1 1 UNITED STATES DISTRICT COURT 2 FOR THE EASTERN DISTRICT OF MICHIGAN 3 SOUTHERN DIVISION 4 5 BARBARA GRUTTER, 6 For herself and all others 7 Similarly situated -- 8 Plaintiff, 9 -v- Case Number: 97-CV-75928 10 LEE BOLLINGER, JEFFREY LEHMAN, 11 DENNIS SHIELDS, and REGENTS OF 12 THE UNIVERSITY OF MICHIGAN, 13 Defendants, 14 And 15 KIMBERLY JAMES, et al., 16 Intervening Defendants. 17 ------------------------------------/ VOLUME 10 18 BENCH TRIAL 19 BEFORE THE HONORABLE BERNARD A. FRIEDMAN 20 United States District Judge 21 238 U.S. Courthouse & Federal Building 22 231 Lafayette Boulevard West 23 Detroit, Michigan 24 THURSDAY, FEBRUARY 8, 2001 25 2 1 APPEARANCES: 2 3 FOR PLAINTIFF: Kirk O. Kolbo, Esq. 4 R. Lawrence Purdy, Esq. 5 6 FOR DEFENDANTS: John Payton, Esq. 7 Craig Goldblatt, Esq. 8 On behalf of Defendants. 9 10 George B. Washington, Esq. 11 Miranda K.S. Massie, Esq. 12 On behalf of Intervening Defendants. 13 14 COURT REPORTER: Joan L. Morgan, CSR 15 Official Court Reporter 16 17 18 19 20 21 22 23 24 25 3 1 I N D E X 2 3 WITNESS: PAGE: 4 WALTER ALLEN 5 Cross Examination by Mr. Kolbo 5 6 Re-Direct Examination by Ms. Massie 110 7 8 EUGENE GARCIA 9 Direct Examination by Mr. Washington 125 10 11 ERIC FONER 12 Direct Examination by Ms. Massie 13 Cross Examination by Mr. Richter 14 Cross Examination by Mr. Payton 15 16 E X H I B I T S 17 MARKED RECEIVED 18 19 20 21 22 23 24 25 4 1 Detroit, Michigan 2 Thursday, February 8, 2001 3 (At or about 9:10 a.m.) 4 -- --- -- 5 THE COURT: You may be seated. Thank you. Good 6 morning. 7 MS. MASSIE: Judge, a rescheduling thing. I think 8 particularly with Professor Allen's cross exam starting now, 9 we should plan on starting David White tomorrow morning, 10 go from Professor Allen into Dean Garcia of the Berkley 11 Graduate School of Education, and then into Professor Eric 12 Foner today, and I think that will pretty much take up the 13 day. 14 THE COURT: And tomorrow is who? 15 MS. MASSIE: Tomorrow we start with David White, 16 who will testify about race and the LSAT. 17 We also have Rick Lempert who has done a study of 18 minority and white grads of the U of M Law School, and 19 Frank Woo, who is an expert on Asian Americans and 20 affirmative action. 21 THE COURT: Great. Okay. 22 Good morning, Mr. Kolbo. 23 MR. KOLBO: Good morning, Your Honor. 24 Good morning, Dr. Allen. 25 THE WITNESS: Good morning, Attorney Kolbo. 5 1 CROSS EXAMINATION 2 BY MR. KOLBO: 3 Q We have met before? 4 A Yes. 5 Q I want to start out by asking you some questions about 6 the methodology of the focus groups that you assembled at 7 Michigan and elsewhere. 8 First of all, there are -- among the schools that 9 you looked at, three of them are quite large institutions; 10 correct? 11 A That's true. 12 Q University of Michigan, Michigan State, and University 13 of California Berkley are quite large undergraduate 14 institutions, is that correct? 15 A All the institutions are sizable, yes. 16 Q And correct me if I'm wrong, but my understanding is 17 that Michigan, the undergraduate school, the principal 18 undergraduate school has about 20,000 students or so, 19 does that sound about right? 20 A I would have to check the figures, but I can take your 21 word for it. 22 Q Okay. And Berkley has about just a few more, between 23 20,000 and 23,000 students, roughly, undergraduate, would 24 that be correct? 25 A Probably seems appropriate. 6 1 Q Michigan State a little larger, around 30,000-some 2 students at their undergrad school, seem fair? 3 A I haven't studied the figures, so I'll have to trust 4 your figures. 5 Q Harvard, around 6,000 or 7,000 students, undergraduate 6 school. If I'm right, it looks like you were conducting 7 focus groups at institutions that had, at the undergrad, 8 these undergraduate institutions, between 75,000 and 80,000 9 students, would that be -- does that sound reasonable? 10 A As I said, I have not looked at those figures, so 11 I'll have to trust your numbers. 12 THE COURT: Your mike may not be on. Everybody 13 came, they might as well be able to hear us. 14 BY MR. KOLBO: 15 Q Okay. About 75,000 to 80,000 students, if I'm right, 16 in terms of the number of students at these undergraduate 17 institutions, and am I correct that the number of students 18 in your focus groups all together, for all of the focus 19 groups together at the undergraduate level, you looked -- 20 you had 68 students; is that right? 21 A We had 68 students in the focus groups and we had 22 another 200 surveys from those campuses, and as I had 23 mentioned yesterday, in the past I have done research that 24 included 5,000 African American students randomly sampled 25 nationally, and in the upper midwest another study of 7 1 2,500 students sampled nationally. 2 Q I was asking about your focus group work. 3 A Well, in terms of the focus group numbers, that's a 4 correct number. 5 Q That's correct, right, 68? 6 A But I was trying to give you some context. 7 Q Sure. I appreciate that, but I want to focus on some 8 of these questions and then we will talk about some of these 9 other issues perhaps later, but 68 students in the focus 10 group, and you said 200 surveys, right? 11 A That's correct. 12 Q And did that include the 68 students? 13 A Yes, it did. 14 Q So another 130 or so students who filled out surveys 15 and did not attend focus groups? 16 A That's correct. 17 Q And about half of the focus groups at the undergrad 18 level were University of Michigan campus, right? 19 A Purposely so, yes. 20 Q So about 30-some students out of 125,000 were included 21 in the focus groups at the University of Michigan undergrad 22 school, true? 23 A That's true. 24 Q And of the remaining, another 30 or 40 students were 25 in the focus groups out of the approximately 40,000 to 8 1 50,000 at these other undergraduate institutions; correct? 2 A Yes. 3 Q Two focus groups at Harvard? 4 A That's correct. 5 Q About a dozen students or so? 6 A Yes. 7 Q Out of 6,000 or 7,000, true? 8 A The 6,000 or 7,000, as I said, I'll trust you for that 9 number. I'll have to again check it in order to, you know, 10 assert that it's a correct figure, but the figure for the 11 focus groups sounds like it's on target. 12 Q About a dozen out of the entire Harvard undergrad 13 campus at the focus groups? 14 A That's probably correct. 15 Q And you had three focus groups at Berkley, so that's 16 about twelve to fifteen students at that campus? 17 A I would have to look at the numbers, because those 18 numbers sound a bit lower for me. Do you want me to give 19 you an accurate count on the focus groups at Berkley? 20 Q I think we have -- - is it report page seven, am I 21 right, following page seven? I guess we can be specific 22 about this. 23 A I'll have you help me. 24 THE COURT: Page 7 in Exhibit 157? 25 MR. KOLBO: It's actually right behind figure two. 9 1 It's an unnumbered page. 2 BY MR. KOLBO: 3 Q Now, these we don't have the identification of the 4 school here, do we? 5 A No. 6 Q But maybe you know what they are. 7 A I do. 8 Q And so from Michigan State, we have one focus group 9 from Michigan State, and which one is that? 10 A Correct. The one focus group from Michigan State -- 11 just a second, I'll check my files. 12 The Michigan State focus groups are twelve. 13 Q Number twelve? 14 A Yes. 15 Q So that's two people? 16 A Yes. 17 Q Two people out of whatever the size of that campus is, 18 consisted of the entire focus group at the Michigan State 19 University? 20 A And I should add we ended up collecting a larger 21 number of surveys from Michigan State. 22 Q Okay. They are part of the 200? 23 A Yes, they are. 24 Q But for the focus group, just two students? 25 A Correct. 10 1 Q One man and one woman? 2 A Correct. 3 Q And then at Berkley you had three focus groups. 4 Which three are those? 5 A The three focus groups at Berkley, the group was 6 number ten, number six and number four. 7 Q Okay. So number four has five people in it? 8 A Correct. 9 Q All African American? 10 A Yes. 11 Q Number six has seven people in it, correct, all 12 Latino? 13 A All Latino. 14 And by the way, they were purposely selected to be 15 restricted to those groups. 16 Q Sure. And I'll ask you about that, but so far, twelve 17 students so far; correct? 18 A That's right. 19 Q And then the third one has got six in it, so we have 20 got -- and I hate doing math up here publicly, but 18? 21 A Sounds correct. 22 Q So 18 students were in the focus groups at the 23 University of California at Berkley? 24 A Sounds correct. 25 Q Out of the entire undergrad campus there? 11 1 A That's correct. 2 Q And two were at Harvard. Which two were those? 3 A The two Harvard focus groups are number three and 4 number seven. 5 Q Okay. Number three had six people in it, all African 6 American, and number seven had five in it? 7 A Number three was an African American focus group and 8 similarly with number seven it was a Latino focus group. 9 Q So a total of 11 students were involved in the Harvard 10 focus group; correct? 11 A Correct. 12 Q The average size of these groups, it looks like it's 13 five to six students; true? 14 A Average size of a focus group that's effective has 15 to be between five and eight, no more than ten students, 16 otherwise, you don't have the discussion. 17 Q And at the -- I'm going to try to talk about these 18 kind of separately, but while we're talking about numbers, 19 the total number in addition to those undergraduate focus 20 groups, you had some law school focus groups, as well? 21 A That's correct. 22 Q Those were all at the University of Michigan Law 23 School? 24 A Exactly. 25 Q There were a total, as I understand it, of 31 students 12 1 on the figure behind page 60, I think, of your report? 2 A That is a correct number, I think. It sounds correct. 3 Q And that's 30 out of, I don't know, what is it, about 4 1,000 students all together at the University of Michigan 5 Law School? 6 A Again, that's a figure I don't necessarily remember. 7 Q Now, and you mentioned, you just testified that these 8 were intentionally by and large racially segregated focus 9 groups, correct, that was by design? 10 A I'm pausing because of the term of segregated focus 11 group. These were targeted focus groups, that's the term 12 that I would prefer, because segregation for me just 13 suggests the old problematic heritage of legal exclusion, 14 and in fact, we did focus groups across each of the racial 15 groups and each of the ethnic groups and each of the gender 16 groups and in fact were trying to standardize the groups, 17 which is a statistical procedure; that is, you try to 18 control for variation in terms of other external 19 characteristics, so thus we targeted the groups and 20 organized them in terms of, in some instances, in most 21 of the instances, in terms of shared racial identity. 22 But you are aware, I'm sure, that there were several 23 of the groups that were purposely mixed race and mixed 24 ethnicity. 25 Q But they weren't -- you mentioned the word legally 13 1 segregated after, and of course I didn't mean that, but 2 they were intentionally or purposively segregated by race, 3 correct, as part of the design of this case? 4 A And again, I object to the term, segregated. 5 They were a targeted group. They were a group that was 6 standardized and they were a group that was assembled with 7 the idea and goal of assembling them around those common 8 identities. 9 Q Okay. Well, I do understand you're in favor of, 10 you believe we ought to have integrated racial campuses, 11 correct? 12 A Absolutely. 13 Q Would you agree with me? 14 A And an integrated society, and the two are linked, if 15 I might. 16 Q And would you agree with me that most of these focus 17 groups were not racially integrated, were they? 18 A And as I have spent some time explaining, anticipating 19 that perhaps such an incorrect assessment might be made, 20 the groups were, as previously mentioned in several cases, 21 specifically targeted and organized around common or shared 22 racial or ethnic identity, in one case, in another case or 23 category around shared gender identity, but as you do recall 24 from looking at the data and as I said a moment ago, some of 25 those groups were purposely mixed, but they were mixed in 14 1 terms of race and ethnicity, but with the members, for 2 example, sharing common gender status. 3 Q Okay. I won't use the word in my next question, 4 integrated or segregated, but only two of the twelve 5 groups were racially mixed; correct? 6 A That's probably correct. 7 Q And only one of the groups was all white; correct? 8 A That's correct. Well, no, no, that's not correct. 9 You mean -- which are you talking about, are you talking 10 about the law school or the undergrad? 11 Q I'm sorry, I shouldn't go back and forth. I was 12 looking at the figure for the undergrad schools, only one 13 of those twelve was -- 14 A One of the twelve for the undergrad. 15 Q And while we are on the subject, I guess -- 16 A And one for the law schools. 17 Q Okay. So one of each? 18 A Yes. 19 Q Each group was all white. Do you think there would 20 have been some benefit to have seen what the interaction 21 might have been with more mixing of the races in these focus 22 groups? 23 A Obviously, the more information you get the better, 24 but given as I mentioned yesterday, limitations in terms of 25 resources, limitations in terms of time and the specific 15 1 focus of this research, that goal was one that was of lesser 2 priority than the advantages that would accrue from having 3 students in a group of other students who are like 4 identified and then benefitting from their feeling free to 5 discuss the kinds of issues that are of importance and note 6 to them. 7 And I would -- as an aside to that, of course, I had 8 taught at the University of Michigan for some ten years, I 9 have been teaching at UCLA for another twelve, and I have 10 been teaching for twenty-five years plus, and needless to 11 say, my classes have had exactly the kind of mix that you 12 describe, and so I have learned some lessons from that 13 mixture, as well, and from the interaction of the sort 14 you're referring to. 15 Q One of the things you just mentioned was that, as I 16 understand, that one of the reasons you chose to organize 17 these groups the way you did was that the students would 18 feel free to say what they are thinking? 19 A Precisely. 20 Q And is your opinion then that the students would feel 21 free to say what they are thinking in groups that were not 22 racially mixed? 23 A I definitely think that's true. 24 Q How about if you had a racial group that was half 25 and half, half minority, half white, say, would, in your 16 1 opinion, would students of all, both races, feel free to 2 express what's on their mind in that situation? 3 A I think as I have pointed out yesterday, if you 4 move to a situation where you have closer to equal 5 representation, then indeed you would likely get some 6 discourse and exchange between equals, but I don't know 7 that I'm following the point that you're making. 8 Q Well, I'm not -- you know, I'm not asking you to 9 accept any point that I'm making, but I'm just wondering 10 whether students would, in your opinion, would feel free 11 to speak their minds as you don't think they would be in 12 some circumstances, as long as, say, there was equal 13 representation of the group? 14 A I think they would feel free to say some things, but 15 there are some utterances that no matter what the mix in the 16 room, I mean, in terms of the proportionality in terms of 17 the two racial groups, for example, black and white, that 18 students would not feel free to say, compared to the sense 19 of liberty that they would experience in, say, an all white 20 group, and it's, I think, a fairly straightforward reality, 21 because if we think about our lives, if you think about your 22 life, I mean, we talk differently in -- depending on the 23 racial group that we are a member of. 24 I mean, if we are in a homogeneous racial group, 25 then some of our comments about people of other races are 17 1 different than what they might be, than what they would 2 likely be in the presence of people of that race, and 3 similarly, the point holds with gender. 4 Q You mentioned something about an all white group. 5 What about if you had an all black group, does that make 6 the discussion freer or less? 7 A Absolutely. That's exactly the point I'm trying to 8 make. 9 Q How about a black group that has a few white students, 10 would black students feel, in your opinion, free to express 11 themselves then? 12 A I would have to think about that a bit and I would 13 have to look at some research that has looked at questions 14 of proportionality and how that influences, either inhibits 15 or enhances interaction, so I'm not quite sure how to answer 16 that question. 17 Q What it sounds like is your opinion, but correct me if 18 I'm wrong, that mixing the races to any extent, there's some 19 inhibiting of people of different races feeling free to 20 express what is on their mind; is that fair summary? 21 A That's very fair in this society, because as you know, 22 race talk is very difficult for us as a society, and it 23 becomes even more difficult when we have other racial group 24 members in the room, but needless to say, those are lessons 25 we need to learn, and to the extent that you look at work 18 1 of someone like Silveri Atado, and you see the sort of 2 variations in exchanges that occur as a result of the mix 3 of racial proportions in a room, then you come away feeling 4 encouraged, if you will, that as students do have a way of 5 working through these issues, but those tensions are there, 6 because race talk, race relations in this society are very 7 difficult. And challenging is the word I should use. 8 Q Let me move on a little bit here. 9 You testified yesterday about the differences 10 between qualitative and quantitative analysis; correct? 11 A Methodology analysis, yes, I did. 12 Q There are differences between those two, there are 13 strengths and weaknesses of both? 14 A Correct. 15 Q What you did with respect to your focus group work is 16 qualitative research; correct? 17 A That's correct. 18 Q Not quantitative; correct? 19 A Correct. 20 Q And I just want to make sure I understand some of the 21 differences, and maybe some of the strengths and weaknesses, 22 as well. 23 Do I understand that with a quantitative -- well, 24 first of all, one type of quantitative analysis is what is 25 called, and I think you referred to this term before, is 19 1 probabilistic studies, right, if you're familiar with that 2 term? 3 A I am. 4 Q Okay. I mean, I think in your deposition I think you 5 mention it a few times. 6 A Okay. I responded to your mention of it. It's 7 actually not a term that we use, but I understood what 8 you were referring to. 9 Q In terms of probabilistic, a probabilistic study is a 10 form of a quantitative assessment; correct? 11 A Studies that are probabilistic and based on 12 probability are normally referred to as inferential 13 statistics. 14 Q Okay. 15 A And so just very quickly, when you start talking about 16 using an inferential methodology, essentially what you are 17 posing is that the sample on which you base your analysis 18 is a representative sample, it's a randomly selected 19 sample, it's a sample that can be said to represent the 20 characteristics accurately or within some degree of error 21 of the total population, and so thus, this notion of using 22 an inferential technique and inferential statistics. 23 Q You said that a lot better than I could have asked 24 the question, so I appreciate that. 25 A Okay. Just trying to be helpful. 20 1 Q What you have described is not what you would do with 2 respect to focus groups, your focus groups, correct? 3 A What I describe is one of the many methodologies that 4 I have used in my research for years, and in fact, if I 5 can elaborate and give you a sense of anticipating your 6 question about strengths and weaknesses of areas -- 7 Q Can I just -- I would like to sort of do this, 8 otherwise I lose track of my thoughts here -- 9 A Okay. 10 Q -- and get the answers to the questions that I have 11 got, first of all, here, and your -- 12 A I apologize. 13 Q And Ms. Massie will have a chance to be asking you 14 some of these questions, as well. 15 A I'm trying to be responsive. 16 Q You described, I think, very -- at least to my 17 perfect understanding what a probabilistic study is and your 18 description of that contains some of the strengths that are 19 associated with quantitative research; correct? 20 A Correct. 21 Q And the characteristics that you have described 22 with respect to this, to a probabilistic or inferential 23 statistics study, those aren't the characteristics that are 24 applicable to the focus group that you did, correct, just 25 the focus group work? 21 1 A That is a correct comment. 2 Q One of the things that a probabilistic study does or 3 an inferential statistics study does is you get -- you look 4 for and it's important to have a random sample of the group 5 that you're studying; correct? 6 A This is correct. 7 Q You don't have that in your focus group work; correct? 8 I think you have acknowledged that. 9 A Focus groups never have random selection in terms of 10 an inferential statistics approach, because it's simply not 11 an appropriate selection procedure to match with focus group 12 methodology. 13 Focus group methodology by its very nature and 14 purpose is intended to focus on a specific small defined 15 population, and then to, if you will, exchange the sort 16 of broad generality you can get from surveys for the rich, 17 detailed content that only comes forward from smaller group 18 discussions or from intensive individual interviews. 19 Q So focus groups don't depend upon randomness; correct? 20 A Not at all. 21 Q They don't depend on a representative sample; correct? 22 A The representativeness of a focus group comes in 23 exactly the point you were asking about earlier; that is, 24 you want focus groups that reflect or incorporate key 25 dimensions of variation within the population, so thus the 22 1 rationale for an African American or a Latina/Latino or a 2 white focus group. 3 Q But representativeness has a -- that's a term of art 4 in inferential statistics; correct? 5 A I'm not sure I'm following that question. 6 Q Well, don't you understand that representativeness 7 of a sample is something that's important in inferential 8 statistics? 9 A For inferential statistics, yes. 10 Q And as that term is used and as it's important in 11 inferential statistics, you don't need that, you don't 12 look for that, in focus group work; correct? 13 A No, you have to have -- well, maybe I'm not 14 understanding your question, but in focus group research, 15 in qualitative research, you have sort of planned and 16 programmed variability, so you do have to have some 17 representativeness, but in terms of it being mathematically 18 calculable, no. 19 Q And I won't belabor this, but just so I understand it, 20 an example of a quantitative inferential statistics analysis 21 that everybody is kind of familiar with is polling data, for 22 example, right? 23 A That's correct. 24 Q We just came through a long presidential election, we 25 all saw a lot of polls, and it's pretty commonly understood 23 1 that one can take a sample of, say, 1,000 American voters 2 and from that 1,000 draw, through inferential statistics, 3 some valid conclusions about how people want to vote with 4 some margin of error that is accurate with respect to the 5 entire population; correct? 6 A It's accurate in the most general sense, correct, and 7 as you said, depending on the degree of -- with some degree 8 of error. 9 Q And just to be -- I want to make sure I'm 10 understanding this, one can draw statistically valid and 11 reliable conclusions from that group of 1,000 to the 12 larger population of, say, 80 million or 100 million, within 13 a margin of error? 14 A But only certain kinds of conclusions, so I think 15 that is a correct point. 16 Maybe it would help if I just made a fairly simple 17 distinction between quantitative and qualitative statistics, 18 which is a discussion that we're having now, and the 19 quantitative approach is more of a snapshot, so it's a 20 snapshot of a larger whole, if you will, but what you get 21 with qualitative methodology is something that's akin to a 22 video. You get more of the process, so that's why, in fact, 23 the field is moving toward using the two methodologies and 24 perspectives in sort of congruence or in concert. 25 Q Okay. But I also understand, am I right, that while 24 1 with quantitative analysis you can draw these statistically 2 valid and reliable conclusions from the sample to the larger 3 population, you can't draw those statistically valid and 4 reliable conclusions from the small sample of a focus group 5 to the larger population, correct, that's the weakness of 6 focus groups? 7 A The weakness of focus groups is that you don't have 8 an estimate of the probability to which the conclusions 9 represent the whole. 10 Q Right. You can't draw -- 11 A And thus, you rely on survey data for that purpose. 12 Q Right. In focus group work you can't draw and rely 13 upon statistically valid and reliable conclusions from the 14 small focus group sessions to the larger population being 15 studied, right, in terms of the statistical reliability 16 of validity, is that a fair statement? 17 A I'm pausing, because really the distinction is a 18 mathematical one, and so the lessons that you learn from 19 inferential statistics or the lessons that you learn from 20 what you referred to as probabilistic studies, even though 21 they may be wrong or incorrect, you can say the degree to 22 which that particular finding can be presumed to represent 23 what you would find -- 24 Q Sure. 25 A -- within the larger population, and I say, even 25 1 though it may be incorrect, because often you're using 2 the wrong questions or you are using faulty instruments, 3 so I'm saying that it's not a substantive determination so 4 much as it is a mathematical or a statistical one, so. 5 Q Right. 6 A It's a matter of it not necessarily being truth, 7 that's what I'm trying to make sure we don't get -- 8 Q There could be flaws in a question, I suppose, but as 9 to statistics and mathematics, one can draw these valid and 10 reliable conclusions to the larger population? 11 A You can, and being cautious that you may in fact be 12 using the wrong instruments and asking the wrong questions 13 and not understanding the process. 14 Q Okay. And you don't do that with focus groups, that's 15 just one of the features of focus groups? 16 A Right. 17 Q Okay. And you have mentioned that your focus group 18 work was purposive; right? 19 A The sampling was purposive. 20 Q And purposive meaning you had certain predetermined 21 criteria that you were relying upon in the selection of your 22 sample, of your focus group sample? 23 A And I have actually shared those criteria. The point 24 is that what we wanted to do is to select from the pool of 25 African American students who said they were interested in 26 1 serving in a focus group, and by the way, that selection was 2 random, but the original pool was not a random pool, but 3 having gotten that pool, then, we randomly selected and 4 assigned people to the two African American focus groups, 5 let's say. 6 Q And my understanding is -- 7 A Excuse me for interrupting. 8 So the purposive dimension is really quite simple. 9 It was in terms of wanting to have a sample of a number of 10 focus groups that were homogeneous in terms of race, and 11 in the second case a number of focus groups that were 12 homogenous in terms of gender. 13 Q But within that, then, you were actually looking for 14 students from particular races? 15 A Yes. 16 Q That's part of the purposive element of this study? 17 A Yes, particular races and particular gender. 18 Q You didn't consider doing a probabilistic study here, 19 did you, or an inferential statistics focus group? 20 A At the University of Michigan? 21 Q Right. 22 A I have done ten years of probabilistic research at the 23 University of Michigan and found it inadequate for reasons 24 we have been discussing. I kept finding these correlations, 25 but I had no handle on the underlying dynamics that would 27 1 produce a correlation, for example, that translated into 2 students of color being less satisfied with their 3 educational experience and students of color having lower 4 GPA's, students of color having higher rates of alienation 5 and feelings of isolation, so thus the need to match up with 6 that that data from qualitative research, because as you 7 know, the inferential research can only go so far, it can 8 just -- so for those ten, twenty years, I have been looking 9 at and examining correlations, and so, thus came the need to 10 try to dig deeper into the relationships and understand the 11 movie part, if you will, what the dynamics are and what the 12 process is. 13 Q And the quantitative work that you have done in past 14 years doesn't answer any of those explanatory questions 15 about what's going on with respect to minorities and grades 16 and discrimination; correct? 17 A It answers those questions, but only to the level of 18 general patterns and relationships between variables, so 19 again, I could do all the analysis and indeed did the 20 analysis using sophisticated quantitative techniques so that 21 you can look at basic correlations between major variables 22 and then break those down, but then ultimately what is 23 missing to a sizable extent is the human voice and the 24 human experience and the sort of dynamic dimension. 25 So I'm simply answering a qualified yes to your 28 1 question. I mean, the surveys could answer certain kinds 2 of questions, but they could not answer a question, for 3 example, about the actual human toll of individuals and how 4 they feel on a daily basis and it could not extract the 5 specific instances of racial discrimination, if you will, 6 or of gender harassment. 7 Q And for that information, we have your focus groups? 8 A Correct. 9 Q Now, you're familiar with the concept, and I think 10 this might have been touched upon yesterday, but you're 11 familiar with the concept of selection bias? 12 A Yes, I am. 13 Q Selection bias is a bad thing? 14 A In inferential statistics, and as you say, 15 probabilistic studies, yes. 16 Q Isn't selection bias also bad for focus group work? 17 A Absolutely not, because it's purposive. 18 Q So you wouldn't mind having a biased focus group 19 designed -- a bias in the design of your focus group? 20 A Let me back up. In terms of selection bias, I should 21 have asked you what you meant by the term, but as I heard 22 the question, it seemed to me to be relinking back to this 23 concern with kind of representativeness, so I answered in 24 that frame. Representativeness is not the same goal with 25 qualitative research as it is with quantitative research. 29 1 Now, obviously, bias itself is problematic or a 2 sort of selection bias that would, for example, fill a 3 focus group with people who are biased on the question. 4 Q Okay. 5 A It could be problematic. It may well be that if 6 you're trying to understand prejudice, you want to have a 7 focus group filled with people who are very prejudiced. 8 Q Okay. And I think I understand where we're diverging 9 here. If you use the word, bias, in a very broad sense, as 10 sort of a neutral sense, your focus group work is biased 11 because you're biased toward finding certain ethnic groups, 12 you know, you want certain ethnic groups, that's the only 13 sense in which that bias occurs; correct? 14 A See, I hesitate to accept that, that's why I tried 15 to back off and reframe, because again, the selection 16 criteria are not biased, they are built into the focus 17 group structure, and I imagine it would become biased if, 18 for example, you left out an important or a major racial 19 group, but even there it just depends on the purpose of 20 the research. 21 If you are trying to understand how women experience 22 gender hostility, then a very reasonable case can be made 23 for studying women and only studying women. 24 Q And you have anticipated one of my questions, which 25 is, if you're studying an issue, how people feel about an 30 1 issue, it would be a bad form of selection bias to design 2 the selection of the group or the focus group so that the 3 individuals were skewed in their views one way or the 4 other on the issue being studied; is that a fair statement? 5 A I think it could be potentially problematic. 6 Q Wouldn't that be -- 7 A It wouldn't be necessarily fatal. It depends on the 8 skill of the person who is facilitating the focus group, and 9 again, it depends on your goals. 10 Q Wouldn't you agree that it would be a perversion of 11 the process to try to skew the sample on the issues before 12 it in a focus group? 13 A I'll try to repeat a point I have just made. There 14 are times when your goal is to include in a focus group, 15 if you will, a certain point of view, a certain set of 16 experiences, and so in that sense it's not at all a 17 perversion, but it's consistent with what you're trying to, 18 if you will, standardize, so if you're doing a study of 19 individuals who have experienced racial profiling in terms 20 of unwarranted stops by traffic cops, then it may well be 21 that you want to include in that focus group structure, 22 instead of students, people who have had that experience. 23 Q Let me ask it this way: If you're studying the issue 24 of whether affirmative action or the taking of race into 25 account in the admissions process is something that should 31 1 be maintained, would it skew the selection of the focus 2 group to do anything in the design to try to get students 3 who have expressed a particular point of view on that 4 subject? 5 A I think that our judgment was that, certainly -- 6 Q It's just a general question, not specifically about 7 this case. 8 MS. MASSIE: I would just ask you to let the witness 9 finish his answer. 10 THE COURT: Well, he can finish the answer, but I 11 think he has limited it generally as opposed to this case. 12 THE WITNESS: Our judgment -- 13 MS. MASSIE: I'm just asking -- excuse me for 14 interrupting, Professor Allen. I'm just asking that the 15 witness not be interrupted by Mr. Kolbo. This happened 16 repeatedly at his deposition. 17 THE COURT: Well, first of all, make your 18 objections. I don't know what happened at the deposition. 19 Make your objections. We're at trial today, and if you have 20 an objection, make it. 21 MS. MASSIE: I'm objecting to the interruption 22 of the witness. 23 THE COURT: Overruled. 24 Go on, but phrase your question the way you want it 25 answered. 32 1 BY MR. KOLBO: 2 Q Would it be fair in a general sense, Dr. Allen, if 3 you're studying, if you want to study whether or not 4 affirmative action is something that should be used in 5 college or law school admissions, it would be a perversion 6 of the process to try to skew the sample, focus group 7 sample, in one direction or the other on that, on how 8 students feel about that issue, fair enough? 9 A I think that's a fair enough statement. I find the 10 reference to a perversion of the process, skewing -- but 11 generally, I guess that's a reasonable position. 12 Q Well, you just mentioned you gave a deposition in this 13 case; correct? 14 A I did. 15 Q You have a copy. I think we placed a copy of your 16 deposition up there. 17 A I see it. 18 Q Could you go to page 68 of the transcript, line three? 19 A Page 68, line three? 20 Q Yes. 21 A Yes, sir, I have it. 22 Q And feel free to read the context here, but I'm going 23 to ask -- I'm going to read a question. You, I think, were 24 clear enough for myself in the answer, but if you want to 25 take a look at the question, the question on page 68, line 33 1 number three: "And would you agree it would be a 2 perversion of the process to try to 3 skew that sample or that group of 4 students in one direction or the 5 other; correct?" 6 Answer: "Exactly." 7 I mean, was that your answer? 8 A That's my answer, and as you pointed out, it's in 9 a context. We had had a discussion or you had asked me 10 several questions about the recruitment procedures prior 11 to that on page 67 and I indicated that there was a very 12 broad recruitment strategy where we used e-mails, we used 13 newspaper articles, we used petitions on the street, visits 14 to classes, and so in that context of the discussion, as we 15 came to this question, most certainly I agreed with you, 16 because I had sort of gone to great pains to demonstrate 17 that, in fact, we took a number of explicit approaches and 18 strategies to avoid exactly such skewing and distortion. 19 Q Would it, in the design of this study, these focus 20 groups, would it have been improper in selecting the 21 students for the focus groups to try to get students who 22 have a view that affirmative action ought to be maintained 23 and to try to skew the sample in favor of that direction, 24 would that be proper? 25 A I think it would not have -- basically, each one of 34 1 our communications indicated that we wanted to have a broad 2 representation of perspectives, and so in that sense it 3 would be no more improper to include students who were 4 supportive of affirmative action than it would be to include 5 those who objected to affirmative action, and indeed, if you 6 look at the transcripts, you see we have clear evidence that 7 we had balance in that respect; that is, people voicing 8 support and others voicing either reservations, if not 9 strong objections to it. 10 Q But my question is, would it be improper in the 11 design, in actually going out and trying to assemble these 12 focus groups, to go out and try to skew the collection of 13 students with students who have a view in one direction; 14 that is, that they favor the use of affirmative action, 15 would that be improper if it were done? 16 A If, in fact, you're asking me would it be improper 17 to just stack the deck and only include students who were 18 supportive of affirmative action, I would say yes, I agree 19 with that. 20 Q Well, that wasn't exactly the question, but would it 21 be improper as part of the design of this group to go out 22 there and to try to assemble a group of students primarily 23 who were proponents of affirmative action? I'm not asking 24 you to admit that you did it here, but would that be 25 improper, if it was done that way? 35 1 A If we're still in the general case, it would not be 2 at all improper if you are trying to study students who are 3 supporters of affirmative action and you want to understand 4 the dynamic, the sort of life course that brought them to 5 the point of supporting affirmative action. 6 Similarly, if you wanted to understand how it is 7 that students came to object to or to not favor affirmative 8 action, then again, it would make sense to assemble a group 9 of students who did not support affirmative action, if 10 that's the focus group. 11 Now, if you're doing survey research, of course, 12 you want a broader representation. 13 Q Backing up a little bit, you gave me an answer a 14 question or two ago that suggested that -- suggested and I 15 want to clarify this -- that in the groups that you actually 16 assembled you got a wide difference, you got widely 17 different views on whether affirmative action is something 18 that ought to be continued; is that -- 19 A Absolutely did. 20 Q So you got a -- was there a significant number of 21 students who participated in these focus groups that thought 22 that affirmative action ought to be discontinued on college 23 campuses and law schools? 24 A No, there were not, but as my survey data demonstrated 25 both in terms of the surveys for this study, in conjunction 36 1 with Grutter, as well as national survey data of my own and 2 national survey data collected by others, that there is a 3 majority support for affirmative action among college 4 students. 5 Q What percentage? Do you have some idea what 6 percentage? 7 A I'd have to look up those statistics, to tell you 8 the truth. 9 Q Well, I'm talking now about focus groups. 10 A Oh, I'm sorry. 11 Q So what percentage if your focus group respondents, 12 roughly speaking, were opposed to the use of race as a basis 13 for admission, affirmative action? 14 A I actually can't tell you that, for reasons related 15 to the discussion we have had to this point. We're talking 16 about qualitative data, and so those kinds of percentages, 17 but indeed, the surveys and the percentage of students who 18 reported that they did not support affirmative action, 19 that's summarized in survey data. That's part of this 20 report. 21 Q Okay. And were there minority students in these focus 22 groups and the surveys who indicated that they were opposed 23 to the use of affirmative action in college admissions and 24 law schools? 25 A In the surveys, a few. 37 1 Q And how about in focus groups? 2 A Some, again. 3 Q If I could ask you to turn to Exhibit 176. Do you 4 have that book up there, that volume? 5 A I don't see it. I have Exhibit 158 through 160. 6 MR. KOLBO: May I approach, Your Honor? 7 THE COURT: You may. 8 THE WITNESS: Thank you. 9 BY MR. KOLBO: 10 Q Is Exhibit 176 one of the e-mails that was sent out to 11 solicit students for the focus groups that you used at the 12 undergraduate level? 13 A Yes. 14 Q Now, you were involved in the design of some of the 15 solicitations, the e-mails and so forth that went out; 16 correct? 17 A I provided the core of the solicitation and literally 18 did not solicit the students. I purposely did not want to 19 solicit the students myself, so what I did was to provide a 20 core to just a group of students, a group of organizations, 21 that would do the recruitment. 22 Q Okay. You were involved -- 23 A Building the pool that we had talked about. Excuse me 24 for interrupting. 25 Q I'm sorry. 38 1 You were involved in the -- you had some hands-on 2 involvement in reading or at least approving some of the 3 solicitations that went out; correct? 4 A No, what I did was to -- and maybe I'm -- well, 5 I wrote and sort of agreed to a core recruitment and 6 description of the studies, so in other words, if you look 7 at each of the solicitations, you'll see that the study 8 purpose is described, the study structure, our research team 9 is identified, and the dates are there. So that general 10 information we provided, yes. 11 Q But isn't it true that you actually approved the text 12 of this particular e-mail exhibit? 13 A Which one. 14 Q Exhibit 176. 15 A Yes. 16 Q Okay. So you read it before it went out and you 17 reviewed it and you approved it; correct? 18 A With each of these, what I approved was the core 19 portion of it, so I cannot definitively say that sort of 20 the formal form is -- the final form is something that I 21 approved, but I will say to you quite, quite clearly that 22 the solicitations went out with my approval. 23 Q Well, you have had a chance now to read Exhibit 176. 24 There is nothing in there that you would have disapproved of 25 or did disapprove of? 39 1 A No, there is nothing here that would have been 2 terribly problematic for me. 3 Q Okay. 4 A Mainly because I had factored in a sort of stop gap or 5 a supplemental selection procedure of sort that I described; 6 that is, in other words, I knew that I would get a pool of 7 students from which we would select and assign to focus 8 groups. 9 Q Okay. 10 A So. 11 Q And one of the things that this e-mail informed 12 people was that: "This is a chance for students at 13 Michigan State University, in this case, 14 to contribute to a legal case that will 15 impact the educational opportunities of 16 minority students for generations to come. 17 It is our Brown versus Board of Education, 18 and we must do everything we can to 19 insure victory." 20 You approved that message going out in a selection 21 of these focus groups; correct? 22 A Sure, yes, I did. 23 Q Wouldn't you agree with me that that injects just a 24 little bit of selection bias into the way in which these 25 focus groups were designed? 40 1 A I could, possibly, yes. Possibly, yes. I hesitate, 2 because as you pointed out at the very beginning of your 3 cross examination, we're talking about two students out 4 of 68 for the Michigan State students, so any selection 5 bias that might have occurred certainly was considerably 6 diminished just by that very insignificant fraction of 7 the total. 8 Q Well, this would have gone out to whoever was 9 solicited at Michigan State University; correct? 10 A In terms of focus groups, yes. 11 Q Okay. And do you know whether this form went out to 12 other schools as well or don't you know that? 13 A No, no, I have the forms for the other schools. I 14 think you have those in 177 and 178, and indeed, I think a 15 second form went out at -- to Michigan, only Michigan State 16 campus, but unfortunately, we just didn't get very many 17 responses from Michigan State, period. 18 Q If you were to design this e-mail over again, is it 19 fair to say you would do it differently, you wouldn't have 20 this exhortation to get students who felt that we must do 21 everything we can to insure victory? 22 A I would have to think about that, because the fact of 23 the matter is that you're trying to get students to take 24 very precious time to participate in research, so you're 25 challenged in terms of interesting them, but probably that 41 1 particular phrase we may have left out, but you'll see 2 phrasing in some of the other e-mails that e-mail list 3 statements that simply said this is a crucial and important 4 case and it's their opportunity to make a contribution, and 5 we then go on to talk about the fact that we want the 6 broadest range and perspectives represented. 7 Q Were any e-mails sent out looking for students who 8 felt that the use of race should be discontinued in the use 9 of college and law school admissions? 10 A The general e-mail attracted students like that, along 11 with attracting students who were in favor. 12 Q But did something go out that actually was suggested 13 it was looking for those types of students? 14 A Yes. That's while saying, the general e-mail was 15 looking for those students, that Michigan State -- you asked 16 about the law school; is that correct? 17 Q Well, I was asking generally. 18 A Okay. 19 Q Let's go to Exhibit 177. Is there someplace in there 20 where it is suggested that students are being looked for 21 who have a view in which they believe that the use of race 22 should be discontinued in the use of college and law school 23 admissions? 24 A Several places. 25 First of all, we assure everyone that their 42 1 expressed opinions will be treated confidentially. 2 Q Which is actually not true, is it, they are not 3 confidential, are they? 4 A I don't know the names of any of those students. 5 Q The names -- 6 A That's the notion of confidentiality. And are you 7 aware of names and identities of any of the comments? 8 Q I was asking whether the opinions are going to be 9 held confidential. The opinions are out there. 10 A Well, the opinions are out there before we do the 11 research, and they will be out there after we're done 12 with our research, but in terms of the promise of 13 confidentiality, what you're saying to a student is that 14 anything he or she says will not be associated with their 15 names. 16 Q With their names, okay. 17 A Right. 18 Q If you could then show me where in Exhibit 177 there 19 is a request for students who view -- who believe that 20 affirmative action should be discontinued or erased. 21 A Just a second. I'm trying to -- if you go to the 22 second page, which is page four, at the very bottom of the 23 fax, there is a paragraph. 24 Q I'm sorry, what page are we on? 25 A We're still under Tab 177, the second page, and the 43 1 paragraph that begins: "Please help us recruit 2 as many undergraduates as possible to 3 be participants in this study. We need 4 students of every race and ethnicity, we 5 need slightly more women than men, and 6 we need students with a broad--" and 7 this is the passage that's important -- 8 "and we need students with a broad range 9 of perspectives and experiences, and 10 most of all, we're looking for students 11 who are interested in advancing the 12 debate." 13 So for my purposes, that clearly asks students 14 from all perspectives, and whether they support or oppose 15 affirmative action, to come forward, and indeed, if you look 16 through the transcripts, in one set of responses you see a 17 white male in the law school say that he opposes affirmative 18 action because he feels that it would make black students 19 feel inferior, and it was a very rich discussion that 20 ensued, because then the white female said, oh, is that 21 how you feel about your classmates? And they had an 22 exchange, and it was very interesting and enlightening 23 to hear and experience. 24 Q These e-mails were sent out by United for Equality 25 and Affirmative Action? 44 1 A I think so. 2 Q Do they have a view on this subject, as far as you 3 know? 4 A I don't know the organization very well, but I'm sure 5 they do. I think the designation is very clear. 6 Q Now, who actually was -- who were the -- who was 7 responsible for actually the logistics of actually trying 8 to get these focus groups assembled? 9 A As I said, what we tried to purposely do was to 10 identify students, colleagues on the campus, and then to 11 allow them -- or not allow them, to ask their assistance in 12 distributing the appeals, and so beyond having a central 13 contact person or two on each of the campuses, I, for 14 reasons that we have just been discussing earlier, wanted 15 to stay out of the process of selecting students until 16 after which time I had a pool of students that I had not 17 assembled, and then from that pool we could select students, 18 and where the pool was large enough we actually selected 19 them randomly; that is, we numbered them and did a random 20 selection and assignment of the students from the pool of 21 African American students who expressed an interest. 22 So I'm simply saying on each of the campuses, we had 23 several contacts and I would have to pull the list of some 24 of the people that I used for that purpose. 25 Q But your control, other than approving the -- you 45 1 didn't exercise much control over the selection of the pool 2 other than exercising some approval over the text of some of 3 these messages; correct? 4 A That's correct. And I can't say that anyone could 5 exercise that much control, because, you know, it was a 6 voluntary response. You solicited individuals and then the 7 individuals volunteered to participate, and in some cases 8 students who had volunteered just could not -- we either 9 didn't select them into a focus group or they couldn't make 10 the assigned time and place. 11 THE COURT: If you had more time and resources, 12 somebody gave you a gigantic grant or something of that 13 nature, not necessarily in this case, but in another case 14 of something that you're studying and you wanted to do focus 15 groups, would you -- I have seen ads in newspapers and 16 things like that where it says, we're looking for people and 17 here's what we're going to be studying, something like that, 18 would that be a method that you would use, assuming that you 19 had, number one, a lot of resources and a lot of time? 20 THE WITNESS: Yes, Your Honor. The hypothetical of 21 a lot of research resources and the large grant brought the 22 smile to my face. 23 THE COURT: I'm sure it would. I'm sure if you had 24 a lot more time and a lot more money you would have done a 25 lot of different things. 46 1 THE WITNESS: Yes, sir, I would have, but with the 2 resources that we had, we tried to be sure just for reasons 3 of self-protection to get as many students as possible, so 4 we used a variety of avenues for going into classes, but 5 most definitely, yes, to your question. 6 THE COURT: But that's how you would normally, if 7 you had all the resources and ideal kind of situation, you 8 would do similar -- as I have seen ads in newspapers and 9 journals? 10 THE WITNESS: Yes, sir, right. 11 THE COURT: And things like that? 12 THE WITNESS: Exactly. 13 BY MR. KOLBO: 14 Q Did you rely on help from the lawyers for Intervenors 15 in assembling any of the focus groups? 16 A No, not help from the lawyers, as such. 17 Q Ms. Massie, for example? 18 A No. I basically would spend my considerable network 19 resources. As you know, having been in the business for 20 a while, I have quite a few contacts and colleagues. 21 Q And then you were actually at Michigan for some of 22 these focus groups; correct? 23 A For all of the focus groups. 24 Q For all of them? 25 A Yes. 47 1 Q And who assisted you in sort of the logistics of 2 organizing those groups when you were there? 3 A I would have to look up the names of the students who 4 gave us a hand with the organization, but essentially the 5 process was as follows: After we had a pool, then we would 6 reserve rooms and assign time slots and then our team worked 7 in each of those time slots with students who we contacted, 8 so in other words, I would have a list of students who 9 were in the pool, then I would solicit a set of research 10 assistants to call and schedule people, so that was the 11 process. 12 Does that answer your question? 13 Q I think so. 14 A Okay. 15 Q And did you work at all at the actual focus groups 16 where any of the lawyers for the Intervenors were present? 17 A Oh, absolutely not. 18 Q Ms. Massie wasn't present for any? 19 A No, not for the focus groups. 20 Q I'm sorry, for the actual getting people in the 21 rooms together and so forth. 22 A No, that was -- no, no, no. That's -- 23 Q That would have been -- 24 A Not acceptable. 25 Q That would not have been acceptable? 48 1 A Absolutely not. 2 Q You didn't, in selecting these students for these 3 focus groups, you didn't make any effort to ascertain who 4 was actually interested in applying to law school, did you? 5 A No, but in the course of our discussions and in the 6 data that came forward from the focus group interviews, 7 it turned out that there was a sizable representation of 8 students who were either interested in the law or interested 9 in going to law school. 10 Q That wasn't the qualification, one of the 11 qualifications? 12 A No, no, it wouldn't be, because that would defeat the 13 purpose. 14 Q Now, I just want to talk about some of the things that 15 you did. Again, I'll move on eventually here from these 16 focus groups and the methodology, but in the things that 17 you studied with respect to these focus groups, one of the 18 things you were looking at, I think your report uses the 19 term, to illustrate and elucidate some of the issues with 20 respect to academic performance and discrimination and so 21 forth; correct? 22 A Possibly. Are you quoting from the report? 23 Q Well, the words, illustrate and elucidate are there, 24 but it's not important if they are not, would you agree 25 that that's -- 49 1 A That would be a purpose. 2 Q In trying to look at some issues with respect to 3 correlation between academic performance and racial climate, 4 discrimination, things like that? 5 A So if we're talking -- if we're talking about 6 correlations, then you're referring to the survey portion 7 of the report. 8 Q Well, I shouldn't use the word, correlations. You're 9 looking to sort of eliminate in these focus groups those 10 connections; right? 11 A We were trying to understand them, yes. 12 Q Not to draw mathematical conclusions? 13 A Okay, correct. 14 Q And you did not, as part of that process, actually 15 ask students to get transcripts for you; correct? 16 A No. And I didn't for a specific reason, if you would 17 like for me to elaborate. 18 Q My understanding is that you believe that self-reports 19 of grades are accurate? 20 A I would be a bit stronger. It's not my belief, the 21 literature has demonstrated conclusively that students are 22 pretty accurate in reporting their grades and this has been 23 demonstrated with scientific research of the probabilistic 24 sort for students who were asked to report grades and then 25 those grades were compared to transcripts. 50 1 Q But in any event, you didn't get those? 2 A No, I did not. 3 Q Either as part of the survey or as a part of the focus 4 group work? 5 A The actual transcripts? 6 Q Right. 7 A No. 8 Q You don't have any information on how many of these 9 students at focus groups or in the surveys, how many of them 10 that might have taken the LSAT test, you didn't have any 11 testing data on that, did you? 12 A No, I didn't ask any questions about the LSAT test 13 scores for those students. 14 Q Am I correct that between your focus group analysis 15 and your survey work, you concluded that all the students 16 were doing well academically across all racial lines? 17 A I concluded that the students were making reasonable 18 progress and doing well enough to graduate, yes. 19 Q And basically -- 20 A But you know, actually, there were variation in their 21 levels of performance. Excuse me for interrupting. 22 Q But am I correct that your conclusion was that the 23 participants academically were basically the same across 24 racial lines and that the results, these were generally high 25 performing students, fair enough? 51 1 A The second part I agree with, but not the first part, 2 no. The students were not performing the same across racial 3 groups, but the students were high performing students, 4 for example, in terms of the -- in the cases of the law 5 students, in terms of the profiles that they had as 6 undergraduates, and in terms of the undergraduate students 7 in terms of their profiles as high schoolers, and 8 ultimately, as I have said a moment ago, the point was 9 that the students were performing at an acceptable and 10 reasonable level across the board. 11 Q Could you go to page 34 of your deposition? Do you 12 have it there? 13 A Yes, sir, I do. 14 Q Actually, it starts on page 33. This is a question: 15 "And my question is, and I'm sure 16 I have looked at it, it must be here 17 somewhere, but I'm trying to get a 18 general sense of your understanding 19 as to whether there were significant 20 differences between grade point 21 averages among the racial and gender 22 lines among these students at these 23 feeder institutions." 24 Answer: "What was striking as a 25 whole, the students that we interviewed 52 1 were high performing students academically." 2 Question: "Along all racial lines?" 3 Answer: "Along all racial lines, 4 but there was some difference in terms 5 of their reported experiences in classes 6 and in terms of their experiences -- 7 in terms of their reported experiences 8 with respect to how they were perceived 9 and treated." 10 Did I read that accurately? 11 A You did. 12 Q Is that a true statement? 13 A It is, but once more, it has to be in that larger 14 context, because if you remember the questioning and answers 15 that continued over to page 35, for example, line seven, 16 where I talked about grades being negatively affected by 17 discrimination, and so in the context of what is a very 18 complex situation, that's a correct assessment. 19 Q You didn't actually, as part of your work, you didn't 20 measure the extent to which there were differences in 21 grades, academic performance, among these students in 22 these focus groups or surveys; correct? 23 A I had done that work previously at the University of 24 Michigan and in a couple of instances actually making such 25 measures, measurements for the entire population of all 53 1 students who were enrolled at the University. I had used 2 the University's retention data set and done exactly those 3 correlations of race with the grade point average, so in 4 the focus groups, you know, we didn't do that, because for 5 one thing, as we have discussed, it would not have been 6 representative of the entire community, but more 7 importantly, I had that information from previous research 8 that used the entire collected data on all students who had 9 entered the University and been there for five years, as 10 well as data from probability-based surveys. 11 Q Okay. Let me ask you about some of the survey work. 12 Surveys are the written materials, right, as opposed to the 13 focus groups, written survey questions? 14 A Yes, self-completed questionnaires, yes. 15 Q And 200 out of all these, among these schools, among 16 these four schools? 17 A For this particular study, yes. 18 Q And just to clarify myself on this, is that exclusive 19 of the law school, the 200 or so surveys? 20 A I would have to look at the numbers again, but the law 21 school -- yes, it is, it's exclusive of the law school. 22 Q And how many -- 23 A We had about 40 surveys at the law school. 24 Q Okay. So let me ask you about the -- first of all, 25 the 200 or so undergraduate surveys, am I correct that you 54 1 found -- well, first of all, this was predominantly, among 2 the surveys, like the focus groups, this is predominantly 3 minority students; correct? 4 A Yes. 5 Q I think I read somewhere that you have about 6 17 percent whites in the survey response? 7 A Right. And for reasons that are -- became very clear, 8 and became very clear in, for example, the responses of 9 the white students, the white students said they had not 10 experienced racial harassment or racial discrimination 11 and this focus group study was a focused study of 12 experiences with race discrimination. 13 Q Most of the students were A or B students, correct, 14 about 90 percent of them? 15 A I would have to look at the percentages. Are you 16 referring to the survey? 17 Q I think this is around -- well, it may be in several 18 places. I took my notes here and I am looking at page 49, 19 I think, of your report, where you have it in narrative 20 fashion. 21 A Page 49, you say? 22 Q I can't guarantee that's where it is, but -- 23 A I have tables under tab two which would include a 24 specific grade breakdown. 25 Q Actually, page -- 55 1 A Item five. 2 Q And then page 50, actually, goes into this, as well. 3 A Okay, page 50. 4 Q And 47 percent of the respondents reported A averages, 5 46 percent B averages? 6 A I'm sorry, sir, on page 50? 7 Q Page 50, the second full paragraph. 8 A Yes. 9 Q So that's confirms that these were pretty high 10 scoring, pretty well performing students by and large 11 in these focus groups; correct? 12 A This is true. 13 Q Doing well. 14 Most of them also indicated that they were well 15 prepared, or prepared at least, to enter college? 16 A That's correct. 17 Q And I think the number I counted was about 82 percent 18 answered very -- answered well prepared or prepared, that's 19 on page 50 and 51? 20 A 60 percent answering well prepared and 22 percent 21 prepared, somewhat prepared, yes. 22 Q A third of the parents of these students had a 23 father with a graduate or professional degree; correct? 24 A Right, but -- yes, this is true, but as you know, 25 this is the group as a whole, including the white students. 56 1 Q Most of the group is minority; true? 2 A Yes, that's true. 3 Q And 25 percent of the mothers of these students had 4 graduate or professional degrees? 5 A And as you pointed out, 17 percent of the sample is 6 white, so that's why I made the point. So we're talking 7 about an additional eight percent, if indeed it turns out 8 the case that the white students were the ones who were 9 the 17 percent who -- the 17 percent of white students had 10 mothers with graduate degrees. 11 Q Well, do you report that data broken down by race 12 at all? 13 A No, not here I don't. 14 Q How about, did you find out -- we're talking about 15 graduate professional degree, correct, that's beyond four 16 years of college? 17 A It's a college graduate, yes, with an advanced degree. 18 Q Well, I think of a graduate degree, is that -- do you 19 mean by that a four-year college or is that something past? 20 A It's past. It's past the BA and then, as you said, a 21 Masters degree, professional degree, a Doctorate. 22 Q Did you ascertain how many of these students had 23 parents, one or more parents, that had a four-year degree? 24 A I think we do have that here. 25 Q I guess I didn't see it, so. 57 1 A Let me look. 2 Q Well, if it's here, it's here, right? 3 A It would be in the tables for sure. I'm pretty sure I 4 have it. 5 Q Well, if you could find it quickly, I just -- 6 A Parent education. If you'll give me a moment, I'll 7 dig it out. 8 Q Sure. 9 A You know, actually, I correct myself. I'm looking at 10 the questionnaire, and what we asked the students about was 11 their own -- no, we do have it, just a second. 12 Question six in the questionnaire, in the survey, 13 asks about parents' education, so I will have to find the 14 equivalent table. 15 Table 15 under Tab 2 is father's education and 16 Table 16 is mother's education. 17 Q Yes, I see that. 18 A And so I can answer that question separately for 19 mothers and fathers in terms of graduate professional 20 degrees. For fathers we're talking about a third of 21 the sample and for mothers we're talking about a quarter 22 of the sample, so 33 percent and 25 percent. 23 Q That's for graduate or professional degree; correct? 24 A Yes, that's what you were asking me, is that correct? 25 Q Right. And then there are -- we have already gone 58 1 over that data. 2 And having a BA or a BS? 3 A Yes, in terms of a BA, solely a BA, 14.5 percent 4 of fathers and only a BA, 21 percent of mothers. 5 Q All right. And then there are additional numbers who 6 have some college; correct? 7 A Correct. 8 Q Okay. And again, you just -- that's not broken down 9 by race, we just don't have that? 10 A No, not here. Except, once more, that's research -- 11 those kinds of comparisons by race of parents' education, 12 I have done extensively in the 80, 85 or so papers that I 13 have published and so those were questions that have been 14 answered and they have been answered generally, that is, 15 on a national level, and then answered previously for the 16 University of Michigan from the other analysis I have done. 17 I mean, the bottom line is that you see these 18 dramatic differences by race in terms of parents' education 19 with black and students of color being disadvantaged. 20 Q Just not shown here for these focus groups or surveys? 21 A I didn't do that analysis for the focus groups for the 22 simple fact that, as I said, it's a point I demonstrated 23 with earlier research. 24 Q And I hesitate to mention it, because I didn't write 25 down the page number, but am I correct that you found that 59 1 two-thirds of the students in these 200 member focus -- 2 200 member surveys, two-thirds of them reported that they 3 had A averages in high school, probably around -- 4 A You found that where? Where was it? I'm sorry. 5 Q Well, I'm not sure. I think it's page 51 or 2. 6 A Okay, 51 or 52. 7 Q A substantial number of them reported high performance 8 in high school, is that your recollection, at least, or do 9 you want to look? 10 A It is my recollection. Just if you needed me to 11 attest to the percentage, I needed to look it up. 12 Q Okay. So you're satisfied that that's -- let's 13 just -- 14 A Generally it's true, yes, but if you want me to 15 look up the percentage, the exact percentage, I can do so. 16 Q We will just -- if it's there, it's there. If it's 17 not, it's not. We will leave it there. 18 Let me ask you about some of the law school survey 19 work that was done. Am I correct that you found the 20 prospective -- there's only 31 of these respondents, 21 correct, first of all? 22 A Yes, that's correct. 23 Q You found that grades were comparable across races and 24 that they were acceptable levels, with only three reporting 25 something less than a B average? 60 1 A Yes, sir, that's correct. 2 Q And most of the students felt extremely well prepared 3 for law school, about two-thirds of them? 4 A Correct again, yes. 5 Q By and large, these students in the -- among the 6 31 students at the law school reported that their college 7 grades had been high; true? 8 A Yes, sir. 9 Q And can you remind me, what was -- the 31 law schools 10 respondents, were they predominantly minority students? 11 A Once again, we had one focus group that was white 12 students, so they were predominantly students of color and 13 predominantly female, actually, because those were the two 14 categories of focus in terms of questions about racial 15 climate and gender climate. 16 Q Let me ask you, I'm going to change subject now a 17 little bit her. 18 Do I fairly understand that your opinion is that 19 racism, race discrimination, is something that is pervasive 20 in this country? 21 A Oh, absolutely, yes. 22 Q And you have focused on these feeder group 23 institutions and the law school itself and you have found 24 persistent patterns of racial hostility, racially hostile 25 climate; correct? 61 1 A That's correct. 2 Q You have found evidence from these studies, from these 3 survey respondents, of patterns of discrimination and racism 4 on these campuses, that's your finding? 5 A That's my finding and it matches up with the research 6 that others have done, as well as my previous research. 7 Q And is it fair to understand your opinion to be 8 that these feeder institutions and the law school are not 9 atypical for primarily white college universities and law 10 schools around the country? 11 A That's a safe assumption, yes, sir. 12 Q Okay. So this is a problem that's pervasive 13 around the country, other colleges and universities? 14 A It's a problem that's pervasive, but it is a problem 15 that varies in its intensity, depending on characteristics 16 and traits of a campus; for example, the history of a 17 campus, history of race relations on the campus, the sorts 18 of policy issues or debates that are under way on a campus, 19 for instance, on a campus where affirmative action is being 20 hotly debated, then often those kinds of patterns will be 21 exacerbated. 22 Q Okay. And patterns of discrimination, racism, are not 23 limited to colleges or universities, either, correct, in 24 your opinion? 25 A Well, no, unfortunately, they are part of our society 62 1 as a whole and as such you see those problems from the 2 larger society being reflected on the campuses. 3 Q I mean, it's fair to say to understand your opinion 4 to be that we have an existing climate in this country of 5 societal discrimination against minority students, fair 6 enough? 7 A A climate that -- I have trouble answering that 8 question yes or no, and if you'll allow me. I mean, we 9 do have discrimination in the country. It varies in terms 10 of its force and shape and the targets depending on the 11 particular regions, and it also varied over time. 12 So if you talk about California and discrimination 13 right around Prop 209, then you have a different kind of 14 picture than, say, California and whichever group you're 15 focusing on pre209. 16 Q And I understand there may be variations and you 17 may -- 18 A Yes. 19 Q -- believe there are variations, but you believe it's 20 a national phenomenon, correct, in society? 21 A Okay. I believe, and those beliefs are validated by 22 empirical research -- 23 Q Okay. 24 A -- of an extensive body, that yes, the country 25 continues to engage in racial discrimination, that 63 1 continues to be a problem for us, and again in terms of 2 gender discrimination, as well. 3 Q Our country has a history of societal discrimination 4 against minorities? 5 A Absolutely. 6 Q And there are continuing effects of that societal 7 discrimination? 8 A Correct. 9 Q And some of the continuing effects of that 10 discrimination relate to the academic performance of 11 minorities like African Americans, Hispanics, Native 12 Americans at America's colleges and universities; true? 13 A This is very true and it's based on just a cumulative 14 disadvantage that I have documented from K through twelve 15 education that then translate into different levels, 16 for example, of educational preparation, educational 17 opportunity, and then translating into differences in 18 terms of representation for the different ethnic groups 19 in higher education. 20 Q And is it fair to understand you believe that race 21 ought to be considered in the admissions process at 22 colleges and universities in order to help respond to 23 these continuing ongoing events of societal national 24 discrimination against minorities, true enough? 25 A I think as an educator you cannot make decisions 64 1 about students and educating and admitting students into an 2 institution of higher learning without looking at the whole 3 person, and race is a sizable and in many instances just 4 definitive component of a person's experiences and 5 opportunities. 6 Q And one of the reasons we should do that, as I 7 understand your opinion, is that we must respond to these 8 ongoing effects of societal national discrimination against 9 minorities; fair? 10 A One of the reasons is that we do need to respond to 11 and make and take account of systematic patterns of racial 12 discrimination. Further, I think we have to prepare 13 ourselves, our students, our work force, for a reality 14 of a racially and culturally diverse world and society. 15 Q And those are reasons that, in your opinion -- and 16 you're an educator, right? 17 A Yes, I am. 18 Q Those are reasons that, in your opinion, we all 19 have to be able to use race as a factor in admissions 20 decision making at colleges, universities and law schools; 21 true? 22 A I think that when we are making decisions about 23 admitting students, we have to look at the whole student 24 and a student's racial identity is part of that whole. 25 So absolutely, yes, it's -- and I would just say, as an 65 1 educator and researcher, it's just about impossible to 2 look at a student apart from their racial experiences, their 3 race, because race structuralizes in this society in very 4 definitive and very clear ways. 5 You look at a city like Detroit, you see that the 6 city is residentially segregated. You look at one of those 7 pockets, you see it systematically continues in terms of 8 educational opportunity, and so all of that ties together, 9 so it's not merely skin color, per se, but it's what skin 10 color determines about life experiences and opportunities in 11 our society. 12 Q Okay. And so housing segregation, for example, in 13 Detroit, is a reason that ought to be considered as a 14 justification for considering race in the admissions 15 process at a law school or undergraduate school, true? 16 A Housing discrimination in Detroit, in Minneapolis, 17 first of all, sets the catchment area for the schools that 18 you attend. It also determines the resources that are 19 available in the schools that you attend. So it sets you 20 on a trajectory either to higher educational accomplishment 21 and achievement or to lower educational accomplishment and 22 achievement, and unfortunately, those kinds of forces are 23 bigger than individuals, and so the most motivated, the most 24 innately talented young kid cannot learn algebra if algebra 25 class is not available in her school, and unfortunately, 66 1 what we see is that algebra and other subject areas are 2 differently available in schools coded by race; that is, 3 the schools that are coded by race tend to be poor and they 4 tend to have fewer offerings, and so, thus the point I'm 5 trying to make. 6 Q And just so I understand, your opinion is that those 7 kind of social demographic factors are the kinds of reasons 8 we have to -- that we should use to justify using race as 9 one factor in the admissions process at colleges and 10 universities, law schools, true? 11 A Yes, and the sociodemographic factors as related 12 to the educational institutions and the educational 13 opportunity structure that they shape. 14 So it's more about educational opportunity, but it's 15 educational opportunity that is differentially experienced 16 and available based on race and based on racial segregation 17 in this society and systematic deprivation by race. 18 Q I want to talk about the phenomenon of poor 19 performance, poor academics, poor grades in the college 20 or law school. 21 You're an educator. You have been an educator for 22 how long? 23 A I have been an educator for 26, 27 years. 24 Q Would you agree with me that there are a lot of 25 reasons why students, any particular student or any group of 67 1 students, might be suffering from poor academic performance, 2 a lot of reasons out there for that? 3 A I would accept that general principle, yes. 4 Q There are a lot of reasons that would explain why a 5 white student might have poor grades; correct? 6 A There are reasons that would explain why a white 7 student might have poor grades, but one of those reasons 8 would not be racial discrimination. 9 Q But there is a lot of -- 10 A Because this society is a society that has been 11 dominated by whites and has been structured in ways that 12 privileges whites and so racial discrimination against 13 whites in this society, I have trouble buying. 14 Q But there is a lot of reasons that have nothing to do 15 with race that can cause a person to perform poorly on their 16 grades and test scores; true? 17 A See, that's the interesting thing about how race 18 affects educational performance in this society, because in 19 fact, as I tried to point out, educational performance at 20 the college level, let's say, is a function of cumulative 21 either educational advantages or disadvantages, and so if 22 the original situation was created by racial segregation, 23 then by the time you get, say, to an SAT test, you could 24 in theory say that, well, this student's performance, low 25 performance on, say, the mathematical part of the SAT, is 68 1 because he doesn't know math, but that rips the person from 2 his experience and rips the person from an experience that 3 was dictated, structured, required by racial identity and 4 that put him in schools that set him on an educational track 5 that insured that he wouldn't know algebra, because it would 6 not be available to him. 7 And so that's why I'm hesitant to accept an 8 assertion that they are just random causes, because in fact, 9 the causes of low educational performance of Chicano-Latino 10 students are not at all random. They are very systematic. 11 There is very systematic deprivation in terms of 12 preschool educational-related experiences, systematic 13 deprivation in terms of the elementary years and 14 opportunities to learn, and systematic deprivation in 15 terms of high school, so at the end of the process, the 16 predictable has happened, that kid is not as well prepared, 17 is not as able to compete with his white peers who were set 18 on a course where those resources were available and where 19 the opportunities were there and present in their schools. 20 THE COURT: Define systematic for me. 21 THE WITNESS: Systematic is just a kind of patterned 22 effect, if you will, so just following a young person 23 through school. A poor youngster and many youngsters of 24 color who are disproportionately poor, who does not have the 25 advantage of educated parents to prepare him or her in those 69 1 earliest years just for readiness to learn, if you will, 2 so in those early years, in the preschool years, whether the 3 parents could afford to put that kid in a quality preschool, 4 then in terms of the K through twelve years, the quality of 5 schools that those youngsters have available to them. 6 And we educated parents and the parents who are of 7 middle class work very hard to get their kids into certain 8 schools, and that's because we understand that high quality 9 schools will produce kids who are better educated and who 10 are better equipped to compete, and once you get into the 11 high school years, those differences become even more 12 pronounced. 13 The research I have been doing in California shows 14 that the availability of advanced placement classes -- 15 THE COURT: I understand. So if you don't start at 16 the bottom, you can't -- 17 THE WITNESS: Exactly. 18 THE COURT: You used the word, systematic, so that's 19 what you mean by systematic? 20 THE WITNESS: Yes, sir. Sort of a pattern, 21 repeating structure -- 22 THE COURT: I see. 23 THE WITNESS: -- of just deprivation, deprivation 24 in the earliest years, all the way through to deprived or 25 blocked opportunity into high school and college. 70 1 BY MR. KOLBO: 2 Q Let's just accept, at least for point of argument, 3 that race is a factor that can explain academic performance 4 in some cases. Let's just put that aside for a minute, for 5 the moment, but my question actually was, isn't it true, 6 Dr. Allen, as an educator, you know that there are a lot of 7 reasons that can explain poor academic performance that have 8 nothing to do with race? 9 A There are some reasons that have nothing to do with 10 race. 11 Q And there are a lot of reasons why a white student or 12 an Asian American student might do poorly in school that 13 have nothing to do with his or her race; true? 14 A That's hypothetically true, yes. 15 Q Well, you accept that, don't you? I mean, you accept 16 that proposition? 17 A Well, no, actually, I don't, and that's why we went 18 to the next stage of the research. That's exactly the 19 quandary that we had, to tell you the truth. We had these 20 correlations, but we didn't have a clarity of what was going 21 on in terms of the underlying dynamic, and so when you moved 22 to the next level and began to talk to students in the 23 different categories, talk to Asian American students, 24 talk to black students, talk to white students about their 25 specific educational experiences and with force of the 71 1 educational outcomes that you observe, then clarity emerges, 2 because the students have started talking about differences 3 in terms of their opportunities to learn in the early years, 4 for example, or differences in terms of how their teachers 5 respond to them, stereotype them, and are prepared to either 6 foster or block their education. 7 Q A white student might do poorly in school in part 8 because of a disadvantaged upbringing, true? 9 A This is probably true, yes. 10 Q Because he comes from a poor family, true? 11 A A white student who, for example, comes through an 12 urban inner city school system, yes, would be deprived 13 systematically in the same ways that his black classmates 14 are deprived, but when we look at the distribution of 15 residence and schooling we find that the composition 16 overwhelmingly of those inner city schools tends to be 17 students of color. 18 Q And a white student might do poorly for simply not 19 applying himself or herself well? 20 A That's possible. 21 Q And that could be a reason that might explain why a 22 black student or a Hispanic student does poorly in school, 23 as well? 24 A I think I accept those hypotheticals for individuals, 25 but the lesson that we have learned as sociologists is that 72 1 when you begin to see group processes and group patterns, 2 then it's no longer sort of random individual explanations, 3 and in fact, that again takes us back to systematic pattern. 4 You see patterns for groups that are different and 5 so needless to say statistically you will see individual 6 variation, will see some individuals within a population who 7 are less motivated than others, you'll see some that work 8 harder, you'll see some who are better prepared, but when 9 you start seeing a group pattern where, for example, black 10 students consistently do more poorly than white students, 11 then you're actually left with fairly simple conclusions. 12 You can either conclude that that entire group of 13 people is somehow deficit, and for obvious reasons I'm not 14 accepting, for obvious or not so obvious reasons, I'm not 15 accepting of such an assertion, or you can look for some 16 larger patterns, some larger forces and some larger 17 relationships that are producing those group differences. 18 Q There are certainly many African American and Hispanic 19 students who do very well academically; true? 20 A Some of the students we talked with do well 21 academically. 22 Q Into high school? 23 A And they do so at great cost, yes, they do well. 24 Q They do well in high school, they do well in college? 25 A Yes, some of those students do, yes. 73 1 Q Some of them do well in law school? 2 A Absolutely. And I'm engaged in a study that exactly 3 shows that kind of successful student, and when you look at 4 these successful students, you find that the explanations 5 are quite clear. There are students who had opportunities 6 to learn, these are students who had parents who were of 7 high status. These are students who found educational 8 environments that were supportive and that did not 9 stereotype them and then behave based on that negative 10 stereotype to produce the self-fulfilling prophesies that 11 they were not good students. 12 Q You've suggested many times that minority students 13 have certain stresses that white students don't have due 14 to racism and discrimination; true? 15 A Yes, and they share some stresses, as well. 16 Q Am I correct, in your report you suggest that the 17 greatest stresses for white students are personal such as 18 the difficulty in getting a date. Do you really believe 19 that or is that sort of, I mean, is that sort of tongue in 20 cheek? 21 A Do I believe that a social life is a stress -- 22 Q One of the -- 23 A -- for college students, yes, I do. 24 Q Do you believe that the greatest stresses that white 25 students face in general, that the greatest stresses that 74 1 white students face academically are personal, and an 2 example is like getting a date? I mean, isn't that a 3 little -- 4 A For some students that could be quite a challenge. 5 Q I can testify to that, but is it fair to generalize, 6 is it fair to generalize and suggest that that sort of 7 exemplifies the greatest problems that white students have? 8 A I think you're probably -- 9 Q That's not fair, is it? 10 A -- referring to a series of things. It's fair to a 11 particular individual who does have those kind of problems. 12 It was more the larger point, and there we used a couple of 13 examples, didn't we? Are there other examples there besides 14 the date? 15 Q That's the only one I see there. 16 A Well, normally in my work you'll find several 17 examples, but the larger point is that the kinds of problems 18 that confront, say, Chicano-Latino students and white 19 students at Michigan are fundamentally different. 20 I mean, they will share the general problems that 21 students face, I mean, learning how to organize your time, 22 having to work, having to take care of school work, having 23 to find yourself a date, all of that is a general part of 24 college life, but the overlayer, the extra special burden 25 that the Chicano-Latino student faces comes in the form 75 1 of -- in the form of, as I talked about, harassment by 2 police; that is, police officers who literally will pull 3 them over and treat them as if they don't belong on the 4 campus or stereotypic assumptions about them before a 5 teacher knows anything about their background, just 6 presuming that they are not academically qualified, or 7 spurious slurs by some of their classmates. 8 I mean, many of those racial slurs that those 9 students report are not slurs that the white students 10 reported, and indeed, we asked a specific question of 11 all students, and white students said, no, they had not 12 experienced racial discrimination. 13 Q But it's not, you would agree with me, it's not fair 14 to generalize and suggest that for most whites and/or all 15 whites the only real problems that they face in academic 16 performance are sort of trivial personal reasons like 17 getting a date, that's just not a fair statement, is it? 18 A I think the statement was intended more to say that 19 there are levels of intensity of the problems that are faced 20 by students and so the generalization that you're pointing 21 to is, I think, a common challenge to students, but beyond 22 that students of color have these additional burdens that 23 come solely as a result of racial hostility in the climate 24 where they are trying to complete their education, just like 25 the white students are trying to complete their educations. 76 1 Q Isn't it fair to say that one of the problems in this 2 country with respect to race and other issues, as well, is 3 that there is a problem that people tend to generalize too 4 much and try to project a characteristic or a situation with 5 respect to -- onto a particular race or gender or group? 6 A I think the problem about tending to generalize is 7 understating. The problem is about, for instance, using 8 racist stereotyping, for example, or misogynistic 9 stereotyping of females, and then people using their 10 power to act out those, to act on those stereotypes. 11 So beginning with a negative perception or 12 stereotype of a group, and then using one's power and 13 privileged status to strike out at, to undercut, to 14 negatively influence and affect the outcomes and experiences 15 of those people, so for me it's larger than generalizing, 16 because quite frankly, as humans, we always use categories. 17 That's the only way we can deal with this world. 18 It's very complicated, it's very complex, so we use 19 categories, but it becomes problematic when we attach those 20 negative designations to an entire people, for example, 21 or to an entire gender, so it's not that you know the 22 difference between men and women, if you don't know the 23 difference between men and women by the time you get to 24 college it's a problem, so that kind of generalization is 25 part and parcel of just human development and of being an 77 1 educated person, but I'm just simply saying that what 2 becomes problematic is negative stereotyping by race or 3 negative stereotyping by ethnic group. 4 Q Well, negative stereotyping by race isn't bad just 5 because it's negative, it's bad because it's wrong, right, 6 it's inaccurate? 7 A It's bad because of all of those things and it's bad 8 further because of the fact that in too many instances 9 the individuals with the power will take those negative 10 stereotypes and penalize and not give the groups stereotyped 11 an opportunity or a chance and penalize them for the mere 12 fact of their physical appearance. 13 Q It's a negative stereotype to think that most African 14 Americans are underachievers academically, true, that's a 15 negative stereotype? 16 A It's a negative racial stereotype to make that 17 assumption, yes. 18 Q And it's a false stereotype, true? 19 A It depends on the measures of achievement that you 20 use, needless to say. If you use, say, standardized tests, 21 then there is a documented difference in terms of levels of 22 performance by race, but it would become a problematic 23 stereotyping if you assumed that all black students would 24 underperform on the SAT, and it becomes problematic if you 25 don't move to that next level of analysis which allows you 78 1 to understand some of the factors I have been talking about 2 that predict those differences in test score performance, 3 because it's all predicated upon differences in educational 4 opportunity and preparation because of racial 5 discrimination. 6 Q Isn't one of the reasons to have, as I understand it, 7 a racially diverse campus, is to sort of -- is to put an 8 end to inaccurate racial stereotypes that white students 9 might hold about black students? 10 A I think that's been one, one rationale offered. Given 11 that we're a democracy and we define ourselves the way we 12 do as a society, for me an even more compelling rationale is 13 that rationale for equal opportunity. 14 Q It's just wrong to make general conclusions about a 15 whole group of people in terms of what their characteristics 16 are or experiences. I mean, that's just -- one shouldn't do 17 that, that's a negative or at least that's an inaccurate 18 stereotype and that's one of the reasons that it's been 19 offered in support of racially diverse campuses; true? 20 A I'm not one who sort of has written a lot about a 21 rationale for racially diverse campuses, so I'll have to 22 accept your premise. 23 Q It's not fair, is it, Dr. Allen, for someone to 24 conclude that all white students are privileged, that's 25 not a fair stereotype, is it? 79 1 A It's fair to talk about, and it's actually prudent and 2 reasonable to talk about group differences, because we keep 3 moving back and forth between individuals and groups, and 4 when I started talking about those systematic patterns, 5 that's about group privileges, it's not about individuals, 6 per se, but it's about the groups and their relative 7 positions. 8 And in society, decidedly, there is no question 9 that whites are privileged relative to nonwhites and that 10 privilege plays out in all aspects of life and all the 11 arenas of life. If you look at any arena of this society 12 and look at what matters in terms of occupation, in terms of 13 housing, in terms of health, in terms of education, you see 14 systematic patterns of white advantage and systematic 15 patterns of disadvantage for people of color. 16 And so it becomes a little bit confusing to try and 17 selectively talk about individuals when in fact these group 18 patterns are quite clear and quite distinctive and tell us 19 how this society has functioned historically and how it 20 functions today. 21 Q You would agree with me that not all white students 22 are privileged? 23 A Of course not all white students are privileged. 24 Q And some black students are more privileged than other 25 white students? 80 1 A And we have to talk about all the bases of privilege, 2 but depending on how you define privilege, that may be a 3 correct assertion. 4 Q You talked in your testimony yesterday about a Chicano 5 student whose B plus may not be the same as a white male's 6 because of the hardships that Chicano might have to overcome 7 because of his race; right? 8 A Correct. 9 Q Okay. Isn't it true that the B plus of a white 10 student who has got some demonstrated hardship, came from 11 a poor background, might represent more hard work and effort 12 than the B plus of a more privileged black or Hispanic 13 student, can that happen? 14 A If I read what the students are telling me in those 15 transcripts, in those surveys, that's not going to happen. 16 Q Never? 17 A Because in fact, what the students will -- well, I 18 would never say never -- oops, I just did -- but I tend not 19 to say never, because we're talking about general patterns, 20 but I'm simply saying that we can return to your comment 21 about probabilistic studies and probability. 22 When we're doing these types of assessments it's 23 best to think in terms of the general tendencies and the 24 more likely occurrences, so the more likely outcome is that 25 what you just described would not happen for reasons of 81 1 the educational experiences that these students describe. 2 These students describe a situation that doesn't 3 make allowances for them or privilege them, but in fact, 4 penalizes them. And so their B plus, absent that kind of 5 discrimination, would have been a much higher grade, you 6 can presume. 7 Q Are you familiar with the argument that one cannot 8 stop using race as a factor in admissions and substitute 9 instead socioeconomic status because there are just too many 10 poor, poor white students in this country because they 11 outnumber, absolutely, the numbers of minority students, 12 and there's just too many of them, and if one substituted 13 socioeconomics for race you simply wouldn't have enough 14 black students at colleges and law schools, are you familiar 15 with that theory? 16 A We're wrestling with issues of race and socioeconomic 17 status as potential bases for selection in California and 18 finding that, trying to go to a system of socioeconomic 19 based selection, if you will, just does not capture the 20 incredible disadvantage, the just deep damage of racial 21 discrimination on people of color, because it's a 22 multiplicative effect, if you will. It's not only that 23 Chicanos and blacks are disproportionately poor, it's 24 also that the poor are not -- they are racially 25 discriminated against in this society, they have blocked 82 1 opportunities. 2 If you look at the educational opportunities of 3 middle class black kids, you find that they don't begin to 4 compare with the educational opportunities of poor whites, 5 comparing the high schools in terms of course offerings and 6 curriculum, in terms of degrees of the teaching faculty, in 7 terms of the quality of life at the surrounding areas. So 8 the point is that race is a powerful presence that doesn't 9 ignore or eliminate class, but in fact, complicates it and 10 complicates it exponentially. 11 Q But am I correct that one of the reasons why 12 socioeconomic advantages has been rejected, maybe not 13 the only one, but one of the reasons it's been rejected by 14 educators as a substitute for race is that there are just 15 too many poor white students and you would end up with not 16 enough Chicano students at colleges and black students at 17 colleges? 18 A No. What I was trying to respond to you and say, it's 19 problematic because it does not capture the power of race to 20 shape educational opportunities in this society and to 21 change the educational opportunities, even well-to-do 22 blacks. 23 Q You didn't read Dr. Gary Orfield's testimony in 24 this case? 25 A No, I did not. 83 1 Q About that problem I just mentioned? 2 A No, I did not. 3 Q So you don't agree with it? 4 A I don't agree with what I didn't read? 5 Q We have been talking -- I'll represent that, if I 6 recall correctly, that Dr. Orfield has suggested that 7 socioeconomic advantage will not work as a substitute for 8 race in admissions because, again, of the demographics, 9 there are more white students. I take it you disagree with 10 that, that's not a reason that that -- that's not the reason 11 that one should reject that alternative to race as a factor 12 in admissions? 13 A I would have to read Gary's argument. I'm sure he 14 developed it more fully, and then I could tell you whether 15 I agree with it. 16 Q You have testified that you gave an example of, I 17 think, an example of how discrimination affects minority 18 students, of a student or two who walked into a classroom 19 and the teacher basically, I think you said, palmed them 20 off or ignored them or something like that? 21 A I have several examples where students would come 22 into a room before the students -- before the teacher knew 23 anything about the student, the student would be told that 24 black students don't do very well in this class, and by the 25 way, that's from my survey data at the national level. 84 1 In terms of the data from the Michigan study, 2 we have several examples of students trying to -- black 3 students, Chicano-Latino students trying to approach faculty 4 members, white faculty members with questions, and not 5 receiving the same response that their white classmates 6 received; that is, not being attended to, being, and I quote 7 from a student, being given get-out-of-my-face answers, and 8 this is from the student transcripts. 9 Q You would agree that white students sometimes have 10 trouble dealing with faculty, that happens? 11 A Interestingly enough, when you look at the survey 12 data, they don't report as many problems as students of 13 color. So I imagine, you know, some students, some white 14 students report problems, but they report such problems 15 usually at -- well, black students are three times more 16 likely to have had those kinds of problems, Chicano-Latinos 17 are three times more likely to have had those kinds of 18 problems with their predominantly white faculty. 19 Q You have reported unfair grading as being a phenomenon 20 that you think minor students feel? 21 A That's what the students report, yes, sir. 22 Q You are certainly -- would you generally agree that 23 white students sometimes feel they have been unfairly graded 24 by their professors? 25 A Again, that's why we have to move beyond a simple 85 1 individual assessment, so yeah, you could look at it and 2 look around and find individuals who felt that they were 3 unfairly graded, but when you look at a pattern of 4 responses, and this is why large-scale research is 5 persuasive, when you look at those larger surveys, you 6 find that white students are not as likely to report unfair 7 feelings that they were graded unfairly. They are not as 8 likely to report that they feel like their faculty has 9 trouble relating to them or interacting with them. They are 10 not as likely to report that they feel that their faculty 11 are hostile toward them. 12 Q I want to ask you some questions, then, about your 13 testimony with respect to the University of Michigan 14 specifically, both Michigan undergraduate school and the 15 law school. Am I correct in understanding that you have 16 formed a conclusion, the opinion, that the University of 17 Michigan campus at Ann Arbor is a racially hostile campus? 18 A I have formed the opinion that the students experience 19 racial hostility and experience -- that students of color 20 experience the campus as racially hostile, yes, sir. 21 Q And you feel the same way about the law school at 22 Michigan? 23 A In terms of? 24 Q It's a racially hostile campus? 25 A The students report that they have experienced that 86 1 law school as racially hostile and females report that they 2 have experienced it as being hostile to them as women. 3 Q And the racial climate at the law school is even 4 worse than it is at the undergraduate school; true? 5 A I don't know that I would stay worse, in that sense. 6 What I talked about yesterday is that it is -- it is more 7 intense and more extreme in terms of the environmental 8 relationships, and that often has to do with the fact that, 9 as you know, the people in that law quad live together, they 10 go to school together, so they have more extended and more 11 extensive interactions. 12 Q When you're suggesting students have experiences that 13 are hostile, are you suggesting that the campus itself is a 14 hostile racial climate at the law school? 15 A Yes, as I talked about it yesterday, that campus 16 is a reflection of institutional practices and human 17 relationships and also of history. 18 Q And both of these campuses at the undergraduate school 19 and the law school, they are hostile notwithstanding the 20 level of racial diversity that they have today; true? 21 A They are less hostile, this is true, they are less 22 hostile than they were historically, and less hostile for 23 the simple reason that they do have more racial diversity. 24 Because, for example, when you look at the 25 historical research, you see that the University of Michigan 87 1 in its earliest years, not its earliest years, within my 2 lifetime, at one point did not allow University of Michigan 3 students who were black to live on that campus. 4 Q That was a bad policy? 5 A That was a -- putting it very mildly, yes. 6 Q They don't have policies like that anymore, do they? 7 A Interestingly enough, that policy was not a written 8 and stated policy, it was a practice. 9 Q It was bad, though? 10 A And so there are still exclusionary processes that 11 operate on the campus, and yes, they are bad. 12 Q And are you aware of any official or exclusionary 13 policies today at the University of Michigan, the law school 14 or the undergraduate school, with respect to race? 15 A I'm not aware of any official or exclusionary 16 practices that are planned or intended as such, but I know 17 that there are mechanisms that exclude by race, so for 18 example, to the extent that one relies disproportionately 19 on the LSAT, knowing that there are racial discrepancies 20 in performance on the LSAT, then that particular, seemingly 21 objective and unracially biased decision-making process 22 becomes quite biased in its effect. 23 Q You mentioned, I think, a number of specific things 24 that you thought were problematic, I think, at the 25 undergraduate school, primarily. Let me just see if I 88 1 have got these right. 2 That black access, because of certain college -- 3 because of certain entrance requirements, that it might 4 disadvantage black students because of their K through 5 twelve upbringing, K through twelve education? 6 A Are you referring to the -- 7 Q No, your testimony. I have no -- 8 A Yes, sir. 9 Q Is that true? 10 A Could you repeat the question? 11 Q Sure. 12 It's my understanding one of the problems you think 13 at the Michigan undergraduate school is that there are -- 14 some of the entrance requirements are difficult in terms 15 of what they expect in terms of K through twelve level 16 education that disadvantages black students; is that one 17 of the problems? 18 A That is a position I have adopted, have sort of 19 adopted and stood by in my testimony and it has to do with 20 the patterns of educational deprivation that prevent black 21 students from securing expected levels of preparation and 22 then uses something that was beyond their power and control 23 against them and blocks them further in terms of educational 24 opportunities; that is, access to University of Michigan. 25 Q And one remedy for that would be to look at those 89 1 requirements and see if they can't be changed so that they 2 don't discrimination? 3 A Interestingly enough, we're doing exactly that in the 4 University of California system, and we have just completed 5 a system-wide UC admission conference where we're looking at 6 those admissions criteria and trying to understand the ways 7 in which they systematically discriminate against youngsters 8 who, given the opportunity, could do the work, and could 9 benefit from a rich experience in a prestigious university. 10 Q One of the problems you mentioned, also, was that some 11 black groups have trouble getting funding because of their 12 small size? 13 A Yes, sir. 14 Q That could be remedied by simply making changes with 15 respect to the size the groups needs to be to get funding, 16 true? 17 A That's one adjustment. The other adjustment is by 18 increasing the numbers of students in that category; that 19 is, increasing the racial diversity of the school. 20 Q There is more than one way -- 21 A Which is what I would prefer. 22 Q There is more than one way to solve that problem, 23 true? 24 A Yes, there is, and some of those ways are quite 25 negative, because needless to say, before there were black 90 1 students in the pre-med program at University of Michigan, 2 it wasn't a problem. 3 Q You mentioned that there is a problem with police 4 discrimination, official police discrimination at the 5 campus? 6 A Yes. 7 Q Is that something that you think that the University 8 ought to do something to correct? 9 A I think the University has taken some actions to 10 correct some of the problems, but there is still quite a 11 ways to go, and certainly the answer to your question is 12 yes, because those police are under the control of the 13 University, they are Ann Arbor Campus Police. 14 Q Let me ask you about some of the things at the law 15 school, as I understand. 16 Some of this may be from your report, and if I -- 17 if it's from there, I'll reference it. 18 Am I correct that there are students at the law 19 school who believe in the current environment that they 20 are looked upon as a representative of their race? 21 A That was a consistent theme coming through from the 22 students, because they were so few in number they felt 23 this burden as the only black person or the only Chinese 24 person in the room, so anything they said was taken as a 25 representation of the race and then they would go on and 91 1 talk about just the nature of the stereotyping that they 2 experienced; that is, they felt the pressure, not only 3 because they were, quote, unquote, the representative, 4 but because there was this extreme pressure where people 5 were looking at them to either see them validate the 6 preestablished negative stereotypes about the race or just 7 to see them stumble, and so that's where they felt that 8 pressure. 9 Q This is happening at the given current levels of 10 diversity at the law school, true? 11 A Yes, they were talking about it happening in the 12 current situation, but they pointed out that often in their 13 sections there was not diversity, they were the only person 14 in the section, so in other words, that diverse group is 15 divided across multiple classes, is divided across multiple 16 sections, and so that diversity, unless it's a sizable 17 critical mass, very quickly dilutes to tokenism, and when 18 it's a situation of tokenism, those students feel the 19 extreme negative pressures. 20 Q In fact, you found that in many classes only one 21 black, Latino or Asian American is in the class, true? 22 A That's correct. 23 Q Right now -- 24 A That's what they were reporting. That's what they 25 reported. 92 1 And when you say in the class, you mean not in an 2 entering class or cohort, you're talking about in the 3 individual classes? 4 Q Classrooms. 5 A Yes, that's what they were saying. 6 Q And you found in talking with law school -- students 7 at the law school today, last year, that discussion of race 8 issues is often actually excluded from the classroom, true? 9 A In some instances they said excluded, in most 10 instances they said very poorly handled; that is, race would 11 be brought up, but the faculty, the administration were not 12 very skilled and committed in working through those issues. 13 Q And oftentimes faculty simply dismissed the discussion 14 of race as being unimportant in the classroom at the 15 Michigan Law School, true? 16 A That's what the students said they felt, yes. 17 Q And have you learned from the students that faculty 18 are neither prepared or inclined to teach about racial 19 issues at the Michigan law school, true? 20 A Well, back to your point about generalizations, they 21 said that about some of the faculty. 22 Q Okay. You reported it in your report, true? 23 A That some of the faculty were not prepared to discuss 24 these issues or interested in discussing the issues. 25 Q And on the rare occasions -- you found this, as well, 93 1 on the rare occasions when race was brought up in the 2 classroom at the University of Michigan Law School, faculty 3 called on the students of color for their opinion on how 4 black or Hispanic or minority people feel about race issues; 5 true? 6 A Some of the students did report such, yes, sir. 7 Q Professors often shut down discussions about race at 8 the Michigan Law School, true? 9 A I think that is a true statement, but the shutdown 10 is often in the form -- you were present for Ms. James' 11 testimony, and the shutting down is sometimes not even 12 conscious -- or I'm sorry, I guess that was one student 13 who talked about a listing, that was Connie's comment, 14 Escobar, about the listing of stereotypes, but then not 15 going on to a refutation of them. So the shutting down is 16 at times just stopping the process before it continues to a 17 productive conclusion, so raising stereotypes, but then not 18 challenging them. 19 Q Is it true that you found at the University of 20 Michigan Law School that there are those who believe 21 that minority students are stigmatized because of 22 affirmative action and the use of race in the admissions 23 process? 24 A That was an interesting discussion around that. There 25 were some students who made the point that that kind of an 94 1 association of affirmative action with stigma is just the 2 most recent in a long line of excuses and ways and 3 strategies of stigmatizing people by race, so it's the 4 most recent bases, because as I talked about yesterday, that 5 there was a time when presumed biological innate inferiority 6 was the stigma, and then there was a time when the cultural 7 deficits were a stigma, and even now we have some people who 8 talk about so-called socioeconomic deficits as a stigma, 9 so the point is that when you look at the history of race 10 in this country, there has always been some kind of 11 justification or excuse for the perpetuation of unequal 12 relationships between whites and blacks, as one group, that 13 place responsibility on blacks and not on whites and their 14 determination to preserve and protect their privileged 15 status. 16 Q I understand that you believe race ought to be used 17 in the admissions process and affirmative action ought to 18 continue. Would you agree that reasonable people could 19 disagree about whether or not race ought to be considered 20 in the admissions process at law schools and undergraduate 21 schools? 22 A I think reasonable people can disagree about any 23 number of subjects and topics, but I think it's vitally 24 important, first of all, that the evidence and information 25 be before them and that you have representation of 95 1 reasonable people in that discussion, and unfortunately, 2 what happens all too often is the students kept pointing out 3 that they were outnumbered, they did not have a voice, there 4 were not enough of them in the key places so that there was 5 a real and genuine debate, so it was a skewed debate, if 6 you will, a debate of unequal power, and so when you have 7 debates, quote, unquote, of unequal power it dictates as a 8 matter of the powerful group dictating to the weaker group. 9 Q You would agree, and so I understand, you believe 10 race ought to be a factor and affirmative action ought to 11 continue. 12 And would you agree that one of the negative 13 consequences of using race in the admissions process and of 14 affirmative action is it does result in some stigmatization, 15 that is, that some people will view minorities as getting 16 in with inferior academic credentials, and perhaps unfairly 17 so, but that's one of the negative consequences of using 18 race in the admissions process, can we agree on that? 19 A I can only accept that if you can take me to a time 20 when blacks weren't negatively stigmatized in the academic 21 setting, but I don't think you can find such a time in terms 22 of historically white institutions. 23 As you said, there were always excuses and reasons 24 and explanations for keeping black students out of higher 25 education, for restricting the access of Chicano-Latino 96 1 students, and as far as I'm concerned, responding directly 2 to your question, that's simply the most recent permutation 3 on that history of stereotypes and pseudo, quasi 4 explanations for exclusion. 5 Q Would you -- 6 A So whatever stigma that blacks -- I'm sorry for 7 interrupting. 8 Whatever stigma that blacks carry, it's fanciful and 9 ridiculous to say that it's affirmative action, because that 10 stigma was there up to 1954, when obviously there wasn't 11 affirmative action and blacks were legally excluded from 12 attending the bulk of or a sizable part of schools. They 13 could not, we could not, go to school with whites, and so 14 obviously, affirmative action was not the explanation there. 15 Q Would you agree that it's a negative consequence for 16 a minority student to feel he has been stigmatized in the 17 sense that others may think that the minority student is 18 only at the school because of affirmative action and with 19 lesser academic credentials, is that a negative, can that 20 be a negative consequence for that minority student? 21 A Claude Steele still talks in his work, effectively, 22 about stereotype threat and recently his characterization of 23 stereotype threat picks up elements of what you're talking 24 about, but he goes on, as do most authors that do work 25 on this question, to point out that the real and true 97 1 stereotype threat is not the internal dynamics of these 2 young people, but it's the threat of being stereotyped by a 3 professor that has the power over your grade and who then 4 responds out of that stereotyping in such a way that it 5 doesn't matter what you do, that person has predetermined 6 that you are not a competent student, that you could not do 7 well with this subject matter. And so that stigmatization, 8 that kind of stigma, is more problematic when it is acted 9 upon by people in powerful positions. 10 Q In the study that you did, didn't you actually learn 11 that there were minority students who complained about 12 stigmatization? 13 A Oh, of course. They were complaining about racism 14 and racial discrimination and the stigma of race, so 15 absolutely. 16 Q That was important for -- 17 A And how they were being treated. 18 Q I didn't ask the question very well. 19 Isn't it true that a number of students reported 20 that they felt stigmatized because of the way students at 21 the school perceived affirmative action; that is, a minority 22 student reported in your studies that they felt like many 23 students felt that the minority students that were there had 24 lesser credentials and he resented that? 25 A They resented the racial implication, yes. They 98 1 resented the implication that grouped them as a population 2 of students, assuming all of them, first of all, to be 3 unqualified. 4 Q In your report you report that there was a clear 5 feeling among many students, this is concerning the law 6 school, and it's on page seven, I believe, of your report -- 7 A Yes, I have it. Yes, sir, I have it. 8 Q At the very bottom of the page, there was a clear 9 feeling among many of the students that they had to justify 10 being in the law school because they were taking the seat of 11 a better qualified white applicant. 12 Is it fair to say that was one of the experiences 13 that was an example of the kind of experience that these 14 minority students reported? 15 A Yes, and that's a discrimination experience, a racial 16 discrimination experience. 17 Q And that has, in your judgment, a negative impact on 18 someone, right, to have that kind of stigmatization? 19 A To be discriminated against racially, absolutely. 20 Q To feel badly because people think that they are there 21 with lesser credentials, for example, does that have a 22 negative consequence for the minority? 23 A See, it's my interpretation that they felt that 24 primarily because they weren't being treated fairly, and 25 they weren't being treated fairly because it was assumed 99 1 that they weren't qualified to be in the law school. 2 MR. KOLBO: Your Honor, I probably only have a few 3 more minutes. I don't know if you want to take a break now. 4 If the witness is tired. 5 THE COURT: Did you want to break or would you like 6 to finish with the -- 7 THE WITNESS: Yes, sir, I'm fine. 8 THE COURT: Let's finish the cross examination. 9 MS. MASSIE: If I may weigh in here, I'll have to 10 throw myself on Mr. Kolbo's mercy, which is not a position 11 I like to be in. 12 MR. KOLBO: I'm very merciful. 13 THE COURT: Pardon? 14 MS. MASSIE: I was just going to ask if we could 15 take a break now. I would appreciate it. 16 MR. KOLBO: That's why I offered. 17 THE COURT: I have no problem taking a break. I 18 have no other matters this morning, so let's take about a 19 fifteen-minute break. 20 (Recess taken at 11:08 a.m.) 21 (Back on the record at 11:50 a.m.) 22 (Discussion held off the record.) 23 THE COURT: Okay. 24 MR. KOLBO: Your Honor, one of the advantages of the 25 break is that I have been able to shorten up the remainder 100 1 of my examination on the break, so. 2 THE COURT: Oh, okay. 3 BY MR. KOLBO: 4 Q Dr. Allen, you mentioned, I think earlier this 5 morning, that you're familiar with some polling data with 6 respect to diversity on affirmative action; is that true? 7 A I mentioned familiarity with polling as a process and 8 also I mentioned familiarity with polling, and then just 9 mentioned that I have familiarity with national survey data. 10 Q Okay. On the issue of the use of race in college 11 admissions and university admissions, are you familiar 12 with some polling data on that? 13 A I'm not clear on what you're asking me. 14 Q As a part of your work in this area of race and higher 15 education, have you become familiar with any polling data, 16 national polling data with respect to public opinion on the 17 importance or the propriety of using race as a factor in 18 admissions processes? 19 A I have seen several surveys, yes, and I think what I 20 was referring to is surveys that I had conducted where I 21 asked students about their attitudes in terms of their 22 attitudes toward affirmative action. 23 Q Okay. Are you familiar with the Roper study that was 24 done back in 1996 which inquired about public support for 25 the use of race as a factor in college and university 101 1 admissions? 2 A I don't remember that one specifically. I remember 3 several surveys and I remember much discussion and debate 4 about the wording of questions and that being a problem, 5 because depending on how the questions were worded, often 6 the argument was that what affirmative action does is 7 misrepresented, so in some instances the questions were 8 worded to suggest that affirmative action is a quota, in 9 other instances they were worded in such a way as to suggest 10 that it creates unfair advantages for students, so there 11 was much debate and I was familiar with some of the debate. 12 Q Are you aware of the fact that the Roper study found 13 that most faculty around the country were opposed to the use 14 of race in college and university admissions? 15 A I'm not aware of that particular study. I remember 16 vaguely one such study. I would have to see, of course, 17 how the particular question was worded. 18 Q Okay, sure. 19 A Because that part of our American character is going 20 to respond negatively to any kind of system that is unfair, 21 but when one presents a balanced picture of affirmative 22 action, then it's very clear that affirmative action is 23 structured to respond to systematic unfairness and to 24 address the fact that the society continues to discriminate 25 on the basis of race. 102 1 Q Well, you would agree that there is disagreement in 2 this country about whether affirmative action ought to be 3 continued insofar as it's defined as the use of race, for 4 example, as a factor in college and university admissions? 5 A There is debate around that question, yes, sir. 6 Q Are you familiar with a poll conducted by the Zogby 7 Company about a year ago that found that most college and 8 university students are in favor of diversity, racial 9 diversity in colleges and universities? 10 A No, I'm not. I mean, I'd have to see the study and 11 the write-up to be reminded of it. 12 Q That wouldn't surprise you, though, would it? 13 A No, it wouldn't. 14 Q And you're not familiar with the findings of that poll 15 indicating that most of those same students are opposed to 16 the use of race as a factor in making admissions decisions 17 at colleges and universities, are you aware of that? 18 A I'm not aware of it, and again, I would have to see 19 the framing and the phrasing of the question, because you 20 can structure your questions in such a way that that very 21 problem you referred to earlier of selective bias, that that 22 very bias to responses can be generated. 23 Just because people don't understand what they 24 are -- what the true issue is at hand and what -- how, for 25 example, affirmative action operates, because it never 103 1 operates, for example, to admit unqualified students, it's 2 really a mechanism that helps to select among the qualified 3 students. 4 Q And are you familiar with a poll that was released or 5 publicized at least about two weeks ago from the Gallup 6 Corporation, CNN Gallup USA, that showed that 87 percent 7 of American adults said that colleges should not be allowed 8 to consider race as a factor in admissions decisions? 9 A No. Was that the framing of the question? 10 Q That's what I have in front of me, at least in terms 11 of the article that describes the poll. 12 A I would like to see the question. 13 Q Sure. 14 A But the article, I don't need to see. 15 Q Okay. 16 A I would need to see how the question was framed. 17 Q You don't want to see the article from USA Today about 18 the USA Today poll? 19 A I will look at it. 20 THE COURT: We're back to newspapers as being 21 the source, and again, with all due respect to the 22 newspapers -- 23 BY MR. KOLBO: 24 Q Would you like to see -- do you want to see it? 25 A I enjoy reading newspapers, yes. 104 1 Q And I have extra copies here. 2 A Thank you, sir. 3 MS. MASSIE: Do you have an extra of that? 4 MR. KOLBO: Yes. The question is, how many. 5 There is one. 6 MS. MASSIE: Thank you. 7 THE WITNESS: This actually was helpful to see, 8 because again, it is wording that will trigger certain kinds 9 of responses. 10 The whole notion of racial preferences, for example, 11 is a misrepresentation of what affirmative action does, and 12 automatically disposes people to respond negatively, and 13 further you see here some suggestion that students who are 14 admitted on the basis of or using mechanisms of affirmative 15 action are not academically qualified, but again, that's 16 a misrepresentation, so quite naturally, people respond 17 by saying, well, what, you're letting people into the 18 University of Michigan who can't do the work? 19 But we know better that that, because we have a 20 history and a record and evidence that shows that students 21 who were admitted under affirmative action succeed 22 academically and then succeed professionally, so they can 23 compete, and what had kept them from competing in the past 24 was those kinds of historic racial barriers that didn't give 25 black students an opportunity to either succeed or fail, and 105 1 so what affirmative action has accomplished is to simply 2 give those students that opportunity, but once they are 3 there, they have to perform. 4 Q Do you consider and rely upon polling data as part 5 of your work as an educator and in the various work that 6 you do? 7 A I do survey work. Polling data, I read it with some 8 interest and curiosity, but again, often the challenge is 9 in terms of the validity of the framing and phrasing of 10 the questions and who it is that funded the poll. 11 Q You do polling, you do survey work of your own, 12 don't you? 13 A Survey data is different than polling data, because, 14 see, polling data, for example, is work where you are 15 tapping public opinion under contract to, say, Newsweek or 16 under contract to some other organization, and at times 17 those organizations have a specific goal in mind and with -- 18 and not only specific goal, but a political goal in mind, is 19 a better way of putting it, and when you're doing scientific 20 research, that's the way you should do scientific research, 21 you should be trying to understand objectively the questions 22 and the relationships that you're studying. 23 Q Do you have any reason to believe that the USA Today 24 poll is biased because it was paid for or who sponsored it? 25 A I don't even know who paid for this. The Zogby 106 1 International Fund, I have never heard of them. 2 Q The article you have in front of you concerns the 3 Gallup USA poll. 4 A But it mentions the Zogby International Polling Group. 5 Q Zogby was the question I asked you a few minutes ago, 6 the Zogby poll, which is an older poll. It's also 7 referenced there. 8 A Right, okay. That, I don't know. And what I would 9 say is that -- well, I'll repeat what I said a moment ago. 10 It's hard to get agreement to racial preferences, and that's 11 understandable, but the way affirmative action operates, 12 it's a misrepresentation to talk about it as a racial 13 preference system. 14 Q You, in your survey, you ask students whether they 15 agreed or disagreed that different admissions criteria and 16 standards were justified for some racial minority students. 17 A Yes. 18 Q And that at law schools you found that most of the 19 students agreed with that proposition; true? 20 A I think so. Are you looking at a particular page? 21 Q I think it's at report page -- 22 A It sounds like -- I accept that that was our finding, 23 yes, sir. 24 Q If you want to look at it, I think it's page 91, but 25 I wrote it down that you found an overwhelming majority 107 1 strongly agreed that different admissions criteria and 2 standards were justified for some racial minority students. 3 A Yes, that was an attitude or opinion question and they 4 did agree. 5 Q Is it fair to say that you agree with that 6 proposition, too? 7 A I agree with what that proposition implies, and it 8 implies that when you are selecting students, you recognize 9 that the broadest set of indicators of academic promise and 10 academic accomplishment would be to use -- should be used. 11 So in other words, it should not simply be a matter 12 of test scores or even a matter of test scores on GPA's, 13 but again, look -- as I said, looking at the whole person 14 and looking at that whole educational experience, so looking 15 at letters of reference, looking at community service, so a 16 thorough, whole reading of the academic record should be the 17 basis for the admissions decisions, so I fully agree with 18 that. 19 Q Okay. Last subject, you have mentioned that you're 20 familiar with Claude Steele? 21 A Yes, I am. 22 Q Are you familiar with the work of his brother, Shelby 23 Steele? 24 A The one book that I have seen of Shelby -- of Shelby 25 Steele's is The Content of Character, something like that. 108 1 Q Have you seen A Dream Deferred? 2 A I have seen the title. I haven't read the book 3 yet, no. 4 Q Do you understand that Shelby Steele is an opponent 5 of the use of race as a factor in college and university 6 admissions? 7 A I have heard as much. 8 Q Let me just read a statement? 9 MS. MASSIE: I'll raise an objection, continuing 10 relevance objection to this line of questions. I don't 11 think it has anything to do with anything what Shelby Steele 12 thinks, just because he happens to be related to Claude 13 Steele. 14 MR. KOLBO: Your Honor, I want to ask the question 15 just briefly whether he agrees or disagrees with an opinion. 16 THE COURT: You may ask him. 17 BY MR. KOLBO: 18 Q And this, I believe, is close to my last question, if 19 not my last question, Dr. Allen. I just want to read a 20 statement that Dr. Steele, Shelby Steele wrote in his book, 21 A Dream Deferred, and ask you simply whether you agree or 22 disagree with it. 23 And this is Dr. Steele: "The most 24 dehumanizing and defeating thing 25 that can be done to black Americans, 109 1 for example, is to lower a standard 2 in the name of their race." 3 Do you agree or disagree with that? 4 A I would be curious to know how he arrived at that 5 conclusion. I mean, is that based on a survey or focus 6 groups? 7 Q That's his opinion as expressed. 8 A Oh, that's his opinion? 9 Q Yes. 10 A Well, I don't think the evidence is there to support 11 his opinion, and if he clearly frames it as an opinion, 12 then it's an article of faith, and I'm hesitant to challenge 13 people's articles of faith until they represent them as if 14 they are fact. 15 Q I'm just asking you if you agree or disagree with 16 the statement that he has made. I take it you disagree? 17 A Would you read that statement again, please? 18 Q Yes. 19 "The most dehumanizing and 20 defeating thing that can be done 21 to black Americans, for example, 22 is to lower a standard in the name 23 of their race." 24 Agree or disagree? 25 A You know, when I read the history of what has happened 110 1 to black people in this country, and the various long line 2 of dehumanizing acts and experiences we have been subjected 3 to, I can't begin in good conscious to accept that this 4 particular assertion of the most dehumanizing thing you can 5 do to black people has any kind of credibility or makes any 6 kind of sense. 7 Black people have been lynched in this country. 8 Black people have been unfairly denied their rights as 9 citizens, and those kinds of harsh, extreme, degrading 10 experiences continue into the present, and so I, for a 11 variety of reasons, don't agree with that, and am really 12 just at a loss to even comment on it, because as you said, 13 it's his opinion, and as best I can tell, it has no basis 14 in fact. 15 MR. KOLBO: That's all I have. Thank you, 16 Dr. Allen. 17 THE WITNESS: Thank you, sir. 18 THE COURT: Any further questions? 19 MS. MASSIE: Thanks, Judge. 20 RE-DIRECT EXAMINATION 21 BY MS. MASSIE: 22 Q Hello, Professor Allen. 23 A Attorney Massie. 24 Q Mr. Kolbo asked you some questions about general 25 societal discrimination. You're aware that this is a case 111 1 about admissions to law school? 2 A (Nods head.) 3 Q Can you respond verbally? 4 A Yes, I am. 5 Q Sorry. 6 A I'm sorry. 7 Q And without affirmative action, use of grade point 8 average just operationalizes and intensifies the different 9 forms of societal and educational discrimination you have 10 been describing, right? 11 A That's correct. 12 Q So without affirmative action, using aggregate 13 differences in GPA, you use the denial of opportunity to 14 further deny opportunity? 15 A That's correct. 16 Q Is there a double standard in education in our 17 society? 18 A Yes, very much so. 19 Q What is the content of that double standard? 20 A That double standard takes the form of a pattern of 21 denying educational access and opportunities to people of 22 color and at the same time making those opportunities 23 plentiful, plentifully available to whites, and so it 24 translates into a double standard such that the two 25 groups, that is, whites and nonwhites, have not had equal 112 1 opportunities, but they are then later being held to a 2 quote, unquote, equal standard. 3 Q And in your view, is it necessary to take race into 4 account in college and graduate and professional school 5 admissions to the extent that it's necessary to do so to 6 counteract the effects of racism? 7 A I would say, yes, and then I go into and elaborate 8 that race is taken into account anyway by virtue of the fact 9 that the system of admissions privileges white experience 10 and white routes of educational preparation; that is, whites 11 have had advantages and have had preparation that then is 12 the basis for making those decisions about who is admitted, 13 so even when they talk about race not being present, it is 14 very much present, because it's a system that's dominated 15 by white privilege. 16 Q So if you were to force a university to eliminate the 17 consideration of race in examinations, we'd be asking them 18 to rubber stamp that double standard? 19 A Absolutely. 20 Q We'd be asking them to ratify existing discrimination 21 and bias? 22 A I agree. 23 Q You talked a little bit about the systematic effects 24 of unequal opportunity or the systematic nature of unequal 25 opportunity. I wanted to ask you, you spoke some and had an 113 1 exchange with the Court on how economic class and race are 2 related in systematic ways. 3 Does race have systematic effects in our society and 4 in education that go beyond, that extend beyond the question 5 of economic class? 6 A Yes, very much so. And the evidence is again 7 plentiful where we see that for black students or 8 Chicano-Latino students who are in a -- in the same 9 educational setting as white students of, you know, 10 comparable economic status, they experience different 11 educational outcomes; that is, those nonwhite students 12 experience different educational, because their experiences 13 within the school system are disadvantaged. 14 So we have literature that's talking now about 15 schools within schools, so you will have, say, a school 16 that includes both black and white kids and the school's 17 curriculum is fully developed, but when you look at the 18 patterns of difference by race in terms of which students 19 are in the advanced placement classes, which students are 20 in the academic preparation or the college preparatory 21 track, then what you see is discrimination or segregation 22 within the school; that is, the higher educational track, 23 that track that leads to the University of Michigan is 24 disproportionately white, and black students, Chicano-Latino 25 students are excluded from that track. Even though they are 114 1 all in the same building, their educational experiences are 2 quite different and they are segregated by race. 3 Q And in fact, the work of Claude Steele and others make 4 it clear that even for two students sitting in the same 5 classroom, even for the lucky black or Latino middle class 6 student who doesn't get tracked, the experience of that 7 classroom is totally dependent on the race of the person 8 doing the experiencing? 9 A That's very true. He does an excellent job in 10 systematically in clinical and experimental situations 11 proving that point. 12 Q So socioeconomic status is no substitute for 13 affirmative action for race, because it's not race? 14 A Exactly. 15 Q There is a phenomenon of black movement into the 16 suburbs into some areas, including this one. I know you 17 lived here for some time and did some studies on the upper 18 midwest and on Michigan. Are you familiar at all with the 19 process of blacks suburbanization saying into Southfield, 20 Michigan? 21 A Yes, I am. 22 Q And what can you tell us about how that 23 suburbanization process has affected the educational 24 experiences and prospects of young black people? 25 A What we have seen, and I should give you the sort of 115 1 basis for the work I have done, in the book, Race and the 2 Quality of Life in America, we looked at that very question 3 of suburbanization, and then as director for one year of the 4 Detroit area study, which is the study of the three-county 5 metropolitan area, we looked at race and residence. 6 And what has happened is that even with that 7 suburbanization, then what unfolds is a process where 8 those suburbs become racially segregated, so Inkster 9 becomes a -- it's a suburb, but it is racially segregated, 10 it becomes a racially segregated suburb. 11 Similarly, the case with Southfield, and with the 12 turn toward a more racial, racially segregated suburb comes 13 the associated turn as regards the declining quality of 14 schools and the availability of resources, just because of 15 the patterns and then the ways in which schools are funded. 16 And so what happens is that you see repeated 17 patterns of educational deprivation by race that have been 18 characteristic of central cities that had largely black 19 populations being now played out with suburbs that move 20 to a point where they are majority black. 21 Q And they become majority black in large part because 22 of white flight; correct? 23 A Absolutely. We have had a history of pattern of 24 whites fleeing residential proximity with blacks and that 25 ties into all the stereotypes about black people, it ties 116 1 into all the stigma associated with blackness, and it's very 2 difficult to find integrated communities in this country. 3 Q And the white people that contribute to the phenomenon 4 with the white flight, are all those people conscious 5 bigots, in your opinion? 6 A Not really, not really. They often will respond 7 unconsciously, but they respond consistently and in a 8 patterned way, and that is to move out of any community 9 that is beginning to get any semblance of a sizable black 10 population, or for that matter, any semblance of a sizable 11 critical mass of Chicano-Latinos. 12 Q And you can have that kind of unconscious effect 13 because race structures our experiences and our perceptions 14 so fundamentally in this country? 15 A Exactly. 16 Q You have studied race and racism in various sectors of 17 life, health, housing, education, other kinds of welfare 18 questions, and you have studied stereotypes and stigma and 19 the phenomenon of racism for decades now? 20 A Yes. 21 Q In your opinion, is affirmative action the source of 22 racial stereotypes and stigmas that say that black and 23 Latino people are intellectually inferior? 24 A Absolutely not. 25 Q What do you base that on? 117 1 A Just on a reading of an accumulated scholarship 2 in terms of history, historical studies, in terms of 3 sociological studies that demonstrate that those kinds of 4 negative stereotypes preceded affirmative action, and 5 indeed, a stated purpose of affirmative action was to create 6 mechanisms for tearing down those historic and established 7 and longstanding racial stereotypes, so it's actually 8 fanciful and laughable to talk about affirmative action 9 as being a cause of such stigma. 10 Q You mentioned the testimony of Crystal James several 11 times in your testimony. 12 A Yes, I have. 13 Q And Ms. James said that when she was at Sanford, which 14 had affirmative action at the time, she didn't feel like 15 anybody ever thought she was there because of affirmative 16 action. 17 A That's very true. 18 Q And then what happened when she went to UCLA after 19 affirmative action was eliminated and the school was 20 resegregated? 21 A Well, the paradox is that when she went to UCLA and 22 affirmative action was not a factor in her selection, she 23 in fact experienced discrimination because people used 24 that assumption as a basis for saying that she was not 25 educationally qualified and creating extreme psychological 118 1 distress for her and isolating her socially and undercutting 2 her academic performance. So that was a paradox. 3 And the situation where she was admitted under the 4 basis of affirmative action, no stigma was attached, and 5 in the reverse of that situation, that is, when she was 6 admitted to the University of California Law School, UCLA 7 Law School after affirmative action, that is, without any 8 kind of assistance from affirmative action, she nevertheless 9 was penalized and stigmatized as using that as a basis for 10 saying that she was not educationally qualified and should 11 not be there. 12 Q And does it help support your position that we need 13 greater numbers of black and Latino and Native American 14 students in order to reduce stereotyping and stigma and 15 hostile environment? 16 A I think that is absolutely the case and I think that 17 the past 30 years has shown us that this is true and we are 18 a better society now as a result of the fact that there is 19 now diversity in places where there hadn't been diversity, 20 and affirmative action was one of the chief mechanisms for 21 opening up spaces where not only black people had been 22 excluded from, not only Chicano-Latinos had been excluded 23 from, but women had been excluded from, and now that we 24 have opened up the society, we find that many of those 25 institutions are much stronger as a result. 119 1 Q We have come a long way, but we still have a long way 2 to go? 3 A Absolutely. 4 Q And speaking of the University of Michigan law school, 5 in particular, the U of M law school has come along way in 6 your view, isn't that right? 7 A I agree, most definitely. 8 Q And it still has a very long way to go? 9 A Very correct. 10 Q Is eliminating affirmative action there the first 11 step? 12 A The first step backward. 13 MS. MASSIE: Thank you. 14 THE WITNESS: Thank you. 15 THE COURT: Professor Allen, can I ask you, take 16 your expert witness hat off for a second and put your 17 teaching hat on for a second, because my clerks and I talked 18 about this, and I looked at your survey and so forth, and I 19 guess I need some more definition of some words that I know 20 you can help me with. 21 THE WITNESS: I'll try, Your Honor. 22 THE COURT: And in your surveys, you talk about 23 people, asking them about their racial or cultural 24 identification and you use the word, Latino, and in this 25 trial we have heard lots of words. If you could define 120 1 that for me. 2 The reason I ask that is, just a little while ago 3 you used other words and so forth. If you could, I'm going 4 to ask you to define words, your teaching hat more than 5 anything, because I have to learn a little bit more. I 6 thought I knew until I got here and I think you're the 7 person. 8 If you could define that for me, I'd appreciate 9 that. 10 THE WITNESS: That terminology is actually, Your 11 Honor, a reflection of my learning by virtue of moving out 12 to California. As you know, we in the midwest tend to use a 13 comparable term of Hispanic. 14 THE COURT: Right. That was my next question. 15 THE WITNESS: And by virtue of moving into 16 California and being educated by my colleagues there, I have 17 come to use a broader and preferred term of Latino, which 18 is of Latin American ancestry, basically the point of 19 reference, but in addition, to talk and think in terms 20 of Chicanos, who are more so Mexican Americans, because 21 in trying to understand the complexities of racial 22 discrimination, say, in California, the one change that 23 comes very clearly is that to some extent the experiences 24 of Chicanos are different from, say, a Latino, and this 25 is -- it was really quite interesting for me to understand 121 1 and learn, for example, that there was a sizable Jewish 2 population in Mexico from an earlier point of migration 3 out of Europe for reasons of the Holocaust and related 4 reasons, and so -- but the point being that there is a 5 distinction between, say, a Chicano and a Latino in terms 6 of culture, in terms of experiences, and in some cases even 7 in terms of phenotype; that is, skin color and related 8 issues. So now that's my best, and I have to qualify, it's 9 a clumsy explanation. 10 THE COURT: But it's a good one. 11 THE WITNESS: There are experts that could do a 12 better job. 13 THE COURT: Could I ask you one more question, and 14 that has to do with Asian Americans and then Pacific 15 Islanders. 16 THE WITNESS: Yes, sir. That again has been, and 17 Your Honor, you're tapping into what has been the wonderful 18 part of my education in California, because, and strictly 19 and solely due to that diversity there, where people have 20 spelled out to me the diversity, first of all, within the 21 group of Asian Americans, that there are these rich and very 22 important differences between the Chinese and Korean and 23 Vietnamese experiential groups in terms of not only language 24 and culture, but of course, there are the similarities, 25 but then further that linking to the Pacific Islander 122 1 population, people from Samoa and from that wide range 2 of Pacific Islands and even to a lesser extent Native 3 Hawaiians, but once more, we can think in terms of them 4 as a larger category, but being sensitive to the rich 5 differences underlying. 6 So the Asian Americans and the diversity within the 7 group and then the Asian American population vis-a-vis, say, 8 Pacific Islanders, for example, you might even -- well, I 9 have said enough. 10 THE COURT: Let me ask you one more question, and 11 again, you said something before, and I understand, you 12 don't have to give me the answer again, but in terms of 13 the effects of what happened after Proposition 209 in the 14 educational, and I suspect in other areas, because Counsel 15 gave me a case to read which I have in terms of contracting, 16 and so either tell me as a sociologist and maybe just as a 17 citizen out there, in short explanation, tell me, as you 18 perceive it, what other effects it had in areas probably 19 just generally. 20 THE WITNESS: Your Honor, it -- 21 THE COURT: Is that too wide of a question? 22 THE WITNESS: No, sir. 23 That proposition was demoralizing in many respects. 24 I mean, it sent a message that rather than encouraging and 25 creating hope for students of color who had been excluded, 123 1 that instead there would be no opportunities for them at 2 the University, at the most prestigious universities in 3 California, the UC system, and so the effects have been 4 multiple. 5 I mean, psychologically negative effect, but also a 6 negative effect in terms of schooling process for many of 7 those young people, because often when you're talking about 8 an inner city school situation, it's a situation where it's 9 hard to find hope anyway, and so to the extent that this 10 additional life preserver is taken away, then it just has 11 negative consequences for students. 12 And physically, for us, for me, it's just changed 13 my -- the richness of my experience at the University of 14 California-Los Angeles. I went there because it was a place 15 that combined diversity and excellence, and as I said, in 16 the first year of implementation of Prop 209 there was a 17 40 percent decline in the Chicano-Latino population, a 18 50 percent drop in the black student population, and so 19 thereby depriving us of the rich contributions of those 20 students. 21 And there were related drops, recent stories that 22 research is showing us, in the new hires of white female 23 faculty. We have had a 38 percent decline in the new hires 24 of white females since Prop 209 was implemented and I think 25 all of this just reminds us -- 124 1 THE COURT: It just flowed down? 2 THE WITNESS: Yes, sir, and we still need those 3 kinds of mechanisms. 4 THE COURT: I appreciate it. It's been a pleasure 5 having you. 6 THE WITNESS: Thank you, sir. It's been a pleasure 7 being here. 8 THE COURT: And I enjoyed learning from you. 9 THE WITNESS: Thank you, Your Honor. 10 THE COURT: Okay. Next witness. 11 MS. MASSIE: Mr. Washington will take the next 12 witness. 13 THE COURT: You're letting him work today? 14 MR. WASHINGTON: I'm going to work today, Judge. 15 We would like to call Dr. Eugene Garcia, from the 16 University of California. 17 THE COURT: Okay. Dr. Garcia, would you be kind 18 enough to raise your right hand? 19 We're going to blame the bad weather on you. Did 20 you bring it with you? 21 THE WITNESS: I think so. 22 E U G E N E G A R C I A, 23 having been called as a witness herein, and after having 24 been first duly sworn to tell the truth, the whole truth 25 and nothing but the truth was examined and testified. 125 1 DIRECT EXAMINATION 2 BY MR. WASHINGTON: 3 Q Sir, would you state your name and your business 4 address for the record, please? 5 A Yes. My name is Eugene E. Garcia. I'm at the 6 University of California-Berkley. I'm Dean of the Graduate 7 School of Education there. 8 Q And Dr. Garcia, before you became Dean of the Graduate 9 School of Education at the University of California, can you 10 tell us where you grew up? 11 A Yes, I grew up in the southwestern part of the United 12 States, around Four Corners area, specifically, in the area 13 of the western slope of Colorado, small town of Fruita, 14 actually, which is close to a larger town of Grand Junction, 15 Colorado. 16 Q And what did your parents do, sir? 17 A They were farm workers, we were migrant workers and 18 share croppers. 19 Q And what is your native language? 20 A Spanish is my native language. 21 Q Did you go to high school in that area, Four Corners? 22 A Yes, I did. 23 Q And where was that? 24 A That was in Grand Junction, Grand Junction High 25 School. 126 1 Q Did you have occasion while you were in high school 2 to take an SAT test? 3 A I remember it very well, yes, I do. 4 Q And I won't ask you what you got, but did anybody talk 5 to you afterwards and give you any kind of counseling about 6 what it all meant? 7 A Sure. Those of us who were considering going on to 8 college were asked to take the SAT. My baseball coach is 9 the one that actually suggested I do that, because I was 10 looking at a baseball scholarship, and the counselor, 11 therefore, called all the individual students one by one 12 to indicate to them how they had done. 13 So you may remember your own SAT scores, they are in 14 percentile ranks, they give you these, and as a high school 15 senior, at least many of my colleagues and I could not 16 understand what all these numbers meant, and so I did have 17 a discussion with him right after that score came. 18 Q And did he give you some advice as to what your 19 prospects were? 20 A Well, he told me I didn't do very well, but said that 21 was okay, but one comment he made very directly was, in a 22 very supportive way, is that, he said, you'll never be a 23 college professor. 24 THE COURT: No comment? 25 THE WITNESS: No comment. 127 1 THE COURT: We had a discussion about who becomes 2 different things. 3 THE WITNESS: And I didn't -- by the way, I didn't 4 ever think I would be a college professor, so. 5 BY MR. WASHINGTON: 6 Q What have you done for the last 28 years of your life? 7 A Most of the early time, of course, after high school 8 was spent at a community college, then to a four-year 9 university, on to graduate school, and then the last 10 26 years in the -- in higher education with some time in 11 the Federal Government. 12 Q And for the 26 years have you been a college 13 professor? 14 A I have. 15 Q And during the course of that 26 years, have you had 16 occasion to return to the SAT test? 17 A I have on several occasions, correct. 18 Q You have published books on the SAT? 19 A I have, on the SAT, commentary on the SAT, yes, 20 correct. 21 Q Let me back up a little bit. 22 A Sure. 23 Q You said -- if you would give us just a review of your 24 education, sir. 25 A Sure. I again went to community college, off to the 128 1 University of Utah, where I graduated with a Bachelors in 2 Psychology, and off to a doctoral program at the University 3 of Kansas, a degree in human development and psychology. 4 Q And when did you take your PhD? 5 A When? 6 Q Yes. 7 A 1972. 8 Q And did you then do post-doctoral work? 9 A Yes, I did post-doctoral work at Harvard University. 10 Q And in what field did you do post-doctoral work? 11 A Child development. 12 Q And did you become -- did you then go do any research 13 for the National Research Council? 14 A Yes. I was a post-doctoral fellow that was funded 15 thereafter to do work in the areas of language development 16 and academic achievement. 17 Q And did you receive other post-doctoral fellowships? 18 A Yes. I also received a post-doctoral fellowship from 19 the Kellogg Foundation, a leadership foundation program that 20 tried to provide support for, broadly, looking at issues of 21 education, social development, et cetera. 22 Q And where did you begin your career as a college 23 professor? 24 A Back at the University of Utah, where I had received 25 my BA. 129 1 Q And what year did you begin as a college professor? 2 A 1972. 3 Q And in what department did you enter the University of 4 Utah? 5 A Department of Psychology. 6 Q And after the University of Utah, did you go work at 7 another college? 8 A Yes, I have been at the university -- then from Utah I 9 went to University of California-Santa Barbara. 10 Q And were you a chair of any departments there? 11 A I was the Chair of the Chicano Studies Department 12 there. 13 Q And from Santa Barbara, where did you then go? 14 A I went to Arizona State University. 15 Q And how long were you at Arizona State University? 16 A Approximately seven years. 17 Q And what was your position there? 18 A I was the Director of a research center, Bilingual 19 Education Research Center. 20 Q Did you then move back to the University of 21 California? 22 A Yes, I then returned to the University of California 23 Santa Cruz. 24 Q In what position? 25 A As Chair of the Education Department at Santa Cruz. 130 1 Q And how long were you at Santa Cruz? 2 A I was at Santa Cruz about eight years. 3 Q And did you have, then, occasion to work for the 4 United States Government? 5 A Yes. I went to work in the early days of the Clinton 6 Administration as an Assistant Secretary Director in the 7 Office of -- Department of Education. 8 Q And what particular office were you working in? 9 A I was the Director of the Office of Bilingual 10 Education and Minority Language Affairs. 11 Q And how long did you work for the United States 12 Government? 13 A Just two years. 14 Q And then where did you go? 15 A And I took my present position at UC-Berkley. 16 Q And did you become immediately the Dean at the 17 University? 18 A Yes, I became the Dean. 19 Q Now, Dr. Garcia, have you had occasion to publish any 20 kinds of work on education and in particular education of 21 Latinos and under-represented minorities? 22 A Yes, quite extensively worked in the area of language, 23 culture and schooling with the focus on Latino students, 24 Mexican American students, Chicano students, et cetera. 25 Q And can you give me some examples of work you've 131 1 published? 2 A Sure. Early work in language development of children 3 who are multilingual, who come from homes in which two 4 languages are spoken, work which is -- has detailed the 5 kinds of educational achievement and educational experiences 6 of those same kinds of students as they move through the 7 school system, and then work which looks at the academic 8 achievement and relationship of academic achievement and 9 opportunities for achievement and access to higher 10 education. 11 Q And have you also studied a field called 12 psycholinguistics? 13 A Yes. My training is primarily in the area of 14 language development, child development. 15 Q Tell me what psycholinguistics mean. 16 A It's the study of the development and use of language 17 by individuals in multiple settings and how individuals 18 function to use language and acquire it to do so. 19 Q And have you had, in addition to publishing books on 20 these subjects, have you published a number of articles and 21 publications on the subject of the education of Latinos and 22 also of under-represented minorities generally? 23 A Yes, I have, quite extensively. That work, again, is 24 either large scale analyses for policy purposes, looking at 25 achievement access, et cetera, and more intensively looking 132 1 at what actually goes on in classrooms. 2 MR. WASHINGTON: Your Honor, I would offer 3 Dr. Garcia as an expert in the field of education and 4 also in the field of psycholinguistics. 5 THE COURT: Any objection? 6 MR. KOLBO: I have no objection. 7 THE COURT: He shall be qualified to testify in 8 those areas. 9 MR. WASHINGTON: Thank you very much. 10 BY MR. WASHINGTON: 11 Q Dr. Garcia, you have said you have been in the 12 University of California system for a number of different 13 spans of time. Can you describe for us what the University 14 of California is? 15 A Sure. California is really made up, through the 16 process of a master plan of higher education, made up of 17 three different institutions; community colleges, which 18 service essentially two-year educational -- or offers a 19 two-year educational arena, and then two four-year systems, 20 CalState University system and a UC system. 21 The University of California system is, in 22 California, identified as sort of the premier institution. 23 It makes eligible and attempts to educate the top twelve 24 and-a-half percent of the students of California. The 25 CSU then takes the other 40 percent, and the remainder are 133 1 encouraged to attend the community colleges. In essence, 2 California has attempted to make higher education a reality 3 for all students in California. 4 Q And the University of California, that twelve 5 and-a-half percent figure that you mentioned, where does 6 that come from? 7 A It's actually in the master plan, and the idea of the 8 top twelve and-a-half percent is to try to take a set of 9 students who have been academically successful at the 10 high school level in California, recall the specifics 11 that California is only allowed to serve ten percent 12 nonCalifornia residents, so University of California serves 13 primarily residents of California, and the intent there is 14 to take those top students and give them the very best 15 educational experience. 16 Now, the University of California constitutionally 17 and otherwise makes clear that its goal is to produce the 18 leaders for the future, leaders necessary in all domains 19 of the social fabric of California, the economics, the 20 political, the educational, the intellectual. 21 THE COURT: Just one quick question. So what you're 22 telling me that is the top twelve and-a-half percent of 23 students no matter what high school they went to? 24 THE WITNESS: Right. 25 THE COURT: No matter what neighborhood it's from or 134 1 anything else, they are, if they chose to, they are allowed 2 to go to -- 3 THE WITNESS: They become eligible. We have the 4 term, eligibility. They become eligible to come to the 5 University of California, yes. 6 THE COURT: Okay. 7 THE WITNESS: And it is a statewide eligibility. 8 THE COURT: And so assuming they want to, they are 9 guaranteed, and the next 40 percent is guaranteed, also? 10 THE WITNESS: Correct, the next 40 percent is 11 guaranteed a place in the CalState University system. 12 THE COURT: No matter? 13 THE WITNESS: Right. 14 THE COURT: And then the rest are also in the 15 community college kind of setting? 16 THE WITNESS: A community college, correct. 17 THE COURT: Even if they graduated last in their 18 class? 19 THE WITNESS: That's right. 20 THE COURT: No matter what school they went to? 21 THE WITNESS: That's right. Right. That's the 22 intent, is all students should have a chance to go on to 23 higher education. 24 THE COURT: So for instance, if -- we have heard 25 here and it's certainly a reality that lots of school 135 1 districts are segregated because that's how it happens 2 historically and so forth, so no matter what school, no 3 matter where it is, twelve and-a-half percent of those 4 students will -- 5 THE WITNESS: Not twelve and-a-half percent of those 6 students, twelve and-a-half percent in the state. So you 7 may have some high schools that may have the entire senior 8 class in the twelve and-a-half percent and some high schools 9 may have none. 10 THE COURT: I got you. That was my point. 11 THE WITNESS: And that is the problem, that we do 12 have high schools that are highly segregated serving 13 segregated students, particularly Latino students. 14 THE COURT: Right. 15 THE WITNESS: That do not have any eligibility. 16 THE COURT: So if those schools -- the top twelve 17 and-a-half percent goes in that pool of the twelve 18 and-a-half percent? 19 THE WITNESS: That's right. 20 THE COURT: So they are not guaranteed to do that. 21 THE WITNESS: No. 22 THE COURT: The only thing they are guaranteed is 23 somewhere in the twelve and-a-half, the 40, or the community 24 college? 25 THE WITNESS: That's correct, that's correct, yes. 136 1 BY MR. WASHINGTON: 2 Q Just so I understand it, the twelve and-a-half percent 3 is the statewide figure of people who are eligible -- 4 A Right. 5 Q -- to go to the University? 6 A Of high school graduates that are eligible. 7 THE COURT: I understand it's the state, not 8 schoolwide? 9 THE WITNESS: Statewide, not school by school. 10 THE COURT: There are some states that are talking 11 school by school, are there not? 12 THE WITNESS: Texas. 13 THE COURT: I ask you, because I know that in the 14 last Administration, that there was some discussion about 15 that. 16 THE WITNESS: Texas has adopted for the UT system, 17 UT Austin, UT Texas A&M, the top ten percent of students in 18 their high school. 19 THE COURT: In their high stool? 20 THE WITNESS: Context-based percentage, California 21 is statewide. 22 THE COURT: Statewide? 23 THE WITNESS: Statewide. 24 THE COURT: So the only guarantee you have, you know 25 you can go to school, but it may be a community college? 137 1 THE WITNESS: Correct, correct. 2 THE COURT: I didn't mean to interrupt. 3 MR. WASHINGTON: Sure, no problem, Judge. 4 BY MR. WASHINGTON: 5 Q Dr. Garcia, what's the difference between the 6 University of California system and the California State 7 College -- 8 A Sure. 9 Q -- and the community college system, educationally 10 speaking? 11 A The University of California offers a much more 12 diverse set of options for students. Keep in mind the 13 University of California is the only part of the system 14 that offers the doctoral degree, so they are identified as 15 research institutions, so the faculty members who are 16 appointed to serve in the University of California are 17 judged primarily on the research and scholarship 18 capabilities. 19 They also teach, and the idea here is to place 20 our very best students with our very best faculty with the 21 intent of producing the best intellectual climate, and 22 again, producing the kind of leaders that we need for the 23 future. 24 Q And can you then contrast that to the State College 25 system in California? 138 1 A The State College system is not driven by research 2 productivity or scholarship. That doesn't mean the faculty 3 there don't care about it, it's just that they are primarily 4 a teaching institution. If you can characterize both the 5 CSU and the community college as a dissemination place where 6 students can gain knowledge, well, the University of 7 California is a place where knowledge is being discovered 8 and imparted at the same time, those are the real 9 distinctions, I think. 10 Q Okay. How many campuses does the University of 11 California have? 12 A The University of California has eight campuses that 13 serve undergraduates, and then a ninth campus, that's a 14 health science center, medical school. 15 Q And now you have -- we have heard a lot of talk about 16 two of those campuses, Berkley and UCLA? 17 A Uh-huh. 18 Q Tell us the other campuses in the University of 19 California system. 20 A Sure. They are -- most of them run down the coast, so 21 they are Davis, Berkley, UCLA, San Diego, Santa Barbara and 22 Santa Cruz, and I think that finishes them off. 23 MR. PAYTON: Riverside. 24 THE WITNESS: Riverside, sorry. And we have a new 25 one scheduled to come on board, Merced, in the central 139 1 valley. 2 BY MR. WASHINGTON: 3 Q Dr. Garcia, you mentioned the basic plan for the 4 University of California. Is there -- is it charged in some 5 way to provide education for the entire State of California? 6 A It is. Constitutionally, it was given the charge 7 of educating all students in California. 8 Q And does the constitution speak in terms of 9 representation? 10 A Yes, it does, specifically, right. 11 Q Can you tell me what in general the charge of the 12 University of California was? 13 A The charge is to make sure that the University of 14 California in fact does serve all the citizens of the State 15 and the children of those citizens, and is intended to be 16 inclusive. The Board of Regents have reaffied that position 17 on several occasions throughout the several hundred years, 18 the couple, 125 years or so of the University's existence. 19 Q So the University of California is supposed to 20 represent the people of the State of California? 21 A Correct, correct. 22 Q We have heard a lot of talk about it. Can you tell 23 us, just break down for us the racial and ethnic background 24 of the people of the State of California today? 25 A Sure, sure. I think we passed the magic point about 140 1 three months ago, my demographer colleagues told me, in 2 which California has actually become overall a minority/ 3 majority state; that is, there are no majority in California 4 in terms of ethnic, racial or typical ways of identifying 5 groups in the state and in the nation. 6 In the K twelve sector, we have become a minority/ 7 majority K twelve sector about seven years ago, in which, 8 again, within the public school system there is no one 9 group of students that serve as a majority. 10 The fastest growing population in California is 11 the Latino population. That population is growing at 12 approximately five to six percent per year, and again, if 13 we do the projections, probably in somewhere around 2015 we 14 will likely be a state in which the K twelve public schools 15 will be predominantly Latino. 16 THE COURT: Define Latino for me. 17 THE WITNESS: Sure. We define it primarily by 18 asking individuals what they want to be called, so in 19 California, in 1992, there was a statewide study in which 20 randomly selected individuals who had identified themselves 21 as either Hispanic, Spanish surname or other Latin 22 background in the State of California and essentially 23 asked them what they would like to be called. 24 They most -- 60 percent of them identified 25 themselves as Latino, the next category was Mexican 141 1 American, then Chicano, and then down the line. So when 2 we refer to Latino population, we're referring to a group or 3 a set of population that had been identified either by the 4 U.S. Census as a Hispanic American, Mexican American, 5 et cetera, but I use the term Latino as one that in fact 6 individuals who come from those categories as a majority 7 feel is a term that identifies them. 8 THE COURT: But it includes all of them? 9 THE WITNESS: It includes all of them, right. 10 THE COURT: All right. Thanks. 11 BY MR. WASHINGTON: 12 Q And Dr. Garcia, as I understand it, at this point the 13 white population of California is less than 50 percent of 14 the population as of today? 15 A That's correct. 16 Q And now, how has that been reflected -- and let's go 17 before 209. Well, actually, let me back up. 18 You mentioned eligibility for the University of 19 California system? 20 A Correct, right. 21 Q What does it mean to be eligible for the University of 22 California? 23 A Very specifically, there are several ways to be 24 eligible. The predominant way is to actually take the 25 required courses in the high schools that one is attending, 142 1 and those courses are prescribed by the University of 2 California. There are so many units in mathematics, so many 3 units in social studies, so many units in science, foreign 4 language, two years of a foreign language, et cetera. 5 So in order to become eligible, you must at least 6 have taken those courses as identified by your high school 7 as approved by the University of California. 8 The second indicator or qualifier of eligibility is 9 a 3.2 grade point average in those courses, so that if you 10 have taken those courses and have obtained a 3.2, then you 11 become eligible, you become part of that twelve and-a-half 12 percent. 13 How do we know that's part of the twelve and-a-half 14 percent? We do studies about every five to six years, 15 looking at what we need to do to identify the top twelve 16 and-a-half percent and we have come to this set of 17 indicators. A 3.2 grade point average in those classes 18 will roughly identify twelve and-a-half percent of the 19 high school graduates. 20 Q Dr. Garcia, before 209, can you tell me of the various 21 ethnic and racial minorities in California, were twelve 22 and-a-half percent of all of those various populations 23 eligible for admission to the University of California? 24 A No. Approximately three percent of Latino students 25 were eligible to the University of California, 3.8 percent 143 1 or close to that amount, and blacks, too, about 3.2 percent, 2 so even though -- as a matter of fact, larger portions of 3 the K twelve population and of high school graduates, they 4 didn't come close to the twelve and-a-half percent. 5 Q So as I understand it, even before 209, only about 6 three percent of the Latinos who were graduating from high 7 school were even eligible -- 8 A That's correct. 9 Q -- at the University of California? 10 A That's correct. 11 Q And, I think you said, the figure was 3.8 percent for 12 black students? 13 A No, 3.8 for Latinos, 3.2 for African Americans. 14 Q Now, once you become eligible to go to the University 15 of California, what do you have to do to get into the 16 University of California? 17 A You must, of course, fill out the forty-page 18 application, like anyone else. 19 Q Forty pages? 20 A Forty pages. 21 THE COURT: Forty pages? 22 THE WITNESS: It's very complex. Let me put it this 23 way: Even the Board of Regents wonders how anybody is able 24 to fill out the application. 25 But put simply, you have to apply, and you're 144 1 allowed to apply to three campuses, and you must essentially 2 put forward the paper work for application. 3 BY MR. WASHINGTON: 4 Q And of the campuses of the University of California, 5 is there any differentiation between them in terms of the 6 educational programs and quality and so forth that they 7 offer? 8 A Many colleagues -- of course, I taught at three of 9 them, at Santa Barbara and Santa Cruz and at Berkley, and 10 I can only say that amongst the students and families 11 of California, there are very competitive and selective 12 universities. Those three now are Berkley, UCLA and 13 San Diego. And when I mean selective, I mean that very 14 large numbers of students are turned away even after they 15 fill out the application and even though they may be 16 eligible, they are not admitted to those institutions. 17 Q And in addition to being selective, would it be fair 18 to say that the University of California at Berkley and UCLA 19 are world renowned as educational institutions? 20 A Yes, yes, they are. 21 Q And have a number of Nobel Prize winners? 22 A All the indicators, scholarly, publications, 23 citations, the kind of things that us academics worry 24 about, yes. 25 Q And how did -- I still want to stick on the before-209 145 1 period. How did one go about applying to University of 2 California at Berkley or the University of California at 3 Los Angeles? 4 A One could identify three campuses in the application 5 and you would list your preference, one, two, three, and 6 most students would essentially go right on down the line, 7 Berkley, UCLA, San Diego, for preferential or selective 8 activity. 9 Q And what were the criteria for selection prior to 209? 10 A We used race, we used affirmative action as one 11 factor. Keep in mind that the students still needed to be 12 eligible. They met the eligibility requirements, so they 13 were in the top twelve and-a-half percent. 14 In addition to that, they used SAT's and GPA's, in 15 some cases, very formulaic, to determine admissions, so in 16 some campuses up to 75 percent of the class was admitted on 17 a formulaic basis, including indices developed by using high 18 school GPA and SAT scores, SAT1's. 19 Q As used by the selective campuses at the University of 20 California, was there any kind of discriminatory impact 21 caused by the use of the GPA's? 22 A Ask that a different way. I'm not sure I got it. 23 Q What effect did the use of the GPA's have on the 24 eligibility -- or I'm sorry, the admissions -- 25 A Admissions? 146 1 Q -- admissions for Latino and black students in 2 particular? 3 A Then, as today, access to courses first that are 4 college level and acceptable courses at UC are differently 5 distributed amongst high schools. We find Latino students 6 in particular and African American students, as well, are in 7 those high schools where there are less of those courses, so 8 their GPA with regard to those courses could, in fact, be 9 affected because of access to those courses, so both their 10 eligibility and their admissions could be affected. 11 Secondly, the GPA is allowed to float above a 4.0, 12 an A equaling 4.0, because honors courses and AP courses 13 are given up to 4.8 in grade level, so that a student taking 14 many, many AP courses or many honors courses could, in fact, 15 have an inflated -- what we're going to call a floated, 16 floating grade point average. 17 If you happen to be in a school in which there were 18 no AP courses, or had limited access to them, or where there 19 were limited numbers of honors courses, then you -- 20 essentially, GPA could have a tremendous effect in a 21 decision that might be made with regard to your admissions. 22 Q Were the honors courses equally distributed between 23 schools which were white and schools which were Latino and 24 schools which were black? 25 A No. Our empirical work in the early '90's and then 147 1 into the mid '90's indicated that what we called the A to E 2 courses, the required courses, were not distributed equally, 3 honors courses were not distributed equally, nor were AP 4 courses. Honors and AP were significantly not available in 5 those places where we had highly segregated high schools, 6 particularly serving Latino students. 7 THE COURT: California has a similar system, I 8 suspect, as we do, where there are school districts that 9 have certain boundaries and they are independent school 10 districts and taxed independently and run their school 11 districts. 12 THE WITNESS: That's correct, yes. 13 THE COURT: Can I just ask one more question? 14 MR. WASHINGTON: Sure. 15 THE COURT: Are you aware of any state that has a 16 statewide school district where it's run by the state and 17 that the money is distributed equally to all schools and 18 teachers are under the state control and can be transferred 19 to schools where they are needed and that they have the same 20 curriculums, is there any state that does that? 21 THE WITNESS: I'm not aware of that. One of the 22 things I failed to mention is I was a school board member 23 once, and you'll remember many school board members are 24 locally elected and they are not in favor of state systems. 25 THE COURT: Oh, I know that. 148 1 THE WITNESS: No, I do not know. I do not know 2 the system. 3 THE COURT: So each one as it's here has their 4 funding and everything else -- 5 THE WITNESS: And priorities and so forth. 6 THE COURT: -- and has their priorities, and a 7 school board that runs it in the manner they believe is -- 8 THE WITNESS: That's correct. 9 THE COURT: Okay. What do you think of that 10 concept? 11 THE WITNESS: As a school, ex-school board member, I 12 think school -- 13 THE COURT: No, as an educator. 14 THE WITNESS: As an educator, I think you probably 15 need a mix of state and local and federal assistance, so I 16 would argue -- remember, I also worked for the Feds -- so I 17 would think that what we need to do is look at it as all one 18 system rather than local, state or federal, and provide 19 resources as we best can across those different identifiers 20 or barriers or political units. Actually, political units. 21 THE COURT: But also not only resources, but also 22 curriculum, what you're saying to me? 23 THE WITNESS: Yes. 24 THE COURT: I'm also hearing what you're saying 25 to me is that in certain areas, that they don't have the 149 1 curriculum that they need in order to even become eligible? 2 THE WITNESS: That's correct. They don't have the 3 curriculum, right. 4 THE COURT: So if there was a state curriculum, and 5 funding, of course -- 6 THE WITNESS: Yes. 7 THE COURT: -- tell me your position, what you think 8 about being a former school board member, where do you see 9 the local control? 10 THE WITNESS: Sure. I think it's the -- it's having 11 the diversity to implement a set of curriculum that you 12 think is best suited for the students that you serve, but 13 still reaching the standards, the high standards. So this 14 is why we have now state standards in most states, which are 15 informed by national discussions, about what science ought 16 to look like at third grade, but states will adopt those 17 standards. The local district, I think, their job is to 18 move students to those standards. How they do that, I 19 think, is a local decision. 20 THE COURT: So the ideal system, and I'm not -- 21 perhaps it could be a state system that deals with funding, 22 fair funding throughout the whole thing, so everybody at 23 least has some equality of funding, curriculum, and then 24 leading to the standards and -- 25 THE WITNESS: And I would say I would add one more 150 1 thing, because my own work and that of my colleagues would 2 suggest that you need to have people to implement those. 3 You need good teachers. 4 One of the greatest problems we have in these 5 segregated schools serving Latinos is many of the teachers 6 are not trained, so we're using what we call in California 7 emergency credentials, which means they have no training 8 in teaching, and so -- but they have responsibility for 9 instructing students. So you need the professional. 10 THE COURT: You need the professionals? 11 THE WITNESS: The personnel. 12 THE COURT: So if you had those on a state level and 13 then you had the local level where they have the input in 14 terms of that particular -- 15 THE WITNESS: Specifics. 16 THE COURT: -- specifics, what do you think of the 17 concept of teachers maybe being state employees where they 18 can be transferred pretty much like district judges here in 19 the state? You know, we're all not necessarily just in the 20 Federal Court, but the State Court, they're all State 21 employees, and if they need somebody, they just transfer 22 them. You're sitting in, you know, Muskegon next week. 23 THE WITNESS: Right, right. 24 THE COURT: Same thing with teachers, teachers who 25 are perhaps, you know, under state control. 151 1 THE WITNESS: Sure. 2 THE COURT: And therefore, if one district needs 3 extra help on whatever the subject happens to be and they 4 don't have the resources, for lots of reasons, a part of it 5 could be geographics and, you know, and all those things, 6 that the State has the ability to transfer that person, 7 within reason, over there. 8 THE WITNESS: Yeah. 9 THE COURT: Are those kinds of things, you think, 10 workable? 11 THE WITNESS: I don't know if the state system -- 12 just districts certainly have that prerogative now and 13 have trouble doing it. For instance, large districts like 14 Los Angeles, which is huge, 700,000 students, and a large 15 geographical region, has difficulty in transferring these 16 kinds of teachers, because mainly they are professionals and 17 so they will leave if they don't like their job assignment. 18 THE COURT: But if you have a state system, they 19 can't leave unless they leave the state, if they want to 20 continue with their profession. 21 THE WITNESS: Yes. 22 THE COURT: But the real point, I think, part of it 23 is the bidding process? 24 THE WITNESS: It's all that, yeah. It's who you get 25 into the profession, how they are trained. So there are 152 1 certainly alternative ways. 2 And you could make sure, if you don't have the 3 professionals, then get them the kinds of resources they 4 need to become the kind of professional that they need to 5 be, and that's really what most districts are doing now. 6 THE COURT: It's difficult for a single district to 7 do that. 8 THE WITNESS: It is, of course. 9 THE COURT: Especially a single district that 10 doesn't have a lot of resources. 11 THE WITNESS: That's right. No, I agree with you. 12 I agree with you. 13 THE COURT I'm sorry. 14 MR. WASHINGTON: No, that's fine. 15 BY MR. WASHINGTON: 16 Q Dr. Garcia, could you describe for us what the 17 California K through twelve educational system is now? 18 A Right now, you might want to call it a little bit 19 in crisis, and the reason it's in crisis is that so many 20 students are not achieving to the standards that we have 21 identified in California. 22 If you look at our financial investment in 23 California, we have -- in the 1950's to 1960's we were 24 ranked amongst the highest in the United States in 25 investments in education. Now I think we're probably in 153 1 the lowest decile in terms of investments in education, 2 and that's expenditures per student. 3 So if you look at our educational system, we have 4 essentially not invested in it, and it has shown in the 5 number of students, and it has -- it has gone from, in about 6 twenty years, from about two and-a-half million to five 7 million, so it's doubled in that period of time. 8 We have not kept up with the kinds of resources, 9 and most importantly, it is a very -- a system that's in 10 equilibrium; that is, some schools are very, very good, 11 and some schools are very, very not good, and we have the 12 continuum. 13 Relevant to the situation that we're discussing here 14 is that many of the schools that fall in that lower decile 15 or quintile in terms of resources, achievement, et cetera, 16 are also highly segregated with Latino and African American 17 students, and are also underresourced in terms of 18 expenditures per student. 19 Q You have mentioned some of the things that it means to 20 be underresourced. Can you tell me more about what that 21 means? 22 A Sure. I think the most critical one is the one I 23 raised earlier, and that is, do you have the right personnel 24 that is, in fact, engaged in the instruction of students, 25 and until we change the way schools are organized, teachers 154 1 are the most critical element in the education of a student, 2 particularly in the public sector, and particularly for 3 poor kids, and Latino kids, the population I have studied 4 extensively. The teacher makes a difference. 5 So when I say underresourced, in many cases I don't 6 necessarily mean the amount of dollars, I'm really talking 7 about the kind of individuals. In our schools in California 8 it is not unusual for a student, a third grader, for 9 instance, who is Latino, about 50 percent of those kids will 10 have a teacher who is not credentialed, has not been trained 11 as a teacher, and is in almost every term unqualified to be 12 in the classroom. 13 In addition to that, of course, is the opportunities 14 for curriculum in our schools. It's very likely that that 15 same third grade Latino student will not have access to the 16 kind of curriculum that they need, textbooks, the kinds of 17 science laboratories, kinds of experiences that are provided 18 in some of the better schools. 19 I think lastly, I would say it is the overall tenor 20 of the place where the school is that usually, and in very 21 impoverished locales, urban sectors or rural sectors, 22 for Latinos, tend to be economically depressed, high in 23 unemployment rates, high in incarceration rates, and all 24 these things, I think, would characterize the environment 25 of a Latino student in California. 155 1 Q And if you know, what is the graduation rate for 2 Latino students in California, high school graduation rate? 3 A We have now -- depending on how you measure it, but 4 if you look at it longitudinally over a period of time that 5 the student is actually in school, we're probably losing 6 about 40 percent of students who begin in the K through 7 twelve sector, but never finish, so we're completing about 8 60 percent of Latino students. 9 Q Now, Dr. Garcia, could you describe for a moment the 10 situation for black students in the State of California and 11 K through twelve? 12 A Very similar picture. Highly segregated schools, 13 similar kinds of neighborhoods. In some cases, where 14 the neighborhoods are transitioning from highly black 15 concentrated populations to Latino populations coming in, 16 Oakland is a good example, right close to Berkley, but 17 in any case, you have similar kind of community and 18 socioeconomic circumstances, along with the highly 19 segregated situation. 20 Q Do you -- would it be fair to characterize the 21 California K through twelve system, in general, as separate 22 and unequal systems? 23 A I think many people have characterized it that way. 24 I would at least be willing to do so, yes. 25 THE COURT: Is this a good segue to lunch? 156 1 MR. WASHINGTON: That would be fine, yes. 2 THE COURT: We will stand in recess until 2:15. 3 (Luncheon recess taken at 1:00 p.m.) 4 -- --- -- 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 157 1 - Afternoon Session 2 (At or about 2:30 p.m.) 3 -- --- -- 4 THE COURT: Just a couple of housekeeping matters. 5 Monday, whoever is coordinating the students coming down, 6 since we have -- we won't have as quite as many seats in the 7 courtroom because we have arrangements with a lot of schools 8 and tomorrow -- Monday -- we're just getting our schedule 9 together, and we have a high school that's coming down. 10 Generally they bring a class, a government class. I'm not 11 sure how many students. Maybe thirty, forty students. So, 12 they've been scheduled since the beginning of the year so 13 we're going to have -- whatever they need reserved for them on 14 Monday. So, I don't know who coordinates -- 15 MS. DRIVER: Judge Friedman, will they be here all 16 day on Monday; do you know? 17 THE COURT: I'm trying to think of what high school. 18 Some stay the whole day, and they bring their lunch and eat it 19 upstairs in the jury room. Others -- I think this high school 20 -- I think just stays half day. 21 MS. DRIVER: Okay. 22 THE COURT: So they will only be here a half of day. 23 I'm almost sure -- I'm going to have my clerk call later, but 24 I'm almost sure this is the high school that only stays a half 25 day. BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 158 1 MS. DRIVER: Right. Okay. 2 THE COURT: And then we'll talk about -- tomorrow, 3 we'll talk about Tuesday. Tuesday is the day I should pick 4 that jury. And also is -- Judge Keith has a Soul Food 5 Luncheon in honor of Black History Month. And also has an 6 awards banquet that he does on this floor. It's a great time. 7 But I have to talk to him. I haven't had a chance to get over 8 there and talk to him because, again, it will interfere with 9 students because they pretty much use the whole floor. We can 10 still continue our trial, but I want to talk to him because 11 maybe we'll do it -- let me just talk to him because -- it may 12 be disruptive because, as I say, he gives out awards. There 13 are people all over the floor, and so forth. Maybe we can get 14 him to invite all the attorneys in this case. We can all go 15 to the same thing and be there together. So, I'll talk to him 16 in just a bit, when we take a break, or on my way -- maybe 17 I'll call him tonight. I'll let you know about that tomorrow. 18 Okay, with that said, you may continue. 19 MR. WASHINGTON: Judge, just one other housekeeping 20 matter. We have Professor Foner here as a witness and he does 21 have to go back to New York today. 22 THE COURT: Feel free to put him on and we can -- if 23 the Dean doesn't mind -- 24 MR. WASHINGTON: Well, we would like to continue 25 with the Dean. I'm just wondering if we can go a little past BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 159 1 five if that were necessary. 2 THE COURT: A little bit. I can't -- again, I 3 didn't make plans tonight. I've made plans tonight. I didn't 4 make plans to work late tonight so. We can go a little bit, 5 but not too much tonight. Sorry, but I have made plans. 6 MR. WASHINGTON: Okay. Can I have just one second? 7 THE COURT: Generally, I would say, you know, I'm 8 always open to go into the evenings. As I've told you, my 9 wife works late. But if I don't know a little bit in advance 10 I -- I made some plans. 11 MR. WASHINGTON: Okay. Why don't I proceed with the 12 exam of Dr. Garcia, and if there's a place like we're running 13 into a time problem, we might have to suspend -- 14 THE COURT: As I say, generally I would work as late 15 as I have to, but it's another one of those crazy nights I'd 16 figured we wouldn't work late, and -- 17 MR. WASHINGTON: I understand. How much is a little 18 bit, by the way? 19 THE COURT: Not too much, really. Usually, I'm 20 begging to work late because my wife doesn't -- as I've told 21 you all at the beginning of the trial, she doesn't get home 22 until after seven. She works her last appointment at six, and 23 she gets home sometime after seven. So I love working late 24 because I have nothing to do. But tonight, I've made plans. 25 MR. WASHINGTON: Okay. BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 160 1 DIRECT EXAMINATION (CONTINUING): 2 BY MR. WASHINGTON: 3 Q Dean Garcia, one other question on the characteristics of 4 the Latino K through 12 population in California, can you say 5 something about the language status and the recently of arrival 6 of that group of students? 7 A Much like the nation of California has essentially seen a 8 large growth in immigrant students in its schools and immigrant 9 families in its communities, about sixty percent now of the 10 Latino population in California is first generation immigrant. 11 That's defined by us as individuals who themselves were born 12 outside of the country or whose parents were born outside the 13 country. So that is how we define first-generation immigrant 14 individual. 15 In addition to that, most of those students, Latino 16 students, speak a language in their home that is Spanish. And 17 most the recent data we have from the K-12 sector indicates 18 that's about twenty-five percent of the student, total student 19 population of California. Most Latinos it's close to about 20 fifty to sixty percent of Latino students in the K-12 sector. 21 Q So twenty-five percent of the total students in 22 California public schools speak a language other than English 23 in their homes? 24 A Approximately 1.5 million students in the K-12 system. 25 Q Let me return then to Berkeley in the pre 209 days or BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 161 1 actually UC system. You had mentioned that there was the use 2 of grade point averages as one of the ways of selecting among 3 that group of people who were eligible for admission, who it 4 was who was going to be able to go to UC. What was the other 5 criteria on the normal admissions system? 6 A Typically the use of the SAT ones and SAT twos and threes 7 required all three examination types. And then, of course, the 8 full transcripts and essays were considered in the admissions 9 process. 10 Q Let me go to the SAT test. You indicated earlier that 11 you had done studying of that test. 12 A Yes, we were -- as chair of the system-wide regents 13 appointed Latino Eligibility Task Force in California which 14 began its work in about 1992, we looked at a set of factors 15 that were diminishing the participation of Latino students in 16 the University of California. One of our work groups worked 17 very specifically ata the use of standardized testing 18 nationally and more specifically the use of the SAT test in 19 California typically as it was used in the admissions process 20 as well as in the eligibility identification. 21 Q And what kind of conclusions did you draw from that 22 investigation? 23 A In 1997, we recommended as one of the final 24 recommendations of that task force that the university 25 reconsider the use of the SAT and look for alternative BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 162 1 assessments that might, in fact, still provide some indication 2 of academic proficiency of students and, therefore, could be 3 used to identify whether those students could be successful in 4 the University of California. 5 We based that recommendation very directly on a 6 study of retention and graduation at the University of 7 California, specifically, although, we did use national data 8 as well. We found very directly that the entering freshmen 9 GPA, SAT indices was not a predictor of graduation rates for 10 minority students, particularly Latino students, admitted pre 11 209. So in a nutshell when you look at retention and 12 graduation rates across the University of California, and even 13 at the most selected institutions, the ones we've been talking 14 about, Berkeley, UCLA, and San Diego, we found no difference 15 in completion rates -- retention rates or graduation rates for 16 African-Americans, Latinos and White and Asian students based 17 on their SAT and GPA cumulative index. 18 Q So there was not a correlation between said index and 19 their graduation-retention rates and so forth in the whole UC 20 system? 21 A In the whole UC system, nor as the most selective 22 institutions. 23 What this essentially told us is that the SAT may 24 predict some things, but it didn't do what the University of 25 California intended it to do and, that is, to identify not the BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 163 1 most rewarding students, but those that would benefit from the 2 curriculum that was offered at the University of California. 3 Challenging curriculum, challenging a set of standards for 4 graduation. So that the logic of using the SAT as a selected 5 factor was that it would allow us to select from those who 6 could succeed in versus those who would not succeed in a 7 University of California intellectual climate. And we found 8 that was not correct. 9 Q What discriminatory impact, if any, did it have on either 10 Latino or Black applicants to the University of California? 11 A It had two general effects, and we documented both of 12 these. One is that it precluded admissions at the most 13 competitive or selective institutions, at Berkeley, UCLA, and 14 San Diego at which time during -- even until most recently 15 again indices of SAT one scores and GPA are used to make fifty 16 percent and up to seventy-five percent of the admissions 17 decisions. So that if your SAT score was low, if you came from 18 a school that didn't have the honors courses or whatever, it 19 would just exacerbate the discriminatory decision-making 20 process at these select universities. 21 The other effect found is that many of the students 22 wouldn't apply to any of the universities that they have to 23 take the SAT scores. Keep in mind that many Latino students 24 have begun school speaking a language other than English. They 25 knew as we did that English is a very important aspect of the BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 164 1 SAT or any standardized achievement measure developed in the 2 United States. That is, these tests not only measure what 3 they're intended to measure, content and other material, they 4 measure how you understand the test. 5 Latino students in general are scoring at lower -- 6 combining lower scores on -- particularly the verbal aspect of 7 the SAT. And many of the students who take the SAT also take 8 prep courses for the SAT. It's sort of common. It's common 9 all in California. It's common across the country. Parents 10 are very knowledgeable about this, make sure their kids take 11 the prep SAT -- 12 Q Those run -- 13 A Those run anywhere between two hundred and fifty dollars 14 up to a thousand dollars depending on the detail of the course. 15 Q Let me stop you for one second -- 16 A Sure. 17 Q -- there on prep courses. We've heard I suppose 18 testimony and on the other hand questions which suggest that 19 test prep courses did not work. You're the Dean of the School 20 of Education at one of the finest universities in the United 21 States, do they work? 22 A They work. I've made sure my daughters took the SAT prep 23 courses, and their scores went up about fifteen percent. 24 Q And -- let me go back then to question of the test 25 themselves. What -- leave aside the prep courses and so forth, BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 165 1 what about the tests in particular was causing a discriminatory 2 impact on Latino students and on Black students? 3 A Well, we felt -- and I'll speak to what we did and then 4 what our other colleagues have done. The nature of the test 5 itself, the items is problematic, particularly the analogy 6 section of the SAT one. If you take the SAT one, there's a lot 7 of analogies. Well, that means you have to know a lot of 8 vocabulary. So that means the better you are at what we call 9 academic English, the more likely they're doing well on any 10 kind of verbal test that requires you to know English very 11 well. 12 By "academic English" I mean the kind of English 13 that's used in schools, not the kind we use outside on the 14 street, or use to negotiate every day living, but the kinds of 15 vocabulary, the ways you form grammar, the discourse of the 16 academic domain. Science has its own. Even social science 17 has its own. And the law definitely has its own set of 18 vocabulary, the way to talk to each other. 19 The more you're in school, particularly exposed to 20 academic English, the more likely you'll also do well on 21 verbal portions of the test. And even the math, it's highly 22 verbal in the SAT. So in any case what we essentially 23 speculated and we now know empirically from a number of 24 studies that individuals whose English is second language are 25 not going to do as well on those tests primarily because of BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 166 1 the English academic language load of those tests. 2 An English-speaking student exposed probably in the 3 middle class, upper-middle class honed to academic English, to 4 defending your position, to arguing, to developing vocabulary, 5 to visiting museums, you name it, those individuals are more 6 likely to do better on a test that's heavily loaded in 7 academic English. 8 So Latino students, as I indicated previously, many 9 of them come to school as speakers of Spanish, and their 10 parents are very likely not to have had the experience in the 11 US schools. And if they had the experience US they haven't 12 graduated and on to college to pick up that academic English. 13 So that we felt and the data seemed to confirm this that it is 14 at least partially a language load, an English language load 15 on those tests that discriminates. 16 The other, of course, is the broader issue of 17 schooling opportunities. The access of -- 18 THE COURT: Let me stop you for one second. The 19 academic English, is there a solution to that? 20 THE WITNESS: It's a hard solution because if you 21 have the right kind of curriculum -- go back again to -- 22 THE COURT: I'm talking about testing. Is there 23 testing -- I know to go back in certain things, educationally 24 we could probably do it, but is there a testing way of doing 25 it? I mean, as you've studied this -- I would suspect that BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 167 1 you used academic English, but if you didn't use academic 2 English then everybody would be on the same footing -- 3 THE WITNESS: California has been one thing and the 4 -- at the national level, during my time in Washington, we did 5 another with NAEP, National Assessment of Educational 6 Progress. We tried to limit the language load of an 7 assessment. 8 If you're going to assess mathematics, then be 9 careful that the items that you choose are not culturally or 10 linguistically biased so you can run, you know, actually run 11 empirical samples. You can see, well, let's try it with these 12 kids. Let's find out. We can change the item. So 13 psychometrically can you solve that problem? Yes. 14 The one problem with the SAT in solving it at that 15 level is that you do want to get a predictor of someone who 16 can do well in a high-loaded academic English environment, 17 that is, the university -- 18 THE COURT: If it -- 19 THE WITNESS: If it predicts, if it predicts. 20 THE COURT: There are those that say it doesn't 21 predict. 22 THE WITNESS: That's right. And, so, the thing you 23 can do is try to look at that as only one small indicator, and 24 use other kind of measures. You can take a look at the essay, 25 how did the student write. You can get -- you look at other BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 168 1 kinds of reports that the students produces. That gives you 2 evidence -- 3 THE COURT: But even testing, since California has 4 this system where everyone has some entitlement to go to 5 college, they could have their own system of even testing if 6 they wanted to without using the national test because -- 7 THE WITNESS: Sure, and we're considering that. 8 That's one of the things that we're considering is having -- 9 in fact, we have a development the Golden Gate Examination 10 which is our own test based on our own standards, and we could 11 very well likely use it. 12 THE COURT: And then you could even eliminate the 13 GPA because at that point the test could be theoretically at 14 least incorporate all of the -- 15 THE WITNESS: We're actually headed the other way, 16 is that we're -- a test is one snapshot of the ability for 17 achievement. What we would like a more comprehensive picture, 18 a video, if you would like, of what students have done and can 19 actually do. So we're looking at a much more comprehensive 20 evaluation much like the select private institutions, too. 21 They look at a student, case-by-case. They look at 22 standardized test scores. They look at a number of things. 23 THE COURT: As a tool -- 24 THE WITNESS: But they're one of many indicators. 25 So, we're trying to move away from this formula, test score, BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 169 1 GPA, or just GPA alone, looking at a multiple set of 2 indicators. 3 THE COURT: From what I've heard today, California 4 is the ideal place to do it because of the entitlement. 5 THE WITNESS: I agree, a hundred percent. 6 THE COURT: I'm sorry. Go ahead. 7 MR. WASHINGTON: No problem. 8 BY MR. WASHINGTON: 9 Q Dr. Garcia, just before we leave the SAT, you mentioned 10 that proficiency in academic English as being very important 11 for success on that test. What relevance, if any, does that 12 have to the Black population in either California or 13 nationally? 14 A Well, we do know that about sixty percent of 15 African-Americans speak a language identified often as Black 16 English. And we know from a linguistic analysis, that's my 17 part as a psycholinguist, that it has all the appropriate 18 indicators that it really is a language, but it has -- people 19 do talk it. They make sense out of it. It has its rules. 20 It's governed by a set of rules and understandings. However, 21 those students then go into a English environment in schools in 22 which the goal is to produce standard English. And that's true 23 for all students. So it's very likely there in a high and a 24 verbal English, academic English loaded exam that we have that 25 same problem. BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 170 1 We haven't done the kind of research on that 2 question that we've done with Latino students because clearly 3 Spanish is not English, and access to Spanish in lots of 4 different interactions, in the home, in the community, is 5 substantive before the students enter the schooling system. 6 Q What relevance, if any, does it have to a student's score 7 on an SAT if his or her parents were trained in academic 8 English? 9 A It's a tremendous advantage, and it's the kind of 10 advantage that one doesn't really realize unless one does 11 linguist or psycholinguist observations of what's going on 12 middle class, upper middle class educated homes where there are 13 discussions, there's developed vocabulary. There are a whole 14 set of interactions that build this academic English. 15 Q And would it be fair to say then that the SAT test is a 16 system that disadvantages both Latino and Black students and 17 advantages White students? 18 A At the present time that's the case, yes. 19 Q The LSAT test, what is its relation to what you call 20 academic English? 21 A The LSAT and I'm not all that familiar with it, I've 22 certainly looked at the exam is, again, a highly loaded verbal 23 test. There are a set of requirements one needs to have in 24 terms of vocabulary in ways in which a schooling English is 25 used to assess academic proficiency. BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 171 1 Q Okay. Now, Dr. Garcia, are you familiar with something 2 called "stereotype threat"? 3 THE COURT: Let me stop you for one more second. 4 This is with your school board hat on. I meant to ask you 5 before and I forgot. The prep ACTs, and LSATs -- ACTS we're 6 really talking about now, does any school district provide 7 prep courses for their students? 8 THE WITNESS: California is now providing prep 9 courses for their students. 10 THE COURT: Those who can't afford it can still get 11 a course that's quality -- 12 THE WITNESS: It depends -- they don't have it now 13 for everyone, but there are now school districts who are 14 providing with state assistance. This has just passed last 15 year. So this is the first year in which districts do have an 16 allocation from the state to provide PSAT, and SAT prep 17 courses for students. 18 THE COURT: So that it's in the process of being 19 implemented? 20 THE WITNESS: It's in the process of being 21 implemented, right. 22 THE COURT: Somewhere down the line, everybody will 23 have an opportunity if they want to. 24 THE WITNESS: It depends on the state budget, as 25 everything else -- BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 172 1 THE COURT: Assuming there's money. But I mean if 2 that's a priority of the state, it can happen. 3 THE WITNESS: And let me tell you why is that again 4 we have seen the drop, dramatic drop in under-represented 5 minority students at the UC campuses. And, of course, one way 6 to do outreach and to help prepare those students is the PSAT 7 and SAT tests. 8 We have not seen any -- we don't know what the 9 results of that will be. 10 THE COURT: But you're a firm believer that it's 11 going to help somewhat. 12 THE WITNESS: The problem with the ten to fifteen 13 percent increase is that you've got to have the base in order 14 to get that. I mean, you get ten to fifteen percent increase 15 and learning the grammar of the test, learning how to take the 16 test, it doesn't -- those courses don't teach you how to do 17 algebra and calculus. 18 THE COURT: Okay. Thanks. 19 BY MR. WASHINGTON: 20 Q Dr. Garcia, I want to come back the post affirmative 21 action era and what works and what doesn't. But first, if you 22 would, could you describe for us before the passage of the SP 23 201 and Proposition 209, what was the affirmative action 24 program at the University of California? 25 A The affirmative action program, first of all, did not BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 173 1 accept students who were not eligible. So that there is a 2 mechanism in the University of California that allows accepting 3 students that are not eligible. Remember earlier I described 4 eligibility. And that's usually left for athletes and tuba 5 players or special individuals who did not meet that 6 requirement. 7 The affirmative action process in the University of 8 California first required admitting students that were 9 eligible -- 10 Q Before you leave that -- admitting people who are not 11 eligible, how big a category was that? 12 A Five percent. Campuses are allowed to admit five percent 13 of their student -- freshmen entering class that do not meet 14 the eligibility requirements. 15 Q Okay. Now, the affirmative action program, if you could 16 describe that for us. 17 A The affirmative action program essentially allowed 18 campuses to use race, ethnicity, gender as one of several 19 variables in determining admissions. So there was never any of 20 decision made on the basis of a student not being eligible and 21 being of a certain race or a certain gender or a certain 22 ethnicity. The idea was to provide a more comprehensive 23 overview of a student including race and gender, and ethnicity 24 of the student, along with all the other indicators. 25 Q Now you painted a particularly distressing picture of the BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 174 1 schools of California, the secondary schools, were there Black 2 and Latino students in those schools who were eligible to go to 3 the University of California, Berkeley, UCLA, and so forth 4 under the affirmative action plan? 5 A Yes, there were. And we were able during the pre 209 6 period to accept students who were eligible, but came from some 7 of those same schools. And were able to show over time since 8 the -- the mid 1970s increases, significant increases using 9 affirmative action. 10 Q Can you give me some description of those kinds of 11 students you would find in the schools? 12 A Sure. Very likely, they're the kind of student that may 13 have a 3.5 GPA at an inner-city high school, a school that I'm 14 most familiar with is Mission High School. It's in the mission 15 district of San Francisco. Those students may be doing very 16 well under high challenging circumstances but is, again, I know 17 their science program, they have one science teacher in the 18 whole school that's a credential science teacher. The rest are 19 emergency credential science teachers. Their labs are not the 20 best. But even so, students were doing very well. 21 The presence of honor courses or AP courses, almost 22 minimal in a high school like that. But those students, in 23 fact, in that circumstance essentially were doing fairly well. 24 They were getting 3.5 GPAs, and quite frankly their SATs might 25 be not so high. Much like mine. Many of them were BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 175 1 immigrants, first generation immigrants. And so we were able 2 to admit students into a place like Berkeley considering those 3 aspects of their characteristics along with where they came 4 from, their school and their GPA. 5 Q When you looked at those students, did you look at their 6 race or their national background? 7 A We did consider that in the admissions process, pre 209. 8 Q Why did you do that? 9 A We felt it was an important way to meet the goals of the 10 University of California, that is, to have a diverse student 11 body, to meet and serve children of the state of California. We 12 felt also that having a diverse class in the University of 13 California, an integrated class, was important. So that's why 14 we used those measures. 15 Q Okay. What was there about the question of race and 16 educational opportunity that made you look at the question of 17 race? 18 A First of all, we understood very much that the 19 opportunity was distributed differentially across the state 20 based on race and ethnicity, particularly with 21 African-Americans, Latinos and American Indian students. And 22 we were attempting to be sure to take the very best students 23 that were doing well under the conditions which they were being 24 educated. 25 We also had the data to indicate that those students BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 176 1 once given the opportunity in the University of California and 2 we had the data at Berkeley that those students admitted with 3 lower GPAs and lower SAT scores could still thrive, could 4 still succeed at a place like Berkeley, and they did. So 5 weren't -- we understood using race and ethnicity we were able 6 to select a group of students that made our campus diversed, 7 met the goals of the university, and did not place the campus 8 in jeopardy of having lots of bad students who weren't 9 successful, and quite directly hurting the students themselves 10 because they would come and fail. We understood that that 11 could be done. 12 Q Let me ask you one -- you mentioned data, in terms of the 13 students admitted at the University of California at Berkeley 14 under the affirmative action plan, in the years before it was 15 abandoned, how did they do in terms of graduation? 16 A They differed a little on -- different from any other 17 students. The one thing that they -- that we did learn is that 18 they might take longer. Berkeley's average time to graduation 19 now is between four and a half to five years. It's not four 20 years. And Latino students and African American students 21 finish at about the same rate at five to five and a half years. 22 So it took them a little longer, but they finished, graduated, 23 and were in school. 24 Q Was that because people were dropping out for one reason 25 or another and then coming back, or taking lesser course load BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 177 1 or -- 2 A Our Latino eligibility study did a survey and focus 3 groups with some of those students, and we found the economic 4 conditions of their families were more than likely the primary 5 reason for them moving in and out of the system. 6 What we found was that many of these students would 7 go back home for a semester to help the family, and save 8 enough money to come back into the UC. But, again, they 9 finished. We found the economic factor to be the main driver 10 for taking longer. 11 Q You say the difference in graduations was a little, do 12 you happen to remember what that was? 13 A Yeah, I think the overall graduation in five and a half 14 years to six years is right around eighty-six percent. For 15 Latinos it was seventy-nine percent. 16 Q Do you happen to remember the figure for 17 African-Americans? 18 A African-Americans was a probably a little lower. It's 19 about seventy-six - seventy-eight percent. It's in my report. 20 Q Seventy-six to seventy-eight percent, around eighty 21 percent graduation, those students who graduated and were 22 admitted under your affirmative action plan, would they have 23 had a chance of being admitted to the University of California 24 in a so-called race neutral system? 25 A Well, we know that about fifty percent of them would not BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 178 1 given the empirical data of what's happened after 209. 2 We've done some focus groups with students who are 3 at the University of California now or were there. They may 4 have graduated recently that were admitted pre 209. And the 5 one thing they said, they told us under the present 6 circumstances I would not be admitted, and my brothers and my 7 sisters will not be admitted to Berkeley on the basis of the 8 present system as it's operating. 9 Q Sir, when was 209 passed and become effective in the 10 state of California? 11 A It was passed in 1995, and became effective a year later, 12 1996-'97. 13 Q Do you have in front of you what's been marked for 14 identification as Exhibit 214? 15 A Yes, I do. 16 Q This is academic print here I think, or maybe it's legal 17 print, I don't know. 18 If we can just go while affirmative action was still 19 being used at the University of California at Berkeley in 20 2005, can you just read for us the number of African-American, 21 American Indian, and Chicano students respectively who were 22 admitted in 1995? 23 A At Berkeley? 24 Q Yes. 25 A Yeah, we had a over a thousand Latinos; one hundred and BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 179 1 twenty-nine African-Americans admitted in the freshman class of 2 1999 -- 3 Q Hang on. You're reading applications. 4 A Oh, I'm sorry. I'm looking at African-Americans at five 5 hundred and sixty-six. Those are admissions. For American 6 Indians, a hundred and eighteen. And Chicano, one thousand one 7 hundred and twenty-eight. 8 Q Let me just stay on that last figure. As I heard your 9 testimony there are a hundred thousand graduates, Latino 10 graduates in the state of California every year and even with 11 affirmative action you were admitting about eleven hundred 12 Latino students. 13 A Well, just to be correct, in 1995, there were about 14 eighty thousand. 15 Q About eighty thousand, okay. It's gone up twenty 16 thousand in that five-year period? 17 A Twenty thousand now. 18 Q Okay. And further over on the enrollment figures, as I 19 look at in 1995, at the University of California at Berkeley 20 there were two hundred and two Black students; fifty-eight 21 Latino students; and about four hundred Chicano students who 22 actually were able to come. 23 A Who actually showed up. 24 Q When 209 went into effect, what effect, if any, did that 25 have on the admission of under-represented minorities in the BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 180 1 University of California? 2 A In the University California there were two effects that 3 we can -- sort of major effects, there may have been many 4 others, but in terms of numerical effects on the entering 5 freshman class, at the three selected universities we saw 6 tremendous decreases in the number of applications, enrollments 7 and eventually admissions, people showed up. So we lost since 8 the implementation of 209 at places at Berkeley, UCLA and San 9 Diego, anywhere between thirty to fifty percent of Chicano and 10 Latino and African-American. So it is a tremendous decrease. 11 What's frustrating is that we were making gains up 12 until that time. So we were increasing enrollments of these 13 individuals by about one to two percent on each of these 14 campuses per year. So projecting that out over the five years 15 we've had a minus -- even a further negative loss because we 16 haven't been gaining, we've been losing. So we have been -- 17 we were making very small but important gains and now have 18 tremendous losses. 19 Q Let me direct your attention to Exhibit 213. Let me just 20 ask you to go down the list here. University of California at 21 Los Angeles after the passage of 209 what percent dropped of 22 under-represented minority students was there -- let's take 23 UCLA and Berkeley? 24 A Again, forty-two to forty-five percent drop on those two 25 campuses.3. BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 181 1 Q And as I understand it that was at the same time that the 2 number of Latino high school graduates had gone up by 3 twenty-five percent. 4 A Twenty-five percent. These are students who are actually 5 succeeding in high school. These are -- we're still, as you 6 might recall, indicated we have a forty percent drop out rate. 7 We had an increase in high school graduates. These kids are 8 the ones who are staying in school and graduating at greater 9 numbers, and we're going the other way. That's why it's so 10 frustrating in California to have the demographic realities of 11 increases in population of even more successful students, while 12 at the same time, decreases in UC participation. 13 Q Now, just looking down I see at San Diego, Urbine, and 14 Davis there's about eleven to fourteen percent drop. Santa 15 Barbara, about ten percent drop. It looks like there's an 16 increase in under-represented minority students at Santa Cruise 17 and Riverside, including Riverside by about eighty-seven 18 percent. 19 A Right. 20 Q What can you tell us about that? 21 A These two campuses are the least selective campuses. 22 Selectivity is defined for us as the racial of students who 23 applied as opposed to those students who are actually admitted 24 so that at Santa Cruise and Riverside, until recently it may 25 change this year, we're not sending away anyone who actually BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 182 1 applied to those campuses. 2 In addition, those students who might have listed 3 Los Angeles or Berkeley as their first choice and Santa Cruise 4 as the third choice would end up in Santa Cruise. So that what 5 we have here is a redistribution of students in the UC system. 6 And, of course, this will soon come to an end. We're going to 7 run out -- Santa Barbara as you can see is ten percent last 8 year, has become very selective now. Now, they're also 9 turning away very large numbers of students who are eligible. 10 And so the only place those students can go are Santa Cruise 11 and Riverside. 12 In the next few years, we anticipate that Santa 13 Cruise and Riverside will be turning away students who are 14 eligible and, therefore, they will be turning away more 15 under-represented minorities who are eligible. So the master 16 plan guarantee will essentially be gone for those students. 17 Q When you say "we anticipate that Santa Cruise and 18 Riverside will be turning away students" who is the "we" on 19 that? 20 A Santa Cruise and Riverside in a recent conference we had 21 in December in -- put together by the Office of the President 22 we were given projections that these institutions if they in 23 this way will soon also become selective. To this point they 24 have not. They've accepted all students who are eligible. 25 Q So you would a population growth in California and more BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 183 1 people applying to the Santa Cruise and Riverside without 2 affirmative action. 3 A Right. 4 Q What does that mean? 5 A That means less students that less students throughout 6 the system and less students there. It can't continue to do 7 this. It can't continue to redistribute, redistribute those 8 students. It won't happen for very long. 9 Q Just looking at Exhibit 213, would it be fair to say that 10 the effect of 209 so far has been to move under-represented 11 minority students out of those two world renowned universities 12 and move them down really into San Cruise and Riverside? 13 A Yes, you also see we've got a decrease in the whole 14 system. So at a time when the system was actually increasing 15 we've actually stayed -- we've actually fallen behind. Many of 16 those students in at least interviews at Berkeley of students 17 who don't come now, who are admitted to Berkeley, are 18 essentially going to the privates, or going somewhere else but 19 not to the UC. 20 Also our application rates have been very low so 21 we're also losing what I would call the hope of the 22 opportunity to attend, why even apply? 23 Q And as I understand it this is a snapshot over the first 24 five years but over the next five or ten years you would 25 anticipate even the Santa Cruises and the Riversides we would BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 184 1 be seeing people being moved out? 2 A They will need to become selective, and they will -- if 3 using the same procedures we use now, GPA and SAT scores, where 4 these students do not do well, they will -- even though they're 5 eligible, their eligible, they meet the requirements, then they 6 also will be turned away. 7 Q Doctor Garcia, I want to ask you a few more questions and 8 then we may have to talk about order, your Honor, of witnesses, 9 but what effect, if any, has there been in the state college 10 system. You mentioned that as underneath the UC system. 11 A Right. In the state college system, we believe at least 12 many of the students are also removing themselves from the UC 13 and moving to CSUs, at least under-represented students. Now, 14 it's important to note in the last three years that three CSUs 15 have also become highly selective, they are turning students 16 away as well. So San Diego State and two others have -- began 17 to turn away students where as before any student who met the 18 eligibility requirement would automatically be admitted. 19 They're moving to a more regional pattern of admitting students 20 to try to get away from the -- essentially the selectivity. 21 Q Okay. Doctor Garcia, I want to direct your attention to 22 -- back to Exhibit 214. Again, let's stick with Berkeley. I 23 just want to put some numbers on this. I'd like to see right 24 now -- at least at the time this was printed you did not have 25 the enrollment data for 2000? BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 185 1 A Right. 2 Q So we're really looking at the first four years here. 3 African-American students there were two hundred and two at 4 Berkeley in 1995, a hundred and twenty-two now? 5 A Correct. 6 Q And skip -- American Indians students, there were 7 fifty-six and now as I understand it the whole University of 8 California Berkeley there are twenty-one American Indian 9 students? 10 A Twenty-one students in the freshman entering class. 11 Q Freshman class. 12 Chicano students it looks -- there were four hundred 13 and one, and it's dropped to two hundred and nineteen? 14 A That's correct. 15 Q Am I to understand then that at the University of 16 California at Berkeley with a hundred thousand Latino students 17 graduating from high school in the year 1999, there were 18 exactly two hundred and nineteen who made it to the University 19 of California Berkeley? 20 A That's correct. 21 Q Just one other question and -- a couple of questions and 22 then we should take -- talk about order, Judge. 23 Dean Garcia, I assume you are extremely -- 24 personally, are extremely disturbed about this fall in 25 numbers. BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 186 1 A Probably the best way to put it is frustrated. We have 2 this demographic reality. There is a substantive commitment on 3 the part of the University of California, and I believe the 4 citizens of California to have a diversed student body in the 5 University of California. I think the Board of Regents did 6 pass SP1 but they also passed SP2 which was that the University 7 of California will, in fact, be diversed. So what we have is a 8 situation which we have tried as best we can to move the 9 university in a partnership mode to help assist the K-12 10 sector, but recognizing the tremendous challenges that students 11 have in the K-12 sector, and in moving that sector in ways that 12 will enhance achievement of those students and therefore, their 13 competitiveness in the present process. We are highly 14 frustrated. We do not see light at the end of the tunnel. We 15 continue to perceive that there will be more decreases, not 16 only at Berkeley but at -- across the system even though we are 17 expanding our outreach activities, our partnership activities, 18 everything we can and acknowledging that it will be quite some 19 time before we have the right prepared teachers, the right 20 curriculum, the right resources, the kinds of resources that 21 are necessary to move students to a competitive level under the 22 present system. 23 Q Would it be fair to say that despite everything you've 24 done and other people have done to reverse this trend, without 25 being able to consider race in admissions and without being BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 187 1 able to use affirmative action in the way we've talked about 2 it, this fall in numbers has occurred and is continuing to 3 occur in the state of California? 4 A I see no way in -- realistically that we can turn this 5 around and it's particularly true at the most selective 6 universities but will soon be the case at the other 7 universities. 8 Q Doctor Gracia, it's been said that the University of 9 California is being resegregated; is that true? 10 A Yes, it is. 11 Q In what way would you say it's becoming resegregated? 12 A Clearly you've seen the increases in the classes, the 13 numbers of under-represented students at the less selective 14 UCs. What we are fearful of is that we will essentially have 15 three to four university, because Urbine has now becoming much 16 like San Diego, so we will have three or four universities that 17 will be primarily White and Asian, and four universities that 18 will be primarily Black and Brown. 19 Q Do you think there's a double standard in the University 20 of California in terms of its admissions system at this point? 21 A I think it's a situation in which we are not making the 22 right decisions with regard to the information we have about 23 students that we know will allow them to be successful at the 24 most selective as well as unselective campuses. 25 Q At the current time persons are being admitted across the BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 188 1 state of California which I think is larger than all but ten 2 counties in the world on the basis of the criteria that favor 3 people who go to white schools -- well, who have parents who 4 speak academic English? 5 A That's correct. 6 Q A system that, in effect, is favoring whites and Asians 7 who getting those students who apply? 8 A Right. 9 Q Would you call that a race neutral system? 10 A It's anything but that. 11 MR. WASHINGTON: Your Honor, I think this is a good 12 place to break. 13 THE COURT: Let me ask a question. If you were to 14 take all of those that are eligible and I don't know the 15 answer, but in order to get at least -- to have a better 16 chance of diversity than you have at the present time and use 17 a random lottery, what do you think would happen? 18 THE WITNESS: We proposed this at one time to the 19 regents. It had no support. I would say that's one 20 alternative, however, and I think I would want to explore how 21 those alternatives are working or aren't working. 22 THE COURT: I just wanted to ask that question 23 before I forgot it. 24 MR. WASHINGTON: Your Honor, what I would like to do 25 now is suspend Dr. Garcia's testimony and call Professor BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 189 1 Foner. 2 THE COURT: If that's fine with everybody. 3 MR. KOLBO: That's fine with us. 4 MR. WASHINGTON: Your Honor, may we take a 5 five-minute break? 6 THE COURT: A true five-minute break. 7 MR. WASHINGTON: Thanks. 8 (Court in recessed, 3:15 p.m.) 9 (Court reconvened, 3:20 p.m.) 10 THE COURT: Okay. You may proceed. 11 MS. MASSIE: We call Professor Eric Foner. 12 THE COURT: Please step up to be sworn. 13 E R I C F O N E R , 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. MASSIE: 18 Q Please state your name and spell your name for the 19 record. 20 A Eric Foner, E-r-i-c F-o-n-e-r. 21 Q Please summarize your higher education for the Court. 22 A Well, I attended Columbia College, B.A. summa cum laude, 23 in 1963. Then I studied at Oriel College, Oxford University 24 from 1963 to 1965. I studied British history and received a 25 B.A. in 1965. I then came back and received my Ph. D. in BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 190 1 American history from Columbia University in 1969. 2 Q What have you done since then? 3 A I am currently the DeWitt Clinton Professor of History at 4 Columbia University. I have been a faculty member in the 5 Columbia Department of History since 1982. Prior to that, I 6 served as a Professor in the Department of History of City 7 College and Graduate Center at City University of New York. I 8 taught there for ten years. 9 Q What is the DeWitt Clinton Professor? 10 A That is the Chair of the American History at Columbia 11 University. I have held the Chair since about 1988, something 12 like that. 13 Q What is the American Historical Association? 14 A Well, it's the Professional Association of American 15 Historians. It has about seventeen thousand members and it 16 represents all professional historians. 17 Q And you are immediate past president? 18 A I was president to the year 2000. I relinquished that 19 position. You serve for one year. I am now the ex-president. 20 Q What is your area of expertise in American History? 21 A I have written widely, but my main area is History of 22 Slavery and Emancipation, Reconstruction period, and race 23 relations in America. 24 Q Tell us about your publications. 25 A Well, there's been a myriad of books. There's "Free BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 191 1 Soil, Free Labor, Free Men: The Ideology of the Republican 2 Party Before the Civil War." It's still in print. It was 3 published in 1970. And actually I'm surprised to know that 4 it's still being used on college campuses. 5 I've published "Tom Paine and Revolutionary 6 America." Another was "America's Black Past: A Reader in 7 Afro-American History." Collective works in that field. 8 I've published a number of books on Black history, 9 and the Reconstruction period. 10 Q Let me stop you for a moment. Have there been a number 11 of books that you have written that have received professional 12 awards? 13 A Yes, there has been. 14 Q I'm not going to ask you to get into them. 15 Have you published widely in peer review journals? 16 A Right. Again, it has been in the area of the Civil War, 17 the Reconstruction period, slavery, the development of slavery, 18 racial issues. 19 Q If you know, has your work been cited by the United 20 States Supreme Court? 21 A Yes, it has been in footnotes of cases relating to the 22 interpretation of the 14th Amendment. My book on 23 "Reconstruction" deals with that in some detail. It involves 24 Civil Rights legislation after the period, after the passage of 25 the 14th Amendment which has been cited by the Supreme Court BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 192 1 case. I have corresponded with justices about some aspects of 2 reconstruction. 3 THE COURT: At least we know they're doing their 4 homework, or maybe he's doing their homework. 5 BY MS. MASSIE: 6 Q Have you served on committees and organizations over the 7 years? 8 A Yes, I have. I should say I also was president of an 9 organization called American Historian Association. It's a an 10 association for professional scholars of history. I have been 11 one of the few scholars that has been elected president of both 12 organizations, and of the American Historical Association. 13 Q Are those elected by membership? 14 A Well, there will be two candidates and you are voted 15 president by the seventeen thousand members. 16 MS. MASSIE: Judge Friedman, I would move that 17 Professor Eric Foner be certified as a race and American 18 History Historian by the Court. 19 THE COURT: Any objection? 20 MR. RICHTER: No, your Honor. 21 BY MS. MASSIE: 22 Q Professor Foner, there's been a fair amount of testimony 23 in this case so far about the fundamental uniqueness of race as 24 a category. I'm going to ask you several questions about that 25 today. I would like to start off and ask you whether or not BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 193 1 Black people and White people in the United States on average 2 have different world views on race. 3 A Well, a short answer is yes, I believe they do. 4 Race has been a dividing line in American society 5 since the settlement of the colonies at the beginning of the 6 17th Century. African-Americans and White persons because of 7 their distinct historical experiences in this country have 8 developed rather different perceptions about this central 9 theme, a value that all Americans share which is very 10 different than African-Americans. To understand that, you 11 have to look back over a long period of our settlement and 12 also to understand that "race" as we historians use the 13 concept is traced. We talk about its history of race as 14 "socially constructed." I'm talking about race as something 15 that has developed and changed over time. It's a set of 16 ideas. It's what society deals with, the co-existence of 17 people of different backgrounds of that society. Different 18 societies define race in different ways, and our society has 19 made race a very, very rigid dividing line between its 20 citizens. Some citizens thought Blacks were not citizens. 21 As we all know, slavery goes back to the very origin 22 of the American colonies. It was experienced in the early 23 17th Century. But in terms of the question of differential 24 attitudes, outlooks, experiences what is important I think is 25 that the experience of slavery is something that no white BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 194 1 person ever experienced in the United States. 2 Slavery is old, but the slave system that developed 3 in the western hemisphere differed in ways from what had 4 preceded it. First and foremost, it was a plantation system. 5 Slaves were laborers who worked the grounds. But it was also 6 a racial system in which all Black persons bore the stigma of 7 bondage. Remember when people were coming to this country as 8 free immigrants, over three hundred thousand were slaves being 9 brought over. Persons of African descent were not equal to 10 Whites and were not given opportunities as others in this 11 country had. 12 In the 17th and 18th centuries, with the achievement 13 of political dominance, came a harsher era of slavery and 14 avenues to freedom were curtailed. Slaves experienced the 15 institutions of politics and the law very differently than 16 White Americans. Slaves could be bought, sold. They had no 17 legal rights. 18 The American Revolution came and threw the future of 19 slavery into doubt. For the first time, slavery became a 20 matter of widespread public debate and came the hope that the 21 slavery institution could be eliminated. But at the end, 22 slavery survived the Revolution. By 1790, some sixty thousand 23 free Blacks were living in the United States. But it was 24 realized that the two races could not live together on an 25 equal basis. Thomas Jefferson held two views on slaves. He BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 195 1 had owned slaves, but hoped the institution could be 2 abolished. He coupled the idea of emancipation with the 3 colonization of Blacks outside the country. 4 In 1790, the Naturalization Act was passed and for 5 the next eighty years, only White immigrants could become 6 American citizens. And this lasted a long time. Africans or 7 people of African origin could not become naturalized citizens 8 until 1870. Asians could not become naturalized citizens 9 until the 1940s. So the -- another phrase that we use as 10 historians is to talk about a nation not only as a physical 11 entity but as an imagined community. In other words that the 12 nation exists in your mind as well as in geography. The 13 mental picture that existed of this country from the very 14 beginning among the people who were creating it was of a 15 society of white -- of white people, a racial definition of 16 nationhood. 17 And so this left African-Americans with this sensor 18 -- reality of exclusion from the very basic rights, 19 entitlements and aspirations of citizenship. Now, 20 African-Americans by enlarged, wanted to become full-fledged 21 members of American society. In fact, they almost unanimously 22 rejected what was at that time -- and I'm talking about the 23 early 19th centry the mainstream white solution to the slavery 24 question which Jefferson and others put forward which was 25 called colonization which fits again into my point. The BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 196 1 people who said let's get rid of slavery, white people, almost 2 all said let's get rid of slavery and deport the Black 3 population, send them to Africa, send them to the Carribean, 4 send them to Central America. They couldn't -- this is what 5 paralyzed Jefferson who as I said knew that slavery was wrong, 6 but could not envision an interracial society. So whenever he 7 talked about abolishing slavery he always coupled it with what 8 was called colonization. 9 And if you look at the leaders of American life up 10 to the Civil War, Andrew Jackson, John Marshall, Abraham 11 Lincoln, Henry Clay, they all favored colonization. That was 12 the sort of preferred solution. And, of course, it was a 13 symbol of the fact that they could not imagine Blacks as an 14 integral part of the American population. 15 So this -- going back to your point about different 16 perceptions, the perception of not -- of exclusion, of being 17 excluded, is deeply built into Black culture and the Black 18 experience, because of this long reality of enslavement and of 19 deprivation of the basic rights which the society offered to 20 others. 21 And even for freed Blacks, by the time of the Civil 22 War there was -- not in substantial population of freed Blacks 23 both in the north and the south, but they also experienced 24 this sense of exclusion. Even in the north, very few northern 25 states, for example, allowed freed Negroes to vote before the BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 197 1 Civil War. Michigan did not allow Blacks to vote until the 2 time of the 15th Amendment, after the Civil War. They were 3 excluded from public schools. They were excluded from most 4 jobs except the most menial. There were laws prohibiting them 5 from intermarrying with White people. Virtually every state 6 in the union had laws like that. So again, the legal structure 7 and the cultural structure around that, built in this sense of 8 separateness and difference for Black and White. 9 Now, of course the Civil War changes this to a 10 considerable degree. It does abolish slavery as we know. 11 More than that, it writes into our Constitution our laws in 12 the reconstruction period, a different vision of a society 13 grounded on the notion of legal equality for all persons 14 regardless of race. And Black men get the right to vote, and 15 the concept of equal protection before the laws is actually 16 put into the Constitution for the first time. And this changes 17 the society very much. But unfortunately I think the great 18 effort of reconstruction to create the United States as an 19 interracial democracy does not last. It is -- it lasts for 20 awhile, and then there is a reaction against it. It's 21 overturned through numerous ways, violence, politics, et 22 cetera, and a new system of racial exclusion which goes under 23 the name of segregation is put into play in the -- by the turn 24 of the century which as we know lasts well down -- in legal 25 terms -- to the mid 20th century. And in de facto terms, as BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 198 1 we've been hearing today, segregation is still very built into 2 many of the housing and schooling and other patterns of 3 American society today. 4 So when we talk about people having different 5 attitudes, the attitudes are not genetically based. They're 6 not built in because of the color of your skin. They are the 7 product of a long, long history of several centuries of 8 different historical experiences. So when people come into a 9 classroom and as a teacher I see this all the time, they bring 10 with them the accumulated experience of history. They haven't 11 experienced at all individually, but their parents have, their 12 families have, their culture has, and they bring those 13 different experiences and those different attitudes, the 14 attitudes toward freedom itself. In my book on freedom, I've 15 said most White people in America think freedom is something 16 they have. Sometimes they're afraid someone is trying to take 17 it away from them whether it's the federal government or 18 terrorists, or conspirators, or big corporations. Most 19 African-Americans think freedom is something they are still 20 striving to achieve. It's something that lies in the future. 21 It's not a given, it's a struggle. It's an aspiration. And 22 since freedom is such central value in our society, it's the 23 central value, really, that basic difference in outlook 24 percolates out into many, many other areas. 25 Blacks and Whites have very different attitudes of BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 199 1 the federal government. Most White Americans, not all by any 2 means, akin the appeal to on the grounds that the federal 3 government is a danger to their liberty, you know, get the 4 government off your back. Don't let the federal government 5 interfere in your local affairs. 6 Most Black Americans despite a long history of 7 discriminatory policy by federal action still view the federal 8 government much more positively. They still feel that local 9 authorities are often more discriminatory whether it's through 10 slavery, segregation or other things, and they often need -- 11 it's through the action of the federal government that racial 12 gains have been made. 13 So attitudes of the government -- and you can put 14 this out, you know, attitude toward the police, towards the 15 courts, toward educational institutions are every different to 16 the two races, and the reason for that is the different 17 historical experience that they've had. 18 Q I'm going to take you back to something you touched on. 19 Why was it so hard for Jefferson and the other national leaders 20 you mentioned to imagine an intergraded nation? 21 A Well, you know, in the Revolutionary period -- I think I 22 said offhandedly, that they weren't really -- they were talking 23 race, but it wasn't race in the way we use the term today. 24 When they talked about race at that time they -- it sort of 25 merged together what we would call culture, language, sometimes BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 200 1 religion. People who weren't Christians who sometimes called 2 it a different race. The word was a lot more amorphous. But 3 nonetheless they believed, the founders believed that a 4 republic, a -- after all, creating a republic -- they created 5 not only an America independent of Britain but an America 6 without a king, without an aristocracy. There haven't been 7 very many republics in history that have succeeded for very 8 long. And they believed the republic to survive, a government 9 based on the will of the people in other words required, a 10 homogeneous population. In other words, it required a 11 population that shared values and experiences. And diversity 12 was really immimetical to the survival of a republic because a 13 republic has to have a single common good that people can 14 pursue. So they just felt that Blacks are so alien in terms of 15 the rest of the population that they could not be citizens of a 16 unitarian republic. 17 Now, of course, connected with that was also the 18 sense of racial inferiority. Not quite in the 19th century 19 sense where by the late of the 19th century a whole 20 pseudoscience built up in which people talk about racial 21 inferiority in genetic terms and things like that. The 22 founders didn't have that kind of science. But they thought 23 maybe it was climate that it produced it, but whatever had 24 produced it, they certainly had the idea -- and Jefferson in 25 notes on the state of Virginia, his great book, addresses this BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 201 1 explicitly. And he wonders. I mean, Jefferson says well, 2 it's obvious that Blacks have not achieve the same things as 3 Whites have, is this because their environment is bad, or is 4 it because they are actually inherently inferior? And he 5 weighs -- it's well worth reading if you want to know the 6 origins of American racial ideas. He weighs it, and 7 eventually comes out and he says well I must conclude that 8 whether from -- whether it's hereditary or not, blacks are 9 inferior to Whites in both the qualities of mind and body. 10 And that statement by Jefferson is broadcast very 11 widely. It's reprinted. It's picked up. It becomes a defense 12 of slavery. So the notion of an inferior group within the 13 population is just, you know, just makes it impossible to 14 think if they become free they can really be contributors to 15 the society and enjoy the same rights and opportunities as 16 other Americans. 17 Q So in other words, the idea of Black inferiority arose 18 out of the slave system? 19 A Well, here is a long historical debate which I'm sure you 20 don't want to hear that much about. But the fact -- it may 21 have preceded it a little bit, but it was in the early colonial 22 days it was often connected with an anti -- a bias against 23 people who weren't christians. Africans were considered 24 heathens and they were devil worshipers and things like that. 25 But once the institution of slavery was established, and it BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 202 1 wasn't established for racial reasons in the sense -- it was 2 established as a labor system. You know, it wasn't just 3 because Blacks were Blacks, that they were brought over as 4 slaves to do the labor. But once you have a system like that 5 established, it generates its own ideological justification. 6 And the -- in a country that prides itself on its devotion to 7 liberty as we do in the Declaration of Independence, in a 8 country founded on the principles that all men are created 9 equal what justification exists for slavery? The only 10 justification is a justification of racial inferiority. So in 11 a contradictory way the very emphasis on freedom and equality 12 which the Revolution generates also generates a very severe 13 form of racism to justify the exclusion of Blacks from these 14 rights which are proclaimed to be the rights of all mankind. So 15 that you have the growth of democracy and egalitarianism and 16 the intensification of racism going hand-in-hand from the 17 Revolution all the way up to the Civil War to defend slavery 18 but also to defend the boundary which excludes Blacks from the 19 rights enjoyed by White Americans. 20 Q Well why didn't the end of slavery put an end to those 21 ideas then? 22 A Well, that's a good question. First of all, ideas take 23 on a life of their own, and they tend -- ideas both good and 24 bad tend to survive long after the conditions that created them 25 have existed. These ideologies become ingrained in the BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 203 1 education, in the culture, in the assumptions of people, and 2 it's very hard for people to change. What I find impressive 3 actually about the periods of the Civil War and Reconstruction 4 is how many people, White people did change their attitudes not 5 only because of the abolishment of slavery, but because they 6 were able to see African-Americans accomplish things that were 7 valued by the society. The service of two hundred thousand 8 Black soldiers on the Union side in the Civil War, I think was 9 very important in undermining racism on the part of a 10 significant number of White Americans. 11 It proves that they were not simply -- you know, 12 when Blacks -- at the beginning of the Civil War they did not 13 allow Blacks into the Union Army because many people felt they 14 would just run away when they were faced with White soldiers. 15 They couldn't stand up and fight against Whites. It would be 16 impossible. Other people thought they would go berserk, and 17 they'll go massacring everybody, you know, they don't subject 18 themselves to military discipline. 19 But when Lincoln did authorize by 1986, the 20 enlistment of Black men, and then they served. Just the same 21 as any, some of them were good soldiers, some of them were bad 22 soldiers. But they were the same was the point. And it did 23 change racial attitudes very dramatically. And without that 24 change you could never have had the 14th Amendment and the 25 15th Amendment written into the Constitution. These were a BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 204 1 complete reputation of the history of the United States up to 2 that point. I mean, after all, as the Court knows, the law of 3 the land in 1860 was the Dred Scott decision in which the 4 Supreme Court declared that no Black person can be a citizen 5 of the United States. And, indeed, Chief Justice Taney made 6 the, you know, often quoted remark that a Black person has no 7 rights which a white man is bound to respect. That is from 8 the Supreme Court of the United States. So seven or eight 9 years later to write into the laws and Constitution this 10 principle of equal rights for all Americans regardless of race 11 was an incredible transformation, and only that crisis could 12 have gotten that into our Constitution at all. 13 So racism is not a constant in the sense that it's 14 always the same. It doest exist unfortunately throughout our 15 history. But like any other product of human activity, racism 16 changes all the time. And its forms change, and its degree of 17 intensity changes. And its institutional manifestations 18 change. 19 And that period of Civil War Reconstruction which I 20 have written a great deal about was a moment when racism did 21 weaken but unfortunately not enough. And the moments pass 22 eventually, and racism reasserted itself, violence, the Ku 23 Klux Klan, other factors, the -- and a sort of wariness in the 24 North with the struggle over racial equality began to take 25 hold. And over this next generation many of those gains were BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 205 1 taken away, of course, were rescinded basically. And the 2 Constitution became a dead letter in many ways as far as 3 African-Americans were concerned. 4 So the continued strength of racism -- you know, to 5 go back to your question, it survived ultimately the end of 6 slavery. 7 Q I have to take exception to two words you just said which 8 are the words "of course" give us a brief cap on Reconstruction 9 if you would. 10 A Well, I wrote a six hundred and fifty page book about 11 this, but I will try to be brief. Reconstruction is what we 12 refer to -- how we refer to the period immediately after the 13 American Civil War when the country went through perhaps its 14 greatest political crisis in history other than the war itself 15 leading to the impeachment of the president, et cetera. And 16 the fundamental issue on the national agenda was -- well, I 17 guess the interrelated question of how to reunify a nation 18 after a civil war, and what was going to be the status of the 19 four million African-Americans who had been emancipated from 20 slavery during the war. Were they doing to have the same rights 21 as White Americans? Were they going to have the right to vote? 22 What was going to be their economic status? Were they going to 23 have the same opportunities to education and to jobs, et 24 cetera, et cetera. This fundamental question created a 25 tremendous political crisis which led to a battle between BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 206 1 Congress and the President. It led to Southern states first 2 attempting -- the white south attempting to put Blacks back 3 into a condition very close to slavery through the famous black 4 codes, laws that were passed in 1865, and '66 to severely 5 restrict the rights of African-Americans. 6 Eventually the Republican Congress overturned those 7 measures, enacted into our national law for the first time, 8 the civil rights law of 1866, one of the greatest, you know, 9 congressional measures in our history, the principle of civil 10 rights, equal civil rights for all Americans. Then put that 11 into the 14th Amendment. Then in 1867, created new 12 governments in the South in which African-American men for the 13 first time had the right to vote and hold office. And you 14 really, as I've said, began to get a functioning interracial 15 democracy in the South for the first time in the American 16 history. 17 Well over a thousand African-American held political 18 office, ranging from Congress down to, you know, justice of 19 the peace, during the Reconstruction period. And, again, we 20 might not quite realize how new a thing that was. In writing 21 this, I tried to figure out how many African-American men held 22 public office in the United States, anywhere in the North, 23 before 1860, and I could find two in the entire history of the 24 United States from its Constitution to 1860, two 25 African-American persons held a public office. One was in BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 207 1 Massachusetts and one was in Oberlin, Ohio. 2 Suddenly you have hundreds if not thousands of 3 African-Americans, most of them ex-slaves, in positions of 4 genuine power and authority in the South. This creates an 5 incredible backlash, mostly widely associated with the Ku Klux 6 Klan and its violence, but also a political backlash and 7 eventually by 1877, these new governments in the South, one by 8 one, are overthrown or abandoned and a new system of White 9 supremacy comes to be instituted in the Southern states which 10 is eventually based on the disenfranchisement of Black voters, 11 the imposition of legal racial segregation, the designation of 12 certain kinds of jobs as white jobs and certain kinds of jobs 13 as black jobs, the black ones, of course, being the most 14 poorly paid and the demenial jobs, and that sort of thing. 15 And, of course, surrounding this system is the extra legal 16 phenomenon of violence, of lynching for those who tried to 17 step outside the boundary. 18 In the North, of course, some of these things did 19 not happen. Blacks retained the right to vote in the North 20 although after the end of Reconstruction, but still many other 21 forms of discrimination, particularly on the economic front, 22 on the housing front, and on the educational front are very 23 pervasive in the northern states as well. I'm certainly am 24 not trying to give the impression that the South is all racist 25 and the North is all humanitarian. It's not nearly that BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 208 1 simple. But the regional system of the South is most severe. 2 And, again going back to historical experience, there's hardly 3 a Black family in this country that doesn't have some roots in 4 the South, and knows about the era of segregation and 5 disenfranchisement and lynching and violence, et cetera. And, 6 again, that's built in. We're now getting to the period where 7 people actually hear these stories from their grandparents and 8 their parents. It's not like slavery which is so far behind 9 that there's no one around today to talk about directly. 10 So this is again built into culture, knowledge of 11 this distinct history. 12 Q You mentioned something about how it was impressive to 13 you that during the Reconstruction period so many white people 14 changed their minds so much about race. Can you say more about 15 that? 16 A Well, it is. I mean, I think -- you know, when one gives 17 a history like this, one can be misinterpreted as saying, oh, 18 all White people are racists, or racism can never change, or, 19 you know, there's no hope for equality in this country. That's 20 not at all what I'm trying to suggest. Absolutely not. 21 Throughout our history there have been very courageous people 22 of all backgrounds. I mean, the abolitionist included many, 23 many white people obviously who put their lives, I mean, 24 literally -- I mean, to be an abolitionist in the North, you 25 were putting your life on the line at the beginning. I mean, BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 209 1 mobs broke up their meetings. Elajiah Lovejoy, the 2 abolitionist editor was murdered by a mob down in Illinois. So 3 it's not -- there have been plenty of white people who have 4 been able to step outside of the racial construction. Maybe 5 "plenty" is perhaps a little bit of an exaggeration, but 6 there's certainly been many examples. 7 But in Reconstruction because of the crisis of the 8 Civil War, because of the contributions of African-Americans 9 to the union victory, because of the self-interest of the 10 Republican Party which wanted to have Blacks voting for them, 11 and many motives came into play here, for a time a 12 considerable number of White Northerns were willing to accept 13 the principle of legal and political equality. This doesn't 14 mean that they suddenly abandoned all their prejudices. At 15 that time people made a very clear distinction what they 16 called social equality, inviting someone to a home and things 17 like that, which they said, no, this has nothing to do with 18 that, you don't invite Black people to our home, and be 19 personal friends with them, we're talking about their status 20 as citizens in terms of the body politic in the legal sense. 21 But it does show that change is possible. One of the 22 reasons for the change was a very, vigorous program of 23 governmental action in order to enforce these rights. Writing 24 them into the Constitution, writing them into the laws. The 25 term "affirmative action" did not exist in 1865, but the BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 210 1 federal government established the Free Men's Bureau which was 2 a governmental agency primarily designed to assist former 3 slaves in the transition from slavery to freedom. And it set 4 up schools in the South, and it took cases out of Southern 5 courts when Black people couldn't get justice, and it issued 6 relief to people who were starving after the war and things 7 like that. 8 And then for a while, unfortunately, not long 9 enough, the federal government actually used troops to 10 suppress the Klan. President Grant sent federal troops to 11 South Carolina, declared marshal law in order to crush the Ku 12 Klux Klan. 13 So one of the lessons of that period is that it 14 requires firm, public action, firm action on the part of 15 government to actually implement these policies. And then 16 when you do that, you do change people's mind. I mean, it 17 does make people accept the legitimacy after a while of those 18 actions if they know those rights are going to be enforced. 19 But, of course what happens is in that period -- I keep saying 20 "of course" it's, of course, to me, but I know not everybody 21 knows its history, what happens is that there is then a 22 retreat and the retreat is in the North as well as the South, 23 and the retreat by the federal government, and by state 24 governments, and -- I'm sorry to say this in a court of law -- 25 but the Supreme Court plays a not totally produce-worthy role BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 211 1 in the retreat starting with the slaughterhouse cases and the 2 crookshank, you know, I could list the Civil Rights cases down 3 to Plessy. Little by little the legal edifice of equality is 4 chipped away and restricted. It's not all one swoop. There's 5 not just a court decision saying, okay, Blacks don't have any 6 rights any more. It takes like over a whole generation, but 7 little by little the edifice of equality is reduced and 8 chipped away. The federal government begins to make it clear 9 that they're not going to send troops any more to suppress 10 violence, it's a state matter. The Bargain of 1877 basically 11 leaves government of the South in the hands of white 12 supremacists again. And once people know that these rights 13 are basically not going to be enforced then I think it really 14 undermines completely the possibilities of further progress in 15 terms of not only of legal standing but in terms of attitudes, 16 and stereotypes and racial goodwill in the society. 17 And just one other point, and then a rather sort of 18 self-reinforcing set of ideas strengthens and becomes 19 entrenched which is Blacks are in a position of inferiority, 20 they have lousy education; they have poor jobs; they obviously 21 aren't achieving anything. And the very fact that they are 22 confined to that status then gives justification to the those 23 who say well obviously it's their own fault that they're in 24 that status, otherwise, they would be moving up. So the very 25 results of discrimination then reinforce etiological BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 212 1 justifications for discrimination. 2 Q Are there other examples -- well, I should start by 3 saying is the kind of aggressive intervention by the government 4 that you've just referred to in talking about reconstruction 5 one common element in period of progressive change on matters 6 of race in our history? 7 A Yes, I think it is. There have a number of -- and, 8 again, I'm not trying to paint a totally bleak picture. Quite 9 the reverse. I think there have been moments of considerable 10 progress on race relations. The only thing to bear in mind is 11 that our history is not just as some people like to think of 12 it, a sort of a story, an upward line of progress. It's not 13 quite that simple. There have been moments of progress. There 14 has also been great moments of retreat. Rights can be one and 15 rights can be taken away. So we can never just sit back and 16 rest on our laurels and say, okay, we've solved the problem and 17 now let's go onto some other question. But those moments I 18 would have to identify as key moments of progress in this 19 racial area. First of all, of course, the Civil War era. And 20 in other -- I'll mention the others in a second, but I think 21 the two key things -- or maybe it's three really all 22 interacting is one, wars are often -- wars are often moments of 23 change in race relations because wars require the mobilization 24 of the population. Not a little war of 1812 or something, but 25 a big war requires you to mobilize the entire population, and BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 213 1 you have to offer people something. You know, if you're going 2 to ask for sacrifices, there's sort of an equality of sacrifice 3 on the battle field even though until -- you know, Korea people 4 were fighting in segregated units, but nonetheless they were 5 fighting and dying. And that sort of helps people to redraw 6 their mental map of who is really an American. 7 Second of all, progress comes through public 8 movements, social moments, the Abolitionist Movement, one of 9 the greatest movements in our history. The Civil Rights 10 Movement, the greatest mass movement of the 20th Century. The 11 less-well known movement in the new deal and World War II of 12 black organizations, and labor unions and other -- church 13 organizations and others united around putting the race issue 14 back on the national agenda after it had been off the spectrum 15 you might say for a long time. So wars -- social movements, 16 and finally as I've said, government action. Government 17 action always seems to be necessary to implement these 18 changes, to solidify these changes to make it clear that 19 rights of are no value if there's no one around to enforce 20 them. And one of the problems of our history has been since 21 the Civil War Blacks have had their rights on the statute 22 books. The 14th Amendment was never appealed. It's been there 23 all the time, but they were not enforced. Nobody was around 24 to enforce the 14th Amendment and the Civil Rights laws from, 25 you know, maybe the 1880s down to the 1950s virtually. So you BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 214 1 have a long period of time of rights on the books with no 2 power to actually make sure they were recognized. And that 3 requires a government action. 4 So those I think are the key moments of racial 5 change in our history: The Civil War era; the new deal World 6 War II era; and then the Civil Rights revolution era of the 7 late 1950s and 1960s. All of those saw very remarkable 8 changes, but all of them also were followed eventually by 9 periods of retreat as well where some things were solidified 10 and some things were not, and there was movement backwards as 11 well. 12 Q On the Civil Rights Movement specifically tell us more 13 about the retrenchment. 14 A The Civil Rights Movement of our own era? 15 Q Yes. 16 A Well, I think the key point is that retrenchment is -- as 17 I said at the Reconstruction period is something that is this 18 long process. There's no just single moment where we say, okay, 19 there's retrenchment. Any social movement seems to have kind 20 of a natural lifespan. In other words people can't be in a 21 crisis mode forever. And so it is inevitable that the Civil 22 Rights Movement would eventually -- with the intensity of it 23 would eventually begin to fade a little bit. 24 Of course, as we know, the high point of the 25 movement's accomplishments were the mid the 1960s, the Civil BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 215 1 Rights Law of 1864, the Voting Rights Act '65. But even there 2 those of us who are old enough to have been alive that long 3 remember then that other issues came to the floor which were 4 somewhat more intractable than the dismantling of the racial 5 segregation system of the South as important as that was. We 6 remember the last few years of Dr. Martin Luther King's life, 7 you know, it's sometimes forgotten that King when he was 8 assassinated was -- he was in Memphis not for a Civil Rights 9 Movement but for a strike of sanitation workers, where he was 10 now trying to address the tremendous gap in income, wealth, in 11 poverty and job situation between Black and White, not simply 12 the sort of legal structures of segregation. 13 The questions of unequal schooling we've heard about 14 today, of unequal job access, the accumulated weight of 15 history in these great differences between Black and White in 16 terms of help and life and expectancy and family income and 17 wealth. Those prove more difficult to address through public 18 policy than simply giving people the right to vote, or saying, 19 okay, you can no longer maintain racially segregated, you 20 know, water fountains, and restrooms and things like that, 21 lunch counters. 22 So part of the retrenchment was just the fact that 23 the issues that came to the fore were more difficult to deal 24 with, but then what happens I think is that in the very effort 25 to deal with them and affirmative action really begins -- some BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 216 1 people don't even realize this, under the Nixon Administration 2 in a very powerful way. But the very effort to address these 3 problems begins to lead to some resentment on the part of 4 others. And some white people begin to say, well, wait a 5 minute, why is the government doing this so much for 6 African-Americans? Is this really right after all we've given 7 them their rights, what are they complaining about? 8 People who don't have a very -- you know, aren't 9 particularly that knowledgable about the long history of 10 inequality, racial inequality in the United States find it 11 easy to say, okay, the problems have been solved and, 12 therefore, let's, you know, let's move on so to speak, let's 13 have normalcy. We've given these people their rights so we 14 can move on. 15 And retrenchment I think since the Civil Rights 16 Movement has taken the form not as it did in the late 19th 17 Century of taking away the right to vote. I mean, 18 African-Americans still have the right to vote, but of a 19 diminution in the willingness to enforce civil rights 20 legislation. There has been emphasis in the 1980s and '90s. 21 Attorney Generals very often have gone to court trying to 22 restrict the scope of civil rights legislation. Even the law 23 of 1866 amazingly enough came before the Supreme Court in the 24 late 1980s and Attorney General Meese insisted that it had a 25 very limited impact in many ways or that the court should rule BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 217 1 that way. 2 A general sense that the problems have been put 3 behind us. I mean -- in a sense that's what I mean by 4 retrenchment, an unwillingness to recognize that many problems 5 still persist in our society and require vigorous action to 6 deal with them. Once you adopt the sort of frame of mind that 7 the problem that the problem has fundamentally been solved, 8 then it becomes very easy to say well, therefore, government 9 policy is attempting to deal with these problems are 10 illegitimate. That's another area if you look at public 11 opinion polls. We heard this morning that some of the reasons 12 public opinion polls aren't totally reliable, but due to 13 public polls another key difference in outlook between most 14 African-Americans and most whites is simply on this question 15 is does race matter in American society. Is race an issue? 16 Most white Americans today say no, race is not a big issue in 17 American society, it has been solved. Most African-Americans 18 certainly say, yes, it is an issue. Racial inequality still 19 exists. Well, that fundamental difference in outlook is 20 reflected in differences of attitude toward government policy 21 and things like that. 22 Q What's your view on whether race is still an issue in 23 America? 24 A I believe it very much is, absolutely. I can't imagine 25 how anyone could think it isn't unless one has not encountered BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 218 1 large numbers of non white people in one's life. And I think 2 there unfortunately quite a few people in our society who are 3 in that category. 4 Q Dr. Foner, you mentioned disparities in wealth and income 5 and so forth by race several minutes ago. Can race be captured 6 by socio-economic status? 7 A Well, as I said before African-Americans were initially 8 brought to this country to be for us laborers. So they have 9 always occupied an inferior economic status, or a degraded 10 economic status. And then after the emancipation of slaves, 11 African-Americans by in large were confined for many, many 12 years to low-paying, menial, low-skilled jobs. So the center 13 of gravity of the Black community has always been lower in the 14 social scale than for Whites although it the last generation 15 thanks to the Civil Rights Movement and thanks I must say to 16 affirmative action programs both in the universities and by 17 employers a considerable Black middle class has developed as we 18 all know. And this is a very positive development for our 19 society. So class does have something to do with the racial 20 divide, no question about it. And the Black middle class is 21 not quite the same as the White middle class though. It's -- 22 most Black middle class people are much more precarious in 23 their economic status. Their income -- if you take two -- a 24 Black and a White family with the same income you will almost 25 certainly find that their assets, their family wealth are quite BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 219 1 different. Many fewer Blacks own their own home, for example. 2 Far fewer -- very few actually Black families own any stocks. 3 Nowadays it's not such a bad thing. But -- until recently that 4 was a depravation -- 5 But -- in other words, their assets -- now why is 6 that -- wealth is the accumulation of history. Income is what 7 you get today. Family wealth is the accumulation of history 8 and so all these discriminations are built in to the different 9 class status of Blacks and Whites. But this a round about 10 what of getting to your question is, no, you cannot capture 11 racial inequality simply by talking about socio-economic class 12 and equity. There is an overlap and the Black condition in our 13 history has had a powerful class element but the racial 14 element is also powerful and at most points is actually more 15 powerful. Black middle class people face numerous 16 depravations in our society which White people of that 17 economic class do not face. 18 If you are driving a nice expensive car and you are 19 a White person, people -- from where I come anyway, people 20 will say, oh, that guy's got a nice car. If you are a Black 21 person driving a nice expensive car you are an object of 22 suspicion and likely be stopped by the police on the New 23 Jersey Turnpike. So your socio-economic status does not 24 obviously trump or eradicate your racial status. 25 That may be a fairly small example but it is -- it's BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 220 1 an indication of the fact that the racial differences still 2 are there even if you take people of the same socio-economic 3 level. 4 Q In your view are ideas about citizenship still defined 5 around race in the way you were describing earlier? 6 A Well, citizenship or in the way we talk about it nowadays 7 as historians the question of who is an American or who is 8 entitled to be an American that issue has always been very 9 contiguous in our history. As I said at the very beginning our 10 history, citizenship was pretty much defined for White 11 Americans. Nowadays -- I don't know why we keep mentioning 12 California, but of course, there are big debates in California 13 about the rights of illegal aliens, Spanish-speaking people, 14 language issues. These are always contiguous issues. And I 15 think today, of course, our immigration laws are a lot less -- 16 you know -- they're not at racially restricted as they were in 17 the past, but certainly the mental map of who is a genuine 18 American, for many, many people always has a racial component 19 to it. 20 A colleague of mine at Columbia, Gary Okehero (sp) 21 is a Japanese American. He was born -- he's as American as I 22 am. His ancestors have been in America as long as I have, but 23 he physically looks Asian. And he is always running into, you 24 know, he's talking about cab drivers who say, well, where did 25 you grow up. He says, well, I grew up in -- you know, BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 221 1 Colorado, and then they say, oh, you speak English so well. 2 He says, of course, I speak English well, I grew up in this 3 country. He doesn't speak Japanese. They think he speaks 4 Japanese because he looks Japanese. And they're always 5 saying, but -- they assume he's not really an American because 6 of the way he looks. 7 So there is that sort of under -- the unstated 8 assumption that the genuine American is a White American. 9 That is the normal status. And those who are not that are 10 slightly abnormal in some way or another. 11 Q You raised the question of racial minorities other than 12 Black people in the United States. What's the importance of 13 the history of Black people in the U.S. for understanding race 14 more broadly? 15 A Well, obviously anyone who is awake in our society today 16 knows that race is not simply a question of Black and White 17 today, and probably never has been although more so today than 18 ever, large Asian population, large Hispanic population. The 19 racial configuration of the country is much more complex. And 20 each of those groups, Latinos, Asians, Native Americans have 21 its distinct historic history which is not the same as that of 22 African-Americans. Nonetheless because of the importance of 23 slavery in our history, because of its early presence and its 24 centrality to the development of the United States, and slavery 25 was the major economic institution of the American colonies BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 222 1 and, indeed, one might say of the United States of America up 2 until 1860, the power of the institution of slavery and the 3 presence of that large African-American population early on 4 meant that the racial definitions regarding African-Americans 5 became the template within which other groups were fit, 6 sometimes not very comfortably. So that, for example, when the 7 area that is now California and the Southwest was annexed to 8 the United States in 1843, after the Mexican War and the Treaty 9 of Guadalupe Hilalgo there was a lot of debate about are these 10 Mexicans white. What are they? Are they white? Are they non 11 white? In other words you had to define whether they were 12 white or not. You couldn't -- because that was the category: 13 white and non white based on the black-white divide. And in 14 California they were at first defined as white because a lot of 15 these -- California didn't have that large of population at 16 that moment, and a lot of the original inhabitants of the 17 Mexican inhabitants were big land owners. And they wanted to 18 make sure their property and their power were maintained under 19 the new American regime and they were literally defined as 20 white in the law of California initially. Whereas in Arizona 21 and New Mexico where the Hispanic population was much poorer 22 and much more intermingled so to speak with the Indian 23 population, the Native American population, they were defined 24 as non white. This is a good example of what we mean how race 25 is socially constructed. The same person in one state is white, BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 223 1 he goes to another state, he's non white. Obviously, that's 2 not a scientific principle; it's a social principle. 3 So that principle of exclusion on the basis of non 4 white status has been applied to other non white groups in our 5 history. Asians very extensively in the 19th Century although 6 in the 20th Century, more recently Asians have begun to be 7 absorbed more fully into what one might almost call the white 8 population. At least some, the more economically successful 9 groups of Asians. 10 One indication of the severity of the Black-White 11 divide though is -- again, this is statistics, you can't prove 12 that much with statistics, but is intermarriage race. Today a 13 majority of Asian-American women marry non Asian men which 14 shows how they are being absorbed so to speak into the White 15 population. But among Black and White even though you may see 16 a few of these on tv, the number of interracial marriages is 17 still miniscule. That cultural divide is still as powerful as 18 it has been for most of our history. 19 Q How is it that the enslavement of Black people came to be 20 such a central part of the American economy and of American 21 society? 22 A Well, unfortunately is the case that, you know, we have a 23 national -- as other historians use is the invention of memory. 24 You know, you sort of create a historical tradition which is 25 partly true and partly mythology. We have invented a historical BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 224 1 memory of freedom-loving people moving from oppression in 2 Europe to settle in this new world. Of course, there are many 3 people that is true of. But there weren't enough of them 4 actually in the colonial era to actually settle the country. 5 And so very early on it was ascertained that if the people who 6 were in charge, people who wanted to set up large agricultural 7 enterprises, et cetera, plantations needed to get a forced 8 group of laborers. They first tried with the Indians. But the 9 Native Americans were not -- it's very hard to enslave people 10 on their own territory. Slaves are almost always aliens 11 brought from somewhere else. Captives of war or something like 12 that. People who are on their own territory can run away. It 13 causes warfare constantly if you're trying to enslave people 14 who are right there. The Indians were not a very viable group 15 of enslaved laborers. Africans were available. There was a 16 slave trade already existing in Africa. There was already a 17 slave trade across the Atlantic in the period of the -- in the 18 rise of the Spanish Empire, even before the settlement of the 19 British colonies. Africans were available. They were 20 different. They were alien. They were brought over. 21 By the 18th Century -- in the 18th Century more 22 enslaved Africans came to the thirteen colonies than any other 23 group of immigrants. More Africans than British. More 24 Africans than Irish. More Africans than Germans. This was 25 the largest group of new arrivals in 18th Century America. BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 225 1 Slavery became the most powerful economic institution. It was 2 the only institution really creating a commodity which has 3 value in the world market. The tobacco, later on the cotton 4 of the South were extraordinarily valuable commodities in the 5 world market place. So slavery became the most prominent 6 economic institution. 7 I'll give you -- I said statistics don't anything 8 but I'll give you one, in 1860, the value of slaves, the 9 economic value of slaves, if you just -- the market value of 10 slaves as property was about three billion dollars of the 11 slave population. Now that's a lot of money, but that's when 12 a million dollars meant something. 13 The total -- the economic value of all the 14 railroads, factories and banks in the United States was less 15 than three billion dollars. In other words the slave 16 population was worth more economically than all the factories, 17 railroads, and banks in the United States put together. So 18 this was a pretty -- that's why we had to have the Civil War 19 to get rid of slavery. I mean, they weren't exactly ready to 20 give it up voluntarily. 21 Q Is that why the Civil War and Reconstruction were such a 22 period of crisis? 23 A Well, it was a period of crisis partly because it was the 24 destruction of the largest economic institution in the nation, 25 if you want to look at it that way. And because, as I said, it BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 226 1 raised this issue of -- really the question they had to debate 2 was it -- is who an American? What is an American What does it 3 mean to be a free American? That was the problem of 4 Reconstruction. Four million people had been freed. What does 5 it mean to be free? Is there going to be a separate freedom 6 for these Black people or are they going to enjoy the same 7 rights as White Americans? That was the question fought out in 8 Reconstruction. 9 Unfortunately the policy adopted then as we said did 10 not stick. The great historian Seband Woodward coined the 11 phrase which other people then used that the Civil Rights 12 Revolution of the 1960s was the second Reconstruction, the 13 second effort to implement that principle of equal rights for 14 all Americans. It's an interesting reflection that it took the 15 country a century to try to come to terms with the agenda 16 which was announced at the end of the Civil War. It took a 17 whole century to get to the point where those principles could 18 actually be implemented in our society. That's another 19 example, you know, of just the weight of history. History is 20 not just a dead past. It's still alive in our institutions, 21 in our memories, in our attitudes, in our stereotypes, and the 22 ways we deal with each other, and our attitudes. So that's why 23 everybody has to know this history. It's not just some arcane 24 academic subject. 25 Q Have we gotten all the way there? BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 227 1 A To where? 2 Q To equality and intergradation? 3 A No, I'm afraid we haven't. I continue to hope that we 4 will one of these days. But as a historian -- I don't think we 5 should be surprised that we haven't gotten all the way there. 6 If you take the long view and you see that slavery existed for 7 two and a half centuries in this country, followed by another 8 century virtually of racial segregation and Jim Crow and 9 disenfranchisement, we have made progress, no question about 10 it. I assume you're not one of those that say, oh, everything 11 is always the same. But we still have a ways to go, and that's 12 just a challenge we face as a society. 13 Q Has it been necessary for us to stand together, people of 14 difference races White people, Black people, Latino people, 15 Native Americans, Asians in order to progress? 16 A Well, I think so. As I've said, the greatest progress 17 has come at times when people did that. The abolitionist 18 movement was an intergraded movement. It was the first 19 intergraded in American history of Blacks and Whites working 20 together. The period of World War II was one in which as I 21 said Black organizations like the NAACP, and the Urban League 22 worked very closely with the American Jewish Congress, and with 23 the National Council of Churches, and with trade unions, the 24 CIO on issues of racial equality. And the Civil Rights 25 Movement brought together people of all backgrounds. So, yes, BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 228 1 I don't there's any reason -- well, I think it would be 2 undesirable for every group to go its own way and just assume 3 that it has no role in achieving equality for other people. 4 Q In your opinion in American history on the contrary 5 progress has come through intergraded groups standing together 6 -- 7 A I believe so, yes. It's not always that easy. 8 Intergraded groups face internal tensions. Even the 9 abolitionists had conflicts between Black and White 10 abolitionists. Fredrick Douglass eventually decided he had to 11 set up his own newspaper because he felt the White abolitionist 12 newspaper by William Garrison was not fully reflecting Black 13 attitudes. This is not simple, but I think Douglass always 14 worked very closely with great White abolitions like Wendell 15 Phillips and people like that. And, you know, I think that's a 16 model for how one ought to address, or ought to think about how 17 social movements sort of operate in addressing these problems. 18 MS. MASSIE: Thank you, Professor Foner. 19 THE WITNESS: You're very welcome. 20 MR. PAYTON: Your Honor, I'm very mindful of the 21 time and I'm a little nervous and I do have some questions, 22 not a lot, but because of the time I would actually like to 23 see if they want to go first. 24 THE COURT: That's fine. I appreciate that. I was 25 going to tell you the same thing that maybe we should -- BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 229 1 MR. RICHTER: That's fine with us, our Honor. 2 THE COURT: He's all yours. 3 Please, no laughing. 4 MR. RICHTER: I didn't think I would get up here. 5 CROSS-EXAMINATION 6 BY MR. RICHTER: 7 Q Good afternoon, Professor Foner. 8 A Yes, hello. 9 Q My name is Kai Richter. I represent the plaintiff in 10 this case, Barbara Grutter. We haven't met before. 11 A No. 12 Q Are you being paid for your work in connection with this 13 case? 14 A I was paid by Wilmer, Cutler & Pickering to produce a 15 report which is part of the record. I am -- I regret to say I 16 am not being paid for my appearance here today. My air fare 17 was paid, but I am volunteering my services free of charge to 18 testify. 19 Q And you were paid two hundred dollars an hour in 20 connection with your report? 21 A Correct. 22 Q Aside from your work for the Intervenors in connection in 23 this case are you affiliated with the University of Michigan or 24 the law school in any way? 25 A No, I have no -- I have lectured as a guest of the BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 230 1 history department there a few times, but I have no official 2 connection with the University of Michigan, no. 3 Q You've never been employed there? 4 A No. 5 Q You've never done any consulting work or other work for 6 the university? 7 A No. 8 Q You never went to law school there? 9 A I've never went to law school. 10 Q And you never went to undergraduate school there? 11 A No, no never attended. 12 Q And I take it you don't know anybody from the law 13 school's admissions office? 14 A No, I don't believe I do. 15 Q Do you know how many under-represented minority students 16 are currently attending the law school? 17 A No, I don't. 18 Q Do you know anything about the admissions policy at the 19 law school? 20 A Very little. All I know is that they are using some kind 21 of affirmative action program which involves the consideration 22 of race, but I'm not -- I'm certainly not an expert on the 23 procedures of the University of Michigan, no. 24 Q Have you ever read their policy, their admissions policy? 25 A No. BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 231 1 Q So would it be fair to say then, Professor Foner, you do 2 not know the extent to which the university takes race into 3 account as part of its admissions process. You're not an 4 expert on that subject. 5 A That's correct. 6 Q And likewise you're not an expert on whether the 7 university's admissions program constitutes a double standard; 8 are you? 9 A I'm not an expert on the specific program and, therefore, 10 I wouldn't be able to say anything like that, right. 11 Q And you do not consider yourself an expert on the subject 12 of standardized testing; do you? 13 A Definitely not. 14 Q Or on the subject addressed yesterday by Professor Allen 15 with respect to the GPAs of minority students? 16 A I wasn't here yesterday when he testified, but probably 17 you're right, yes. 18 Q So -- 19 A I would say though as a teacher at Columbia University 20 for many, many years I have encountered -- I do have experience 21 in admissions processes, and in dealing with students of 22 diversed backgrounds, dealing with their GPAs trying to wonder 23 whether their SAT scores are meaningful indicators. Things 24 like that. I don't know if that is expertise, but I do have a 25 lot of experience in teaching in a diversed academic BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 232 1 environment. 2 Q But you're here to testify today and you have testified 3 today and you've expressed some opinions in your report 4 concerning the history of societal discrimination against 5 Blacks and other minority groups. 6 A Yes, right. 7 Q I'd to talk very briefly about some of the opinions that 8 you expressed in your report. 9 A Yes. 10 MR. RICHTER: Your Honor, may I approach the 11 witness? 12 THE COURT: You may. 13 BY MR. RICHTER: 14 Q Is that the report that you wrote? 15 A It certainly looks like it, yes. 16 Q Could you turn to the fourth page of that report for me, 17 please? 18 A Yes. 19 Q Could you turn to the second full paragraph, and the 20 second sentence in that paragraph starting with the word 21 "today." 22 A "Today, with the Hispanic and Asian" -- 23 Q Correct. It says, "Today, with the Hispanic and 24 Asian-American populations growing rapidly, the familiar 25 bipolar understanding of race in America as a matter of black BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 233 1 and white is increasingly out of date." 2 A Right. 3 Q Do you agree with that statement? 4 A I wrote it. I definitely agree with it, although as a 5 historian I would have to say pulling one sentence out of a 6 fairly lengthy exegesis doesn't really give the full meaning of 7 what I'm trying to argue because I obviously go on to say why 8 I'm focusing on the black and white template as the basic 9 definition of race in America. 10 Q Sure, and I'll just go on to the next one that you have 11 written there. 12 A Okay. 13 Q "Nonetheless, this report of the salience of race in 14 American history will focus primarily, although not 15 exclusively, on the experience of African-Americans." 16 A Right. 17 Q And the experiences of African-Americans is primarily 18 what you've testified about here today. 19 A That's right. 20 Q Okay. I'd like to turn for just a minute to the portions 21 in your report which deal with discrimination against Asian 22 Americans. 23 A Okay. 24 Q Could you please turn to the 22nd page of your report? 25 A Right. BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 234 1 Q The first full paragraph, and the second to the last 2 sentence of that paragraph, starting with the word "beginning." 3 A Yes. 4 Q It says, "Beginning in 1882, Congress excluded immigrants 5 from China from entering the country altogether." 6 A Right. 7 Q "Exclusion profoundly shaped the experience of 8 Chinese-Americans, long stigmatizing them as unwanted and 9 unassimilable, and justifying their isolation from mainstream 10 society." 11 A Right. 12 Q Could you now turn to the tenty page of your report, the 13 first full paragraph. 14 A Okay. 15 Q The last sentence there, "For eight years only white 16 immigrants could become naturalized citizens. Blacks were added 17 in 1870, but not until the 1940s did persons of Asian origin 18 become eligible." 19 A Right. 20 Q And if you will just bear with me I'll just bring you to 21 one other excerpt from your report, page 34, the second full 22 paragraph, the first sentence there. 23 A Yes. 24 Q "Of course the internment of tens of thousands of 25 citizens of Japanese descent during the war belied the new BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 235 1 spirit of racial accommodation." 2 A Yes. 3 Q In light of these experiences do you believe there is 4 also a longstanding history of societal discrimination against 5 Asian Americans in this country? 6 A Yes. 7 Q And I believe you mentioned in your testimony here today 8 you gave an example involving an Asian friend of yours and a 9 cab driver. 10 A Yes. 11 Q Do you believe that Asian Americans continue to 12 experience societal discrimination today? 13 A I think some of them do, but considerably less than in 14 the past. 15 Q Would you agree with me, Professor Foner, that Asian 16 Americans are well represented in higher educational 17 institutions today? 18 A Yes, it certainly seems that way. 19 Q Including those institutions, Professor Foner, such as 20 those in the University of California system which do not 21 consider race in their admissions process? 22 A I believe so. I don't have statistics on that, but I'm 23 certain that's true. 24 Q Let me just provide you with some of the specifics that 25 were provided to us here today in connection with Professor BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 236 1 Garcia's testimony. I can't stipulate to the accuracy of these 2 statistics, they're not my own, but I'll just represent to you 3 that the University of California at Berkeley looking at their 4 1999, enrollment figures here on this chart shows that there 5 are one thousand two hundred and three Asian Americans who were 6 enrolled in 1999. Does that number surprise you, out of a 7 class of three thousand two hundred and eighteen, freshman 8 class? 9 A I don't know if it surprises me or not because I really 10 have nothing to gauge it against. But it shows a considerable 11 number of Asian American students if that's what you're 12 suggesting. 13 Q Sure. Let me give you something to gauge it against. 14 Does it surprise you that the number of Asian American students 15 who enrolled in that freshman class in 1999, the most recent 16 years for which figures are reported here on this chart is over 17 two hundred students greater than the number of Caucasian 18 students which is nine hundred and eighty-two? 19 A Well, I would assume that means that given the criteria 20 for admissions that we've heard about earlier today, that Asian 21 Americans, at least some portion of the Asian American 22 population, and after all Asian American as you know is a 23 category which includes a very wide of variety of people of 24 different national backgrounds and different periods of 25 immigration to the United States. One would really have to BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 237 1 understand the significance of those figures, one would have to 2 break it down by who they are, are these primarily the children 3 of people who have immigrated since 1965, when a very 4 considerable number of pretty well-to-do and skilled and 5 educated Asians came in and have continued to come into the 6 United States under the new immigration law of 1965, which 7 emphasized skill and family reunion rather than national origin 8 as it had been before. I don't think you would find too many 9 children of Cambodian refugees, maybe you would. But it 10 suggests that, you know, one would have to now the family 11 background and the nature of the school systems that these 12 Asian students are coming from to really gauge the significance 13 of those figures. I think by themselves the figures don't tell 14 us a heck of a lot. 15 Q You've given us a lot of historical testimony here today. 16 Did you express any opinions in your report or here today and 17 correct me if I've missed something, concerning the legislative 18 history of the 14th Amendment? 19 A I didn't actually, although if you want me to, I can 20 certainly express opinions about it. I've explained that 21 pretty carefully, but I wasn't asked about it. 22 Q Well, you don't contend, do you, that Congress intended 23 to allow for prefaces in favor of Blacks and other minority 24 groups by approving the 14th Amendment in the 1866; do you? 25 A I think that if you read the debates in Congress at the BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 238 1 time of the 14th Amendment as well as the ratification sections 2 of the legislatures that ratified it, you will find that these 3 phrases which have been debated the courts since then, equal 4 protection of the law, due process of laws, et cetera, had a 5 wide variety of meanings at that time. And many -- I don't 6 think there was a single original intent of that language, but 7 certainly many of the people who were framers and ratifiers of 8 the 14th Amendment did not understand equal protection of the 9 laws as to be incompatible with targeted efforts to redress the 10 legacy of two hundred and fifty years of slavery. After all as 11 I've said these are the same people who voted to set up the 12 Freed Men's Bureau, they're same people who set up the Freed 13 Men's Savings Bank which was aimed to encourage thrift among 14 African-Americans. So clearly there -- another point about the 15 14th Amendment which we tend forget and it's easy to forget is 16 that the people who wrote it and ratified it expected it to be 17 enforced and abided by. In other words they expected the 18 states for this to be the law of the land. They expected 19 states to abide by the principle of equal treatment of all 20 Americans, and particularly the former slaves. If that had 21 actually happened, and had been institutionalized for the 22 period from the 14th Amendment to today, we might not be in the 23 situation we are today. 24 So I think the framers of the 14th Amendment thought 25 that they were lying the foundation for a society of equality. BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 239 1 They did not believe that it was a contradiction to say we're 2 lying the foundation for a society of equality yet we have 3 here a group of people who have been slaves for two hundred 4 and fifty years, we must make particular efforts to lift them 5 up to a position where they can enjoy equality in society. 6 So I don't see any contradiction between affirmative 7 action and the original intent of the 14th Amendment. 8 Q But you did testify here, did you not, Professor Foner, 9 that we didn't see the advent of affirmative action in this 10 country until the Nixon Administration? 11 A Affirmative as it's currently instituted. There were 12 little examples of what might be called affirmative action as I 13 said in the period of Reconstruction itself, but then a long 14 period ensued as I was saying in which the ideal of equality 15 was completely pushed off the national agenda. So one would 16 hardly expect action towards affirmative action, for example, 17 under Woodrow Wilson's Administration who introduced racial 18 segregation in Washington, D. C. or, you know, even President 19 Roosevelt who was so closely tied into Southern democratic 20 power in the Congress -- 21 The fact that affirmative action arise as a fully 22 institutionalized policy until the Nixon Administration I 23 don't think tells you much about the intentions of the 14th 24 Amendment. It tells you about that long period of inequality 25 that elapsed between the 19th and 20th centuries. BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 240 1 THE COURT: Let me ask one question since you've 2 talked about original intent. As an historian -- and maybe 3 you're not the perfect person -- do you believe that the 4 original intent is an important consideration of the 5 Constitution? 6 THE WITNESS: Well, we debate this all the time. Of 7 course, historians -- our view as historians of original 8 intent is a little bit different than lawyers or judges in the 9 sense that -- my experience is that the legal definition is 10 rather narrowly focused -- I may be guilty of this myself in 11 my answer, to finding a quote from a member of Congress who 12 says, well, here is the purpose of this bill or amendment, 13 whereas, historians are always asking the question what did 14 people intend to do? But if I'm for the intent of the 14th 15 Amendment, I'm also going to look at the press at the time, 16 and the letters of abolitionists, and the -- and Black. You 17 know, nobody ever considers Black attitudes to the 14th 18 Amendment. They were part of the population at this time, and 19 they had a conception of what equality was, equal protection, 20 which might not had been the same as all Whites. It's the 21 intellectually universe so to speak. 22 But to go to your question, your Honor -- 23 THE COURT: The question goes to the Constitution 24 not necessarily the 14th Amendment -- 25 THE WITNESS: Well, that is part of the BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 241 1 Constitution. Historians have made this -- I mean, personally 2 -- you're asking me, I'm not a law school graduate -- 3 THE COURT: I'm asking you as a historian. 4 THE WITNESS: I believe in what I guess Justice 5 Marshall called a living constitution. In other words I don't 6 believe we should be trapped in the prejudices and outlooks of 7 people as great as they were, lived two hundred and some odd 8 years ago. Their conception of democracy was entirely 9 different than ours, that's why we're saddled with this 10 electorial college which as we saw doesn't always reflect the 11 popular will. Their conception of race was very retrograde. 12 That's why they protected slavery in the Constitution. I 13 don't think constitutional interpretation should be merely 14 rearticulating over and over again the particular beliefs of 15 1788, 1789. 16 On the other hand, we do have a written constitution. 17 We can't just -- you know, there must be a middle ground 18 between saying we can only adopt the views that people held 19 two hundred years ago and saying well the Constitution has no 20 meaning and we can throw any idea into it that we want. 21 My view as a historian says we must find the middle 22 ground between respecting the original purposes in general and 23 yet adapting them to the needs of the present. Of course, 24 courts do that all the time. I mean, what did the presidents 25 -- what did Jefferson think about regulation of the airline BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 242 1 industry? I mean, obviously we have to try to adapt those 2 principles to a modern world. And the same thing is true of 3 equal protection and due process and principles, and things 4 like that. 5 You know, I think John O. Franklin testified very 6 interesting about his experience trying to do research for the 7 Brown case and find out the original intent of the framers of 8 the 14th Amendment vis-a-vis school segregation. Of course, 9 they found out they couldn't find it because there were no 10 schools at that time. The South didn't have a public school 11 system. They just had -- they weren't debating 12 intergradation, segregation in a modern sense. There was no 13 public schools system in the Southern states before the Civil 14 War. So obviously that was not a -- you know, we just can't 15 our debates, plunk them down a century ago and look for the 16 opinions of the framers on that. It's unhistorical. 17 Sorry, for that -- 18 THE COURT: I asked the question, I appreciate the 19 answer. I just don't want to step on their cross-examination. 20 BY MR. RICHTER: 21 Q But it's not your opinion, is it, Professor Foner, that a 22 majority of those in Congress intended to allow for preferences 23 in favor of Blacks and other minority groups by approving the 24 14th Amendment? 25 A I honestly don't think that question -- in a narrow BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 243 1 sense, I would say, yes, that was not the main intent to impose 2 preference, what you call preferences, but to allow 3 preferences. I'm not sure I would say that most of them were 4 against that. They -- it depends what you by preferences. Did 5 they want to introduce a quota system whereby every legislature 6 in the land would have a certain proportion of Black 7 representatives? No, obviously not. But did they want to take 8 into account the unique particular history of African-Americans 9 in the country? I think they believed that was a legitimate 10 way of dealing with the legacy of slavery. 11 Q I know we're pressed for time so I'm going to move on. 12 A Okay, thank you. 13 Q In your report I think you mentioned that affirmative 14 policies has been in place in public and private institutions 15 for a generation; is that correct? 16 A Yes. 17 Q Is it your view that such policy should be continued 18 indefinitely in spite of the harms to non minority students? 19 A Well, first of I reject the premise that they have 20 created any harms in non minority students. We have -- at my 21 university we have affirmative action programs at both the 22 undergraduate and graduate levels and I think they have been 23 immense benefit to everybody at that university. 24 I believe that affirmative action frankly is a 25 rather small policy although very valuable that attempts to BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 244 1 deal with very large social policies -- social problems, 2 pardon me. I think they benefit the whole society? And should 3 they continue indefinitely? I don't know quite what that 4 means. But as I say, historians take a long view. We've had 5 three hundred and fifty years of slavery and segregation; 6 therefore, a period -- it may be a long period, it may be a 7 fifty-year period, it may be something like that of 8 affirmative action is not unreasonable given the considerable 9 inequalities that are a result of our history. 10 Q Well, it's been about thirty years since the Nixon 11 Administration, do you believe that affirmative action should 12 be continued in higher education despite the stigmatizing 13 effect that these programs have on minority students? 14 A Well, once again, I don't quite accept the premise of the 15 question. I have a lot of minority students. I don't notice 16 any of them feeling stigmatized. By the way I don't think -- 17 you know, I went to a college, Columbia College which was all 18 male and all white. There was one Black guy in my class, but 19 basically all White. I never met a White student who felt 20 stigmatized because he didn't have to compete with women for 21 example for admission. If women had been admitted into 22 Columbia College as they are today half of those White male 23 students would not have been there. And yet not one of us 24 thought we're getting something, you know, kind of under the 25 table here because we don't really have to compete, we're BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 245 1 getting affirmative action because we're men. Not at all. We 2 felt -- we were qualified and we were, you know, doing the best 3 we could, and we were very happy to be there. 4 If individuals feel stigmatized or more seriously, 5 if White people adopt an attitude that stigmatizes minority 6 students because of affirmative action I think that is most 7 unfortunate and I think there is a social cost in that, no 8 question about it. But I think that cost is a cost that 9 society has to pay for the much greater benefits that 10 affirmative action brings to our society. 11 Q Just one further question. I'm going to read the final 12 page. 13 THE COURT: What is it? 14 BY MR. RICHTER: 15 Q This is an article you wrote in the "Chronicle of Higher 16 Education." Just turn back to the title page. 17 A Right, 1978 -- 18 Q And then if you could turn to the second page. It says 19 "Bakke Reconstructed." It's an article you wrote. I believe 20 it was in your vitae. If you turn to the final page which I've 21 reproduced it here. I'm going to read a portion of this to 22 you. The second column, third paragraph from the bottom -- 23 rather the second paragraph from the bottom. 24 "Yet because" -- and you're speaking of affirmative 25 action policies at higher education -- "Yet because they do BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 246 1 not address the roots of the contemporary black conditions 2 such program to achieve their goals must continue to exist 3 indefinitely. The cost will be high. A permanent distortion 4 of society's perception of black as awards of the state as the 5 growing resentment of the government, bureaucracy charged with 6 enforcement." Did you write that? 7 A Absolutely. 8 MR. RICHTER: No further questions. 9 THE COURT: You've got a couple of minutes. Since 10 your client paid for the report, we've got to give you some 11 time. 12 MR. PAYTON: Do I have a few extra minutes after 13 five? 14 THE COURT: I can't give you too much, but go on. 15 CROSS-EXAMINATION 16 BY MR. PAYTON: 17 Q Good afternoon, Professor Foner. 18 A Good afternoon. 19 Q The first thing I think I want to do since they asked you 20 questions about the report you wrote, that we ought to 21 introduce the report. They asked questions, let's put the 22 report in. We can't have testimony without report. 23 THE COURT: I don't think anybody has any objection. 24 Somebody will mark it later. 25 BY MR. PAYTON: BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 247 1 Q I do have a few questions about our history that I want 2 to ask you. But first I think I want to give you a few minutes 3 to explain the sentence in the article "Bakke Reconstructed" 4 that you were just asked about. 5 A Okay. Well, I'm glad you did because as I've said before 6 taking one sentence out of even a fairly short article can 7 distort the meaning of the article. This article was written 8 when I was teaching at City College in the City University of 9 New York which had just instituted a policy of opened 10 admissions, quite different than the affirmative action program 11 we're talking about here policy, and quite different from what 12 we've heard at the University of California. Basically any 13 high school students who graduated in New York City was 14 guaranteed admission into the City University at that time. 15 This led to a flood of new students both Black and White and 16 others who were the first in their families to go to college. 17 And I was teaching history there, and the point of this article 18 was how our class discussed a class which was very diversed 19 including many non white students and many members of New York 20 City ethnic groups, Italians, Americans, Jews, Irish-Americans, 21 et cetera, how we discussed the Bakke case and why white 22 students and black students seemed to have very different 23 responses to affirmative action. 24 The second sentence that the gentleman didn't read 25 that comes right before this is, "Less I be misunderstood I BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 248 1 personally find the arguments for affirmative action 2 compelling at least as a temporary expedience." Although as 3 I've said "temporary" for a historian may mean a long time to 4 most people. But it was really an article about that debate 5 and how white students felt that they were also -- these were 6 poor students. I mean, these were the lower-class students, 7 both black and white, how they were suffering from 8 disadvantage, and how black students talked about the 9 particular extreme discrimination that their group had 10 suffered over the course of American history. And I basically 11 contrast it over admissions that sort of let all these groups 12 in and just expanded the number of places -- I mean, it 13 tripled or quadrupled the size of the college causing 14 tremendous problems too. And the case of the Bakke case which 15 is not what we're talking about today where they set aside 16 sixteen slots were created at the medical school in California 17 for non whites. They had a quota system so to speak. So 18 basically it was really a discussion of the debate in my 19 classroom and how white -- in a sense it actually reinforces 20 the basic point I was making today, the difference perceptions 21 you get in a classroom when you put white, significant numbers 22 of black and non -- white and non black students together. And 23 how their different histories contribute to different social 24 attitudes. And the underlying point really what everyone 25 things of affirmative action is that was a wonderful BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 249 1 educational experience. I mean, that was a great class 2 because you had enough people of different background that 3 they could honesty and candidly engage each other. If you 4 just had one or two token non whites in there as the City 5 University already did before open admissions you would never 6 have gotten this kind of intense debate with -- really, people 7 are giving views that they know, other people just don't like 8 but in a scholarly way. There were no fist fights or insults 9 or anything. So that's -- I don't want to get into this 10 article. It was twenty-three years ago, but the point is it 11 was an attempt to explain a classroom discussion about 12 affirmative action in the wake of the Bakke case in 1978. 13 Q But all of this is also an example of one of the things 14 you said at the very beginning which is just to stick with 15 white and black for a second, that white Americans view these 16 issues, freedom, equity, differently than black Americans, very 17 differently. 18 A Right. 19 Q And that there is even a misunderstanding of that 20 difference of view point. 21 A Right. 22 Q Okay. One of the most famous Black scholars, the most 23 famous quotations from W. B. Debois, the one that most people 24 that know anything about him know is "The problem of the 20th 25 Century is the problem of the color line." In fact, the BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 250 1 problem of the 19th Century was the problem of the color line; 2 wasn't it, and the problem of the 20th Century and here we are 3 in the 21st Century and it's still the problem. 4 A Yes, and the 18th and the 17th centuries, too. This is 5 our deepest problem as a society. That's not a secret I don't 6 think. There are many people of good will who recognize that 7 and want to try to solve it, but it has such deep roots in our 8 history that it has proven to be very intractable. That doesn't 9 mean it can't be solved, but it seems like it's going to take a 10 long time. 11 Q You were asked some questions about the Civil War and 12 Reconstruction and about the fact that abolitionist movement 13 cause there to be an intergraded movement. And that in the 14 Civil War some white people changed their view of some these 15 fundamental issues. I want to just focus on what didn't happen 16 then because I think project backward and think that it looked 17 like just it does today. Here we are, 1860, 1870, almost 18 complete and total different residential situations, slavery, 19 segregation but almost no intergraded living situations; is 20 that right? 21 A Not entirely actually. I think our society is more 22 segregated today than it was then. I think slavery actually 23 threw black and white into contact with each other inevitably. 24 Not in an equal contact obviously. But you couldn't segregate 25 slaves away from their masters. That would be highly BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 251 1 counter-productive and perhaps dangerous from the point of view 2 of the masters. As many Southern cities were actually poorer 3 people lived near each other. The residential segregation, the 4 rigid segregation that we have in our society today is really a 5 product of the late 19th and then the 20th centuries. It has 6 been reinforced throughout the 20th Century by private action, 7 action of bankers, action of real estate agents, action of 8 federal government. So -- I don't want to get into a -- but 9 segregation is worse today than it was then. 10 Q Actually this is the point I'm getting at: That the 11 things we think about as being fixed, aren't fixed. And the 12 things that we project backwards you have to really check them 13 and that's why we have to have historians. Segregation has 14 become quite rigid, but it's rigid nature in northern cities is 15 in fact post Civil War, actually Jim Crow and post 16 Reconstruction, and it's quite rigid. One of the things that 17 Professor Allen said yesterday was that we don't have a lot of 18 opportunities for interracial contact. He said work is one, but 19 it doesn't happen as much as we like. And higher education is 20 another. If we go back, those opportunities for interracial 21 contact say a hundred years ago, did they exist at all? 22 A Well, maybe a hundred and fifty years. I think in the 23 Reconstruction period there was a lot more possibility for 24 interracial contact than there would be later. I mean, maybe 25 today there is again as you said in higher education, at work BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 252 1 places, although my experience is that even then people at work 2 places tend to separate when they go home. They don't tend to 3 socialize nearly as much with people of different races. Even 4 at colleges we know there's a problem where sometimes people 5 segregate themselves at lunch tables and things like that. But 6 the opportunities for interracial contact are plentiful in some 7 aspects of our society. But I guess what you're driving at, 8 certainly in those two key areas of residence and public 9 schools, K-12, they are very, very limited. Maybe more limited 10 than they were in certain parts in our past. 11 Q And if that's the case then there really is an 12 opportunity that is presented in higher education to sort of 13 fill a gap that has now been created with respect to those 14 opportunities. And as a historical matter I guess I'm asking 15 if I have that right that, in fact, the opportunities 16 historically for the interracial contact which may be quite 17 necessary to have any permanent change in relationship and 18 understanding that those opportunities now may be more 19 concentrated in higher education than they ever have been in 20 the past. 21 A Yes, and also, of course, remember that higher education 22 plays a far greater role in our society than it ever did until 23 the last generation. There are more students today than there 24 are steel workers, or auto workers, or people working in 25 McDonalds. I mean the student population is an immense part of BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 253 1 our society. So this is a great opportunity in a -- that the 2 time of the Civil War higher education was a tiny part of -- 3 the number of college educated people was miniscule at that 4 time. Today it's millions and millions of people. So this offer 5 us an opportunity. It's a big play arena for possibilities of 6 interracial contact. It's not just a side issue. So I would 7 agree with you to just emphasize how a major a place higher 8 education -- a role it does play in our society today. 9 Q You said in your direct testimony that we become wary of 10 race or we became wary of race in Reconstruction. It's almost 11 always the case that we become wary of race; isn't it? I mean 12 it's something that's always with and we try to deny it as 13 often as it's with us. 14 A Well, I guess that means who is the "we"? Unfortunately, 15 non white people cannot become wary of race because it is part 16 of their life all the time and they can't -- it cannot be 17 denied. But I think many white people even -- people who are 18 perfectly good will do get wary. They do not want to have this 19 issue constantly confronting society. 20 Q Isn't this just another example of how that different 21 perspective plays itself out? You said on your direct 22 something like a lot of white people, most white people don't 23 think that race is still a problem. Doesn't that just mean 24 that it's not a problem for them? 25 A It's obviously not a problem for them, but I think it BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 254 1 also just means that they perhaps have not given enough thought 2 and study to this history and also the current social realities 3 of our society. 4 Q Right. And -- 5 THE COURT: Just a couple more. 6 BY MR. PAYTON: 7 Q And just to sort of fill out that point which is we often 8 talk using the terms that I was using in those last two 9 questions about us, our society, we, how things are going, and 10 as I hear your testimony that vocabulary itself is creating 11 some of the problems because there is no we, there is no our 12 society, you have to look at it from the different prospectives 13 of each racial group to really understand how they see 14 themselves, the society, other groups, freedom, this country; 15 is that fair? 16 A Yes, I wouldn't go quite so far to say there is no "we" 17 at all. There is an American "we" and people of all races do 18 share certain things, certain experiences, certain backgrounds, 19 but as soon you start talking about "we" and generalizing about 20 Americans, you immediately have to then start subdividing it 21 into different historical experiences within that overall unit. 22 MR. PAYTON: Thank you, very much. 23 THE COURT: Okay. 24 MR. RICHTER: Your Honor, I don't have anything for 25 recross but since we've admitted Professor Foner's report and BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 255 1 since I've been accuse of taking statements out of context, I 2 would like to move -- 3 THE COURT: Any objection to the article? 4 MR. PAYTON: No. 5 THE COURT: Okay. Thank you, very much, Professor. 6 We appreciate it. Hope we haven't missed up your schedule too 7 much. 8 THE WITNESS: Not at all. 9 THE COURT: We'll stand in recess until tomorrow 10 morning. 11 (Proceedings adjourned, 5:10 p.m.) 12 -- --- -- 13 14 15 16 17 18 19 20 21 22 23 24 25 BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 256 1 2 CERTIFICATE 3 I, JOAN L.MORGAN, Official Court Reporter for the United 4 States District Court for the Eastern District of Michigan, 5 appointed pursuant to the provisions of Title 28, United States 6 Code, Section 753, do hereby certify that the foregoing 7 proceedings were had in the within entitled and numbered 8 cause of the date hereinbefore set forth; and I do further 9 certify that the foregoing transcript has been prepared by me 10 or under my direction. 11 12 ____________________ JOAN L. MORGAN, CSR 13 Offical Court Reporter 14 15 Date: __________________ 16 17 18 19 20 21 22 23 24 25