1 1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN 2 SOUTHERN DIVISION 3 4 BARBARA GRUTTER, For herself and all others 5 Similarly situated, 6 Plaintiff, 7 v. Civil Action No. 97-CV-75928 8 LEE BOLLINGER, JEFFREY LEHMAN, DENNIS SHIELDS, and REGENTS OF 9 THE UNIVERSITY OF MICHIGAN, 10 Defendants. _________________________________________/ 11 12 BENCH TRIAL - VOLUME 11 13 FRIDAY, FEBRUARY 9th, 2001 14 15 BEFORE THE HONORABLE BERNARD FRIEDMAN United States District Judge 16 Theodore Levin United States Courthouse 231 West Lafayette Boulevard, Room 238 17 Detroit, Michigan 18 - - - 19 Appearances: 20 Kirk O. Kolbo, Esq., 21 R. Lawrence Purdy, Esq., 22 On behalf of the Plaintiff, 23 24 John Payton, Esq., Craig Goldblatt, Esq., 25 On behalf of the Defendants Bollinger, et al, 2 1 - - - 2 APPEARANCES (Continued): 3 4 George B. Washington, Esq. Miranda K. S. Massie, Esq. 5 On behalf of Intervening Defendants. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Joan L. Morgan, Official Court Reporter 21 Proceedings recorded by mechanical stenography. Transcript produced by computer-aided transcription. 22 23 24 25 3 1 2 I N D E X 3 - - - WITNESS: PAGE: 4 EUGENE GARCIA 5 Direct Examination (cont.) by Mr. Washington 15 6 Cross-Examination by Mr. Payton 70 Cross-Examination by Mr. Kolbo 83 7 Redirect Examination by Mr. Washington 108 8 DAVID WHITE 9 Direct Examination by Ms. Massie 111 Voir Dire Examination by Mr. Kolbo 118 10 11 E X H I B I T S 12 13 MARKED RECEIVED 14 Trial Exhibits 213, 214, 168 47 Trial Exhibits 218 - 224 149 15 16 17 18 19 20 21 22 23 24 25 GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 4 1 Detroit, Michigan 2 Friday, February 9th, 2001 3 9:10 a.m. 4 - - - 5 THE COURT: One housekeeping matter, Tuesday, I 6 talked to -- not to Judge Keith directly, he's out of town, 7 but through Judge Keith, if we could start at 2:00 o'clock 8 Tuesday. I think it would be much better for all of us. He, 9 as I told you, he has his Annual Soul Food Luncheon and awards 10 and so forth. There will be literally hundreds of people, the 11 Mayor, and all kinds of other people on the floor. It would 12 just really be interfering with his annual luncheon. So, he 13 said 2:00 o'clock is all right. 14 MR. PAYTON: Well, your Honor, I just want to raise 15 several scheduling issues like that. That's actually helpful 16 because I think we all have to figure out how we slot things 17 in. 18 We're filing or have just filed a motion -- my 19 understanding is that the plaintiffs are calling tomorrow, 20 when we're coming here at 8:30 to hear Professor Larntz on 21 rebuttal, that the plaintiffs intend to call Professor Gail 22 Heriot on Monday as their second rebuttal witness. We've just 23 filed, and I have a copy for the court, a motion to preclude 24 her testimony as an expert which we have served. And we would 25 propose that that motion be argued tomorrow, maybe after GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 5 1 Professor Larntz, if that works. It's a very short motion. 2 THE COURT: I have no problems with that. I'll take 3 it home tonight and read it and -- 4 MR. PAYTON: Okay. 5 THE COURT: I'll be more than happy to. 6 MR. PAYTON: Absolutely. Then just looking ahead, 7 the University, the Law School, is going to recall Professor 8 Raudenbush to respond to Professor Larntz. And we're trying 9 to figure out -- 10 THE COURT: I'm not sure I'm going to allow 11 surrebuttal. 12 MR. PAYTON: Here's the position I think -- 13 THE COURT: Otherwise, we'll be going on and on. 14 MR. PAYTON: Well, we certainly don't want to be 15 going on and on. 16 THE COURT: I mean, I don't care. I mean, I've got 17 lots of time for this case, but, I mean, I generally don't 18 allow any surrebuttal, and I only allow rebuttal limited to a 19 very narrow area, and that's the rebuttable areas. 20 MR. PAYTON: This is why this came up to us. It was 21 when we were talking about these issues two weeks. I think we 22 all agreed and Mr. Kolbo stated that on these issues we 23 actually have the burden, that it's our affirmative defense 24 and we have the burden. And I think I then said that if we 25 have the burden, then we ought to look at it in that light. GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 6 1 And we ought then be able to carry our burden and to be able 2 to respond to what they say. So it's almost as though our 3 response is the rebuttal that is the real rebuttal here since 4 it's our burden to this. Professor Larntz is coming back to 5 respond, and I think Professor Raudenbush, he will not be that 6 long, but this is crucial testimony that we think we need to 7 make in order to carry our burden here. I don't think it's 8 going to take more than an hour. 9 THE COURT: Time is really not -- I mean, you still 10 have time. You still have plenty of time. 11 MR. PAYTON: I understand the time, that's why I'm 12 saying -- I don't think it's time -- 13 THE COURT: I didn't mean it in the sense of time. 14 I meant it in the sense of finality. I understand that. 15 MR. PAYTON: I'm just saying since it's our burden, 16 I think the finality is that we should be able to make a 17 rebuttal because it's our burden. 18 THE COURT: What's the plaintiff's position in this? 19 MR. KOLBO: Well, your Honor, we're bringing Dr. 20 Larntz to respond to very specific distinct points. I don't 21 think it's going to take very long. He is responding to 22 something Dr. Raudenbush has already said. I don't know if 23 there has to be a lot of back and forth on this. 24 THE COURT: Well, that's my point is that -- what 25 I'm going to do and I'm going to, of course, limit their GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 7 1 rebuttal only to -- you know, not any new areas, but only to 2 respond to something. Should something come up -- and I'll 3 tell you what my ruling will be right now -- should something 4 come up tomorrow that your expert has to respond, then I would 5 probably allow you. But I'm not going to allow him to go into 6 any other areas -- 7 MR. PAYTON: Oh, no. 8 THE COURT: -- than that which comes up tomorrow. 9 MR. PAYTON: Absolutely. 10 MR. KOLBO: And I'm not going to allow them to go 11 into any other areas other than that which would rebut your 12 expert. It's going to be true rebuttal. 13 MR. PAYTON: I ask for nothing more than what the 14 Court has just said. That's just fine. 15 THE COURT: I have no problem. 16 MR. PAYTON: The scheduling problem is this, that I 17 had misunderstood what was going to happen on Tuesday. And 18 Professor Raudenbush was available Tuesday morning. I see 19 that's not available. So we will try to bring him on Monday. 20 I think we can accommodate that if we can just fit him in on 21 Monday, Monday afternoon if it's just an hour. 22 THE COURT: Sure, and I can work late Monday, too, 23 if you care to, so -- 24 MR. PAYTON: Fine. 25 THE COURT: As long as I know -- as I say, I don't GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 8 1 mind working late ever, as long as I know. So I'll just kind 2 of plan on Monday working late if we have to. Good. 3 MR. PAYTON: Okay. 4 MR. KOLBO: Your Honor, can I just address some 5 scheduling matters, too? 6 THE COURT: Sure. 7 MR. KOLBO: Your Honor, we're just trying to gauge 8 where we think we are to be on scheduling. We had indicated 9 previously had planned to bring and still plan on bringing in 10 Professor Gail Heriot to testify on Monday morning. We 11 thought that would probably be the last, very close to the 12 last day of evidence in this case. It doesn't sound like 13 that's where we are right now. And -- 14 THE COURT: Hold on. Let me -- let's talk to the 15 Intervenors first. Tell me what do you have left? 16 MS. MASSIE: This is what we have left: Today we 17 Dean Garcia, Mr. White, Professor Wu. And then we were 18 thinking Monday, but it sounds like Monday will be taken up 19 with most of -- 20 THE COURT: Dean Garcia -- 21 MS. MASSIE: David White. 22 THE COURT: Okay. 23 MS. MASSIE: Frank Wu. Okay. We were thinking for 24 Monday although it sounds now as if Monday will probably be 25 taken up mostly by other things, Professor Rick Lempert -- GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 9 1 THE COURT: Okay. 2 MS. MASSIE: Faith Smith, Marcus Feldman, and Tania 3 Kappner. 4 THE COURT: Let me just -- I don't know how much 5 time you have left. You only have like eight and a half hours 6 left. So use it any way you want because you're entitled to 7 it, but consider, you know, whatever you have to do, 8 relevance, things of that nature. 9 MS. MASSIE: And, Judge Friedman, on that, you said 10 at the outset that you were prepared to be flexible by several 11 hours on the time limit, and I think we probably will be 12 asking you for several hours to complete our case. 13 THE COURT: I'm very flexible, but I'm not going to 14 -- if things are repetitious or cumulative, I'm not going to, 15 you know, allow that, give you extra time for that. If 16 there's something substantively that, number one, is relevant, 17 and, number two, is not cumulative, I obviously am not going 18 to cut you off for a couple of hours. But think about it. I 19 don't know who these -- I know some of these witnesses because 20 I'm familiar with who they are. Some of them, I'm not, I have 21 no familiarity. But if they're cumulative, then I'm not going 22 to give you any extra time I'll tell you right now. 23 MS. MASSIE: Judge, maybe I can tell you a little 24 bit about them now so that we can have a sense on our side -- 25 THE COURT: That's fair. GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 10 1 MS. MASSIE: David White will be testifying about 2 some aspects of bias on the LSAT which you have not heard 3 about before and saying some things you have not heard 4 previously. I think you have a sense of the general of line 5 of Dean Garcia's testimony. Professor Wu is an expert on 6 Asian Americans in affirmative action. Obviously that's been 7 very much an issue in this case as the plaintiff continually 8 suggests that Asian Americans are victimized by affirmative 9 action. Professor Rick Lempert whom you've heard from, is a 10 fact witness -- 11 THE COURT: I know who he is. 12 MS. MASSIE: He did that study on minority and white 13 grads at the U of M Law School. 14 Faith Smith, is an expert on Native American higher 15 education access and performance issues. I think that's 16 indispensable to this case. There's been no testimony of 17 substance of Native American issues and the challenges Native 18 American particularly face in higher education. 19 Marcus Feldman is a geneticist who will debunk the 20 myth of racial inferiority that is invoked by this case and 21 relied on by the plaintiff. 22 And Tania Kappner is a school teacher from 23 California who can talk about the impact in a direct way about 24 the impact of Proposition 209 on the children she teaches, and 25 what it's done to their levels of hope, performance, energy, GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 11 1 et cetera. 2 Those are our witnesses. And we essentially need to 3 know now that we can put our full case on. I don't think we 4 have too much on cross or rebuttal. I don't anticipate that. 5 Obviously we do need to make a closing statement. But we need 6 to know that we can put our full case on. 7 THE COURT: What's your position? 8 MR. PURDY: I wasn't going to stand and address 9 that, your Honor. I want to stand to address one, I think is 10 just a egregious misstatement. When counsel represents that 11 there has been a theory of genetic inferiority related to this 12 case, plaintiffs have never raised that. We do not take that 13 position whatsoever. And I just want the record to be clear if 14 they're calling Dr. Feldman, I attended Dr. Feldman's 15 deposition, but calling him to debunk the theory of genetic 16 inferiority, it's never been raised. Plaintiffs do not take 17 that position, and I just think that's out of line. It's 18 never an issue in this case. 19 THE COURT: If it's not an issue then there's no 20 reason hearing it. 21 MS. MASSIE: Can I respond briefly? 22 THE COURT: Sure. 23 MS. MASSIE: To us there are two ways you can 24 explain the aggregate differences in academic performance that 25 the plaintiff is relying on. One of them is biology, genetic GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 12 1 differences between the races. And the other is social factors 2 that we're trying to explicate. But in order to make that 3 there is no question in anybody's mind because several 4 witnesses have testified stereotypes of fundamental of racial 5 inferiority are still very much in the air in this culture. 6 We need to make to absolutely sure that those myths are once 7 and forever debunked. 8 THE COURT: It's absolutely clear and plaintiffs 9 have just indicated that in no uncertain terms it's not even 10 close to any theory, so -- 11 MR. PURDY: It's not only not close to a theory, 12 your Honor, we absolutely reject that position. I think we've 13 been clear throughout. I mean, we don't want any 14 misunderstanding about that. I think -- if Dr. Feldman wants 15 to come in -- basically, they're raising the spectrum for 16 reasons I guess only they know, but that simply is not an 17 issue in this case, and plaintiffs do not take that position. 18 THE COURT: Then Dr. Feldman shouldn't be called. 19 It's not relevant -- 20 MS. MASSIE: Judge Friedman -- 21 THE COURT: I've ruled. 22 MS. MASSIE: I understand. Can we have a 23 stipulation then to what everything he's testified to in his 24 deposition and to everything that's in his expert report? 25 THE COURT: No, because it's not an issue. GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 13 1 Plaintiffs have made it very clear, it's not an issue. 2 MS. MASSIE: Judge Friedman, I just have to 3 disagree. The issue in this case is whether black are 4 regarded as fundamentally inferior. 5 THE COURT: You can make a record, but it's not an 6 issue, and I'm not going to allow him to be called unless it 7 becomes an issue. 8 MR. KOLBO: Your Honor, just on the scheduling -- 9 THE COURT: Yes. 10 MR. KOLBO: We're not having court on Wednesday; is 11 that right? 12 THE COURT: Yeah, I can't have Wednesday. Monday, 13 we can go all day. Tuesday, we'll start at 2:00 o'clock. We 14 can go a little bit later on Tuesday. Wednesday, we're not 15 having it, and then the rest of the week, our normal schedule. 16 So -- 17 MR. KOLBO: If I can just mention, I'm kind of 18 thinking out loud here, your Honor -- 19 THE COURT: Sure. 20 MR. KOLBO: As I mentioned earlier, we originally 21 planned to call Gail Heriot on Monday because we thought that 22 would probably be the last or next to the very last day of 23 testimony. It doesn't sound like that's going to be the case. 24 And I think we're going to try this afternoon to see if she 25 can't be called later in the week. I know when I originally GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 14 1 talked to her Mondays and Fridays were the best because of the 2 number of classes she has to cancelled to travel to out here 3 from San Diego. And it may be that she can't come in the 4 middle of the week. We're going to find out if that's 5 possible, and if it isn't possible I may suggest that we call 6 her a little later than Monday of next week. 7 THE COURT: That's fine. Maybe Thursday would be 8 the ideal day. 9 MR. KOLBO: That may be, and it wasn't clear to me, 10 and maybe it's still not clear as to whether we're even going 11 to be here on Friday hearing evidence or not. If that's the 12 case, that might be the best day for it. But -- 13 THE COURT: I'm not sure. From what I'm listening 14 to, as we all know, we never know whether we're going to be 15 here Friday or not hearing evidence. But to accommodate -- if 16 we have to accommodate, we'll be here Friday and that's fine. 17 Again, it's always my desire in terms of litigation 18 to keep the costs as low as we can. If we can finish up on 19 Thursday, and not have everybody spend another day in Detroit. 20 I know it costs a lot of money to both sides to do so, then 21 that would be my preference. 22 MR. KOLBO: We'll check with her as soon as we can 23 this morning, our Honor, and find out if that will work. 24 Thank you. 25 THE COURT: Okay. Any other preliminary matters? GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 15 1 Dean, you're on? Were you suppose to go home last 2 night? 3 MR. GARCIA: Suppose to, yes. 4 THE COURT: At least did they buy you a nice dinner 5 last night somewhere? 6 MR. GARCIA: They did. Thank you, very much. 7 THE COURT: Good. 8 MR. WASHINGTON: Dean Garcia, thank you, very much 9 for staying over. 10 (Witness resumed stand) 11 DIRECT EXAMINATION (CONTINUING): 12 BY MR. WASHINGTON: 13 Q Dean Garcia, yesterday before, as we were concluding I 14 think we were talking about what 209 has meant in the state of 15 California what the end of affirmative action has meant. Do you 16 have in front of you exhibits 213, 14, and 15? 17 A Yes, I do. 18 Q I'd like if you could to turn to those, and as the Dean 19 of the Education School at Berkeley, I think we've gone through 20 what had happened at the University of California at Berkeley 21 after the end of affirmative action. I'd like to go for a 22 moment to the University -- the other -- one of the other 23 nationally famous campuses of the University of California, 24 that being UCLA. If you could, could you turn to Exhibit 214, 25 and tell us in 1995, when you were using affirmative action at GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 16 1 UCLA, how many black students were admitted and enrolled in the 2 freshman class at the UCLA School in Los Angeles? 3 A In 1995, it was two hundred and fifty-nine. 4 Q And that was out of a total class of three thousand five 5 hundred? 6 A That's correct. 7 Q And if you would, five years later, after the end of 8 affirmative action, how many black students total were there in 9 the entering class at the UCLA? 10 A A hundred and forty-seven. 11 Q And on Native Americans, how many students were there at 12 UCLA prior -- when you were using affirmative action? 13 A Forty-two. 14 Q And what did that drop to after the end of affirmative 15 action? 16 A Twelve. 17 Q Twelve in the entire entering class? 18 A In the entering freshman class. 19 Q Incidentally, you mentioned -- how large is the Native 20 American population in the state of California? 21 A It's quite substantive in California. Although we don't 22 have a large number of formal reservations as might be the case 23 in New Mexico and Arizona we do have a fairly large population 24 of Native Americans that are in our urban suburban areas. 25 Q With regard to Chicano students, the city of Los Angeles GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 17 1 as I recall the metropolitan area is now something like ten, 2 twelve, fourteen million people? 3 A Correct. 4 Q What -- just roughly, what percentage of those people in 5 the city of Los Angeles area are Latino? 6 A In the city and let me explain it to the counties since 7 they're a little bit larger, about sixty-five percent of the 8 population of LA County is now Latino. 9 Q So we're looking at maybe eight million or so Latinos? 10 A Correct. 11 Q And you mentioned that there were a hundred thousand -- 12 eighty thousand graduates of high school, Latino graduates of 13 high school in 1995, and up to a hundred thousand in 2000, how 14 many Chicano students were enrolled in the first year class at 15 UCLA while you were using affirmative action? 16 A Bear with me while I find this. 17 Q This is the smallest print -- 18 A Smallest print. 19 THE COURT: You know, we should have blown it up 20 yesterday. We have one of those machines upstairs. 21 MR. WASHINGTON: Oh, we were trying to figure out 22 how to do that. 23 BY MR. WASHINGTON: 24 Q How many -- 25 A In 1995, it's five hundred and forty Chicano students. GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 18 1 Q Now, I take it UCLA draws its student body really from 2 the entire state of California, really from the world. 3 A Right, correct. 4 Q But even sticking for a minute with LA County, out of 5 eight million Latino people in LA County, five hundred and 6 forty were at UCLA in 1995. 7 A That's correct. 8 Q And as I understand it, the population of Latino 9 increased rather dramatically even those five years in Los 10 Angeles. 11 A That's correct, about seven percent. 12 Q In 1999, the last year we have figures available, out of 13 those eight million or so Latinos in Los Angeles County how 14 many entering freshman were there at UCLA? 15 A Three hundred and eighty-four. 16 Q Now there's another category I noticed on here, and I 17 didn't read it for Berkeley called Latino, what is the 18 difference between Chicano and Latino? 19 A This is a -- essentially a way in which students 20 themselves identify themselves. So some students of Hispanic 21 background identify themselves as Chicano, and others identify 22 themselves as Latino. 23 Q And what do those terms mean at least according to the 24 standard definition? 25 A Latino is generally descriptive of all those individuals GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 19 1 who have some Hispanic background, Latin American background, 2 including Mexico. And Chicano, typically identifies those 3 individuals who are born in the United States and are probably 4 of Mexican origin. 5 Q Now, Dean Garcia, you testified yesterday that the 6 University of California was being resegregated after the 7 passage of 209. What effect, if any, have you noticed that that 8 resegregation has had on the climate at the University of 9 California at Berkeley where you are? 10 A I have the opportunity to teach both undergraduate and 11 graduate courses so I come in contact with undergraduates at 12 Berkeley as well as graduate students at my school and other 13 graduate programs at the campus. What we've generally found is 14 that, one, we have attempted to overcome a very negative 15 perception that the University of California, particularly 16 Berkeley, is not welcoming enough, nor interested in bringing 17 students of color to the University. This certainly is true 18 for Latino students. So we an effect essentially a loss of 19 aspirations to go to Berkeley which is unfortunate in many 20 regards. 21 I also have the opportunity to work in the mission 22 district of San Francisco in some of my own research 23 activities. So we have done focus groups and interviews with 24 high school students, Latino high school students, in the 25 Berkeley area, and we see the same thing that on the campus GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 20 1 itself we are likely -- I can likely best describe the climate 2 as one of much more hostile to students than pre affirmative 3 action. I've heard a lot in -- across about the issue of 4 minority students being stigmatized by their coming to a 5 campus as affirmative action. Honestly, have not personally 6 felt that since I am a product of affirmative action to some 7 extent. Nor have I seen this in any of the Latino students at 8 Berkeley. In fact, it's just the reverse. I think the 9 students who are at Berkeley now, Latino students -- I had one 10 student doing a dissertation on this, but her preliminary 11 findings indicate that particularly Latino males, females also 12 report this, have a feeling that the climate is much more 13 negative towards their being on campus. 14 What that means is that they're feeling that people 15 identify them and seem them as individuals who for one reason 16 or another ought not to be there. It is still a feeling that 17 there is something about them, that would characterize them as 18 not being capable of taking on the challenges at Berkeley. 19 So unfortunately, we see the very change to a 20 negative climate on the Berkeley campus. I can't report for 21 any other campus, but for Berkeley, I can. 22 Q With regard to Berkeley you said there was a dissertation 23 underway on that? 24 A Correct. One of my students is actually interviewing and 25 is doing at a focus group with Latinos on the Berkeley campus. GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 21 1 And these are students who have come in post-affirmative 2 action. We wanted to see how those folks were doing. 3 Q And are there preliminary results in on that? 4 A Well, only very preliminary results. We've looked at the 5 -- actually the work done by individuals in this case here at 6 Michigan as a model to do the focus groups, ask the set of 7 questions about climate, et cetera, and we're moving in that 8 direction. And all I can say is the initial interviews with 9 students is that, again, there's this negative climate. 10 Q Now, Dr. Garcia, you mentioned that you had also done 11 some interviewing at the Mission High School in San Francisco. 12 What is the Mission High School? 13 A The Mission High School is situated directly in the old 14 missionary of San Francisco which is predominately now Latino 15 neighborhood or set of neighborhoods. The high school itself 16 is approximately seventy-five percent Latino students, the rest 17 African-American and Asian students. 18 Q And the mission district of San Francisco is that one of 19 the most famous Latino neighborhoods in California? 20 A In the last two decades, the mission district essentially 21 been a mecca for immigrants, particularly Latino immigrants. 22 Q What have you found at the Mission High School in the 23 interviews you've done? 24 A First is the hesitancy of even the best students, Latino 25 students, to consider the University of California. And most GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 22 1 directly to consider UC Berkeley. 2 The only reason that we were there is because the 3 University has now extended outreach activities to schools 4 like Mission trying to override these kinds of very negative 5 perceptions. And, of course, try to encourage students and 6 provide them with information that would allow them to come to 7 the University of California and specifically UC Berkeley. 8 We found early on that the hesitancy of students to 9 believe that we were really there, to try to bring them to 10 Berkeley, or to try to assist them in getting to Berkeley. 11 And then even recently during the admissions process when we 12 provided special assistance, when we provided SAT preparation, 13 we still found a reluctance on behalf of some of the very 14 Latino students to consider taking advantage of those 15 opportunities. 16 Q Now, you also said -- that you heard the argument I think 17 you've been in court when questions have been asked that 18 affirmative action somehow another puts a stigma, supposedly, 19 on Black or Latino students who are in school. Prior to the 20 end of affirmative action at the University of California I 21 assume Latino students would come to you for advice and 22 counseling and whatnot over the years? 23 A That's correct. 24 Q And you worked at, I believe, three different campuses 25 at the University of California. GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 23 1 A That's correct. 2 Q And affirmative action had been present on the 3 University of California campus for how long, sir? 4 A I honestly can't -- ever since I've been there, since -- 5 in the mid '70s. 6 Q In all those times did you ever have a student, a Latino 7 or a Black student come to you and say, Dean, or Professor 8 Garcia, you know, I really feel like I don't belong here, I 9 don't deserve to be here because I got in under affirmative 10 action? 11 A I've never had a student stay that. I've not even heard 12 of a student saying that in all my years at the University of 13 California. 14 Q Dean Garcia, we have -- I assume the administration and 15 the deans and the faculty at the University of California meet 16 from time-to-time to discuss what the effect of 208 has been? 17 A We meet quite often, actually. 18 Q And during those meetings have you ever encountered a 19 person by the name of Professor Heriot talking about what could 20 be done or should be done, or what the effects of 209 have been 21 or anything of that nature? 22 A I have not. 23 Q Now, I don't know if Professor Heriot will testify or 24 not, but one of the -- if you turn back to Exhibit 213 which I 25 think exhibits the downward trend of under-represented GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 24 1 minorities at the UCLA, at Berkeley, at San Diego, Irvine, 2 Davis, and so forth. And really the increase, really on two 3 campuses Santa Cruise and Riverside which you said yesterday 4 would be a temporary phenomenon, Professor Heriot says that -- 5 well, people are really happy down at Santa Cruise and 6 Riverside and why should be flub that up. Do you think that's 7 true? 8 A I honestly think that Santa Cruise and Riverside are very 9 happy to have diversity on their campus so I wouldn't disagree 10 with that. I think those individuals at Santa Cruise and 11 Riverside are, in fact, making tremendous gains in diversity 12 there. 13 Q How about for the students, the Latino students that you 14 know, do they want to go to Berkeley, do they want to go to 15 UCLA, do they want to go to San Diego, and so forth? 16 A What we've learned in our study in 1997, again, we 17 reported, called the Latino Eligibility Study, is that the 18 aspirations of Latino high school students, we did a survey of 19 over a thousand of those students, high school seniors, is that 20 their aspirations in terms of going to the best universities 21 are no different than White students or Asian students. And 22 they want to go to the very best institutions including 23 Berkeley and Los Angeles. They've named them very directly. 24 And so -- where they felt they would get the very best 25 education. So the present sort of lead segregation, GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 25 1 redistribution of students is probably taking place with 2 essentially some deep concern on the part of Latino students 3 that they cannot attend Los Angeles, Berkeley, or San Diego. 4 Q They don't particularly like the University of California 5 being resegregated? 6 A Absolutely not. They would like to have, like any other 7 student, the very best education. And, again, their 8 aspirations is that they would obtain that at the best 9 institutions that the UC has to offer. 10 Q Dean Garcia, another claim in this allegedly expert 11 report is that while there's been a positive impact on grade 12 point averages of Black and Latino students, as a result of 13 being thrown out of UCLA, Berkeley and so forth; is that true? 14 A I don't know. At San Diego, at the conference we had in 15 December, we had representatives from San Diego and they were 16 the campus most deeply concerned about their loss in diversity, 17 and concerned about ways in which they might change their 18 admissions procedure to try to deal with it. 19 They did not report at that conference which we all 20 reported our admissions procedures and how we were doing, that 21 they were having gains in their represented students' GPA. 22 Clearly at Berkeley, we had not had any of those gains. 23 Q How do you know that? 24 A Well, we've done specific analyses at Berkeley. I sit on 25 the Admissions Board, and we look at the SAT scores of incoming GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 26 1 students, and ask whether that has decreased. We look at GPAs 2 of students who have been admitted. And we look at retention 3 issues and graduation issues. It's much too early deal with 4 retention and graduation, but we can look at GPAs. 5 Q Sticking just with the students on the campuses, do you 6 see any good in the consequences of the elimination of 7 affirmative action? 8 A I honestly do not. I do not see anything good at all. 9 Q Would that be true for everybody on those campuses? 10 A I think so. I think in some of the work that my student 11 is doing in her dissertation, she's interviewing White students 12 as well. And we have no reports on the Berkeley campus that 13 affirmative actio is perceived -- the loss of affirmative 14 action and the loss of diversity has resulted, has been 15 perceived as positive by anyone, including the faculty. 16 Q The faculty at the ed school included? 17 A The faculty at the ed school and our -- we're struggling 18 very hard as a faculty to try to deal with the effects, the 19 negative effects of Proposition 209. 20 Q Now, Dean Garcia, I want to move just a minute off the 21 campuses at the University of California, or at least out of 22 the student body. What effect, if any, has the end of 23 affirmative action among -- on admissions had on your ability 24 to hirer faculty, teachers, et cetera? 25 A Well, we had a retreat this summer on campus and we had GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 27 1 an action of behalf of the president just in January which one 2 articulated the tremendous decrease in the hiring of minority 3 of women faculty throughout the University of California 4 system, and specifically Los Angeles, Berkeley and San Diego at 5 the most preferred and most selected campuses. That drop in 6 women hiring is in half, fifty percent of what was post 209, 7 and more than that for minorities. So that the system is quite 8 concerned about this and a set of activities, meetings, 9 initiatives have been launched, a particular task force has 10 been launched to look at this. And the state senate has 11 launched a series of hearings particularly related to the lack 12 of minority women hiring in the University of California. 13 Q How do you see it connected to the end of affirmative 14 action in particularly the end of affirmative action for 15 minority students at these campuses? 16 A Essentially the spiraling staircase, some call it a 17 pipeline, but I like to use the metaphor of staircase because 18 individuals who work hard to climb stairs of higher education 19 essentially reach levels of a professional degree or a 20 doctorate degree, all we've done is narrowed that staircase. 21 People working just as hard, but fewer people are making it 22 through to the top. So we're seeing it less and less numbers of 23 availability to pool the shrinking so that if you minimize the 24 number of under-represented students particularly Latino 25 students coming into a premier university system like Berkeley, GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 28 1 or like the University of California, in particularly Los 2 Angeles and Berkeley where many of our students go on to 3 professional degrees as compared to the other campuses, and 4 many go onto post graduate programs, that you will eventually 5 see that the diversity amongst the faculty will also decline, 6 and that's what we're beginning to see. 7 Q Okay. And what effect, if any does that have on the 8 education of those few minority students who still go to 9 Berkeley or UCLA, or San Diego? 10 A It's been quite documented in the sociological 11 literature, but certainly in my own personal experience, it 12 seems to reiterate that when you have minorities on the campus, 13 you're more than likely to draw other minority students and 14 retention and graduation rates are also at least correlated 15 with the presence of, and the mentoring of minority faculty 16 with minority students. It is an additional assistance for the 17 recruitment and retention. Our efforts in the recruitment of 18 students to Berkeley post 209 has meant every year in the 19 spring I spend about ten hours on the phone trying to reach 20 those individuals who are admitted, particularly Latino 21 students and African-American students, reassuring them that 22 they should come to Berkeley. 23 And why was I selected to do that as oppose to White 24 members of the faculty? Because I can, first of call, I can 25 speak to the parents. On many occasions I have said to the GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 29 1 person answering the phone, buenos noches, and sure enough, 2 it's mom or dad. And I can tell that their son or daughter 3 often come to Berkeley. And I can do it in a language which 4 they understand. In addition to that, I have much more 5 credibility with even African-American students indicated to 6 them that there are -- every, every effort will be made to 7 provide successful opportunities for them. 8 Q Now, Dr. Garcia, you mentioned that it had been shown 9 that the retention and success of minority and Latino students 10 in particular was correlated, had been shown to correlate with 11 the presence of Latino and Black faculty, minority faculty. 12 Can you tell me something about those studies? 13 A These are done primarily in the social science 14 departments, and where we have a large number of minority 15 faculty members. In some cases in the professional schools 16 like education, those areas have been out ahead in terms of 17 hiring minorities and women as oppose to the sciences, the 18 natural sciences. 19 The national data indicate, particularly at the 20 graduate level that were you have minority faculty in graduate 21 programs, who have responsibility for mentoring students, 22 counseling students that the retention rates and the 23 graduation rates of those students and the opportunity for 24 those students to find employment after they graduate is, in 25 fact, enhanced. GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 30 1 Q As far as you know, are those studies more or less 2 undisputed? 3 A As far as I know, they're undisputed. And in my own 4 experience as a dean, and my own colleagues at Berkeley as 5 deans understand this relationship. And is why as deans, as our 6 administration, we try very hard to recruit minority and women 7 faculty recognizing that this will not only help us diversify 8 the faculty, but will probably help us to recruit and retain 9 other minority and women, graduate students and undergraduates. 10 Q Now, you described when we started your testimony 11 yesterday I think what you said was a K through 12 educational 12 system which was in crisis. What effect, if any, has the loss 13 of affirmative action had on the ability to solve that crisis 14 or even begin to solve that crisis in K through 12 education in 15 the state of California? 16 A Prop 209 was very directly aimed at higher education as 17 we cannot use race in admissions, race, gender or ethnicity. 18 We had not been able to enhance the K-12 educational 19 environment. And, of course, it will take tremendous sets of 20 resources to do that. So I have to say the K-12 system has not 21 been able to respond at all to the challenges of providing a 22 competitive group of students who come from diversed, racial 23 backgrounds. 24 Q How about training teachers? What effect, if any, has 25 209 had on that? GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 31 1 It's actually had a bit of a negative effect at our 2 premier institutions, UCLA and Berkeley is that -- even at 3 Berkeley where we try very hard and we have a dean that's 4 deeply committed to all equally qualified individuals come and 5 from diversed background, we are beginning erosion in the 6 number of professional -- participants in professional 7 programs from diversed racial and ethnic backgrounds. 8 Q In terms of people of Latino or African American or 9 Native American backgrounds, has there been any indication as 10 to whether those people return to teach in their communities in 11 some way in greater rate than anybody else? 12 A We have specific data at our campus, Berkeley, and we 13 find that almost a hundred percent of the Latino students 14 graduating return back to serve in Latino schools, Latino 15 segregated schools. And we know from other research that in 16 the medical area, health care, that's also the case. So that 17 in education and at least in the data I know from medical 18 health care, the data we have from the University of California 19 San Francisco that those students do return to their 20 communities. 21 Q But now there's less of them to return. 22 A Less of them. 23 Q Now, Dr. Garcia, you spoke yesterday about the question 24 of stereotypes. First of all, let me ask you, yourself, you're 25 Dean of the School of Education, you've been a professor for GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 32 1 twenty-some years, doctorate degree, post-doctorate studies, 2 are you stereotyped? 3 A Unfortunately, yes, sure. 4 Q Can you tell me just one or two examples of how that 5 occurs? 6 A Well, it's always the case that I find myself in 7 situations where I may be the only minority individual in a 8 situation where there is a substantive set of decisions to be 9 made about whether it's admissions or curriculum, or whatever. 10 I've chaired curriculum committees for the Academic Senate at 11 the University of California. I've chaired departments. I've 12 run national research centers. And in opportunities that I've 13 had to either chair those meetings I sometimes feel that 14 someone is implicating that I may not be capable or not be able 15 to take on those responsibilities. 16 Q How about just in day-to-day life? 17 A I have to admit it varies and it's a lot less, but having 18 just traveled to Southern California and, of course, coming 19 from the Southwest in Colorado, I'm afraid that those kinds of 20 stereotypes still exist and that I'm still a part of that 21 consequence of those stereotypes. 22 This is to my home town in Colorado, I've actually 23 been refused service or at least delayed service in 24 restaurants. Silly things that most people wouldn't pay much 25 attention to. But if you're someone who grew up in that GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 33 1 environment, you attend to those, you can't help but attend to 2 them. And you begin to realize that something's funny here, 3 and what's funny is, that they're responding either to your 4 last name or to your color, and that's unfortunate. 5 Q How about things like cutting grass? 6 A Well, I've had a recent experience where cutting my lawn 7 and a neighbor from a block away stops by and asks how much I 8 charge to cut lawns. As you may know in California, the Latino 9 populations are very employed in the cutting lawn business. 10 And so I'm perceived as someone who cuts lawns. And it's an 11 unfortunate situation, and I tried to explain to this 12 individual that I don't cut lawns. That's about as far as I go. 13 It's a matter of ignorance. 14 Q Dr. Garcia, do you know Dr. Claude Steele? 15 A Yes, I do. 16 Q How do you know him? 17 A Dr. Steele and I were colleagues together at the 18 University of Utah in the Department of Psychology in 1972, to 19 1975. He went to -- he left to go -- to come to Michigan, 20 actually, from the University of Utah, and I went to Harvard 21 for a post doctorate. And we parted ways there, only to be 22 reunited in California where he serves as a colleague at 23 Stanford and, of course, I'm at Berkeley. 24 Q Were you close to him at the University of Utah? 25 A We both were in the same department. I was in GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 34 1 Departmental Psychology, faculty member. He was in social 2 psychology back then. 3 Q And were either one of you hired under any kind of 4 affirmative action plan -- 5 A Both myself and Claude, and his brother Shelby, and John 6 Garcia were hired the same year under affirmative action at the 7 University of Utah. 8 Q And what year was that? 9 A 1972. 10 Q Now, with regard to Dr. Steele, are you familiar with any 11 work he has done on the question of stereotype threat? 12 A Yes, my interest in academic achievement testing both at 13 the K-12 level and at the university level has always led me to 14 keep in touch with Claude's work, particularly the work he 15 began at Utah, and then continued at Michigan and is continuing 16 at Stanford. So I'm aware of his methodologies, his 17 experimental activities in the area of social psychology 18 particularly related to race stereotyping. 19 Q Do you agree with his conclusions? 20 A They're pretty strong and powerful experimental 21 conclusions. They're based on laboratory work, fairly 22 controlled and probably better than we get in the general field 23 of psychology. 24 Q Does that have an effect on performance upon things like 25 standardized tests and grades for under-represented minority GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 35 1 students? 2 A I think his work shows very directly -- as other social 3 psychologists have pointed out -- have society and others 4 perceive oneself, is at least a major factor in determining how 5 you see yourself. And that, in turn, guides the behaviour that 6 you exhibit. 7 His work particularly on standardized tests indicate 8 clearly that the persuasive stereotyping of ability, negative 9 ability in racial minorities and ethnic minorities and women, 10 all three of those, do tend to generate a very interesting set 11 of behaviour when those students are asked to take 12 standardized tests. Many of those tests being used by 13 universities and public schools to make high stakes decisions 14 about entrance, or graduation. 15 Q Can you describe those experiments, what you said you 16 strongly agree with and conclusions? 17 A Claude essentially asked students to take examinations 18 which he previously has identified as these students having 19 done well in. So he uses mathematics examinations either SAT 20 or in California among high school students, PSAT. 21 These are students who are identified by their 22 teachers or identified by previous scores on these tests are 23 doing very well. Then he asks them to take the test again or 24 a sub-test of those items. He indicates to them in general 25 that they are ability tests, they are tests of raw ability. GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 36 1 And in some cases indicates that Blacks, women, Chicanos, 2 don't do very well on ability tests. In other implementations 3 he just indicates they're availability tests and they measure 4 raw ability in these areas. 5 He finds in each of those -- 6 Q When you say he indicates that, meaning he said that to 7 the people who are taking the test? 8 A He says they're ability tests. So he makes that very 9 clear. 10 Q What effect, if any, does that have on the test 11 performance of those students? 12 A Those students do poorly on those tests which have great 13 implications for, again, how students behave with regard to 14 previous perceptions of their own notions ability. 15 Q What conclusion do you and -- what conclusion did he draw 16 from that and what is your review on that? 17 A One very directly -- two conclusions. One is when 18 students are informed directly -- these are students again who 19 again have performed independently well on these examinations, 20 on these similar items. When they're informed directly they do 21 poorer than White students who are given the same kind of 22 indication that they may not do well on these tests. But even 23 if you don't tell that, the indirect notion that these are raw 24 ability tests still produces a differential effect, meaning 25 that African-Americans. And now his work has extended to high GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 37 1 school students in Los Angeles. This has a tremendous negative 2 effect on their performance, on their specific performance on 3 those examinations. 4 Q And the work among Latino and African-American students 5 in Los Angeles, that is showing these kinds of effects on what 6 tests? 7 A On the PSAT in high school. This is in the high school 8 area. His initial work was with college students, both at 9 Michigan and Stanford. And most recently reported this work 10 with high school students in Los Angeles. 11 Q Okay. Now, what is your understanding of the term 12 "stereotype threat"? 13 A Essentially it means that a pervasive out in somewhere is 14 this general feeling -- you asked me do I feel it? And most of 15 us who have lived in a society that uses race, ethnicity or 16 even accents, language accents, dialectics as a way to 17 categorize, deal with ability that, that essentially comes 18 through to the individuals who continually interact with that 19 perspective. And so the general stereotype then of your having 20 the less than capability or ability transforms itself into your 21 own way of behaving, and has a very negative effect on your own 22 performance. 23 Q Okay. And did Dr. Steele perform any kind of experiments 24 to determine whether this could be alleviated in some way? 25 A He tried very much. In other words you can tell students GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 38 1 as I do in my phone calls that you can come to Berkeley and 2 don't worry, we want you at Berkeley. But the general feeling, 3 the general notion is that, well, yeah, but, you know, there's 4 forty percent less, forty-five percent less. I can't believe 5 you. So even when you try to persuade students that this is 6 not the case, that really they're very able and capable, there 7 is just this general feedback, interaction they've been 8 receiving. And Claude tried to make the case that this is 9 long-term. This is not something that you can overturn with 10 test preparation and ego development or something like that, 11 that essentially instills in a student this wonderful feeling 12 of overcoming adversity. This a long-term effect. 13 Q Now, did Dr. Steele -- are you aware of any experiments 14 that he performed where he tried himself to take that threat 15 away in administering the test? 16 A Yes, he did so when a certain set of interventions in 17 which he essentially tried -- for those students who had not 18 performed well, to indicate to them that, in fact, they could 19 perform well, that this was an intervention or a set of items 20 that they were very good at. And even then he found 21 differences between African-American and White students, and 22 women, and males. 23 Q Did he ever present if you know experiments in which he 24 told people this is not a biased test, it doesn't test ability, 25 don't worry about, anything of that nature? GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 39 1 A One of his conditions was exactly that, to try to do 2 that. And still the differential performance was there. 3 Q Now, Dr. Garcia, the question of the threat, the 4 stereotype threat, you said that it was present. Is it 5 particularly present in terms of when students from Black and 6 Latino and other under-represented minority background take 7 high stakes standardized tests? 8 A It's particularly the case when students are either 9 themselves understand or whether someone directly indicates 10 that it's a high stakes test. "High stakes" meaning there is 11 going to be a decision made on your future based on whether or 12 not you do well, or you don't well, that this seems to 13 exacerbate that effect. 14 Q And in your opinion, are the gaps in test scores between 15 White students and Latino and African-American students 16 explained in part by this stereotype threat effect? 17 A It seems reasonable that is at least part of -- that 18 might explain that gap. 19 Q And even in the tests, we've had testimony here about the 20 content, about the tests, and the correlations and so forth, 21 but in the actual taking of the test is there a level playing 22 field between Black and Latino students who are taking those 23 tests and White students who are taking the same test? 24 A At present, no. 25 Q Let me just follow that up. I guess many of us have GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 40 1 taken standardized tests and we all get a little bit nervous. 2 What's different for Black and Latino students? 3 A Well, for one, I would say the issues we've just 4 discussed in terms of your own notions, coming from a number of 5 different sectors in society about your ability to do well on 6 tests. General notions about your intellectual inferiority. 7 Your verbal, mathematical inferiority of that, clearly is 8 something that I think students worry about. White students 9 really don't confront. I don't think any White student, even a 10 poor White student ever confronts that prospective. 11 I say for Latino students, I said earlier that the 12 extensive absence of access to English in a rich domains is 13 another problem, and helps us understand the gap. 14 So I would say putting all those things together, 15 there are differences. It's obvious but the educational 16 experiences of those students as they come to that three hours 17 of testing and all the instruction they may have had or lack 18 of instruction they have had, the quality of the curriculum, 19 the quality of the professors, the care that those individuals 20 might have taken with them, makes it an uneven playing field. 21 Q And would it be fair to say that the phenomenon of 22 stereotype threat as developed by Professor Steele and others, 23 effects someone because of their race or ethnicity, per se, 24 really without regard to whether they're poor or rich, 25 preparation, that kind of thing? GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 41 1 A I would say so, yes. 2 Q Dr. Garcia, just a couple more questions on that. The 3 studies that it sounds like have been done, with college 4 students and on college entrance exams and now on high school 5 students, does it in your opinion change when someone is 6 applying to a graduate or professional school? 7 A I can't imagine it would. 8 Q Why not? 9 A I think as I indicated to you on the campuses those 10 students are on, I don't think that stereotype threat 11 disappears. I don't think it's disappeared from society. I 12 don't think it disappears in the general interactions they have 13 media, whatever. So I don't think it's likely to disappear by 14 the time they're ready for graduate or professional degrees. 15 Q Does your school used the standardized tests to admit to 16 the education school? 17 A We require all students in the University of California 18 to take a graduate record exam. 19 Q When you say "we require" -- 20 A "We" meaning the University of California. 21 Q That you require. 22 A We in the School of Education require it because we're 23 part of the University of California. 24 Q Your hands are tied. 25 A I'm sorry? GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 42 1 Q Your hands are tied. 2 A Our hands are tied. 3 Q Do you pay any attention to the GRE? 4 A I'd have to say directly we try not to pay attention to 5 the GRE. On the other hand I think some of my colleagues and 6 the University faculty because of the culture of trying to 7 access future success does attempt to stay with the standards 8 of the GRE. However, it is not used in any formulated matter 9 to determine admissions into the Graduate School of Education 10 at Berkeley. 11 Q Okay. 12 THE COURT: What's used? 13 THE WITNESS: We use -- we look at the entire file 14 so that we have the GRE scores; we have essays. We require 15 three -- 16 THE COURT: Each individual is treated individually. 17 THE WITNESS: Each individual is treated, yes. And 18 we find that the GRE scores, we did an analysis at the 19 Graduate School of Education, of course, under my direction, 20 but done by my associate dean, that showed no relationship 21 between entering GRE scores and retention at graduation. 22 THE COURT: You used them, however, at least for the 23 pool the people that you like to look at? 24 THE WITNESS: We use them quite honestly because 25 we're required to use them by the University of California so GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 43 1 that -- 2 THE COURT: If you had a choice -- if the University 3 didn't require it -- 4 THE WITNESS: We wouldn't use it. 5 THE COURT: You wouldn't require people to take 6 them? 7 THE WITNESS: No, I wouldn't require them. 8 They do not inform a decision. We try to make a 9 decision that's related to who can best profit from the 10 experience we have to offer them. The GRE doesn't help us. 11 It doesn't add value to that indication. What seems to have 12 most value is the student's own writing and previous 13 educational experience. So we can access their writing -- 14 THE COURT: There are grad schools that don't even 15 require it; isn't that true? 16 THE WITNESS: I'm sorry? 17 THE COURT: There are grad schools that don't even 18 require a GRE. 19 THE WITNESS: Yes, that's correct. 20 BY MR. WASHINGTON: 21 Q In your experience, is the GRE continued to incorporate 22 the same kind of test gaps and discriminatory impact on Latinos 23 an on African-American and Native American students as you've 24 testified about the SAT? 25 A I haven't done individual work myself. I can only report GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 44 1 that others indicate that that's the case. 2 Q Now, just on the issue of standardized test, would you 3 say that the use of standardized tests itself as they exist at 4 this moment, and as they're administered this moment, create a 5 double standard? 6 A Absolutely. 7 Q And who is benefited by that double standard? 8 A Right now at Berkeley and at the University of California 9 it benefits primarily male white students and Asian students. 10 Q Now, just let me -- 11 THE COURT: If you didn't use them, you would 12 eliminate that discriminatory -- 13 THE WITNESS: If we didn't use them -- I haven't run 14 the numbers, but theory -- 15 THE COURT: As an educator, and a person who is 16 obviously is a dean, if you didn't use them, that would 17 eliminate at least one level -- 18 THE WITNESS: That would eliminate at one area that 19 does produce discrimination. 20 BY MR. WASHINGTON: 21 Q Now, Dr. Garcia, just on the question of Asian students, 22 and test scores, and that's the only part here that I want to 23 go into because we've got another witness who will testify as 24 to the particular, but on the test scores, you had mentioned 25 the familiarity with academic English being something that GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 45 1 correlates with performing well on the test. What if, 2 anything, does the experience of the Asian population, and I 3 know that's a large group, but experience, if any, does that 4 have with regard to that conclusion? 5 A At Berkeley we've looked fairly closely into that. About 6 forty-two percent of our entering freshman class is Asian, 7 identified as Asian. But if you break that down, you realize 8 that group does not include Vietnamese students, among 9 students, other Southeast Asian students. So it does not 10 include those. It's primarily Chinese national and Tiawanese 11 student that are first and second generation immigrants coming 12 into the Berkeley campus. 13 When you look at the past experience of those 14 students we find two things that are interesting and that 15 separate them from Latino students in particular which is an 16 area which I do work. One is that most of the immigrant 17 Chinese students have parents that come from schooled 18 background or themselves are schooled elsewhere. 19 Having visited China and looked at their educational 20 system it is a highly competitive educational system. That 21 is, a set of tests are given, a set of levels to indicates who 22 proceeds. 23 That's not true in Mexico by the way, or Latin 24 American countries. You don't go on to the sixth grade based 25 on a test in fifth grade. You, primarily in Latin America, GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 46 1 it's a socioeconomic, who can afford to go to school, goes to 2 school. And those that don't go up to the eighth grade, and 3 that's about it. In China it's a very direct testing. So 4 students do come in with a clear testing culture in their 5 parents or themselves. 6 Secondly, they spend lots of time in mathematics, 7 high entering SAT scores. And entering academic scores, we 8 require an English for the -- an inclusion into the entering 9 freshman class. The University of California is native 10 Chinese students do not do well in English. So they lack depth 11 in English. Where they do very well is in mathematics. So 12 that's what we know of the Chinese Asian students in Berkeley. 13 Q When you say "native" are you meaning persons who are 14 person-second generation, immigrants in the United States? 15 A I would say most of them are actually first or second 16 generation. 17 Q And those students on the SAT English section don't do so 18 well. 19 A They don't do so well, right. 20 Q How about in comparison to the Latino students, how do 21 the Asian students do on the -- Chinese students do on the 22 English part of that exam in regard -- 23 A On the set one across system and at Berkeley, Asian 24 students do a little bit higher than Latino students, and do 25 much less than White students on the verbals. However, they GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 47 1 out-perform Latino and Whites on the mathematics. 2 Q Okay. Now, Dr. Garcia, we have seen and you've described 3 -- and I should by the way, move to admit Exhibits 213 and 214 4 at this point. 5 THE COURT: No objection? 6 MR. KOLBO: No objection. 7 THE COURT: Received. 8 MR. WASHINGTON: And also Dr. Garcia's report and 9 resume which I think is 168. 10 THE COURT: Any objection? 11 MR. KOLBO: No. 12 THE COURT: Received. 13 (Trial Exhibits 213, 214, 168 received into 14 evidence.) 15 BY MR. WASHINGTON: 16 Q Dr. Garcia, you described the tremendous fall and your 17 report describes a tremendous fall in admissions and the 18 overall effects of 209. I assume that this is something that 19 causes you personally a great deal of concern. 20 A Of course it does. I am an individual who probably early 21 on was -- could have been identified as someone who is a non 22 performer, probably likely not someone who would go on to do 23 well in a challenging academic environment, et cetera. And I 24 just know that's an inappropriate identification of students 25 particularly as it relates to the use of achievement tests or GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 48 1 standardized tests. So it's personally discouraging to see 2 this. 3 Q How about on your faculty? How does faculty feel about 4 this? 5 A Oh, they seem to feel the same way at Berkeley. I don't 6 just mean my school, the educational faculty, I think the 7 faculty at Berkeley have reiterated time and time again that 8 the loss of affirmative action has removed a set of 9 opportunities for students to come to Berkeley. 10 Q Do you serve on the admissions committee at the 11 University of California Berkeley? 12 A I set on the admissions board. 13 Q What is the admissions board? 14 A The admissions board is a combination of faculty members 15 who sit on the admissions committee. The admissions committee 16 is made up faculty members. The admissions board is made up fo 17 senior levels of the administration, and the admissions 18 committee. 19 Q This is a policy board of some sort? 20 A It's a policy board. It oversees policies. 21 Q And are there also state-wide meetings of the University 22 of California regarding the subject of admissions? 23 A Of course, yes. 24 Q How frequently does it meet? 25 A We have a faculty committee that meets every month. And, GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 49 1 of course, we have special meetings at least once or twice a 2 year. 3 Q And when was the last one you went to? 4 A The last one I went to was in December of this last year. 5 Q Professor Gary Orfield testified here and said that there 6 were a lot of people working very hard to come up with some 7 other way to admit minority students to UCLA, UC Berkeley, and 8 the other UC campuses; is that true? 9 A That's correct, working very, very hard. 10 Q Has that been true for the last four or five years? 11 A It has been true. 12 Q Have you come up with any other way to do it? 13 A I'm afraid to say we have not. I'm afraid to say we are 14 -- as I said in my first comments we have attempted to try to 15 work with the K-12 system, to solve the problem there. I was 16 -- as I said, I've sat on at least task forces university-wide 17 since the passage of 209. Two of them appointed by the 18 regents, one by the governor to attempt to look at these 19 issues, to look at alternatives, to combine outreach with -- to 20 present plans with procedures that we might relate to changing 21 admissions policies. We've looked up an down the hallway, 22 across the street, and we have worked very hard. We have 23 invested millions of dollars in outreach in the last four 24 years, post 209. I mean hundreds of millions in outreach. 25 I've described the kinds of efforts we're doing on each campus GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 50 1 where the faculty themselves go out. We call. We do everything 2 we can. And you can see the losses have not been anything to 3 be proud of. We have not gotten close to where we were with the 4 use of affirmative action. And it is frightening that we may 5 even continue to lose more ground. 6 Q I'm going to ask you some specifics but what in general 7 is the reason that with all this work and all of this effort 8 and all of this concern you haven't been able to -- the 9 representation of people, the admissions of minority and Black 10 students and Latino students anywhere near where it was, what's 11 the problem? 12 A The problem directly is we've eliminated the opportunity 13 to use race as one variable. Gender, ethnicity is one variable 14 in the determination of qualified students to come to these 15 campuses. These are not unqualified. These are not low 16 achievers. There are not terrible students. We have not found 17 an alternative. We do not control the K-12 system. The 18 University of California has control over its admissions 19 procedures, what it perceives as important in admitting 20 students. And we have not been able to come up with 21 alternative procedures, processes which make up for the loss of 22 that one variable, the use of race and gender and ethnicity to 23 make up that difference. And it's the only thing we can do. 24 We can't control the legislative support of PSATs or SAT preps, 25 or high AT courses in schools that don't have them, honor GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 51 1 courses, or even enhance the quality of teachers. The 2 University of California only produces four percent of the 3 teachers in California. Private institutions produce the 4 majority of our teachers. We don't have the levers to do all 5 the things that others have suggested that we ought to do, but 6 we have been inhibited from using the one thing that we can do. 7 And if anything I would say to you at Michigan don't give up 8 that lever. Don't stop the efforts to help people out, but 9 don't give up that lever. It has been devastating to diversity 10 and cause what I think would be a multi-tiered higher education 11 system in what was once not that multi-tiered in California. 12 Q Why is that factor so important? 13 A It allows us to consider along with all other factors the 14 historical record of set of issues that impinge on the 15 competability of competent -- the ability to compete in this 16 high stakes notion of admissions. When Los Angeles, Berkeley, 17 and San Diego are turning away so many students, it is 18 important to take into consideration both historical, present, 19 and future considerations of diversity in our campuses. It is 20 our mission. It is in our constitution, and we are relieved of 21 the tool that allows us to do that. 22 Q When you were describing K through 12 educational 23 opportunities and grade point, how important is the factor of 24 race in California into determining what kind of opportunities 25 for classwork, for grades, for courses a student receives? GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 52 1 A It's very clear we have a school system that has a one 2 end a very excellent opportunity structure for our students, 3 and at the other end a less than opportune structure. And 4 unfortunately Latino, African-American and American Indians are 5 on the negative side of that curve. 6 Q So a race is a big factor in terms of the educational 7 opportunities, the courses, the grades that students come to 8 the University of California with? 9 A That's true, and we have not even as we've shifted to the 10 focus on socio-economic status as a way to try to rectify this 11 issue. We have not been able to overcome the stereotypic 12 issues, the inappropriateness of achievement tests, and 13 standardized tests. So even when we try to focus on poverty as 14 a primary indicator, and clear our Latino students, our 15 African-American students are majority poor. But these other 16 things we have no control over. We cannot change the way 17 students are perceived and the way they themselves take on that 18 perception and how that relates to performance. 19 So even when we attempt to sort of change of the 20 focus to issues of socio-economic status and poverty we can't 21 escape the social consequences of race and its negative effect 22 on students. 23 Q Professor Foner testified yesterday about how critical a 24 factor race was in our four hundred and some year history, do 25 you see the importance of that factor coming down to us in the GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 53 1 educational system of the state of California? 2 A I directly see it. I see it in the resources that are 3 provided to students both physical and professional. I see it 4 in the effects of individuals that we're preparing as students, 5 who go out and serve those students, who, themselves carry this 6 notion of inferiority, of -- in Espanol we call it peopricito, 7 peopricito syndrome. 8 THE COURT: You'll have to spell that. 9 THE WITNESS: P-e-o-p-r-i-c-i-t-o. 10 A Peopricito syndrome as I've described it essentially is 11 when teachers perceive as student as unable, poor, doesn't 12 speak English and essentially causes a set of expectations 13 which are reduced, a set of curriculum challenges that are 14 reduced, therefore, educational achievement which is 15 essentially rendered lower than that expected of other 16 students. 17 BY MR. WASHINGTON: 18 Q In fact, I meant to ask you that in connection with the 19 question of stereotype threat, is there -- in the educational 20 field is there research to show that the expectations of the 21 teachers, subjective views of the teacher, influence how the 22 students learn? 23 A Powerful research. It began in the 1950s, would show 24 expectations particularly those individuals charged with 25 creating teaching, learning environments can have tremendous GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 54 1 effects on students. 2 Q And I suppose teachers are no different than any of the 3 rest of us in this world. I assume teachers even with the best 4 intentions and sometimes not with the best intentions can 5 perceive students, convey perceptions to students. 6 A Very directly not only their perceptions but what they do 7 in classrooms. So study after study have shown teachers who 8 call less on Hispanic students and Black students whose 9 assignments to them are less than demanding and in that way 10 reaffirms this notion of their expectations to these students. 11 Q Dr. Garcia, sometimes talk about well, let's just throw 12 the test out, or maybe write a new one, would that change this? 13 A No, and, in fact, it's such a deep culture in higher 14 education about independent assessment of students' achievement 15 that even I would not throw the test out. I would try though 16 because we do have a theory of test development, we do know 17 populations, we do know about stereotype threat, we do know all 18 these things now that we didn't know before, before we 19 established the SAT or even high school graduation exams in 20 ways that may be negative to students. There's nothing that 21 prevents us over time in developing the right mechanisms to 22 assess achievement separately and to directly relate that a 23 decision about whether or not that score, or that achievement 24 can add value to a decision as to who can benefit from a 25 challenging higher education. But at present, that's just not GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 55 1 -- we're just not able to do that. 2 Q The tests aren't there? 3 A Just aren't there. 4 Q Tests aren't there, stereotype still is there -- 5 A Right. 6 Q Difference in resources is still there -- 7 A It's still there. 8 Q The difference in courses, the difference in grades, 9 still there? 10 A It's still there, unfortunately. 11 Q This entire system you've described, would you call it a 12 race neutral system? 13 A As it presently exists it is not a race neutral system. 14 Q Do you think there's a double standard in this system? 15 A I think the ways in which we make decisions about who 16 gets in, generates a double standard. 17 Q Tell me specifically some of the things that have been 18 looked at the University of California as substitutes for this 19 critical factor of race and ethnicity? 20 A Very formally we've looked at percent plans, ways in 21 which we can contextualize the identification of students based 22 on the opportunities available at their own schools so that 23 rather than a state-wide eligibility indicator or definition, 24 we've gone to school base definition. That, if we run the 25 numbers we've just started the four percent plan in California, GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 56 1 it will not do much to get us to where we were pre 209, nor 2 over time because the high segregation of students and the 3 large number of small high schools that are predominantly white 4 even when we do contextually based eligibility, it does not 5 increase substantially the number of under-represented minority 6 students who would become eligible automatically to the 7 University. 8 THE COURT: The reason being that the white schools 9 in rural areas and so forth counteract that? 10 THE WITNESS: We're both rural and urban. So all 11 the rural schools, again highly segregated white schools 12 essentially cross off the large number of urban schools that 13 are highly segregated Latino and Black. 14 THE COURT: But they have the similar problem in 15 terms of funding for AT classes and so forth. 16 THE WITNESS: Same kind of problems. 17 THE COURT: So will it even out somewhere down the 18 line? 19 THE WITNESS: What we're doing is diversifying the 20 entering class in terms of urban and rural is what's 21 happening, but we're not doing it in terms of race or gender 22 or ethnicity. 23 BY MR. WASHINGTON: 24 Q And just on that, I know you said there aren't so many -- 25 THE COURT: If you did that -- I think what you're GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 57 1 suggesting is whether -- wherever the school is to make up for 2 the inadequacies to know -- to get the funding and so forth, 3 you would give additional high school points or something for 4 that particular high school, or some kind of formula that 5 would add to their GPA or add somewhere in there to counteract 6 the schools that are wealthy and are able to offer good 7 teachers and ATs and forth. But it doesn't even out so you 8 don't get the minorities and the diversification you'd like. 9 If you use that together with a random draw, then that would 10 at least increase the probabilities and able to have more 11 diversity. 12 THE WITNESS: We raised in my report to the regents, 13 we raised as one possibility a lottery in which students would 14 be selected. It has no support amongst the faculty or amongst 15 the population, amongst the regents. The reason why is that 16 once you start using a lottery and a faculty at any 17 institution will tell you take away the opportunity of the 18 faculty to makes decisions about who comes to their campuses. 19 So that at least in California the use of that solution has no 20 support either amongst the faculty. There's no reality -- 21 THE COURT: It's really interesting. Let me ask you 22 this question: If diversity is so important why would the 23 faculty take a position that it's more important -- as long as 24 all students are qualified -- we're assuming if you even the 25 playing field so to speak, and that's a word we've been using GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 58 1 here, and give those points to those schools that have the 2 less opportunity to give them in any other fashion, whether 3 they be minority or White or anything else, it doesn't make 4 any difference, and the faculty takes the position they don't 5 like it because they're losing their ability to choose the 6 exact students that they want, isn't diversity much more 7 important -- as long as all those students are qualified, than 8 the faculty's ability to be able to say, well, I like that 9 student -- 10 THE WITNESS: Seems like a great idea doesn't it? 11 Here's the faculty's response -- 12 THE COURT: I was surprised the answer was the 13 faculty. I can understand the general population because of 14 the built-in prejudices. I can understand maybe the 15 legislative because they have the same political problem, but 16 I have a hard time understanding the faculty. 17 THE WITNESS: Faculty are on two grounds. One is 18 that the constitution and the faculty are charged with making 19 decisions as it comes to the university so that taking out a 20 way is sort of a philosophical conceptual issue. If you take 21 that away, what are you going to take away next? So it's that 22 one. The second is we have a particular kind of campus at 23 Berkeley. UCLA has another kind of unique -- like I say, at 24 the University of California, we are more of a federation than 25 we are anything else. Each campus has its own expertise, its GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 59 1 own speciality, its own sense of self. And clearly what 2 faculty would argue is we want to make decisions in who comes 3 to this campus based on that unique sense of self and who we 4 are. And we will do everything we can to be 5 non-discriminatory, but a lottery is not -- would fit the bill 6 with regard to these two issues. 7 THE COURT: See, my issue is: If diversity is so 8 important, then give and take -- 9 THE WITNESS: It's a very complicated issue in which 10 diversity is important as is the quality of education, as is 11 rendering a faculty who can provide that. I don't think that 12 our faculty would say diversity is insignificant, but it is to 13 be weighed with a set of other considerations much like -- I 14 have argue that the admissions process, race is not what is 15 going to be the primary factor. It is weighed with a very 16 complex set of variables that determine who can profit from 17 the experience or the challenge of the curriculum at the 18 university. I would say that's basically what the faculty 19 would say. We want diversity, but we take it into 20 consideration along with a set of other variables. 21 BY MR. WASHINGTON: 22 Q Dr. Garcia, there are two areas of ambiguity I want to 23 clear up and we'll talk some more about the specific plans. 24 But as far you know has anybody suggested that admissions into 25 a law school or into a medical school those kinds of schools be GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 60 1 determined by the basis of lottery? 2 A I don't know of any such -- 3 Q Has anybody we've suggested we ought to pick our doctors, 4 or our lawyers, or anybody like that by some kind of lotto? 5 A Not at all. 6 Q Has anybody as far as you know, suggested that we ought 7 to have five percent plans or ten percent plans or anything of 8 those natures for law schools, or medical schools, schools of 9 that nature? 10 A No, I have not. 11 Q The plans we're talking about here then are plans and 12 it's the area you've talked about for undergraduate admissions 13 which is in a certain way not directly the subject of this 14 litigation, but obviously is effected profoundly by it. You 15 mentioned earlier that even the people who are now eligible to 16 apply to the University of California, to all of the campuses, 17 eight, nine campuses, that among graduate Latino students only 18 3.0 percent and among African-American -- I'm going to get the 19 figures wrong, but roughly between three and four percent. 20 A Three to four percent. 21 Q Only three or four percent of those folks are even 22 eligible to apply and I assume among White and Asians it's 23 therefore above twelve and a half percent to get your average. 24 A That's correct. 25 Q And I assume there are more particularly White students, GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 61 1 the higher percentage who graduate from colleges and -- I'm 2 sorry, from high schools across the state. 3 A Correct. 4 Q So even the people who are eligible to apply to for the 5 University of California there's a vast disproportion in favor 6 of white students. 7 A There definitely is, yes. 8 Q So even if you conducted a lottery of the people who sort 9 of met the basic requirements, doesn't come anywhere to making 10 your university look like California, the population. 11 A That is correct. 12 Q Dean Garcia, you've talked about outreach and spending 13 thousands of dollars and as the dean calling people on the 14 phone, to get people to come, what has that done? 15 A Well, you can see at Berkeley, we're not even close to 16 being back to where we were in the pre 209 era. We've lost 17 forty-two percent of under-represented minority students. 18 Q And is that outreach itself now under legal question in 19 the state of California? 20 A Yes, it is, very much so. 21 Q Because of what? 22 A Because of its targeted nature. We have been -- we've 23 interpreted 209 essentially to direct us as a university at 24 least to use race and gender and ethnicity for purpose 25 admission. However, we have tried very, very hard to direct our GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 62 1 multi-million dollar outreach efforts to those students that 2 are identified as under-represented minorities, and to 3 low-income students. 4 Q The court is now saying you can't use race as a factor 5 in admissions or even a factor in outreach. 6 MR. KOLBO: Objection, your Honor, to foundation of 7 that question. It's a legal question. 8 MR. WASHINGTON: He's the dean of education -- 9 THE COURT: He's already answered it. 10 BY MR. WASHINGTON: 11 Q Do you know the phrase holistic -- 12 THE COURT: I have read the case. 13 Q Yes, I do know the phrase holistic file review. 14 THE COURT: I'm sorry, holistic -- 15 MR. WASHINGTON: File review. 16 BY MR. WASHINGTON: 17 Q Now, that's not a happy phrase, but tell me what that 18 means. 19 A That means that for decisions having to do with 20 admissions at least in the university, we look very 21 holistically at a set of variables that we identify into a 22 number of categories, some academic, some non academic, some 23 related to leadership, some related to the circumstance the 24 student may have been in, et cetera. But more holistically an 25 attempt to try arrive at some final decision about whether that GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 63 1 student should be admitted or not admitted. 2 Q Has that plan been tried at the University of California? 3 A It's been tried at the University of California Berkeley. 4 Q And what's been the result of that? 5 A We have -- this is our first entering freshman class 6 using holistic review of all students. And we have not been 7 able to achieve any substantial increase in a number of 8 under-represented minorities at Berkeley. 9 Q Why is that? 10 A All the issues we've talked about before. Issues of 11 whether or we're post 209 getting students to apply. Whether 12 we are still using the SAT in a sort of -- indiscrete or 13 discrete way to deal with final decision. So there are a number 14 of intrinsic variables in the process and the measures we use 15 that essentially not at least yet demonstrated any change in 16 the color, in the nature of the entering freshman class. 17 Q Would it be fair to say that even holistically reviewing 18 the files, the test score gap, the grade point average gap, the 19 score gap, all of those things which you have testified are 20 ineffective with racial prejudice, racial discrimination are 21 still there? 22 A Unfortunately they are still there. 23 Q And even if you look through the whole file and if you 24 can't take race into account, you can't admit enough 25 under-represented minorities. GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 64 1 A We know empirically that's the case, we did not admit 2 more. 3 Q Dean Garcia, I'm going to go back to the Mission High 4 School. Tell me just a minute about that high school again. 5 A It is in the central urban area of San Francisco in part 6 of the valley, the low flat area of San Francisco. This is an 7 area that has essentially been the home for immigrant and 8 minority families, African American, and Latino in the last 9 three to four decades. Prior to that immigrant Irish, immigrant 10 Italians, et cetera. 11 Q What kinds of programs does the Mission -- is the name of 12 the school the Mission High School? 13 A It's called Mission High School, yes. 14 Q What kind of programs does it offer? 15 A It's a comprehensive high school. It intends to just 16 offer a comprehensive set of curriculum which would allow a 17 student to go to the university either any of the community 18 college or CSU or UC campuses. It also provides vocational 19 training. So it's a comprehensive high school. 20 Q How is it on certified teachers? 21 A About thirty percent of its teachers are not certified, 22 that is, do not meet the basic requirements to receive a 23 teaching credential in California. 24 Q How is it on its facilities? 25 A It is the oldest high school, of course, in San GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 65 1 Francisco. And it is -- does not have up-to-date science 2 laboratories. It has only recently been wired for computer 3 access and Internet access. And continues to fall behind 4 resources of other schools in the district. 5 Q How is it on its course offerings? 6 A It does the best it can. It offers aid to now to -- aid 7 to courses required by the University of California and Cal 8 State system, but it does so to a lesser degree than any other 9 high school in San Francisco. And does so significantly less 10 than the more prestigious high school in San Francisco 11 identified as Lowel High School. For example, the number of 12 honors courses is one third less than Lowel. The number of AP 13 courses is seventy-five percent less than Lowel High School. 14 And so the opportunity structures for students attending 15 Mission High School are substantially reduced. 16 Q Are there good students at Mission? 17 A There are excellent students at Mission. 18 Q Trying hard? 19 A They are trying hard, working very hard. 20 Q How many students if you know from that high school were 21 able to go to the University of California at Berkeley entering 22 class last year? 23 A Last year there was none. 24 Q How about the year before? 25 A None. GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 66 1 Q How about the year before that? 2 A None. 3 Q How far is Berkeley from Mission High School? 4 A About fifteen miles. 5 Q Dean Garcia, we've talked a lot about California, 6 California I guess advertises itself and some of us think of it 7 as the future of the nation. Let me stick for a moment to the 8 situation of Latino students. You grew up in the Southwest, 9 New Mexico, in Arizona, in Colorado. The situation you've 10 described for Latino students in California, how does it 11 compare to the situation in Arizona, New Mexico? 12 A It's very similar. 13 Q Texas? 14 A Texas schools, the K-12 crisis is there. 15 Q Florida? 16 A Florida, a little different, but for Puerto Rican 17 students in Florida, the same. 18 Q New York? 19 A They're similar. 20 Q Illinois? 21 A Similar. 22 Q The University of Michigan Law School says it's a 23 national law school. We've had testimony before you came from a 24 Latino student from Chicago. If the University of Michigan 25 drawing people, Latino and Latina students from wherever GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 67 1 they're drawing them in the country, are the schools that 2 they're coming from and the situation they face, in your view, 3 fundamentally different from what you've described in 4 California? 5 A I don't believe so. 6 Q In terms of the effect of the and of affirmative action 7 on undergraduate institutions, let's say it was not at the 8 University of California at Berkeley but in Arizona, New 9 Mexico, Colorado, would it have the same kind of effect in your 10 opinion? 11 A It would have the same effect in highly selective and 12 competitive universities. 13 Q And we know the University of Michigan Law School draws 14 most of its students, many of its students, from those kinds of 15 facilities, those kinds of schools, would the effect of the end 16 of affirmative action be to dry up the supply of those 17 students? 18 A In my opinion over time it's exactly what's happening. 19 Q Now, in your report you said that one of the things you 20 saw as a result of 209, the end of affirmative action in 21 California, has been a rending of the social fabric. What do 22 you mean by that, sir? 23 A What I mean is that a very powerful signal has been sent 24 by Proposition 209 typically with regard to access to higher 25 education, to the premier institutions those revered by all. I GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 68 1 need to point out that a recent survey done by our Office of 2 Development asked citizens of California how they perceive the 3 University of California versus other institutions in the state 4 reiterates that our citizens do perceive the University of 5 California as sort of a higher educational jewel. It is 6 something they revered, support. And that's across by the way 7 ethnic groups, racial groups. What we see essentially in 209 8 is the beginning of unraveling of that perception with regard 9 to higher education at least. I don't know if that's the case 10 in areas of employment, private sector activity post 209, but 11 it's clearly the case that we're seeing in our social 12 institutions, those that serve predominantly minority 13 individuals in California, there's clear indication that 209 14 has separated us instead of any effort to bring us together in 15 the state -- in a state, by the way which is just becoming more 16 diversed every day, and where every effort should be made to 17 bring people together as oppose to separate us. That fabric is 18 beginning to tear in very interesting ways particularly when it 19 comes to our intellectual elites in which our Latino families 20 are beginning to perceive that they no longer have access to 21 that, the bridge to the intellectual institutions that they 22 revere. 23 Q Dr. Garcia, just a couple of more questions. California 24 enacted a ballot proposition which we could argue somewhere 25 else about the wording of that and what the vote was and all GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 69 1 that, but what's being asked here is something much deeper than 2 that. It's being asked that the federal constitution prohibit 3 the use and consideration of race in the admissions of people 4 at the law school by implication anywhere else, what is the 5 message from California as to what that would mean? 6 A In our parlance don't go there. We know the kind of 7 energy, effort extended after. We have lived with that kind of 8 a decision in California, and we will probably live with this 9 mistake for quite some time. If you, in fact, believe that 10 diversity and equity for under-represented individuals in your 11 most elite institutions is something that you embrace, then 12 affirmative action must remain as one of many efforts to allow 13 you achieve that goal. 14 Q Is it an essential effort? 15 A I believe it is an essential effort and the data from 16 California couldn't be clearer. 17 Q Without that effort, would it be fair to say that what we 18 would have was a double standard in admissions, a double 19 standard which favored white students at all levels? 20 A That's what we have in California, and you would have it 21 here. 22 MR. WASHINGTON: I have no other questions for Dean 23 Garcia. 24 THE COURT: Okay. Maybe we should -- remember, 25 we're going to break today around 4:15. I have no other GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 70 1 matters scheduled today other than this case. Why don't we 2 take our morning break now, and we'll take a real fifteen 3 minutes. 4 (Court recessed, 10:50 a.m.) 5 (Court reconvened, 11:15 a.m.) 6 THE COURT: You may proceed. 7 CROSS-EXAMINATION 8 BY MR. PAYTON: 9 Q Good morning, Dean Garcia. 10 A Good morning. 11 Q I want to begin by asking you some questions about the 12 power of racial stereotypes and I want to start with the 13 example you gave of peopricitos. That's a racial stereotype; 14 is that right? 15 A Yes, it is. 16 Q And it's a very negative racial stereotype. 17 A Correct. 18 Q That has the effect of limiting what the possibilities 19 are of the person who is seen in that light; is that correct? 20 A That's correct. 21 Q Can't be more than just peopricito. 22 A That's right. 23 Q And the power of that is that the stereotype is often 24 internalized by the person that is imposed on.'? 25 A That's correct. GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 71 1 Q How does that work? 2 A We essentially being to think of ourselves first and 3 foremost with regard to how other people think of us so that we 4 don't have any internal set of guidelines or signals to 5 determine who we are other than the messages we get from others 6 with regard to we are. So at least theoretically that's how I 7 would argue people take on any attributes of peopricito. 8 Q You gave an example of something that happened to you 9 personally where someone assumed and imposed a stereotype on 10 you and, therefore, assumed that you were a gardner. 11 A Correct. 12 Q And I think you described that as something -- and it was 13 a serious thing, but you described them as rather silly. I 14 think that's just -- and if I'm wrong you just correct me -- an 15 offhand way you sort of deal with these things. It's not 16 really silly; is it? 17 A Right, that's correct, because I get plenty of other 18 signals in other domains of my life that I indicate that I'm 19 much more than a gardner. 20 Q Now, there are racial stereotypes and ethnic stereotypes 21 that are quite negative that are the result of all of our 22 cumulated influences and history; is that correct? 23 A Correct. 24 Q There are also racial and stereotypes that are perceived 25 as positive when they apply to, say, white males; is that GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 72 1 correct? 2 A That's correct. 3 Q Where they are assumed to not be the gardner, to be the 4 person who hired you. And we haven't heard any testimony that, 5 but there groups of people who, in fact, are benefited by the 6 stereotypes that others of them; is that right? 7 A That's correct. 8 Q Are those stereotypes and the images also internalized by 9 the persons that they're projected on. 10 A Oh, I think so. The best data we have in education is in 11 the area of science education where you can look elementary and 12 middle school and high school science classes where teachers 13 essentially call on boys. The expectations are very different 14 for boys with regard to the domain of science so that girls are 15 not often asked to do -- to participate in the science fair, 16 are not called on in physics and chemistry classes and biology 17 classes to perform or to assist the professor or teacher in his 18 activities including minorities are positioned in that same 19 way, in a negative light, not in any intent on behalf of the 20 teacher, but that's just an ongoing stereotype. 21 Q I want to talk a little bit about what Claude Steele has 22 shown here. You described his research on stereotypes; right? 23 When African-American and Latino students take the test that 24 you were describing in a context in which they perceive no 25 direct or indirect threat how do they do? GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 73 1 A They do well. 2 Q And it is when that test is given in a context in which 3 the circumstances communicate them directly or indirectly that 4 they are in a situation where the stereotype says they should 5 not do well, that's when they don't do well. 6 A That's the fascinating part about Claude's data is that 7 it can be direct or indirect, that is, the triggering of 8 something like an ability test, a high stakes ability test. 9 Even though no information is given that African-Americans or 10 women or other minorities do badly on it, that still the test 11 differentials are there and scores. 12 Q I want to switch subjects and I now want to talk about 13 California, and what's been going on in California. Pre the 14 use of race in admissions, we say pre 209, but I take it we're 15 suppose to say pre SP1 and -- 16 A Correct, SP1 -- 17 Q Pre SP1 when race was one of the factors that was taken 18 into account. UC Berkeley and UCLA had much more diversed 19 student bodies; is that right? 20 A That's correct. 21 Q And that was in the context of all of these continuing 22 and awful problems in K through 12; is that correct? 23 A That's correct. 24 Q That some number of Latino and African-American students 25 nevertheless made it through that and managed to get into the GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 74 1 UC Berkeley, UCLA. 2 A Correct. 3 Q And as I understood your description of how the UC system 4 works, only twelve and a half percent of the students in the 5 state are eligible? 6 A That's correct. 7 Q And that eligibility is based upon high school grades and 8 the grades in a specific curriculum? 9 A Correct. 10 Q So all of those Hispanic and Latino and African-American 11 students that go into the UC Berkeley and UCLA prior to SP1 met 12 those eligibility requirements? 13 A That's correct. 14 Q Now, what happened in California post SP1 you've 15 described and I'm going to characterize it in a way that is -- 16 it's bleak; is that a fair characterization? It sounds bleak. 17 A Bleak and frustrating is what I would say. 18 Q That it must continue to be the case that there are still 19 all those academically eligible Latino students and 20 African-American students in California that would have gotten 21 into UC Berkeley and UCLA before SP1 and now they don't. 22 A My best guess is that for Latino students there are 23 actually more of those students. 24 Q But those numbers have gone up although the admittees 25 have gone down. GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 75 1 A Correct. 2 Q So now we have a UC system that has far, far fewer Latino 3 students and African-American students. I'm going to focus on 4 just Berkeley and UCLA where those numbers have dropped 5 according to Exhibit 113 -- 213. I want to ask you as Dean of 6 the School of Education, I want to call on your educational 7 expertise, about what are the consequences of that drop in 8 Latino students and African-American students for those Latino 9 students and African-American students who get in today. So 10 those who got in what are the consequences for them of so many 11 not getting in? 12 A Sure. First I would say I've seen it personally that 13 there is not the same feeling available to them as was 14 available to students pre 209. There's just fewer numbers. And 15 numbers do make a difference. The kind of support systems that 16 you can offer, the kind of support students offer each other 17 essentially diminished because of the numbers. I think 18 secondly I spoke this earlier is the general climate is that 19 209 has generated a climate at Berkeley and Los Angeles -- I'll 20 speak more directly of Berkeley that those students for 21 whatever reasons feel much less welcomed. And less enthused 22 about being at Berkeley than pre 209. So unfortunately the 23 effect has not only diminished the numbers but have negative 24 effects on those students who are there. 25 I would -- it's early to tell, but I can't help but GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 76 1 think that this would have effects on their academic 2 accomplishments at Berkeley, their ability to do well, and 3 secondly their retention and their eventual graduation. 4 Q Let me ask you about their personal education, that is, 5 college is sort of which you pass through on your way to being 6 an adult and independent. And there's more to college than 7 simply going to class and getting grades; is that fair? 8 A That's correct. 9 Q What are the consequences for the Latino students and 10 African-American students in their personal education, and 11 their ability to mature as healthy contributing adults once 12 they graduate. 13 A Keep in mind that Berkeley and UCLA and other selected 14 UCs make no bones about what they're doing in terms of 15 preparing the leadership for the future. So that I think 16 what's a very interesting for our Berkeley students 17 particularly Latino students is that the atmosphere for 18 developing that leadership has changed dramatically. Who they 19 are and what kinds of perceptions they have about the 20 contributions they can make to the state of California, whether 21 it be economically or politically or socially is completely 22 different than during the times of their former colleagues 23 several year ago. 24 Q Let me ask you about the White students. Are there 25 educational consequences for the White students at Berkeley and GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 77 1 UCLA of their being so many fewer Latino students and 2 African-American students among their classmates? 3 A I can speak to levels, one more comprehensively, 4 acknowledging a set of research on the effects of segregation 5 on White students so that when White students are segregated 6 with other White students and no interaction with students of 7 other races, or other ethnic groups, then their own perceptions 8 of themselves and of others, are very different than where is 9 the segregation. That data is not only true in the United 10 States but also in Canada we have ethnic group differences and 11 programs to bring students together to unite them for reasons 12 that have to do with enhancing their own abilities to deal with 13 difference, ethnic difference. So at Berkeley what we're 14 finding among White students -- 15 THE COURT: Let me ask you one question: You said 16 something Canada -- I'm sorry to interrupt you. You said 17 something about Canada. Have you studied -- I don't mean 18 studied, but do you know about Canada? 19 THE WITNESS: I do know a little bit about it 20 because my own work has to do with areas of language and 21 cultural difference. And Canadians deal with issues of 22 francophones and englophones, particularly in Montreal. And 23 the differences that -- the kind of stereotypes they have of 24 each other, the kind of ethnic difficulties they have, and the 25 ways in which they try to integrate those students to try to GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 78 1 overcome those. 2 THE COURT: And what methods do they use -- 3 THE WITNESS: Well, they've used a number of 4 different methods. Everything from making sure that students 5 go to the same schools; that they learn each other's language, 6 that they spend time in each other's families and communities, 7 et cetera to overcome this sort of very negative perceptions 8 -- 9 THE COURT: Do they have anything similar to 10 affirmative action there? 11 THE WITNESS: I don't know if they do or not. I've 12 studied the public schools in Canada. 13 THE COURT: How about -- I don't know anything other 14 than Windsor, which is south of us here, do they have in terms 15 of minority segregation there, if you know, in terms of their 16 schools? 17 THE WITNESS: They do have minority segregation, 18 sure. 19 THE COURT: I'm sorry, I didn't mean to interrupt 20 you, but I had never thought about Canada until you said it. 21 I know I interrupted right in the middle, but all of a sudden 22 the light went, Canada. 23 MR. PAYTON: You know, you have questions, I want -- 24 THE COURT: I really shouldn't. He was right in the 25 middle of a thought. As my daughter used to say when she said GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 79 1 something she shouldn't, she would say, it just fell out. 2 BY MR. PAYTON: 3 Q I'm going to ask you about -- I have an exact term here, 4 but sort of the health of the campus to day versus of the 5 health of the campus before SP1, that is, have you been able to 6 perceive anything about sort of the overall feel of the campus 7 in an educational matter versus -- now versus then. 8 A I think and the chancellor has spoken about this, I think 9 a less diversed campus produces a less intellectually, inviting 10 and less intellectually invigorating campus. So I don't feel 11 out of balance in using some of those words that he's used in a 12 post 209 climate. The loss of diversity particularly 13 under-represented minorities at Berkeley, I think he would 14 argue that -- and I would argue, it produces a less inviting 15 and less intellectually invigorating campus. 16 Q Now, the student body at Berkeley and at UCLA, both of 17 them constrain substantial numbers of Asian students; Isn't 18 that correct? 19 A That's correct. 20 Q Have the Asian students been effected by this, 21 educationally and personally, by this drop in Latino and 22 African-American students, has that effected them? 23 A At least in forums that I've been at, Asian students have 24 expressed the same concern as White students and 25 under-represented minorities is that a diversed campus would be GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 80 1 good for all of them. So I think they would also feel that the 2 quality of the educational experience at Berkeley is lessened 3 by eliminating diversity. 4 Q I want you to take a view as the Dean of the School of 5 Education, and just take a larger view of all of this. What 6 has this meant with respect to the mission of the University of 7 California in particularly its two flagship schools, Berkeley 8 and UCLA, what has it meant for ability of those two schools to 9 accomplish their educational mission? 10 A I believe we're further away from that goal. I don't 11 want you to misread me, I don't think we were achieving that 12 goal in the pre 209 era, but I certainly think we're moving 13 further away from the mission which embarrasses diversity, 14 which the board of regents have articulated as a major goal for 15 the University of California in all its campuses not just some 16 of its campuses. And it's directly related to our 17 constitutional charge that we will serve all the people of 18 California. 19 Q Now, California, I believe this is right, is the most 20 racially and ethnically diversed state in the United States; is 21 that correct? 22 A As far as I know, that's correct. 23 Q It has substantial populations of almost every ethnic 24 group that we have the United States; is that fair? 25 A I believe that's correct. GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 81 1 Q And how has that effected the educational mission of the 2 University of California and especially at its flagship 3 schools, does that cause you to look at your mission 4 differently, adjust your mission, how does that work? 5 A I believe we still attempt to try to understand who it is 6 we're serving. We're a public institution. Certainly an 7 institution supported by taxpayers of California. And our 8 mission is still related to those individuals who reside in the 9 state and essentially support the University of California and 10 all it stands for, in its research, in its teaching, in its 11 scholarship, in its service. And I think we haven't 12 essentially changed our mission. What we've realized is that 13 the demographics of California have substantially moved us in a 14 direction of trying to address that demographic shift. 15 Q Now, California may be the most diversed state in the 16 country, but the entire country is, in fact, more diversed; is 17 that fair? 18 A That's fair it say, yes. 19 Q You were talking about Latino students, you were asked a 20 series of questions about Latino students in Illinois, Texas 21 and Florida. In fact, there are Latino students all across the 22 United States; aren't there? 23 A That's correct. 24 Q And there are African-American students all across the 25 United States. GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 82 1 A That's correct. 2 Q And Asian students all across the United States. 3 A That's correct. 4 Q And I think all of the states are becoming aware of their 5 increasing diversity. 6 A That's particularly true in some states where you would 7 expect that wouldn't be the case, in the midwest and in the 8 southern states. 9 Q And I guess the larger question that this whole case is 10 about is what should the role of higher education be with 11 respect to dealing with that ever increasing diversed 12 population and how it serves that ever increasing diversed 13 population. What are your views on just the larger view of the 14 role of higher education in dealing with our increasingly 15 diversed society? 16 A In general I think higher education has a particular role 17 in the society. It prepares individuals to take on more 18 responsibility in society than the K-12 system does. And, 19 therefore that system of higher education wherever it sits, in 20 whatever state or locale in this country, needs to be 21 responsive to and inclusive of those individuals that are part 22 of the demographics it serves. So as the United States becomes 23 more diverse I think its responsibility is to be responsive to 24 and inclusive of that diversity. 25 MR. PAYTON: Dean Garcia, thank you, very much. GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 83 1 THE WITNESS: Thank you. 2 CROSS-EXAMINATION 3 BY MR. KOLBO: 4 Q Good morning. 5 A Good morning. 6 Q We met last summer. 7 A Yes. 8 Q My name for the record is Kirk Kolbo, and I represent Ms. 9 Grutter in this matter. As Dean of the Graduate School of 10 Education at Berkeley, you're familiar, quite familiar with the 11 racial composition of that school; correct? 12 A Yes, I am. 13 Q In fact, you have responsibility I think you testified 14 for admissions, some responsibility for admissions at the 15 graduate school level; true? 16 A Yes, I oversee admissions. 17 Q And am I correct you consider the Graduate School of 18 Education at Berkeley to be racially diversed? 19 A I do at this time, yes. 20 Q And you consider it be racially diversed with respect to 21 under-represented minorities; correct? 22 A Could be more diversed, but it is more diversed than 23 other units on the campus. 24 Q You would describe as diversed, correct? 25 A I would describe it as diversed. GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 84 1 Q In fact, the under-represented minority population -- let 2 me back up a little bit. When we're talking about 3 under-represented minority population I think there's kind of 4 an understanding in this case what that refers to. I want to 5 make sure that you and I are communicating correctly. We're 6 talking about African-Americans, Latinos, Chicanos, sometimes 7 Hispanics is a designation used here and Native Americans; 8 correct? 9 A That's correct. 10 Q Am I correct that about thirty percent of the student 11 body at the Graduate School of Education at Berkeley consists 12 of those under-represented minority students? 13 A I think this year we dropped about twenty-eight percent. 14 Q Okay. I think when I talked to you in June it was about 15 thirty percent. And this entering year's class is twenty-eight 16 percent. Is that admissions or is that the actual enrollment? 17 A I think it's the actual enrollment. 18 Q Were the admission figures higher -- 19 A No, they were also lower. 20 Q About the same? 21 A About the same. 22 Q And you consider that diversed? 23 A I consider that diversed. 24 Q You'd like to see it more diversed? 25 A I definitely would like to see it more diversed. GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 85 1 Q Is there a level at which you believe it ought to be in 2 terms of the under-represented minority population at the 3 graduate school? 4 A I wouldn't set any goals. I would say that our mission 5 in education in particularly is to generate a set of 6 individuals who can understand the diversity students that they 7 will serve. So I would use that more as a broad brush notion 8 of how we need to move. And clearly a diversed teacher pool, 9 educational and professional pool, serving those students I 10 think is better for those students. 11 Q Am I correct that you believe that the racial diversity 12 with respect to under-represented minorities should probably 13 mirror or reflect the population of California at the education 14 school; is that fair? 15 A I haven't thought about it in that way. And I haven't 16 articulated that either -- 17 Q You do remember taking your deposition in this case, or 18 having it taken, I guess. 19 A Yes. 20 Q Do you have a copy of that? If you would turn to page 91 21 of your deposition. Actually 90 and 91. 22 A Okay. 23 Q And there is a question on page 90, "Do you have an 24 opinion on what is a model diversed campus in terms of certain 25 percentages or proportions?" And you gave an answer -- and GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 86 1 feel free to read the entire answer there. At some point you 2 said, "It ought to be at least somewhat representative of the 3 population of the state." Do you see that there? 4 A Yes, I do. 5 Q And you agree with that? 6 A Yeah, as a model -- but I haven't thought of that in 7 terms of my own work as Dean as whether that's the way we ought 8 to be guided. 9 Q Okay And you have graduates whose education is now, 10 what, four or five years post Prop 209? 11 A Four years, yes, four or five years. 12 Q And I take it that the Graduate School of Education 13 considers itself bound by the requirements of Proposition 209; 14 true? 15 A It does. 16 Q That means that the School of Education in making 17 admission decisions does not consider the race of an applicant 18 to the school; correct? 19 A That's correct. 20 Q You look at a lot of other factors, but you don't look at 21 race; true? 22 A That's correct. 23 Q And you've been able to admit approximately -- around 24 thirty percent of your students being from under-represented 25 minority groups without considering race as a factor in the GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 87 1 admissions process; true? 2 A Correct. 3 Q Am I correct that one of the reasons you've been able to 4 do that is the Graduate School of Education places a lot less 5 importance on standardized tests like the GRE than does say an 6 undergraduate school with respect to the SAT score. 7 A That's one reason, but I'll also created a recruitment 8 team to move out into institutions throughout the United States 9 to recruit in areas in which we could try to bring minority 10 students to the graduate school. 11 Q Right, but in making the actual admissions decision you 12 did not consider the race of those applicants. 13 A That's correct. 14 Q You looked at their individual background, their personal 15 essays, recommendations a lot of other things that are 16 considered but not race; true? 17 A That's correct. 18 Q Have you -- am I correct and I think was made clear from 19 your testimony here this morning or yesterday you participate 20 in making admissions decisions, first of all; true? 21 A Yes, I look at the recommendations made by the faculty 22 and act on those recommendations. 23 Q And you generally as I understand it, your practice is 24 not to give really any consideration to the GRE in making 25 admissions decisions; true? GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 88 1 A Personally in my own field I do not use that. 2 Q And are there other faculty that are of the same mind as 3 you? 4 A I believe there are, yes. 5 Q In making admissions decisions? 6 A Correct. 7 Q Okay. And am I correct that's one way to achieve a more 8 diversed student body with respect to under-represented 9 minorities students is to give less emphasis or no 10 consideration at all to take the GRE in making admissions 11 decisions; true? 12 A I believe so, yes. 13 Q And you have found, am I correct, that you can enroll, 14 admit and enroll a highly qualified, very student body without 15 giving any consideration to the GRE; true? 16 A We haven't done that because we still require students to 17 take the GRE and some of our faculty may use that. What we've 18 done is an analysis whether it does predict success in the 19 school. That's the best I can do. 20 Q And does the GRE predict first-year performance -- or I 21 guess graduate students don't have first year, second year 22 necessarily, but is there some validity to the predictor value 23 of these tests, GREs, for your graduate students? 24 A We've asked that question with regard to how students 25 reach and surpass milestones in the graduate process. We don't GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 89 1 typically do a sort of high stakes first review. We look at 2 the extent to which students complete their course work with 3 the satisfactory GPA at a 3 point or above. For the first two 4 years, we look at whether or not they complete position papers, 5 and they submit their proposal for dissertations, whether 6 that's approved. These are milestones towards final completion 7 of their graduate program. We cannot make any relationship, a 8 positive relationship between the GRE score and the completion 9 of those milestones. 10 Q Okay. But with respect to the GRE, you mentioned, you 11 testified that the state of California requires that they be 12 part of the application; right? 13 A The University of California. 14 Q Right. But you're not required -- you're not aware of 15 any legal requirement that the GRE be given any specific level 16 of consideration in the admissions decision; are you? 17 A That's correct. 18 Q And you, in fact, do not give it any consideration. 19 A I do not. Some of our faculty do. 20 Q Okay. And do you find personally that the students that 21 you admit without any consideration given to GRE scores is that 22 a highly qualified strong applicant pool? 23 A As far as I know, yes. 24 Q Do you have any opinions in this case with respect to 25 whether the LSAT ought to be used in considering applicants to GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 90 1 law school? 2 A My opinions I'd have to say are little further removed 3 than the GRE because I'm not familiar with the LSAT in the same 4 way I'm familiar with the GRE. 5 Q So you don't have any opinions on whether or not -- 6 A I think -- my opinions are further removed. I would say 7 like the GRE if the LSAT has not value in predicting how 8 students will actually do in meeting set milestones in a law 9 school, I would say that, again, I would not recommend use of 10 LSAT. 11 Q You would advise that it not be considered in making 12 admissions decisions? 13 A That's right. Or not be considered in and of itself. It 14 could be used as we use the GRE as one indicator of academic 15 proficiency, but not the sole indicator. 16 Q Well, do you have an opinion that it could also not be 17 used at all in the consideration of applicants just as you 18 don't consider the GRE in the consideration of applicants to 19 your school? 20 A Well, maybe I need to go back a little bit. We certainly 21 take GRE score into consideration, but we don't use it as a 22 predominant feature of a student profile. And so I would say 23 that probably ought to happen at the law school. 24 Q Am I correct that you are of the opinion that there is a 25 correlation between the selectivity of a school and the level GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 91 1 of racial diversity that school might be able to achieve 2 particularly with respect to under-represented minority 3 students? 4 A Only with regard to how we are presently operating at the 5 University of California. 6 Q And at the University of California, the more selective 7 the school is the more difficult it is to proving to admit and 8 enroll a racially diversed student body with respect to 9 under-represented minority students? 10 A In the last four years, yes. 11 Q And that selectivity is based primarily on the 12 consideration -- or one of the criteria on which the schools 13 are highly selective particularly like Berkeley and UCLA and 14 San Diego is with respect to the use of the SAT scores. 15 A Correct. 16 Q And is it your opinion in the ideal world, in your view 17 should Berkeley and UCLA and San Diego perhaps stop considering 18 the SAT score as something that's used in making admissions 19 decisions? 20 A Yes. 21 Q And you believe that those schools could enroll a highly 22 qualified, intelligent, vibrant student body without the 23 consideration of the SAT scores in making admissions decisions? 24 A Without consideration of the SAT scores. 25 Q That's true? GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 92 1 A They may use other achievement score, but not the SAT. 2 Q They could look at a lot of other factors. 3 A A lot of factors. They could look at other tests, but 4 not the SAT. 5 Q But a lot of those schools have just chosen not to do 6 that; true? 7 A That's correct. 8 Q Berkeley, continues to choose the -- administrators at 9 Berkeley choose to rely significantly on SAT scores in 10 enrolling undergraduate students; true? 11 A In the present admissions process the SAT does not have 12 that significant role. 13 Q It has a reduced -- 14 A At UCLA it does, and at San Diego it does. 15 Q And at Berkeley? 16 A It does not. We have a holistic admissions process in 17 which the SAT is one of many variables for all students. 18 Q And you agree in doing it in that fashion. 19 A Yes, I do. 20 Q I'd like to ask you about some of the -- we've spent some 21 time taking a look at a enrollment figures, and I think it's 22 Exhibit 2 -- 213 I want to start with. Am I correct that 23 overall, under-represented minority population in the UC system 24 has declined by one percent in the post Prop 209 era? 25 A That's correct. GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 93 1 Q So much of what has happened is a redistribution of 2 students within the UC system; true? 3 A You might argue that it's happened. Keep in mind that 4 prior to the adoption of 209 that we were actually making 5 gains. One of the things I testified to is that we would 6 actually be further out ahead without the redistribution 7 effect -- 8 Q But one of the explanations is a redistribution; true? 9 A That's a possible explanation. 10 Q And you wouldn't expect to see an eighty-seven percent 11 increase at Riverside, for example, but for the Proposition 209 12 initiative? 13 A I might have seen something close to that. The 14 chancellor of Riverside has been very, very active even before 15 209 in outreach activities. When we conducted our eligibility 16 task force, we visited Riverside. He was new there. This was 17 pre 209. This is in '93, '94. And he was very active and even 18 during those periods was producing gains at Riverside. 19 Q Would you agree that one of the consequences of 20 Proposition 209 is going to increase the ratio and ethnic 21 diversity of Riverside with respect to under-represented 22 minority students? 23 A I think that's possible, yes. 24 Q And do you consider that to be a positive development, 25 Proposition 209? GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 94 1 A I would not consider it a positive development within the 2 context of the losses at the losses at the other campuses. If 3 I were to have seen that eighty-seven percent without the 4 losses, I would consider it positive. 5 Q I'm just focusing right now on Riverside. Is it not a 6 good thing for Riverside that it has a more a rationally and 7 ethnically diversed student body with respect to 8 under-represented minority students, is that a good thing? 9 A I would predict that -- I would say that the faculty, the 10 students and the chancellor of Riverside would say not with the 11 cost of losing diversity at the other campuses. 12 Q Okay. We can talk about cost and benefits, but I'm 13 talking about just the increase in diversity at that school, is 14 that a good thing? I understand there may be a cost, but is 15 that a good thing in itself? 16 A In the broader context of things that has occurred even 17 in your own conclusion at the cost of the lost of diversity at 18 the other campuses. That is not a good thing. 19 Q And for Santa Cruise there's also been an increase in 20 diversity at least part attributable to Proposition 209; true? 21 A It's possible. 22 Q And I think you testified that at some point perhaps in 23 response to questions from Mr. Payton that there are 24 educational benefits associated with a racially and -- an 25 ethnically and racially diversed student body that pours over GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 95 1 to the White students that attend these schools; true? 2 A Correct. 3 Q And would it be true that the White students who are 4 attending Riverside have achieved in your opinion some benefit 5 from having a more racially and ethnically diversed student 6 body with respect to under-represented minority students? 7 A Have they achieved benefits? True, at the cost of the 8 losses of the benefits Whites students at Berkeley, UCLA, and 9 San Diego. 10 Q And you mentioned that there -- is it your opinion that 11 there are probably some under-represented minority students at 12 Riverside who but for Proposition 209 would be at UCLA, 13 Berkeley or San Diego? 14 A Very likely. 15 Q And you mentioned that students have -- Latino students 16 and other under-represented minorities have high aspirations 17 and there are many of them -- maybe it's not only at Riverside, 18 that would prefer to be at one of the more selective schools 19 like Berkeley, Los Angeles, San Diego? 20 A That's correct. I think that's probably true. 21 Q And they may not be there because of Proposition 209. 22 A That's correct. 23 Q Is it also fair to say that there are White students and 24 Asian American students at Riverside who would like also to be 25 at Los Angeles, Berkeley and San Diego? GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 96 1 A That's correct. 2 Q And they're just not there because Los Angeles, Berkeley 3 and San Diego are that much more selective schools. 4 A That's correct. 5 Q So it's true for a lot of folks that are at Riverside or 6 Santa Cruise, they wold like to be somewhere else -- 7 A What's different is that those White students aren't 8 essentially at Riverside at the cost of the loss of White 9 students at the other campuses. I think that's the real 10 critical issue. 11 Q There was some testimony yesterday about the California 12 State University system. I don't remember if you testified 13 whether or not -- has there been an increased level of race and 14 diversity at those schools, California State University system 15 because of Proposition 209? 16 A I believe there has, yes. 17 Q And for those schools is that itself -- I understand 18 there may be cost benefits analysis here, but the increasing of 19 racial and ethnic diversity at those schools, California State 20 University system schools, in terms of under-represented 21 minority students that's a positive thing for those schools; 22 right? 23 A I believe it is positive. 24 Q It's a positive certainly for the for the White students 25 in your opinion who benefit from an increase rationally and GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 97 1 ethnically diversed student body. 2 A Correct. 3 Q I think this clear to everybody but Proposition 209, we 4 talked about SP 1 or 2 -- 5 A SP 1. 6 Q Proposition 209 is in effect because the people of 7 California by majority vote enacted it; correct? 8 A Correct. 9 Q Do you have any knowledge or opinion as to whether there 10 are some private schools in California who have increased their 11 racial ethnic diversity as a consequence of Proposition 209, 12 that is, students attending private schools now in California 13 who otherwise might have been at Berkeley or UCLA or in the UC 14 system? 15 A I have some information about the private schools in 16 California and some schools outside of California that have 17 increased their diversity, and at least argue that they have 18 done so using affirmative action and taking students that would 19 otherwise have gone to Berkeley or UCLA. 20 Q Let me ask you -- I've got some more specifics sort of 21 mundane questions about admissions figures. I wasn't sure this 22 was clear and I want to find out if I'm right about this. 23 Actually there were fewer White students admitted in 2000 at 24 Berkeley than there were prior to the year prior to Proposition 25 209; true? GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 98 1 A I think -- yes, a hundred. 2 Q And there -- am I correct White students are actually -- 3 they're only about thirty percent of the admitted and enrolled 4 population at the University of California at Berkeley. 5 A A little bit more than thirty, yes. 6 Q Seventy percent come from other races and ethnicity. 7 A A little less than seventy -- 8 Q You would certainly describe the Berkeley campus as a 9 racially and ethnically diversed campus; would you not? 10 A It is less ethnically and racially diversed than pre 209. 11 Q Okay. Are you familiar with the racial and ethnic 12 diversity at the University of Michigan? 13 A I'm not. 14 Q Would it surprise you that Berkeley undergraduate campus 15 is more racially and ethnically diversed than the University of 16 Michigan undergraduate campus? 17 MR. PAYTON: Your Honor, I'm going to object because 18 it's misleading. He is including different racial groups in 19 using that term. 20 MR. KOLBO: I'm using all racial groups, your Honor. 21 MR. PAYTON: Not under-represented? 22 MR. KOLBO: All racial -- I asked is it not true -- 23 MR. PAYTON: All right. 24 THE COURT: Go on. 25 BY MR. KOLBO: GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 99 1 Q Is it not true that the University of California at 2 Berkeley is a more racially and ethnically diversed student 3 body -- or would it surprise you that it is more than the 4 University of Michigan College of Literature, Science and the 5 Arts? 6 A It wouldn't surprise me, no. 7 Q In fact, the Asian Americans are actually the largest 8 ethnic group represented at Berkeley; is that right? 9 A That's correct. 10 Q And there are substantially more Asians attending 11 Berkeley today than there were prior to Proposition 209. 12 A That's correct. 13 Q Do you think it's a good thing that there's more Asian 14 Americans represented at Berkeley today than there were five 15 years ago? 16 A I wouldn't have any problem with that. 17 Q You testified a couple of times I think that there are 18 about eighty thousand Latinos and Chicanos that graduate each 19 year from California; is that right? 20 A Yes. 21 Q Do you have any idea how many White students graduate 22 each year from California in the school system? 23 A I don't have the figures here, but we could find out. I 24 don't recall off the top of my head. 25 Q Is it some multiple of the standing population; do you GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 100 1 know? 2 A Yes. 3 Q Would it be twice as much, or three times, any rough 4 idea? 5 A I don't. I'm sorry. 6 Q But for only -- in the year 2000 it's something more than 7 eighty thousand; true? 8 A Oh, yes. 9 Q And in the year 2000, only two thousand four hundred and 10 forty-seven of those students were actually admitted to 11 Berkeley; true? 12 A That's correct. 13 Q The percentage of White students admitted to Berkeley has 14 actually declined, has it not? In the year prior to Prop 209 15 it was about thirty-nine percent and for this last year it was 16 twenty-nine percent? 17 A That's correct. 18 Q I want to ask you some questions about UCLA and to do so 19 I've got a document here that we've pulled off the UCLA 20 website. I can show that to you. 21 MR. KOLBO: If I may approach, your Honor? 22 THE COURT: Yes. 23 BY MR. KOLBO: 24 Q This is a -- I don't know what you call it, a press 25 release or something that's off your webpage, UCLA webpage, GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 101 1 dated November 30th, 2000; do you agree? 2 A Yes. 3 Q Am I correct that at UCLA they're reporting that the 4 African-American enrollment has actually increased, the 5 freshman class has actually increased this year from the past 6 year? 7 A Do you want to say how much? 8 Q It was originally -- am I correct that it was originally 9 -- the year before was 3.7 percent, and this year it's gone up 10 now to 3.8 percent? 11 A Big time. For those of us in education that is holding 12 steady at a time when the population is increasing that's 13 almost losing students. That's clearly the case of Latino 14 students even though this increase -- we've had this discussion 15 within the University -- an increase of less than one 16 percentage point given the twenty percent increase in high 17 school graduates per year is quite frightening actually. 18 Q Am I also correct that the UCLA was reporting that the 19 Chicano and Latino enrollment for freshman had increased from 20 twelve percent last year to 12.8 percent for the fall 2000? 21 A Yes, 12.8 percent. What I need to let you know is that 22 the number of high school graduates has increased by around 23 seven or eight percent. 24 Q And doesn't UCLA report that the number of White students 25 who had enrolled in the freshman class had actually declined GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 102 1 from last fall? 2 A Yes. 3 Q Dean Garcia, you testified I think a couple of times that 4 you I think a couple of times that you have a sense that 5 minority students, under-represented minority students have a 6 sense of not being welcomed at the Berkeley campus? 7 A Correct. 8 Q And I guess you suggested that the reason you believe 9 that's true had something to do with Proposition 209? 10 A It has something to do with it. 11 Q Let's talk about your own direct experience with respect 12 to the Graduate School of Education. Does the Graduate School 13 of Education welcome applications, admissions and enrollments 14 from under-represented minority students? 15 A Yes, we do. 16 Q Just as much as it did prior to Proposition 209? 17 A Yes, we do. 18 Q And is that true as far as you know of the faculty of the 19 Graduate School of Education? 20 A That's true. 21 Q You can't take race into account as a factor in making 22 admissions decisions, we've established that. 23 A Correct. 24 Q But that hasn't made your school any less welcoming to 25 under-represented minority students; has it? GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 103 1 A I think if you ask them they feel it's less welcoming, 2 yes. You're asking about myself as a faculty whether we 3 welcome, I think we have since Proposition 209. I've generated 4 a set of research centers around ethnicity and race in 5 schooling. I've generated a set of mentoring undergraduate 6 teams to ensure that we keep track of retaining 7 under-represented students. Focused specifically on 8 under-represented students. I talk to students at least a 9 twice a semester. They get free pizza if they come and talk to 10 the Dean. What I hear from them is that the graduate school is 11 less welcoming from their prospective after 209. I would have 12 to report their indications. 13 Q Whatever their prospectives are, it's certainly not in 14 your judgment based on anything that the Graduate School of 15 Education is doing. 16 A No, I hope not. 17 Q And is that true also with respect to the other students 18 at the Graduate School of Education, are they welcoming of 19 students from under-minority students? 20 A I believe so. 21 Q Certainly as much today as five years ago? 22 A I believe so. 23 Q Is it fair to say that the undergraduate of Berkeley, the 24 school is welcoming of the application, admission and 25 enrollment of under-represented minority students? GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 104 1 A I think it is, yes. 2 Q And just as well today as it was five years ago before 3 Proposition 209? 4 A Yes, it is. What we're living with is the aftermath of 5 209, and trying to enhance that position with those students 6 that are admitted. And we are under that 209 cloud, and that 7 climate that has come to the campus, we didn't have that 8 climate so that welcoming was clearly of a different sort than 9 it is although I have to admit we're still coming those 10 students. 11 Q When you talk about climate, as far as the climate of the 12 undergraduate school in terms of its official policies and its 13 faculty and its administration, it's not any less welcoming in 14 terms of its climate than it was five years ago -- 15 A Oh, I think the climate has changed. I think that the 16 kind of situation that we're in, is trying to overcome a 17 barrier in many students' mind that they are not welcomed 18 there. So I think that has changed the welcoming climate, if 19 you like the way you're describing it. With the absence of 20 209, it wouldn't be that way. I was there. 21 Q Do I understand that you perceive the same kind of 22 reaction from minority students that you have at the 23 educational school which is that the minority students in your 24 judgment, some of them, many of them, feel less welcomed at the 25 undergraduate school? GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 105 1 A I'd have to say that's true. 2 Q But that is not in your judgment attributable to anything 3 to in terms of the actions and policies of the school 4 administrators, and the policy and the -- 5 A I think it's directly related to the policy dictated by 6 209. 7 Q In terms of not being able to consider race in the 8 admissions process? 9 A That's correct. 10 Q Is it generally known in your judgment that one of the 11 consequences of Proposition 209, is that a student's race 12 cannot be considered in the admissions process? Is that 13 generally well known in your judgment? 14 A I believe it is, yes. 15 Q Is part of the climate that you've described do I sort of 16 get the sense that in your judgment there are a lot of folks at 17 Berkeley, students, faculty who are opposed to Proposition 209? 18 A I believe that's true. 19 Q And they believe that was a negative factor in terms of 20 the school policy? 21 A I believe so, yes. 22 Q I just want to ask you about stereotype threats. You've 23 never conducted any studies on this issue of stereotype 24 threats. 25 A I have not. GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 106 1 Q You've simply done some reading with respect to what 2 Claude Steele has done? 3 A Yes, reading and interactions with Claude and his 4 students. 5 Q Have you made yourself familiar the literature 6 surrounding whatever literature there is surrounding the work 7 that Claude has done? 8 A To some extent. 9 Q Have you read the work of Professor Bernadette Gray 10 Little with respect to Claude Steele's work? 11 A No, I have not. 12 Q You don't understand that she's criticized and disagreed 13 with his finding with respect to stereotype threat? 14 A Oh, I'm not aware of that. 15 Q Do I understand stereotype threat to be a part, that some 16 minority students feel that others except them to perform 17 poorly and as a result they self-fulfill that expectation? 18 A Under certain circumstances, yes. 19 Q And do I understand that part of the stereotype threat 20 has to do with the anxiety associated with high stakes test 21 taking? 22 A I don't if it's with the anxiety, but with high stakes 23 testing. 24 Q You would agree that SAT scores and LSAT scores those are 25 high stakes tests for everyone who takes them; true? GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 107 1 A Correct. 2 Q And in your judgment as an educator that can sort of 3 anxiety, can that effect performance on people's test taking 4 ability regardless of their race sometimes? 5 A Well, a little anxiety is good. A lot of anxiety is bad. 6 MR. KOLBO: May I have a moment to consult a moment 7 with my colleagues? 8 THE COURT: Of course. 9 MR. KOLBO: Your Honor, I would just ask to offer, I 10 don't think it has a number yet, whatever the next number is, 11 the UCLA document that I showed the witness. Other than that, 12 I have no further questions. 13 THE COURT: Does anybody have any objection? 14 MR. PAYTON: None, your Honor. 15 THE COURT: Received. Give us a number later when 16 you get a number. 17 MR. KOLBO: Thank you, your Honor. 18 MR. WASHINGTON: Your Honor, may we take a lunch at 19 this point? 20 THE COURT: I was going to take a lunch break at a 21 quarter to one. 22 MR. WASHINGTON: Could we take a short break at this 23 point? 24 THE COURT: I would be more than happy to take a 25 short break. Okay, we'll stand in recess. GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 108 1 (Court in recess, 12:15 p.m.) 2 REDIRECT EXAMINATION 3 BY MR. WASHINGTON: 4 Q Dean Garcia, if you would refer back to Exhibit 213, 5 please. 6 A Yes. 7 Q As I understand what this exhibit shows and your 8 testimony there's been a dramatic drop in under-represented 9 minorities at the most selective schools in the UC system. 10 A That's correct. 11 Q And that's continued despite all of the efforts at those 12 selective schools to engage in holistic file review and percent 13 plans, and this that and the other thing, it's continued over 14 the course of five years; correct? 15 A I'm afraid so, yes. 16 Q And the increase which Mr. Kolbo suggested at UCLA is 17 really continuing to be a drop given the increase in the 18 population; correct? 19 A That's correct. 20 Q Now, as I understand it, the increase in applications is 21 also making the schools going down this list, San Diego, Santa 22 Barbara, Urbine and Davis, we can expect to see greater drops 23 in that cascade as the years go on. 24 A It will become more selective. 25 Q And the -- as I understand what you're saying, the GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 109 1 description and the cascading effect is going to make these 2 schools become more segregated. 3 A That's correct. Withe a more segregated, we'll have a 4 two-tiered, two color system with the best universities serving 5 different students than our less equipped brothers and sisters. 6 In addition, the cascading will eventually end, and it will 7 move to the Cal states, and move to the community colleges. 8 This is very frightening. 9 Q Okay. Now, there are a hundred and seventy-some odd law 10 schools in the United States. And among there's the University 11 of Michigan and some others which are selective law schools 12 which use the LSAT and grade point. If they were forced to stop 13 considering race would it be your opinion that the students 14 from who are now going to those schools from under-represented 15 minority would then be cascaded down? 16 A From the law schools? 17 Q Yes. 18 A I don't see why the effect we see in selective 19 undergraduates absence of affirmative action would be any 20 different for the law schools. 21 Q And as they cascaded down, the other schools further down 22 that cascade would also being to get more applications until 23 they became more selective. 24 A That's what happened to us. 25 Q Would that in general then result in the two-tiered GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 110 1 system and the cascading effect and the resegregation of the 2 legal profession? 3 A That would be my fear is that your very selective law 4 schools are selective because they are the premiere law 5 schools. 6 MR. WASHINGTON: No further questions, your Honor. 7 THE COURT: Dean, thank you very much for spending 8 the night. 9 THE WITNESS: Thank you. 10 THE COURT: Next witness. 11 MS. MASSIE: We call David White. 12 THE COURT: Please come forward to be sworn in. 13 D A V I D W H I T E , 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 Hello, Mr. White. 19 A Hello, Ms Massie. 20 THE COURT: I'm going to let you lead with this 21 witness and the remainder of your witnesses so we don't have 22 to be cumulative. I don't know if the testimony would be 23 cumulative but -- 24 BY MS. MASSIE: 25 Q So I'll lead and ask you whether you went to Boston GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 111 1 College? 2 A Yes, I did. 3 Q And when did you graduate from law school? 4 A From law school I graduated in 1973. 5 Q Tell us about your career since then. 6 A After graduating from Harvard Law School I traveled in 7 the next few months to Berkeley, California and began working 8 at something called the Childhood and Government Project which 9 was an adjunct of part of Boalt Hall, School of Law. It was a 10 multi-disciplinary organization, drawing from faculty from the 11 law school, from the school of education, and school of public 12 policy. 13 Q And you were there until 1979? 14 A Yes. 15 Q And tell us what you did from 1979, to 1985. 16 A At that point, I was doing a -- directing a study called 17 the law school admission investigation under the auspices of 18 the National Conference of Black Lawyers. And we received 19 funding from the Spencer Foundation of Chicago, Illinois, and 20 the National Institute of Education to evaluate the law school 21 admission test in terms of its validity and its bias. 22 Q And you were the principal investigator for that project? 23 A Yes. We hired staff and we commissioned papers, and held 24 a national conference, and published a book that complied those 25 studies. GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 112 1 Q And in 1985? 2 A In 1985, I founded testing for the public as a non profit 3 education research corporation in California. 4 Q Just tell the Court what Testing for the Public does. 5 A We do research on standardized testing and we also offer 6 low cost test preparation courses on the law school admission 7 test, the graduate management admission test, and graduate 8 record examination. 9 Q Are your programs targeted for any particular racial 10 groups? 11 A As our name implies, our courses are opened to the public 12 but from the inception of Testing for the Public we've always 13 advertised that we were trying to help women and minority 14 students with the standardized tests and as a result of that we 15 have been asked by a number of universities and universities 16 departments to provide test preparation courses particularly 17 for the graduate record examination. 18 Q What universities currently sponsor Testing for the 19 Public courses? 20 A The University of California sponsors courses through 21 five different subdivisions at Berkeley. And the University of 22 California at Santa Cruise sponsors courses. San Francisco 23 State University sponsors courses. California State Fullerton 24 sponsors courses. And for the last several years I have been 25 spending a week in Jamaica, New York teaching a course at York GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 113 1 College which is part of the City University of New York. 2 THE COURT: The California courses are for 3 minorities only, under-represented minorities? 4 THE WITNESS: The ones that are sponsored by 5 universities are under-represented groups. They typically are 6 minority students, but in the field of the sciences they also 7 include females which as you know are very under-represented 8 in those fields. 9 THE COURT: And they're sponsored by the California 10 universities? 11 THE WITNESS: The universities contract with us to 12 offer the courses, yes. 13 BY MS. MASSIE: 14 Q Let me take you quickly through your publications, you've 15 had articles published in the "Harvard Educational Review." 16 A That's correct, twice. 17 Q And you've published a book on the LSAT. You were the 18 editor and director of a series of projects that was a 19 published as a book on the LSAT. 20 A That's right. 21 Q And you published various law review articles on testing, 22 bias, testing validity and with a focus on the LSAT? 23 A That's a correct. 24 Q And then a major research report for the National 25 Conference of Black Lawyers called "The Effect of Coaching, GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 114 1 Defective Questions, and Cultural Bias on the Validity of the 2 SLAT." 3 A That's correct. 4 Q In addition to various test preparation manuals that 5 you've prepared for your students over the years? 6 A Certainly. 7 Q You've also given various academic presentations 8 including the American Association of Law Schools. 9 A Yes. 10 Q The National Institute of Health? 11 A Yes. 12 Q The Society of American Law Teachers? 13 A On several occasions. 14 Q And various other academic presentations mostly again 15 focused the LSAT, but also focused on other tests and the 16 bias-- sources of bias in other tests. 17 A That's correct. My other major focus has been on the bar 18 examination. 19 Q In your published work and also your presentations, and 20 I'll get to your previous testimony before -- your legislative 21 testimony, you focused on national aggregate data as well as 22 question content analysis for particular questions but a whole 23 range of data sets for understanding the validity and bias of 24 tests like the LSAT. 25 A That's correct. GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 115 1 Q Tell us about the legislative testimony you've offered. 2 A I testified before a legislative committees of the New 3 York State, Texas State and California State legislatures. The 4 most recent testimony incorporated some of the material we'll 5 be discussing today which was national information and 6 information at Boalt Hall Law School. 7 Q And you've served as a consultant both to the Florida 8 Supreme Court and to the Department of the Army; correct? 9 A Yes, the Florida Supreme had a major undertaking 10 investigating bias of the judicial and legal system, and they 11 asked me to evaluate the Florida portion of the bar examination 12 which is a multiple choice test. And the Department of the 13 Army was interested in evaluating the armed forces 14 qualifications test. 15 Q In addition to your research, your academic 16 presentations, your consultancies and so on, you have taught 17 many hundreds of students over the years, trained other 18 teachers and logging testing for the public as a research and 19 education non profit. 20 A That's correct. 21 MS. MASSIE: Judge, I would ask that the Court 22 certify Mr. White as an expert on testing on bias issues. 23 MR. KOLBO: Your Honor, I acknowledge that the 24 witness has written on the subject, and has testified in front 25 a public body, but I don't think she's given a foundation that GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 116 1 he has a specialize knowledge and training to testify about 2 test design, psychometrics and test bias. 3 THE COURT: Does he intend to testify as to those 4 three areas? 5 MS. MASSIE: He's going to testify about test bias. 6 He's not a cycle nutritionist, and we're not asking him to 7 testify -- 8 THE COURT: Why don't you lay some foundation as to 9 what his expert -- how he has obtained his expertize. 10 BY MS. MASSIE: 11 Q The publications, and the presentations and the 12 consultancies that we've just gone through all involve the 13 question of bias in standardized testing; correct? 14 A That's correct. 15 THE COURT: How did you obtain the knowledge in 16 order to write these papers and to give the information? 17 THE WITNESS: As I indicated, your Honor, the first 18 knowledge that I had was based on national data about the 19 discriminatory impact of the LSAT particularly compared to 20 undergraduate grade point average. 21 THE COURT: Other persons researched and so forth? 22 THE WITNESS: It was national data that I was 23 evaluating. There was also additional research. I've read as 24 much as I possibly can about the law school admission test. I 25 keep up with the literature on the changes on the law school GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 117 1 admission test. I attend the National Council on Measurement 2 and Education every year. 3 The other way in which I understand bias is through 4 the courses that I offer or where I am talking in particular, 5 person-to-person conversations with students of variety of 6 backgrounds with individual LSAT questions and evaluating how 7 those individual students react to those questions both in 8 terms of accuracy and in terms of interpersonal reactions. 9 THE COURT: It was on-the-job training. You haven't 10 received a degree or haven't studied any specialized study -- 11 THE WITNESS: There would be no place in the country 12 that I would be able to go to study the things I've been able 13 to learn in the test preparation courses. 14 MS. MASSIE: Judge Friedman, if I could, if we can 15 -- the studies that Mr. White will be presenting today, I 16 think there won't be any dispute that he's qualified to 17 testify about them. He directed the work that we'll be 18 presenting today. 19 THE COURT: Any questions you would like to ask? 20 MR. KOLBO: If I could ask him a few questions. 21 THE COURT: Sure. 22 Peer reviews, have you ever had any peer reviews, 23 anybody ever reviewed your work? 24 THE WITNESS: I'm not sure what peer review would 25 mean. They've been published in "Harvard Education Review and GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 118 1 the "Harvard Civil Rights" -- 2 THE COURT: But by you. 3 THE WITNESS: It was submitted for publication by 4 me. It was accepted for publication by three journals at 5 Harvard. 6 VOIR DIRE EXAMINATION 7 BY MR. KOLBO: 8 Q My understanding is that your formal training is you have 9 a BA in English? 10 A That's right. 11 Q And you have a JD, you're a lawyer. 12 A That's right. 13 Q You have no formal training in statistics? 14 A A statistician doesn't know what I know, and I wouldn't 15 need to know a statistician's job to know what I know. 16 Q And I take it you have no formal training in statistics? 17 A No. 18 Q You have no formal training in education? 19 A No formal training, no. 20 Q Do you have any training in psychology? 21 A Not formal training, no. 22 Q Do you have any training in psychometric test design? 23 A That's nothing of concern for my opinions today, no. 24 Q So the answer is you don't? 25 A No. GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 119 1 Q Have you ever worked for one of the testing 2 organizations? 3 A No. 4 Q Have you ever been a consultant for them? 5 A If you consider the Florida State Supreme Court which 6 supervises the Florida Bar Examination which administers the 7 Florida Bar, I would have to say that I was. If you consider 8 the Army which administered the armed forces qualifications 9 test, I would say that I was. The fact is when people look 10 around the country for someone to investigate test bias I under 11 up getting a telephone call and receive a plane flight. 12 Q You don't have access to the data that the testing 13 companies have about whether or not there is bias in testing 14 based on the outcome of the tests they administer? 15 A The test questions are available and the statistics on 16 accuracy for the graduate record examination are available. 17 Q Do you have access to the outcome for the tests, for the 18 LSAT courses administered by Law Services? 19 A Oh, yes, the national data about discriminatory impact of 20 the SLAT is very available. 21 Q Have you ever been qualified by a court to testify as an 22 expert on test design? 23 A This is the first time that I've been called to testify 24 in court. I've usually been an expert for departments and 25 agencies. GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 120 1 Q What formal training have you had for the purpose 2 rendering opinions with respect to test design, standardized 3 test design? 4 A I'm not discussing test design today. 5 Q Are you going to discuss the issue of test bias and also 6 the racial test bias? 7 A Yes. 8 Q What formal training have you had in that area? 9 A As I've indicated before the information that I have is 10 not available in formal training. So that you would not be 11 able to find a professor that knows what I know about the 12 interaction between students and the LSAT items and LSAT tests. 13 Q Do you understand what psychometrics is? 14 A Yes, those are applied mathematicians. They have no idea 15 about psychology. They have no idea about education. They 16 study calculus. They have studied and statistics and they have 17 been hired by a testing company. 18 Q The two fields you said that cycle nutritionists have no 19 expertise in, psychology and education, you have no training in 20 those areas; correct? 21 A No formal training, but the experience that I've had over 22 fifteen years of dealing with students is part of the basis on 23 which I make my opinions. But most of the opinions that I 24 going to be stating are national data which are transparent. 25 MR. KOLBO: Your Honor, I just don't believe this GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 121 1 meets the standards for an expert witness. I make my 2 objection on that ground. 3 MS. MASSIE: Judge, Mr. White has been working on 4 these issues since 1979. He is a nationally recognized expert 5 -- 6 THE COURT: But if the figures as he's indicated are 7 transparent why do we need an expert? 8 MS. MASSIE: There's been testimony to suggest and 9 your own questions have suggested that socio-economic status 10 may be the real problem on the LSAT. We're going to convince 11 with Mr. White's material that it's not. 12 THE COURT: He doesn't have to be an expert. If all 13 these -- he's indicated all he's done is put some numbers 14 together -- 15 MS. MASSIE: He is an expert. "Harvard Educational 16 Review" is a peer review journal. He's been published in it. 17 He's been hired by the Florida State Supreme Court. He has a 18 wealth of experience that clearly qualifies him as an expert 19 under the rules. 20 THE COURT: I'll allow him to testify; however, with 21 the understanding that the plaintiffs -- please make an 22 objection. I'm letting him testify; however in a very limited 23 area. He doesn't have any special education or training -- 24 MS. MASSIE: You are making it perfectly clear that 25 you won't listen to our case on testing bias. He hasn't been GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 122 1 qualified as a court expert before because there's never been 2 this situation before, Judge. We have never been in this 3 circumstance before. It's totally unfair. 4 THE COURT: Please don't yell at me, number one. 5 Number two, throughout the whole you've treated me as the 6 enemy. I'm not the enemy. I have a job to do. I make 7 rulings. Don't yell at me. I don't yell at you, and I would 8 expect that you don't yell at me. I have to make rulings. 9 That's my job. You have a job to present your case. I want 10 to hear it. I'm doing everything I possibly can for all sides 11 to make sure because I want as much knowledge before I decide 12 this case as I possibly can. But I also have a duty and that 13 duty is to follow the rules. I'm not the enemy, and I don't 14 appreciate you yelling at me like that. Go on. 15 MS. MASSIE: Judge Friedman, I apologize for raising 16 my voice. You promised at the outset of this case after Erika 17 Dowdell testified that you wanted to listen that we had to 18 present with an open mind. What you have just said about Mr. 19 White's expertise given the obvious and undeniable character 20 of his expertise to me indicates that you will not be 21 listening with an open mind to the things that he has to teach 22 all of us in this room about the SLAT. And they are critical. 23 They are imperative for our case. We can't make our case 24 without making that case. 25 THE COURT: First of all if I conveyed that to you, GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 123 1 I apologize. I only make rulings based upon what I hear. 2 That's my job. That's what I'm supposed to do. And it's not 3 a personal ruling. It's not personal to you or personal to 4 your case, or personal to Mr. White. But we have rules. You 5 would like to present your case, but you're going to present 6 your case just like the plaintiffs are and just like the 7 defendants are within those rules. And if you believe that my 8 rulings are indication of the outcome of this case or anything 9 of that nature you're just absolutely wrong. But you're not 10 going to take those rulings and try because of the tone of 11 your voice to intimidate me because I won't be intimated. I'm 12 going to make the rulings the way I feel. I have already 13 ruled that I'm going to let him testify. I have already ruled 14 that if the plaintiff believes he's gone beyond his expertise 15 that they'll make an objection, and I will rule upon that 16 objection. 17 MS. MASSIE: I don't take it personally on my own 18 behalf, Judge. It's the students I represent who need this 19 information out there. 20 THE COURT: As lawyers we all represent clients. But 21 we all also do two things: Number one is we all have to 22 follow the rules. Number two, we have to abide by those 23 rules. 24 Let me say no more. We'll stand in recess until 25 2:00 p.m. GRUTTER -v- BOLLINGER, ET. AL. 124 1 (Afternoon session) 2 -- --- -- 3 COURT CLERK: Please rise. 4 THE COURT: Thank you. You may be seated. 5 You may proceed. 6 MS. MASSIE: Thank you, Judge. 7 Judge, if you don't mind, I would like to take a 8 step back and lay a little bit more of a foundation than I 9 did before on Mr. White's expertise. 10 THE COURT: Sure, you can, however, I'm going to 11 allow him to testify, as I indicated to you before, but if 12 you want to put more in. 13 MS. MASSIE: If I could, just briefly. 14 THE COURT: Sure. 15 DIRECT EXAMINATION (Continued) 16 BY MS. MASSIE: 17 Q Mr. White, how many experts on testing bias are there 18 in the country today? 19 A I don't have a definition of what a testing bias 20 expert would be, but I said before that when institutions 21 of government look to see how tests can be evaluated from a 22 potential bias, I find out that they end up calling me. 23 I have dealt with other people on these panels and I 24 certainly consider those to be experts, as well, but there 25 is obviously not a company that does test bias, and it's not 125 1 surprising that there are companies that make tests that 2 would not hire test bias experts, although they certainly 3 are interested in it. 4 But it's a question of recognizing that there is 5 a problem from a different perspective of a tester, and 6 actually, frankly, a little from a different perspective 7 from people who call themselves psychometricians, who I 8 have great respect for in terms of mathematical ability. 9 They can do a lot of things that I can't in terms of 10 mathematics. 11 Q So in other words, the Texas, New York and California 12 Legislatures didn't contact the testing companies themselves 13 because the testing companies have an interest in not saying 14 that there is bias, so if the Legislature is interested in 15 bias -- 16 A Well, that's the whole point, that the Legislature was 17 interested, and the Committee on Higher Education held an 18 interim hearing where the first witness was the President 19 of the Law School Admission Council Board of Trustees, 20 Professor Gerald Torres, and the next witness was me. 21 And so they wanted to hear both sides and I was 22 the person that they decided that they should fly out to 23 Austin to hear from. And they heard from other experts, as 24 well. They heard from the co-author of Claude Steele, who 25 is Dr.-- 126 1 Q Aaronson? 2 A Aaronson, Joshua Aaronson, who testified right after 3 I did about the stereotype threat. And so I find that when 4 people ask about this, that they end up asking me. They 5 certainly end up asking other very qualified people, 6 as well. 7 Q And the Florida State Supreme Court, the American 8 Association of Law Schools, all the other entities that we 9 went over before, those are all entities, governments, 10 governmental bodies, et cetera, which invited you? 11 A That's right. 12 Q Which requested that you come explain something to 13 them about bias and testing? 14 A That's right, including the General Counsel's Office 15 of the Department of the Army. 16 Q And so it's fair to say that those people recognized 17 you as one of the foremost national experts on bias in 18 testing and in particular, again, on the LSAT? 19 A I'd like to think so. 20 Q Can you tell us about your testimony for the Florida 21 State Supreme Court, just very briefly? 22 A Well, you mean the Texas Legislature? 23 Q Well, I -- 24 A Oh, I think the Florida State Supreme Court was 25 actually a very interesting thing, where we got to look at 127 1 Bar examination questions. As I mentioned, there were two 2 psychometricians, and there was Dr. Mary Hoover, who had 3 taught at San Francisco State and taught at Stanford, is 4 now teaching at Howard University, and is an expert in 5 linguistics and psychology and education, and a man who was 6 Cuban and who had been trained as a lawyer, but he left just 7 in the nick of time, according to his flight, and moved to 8 New York and became a professor of romance languages, and it 9 was very interesting to see after that long a time not being 10 a lawyer that he still sounded like one when he looked at a 11 bunch of the Bar examination questions. But that's what 12 they did, is they looked at questions that they thought 13 might have some psychometric qualities that were 14 questionable. 15 And they asked the panel of us, including another 16 African American lawyer who had obviously passed the Bar in 17 Florida and was a very sharp character, to see what they 18 thought might be going on in terms of the items themselves. 19 And this is the sort of thing that psychometricians suggest 20 on a regular basis when they evaluate test bias. 21 Q And how did you first get involved in the field of 22 testing bias? 23 A I ended up in an interesting place at the right time. 24 I graduated from law school in 1973 and moved to Berkeley 25 to work on the Childhood and Government Project. I was 128 1 doing research essentially on the Griggs versus Duke Power 2 Company, which I'm sure Your Honor has heard of, which was 3 one of the first Title VII cases, the question of the use of 4 high school diplomas and standardized tests in employment. 5 In 1976, Alan Bakke became a very famous individual 6 in the California State Supreme Court and then subsequently 7 in the United States Supreme Court, and the students at the 8 law school at Boalt Hall, especially the Black Law Students 9 Association, felt that their voice should be heard and they 10 were particularly interested in challenging what was at 11 that point an unacknowledged assumption that they were less 12 qualified to be in law school. 13 And they thought that the basic problem that they 14 felt was not being addressed was the test. And so I ended 15 up helping coauthor a brief to the Supreme Court to talk 16 about the invalidity of the MCAT and had an appendix about 17 the invalidity and bias on the LSAT. 18 As it turned out, the Bakke case came down as it 19 did, and the National Institute of Education and the Spencer 20 Foundation funded a study for the National Conference of 21 Black Lawyers to evaluate the law school admission test and 22 I was asked to be the principal investigator and I conducted 23 that in Berkeley. 24 That's when I learned a lot of information, some of 25 which we're presenting today, and had a number of different 129 1 experts from a variety of different fields talk about the 2 LSAT and talk about law school admissions and talk about the 3 graduates of law school. 4 At that point, truth in testing occurred in 1980 and 5 I was frankly shocked, Your Honor, because we had never seen 6 a real LSAT test question before and we had been told that 7 they weren't biased. 8 And when we wrote our initial report for the 9 National Conference of Black Lawyers, all we could see were 10 the sample questions, and I have actually included some of 11 those sample questions in the report that I gave, and it's a 12 fascinating process, because what I did, and this is what I 13 did at the Association of American Law Schools, is I read 14 one of those questions, and before I was halfway through 15 reading that question, the audience was almost literally 16 rolling in the aisles, because I was reading it to the 17 Section on Minority Education, and as you would expect, the 18 vast majority of the audience were members of minority group 19 law professors. 20 I read that same question in 1988 -- '86, when I 21 was asked again to speak at the Association of American Law 22 Schools, got a completely different reaction, because that 23 audience was the Section on Prelegal Education, and it was a 24 wildly diverse audience, mostly white. 25 And it showed me what I was finding for the next 130 1 fifteen years, is that different people react to different 2 questions in -- the same question in very different ways. 3 And so the research that I can present is statistics, but 4 as I indicated, they are statistics that reflect one-by-one 5 decisions by individual students on individual questions, 6 and what we have discovered, I think quite clearly from the 7 data, is that different people from different racial groups 8 have different test scores largely because of the test. 9 Q Mr. White, let me just interpose there, if I can. 10 So you became aware that there were questions that 11 people answered differently in a way that had to do with 12 race? 13 A Absolutely. 14 Q And that was what started your interest in testing 15 bias, and in particular, bias on the LSAT? 16 A It was fascinating. There were four tests a year and 17 I could have a new one come out and look at it. 18 Q Before that time, I take it, you had only had 19 reference -- had the ability to reference questions which 20 were written as samples and weren't actual questions; is 21 that right? 22 A In the bulletin of information that you get for your 23 application and the codes and everything that would have the 24 number of questions and some examples. 25 Q And since that time, since I guess before Bakke, since 131 1 the mid '70's, you have been working on these questions, you 2 have made presentations, including the material that you'll 3 be presenting today, to institutions like the Texas State 4 Legislature and the Committees of the New York and 5 California State Legislatures before which you have 6 testified; right? 7 A Yes. 8 Q And as far as you know, there really aren't a lot of 9 other people who do this kind of work; is that right? 10 A No one seems to have the interest in it that I do. 11 Q And by the way, you are a member of the National 12 Council on Measurement and Education? 13 A That's correct. I go to their convention every year 14 and I'm a member of the American Educational Research 15 Association, and Division D, which is Measuring and 16 Evaluation. 17 MS. MASSIE: That's all, Judge. I just wanted to 18 give the Court more background on why it is that Mr. White 19 hasn't worked for a testing company and things like that. 20 THE COURT: Go on. 21 BY MS. MASSIE: 22 Q There has been a lot of testimony about the overall 23 gap nationally in the law school applicant pool, the gaps 24 among law school applicants of different races on the LSAT 25 and I'm not going to dwell on that too long. I think it's 132 1 been very conclusively shown to exist in the case. 2 There has also been some information that the gap on 3 the LSAT far outstrips the gap in undergrad GPA's; in other 4 words, there is a gap in undergrad GPA's, but it is nowhere 5 near as large as the gap, aggregate gap by race in LSAT 6 scores. 7 A Yes, there is a much larger gap in both the applicant 8 pool and the accepted student pool at the University of 9 Michigan, in this case, on the LSAT, much larger than any 10 gap on the GPA. What we're showing in this information is 11 that it's true nationwide. 12 Q And we're going to be focusing on the national data? 13 A Yes. 14 Q And this gap and the difference between the two gaps 15 has existed for a long time; is that right? 16 A At least 25 years. 17 MS. MASSIE: Okay. Let's quickly go through a 18 couple of charts that will help map that out. If everybody 19 could turn to Exhibit 218. 20 In case, Judge, I'm getting the numbers wrong, since 21 we didn't straighten that out yet, I'm just going to read 22 what it says at the top, as well. 1976 Number and Percent 23 of Applicants At or Above Selected Levels of LSAT Scores and 24 College Grade Averages. 25 THE COURT: And that's 218, as far as you believe at 133 1 this time? 2 MS. MASSIE: What's that? 3 THE COURT: That's 218? 4 MS. MASSIE: Yes, that's the best information we 5 have. We're going to have to confirm it. 6 THE COURT: That's fine. If it turns out different, 7 you can just make one an A or something. 8 MS. MASSIE: Yes, that's a good idea. 9 THE COURT: The rest of the package you have here, 10 the '96, '97 will be, just so we do it right, 219. 11 MS. MASSIE: Good. 12 THE COURT: 220 will be the next chart. 13 MS. MASSIE: Great. 14 THE COURT: And then just keep going until we're 15 through, right? 16 MS. MASSIE: Sounds good. 17 BY MS. MASSIE: 18 Q This chart was apparently from a brief filed by the 19 Law School Admission Council, an organization that's been 20 mentioned often in this trial, in the Bakke case? 21 A That's correct. The Law School Admission Council 22 sponsors the law school admission tests and filed one of, 23 I think, 62 amicus curiae briefs in the Bakke case. 24 Q Tell us, quickly, what do we have to learn from this 25 chart? 134 1 A This was the clearest indication that I had seen to 2 date of the independent discriminatory impact on the LSAT 3 compared to grades for black students as opposed to white 4 students. 5 Q How is that true? 6 A What I did was look originally at the largest group, 7 which is obviously the whites, and look at how 40 percent 8 of the whites who applied to law school in 1976 applied 9 with a college grade point average of 3.25 or above, and 10 coincidentally, almost exactly the same percentage of 11 37 percent had an LSAT at or above 600. 12 So that for the white applicant pool, the LSAT and 13 the GPA, at 3.25 for GPA and LSAT at 600, were capturing 14 about the same percentage of the white pool, so that we 15 could say in the parlance the testers would use that it was 16 equally difficult, because if you said I would like to get a 17 3.25 in college and go to law school, well, you'll be one of 18 the top 40 percent who apply, and if you say I would like to 19 get a 600 or above on the LSAT and apply to law school, you 20 would have been one of the top 37 percent of the whites who 21 applied. 22 Now, obviously, as Dr. Shapiro mentioned the other 23 day, it would be no point at all if the same people that got 24 the same good grades, got those kind of test scores, because 25 you would be wasting a half day on a Saturday. So different 135 1 people get grades and test scores and what happens is when 2 you require both, which actually, incidentally, law schools 3 do not do, they don't say you better have a 3.25 and a 600, 4 they use what they call a compensatory index, where you can 5 have high LSAT and low grades, or low grades -- low test 6 scores and high grades, so that's not what it's intended 7 to do, but it's the way the Law School Admission Council 8 presented the data. Twenty percent of the whites had both. 9 Q So in other words, 40 percent of the white people got 10 above a 3.25 or above? 11 A Right. 12 Q A different 40 percent, a different but overlapping 13 40 percent got the LSAT score of 600, and the 20 percent 14 captures the overlap? 15 A That's the group that was in both, yes. 16 Q But it didn't work that way for the black applicant. 17 Tell us why not. 18 A That's what was so fascinating for me. This Court and 19 this nation has heard a lot of information about the lower 20 percentage of black applicants who apply to law school with 21 a 3.25 or above, and there is no indication that that is the 22 top limit of the ability of black applicants, but if the 23 LSAT was working the same way for black applicants as it 24 was for whites, this chart wouldn't look the way it does, 25 because instead of 13 percent having a 600 or above, only 136 1 three percent do. And so instead of cutting that group in 2 half, the group is cut from 13 percent down to one percent. 3 Q In other words, when you contemplate the number of the 4 percentage of black applicants who had both the grades and 5 the LSAT scores in the highest range, it was down to one? 6 A Yes. And that's what I call the discriminatory impact 7 of the LSAT with respect to black applicants that doesn't 8 seem to be reflected in college grades. 9 Q Now, are you suggesting that grades are race neutral? 10 A Oh, no. Oh, no, but it's a benchmark for us to 11 measure the relative problem. And so insofar as there is 12 any problem with college grades, there is an additional 13 problem with the LSAT. 14 Q Has this problem continued, this additional problem, 15 for black applicants, black law school applicants? 16 A Well, in 1981 the LSAT changed from the 200 to 800 17 scale that it was based on, the same scale of the SAT and 18 the GRE, the 200 to 800, and they went to a 10 to 48 scale, 19 and I ended up at Testing for the Public. And then in 1991, 20 they changed again and went to a 120 to 180 scale. 21 Q And you're taking us to Exhibit 219, I think? 22 A And so in 1996, 1997, twenty years later, I looked at 23 that, as it's widely available, every law school admission 24 officer gets it, every prelaw advisor gets it, and if you 25 send an e-mail to the Law School Admission Council, you will 137 1 get a very polite response and get the data. 2 What we found is when whites were applying to law 3 school in 1996 and '97, twenty years later, 46 percent of 4 them had a 3.25 and above in college. Almost exactly the 5 same percent, 46 percent, if you round, had an LSAT at or 6 above 155. So it was working the same way that a 600 did. 7 Now, the Law School Admission Council will warn you 8 that a 600 and a 155 are not equateable, and I understand 9 that, but in terms of capturing the pool, the same number 10 of people managed to jump into each pile, and it went down 11 to 27 percent if you made it both. 12 Q And it was working in pretty much the same, slightly 13 moderated, but pretty much the same way, relatively 14 speaking, for black law school applicants as well? 15 A Instead of going down from 13 percent to three percent 16 twenty years ago, you now go down from 17 percent to eight 17 percent. 18 Q And combining the two? 19 A So the gap is not ten percentage points, it's nine 20 percentage points, and instead of one percent of the 21 students having both, now three percent of the students 22 have both. 23 Q So in other words, the independent discriminatory 24 impact of the LSAT has persisted now for at least 25 years? 25 A Yes. 138 1 Q Substantially unchanged? 2 A Yes. We have looked at the data before and after this 3 year and they are almost identical. 4 Q Now, you have done some work to try and determine 5 whether the SES factor on the LSAT is greater or lesser 6 than the race factor on the LSAT for a test taker. 7 A Well, that's one of the first questions that you get 8 when you present data to somebody. People will say, well, 9 the LSAT is biased against lower class students, and we have 10 heard testimony about the SAT being biased against lower 11 class students, and they said that's all you're capturing. 12 It wasn't until Linda Whiteman, Dr. Linda Whiteman, 13 who is the former Director of Research for the Law School 14 Admission Council, had previously worked at the Educational 15 Testing Service and is now a Professor at the University of 16 North Carolina Chapel Hill, published data about the most 17 extensive study about the law school, LSAT, Bar passage. 18 It was called the Bar Passage Study and as part of it they 19 gathered socioeconomic status data. 20 She published a chart in her article in the New York 21 University Law Review, which has been widely cited, that 22 shows the interrelationship between LSAT scores, 23 socioeconomic status and racial identity. 24 Sometimes pictures are worth a thousand words, Your 25 Honor. If you are white, as you can see, regardless of your 139 1 social class, you have an advantage on the LSAT. If you are 2 from the upper middle class blacks, or if you are from the 3 upper class blacks, and you compare your LSAT score with 4 lower middle class whites, your average score is almost 5 six points lower. 6 And so the next page, which I think would be 7 number 221 -- 8 Q It's 221. The bar graph was 220. 9 A Those were the pictures, and these are the numbers 10 that reflect the pictures. 11 Essentially, if you ask the question, does it pay 12 to be upper class if you take the LSAT? You say, yeah. 13 Depending on your racial group, it's worth about two to 14 three points. Now, this is on the 10 to 48 scale and we're 15 now on the 120 to 180 scale, so the numbers are not going to 16 be the same, but the ratios and the relationships shouldn't 17 have changed, because as Dr. Shapiro indicated, tests are 18 designed to be consistent. 19 For example, if you were white, if you came from the 20 lower middle class, your average LSAT would have been 36.24. 21 If you are upper class white, you would have 38.31. So it's 22 a little more than two points to be white if you're upper 23 class. 24 For blacks, it's about three points, 27 to 30, but 25 look at the difference. If you are a lower middle class 140 1 white, your average LSAT is 36. If you are an upper class 2 black, your average LSAT is 30. 3 I think there is one point I want to make on the bar 4 graph, since we put it in, is that they also told the number 5 of students that fall into these different groups. 6 THE COURT: Those are the numbers underneath there? 7 THE WITNESS: Underneath. And as you can see, 8 Dr. Whiteman actually made a point of this in her report, 9 that she tried to pick groups that were about the same size, 10 and I'm sure she also looked at what socioeconomic status 11 data meant, but she found for whites that that was pretty 12 true, about a quarter of the whites fell into each of the 13 groups. 14 If you look at blacks, though, far more than half of 15 the blacks were from the lower middle class. You had 937 in 16 the lower middle class. You had 280, 142, 488 in the other 17 three groups. So that when we talk about socioeconomic bias 18 on the LSAT, there's two points to be made. One is that 19 it's different than race, but it's also part of racial bias. 20 And so while it doesn't make sense to say that the 21 LSAT gap is a reflection of simply socioeconomic status, 22 because it's not, to say that the test is biased on the 23 basis of socioeconomic status is also to say the test is 24 biased on the basis of race. 25 Q There is an additional factor, though, which is race 141 1 itself. 2 A Absolutely. If you look at the relative magnitudes, 3 you have about two to three points -- 4 THE COURT: Which chart, 221? 5 THE WITNESS: The numbers -- 6 BY MS. MASSIE: 7 Q The numbers on 221? 8 A Yes. If you look at the numbers, class accounts for 9 two to three points within a racial group. Race counts up 10 to six points to eight points between blacks and whites. 11 Q Well, six to eight points if you're taking the lowest 12 socioeconomic status category -- 13 A Absolutely. 14 Q -- of white applicants and the highest socioeconomic 15 status category for black applicants. 16 A Yes. The smallest gap you can get is if you compare 17 lower middle class whites with upper class blacks. If 18 you compare upper class to upper class, that's a seven 19 and-a-half point gap, or if you compare lower class to 20 lower class, it's a nine point gap. 21 Q I understand that you have also done some work on -- 22 generated by the question that people have, as they do about 23 socioeconomic status, whether the additional gap produced 24 by the LSAT doesn't reflect different grades at different 25 colleges, less difficult or rigorous college classes, things 142 1 like that. 2 A That's a -- 3 Q So in other words, do the grades mean the same thing. 4 A That's exactly what you will get. When you look at 5 the national data and you look at the percentage of students 6 who apply with a 3.25 or above, people will say, well, they 7 went to different colleges, and so that reflects different 8 standards. 9 There was some very interesting data that we 10 reported as a result of the National Conference, Black 11 Lawyers Conference that's included in our report, Your 12 Honor, that actually shows that traditionally and 13 predominantly black colleges actually offered lower average 14 grades to their students than did the upper class colleges, 15 so that's the general world we're in, but we didn't want to 16 do that, we wanted to control for college, and so what we 17 did is we asked twelve law schools to give us their top 18 four feeder schools. They were the schools that Dr. Allen 19 mentioned yesterday that you're just tired of hearing from 20 students from, and we had those twelve schools give it to 21 us for three years, which meant that we had 36 cohorts of 22 students. 23 Q What year was this, Mr. White? 24 A The study was published in 1981 and the data was from 25 1978 to 1980. These were the applicant groups. We just 143 1 wanted to see what the pool looked like. We didn't want to 2 know whether they got admitted or anything like that, but 3 just what did the pool look like from the top four feeder 4 schools. 5 Then we said, now that we have got the people 6 applying accidentally to these law schools from the same 7 college, we're going to match each individual minority 8 student with all the white students who applied from that 9 same college and accidentally ended up in the same law 10 school application pile with the same GPA's. 11 And we said, what's the same? Well, plus or minus a 12 tenth. So if you're an African American and you have a 3.0, 13 we will look at all the whites who applied to law school 14 from your college that had either a 2.9 up to a 3.1, a very 15 narrow band of similarity. 16 Dr. Joseph Gannon from Boston College presented the 17 results of this study that included over 19,000 students. 18 Q Mr. White, I'm sorry, I just want to make sure the 19 record is absolutely clear, so you took each minority 20 applicant -- 21 A Yes. 22 Q -- and matched each applicant with all the white 23 applicants within a GPA range of plus or minus a tenth of 24 a point? 25 A Yes. 144 1 Q And then you averaged all the white people's GPA's, so 2 you had an average GPA that you were comparing the -- I'm 3 sorry -- you averaged all the white people's LSAT scores, 4 excuse me, so you had an average LSAT score for the white 5 people with the same GPA from the exact same school in the 6 same year as the minority applicant? 7 A That's correct. That's correct. Obviously, each 8 individual white student had their own LSAT score, so we 9 took the match between the black and that white, the black 10 and that white, the black and that white, and we got the 11 average gap that each individual black student faced 12 compared to all the whites that were the same. 13 And then I did have to ask some of my friends 14 that know a little bit more about math than I do, and 15 Dr. Joseph Gannon told me how to do it, that you weighted 16 that average so that you could come out with an overall 17 average gap that say black students from college X were 18 facing in that year. 19 Q And what were the results of that study? 20 A When we looked at the minority students' LSAT scores 21 and compared that to all their comparable whites from the 22 same school, we found that African Americans had 110 points 23 lower LSAT scores on average than the white students who 24 came from the same college with the same grades. 25 Q And this was on a 200 to 800 scale? 145 1 A It was on a 200 to 800 scale. 2 Q And a 100 point gap was -- how substantial was that? 3 A In terms of what psychometricians would call a 4 standard deviation, it's very significant. Tests start from 5 500 and go out, so one standard deviation is 400 to 600. 6 That means you'll capture a third of the applicant pool in 7 that group. And then another 200 points one way or the 8 other would be 300 to 700, and then 200 to 800. That's the 9 way tests are designed, to create that spread. 10 And so on average, you are having more than one 11 standard deviation in terms of what the testers would say in 12 terms of a gap. It's an enormous gap. It's 97 points for 13 Chicano-Latinos, 78 points lower for Native Americans. 14 And this is the point that I think is very 15 interesting to remember. This is data that we were doing in 16 Berkeley, California, even though the study was nationwide 17 in terms of our spread for colleges. We were very 18 interested to notice that there was a 36 point gap for Asian 19 Americans, so that when Asian Americans were taking the LSAT 20 and being compared to whites who applied from the same 21 college to the same law school, they didn't end up with the 22 same LSAT scores. They were behind 36 points on the LSAT. 23 They were relatively close, but they certainly weren't the 24 same. 25 Q So this is the information that's reflected on 146 1 Exhibit 222? 2 A Yes. 3 Q Minority to Non-Minority LSAT Score Differences, and 4 so on? 5 A And that was presented at our national conference by 6 Dr. Joseph Gannon, and then the results of the study were 7 published in the book and it's included in the testimony 8 and exhibits in my report. 9 Q So even when you control for school and for GPA, you 10 still end up with substantial and meaningful LSAT gaps by 11 race in the aggregate? 12 A Yes. Joseph Gannon put it best in his report when 13 he said, what was built up in four years was torn down in 14 four hours. 15 Q Have you -- has Testing for the Public recently 16 undertaken to update this research? 17 A Again, this was on the 200 to 800 scale and they went 18 to 10 to 48, now they have gone to 120 to 180. So it so 19 happened that one of my students, William Kidder, who I was 20 happy he took my LSAT course, then I was happy that he 21 decided he was going to teach the LSAT course for me, I was 22 happy for him that he got into Boalt Hall. I was flattered 23 that he read all my old law review articles, and I was 24 amazed that he took on the burden of actually trying to 25 reproduce Dr. Gannon's study. 147 1 He asked Boalt Hall to give him anonymous data 2 from their applicant pool and he reproduced the study that 3 Dr. Joseph Gannon had done twenty years ago. He did the 4 very same matching process, and this time we had the 5 identities of the school available to us, and you can see, 6 Your Honor, they are very famous schools, it's the top five 7 feeder schools to Boalt Hall, UCLA, Berkeley, Stanford, 8 Harvard and Yale. 9 And as you can see, the University of Michigan, 10 also, has a lot of people applying to Boalt Hall, not as 11 many as the other five, but we included the top fifteen 12 schools, down to the University of Texas of Austin, 13 major colleges, universities, applying to Boalt Hall. 14 What we found was when we control for grades at 15 those elite colleges, 9.2 gap for African Americans, 6.8 gap 16 for Chicano-Latinos, 4.0 gap for Native Americans, and 2.5 17 gap for Asian Americans. The numbers are different in terms 18 of absolute numbers, because you're now down to a 120 to 180 19 scale, but in terms of relative gaps, it's almost identical. 20 Q What is a -- just give us some idea, if you would, of 21 what a 9.2 gap means in terms of the average LSAT scores of 22 accepted applicants to different schools. 23 A We found it very hard to find law schools that were 24 nine points different in their average LSAT scores. We 25 actually put together a little table for -- 148 1 THE COURT: You mean admissions? 2 THE WITNESS: No -- yeah, in other words, if you 3 looked at, say, the University of Michigan Law Schools and 4 their student body and just for accident's sake I decided 5 to compare it to Ohio State -- 6 THE COURT: Right. 7 THE WITNESS: -- the difference between the average 8 LSAT scores of those two law schools is five points. 9 THE COURT: And within the law school itself, it's 10 going to be substantially less? 11 THE WITNESS: Well, that's the other thing that's 12 very interesting, Your Honor, and it's very disturbing, 13 because what the Association of American Law Schools does 14 now is they publish data for the benefit of students, 15 because they try to be as open as they can about their 16 admissions policies without making it seem overly 17 mechanistic, and so what they report is the 25th percentile 18 and the 75th percentile, so they are basically taking the 19 middle half of the class, because they admit some people 20 have very high grades or test scores and they admit some 21 people have lower test scores, and they don't want those to 22 be what people focus in on, but they say, here's what most 23 of the class looks like. 24 Most schools have a five or six point gap between 25 their 50th percentile. 149 1 THE COURT: Within that school? 2 THE WITNESS: Within that school. 3 THE COURT: When you compare the two, it was still 4 within that range? 5 THE WITNESS: Within the range; very difficult to 6 find a nine point gap across the country anyplace, yes. 7 So what it means in terms of the substance of the 8 argument that's made about law schools is that law students 9 are mismatched and somehow they should go to a lesser 10 prestigious law school or lesser selective law school. 11 The fact is, you're either matched or you're not 12 matched. There is not a nine point gap that you can go to 13 another law school and fit in. That is a much bigger gap 14 than you will find in the law school admission process. 15 BY MS. MASSIE: 16 Q Did you get any objections to the update of the study 17 that caused you to further refine it? 18 A Well, the other question that you often get is, yeah, 19 they went to the same college, but did they do the same 20 major. 21 Dr. Whiteman said in her study that when she looked 22 at the national data, the majors for the different racial 23 groups were pretty much the same, that if you're going to 24 apply to law school, it's not surprising that you studied 25 political science or you studied economics or you studied 150 1 history or you studied sociology, and I think there are 2 about eight major categories where you would be going into 3 law school, but it's possible that you're going to the same 4 college and taking different majors. 5 We had the data in the Boalt Hall study to actually 6 analyze that. There's obviously fewer students who are 7 matched at this point, because they may not be in the same 8 major, and so we said, okay, we're only going to include the 9 African Americans where we can find a white student who took 10 the same major and happened to apply to Boalt Hall from that 11 same college. 12 So we would be reducing down any variation that you 13 would get. Well, you were a poli-sci major and I was an 14 economics major, no wonder you got a better GPA, okay, so 15 just take history majors and compare those. Match them 16 again on GPA's, match them in the same major from the same 17 elite university. The gap from African Americans is now 18 down from 9.2 to 9.1. I'm not sure if that tenth of a point 19 is worth celebrating. Chicano-Latino goes up from 6.7 20 to 7.0. Asian Americans goes up from 2.5 to 3.6 points. 21 So what it means is when you actually match majors 22 and then match grades and match test scores, the gap goes up 23 slightly between blacks -- or between Chicano-Latinos and 24 whites and goes up slightly between whites and Asians and 25 stays virtually the same for African Americans. 151 1 So somewhere there is a nine point gap on the LSAT 2 that can't be explained by past educational performance at 3 the most elite colleges in the country. 4 Q Or by socioeconomic status? 5 A Certainly we looked at the other points, as well. 6 Q By the way, you have been referring to Exhibit 224 on 7 the majors; is that right? 8 A Yes. 9 Q And William Kidder, the research associate associated 10 with Testing for the Public who carried out the update at 11 your direction, just so the Court knows, he was an intern 12 at my law firm for a month last summer; isn't that right? 13 A Yes. 14 Q That was after he had undertaken all of this research 15 and so on; correct? 16 A Frankly, Miranda, as much as we have gotten to know 17 you, we had never heard of you at that point. This was 18 1998. 19 MS. MASSIE: I'm shocked. 20 THE WITNESS: This was 1998 when we got the data, 21 Your Honor. 22 MS. MASSIE: Still unthinkable. 23 BY MS. MASSIE: 24 Q So the LSAT adds to discriminatory impact on top of 25 the correlation of race with class? 152 1 A Yes. 2 Q And on top of the selection problems that result, 3 that we have heard a lot about, that result in lower 4 representation of blacks, Latinos, Native American students 5 on selective campuses that result in their getting lower 6 grades on the campuses, all the different forms that 7 discrimination takes, the LSAT adds something on top of 8 that? 9 A That's what is so surprising, is the Court has already 10 heard one example among many that could have been presented 11 of students who actually go to those campuses with very 12 different experiences on those campuses, which affects their 13 grades. 14 And so when you actually match the black student and 15 the white student at the same college with the same grades, 16 you're not matching in a way that is neutral, you're 17 actually taking people who had different experiences on that 18 campus and managed to get the same grades, and so for that 19 test bias to still occur is probably reflecting something 20 actually larger than we can capture with the numbers. 21 Q Have your interactions with students over the years 22 and your study of the testing literature and your analysis 23 of specific questions and all the work that you have done 24 over the last couple of decades on the LSAT and on testing 25 bias in general given you a sense of what some of the 153 1 contributing causes may be? 2 MR. KOLBO: Your Honor, I have to object on 3 foundation at this point, if this is more than a yes or no. 4 MS. MASSIE: I just asked if he had any knowledge 5 of it. 6 THE COURT: Could you repeat the question? I was 7 writing something down and I -- 8 MS. MASSIE: I will rephrase it. 9 THE COURT: Okay. 10 BY MS. MASSIE: 11 Q Do you have any opinions, do you have any basis 12 for knowing what some of the contributing causes might be, 13 gleaning from your work with students and your review of the 14 literature and your analysis of test questions over the 15 years? 16 THE COURT: The causes for? 17 MS. MASSIE: For the additional gap beyond what we 18 have been talking about. 19 MR. KOLBO: Your Honor, unless, again, it's a yes or 20 no, I object to the foundation. 21 THE COURT: Answer yes or no, first. 22 THE WITNESS: Yes. 23 THE COURT: Now lay your foundation. 24 BY MS. MASSIE: 25 Q Tell us what your basis is. 154 1 A When you go to National Council on Measurement 2 Education conventions for about twenty years and read as 3 much literature as you can, eventually you start to realize 4 what is essentially given wisdom in the testing community, 5 and the ways in which standardized tests are made by an 6 individual company or an individual test provider are 7 private information. They are sometimes made public, 8 certainly there are technical manuals that are available, 9 but the general approach of making a test is what's called 10 classical test theory, and that is part of the making of 11 the test. 12 There are other parts of the making of the test that 13 are actually made very public, and those include the types 14 of questions that are selected, the types of passages that 15 are included on the test, and then besides how tests are 16 made, it's how tests are taken. 17 Q What do you mean? 18 A That when Dr. Steele talks about stereotype threat, he 19 is not talking about anything unique to the test, he is not 20 saying that there was a stereotype on the test and people 21 felt threatened about it, he is saying that the test itself 22 evokes a stereotype. 23 So he chose his GRE items, which was the first 24 study, the one I read in most detail, because they were GRE 25 items, and he thought they were tests of verbal ability, and 155 1 he thought that he could do some psychological studies on 2 them. And he came up with a theory that he can identify 3 stereotype threat, but that's something that the test 4 company has no control over. They can't choose a different 5 reading passage. They can't choose a different logic or 6 reasoning question. They can't even choose different test 7 specifications and have any impact on what might be going on 8 when different students from different racial groups take 9 the same test. 10 And so it's the combination of how the test is made 11 and how the test is taken that results in what seems to be 12 about a nine point gap among people who have performed 13 equally in college. 14 THE COURT: But you don't know what percentage each 15 may play a part? 16 THE WITNESS: No, no. There is no way of telling 17 that. 18 I think that Dr. Steele has given some information 19 that gives you dimensions, and so what he was able to 20 manipulate in a laboratory setting, which is a much less 21 threatening setting than a law school admission test, 22 gives us at least, I would imagine, a lower bound of what 23 stereotype threat could be on the LSAT. And as I say, in 24 the real thing, that's different than sitting around in -- 25 THE COURT: The real world? 156 1 THE WITNESS: -- in a lab in the Stanford Psychology 2 Building. 3 THE COURT: Nobody obviously studied that, because 4 how do you study that? 5 THE WITNESS: That's the point. So we have the nine 6 points. And it's clear at least in theory, and I think 7 that there is documentation for at least a lot of the 8 information, that both the test development process that you 9 heard about from Dr. Shapiro and the test taking process 10 which you have heard from Dean Garcia affect the way in 11 which this nine point gap results. 12 THE COURT: When you teach the course, you talk a 13 little bit, I'm sure, about test taking? 14 THE WITNESS: Oh, yes, that's what we teach. 15 THE COURT: I shouldn't say a little, that's -- 16 THE WITNESS: That's what we teach. 17 THE COURT: And in your experience, I was going to 18 ask you this later, but in your experience, in the courses 19 that you give, what's the percentage of increase after 20 taking your course, if you know? I mean, I would suspect 21 you keep some statistics. 22 THE WITNESS: Your Honor, what I do is I give a real 23 LSAT that's obviously not official on the first day of class 24 and then I compare it with what students tell me their LSATs 25 were in the past, and at one point I averaged it out and it 157 1 was five points. 2 THE COURT: That's how they do it? I thought maybe 3 that they have students take one test and then take it 4 again. No? 5 THE WITNESS: Well, that's the trouble with the high 6 stakes test, that you don't want to use people as guinea 7 pigs, and since the Law School Admission Council will report 8 your average LSAT score - 9 THE COURT: You can't do that? 10 THE WITNESS: -- you don't want to do that to a real 11 human being, you know, but that's why we give an official 12 test, and obviously it doesn't have the same impact in the 13 same setting as a real test does, but it gives us some 14 indication of whether or not we have changed some people's 15 scores. 16 MS. MASSIE: I don't know if you have any other 17 questions, Judge. I'm just about to finish up. 18 THE COURT: No, he has answered my questions. 19 BY MS. MASSIE: 20 Q In your opinion, Mr. White, is there a level playing 21 field for minority law school applicants on the LSAT? 22 A Certainly not. 23 Q And if you didn't use affirmative action in law school 24 admissions, would using the LSAT be an unfair double 25 standard that discriminated against minority applicants? 158 1 A It would be an unfair double standard. One way of 2 seeing the dimensions of that double standard is to look at 3 the index that the University of Michigan used. Having a 4 nine point gap on the LSAT is like taking nine tenths -- 5 THE COURT: I'm sorry? 6 A -- taking nine tenths of a point away from your score. 7 THE COURT: The index? 8 THE WITNESS: That's right. In other words, they 9 give you a constant and then multiply a number by the LSAT 10 score and multiply a number by the GPA and add it up. It's 11 in the report that Dr. Larntz provided. 12 THE COURT: They say they don't really use it. They 13 say the computer -- 14 THE WITNESS: Oh, it's the index. They do it 15 mathematically or automatically once they get the index, 16 but if you want to see what the impact of a nine point 17 gap is -- 18 THE COURT: I see. It's obviously there. 19 THE WITNESS: It's like looking at the GPA of a 20 black student and saying, well, we'll just knock this down 21 nine tenths of a point. So if you've got a 3.5, we will 22 call it a 2.6. How's that? That's what the nine point 23 gap does for the index. 24 BY MS. MASSIE: 25 Q And in your view, Mr. White, to what extent should 159 1 race be taken into account in law school admissions? 2 A I think it's essential, and the thing that I was so 3 surprised about in terms of the response was not that the 4 Law School Admission Council had no explanation for the gap 5 when I presented it at the Society of American Law Teachers 6 on a panel with the President of the Law School Admission 7 Council just a month ago, this is not news, and it's not 8 news to admissions officers either. 9 I think that over the last 20 to 25 years admissions 10 officers have recognized that there is this independent gap, 11 and it's part of the folklore of admissions, so that people 12 recognize that this gap is part of the evaluation process. 13 And so just as you would like to know what school somebody 14 went to and what major they had, you would like to know what 15 race they are when 16 you evaluate their LSAT score. 17 Q Let me go back and ask the last question, because I'm 18 interested in your opinion on this as an expert on the test 19 rather than on the admissions process. 20 A Yes. 21 Q In your view, to what extent should race be taken into 22 account in admissions? 23 A It should clearly be taken into account in evaluating 24 the LSAT scores of the applicant. It is -- an aspect of 25 evaluating the information is knowing the LSAT score, and 160 1 knowing the race of the people who took the LSAT score is 2 part and parcel of evaluating that part of the applicant's 3 file. 4 Q And if you chose as an institution to take race into 5 account in a separate way, how much does it need to be taken 6 into account? 7 A You don't want to make it mechanical, but unless there 8 is a gap of more than nine points, I would say that the law 9 school -- between the student's LSAT scores -- I would say 10 that the law schools hadn't taken enough account of it. I 11 think that even though people recognize there is a gap, 12 people were surprised at how large it was. They were 13 surprised about nine points. I think schools underevaluate, 14 but I certainly think that they have to evaluate it with 15 that knowledge in mind. 16 Q We need more affirmative action in law schools 17 admissions, not less? 18 A Oh, certainly. The idea that people have been getting 19 a benefit on the LSAT is clearly not the case. 20 MS. MASSIE: Thank you. 21 MR. NIEHOFF: Your Honor, if I could have just sixty 22 seconds. 23 (Brief pause.) 24 MR. NIEHOFF: We don't have any questions. 25 THE COURT: Plaintiffs, any questions? 161 1 MR. KOLBO: Your Honor, we have no questions. 2 THE COURT: Mr. White, thank you very much. 3 MS. MASSIE: I'm sorry, could I reoffer Mr. White 4 as an exhibit -- as an expert, sorry -- and also offer the 5 exhibits into evidence? 6 THE COURT: Any objection to the exhibits? 7 MR. KOLBO: We have an objection only to the report, 8 Your Honor, for the reasons that I objected to his 9 qualifications. 10 THE COURT: What report? 11 MS. MASSIE: And I didn't offer the report in, and I 12 sure should have, so I thank Mr. Kolbo. 13 MR. KOLBO: You're welcome. I thought that's what 14 you were referring to. 15 MS. MASSIE: I was just referring to the exhibits. 16 His report is -- 17 THE COURT: Let's take them one at a time. 18 You have no objection to the exhibits referred to? 19 MR. KOLBO: I have none, Your Honor. 20 THE COURT: Those will be received. 21 MS. MASSIE: I apologize. I had it written down on 22 a post-it, which has disappeared, but I'll find it and make 23 it clear for the record. I would like to offer the report. 24 THE COURT: And the objection to the report is? 25 MR. KOLBO: Based on the foundation and fact that 162 1 the expert is not qualified in all these areas, Your Honor, 2 and the report addresses areas that he's not qualified in. 3 THE COURT: I will admit the report with the 4 understanding I'm only going to include those areas for 5 which he has expertise, and I think that's what he has 6 testified to, what he has expertise in. He has already 7 testified what areas he doesn't have expertise in, so if 8 the report includes those areas, then I will -- we won't 9 consider it. 10 MS. MASSIE: Excellent. Thank you, Judge. 11 It's 173, by the way. 12 THE COURT: Very well. Thank you, Mr. White. 13 THE WITNESS: Thank you, Your Honor. 14 THE COURT: Next witness, please. 15 MS. MASSIE: We actually had thought that, and I 16 meant to mention this before starting up again, we thought 17 that we were going to go through until 4:00. 18 THE COURT: Yes, we are. 19 MS. MASSIE: And so we thought that there was going 20 to be some cross examination, so we asked Professor Woo to 21 come back next week. 22 THE COURT: That's fine. I have no problems with 23 that. 24 MS. MASSIE: Sorry, I should have mentioned that 25 before. 163 1 THE COURT: No, no problem at all, none whatsoever. 2 I just -- that's fine. 3 Tomorrow morning, then, I guess is our next thing. 4 Let me just make sure everybody is on the same page in terms 5 of scheduling. Tomorrow morning we're going to put the 6 rebuttal testimony on, and Monday we're going all day. I'm 7 just looking at the schedule for Monday. We have the class 8 in, we talked about that, and at 11:00 I have just two, real 9 quick matters, nothing else in the afternoon, and I think we 10 talked about going into the evening on Monday, did we not? 11 MS. MASSIE: That would be fine. That would be 12 great. 13 THE COURT: It's up to you. I won't make plans 14 Monday. If you want to go, we can. 15 And then Tuesday we will start at 2:00, and I think 16 since we're starting at 2:00, if you want, I don't mind 17 going into the evening on Tuesday so we can get at least 18 a -- you know, I mean, I know it's hard for you guys, 19 probably harder for you than for me, so, you know, when I 20 say the evening, 6:00, 6:30, it's up to you. I don't want 21 to -- 22 And then Wednesday, as I said, unfortunately, I 23 can't be here. 24 And then by Thursday, I expect -- I'm just looking 25 at Thursday's docket. We have a pretty free docket. I have 164 1 nothing else, except Thursday we'll probably take lunch a 2 little closer to 12:30, and other than that, there is just 3 one other miscellaneous matter. 4 And I think Thursday, probably, unless there is a 5 witness that we haven't talked about, you can get everything 6 done without coming Friday, that would be great, but I'll be 7 here Friday, and Friday I have nothing else but this on the 8 docket. 9 MR. KOLBO: And just to make sure, as I mentioned 10 this morning, we're still working with, and I'll be talking 11 to Counsel about this over the weekend if necessary, we're 12 trying to figure out whether Professor Heriot should testify 13 Monday or later in the week, subject to her availability and 14 so forth. 15 THE COURT: And I will -- I haven't had a chance to 16 read it sitting right here. By tomorrow morning I will have 17 the answer for you, and I'll take it home and read it 18 tonight and listen to a little bit of argument and be 19 prepared to rule. 20 Let me just tell you one other thing that -- it's 21 not my intention, because I know Ms. Massie mentioned 22 before, really to do closing arguments. I'm not sure that 23 they are going to be fruitful here. 24 What is going to be very fruitful to me, at least, 25 is some kind of written summary, and what I have in mind, 165 1 and I would be more than glad to offer it at this time, and 2 when we can -- we don't have to necessarily discuss it 3 today, what I'm looking for is a concise summary of your -- 4 what you believe to be your best arguments and positions and 5 with specific reference to evidence or witnesses, and if 6 you can, to -- you don't have to quote things and that, 7 fortunately, you have ordered daily transcripts, so we all 8 have transcripts, don't waste your time, you know, and cite 9 it to a specific page or something of that nature, rather 10 than, you know, if there is something specific that you want 11 to cite it to, try to help us identify the most persuasive 12 evidence, you know, kind of like a closing argument, but 13 give me a little more opportunity to maybe direct our 14 attention to specific things and focus on the most 15 important things that you believe are important. 16 I have in mind maybe twenty pages or so, 17 simultaneous submission, and the same thing you would do 18 in a closing argument, but in a written thing, so that we 19 can digest it, and it's just more meaningful when you have 20 a little time to put it together and to focus. 21 And I would like it as soon as the trial is over, if 22 possible. These kind of trials, I have to, and I have set 23 aside a lot of time to start putting together things, and I 24 like to do it as quickly as possible because it's still 25 fresh, and credibility issues and all of those things, you 166 1 know. The longer it goes on, the harder it is to even -- 2 when you read the transcript, to -- you know, that's why I 3 have paid a lot of attention to watching witnesses and doing 4 the kinds of things that I, as a Judge, do in making a 5 decision. 6 MR. PAYTON: I think that makes a lot of sense. Let 7 me just report on some of the conversations that the three 8 of us have had about this, which may be changing. 9 I think we all agree with that, and we were talking 10 sort of informally among ourselves about, once the evidence 11 is fully received, we should be in a position to have 12 something to the Court, we said, in two weeks. Is that too 13 long? 14 THE COURT: That's fine. I mean, I was hoping ten 15 days, but -- 16 MR. PAYTON: We can do that. 17 THE COURT: I'm not going to quibble over ten days, 18 just because, as I said, my OCD. I set aside time to work 19 on this opinion and to read some of the transcripts and 20 so forth. 21 MR. PAYTON: Let me just keep going. I'm coming 22 right back to this. 23 The second thing we have talked about is whether or 24 not, in addition to that, it wouldn't be of help to the 25 Court, all three of us, wouldn't it be of help to the Court 167 1 to have brief closing arguments immediately after the close 2 of the evidence and do this as well, so if we finished on 3 Thursday, have closing argument on Friday. 4 THE COURT: I'm not opposed to it. I'm just not -- 5 absolutely, just again, part of my whole thing is not to 6 do things that are useless or -- and certainly it's not 7 useless. When you hear something and then you sit down and 8 read it, it sticks in a little bit further, so I have no 9 problems. Look, you know, but by the same token, I don't 10 want to -- if we can't finish it by Friday with closing 11 arguments, I would probably say economically and so forth 12 it doesn't make sense, but if we can, with some limitations, 13 maybe 45 minutes each, because after that, you know -- 14 MR. PAYTON: I think that's actually helpful to us 15 to have some limitation. 16 THE COURT: Yes, no more than 45, with the 17 understanding that we're going to get something in writing, 18 that will at least get our thinking going and we will be 19 able to take it and see what's going on. 20 MR. PAYTON: That's what I think. 21 THE COURT: I have no problems; and then a twenty 22 page submission after that just kind of focusing in 23 specifically on those things that, you know, that you 24 think that I should really take a look at. 25 MR. KOLBO: Do you anticipate us submitting post 168 1 findings of fact? 2 THE COURT: No, whatever you want to do in that 3 twenty pages, whatever you think is important. First I 4 thought, you know, that findings of facts and conclusions 5 and all, whatever you think is important in that twenty 6 pages, direct your attention to it. 7 I'm not going to tell you how to do it or what to do 8 or anything of that nature, just realize you don't have to 9 waste your time in terms of quoting things, we will all have 10 transcripts, and say, this is really important, read page 11 so-and-so, volume so-and-so, give us the page and the volume 12 and line and all that, we will be able to take a look at it 13 and whatever. 14 Kind of like you guys had the war rooms, now we're 15 going to set up a war room where we will all have all the 16 volumes. 17 I've tried many, many cases, so I know it just 18 shifts over to this side, so. 19 MS. MASSIE: Judge, that sounds very good, with this 20 exception, I think we're going to need a bit more than ten 21 days or two weeks. Can I talk you into three weeks? 22 THE COURT: You can talk me into it, but I'll be 23 very honest with you, that I've got to start putting it 24 together in ten days, you know. I'm not -- I will wait and 25 I will read it, and I'll pay attention to everything you 169 1 have to say, but as I say, I'm going to -- I have been a 2 judge long enough to know that the more time that goes on 3 after the trial, the less opportunity you have to really 4 capture it, and I'm just being real upfront with you and 5 real honest with you, you know, the essence of the trial and 6 the kind of things that are important. 7 So I'm not -- you know, ten days would really be 8 preferable, because I just -- as I said, may be my OCD 9 or something, but I'm one of these that I'm going to be 10 focused. I have set my schedule aside for this time, and I 11 have my schedule aside for as long as it takes to put this 12 together, because I think it's important and that's why I 13 kind of pushed you into a trial date and I pushed you into 14 this. And I told you, plus, we're getting letters and phone 15 calls and, you know, as I told you before, that we're 16 stacking up, and I think there is a lot of interest in it. 17 But most importantly, I guess it's the way I work, 18 and that is that I feel much more comfortable doing it 19 as quickly as possible in terms of at least starting the 20 process going, because I do remember what's going on, and 21 part of this whole case is the witnesses and what they have 22 to say and how they had to say it and all those things, and 23 the more time goes on, just the more it goes. So see what 24 you can do in ten days and we will go from there. 25 Tomorrow morning, then, we said the courtroom will 170 1 be open at 8:00 and the Marshals will be here to open the 2 building and everything at 8:00 and we will start about 3 8:30. Everybody agrees, or is that good or do you want 4 to readjust that? 5 MS. MASSIE: Judge, we just filed some papers 6 regarding Gail Heriot. 7 THE COURT: Oh, good. If you have them -- who did 8 you file them with? 9 MS. MASSIE: I think they have been filed on the 10 fifth floor. 11 I'm sorry, I thought they had been filed and served, 12 but they have not. 13 THE COURT: If you just give me a copy, you can file 14 them upstairs after, and if you want, I'll sign right on 15 there so you don't have to bring another copy down, and that 16 I have already gotten my copy. 17 MS. MASSIE: Great. 18 MR. KOLBO: And Judge -- 19 THE COURT: If Caroline was here, she is sick today, 20 I would file them, but we have nobody to file them. 21 MS. MASSIE: Oh, no, that's fine. 22 MR. KOLBO: Your Honor, we want to get the matter 23 argued tomorrow, but we probably won't have a brief 24 submitted in response to this. 25 THE COURT: You don't have to. I'll listen to oral 171 1 arguments tomorrow. We have plenty of time tomorrow and 2 I'll be more than happy to. 3 Okay, anything else? 4 See you tomorrow morning. Thank you. 5 COURT CLERK: All rise. 6 (Proceedings adjourned at 3:15 p.m.) 7 -- --- -- 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 172 1 CERTIFICATE 2 3 I, JOAN L. MORGAN, Official Court Reporter 4 for the United States District Court for the Eastern 5 District of Michigan, appointed pursuant to the provisions 6 of Title 28, United States Code, Section 753, do hereby 7 certify that the foregoing proceedings were had in the 8 within entitled and number cause of the date hereinbefore 9 set forth; and I do further certify that the foregoing 10 transcript has been prepared by me or under my direction. 11 12 _________________________ JOAN L. MORGAN, CSR 13 Official Court Reporter Detroit, Michigan 48226 14 Date:_________________________ 15 16 17 18 19 20 21 22 23 24 25