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 ca