In its continuing efforts to keep the public informed about the ongoing admissions litigation, the University of Michigan makes these transcripts of the trial proceedings in Grutter v Bollinger, et al., Civil Action No. 97-75928 (E.D. Mich.), available to the University community and general public. As is often the case with transcription, some words or phrases may be misspelled or simply incorrect. The University makes no representation as to the accuracy of the transcripts.
88
1 Afternoon Session
2 -- --- --
3 THE COURT: Okay. Next witness.
4 MS. MASSIE: Call Jay Rosner.
5 THE COURT: Mr. Rosner, you're still under oath.
6 MS. MASSIE: Judge, I do apologize. I'm slightly
7 behind the ball here because we got a bit behind on the
8 security check. I need to pass some stuff out to you guys.
9 THE COURT: No problem. Take your time.
10 MS. MASSIE: For everyone's information, these are
11 proposed Exhibits 201 through 210. Those were handed out
12 before, but we thought it would be prudent to make some
13 extra copies. There is also a demonstrative exhibit that
14 we're going to try to get admitted.
15 And I think the people in the gallery, copies should
16 be coming.
17 THE COURT: You have changed attorneys.
18 MS. MASSIE: Yes. Sorry, Judge, and I had raised
19 that with Mr. Payton and Mr. Kolbo.
20 THE COURT: I don't mind. That's fine. I was
21 waiting for Mr. Washington.
22 MR. WASHINGTON: I'm taking it easy today, Judge.
23 MS. MASSIE: I think we have reached the state of
24 resonance, and I apologize to everybody for the holdup.
25 Hello, Mr. Rosner.
89
1 THE WITNESS: Hello.
2 MS. MASSIE: I would like to start, if it's okay
3 with you, Judge, by reading very, very briefly from the tail
4 end of Mr. Rosner's testimony last time just to make it
5 relate, because I think we're going to pick up exactly where
6 we left off.
7 THE COURT: Go on.
8 MS. MASSIE: This is you testifying, Mr. Rosner.
9 "I hear from educators all the
10 time, the student is so wonderful. A
11 minority student who in class --"
12 This is page 208 from Volume 7 of the trial
13 transcript, for everyone.
14 "I hear from educators all the time,
15 the student is so wonderful. A minority
16 student who in class has got the papers,
17 responds really well, and has mediocre
18 test scores. How can that be? The answer
19 is very common and very understandable.
20 Different skills."
21 And then the Court interjected: "For everybody,
22 not just minorities."
23 And you responded to the implied question:
24 "For everybody, although the way the
25 skills are measured is different and
90
1 we will talk about that when we come to
2 do some specific test questions."
3 DIRECT EXAMINATION (Continued)
4 BY MS. MASSIE:
5 Q So I would like to turn now to your testimony on
6 specific test questions and I should start by asking you
7 whether people in different racial groups have different
8 outcomes as racial groups on different standardized test
9 questions.
10 THE COURT: First you better ask him and lay a
11 foundation, because his expertise -- I mean, I let him kind
12 of go on a lot last time, and in fact, I thought about it
13 and thought about it and probably let him go on too much.
14 From now on we're going to answer the questions.
15 And I haven't heard any -- why don't you lay a
16 foundation if he has expertise in that area.
17 MS. MASSIE: I'm happy to do that for this specific
18 purpose.
19 BY MS. MASSIE:
20 Q Have you studied the ways in which SAT's and LSAT's
21 and other similar standardized admissions tests have an
22 impact on minority test takers?
23 A Yes.
24 THE COURT: How have you studied them?
25 THE WITNESS: In a number of ways, Your Honor.
91
1 THE COURT: First of all, have you had any training,
2 statistical training or anything of that nature?
3 THE WITNESS: I don't have any formal statistical
4 training, no.
5 THE COURT: Go on. How have you studied it?
6 THE WITNESS: I have studied this topic from working
7 myself with many dozens of SAT test forms and many dozens of
8 LSAT test forms, looking at those forms, analyzing them, and
9 then working with majority students and minority students on
10 individual test questions in the context of test
11 preparation, and I have done many, many hours of that.
12 I have also had discussions, particularly in recent
13 years, with minority students before they took the test,
14 while they were preparing for the test, and then I have had
15 discussions with minority students after they have their
16 test scores. So it's a continuum of information involving
17 the test questions themselves, the interaction of minority
18 students with the test questions, and then the results that
19 minority students get when they get the test scores.
20 THE COURT: Did you compile this data, did you write
21 it down, did you do a paper on it?
22 THE WITNESS: I have written -- I have written a
23 couple of articles on these topics. I speak regularly to
24 organizations about these topics. In terms of, I think
25 perhaps what you're asking is, have I done a statistical
92
1 analysis of this --
2 THE COURT: That's not what I'm asking.
3 THE WITNESS: Then I misunderstood.
4 THE COURT: Is there a paper I can read that you
5 have done on this? Is there anything other than your
6 anecdotal discussions with people?
7 THE WITNESS: Probably the -- there is a test that
8 we will talk about that I have compiled that, in the context
9 of this testimony, that I just compiled a couple of weeks
10 ago and that's, I think, the only thing.
11 THE COURT: Just compiled a couple weeks ago?
12 THE WITNESS: Yes.
13 THE COURT: Go on. Let see where he goes and see if
14 it helps in the qualification, and I think he is qualified
15 to do certain things, but let's see. Go on.
16 MR. KOLBO: Your Honor, if I can just make it clear,
17 we have an objection on foundation. We don't -- we believe
18 this witness hasn't been qualified as an expert on test
19 design and psychometrics and --
20 THE COURT: I agree with you, and that's what I
21 thought we were getting into.
22 In terms of him teaching the class, in terms of who
23 comes to his class, he is obviously well qualified for that,
24 he has been on campuses, he goes out, part of his job was
25 to start a whole division out in Seattle in terms of getting
93
1 students, but in terms of the other kinds of areas I haven't
2 heard anything other than he has the same degree that I
3 have.
4 MS. MASSIE: But he doesn't have to, as an expert,
5 to be qualified as an expert, he doesn't have to have
6 specialized academic training. I think we agree about that.
7 THE COURT: I absolutely agree, but he has to have
8 more than anecdotal kinds of information if he is going to
9 testify as an expert.
10 Anyhow, let's go. Let me -- we heard, we have heard
11 from experts, so we know what they are, including
12 Dr. Shapiro who testified before, who by training, by every
13 kind of imaginable thing has the expertise to testify in
14 testing areas and statistics and so forth. Go on.
15 The only reason I mention it, I'm looking at your
16 exhibits and --
17 MS. MASSIE: I think Mr. Rosner's testimony will
18 build on Professor Shapiro's.
19 THE COURT: It may build on it, but he's got to have
20 some expertise other than the fact that he is a lawyer and
21 he works for a company that gives classes on testing.
22 MS. MASSIE: Let me try, continue trying to
23 establish that.
24 THE COURT: Sure.
25 BY MS. MASSIE:
94
1 Q You have trained teachers?
2 A I have trained test preparation instructors, yes, to
3 teach SAT courses and LSAT courses and other courses.
4 Q And you have made a study of test items and their
5 impacts on minority students as a part of your job
6 responsibilities?
7 A I have, over the last five years, not in the more
8 formal sense that the Judge was talking about in terms of
9 writing a journal article, but it's my job to try to
10 understand how minorities respond to and react to and can
11 answer better individual test questions. That is a central
12 part of my job.
13 THE COURT: Central part of your job now that you
14 have become the Director of this Institute, and you became
15 the Director of this Institute when?
16 THE WITNESS: In 1995, Your Honor.
17 Not -- actually, it predates that, because it was
18 also part of my job when I was teaching predominantly white
19 students in Seattle in the late '80's to understand how
20 those students in a test preparation context would better
21 answer individual test questions. That's what a test
22 preparation person does.
23 And my focus has been on minority students since
24 '95, in that regard.
25 BY MS. MASSIE:
95
1 Q And Mr. Rosner, you seek through the Foundation to
2 make an intervention in testing bias and the test score gap;
3 correct?
4 A Yes.
5 Q And that means seeking to understand it; correct?
6 A Yes. Understanding the test score gap and the
7 components that go into it and the questions that feed into
8 it is part of trying to reduce that gap in my work with
9 minority students.
10 Q And that means trying to understand what contributing
11 causes are to the test score gap; correct?
12 A Yes, as best I can, yes.
13 Q And that means being able to make clear on the basis
14 of hard information to minority students when you speak with
15 them that the test score gap is not a product of their lack
16 of qualifications or lack of capacity; correct?
17 A Yes, that's right.
18 Q Tell us how you know that there is a test score gap.
19 A Well, anyone who looks at the average results of tests
20 like the SAT or the LSAT sees that there are very disparate
21 impacts on under-represented minority populations,
22 particularly African Americans and Latinos. There is also
23 gaps between men and women, as Professor Shapiro pointed
24 out, but the focus of my work has been primarily on African
25 Americans students, secondarily on Latinos students.
96
1 Q And do you agree with Professor Shapiro that the
2 characteristics of this gap are broadly similar across the
3 different standardized admissions tests widely used in the
4 United States?
5 A Yes, the gaps, if we focus on the SAT and the LSAT,
6 for example, the gaps are persistent. They are consistent
7 and they operate the same way, and have, between whites and
8 blacks, for example, as they have for the last ten or twenty
9 years. They are also consistent on the other most common
10 admissions tests, like the GRE, et cetera.
11 Q I would like to turn your attention to the question of
12 -- to the matter, to avoid the word I was about to use --
13 of question selection, item selection, because I think
14 you'll be able to concretize for the Court some of the
15 points that Professor Shapiro was making earlier today.
16 A Yes. I have been concerned about item selection for
17 years, and have acquired some data recently that I think
18 illuminates concerns that I have had for a long time about
19 how test items are selected.
20 Q And why have you been concerned about it?
21 A I recall an article that I wrote in 1993 that focused
22 on test question selection, and in that article I used the
23 distinction between males and females, but in thinking about
24 these topics after that article it became apparent to me
25 that the much more significant test score gaps are between,
97
1 for example, whites and blacks. I think your question was
2 why, and the answer is, it relates to my work.
3 THE COURT: From now on, please answer the question.
4 THE WITNESS: Yes.
5 BY MS. MASSIE:
6 Q Mr. Rosner, if I could direct you to Exhibit 202.
7 MS. MASSIE: So everyone knows, we expect to
8 introduce Exhibit 201 through a subsequent witness, that's
9 why we're skipping it.
10 BY MS. MASSIE:
11 Q Tell us what's going on with this exhibit, if you
12 would.
13 A Sure. Very briefly, I wrote Black or White Preference
14 Question at the top. That's something that I just raised
15 for an issue. This is an antonym question, an SAT antonym
16 question.
17 You'll notice the instructions, chose the opposite,
18 and what the test taker is supposed to do is to chose the
19 word that is the best answer for a word that is opposite in
20 meaning to the word, reneg, and very briefly, you'll see
21 that the answer C is in italics. That was in italics in the
22 San Francisco Chronicle, which was the source of this
23 particular information.
24 And so the correct answer is C, but that's not what
25 is really significant about this question. What is
98
1 significant is what I have in smaller print on the bottom,
2 and that is the results are that African Americans do
3 significantly better defining the antonym than do whites.
4 That's a quote from the San Francisco Chronicle, citing ETS.
5 And because African Americans do answer this question
6 correctly at higher rates than whites, I call this a black
7 preference question, and a white preference question has the
8 opposite meaning, that --
9 THE COURT: How would you know this, other than you
10 saw it in the San Francisco Chronicle?
11 THE WITNESS: Well, that's the point, Your Honor,
12 you would not.
13 THE COURT: What special knowledge do you have
14 concerning this other than you saw it in the San Francisco
15 Chronicle?
16 THE WITNESS: The special knowledge --
17 THE COURT: Have you done any testing of your own,
18 done anything like that?
19 THE WITNESS: I have talked to minority students.
20 THE COURT: My question is, have you done any
21 testing?
22 THE WITNESS: No.
23 THE COURT: Your source is the San Francisco
24 Chronicle?
25 THE WITNESS: Yes, whose source is Educational
99
1 Testing Services.
2 THE COURT: Did you go to them and talk to them
3 about it?
4 THE WITNESS: No, I didn't.
5 THE COURT: All right.
6 BY MS. MASSIE:
7 Q I see that this question was rejected for use on the
8 SAT?
9 A Yes, this was a question that was rejected for use on
10 the SAT.
11 THE COURT: How do you know that?
12 THE WITNESS: Again, that's -- that was quoted in
13 the San Francisco article citing ETS. The purpose of the
14 article --
15 THE COURT: So your source is the San Francisco
16 Chronicle?
17 THE WITNESS: Yes.
18 THE COURT: You didn't go back to them and say, hey,
19 I have to testify in court. Did you reject it? Why did you
20 reject it? Is there a reason you rejected it? Did you use
21 it later?
22 Did you do any of those things?
23 THE WITNESS: No.
24 THE COURT: Yes or no?
25 THE WITNESS: No, I didn't.
100
1 THE COURT: You may continue.
2 BY MS. MASSIE:
3 Q And does this question -- just looking at this
4 question on the face of it, would you imagine that there
5 would be a significant gap in performance?
6 A This question looks like a typical SAT question. I
7 have seen many hundreds of antonym questions. There would
8 be no way that looking at this question -- I would like to
9 find a way, but there is no way that I could tell that this
10 is a black preference question by looking at the face of the
11 question.
12 Q And Mr. Rosner, what's the source of the gap in
13 performance on this question?
14 A The source of the gap -- well, this question is
15 clearly capturing something about race, because racial
16 groups answer it in disparate fashions. Beyond that,
17 despite my expertise and working with lots of minority
18 students, I can't be more specific as to exactly what about
19 race this is capturing.
20 Q It's capturing something that we don't yet know how to
21 describe or define?
22 A Something that I can't yet describe.
23 THE COURT: The only reason you know that is because
24 you read it in the San Francisco Chronicle?
25 THE WITNESS: That's right, Your Honor.
101
1 BY MS. MASSIE:
2 Q Why is it -- is it easy, Mr. Rosner, to get pretested,
3 rejected questions, questions that are pretested and then
4 not use on a scored test?
5 A No, it isn't.
6 And in fact, Your Honor, in partial answer to an
7 earlier question, I have asked Law Services for these
8 kinds -- this kind of data information, and they say there
9 is none publicly available. I haven't asked ETS about SATs.
10 I asked Law Services about LSAT questions.
11 THE COURT: But you know that Dr. Shapiro testified
12 that he was able to get some of that information through
13 litigation, not through --
14 THE WITNESS: Yes, and he is --
15 THE COURT: That's all.
16 THE WITNESS: Yes.
17 THE COURT: Go ahead.
18 BY MS. MASSIE:
19 Q Let me ask you to look at Exhibit 203.
20 Tell us about that question briefly, if you would.
21 A Okay. Very briefly, this is a sentence completion
22 question. It's another SAT question. The objective here is
23 to pick from among the five answers the pairs of words that
24 best fit into the meaning of the sentence with the two
25 blanks. Again, I note at the bottom the correct answer is
102
1 C, and again that's not what is most significant about this
2 question.
3 Most significant about this question as it pertains
4 to this case is that eight percent more African American
5 than whites answered this question correctly, again, a quote
6 from the Wall Street Journal, which again cites Educational
7 Testing Services.
8 And the disposition of this question, as the last
9 question, was this is a black preference -- again, my label
10 entitled a black preference question that was also rejected
11 for use on the SAT after pretesting. They told us in the
12 article that the pretesting was done in 1998.
13 Q Looking at this question, Mr. Rosner, does it seem
14 like a typical SAT question?
15 A Same as the last question, this looks to me like a
16 typical sentence completion question. I have seen hundreds
17 of these on the SAT. Yes.
18 Q And do you have any greater ability to explain in this
19 instance how the question captures something about race in
20 our society?
21 A No, same answer as to the last question.
22 Q Okay. Let me direct you to Exhibit 204. Tell us what
23 this is about, if you would.
24 A Yes. This is a math question, a math SAT question.
25 It's an algebra question, because it uses X as a variable,
103
1 and the question asks about the square root of a number.
2 The correct answer here is C, and again, that's not what is
3 really important here.
4 What's really important is the results which I
5 quoted from the Wall Street Journal, that seven percent more
6 African Americans than whites answered this question
7 correctly. It's a black preference question. It also is
8 rejected for use on the SAT after pretesting, as I have
9 written on the bottom there.
10 Q Looks like a normal question.
11 A Looks like any one of hundreds, many hundreds of
12 algebraic questions that I have seen on the SAT.
13 Q And do you have any idea what it is about this
14 question that --
15 A Same answer, it's capturing something about race
16 generally, but I can't be specific despite my experience as
17 to what it's capturing.
18 By the way, for students in the room, if I can just
19 say --
20 THE COURT: We're not here -- we're just here to
21 answer the questions.
22 THE WITNESS: Okay. I'm sorry, Your Honor.
23 THE COURT: But since you piqued their interest, you
24 can tell them now. The rule is -- you're a lawyer, and you
25 know the rules, but go on, since you've piqued mine, too.
104
1 THE WITNESS: Okay. One sentence.
2 If X equals one half, you can get the correct
3 answer. If you don't see that, there is a little trick
4 built into the question. You just won't get the correct
5 answer. I didn't want students to be puzzling about this
6 for a couple of hours.
7 THE COURT: I agree with you, but it's --
8 MS. MASSIE: I'm hoping that my inability to
9 understand what you just said doesn't predict failure in my
10 future.
11 THE COURT: You don't have to take the test again,
12 so you don't have to worry about it.
13 BY MS. MASSIE:
14 Q You have just shown us three rejected pretested
15 questions on which black test takers outperformed white test
16 takers?
17 A That's right.
18 Q And in general, those kinds of questions aren't
19 available, that's why you're using data from a newspaper,
20 true?
21 A Very few of these questions are available. None are
22 available for the LSAT, very few are available for the SAT.
23 THE COURT: They must be somewhat available. Two
24 newspapers were able to receive them and write pretty
25 lengthy stories, it looks like, but go on.
105
1 BY MS. MASSIE:
2 Q Have you seen, other than these questions, have you
3 seen a lot of rejected pretested questions?
4 A On the SAT, I have seen approximately twelve pretested
5 questions that were rejected and those were all questions in
6 these two newspaper articles.
7 THE COURT: Did you ever -- you know, Professor
8 Shapiro was kind enough to tell us they put out this paper
9 about every test. Have you ever read one of those?
10 THE WITNESS: No, but what he didn't say about that,
11 Your Honor, is that they don't have the statistics for each
12 individual question. They --
13 THE COURT: Do you know that?
14 THE WITNESS: They have the statistics for the test,
15 as I understood what he was saying.
16 THE COURT: But you have never seen one, you have
17 never asked for one? They obviously were pubic. He was
18 able to get them.
19 THE WITNESS: Yes, I have never seen one, never
20 asked for one.
21 THE COURT: Never knew they existed before you heard
22 his testimony, did you, or did you?
23 THE WITNESS: Not -- I know they make -- they make
24 information available. I don't know that that specific
25 information was available to that extent.
106
1 MS. MASSIE: Well, Professor Shapiro didn't say they
2 had item specific information, right?
3 THE COURT: Well, I heard his testimony. I wanted
4 to know if he heard of them. I don't know what's in there.
5 I just know what Professor Shapiro testified, is all.
6 Go on.
7 BY MS. MASSIE:
8 Q Mr. Rosner, let me ask you this: Is it only black
9 preference questions, to use your phrase, black test takers
10 that outperform white test takers, that are rejected by ETS
11 for use on tests?
12 THE WITNESS: No.
13 MR. KOLBO: Objection again on foundation.
14 THE COURT: He is testifying what he read in the
15 newspaper, and with all due respect to the newspapers, they
16 are my favorite thing to read every morning and every night,
17 and I was just on an airplane and I couldn't get through an
18 airplane trip without four or five newspapers, but his
19 knowledge is limited to what he reads in the newspapers. He
20 said that he has never tried to get the information. I
21 don't -- we're sitting here reading the newspaper.
22 MS. MASSIE: Judge Friedman, he has made a study of
23 the sources, the character, the impact of the selection of
24 these kinds of questions.
25 THE COURT: I'll give you a little more latitude,
107
1 but he even just testified that he doesn't know why the one
2 group or other group would do it other than what he read in
3 the Wall Street Journal or that he read in the Chronicle.
4 MS. MASSIE: But that's because this society hasn't
5 finished understanding race, that's the whole thing.
6 THE COURT: The whole thing is, you're right, except
7 he is here as an expert. I mean, an expert doesn't get
8 their data out of the newspaper.
9 MS. MASSIE: But Judge, these questions look like
10 you, anybody reading these questions, would think there is
11 not a racial bias in that question.
12 THE COURT: I agree.
13 MS. MASSIE: There is no insult there. There is
14 nothing in it that's a reality distractor.
15 THE COURT: Absolutely. If you said, these
16 questions, do you think there is a bias, I would say I had
17 no idea, because, you know, I probably couldn't answer them,
18 but that's not the issue. The issue is that all he is doing
19 is he is telling us what a newspaper article had to say
20 about these and he can't -- he does not know why and he said
21 he doesn't know why. He has been very honest.
22 Hundreds of thousands of others ones, he said --
23 MS. MASSIE: Judge Friedman, there aren't released
24 pretest items that are publicly available.
25 THE COURT: Okay. Go on.
108
1 BY MS. MASSIE:
2 Q Do they reject questions on which white test takers
3 outscored black test takers as well or do they only
4 reject those --
5 THE COURT: Or do you know?
6 THE WITNESS: I do know.
7 THE COURT: Okay.
8 THE WITNESS: And they reject white preference
9 questions, also.
10 BY MS. MASSIE:
11 Q Tell us how you know that and please explain.
12 A Because of the dozen problems in the newspaper
13 articles, there were about seven or eight white preference
14 questions that were also rejected.
15 Q Do you have any other source of information on that
16 proposition?
17 A No, that is the entirety of information that I have,
18 that I have with regard to pretested rejected questions.
19 Q And how about on the scored sections, do they only
20 include white preference questions?
21 A Well, a later exhibit will demonstrate that. The
22 answer is, on the scored sections, the scored sections are
23 virtually entirely comprised of white preference questions.
24 Q Please tell us which exhibit you want us to take a
25 look at.
109
1 A The next one, labeled 205.
2 And this was the study that I did that I referred to
3 earlier, Your Honor.
4 Q Tell us what's going on on this sheet of paper.
5 A Sure. I was able to obtain data on four SAT's,
6 actually, through Professor Shapiro, who had this data.
7 These were four SAT's administered to all students in the
8 State of New York in 1988 and 1989, for test forms at four
9 administrations, and this data had specifics for individual
10 questions, and that's what we're talking about, and that's
11 what I'm looking for.
12 And so I looked at the 580 questions that comprised
13 the four SAT's and I simply counted the number of white
14 preference questions, the number of black preference
15 questions, because I had the data of the percent answering
16 correct, rate for whites and blacks. That was in the data
17 set which is appended to my supplemental report. And I was
18 able to count only one black preference question and 574
19 white preference questions.
20 You'll notice a category, if I may continue, you
21 will notice a category on the bottom, it says, no preference
22 questions. Those were questions that were answered at
23 exactly the same percentage rate by whites and blacks.
24 Q And how many students took the tests that are the
25 basis of this count?
110
1 A The four tests were taken by in excess of 200,000
2 students. This is a very, very substantial data sample.
3 Q 200,000 students each?
4 A No, combined, 200,000 students. Approximately 90,000
5 students took two of the four tests. Another test was taken
6 by 20,000 students, and the final test was taken by 11,000
7 students.
8 Q Did you do any other analyses of the impact of these
9 four test forms on minority students?
10 A Yes. That would be the next exhibit.
11 Q And tell us about this.
12 A Very briefly, this, I mentioned before I had the
13 percent correct. The data set included the percent correct
14 for each question of whites, the percent correct for each
15 question of African American students, and the percent
16 correct for each question for Hispanics.
17 So the last sheet I did a white/black comparison.
18 For this sheet I did a white/Hispanic comparison, and where,
19 as I said before, the white answering percentage was higher,
20 that was a white preference question. Where the Hispanic
21 answering correct percentage was higher, that was a Hispanic
22 preference question.
23 And the breakdown is that of the 580 questions, I
24 found 11 Hispanic preference questions and 566 white
25 preference questions, with only three neutral, which I call
111
1 no preference question. Again, answered rates of whites and
2 Hispanics were at the same percentage for those three
3 questions. And these were all questions selected for use on
4 actual SAT's in the prior exhibit. Those were all -- these
5 are the same 580 questions selected for use on actual SAT's
6 administered to students.
7 Q So in other words, they are not questions that were
8 rejected after pretesting?
9 A No, they were in fact questions that were selected
10 after pretesting.
11 Q Do you have those questions?
12 A I managed to get those questions, yes.
13 Q And you have some here, of course?
14 A That is, I managed to -- I had the answering correct
15 data only and then I managed to get the content of all of
16 those questions.
17 Q And were you able to take a look at that?
18 A Yes. Then I studied the content of those questions
19 with regard to the answering percentages.
20 Q You have some here?
21 A The next exhibit is one of those questions.
22 Q That's the one that says oblivious at the top?
23 A Yes. And it's an antonym question like we discussed
24 before. Would you like me to briefly go over what's on
25 here?
112
1 Q Please do.
2 A Okay. Again, the test taker is to chose the opposite.
3 The correct answer is C. And the results of this question,
4 which were in the data set, is that 27 percent more whites
5 than African Americans answered this question correctly.
6 This was on the SAT form that I note there in the -- toward
7 the bottom right-hand corner.
8 And the disposition here, this was one of the 574
9 white preference questions to appear on these four tests in
10 doing a white/black comparison, and this question happens to
11 be the verbal white preference question with the largest
12 percentage difference. This is a large -- not only a large
13 gap between whites and blacks, but the largest gap for the
14 verbal questions.
15 Q Is this question supposed to be, in the eyes of ETS,
16 an easy or a hard question or a medium question, if you
17 know, and how do you know?
18 A Yes, this was an easy question. I know that, one,
19 from its placement on the test, and two, because the correct
20 answering percentage for whites was 83 percent, which is an
21 easy question.
22 Q So --
23 A At least for whites it was an easy question.
24 Q Say more about the question number, the question
25 placement, I'm sorry.
113
1 A That was question number four out of ten to fifteen
2 antonym questions, and the questions in the one, two, three,
3 four positions on the test are easier questions, typically,
4 answered by 70 -- answered correctly by 75 percent or more
5 of test takers.
6 Q Here, is there anything, looking at this, at this
7 question on its face that let's you -- enables to you
8 explain how it is that it has such a disparate effect on
9 test takers?
10 A No, nothing on its face. I would have to look at
11 statistics.
12 Q Let's turn to --
13 THE COURT: Let me just ask one question.
14 I note that's 1988. If we were to believe Professor
15 Shapiro, he indicated something to the effect that after
16 each test they go over and they analyze each question in
17 terms of different things, one of them being, you know, to
18 improve upon it, I forget exactly his words, but he was very
19 eloquent.
20 Would twelve years make a big difference, or do you
21 know?
22 THE WITNESS: Not in my experience, having worked
23 with students and looked at the results. These things,
24 particularly the SAT is extremely constant from year to
25 year.
114
1 THE COURT: In terms of results, but you have never
2 looked at -- these are the only individual questions you
3 have ever looked at?
4 THE WITNESS: These are the only individual
5 questions, Your Honor, I have looked at where I have the
6 percentage answering rates for whites versus blacks.
7 THE COURT: Go on.
8 BY MS. MASSIE:
9 Q So we're on 208, am I right?
10 A Yes.
11 Q Tell us about this. What is this question about?
12 A This is a math question from the SAT. It's a
13 particular, unusual kind of question called quantitative
14 comparison, that's the question type, and you're given two
15 values.
16 If you look down in the middle of the page, you will
17 see Column A and Column B, and the task for the test taker
18 is to decide whether Column A is greater, Column B is
19 greater, whether the two quantities are equal or whether
20 there is not enough information to answer the question, and
21 the answer choices, A, B, C, D, reflect those different
22 decisions by the test taker.
23 Q Tell us what is of interest about this question for
24 the overall test score gap.
25 A Well, what's interesting, certainly the correct answer
115
1 is D, what's interesting about this question is that as I
2 note below, three percent more African Americans than whites
3 answered this question correctly. This was a difficult math
4 question. It is -- and if you note the question position,
5 the source is noted there, it was question number 25.
6 And the disposition of this question is that this
7 was the -- this was that one black preference question that
8 existed on all four tests, so if you're looking for black
9 preference questions on the test, this was it.
10 Q So this was the one out of 580?
11 A One out of 580, yes.
12 Q And again, for this question and the last one, is
13 there anything in it that would cause you to think that
14 there might be something quirky in the data or there might
15 be a big gap just looking at the question on its face?
16 A On its face, my answer is the same as before. It's
17 capturing something about race, but I couldn't be more
18 specific than that.
19 The answering rate, by the way, I wanted to -- the
20 answering, this is a difficult question. Whites answered
21 this question -- 14 percent of whites answered this question
22 correctly, 16 percent of blacks, and the difference being
23 three percent, it was because of rounding.
24 Q Is that their rounding or yours?
25 A That's their rounding.
116
1 Q ETS?
2 A Yes, this three percent was their data in a table, as
3 was 16 percent and 14 percent.
4 Q Let's look at your final question here. This is
5 Exhibit 209?
6 A Yes. This is a math question, a geometry question,
7 very common on the SAT. Again, this is a question from
8 those four released tests. The correct answer, as I note,
9 is D. The results here are again from the table, 32 percent
10 more whites than African Americans answered this question
11 correctly. It's a white preference question, as were all
12 the questions on the test other than the last one, except
13 for the neutral questions.
14 And at the bottom I note, this happens to be the
15 math white preference question with the largest percentage
16 difference of all the white preference math questions on the
17 four tests selected to appear on the SAT.
18 Q Do you think that the questions -- that the individual
19 questions you have talked about so far this afternoon, that
20 they have any capacity to tell us anything about the overall
21 verbal or math skills of the test takers by race or in
22 general?
23 MR. KOLBO: Object to foundation.
24 THE COURT: Sustained.
25 BY MS. MASSIE:
117
1 Q Do you think that the gaps that you have indicated
2 exist in terms of correct answering rates, gaps by race in
3 terms of correct answering rates to these questions, whether
4 they are the questions on which the black test takers
5 outscored the white test takers or vice versa, indicate
6 something about the overall verbal or mathematical abilities
7 and competencies of the test takers?
8 MR. KOLBO: Same objection.
9 THE COURT: Sustained.
10 BY MS. MASSIE:
11 Q Mr. Rosner, what do these numbers mean?
12 A Which numbers are you referring to?
13 Q The gaps.
14 MR. KOLBO: Well, Your Honor, I don't like to pop up
15 and down, but I think it's the same question and I have the
16 same objection.
17 THE COURT: Same ruling.
18 BY MS. MASSIE:
19 Q Based on your experience working with ranges of
20 students in terms of ranges of test scores, students of
21 different races over a period of years, having some sense of
22 how different people answer different questions and what we
23 can deduce from answers to different questions and whether
24 you get a question right or wrong, do you believe that these
25 gaps mean, for example, in the first several questions, that
118
1 black test takers as a whole have a nine percent better
2 vocabulary than white test takers?
3 MR. KOLBO: Objection on foundation.
4 THE COURT: You know, there is no foundation that he
5 has anything other than his own personal opinion. He is
6 here as an expert. If you want to ask him expert questions
7 within his realm, you can ask him. He is not --
8 MS. MASSIE: He has worked with hundreds of
9 questions with test bias, different impacts and outcomes, he
10 has coached teachers, he has studied the test. I don't
11 understand how he could be more of an expert about the
12 relationship between --
13 THE COURT: I do. I made my ruling.
14 MS. MASSIE: Okay. Well, I need to make my record.
15 We need to be able to develop this kind of question in order
16 to make our case.
17 THE COURT: Your objection is noted.
18 BY MS. MASSIE:
19 Q Is the rejection of questions on which black and other
20 minority test takers outperform white test takers the source
21 of the test score gap?
22 A Selection of questions, yes. The selection of
23 questions obviously from this data, which is consistent --
24 this data confirms my experience over thirteen years that
25 the tests are comprised of white preference questions
119
1 virtually entirely. Actually, three of these four tests
2 were entirely white preference questions with a few neutrals
3 and then one test had one black preference question and
4 that's -- this confirms the experience that I have seen over
5 the years working with students on these questions and
6 seeing their scores at the end of the process.
7 Q And is it that all the questions on which white
8 students are outperformed by other students, is it that
9 those questions are weeded out, is that the only source of
10 the gap?
11 A No, the question selection process is not the only
12 source of the test score gap, but in my opinion, it's a
13 central key, critically important source of the test score
14 gap.
15 Q And in terms of the questions that are selected for
16 inclusion on the test, do they mostly fall in the same range
17 of disparate impact on minority students?
18 A No, and the next exhibit outlines that.
19 Q Which is to say, Exhibit 210; is that right?
20 A Yes, Exhibit 210.
21 Q Okay. Tell us about this exhibit, Mr. Rosner.
22 A Actually, we just said range, I was thinking of a
23 narrow band, and in fact, they do fall in a range. It's a
24 wide range.
25 So to clarify my previous answer, I specifically
120
1 looked at the ranges of differences in percentage answering
2 rates and they were large. This simply lists the ranges of
3 answering of differences in percentage answering rates when
4 I did the black/white comparison and when I did the
5 Hispanic/white comparison, and the first paragraph notes
6 that for the 574 white preference questions on the four
7 tests that I have been talking about, there was a range on
8 the white preference questions from one percent to 32
9 percent, and I note that 108 of the 580 questions had a 20
10 percent or more gap favoring whites.
11 By the same token, I took a look at the white/
12 Hispanic comparison and that was also a large gap ranging
13 from one percent to 28 percent. Again, these are all
14 questions that are selected to appear on the test where
15 those who were selecting the questions know this data ahead
16 of time. That's what the pretesting process is all about.
17 Q And what would happen if you picked different
18 questions?
19 A You would get different results, and I actually did
20 that.
21 Q Tell us about that.
22 A I compiled a test using these 580 questions as my
23 test, as my question pool.
24 THE COURT: The 580 questions, the '88, '89
25 questions?
121
1 THE WITNESS: That's right. For 580 questions from
2 '88, '89, for which I had data for each question.
3 THE COURT: When did you do this?
4 THE WITNESS: I did this approximately two weeks
5 ago. I obtained the questions approximately a month ago,
6 having had the data a little earlier than that, I believe.
7 And so I compiled the test form and was able to
8 alter the results considerably, picking from their
9 questions, picking from selected SAT questions.
10 We have a demonstrative exhibit that outlines what I
11 found when I did that.
12 BY MS. MASSIE:
13 Q Is that the one that does not have a number that was
14 handed out for everybody's information?
15 A That does not have a number in the lower right-hand
16 corner.
17 Q Tell us about -- tell us about the test that you
18 constructed.
19 A Well, I called this, at the top, the Reduced White
20 Preference SAT Form, that's a name that I gave it. Again, I
21 state here it's created from the '88, '89 SAT question pool,
22 which was 580 questions, and then I compared how my new form
23 behaved and the kind of results that it generated with how
24 the prior forms behaved; in other words, the results that
25 they generated.
122
1 Q And what did you -- did you impose any constraints
2 on yourself?
3 A Yes. When I constructed the new SAT form I chose
4 145 questions, because that's what was on the SAT at that
5 time. It's since been reduced by a couple of questions.
6 And when I chose those 145 questions, I paid very
7 close attention to question category, question difficulty,
8 question type, so that I created a test that I was
9 comfortable with that looked -- that looked like any
10 other SAT, that looked in fact like the other four SATs.
11 THE COURT: So you have never had any training in
12 creating a test, putting them together, other than your
13 experience in teaching the SAT's and LSAT's?
14 THE WITNESS: We put tests together when we teach
15 the SATs and the LSATs, but no, not with this kind of
16 orientation.
17 THE COURT: And you realize there are people that
18 are trained in that area?
19 THE WITNESS: Yes, psychometricians are trained to
20 pick white preference questions here.
21 THE COURT: Go on.
22 THE WITNESS: And what I found is, if you look at
23 the -- it's a little clearer to explain if you look at the
24 bottom first here. You notice on the left-hand margin, test
25 form zero, test form one, test form two, and test form
123
1 seven. Those were the four different test forms with the
2 date that they were administered the test form.
3 And then what I did was I compiled for each of
4 the tests the average white correct answering percentage
5 for 145 questions on that test, and that's the first column,
6 and then the average black answering correct percentage for
7 the 145 questions on the test, that's the second column, and
8 then the difference, which is the third column.
9 So for example, test form zero, 48 percent was the
10 average white answering correct percentage for all the
11 questions; 36 percent, the average black answering correct
12 question, and 12 percent the average difference.
13 And then if you look down, you'll see I did the same
14 thing for the three other tests. Then I took an average
15 of those four tests, and that is at the very bottom.
16 The 53 percent was the average white answering
17 correct percentage, 40 percent average black answering
18 correct percentage, and the difference I carried out to one
19 more decimal place, which was 13.2 percent or 13 percent,
20 if that would -- if one deems 13 percent more appropriate.
21 Now, if you look at the top, here's what I found
22 when I compiled my new test form, and I knew that it would
23 be reduced, but I didn't know how much until I compiled it.
24 I had the white answered correct percentage was
25 significantly lower at 47 percent, the black answering
124
1 correct percentage remained about the same at 40 percent,
2 but the difference was significantly lower, and 13.2 percent
3 down to 7.8 percent represents a 40 percent reduction in
4 the black/white gap on the four tests, comparing the tests
5 I compiled and the average of the four tests that were for
6 which I had data.
7 Q And you again used questions in the same difficulty
8 range?
9 A I said before, I paid very close -- I didn't pick --
10 I could have picked the 145 questions with the lowest gaps
11 and that would have produced an even lower percent, but
12 it was -- it was fair to construct what would have the
13 structure and appearance and difficulty level and test
14 question variety that a regular test form did, so that's
15 the process that I used.
16 THE COURT: You ran this by somebody like Professor
17 Shapiro to make sure you got this right and that's how they
18 do it in the industry?
19 THE WITNESS: I did not run it by Professor Shapiro.
20 I used my own experience of looking at dozens and dozens of
21 these tests and knowing how they are structured to match up
22 question type and percentage.
23 BY MS. MASSIE:
24 Q Are you trying to do it like they do it in the
25 industry?
125
1 A I was trying to do -- well, the way they do it in
2 the industry is they chose all white preference questions
3 with very significant ranges. I specifically was trying
4 to reduce those ranges. In any set of choices that I had,
5 I was trying to chose the question with the smallest
6 difference, black/white difference, consistent with general
7 difficulty level, question type, question style.
8 Q And what was your purpose in doing this?
9 A The purpose was to highlight and emphasize what a
10 dramatic difference can be made even if you're choosing all
11 white preference questions or virtually all white preference
12 questions, a dramatic difference can be made by paying very
13 close attention to the question gaps and in fact having as a
14 priority trying to minimize those gaps, even though you're
15 working with selected SAT questions.
16 Q So it was a demonstrative exercise?
17 A It was a demonstrative exercise.
18 Q What role do you detect that randomness plays in the
19 numbers that you have told us about today?
20 MR. KOLBO: Objection to foundation, Your Honor.
21 BY MS. MASSIE:
22 Q Mr. Rosner, do you have an opinion on whether these
23 processes are systematic or whether they are in fact
24 affected with a large level of randomness?
25 MR. KOLBO: Same objection.
126
1 THE COURT: Sustained.
2 BY MS. MASSIE:
3 Q Mr. Rosner, in your work with the tests and with
4 students over the years, your work studying the tests and
5 its effect on students, your work training teachers, your
6 work reading material on the tests, have you come to a
7 conclusion about whether the outcomes on the test are the
8 product of design or chance?
9 A Clearly the product of design. That was clear to
10 me before I had this data and I believe this data simply
11 confirms what I have experienced all along in my test
12 preparation work.
13 MR. KOLBO: Well, Your Honor, I'll just move to
14 strike. That was a yes or no question and I'll object.
15 THE COURT: I'll overrule. I'll give it as much
16 credibility as it deserves.
17 MS. MASSIE: There is no need to insult the witness.
18 THE COURT: I'm not insulting anybody. Credibility
19 is up to the Court and that's why I overruled his objection.
20 MS. MASSIE: You have been insulting the witness
21 the entire time he has been on the stand this afternoon.
22 BY MS. MASSIE:
23 Q Mr. Rosner, could you please summarize for us your
24 view of the relationship between question selection and
25 the overall test score gap by race on the LSAT?
127
1 A Sure.
2 MR. KOLBO: Object to foundation, Your Honor.
3 THE COURT: I'm sorry, I didn't hear the question.
4 BY MS. MASSIE:
5 Q Can you please summarize for us your opinion on the
6 relationship between question selection procedures and the
7 score gap, the test score gap by race on the LSAT?
8 A The question selection procedures on the LSAT are
9 identical to this question selection procedure that I have
10 been talking about for the past hour, and that is, white
11 preference questions are chosen for the LSAT in a great,
12 great predominance.
13 MS. MASSIE: Thank you, Mr. Rosner.
14 THE WITNESS: By the way, Your Honor, I don't feel
15 insulted by you.
16 THE COURT: Thank you. I didn't mean to insult you.
17 MR. PAYTON: Can I have just five minutes?
18 THE COURT: Sure, you can have five minutes. Do you
19 want to take a real break for five minutes?
20 MR. PAYTON: Yes.
21 THE COURT: We will take five minutes. Stand in
22 recess.
23 COURT CLERK: All rise.
24 (Recess taken at 2:42 p.m.)
25 (Back on the record at 2:53 p.m.)
128
1 COURT CLERK: All rise.
2 THE COURT: You may be seated. Okay.
3 CROSS EXAMINATION
4 BY MR. PAYTON:
5 Q Mr. Rosner, I actually just want to ask you some
6 questions about what you testified to when we were last
7 here, which is what your business is.
8 Your business, the Princeton Review, is about
9 improving test scores, SAT scores, LSAT scores for people
10 who are going to take the test, is that it?
11 A My business is the Princeton Review Foundation and the
12 purpose of both the Foundation and the Princeton Review is
13 as you stated, yes.
14 Q Let me just focus on what the Princeton Review then
15 does, because its purpose is just to increase test scores,
16 SAT, LSAT. We will come to the Foundation later.
17 A Okay.
18 Q Okay. And that's also the business of Kaplan; is that
19 right?
20 A That is one of their businesses, yes.
21 Q What's the full name of Kaplan?
22 A Stanley Kaplan Educational Centers, I believe is the
23 full name.
24 Q Okay. And I want to focus on just that part of the
25 business of Kaplan and of the Princeton Review that focuses
129
1 on increasing LSAT scores; okay?
2 A Okay.
3 Q Mr. Washington, I think two weeks ago, referred to
4 that as boosting LSAT scores?
5 A He may have.
6 Q Okay. You seem to react badly to that. Is that --
7 A Well, improving, boosting. One can generate a number
8 of synonyms that would refer to it.
9 Q All right. So is it fair to say that Princeton Review
10 and Kaplan are the two major companies that improve or boost
11 LSAT scores?
12 A Yes.
13 Q And Kaplan is the largest company, Princeton's
14 smaller, but still a large company in this business?
15 A Yes, they are the two -- they are the only two
16 entities of substantial size who do this on a national
17 basis.
18 Q Okay. And am I right that the students that are
19 likely to go to either the Princeton Review or to Kaplan
20 are those students who are actually looking to apply to the
21 more selective law schools, Michigans, Harvards, Yales, not
22 all of them, but are they disproportionately represented
23 among those applicants?
24 MR. KOLBO: I'll object to the foundation, Your
25 Honor.
130
1 THE COURT: If he knows.
2 BY MR. PAYTON:
3 Q If you know. If you know where they apply. Is that
4 speculative?
5 A There is a range and I'm not sure whether -- there are
6 a considerable number and a considerable percentage applying
7 to highly selective institutions. I'm not sure that it's
8 disproportionate.
9 Q Okay. Now, I think you told us that some 70,000
10 students take the LSAT in any given year, that was a rough
11 number?
12 A Right.
13 Q And of the 70,000, some 45,000 are white, is that
14 correct?
15 A That sounds correct to me, yes.
16 Q And I think you said that between Kaplan and the
17 Princeton Review together, you serve about 25,000 of those
18 45,000 white students?
19 A Actually, what I -- the answer is yes, almost, because
20 there are some students who we serve who don't apply.
21 Q Yes, you said some who back out or for whatever
22 reason.
23 A Yes.
24 Q Very small number?
25 A Yes, a relatively small percentage of students who we
131
1 serve don't apply.
2 Q Okay. And I believe you also said that neither the
3 Princeton Review nor Kaplan has more than a token number
4 of black or Hispanic students in their courses?
5 A That's generally true, yes.
6 Q You said you were sad to say that the black or Latino
7 representation was just token numbers?
8 A Yes.
9 Q If any.
10 A That's correct.
11 Q So let me just add that up. These are in essence
12 booster courses for all-white test takers of the LSAT?
13 A Primarily and predominantly, yes.
14 Q And you testified that some studies had been done for
15 both Kaplan and Princeton that indicated that in fact the
16 courses do boost the LSAT scores. I think you said that
17 there was a study of Kaplan and that it boosted LSAT scores
18 by seven points. Do you remember that?
19 A That's correct, and that's appended to my expert
20 report in this matter.
21 Q And I believe you said that there was a similar study
22 done for Princeton, and that it indicated that Princeton
23 boosted LSAT scores by six to seven points?
24 A Yes. I think actually the figure was 6.7 points, but
25 yes.
132
1 Q That's 6.7, so both about seven?
2 A Both about seven.
3 Q And I think you then told us that a seven point boost
4 was quite significant, and I think you said that if it
5 were in the middle range, around 150, that would be a
6 27 percentile difference; is that right?
7 A That's correct, and the 27 percent jump related to a
8 score of 146, I believe, but yes, you get the higher jumps
9 in the middle of the range.
10 Q And I also think you said that this boost, seven point
11 boost in LSAT scores, didn't reflect in any way an increased
12 aptitude for law or law school?
13 A Not at all, as far as I could tell, based on my
14 experience.
15 Q So it's a synthetic boost?
16 A It's a synthetic boost compared to the real world.
17 It's a boost in terms of better understanding and better
18 responding to the test.
19 Q Now, do I then understand this correctly, that given
20 the dramatic boost, say 27 percentile dramatic boost in LSAT
21 scores, on average, for your all white, 25,000 white student
22 clientele in a given year, that you have literally no black
23 or Hispanic participants in your courses?
24 A Token participants.
25 Q You have token participants. Am I right, would you
133
1 agree that the Princeton Review and Kaplan are responsible
2 for much of the test score gap in LSAT scores between
3 African Americans and Hispanics and white students?
4 MR. KOLBO: Object to foundation, Your Honor.
5 THE COURT: Overruled. If he knows.
6 A Kaplan and the Princeton Review are responsible for a
7 portion of the test score gap, which is significant. There
8 was one part of your -- there was an assumption, though,
9 in your question that I need to address. It was a long
10 question.
11 You pointed out the 27 percent boost. You picked
12 the maximum boost --
13 Q I understand that.
14 A -- along the range, and in the context of the question
15 there might have been an assumption that that was a typical
16 boost. Seven points is 27 percent maximum. It's less than
17 that elsewhere.
18 Q As you move up or down?
19 A Yes.
20 Q But if you take it in the middle range, which you
21 directed us to the middle range so you could see what the
22 maximum boost would be --
23 A Right.
24 Q -- if you're in the middle range, it's a 27 percentile
25 boost?
134
1 A No question about that. I think as you made a general
2 set of assumptions in asking your question, though, you
3 rejected one assumption which maximized an effect rather
4 than took a typical effect.
5 MR. PAYTON: I take your point. Thank you very
6 much.
7 THE COURT: Plaintiff, any questions?
8 MR. KOLBO: A few questions, Your Honor.
9 CROSS EXAMINATION
10 BY MR. KOLBO:
11 Q Good afternoon, Mr. Rosner. My name is Kirk Kolbo and
12 I'm one of the lawyers representing the Plaintiff in this
13 case and I just had a few questions for you.
14 First of all, just a clarification. My
15 understanding was, and correct me if I'm wrong, that your
16 estimate is that Kaplan and Princeton Review serve combined
17 about 25,000 students total; is that correct?
18 A Total annually, yes.
19 THE COURT: That includes, I'm sorry, not only LSAT,
20 though.
21 THE WITNESS: No, that's just LSAT, Your Honor,
22 and the breakdowns were approximately 10,000 for Princeton
23 Review, approximately 15,000 for Kaplan, give or take, those
24 were my estimates.
25 BY MR. KOLBO:
135
1 Q And that's 25,000 students including all minority
2 students that attend these courses; correct?
3 A Yes.
4 Q Not just the white students?
5 A That's true. It includes the token number of minority
6 students.
7 Q But you also testified that there are about 45,000
8 white students all together nationally that take the LSAT
9 score; is that correct?
10 A That's the data I have seen from Law Services, yes.
11 Q So there are about 20,000 white students each year
12 that take the LSAT test without taking either the Princeton
13 Review or the Kaplan course; is that correct?
14 A That's correct.
15 Q And then there is another -- over and above that there
16 is another 15,000 of presumably different races that don't
17 take either of those two courses; is that correct?
18 A That's correct. Actually, it's -- if I can amend the
19 prior answer, it's slightly more than 20,000, because there
20 are some who take our course who don't apply, but you're in
21 the ballpark.
22 Q If my math is right, and it's been wrong before up
23 here in front of everybody, there are about twice as many
24 students who don't take either one of these preparation
25 courses as students that could take them; is that correct?
136
1 A Define --
2 Q Total of 70,000, of those about 25,000 students take
3 one or two of these preparation courses?
4 A And would you repeat your question?
5 Q There is roughly, by my count, about 45,000 students
6 that don't take either one of these test preparation
7 courses; correct?
8 A That's right, however, in your hypothetical you're
9 missing the fact that there are regional courses of
10 considerable intensity that I would consider. We were
11 talking about just national courses. There are regional
12 courses of considerable intensity that I would deem to be a
13 fully equivalent or a near equivalent to a Princeton Review
14 or a Kaplan course, so actually, there are more than 25,000
15 students taking intensive courses, with an additional couple
16 of thousand taking a regional course or a local course
17 rather than a national course.
18 Q Okay. Well, still it's then probably no more than
19 30,000 students all together that are taking some kind of
20 a preparation course?
21 A If you're talking about intensive preparation courses,
22 that would be a reasonable estimate, perhaps slightly on the
23 high side.
24 Q And another 45,000 or so who aren't taking any of
25 these type of courses?
137
1 A Slightly more than 45,000, again, because not
2 everybody is applying.
3 Q And I'll let everybody else do the math on that.
4 Is it fair to say it's possible to do well on the
5 LSAT test without taking any of these preparation courses?
6 A Yes.
7 Q There are among that 45,000 plus number of students,
8 there are many of them that do well on the test; correct?
9 A There would be a considerable number who do well
10 on the test without taking an intensive test preparation
11 course, that's correct.
12 Q And one can actually study for the test, the LSAT
13 test, without taking one of these organized preparation
14 training courses; correct?
15 A Certainly.
16 Q You could spend, what is it, 40 or 50 bucks to buy one
17 of the books on the LSAT and study that way?
18 A Yes, you can buy released prior tests, you can buy
19 test preparation books in the bookstore, and one can study
20 on one's own for the test, that's correct.
21 THE COURT: They even have a CD-Rom, don't they?
22 THE WITNESS: CDR's, yes, Your Honor, and there are
23 on-line courses now, so there has been a change in the last
24 couple of years in terms of software and even a greater
25 change in the last year or so with on-line resources.
138
1 BY MR. KOLBO:
2 Q And am I correct that -- correct me if I'm wrong, but
3 is it your understanding that the testing organizations,
4 ETS and ACT, that's the other one?
5 A ACT produces their own high school exam and from time
6 to time has written questions for the LSAT.
7 Q My recollection from your prior testimony at trial
8 here is you're not sure who it is, which of these testing
9 organizations that's writing the LSAT these days; correct?
10 A I lost track of that years ago, yes.
11 Q But is it -- am I correct that it's the position of
12 these testing organizations that test preparation, taking
13 courses like Kaplan's and Princeton Review, does not
14 significantly improve test, actual test performance, is
15 that a fair summary of their position?
16 A That's a fair summary of the position of every test
17 manufacturer. The SAT, ACT, Law Services, the AAMC produces
18 the MCAT, yes.
19 Q And they have taken that position, as you understand
20 it, based on studies that they have had done; correct?
21 A They do their own studies, yes. Are those studies the
22 basis of their position, I think marketing is the basis of
23 their position, but they do have studies to support their
24 position, also.
25 Q Well, do you have any reason to believe that they are
139
1 making this claim in contradiction to the studies that they
2 themselves have produced or sponsored?
3 A Yes, I do.
4 Q And what's that based on?
5 A That's based on reading their studies, which I think
6 are almost humorous in the flaws and fallacies that exist.
7 Q Well, studies themselves at least on their face, they
8 support the ETS and the ACT position?
9 A ETS paid researchers to reach conclusions that support
10 ETS's marketing position, and that's the same for Law
11 Services and the same for every test company, yes. That
12 is -- that is as consistent as the test score gap. That
13 always happens.
14 Q And you disagree with the conclusions that they have
15 reached?
16 A I disagree with the methodology.
17 Q You're not a --
18 A And I'm sorry, and I disagree, yes, and I disagree
19 with the conclusions.
20 Q Just to be clear, and I think this is clear, but
21 you're not formally trained in statistics?
22 A No, I'm not.
23 Q Or psychometrics?
24 A No, I'm not.
25 Q Or psychology?
140
1 A No, I'm not.
2 Q Or education?
3 A I was close to an educational certification to teach,
4 but never got it, so no, I'm not.
5 Q And I think I said this, but if I missed it,
6 psychology, you have no formal --
7 A You didn't miss psychology, and I said that I was not.
8 Q I apologize for repeating.
9 A That's okay.
10 Q And as I understand it from reading your report, it's
11 your position that these testing organizations are motivated
12 in their position that these preparation courses are not
13 significantly helpful because it's profitable for these
14 testing organizations to maintain the perception out there
15 that it doesn't help to prepare for these tests; is that a
16 fair statement?
17 A Not entirely.
18 Q I didn't state it very well, so why don't you tell me
19 what you believe motivates these testing organizations to
20 make these marketing claims that you believe are based on
21 erroneous data.
22 A It's a very simple concept, and the concept is, if
23 you're putting a number out there, a test score which the
24 University of Michigan or any other school is going to rely
25 upon, there has to be a certain sense that that number is
141
1 strong and solid. If there is a sense created that that
2 number can be moved around depending on whether somebody
3 can afford $1,000 for a test preparation course, that number
4 has very little meaning.
5 So there is a very strong marketing and sales
6 imperative, but more personally, an image imperative for
7 the test companies to take a position, and poorly designed
8 studies that conclude that test preparation doesn't work,
9 because the inverse of that that they do work would cut to
10 the heart of reliance on this number, which in fact is not
11 consistent or firm and can be moved pretty dramatically
12 depending on interventions.
13 Q Are these testing organizations, are they for-profit
14 enterprises, as far as you know?
15 A ETS, the largest of the organizations we're talking
16 about, is a non-profit organization.
17 Q Well, part of it, as I understand, though, you're
18 suggesting is that the testing companies in order to
19 justify -- one of the reasons, one of the ways to justify
20 the continued existence and use of these tests is to
21 disparage the value of test preparation courses, is that
22 a fair statement?
23 A That's a fair statement and reflects their behavior
24 over many years.
25 Q Okay. Now, Princeton Review, not the Foundation, but
142
1 Princeton Review, is a for-profit company; is that correct?
2 A Princeton Review is a for-profit company, yes.
3 Q And it makes a lot of money by giving test preparation
4 courses around the country?
5 A I can state emphatically that it doesn't make enough
6 money to satisfy the Princeton Review folks, but it does
7 generate a profit most years in running test preparation
8 courses.
9 Q Okay. And would you agree that the Princeton Review
10 has an interest in persuading and convincing and marketing
11 to people that test preparation courses in fact are valuable
12 in increasing the actual test scores of test takers?
13 A Yes, as does Kaplan.
14 Q And Princeton Review has produced studies showing that
15 use of review courses improves their scores and the testing
16 companies have produced studies saying that in fact they
17 don't improve significantly in performance; correct?
18 A That's correct, but Mr. Kolbo, you have been saying
19 the Princeton Review, and I'm assuming in the last couple
20 of questions you're talking about our for-profit side, you
21 did say that, and the answers to the questions would be
22 different if you talked about the Princeton Review
23 Foundation. I just want to make that point.
24 Q Oh, sure. But who is paying for these studies that
25 support the Princeton Review Foundation on the value of
143
1 these tests -- I'm sorry -- value of test preparation, who
2 is paying for that, the Princeton Review Foundation?
3 A No, you said in your initial question, before you
4 corrected, it was the Princeton Review Foundation. It's
5 the Princeton Review is paying for the study that supports
6 the Princeton Review score gains. The Foundation plays no
7 role in that other -- that I know about it.
8 Q Just to be clear, the Princeton Review certainly has a
9 financial motive for persuading the public that there is a
10 value served by taking these prep, test preparation courses;
11 correct?
12 A Correct.
13 Q Do you have any idea what percentage of the students
14 who apply to the University of Michigan take a test
15 preparation course of some kind, whether it's Kaplan or
16 Princeton Review or one of these regional courses?
17 A No.
18 Q And you have no idea what percentage, I assume, from
19 your answer, in terms of breaking down the percentages of
20 African Americans, Asian Americans, white students, Hispanic
21 students, Native Americans, you have no idea what percentage
22 of those students in those groups applying for Michigan law
23 school take the preparation course; correct?
24 A I don't have specific information as to Michigan, but
25 when you -- as soon as you talk about students overall, as
144
1 soon as you start talking about black students and Latino
2 students, I know the rate at which those students take test
3 preparation courses, I testified several times they take
4 them at token rates, so one can make an inference as to what
5 would happen with those groups applying to Michigan, but I
6 don't have specific information.
7 Q And I just want to -- I think I understand this, but I
8 want to be clear. You have testified several times that
9 only token members of certain minorities take --
10 A Yes.
11 Q -- Princeton Review courses. I assume these courses
12 are open to students of all races and ethnicities?
13 A Students are -- the courses are open to students of
14 all races.
15 If I can amend my last answer, no one, I believe,
16 would know percentages of students in various racial or
17 ethnic groups who have taken courses who are applying to
18 the University of Michigan. I stated in my direct testimony
19 two weeks ago that there are indeed motivations for students
20 not to reveal that information.
21 Q Well, someone can certainly ask, could they not, do a
22 survey?
23 A Oh, that's how -- you have just hit upon something we
24 talked about before. That's how the test companies do their
25 studies. They ask students whether you have taken a course,
145
1 and they assume the response that they are getting is
2 accurate, which is laughable.
3 Q You're not suggesting that it's impossible somehow
4 to commission a survey to find out how many individuals
5 applying to the University of Michigan typically each year
6 have taken a test preparation course?
7 A I assert that that's impossible.
8 Q You assert that it's impossible?
9 A Yes.
10 Q And that's not a question that could, for example, be
11 asked on an application?
12 A Oh, it can be asked. It's just, there is no reason to
13 assume that the answer would be honest or accurate, because
14 the student, as I said, has a motivation not to reveal that
15 information.
16 Q And so because of that --
17 THE COURT: I don't understand. What would be the
18 motivation if they are doing blind surveys? We do blind
19 surveys all the time, send out a blind survey all the time.
20 And when I say blind, you don't have to put your name, no
21 numbers, no nothing. They send them out on Federal Judges
22 at least every, I forget, every four years.
23 THE WITNESS: Understood, Your Honor. The basis of
24 that answer is having discussions with perhaps 50 or 60 or
25 70 students over the last ten years who have said to me,
146
1 there is this question, have I taken a course, what do I
2 say. And I say, you know, you answer the question. I
3 can't tell you to answer it any way but honestly. And the
4 students say, well, they have no business of knowing, I'm
5 not going to tell them.
6 THE COURT: But that's the same thing if you get
7 any kind of survey, some people are honest and some people
8 aren't.
9 THE WITNESS: I think --
10 THE COURT: You think law students are less honest?
11 THE WITNESS: Not to argue with you, Your Honor,
12 but I --
13 THE COURT: I'm not arguing with you. As I say, we
14 all get surveys.
15 THE WITNESS: I think I'm pointing out a difference
16 in this kind of a survey. It would be more -- it would
17 even -- there would even be a greater difference if the
18 University of Michigan asked this.
19 THE COURT: What's so bad about saying, yes, I took
20 a bar review course or I took an LSAT course?
21 I don't want to get into it with you. That's okay.
22 That's okay.
23 THE WITNESS: The short answer to that, Your Honor,
24 is that there are lots of disparagement of these courses
25 coming from the test companies and students can get the
147
1 feeling very easily that I'm not maybe supposed to be doing
2 this.
3 BY MR. KOLBO:
4 Q Do you assume that because a student believes that an
5 answer to a question will be contrary to their interests
6 that they will give a false answer on an application?
7 A As a general principle, no, but in the specific
8 instance, I told you the kinds of experiences that I have
9 had where students indicated to me that they weren't going
10 to give this information, because they had a funny feeling
11 about it and they felt the entity asking the information
12 didn't have any right to know it.
13 Q Another question on preparation, and I'll move on
14 very briefly to something else.
15 We talked about how some students may take one of
16 these formal courses, like Princeton or Kaplan or one of
17 these regional courses and how others students might just
18 buy a book and study that way. Have you done any -- have
19 you conducted any studies to determine or are you aware of
20 any studies that assess the differences in performance
21 between those types of preparation?
22 A I think law -- if we talk about the LSAT, Law Services
23 does a study on the effect of preparation, like all the
24 other companies, and they do this survey data, and I
25 believe -- I believe they do have separate questions on,
148
1 for example, did you prepare using books, did you take a
2 course, so in the context of the methodology that they use,
3 they may have some conclusions as to that distinction, so.
4 Q You don't know what those are?
5 A I don't know what those are.
6 Q You have testified last time and this afternoon about
7 often referring to a number of questions, SAT questions;
8 right?
9 A Yes. Those were all SAT questions. I was unable to
10 obtain LSAT questions.
11 Q And these are SAT questions that are about ten or
12 eleven years old or so?
13 A Yes, twelve or -- in some cases, thirteen years old.
14 Q Now you say that you have testified that you have not
15 had access to LSAT questions; correct?
16 A Let me be clear. LSAT questions, the content of the
17 questions, is available. It always has been. I'm sorry,
18 since 1980 it has been. What is unavailable is the percent
19 answering rate breakdowns disaggregated by ethnicity, and
20 when I talk generally about unavailability, that's what that
21 data is that I'm referring to that is unavailable from Law
22 Services completely, and it's unavailable from ETS except
23 for these four tests.
24 And I checked with Dr. Shapiro. The data that he
25 was talking about, Your Honor, does not include this racial
149
1 breakdown data. So it's entirely unavailable other than
2 what we have talked about in the courtroom here with regard
3 to the SAT and the LSAT.
4 Q But for example, rejected questions, those are a
5 certain form of question that one can take a look at,
6 correct, you have done that with SAT questions?
7 A I have done that with the dozen or so questions that
8 have been made available to me through ETS, through the
9 newspaper.
10 Q And they simply have not been available to you from
11 the LSAT test; correct?
12 A Tried to get them. Was told that they are not
13 publicly available.
14 Q Presumably.
15 A Again, referring "they" to the statistics, not the
16 questions.
17 Q "They" being the testing organization; correct?
18 A Correct.
19 Q And you're not sure which one that is, even, ETS of or
20 its ACT?
21 A No, I'm sure what that is. That's Law Services.
22 Q Law Services, okay.
23 A And they administer the test. The other company
24 subcontracts test writing, test question writing.
25 Q Okay. So Law Services would have -- someone in
150
1 Law Services has this detailed breakdown on performance
2 among racial groups on these tests; correct?
3 A Yes, when they do their DIF analysis, they have them.
4 Q And Law Services has access to these rejected
5 questions that are rejected for various disparate impact
6 reasons; correct?
7 A If the test companies supply them with sets of
8 rejected questions, they have them, and I assume that
9 they have them, or certainly easy access to them.
10 Q And you were here this morning when Professor Shapiro
11 testified?
12 A Yes.
13 Q And explained that he has been able to see, get access
14 to some of these, at least SAT questions in the course of
15 litigation, correct, Illinois litigation, for example?
16 A Yes. Yes, I recall his testimony on that, but Mr. --
17 Professor Shapiro informs me, and again, I checked on this
18 at the break, that other than these four tests, no data
19 like this is available for any SAT question.
20 Q Well, presumably, if a lawsuit was pending and one
21 of the parties served a subpoena on Law Services, there
22 would be somebody there who could answer questions based
23 on this data that's not available to you; correct?
24 A There would be somebody there who would refuse to
25 answer those questions, yes, but who would be capable of
151
1 answering the questions.
2 Q And who would be subject to a subpoena?
3 A Yes.
4 Q You're a lawyer; correct?
5 A Pardon?
6 Q You're a lawyer?
7 A Yes, I am.
8 Q Law Services could be compelled by a Court to make
9 certain disclosures?
10 A They could theoretically be compelled by a Court, yes.
11 Q That just hasn't happened in this case as far as you
12 know?
13 A That hasn't happened in any case with regard to the
14 SAT of which I'm aware or in any case with regard to the
15 LSAT of which I am aware.
16 Q Just to be clear on this, there is -- to your
17 knowledge, there has been no subpoena served on Law Services
18 in connection with this case, correct, for this data?
19 A I could respond to that, but it would be hearsay. I
20 have no direct knowledge.
21 Q Well, I have no knowledge of a subpoena, Mr. Rosner.
22 I have just a couple more questions for you
23 regarding the exhibits that you used. Each one of them,
24 starting with page -- or Exhibit 202 through 208, 209, at
25 the top there is a designation, black or white preference
152
1 question. That's your designation, correct, to call it a
2 black or white preference question?
3 A I'm sorry, which one were you referring to?
4 Q Well, you can take any one of these, starting with
5 Exhibit 202.
6 A Okay. Sure.
7 Q You prepared these exhibits?
8 A I prepared these exhibits, and yes, I tried to be
9 clear in my direct testimony that the label, Black or White
10 Preference Question was my label, and I defined it, I hoped,
11 to the understanding of everyone.
12 Q Okay. These aren't the newspapers that you're relying
13 on that are using this term?
14 A No, again, I wanted to emphasize that this was my
15 terminology. I hope I made that clear.
16 Q And you're responsible for the way these exhibits were
17 prepared?
18 A Yes, I'm responsible for the way -- I'm responsible
19 for the content of these exhibits. 202 through 209 were
20 prepared by me on my computer, with the exception of the
21 figure on 209, which was my handiwork with a ruler and
22 a pen.
23 Q Okay. Could you turn to Exhibit 204, please?
24 A Sure.
25 Q And I'm just going to ask a couple questions more out
153
1 of curiosity than anything else, but I'm just about done,
2 so I don't think I would be wasting much time.
3 I was just reading ing this, taking a look at
4 this question while you were testifying, and the -- as I
5 understand it, the correct answer is supposed to be D; is
6 that right?
7 A Yes, that's right.
8 Q And just to take a look at these questions, there is a
9 value for X that one would need to put in here to determine
10 what the correct answer is; correct?
11 A That's right.
12 Q Isn't the correct answer for X, correct value for
13 X the number three?
14 A Oh, you fell into the trap.
15 Q How's that?
16 A Shall I explain?
17 Q Sure.
18 A That's the way -- that's one of the traps that -- one
19 of the common traps that is built into questions. Both
20 black preference questions and white preference questions
21 have traps. The trap here is that X could be three or
22 negative three and that's why D is the correct answer.
23 Q So I got that question wrong?
24 A You're opening yourself up for a comment which I
25 won't make.
154
1 MR. KOLBO: Your Honor, I have nothing else.
2 THE COURT: Any further questions?
3 MS. MASSIE: Just a couple questions.
4 REDIRECT EXAMINATION
5 BY MS. MASSIE:
6 Q Mr. Rosner, have you in your teaching and your
7 supervision of teachers known people's scores to improve
8 by give or take seven points on the LSAT over the course
9 of a Princeton Review class?
10 A Yes, that confirms with my experience. I'm
11 particularly concerned about the impacts of white preference
12 tests and white preference questions to black students and
13 so I have paid very, very close attention to that over the
14 last several years. Seven points is a typical improvement
15 for black students, although the average improvement would
16 be maybe -- for black students maybe five, five and-a-half
17 points, something in that range, based on my anecdotal
18 observations. I haven't done a formal study on that.
19 Q When you say anecdotal observations, you have taught
20 hundreds of students and you have been attentive to the
21 degree to which their scores improve; is that correct?
22 A Yes. It's a large body of information, though
23 anecdotal.
24 Q And it confirms the more formal studies that have
25 been commissioned, maybe I shouldn't be saying this in the
155
1 plural, at least the one study that was commissioned by the
2 Princeton Review?
3 A There is a general confirmation, yes, with possibly a
4 relatively small difference, in my experience.
5 Q And in your experience, Professor Shapiro has
6 testified about the process of test equating so that a
7 score today means more or less the same as a score several
8 or even more years ago. Have you in the course of your
9 teaching noticed that there are -- that results remain
10 relatively constant?
11 A Yes, and test score gap is consistent. It's
12 consistent, and one of the reasons it is is because these
13 are white preference tests comprised of white preference
14 questions and that remains. It's clear to me that that
15 remains consistent from 1988 to today on both the SAT
16 and the LSAT.
17 Q You clarified that the four SAT's you spoke about
18 earlier in your direct were the only four SAT's that have
19 been made publicly available with percentages, answering
20 correct percentages of people answering correct by race.
21 A Yes.
22 Q There aren't any questions like that available for
23 the LSAT; right?
24 A Base on my discussions with Law Services, they tell me
25 that there are none publicly available, that none of that
156
1 data with regard to the LS -- with regard to LSAT questions
2 is publicly available there.
3 Q And we did try to get that information through legal
4 process in this litigation, didn't we?
5 A We discussed -- you and I discussed serving a subpoena
6 on Law Services, and I remember we were -- we had a
7 discussion on the question, the kinds of questions that
8 would be in that subpoena, and I was told by you that the
9 subpoena was served, although I never saw a copy of it, or
10 that's why I said it was hearsay that that kind of thing
11 happened.
12 Q And I also told you that it got stonewalled; right?
13 A Yes, you told me the response, which was no
14 information.
15 MS. MASSIE: Thanks.
16 THE COURT: You may step down. Thank you.
17 Appreciate you coming back to our nice weather.
18 THE WITNESS: Try to arrange some sunshine next
19 time. Thank you.
20 THE COURT: Because your weather sometimes isn't
21 much better than yours.
22 THE WITNESS: Sometimes.
23 THE COURT: Next witness, please.
24 MS. MASSIE: Jodi Masley will be examining our next
25 witness.
157
1 THE COURT: Before the day is out, let's kind of get
2 an idea of how many more witnesses. We can do it now or
3 later, I don't care, before you leave.
4 I'll tell you why, I have a jury that I have to pick
5 before next Thursday. I don't have to try the case, but I
6 have to pick a jury before -- I think it's next Thursday or
7 Wednesday, we will talk about that.
8 MS. MASSIE: Okay. We can talk about it either now
9 or later. Do you have a preference?
10 THE COURT: Right now, I don't care, since you're
11 standing there.
12 MS. MASSIE: We have two witnesses tomorrow. I have
13 spoken with Mr. Kolbo and Payton. We have two, Crystal
14 James and Walter Allen. Crystal James is a second year
15 student at the UCLA School of Law and Walter Allen is the
16 team leader for the team that conducted our campus climate
17 study.
18 On Thursday we have Eric Foner, Professor of History
19 from Columbia University, designated as a witness by the
20 University. We have Eugene Garcia, who is the Dean of the
21 Graduate School of Education at UC Berkley, and David White,
22 who is an expert on testing, some testing issues.
23 And on Friday, we have Rick Lempert, who you heard
24 from as a fact witness, but he is also an expert studying
25 the -- comparing the career trajectories and career
158
1 success of --
2 THE COURT: I know who he is.
3 MS. MASSIE: You know him. And Frank Woo, Faith
4 Smith, and we are also working out which -- I have discussed
5 with Counsel several students we may call in addition.
6 THE COURT: Okay. Mr. Payton, did you want to say
7 something?
8 MR. PAYTON: At some point we should talk about
9 rebuttal and the rest of it, but we don't have to do it now.
10 MS. MASSIE: Let's do that later.
11 THE COURT: But let's do it before we leave, because
12 I want to pick this jury sometime next week. I wouldn't
13 start the case until we finished with this one, but I have
14 to at least pick a jury. The farthest they are coming from
15 is Milan, so --
16 I'm sorry. Stand for one more second and I will
17 swear you in. Don't look so scared.
18 -- --- --
19 C O N C E P C I O N E S C O B A R,
20 having been called as a witness herein, and after having
21 been first duly sworn to tell the truth, the whole truth
22 and nothing but the truth was examined and testified.
23 -- --- --
24 THE COURT: You may be seated. Thank you.
25 If you could give us your full name, and starting
159
1 with the spelling.
2 THE WITNESS: Concepcion Escobar, E-s-c-o-b-a-r.
3 THE COURT: E-s-c-o --
4 THE WITNESS: E-s-c-o-b-a-r.
5 THE COURT: Thank you.
6 DIRECT EXAMINATION
7 BY MS. MASLEY:
8 Q Ms. Escobar, could you tell us your address?
9 A 551 South State Street, Ann Arbor, Michigan, 48109.
10 Q And are you a student?
11 A Yes.
12 Q Where are you a student today?
13 A I'm at the University of Michigan Law School.
14 Q I'm going to ask you a series of questions just about
15 your background to start out. Where were you born?
16 A In Chicago.
17 Q Can you tell us something about your parents?
18 A My mother is an immigrant from Mexico and my father
19 is originally from Arizona and he is an Apache or was
20 Apache. He is deceased.
21 Q Okay. Is there anything else you would -- more you
22 would like to tell us about your parents?
23 A Well, they both came to Chicago when they were
24 thirteen years old. They have less than a first grade
25 education. When they came to Chicago, they came alone.
160
1 My father was abandoned by his parents when he was
2 eight years old and pretty much grew up on the street, and,
3 you know, at thirteen years old went to Chicago and started
4 working in factories.
5 My parents met when my mother was 19 and my father
6 was 24 and they dated for six months and then married after
7 one year.
8 Q And what does your mother do?
9 A She is a factory worker.
10 Q How long has she been a factory worker?
11 A For 38 years.
12 Q What kind of factory does she work in?
13 A The name of the company is Williams Electronics. They
14 make pinball machines and video games, but the company is
15 going out of business, so she is going to be losing her job
16 I think in April.
17 Q Where did you do your undergrad work?
18 A Amherst College.
19 Q What was your cumulative GPA when you left Amherst?
20 A 3.43.
21 Q And what was your LSAT score when you applied to
22 law skull?
23 A 158.
24 Q I'm going to ask you a series of questions and your
25 testimony in this case is very important and it's going
161
1 to go to two areas, the alleged double standard that the
2 Plaintiff asserts that exists between white and minority,
3 under-represented minority applicants, and also the bias
4 that is offset by affirmative action, and your testimony
5 is going to be very important to helping the Judge
6 understand your distinct experience at Amherst.
7 First, how did you get to Amherst?
8 A I was a student at Whitney Young Magnet High School,
9 which is -- it's widely recognized as the best public
10 high school in Chicago, but it's a segregated school, it's
11 mostly black, and, you know, about maybe ten percent white
12 students, some Asians and some Latinos.
13 I was a student there and I took the PSAT test, I
14 think at the beginning of my junior year, and I did well on
15 that test, so I started receiving mailings from colleges all
16 across the country, but I -- I had a part-time job and I was
17 taking a full load, so I didn't really have time to read all
18 of that stuff. And just one day at school I overheard one
19 of my English teachers talking to another teacher and he
20 happened to mention that Amherst was a very good school, so
21 I went home and I looked for the stuff from Amherst, and,
22 you know, I filled out the postcard and sent it in to get
23 more information. And after I did that, the college was --
24 you know, they kept in touch with me, encouraging me to
25 apply.
162
1 Then at the start of my senior year of high school
2 there was a minority preview weekend that was in November.
3 I believe it was in November, October, November of my senior
4 year. And, you know, I had also been getting mailings from
5 Harvard University and there was going to be an information
6 session put on by Harvard students who went to different
7 high schools around the country to recruit. And the high
8 school that they were recruiting at is Latin High School,
9 which is also a segregated high school, but it's mostly
10 white, and it's known as the best private high school
11 in Chicago, and the richest high school in Chicago.
12 So I went that one day to the information session
13 at Latin High School, and actually, I wasn't too impressed
14 with what the students had to say about the school. It
15 didn't sound like a place that I would like. So -- but from
16 that meeting, some of the Latin High School students said
17 that they wanted to put together like a road trip for the
18 students to visit Harvard, and so I asked them if I could
19 go, but I wanted to visit Amherst for the minority preview
20 weekend. So we drove and they dropped me off and I was
21 at Amherst for, I think, three days, like Friday, Saturday,
22 Sunday.
23 And during that weekend I was hosted by two black
24 students. They were freshmen and, you know, everyone that
25 I came in -- almost everyone I came into contact with were
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1 other high school seniors thinking about applying to Amherst
2 who were all of color. Then we went to a few sessions with
3 admissions counselors, I think professors, administrators,
4 other students of color. We went to a party every night
5 at the -- it was call the Charles Drew House, which is the
6 Black Culture House. And I just felt very comfortable there
7 and it was a small school and it was beautiful, so -- and we
8 had been encouraged to apply as early decision applicants.
9 So I did apply as an early decision applicant, and I was
10 accepted.
11 Q Did you experience tracking in your high school?
12 A Yes, I did. I was tracked really from kindergarten
13 through twelve grade. When I started school my grandmother
14 used to babysit us, my mom's mom, and so she only spoke
15 Spanish and so we only spoke Spanish. My father spoke
16 English, but he just wasn't around a lot, so we spoke some
17 English, but more Spanish. So I was put into the Spanish
18 language kindergarten.
19 And so I was in Spanish language classes up to
20 second grade. And I don't know, this is just a side note,
21 but I just remember feeling desperate to learn English,
22 because I just felt like the English classes were superior
23 to ours. And in second grade, I actually was -- I have a
24 sister who is eleven months older than me, we were in the
25 same classes, and around second grade I was doing her
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1 homework and stuff, so I got transferred into a third grade
2 class that was in English.
3 And I was in some kind of gifted program where I was
4 pulled out of class for one or two periods a day and given
5 special instruction with other kids in the gifted program in
6 special things like creative writing and things like that.
7 And then in middle school, there were actually
8 honors and regular classes, so I was put in the honors class
9 for seventh and eighth grade. And for seventh and eighth
10 grade I had a teacher who came from a family of teachers and
11 one of her siblings taught at a magnet high school, and he
12 had given her applications to give to kids in my class so
13 that we could apply to magnet high schools. And so she only
14 chose four students in my whole class to give applications
15 to so they could take the entrance exams for the high
16 schools. So I was chosen and three other kids were chosen,
17 but I was the only one who got into Whitney Young.
18 Then at Whitney Young, there was also that system of
19 regulars and honors classes and based on your score on the
20 entrance exams of the high school, you were put in either
21 track, so I was put into the honors classes.
22 Q And what was the racial composition of honors classes?
23 A They were almost all white. I would say every class
24 had about 30 students. Each class had about 20 white
25 students, five white students -- I mean five Asian students,
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1 and, you know, the rest Latino and black.
2 Q Apart from hearing, overhearing a conversation with
3 your teachers, did you have any other notion of Amherst
4 College?
5 A No.
6 Q And did you ever get any help from a counselor?
7 A Well, I went for help to a counselor. My high school
8 had four counselors and 2,000 students, so each counselor
9 was responsible for 500 students, and their job was, you
10 know, to help people with emotional problems, to help them
11 pick classes, to help them choose colleges, and when I had
12 already made the decision to apply to Amherst, I went to
13 the college counselor to ask her how I could request a
14 transcript and to ask for financial aid information about --
15 to see if she knew about any scholarships or anything. And
16 she just directed me to a file cabinet outside her office.
17 And that was very different treatment from the treatment
18 that, you know, my white classmates, Asian classmates got.
19 Well, when she -- she said, oh, you know, you're
20 thinking about college? That's very good. What schools are
21 you thinking of? And so I told her Amherst College, and
22 she thought I said Elmhurst College, which was a college in
23 Illinois that's not very selective, and she said, oh, that's
24 great. And I said, no, Amherst College. And she said, oh.
25 Oh, yeah, I went to, you know, a function there once, and,
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1 you know, all I remember are pearls and white gloves.
2 You'll never fit in.
3 And that was her advice to me. So she didn't tell
4 me about any scholarships or give me any useful information.
5 I had to find out all this stuff on my own. And I found out
6 later on like at graduation where they were giving out all
7 these scholarships and awards and things, I found out that
8 there were scholarships available from my high school that
9 she just didn't tell me about. And I think that the reason
10 she didn't tell me was because of my race, that -- I mean,
11 and it just didn't happen with her, it happened every time
12 somebody was tapped, you know, to compete in something or,
13 you know, to represent the school somewhere, it was just
14 assumed that the only kids who were in the top ten, ranked
15 in the top ten, which I was, were white, and in fact, they
16 were all white except for me. So that was my experience
17 with college counseling.
18 Q And before getting to Amherst, had you ever seen
19 another college?
20 A Yes. When I was a senior in high school, I don't
21 remember how, but I qualified for -- oh, I had been a
22 volunteer at the Field Museum of Natural History in Chicago
23 and I had worked with a chemist who was a professor at the
24 University of Chicago, and so through my work there he
25 recommended me for a program where high school students
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1 could take college level courses at the University of
2 Illinois at Chicago, which is a university that was right
3 next to my high school, and it was created for community
4 college students in Chicago so that they could have a
5 four-year university to transfer to that was right in
6 the city that wasn't, you know, as selective as a school
7 like the University of Chicago. So, you know, I took a few
8 classes there so that I could transfer those for college
9 credit.
10 Q Did you make a comparison when you arrived at Amherst
11 between Amherst and that college?
12 A Definitely. The differences were really stark.
13 First, the UIC, the campus was an urban campus, so it was
14 just -- it was about ten buildings and, you know, there was
15 like a stadium, like a concert hall, but at -- I didn't
16 even know it belonged to the school, because it was used
17 for public concerts, but it was just, you know, the ten
18 buildings, and everybody commuted. It didn't have dorms.
19 And the people who went there were mostly from community
20 colleges or they were from, you know, poor high schools
21 or -- it was still mostly white, but, you know, the white
22 students there just to me didn't seem serious about college,
23 didn't seem serious about studying, so I just thought I
24 was at a really bad college, because I felt like I was the
25 smartest person in my classes and I was a high school
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1 student.
2 Then, I mean, compared to Amherst, just physically,
3 you know, Amherst is a really -- it looks a stereotype of
4 an east coast school, you know, it has a lot of 19th century
5 buildings, a huge gym, this big hill that people use for,
6 you know, soccer and stuff. It has the most tennis courts
7 per capita of any school in the country, things like that.
8 So physically, it was very different. It was a lot smaller.
9 I don't know how many thousands of students UIC had, but I
10 know they had -- it was in the thousands. Amherst had only
11 1,600 students, and the average class size was thirteen.
12 Q Had you had experiences with being in a minority
13 before getting to Amherst?
14 A I had -- well, up to eighth grade I had gone to
15 my neighborhood school, and I had no notion of being a
16 so-called minority. I had never even heard that term.
17 When I went to high school, the high school was
18 mostly black, but I was in mostly all white classes, but I
19 didn't feel like a minority, because the school was all
20 black. Like, it was cool to be black, and there were all
21 kinds of black people. It wasn't -- you know, the high
22 school itself was right next to a ghetto, but the students
23 didn't come exclusively from that area, the students came
24 from all over the city, from all levels of socioeconomic
25 background, so there was a lot of diversity there among the
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1 black students.
2 And then I had worked as a lifeguard at a beach in
3 Chicago. It was -- it's known as like the showcase beach in
4 Chicago. It's the largest. It stretches a mile, and it's
5 the beach that everybody wants to work at, because it's, you
6 know, it's so nice. Everybody else gets stuck at pools for
7 the whole summer, so everybody wants to work at the beach.
8 And, you know, they say that people with the best
9 scores on their lifeguard tests get sent there, but in fact,
10 the supervisors who work at this beach chose kids, you know,
11 who were on their swim teams during the year. Whether they
12 had the best scores or not, these kids tend to go there.
13 So the first year that I worked there, there were
14 50 white lifeguards and me, and that was my first experience
15 of being, you know, a minority with the majority population,
16 and it was a really, really bad experience.
17 Q Can you say why?
18 A It was the first time that I felt representative of
19 my race, yet I wasn't on an equal playing with, you know,
20 the people who would, you know, say things to me, which were
21 the supervisors, and they would say things like, oh, you're
22 my little Mexican senorita, and, you know, if I said
23 something back, they would say, oh, hot salsa, you know.
24 If any Latinos came to the beach it was a -- mostly
25 the patrons at the beach were mostly white, because it's
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1 right in an area called the Gold Coast where rich people
2 live, and these rich people were mostly all white, so it's
3 kind of their beach, and when Latinos would come to the
4 beach the supervisors would call them the Spanish Armada.
5 So it was that kind of thing that would just make
6 me really angry, and when I would say something back to them
7 about, you know, calling me a senorita or trying to speak to
8 me in Spanish, I would get punished. And the punishment was
9 sitting for four hours in a boat without a break, getting a
10 half-hour lunch, and then sitting for another four hours in
11 the boat without a break, and then you had to help carry
12 the boats into the boat house.
13 And this was a standard punishment. I wasn't the
14 only one punished like that. I mean, people were punished
15 for things like if you didn't go to a party at night. They
16 would assign you to go to the party, if you didn't go, the
17 next day you were punished that way. But I got punished
18 more often, because I would say things to them when they
19 would, you know, use these slurs.
20 But when I was thinking about going to Amherst, I
21 didn't realize that it was a -- well, such a white school,
22 and when I did realize that it was such a white school, I
23 didn't think that it was going to be as bad as my experience
24 at the beach, because I just couldn't -- I mean, I thought
25 that these people at the beach that, you know, they weren't
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1 people who did well in school, that they were just a bunch
2 of jocks, that, you know, that these weren't the kind of
3 people that I was going to meet at a place like Amherst
4 College.
5 Q And did you end up finding that that was true?
6 A No. Well, I think that people's -- well, most of the
7 students had come from homogeneous backgrounds. Most of the
8 students of color had come from segregated schools and most
9 of the white students had come from all white schools. So
10 no one had much experience with anybody that was really
11 outside of their race or -- you know, minorities went to
12 minority schools, not necessarily of their race, but no
13 one had a lot of experience with each other.
14 And, I mean, my social group became the women who
15 lived on my floor in my dorm, and I think there were about
16 30 women on the floor. Three were Asian, two were black,
17 there was me, and the rest were white on my floor.
18 And, you know, I mean, I thought initially that
19 everybody was very polite, but, you know, later on we had
20 conflicts where I just felt very uncomfortable.
21 Q What kind of conflicts did you have?
22 A Well, first there was -- it was the socioeconomic
23 difference. Like, I found out that I was the only person
24 on my whole floor who was getting any kind of financial aid.
25 The tuition at the school was $23,000 a year at the time,
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1 and they were paying it in full and that was a total shock
2 to me. I just couldn't believe that there were people, you
3 know, in this country who could afford to pay that much
4 money in one year, you know, for four years for school.
5 Another conflict was that the college had a minority
6 preorientation program. I think it was two or three days.
7 And basically, they sent letters to every student that had
8 identified as a minority student, inviting them to come to
9 the school two or three days before, you know, the -- well,
10 before the white students came to campus.
11 And they had started this program because -- well,
12 really as a result of complaints and demonstrations by
13 previous students of color who felt like they had no support
14 at the college for dealing with an environment that was
15 suddenly nearly all white.
16 So I went to this preorientation weekend and we were
17 encouraged by the different facilitators of the different
18 sessions that they had to sign up for groups like the Black
19 Students Union and Asian American Students Association and
20 Latino Student Group and groups like that. You know, so we
21 all signed up.
22 And, you know, so at the time I was the only person
23 on my whole floor who had gone to that program, so like when
24 I moved in, I was -- I was the only one on my whole floor,
25 plus the resident counselor who was on my floor. And when
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1 everybody else moved in, and, you know, they found out
2 that -- they didn't know before they came that there had
3 been this preorientation weekend, so when they showed up and
4 they found out that the school had had this for us, that
5 they had spent money on this program and that they hadn't
6 invited the white students, you know, the white students
7 expressed anger at that.
8 Q And what did you think of that?
9 A Well, intuitively I thought that there was something
10 wrong with their reaction, and that they didn't see anything
11 wrong with their reaction, because they were complaining
12 to me, and, you know, I tried to say that, you know, maybe
13 people in the past had been victims of racism on the part
14 of other students and that the school was, you know, just
15 trying to help us cope before anything happened and just
16 trying to express support, you know, trying to say that if
17 something like this did happen to anybody, that, you know,
18 they had people in the administration to go to that would
19 be sympathetic.
20 But my white friends didn't accept that explanation.
21 They just said that this was wrong and that even having
22 these groups, these cultural groups was wrong, because, you
23 know, it encouraged us to separate ourselves, that it gave
24 us an advantage. They claimed that these groups made it
25 easier for us socially because we had an instant group of
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1 friends, that's how they put it, an instant group of friends
2 that they didn't have, that they had to try harder to make
3 friends.
4 Q Had you experienced racism in your education before
5 getting to Amherst?
6 A I had -- I mean, one thing that I can remember very
7 clearly was when I was in high school and I was taking a
8 psychology class and it was with this teacher who never
9 had us do much work, his cubicle was right outside of our
10 classroom, so usually he would stand outside and talk to
11 people for fifteen minutes while we just sat there and did
12 nothing, and then, you know, he would walk in and just, you
13 know, just talk to us about current events or whatever was
14 going on.
15 Every once in a while we had a real class, but one
16 day, you know, he walked in fifteen minutes late, it was a
17 40-minute class, and he said, today we're going to talk
18 about stereotypes. You know, don't you guys notice that
19 here in school that, you know, people think things about
20 other people based on their race, but, you know, they never
21 say it, but you know you think it.
22 And, you know, you know that there is not, you know,
23 one Thanksgiving that goes by that your families don't say
24 things about other races, and I mean, what do you guys think
25 about that, and what do you guys think of the fact that, you
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1 know, this class is nearly all white, and it's an honors
2 class, and, you know, 90 percent of the students in this
3 school are black. Why do you think that is?
4 And that was the first time ever in my life that
5 this topic had been introduced in a class at all, really,
6 in a group of, you know, mixed race people. So people
7 initially were reluctant to participate, so he wrote on the
8 board, white, Hispanic, black, Asian, and Jews, and then he
9 just, you know, went to each group and had people throw out,
10 you know, stereotypes that they thought, you know, were
11 common about these groups.
12 And I wasn't participating at all. I felt very
13 uncomfortable with that discussion, especially because it
14 was a class where, you know, fifteen students were white,
15 three were Asian, I don't think there were any blacks in
16 that class, and I was the one Latino.
17 So the stereotypes about white people and about
18 Asians were all positive, and about Jews they -- nobody
19 wanted to say anything about Jews. There was at least one
20 Jewish kid in the class, and, you know, so the teacher asked
21 him straight out, you're Jewish, aren't you? You had a Bar
22 Mitzvah, didn't you? And he said, yeah. And he said, well,
23 what should we put for Jews? And the kid said, well, we eat
24 matzoh balls, and that was all that they could come up with
25 for Jews.
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1 But then when they got to blacks, it was -- the list
2 was really derogatory and after every item, everybody was
3 just totally laughing and they said things about blacks
4 like, they like watermelon. They like fried chicken. They
5 like fruit flavored soda. They cheat the welfare system.
6 There was like about a five-minute discussion about the
7 proper way to -- what to write on the board to say that
8 black men had big penises, and then the teacher said, well,
9 let's just say well endowed, you know. And also that they
10 cheat the welfare system and that they use drugs. So it
11 was a big long list compared to all the other groups.
12 And then for the Latinos, it was a similar set of
13 negative characteristics, like they are illegal. They don't
14 speak English. They are lazy. They become maids. And I
15 don't remember what the other stuff was, but --
16 Q How many years ago was that?
17 A It was in 1989.
18 Q How vividly do you remember that discussion?
19 A Like it was yesterday.
20 Well, the thing about that discussion was, it was
21 the first time in school that I had got really, really
22 angry. I had never been so mad, so angry that I couldn't
23 speak. And, I mean, I think he meant to go on, the teacher
24 meant to go on and discuss these, you know, but we only got
25 as far as making the lists and everybody laughing about the
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1 lists and then the class was over.
2 And when the class was over, a student sitting next
3 to me said, your nose is bleeding. And I hadn't realized
4 that I had gotten a nose bleed, and it was from being so
5 angry. So, you know, I just pinched my nose and left the
6 class and my teacher saw that. And I just said, you know,
7 I have to go to the bathroom. He said, okay. And then the
8 next day, there was no -- we didn't finish the discussion.
9 That was the end of it. It was just this list of
10 stereotypes, everybody laughing, and nothing more.
11 Q Did you go to Amherst believing you would have any
12 difficulties because of your race?
13 A No. When I had gone for that preview weekend, I
14 think because I was hosted by black students and because,
15 you know, we went to parties at the Black Culture House and
16 because the group that I was socializing with were other
17 minority high school students, I saw the white students
18 around, but I didn't get the sense that it was, you know,
19 such a white school, such a majority white school.
20 And I thought that because, you know, these people
21 were educated, Amherst is ranked the number one small
22 college in the country, I thought that because these people
23 were educated that, you know, that they would be open
24 minded, that I wouldn't face any kind of discrimination,
25 that I wouldn't feel uncomfortable, that, you know, my
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1 stereotype of college in general, the idea that I had, you
2 know, and been inspired by my whole life before actually
3 going to college was that it was an environment of
4 transcendentalists, basically, of Renaissance people,
5 people who wanted to learn about everything, people who
6 were interested in learning.
7 You know, one of the things I had said on the
8 application for Amherst was that they look at the whole
9 person and that they encourage the students to interact
10 with each other, because you have to remember that they
11 looked at the whole person and so that there was something
12 to -- you know, that everyone could contribute, and they
13 encouraged people to look for that in their classmates.
14 So I really expected that, I took that literally,
15 and I really didn't expect to have any problem at all.
16 Q Were you valued as a whole person?
17 A Not at all. I mean, one of my first experiences at
18 Amherst was, I think we had like the two or three days of
19 the minority orientation and then we had about four days,
20 you know, with the rest of the students of orientation, so
21 it was about a week all together. I think like on the very
22 first night that the white students came, there was like a
23 welcome, welcoming reception at the President's house and I
24 went to that, you know, with other people on my floor.
25 And we got there when there weren't many people
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1 there, so we got to meet him and talk to him, and, you know,
2 his comments to everybody were like, you know, where are you
3 from, and, you know, oh, had you wanted to come to Amherst
4 for a long time. And all of my friends had some kind of
5 connection to Amherst, like a relative had gone there or a
6 teacher had gone there or, you know, they had met him when
7 they visited, things like that, he knew their parents.
8 Except when he got to me, and he said, where are
9 you from, and I said Chicago, he said, you know, you're very
10 lucky to be here. And he knew absolutely nothing about me,
11 except that I was from Chicago, and he said, you're very
12 lucky to be here.
13 And, you know, then he asked me more about, you
14 know, what do your parents do, and I said my mom is a
15 factory worker. And, you know, where did you go to high
16 school, and I said Whitney Young. And he said, I don't
17 think we ever had anybody come here from there. You know,
18 finally, he said, you have a lot to teach people here.
19 So, I mean, that kind of set the tone for my whole
20 experience at the school, you know, if the President of the
21 college could, you know, make all of these judgments about
22 me in the first five minutes that I met him.
23 Q Was that the same treatment that white students
24 received?
25 A No. I mean, there was -- the way that he talked to,
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1 you know, the girls that I went with, who happened to be
2 white, and he didn't say anything like that to them. And,
3 you know, there was also this white student, his name was
4 Rich Lawson, and he was also poor, he wasn't as poor as I
5 was, but his parents were divorced and he lived with his
6 father and he just told everybody, you know, like that when
7 he was little he lived in a trailer park, and, you know,
8 that his father worked so hard, but that he really couldn't
9 afford to go to Amherst, but, you know, that here he was,
10 because he had worked so hard.
11 And everybody, you know, treated him like he was
12 some kind of hero, you know, like he had overcome so much
13 and that he was so extraordinary. And, you know, he was
14 always chosen to represent the school at functions where
15 they asked alumni to donate money for financial aid and
16 he would stand up there and tell this story that became a
17 canned story, you know. I could mouth the words that he
18 was going to say when he told the story, you know. And he
19 was received very positively. He wasn't given the message,
20 you're very lucky to be here, you have a lot to teach.
21 And, you know, at the end of our four years, at
22 graduation, he got this award that the school gives
23 basically to a poor student to help them make the transition
24 from college to working or whatever they are going to do
25 after college. It was a $5,000 award. And, you know, when
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1 the President was introducing him, he told the story that
2 this kid had always told.
3 So I just really saw a contrast that way, that, I
4 mean, I had suspected sometimes, maybe I'm getting treated
5 this way because I'm poor, you know, maybe it's not because
6 I'm not white, but when I saw how this kid was treated, it
7 made me think that it was because of race.
8 Q Did you have a roommate there your first year?
9 A Yes.
10 Q And did you ever have any conflicts with her?
11 A Yes, I had constant conflicts with her. She was very
12 wealthy. Her father was a lawyer and her mom was a doctor
13 and they each owned several businesses. And, you know, she
14 hadn't needed financial aid, of course. And, you know, we
15 tried to get along in the beginning, but she was just so
16 wealthy, I just -- I just couldn't believe it.
17 She didn't even know how to do laundry, you know.
18 In the first few days when I was going to do laundry, she
19 said, can you show me how to do laundry? And I said no,
20 figure it out, right? And then she had gone down and tried
21 to figure it out and she had put her clothes in a dryer and
22 put detergent in there and hadn't realized that it was a
23 dryer, you know, so then we went down and she learned how
24 to do laundry.
25 And, you know, I told my friends this story, like,
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1 can you believe that, you know, she didn't know what a
2 washing machine was, and they would say, no, I have known
3 people who didn't know what a washing machine was. And
4 I don't know, I just thought that was really weird.
5 But one day early in the year, like two or three
6 weeks after school started, I had gone down to do my
7 laundry, and, you know, she was in the room, and so I went
8 down, put my clothes, you know, in the machine, and I came
9 up with my empty laundry basket and when I open the door to
10 our room, the light was off, and it was nighttime, so it
11 was dark outside, so the whole room was totally dark, so I
12 opened the door, and then she jumped out at me and said boo.
13 So I just reacted and I punch her in the nose. And,
14 you know, she just grabbed her nose and, you know, ran past
15 me out the door and started knocking on people's doors to
16 say that I had punched her in the nose and that I was a
17 violent person. And then, you know, our neighbors came
18 out, you know, to hear what had happened, and, you know,
19 their reaction was that I was a violent person, and that
20 that's why I had punched her in the nose.
21 And I said, no, I'm not a violent person, you know,
22 it's just she scared me and I reacted, and I apologized,
23 and, you know, but she --
24 Q Was it different for you -- what was different about
25 that experience for you that she didn't understand?
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1 A I think -- well, that was my first time being in a
2 safe environment, you know, where I just didn't have to
3 worry about my safety, and I think that was part of my
4 instincts to react by punching. If somebody jumped out at
5 me, it was because that's how I would have reacted, you
6 know, in my other world, and, I mean, but I just explained
7 to her that it was involuntary, that I was just surprised,
8 that I was scared, and that's why punched her.
9 But she wasn't satisfied. And so she called the
10 Dean of Students to complain about me. She wanted -- she
11 wanted some kind of action taken against me for assault,
12 basically. And then he called me into his office, and, you
13 know, he asked me what happened, and I told him. And he
14 just laughed about it, but, you know, and he said, well, you
15 know, just -- you know, just try not to let it happen again,
16 because people here have never been around violence before.
17 And, you know, for that whole year after that
18 happened I was just known as the violent student, and, you
19 know, my friends would joke about it, like, you know, when
20 they would say something and we would start to argue, you
21 know, just a regular argument about anything, they would
22 say, oh, you know, you're not going to punch me in the nose,
23 are you? Or if we got into a real argument where I was
24 angry, you know, they would not want to finish the argument,
25 and, you know, and then they would just say, you know, no,
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1 I just feel afraid of you. And I would say, why, you know,
2 like, what is so different about the way, you know, I'm
3 acting that makes you afraid. And they would say, I don't
4 know, you know, you just seem violent.
5 Q And were they talking about you as an individual?
6 A No. I feel like they were talking about me as a brown
7 person, especially because it happened so early in the year.
8 There was nothing else there that would justify anybody
9 calling or, you know, making such a quick judgment to say
10 that I was a violent person.
11 Q And this followed you for the whole year?
12 A Yes.
13 Q What was it -- what was the racial composition of your
14 classes?
15 A Well, they were almost all white. Even though most
16 classes were small, the classes that I took, because they
17 were freshman classes, three of them had over 100 people in
18 them -- no, maybe about 100 people in them, and one of them
19 had about 35 students in them, but each of those classes was
20 overwhelmingly white.
21 Q Were you forthcoming with speaking in those classes?
22 A No. I mean, my very first day of class was in one of
23 those big classes and I thought of myself as well prepared.
24 I hadn't realized by the first day of class that I wasn't as
25 well prepared as the other students in my freshman class. I
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1 thought, you know, that I was intelligent, that I had taken
2 the most challenging classes in my high school, that I had
3 done very well.
4 You know, the administrators at my high school were
5 always reminding us that we were the best high school in the
6 city, so I felt very competent, but that first day, just in
7 reaction to the number of white students that I saw in that
8 classroom, that lecture hall, it just made me feel less
9 confident and like I didn't want to be noticed, because I
10 just felt like that to them I was going to be representative
11 of brown people, because there were, in my entire freshman
12 class, there was only one other Latino student, no Native
13 American students, a number of Asians, maybe fifteen Asians.
14 Q Out of how many?
15 A Out of 416 students.
16 So that very first day, I just felt like that these
17 students were going to look to me as a representative of the
18 brown race, because I was aware by then that almost everyone
19 had come from homogeneous backgrounds, and I was just
20 convinced that that's what it was going to be.
21 Q What did you enter Amherst wanting to focus on?
22 A I wanted to be pre-med.
23 Q And was there anything that dissuaded you from
24 pursuing that?
25 A Well, when I started there was a -- well, there was
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1 a session that we went to before classes began for students
2 interested in the pre-med program. It's not a major,
3 per se, but it's a set of classes that you should take in
4 order to be able to take the, you know, the MCAT, which is
5 the entrance examine for medical school, and we had been
6 given this list.
7 And so I was taking a calculus class and a chemistry
8 class and English and one other course called Introduction
9 to Liberal Studies, that was a class, basically a statistics
10 class, and right away, like in the first couple of weeks,
11 I started doing very badly in the three math and science
12 classes and pretty well in my English class. But where
13 the math and science classes started, they started from a
14 foundation that I didn't even have, but that I think every
15 other student in the class had.
16 Like the professors assumed that students had had
17 calculus already and I hadn't. I had only had pre-calculus.
18 Calculus was offered at my high school, but it was only
19 offered for the students who had started in the seventh
20 grade program at my high school, so there was no way that I
21 could have taken it, unless I had known that that's where
22 they were going to start, and if I had done, you know,
23 extra like in summer school or something.
24 I started doing very badly, and, you know, I told my
25 advisor, like before the middle of the semester, and, you
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1 know, most of my neighbors on my floor who were my friends,
2 about half of them were also doing the pre-medical program
3 and we had weekly quizzes and homework and stuff and they
4 were all doing very well, so I didn't want to tell them
5 because of feeling, you know, like I was the representative
6 of, you know, Latino USA. I didn't want to tell them that I
7 wasn't doing well in these classes, because I felt like they
8 already had, you know, negative stereotypes in their minds
9 about Latinos, I didn't want to confirm them.
10 So I went to my advisor and I asked for a tutor and
11 he gave me one, but it was just impossible for me to catch
12 up, because the starting point of all of the classes, you
13 know, was something that I hadn't had yet. So I gave up
14 on the tutors and I pretty much went into the final exams
15 expecting to fail, but I didn't fail, I just did poorly.
16 And, you know, when I did so poorly, I considered,
17 you know, since I had passed, I considered taking like the
18 next set of classes still in the pre-med program, but during
19 that first semester there had been a lot of discussions
20 where a lot of female and minority students had complaints
21 about a number of professors in the biology and chemistry
22 departments, you know, and a lot of our classes are in those
23 departments. Some of them were for sexual harassment, some
24 of them were for racial harassment, and the majority of
25 complaints were from students who either had already
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1 graduated or were about to graduate who had gotten bad
2 recommendations from a committee chaired by a biology
3 professor, one of the ones accused of racial harassment,
4 where he gave bad recommendations to these students, and
5 all of the students were either female or of color.
6 And so it was a pattern at Amherst that most female
7 and students of color didn't go to Ivy League medical
8 schools, only white males went to Ivy League medical
9 schools, and they tied this directly to this recommendation
10 that they had gotten from this committee chaired by this
11 professor.
12 So, you know, when I heard all of these discussions
13 going on, coupled with my doing badly anyway, you know, a
14 suggestion that a black student had given me was that I
15 shouldn't do the program at Amherst, specifically because
16 she said, you know, if you're not doing that well anyway,
17 and then you get to this committee your senior year, you're
18 not going to get a good recommendation even if you're doing
19 well, you know, so why waste your time, why sabotage your
20 chances, you should just do a post-baccalaureate, you know,
21 pre-medical program, where you do it all in one year. And
22 then, you know, I thought that that's just what I would
23 just do.
24 Q You said something a few minutes ago about your other
25 world. Did you have to make any decisions at Amherst about
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1 how you were going to sustain yourself at the school given
2 the atmosphere there?
3 A Yeah, I mean, I felt like that I couldn't talk
4 about -- well, about where I came from to my class, in my
5 classes or to my friends, you know, who were all rich.
6 And, you know, my close group of friends were, you
7 know, two white women and three Asian women and they were
8 all rich, and they just had no idea about the kind of
9 community that I had grown up in, the kind of school that I
10 had gone to.
11 I could see then, you know, after a few weeks at
12 college how bad my high school had been, that there were
13 just so many things that we didn't have that all of my
14 classmates had had as high school students, you know, that
15 really made me feel like administrators at my high school
16 were stupid, because, you know, here they thought that they
17 had the best high school in the city, that they were really
18 doing something right, they were doing something good for
19 minority students in Chicago, you know, but that really we
20 had a crappy school.
21 Like, I didn't want to -- I didn't want to fit the
22 stereotype for my friends, you know, which I felt like I
23 did, or like my family did. So like, you know, early on in
24 the year we had had discussions like with the girls on my
25 floor, you know, where everybody talked about where they
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1 came from, what their school was like, what their parents
2 did, things like that, and so I just didn't feel comfortable
3 sharing about, you know, the truth about my background, so
4 I lied and I said that my mother was a teacher, and that's
5 about it. I mean, I just said I was from Chicago. I didn't
6 say where in Chicago. You know, I just didn't talk much
7 about who I was.
8 And I mean, my family really had, like, very little
9 idea about what I was doing, where I was going to school,
10 what my classmates were like. They just had no clue.
11 Q Did you talk to your mother at some point about how
12 you were doing?
13 A Yeah, I mean, I was 17 years old then, you know, and
14 very idealistic, you know. I thought things like that, it
15 didn't matter if you were poor, that we all had the same
16 opportunities, you know, this was America, we're all equal,
17 and one of the things, too, was that your parents should
18 be there for you, that you could tell your parents anything,
19 right?
20 But I felt bad telling my mom, you know, that I
21 wasn't having such a good time at school, the thing about
22 me punching my roommate in the nose and the repercussions of
23 that, because I just felt like she would be so disappointed.
24 You know, for me to have gone to college was such a big
25 deal, you know, I was the first in my family to do that and
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1 I got into, you know, one of the very best schools and, you
2 know, to my mom, that just -- she just thought that that was
3 totally wonderful.
4 So I didn't really want to tell her, but then I got
5 to a point where I felt like I had to tell somebody, so, you
6 know, so thinking, well, you can tell your parents anything,
7 right? I told her one day that I was -- that I wasn't
8 really happy at school, you know, that like some of the
9 things that my friends had said, just about minorities in
10 general, you know, how they resented like having anything
11 that, you know, like was in support of minority studies,
12 just describing racism in general to my mom.
13 And she -- it made her really sad, and I felt really
14 bad about it, but I felt like, well, you know, my mom will
15 help me, but it turned out then that, you know, she worried
16 and that night couldn't sleep. And like, the next day she
17 went to work and her job at the -- I mean, I have never seen
18 what it is exactly her job is, but I know she has to push
19 like metal sheets through this machine where there are just
20 a bunch of blades cutting the metal, and the next day that I
21 had told her that, she was pushing the metal sheet in and
22 cut one of her fingers, and it sliced like half of it off.
23 And I felt like it was my fault, you know, for having
24 distressed her that way.
25 I mean, so that was pretty much the end of me, you
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1 know, sharing any of this with my mom. I just acted like,
2 you know, like I was in school and like, oh, I was learning
3 so much, and, you know, that I was going to have better
4 opportunities later on. I mean, basically, confirming the
5 ideas that she had, you know, about what my life was like.
6 I just went along with it.
7 Q And did the Amherst world ever meet your Chicago
8 world?
9 A Yeah. Well, at Thanksgiving, before Thanksgiving
10 break, my brother, I have an older brother, he was 21 at the
11 time, he was going to come to the college to drive me home
12 for the break, and I had a neighbor who was from a suburb of
13 Chicago and she was going to drive with us, and, you know,
14 so my brother had told me he was coming, and, you know, he
15 said he could be there around 10:00 in the morning.
16 And so, you know, I had told him to just, like, go
17 to this parking lot and that I would meet him there, because
18 I didn't want my friends to meet him. I was embarrassed.
19 You know, he had graduated from college, but, you know,
20 he -- not from college, sorry, from high school, but he,
21 you know -- well, he went to a semester of college, but he
22 dropped out, and, you know, he smoked marijuana, he had a
23 factory job, things like that, like, that if my friends
24 met him, they would feel scared. And you know, instead of
25 feeling angry about that, I felt embarrassed and ashamed,
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1 so I didn't want them to meet him.
2 But it turned out, you know, he drove with these two
3 guys, two friends of his, and he got there early, at 6:00 in
4 the morning, and he found my dorm and the three of them just
5 busted into my room at 6:00 in the morning.
6 And, you know, my roommate and I shared just a
7 single, just one room, so, you know, they came in, and it's,
8 you know, these three guys, and like they all had beards,
9 they all had tatoos, they were high, and, you know, they
10 just came in and woke us up.
11 And, you know, my brother was like, hey, we have
12 munchies, what food do you have. And I didn't have any
13 food, but my roommate had a little refrigerator, and so they
14 ate her food. And, you know, she got really mad at that.
15 But they were in and out within like half an hour.
16 And when they were carrying my stuff down, you know,
17 and I was just like putting stuff away, my roommate, you
18 know, came in, you know, sat on my bed and she was like,
19 your mom is not a teacher, is she? And I said no. And,
20 you know, that was the end of that episode.
21 And then, you know, we drove home with my neighbor,
22 and then she and I drove back. I drove my brother's car
23 back with my neighbor. And my neighbor and I were going
24 to drive back to Chicago for spring -- I mean for Christmas
25 break. And so we were driving and on the way back for
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1 Christmas break there was a storm and the car kept falling
2 into ditches, so finally, you know, like the third time it
3 fell into a ditch, they couldn't pull it out, so I tried
4 calling my brother, you know, because it was in Indiana,
5 which was about maybe five hours away from home. So I
6 called my brother collect to ask him to come, and he
7 answered the phone, but he didn't accept the call.
8 So then my friend, you know, whose father was a
9 neurologist and very busy, she called him, and, you know,
10 his response was, well, just get to a hotel, you know, get
11 some sleep, and I'll be there as soon as I can. And so then
12 he drove out, you know, in the storm to pick us up, and, you
13 know, we just left the car in the ditch.
14 And, you know, he said, well, you know, we will
15 drive you home. And, you know, we were on the expressway,
16 and he was asking me the directions to my house. They lived
17 in a suburb of Chicago that was south of Chicago, so we had
18 to go past their suburb into the city, and we were mostly on
19 the expressway, but when we got to where my house was, you
20 know, we got off the expressway, and we, you know, had to
21 pass like the railroad tracks and then the neighborhood got
22 really bad and they just got really tense.
23 And, you know, my friend's dad had been really
24 affable, really talkative the whole way until we got off
25 of the expressway, and then, you know, my friend was just
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1 saying like, oh, my God, you know, and I was just so
2 embarrassed. They had never been to a neighborhood like
3 that, and it was like 10:00 at night.
4 And, you know, every corner that we passed there
5 were men drinking, or, you know, teenage gang bangers
6 standing on the corner, and, you know, when we finally got
7 to my house it was 10:00, and, you know, even around my
8 house there were gang bangers hanging out, and there was
9 nobody home, but my friend's dad just dropped me off and
10 took off, you know, without -- without waiting to see if
11 I got into the house okay.
12 And I, you know, I ended up just waiting at the
13 neighbor's house, but, you know, when we got back to school
14 after that, you know, this friend, this friend who had been,
15 I don't know, closer to me than the other friends, like went
16 around telling everybody that she just couldn't believe
17 where I lived, she just couldn't believe.
18 THE COURT: Is this a good time to break? Let's
19 break until tomorrow.
20 MS. MASLEY: I think we're just about done.
21 THE COURT: Oh, okay. Go on.
22 BY MS. MASLEY:
23 Q So you made it through Amherst and you did well; is
24 that right?
25 A Yes.
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1 Q Did your GPA -- was it able to express this?
2 A After my first semester, I did well. I started with
3 a C plus average my first semester, and I ended with an
4 A minus average.
5 Q What does your GPA represent?
6 A I think what I thought was that my Amherst world, that
7 that was my future, that wherever I worked, wherever I went
8 to school, wherever I was going to function after college
9 was going to be that kind of environment, so that I should
10 get used to it, that I should just learn to cope, learn to
11 function. And I feel like that's what I did. I just turned
12 off to my world at home when I was at school.
13 I mean, after, after the first year, it was less
14 so that way, because there were more Latino students that I
15 could relate to, that had a lot of the same issues. Things
16 that I would have been ashamed to tell, you know, to share
17 with any student who wasn't Latino or black, I would laugh
18 about with other Latino students. So it got better that
19 way. And my professors were always encouraging, you know.
20 I got the sense that they wanted me to do well. But, I
21 mean, as far as the GPA, it represents progress to me,
22 and, well, hard work.
23 Q Is there a white student any more qualified to attend
24 the U of M Law School than you are?
25 A I don't think so.
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1 MS. MASLEY: I have no more questions.
2 THE COURT: Mr. Payton?
3 MR. PAYTON: Your Honor and Ms. Escobar, if you
4 can indulge me for thirty seconds.
5 THE COURT: For no other reason than that?
6 MR. PAYTON: It's my indulgence, but I want to say
7 that Dean Lehman who was here this morning and who had very
8 much wanted to hear your testimony has class this afternoon
9 and we tried to rearrange your testimony this afternoon so
10 that it could take place tomorrow so he could hear it, but
11 that wasn't possible, and so my indulgence is, he apologizes
12 for not being able to hear your testimony. He very much
13 wanted to hear it.
14 I don't have any questions.
15 THE COURT: That's fine. And he has been here every
16 single time, so it's a shame that he wasn't here.
17 Plaintiff?
18 MR. RICHTER: We don't have any questions, Your
19 Honor.
20 THE COURT: Thank you very much for sharing with us.
21 Appreciate it.
22 Court will be recessed until tomorrow morning, 9:00.
23 Thank you.
24 (Proceedings adjourned at 4:54 p.m.)
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1 CERTIFICATE
2 I, JOAN L. MORGAN, Official Court Reporter
3 for the United States District Court for the Eastern
4 District of Michigan, appointed pursuant to the provisions
5 of Title 28, United States Code, Section 753, do hereby
6 certify that the foregoing proceedings were had in the
7 within entitled and number cause of the date hereinbefore
8 set forth; and I do further certify that the foregoing
9 transcript has been prepared by me or under my direction.
10
11
12
13 ____________________________
14 JOAN L. MORGAN, CSR
15 Official Court Reporter
16 Detroit, Michigan 48226
17
18 Date: _______________________
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