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.




                                                                           1

                1                     UNITED STATES DISTRICT COURT

                2                FOR THE EASTERN DISTRICT OF MICHIGAN 

                3                          SOUTHERN DIVISION

                4    

                5    BARBARA GRUTTER,

                6    For herself and all others 

                7    Similarly situated --

                8                Plaintiff,

                9                  -v-                   Case Number: 97-CV-75928

               10    LEE BOLLINGER, JEFFREY LEHMAN,

               11    DENNIS SHIELDS, and REGENTS OF

               12    THE UNIVERSITY OF MICHIGAN,

               13                Defendants,

               14                And

               15    KIMBERLY JAMES, et al.,

               16                Intervening Defendants.

               17    ------------------------------------/          VOLUME 10

               18                             BENCH TRIAL

               19              BEFORE THE HONORABLE BERNARD A. FRIEDMAN

               20                    United States District Judge

               21               238 U.S. Courthouse & Federal Building

               22                    231 Lafayette Boulevard West

               23                          Detroit, Michigan

               24                     THURSDAY, FEBRUARY 8, 2001

               25    













                                                                           2

                1           APPEARANCES:

                2    

                3           FOR PLAINTIFF:  Kirk O. Kolbo, Esq.

                4                           R. Lawrence Purdy, Esq.

                5    

                6           FOR DEFENDANTS:  John Payton, Esq.

                7                            Craig Goldblatt, Esq.

                8                            On behalf of Defendants.

                9    

               10                            George B. Washington, Esq.

               11                            Miranda K.S. Massie, Esq.

               12                            On behalf of Intervening Defendants.

               13    

               14           COURT REPORTER:  Joan L. Morgan, CSR

               15                            Official Court Reporter

               16    

               17    

               18    

               19    

               20    

               21    

               22    

               23    

               24    

               25    













                                                                           3

                1                            I  N  D  E  X

                2           

                3           WITNESS:                           PAGE:

                4    WALTER ALLEN

                5    Cross Examination by Mr. Kolbo               5

                6    Re-Direct Examination by Ms. Massie        110

                7    

                8    EUGENE GARCIA

                9    Direct Examination by Mr. Washington       125

               10    

               11    ERIC FONER

               12    Direct Examination by Ms. Massie

               13    Cross Examination by Mr. Richter

               14    Cross Examination by Mr. Payton

               15    

               16                       E  X  H  I  B  I  T  S

               17                                    MARKED    RECEIVED

               18    

               19    

               20    

               21    

               22    

               23    

               24    

               25    













                                                                           4

                1                          Detroit, Michigan

                2                     Thursday, February 8, 2001

                3                       (At or about 9:10 a.m.)

                4                              -- --- --

                5            THE COURT:  You may be seated.  Thank you.  Good 

                6    morning. 

                7            MS. MASSIE:  Judge, a rescheduling thing.  I think 

                8    particularly with Professor Allen's cross exam starting now, 

                9    we should plan on starting David White tomorrow morning, 

               10    go from Professor Allen into Dean Garcia of the Berkley 

               11    Graduate School of Education, and then into Professor Eric 

               12    Foner today, and I think that will pretty much take up the 

               13    day.

               14            THE COURT:  And tomorrow is who?

               15            MS. MASSIE:  Tomorrow we start with David White, 

               16    who will testify about race and the LSAT. 

               17            We also have Rick Lempert who has done a study of 

               18    minority and white grads of the U of M Law School, and 

               19    Frank Woo, who is an expert on Asian Americans and 

               20    affirmative action.

               21            THE COURT:  Great.  Okay.

               22            Good morning, Mr. Kolbo. 

               23            MR. KOLBO:  Good morning, Your Honor.

               24            Good morning, Dr. Allen.

               25            THE WITNESS:  Good morning, Attorney Kolbo.













                                                                           5

                1                     CROSS EXAMINATION

                2    BY MR. KOLBO:

                3      Q   We have met before?

                4      A   Yes. 

                5      Q   I want to start out by asking you some questions about 

                6    the methodology of the focus groups that you assembled at 

                7    Michigan and elsewhere. 

                8            First of all, there are -- among the schools that 

                9    you looked at, three of them are quite large institutions; 

               10    correct?

               11      A   That's true. 

               12      Q   University of Michigan, Michigan State, and University 

               13    of California Berkley are quite large undergraduate 

               14    institutions, is that correct?

               15      A   All the institutions are sizable, yes. 

               16      Q   And correct me if I'm wrong, but my understanding is 

               17    that Michigan, the undergraduate school, the principal 

               18    undergraduate school has about 20,000 students or so, 

               19    does that sound about right?

               20      A   I would have to check the figures, but I can take your 

               21    word for it.

               22      Q   Okay.  And Berkley has about just a few more, between 

               23    20,000 and 23,000 students, roughly, undergraduate, would 

               24    that be correct?

               25      A   Probably seems appropriate.













                                                                           6

                1      Q   Michigan State a little larger, around 30,000-some 

                2    students at their undergrad school, seem fair?

                3      A   I haven't studied the figures, so I'll have to trust 

                4    your figures.

                5      Q   Harvard, around 6,000 or 7,000 students, undergraduate 

                6    school.  If I'm right, it looks like you were conducting 

                7    focus groups at institutions that had, at the undergrad, 

                8    these undergraduate institutions, between 75,000 and 80,000 

                9    students, would that be -- does that sound reasonable?

               10      A   As I said, I have not looked at those figures, so 

               11    I'll have to trust your numbers.

               12            THE COURT:  Your mike may not be on.  Everybody 

               13    came, they might as well be able to hear us. 

               14    BY MR. KOLBO:

               15      Q   Okay.  About 75,000 to 80,000 students, if I'm right, 

               16    in terms of the number of students at these undergraduate 

               17    institutions, and am I correct that the number of students 

               18    in your focus groups all together, for all of the focus 

               19    groups together at the undergraduate level, you looked -- 

               20    you had 68 students; is that right?

               21      A   We had 68 students in the focus groups and we had 

               22    another 200 surveys from those campuses, and as I had 

               23    mentioned yesterday, in the past I have done research that 

               24    included 5,000 African American students randomly sampled 

               25    nationally, and in the upper midwest another study of 













                                                                           7

                1    2,500 students sampled nationally.

                2      Q   I was asking about your focus group work.

                3      A   Well, in terms of the focus group numbers, that's a 

                4    correct number.

                5      Q   That's correct, right, 68?

                6      A   But I was trying to give you some context.

                7      Q   Sure.  I appreciate that, but I want to focus on some 

                8    of these questions and then we will talk about some of these 

                9    other issues perhaps later, but 68 students in the focus 

               10    group, and you said 200 surveys, right?

               11      A   That's correct. 

               12      Q   And did that include the 68 students?

               13      A   Yes, it did.

               14      Q   So another 130 or so students who filled out surveys 

               15    and did not attend focus groups?

               16      A   That's correct. 

               17      Q   And about half of the focus groups at the undergrad 

               18    level were University of Michigan campus, right?

               19      A   Purposely so, yes.

               20      Q   So about 30-some students out of 125,000 were included 

               21    in the focus groups at the University of Michigan undergrad 

               22    school, true?

               23      A   That's true. 

               24      Q   And of the remaining, another 30 or 40 students were 

               25    in the focus groups out of the approximately 40,000 to 













                                                                           8

                1    50,000 at these other undergraduate institutions; correct?

                2      A   Yes.

                3      Q   Two focus groups at Harvard?

                4      A   That's correct.

                5      Q   About a dozen students or so?

                6      A   Yes. 

                7      Q   Out of 6,000 or 7,000, true?

                8      A   The 6,000 or 7,000, as I said, I'll trust you for that 

                9    number.  I'll have to again check it in order to, you know, 

               10    assert that it's a correct figure, but the figure for the 

               11    focus groups sounds like it's on target.

               12      Q   About a dozen out of the entire Harvard undergrad 

               13    campus at the focus groups?

               14      A   That's probably correct. 

               15      Q   And you had three focus groups at Berkley, so that's 

               16    about twelve to fifteen students at that campus?

               17      A   I would have to look at the numbers, because those 

               18    numbers sound a bit lower for me.  Do you want me to give 

               19    you an accurate count on the focus groups at Berkley?

               20      Q   I think we have -- - is it report page seven, am I 

               21    right, following page seven?  I guess we can be specific 

               22    about this.

               23      A   I'll have you help me.

               24            THE COURT:  Page 7 in Exhibit 157?

               25            MR. KOLBO:  It's actually right behind figure two.  













                                                                           9

                1    It's an unnumbered page.  

                2    BY MR. KOLBO:

                3      Q   Now, these we don't have the identification of the 

                4    school here, do we? 

                5      A   No.

                6      Q   But maybe you know what they are.

                7      A   I do. 

                8      Q   And so from Michigan State, we have one focus group 

                9    from Michigan State, and which one is that?

               10      A   Correct.  The one focus group from Michigan State -- 

               11    just a second, I'll check my files. 

               12            The Michigan State focus groups are twelve.

               13      Q   Number twelve?

               14      A   Yes.

               15      Q   So that's two people?

               16      A   Yes.

               17      Q   Two people out of whatever the size of that campus is, 

               18    consisted of the entire focus group at the Michigan State 

               19    University?

               20      A   And I should add we ended up collecting a larger 

               21    number of surveys from Michigan State. 

               22      Q   Okay.  They are part of the 200?

               23      A   Yes, they are.

               24      Q   But for the focus group, just two students?

               25      A   Correct.













                                                                           10

                1      Q   One man and one woman?

                2      A   Correct.

                3      Q   And then at Berkley you had three focus groups.  

                4    Which three are those?

                5      A   The three focus groups at Berkley, the group was 

                6    number ten, number six and number four. 

                7      Q   Okay.  So number four has five people in it?

                8      A   Correct.

                9      Q   All African American?

               10      A   Yes.

               11      Q   Number six has seven people in it, correct, all 

               12    Latino?

               13      A   All Latino. 

               14            And by the way, they were purposely selected to be 

               15    restricted to those groups.

               16      Q   Sure.  And I'll ask you about that, but so far, twelve 

               17    students so far; correct?

               18      A   That's right.

               19      Q   And then the third one has got six in it, so we have 

               20    got -- and I hate doing math up here publicly, but 18?

               21      A   Sounds correct.

               22      Q   So 18 students were in the focus groups at the 

               23    University of California at Berkley?

               24      A   Sounds correct.

               25      Q   Out of the entire undergrad campus there?













                                                                           11

                1      A   That's correct. 

                2      Q   And two were at Harvard.  Which two were those?

                3      A   The two Harvard focus groups are number three and 

                4    number seven. 

                5      Q   Okay.  Number three had six people in it, all African 

                6    American, and number seven had five in it?

                7      A   Number three was an African American focus group and 

                8    similarly with number seven it was a Latino focus group. 

                9      Q   So a total of 11 students were involved in the Harvard 

               10    focus group; correct?

               11      A   Correct. 

               12      Q   The average size of these groups, it looks like it's 

               13    five to six students; true?

               14      A   Average size of a focus group that's effective has 

               15    to be between five and eight, no more than ten students, 

               16    otherwise, you don't have the discussion.

               17      Q   And at the -- I'm going to try to talk about these 

               18    kind of separately, but while we're talking about numbers, 

               19    the total number in addition to those undergraduate focus 

               20    groups, you had some law school focus groups, as well?

               21      A   That's correct. 

               22      Q   Those were all at the University of Michigan Law 

               23    School?

               24      A   Exactly. 

               25      Q   There were a total, as I understand it, of 31 students 













                                                                           12

                1    on the figure behind page 60, I think, of your report?

                2      A   That is a correct number, I think.  It sounds correct. 

                3      Q   And that's 30 out of, I don't know, what is it, about 

                4    1,000 students all together at the University of Michigan 

                5    Law School?

                6      A   Again, that's a figure I don't necessarily remember.

                7      Q   Now, and you mentioned, you just testified that these 

                8    were intentionally by and large racially segregated focus 

                9    groups, correct, that was by design?

               10      A   I'm pausing because of the term of segregated focus 

               11    group.  These were targeted focus groups, that's the term 

               12    that I would prefer, because segregation for me just 

               13    suggests the old problematic heritage of legal exclusion, 

               14    and in fact, we did focus groups across each of the racial 

               15    groups and each of the ethnic groups and each of the gender 

               16    groups and in fact were trying to standardize the groups, 

               17    which is a statistical procedure; that is, you try to 

               18    control for variation in terms of other external 

               19    characteristics, so thus we targeted the groups and 

               20    organized them in terms of, in some instances, in most 

               21    of the instances, in terms of shared racial identity. 

               22            But you are aware, I'm sure, that there were several 

               23    of the groups that were purposely mixed race and mixed 

               24    ethnicity.

               25      Q   But they weren't -- you mentioned the word legally 













                                                                           13

                1    segregated after, and of course I didn't mean that, but 

                2    they were intentionally or purposively segregated by race, 

                3    correct, as part of the design of this case?

                4      A   And again, I object to the term, segregated.  

                5    They were a targeted group.  They were a group that was 

                6    standardized and they were a group that was assembled with 

                7    the idea and goal of assembling them around those common 

                8    identities.

                9      Q   Okay.  Well, I do understand you're in favor of, 

               10    you believe we ought to have integrated racial campuses, 

               11    correct?

               12      A   Absolutely. 

               13      Q   Would you agree with me?

               14      A   And an integrated society, and the two are linked, if 

               15    I might.

               16      Q   And would you agree with me that most of these focus 

               17    groups were not racially integrated, were they?

               18      A   And as I have spent some time explaining, anticipating 

               19    that perhaps such an incorrect assessment might be made, 

               20    the groups were, as previously mentioned in several cases, 

               21    specifically targeted and organized around common or shared 

               22    racial or ethnic identity, in one case, in another case or 

               23    category around shared gender identity, but as you do recall 

               24    from looking at the data and as I said a moment ago, some of 

               25    those groups were purposely mixed, but they were mixed in 













                                                                           14

                1    terms of race and ethnicity, but with the members, for 

                2    example, sharing common gender status.

                3      Q   Okay.  I won't use the word in my next question, 

                4    integrated or segregated, but only two of the twelve 

                5    groups were racially mixed; correct?

                6      A   That's probably correct. 

                7      Q   And only one of the groups was all white; correct?

                8      A   That's correct.  Well, no, no, that's not correct.  

                9    You mean -- which are you talking about, are you talking 

               10    about the law school or the undergrad?

               11      Q   I'm sorry, I shouldn't go back and forth.  I was 

               12    looking at the figure for the undergrad schools, only one 

               13    of those twelve was --

               14      A   One of the twelve for the undergrad.

               15      Q   And while we are on the subject, I guess --

               16      A   And one for the law schools.

               17      Q   Okay.  So one of each?

               18      A   Yes.

               19      Q   Each group was all white.  Do you think there would 

               20    have been some benefit to have seen what the interaction 

               21    might have been with more mixing of the races in these focus 

               22    groups?

               23      A   Obviously, the more information you get the better, 

               24    but given as I mentioned yesterday, limitations in terms of 

               25    resources, limitations in terms of time and the specific 













                                                                           15

                1    focus of this research, that goal was one that was of lesser 

                2    priority than the advantages that would accrue from having 

                3    students in a group of other students who are like 

                4    identified and then benefitting from their feeling free to 

                5    discuss the kinds of issues that are of importance and note 

                6    to them. 

                7            And I would -- as an aside to that, of course, I had 

                8    taught at the University of Michigan for some ten years, I 

                9    have been teaching at UCLA for another twelve, and I have 

               10    been teaching for twenty-five years plus, and needless to 

               11    say, my classes have had exactly the kind of mix that you 

               12    describe, and so I have learned some lessons from that 

               13    mixture, as well, and from the interaction of the sort 

               14    you're referring to.

               15      Q   One of the things you just mentioned was that, as I 

               16    understand, that one of the reasons you chose to organize 

               17    these groups the way you did was that the students would 

               18    feel free to say what they are thinking?

               19      A   Precisely.

               20      Q   And is your opinion then that the students would feel 

               21    free to say what they are thinking in groups that were not 

               22    racially mixed?

               23      A   I definitely think that's true.

               24      Q   How about if you had a racial group that was half 

               25    and half, half minority, half white, say, would, in your 













                                                                           16

                1    opinion, would students of all, both races, feel free to 

                2    express what's on their mind in that situation?

                3      A   I think as I have pointed out yesterday, if you 

                4    move to a situation where you have closer to equal 

                5    representation, then indeed you would likely get some 

                6    discourse and exchange between equals, but I don't know 

                7    that I'm following the point that you're making.

                8      Q   Well, I'm not -- you know, I'm not asking you to 

                9    accept any point that I'm making, but I'm just wondering 

               10    whether students would, in your opinion, would feel free 

               11    to speak their minds as you don't think they would be in 

               12    some circumstances, as long as, say, there was equal 

               13    representation of the group?

               14      A   I think they would feel free to say some things, but 

               15    there are some utterances that no matter what the mix in the 

               16    room, I mean, in terms of the proportionality in terms of 

               17    the two racial groups, for example, black and white, that 

               18    students would not feel free to say, compared to the sense 

               19    of liberty that they would experience in, say, an all white 

               20    group, and it's, I think, a fairly straightforward reality, 

               21    because if we think about our lives, if you think about your 

               22    life, I mean, we talk differently in -- depending on the 

               23    racial group that we are a member of. 

               24            I mean, if we are in a homogeneous racial group, 

               25    then some of our comments about people of other races are 













                                                                           17

                1    different than what they might be, than what they would 

                2    likely be in the presence of people of that race, and 

                3    similarly, the point holds with gender.

                4      Q   You mentioned something about an all white group.  

                5    What about if you had an all black group, does that make 

                6    the discussion freer or less?

                7      A   Absolutely.  That's exactly the point I'm trying to 

                8    make.

                9      Q   How about a black group that has a few white students, 

               10    would black students feel, in your opinion, free to express 

               11    themselves then?

               12      A   I would have to think about that a bit and I would 

               13    have to look at some research that has looked at questions 

               14    of proportionality and how that influences, either inhibits 

               15    or enhances interaction, so I'm not quite sure how to answer 

               16    that question.

               17      Q   What it sounds like is your opinion, but correct me if 

               18    I'm wrong, that mixing the races to any extent, there's some 

               19    inhibiting of people of different races feeling free to 

               20    express what is on their mind; is that fair summary?

               21      A   That's very fair in this society, because as you know, 

               22    race talk is very difficult for us as a society, and it 

               23    becomes even more difficult when we have other racial group 

               24    members in the room, but needless to say, those are lessons 

               25    we need to learn, and to the extent that you look at work 













                                                                           18

                1    of someone like Silveri Atado, and you see the sort of 

                2    variations in exchanges that occur as a result of the mix 

                3    of racial proportions in a room, then you come away feeling 

                4    encouraged, if you will, that as students do have a way of 

                5    working through these issues, but those tensions are there, 

                6    because race talk, race relations in this society are very 

                7    difficult.  And challenging is the word I should use.

                8      Q   Let me move on a little bit here. 

                9            You testified yesterday about the differences 

               10    between qualitative and quantitative analysis; correct?

               11      A   Methodology analysis, yes, I did.

               12      Q   There are differences between those two, there are 

               13    strengths and weaknesses of both?

               14      A   Correct. 

               15      Q   What you did with respect to your focus group work is 

               16    qualitative research; correct?

               17      A   That's correct. 

               18      Q   Not quantitative; correct?

               19      A   Correct. 

               20      Q   And I just want to make sure I understand some of the 

               21    differences, and maybe some of the strengths and weaknesses, 

               22    as well. 

               23            Do I understand that with a quantitative -- well, 

               24    first of all, one type of quantitative analysis is what is 

               25    called, and I think you referred to this term before, is 













                                                                           19

                1    probabilistic studies, right, if you're familiar with that 

                2    term?

                3      A   I am. 

                4      Q   Okay.  I mean, I think in your deposition I think you 

                5    mention it a few times.

                6      A   Okay.  I responded to your mention of it.  It's 

                7    actually not a term that we use, but I understood what 

                8    you were referring to. 

                9      Q   In terms of probabilistic, a probabilistic study is a 

               10    form of a quantitative assessment; correct?

               11      A   Studies that are probabilistic and based on 

               12    probability are normally referred to as inferential 

               13    statistics.

               14      Q   Okay.

               15      A   And so just very quickly, when you start talking about 

               16    using an inferential methodology, essentially what you are 

               17    posing is that the sample on which you base your analysis 

               18    is a representative sample, it's a randomly selected 

               19    sample, it's a sample that can be said to represent the 

               20    characteristics accurately or within some degree of error 

               21    of the total population, and so thus, this notion of using 

               22    an inferential technique and inferential statistics. 

               23      Q   You said that a lot better than I could have asked 

               24    the question, so I appreciate that.

               25      A   Okay.  Just trying to be helpful. 













                                                                           20

                1      Q   What you have described is not what you would do with 

                2    respect to focus groups, your focus groups, correct?

                3      A   What I describe is one of the many methodologies that 

                4    I have used in my research for years, and in fact, if I 

                5    can elaborate and give you a sense of anticipating your 

                6    question about strengths and weaknesses of areas --

                7      Q   Can I just -- I would like to sort of do this, 

                8    otherwise I lose track of my thoughts here --

                9      A   Okay. 

               10      Q   -- and get the answers to the questions that I have 

               11    got, first of all, here, and your --

               12      A   I apologize.

               13      Q   And Ms. Massie will have a chance to be asking you 

               14    some of these questions, as well.

               15      A   I'm trying to be responsive. 

               16      Q   You described, I think, very -- at least to my 

               17    perfect understanding what a probabilistic study is and your 

               18    description of that contains some of the strengths that are 

               19    associated with quantitative research; correct?

               20      A   Correct.

               21      Q   And the characteristics that you have described 

               22    with respect to this, to a probabilistic or inferential 

               23    statistics study, those aren't the characteristics that are 

               24    applicable to the focus group that you did, correct, just 

               25    the focus group work?













                                                                           21

                1      A   That is a correct comment.

                2      Q   One of the things that a probabilistic study does or 

                3    an inferential statistics study does is you get -- you look 

                4    for and it's important to have a random sample of the group 

                5    that you're studying; correct?

                6      A   This is correct. 

                7      Q   You don't have that in your focus group work; correct?  

                8    I think you have acknowledged that.

                9      A   Focus groups never have random selection in terms of 

               10    an inferential statistics approach, because it's simply not 

               11    an appropriate selection procedure to match with focus group 

               12    methodology. 

               13            Focus group methodology by its very nature and 

               14    purpose is intended to focus on a specific small defined 

               15    population, and then to, if you will, exchange the sort 

               16    of broad generality you can get from surveys for the rich, 

               17    detailed content that only comes forward from smaller group 

               18    discussions or from intensive individual interviews.

               19      Q   So focus groups don't depend upon randomness; correct?

               20      A   Not at all. 

               21      Q   They don't depend on a representative sample; correct?

               22      A   The representativeness of a focus group comes in 

               23    exactly the point you were asking about earlier; that is, 

               24    you want focus groups that reflect or incorporate key 

               25    dimensions of variation within the population, so thus the 













                                                                           22

                1    rationale for an African American or a Latina/Latino or a 

                2    white focus group.

                3      Q   But representativeness has a -- that's a term of art 

                4    in inferential statistics; correct?

                5      A   I'm not sure I'm following that question.

                6      Q   Well, don't you understand that representativeness 

                7    of a sample is something that's important in inferential 

                8    statistics?

                9      A   For inferential statistics, yes.

               10      Q   And as that term is used and as it's important in 

               11    inferential statistics, you don't need that, you don't 

               12    look for that, in focus group work; correct?

               13      A   No, you have to have -- well, maybe I'm not 

               14    understanding your question, but in focus group research, 

               15    in qualitative research, you have sort of planned and 

               16    programmed variability, so you do have to have some 

               17    representativeness, but in terms of it being mathematically 

               18    calculable, no. 

               19      Q   And I won't belabor this, but just so I understand it, 

               20    an example of a quantitative inferential statistics analysis 

               21    that everybody is kind of familiar with is polling data, for 

               22    example, right?

               23      A   That's correct.

               24      Q   We just came through a long presidential election, we 

               25    all saw a lot of polls, and it's pretty commonly understood 













                                                                           23

                1    that one can take a sample of, say, 1,000 American voters 

                2    and from that 1,000 draw, through inferential statistics, 

                3    some valid conclusions about how people want to vote with 

                4    some margin of error that is accurate with respect to the 

                5    entire population; correct?

                6      A   It's accurate in the most general sense, correct, and 

                7    as you said, depending on the degree of -- with some degree 

                8    of error.

                9      Q   And just to be -- I want to make sure I'm 

               10    understanding this, one can draw statistically valid and 

               11    reliable conclusions from that group of 1,000 to the 

               12    larger population of, say, 80 million or 100 million, within 

               13    a margin of error?

               14      A   But only certain kinds of conclusions, so I think 

               15    that is a correct point. 

               16            Maybe it would help if I just made a fairly simple 

               17    distinction between quantitative and qualitative statistics, 

               18    which is a discussion that we're having now, and the 

               19    quantitative approach is more of a snapshot, so it's a 

               20    snapshot of a larger whole, if you will, but what you get 

               21    with qualitative methodology is something that's akin to a 

               22    video.  You get more of the process, so that's why, in fact, 

               23    the field is moving toward using the two methodologies and 

               24    perspectives in sort of congruence or in concert.

               25      Q   Okay.  But I also understand, am I right, that while 













                                                                           24

                1    with quantitative analysis you can draw these statistically 

                2    valid and reliable conclusions from the sample to the larger 

                3    population, you can't draw those statistically valid and 

                4    reliable conclusions from the small sample of a focus group 

                5    to the larger population, correct, that's the weakness of 

                6    focus groups?

                7      A   The weakness of focus groups is that you don't have 

                8    an estimate of the probability to which the conclusions 

                9    represent the whole.

               10      Q   Right.  You can't draw --

               11      A   And thus, you rely on survey data for that purpose.

               12      Q   Right.  In focus group work you can't draw and rely 

               13    upon statistically valid and reliable conclusions from the 

               14    small focus group sessions to the larger population being 

               15    studied, right, in terms of the statistical reliability 

               16    of validity, is that a fair statement?

               17      A   I'm pausing, because really the distinction is a 

               18    mathematical one, and so the lessons that you learn from 

               19    inferential statistics or the lessons that you learn from 

               20    what you referred to as probabilistic studies, even though 

               21    they may be wrong or incorrect, you can say the degree to 

               22    which that particular finding can be presumed to represent 

               23    what you would find --

               24      Q   Sure.

               25      A   -- within the larger population, and I say, even 













                                                                           25

                1    though it may be incorrect, because often you're using 

                2    the wrong questions or you are using faulty instruments, 

                3    so I'm saying that it's not a substantive determination so 

                4    much as it is a mathematical or a statistical one, so.

                5      Q   Right. 

                6      A   It's a matter of it not necessarily being truth, 

                7    that's what I'm trying to make sure we don't get --

                8      Q   There could be flaws in a question, I suppose, but as 

                9    to statistics and mathematics, one can draw these valid and 

               10    reliable conclusions to the larger population?

               11      A   You can, and being cautious that you may in fact be 

               12    using the wrong instruments and asking the wrong questions 

               13    and not understanding the process.

               14      Q   Okay.  And you don't do that with focus groups, that's 

               15    just one of the features of focus groups?

               16      A   Right. 

               17      Q   Okay.  And you have mentioned that your focus group 

               18    work was purposive; right?

               19      A   The sampling was purposive.

               20      Q   And purposive meaning you had certain predetermined 

               21    criteria that you were relying upon in the selection of your 

               22    sample, of your focus group sample?

               23      A   And I have actually shared those criteria.  The point 

               24    is that what we wanted to do is to select from the pool of 

               25    African American students who said they were interested in 













                                                                           26

                1    serving in a focus group, and by the way, that selection was 

                2    random, but the original pool was not a random pool, but 

                3    having gotten that pool, then, we randomly selected and 

                4    assigned people to the two African American focus groups, 

                5    let's say. 

                6      Q   And my understanding is --

                7      A   Excuse me for interrupting. 

                8            So the purposive dimension is really quite simple.  

                9    It was in terms of wanting to have a sample of a number of 

               10    focus groups that were homogeneous in terms of race, and 

               11    in the second case a number of focus groups that were 

               12    homogenous in terms of gender. 

               13      Q   But within that, then, you were actually looking for 

               14    students from particular races?

               15      A   Yes.

               16      Q   That's part of the purposive element of this study?

               17      A   Yes, particular races and particular gender.

               18      Q   You didn't consider doing a probabilistic study here, 

               19    did you, or an inferential statistics focus group?

               20      A   At the University of Michigan? 

               21      Q   Right.

               22      A   I have done ten years of probabilistic research at the 

               23    University of Michigan and found it inadequate for reasons 

               24    we have been discussing.  I kept finding these correlations, 

               25    but I had no handle on the underlying dynamics that would 













                                                                           27

                1    produce a correlation, for example, that translated into 

                2    students of color being less satisfied with their 

                3    educational experience and students of color having lower 

                4    GPA's, students of color having higher rates of alienation 

                5    and feelings of isolation, so thus the need to match up with 

                6    that that data from qualitative research, because as you 

                7    know, the inferential research can only go so far, it can 

                8    just -- so for those ten, twenty years, I have been looking 

                9    at and examining correlations, and so, thus came the need to 

               10    try to dig deeper into the relationships and understand the 

               11    movie part, if you will, what the dynamics are and what the 

               12    process is.

               13      Q   And the quantitative work that you have done in past 

               14    years doesn't answer any of those explanatory questions 

               15    about what's going on with respect to minorities and grades 

               16    and discrimination; correct?

               17      A   It answers those questions, but only to the level of 

               18    general patterns and relationships between variables, so 

               19    again, I could do all the analysis and indeed did the 

               20    analysis using sophisticated quantitative techniques so that 

               21    you can look at basic correlations between major variables 

               22    and then break those down, but then ultimately what is 

               23    missing to a sizable extent is the human voice and the 

               24    human experience and the sort of dynamic dimension. 

               25            So I'm simply answering a qualified yes to your 













                                                                           28

                1    question.  I mean, the surveys could answer certain kinds 

                2    of questions, but they could not answer a question, for 

                3    example, about the actual human toll of individuals and how 

                4    they feel on a daily basis and it could not extract the 

                5    specific instances of racial discrimination, if you will, 

                6    or of gender harassment.

                7      Q   And for that information, we have your focus groups?

                8      A   Correct.

                9      Q   Now, you're familiar with the concept, and I think 

               10    this might have been touched upon yesterday, but you're 

               11    familiar with the concept of selection bias?

               12      A   Yes, I am.

               13      Q   Selection bias is a bad thing?

               14      A   In inferential statistics, and as you say, 

               15    probabilistic studies, yes.

               16      Q   Isn't selection bias also bad for focus group work?

               17      A   Absolutely not, because it's purposive.

               18      Q   So you wouldn't mind having a biased focus group 

               19    designed -- a bias in the design of your focus group?

               20      A   Let me back up.  In terms of selection bias, I should 

               21    have asked you what you meant by the term, but as I heard 

               22    the question, it seemed to me to be relinking back to this 

               23    concern with kind of representativeness, so I answered in 

               24    that frame.  Representativeness is not the same goal with 

               25    qualitative research as it is with quantitative research. 













                                                                           29

                1            Now, obviously, bias itself is problematic or a 

                2    sort of selection bias that would, for example, fill a 

                3    focus group with people who are biased on the question.

                4      Q   Okay.

                5      A   It could be problematic.  It may well be that if 

                6    you're trying to understand prejudice, you want to have a 

                7    focus group filled with people who are very prejudiced.

                8      Q   Okay.  And I think I understand where we're diverging 

                9    here.  If you use the word, bias, in a very broad sense, as 

               10    sort of a neutral sense, your focus group work is biased 

               11    because you're biased toward finding certain ethnic groups, 

               12    you know, you want certain ethnic groups, that's the only 

               13    sense in which that bias occurs; correct?

               14      A   See, I hesitate to accept that, that's why I tried 

               15    to back off and reframe, because again, the selection 

               16    criteria are not biased, they are built into the focus 

               17    group structure, and I imagine it would become biased if, 

               18    for example, you left out an important or a major racial 

               19    group, but even there it just depends on the purpose of 

               20    the research. 

               21            If you are trying to understand how women experience 

               22    gender hostility, then a very reasonable case can be made 

               23    for studying women and only studying women. 

               24      Q   And you have anticipated one of my questions, which 

               25    is, if you're studying an issue, how people feel about an 













                                                                           30

                1    issue, it would be a bad form of selection bias to design 

                2    the selection of the group or the focus group so that the 

                3    individuals were skewed in their views one way or the 

                4    other on the issue being studied; is that a fair statement?

                5      A   I think it could be potentially problematic.

                6      Q   Wouldn't that be --

                7      A   It wouldn't be necessarily fatal.  It depends on the 

                8    skill of the person who is facilitating the focus group, and 

                9    again, it depends on your goals.

               10      Q   Wouldn't you agree that it would be a perversion of 

               11    the process to try to skew the sample on the issues before 

               12    it in a focus group?

               13      A   I'll try to repeat a point I have just made.  There 

               14    are times when your goal is to include in a focus group, 

               15    if you will, a certain point of view, a certain set of 

               16    experiences, and so in that sense it's not at all a 

               17    perversion, but it's consistent with what you're trying to, 

               18    if you will, standardize, so if you're doing a study of 

               19    individuals who have experienced racial profiling in terms 

               20    of unwarranted stops by traffic cops, then it may well be 

               21    that you want to include in that focus group structure, 

               22    instead of students, people who have had that experience.

               23      Q   Let me ask it this way:  If you're studying the issue 

               24    of whether affirmative action or the taking of race into 

               25    account in the admissions process is something that should 













                                                                           31

                1    be maintained, would it skew the selection of the focus 

                2    group to do anything in the design to try to get students 

                3    who have expressed a particular point of view on that 

                4    subject?

                5      A   I think that our judgment was that, certainly --

                6      Q   It's just a general question, not specifically about 

                7    this case.

                8            MS. MASSIE:  I would just ask you to let the witness 

                9    finish his answer.

               10            THE COURT:  Well, he can finish the answer, but I 

               11    think he has limited it generally as opposed to this case.

               12            THE WITNESS:  Our judgment --

               13            MS. MASSIE:  I'm just asking -- excuse me for 

               14    interrupting, Professor Allen.  I'm just asking that the 

               15    witness not be interrupted by Mr. Kolbo.  This happened 

               16    repeatedly at his deposition.

               17            THE COURT:  Well, first of all, make your 

               18    objections.  I don't know what happened at the deposition.  

               19    Make your objections.  We're at trial today, and if you have 

               20    an objection, make it.

               21            MS. MASSIE:  I'm objecting to the interruption 

               22    of the witness. 

               23            THE COURT:  Overruled. 

               24            Go on, but phrase your question the way you want it 

               25    answered.













                                                                           32

                1    BY MR. KOLBO:

                2      Q   Would it be fair in a general sense, Dr. Allen, if 

                3    you're studying, if you want to study whether or not 

                4    affirmative action is something that should be used in 

                5    college or law school admissions, it would be a perversion 

                6    of the process to try to skew the sample, focus group 

                7    sample, in one direction or the other on that, on how 

                8    students feel about that issue, fair enough?

                9      A   I think that's a fair enough statement.  I find the 

               10    reference to a perversion of the process, skewing -- but 

               11    generally, I guess that's a reasonable position. 

               12      Q   Well, you just mentioned you gave a deposition in this 

               13    case; correct?

               14      A   I did. 

               15      Q   You have a copy.  I think we placed a copy of your 

               16    deposition up there.

               17      A   I see it. 

               18      Q   Could you go to page 68 of the transcript, line three?

               19      A   Page 68, line three? 

               20      Q   Yes.

               21      A   Yes, sir, I have it.

               22      Q   And feel free to read the context here, but I'm going 

               23    to ask -- I'm going to read a question.  You, I think, were 

               24    clear enough for myself in the answer, but if you want to 

               25    take a look at the question, the question on page 68, line 













                                                                           33

                1    number three:  "And would you agree it would be a 

                2                perversion of the process to try to 

                3                skew that sample or that group of 

                4                students in one direction or the 

                5                other; correct?"

                6                     Answer:  "Exactly." 

                7            I mean, was that your answer?

                8      A   That's my answer, and as you pointed out, it's in 

                9    a context.  We had had a discussion or you had asked me 

               10    several questions about the recruitment procedures prior 

               11    to that on page 67 and I indicated that there was a very 

               12    broad recruitment strategy where we used e-mails, we used 

               13    newspaper articles, we used petitions on the street, visits 

               14    to classes, and so in that context of the discussion, as we 

               15    came to this question, most certainly I agreed with you, 

               16    because I had sort of gone to great pains to demonstrate 

               17    that, in fact, we took a number of explicit approaches and 

               18    strategies to avoid exactly such skewing and distortion. 

               19      Q   Would it, in the design of this study, these focus 

               20    groups, would it have been improper in selecting the 

               21    students for the focus groups to try to get students who 

               22    have a view that affirmative action ought to be maintained 

               23    and to try to skew the sample in favor of that direction, 

               24    would that be proper?

               25      A   I think it would not have -- basically, each one of 













                                                                           34

                1    our communications indicated that we wanted to have a broad 

                2    representation of perspectives, and so in that sense it 

                3    would be no more improper to include students who were 

                4    supportive of affirmative action than it would be to include 

                5    those who objected to affirmative action, and indeed, if you 

                6    look at the transcripts, you see we have clear evidence that 

                7    we had balance in that respect; that is, people voicing 

                8    support and others voicing either reservations, if not 

                9    strong objections to it. 

               10      Q   But my question is, would it be improper in the 

               11    design, in actually going out and trying to assemble these 

               12    focus groups, to go out and try to skew the collection of 

               13    students with students who have a view in one direction; 

               14    that is, that they favor the use of affirmative action, 

               15    would that be improper if it were done?

               16      A   If, in fact, you're asking me would it be improper 

               17    to just stack the deck and only include students who were 

               18    supportive of affirmative action, I would say yes, I agree 

               19    with that.

               20      Q   Well, that wasn't exactly the question, but would it 

               21    be improper as part of the design of this group to go out 

               22    there and to try to assemble a group of students primarily 

               23    who were proponents of affirmative action?  I'm not asking 

               24    you to admit that you did it here, but would that be 

               25    improper, if it was done that way?













                                                                           35

                1      A   If we're still in the general case, it would not be 

                2    at all improper if you are trying to study students who are 

                3    supporters of affirmative action and you want to understand 

                4    the dynamic, the sort of life course that brought them to 

                5    the point of supporting affirmative action. 

                6            Similarly, if you wanted to understand how it is 

                7    that students came to object to or to not favor affirmative 

                8    action, then again, it would make sense to assemble a group 

                9    of students who did not support affirmative action, if 

               10    that's the focus group. 

               11            Now, if you're doing survey research, of course, 

               12    you want a broader representation. 

               13      Q   Backing up a little bit, you gave me an answer a 

               14    question or two ago that suggested that -- suggested and I 

               15    want to clarify this -- that in the groups that you actually 

               16    assembled you got a wide difference, you got widely 

               17    different views on whether affirmative action is something 

               18    that ought to be continued; is that --

               19      A   Absolutely did.

               20      Q   So you got a -- was there a significant number of 

               21    students who participated in these focus groups that thought 

               22    that affirmative action ought to be discontinued on college 

               23    campuses and law schools?

               24      A   No, there were not, but as my survey data demonstrated 

               25    both in terms of the surveys for this study, in conjunction 













                                                                           36

                1    with Grutter, as well as national survey data of my own and 

                2    national survey data collected by others, that there is a 

                3    majority support for affirmative action among college 

                4    students.

                5      Q   What percentage?  Do you have some idea what 

                6    percentage?

                7      A   I'd have to look up those statistics, to tell you 

                8    the truth. 

                9      Q   Well, I'm talking now about focus groups.

               10      A   Oh, I'm sorry. 

               11      Q   So what percentage if your focus group respondents, 

               12    roughly speaking, were opposed to the use of race as a basis 

               13    for admission, affirmative action?

               14      A   I actually can't tell you that, for reasons related 

               15    to the discussion we have had to this point.  We're talking 

               16    about qualitative data, and so those kinds of percentages, 

               17    but indeed, the surveys and the percentage of students who 

               18    reported that they did not support affirmative action, 

               19    that's summarized in survey data.  That's part of this 

               20    report. 

               21      Q   Okay.  And were there minority students in these focus 

               22    groups and the surveys who indicated that they were opposed 

               23    to the use of affirmative action in college admissions and 

               24    law schools?

               25      A   In the surveys, a few. 













                                                                           37

                1      Q   And how about in focus groups?

                2      A   Some, again. 

                3      Q   If I could ask you to turn to Exhibit 176.  Do you 

                4    have that book up there, that volume? 

                5      A   I don't see it.  I have Exhibit 158 through 160. 

                6            MR. KOLBO:  May I approach, Your Honor?

                7            THE COURT:  You may.

                8            THE WITNESS:  Thank you.

                9    BY MR. KOLBO: 

               10      Q   Is Exhibit 176 one of the e-mails that was sent out to 

               11    solicit students for the focus groups that you used at the 

               12    undergraduate level?

               13      A   Yes. 

               14      Q   Now, you were involved in the design of some of the 

               15    solicitations, the e-mails and so forth that went out; 

               16    correct?

               17      A   I provided the core of the solicitation and literally 

               18    did not solicit the students.  I purposely did not want to 

               19    solicit the students myself, so what I did was to provide a 

               20    core to just a group of students, a group of organizations, 

               21    that would do the recruitment.

               22      Q   Okay.  You were involved --

               23      A   Building the pool that we had talked about.  Excuse me 

               24    for interrupting.

               25      Q   I'm sorry. 













                                                                           38

                1            You were involved in the -- you had some hands-on 

                2    involvement in reading or at least approving some of the 

                3    solicitations that went out; correct?

                4      A   No, what I did was to -- and maybe I'm -- well, 

                5    I wrote and sort of agreed to a core recruitment and 

                6    description of the studies, so in other words, if you look 

                7    at each of the solicitations, you'll see that the study 

                8    purpose is described, the study structure, our research team 

                9    is identified, and the dates are there.  So that general 

               10    information we provided, yes. 

               11      Q   But isn't it true that you actually approved the text 

               12    of this particular e-mail exhibit?

               13      A   Which one.

               14      Q   Exhibit 176.

               15      A   Yes. 

               16      Q   Okay.  So you read it before it went out and you 

               17    reviewed it and you approved it; correct?

               18      A   With each of these, what I approved was the core 

               19    portion of it, so I cannot definitively say that sort of 

               20    the formal form is -- the final form is something that I 

               21    approved, but I will say to you quite, quite clearly that 

               22    the solicitations went out with my approval.

               23      Q   Well, you have had a chance now to read Exhibit 176.  

               24    There is nothing in there that you would have disapproved of 

               25    or did disapprove of?













                                                                           39

                1      A   No, there is nothing here that would have been 

                2    terribly problematic for me.

                3      Q   Okay.

                4      A   Mainly because I had factored in a sort of stop gap or 

                5    a supplemental selection procedure of sort that I described; 

                6    that is, in other words, I knew that I would get a pool of 

                7    students from which we would select and assign to focus 

                8    groups.

                9      Q   Okay.

               10      A   So. 

               11      Q   And one of the things that this e-mail informed 

               12    people was that:  "This is a chance for students at 

               13                Michigan State University, in this case, 

               14                to contribute to a legal case that will 

               15                impact the educational opportunities of 

               16                minority students for generations to come.  

               17                It is our Brown versus Board of Education, 

               18                and we must do everything we can to 

               19                insure victory."

               20            You approved that message going out in a selection 

               21    of these focus groups; correct?

               22      A   Sure, yes, I did.

               23      Q   Wouldn't you agree with me that that injects just a 

               24    little bit of selection bias into the way in which these 

               25    focus groups were designed?













                                                                           40

                1      A   I could, possibly, yes.  Possibly, yes.  I hesitate, 

                2    because as you pointed out at the very beginning of your 

                3    cross examination, we're talking about two students out 

                4    of 68 for the Michigan State students, so any selection 

                5    bias that might have occurred certainly was considerably 

                6    diminished just by that very insignificant fraction of 

                7    the total.

                8      Q   Well, this would have gone out to whoever was 

                9    solicited at Michigan State University; correct?

               10      A   In terms of focus groups, yes. 

               11      Q   Okay.  And do you know whether this form went out to 

               12    other schools as well or don't you know that?

               13      A   No, no, I have the forms for the other schools.  I 

               14    think you have those in 177 and 178, and indeed, I think a 

               15    second form went out at -- to Michigan, only Michigan State 

               16    campus, but unfortunately, we just didn't get very many 

               17    responses from Michigan State, period. 

               18      Q   If you were to design this e-mail over again, is it 

               19    fair to say you would do it differently, you wouldn't have 

               20    this exhortation to get students who felt that we must do 

               21    everything we can to insure victory?

               22      A   I would have to think about that, because the fact of 

               23    the matter is that you're trying to get students to take 

               24    very precious time to participate in research, so you're 

               25    challenged in terms of interesting them, but probably that 













                                                                           41

                1    particular phrase we may have left out, but you'll see 

                2    phrasing in some of the other e-mails that e-mail list 

                3    statements that simply said this is a crucial and important 

                4    case and it's their opportunity to make a contribution, and 

                5    we then go on to talk about the fact that we want the 

                6    broadest range and perspectives represented.

                7      Q   Were any e-mails sent out looking for students who 

                8    felt that the use of race should be discontinued in the use 

                9    of college and law school admissions?

               10      A   The general e-mail attracted students like that, along 

               11    with attracting students who were in favor.

               12      Q   But did something go out that actually was suggested 

               13    it was looking for those types of students?

               14      A   Yes.  That's while saying, the general e-mail was 

               15    looking for those students, that Michigan State -- you asked 

               16    about the law school; is that correct? 

               17      Q   Well, I was asking generally.

               18      A   Okay. 

               19      Q   Let's go to Exhibit 177.  Is there someplace in there 

               20    where it is suggested that students are being looked for 

               21    who have a view in which they believe that the use of race 

               22    should be discontinued in the use of college and law school 

               23    admissions?

               24      A   Several places. 

               25            First of all, we assure everyone that their 













                                                                           42

                1    expressed opinions will be treated confidentially.

                2      Q   Which is actually not true, is it, they are not 

                3    confidential, are they?

                4      A   I don't know the names of any of those students.

                5      Q   The names --

                6      A   That's the notion of confidentiality.  And are you 

                7    aware of names and identities of any of the comments? 

                8      Q   I was asking whether the opinions are going to be 

                9    held confidential.  The opinions are out there.

               10      A   Well, the opinions are out there before we do the 

               11    research, and they will be out there after we're done 

               12    with our research, but in terms of the promise of 

               13    confidentiality, what you're saying to a student is that 

               14    anything he or she says will not be associated with their 

               15    names.

               16      Q   With their names, okay.

               17      A   Right. 

               18      Q   If you could then show me where in Exhibit 177 there 

               19    is a request for students who view -- who believe that 

               20    affirmative action should be discontinued or erased.

               21      A   Just a second.  I'm trying to -- if you go to the 

               22    second page, which is page four, at the very bottom of the 

               23    fax, there is a paragraph.

               24      Q   I'm sorry, what page are we on?

               25      A   We're still under Tab 177, the second page, and the 













                                                                           43

                1    paragraph that begins:  "Please help us recruit 

                2                as many undergraduates as possible to 

                3                be participants in this study.  We need 

                4                students of every race and ethnicity, we 

                5                need slightly more women than men, and 

                6                we need students with a broad--" and 

                7                this is the passage that's important -- 

                8                "and we need students with a broad range 

                9                of perspectives and experiences, and 

               10                most of all, we're looking for students

               11                who are interested in advancing the 

               12                debate."

               13            So for my purposes, that clearly asks students 

               14    from all perspectives, and whether they support or oppose 

               15    affirmative action, to come forward, and indeed, if you look 

               16    through the transcripts, in one set of responses you see a 

               17    white male in the law school say that he opposes affirmative 

               18    action because he feels that it would make black students 

               19    feel inferior, and it was a very rich discussion that 

               20    ensued, because then the white female said, oh, is that 

               21    how you feel about your classmates?  And they had an 

               22    exchange, and it was very interesting and enlightening 

               23    to hear and experience. 

               24      Q   These e-mails were sent out by United for Equality 

               25    and Affirmative Action?













                                                                           44

                1      A   I think so.

                2      Q   Do they have a view on this subject, as far as you 

                3    know?

                4      A   I don't know the organization very well, but I'm sure 

                5    they do.  I think the designation is very clear. 

                6      Q   Now, who actually was -- who were the -- who was 

                7    responsible for actually the logistics of actually trying 

                8    to get these focus groups assembled?

                9      A   As I said, what we tried to purposely do was to 

               10    identify students, colleagues on the campus, and then to 

               11    allow them -- or not allow them, to ask their assistance in 

               12    distributing the appeals, and so beyond having a central 

               13    contact person or two on each of the campuses, I, for 

               14    reasons that we have just been discussing earlier, wanted 

               15    to stay out of the process of selecting students until 

               16    after which time I had a pool of students that I had not 

               17    assembled, and then from that pool we could select students, 

               18    and where the pool was large enough we actually selected 

               19    them randomly; that is, we numbered them and did a random 

               20    selection and assignment of the students from the pool of 

               21    African American students who expressed an interest. 

               22            So I'm simply saying on each of the campuses, we had 

               23    several contacts and I would have to pull the list of some 

               24    of the people that I used for that purpose. 

               25      Q   But your control, other than approving the -- you 













                                                                           45

                1    didn't exercise much control over the selection of the pool 

                2    other than exercising some approval over the text of some of 

                3    these messages; correct?

                4      A   That's correct.  And I can't say that anyone could 

                5    exercise that much control, because, you know, it was a 

                6    voluntary response.  You solicited individuals and then the 

                7    individuals volunteered to participate, and in some cases 

                8    students who had volunteered just could not -- we either 

                9    didn't select them into a focus group or they couldn't make 

               10    the assigned time and place.

               11            THE COURT:  If you had more time and resources, 

               12    somebody gave you a gigantic grant or something of that 

               13    nature, not necessarily in this case, but in another case 

               14    of something that you're studying and you wanted to do focus 

               15    groups, would you -- I have seen ads in newspapers and 

               16    things like that where it says, we're looking for people and 

               17    here's what we're going to be studying, something like that, 

               18    would that be a method that you would use, assuming that you 

               19    had, number one, a lot of resources and a lot of time?

               20            THE WITNESS:  Yes, Your Honor.  The hypothetical of 

               21    a lot of research resources and the large grant brought the 

               22    smile to my face.

               23            THE COURT:  I'm sure it would.  I'm sure if you had 

               24    a lot more time and a lot more money you would have done a 

               25    lot of different things.













                                                                           46

                1            THE WITNESS:  Yes, sir, I would have, but with the 

                2    resources that we had, we tried to be sure just for reasons 

                3    of self-protection to get as many students as possible, so 

                4    we used a variety of avenues for going into classes, but 

                5    most definitely, yes, to your question.

                6            THE COURT:  But that's how you would normally, if 

                7    you had all the resources and ideal kind of situation, you 

                8    would do similar -- as I have seen ads in newspapers and 

                9    journals?

               10            THE WITNESS:  Yes, sir, right.

               11            THE COURT:  And things like that?

               12            THE WITNESS:  Exactly.

               13    BY MR. KOLBO: 

               14      Q   Did you rely on help from the lawyers for Intervenors 

               15    in assembling any of the focus groups?

               16      A   No, not help from the lawyers, as such.

               17      Q   Ms. Massie, for example?

               18      A   No.  I basically would spend my considerable network 

               19    resources.  As you know, having been in the business for 

               20    a while, I have quite a few contacts and colleagues.

               21      Q   And then you were actually at Michigan for some of 

               22    these focus groups; correct?

               23      A   For all of the focus groups.

               24      Q   For all of them?

               25      A   Yes. 













                                                                           47

                1      Q   And who assisted you in sort of the logistics of 

                2    organizing those groups when you were there?

                3      A   I would have to look up the names of the students who 

                4    gave us a hand with the organization, but essentially the 

                5    process was as follows:  After we had a pool, then we would 

                6    reserve rooms and assign time slots and then our team worked 

                7    in each of those time slots with students who we contacted, 

                8    so in other words, I would have a list of students who 

                9    were in the pool, then I would solicit a set of research 

               10    assistants to call and schedule people, so that was the 

               11    process. 

               12            Does that answer your question? 

               13      Q   I think so. 

               14      A   Okay. 

               15      Q   And did you work at all at the actual focus groups 

               16    where any of the lawyers for the Intervenors were present?

               17      A   Oh, absolutely not.

               18      Q   Ms. Massie wasn't present for any?

               19      A   No, not for the focus groups.

               20      Q   I'm sorry, for the actual getting people in the 

               21    rooms together and so forth.

               22      A   No, that was -- no, no, no.  That's --

               23      Q   That would have been --

               24      A   Not acceptable.

               25      Q   That would not have been acceptable?













                                                                           48

                1      A   Absolutely not. 

                2      Q   You didn't, in selecting these students for these 

                3    focus groups, you didn't make any effort to ascertain who 

                4    was actually interested in applying to law school, did you?

                5      A   No, but in the course of our discussions and in the 

                6    data that came forward from the focus group interviews, 

                7    it turned out that there was a sizable representation of 

                8    students who were either interested in the law or interested 

                9    in going to law school.

               10      Q   That wasn't the qualification, one of the 

               11    qualifications?

               12      A   No, no, it wouldn't be, because that would defeat the 

               13    purpose. 

               14      Q   Now, I just want to talk about some of the things that 

               15    you did.  Again, I'll move on eventually here from these 

               16    focus groups and the methodology, but in the things that 

               17    you studied with respect to these focus groups, one of the 

               18    things you were looking at, I think your report uses the 

               19    term, to illustrate and elucidate some of the issues with 

               20    respect to academic performance and discrimination and so 

               21    forth; correct?

               22      A   Possibly.  Are you quoting from the report? 

               23      Q   Well, the words, illustrate and elucidate are there, 

               24    but it's not important if they are not, would you agree 

               25    that that's --













                                                                           49

                1      A   That would be a purpose. 

                2      Q   In trying to look at some issues with respect to 

                3    correlation between academic performance and racial climate, 

                4    discrimination, things like that?

                5      A   So if we're talking -- if we're talking about 

                6    correlations, then you're referring to the survey portion 

                7    of the report.

                8      Q   Well, I shouldn't use the word, correlations.  You're 

                9    looking to sort of eliminate in these focus groups those 

               10    connections; right?

               11      A   We were trying to understand them, yes.

               12      Q   Not to draw mathematical conclusions?

               13      A   Okay, correct. 

               14      Q   And you did not, as part of that process, actually 

               15    ask students to get transcripts for you; correct?

               16      A   No.  And I didn't for a specific reason, if you would 

               17    like for me to elaborate.

               18      Q   My understanding is that you believe that self-reports 

               19    of grades are accurate?

               20      A   I would be a bit stronger.  It's not my belief, the 

               21    literature has demonstrated conclusively that students are 

               22    pretty accurate in reporting their grades and this has been 

               23    demonstrated with scientific research of the probabilistic 

               24    sort for students who were asked to report grades and then 

               25    those grades were compared to transcripts.













                                                                           50

                1      Q   But in any event,  you didn't get those?

                2      A   No, I did not.

                3      Q   Either as part of the survey or as a part of the focus 

                4    group work?

                5      A   The actual transcripts? 

                6      Q   Right.

                7      A   No.

                8      Q   You don't have any information on how many of these 

                9    students at focus groups or in the surveys, how many of them 

               10    that might have taken the LSAT test, you didn't have any 

               11    testing data on that, did you?

               12      A   No, I didn't ask any questions about the LSAT test 

               13    scores for those students. 

               14      Q   Am I correct that between your focus group analysis 

               15    and your survey work, you concluded that all the students 

               16    were doing well academically across all racial lines?

               17      A   I concluded that the students were making reasonable 

               18    progress and doing well enough to graduate, yes. 

               19      Q   And basically --

               20      A   But you know, actually, there were variation in their 

               21    levels of performance.  Excuse me for interrupting.

               22      Q   But am I correct that your conclusion was that the 

               23    participants academically were basically the same across 

               24    racial lines and that the results, these were generally high 

               25    performing students, fair enough?













                                                                           51

                1      A   The second part I agree with, but not the first part, 

                2    no.  The students were not performing the same across racial 

                3    groups, but the students were high performing students, 

                4    for example, in terms of the -- in the cases of the law 

                5    students, in terms of the profiles that they had as 

                6    undergraduates, and in terms of the undergraduate students 

                7    in terms of their profiles as high schoolers, and 

                8    ultimately, as I have said a moment ago, the point was 

                9    that the students were performing at an acceptable and 

               10    reasonable level across the board. 

               11      Q   Could you go to page 34 of your deposition?  Do you 

               12    have it there?

               13      A   Yes, sir, I do.

               14      Q   Actually, it starts on page 33.  This is a question: 

               15                     "And my question is, and I'm sure 

               16                I have looked at it, it must be here 

               17                somewhere, but I'm trying to get a 

               18                general sense of your understanding 

               19                as to whether there were significant 

               20                differences between grade point 

               21                averages among the racial and gender 

               22                lines among these students at these 

               23                feeder institutions." 

               24                     Answer:  "What was striking as a 

               25                whole, the students that we interviewed 













                                                                           52

                1                were high performing students academically."

                2                     Question:  "Along all racial lines?"

                3                     Answer:  "Along all racial lines, 

                4                but there was some difference in terms 

                5                of their reported experiences in classes 

                6                and in terms of their experiences --

                7                in terms of their reported experiences 

                8                with respect to how they were perceived 

                9                and treated."

               10            Did I read that accurately?

               11      A   You did. 

               12      Q   Is that a true statement?

               13      A   It is, but once more, it has to be in that larger 

               14    context, because if you remember the questioning and answers 

               15    that continued over to page 35, for example, line seven, 

               16    where I talked about grades being negatively affected by 

               17    discrimination, and so in the context of what is a very 

               18    complex situation, that's a correct assessment. 

               19      Q   You didn't actually, as part of your work, you didn't 

               20    measure the extent to which there were differences in 

               21    grades, academic performance, among these students in 

               22    these focus groups or surveys; correct?

               23      A   I had done that work previously at the University of 

               24    Michigan and in a couple of instances actually making such 

               25    measures, measurements for the entire population of all 













                                                                           53

                1    students who were enrolled at the University.  I had used 

                2    the University's retention data set and done exactly those 

                3    correlations of race with the grade point average, so in 

                4    the focus groups, you know, we didn't do that, because for 

                5    one thing, as we have discussed, it would not have been 

                6    representative of the entire community, but more 

                7    importantly, I had that information from previous research 

                8    that used the entire collected data on all students who had 

                9    entered the University and been there for five years, as 

               10    well as data from probability-based surveys.

               11      Q   Okay.  Let me ask you about some of the survey work.  

               12    Surveys are the written materials, right, as opposed to the 

               13    focus groups, written survey questions?

               14      A   Yes, self-completed questionnaires, yes. 

               15      Q   And 200 out of all these, among these schools, among 

               16    these four schools?

               17      A   For this particular study, yes. 

               18      Q   And just to clarify myself on this, is that exclusive 

               19    of the law school, the 200 or so surveys?

               20      A   I would have to look at the numbers again, but the law 

               21    school -- yes, it is, it's exclusive of the law school.

               22      Q   And how many --

               23      A   We had about 40 surveys at the law school. 

               24      Q   Okay.  So let me ask you about the -- first of all, 

               25    the 200 or so undergraduate surveys, am I correct that you 













                                                                           54

                1    found -- well, first of all, this was predominantly, among 

                2    the surveys, like the focus groups, this is predominantly 

                3    minority students; correct?

                4      A   Yes.

                5      Q   I think I read somewhere that you have about 

                6    17 percent whites in the survey response?

                7      A   Right.  And for reasons that are -- became very clear, 

                8    and became very clear in, for example, the responses of 

                9    the white students, the white students said they had not 

               10    experienced racial harassment or racial discrimination 

               11    and this focus group study was a focused study of 

               12    experiences with race discrimination. 

               13      Q   Most of the students were A or B students, correct, 

               14    about 90 percent of them?

               15      A   I would have to look at the percentages.  Are you 

               16    referring to the survey?

               17      Q   I think this is around -- well, it may be in several 

               18    places.  I took my notes here and I am looking at page 49, 

               19    I think, of your report, where you have it in narrative 

               20    fashion.

               21      A   Page 49, you say? 

               22      Q   I can't guarantee that's where it is, but --

               23      A   I have tables under tab two which would include a 

               24    specific grade breakdown.

               25      Q   Actually, page --













                                                                           55

                1      A   Item five. 

                2      Q   And then page 50, actually, goes into this, as well.

                3      A   Okay, page 50.

                4      Q   And 47 percent of the respondents reported A averages, 

                5    46 percent B averages?

                6      A   I'm sorry, sir, on page 50?

                7      Q   Page 50, the second full paragraph.

                8      A   Yes. 

                9      Q   So that's confirms that these were pretty high 

               10    scoring, pretty well performing students by and large 

               11    in these focus groups; correct?

               12      A   This is true.

               13      Q   Doing well. 

               14            Most of them also indicated that they were well 

               15    prepared, or prepared at least, to enter college?

               16      A   That's correct.

               17      Q   And I think the number I counted was about 82 percent 

               18    answered very -- answered well prepared or prepared, that's 

               19    on page 50 and 51?

               20      A   60 percent answering well prepared and 22 percent 

               21    prepared, somewhat prepared, yes. 

               22      Q   A third of the parents of these students had a 

               23    father with a graduate or professional degree; correct?

               24      A   Right, but -- yes, this is true, but as you know, 

               25    this is the group as a whole, including the white students.













                                                                           56

                1      Q   Most of the group is minority; true?

                2      A   Yes, that's true. 

                3      Q   And 25 percent of the mothers of these students had 

                4    graduate or professional degrees?

                5      A   And as you pointed out, 17 percent of the sample is 

                6    white, so that's why I made the point.  So we're talking 

                7    about an additional eight percent, if indeed it turns out 

                8    the case that the white students were the ones who were 

                9    the 17 percent who -- the 17 percent of white students had 

               10    mothers with graduate degrees. 

               11      Q   Well, do you report that data broken down by race 

               12    at all?

               13      A   No, not here I don't. 

               14      Q   How about, did you find out -- we're talking about 

               15    graduate professional degree, correct, that's beyond four 

               16    years of college?

               17      A   It's a college graduate, yes, with an advanced degree. 

               18      Q   Well, I think of a graduate degree, is that -- do you 

               19    mean by that a four-year college or is that something past?

               20      A   It's past.  It's past the BA and then, as you said, a 

               21    Masters degree, professional degree, a Doctorate. 

               22      Q   Did you ascertain how many of these students had 

               23    parents, one or more parents, that had a four-year degree?

               24      A   I think we do have that here.

               25      Q   I guess I didn't see it, so.













                                                                           57

                1      A   Let me look. 

                2      Q   Well, if it's here, it's here, right?

                3      A   It would be in the tables for sure.  I'm pretty sure I 

                4    have it.

                5      Q   Well, if you could find it quickly, I just --

                6      A   Parent education.  If you'll give me a moment, I'll 

                7    dig it out. 

                8      Q   Sure.

                9      A   You know, actually, I correct myself.  I'm looking at 

               10    the questionnaire, and what we asked the students about was 

               11    their own -- no, we do have it, just a second. 

               12            Question six in the questionnaire, in the survey, 

               13    asks about parents' education, so I will have to find the 

               14    equivalent table. 

               15            Table 15 under Tab 2 is father's education and 

               16    Table 16 is mother's education.

               17      Q   Yes, I see that.

               18      A   And so I can answer that question separately for 

               19    mothers and fathers in terms of graduate professional 

               20    degrees.  For fathers we're talking about a third of 

               21    the sample and for mothers we're talking about a quarter 

               22    of the sample, so 33 percent and 25 percent.

               23      Q   That's for graduate or professional degree; correct?

               24      A   Yes, that's what you were asking me, is that correct?

               25      Q   Right.  And then there are -- we have already gone 













                                                                           58

                1    over that data. 

                2            And having a BA or a BS?

                3      A   Yes, in terms of a BA, solely a BA, 14.5 percent 

                4    of fathers and only a BA, 21 percent of mothers.

                5      Q   All right.  And then there are additional numbers who 

                6    have some college; correct?

                7      A   Correct.

                8      Q   Okay.  And again, you just -- that's not broken down 

                9    by race, we just don't have that?

               10      A   No, not here.  Except, once more, that's research -- 

               11    those kinds of comparisons by race of parents' education, 

               12    I have done extensively in the 80, 85 or so papers that I 

               13    have published and so those were questions that have been 

               14    answered and they have been answered generally, that is, 

               15    on a national level, and then answered previously for the 

               16    University of Michigan from the other analysis I have done. 

               17            I mean, the bottom line is that you see these 

               18    dramatic differences by race in terms of parents' education 

               19    with black and students of color being disadvantaged.

               20      Q   Just not shown here for these focus groups or surveys?

               21      A   I didn't do that analysis for the focus groups for the 

               22    simple fact that, as I said, it's a point I demonstrated 

               23    with earlier research. 

               24      Q   And I hesitate to mention it, because I didn't write 

               25    down the page number, but am I correct that you found that 













                                                                           59

                1    two-thirds of the students in these 200 member focus -- 

                2    200 member surveys, two-thirds of them reported that they 

                3    had A averages in high school, probably around --

                4      A   You found that where?  Where was it?   I'm sorry.

                5      Q   Well, I'm not sure.  I think it's page 51 or 2.

                6      A   Okay, 51 or 52. 

                7      Q   A substantial number of them reported high performance 

                8    in high school, is that your recollection, at least, or do 

                9    you want to look?

               10      A   It is my recollection.  Just if you needed me to 

               11    attest to the percentage, I needed to look it up. 

               12      Q   Okay.  So you're satisfied that that's -- let's 

               13    just --

               14      A   Generally it's true, yes, but if you want me to 

               15    look up the percentage, the exact percentage, I can do so.

               16      Q   We will just -- if it's there, it's there.  If it's 

               17    not, it's not.  We will leave it there.

               18            Let me ask you about some of the law school survey 

               19    work that was done.  Am I correct that you found the 

               20    prospective -- there's only 31 of these respondents, 

               21    correct, first of all?

               22      A   Yes, that's correct. 

               23      Q   You found that grades were comparable across races and 

               24    that they were acceptable levels, with only three reporting 

               25    something less than a B average?













                                                                           60

                1      A   Yes, sir, that's correct. 

                2      Q   And most of the students felt extremely well prepared 

                3    for law school, about two-thirds of them?

                4      A   Correct again, yes. 

                5      Q   By and large, these students in the -- among the 

                6    31 students at the law school reported that their college 

                7    grades had been high; true?

                8      A   Yes, sir. 

                9      Q   And can you remind me, what was -- the 31 law schools 

               10    respondents, were they predominantly minority students?

               11      A   Once again, we had one focus group that was white 

               12    students, so they were predominantly students of color and 

               13    predominantly female, actually, because those were the two 

               14    categories of focus in terms of questions about racial 

               15    climate and gender climate.

               16      Q   Let me ask you, I'm going to change subject now a 

               17    little bit her.

               18            Do I fairly understand that your opinion is that 

               19    racism, race discrimination, is something that is pervasive 

               20    in this country?

               21      A   Oh, absolutely, yes. 

               22      Q   And you have focused on these feeder group 

               23    institutions and the law school itself and you have found 

               24    persistent patterns of racial hostility, racially hostile 

               25    climate; correct?













                                                                           61

                1      A   That's correct. 

                2      Q   You have found evidence from these studies, from these 

                3    survey respondents, of patterns of discrimination and racism 

                4    on these campuses, that's your finding?

                5      A   That's my finding and it matches up with the research 

                6    that others have done, as well as my previous research. 

                7      Q   And is it fair to understand your opinion to be 

                8    that these feeder institutions and the law school are not 

                9    atypical for primarily white college universities and law 

               10    schools around the country?

               11      A   That's a safe assumption, yes, sir.

               12      Q   Okay.  So this is a problem that's pervasive 

               13    around the country, other colleges and universities?

               14      A   It's a problem that's pervasive, but it is a problem 

               15    that varies in its intensity, depending on characteristics 

               16    and traits of a campus; for example, the history of a 

               17    campus, history of race relations on the campus, the sorts 

               18    of policy issues or debates that are under way on a campus, 

               19    for instance, on a campus where affirmative action is being 

               20    hotly debated, then often those kinds of patterns will be 

               21    exacerbated.

               22      Q   Okay.  And patterns of discrimination, racism, are not 

               23    limited to colleges or universities, either, correct, in 

               24    your opinion?

               25      A   Well, no, unfortunately, they are part of our society 













                                                                           62

                1    as a whole and as such you see those problems from the 

                2    larger society being reflected on the campuses.

                3      Q   I mean, it's fair to say to understand your opinion 

                4    to be that we have an existing climate in this country of 

                5    societal discrimination against minority students, fair 

                6    enough?

                7      A   A climate that -- I have trouble answering that 

                8    question yes or no, and if you'll allow me.  I mean, we 

                9    do have discrimination in the country.  It varies in terms 

               10    of its force and shape and the targets depending on the 

               11    particular regions, and it also varied over time. 

               12            So if you talk about California and discrimination 

               13    right around Prop 209, then you have a different kind of 

               14    picture than, say, California and whichever group you're 

               15    focusing on pre209.

               16      Q   And I understand there may be variations and you 

               17    may --

               18      A   Yes.

               19      Q   -- believe there are variations, but you believe it's 

               20    a national phenomenon, correct, in society?

               21      A   Okay.  I believe, and those beliefs are validated by 

               22    empirical research --

               23      Q   Okay.

               24      A   -- of an extensive body, that yes, the country 

               25    continues to engage in racial discrimination, that 













                                                                           63

                1    continues to be a problem for us, and again in terms of 

                2    gender discrimination, as well.

                3      Q   Our country has a history of societal discrimination 

                4    against minorities?

                5      A   Absolutely.

                6      Q   And there are continuing effects of that societal 

                7    discrimination?

                8      A   Correct.

                9      Q   And some of the continuing effects of that 

               10    discrimination relate to the academic performance of 

               11    minorities like African Americans, Hispanics, Native 

               12    Americans at America's colleges and universities; true?

               13      A   This is very true and it's based on just a cumulative 

               14    disadvantage that I have documented from K through twelve 

               15    education that then translate into different levels, 

               16    for example, of educational preparation, educational 

               17    opportunity, and then translating into differences in 

               18    terms of representation for the different ethnic groups 

               19    in higher education. 

               20      Q   And is it fair to understand you believe that race 

               21    ought to be considered in the admissions process at 

               22    colleges and universities in order to help respond to 

               23    these continuing ongoing events of societal national 

               24    discrimination against minorities, true enough?

               25      A   I think as an educator you cannot make decisions 













                                                                           64

                1    about students and educating and admitting students into an 

                2    institution of higher learning without looking at the whole 

                3    person, and race is a sizable and in many instances just 

                4    definitive component of a person's experiences and 

                5    opportunities.

                6      Q   And one of the reasons we should do that, as I 

                7    understand your opinion, is that we must respond to these 

                8    ongoing effects of societal national discrimination against 

                9    minorities; fair?

               10      A   One of the reasons is that we do need to respond to 

               11    and make and take account of systematic patterns of racial 

               12    discrimination.  Further, I think we have to prepare 

               13    ourselves, our students, our work force, for a reality 

               14    of a racially and culturally diverse world and society.

               15      Q   And those are reasons that, in your opinion -- and 

               16    you're an educator, right?

               17      A   Yes, I am.

               18      Q   Those are reasons that, in your opinion, we all 

               19    have to be able to use race as a factor in admissions 

               20    decision making at colleges, universities and law schools; 

               21    true?

               22      A   I think that when we are making decisions about 

               23    admitting students, we have to look at the whole student 

               24    and a student's racial identity is part of that whole.  

               25    So absolutely, yes, it's -- and I would just say, as an 













                                                                           65

                1    educator and researcher, it's just about impossible to 

                2    look at a student apart from their racial experiences, their 

                3    race, because race structuralizes in this society in very 

                4    definitive and very clear ways. 

                5            You look at a city like Detroit, you see that the 

                6    city is residentially segregated.  You look at one of those 

                7    pockets, you see it systematically continues in terms of 

                8    educational opportunity, and so all of that ties together, 

                9    so it's not merely skin color, per se, but it's what skin 

               10    color determines about life experiences and opportunities in 

               11    our society. 

               12      Q   Okay.  And so housing segregation, for example, in 

               13    Detroit, is a reason that ought to be considered as a 

               14    justification for considering race in the admissions 

               15    process at a law school or undergraduate school, true?

               16      A   Housing discrimination in Detroit, in Minneapolis, 

               17    first of all, sets the catchment area for the schools that 

               18    you attend.  It also determines the resources that are 

               19    available in the schools that you attend.  So it sets you 

               20    on a trajectory either to higher educational accomplishment 

               21    and achievement or to lower educational accomplishment and 

               22    achievement, and unfortunately, those kinds of forces are 

               23    bigger than individuals, and so the most motivated, the most 

               24    innately talented young kid cannot learn algebra if algebra 

               25    class is not available in her school, and unfortunately, 













                                                                           66

                1    what we see is that algebra and other subject areas are 

                2    differently available in schools coded by race; that is, 

                3    the schools that are coded by race tend to be poor and they 

                4    tend to have fewer offerings, and so, thus the point I'm 

                5    trying to make. 

                6      Q   And just so I understand, your opinion is that those 

                7    kind of social demographic factors are the kinds of reasons 

                8    we have to -- that we should use to justify using race as 

                9    one factor in the admissions process at colleges and 

               10    universities, law schools, true?

               11      A   Yes, and the sociodemographic factors as related 

               12    to the educational institutions and the educational 

               13    opportunity structure that they shape. 

               14            So it's more about educational opportunity, but it's 

               15    educational opportunity that is differentially experienced 

               16    and available based on race and based on racial segregation 

               17    in this society and systematic deprivation by race. 

               18      Q   I want to talk about the phenomenon of poor 

               19    performance, poor academics, poor grades in the college 

               20    or law school.

               21            You're an educator.  You have been an educator for 

               22    how long?

               23      A   I have been an educator for 26, 27 years. 

               24      Q   Would you agree with me that there are a lot of 

               25    reasons why students, any particular student or any group of 













                                                                           67

                1    students, might be suffering from poor academic performance, 

                2    a lot of reasons out there for that?

                3      A   I would accept that general principle, yes. 

                4      Q   There are a lot of reasons that would explain why a 

                5    white student might have poor grades; correct?

                6      A   There are reasons that would explain why a white 

                7    student might have poor grades, but one of those reasons 

                8    would not be racial discrimination.

                9      Q   But there is a lot of --

               10      A   Because this society is a society that has been 

               11    dominated by whites and has been structured in ways that 

               12    privileges whites and so racial discrimination against 

               13    whites in this society, I have trouble buying.

               14      Q   But there is a lot of reasons that have nothing to do 

               15    with race that can cause a person to perform poorly on their 

               16    grades and test scores; true?

               17      A   See, that's the interesting thing about how race 

               18    affects educational performance in this society, because in 

               19    fact, as I tried to point out, educational performance at 

               20    the college level, let's say, is a function of cumulative 

               21    either educational advantages or disadvantages, and so if 

               22    the original situation was created by racial segregation, 

               23    then by the time you get, say, to an SAT test, you could 

               24    in theory say that, well, this student's performance, low 

               25    performance on, say, the mathematical part of the SAT, is 













                                                                           68

                1    because he doesn't know math, but that rips the person from 

                2    his experience and rips the person from an experience that 

                3    was dictated, structured, required by racial identity and 

                4    that put him in schools that set him on an educational track 

                5    that insured that he wouldn't know algebra, because it would 

                6    not be available to him. 

                7            And so that's why I'm hesitant to accept an 

                8    assertion that they are just random causes, because in fact, 

                9    the causes of low educational performance of Chicano-Latino 

               10    students are not at all random.  They are very systematic. 

               11            There is very systematic deprivation in terms of 

               12    preschool educational-related experiences, systematic 

               13    deprivation in terms of the elementary years and 

               14    opportunities to learn, and systematic deprivation in 

               15    terms of high school, so at the end of the process, the 

               16    predictable has happened, that kid is not as well prepared, 

               17    is not as able to compete with his white peers who were set 

               18    on a course where those resources were available and where 

               19    the opportunities were there and present in their schools.

               20            THE COURT:  Define systematic for me.

               21            THE WITNESS:  Systematic is just a kind of patterned 

               22    effect, if you will, so just following a young person 

               23    through school.  A poor youngster and many youngsters of 

               24    color who are disproportionately poor, who does not have the 

               25    advantage of educated parents to prepare him or her in those 













                                                                           69

                1    earliest years just for readiness to learn, if you will, 

                2    so in those early years, in the preschool years, whether the 

                3    parents could afford to put that kid in a quality preschool, 

                4    then in terms of the K through twelve years, the quality of 

                5    schools that those youngsters have available to them. 

                6            And we educated parents and the parents who are of 

                7    middle class work very hard to get their kids into certain 

                8    schools, and that's because we understand that high quality 

                9    schools will produce kids who are better educated and who 

               10    are better equipped to compete, and once you get into the 

               11    high school years, those differences become even more 

               12    pronounced. 

               13            The research I have been doing in California shows 

               14    that the availability of advanced placement classes --

               15            THE COURT:  I understand.  So if you don't start at 

               16    the bottom, you can't --

               17            THE WITNESS: Exactly.

               18            THE COURT:  You used the word, systematic, so that's 

               19    what you mean by systematic?

               20            THE WITNESS:  Yes, sir.  Sort of a pattern, 

               21    repeating structure --

               22            THE COURT:  I see.

               23            THE WITNESS:  -- of just deprivation, deprivation 

               24    in the earliest years, all the way through to deprived or 

               25    blocked opportunity into high school and college.













                                                                           70

                1    BY MR. KOLBO: 

                2      Q   Let's just accept, at least for point of argument, 

                3    that race is a factor that can explain academic performance 

                4    in some cases.  Let's just put that aside for a minute, for 

                5    the moment, but my question actually was, isn't it true, 

                6    Dr. Allen, as an educator, you know that there are a lot of 

                7    reasons that can explain poor academic performance that have 

                8    nothing to do with race?

                9      A   There are some reasons that have nothing to do with 

               10    race.

               11      Q   And there are a lot of reasons why a white student or 

               12    an Asian American student might do poorly in school that 

               13    have nothing to do with his or her race; true?

               14      A   That's hypothetically true, yes. 

               15      Q   Well, you accept that, don't you?  I mean, you accept 

               16    that proposition?

               17      A   Well, no, actually, I don't, and that's why we went 

               18    to the next stage of the research.  That's exactly the 

               19    quandary that we had, to tell you the truth.  We had these 

               20    correlations, but we didn't have a clarity of what was going 

               21    on in terms of the underlying dynamic, and so when you moved 

               22    to the next level and began to talk to students in the 

               23    different categories, talk to Asian American students, 

               24    talk to black students, talk to white students about their 

               25    specific educational experiences and with force of the 













                                                                           71

                1    educational outcomes that you observe, then clarity emerges, 

                2    because the students have started talking about differences 

                3    in terms of their opportunities to learn in the early years, 

                4    for example, or differences in terms of how their teachers 

                5    respond to them, stereotype them, and are prepared to either 

                6    foster or block their education. 

                7      Q   A white student might do poorly in school in part 

                8    because of a disadvantaged upbringing, true?

                9      A   This is probably true, yes.

               10      Q   Because he comes from a poor family, true?

               11      A   A white student who, for example, comes through an 

               12    urban inner city school system, yes, would be deprived 

               13    systematically in the same ways that his black classmates 

               14    are deprived, but when we look at the distribution of 

               15    residence and schooling we find that the composition 

               16    overwhelmingly of those inner city schools tends to be 

               17    students of color. 

               18      Q   And a white student might do poorly for simply not 

               19    applying himself or herself well?

               20      A   That's possible. 

               21      Q   And that could be a reason that might explain why a 

               22    black student or a Hispanic student does poorly in school, 

               23    as well?

               24      A   I think I accept those hypotheticals for individuals, 

               25    but the lesson that we have learned as sociologists is that 













                                                                           72

                1    when you begin to see group processes and group patterns, 

                2    then it's no longer sort of random individual explanations, 

                3    and in fact, that again takes us back to systematic pattern. 

                4            You see patterns for groups that are different and 

                5    so needless to say statistically you will see individual 

                6    variation, will see some individuals within a population who 

                7    are less motivated than others, you'll see some that work 

                8    harder, you'll see some who are better prepared, but when 

                9    you start seeing a group pattern where, for example, black 

               10    students consistently do more poorly than white students, 

               11    then you're actually left with fairly simple conclusions. 

               12            You can either conclude that that entire group of 

               13    people is somehow deficit, and for obvious reasons I'm not 

               14    accepting, for obvious or not so obvious reasons, I'm not 

               15    accepting of such an assertion, or you can look for some 

               16    larger patterns, some larger forces and some larger 

               17    relationships that are producing those group differences. 

               18      Q   There are certainly many African American and Hispanic 

               19    students who do very well academically; true?

               20      A   Some of the students we talked with do well 

               21    academically.

               22      Q   Into high school?

               23      A   And they do so at great cost, yes, they do well.

               24      Q   They do well in high school, they do well in college?

               25      A   Yes, some of those students do, yes.













                                                                           73

                1      Q   Some of them do well in law school?

                2      A   Absolutely.  And I'm engaged in a study that exactly 

                3    shows that kind of successful student, and when you look at 

                4    these successful students, you find that the explanations 

                5    are quite clear.  There are students who had opportunities 

                6    to learn, these are students who had parents who were of 

                7    high status.  These are students who found educational 

                8    environments that were supportive and that did not 

                9    stereotype them and then behave based on that negative 

               10    stereotype to produce the self-fulfilling prophesies that 

               11    they were not good students.

               12      Q   You've suggested many times that minority students 

               13    have certain stresses that white students don't have due 

               14    to racism and discrimination; true?

               15      A   Yes, and they share some stresses, as well. 

               16      Q   Am I correct, in your report you suggest that the 

               17    greatest stresses for white students are personal such as 

               18    the difficulty in getting a date.  Do you really believe 

               19    that or is that sort of, I mean, is that sort of tongue in 

               20    cheek?

               21      A   Do I believe that a social life is a stress  --

               22      Q   One of the --

               23      A   -- for college students, yes, I do.

               24      Q   Do you believe that the greatest stresses that white 

               25    students face in general, that the greatest stresses that 













                                                                           74

                1    white students face academically are personal, and an 

                2    example is like getting a date?  I mean, isn't that a 

                3    little --

                4      A   For some students that could be quite a challenge. 

                5      Q   I can testify to that, but is it fair to generalize, 

                6    is it fair to generalize and suggest that that sort of 

                7    exemplifies the greatest problems that white students have?

                8      A   I think you're probably --

                9      Q   That's not fair, is it?

               10      A   -- referring to a series of things.  It's fair to a 

               11    particular individual who does have those kind of problems.  

               12    It was more the larger point, and there we used a couple of 

               13    examples, didn't we?  Are there other examples there besides 

               14    the date?

               15      Q   That's the only one I see there.

               16      A   Well, normally in my work you'll find several 

               17    examples, but the larger point is that the kinds of problems 

               18    that confront, say, Chicano-Latino students and white 

               19    students at Michigan are fundamentally different. 

               20            I mean, they will share the general problems that 

               21    students face, I mean, learning how to organize your time, 

               22    having to work, having to take care of school work, having 

               23    to find yourself a date, all of that is a general part of 

               24    college life, but the overlayer, the extra special burden 

               25    that the Chicano-Latino student faces comes in the form 













                                                                           75

                1    of -- in the form of, as I talked about, harassment by 

                2    police; that is, police officers who literally will pull 

                3    them over and treat them as if they don't belong on the 

                4    campus or stereotypic assumptions about them before a 

                5    teacher knows anything about their background, just 

                6    presuming that they are not academically qualified, or 

                7    spurious slurs by some of their classmates. 

                8            I mean, many of those racial slurs that those 

                9    students report are not slurs that the white students 

               10    reported, and indeed, we asked a specific question of 

               11    all students, and white students said, no, they had not 

               12    experienced racial discrimination.

               13      Q   But it's not, you would agree with me, it's not fair 

               14    to generalize and suggest that for most whites and/or all 

               15    whites the only real problems that they face in academic 

               16    performance are sort of trivial personal reasons like 

               17    getting a date, that's just not a fair statement, is it?

               18      A   I think the statement was intended more to say that 

               19    there are levels of intensity of the problems that are faced 

               20    by students and so the generalization that you're pointing 

               21    to is, I think, a common challenge to students, but beyond 

               22    that students of color have these additional burdens that 

               23    come solely as a result of racial hostility in the climate 

               24    where they are trying to complete their education, just like 

               25    the white students are trying to complete their educations.













                                                                           76

                1      Q   Isn't it fair to say that one of the problems in this 

                2    country with respect to race and other issues, as well, is 

                3    that there is a problem that people tend to generalize too 

                4    much and try to project a characteristic or a situation with 

                5    respect to -- onto a particular race or gender or group?

                6      A   I think the problem about tending to generalize is 

                7    understating.  The problem is about, for instance, using 

                8    racist stereotyping, for example, or misogynistic 

                9    stereotyping of females, and then people using their 

               10    power to act out those, to act on those stereotypes. 

               11            So beginning with a negative perception or 

               12    stereotype of a group, and then using one's power and 

               13    privileged status to strike out at, to undercut, to 

               14    negatively influence and affect the outcomes and experiences 

               15    of those people, so for me it's larger than generalizing, 

               16    because quite frankly, as humans, we always use categories. 

               17            That's the only way we can deal with this world.  

               18    It's very complicated, it's very complex, so we use 

               19    categories, but it becomes problematic when we attach those 

               20    negative designations to an entire people, for example, 

               21    or to an entire gender, so it's not that you know the 

               22    difference between men and women, if you don't know the 

               23    difference between men and women by the time you get to 

               24    college it's a problem, so that kind of generalization is 

               25    part and parcel of just human development and of being an 













                                                                           77

                1    educated person, but I'm just simply saying that what 

                2    becomes problematic is negative stereotyping by race or 

                3    negative stereotyping by ethnic group.

                4      Q   Well, negative stereotyping by race isn't bad just 

                5    because it's negative, it's bad because it's wrong, right, 

                6    it's inaccurate?

                7      A   It's bad because of all of those things and it's bad 

                8    further because of the fact that in too many instances 

                9    the individuals with the power will take those negative 

               10    stereotypes and penalize and not give the groups stereotyped 

               11    an opportunity or a chance and penalize them for the mere 

               12    fact of their physical appearance.

               13      Q   It's a negative stereotype to think that most African 

               14    Americans are underachievers academically, true, that's a 

               15    negative stereotype?

               16      A   It's a negative racial stereotype to make that 

               17    assumption, yes.

               18      Q   And it's a false stereotype, true?

               19      A   It depends on the measures of achievement that you 

               20    use, needless to say.  If you use, say, standardized tests, 

               21    then there is a documented difference in terms of levels of 

               22    performance by race, but it would become a problematic 

               23    stereotyping if you assumed that all black students would 

               24    underperform on the SAT, and it becomes problematic if you 

               25    don't move to that next level of analysis which allows you 













                                                                           78

                1    to understand some of the factors I have been talking about 

                2    that predict those differences in test score performance, 

                3    because it's all predicated upon differences in educational 

                4    opportunity and preparation because of racial 

                5    discrimination.

                6      Q   Isn't one of the reasons to have, as I understand it, 

                7    a racially diverse campus, is to sort of -- is to put an 

                8    end to inaccurate racial stereotypes that white students 

                9    might hold about black students?

               10      A   I think that's been one, one rationale offered.  Given 

               11    that we're a democracy and we define ourselves the way we 

               12    do as a society, for me an even more compelling rationale is 

               13    that rationale for equal opportunity.

               14      Q   It's just wrong to make general conclusions about a 

               15    whole group of people in terms of what their characteristics 

               16    are or experiences.  I mean, that's just -- one shouldn't do 

               17    that, that's a negative or at least that's an inaccurate 

               18    stereotype and that's one of the reasons that it's been 

               19    offered in support of racially diverse campuses; true?

               20      A   I'm not one who sort of has written a lot about a 

               21    rationale for racially diverse campuses, so I'll have to 

               22    accept your premise.

               23      Q   It's not fair, is it, Dr. Allen, for someone to 

               24    conclude that all white students are privileged, that's 

               25    not a fair stereotype, is it?













                                                                           79

                1      A   It's fair to talk about, and it's actually prudent and 

                2    reasonable to talk about group differences, because we keep 

                3    moving back and forth between individuals and groups, and 

                4    when I started talking about those systematic patterns, 

                5    that's about group privileges, it's not about individuals, 

                6    per se, but it's about the groups and their relative 

                7    positions.

                8            And in society, decidedly, there is no question 

                9    that whites are privileged relative to nonwhites and that 

               10    privilege plays out in all aspects of life and all the 

               11    arenas of life.  If you look at any arena of this society 

               12    and look at what matters in terms of occupation, in terms of 

               13    housing, in terms of health, in terms of education, you see 

               14    systematic patterns of white advantage and systematic 

               15    patterns of disadvantage for people of color.

               16            And so it becomes a little bit confusing to try and 

               17    selectively talk about individuals when in fact these group 

               18    patterns are quite clear and quite distinctive and tell us 

               19    how this society has functioned historically and how it 

               20    functions today. 

               21      Q   You would agree with me that not all white students 

               22    are privileged?

               23      A   Of course not all white students are privileged.

               24      Q   And some black students are more privileged than other 

               25    white students?













                                                                           80

                1      A   And we have to talk about all the bases of privilege, 

                2    but depending on how you define privilege, that may be a 

                3    correct assertion. 

                4      Q   You talked in your testimony yesterday about a Chicano 

                5    student whose B plus may not be the same as a white male's 

                6    because of the hardships that Chicano might have to overcome 

                7    because of his race; right?

                8      A   Correct. 

                9      Q   Okay.  Isn't it true that the B plus of a white 

               10    student who has got some demonstrated hardship, came from 

               11    a poor background, might represent more hard work and effort 

               12    than the B plus of a more privileged black or Hispanic 

               13    student, can that happen?

               14      A   If I read what the students are telling me in those 

               15    transcripts, in those surveys, that's not going to happen.

               16      Q   Never?

               17      A   Because in fact, what the students will -- well, I 

               18    would never say never -- oops, I just did -- but I tend not 

               19    to say never, because we're talking about general patterns, 

               20    but I'm simply saying that we can return to your comment 

               21    about probabilistic studies and probability. 

               22            When we're doing these types of assessments it's 

               23    best to think in terms of the general tendencies and the 

               24    more likely occurrences, so the more likely outcome is that 

               25    what you just described would not happen for reasons of 













                                                                           81

                1    the educational experiences that these students describe. 

                2            These students describe a situation that doesn't 

                3    make allowances for them or privilege them, but in fact, 

                4    penalizes them.  And so their B plus, absent that kind of 

                5    discrimination, would have been a much higher grade, you 

                6    can presume.

                7      Q   Are you familiar with the argument that one cannot 

                8    stop using race as a factor in admissions and substitute 

                9    instead socioeconomic status because there are just too many 

               10    poor, poor white students in this country because they 

               11    outnumber, absolutely, the numbers of minority students, 

               12    and there's just too many of them, and if one substituted 

               13    socioeconomics for race you simply wouldn't have enough 

               14    black students at colleges and law schools, are you familiar 

               15    with that theory?

               16      A   We're wrestling with issues of race and socioeconomic 

               17    status as potential bases for selection in California and 

               18    finding that, trying to go to a system of socioeconomic 

               19    based selection, if you will, just does not capture the 

               20    incredible disadvantage, the just deep damage of racial 

               21    discrimination on people of color, because it's a 

               22    multiplicative effect, if you will.  It's not only that 

               23    Chicanos and blacks are disproportionately poor, it's 

               24    also that the poor are not -- they are racially 

               25    discriminated against in this society, they have blocked 













                                                                           82

                1    opportunities. 

                2            If you look at the educational opportunities of 

                3    middle class black kids, you find that they don't begin to 

                4    compare with the educational opportunities of poor whites, 

                5    comparing the high schools in terms of course offerings and 

                6    curriculum, in terms of degrees of the teaching faculty, in 

                7    terms of the quality of life at the surrounding areas.  So 

                8    the point is that race is a powerful presence that doesn't 

                9    ignore or eliminate class, but in fact, complicates it and 

               10    complicates it exponentially.

               11      Q   But am I correct that one of the reasons why 

               12    socioeconomic advantages has been rejected, maybe not 

               13    the only one, but one of the reasons it's been rejected by 

               14    educators as a substitute for race is that there are just 

               15    too many poor white students and you would end up with not 

               16    enough Chicano students at colleges and black students at 

               17    colleges?

               18      A   No.  What I was trying to respond to you and say, it's 

               19    problematic because it does not capture the power of race to 

               20    shape educational opportunities in this society and to 

               21    change the educational opportunities, even well-to-do 

               22    blacks.

               23      Q   You didn't read Dr. Gary Orfield's testimony in 

               24    this case?

               25      A   No, I did not. 













                                                                           83

                1      Q   About that problem I just mentioned?

                2      A   No, I did not. 

                3      Q   So you don't agree with it?

                4      A   I don't agree with what I didn't read? 

                5      Q   We have been talking -- I'll represent that, if I 

                6    recall correctly, that Dr. Orfield has suggested that 

                7    socioeconomic advantage will not work as a substitute for 

                8    race in admissions because, again, of the demographics, 

                9    there are more white students.  I take it you disagree with 

               10    that, that's not a reason that that -- that's not the reason 

               11    that one should reject that alternative to race as a factor 

               12    in admissions?

               13      A   I would have to read Gary's argument.  I'm sure he 

               14    developed it more fully, and then I could tell you whether 

               15    I agree with it. 

               16      Q   You have testified that you gave an example of, I 

               17    think, an example of how discrimination affects minority 

               18    students, of a student or two who walked into a classroom 

               19    and the teacher basically, I think you said, palmed them 

               20    off or ignored them or something like that?

               21      A   I have several examples where students would come 

               22    into a room before the students -- before the teacher knew 

               23    anything about the student, the student would be told that 

               24    black students don't do very well in this class, and by the 

               25    way, that's from my survey data at the national level. 













                                                                           84

                1            In terms of the data from the Michigan study, 

                2    we have several examples of students trying to -- black 

                3    students, Chicano-Latino students trying to approach faculty 

                4    members, white faculty members with questions, and not 

                5    receiving the same response that their white classmates 

                6    received; that is, not being attended to, being, and I quote 

                7    from a student, being given get-out-of-my-face answers, and 

                8    this is from the student transcripts. 

                9      Q   You would agree that white students sometimes have 

               10    trouble dealing with faculty, that happens?

               11      A   Interestingly enough, when you look at the survey 

               12    data, they don't report as many problems as students of 

               13    color.  So I imagine, you know, some students, some white 

               14    students report problems, but they report such problems 

               15    usually at -- well, black students are three times more 

               16    likely to have had those kinds of problems, Chicano-Latinos 

               17    are three times more likely to have had those kinds of 

               18    problems with their predominantly white faculty.

               19      Q   You have reported unfair grading as being a phenomenon 

               20    that you think minor students feel?

               21      A   That's what the students report, yes, sir. 

               22      Q   You are certainly -- would you generally agree that 

               23    white students sometimes feel they have been unfairly graded 

               24    by their professors?

               25      A   Again, that's why we have to move beyond a simple 













                                                                           85

                1    individual assessment, so yeah, you could look at it and 

                2    look around and find individuals who felt that they were 

                3    unfairly graded, but when you look at a pattern of 

                4    responses, and this is why large-scale research is 

                5    persuasive, when you look at those larger surveys, you 

                6    find that white students are not as likely to report unfair 

                7    feelings that they were graded unfairly.  They are not as 

                8    likely to report that they feel like their faculty has 

                9    trouble relating to them or interacting with them.  They are 

               10    not as likely to report that they feel that their faculty 

               11    are hostile toward them. 

               12      Q   I want to ask you some questions, then, about your 

               13    testimony with respect to the University of Michigan 

               14    specifically, both Michigan undergraduate school and the 

               15    law school.  Am I correct in understanding that you have 

               16    formed a conclusion, the opinion, that the University of 

               17    Michigan campus at Ann Arbor is a racially hostile campus?

               18      A   I have formed the opinion that the students experience 

               19    racial hostility and experience -- that students of color 

               20    experience the campus as racially hostile, yes, sir. 

               21      Q   And you feel the same way about the law school at 

               22    Michigan?

               23      A   In terms of? 

               24      Q   It's a racially hostile campus?

               25      A   The students report that they have experienced that 













                                                                           86

                1    law school as racially hostile and females report that they 

                2    have experienced it as being hostile to them as women.

                3      Q   And the racial climate at the law school is even 

                4    worse than it is at the undergraduate school; true?

                5      A   I don't know that I would stay worse, in that sense.  

                6    What I talked about yesterday is that it is -- it is more 

                7    intense and more extreme in terms of the environmental 

                8    relationships, and that often has to do with the fact that, 

                9    as you know, the people in that law quad live together, they 

               10    go to school together, so they have more extended and more 

               11    extensive interactions.

               12      Q   When you're suggesting students have experiences that 

               13    are hostile, are you suggesting that the campus itself is a 

               14    hostile racial climate at the law school?

               15      A   Yes, as I talked about it yesterday, that campus 

               16    is a reflection of institutional practices and human 

               17    relationships and also of history.

               18      Q   And both of these campuses at the undergraduate school 

               19    and the law school, they are hostile notwithstanding the 

               20    level of racial diversity that they have today; true?

               21      A   They are less hostile, this is true, they are less 

               22    hostile than they were historically, and less hostile for 

               23    the simple reason that they do have more racial diversity. 

               24            Because, for example, when you look at the 

               25    historical research, you see that the University of Michigan 













                                                                           87

                1    in its earliest years, not its earliest years, within my 

                2    lifetime, at one point did not allow University of Michigan 

                3    students who were black to live on that campus.

                4      Q   That was a bad policy?

                5      A   That was a -- putting it very mildly, yes. 

                6      Q   They don't have policies like that anymore, do they?

                7      A   Interestingly enough, that policy was not a written 

                8    and stated policy, it was a practice. 

                9      Q   It was bad, though?

               10      A   And so there are still exclusionary processes that 

               11    operate on the campus, and yes, they are bad. 

               12      Q   And are you aware of any official or exclusionary 

               13    policies today at the University of Michigan, the law school 

               14    or the undergraduate school, with respect to race?

               15      A   I'm not aware of any official or exclusionary 

               16    practices that are planned or intended as such, but I know 

               17    that there are mechanisms that exclude by race, so for 

               18    example, to the extent that one relies disproportionately 

               19    on the LSAT, knowing that there are racial discrepancies 

               20    in performance on the LSAT, then that particular, seemingly 

               21    objective and unracially biased decision-making process 

               22    becomes quite biased in its effect.

               23      Q   You mentioned, I think, a number of specific things 

               24    that you thought were problematic, I think, at the 

               25    undergraduate school, primarily.  Let me just see if I 













                                                                           88

                1    have got these right. 

                2            That black access, because of certain college -- 

                3    because of certain entrance requirements, that it might 

                4    disadvantage black students because of their K through 

                5    twelve upbringing, K through twelve education?

                6      A   Are you referring to the --

                7      Q   No, your testimony.  I have no --

                8      A   Yes, sir.

                9      Q   Is that true?

               10      A   Could you repeat the question?

               11      Q   Sure. 

               12            It's my understanding one of the problems you think 

               13    at the Michigan undergraduate school is that there are -- 

               14    some of the entrance requirements are difficult in terms 

               15    of what they expect in terms of K through twelve level 

               16    education that disadvantages black students; is that one 

               17    of the problems?

               18      A   That is a position I have adopted, have sort of 

               19    adopted and stood by in my testimony and it has to do with 

               20    the patterns of educational deprivation that prevent black 

               21    students from securing expected levels of preparation and 

               22    then uses something that was beyond their power and control 

               23    against them and blocks them further in terms of educational 

               24    opportunities; that is, access to University of Michigan.

               25      Q   And one remedy for that would be to look at those 













                                                                           89

                1    requirements and see if they can't be changed so that they 

                2    don't discrimination?

                3      A   Interestingly enough, we're doing exactly that in the 

                4    University of California system, and we have just completed 

                5    a system-wide UC admission conference where we're looking at 

                6    those admissions criteria and trying to understand the ways 

                7    in which they systematically discriminate against youngsters 

                8    who, given the opportunity, could do the work, and could 

                9    benefit from a rich experience in a prestigious university.

               10      Q   One of the problems you mentioned, also, was that some 

               11    black groups have trouble getting funding because of their 

               12    small size?

               13      A   Yes, sir.

               14      Q   That could be remedied by simply making changes with 

               15    respect to the size the groups needs to be to get funding, 

               16    true?

               17      A   That's one adjustment.  The other adjustment is by 

               18    increasing the numbers of students in that category; that 

               19    is, increasing the racial diversity of the school. 

               20      Q   There is more than one way --

               21      A   Which is what I would prefer.

               22      Q   There is more than one way to solve that problem, 

               23    true?

               24      A   Yes, there is, and some of those ways are quite 

               25    negative, because needless to say, before there were black 













                                                                           90

                1    students in the pre-med program at University of Michigan, 

                2    it wasn't a problem. 

                3      Q   You mentioned that there is a problem with police 

                4    discrimination, official police discrimination at the 

                5    campus?

                6      A   Yes.

                7      Q   Is that something that you think that the University 

                8    ought to do something to correct?

                9      A   I think the University has taken some actions to 

               10    correct some of the problems, but there is still quite a 

               11    ways to go, and certainly the answer to your question is 

               12    yes, because those police are under the control of the 

               13    University, they are Ann Arbor Campus Police. 

               14      Q   Let me ask you about some of the things at the law 

               15    school, as I understand. 

               16            Some of this may be from your report, and if I -- 

               17    if it's from there, I'll reference it. 

               18            Am I correct that there are students at the law 

               19    school who believe in the current environment that they 

               20    are looked upon as a representative of their race?

               21      A   That was a consistent theme coming through from the 

               22    students, because they were so few in number they felt 

               23    this burden as the only black person or the only Chinese 

               24    person in the room, so anything they said was taken as a 

               25    representation of the race and then they would go on and 













                                                                           91

                1    talk about just the nature of the stereotyping that they 

                2    experienced; that is, they felt the pressure, not only 

                3    because they were, quote, unquote, the representative, 

                4    but because there was this extreme pressure where people 

                5    were looking at them to either see them validate the 

                6    preestablished negative stereotypes about the race or just 

                7    to see them stumble, and so that's where they felt that 

                8    pressure.

                9      Q   This is happening at the given current levels of 

               10    diversity at the law school, true?

               11      A   Yes, they were talking about it happening in the 

               12    current situation, but they pointed out that often in their 

               13    sections there was not diversity, they were the only person 

               14    in the section, so in other words, that diverse group is 

               15    divided across multiple classes, is divided across multiple 

               16    sections, and so that diversity, unless it's a sizable 

               17    critical mass, very quickly dilutes to tokenism, and when 

               18    it's a situation of tokenism, those students feel the 

               19    extreme negative pressures.

               20      Q   In fact, you found that in many classes only one 

               21    black, Latino or Asian American is in the class, true?

               22      A   That's correct.

               23      Q   Right now --

               24      A   That's what they were reporting.  That's what they 

               25    reported. 













                                                                           92

                1            And when you say in the class, you mean not in an 

                2    entering class or cohort, you're talking about in the 

                3    individual classes?

                4      Q   Classrooms.

                5      A   Yes, that's what they were saying. 

                6      Q   And you found in talking with law school -- students 

                7    at the law school today, last year, that discussion of race 

                8    issues is often actually excluded from the classroom, true?

                9      A   In some instances they said excluded, in most 

               10    instances they said very poorly handled; that is, race would 

               11    be brought up, but the faculty, the administration were not 

               12    very skilled and committed in working through those issues.

               13      Q   And oftentimes faculty simply dismissed the discussion 

               14    of race as being unimportant in the classroom at the 

               15    Michigan Law School, true?

               16      A   That's what the students said they felt, yes.

               17      Q   And have you learned from the students that faculty 

               18    are neither prepared or inclined to teach about racial 

               19    issues at the Michigan law school, true?

               20      A   Well, back to your point about generalizations, they 

               21    said that about some of the faculty. 

               22      Q   Okay.  You reported it in your report, true?

               23      A   That some of the faculty were not prepared to discuss 

               24    these issues or interested in discussing the issues.

               25      Q   And on the rare occasions -- you found this, as well, 













                                                                           93

                1    on the rare occasions when race was brought up in the 

                2    classroom at the University of Michigan Law School, faculty 

                3    called on the students of color for their opinion on how 

                4    black or Hispanic or minority people feel about race issues; 

                5    true?

                6      A   Some of the students did report such, yes, sir. 

                7      Q   Professors often shut down discussions about race at 

                8    the Michigan Law School, true?

                9      A   I think that is a true statement, but the shutdown 

               10    is often in the form -- you were present for Ms. James' 

               11    testimony, and the shutting down is sometimes not even 

               12    conscious -- or I'm sorry, I guess that was one student 

               13    who talked about a listing, that was Connie's comment, 

               14    Escobar, about the listing of stereotypes, but then not 

               15    going on to a refutation of them.  So the shutting down is 

               16    at times just stopping the process before it continues to a 

               17    productive conclusion, so raising stereotypes, but then not 

               18    challenging them. 

               19      Q   Is it true that you found at the University of 

               20    Michigan Law School that there are those who believe 

               21    that minority students are stigmatized because of 

               22    affirmative action and the use of race in the admissions 

               23    process?

               24      A   That was an interesting discussion around that.  There 

               25    were some students who made the point that that kind of an 













                                                                           94

                1    association of affirmative action with stigma is just the 

                2    most recent in a long line of excuses and ways and 

                3    strategies of stigmatizing people by race, so it's the 

                4    most recent bases, because as I talked about yesterday, that 

                5    there was a time when presumed biological innate inferiority 

                6    was the stigma, and then there was a time when the cultural 

                7    deficits were a stigma, and even now we have some people who 

                8    talk about so-called socioeconomic deficits as a stigma, 

                9    so the point is that when you look at the history of race 

               10    in this country, there has always been some kind of 

               11    justification or excuse for the perpetuation of unequal 

               12    relationships between whites and blacks, as one group, that 

               13    place responsibility on blacks and not on whites and their 

               14    determination to preserve and protect their privileged 

               15    status. 

               16      Q   I understand that you believe race ought to be used 

               17    in the admissions process and affirmative action ought to 

               18    continue.  Would you agree that reasonable people could 

               19    disagree about whether or not race ought to be considered 

               20    in the admissions process at law schools and undergraduate 

               21    schools?

               22      A   I think reasonable people can disagree about any 

               23    number of subjects and topics, but I think it's vitally 

               24    important, first of all, that the evidence and information 

               25    be before them and that you have representation of 













                                                                           95

                1    reasonable people in that discussion, and unfortunately, 

                2    what happens all too often is the students kept pointing out 

                3    that they were outnumbered, they did not have a voice, there 

                4    were not enough of them in the key places so that there was 

                5    a real and genuine debate, so it was a skewed debate, if 

                6    you will, a debate of unequal power, and so when you have 

                7    debates, quote, unquote, of unequal power it dictates as a 

                8    matter of the powerful group dictating to the weaker group.

                9      Q   You would agree, and so I understand, you believe 

               10    race ought to be a factor and affirmative action ought to 

               11    continue. 

               12            And would you agree that one of the negative 

               13    consequences of using race in the admissions process and of 

               14    affirmative action is it does result in some stigmatization, 

               15    that is, that some people will view minorities as getting  

               16    in with inferior academic credentials, and perhaps unfairly 

               17    so, but that's one of the negative consequences of using 

               18    race in the admissions process, can we agree on that?

               19      A   I can only accept that if you can take me to a time 

               20    when blacks weren't negatively stigmatized in the academic 

               21    setting, but I don't think you can find such a time in terms 

               22    of historically white institutions. 

               23            As you said, there were always excuses and reasons 

               24    and explanations for keeping black students out of higher 

               25    education, for restricting the access of Chicano-Latino 













                                                                           96

                1    students, and as far as I'm concerned, responding directly 

                2    to your question, that's simply the most recent permutation 

                3    on that history of stereotypes and pseudo, quasi 

                4    explanations for exclusion. 

                5      Q   Would you --

                6      A   So whatever stigma that blacks -- I'm sorry for 

                7    interrupting.

                8            Whatever stigma that blacks carry, it's fanciful and 

                9    ridiculous to say that it's affirmative action, because that 

               10    stigma was there up to 1954, when obviously there wasn't 

               11    affirmative action and blacks were legally excluded from 

               12    attending the bulk of or a sizable part of schools.  They 

               13    could not, we could not, go to school with whites, and so 

               14    obviously, affirmative action was not the explanation there. 

               15      Q   Would you agree that it's a negative consequence for 

               16    a minority student to feel he has been stigmatized in the 

               17    sense that others may think that the minority student is 

               18    only at the school because of affirmative action and with 

               19    lesser academic credentials, is that a negative, can that 

               20    be a negative consequence for that minority student?

               21      A   Claude Steele still talks in his work, effectively, 

               22    about stereotype threat and recently his characterization of 

               23    stereotype threat picks up elements of what you're talking 

               24    about, but he goes on, as do most authors that do work 

               25    on this question, to point out that the real and true 













                                                                           97

                1    stereotype threat is not the internal dynamics of these 

                2    young people, but it's the threat of being stereotyped by a 

                3    professor that has the power over your grade and who then 

                4    responds out of that stereotyping in such a way that it 

                5    doesn't matter what you do, that person has predetermined 

                6    that you are not a competent student, that you could not do 

                7    well with this subject matter.  And so that stigmatization, 

                8    that kind of stigma, is more problematic when it is acted 

                9    upon by people in powerful positions.

               10      Q   In the study that you did, didn't you actually learn 

               11    that there were minority students who complained about 

               12    stigmatization?

               13      A   Oh, of course.  They were complaining about racism 

               14    and racial discrimination and the stigma of race, so 

               15    absolutely. 

               16      Q   That was important for --

               17      A   And how they were being treated.

               18      Q   I didn't ask the question very well. 

               19            Isn't it true that a number of students reported 

               20    that they felt stigmatized because of the way students at 

               21    the school perceived affirmative action; that is, a minority 

               22    student reported in your studies that they felt like many 

               23    students felt that the minority students that were there had 

               24    lesser credentials and he resented that?

               25      A   They resented the racial implication, yes.  They 













                                                                           98

                1    resented the implication that grouped them as a population 

                2    of students, assuming all of them, first of all, to be 

                3    unqualified.

                4      Q   In your report you report that there was a clear 

                5    feeling among many students, this is concerning the law 

                6    school, and it's on page seven, I believe, of your report --

                7      A   Yes, I have it.  Yes, sir, I have it. 

                8      Q   At the very bottom of the page, there was a clear 

                9    feeling among many of the students that they had to justify 

               10    being in the law school because they were taking the seat of 

               11    a better qualified white applicant. 

               12            Is it fair to say that was one of the experiences 

               13    that was an example of the kind of experience that these 

               14    minority students reported?

               15      A   Yes, and that's a discrimination experience, a racial 

               16    discrimination experience.

               17      Q   And that has, in your judgment, a negative impact on 

               18    someone, right, to have that kind of stigmatization?

               19      A   To be discriminated against racially, absolutely.

               20      Q   To feel badly because people think that they are there 

               21    with lesser credentials, for example, does that have a 

               22    negative consequence for the minority?

               23      A   See, it's my interpretation that they felt that 

               24    primarily because they weren't being treated fairly, and 

               25    they weren't being treated fairly because it was assumed 













                                                                           99

                1    that they weren't qualified to be in the law school.

                2            MR. KOLBO:  Your Honor, I probably only have a few 

                3    more minutes.  I don't know if you want to take a break now.  

                4    If the witness is tired.

                5            THE COURT:  Did you want to break or would you like 

                6    to finish with the --

                7            THE WITNESS:  Yes, sir, I'm fine.

                8            THE COURT:  Let's finish the cross examination.

                9            MS. MASSIE:  If I may weigh in here, I'll have to 

               10    throw myself on Mr. Kolbo's mercy, which is not a position 

               11    I like to be in.

               12            MR. KOLBO:  I'm very merciful.

               13            THE COURT:  Pardon?

               14            MS. MASSIE:  I was just going to ask if we could 

               15    take a break now.  I would appreciate it.

               16            MR. KOLBO:  That's why I offered.

               17            THE COURT:  I have no problem taking a break.  I 

               18    have no other matters this morning, so let's take about a 

               19    fifteen-minute break.

               20            (Recess taken at 11:08 a.m.)

               21            (Back on the record at 11:50 a.m.)

               22            (Discussion held off the record.)

               23            THE COURT:  Okay.

               24            MR. KOLBO:  Your Honor, one of the advantages of the 

               25    break is that I have been able to shorten up the remainder 













                                                                           100

                1    of my examination on the break, so.

                2            THE COURT:  Oh, okay.

                3    BY MR. KOLBO:

                4      Q   Dr. Allen, you mentioned, I think earlier this 

                5    morning, that you're familiar with some polling data with 

                6    respect to diversity on affirmative action; is that true?

                7      A   I mentioned familiarity with polling as a process and 

                8    also I mentioned familiarity with polling, and then just 

                9    mentioned that I have familiarity with national survey data.

               10      Q   Okay.  On the issue of the use of race in college 

               11    admissions and university admissions, are you familiar 

               12    with some polling data on that?

               13      A   I'm not clear on what you're asking me.

               14      Q   As a part of your work in this area of race and higher 

               15    education, have you become familiar with any polling data, 

               16    national polling data with respect to public opinion on the 

               17    importance or the propriety of using race as a factor in 

               18    admissions processes?

               19      A   I have seen several surveys, yes, and I think what I 

               20    was referring to is surveys that I had conducted where I 

               21    asked students about their attitudes in terms of their 

               22    attitudes toward affirmative action.

               23      Q   Okay.  Are you familiar with the Roper study that was 

               24    done back in 1996 which inquired about public support for 

               25    the use of race as a factor in college and university 













                                                                           101

                1    admissions?

                2      A   I don't remember that one specifically.  I remember 

                3    several surveys and I remember much discussion and debate 

                4    about the wording of questions and that being a problem, 

                5    because depending on how the questions were worded, often 

                6    the argument was that what affirmative action does is 

                7    misrepresented, so in some instances the questions were 

                8    worded to suggest that affirmative action is a quota, in 

                9    other instances they were worded in such a way as to suggest 

               10    that it creates unfair advantages for students, so there 

               11    was much debate and I was familiar with some of the debate.

               12      Q   Are you aware of the fact that the Roper study found 

               13    that most faculty around the country were opposed to the use 

               14    of race in college and university admissions?

               15      A   I'm not aware of that particular study.  I remember 

               16    vaguely one such study.  I would have to see, of course, 

               17    how the particular question was worded.

               18      Q   Okay, sure.

               19      A   Because that part of our American character is going 

               20    to respond negatively to any kind of system that is unfair, 

               21    but when one presents a balanced picture of affirmative 

               22    action, then it's very clear that affirmative action is 

               23    structured to respond to systematic unfairness and to 

               24    address the fact that the society continues to discriminate 

               25    on the basis of race.













                                                                           102

                1      Q   Well, you would agree that there is disagreement in 

                2    this country about whether affirmative action ought to be 

                3    continued insofar as it's defined as the use of race, for 

                4    example, as a factor in college and university admissions?

                5      A   There is debate around that question, yes, sir. 

                6      Q   Are you familiar with a poll conducted by the Zogby 

                7    Company about a year ago that found that most college and 

                8    university students are in favor of diversity, racial 

                9    diversity in colleges and universities?

               10      A   No, I'm not.  I mean, I'd have to see the study and 

               11    the write-up to be reminded of it. 

               12      Q   That wouldn't surprise you, though, would it?

               13      A   No, it wouldn't. 

               14      Q   And you're not familiar with the findings of that poll 

               15    indicating that most of those same students are opposed to 

               16    the use of race as a factor in making admissions decisions 

               17    at colleges and universities, are you aware of that?

               18      A   I'm not aware of it, and again, I would have to see 

               19    the framing and the phrasing of the question, because you 

               20    can structure your questions in such a way that that very 

               21    problem you referred to earlier of selective bias, that that 

               22    very bias to responses can be generated.  

               23            Just because people don't understand what they 

               24    are -- what the true issue is at hand and what -- how, for 

               25    example, affirmative action operates, because it never 













                                                                           103

                1    operates, for example, to admit unqualified students, it's 

                2    really a mechanism that helps to select among the qualified 

                3    students. 

                4      Q   And are you familiar with a poll that was released or 

                5    publicized at least about two weeks ago from the Gallup 

                6    Corporation, CNN Gallup USA, that showed that 87 percent 

                7    of American adults said that colleges should not be allowed 

                8    to consider race as a factor in admissions decisions?

                9      A   No.  Was that the framing of the question? 

               10      Q   That's what I have in front of me, at least in terms 

               11    of the article that describes the poll.

               12      A   I would like to see the question.

               13      Q   Sure.

               14      A   But the article, I don't need to see.

               15      Q   Okay.

               16      A   I would need to see how the question was framed.

               17      Q   You don't want to see the article from USA Today about 

               18    the USA Today poll?

               19      A   I will look at it. 

               20            THE COURT:  We're back to newspapers as being 

               21    the source, and again, with all due respect to the 

               22    newspapers --

               23    BY MR. KOLBO: 

               24      Q   Would you like to see -- do you want to see it?

               25      A   I enjoy reading newspapers, yes. 













                                                                           104

                1      Q   And I have extra copies here.

                2      A   Thank you, sir.

                3            MS. MASSIE:  Do you have an extra of that?

                4            MR. KOLBO:  Yes.  The question is, how many.  

                5    There is one.

                6            MS. MASSIE:  Thank you.

                7            THE WITNESS:  This actually was helpful to see, 

                8    because again, it is wording that will trigger certain kinds 

                9    of responses. 

               10            The whole notion of racial preferences, for example, 

               11    is a misrepresentation of what affirmative action does, and 

               12    automatically disposes people to respond negatively, and 

               13    further you see here some suggestion that students who are 

               14    admitted on the basis of or using mechanisms of affirmative 

               15    action are not academically qualified, but again, that's 

               16    a misrepresentation, so quite naturally, people respond 

               17    by saying, well, what, you're letting people into the 

               18    University of Michigan who can't do the work? 

               19            But we know better that that, because we have a 

               20    history and a record and evidence that shows that students 

               21    who were admitted under affirmative action succeed 

               22    academically and then succeed professionally, so they can 

               23    compete, and what had kept them from competing in the past 

               24    was those kinds of historic racial barriers that didn't give 

               25    black students an opportunity to either succeed or fail, and 













                                                                           105

                1    so what affirmative action has accomplished is to simply 

                2    give those students that opportunity, but once they are 

                3    there, they have to perform.

                4      Q   Do you consider and rely upon polling data as part 

                5    of your work as an educator and in the various work that 

                6    you do?

                7      A   I do survey work.  Polling data, I read it with some 

                8    interest and curiosity, but again, often the challenge is 

                9    in terms of the validity of the framing and phrasing of 

               10    the questions and who it is that funded the poll. 

               11      Q   You do polling, you do survey work of your own, 

               12    don't you?

               13      A   Survey data is different than polling data, because, 

               14    see, polling data, for example, is work where you are 

               15    tapping public opinion under contract to, say, Newsweek or 

               16    under contract to some other organization, and at times 

               17    those organizations have a specific goal in mind and with -- 

               18    and not only specific goal, but a political goal in mind, is 

               19    a better way of putting it, and when you're doing scientific 

               20    research, that's the way you should do scientific research, 

               21    you should be trying to understand objectively the questions 

               22    and the relationships that you're studying.

               23      Q   Do you have any reason to believe that the USA Today 

               24    poll is biased because it was paid for or who sponsored it?

               25      A   I don't even know who paid for this.  The Zogby 













                                                                           106

                1    International Fund, I have never heard of them.

                2      Q   The article you have in front of you concerns the 

                3    Gallup USA poll.

                4      A   But it mentions the Zogby International Polling Group.

                5      Q   Zogby was the question I asked you a few minutes ago, 

                6    the Zogby poll, which is an older poll.  It's also 

                7    referenced there.

                8      A   Right, okay.  That, I don't know.  And what I would 

                9    say is that -- well, I'll repeat what I said a moment ago.  

               10    It's hard to get agreement to racial preferences, and that's 

               11    understandable, but the way affirmative action operates, 

               12    it's a misrepresentation to talk about it as a racial 

               13    preference system. 

               14      Q   You, in your survey, you ask students whether they 

               15    agreed or disagreed that different admissions criteria and 

               16    standards were justified for some racial minority students.

               17      A   Yes.

               18      Q   And that at law schools you found that most of the 

               19    students agreed with that proposition; true?

               20      A   I think so.  Are you looking at a particular page? 

               21      Q   I think it's at report page --

               22      A   It sounds like -- I accept that that was our finding, 

               23    yes, sir. 

               24      Q   If you want to look at it, I think it's page 91, but 

               25    I wrote it down that you found an overwhelming majority 













                                                                           107

                1    strongly agreed that different admissions criteria and 

                2    standards were justified for some racial minority students.

                3      A   Yes, that was an attitude or opinion question and they 

                4    did agree.

                5      Q   Is it fair to say that you agree with that 

                6    proposition, too?

                7      A   I agree with what that proposition implies, and it 

                8    implies that when you are selecting students, you recognize 

                9    that the broadest set of indicators of academic promise and 

               10    academic accomplishment would be to use -- should be used. 

               11            So in other words, it should not simply be a matter 

               12    of test scores or even a matter of test scores on GPA's, 

               13    but again, look -- as I said, looking at the whole person 

               14    and looking at that whole educational experience, so looking 

               15    at letters of reference, looking at community service, so a 

               16    thorough, whole reading of the academic record should be the 

               17    basis for the admissions decisions, so I fully agree with 

               18    that. 

               19      Q   Okay.  Last subject, you have mentioned that you're 

               20    familiar with Claude Steele?

               21      A   Yes, I am. 

               22      Q   Are you familiar with the work of his brother, Shelby 

               23    Steele?

               24      A   The one book that I have seen of Shelby -- of Shelby 

               25    Steele's is The Content of Character, something like that.













                                                                           108

                1      Q   Have you seen A Dream Deferred?

                2      A   I have seen the title.  I haven't read the book 

                3    yet, no.

                4      Q   Do you understand that Shelby Steele is an opponent 

                5    of the use of race as a factor in college and university 

                6    admissions?

                7      A   I have heard as much. 

                8      Q   Let me just read a statement?

                9            MS. MASSIE:  I'll raise an objection, continuing 

               10    relevance objection to this line of questions.  I don't 

               11    think it has anything to do with anything what Shelby Steele 

               12    thinks, just because he happens to be related to Claude 

               13    Steele.

               14            MR. KOLBO:  Your Honor, I want to ask the question 

               15    just briefly whether he agrees or disagrees with an opinion.

               16            THE COURT:  You may ask him.

               17    BY MR. KOLBO:

               18      Q   And this, I believe, is close to my last question, if 

               19    not my last question, Dr. Allen.  I just want to read a 

               20    statement that Dr. Steele, Shelby Steele wrote in his book, 

               21    A Dream Deferred, and ask you simply whether you agree or 

               22    disagree with it.

               23            And this is Dr. Steele:  "The most 

               24                dehumanizing and defeating thing 

               25                that can be done to black Americans, 













                                                                           109

                1                for example, is to lower a standard 

                2                in the name of their race." 

                3            Do you agree or disagree with that?

                4      A   I would be curious to know how he arrived at that 

                5    conclusion.  I mean, is that based on a survey or focus 

                6    groups?

                7      Q   That's his opinion as expressed. 

                8      A   Oh, that's his opinion?

                9      Q   Yes.

               10      A   Well, I don't think the evidence is there to support 

               11    his opinion, and if he clearly frames it as an opinion, 

               12    then it's an article of faith, and I'm hesitant to challenge 

               13    people's articles of faith until they represent them as if 

               14    they are fact.

               15      Q   I'm just asking you if you agree or disagree with 

               16    the statement that he has made.  I take it you disagree?

               17      A   Would you read that statement again, please? 

               18      Q   Yes. 

               19                     "The most dehumanizing and 

               20                defeating thing that can be done 

               21                to black Americans, for example, 

               22                is to lower a standard in the name 

               23                of their race." 

               24            Agree or disagree?

               25      A   You know, when I read the history of what has happened 













                                                                           110

                1    to black people in this country, and the various long line 

                2    of dehumanizing acts and experiences we have been subjected 

                3    to, I can't begin in good conscious to accept that this 

                4    particular assertion of the most dehumanizing thing you can 

                5    do to black people has any kind of credibility or makes any 

                6    kind of sense. 

                7            Black people have been lynched in this country.  

                8    Black people have been unfairly denied their rights as 

                9    citizens, and those kinds of harsh, extreme, degrading 

               10    experiences continue into the present, and so I, for a 

               11    variety of reasons, don't agree with that, and am really 

               12    just at a loss to even comment on it, because as you said, 

               13    it's his opinion, and as best I can tell, it has no basis 

               14    in fact.

               15            MR. KOLBO:  That's all I have.  Thank you, 

               16    Dr. Allen.

               17            THE WITNESS:  Thank you, sir. 

               18            THE COURT:  Any further questions?

               19            MS. MASSIE:  Thanks, Judge.

               20                RE-DIRECT EXAMINATION

               21    BY MS. MASSIE: 

               22      Q   Hello, Professor Allen.

               23      A   Attorney Massie. 

               24      Q   Mr. Kolbo asked you some questions about general 

               25    societal discrimination.  You're aware that this is a case 













                                                                           111

                1    about admissions to law school? 

                2      A   (Nods head.)

                3      Q   Can you respond verbally?

                4      A   Yes, I am. 

                5      Q   Sorry.

                6      A   I'm sorry. 

                7      Q   And without affirmative action, use of grade point 

                8    average just operationalizes and intensifies the different 

                9    forms of societal and educational discrimination you have 

               10    been describing, right?

               11      A   That's correct. 

               12      Q   So without affirmative action, using aggregate 

               13    differences in GPA, you use the denial of opportunity to 

               14    further deny opportunity?

               15      A   That's correct. 

               16      Q   Is there a double standard in education in our 

               17    society?

               18      A   Yes, very much so.

               19      Q   What is the content of that double standard?

               20      A   That double standard takes the form of a pattern of 

               21    denying educational access and opportunities to people of 

               22    color and at the same time making those opportunities 

               23    plentiful, plentifully available to whites, and so it 

               24    translates into a double standard such that the two 

               25    groups, that is, whites and nonwhites, have not had equal 













                                                                           112

                1    opportunities, but they are then later being held to a 

                2    quote, unquote, equal standard. 

                3      Q   And in your view, is it necessary to take race into 

                4    account in college and graduate and professional school 

                5    admissions to the extent that it's necessary to do so to 

                6    counteract the effects of racism?

                7      A   I would say, yes, and then I go into and elaborate 

                8    that race is taken into account anyway by virtue of the fact 

                9    that the system of admissions privileges white experience 

               10    and white routes of educational preparation; that is, whites 

               11    have had advantages and have had preparation that then is 

               12    the basis for making those decisions about who is admitted, 

               13    so even when they talk about race not being present, it is 

               14    very much present, because it's a system that's dominated 

               15    by white privilege. 

               16      Q   So if you were to force a university to eliminate the 

               17    consideration of race in examinations, we'd be asking them 

               18    to rubber stamp that double standard?

               19      A   Absolutely. 

               20      Q   We'd be asking them to ratify existing discrimination 

               21    and bias?

               22      A   I agree. 

               23      Q   You talked a little bit about the systematic effects 

               24    of unequal opportunity or the systematic nature of unequal 

               25    opportunity.  I wanted to ask you, you spoke some and had an 













                                                                           113

                1    exchange with the Court on how economic class and race are 

                2    related in systematic ways. 

                3            Does race have systematic effects in our society and 

                4    in education that go beyond, that extend beyond the question 

                5    of economic class?

                6      A   Yes, very much so.  And the evidence is again 

                7    plentiful where we see that for black students or 

                8    Chicano-Latino students who are in a -- in the same 

                9    educational setting as white students of, you know, 

               10    comparable economic status, they experience different 

               11    educational outcomes; that is, those nonwhite students 

               12    experience different educational, because their experiences 

               13    within the school system are disadvantaged. 

               14            So we have literature that's talking now about 

               15    schools within schools, so you will have, say, a school 

               16    that includes both black and white kids and the school's 

               17    curriculum is fully developed, but when you look at the 

               18    patterns of difference by race in terms of which students 

               19    are in the advanced placement classes, which students are 

               20    in the academic preparation or the college preparatory 

               21    track, then what you see is discrimination or segregation 

               22    within the school; that is, the higher educational track, 

               23    that track that leads to the University of Michigan is 

               24    disproportionately white, and black students, Chicano-Latino 

               25    students are excluded from that track.  Even though they are 













                                                                           114

                1    all in the same building, their educational experiences are 

                2    quite different and they are segregated by race. 

                3      Q   And in fact, the work of Claude Steele and others make 

                4    it clear that even for two students sitting in the same 

                5    classroom, even for the lucky black or Latino middle class 

                6    student who doesn't get tracked, the experience of that 

                7    classroom is totally dependent on the race of the person 

                8    doing the experiencing?

                9      A   That's very true.  He does an excellent job in 

               10    systematically in clinical and experimental situations 

               11    proving that point. 

               12      Q   So socioeconomic status is no substitute for 

               13    affirmative action for race, because it's not race?

               14      A   Exactly. 

               15      Q   There is a phenomenon of black movement into the 

               16    suburbs into some areas, including this one.  I know you 

               17    lived here for some time and did some studies on the upper 

               18    midwest and on Michigan.  Are you familiar at all with the 

               19    process of blacks suburbanization saying into Southfield, 

               20    Michigan?

               21      A   Yes, I am. 

               22      Q   And what can you tell us about how that 

               23    suburbanization process has affected the educational 

               24    experiences and prospects of young black people?

               25      A   What we have seen, and I should give you the sort of 













                                                                           115

                1    basis for the work I have done, in the book, Race and the 

                2    Quality of Life in America, we looked at that very question 

                3    of suburbanization, and then as director for one year of the 

                4    Detroit area study, which is the study of the three-county 

                5    metropolitan area, we looked at race and residence.

                6            And what has happened is that even with that 

                7    suburbanization, then what unfolds is a process where 

                8    those suburbs become racially segregated, so Inkster 

                9    becomes a -- it's a suburb, but it is racially segregated, 

               10    it becomes a racially segregated suburb. 

               11            Similarly, the case with Southfield, and with the 

               12    turn toward a more racial, racially segregated suburb comes 

               13    the associated turn as regards the declining quality of 

               14    schools and the availability of resources, just because of 

               15    the patterns and then the ways in which schools are funded.

               16            And so what happens is that you see repeated 

               17    patterns of educational deprivation by race that have been 

               18    characteristic of central cities that had largely black 

               19    populations being now played out with suburbs that move 

               20    to a point where they are majority black. 

               21      Q   And they become majority black in large part because 

               22    of white flight; correct?

               23      A   Absolutely.  We have had a history of pattern of 

               24    whites fleeing residential proximity with blacks and that 

               25    ties into all the stereotypes about black people, it ties 













                                                                           116

                1    into all the stigma associated with blackness, and it's very 

                2    difficult to find integrated communities in this country. 

                3      Q   And the white people that contribute to the phenomenon 

                4    with the white flight, are all those people conscious 

                5    bigots, in your opinion?

                6      A   Not really, not really.  They often will respond 

                7    unconsciously, but they respond consistently and in a 

                8    patterned way, and that is to move out of any community 

                9    that is beginning to get any semblance of a sizable black 

               10    population, or for that matter, any semblance of a sizable 

               11    critical mass of Chicano-Latinos. 

               12      Q   And you can have that kind of unconscious effect 

               13    because race structures our experiences and our perceptions 

               14    so fundamentally in this country?

               15      A   Exactly. 

               16      Q   You have studied race and racism in various sectors of 

               17    life, health, housing, education, other kinds of welfare 

               18    questions, and you have studied stereotypes and stigma and 

               19    the phenomenon of racism for decades now?

               20      A   Yes. 

               21      Q   In your opinion, is affirmative action the source of 

               22    racial stereotypes and stigmas that say that black and 

               23    Latino people are intellectually inferior?

               24      A   Absolutely not.

               25      Q   What do you base that on?













                                                                           117

                1      A   Just on a reading of an accumulated scholarship 

                2    in terms of history, historical studies, in terms of 

                3    sociological studies that demonstrate that those kinds of 

                4    negative stereotypes preceded affirmative action, and 

                5    indeed, a stated purpose of affirmative action was to create 

                6    mechanisms for tearing down those historic and established 

                7    and longstanding racial stereotypes, so it's actually 

                8    fanciful and laughable to talk about affirmative action 

                9    as being a cause of such stigma.

               10      Q   You mentioned the testimony of Crystal James several 

               11    times in your testimony.

               12      A   Yes, I have. 

               13      Q   And Ms. James said that when she was at Sanford, which 

               14    had affirmative action at the time, she didn't feel like 

               15    anybody ever thought she was there because of affirmative 

               16    action.

               17      A   That's very true. 

               18      Q   And then what happened when she went to UCLA after 

               19    affirmative action was eliminated and the school was 

               20    resegregated?

               21      A   Well, the paradox is that when she went to UCLA and 

               22    affirmative action was not a factor in her selection, she 

               23    in fact experienced discrimination because people used 

               24    that assumption as a basis for saying that she was not 

               25    educationally qualified and creating extreme psychological 













                                                                           118

                1    distress for her and isolating her socially and undercutting 

                2    her academic performance.  So that was a paradox. 

                3            And the situation where she was admitted under the 

                4    basis of affirmative action, no stigma was attached, and 

                5    in the reverse of that situation, that is, when she was 

                6    admitted to the University of California Law School, UCLA 

                7    Law School after affirmative action, that is, without any 

                8    kind of assistance from affirmative action, she nevertheless 

                9    was penalized and stigmatized as using that as a basis for 

               10    saying that she was not educationally qualified and should 

               11    not be there. 

               12      Q   And does it help support your position that we need 

               13    greater numbers of black and Latino and Native American 

               14    students in order to reduce stereotyping and stigma and 

               15    hostile environment?

               16      A   I think that is absolutely the case and I think that 

               17    the past 30 years has shown us that this is true and we are 

               18    a better society now as a result of the fact that there is 

               19    now diversity in places where there hadn't been diversity, 

               20    and affirmative action was one of the chief mechanisms for 

               21    opening up spaces where not only black people had been 

               22    excluded from, not only Chicano-Latinos had been excluded 

               23    from, but women had been excluded from, and now that we 

               24    have opened up the society, we find that many of those 

               25    institutions are much stronger as a result. 













                                                                           119

                1      Q   We have come a long way, but we still have a long way 

                2    to go?

                3      A   Absolutely. 

                4      Q   And speaking of the University of Michigan law school, 

                5    in particular, the U of M law school has come along way in 

                6    your view, isn't that right?

                7      A   I agree, most definitely. 

                8      Q   And it still has a very long way to go?

                9      A   Very correct.

               10      Q   Is eliminating affirmative action there the first 

               11    step?

               12      A   The first step backward.

               13            MS. MASSIE:  Thank you.

               14            THE WITNESS:  Thank you.

               15            THE COURT:  Professor Allen, can I ask you, take 

               16    your expert witness hat off for a second and put your 

               17    teaching hat on for a second, because my clerks and I talked 

               18    about this, and I looked at your survey and so forth, and I 

               19    guess I need some more definition of some words that I know 

               20    you can help me with.

               21            THE WITNESS:  I'll try, Your Honor.

               22            THE COURT:  And in your surveys, you talk about 

               23    people, asking them about their racial or cultural 

               24    identification and you use the word, Latino, and in this 

               25    trial we have heard lots of words.  If you could define 













                                                                           120

                1    that for me. 

                2            The reason I ask that is, just a little while ago 

                3    you used other words and so forth.  If you could, I'm going 

                4    to ask you to define words, your teaching hat more than 

                5    anything, because I have to learn a little bit more.  I 

                6    thought I knew until I got here and I think you're the 

                7    person. 

                8            If you could define that for me, I'd appreciate 

                9    that. 

               10            THE WITNESS:  That terminology is actually, Your 

               11    Honor, a reflection of my learning by virtue of moving out 

               12    to California.  As you know, we in the midwest tend to use a 

               13    comparable term of Hispanic.

               14            THE COURT:  Right.  That was my next question.

               15            THE WITNESS:  And by virtue of moving into 

               16    California and being educated by my colleagues there, I have 

               17    come to use a broader and preferred term of Latino, which 

               18    is of Latin American ancestry, basically the point of 

               19    reference, but in addition, to talk and think in terms 

               20    of Chicanos, who are more so Mexican Americans, because 

               21    in trying to understand the complexities of racial 

               22    discrimination, say, in California, the one change that 

               23    comes very clearly is that to some extent the experiences 

               24    of Chicanos are different from, say, a Latino, and this 

               25    is -- it was really quite interesting for me to understand 













                                                                           121

                1    and learn, for example, that there was a sizable Jewish 

                2    population in Mexico from an earlier point of migration 

                3    out of Europe for reasons of the Holocaust and related 

                4    reasons, and so -- but the point being that there is a 

                5    distinction between, say, a Chicano and a Latino in terms 

                6    of culture, in terms of experiences, and in some cases even 

                7    in terms of phenotype; that is, skin color and related 

                8    issues.  So now that's my best, and I have to qualify, it's 

                9    a clumsy explanation.

               10            THE COURT:  But it's a good one.

               11            THE WITNESS:  There are experts that could do a 

               12    better job.

               13            THE COURT:  Could I ask you one more question, and 

               14    that has to do with Asian Americans and then Pacific 

               15    Islanders.

               16            THE WITNESS:  Yes, sir.  That again has been, and 

               17    Your Honor, you're tapping into what has been the wonderful 

               18    part of my education in California, because, and strictly 

               19    and solely due to that diversity there, where people have 

               20    spelled out to me the diversity, first of all, within the 

               21    group of Asian Americans, that there are these rich and very 

               22    important differences between the Chinese and Korean and 

               23    Vietnamese experiential groups in terms of not only language 

               24    and culture, but of course, there are the similarities, 

               25    but then further that linking to the Pacific Islander 













                                                                           122

                1    population, people from Samoa and from that wide range 

                2    of Pacific Islands and even to a lesser extent Native 

                3    Hawaiians, but once more, we can think in terms of them 

                4    as a larger category, but being sensitive to the rich 

                5    differences underlying. 

                6            So the Asian Americans and the diversity within the 

                7    group and then the Asian American population vis-a-vis, say, 

                8    Pacific Islanders, for example, you might even -- well, I 

                9    have said enough.

               10            THE COURT:  Let me ask you one more question, and 

               11    again, you said something before, and I understand, you 

               12    don't have to give me the answer again, but in terms of 

               13    the effects of what happened after Proposition 209 in the 

               14    educational, and I suspect in other areas, because Counsel 

               15    gave me a case to read which I have in terms of contracting, 

               16    and so either tell me as a sociologist and maybe just as a 

               17    citizen out there, in short explanation, tell me, as you 

               18    perceive it, what other effects it had in areas probably 

               19    just generally.

               20            THE WITNESS:  Your Honor, it  --

               21            THE COURT:  Is that too wide of a question?

               22            THE WITNESS:  No, sir. 

               23            That proposition was demoralizing in many respects.  

               24    I mean, it sent a message that rather than encouraging and 

               25    creating hope for students of color who had been excluded, 













                                                                           123

                1    that instead there would be no opportunities for them at 

                2    the University, at the most prestigious universities in 

                3    California, the UC system, and so the effects have been 

                4    multiple. 

                5            I mean, psychologically negative effect, but also a 

                6    negative effect in terms of schooling process for many of 

                7    those young people, because often when you're talking about 

                8    an inner city school situation, it's a situation where it's 

                9    hard to find hope anyway, and so to the extent that this 

               10    additional life preserver is taken away, then it just has 

               11    negative consequences for students. 

               12            And physically, for us, for me, it's just changed 

               13    my -- the richness of my experience at the University of 

               14    California-Los Angeles.  I went there because it was a place 

               15    that combined diversity and excellence, and as I said, in 

               16    the first year of implementation of Prop 209 there was a 

               17    40 percent decline in the Chicano-Latino population, a 

               18    50 percent drop in the black student population, and so 

               19    thereby depriving us of the rich contributions of those 

               20    students.

               21            And there were related drops, recent stories that 

               22    research is showing us, in the new hires of white female 

               23    faculty.  We have had a 38 percent decline in the new hires 

               24    of white females since Prop 209 was implemented and I think 

               25    all of this just reminds us --













                                                                           124

                1            THE COURT:  It just flowed down?

                2            THE WITNESS:  Yes, sir, and we still need those 

                3    kinds of mechanisms. 

                4            THE COURT:  I appreciate it.  It's been a pleasure 

                5    having you.

                6            THE WITNESS:  Thank you, sir.  It's been a pleasure 

                7    being here.

                8            THE COURT:  And I enjoyed learning from you.

                9            THE WITNESS:  Thank you, Your Honor.

               10            THE COURT:  Okay.  Next witness.

               11            MS. MASSIE:  Mr. Washington will take the next 

               12    witness. 

               13            THE COURT:  You're letting him work today?

               14            MR. WASHINGTON:  I'm going to work today, Judge. 

               15            We would like to call Dr. Eugene Garcia, from the 

               16    University of California.   

               17            THE COURT:  Okay.  Dr. Garcia, would you be kind 

               18    enough to raise your right hand? 

               19            We're going to blame the bad weather on you.  Did 

               20    you bring it with you?

               21            THE WITNESS:  I think so.  

               22                E U G E N E    G A R C I A,

               23    having been called as a witness herein, and after having 

               24    been first duly sworn to tell the truth, the whole truth 

               25    and nothing but the truth was examined and testified.













                                                                           125

                1                     DIRECT EXAMINATION

                2    BY MR. WASHINGTON:

                3      Q   Sir, would you state your name and your business 

                4    address for the record, please?

                5      A   Yes.  My name is Eugene E. Garcia.  I'm at the 

                6    University of California-Berkley.  I'm Dean of the Graduate 

                7    School of Education there. 

                8      Q   And Dr. Garcia, before you became Dean of the Graduate 

                9    School of Education at the University of California, can you 

               10    tell us where you grew up?

               11      A   Yes, I grew up in the southwestern part of the United 

               12    States, around Four Corners area, specifically, in the area 

               13    of the western slope of Colorado, small town of Fruita, 

               14    actually, which is close to a larger town of Grand Junction, 

               15    Colorado. 

               16      Q   And what did your parents do, sir?

               17      A   They were farm workers, we were migrant workers and 

               18    share croppers.

               19      Q   And what is your native language?

               20      A   Spanish is my native language. 

               21      Q   Did you go to high school in that area, Four Corners?

               22      A   Yes, I did.

               23      Q   And where was that?

               24      A   That was in Grand Junction, Grand Junction High 

               25    School. 













                                                                           126

                1      Q   Did you have occasion while you were in high school 

                2    to take an SAT test?

                3      A   I remember it very well, yes, I do. 

                4      Q   And I won't ask you what you got, but did anybody talk 

                5    to you afterwards and give you any kind of counseling about 

                6    what it all meant?

                7      A   Sure.  Those of us who were considering going on to 

                8    college were asked to take the SAT.  My baseball coach is 

                9    the one that actually suggested I do that, because I was 

               10    looking at a baseball scholarship, and the counselor, 

               11    therefore, called all the individual students one by one 

               12    to indicate to them how they had done. 

               13            So you may remember your own SAT scores, they are in 

               14    percentile ranks, they give you these,  and as a high school 

               15    senior, at least many of my colleagues and I could not 

               16    understand what all these numbers meant, and so I did have 

               17    a discussion with him right after that score came.

               18      Q   And did he give you some advice as to what your 

               19    prospects were?

               20      A   Well, he told me I didn't do very well, but said that 

               21    was okay, but one comment he made very directly was, in a 

               22    very supportive way, is that, he said, you'll never be a 

               23    college professor.

               24            THE COURT:  No comment?

               25            THE WITNESS:  No comment. 













                                                                           127

                1            THE COURT:  We had a discussion about who becomes 

                2    different things.

                3            THE WITNESS:  And I didn't -- by the way, I didn't 

                4    ever think I would be a college professor, so.

                5    BY MR. WASHINGTON:  

                6      Q   What have you done for the last 28 years of your life?

                7      A   Most of the early time, of course, after high school 

                8    was spent at a community college, then to a four-year 

                9    university, on to graduate school, and then the last 

               10    26 years in the -- in higher education with some time in 

               11    the Federal Government. 

               12      Q   And for the 26 years have you been a college 

               13    professor?

               14      A   I have. 

               15      Q   And during the course of that 26 years, have you had 

               16    occasion to return to the SAT test?

               17      A   I have on several occasions, correct. 

               18      Q   You have published books on the SAT?

               19      A   I have, on the SAT, commentary on the SAT, yes, 

               20    correct. 

               21      Q   Let me back up a little bit.

               22      A   Sure. 

               23      Q   You said -- if you would give us just a review of your 

               24    education, sir.

               25      A   Sure.  I again went to community college, off to the 













                                                                           128

                1    University of Utah, where I graduated with a Bachelors in 

                2    Psychology, and off to a doctoral program at the University 

                3    of Kansas, a degree in human development and psychology.

                4      Q   And when did you take your PhD?

                5      A   When? 

                6      Q   Yes.

                7      A   1972.

                8      Q   And did you then do post-doctoral work?

                9      A   Yes, I did post-doctoral work at Harvard University.

               10      Q   And in what field did you do post-doctoral work?

               11      A   Child development. 

               12      Q   And did you become -- did you then go do any research 

               13    for the National Research Council?

               14      A   Yes.  I was a post-doctoral fellow that was funded 

               15    thereafter to do work in the areas of language development 

               16    and academic achievement. 

               17      Q   And did you receive other post-doctoral fellowships?

               18      A   Yes.  I also received a post-doctoral fellowship from 

               19    the Kellogg Foundation, a leadership foundation program that 

               20    tried to provide support for, broadly, looking at issues of 

               21    education, social development, et cetera. 

               22      Q   And where did you begin your career as a college 

               23    professor?

               24      A   Back at the University of Utah, where I had received 

               25    my BA.













                                                                           129

                1      Q   And what year did you begin as a college professor?

                2      A   1972.

                3      Q   And in what department did you enter the University of 

                4    Utah?

                5      A   Department of Psychology. 

                6      Q   And after the University of Utah, did you go work at 

                7    another college?

                8      A   Yes, I have been at the university -- then from Utah I 

                9    went to University of California-Santa Barbara.

               10      Q   And were you a chair of any departments there?

               11      A   I was the Chair of the Chicano Studies Department 

               12    there.

               13      Q   And from Santa Barbara, where did you then go?

               14      A   I went to Arizona State University.

               15      Q   And how long were you at Arizona State University?

               16      A   Approximately seven years.

               17      Q   And what was your position there?

               18      A   I was the Director of a research center, Bilingual 

               19    Education Research Center. 

               20      Q   Did you then move back to the University of 

               21    California?

               22      A   Yes, I then returned to the University of California 

               23    Santa Cruz.

               24      Q   In what position?

               25      A   As Chair of the Education Department at Santa Cruz.













                                                                           130

                1      Q   And how long were you at Santa Cruz?

                2      A   I was at Santa Cruz about eight years.

                3      Q   And did you have, then, occasion to work for the 

                4    United States Government?

                5      A   Yes.  I went to work in the early days of the Clinton 

                6    Administration as an Assistant Secretary Director in the 

                7    Office of -- Department of Education.

                8      Q   And what particular office were you working in?

                9      A   I was the Director of the Office of Bilingual 

               10    Education and Minority Language Affairs.

               11      Q   And how long did you work for the United States 

               12    Government?

               13      A   Just two years.

               14      Q   And then where did you go?

               15      A   And I took my present position at UC-Berkley. 

               16      Q   And did you become immediately the Dean at the 

               17    University?

               18      A   Yes, I became the Dean.

               19      Q   Now, Dr. Garcia, have you had occasion to publish any 

               20    kinds of work on education and in particular education of 

               21    Latinos and under-represented minorities?

               22      A   Yes, quite extensively worked in the area of language, 

               23    culture and schooling with the focus on Latino students, 

               24    Mexican American students, Chicano students, et cetera. 

               25      Q   And can you give me some examples of work you've 













                                                                           131

                1    published?

                2      A   Sure.  Early work in language development of children 

                3    who are multilingual, who come from homes in which two 

                4    languages are spoken, work which is -- has detailed the 

                5    kinds of educational achievement and educational experiences 

                6    of those same kinds of students as they move through the 

                7    school system, and then work which looks at the academic 

                8    achievement and relationship of academic achievement and 

                9    opportunities for achievement and access to higher 

               10    education. 

               11      Q   And have you also studied a field called 

               12    psycholinguistics?

               13      A   Yes.  My training is primarily in the area of 

               14    language development, child development. 

               15      Q   Tell me what psycholinguistics mean.

               16      A   It's the study of the development and use of language 

               17    by individuals in multiple settings and how individuals 

               18    function to use language and acquire it to do so.

               19      Q   And have you had, in addition to publishing books on 

               20    these subjects, have you published a number of articles and 

               21    publications on the subject of the education of Latinos and 

               22    also of under-represented minorities generally?

               23      A   Yes, I have, quite extensively.  That work, again, is 

               24    either large scale analyses for policy purposes, looking at 

               25    achievement access, et cetera, and more intensively looking 













                                                                           132

                1    at what actually goes on in classrooms.

                2            MR. WASHINGTON:  Your Honor, I would offer 

                3    Dr. Garcia as an expert in the field of education and 

                4    also in the field of psycholinguistics.

                5            THE COURT:  Any objection?

                6            MR. KOLBO:  I have no objection.

                7            THE COURT:  He shall be qualified to testify in 

                8    those areas.

                9            MR. WASHINGTON:  Thank you very much.

               10    BY MR. WASHINGTON:

               11      Q   Dr. Garcia, you have said you have been in the 

               12    University of California system for a number of different 

               13    spans of time.  Can you describe for us what the University 

               14    of California is?

               15      A   Sure.  California is really made up, through the 

               16    process of a master plan of higher education, made up of 

               17    three different institutions; community colleges, which 

               18    service essentially two-year educational -- or offers a 

               19    two-year educational arena, and then two four-year systems, 

               20    CalState University system and a UC system. 

               21            The University of California system is, in 

               22    California, identified as sort of the premier institution.  

               23    It makes eligible and attempts to educate the top twelve 

               24    and-a-half percent of the students of California.  The 

               25    CSU then takes the other 40 percent, and the remainder are 













                                                                           133

                1    encouraged to attend the community colleges.  In essence, 

                2    California has attempted to make higher education a reality 

                3    for all students in California. 

                4      Q   And the University of California, that twelve 

                5    and-a-half percent figure that you mentioned, where does 

                6    that come from?

                7      A   It's actually in the master plan, and the idea of the 

                8    top twelve and-a-half percent is to try to take a set of 

                9    students who have been academically successful at the 

               10    high school level in California, recall the specifics 

               11    that California is only allowed to serve ten percent 

               12    nonCalifornia residents, so University of California serves 

               13    primarily residents of California, and the intent there is 

               14    to take those top students and give them the very best 

               15    educational experience.

               16            Now, the University of California constitutionally 

               17    and otherwise makes clear that its goal is to produce the 

               18    leaders for the future, leaders necessary in all domains 

               19    of the social fabric of California, the economics, the 

               20    political, the educational, the intellectual. 

               21            THE COURT:  Just one quick question.  So what you're 

               22    telling me that is the top twelve and-a-half percent of 

               23    students no matter what high school they went to?

               24            THE WITNESS:  Right.

               25            THE COURT:  No matter what neighborhood it's from or 













                                                                           134

                1    anything else, they are, if they chose to, they are allowed 

                2    to go to --

                3            THE WITNESS:  They become eligible.  We have the 

                4    term, eligibility.  They become eligible to come to the 

                5    University of California, yes. 

                6            THE COURT:  Okay.

                7            THE WITNESS:  And it is a statewide eligibility.

                8            THE COURT:  And so assuming they want to, they are 

                9    guaranteed, and the next 40 percent is guaranteed, also?

               10            THE WITNESS:  Correct, the next 40 percent is 

               11    guaranteed a place in the CalState University system.

               12            THE COURT:  No matter?

               13            THE WITNESS:  Right.

               14            THE COURT:  And then the rest are also in the 

               15    community college kind of setting?

               16            THE WITNESS:  A community college, correct.

               17            THE COURT:  Even if they graduated last in their 

               18    class?

               19            THE WITNESS:  That's right.

               20            THE COURT:  No matter what school they went to?

               21            THE WITNESS:  That's right.  Right.  That's the 

               22    intent, is all students should have a chance to go on to 

               23    higher education.

               24            THE COURT:  So for instance, if -- we have heard 

               25    here and it's certainly a reality that lots of school 













                                                                           135

                1    districts are segregated because that's how it happens 

                2    historically and so forth, so no matter what school, no 

                3    matter where it is, twelve and-a-half percent of those 

                4    students will --

                5            THE WITNESS:  Not twelve and-a-half percent of those 

                6    students, twelve and-a-half percent in the state.  So you 

                7    may have some high schools that may have the entire senior 

                8    class in the twelve and-a-half percent and some high schools 

                9    may have none.

               10            THE COURT:  I got you.  That was my point.

               11            THE WITNESS:  And that is the problem, that we do 

               12    have high schools that are highly segregated serving 

               13    segregated students, particularly Latino students.

               14            THE COURT:  Right.

               15            THE WITNESS:  That do not have any eligibility.

               16            THE COURT:  So if those schools -- the top twelve 

               17    and-a-half percent goes in that pool of the twelve 

               18    and-a-half percent?

               19            THE WITNESS:  That's right.

               20            THE COURT:  So they are not guaranteed to do that.

               21            THE WITNESS:  No. 

               22            THE COURT:  The only thing they are guaranteed is 

               23    somewhere in the twelve and-a-half, the 40, or the community 

               24    college?

               25            THE WITNESS:  That's correct, that's correct, yes.













                                                                           136

                1    BY MR. WASHINGTON: 

                2      Q   Just so I understand it, the twelve and-a-half percent 

                3    is the statewide figure of people who are eligible --

                4      A   Right.

                5      Q   -- to go to the University?

                6      A   Of high school graduates that are eligible.

                7            THE COURT:  I understand it's the state, not 

                8    schoolwide?

                9            THE WITNESS:  Statewide, not school by school.

               10            THE COURT:  There are some states that are talking 

               11    school by school, are there not?

               12            THE WITNESS:  Texas.

               13            THE COURT:  I ask you, because I know that in the 

               14    last Administration, that there was some discussion about 

               15    that.

               16            THE WITNESS:  Texas has adopted for the UT system, 

               17    UT Austin, UT Texas A&M, the top ten percent of students in 

               18    their high school.

               19            THE COURT:  In their high stool?

               20            THE WITNESS:  Context-based percentage, California 

               21    is statewide.

               22            THE COURT:  Statewide?

               23            THE WITNESS:  Statewide.

               24            THE COURT:  So the only guarantee you have, you know 

               25    you can go to school, but it may be a community college?













                                                                           137

                1            THE WITNESS:  Correct, correct. 

                2            THE COURT:  I didn't mean to interrupt.

                3            MR. WASHINGTON:  Sure, no problem, Judge.

                4    BY MR. WASHINGTON:

                5      Q   Dr. Garcia, what's the difference between the 

                6    University of California system and the California State 

                7    College --

                8      A   Sure.

                9      Q   -- and the community college system, educationally 

               10    speaking?

               11      A   The University of California offers a much more 

               12    diverse set of options for students.  Keep in mind the 

               13    University of California is the only part of the system 

               14    that offers the doctoral degree, so they are identified as 

               15    research institutions, so the faculty members who are 

               16    appointed to serve in the University of California are 

               17    judged primarily on the research and scholarship 

               18    capabilities. 

               19            They also teach, and the idea here is to place 

               20    our very best students with our very best faculty with the 

               21    intent of producing the best intellectual climate, and 

               22    again, producing the kind of leaders that we need for the 

               23    future. 

               24      Q   And can you then contrast that to the State College 

               25    system in California?













                                                                           138

                1      A   The State College system is not driven by research 

                2    productivity or scholarship.  That doesn't mean the faculty 

                3    there don't care about it, it's just that they are primarily 

                4    a teaching institution.  If you can characterize both the 

                5    CSU and the community college as a dissemination place where 

                6    students can gain knowledge, well, the University of 

                7    California is a place where knowledge is being discovered 

                8    and imparted at the same time, those are the real 

                9    distinctions, I think. 

               10      Q   Okay.  How many campuses does the University of 

               11    California have?

               12      A   The University of California has eight campuses that 

               13    serve undergraduates, and then a ninth campus, that's a 

               14    health science center, medical school.

               15      Q   And now you have -- we have heard a lot of talk about 

               16    two of those campuses, Berkley and UCLA?

               17      A   Uh-huh.

               18      Q   Tell us the other campuses in the University of 

               19    California system.

               20      A   Sure.  They are -- most of them run down the coast, so 

               21    they are Davis, Berkley, UCLA, San Diego, Santa Barbara and 

               22    Santa Cruz, and I think that finishes them off.

               23            MR. PAYTON:  Riverside.

               24            THE WITNESS:  Riverside, sorry.  And we have a new 

               25    one scheduled to come on board, Merced, in the central 













                                                                           139

                1    valley. 

                2    BY MR. WASHINGTON:

                3      Q   Dr. Garcia, you mentioned the basic plan for the 

                4    University of California.  Is there -- is it charged in some 

                5    way to provide education for the entire State of California?

                6      A   It is.  Constitutionally, it was given the charge 

                7    of educating all students in California. 

                8      Q   And does the constitution speak in terms of 

                9    representation?

               10      A   Yes, it does,  specifically, right. 

               11      Q   Can you tell me what in general the charge of the 

               12    University of California was?

               13      A   The charge is to make sure that the University of 

               14    California in fact does serve all the citizens of the State 

               15    and the children of those citizens, and is intended to be 

               16    inclusive.  The Board of Regents have reaffied that position 

               17    on several occasions throughout the several hundred years, 

               18    the couple, 125 years or so of the University's existence. 

               19      Q   So the University of California is supposed to 

               20    represent the people of the State of California?

               21      A   Correct, correct. 

               22      Q   We have heard a lot of talk about it.  Can you tell 

               23    us, just break down for us the racial and ethnic background 

               24    of the people of the State of California today?

               25      A   Sure, sure.  I think we passed the magic point about 













                                                                           140

                1    three months ago, my demographer colleagues told me, in 

                2    which California has actually become overall a minority/ 

                3    majority state; that is, there are no majority in California 

                4    in terms of ethnic, racial or typical ways of identifying 

                5    groups in the state and in the nation. 

                6            In the K twelve sector, we have become a minority/ 

                7    majority K twelve sector about seven years ago, in which, 

                8    again, within the public school system there is no one 

                9    group of students that serve as a majority. 

               10            The fastest growing population in California is 

               11    the Latino population.  That population is growing at 

               12    approximately five to six percent per year, and again, if 

               13    we do the projections, probably in somewhere around 2015 we 

               14    will likely be a state in which the K twelve public schools 

               15    will be predominantly Latino.

               16            THE COURT:  Define Latino for me.

               17            THE WITNESS:  Sure.  We define it primarily by 

               18    asking individuals what they want to be called, so in 

               19    California, in 1992, there was a statewide study in which 

               20    randomly selected individuals who had identified themselves 

               21    as either Hispanic, Spanish surname or other Latin 

               22    background in the State of California and essentially 

               23    asked them what they would like to be called. 

               24            They most -- 60 percent of them identified 

               25    themselves as Latino, the next category was Mexican 













                                                                           141

                1    American, then Chicano, and then down the line.  So when 

                2    we refer to Latino population, we're referring to a group or 

                3    a set of population that had been identified either by the 

                4    U.S. Census as a Hispanic American, Mexican American, 

                5    et cetera, but I use the term Latino as one that in fact 

                6    individuals who come from those categories as a majority 

                7    feel is a term that identifies them.

                8            THE COURT:  But it includes all of them?

                9            THE WITNESS:  It includes all of them, right.

               10            THE COURT:  All right.  Thanks.

               11    BY MR. WASHINGTON: 

               12      Q   And Dr. Garcia, as I understand it, at this point the 

               13    white population of California is less than 50 percent of 

               14    the population as of today?

               15      A   That's correct. 

               16      Q   And now, how has that been reflected -- and let's go 

               17    before 209.  Well, actually, let me back up. 

               18            You mentioned eligibility for the University of 

               19    California system?

               20      A   Correct, right. 

               21      Q   What does it mean to be eligible for the University of 

               22    California?

               23      A   Very specifically, there are several ways to be 

               24    eligible.  The predominant way is to actually take the 

               25    required courses in the high schools that one is attending, 













                                                                           142

                1    and those courses are prescribed by the University of 

                2    California.  There are so many units in mathematics, so many 

                3    units in social studies, so many units in science, foreign 

                4    language, two years of a foreign language, et cetera. 

                5            So in order to become eligible, you must at least 

                6    have taken those courses as identified by your high school 

                7    as approved by the University of California. 

                8            The second indicator or qualifier of eligibility is 

                9    a 3.2 grade point average in those courses, so that if you 

               10    have taken those courses and have obtained a 3.2, then you 

               11    become eligible, you become part of that twelve and-a-half 

               12    percent. 

               13            How do we know that's part of the twelve and-a-half 

               14    percent?  We do studies about every five to six years, 

               15    looking at what we need to do to identify the top twelve 

               16    and-a-half percent and we have come to this set of 

               17    indicators.  A 3.2 grade point average in those classes 

               18    will roughly identify twelve and-a-half percent of the 

               19    high school graduates.

               20      Q   Dr. Garcia, before 209, can you tell me of the various 

               21    ethnic and racial minorities in California, were twelve 

               22    and-a-half percent of all of those various populations 

               23    eligible for admission to the University of California?

               24      A   No.  Approximately three percent of Latino students 

               25    were eligible to the University of California, 3.8 percent 













                                                                           143

                1    or close to that amount, and blacks, too, about 3.2 percent, 

                2    so even though -- as a matter of fact, larger portions of 

                3    the K twelve population and of high school graduates, they 

                4    didn't come close to the twelve and-a-half percent. 

                5      Q   So as I understand it, even before 209, only about 

                6    three percent of the Latinos who were graduating from high 

                7    school were even eligible --

                8      A   That's correct.

                9      Q   -- at the University of California?

               10      A   That's correct. 

               11      Q   And, I think you said, the figure was 3.8 percent for 

               12    black students?

               13      A   No, 3.8 for Latinos, 3.2 for African Americans.  

               14      Q   Now, once you become eligible to go to the University 

               15    of California, what do you have to do to get into the 

               16    University of California?

               17      A   You must, of course, fill out the forty-page 

               18    application, like anyone else.

               19      Q   Forty pages?

               20      A   Forty pages.

               21            THE COURT:  Forty pages?

               22            THE WITNESS:  It's very complex.  Let me put it this 

               23    way:  Even the Board of Regents wonders how anybody is able 

               24    to fill out the application. 

               25            But put simply, you have to apply, and you're 













                                                                           144

                1    allowed to apply to three campuses, and you must essentially 

                2    put forward the paper work for application. 

                3    BY MR. WASHINGTON:

                4      Q   And of the campuses of the University of California, 

                5    is there any differentiation between them in terms of the 

                6    educational programs and quality and so forth that they 

                7    offer?

                8      A   Many colleagues -- of course, I taught at three of 

                9    them, at Santa Barbara and Santa Cruz and at Berkley, and 

               10    I can only say that amongst the students and families 

               11    of California, there are very competitive and selective 

               12    universities.  Those three now are Berkley, UCLA and 

               13    San Diego.  And when I mean selective, I mean that very 

               14    large numbers of students are turned away even after they 

               15    fill out the application and even though they may be 

               16    eligible, they are not admitted to those institutions. 

               17      Q   And in addition to being selective, would it be fair 

               18    to say that the University of California at Berkley and UCLA 

               19    are world renowned as educational institutions?

               20      A   Yes, yes, they are. 

               21      Q   And have a number of Nobel Prize winners?

               22      A   All the indicators, scholarly, publications, 

               23    citations, the kind of things that us academics worry 

               24    about, yes. 

               25      Q   And how did -- I still want to stick on the before-209 













                                                                           145

                1    period.  How did one go about applying to University of 

                2    California at Berkley or the University of California at 

                3    Los Angeles?

                4      A   One could identify three campuses in the application 

                5    and you would list your preference, one, two, three, and 

                6    most students would essentially go right on down the line, 

                7    Berkley, UCLA, San Diego, for preferential or selective 

                8    activity. 

                9      Q   And what were the criteria for selection prior to 209?

               10      A   We used race, we used affirmative action as one 

               11    factor.  Keep in mind that the students still needed to be 

               12    eligible.  They met the eligibility requirements, so they 

               13    were in the top twelve and-a-half percent. 

               14            In addition to that, they used SAT's and GPA's, in 

               15    some cases, very formulaic, to determine admissions, so in 

               16    some campuses up to 75 percent of the class was admitted on 

               17    a formulaic basis, including indices developed by using high 

               18    school GPA and SAT scores, SAT1's. 

               19      Q   As used by the selective campuses at the University of 

               20    California, was there any kind of discriminatory impact 

               21    caused by the use of the GPA's?

               22      A   Ask that a different way.  I'm not sure I got it. 

               23      Q   What effect did the use of the GPA's have on the 

               24    eligibility -- or I'm sorry, the admissions --

               25      A   Admissions?













                                                                           146

                1      Q   -- admissions for Latino and black students in 

                2    particular?

                3      A   Then, as today, access to courses first that are 

                4    college level and acceptable courses at UC are differently 

                5    distributed amongst high schools.  We find Latino students 

                6    in particular and African American students, as well, are in 

                7    those high schools where there are less of those courses, so 

                8    their GPA with regard to those courses could, in fact, be 

                9    affected because of access to those courses, so both their 

               10    eligibility and their admissions could be affected. 

               11            Secondly, the GPA is allowed to float above a 4.0, 

               12    an A equaling 4.0, because honors courses and AP courses 

               13    are given up to 4.8 in grade level, so that a student taking 

               14    many, many AP courses or many honors courses could, in fact, 

               15    have an inflated -- what we're going to call a floated, 

               16    floating grade point average. 

               17            If you happen to be in a school in which there were 

               18    no AP courses, or had limited access to them, or where there 

               19    were limited numbers of honors courses, then you -- 

               20    essentially, GPA could have a tremendous effect in a 

               21    decision that might be made with regard to your admissions.

               22      Q   Were the honors courses equally distributed between 

               23    schools which were white and schools which were Latino and 

               24    schools which were black?

               25      A   No.  Our empirical work in the early '90's and then 













                                                                           147

                1    into the mid '90's indicated that what we called the A to E 

                2    courses, the required courses, were not distributed equally, 

                3    honors courses were not distributed equally, nor were AP 

                4    courses.  Honors and AP were significantly not available in 

                5    those places where we had highly segregated high schools, 

                6    particularly serving Latino students. 

                7            THE COURT:  California has a similar system, I 

                8    suspect, as we do, where there are school districts that 

                9    have certain boundaries and they are independent school 

               10    districts and taxed independently and run their school 

               11    districts.

               12            THE WITNESS:  That's correct, yes.

               13            THE COURT:  Can I just ask one more question?

               14            MR. WASHINGTON:  Sure.

               15            THE COURT:  Are you aware of any state that has a 

               16    statewide school district where it's run by the state and 

               17    that the money is distributed equally to all schools and 

               18    teachers are under the state control and can be transferred 

               19    to schools where they are needed and that they have the same 

               20    curriculums, is there any state that does that?

               21            THE WITNESS:  I'm not aware of that.  One of the 

               22    things I failed to mention is I was a school board member 

               23    once, and you'll remember many school board members are 

               24    locally elected and they are not in favor of state systems.

               25            THE COURT:  Oh, I know that.













                                                                           148

                1            THE WITNESS:  No, I do not know.  I do not know 

                2    the system. 

                3            THE COURT:  So each one as it's here has their 

                4    funding and everything else --

                5            THE WITNESS:  And priorities and so forth.

                6            THE COURT:  -- and has their priorities, and a 

                7    school board that runs it in the manner they believe is --

                8            THE WITNESS:  That's correct.

                9            THE COURT:  Okay.  What do you think of that 

               10    concept?

               11            THE WITNESS:  As a school, ex-school board member, I 

               12    think school --

               13            THE COURT:  No, as an educator.

               14            THE WITNESS:  As an educator, I think you probably 

               15    need a mix of state and local and federal assistance, so I 

               16    would argue -- remember, I also worked for the Feds -- so I 

               17    would think that what we need to do is look at it as all one 

               18    system rather than local, state or federal, and provide 

               19    resources as we best can across those different identifiers 

               20    or barriers or political units.  Actually, political units.

               21            THE COURT:  But also not only resources, but also 

               22    curriculum, what you're saying to me?

               23            THE WITNESS:  Yes.

               24            THE COURT:  I'm also hearing what you're saying 

               25    to me is that in certain areas, that they don't have the 













                                                                           149

                1    curriculum that they need in order to even become eligible?

                2            THE WITNESS:  That's correct.  They don't have the 

                3    curriculum, right.

                4            THE COURT:  So if there was a state curriculum, and 

                5    funding, of course --

                6            THE WITNESS:  Yes.

                7            THE COURT:  -- tell me your position, what you think 

                8    about being a former school board member, where do you see 

                9    the local control?

               10            THE WITNESS:  Sure.  I think it's the -- it's having 

               11    the diversity to implement a set of curriculum that you 

               12    think is best suited for the students that you serve, but 

               13    still reaching the standards, the high standards.  So this 

               14    is why we have now state standards in most states, which are 

               15    informed by national discussions, about what science ought 

               16    to look like at third grade, but states will adopt those 

               17    standards.  The local district, I think, their job is to 

               18    move students to those standards.  How they do that, I 

               19    think, is a local decision. 

               20            THE COURT:  So the ideal system, and I'm not -- 

               21    perhaps it could be a state system that deals with funding, 

               22    fair funding throughout the whole thing, so everybody at 

               23    least has some equality of funding, curriculum, and then 

               24    leading to the standards and --

               25            THE WITNESS:  And I would say I would add one more 













                                                                           150

                1    thing, because my own work and that of my colleagues would 

                2    suggest that you need to have people to implement those.  

                3    You need good teachers. 

                4            One of the greatest problems we have in these 

                5    segregated schools serving Latinos is many of the teachers 

                6    are not trained, so we're using what we call in California 

                7    emergency credentials, which means they have no training 

                8    in teaching, and so -- but they have responsibility for 

                9    instructing students.  So you need the professional.

               10            THE COURT:  You need the professionals?

               11            THE WITNESS:  The personnel. 

               12            THE COURT:  So if you had those on a state level and 

               13    then you had the local level where they have the input in 

               14    terms of that particular --

               15            THE WITNESS:  Specifics.

               16            THE COURT:  -- specifics, what do you think of the 

               17    concept of teachers maybe being state employees where they 

               18    can be transferred pretty much like district judges here in 

               19    the state?  You know, we're all not necessarily just in the 

               20    Federal Court, but the State Court, they're all State 

               21    employees, and if they need somebody, they just transfer 

               22    them.  You're sitting in, you know, Muskegon next week.

               23            THE WITNESS:  Right, right. 

               24            THE COURT:  Same thing with teachers, teachers who 

               25    are perhaps, you know, under state control.













                                                                           151

                1            THE WITNESS:  Sure.

                2            THE COURT:  And therefore, if one district needs 

                3    extra help on whatever the subject happens to be and they 

                4    don't have the resources, for lots of reasons, a part of it 

                5    could be geographics and, you know, and all those things, 

                6    that the State has the ability to transfer that person, 

                7    within reason, over there.

                8            THE WITNESS:  Yeah. 

                9            THE COURT:  Are those kinds of things, you think, 

               10    workable?

               11            THE WITNESS:  I don't know if the state system -- 

               12    just districts certainly have that prerogative now and 

               13    have trouble doing it.  For instance, large districts like 

               14    Los Angeles, which is huge, 700,000 students, and a large 

               15    geographical region, has difficulty in transferring these 

               16    kinds of teachers, because mainly they are professionals and 

               17    so they will leave if they don't like their job assignment.

               18            THE COURT:  But if you have a state system, they 

               19    can't leave unless they leave the state, if they want to 

               20    continue with their profession.

               21            THE WITNESS:  Yes.

               22            THE COURT:  But the real point, I think, part of it 

               23    is the bidding process?

               24            THE WITNESS:  It's all that, yeah.  It's who you get 

               25    into the profession, how they are trained.  So there are 













                                                                           152

                1    certainly alternative ways. 

                2            And you could make sure, if you don't have the 

                3    professionals, then get them the kinds of resources they 

                4    need to become the kind of professional that they need to 

                5    be, and that's really what most districts are doing now. 

                6            THE COURT:  It's difficult for a single district to 

                7    do that.

                8            THE WITNESS:  It is, of course.

                9            THE COURT:  Especially a single district that 

               10    doesn't have a lot of resources.

               11            THE WITNESS:  That's right.  No, I agree with you.  

               12    I agree with you.

               13            THE COURT  I'm sorry.

               14            MR. WASHINGTON:  No, that's fine.

               15    BY MR. WASHINGTON: 

               16      Q   Dr. Garcia, could you describe for us what the 

               17    California K through twelve educational system is now?

               18      A   Right now, you might want to call it a little bit 

               19    in crisis, and the reason it's in crisis is that so many 

               20    students are not achieving to the standards that we have 

               21    identified in California. 

               22            If you look at our financial investment in 

               23    California, we have -- in the 1950's to 1960's we were 

               24    ranked amongst the highest in the United States in 

               25    investments in education.  Now I think we're probably in 













                                                                           153

                1    the lowest decile in terms of investments in education, 

                2    and that's expenditures per student. 

                3            So if you look at our educational system, we have 

                4    essentially not invested in it, and it has shown in the 

                5    number of students, and it has -- it has gone from, in about 

                6    twenty years, from about two and-a-half million to five 

                7    million, so it's doubled in that period of time. 

                8            We have not kept up with the kinds of resources, 

                9    and most importantly, it is a very -- a system that's in 

               10    equilibrium; that is, some schools are very, very good, 

               11    and some schools are very, very not good, and we have the 

               12    continuum. 

               13            Relevant to the situation that we're discussing here 

               14    is that many of the schools that fall in that lower decile 

               15    or quintile in terms of resources, achievement, et cetera, 

               16    are also highly segregated with Latino and African American 

               17    students, and are also underresourced in terms of 

               18    expenditures per student.

               19      Q   You have mentioned some of the things that it means to 

               20    be underresourced.  Can you tell me more about what that 

               21    means?

               22      A   Sure.  I think the most critical one is the one I 

               23    raised earlier, and that is, do you have the right personnel 

               24    that is, in fact, engaged in the instruction of students, 

               25    and until we change the way schools are organized, teachers 













                                                                           154

                1    are the most critical element in the education of a student, 

                2    particularly in the public sector, and particularly for 

                3    poor kids, and Latino kids, the population I have studied 

                4    extensively.  The teacher makes a difference. 

                5            So when I say underresourced, in many cases I don't 

                6    necessarily mean the amount of dollars, I'm really talking 

                7    about the kind of individuals.  In our schools in California 

                8    it is not unusual for a student, a third grader, for 

                9    instance, who is Latino, about 50 percent of those kids will 

               10    have a teacher who is not credentialed, has not been trained 

               11    as a teacher, and is in almost every term unqualified to be 

               12    in the classroom. 

               13            In addition to that, of course, is the opportunities 

               14    for curriculum in our schools.  It's very likely that that 

               15    same third grade Latino student will not have access to the 

               16    kind of curriculum that they need, textbooks, the kinds of 

               17    science laboratories, kinds of experiences that are provided 

               18    in some of the better schools. 

               19            I think lastly, I would say it is the overall tenor 

               20    of the place where the school is that usually, and in very 

               21    impoverished locales, urban sectors or rural sectors, 

               22    for Latinos, tend to be economically depressed, high in 

               23    unemployment rates, high in incarceration rates, and all 

               24    these things, I think, would characterize the environment 

               25    of a Latino student in California. 













                                                                           155

                1      Q   And if you know, what is the graduation rate for 

                2    Latino students in California, high school graduation rate?

                3      A   We have now -- depending on how you measure it, but 

                4    if you look at it longitudinally over a period of time that 

                5    the student is actually in school, we're probably losing 

                6    about 40 percent of students who begin in the K through 

                7    twelve sector, but never finish, so we're completing about 

                8    60 percent of Latino students. 

                9      Q   Now, Dr. Garcia, could you describe for a moment the 

               10    situation for black students in the State of California and 

               11    K through twelve?

               12      A   Very similar picture.  Highly segregated schools, 

               13    similar kinds of neighborhoods.  In some cases, where 

               14    the neighborhoods are transitioning from highly black 

               15    concentrated populations to Latino populations coming in, 

               16    Oakland is a good example, right close to Berkley, but 

               17    in any case, you have similar kind of community and 

               18    socioeconomic circumstances, along with the highly 

               19    segregated situation. 

               20      Q   Do you -- would it be fair to characterize the 

               21    California K through twelve system, in general, as separate 

               22    and unequal systems?

               23      A   I think many people have characterized it that way.  

               24    I would at least be willing to do so, yes. 

               25            THE COURT:  Is this a good segue to lunch?













                                                                           156

                1            MR. WASHINGTON:  That would be fine, yes. 

                2            THE COURT:  We will stand in recess until 2:15. 

                3            (Luncheon recess taken at 1:00 p.m.)

                4                          -- --- --

                5    

                6    

                7    

                8    

                9    

               10    

               11    

               12    

               13    

               14    

               15    

               16    

               17    

               18    

               19    

               20    

               21    

               22    

               23    

               24    

               25    






Transcripts – Table of Contents


Legal Documents – Table of Contents