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