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                    UNITED STATES DISTRICT COURT
                                  EASTERN DISTRICT OF MICHIGAN
             2                         SOUTHERN DIVISION


             4  BARBARA GRUTTER,
                For herself and all others
             5  Similarly situated,

             6                 Plaintiff,

             7       v.                                    Civil Action
                                                           No. 97-CV-75928
                DENNIS SHIELDS, and REGENTS OF 

            10                 Defendants.

            12                      BENCH TRIAL - VOLUME 13
                                  MONDAY, FEBRUARY 12TH, 2001

            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:

                           Kirk O. Kolbo, Esq.,
            21             R. Lawrence Purdy, Esq.,

            22   On behalf of the Plaintiff,

                           John Payton, Esq.,
            24             Craig Goldblatt, Esq.,
                           Stuart Delery, Esq.,
                 On behalf of the Defendants Bollinger, et al,


                                           -   -   -
                 APPEARANCES (Continued):

             4                George B. Washington, Esq.
                              Miranda K. S. Massie, Esq.
                 On behalf of Intervening Defendants.














            20              Joan L. Morgan, Official Court Reporter

            21         Proceedings recorded by mechanical stenography.  
                      Transcript produced by computer-aided transcription.






             2                           I  N  D  E  X

             3   WITNESS:                                       PAGE:

             4   STEPHEN RAUDENBUSH

             5   Direct Examination by Mr. Delery                 6
                 Cross-Examination by Mr. Kolbo                  24
                 FRANK WU
                 Direct Examination by Ms. Massie                36
             8   Cross-Examination by Mr. Payton                 88
                 Cross-Examination by Mr. Purdy                  99
                 FAITH SMITH
                 Direct Examination by Ms. Massie               153


            13                               E  X  H  I  B  I  T  S

            14                                             RECEIVED

            15  Trial Exhibits Nos. 226, 227                   4
                 Trial Exhibit No. 175                        41
            16   Trial Exhibit No. 171                       178
                 Trial Exhibit Nos. 202-210                  179









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             2             Detroit, Michigan

             3                  Detroit, Michigan

             4                  Monday, February 12th, 2001

             5                  9:40 a.m.

             6                             -   -   -

             7             THE COURT:  I'm sorry I'm late.  I had an

             8   Immigration Swearing In.  I wasn't going to read the names,

             9   but I ended up having to read all the names.  Stephen did it

            10   for me.  He told me on the way back he now knows why on Ellis

            11   Island people's names are changed after he had to read all the

            12   names.  I apologize. I'm sorry I'm late.

            13             Okay, ready to roll?

            14             MR. KOLBO:  Your Honor, just briefly a couple of

            15   things.  We looked at things again this weekend, and decided

            16   that in view of the trial -- in the interest of assuring that

            17   we get finished here this week, we have withdrawn Gail Heriot

            18   as a witness.  I've informed counsel of that last evening so

            19   they are aware of that as well.

            20             THE COURT:  Okay.

            21             MR. KOLBO:  The other thing is, your Honor, we have

            22   taken care of the drawings of Professor Larntz's larger

            23   drawing.  I've shown that to counsel.  I believe there are no

            24   objections to it.  At this time we would offer Exhibit 226 and

            25   227.

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             1             THE COURT:  Both of them are saying yes so we'll

             2   accept them in that form?

             3             MR. KOLBO:  Yes, and I have two copies here.

             4             THE COURT:  Great.  I appreciate it.

             5             MR. KOLBO:  And your Honor, we will -- I think you

             6   indicated you would like someone to take custody of the actual

             7   large drawing and we would be happy to do that.

             8             THE COURT:  That's great.  Perfect.  Okay.

             9             MS. MASSIE:  Good morning, Judge.  Just a couple

            10   scheduling things. In all the shifting that's happened around

            11   today and tomorrow, we have two inefficiencies that I

            12   apologize for.  One is that our two witnesses for today won't

            13   be getting in probably in time to testify until about

            14   something like 11:00 or even 11:15.  I apologize for that.

            15   And the second thing is we don't have any witnesses who can

            16   testify tomorrow afternoon.  As it happened we filled up today

            17   -- anyway I won't go into all the logistics --

            18             THE COURT:  No problem.

            19             MS. MASSIE:  But we should without any question be

            20   done with the testimony by Thursday.

            21             THE COURT:  You have no witnesses this morning?

            22             MS. MASSIE:  This morning we do, but we may have to

            23   take a break after Professor Raudenbush.  In other words,

            24   before our people get here --

            25             THE COURT:  Not a problem.  And then tomorrow

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             1   everybody agrees we won't go at two, or any other time

             2   tomorrow?

             3             MS. MASSIE:  Correct.

             4             THE COURT:  And Wednesday we'll be off.  And then

             5   we'll go Thursday, and we'll finish up with Closing Arguments

             6   Friday?

             7             MS. MASSIE:  Right.

             8             THE COURT:  Good.

             9             MS. MASSIE:  Great.

            10             THE COURT:  It will work out perfect.

            11             Are we going to recall --

            12             MR. DELERY:  Yes, your Honor.  It will be very --

            13             THE COURT:  It can't too much.

            14             MR. DELERY:  It will be brief and expeditious.

            15             The defendants call Professor Stephen Raudenbush.

            16             THE COURT:  I know you've been sworn once but we've

            17   been re-swearing the witnesses.

            18             Do you solemnly swear or affirm to tell the truth in

            19   the matter now pending before this Court?

            20             THE WITNESS:  I do.

            21             THE COURT:  Please have a seat.

            22                S T E P H E N    R A U D E N B U S H ,

            23        being first duly sworn by the Court to tell the truth, was 

            24  and testified upon his oath as follows:

            25                         DIRECT EXAMINATION

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             1  BY MR. DELERY:

             2   Q    Good morning, Professor Raudenbush.

             3   A    Good morning.

             4   Q    You were here on Saturday for Dr. Larntz's rebuttal

             5  testimony; is that right?

             6   A    Yes, I was.

             7   Q    I'd like to talk about the main points that he raised on

             8  Saturday, just on Saturday.  And I think I'm just going to take

             9  them in the order that he raised them on Saturday.  The first

            10  thing he did was present a new chart that compared odd ratios

            11  to probabilities for various baseline probabilities; do you

            12  remember that?

            13   A    Yes, I do.

            14             MR. DELERY:  And, your Honor, this is the last page

            15   of Exhibit 225.

            16  BY MR. DELERY:

            17   Q    Does that chart as you remember it satisfy your

            18  criticisms about the difficulty of interpreting global or

            19  composite odds ratio?

            20   A    No, it doesn't.  As I've testified and as that table

            21  shows the practical meeting of an odds ratio depends on the

            22  baseline probability, and as we know, the baseline

            23  probabilities depend on the grades and test scores of the

            24  students.  What I've also found in my work is that the odds

            25  ratios themselves depend substantially on the grades and test

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             1  scores of the students.  So when both the odds ratios

             2  themselves vary as a function of those things and the meaning

             3  of the odds ratios varies as a function of grades and test

             4  scores it becomes exceedingly difficult to make a practical

             5  interpretation of the global or composite odds ratio.

             6   Q    The second topic or the second issue that Dr. Larntz

             7  addressed on Saturday was the excluded data and he presented

             8  charts, versions of the grids that he had highlighted in

             9  yellow, the cells that included data in his composite odds

            10  ratios calculations and the non highlighted cells or cells that

            11  did not contribute information to that calculation; do you

            12  recall that testimony?

            13   A    Yes, I do.

            14   Q    Now, in part of that discussion Dr. Larntz indicated that

            15  he believed that the amount data, in other words, the number of

            16  applicants in the non highlighted cells, the amount of data

            17  that had been excluded was really irrelevant to interpreting

            18  his results; do you recall that?

            19   A    Yes, I do.

            20   Q    Do you agree with that?

            21   A    I strongly disagree with that.  In fact, I would say that

            22  the amount of excluded data can be more informative than the

            23  odds ratio itself in his analysis.

            24   Q    Why is that?

            25   A    Well, in order to explain why that's true, I'd like to

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             1  present just a simple example if the Court's permission.

             2  Simple.

             3   Q    Would you like to draw it?

             4             THE WITNESS:  Could I?

             5             THE COURT:  Sure.

             6   A    In this example, we have a law school that bases its

             7  admissions decisions on just two factors:  Test scores and

             8  race.  So what I would like to do, I'll just draw a number line

             9  that gives the possible values of test scores.  They start at

            10  one twenty and they go to one eighty.

            11             Now, in this law school, starting at one eighty at

            12   the top, everyone is admitted without regard to race until we

            13   reach a certain point that I'm going to call a cut point.  At

            14   that point we find candidates who are sitting right on the

            15   border of that cut point, some of whom are minority, and some

            16   are majority, and the policy is: Admit all minorities, and

            17   some majorities.  Below that cut point, all candidates

            18   regardless of race are rejected.  So this is the reject area,

            19   and this is the admit area.   

            20             Now, what I would like to do is contrast that law

            21   school with a second law school that also uses just test

            22   scores and race in making admissions decisions.  I'll draw the

            23   same number line.  This law school has a very, very different

            24   policy.  Starting at the top it admits all minority

            25   candidates.  And it maintains that policy until we get down to

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             1   the very, very lowest possible test scores.  So in this area,

             2   admit all minorities, and admit some majorities.

             3             Now, I think we would agree that in both law schools

             4   race is taken into account in admissions.  However, the extent

             5   to which it is taken into account is tremendously different.

             6   It is a very modest extent only at the very border that could

             7   possibly have an effect, whereas in the second law school, law

             8   school number two, it has a much -- it's taken into account a

             9   great deal more because of what we see here, that all

            10   candidates in this very wide range where minorities are

            11   automatically admitted.

            12             Now the question is if we apply Professor Larntz's

            13   methodology can we discern the difference between these two

            14   law schools?  If we apply that methodology what will happen in

            15   the case of law school number one is that all of the data

            16   except at the border --

            17             THE COURT:  But see some of your premises -- in the

            18   first one, it says admit all minorities at that point.  The

            19   second one says all minorities at a different point; isn't

            20   that what you're saying?

            21             THE WITNESS:  In this one here, your Honor?

            22             THE COURT:  Right -- no, that one first.  All

            23   minorities at that point.

            24             THE WITNESS:  Yes, just in that border.  Just in

            25   that little area --

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             1             THE COURT:  The second one says, admit all

             2   minorities throughout the whole --

             3             THE WITNESS:  Except unless the grade --

             4             THE COURT:  The reason -- and I want to hear what

             5   you have to say, but that's not what happened here.  The

             6   University of Michigan takes the position we don't admit all

             7   of the -- all of them.

             8             THE WITNESS:  Right, I agree.

             9             But what I want to show is here's a case where we

            10   have all the relevant information.  There's no missing

            11   information.  We know the test scores, we know the race.  Can

            12   this methodology reveal the extent to which race is taken into

            13   account in this simple situation.  If it can't, how can we

            14   except that methodology to reveal the extent to which it's

            15   taken into account in a much more complex situation --

            16             THE COURT:  Explain it to me because --

            17             THE WITNESS:  So what will happen is -- using

            18   Professor Larntz's methodology, all of the candidates in this

            19   -- where they are all rejected and all of the candidates here,

            20   where all are admitted, will be discarded because they have

            21   the same admissions decision regardless of race.  They provide

            22   in his words, no comparative information. The odds ratio will

            23   be computed simply for this group where there is, in fact, a

            24   difference, where some people are being admitted.  And what he

            25   would find would be an infinite odds ratio in this case.

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             1            Now, when we go down to the second law school, what

             2   would happen is there is only a small fraction of the data

             3   that would actually that would actually be discarded because

             4   here is the small area where everyone is rejected regardless

             5   of race.  Admits and rejects are occurring in this area.  This

             6   would have -- this area, here, would have the "comparative

             7   information" in his words.  We would compute the odds ratio

             8   and we would find an infinite odds ratio.

             9             In both cases, we would find an infinite odds ratio.

            10   What would actually be far more revealing about these cases is

            11   the fraction of information discarded.  The fact that

            12   virtually all of the data is discarded in case number one

            13   reflects the fact that this policy in case number one applies

            14   to very few students.  Race has no effect on these decisions.

            15   It has no effect on these decisions, they're discarded.

            16             THE COURT:  How about -- see -- I understand what

            17   you're saying, but his whole theory was to what extent is race

            18   because the University of Michigan takes a position that it's

            19   very little, you know, it's not a trump card in the words of

            20   Mr. Payton several times.  And so this we know it's not very

            21   little. We know that race is a predominant factor in making

            22   decisions.  So his analysis is different than your analysis.

            23             THE WITNESS:  Well, in these two cases, simplified

            24   as they are, we have all the knowledge we need. Race is taken

            25   into account, I would say, very little in this first school.

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             1   Only if you're at the very border --

             2             THE COURT:  We don't need a statistician to tell us

             3   that because they've already told us that.  One of your

             4   premises is that race is taken into consideration as a major

             5   factor.

             6             THE WITNESS:  Right.  See, here's the way we

             7   evaluate a methodology.  We set up a simple situation where we

             8   know the truth.  We have all the relevant information, and we

             9   evaluate the capacity of the methodology to answer -- to

            10   discover the what we know.

            11             THE COURT:  I'll never be able to discuss it on your

            12   level.  I'm discussing it as a layperson who's never taken a

            13   statistic class.  But I do know that -- just by listening to

            14   Dr. Larntz, and I'm not arguing his position, I'm not saying

            15   it's good or bad, what I'm saying is the premise is different

            16   because he is trying to figure out to what extent is race

            17   taken into consideration.  And in your analysis here we know

            18   to what it's taken into consideration.  So we're not comparing

            19   apples to apples.

            20             THE WITNESS:  Well, what I'm showing you here, what

            21   I'm trying to argue here is that his analysis cannot reveal,

            22   the odds ratio cannot reveal the extent to which race is taken

            23   into account because it can't discriminate between two cases.

            24   In the first case it's taken into account very little.  In the

            25   second case, it's taken into account an enormous amount. And

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             1   in both cases the odds ratios are the same.  And what is

             2   actually far more relevant to the evaluation of these two

             3   cases is the fraction of data that he would discard.

             4             THE COURT:  Okay.

             5  BY MR. DELERY:

             6   Q    How does that, Professor Raudenbush, tie back to the

             7  highlighted grids that Dr. Larntz had here on Saturday?

             8   A    Well, obviously the Michigan case is more complicated,

             9  but in the highlighted grid a large fraction of the cases,

            10  especially a large fraction of the minority cases, were

            11  discarded.

            12             Those are cases where the admissions decision is

            13   being made without respect to race.  The fact that so many

            14   candidates, forty percent, are having decisions made that

            15   don't take into account their race is very relevant to the

            16   issues in this case.

            17   Q    Is the approach that you just took here in terms of

            18  setting out two simplified hypothetical cases using that to

            19  evaluate a methodology, is that a standard practice in your

            20  field?

            21   A    That's the standard practice. To evaluate a methodology

            22  we need to know whether it can recover the distinctions that

            23  are important when we know what the truth is.  If it can't do

            24  it then, you can't discover the reality when we know the

            25  reality and when we have all available information, we can't

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             1  expect that methodology to give us the answer about the extent

             2  o which race is taken into account in a much more complexed

             3  situation where we don't know the information. It's not going

             4  to work better when we have less information.

             5   Q    Why don't you take the stand again, Professor Raudenbush.

             6  And -- I guess just one final question before we move onto the

             7  next topic, and that is, did Dr. Larntz's testimony on Saturday

             8  about the excluded data and the highlighted charts, does that

             9  change your opinions at all concerning the excluded data issues

            10  that you've discussed --

            11   A    No, actually, sitting and thinking about it, actually

            12  during the testimony it made it even more clear to me how

            13  important this excluded data actually is in looking at his

            14  results.

            15   Q    Okay. Let's move now to the third issue from Saturday,

            16  and it's related to the issues of assumptions. On Saturday, Dr.

            17  Larntz said that he thought an analysis that used all of the

            18  data, that didn't exclude any of the data, would have to be

            19  based on a model with more assumptions than his was. Do you

            20  think that's right?

            21   A    It depends strongly on what the broad methodological

            22  goals of the analysis are.  In my analysis where I was

            23  assessing the causal impact of the policy of taking race into

            24  account the issue of discarding data simply didn't arise.  Just

            25  referring back to this case, my methodology would attempt to

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             1  predict the probability of admission for everyone in law

             2  school, number one, based strictly on test scores, and to see

             3  how closely those predictions correspond to what actually

             4  happened in practice, and we would find that they correspond

             5  very closely, where as in the second case, they would not

             6  correspond closely so I would argue that my methodology could

             7  sharply distinguish between these two cases.  The issue of

             8  discarding data just doesn't come up when that's the goal.  We

             9  use standard methods, and we don't need to discard data.

            10   Q    Do you think that Dr. Larntz made fewer assumptions than

            11  you do?

            12   A    Well, I wouldn't necessarily say that he made fewer or

            13  more.  We all have to make assumptions when we do statistical

            14  analyzes.  What we need to do is to be as explicit about what

            15  those assumptions are, to whenever we cann to test the validity

            16  of those assumptions and then to evaluate the possible impact

            17  of those assumptions on our results.  My criticism -- or one of

            18  my criticisms, I should say of Professor Larntz's analysis is

            19  that -- he makes a very strong assumption, namely, that the

            20  same global odds ratio applies to everyone regardless of grades

            21  and test scores.  And I actually did a series of analyzes to

            22  assess that, and I found that assumption not to be tenable.

            23  And I believe, and I think he would disagree that the impact of

            24  that could be important in this case.

            25   Q    On that last point I think Dr. Larntz did say on Saturday

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             1  that he thought that while the assumption might not technically

             2  be true, the assumption of a uniform odds ratio might not be

             3  technically be true, it wasn't important to evaluating his

             4  results; do you disagree with that?

             5   A    Well, I disagree, and I think I could represent why I

             6  disagree if we could just briefly refer to the chart that we

             7  had on Saturday.

             8   Q    Dr. Larntz's chart?

             9   A    Dr. Larntz's chart, yes.

            10   Q    Okay.  This is Exhibit 226.

            11   A    What this chart was really building up -- maybe I need to

            12  get up because I can't see it --

            13             THE COURT:  You may.

            14             MR. DELERY:  Can you see it, your Honor.

            15             THE COURT:  I'm fine.

            16             MR. DELERY:  Okay.  Thanks.

            17   A    Is that the lower bounds of these constant variables for

            18  the odds ratios are large numbers.  And I think that was really

            19  the crucial point.  If that assumption is false, that is, if

            20  the offs ratios vary as a function of where you with respect to

            21  grades and test scores, then for some students and possibly

            22  many students these lower boundaries should be much lower than

            23  these numbers.  And that in a practical sense is probably the

            24  key potential problem.

            25             THE COURT:  When you say "much lower" could they

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             1   have used that in the figuring?

             2             THE WITNESS:  Well, I have -- in the analysis I did,

             3   I did some inspection.  Yes, there are certainly cases where

             4   these are much, much lower than these.

             5             THE COURT:  When you say "much" give me a relative

             6   figure.

             7             THE WITNESS:  Okay, in one analysis I did, the

             8   average odds ratio was twelve.  But in my analysis I also

             9   estimated how much the odds ratio --

            10             THE COURT:  You used a different methodology.

            11             THE WITNESS:  I used a different methodology.

            12             THE COURT:  Again, comparing apples to oranges.

            13             THE WITNESS:  It only makes one -- it only really

            14   has one really important difference and that is it allows the

            15   odds ratios to vary over the cells of the table just.  It's

            16   still a logistic regression.  It introduces that possibility

            17   that the odds ratio would not be invariant across the cells of

            18   the table.

            19  BY MR. DELERY:

            20   Q    And using that method -- I'm sorry, I'm sure that you

            21  finished --

            22   A    Oh, yeah, so while the odds ratio was twelve, the

            23  standard deviation of the log odds was about one, and that

            24  leads to odds ratios that are much smaller than twelve, even as

            25  small as one and two.

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             1             THE WITNESS:  Now, I didn't highlight that, your

             2   Honor, because as you can tell I'm not really buying into the

             3   idea of using the odds ratio to --

             4             THE COURT:  I understand that.  You made that very

             5   clear.

             6             THE WITNESS:  I just to make sure.  I really was

             7   just doing it evaluate his assumptions.

             8  BY MR. DELERY:

             9   Q    Let's go now, Dr. Raudenbush, to the last of the major

            10  issues from Saturday and that was the stability of the odds

            11  ratios across the years.  On Saturday, Dr. Larntz said that he

            12  thought that your concern about instability across the years

            13  might be due to a computational error that you had made. Do you

            14  remember that?

            15   A    I do remember that.

            16   Q    Was he right?

            17   A    Well, actually on Saturday, he solved a puzzle that has

            18  been in my mind for some time.  As he pointed out the standard

            19  output for a logistic regression analysis includes regression

            20  co-efficient which is in a log metric, a standard error, and

            21  then what we call a Z test which is a test of significance.  I

            22  had been confused by his reports because his reports were a

            23  little bit non standard.  They had an odds ratio, and then

            24  another column that was labeled "standard deviation."

            25             Now, it certainly would be possible to compute for

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             1   each odds ratio a standard error in the metric of the odds

             2   ratio. It would not be conventional and it would not be the

             3   optimal way to proceed, but it could be done.  And I wasn't

             4   sure whether he had used that method or the more standard

             5   method from the results of his report.  So I asked you to

             6   pursue this issue in the deposition of Professor Larntz.  I

             7   mean, this is a very different situation from how we usually

             8   operate.  In our profession we would simply ask each other

             9   these questions, but in an adversarial thing, I have to try to

            10   get you to find out the answer. So I read the deposition, and

            11   my reading of the deposition suggested to me that he was

            12   actually using the odds ratios and the standard errors in that

            13   metric.  And on Saturday, he made it very clear he was not

            14   doing that.  So I was actually under a false -- operating

            15   under a false assumption as to what he was actually doing.

            16             What I was able to do then, now that I could see how

            17   he actually operated in the log odds metric, is to recompute

            18   the stability, a test of stability using a very simple test.

            19   I would be happy to show you how it's computed.  It can be

            20   done on a calculator.  It would take about fifteen minutes,

            21   but -- it wouldn't take fifteen minutes to explain it, but it

            22   would take maybe fifteen minutes on a calculator. It's a very

            23   simple procedure.  I think it would be useful to just tell you

            24   what the result is --

            25   Q    Yes.

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             1   A    It's a Chi square test of homogeneity very commonly used

             2  in this area.  And the Chi square value I computed was 22.9.

             3  The probability associated with that was less than .001.

             4   Q    And that's the P value?

             5   A    That's the P value.  And what that says is that there is

             6  statistically very significant heterogeneity across the years

             7  in the log odds ratios which is rather than the odds ratios

             8  themselves.

             9   Q    From that what do you conclude about your earlier

            10  criticism concerning the instability of the odds ratios?

            11   A    I remained concerned about the instability for the

            12  following reason:  When we look at the process of admissions,

            13  it seems to be stable. When we look at the average

            14  probabilities of admission, they're stable.  The results are

            15  bi-causal analysis, year-to-year, in the exhibits, in my own

            16  testimony.  If you review those you'll see the results are

            17  stabling. We see here quite significant heterogeneity and we

            18  also see very significant heterogeneity across the models that

            19  are also in the exhibit of my testimony.  And what worries me

            20  is when we see heterogeneity in a model, when we don't see it

            21  in more basic summaries of the data is that something is going

            22  on in the methodology that is creating or perhaps identifying

            23  the instability.

            24   Q    Okay.  When you were here last month -- a few weeks ago

            25  -- you talked about something called the standard error or the

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             1  difference between -- through the odds ratios is what I'm

             2  talking about the instability -- and not a test of homogeneity

             3  that you just mentioned.  Why did you use the other one then

             4  and this one then?

             5   A    Well, it's much easier to explain if I have two numbers

             6  asked, are these numbers different than it is to explain the

             7  test of homogeneity, and I thought that would be a useful way

             8  to go.  But the test of homogeneity is the better test because

             9  it doesn't -- Professor Larntz made the point when you select a

            10  big difference from a whole set of possible differences it you

            11  have -- it's hard to get -- you have to be careful to get the

            12  right P value.  And so to simply test the homogeneity across

            13  the six years is a more straightforward statistical way of

            14  doing this although it's more difficult to explain.

            15   Q    And you reached the same bottom line conclusion both ways

            16  is that correct?

            17   A    Yes, I did.

            18   Q    Okay. Well, Professor Raudenbush, I want to ask you just

            19  one final question:  We've heard this testimony back and forth

            20  between you and Dr. Larntz, and my question is:  Based on your

            21  twenty-five years as an educational statistician and having now

            22  heard the rebuttal testimony in your view is there a way to

            23  make a sense of the areas of real dispute you and the

            24  significance of those areas?

            25   A    Well, let me try to summarize the disagreements as I see

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             1  them. We both would agree that there is an association between

             2  race and admissions controlling for test scores and grades.

             3  And that finding would not be surprising given the stated

             4  policy of the law school which does take race into account.  We

             5  would disagree about the extent to which that relationship

             6  varies as a function of grades and test scores and we would

             7  seemingly disagree on how important that variation is.  We

             8  would disagree about the instability of the results that we've

             9  just described or the importance of that.  Those in my view,

            10  however, would be secondary disagreements in my view. The key

            11  disagreement is the one we've discussed earlier.  From a broad

            12  methodological point of view I am convinced that one cannot

            13  compute odds ratios that will reveal the extent to which race

            14  is taken into account in admissions. And I did say that in my

            15  testimony.  I think in statistics we have to do what we can do

            16  and limit what we do to what we really think we can do.  And

            17  what I did -- what I think we can do is give an assessment of

            18  the impact of the policy on those who apply.  What's far more

            19  difficult to do from a statistical point of view than is to

            20  understand the process, the causal process, the process is

            21  cognitive process in the admissions office that generate that

            22  impact. So we can access the impact, but to say what extent

            23  it's taken into account requires what we know more about the

            24  process than we actually know.  And that's really the key

            25  disagreement.

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             1   Q    And in your view do you have any doubt as to what the

             2  correct answer is?

             3   A    Well, I think I've made it clear that I am convinced that

             4  we cannot use the statistical data and certainly not the odds

             5  ratio to reveal in this case the extent to which race is taken

             6  into account, but we can with -- with an amount of uncertainty

             7  -- there is some uncertainty that I have tried to quantified,

             8  we can access the causal impact of the policy.

             9             MR. DELERY:  I no further questions, your Honor.

            10             THE COURT:  Intervenors, any questions?

            11             MS. MASSIE:  No.

            12             THE COURT:  Plaintiff?

            13             MR. KOLBO:  Yes, sir.

            14                            CROSS-EXAMINATION

            15  BY MR. KOLBO:

            16   Q    I just have a few questions.

            17             I'm sure I'll struggle with some of the language

            18   here, but I'll do my best.

            19             Dr. Raudenbush, on the first subject matter with

            20   respect to the drawing that you've got there, am I correct

            21   first of all with respect to number 2, you would agree that

            22   this is a case in which race is taken into an extensive -- to

            23   a great degree?

            24   A    I would.

            25   Q    So it's something that one can ascertain from example

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             1  number 2 even though you had a calculated odd ratio infinity.

             2   A    Yes.

             3   Q    And the second -- or in the first example, it's your

             4  conclusion that this is a case in which race is not taken into

             5  account to a great extent.

             6   A    To a great extent, that's correct.

             7   Q    And your testimony as I understand it, one wouldn't be

             8  able to discern the difference between those two scenarios

             9  because in both cases you get a calculated odds ratio of

            10  infinity; right?

            11   A    Well, we can discern the difference between those cases,

            12  but not using the approach of discarding data and then

            13  calculating an odds ratio. The reason, by the way, that we can

            14  discern the difference in this case is because we have all the

            15  available information. There are only two things that can go

            16  into the admissions decision.

            17   Q    But as I understood your testimony, and correct me if I'm

            18  wrong, one of the problems was looking at odd ratios in that

            19  case is that in both cases you've got infinite calculated odd

            20  ratios; right?

            21   A    It's not because they're infinite.  Even if they were

            22  just the same, let's say they were both twenty-three, the fact

            23  that the odds ratio comes out the same in both cases, and could

            24  easily come out the same, shows that the methodology can reveal

            25  the difference between two cases, one in which there's a great

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             1  extent and one in which there is a lesser extent.

             2   Q    But one could also in that scenario, in addition to the

             3  odds ratio analysis, one could also look and see that there is

             4  a difference between these two cases; right, because one would

             5  know that in most cases, under number one, either you have all

             6  admits or all rejects, and the other a very small area where

             7  you have admit all minorities and admit only some majority

             8  students.

             9   A    That would be the crucial piece, would be the amount of

            10  data that were discarded by Professor Larntz which are those

            11  cases in which all are rejected or all are admitted.  That is

            12  actually a much more informative, I'll say, piece of evidence

            13  about these two cases than the odds ratio.

            14   Q    And you can actually discern looking at one or two that

            15  they're different in that respect; correct, in terms of the

            16  amount of data that you call discarded?

            17   A    You would certainly -- yes, that would be a decisive --

            18  in this limited case, where we have all the information, that

            19  by itself would tell us an enormous amount and to what extent.

            20   Q    And the data that we have in this case including the data

            21  that Dr. Larntz submitted graphically we can see very clearly,

            22  can't we, how many cases -- how many applications fall in this

            23  category of admitting all students of all races?

            24   A    We can see -- the problem is that we don't know all of

            25  the factors that are creating those decisions.  If we assumed

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             1  -- if we're willing to assume that grades and test scores are

             2  the only thing that count other than race, we could do the kind

             3  of analysis that I have here. But I don't think any of us would

             4  make that assumption.

             5   Q    But my question is:  By looking at the data as Dr. Larntz

             6  has presented it, and the data that we have here, we can

             7  actually determine what percentage of files are those under

             8  scenario number one in which all students, of all races, are

             9  admitted; true?  We can see what the size of that group is;

            10  true?

            11   A    We can -- you mean conditioning or controlling for grades

            12  and test scores?

            13   Q    Yes.

            14   A    Controlling for grades and test scores we can certainly

            15  assess -- see what cells have all admits or all rejects, that's

            16  right.

            17   Q    We could see how large of a representation that is across

            18  all the grid; correct?

            19   A    Yes, we can.

            20   Q    And we could do the same analysis with respect to the

            21  number of students who are rejected, whether all minorities or

            22  all --

            23   A    Controlling for what we know, again, just grades and test

            24  scores, yes.

            25   Q    Okay.  And would you agree that there is a very

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             1  substantial number of files in the University of Michigan case

             2  in which there are comparative differences, that is, in which

             3  there are some minority students admitted, and some majority

             4  students admitted, less than all of those groups, in which we

             5  can calculate the differences in probabilities?

             6   A    We can calculate the differences in probabilities -- we

             7  can calculate the differences in probabilities I should add for

             8  every, every person who applies in all test scores and grades.

             9  We don't need to discard any different information in order to

            10  calculate the two probabilities -- proportion, I should say.

            11             Where we come in discarding data is when we compute

            12   an odds ratio where -- which prohibits certain calculations

            13   because of the division by zero.

            14   Q    But scenario number one, for example, you've got here,

            15  you don't want to assume any cases, do you, in which there are

            16  less than a hundred percent minority students admitted and less

            17  than a hundred percent of majority students admitted; true?

            18   A    I'm sorry, could you please rephrase that?

            19   Q    Example number one, doesn't account for any situation in

            20  which there is less than a hundred percent minority students

            21  admitted, and less than a hundred percent majority students --

            22   A    Right.  In scenario number up there, everything to the

            23  left of that little bubble, all are rejected regardless of

            24  race.

            25   Q    Right, and you're assuming no students in which the

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             1  grouping is such as: fewer than one hundred percent minority

             2  students admitted, and with comparable grades and test scores,

             3  fewer than all majority students admitted.  You made no

             4  provision for that in example number one.

             5   A    For an occasion in which every minority student is

             6  admitted and every majority student is rejected?

             7   Q    No, no, that's not what I --

             8   A    Sorry.

             9   Q    I'm sorry if I wasn't clear.  You have not provided in

            10  your model number one or model number two, for that matter, for

            11  situations in which less than one hundred percent --

            12   A    Oh, I see --

            13   Q    -- of minority --

            14   A    Right -- excuse me --

            15   Q    Can I just finish?  You have not provided in your model

            16  here for either one or two scenarios in which less than one

            17  hundred percent minority students are admitted.  And for

            18  comparable majority students where less than a hundred percent

            19  of majority students are admitted; true?

            20   A    That assumption follows though exactly from saying there

            21  are only two factors.  If there are only two factors that can

            22  affect the admissions decision, then if it's not test scores,

            23  it can only be race because that's the only other factor.  Now,

            24  I agree that's oversimplified.  But under that oversimplified

            25  assumption, what I'm saying about all minorities admitted in

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             1  the bubble would follow from the assumption.  We can certainly

             2  imagine a situation in which other things were done.  Like, you

             3  could flip coins within that bubble, or you could assign

             4  different probabilities, but I was trying to create a very

             5  simple example.

             6   Q    Well, your example just assumes just test scores and

             7  race; right?

             8   A    Just -- actually, this example simply assumes test scores

             9  and race.

            10   Q    Okay, test scores and race.

            11   A    Right.

            12   Q    But you're assuming no cases in which just looking at

            13  test scores and race, no cases in which less than a hundred

            14  percent minority students are admitted, and less than a hundred

            15  percent majority students are admitted with comparable tests;

            16  true?  You're not even accounting for that in your example.

            17   A    If only -- right.  That logically follows from the

            18  assumption that those two things can count, yes.

            19   Q    And what the odds ratios would tell us here, whether

            20  they're infinite or whether they're less than infinite in these

            21  scenarios it would be telling us something about the groups of

            22  students where there's comparative information; correct?

            23   A    I strongly disagree with the idea that there is a

            24  principle of comparative information that tells which data we

            25  can look at and which data we cannot look at.  The principle of

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             1  comparative information that Professor Larntz described is a

             2  principle only within the methodological framework that he

             3  selected for analyzing these data.

             4   Q    But am I correct that the calculated odd ratios that you

             5  have here in this case, infinite, those calculated odd ratios

             6  relate only to students for which there is comparative

             7  information, whether there are differences; correct?

             8   A    In -- once -- yes, once you have decided to use the odds

             9  ratio, they can't be computed except in the bubbles of the two

            10  cases, right.

            11   Q    That's all I have with respect to that.  A couple of

            12  questions on modeling and assumption.  Do I understand that

            13  your analysis with respect to what you did in this case, you

            14  created -- you devised a model that modeled the entire grid; is

            15  that right?

            16   A    Yeah, let me try to explain.  I did -- sir, my primary

            17  thing that I did was a causal analysis which I've described and

            18  I think we all understand. And then as a secondary activity, I

            19  did some analyses to check certain assumptions that Professor

            20  Larntz was making.  And in that second analysis I did do what

            21  you said, yes.

            22   Q    You modeled the entire grid?

            23   A    That's right.

            24   Q    And did you have to make certain assumptions in modeling

            25  the entire grid?

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             1   A    Yes, I did --

             2   Q    But if you were to do an analysis simply on a

             3  cell-by-cell basis you wouldn't have to make any assumption

             4  based on modeling the entire grid; correct?

             5   A    Oh, you have make -- absolutely, you do have to make

             6  assumptions especially if you come up with a composite odd

             7  ratio, you have to assume that the underlying two odds ratios

             8  are the same for every cell.

             9   Q    Would you agree that the fewer parameters you have means

            10  the more assumptions that will be in the model?

            11   A    The fewer parameters the more assumptions?

            12   Q    Yes.

            13   A    It might be true, but it's not necessarily true what you

            14  say.  The number of assumptions is not strictly a function of

            15  how many parameters are in the model.

            16   Q    Just the last few questions on the last point that was

            17  covered here and that was with respect to the -- your opinions

            18  with respect to instability over years.  You were here

            19  yesterday when Dr. Larntz went through the calculations or the

            20  difference in terms of standard deviations between the 1997 and

            21  2000 year?

            22   A    Yes.

            23   Q    Would you agree that your testimony suggesting that the

            24  standard deviation separating those two numbers -- would you

            25  agree that it would not represent a number by merely eleven --

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             1   A    Yes, now that I understand exactly what he did, I agree

             2  that's true.

             3   Q    You agree with calculation?

             4   A    Yes, the 3.7 was the more relevant number.

             5   Q    And your testimony as I understand it was you simply had

             6  a misunderstanding based on your reading of Dr. Larntz's

             7  deposition?

             8   A    Yes.

             9   Q    Were you produced -- did Mr. Delery produced to you as

            10  I've produced to him, Dr. Larntz's computer output in this

            11  case?

            12   A    Yes, I was.

            13   Q    Did you review it and consider that?

            14   A    I did.  I actually looked very, very carefully through

            15  that output.  Professor Larntz does his own programming.  I

            16  received hundreds and hundreds of pages of output. The

            17  regression output doesn't come in a standard format. What you

            18  see in his output primarily are simply large blocks of numbers.

            19             Now, Professor Larntz, I have no doubt knows exactly

            20   how to translate those numbers into the relevant tables in his

            21   report.  I could not make the translation.  I was not able to

            22   make the translation.

            23   Q    So you didn't see any columns in there for his different

            24  analyses where he had a column for one -- one colum of

            25  regression co-efficient?

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             1   A    There were regression co-efficients.  There were several

             2  -- there were many analyses and there were hundreds of them.

             3   Q    And did you see columns for represented values of

             4  standard error?

             5   A    Yes.

             6   Q    And I am correct it was determined standard deviation --

             7  and I probably get this wrong, and correct me, but you divide

             8  the regression co-efficient by the standard error; is that

             9  right?

            10   A    That would give you what we call a Z test.  It's not

            11  normally labeled standard deviations.

            12   Q    Is it sometimes?

            13   A    I've never seen it labeled that way until this -- until I

            14  saw this report.

            15   Q    Did you ever make any attempts to take a look at some of

            16  the numbers that showed up on Dr. Larntz's computer output and

            17  see if they corresponded to the standard deviation value as

            18  reported in his report for different years?

            19   A    I did.

            20   Q    And you couldn't find any correlation?

            21   A    Well, as I've said, there were hundreds of pages of

            22  output.  There were many, many regressions.  And he had well

            23  over one hundred predicted variables in every equation.  So

            24  every single regression he did produced hundreds of regression

            25  co-efficients and I -- maybe I didn't spend enough time or do a

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             1  more -- perhaps I could have found those if I spent an enormous

             2  amount of time. But it was very difficult for me to reproduce

             3  what was his reports from the output that he sent me.  I didn't

             4  make the effort.

             5             MR. KOLBO:  I have nothing further, your Honor.

             6             THE COURT:  Thank you.  Anything else?

             7             MR. DELERY:  Nothing further, your Honor.

             8             THE COURT:  Thank you, Doctor.  We appreciate it,

             9   very much.  Sorry to have taken up your weekend.

            10             THE WITNESS:  I'm glad it's over.  Thank you.

            11             THE COURT:  Thank you, very much.

            12             Ms. Massie, it's my understanding your next witness

            13   will be here at eleven?

            14             MS. MASSIE:  If we could make it at 11:15.  I'm

            15   sorry about the delay, but I'm sure we will be able to get

            16   through the two people today.

            17             THE COURT:  Sure.  I understand.  We'll do it.

            18             Okay, we'll stand in recess in the case until 11:00

            19   a.m.

            20            (Court recessed, 10:25 a.m.)

            21            (Court reconvened, 11:45 a.m.)

            22             MR. DELERY:  Your Honor, one housekeeping matter

            23   while we're waiting.  We would like to do the same thing with

            24   Dr. Raudenbush's drawings that we with Dr. Larntz's --

            25             THE COURT:  Yes.

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             1             MR. DELERY:  So we'll mark it as Exhibit 228 for

             2   identification now, and we'll translate it into a small copy

             3   and move it in.

             4             THE COURT:  Perfect.

             5             MR. DELERY:  Okay.  Thank you, your Honor.

             6             MS. MASSIE:  Hi, Judge.  Our next witness is

             7   Professor Frank Wu.

             8             THE COURT:  Okay, Professor Wu.

             9             Good morning.

            10             MR. WU:  Good morning.

            11                           F R A N K     W U ,

            12        being first duly sworn by the Court to tell the truth, was 

            13  and testified upon his oath as follows:

            14                            DIRECT EXAMINATION

            15  BY MS. MASSIE:

            16   Q    Hi, Professor Wu.

            17   A    Good morning.

            18   Q    If you could spell your name for the record, please.

            19   A    Sure. Frank, F-r-a-n-k, Wu, W-u.

            20   Q    Tell us about the teaching you have done or are

            21  contracted to do if you would, sir.

            22   A    Sure.  I'm currently an associate professor of law at

            23  Howard University in Washington, D. C. where I've taught since

            24  1995.  I also serve as the director of our clinical program,

            25  and I supervise students practicing in the D. C. Superior

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             1  Court.  I teach civil procedure, and I teach federal courts on

             2  some of their subject.  I have previous taught as a fellow at

             3  Stanford University.  I've taught civil rights at American

             4  University, in one of its summer sessions.  I would be a

             5  scholar and residence teaching again on Asian American civil

             6  rights at Eeps Spring College in about one month.

             7   Q    I understand you got a JD, a law degree from the

             8  University of Michigan.

             9   A    That's right, class of 1991.

            10   Q    Professor Wu, how long have you been doing academic work

            11  on questions relating to Asian Americans, civil rights, and

            12  social policy?

            13   A    Probably for about fifteen years or so.

            14   Q    And how long have you been doing academic work on

            15  questions related more specifically to Asian Americans and

            16  affirmative action?

            17   A    At least ten years.

            18   Q    That work has involved extensive publications.

            19             MS. MASSIE:  I'd like to move Professor -- well, the

            20   publications are in his CV which I know the Court has, at tab

            21   175 in the exhibits.

            22  BY MS. MASSIE:

            23   Q    You have a book that's about to be published that's a

            24  comprehensive treatment of the question of Asian Americans and

            25  civil rights as I understand it.

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             1   A    That's right.  My book entitled, "Yellow, Civil Rights

             2  Beyond Black and White" is in the catalog basic books scheduled

             3  for publication later this year. It's just about done.  I just

             4  have to revise a few more chapters.

             5   Q    You have numerous chapters in other books on Asian

             6  American and public policy.

             7   A    That's right.

             8   Q    A number of law review articles, articles in the "Asian

             9  American Policy Review.  A law case book which I understand is

            10  not published yet, but it's forthcoming.

            11   A    That's right.  I have a co-authored case book concerning

            12  Asian Americans and civil rights with a focus on the

            13  Japanese-American Internment experience.  It was written with

            14  four other law professors, and we have a contract with Aston

            15  Books, one of the leading case book publishers.  That also

            16  should be out later this year.

            17   Q    A chapter either just published or forthcoming in Asian

            18  American politics?

            19   A    That's right.  I have a chapter, a final chapter, in a

            20  book that was just published by Stanford University Press and

            21  Woodrow Wilson Center, edited by Historian Gordon Chan.  It's

            22  entitled, "Asian Americans and Politics."

            23   Q    And you've recently been appointed by the Washington, D.

            24  C. City Council to serve on the city's Human Rights Commission

            25  and on -- in part so that your expertise on that is of Asian

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             1  American civil rights and social policies will be made

             2  available to the Commission as a whole, is that right?

             3   A    That's right.  I'm the first and only Asian American to

             4  serve on that Board.  I was nominated by the mayor and

             5  confirmed by the City Council.

             6   Q    You've testified before Federal Governmental entities on

             7  questions involving Asian Americans and civil rights, and

             8  specifically, Asian Americans and affirmative action including

             9  the judiciary committee of the House of Representatives and the

            10  United States Civil Rights Commission?

            11   A    That's right.  I've testified before the House in 1995,

            12  and the Civil Rights Commission in I believe 1998.

            13   Q    Admist Is a very long list of public appearances you've

            14  hosted a PBS series entitled "Asian America" for some time?

            15   A    That's right.  I've hosted about thirty episodes of that

            16  series which is syndicated by PBS.

            17   Q    And have also done a number of invited academic

            18  presentations at universities all across the country on a range

            19  of subjects involving Asian Americans civil rights and social

            20  policy?

            21   A    That's right.  I spoke to the University of Texas,

            22  University of Nebraska, Smith College, and a few others that I

            23  can't recall.

            24   Q    Is it fair to say, Professor Wu, that you're one of the

            25  foremost nationally recognized experts on issues of Asian

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             1  Americans civil rights and social policy?

             2   A    Well, at the risk of being immodest, I would say, yes, I

             3  have written very widely, and probably have studied it more

             4  extensively than just about anyone else who looks at these

             5  issues.

             6             THE COURT:  You know, Frank Lloyd Wright -- did you

             7   ever read the story about Frank Lloyd Wright, who testified

             8   for the first time in his life, and they said -- the attorney

             9   said something like, tell us about you in terms of your

            10   ability to architecture and so forth.  And he said, well, I'm

            11   the best architect in the world.  And then he looked over to

            12   the Court and said, I'm under oath, your Honor.

            13             THE WITNESS:  Thank you, your Honor, I'll use that

            14   next time.

            15             THE COURT:  There's a whole book of those kinds of

            16   things that are really interesting.  When we take a break

            17   remind me to tell you about the police officer one which is my

            18   favorite.

            19             MS. MASSIE:  I have a police officer one, too.

            20             THE COURT:  I guess we all could write a book on

            21   police officers.

            22             MS. MASSIE:  With that, I'll offer Professor Wu as

            23   an expert on Asian Americans civil rights and social policy

            24   and also move into evidence his expert report which as I said

            25   is tab 175.

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             1             THE COURT:  Any objection by anyone?

             2             MR. PURDY: No, your Honor.

             3             THE COURT:  He may testify as an expert.

             4             (Trial Exhibit number 175 received into evidence.)

             5  BY MS. MASSIE:

             6   Q    Professor Wu, partly in response to a question that the

             7  Court asked of another witness who was very well qualified, but

             8  somewhat less qualified in this particular area than you, I'd

             9  like to start by asking you to tell us all who are Asian

            10  Americans?

            11   A    Well, the term Asian American" is usually used to refer

            12  to some ten million or more Americans who can trace their

            13  ancestry to Asia, to any more than some two dozen countries in

            14  Asia, or to a Pacific Island.  It includes people of diversed

            15  backgrounds.  Some people, relative newcomers to the United

            16  States, some people who may be third, fourth, or fifth

            17  generation Californian.  People of different ethnicities,

            18  different faiths, different linguistic backgrounds, different

            19  walks of life.  But what they have in common is their Asian

            20  heritage, Asian ancestry.  And that makes them a minority in

            21  the U. S.  According to the 2000 census, it looks like Asian

            22  Americans comprise approximately four percent of the nation's

            23  population.

            24             I think to get a real sense though of who Asian

            25   Americans are it might be best for me to just tell you about a

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             1   few who I know, have known.

             2             My father-in-law, for example, my late

             3   father-in-law, who passed away recently at the age of

             4   seventy-five, was born in Wakayama, in a small fishing village

             5   in Japan in 1905.  At the age of sixteen, Shinsuke Izumi,

             6   that's S-h-i-n-s-u-k-e, I-z-u-m-i, persuaded his parents that

             7   they should let him come to the United States to join his

             8   older sister who already lived here and with her husband ran a

             9   shoe store in Los Angeles.  So he boarded a boat and after a

            10   arduous of many months arrived in the United States where he

            11   enrolled as a relative youngster at a business college in Los

            12  Angeles.

            13             While he was there he felt pressure to have an Anglo

            14   name so he picked the name Edwin, following the dapper of King

            15   Edward who was much in the news.  So Eddie as he was then

            16   known after graduating from college was unable to find work

            17   that suited his qualifications because in Los Angeles, in

            18   California, in the United States at that time, there just

            19   weren't many opportunities for people of Asian descent.  So he

            20   opened a small supermarket, a fruit stand in Hollywood.  And

            21   that was his vocation until World War II broke out.

            22             When World War II broke he, along with a hundred and

            23   ten thousand other American citizens and residents of Japanese

            24   were rounded up by their own government and were incarcerated

            25   in internment camps because there is a fear that they would be

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             1   -- be aliens.  That's what they were deemed to be, and that

             2   they would be disloyal and proved to engage in acts of

             3   sabotage or things of that sort.

             4             Well, when he had the opportunity to leave

             5   internment camps to work as an army translator he jumped at

             6   that opportunity.  And from his work as an army translator,

             7   later went on to become topographer for the Defense

             8   Intelligence Mapping Agency where he worked for the rest of

             9   his life.  He is an example of someone who is an Asian

            10   American.

            11             My own father who was born in Mainland China near

            12   Shanghai who then moved to Taiwan as a youngster was offered

            13   an opportunity to go to college in the U. S. And his older

            14   brother had come to the U. S. before him, to Iowa.  So my

            15   father followed his footsteps.  He had a scholarship.  In the

            16   late '50s he moved to snowy cornfields of Iowa City.  And

            17   there because there was segregation and because Chinese

            18   students couldn't find housing some six or seven of them lived

            19   in a one-bedroom apartment with no frig, no real appliances,

            20   and in the winter they would keep their food outside to keep

            21   it fresh, and there was plenty snow which he had never seen

            22   before.

            23             Well, my father who played on an intramural

            24   basketball team while he was in college, a basketball team

            25   called the Orientals who then went on to join Ford Motor

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             1   Company, and to start a family, here in this area, first

             2   living in Dearborn, and who then help found the Detroit

             3   Chinese American Engineers Association.  And who would win,

             4   and was very proud of winning his bridge tournament and his

             5   tennis tournament.  He is an example of an Asian American.

             6             My friend Kaying Yang, that's K-a-y-i-n-g, Y-a-n-g,

             7   an immigrant who arrived in this country as a child, who is of

             8   Hmong, that's H-m-o-n-g, whose family had served the United

             9   States military in it's covert operations in Southeast Asia

            10   and who in recognition of their service were brought over in a

            11   dramatic effort to bring them out after the fall of Saigon who

            12   then moved to Denver where as she told me just a few months

            13   ago as we traveling together where she encountered racial

            14   discrimination, but didn't know what it was, whereas she and

            15   her brother, some of her cousins and other friends went to

            16   school and had kids, called them Chinc and Gook and say they

            17   should go back to where they came from, that they weren't

            18   welcomed, who was spat upon, who had her hair pulled, beaten

            19   up on a daily basis.  Who now having gone to college where she

            20   studied Asian and American studies and learned that there were

            21   other people like her, that her experience was not unique that

            22   she was not alone.  And that there was a name that we give to

            23   this phenomenon and that it was not her fault.  She now runs a

            24   non profit, a leading non profit group in Washington, D. C.

            25   called the Southeast Asian Resource Action Center. She's an

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             1   example of an Asian American.

             2             It's easy though to think that all Asian Americans

             3   are people who have just moved here, who are:  Fresh off the

             4   boat" as people sometimes say.  But Asian Americans also

             5   include people of second, third, fourth and fifth generation

             6   whose ancestors have worked, for example, on the railroad in

             7   the 1880s, whose ancestors were in California before it was a

             8   state, and before it joined the Union, who were in the south,

             9   in the U. S. as part of a fantastic scheme to import Chinese

            10   laborers shortly after 1864, to compete with the recently

            11   freed Black slaves.

            12             There are people who can trance their ancestry back

            13   more than a hundred years from this country, people such as

            14   the Japanese American soldiers, the Nisei, N-i-s-e-i, meaning

            15   the second generation soldiers of the Army 440 Second Unit

            16   that fought in World War II, in the segregated armed forces,

            17   the most highly decorated unit on a per man basis to have

            18   served in the U. S. Army.  A unit which lost eight hundred me

            19   in rescuing the so-called Lost Battalion, that were behind

            20   enemy lines. Those were native-born American citizens who by

            21   birth, by birth right were part of this country, they along

            22   with their families in locked up in internment camps.  They

            23   are also Asian Americans.

            24             By brothers and I, born in the United States are

            25   Asian Americans.  The Hmong, who like Kaying Yang, who are

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             1   younger, were born in Wisconsin, in the Twin Cities or

             2   elsewhere, across the American midwest, after they arrived,

             3   some of whom I've met a year ago when I spoke at Wisconsin, at

             4   its law school, they're also Asian Americans. They're native

             5   born Asian Americans.

             6             So Asian Americans include people of Korean descent,

             7   of Indian descent, of Philippino descent, of Pakistani

             8   descent.  It includes people from Tonga, people from Guam.

             9   And what we have in common is an experience, an experience in

            10   the United States of being called Chinc, and Jap, and Gook, of

            11   being told you should go back to where you came from, of being

            12   asked where are you really from, as if we're going to go back

            13   some place.  Being asked how do you like it in our country,

            14   when are you going home.  Of being told, my, you speak English

            15   so well, which I'm always attempted to rely, why, thank you,

            16   and so do you.  That's the experience that defines what it

            17   means to be Asian American.  It's a set of experiences that

            18   there's no easy definition, and I think it depends on each

            19   particular person, each particular community. But most

            20   sociologists, census would agree that there is a distinct set

            21   of communities that we can properly call Asian American.

            22   Q    Professor Wu, when did the term Asian American -- and

            23  also I'll ask you in a minute about the term Asian Pacific

            24  American -- when did that term come into being if I understand

            25  is an aggregate term reflecting the many national peoples who

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             1  are included within the category?

             2   A    Well, those two terms are roughly synonomous.  They first

             3  came into use in the late 1960s.  There was a time -- certainly

             4  when my parents came where, when they were called Oriental,

             5  which congers up images of exoticism, of the Far East notion of

             6  otherness.  And that's why that term is no longer usually used.

             7  It's favored.  And Asian American was invented.  It was an

             8  effort by people by to claim an identity for themselves, to

             9  proclaim that this is who we are.  We want to use this name

            10  which shows and recognizes our roots as well as our American

            11  status which says not only to ourselves, but to others that we

            12  are here to stay as part of this country.

            13             So Asian American first started to be used as a term

            14   in the late 1960s.  There were student movements in

            15   California.  At San Francisco State University, for example,

            16   that followed the lead, like the Black Power Movement as they

            17   looked at African-American students as they organized, and

            18   protested, and were part of the multi-racial civil rights

            19   movement. And they said, we, too, can do that.  And so at San

            20   Francisco State University in the late 1960s you saw people

            21   suddenly stand up and proclaim that they were in favor of

            22   Yellow power, and they invented the term Asian American.

            23             Now as it happened, the census categories changed in

            24   1970, as they often do, and the census began to offer the

            25   option of checking off Asian American. So you see two

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             1   different strains here in this history that come together that

             2   leaves this term Asian American.

             3             The use of the term Asian Pacific American is meant

             4   to embrace the many different islands from people also come,

             5   that also share this common experience.

             6   Q    With that introduction I'd like to ask you to turn your

             7  attention to questions about anti-Asian, anti-Asian Pacific

             8  American racism.  Can you tell us about the forms of

             9  discrimination that persist against Asian Americans in the

            10  United States?

            11   A    Sure.  I would divided this into different types.  First,

            12  there is the straightforward racial prejudices and

            13  discrimination and bias.  The sort of thing that a consensus

            14  now recognizes is wrong.  And, second, a more a subtle form of

            15  discrimination.  A form of discrimination that may be in some

            16  instances unconscious, or unintentional or even on its surface

            17  not look like bias, but if you examine it a little closer, more

            18  clearly reveals itself.  Let me start though by talking about

            19  the type.

            20             Asian Americans face straightforward, plain old

            21   racial discrimination.  You see that, for example, in the

            22   glass ceiling.  If you look at the federal government's 1995

            23   glass ceiling study, what you find is that in many categories

            24   Asian American individuals who have the same qualifications as

            25   their white peers, the same educational background, working in

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             1   the same types of jobs, earn less money.  So when everything

             2   is controlled for, what you find is there are racial

             3   disparities, disparities that can be explained by nothing

             4   other than racial backgrounds.  So they face the glass ceiling

             5   at the work place where even though they may have a Ph. D.,

             6   they simply can't make as much money.

             7             There's a sociologist, Joyce Tang, who has studied

             8   phenomenon and has taken a look at Asian Americans working in

             9   technical fields.  And she has found that many of the reasons

            10   that people offer turn out to be false.  Sometimes people say,

            11   well, it's probably because all these Asians are coming from

            12   someplace else, maybe they don't have good language skills.

            13   Well, she did a study where controlled for nativity.  She

            14   looked at people born in the U. S. native-born Asian American,

            15   and compared them with native-born Caucasian.  And what she

            16   found was not only did you still see these same disparities,

            17   equally -- well-educated, qualified people, yet mysteriously,

            18   at companies that presumably are not actively discriminating,

            19   at companies that did hire these people, but they're just not

            20   getting promoted, just not getting paid at the same rate.

            21             In fact, in some instances, she found a real oddity,

            22   that Asian Americans who are native born in many instances

            23   make less than whites who are foreign born. So it has nothing

            24   to do with whether or not you're born in the country.  And it

            25   doesn't have to do with language.

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             1             She found that what some people say about Asians not

             2   being interested in management, that turned out to be false as

             3   well. Sometimes you hear people, well, Asians are more

             4   interested in the technical aspects of these things. They want

             5   to be engineers.  They don't want to managers. They don't want

             6   to vice president. They don't want all that hassle stress.

             7   They don't want to rise in the company.

             8             Well, by using extensive surveys, that's simply

             9   false.  Asian Americans working in these technical fields are

            10   just like their white peers.  They do want to be in

            11   management. They'd like to be in charge.  They wouldn't mind

            12   being the vice president, and they're just not offered those

            13   opportunities.

            14             Again, this happens not in every instance but often

            15   enough that structurally, systematically a pattern emerges and

            16   you see it again, and again, and again in rigorous, empirical

            17   research.  That's one example of glass ceiling.

            18             Another example is if you look at housing.  Housing

            19   segregation for Asian Americans exist.  It is not quite as bad

            20   as a housing segregation for African-American, it is housing

            21   segregation. Asian American of the same socio-economic status

            22   as the whites who own houses in neighborhoods where they'd

            23   like to buy can't buy into those neighborhoods quite often.

            24   Asian Americans tend to live in segregated area.  Again -- not

            25   entirely, but you still find a persistent housing segregation.

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             1             You also see hate crimes. We've seen a rise in hate

             2   crimes towards Asian Americans, ranging from the 1982 brutal

             3   beating of Vincent Chin who was killed by two out-of-work auto

             4   workers, who took a baseball bat, a Louisville slugger to his

             5   head and just beat his head until he was senseless and in a

             6   coma and died a few days later. Those out-of-work auto workers

             7   who pursued Vincent Chin from a nightclub where they had all

             8   been, blamed him.  They had called him -- you'll have to

             9   pardon my language, your Honor -- they called him you dirty,

            10   fucking Jap as they were killing him. And that case I think

            11   stands a symbol for many Asian Americans of the sort of

            12   violence that can still occur to someone who is no different

            13   than anyone else other than because of their racial

            14   background.

            15             Those two people who killed Vincent Chin, who

            16   received probation, and a three thousand seven hundred dollar

            17   -- three thousand seven hundred eighty-dollar fine said that

            18   they blamed him because they were out-of-work auto workers,

            19   and they thought it was because of people like him that they

            20   were out of work.

            21             So you see hate crimes.  You see other instances.

            22   We saw in the 1980s and 1990s a gang, a white gang in New

            23   Jersey that attacked South Asian women.  They called

            24   themselves the "Dot Busters" in reference to the popular

            25   movie, "Ghost Busters" and they would assault Asian women,

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             1   basically picked out at random, but selected because of their

             2   ethnic background.

             3             So you see hate crimes. You see these different

             4   forms of racial discrimination that persist to this day.  You

             5   no longer -- and I hope we don't see anything like the

             6   Internment again, we don't see the sort of discrimination

             7   perpetrated by the government itself, but you see widespread

             8   societal discrimination in instances which sometimes are

             9   condoned, are condoned because people think, well, it's

            10   different than other racial discrimination. These are

            11   foreigners, they're not American, they don't have the same

            12   rights.

            13             Now, there is a second type of racial discrimination

            14   though that Asian Americans face.  And it's more subtle, but

            15   in some ways every bit as dangerous.  There is a myth called

            16   the model minority myth.  There's a stereotype of Asian

            17   Americans. I think in order to understand how this stereotype

            18   works, I first have to describe a stereotype.  At first it

            19   might strict people as quite a positive stereotype.  It's the

            20   stereotype of the Asian immigrant who comes here penniless

            21   with nothing more than the shirt on his or her back, but who

            22   by dent of hard work, confusion work, ethnic, good values, by

            23   opening a small business, that they operate seven days a week,

            24   twenty-four hours a days rises, that even though they speak

            25   broken English, though they have a Ph. D. that they can't use,

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             1   and have to work running a drycleaners or a small store, they

             2   nonetheless persevered and succeed.  And then you see their

             3   children become the whiz kids, the proteges who play the

             4   violin at the age of five, and become valedictorian of the

             5   high school, so when the top ten of the graduating class are

             6   read off it's Chang, and Kim, and Betel.  You see these images

             7   of Asian Americans taking over college campuses, winning all

             8   the scholarships, and going off to Harvard or Yale or Stanford

             9   and breaking the curve in calculus or physics.  Starting to

            10   use science experiments at the age of thirteen. They're whiz

            11   kids, geniuses.

            12             You see this positive image of Asian Americans as

            13   the so-called model minority.  We see that in newspaper

            14   articles.  You see it in television programs.  There was a

            15   "New York Times" article that was entitled "Asian Going To the

            16   Head of the Class" for example.  In some of my published work,

            17   I cite dozen of examples through the '80s and '90s of this

            18   very positive glowing image of Asian Americans as super

            19   successful.  "Fortune Magazine" dubbed them the "super

            20   minority."  So it's this notion that somehow that Asian

            21   Americans have triumph.  They represent as another magazine

            22   writer put it, "the triumph of the dream."

            23             You might look at this and say what could possibly

            24   be wrong with this, this is a wonderful celebration of

            25   opportunity.  It shows how well Asian Americans are doing.  I

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             1   guess there are three things wrong with this, and I'd like to

             2   go through them in order.

             3             First, this is a stereotype, it's false.  Second, if

             4   that's not enough this causes the backflash for Asian American

             5   who should be suspicious of any stereotype not matter how

             6   positive because of what it can conceal.  Third and finally,

             7   it often is used as it was when it was first mentioned by the

             8   "New York Times Sunday Magazine" an article by William

             9   Peterson in 1966, to make an explicit comparison between Asian

            10   Americans and African-Americans to say in effect, they made

            11   it, why can't you.

            12             Let me start with the first problem.  The stereotype

            13   is simply as a factual matter wrong.  It is not an accurate

            14   stereotype.  Now, truth be told some Asian Americans have been

            15   successful. They deserve praise. They deserve credit.  I mean

            16   to take nothing away from them.  But if you take a look at

            17   Asian Americans what you find is that Asian Immigration is

            18   selective.  Before 1965, before comprehensive changes to the

            19   laws that were passed in 1965, there were tiny quotas for

            20   Asian ethnic groups.  For example, a total of no more than one

            21   hundred and eighty-five individuals of Japanese descent could

            22   come into the U. S. per year before 1965.  So what you found

            23   before 1965, people who came here tended to be well-to-do, or

            24   had already gone to school and got a great deal of schooling

            25   or both, well-to-do and people who had at least gone to

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             1   college if not had already gotten a master's or Ph. D., tended

             2   to people who represent the cream of the crop of their home

             3   land. This was a phenomenon we all know "brain trained."  They

             4   would come here and get Ph. D.s' and do well.

             5             So when you look at Asian immigrants what you

             6   realize is they're not representative, they're not

             7   representative in Asian.  They represent the luck few, the

             8   ones who had the means to get out, or the talent to get out.

             9             Now, that's important. It's important because it

            10   means that the Asian Americans once they naturalized and

            11   stayed here where their children have advantages.  One of the

            12   way you can predict how well educated a person will become is

            13   to look at how well educated their parents were before them.

            14   In fact, look at how well educated their father was.  That's

            15   one of the most robust social science factors that you can

            16   look at if you want to get, if you just take any person,

            17   you're going to ask what is the likelihood this person will

            18   complete college, or this will get a master's, or a Ph. D.

            19   One of the ways to figure out the answer to that is to ask,

            20   well, what was the last year of schooling their father

            21   completed.

            22             Let me give you a concrete example.  If you look at

            23   South Asians, what you find is according to some studies as

            24   many as two-thirds of them arrived in the United States with

            25   better than a bachelor's, with at least a master's, a Ph. D.

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             1   or an M. D.  So this creates a terrible skewing of our

             2   picture.  That means you're comparing Asian immigrants and

             3   Asian Americans who are doctors when they arrive here against

             4   a general U. S. population that haven't completed college,

             5   that has just slightly on average done more than completed

             6   high school.

             7             So the first reason that this image is false is

             8   because it wrongly suggests that all of the success is due

             9   solely to opportunities in the United States.  And, again,

            10   don't get me wrong.  This is a wonderful country. I am very

            11   pleased that my parents came here, and that I was born here.

            12   It does offer tremendous opportunity, and some people are able

            13   to avail themselves of it, but it would be highly misleading

            14   to suggest that Asian Americans by themselves as a racial

            15   group represent in some way the triumph solely of the system

            16   here.  They represent instead a complicated table of factors

            17   some of which have to do with who we open our doors to, and

            18   who we welcome.  That's one reason it's false.

            19             Another reason it's false is because the most often

            20   cited statistic that you hear is family income.  You sometimes

            21   hear as you did when the 2000 Census came out that Asian

            22   Americans have attained parity.  That average income for a

            23   family of Asian Americans is equal to or greater than the

            24   average income o, f whites. This is extraordinarily misleading

            25   for several reasons.  Let me detail some of them.

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             1             First of all, Asians are geographically

             2   concentrated.  A majority of Asian Americans live in

             3   high-income, high-cost states.  Hawaii, California and New

             4   York constitute those three states, constitutes -- if not a

             5   majority then certainly a plurality of the Asian American

             6   population in the United States.  Well, as it happens, those

             7   three states also have people of all racial backgrounds a

             8   higher than average family income.  There are just not as many

             9   Asian Americans in South Dakota or Alabama so when you look at

            10   Asian American family income it's terribly inflated because of

            11   this geographic skewing.

            12             Asian American family income is also distorted by

            13   the fact that on average, Asian Americans have larger families

            14   with more wage earners.  The typical Asian American family has

            15   two wage earners.  People of color tend to have families with

            16   more wage earners.  I mean, sometimes the Asian American

            17   families with extended families living in one household,

            18   everyone putting their income into a common pot.

            19             Now, clearly, it doesn't make sense to compare a

            20   household where yo have both adults working to make an income

            21   of sixty thousand, let's say, against a household where you

            22   have one wage earner making fifty-nine thousand, and then to

            23   say that the two-earner household at sixty thousand is somehow

            24   better off than the one wage earner household at fifty-nine

            25   thousand.  It may be true, but it's true only in the most

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             1   superficial and misleading sense.

             2             Now, Asian Americans also tend to be much more

             3   enterpreneural, tend to engage in small businesses endeavors

             4   that are much higher risks. So what you find with Asian

             5   Americans if you just look at the simple question of income,

             6   Asian Americans have not obtained parity. They have obtained

             7   parity only when you ignore the different factors.  When you

             8   look at individual Asian Americans as the 1995 Federal

             9   Government Glass Ceiling Study did, what you find and get is

            10   comparing individual Asian Americans controlling for education

            11   level and occupational field, that Asian Americans make less

            12   money on average than whites. It's unambiguous data so this is

            13   just false in the sense that if you look at the condition of

            14   Asian Americans, most Asian Americans are not the super

            15   minority.

            16             There are also significant ethnic differences, true

            17   that Chinese Americans and Japanese Americans have incomes

            18   that cluster toward the top if you do an ethnic breakdown.

            19   But you also find that Southeast Asians, you find Phillipinos

            20   and you find others clustered toward the bottom. Their

            21   socio-economic status us much more similar to that of

            22   African-Americans than it is of White Americans.  So there are

            23   tremendous ethnic variations as well.

            24             So the stereotype is like most stereotypes, thin and

            25   flimsy and just doesn't stand up to scrutiny.  So no matter

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             1   what you think public policy should be if you simply ask

             2   yourself where are Asian Americans, what is their status, this

             3   notion that Asian Americans have made it and are well-to-do,

             4   is incorrect.

             5             Second, this image leads to backlash. Every part of

             6   the positive stereotype is correlated to the connected

             7   counter-part, and it gets flipped around very easily.  Let me

             8   offer a few examples.  You sometimes here Asian Americans

             9   described as hard-working.  Well, hardworking very quickly

            10   becomes unfair competition.  You sometimes hear Asian

            11   Americans described as good at math and science.  I'm often

            12   told, oh, could you fix my computer.  You must be good with

            13   computers.  Yet, that quickly turns into they're nerdy and

            14   geeky, and can't be lawyers, they can't be managers, they lack

            15   of people's skills.  You sometimes hear Asian Americans

            16   praised for strong families, family values, a nuclear family

            17   that stays together.

            18             Yet that can be turned around.  Asian Americans the

            19   next can be criticized for being too clannish, too ethnic, too

            20   insular, not mixing enough, self- segregating.

            21             Let me give you concrete examples of when these

            22   turnarounds occur.  They tend to occur when there's some sort

            23   of economic crisis.  They did when the Chinese Exclusion Act

            24   was passed in 1882, when the federal government for the first

            25   time started to regulate the borders in a comprehensive

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             1   fashion.  The first set of laws they passed were racial laws,

             2   and they barred Chinese from coming to the United States, and

             3   eventually a work steady created an Asiatic barred zone so

             4   that people so that people of Asian descent could not come to

             5   the United States.  Those Asians who were in the U.S couldn't

             6   naturalize because in order to naturalize you had to be a free

             7   white person. And despite two Supreme Court challenges the

             8   Ozawa case and the Thind case, in 1922, and 1923, in which a

             9   Japanese person and a South Asian argued we are white, those

            10   claims were turned down.

            11             So what you found when the Chinese Exclusion Act was

            12   first being proposed there was the working man's party in

            13   California.  It was an early labor movement led by Dennis

            14   Currney.  And he organized rallies in sandbox.  And his

            15   organizing cry was that Chinese must go. And the central claim

            16   that the white laborers made because at that time San

            17   Francisco was more than one third Asian, and San Francisco was

            18   majority foreign born so that even the people who weren't

            19   Asian, the people where of white ethnics, German, Italian, or

            20   Polish, were foreign born and not native born. They

            21   distinguished though the Asians and they said, the Asians were

            22   competing unfairly, they work too hard.  They said things such

            23   as well, white workers can't just eat a bowl of rice a day.

            24   The Chinese workers are inhuman.  You're going to reduce to

            25   their standard.  If we have the Chinese, we can't have the

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             1   whites in California.  California must be either White or

             2   Yellow. Things like that.

             3             And what you found was that the previous image, the

             4   Asian immigrants as hard-working, that commended them for the

             5   work of railroad where some thirteen thousand were hired and

             6   organized into racial crews to compete against Irish laborers

             7   to see who could lay more track in a day.  That very same

             8   notion that the Chinese laborers would work diligently, work

             9   hard and not complain was turned against them, and then they

            10   were said to compete unfairly.

            11             You see the same thing with this notion of being too

            12   nerdy or too good at math or science and not good with other

            13   skills because that's the excuse most often offered when Asian

            14   Americans ask well, why am I'm not being promoted to

            15   management, why am I not being groomed, why I am not being

            16   trained?  The assumption is that they're only good at math and

            17   science.

            18             You hear stereotypes, you know, in the

            19   1980s -- Brace Ellis, for example, published a novel, "Less

            20   than Zero" where he referred to UCLA which was then becoming

            21   predominantly Asian American, he said, UCLA, those words,

            22   UCLA, stand for United Caucasian Lost Among Asians.  You heard

            23   people refer to MIT as Made in Tiawan.  And these were

            24   comments by white students who said, well we can't compete

            25   these Asian students, they're just too good, they're just too

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             1   nerdy, and too geeky.

             2             Gary Trudeau did a series of "Doonesbury Cartoons"

             3   where he satirized this phenomena.  We saw for example, the

             4   white president, then president of Stanford University tell a

             5   story about how when -- white students sign up for classes in

             6   different technology fields and go to th class and they find

             7   out that there are too many Asian American students, their

             8   only choice is to drop the class because they figure they

             9   won't be able to do any better than to get a C.

            10             So you see example, after example, where every

            11   positive trait is correlated exactly to the negative trait. So

            12   that to be called hard-working as a double edge.

            13             Another reason the model minority myth is dangerous

            14   is because it is explicitly a comparison that's used not to

            15   praise the Asian Americans at all but to insult African

            16   Americans.

            17             In 1966, a sociologist named William Peterson taught

            18   at Berkeley wrote an article, "Success Story, Japanese

            19   American Style."  It was a popular article for the "New York

            20   Times Sunday Magazine."  He later followed it up with a book.

            21   This same old article has been called the most influential

            22   article ever written about Asian Americans.  I think that's an

            23   accurate of this single article.  In it, Dr. Peterson was very

            24   sympathetic.  He talked about the Internment.  He reviewed and

            25   gave a summary of Japanese-Americans in the United States from

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             1   the early part of the century.  He said they had done so well

             2   that they had overcome every obstacle that race could put in

             3   front of them.  Then he said, I'm quoting here, "They examples

             4   stands in contrast to what we might term problem minority."

             5   And you didn't need the author there to nod and wink at you to

             6   see who those problem minorities were because he then went on

             7   to say that the only Japanese Americans who weren't successful

             8   were juvenile delinquents who ran with as he put it, Negro and

             9   Mexican gangs.  So he very clearly set up this contrast

            10   between Asian Americans as the successful minorities and

            11   African Americans as the unsuccessful ones.

            12   Q    Is there anything about the content of stereotype against

            13  Asian Americans that interacts specifically with the practice

            14  of law?

            15   A    Absolutely.  One of the popular stereotype of Asian

            16  Americans is the sort of thing that I used to hear as a child

            17  growing up.  I still hear it now and then.  A personal example,

            18  you sometimes hear people say oh, Asians, you are all so

            19  polite.  I was once at a convention of the AAJA, The Asian

            20  American Journalists.  This was in 1987, in Los Angeles. There

            21  was a guest speaker who had been brought to talk to us.  He

            22  opened up by saying, you know, I'm so pleased to be here, to

            23  speak before all of you Asian Americans because you are all so

            24  polite. And at that moment, everyone in the room hissed him.

            25  To be polite, that seems like a compliment, oh, you're so

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             1  polite.  But that's just something else.  It suggests being

             2  submissive, not aggressive enough for courtroom work. There's a

             3  notion and -- I've been counseled on this.  I was counseled on

             4  it when I was younger and still in law school by people who

             5  thought that maybe an Asian American wanting to do trial work

             6  might not be the best choice.  You might not be able to impress

             7  a judge or a jury.  You might not be able to get clients

             8  because there's this notion, oh, you're so polite, we'd rather

             9  have someone who is going to be gutsy, who is going to in there

            10  and be a fighter.

            11             So these stereotypes certainly do effect people who

            12   want to go into law who happen to be of Asian background.

            13             There is still a notion that Asian Americans are

            14   deficient with verbal skills.  You know one of the reasons I

            15   think I'm told you speak English so well is because there is

            16   the expectation what when I open my mouth I'll confuse my R's

            17   and my L's, that I won't be able to articulate myself and put

            18   together a sentence or a paragraph.

            19             I know when I was thinking about going to law school

            20   my parents told me because they had gleaned from their

            21   workplace, because they had been told, they had been

            22   criticized because they do confuse their R's and the L's that

            23   they lacked the verbal skills and they just weren't going to

            24   get very far, they weren't going to get ahead because they

            25   couldn't communicate.  People just didn't feel as comfortable

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             1   around them.  Even though my parents would practice their

             2   handwriting, and have me correct their grammar, I as an

             3   eight-old-child reading my father's business correspondence,

             4   trying to edit it, to ensure that it had perfect English.

             5   Well, this notion is I think so pervasive that my parents had

             6   troubled with it.  They counseled me you should not become a

             7   lawyer. People aren't going to take you seriously as a lawyer.

             8   That's not what Asians are good at.  And it's not true.

             9   Certainly in Asia there are lawyers, and they're perfectly

            10   good at what they do. It just happens that Asian immigrants

            11   coming to a culture which is foreign to them, speaking a

            12   language with is new to them.

            13   Q    Do those stereotypes of passivity and submissiveness also

            14  have an impact on the fields of politics for Asian Pacific

            15  Americans?

            16   A    Sure. There are far fewer Asian Americans in politics

            17  than you might there would be given how many Asian Americans

            18  there are in Hawaii, in California and elsewhere.  There are

            19  Asian Americans who are quite successful.  Two members of the

            20  cabinet, for example. Several members of Congress.  And there

            21  Asian Americans who have run for office and who have won.  Gary

            22  Locke, the governor of Washington State, for example.  Asian

            23  Americans who have run in districts that are predominately

            24  white, who have appealed and crossed racial lines.  Michael Wu

            25  formally of the city council of Los Angeles who ran for mayor,

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             1  almost.  There are Asian Americans who do pursue politics but

             2  politics is also another realm where like law, language is

             3  important.

             4             I think there's that same sense that Asian Americans

             5   are quite often talked about yet, are absent from the debate.

             6   They're not in the room.  They're not speaking. Asian

             7   Americans, for example, frequently appear in affirmative

             8   action cases, but are the margins.  And to my knowledge, the

             9   first time that someone of Asian descent has testified in an

            10   affirmative case of this nature where a challenge has been

            11   brought.  Even though if you look at cases, you'll see

            12   footnotes here and there, Asian Americans mentioned, we're

            13   talked about, but we are ourselves lack a voice. And that

            14   sometimes is internalized.

            15             You know, my mother sometimes calls me.  I

            16   occasionally have the good fortune to do something at a public

            17   event on television or radio.  And she calls me and after she

            18   tells me that I need a better haircut, she says, to me, you

            19   know, Frank, you should stop being so controversial, it's bad

            20   for your career.  And I don't have the heart to tell her I've

            21   made a career out of being controversial. But she has

            22   internalized the same sentiment, the sentiment that it's

            23   better to be quite, to not rock the boat because that was the

            24   strategy that was successful before then, and it's part of the

            25   stereotype of being polite.

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             1             So it's harder for Asian Americans to articulate a

             2   minority viewpoint. There is a doubt about our right to speak.

             3   Q    You mentioned the question of affirmative action and how

             4  it relates to Asian Americans. That's the next main topic I

             5  want to cover with you. There's been a bunch of testimony in

             6  this case so far about Asian Americans and affirmative action,

             7  much of it -- or I should say some of it, tending to suggest

             8  that Asian Americans are victims of affirmative action

             9  policies.  Let me ask you first if you could address whether

            10  Asian Americans have benefited from affirmative action.

            11   A    Absolutely, Asian Americans have benefited in at least

            12  three different ways.  Let me go through those three ways.

            13  First, Asian Americans have benefited because we are directly

            14  included in most but not all affirmative action programs.  We

            15  are included where it is appropriate for use to be included.

            16  The federal government contracting set aside programs. Asian

            17  Americans are included.  Asian Americans are included in

            18  affirmative actions that were entered as a matter of court

            19  decree in California.  In the cases of San Francisco involving

            20  contractors, and cases involving the police department and the

            21  fire department.  Asian Americans are included, are

            22  beneficiaries and have benefited as much if not more than other

            23  people of color.

            24             THE COURT:  I'm sorry, but we're going to have to

            25   break that this time.  I have a few scheduling matters that I

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             1   must attend to.

             2             MS. MASSIE:  That's fine, Judge.

             3             THE COURT:  Okay, we'll stand in recess until 2:00

             4   p.m.

             5              (Court recessed, 12:45 p.m.)


             7                  (Afternoon session)

             8                     -- --- --

             9             THE COURT:  Professor?

            10             THE WITNESS:  Thank you.

            11             THE COURT:  I'm reminded that you have used 25

            12   and-a-half hours, so take that into consideration in terms of

            13   your questioning and so forth.

            14             MS. MASSIE:  Thank you, Judge.

            15             THE COURT:  Okay.

            16  BY MS. MASSIE:

            17   Q    Professor Wu, could you check your microphone?

            18   A    Sure.  Seems like it's working.

            19   Q    Before the lunch break you were talking about the rise in

            20  hate crimes and racist attacks against Asian Americans in

            21  California following the abolition of affirmative action there.

            22  I would like to ask you now about a different subject that

            23  captures something about the relationship of Asian Americans to

            24  affirmative action, and that is the level of support in the

            25  Asian American community and amongst Asian American civil

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             1  rights organizations for affirmative action.

             2             Have APA's, Asian Pacific Americans, come out for or

             3   against affirmative action?

             4   A    I would say the answer to that is clearly Asian American

             5  groups overwhelmingly support affirmative action programs, and

             6  Asian American voters do so, as well.  If you take a look, for

             7  example, at the vote on Proposition 209, and if you take a look

             8  at the fact findings of the U.S.  District Court that

             9  considered the later challenges to Proposition 209, what you

            10  find is that while a majority of whites voted for Proposition

            11  209, a majority of members of each and every racial minority

            12  group, including Asian Americans, voted against the measure.

            13  That was a specific fact finding made by the U.S. District

            14  Court Judges, undisturbed once it went up on appeal to the

            15  Ninth Circuit.

            16             If you take a look in California, one of the

            17   prominent grass roots civil rights organizations in the San

            18   Francisco Bay area is called Chinese for Affirmative Action

            19   and you could guess from the title of that group that they are

            20   supportive of affirmative action programs.  This is a group

            21   that just celebrated, I believe, its twentieth anniversary.

            22   It has done community work, it does a great deal of outreach.

            23             It represents, I think, as much as any group could

            24   represent the views of Asian Americans and certainly the views

            25   of Chinese Americans in the San Francisco Bay area, where they

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             1   make up a quite sizable part of the population.  If you look

             2   at other groups, the Organization of Chinese Americans, the

             3   Japanese American Citizen's League, those are two of the

             4   largest Asian American civil rights groups.  OCA was founded

             5   in 1973, JACL in 1929.  They are among two of the older

             6   groups.  If you take a look at the Korean American groups, a

             7   variety of them out there, what you find is that they

             8   consistently support affirmative action principles and I have

             9   been very pleased in the past to have done work for them.

            10             I was asked, for example, in 1997 to author a brief

            11   to the Ninth Circuit on behalf of fifteen Asian American

            12   community groups which signed that brief.  So I have found

            13   certainly in the work that I do that Asian Americans by and

            14   large, with support that's broad and deep and which is

            15   committed, like other people of color, recognize that

            16   affirmative action is a necessary remedy for racial

            17   discrimination.

            18             I sometimes have the privilege of speaking on

            19   college campuses.  Sometimes I am invited by the deans or by

            20   the college, sometimes I'm invited by departments or by

            21   student groups.  When I spoke at University of Texas, for

            22   example, I was invited by the Asian American Studies program.

            23   Quite often I'm invited by Asian American Studies programs to

            24   speak, and specifically because they know that I have some

            25   knowledge of this area and they would like that background.

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             1   Q    Some of the Asian American organizations you named are

             2  currently active in efforts that are afoot to reverse the

             3  region's ban on affirmative action in the UC system; isn't that

             4  right?

             5   A    Yes, that's right.

             6   Q    Did you -- do you have any information about the position

             7  of Asian Pacific American students at the University of

             8  Michigan on affirmative action at the law school there?

             9   A    I would say they are quite supportive, as well, that they

            10  reflect this general trend, but which, by the way, is also

            11  borne out by the surveys and polls.  There are very few surveys

            12  and polls that actually look at Asian Americans, because in

            13  order to reliably survey Asian Americans you need to oversample

            14  by quite a bit, because Asian Americans are only four percent

            15  of the population.  It's a very difficult group to survey and

            16  survey well, but what there is out there shows that Asian

            17  Americans do support these programs.

            18             Now, at the law school I am aware of that from the

            19   fact that they have invited me to speak.  I spoke there last

            20   semester in the fall and I have spoken at the law school in

            21   the past since graduating, so it's a group that's reached out

            22   to me and I in turn have reached out to them and I know that

            23   their membership is quite solidly in support of affirmative

            24   action.

            25   Q    And what group is that, you said?

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             1   A    The Asian American Law Students Association at the

             2  University of Michigan.

             3   Q    A final topic on the relationship of affirmative action

             4  to Asian Americans.  What -- how have Asian Americans been

             5  figured or used rhetorically in the debate over affirmative

             6  action?

             7   A    Well, it's very interesting.  One of the Law Review

             8  articles that I wrote, much of it is devoted to analyzing the

             9  sudden prominence of Asian Americans.  One of the great

            10  frustrations of Asian Americans until very recently, that when

            11  people talk about race, we talk about it as a literally black

            12  and white matter, as if there are two and only two racial

            13  groups and everyone must fit in either one of those two racial

            14  groups.  So Asian Americans have quite often been frustrated,

            15  have said, well, where are we in this debate, why do we not see

            16  ourselves among the people sitting at the table making these

            17  decisions, why are we not listened to, why are we not heard.

            18             Sometimes people in the slips of the tongue that

            19   they make unconsciously reveal that they are thinking about

            20   race even when they are not aware that's what they are talking

            21   about.  Sometimes people will say Americans, and they in fact

            22   mean white.  That quite often happens when I'm talking to

            23   people, they say Americans as if I'm not part of that

            24   category, and sometimes people will say minority when they

            25   mean black, and when being more precise would be helpful to

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             1   the debate.

             2             So Asian Americans have for quite some time been

             3   very frustrated, they have said, and I know this is a common

             4   sentiment.  It's something that runs within the scholarly work

             5   in this area, and we have seen some very recent exchanges.  We

             6   saw them when Angela Oh, for example, had an exchange, what

             7   turned out to be a really fruitful exchange with John Hope

             8   Franklin a few years ago when President Clinton named both of

             9   them to his prestigious One America race panel, blew ribbon

            10   panel that would advise him, and that ultimately held a series

            11   of townhall meetings.

            12             They had what the press described as a dispute, an

            13   argument, and indeed, at the beginning it was a little bit of

            14   a dispute where Angela Oh said it's time to jettison the old

            15   terms, time to throw them out, and John Hope Franklin insisted

            16   that actually black and white were useful concepts in the

            17   color line that ran between black and white, and you could

            18   date precisely when race became so important in black and

            19   white terms, and that was 1619 with the arrival of black

            20   slaves in Jamestown colony.

            21             Well, that actually, I think, marked a moment in the

            22   national consciousness, because we saw Angela Oh as an Asian

            23   American talking about race, something that which until that

            24   time was quite rare.  And as they worked on this project, they

            25   reconciled with one another and they, I think, set an example

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             1   of one of the best practices.

             2             They were ordered or charged with the task of

             3   cataloging, publishing a list of best practices, and I think

             4   they demonstrated one of those best practices for us.  The

             5   best practice of engaging in dialogue, starting off with some

             6   disagreement, but with open minds and good faith talking

             7   through the issues.  And at the end when they wrote what they

             8   were asked to write, they explained that in fact there wasn't

             9   a tension, that you could reconcile on the one hand, including

            10   all of us, including people who are neither black nor white,

            11   while at the same time addressing the greatest urgency and

            12   public policy issues that confront us, and racial

            13   discrimination particularly against African Americans and

            14   Hispanics, and that that could be done, that it's possible to

            15   include all of us without it resulting in a divide and conquer

            16   strategy.

            17             What has happened, however, is that with the

            18   affirmative action debate as it's typically carried out, Asian

            19   Americans are brought into this debate as a wedge group.

            20   Instead of bringing us in to expand the dialogue, instead of

            21   bringing us in to recognize that we are American citizens,

            22   that we are minorities, that we have a stake in this process,

            23   and that civil rights laws protected us, what often happens is

            24   Asian Americans are brought in to this debate and held up, and

            25   that message is heard over and over again that, they made it,

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             1   why can't you.

             2             It's quite an ironic message.  It's ironic, because

             3   on the one hand, proponents of color blindness would have us

             4   believe that they cannot see color and that they will not see

             5   color, that they will not use racial references and they would

             6   have us believe that that is how they behave.

             7             Now, what's ironic about it is, if you are color

             8   blind, if you don't look at race, if you don't talk about

             9   race, if you don't categorize people in that way, you can

            10   hardly hold up Asian Americans and say, look at them over

            11   there, aren't they doing well.  It shows that you can't

            12   simultaneously do that.  You can't both say I'm color blind

            13   and yet single out Asian Americans as a racial group for

            14   praise.  It's just on a very literal level not possible to do

            15   that.  But that's what we see some people trying to do, trying

            16   to praise Asian Americans and use them in some sense as a pawn

            17   to attack affirmative action.

            18             Sumi Cho, a law professor at Depaul University in

            19   Chicago, has written about this as a form of racial mascoting,

            20   as using Asian Americans as a person of color as a mascot for

            21   an argument that really isn't about Asian Americans at all.

            22   Michael Greve, who has been a leader in some of these efforts,

            23   and I'm not quite sure if he currently has ties to CIR, but

            24   Michael Greve once wrote, I believe for the Wall Street

            25   Journal, an article urging the strategy, in that he described

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             1   how using, as he put it, the white male face on this argument

             2   was no longer quote, unquote, palatable.  He said that it

             3   would make sense to make the same argument, but put an Asian

             4   American face on it.  That's how he described it.

             5             And he said on the one hand, that does help Asian

             6   Americans to some extent, but then he revealed what his true

             7   agenda was.  At the same time, this gives us our vehicle, our

             8   opportunity, so he is in essence using Asian Americans as his

             9   vehicle to advance his argument, and I think that's

            10   disingenuous and unfortunate.  It is a very destructive way to

            11   bring Asian Americans into this debate.

            12             Let me give you a very concrete way of thinking

            13   about this.  Sometimes you hear people say that they don't

            14   discriminate, our company doesn't discriminate, our college,

            15   our institution, and you can tell we don't discriminate,

            16   because, look, we have a bunch of Asian Americans here.  We

            17   have hired Asian Americans or admitted Asian Americans and

            18   that shows that we're free of racial prejudice.

            19             Now, if you sit back and think about that for a

            20   moment, that does indeed suggest that they are free of racial

            21   prejudice toward Asian Americans, unless it turns out that all

            22   Asian Americans are concentrated in the lower paying jobs or

            23   something like that, but let's assume that in fact Asian

            24   Americans are distributed evenly throughout this company or

            25   this college, they hold positions of responsibility and

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             1   management and authority.

             2             That says nothing, nothing at all about

             3   discrimination against African Americans.  It is perfectly

             4   possible for a person or an institution to harbor virulent

             5   antiblack sentiment and yet reach out to Asian Americans.

             6             If you take a look at a lawsuit, for example, it is

             7   not a defense to a Title VII claim brought by African

             8   Americans to mount the defense, we have lots of Asians.  That

             9   simply isn't a defense, nor should it be.

            10             Just as a policy matter, you often, I think, see,

            11   and we're increasingly seeing places where Asian Americans are

            12   being used in that manner, where the claim is made, we can't

            13   possibly be discriminating, but what's left out of there is

            14   the rest of that sentence.  It can't be, we can't discriminate

            15   against -- we can't be discriminating against African

            16   Americans because we have Asian Americans.  That's clearly a

            17   non sequitur.  It's only by dropping the last part of the

            18   sentence, by not making it clear who the subject is, that you

            19   can even make that argument.  So that is what has happened and

            20   you see it repeatedly.

            21             I see it, for example, when I look at statistics

            22   that describe the number of people of color or if I talk to

            23   people as I sometimes do when I'm visiting college campuses to

            24   give talks and I ask them about diversity.  I'm always very

            25   troubled when they trumpet Asian Americans and when, as you

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             1   look further, you realize that as good as their numbers on

             2   Asian Americans may be, their numbers on African Americans are

             3   woeful.

             4   Q    And in your opinion, have Asian Americans been figured in

             5  a way that casts aspersions on members of other groups?

             6   A    Oh, absolutely.  Aside from the William Petersen article

             7  that I mentioned, where it was made about as plain as it could

             8  be, there are numerous examples of this, of Asian Americans

             9  just being told, as I have been told sometimes, why can't the

            10  blacks be like you.  That is an explicit, insidious comparison

            11  where Asian Americans are pointed to and complimented not at

            12  all as a compliment to Asian Americans, so I think you see it

            13  quite frankly throughout popular culture and just writing that

            14  includes Asian Americans in a superficial manner.

            15   Q    So Asian Americans can become a kind of a vehicle for the

            16  expression of ideas about racial inferiority of black people

            17  and Latinos?

            18   A    Absolutely.  And Asian Americans are none too pleased by

            19  this.  Maggie Chon, a law professor at Seattle University,

            20  wrote an article about The Bell Curve when The Bell Curve came

            21  out in 1994, and in it she pointed out that in The Bell Curve,

            22  which if you haven't read it, argues quite explicitly that

            23  socioeconomic status is determined by IQ and IQ is determined

            24  by race and that blacks are less intelligent and that that

            25  accounts for socioeconomic status differences, but what you

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             1  find out, if you read The Bell Curve, completely aside from the

             2  flaws in its method, is that Asian Americans rank with whites

             3  in this hierarchical array of races.

             4             And Maggie Chon wrote an article pointing out that

             5   this is not something to be praised.  Just because Asian

             6   Americans are nominally in the same position as whites or

             7   above where whites are doesn't mean that this work should be

             8   accepted by Asian Americans or embraced by Asian Americans.

             9             If you look at the work of, I believe his first name

            10   is Phillip, but last name is Rushton, another writer in the

            11   same vein as The Bell Curve, you find he makes the same

            12   arguments, also very explicitly, and talks about Asian

            13   Americans being at the top.

            14             You know, William Safire commenting on The Bell

            15   Curve wrote a column in which he explicitly made this

            16   argument.  He said that while blacks are up in arms about The

            17   Bell Curve, they are complaining, instead of complaining, I

            18   think he used the phrase, of being all riled up, they should

            19   look toward the other end of the spectrum at the Asians and

            20   the example of the Asians.  So you see this quite frequently.

            21             Dinesh D'Souza makes the same argument in The End of

            22   Racism, where he argues from a cultural determinist standpoint

            23   that Asian Americans have a better culture and that culture,

            24   not IQ, determines socioeconomic status, and if blacks aren't

            25   successful, it's their own fault and they should emulate Asian

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             1   Americans.

             2             So it's easy.  These examples are plentiful.  You

             3   don't have to look very far to find them.  Explicit racial

             4   hierarchies in both The Bell Curve and The End of Racism were

             5   best selling works, you know.  These aren't works written by

             6   cranks -- well, they may be cranks, but they are best sellers

             7   nonetheless, and they are part of our popular culture.  In

             8   '94, '95, those were the books that people were talking about.

             9   They certainly shaped the debate, the way that we thought and

            10   think about race.

            11   Q    Professor Wu, tell us how you came to teach at Howard.

            12   A    Well, I have always been interested -- I had always been

            13  interested in teaching law as one of, I suppose, those perverse

            14  people who enjoyed the first year of law school, so I knew I

            15  wanted to teach.  And I have always been interested in civil

            16  rights.  And I interviewed with a number of law schools and I

            17  had the good fortune to be offered a job at Howard.  I jumped

            18  at that chance.  So for the past six years, I have been on the

            19  law faculty at Howard University and it's been my privilege, I

            20  would say, to be the first and only Asian American at Howard

            21  University.

            22             As most people probably know, Howard has been for

            23   more than a century the leading place for the training of

            24   black lawyers.  There was a time, I believe, until very

            25   recently when the majority of African American lawyers living

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             1   or dead had been trained at Howard University.  I think our

             2   numbers were surpassed only relatively recently.

             3             So I was very flattered to be given a job offer and

             4   it's been a tremendous opportunity for me, but I have realized

             5   something.  I have realized that for many people my teaching

             6   at Howard University is quite remarkable.  It's surprising, if

             7   not shocking, and I'll share a story about how I know this and

             8   how I have responded to it.

             9             Everywhere I go, whether it's to do something like

            10   this, to be a witness or a consultant or if I go to a college

            11   campus to give a talk or if I'm asked to come on a TV show or

            12   if I'm just at a dinner party and I meet someone for the first

            13   time, when people find out what it is I do for a living, or

            14   more accurately when they find out where it is I do what I do,

            15   invariably somebody pulls me aside and starts asking me a

            16   series of questions.  I have been asked these questions, I

            17   would say, literally at least several hundred times.  I have

            18   lost track.  I'm asked these questions at least once a week.

            19             The questions go something like this -- actually,

            20   before I tell you what the questions are, let me add another

            21   preface.  These questions are asked of me by well meaning,

            22   sincere people.  They are not bigots.  They are people who are

            23   white, most of them, a few are black, some are Asian American.

            24   Despite their diverse backgrounds, they share a common

            25   curiosity.  They just want to know what the story is, why,

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             1   when you find out that a Howard University professor is going

             2   to be doing something, why do I show up.

             3             So they ask questions like, how does it feel to be

             4   at Howard?  I have been asked, what is like to be a minority

             5   among minorities?  People have said to me, oh, black people,

             6   what are they like?  People have said, black students, are

             7   they any good?  People have said to me, oh, do you teach there

             8   as some sort of political statement, you know, is it

             9   ideological?  People have thought I taught at Harvard, quite

            10   often.  People will say to me, did you grow up in a black

            11   neighborhood?  And I have had some people look at me, more

            12   than one person, look at me really carefully and then sort of

            13   stutter out, are you actually black?

            14             So I have been answering these questions for a long

            15   time and I have answered them many, many times, and the

            16   questions made me realize something.  They made me realize

            17   that race affects how we think.  We might not know it, but

            18   there is a script we're expected to follow and somehow I don't

            19   fit that script.

            20             That's what stereotypes are, they are scripts, in a

            21   way.  They are ways, they are shortcuts, ways we think about

            22   the world, ways we arrange the world, the stories we tell

            23   ourselves.  And we tell ourselves all sorts of stories, not

            24   just about race, but that's how we make sense of the world,

            25   and for most people I think if you're Asian American or you're

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             1   an Asian immigrant or people think you're a newcomer, you're

             2   expected to fit in.  You have to adjust yourself and that

             3   adjustment is to an unspoken standard.  When you come to this

             4   country, you're expected to adjust to a white norm, to a white

             5   standard.

             6             Now, I say this because I have inferred from these

             7   questions that if I were at a white school teaching, that

             8   would be normal.  That would be mainstream.  That would be

             9   upwardly mobile.  But if you're an Asian American -- so to be

            10   an Asian American among whites, that's the model, that's how

            11   you're supposed to behave.

            12             And if you're an Asian American that purposely

            13   affiliates yourself among black Americans, that's remarkable,

            14   at least makes people curious.  They just want to know why in

            15   the world did you decide to do that.

            16             And I think this isn't just speculation on my part,

            17   because my wife, who is also Asian American, is also a law

            18   professor and she teaches at George Washington University,

            19   which is a fine law school, it's predominantly a white law

            20   school, and it is every bit as white as Howard is black, and

            21   not once in 13 years of teaching, not once, has she ever been

            22   asked, what are white people like?  No one has ever said to

            23   her, white students, are they any good?  No one has asked her

            24   if her choice of an employer was a political statement.  No

            25   one has ever asked her if she is white.  These questions just

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             1   don't occur to people and they occur for me regularly.

             2             And I know when I was interviewing for a faculty

             3   job, I had, again, the good fortune to have talked to a number

             4   of schools.  At each and every one of the institutions where I

             5   interviewed, I would have been the first and only Asian

             6   American professor of law in any capacity and every

             7   institution told me that, and the ones that didn't volunteer

             8   it, I asked, have you ever had anyone who is Asian American in

             9   a tenured or tenure track position and the answer was always

            10   no.  So these situations are not mirror images, they are not

            11   the same.

            12             There is one school where I interviewed, I won't

            13   mention the school, but it was in California, where, when I

            14   went to lunch and when people go in to meet with the faculty

            15   to try to get a job, you give what's called a job talk at

            16   lunch.  You give a scholarly paper, usually, and you talk for

            17   about 45 minutes and you get a half hour of questions.  It's

            18   like being in a law school class with one student,  who is

            19   you, and 50 professors just constantly asking questions.

            20             And when I walked into the conference room to do my

            21   job talk at lunch, the seniormost member of the faculty, who

            22   was white, came up to me and said, you know, it's really

            23   appropriate we have our Asian candidate here today, and I was

            24   thinking to myself, I must have missed something, I don't know

            25   what is special about today, until I realized that it was

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             1   December 7th, which is Pearl Harbor day.

             2             So the first and only thing the seniormost member of

             3   the faculty had to say to me was an association of me with

             4   Pearl Harbor, which, you know, to put it mildly, at the very

             5   least seems inept.  And so I realize that race plays itself

             6   in, plays itself out in all of these very unusual ways that we

             7   don't even anticipate.

             8             There's something odd, though, something ironic

             9   about these questions, and that is that Howard, while it does

            10   have a very important mission, is a predominantly black law

            11   school, and that is a mission that's not just historical, but

            12   of continuing vitality today, and is part of the reason that

            13   I'm there.  It's always opened its doors to people of all

            14   racial backgrounds.  Chartered by Congress in 1867, one of the

            15   first universities to open its doors to people of all racial

            16   backgrounds.  It's named after someone who is white, a former

            17   union general who headed the Freed Man's Bureau.

            18             So it's a school that's had its share of deans,

            19   faculty and students who are white, and the first year that I

            20   taught, when I looked at the 50 or so students who were in my

            21   classroom, about half dozen or more were not black, making my

            22   classroom as diverse, if not more diverse, than a typical law

            23   school classroom.  When I go to faculty meetings, our faculty

            24   is about one-third non-black, that makes us the most diverse

            25   law school faculty in the nation.

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             1             What's odd, though, is that institutions which are

             2   predominantly black institutions are somehow looked upon as an

             3   institution which is exclusively black.  In other words, when

             4   you achieve integration, if it's an integration that doesn't

             5   look the way people expect it to look, they discount it and

             6   they don't recognize that it's actually an integrated

             7   environment, and that's one of the reasons that I have stayed

             8   at Howard, because it has opened my eyes.  I have learned as

             9   much as I have taught about race just from the experience of

            10   going to work every day.

            11   Q    I'm going to wrap things up here, but before I ask you a

            12  couple of concluding questions, Professor Wu, you mentioned

            13  that people sometimes bring to you questions that incorporate

            14  stereotypes about the ability of the black students you teach

            15  at Howard, and so I want to ask you whether your black students

            16  are in every way the equals and the peers of the non-black

            17  students you have encountered, both at Howard and elsewhere on

            18  other teaching assignments and so on?

            19   A    Absolutely.  They are every bit as capable.  They display

            20  the same range of talents.  They are also tremendously diverse.

            21  You know, it's by no means true that every black student is

            22  just like every other black student.  They have differences of

            23  socioeconomic class, differences of political partisan

            24  preference, different religious faiths, different geographic

            25  origins, different ethnicities.  You know, some would identify

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             1  as black, but not African American, they would identify as

             2  Caribbean or Afro-Canadian or part of a broader diorama, and

             3  there is something about Howard that allows them to express

             4  their diversity in a way that they wouldn't elsewhere, because

             5  there is a critical mass.

             6             Each individual doesn't automatically become a

             7   stereotype.  You know, what happens when you have just one is

             8   people stereotype that person.  Now, that's not because the

             9   rest of us are all bad people, it's because if that's the only

            10   one you know of any particular demographic group, it's

            11   perfectly natural, that's how people tend to think.  But when

            12   you have a critical mass such as at Howard, it is easier for

            13   my students to disagree in the classroom, it's easier for them

            14   to dissent.  There is by no means a monolithic prevailing view

            15   or party line and they feel, I think, more comfortable knowing

            16   that what they say won't be taken as representative of every

            17   single African American everywhere, and what they do will not

            18   be taken as representative of every single African American,

            19   because there are 45 of them out of 50 sitting in the

            20   classroom.

            21   Q    Professor Wu, does affirmative action in admissions, in

            22  law school admissions, in your opinion, create a double

            23  standard that disadvantages Asian American applicants?

            24   A    Absolutely not.  It responds to double standards that

            25  would exist otherwise.

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             1   Q    So without affirmative action, absent affirmative action,

             2  there would be in law school admissions a double standard that

             3  would work to the disadvantage of minority applicants?

             4   A    Absolutely.

             5   Q    And in your opinion, to what extent should race be taken

             6  into account in law school admissions?

             7   A    It should be taken into account as one factor, because it

             8  is a remedial measure that properly addresses racial

             9  discrimination that's prevalent throughout society.

            10             MS. MASSIE:  Thank you.

            11             THE COURT:  Mr. Payton?

            12                     CROSS EXAMINATION

            13  BY MR. PAYTON:

            14   Q    Good afternoon, Professor Wu.  I only have a few

            15  questions, and actually, I want to go back to what you were

            16  talking about earlier in your testimony, actually this morning,

            17  which is about the testimony you gave relating to the

            18  stereotypes that are imposed on Asian Americans, I think you'll

            19  remember that, very, I'd say, ugly and pernicious stereotypes.

            20             My first question is, how serious is that

            21   stereotyping?  How serious is discrimination against Asian

            22   Americans today; not historically, today?

            23   A    I would say it's serious.  Let me give you several

            24  different examples.  I'll give you some that are personal

            25  examples and some that rely on social science data and accounts

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             1  of dramatic cases.

             2             Let me give you two personal examples, neither of

             3   which are so serious that they will keep me from getting a job

             4   or buying a house or leading the life that I want to lead, but

             5   which are a sign, a signal of something more.

             6             First example is just a common occurrence that

             7   happens to me once every couple of weeks that makes me realize

             8   not just for Asian Americans, but for all racial minorities,

             9   that the very fact that you are a racial minority, the status

            10   of being a racial minority, regardless of the acts that you

            11   undertake and regardless of whether people are nice people,

            12   you can be nice and still stereotype, that that has an impact.

            13             I'll sometimes be waiting in line to get on an

            14   airplane, to pick up my dry cleaning, at a deli, it doesn't

            15   matter, just waiting in line, and just by chance, just by

            16   coincidence, in front of me or behind me or next to me there

            17   will be some random person who happens to be of Asian descent,

            18   no one I know, just a total stranger, and when I get up to the

            19   counter and see the clerk, I would wager at least half of the

            20   time whoever that person is assumes that I'm with this total

            21   stranger who is standing next to me, because they happen to be

            22   Asian American.

            23             Now, that's not especially pernicious, but it does

            24   show us something.  That shows that I ignore that person and

            25   he or she ignores me at our mutual peril.  I can't ignore that

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             1   person, because -- sometimes I actually feel bad about this,

             2   because you don't know what the appropriate reaction is, if

             3   it's, for example, a child behaving badly, an Asian child

             4   behaving badly, I want to distance myself.  I want the other

             5   people waiting in line to know, this is not my kid raising a

             6   ruckus in line at the deli, because they may be looking at me

             7   wondering, what's wrong with that father, not controlling his

             8   kid, who is standing right next to him raising a huge stink.

             9   So there is this effect where you're associated with other

            10   people who look like you in places where you are a minority.

            11   Q    And you in fact can't really distance yourself, can you?

            12   A    No.  And I think in some sense it would be wrong for me

            13  to do that.  So that is a fairly trivial example.  Let me move

            14  up the scale, as it were, and let me give you an example by

            15  telling a story that occurred very close to here about ten

            16  years ago.

            17             When I was in law school I organized a group of

            18   Asian American students, because I was the co-president of the

            19   Asian Pacific American Law Students Association at University

            20   of Michigan Law School, and we decided to go for dimsun, which

            21   as you may know is brunch.  It's where you go to the

            22   restaurant and they have little carts that they push around

            23   with small dishes, dumplings, pastries, things that most

            24   Americans might not eat, like chicken feet, things like that,

            25   and it's a very popular sort of thing and it's not just people

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             1   of Chinese descent or Asian descent that enjoy dimsun.

             2             For some reason, in this area, the best place for

             3   Chinese food is Windsor, it's not Detroit.  You cross the

             4   Ambassador Bridge or the tunnel and go over to Windsor,

             5   because it's just better food for some reason.  I don't know

             6   why.  And it happens to be cheaper because of the strength of

             7   the American dollar.

             8             And so on weekends, Canadian border guards are quite

             9   accustomed to car loads of Americans coming over for bargain

            10   shopping or dimsun or what have you, and I have been many

            11   times as a child, because I grew up not too far from here and

            12   we used to go not every weekend, but once a month, so I have

            13   made this trip 40, 50 times.

            14             And something interesting about this particular trip

            15   just in general and this particular incident that I want to

            16   tell you about.  Crossing into Canada is very easy, you don't

            17   need a passport, and a carload of people with Asian faces is

            18   not particularly striking, apparently, to Canadian border

            19   guards.  They kind of wave you through, and sometimes they

            20   take pride, I think, in the fact that they have better Chinese

            21   food there than is available on this side.  So it's very easy

            22   to cross over, but coming back to the U.S. is always slightly

            23   harder.  You always get a little more trouble.

            24             And on this one particular occasion when I was in

            25   law school I went in a carload of people and we were all of

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             1   Asian descent, all U.S. citizens except for one person, who is

             2   a woman I was dating at the time, who was white.  And we went

             3   over for dimsun, had no trouble going over, stuffed ourselves,

             4   ate lots of dimsun, had our leftovers in doggy bags and coming

             5   back, and when we came back the U.S. Customs Service, my own

             6   Government, pulled the car over, you know, pulled us out of

             7   line and said we want to search your car, we would like you to

             8   step inside the office and we have a few questions for you.

             9             And, you know, I was a law student.  I was intrigued

            10   by this experience, this encounter with the bureaucratic

            11   process and we went inside, and probably 1990, so probably

            12   about eleven years ago.

            13             Of the people waiting, only two looked to be white

            14   and they had marked accents.  Everyone else in the waiting

            15   room was a person of color.  They looked to be African

            16   American, Latino or Asian, you know.  Their cars were being

            17   inspected and searched, people going through their trunks.

            18             And the Custom Service wanted to ask me a few

            19   questions, but they specifically wanted to ask me and my white

            20   friend some questions, and they wanted to do this separately,

            21   so they separated us and asked some questions, about

            22   15-minute's worth of questions, how do you know one another,

            23   what's the nature of your friendship, what are your future

            24   plans together.

            25   Q    Separated you and your white girlfriend?

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             1   A    Right.

             2   Q    From the other Asians who were in the car with you?

             3   A    And then separated the two of us.

             4   Q    From each other?

             5   A    Right.  So that we couldn't hear each other's answers.

             6  So they wanted to see if we were giving consistent answers,

             7  presumably.  So they asked this series of questions, and

             8  presumably they were satisfied with the answers.  They let's go

             9  and we went on our merry way.

            10             And the incident itself, you know, I want to

            11   emphasize, this is nothing terrible, but something more

            12   curious happened afterward.  As a law student, I thought,

            13   well, I'm going to write a letter, so I wrote a letter to the

            14   Customs Service and I said, on such and such a date, so-and-so

            15   customs guards pulled over a car at such and such a time and

            16   all these Asian Americans and this one person who was white,

            17   and it described everything that happened.

            18             And to my great surprise, a month later I got a

            19   letter back from the U.S. Customs Service, and it wasn't a

            20   form letter, this letter had been written specifically in

            21   response to my letter, it was two pages, and it started by

            22   saying -- started by assuring me that although -- I think I

            23   may be paraphrasing here, but I think I'm paraphrasing fairly

            24   accurately, although you may not know the reasons for our

            25   inquiry, please rest assured that there were good reasons for

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             1   our scrutiny of your vehicle and its occupants.

             2             And it went on to say that -- and here I'm fairly

             3   certain I'm quoting accurately -- quite often attempts at

             4   alien smuggling are made by putting a suspect traveler

             5   together with a non-suspect traveler, their words, suspect

             6   traveler, non-suspect traveler.  Then they went on to say, we

             7   need to ask questions about the authenticity of the

             8   relationship in those instances.  And when you read the letter

             9   addressed to me, it also was clear that I was the suspect

            10   traveler.

            11             Now, there is no reason to think that I was

            12   different than my white girlfriend other than race.  Same

            13   socioeconomic status, same background, both law students.  She

            14   happens to be a law professor now.  There is nothing about us

            15   that you would be able to distinguish and tell apart that

            16   would make me more suspect than her, yet in the eyes of the

            17   U.S. Government in 1990, so not a long time ago, within my

            18   lifetime, within my adult lifetime, I have experienced this

            19   type of scrutiny.  And it's in part because of that, that I do

            20   what I do.

            21             Now that, too, is not the worst example.  There are

            22   other examples.  And it is those examples that I think give me

            23   great concern that we see.  We see the egregious examples of

            24   hate crimes, other than the Vincent Chin case that I

            25   mentioned, and the dock busters case.  There have been a

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             1   number of cases, including ones involving law enforcement, in

             2   which Asian American men have been shot, including shot

             3   fatally by non-Asians who mount a self-defense defense that

             4   consists of the premise the person must have known kung-fu, I

             5   felt threatened.

             6             There was a Japanese exchange student shot to death

             7   in Louisiana on Halloween because he was trick-or-treating

             8   with others, because he was told this is the American custom,

             9   and the white homeowner, whose door bell he rang, like many

            10   others before him that evening, thought here is some kung-fu

            11   martial arts expert and with a shotgun shot the exchange

            12   student to death.

            13             There is a case in California in which law

            14   enforcement officers responding to a call about a man who was

            15   making a public disturbance, he was drunk, found late at night

            16   an Asian American gentleman, this is a few years ago, on his

            17   front lawn making a public disturbance, but because they

            18   thought he was a martial arts expert, without any other

            19   provocation other than that he was a drunk Asian man, they

            20   shot him to death.

            21             Those are examples of cases which really should

            22   cause us concern.  In comparison to those, what I'm talking

            23   about that's happened to me is relatively trivial.  I

            24   recognize that I have lived a relatively privileged life, but

            25   these fall in a spectrum.  They are part of the same

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             1   phenomenon.  They are part of the phenomenon of not being used

             2   to seeing Asian people, Asian Americans, not accustomed to the

             3   idea of an Asian American lawyer, an Asian American law

             4   professor, or an Asian American professional at all who can

             5   speak English without an accent, and that, I think, is a

             6   product of segregation, is a product of lack of contact.

             7   Q    Let me ask you this:  Do these stereotypes that you just

             8  described, and I would say the collection of stereotypes that

             9  you -- or I'm going to put under the label you used of model

            10  minority, do these have a relationship or do they derive from

            11  the ignorance that you were just about to start talking about?

            12  Is it about lack of contact and ignorance?

            13   A    Well, it is about ignorance in the sense that all

            14  stereotypes are.  Stereotypes are the assumptions that we make

            15  about people we don't know, and once we get to know them we

            16  replace the stereotype with something else.

            17             And the problem is, we're not all stereotypes and

            18   we're not all stereotyped in the same manner.  Some people are

            19   accompanied by very favorable stereotypes, and with Asian

            20   Americans I think the reason Asian Americans are such a good

            21   example of this is because the Asian American stereotype can

            22   be sometimes positive, sometimes negative, sometimes

            23   simultaneously both at once, and you can see that in some

            24   contexts I benefit from being Asian American.

            25             I can pass myself off as a computer expert.  It

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             1   would be shockingly  easy for me to do that, based on -- and I

             2   know this is not just me, because it's the sort of thing that

             3   Asian Americans, Asian American males, particularly, we joke

             4   about amongst ourselves and just roll our eyes at how often

             5   we're told, oh, could you come over here and help me with my

             6   computer?  No matter what our backgrounds are, we could be

             7   English majors, we could be technology phobic, and if you look

             8   like this, people just assume you can fix their printer.

             9   Q    But you know, one of the things that you said that was

            10  very interesting this morning, because I think this is part of

            11  how you described model minority, one of the things that was

            12  very interesting is that even that positive stereotype has a

            13  concomitant negative aspect associated with it.

            14   A    Sure.  I can fix their printer, but I can't be their

            15  lawyer.  There are other things that I can't do because, well,

            16  that's just not what I am supposed to be doing.

            17             And it is that effect, I think, that is so troubling

            18   and so pervasive, and I want to emphasize that can happen with

            19   people of goodwill.  You know, the person who says to me, say,

            20   could you come fix my printer, who doesn't know me at all,

            21   doesn't know anything about me and chooses me alone among the

            22   different people who happen to be standing by the printer to

            23   ask that of, that person is not, I hope and believe, a bigot.

            24   I would like to give them the benefit of the doubt.  It's just

            25   something that is part of our culture, that is very hard to

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             1   eradicate without affirmative efforts, affirmative action.

             2   Q    Well, are these stereotypes, is this ignorance, helped by

             3  having meaningful numbers of not just Asian Americans, but

             4  African Americans and Latino Americans on campuses where they

             5  can interact and learn about and from each other?

             6   A    Absolutely.  I see that in my own classrooms.  I see it

             7  at campuses where I speak, and I have done research, and

             8  everything that I have looked at not just suggests, but

             9  confirms that integration, that meaningful contact with people

            10  who are your peers, who are your equals, I'm not talking about

            11  the secretary or the janitor who comes in at night, but

            12  interacting at a meaningful, personal, one-on-one level, that

            13  is, simply put, the best way to overcome these racial

            14  stereotypes.

            15             And you need a critical mass.  You can't just have

            16   one, because if it's just me and I demonstrate that I'm inept

            17   at fixing the printer, then I have created a new stereotype if

            18   I'm the only person of Asian descent that that particular

            19   stranger has interacted with in a meaningful manner.  You have

            20   to have a cross section, a meaningful critical mass so that

            21   people can see that Asian Americans can be smart, Asian

            22   Americans can be stupid, we can be good with computers, not

            23   good with computers, articulate, inarticulate, every

            24   combination in between.

            25             If you look at the work of people such as Uri

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             1   Treisman, and his work with high-risk students in calculus and

             2   in math, in very complicated math that certainly I as a lawyer

             3   could not do, what you find is that the greatest success he

             4   has had is not just working with African Americans alone or

             5   working with Asian Americans alone, but working with groups

             6   that have African Americans in meaningful numbers and Asian

             7   Americans in meaningful numbers, because what happens is

             8   African Americans see Asian Americans struggling with math and

             9   Asian Americans see African Americans doing well at math and

            10   they see that math skills don't line up neatly with race, but

            11   you don't get that unless you go out and make an effort.

            12             If you make no effort, you -- unless by some

            13   improbable chance, you just aren't going to get a room where

            14   you have a bunch of African American students and a bunch of

            15   Asian American students working on math sets together.  It

            16   doesn't happen by accident.

            17             MR. PAYTON:  Professor Wu, thanks a lot.

            18             THE COURT:  Thank you.  Plaintiff?

            19                       CROSS EXAMINATION

            20  BY MR. PURDY:

            21   Q    Good afternoon, Mr. Wu.  How are you?

            22   A    Fine, thank you.  Yourself?

            23   Q    You mentioned Professor Treisman, the mathematics

            24  professor, and are you familiar with his work?

            25   A    I have appeared on a panel with him at Stanford

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             1  University, I would like to say in 1999, but it may have been

             2  '98.  It was sponsored by Claude Steele as part of a conference

             3  on Dr. Steele's work.

             4   Q    And do you recall that -- have you read the previous work

             5  of Professor Treisman and what he did with his mathematics

             6  workshops for specifically under-represented minority students?

             7  Do you know how he developed these, by any chance?

             8   A    I'm not sure which particular aspect you're referring to.

             9  Are you talking about the amount of time he spent with African

            10  American students and Asian American students?  That's the

            11  aspect that I'm most familiar with.

            12   Q    Well, let me ask you this:  You have been talking a lot

            13  this morning and this afternoon about what you perceive to be

            14  the negative stereotypes, you call them.  They are positive in

            15  a sense, but then they turn around with this backlash, and I

            16  think you described one of them as Asian Americans work harder

            17  and then you -- while that sounds positive, and of course, I

            18  will tell you just from my own standpoint I'm always pleased

            19  when anybody tells me that I may work harder, but you seem to

            20  suggest that that's a -- it's not a true positive stereotype

            21  and that in some respects it's something that's always used and

            22  turned around on Asian Americans.

            23             So let me ask you this question:  Do you recall that

            24   what Professor Treisman did initially was study Chinese

            25   American math students?

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             1   A    Right, that was the part I was asking you, if you wanted

             2  me to talk about that.  My understanding is he spent -- he

             3  immersed himself among Chinese Americans, lived with them, ate

             4  with them, observed them over a period of several months, and

             5  he did that with African American students, as well, lived with

             6  them, ate with them, stayed in the same dormitory, observed

             7  them very close up, so yes.

             8   Q    And what he did, isn't it true that what he did is he

             9  adopted the study habits and patterns of the Chinese American

            10  students, and it was not only -- it was the study habits in

            11  terms of their joint study, which was not predominantly used by

            12  any of the racial groups to the extent Chinese Americans did

            13  it, that's one thing he did, do you recall that?

            14   A    Yeah, I recall that one of the things that he did was try

            15  to form study groups, that that turns out to be one of the best

            16  things to do, to develop a group of people who work together

            17  and study together and value academic achievement together.

            18   Q    Well, in fact, that's another thing.  You made a -- you

            19  have reminded me and I thank you for it.  A group that valued

            20  academic achievement, he did note, did he not, Professor

            21  Treisman noted that Chinese American students place a

            22  tremendous value on academic achievement as a group, do you

            23  recall that?

            24   A    I would say that that's fair, except that it suggests

            25  that it's somehow uniquely Chinese American, and that, I would

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             1  suggest, is objectionable, because it implies that other groups

             2  don't also place a high value on academic achievement.

             3   Q    Well, isn't it true that Professor Treisman went and

             4  studied Chinese Americans and listed the things that he found

             5  so helpful from the manner in which Chinese American students

             6  both approached their studies and the amount of time.

             7             Let's talk about working hard.  He also noted that

             8   they spent considerably more time as a group studying

             9   mathematics than other groups, including whites, blacks,

            10   Latinos, Native Americans, isn't that true?

            11   A    I believe that he found that, among many other things,

            12  yes.

            13   Q    Yes.  And what he did after observing the Chinese

            14  American math students-- you recall this was done at

            15  UC-Berkeley, do you not?

            16   A    Uh-huh.  I'm sorry, yes.

            17   Q    That's fine.  And what he did then was to pattern the

            18  study

            19             groups, the groups that he put together later for

            20   different ethnicities and different races, he patterned after

            21   the beneficial things that he took from observing the Chinese

            22   American math students; wouldn't that be a fair

            23   characterization of what he did?

            24   A    I would say no for two reasons, and I don't mean to --

            25   Q    No, no, if you don't agree, I want you to please explain.

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             1   A    The two reasons are the following -- first, actually,

             2  three reasons.

             3             First, I think it would be inappropriate to suggest

             4   that there is something intrinsically Chinese American about

             5   the notion of getting some friends together to study.  That is

             6   not a unique Chinese trait, and I don't think that Professor

             7   Treisman means to suggest that it is in some innate sense a

             8   Chinese or Chinese American trait.

             9             Second, Dr. Treisman also studied African Americans

            10   and spent a considerable amount of time with African American

            11   students in African American settings with African American

            12   groups, and it's important to note that what he did was in a

            13   sensitive manner bring together groups and balance the

            14   different strengths of different groups.

            15             Third, and finally, the way you have characterized

            16   it, I would suggest, is misleading.  It's misleading, because

            17   it doesn't -- it leaves out an enormous amount of work that he

            18   did that's absolutely crucial to getting to the point that

            19   you've described.  In order to get to the point that you've

            20   described, he had to make a racially conscious effort to find

            21   the African American students and put together a group of

            22   African American students with whom he could work.  He didn't

            23   just randomly come upon African American students who were

            24   interested in doing this.  It was the product of a conscious

            25   effort to undertake this program.

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             1   Q    Well, let me go back, and just so the record is clear, I

             2  don't believe that Dr. Treisman or anybody in this courtroom

             3  has suggested that what he found was that there was an innate

             4  difference or that he was even looking for an innate difference

             5  between the groups.

             6   A    I'm glad you and I agree on that.

             7   Q    We do agree.  We do agree.  And what he did do --

             8   A    May I clarify, though, something about our agreement?

             9   Q    No, you and I agree.  That's good.  We found agreement.

            10  Let's keep going.

            11   A    What's troubling is that others read into that much more,

            12  that while you and I may agree that it's not innate, that due

            13  to, say, The Bell Curve and other things like that, people read

            14  into this and the popular culture reads into it a notion that

            15  it's innate.

            16             I don't mean to attribute it to you, but I do mean

            17   to clarify that, while I agree that you may not be taking the

            18   position that it's innate, but that's just an inevitable

            19   consequence given all the other images of popular culture that

            20   exist and with which we must contend, that some people

            21   interpret it that way, and attribute -- when you study

            22   attribution and attribution of socioeconomic success or

            23   attribution of academic achievement, what you find is that the

            24   way people attribute the causes of socioeconomic success or

            25   academic achievement, high socioeconomic success or good

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             1   academic achievement varies by race and that many people will

             2   assign to low African American socioeconomic status or low

             3   African American academic achievement the notion that there is

             4   an innate difference.

             5             Not you, not me, but other people will, in

             6   sufficient numbers that it is a marked pattern, so I just want

             7   to be careful about that.

             8   Q    You know, I appreciate your clarification, and I will

             9  tell you, when this case is over, you and I will team up

            10  together and we will go out and every time we find an example

            11  of that, we will try and put it right, how's that?  We will try

            12  to set them straight on it, is that a fair commitment?

            13   A    I'd be more than happy to take you up on that offer.

            14   Q    We will do that.  We will do that.  Now, let me go back,

            15  though, to Professor Treisman,

            16             because I want to be very clear about this.  The

            17   second thing he did is he went and he noted different levels

            18   of time spent by different groups of students.  He noted the

            19   extraordinary amount of time, and it's a very simple

            20   calculation, for example, that if a group of students, if a

            21   student was spending four hours a week on calculus, he found

            22   that Chinese American students might be studying as a group

            23   and devoting twelve hours to calculus.  Do you recall that

            24   difference in the levels of time devoted?

            25   A    For some Chinese American students.

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             1   Q    Right.

             2   A    Yes.

             3   Q    And he also noted the difference where Chinese American

             4  students tended -- that the successful ones tended to study in

             5  groups.  The unsuccessful students from other ethnic groups,

             6  lots of different groups, tended to study alone, that was a

             7  problem, and that was another thing that he attempted to

             8  correct, correct, you recall that?

             9   A    By using study groups.

            10   Q    Study groups patterned after the Chinese.

            11   A    Yes, he promoted study groups.

            12   Q    Patterned after what he observed from the Chinese

            13  American students; correct?

            14   A    Well, you know, I don't want to quibble with you, but I

            15  just don't think it's accurate to suggest that it is something

            16  peculiar about Chinese Americans that we must model ourselves

            17  on.

            18   Q    You know, I don't -- no one is suggesting it's peculiar,

            19  it's just a fact, that's what he observed, can we agree on

            20  that?

            21   A    Well, within the groups that he studied he also found --

            22   Q    Well, can we just -- hold on, Professor Wu.  I mean, I

            23  appreciate that you want to go on and I'm sure that Ms. Massie

            24  will give you an opportunity if you want to follow up, and I

            25  want you to have every opportunity to, but I want to try and

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             1  get a few of these questions, if you don't mind.

             2   A    Sure.

             3   Q    And then finally, do you recall the great success that he

             4  had with all the groups that adopted the team study and the

             5  extra effort, do you recall the success rate he had?

             6   A    Sure.  Well, what I was going to say just a moment ago

             7  and until I was cut off --

             8   Q    Sure, sure.

             9   A    He found also that significant numbers of Chinese

            10  Americans did poorly.  One of the interesting findings that he

            11  had was Chinese American students don't do uniformly well at

            12  math, nor do African American students do uniformly poorly,

            13  there is tremendous variation, and he found, and I think this

            14  is borne out not just by his work, but the work of many others

            15  and by what I see in classrooms myself, that forming study

            16  groups, finding a group of people with whom you can study, is

            17  helpful to students.  I absolutely agree with you on that.  I

            18  just think it's odd to describe that as a particularly Chinese

            19  American thing to do.

            20   Q    Well, again, I'm not going to quibble with you and I'm

            21  not saying it's a particularly Chinese American thing to do,

            22  and of course, we're all individuals with different levels of

            23  work and different levels of ability and within study groups

            24  some are going to do better, some are going to do worse, but do

            25  you recall that Professor Treisman reports eliminating entirely

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             1  the gap in math performance between white and Chinese American

             2  students and the black students that participated in his

             3  program, do you recall that?

             4   A    You mean between all three groups?  I actually have to

             5  tell you the truth, I don't remember what his report was on

             6  white students.

             7   Q    All right.  Well, do you recall that he eliminated the

             8  gap in performance in math, college math, between the Chinese

             9  American groups and the African American groups?

            10   A    I recall that he made spectacular progress.  I don't know

            11  if he completely eliminated the gap.  If you were to tell me

            12  that, I would not be surprised.

            13   Q    And his work is continuing now that he has moved to the

            14  University of Texas at Austin, do you understand that?

            15   A    That's my understanding.

            16   Q    Professor Wu, do you consider that your law school class

            17  in 1991, the class you graduated with, was racially and

            18  ethnically diverse?

            19   A    Depends on what you mean by that.

            20   Q    I'm just asking you.  You're a law professor, you

            21  understand the issues, I assume, in this lawsuit, and I am

            22  asking you, do you have a view that your law school class that

            23  you graduated with in 1991 was racially and ethnically diverse?

            24   A    I have seen better, I have seen worse.  Was it diverse?

            25  Yes.  Was it as diverse as it could be?  No.  Was it as bad as

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             1  it was previously?  No.  Would it be worse in the absence of

             2  affirmative action?  Yes.

             3             There needs to be a benchmark.  Again, I don't mean

             4   to quibble with you, but was it diverse compared to what?  Was

             5   it diverse compared to the early '70's, when the University of

             6   Michigan law school had no Asian Americans and not more than a

             7   handful of African Americans?  Of course, it was much more

             8   diverse than the class that had -- should I pause?

             9   Q    No, you can go ahead, keep going.

            10   A    That's okay.  I'll give you a moment.

            11   Q    Sorry.  Go ahead.

            12   A    Was it diverse as compared to a benchmark of 25 years

            13  before that time?  Absolutely, unquestionably.  If you look at

            14  Asian American numbers, they went up and down.  They

            15  fluctuated.  I believe my graduating class had fifteen Asian

            16  Americans, the graduating class before that had six.  You don't

            17  have to go back very far, though, to a point where the numbers

            18  are consistently in the single digits.  You only need to go

            19  back from my class, I believe, maybe five years and you'll see

            20  a run of, for Asian Americans, single digits all the way back

            21  to the mid '70's when they began keeping track.

            22   Q    Well, the --

            23   A    And I'm just answering with respect to Asian Americans,

            24  you know.  With respect to African Americans, with respect to

            25  other people of color, those would be different answers.

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             1   Q    Well, I'm just asking you about your law school class,

             2  which was 1991, so that's when you graduated.

             3   A    I understand, but I just hope that we can use concrete

             4  terms instead of abstract terms.  Although I may be a law

             5  professor, I prefer to be concrete and in some sense simple

             6  than to talk about abstractness.

             7   Q    Well, let me just represent to you, and if you want to,

             8  if you want to pull out the exhibit I'm happy to do it, but

             9  Exhibit 97, which has already been introduced into evidence,

            10  and it indicates --

            11   A    I would love to see it, if it wouldn't be any trouble.

            12   Q    It's Exhibit 97.

            13   A    Thank you.  I'd appreciate that.

            14   Q    Surely.

            15   A    Okay.  What do you want me to look at?

            16   Q    I'm just looking at your class.

            17   A    For '91, I see it.

            18   Q    For 1991, and I have done the math, and again we always

            19  get embarrassed when we come up here, because we have not done

            20  very well in math, but I think I have had my associate help me

            21  double check it.

            22             Your class appeared to have 17 percent total

            23   minorities or students of color, if you included the Asian

            24   American students, and approximately 13.6 percent of what

            25   would be characterized as under-represented minorities.  Would

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             1   that square with your recollection of your class, roughly?

             2   A    If you tell me those are the percentages, I'm prepared to

             3  trust your math skills.

             4   Q    All right.  And today, I believe that we have seen

             5  evidence that the University of Michigan Law School has between

             6  14, 14 and-a-half percent, something along those lines today,

             7  in the incoming class, of under-represented minorities, so just

             8  assuming -- that's not on that chart, that's from another --

             9   A    Oh, I'm sorry, okay.

            10   Q    Professor Wu, my question to you is simply this:  Do you

            11  consider that to be a racially and ethnically diverse class

            12  today?

            13   A    I'm sorry, I was looking at the table.  Can you tell me

            14  the numbers again?  Is it in an exhibit?  I would be happy to

            15  look at it.

            16   Q    Well, it's one of Professor Raudenbush's exhibits.  I

            17  think you may have watched Professor Raudenbush testify.  He

            18  says that in the year 2000, the under-represented minorities

            19  were 14.5 percent as opposed to the almost 14 percent in that

            20  class.

            21   A    And that's African Americans and Latino and Native

            22  Americans?

            23   Q    Yes, sir.

            24   A    Okay.

            25   Q    And so my question simply is, do you consider that to be

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             1  a racially and ethnically diverse class?

             2   A    I would say, again, and I really want to apologize if I

             3  seem to be arguing with Counsel here, but I just don't know

             4  what the benchmark is for that.  Yes, is it racially diverse in

             5  some sense, yes.

             6   Q    Do you consider it to have a critical mass of

             7  under-represented minority students?

             8   A    What is the breakdown specifically among the groups?

             9   Q    Well, first I'm just asking you, as an aggregate, do you

            10  consider that to be a critical mass of under-represented

            11  minority students?

            12   A    In the aggregate, what are the numbers again?

            13   Q    14.5 percent.

            14   A    No, can you tell me -- give me the numbers?

            15   Q    It's 14. -- I can't.

            16   A    No, not the percentage.

            17   Q    Oh, surely I can.  Yes, I can, I'm sorry.  From his

            18  exhibit, 58 students, 58 students out of a class of 100 and --

            19   A    That can't be right.

            20   Q    I don't have it.  I'm sorry.  I don't have it.  I don't

            21  have the number.

            22   A    All right.  You said again 58 students --

            23   Q    No, no, no, I apologize.  That's not right.  I don't want

            24  to argue with you.  If you can't answer it, you can't answer

            25  it, that's all.

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             1   A    But I don't know what the numbers are.  If you tell me

             2  the numbers, I'll try to answer it.

             3   Q    Well, assume a class comparable to the size of your

             4  class, roughly.  Let's assume it was comparable to the size of

             5  your class.

             6   A    Which is how many?  Let's see.

             7   Q    400?

             8   A    423, it says here.

             9   Q    Maybe slightly smaller, actually.  Professor Wu, I don't

            10  -- if you can't answer whether

            11             or not that's a racially and ethnically diverse

            12   class, feel free to tell me.

            13   A    Well, I want to make sure I understand your question.

            14  You have got 420 students total, right?

            15   Q    In your class.

            16   A    Right.  Okay.  And then you're asking me to assume that

            17  it's 58 African Americans and Latinos and Native Americans.

            18   Q    I'm not asking to assume anything.  Does 14.5 percent

            19  under-represented minority students constitute a critical mass,

            20  in your opinion, yes or no, and if you can't tell me --

            21   A    It could.

            22   Q    All right.  What is the racial and ethnic breakdown at

            23  Howard, where you're currently teaching, where you have been

            24  teaching for the last six years, the racial breakdown?

            25   A    I'm sorry, the racial breakdown of what I have been

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             1  teaching for six years?

             2   Q    Where you have been teaching, I'm sorry.

             3   A    You mean in the courses I have taught?

             4   Q    No, sir, in the Howard --

             5   A    Oh, in the law school?

             6   Q    Yes, sir.

             7   A    Oh.  Faculty or students?

             8   Q    Students.

             9   A    I would say that I can't be that precise, but I would say

            10  it's been approximately 80 to 85 percent black, but that figure

            11  may be somewhat misleading.  It's probably closer to 60 percent

            12  African American, because we enroll a fairly high number of

            13  non-U.S. citizen JD students and a fair number of people of

            14  mixed racial identity who may identify in various ways, but we

            15  have probably 20, approximately 20 percent of our student body

            16  is non-black and about 40 percent is non-African American.

            17   Q    I was just curious, in preparing for your testimony, and

            18  I am going to tell you, I'm going to be reading from what is

            19  described as the Official ABA Bar Association Guide to Approved

            20  Law Schools, 2001 Edition.  I'm not asking you to accept this,

            21  I'm just asking you to read what it is, and you tell me if this

            22  seems to be accurate for Howard.

            23   A    Sure, okay.

            24   Q    It says that the entering class this year --

            25  incidentally, the entering class is about 139 students, would

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             1  that be --

             2   A    Sounds right.  We enroll between is 125 to 155.  Our

             3  target is I believe 150, so it falls short some years.

             4   Q    It says for the fall, this would be the fall of 1999,

             5  that there were 139 students that entered Howard, and 124 or

             6  89.2 percent were African American.  Would that be higher than

             7  you would expect?

             8   A    That would be higher, and I would not -- I'm not sure I

             9  would accept that as an accurate assessment.

            10   Q    Fair enough.  Fair enough.  It indicates there are zero,

            11  there were zero foreign

            12             nationals in the class last year.  Now, is that

            13   something that you wouldn't accept?

            14   A    In the -- this is the entering class of?

            15   Q    1999, 2000.

            16   A    Give me a moment to think here.  We're in the 2000, 2001

            17  academic year, so those are the students who are second year

            18  students; is that right?

            19   Q    Yes, they would be, that's right.

            20   A    And you're telling me it reports zero percent foreign

            21  nationals?

            22   Q    That's what it says.

            23   A    I'm absolutely certain that that number is not correct.

            24   Q    Fair enough.  I accept that.  If you're saying it's not

            25  correct, it's not correct.

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             1   A    May I finish?

             2   Q    Sure.

             3   A    The number one student in our class, Andrea Ricci, is

             4  someone who I recruited personally.  She turned down a full

             5  scholarship at Boalt Hall School of Law because of her concerns

             6  that the student body there was not diverse, and accepted a

             7  full scholarship at Howard.  She is a Canadian National.  She

             8  is of mixed racial background.

             9             I am not sure how the ABA asks for the numbers to be

            10   reported.  I'm also not sure how our admissions dean reports

            11   those numbers.  But I know Ms. Ricci, and she works for me,

            12   and she is a foreign national.

            13   Q    Fair enough.

            14   A    As well as at least two of her classmates in my Civil

            15  Procedures class of 50 students, so a total of three out of 50,

            16  six percent, and I have no reason to believe that my particular

            17  section is unrepresentative in some way.

            18   Q    Is that a Civil Procedures class you teach of first year

            19  students?

            20   A    Yes, it is.

            21   Q    And it's approximately --

            22   A    About 50.  We divide it into three, so however three goes

            23  into it, so it's 139.

            24   Q    So, well, roughly --

            25   A    So 48, or out of 47.

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             1   Q    If you have a class, the target is 150, three sections of

             2  approximately 50 students each?

             3   A    Right.

             4   Q    Do you teach any classes where you have no white

             5  students?

             6   A    Do I teach -- I'm not sure.  It's possible.

             7   Q    How about, do you --

             8   A    And I want to make sure that the Court understands I'm

             9  not being evasive when I state it's possible.

            10             THE COURT:  That's okay.

            11             THE WITNESS:  I have a number of students who are

            12   fairly light skinned and I don't make it a practice to ask

            13   them if they are white or if they are black or what they

            14   consider themselves to be.

            15  BY MR. PURDY:

            16   Q    As a matter of fact, let me ask you this, just while

            17  we're on this subject.  Would you be in favor of eliminating

            18  the little boxes we're asked to check off on application forms

            19  that describe our race or ethnicity?

            20   A    No, I would not be.

            21   Q    Do you recall how many -- and I'll just tell you, the ABA

            22  figures said that four caucasian students entered Howard last

            23  year.  Would that be consistent with your recollection?

            24   A    Given that I know that I had three Canadian students last

            25  year, I would not put much stock in those numbers.

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             1   Q    Fair enough.  Fair enough.

             2             THE COURT:  Three Canadian students?

             3             THE WITNESS:  Yes, three Canadian, three black

             4   Canadian students.

             5             THE COURT:  Did you say Canadian or caucasian?

             6             MR. PURDY:  Caucasian.

             7             THE COURT:  Caucasian.

             8             THE WITNESS:  The reason I mention this is, he is

             9   reading zero percent foreign nationals and I'm saying, I had

            10   three Canadian students, I know they are Canadian, and --

            11             THE COURT:  This is a different question.

            12             THE WITNESS:  Right, but what I'm saying, though --

            13             THE COURT:  Oh, I see, you do not put stock in it?

            14             THE WITNESS:  It's not a good number, because he is

            15   saying zero percent foreign nationals, I know my section was

            16   six percent, so if that number is not accurate, I would not

            17   have that much faith in the remainder of the numbers.

            18  BY MR. PURDY:

            19   Q    Fair enough.  Fair enough.  I'm going to ask you one more

            20  number, but if you

            21             don't know, tell me you don't, and if you don't, I'm

            22   not asking you to accept it.

            23             In the case that there were three Asian Americans

            24   that were entered with the class last year, would that also be

            25   a number that you would take issue with?

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             1   A    That sounds more plausible than four caucasian students,

             2  but I don't know every student.  Sure, it sounds plausible.

             3   Q    I gather it's safe to say that you have classes, you have

             4  taught classes, where there have been no Asian American

             5  students in the class?

             6   A    That's true.

             7   Q    And you say it's possible, you're not sure, but you may

             8  have taught classes where there were no white students in the

             9  class, correct, you said that?

            10   A    Right.  There are students who are light skinned.  I

            11  don't know if they would identify themselves as white or not.

            12   Q    Fair enough.  But isn't it true, and in fact, I think you

            13  used the word, and I wrote it down, there is tremendous

            14  diversity within the law school at Howard University, is there

            15  not?

            16   A    There is.

            17   Q    And you can have a class, you personally as the only

            18  Asian American professor there, you can have a class made up of

            19  students all of whom would be identified as black, for example,

            20  and you would have tremendous intellectual and ideological and

            21  political and religious diversity in that class; correct?

            22   A    That is true, yes.  That's true.

            23             MR. PURDY:  All right.  Your Honor, may I approach

            24   the witness?

            25             THE COURT:  You may.

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             1  BY MR. PURDY:

             2   Q    Professor Wu, I want to show you what has been marked as

             3  Exhibit 216.  It's just a copy of a document that has come in

             4  in the last few days.  It talks about UCLA.  You made some

             5  comments about --

             6   A    Is this the one that shows that there was the .1 percent

             7  increase in the number?

             8   Q    Yes, this is it.

             9   A    Okay.

            10   Q    This is that document.

            11   A    Okay.  Yes, I had not previously seen it, but I have some

            12  familiarity with it from your earlier examination.

            13   Q    You were -- well, you were here in the courtroom?

            14   A    Yes, yes.

            15   Q    Let me ask you this question.

            16   A    Which part do you want me to look at?

            17   Q    The front, the front, very front.  Obviously, we're

            18  talking about post-Proposition 209

            19             in California.  This is the year 2000, November of

            20   2000, just a few months ago when these figures are reported,

            21   so we're talking post-Proposition 209; correct?

            22   A    Yes.

            23   Q    And in the fifth paragraph down they begin to talk about

            24  the students that have come in and it says, new data show that

            25  Asian Americans continue to be the fastest growing and largest

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             1  ethnic group on campus constituting 40.6 percent of this fall's

             2  freshman class.  Do you see that?

             3   A    Yes, I do.

             4   Q    All right.

             5   A    It's followed by the statement that the Filipino student

             6  enrollment has dropped by about 19 -- exactly 19 students.

             7   Q    All right.  But aggregated, because they actually include

             8  Filipinos in the -- they aggregate Filipinos --

             9   A    I understand.

            10   Q    All right.  And they talk about African Americans

            11  accounting for 3.8 percent and Latino-Chicanos accounting for

            12  12.8 percent, do you see that?

            13   A    Yes, I do.

            14   Q    And then down in the next-to-last paragraph they talk

            15  about 33 percent of the students being white or caucasian.  Do

            16  you see that?

            17   A    Yes.

            18   Q    Do you consider this campus to be a racially and

            19  ethnically diverse campus?

            20   A    I would say it's racially and ethnically diverse with

            21  respect to some Asian American groups.  See, the data about the

            22  increase in the size of the Asian American proportion of the

            23  class has to be put into context of Asian American population

            24  growing in California.

            25   Q    Can I stop you just because you just raised -- I think

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             1  you testified this morning, ten percent of the State of

             2  California is Asian American, and that was the term you used.

             3  Did you mean to include all of the groups?

             4   A    Yes, at least about ten percent.  It may have gone up

             5  slightly in the recent census.

             6   Q    Do you consider the Asian Americans, whether or not it's

             7  ten percent, do you consider the Asian Americans at UCLA to be

             8  over or under-represented on that campus?

             9   A    Compared to what benchmark, in their population, their

            10  portion of the population in general?   Yes, they would be

            11  over-represented compared to the proportion that they make up

            12  of the State's population, which I would suggest is, for Asian

            13  Americans in this context, perhaps, not the best benchmark.

            14   Q    Do you recall Dean Garcia -- well, strike that.  Let me

            15  ask you this question:  In your schooling, in

            16             fact, you have told us when you and I met a few

            17   months ago, you went to public schools here in --

            18   A    Yes, Plymouth Salem High School.

            19   Q    I understand.  And then after graduating from high school

            20  you went to Johns Hopkins in Baltimore?

            21   A    That's right.

            22   Q    A highly selective university; correct?

            23   A    That's what I'm told.

            24   Q    And from there you went to the University of Michigan Law

            25  School?

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             1   A    That's right.

             2   Q    Again, another highly selective law school; correct?

             3   A    As I'm told, yes.

             4   Q    You accept that, do you not?

             5   A    I accept it.  I don't know what to make of the fact that

             6  they let me in.

             7   Q    All right.  Well, you were a resident.  You also got a

             8  preference, didn't you?

             9   A    Yes, as we discussed, I benefitted from the affirmative

            10  action program.  It's my understanding that state residents

            11  have statistically significant lower numerical -- lower test

            12  scores and grades.

            13   Q    But in any event, whatever the preference may have been,

            14  you at least benefitted from that, you were a Michigan

            15  resident.

            16             Now, my question to you is, have you ever attended a

            17   school that had more racial and ethnic diversity than the

            18   current campus at UCLA?

            19   A    Well, see, the problem --

            20             THE COURT:  It's a yes or no, or else we will be

            21   here all night.  We have other witnesses and you have to start

            22   answering questions yes or no.  If you can't, you have to tell

            23   us you can't.

            24             THE WITNESS:  Okay.  I can't answer that question.

            25  BY MR. PURDY:

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             1   Q    All right.  Do you recall when Dean Garcia was here last

             2  week, I believe you sat in and saw most if not all of his

             3  testimony?

             4   A    I saw the second day, I think it was.

             5   Q    All right.  Do you recall that Dean Garcia told us that

             6  as of just a few months ago non-Hispanic whites, I believe was

             7  his term, represented approximately 50 percent of the

             8  population, so there is no longer a majority population out

             9  there?

            10   A    Uh-huh.

            11   Q    Given that, let's assume Dean Garcia is correct, and that

            12  50 percent of the State of California is now non-Hispanic

            13  white, would you consider whites to be over or

            14  under-represented on the campus at UCLA?

            15   A    Well, if I'm required to accept the benchmark that you

            16  have set, which is are they under-represented compared to the

            17  proportion they make up of the state's population, that's

            18  actually an easy question to answer as a mathematical matter.

            19  If their population in the state is 50 percent and their

            20  population on the campus is 34 -- 33 percent, then yes.

            21   Q    They are under-represented?

            22   A    Using the hypothetical that you have given me.

            23   Q    Fine.

            24   A    Which I think has flawed premises, but I'll try to answer

            25  yes or no.  With those premises, yes.

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             1   Q    What would be a better benchmark?  And I'm not suggesting

             2  we should have any benchmarks --

             3   A    Sure.

             4   Q    -- for whether any group is over or under-represented,

             5  I'm not suggesting that at all.

             6   A    Sure.

             7   Q    But if we're going to use that phrase, what would be your

             8  benchmark for the white students?

             9   A    Well, let me make two observations about this.  First,

            10  the integration of Asian Americans says nothing about the

            11  integration of African Americans, okay.

            12             And second, let me suggest at least one possible

            13   benchmark that is, I think, clearly more appropriate.  Whether

            14   it's the best one, I don't know.  A more appropriate benchmark

            15   would be the pool of UC-qualified students for looking at the

            16   under or over-representation of the white/ caucasian students

            17   and the Asian American students, or at the applicant pool.

            18   Either of those would be a better benchmark than what you have

            19   suggested.  There might be still better benchmarks.  In fact,

            20   I'm quite confident we could devise still better benchmarks

            21   than that.

            22   Q    Professor Wu --

            23   A    But both those that I have suggested would be better

            24  benchmarks, because no one, to my knowledge, is arguing for

            25  exactly proportional representation of every group at every

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             1  institution in percentages equal to that which they make up

             2  within the general population.

             3   Q    Surely.  You and I agree again, we have now at least two.

             4  That's good.  So let's see if we can --

             5   A    So we're making progress.

             6   Q    We're making progress.  Do you consider -- let me

             7  represent to you that

             8             based on another exhibit, it's 131 or 132, but we

             9   don't need to go to it, I'm just going to read it to you,

            10   UCLA's law school has 17.4 percent Asian American Pacific

            11   Islander students.  Would you consider that over or

            12   under-represented?

            13   A    Compared to the population that exists in the state, it's

            14  over -- if that's your benchmark, they are over-represented.

            15  You know, you don't need much of a background in statistics,

            16  nor do you need much of a background in knowledge about Asian

            17  Americans to compare those two numbers.  If your benchmark by

            18  which you compare is the proportion that Asian Americans

            19  represent of the state population, and if we accept that's ten,

            20  eleven, give or take a few percent, then all you have to do is

            21  look at whether the other number that you're comparing is

            22  greater or lesser than ten or eleven percent.

            23   Q    Professor Wu --

            24   A    So if one accepts your premise, yes.

            25   Q    Professor Wu, you talked earlier today, and I think we

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             1  have touched on it briefly, but I do want to make -- I do want

             2  to see if we can maybe even reach a third agreement.

             3             Even within the group that is characterized by these

             4   universities as Asian American, you told us it includes some

             5   two dozen different groups that have different cultures and

             6   linguistics and religions, do you recall that?

             7   A    Uh-huh.

             8   Q    There's a rich diversity --

             9   A    I'm sorry, yes.

            10   Q    That's fine.  There is a rich, rich diversity even within

            11  the

            12             group known or characterized as Asian American;

            13   true?

            14   A    Sure.  If you have representation of all those groups, if

            15  you have only Chinese Americans whose parents came from

            16  mainland China via Taiwan, then you would have a group of Asian

            17  Americans, but you wouldn't have as much, in fact, you'd have

            18  virtually no internal diversity.

            19   Q    Even within the group, the 33 percent of white students,

            20  wouldn't you agree there is tremendous diversity of both

            21  backgrounds and ethnicities and ancestries and religion,

            22  wouldn't you agree with that?

            23   A    Of background, ancestry, ethnicity and religion, yes.

            24   Q    The same would be true --

            25   A    But not racial diversity.

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             1   Q    Not racial diversity.  I'm just talking about there would

             2  be tremendous intellectual diversity, diversity of all sorts,

             3  even within that group of 33 percent of white students, you

             4  would agree with that, would you not?

             5   A    Well, with the glaring exception of racial diversity and

             6  the intellectual diversity that would come from an

             7  understanding, a firsthand understanding through experience of

             8  the effects of racial discrimination.

             9             You know, you could gather a group, you could gather

            10   a group that was 100 percent white males and have enormous

            11   diversity of height, for example.

            12   Q    Why couldn't you also -- let's just take your example

            13  there, because I think that's a good one.  Let's use that.

            14             If you gathered a large group of just white males,

            15   are you suggesting you wouldn't have broad diversity in that

            16   group?

            17             You may not have racial diversity, but are you

            18   suggesting there would be no diversity in that group, no

            19   meaningful intellectual, religious, ideological, political,

            20   linguistic diversity?

            21   A    You would have many forms of diversity, but many of them

            22  would be like diversity of height, a form of diversity that for

            23  policy purposes we're not especially interested in.  Nobody to

            24  my knowledge, and perhaps we can agree on this, wants the

            25  University of Michigan Law School to have diversity of height

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             1  within its entering class.

             2   Q    With all due respect, Professor Wu, I didn't mention

             3  height, but can you agree --

             4   A    You said use my hypothetical, height.

             5   Q    No, sir, I'm sorry, I'm talking about, if you take a

             6  large group of just white males, the example that you raised,

             7  wouldn't it be true that you would have a broad range of

             8  intellectual, ideological, religious, political diversity

             9  within that group?

            10   A    You could, but the likelihood of your having it decreases

            11  significantly if you leave out people of color and white women

            12  and women of color.

            13   Q    Let's talk about -- let's use a similarly large sample of

            14  not white males, we will use African American males.  Wouldn't

            15  it be true that you would have a broad range of intellectual,

            16  ideological, religious, political, linguistic and ethnic

            17  diversity within that group that may be black?

            18   A    But they are not mirror images.  They are not mirror

            19  images, because the blacks are a racial minority and that

            20  produces a set of effects that are different.

            21             An institution that is all black is not the same as

            22   an institution which is all white in its social meaning.  All

            23   black institutions, such as the National Bar Association, for

            24   example, which is by the way not all black, but if the NBA

            25   were all black, it would be easy to look at its history and

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             1   realize that the National Bar Association was founded because

             2   the American Bar Association excluded African Americans until

             3   two generations ago, so they are not mirror images.

             4   Q    I apologize, but -- never mind.  Do your Asian American

             5  students, however many you

             6             may have come through your classes, do they do well

             7   at Howard?

             8   A    Some do and some don't.

             9   Q    Do your white students, however many you may have, do

            10  they do well at Howard?

            11   A    Some do and some don't.

            12   Q    In your experience, given the fewer -- I mean, it's a

            13  unique school and obviously it is a school with a tremendous

            14  tradition and background to produce tremendous lawyers, but let

            15  me just ask you, the Asian and white students clearly are a

            16  distinct minority on that campus, would you agree with that?

            17   A    Yes.

            18   Q    Do you sense a reluctance on their part to ever speak out

            19  in class?

            20   A    Do I sense a reluctance on their part to ever speak out

            21  in class?   Sure.  I sense a reluctance on the part of many of

            22  my students, including many of my black students to speak out

            23  in class.

            24   Q    Well, my question, Professor Wu, and I apologize if I

            25  didn't make it clear, I clearly didn't, do they -- do you sense

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             1  that they feel a reluctance to speak out in class because they

             2  are a distinct minority in that class?

             3   A    I would say that I have had non-black students either

             4  tell me or imply that because there is not a critical mass,

             5  because in that particular class that particular year there was

             6  just one or two of whatever demographic group they happen to be

             7  a part of, that they feel less comfortable.  Just goes to show

             8  the importance of a critical mass.  I haven't had that happen

             9  when I have had larger numbers, and again, we're still talking

            10  not tremendously large numbers, but when there are larger

            11  numbers.

            12   Q    Well, have you ever had a student, a white or Asian

            13  student who may have been the only member of their racial or

            14  ethnic group in your class who you perceived to be perfectly

            15  comfortable in the class?

            16   A    No, and again, I don't mean to be too clever here, but I

            17  don't perceive any student to be totally comfortable in a law

            18  school class, so.

            19   Q    Well, let's put it this way:  Did you perceive them to be

            20  as comfortable as they could without their race or their

            21  distinct minority status being a factor in how they felt?

            22   A    I'm not absolutely sure of how they felt, but I would say

            23  that their race where they were the only person of that

            24  background in the class at the time inevitably formed part of

            25  their experience, if for no other reason than the simple fact

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             1  that they stood out visibly.

             2   Q    And you sensed or did they tell you that?  Did a white

             3  student come up or an Asian American student come up to you and

             4  actually say, I feel uncomfortable because I stand out in this

             5  class because of my skin color?

             6   A    I have had one student say that, yes.

             7   Q    How many white students have you had over your six years

             8  there?

             9   A    I would say, let's see, I have taught Civil Procedure --

            10  I'm thinking out loud, you will have to pardon me -- six times

            11  fifty students, that's 300 students, maybe each year two white

            12  students, so that's about twelve in Civil Procedure.  I have

            13  taught Immigration.  Let's see, I would guess maybe 20, 25 at

            14  the most.

            15   Q    So you have had one out of 20 to 25 students who said

            16  they felt uncomfortable because of their color?

            17   A    I'm sorry?

            18   Q    You said -- so is it fair to say one out of 20 to 25

            19  white students have come to you over the history of your six

            20  years there and said they felt uncomfortable because of their

            21  color; is that correct?

            22   A    Well, none of them have actually used the word, color.

            23  They haven't said, I feel uncomfortable because of my color.

            24   Q    Their minority status in the class?

            25   A    Yes.

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             1   Q    All right.  Incidentally, does Howard University use the

             2  LSAT in its admissions process?

             3   A    Yes, we do, but we make an effort to look beyond just the

             4  LSAT.

             5   Q    Most schools do, do they not, in your experience?

             6   A    To my knowledge, yes.

             7   Q    Do you know if they -- if Howard uses any different

             8  method of evaluating LSAT scores for any of its applications

             9  irregardless of their race?

            10   A    I'm sorry, I have to confess, I honestly am not sure what

            11  it is you're asking.

            12   Q    Do you know whether or not Howard considers the scores of

            13  any particular applicant differently depending upon his or her

            14  race?

            15   A    I'm not actually intimately familiar with how we evaluate

            16  candidates to fill out our JD class.  I participate in the

            17  process only after the decisions have been made.

            18             My understanding is we have a program, a special

            19   admit program, through which we admit about ten students,

            20   again, out of about 150 or so, and for those ten students,

            21   roughly, and it doesn't have to be exactly ten, it can be

            22   slightly more or slightly less, that's a goal, ten, we will go

            23   significantly below the LSAT, that is, the mean for the

            24   remainder of the class, and we look for people with a mission

            25   connection, people who we think could do well, who though

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             1   their LSAT scores or their GPA might not look like that of the

             2   rest of the class, but if offered the opportunity, might be

             3   able to excel.

             4   Q    And race plays no role in determining who that ten or so

             5  students is, would that be a fair statement?

             6   A    No, that would not be a fair statement.

             7   Q    All right.  So race is used in determining who those ten

             8  students might be?

             9   A    Well, let's put it this way:  The number of non-black

            10  students, the number of white students who claim a mission

            11  connection is just far smaller.  That's not to say they can't,

            12  it's not to say they are precluded from it, but just as an

            13  empirical matter of fact.

            14             For one thing, people self-select and most white

            15   students don't think about applying to Howard, but even within

            16   the white students who apply to Howard, some of them don't

            17   know that it is a historically black college, but there are

            18   varying -- and some who mistakenly believe it must be an

            19   extraordinarily easy school to get into, because it's a black

            20   school.  Some of them have a much stronger mission connection

            21   than others, but it appears, and it should be no surprise

            22   given the dynamics of racial discrimination, it appears that

            23   people of color, especially African Americans, feel and are

            24   able to demonstrate a much stronger mission connection to

            25   Howard University.

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             1             THE COURT:  But that's not the question.

             2             THE WITNESS:  I'm sorry.

             3             THE COURT:  The question is, in those, in selecting

             4   those ten or whatever students, is race a factor in it?  Does

             5   it make any difference what race you are or is it the

             6   compelling story that the admissions committee feels will make

             7   that person a better candidate than perhaps their test scores

             8   show or something else because of life's experience and things

             9   of that nature --

            10             THE WITNESS:  Yes.

            11             THE COURT:  They use race as a criteria in that

            12   selection or is it reasons other than race, no matter what

            13   race they are?

            14             THE WITNESS:  Yes, I think Your Honor --

            15             THE COURT:  I think that's the question.

            16             MR. PURDY:  Thank you, Your Honor.  I obviously

            17   couldn't phrase it as well.  That's the question.

            18             THE WITNESS:  I would say yes, Your Honor, race is a

            19   factor, because these are linked.  Race and those factors are

            20   linked.  There aren't other factors that are divorced from

            21   race.  You, I think, can't divorce these people from their

            22   racial backgrounds, white or otherwise.

            23             THE COURT:  I understand, but you didn't answer the

            24   question.  Do they use race, other than as part of the factors

            25   that are in there, I mean, you know, that are just natural for

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             1   people when they have -- when you're looking at them for

             2   potential, and we have heard examples, four examples in

             3   Exhibit 4.  You don't have it there, but it's the University

             4   of Michigan policy, where they talk about somebody that came

             5   over here, was a boat person, really had a very, very, very

             6   steep ladder to climb, and though I forgot if it was a he or a

             7   she, I suspect it was a he, but with grades, you know, and an

             8   LSAT that weren't that good, they believed that this person

             9   could succeed, but they didn't use race as a factor, they

            10   used, obviously, other factors.  Only question is, in

            11   selecting these ten do they use race or do they just use the

            12   -- or if you don't know, I mean, you said you're not on the

            13   admissions committee, if you don't know --

            14             THE WITNESS:  I would say to the extent that I know,

            15   my understanding is it's both.  They are blended and they are

            16   linked and there is no way, so far as I know, and no attempt

            17   made to divorce these.  There just aren't that many white

            18   students, say, from South Central LA who have been active with

            19   the NAACP to come up with a plausible, concrete example.  It's

            20   not impossible, it just doesn't --

            21             THE COURT:  I understand there are not very many --

            22             THE WITNESS:  -- happen often.

            23             THE COURT:  I understand.   There might not be a

            24   boat person, either.

            25             THE WITNESS:  Right, but though very few people are

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             1   boat people, the number of Asian American boat people exceeds

             2   by many orders of magnitude the number in these days of white

             3   boat people.

             4             THE COURT:  The University of Michigan takes the

             5   position that it had nothing to do with the fact that the

             6   person was Asian or anything of that nature, it had to do with

             7   the circumstances surrounding the adversity that they went

             8   through in order to even get the GPA that they got on the

             9   tests and that they were a good candidate for success, had

            10   nothing to do whatsoever with race or anything else.

            11             THE WITNESS:  May I take one more stab at this?

            12             THE COURT:  No, that's okay.  I'm not sure you're on

            13   the committee for admissions.

            14             THE WITNESS:  Well, I think, though, part of

            15   Howard's view of these things and part of what attracts me to

            16   the institution is that the notion that racial discrimination,

            17   which is key to race, by definition, is part of the adversity

            18   that people have had to overcome.  There is no white student

            19   who has had to overcome the discrimination that is faced by

            20   someone who is African American, because they are African

            21   American.  Do you follow?

            22             THE COURT:  Absolutely.  I don't -- you know, I

            23   absolutely follow, but that's -- okay, never mind.

            24  BY MR. PURDY:

            25   Q    Let me -- I'm going to try and wrap this up here with a

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             1  couple of quick things.

             2             You testified here today, Professor Wu, extensively

             3   about your opinions on various matters, but I gather it's also

             4   clear, you don't pretend to speak for the Asian American

             5   community in terms of the monolithic view on the subject of

             6   affirmative action and the use of race in college admissions,

             7   would that be a fair statement?

             8   A    I think it would be fair to say that I don't speak and

             9  have never claimed to speak for every Asian American.

            10   Q    In fact, you told me about two Asian American professors

            11  that you in fact have had on your PBS television program, one

            12  was I believe a Professor Francis Fujiyama at George Mason, do

            13  you recall that?

            14   A    That's right.  And the other is Viet Dinh of Georgetown.

            15   Q    And of course, we have -- probably many of us got to know

            16  Professor Dinh over last November when he was prominently

            17  displayed on TV commentating about the presidential election,

            18  do you recall that?

            19   A    Yes.

            20   Q    All right.  And both Professor Dinh and Professor

            21  Fujiyama, you have characterized, as opponents generally of

            22  affirmative action; correct?

            23   A    Yeah, I would say Professor Fujiyama much more so.  Viet

            24  Dinh has written a story or two in which he has been quite

            25  ambivalent.  It's hard to tell if he comes out in the end being

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             1  supportive of affirmative action.

             2   Q    I want to go back to Dean Garcia briefly.  Were you here

             3  when he discussed the holistic admissions approach that he used

             4  in the Graduate School of Education at Berkeley?

             5   A    Yes, I was.

             6   Q    One of the best schools in the area of education anywhere

             7  in the country, would you agree?

             8   A    I don't know.

             9   Q    All right.  And of course, Dean Garcia told us that using

            10  the holistic approach and largely ignoring standardized test

            11  scores he was able to enroll a class, a talented class, that

            12  was made up of 28 to 30 percent under-represented minority

            13  students, do you recall that?

            14   A    Yes.

            15   Q    And you also recall Dean Garcia testifying, right where

            16  you were sitting, saying he did not consider race in those

            17  decisions; do you recall that?

            18   A    Yes, I do recall that.

            19   Q    Yet you, Professor Wu, I gather, based on our discussion

            20  a few months ago, don't believe that a race blind or race

            21  neutral admission system is even possible, isn't that true?

            22   A    I would say that I really honestly don't know what you

            23  mean by race blind or color blind, whichever phrase you prefer.

            24   Q    Well, let me -- isn't it true that you told me that in

            25  your view, race and racism affects every applicant and will in

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             1  some way be reflected in their application to college?

             2   A    Yes.

             3   Q    And that is the view you hold; correct?

             4   A    Yes.  It's the view that I have come to hold.  You know,

             5  I don't want to leave the Court with the impression that I have

             6  always supported affirmative action and do so fervently without

             7  regard to any of the facts.  I have been doing this work for a

             8  long time and when I started doing this work I was, to tell the

             9  truth, quite ambivalent, and I think as someone who is

            10  ambivalent, was ambivalent, but had an open mind, who

            11  investigated, who looked at a wide range of sources from law

            12  and policy, sociology, psychology, history, as many disciplines

            13  as I could read, that over time I came to this conclusion, but

            14  it was not a foregone conclusion, it was not an assumption that

            15  I started with.

            16   Q    But you do believe today that there is no such thing,

            17  it's impossible to have a race blind or race neutral process,

            18  because in your view, race and racism affects every

            19  application?

            20   A    I think based on the evidence, including some of the

            21  evidence that I have seen here, which is eye-opening, it would

            22  be presently impossible to do that.

            23             Perhaps some day, if we see the sort of progress

            24   that comes with integration, we will be able to do that.

            25   Q    Professor Wu, let me ask you, if next year at UCLA,

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             1  hypothetically, let's just take that, if next year at UCLA --

             2   A    Actually, may I ask you if we could take a quick break?

             3             THE COURT:  I was waiting to do so.  We will stand

             4   in recess.

             5                  (Recess taken at 3:58 p.m.)

             6                  (Back on the record at 4:18 p.m.)

             7             THE CLERK:  All rise.

             8             THE COURT:  You may be seated.  Thank you.  Mr.

             9   Purdy, you may continue.

            10             MR. PURDY:  Thank you, Your Honor.

            11             THE WITNESS:  I just wanted to make sure this

            12   microphone is working.

            13             MR. PURDY:  Sure.  I guess mine is, too.

            14  BY MR. PURDY:

            15   Q    Professor Wu, are you familiar with the national task

            16  force that was put together on Minority High Achievement, have

            17  you ever heard of that?

            18   A    I'm not sure.  Could you tell me who put it together?

            19   Q    Well, it's a national task force and Dean Eugene Garcia,

            20  who testified here, served as a member of that task force and

            21  have you ever heard of that?

            22   A    I don't think I know its work.

            23   Q    All right.  Let me show you, and I apologize if I -- I

            24  have made copies.  I just want to discuss with you one page,

            25  and it's a lengthy report.

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             1             MR. PURDY:  And Counsel, let me give this to you.

             2   Here's the full report so you can see, but I'm going to hand

             3   out -- I just want to talk about one page.

             4   A    This is from the task force, you just mentioned?

             5   Q    Yes, yes.

             6   A    Thank you.

             7             MR. PURDY:  Your Honor, for the record, this is a --

             8   it's a report of the National Task Force on Minority High

             9   Achievement.  It was prepared by the College Board in 1999,

            10   and just for the record, on page iv, it lists Eugene Garcia,

            11   Dean Garcia, who we had here in the courtroom as a member of

            12   the task force, as well as Dr. Professor Treisman, the

            13   mathematics professor we have been talking about, and several

            14   others.

            15  And I have handed everyone a copy of page 17, and again, this

            16   is on the subject of the myth that you were talking about

            17   quite at length this morning and then this afternoon.

            18   A    May I ask, Counsel, may I see page 18?  I just read 17

            19  and I just am wondering what the remainder of it looks like, or

            20  the remainder of the particular section that 17 is taken out

            21  of.  Is there --

            22   Q    You can.

            23   A    It seems to keep going.  Thank you.

            24   Q    My only point in this, Professor Wu, is I would like to

            25  direct your attention to page 17.

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             1   A    Yes.

             2   Q    And I want to ask you whether or not you consider that

             3  the statements made here by this national task force, which

             4  included Dean Garcia, are a perpetuation of this model myth or

             5  the model minority myth that you were talking about earlier,

             6  and page 17, in the second full paragraph under cultural

             7  differences and peer influences, it says the following:

             8             "Researchers also have been examining differences in

             9   culturally-related experience of students from different

            10   racial and ethnic groups, especially in family, community and

            11   peer settings.  They have looked not only at students from

            12   minority groups that are not doing as well academically as the

            13   white majority, but also at students from groups, especially

            14   of East Asian origin, that often do better in school than

            15   whites.  Their findings are likely to be valuable in the

            16   development of new strategies for increasing the number of

            17   high achieving students from under-represented groups.

            18             For example, East Asian American high school and

            19   college students earn higher grades on average than other

            20   groups.  Two direct reasons are that they spend more time on

            21   their studies outside of school and are more likely to be part

            22   of academically-oriented peer groups in which they work

            23   together on their school work."

            24             And then there is a parenthetical:  "(Spending more

            25   time on studies and being members of academically-oriented

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             1   peer networks have been found to be valuable for students

             2   regardless of their race or ethnicity.)"

             3             "Why are East Asian secondary and college students

             4   in the United States more likely than other groups to avail

             5   themselves of these strategies?  One immediate reason is

             6   pragmatic.  Many of these students are from immigrant families

             7   and communities that see education as the key to good jobs and

             8   economic success, but this can be only a portion of the

             9   answer, since cross-cultural studies have found that many

            10   students in East Asian countries exhibit similar study

            11   patterns."

            12             And then finally, "An additional part of the answer

            13   may be found in research indicating that many East Asian

            14   American parents help their children learn to work together on

            15   school assignments beginning in the early years of schooling,

            16   a cooperative learning approach that is much less common among

            17   whites and other groups."

            18             "Many East Asian parents also stress homework and

            19   structure their children's out-of-school time in ways that

            20   support learning through both informal and formal means."

            21             And my question to you, Professor Wu, is that part

            22   of the model minority myth that you believe you -- that you

            23   were talking about earlier?

            24             MS. MASSIE:  Excuse me, Judge.  If I could interpose

            25   an objection briefly, I have no objection to Professor Wu

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             1   giving his opinion on this text, but to the extent that Mr.

             2   Purdy is implying an attribution to Dean Garcia, when Dean

             3   Garcia wasn't given an opportunity to respond --

             4             THE COURT:  There is no attribution to anybody or

             5   anything.

             6             MS. MASSIE:  Okay.  As long as that's clear.

             7             MR. PURDY:  It is.

             8             THE COURT:  You could have asked the same question

             9   without passing this out.

            10             MR. PURDY:  I could.  I just wanted everyone to be

            11   able to follow.

            12             THE COURT:  That's fine.  I have no problem with it.

            13             MR. PURDY:  Yes, sir.

            14  BY MR. PURDY:

            15   Q    And my only question to you is, Professor Wu, is this

            16  perpetuating the model minority myth that you talked about

            17  earlier?

            18             THE COURT:  Yes or no?

            19             MR. PURDY:  Yes or no.

            20             THE WITNESS:  May I answer no, but then add very

            21   briefly three quick points?

            22             THE COURT:  Sure.

            23             THE WITNESS:  By itself, what you have read doesn't

            24   do that, but my three points are:

            25  First, though this particular text doesn't do that, it's easy

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             1   for people to exaggerate.  Every stereotype has a germ of

             2   truth to it.  What happens, though, is that germ of truth gets

             3   distorted and exaggerated and what happens with the model

             4   minority myth is, a piece of it which is true is distorted and

             5   exaggerated and used and abused.  That's the first point.

             6  Second point I would make is, and the reason I asked for the

             7   remainder, and I have page 18, which I have read, but it seems

             8   to go on, so presumably, it covers more of the same topic

             9   under the same heading on 19 and 20, et cetera.  You have

            10   taken that out of context, I would suggest, with due respect,

            11   Counsel, because immediately after that --

            12             THE COURT:  You don't have to -- you say no?  It's

            13   obviously out of context -- or not out of context, but

            14   obviously not the whole thing.

            15             THE WITNESS:  But there is an important piece about

            16   race and about African Americans.

            17             THE COURT:  But if you saw this in a magazine, a

            18   magazine article or a New York Times article and you saw that,

            19   would your answer be yes or no?

            20             THE WITNESS:  If I saw just this by itself --

            21             THE COURT:  Just that.

            22             THE WITNESS:  I would say --

            23             THE COURT:  Same author, just the same.

            24             THE WITNESS:  Yes, this perpetuates a myth when you

            25   don't have this piece (indicating).

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             1             THE COURT:  You don't have the next page.

             2             THE WITNESS:  If you show half of something, it's

             3   very easy to perpetuate a myth, when if you show the whole

             4   thing it is then a more truthful picture.

             5             THE COURT:  I think that answers the question.  Just

             6   that language in and of itself.

             7             MR. PURDY:  It does.

             8             THE WITNESS:  But I would suggest page 18 --

             9             THE COURT:  But if you didn't have page 18, all you

            10   had was this, and that someone kept saying, this is it?

            11             THE WITNESS:  Yes, exactly, then that would

            12   perpetuate the myth.

            13  BY MR. PURDY:

            14   Q    Professor Wu, your own parents were clearly interested,

            15  deeply interested in your own educational achievement, were

            16  they not?

            17   A    I believe they were, yes.

            18   Q    Your father was a PhD structural engineer for Ford Motor

            19  Company?

            20   A    That's right.  He was a PhD, I believe it was structural

            21  engineering, may have been mechanical.  It was something beyond

            22  my expertise.

            23   Q    Your mother held a Masters degree in library science; is

            24  that correct?

            25   A    That's correct.

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             1   Q    And indeed, you attended the public schools in several

             2  Detroit suburbs; is that correct?

             3   A    Yes.  I attended public schools in Dearborn, Livonia and

             4  Northville, and then finally the Plymouth Salem High School.

             5   Q    And indeed, you occasionally moved during the course of

             6  your K through twelve schooling; is that correct?

             7   A    Yes, we did.

             8   Q    And you believe that the quality of the schools which you

             9  attended may have played a role in your parents' decision in

            10  where they resided; isn't that true?

            11   A    Right.  As I said in my deposition, I wasn't actually

            12  privy to the decision making when I was a child.  I think it

            13  may have had something to do with it, but it may have also been

            14  the need for a larger house as my brothers were born.

            15   Q    Clearly, though, you would say that your parents cared

            16  deeply about your own educational achievement?

            17   A    Yes.

            18   Q    And I gather that you feel blessed that you were

            19  fortunate to have parents that cared about your educational

            20  achievement, like all of us would be if we were that fortunate;

            21  correct?

            22             It's an important aspect of a young person's

            23   educational experience; correct?

            24   A    To have parents who care?

            25   Q    Yes.

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             1   A    Yes, my --

             2   Q    And parents who believe it's important that you achieve

             3  well academically?

             4   A    May I finish?  Yes, my parents did believe it was

             5  important to

             6             achieve well academically.  They, because of their

             7   experience, though, their limited experience, did

             8   misunderstand certain things which led to some significant

             9   disagreement between my parents and myself.

            10             They at one point wanted to disown me if I did not

            11   pursue an M.D., because in their view that was the only way,

            12   by pursuing an M.D. or a Ph.D. in engineering, that someone of

            13   Asian descent would be successful.  They were quite

            14   strenuously opposed to any undergraduate major or career path

            15   which did not have a technical component.

            16             So yes, I did benefit greatly, and not to be

            17   critical of my parents in their absence, but they had, I

            18   believe, accurately perceived racial discrimination, but

            19   perhaps also misjudged the role of Asian Americans and the

            20   likelihood that someone who was Asian American could be

            21   successful without strong technical skills.

            22   Q    Professor Wu, you talked at length about the various

            23  radio and television programs that you have appeared on and let

            24  me ask you if you recall appearing on a program in 1998 with

            25  Hugh LaFollette.  It was an educational radio program where you

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             1  were questioned about various issues, including affirmative

             2  action.

             3   A    I think I had done two, maybe three shows with him, so

             4  yes, I do recall appearing on that.

             5   Q    And do you recall telling -- when you were talking with

             6  Mr. LaFollette and he asked you, what is your view, what is the

             7  Asian American view on affirmative action, and do you recall

             8  telling him that Asian Americans like all Americans were

             9  troubled by affirmative action?

            10   A    Absolutely.

            11   Q    And do you also recall telling him that both whites and

            12  Asian Americans are hurt by these programs, they may be helped,

            13  but they are also hurt by these programs?

            14   A    I don't believe I would have said that whites and Asian

            15  Americans are hurt by these programs, but you may feel free, of

            16  course, to impeach me.

            17   Q    I'm not, I'm just asking if you recall and --

            18   A    I don't recall that.

            19             MR. PURDY:  All right.  Let me -- may I approach,

            20   Your Honor?

            21  BY MR. PURDY:

            22   Q    This is -- we're down to my final series of questions and

            23  let me just represent to you, Professor Wu, so that there is no

            24  misunderstanding, I actually had the privilege of listening to

            25  your radio broadcast over the weekend and transcribed it, had

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             1  it transcribed, and so I'll give you a moment, if you wish.

             2   A    Yes, I have read it.

             3   Q    All right.  And do you see --

             4   A    Yes, it says, were helped on the one hand by affirmative

             5  action here and there, but on the other hand, sometimes were

             6  hurt by it.

             7   Q    Right.  And then sometimes it hurts white and Asian

             8  Americans, do you see that?

             9   A    Yes.  It's part of a very long run-on sentence, I'm

            10  afraid.

            11   Q    Well, sure, but let's --

            12   A    Right.  It says, but on -- and so we want to do something

            13  about that, referring to discrimination, but on the other hand,

            14  the way affirmative action works sometimes doesn't do it quite

            15  as well as we like --

            16   Q    Well, in fact, if --

            17   A    -- because --

            18   Q    I apologize.  Sure.  Go ahead.

            19   A    I was going to read the whole sentence.  Why don't I

            20  start again.

            21   Q    Professor Wu, let me stop you.  Let's make it simple.

            22  Why don't you read the question and the answer and if --

            23   A    Sure.

            24   Q    That would be just fine.

            25   A    I would be happy to.

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             1             THE COURT:  Why don't we just mark it?

             2             MR. PURDY:  Why don't me just mark it.  All right.

             3   I'll tell you I'll mark it and I'll offer it.

             4             THE COURT:  And leave it, rather than reading it

             5   into the record.  If you read it into the record, it has to be

             6   an exhibit anyhow.

             7  Any objection?

             8             MS. MASSIE:  If the witness has had a chance to

             9   confirm that's what he said.  I assume that's an accurate

            10   transcript?

            11             THE WITNESS:  I don't doubt that it's what I said

            12   and --

            13             MR. PURDY:  We will get a number, Your Honor, mark

            14   it, offer it, and I'll go on.  I didn't transcribe the whole

            15   program.

            16  BY MR. PURDY:

            17   Q    Let me ask you this:  You talked about many subjects with

            18  Professor LaFollette, but one of the things that you said is

            19  that at the conclusion that it was important, one of the

            20  lessons is that we need to build bridges across the racial

            21  divide.  Do you recall that?

            22   A    I believe that I said that and that is a principle that I

            23  would stand by today.

            24   Q    Right.  You would agree with that as you sit here today;

            25  correct?

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             1   A    Absolutely.

             2   Q    Professor Wu, isn't the first brick in that bridge built

             3  on the promise which University of Michigan makes to every one

             4  of its applicants and students, and it's the promise that no

             5  person shall be discriminated against based on his or her race

             6  or ethnicity?

             7   A    Yes, and that promise is violated if the University of

             8  Michigan is not an integrated institution.

             9             MR. PURDY:  I have nothing further, Your Honor.

            10             THE COURT:  Redirect?

            11             MS. MASSIE:  Nothing.

            12             THE COURT:  Very well.  Thank you, Professor.  You

            13   may step down.  Appreciate it.

            14             THE WITNESS:  Thank you, Your Honor.

            15             MS. MASSIE:  Our next witness is Faith Smith.

            16                    F A I T H     S M I T H

            17  Was thereupon called as a witness herein, and after having

            18   first been duly sworn to testify to the truth, the whole truth

            19   and nothing but the truth, was examined and testified as

            20   follows:

            21                          DIRECT EXAMINATION

            22  BY MS. MASSIE:

            23   Q    Please spell your name for the record.

            24   A    Faith Smith.  F-a-i-t-h, S-m-i-t-h.

            25   Q    You're the President of a college, as I understand it.

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             1  Should I call you President Smith or Ms. Smith?

             2   A    Faith is preferred, thank you.

             3             THE COURT:  I think you're entitled to be called

             4   President.

             5             THE WITNESS:  Okay.  That's fine.

             6             MS. MASSIE:  Mr. Purdy is making a height adjustment

             7   with the microphone.  We were talking about height diversity.

             8             THE COURT:  I shouldn't tell you what you should be

             9   called.  I think if someone's a President of a college they

            10   deserve that respect, but whatever you would like.

            11             THE WITNESS:  Thank you.

            12  BY MS. MASSIE:

            13   Q    And my tendency is to degree, so President Smith, you

            14  have been President of Native American Educational Services

            15  College for 25 years; is that correct?

            16   A    I'm a founder.  It's the only private Native controlled

            17  college in the country.

            18             THE COURT:  Give me the name again.

            19             THE WITNESS:  It's NAES College, which stands for

            20   Native American Educational Services.

            21  BY MS. MASSIE:

            22   Q    And you have worked in Native American issues for pretty

            23  much your whole career?

            24   A    Yes.

            25   Q    You got a Masters at University of Chicago and a BA from

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             1  Purdue?

             2   A    That's right.

             3   Q    And you have had a number of consultancies involving

             4  issues in Native higher education, including an ongoing

             5  consultancy with the Kellogg Foundation?

             6   A    Yes, that's right.

             7   Q    You have done some things on a national and some things

             8  on a state level, but a great number of consultancies and

             9  served on a great number of boards that have direct bearing on

            10  the question of the status of Native Americans in higher

            11  education?

            12   A    That's right.

            13   Q    And the status of Native Americans more generally in

            14  American society?

            15   A    That's right.

            16             MS. MASSIE:  I would like to -- I would like to

            17   offer President Smith as an expert witness.  I would also ask

            18   if there are objections, if I can lay more of a foundation.

            19             THE COURT:  I expect they have no objection.

            20             MR. RICHTER:  That's fine.

            21             THE COURT:  She shall be received as a witness.

            22  BY MS. MASSIE:

            23   Q    Tell us who Native Americans are.

            24   A    Well, it's an amazingly diverse group.  There are some

            25  three million Native American people in this country today,

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             1  according to the 1990 census, who represent over 552 different

             2  tribes, including small villages in Alaska, pueblos in New

             3  Mexico, rancho rias in California, reservations all over the

             4  country.

             5             Those 552 tribes also have a different culture,

             6   different languages.  Among Native languages today some 30

             7   percent have totally disappeared, another 40 percent are in

             8   danger of being gone, and the remaining are in use.

             9             Indian people are -- have been involved with other

            10   groups over history.  For example, there are many Native

            11   people who married Japanese, because the interment camps were

            12   placed on tribal land, on reservation land, and in North

            13   Dakota, Arizona and California.

            14             Native people intermarried with those people who

            15   were descendants from Africa, married African Americans and

            16   supported the underground railroad.

            17             Native people were intermarried with Mexican

            18   families before there was a border.

            19             There are Native families who are part Irish.  Over

            20   the -- there were several great famines in Ireland and the

            21   last big famine was in 1845 and Choctaws at that time sent

            22   $177 to Ireland to help relieve the famine, a lot of money at

            23   that time, from a tribe that had been forced out of the

            24   southeast with nothing, dirt poor, but sent money to help

            25   relieve that burden.  That was probably one of the first

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             1   examples of international aid coming out of this country that

             2   you will never read about in American textbooks, but you will

             3   read in Irish textbooks.

             4             But it represents a kind of a sense of diversity

             5   that exists within our tribes that when you pray, you pray for

             6   one end of the earth to the other, so there is a sense, while

             7   tribal values are extremely important and very different from

             8   one tribe to the other, there is that sense that we are all

             9   relatives.

            10             Indian people live in urban areas.  Over 60 percent

            11   of all Native people live off reservation.  The other 40

            12   percent still live in tribal communities.  Most of us are

            13   enrolled in our tribal communities back at home, and carry

            14   certain rights and certain responsibilities along with that

            15   enrollment.

            16   Q    What does -- what is enrollment?

            17   A    Well, it's a controversial system.  There are over

            18  30-some definitions of Native Americans coming out of the

            19  Government, various forms at the State level, the Federal

            20  level, other kinds of agencies, and one way to identify people

            21  who belong to a particular band, not just to a tribe, but to a

            22  band, which is a smaller group, was through enrollment, and

            23  that was something that was mandated by the Federal Government,

            24  a process that was later managed by tribes, and that continues

            25  to be managed by tribes today.

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             1             Those definitions of who an Indian is, per tribe, is

             2   somewhat different from one tribal group to the other, but it

             3   establishes rights, in some cases, it establishes who your

             4   membership is, your blood quantum level, and it maintains,

             5   because there is a trust relationship between the Federal

             6   government and tribes, it maintains that trust relationship.

             7   Q    There is clearly, just from what you have said already

             8  and from what I think most of us would bring to this

             9  examination, even though we are probably much more ignorant

            10  than we should be, clearly a tremendous diversity among Native

            11  Americans, but if you could just briefly give us a history of

            12  Native Americans in the United States as a kind of initial

            13  introductory context to the rest of your testimony.

            14   A    Let me share a little bit about my own background and a

            15  little more family history, if I can, to make it a little bit

            16  more personal.

            17             My mother is an enrolled member of the Lacourie

            18   Chippewa tribe.  My father, who has now passed on, is a member

            19   of the Bad River Reservation in Odayna, Wisconsin.  They met

            20   in Flanders, South Dakota.

            21             At that time, for their generation, and for part of

            22   also my generation, children were forced to go to boarding

            23   school, often thousands of miles away from their homes.  So

            24   they went to school in South Dakota, where they met.

            25             At boarding school they were not allowed to speak

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             1   the tribal language.  Any kind of expression of tribal culture

             2   was forbidden and they were punished for it.  My mother -- and

             3   they were vocational training schools in large part.  My

             4   father was trained to be a draftsman and ended up with very

             5   good printing and that is what he was trained for in high

             6   school.  My mother spent four years learning how to make beds.

             7   The view was that women would learn how to do housework and

             8   take care of children, Indian women, so that's what my mother

             9   was trained to do.

            10             They came to Chicago to -- after the war, years

            11   after the Korean War, because there was no work back in the

            12   tribal community, and I was born.  They sent me back to live

            13   on the reservation with my grandparents, but the stigma that

            14   both of my parents grew up with in that sense of not being

            15   allowed to express themselves as Native people is a sense of

            16   shame about many Indians that they carried their whole lives

            17   and that my mother will carry the rest of her life and that I

            18   carry, as well, and that my son will carry, because they grew

            19   up feeling that they were wrong.  No matter what they did,

            20   they were told in school, by those people who were officials

            21   in their community, that there was something wrong with being

            22   Indian.

            23             When I went away to college, I went to Purdue

            24   University for my Bachelor of Arts degree, initially in

            25   veterinary medicine.  My mother's advice to me as I was

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             1   packing and getting ready to go was not to tell anybody I was

             2   an Indian, that people would treat me badly.  Her experience

             3   told her that that was going to happen to me.

             4             And so I went off to school and did tell people I

             5   was an Indian.  I'm not sure I was the only Native person at

             6   Purdue, I'm probably not the only person who has ever gone

             7   through, but very few people, Native people, who have been to

             8   Purdue, and certainly I was the only one I knew of at that

             9   time.  And I graduated and came to work within the Native

            10   American community in Chicago in the mid '60's.

            11             That period of time, beginning in 1955 until 1970,

            12   there was a program by the Federal Government called -- there

            13   were two programs that really were two prongs of the same

            14   goal.

            15             One was termination of tribes, the Federal

            16   relationship between tribes, which maintained that trust

            17   status and really provided that kind of protection for tribes

            18   to maintain their resource base.  That was one piece of it.

            19             The other piece was called relocation, where

            20   thousands and thousands of Indians from across the country

            21   were brought into seven major metropolitan areas in the

            22   country, the notion being that they would -- that they would

            23   receive vocational training or they would get a job, but they

            24   would disappear in society.

            25             The person who was responsible for this program,

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             1   both for termination and relocation, was the same person who

             2   was responsible for the Japanese detention camps, a man named

             3   Dillon Meyer, so in many ways, there were some similar kinds

             4   of philosophy around the program, but the notion being that we

             5   would disappear.

             6             So my first job in Chicago after graduating from

             7   Purdue in 1966 was as a case worker in large part to Indian

             8   people who had been brought on relocation.  After six months

             9   -- there used to be a BIA office in Chicago, and the Indian

            10   Bureau said that they would assume six months of

            11   responsibility over those people that they brought in from

            12   tribes, from places all over, little tiny villages and all

            13   kinds of rural areas around this country and Alaska into a

            14   city like Chicago that is inhospitable to people who are

            15   different.

            16             And the Indian Bureau put people up, three, four

            17   families in one apartment and would charge the Government

            18   whatever number of times that they could to get as many people

            19   in one small space.

            20             People had never seen elevators before.  They had

            21   never seen escalators.  They didn't know about tall

            22   structures.  They didn't know about the kinds of things that

            23   we all learn living in any area, living in a city where you

            24   know what not to do, you know how to survive and take care of

            25   your family.

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             1             These people didn't know that.  They came from rural

             2   areas and probably fully three-quarters of them ended up going

             3   home very quickly, some of them went home dead, because they

             4   went into areas that were not safe.  The Indian Bureau put

             5   them in apartments that were not safe.

             6             My job as case worker was to help provide some sense

             7   where there was no sense of how these people were going to

             8   make an adjustment in life in Chicago, and so that was my

             9   first job, to be supportive of families, to be supportive of

            10   families who had lost their family members or when something

            11   serious happened.

            12             I did this for several years and it finally occurred

            13   to me that we had to do something that was more sustaining

            14   that would support our Native issues in a way that would help

            15   us understand them better.

            16             There is no question that the only people that --

            17   the only way that most people know about Indians, well, there

            18   are two ways now, used to be only one, but there are two ways

            19   that many people know about Indians today.

            20             One of them is casinos.  There are not many people

            21   who haven't heard of Indian casinos.  There was a survey that

            22   was completed in this state, in Michigan, about a month ago

            23   and it asked a series of people how many people had ever gone

            24   into a tribal community and the answer was 15 percent said

            25   they had been into a tribal community and I was shocked.  That

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             1   was a high percentage, I thought, you know, 15 percent of all

             2   the people I meet have gone into a tribal community?  That's

             3   an impressive figure.

             4             And then when you looked at it further, they said,

             5   why did you go, and most of those people had gone because of

             6   an Indian casino.  So that's one way people in our society

             7   know about Indians.

             8             The other way is through mascots, and neither of

             9   those -- and the mascots are a caricature of Indian people.

            10   So the Redskins or the -- I don't know, the Fighting Sioux,

            11   there is a big case going on in North Dakota right now.  But

            12   the Indians became mascots around the turn of the century on

            13   the assumption that we would be dead, that we would be gone,

            14   and the notion was a people who used Indian symbols and Indian

            15   culture in this way was to preserve what they felt was some

            16   noble aspect of Native American culture.

            17             So the two ways that people learn about us, and one

            18   is adults mostly and one is children, is through mascots and

            19   through Indian casinos.

            20             There is no teaching that goes on.  If you go into a

            21   classroom, it's rare that anybody will talk about Native

            22   issues, despite the fact that the constitution of this country

            23   and government of this country was based on what people came

            24   and found in this country.

            25             Thomas Jefferson said, in looking at the Iroquois

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             1   League of Nations, which established a form of government with

             2   two houses of government, with two systems, two houses of

             3   government, and had created a way of decision making and

             4   voting that involved and had women with equal power with men,

             5   a whole voting system, a representation, a way to get people's

             6   opinion on the floor, Thomas Jefferson said, if these savages

             7   can develop this kind of government, then so should we.

             8             And so they used that, what they found here among

             9   the Iroquois League of Nations, as a basis of this Government.

            10   And yet, children will never read about that in their

            11   classroom.  They will never understand that, including our

            12   Native children, who grow up feeling that there is something

            13   wrong with them, because they have never made a contribution,

            14   evidently, because they are never talked about in the

            15   classroom.

            16             And so one of the ways that Indian people feel that

            17   sense of discrimination is omission.  That it's as if we don't

            18   exist in this society unless we're valuable in running a

            19   casino or we make people feel good at a baseball or a football

            20   or a basketball game because somebody can run out dressed up

            21   as a caricature of an Indian.  So that's one major way.

            22             Another way is distortion, that there is an image,

            23   there are images of Indians that are distorted in the way that

            24   people want to preserve some notion of Indians that has no

            25   basis to reality.

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             1             In many ways, Indians are a treasure in this

             2   country, kind of a legacy in this country, and so people want

             3   to preserve them not in understanding issues as they are, but

             4   keeping them at a distance and keeping that notion of

             5   spirituality, that Indians have great spirituality.  And of

             6   course we do have, you know, tribal traditions related to

             7   spirituality, but what people want to do is to use -- to see,

             8   to see Indians in a flat, like a flat surface, not in the full

             9   dimension of human beings, but to see something that you can

            10   color, that you can put on feathers and the children can do it

            11   at Thanksgiving, but it's that distortion of who -- of who we

            12   are that limits people's thinking about us, so that we're not

            13   seen as whole human beings.

            14             The third way -- and all of these are mean.  All of

            15   these work their way through our children's lives in mean

            16   ways.  I was at a reservation in Montana, visiting with a

            17   Headstart program, and this is a reservation that sits on the

            18   United States/Canada border, and it's a community where the

            19   tribal tradition is very strong, where people speak the tribal

            20   language, and I was talking to the Headstart teachers, and

            21   these are all little Indian kids, and asking them what the

            22   issues were that they dealt with in the classrooms, and they

            23   said they had children who denied they were Indian.  This is

            24   in a Headstart program on a reservation, where all the kids

            25   were Indians, they denied they were Indian.  And it was so

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             1   painful to me to hear that.

             2             And I said, how can they deny it?  And she said,

             3   they see two kinds of visions of Indians in our community.

             4   They see the drunk Indians, and that's what people talk about,

             5   Indians who can't control alcohol and they see it, and then

             6   they see the Indians who go to pow-wows, who dress up with

             7   feathers and so on and they can't afford that, probably, it's

             8   not cheap to be able to participate in ceremonies in that way,

             9   and they are neither of those things.  Those are two

            10   stereotypes, and they are neither one, so that they are

            11   saying, I'm not an Indian, but they don't know who they are.

            12             The third way that discrimination works its way

            13   through our Native communities is a perception that there is

            14   inequality going on, that Indians are undeserving and have

            15   things that other people don't have.  They have treaties, have

            16   treaty rights, are able to fish, able to hunt out of season,

            17   they are able to have casinos, do this and do that, and other

            18   people don't have that right.

            19             Well, our tribes, when they signed treaties, didn't

            20   -- gave up lands in this country, so what tribes had was over

            21   100 million acres that was lost in that whole treaty-making

            22   period, and they did not give up rights, but they gave up that

            23   land in order to maintain their sovereignty that they had when

            24   Europeans came to this country.

            25             So part of that was hunting and fishing in usual

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             1   areas, part of it was maintaining rights to intellectual

             2   property, the ability to practice religions as they have

             3   historically, a whole series of rights that they maintained as

             4   sovereign people.

             5             Many, almost all of them, have had to be reinforced

             6   with additional laws, because people have challenged those

             7   rights and responsibilities, and it includes the State of

             8   Michigan where fishing rights have been challenged over time

             9   and the rights of tribes to fish and to hunt in usual -- in

            10   areas where they have done historically.

            11             One of the ways, one of the tools that have been

            12   used in order to organize against Indians, there is a national

            13   movement with chapters from Montana to New Mexico to

            14   California, Wisconsin, Michigan, states all over the country

            15   taking on different names.  In Wisconsin it's PARR, Protect

            16   American Rights and Resources.  It's a group that almost

            17   doesn't exist anymore, but these groups have organized across

            18   the country to fight treaty rights and what they have told

            19   people is that Indians have these rights that they don't

            20   deserve, that they don't -- that they are taking away from

            21   other people.

            22             So those are three serious ways that impact, and

            23   they are racism, but they are three ways that limit our

            24   ability to exist in this society in a way that other people

            25   do.  It impacts on every phase of our life.

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             1             Indian men will make one half the income that white

             2   men with comparable education make.  Women at the same --

             3   Native women at the same level with women of other races will

             4   make half the income.  Most Native people in this country are

             5   poor, live at the poverty level.  We have -- in some

             6   communities the unemployment rate in the winter time is 70 to

             7   80 percent, despite the vast -- the quick changes that are

             8   going on in some economies and some of our tribal communities,

             9   both because of gaming and other types of tribal enterprises.

            10   Most of our people are still very poor, and so education and

            11   the access to it is critically important to change and to make

            12   sure the quality of life that all of us ought to have in

            13   society is maintained for Native people.

            14   Q    And what are the implications -- you went right where I

            15  was going to ask you to go -- what are the implications of the

            16  different forms of stereotyping and stigma and inequality and

            17  racism as far as Native Americans are concerned for higher

            18  education?

            19   A    Well, I was going to say, it's high suicides rates, for

            20  one, and that certainly impacts on education.

            21             But there is -- part of it is that the ignorance

            22   about Native people, the ignorance about our cultures make it

            23   very difficult, and institutions do not necessarily have the

            24   flexibility to deal with people who are somewhat different.

            25             And the notion that Indian people have been taught

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             1   over time that they are less valued in this society means that

             2   while our people are as bright as anybody else and have the

             3   capability to achieve in higher education, to go into

             4   professions, and thousands have done that, in fact, the number

             5   who still -- who our communities need in order to build that

             6   community quality of life is nowhere near where it should be.

             7             And so we have -- one of the things that's

             8   interesting that's happened, and this is now the last almost

             9   decade, is that while Indian people still are, you know, there

            10   are still people feeling insecure about being Indian or who

            11   have been taught that they need to be ashamed of it, the rest

            12   of society sees Indians as a kind of safe minority to be a

            13   part of, and so we have a lot of people who have identified

            14   themselves as Native people who may or may not be Indian.

            15             We have seen it at local levels where there have

            16   been, for example, in magnet schools where families have

            17   identified as Native American identification, whether they are

            18   or not.  It's happened in schools and higher education.  But

            19   the biggest impact is the small number of people who are

            20   pursuing education because they feel that they are -- they

            21   don't have access or that those institutions are not

            22   responsive to them.

            23   Q    What's the importance of building up a larger cadre of

            24  Native American professionals?

            25   A    Well, the kind of -- the kind of situation that we talked

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             1  about this afternoon for native people is not going to change

             2  until we can change the quality of professional people who are

             3  working within our tribes and communities.  Most Native tribes

             4  in this country have lived -- for example, if we take the law,

             5  which is what we're talking about here, most tribes in this

             6  country pay millions of dollars in litigation fees and any

             7  Native person you will talk to, the history of their lives and

             8  their parents' lives and their grandparents' lives is a history

             9  of litigation, of trying to protect their rights, of trying to

            10  work and develop resources within their tribal communities, and

            11  so that they have relied on attorneys, and 95 percent of the

            12  time it's been attorneys from outside their communities,

            13  because very few attorneys will learn anything about Indian

            14  law, except a course or two here or there, which is certainly

            15  not sufficient.

            16             It means that they are hiring people who, one, don't

            17   know about the tribal community, don't know about Indian

            18   culture, for one, and two, don't have a background in Indian

            19   law, so really it's almost like on-the-job training, where

            20   they are learning how, what those laws are, while they are

            21   representing tribes.  That's a particularly strong area as we

            22   look at the areas.

            23             Things like economic development, protecting

            24   environmental resources, 30 to 40 percent of natural resources

            25   exist within tribal lands in this country, and so protecting

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             1   them is an important responsibility that our tribes have that

             2   now require litigation.  Most tribes do not have access to

             3   people who either have any training in Native American law,

             4   who understand Indian culture well enough to be able to

             5   function effectively in that community or to Native people in

             6   general.

             7   Q    And what are the current prospects, what's life like in

             8  higher education for Native American students?

             9   A    Well, the numbers are -- clearly, the number have

            10  increased over time.  I was the first -- the first generation

            11  of Native people educated formally in higher education, and

            12  that was in the '60's, and there were probably, I don't know,

            13  700, 800 Indian people in higher education at that time.  Today

            14  there are thousands across the country who are enrolled in

            15  higher education, so the picture is certainly much better than

            16  it was, but if you look within our communities, very few

            17  communities have people with the kinds of tribal -- tribal

            18  members who have the credentials that they really need in order

            19  to carry out their work more effectively.

            20             And so we have to look at how to increase those

            21   numbers and to work with those institutions.  There are 32

            22   tribal colleges in this country, as well as NAES, which is a

            23   private college, that were developed because conventional

            24   institutions were not interested in serving Native populations

            25   and were not prepared to do so, and created this other system,

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             1   but that was at the Associates and the Baccalaureate level.

             2             At the professional level, we need to work with

             3   schools to make sure that they are addressing the needs of our

             4   Native American communities and students as they look at

             5   admissions.

             6   Q    And for those Native American students who end up on

             7  largely white, partially integrated campuses, what particular

             8  pressures and difficulties do they face?

             9   A    Well, the University of Wisconsin -- we see a lot of

            10  numbers coming out about retention rates.  The University of

            11  Wisconsin was one that I read last year, and they said for

            12  every four students who enter as freshmen, one student will

            13  make it through the first year, so that we know the dropout

            14  rate is very, very high.  And it's not because the capability

            15  to learn, to study, to achieve in higher education is not

            16  there, it's not because higher education, formal education is

            17  not respected, but students are not able to survive in those

            18  institutions because the supports are not there.  If they are

            19  one or two or three students, if they work, if they have to

            20  live within systems that don't recognize them or value them,

            21  then it's easier to drop out, often.

            22   Q    And for those students who end up managing to make it

            23  through, are they likely to end up with the GPA and with a

            24  standardized test score that reflects none of the difficulty

            25  they faced?

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             1   A    It's a mixed situation.  Many of the people will graduate

             2  with GPA's that are high, many of them not.  So I'm not -- I

             3  don't know that there is one -- I'm not sure how to answer that

             4  question.

             5   Q    Do the problems that you have identified in the largely

             6  white institutions have implications for the academic

             7  performance of Native American students on the campuses?

             8   A    I think it limits the use of their resources.  For

             9  example, we have -- NAES graduates people at the BA level.

            10  About 30 percent of them have gone on to Masters or

            11  professional school, including three who have gone to law

            12  school, two have passed the Bar.  Several have gone on to

            13  Masters programs, public health and so on, and have done fairly

            14  well, but it's a real tenacity to survive.

            15             We had one young -- one man who was the descendant

            16   of a traditional chief of his tribe, so people in his family

            17   came with great prestige and with honor and he carried himself

            18   very well and carried that responsibility well.  When he

            19   graduated with a Bachelor of Arts degree in community

            20   education from NAES, and went on to the University of

            21   Minnesota to an environmental program, and Minnesota has a

            22   fairly high number of Indian students, but it also has a very

            23   high dropout rate, he went to the financial aid office and

            24   received a financial aid package, which included loans and so

            25   on and so forth and they told him he had to wait for two or

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             1   three weeks before he got any money.

             2             Because of who he was, in our communities, you don't

             3   question, you know.  It's a different style of operation, so

             4   that you may not question people in authority.  He didn't

             5   raise questions about why he wasn't getting his financial aid

             6   for three weeks and ended up living under a viaduct by the

             7   river for that three-week period.  This is a man who is a

             8   descendant of a chief, someone who is greatly honored in his

             9   community, and someone who that institution did not recognize

            10   had a special need.

            11             So many of our Indian students fall in that category

            12   of disappearing in the larger student body, because their

            13   needs are not recognized and they aren't always able to

            14   articulate them in a way that allows them to get addressed.

            15   Q    What has been done to address the problems that you have

            16  identified?

            17   A    Well, one of them has certainly been the development of

            18  our own institutions, and the survival of those institutions

            19  has always been tenuous, but it's the 32 tribal colleges, in

            20  addition to NAES College, and both because it's developing

            21  systems of learning that are based on tribal knowledge, and

            22  knowledge that comes out of our own communities, it's a way to

            23  address how we begin to develop that core of faculty people who

            24  can teach in our communities.

            25             And third, it's a way to really develop that base of

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             1   knowledge that's critical for our people to be able to

             2   maintain that linkage at home and to work in effective ways.

             3             There are professional associations like the Native

             4   American Rights Fund, the American Indian College Fund, the

             5   American Indian Higher Education Consortium, that have been

             6   developed in order to begin to share problems and to figure

             7   out how it is that they can be addressed and to look for

             8   support for them.

             9             There is an Association of Native American Faculty

            10   from conventional institutions across the country who now meet

            11   as a result of support from the Kellogg Foundation to share

            12   problems that they are having in their various institutions

            13   and to look at ways to address them individually.  It's a new

            14   association.  This is an area in which we're still relatively

            15   new in terms of numbers coming into higher education.

            16   Q    And NAES was very much part of that movement to establish

            17  schools for Native Americans?

            18   A    Yeah, we saw people dropping out at such high rates and

            19  the people who did graduate from conventional institutions were

            20  dysfunctional when they came home to their communities, whether

            21  they came from Harvard or Yale or University of California,

            22  coming home often was a transition that they were not able to

            23  make, that they had learned values often that were not

            24  important back in the tribal community or a base of knowledge

            25  that was not particularly functional, and so we looked at that

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             1  need, at that particular need, and developed an institution

             2  that operated taking its cues from our own communities, from

             3  our tribes, from our culture, from our language, from our

             4  history, from our economic systems, from our intellectual

             5  traditions, and developed an institution that incorporated all

             6  of those.

             7   Q    What role has affirmative -- have affirmative action

             8  policies played in helping to offset the problems you have

             9  identified?

            10   A    It's certainly been an important part of bringing more

            11  Indian people into conventional institutions.  All of the

            12  treaties that tribes signed with the Federal Government had

            13  provisions of education, that it was an important aspect

            14  developed by tribal leaders that their people receive a formal

            15  education and so most treaties made provisions for that in some

            16  way, but as we know, those treaties were not honored and that

            17  obligation to provide the kind of formal education that our

            18  Indian people needed has not happened, either.

            19             But the change, in large part, did come with

            20   affirmative action, and the increase -- so you see, this is

            21   when I went to school, say this is 1966 or '65 when I was in

            22   school, when this is -- the number of Indian people is very

            23   small, the number has gone like that (indicating), in large

            24   part because there is a recognition that there is --

            25   affirmative action provides some recognition, there are Native

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             1   people there and they are part of the fabric of our life, and

             2   that there is a responsibility to make sure that they are a

             3   part of student life.

             4             Those institutions that have adopted mascots, for

             5   example, have provided and have made it very difficult on

             6   Native people to survive and to graduate.  Those Indian

             7   people, as they have raised those questions, have really been

             8   -- have been forming coalitions with other student groups that

             9   in many ways have allowed them to have a better experience and

            10   more a sense of community on their campuses.

            11   Q    So forming coalitions to fight the racist stereotypes

            12  about Native Americans?

            13   A    Right.  That's right.  That's right.

            14   Q    President Smith, in your opinion, how much should the

            15  race of a Native American student be taken into account in law

            16  school admissions?

            17   A    I think it's a piece of -- it's got to be recognized as a

            18  part of a number of issues that need to be addressed.  It's an

            19  important piece for our communities to have access to change

            20  the way it looks right now, so that we're not continually going

            21  outside to find legal representation outside of our communities

            22  from people who have very limited experience or training with

            23  Native American law, and so we need to -- we need to encourage

            24  schools to use that as a part of their decision-making process.

            25             MS. MASSIE:  That's all I have.  Thank you very

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             1   much.

             2             THE WITNESS:  Thank you.

             3             THE COURT:  Mr. Payton?

             4             MR. PAYTON:  No.

             5             THE COURT:  Plaintiff have anything?

             6             MR. RICHTER:  We don't have any questions, Your

             7   Honor.

             8             THE COURT:  Do you have another witness today?

             9             MS. MASSIE:  I apologize.  I would like to move in

            10   President Smith's expert report, which is Exhibit 171.

            11             THE COURT:  No objection, I suspect?

            12             MR. RICHTER:  No.

            13             THE COURT:  Received.

            14             MS. MASSIE:  And we do not.

            15             THE COURT:  You don't have another one?

            16             MS. MASSIE:  I do have a housekeeping matter.

            17             THE COURT:  171?   I'm sorry.

            18             MS. MASSIE:  Yes.

            19             MR. PURDY:  And just for the record, apparently

            20   Exhibit 229 should be the number on the radio transcript, so

            21   thank you.

            22             THE COURT:  229?

            23             MR. PURDY:  Yes, sir.

            24             THE COURT:  Appreciate it.  Okay.  Housekeeping?

            25             MS. MASSIE:  This is on the exhibits that were

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             1   entered after Jay Rosner testified, which didn't show up.  We

             2   have been preparing a list of the exhibits that have been

             3   entered during the course of the trial, and because I didn't

             4   say the numbers, but only referred to them as in the generic,

             5   the numbers did not go in.  You admitted them over Counsel's

             6   objection.  Those numbers were 202 through 210.  The

             7   reference, if anybody wants it, it's page 112 of volume nine,

             8   which was February 7th.

             9             THE COURT:  Hold on one half second.

            10             MS. MASSIE:  Sure.

            11             THE COURT:  Give it to me one more time.

            12             MS. MASSIE:  202 up through 210.

            13             THE COURT:  Okay, good.  Anything else?

            14             MS. MASSIE:  No.

            15             THE COURT:  Let's just review what we're doing, so

            16   everybody has an understanding.  We're not going tomorrow, not

            17   going Wednesday.  We're starting at 9:00 Thursday, going until

            18   5:00 Thursday.

            19             MS. MASSIE:  Correct.

            20             THE COURT:  And then we're through with all the

            21   testimony, and Friday morning we will start at 9:00 and we

            22   will do closing arguments, 45 minutes each side, each party,

            23   whatever, Plaintiff, Intervenor and Defense, 45 minutes or

            24   less, as I said, and then we will have ten days to submit

            25   post-trial, as we talked about, and then we will go from

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             1   there.

             2  Is that everybody's understanding?  Okay.

             3             MR. PURDY:  Your Honor, we do have -- just so it's

             4   clear, I think all of the parties had some submissions, some

             5   designations which also included some exhibits, and I just

             6   want to make sure that we don't overlook offering those for

             7   the record.  I don't believe there is any objection.  We have

             8   exchanged these before the trial began, but for example, I

             9   could just give the Court -- we have Dean Ed Cooper, Professor

            10   Cooper's testimony designations with some exhibits, and there

            11   are some others, and I just want to make sure as a

            12   housekeeping matter we don't let the record --

            13             THE COURT:  Those are contained in the exhibit books

            14   that you have given us?

            15             MR. PURDY:  The exhibits will be in there, but the

            16   testimony, we haven't yet offered them.

            17             THE COURT:  Why don't I suggest tomorrow and

            18   Thursday and Wednesday that you sit down and go over all of

            19   those and give me a list and we will have them and all the

            20   backup material that we have so we can have it and those that

            21   you have agreed to.

            22             MR. PAYTON:  I think we should do that.  Let me --

            23   I'm not sure it's going to be quite that easy.  Some of those

            24   exhibits, I think, the Court realized in the first week we

            25   objected to.  We didn't question their authenticity, they are

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             1   what they purport to be, but we think a lot of them are simply

             2   irrelevant to any of the issues in this case; that is, they

             3   are way out of time or they are about just, you know, matters

             4   that have nothing to do with this.

             5  Some were proposed to be admitted as exhibits in the first week

             6   and some were accepted, some were actually rejected.  So we

             7   may end up with a list of things where we agree they can come

             8   in and then there may be some disputes that the Court will

             9   have to resolve.

            10             THE COURT:  That's fine.  I'll tell you right now,

            11   if we already rejected them, forget them, since I'm not going

            12   to allow them in.

            13             MR. PURDY:  I understand that.  But this may include

            14   some other ones where we're not going to question the

            15   authenticity, but we may say this is simply irrelevant.

            16             THE COURT:  Let's do this.  Let's be prepared to

            17   give me a complete package of those that you all agree on.

            18   Those that you disagree on, then I'll rule right there.  Just

            19   give me a copy of it and I can take a look at it and see how

            20   it relates and we will argue it, but do it in the spirit, I

            21   heard you say one word, which I think is very relevant, and

            22   that is, dated or something of that nature.  If they are

            23   those, I'll tell you, let's not fool around with this.  I'm

            24   not looking at you, I'm looking at everybody.

            25             MR. PAYTON:  No, I understand.  I guess I would

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             1   propose, if it makes sense, if we have time Thursday

             2   afternoon, I would like to do this before the Friday closings

             3   instead of starting the day off with disputes.

             4             THE COURT:  That's fine.

             5             MR. PAYTON:  So if we could resolve this somehow on

             6   Thursday, that would be --

             7             THE COURT:  I would like to do it Thursday.  Plan on

             8   resolving everything Thursday.  Do you want to start a little

             9   bit early Thursday morning?

            10             MR. PAYTON:  Sure.

            11             THE COURT:  And get those done, maybe start at 8:00

            12   not with the testimony, but with resolving all of these

            13   issues, and then with the understanding that by 9:00 we will

            14   have all those resolved.

            15             MR. PAYTON:  That's perfect.

            16             THE COURT:  I'll move very quickly on those.  If I

            17   look at them, now that I have heard so much testimony, I can

            18   tell you whether they are up or down very quickly, but if

            19   you'd like, I have no problems with starting at 8:00, 8:30,

            20   whatever time is good for everybody, getting that out of the

            21   way, with the understanding that we will start at 9:00, with

            22   testimony at 9:00.

            23             MR. PAYTON:  8:30?

            24             THE COURT:  That's fine.  If you give me the total

            25   package, I will be prepared to rule on it and if you have the

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             1   package the day before, if you have the package Wednesday --

             2             MR. PAYTON:  We will have it Wednesday.

             3             THE COURT:  If you drop it off here, I get up very

             4   early in the morning, and I will -- or maybe Dave will even

             5   drop it off where I'll be Wednesday and I'll read it the night

             6   before.

             7             MR. PAYTON:  Okay.  That's fine.

             8             THE COURT:  No problem with that?  So on Thursday at

             9   8:30, and get the package over here Wednesday before, say,

            10   4:00 or so, I'll have a chance to have read it and study it.

            11  All done?  Okay, see you then.

            12             COURT CLERK:  All rise.

            13                  (Proceedings adjourned at 5:18 p.m.)

            14                            -- --- --












                                  GRUTTER - BOLLINGER, ET. AL.

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             3                            CERTIFICATE

             4        I, JOAN L.MORGAN, Official Court Reporter for the United

             5  States District Court for the Eastern District of Michigan,

             6  appointed pursuant to the provisions of Title 28, United States

             7  Code, Section 753, do hereby certify that the foregoing

             8  proceedings were had in the within entitled and numbered

             9  cause of the date hereinbefore set forth; and I do further

            10  certify that the foregoing transcript has been prepared by me

            11  or under my direction.


            13                                         ____________________
                                                       JOAN L. MORGAN, CSR
            14                                         Offical Court Reporter

            15                                         Detroit, Michigan  48226


            17  Date:  __________________









                                  GRUTTER - BOLLINGER, ET. AL.

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