In its continuing efforts to keep the public informed about the ongoing admissions litigation, the University of Michigan makes these transcripts of the trial proceedings in Grutter v Bollinger, et al., Civil Action No. 97-75928 (E.D. Mich.), available to the University community and general public. As is often the case with transcription, some words or phrases may be misspelled or simply incorrect. The University makes no representation as to the accuracy of the transcripts.
1 1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN 2 SOUTHERN DIVISION 3 4 BARBARA GRUTTER, For herself and all others 5 Similarly situated, 6 Plaintiff, 7 v. Civil Action No. 97-CV-75928 8 LEE BOLLINGER, JEFFREY LEHMAN, DENNIS SHIELDS, and REGENTS OF 9 THE UNIVERSITY OF MICHIGAN, 10 Defendants. _________________________________________/ 11 12 BENCH TRIAL - VOLUME 13 13 MONDAY, FEBRUARY 12TH, 2001 14 15 BEFORE THE HONORABLE BERNARD FRIEDMAN United States District Judge 16 Theodore Levin United States Courthouse 231 West Lafayette Boulevard, Room 238 17 Detroit, Michigan 18 - - - 19 Appearances: 20 Kirk O. Kolbo, Esq., 21 R. Lawrence Purdy, Esq., 22 On behalf of the Plaintiff, 23 John Payton, Esq., 24 Craig Goldblatt, Esq., Stuart Delery, Esq., 25 On behalf of the Defendants Bollinger, et al, 2 1 - - - 2 APPEARANCES (Continued): 3 4 George B. Washington, Esq. Miranda K. S. Massie, Esq. 5 On behalf of Intervening Defendants. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Joan L. Morgan, Official Court Reporter 21 Proceedings recorded by mechanical stenography. Transcript produced by computer-aided transcription. 22 23 24 25 3 1 2 I N D E X 3 WITNESS: PAGE: 4 STEPHEN RAUDENBUSH 5 Direct Examination by Mr. Delery 6 Cross-Examination by Mr. Kolbo 24 6 FRANK WU 7 Direct Examination by Ms. Massie 36 8 Cross-Examination by Mr. Payton 88 Cross-Examination by Mr. Purdy 99 9 FAITH SMITH 10 Direct Examination by Ms. Massie 153 11 12 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 17 18 19 20 21 22 23 24 25 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 4 1 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. GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 5 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 6 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 examined 24 and testified upon his oath as follows: 25 DIRECT EXAMINATION GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 7 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 8 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 9 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 10 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 -- GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 11 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. GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 12 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. GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 13 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 14 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 15 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 16 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 17 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 18 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. GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 19 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 20 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. GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 21 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 22 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 23 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. GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 24 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 25 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 26 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 27 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 28 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 29 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 30 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 31 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? GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 32 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 -- GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 33 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? GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 34 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 35 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. GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 36 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 examined 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 37 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. GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 38 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 39 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 40 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. GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 41 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 42 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 43 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 44 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 45 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 46 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 47 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 48 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 49 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. GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 50 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. GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 51 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, GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 52 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, GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 53 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 54 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 55 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. GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 56 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. GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 57 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 58 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 59 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 60 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 61 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 62 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 63 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 64 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 65 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, GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 66 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. GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 67 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 68 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.) 6 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 69 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 70 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. GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 71 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? GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 72 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 73 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 74 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, GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 75 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 76 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 77 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 78 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 79 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 80 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 81 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, GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 82 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 83 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 84 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 85 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. GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 86 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 87 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. GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 88 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 89 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 90 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 91 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 92 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? GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 93 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 94 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 95 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 96 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 97 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 98 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 99 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 100 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? GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 101 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 102 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. GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 103 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. GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 104 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 105 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. GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 106 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 107 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 108 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 109 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. GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 110 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 111 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 112 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. GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 113 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 114 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 115 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. GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 116 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. GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 117 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. GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 118 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? GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 119 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. GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 120 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 121 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 122 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? GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 123 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: GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 124 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. GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 125 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 126 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 127 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. GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 128 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 129 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 130 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 131 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 132 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. GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 133 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 134 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. GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 135 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 136 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 137 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 138 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 139 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 140 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, GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 141 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. GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 142 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. GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 143 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 144 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 145 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 146 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). GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 147 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. GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 148 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. GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 149 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 150 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 151 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. GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 152 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? GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 153 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. GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 154 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 155 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, GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 156 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 157 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. GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 158 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 159 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 160 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, GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 161 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. GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 162 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 163 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 164 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. GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 165 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 166 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 167 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. GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 168 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 169 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 170 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 171 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, GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 172 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? GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 173 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 174 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 175 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 176 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 177 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 178 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 179 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 180 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 181 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 182 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 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 183 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 -- --- -- 15 16 17 18 19 20 21 22 23 24 25 GRUTTER - BOLLINGER, ET. AL. BENCH TRIAL -v- VOLUME 13 MONDAY, FEBRUARY 12TH, 2001 184 1 2 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. 12 13 ____________________ JOAN L. MORGAN, CSR 14 Offical Court Reporter 15 Detroit, Michigan 48226 16 17 Date: __________________ 18 19 20 21 22 23 24 25 GRUTTER - BOLLINGER, ET. AL.