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.
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
BARBARA GRUTTER, for herself
and all others similarly
situated,
Case Number:
Plaintiff, No. 97-CV-75928
-vs-
LEE BOLLINGER, JEFFREY LEHMAN,
DENNIS SHIELDS, and REGENTS OF
THE UNIVERSITY OF MICHIGAN,
Defendants,
and
KIMBERLY JAMES, ET al.,
Intervening Defendants.
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _/ VOLUME 6
BENCH TRIAL
BEFORE THE HONORABLE BERNARD A. FRIEDMAN
United States District Judge
238 U.S. Courthouse & Federal Building
231 Lafayette Boulevard West
Detroit, Michigan
TUESDAY, JANUARY 23, 2001
APPEARANCES:
FOR PLAINTIFF: Kirk O. Kolbo, Esq.
R. Lawrence Purdy, Esq.
GRUTTER -vs- BOLLINGER, ET AL
2
1
2
APPEARANCES: (CONTINUING)
3
4 FOR DEFENDANTS: John Payton, Esq.
Craig Goldblatt, Esq.
5 On behalf of Defendants
Bollinger, et al.
6
7 George B. Washington, Esq.
Miranda K. S. Massie, Esq.
8 On behalf of Intervening
Defendants.
9
10 COURT REPORTER: Joan L. Morgan, CSR
Official Court Reporter
11
12
13
14 Proceedings recorded by mechanical stenography.
Transcript produced by computer-assisted
15 transcription.
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19
20
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25
GRUTTER -vs- BOLLINGER, ET AL
3
1 I N D E X
2
3 WITNESSES: PAGE:
4
5 WITNESSES PRESENTED ON BEHALF OF INTERVENOR
6
7 ERICA DOWDELL
8 Direct Examination by Ms. Masley 7
9 Cross-Examination by Mr. Payton 76
10
11 GARY ORFIELD
12 Direct Examination by Ms. Massie 81
13 Cross-Examination by Mr. Payton 180
14 Cross-Examination by Mr. Purdy 184
15
16
17 E_X_H_I_B_I_T_S
_ _ _ _ _ _ _ _
18
19 MARKED RECEIVED
20
21 Exhibit Number 195-200 170
22 Exhibit Number 118 173
23 Exhibit Number 167 173
24 Exhibit Number 131-133 173
25 Exhibit Number 18 212
GRUTTER -vs- BOLLINGER, ET AL
4
1 Detroit, Michigan
2 Tuesday, January 23, 2001
3 9:00 a.m.
4 _ _ _
5 (Court in session.)
6 THE COURT: I have one other just
7 quick preliminary matter. I got a letter yesterday
8 from a, I think it must be a Professor William
9 Kidder. He said at one time he was going to be part
10 of the Intervenor's case.
11 I have not read it, he has sent me
12 all of literature, I'm going to share it with
13 everybody on both sides. You can pass it around and
14 do whatever you want.
15 He's got a couple of Law Review
16 articles in here. And I don't know why he sent this
17 to me, but whatever it is Steven, maybe you can give
18 it to whoever wants it. I have no desire to do
19 anymore reading than I absolutely have to.
20 He's got the gallant proof of his
21 latest edition of some article that he's writing.
22 MS. MASSIE: Judge, you and Steven
23 also have copies of proposed exhibits, they will go
24 with Professor Orfield's testimony.
25 THE COURT: Are they in the book?
GRUTTER -vs- BOLLINGER, ET AL
5
1 MS. MASSIE: No, they're all based on
2 stuff that is already in the book.
3 THE COURT: Okay. Any other
4 preliminary matters before we start?
5 MR. PURDY: Judge, may it please the
6 court, just so that we don't have to interrupt the
7 proceeding this morning, let me simply renew our
8 motion earlier concerning the relevance of Professor
9 Orfield's proposed testimony.
10 I believe it's clear that he
11 professes no knowledge of the University of
12 Michigan's admission policy, he won't be testifying
13 about that as I understand it.
14 And I believe that his report dealt
15 mainly with the educational benefits of diversity
16 and exclusively with that.
17 He doesn't things to say about--in
18 fact, I can see the new exhibits that they have
19 proposed, deal with desegregation in major American
20 cities, things of this nature.
21 While we certainly agree that
22 Professor Orfield is an expert in those areas, we
23 believe there is no relevance to any of the issues
24 before this court.
25 And I just simply want to renew that
GRUTTER -vs- BOLLINGER, ET AL
6
1 so the court understands our position, and I don't
2 want to be interrupting to the extent the Court
3 wants to hear some of his testimony.
4 THE COURT: Okay. Let the record
5 reflect that you will have a continuing objection.
6 And as I indicated before and we will again
7 indicate, I have a lot of questions in my own mind
8 whether or not any of this testimony is relevant.
9 But I have indicated to the
10 Intervenors that I would give them some latitude,
11 and I mean some. And it will be as liberal as I can
12 in relations to latitude.
13 But should it get too far away from
14 the issues that concern this particular trial, I
15 would certainly urge both the Plaintiff as well as
16 the Defendants to place your objection on the
17 record.
18 I will probably be in a position that
19 I have to do it, or may have to do it also. But if
20 you feel that it's too far off, by all means both
21 sides feel free to object. Okay, your first
22 witness.
23 MS. MASSIE: I think you'll find that
24 it's not far off at all.
25 THE COURT: I have no idea, all I
GRUTTER -vs- BOLLINGER, ET AL
7
1 have is what you have submitted.
2 MS. MASSIE: Okay. Our first witness
3 is going to be Erika Dowdell and she will be
4 examined by Jodie Masley, who is also herself an
5 Intervenor.
6 THE COURT: Okay. I was anticipating
7 Professor Orfield, that's okay. You may step
8 forward.
9 ERIKA DOWDELL,
10 was thereupon called as a witness herein and, after
11 having been first duly sworn to tell the truth, the
12 whole truth and nothing but the truth, was examined
13 and testified as follows:
14 DIRECT EXAMINATION
15 BY MS. MASLEY:
16 Q. Ms. Dowdell, could you state your name and address
17 for the record, please?
18 A. Erika Dowdell, I live at 12814 Foley.
19 Q. Do you and I know each other?
20 A. Yes.
21 Q. How did we come to meet?
22 A. You were also an Intervenor in a case and that's how
23 I originally met you. And we are friends.
24 Q. May I have your permission to call you Erika?
25 A. Yes.
GRUTTER -vs- BOLLINGER, ET AL
8
1 Q. Have you lived your whole life in Detroit?
2 A. Yes.
3 Q. Can you describe for us your house?
4 A. I live on the west side of Detroit, my house is pink
5 and it is very distinguishable. I live on a block
6 where there are only two houses standing, because
7 the rest of the houses were abandoned and later on
8 torn down.
9 So, I live next to a very big large
10 field, it looks like a farm area if you weren't
11 familiar with the neighborhood.
12 Q. Is it, in fact, a farm area?
13 A. No, it's not.
14 Q. Can you describe the paint on the house apart from
15 it being pink?
16 A. Yes, the paint is peeling off, it's very old. It's
17 been a very long time since the house has been
18 painted.
19 Q. How large is the house?
20 A. Three bedroom house, one bath.
21 Q. How many siblings do you have, Erika?
22 A. I have four siblings, I'm the youngest of the four.
23 I have two older brothers and one older sister.
24 Q. What does your mother do?
25 A. My mother is a registered nurse at St. Jude
GRUTTER -vs- BOLLINGER, ET AL
9
1 Convalescence Center. She looks after the elderly
2 there.
3 Q. How many years has she been doing that?
4 A. She's been a nurse assistant for almost fourteen
5 years. She started working when I was six years
6 old, I was in first grade.
7 Q. What does your father do?
8 A. I have no knowledge of that.
9 Q. Has your mother basically supported the four kids
10 alone?
11 A. Yes. My parents were separated as long as I could
12 remember, probably before I was actually born. And
13 I have always only lived in the house with my mother
14 and siblings.
15 Q. Did either of your parents, to your knowledge, go to
16 U of M or its law school?
17 A. Not U of M Ann Arbor, my father did go U of M
18 Dearborn.
19 Q. Has anyone in your neighborhood gone to the U of M
20 Law School?
21 A. No.
22 Q. So you would be pretty remote from a legacy point
23 then?
24 A. Yes.
25 Q. You have heard testimony sitting in the courtroom
GRUTTER -vs- BOLLINGER, ET AL
10
1 about odds ratios for people being accepted into the
2 Michigan University Law School?
3 A. Yes.
4 Q. What do you think the odds ratio, the numbers look
5 like for the chances of the vast majority of people
6 in your neighborhood getting into the University of
7 Michigan Law School?
8 A. Zero.
9 Q. Is it your current intention to go to law school?
10 A. Yes, it is.
11 Q. There has been a question raised in this courtroom
12 about whether or not if affirmative action were
13 eliminated, applications of Black students would
14 drop off, have you heard that testimony?
15 A. Yes.
16 Q. Would you make application to a resegregated law
17 school?
18 A. No, I would not.
19 Q. Why not?
20 A. Segregation, the history of segregation in our
21 country is real and it's true. And I cannot ever
22 see myself going to any institution that doesn't
23 take that into account and acknowledge that you have
24 to take race into account in order to integrate
25 these schools.
GRUTTER -vs- BOLLINGER, ET AL
11
1 And I will not go to a segregated
2 school because I understand the struggle, and I did
3 identify with the struggles to desegregate the
4 institutions in American society. And I won't
5 participate in the resegregation.
6 Q. I'm going to ask you some questions about your life
7 and the experiences that have impacted your grade
8 point average up to this point. I'm going to start
9 with your education prior to high school?
10 A. Yes.
11 Q. Where did you go to elementary school?
12 A. I went to two different elementary schools. The
13 first one was Oakman Elementary School, I went there
14 until--I finished first grade there.
15 I went from second grade to fifth
16 grade at Parker Elementary School. Both of those
17 are right in my neighborhood.
18 Q. Were there white students at your elementary school?
19 A. There were a couple at Oakman, that school was mixed
20 with--it was the neighborhood school, but it was
21 mostly for students who were physically handicapped.
22 But there were no white students at Parker
23 Elementary School.
24 Q. And the white students at Oakman, what did you
25 notice about them?
GRUTTER -vs- BOLLINGER, ET AL
12
1 A. The white students were physically handicapped in
2 wheelchairs and disabled.
3 Q. Where did you go to middle school?
4 A. I went to middle school at Drew. Drew Middle
5 School.
6 Q. Is that a neighborhood school?
7 A. That was my neighborhood middle school.
8 Q. Take us to Drew Middle School for a moment?
9 A. Drew Middle School was built shortly after the
10 Detroit riot, so it was built with very, very view
11 windows. And the classrooms that do have windows
12 are labs or science rooms.
13 And the windows are not built for the
14 sun to come into the building, the windows are on
15 the side. Where the sun would be shining this way
16 and the windows were here on the side.
17 So it was a place where you really
18 didn't see the light of day on a daily basis. Most
19 of the day you were inside of the classrooms and you
20 were not allowed to see what the outside world was
21 doing, it was almost as if you were in a little mini
22 prison there.
23 Q. How did it make you feel to be in a school like
24 that?
25 A. It made me feel constrained, as if when I walked
GRUTTER -vs- BOLLINGER, ET AL
13
1 into that school I was no longer a part of the rest
2 of society. You felt like you were locked in and
3 locked down, and you didn't have freedom pretty
4 much.
5 Q. If a light was turned off in a room, what did it
6 look like?
7 A. It was almost pitch black except for the tiny little
8 window that was on the door, and you could see a
9 little bit of light in the hallway. It would be
10 virtually pitch black, it was kind of hard to see.
11 Q. And from your testimony, most of the classrooms had
12 no windows all the way around, is that correct?
13 A. That is correct. There may be ten classes with
14 windows, and that may be a stretch.
15 Q. Has part of that building been transformed now?
16 A. Yes. Part of it was made into--when they were still
17 doing areas for the district of Detroit, part of the
18 school was sectioned off and made to the Area A
19 office with Detroit Public Schools.
20 And the most recent part that has
21 been sectioned off, has been made into a Department
22 of Public Safety. So now there's a whole Department
23 of Public Safety inside of that middle school where
24 classes used to be.
25 Q. So police are there?
GRUTTER -vs- BOLLINGER, ET AL
14
1 A. So now there are police there.
2 Q. And how old are the students of the school?
3 A. From ten to 13 or 14.
4 Q. Why do you think there are police in that school?
5 A. I think there are assumptions about how the students
6 will behave. I think that people assume that there
7 will be violence, that's why the school was built
8 with no windows in the first place.
9 From there ever being more students
10 that enter that school building for them to say, you
11 know, we assume that you won't be able to handle
12 having a window, so we'll build an entire school
13 without any windows says something about it.
14 And I think there's a lot of
15 assumptions about how students will behave and, you
16 know, whether or not they'll bring weapons into the
17 school at the age of ten.
18 Q. What did that communicate to you about how you were
19 being seen by society?
20 A. Well, you definitely weren't seen as someone who is
21 expected to succeed in that environment. It was
22 almost as if people assumed that you would fail from
23 the very start, and you weren't given the
24 opportunity to overcome that at that stage.
25 Q. You spoke of the school feeling like a prison, did
GRUTTER -vs- BOLLINGER, ET AL
15
1 you think to yourself at that time that you were
2 being treated like a prisoner?
3 A. Yes, I did. And I felt especially for the black
4 male students there, that it was training for those
5 black men to be inside of a prison.
6 The security guards there very rarely
7 bothered the women students. But it would be a
8 struggle and a tussle when they would put their
9 hands on the black men students there.
10 And it was almost as if they were
11 saying, you have to get used to this because this is
12 what your life will be like, you know, for the rest
13 of your life. You might as well be getting ready to
14 know how to act in prison and know how to demean
15 yourself in front of me.
16 Q. How old are these students again?
17 A. When I went there I was ten, and I left there when I
18 was 13.
19 Q. Did Drew have a field?
20 A. Yes, it had like a field, I assume it was supposed
21 to be for baseball or football.
22 Q. Did you ever in your entire time at Drew get to use
23 it?
24 A. No.
25 Q. How did you feel about the education you received?
GRUTTER -vs- BOLLINGER, ET AL
16
1 A. I knew that the education at Drew was not up to par.
2 I knew that there were magnet middle schools that
3 people went to that were much better than Drew
4 Middle School.
5 I know that we didn't have proper
6 supplies there, we didn't have enough books to go
7 around for the students. And I knew that it was
8 somewhat strange that we always had to stay inside.
9 At that age it's just kind of strange
10 for you to have a football field or a baseball field
11 and it was not never ever utilized. And I knew
12 there was something wrong with that education at
13 that school.
14 Q. How did you feel about the academics, what did you
15 study?
16 A. The academic there were not strong either. I don't
17 only remember having the actual supplies for a math
18 class. And I remember being in the music class
19 there, which is the two classes that students were
20 able to actually participate in and learn something
21 from.
22 Q. How many students were in the classes?
23 A. There were about 30 kids in my class.
24 Q. So you liked the music class?
25 A. I did like music class, I started playing clarinet
GRUTTER -vs- BOLLINGER, ET AL
17
1 when I was in third grade in my elementary school.
2 And I was kind of tracked into the music class, the
3 sixth grade music class when I went to Drew Middle
4 School.
5 I never signed a paper or anything
6 like that. They just kind of put you in if you were
7 in music in elementary school.
8 Q. Were there other classes that you liked?
9 A. The only other was math.
10 Q. Why did you like math?
11 A. Because the teacher was--she knew how to respect the
12 students and therefore she was respected back. And
13 she knew how to work with kids, she had a passion
14 for teaching. She knew what our needs were.
15 Even not having enough supplies, she
16 would go out of her way and often times she got in
17 trouble by the principal for asking questions why
18 there were not enough books for the students to go
19 around. And we absolutely adored her. And
20 therefore we were able to focus in that class.
21 Q. Were you not able to focus in other classes?
22 A. I was not able to focus in the homeroom class, which
23 is the class I spent about three to four hours a day
24 in everyday, because there weren't enough books.
25 And it was just really difficult to teach like that.
GRUTTER -vs- BOLLINGER, ET AL
18
1 Q. What would happen in that class?
2 A. Basically students--we just kind of laid back and
3 did what we wanted to do. There was really nothing
4 to do. We come to class and there was never ever an
5 assignment hardly. Like hardly ever unless
6 someone's mother came to see what was going on
7 inside of the school.
8 And then the teacher would try to get
9 a book and turn to this page or whatever. But most
10 of the time we just kind of sat around, talked, you
11 know, made up little things to do and entertained
12 ourselves when we were there.
13 Q. Were there other ways that the students entertained
14 themselves in the absence of their learning?
15 A. There were times where someone would turn out the
16 light and we would entertain ourselves by throwing
17 books at the teacher, she couldn't see. So no one
18 ever really got in trouble for it.
19 And it shows how dark it was in
20 there. And just things like that went on on a daily
21 basis in that class.
22 Q. Would anyone have thrown books at the math teacher?
23 A. No.
24 Q. Were there any white students in your school?
25 A. No.
GRUTTER -vs- BOLLINGER, ET AL
19
1 Q. Were there any Asian Americans in Drew Middle
2 School?
3 A. No.
4 Q. Were there any Latino students?
5 A. No.
6 Q. Were there any Native Americans students?
7 A. No.
8 Q. Was it then one hundred percent black?
9 A. As far as I can remember, I don't remember seeing
10 any other type of face there. It was like all
11 black.
12 Q. Is there anything that happened at Drew that made
13 you start to think very hard about what your future
14 was going to be?
15 A. I remember writing a paper thinking about what my
16 goals were for the future. And it really made me
17 think about what type of high school I wanted to go
18 to. And I knew that if I wanted to get a better
19 education, if I was going to have more
20 opportunities, that I absolutely could not go to my
21 neighborhood high school. And that made me set
22 Cass Tech as my goal for high school.
23 Q. What is Cass Tech?
24 A. It's a magnet school in Detroit, it's one of three
25 or four magnet schools. And Cass Tech is known to
GRUTTER -vs- BOLLINGER, ET AL
20
1 be the best, one of the best.
2 Q. How did you hear about Cass?
3 A. I was in the marching band in middle school and we
4 would always participate in the broadway parade, and
5 I would see the Cass Tech marching band and they
6 beat me, they were the best. And that made me want
7 to be part of that.
8 Also it was known, it was common
9 around to everybody that Cass was one of the best
10 schools to go to. That's how I heard about it
11 basically.
12 Q. Were there ever fights between students at Drew
13 Middle School?
14 A. Yes.
15 Q. Can you tell us about that?
16 A. There were often fights there among students. One
17 fight in particular that really made me decide that
18 I could not go to my neighborhood high school, was
19 one of my really good friends got into a fight with
20 some people and got her head busted open.
21 It was really common for people to
22 just carry a number of locks, combination locks on
23 shoe strings. Put a lock on your shoe string and
24 tie it up and you just kind of carried it.
25 And I carried it for--I carry locks
GRUTTER -vs- BOLLINGER, ET AL
21
1 for protection while walking to and from school and
2 catching the bus. And it was very common, everybody
3 had locks it was no big thing. Everybody knew
4 everybody had locks on shoe strings.
5 And my friend got her head cracked
6 open with like, I don't know how many locks, it had
7 to be over seven. And she had to get her head
8 stapled. And because of that she ended up leaving
9 the middle school.
10 And I knew that if I wanted to just
11 like get away from that environment and stop
12 fighting myself, that I had to not go to my
13 neighborhood high school.
14 Q. Was there anything else that happened that made you
15 determined to try to go to a magnet school?
16 A. Well, I had auditioned for Cass. I had gotten into
17 Cass--let me try to explain this better. There was
18 a test that you had to take to get into Cass, King
19 or Renaissance. It was called the Cass, King or
20 Renaissance test.
21 I took that test, I did not pass that
22 test. And I was able to find another way to get
23 into Cass. And what I did was, there was such a
24 thing as special auditions at Cass.
25 And if you had a special musical
GRUTTER -vs- BOLLINGER, ET AL
22
1 talent or an artistic talent, or you were some type
2 of actress or actor, you could get in.
3 And I found out that my best friend
4 was going, she had scheduled an audition to go there
5 and I wasn't really able to get the information that
6 I needed to schedule the audition.
7 It was kind of like I was doing
8 everything on my own trying to find out what
9 information was available for me.
10 And so I just got my instrument, I
11 grabbed some music and I was like, can I go with you
12 on the day that she had her audition. And she said
13 it was all right.
14 And I went with her down there and I
15 just kind of like begged and pleaded to the music
16 teacher to just hear me play. They really didn't
17 have a space for me, I didn't have a time slot, I
18 had nothing. And I was like, can I just play.
19 And they met me play, and I gave
20 them, I think, a copy of my report card or something
21 like that. And maybe another piece of paperwork and
22 I got in.
23 So, I was already inside of Cass by
24 the summer, but what really put the icing on the
25 case more than just getting into Cass, what really
GRUTTER -vs- BOLLINGER, ET AL
23
1 made me think that I had to delve into my work
2 without any type of lacking, was when I saw my
3 father for the first time in about three years.
4 I always saw him very sporadically
5 over a number of years, and at that time I was 13
6 years old. And he came to the house for one day, he
7 lives in Birmingham, Alabama.
8 So, he came to Detroit for one day
9 and I remember thinking when I was little about all
10 of the perceptions of what your parents look like,
11 and I was kind of excited but not very excited that
12 he was coming, it was kind of a mix of emotions.
13 And when he got there, he looked like
14 the regular neighborhood crack head. And I think
15 that really had a very deep impression on me. And I
16 wasn't really taken a back by being like, this is my
17 father, I can't believe my father is like a drug
18 addict.
19 What I was really thinking, it was
20 almost a very impersonal situation. I was looking
21 at him as almost a stranger, and I was just like,
22 well, whatever his problem is, I don't want to be
23 like that. And made me decided to be as studious as
24 I possibly could when I got to Cass.
25 Q. What kind of student did you become when you got to
GRUTTER -vs- BOLLINGER, ET AL
24
1 Cass?
2 A. Well, most of the time I describe myself, I just
3 turned into a complete dork, that's what I call it.
4 I didn't do anything. I felt like I had to
5 completely remove myself from all of my friends in
6 the neighborhood.
7 None of those kids went to Cass who
8 were my friends before, and only one person in my
9 homeroom class from Drew ended up going to Cass.
10 So, I felt like I had to remove
11 myself from everybody and anything that could
12 possibly get in my way, because I was like, I am
13 going to make it through this school. And all I
14 ever did was like my work, that's all I ever did.
15 Q. To go back to your audition, were you confident that
16 if they could hear you play they would let you in?
17 A. Absolutely. I can't explain the drive. I did sit
18 first chair in the clarinet section at Drew Middle
19 School, but that was almost not the reason that was
20 giving me confidence, not that I was like this
21 absolutely wonderful player.
22 But I felt like if I just had the
23 opportunity to play, that I could like get in there.
24 It wasn't even based, I don't know if it was based
25 on my talent or not.
GRUTTER -vs- BOLLINGER, ET AL
25
1 People who were doing other things,
2 like my best friend was like well, you know, I can't
3 play that well so I start crying if I mess up, and
4 they going to let me in then.
5 And I was just like I'm just going to
6 go and I was just completely confident that I would
7 get in. And I absolutely did. I did great on my
8 audition and I got in.
9 Q. You played your heart out?
10 A. I played my heart out. And I think that's what it
11 was, I was just like I have to get in there.
12 Q. Had anyone in your family gone to Cass?
13 A. No.
14 Q. Did anyone in your homeroom pass the test?
15 A. One person.
16 Q. And she's the person that you were referring to?
17 A. Yes.
18 Q. Did anyone push you in the direction of going to
19 Cass?
20 A. No, it was just something that I decided to do by
21 myself. None of my siblings even had taken the test
22 to get into Cass, and I just decided that I had to
23 go there.
24 Q. Did anyone assist you in anyway?
25 A. No, I went to the audition just by getting that ride
GRUTTER -vs- BOLLINGER, ET AL
26
1 from my best friend. And going up to the music
2 teacher and kind of pleading to be heard that day.
3 Q. How old were you when you made that decision in your
4 life?
5 A. I was 13.
6 Q. So you got in?
7 A. I did get in.
8 Q. Despite having gotten in, were there things that
9 might have come between you and a Cass education?
10 A. Yes. First thing was that my mother is originally
11 from Birmingham, Alabama and so is my father. And
12 she was thinking of moving back to Birmingham that
13 year, because she wanted to live closer to my
14 grandparents so that she could have more help
15 raising my siblings and I.
16 And she was planning on moving back
17 to Birmingham when I got into Cass, I was like,
18 well, we can't go, we have to stay because I'm going
19 to Cass.
20 And she was kind of like hesitated
21 about it, and she was just like, well, you can go to
22 a school down there. And I was like, that's not
23 good enough because I want to go to Cass. I did all
24 of this stuff to get into Cass, I have to go there.
25 And so I even went to the point of
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1 being like, if you ever move back to Birmingham I
2 have to find somebody to live with, because I'm
3 going to Cass. And so she ended up staying based on
4 that.
5 And if you ask her today why she
6 didn't move back to Birmingham, she will say because
7 my youngest daughter wanted to go to Cass.
8 And then there was the other issue,
9 because I had gotten in on special admission I had
10 to go to summer school. And I had to take two
11 classes, each class cost $65. And that was a big
12 economic sacrifice for my family.
13 And my mother didn't think she could
14 pay it at first, and I was like you have to come up
15 with the money. And I almost felt like I was asking
16 to much, I was asking more than my fair share as one
17 of the four children, and asking my mother to
18 stretch it a little bit too much.
19 But she managed to come up with the
20 money. She was worried about both the money for the
21 class and also bus fare that I had to pay.
22 Q. Can you describe how it is that you had to pay bus
23 fare over the four years that you went to Cass?
24 A. Yes. Originally if you were on reduced lunch you
25 could get a free bus pass. By the tenth grade year
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1 they had changed that, and if you got reduced lunch
2 you had to pay for your bus fare.
3 And it was the regular student fare.
4 So there was no type of reduction in that amount of
5 money at all.
6 Q. And you had to take the city bus?
7 A. Yes.
8 Q. Was there any guarantee that there would be a seat
9 available on the city bus?
10 A. No.
11 Q. So you did end up going to Cass?
12 A. Yes.
13 Q. How was Cass different from Drew?
14 A. Cass had way more educational opportunities than
15 Drew did. Also Drew was a very, very working class
16 school, most of the students were poor or working
17 class. Cass had more middle class students that
18 went there. So it was kind of a different
19 environment all around.
20 Q. Was it an improvement?
21 A. Yes.
22 Q. How would you describe Cass High School's racial
23 composition?
24 A. It's over 95 percent black. There may have been,
25 may have been seven whites, I'm stretching it.
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1 Maybe like five to seven white students who
2 graduated in my class out of a class of 522
3 students. And there were a couple of Latino
4 students and a couple of Asian students.
5 Q. So it was still quite segregated?
6 A. Yes.
7 Q. Is Cass High School located right near this
8 building?
9 A. Yes, it's like five blocks down the street.
10 Q. What is the neighborhood like that it's located at?
11 A. Cass is located in the Cass Corridor, that has kind
12 of a meaning in and of itself, Cass corridor. It's
13 an area that's very run down, lots of abandoned
14 buildings.
15 And I almost can't remember a day
16 where I couldn't see people who were homeless around
17 in the area, people who were prostituting in the
18 area.
19 Q. How early did you have to leave your house to make
20 sure that you got to school on time?
21 A. I left on a regular morning between 6:50 and 7:05 in
22 order to make it to school on time, school started
23 around about 8:00.
24 And on Wednesdays when I had
25 sectionals, that is practice for my music class, I
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1 had to leave around 6:30 in the morning because
2 practice started at 7:15 a.m.
3 Q. You had to walk from your house to the bus stop, is
4 that right?
5 A. Yes.
6 Q. Can you describe the route you had to take to the
7 bus stop?
8 A. The bus stop is two blocks away from my house. And
9 there are no houses by my house, so if I wanted to
10 be safe and take the safe route meaning there is
11 like lights, I would go the long way and go like the
12 complete two blocks taking the lighted streets to
13 the bus stop.
14 If I was in a rush, which was often
15 the case, I would go down the street, there was a
16 dead end across the railroad tracks and cross one of
17 the fields to get to the bus stop. Which is the
18 quickest way to go, but there was hardly any lights
19 over there.
20 Q. And did you often walk and stand by yourself in the
21 dark?
22 A. Yes.
23 Q. Were you ever concerned for your safety?
24 A. Yes.
25 Q. Were there particular moments when you were
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1 concerned?
2 A. The main period of time that I got really concerned
3 about my safety is when there was a couple of rapes
4 of girls going to school by themselves in the
5 morning.
6 And during that period I got kind of
7 worried and was trying to be extra careful, but I
8 couldn't be anymore careful than I was already
9 being.
10 Q. Did you ever encounter anyone on your trip to the
11 bus stop?
12 A. No. I mean there would be people who would be not
13 in their right mind, strung out on drugs who just
14 happened to be out. But nobody really bothered me.
15 Q. But apart from in your daily landscape, people
16 strung out on drugs walking, there wouldn't be any
17 other people that you would have been worried about?
18 A. No.
19 Q. Can you describe what Cass the school itself is
20 like?
21 A. Cass is very big, it has I think eight floors. The
22 school is kind of run down to be one of the best
23 schools in Detroit. It is run down, to be one of the
24 best schools in Detroit.
25 They have the very original elevators
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1 that were placed into that school, I don't know that
2 that school was built way before 1950. And they
3 have the original elevator to operate, but it's not
4 accessible to students who are not physically
5 disadvantaged. Kind of run down, falling apart.
6 That's a basic description of it.
7 Q. What would you say about the resources?
8 A. Very scarce. I mean there weren't enough books to
9 go around, I can just give you an example. I took
10 French I my first year at Cass, and we had some
11 books but not enough. We often had to share or
12 leave the books in the classroom.
13 And then when I took French II, the
14 school ordered a new series of books, right? So,
15 the people who were taking French I had brand new
16 French books. But the people who were taking French
17 II had no books.
18 And we kept asking the teacher why we
19 don't have any books, it's really hard studying a
20 language when you can't see, like you can't see the
21 structure of the sentences, you can't put the words
22 together and the teacher is constantly trying to
23 write everything on the chalk board and you had
24 nothing to take home to study afterwards. It was
25 really, it was impossible.
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1 And so we asked them why we didn't
2 have any, you know, a French II book and he was
3 like, well, because they're waiting to order the
4 French II books for next year. So that the people
5 who are taking French I now then they will have
6 their new textbooks for French II.
7 And I was like, well, what are we
8 supposed to do? And he was like, you know, I am
9 just really sorry, you can just take notes off the
10 chalk board and do what you possibly can. But that
11 wasn't sufficient, and he knew that and we knew
12 that.
13 And so basically I wasted a year for
14 nothing. I didn't learn any French that year, I
15 didn't even like French. And so when I got to
16 college I took Spanish instead.
17 Q. Where did you take drivers education?
18 A. At McKenzie High School.
19 Q. Can you describe where at McKenzie High School?
20 A. They have a drivers ed range, kind of like in the
21 back of the school by a parking lot. They have like
22 a whole little range that you can drive around and
23 stuff.
24 But the building in which you met was
25 like this little shack. And you met in there and
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1 was supposed to learn and then go outside and drive
2 on the range. The building was very small and
3 crumbling.
4 I mean it almost looked like an old,
5 very old storage house that nobody uses anymore.
6 And it was often very cold in there.
7 Q. Did it have any insulation?
8 A. Not that I know of. All I know it was really cold
9 in there.
10 Q. In terms of your other experiences at Cass, what did
11 you come to concentrate on while you were there?
12 A. I concentrated on music. My curriculum was
13 avocation music.
14 Q. And what does that entail?
15 A. It's a music program for people who really like
16 music, but don't want to become a musician.
17 Q. So, over the four years, what did you do in that
18 program?
19 A. Well, you were only required to be in one ensemble
20 your first year, and then two ensembles in your
21 junior and senior year.
22 And you had to take like other
23 classes like English and stuff, but you had to take
24 like physics, because physics has some music
25 elements to it.
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1 So, I took advantage of the music
2 program and I just kind of made music my life there.
3 The first year there I went there playing clarinet.
4 And I played clarinet my first year, my second year
5 I picked up piano. My third year I continued to
6 play clarinet and piano and I picked up flute. And
7 then my fourth year I picked up the saxophone.
8 Q. Did you own your own instrument?
9 A. I owned my own clarinet and then I was able to get a
10 flute when I took it my third year.
11 Q. You describe music becoming a big role in your life,
12 taking up a big role in your life, why was that?
13 A. Music become like my social life in kind of a weird
14 way, I already said I was kind of a dork. But
15 instead of going out to the movies or hanging out
16 with friends, I just practiced, that's all I did.
17 And I mean having two to three or
18 four instruments to play, there was a lot of
19 practicing going on.
20 So, I was able to be in the All City
21 Detroit Music Band, and I went there on Saturdays
22 instead of hanging out with friends and played in
23 that band. And that gave me an opportunity to play
24 in different festivals and competitions.
25 Q. Why was it important for you to have music as
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1 something to do instead of, say, hanging out?
2 A. I felt something like I had to have the discipline,
3 and I made music my discipline. I felt like if I
4 would ever go out with my friends or like hanging
5 out, not that they were bad people at all, that's
6 not the case.
7 But I just felt like, you know, I
8 would be risking something and I didn't want to do
9 that. And so I just kind of made music my
10 everything.
11 Q. What was it that you couldn't be?
12 A. I felt like I couldn't be too, I don't want to use
13 the term loose, because I felt like it would somehow
14 interfere with my education. And I had made that my
15 top priority to get through Cass.
16 Q. Would you describe music as being the kind of an
17 escape?
18 A. Yes, it was an escape for me from everything that
19 you could think about from, what the city of Detroit
20 looks like, to all the pressures in life. I just
21 kind of ignored everything and focused on music.
22 That's absolutely what I did.
23 Q. I want to draw your attention to any qualities that
24 exist between Cass and the suburbs. At some point
25 did you conclude that the education you were
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1 receiving at Cass, while better than what was
2 provided at Drew, was not equal to the suburbs?
3 A. Yes, I did.
4 Q. When was that?
5 A. That was my senior year in high school when we went
6 to the Michigan School Solo Band Orchestra Festival
7 and it was on the state level. You have a district
8 left and you have a state level, and we had already
9 played at the district level.
10 At the district level we went to
11 another school in Detroit, and the schools didn't
12 look any different from Cass. So it was life went
13 on and that's normal.
14 But when we went to Livonia Churchill
15 High School in the suburbs of Detroit, it made me
16 realize that education was different. I always knew
17 that there was something strange about not having a
18 French book, or having no teacher for advanced
19 course in government for an entire year, I knew
20 there was something wrong with those things.
21 But I didn't realize the extent. I
22 didn't realize that it could possibly be different
23 at other places that weren't inside of Detroit.
24 And when I went to that Livonia
25 Churchill High School for that music competition, my
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1 music teacher had once told me that my clarinet
2 sounded like a Buick because it was so like cheap.
3 And so he gave me the one high qualify clarinets
4 that we had at Cass Tech, which is for one student.
5 And the rest of the instruments were
6 put together by rubber bands and tape to keep them
7 together.
8 And when I went to that competition
9 there was definitely a feeling of shock and hurt.
10 The first thing that I ever noticed was that they
11 had real sports facilities, they had a real football
12 stadium. They had tennis courts.
13 And beyond thought that what I
14 thought was extremely extra was the soccer field,
15 because I was like who plays soccer, right. And at
16 Cass we have a football field, but there is no real
17 stadium.
18 There are bleachers that sit in
19 between the parking lot where people park their cars
20 two feet away from the bleachers. And before the
21 football game at Cass could ever start there would
22 always be an announcement, faculty, could you please
23 move your cars so that the football game could
24 start.
25 And so was it was so different there.
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1 Like these kids they had stuff that I had never seen
2 before. And beyond that, when we went inside of the
3 building and saw the instruments that these kids
4 had, they had top line instruments.
5 I thought that my R-13 clarinet that
6 I had got from school was like really good, and I
7 was about to play something, you know. But these
8 kids had everything, they had like marble mouth
9 pieces, just their own personal instruments or the
10 school instruments. They had, you know, things that
11 were needed.
12 And I knew that that was going to
13 have an effect on me in the competition. If you
14 have a clarinet that's rubber banded together,
15 you're not going to have good intonation at all, and
16 you get marks for that.
17 And so that was absolutely a feeling
18 of shock, but beyond that hurt when I first saw the
19 differences.
20 Q. And how did the students at Livonia Churchill--first
21 of all, what was the race of most of those students?
22 A. Most of those students were white.
23 Q. Were there any black students?
24 A. I didn't see any. They weren't from Detroit.
25 Q. How did those students act towards the students from
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1 Cass?
2 A. I think, well, that school district is very
3 segregated as well as in Detroit. So, for a lot of
4 those students it was the first time interacting
5 with other black students.
6 And so they would come over and try
7 to strike up a conversation or whatever, while we
8 would be in the middle of practice, you know,
9 practicing to go in front of the judge.
10 And they would be like, what are you
11 going to play, you know, and where are you from and
12 all of those questions and stuff.
13 And it was kind of embarrassing to be
14 at a state level competition with white students
15 kind of being like, you know, all the confidence in
16 the world that they had.
17 And then with us going, having
18 confidence in the first place, you know, because we
19 didn't know anything would be different. But
20 getting there and feeling like, you know, I'm not
21 sure what's about to take place because we don't
22 have the same type of instruments, or the same
23 quality of instruments that these students have. So
24 it's kind of a very odd interaction. That turns
25 into a moment of like extreme embarrassment.
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1 Q. And can those differences, in your opinion, be
2 attributed to class?
3 A. No, because--I said earlier that Cass Tech was
4 pretty much mixed, and there are a lot of middle
5 class students that go there. You can tell by the
6 cars that people drove.
7 And so to me it was never a question
8 of class, because I was like, well, you know, I may
9 be poor but I know that there's middle class
10 students at Cass, and these students are middle
11 class.
12 But that wasn't the difference, the
13 difference was race. Those students were white and
14 we were black. And that was why they were given
15 every opportunity, every type of resource that we
16 just didn't even know existed.
17 Q. I want to ask you some questions about how you
18 became involved in the case. Somewhere near the
19 time of the Livonia Churchill competition, did you
20 come to hear a presentation about this lawsuit?
21 A. Yes, I heard a presentation by an organization
22 called the Coalition to Defend Affirmative Action By
23 Any Means Necessary. They gave a presentation to a
24 group of students in which I was a part of.
25 Q. Where was this presentation?
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1 A. It was at Cass. It was in one of their auditoriums.
2 Q. About how many other people heard it?
3 A. I would say about 200 other people heard it.
4 Q. Did you decide on the basis of that talk to become
5 and intervenor in this case?
6 A. Yes. It was that and seeing the differences in
7 suburban and the city schools, and participating and
8 rallying the fence for affirmative action. All of
9 that kind of combined and made me want to be an
10 intervenor.
11 Q. Did you also shortly after that attend a
12 demonstration at U of M, University of Ann Arbor in
13 a support of affirmative action?
14 A. Yes.
15 Q. And was that your senior year at Cass?
16 A. Yes, it was.
17 Q. How did you feel as a result of being at that
18 demonstration about your possibility of going to the
19 University of Michigan?
20 A. Well, that made me apply, because I hadn't applied
21 to the University of Michigan yet. I had already
22 made up my mind I was going to attend college, I was
23 going continue to be a dork, isolated myself just
24 doing my work. But going to that demonstration made
25 me want to apply to the University of Michigan.
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1 Q. Why?
2 A. To become someone who could fight to preserve
3 integration and affirmative action. When I tell
4 people that, they probably don't believe me. But if
5 not for that I probably wouldn't have ever--I
6 wouldn't have applied to Michigan had I known about
7 the attack on affirmative action. And just because
8 of that, I knew I had to come here to Michigan.
9 Q. Had you taken the standardized test that you
10 submitted with your application?
11 A. To Michigan?
12 Q. Yes.
13 A. Yes.
14 Q. What test was that?
15 A. I took the ACT.
16 Q. What was your score on that test?
17 A. 21.
18 Q. What was your GPA?
19 A. From Cass I had a 3.7.
20 Q. Were you then admitted to the University of
21 Michigan?
22 A. Yes, I was.
23 Q. Do you think you would have gotten in without
24 affirmative action?
25 A. I do not.
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1 Q. Why is that?
2 A. Because I know that affirmative action--the only
3 reason affirmative action is in place is because
4 there are institutions of education in this country
5 were segregated, that's the only reason it's here.
6 It's not some magic puzzle or whatever.
7 You know, it's not very difficult to
8 understand. It is because people were fighting to
9 integrate. And if you don't take that into account,
10 if you don't say that, you know, your university or
11 your institution of education, if you don't just
12 tell the truth that before affirmative action was
13 created, black and other minority students weren't
14 getting into this university, I'm not going there.
15 I'm not confident at all that I
16 wouldn't have got in before that, because it
17 was--affirmative action is what made it possible for
18 the university to become even remotely integrated.
19 Q. Do you think that the test score that you received
20 on the ACT reflected who you are?
21 A. No.
22 Q. Do you think it reflected whether or not you
23 deserved the education that Michigan can provide?
24 A. No.
25 Q. You have heard testimony about race being just
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1 another factor in admissions, like being an Olympic
2 diver or concert pianist, is that correct?
3 A. No, it's not. You can't equate race with anything.
4 There's nothing that you can say, well, race is like
5 X, Y or Z, nothing else exist. Because race, the
6 term race has a very historical meaning to it.
7 Because the black race, you have to
8 identify that the black race had to overcome
9 slavery, had to overcome segregation. And now it's
10 fighting to keep the opportunity, just to have an
11 opportunity to go to hire education institutions.
12 And it's not the same. Nobody is
13 trying to keep tuba players from going to the
14 University of Michigan. They're trying to keep
15 black people and other minority people from going to
16 the University of Michigan.
17 Q. You're a very competent musician? It's okay, you
18 can admit it.
19 A. Yes.
20 Q. Would you ever separate your mastering four
21 instruments from growing up black in Detroit?
22 A. No.
23 Q. Have you ever seen your musicianship as being
24 somehow separate from being black?
25 A. I'm not sure I understand what you mean.
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1 Q. You said earlier that music became your escape from
2 the conditions in Detroit. Could you ever then
3 separate your relationship to music from being black
4 in Detroit?
5 A. No. Not my particular relationship, no.
6 Q. Can anyone understand the person that you are
7 without understanding your life as a black person in
8 this society?
9 A. Absolutely not.
10 Q. Can anyone make decisions that are going to impact
11 your future without understanding your life as a
12 black person in this society?
13 A. No.
14 Q. At some point did you make a decision to attend
15 U of M?
16 A. Yes.
17 Q. I just want to talk some now about the atmosphere at
18 the University of Michigan?
19 A. Uh-huh.
20 Q. You attend the College of Literature, Science and
21 the Arts?
22 A. Yes, I do.
23 Q. Is that where you are now?
24 A. Yes.
25 Q. What year did you go there?
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1 A. In 1998.
2 Q. And how old were you?
3 A. I was 17.
4 Q. And how old are you now?
5 A. 20.
6 Q. Has the University of Michigan been a race neutral
7 experience for you?
8 A. No.
9 Q. Can you say more about that?
10 A. When I went to U of M, for the first time I realized
11 that I am a minority. I was never a minority in the
12 city of Detroit, because Detroit is over 90 percent
13 black. And there were things that went along with
14 being a minority at U of M and in Ann Arbor.
15 Q. What kinds of things?
16 A. You want to be a little more specific.
17 Q. Can you different give an example, say, from class,
18 were there any examples in class that made it stand
19 out to you?
20 A. Just on a general basis at U of M. I think people
21 have assumptions of how black students will act or
22 how they're performing in classes. But beyond that,
23 because I am a minority I do experience racism on a
24 very daily basis at the University of Michigan.
25 And I remember in my freshman year
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1 the first semester after I had taken--after I had
2 went to Summerbridge, I took a biology class. And
3 it was the first day of class and the teacher, the
4 graduate student kind of went around doing like an
5 ice breaker. And it's kind of odd for college, but
6 it's there so.
7 And she went around asking people
8 what's their favorite color, what's your favorite
9 movie and why. And I was one of two black students
10 in that class.
11 And when she got to me her question
12 was, what type of animal do you think you look like
13 and why. And I don't think she would have asked
14 that question of me if I was white.
15 And because of the fact that white
16 people have since, you know, people decided that
17 they could go to Africa and bring black people to
18 this country, have been thought of being less than
19 human, less of a person, it was written into our
20 constitution that black people were less than a
21 person.
22 So, for her to ask me what type of
23 animal I thought I looked like, you know, was really
24 offensive and she knew it, and everybody else in the
25 class knew it. Everybody kind of like gasped or
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1 like made a reaction and I was just staring at her,
2 because I couldn't believe that she had asked me
3 that question.
4 But she acted like absolutely nothing
5 was wrong. I mean even the white students were
6 acting like, oh my God, I can't believe she asked
7 that question. And she was like, so what is your
8 answer.
9 And I was like, well, you know what,
10 I don't think I look like any type of animal,
11 because I'm a human being. And she was like, well,
12 that's a great answer.
13 And that really did have an effect on
14 my performance in that class. I had a million
15 things going through my mind at that moment. My
16 initial thought was that I should really slap her,
17 and then I was like, well, I probably shouldn't do
18 that because I probably will get kicked out of the
19 university for that.
20 And then I thought, well, maybe I
21 should drop the class. And then I was like, I
22 really need this class. And I'm a really consistent
23 person, so I hate when I feel like I'm not in
24 control of my schedule, so I have to keep it the
25 same way.
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1 And I was like, I can't really be
2 like unorganized at this point, this semester has
3 already started. And it was just a million things
4 that was going through my mind. And I ended up
5 leaving that for at least four months.
6 Q. Why did it take you that long, or did you at some
7 point--sorry.
8 Did you at some point say something?
9 A. Yes, I said something at the very end of the
10 semester, after the last meeting of our class. I
11 sent her an E-mail, it was like that question was
12 really offensive and you should never ever ask
13 anybody that question.
14 You know, you should really never ask
15 anybody black that question, because you have grown
16 up in this society and you know what that means. It
17 took me four months to do that.
18 Q. Why did it take that long?
19 A. Because I wasn't sure how to react, I was constantly
20 thinking, like even in class is there something that
21 I could have said differently. How can I really
22 respond to this. Is she going to be mad if I raise
23 it now, and will that affect my grade.
24 And so it was the first time that I
25 had dealt with a face-to-face instance of racism, it
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1 was the very first time and I didn't know what to
2 do.
3 Q. Did it wear on you that is was unresolved for that
4 long?
5 A. Yes. Because I kind of felt, you know, not that I
6 ever thought that she would forget that she asked me
7 that question, because she certainly did not. She
8 knew exactly what I was talking about when I
9 E-mailed her.
10 But I was like, it is too late to say
11 something. And I thought about it every single day
12 that I was in that class.
13 Q. Would you say that that effected your whole
14 relationship to that class?
15 A. Yes. I'm not a big biology fan, but I'm certainly
16 not know.
17 Q. Did it diminish your enthusiasm?
18 A. Yes. It was my first semester and I went into there
19 thinking that I could just go and be a student like
20 everybody else. But that wasn't the case.
21 Q. Do you still replay that scene in your mind today
22 when you think about your classes?
23 A. Absolutely. I think about it a lot, and it's not
24 that--I did draw lessons from that instance. And
25 it's not that I have a blue print for how to act the
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1 next time someone says something racist to me. It's
2 not like I said, okay, I'm going to do this and I'm
3 going to say that. You know, I don't have a blue
4 print for it.
5 All I know now is that I have to say
6 something, and I am going to say something. How I
7 will say it, what I will say, I have no idea because
8 you're never prepared when someone says something
9 like that to you.
10 Q. It always takes you by surprise?
11 A. Absolutely.
12 Q. Did that incident change you?
13 A. I would say yes. I mean I always knew that, I kind
14 of knew in the back of my mind that when I went to
15 U of M I was going to be a minority, and that, you
16 know, people do have their own stereotypes and ideas
17 of what black people are like.
18 But I never knew what exactly that
19 would feel like. That made my realize that U of M
20 was going to be a completely different experience
21 from anything I had ever experienced in my life.
22 Q. Are you ever in a setting at the University of
23 Michigan where you feel like you are isolated from
24 those kind of comments being made to you?
25 A. No. After that you never let down your guard, you
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1 always--you don't expect something to happen, you
2 just know that it's a possibility of something
3 happening.
4 But you never allow yourself to be
5 caught off guard or relaxed. Like nobody is going
6 to say anything rude to me, it is always kind
7 of--you never let your guard down.
8 Q. And is that a burden that you have to carry because
9 of racism?
10 A. Yes. It's something that black students, they don't
11 think about that. You don't go and say, well, I'm
12 going to go to this new class and if you're white
13 you don't go there and say that, well, I hope
14 that--I can't be late because I don't want the
15 professor to think that black people are always late
16 and that's why I'm late, you know, I have to be like
17 extra early.
18 White students don't have to think
19 about that, that's a burden. When I will be there,
20 where I will sit. I don't sit in the back of the
21 class, because you don't want the professor to think
22 that you're slacking off or lazy and then you're
23 going to skate by, you sit in the front. White
24 students don't think about those type of things.
25 Q. When you respond to racist incidents, do you ever
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1 feel satisfied with your response?
2 A. No. I mean there's always something you can think
3 of later that you could have put it in another way,
4 because you're always trying to convince somebody of
5 how their point is wrong. You can't say that to me.
6 You know, you're always trying to
7 convince them of why they shouldn't say that. And
8 so when you're thinking about it in that way, you're
9 always thinking I could have made the point better
10 if I had said this or if I had said that. You can
11 always think of a million things that you could have
12 done.
13 Q. Does it ever run through your mind that no matter
14 what you say they may not change their mind?
15 A. Yes, there are people like that. And I really don't
16 know how to respond to that, like you try everything
17 that you can to explain to that person, and they're
18 just fundamentally racist. It's really dysfunction
19 that some people can have those ideas and beliefs.
20 Q. How does it feel to walk around campus?
21 A. Because most people who walk around campus don't
22 look like me, you do feel ultra isolated even just
23 walking downtown or walking to a store or something
24 like that.
25 And the main way I can really
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1 illustrate that for you is that, I have often had
2 conversations with my friends and thought this to
3 myself that when I first went to U of M and I would
4 walk down the street and a white person was coming
5 by, I would always step out of the way.
6 Whether I had to step in the snow or
7 the mud or whatever it was. And I came to realize I
8 was like, you know, I'm always stepping in the mud,
9 people never move out of my way, you know, I was
10 kind of like that.
11 It almost as if people expected me to
12 move because I'm black, and, of course, they had the
13 right because the sidewalk was made for them and not
14 for me.
15 So, I realized that, I was like,
16 well, I'm not stepping in the mud no more. You
17 know, I'm not walking in the snow, I'm going walk on
18 the sidewalk like everybody else. They don't feel
19 the pressure to move out of my way, why is it that I
20 feel the pressure to move out of their way.
21 So now I don't do that anymore. It
22 took me a while to realize that I was even doing
23 that. And that was almost the rule in the south in
24 Birmingham when segregation was there, that you had
25 to move out of the white peoples way.
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1 And my mom is from Birmingham and she
2 never related that story to me. For some reason or
3 another, it was already in my mind that that is what
4 I was supposed to do.
5 And so now I don't move anymore, and
6 sometimes I bump into people, we bump into each
7 other and sometime we don't. Because I have just as
8 much as the right to walk on the sidewalk as
9 everybody else.
10 And it's kind of a very basic thing.
11 First I thought it was just me, and I was like, you
12 know, you guys like find that people don't move,
13 like people won't even scoot over a little bit when
14 you're walking down the street.
15 And all of my friends was like, yes,
16 yes, it was like everybody's story. They had been
17 wondering if everybody else was like thinking the
18 same too, if you just felt like if you were like
19 crazy.
20 But I was like, well, I know it's
21 just not me. And it was other black students who
22 had that very same experience. And white students,
23 I mean you never--I never heard a white student say,
24 yes, I just feel like people just disrespect me
25 because they try to knock me off the sidewalk. It's
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1 not the same.
2 Q. Have there been other examples of racism in your
3 classes?
4 A. Yes. Another instance happened in my sophomore
5 year, first semester again. Nice way to start off
6 every year. We were discussing theories of Teddy
7 Roosevelt in my history class. And he had some
8 really racist views of black people.
9 And so we had this reading, and the
10 point of the reading was that sometimes even though
11 people were, you know, had so much power and
12 presidents of the United States, their racism could
13 effect foreign policy, it could effect whatever it
14 is, the way that they ran the country.
15 And so we were supposed to be having
16 the discussion in my class, but it turned out to go
17 the wrong way. And this woman in my class, the
18 graduate instructor asked, what do you think about
19 what Teddy is saying here.
20 So, this woman says, well, I agree
21 that black people are savage like, because they
22 don't have their own country, and they just kind of
23 wander around the world. And that she believed in
24 biological determinism.
25 And the graduate student instructor,
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1 he just kind of changed the subject really fast and
2 hoping that nobody caught that, but it didn't work.
3 She was completely confident in what she said, she
4 had the paper right there and nobody else said
5 anything. Like nobody else in the class said
6 anything.
7 And I was really mad, and it was only
8 me and another black woman in there. And the other
9 black woman she started crying, and she was just
10 sitting there, she wasn't saying anything, she was
11 just sitting there crying.
12 And I was like, whoa, I'm not about
13 to start crying, because I'm about to go. So, I was
14 like I'm not about to have a breakdown in this
15 classroom or whatever.
16 So, I got up and I left, I got my
17 stuff and I left. And then I felt really bad for
18 leaving her in there. Why I felt like it was my
19 responsibility to go back for her, I don't know.
20 Probably because we're both black.
21 So, I went back after the class and
22 talked to the GSI. And I knew that all the white
23 students in the class did not agree with this woman,
24 but they couldn't voice that, they wouldn't say it.
25 And one of the white guys tried to
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1 illustrate that we didn't agree with that by giving
2 me a compliment about my hair. Which I didn't like
3 that for the simple reason I had my hair in braids
4 for several weeks at that point, and he had seen it
5 several times.
6 So, it was just that day he was like,
7 Erika, your hair is beautiful, I just want to let
8 you know that. I was like thanks.
9 And so I talked to the GSI and, you
10 know, he agreed that the woman was kind of out of
11 line, and he suggested I talk to the professor.
12 So, when I went to the professor's
13 office hours she had had an emergency so she didn't
14 have office hours that day. So, I went home, I was
15 like I will talk to her at another time.
16 But the professor called me in my
17 room, in my dorm room. And she was kind of like,
18 well, your GSI told me what happened, and he told me
19 that this woman had said stuff before, and I was
20 like, yes, she has and he hasn't said anything.
21 And so she was like, well, you
22 know, someone really needs to say something to her
23 and I was like, I agree. And she was like, and I'm
24 not trying to put any pressure on you, but I think
25 you're the person to do it.
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1 But at the same time she was like,
2 well, don't feel any pressure to say something
3 because you're black, you don't have to represent
4 the black race. And I was like I know that, but she
5 said but I really think you should say something to
6 her.
7 And she was like, well, what I'll do
8 is I'll send out an E-mail to everybody to be kind
9 of saying that the professor doesn't agree with this
10 type of behavior. So, I was like okay.
11 And I talked to my GSI again and he
12 was supposed to explain the purpose of reading the
13 Teddy Roosevelt piece anyway.
14 But what actually happened when I got
15 to class, the professor sent out an E-mail saying
16 that you have to respect people's opinions and their
17 views.
18 And it came off really odd because I
19 never said anything to her. I didn't say anything
20 to the woman, I got up and left and the black woman
21 sat there and cried. And I wasn't going to sit
22 there crying.
23 So, it came off that I was being
24 disrespectful of this woman and her views, that she
25 had the right to say whatever she wanted to. No
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1 help from the professor.
2 And then when I got to the class, the
3 graduate student instructor was supposed to explain
4 what the point of making us read the Teddy Roosevelt
5 piece in the first was, but he didn't end up doing
6 that.
7 He ended up saying okay, you know,
8 good afternoon. Everybody saw the professor's
9 E-mail and everybody was like, yes, we saw it. And
10 he was like, and now Erika wants to talk to the
11 class.
12 So, I ended up having to explain to
13 the class how that made me and the other black girl
14 feel. And explain that that wasn't the point of the
15 reading in the first place.
16 I had to do two jobs. I had to say,
17 you know, you can't treat black people any type of
18 way, you can't say any old thing that you want to
19 say. And then I had to be like, and that wasn't the
20 point of the reading anyway. And that was another
21 instance.
22 Q. Do you think that this action like that and the
23 thoughts that they produced for you have a negative
24 impact on your grade point average?
25 A. Absolutely.
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1 Q. Why?
2 A. I have more than one job as a black student at the
3 University, I should get paid for this. I'm just
4 joking. But you always have to think about being
5 the black student in that class.
6 You always have to deal with ignorant
7 or racist comments, be they on purpose or by
8 mistake, it doesn't matter it has the same effect.
9 And I'm not saying that all the white
10 student meet after class and think of things to say,
11 but that's not the case. But whether it's out of
12 not being exposed to integration, or just someone
13 who just has it in for black people or other
14 minority students, you always have that in the back
15 of your mind.
16 You have those instances and this is
17 where you have to take on multiple roles where you
18 have to deal with those comments and still come back
19 the next day and be ready to learn. Those things
20 effect you everyday, everyday.
21 And I mean if I dropped every class
22 where someone said something racist to me, I
23 probably would not be able to graduate in a number
24 of years. So that's not an option.
25 You have to keep going everyday no
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1 matter what people say and deal with that, and still
2 come out a good student.
3 Q. Did this student think that what she was saying was
4 racist?
5 A. No, she didn't. It was really funny to me, because
6 when I talked to the class that day she tried to
7 interrupt me before I even finished, and so the GSI
8 was like you can't interrupt her, and she was, like
9 okay.
10 And just by the fact of me saying
11 that, you know, you can't be saying that kind of
12 stuff, especially thinking that nobody is going to
13 say anything back, she started crying.
14 And I was like, well, I didn't really
15 care that she was like sitting there crying, like
16 you know, I'm not racist, I would never say anything
17 racist. I'm the last person to be racist.
18 And so I was like, but you did say
19 that you thought black people are savage like, and
20 she was like, well, yes, I did say that.
21 And then I was like, and you did say
22 that you believe in biological determinism and
23 that's why black people were generally like in lower
24 socioeconomic classes.
25 She was like, yes, I do believe in
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1 biological determinism, but I would never use that
2 to be racist. And so I was really shocked by that
3 and I really didn't know what to think after she
4 said that.
5 I was kind of like, okay, well, that
6 is racist to think someone is biologically inferior
7 than you. And by your mercy, you won't use that
8 argument to be racist, thank you, you know.
9 Q. Does a day go by, or even an hour when you're not
10 conscious of being black?
11 A. No.
12 Q. The assumptions that people make about you because
13 of your race, do you think that they are made
14 because of the existence of affirmative action?
15 A. Absolutely not. The assumptions of black
16 inferiority and they use this word stigma, was
17 created long before affirmative action was ever
18 created.
19 That's why people didn't want to
20 integrate their schools, that was long before
21 affirmative action. When they wanted to keep the
22 south segregated and those students who were
23 attending schools like Linda Brown who was involved
24 in the Brown versus Board Education case.
25 She didn't feel stigmatized because
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1 of something called affirmative action, because it
2 didn't exist then. If she felt stigmatized it was
3 because people had racist views of her and
4 assumptions about her.
5 And affirmative action is to offset
6 those. To offset those assumptions and stigmas that
7 people already had. And to make it possible for
8 people to be able to integrate the institution and
9 go to the schools that they want to go to.
10 Q. Is there anything that you would say is the hardest
11 thing about being black at the University of
12 Michigan?
13 A. The hardest thing about being black at U of M is
14 trying to hold onto your own culture while
15 succeeding as a minority in an environment where you
16 are a minority.
17 People have all of these different
18 theories about what it takes to be successful in
19 American society. And some people will say that you
20 have to pretend like you're not black when you're
21 around white people.
22 And then when you go back home you
23 can just kind of like be yourself again, you can
24 relax. That is very deep at Michigan.
25 And as a black student at Michigan,
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1 you have to fight to keep a sense of yourself, to be
2 yourself. I'm not going to pretend like I'm
3 somebody that I'm not ever.
4 I'm not going to talk the way you
5 want me to talk, I'm not going to act the way you
6 want me to act because you think it's the way to act
7 in order to be successful. I'm not going to do
8 that.
9 And it's a daily fight and a daily
10 struggle to be yourself and to succeed there.
11 Because a lot of students won't fight, they won't
12 fight against racism.
13 And if you don't fight against the
14 racism, if you don't say nothing when people say
15 those things to you, you just swallow it all, and in
16 swallowing it all they try to prove to the white
17 students that, you know, I am just like you except
18 I'm black.
19 And I have my culture and then their
20 culture is exactly the same except for the mistake
21 that I was born black, and I'm not going to do that.
22 And that's a really hard struggle for
23 most black students there. Is to be yourself
24 without people--without feeling like you have to
25 conform to everybody else's idea or the majority of
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1 ideas. Whatever everybody else think is the
2 successful way, or the road to success.
3 Q. You referred to being in the minority at the
4 University of Michigan. Do you feel today that you
5 would have been better off if you had attended a
6 historically black college or university?
7 A. No, because there are absolutely benefits of going
8 to an integrated institution. I wouldn't go to a
9 historical black college or university, because they
10 suffer from a lot of things that I suffered from at
11 Cass Tech.
12 They don't get that much funding.
13 There's not, you know, a great amount of
14 opportunities there. And now that the institutions
15 in themselves are not worthy of going to, but you
16 just don't have the same opportunities as you would
17 if you went to an integrated institution.
18 And I value deeply the fight for
19 integration, and that is a tradition that I very
20 deeply stand in.
21 Q. In the class where the woman made the comment about
22 biological determinism, on the other side of things
23 is there a way which you stepped forward as a leader
24 to that class?
25 A. Yes. I'm on the student government at Michigan.
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1 Q. In the example about the woman who made the comment
2 that she was a biological determinence, what role
3 did you play to that class as a whole?
4 A. Beyond explaining what the purpose of the reading
5 and the class discussion was, I played the role of
6 trying to educate everybody about, you know, I want
7 to say the benefits of integration.
8 But also making come to light and
9 creating discussion for those students about how do
10 you deal with instances of racism. Even for the
11 whites students, because the class is majority
12 white. It made them understand deeply the benefits
13 of integrated schools.
14 Q. Do you think that those white students who agreed
15 with you, but who did you speak, saw you as their
16 leader?
17 A. I think so. I mean when I was talking to the class,
18 there were white students who agreed with me but
19 said nothing by nodding their heads while I was
20 talking.
21 And I did something that they
22 couldn't do, obviously they didn't feel like they
23 could say something to the woman.
24 Q. What is your GPA?
25 A. Right now my grade point average is 3.0.
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1 Q. Are there other ways in which you have shown
2 leadership on the campus?
3 A. Yes, I'm on the Michigan Student Assembly. I'm a
4 literature, science and arts representative.
5 Q. When did you first get elected in that position?
6 A. My first year there during the first election. I
7 ran with the Defend Affirmative Action Party and was
8 elected with six or seven other people in the party.
9 Q. Would that have been a campus wide election?
10 A. Yes, it was.
11 Q. And that would have been your first semester at the
12 University of Michigan?
13 A. Yes, it was.
14 Q. How have you used that role as a representative on
15 the Student Assembly to be a leader?
16 A. I've been able to be one of the leaders in the fight
17 for defending affirmative action on the campus,
18 through being a part of the Defend Affirmative
19 Action part on the assembly.
20 I have been able to help to educate
21 the campus about what affirmative action really is
22 and how it works. I have been able to travel the
23 country to different colleges and universities from
24 Philadelphia to U.C. Berkley talking about the
25 benefits for affirmative action and integration.
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1 I have written numerous resolutions,
2 spoke at numerous rallies numerous forums. I have
3 just kind of been out there.
4 Q. And for all of that, what will that amount to if
5 this case is decided against affirmative action?
6 A. Absolutely nothing. Only three years of hard work
7 going nowhere.
8 Q. Have you had experiences on the campus in which you
9 saw that the ignorance and racism of white people
10 could be changed?
11 A. Absolutely.
12 Q. Could you say something about that?
13 A. This past summer I took a History of Detroit class,
14 and at first when I was getting ready to go into the
15 class I was kind of like, well, I know we're going
16 to have stereotypes who are going to come to the
17 class about what Detroit is like and how people in
18 Detroit act, and their own theories for why the city
19 is so run down. I really didn't feel like hearing
20 that, but I wanted to take the class anyway.
21 And I took the class and there were
22 five black students and the rest of the students
23 were white. So the class is about maybe 17 students
24 in the class.
25 And people did come in with their own
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1 stereotypes of why their mom didn't like Coleman
2 Young, or what they thought about what caused the
3 economic deficiencies in the city.
4 And that mean that the beginning of
5 the class I was on the defensive, I was like well,
6 whatever you say is the truth. That's kind of how
7 it is when you're in the minority, it doesn't matter
8 what people say. All you know to identify with is
9 that you're black.
10 And whatever they're saying that
11 sounds like a stereotype, you're like, no, that's
12 not true and the basis of that is that you're black.
13 But the discussion was able to move
14 beyond that and like you're reading the books and
15 just discussion, we even took a trip to Detroit.
16 The white students who had come with
17 assumptions and stereotypes from their parents in
18 the beginning of the class, had changed their mind,
19 and that meant a lot to me.
20 That meant that I didn't have to be
21 on the defensive when they would say Detroit is kind
22 of like run down and I would say, no, it's not,
23 which is completely not true, right?
24 Well, I was able to say, well, it is
25 run down because X, Y and Z and agree with them. We
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1 were able to agree with theories that we all thought
2 was like the problems. And that was really
3 inspiring to me.
4 And when I see those white students,
5 some of the white students I do talk to when I see
6 them in passing. They do speak to me and
7 acknowledge my presence. And that's really a good
8 feeling, I really like that class.
9 Q. Have you ever felt afraid for your safety in
10 Ann Arbor?
11 A. Yes.
12 Q. Is it different from how you felt in Detroit?
13 A. It is different, because there's the possibility of
14 danger in both places, but it was a very different
15 danger.
16 It was like when I was out there
17 catching the bus at 6:30 and 6:50 in the morning
18 when I was in high school, if anything happened to
19 me it would have been a random act of violence or
20 whatever, or something random.
21 But in Ann Arbor I always think about
22 being attacked because of the fact that I'm black.
23 I never forgot that the Klan, Klu Klux Klan came to
24 rally in 1998 right after I had got accepted into
25 the university.
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1 And when I walk down the street, I do
2 think about that. I do think about there being a
3 potential Klans supporter. And I often hear people
4 say that the Klan has a right to speak, and they're
5 not really doing anything they're just kind of
6 playing.
7 But those people aren't the people
8 who are going to get tied to a--potentially tied to
9 the back of a pickup truck and dragged to death,
10 that person is going to be me because I am black.
11 So I always think about that kind of
12 stuff when I'm walking down the street. And it is a
13 different type of fear.
14 MS. MASLEY: I'm going to take a few
15 minutes to confer with counsel.
16 THE COURT: Okay.
17 BY MS. MASLEY:
18 Q. Erika, you said that it took affirmative action for
19 you to be able to get to the University of Michigan,
20 is that correct?
21 A. Yes.
22 Q. Despite all of your achievements, do you think now
23 that without affirmative action you would be able to
24 get through the University of Michigan Law School?
25 A. No.
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1 Q. Would you ever feel given your whole life and your
2 experiences on the University of Michigan campus,
3 would you ever feel ashamed to rely on affirmative
4 action to gain admission into the University of
5 Michigan Law School?
6 A. Absolutely not. Because some people try to make it
7 very complicated, very complicated explanation why
8 race needs to be used in admission.
9 And my simple answer is, if you don't
10 take race into account these institutions would not
11 be integrated. There would hardly ever--there is
12 always one or two, and one or two is not enough.
13 One or two black people in an entire school, that's
14 not enough.
15 And I would never be ashamed of a
16 university, A, realizing and saying that, yes, some
17 years ago we wouldn't allow black students into this
18 university.
19 I'll tell you, I have a class right
20 now, the History of the University of Michigan. And
21 when that university was established, there was no
22 black students there, there were no women there.
23 And for the admissions policy to take
24 that into account and to say, yes, the society has
25 discriminated against black and other minority
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1 people, and without these programs, we wouldn't let
2 them into the university. So you have to take race
3 into account.
4 And I would never be ashamed of that.
5 I mean a simple acknowledgement of history, I don't
6 have a problem with that.
7 Q. And even if you could apply and you could get in
8 without affirmative action, if it were a question of
9 it being one or two, would you go?
10 A. Absolutely not. I would never participate in a
11 university that cannot admit to the truth. Cannot
12 admit to the truth that black and other minority
13 people are still being discriminated against, and
14 have been discriminated against in the past.
15 I want no part of that. Because
16 wherever I go to school, wherever I go to learn, the
17 truth has to be told. And if that's not there, you
18 don't take that into account, I can't go to that
19 university.
20 Q. Would you rather not have gone to the University of
21 Michigan?
22 A. I'm glad I did. I mean I like it there.
23 Q. Are you glad you've made this fight?
24 A. Absolutely. It's a fight I have to make. I didn't
25 feel like I had much choice.
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1 Q. Have you ever thought you should stop fighting for
2 black equality?
3 A. Absolutely not. Because either you fight or you
4 don't. And if you don't fight, you lose.
5 Q. And if you fight, you'll get a chance of winning?
6 A. If you fight you have a chance of winning.
7 Q. Do you think being black has made you a stronger
8 person?
9 A. Yes.
10 Q. Do you think being black has made you a better
11 leader?
12 A. Absolutely.
13 Q. A more critical thinker?
14 A. Yes.
15 Q. A more conscious and creative individual?
16 A. Yes.
17 MS. MASLEY: I have no further
18 questions.
19 THE COURT: Mr. Payton.
20 CROSS-EXAMINATION
21 BY MR. PAYTON:
22 Q. Good morning, Ms. Dowdell.
23 A. Good morning.
24 Q. I'm going to be very brief. Racism is personal and
25 painful and it's disgusting, isn't it?
GRUTTER -vs- BOLLINGER, ET AL
77
1 A. Yes.
2 Q. And when you look at the problems that our society
3 faces because of racism and racial segregation, and
4 you've described I would say almost total racial
5 segregation in your personal history.
6 Those problems create enormous
7 challenges for our society, including our
8 educational institutions.
9 And I guess I just want to end by
10 saying that those challenges have caused the
11 University of Michigan Law School to conclude that
12 it is crucial as an educational matter that it use
13 race in its admissions process in order to have
14 meaningful numbers of African American students,
15 Hispanic students, Native Americans students.
16 I have no further questions.
17 THE COURT: Statement. Plaintiff?
18 MR. RICHTER: I have no questions,
19 your Honor.
20 THE COURT: Okay. Ms. Massie, I want
21 to indicate that this testimony was very compelling
22 and I'm glad that we all listened to it, but from
23 now on I'm going to hold you to the issues that are
24 before the court.
25 Diversity isn't one of them as
GRUTTER -vs- BOLLINGER, ET AL
78
1 Mr. Payton has just indicated in his questioning.
2 But anyhow from now on I'm going to hold you to what
3 the issue is before the court.
4 MS. MASSIE: Judge, the issues that
5 Erika just testified to, I think we have to have
6 some discussion of this. They are the issues that
7 are before the court.
8 THE COURT: I think as I said it was
9 very compelling and I think many of the issues that
10 she's testified to are before the Court. And I
11 thought it was important that we listen to the
12 testimony.
13 And again anyhow, that's all I have
14 to say. Call your witnesses, I have indicated I'm
15 going to give you as much latitude as I possibly
16 can, and I will continue to do so. But to some
17 extent we have to stick to the issues.
18 Okay, we stand in recess.
19 (Court in recess.)
20
21
22
23
24
25
GRUTTER -vs- BOLLINGER, ET AL
79
1 -- --- --
2 THE COURT: Okay, next witness.
3 MR. WASHINGTON: Judge, before we call our next
4 witness I just want to make statement for the Bench -- my name
5 is George Washington. And it's on the question of relevance.
6 In our view, Judge, the Court just like the overwhelming
7 majority of white people in this country does not at this
8 point have an adequate understanding of race and racism in the
9 United States and we are presenting witnesses who we think are
10 vital for this Court to hear on this case which is of critical
11 importance for race and race relations. And we think we are
12 presenting them -- we believe you must hear what our witnesses
13 have to say, both the lay witnesses and the expert witnesses.
14 So the testimony which was just presented in our view is of
15 critical relevance to this case, as Professor Orfield's
16 testimony, as is the other testimony. And that's a statement
17 on behalf of all of us.
18 THE COURT: Okay. Mr. Washington, I appreciate what
19 you're saying, and I don't disagree with you. I guess maybe
20 my timing was off. I think it is very important, and I want
21 to learn as much as I possibly can by all means. I think it is
22 an important case, and I think I've said right or wrong and
23 part of the reason I thought it was important to do what we're
24 doing here today is because it's important, not necessarily
25 for the record, but for the record, but also for me because
80
1 I'm the one who's going to ultimately decide this case.
2 What I meant to say and perhaps I didn't do it as
3 artfully as I should have or my timing was off, is that there
4 were certain things that I think are relevant, number one.
5 And certain things that I think are important to be said and
6 to be learned, but there are other things that perhaps are not
7 an issue.
8 For example, in this instance, nobody challenges the
9 issue of the importance of diversity, especially the
10 importance of diversity in under-represented minorities. So
11 that was the part that I was talking about, not the overall
12 part of it.
13 MR. WASHINGTON: All right.
14 THE COURT: We're on different wave lengths. I just
15 think that issue -- like I said, my timing was probably off in
16 terms of saying it at that particular time. But --
17 MR. WASHINGTON: If I could just say one other thing,
18 we do not believe that the Court can understand the question
19 of test scores and grade point averages, and the alleged
20 double standard which the plaintiffs are asserting exist here
21 unless you understand the reality which Ms. Dowdell described
22 really with tremendous brilliance in our view --
23 THE COURT: And my view also.
24 MR. WASHINGTON: And that is the point of our
25 statement. A statement as I said on behalf of all of us.
81
1 THE COURT: Very well. As I said, I'm not
2 disagreeing with you, and I'm here to listen and to learn.
3 MR. WASHINGTON: Very good. Thank you.
4 MS. MASSIE: Gary Orfield is our next witness.
5 G A R Y O R F I E L D ,
6 A having been called as a witness herein, and after
7 Having been first duly sworn to tell the truth, was
8 Examined and testified as follows:
9 DIRECT EXAMINATION
10 BY MS. MASSIE:
11 Q Professor Orfield, can you spell your name for the
12 record?
13 A Gary Orfield, O-R-F-I-E-L-D.
14 Q Give us your basic geographical data, where and when you
15 were born?
16 A I was born in 1941, in Minneapolis.
17 Q Did you grow up there?
18 A I did.
19 Q Tell us your educational history if you would?
20 A I'm a graduate of public schools in Minneapolis, and of
21 the University of Minnesota where I graduated in political
22 science. I went to the University of Chicago and received my
23 masters, Ph. D. in political science, and then began teaching
24 and a research career.
25 Q If you could summarize the highlights of that teaching
82
1 and research career, it would be very irritating and tiresome
2 to go through your entire resume, but if you could at least the
3 give the Court a sense of some of the high points that would be
4 very helpful.
5 A Well, I basically taught at five research universities,
6 the University of Virginia initially. Princeton University,
7 University of Illinois, the University of Chicago, and Harvard
8 University. I've also worked at research centers including
9 Brookings Institution. I've done brief stints with the
10 government, the U. S.Civil Rights Commission. My highlights
11 are on many kinds of research and many hundreds of wonderful
12 students.
13 Q Can you tell us your main current areas of research?
14 A I research particularly on issues of educational equality
15 at this time. During this year, we will publish three edited
16 volumes on educational and equality issues. One will be on an
17 issue on school reform. It's called "Hard Work for Good
18 Schools." It's about Title I Programs in the federal
19 government. The second one is on testing. It's called,
20 "Raising Standards or Raising Barriers." It's about the effect
21 of testing and accomplishments of testing on active --
22 completion of the school --
23 Q Do you mean standardized testing?
24 A Standardized testing.
25 And we are publishing a book called, "Our Diversity
83
1 Challenge," which is about -- research on impacts of
2 diversity. I will also be issuing a report on School
3 Segregation Trends in he 1998-99 school year in the relatively
4 recent future.
5 Within the last couple of weeks, our project ran a
6 national conference together with dropouts in United States.
7 This Friday, we're running a conference at the University of
8 Texas with research centers on the impact of the changes in
9 testing and in college admissions tests at the Texas
10 Institution.
11 We are doing a study now about the Florida Plan.
12 We've been doing interviews by phone, and we'll be doing
13 interviews in the field on that.
14 Q What you mean by the "Flor Plan" if you would?
15 A The Flor Plan, is the -- called the One Flor Plan to
16 admit the top twenty percent of the graduating class of each
17 high school in Florida.
18 Q And that was instituted as a replacement for affirmative
19 action programs in Florida's higher ed?
20 A By Governor Bush, yes, sir.
21 Q Have you testified as an expert witness before?
22 A Yes.
23 Q In what kind of cases?
24 A On many kinds of cases. In school segregation cases,
25 housing discrimination cases. Some on higher education. Those
84
1 are the major areas in which I've testified. And I think in
2 some cases I just filed affidavits or -- done depositions, and
3 the issue has been settled before trial.
4 Q You were an expert in the University of Washington Law
5 School Affirmative Case; is that right?
6 A That's correct.
7 Q And have you been retained by lawyers or appointed by
8 courts, or both?
9 A I have never been retained by lawyers. I have always
10 served as a volunteer in cases. I have been retained by
11 judges. I've work for judges as a court-appointed expert or
12 special master in some cases.
13 Q Have you testified on other matters involving race,
14 racism, and education in other forums, I mean specifically
15 congressional and similar hearings?
16 A Yes.
17 Q Tell us about those.
18 A Well, I've participated in many congressional hearings,
19 in state legislative hearings, and in state rule making
20 hearings. I've worked with the National School Board
21 Association. I've worked with the -- done a report -- I've
22 worked with many state and national educational organizations.
23 I'm currently doing some work with the National Education
24 Association.
25 Q Forgive me, did you mention your chairmanship of the
85
1 Civil Rights Project already? I'm not sure that you did.
2 A I've served together with my colleague, Christopher Evers
3 from Harvard Law School, co-directors of the Civil Rights
4 Project at Harvard which is a research center on civil rights
5 issues.
6 Q Which has been responsible for backing some of the
7 projects you mentioned earlier as I understand?
8 A Yes, it's the mechanism through which we have carried out
9 a number of these projects, and many others in the process now.
10 Q You and the project have received grants from numerous
11 foundations, could you name several?
12 A We received grants from the Ford Foundation, from the
13 Mott Foundation here in Michigan. From the MacArthur
14 Foundation, from the Carnegie Foundation, from the Spencer
15 Foundation for educational research. I think those are some of
16 our major funders.
17 MS. MASSIE: Judge, I'd like not take any more time
18 with this. I know you have a copy of Professor Orfield's CV.
19 THE COURT: I have read it and I don't believe the
20 plaintiff has any objection, nor the defense to allow him to
21 testify as an expert.
22 MS. MASSIE: Great.
23 BY MS. MASSIE:
24 Q Professor Orfield, please turn to Tab 167.
25 A Yes.
86
1 Q Got it?
2 A My glasses just broke.
3 (Pause in proceedings.)
4 BY MS. MASSIE:
5 Q If you turn for me quickly to Exhibit C.
6 THE COURT: What exhibit number are you on?
7 MS. MASSIE: I'm sorry. We're at Tab 167, which I
8 had directed Professor Orfield to turn his attention to. I'm
9 going to wait for you to get your hands on it.
10 THE COURT: Thank you. 167?
11 MS. MASSEY: Correct.
12 THE COURT: Okay. Ready.
13 BY MS. MASSIE:
14 Q If you could look at your Exhibit B to your Exhibit 167.
15 Q Exhibit B?
16 Q I'm sorry. I wasn't being clear. What I meant to ask
17 was whether within Exhibit 167 you have the exhibit marked
18 there, but I believe --
19 A Yes, I do.
20 Q You do. I'm sorry. Exhibit B is entitled "Diversity" --
21 what I mean to direct you to is Exhibit C. Excuse me.
22 A Yes, I have it.
23 Q You just mentioned when we were speaking to your current
24 projects what sounded like it was going to be an update to
25 this; is that correct?
87
1 A Yes, and I have been issuing reports on state segregation
2 in American schools since the 1970s, twelve of them, and we're
3 going to be issuing another on this year.
4 Q Have there been any dramatic changes in your conclusions
5 or in the trends that you identify in Exhibit C to your export
6 report?
7 A Well, our forthcoming study will show an acceleration of
8 segregation in the South and a rapid expansion of minority --
9 for residents and minority segregation in the suburbs, the
10 metropolitan areas, but otherwise, the general trends are the
11 same.
12 Q Can you give us a very general description of those
13 trends and then we'll come back and break them down a little
14 bit more.
15 A Certainly. Basically up until the time of the Brown
16 decision, the entire country was very segregated for
17 African-American students. And nobody even measured
18 segregations for Latino students, but in all likelihood very
19 high.
20 We didn't get really good national data on
21 segregation until after the Enactment of the 1964 Civil Rights
22 Act, and a collection of data that followed that Act. From
23 the period when we begin to closely, we went from almost
24 complete apartheid in the South in 1954, almost one hundred
25 percent of black students and teachers were in completely
88
1 segregated institutions, to a situation whereby 1970,
2 following the Enactment of the Civil Rights Act and its
3 enforcement by the Executive Branch of the Court, the South
4 became the most integrated part of the United States.
5 Throughout all of the data that we have the most
6 intense segregation that existed in the country since 1970,
7 has been in the major industrial states of the northeast and
8 midwest, and the absolute center of segregation for black
9 students in the country have been -- typically have been in
10 four states, in Illinois, and Michigan, and New York and New
11 Jersey, where you have very large metropolitan areas, very
12 large African-American populations and extreme residential
13 segregation and fragmentation of the metropolitan areas into
14 many separate school districts.
15 MS. MASSIE: If I could ask you, George, to put up
16 Proposed Exhibit 196. I will talk to counsel later and see if
17 there are any objections to any of these exhibits.
18 THE COURT: 196?
19 MS. MASSIE: Yes. They are based on things already
20 in the record so I don't anticipate any.
21 BY MS. MASSIE:
22 Q Professor Orfield, do you want a hard copy of that?
23 Would that be easier?
24 A I have a hard copy.
25 Q Okay.
89
1 A Yes. Well this is a chart that shows the most segregated
2 states in the United States for black students in 1998-99,
3 which is the most recent data that's available from the federal
4 government and what will be in our forthcoming report measured
5 three different ways. And it basically here shows that in the
6 state of Michigan only seventeen percent to the students in the
7 state or black students are in majority white schools. In
8 other words, eighty-three percent of the black students in the
9 state of Michigan are in predominantly minority schools, in
10 schools that we would call segregated schools.
11 On the measure of what we call extreme segregation
12 which is ninety to one hundred percent minority schools,
13 Michigan ranks number one. Sixty-four percent of all the
14 black students in the state are in extremely segregated
15 schools. These are the ones that you might call
16 hyper-segregated schools where there is little or no contact
17 with students of other racial groups.
18 In terms of the third measure that we use which is
19 call the Exposure Index which shows that typical composition
20 of a class -- of a school attended by students in the states
21 which involves computing every school in the state and
22 figuring proportions and so forth, it indicates the typical
23 black student in Michigan is in a school that is about eighty
24 percent non-white. And Michigan ranks second in the country on
25 this measure. So Michigan ranks between first and third out
90
1 of the fifty states on these three measures of segregation of
2 schools in the most recent data that's available in the United
3 States.
4 Q In your view are those the three best ways of trying to
5 provide a matrix or a description of segregation?
6 A I think those are three very good ways of giving you
7 indicators. These have been valuable and understandable. In
8 many of the measures that are used in sociology are very
9 difficult for people to understand. So we found that most
10 people can understand these measures. And if they do produce
11 -- as you can see, pretty consistent rating systems.
12 Q That was my next question actually, does the information
13 in the three columns tell you different things?
14 A Yes.
15 Q Can you tell us a little bit about the different
16 conclusions you might draw from the different columns?
17 A Well, for me basically if you were to compare Michigan
18 say with -- I notice outside your courtroom here you have a
19 Norman Rockwell picture of a young black -- a young black girl
20 being led into a school in Little Rock in the 1950s.
21 Basically there's no place in the South that is
22 anywhere close to the segregation level of Michigan. There's
23 no place where there's less contact between blacks and whites
24 in any of the areas where there is apartheid in the country
25 until a generation ago. A little girl was never led into a
91
1 school in the Michigan area.
2 I just read a report from the National Bureau of
3 Economic Research yesterday that showed that in metropolitan
4 Detroit segregation is the highest of any metropolitan area in
5 the country for schools. And the typical black student in
6 metropolitan Detroit is in a ninety-three percent minority
7 school. It's the most segregated urban community we have in
8 educational terms in the country.
9 The intense segregation is kind of a measure of
10 really almost complete isolation because many of those schools
11 who are nearly almost one hundred percent minority is almost
12 like the school that Erika talked about where there are no
13 students of other races, and there's no way for students to
14 understand what students of other races experience until they
15 go take a field trip or something like that as she described
16 in her concert competition.
17 My children went to public school in Chicago, and
18 they had a very similar experience to going to the suburbs and
19 seeing an incredibly shocking difference of a city in every
20 dimension of educational opportunity.
21 These are extremely isolated educational experiences
22 in our society where only one fifth of the children are black,
23 they have no contact with five fifths of society in growing
24 up.
25 So each of these tell you something -- it's just
92
1 another way of looking at the same phenomenon.
2 Q What is the educational consequences of that kind of
3 segregation?
4 A Well, there are many educational consequences because
5 basically the schools that say separate but equal is the most
6 extensive social experiment in the United States history.
7 We've tried it in thousands of places for many generations. It
8 never worked anywhere as far as I can tell. Nobody's been able
9 to me a comparable example. There never was a separate but
10 equal school system. That's because of many things. It's
11 because the poverty levels in segregated schools are much
12 higher. Almost the only intensely improvishered schools that
13 we have in the metropolitan areas are for black and Latino
14 children. They are also because there are many fewer minorities
15 in teacher training. There are many fewer teachers who choose
16 to go work in schools of this sort. Most teachers who start in
17 schools that are segregated leave faster. The curriculum that
18 is offered is more limited. The probability that the teacher
19 will be trained in their field is much more limited. The level
20 of competition is less. The respect for the institution on the
21 outside world is less. The connections to colleges are less.
22 There are more children with health problems because minority
23 children are much more likely to live in rental than ownership
24 housing. The population is much more unstable. Many
25 segregated schools have a vast turnover of students every year
93
1 and there's tremendous educational instability as far as
2 students go and faculty go. It's a different world in every
3 respect. You heard some illustrations of that. But basically
4 we are not a society that's learned how to run separate but
5 equal schools. We run separate schools that are always
6 systematically unequal. And basically if you -- sometimes when
7 I was doing research on this issue in Chicago a suburban
8 teacher would call me and say, you know, we've read your study,
9 we decided to actually go in and see what the same exact class
10 looked in a counter-part school in Chicago. And they would
11 come back and everyone would just be stunned. The kids didn't
12 have books. They were only half way through the subject. The
13 teacher didn't know the subject. There were no facilities.
14 And the whole level of competition, expectation was so
15 different that it was like a different planet, a different
16 society.
17 MR. PURDY: May it please the Court, we are -- this
18 is, I believe an appropriate time, may I approach the podium?
19 THE COURT: Of course.
20 MR. PURDY: We are not taking issue with all of the
21 subjects that Professor Orfield is talking about. What he is
22 addressing are tremendous issues that this country faces, that
23 this society faces, that we all face involving educational
24 policies starting from the very earliest ages and rising all
25 the way up until the kids get to the point where they are
94
1 applying to the University of Michigan and ultimately to the
2 University of Michigan Law School.
3 His testimony, we're not contesting that he is an
4 expert in these areas. He quite clearly is an expert and has
5 written profusely on the areas of segregation and
6 re-segregation, and all of the problems that deal with that.
7 And we're not here to dispute that, or argue with him, and
8 indeed we would join with him in many of the ways to correct
9 all of the problems that we -- that everybody deals with
10 daily. But these subjects have nothing to do with the
11 questions that the Court is trying in this limited procedure.
12 THE COURT: Please.
13 MR. PURDY: Your Honor, for that reason we would just
14 ask that the Court limit the testimony as we go down the road
15 to those subjects that the Court had set down for trial.
16 Once again, we're not contesting that -- we will not put on a
17 witness or take any issue with the types of numbers that
18 Professor Orfield is going to talk about in terms of various
19 school systems. Those are all problems that certainly be
20 addressed, but they're not a subject of the issues before this
21 Court. For that reason we would ask the Court to limit his
22 testimony to those areas that the Court deems appropriate and
23 relevant to the limited issues the Court has set down for
24 trial.
25 THE COURT: Okay, as I indicated before when Mr.
95
1 Washington spoke, in terms of relevance I guess, relevance is
2 a relevant term, but I think that we will listen to it. I
3 think all that I can learn and glean and be educated about and
4 the record can learn, glean and be educated about is
5 important. As I say I probably didn't mean to trigger by my
6 statement at the conclusion of --I forgot Erika's last name --
7 MS. MASSIE: Dowdell.
8 THE COURT: Thank you. Everyone was calling her
9 Erika. Anything other than the fact that I have promised the
10 Intervenors in this matter that I would go into it, listen to
11 what they had to say. That's why I limited the time so that
12 we could do it within a reasonable time frame. I understand
13 where they're coming from, and will allow them to proceed over
14 the objection.
15 MS. MASSIE: Thank you, Judge. In that case, I'm
16 going to wait until some later point to respond to Mr. Purdy's
17 --
18 THE COURT: You may respond but I'm not sure that --
19 excuse me one second. I am not sure that you need to respond.
20 I think it was more of a statement. You may respond whenever
21 you care to, I have no problems with that, but as I say it was
22 more of a statement than --
23 MS. MASSIE: They say that they join us in decrying
24 the levels of segregation and equality that Professor Orfield
25 s talking about, and it's exactly what they would bring to
96
1 higher education, into the University of Michigan Law School.
2 THE COURT: I understand your argument.
3 MR. PURDY: I hope it's clear, your Honor, that it's
4 not at all --
5 THE COURT: I understand.
6 MS. MASSIE: If necessary we can get into it further
7 at some other point. I hope it won't be.
8 THE COURT: I don't think we're going to have to. As
9 I indicated to you and to Mr. Washington and to everyone that
10 we're going to proceed and learn everything we can, and try to
11 leave no stone unturned within the frame work of what -- the
12 time we have and everything else. Let's move on.
13 MS. MASSIE: Thank you, Judge.
14 George, could you put up Proposed 195, please.
15 BY MS. MASSIE:
16 Q Do you recall this table from your report?
17 A Yes, I do.
18 Q And that if I understand correctly you were just
19 testifying about the level of segregation in urban areas.
20 A Yes, that's correct. This is just a table to show the
21 enrollment of the largest central cities in the United States
22 -- largest central city school systems in 1996-97.
23 Q As far Detroit goes, it shows that there's a
24 hundred and eighty-seven thousand and five hundred and ninety
25 students of whom only 5.2 percent are white and 90.1 percent
97
1 were African-American. 2.8 percent Latino, and one percent
2 were Asian.
3 So this is one of the great centers of
4 African-American African-American population in the midwest,
5 and certainly dominant African-American population
6 distribution here in. Michigan, and it's very, very high.
7 Q And one of the great centers of school segregation.
8 A It is indeed the greatest center of school segregation in
9 metropolitan Detroit.
10 Q How does educational segregation relate to housing
11 segregation?
12 A It's directly related to housing segregation unless there
13 is some kind of de-segregation plan that overcomes the housing
14 segregation. And Detroit has -- is one of the most intensely
15 segregated housing markets in the United States. It's one of
16 those that have been designated as hyper-segregation in our
17 research. Doug Massey and Nancy Denton and other scholars who
18 have looked at housing segregation across the country. So
19 there's intense housing segregation, and very strong boundaries
20 that separate schools from different racial groups because even
21 the working class suburbs of Detroit have had tremendous
22 residential segregation.
23 Q Is there to your knowledge, has there ever been school
24 integration without conscious policy choices and initiatives?
25 A In urban communities with residential segregation school
98
1 integration requires desegregation plans and initiatives. And
2 when they are ended, school segregation increases.
3 Q And is it on the increase now?
4 A It is. It's been on the increase now for almost a
5 decade, and our study will show it's continuing.
6 Q And that's because of the coming to an end the
7 determination of conscious policy initiatives?
8 A That's correct, and also the expansion of residential
9 segregation. I want to catch up to you with the exhibits here.
10 Here is Proposed 197. You were speaking, Professor Orfield
11 before the objection was made about the relationship between
12 segregation by race and poverty in the schooling.
13 A Yes.
14 Q If you could tell us a little bit about this chart, and
15 what we should draw from it. Well, we looked at all of the
16 schools in the United States in which data was reported to the
17 federal government, many tens of thousands of schools. And we
18 looked at schools that had different percentages of
19 African-American and Latino students, and different percentages
20 of poverty to see whether or not these two things were related
21 fairly strongly.
22 And what we saw is that if you look at the schools
23 that had zero to ten percent black and Latino students, which
24 are almost half the schools in the United States at this
25 period, only 7.8 percent of those -- 7.7 percent of those
99
1 schools had more than half poor kids in them, only one out of
2 fourteen schools.
3 If you look at the schools who are ninety to one
4 hundred percent black and Latino and those are the schools
5 that have about three quarters of black students in Michigan,
6 for example, those schools have eighty-seven percent
7 concentration of poverty. In other words, intensely segregated
8 minority schools have very high levels of poverty, and those
9 very high levels of poverty are linked in many forms of
10 educational and equality. And poor white children are much
11 less likely to end up in impoverished schools than poor
12 minority children because they're just not that concentrated
13 residentially.
14 Q What's the measure of poverty here?
15 A Well, this is the measure of Free Lunch. It's the only
16 data that exists on poverty in schools at the national level.
17 Free Lunch, of course, is set by federal statute and
18 eligibility. It's not the same as the census poverty
19 standards. It's a little higher. It's very low income.
20 Q I'm sorry, it's a little higher meaning that you can have
21 a little more income --
22 A A little more income than the poverty standard, but these
23 are families whose income level is not adequate to provide --
24 they don't have enough money to pay for lunch for their
25 children.
100
1 Q Does this chart mean that going to a school that's
2 largely black and Latino means going to a poor school? Does it
3 mean that poor and black are co-extensive?
4 A It means that if you go to a school that's overwhelming
5 black and Latino, nine times out ten it's going to have
6 concentrated poverty. If you go to a school that's overwhelming
7 white, hardly ever, once out of fourteen times.
8 Now, there's many kinds of schools that aren't in
9 either of these categories. But at these extremes there's a
10 strong relationship, a serving relationship.
11 And when we looked at metropolitan Chicago we looked
12 at eighteen hundred elementary schools, and we found none that
13 were white with heavy concentrated poverty, and virtually all
14 with the African-American, in densely segregated schools.
15 Q Here's what I'm wondering, Professor Orfield, if the
16 level of correlation is this high in the context of the
17 affirmative action debate, why couldn't we just substitute
18 poverty measures for race in admissions-decision making?
19 A Well, there are several reasons. This has been tried in
20 a number of places and we have a lot of evidence about what
21 actually happened. But at the extreme, these relationships are
22 very dramatic, but you can still see that there are white
23 schools that are predominantly poor. And there are small
24 numbers of non-white children in these segregated black and
25 Latino schools. And as you -- and inbetween there are many
101
1 other sorts of schools where these patterns are less dramatic.
2 So the correlation of co-efficient between poverty and black
3 and Latinos percentage is about twenty-six. That means there's
4 a strong relationship, but it's far from perfect. And when you
5 do -- particularly when you use poverty plus test scores or
6 something like that, you don't get the results you think at
7 all. You don't get the same kind of access from minority
8 students because there are a lot of temporarily poor white
9 students and particularly immigrant students whose parents are
10 at a very high educational level, who are in these
11 improverished schools for at least a short term in their
12 educational experience, and they will tend to get the advantage
13 if you concentrate on poverty.
14 So poverty and race aren't the same; they're
15 different, although, they effect the same schools. You can't
16 solve one by the other. You run into all kinds of
17 complexities in the implement of this process. And you get all
18 kinds of benefits that you're not looking for. We're not
19 looking for policy that gives a special benefit to immigrants
20 who don't have any history of discrimination here in this
21 country. We're looking for policy that addresses the
22 inequalities that are reflected in segregation statistics.
23 Q If I understand your report there's a growing tendency --
24 there's a growing number of quite segregated much more middle
25 class suburban schools.
102
1 A Yes, in the last several years are showing a pretty
2 dramatic extension of residential and school segregation into
3 the suburbs of metro areas. There's a huge increase in black
4 and Latino middleclass migration to the suburbs. But
5 unfortunately, it's pretty highly segregated.
6 We released the study in metropolitan Boston that
7 showed that most of those families into seven out of a hundred
8 and twenty-six suburban towns and none of them are the ones
9 with competitive schools. Many are the one with the least
10 adequately funded schools and the highest dropout rate. So
11 it's suburban but it's suburban of a different color and a
12 different school, and it does not provide the same kind of
13 access.
14 Q How do the social backgrounds of those middleclass Latino
15 and black students you were describing differ from those who
16 bear white counter-parts in white suburbs?
17 A This is one of the issues that the College Board is
18 looking at in a study right now of the High Unequal Education
19 Attainment of Middleclass Children in this country. There are
20 -- many suburban communities around the country are
21 collaborating because we have the disturbing differences
22 between black so-called middle class achievement and white
23 middleclass achievement.
24 When you look under this data there's many
25 differences between middle class black and white in this
103
1 country on an average. Middleclass black typically do not
2 come from a family with the same kind of educational history.
3 They don't come from a family the same kind of financial
4 resources. In this country, the average black family has only
5 about one tenth the wealth of the average white family, for
6 example. The wealth gaps are much bigger than the income gaps.
7 They're much less likely to be homeowners. They're much less
8 likely to live in a stable community. They're much more likely
9 to have a single parent. Most middleclass families have a
10 network of middleclass relatives that support them through
11 trouble. Most middleclass black families and Latino families
12 have work with low income, and families that they have to
13 support through trouble. Most middleclass black and Latino
14 areas are near poor black and Latino areas. That's why the
15 housing market works. So those kids are exposed to many more
16 negative peer group influences.
17 There's a wonderful set of studies done by a
18 psychologist at Northwestern who grew up in a community like
19 this, who wrote this book called "Black Picket Fences," who
20 explains that being middleclass is not the same across racial
21 lines. Families are less middleclass. They have less
22 middleclass network, resources, respect, connections. Their
23 middleclass is much more vulnerable. Their ability to isolate
24 their children from lower class and negative influences is
25 much less. And as you noticed, for example, in testimony we
104
1 just heard, Erika was telling us how she had to cut herself
2 off from her community to make it. This is the experience of
3 many of our middleclass students at Harvard and other
4 universities. They have been in situations that have so many
5 negative influences that they or their parents had to decide
6 to cut themselves off almost completely from their setting in
7 order to have a chance to make it in the educational process.
8 There's a difference. There's a very dramatic
9 difference even if you are so-called middleclass. And there's
10 a danger of not remaining middleclass and being exposed to
11 non-middle influences. It's much greater for minority
12 students.
13 There's also preferential treatment in schools.
14 I've had professional colleagues at all the great universities
15 that I've been at who are African-American or Latino and
16 almost always they tell me that one or more of their children
17 have been placed in a lower track when they first go to their
18 school. And they are professional Ph.D. from the greater
19 universities in the country. And they go and they raise hell
20 with the principal and they get the kid put back in the right
21 track, but they are presumptively put in the wrong track,
22 given the wrong advice because of their skin color. They are
23 children of the most educated people in the United States, but
24 they are seen as black or Latino, and they are assumed to be
25 better off in a lower track course until somebody tells them
105
1 that their parents are Harvard, and then the school says, I'm
2 so sorry, Doctor, we didn't know. We thought this child was
3 black.
4 Q How about -- that's in some of the more intergraded
5 schools, how about in the more segregated suburban middleclass
6 black and Latinos schools is the quality of those schools the
7 same as the quality of white suburban schools?
8 A No.
9 Q Tell us why.
10 A Well, basically what you have happened when you go
11 through racial transition typically --
12 THE COURT: Hold on one second. Stay exactly where
13 you are.
14 (Short Pause in Proceedings.)
15 BY MS. MASSIE:
16 Q Professor Orfield, you were saying I think, you were
17 starting to say how the schools that have segregated Latinos
18 and black, more middleclass suburbs are different from those
19 than white suburbs.
20 A Yes.
21 Q If you could develop that please?
22 A As the housing works typically after a community goes
23 through racial change, it then gets exposed to lower income
24 families pretty rapidly so oftentimes if you look at a typical
25 pattern in a community that's on the frontier of racial change
106
1 the initial minority families that move into the communities
2 will be middleclass people who are seeking middleclass schools
3 and often integration. But after they come in, oftentimes the
4 housing is no longer shown to whites, the housing market
5 shrinks, and within a few years they begin to break it up into
6 rental housing and show it to poor people, and it begins to be
7 targeted with Section Aid and other kinds subsidized housing.
8 And you get more families who are connected to basically
9 non-middleclass backgrounds.
10 And those schools, even middleclass schools that
11 serve minority families typically have substantially higher
12 numbers of low income children. Many of the teachers that are
13 in suburban schools are completely unprepared to teach
14 minority kids. They have no experience or comfort, and they
15 have lots of stereotypes. This goes to the tracking and
16 placement and so forth and they often leave schools when they
17 go through racial transition.
18 Minority schools have a much greater difficulty
19 recruiting teachers than white schools do partly because the
20 vast majority of the teachers who are trained are not trained
21 in how to work in a diversed setting and are white themselves.
22 What you basically have happened is a downgrading of
23 the curriculum that takes place. You go through lots of
24 teachers and through the lack of a critical mass of students
25 who are prepared to take certain kinds of courses.
107
1 You also have a different kind of structure of a
2 group that takes place in the classes. Gangs tend to
3 penetrate in neighborhoods a few years after they go through
4 racial change which has a very, very negative effect on high
5 schools. There's kind of a systematic process of detachment
6 from mainstream and downgrading of the educational
7 opportunities that takes place after racial transition. And
8 you can see it right now in city-after-city,
9 community-after-community. And people will describe it. If
10 you go into any of those communities they'll describe what
11 happened and when. But the net process is that there's a
12 narrowing of the educational opportunities that follow a
13 racial transition even when it starts out as the middleclass
14 transition in a middleclass community. And middleclass
15 minority families are easily troubled by this and often leads
16 them to make a concession or move to try to get away from it.
17 Q What's the fundamental cause of the dynamics that you're
18 describing?
19 A Well, there's an interaction between residential
20 segregation, school segregation, belief in the society, special
21 structure to perpetuate inequality. There's a whole system of
22 ghetto station and inequality that has its roots in the earl
23 20th century, never been broken in our largest metropolitan
24 areas. That's the patterns that have really not changed
25 significantly in one and a half century, in these large
108
1 industrial centers of hyper-segregation. They are less extreme
2 in some places in the west and some multi-racial metropolitan
3 areas.
4 Q Could I summarize those causes that you just said, they
5 apply safely with the word racism?
6 A I usually don't use that word to define it. It doesn't
7 advance the debate very much. But I think -- what I like to
8 talk about is discrete elements of racial inequality. There is
9 a system of residential segregation. And there's lots of
10 innocent victims in it. Both the whites would like to remain
11 in an intergraded place, are not offered the option because of
12 the way -- no pure whites are shown into the community. The
13 minorities who would like to live in a intergraded place have
14 almost no opportunity because of the extreme residential
15 segregation and so forth. And there's lots of innocent
16 bystanders who contribute to this process without being
17 explicitly racist just by having belief and fear that they wish
18 weren't true, and that they fear are true.
19 There are a lot of other institutions that
20 perpetuate just by not doing anything to change it. In other
21 words, it's a deeply rooted set of social structure and
22 practices and beliefs that have a very strong tendency to
23 perpetuate and spread itself unless there is explicit
24 intervention to stop it or to create a different option, and
25 those are difficult to do. And they can only be done when you
109
1 decide to do them consciously.
2 Q How long as we as a nation been engaged in policy
3 measures like that to intervene in those structures, and in
4 those dynamics of racial inequality.
5 A Well, in terms of school segregation in my judgment we
6 intervened primarily in the period 1965 and 1973, and mostly in
7 the South. We really never did desegregate our big metropolitan
8 areas in the North. And we have abandoned making any
9 significant effort to do that by the middle 1970s an early
10 1980s. And now in 1990s we are dissolving what we have a
11 desegregation plan in much of the country. Even where we had a
12 plan or a consent decree or something -- like you had the
13 Milliken case here in Detroit, it was dissolved. In our book,
14 "Dismantling Desegregation" we actually at the effects of that
15 and found it was dissolved without achieving any of its
16 educational goals.
17 THE COURT: That was the Detroit school system?
18 THE WITNESS: No, it in Grand Rapids. The Milliken
19 II case, it was decided educational remedies which we, in our
20 judgment, were never implemented significantly to make a
21 difference for kids in Detroit.
22 THE COURT: So it was both resolved as well as
23 implementation.
24 THE WITNESS: Yes.
25 BY MS. MASSIE:
110
1 Q Touching just briefly on something that we'll come back
2 to later which is the question of integration of higher
3 educational institutions, how long have we been giving that a
4 try?
5 A There never has been a very large push for integration of
6 higher education in public policy terms. No state university in
7 the United States, to the best of my knowledge has ever been
8 faced with fund cutoffs for non-enforcement of discrimination
9 requirements by the federal government. Many hundreds of
10 school districts face that.
11 The standards that were issued by the Department of
12 Health, Education and Welfare in the 1970s that effected the
13 nineteen states that had de-jury segregation of the higher
14 education institution were never enforced, and they were
15 substantially abandoned by them in the middle of the 1980s.
16 I think we've had very little effort to integrate
17 our higher education institutions from public policy. Most of
18 it has come from inside the universities, from their own
19 voluntary efforts, and most of that come from faculty and
20 administrators in most universities who decided that they
21 needed to do it for educational purposes and for the purposes
22 of making admissions in the university.
23 Q And that's -- something like that is what's involved
24 here, is that your understanding?
25 A That's my understanding, yes.
111
1 Q And those programs, affirmative action programs, how long
2 have they been around?
3 A Well, they've been around in significant levels since the
4 late 1960s.
5 Q When we've tried -- it's never been easy -- but when
6 we've tried, we've made forward progress; is that right?
7 A That's correct.
8 MS. MASSIE: I have two quick things I would like to
9 touch on and then I think it might be a good point to break
10 for lunch.
11 THE COURT: Great.
12 BY MS. MASSIE:
13 Q The first thing I want to ask you and I don't want to
14 spend too much on this, but can you say something about the
15 relationship of state and federal policies of the public sector
16 in housing segregation and discrimination?
17 A Yes, there's a very pervasive involvement of federal
18 policy and significant involvement of local policy particularly
19 in housing segregation. Of course, particularly -- and this
20 deeply affected our older cities and our older metropolitan
21 areas because the federal government itself permitted and
22 sometimes required segregation of itself up through the early
23 suburbanization process following World War II through --
24 through underwriting standards, their the FHA policy, through
25 its Veterans administration policy all of which favored
112
1 segregated development of suburbia, and denied funding for
2 inter-city communities where most minority families lived so
3 that white veterans got benefits to allow them to move to the
4 suburbs and blacks and Latinos didn't since there was no
5 housing available to them in the segregated housing markets in
6 the areas where the Veterans' Administration, or Federal
7 Housing Administration would issue mortgages.
8 Public housing which served a very a substantial
9 fraction of minority families, black families in particularly
10 and a very, very small fraction of white families,
11 overwhelmingly go to the segregated neighborhood and has been
12 segregated since its inception. Virtually every city that's
13 been sued has been found guilty of intentional segregation of
14 its public housing. And that was a normal practice and it was
15 accepted for a very long time. And it built the worse kind of
16 school segregation, we find most extremely unequal schools in
17 the area of segregated public housing.
18 Detroit, of course, is the site of the most
19 disastrous housing policy of the 1970s, where you had the 235
20 cancel the home ownerships programs -- for the whole country
21 were really ruined here in Detroit by the incredible views
22 that took place that led to things this block that Erika lived
23 on with nobody living there. Basically the federal government
24 underwrote sales in a very segregated pattern of very inferior
25 housing. HUD became the principal homeowner in many areas of
113
1 Detroit.
2 Now that same program allowed white families to
3 leave the city, and to go into the suburbs and become
4 homeowners. There the way it was administered was almost
5 totally segregated. The U. S. Civil Rights Commission did a
6 major study of it. There were a number of books that were
7 published that.
8 The Nixon Administration shut down that entire
9 program largely because of the catastrophe that took place in
10 Detroit.
11 There was also -- Detroit was very important in the
12 ending of the effort to integrate suburban housing because of
13 the violent resistence that took place in Warren, Michigan to
14 subsidized housing in the early 1970s. That led to the
15 abandonment and actually with -- strongly related to the
16 firing of Secretary George Romney as Secretary HUD, who was
17 trying to provide housing opportunities in the Detroit suburb
18 community.
19 In other words the reasons why Detroit is so highly
20 segregated now are very, very dramatically related to Federal
21 Housing Policy that goes over a number of decades, and really
22 never has been corrected.
23 Q So if I understand what you're saying, tying back into
24 what you were saying some before, it's the policy choices that
25 we make and enforce that determine levels of segregation and
114
1 integration in housing and schooling and so on.
2 A Policy choices are very important. They're not the total
3 cause, of course, but they certainly do direct and shape a lot
4 these developments.
5 Q And without making policy choices against segregation
6 we've never made progress against it.
7 A It's very, very deeply engrained in many expectations and
8 processes in our society now. So if we don't work against it,
9 it spreads.
10 Q I would like you to turn very, very quickly to Exhibit --
11 I think it's B.
12 THE COURT: Let me ask a question about the housing
13 program. Was it 135?
14 THE WITNESS: 235.
15 THE COURT: 235. Give me the history a little bit,
16 one more time.
17 THE WITNESS: Well, it was created by the 1968
18 Housing Act which was the biggest housing act in American
19 History.
20
21 THE COURT: What was the intended legislative
22 purpose?
23 THE WITNESS: The purpose of 235 was to permit low
24 income families to become owners. And the way it was
25 administered, typically the white families who got the 235
115
1 Program, got to buy low-cost housing. Many of them left
2 intergraded areas in the cities.
3 The black families who got it almost ended up in a
4 segregated pattern in the city. And they often were sold --
5 they were families without any home ownership experience. And
6 they often came directly out of a house project and they were
7 sold houses that was cosmetically repaired but had terrible
8 flaws. And here in Detroit there was a huge appraisal scandal.
9 So there were many, many realtors who became appraisers and
10 gave artificial appraisals to these homes that were
11 nightmarishly inadequate. A low-income black family would
12 move into them. A lot of families would make -- huge profits
13 were made by realtors that sold these houses. And families
14 would move in, and the first thing that broke they couldn't
15 fix because they didn't have any money. And then HUD would
16 repossess the house. And sometimes HUD would have all the
17 houses on a block. There was no market for them because the
18 neighborhood was deteriorated. So eventually HUD had to
19 bulldoze them, and that created these farm lands in the middle
20 of the city.
21 THE COURT: Thank you.
22 Do you want to break here?
23 MS. MASSIE: I guess have one very quick question.
24 BY MS. MASSIE:
25 Q On the Exhibit B which is entitled "Diversity and Legal
116
1 Education: Student Experiences in Leading Law Schools." This
2 is a study you did with the Civil Rights Project?
3 A No, it wasn't done on the Civil Rights Project.
4 Q Oh, I'm sorry.
5 A Dean Whitla, my co-author, did this through his staff.
6 And I worked with him as an author. We published it through
7 our project.
8 Q It's a survey of law students at highly ranked law
9 schools and their views on the level of diversity and
10 integration in their classrooms and other experiences.
11 A That's correct.
12 Q The reason I raise is it came up yesterday in testimony
13 about how much experience students at law schools have
14 generally had with members of other races.
15 A Yes.
16 Q And if I direct you to I believe it's Table Four. It's
17 Table Two and Three which are found page nine and twenty-eight.
18 A Yes.
19 Q And some of the data is narratively summarized in that
20 final paragraph down at the bottom of the page. And this data
21 shows that around half of the law students had absolutely no or
22 very little contact with people of different races before law
23 school; is that right?
24 A Yes.
25 MS. MASSIE: That's all I have on this.
117
1 A I'd like to add on this. The link with this school
2 segregation thing, one of the things we found from this study
3 was that there virtually no minority students in either
4 Michigan Law School or Harvard School who came from segregated
5 backgrounds. They had to have intergraded experience before
6 they got there to get there, as best we could see.
7 Q Where a lot of the white students had led completely
8 segregated lives?
9 A That's right.
10 MS. MASSIE: If we could break now, that would be
11 great.
12 THE COURT: We'll break until 1:35.
13 (Court recessed, 12:15 p.m.)
14
15
16
17
18
19
20
21
22
23
24
25
118
1 (Court back in session.)
2 MS. MASSIE: Judge, we are going to
3 be proposing an Exhibit 200, it's on its way over.
4 Just to give you the info on what it is, we realized
5 none of our testing experts arrived, and we realized
6 that the chart that we had with the different curves
7 of LSAT scores used percentages of white, black,
8 Native Americans and so forth applicants, when we
9 wanted, in fact, both the chart with percentages and
10 also a chart with absolute numbers.
11 So, we have corrected the title of
12 the chart you guys already have and created a new
13 chart which reflects absolute numbers, which I will
14 be handing out at break shortly.
15 THE COURT: Okay. Let us know which
16 one it is and we'll just replace it..
17 MS. MASSIE: Just so it's clear,
18 proposed Exhibit 199 will be exactly the same except
19 its title is now explicit about the fact that it
20 reflects percentages of students, rather than
21 absolute numbers.
22 And Proposed 200 will reflect
23 absolute numbers. And if I can approach.
24 THE COURT: Yes, because I don't have
25 either one of those.
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119
1 MS. MASSIE: You should have an
2 incorrect and now a corrected one.
3 THE COURT: Okay. Which is which
4 now? The first one is 199, okay.
5 MS. MASSIE: And you already had a
6 199. And the only thing that's different about this
7 199 is the title is longer and more precise.
8 THE COURT: Where did I have a 199,
9 because I have not seen a 199.
10 MS. MASSIE: From this morning you
11 had a 199.
12 THE COURT: He can throw the old ones
13 away.
14 MS. MASSIE: Throw away the earlier
15 199 only, right.
16 THE COURT: Okay, got it.
17 BY MS. MASSIE:
18 Q. Professor Orfield, when we broke you were talking
19 about how black and Latino students in law school
20 all had had substantial interracial contact in
21 contradistinction and contrast with their white
22 classmates.
23 What does that mean, why is that?
24 A. Well, if you look at the report that we did from the
25 Michigan and Harvard service, it basically shows
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1 that for African Americans almost all of them had
2 had significant interracial contact either
3 residentially or in school or both. And the same
4 was true for Hispanics, but half of whites had not.
5 I think the reason is that there's
6 almost never an adequate preparation given for all
7 the skills you need to succeed in a place like
8 competitive law school in the segregated educational
9 environment.
10 And basically for minority students
11 who go to elite white institutions in this society,
12 they have to make a transition to a middle and upper
13 class institution that's overwhelmingly white
14 simultaneously.
15 So, they have to make a social class
16 and a racial transition almost instantly and
17 fluently, and to be able to perform very highly in
18 that new setting very fast. Because there's very
19 few support systems in elite colleges and
20 universities or of professional schools.
21 And so if they don't have that
22 preparation on, which is usually both ability to
23 understand and interpret that situation and the
24 academic skills that you need to make it, they have
25 to be really remarkable, or they don't have a
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1 reasonable chance.
2 Also students who are in segregated
3 background typically don't even hear about a lot of
4 the options and are not recruited and are not in
5 networks where they know people have been to those
6 institutions, don't have all the kinds of contacts
7 and networks that lead you into different kinds of
8 choices in your life.
9 I've had a good many African
10 American, Latino undergraduate students and very,
11 very talented ones who never thought about a
12 graduate school until I talked to them about it.
13 Nobody had ever mentioned it to them
14 in their lives even though they have been in a great
15 university. And no one in their family ever had
16 contact with that possibility.
17 So, you have to be in a place where
18 you hear about the possibilities, and where there
19 are real connections and where you can get what you
20 need.
21 And what you need to survive is both
22 academic and an understanding of the setting that
23 you're going into. And those are very, very hard to
24 get in isolated situations.
25 Q. In that our society doesn't provide the majority
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1 black, majority Latino, majority minority
2 institutions with the resources they would need to
3 properly train people for that kind of opportunity?
4 MR. PURDY: I am just going to object
5 on foundation.
6 THE COURT: Overruled.
7 A. Well, there's different kinds of resources.
8 Specifically those institutions lack tangible
9 resources like money and books and libraries and
10 other things that we heard discussed this morning.
11 But then there's other things that
12 are very important, which is learning how to
13 function across these racial and class lines. But
14 you really can't provide adequately in a segregated
15 setting. Because the way you learn how to do that
16 is by doing it, and becoming familiar with it.
17 And if you don't learn all of those
18 cues and ways that things operate and so forth, you
19 have a lot of difficulties when you get into
20 different kinds of institutions.
21 Any of us who are white can just
22 imagine ourselves trying to function in an all black
23 inner city school, where we didn't know anything,
24 what the expectations were, the customs, or what the
25 underlined social relationships were, anything else.
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1 There is all kinds of knowledge that
2 you get from schools. Also you tend to have the
3 teachers who have connections with great
4 universities, go into the schools where the parents
5 of the students are from those same places.
6 So there's a very self reinforcing
7 place. I haven't done the study here, but we did in
8 the metropolitan Chicago where we found the
9 University of Illinois teachers taught in the better
10 suburbs.
11 The teachers from other teacher
12 training institutions that were not as competitive,
13 taught in less competitive places. And the teachers
14 that taught in the inner city did not tend to come
15 from very strong colleges and universities.
16 And they didn't have the connections,
17 so they didn't suggest their students went into
18 those networks. And they didn't know anybody to
19 call to explain if a student had talent that didn't
20 show up on his records, or how would he get. Like
21 the suburban school would have, for example.
22 So, there's all kinds of things that
23 exist in your typical middle class and upper middle
24 class school both in terms of resources,
25 connections, levels of competition, knowledge of
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1 options and so forth. They just don't exist in most
2 segregated schools.
3 Most of the students who come out of
4 those schools who really make it are incredibly self
5 driven, or they know somebody who is mentoring them
6 very, very strongly. Or they would never make a
7 connection like that.
8 Q. Let's change the subject a little bit. We've been
9 speaking mostly about black students up to now?
10 A. Right.
11 Q. How do these same kinds of questions come out when
12 we're looking at the Latino student population?
13 A. I think that's a really good question, since the
14 Latino student population is just exploding in the
15 country. It's gone up by orders of magnitudes since
16 the '60s.
17 Latino students are even more
18 segregated then black students in all of the
19 United States today, and they have been throughout
20 the last several years.
21 And they tend to be isolated in big
22 cities and metro areas of relatively small number of
23 states. The nearest one here is metropolitan
24 Chicago, of course.
25 And they tend to be in very inferior
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1 schools, and they also tend to have to deal with
2 additional problem, particularly for recent
3 immigrants of language, and linguistic isolation in
4 the residential communities. As well as it's an
5 isolation by race and class. Those are really,
6 really hard problems.
7 In our college admissions processes,
8 we don't consider fluency of two languages to be an
9 asset, we only measure English ability.
10 And any of us who would try to get
11 admitted to competitive schools in Spain would
12 probably not do too well, no matter how intelligent
13 we were.
14 So, you have to think about this as
15 another very large great disadvantaged population.
16 Latino students are much more likely not even to
17 make it through high school, and they're less likely
18 to go to college than the black students, if they do
19 graduate from high school.
20 And they're very often very poorly
21 prepared for making the kind of transition that we
22 talked about between two different worlds.
23 Q. Do we have enough data on the Native Americans
24 student population to make similar kinds of analysis
25
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1 and judgments?
2 A. The Native American student population is very
3 poorly represented. It has a fairly high drop out
4 rate, and it has not been studied very much and
5 doesn't appear in large enough numbers in most of
6 our national surveys to describe in much detail.
7 And, of course, represents hundreds
8 of different kinds of communities within the Native
9 American population. But their general problems are
10 similar.
11 Q. There is I notice that at one point in your report,
12 there is a high correlation of going to a majority
13 Native American school, and the level of poverty of
14 the students at this school?
15 A. That's right.
16 Q. So there's that similarity that can be empirically
17 shown?
18 A. Yes. I did work when I was in college at
19 reservations in northern Minnesota and they were
20 desperately isolated. Particularly people in tribal
21 communities are experiencing extremely high poverty
22 concentrations. And very inadequate schools, lots
23 of prejudice, isolation.
24 Q. Nationally, what percentage of black students in K
25 through 12 attend segregated schools?
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1 A. More than two-thirds.
2 Q. And nationally what percentage of Latino students in
3 K through 12 attend segregated schools?
4 A. About 70 percent.
5 Q. What are the implications of what you've testified
6 to about educational segregation and inner quality?
7 Well, two things, we'll take them one at a time.
8 First, access to college, and second
9 achievement in college?
10 A. Well, if you think about access to college, you're
11 thinking about a number of different things. First
12 of all, you're thinking about whether you acquired
13 the precollegiate skills that you absolutely have to
14 have to survive in college.
15 Which are basically skills about
16 research, writing analysis, basic mathematical
17 computational skills and so forth. And increasingly
18 fairly high level of math preparation.
19 Those skills are very hard to acquire
20 in a lot of segregated schools, and they are fairly
21 normal in middle class schools. There's a default
22 expectation that students in middle class, upper
23 class suburbs will receive those and that they will
24 be taught by people who actually know the subject,
25 and they will be at a level that's appropriate
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1 preparation for college.
2 That does not exist in a lot of
3 central segregated schools. There's not the level
4 of competition, there's not the level of training by
5 the teachers. And the classes are not operated at a
6 level that actually perhaps you to meet the minimum
7 requirements of the collegiate environment.
8 When I was a faculty member at the
9 University of Chicago, we would routinely--my
10 Admissions Office would routinely reject
11 valedictorians from Chicago high school, most
12 Chicago high schools because of the experience that
13 they could not survive for a single quarter on our
14 campus.
15 Even if they were the very, very best
16 student in their school, there was no way in the
17 world they could have acquired the skills, you need
18 to be a minimally adequate student in our college.
19 No matter how intelligent they were as a person,
20 because preparation did not exist in their
21 community.
22 So we would--I didn't reject them,
23 but our Admissions Office would reject them all the
24 time. I once had a student who was the best student
25 in many years in a segregated inner city school in
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1 Washington, D.C. who came to the University of
2 Chicago and she was my advisee.
3 And she had never gotten less than an
4 A plus in her life and she had been leader of every
5 activity, and she could not survive the first
6 semester of our classes. And she had a mental
7 breakdown.
8 And nothing about it was her lack of
9 intelligence ability or an education, it was simply
10 that she was in a completely inadequate preparation.
11 Now, in logical preparation you need
12 to understand what you need to do to get ready for
13 college. We did a survey of several thousand
14 students in Indiana, we found that most students
15 whose parents hadn't been to college really didn't
16 know what courses they needed to take to get ready
17 for college, and they often didn't take them.
18 Even though they planned to inspire
19 to go to college, we found the same thing in senior
20 surveys that were done in Chicago. Many students
21 believed they were ready, when they weren't ready in
22 any way and nobody had ever told them differently.
23 Many students in isolated communities
24 have no way of knowing what they need, and the
25 counselors in big city schools are typically
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1 overwhelmed with all kinds of non-academic
2 counseling. First of all, community problems and
3 reporting requirements and so forth. They have
4 almost no time to work with students.
5 The students when we would survey
6 them would say, they have almost no information
7 about college from their own communities or from
8 their parents, because often times nobody there has
9 been to college. And there is no network.
10 The colleges I've taught and I teach
11 in my graduate seminars on college access issues,
12 classes that included many admissions officers from
13 colleges around the country, or people who have been
14 admissions officers.
15 They routinely report that they do
16 not recruit in most central city high schools at
17 all, because there's nobody there that they could
18 possibly get admitted who could make it on the
19 campus.
20 I have no idea whether that pattern
21 is true here, but it is in much of the country. And
22 the reason they don't recruit isn't because they
23 don't want to, it's that they know by and large that
24 there's very few students there who have been given
25 the tools they need to survive.
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1 And most competitive colleges don't
2 have anything to really helps students who have
3 lacked basic tools. It's a very difficult,
4 difficult requirement at that stage.
5 So, the network isn't there, the
6 knowledge isn't there, the preparation isn't there.
7 And the college doesn't really reach out very
8 effectively into most of these particular kinds of
9 schools.
10 So, if a student gets to a selective
11 college from an institution like that, usually
12 there's an individual mentor or program or something
13 that's identified that student and just grabs them
14 and giving them the skills and motivated them and
15 filled out their forms and done all kind of things
16 that wouldn't normally happen. It almost never
17 happens by accident.
18 There was this study done on four
19 children growing up in Chicago in Woodlawn, a
20 community south of the University of Chicago, that
21 there was an experiment to help these kids in their
22 earliest years in school, it was pretty massive.
23 And 20 years later they tried to see
24 who got to college, and they found that nobody from
25 the whole experiment had gotten to college out of
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1 that community without someone actually reaching out
2 and bringing them to college. Nobody had gotten
3 there by themselves.
4 So, you know, you have--it's not only
5 a lack of a network, it's really just nonexistent
6 connections between many of these communities and
7 what we need, particularly, to get into a
8 competitive college.
9 Q. Let me ask you about a slightly different category
10 of schools, a school that's somewhat more privileged
11 but it's still a segregated school, maybe like
12 Cass Tech or like a segregated suburban school with
13 an overwhelmingly black or Latino population?
14 A. Yes.
15 Q. What are the implications for college, first access,
16 and second achievement GPA for students from schools
17 like that?
18 A. Well, I have a special interest in magnet schools,
19 magnet from out of desegregation plans and I have
20 studied them in Chicago and all other places.
21 Magnet schools give you a chance, but
22 even though it may look like a very elite school
23 inside the city, it really looks like a very average
24 or low average school in suburban terms.
25 So, my own children went to a school
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1 that was a magnet school in Chicago Public Schools
2 which was predominately African American, and had
3 some wonderful teachers and programs in it.
4 And that school was recruited, the
5 colleges do recruit from schools like that pretty
6 intensively. There are students who do make it, but
7 they're not nearly as well prepared as they should
8 be.
9 Basically that school as best I could
10 tell, was equivalent to a lower level of suburban
11 school. That school had the only debate team that
12 was left out of 65 Chicago high schools at that
13 time.
14 When the debate team went off to a
15 suburban school, they would see paid staff person
16 working with them, they would see a library, and
17 they see kids going to debate camp, they see this
18 and that and the other thing. And this school had
19 none of those things there.
20 They had a volunteer, they had no
21 materials, they had no room, they didn't have a
22 media center to support them, they had nothing. And
23 they were the only ones in the city who could even
24 amount a debate team at that point.
25 So you have these inequalities even
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1 in the elite schools. We found that magnet schools
2 really on average offered a lot better set of
3 opportunities and teachers and background and so
4 forth than the non-magnet schools. But they were
5 not competitive with good suburban schools in terms
6 of the offerings. They had a lot of remarkable and
7 talented young people in them though.
8 Q. And would the increasingly common and segregated
9 suburban schools, and when I say segregated I mean
10 in this question mostly Latino and mostly black, is
11 that a comparable situation the way you just
12 described?
13 A. Well, what I see in the segregated suburban schools
14 is the pattern that existed in the city schools a
15 generation earlier. When they're in the stage where
16 there's still a middle class majority, but they're
17 going through economic transition as well as racial
18 transition.
19 Most of those segregated suburban
20 schools really aren't solid, stable middle class
21 schools, and they really do serve communities and
22 transition and on a downward slope.
23 And they don't offer the same
24 preparation or connections, and they are seen by
25 their own staff as deteriorating in many cases. And
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1 they don't have the pizzazz of the city magnet
2 schools.
3 So, they function fairly well for a
4 while, and then they tend to deteriorate in terms of
5 their ability to prepare people for competitive
6 colleges.
7 Q. Would you be surprised if students coming from
8 schools like the ones we've been talking about, end
9 up with lower GPAs than their white counterparts in
10 college?
11 A. No.
12 Q. I'd like to shift gears here and talk about--George,
13 if you could put up Proposed 198.
14 THE COURT: Can I just ask a
15 question. Magnet schools, tell me a little more
16 history.
17 A. Judge, the magnet schools really are a result of the
18 desegregation plan that started in the 1970s
19 primarily, and they started out in the big scale in
20 Cincinnati and Milwaukee.
21 Congress then passed an amendment to
22 the Emergency School Aid Act to provide the funding
23 to create magnet schools around the country. That
24 was part of the segregation plan. And hundreds of
25 them were created.
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1 THE COURT: Tell me what role they
2 play in the desegregation plans?
3 A. In the desegregation plans the problem that the
4 courts faced after the Milliken decision which
5 prevented suburban schools from being included in
6 the desegregation plans, was how to achieve any
7 desegregation in predominately minority central
8 cities and to hold any middle class residence of any
9 race.
10 The solution that was invented in
11 Milwaukee and Cincinnati was to try to create magnet
12 schools that would be integrated and offer a
13 specifically advanced curriculum, so that people
14 would choose to go to an integrated school in order
15 to get a better education.
16 THE COURT: So, part of it was
17 education, part of it was to keep the diversity from
18 moving out so that, at least, they had some that
19 they considered to be a better educational school?
20 A. Exactly. And the tool of it was to create something
21 so attractive that it would be diversed and it would
22 be reasonably stable.
23 And the other advantage they had was
24 there were new programs so they could create new
25 faculties and start new. And they could also offer
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1 ideas that weren't really appropriate for everybody
2 in a particular neighborhood, but would be exciting
3 to some kids from all over the city.
4 So it offered a chance for a major
5 educational innovation when it's done the right way.
6 THE COURT: But part of the reason
7 was to try to attract those persons what may be
8 moving out and leaving?
9 A. Yes, that was the basic reason.
10 THE COURT: Okay.
11 BY MS. MASSIE:
12 Q. In other words, it was a substitute for mandatory
13 bussing programs in the like, or a component of
14 desegregation that was non-mandatory?
15 A. It was non-mandatory, and it did involve a major
16 educational experience when it was done right. Now,
17 we have what I call little magnets which had an
18 actual major alternative name plate magnet, which
19 just appeared they were magnets, but didn't really
20 have anything really strong.
21 THE COURT: Was it done right
22 anywhere?
23 A. Yes, it was done right many places.
24 THE COURT: Give me an example. Not
25 so much here, but why did it work there and why was
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1 it done right there as opposed to other places when
2 it wasn't done right.
3 A. Well, for example though, Judge, that many cities
4 that are created racial and performing arts magnets.
5 They offer chances for kids to do professional level
6 preparation in the fine arts and visual arts and
7 performing arts, that didn't exist anyplace before.
8 Or science and math magnets that are
9 similar, that really offer very good competitive
10 training for college, that didn't exist in the
11 school district before. And they really do have
12 good staffs, and they really do do the job.
13 THE COURT: Did it accomplish
14 anything in terms of diversity?
15 A. Yes, I think it helped a lot of students who would
16 have been lost otherwise. It tended to stratify
17 kids on social class and income levels, because for
18 kids who had knowledge and connections figured out
19 how to get into them. But it did hold a lot of
20 middle class kids in the central city schools.
21 THE COURT: So certain cities it did
22 work?
23 A. Yes. And in certain schools and certain cities it
24 was quite successful.
25 THE COURT: Okay.
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1 BY MS. MASSIE:
2 Q. If we could talk some about the situation in
3 California after the Regent's decision outlawing
4 affirmative action and in Proposition 209. And then
5 also the situation in Texas following the Hopwood
6 decision, that's where I would like to direct you
7 now.
8 A. Yes.
9 Q. And if I could get Exhibit 198.
10 A. We have better overheads in our classrooms.
11 Q. Tell us what this do, where did you get this data
12 and what is this chart about, what is it?
13 A. This data comes from the University of California
14 office of the president which collects data from all
15 the campuses in the University of California system.
16 And it shows us the change in
17 admissions in public law schools in California
18 between 1996 and 2000 by percentage of students
19 admitted.
20 So, it shows for University of
21 California Berkley, University of California Davis
22 and University California Los Angeles.
23 And you could see here for African
24 American students at Berkley it went from nine
25 percent to 3.2 percent. At Davis it went from .2
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1 percent almost none, to 1.9 percent.
2 And at UCLA where they tried to go on
3 the skills of the social classes as a method, they
4 went from 10.3 percent to 1.4 percent for African
5 Americans.
6 Now, in California the percentage of
7 blacks and the total population is much higher than
8 that.
9 Q. It's 7.5 percent, is that right?
10 A. Yes, that is right. That's the adult population,
11 the student population is higher. Now, for Mexican
12 Americans and Hispanics, the define was less from
13 9.9 to 7.3, and there was a gain in U.C. Davis and a
14 decline in UCLA was more modest too.
15 But you have to understand that
16 Mexican Americans were really radically
17 underrepresented, they are now about half of the
18 students in California. So, we got a very, very
19 small representation of a huge population. And it's
20 growing every year during this period.
21 Q. I'm sorry, you said it was about a third of the
22 population?
23 A. No, it's almost half of the students. And of the
24 population in 1999 California, according to the
25 Census Bureau is 49.8 percent Hispanic. And a
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1 significant majority of the kids who are being born
2 in California are Hispanic now.
3 Q. I may have misunderstood, Professor Orfield, but I
4 think you said there was a gain in Latino enrollment
5 at U.C. Davis. And I see Latino enrollment falling
6 from 8.3 to 5.7 percent?
7 A. (Interposing) I'm sorry, I was looking at the wrong
8 line. That's correct, it's 8.3 to 5.7 percent.
9 Q. And what caused these declines in minority
10 representation?
11 A. Well, they were forbidden to consider race in
12 admissions. And they were allowed to do out reach,
13 but now that's been forbidden too by a more recent
14 California Supreme Court decision.
15 THE COURT: What do you mean by out
16 reach?
17 A. Out reach is recruitment for minority students.
18 THE COURT: Okay.
19 BY MS. MASSIE:
20 Q. Which is now forbidden?
21 A. By another subsequent Supreme Court decision, by the
22 California Supreme Court.
23 THE COURT: Won't let them recruit?
24 A. They won't let them recruit targeted away for racial
25 minorities.
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1 BY MS. MASSIE:
2 Q. But these numbers, these fall 2000 numbers represent
3 what the schools were able to do in terms of
4 preserving some representation of minorities with
5 recruitment efforts?
6 A. Right. And many of these schools tried very hard,
7 all kinds of different efforts to make up for the
8 loss of the fraction.
9 Q. Were there similar outcomes in Texas following the
10 decision of the Fifth Circuit in the Hopwood case,
11 which at least for the time being eliminated
12 affirmative action there. Tell us what the
13 similarities and the differences were, if you would?
14 THE COURT: Let me ask a follow-up
15 question. You said it was a California Supreme
16 Court case that indicated that the universities
17 couldn't do out reach and recruit?
18 A. It was actually a case on contracting from San Jose.
19 THE COURT: You know the name of the
20 case.
21 MS. MASSIE: It's a high voltage
22 case, I can get you the cite.
23 THE COURT: Would you mind?
24 MS. MASSIE: Not at all.
25 A. People in California in higher ed believe that it
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1 restricts them equally because it says you can't do
2 any racial--
3 MS. MASSIE: It's a contracting case
4 that construes Proposition 209 to prohibit all forms
5 of directed and targeted out reach and recruitment.
6 THE COURT: When you get a chance,
7 you can just give me a cite of it?
8 MS. MASSIE: I can give you a copy.
9 THE COURT: Thanks. I'm sorry, I
10 didn't mean to interrupt you.
11 MS. MASSIE: No problem at all.
12 A. I have some Texas statistics here. The year after
13 Hopwood at the University of Texas at Austin which
14 has the selective, highly selective law school in
15 Texas, there's an 87 percent drop in African
16 American students. It went down to four black
17 students in the entire law school entering class.
18 And it was a 38 percent drops in Hispanics.
19 And the following year the African
20 American numbers went up to--
21 THE COURT: (Interposing) Can I go
22 back to just one thing. Just back to California for
23 one second.
24 A. Yes.
25 THE COURT: When the proposition came
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1 in, and again a proposition that I probably should
2 be more familiar with it, but I'm not.
3 Was anything in there other than they
4 couldn't use race as a criteria or underrepresented
5 minority whatever it said, was there anything else
6 that they couldn't use, was there anything?
7 A. No, they could use anything else.
8 THE COURT: They could use anything
9 else?
10 A. Yes. And many thought and I know it was often said
11 in the arguments for the Proposition, that social
12 classes work just as well.
13 THE COURT: Okay. Back to your
14 answer.
15 BY MS. MASSIE:
16 Q. If you can tell us about Texas, we're kind of going
17 back and forth between the two, because there's
18 questions about undergrad outcomes, as well as law
19 school outcomes and all of that.
20 But if you can tell us about Texas
21 for a second, the law school context. Tell us what
22 the similarities and differences are?
23 A. In Texas there was a small recovery in terms of
24 black students in the second year that went from
25 four to eight, but it was still a drop of about 75
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1 percent at the University of Texas at Austin.
2 State wide there was a dramatic drop
3 in applications to law school, which is one of the
4 things that I don't think people really thought
5 about following a loss of affirmative action is kind
6 of a loss of hope that takes place in many minority
7 students.
8 So it went down from 686 applications
9 to 353. I believe these are figures excluding Texas
10 Southern, which is a historically black law school
11 and was not ever participating in affirmative action
12 in any case.
13 MR. PURDY: Excuse me, your Honor, I
14 don't mean to interrupt, but Professor Orfield is
15 reading from something and I'm not sure what the
16 source is. We don't have that document in front of
17 us.
18 MS. MASSIE: Fair enough, I
19 apologize. May I approach?
20 A. It's just my notes.
21 THE COURT: Why don't you show it to
22 the counsel.
23 MS. MASSIE: The Texas figures are in
24 the remarks and exhibits.
25 A. If I could get the numbers, now that I lost my
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1 notes.
2 MR. PURDY: Professor, I'll give it
3 back.
4 MS. MASSIE: For everybody's
5 reference, the tabulation for Texas which include
6 one chart, if I remember correctly, that has
7 numbers. In one it has percentages of people of
8 different races are at tab 131.
9 Judge, I'm going to get that out for
10 Professor Orfield.
11 THE COURT: Okay.
12 BY MS. MASSIE:
13 Q. So back on the Texas Law School question.
14 Summarizing, there were similar effects, somewhat
15 less sharp than the U.C. law schools and there's
16 been slight rebounds, is there a fair or an unfair
17 summary?
18 A. That's a pretty good summary.
19 Q. In both states--
20 A. (Interposing) Yes, go ahead.
21 Q. The elimination of affirmative action in admissions
22 in both states, resulted in a sharp and precipitous
23 decline in the numbers of black and Latino students?
24 A. Yes.
25 Q. Now, I want to ask you a couple of questions about
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1 Asian American students, and particularly in
2 California where Asian Americans are such a large
3 percentage of the population.
4 So, it's been some suggestion here at
5 trial which you haven't heard since you only came in
6 today, that Asian Americans gain from the
7 elimination of affirmative action.
8 But, in fact, the number of Asian
9 Americans enrolled in law schools in California has
10 remained virtually constant before and after Prop
11 209, is that right?
12 A. That's correct.
13 Q. Have there been similar effects in terms of
14 undergrad education in Texas and California?
15 A. Well, in undergrad education there was a very
16 dramatic drop at the University Texas at Austin, and
17 there was a very substantial recovery following the
18 limitation of a dramatic scholarship program
19 targeted at segregated high schools.
20 But they are still--they're nearly
21 back to where they were before Hopwood, in terms of
22 undergraduate admissions at the University of Texas
23 at Austin. Through a very expensive program and
24 actually admitting students with lower than average
25 test scores from segregated high schools. By giving
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1 preference to those high schools.
2 Now, some of the other campuses in
3 Texas they have not had a recovery, and the
4 University of Texas A & M, for example, which is the
5 other much selective campus, has not been able to
6 recover.
7 Also I should explain enrollments
8 even before Hopwood were limited by testings, a
9 couple of testing systems that have been implemented
10 in Texas in the 1980s and early '90s. So that we
11 were already limiting an eligible pool pretty
12 dramatically.
13 And since Hopwood, the percentage of
14 minorities in Texas has grown significantly, and
15 even if we recovered back to the level we've been at
16 the time of Hopwood, the proportionate access would
17 not have been--because the percentage of whites and
18 the population is going down fast, and the
19 percentage of Latino is rising pretty fast in Texas.
20 Q. Let me back you up for one second. The plan and
21 operations in Texas is called the Texas ten percent
22 plan?
23 A. That is correct, for undergraduate admissions only.
24 Q. For undergraduate admissions only. And there are
25 similar plans they're sometimes referred to
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1 generically as expert state plans in other states?
2 A. Yes.
3 Q. When was the Texas ten percent plan initiated and
4 adopted by the Texas state legislature and why?
5 A. It was adopted following the Hopwood decision,
6 because the legislators did not want to have that
7 kind of dramatic loss of minority enrollment.
8 And it was a collaborative effort
9 between the faculty members, the university
10 administrators and minority leaders and others in
11 the state legislature to put that plan together.
12 And it also involved a dramatic
13 downgrading of test scores as an admissions
14 criteria.
15 Q. It's the ten percent of what, what's the ten percent
16 about?
17 A. It's about ten percent of each high school in the
18 state.
19 Q. So the underline theory being since the K through 12
20 education is highly segregated?
21 A. You can get students who will be in the top ten
22 percent in the segregated schools who will be
23 eligible automatically for admissions to the
24 University of the Texas under that policy.
25 Q. But except, if I understand your testimony, except
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1 at U of T Austin, there's been no success at all
2 that the Texas ten percent plan can claim, or am I
3 overstating.
4 MR. PURDY: Your Honor, object to
5 form.
6 A. I did not say that. What I said was it had not been
7 successful at Texas A & M to the same degree. And I
8 also would say at another one of those places we
9 looked at, University of Texas or Dallas it doesn't
10 appear to have been successful. But I have not
11 looked at every campus in Texas.
12 BY MS. MASSIE:
13 Q. Let's go back, if we can, to the U.C. law schools.
14 You were saying that the UCLA law school after
15 Proposition 209 adopted a class based system?
16 A. Yes.
17 Q. In its admissions process, to try to compensate for
18 the loss of affirmative action?
19 A. That's correct.
20 Q. Can you tell us about that?
21 A. One of my students--I served on the Registration
22 Committee who is an admissions officer at the
23 University of California at Berkley Law School,
24 studying UCLA and Berkley's response to the end of
25 affirmative action.
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1 And what she describes is a decision
2 by Berkley to go to massive recruitment and changing
3 the way they evaluate a student's file. Much more
4 look at each individual student as an effort to try
5 to identify talents that were not identified by test
6 scores and other standardized measures.
7 THE COURT: That was UCLA?
8 A. That was Berkley. UCLA tried to do it to measuring
9 social disadvantage through indirect indicators like
10 poverty. I forget, they tried lots of of different
11 ones.
12 Berkley as you can see here was able
13 to recover a small part, up to 3.2 percent black
14 admissions, for example.
15 But UCLA had just a massive failure.
16 They went down from 10.3 three percent black
17 students, to 1.4 percent. So that the measures of
18 poverty and disadvantage, the status disadvantage
19 did not work to maintain diversity effectively in
20 anyway under that framework.
21 So, that's a huge cautionary note
22 about thinking that using poverty will get you a
23 diversity, and that it will provide for racial
24 integration. It just doesn't work in any kind of
25 straight forward or simple way.
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1 BY MS. MASSIE:
2 Q. And these are admissions figures, right, they're not
3 enrollment figures?
4 A. These are admissions figures.
5 Q. Do you know off the top of your head, Professor
6 Orfield, how many students enrolled at U.C. Berkley
7 and UCLA in the fall of 2000?
8 A. Not off the top of my head. But I have seen the
9 data, but I have not memorized it.
10 Q. It's a very small number of, in particular black
11 students, but also Latino students given the
12 population in California, is that right?
13 A. The population in California now in terms of its
14 public school enrollment is about two-thirds
15 non-white, and about half Latino.
16 So, these are very dramatically
17 different from the composition of the state. And
18 not responding to the alternative efforts of the
19 schools, which have been substantial.
20 Q. One of the things that we've been talking about a
21 lot so far in this trial, is the question of--do you
22 need to get a hard copy?
23 One of the things we've been talking
24 about a fair amount so far in the trial is the
25 question of student activity in law school
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1 admissions and its relationship to affirmative
2 action in admissions?
3 A. Yes.
4 Q. And the broad question I want to pose to you, and I
5 think there will be a number of different components
6 for our discussion of that, is why just becoming
7 less selective does not guarantee maintaining a
8 measure of integration and diversity in a law school
9 like the University of Michigan?
10 Put it a different way, why do we
11 need affirmative action?
12 A. If you're going to look at the University of
13 Michigan, for example.
14 Q. And let me interrupt you very rudely, I apologize.
15 Tell us what the data is behind this chart, it looks
16 like it was supplied by the LSAC, what is that, if
17 you can just say what the chart represents
18 graphically?
19 A. Yes. The Law School Admissions Council is the
20 organization that sponsors the law school admissions
21 test and kind of oversees its use. And it's the
22 institution that's responsible for the major
23 assessment of entering law students through
24 standardized testing.
25 And it sets rules and policies under
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1 which those tests are supposed to be used, which
2 most of the colleges don't follow.
3 But basically the law school
4 admissions test gives you a score, and the law
5 schools tend to look for students along a certain
6 point on those continuum. And tend to use those
7 tests as one of their major criteria for admissions.
8 And they tend to be evaluated in
9 part, particularly by influential evaluation like
10 U.S. News who will report about how high an average
11 test score is on this test. And that effects who
12 applies to them and how they are viewed in the
13 profession and so forth. So this is a very
14 important tool.
15 The Law School Admissions Council say
16 it should never been used as the only way to select
17 a student for a law school, but sometimes it is and
18 sometimes there's absolute cut points and so forth.
19 The law school admissions test like
20 other standardized tests is not a reliable predictor
21 of an individual student's performance. It's a
22 moderately good predictor of a group of students
23 with a similar test score for the first part of
24 their law school career in terms of what their
25 grades are.
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1 Law school admissions test has
2 nothing whatever to do with measuring whether you
3 will you be a good lawyer. There is no evidence to
4 show that it's linked to that.
5 Now, here if we look at this
6 distribution of scores, we'll see the University of
7 Michigan is selecting around this kind of average
8 score for its overall population in the 168 or 69
9 levels as I understand.
10 So, if the population that has almost
11 no minorities in the distribution of the test scores
12 is 13, an almost invisible line there. And
13 basically if it were to lower that average test
14 score, for the moment we're just considering this as
15 the thing that they're admitting on, they're
16 obviously admitting on multiple dimensions.
17 But if it were just test scores, if
18 they were to go down by ten points, they would
19 expand the number of students who would be eligible
20 to get in there by many times.
21 And most of the students who would be
22 included by lowering the standard, huge majority of
23 them would be whites. Because as you go down the
24 next several levels in test scores, the line of
25 increase in white eligible students increases much
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1 more rapidly then the line of eligible black or
2 Asian or Mexican American students.
3 It's just a tremendously high
4 increase. So you'll be getting a huge number of
5 students that would be eligible, the vast majority
6 of them would be white.
7 Q. So, in other words, even if the average LSAT score
8 of people accepted to a school like the U of M Law
9 School were substantially lower than what it is, you
10 would still, if you were the school, have to have
11 affirmative action in order to maintain any level of
12 integration and diversity at this school because of
13 how much the white people out numbered everybody
14 else at all the points of the spectrum until you get
15 to the very low end of it?
16 A. Until you get very far down into the level of pretty
17 non-competitive law school admission.
18 Q. Right.
19 A. So, the problem that you're facing is like the
20 problem the admission officer at Texas A & M told us
21 about, when she was talking about what they tried to
22 do in recruiting minority students after it was
23 outlawed in Texas.
24 Their college was not one that
25 traditionally received significant minority
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1 enrollment, it was viewed as hostile by many
2 minority students.
3 So, they would typically bring five
4 or 600 promising students to campus to get to know
5 the campus when they were allowed to do it.
6 After that was forbidden and that
7 they were allowed to do any targeted recruitment,
8 she said to get those five or 600 students, and if
9 they invited all the white students who had the same
10 test scores, they would have to invite 30,000. So
11 they stopped inviting anybody.
12 Basically the numbers get so large
13 you'd have to process applications from incredibly
14 large numbers of people. And you'd still have to
15 think about race in making your selection.
16 Because of the number of minorities
17 who would be even in a much larger pool, would be a
18 very, very small percentage of a hugely increased
19 number.
20 Q. Well, the numbers are large and the distributions
21 are quite different?
22 A. Yes, very different.
23 Q. Is that a way of summarizing?
24 A. Yes.
25 Q. This is 199. And this is the same data, except this
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1 data is representing the number of students scoring
2 each range, it represents the percentage of
3 students, is that true?
4 A. Yes.
5 Q. Why does this graph look so different, it's kind of
6 an obvious question to ask, only because we
7 presented the wrong graph until the lunch break?
8 A. Well, this graph shows you the distribution of
9 student scores within each racial group. But it
10 doesn't show you the number of students who are
11 actually taking this test within each racial group.
12 So, as you can see that there are
13 overlaps, but there's substantial differences in the
14 distribution by race for all these groups that are
15 represented.
16 And you shift, the center of the
17 distribution shifts pretty dramatically downward for
18 the non-white population with blacks, Mexican
19 Americans, Puerto Rican, Native Americans,
20 underrepresented minorities.
21 But it doesn't show you is that the
22 numbers of those underrepresented minorities is
23 really much smaller than the number of white
24 students. So it gives you an inaccurate picture in
25 that respect.
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1 It tells you about the distribution
2 of the students who do take the test, but it doesn't
3 tell you about the number who are taking them. Plus
4 the distribution.
5 Q. So, what does it say about the relationship of the
6 student activity of the law school and affirmative
7 action assuming, just for this question, that the
8 LSAT is going to be one important part of law school
9 admissions?
10 A. A school can become a lot more selective without
11 getting substantial minority representation and
12 becoming a lot less selective. And on this
13 dimension, it would probably have a huge increase in
14 applications to deal with.
15 So, it would have a lot more work to
16 do, and it would still be faced with the problem of
17 having to figure out how to get representation to
18 produce an integrated class. Especially in a place
19 like Michigan with such unequal preparation.
20 Q. In giving your earlier testimony about college
21 access, college achievement, inequalities in K
22 through 12 education, if you were to attempt to
23 eliminate the LSAT in law school admissions system,
24 and instead relied only on other academic criteria,
25 would you still have to use some kind of affirmative
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1 action under those circumstances as well?
2 A. Yes, I believe you will. There was actually
3 proposals to eliminate SAT in the state of
4 California put forward by a Latino caucus and among
5 the University faculty.
6 And an analysis was done by the
7 University of California system, and they found that
8 even if you eliminated the SAT and you just used
9 grades, you'd still have a fairly similar problem.
10 MS. MASSIE: Judge, if we could just
11 take a brief break. I mean we're just about done.
12 If I could have a huddle with co-counsel.
13 THE COURT: Take your time.
14 (Discussion off the record.)
15 MS. MASSIE: Thanks for the time,
16 Judge.
17 BY MS. MASSIE:
18 Q. Professor Orfield, is part of the opinion you're
19 expressing that, so long as a university admissions
20 system whether it's law school or undergraduate or
21 whatever it is, is using some kind of academic
22 criteria which could be standardized test scores
23 alone, grades alone, the two in combination, some
24 other set of academic criteria that I can't even
25 particularly think of right now, that in order to
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1 maintain any level of integration in diversity,
2 affirmative action will be necessary?
3 A. I think so long as the society has such inequalities
4 in the school are so unequal and preparation is so
5 unequal, any kind of just simple ranking on the
6 basis of academic preparation will tend to
7 perpetuate that segregation through the colleges and
8 professional schools.
9 And that you really have to consider
10 other criteria and you have to consider race as part
11 of that to get a reasonable representation, a
12 reasonable integration of those institutions.
13 Q. In the aggregate differences by race in those
14 criteria suggest to you the operation of a double
15 standard favoring minorities?
16 A. No, absolutely not. I think that these criteria in
17 this outcome represents an unequal set of
18 opportunities in this society. Both the present and
19 the historic--the results of the historic
20 discrimination within families and communities.
21 And these are measures of what kinds
22 of resources and opportunities you have, and they're
23 not measures of whether you're personally deserving
24 and dedicated and capable of contributing to a
25 profession.
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1 Q. And if the law school were to continue to weigh the
2 LSAT at all in law school admissions, what these
3 graphs tell us is that it would have to essentially
4 open up the field entirely and, in fact, not playing
5 at all in order to have any reasonable number of
6 minority applicants in proportion to the number of
7 white applicants it was considering, is that right?
8 A. Yes, I think that it would be difficult to use this
9 as the criterion of any real importance in the
10 absence of affirmative action, without having a very
11 segregated outcome.
12 Q. And the same is true for GPA?
13 A. They're very strong. The GPA and these scores are
14 going to be very strongly related, yes.
15 Q. Have you heard the term cascading?
16 THE COURT: Can we go back for one
17 second?
18 MS. MASSIE: Absolutely.
19 THE COURT: You talked about the
20 necessity for affirmative action in order to have
21 any relief.
22 In terms of just your own expertise
23 in the area, does there come a time do you think in
24 our society the way, at least, you see it and the
25 projections that you have made and so forth, that
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1 there it would come in a more natural way without
2 affirmative action.
3 Is there a time projection or a
4 percentage projection that would accomplish that
5 goal?
6 A. Yes. I think this is a goal that all of us would be
7 working for, and I think, you know, if you look at
8 the situation of what's happened to Asian students,
9 for example, who obviously were in a situation where
10 there was a tremendously intense history of
11 discrimination in California for a long time. And
12 by the country with Asians excluding acts and
13 everything else.
14 They are not segregated now, they're
15 in good high schools, they're not residentially
16 segregated to a significant degree, they're doing
17 very well. They're getting into very fine
18 preparation.
19 There's no need to consider
20 affirmative action for most of the Asian population.
21 Perhaps for some refugee populations. I think
22 that's a success. You get your success and you end
23 the policy.
24 For women, women were
25 underrepresented in most professional schools until
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1 very recently, there desperately needed to be an
2 affirmative action.
3 In many of its achievements purpose,
4 there's full access, they are well integrated, you
5 don't have to worry about it too much anymore. And
6 that's good.
7 We don't show that kind of evidence
8 for African Americans or Latinos or Native Americans
9 yet. And there's kind of disturbing evidence on
10 many dimensions, in the 1990s we are going backwards
11 on these issues. And if you're going backwards, you
12 never get to the necessary goal.
13 Our schools are becoming more
14 segregated, our test scores gaps are growing between
15 blacks and whites in elementary and secondary
16 schools. They're growing on some of the college
17 admissions tests.
18 We're going in the wrong direction
19 and it does not project out to a solution. So, I
20 think we have to refocus on getting those lines to
21 convert again.
22 We made a lot of progress on the
23 academic achievement gap between late 1960s and the
24 early to middle 1980s, and now we're not making that
25 progress.
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1 THE COURT: Where did we make those
2 though?
3 A. We made it especially in the south, especially for
4 black students. Half of the gap between blacks and
5 whites was eliminated between the late 1960s and the
6 early 1980s. And actually it's been really coherent
7 for the last few years.
8 THE COURT: Okay.
9 BY MS. MASSIE:
10 Q. Does the regrowth of that gap arise out of the
11 abandonment of desegregation efforts as you were
12 describing earlier?
13 A. Well, I don't think a direct link has been made,
14 although there is evidence that segregation produces
15 an increased academic achievement. But my personal
16 belief is that that is part of the cause, and that
17 there are other counter productive policies that
18 have been adopted.
19 Q. Why is it that in your view, that Asian Americans
20 have reached a point through the use of government
21 interventions and policies, at which affirmative
22 action is not necessary for them in higher
23 education, whereas Black Americans and Latinos have
24 not?
25 A. Well, Asian Americans were excluded from the country
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1 between the turn of the century and 1965 by federal
2 policy. That meant that there was no possibility of
3 creating big concentrations of low income Asians in
4 the United States during that period. Those that
5 were here tended to dissimulated during that period.
6 They did not, except in very few
7 instances, develop into segregated pockets. The
8 racial attitudes improved tremendously after World
9 War II towards Asians.
10 When we permitted renewal of
11 immigration from Asia in 1965 from the immigration
12 law reform, we set conditions which meant that most
13 Asian immigrants will be received after that period
14 except for the Vietnam era refugees were extremely
15 gifted and well prepared, well educated, often with
16 resources and so forth.
17 So, it was a very elite immigration,
18 maybe the most elite immigration in the history of
19 the United States. Typically when they arrived they
20 had a college degree, for example.
21 People who arrive in a high tech
22 society with college degrees and don't get
23 segregated and get connected with good high schools,
24 do fine in this society. And they are doing very,
25 very well, indeed.
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1 Now, the Asian populations that came
2 in after the end of the Vietnam War, the Vietnamese
3 refugees, Cambodians, Laotians are doing terribly.
4 They are getting isolated, they are locating in high
5 poverty areas, they're not making it, they are more
6 welfare dependent than blacks or Mexican Americans.
7 And they have very, very serious social problems.
8 So, I don't think it says anything
9 about deviation, I think it's what your human
10 capital is and where you get connected to the
11 educational system.
12 You don't see any census track in
13 California that doesn't have Asian residents. The
14 average Asians are homeowner at extremely high
15 levels, I'm sorry, higher than white incomes on an
16 average. And so is their family education.
17 So, it's a combination of a lack of
18 isolation, very few poor people came from Asia
19 except in the refugee population. And a very
20 selective immigration, and a decline in poverty and
21 segregation. All of those things help tremendously
22 in this population.
23 Q. So, there are different social conditions faced by
24 Asians of different national origins and different,
25 let's say, immigration histories?
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1 A. Yes, absolutely.
2 Q. And aggregating Asians just for the one question and
3 in no way disputing the existence of severe forms of
4 racial discrimination against Asians.
5 Asian specific Americans have
6 generally faced very different social conditions
7 than black people in the United States?
8 A. That's correct. And in recent history--they were
9 terrible a few generations ago. But in recent
10 history it has been much better.
11 Q. And the Latino people in the United States?
12 A. Yes.
13 Q. Have you heard of the term cascading with reference
14 to Proposition 209 in California?
15 A. Yes.
16 Q. What does that mean?
17 A. It means going down from more selective colleges to
18 least selective colleges within the system like the
19 University of California system.
20 And it means that minority students
21 being pushed from Berkley and UCLA down to Riverside
22 and other less selective campuses.
23 Q. And did that phenomenon, in fact, occur?
24 A. Yes.
25 Q. Has it been maintained?
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1 A. Well, Riverside which is the least selective of the
2 campuses has had a substantial increase, I believe,
3 in minority students during this period. The
4 important thing about this is basically the--the
5 higher universities are the dominant institutions
6 that train the leaders of the states. University of
7 Illinois, University of Michigan, University of
8 Minnesota, University of California Berkley. UCLA
9 to a considerable extent.
10 Those are the places that train the
11 leaders. So, cascading the minorities who are
12 really becoming the dominant population groups in
13 California, out of which are the trained
14 institutions, which is a huge tragedy of this story.
15 Q. And its created not in absolute terms, but in terms
16 relative to the pre-Proposition 209 era, a two track
17 system within the University of California?
18 A. That's right.
19 Q. In which there are better campuses which are more
20 white and more Asian, and campuses where the
21 resources are less well developed which are more
22 black and more Latino, is that right?
23 A. That's right.
24 Q. So, what the word cascading means really is that two
25 track separate unequal system within the UC, is that
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1 right?
2 A. Well, cascade is water flowing down a hill
3 basically, over a series of bumps. And basically
4 the students who have the least choices ending up in
5 places that they don't want to be, which are less
6 connected to opportunities in their state.
7 Q. I'd like to sum up in a second, but before I do that
8 I want to move the demonstrative exhibits into
9 evidence.
10 MS. MASSIE: So we're talking
11 Proposed 195 through Proposed 200.
12 THE COURT: Other than the objections
13 that you've made just before, are there any other
14 objections?
15 MR. PURDY: No.
16 THE COURT: The court will receive
17 subject to those objections.
18 MS. MASSIE: Thank you, Judge.
19 BY MS. MASSIE:
20 Q. Can you summarize, Professor, first, the role of
21 race and ethnicity in K through 12 educational
22 opportunity today in the United States?
23 A. That sounds like a good comprehensive exam question.
24 I would just say that race matters and it matters
25 deeply, and it matters even increasingly in terms of
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1 the opportunities you get.
2 Students are isolated, they are
3 isolated not just by race, but also by almost every
4 other measure that you can look at that would effect
5 their educational opportunity.
6 And they are discontinued from what
7 they need in terms of information, in terms of
8 channels of movement, in terms of mentors, in terms
9 of many things that affect how students lives
10 develop because of the segregation system.
11 And many white students are growing
12 up in isolation of knowledge of the society that's
13 emerging. This is a society that's going to be half
14 non-white in a lifetime, so most of the people are
15 in school now.
16 Many of those white students are
17 being denied the opportunity to be prepared for that
18 society in any meaningful way, by the isolation that
19 they experience, which is also very high.
20 So, there's huge consequences not
21 just for what students learn, but also for what kind
22 of ability we will have to operate that interracial
23 society from this system of educational training.
24 Q. And tell us how those questions are similar or
25 different for higher education as well?
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1 A. Well, basically we are in a society where higher
2 education in this last generation has become less of
3 an option and more of a necessity. All of the
4 increased wealth of our society has gone to people
5 with higher education since the 1970s. And people
6 without higher education have gotten none of it.
7 All of the good possible future jobs
8 that can support families and communities are going
9 to require post secondary education.
10 Higher education in places that are
11 abandoning efforts to achieve any kind of
12 interracial schooling, is the only place that people
13 are going to have this kind of experience since we
14 don't have mandatory military service anymore.
15 It provides that, higher education
16 provides both the opportunities and the leadership
17 for our society, and it really is one of our
18 formative shaping institutions.
19 MS. MASSIE: Actually, Judge, before
20 I ask my next summarizing question, I am informed
21 that I spaced out several exhibits. I should also
22 be trying to admit 118, which is the exhibit on
23 which demonstrative No. 198 is based, I think.
24 167 is the extra report. 131, 32 and
25 33. 131 through 133 are figures from California
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1 that very much form the basis for Dr. Orfield's
2 opinions and discussion. I apologize, I should have
3 done it all at the same time.
4 THE COURT: Received over the
5 objection.
6 BY MS. MASSIE:
7 Q. Why is affirmative action necessary in higher
8 education, in your view?
9 A. Well, I think it's necessary because we have a very
10 unequal preparation system in this society, and we
11 desperately need to have generally interracial,
12 integrated institutions of higher education, if
13 we're going to have our public institutions serve
14 the entire society and create citizens and leaders
15 for the society who can make the kind of profoundly
16 interracial society where it will become a function
17 effectively. And each of the professions work
18 effectively.
19 Q. And what happens in the real life experiments that
20 have occurred in this country where you've
21 eliminated affirmative action?
22 A. When you eliminate affirmative action you go back
23 towards segregation and you reduce the level of
24 integration in some of your key institutions to a
25 level where it's too small to work, it's too small,
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1 more example, to have meaningful interracial contact
2 with the white students.
3 And denies them the opportunity to
4 learn from that kind of contact, and it does not
5 create the professional and civic leaders who really
6 know how to work together and learn how to do that
7 in their educational process.
8 Q. And through efforts like desegregation both of K
9 through 12 education and also higher education
10 through deseg and affirmative action, have we made
11 significant and meaningful progress?
12 A. We are a very different society than we were before
13 the Civil Rights era. We were a society that had
14 total apartheid in 17 states a half century ago.
15 And those states remain much more effectively
16 interracial and with more interracial contact then
17 any place outside the south now. Particularly
18 places like where we are now.
19 So we've done some very powerful
20 transformative things in parts of the country. We
21 have created much more interracial contact, and we
22 have created--we had no significant minority
23 professional class in the United States when this
24 whole effort started.
25 We have minority leaders in every
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1 profession now, and we have people who have shown
2 that there are no absolute barriers in terms of
3 capacity or will.
4 We have millions of children who have
5 grown up in other states in interracial schools who
6 have had very positive experiences. We have learned
7 a lot about what you can do, and we have done a lot
8 of things that we thought to be impossible then.
9 But we are going in the opposite direction now.
10 Q. By the way, is that expansion of opportunity for
11 black, Latino, Native American and other minority
12 people, has it also carried with it the expansion of
13 opportunity for poor and working class white people
14 in higher education specifically?
15 A. Yes. We really didn't have any financial aide for
16 college until the 1960s. And the expansion that
17 made a college generally accessible to minority
18 students, in many ways helped working class white
19 students go to college as well, and still does.
20 Q. And finally, Professor Orfield, why in your view
21 have Berkley's law school, Boalt Hall's efforts to
22 compensate for Proposition 209 through out reach and
23 recruitment, and UCLA's effort to compensate for it
24 through a kind of class based affirmative action
25 approach, in addition to all other things they tried
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1 to do, focusing on their efforts to overcome the
2 resegregation of there schools that was imposed on
3 them by Prop 209, why have those efforts failed, in
4 your opinion?
5 A. Well, I think because there's a pervasive in
6 inequality of preparation for education in
7 California as I may have mentioned the ones we've
8 talked about.
9 And on top of that, there's a lack of
10 tradition, there's a lack of contact, there's many
11 reasons why many students don't think about these
12 careers.
13 On top of that, there is an absolute
14 inequality in the level of preparation measured
15 on--anyway you measure it, it's serious. And if you
16 do not consider race, if you do not consider making
17 up for the consequences of those inequalities, they
18 will be perpetuated.
19 There will be some extraordinary
20 students who can make it in any circumstances, but
21 it will not be enough to really begin to change the
22 racial characters of those institutions and their
23 creators.
24 You kind of eliminate institutions in
25 the kind of distribution of opportunity which would
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1 then allow successive generations to require less
2 and less affirmative action.
3 Q. And when you say inequality, in that answer you're
4 speaking specifically of racial inequality?
5 A. Yes.
6 MS. MASSIE: Thank you.
7 THE COURT: Mr. Payton. You want a
8 break.
9 MR. PAYTON: Yes.
10 THE COURT: Sure. We'll take 15
11 minutes.
12
13
14
15
16
17
18
19
20
21
22
23
24
25
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178
1 (Back on the record at 3:19 p.m.)
2 THE COURT: You have a couple more?
3 MS. MASSIE: Yeah, I do have a couple more, thanks.
4 THE COURT: Yes.
5 BY MS. MASSIE:
6 Q Professor Orfield, when Proposition 209 was
7 implemented -- strike that.
8 The first year in which it applied to undergraduate
9 admissions was what, if you know?
10 A Well, it took place in 1996. I believe it really took
11 hold in 1997.
12 Q And what that means, if I'm counting correctly, is that
13 we haven't even seen law school admissions in California based
14 on post Prop 209 undergraduate college careers?
15 A That's correct.
16 Q So there's a second wave effect that hasn't even yet been
17 expressed?
18 A Yes. You have a diminished pool of college graduates
19 coming out within the states, and it really has a national
20 effect already. For example, medical schools get most of their
21 Latino students from California and Texas, both of which don't
22 have affirmative action anymore. Those states have over half
23 of the Latino students in the country. So we're going to see a
24 growing impact if we can't turn around these results on
25 undergraduate admissions.
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179
1 Q And say it again to make sure we were clear, since I'm
2 informed that we were not, what have the people at UCLA and
3 Boalt Hall tried to do?
4 A Well, what they have tried at UCLA, as I understand it
5 from Alan Haynes' dissertation, is they have tried all manner
6 of different ways to measure economic disadvantage that don't
7 deal with race and they have had a tremendous failure, in
8 particular when reaching minority students.
9 In UCLA they have tried a more common alternative,
10 which is to go to a more massive outreach and interview and
11 full file review and so forth. They have done a lot of that
12 at Texas as well, and that also has fallen short at UCLA, but
13 the basic story is that there's a lot of people trying to
14 figure out some alternative and trying out all kinds of things
15 that we can think of and they just don't work as well creating
16 diversity as having affirmative action as part of the arsenal
17 in the past.
18 Q In fact, the numbers have fallen tremendously?
19 A Yes.
20 Q Despite those efforts?
21 A Yes.
22 Q And now, as I understand it, outreach looks to be illegal
23 as well?
24 A In California.
25 MS. MASSIE: Thanks. That's all I have.
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1 - - -
2 CROSS-EXAMINATION
3 BY MR. PAYTON:
4 Q Good afternoon, Professor Orfield.
5 A Good afternoon.
6 Q Just as a pre matter, we actually have meet, we know each
7 other?
8 A Yes, that's correct.
9 Q And you talked about the Civil Rights Project. I have
10 come to a number of those events --
11 A Yes.
12 Q -- and appeared at a number of those events.
13 I want to focus on the educational significance of
14 some of the things you have talked about. You used an exhibit
15 that showed three measures of segregation for various states
16 in the United States. Do you remember that?
17 A That's correct.
18 Q And I don't need to put it back up, but it showed some
19 extreme segregation in some states, including in Michigan?
20 A Yes.
21 Q And we heard Erika testify earlier this morning about her
22 own personal experience where there were virtually no White
23 people in her life K through 12?
24 A Yes.
25 Q So here is my first question. Is there some
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1 self-awareness in the country about how segregated we remain?
2 A No, there really isn't. People think that we have solved
3 a lot of these issues, and we celebrate them every Martin
4 Luther King Day as if they were issues in the past.
5 Q Okay. And in spite of the fact that people must know
6 where they live, and if they live in all-White areas or in
7 all-Black areas or in all-Hispanic areas, in spite of that they
8 still don't have the awareness of how our society remains White
9 divided like that?
10 A People tend to believe that we're much further along on
11 these issues than we are and that there's much less
12 discrimination than current research actually shows continues
13 to exist, and if you ask, people will say there is equal
14 access, that people do get equal preparation. Many polls show
15 a fairly large majority of Whites believing that to be true
16 now.
17 Q We today, this country today has very substantial numbers
18 of a variety of racial groups and ethnic groups; isn't that
19 correct?
20 A That's correct. We're the most diverse we've ever been
21 and we're getting much more diverse every year.
22 Q Okay. And given how residential segregation still
23 operates and K through 12 education is still segregated, can
24 you give us your view on what different groups know about other
25 groups? What do White people know about African Americans,
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1 what do African Americans know about White people, Hispanics,
2 Asian Americans? What do we know?
3 A There's really a lot of deep ignorance about other groups
4 in the society on the part of each group in the population.
5 The National Council of Christians and Jews did a survey a few
6 years ago that showed that all groups maintain racial
7 stereotypes about all of the other groups and have disturbingly
8 little communication with any of them. Friendship patterns are
9 often weak. People have fears of going into particular parts
10 of cities where they will not be in the racial majority.
11 People have tremendous discomfort in settings of other racial
12 groups, don't understand what's going on, feel excluded, see
13 prejudice where prejudice doesn't even exist, where they don't
14 understand what's actually happening. There's lots of costs to
15 our public life that come out of this profound separation and
16 ignorance of each other.
17 Q If people live in a community that is all their own
18 racial group or substantially their own racial group and
19 therefore don't have neighbors or friends or classmates of
20 other races, what's the source of how they know anything about
21 any other group?
22 A Well, they get it from informal communication in their
23 families, from mass media, from other sources, and they don't
24 really have enough understanding of the variation within -- I
25 mean each of, each of our great racial and ethnic groups has
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1 such infinite variety within it that people need to experience
2 not just a slight contact but a significant contact with a
3 variety of people from another racial ethnic groups to have any
4 understanding of what the society is actually like.
5 Q Okay. You were asked about how important it is that our
6 future leaders or that our best institutions be engines for
7 training our future leaders and that it really matters that a
8 cross-section of our society be in those premiere institutions.
9 I want to ask you a slightly different question, which is for
10 the sake of trying to deal with the ignorance that exists and
11 the stereotypes and misinformation that exists out there, could
12 you comment on the educational value, just the educational
13 value of having meaningful numbers of Black students, Hispanic
14 students, Native American students in institutions like
15 Michigan, Boalt Hall and UCLA?
16 MR. PURDY: Excuse me, Your Honor, obviously based
17 on the question I have to at least renew our objection.
18 That's asking the value of diversity.
19 THE COURT: Very well. I don't think we're going to
20 take much time on that.
21 You may answer.
22 THE WITNESS: Well, our survey clearly shows, for
23 example, for legal education that students who are in more
24 racially diverse settings see their perspectives change,
25 actually change their minds on important issues, redefine the
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1 way they think about their careers and their clients. It has
2 very deep effects on all racial groups, according to what the
3 students at these institutions told us.
4 MR. PAYTON: That's all. Thank you very much.
5 THE COURT: Plaintiffs may question.
6 MR. PURDY: Thank you, Your Honor.
7 - - -
8 CROSS-EXAMINATION
9 BY MR. PURDY:
10 Q Good afternoon, Professor Orfield.
11 A Good afternoon.
12 Q Let me follow up on something. I'm going to probably try
13 and go backwards because that'll be the easiest way to flip
14 through the notes.
15 A I think that's what you're trying to do in general.
16 MR. PURDY: Well, I asked for that one, didn't I,
17 Your Honor?
18 THE COURT: You know, I always say the attorney only
19 represents clients. You get that in the criminal arena all
20 the time, especially with victims when they are being
21 cross-examined by defense counsel. They tend to blame it on
22 the defense counsel. But go ahead.
23 BY MR. PURDY:
24 Q You were talking about the importance of the
25 communications that we have with one another, of learning about
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185
1 one another, and the deep ignorance that I think you
2 characterized that each group has with regard to other groups,
3 and that's true for everyone, correct?
4 A Yes.
5 Q Earlier today you made an interesting comment, I wrote it
6 down in my notes and I won't flip back to it just yet, but you
7 talked about because we no longer have mandatory military, you
8 know, we have less, I assume what you were talking about, we
9 have less chance to interact with one other across racial
10 lines?
11 A Well, we have two great institutions that really cross --
12 are supposed to cross all the lines in our society, one of them
13 is public schools, common schools, and the other was universal
14 military service for our young men. Those were the two things
15 we have. Nothing else really does that.
16 Q You know, I'm just curious, and let me just ask you this
17 question.
18 A Not that I'm advocating a mandatory draft.
19 Q Well, actually you foreshadowed my question. If, if it
20 is so important to you that we do learn, and let's all agree
21 that it is important that we all learn how to deal with
22 one another without the issue of race creating a problem, would
23 you be in favor of schools, and let's say law schools,
24 requiring that applicants demonstrate experience in a
25 demonstrably diverse environment such as the military before
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1 they even apply?
2 A My belief is that schools, our institutions of higher
3 education are, generally speaking, very successful institutions
4 and some of the most successful in the world and that we should
5 not try to proscribe externally how they choose their students
6 and faculty except when it's absolutely essential for a public
7 purpose, and I think that since the colleges and universities
8 are trying to develop and have developed reasonable policies
9 for pursuing this issue we shouldn't try to impose on those as
10 long as they are working reasonably well. So no, I don't -- I
11 think that it's one thing that could be considered by
12 admissions committees, and I have actually heard this
13 considered in admissions committees I have served on, does this
14 student have any experience in a diverse environment, are they
15 going to be able to add that understanding to our class. It's
16 one of the many legitimate things that can be considered.
17 Q Well, and I just want to follow up on that point. If it
18 is as important, in other words, let's assume that a, that a
19 law school, any law school says that it is -- this is a
20 compelling interest to us, it's more important than all of the
21 academic requirements that we may impose, it's more important
22 than the essay that may be written, it's more important than a
23 letter of recommendation may be, indeed the most important
24 thing to us is that we have this class of people who bring to
25 us the ability to work with one another and amongst one another
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187
1 across racial lines. Why wouldn't that be an outstanding
2 requirement to impose in addition to all of the academic
3 qualifications, that each applicant demonstrate that they have
4 participated in an interracial, successfully participated in an
5 interracial environment such as the military?
6 A Well, it would eliminate women, for one thing. Another
7 thing is that it would eliminate all of the people who were
8 involuntarily segregated.
9 THE COURT: Why would it eliminate women?
10 THE WITNESS: Because they are not in the military
11 in large numbers, and they have certainly never had mandatory
12 service.
13 BY MR. PURDY:
14 Q There is nothing that prevents a woman from enlisting?
15 A Well, in effect. I mean I think this is a very
16 hypothetical example.
17 And the other thing is it would eliminate all of the
18 people who are forced to be segregated. Most Blacks and
19 Latinos don't want to be segregated. They are segregated
20 because they don't have any alternatives, and to punish them
21 for not having an integrated experience would be to add insult
22 to injury.
23 Q Maybe I misunderstood you. It seemed to me that some of
24 your testimony today suggested that, that there were Whites
25 who, in fact a great many Whites, who I believe according to
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1 you lack any meaningful interracial experience.
2 A Absolutely.
3 Q We were talking earlier about the effects of Proposition
4 209 in California, and let me ask you, if you could, do you
5 know today, and let's take the flagship university -- in fact
6 they have two flagship universities in the University of
7 California system, do they not?
8 A De facto, I think that's right.
9 Q Okay. And we're talking about UC Berkeley and UCLA,
10 right?
11 A That's correct.
12 Q All right. At UC Berkeley today do you know what the
13 undergraduate breakdown is by race?
14 A I do have those tables, but I don't believe I brought
15 them with me today.
16 Q Let's see if we can agree roughly on percentages. What's
17 the largest single group, ethnic group on the campus of UC
18 Berkeley today after Prop 209?
19 A I'm trying to remember whether I have, I have seen some
20 statistics that suggested it was Asians, but I don't really
21 remember the numbers right now, I see so many tables.
22 Q How about at UCLA, same answer?
23 A Same answer. I really don't like to answer statistical
24 questions without reviewing the statistics, and I'd be happy to
25 look at the tables.
Paul Orfield - Cross
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189
1 Q Well, no, you were talking about the effects on --
2 A We were talking about law school admissions.
3 Q I apologize. I thought that you were also addressing
4 questions about the undergraduate. You're not testifying about
5 the effect of Proposition 209 -- well, strike that, you did
6 testify --
7 A The undergraduate admissions, I think I gave statistics
8 for two years, for 1997 and '98, but that was -- and you're
9 asking about today, and I don't have the 2000 figures with me.
10 Q All right. But would it surprise you today -- let me
11 just give you these numbers, and you tell us. If you're
12 surprised, I won't hold you to them. Would it surprise you
13 today that at Berkeley the largest ethnic group at Berkley is
14 Asian Americans and they constitute in excess of 40 percent of
15 the student body?
16 A No, it would not surprise me at all.
17 Q All right. Would it surprise you that 30 percent
18 roughly, 30, 31 percent, would be White students?
19 A No.
20 Q And then the remainder would be Latinos and
21 African-Americans, Native Americans, and other ethnic groups?
22 A International students.
23 Q International students, correct. And then if we looked
24 at UCLA, would numbers similar to that surprise you today?
25 A No, no.
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190
1 Q And this is after the passage of Proposition 209?
2 A Right.
3 Q As a matter of fact, was the Asian enrollment on either
4 of those campuses at that level before Prop 209 was passed?
5 A The Asian enrollment has been rising steadily on those
6 campuses for a long time because most Asians in California came
7 after 1965 and their population growth has been exponential.
8 Q You don't believe Prop 209 had any impact on the Asian
9 enrollment?
10 A It had some, but the basic trends had been operating for
11 quite a long time.
12 Q Let's talk about Texas. Before Hopwood the undergraduate
13 enrollment at Texas which you were talking about --
14 A Yes.
15 Q -- was approximately 4 percent African American, in that
16 range, correct?
17 A I would really like to look at the tables before I
18 testify to any particular numbers.
19 Q Sure. If you have them there, please do so.
20 A Okay. I have the first-time freshman table for Texas.
21 Let's see.
22 Q We're looking before Proposition -- I'm sorry, before the
23 Hopwood decision.
24 A The Hopwood decision?
25 Q Yes, sir.
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191
1 A Now, repeat your question, please.
2 Q What was the underrepresented minority enrollment by
3 percentage before Hopwood was decided in the undergraduate
4 campus at UT Austin?
5 A I'm sorry, this table is for all Texas universities. I
6 don't have the UT Austin table with me.
7 Q All right. I believe you did testify earlier that in
8 fact the undergraduate enrollment at Austin has rebounded to
9 pre-Hopwood levels; is that correct?
10 A Yes, that's correct.
11 Q All right. And that includes both African American
12 students and Hispanic students, correct?
13 A Yes, I believe that's correct.
14 Q All right. You also made mention of Texas A & M, and I
15 was a little confused because you said they have not rebounded
16 but then later in your testimony you mentioned that Texas A & M
17 had never had a high African American enrollment.
18 A That's correct, and it went down after.
19 Q Do you know what the African American enrollment before
20 Hopwood was at Texas A & M?
21 A I don't recall it.
22 Q Do you know how much of a drop, if any, there was since
23 Hopwood?
24 A I do not have the numbers with me, but we did commission
25 a study at the University of Texas -- Texas A & M University
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192
1 and there was a substantial drop, as reported by their
2 admissions office to us.
3 Q But you can't tell us --
4 A I don't remember the exact numbers.
5 Q All right. Now, you also mentioned the University of
6 Texas --
7 A We could certainly supply them for you.
8 Q You also mentioned the University of Texas at Dallas, and
9 I believe when you and I met earlier --
10 A Yes.
11 Q -- I guess it was last fall --
12 A Yes.
13 Q -- you mentioned the University of Texas at Tyler as
14 well?
15 A I don't remember that.
16 Q Do you know what the pre Hopwood numbers were at either
17 UT Dallas or UT Tyler?
18 A No. If I had the tables in front of me, I could answer
19 that. I don't memorize the statistics for every college and
20 university, and I'm not going to guess.
21 Q Do you know how they compare since Hopwood at UT Dallas
22 and UT Tyler?
23 A Same answer.
24 Q You don't know?
25 A No. I know that the UT Dallas went down. I remember
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193
1 that. I don't remember the UT Tyler statistics.
2 Q Judge Friedman asked you a couple of questions, and I
3 tried to write down -- I'm not sure I got answers, that I heard
4 the answers so I just want to go back over that, and I
5 apologize. I believe the question was, does there come a time
6 when it will come about that we will have the diversity that
7 you were talking about, the racial and ethnic diversity without
8 affirmative action? Will there be a time? Can you give us a
9 time?
10 A If you give me the policy, I'll give you the time. Under
11 the present policies it would never happen because we're going
12 backwards.
13 Q No, no. Let's just talk about the policy. Let's assume
14 that there is no change in policy at the University of
15 Michigan, for example. Can you tell us when in point of time
16 you believe that that policy of considering race will not have
17 to be used any longer?
18 A Well, it depends on what happens within the rest of
19 society. If we provide equal educational opportunities for
20 students in this state, if we end the patterns of serious
21 segregation, if we work on other conventions that produce these
22 unequal scores, we won't have to have affirmative action, and I
23 really would be very happy when that day comes.
24 Q Professor Orfield, I'm sure we all would, but the
25 question, the question to you is do you, sitting here -- and I
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194
1 mean obviously you are, you've done a number of studies.
2 You've told us about your expertise in the areas of educational
3 opportunities, and we have read that, we have listened.
4 Sitting here as an expert in that area today, can you tell us
5 when in point of time you would no longer see the necessity for
6 taking race into consideration in college admissions?
7 A What I would say is under the existing policies that
8 we're operating under in our public schools and other
9 educational institutions, no one could tell you that point if
10 they wanted to have reasonable integration. We are heading
11 towards even more unequal educational preparation.
12 Q And I appreciate what you said. You can't answer because
13 of the unequal educational preparation and opportunities that
14 exist throughout our society and throughout our educational
15 system, correct?
16 A In the most extreme form here in Michigan.
17 Q Right, and I believe you were talking about -- in fact,
18 Mrs. Dowdell quite eloquently today told us about her schooling
19 and the obstacles that she had to overcome. You recall that
20 testimony?
21 A Yes, I do.
22 Q And I gather that that is really your focus, it's the
23 preparation beginning K through 12, that's where the inequality
24 occurs that ultimately results in so few of the kids coming out
25 being able to qualify for let's say the University of Michigan
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195
1 Law School; is that not true?
2 A That's part of it.
3 Q Is that a big part of it?
4 A It's a substantial part, but in addition to that, there
5 is the effect of discrimination on their parents, there's the
6 effect of discrimination in housing, in jobs. There's many
7 forms of inequality that perpetuate this lack of preparation
8 and access.
9 Q Absolutely, and I did not mean to, by my question I
10 didn't mean to suggest that there weren't all of these other
11 impacts, the effects of the racial discrimination that you
12 talked about earlier today. There are a whole host of those
13 that impact these issues, are there not?
14 A Many of them caused by public agencies for a long period
15 of time and continuing now.
16 Q Sure. Is it for that reason in fact in an effort to
17 overcome the historic effects of discrimination as they still
18 exist, as you've told us about, is that the reason why you
19 support the use of race in college and law school admissions?
20 A I support it for that reason and for other reasons. I
21 think that White students need it very badly. I think that the
22 professions need it. I think the universities need to serve
23 all of the people who are taxpayers in their states if they are
24 going to be viable as institutions. I think there's many
25 reasons for supporting affirmative action. Part of it is for
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1 making up for a history of discrimination. Part of it is for
2 creating a decent society.
3 Q And wouldn't you agree that when the state is spending
4 its time and its resources to benefit its citizens that it
5 should do so without regard to a person's race or ethnic
6 background?
7 A If we were in a society where the race and ethnic
8 background didn't produce a tremendous inequality that was
9 reinforced by state-sponsored actions, that would be great. I
10 wish we would come to the day when we don't have to consider
11 these things. We have to consider them now or we'll just
12 perpetuate the segregation.
13 Q And it's precisely because of the inequalities due to
14 discrimination that you take that position?
15 A That's one of the reasons.
16 Q That's the principal reason, is it not?
17 A I think that there's a reason -- that all students need
18 to have this diversity, and if you can't achieve the diversity
19 because of lack of preparation, it's important to get it, not
20 just for minority students, it's important to get it for other
21 students, for the White students, for the Asian students, it's
22 important to get it for the professions, it's important to get
23 it for the public institutions to have a viable future
24 political constituency. There are many reasons why we should
25 support this.
Paul Orfield - Cross
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197
1 Q Professor Orfield, by your testimony today are you
2 suggesting or do you take the position that it is appropriate
3 to have a different standard for evaluating academic
4 qualifications of certain minorities as compared to Whites and
5 Asians?
6 A I think that when we're on admissions processes in good
7 universities with good admissions processes we don't say, we
8 don't consider a student as an academic this and a social that,
9 we consider the whole person and the whole class when we are
10 doing admissions processes.
11 Q I appreciate that.
12 A So we're considering dedication, we're considering
13 persistence, we're considering overcoming obstacles. We're
14 considering all of the things that might produce a great
15 lawyer, for example.
16 Q Sure. And you would agree, would you not, that there are
17 White students who show incredible persistence and perseverance
18 and courage in overcoming tremendous obstacles, whatever they
19 might be, in their background, correct?
20 A I agree that's true. Almost none of them confront the
21 same kind of thing that Erika described in her neighborhood.
22 Q Well, you're not suggesting that there aren't White
23 students that haven't had to confront equally serious
24 obstacles, are you?
25 A There's White students that have to confront lots of
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198
1 obstacles but hardly any grow up in a place where all of the
2 houses have been bulldozed because of discriminatory housing
3 practices, where the schools are totally inadequate, where
4 there is nobody of any other background, where there is nothing
5 comparable to what middle class kids get in our basically
6 suburban society. Not very many White kids confront that. We
7 find almost no White children in high-poverty schools in most
8 of our metro areas, for example.
9 Q Are you suggesting, Professor Orfield, that there aren't
10 White and Asian American students who don't face the same or
11 even indeed more difficult obstacles than Ms. Dowdell may have
12 testified to about today?
13 A Well, she testified about being Black in the
14 United States. There are no White students who are Black.
15 Black students really do confront things that are different and
16 that are unique. I have Black students, graduate students at
17 Harvard who are stopped by police in stores because they think
18 they are being shoplifted and they are doctoral students at
19 Harvard. It's only because of the color of their skin. You
20 know, there are things about American history that are pretty
21 fundamental in this dimension that you have to understand.
22 Q Professor Orfield --
23 A Not to say there is not really deeply disadvantaged White
24 children. There are. They are tremendously disadvantaged.
25 Even the Asian children. Of course there are. But whether
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1 they as a class are disadvantaged by something that they are
2 born with, that they cannot escape, is a different question.
3 Q It's wrong, is it not, to stop someone who is walking
4 through your store simply because of the color of their skin?
5 A Absolutely.
6 Q It's wrong to stop someone who may be driving down the
7 street who may be violating no law simply because of the color
8 of their skin?
9 A Of course.
10 Q Do you assume that every law student, every
11 underrepresented minority law student at Michigan has been a
12 victim of racial profiling?
13 A Of course not.
14 Q Do you assume that every law student, underrepresented
15 minority law student at Michigan has been stopped in a store
16 simply because of the color of their skin?
17 A Of course not. But in every one of my classes where I
18 ask this there are several hands that go up. So that the
19 probability that they will be stopped because of the color of
20 their skin is hundreds of times greater. I mean I have never
21 had a White student who said they were stopped because of that.
22 Q So you're talking about the statistical probabilities
23 that have come out of some of the studies that we all are aware
24 of about racial profiling?
25 A Yes. What we are doing in admissions is all about
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1 statistical probabilities. That's what test scores are,
2 statistical probabilities. None of them are absolutely
3 predictive. They are hunches about students.
4 Q You earlier said that it's your opinion that no matter
5 what, in fact correct me if I'm wrong, Professor Orfield,
6 because I don't want to misstate this, but I believe you said
7 no matter what you do in terms of the LSAT and the GPA, whether
8 you eliminate it or deemphasize it, you still must use race in
9 order to enroll a racially diverse class. Is that a fair
10 characterization of what you earlier testified to?
11 A Well, I say if you rank people on the basis of LSAT and
12 GPA, however you do it, given the way those things are
13 distributed in our society as its structured now, you're going
14 to have a class that has very, very few disadvantaged minority
15 students in it.
16 Q You frequently used the term today racially -- well,
17 maybe you didn't frequently use it, but you did at least in the
18 answer that I wrote down. You had the term a racially diverse
19 class. How do you define a racially diverse class?
20 A Well, we went around this many times during our
21 deposition.
22 Q Yes, we did.
23 A I leave that to the faculty of the university thinking
24 about the society that it's serving. I don't try to define it
25 from the outside. I think that faculties are the best groups
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1 to do that, and we should respect them and respect their
2 First Amendment rights to do that.
3 Q I just want to be clear. We did go around about this,
4 around and around. If I were to ask you how you would define a
5 racially diverse class, could you give us a definition?
6 A If I were a member of the faculty at a university and you
7 asked me that question, I would think about it hard and define
8 what I thought was a meaningful answer in that community. I
9 would not try to give a universal or national answer for a
10 society that's as complex and as diverse as ours is.
11 In San Francisco we have 12 different racial and
12 ethnic groups backing us in our desegregation, for example.
13 Totally inappropriate for anything here in Michigan or
14 something in Boston. We have a variety of situations that
15 need to be considered in light of their evolving realities.
16 Q Do I understand from your answer then it would depend on
17 perhaps the more regional demographics; that would be one
18 factor?
19 A That's one factor that should be considered definitely.
20 Q So, for example, whatever the ethnic mix here in the
21 state of Michigan might be, then the University of Michigan
22 should pay attention to that in terms of discerning or
23 determining what might be an appropriate racially diverse
24 class?
25 A I think if you have professional schools training your
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202
1 legislators and your leaders that does not look anything like
2 the society that is paying for that school or being served by
3 it, it's something that the faculty should be very concerned
4 by.
5 Q Would you be in favor of eliminating the LSAT test from
6 consideration?
7 A No.
8 Q Why not?
9 A I think it gives some information. I'm a researcher. I
10 never give up any kind of information voluntarily. I think the
11 importance is using this appropriately and using it in a way
12 that makes sense and as one of the things that you consider in
13 admissions.
14 Q Would you be in favor of, because of the statistical --
15 can we agree about something? I mean when you talk about the
16 historic inequity or the, yeah, the unequal preparation due to
17 discrimination, discrimination by the state and agencies and
18 society in general because of the unequal preparation for
19 certain groups as compared to the majority, would you be in
20 favor of deemphasizing the LSAT for those groups as compared to
21 the White students or Asian American students?
22 A Well, my general position on standardized tests, and we
23 do have this book coming out on standardized testing, is that
24 it provides information. The information it provides is
25 relatively modest, and it should be used in a modest fashion
Paul Orfield - Cross
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203
1 for everyone. It shouldn't be used as an absolute selector for
2 anyone, as the LS -- as the Law School Admissions Council
3 strongly recommends.
4 We should use it also to diagnose problems. So if
5 we have educational needs, we should define them and we should
6 solve them through the use of tests. We should never use it
7 to determine a person's absolute life chances. It's not
8 adequate, it was not designed to do that, the testing industry
9 does not support doing that, and I believe it's an unethical
10 way to use those tests.
11 Q I don't think that anybody in this courtroom has taken a
12 different position from that. My question to you is this. Do
13 you favor because of the unequal preparation that exists --
14 A My answer --
15 Q Excuse me. Let me just finish.
16 A Okay.
17 Q Because of the unequal educational preparation you've
18 testified about at length, would you be in favor of evaluating
19 the tests, LSAT tests, SAT, ACT tests differently for those
20 groups that have suffered this discrimination?
21 A No, I'm in favor of not relying heavily on these tests
22 for any group and for giving that information to the faculty
23 committees and the admissions committees that review the
24 student's entire file. That gives really the best information
25 that can be had about that student's promise and possibilities
Paul Orfield - Cross
TUESDAY, JANUARY 23RD, 2001
204
1 and not proscribing any statistical amount you use this
2 particular test.
3 Q Do you think the test ought to be -- if you're going to
4 use a factor, whatever it be, be it leadership, be it letters
5 of recommendation, be it outside activities, be it an LSAT
6 test, be it a grade point average, do you believe those should
7 be fairly applied to each applicant regardless of his or her
8 race?
9 A I think that if you actually serve on an admissions
10 committee and you actually talk about files of students and
11 review all of the material you have, you realize people are
12 trying to think of an entire person. They are not trying to
13 say let's look at this little bit and this little bit and get
14 15 percent for this and 10 percent for that. They are saying
15 is this a student who would add to our class, is this a student
16 who would add to our profession. I think that's the way we
17 ought to look at all of these things. I believe in looking at
18 every source of information we have about students.
19 Q Incidentally, do you take a position one way or the other
20 as to whether or not the LSAT is biased against any particular
21 ethnic group?
22 A I take no position on that.
23 Q You certainly don't take the possession that --
24 A I'm not an expert on test bias.
25 Q You mentioned, you mentioned something, and I'm not sure
Paul Orfield - Cross
TUESDAY, JANUARY 23RD, 2001
205
1 whether this was in relation to Texas or California, Professor
2 Orfield, so maybe you can let me know. You talked about a drop
3 in applications that appeared to be almost half. Was that in
4 Texas or was that in -- and I believe it was law school
5 applications. Was that in Texas or California?
6 A That was a statewide change in applications to all of the
7 public law schools in Texas.
8 Q Okay. So, in other words -- and this was what year after
9 Hopwood?
10 A This was two years after Hopwood.
11 Q Two years after Hopwood. And I believe you expressed the
12 view that those dropped because people just lost hope. Was
13 that the term you used?
14 A Yes. I had many students from California who were in
15 graduate school at Harvard at the time who told me their
16 younger brothers and sisters were changing their plans.
17 I also was invited to the University of Texas at
18 Austin Law School for a session on testing, and a number of
19 young students, particularly Latino and African American
20 students, told me the same thing about their own family
21 members and friends in their communities. So I really do
22 believe, at least in the immediate aftermath of these
23 decisions, there's a belief that the door has been shut, and
24 universities try to overcome that.
25 Q In other words, students said because they are no longer
Paul Orfield - Cross
TUESDAY, JANUARY 23RD, 2001
206
1 going to consider my race I'm not going to make an application
2 to the school?
3 A Students took this as an indication the schools did not
4 want to have minority representation. They didn't take it
5 as -- they took it as the door being slammed in their face.
6 Q In other words, passing a law as in California --
7 A Yes.
8 Q -- which says we are simply not going to consider race
9 when it comes to college admissions, for example, students in
10 your view interpreted that as slamming the door on their
11 opportunity to attend those schools?
12 A These were perceived as anti-Black and anti-Latino
13 measures by people who were intentionally polarizing the state
14 on these issues, and they were perceived quite dramatically as
15 efforts to limit opportunities. You can see Boalt data on
16 this. It's one reason there is no longer a Republican
17 administration in California. There was a tremendous anger
18 about these propositions and a belief that they were directed
19 in a hostile way against minority communities.
20 Q You talked about the efforts that Boalt and UCLA were
21 making after Prop 209, and I believe you were referring to the
22 law school?
23 A That's correct.
24 Q You were talking about the recruitment at Boalt and then
25 the effort to use socioeconomic disadvantage?
Paul Orfield - Cross
TUESDAY, JANUARY 23RD, 2001
207
1 A Yes.
2 Q And in fact socioeconomic disadvantage doesn't help
3 because many of the African American students that came in
4 weren't socioeconomically disadvantaged, correct?
5 A They weren't disadvantaged in terms of average income.
6 They were disadvantaged in lots of other ways that we described
7 earlier in my testimony.
8 Q But the disadvantage you talk about in your testimony is
9 educational preparation. That's what you were talking about.
10 A Well, there's also other disadvantages that we talked
11 about in middle class minority communities.
12 Q But in terms of using socioeconomic disadvantage as
13 one way to increase the diversity in the class, it just simply
14 didn't work because there's, what, too many poor White and
15 Asian students as well?
16 A Well, there's many people who fall in an economically
17 disadvantaged category who really have very good prospects in
18 this society but who are temporarily economically
19 disadvantaged. Recent immigrants from Asia with higher
20 education in their native country are primary members of that
21 class. So are recently divorced White suburban families, for
22 example, whose income goes way down but who have every promise
23 of making it and every advantage in their background. People
24 who are sick look poor in a given year even though that's not
25 their past or their future. There's many, many reasons why
Paul Orfield - Cross
TUESDAY, JANUARY 23RD, 2001
208
1 people can be in an economic category that does not indicate a
2 long-term disadvantage. So you get a lot of things that you
3 don't think about when you just go into poverty or income as a
4 category.
5 Q As a matter of fact, earlier today you used the phrase
6 temporarily poor?
7 A Yes.
8 Q And you indicated that there were a lot of Whites and
9 Asians who were temporarily poor but in fact, you know, they
10 may get in under a socioeconomically disadvantaged category but
11 then later they are going to climb out of that?
12 A Yes.
13 Q Isn't the same phenomenon true in the African American
14 community and the Latino community; there are temporarily poor
15 within those communities as well?
16 A Well, there's been a lot of research done here at the
17 University of Michigan on this exact issue, which shows that if
18 you look at the long-term persistent poverty Blacks and Latinos
19 are vastly more likely to be in that than Whites or Asians.
20 It's not true, what you say. It's not randomly distributed at
21 all. So if you look at poverty at any given cross-section,
22 there are lots of Whites and quite a few Asians in it, recent
23 immigrants particularly, but if you look at long-term
24 persistent poverty, it's very heavily weighted towards African
25 Americans, Latinos and Native Americans.
Paul Orfield - Cross
TUESDAY, JANUARY 23RD, 2001
209
1 Q I certainly don't want to argue with you, but isn't it
2 true that there are African American and Latino families who
3 are temporarily --
4 A Oh, of course. All groups experience some mobility, but
5 it's very unequally distributed.
6 Q Now, another impact -- you talked about recruiting at
7 Berkeley. Do you know what view the students and faculty at
8 Berkeley took after Prop 209 in terms of trying to recruit
9 Black students to come there?
10 A Well, I just had a student who was one of those student
11 recruiters who just finished a paper for this semester so I've
12 read about this quite a lot. There were a number of student
13 recruitment groups that were set up to work at Berkeley. The
14 University did give them some funding to go out and do some
15 recruiting, although it's beginning to be cut back now and
16 it'll probably be illegal next year. I know there were some
17 students who initially took the position of telling students
18 they shouldn't come, but basically for some time now there's
19 been a pretty heavy outreach effort.
20 Q But you were aware of the groups of students who did
21 actively discourage Black applicants and Black admittees
22 from enrolling at Berkley?
23 A I think that was only the first year. We are now talking
24 about four years later.
25 Q Have you read the depositions of any of the other
Paul Orfield - Cross
TUESDAY, JANUARY 23RD, 2001
210
1 witnesses in the case, for example, a UCLA student, African
2 American female who just graduated?
3 A No, I have not.
4 Q All right. Would it surprise you that UCLA was using an
5 active outreach as well, trying to bring in students, attract
6 African American students from schools all around the country
7 and bring them to the campus for the purpose of trying to
8 encourage them to enroll?
9 A I don't know what their outreach was.
10 Q And would it be helpful in your view that when they bring
11 students in for those types of sessions that a current UCLA
12 student who is African American would stand up and tell them
13 that it was not a place that they would want to be?
14 A I don't think that would help a successful outreach, no.
15 Q Do you know if that in fact happened?
16 A I have no knowledge of that.
17 Q It certainly wouldn't be what the school would want to
18 have said about the school if they are trying to attract more
19 students, correct?
20 A It would be a dean's nightmare.
21 MR. PURDY: I apologize, Your Honor, but I --
22 THE COURT: That's okay.
23 MR. PURDY: Unlike Mr. Payton, this isn't for
24 effect. I'm actually --
25 MR. PAYTON: Then what's it for?
Paul Orfield - Cross
TUESDAY, JANUARY 23RD, 2001
211
1 THE COURT: We have a local attorney, when he needs
2 some time to think, he's got about six pens, really nice, nice
3 fountain pens up here, and we all need time to think, there's
4 nothing wrong with that, but it's funny, and that's the thing
5 the jury talks about, I mean he tries a lot of cases in here,
6 they always talk about all of his pens. He'll take one out
7 and then he'll start writing with that one, and then he needs
8 a little time so he'll cover it up, fool around with it and
9 put it back and then take another one out. They are really
10 beautiful pens.
11 MR. PURDY: I'll bring some more pens in tomorrow.
12 THE COURT: That's the thing the jury talks about
13 most. They hate that. They say why doesn't he just take a
14 couple of minutes and think instead of playing with those
15 pens.
16 Those of you who are in law school, I don't know how many
17 attorneys who have ever done it before, where they video you
18 arguing a case. I remember the first time they did that to
19 me, you know, I said oh, man, my mannerisms, you know, wait a
20 minute. It's probably the best way to learn. They should
21 really do that with judges, too, I guess.
22 BY MR. PURDY:
23 Q Professor Orfield, we have had admitted into the record
24 your report, and I'd like to ask you to turn to Exhibit 178.
25 Let me see. I can help you with that.
Paul Orfield - Cross
TUESDAY, JANUARY 23RD, 2001
212
1 THE COURT: 167?
2 MR. PURDY: 178, Your Honor.
3 THE WITNESS: I believe I have that one.
4 BY MR. PURDY:
5 Q These are, Exhibit 178, when we had met for your
6 deposition and you were telling us about the report that you
7 had prepared and the survey of the Michigan and Harvard law
8 students, you indicated that there was a list of actual
9 verbatim comments received from these students, correct?
10 A That's correct.
11 Q And that's what is shown in Exhibit 178, is it not?
12 A Yes, that's right.
13 (Plaintiff's Exhibit 178, Student Comments from
14 Professor Orfield's Report, identified.)
15 MR. PURDY: Your Honor, we would offer Exhibit 178.
16 THE COURT: I'm sure no one has any objection.
17 Proceed.
18 (Plaintiff's Exhibit 178 received into
19 evidence.)
20 BY MR. PURDY:
21 Q In terms of the diversity that the students at Harvard
22 and Michigan have found to be most, most meaningful to their
23 educational experience, do you recall reading numerous of the
24 hundreds of comments that are there where students indicated
25 that it was socioeconomic diversity, class diversity that
Paul Orfield - Cross
TUESDAY, JANUARY 23RD, 2001
213
1 mattered more than racial or ethnic diversity?
2 A Let me describe these comments, first of all.
3 Q Sure.
4 A These are comments that were -- we asked some open-ended
5 question at the end, I believe, of the survey and the students
6 could write in anything they wanted. Now, the reason we didn't
7 tabulate these comments in any way and just quoted a few as
8 illustrations in the course of the report was of course they
9 are not representative of anything. Probably students who have
10 stronger views one way or another might write something into
11 this survey, but it wouldn't be a representative sample in any
12 way of anything so you can't conclude anything from these
13 comments. We just used them to explain some of the results
14 that were presented, to give illustrations. But from looking
15 at the comments all you can conclude is that somebody said that
16 on the phone. You can't conclude how many students or whether
17 it was a prevailing view or anything of that sort.
18 Q Well, you did at least quote several of the comments in
19 your report, did you not?
20 A We quoted several, but I only used them to illustrate
21 possible explanations of data but not as data.
22 Q But you do recall, and I don't want to --
23 A And I did mention this socioeconomic thing in the report,
24 also, as you probably recall.
25 Q Well, you obviously have reviewed these comments, have
Paul Orfield - Cross
TUESDAY, JANUARY 23RD, 2001
214
1 you not?
2 A I have.
3 Q And there are several --
4 A Yes, there are a number of them.
5 Q A number of them where the students indicate -- and let
6 me just finish.
7 A Yes.
8 Q -- where the diversity that was most important to them
9 was not based on race or ethnicity but was based on
10 socioeconomic differences?
11 A Some of the students did say that.
12 Q And in fact --
13 A And in fact I believe that socio and economic diversity
14 is important as well as racial diversity.
15 Q Let me ask you to turn to what is GL0029. It would be
16 the 29th page of that exhibit, please, sir.
17 A 29?
18 Q Yes, sir.
19 A Yes, okay.
20 Q Did you also -- and I'll just direct your attention
21 towards the bottom of the page. Do you recall that there were
22 several students that indicated that one of their complaints
23 was that all of the kids, both at Harvard and at Michigan, came
24 from privileged backgrounds whether they were Black or Hispanic
25 or White?
Paul Orfield - Cross
TUESDAY, JANUARY 23RD, 2001
215
1 A Yes.
2 Q And in fact if you look at the bottom of Page 12, because
3 these comments are very hard, it's towards the bottom, let me
4 see if I can help direct you. I'm sorry, at 29. At 29, I'm
5 sorry.
6 A Okay.
7 Q At the very, very bottom.
8 A Yes.
9 Q Do you see the reference that it says, "Minority students
10 at Harvard tend to be children of doctors, lawyers and
11 academics;" do you see that?
12 A Yes.
13 Q "In the diversity rationale it seems to make little sense
14 that we fail to target the policy of those with the most
15 diverse viewpoints;" do you see that?
16 A Yes.
17 Q And, again, let me ask you to turn to Page 31. Just at
18 the top, the very first comment from a student says, "I think
19 that other kinds of diversity, such as socioeconomic,
20 political, geographic are things that I think are more
21 important at some law schools than they give credit for. I
22 think that the racial diversity is good, but I don't think that
23 they have approached it from the right perspective. The
24 students at our school, Black, White and other colors, tend to
25 come from privileged backgrounds;" do you see that?
Paul Orfield - Cross
TUESDAY, JANUARY 23RD, 2001
216
1 A Yes.
2 Q And this wasn't uncommon; these were common comments that
3 were filtered throughout these comments you received?
4 A You know, as soon as I sent these to you, I knew you were
5 going to use them the wrong way because you can't generalize
6 from these kinds of things. That's why we didn't generalize
7 from any of them, and you have no way of knowing whether these
8 are representative comments. These are just whoever happened
9 to comment on whatever they happened to want to, and they are
10 not a sample of anything. They don't represent the student
11 bodies. There were several students who made this comment. It
12 doesn't say anything about how the students overall felt.
13 Certainly those comments exist, and that's all you can say from
14 these comments.
15 Q Incidentally -- well, strike that.
16 Professor Orfield, let me see if I can break down
17 just a couple of -- I think we've actually touched on this a
18 little bit, but is it your opinion that the use of race at
19 Michigan law school is justified in order to help correct some
20 of the housing problems that you testified about earlier
21 today?
22 A I think the housing problems are a symptom of a very
23 racially stratified metropolitan area and state and that that
24 racial stratification, inequality, segregation, so forth, is a
25 big problem for the entire state, and it's perfectly
Paul Orfield - Cross
TUESDAY, JANUARY 23RD, 2001
217
1 appropriate for the colleges and universities to take that into
2 account and to try to make possible that future generations
3 have less inequality and more ability to live together.
4 Q And I just want to be clear. It's these effects of --
5 the discriminatory effects that occur in these communities, the
6 concentrated poverty that you mentioned, the housing
7 resegregation, the pattern of resegregation, the pattern of
8 resegregation in the schools, it's because of these effects of
9 discrimination that you believe it's appropriate to consider
10 race in the law school admission program?
11 A I think I've answered this question at least 12 times
12 already. I believe that's one of the reasons, and other
13 reasons are educational values, the responsibility of the
14 university to its taxpayers, its own building of a profession
15 that will be viable in the future. I think all of these are
16 important, legitimate considerations for institutions of higher
17 education.
18 Q You also this morning, I think it was fairly early in
19 your testimony, were telling us the anecdote about your
20 colleagues at Harvard --
21 A Yes.
22 Q -- colleagues of color, and I don't know whether you said
23 they were African American or what, but whose kids in K through
24 12 --
25 A Yes.
Paul Orfield - Cross
TUESDAY, JANUARY 23RD, 2001
218
1 Q -- presumably had been tracked by race into the wrong --
2 A Yes.
3 Q -- classes. And you would agree, would you not, that
4 using race to track a person would be wrong?
5 A Yes.
6 Q There was the, the chart, Exhibit 197. I'll be happy to
7 give it to you because I believe you mentioned that there were
8 a percent of schools, in fact I think you said a substantial
9 percent of schools, that didn't fall within that chart?
10 A Yes.
11 Q What percent of schools wouldn't fall within that chart?
12 A Well, about half of the schools in the country are
13 overwhelmingly White, 0 to 10 percent Black and Latino and --
14 about 10 percent are very segregated Black and Latino, and the
15 rest of the schools, probably around 40 percent, fall between
16 those two. Okay.
17 Q Okay. All right.
18 MR. PURDY: Your Honor, if I may have just a moment
19 to confer with colleagues, I may be done.
20 THE COURT: Sure.
21 BY MR. PURDY:
22 Q Incidentally, Professor Orfield, in terms of looking for
23 systems, admission systems that could be used to replace those
24 where race is consciously considered in the process, you have
25 looked at various alternatives, have you not?
Paul Orfield - Cross
TUESDAY, JANUARY 23RD, 2001
219
1 A Yes, I have.
2 Q And, incidentally, you made reference to the Texas system
3 and that they use a -- they have actually admitted applicants
4 with much lower test scores under that system?
5 A That's correct.
6 Q Isn't it true that Texas in fact doesn't require a test
7 score at all in order to be admitted under the 10 percent plan?
8 A They do not require a test score to be admitted, but they
9 do require that you -- well, they do require a test score to
10 graduate from high school and they require a test score to go
11 behind your first term at the university.
12 Q The test score that they require to graduate from high
13 school is a high school standard at Texas, it's not the ACT or
14 the SAT?
15 A That's correct.
16 Q All right. And they don't require an SAT or ACT in order
17 to qualify under the 10 percent plan, correct?
18 A That's correct. They have a test called the TASP.
19 Q And that's, again, that's the high school --
20 A No, that's not a high school, it's a college test.
21 Q T-A-S-S is a college test?
22 A T-A-S-P.
23 Q I'm sorry. In order to graduate from high school, they
24 have to pass the T-A-S-P?
25 A No, they have to pass the TASS to graduate from
Paul Orfield - Cross
TUESDAY, JANUARY 23RD, 2001
220
1 high school, the TASP to stay in college beyond their first
2 term or so.
3 Q And in Florida the plan that has been proposed is a
4 20 percent plan?
5 A Yes.
6 Q Would that also permit students from Florida high schools
7 who graduate in the top 10 percent to be admitted into the
8 University of Florida system without the need for a
9 standardized test?
10 A Well, nobody really knows quite how it's going to work
11 yet because it doesn't take effect until next year, and we have
12 been interviewing people who tell us that there is tremendous
13 confusion about what it actually means so far. Two weeks from
14 now we probably can answer this question after we do some
15 interviews, but not right now. I don't think anybody can
16 answer it right now.
17 Q Fair enough. Have people, colleagues of yours at the
18 Harvard Civil Rights Project also looked into alternatives to
19 using race in college and university admissions?
20 A Certainly.
21 Q Is it Mindy Cornhaber [sp]?
22 A Yes.
23 Q She's looked into this, has she not?
24 A Yes.
25 Q And she's come up with several alternatives to relying
Paul Orfield - Cross
TUESDAY, JANUARY 23RD, 2001
221
1 upon tests and grades, correct?
2 A Yes.
3 Q Have you ever done any evaluation to determine whether
4 any of those policies might work in the law school context?
5 A Well, the only way social scientists can evaluate
6 something is to have it existing someplace where it can be
7 observed and measured, and since we don't have them, we can't
8 evaluate them as yet, but I'm in favor of a broad variety of
9 experiments with these issues.
10 Q So is it fair to say that you don't know whether or not
11 some of the alternatives, the race-neutral alternatives that
12 Ms. Cornhaber has evaluated would work if put into place in
13 Michigan?
14 A I don't think anybody who is a researcher could tell you
15 they knew the results of something that hadn't been tried yet.
16 All I can tell you is that, of all of the things that have
17 actually been tried, we haven't seen anything that would work
18 and that there would be no way to make a policy saying that
19 there is an alternative that would work without -- you know,
20 there is no evidence that there is an alternative that would
21 work out there as yet, and if you have to make a judgment now
22 on the basis of what is actually known, you would have to say
23 there isn't. Does that mean that nobody would ever possibly
24 discover anything that would work? Nobody could ever tell you
25 that.
Paul Orfield - Cross
TUESDAY, JANUARY 23RD, 2001
222
1 Q Have you recommended that any law school try any of the
2 policies that your colleague at the Harvard Civil Rights
3 Project has --
4 A Well, she wasn't really writing about law school
5 admissions. She was writing about undergraduate admissions.
6 Q But my question is have you suggested that any law school
7 take a look at those?
8 A No law school has asked me. If they do, we'll, certainly
9 send Cindy out to talk them.
10 MR. PURDY: Your Honor, that's all I have. Thank
11 you.
12 THE COURT: Anything else?
13 MS. MASSIE: Just one second.
14 We have nothing further, Your Honor.
15 THE COURT: Thank you, Professor. I appreciate it
16 very much.
17 THE WITNESS: Thank you, thank you, and I appreciate
18 the loan.
19 THE COURT: My pleasure.
20 Okay. Your next witness.
21 MS. MASSIE: Judge, Mr. Purdy had thought that we
22 would not be able to call another witness today and so --
23 THE COURT: It's up to you. If you have that
24 witness here, I can work late tonight if you guys want to work
25 late to accommodate that witness.
Paul Orfield - Cross
TUESDAY, JANUARY 23RD, 2001
223
1 MS. MASSIE: No, my understanding is she had left on
2 the basis that she would not be able to testify today.
3 THE COURT: That's fine. I thought she would be
4 here, and I didn't want her whole day to be goofed up again so
5 I thought we could get her on and stay late and get her done.
6 That's fine. I can't work late tomorrow, but I can work late
7 today.
8 That's fine. Okay. We'll convene until tomorrow at 9:00.
9 MR. PURDY: Your Honor, may I just ask a question,
10 do we have an understanding that we are done tomorrow for the
11 week? That's the question.
12 THE COURT: That was my understanding, that you all
13 agreed that we would be off Thursday and that we would
14 reconvene on the Tuesday the following, Tuesday the 6th,
15 whatever, I think it's the 6th. We will reconvene at 9:00 on
16 that morning and then go until we finish. The only caveat is
17 we would have to take the 14th off if we go that far.
18 Okay. Thank you.
19 (Proceedings adjourned at 4:25 p.m.)
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