In its continuing efforts to keep the public informed about the ongoing admissions litigation, the University of Michigan makes these transcripts of the trial proceedings in Grutter v Bollinger, et al., Civil Action No. 97-75928 (E.D. Mich.), available to the University community and general public. As is often the case with transcription, some words or phrases may be misspelled or simply incorrect. The University makes no representation as to the accuracy of the transcripts.
1
1 UNITED STATES DISTRICT COURT
2 FOR THE EASTERN DISTRICT OF MICHIGAN
3 SOUTHERN DIVISION
4
5 BARBARA GRUTTER,
6 For herself and all others
7 Similarly situated --
8 Plaintiff,
9 -v- Case Number: 97-CV-75928
10 LEE BOLLINGER, JEFFREY LEHMAN,
11 DENNIS SHIELDS, and REGENTS OF
12 THE UNIVERSITY OF MICHIGAN,
13 Defendants,
14 And
15 KIMBERLY JAMES, et al.,
16 Intervening Defendants.
17 ------------------------------------/ VOLUME 10
18 BENCH TRIAL
19 BEFORE THE HONORABLE BERNARD A. FRIEDMAN
20 United States District Judge
21 238 U.S. Courthouse & Federal Building
22 231 Lafayette Boulevard West
23 Detroit, Michigan
24 THURSDAY, FEBRUARY 8, 2001
25
2
1 APPEARANCES:
2
3 FOR PLAINTIFF: Kirk O. Kolbo, Esq.
4 R. Lawrence Purdy, Esq.
5
6 FOR DEFENDANTS: John Payton, Esq.
7 Craig Goldblatt, Esq.
8 On behalf of Defendants.
9
10 George B. Washington, Esq.
11 Miranda K.S. Massie, Esq.
12 On behalf of Intervening Defendants.
13
14 COURT REPORTER: Joan L. Morgan, CSR
15 Official Court Reporter
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1 I N D E X
2
3 WITNESS: PAGE:
4 WALTER ALLEN
5 Cross Examination by Mr. Kolbo 5
6 Re-Direct Examination by Ms. Massie 110
7
8 EUGENE GARCIA
9 Direct Examination by Mr. Washington 125
10
11 ERIC FONER
12 Direct Examination by Ms. Massie
13 Cross Examination by Mr. Richter
14 Cross Examination by Mr. Payton
15
16 E X H I B I T S
17 MARKED RECEIVED
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4
1 Detroit, Michigan
2 Thursday, February 8, 2001
3 (At or about 9:10 a.m.)
4 -- --- --
5 THE COURT: You may be seated. Thank you. Good
6 morning.
7 MS. MASSIE: Judge, a rescheduling thing. I think
8 particularly with Professor Allen's cross exam starting now,
9 we should plan on starting David White tomorrow morning,
10 go from Professor Allen into Dean Garcia of the Berkley
11 Graduate School of Education, and then into Professor Eric
12 Foner today, and I think that will pretty much take up the
13 day.
14 THE COURT: And tomorrow is who?
15 MS. MASSIE: Tomorrow we start with David White,
16 who will testify about race and the LSAT.
17 We also have Rick Lempert who has done a study of
18 minority and white grads of the U of M Law School, and
19 Frank Woo, who is an expert on Asian Americans and
20 affirmative action.
21 THE COURT: Great. Okay.
22 Good morning, Mr. Kolbo.
23 MR. KOLBO: Good morning, Your Honor.
24 Good morning, Dr. Allen.
25 THE WITNESS: Good morning, Attorney Kolbo.
5
1 CROSS EXAMINATION
2 BY MR. KOLBO:
3 Q We have met before?
4 A Yes.
5 Q I want to start out by asking you some questions about
6 the methodology of the focus groups that you assembled at
7 Michigan and elsewhere.
8 First of all, there are -- among the schools that
9 you looked at, three of them are quite large institutions;
10 correct?
11 A That's true.
12 Q University of Michigan, Michigan State, and University
13 of California Berkley are quite large undergraduate
14 institutions, is that correct?
15 A All the institutions are sizable, yes.
16 Q And correct me if I'm wrong, but my understanding is
17 that Michigan, the undergraduate school, the principal
18 undergraduate school has about 20,000 students or so,
19 does that sound about right?
20 A I would have to check the figures, but I can take your
21 word for it.
22 Q Okay. And Berkley has about just a few more, between
23 20,000 and 23,000 students, roughly, undergraduate, would
24 that be correct?
25 A Probably seems appropriate.
6
1 Q Michigan State a little larger, around 30,000-some
2 students at their undergrad school, seem fair?
3 A I haven't studied the figures, so I'll have to trust
4 your figures.
5 Q Harvard, around 6,000 or 7,000 students, undergraduate
6 school. If I'm right, it looks like you were conducting
7 focus groups at institutions that had, at the undergrad,
8 these undergraduate institutions, between 75,000 and 80,000
9 students, would that be -- does that sound reasonable?
10 A As I said, I have not looked at those figures, so
11 I'll have to trust your numbers.
12 THE COURT: Your mike may not be on. Everybody
13 came, they might as well be able to hear us.
14 BY MR. KOLBO:
15 Q Okay. About 75,000 to 80,000 students, if I'm right,
16 in terms of the number of students at these undergraduate
17 institutions, and am I correct that the number of students
18 in your focus groups all together, for all of the focus
19 groups together at the undergraduate level, you looked --
20 you had 68 students; is that right?
21 A We had 68 students in the focus groups and we had
22 another 200 surveys from those campuses, and as I had
23 mentioned yesterday, in the past I have done research that
24 included 5,000 African American students randomly sampled
25 nationally, and in the upper midwest another study of
7
1 2,500 students sampled nationally.
2 Q I was asking about your focus group work.
3 A Well, in terms of the focus group numbers, that's a
4 correct number.
5 Q That's correct, right, 68?
6 A But I was trying to give you some context.
7 Q Sure. I appreciate that, but I want to focus on some
8 of these questions and then we will talk about some of these
9 other issues perhaps later, but 68 students in the focus
10 group, and you said 200 surveys, right?
11 A That's correct.
12 Q And did that include the 68 students?
13 A Yes, it did.
14 Q So another 130 or so students who filled out surveys
15 and did not attend focus groups?
16 A That's correct.
17 Q And about half of the focus groups at the undergrad
18 level were University of Michigan campus, right?
19 A Purposely so, yes.
20 Q So about 30-some students out of 125,000 were included
21 in the focus groups at the University of Michigan undergrad
22 school, true?
23 A That's true.
24 Q And of the remaining, another 30 or 40 students were
25 in the focus groups out of the approximately 40,000 to
8
1 50,000 at these other undergraduate institutions; correct?
2 A Yes.
3 Q Two focus groups at Harvard?
4 A That's correct.
5 Q About a dozen students or so?
6 A Yes.
7 Q Out of 6,000 or 7,000, true?
8 A The 6,000 or 7,000, as I said, I'll trust you for that
9 number. I'll have to again check it in order to, you know,
10 assert that it's a correct figure, but the figure for the
11 focus groups sounds like it's on target.
12 Q About a dozen out of the entire Harvard undergrad
13 campus at the focus groups?
14 A That's probably correct.
15 Q And you had three focus groups at Berkley, so that's
16 about twelve to fifteen students at that campus?
17 A I would have to look at the numbers, because those
18 numbers sound a bit lower for me. Do you want me to give
19 you an accurate count on the focus groups at Berkley?
20 Q I think we have -- - is it report page seven, am I
21 right, following page seven? I guess we can be specific
22 about this.
23 A I'll have you help me.
24 THE COURT: Page 7 in Exhibit 157?
25 MR. KOLBO: It's actually right behind figure two.
9
1 It's an unnumbered page.
2 BY MR. KOLBO:
3 Q Now, these we don't have the identification of the
4 school here, do we?
5 A No.
6 Q But maybe you know what they are.
7 A I do.
8 Q And so from Michigan State, we have one focus group
9 from Michigan State, and which one is that?
10 A Correct. The one focus group from Michigan State --
11 just a second, I'll check my files.
12 The Michigan State focus groups are twelve.
13 Q Number twelve?
14 A Yes.
15 Q So that's two people?
16 A Yes.
17 Q Two people out of whatever the size of that campus is,
18 consisted of the entire focus group at the Michigan State
19 University?
20 A And I should add we ended up collecting a larger
21 number of surveys from Michigan State.
22 Q Okay. They are part of the 200?
23 A Yes, they are.
24 Q But for the focus group, just two students?
25 A Correct.
10
1 Q One man and one woman?
2 A Correct.
3 Q And then at Berkley you had three focus groups.
4 Which three are those?
5 A The three focus groups at Berkley, the group was
6 number ten, number six and number four.
7 Q Okay. So number four has five people in it?
8 A Correct.
9 Q All African American?
10 A Yes.
11 Q Number six has seven people in it, correct, all
12 Latino?
13 A All Latino.
14 And by the way, they were purposely selected to be
15 restricted to those groups.
16 Q Sure. And I'll ask you about that, but so far, twelve
17 students so far; correct?
18 A That's right.
19 Q And then the third one has got six in it, so we have
20 got -- and I hate doing math up here publicly, but 18?
21 A Sounds correct.
22 Q So 18 students were in the focus groups at the
23 University of California at Berkley?
24 A Sounds correct.
25 Q Out of the entire undergrad campus there?
11
1 A That's correct.
2 Q And two were at Harvard. Which two were those?
3 A The two Harvard focus groups are number three and
4 number seven.
5 Q Okay. Number three had six people in it, all African
6 American, and number seven had five in it?
7 A Number three was an African American focus group and
8 similarly with number seven it was a Latino focus group.
9 Q So a total of 11 students were involved in the Harvard
10 focus group; correct?
11 A Correct.
12 Q The average size of these groups, it looks like it's
13 five to six students; true?
14 A Average size of a focus group that's effective has
15 to be between five and eight, no more than ten students,
16 otherwise, you don't have the discussion.
17 Q And at the -- I'm going to try to talk about these
18 kind of separately, but while we're talking about numbers,
19 the total number in addition to those undergraduate focus
20 groups, you had some law school focus groups, as well?
21 A That's correct.
22 Q Those were all at the University of Michigan Law
23 School?
24 A Exactly.
25 Q There were a total, as I understand it, of 31 students
12
1 on the figure behind page 60, I think, of your report?
2 A That is a correct number, I think. It sounds correct.
3 Q And that's 30 out of, I don't know, what is it, about
4 1,000 students all together at the University of Michigan
5 Law School?
6 A Again, that's a figure I don't necessarily remember.
7 Q Now, and you mentioned, you just testified that these
8 were intentionally by and large racially segregated focus
9 groups, correct, that was by design?
10 A I'm pausing because of the term of segregated focus
11 group. These were targeted focus groups, that's the term
12 that I would prefer, because segregation for me just
13 suggests the old problematic heritage of legal exclusion,
14 and in fact, we did focus groups across each of the racial
15 groups and each of the ethnic groups and each of the gender
16 groups and in fact were trying to standardize the groups,
17 which is a statistical procedure; that is, you try to
18 control for variation in terms of other external
19 characteristics, so thus we targeted the groups and
20 organized them in terms of, in some instances, in most
21 of the instances, in terms of shared racial identity.
22 But you are aware, I'm sure, that there were several
23 of the groups that were purposely mixed race and mixed
24 ethnicity.
25 Q But they weren't -- you mentioned the word legally
13
1 segregated after, and of course I didn't mean that, but
2 they were intentionally or purposively segregated by race,
3 correct, as part of the design of this case?
4 A And again, I object to the term, segregated.
5 They were a targeted group. They were a group that was
6 standardized and they were a group that was assembled with
7 the idea and goal of assembling them around those common
8 identities.
9 Q Okay. Well, I do understand you're in favor of,
10 you believe we ought to have integrated racial campuses,
11 correct?
12 A Absolutely.
13 Q Would you agree with me?
14 A And an integrated society, and the two are linked, if
15 I might.
16 Q And would you agree with me that most of these focus
17 groups were not racially integrated, were they?
18 A And as I have spent some time explaining, anticipating
19 that perhaps such an incorrect assessment might be made,
20 the groups were, as previously mentioned in several cases,
21 specifically targeted and organized around common or shared
22 racial or ethnic identity, in one case, in another case or
23 category around shared gender identity, but as you do recall
24 from looking at the data and as I said a moment ago, some of
25 those groups were purposely mixed, but they were mixed in
14
1 terms of race and ethnicity, but with the members, for
2 example, sharing common gender status.
3 Q Okay. I won't use the word in my next question,
4 integrated or segregated, but only two of the twelve
5 groups were racially mixed; correct?
6 A That's probably correct.
7 Q And only one of the groups was all white; correct?
8 A That's correct. Well, no, no, that's not correct.
9 You mean -- which are you talking about, are you talking
10 about the law school or the undergrad?
11 Q I'm sorry, I shouldn't go back and forth. I was
12 looking at the figure for the undergrad schools, only one
13 of those twelve was --
14 A One of the twelve for the undergrad.
15 Q And while we are on the subject, I guess --
16 A And one for the law schools.
17 Q Okay. So one of each?
18 A Yes.
19 Q Each group was all white. Do you think there would
20 have been some benefit to have seen what the interaction
21 might have been with more mixing of the races in these focus
22 groups?
23 A Obviously, the more information you get the better,
24 but given as I mentioned yesterday, limitations in terms of
25 resources, limitations in terms of time and the specific
15
1 focus of this research, that goal was one that was of lesser
2 priority than the advantages that would accrue from having
3 students in a group of other students who are like
4 identified and then benefitting from their feeling free to
5 discuss the kinds of issues that are of importance and note
6 to them.
7 And I would -- as an aside to that, of course, I had
8 taught at the University of Michigan for some ten years, I
9 have been teaching at UCLA for another twelve, and I have
10 been teaching for twenty-five years plus, and needless to
11 say, my classes have had exactly the kind of mix that you
12 describe, and so I have learned some lessons from that
13 mixture, as well, and from the interaction of the sort
14 you're referring to.
15 Q One of the things you just mentioned was that, as I
16 understand, that one of the reasons you chose to organize
17 these groups the way you did was that the students would
18 feel free to say what they are thinking?
19 A Precisely.
20 Q And is your opinion then that the students would feel
21 free to say what they are thinking in groups that were not
22 racially mixed?
23 A I definitely think that's true.
24 Q How about if you had a racial group that was half
25 and half, half minority, half white, say, would, in your
16
1 opinion, would students of all, both races, feel free to
2 express what's on their mind in that situation?
3 A I think as I have pointed out yesterday, if you
4 move to a situation where you have closer to equal
5 representation, then indeed you would likely get some
6 discourse and exchange between equals, but I don't know
7 that I'm following the point that you're making.
8 Q Well, I'm not -- you know, I'm not asking you to
9 accept any point that I'm making, but I'm just wondering
10 whether students would, in your opinion, would feel free
11 to speak their minds as you don't think they would be in
12 some circumstances, as long as, say, there was equal
13 representation of the group?
14 A I think they would feel free to say some things, but
15 there are some utterances that no matter what the mix in the
16 room, I mean, in terms of the proportionality in terms of
17 the two racial groups, for example, black and white, that
18 students would not feel free to say, compared to the sense
19 of liberty that they would experience in, say, an all white
20 group, and it's, I think, a fairly straightforward reality,
21 because if we think about our lives, if you think about your
22 life, I mean, we talk differently in -- depending on the
23 racial group that we are a member of.
24 I mean, if we are in a homogeneous racial group,
25 then some of our comments about people of other races are
17
1 different than what they might be, than what they would
2 likely be in the presence of people of that race, and
3 similarly, the point holds with gender.
4 Q You mentioned something about an all white group.
5 What about if you had an all black group, does that make
6 the discussion freer or less?
7 A Absolutely. That's exactly the point I'm trying to
8 make.
9 Q How about a black group that has a few white students,
10 would black students feel, in your opinion, free to express
11 themselves then?
12 A I would have to think about that a bit and I would
13 have to look at some research that has looked at questions
14 of proportionality and how that influences, either inhibits
15 or enhances interaction, so I'm not quite sure how to answer
16 that question.
17 Q What it sounds like is your opinion, but correct me if
18 I'm wrong, that mixing the races to any extent, there's some
19 inhibiting of people of different races feeling free to
20 express what is on their mind; is that fair summary?
21 A That's very fair in this society, because as you know,
22 race talk is very difficult for us as a society, and it
23 becomes even more difficult when we have other racial group
24 members in the room, but needless to say, those are lessons
25 we need to learn, and to the extent that you look at work
18
1 of someone like Silveri Atado, and you see the sort of
2 variations in exchanges that occur as a result of the mix
3 of racial proportions in a room, then you come away feeling
4 encouraged, if you will, that as students do have a way of
5 working through these issues, but those tensions are there,
6 because race talk, race relations in this society are very
7 difficult. And challenging is the word I should use.
8 Q Let me move on a little bit here.
9 You testified yesterday about the differences
10 between qualitative and quantitative analysis; correct?
11 A Methodology analysis, yes, I did.
12 Q There are differences between those two, there are
13 strengths and weaknesses of both?
14 A Correct.
15 Q What you did with respect to your focus group work is
16 qualitative research; correct?
17 A That's correct.
18 Q Not quantitative; correct?
19 A Correct.
20 Q And I just want to make sure I understand some of the
21 differences, and maybe some of the strengths and weaknesses,
22 as well.
23 Do I understand that with a quantitative -- well,
24 first of all, one type of quantitative analysis is what is
25 called, and I think you referred to this term before, is
19
1 probabilistic studies, right, if you're familiar with that
2 term?
3 A I am.
4 Q Okay. I mean, I think in your deposition I think you
5 mention it a few times.
6 A Okay. I responded to your mention of it. It's
7 actually not a term that we use, but I understood what
8 you were referring to.
9 Q In terms of probabilistic, a probabilistic study is a
10 form of a quantitative assessment; correct?
11 A Studies that are probabilistic and based on
12 probability are normally referred to as inferential
13 statistics.
14 Q Okay.
15 A And so just very quickly, when you start talking about
16 using an inferential methodology, essentially what you are
17 posing is that the sample on which you base your analysis
18 is a representative sample, it's a randomly selected
19 sample, it's a sample that can be said to represent the
20 characteristics accurately or within some degree of error
21 of the total population, and so thus, this notion of using
22 an inferential technique and inferential statistics.
23 Q You said that a lot better than I could have asked
24 the question, so I appreciate that.
25 A Okay. Just trying to be helpful.
20
1 Q What you have described is not what you would do with
2 respect to focus groups, your focus groups, correct?
3 A What I describe is one of the many methodologies that
4 I have used in my research for years, and in fact, if I
5 can elaborate and give you a sense of anticipating your
6 question about strengths and weaknesses of areas --
7 Q Can I just -- I would like to sort of do this,
8 otherwise I lose track of my thoughts here --
9 A Okay.
10 Q -- and get the answers to the questions that I have
11 got, first of all, here, and your --
12 A I apologize.
13 Q And Ms. Massie will have a chance to be asking you
14 some of these questions, as well.
15 A I'm trying to be responsive.
16 Q You described, I think, very -- at least to my
17 perfect understanding what a probabilistic study is and your
18 description of that contains some of the strengths that are
19 associated with quantitative research; correct?
20 A Correct.
21 Q And the characteristics that you have described
22 with respect to this, to a probabilistic or inferential
23 statistics study, those aren't the characteristics that are
24 applicable to the focus group that you did, correct, just
25 the focus group work?
21
1 A That is a correct comment.
2 Q One of the things that a probabilistic study does or
3 an inferential statistics study does is you get -- you look
4 for and it's important to have a random sample of the group
5 that you're studying; correct?
6 A This is correct.
7 Q You don't have that in your focus group work; correct?
8 I think you have acknowledged that.
9 A Focus groups never have random selection in terms of
10 an inferential statistics approach, because it's simply not
11 an appropriate selection procedure to match with focus group
12 methodology.
13 Focus group methodology by its very nature and
14 purpose is intended to focus on a specific small defined
15 population, and then to, if you will, exchange the sort
16 of broad generality you can get from surveys for the rich,
17 detailed content that only comes forward from smaller group
18 discussions or from intensive individual interviews.
19 Q So focus groups don't depend upon randomness; correct?
20 A Not at all.
21 Q They don't depend on a representative sample; correct?
22 A The representativeness of a focus group comes in
23 exactly the point you were asking about earlier; that is,
24 you want focus groups that reflect or incorporate key
25 dimensions of variation within the population, so thus the
22
1 rationale for an African American or a Latina/Latino or a
2 white focus group.
3 Q But representativeness has a -- that's a term of art
4 in inferential statistics; correct?
5 A I'm not sure I'm following that question.
6 Q Well, don't you understand that representativeness
7 of a sample is something that's important in inferential
8 statistics?
9 A For inferential statistics, yes.
10 Q And as that term is used and as it's important in
11 inferential statistics, you don't need that, you don't
12 look for that, in focus group work; correct?
13 A No, you have to have -- well, maybe I'm not
14 understanding your question, but in focus group research,
15 in qualitative research, you have sort of planned and
16 programmed variability, so you do have to have some
17 representativeness, but in terms of it being mathematically
18 calculable, no.
19 Q And I won't belabor this, but just so I understand it,
20 an example of a quantitative inferential statistics analysis
21 that everybody is kind of familiar with is polling data, for
22 example, right?
23 A That's correct.
24 Q We just came through a long presidential election, we
25 all saw a lot of polls, and it's pretty commonly understood
23
1 that one can take a sample of, say, 1,000 American voters
2 and from that 1,000 draw, through inferential statistics,
3 some valid conclusions about how people want to vote with
4 some margin of error that is accurate with respect to the
5 entire population; correct?
6 A It's accurate in the most general sense, correct, and
7 as you said, depending on the degree of -- with some degree
8 of error.
9 Q And just to be -- I want to make sure I'm
10 understanding this, one can draw statistically valid and
11 reliable conclusions from that group of 1,000 to the
12 larger population of, say, 80 million or 100 million, within
13 a margin of error?
14 A But only certain kinds of conclusions, so I think
15 that is a correct point.
16 Maybe it would help if I just made a fairly simple
17 distinction between quantitative and qualitative statistics,
18 which is a discussion that we're having now, and the
19 quantitative approach is more of a snapshot, so it's a
20 snapshot of a larger whole, if you will, but what you get
21 with qualitative methodology is something that's akin to a
22 video. You get more of the process, so that's why, in fact,
23 the field is moving toward using the two methodologies and
24 perspectives in sort of congruence or in concert.
25 Q Okay. But I also understand, am I right, that while
24
1 with quantitative analysis you can draw these statistically
2 valid and reliable conclusions from the sample to the larger
3 population, you can't draw those statistically valid and
4 reliable conclusions from the small sample of a focus group
5 to the larger population, correct, that's the weakness of
6 focus groups?
7 A The weakness of focus groups is that you don't have
8 an estimate of the probability to which the conclusions
9 represent the whole.
10 Q Right. You can't draw --
11 A And thus, you rely on survey data for that purpose.
12 Q Right. In focus group work you can't draw and rely
13 upon statistically valid and reliable conclusions from the
14 small focus group sessions to the larger population being
15 studied, right, in terms of the statistical reliability
16 of validity, is that a fair statement?
17 A I'm pausing, because really the distinction is a
18 mathematical one, and so the lessons that you learn from
19 inferential statistics or the lessons that you learn from
20 what you referred to as probabilistic studies, even though
21 they may be wrong or incorrect, you can say the degree to
22 which that particular finding can be presumed to represent
23 what you would find --
24 Q Sure.
25 A -- within the larger population, and I say, even
25
1 though it may be incorrect, because often you're using
2 the wrong questions or you are using faulty instruments,
3 so I'm saying that it's not a substantive determination so
4 much as it is a mathematical or a statistical one, so.
5 Q Right.
6 A It's a matter of it not necessarily being truth,
7 that's what I'm trying to make sure we don't get --
8 Q There could be flaws in a question, I suppose, but as
9 to statistics and mathematics, one can draw these valid and
10 reliable conclusions to the larger population?
11 A You can, and being cautious that you may in fact be
12 using the wrong instruments and asking the wrong questions
13 and not understanding the process.
14 Q Okay. And you don't do that with focus groups, that's
15 just one of the features of focus groups?
16 A Right.
17 Q Okay. And you have mentioned that your focus group
18 work was purposive; right?
19 A The sampling was purposive.
20 Q And purposive meaning you had certain predetermined
21 criteria that you were relying upon in the selection of your
22 sample, of your focus group sample?
23 A And I have actually shared those criteria. The point
24 is that what we wanted to do is to select from the pool of
25 African American students who said they were interested in
26
1 serving in a focus group, and by the way, that selection was
2 random, but the original pool was not a random pool, but
3 having gotten that pool, then, we randomly selected and
4 assigned people to the two African American focus groups,
5 let's say.
6 Q And my understanding is --
7 A Excuse me for interrupting.
8 So the purposive dimension is really quite simple.
9 It was in terms of wanting to have a sample of a number of
10 focus groups that were homogeneous in terms of race, and
11 in the second case a number of focus groups that were
12 homogenous in terms of gender.
13 Q But within that, then, you were actually looking for
14 students from particular races?
15 A Yes.
16 Q That's part of the purposive element of this study?
17 A Yes, particular races and particular gender.
18 Q You didn't consider doing a probabilistic study here,
19 did you, or an inferential statistics focus group?
20 A At the University of Michigan?
21 Q Right.
22 A I have done ten years of probabilistic research at the
23 University of Michigan and found it inadequate for reasons
24 we have been discussing. I kept finding these correlations,
25 but I had no handle on the underlying dynamics that would
27
1 produce a correlation, for example, that translated into
2 students of color being less satisfied with their
3 educational experience and students of color having lower
4 GPA's, students of color having higher rates of alienation
5 and feelings of isolation, so thus the need to match up with
6 that that data from qualitative research, because as you
7 know, the inferential research can only go so far, it can
8 just -- so for those ten, twenty years, I have been looking
9 at and examining correlations, and so, thus came the need to
10 try to dig deeper into the relationships and understand the
11 movie part, if you will, what the dynamics are and what the
12 process is.
13 Q And the quantitative work that you have done in past
14 years doesn't answer any of those explanatory questions
15 about what's going on with respect to minorities and grades
16 and discrimination; correct?
17 A It answers those questions, but only to the level of
18 general patterns and relationships between variables, so
19 again, I could do all the analysis and indeed did the
20 analysis using sophisticated quantitative techniques so that
21 you can look at basic correlations between major variables
22 and then break those down, but then ultimately what is
23 missing to a sizable extent is the human voice and the
24 human experience and the sort of dynamic dimension.
25 So I'm simply answering a qualified yes to your
28
1 question. I mean, the surveys could answer certain kinds
2 of questions, but they could not answer a question, for
3 example, about the actual human toll of individuals and how
4 they feel on a daily basis and it could not extract the
5 specific instances of racial discrimination, if you will,
6 or of gender harassment.
7 Q And for that information, we have your focus groups?
8 A Correct.
9 Q Now, you're familiar with the concept, and I think
10 this might have been touched upon yesterday, but you're
11 familiar with the concept of selection bias?
12 A Yes, I am.
13 Q Selection bias is a bad thing?
14 A In inferential statistics, and as you say,
15 probabilistic studies, yes.
16 Q Isn't selection bias also bad for focus group work?
17 A Absolutely not, because it's purposive.
18 Q So you wouldn't mind having a biased focus group
19 designed -- a bias in the design of your focus group?
20 A Let me back up. In terms of selection bias, I should
21 have asked you what you meant by the term, but as I heard
22 the question, it seemed to me to be relinking back to this
23 concern with kind of representativeness, so I answered in
24 that frame. Representativeness is not the same goal with
25 qualitative research as it is with quantitative research.
29
1 Now, obviously, bias itself is problematic or a
2 sort of selection bias that would, for example, fill a
3 focus group with people who are biased on the question.
4 Q Okay.
5 A It could be problematic. It may well be that if
6 you're trying to understand prejudice, you want to have a
7 focus group filled with people who are very prejudiced.
8 Q Okay. And I think I understand where we're diverging
9 here. If you use the word, bias, in a very broad sense, as
10 sort of a neutral sense, your focus group work is biased
11 because you're biased toward finding certain ethnic groups,
12 you know, you want certain ethnic groups, that's the only
13 sense in which that bias occurs; correct?
14 A See, I hesitate to accept that, that's why I tried
15 to back off and reframe, because again, the selection
16 criteria are not biased, they are built into the focus
17 group structure, and I imagine it would become biased if,
18 for example, you left out an important or a major racial
19 group, but even there it just depends on the purpose of
20 the research.
21 If you are trying to understand how women experience
22 gender hostility, then a very reasonable case can be made
23 for studying women and only studying women.
24 Q And you have anticipated one of my questions, which
25 is, if you're studying an issue, how people feel about an
30
1 issue, it would be a bad form of selection bias to design
2 the selection of the group or the focus group so that the
3 individuals were skewed in their views one way or the
4 other on the issue being studied; is that a fair statement?
5 A I think it could be potentially problematic.
6 Q Wouldn't that be --
7 A It wouldn't be necessarily fatal. It depends on the
8 skill of the person who is facilitating the focus group, and
9 again, it depends on your goals.
10 Q Wouldn't you agree that it would be a perversion of
11 the process to try to skew the sample on the issues before
12 it in a focus group?
13 A I'll try to repeat a point I have just made. There
14 are times when your goal is to include in a focus group,
15 if you will, a certain point of view, a certain set of
16 experiences, and so in that sense it's not at all a
17 perversion, but it's consistent with what you're trying to,
18 if you will, standardize, so if you're doing a study of
19 individuals who have experienced racial profiling in terms
20 of unwarranted stops by traffic cops, then it may well be
21 that you want to include in that focus group structure,
22 instead of students, people who have had that experience.
23 Q Let me ask it this way: If you're studying the issue
24 of whether affirmative action or the taking of race into
25 account in the admissions process is something that should
31
1 be maintained, would it skew the selection of the focus
2 group to do anything in the design to try to get students
3 who have expressed a particular point of view on that
4 subject?
5 A I think that our judgment was that, certainly --
6 Q It's just a general question, not specifically about
7 this case.
8 MS. MASSIE: I would just ask you to let the witness
9 finish his answer.
10 THE COURT: Well, he can finish the answer, but I
11 think he has limited it generally as opposed to this case.
12 THE WITNESS: Our judgment --
13 MS. MASSIE: I'm just asking -- excuse me for
14 interrupting, Professor Allen. I'm just asking that the
15 witness not be interrupted by Mr. Kolbo. This happened
16 repeatedly at his deposition.
17 THE COURT: Well, first of all, make your
18 objections. I don't know what happened at the deposition.
19 Make your objections. We're at trial today, and if you have
20 an objection, make it.
21 MS. MASSIE: I'm objecting to the interruption
22 of the witness.
23 THE COURT: Overruled.
24 Go on, but phrase your question the way you want it
25 answered.
32
1 BY MR. KOLBO:
2 Q Would it be fair in a general sense, Dr. Allen, if
3 you're studying, if you want to study whether or not
4 affirmative action is something that should be used in
5 college or law school admissions, it would be a perversion
6 of the process to try to skew the sample, focus group
7 sample, in one direction or the other on that, on how
8 students feel about that issue, fair enough?
9 A I think that's a fair enough statement. I find the
10 reference to a perversion of the process, skewing -- but
11 generally, I guess that's a reasonable position.
12 Q Well, you just mentioned you gave a deposition in this
13 case; correct?
14 A I did.
15 Q You have a copy. I think we placed a copy of your
16 deposition up there.
17 A I see it.
18 Q Could you go to page 68 of the transcript, line three?
19 A Page 68, line three?
20 Q Yes.
21 A Yes, sir, I have it.
22 Q And feel free to read the context here, but I'm going
23 to ask -- I'm going to read a question. You, I think, were
24 clear enough for myself in the answer, but if you want to
25 take a look at the question, the question on page 68, line
33
1 number three: "And would you agree it would be a
2 perversion of the process to try to
3 skew that sample or that group of
4 students in one direction or the
5 other; correct?"
6 Answer: "Exactly."
7 I mean, was that your answer?
8 A That's my answer, and as you pointed out, it's in
9 a context. We had had a discussion or you had asked me
10 several questions about the recruitment procedures prior
11 to that on page 67 and I indicated that there was a very
12 broad recruitment strategy where we used e-mails, we used
13 newspaper articles, we used petitions on the street, visits
14 to classes, and so in that context of the discussion, as we
15 came to this question, most certainly I agreed with you,
16 because I had sort of gone to great pains to demonstrate
17 that, in fact, we took a number of explicit approaches and
18 strategies to avoid exactly such skewing and distortion.
19 Q Would it, in the design of this study, these focus
20 groups, would it have been improper in selecting the
21 students for the focus groups to try to get students who
22 have a view that affirmative action ought to be maintained
23 and to try to skew the sample in favor of that direction,
24 would that be proper?
25 A I think it would not have -- basically, each one of
34
1 our communications indicated that we wanted to have a broad
2 representation of perspectives, and so in that sense it
3 would be no more improper to include students who were
4 supportive of affirmative action than it would be to include
5 those who objected to affirmative action, and indeed, if you
6 look at the transcripts, you see we have clear evidence that
7 we had balance in that respect; that is, people voicing
8 support and others voicing either reservations, if not
9 strong objections to it.
10 Q But my question is, would it be improper in the
11 design, in actually going out and trying to assemble these
12 focus groups, to go out and try to skew the collection of
13 students with students who have a view in one direction;
14 that is, that they favor the use of affirmative action,
15 would that be improper if it were done?
16 A If, in fact, you're asking me would it be improper
17 to just stack the deck and only include students who were
18 supportive of affirmative action, I would say yes, I agree
19 with that.
20 Q Well, that wasn't exactly the question, but would it
21 be improper as part of the design of this group to go out
22 there and to try to assemble a group of students primarily
23 who were proponents of affirmative action? I'm not asking
24 you to admit that you did it here, but would that be
25 improper, if it was done that way?
35
1 A If we're still in the general case, it would not be
2 at all improper if you are trying to study students who are
3 supporters of affirmative action and you want to understand
4 the dynamic, the sort of life course that brought them to
5 the point of supporting affirmative action.
6 Similarly, if you wanted to understand how it is
7 that students came to object to or to not favor affirmative
8 action, then again, it would make sense to assemble a group
9 of students who did not support affirmative action, if
10 that's the focus group.
11 Now, if you're doing survey research, of course,
12 you want a broader representation.
13 Q Backing up a little bit, you gave me an answer a
14 question or two ago that suggested that -- suggested and I
15 want to clarify this -- that in the groups that you actually
16 assembled you got a wide difference, you got widely
17 different views on whether affirmative action is something
18 that ought to be continued; is that --
19 A Absolutely did.
20 Q So you got a -- was there a significant number of
21 students who participated in these focus groups that thought
22 that affirmative action ought to be discontinued on college
23 campuses and law schools?
24 A No, there were not, but as my survey data demonstrated
25 both in terms of the surveys for this study, in conjunction
36
1 with Grutter, as well as national survey data of my own and
2 national survey data collected by others, that there is a
3 majority support for affirmative action among college
4 students.
5 Q What percentage? Do you have some idea what
6 percentage?
7 A I'd have to look up those statistics, to tell you
8 the truth.
9 Q Well, I'm talking now about focus groups.
10 A Oh, I'm sorry.
11 Q So what percentage if your focus group respondents,
12 roughly speaking, were opposed to the use of race as a basis
13 for admission, affirmative action?
14 A I actually can't tell you that, for reasons related
15 to the discussion we have had to this point. We're talking
16 about qualitative data, and so those kinds of percentages,
17 but indeed, the surveys and the percentage of students who
18 reported that they did not support affirmative action,
19 that's summarized in survey data. That's part of this
20 report.
21 Q Okay. And were there minority students in these focus
22 groups and the surveys who indicated that they were opposed
23 to the use of affirmative action in college admissions and
24 law schools?
25 A In the surveys, a few.
37
1 Q And how about in focus groups?
2 A Some, again.
3 Q If I could ask you to turn to Exhibit 176. Do you
4 have that book up there, that volume?
5 A I don't see it. I have Exhibit 158 through 160.
6 MR. KOLBO: May I approach, Your Honor?
7 THE COURT: You may.
8 THE WITNESS: Thank you.
9 BY MR. KOLBO:
10 Q Is Exhibit 176 one of the e-mails that was sent out to
11 solicit students for the focus groups that you used at the
12 undergraduate level?
13 A Yes.
14 Q Now, you were involved in the design of some of the
15 solicitations, the e-mails and so forth that went out;
16 correct?
17 A I provided the core of the solicitation and literally
18 did not solicit the students. I purposely did not want to
19 solicit the students myself, so what I did was to provide a
20 core to just a group of students, a group of organizations,
21 that would do the recruitment.
22 Q Okay. You were involved --
23 A Building the pool that we had talked about. Excuse me
24 for interrupting.
25 Q I'm sorry.
38
1 You were involved in the -- you had some hands-on
2 involvement in reading or at least approving some of the
3 solicitations that went out; correct?
4 A No, what I did was to -- and maybe I'm -- well,
5 I wrote and sort of agreed to a core recruitment and
6 description of the studies, so in other words, if you look
7 at each of the solicitations, you'll see that the study
8 purpose is described, the study structure, our research team
9 is identified, and the dates are there. So that general
10 information we provided, yes.
11 Q But isn't it true that you actually approved the text
12 of this particular e-mail exhibit?
13 A Which one.
14 Q Exhibit 176.
15 A Yes.
16 Q Okay. So you read it before it went out and you
17 reviewed it and you approved it; correct?
18 A With each of these, what I approved was the core
19 portion of it, so I cannot definitively say that sort of
20 the formal form is -- the final form is something that I
21 approved, but I will say to you quite, quite clearly that
22 the solicitations went out with my approval.
23 Q Well, you have had a chance now to read Exhibit 176.
24 There is nothing in there that you would have disapproved of
25 or did disapprove of?
39
1 A No, there is nothing here that would have been
2 terribly problematic for me.
3 Q Okay.
4 A Mainly because I had factored in a sort of stop gap or
5 a supplemental selection procedure of sort that I described;
6 that is, in other words, I knew that I would get a pool of
7 students from which we would select and assign to focus
8 groups.
9 Q Okay.
10 A So.
11 Q And one of the things that this e-mail informed
12 people was that: "This is a chance for students at
13 Michigan State University, in this case,
14 to contribute to a legal case that will
15 impact the educational opportunities of
16 minority students for generations to come.
17 It is our Brown versus Board of Education,
18 and we must do everything we can to
19 insure victory."
20 You approved that message going out in a selection
21 of these focus groups; correct?
22 A Sure, yes, I did.
23 Q Wouldn't you agree with me that that injects just a
24 little bit of selection bias into the way in which these
25 focus groups were designed?
40
1 A I could, possibly, yes. Possibly, yes. I hesitate,
2 because as you pointed out at the very beginning of your
3 cross examination, we're talking about two students out
4 of 68 for the Michigan State students, so any selection
5 bias that might have occurred certainly was considerably
6 diminished just by that very insignificant fraction of
7 the total.
8 Q Well, this would have gone out to whoever was
9 solicited at Michigan State University; correct?
10 A In terms of focus groups, yes.
11 Q Okay. And do you know whether this form went out to
12 other schools as well or don't you know that?
13 A No, no, I have the forms for the other schools. I
14 think you have those in 177 and 178, and indeed, I think a
15 second form went out at -- to Michigan, only Michigan State
16 campus, but unfortunately, we just didn't get very many
17 responses from Michigan State, period.
18 Q If you were to design this e-mail over again, is it
19 fair to say you would do it differently, you wouldn't have
20 this exhortation to get students who felt that we must do
21 everything we can to insure victory?
22 A I would have to think about that, because the fact of
23 the matter is that you're trying to get students to take
24 very precious time to participate in research, so you're
25 challenged in terms of interesting them, but probably that
41
1 particular phrase we may have left out, but you'll see
2 phrasing in some of the other e-mails that e-mail list
3 statements that simply said this is a crucial and important
4 case and it's their opportunity to make a contribution, and
5 we then go on to talk about the fact that we want the
6 broadest range and perspectives represented.
7 Q Were any e-mails sent out looking for students who
8 felt that the use of race should be discontinued in the use
9 of college and law school admissions?
10 A The general e-mail attracted students like that, along
11 with attracting students who were in favor.
12 Q But did something go out that actually was suggested
13 it was looking for those types of students?
14 A Yes. That's while saying, the general e-mail was
15 looking for those students, that Michigan State -- you asked
16 about the law school; is that correct?
17 Q Well, I was asking generally.
18 A Okay.
19 Q Let's go to Exhibit 177. Is there someplace in there
20 where it is suggested that students are being looked for
21 who have a view in which they believe that the use of race
22 should be discontinued in the use of college and law school
23 admissions?
24 A Several places.
25 First of all, we assure everyone that their
42
1 expressed opinions will be treated confidentially.
2 Q Which is actually not true, is it, they are not
3 confidential, are they?
4 A I don't know the names of any of those students.
5 Q The names --
6 A That's the notion of confidentiality. And are you
7 aware of names and identities of any of the comments?
8 Q I was asking whether the opinions are going to be
9 held confidential. The opinions are out there.
10 A Well, the opinions are out there before we do the
11 research, and they will be out there after we're done
12 with our research, but in terms of the promise of
13 confidentiality, what you're saying to a student is that
14 anything he or she says will not be associated with their
15 names.
16 Q With their names, okay.
17 A Right.
18 Q If you could then show me where in Exhibit 177 there
19 is a request for students who view -- who believe that
20 affirmative action should be discontinued or erased.
21 A Just a second. I'm trying to -- if you go to the
22 second page, which is page four, at the very bottom of the
23 fax, there is a paragraph.
24 Q I'm sorry, what page are we on?
25 A We're still under Tab 177, the second page, and the
43
1 paragraph that begins: "Please help us recruit
2 as many undergraduates as possible to
3 be participants in this study. We need
4 students of every race and ethnicity, we
5 need slightly more women than men, and
6 we need students with a broad--" and
7 this is the passage that's important --
8 "and we need students with a broad range
9 of perspectives and experiences, and
10 most of all, we're looking for students
11 who are interested in advancing the
12 debate."
13 So for my purposes, that clearly asks students
14 from all perspectives, and whether they support or oppose
15 affirmative action, to come forward, and indeed, if you look
16 through the transcripts, in one set of responses you see a
17 white male in the law school say that he opposes affirmative
18 action because he feels that it would make black students
19 feel inferior, and it was a very rich discussion that
20 ensued, because then the white female said, oh, is that
21 how you feel about your classmates? And they had an
22 exchange, and it was very interesting and enlightening
23 to hear and experience.
24 Q These e-mails were sent out by United for Equality
25 and Affirmative Action?
44
1 A I think so.
2 Q Do they have a view on this subject, as far as you
3 know?
4 A I don't know the organization very well, but I'm sure
5 they do. I think the designation is very clear.
6 Q Now, who actually was -- who were the -- who was
7 responsible for actually the logistics of actually trying
8 to get these focus groups assembled?
9 A As I said, what we tried to purposely do was to
10 identify students, colleagues on the campus, and then to
11 allow them -- or not allow them, to ask their assistance in
12 distributing the appeals, and so beyond having a central
13 contact person or two on each of the campuses, I, for
14 reasons that we have just been discussing earlier, wanted
15 to stay out of the process of selecting students until
16 after which time I had a pool of students that I had not
17 assembled, and then from that pool we could select students,
18 and where the pool was large enough we actually selected
19 them randomly; that is, we numbered them and did a random
20 selection and assignment of the students from the pool of
21 African American students who expressed an interest.
22 So I'm simply saying on each of the campuses, we had
23 several contacts and I would have to pull the list of some
24 of the people that I used for that purpose.
25 Q But your control, other than approving the -- you
45
1 didn't exercise much control over the selection of the pool
2 other than exercising some approval over the text of some of
3 these messages; correct?
4 A That's correct. And I can't say that anyone could
5 exercise that much control, because, you know, it was a
6 voluntary response. You solicited individuals and then the
7 individuals volunteered to participate, and in some cases
8 students who had volunteered just could not -- we either
9 didn't select them into a focus group or they couldn't make
10 the assigned time and place.
11 THE COURT: If you had more time and resources,
12 somebody gave you a gigantic grant or something of that
13 nature, not necessarily in this case, but in another case
14 of something that you're studying and you wanted to do focus
15 groups, would you -- I have seen ads in newspapers and
16 things like that where it says, we're looking for people and
17 here's what we're going to be studying, something like that,
18 would that be a method that you would use, assuming that you
19 had, number one, a lot of resources and a lot of time?
20 THE WITNESS: Yes, Your Honor. The hypothetical of
21 a lot of research resources and the large grant brought the
22 smile to my face.
23 THE COURT: I'm sure it would. I'm sure if you had
24 a lot more time and a lot more money you would have done a
25 lot of different things.
46
1 THE WITNESS: Yes, sir, I would have, but with the
2 resources that we had, we tried to be sure just for reasons
3 of self-protection to get as many students as possible, so
4 we used a variety of avenues for going into classes, but
5 most definitely, yes, to your question.
6 THE COURT: But that's how you would normally, if
7 you had all the resources and ideal kind of situation, you
8 would do similar -- as I have seen ads in newspapers and
9 journals?
10 THE WITNESS: Yes, sir, right.
11 THE COURT: And things like that?
12 THE WITNESS: Exactly.
13 BY MR. KOLBO:
14 Q Did you rely on help from the lawyers for Intervenors
15 in assembling any of the focus groups?
16 A No, not help from the lawyers, as such.
17 Q Ms. Massie, for example?
18 A No. I basically would spend my considerable network
19 resources. As you know, having been in the business for
20 a while, I have quite a few contacts and colleagues.
21 Q And then you were actually at Michigan for some of
22 these focus groups; correct?
23 A For all of the focus groups.
24 Q For all of them?
25 A Yes.
47
1 Q And who assisted you in sort of the logistics of
2 organizing those groups when you were there?
3 A I would have to look up the names of the students who
4 gave us a hand with the organization, but essentially the
5 process was as follows: After we had a pool, then we would
6 reserve rooms and assign time slots and then our team worked
7 in each of those time slots with students who we contacted,
8 so in other words, I would have a list of students who
9 were in the pool, then I would solicit a set of research
10 assistants to call and schedule people, so that was the
11 process.
12 Does that answer your question?
13 Q I think so.
14 A Okay.
15 Q And did you work at all at the actual focus groups
16 where any of the lawyers for the Intervenors were present?
17 A Oh, absolutely not.
18 Q Ms. Massie wasn't present for any?
19 A No, not for the focus groups.
20 Q I'm sorry, for the actual getting people in the
21 rooms together and so forth.
22 A No, that was -- no, no, no. That's --
23 Q That would have been --
24 A Not acceptable.
25 Q That would not have been acceptable?
48
1 A Absolutely not.
2 Q You didn't, in selecting these students for these
3 focus groups, you didn't make any effort to ascertain who
4 was actually interested in applying to law school, did you?
5 A No, but in the course of our discussions and in the
6 data that came forward from the focus group interviews,
7 it turned out that there was a sizable representation of
8 students who were either interested in the law or interested
9 in going to law school.
10 Q That wasn't the qualification, one of the
11 qualifications?
12 A No, no, it wouldn't be, because that would defeat the
13 purpose.
14 Q Now, I just want to talk about some of the things that
15 you did. Again, I'll move on eventually here from these
16 focus groups and the methodology, but in the things that
17 you studied with respect to these focus groups, one of the
18 things you were looking at, I think your report uses the
19 term, to illustrate and elucidate some of the issues with
20 respect to academic performance and discrimination and so
21 forth; correct?
22 A Possibly. Are you quoting from the report?
23 Q Well, the words, illustrate and elucidate are there,
24 but it's not important if they are not, would you agree
25 that that's --
49
1 A That would be a purpose.
2 Q In trying to look at some issues with respect to
3 correlation between academic performance and racial climate,
4 discrimination, things like that?
5 A So if we're talking -- if we're talking about
6 correlations, then you're referring to the survey portion
7 of the report.
8 Q Well, I shouldn't use the word, correlations. You're
9 looking to sort of eliminate in these focus groups those
10 connections; right?
11 A We were trying to understand them, yes.
12 Q Not to draw mathematical conclusions?
13 A Okay, correct.
14 Q And you did not, as part of that process, actually
15 ask students to get transcripts for you; correct?
16 A No. And I didn't for a specific reason, if you would
17 like for me to elaborate.
18 Q My understanding is that you believe that self-reports
19 of grades are accurate?
20 A I would be a bit stronger. It's not my belief, the
21 literature has demonstrated conclusively that students are
22 pretty accurate in reporting their grades and this has been
23 demonstrated with scientific research of the probabilistic
24 sort for students who were asked to report grades and then
25 those grades were compared to transcripts.
50
1 Q But in any event, you didn't get those?
2 A No, I did not.
3 Q Either as part of the survey or as a part of the focus
4 group work?
5 A The actual transcripts?
6 Q Right.
7 A No.
8 Q You don't have any information on how many of these
9 students at focus groups or in the surveys, how many of them
10 that might have taken the LSAT test, you didn't have any
11 testing data on that, did you?
12 A No, I didn't ask any questions about the LSAT test
13 scores for those students.
14 Q Am I correct that between your focus group analysis
15 and your survey work, you concluded that all the students
16 were doing well academically across all racial lines?
17 A I concluded that the students were making reasonable
18 progress and doing well enough to graduate, yes.
19 Q And basically --
20 A But you know, actually, there were variation in their
21 levels of performance. Excuse me for interrupting.
22 Q But am I correct that your conclusion was that the
23 participants academically were basically the same across
24 racial lines and that the results, these were generally high
25 performing students, fair enough?
51
1 A The second part I agree with, but not the first part,
2 no. The students were not performing the same across racial
3 groups, but the students were high performing students,
4 for example, in terms of the -- in the cases of the law
5 students, in terms of the profiles that they had as
6 undergraduates, and in terms of the undergraduate students
7 in terms of their profiles as high schoolers, and
8 ultimately, as I have said a moment ago, the point was
9 that the students were performing at an acceptable and
10 reasonable level across the board.
11 Q Could you go to page 34 of your deposition? Do you
12 have it there?
13 A Yes, sir, I do.
14 Q Actually, it starts on page 33. This is a question:
15 "And my question is, and I'm sure
16 I have looked at it, it must be here
17 somewhere, but I'm trying to get a
18 general sense of your understanding
19 as to whether there were significant
20 differences between grade point
21 averages among the racial and gender
22 lines among these students at these
23 feeder institutions."
24 Answer: "What was striking as a
25 whole, the students that we interviewed
52
1 were high performing students academically."
2 Question: "Along all racial lines?"
3 Answer: "Along all racial lines,
4 but there was some difference in terms
5 of their reported experiences in classes
6 and in terms of their experiences --
7 in terms of their reported experiences
8 with respect to how they were perceived
9 and treated."
10 Did I read that accurately?
11 A You did.
12 Q Is that a true statement?
13 A It is, but once more, it has to be in that larger
14 context, because if you remember the questioning and answers
15 that continued over to page 35, for example, line seven,
16 where I talked about grades being negatively affected by
17 discrimination, and so in the context of what is a very
18 complex situation, that's a correct assessment.
19 Q You didn't actually, as part of your work, you didn't
20 measure the extent to which there were differences in
21 grades, academic performance, among these students in
22 these focus groups or surveys; correct?
23 A I had done that work previously at the University of
24 Michigan and in a couple of instances actually making such
25 measures, measurements for the entire population of all
53
1 students who were enrolled at the University. I had used
2 the University's retention data set and done exactly those
3 correlations of race with the grade point average, so in
4 the focus groups, you know, we didn't do that, because for
5 one thing, as we have discussed, it would not have been
6 representative of the entire community, but more
7 importantly, I had that information from previous research
8 that used the entire collected data on all students who had
9 entered the University and been there for five years, as
10 well as data from probability-based surveys.
11 Q Okay. Let me ask you about some of the survey work.
12 Surveys are the written materials, right, as opposed to the
13 focus groups, written survey questions?
14 A Yes, self-completed questionnaires, yes.
15 Q And 200 out of all these, among these schools, among
16 these four schools?
17 A For this particular study, yes.
18 Q And just to clarify myself on this, is that exclusive
19 of the law school, the 200 or so surveys?
20 A I would have to look at the numbers again, but the law
21 school -- yes, it is, it's exclusive of the law school.
22 Q And how many --
23 A We had about 40 surveys at the law school.
24 Q Okay. So let me ask you about the -- first of all,
25 the 200 or so undergraduate surveys, am I correct that you
54
1 found -- well, first of all, this was predominantly, among
2 the surveys, like the focus groups, this is predominantly
3 minority students; correct?
4 A Yes.
5 Q I think I read somewhere that you have about
6 17 percent whites in the survey response?
7 A Right. And for reasons that are -- became very clear,
8 and became very clear in, for example, the responses of
9 the white students, the white students said they had not
10 experienced racial harassment or racial discrimination
11 and this focus group study was a focused study of
12 experiences with race discrimination.
13 Q Most of the students were A or B students, correct,
14 about 90 percent of them?
15 A I would have to look at the percentages. Are you
16 referring to the survey?
17 Q I think this is around -- well, it may be in several
18 places. I took my notes here and I am looking at page 49,
19 I think, of your report, where you have it in narrative
20 fashion.
21 A Page 49, you say?
22 Q I can't guarantee that's where it is, but --
23 A I have tables under tab two which would include a
24 specific grade breakdown.
25 Q Actually, page --
55
1 A Item five.
2 Q And then page 50, actually, goes into this, as well.
3 A Okay, page 50.
4 Q And 47 percent of the respondents reported A averages,
5 46 percent B averages?
6 A I'm sorry, sir, on page 50?
7 Q Page 50, the second full paragraph.
8 A Yes.
9 Q So that's confirms that these were pretty high
10 scoring, pretty well performing students by and large
11 in these focus groups; correct?
12 A This is true.
13 Q Doing well.
14 Most of them also indicated that they were well
15 prepared, or prepared at least, to enter college?
16 A That's correct.
17 Q And I think the number I counted was about 82 percent
18 answered very -- answered well prepared or prepared, that's
19 on page 50 and 51?
20 A 60 percent answering well prepared and 22 percent
21 prepared, somewhat prepared, yes.
22 Q A third of the parents of these students had a
23 father with a graduate or professional degree; correct?
24 A Right, but -- yes, this is true, but as you know,
25 this is the group as a whole, including the white students.
56
1 Q Most of the group is minority; true?
2 A Yes, that's true.
3 Q And 25 percent of the mothers of these students had
4 graduate or professional degrees?
5 A And as you pointed out, 17 percent of the sample is
6 white, so that's why I made the point. So we're talking
7 about an additional eight percent, if indeed it turns out
8 the case that the white students were the ones who were
9 the 17 percent who -- the 17 percent of white students had
10 mothers with graduate degrees.
11 Q Well, do you report that data broken down by race
12 at all?
13 A No, not here I don't.
14 Q How about, did you find out -- we're talking about
15 graduate professional degree, correct, that's beyond four
16 years of college?
17 A It's a college graduate, yes, with an advanced degree.
18 Q Well, I think of a graduate degree, is that -- do you
19 mean by that a four-year college or is that something past?
20 A It's past. It's past the BA and then, as you said, a
21 Masters degree, professional degree, a Doctorate.
22 Q Did you ascertain how many of these students had
23 parents, one or more parents, that had a four-year degree?
24 A I think we do have that here.
25 Q I guess I didn't see it, so.
57
1 A Let me look.
2 Q Well, if it's here, it's here, right?
3 A It would be in the tables for sure. I'm pretty sure I
4 have it.
5 Q Well, if you could find it quickly, I just --
6 A Parent education. If you'll give me a moment, I'll
7 dig it out.
8 Q Sure.
9 A You know, actually, I correct myself. I'm looking at
10 the questionnaire, and what we asked the students about was
11 their own -- no, we do have it, just a second.
12 Question six in the questionnaire, in the survey,
13 asks about parents' education, so I will have to find the
14 equivalent table.
15 Table 15 under Tab 2 is father's education and
16 Table 16 is mother's education.
17 Q Yes, I see that.
18 A And so I can answer that question separately for
19 mothers and fathers in terms of graduate professional
20 degrees. For fathers we're talking about a third of
21 the sample and for mothers we're talking about a quarter
22 of the sample, so 33 percent and 25 percent.
23 Q That's for graduate or professional degree; correct?
24 A Yes, that's what you were asking me, is that correct?
25 Q Right. And then there are -- we have already gone
58
1 over that data.
2 And having a BA or a BS?
3 A Yes, in terms of a BA, solely a BA, 14.5 percent
4 of fathers and only a BA, 21 percent of mothers.
5 Q All right. And then there are additional numbers who
6 have some college; correct?
7 A Correct.
8 Q Okay. And again, you just -- that's not broken down
9 by race, we just don't have that?
10 A No, not here. Except, once more, that's research --
11 those kinds of comparisons by race of parents' education,
12 I have done extensively in the 80, 85 or so papers that I
13 have published and so those were questions that have been
14 answered and they have been answered generally, that is,
15 on a national level, and then answered previously for the
16 University of Michigan from the other analysis I have done.
17 I mean, the bottom line is that you see these
18 dramatic differences by race in terms of parents' education
19 with black and students of color being disadvantaged.
20 Q Just not shown here for these focus groups or surveys?
21 A I didn't do that analysis for the focus groups for the
22 simple fact that, as I said, it's a point I demonstrated
23 with earlier research.
24 Q And I hesitate to mention it, because I didn't write
25 down the page number, but am I correct that you found that
59
1 two-thirds of the students in these 200 member focus --
2 200 member surveys, two-thirds of them reported that they
3 had A averages in high school, probably around --
4 A You found that where? Where was it? I'm sorry.
5 Q Well, I'm not sure. I think it's page 51 or 2.
6 A Okay, 51 or 52.
7 Q A substantial number of them reported high performance
8 in high school, is that your recollection, at least, or do
9 you want to look?
10 A It is my recollection. Just if you needed me to
11 attest to the percentage, I needed to look it up.
12 Q Okay. So you're satisfied that that's -- let's
13 just --
14 A Generally it's true, yes, but if you want me to
15 look up the percentage, the exact percentage, I can do so.
16 Q We will just -- if it's there, it's there. If it's
17 not, it's not. We will leave it there.
18 Let me ask you about some of the law school survey
19 work that was done. Am I correct that you found the
20 prospective -- there's only 31 of these respondents,
21 correct, first of all?
22 A Yes, that's correct.
23 Q You found that grades were comparable across races and
24 that they were acceptable levels, with only three reporting
25 something less than a B average?
60
1 A Yes, sir, that's correct.
2 Q And most of the students felt extremely well prepared
3 for law school, about two-thirds of them?
4 A Correct again, yes.
5 Q By and large, these students in the -- among the
6 31 students at the law school reported that their college
7 grades had been high; true?
8 A Yes, sir.
9 Q And can you remind me, what was -- the 31 law schools
10 respondents, were they predominantly minority students?
11 A Once again, we had one focus group that was white
12 students, so they were predominantly students of color and
13 predominantly female, actually, because those were the two
14 categories of focus in terms of questions about racial
15 climate and gender climate.
16 Q Let me ask you, I'm going to change subject now a
17 little bit her.
18 Do I fairly understand that your opinion is that
19 racism, race discrimination, is something that is pervasive
20 in this country?
21 A Oh, absolutely, yes.
22 Q And you have focused on these feeder group
23 institutions and the law school itself and you have found
24 persistent patterns of racial hostility, racially hostile
25 climate; correct?
61
1 A That's correct.
2 Q You have found evidence from these studies, from these
3 survey respondents, of patterns of discrimination and racism
4 on these campuses, that's your finding?
5 A That's my finding and it matches up with the research
6 that others have done, as well as my previous research.
7 Q And is it fair to understand your opinion to be
8 that these feeder institutions and the law school are not
9 atypical for primarily white college universities and law
10 schools around the country?
11 A That's a safe assumption, yes, sir.
12 Q Okay. So this is a problem that's pervasive
13 around the country, other colleges and universities?
14 A It's a problem that's pervasive, but it is a problem
15 that varies in its intensity, depending on characteristics
16 and traits of a campus; for example, the history of a
17 campus, history of race relations on the campus, the sorts
18 of policy issues or debates that are under way on a campus,
19 for instance, on a campus where affirmative action is being
20 hotly debated, then often those kinds of patterns will be
21 exacerbated.
22 Q Okay. And patterns of discrimination, racism, are not
23 limited to colleges or universities, either, correct, in
24 your opinion?
25 A Well, no, unfortunately, they are part of our society
62
1 as a whole and as such you see those problems from the
2 larger society being reflected on the campuses.
3 Q I mean, it's fair to say to understand your opinion
4 to be that we have an existing climate in this country of
5 societal discrimination against minority students, fair
6 enough?
7 A A climate that -- I have trouble answering that
8 question yes or no, and if you'll allow me. I mean, we
9 do have discrimination in the country. It varies in terms
10 of its force and shape and the targets depending on the
11 particular regions, and it also varied over time.
12 So if you talk about California and discrimination
13 right around Prop 209, then you have a different kind of
14 picture than, say, California and whichever group you're
15 focusing on pre209.
16 Q And I understand there may be variations and you
17 may --
18 A Yes.
19 Q -- believe there are variations, but you believe it's
20 a national phenomenon, correct, in society?
21 A Okay. I believe, and those beliefs are validated by
22 empirical research --
23 Q Okay.
24 A -- of an extensive body, that yes, the country
25 continues to engage in racial discrimination, that
63
1 continues to be a problem for us, and again in terms of
2 gender discrimination, as well.
3 Q Our country has a history of societal discrimination
4 against minorities?
5 A Absolutely.
6 Q And there are continuing effects of that societal
7 discrimination?
8 A Correct.
9 Q And some of the continuing effects of that
10 discrimination relate to the academic performance of
11 minorities like African Americans, Hispanics, Native
12 Americans at America's colleges and universities; true?
13 A This is very true and it's based on just a cumulative
14 disadvantage that I have documented from K through twelve
15 education that then translate into different levels,
16 for example, of educational preparation, educational
17 opportunity, and then translating into differences in
18 terms of representation for the different ethnic groups
19 in higher education.
20 Q And is it fair to understand you believe that race
21 ought to be considered in the admissions process at
22 colleges and universities in order to help respond to
23 these continuing ongoing events of societal national
24 discrimination against minorities, true enough?
25 A I think as an educator you cannot make decisions
64
1 about students and educating and admitting students into an
2 institution of higher learning without looking at the whole
3 person, and race is a sizable and in many instances just
4 definitive component of a person's experiences and
5 opportunities.
6 Q And one of the reasons we should do that, as I
7 understand your opinion, is that we must respond to these
8 ongoing effects of societal national discrimination against
9 minorities; fair?
10 A One of the reasons is that we do need to respond to
11 and make and take account of systematic patterns of racial
12 discrimination. Further, I think we have to prepare
13 ourselves, our students, our work force, for a reality
14 of a racially and culturally diverse world and society.
15 Q And those are reasons that, in your opinion -- and
16 you're an educator, right?
17 A Yes, I am.
18 Q Those are reasons that, in your opinion, we all
19 have to be able to use race as a factor in admissions
20 decision making at colleges, universities and law schools;
21 true?
22 A I think that when we are making decisions about
23 admitting students, we have to look at the whole student
24 and a student's racial identity is part of that whole.
25 So absolutely, yes, it's -- and I would just say, as an
65
1 educator and researcher, it's just about impossible to
2 look at a student apart from their racial experiences, their
3 race, because race structuralizes in this society in very
4 definitive and very clear ways.
5 You look at a city like Detroit, you see that the
6 city is residentially segregated. You look at one of those
7 pockets, you see it systematically continues in terms of
8 educational opportunity, and so all of that ties together,
9 so it's not merely skin color, per se, but it's what skin
10 color determines about life experiences and opportunities in
11 our society.
12 Q Okay. And so housing segregation, for example, in
13 Detroit, is a reason that ought to be considered as a
14 justification for considering race in the admissions
15 process at a law school or undergraduate school, true?
16 A Housing discrimination in Detroit, in Minneapolis,
17 first of all, sets the catchment area for the schools that
18 you attend. It also determines the resources that are
19 available in the schools that you attend. So it sets you
20 on a trajectory either to higher educational accomplishment
21 and achievement or to lower educational accomplishment and
22 achievement, and unfortunately, those kinds of forces are
23 bigger than individuals, and so the most motivated, the most
24 innately talented young kid cannot learn algebra if algebra
25 class is not available in her school, and unfortunately,
66
1 what we see is that algebra and other subject areas are
2 differently available in schools coded by race; that is,
3 the schools that are coded by race tend to be poor and they
4 tend to have fewer offerings, and so, thus the point I'm
5 trying to make.
6 Q And just so I understand, your opinion is that those
7 kind of social demographic factors are the kinds of reasons
8 we have to -- that we should use to justify using race as
9 one factor in the admissions process at colleges and
10 universities, law schools, true?
11 A Yes, and the sociodemographic factors as related
12 to the educational institutions and the educational
13 opportunity structure that they shape.
14 So it's more about educational opportunity, but it's
15 educational opportunity that is differentially experienced
16 and available based on race and based on racial segregation
17 in this society and systematic deprivation by race.
18 Q I want to talk about the phenomenon of poor
19 performance, poor academics, poor grades in the college
20 or law school.
21 You're an educator. You have been an educator for
22 how long?
23 A I have been an educator for 26, 27 years.
24 Q Would you agree with me that there are a lot of
25 reasons why students, any particular student or any group of
67
1 students, might be suffering from poor academic performance,
2 a lot of reasons out there for that?
3 A I would accept that general principle, yes.
4 Q There are a lot of reasons that would explain why a
5 white student might have poor grades; correct?
6 A There are reasons that would explain why a white
7 student might have poor grades, but one of those reasons
8 would not be racial discrimination.
9 Q But there is a lot of --
10 A Because this society is a society that has been
11 dominated by whites and has been structured in ways that
12 privileges whites and so racial discrimination against
13 whites in this society, I have trouble buying.
14 Q But there is a lot of reasons that have nothing to do
15 with race that can cause a person to perform poorly on their
16 grades and test scores; true?
17 A See, that's the interesting thing about how race
18 affects educational performance in this society, because in
19 fact, as I tried to point out, educational performance at
20 the college level, let's say, is a function of cumulative
21 either educational advantages or disadvantages, and so if
22 the original situation was created by racial segregation,
23 then by the time you get, say, to an SAT test, you could
24 in theory say that, well, this student's performance, low
25 performance on, say, the mathematical part of the SAT, is
68
1 because he doesn't know math, but that rips the person from
2 his experience and rips the person from an experience that
3 was dictated, structured, required by racial identity and
4 that put him in schools that set him on an educational track
5 that insured that he wouldn't know algebra, because it would
6 not be available to him.
7 And so that's why I'm hesitant to accept an
8 assertion that they are just random causes, because in fact,
9 the causes of low educational performance of Chicano-Latino
10 students are not at all random. They are very systematic.
11 There is very systematic deprivation in terms of
12 preschool educational-related experiences, systematic
13 deprivation in terms of the elementary years and
14 opportunities to learn, and systematic deprivation in
15 terms of high school, so at the end of the process, the
16 predictable has happened, that kid is not as well prepared,
17 is not as able to compete with his white peers who were set
18 on a course where those resources were available and where
19 the opportunities were there and present in their schools.
20 THE COURT: Define systematic for me.
21 THE WITNESS: Systematic is just a kind of patterned
22 effect, if you will, so just following a young person
23 through school. A poor youngster and many youngsters of
24 color who are disproportionately poor, who does not have the
25 advantage of educated parents to prepare him or her in those
69
1 earliest years just for readiness to learn, if you will,
2 so in those early years, in the preschool years, whether the
3 parents could afford to put that kid in a quality preschool,
4 then in terms of the K through twelve years, the quality of
5 schools that those youngsters have available to them.
6 And we educated parents and the parents who are of
7 middle class work very hard to get their kids into certain
8 schools, and that's because we understand that high quality
9 schools will produce kids who are better educated and who
10 are better equipped to compete, and once you get into the
11 high school years, those differences become even more
12 pronounced.
13 The research I have been doing in California shows
14 that the availability of advanced placement classes --
15 THE COURT: I understand. So if you don't start at
16 the bottom, you can't --
17 THE WITNESS: Exactly.
18 THE COURT: You used the word, systematic, so that's
19 what you mean by systematic?
20 THE WITNESS: Yes, sir. Sort of a pattern,
21 repeating structure --
22 THE COURT: I see.
23 THE WITNESS: -- of just deprivation, deprivation
24 in the earliest years, all the way through to deprived or
25 blocked opportunity into high school and college.
70
1 BY MR. KOLBO:
2 Q Let's just accept, at least for point of argument,
3 that race is a factor that can explain academic performance
4 in some cases. Let's just put that aside for a minute, for
5 the moment, but my question actually was, isn't it true,
6 Dr. Allen, as an educator, you know that there are a lot of
7 reasons that can explain poor academic performance that have
8 nothing to do with race?
9 A There are some reasons that have nothing to do with
10 race.
11 Q And there are a lot of reasons why a white student or
12 an Asian American student might do poorly in school that
13 have nothing to do with his or her race; true?
14 A That's hypothetically true, yes.
15 Q Well, you accept that, don't you? I mean, you accept
16 that proposition?
17 A Well, no, actually, I don't, and that's why we went
18 to the next stage of the research. That's exactly the
19 quandary that we had, to tell you the truth. We had these
20 correlations, but we didn't have a clarity of what was going
21 on in terms of the underlying dynamic, and so when you moved
22 to the next level and began to talk to students in the
23 different categories, talk to Asian American students,
24 talk to black students, talk to white students about their
25 specific educational experiences and with force of the
71
1 educational outcomes that you observe, then clarity emerges,
2 because the students have started talking about differences
3 in terms of their opportunities to learn in the early years,
4 for example, or differences in terms of how their teachers
5 respond to them, stereotype them, and are prepared to either
6 foster or block their education.
7 Q A white student might do poorly in school in part
8 because of a disadvantaged upbringing, true?
9 A This is probably true, yes.
10 Q Because he comes from a poor family, true?
11 A A white student who, for example, comes through an
12 urban inner city school system, yes, would be deprived
13 systematically in the same ways that his black classmates
14 are deprived, but when we look at the distribution of
15 residence and schooling we find that the composition
16 overwhelmingly of those inner city schools tends to be
17 students of color.
18 Q And a white student might do poorly for simply not
19 applying himself or herself well?
20 A That's possible.
21 Q And that could be a reason that might explain why a
22 black student or a Hispanic student does poorly in school,
23 as well?
24 A I think I accept those hypotheticals for individuals,
25 but the lesson that we have learned as sociologists is that
72
1 when you begin to see group processes and group patterns,
2 then it's no longer sort of random individual explanations,
3 and in fact, that again takes us back to systematic pattern.
4 You see patterns for groups that are different and
5 so needless to say statistically you will see individual
6 variation, will see some individuals within a population who
7 are less motivated than others, you'll see some that work
8 harder, you'll see some who are better prepared, but when
9 you start seeing a group pattern where, for example, black
10 students consistently do more poorly than white students,
11 then you're actually left with fairly simple conclusions.
12 You can either conclude that that entire group of
13 people is somehow deficit, and for obvious reasons I'm not
14 accepting, for obvious or not so obvious reasons, I'm not
15 accepting of such an assertion, or you can look for some
16 larger patterns, some larger forces and some larger
17 relationships that are producing those group differences.
18 Q There are certainly many African American and Hispanic
19 students who do very well academically; true?
20 A Some of the students we talked with do well
21 academically.
22 Q Into high school?
23 A And they do so at great cost, yes, they do well.
24 Q They do well in high school, they do well in college?
25 A Yes, some of those students do, yes.
73
1 Q Some of them do well in law school?
2 A Absolutely. And I'm engaged in a study that exactly
3 shows that kind of successful student, and when you look at
4 these successful students, you find that the explanations
5 are quite clear. There are students who had opportunities
6 to learn, these are students who had parents who were of
7 high status. These are students who found educational
8 environments that were supportive and that did not
9 stereotype them and then behave based on that negative
10 stereotype to produce the self-fulfilling prophesies that
11 they were not good students.
12 Q You've suggested many times that minority students
13 have certain stresses that white students don't have due
14 to racism and discrimination; true?
15 A Yes, and they share some stresses, as well.
16 Q Am I correct, in your report you suggest that the
17 greatest stresses for white students are personal such as
18 the difficulty in getting a date. Do you really believe
19 that or is that sort of, I mean, is that sort of tongue in
20 cheek?
21 A Do I believe that a social life is a stress --
22 Q One of the --
23 A -- for college students, yes, I do.
24 Q Do you believe that the greatest stresses that white
25 students face in general, that the greatest stresses that
74
1 white students face academically are personal, and an
2 example is like getting a date? I mean, isn't that a
3 little --
4 A For some students that could be quite a challenge.
5 Q I can testify to that, but is it fair to generalize,
6 is it fair to generalize and suggest that that sort of
7 exemplifies the greatest problems that white students have?
8 A I think you're probably --
9 Q That's not fair, is it?
10 A -- referring to a series of things. It's fair to a
11 particular individual who does have those kind of problems.
12 It was more the larger point, and there we used a couple of
13 examples, didn't we? Are there other examples there besides
14 the date?
15 Q That's the only one I see there.
16 A Well, normally in my work you'll find several
17 examples, but the larger point is that the kinds of problems
18 that confront, say, Chicano-Latino students and white
19 students at Michigan are fundamentally different.
20 I mean, they will share the general problems that
21 students face, I mean, learning how to organize your time,
22 having to work, having to take care of school work, having
23 to find yourself a date, all of that is a general part of
24 college life, but the overlayer, the extra special burden
25 that the Chicano-Latino student faces comes in the form
75
1 of -- in the form of, as I talked about, harassment by
2 police; that is, police officers who literally will pull
3 them over and treat them as if they don't belong on the
4 campus or stereotypic assumptions about them before a
5 teacher knows anything about their background, just
6 presuming that they are not academically qualified, or
7 spurious slurs by some of their classmates.
8 I mean, many of those racial slurs that those
9 students report are not slurs that the white students
10 reported, and indeed, we asked a specific question of
11 all students, and white students said, no, they had not
12 experienced racial discrimination.
13 Q But it's not, you would agree with me, it's not fair
14 to generalize and suggest that for most whites and/or all
15 whites the only real problems that they face in academic
16 performance are sort of trivial personal reasons like
17 getting a date, that's just not a fair statement, is it?
18 A I think the statement was intended more to say that
19 there are levels of intensity of the problems that are faced
20 by students and so the generalization that you're pointing
21 to is, I think, a common challenge to students, but beyond
22 that students of color have these additional burdens that
23 come solely as a result of racial hostility in the climate
24 where they are trying to complete their education, just like
25 the white students are trying to complete their educations.
76
1 Q Isn't it fair to say that one of the problems in this
2 country with respect to race and other issues, as well, is
3 that there is a problem that people tend to generalize too
4 much and try to project a characteristic or a situation with
5 respect to -- onto a particular race or gender or group?
6 A I think the problem about tending to generalize is
7 understating. The problem is about, for instance, using
8 racist stereotyping, for example, or misogynistic
9 stereotyping of females, and then people using their
10 power to act out those, to act on those stereotypes.
11 So beginning with a negative perception or
12 stereotype of a group, and then using one's power and
13 privileged status to strike out at, to undercut, to
14 negatively influence and affect the outcomes and experiences
15 of those people, so for me it's larger than generalizing,
16 because quite frankly, as humans, we always use categories.
17 That's the only way we can deal with this world.
18 It's very complicated, it's very complex, so we use
19 categories, but it becomes problematic when we attach those
20 negative designations to an entire people, for example,
21 or to an entire gender, so it's not that you know the
22 difference between men and women, if you don't know the
23 difference between men and women by the time you get to
24 college it's a problem, so that kind of generalization is
25 part and parcel of just human development and of being an
77
1 educated person, but I'm just simply saying that what
2 becomes problematic is negative stereotyping by race or
3 negative stereotyping by ethnic group.
4 Q Well, negative stereotyping by race isn't bad just
5 because it's negative, it's bad because it's wrong, right,
6 it's inaccurate?
7 A It's bad because of all of those things and it's bad
8 further because of the fact that in too many instances
9 the individuals with the power will take those negative
10 stereotypes and penalize and not give the groups stereotyped
11 an opportunity or a chance and penalize them for the mere
12 fact of their physical appearance.
13 Q It's a negative stereotype to think that most African
14 Americans are underachievers academically, true, that's a
15 negative stereotype?
16 A It's a negative racial stereotype to make that
17 assumption, yes.
18 Q And it's a false stereotype, true?
19 A It depends on the measures of achievement that you
20 use, needless to say. If you use, say, standardized tests,
21 then there is a documented difference in terms of levels of
22 performance by race, but it would become a problematic
23 stereotyping if you assumed that all black students would
24 underperform on the SAT, and it becomes problematic if you
25 don't move to that next level of analysis which allows you
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1 to understand some of the factors I have been talking about
2 that predict those differences in test score performance,
3 because it's all predicated upon differences in educational
4 opportunity and preparation because of racial
5 discrimination.
6 Q Isn't one of the reasons to have, as I understand it,
7 a racially diverse campus, is to sort of -- is to put an
8 end to inaccurate racial stereotypes that white students
9 might hold about black students?
10 A I think that's been one, one rationale offered. Given
11 that we're a democracy and we define ourselves the way we
12 do as a society, for me an even more compelling rationale is
13 that rationale for equal opportunity.
14 Q It's just wrong to make general conclusions about a
15 whole group of people in terms of what their characteristics
16 are or experiences. I mean, that's just -- one shouldn't do
17 that, that's a negative or at least that's an inaccurate
18 stereotype and that's one of the reasons that it's been
19 offered in support of racially diverse campuses; true?
20 A I'm not one who sort of has written a lot about a
21 rationale for racially diverse campuses, so I'll have to
22 accept your premise.
23 Q It's not fair, is it, Dr. Allen, for someone to
24 conclude that all white students are privileged, that's
25 not a fair stereotype, is it?
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1 A It's fair to talk about, and it's actually prudent and
2 reasonable to talk about group differences, because we keep
3 moving back and forth between individuals and groups, and
4 when I started talking about those systematic patterns,
5 that's about group privileges, it's not about individuals,
6 per se, but it's about the groups and their relative
7 positions.
8 And in society, decidedly, there is no question
9 that whites are privileged relative to nonwhites and that
10 privilege plays out in all aspects of life and all the
11 arenas of life. If you look at any arena of this society
12 and look at what matters in terms of occupation, in terms of
13 housing, in terms of health, in terms of education, you see
14 systematic patterns of white advantage and systematic
15 patterns of disadvantage for people of color.
16 And so it becomes a little bit confusing to try and
17 selectively talk about individuals when in fact these group
18 patterns are quite clear and quite distinctive and tell us
19 how this society has functioned historically and how it
20 functions today.
21 Q You would agree with me that not all white students
22 are privileged?
23 A Of course not all white students are privileged.
24 Q And some black students are more privileged than other
25 white students?
80
1 A And we have to talk about all the bases of privilege,
2 but depending on how you define privilege, that may be a
3 correct assertion.
4 Q You talked in your testimony yesterday about a Chicano
5 student whose B plus may not be the same as a white male's
6 because of the hardships that Chicano might have to overcome
7 because of his race; right?
8 A Correct.
9 Q Okay. Isn't it true that the B plus of a white
10 student who has got some demonstrated hardship, came from
11 a poor background, might represent more hard work and effort
12 than the B plus of a more privileged black or Hispanic
13 student, can that happen?
14 A If I read what the students are telling me in those
15 transcripts, in those surveys, that's not going to happen.
16 Q Never?
17 A Because in fact, what the students will -- well, I
18 would never say never -- oops, I just did -- but I tend not
19 to say never, because we're talking about general patterns,
20 but I'm simply saying that we can return to your comment
21 about probabilistic studies and probability.
22 When we're doing these types of assessments it's
23 best to think in terms of the general tendencies and the
24 more likely occurrences, so the more likely outcome is that
25 what you just described would not happen for reasons of
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1 the educational experiences that these students describe.
2 These students describe a situation that doesn't
3 make allowances for them or privilege them, but in fact,
4 penalizes them. And so their B plus, absent that kind of
5 discrimination, would have been a much higher grade, you
6 can presume.
7 Q Are you familiar with the argument that one cannot
8 stop using race as a factor in admissions and substitute
9 instead socioeconomic status because there are just too many
10 poor, poor white students in this country because they
11 outnumber, absolutely, the numbers of minority students,
12 and there's just too many of them, and if one substituted
13 socioeconomics for race you simply wouldn't have enough
14 black students at colleges and law schools, are you familiar
15 with that theory?
16 A We're wrestling with issues of race and socioeconomic
17 status as potential bases for selection in California and
18 finding that, trying to go to a system of socioeconomic
19 based selection, if you will, just does not capture the
20 incredible disadvantage, the just deep damage of racial
21 discrimination on people of color, because it's a
22 multiplicative effect, if you will. It's not only that
23 Chicanos and blacks are disproportionately poor, it's
24 also that the poor are not -- they are racially
25 discriminated against in this society, they have blocked
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1 opportunities.
2 If you look at the educational opportunities of
3 middle class black kids, you find that they don't begin to
4 compare with the educational opportunities of poor whites,
5 comparing the high schools in terms of course offerings and
6 curriculum, in terms of degrees of the teaching faculty, in
7 terms of the quality of life at the surrounding areas. So
8 the point is that race is a powerful presence that doesn't
9 ignore or eliminate class, but in fact, complicates it and
10 complicates it exponentially.
11 Q But am I correct that one of the reasons why
12 socioeconomic advantages has been rejected, maybe not
13 the only one, but one of the reasons it's been rejected by
14 educators as a substitute for race is that there are just
15 too many poor white students and you would end up with not
16 enough Chicano students at colleges and black students at
17 colleges?
18 A No. What I was trying to respond to you and say, it's
19 problematic because it does not capture the power of race to
20 shape educational opportunities in this society and to
21 change the educational opportunities, even well-to-do
22 blacks.
23 Q You didn't read Dr. Gary Orfield's testimony in
24 this case?
25 A No, I did not.
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1 Q About that problem I just mentioned?
2 A No, I did not.
3 Q So you don't agree with it?
4 A I don't agree with what I didn't read?
5 Q We have been talking -- I'll represent that, if I
6 recall correctly, that Dr. Orfield has suggested that
7 socioeconomic advantage will not work as a substitute for
8 race in admissions because, again, of the demographics,
9 there are more white students. I take it you disagree with
10 that, that's not a reason that that -- that's not the reason
11 that one should reject that alternative to race as a factor
12 in admissions?
13 A I would have to read Gary's argument. I'm sure he
14 developed it more fully, and then I could tell you whether
15 I agree with it.
16 Q You have testified that you gave an example of, I
17 think, an example of how discrimination affects minority
18 students, of a student or two who walked into a classroom
19 and the teacher basically, I think you said, palmed them
20 off or ignored them or something like that?
21 A I have several examples where students would come
22 into a room before the students -- before the teacher knew
23 anything about the student, the student would be told that
24 black students don't do very well in this class, and by the
25 way, that's from my survey data at the national level.
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1 In terms of the data from the Michigan study,
2 we have several examples of students trying to -- black
3 students, Chicano-Latino students trying to approach faculty
4 members, white faculty members with questions, and not
5 receiving the same response that their white classmates
6 received; that is, not being attended to, being, and I quote
7 from a student, being given get-out-of-my-face answers, and
8 this is from the student transcripts.
9 Q You would agree that white students sometimes have
10 trouble dealing with faculty, that happens?
11 A Interestingly enough, when you look at the survey
12 data, they don't report as many problems as students of
13 color. So I imagine, you know, some students, some white
14 students report problems, but they report such problems
15 usually at -- well, black students are three times more
16 likely to have had those kinds of problems, Chicano-Latinos
17 are three times more likely to have had those kinds of
18 problems with their predominantly white faculty.
19 Q You have reported unfair grading as being a phenomenon
20 that you think minor students feel?
21 A That's what the students report, yes, sir.
22 Q You are certainly -- would you generally agree that
23 white students sometimes feel they have been unfairly graded
24 by their professors?
25 A Again, that's why we have to move beyond a simple
85
1 individual assessment, so yeah, you could look at it and
2 look around and find individuals who felt that they were
3 unfairly graded, but when you look at a pattern of
4 responses, and this is why large-scale research is
5 persuasive, when you look at those larger surveys, you
6 find that white students are not as likely to report unfair
7 feelings that they were graded unfairly. They are not as
8 likely to report that they feel like their faculty has
9 trouble relating to them or interacting with them. They are
10 not as likely to report that they feel that their faculty
11 are hostile toward them.
12 Q I want to ask you some questions, then, about your
13 testimony with respect to the University of Michigan
14 specifically, both Michigan undergraduate school and the
15 law school. Am I correct in understanding that you have
16 formed a conclusion, the opinion, that the University of
17 Michigan campus at Ann Arbor is a racially hostile campus?
18 A I have formed the opinion that the students experience
19 racial hostility and experience -- that students of color
20 experience the campus as racially hostile, yes, sir.
21 Q And you feel the same way about the law school at
22 Michigan?
23 A In terms of?
24 Q It's a racially hostile campus?
25 A The students report that they have experienced that
86
1 law school as racially hostile and females report that they
2 have experienced it as being hostile to them as women.
3 Q And the racial climate at the law school is even
4 worse than it is at the undergraduate school; true?
5 A I don't know that I would stay worse, in that sense.
6 What I talked about yesterday is that it is -- it is more
7 intense and more extreme in terms of the environmental
8 relationships, and that often has to do with the fact that,
9 as you know, the people in that law quad live together, they
10 go to school together, so they have more extended and more
11 extensive interactions.
12 Q When you're suggesting students have experiences that
13 are hostile, are you suggesting that the campus itself is a
14 hostile racial climate at the law school?
15 A Yes, as I talked about it yesterday, that campus
16 is a reflection of institutional practices and human
17 relationships and also of history.
18 Q And both of these campuses at the undergraduate school
19 and the law school, they are hostile notwithstanding the
20 level of racial diversity that they have today; true?
21 A They are less hostile, this is true, they are less
22 hostile than they were historically, and less hostile for
23 the simple reason that they do have more racial diversity.
24 Because, for example, when you look at the
25 historical research, you see that the University of Michigan
87
1 in its earliest years, not its earliest years, within my
2 lifetime, at one point did not allow University of Michigan
3 students who were black to live on that campus.
4 Q That was a bad policy?
5 A That was a -- putting it very mildly, yes.
6 Q They don't have policies like that anymore, do they?
7 A Interestingly enough, that policy was not a written
8 and stated policy, it was a practice.
9 Q It was bad, though?
10 A And so there are still exclusionary processes that
11 operate on the campus, and yes, they are bad.
12 Q And are you aware of any official or exclusionary
13 policies today at the University of Michigan, the law school
14 or the undergraduate school, with respect to race?
15 A I'm not aware of any official or exclusionary
16 practices that are planned or intended as such, but I know
17 that there are mechanisms that exclude by race, so for
18 example, to the extent that one relies disproportionately
19 on the LSAT, knowing that there are racial discrepancies
20 in performance on the LSAT, then that particular, seemingly
21 objective and unracially biased decision-making process
22 becomes quite biased in its effect.
23 Q You mentioned, I think, a number of specific things
24 that you thought were problematic, I think, at the
25 undergraduate school, primarily. Let me just see if I
88
1 have got these right.
2 That black access, because of certain college --
3 because of certain entrance requirements, that it might
4 disadvantage black students because of their K through
5 twelve upbringing, K through twelve education?
6 A Are you referring to the --
7 Q No, your testimony. I have no --
8 A Yes, sir.
9 Q Is that true?
10 A Could you repeat the question?
11 Q Sure.
12 It's my understanding one of the problems you think
13 at the Michigan undergraduate school is that there are --
14 some of the entrance requirements are difficult in terms
15 of what they expect in terms of K through twelve level
16 education that disadvantages black students; is that one
17 of the problems?
18 A That is a position I have adopted, have sort of
19 adopted and stood by in my testimony and it has to do with
20 the patterns of educational deprivation that prevent black
21 students from securing expected levels of preparation and
22 then uses something that was beyond their power and control
23 against them and blocks them further in terms of educational
24 opportunities; that is, access to University of Michigan.
25 Q And one remedy for that would be to look at those
89
1 requirements and see if they can't be changed so that they
2 don't discrimination?
3 A Interestingly enough, we're doing exactly that in the
4 University of California system, and we have just completed
5 a system-wide UC admission conference where we're looking at
6 those admissions criteria and trying to understand the ways
7 in which they systematically discriminate against youngsters
8 who, given the opportunity, could do the work, and could
9 benefit from a rich experience in a prestigious university.
10 Q One of the problems you mentioned, also, was that some
11 black groups have trouble getting funding because of their
12 small size?
13 A Yes, sir.
14 Q That could be remedied by simply making changes with
15 respect to the size the groups needs to be to get funding,
16 true?
17 A That's one adjustment. The other adjustment is by
18 increasing the numbers of students in that category; that
19 is, increasing the racial diversity of the school.
20 Q There is more than one way --
21 A Which is what I would prefer.
22 Q There is more than one way to solve that problem,
23 true?
24 A Yes, there is, and some of those ways are quite
25 negative, because needless to say, before there were black
90
1 students in the pre-med program at University of Michigan,
2 it wasn't a problem.
3 Q You mentioned that there is a problem with police
4 discrimination, official police discrimination at the
5 campus?
6 A Yes.
7 Q Is that something that you think that the University
8 ought to do something to correct?
9 A I think the University has taken some actions to
10 correct some of the problems, but there is still quite a
11 ways to go, and certainly the answer to your question is
12 yes, because those police are under the control of the
13 University, they are Ann Arbor Campus Police.
14 Q Let me ask you about some of the things at the law
15 school, as I understand.
16 Some of this may be from your report, and if I --
17 if it's from there, I'll reference it.
18 Am I correct that there are students at the law
19 school who believe in the current environment that they
20 are looked upon as a representative of their race?
21 A That was a consistent theme coming through from the
22 students, because they were so few in number they felt
23 this burden as the only black person or the only Chinese
24 person in the room, so anything they said was taken as a
25 representation of the race and then they would go on and
91
1 talk about just the nature of the stereotyping that they
2 experienced; that is, they felt the pressure, not only
3 because they were, quote, unquote, the representative,
4 but because there was this extreme pressure where people
5 were looking at them to either see them validate the
6 preestablished negative stereotypes about the race or just
7 to see them stumble, and so that's where they felt that
8 pressure.
9 Q This is happening at the given current levels of
10 diversity at the law school, true?
11 A Yes, they were talking about it happening in the
12 current situation, but they pointed out that often in their
13 sections there was not diversity, they were the only person
14 in the section, so in other words, that diverse group is
15 divided across multiple classes, is divided across multiple
16 sections, and so that diversity, unless it's a sizable
17 critical mass, very quickly dilutes to tokenism, and when
18 it's a situation of tokenism, those students feel the
19 extreme negative pressures.
20 Q In fact, you found that in many classes only one
21 black, Latino or Asian American is in the class, true?
22 A That's correct.
23 Q Right now --
24 A That's what they were reporting. That's what they
25 reported.
92
1 And when you say in the class, you mean not in an
2 entering class or cohort, you're talking about in the
3 individual classes?
4 Q Classrooms.
5 A Yes, that's what they were saying.
6 Q And you found in talking with law school -- students
7 at the law school today, last year, that discussion of race
8 issues is often actually excluded from the classroom, true?
9 A In some instances they said excluded, in most
10 instances they said very poorly handled; that is, race would
11 be brought up, but the faculty, the administration were not
12 very skilled and committed in working through those issues.
13 Q And oftentimes faculty simply dismissed the discussion
14 of race as being unimportant in the classroom at the
15 Michigan Law School, true?
16 A That's what the students said they felt, yes.
17 Q And have you learned from the students that faculty
18 are neither prepared or inclined to teach about racial
19 issues at the Michigan law school, true?
20 A Well, back to your point about generalizations, they
21 said that about some of the faculty.
22 Q Okay. You reported it in your report, true?
23 A That some of the faculty were not prepared to discuss
24 these issues or interested in discussing the issues.
25 Q And on the rare occasions -- you found this, as well,
93
1 on the rare occasions when race was brought up in the
2 classroom at the University of Michigan Law School, faculty
3 called on the students of color for their opinion on how
4 black or Hispanic or minority people feel about race issues;
5 true?
6 A Some of the students did report such, yes, sir.
7 Q Professors often shut down discussions about race at
8 the Michigan Law School, true?
9 A I think that is a true statement, but the shutdown
10 is often in the form -- you were present for Ms. James'
11 testimony, and the shutting down is sometimes not even
12 conscious -- or I'm sorry, I guess that was one student
13 who talked about a listing, that was Connie's comment,
14 Escobar, about the listing of stereotypes, but then not
15 going on to a refutation of them. So the shutting down is
16 at times just stopping the process before it continues to a
17 productive conclusion, so raising stereotypes, but then not
18 challenging them.
19 Q Is it true that you found at the University of
20 Michigan Law School that there are those who believe
21 that minority students are stigmatized because of
22 affirmative action and the use of race in the admissions
23 process?
24 A That was an interesting discussion around that. There
25 were some students who made the point that that kind of an
94
1 association of affirmative action with stigma is just the
2 most recent in a long line of excuses and ways and
3 strategies of stigmatizing people by race, so it's the
4 most recent bases, because as I talked about yesterday, that
5 there was a time when presumed biological innate inferiority
6 was the stigma, and then there was a time when the cultural
7 deficits were a stigma, and even now we have some people who
8 talk about so-called socioeconomic deficits as a stigma,
9 so the point is that when you look at the history of race
10 in this country, there has always been some kind of
11 justification or excuse for the perpetuation of unequal
12 relationships between whites and blacks, as one group, that
13 place responsibility on blacks and not on whites and their
14 determination to preserve and protect their privileged
15 status.
16 Q I understand that you believe race ought to be used
17 in the admissions process and affirmative action ought to
18 continue. Would you agree that reasonable people could
19 disagree about whether or not race ought to be considered
20 in the admissions process at law schools and undergraduate
21 schools?
22 A I think reasonable people can disagree about any
23 number of subjects and topics, but I think it's vitally
24 important, first of all, that the evidence and information
25 be before them and that you have representation of
95
1 reasonable people in that discussion, and unfortunately,
2 what happens all too often is the students kept pointing out
3 that they were outnumbered, they did not have a voice, there
4 were not enough of them in the key places so that there was
5 a real and genuine debate, so it was a skewed debate, if
6 you will, a debate of unequal power, and so when you have
7 debates, quote, unquote, of unequal power it dictates as a
8 matter of the powerful group dictating to the weaker group.
9 Q You would agree, and so I understand, you believe
10 race ought to be a factor and affirmative action ought to
11 continue.
12 And would you agree that one of the negative
13 consequences of using race in the admissions process and of
14 affirmative action is it does result in some stigmatization,
15 that is, that some people will view minorities as getting
16 in with inferior academic credentials, and perhaps unfairly
17 so, but that's one of the negative consequences of using
18 race in the admissions process, can we agree on that?
19 A I can only accept that if you can take me to a time
20 when blacks weren't negatively stigmatized in the academic
21 setting, but I don't think you can find such a time in terms
22 of historically white institutions.
23 As you said, there were always excuses and reasons
24 and explanations for keeping black students out of higher
25 education, for restricting the access of Chicano-Latino
96
1 students, and as far as I'm concerned, responding directly
2 to your question, that's simply the most recent permutation
3 on that history of stereotypes and pseudo, quasi
4 explanations for exclusion.
5 Q Would you --
6 A So whatever stigma that blacks -- I'm sorry for
7 interrupting.
8 Whatever stigma that blacks carry, it's fanciful and
9 ridiculous to say that it's affirmative action, because that
10 stigma was there up to 1954, when obviously there wasn't
11 affirmative action and blacks were legally excluded from
12 attending the bulk of or a sizable part of schools. They
13 could not, we could not, go to school with whites, and so
14 obviously, affirmative action was not the explanation there.
15 Q Would you agree that it's a negative consequence for
16 a minority student to feel he has been stigmatized in the
17 sense that others may think that the minority student is
18 only at the school because of affirmative action and with
19 lesser academic credentials, is that a negative, can that
20 be a negative consequence for that minority student?
21 A Claude Steele still talks in his work, effectively,
22 about stereotype threat and recently his characterization of
23 stereotype threat picks up elements of what you're talking
24 about, but he goes on, as do most authors that do work
25 on this question, to point out that the real and true
97
1 stereotype threat is not the internal dynamics of these
2 young people, but it's the threat of being stereotyped by a
3 professor that has the power over your grade and who then
4 responds out of that stereotyping in such a way that it
5 doesn't matter what you do, that person has predetermined
6 that you are not a competent student, that you could not do
7 well with this subject matter. And so that stigmatization,
8 that kind of stigma, is more problematic when it is acted
9 upon by people in powerful positions.
10 Q In the study that you did, didn't you actually learn
11 that there were minority students who complained about
12 stigmatization?
13 A Oh, of course. They were complaining about racism
14 and racial discrimination and the stigma of race, so
15 absolutely.
16 Q That was important for --
17 A And how they were being treated.
18 Q I didn't ask the question very well.
19 Isn't it true that a number of students reported
20 that they felt stigmatized because of the way students at
21 the school perceived affirmative action; that is, a minority
22 student reported in your studies that they felt like many
23 students felt that the minority students that were there had
24 lesser credentials and he resented that?
25 A They resented the racial implication, yes. They
98
1 resented the implication that grouped them as a population
2 of students, assuming all of them, first of all, to be
3 unqualified.
4 Q In your report you report that there was a clear
5 feeling among many students, this is concerning the law
6 school, and it's on page seven, I believe, of your report --
7 A Yes, I have it. Yes, sir, I have it.
8 Q At the very bottom of the page, there was a clear
9 feeling among many of the students that they had to justify
10 being in the law school because they were taking the seat of
11 a better qualified white applicant.
12 Is it fair to say that was one of the experiences
13 that was an example of the kind of experience that these
14 minority students reported?
15 A Yes, and that's a discrimination experience, a racial
16 discrimination experience.
17 Q And that has, in your judgment, a negative impact on
18 someone, right, to have that kind of stigmatization?
19 A To be discriminated against racially, absolutely.
20 Q To feel badly because people think that they are there
21 with lesser credentials, for example, does that have a
22 negative consequence for the minority?
23 A See, it's my interpretation that they felt that
24 primarily because they weren't being treated fairly, and
25 they weren't being treated fairly because it was assumed
99
1 that they weren't qualified to be in the law school.
2 MR. KOLBO: Your Honor, I probably only have a few
3 more minutes. I don't know if you want to take a break now.
4 If the witness is tired.
5 THE COURT: Did you want to break or would you like
6 to finish with the --
7 THE WITNESS: Yes, sir, I'm fine.
8 THE COURT: Let's finish the cross examination.
9 MS. MASSIE: If I may weigh in here, I'll have to
10 throw myself on Mr. Kolbo's mercy, which is not a position
11 I like to be in.
12 MR. KOLBO: I'm very merciful.
13 THE COURT: Pardon?
14 MS. MASSIE: I was just going to ask if we could
15 take a break now. I would appreciate it.
16 MR. KOLBO: That's why I offered.
17 THE COURT: I have no problem taking a break. I
18 have no other matters this morning, so let's take about a
19 fifteen-minute break.
20 (Recess taken at 11:08 a.m.)
21 (Back on the record at 11:50 a.m.)
22 (Discussion held off the record.)
23 THE COURT: Okay.
24 MR. KOLBO: Your Honor, one of the advantages of the
25 break is that I have been able to shorten up the remainder
100
1 of my examination on the break, so.
2 THE COURT: Oh, okay.
3 BY MR. KOLBO:
4 Q Dr. Allen, you mentioned, I think earlier this
5 morning, that you're familiar with some polling data with
6 respect to diversity on affirmative action; is that true?
7 A I mentioned familiarity with polling as a process and
8 also I mentioned familiarity with polling, and then just
9 mentioned that I have familiarity with national survey data.
10 Q Okay. On the issue of the use of race in college
11 admissions and university admissions, are you familiar
12 with some polling data on that?
13 A I'm not clear on what you're asking me.
14 Q As a part of your work in this area of race and higher
15 education, have you become familiar with any polling data,
16 national polling data with respect to public opinion on the
17 importance or the propriety of using race as a factor in
18 admissions processes?
19 A I have seen several surveys, yes, and I think what I
20 was referring to is surveys that I had conducted where I
21 asked students about their attitudes in terms of their
22 attitudes toward affirmative action.
23 Q Okay. Are you familiar with the Roper study that was
24 done back in 1996 which inquired about public support for
25 the use of race as a factor in college and university
101
1 admissions?
2 A I don't remember that one specifically. I remember
3 several surveys and I remember much discussion and debate
4 about the wording of questions and that being a problem,
5 because depending on how the questions were worded, often
6 the argument was that what affirmative action does is
7 misrepresented, so in some instances the questions were
8 worded to suggest that affirmative action is a quota, in
9 other instances they were worded in such a way as to suggest
10 that it creates unfair advantages for students, so there
11 was much debate and I was familiar with some of the debate.
12 Q Are you aware of the fact that the Roper study found
13 that most faculty around the country were opposed to the use
14 of race in college and university admissions?
15 A I'm not aware of that particular study. I remember
16 vaguely one such study. I would have to see, of course,
17 how the particular question was worded.
18 Q Okay, sure.
19 A Because that part of our American character is going
20 to respond negatively to any kind of system that is unfair,
21 but when one presents a balanced picture of affirmative
22 action, then it's very clear that affirmative action is
23 structured to respond to systematic unfairness and to
24 address the fact that the society continues to discriminate
25 on the basis of race.
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1 Q Well, you would agree that there is disagreement in
2 this country about whether affirmative action ought to be
3 continued insofar as it's defined as the use of race, for
4 example, as a factor in college and university admissions?
5 A There is debate around that question, yes, sir.
6 Q Are you familiar with a poll conducted by the Zogby
7 Company about a year ago that found that most college and
8 university students are in favor of diversity, racial
9 diversity in colleges and universities?
10 A No, I'm not. I mean, I'd have to see the study and
11 the write-up to be reminded of it.
12 Q That wouldn't surprise you, though, would it?
13 A No, it wouldn't.
14 Q And you're not familiar with the findings of that poll
15 indicating that most of those same students are opposed to
16 the use of race as a factor in making admissions decisions
17 at colleges and universities, are you aware of that?
18 A I'm not aware of it, and again, I would have to see
19 the framing and the phrasing of the question, because you
20 can structure your questions in such a way that that very
21 problem you referred to earlier of selective bias, that that
22 very bias to responses can be generated.
23 Just because people don't understand what they
24 are -- what the true issue is at hand and what -- how, for
25 example, affirmative action operates, because it never
103
1 operates, for example, to admit unqualified students, it's
2 really a mechanism that helps to select among the qualified
3 students.
4 Q And are you familiar with a poll that was released or
5 publicized at least about two weeks ago from the Gallup
6 Corporation, CNN Gallup USA, that showed that 87 percent
7 of American adults said that colleges should not be allowed
8 to consider race as a factor in admissions decisions?
9 A No. Was that the framing of the question?
10 Q That's what I have in front of me, at least in terms
11 of the article that describes the poll.
12 A I would like to see the question.
13 Q Sure.
14 A But the article, I don't need to see.
15 Q Okay.
16 A I would need to see how the question was framed.
17 Q You don't want to see the article from USA Today about
18 the USA Today poll?
19 A I will look at it.
20 THE COURT: We're back to newspapers as being
21 the source, and again, with all due respect to the
22 newspapers --
23 BY MR. KOLBO:
24 Q Would you like to see -- do you want to see it?
25 A I enjoy reading newspapers, yes.
104
1 Q And I have extra copies here.
2 A Thank you, sir.
3 MS. MASSIE: Do you have an extra of that?
4 MR. KOLBO: Yes. The question is, how many.
5 There is one.
6 MS. MASSIE: Thank you.
7 THE WITNESS: This actually was helpful to see,
8 because again, it is wording that will trigger certain kinds
9 of responses.
10 The whole notion of racial preferences, for example,
11 is a misrepresentation of what affirmative action does, and
12 automatically disposes people to respond negatively, and
13 further you see here some suggestion that students who are
14 admitted on the basis of or using mechanisms of affirmative
15 action are not academically qualified, but again, that's
16 a misrepresentation, so quite naturally, people respond
17 by saying, well, what, you're letting people into the
18 University of Michigan who can't do the work?
19 But we know better that that, because we have a
20 history and a record and evidence that shows that students
21 who were admitted under affirmative action succeed
22 academically and then succeed professionally, so they can
23 compete, and what had kept them from competing in the past
24 was those kinds of historic racial barriers that didn't give
25 black students an opportunity to either succeed or fail, and
105
1 so what affirmative action has accomplished is to simply
2 give those students that opportunity, but once they are
3 there, they have to perform.
4 Q Do you consider and rely upon polling data as part
5 of your work as an educator and in the various work that
6 you do?
7 A I do survey work. Polling data, I read it with some
8 interest and curiosity, but again, often the challenge is
9 in terms of the validity of the framing and phrasing of
10 the questions and who it is that funded the poll.
11 Q You do polling, you do survey work of your own,
12 don't you?
13 A Survey data is different than polling data, because,
14 see, polling data, for example, is work where you are
15 tapping public opinion under contract to, say, Newsweek or
16 under contract to some other organization, and at times
17 those organizations have a specific goal in mind and with --
18 and not only specific goal, but a political goal in mind, is
19 a better way of putting it, and when you're doing scientific
20 research, that's the way you should do scientific research,
21 you should be trying to understand objectively the questions
22 and the relationships that you're studying.
23 Q Do you have any reason to believe that the USA Today
24 poll is biased because it was paid for or who sponsored it?
25 A I don't even know who paid for this. The Zogby
106
1 International Fund, I have never heard of them.
2 Q The article you have in front of you concerns the
3 Gallup USA poll.
4 A But it mentions the Zogby International Polling Group.
5 Q Zogby was the question I asked you a few minutes ago,
6 the Zogby poll, which is an older poll. It's also
7 referenced there.
8 A Right, okay. That, I don't know. And what I would
9 say is that -- well, I'll repeat what I said a moment ago.
10 It's hard to get agreement to racial preferences, and that's
11 understandable, but the way affirmative action operates,
12 it's a misrepresentation to talk about it as a racial
13 preference system.
14 Q You, in your survey, you ask students whether they
15 agreed or disagreed that different admissions criteria and
16 standards were justified for some racial minority students.
17 A Yes.
18 Q And that at law schools you found that most of the
19 students agreed with that proposition; true?
20 A I think so. Are you looking at a particular page?
21 Q I think it's at report page --
22 A It sounds like -- I accept that that was our finding,
23 yes, sir.
24 Q If you want to look at it, I think it's page 91, but
25 I wrote it down that you found an overwhelming majority
107
1 strongly agreed that different admissions criteria and
2 standards were justified for some racial minority students.
3 A Yes, that was an attitude or opinion question and they
4 did agree.
5 Q Is it fair to say that you agree with that
6 proposition, too?
7 A I agree with what that proposition implies, and it
8 implies that when you are selecting students, you recognize
9 that the broadest set of indicators of academic promise and
10 academic accomplishment would be to use -- should be used.
11 So in other words, it should not simply be a matter
12 of test scores or even a matter of test scores on GPA's,
13 but again, look -- as I said, looking at the whole person
14 and looking at that whole educational experience, so looking
15 at letters of reference, looking at community service, so a
16 thorough, whole reading of the academic record should be the
17 basis for the admissions decisions, so I fully agree with
18 that.
19 Q Okay. Last subject, you have mentioned that you're
20 familiar with Claude Steele?
21 A Yes, I am.
22 Q Are you familiar with the work of his brother, Shelby
23 Steele?
24 A The one book that I have seen of Shelby -- of Shelby
25 Steele's is The Content of Character, something like that.
108
1 Q Have you seen A Dream Deferred?
2 A I have seen the title. I haven't read the book
3 yet, no.
4 Q Do you understand that Shelby Steele is an opponent
5 of the use of race as a factor in college and university
6 admissions?
7 A I have heard as much.
8 Q Let me just read a statement?
9 MS. MASSIE: I'll raise an objection, continuing
10 relevance objection to this line of questions. I don't
11 think it has anything to do with anything what Shelby Steele
12 thinks, just because he happens to be related to Claude
13 Steele.
14 MR. KOLBO: Your Honor, I want to ask the question
15 just briefly whether he agrees or disagrees with an opinion.
16 THE COURT: You may ask him.
17 BY MR. KOLBO:
18 Q And this, I believe, is close to my last question, if
19 not my last question, Dr. Allen. I just want to read a
20 statement that Dr. Steele, Shelby Steele wrote in his book,
21 A Dream Deferred, and ask you simply whether you agree or
22 disagree with it.
23 And this is Dr. Steele: "The most
24 dehumanizing and defeating thing
25 that can be done to black Americans,
109
1 for example, is to lower a standard
2 in the name of their race."
3 Do you agree or disagree with that?
4 A I would be curious to know how he arrived at that
5 conclusion. I mean, is that based on a survey or focus
6 groups?
7 Q That's his opinion as expressed.
8 A Oh, that's his opinion?
9 Q Yes.
10 A Well, I don't think the evidence is there to support
11 his opinion, and if he clearly frames it as an opinion,
12 then it's an article of faith, and I'm hesitant to challenge
13 people's articles of faith until they represent them as if
14 they are fact.
15 Q I'm just asking you if you agree or disagree with
16 the statement that he has made. I take it you disagree?
17 A Would you read that statement again, please?
18 Q Yes.
19 "The most dehumanizing and
20 defeating thing that can be done
21 to black Americans, for example,
22 is to lower a standard in the name
23 of their race."
24 Agree or disagree?
25 A You know, when I read the history of what has happened
110
1 to black people in this country, and the various long line
2 of dehumanizing acts and experiences we have been subjected
3 to, I can't begin in good conscious to accept that this
4 particular assertion of the most dehumanizing thing you can
5 do to black people has any kind of credibility or makes any
6 kind of sense.
7 Black people have been lynched in this country.
8 Black people have been unfairly denied their rights as
9 citizens, and those kinds of harsh, extreme, degrading
10 experiences continue into the present, and so I, for a
11 variety of reasons, don't agree with that, and am really
12 just at a loss to even comment on it, because as you said,
13 it's his opinion, and as best I can tell, it has no basis
14 in fact.
15 MR. KOLBO: That's all I have. Thank you,
16 Dr. Allen.
17 THE WITNESS: Thank you, sir.
18 THE COURT: Any further questions?
19 MS. MASSIE: Thanks, Judge.
20 RE-DIRECT EXAMINATION
21 BY MS. MASSIE:
22 Q Hello, Professor Allen.
23 A Attorney Massie.
24 Q Mr. Kolbo asked you some questions about general
25 societal discrimination. You're aware that this is a case
111
1 about admissions to law school?
2 A (Nods head.)
3 Q Can you respond verbally?
4 A Yes, I am.
5 Q Sorry.
6 A I'm sorry.
7 Q And without affirmative action, use of grade point
8 average just operationalizes and intensifies the different
9 forms of societal and educational discrimination you have
10 been describing, right?
11 A That's correct.
12 Q So without affirmative action, using aggregate
13 differences in GPA, you use the denial of opportunity to
14 further deny opportunity?
15 A That's correct.
16 Q Is there a double standard in education in our
17 society?
18 A Yes, very much so.
19 Q What is the content of that double standard?
20 A That double standard takes the form of a pattern of
21 denying educational access and opportunities to people of
22 color and at the same time making those opportunities
23 plentiful, plentifully available to whites, and so it
24 translates into a double standard such that the two
25 groups, that is, whites and nonwhites, have not had equal
112
1 opportunities, but they are then later being held to a
2 quote, unquote, equal standard.
3 Q And in your view, is it necessary to take race into
4 account in college and graduate and professional school
5 admissions to the extent that it's necessary to do so to
6 counteract the effects of racism?
7 A I would say, yes, and then I go into and elaborate
8 that race is taken into account anyway by virtue of the fact
9 that the system of admissions privileges white experience
10 and white routes of educational preparation; that is, whites
11 have had advantages and have had preparation that then is
12 the basis for making those decisions about who is admitted,
13 so even when they talk about race not being present, it is
14 very much present, because it's a system that's dominated
15 by white privilege.
16 Q So if you were to force a university to eliminate the
17 consideration of race in examinations, we'd be asking them
18 to rubber stamp that double standard?
19 A Absolutely.
20 Q We'd be asking them to ratify existing discrimination
21 and bias?
22 A I agree.
23 Q You talked a little bit about the systematic effects
24 of unequal opportunity or the systematic nature of unequal
25 opportunity. I wanted to ask you, you spoke some and had an
113
1 exchange with the Court on how economic class and race are
2 related in systematic ways.
3 Does race have systematic effects in our society and
4 in education that go beyond, that extend beyond the question
5 of economic class?
6 A Yes, very much so. And the evidence is again
7 plentiful where we see that for black students or
8 Chicano-Latino students who are in a -- in the same
9 educational setting as white students of, you know,
10 comparable economic status, they experience different
11 educational outcomes; that is, those nonwhite students
12 experience different educational, because their experiences
13 within the school system are disadvantaged.
14 So we have literature that's talking now about
15 schools within schools, so you will have, say, a school
16 that includes both black and white kids and the school's
17 curriculum is fully developed, but when you look at the
18 patterns of difference by race in terms of which students
19 are in the advanced placement classes, which students are
20 in the academic preparation or the college preparatory
21 track, then what you see is discrimination or segregation
22 within the school; that is, the higher educational track,
23 that track that leads to the University of Michigan is
24 disproportionately white, and black students, Chicano-Latino
25 students are excluded from that track. Even though they are
114
1 all in the same building, their educational experiences are
2 quite different and they are segregated by race.
3 Q And in fact, the work of Claude Steele and others make
4 it clear that even for two students sitting in the same
5 classroom, even for the lucky black or Latino middle class
6 student who doesn't get tracked, the experience of that
7 classroom is totally dependent on the race of the person
8 doing the experiencing?
9 A That's very true. He does an excellent job in
10 systematically in clinical and experimental situations
11 proving that point.
12 Q So socioeconomic status is no substitute for
13 affirmative action for race, because it's not race?
14 A Exactly.
15 Q There is a phenomenon of black movement into the
16 suburbs into some areas, including this one. I know you
17 lived here for some time and did some studies on the upper
18 midwest and on Michigan. Are you familiar at all with the
19 process of blacks suburbanization saying into Southfield,
20 Michigan?
21 A Yes, I am.
22 Q And what can you tell us about how that
23 suburbanization process has affected the educational
24 experiences and prospects of young black people?
25 A What we have seen, and I should give you the sort of
115
1 basis for the work I have done, in the book, Race and the
2 Quality of Life in America, we looked at that very question
3 of suburbanization, and then as director for one year of the
4 Detroit area study, which is the study of the three-county
5 metropolitan area, we looked at race and residence.
6 And what has happened is that even with that
7 suburbanization, then what unfolds is a process where
8 those suburbs become racially segregated, so Inkster
9 becomes a -- it's a suburb, but it is racially segregated,
10 it becomes a racially segregated suburb.
11 Similarly, the case with Southfield, and with the
12 turn toward a more racial, racially segregated suburb comes
13 the associated turn as regards the declining quality of
14 schools and the availability of resources, just because of
15 the patterns and then the ways in which schools are funded.
16 And so what happens is that you see repeated
17 patterns of educational deprivation by race that have been
18 characteristic of central cities that had largely black
19 populations being now played out with suburbs that move
20 to a point where they are majority black.
21 Q And they become majority black in large part because
22 of white flight; correct?
23 A Absolutely. We have had a history of pattern of
24 whites fleeing residential proximity with blacks and that
25 ties into all the stereotypes about black people, it ties
116
1 into all the stigma associated with blackness, and it's very
2 difficult to find integrated communities in this country.
3 Q And the white people that contribute to the phenomenon
4 with the white flight, are all those people conscious
5 bigots, in your opinion?
6 A Not really, not really. They often will respond
7 unconsciously, but they respond consistently and in a
8 patterned way, and that is to move out of any community
9 that is beginning to get any semblance of a sizable black
10 population, or for that matter, any semblance of a sizable
11 critical mass of Chicano-Latinos.
12 Q And you can have that kind of unconscious effect
13 because race structures our experiences and our perceptions
14 so fundamentally in this country?
15 A Exactly.
16 Q You have studied race and racism in various sectors of
17 life, health, housing, education, other kinds of welfare
18 questions, and you have studied stereotypes and stigma and
19 the phenomenon of racism for decades now?
20 A Yes.
21 Q In your opinion, is affirmative action the source of
22 racial stereotypes and stigmas that say that black and
23 Latino people are intellectually inferior?
24 A Absolutely not.
25 Q What do you base that on?
117
1 A Just on a reading of an accumulated scholarship
2 in terms of history, historical studies, in terms of
3 sociological studies that demonstrate that those kinds of
4 negative stereotypes preceded affirmative action, and
5 indeed, a stated purpose of affirmative action was to create
6 mechanisms for tearing down those historic and established
7 and longstanding racial stereotypes, so it's actually
8 fanciful and laughable to talk about affirmative action
9 as being a cause of such stigma.
10 Q You mentioned the testimony of Crystal James several
11 times in your testimony.
12 A Yes, I have.
13 Q And Ms. James said that when she was at Sanford, which
14 had affirmative action at the time, she didn't feel like
15 anybody ever thought she was there because of affirmative
16 action.
17 A That's very true.
18 Q And then what happened when she went to UCLA after
19 affirmative action was eliminated and the school was
20 resegregated?
21 A Well, the paradox is that when she went to UCLA and
22 affirmative action was not a factor in her selection, she
23 in fact experienced discrimination because people used
24 that assumption as a basis for saying that she was not
25 educationally qualified and creating extreme psychological
118
1 distress for her and isolating her socially and undercutting
2 her academic performance. So that was a paradox.
3 And the situation where she was admitted under the
4 basis of affirmative action, no stigma was attached, and
5 in the reverse of that situation, that is, when she was
6 admitted to the University of California Law School, UCLA
7 Law School after affirmative action, that is, without any
8 kind of assistance from affirmative action, she nevertheless
9 was penalized and stigmatized as using that as a basis for
10 saying that she was not educationally qualified and should
11 not be there.
12 Q And does it help support your position that we need
13 greater numbers of black and Latino and Native American
14 students in order to reduce stereotyping and stigma and
15 hostile environment?
16 A I think that is absolutely the case and I think that
17 the past 30 years has shown us that this is true and we are
18 a better society now as a result of the fact that there is
19 now diversity in places where there hadn't been diversity,
20 and affirmative action was one of the chief mechanisms for
21 opening up spaces where not only black people had been
22 excluded from, not only Chicano-Latinos had been excluded
23 from, but women had been excluded from, and now that we
24 have opened up the society, we find that many of those
25 institutions are much stronger as a result.
119
1 Q We have come a long way, but we still have a long way
2 to go?
3 A Absolutely.
4 Q And speaking of the University of Michigan law school,
5 in particular, the U of M law school has come along way in
6 your view, isn't that right?
7 A I agree, most definitely.
8 Q And it still has a very long way to go?
9 A Very correct.
10 Q Is eliminating affirmative action there the first
11 step?
12 A The first step backward.
13 MS. MASSIE: Thank you.
14 THE WITNESS: Thank you.
15 THE COURT: Professor Allen, can I ask you, take
16 your expert witness hat off for a second and put your
17 teaching hat on for a second, because my clerks and I talked
18 about this, and I looked at your survey and so forth, and I
19 guess I need some more definition of some words that I know
20 you can help me with.
21 THE WITNESS: I'll try, Your Honor.
22 THE COURT: And in your surveys, you talk about
23 people, asking them about their racial or cultural
24 identification and you use the word, Latino, and in this
25 trial we have heard lots of words. If you could define
120
1 that for me.
2 The reason I ask that is, just a little while ago
3 you used other words and so forth. If you could, I'm going
4 to ask you to define words, your teaching hat more than
5 anything, because I have to learn a little bit more. I
6 thought I knew until I got here and I think you're the
7 person.
8 If you could define that for me, I'd appreciate
9 that.
10 THE WITNESS: That terminology is actually, Your
11 Honor, a reflection of my learning by virtue of moving out
12 to California. As you know, we in the midwest tend to use a
13 comparable term of Hispanic.
14 THE COURT: Right. That was my next question.
15 THE WITNESS: And by virtue of moving into
16 California and being educated by my colleagues there, I have
17 come to use a broader and preferred term of Latino, which
18 is of Latin American ancestry, basically the point of
19 reference, but in addition, to talk and think in terms
20 of Chicanos, who are more so Mexican Americans, because
21 in trying to understand the complexities of racial
22 discrimination, say, in California, the one change that
23 comes very clearly is that to some extent the experiences
24 of Chicanos are different from, say, a Latino, and this
25 is -- it was really quite interesting for me to understand
121
1 and learn, for example, that there was a sizable Jewish
2 population in Mexico from an earlier point of migration
3 out of Europe for reasons of the Holocaust and related
4 reasons, and so -- but the point being that there is a
5 distinction between, say, a Chicano and a Latino in terms
6 of culture, in terms of experiences, and in some cases even
7 in terms of phenotype; that is, skin color and related
8 issues. So now that's my best, and I have to qualify, it's
9 a clumsy explanation.
10 THE COURT: But it's a good one.
11 THE WITNESS: There are experts that could do a
12 better job.
13 THE COURT: Could I ask you one more question, and
14 that has to do with Asian Americans and then Pacific
15 Islanders.
16 THE WITNESS: Yes, sir. That again has been, and
17 Your Honor, you're tapping into what has been the wonderful
18 part of my education in California, because, and strictly
19 and solely due to that diversity there, where people have
20 spelled out to me the diversity, first of all, within the
21 group of Asian Americans, that there are these rich and very
22 important differences between the Chinese and Korean and
23 Vietnamese experiential groups in terms of not only language
24 and culture, but of course, there are the similarities,
25 but then further that linking to the Pacific Islander
122
1 population, people from Samoa and from that wide range
2 of Pacific Islands and even to a lesser extent Native
3 Hawaiians, but once more, we can think in terms of them
4 as a larger category, but being sensitive to the rich
5 differences underlying.
6 So the Asian Americans and the diversity within the
7 group and then the Asian American population vis-a-vis, say,
8 Pacific Islanders, for example, you might even -- well, I
9 have said enough.
10 THE COURT: Let me ask you one more question, and
11 again, you said something before, and I understand, you
12 don't have to give me the answer again, but in terms of
13 the effects of what happened after Proposition 209 in the
14 educational, and I suspect in other areas, because Counsel
15 gave me a case to read which I have in terms of contracting,
16 and so either tell me as a sociologist and maybe just as a
17 citizen out there, in short explanation, tell me, as you
18 perceive it, what other effects it had in areas probably
19 just generally.
20 THE WITNESS: Your Honor, it --
21 THE COURT: Is that too wide of a question?
22 THE WITNESS: No, sir.
23 That proposition was demoralizing in many respects.
24 I mean, it sent a message that rather than encouraging and
25 creating hope for students of color who had been excluded,
123
1 that instead there would be no opportunities for them at
2 the University, at the most prestigious universities in
3 California, the UC system, and so the effects have been
4 multiple.
5 I mean, psychologically negative effect, but also a
6 negative effect in terms of schooling process for many of
7 those young people, because often when you're talking about
8 an inner city school situation, it's a situation where it's
9 hard to find hope anyway, and so to the extent that this
10 additional life preserver is taken away, then it just has
11 negative consequences for students.
12 And physically, for us, for me, it's just changed
13 my -- the richness of my experience at the University of
14 California-Los Angeles. I went there because it was a place
15 that combined diversity and excellence, and as I said, in
16 the first year of implementation of Prop 209 there was a
17 40 percent decline in the Chicano-Latino population, a
18 50 percent drop in the black student population, and so
19 thereby depriving us of the rich contributions of those
20 students.
21 And there were related drops, recent stories that
22 research is showing us, in the new hires of white female
23 faculty. We have had a 38 percent decline in the new hires
24 of white females since Prop 209 was implemented and I think
25 all of this just reminds us --
124
1 THE COURT: It just flowed down?
2 THE WITNESS: Yes, sir, and we still need those
3 kinds of mechanisms.
4 THE COURT: I appreciate it. It's been a pleasure
5 having you.
6 THE WITNESS: Thank you, sir. It's been a pleasure
7 being here.
8 THE COURT: And I enjoyed learning from you.
9 THE WITNESS: Thank you, Your Honor.
10 THE COURT: Okay. Next witness.
11 MS. MASSIE: Mr. Washington will take the next
12 witness.
13 THE COURT: You're letting him work today?
14 MR. WASHINGTON: I'm going to work today, Judge.
15 We would like to call Dr. Eugene Garcia, from the
16 University of California.
17 THE COURT: Okay. Dr. Garcia, would you be kind
18 enough to raise your right hand?
19 We're going to blame the bad weather on you. Did
20 you bring it with you?
21 THE WITNESS: I think so.
22 E U G E N E G A R C I A,
23 having been called as a witness herein, and after having
24 been first duly sworn to tell the truth, the whole truth
25 and nothing but the truth was examined and testified.
125
1 DIRECT EXAMINATION
2 BY MR. WASHINGTON:
3 Q Sir, would you state your name and your business
4 address for the record, please?
5 A Yes. My name is Eugene E. Garcia. I'm at the
6 University of California-Berkley. I'm Dean of the Graduate
7 School of Education there.
8 Q And Dr. Garcia, before you became Dean of the Graduate
9 School of Education at the University of California, can you
10 tell us where you grew up?
11 A Yes, I grew up in the southwestern part of the United
12 States, around Four Corners area, specifically, in the area
13 of the western slope of Colorado, small town of Fruita,
14 actually, which is close to a larger town of Grand Junction,
15 Colorado.
16 Q And what did your parents do, sir?
17 A They were farm workers, we were migrant workers and
18 share croppers.
19 Q And what is your native language?
20 A Spanish is my native language.
21 Q Did you go to high school in that area, Four Corners?
22 A Yes, I did.
23 Q And where was that?
24 A That was in Grand Junction, Grand Junction High
25 School.
126
1 Q Did you have occasion while you were in high school
2 to take an SAT test?
3 A I remember it very well, yes, I do.
4 Q And I won't ask you what you got, but did anybody talk
5 to you afterwards and give you any kind of counseling about
6 what it all meant?
7 A Sure. Those of us who were considering going on to
8 college were asked to take the SAT. My baseball coach is
9 the one that actually suggested I do that, because I was
10 looking at a baseball scholarship, and the counselor,
11 therefore, called all the individual students one by one
12 to indicate to them how they had done.
13 So you may remember your own SAT scores, they are in
14 percentile ranks, they give you these, and as a high school
15 senior, at least many of my colleagues and I could not
16 understand what all these numbers meant, and so I did have
17 a discussion with him right after that score came.
18 Q And did he give you some advice as to what your
19 prospects were?
20 A Well, he told me I didn't do very well, but said that
21 was okay, but one comment he made very directly was, in a
22 very supportive way, is that, he said, you'll never be a
23 college professor.
24 THE COURT: No comment?
25 THE WITNESS: No comment.
127
1 THE COURT: We had a discussion about who becomes
2 different things.
3 THE WITNESS: And I didn't -- by the way, I didn't
4 ever think I would be a college professor, so.
5 BY MR. WASHINGTON:
6 Q What have you done for the last 28 years of your life?
7 A Most of the early time, of course, after high school
8 was spent at a community college, then to a four-year
9 university, on to graduate school, and then the last
10 26 years in the -- in higher education with some time in
11 the Federal Government.
12 Q And for the 26 years have you been a college
13 professor?
14 A I have.
15 Q And during the course of that 26 years, have you had
16 occasion to return to the SAT test?
17 A I have on several occasions, correct.
18 Q You have published books on the SAT?
19 A I have, on the SAT, commentary on the SAT, yes,
20 correct.
21 Q Let me back up a little bit.
22 A Sure.
23 Q You said -- if you would give us just a review of your
24 education, sir.
25 A Sure. I again went to community college, off to the
128
1 University of Utah, where I graduated with a Bachelors in
2 Psychology, and off to a doctoral program at the University
3 of Kansas, a degree in human development and psychology.
4 Q And when did you take your PhD?
5 A When?
6 Q Yes.
7 A 1972.
8 Q And did you then do post-doctoral work?
9 A Yes, I did post-doctoral work at Harvard University.
10 Q And in what field did you do post-doctoral work?
11 A Child development.
12 Q And did you become -- did you then go do any research
13 for the National Research Council?
14 A Yes. I was a post-doctoral fellow that was funded
15 thereafter to do work in the areas of language development
16 and academic achievement.
17 Q And did you receive other post-doctoral fellowships?
18 A Yes. I also received a post-doctoral fellowship from
19 the Kellogg Foundation, a leadership foundation program that
20 tried to provide support for, broadly, looking at issues of
21 education, social development, et cetera.
22 Q And where did you begin your career as a college
23 professor?
24 A Back at the University of Utah, where I had received
25 my BA.
129
1 Q And what year did you begin as a college professor?
2 A 1972.
3 Q And in what department did you enter the University of
4 Utah?
5 A Department of Psychology.
6 Q And after the University of Utah, did you go work at
7 another college?
8 A Yes, I have been at the university -- then from Utah I
9 went to University of California-Santa Barbara.
10 Q And were you a chair of any departments there?
11 A I was the Chair of the Chicano Studies Department
12 there.
13 Q And from Santa Barbara, where did you then go?
14 A I went to Arizona State University.
15 Q And how long were you at Arizona State University?
16 A Approximately seven years.
17 Q And what was your position there?
18 A I was the Director of a research center, Bilingual
19 Education Research Center.
20 Q Did you then move back to the University of
21 California?
22 A Yes, I then returned to the University of California
23 Santa Cruz.
24 Q In what position?
25 A As Chair of the Education Department at Santa Cruz.
130
1 Q And how long were you at Santa Cruz?
2 A I was at Santa Cruz about eight years.
3 Q And did you have, then, occasion to work for the
4 United States Government?
5 A Yes. I went to work in the early days of the Clinton
6 Administration as an Assistant Secretary Director in the
7 Office of -- Department of Education.
8 Q And what particular office were you working in?
9 A I was the Director of the Office of Bilingual
10 Education and Minority Language Affairs.
11 Q And how long did you work for the United States
12 Government?
13 A Just two years.
14 Q And then where did you go?
15 A And I took my present position at UC-Berkley.
16 Q And did you become immediately the Dean at the
17 University?
18 A Yes, I became the Dean.
19 Q Now, Dr. Garcia, have you had occasion to publish any
20 kinds of work on education and in particular education of
21 Latinos and under-represented minorities?
22 A Yes, quite extensively worked in the area of language,
23 culture and schooling with the focus on Latino students,
24 Mexican American students, Chicano students, et cetera.
25 Q And can you give me some examples of work you've
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1 published?
2 A Sure. Early work in language development of children
3 who are multilingual, who come from homes in which two
4 languages are spoken, work which is -- has detailed the
5 kinds of educational achievement and educational experiences
6 of those same kinds of students as they move through the
7 school system, and then work which looks at the academic
8 achievement and relationship of academic achievement and
9 opportunities for achievement and access to higher
10 education.
11 Q And have you also studied a field called
12 psycholinguistics?
13 A Yes. My training is primarily in the area of
14 language development, child development.
15 Q Tell me what psycholinguistics mean.
16 A It's the study of the development and use of language
17 by individuals in multiple settings and how individuals
18 function to use language and acquire it to do so.
19 Q And have you had, in addition to publishing books on
20 these subjects, have you published a number of articles and
21 publications on the subject of the education of Latinos and
22 also of under-represented minorities generally?
23 A Yes, I have, quite extensively. That work, again, is
24 either large scale analyses for policy purposes, looking at
25 achievement access, et cetera, and more intensively looking
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1 at what actually goes on in classrooms.
2 MR. WASHINGTON: Your Honor, I would offer
3 Dr. Garcia as an expert in the field of education and
4 also in the field of psycholinguistics.
5 THE COURT: Any objection?
6 MR. KOLBO: I have no objection.
7 THE COURT: He shall be qualified to testify in
8 those areas.
9 MR. WASHINGTON: Thank you very much.
10 BY MR. WASHINGTON:
11 Q Dr. Garcia, you have said you have been in the
12 University of California system for a number of different
13 spans of time. Can you describe for us what the University
14 of California is?
15 A Sure. California is really made up, through the
16 process of a master plan of higher education, made up of
17 three different institutions; community colleges, which
18 service essentially two-year educational -- or offers a
19 two-year educational arena, and then two four-year systems,
20 CalState University system and a UC system.
21 The University of California system is, in
22 California, identified as sort of the premier institution.
23 It makes eligible and attempts to educate the top twelve
24 and-a-half percent of the students of California. The
25 CSU then takes the other 40 percent, and the remainder are
133
1 encouraged to attend the community colleges. In essence,
2 California has attempted to make higher education a reality
3 for all students in California.
4 Q And the University of California, that twelve
5 and-a-half percent figure that you mentioned, where does
6 that come from?
7 A It's actually in the master plan, and the idea of the
8 top twelve and-a-half percent is to try to take a set of
9 students who have been academically successful at the
10 high school level in California, recall the specifics
11 that California is only allowed to serve ten percent
12 nonCalifornia residents, so University of California serves
13 primarily residents of California, and the intent there is
14 to take those top students and give them the very best
15 educational experience.
16 Now, the University of California constitutionally
17 and otherwise makes clear that its goal is to produce the
18 leaders for the future, leaders necessary in all domains
19 of the social fabric of California, the economics, the
20 political, the educational, the intellectual.
21 THE COURT: Just one quick question. So what you're
22 telling me that is the top twelve and-a-half percent of
23 students no matter what high school they went to?
24 THE WITNESS: Right.
25 THE COURT: No matter what neighborhood it's from or
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1 anything else, they are, if they chose to, they are allowed
2 to go to --
3 THE WITNESS: They become eligible. We have the
4 term, eligibility. They become eligible to come to the
5 University of California, yes.
6 THE COURT: Okay.
7 THE WITNESS: And it is a statewide eligibility.
8 THE COURT: And so assuming they want to, they are
9 guaranteed, and the next 40 percent is guaranteed, also?
10 THE WITNESS: Correct, the next 40 percent is
11 guaranteed a place in the CalState University system.
12 THE COURT: No matter?
13 THE WITNESS: Right.
14 THE COURT: And then the rest are also in the
15 community college kind of setting?
16 THE WITNESS: A community college, correct.
17 THE COURT: Even if they graduated last in their
18 class?
19 THE WITNESS: That's right.
20 THE COURT: No matter what school they went to?
21 THE WITNESS: That's right. Right. That's the
22 intent, is all students should have a chance to go on to
23 higher education.
24 THE COURT: So for instance, if -- we have heard
25 here and it's certainly a reality that lots of school
135
1 districts are segregated because that's how it happens
2 historically and so forth, so no matter what school, no
3 matter where it is, twelve and-a-half percent of those
4 students will --
5 THE WITNESS: Not twelve and-a-half percent of those
6 students, twelve and-a-half percent in the state. So you
7 may have some high schools that may have the entire senior
8 class in the twelve and-a-half percent and some high schools
9 may have none.
10 THE COURT: I got you. That was my point.
11 THE WITNESS: And that is the problem, that we do
12 have high schools that are highly segregated serving
13 segregated students, particularly Latino students.
14 THE COURT: Right.
15 THE WITNESS: That do not have any eligibility.
16 THE COURT: So if those schools -- the top twelve
17 and-a-half percent goes in that pool of the twelve
18 and-a-half percent?
19 THE WITNESS: That's right.
20 THE COURT: So they are not guaranteed to do that.
21 THE WITNESS: No.
22 THE COURT: The only thing they are guaranteed is
23 somewhere in the twelve and-a-half, the 40, or the community
24 college?
25 THE WITNESS: That's correct, that's correct, yes.
136
1 BY MR. WASHINGTON:
2 Q Just so I understand it, the twelve and-a-half percent
3 is the statewide figure of people who are eligible --
4 A Right.
5 Q -- to go to the University?
6 A Of high school graduates that are eligible.
7 THE COURT: I understand it's the state, not
8 schoolwide?
9 THE WITNESS: Statewide, not school by school.
10 THE COURT: There are some states that are talking
11 school by school, are there not?
12 THE WITNESS: Texas.
13 THE COURT: I ask you, because I know that in the
14 last Administration, that there was some discussion about
15 that.
16 THE WITNESS: Texas has adopted for the UT system,
17 UT Austin, UT Texas A&M, the top ten percent of students in
18 their high school.
19 THE COURT: In their high stool?
20 THE WITNESS: Context-based percentage, California
21 is statewide.
22 THE COURT: Statewide?
23 THE WITNESS: Statewide.
24 THE COURT: So the only guarantee you have, you know
25 you can go to school, but it may be a community college?
137
1 THE WITNESS: Correct, correct.
2 THE COURT: I didn't mean to interrupt.
3 MR. WASHINGTON: Sure, no problem, Judge.
4 BY MR. WASHINGTON:
5 Q Dr. Garcia, what's the difference between the
6 University of California system and the California State
7 College --
8 A Sure.
9 Q -- and the community college system, educationally
10 speaking?
11 A The University of California offers a much more
12 diverse set of options for students. Keep in mind the
13 University of California is the only part of the system
14 that offers the doctoral degree, so they are identified as
15 research institutions, so the faculty members who are
16 appointed to serve in the University of California are
17 judged primarily on the research and scholarship
18 capabilities.
19 They also teach, and the idea here is to place
20 our very best students with our very best faculty with the
21 intent of producing the best intellectual climate, and
22 again, producing the kind of leaders that we need for the
23 future.
24 Q And can you then contrast that to the State College
25 system in California?
138
1 A The State College system is not driven by research
2 productivity or scholarship. That doesn't mean the faculty
3 there don't care about it, it's just that they are primarily
4 a teaching institution. If you can characterize both the
5 CSU and the community college as a dissemination place where
6 students can gain knowledge, well, the University of
7 California is a place where knowledge is being discovered
8 and imparted at the same time, those are the real
9 distinctions, I think.
10 Q Okay. How many campuses does the University of
11 California have?
12 A The University of California has eight campuses that
13 serve undergraduates, and then a ninth campus, that's a
14 health science center, medical school.
15 Q And now you have -- we have heard a lot of talk about
16 two of those campuses, Berkley and UCLA?
17 A Uh-huh.
18 Q Tell us the other campuses in the University of
19 California system.
20 A Sure. They are -- most of them run down the coast, so
21 they are Davis, Berkley, UCLA, San Diego, Santa Barbara and
22 Santa Cruz, and I think that finishes them off.
23 MR. PAYTON: Riverside.
24 THE WITNESS: Riverside, sorry. And we have a new
25 one scheduled to come on board, Merced, in the central
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1 valley.
2 BY MR. WASHINGTON:
3 Q Dr. Garcia, you mentioned the basic plan for the
4 University of California. Is there -- is it charged in some
5 way to provide education for the entire State of California?
6 A It is. Constitutionally, it was given the charge
7 of educating all students in California.
8 Q And does the constitution speak in terms of
9 representation?
10 A Yes, it does, specifically, right.
11 Q Can you tell me what in general the charge of the
12 University of California was?
13 A The charge is to make sure that the University of
14 California in fact does serve all the citizens of the State
15 and the children of those citizens, and is intended to be
16 inclusive. The Board of Regents have reaffied that position
17 on several occasions throughout the several hundred years,
18 the couple, 125 years or so of the University's existence.
19 Q So the University of California is supposed to
20 represent the people of the State of California?
21 A Correct, correct.
22 Q We have heard a lot of talk about it. Can you tell
23 us, just break down for us the racial and ethnic background
24 of the people of the State of California today?
25 A Sure, sure. I think we passed the magic point about
140
1 three months ago, my demographer colleagues told me, in
2 which California has actually become overall a minority/
3 majority state; that is, there are no majority in California
4 in terms of ethnic, racial or typical ways of identifying
5 groups in the state and in the nation.
6 In the K twelve sector, we have become a minority/
7 majority K twelve sector about seven years ago, in which,
8 again, within the public school system there is no one
9 group of students that serve as a majority.
10 The fastest growing population in California is
11 the Latino population. That population is growing at
12 approximately five to six percent per year, and again, if
13 we do the projections, probably in somewhere around 2015 we
14 will likely be a state in which the K twelve public schools
15 will be predominantly Latino.
16 THE COURT: Define Latino for me.
17 THE WITNESS: Sure. We define it primarily by
18 asking individuals what they want to be called, so in
19 California, in 1992, there was a statewide study in which
20 randomly selected individuals who had identified themselves
21 as either Hispanic, Spanish surname or other Latin
22 background in the State of California and essentially
23 asked them what they would like to be called.
24 They most -- 60 percent of them identified
25 themselves as Latino, the next category was Mexican
141
1 American, then Chicano, and then down the line. So when
2 we refer to Latino population, we're referring to a group or
3 a set of population that had been identified either by the
4 U.S. Census as a Hispanic American, Mexican American,
5 et cetera, but I use the term Latino as one that in fact
6 individuals who come from those categories as a majority
7 feel is a term that identifies them.
8 THE COURT: But it includes all of them?
9 THE WITNESS: It includes all of them, right.
10 THE COURT: All right. Thanks.
11 BY MR. WASHINGTON:
12 Q And Dr. Garcia, as I understand it, at this point the
13 white population of California is less than 50 percent of
14 the population as of today?
15 A That's correct.
16 Q And now, how has that been reflected -- and let's go
17 before 209. Well, actually, let me back up.
18 You mentioned eligibility for the University of
19 California system?
20 A Correct, right.
21 Q What does it mean to be eligible for the University of
22 California?
23 A Very specifically, there are several ways to be
24 eligible. The predominant way is to actually take the
25 required courses in the high schools that one is attending,
142
1 and those courses are prescribed by the University of
2 California. There are so many units in mathematics, so many
3 units in social studies, so many units in science, foreign
4 language, two years of a foreign language, et cetera.
5 So in order to become eligible, you must at least
6 have taken those courses as identified by your high school
7 as approved by the University of California.
8 The second indicator or qualifier of eligibility is
9 a 3.2 grade point average in those courses, so that if you
10 have taken those courses and have obtained a 3.2, then you
11 become eligible, you become part of that twelve and-a-half
12 percent.
13 How do we know that's part of the twelve and-a-half
14 percent? We do studies about every five to six years,
15 looking at what we need to do to identify the top twelve
16 and-a-half percent and we have come to this set of
17 indicators. A 3.2 grade point average in those classes
18 will roughly identify twelve and-a-half percent of the
19 high school graduates.
20 Q Dr. Garcia, before 209, can you tell me of the various
21 ethnic and racial minorities in California, were twelve
22 and-a-half percent of all of those various populations
23 eligible for admission to the University of California?
24 A No. Approximately three percent of Latino students
25 were eligible to the University of California, 3.8 percent
143
1 or close to that amount, and blacks, too, about 3.2 percent,
2 so even though -- as a matter of fact, larger portions of
3 the K twelve population and of high school graduates, they
4 didn't come close to the twelve and-a-half percent.
5 Q So as I understand it, even before 209, only about
6 three percent of the Latinos who were graduating from high
7 school were even eligible --
8 A That's correct.
9 Q -- at the University of California?
10 A That's correct.
11 Q And, I think you said, the figure was 3.8 percent for
12 black students?
13 A No, 3.8 for Latinos, 3.2 for African Americans.
14 Q Now, once you become eligible to go to the University
15 of California, what do you have to do to get into the
16 University of California?
17 A You must, of course, fill out the forty-page
18 application, like anyone else.
19 Q Forty pages?
20 A Forty pages.
21 THE COURT: Forty pages?
22 THE WITNESS: It's very complex. Let me put it this
23 way: Even the Board of Regents wonders how anybody is able
24 to fill out the application.
25 But put simply, you have to apply, and you're
144
1 allowed to apply to three campuses, and you must essentially
2 put forward the paper work for application.
3 BY MR. WASHINGTON:
4 Q And of the campuses of the University of California,
5 is there any differentiation between them in terms of the
6 educational programs and quality and so forth that they
7 offer?
8 A Many colleagues -- of course, I taught at three of
9 them, at Santa Barbara and Santa Cruz and at Berkley, and
10 I can only say that amongst the students and families
11 of California, there are very competitive and selective
12 universities. Those three now are Berkley, UCLA and
13 San Diego. And when I mean selective, I mean that very
14 large numbers of students are turned away even after they
15 fill out the application and even though they may be
16 eligible, they are not admitted to those institutions.
17 Q And in addition to being selective, would it be fair
18 to say that the University of California at Berkley and UCLA
19 are world renowned as educational institutions?
20 A Yes, yes, they are.
21 Q And have a number of Nobel Prize winners?
22 A All the indicators, scholarly, publications,
23 citations, the kind of things that us academics worry
24 about, yes.
25 Q And how did -- I still want to stick on the before-209
145
1 period. How did one go about applying to University of
2 California at Berkley or the University of California at
3 Los Angeles?
4 A One could identify three campuses in the application
5 and you would list your preference, one, two, three, and
6 most students would essentially go right on down the line,
7 Berkley, UCLA, San Diego, for preferential or selective
8 activity.
9 Q And what were the criteria for selection prior to 209?
10 A We used race, we used affirmative action as one
11 factor. Keep in mind that the students still needed to be
12 eligible. They met the eligibility requirements, so they
13 were in the top twelve and-a-half percent.
14 In addition to that, they used SAT's and GPA's, in
15 some cases, very formulaic, to determine admissions, so in
16 some campuses up to 75 percent of the class was admitted on
17 a formulaic basis, including indices developed by using high
18 school GPA and SAT scores, SAT1's.
19 Q As used by the selective campuses at the University of
20 California, was there any kind of discriminatory impact
21 caused by the use of the GPA's?
22 A Ask that a different way. I'm not sure I got it.
23 Q What effect did the use of the GPA's have on the
24 eligibility -- or I'm sorry, the admissions --
25 A Admissions?
146
1 Q -- admissions for Latino and black students in
2 particular?
3 A Then, as today, access to courses first that are
4 college level and acceptable courses at UC are differently
5 distributed amongst high schools. We find Latino students
6 in particular and African American students, as well, are in
7 those high schools where there are less of those courses, so
8 their GPA with regard to those courses could, in fact, be
9 affected because of access to those courses, so both their
10 eligibility and their admissions could be affected.
11 Secondly, the GPA is allowed to float above a 4.0,
12 an A equaling 4.0, because honors courses and AP courses
13 are given up to 4.8 in grade level, so that a student taking
14 many, many AP courses or many honors courses could, in fact,
15 have an inflated -- what we're going to call a floated,
16 floating grade point average.
17 If you happen to be in a school in which there were
18 no AP courses, or had limited access to them, or where there
19 were limited numbers of honors courses, then you --
20 essentially, GPA could have a tremendous effect in a
21 decision that might be made with regard to your admissions.
22 Q Were the honors courses equally distributed between
23 schools which were white and schools which were Latino and
24 schools which were black?
25 A No. Our empirical work in the early '90's and then
147
1 into the mid '90's indicated that what we called the A to E
2 courses, the required courses, were not distributed equally,
3 honors courses were not distributed equally, nor were AP
4 courses. Honors and AP were significantly not available in
5 those places where we had highly segregated high schools,
6 particularly serving Latino students.
7 THE COURT: California has a similar system, I
8 suspect, as we do, where there are school districts that
9 have certain boundaries and they are independent school
10 districts and taxed independently and run their school
11 districts.
12 THE WITNESS: That's correct, yes.
13 THE COURT: Can I just ask one more question?
14 MR. WASHINGTON: Sure.
15 THE COURT: Are you aware of any state that has a
16 statewide school district where it's run by the state and
17 that the money is distributed equally to all schools and
18 teachers are under the state control and can be transferred
19 to schools where they are needed and that they have the same
20 curriculums, is there any state that does that?
21 THE WITNESS: I'm not aware of that. One of the
22 things I failed to mention is I was a school board member
23 once, and you'll remember many school board members are
24 locally elected and they are not in favor of state systems.
25 THE COURT: Oh, I know that.
148
1 THE WITNESS: No, I do not know. I do not know
2 the system.
3 THE COURT: So each one as it's here has their
4 funding and everything else --
5 THE WITNESS: And priorities and so forth.
6 THE COURT: -- and has their priorities, and a
7 school board that runs it in the manner they believe is --
8 THE WITNESS: That's correct.
9 THE COURT: Okay. What do you think of that
10 concept?
11 THE WITNESS: As a school, ex-school board member, I
12 think school --
13 THE COURT: No, as an educator.
14 THE WITNESS: As an educator, I think you probably
15 need a mix of state and local and federal assistance, so I
16 would argue -- remember, I also worked for the Feds -- so I
17 would think that what we need to do is look at it as all one
18 system rather than local, state or federal, and provide
19 resources as we best can across those different identifiers
20 or barriers or political units. Actually, political units.
21 THE COURT: But also not only resources, but also
22 curriculum, what you're saying to me?
23 THE WITNESS: Yes.
24 THE COURT: I'm also hearing what you're saying
25 to me is that in certain areas, that they don't have the
149
1 curriculum that they need in order to even become eligible?
2 THE WITNESS: That's correct. They don't have the
3 curriculum, right.
4 THE COURT: So if there was a state curriculum, and
5 funding, of course --
6 THE WITNESS: Yes.
7 THE COURT: -- tell me your position, what you think
8 about being a former school board member, where do you see
9 the local control?
10 THE WITNESS: Sure. I think it's the -- it's having
11 the diversity to implement a set of curriculum that you
12 think is best suited for the students that you serve, but
13 still reaching the standards, the high standards. So this
14 is why we have now state standards in most states, which are
15 informed by national discussions, about what science ought
16 to look like at third grade, but states will adopt those
17 standards. The local district, I think, their job is to
18 move students to those standards. How they do that, I
19 think, is a local decision.
20 THE COURT: So the ideal system, and I'm not --
21 perhaps it could be a state system that deals with funding,
22 fair funding throughout the whole thing, so everybody at
23 least has some equality of funding, curriculum, and then
24 leading to the standards and --
25 THE WITNESS: And I would say I would add one more
150
1 thing, because my own work and that of my colleagues would
2 suggest that you need to have people to implement those.
3 You need good teachers.
4 One of the greatest problems we have in these
5 segregated schools serving Latinos is many of the teachers
6 are not trained, so we're using what we call in California
7 emergency credentials, which means they have no training
8 in teaching, and so -- but they have responsibility for
9 instructing students. So you need the professional.
10 THE COURT: You need the professionals?
11 THE WITNESS: The personnel.
12 THE COURT: So if you had those on a state level and
13 then you had the local level where they have the input in
14 terms of that particular --
15 THE WITNESS: Specifics.
16 THE COURT: -- specifics, what do you think of the
17 concept of teachers maybe being state employees where they
18 can be transferred pretty much like district judges here in
19 the state? You know, we're all not necessarily just in the
20 Federal Court, but the State Court, they're all State
21 employees, and if they need somebody, they just transfer
22 them. You're sitting in, you know, Muskegon next week.
23 THE WITNESS: Right, right.
24 THE COURT: Same thing with teachers, teachers who
25 are perhaps, you know, under state control.
151
1 THE WITNESS: Sure.
2 THE COURT: And therefore, if one district needs
3 extra help on whatever the subject happens to be and they
4 don't have the resources, for lots of reasons, a part of it
5 could be geographics and, you know, and all those things,
6 that the State has the ability to transfer that person,
7 within reason, over there.
8 THE WITNESS: Yeah.
9 THE COURT: Are those kinds of things, you think,
10 workable?
11 THE WITNESS: I don't know if the state system --
12 just districts certainly have that prerogative now and
13 have trouble doing it. For instance, large districts like
14 Los Angeles, which is huge, 700,000 students, and a large
15 geographical region, has difficulty in transferring these
16 kinds of teachers, because mainly they are professionals and
17 so they will leave if they don't like their job assignment.
18 THE COURT: But if you have a state system, they
19 can't leave unless they leave the state, if they want to
20 continue with their profession.
21 THE WITNESS: Yes.
22 THE COURT: But the real point, I think, part of it
23 is the bidding process?
24 THE WITNESS: It's all that, yeah. It's who you get
25 into the profession, how they are trained. So there are
152
1 certainly alternative ways.
2 And you could make sure, if you don't have the
3 professionals, then get them the kinds of resources they
4 need to become the kind of professional that they need to
5 be, and that's really what most districts are doing now.
6 THE COURT: It's difficult for a single district to
7 do that.
8 THE WITNESS: It is, of course.
9 THE COURT: Especially a single district that
10 doesn't have a lot of resources.
11 THE WITNESS: That's right. No, I agree with you.
12 I agree with you.
13 THE COURT I'm sorry.
14 MR. WASHINGTON: No, that's fine.
15 BY MR. WASHINGTON:
16 Q Dr. Garcia, could you describe for us what the
17 California K through twelve educational system is now?
18 A Right now, you might want to call it a little bit
19 in crisis, and the reason it's in crisis is that so many
20 students are not achieving to the standards that we have
21 identified in California.
22 If you look at our financial investment in
23 California, we have -- in the 1950's to 1960's we were
24 ranked amongst the highest in the United States in
25 investments in education. Now I think we're probably in
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1 the lowest decile in terms of investments in education,
2 and that's expenditures per student.
3 So if you look at our educational system, we have
4 essentially not invested in it, and it has shown in the
5 number of students, and it has -- it has gone from, in about
6 twenty years, from about two and-a-half million to five
7 million, so it's doubled in that period of time.
8 We have not kept up with the kinds of resources,
9 and most importantly, it is a very -- a system that's in
10 equilibrium; that is, some schools are very, very good,
11 and some schools are very, very not good, and we have the
12 continuum.
13 Relevant to the situation that we're discussing here
14 is that many of the schools that fall in that lower decile
15 or quintile in terms of resources, achievement, et cetera,
16 are also highly segregated with Latino and African American
17 students, and are also underresourced in terms of
18 expenditures per student.
19 Q You have mentioned some of the things that it means to
20 be underresourced. Can you tell me more about what that
21 means?
22 A Sure. I think the most critical one is the one I
23 raised earlier, and that is, do you have the right personnel
24 that is, in fact, engaged in the instruction of students,
25 and until we change the way schools are organized, teachers
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1 are the most critical element in the education of a student,
2 particularly in the public sector, and particularly for
3 poor kids, and Latino kids, the population I have studied
4 extensively. The teacher makes a difference.
5 So when I say underresourced, in many cases I don't
6 necessarily mean the amount of dollars, I'm really talking
7 about the kind of individuals. In our schools in California
8 it is not unusual for a student, a third grader, for
9 instance, who is Latino, about 50 percent of those kids will
10 have a teacher who is not credentialed, has not been trained
11 as a teacher, and is in almost every term unqualified to be
12 in the classroom.
13 In addition to that, of course, is the opportunities
14 for curriculum in our schools. It's very likely that that
15 same third grade Latino student will not have access to the
16 kind of curriculum that they need, textbooks, the kinds of
17 science laboratories, kinds of experiences that are provided
18 in some of the better schools.
19 I think lastly, I would say it is the overall tenor
20 of the place where the school is that usually, and in very
21 impoverished locales, urban sectors or rural sectors,
22 for Latinos, tend to be economically depressed, high in
23 unemployment rates, high in incarceration rates, and all
24 these things, I think, would characterize the environment
25 of a Latino student in California.
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1 Q And if you know, what is the graduation rate for
2 Latino students in California, high school graduation rate?
3 A We have now -- depending on how you measure it, but
4 if you look at it longitudinally over a period of time that
5 the student is actually in school, we're probably losing
6 about 40 percent of students who begin in the K through
7 twelve sector, but never finish, so we're completing about
8 60 percent of Latino students.
9 Q Now, Dr. Garcia, could you describe for a moment the
10 situation for black students in the State of California and
11 K through twelve?
12 A Very similar picture. Highly segregated schools,
13 similar kinds of neighborhoods. In some cases, where
14 the neighborhoods are transitioning from highly black
15 concentrated populations to Latino populations coming in,
16 Oakland is a good example, right close to Berkley, but
17 in any case, you have similar kind of community and
18 socioeconomic circumstances, along with the highly
19 segregated situation.
20 Q Do you -- would it be fair to characterize the
21 California K through twelve system, in general, as separate
22 and unequal systems?
23 A I think many people have characterized it that way.
24 I would at least be willing to do so, yes.
25 THE COURT: Is this a good segue to lunch?
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1 MR. WASHINGTON: That would be fine, yes.
2 THE COURT: We will stand in recess until 2:15.
3 (Luncheon recess taken at 1:00 p.m.)
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