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.
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1 - Afternoon Session
2 (At or about 2:30 p.m.)
3 -- --- --
4 THE COURT: Just a couple of housekeeping matters.
5 Monday, whoever is coordinating the students coming down,
6 since we have -- we won't have as quite as many seats in the
7 courtroom because we have arrangements with a lot of schools
8 and tomorrow -- Monday -- we're just getting our schedule
9 together, and we have a high school that's coming down.
10 Generally they bring a class, a government class. I'm not
11 sure how many students. Maybe thirty, forty students. So,
12 they've been scheduled since the beginning of the year so
13 we're going to have -- whatever they need reserved for them on
14 Monday. So, I don't know who coordinates --
15 MS. DRIVER: Judge Friedman, will they be here all
16 day on Monday; do you know?
17 THE COURT: I'm trying to think of what high school.
18 Some stay the whole day, and they bring their lunch and eat it
19 upstairs in the jury room. Others -- I think this high school
20 -- I think just stays half day.
21 MS. DRIVER: Okay.
22 THE COURT: So they will only be here a half of day.
23 I'm almost sure -- I'm going to have my clerk call later, but
24 I'm almost sure this is the high school that only stays a half
25 day.
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1 MS. DRIVER: Right. Okay.
2 THE COURT: And then we'll talk about -- tomorrow,
3 we'll talk about Tuesday. Tuesday is the day I should pick
4 that jury. And also is -- Judge Keith has a Soul Food
5 Luncheon in honor of Black History Month. And also has an
6 awards banquet that he does on this floor. It's a great time.
7 But I have to talk to him. I haven't had a chance to get over
8 there and talk to him because, again, it will interfere with
9 students because they pretty much use the whole floor. We can
10 still continue our trial, but I want to talk to him because
11 maybe we'll do it -- let me just talk to him because -- it may
12 be disruptive because, as I say, he gives out awards. There
13 are people all over the floor, and so forth. Maybe we can get
14 him to invite all the attorneys in this case. We can all go
15 to the same thing and be there together. So, I'll talk to him
16 in just a bit, when we take a break, or on my way -- maybe
17 I'll call him tonight. I'll let you know about that tomorrow.
18 Okay, with that said, you may continue.
19 MR. WASHINGTON: Judge, just one other housekeeping
20 matter. We have Professor Foner here as a witness and he does
21 have to go back to New York today.
22 THE COURT: Feel free to put him on and we can -- if
23 the Dean doesn't mind --
24 MR. WASHINGTON: Well, we would like to continue
25 with the Dean. I'm just wondering if we can go a little past
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1 five if that were necessary.
2 THE COURT: A little bit. I can't -- again, I
3 didn't make plans tonight. I've made plans tonight. I didn't
4 make plans to work late tonight so. We can go a little bit,
5 but not too much tonight. Sorry, but I have made plans.
6 MR. WASHINGTON: Okay. Can I have just one second?
7 THE COURT: Generally, I would say, you know, I'm
8 always open to go into the evenings. As I've told you, my
9 wife works late. But if I don't know a little bit in advance
10 I -- I made some plans.
11 MR. WASHINGTON: Okay. Why don't I proceed with the
12 exam of Dr. Garcia, and if there's a place like we're running
13 into a time problem, we might have to suspend --
14 THE COURT: As I say, generally I would work as late
15 as I have to, but it's another one of those crazy nights I'd
16 figured we wouldn't work late, and --
17 MR. WASHINGTON: I understand. How much is a little
18 bit, by the way?
19 THE COURT: Not too much, really. Usually, I'm
20 begging to work late because my wife doesn't -- as I've told
21 you all at the beginning of the trial, she doesn't get home
22 until after seven. She works her last appointment at six, and
23 she gets home sometime after seven. So I love working late
24 because I have nothing to do. But tonight, I've made plans.
25 MR. WASHINGTON: Okay.
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1 DIRECT EXAMINATION (CONTINUING):
2 BY MR. WASHINGTON:
3 Q Dean Garcia, one other question on the characteristics of
4 the Latino K through 12 population in California, can you say
5 something about the language status and the recently of arrival
6 of that group of students?
7 A Much like the nation of California has essentially seen a
8 large growth in immigrant students in its schools and immigrant
9 families in its communities, about sixty percent now of the
10 Latino population in California is first generation immigrant.
11 That's defined by us as individuals who themselves were born
12 outside of the country or whose parents were born outside the
13 country. So that is how we define first-generation immigrant
14 individual.
15 In addition to that, most of those students, Latino
16 students, speak a language in their home that is Spanish. And
17 most the recent data we have from the K-12 sector indicates
18 that's about twenty-five percent of the student, total student
19 population of California. Most Latinos it's close to about
20 fifty to sixty percent of Latino students in the K-12 sector.
21 Q So twenty-five percent of the total students in
22 California public schools speak a language other than English
23 in their homes?
24 A Approximately 1.5 million students in the K-12 system.
25 Q Let me return then to Berkeley in the pre 209 days or
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1 actually UC system. You had mentioned that there was the use
2 of grade point averages as one of the ways of selecting among
3 that group of people who were eligible for admission, who it
4 was who was going to be able to go to UC. What was the other
5 criteria on the normal admissions system?
6 A Typically the use of the SAT ones and SAT twos and threes
7 required all three examination types. And then, of course, the
8 full transcripts and essays were considered in the admissions
9 process.
10 Q Let me go to the SAT test. You indicated earlier that
11 you had done studying of that test.
12 A Yes, we were -- as chair of the system-wide regents
13 appointed Latino Eligibility Task Force in California which
14 began its work in about 1992, we looked at a set of factors
15 that were diminishing the participation of Latino students in
16 the University of California. One of our work groups worked
17 very specifically ata the use of standardized testing
18 nationally and more specifically the use of the SAT test in
19 California typically as it was used in the admissions process
20 as well as in the eligibility identification.
21 Q And what kind of conclusions did you draw from that
22 investigation?
23 A In 1997, we recommended as one of the final
24 recommendations of that task force that the university
25 reconsider the use of the SAT and look for alternative
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1 assessments that might, in fact, still provide some indication
2 of academic proficiency of students and, therefore, could be
3 used to identify whether those students could be successful in
4 the University of California.
5 We based that recommendation very directly on a
6 study of retention and graduation at the University of
7 California, specifically, although, we did use national data
8 as well. We found very directly that the entering freshmen
9 GPA, SAT indices was not a predictor of graduation rates for
10 minority students, particularly Latino students, admitted pre
11 209. So in a nutshell when you look at retention and
12 graduation rates across the University of California, and even
13 at the most selected institutions, the ones we've been talking
14 about, Berkeley, UCLA, and San Diego, we found no difference
15 in completion rates -- retention rates or graduation rates for
16 African-Americans, Latinos and White and Asian students based
17 on their SAT and GPA cumulative index.
18 Q So there was not a correlation between said index and
19 their graduation-retention rates and so forth in the whole UC
20 system?
21 A In the whole UC system, nor as the most selective
22 institutions.
23 What this essentially told us is that the SAT may
24 predict some things, but it didn't do what the University of
25 California intended it to do and, that is, to identify not the
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1 most rewarding students, but those that would benefit from the
2 curriculum that was offered at the University of California.
3 Challenging curriculum, challenging a set of standards for
4 graduation. So that the logic of using the SAT as a selected
5 factor was that it would allow us to select from those who
6 could succeed in versus those who would not succeed in a
7 University of California intellectual climate. And we found
8 that was not correct.
9 Q What discriminatory impact, if any, did it have on either
10 Latino or Black applicants to the University of California?
11 A It had two general effects, and we documented both of
12 these. One is that it precluded admissions at the most
13 competitive or selective institutions, at Berkeley, UCLA, and
14 San Diego at which time during -- even until most recently
15 again indices of SAT one scores and GPA are used to make fifty
16 percent and up to seventy-five percent of the admissions
17 decisions. So that if your SAT score was low, if you came from
18 a school that didn't have the honors courses or whatever, it
19 would just exacerbate the discriminatory decision-making
20 process at these select universities.
21 The other effect found is that many of the students
22 wouldn't apply to any of the universities that they have to
23 take the SAT scores. Keep in mind that many Latino students
24 have begun school speaking a language other than English. They
25 knew as we did that English is a very important aspect of the
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1 SAT or any standardized achievement measure developed in the
2 United States. That is, these tests not only measure what
3 they're intended to measure, content and other material, they
4 measure how you understand the test.
5 Latino students in general are scoring at lower --
6 combining lower scores on -- particularly the verbal aspect of
7 the SAT. And many of the students who take the SAT also take
8 prep courses for the SAT. It's sort of common. It's common
9 all in California. It's common across the country. Parents
10 are very knowledgeable about this, make sure their kids take
11 the prep SAT --
12 Q Those run --
13 A Those run anywhere between two hundred and fifty dollars
14 up to a thousand dollars depending on the detail of the course.
15 Q Let me stop you for one second --
16 A Sure.
17 Q -- there on prep courses. We've heard I suppose
18 testimony and on the other hand questions which suggest that
19 test prep courses did not work. You're the Dean of the School
20 of Education at one of the finest universities in the United
21 States, do they work?
22 A They work. I've made sure my daughters took the SAT prep
23 courses, and their scores went up about fifteen percent.
24 Q And -- let me go back then to question of the test
25 themselves. What -- leave aside the prep courses and so forth,
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1 what about the tests in particular was causing a discriminatory
2 impact on Latino students and on Black students?
3 A Well, we felt -- and I'll speak to what we did and then
4 what our other colleagues have done. The nature of the test
5 itself, the items is problematic, particularly the analogy
6 section of the SAT one. If you take the SAT one, there's a lot
7 of analogies. Well, that means you have to know a lot of
8 vocabulary. So that means the better you are at what we call
9 academic English, the more likely they're doing well on any
10 kind of verbal test that requires you to know English very
11 well.
12 By "academic English" I mean the kind of English
13 that's used in schools, not the kind we use outside on the
14 street, or use to negotiate every day living, but the kinds of
15 vocabulary, the ways you form grammar, the discourse of the
16 academic domain. Science has its own. Even social science
17 has its own. And the law definitely has its own set of
18 vocabulary, the way to talk to each other.
19 The more you're in school, particularly exposed to
20 academic English, the more likely you'll also do well on
21 verbal portions of the test. And even the math, it's highly
22 verbal in the SAT. So in any case what we essentially
23 speculated and we now know empirically from a number of
24 studies that individuals whose English is second language are
25 not going to do as well on those tests primarily because of
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1 the English academic language load of those tests.
2 An English-speaking student exposed probably in the
3 middle class, upper-middle class honed to academic English, to
4 defending your position, to arguing, to developing vocabulary,
5 to visiting museums, you name it, those individuals are more
6 likely to do better on a test that's heavily loaded in
7 academic English.
8 So Latino students, as I indicated previously, many
9 of them come to school as speakers of Spanish, and their
10 parents are very likely not to have had the experience in the
11 US schools. And if they had the experience US they haven't
12 graduated and on to college to pick up that academic English.
13 So that we felt and the data seemed to confirm this that it is
14 at least partially a language load, an English language load
15 on those tests that discriminates.
16 The other, of course, is the broader issue of
17 schooling opportunities. The access of --
18 THE COURT: Let me stop you for one second. The
19 academic English, is there a solution to that?
20 THE WITNESS: It's a hard solution because if you
21 have the right kind of curriculum -- go back again to --
22 THE COURT: I'm talking about testing. Is there
23 testing -- I know to go back in certain things, educationally
24 we could probably do it, but is there a testing way of doing
25 it? I mean, as you've studied this -- I would suspect that
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1 you used academic English, but if you didn't use academic
2 English then everybody would be on the same footing --
3 THE WITNESS: California has been one thing and the
4 -- at the national level, during my time in Washington, we did
5 another with NAEP, National Assessment of Educational
6 Progress. We tried to limit the language load of an
7 assessment.
8 If you're going to assess mathematics, then be
9 careful that the items that you choose are not culturally or
10 linguistically biased so you can run, you know, actually run
11 empirical samples. You can see, well, let's try it with these
12 kids. Let's find out. We can change the item. So
13 psychometrically can you solve that problem? Yes.
14 The one problem with the SAT in solving it at that
15 level is that you do want to get a predictor of someone who
16 can do well in a high-loaded academic English environment,
17 that is, the university --
18 THE COURT: If it --
19 THE WITNESS: If it predicts, if it predicts.
20 THE COURT: There are those that say it doesn't
21 predict.
22 THE WITNESS: That's right. And, so, the thing you
23 can do is try to look at that as only one small indicator, and
24 use other kind of measures. You can take a look at the essay,
25 how did the student write. You can get -- you look at other
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1 kinds of reports that the students produces. That gives you
2 evidence --
3 THE COURT: But even testing, since California has
4 this system where everyone has some entitlement to go to
5 college, they could have their own system of even testing if
6 they wanted to without using the national test because --
7 THE WITNESS: Sure, and we're considering that.
8 That's one of the things that we're considering is having --
9 in fact, we have a development the Golden Gate Examination
10 which is our own test based on our own standards, and we could
11 very well likely use it.
12 THE COURT: And then you could even eliminate the
13 GPA because at that point the test could be theoretically at
14 least incorporate all of the --
15 THE WITNESS: We're actually headed the other way,
16 is that we're -- a test is one snapshot of the ability for
17 achievement. What we would like a more comprehensive picture,
18 a video, if you would like, of what students have done and can
19 actually do. So we're looking at a much more comprehensive
20 evaluation much like the select private institutions, too.
21 They look at a student, case-by-case. They look at
22 standardized test scores. They look at a number of things.
23 THE COURT: As a tool --
24 THE WITNESS: But they're one of many indicators.
25 So, we're trying to move away from this formula, test score,
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1 GPA, or just GPA alone, looking at a multiple set of
2 indicators.
3 THE COURT: From what I've heard today, California
4 is the ideal place to do it because of the entitlement.
5 THE WITNESS: I agree, a hundred percent.
6 THE COURT: I'm sorry. Go ahead.
7 MR. WASHINGTON: No problem.
8 BY MR. WASHINGTON:
9 Q Dr. Garcia, just before we leave the SAT, you mentioned
10 that proficiency in academic English as being very important
11 for success on that test. What relevance, if any, does that
12 have to the Black population in either California or
13 nationally?
14 A Well, we do know that about sixty percent of
15 African-Americans speak a language identified often as Black
16 English. And we know from a linguistic analysis, that's my
17 part as a psycholinguist, that it has all the appropriate
18 indicators that it really is a language, but it has -- people
19 do talk it. They make sense out of it. It has its rules.
20 It's governed by a set of rules and understandings. However,
21 those students then go into a English environment in schools in
22 which the goal is to produce standard English. And that's true
23 for all students. So it's very likely there in a high and a
24 verbal English, academic English loaded exam that we have that
25 same problem.
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1 We haven't done the kind of research on that
2 question that we've done with Latino students because clearly
3 Spanish is not English, and access to Spanish in lots of
4 different interactions, in the home, in the community, is
5 substantive before the students enter the schooling system.
6 Q What relevance, if any, does it have to a student's score
7 on an SAT if his or her parents were trained in academic
8 English?
9 A It's a tremendous advantage, and it's the kind of
10 advantage that one doesn't really realize unless one does
11 linguist or psycholinguist observations of what's going on
12 middle class, upper middle class educated homes where there are
13 discussions, there's developed vocabulary. There are a whole
14 set of interactions that build this academic English.
15 Q And would it be fair to say then that the SAT test is a
16 system that disadvantages both Latino and Black students and
17 advantages White students?
18 A At the present time that's the case, yes.
19 Q The LSAT test, what is its relation to what you call
20 academic English?
21 A The LSAT and I'm not all that familiar with it, I've
22 certainly looked at the exam is, again, a highly loaded verbal
23 test. There are a set of requirements one needs to have in
24 terms of vocabulary in ways in which a schooling English is
25 used to assess academic proficiency.
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1 Q Okay. Now, Dr. Garcia, are you familiar with something
2 called "stereotype threat"?
3 THE COURT: Let me stop you for one more second.
4 This is with your school board hat on. I meant to ask you
5 before and I forgot. The prep ACTs, and LSATs -- ACTS we're
6 really talking about now, does any school district provide
7 prep courses for their students?
8 THE WITNESS: California is now providing prep
9 courses for their students.
10 THE COURT: Those who can't afford it can still get
11 a course that's quality --
12 THE WITNESS: It depends -- they don't have it now
13 for everyone, but there are now school districts who are
14 providing with state assistance. This has just passed last
15 year. So this is the first year in which districts do have an
16 allocation from the state to provide PSAT, and SAT prep
17 courses for students.
18 THE COURT: So that it's in the process of being
19 implemented?
20 THE WITNESS: It's in the process of being
21 implemented, right.
22 THE COURT: Somewhere down the line, everybody will
23 have an opportunity if they want to.
24 THE WITNESS: It depends on the state budget, as
25 everything else --
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1 THE COURT: Assuming there's money. But I mean if
2 that's a priority of the state, it can happen.
3 THE WITNESS: And let me tell you why is that again
4 we have seen the drop, dramatic drop in under-represented
5 minority students at the UC campuses. And, of course, one way
6 to do outreach and to help prepare those students is the PSAT
7 and SAT tests.
8 We have not seen any -- we don't know what the
9 results of that will be.
10 THE COURT: But you're a firm believer that it's
11 going to help somewhat.
12 THE WITNESS: The problem with the ten to fifteen
13 percent increase is that you've got to have the base in order
14 to get that. I mean, you get ten to fifteen percent increase
15 and learning the grammar of the test, learning how to take the
16 test, it doesn't -- those courses don't teach you how to do
17 algebra and calculus.
18 THE COURT: Okay. Thanks.
19 BY MR. WASHINGTON:
20 Q Dr. Garcia, I want to come back the post affirmative
21 action era and what works and what doesn't. But first, if you
22 would, could you describe for us before the passage of the SP
23 201 and Proposition 209, what was the affirmative action
24 program at the University of California?
25 A The affirmative action program, first of all, did not
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1 accept students who were not eligible. So that there is a
2 mechanism in the University of California that allows accepting
3 students that are not eligible. Remember earlier I described
4 eligibility. And that's usually left for athletes and tuba
5 players or special individuals who did not meet that
6 requirement.
7 The affirmative action process in the University of
8 California first required admitting students that were
9 eligible --
10 Q Before you leave that -- admitting people who are not
11 eligible, how big a category was that?
12 A Five percent. Campuses are allowed to admit five percent
13 of their student -- freshmen entering class that do not meet
14 the eligibility requirements.
15 Q Okay. Now, the affirmative action program, if you could
16 describe that for us.
17 A The affirmative action program essentially allowed
18 campuses to use race, ethnicity, gender as one of several
19 variables in determining admissions. So there was never any of
20 decision made on the basis of a student not being eligible and
21 being of a certain race or a certain gender or a certain
22 ethnicity. The idea was to provide a more comprehensive
23 overview of a student including race and gender, and ethnicity
24 of the student, along with all the other indicators.
25 Q Now you painted a particularly distressing picture of the
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1 schools of California, the secondary schools, were there Black
2 and Latino students in those schools who were eligible to go to
3 the University of California, Berkeley, UCLA, and so forth
4 under the affirmative action plan?
5 A Yes, there were. And we were able during the pre 209
6 period to accept students who were eligible, but came from some
7 of those same schools. And were able to show over time since
8 the -- the mid 1970s increases, significant increases using
9 affirmative action.
10 Q Can you give me some description of those kinds of
11 students you would find in the schools?
12 A Sure. Very likely, they're the kind of student that may
13 have a 3.5 GPA at an inner-city high school, a school that I'm
14 most familiar with is Mission High School. It's in the mission
15 district of San Francisco. Those students may be doing very
16 well under high challenging circumstances but is, again, I know
17 their science program, they have one science teacher in the
18 whole school that's a credential science teacher. The rest are
19 emergency credential science teachers. Their labs are not the
20 best. But even so, students were doing very well.
21 The presence of honor courses or AP courses, almost
22 minimal in a high school like that. But those students, in
23 fact, in that circumstance essentially were doing fairly well.
24 They were getting 3.5 GPAs, and quite frankly their SATs might
25 be not so high. Much like mine. Many of them were
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1 immigrants, first generation immigrants. And so we were able
2 to admit students into a place like Berkeley considering those
3 aspects of their characteristics along with where they came
4 from, their school and their GPA.
5 Q When you looked at those students, did you look at their
6 race or their national background?
7 A We did consider that in the admissions process, pre 209.
8 Q Why did you do that?
9 A We felt it was an important way to meet the goals of the
10 University of California, that is, to have a diverse student
11 body, to meet and serve children of the state of California. We
12 felt also that having a diverse class in the University of
13 California, an integrated class, was important. So that's why
14 we used those measures.
15 Q Okay. What was there about the question of race and
16 educational opportunity that made you look at the question of
17 race?
18 A First of all, we understood very much that the
19 opportunity was distributed differentially across the state
20 based on race and ethnicity, particularly with
21 African-Americans, Latinos and American Indian students. And
22 we were attempting to be sure to take the very best students
23 that were doing well under the conditions which they were being
24 educated.
25 We also had the data to indicate that those students
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1 once given the opportunity in the University of California and
2 we had the data at Berkeley that those students admitted with
3 lower GPAs and lower SAT scores could still thrive, could
4 still succeed at a place like Berkeley, and they did. So
5 weren't -- we understood using race and ethnicity we were able
6 to select a group of students that made our campus diversed,
7 met the goals of the university, and did not place the campus
8 in jeopardy of having lots of bad students who weren't
9 successful, and quite directly hurting the students themselves
10 because they would come and fail. We understood that that
11 could be done.
12 Q Let me ask you one -- you mentioned data, in terms of the
13 students admitted at the University of California at Berkeley
14 under the affirmative action plan, in the years before it was
15 abandoned, how did they do in terms of graduation?
16 A They differed a little on -- different from any other
17 students. The one thing that they -- that we did learn is that
18 they might take longer. Berkeley's average time to graduation
19 now is between four and a half to five years. It's not four
20 years. And Latino students and African American students
21 finish at about the same rate at five to five and a half years.
22 So it took them a little longer, but they finished, graduated,
23 and were in school.
24 Q Was that because people were dropping out for one reason
25 or another and then coming back, or taking lesser course load
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1 or --
2 A Our Latino eligibility study did a survey and focus
3 groups with some of those students, and we found the economic
4 conditions of their families were more than likely the primary
5 reason for them moving in and out of the system.
6 What we found was that many of these students would
7 go back home for a semester to help the family, and save
8 enough money to come back into the UC. But, again, they
9 finished. We found the economic factor to be the main driver
10 for taking longer.
11 Q You say the difference in graduations was a little, do
12 you happen to remember what that was?
13 A Yeah, I think the overall graduation in five and a half
14 years to six years is right around eighty-six percent. For
15 Latinos it was seventy-nine percent.
16 Q Do you happen to remember the figure for
17 African-Americans?
18 A African-Americans was a probably a little lower. It's
19 about seventy-six - seventy-eight percent. It's in my report.
20 Q Seventy-six to seventy-eight percent, around eighty
21 percent graduation, those students who graduated and were
22 admitted under your affirmative action plan, would they have
23 had a chance of being admitted to the University of California
24 in a so-called race neutral system?
25 A Well, we know that about fifty percent of them would not
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1 given the empirical data of what's happened after 209.
2 We've done some focus groups with students who are
3 at the University of California now or were there. They may
4 have graduated recently that were admitted pre 209. And the
5 one thing they said, they told us under the present
6 circumstances I would not be admitted, and my brothers and my
7 sisters will not be admitted to Berkeley on the basis of the
8 present system as it's operating.
9 Q Sir, when was 209 passed and become effective in the
10 state of California?
11 A It was passed in 1995, and became effective a year later,
12 1996-'97.
13 Q Do you have in front of you what's been marked for
14 identification as Exhibit 214?
15 A Yes, I do.
16 Q This is academic print here I think, or maybe it's legal
17 print, I don't know.
18 If we can just go while affirmative action was still
19 being used at the University of California at Berkeley in
20 2005, can you just read for us the number of African-American,
21 American Indian, and Chicano students respectively who were
22 admitted in 1995?
23 A At Berkeley?
24 Q Yes.
25 A Yeah, we had a over a thousand Latinos; one hundred and
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1 twenty-nine African-Americans admitted in the freshman class of
2 1999 --
3 Q Hang on. You're reading applications.
4 A Oh, I'm sorry. I'm looking at African-Americans at five
5 hundred and sixty-six. Those are admissions. For American
6 Indians, a hundred and eighteen. And Chicano, one thousand one
7 hundred and twenty-eight.
8 Q Let me just stay on that last figure. As I heard your
9 testimony there are a hundred thousand graduates, Latino
10 graduates in the state of California every year and even with
11 affirmative action you were admitting about eleven hundred
12 Latino students.
13 A Well, just to be correct, in 1995, there were about
14 eighty thousand.
15 Q About eighty thousand, okay. It's gone up twenty
16 thousand in that five-year period?
17 A Twenty thousand now.
18 Q Okay. And further over on the enrollment figures, as I
19 look at in 1995, at the University of California at Berkeley
20 there were two hundred and two Black students; fifty-eight
21 Latino students; and about four hundred Chicano students who
22 actually were able to come.
23 A Who actually showed up.
24 Q When 209 went into effect, what effect, if any, did that
25 have on the admission of under-represented minorities in the
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1 University of California?
2 A In the University California there were two effects that
3 we can -- sort of major effects, there may have been many
4 others, but in terms of numerical effects on the entering
5 freshman class, at the three selected universities we saw
6 tremendous decreases in the number of applications, enrollments
7 and eventually admissions, people showed up. So we lost since
8 the implementation of 209 at places at Berkeley, UCLA and San
9 Diego, anywhere between thirty to fifty percent of Chicano and
10 Latino and African-American. So it is a tremendous decrease.
11 What's frustrating is that we were making gains up
12 until that time. So we were increasing enrollments of these
13 individuals by about one to two percent on each of these
14 campuses per year. So projecting that out over the five years
15 we've had a minus -- even a further negative loss because we
16 haven't been gaining, we've been losing. So we have been --
17 we were making very small but important gains and now have
18 tremendous losses.
19 Q Let me direct your attention to Exhibit 213. Let me just
20 ask you to go down the list here. University of California at
21 Los Angeles after the passage of 209 what percent dropped of
22 under-represented minority students was there -- let's take
23 UCLA and Berkeley?
24 A Again, forty-two to forty-five percent drop on those two
25 campuses.3.
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1 Q And as I understand it that was at the same time that the
2 number of Latino high school graduates had gone up by
3 twenty-five percent.
4 A Twenty-five percent. These are students who are actually
5 succeeding in high school. These are -- we're still, as you
6 might recall, indicated we have a forty percent drop out rate.
7 We had an increase in high school graduates. These kids are
8 the ones who are staying in school and graduating at greater
9 numbers, and we're going the other way. That's why it's so
10 frustrating in California to have the demographic realities of
11 increases in population of even more successful students, while
12 at the same time, decreases in UC participation.
13 Q Now, just looking down I see at San Diego, Urbine, and
14 Davis there's about eleven to fourteen percent drop. Santa
15 Barbara, about ten percent drop. It looks like there's an
16 increase in under-represented minority students at Santa Cruise
17 and Riverside, including Riverside by about eighty-seven
18 percent.
19 A Right.
20 Q What can you tell us about that?
21 A These two campuses are the least selective campuses.
22 Selectivity is defined for us as the racial of students who
23 applied as opposed to those students who are actually admitted
24 so that at Santa Cruise and Riverside, until recently it may
25 change this year, we're not sending away anyone who actually
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1 applied to those campuses.
2 In addition, those students who might have listed
3 Los Angeles or Berkeley as their first choice and Santa Cruise
4 as the third choice would end up in Santa Cruise. So that what
5 we have here is a redistribution of students in the UC system.
6 And, of course, this will soon come to an end. We're going to
7 run out -- Santa Barbara as you can see is ten percent last
8 year, has become very selective now. Now, they're also
9 turning away very large numbers of students who are eligible.
10 And so the only place those students can go are Santa Cruise
11 and Riverside.
12 In the next few years, we anticipate that Santa
13 Cruise and Riverside will be turning away students who are
14 eligible and, therefore, they will be turning away more
15 under-represented minorities who are eligible. So the master
16 plan guarantee will essentially be gone for those students.
17 Q When you say "we anticipate that Santa Cruise and
18 Riverside will be turning away students" who is the "we" on
19 that?
20 A Santa Cruise and Riverside in a recent conference we had
21 in December in -- put together by the Office of the President
22 we were given projections that these institutions if they in
23 this way will soon also become selective. To this point they
24 have not. They've accepted all students who are eligible.
25 Q So you would a population growth in California and more
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1 people applying to the Santa Cruise and Riverside without
2 affirmative action.
3 A Right.
4 Q What does that mean?
5 A That means less students that less students throughout
6 the system and less students there. It can't continue to do
7 this. It can't continue to redistribute, redistribute those
8 students. It won't happen for very long.
9 Q Just looking at Exhibit 213, would it be fair to say that
10 the effect of 209 so far has been to move under-represented
11 minority students out of those two world renowned universities
12 and move them down really into San Cruise and Riverside?
13 A Yes, you also see we've got a decrease in the whole
14 system. So at a time when the system was actually increasing
15 we've actually stayed -- we've actually fallen behind. Many of
16 those students in at least interviews at Berkeley of students
17 who don't come now, who are admitted to Berkeley, are
18 essentially going to the privates, or going somewhere else but
19 not to the UC.
20 Also our application rates have been very low so
21 we're also losing what I would call the hope of the
22 opportunity to attend, why even apply?
23 Q And as I understand it this is a snapshot over the first
24 five years but over the next five or ten years you would
25 anticipate even the Santa Cruises and the Riversides we would
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1 be seeing people being moved out?
2 A They will need to become selective, and they will -- if
3 using the same procedures we use now, GPA and SAT scores, where
4 these students do not do well, they will -- even though they're
5 eligible, their eligible, they meet the requirements, then they
6 also will be turned away.
7 Q Doctor Garcia, I want to ask you a few more questions and
8 then we may have to talk about order, your Honor, of witnesses,
9 but what effect, if any, has there been in the state college
10 system. You mentioned that as underneath the UC system.
11 A Right. In the state college system, we believe at least
12 many of the students are also removing themselves from the UC
13 and moving to CSUs, at least under-represented students. Now,
14 it's important to note in the last three years that three CSUs
15 have also become highly selective, they are turning students
16 away as well. So San Diego State and two others have -- began
17 to turn away students where as before any student who met the
18 eligibility requirement would automatically be admitted.
19 They're moving to a more regional pattern of admitting students
20 to try to get away from the -- essentially the selectivity.
21 Q Okay. Doctor Garcia, I want to direct your attention to
22 -- back to Exhibit 214. Again, let's stick with Berkeley. I
23 just want to put some numbers on this. I'd like to see right
24 now -- at least at the time this was printed you did not have
25 the enrollment data for 2000?
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1 A Right.
2 Q So we're really looking at the first four years here.
3 African-American students there were two hundred and two at
4 Berkeley in 1995, a hundred and twenty-two now?
5 A Correct.
6 Q And skip -- American Indians students, there were
7 fifty-six and now as I understand it the whole University of
8 California Berkeley there are twenty-one American Indian
9 students?
10 A Twenty-one students in the freshman entering class.
11 Q Freshman class.
12 Chicano students it looks -- there were four hundred
13 and one, and it's dropped to two hundred and nineteen?
14 A That's correct.
15 Q Am I to understand then that at the University of
16 California at Berkeley with a hundred thousand Latino students
17 graduating from high school in the year 1999, there were
18 exactly two hundred and nineteen who made it to the University
19 of California Berkeley?
20 A That's correct.
21 Q Just one other question and -- a couple of questions and
22 then we should take -- talk about order, Judge.
23 Dean Garcia, I assume you are extremely --
24 personally, are extremely disturbed about this fall in
25 numbers.
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1 A Probably the best way to put it is frustrated. We have
2 this demographic reality. There is a substantive commitment on
3 the part of the University of California, and I believe the
4 citizens of California to have a diversed student body in the
5 University of California. I think the Board of Regents did
6 pass SP1 but they also passed SP2 which was that the University
7 of California will, in fact, be diversed. So what we have is a
8 situation which we have tried as best we can to move the
9 university in a partnership mode to help assist the K-12
10 sector, but recognizing the tremendous challenges that students
11 have in the K-12 sector, and in moving that sector in ways that
12 will enhance achievement of those students and therefore, their
13 competitiveness in the present process. We are highly
14 frustrated. We do not see light at the end of the tunnel. We
15 continue to perceive that there will be more decreases, not
16 only at Berkeley but at -- across the system even though we are
17 expanding our outreach activities, our partnership activities,
18 everything we can and acknowledging that it will be quite some
19 time before we have the right prepared teachers, the right
20 curriculum, the right resources, the kinds of resources that
21 are necessary to move students to a competitive level under the
22 present system.
23 Q Would it be fair to say that despite everything you've
24 done and other people have done to reverse this trend, without
25 being able to consider race in admissions and without being
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1 able to use affirmative action in the way we've talked about
2 it, this fall in numbers has occurred and is continuing to
3 occur in the state of California?
4 A I see no way in -- realistically that we can turn this
5 around and it's particularly true at the most selective
6 universities but will soon be the case at the other
7 universities.
8 Q Doctor Gracia, it's been said that the University of
9 California is being resegregated; is that true?
10 A Yes, it is.
11 Q In what way would you say it's becoming resegregated?
12 A Clearly you've seen the increases in the classes, the
13 numbers of under-represented students at the less selective
14 UCs. What we are fearful of is that we will essentially have
15 three to four university, because Urbine has now becoming much
16 like San Diego, so we will have three or four universities that
17 will be primarily White and Asian, and four universities that
18 will be primarily Black and Brown.
19 Q Do you think there's a double standard in the University
20 of California in terms of its admissions system at this point?
21 A I think it's a situation in which we are not making the
22 right decisions with regard to the information we have about
23 students that we know will allow them to be successful at the
24 most selective as well as unselective campuses.
25 Q At the current time persons are being admitted across the
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1 state of California which I think is larger than all but ten
2 counties in the world on the basis of the criteria that favor
3 people who go to white schools -- well, who have parents who
4 speak academic English?
5 A That's correct.
6 Q A system that, in effect, is favoring whites and Asians
7 who getting those students who apply?
8 A Right.
9 Q Would you call that a race neutral system?
10 A It's anything but that.
11 MR. WASHINGTON: Your Honor, I think this is a good
12 place to break.
13 THE COURT: Let me ask a question. If you were to
14 take all of those that are eligible and I don't know the
15 answer, but in order to get at least -- to have a better
16 chance of diversity than you have at the present time and use
17 a random lottery, what do you think would happen?
18 THE WITNESS: We proposed this at one time to the
19 regents. It had no support. I would say that's one
20 alternative, however, and I think I would want to explore how
21 those alternatives are working or aren't working.
22 THE COURT: I just wanted to ask that question
23 before I forgot it.
24 MR. WASHINGTON: Your Honor, what I would like to do
25 now is suspend Dr. Garcia's testimony and call Professor
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1 Foner.
2 THE COURT: If that's fine with everybody.
3 MR. KOLBO: That's fine with us.
4 MR. WASHINGTON: Your Honor, may we take a
5 five-minute break?
6 THE COURT: A true five-minute break.
7 MR. WASHINGTON: Thanks.
8 (Court in recessed, 3:15 p.m.)
9 (Court reconvened, 3:20 p.m.)
10 THE COURT: Okay. You may proceed.
11 MS. MASSIE: We call Professor Eric Foner.
12 THE COURT: Please step up to be sworn.
13 E R I C F O N E R ,
14 being first duly sworn by the Court to tell the truth, was
examined
15 and testified upon his oath as follows:
16 DIRECT EXAMINATION
17 BY MS. MASSIE:
18 Q Please state your name and spell your name for the
19 record.
20 A Eric Foner, E-r-i-c F-o-n-e-r.
21 Q Please summarize your higher education for the Court.
22 A Well, I attended Columbia College, B.A. summa cum laude,
23 in 1963. Then I studied at Oriel College, Oxford University
24 from 1963 to 1965. I studied British history and received a
25 B.A. in 1965. I then came back and received my Ph. D. in
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1 American history from Columbia University in 1969.
2 Q What have you done since then?
3 A I am currently the DeWitt Clinton Professor of History at
4 Columbia University. I have been a faculty member in the
5 Columbia Department of History since 1982. Prior to that, I
6 served as a Professor in the Department of History of City
7 College and Graduate Center at City University of New York. I
8 taught there for ten years.
9 Q What is the DeWitt Clinton Professor?
10 A That is the Chair of the American History at Columbia
11 University. I have held the Chair since about 1988, something
12 like that.
13 Q What is the American Historical Association?
14 A Well, it's the Professional Association of American
15 Historians. It has about seventeen thousand members and it
16 represents all professional historians.
17 Q And you are immediate past president?
18 A I was president to the year 2000. I relinquished that
19 position. You serve for one year. I am now the ex-president.
20 Q What is your area of expertise in American History?
21 A I have written widely, but my main area is History of
22 Slavery and Emancipation, Reconstruction period, and race
23 relations in America.
24 Q Tell us about your publications.
25 A Well, there's been a myriad of books. There's "Free
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1 Soil, Free Labor, Free Men: The Ideology of the Republican
2 Party Before the Civil War." It's still in print. It was
3 published in 1970. And actually I'm surprised to know that
4 it's still being used on college campuses.
5 I've published "Tom Paine and Revolutionary
6 America." Another was "America's Black Past: A Reader in
7 Afro-American History." Collective works in that field.
8 I've published a number of books on Black history,
9 and the Reconstruction period.
10 Q Let me stop you for a moment. Have there been a number
11 of books that you have written that have received professional
12 awards?
13 A Yes, there has been.
14 Q I'm not going to ask you to get into them.
15 Have you published widely in peer review journals?
16 A Right. Again, it has been in the area of the Civil War,
17 the Reconstruction period, slavery, the development of slavery,
18 racial issues.
19 Q If you know, has your work been cited by the United
20 States Supreme Court?
21 A Yes, it has been in footnotes of cases relating to the
22 interpretation of the 14th Amendment. My book on
23 "Reconstruction" deals with that in some detail. It involves
24 Civil Rights legislation after the period, after the passage of
25 the 14th Amendment which has been cited by the Supreme Court
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1 case. I have corresponded with justices about some aspects of
2 reconstruction.
3 THE COURT: At least we know they're doing their
4 homework, or maybe he's doing their homework.
5 BY MS. MASSIE:
6 Q Have you served on committees and organizations over the
7 years?
8 A Yes, I have. I should say I also was president of an
9 organization called American Historian Association. It's a an
10 association for professional scholars of history. I have been
11 one of the few scholars that has been elected president of both
12 organizations, and of the American Historical Association.
13 Q Are those elected by membership?
14 A Well, there will be two candidates and you are voted
15 president by the seventeen thousand members.
16 MS. MASSIE: Judge Friedman, I would move that
17 Professor Eric Foner be certified as a race and American
18 History Historian by the Court.
19 THE COURT: Any objection?
20 MR. RICHTER: No, your Honor.
21 BY MS. MASSIE:
22 Q Professor Foner, there's been a fair amount of testimony
23 in this case so far about the fundamental uniqueness of race as
24 a category. I'm going to ask you several questions about that
25 today. I would like to start off and ask you whether or not
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1 Black people and White people in the United States on average
2 have different world views on race.
3 A Well, a short answer is yes, I believe they do.
4 Race has been a dividing line in American society
5 since the settlement of the colonies at the beginning of the
6 17th Century. African-Americans and White persons because of
7 their distinct historical experiences in this country have
8 developed rather different perceptions about this central
9 theme, a value that all Americans share which is very
10 different than African-Americans. To understand that, you
11 have to look back over a long period of our settlement and
12 also to understand that "race" as we historians use the
13 concept is traced. We talk about its history of race as
14 "socially constructed." I'm talking about race as something
15 that has developed and changed over time. It's a set of
16 ideas. It's what society deals with, the co-existence of
17 people of different backgrounds of that society. Different
18 societies define race in different ways, and our society has
19 made race a very, very rigid dividing line between its
20 citizens. Some citizens thought Blacks were not citizens.
21 As we all know, slavery goes back to the very origin
22 of the American colonies. It was experienced in the early
23 17th Century. But in terms of the question of differential
24 attitudes, outlooks, experiences what is important I think is
25 that the experience of slavery is something that no white
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1 person ever experienced in the United States.
2 Slavery is old, but the slave system that developed
3 in the western hemisphere differed in ways from what had
4 preceded it. First and foremost, it was a plantation system.
5 Slaves were laborers who worked the grounds. But it was also
6 a racial system in which all Black persons bore the stigma of
7 bondage. Remember when people were coming to this country as
8 free immigrants, over three hundred thousand were slaves being
9 brought over. Persons of African descent were not equal to
10 Whites and were not given opportunities as others in this
11 country had.
12 In the 17th and 18th centuries, with the achievement
13 of political dominance, came a harsher era of slavery and
14 avenues to freedom were curtailed. Slaves experienced the
15 institutions of politics and the law very differently than
16 White Americans. Slaves could be bought, sold. They had no
17 legal rights.
18 The American Revolution came and threw the future of
19 slavery into doubt. For the first time, slavery became a
20 matter of widespread public debate and came the hope that the
21 slavery institution could be eliminated. But at the end,
22 slavery survived the Revolution. By 1790, some sixty thousand
23 free Blacks were living in the United States. But it was
24 realized that the two races could not live together on an
25 equal basis. Thomas Jefferson held two views on slaves. He
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1 had owned slaves, but hoped the institution could be
2 abolished. He coupled the idea of emancipation with the
3 colonization of Blacks outside the country.
4 In 1790, the Naturalization Act was passed and for
5 the next eighty years, only White immigrants could become
6 American citizens. And this lasted a long time. Africans or
7 people of African origin could not become naturalized citizens
8 until 1870. Asians could not become naturalized citizens
9 until the 1940s. So the -- another phrase that we use as
10 historians is to talk about a nation not only as a physical
11 entity but as an imagined community. In other words that the
12 nation exists in your mind as well as in geography. The
13 mental picture that existed of this country from the very
14 beginning among the people who were creating it was of a
15 society of white -- of white people, a racial definition of
16 nationhood.
17 And so this left African-Americans with this sensor
18 -- reality of exclusion from the very basic rights,
19 entitlements and aspirations of citizenship. Now,
20 African-Americans by enlarged, wanted to become full-fledged
21 members of American society. In fact, they almost unanimously
22 rejected what was at that time -- and I'm talking about the
23 early 19th centry the mainstream white solution to the slavery
24 question which Jefferson and others put forward which was
25 called colonization which fits again into my point. The
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1 people who said let's get rid of slavery, white people, almost
2 all said let's get rid of slavery and deport the Black
3 population, send them to Africa, send them to the Carribean,
4 send them to Central America. They couldn't -- this is what
5 paralyzed Jefferson who as I said knew that slavery was wrong,
6 but could not envision an interracial society. So whenever he
7 talked about abolishing slavery he always coupled it with what
8 was called colonization.
9 And if you look at the leaders of American life up
10 to the Civil War, Andrew Jackson, John Marshall, Abraham
11 Lincoln, Henry Clay, they all favored colonization. That was
12 the sort of preferred solution. And, of course, it was a
13 symbol of the fact that they could not imagine Blacks as an
14 integral part of the American population.
15 So this -- going back to your point about different
16 perceptions, the perception of not -- of exclusion, of being
17 excluded, is deeply built into Black culture and the Black
18 experience, because of this long reality of enslavement and of
19 deprivation of the basic rights which the society offered to
20 others.
21 And even for freed Blacks, by the time of the Civil
22 War there was -- not in substantial population of freed Blacks
23 both in the north and the south, but they also experienced
24 this sense of exclusion. Even in the north, very few northern
25 states, for example, allowed freed Negroes to vote before the
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1 Civil War. Michigan did not allow Blacks to vote until the
2 time of the 15th Amendment, after the Civil War. They were
3 excluded from public schools. They were excluded from most
4 jobs except the most menial. There were laws prohibiting them
5 from intermarrying with White people. Virtually every state
6 in the union had laws like that. So again, the legal structure
7 and the cultural structure around that, built in this sense of
8 separateness and difference for Black and White.
9 Now, of course the Civil War changes this to a
10 considerable degree. It does abolish slavery as we know.
11 More than that, it writes into our Constitution our laws in
12 the reconstruction period, a different vision of a society
13 grounded on the notion of legal equality for all persons
14 regardless of race. And Black men get the right to vote, and
15 the concept of equal protection before the laws is actually
16 put into the Constitution for the first time. And this changes
17 the society very much. But unfortunately I think the great
18 effort of reconstruction to create the United States as an
19 interracial democracy does not last. It is -- it lasts for
20 awhile, and then there is a reaction against it. It's
21 overturned through numerous ways, violence, politics, et
22 cetera, and a new system of racial exclusion which goes under
23 the name of segregation is put into play in the -- by the turn
24 of the century which as we know lasts well down -- in legal
25 terms -- to the mid 20th century. And in de facto terms, as
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1 we've been hearing today, segregation is still very built into
2 many of the housing and schooling and other patterns of
3 American society today.
4 So when we talk about people having different
5 attitudes, the attitudes are not genetically based. They're
6 not built in because of the color of your skin. They are the
7 product of a long, long history of several centuries of
8 different historical experiences. So when people come into a
9 classroom and as a teacher I see this all the time, they bring
10 with them the accumulated experience of history. They haven't
11 experienced at all individually, but their parents have, their
12 families have, their culture has, and they bring those
13 different experiences and those different attitudes, the
14 attitudes toward freedom itself. In my book on freedom, I've
15 said most White people in America think freedom is something
16 they have. Sometimes they're afraid someone is trying to take
17 it away from them whether it's the federal government or
18 terrorists, or conspirators, or big corporations. Most
19 African-Americans think freedom is something they are still
20 striving to achieve. It's something that lies in the future.
21 It's not a given, it's a struggle. It's an aspiration. And
22 since freedom is such central value in our society, it's the
23 central value, really, that basic difference in outlook
24 percolates out into many, many other areas.
25 Blacks and Whites have very different attitudes of
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1 the federal government. Most White Americans, not all by any
2 means, akin the appeal to on the grounds that the federal
3 government is a danger to their liberty, you know, get the
4 government off your back. Don't let the federal government
5 interfere in your local affairs.
6 Most Black Americans despite a long history of
7 discriminatory policy by federal action still view the federal
8 government much more positively. They still feel that local
9 authorities are often more discriminatory whether it's through
10 slavery, segregation or other things, and they often need --
11 it's through the action of the federal government that racial
12 gains have been made.
13 So attitudes of the government -- and you can put
14 this out, you know, attitude toward the police, towards the
15 courts, toward educational institutions are every different to
16 the two races, and the reason for that is the different
17 historical experience that they've had.
18 Q I'm going to take you back to something you touched on.
19 Why was it so hard for Jefferson and the other national leaders
20 you mentioned to imagine an intergraded nation?
21 A Well, you know, in the Revolutionary period -- I think I
22 said offhandedly, that they weren't really -- they were talking
23 race, but it wasn't race in the way we use the term today.
24 When they talked about race at that time they -- it sort of
25 merged together what we would call culture, language, sometimes
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1 religion. People who weren't Christians who sometimes called
2 it a different race. The word was a lot more amorphous. But
3 nonetheless they believed, the founders believed that a
4 republic, a -- after all, creating a republic -- they created
5 not only an America independent of Britain but an America
6 without a king, without an aristocracy. There haven't been
7 very many republics in history that have succeeded for very
8 long. And they believed the republic to survive, a government
9 based on the will of the people in other words required, a
10 homogeneous population. In other words, it required a
11 population that shared values and experiences. And diversity
12 was really immimetical to the survival of a republic because a
13 republic has to have a single common good that people can
14 pursue. So they just felt that Blacks are so alien in terms of
15 the rest of the population that they could not be citizens of a
16 unitarian republic.
17 Now, of course, connected with that was also the
18 sense of racial inferiority. Not quite in the 19th century
19 sense where by the late of the 19th century a whole
20 pseudoscience built up in which people talk about racial
21 inferiority in genetic terms and things like that. The
22 founders didn't have that kind of science. But they thought
23 maybe it was climate that it produced it, but whatever had
24 produced it, they certainly had the idea -- and Jefferson in
25 notes on the state of Virginia, his great book, addresses this
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1 explicitly. And he wonders. I mean, Jefferson says well,
2 it's obvious that Blacks have not achieve the same things as
3 Whites have, is this because their environment is bad, or is
4 it because they are actually inherently inferior? And he
5 weighs -- it's well worth reading if you want to know the
6 origins of American racial ideas. He weighs it, and
7 eventually comes out and he says well I must conclude that
8 whether from -- whether it's hereditary or not, blacks are
9 inferior to Whites in both the qualities of mind and body.
10 And that statement by Jefferson is broadcast very
11 widely. It's reprinted. It's picked up. It becomes a defense
12 of slavery. So the notion of an inferior group within the
13 population is just, you know, just makes it impossible to
14 think if they become free they can really be contributors to
15 the society and enjoy the same rights and opportunities as
16 other Americans.
17 Q So in other words, the idea of Black inferiority arose
18 out of the slave system?
19 A Well, here is a long historical debate which I'm sure you
20 don't want to hear that much about. But the fact -- it may
21 have preceded it a little bit, but it was in the early colonial
22 days it was often connected with an anti -- a bias against
23 people who weren't christians. Africans were considered
24 heathens and they were devil worshipers and things like that.
25 But once the institution of slavery was established, and it
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1 wasn't established for racial reasons in the sense -- it was
2 established as a labor system. You know, it wasn't just
3 because Blacks were Blacks, that they were brought over as
4 slaves to do the labor. But once you have a system like that
5 established, it generates its own ideological justification.
6 And the -- in a country that prides itself on its devotion to
7 liberty as we do in the Declaration of Independence, in a
8 country founded on the principles that all men are created
9 equal what justification exists for slavery? The only
10 justification is a justification of racial inferiority. So in
11 a contradictory way the very emphasis on freedom and equality
12 which the Revolution generates also generates a very severe
13 form of racism to justify the exclusion of Blacks from these
14 rights which are proclaimed to be the rights of all mankind. So
15 that you have the growth of democracy and egalitarianism and
16 the intensification of racism going hand-in-hand from the
17 Revolution all the way up to the Civil War to defend slavery
18 but also to defend the boundary which excludes Blacks from the
19 rights enjoyed by White Americans.
20 Q Well why didn't the end of slavery put an end to those
21 ideas then?
22 A Well, that's a good question. First of all, ideas take
23 on a life of their own, and they tend -- ideas both good and
24 bad tend to survive long after the conditions that created them
25 have existed. These ideologies become ingrained in the
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1 education, in the culture, in the assumptions of people, and
2 it's very hard for people to change. What I find impressive
3 actually about the periods of the Civil War and Reconstruction
4 is how many people, White people did change their attitudes not
5 only because of the abolishment of slavery, but because they
6 were able to see African-Americans accomplish things that were
7 valued by the society. The service of two hundred thousand
8 Black soldiers on the Union side in the Civil War, I think was
9 very important in undermining racism on the part of a
10 significant number of White Americans.
11 It proves that they were not simply -- you know,
12 when Blacks -- at the beginning of the Civil War they did not
13 allow Blacks into the Union Army because many people felt they
14 would just run away when they were faced with White soldiers.
15 They couldn't stand up and fight against Whites. It would be
16 impossible. Other people thought they would go berserk, and
17 they'll go massacring everybody, you know, they don't subject
18 themselves to military discipline.
19 But when Lincoln did authorize by 1986, the
20 enlistment of Black men, and then they served. Just the same
21 as any, some of them were good soldiers, some of them were bad
22 soldiers. But they were the same was the point. And it did
23 change racial attitudes very dramatically. And without that
24 change you could never have had the 14th Amendment and the
25 15th Amendment written into the Constitution. These were a
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1 complete reputation of the history of the United States up to
2 that point. I mean, after all, as the Court knows, the law of
3 the land in 1860 was the Dred Scott decision in which the
4 Supreme Court declared that no Black person can be a citizen
5 of the United States. And, indeed, Chief Justice Taney made
6 the, you know, often quoted remark that a Black person has no
7 rights which a white man is bound to respect. That is from
8 the Supreme Court of the United States. So seven or eight
9 years later to write into the laws and Constitution this
10 principle of equal rights for all Americans regardless of race
11 was an incredible transformation, and only that crisis could
12 have gotten that into our Constitution at all.
13 So racism is not a constant in the sense that it's
14 always the same. It doest exist unfortunately throughout our
15 history. But like any other product of human activity, racism
16 changes all the time. And its forms change, and its degree of
17 intensity changes. And its institutional manifestations
18 change.
19 And that period of Civil War Reconstruction which I
20 have written a great deal about was a moment when racism did
21 weaken but unfortunately not enough. And the moments pass
22 eventually, and racism reasserted itself, violence, the Ku
23 Klux Klan, other factors, the -- and a sort of wariness in the
24 North with the struggle over racial equality began to take
25 hold. And over this next generation many of those gains were
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1 taken away, of course, were rescinded basically. And the
2 Constitution became a dead letter in many ways as far as
3 African-Americans were concerned.
4 So the continued strength of racism -- you know, to
5 go back to your question, it survived ultimately the end of
6 slavery.
7 Q I have to take exception to two words you just said which
8 are the words "of course" give us a brief cap on Reconstruction
9 if you would.
10 A Well, I wrote a six hundred and fifty page book about
11 this, but I will try to be brief. Reconstruction is what we
12 refer to -- how we refer to the period immediately after the
13 American Civil War when the country went through perhaps its
14 greatest political crisis in history other than the war itself
15 leading to the impeachment of the president, et cetera. And
16 the fundamental issue on the national agenda was -- well, I
17 guess the interrelated question of how to reunify a nation
18 after a civil war, and what was going to be the status of the
19 four million African-Americans who had been emancipated from
20 slavery during the war. Were they doing to have the same rights
21 as White Americans? Were they going to have the right to vote?
22 What was going to be their economic status? Were they going to
23 have the same opportunities to education and to jobs, et
24 cetera, et cetera. This fundamental question created a
25 tremendous political crisis which led to a battle between
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1 Congress and the President. It led to Southern states first
2 attempting -- the white south attempting to put Blacks back
3 into a condition very close to slavery through the famous black
4 codes, laws that were passed in 1865, and '66 to severely
5 restrict the rights of African-Americans.
6 Eventually the Republican Congress overturned those
7 measures, enacted into our national law for the first time,
8 the civil rights law of 1866, one of the greatest, you know,
9 congressional measures in our history, the principle of civil
10 rights, equal civil rights for all Americans. Then put that
11 into the 14th Amendment. Then in 1867, created new
12 governments in the South in which African-American men for the
13 first time had the right to vote and hold office. And you
14 really, as I've said, began to get a functioning interracial
15 democracy in the South for the first time in the American
16 history.
17 Well over a thousand African-American held political
18 office, ranging from Congress down to, you know, justice of
19 the peace, during the Reconstruction period. And, again, we
20 might not quite realize how new a thing that was. In writing
21 this, I tried to figure out how many African-American men held
22 public office in the United States, anywhere in the North,
23 before 1860, and I could find two in the entire history of the
24 United States from its Constitution to 1860, two
25 African-American persons held a public office. One was in
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1 Massachusetts and one was in Oberlin, Ohio.
2 Suddenly you have hundreds if not thousands of
3 African-Americans, most of them ex-slaves, in positions of
4 genuine power and authority in the South. This creates an
5 incredible backlash, mostly widely associated with the Ku Klux
6 Klan and its violence, but also a political backlash and
7 eventually by 1877, these new governments in the South, one by
8 one, are overthrown or abandoned and a new system of White
9 supremacy comes to be instituted in the Southern states which
10 is eventually based on the disenfranchisement of Black voters,
11 the imposition of legal racial segregation, the designation of
12 certain kinds of jobs as white jobs and certain kinds of jobs
13 as black jobs, the black ones, of course, being the most
14 poorly paid and the demenial jobs, and that sort of thing.
15 And, of course, surrounding this system is the extra legal
16 phenomenon of violence, of lynching for those who tried to
17 step outside the boundary.
18 In the North, of course, some of these things did
19 not happen. Blacks retained the right to vote in the North
20 although after the end of Reconstruction, but still many other
21 forms of discrimination, particularly on the economic front,
22 on the housing front, and on the educational front are very
23 pervasive in the northern states as well. I'm certainly am
24 not trying to give the impression that the South is all racist
25 and the North is all humanitarian. It's not nearly that
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1 simple. But the regional system of the South is most severe.
2 And, again going back to historical experience, there's hardly
3 a Black family in this country that doesn't have some roots in
4 the South, and knows about the era of segregation and
5 disenfranchisement and lynching and violence, et cetera. And,
6 again, that's built in. We're now getting to the period where
7 people actually hear these stories from their grandparents and
8 their parents. It's not like slavery which is so far behind
9 that there's no one around today to talk about directly.
10 So this is again built into culture, knowledge of
11 this distinct history.
12 Q You mentioned something about how it was impressive to
13 you that during the Reconstruction period so many white people
14 changed their minds so much about race. Can you say more about
15 that?
16 A Well, it is. I mean, I think -- you know, when one gives
17 a history like this, one can be misinterpreted as saying, oh,
18 all White people are racists, or racism can never change, or,
19 you know, there's no hope for equality in this country. That's
20 not at all what I'm trying to suggest. Absolutely not.
21 Throughout our history there have been very courageous people
22 of all backgrounds. I mean, the abolitionist included many,
23 many white people obviously who put their lives, I mean,
24 literally -- I mean, to be an abolitionist in the North, you
25 were putting your life on the line at the beginning. I mean,
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1 mobs broke up their meetings. Elajiah Lovejoy, the
2 abolitionist editor was murdered by a mob down in Illinois. So
3 it's not -- there have been plenty of white people who have
4 been able to step outside of the racial construction. Maybe
5 "plenty" is perhaps a little bit of an exaggeration, but
6 there's certainly been many examples.
7 But in Reconstruction because of the crisis of the
8 Civil War, because of the contributions of African-Americans
9 to the union victory, because of the self-interest of the
10 Republican Party which wanted to have Blacks voting for them,
11 and many motives came into play here, for a time a
12 considerable number of White Northerns were willing to accept
13 the principle of legal and political equality. This doesn't
14 mean that they suddenly abandoned all their prejudices. At
15 that time people made a very clear distinction what they
16 called social equality, inviting someone to a home and things
17 like that, which they said, no, this has nothing to do with
18 that, you don't invite Black people to our home, and be
19 personal friends with them, we're talking about their status
20 as citizens in terms of the body politic in the legal sense.
21 But it does show that change is possible. One of the
22 reasons for the change was a very, vigorous program of
23 governmental action in order to enforce these rights. Writing
24 them into the Constitution, writing them into the laws. The
25 term "affirmative action" did not exist in 1865, but the
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1 federal government established the Free Men's Bureau which was
2 a governmental agency primarily designed to assist former
3 slaves in the transition from slavery to freedom. And it set
4 up schools in the South, and it took cases out of Southern
5 courts when Black people couldn't get justice, and it issued
6 relief to people who were starving after the war and things
7 like that.
8 And then for a while, unfortunately, not long
9 enough, the federal government actually used troops to
10 suppress the Klan. President Grant sent federal troops to
11 South Carolina, declared marshal law in order to crush the Ku
12 Klux Klan.
13 So one of the lessons of that period is that it
14 requires firm, public action, firm action on the part of
15 government to actually implement these policies. And then
16 when you do that, you do change people's mind. I mean, it
17 does make people accept the legitimacy after a while of those
18 actions if they know those rights are going to be enforced.
19 But, of course what happens is in that period -- I keep saying
20 "of course" it's, of course, to me, but I know not everybody
21 knows its history, what happens is that there is then a
22 retreat and the retreat is in the North as well as the South,
23 and the retreat by the federal government, and by state
24 governments, and -- I'm sorry to say this in a court of law --
25 but the Supreme Court plays a not totally produce-worthy role
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1 in the retreat starting with the slaughterhouse cases and the
2 crookshank, you know, I could list the Civil Rights cases down
3 to Plessy. Little by little the legal edifice of equality is
4 chipped away and restricted. It's not all one swoop. There's
5 not just a court decision saying, okay, Blacks don't have any
6 rights any more. It takes like over a whole generation, but
7 little by little the edifice of equality is reduced and
8 chipped away. The federal government begins to make it clear
9 that they're not going to send troops any more to suppress
10 violence, it's a state matter. The Bargain of 1877 basically
11 leaves government of the South in the hands of white
12 supremacists again. And once people know that these rights
13 are basically not going to be enforced then I think it really
14 undermines completely the possibilities of further progress in
15 terms of not only of legal standing but in terms of attitudes,
16 and stereotypes and racial goodwill in the society.
17 And just one other point, and then a rather sort of
18 self-reinforcing set of ideas strengthens and becomes
19 entrenched which is Blacks are in a position of inferiority,
20 they have lousy education; they have poor jobs; they obviously
21 aren't achieving anything. And the very fact that they are
22 confined to that status then gives justification to the those
23 who say well obviously it's their own fault that they're in
24 that status, otherwise, they would be moving up. So the very
25 results of discrimination then reinforce etiological
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1 justifications for discrimination.
2 Q Are there other examples -- well, I should start by
3 saying is the kind of aggressive intervention by the government
4 that you've just referred to in talking about reconstruction
5 one common element in period of progressive change on matters
6 of race in our history?
7 A Yes, I think it is. There have a number of -- and,
8 again, I'm not trying to paint a totally bleak picture. Quite
9 the reverse. I think there have been moments of considerable
10 progress on race relations. The only thing to bear in mind is
11 that our history is not just as some people like to think of
12 it, a sort of a story, an upward line of progress. It's not
13 quite that simple. There have been moments of progress. There
14 has also been great moments of retreat. Rights can be one and
15 rights can be taken away. So we can never just sit back and
16 rest on our laurels and say, okay, we've solved the problem and
17 now let's go onto some other question. But those moments I
18 would have to identify as key moments of progress in this
19 racial area. First of all, of course, the Civil War era. And
20 in other -- I'll mention the others in a second, but I think
21 the two key things -- or maybe it's three really all
22 interacting is one, wars are often -- wars are often moments of
23 change in race relations because wars require the mobilization
24 of the population. Not a little war of 1812 or something, but
25 a big war requires you to mobilize the entire population, and
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1 you have to offer people something. You know, if you're going
2 to ask for sacrifices, there's sort of an equality of sacrifice
3 on the battle field even though until -- you know, Korea people
4 were fighting in segregated units, but nonetheless they were
5 fighting and dying. And that sort of helps people to redraw
6 their mental map of who is really an American.
7 Second of all, progress comes through public
8 movements, social moments, the Abolitionist Movement, one of
9 the greatest movements in our history. The Civil Rights
10 Movement, the greatest mass movement of the 20th Century. The
11 less-well known movement in the new deal and World War II of
12 black organizations, and labor unions and other -- church
13 organizations and others united around putting the race issue
14 back on the national agenda after it had been off the spectrum
15 you might say for a long time. So wars -- social movements,
16 and finally as I've said, government action. Government
17 action always seems to be necessary to implement these
18 changes, to solidify these changes to make it clear that
19 rights of are no value if there's no one around to enforce
20 them. And one of the problems of our history has been since
21 the Civil War Blacks have had their rights on the statute
22 books. The 14th Amendment was never appealed. It's been there
23 all the time, but they were not enforced. Nobody was around
24 to enforce the 14th Amendment and the Civil Rights laws from,
25 you know, maybe the 1880s down to the 1950s virtually. So you
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1 have a long period of time of rights on the books with no
2 power to actually make sure they were recognized. And that
3 requires a government action.
4 So those I think are the key moments of racial
5 change in our history: The Civil War era; the new deal World
6 War II era; and then the Civil Rights revolution era of the
7 late 1950s and 1960s. All of those saw very remarkable
8 changes, but all of them also were followed eventually by
9 periods of retreat as well where some things were solidified
10 and some things were not, and there was movement backwards as
11 well.
12 Q On the Civil Rights Movement specifically tell us more
13 about the retrenchment.
14 A The Civil Rights Movement of our own era?
15 Q Yes.
16 A Well, I think the key point is that retrenchment is -- as
17 I said at the Reconstruction period is something that is this
18 long process. There's no just single moment where we say, okay,
19 there's retrenchment. Any social movement seems to have kind
20 of a natural lifespan. In other words people can't be in a
21 crisis mode forever. And so it is inevitable that the Civil
22 Rights Movement would eventually -- with the intensity of it
23 would eventually begin to fade a little bit.
24 Of course, as we know, the high point of the
25 movement's accomplishments were the mid the 1960s, the Civil
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1 Rights Law of 1864, the Voting Rights Act '65. But even there
2 those of us who are old enough to have been alive that long
3 remember then that other issues came to the floor which were
4 somewhat more intractable than the dismantling of the racial
5 segregation system of the South as important as that was. We
6 remember the last few years of Dr. Martin Luther King's life,
7 you know, it's sometimes forgotten that King when he was
8 assassinated was -- he was in Memphis not for a Civil Rights
9 Movement but for a strike of sanitation workers, where he was
10 now trying to address the tremendous gap in income, wealth, in
11 poverty and job situation between Black and White, not simply
12 the sort of legal structures of segregation.
13 The questions of unequal schooling we've heard about
14 today, of unequal job access, the accumulated weight of
15 history in these great differences between Black and White in
16 terms of help and life and expectancy and family income and
17 wealth. Those prove more difficult to address through public
18 policy than simply giving people the right to vote, or saying,
19 okay, you can no longer maintain racially segregated, you
20 know, water fountains, and restrooms and things like that,
21 lunch counters.
22 So part of the retrenchment was just the fact that
23 the issues that came to the fore were more difficult to deal
24 with, but then what happens I think is that in the very effort
25 to deal with them and affirmative action really begins -- some
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1 people don't even realize this, under the Nixon Administration
2 in a very powerful way. But the very effort to address these
3 problems begins to lead to some resentment on the part of
4 others. And some white people begin to say, well, wait a
5 minute, why is the government doing this so much for
6 African-Americans? Is this really right after all we've given
7 them their rights, what are they complaining about?
8 People who don't have a very -- you know, aren't
9 particularly that knowledgable about the long history of
10 inequality, racial inequality in the United States find it
11 easy to say, okay, the problems have been solved and,
12 therefore, let's, you know, let's move on so to speak, let's
13 have normalcy. We've given these people their rights so we
14 can move on.
15 And retrenchment I think since the Civil Rights
16 Movement has taken the form not as it did in the late 19th
17 Century of taking away the right to vote. I mean,
18 African-Americans still have the right to vote, but of a
19 diminution in the willingness to enforce civil rights
20 legislation. There has been emphasis in the 1980s and '90s.
21 Attorney Generals very often have gone to court trying to
22 restrict the scope of civil rights legislation. Even the law
23 of 1866 amazingly enough came before the Supreme Court in the
24 late 1980s and Attorney General Meese insisted that it had a
25 very limited impact in many ways or that the court should rule
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1 that way.
2 A general sense that the problems have been put
3 behind us. I mean -- in a sense that's what I mean by
4 retrenchment, an unwillingness to recognize that many problems
5 still persist in our society and require vigorous action to
6 deal with them. Once you adopt the sort of frame of mind that
7 the problem that the problem has fundamentally been solved,
8 then it becomes very easy to say well, therefore, government
9 policy is attempting to deal with these problems are
10 illegitimate. That's another area if you look at public
11 opinion polls. We heard this morning that some of the reasons
12 public opinion polls aren't totally reliable, but due to
13 public polls another key difference in outlook between most
14 African-Americans and most whites is simply on this question
15 is does race matter in American society. Is race an issue?
16 Most white Americans today say no, race is not a big issue in
17 American society, it has been solved. Most African-Americans
18 certainly say, yes, it is an issue. Racial inequality still
19 exists. Well, that fundamental difference in outlook is
20 reflected in differences of attitude toward government policy
21 and things like that.
22 Q What's your view on whether race is still an issue in
23 America?
24 A I believe it very much is, absolutely. I can't imagine
25 how anyone could think it isn't unless one has not encountered
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1 large numbers of non white people in one's life. And I think
2 there unfortunately quite a few people in our society who are
3 in that category.
4 Q Dr. Foner, you mentioned disparities in wealth and income
5 and so forth by race several minutes ago. Can race be captured
6 by socio-economic status?
7 A Well, as I said before African-Americans were initially
8 brought to this country to be for us laborers. So they have
9 always occupied an inferior economic status, or a degraded
10 economic status. And then after the emancipation of slaves,
11 African-Americans by in large were confined for many, many
12 years to low-paying, menial, low-skilled jobs. So the center
13 of gravity of the Black community has always been lower in the
14 social scale than for Whites although it the last generation
15 thanks to the Civil Rights Movement and thanks I must say to
16 affirmative action programs both in the universities and by
17 employers a considerable Black middle class has developed as we
18 all know. And this is a very positive development for our
19 society. So class does have something to do with the racial
20 divide, no question about it. And the Black middle class is
21 not quite the same as the White middle class though. It's --
22 most Black middle class people are much more precarious in
23 their economic status. Their income -- if you take two -- a
24 Black and a White family with the same income you will almost
25 certainly find that their assets, their family wealth are quite
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1 different. Many fewer Blacks own their own home, for example.
2 Far fewer -- very few actually Black families own any stocks.
3 Nowadays it's not such a bad thing. But -- until recently that
4 was a depravation --
5 But -- in other words, their assets -- now why is
6 that -- wealth is the accumulation of history. Income is what
7 you get today. Family wealth is the accumulation of history
8 and so all these discriminations are built in to the different
9 class status of Blacks and Whites. But this a round about
10 what of getting to your question is, no, you cannot capture
11 racial inequality simply by talking about socio-economic class
12 and equity. There is an overlap and the Black condition in our
13 history has had a powerful class element but the racial
14 element is also powerful and at most points is actually more
15 powerful. Black middle class people face numerous
16 depravations in our society which White people of that
17 economic class do not face.
18 If you are driving a nice expensive car and you are
19 a White person, people -- from where I come anyway, people
20 will say, oh, that guy's got a nice car. If you are a Black
21 person driving a nice expensive car you are an object of
22 suspicion and likely be stopped by the police on the New
23 Jersey Turnpike. So your socio-economic status does not
24 obviously trump or eradicate your racial status.
25 That may be a fairly small example but it is -- it's
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1 an indication of the fact that the racial differences still
2 are there even if you take people of the same socio-economic
3 level.
4 Q In your view are ideas about citizenship still defined
5 around race in the way you were describing earlier?
6 A Well, citizenship or in the way we talk about it nowadays
7 as historians the question of who is an American or who is
8 entitled to be an American that issue has always been very
9 contiguous in our history. As I said at the very beginning our
10 history, citizenship was pretty much defined for White
11 Americans. Nowadays -- I don't know why we keep mentioning
12 California, but of course, there are big debates in California
13 about the rights of illegal aliens, Spanish-speaking people,
14 language issues. These are always contiguous issues. And I
15 think today, of course, our immigration laws are a lot less --
16 you know -- they're not at racially restricted as they were in
17 the past, but certainly the mental map of who is a genuine
18 American, for many, many people always has a racial component
19 to it.
20 A colleague of mine at Columbia, Gary Okehero (sp)
21 is a Japanese American. He was born -- he's as American as I
22 am. His ancestors have been in America as long as I have, but
23 he physically looks Asian. And he is always running into, you
24 know, he's talking about cab drivers who say, well, where did
25 you grow up. He says, well, I grew up in -- you know,
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1 Colorado, and then they say, oh, you speak English so well.
2 He says, of course, I speak English well, I grew up in this
3 country. He doesn't speak Japanese. They think he speaks
4 Japanese because he looks Japanese. And they're always
5 saying, but -- they assume he's not really an American because
6 of the way he looks.
7 So there is that sort of under -- the unstated
8 assumption that the genuine American is a White American.
9 That is the normal status. And those who are not that are
10 slightly abnormal in some way or another.
11 Q You raised the question of racial minorities other than
12 Black people in the United States. What's the importance of
13 the history of Black people in the U.S. for understanding race
14 more broadly?
15 A Well, obviously anyone who is awake in our society today
16 knows that race is not simply a question of Black and White
17 today, and probably never has been although more so today than
18 ever, large Asian population, large Hispanic population. The
19 racial configuration