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 of the country is much more complex. And
20 each of those groups, Latinos, Asians, Native Americans have
21 its distinct historic history which is not the same as that of
22 African-Americans. Nonetheless because of the importance of
23 slavery in our history, because of its early presence and its
24 centrality to the development of the United States, and slavery
25 was the major economic institution of the American colonies
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1 and, indeed, one might say of the United States of America up
2 until 1860, the power of the institution of slavery and the
3 presence of that large African-American population early on
4 meant that the racial definitions regarding African-Americans
5 became the template within which other groups were fit,
6 sometimes not very comfortably. So that, for example, when the
7 area that is now California and the Southwest was annexed to
8 the United States in 1843, after the Mexican War and the Treaty
9 of Guadalupe Hilalgo there was a lot of debate about are these
10 Mexicans white. What are they? Are they white? Are they non
11 white? In other words you had to define whether they were
12 white or not. You couldn't -- because that was the category:
13 white and non white based on the black-white divide. And in
14 California they were at first defined as white because a lot of
15 these -- California didn't have that large of population at
16 that moment, and a lot of the original inhabitants of the
17 Mexican inhabitants were big land owners. And they wanted to
18 make sure their property and their power were maintained under
19 the new American regime and they were literally defined as
20 white in the law of California initially. Whereas in Arizona
21 and New Mexico where the Hispanic population was much poorer
22 and much more intermingled so to speak with the Indian
23 population, the Native American population, they were defined
24 as non white. This is a good example of what we mean how race
25 is socially constructed. The same person in one state is white,
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1 he goes to another state, he's non white. Obviously, that's
2 not a scientific principle; it's a social principle.
3 So that principle of exclusion on the basis of non
4 white status has been applied to other non white groups in our
5 history. Asians very extensively in the 19th Century although
6 in the 20th Century, more recently Asians have begun to be
7 absorbed more fully into what one might almost call the white
8 population. At least some, the more economically successful
9 groups of Asians.
10 One indication of the severity of the Black-White
11 divide though is -- again, this is statistics, you can't prove
12 that much with statistics, but is intermarriage race. Today a
13 majority of Asian-American women marry non Asian men which
14 shows how they are being absorbed so to speak into the White
15 population. But among Black and White even though you may see
16 a few of these on tv, the number of interracial marriages is
17 still miniscule. That cultural divide is still as powerful as
18 it has been for most of our history.
19 Q How is it that the enslavement of Black people came to be
20 such a central part of the American economy and of American
21 society?
22 A Well, unfortunately is the case that, you know, we have a
23 national -- as other historians use is the invention of memory.
24 You know, you sort of create a historical tradition which is
25 partly true and partly mythology. We have invented a historical
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1 memory of freedom-loving people moving from oppression in
2 Europe to settle in this new world. Of course, there are many
3 people that is true of. But there weren't enough of them
4 actually in the colonial era to actually settle the country.
5 And so very early on it was ascertained that if the people who
6 were in charge, people who wanted to set up large agricultural
7 enterprises, et cetera, plantations needed to get a forced
8 group of laborers. They first tried with the Indians. But the
9 Native Americans were not -- it's very hard to enslave people
10 on their own territory. Slaves are almost always aliens
11 brought from somewhere else. Captives of war or something like
12 that. People who are on their own territory can run away. It
13 causes warfare constantly if you're trying to enslave people
14 who are right there. The Indians were not a very viable group
15 of enslaved laborers. Africans were available. There was a
16 slave trade already existing in Africa. There was already a
17 slave trade across the Atlantic in the period of the -- in the
18 rise of the Spanish Empire, even before the settlement of the
19 British colonies. Africans were available. They were
20 different. They were alien. They were brought over.
21 By the 18th Century -- in the 18th Century more
22 enslaved Africans came to the thirteen colonies than any other
23 group of immigrants. More Africans than British. More
24 Africans than Irish. More Africans than Germans. This was
25 the largest group of new arrivals in 18th Century America.
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1 Slavery became the most powerful economic institution. It was
2 the only institution really creating a commodity which has
3 value in the world market. The tobacco, later on the cotton
4 of the South were extraordinarily valuable commodities in the
5 world market place. So slavery became the most prominent
6 economic institution.
7 I'll give you -- I said statistics don't anything
8 but I'll give you one, in 1860, the value of slaves, the
9 economic value of slaves, if you just -- the market value of
10 slaves as property was about three billion dollars of the
11 slave population. Now that's a lot of money, but that's when
12 a million dollars meant something.
13 The total -- the economic value of all the
14 railroads, factories and banks in the United States was less
15 than three billion dollars. In other words the slave
16 population was worth more economically than all the factories,
17 railroads, and banks in the United States put together. So
18 this was a pretty -- that's why we had to have the Civil War
19 to get rid of slavery. I mean, they weren't exactly ready to
20 give it up voluntarily.
21 Q Is that why the Civil War and Reconstruction were such a
22 period of crisis?
23 A Well, it was a period of crisis partly because it was the
24 destruction of the largest economic institution in the nation,
25 if you want to look at it that way. And because, as I said, it
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1 raised this issue of -- really the question they had to debate
2 was it -- is who an American? What is an American What does it
3 mean to be a free American? That was the problem of
4 Reconstruction. Four million people had been freed. What does
5 it mean to be free? Is there going to be a separate freedom
6 for these Black people or are they going to enjoy the same
7 rights as White Americans? That was the question fought out in
8 Reconstruction.
9 Unfortunately the policy adopted then as we said did
10 not stick. The great historian Seband Woodward coined the
11 phrase which other people then used that the Civil Rights
12 Revolution of the 1960s was the second Reconstruction, the
13 second effort to implement that principle of equal rights for
14 all Americans. It's an interesting reflection that it took the
15 country a century to try to come to terms with the agenda
16 which was announced at the end of the Civil War. It took a
17 whole century to get to the point where those principles could
18 actually be implemented in our society. That's another
19 example, you know, of just the weight of history. History is
20 not just a dead past. It's still alive in our institutions,
21 in our memories, in our attitudes, in our stereotypes, and the
22 ways we deal with each other, and our attitudes. So that's why
23 everybody has to know this history. It's not just some arcane
24 academic subject.
25 Q Have we gotten all the way there?
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1 A To where?
2 Q To equality and intergradation?
3 A No, I'm afraid we haven't. I continue to hope that we
4 will one of these days. But as a historian -- I don't think we
5 should be surprised that we haven't gotten all the way there.
6 If you take the long view and you see that slavery existed for
7 two and a half centuries in this country, followed by another
8 century virtually of racial segregation and Jim Crow and
9 disenfranchisement, we have made progress, no question about
10 it. I assume you're not one of those that say, oh, everything
11 is always the same. But we still have a ways to go, and that's
12 just a challenge we face as a society.
13 Q Has it been necessary for us to stand together, people of
14 difference races White people, Black people, Latino people,
15 Native Americans, Asians in order to progress?
16 A Well, I think so. As I've said, the greatest progress
17 has come at times when people did that. The abolitionist
18 movement was an intergraded movement. It was the first
19 intergraded in American history of Blacks and Whites working
20 together. The period of World War II was one in which as I
21 said Black organizations like the NAACP, and the Urban League
22 worked very closely with the American Jewish Congress, and with
23 the National Council of Churches, and with trade unions, the
24 CIO on issues of racial equality. And the Civil Rights
25 Movement brought together people of all backgrounds. So, yes,
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1 I don't there's any reason -- well, I think it would be
2 undesirable for every group to go its own way and just assume
3 that it has no role in achieving equality for other people.
4 Q In your opinion in American history on the contrary
5 progress has come through intergraded groups standing together
6 --
7 A I believe so, yes. It's not always that easy.
8 Intergraded groups face internal tensions. Even the
9 abolitionists had conflicts between Black and White
10 abolitionists. Fredrick Douglass eventually decided he had to
11 set up his own newspaper because he felt the White abolitionist
12 newspaper by William Garrison was not fully reflecting Black
13 attitudes. This is not simple, but I think Douglass always
14 worked very closely with great White abolitions like Wendell
15 Phillips and people like that. And, you know, I think that's a
16 model for how one ought to address, or ought to think about how
17 social movements sort of operate in addressing these problems.
18 MS. MASSIE: Thank you, Professor Foner.
19 THE WITNESS: You're very welcome.
20 MR. PAYTON: Your Honor, I'm very mindful of the
21 time and I'm a little nervous and I do have some questions,
22 not a lot, but because of the time I would actually like to
23 see if they want to go first.
24 THE COURT: That's fine. I appreciate that. I was
25 going to tell you the same thing that maybe we should --
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1 MR. RICHTER: That's fine with us, our Honor.
2 THE COURT: He's all yours.
3 Please, no laughing.
4 MR. RICHTER: I didn't think I would get up here.
5 CROSS-EXAMINATION
6 BY MR. RICHTER:
7 Q Good afternoon, Professor Foner.
8 A Yes, hello.
9 Q My name is Kai Richter. I represent the plaintiff in
10 this case, Barbara Grutter. We haven't met before.
11 A No.
12 Q Are you being paid for your work in connection with this
13 case?
14 A I was paid by Wilmer, Cutler & Pickering to produce a
15 report which is part of the record. I am -- I regret to say I
16 am not being paid for my appearance here today. My air fare
17 was paid, but I am volunteering my services free of charge to
18 testify.
19 Q And you were paid two hundred dollars an hour in
20 connection with your report?
21 A Correct.
22 Q Aside from your work for the Intervenors in connection in
23 this case are you affiliated with the University of Michigan or
24 the law school in any way?
25 A No, I have no -- I have lectured as a guest of the
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1 history department there a few times, but I have no official
2 connection with the University of Michigan, no.
3 Q You've never been employed there?
4 A No.
5 Q You've never done any consulting work or other work for
6 the university?
7 A No.
8 Q You never went to law school there?
9 A I've never went to law school.
10 Q And you never went to undergraduate school there?
11 A No, no never attended.
12 Q And I take it you don't know anybody from the law
13 school's admissions office?
14 A No, I don't believe I do.
15 Q Do you know how many under-represented minority students
16 are currently attending the law school?
17 A No, I don't.
18 Q Do you know anything about the admissions policy at the
19 law school?
20 A Very little. All I know is that they are using some kind
21 of affirmative action program which involves the consideration
22 of race, but I'm not -- I'm certainly not an expert on the
23 procedures of the University of Michigan, no.
24 Q Have you ever read their policy, their admissions policy?
25 A No.
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1 Q So would it be fair to say then, Professor Foner, you do
2 not know the extent to which the university takes race into
3 account as part of its admissions process. You're not an
4 expert on that subject.
5 A That's correct.
6 Q And likewise you're not an expert on whether the
7 university's admissions program constitutes a double standard;
8 are you?
9 A I'm not an expert on the specific program and, therefore,
10 I wouldn't be able to say anything like that, right.
11 Q And you do not consider yourself an expert on the subject
12 of standardized testing; do you?
13 A Definitely not.
14 Q Or on the subject addressed yesterday by Professor Allen
15 with respect to the GPAs of minority students?
16 A I wasn't here yesterday when he testified, but probably
17 you're right, yes.
18 Q So --
19 A I would say though as a teacher at Columbia University
20 for many, many years I have encountered -- I do have experience
21 in admissions processes, and in dealing with students of
22 diversed backgrounds, dealing with their GPAs trying to wonder
23 whether their SAT scores are meaningful indicators. Things
24 like that. I don't know if that is expertise, but I do have a
25 lot of experience in teaching in a diversed academic
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1 environment.
2 Q But you're here to testify today and you have testified
3 today and you've expressed some opinions in your report
4 concerning the history of societal discrimination against
5 Blacks and other minority groups.
6 A Yes, right.
7 Q I'd to talk very briefly about some of the opinions that
8 you expressed in your report.
9 A Yes.
10 MR. RICHTER: Your Honor, may I approach the
11 witness?
12 THE COURT: You may.
13 BY MR. RICHTER:
14 Q Is that the report that you wrote?
15 A It certainly looks like it, yes.
16 Q Could you turn to the fourth page of that report for me,
17 please?
18 A Yes.
19 Q Could you turn to the second full paragraph, and the
20 second sentence in that paragraph starting with the word
21 "today."
22 A "Today, with the Hispanic and Asian" --
23 Q Correct. It says, "Today, with the Hispanic and
24 Asian-American populations growing rapidly, the familiar
25 bipolar understanding of race in America as a matter of black
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1 and white is increasingly out of date."
2 A Right.
3 Q Do you agree with that statement?
4 A I wrote it. I definitely agree with it, although as a
5 historian I would have to say pulling one sentence out of a
6 fairly lengthy exegesis doesn't really give the full meaning of
7 what I'm trying to argue because I obviously go on to say why
8 I'm focusing on the black and white template as the basic
9 definition of race in America.
10 Q Sure, and I'll just go on to the next one that you have
11 written there.
12 A Okay.
13 Q "Nonetheless, this report of the salience of race in
14 American history will focus primarily, although not
15 exclusively, on the experience of African-Americans."
16 A Right.
17 Q And the experiences of African-Americans is primarily
18 what you've testified about here today.
19 A That's right.
20 Q Okay. I'd like to turn for just a minute to the portions
21 in your report which deal with discrimination against Asian
22 Americans.
23 A Okay.
24 Q Could you please turn to the 22nd page of your report?
25 A Right.
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1 Q The first full paragraph, and the second to the last
2 sentence of that paragraph, starting with the word "beginning."
3 A Yes.
4 Q It says, "Beginning in 1882, Congress excluded immigrants
5 from China from entering the country altogether."
6 A Right.
7 Q "Exclusion profoundly shaped the experience of
8 Chinese-Americans, long stigmatizing them as unwanted and
9 unassimilable, and justifying their isolation from mainstream
10 society."
11 A Right.
12 Q Could you now turn to the tenty page of your report, the
13 first full paragraph.
14 A Okay.
15 Q The last sentence there, "For eight years only white
16 immigrants could become naturalized citizens. Blacks were added
17 in 1870, but not until the 1940s did persons of Asian origin
18 become eligible."
19 A Right.
20 Q And if you will just bear with me I'll just bring you to
21 one other excerpt from your report, page 34, the second full
22 paragraph, the first sentence there.
23 A Yes.
24 Q "Of course the internment of tens of thousands of
25 citizens of Japanese descent during the war belied the new
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1 spirit of racial accommodation."
2 A Yes.
3 Q In light of these experiences do you believe there is
4 also a longstanding history of societal discrimination against
5 Asian Americans in this country?
6 A Yes.
7 Q And I believe you mentioned in your testimony here today
8 you gave an example involving an Asian friend of yours and a
9 cab driver.
10 A Yes.
11 Q Do you believe that Asian Americans continue to
12 experience societal discrimination today?
13 A I think some of them do, but considerably less than in
14 the past.
15 Q Would you agree with me, Professor Foner, that Asian
16 Americans are well represented in higher educational
17 institutions today?
18 A Yes, it certainly seems that way.
19 Q Including those institutions, Professor Foner, such as
20 those in the University of California system which do not
21 consider race in their admissions process?
22 A I believe so. I don't have statistics on that, but I'm
23 certain that's true.
24 Q Let me just provide you with some of the specifics that
25 were provided to us here today in connection with Professor
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1 Garcia's testimony. I can't stipulate to the accuracy of these
2 statistics, they're not my own, but I'll just represent to you
3 that the University of California at Berkeley looking at their
4 1999, enrollment figures here on this chart shows that there
5 are one thousand two hundred and three Asian Americans who were
6 enrolled in 1999. Does that number surprise you, out of a
7 class of three thousand two hundred and eighteen, freshman
8 class?
9 A I don't know if it surprises me or not because I really
10 have nothing to gauge it against. But it shows a considerable
11 number of Asian American students if that's what you're
12 suggesting.
13 Q Sure. Let me give you something to gauge it against.
14 Does it surprise you that the number of Asian American students
15 who enrolled in that freshman class in 1999, the most recent
16 years for which figures are reported here on this chart is over
17 two hundred students greater than the number of Caucasian
18 students which is nine hundred and eighty-two?
19 A Well, I would assume that means that given the criteria
20 for admissions that we've heard about earlier today, that Asian
21 Americans, at least some portion of the Asian American
22 population, and after all Asian American as you know is a
23 category which includes a very wide of variety of people of
24 different national backgrounds and different periods of
25 immigration to the United States. One would really have to
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1 understand the significance of those figures, one would have to
2 break it down by who they are, are these primarily the children
3 of people who have immigrated since 1965, when a very
4 considerable number of pretty well-to-do and skilled and
5 educated Asians came in and have continued to come into the
6 United States under the new immigration law of 1965, which
7 emphasized skill and family reunion rather than national origin
8 as it had been before. I don't think you would find too many
9 children of Cambodian refugees, maybe you would. But it
10 suggests that, you know, one would have to now the family
11 background and the nature of the school systems that these
12 Asian students are coming from to really gauge the significance
13 of those figures. I think by themselves the figures don't tell
14 us a heck of a lot.
15 Q You've given us a lot of historical testimony here today.
16 Did you express any opinions in your report or here today and
17 correct me if I've missed something, concerning the legislative
18 history of the 14th Amendment?
19 A I didn't actually, although if you want me to, I can
20 certainly express opinions about it. I've explained that
21 pretty carefully, but I wasn't asked about it.
22 Q Well, you don't contend, do you, that Congress intended
23 to allow for prefaces in favor of Blacks and other minority
24 groups by approving the 14th Amendment in the 1866; do you?
25 A I think that if you read the debates in Congress at the
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1 time of the 14th Amendment as well as the ratification sections
2 of the legislatures that ratified it, you will find that these
3 phrases which have been debated the courts since then, equal
4 protection of the law, due process of laws, et cetera, had a
5 wide variety of meanings at that time. And many -- I don't
6 think there was a single original intent of that language, but
7 certainly many of the people who were framers and ratifiers of
8 the 14th Amendment did not understand equal protection of the
9 laws as to be incompatible with targeted efforts to redress the
10 legacy of two hundred and fifty years of slavery. After all as
11 I've said these are the same people who voted to set up the
12 Freed Men's Bureau, they're same people who set up the Freed
13 Men's Savings Bank which was aimed to encourage thrift among
14 African-Americans. So clearly there -- another point about the
15 14th Amendment which we tend forget and it's easy to forget is
16 that the people who wrote it and ratified it expected it to be
17 enforced and abided by. In other words they expected the
18 states for this to be the law of the land. They expected
19 states to abide by the principle of equal treatment of all
20 Americans, and particularly the former slaves. If that had
21 actually happened, and had been institutionalized for the
22 period from the 14th Amendment to today, we might not be in the
23 situation we are today.
24 So I think the framers of the 14th Amendment thought
25 that they were lying the foundation for a society of equality.
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1 They did not believe that it was a contradiction to say we're
2 lying the foundation for a society of equality yet we have
3 here a group of people who have been slaves for two hundred
4 and fifty years, we must make particular efforts to lift them
5 up to a position where they can enjoy equality in society.
6 So I don't see any contradiction between affirmative
7 action and the original intent of the 14th Amendment.
8 Q But you did testify here, did you not, Professor Foner,
9 that we didn't see the advent of affirmative action in this
10 country until the Nixon Administration?
11 A Affirmative as it's currently instituted. There were
12 little examples of what might be called affirmative action as I
13 said in the period of Reconstruction itself, but then a long
14 period ensued as I was saying in which the ideal of equality
15 was completely pushed off the national agenda. So one would
16 hardly expect action towards affirmative action, for example,
17 under Woodrow Wilson's Administration who introduced racial
18 segregation in Washington, D. C. or, you know, even President
19 Roosevelt who was so closely tied into Southern democratic
20 power in the Congress --
21 The fact that affirmative action arise as a fully
22 institutionalized policy until the Nixon Administration I
23 don't think tells you much about the intentions of the 14th
24 Amendment. It tells you about that long period of inequality
25 that elapsed between the 19th and 20th centuries.
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1 THE COURT: Let me ask one question since you've
2 talked about original intent. As an historian -- and maybe
3 you're not the perfect person -- do you believe that the
4 original intent is an important consideration of the
5 Constitution?
6 THE WITNESS: Well, we debate this all the time. Of
7 course, historians -- our view as historians of original
8 intent is a little bit different than lawyers or judges in the
9 sense that -- my experience is that the legal definition is
10 rather narrowly focused -- I may be guilty of this myself in
11 my answer, to finding a quote from a member of Congress who
12 says, well, here is the purpose of this bill or amendment,
13 whereas, historians are always asking the question what did
14 people intend to do? But if I'm for the intent of the 14th
15 Amendment, I'm also going to look at the press at the time,
16 and the letters of abolitionists, and the -- and Black. You
17 know, nobody ever considers Black attitudes to the 14th
18 Amendment. They were part of the population at this time, and
19 they had a conception of what equality was, equal protection,
20 which might not had been the same as all Whites. It's the
21 intellectually universe so to speak.
22 But to go to your question, your Honor --
23 THE COURT: The question goes to the Constitution
24 not necessarily the 14th Amendment --
25 THE WITNESS: Well, that is part of the
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1 Constitution. Historians have made this -- I mean, personally
2 -- you're asking me, I'm not a law school graduate --
3 THE COURT: I'm asking you as a historian.
4 THE WITNESS: I believe in what I guess Justice
5 Marshall called a living constitution. In other words I don't
6 believe we should be trapped in the prejudices and outlooks of
7 people as great as they were, lived two hundred and some odd
8 years ago. Their conception of democracy was entirely
9 different than ours, that's why we're saddled with this
10 electorial college which as we saw doesn't always reflect the
11 popular will. Their conception of race was very retrograde.
12 That's why they protected slavery in the Constitution. I
13 don't think constitutional interpretation should be merely
14 rearticulating over and over again the particular beliefs of
15 1788, 1789.
16 On the other hand, we do have a written constitution.
17 We can't just -- you know, there must be a middle ground
18 between saying we can only adopt the views that people held
19 two hundred years ago and saying well the Constitution has no
20 meaning and we can throw any idea into it that we want.
21 My view as a historian says we must find the middle
22 ground between respecting the original purposes in general and
23 yet adapting them to the needs of the present. Of course,
24 courts do that all the time. I mean, what did the presidents
25 -- what did Jefferson think about regulation of the airline
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1 industry? I mean, obviously we have to try to adapt those
2 principles to a modern world. And the same thing is true of
3 equal protection and due process and principles, and things
4 like that.
5 You know, I think John O. Franklin testified very
6 interesting about his experience trying to do research for the
7 Brown case and find out the original intent of the framers of
8 the 14th Amendment vis-a-vis school segregation. Of course,
9 they found out they couldn't find it because there were no
10 schools at that time. The South didn't have a public school
11 system. They just had -- they weren't debating
12 intergradation, segregation in a modern sense. There was no
13 public schools system in the Southern states before the Civil
14 War. So obviously that was not a -- you know, we just can't
15 our debates, plunk them down a century ago and look for the
16 opinions of the framers on that. It's unhistorical.
17 Sorry, for that --
18 THE COURT: I asked the question, I appreciate the
19 answer. I just don't want to step on their cross-examination.
20 BY MR. RICHTER:
21 Q But it's not your opinion, is it, Professor Foner, that a
22 majority of those in Congress intended to allow for preferences
23 in favor of Blacks and other minority groups by approving the
24 14th Amendment?
25 A I honestly don't think that question -- in a narrow
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1 sense, I would say, yes, that was not the main intent to impose
2 preference, what you call preferences, but to allow
3 preferences. I'm not sure I would say that most of them were
4 against that. They -- it depends what you by preferences. Did
5 they want to introduce a quota system whereby every legislature
6 in the land would have a certain proportion of Black
7 representatives? No, obviously not. But did they want to take
8 into account the unique particular history of African-Americans
9 in the country? I think they believed that was a legitimate
10 way of dealing with the legacy of slavery.
11 Q I know we're pressed for time so I'm going to move on.
12 A Okay, thank you.
13 Q In your report I think you mentioned that affirmative
14 policies has been in place in public and private institutions
15 for a generation; is that correct?
16 A Yes.
17 Q Is it your view that such policy should be continued
18 indefinitely in spite of the harms to non minority students?
19 A Well, first of I reject the premise that they have
20 created any harms in non minority students. We have -- at my
21 university we have affirmative action programs at both the
22 undergraduate and graduate levels and I think they have been
23 immense benefit to everybody at that university.
24 I believe that affirmative action frankly is a
25 rather small policy although very valuable that attempts to
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1 deal with very large social policies -- social problems,
2 pardon me. I think they benefit the whole society? And should
3 they continue indefinitely? I don't know quite what that
4 means. But as I say, historians take a long view. We've had
5 three hundred and fifty years of slavery and segregation;
6 therefore, a period -- it may be a long period, it may be a
7 fifty-year period, it may be something like that of
8 affirmative action is not unreasonable given the considerable
9 inequalities that are a result of our history.
10 Q Well, it's been about thirty years since the Nixon
11 Administration, do you believe that affirmative action should
12 be continued in higher education despite the stigmatizing
13 effect that these programs have on minority students?
14 A Well, once again, I don't quite accept the premise of the
15 question. I have a lot of minority students. I don't notice
16 any of them feeling stigmatized. By the way I don't think --
17 you know, I went to a college, Columbia College which was all
18 male and all white. There was one Black guy in my class, but
19 basically all White. I never met a White student who felt
20 stigmatized because he didn't have to compete with women for
21 example for admission. If women had been admitted into
22 Columbia College as they are today half of those White male
23 students would not have been there. And yet not one of us
24 thought we're getting something, you know, kind of under the
25 table here because we don't really have to compete, we're
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1 getting affirmative action because we're men. Not at all. We
2 felt -- we were qualified and we were, you know, doing the best
3 we could, and we were very happy to be there.
4 If individuals feel stigmatized or more seriously,
5 if White people adopt an attitude that stigmatizes minority
6 students because of affirmative action I think that is most
7 unfortunate and I think there is a social cost in that, no
8 question about it. But I think that cost is a cost that
9 society has to pay for the much greater benefits that
10 affirmative action brings to our society.
11 Q Just one further question. I'm going to read the final
12 page.
13 THE COURT: What is it?
14 BY MR. RICHTER:
15 Q This is an article you wrote in the "Chronicle of Higher
16 Education." Just turn back to the title page.
17 A Right, 1978 --
18 Q And then if you could turn to the second page. It says
19 "Bakke Reconstructed." It's an article you wrote. I believe
20 it was in your vitae. If you turn to the final page which I've
21 reproduced it here. I'm going to read a portion of this to
22 you. The second column, third paragraph from the bottom --
23 rather the second paragraph from the bottom.
24 "Yet because" -- and you're speaking of affirmative
25 action policies at higher education -- "Yet because they do
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1 not address the roots of the contemporary black conditions
2 such program to achieve their goals must continue to exist
3 indefinitely. The cost will be high. A permanent distortion
4 of society's perception of black as awards of the state as the
5 growing resentment of the government, bureaucracy charged with
6 enforcement." Did you write that?
7 A Absolutely.
8 MR. RICHTER: No further questions.
9 THE COURT: You've got a couple of minutes. Since
10 your client paid for the report, we've got to give you some
11 time.
12 MR. PAYTON: Do I have a few extra minutes after
13 five?
14 THE COURT: I can't give you too much, but go on.
15 CROSS-EXAMINATION
16 BY MR. PAYTON:
17 Q Good afternoon, Professor Foner.
18 A Good afternoon.
19 Q The first thing I think I want to do since they asked you
20 questions about the report you wrote, that we ought to
21 introduce the report. They asked questions, let's put the
22 report in. We can't have testimony without report.
23 THE COURT: I don't think anybody has any objection.
24 Somebody will mark it later.
25 BY MR. PAYTON:
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1 Q I do have a few questions about our history that I want
2 to ask you. But first I think I want to give you a few minutes
3 to explain the sentence in the article "Bakke Reconstructed"
4 that you were just asked about.
5 A Okay. Well, I'm glad you did because as I've said before
6 taking one sentence out of even a fairly short article can
7 distort the meaning of the article. This article was written
8 when I was teaching at City College in the City University of
9 New York which had just instituted a policy of opened
10 admissions, quite different than the affirmative action program
11 we're talking about here policy, and quite different from what
12 we've heard at the University of California. Basically any
13 high school students who graduated in New York City was
14 guaranteed admission into the City University at that time.
15 This led to a flood of new students both Black and White and
16 others who were the first in their families to go to college.
17 And I was teaching history there, and the point of this article
18 was how our class discussed a class which was very diversed
19 including many non white students and many members of New York
20 City ethnic groups, Italians, Americans, Jews, Irish-Americans,
21 et cetera, how we discussed the Bakke case and why white
22 students and black students seemed to have very different
23 responses to affirmative action.
24 The second sentence that the gentleman didn't read
25 that comes right before this is, "Less I be misunderstood I
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1 personally find the arguments for affirmative action
2 compelling at least as a temporary expedience." Although as
3 I've said "temporary" for a historian may mean a long time to
4 most people. But it was really an article about that debate
5 and how white students felt that they were also -- these were
6 poor students. I mean, these were the lower-class students,
7 both black and white, how they were suffering from
8 disadvantage, and how black students talked about the
9 particular extreme discrimination that their group had
10 suffered over the course of American history. And I basically
11 contrast it over admissions that sort of let all these groups
12 in and just expanded the number of places -- I mean, it
13 tripled or quadrupled the size of the college causing
14 tremendous problems too. And the case of the Bakke case which
15 is not what we're talking about today where they set aside
16 sixteen slots were created at the medical school in California
17 for non whites. They had a quota system so to speak. So
18 basically it was really a discussion of the debate in my
19 classroom and how white -- in a sense it actually reinforces
20 the basic point I was making today, the difference perceptions
21 you get in a classroom when you put white, significant numbers
22 of black and non -- white and non black students together. And
23 how their different histories contribute to different social
24 attitudes. And the underlying point really what everyone
25 things of affirmative action is that was a wonderful
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1 educational experience. I mean, that was a great class
2 because you had enough people of different background that
3 they could honesty and candidly engage each other. If you
4 just had one or two token non whites in there as the City
5 University already did before open admissions you would never
6 have gotten this kind of intense debate with -- really, people
7 are giving views that they know, other people just don't like
8 but in a scholarly way. There were no fist fights or insults
9 or anything. So that's -- I don't want to get into this
10 article. It was twenty-three years ago, but the point is it
11 was an attempt to explain a classroom discussion about
12 affirmative action in the wake of the Bakke case in 1978.
13 Q But all of this is also an example of one of the things
14 you said at the very beginning which is just to stick with
15 white and black for a second, that white Americans view these
16 issues, freedom, equity, differently than black Americans, very
17 differently.
18 A Right.
19 Q And that there is even a misunderstanding of that
20 difference of view point.
21 A Right.
22 Q Okay. One of the most famous Black scholars, the most
23 famous quotations from W. B. Debois, the one that most people
24 that know anything about him know is "The problem of the 20th
25 Century is the problem of the color line." In fact, the
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1 problem of the 19th Century was the problem of the color line;
2 wasn't it, and the problem of the 20th Century and here we are
3 in the 21st Century and it's still the problem.
4 A Yes, and the 18th and the 17th centuries, too. This is
5 our deepest problem as a society. That's not a secret I don't
6 think. There are many people of good will who recognize that
7 and want to try to solve it, but it has such deep roots in our
8 history that it has proven to be very intractable. That doesn't
9 mean it can't be solved, but it seems like it's going to take a
10 long time.
11 Q You were asked some questions about the Civil War and
12 Reconstruction and about the fact that abolitionist movement
13 cause there to be an intergraded movement. And that in the
14 Civil War some white people changed their view of some these
15 fundamental issues. I want to just focus on what didn't happen
16 then because I think project backward and think that it looked
17 like just it does today. Here we are, 1860, 1870, almost
18 complete and total different residential situations, slavery,
19 segregation but almost no intergraded living situations; is
20 that right?
21 A Not entirely actually. I think our society is more
22 segregated today than it was then. I think slavery actually
23 threw black and white into contact with each other inevitably.
24 Not in an equal contact obviously. But you couldn't segregate
25 slaves away from their masters. That would be highly
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1 counter-productive and perhaps dangerous from the point of view
2 of the masters. As many Southern cities were actually poorer
3 people lived near each other. The residential segregation, the
4 rigid segregation that we have in our society today is really a
5 product of the late 19th and then the 20th centuries. It has
6 been reinforced throughout the 20th Century by private action,
7 action of bankers, action of real estate agents, action of
8 federal government. So -- I don't want to get into a -- but
9 segregation is worse today than it was then.
10 Q Actually this is the point I'm getting at: That the
11 things we think about as being fixed, aren't fixed. And the
12 things that we project backwards you have to really check them
13 and that's why we have to have historians. Segregation has
14 become quite rigid, but it's rigid nature in northern cities is
15 in fact post Civil War, actually Jim Crow and post
16 Reconstruction, and it's quite rigid. One of the things that
17 Professor Allen said yesterday was that we don't have a lot of
18 opportunities for interracial contact. He said work is one, but
19 it doesn't happen as much as we like. And higher education is
20 another. If we go back, those opportunities for interracial
21 contact say a hundred years ago, did they exist at all?
22 A Well, maybe a hundred and fifty years. I think in the
23 Reconstruction period there was a lot more possibility for
24 interracial contact than there would be later. I mean, maybe
25 today there is again as you said in higher education, at work
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1 places, although my experience is that even then people at work
2 places tend to separate when they go home. They don't tend to
3 socialize nearly as much with people of different races. Even
4 at colleges we know there's a problem where sometimes people
5 segregate themselves at lunch tables and things like that. But
6 the opportunities for interracial contact are plentiful in some
7 aspects of our society. But I guess what you're driving at,
8 certainly in those two key areas of residence and public
9 schools, K-12, they are very, very limited. Maybe more limited
10 than they were in certain parts in our past.
11 Q And if that's the case then there really is an
12 opportunity that is presented in higher education to sort of
13 fill a gap that has now been created with respect to those
14 opportunities. And as a historical matter I guess I'm asking
15 if I have that right that, in fact, the opportunities
16 historically for the interracial contact which may be quite
17 necessary to have any permanent change in relationship and
18 understanding that those opportunities now may be more
19 concentrated in higher education than they ever have been in
20 the past.
21 A Yes, and also, of course, remember that higher education
22 plays a far greater role in our society than it ever did until
23 the last generation. There are more students today than there
24 are steel workers, or auto workers, or people working in
25 McDonalds. I mean the student population is an immense part of
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1 our society. So this is a great opportunity in a -- that the
2 time of the Civil War higher education was a tiny part of --
3 the number of college educated people was miniscule at that
4 time. Today it's millions and millions of people. So this offer
5 us an opportunity. It's a big play arena for possibilities of
6 interracial contact. It's not just a side issue. So I would
7 agree with you to just emphasize how a major a place higher
8 education -- a role it does play in our society today.
9 Q You said in your direct testimony that we become wary of
10 race or we became wary of race in Reconstruction. It's almost
11 always the case that we become wary of race; isn't it? I mean
12 it's something that's always with and we try to deny it as
13 often as it's with us.
14 A Well, I guess that means who is the "we"? Unfortunately,
15 non white people cannot become wary of race because it is part
16 of their life all the time and they can't -- it cannot be
17 denied. But I think many white people even -- people who are
18 perfectly good will do get wary. They do not want to have this
19 issue constantly confronting society.
20 Q Isn't this just another example of how that different
21 perspective plays itself out? You said on your direct
22 something like a lot of white people, most white people don't
23 think that race is still a problem. Doesn't that just mean
24 that it's not a problem for them?
25 A It's obviously not a problem for them, but I think it
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1 also just means that they perhaps have not given enough thought
2 and study to this history and also the current social realities
3 of our society.
4 Q Right. And --
5 THE COURT: Just a couple more.
6 BY MR. PAYTON:
7 Q And just to sort of fill out that point which is we often
8 talk using the terms that I was using in those last two
9 questions about us, our society, we, how things are going, and
10 as I hear your testimony that vocabulary itself is creating
11 some of the problems because there is no we, there is no our
12 society, you have to look at it from the different prospectives
13 of each racial group to really understand how they see
14 themselves, the society, other groups, freedom, this country;
15 is that fair?
16 A Yes, I wouldn't go quite so far to say there is no "we"
17 at all. There is an American "we" and people of all races do
18 share certain things, certain experiences, certain backgrounds,
19 but as soon you start talking about "we" and generalizing about
20 Americans, you immediately have to then start subdividing it
21 into different historical experiences within that overall unit.
22 MR. PAYTON: Thank you, very much.
23 THE COURT: Okay.
24 MR. RICHTER: Your Honor, I don't have anything for
25 recross but since we've admitted Professor Foner's report and
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1 since I've been accuse of taking statements out of context, I
2 would like to move --
3 THE COURT: Any objection to the article?
4 MR. PAYTON: No.
5 THE COURT: Okay. Thank you, very much, Professor.
6 We appreciate it. Hope we haven't missed up your schedule too
7 much.
8 THE WITNESS: Not at all.
9 THE COURT: We'll stand in recess until tomorrow
10 morning.
11 (Proceedings adjourned, 5:10 p.m.)
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2 CERTIFICATE
3 I, JOAN L.MORGAN, Official Court Reporter for the United
4 States District Court for the Eastern District of Michigan,
5 appointed pursuant to the provisions of Title 28, United States
6 Code, Section 753, do hereby certify that the foregoing
7 proceedings were had in the within entitled and numbered
8 cause of the date hereinbefore set forth; and I do further
9 certify that the foregoing transcript has been prepared by me
10 or under my direction.
11
12 ____________________
JOAN L. MORGAN, CSR
13 Offical Court Reporter
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