1 1 UNITED STATES DISTRICT COURT 2 FOR THE EASTERN DISTRICT OF MICHIGAN 3 SOUTHERN DIVISION 4 5 BARBARA GRUTTER, 6 For herself and all others 7 Similarly situated -- 8 Plaintiff, 9 -v- Case Number: 97-CV-75928 10 LEE BOLLINGER, JEFFREY LEHMAN, 11 DENNIS SHIELDS, and REGENTS OF 12 THE UNIVERSITY OF MICHIGAN, 13 Defendants, 14 And 15 KIMBERLY JAMES, et al., 16 Intervening Defendants. 17 ------------------------------------/ VOLUME 10 18 BENCH TRIAL 19 BEFORE THE HONORABLE BERNARD A. FRIEDMAN 20 United States District Judge 21 238 U.S. Courthouse & Federal Building 22 231 Lafayette Boulevard West 23 Detroit, Michigan 24 THURSDAY, FEBRUARY 8, 2001 25 2 1 APPEARANCES: 2 3 FOR PLAINTIFF: Kirk O. Kolbo, Esq. 4 R. Lawrence Purdy, Esq. 5 6 FOR DEFENDANTS: John Payton, Esq. 7 Craig Goldblatt, Esq. 8 On behalf of Defendants. 9 10 George B. Washington, Esq. 11 Miranda K.S. Massie, Esq. 12 On behalf of Intervening Defendants. 13 14 COURT REPORTER: Joan L. Morgan, CSR 15 Official Court Reporter 16 17 18 19 20 21 22 23 24 25 3 1 I N D E X 2 3 WITNESS: PAGE: 4 WALTER ALLEN 5 Cross Examination by Mr. Kolbo 5 6 Re-Direct Examination by Ms. Massie 110 7 8 EUGENE GARCIA 9 Direct Examination by Mr. Washington 125 10 [...] 21 THE WITNESS: I think so. 22 E U G E N E G A R C I A, 23 having been called as a witness herein, and after having 24 been first duly sworn to tell the truth, the whole truth 25 and nothing but the truth was examined and testified. 125 1 DIRECT EXAMINATION 2 BY MR. WASHINGTON: 3 Q Sir, would you state your name and your business 4 address for the record, please? 5 A Yes. My name is Eugene E. Garcia. I'm at the 6 University of California-Berkley. I'm Dean of the Graduate 7 School of Education there. 8 Q And Dr. Garcia, before you became Dean of the Graduate 9 School of Education at the University of California, can you 10 tell us where you grew up? 11 A Yes, I grew up in the southwestern part of the United 12 States, around Four Corners area, specifically, in the area 13 of the western slope of Colorado, small town of Fruita, 14 actually, which is close to a larger town of Grand Junction, 15 Colorado. 16 Q And what did your parents do, sir? 17 A They were farm workers, we were migrant workers and 18 share croppers. 19 Q And what is your native language? 20 A Spanish is my native language. 21 Q Did you go to high school in that area, Four Corners? 22 A Yes, I did. 23 Q And where was that? 24 A That was in Grand Junction, Grand Junction High 25 School. 126 1 Q Did you have occasion while you were in high school 2 to take an SAT test? 3 A I remember it very well, yes, I do. 4 Q And I won't ask you what you got, but did anybody talk 5 to you afterwards and give you any kind of counseling about 6 what it all meant? 7 A Sure. Those of us who were considering going on to 8 college were asked to take the SAT. My baseball coach is 9 the one that actually suggested I do that, because I was 10 looking at a baseball scholarship, and the counselor, 11 therefore, called all the individual students one by one 12 to indicate to them how they had done. 13 So you may remember your own SAT scores, they are in 14 percentile ranks, they give you these, and as a high school 15 senior, at least many of my colleagues and I could not 16 understand what all these numbers meant, and so I did have 17 a discussion with him right after that score came. 18 Q And did he give you some advice as to what your 19 prospects were? 20 A Well, he told me I didn't do very well, but said that 21 was okay, but one comment he made very directly was, in a 22 very supportive way, is that, he said, you'll never be a 23 college professor. 24 THE COURT: No comment? 25 THE WITNESS: No comment. 127 1 THE COURT: We had a discussion about who becomes 2 different things. 3 THE WITNESS: And I didn't -- by the way, I didn't 4 ever think I would be a college professor, so. 5 BY MR. WASHINGTON: 6 Q What have you done for the last 28 years of your life? 7 A Most of the early time, of course, after high school 8 was spent at a community college, then to a four-year 9 university, on to graduate school, and then the last 10 26 years in the -- in higher education with some time in 11 the Federal Government. 12 Q And for the 26 years have you been a college 13 professor? 14 A I have. 15 Q And during the course of that 26 years, have you had 16 occasion to return to the SAT test? 17 A I have on several occasions, correct. 18 Q You have published books on the SAT? 19 A I have, on the SAT, commentary on the SAT, yes, 20 correct. 21 Q Let me back up a little bit. 22 A Sure. 23 Q You said -- if you would give us just a review of your 24 education, sir. 25 A Sure. I again went to community college, off to the 128 1 University of Utah, where I graduated with a Bachelors in 2 Psychology, and off to a doctoral program at the University 3 of Kansas, a degree in human development and psychology. 4 Q And when did you take your PhD? 5 A When? 6 Q Yes. 7 A 1972. 8 Q And did you then do post-doctoral work? 9 A Yes, I did post-doctoral work at Harvard University. 10 Q And in what field did you do post-doctoral work? 11 A Child development. 12 Q And did you become -- did you then go do any research 13 for the National Research Council? 14 A Yes. I was a post-doctoral fellow that was funded 15 thereafter to do work in the areas of language development 16 and academic achievement. 17 Q And did you receive other post-doctoral fellowships? 18 A Yes. I also received a post-doctoral fellowship from 19 the Kellogg Foundation, a leadership foundation program that 20 tried to provide support for, broadly, looking at issues of 21 education, social development, et cetera. 22 Q And where did you begin your career as a college 23 professor? 24 A Back at the University of Utah, where I had received 25 my BA. 129 1 Q And what year did you begin as a college professor? 2 A 1972. 3 Q And in what department did you enter the University of 4 Utah? 5 A Department of Psychology. 6 Q And after the University of Utah, did you go work at 7 another college? 8 A Yes, I have been at the university -- then from Utah I 9 went to University of California-Santa Barbara. 10 Q And were you a chair of any departments there? 11 A I was the Chair of the Chicano Studies Department 12 there. 13 Q And from Santa Barbara, where did you then go? 14 A I went to Arizona State University. 15 Q And how long were you at Arizona State University? 16 A Approximately seven years. 17 Q And what was your position there? 18 A I was the Director of a research center, Bilingual 19 Education Research Center. 20 Q Did you then move back to the University of 21 California? 22 A Yes, I then returned to the University of California 23 Santa Cruz. 24 Q In what position? 25 A As Chair of the Education Department at Santa Cruz. 130 1 Q And how long were you at Santa Cruz? 2 A I was at Santa Cruz about eight years. 3 Q And did you have, then, occasion to work for the 4 United States Government? 5 A Yes. I went to work in the early days of the Clinton 6 Administration as an Assistant Secretary Director in the 7 Office of -- Department of Education. 8 Q And what particular office were you working in? 9 A I was the Director of the Office of Bilingual 10 Education and Minority Language Affairs. 11 Q And how long did you work for the United States 12 Government? 13 A Just two years. 14 Q And then where did you go? 15 A And I took my present position at UC-Berkley. 16 Q And did you become immediately the Dean at the 17 University? 18 A Yes, I became the Dean. 19 Q Now, Dr. Garcia, have you had occasion to publish any 20 kinds of work on education and in particular education of 21 Latinos and under-represented minorities? 22 A Yes, quite extensively worked in the area of language, 23 culture and schooling with the focus on Latino students, 24 Mexican American students, Chicano students, et cetera. 25 Q And can you give me some examples of work you've 131 1 published? 2 A Sure. Early work in language development of children 3 who are multilingual, who come from homes in which two 4 languages are spoken, work which is -- has detailed the 5 kinds of educational achievement and educational experiences 6 of those same kinds of students as they move through the 7 school system, and then work which looks at the academic 8 achievement and relationship of academic achievement and 9 opportunities for achievement and access to higher 10 education. 11 Q And have you also studied a field called 12 psycholinguistics? 13 A Yes. My training is primarily in the area of 14 language development, child development. 15 Q Tell me what psycholinguistics mean. 16 A It's the study of the development and use of language 17 by individuals in multiple settings and how individuals 18 function to use language and acquire it to do so. 19 Q And have you had, in addition to publishing books on 20 these subjects, have you published a number of articles and 21 publications on the subject of the education of Latinos and 22 also of under-represented minorities generally? 23 A Yes, I have, quite extensively. That work, again, is 24 either large scale analyses for policy purposes, looking at 25 achievement access, et cetera, and more intensively looking 132 1 at what actually goes on in classrooms. 2 MR. WASHINGTON: Your Honor, I would offer 3 Dr. Garcia as an expert in the field of education and 4 also in the field of psycholinguistics. 5 THE COURT: Any objection? 6 MR. KOLBO: I have no objection. 7 THE COURT: He shall be qualified to testify in 8 those areas. 9 MR. WASHINGTON: Thank you very much. 10 BY MR. WASHINGTON: 11 Q Dr. Garcia, you have said you have been in the 12 University of California system for a number of different 13 spans of time. Can you describe for us what the University 14 of California is? 15 A Sure. California is really made up, through the 16 process of a master plan of higher education, made up of 17 three different institutions; community colleges, which 18 service essentially two-year educational -- or offers a 19 two-year educational arena, and then two four-year systems, 20 CalState University system and a UC system. 21 The University of California system is, in 22 California, identified as sort of the premier institution. 23 It makes eligible and attempts to educate the top twelve 24 and-a-half percent of the students of California. The 25 CSU then takes the other 40 percent, and the remainder are 133 1 encouraged to attend the community colleges. In essence, 2 California has attempted to make higher education a reality 3 for all students in California. 4 Q And the University of California, that twelve 5 and-a-half percent figure that you mentioned, where does 6 that come from? 7 A It's actually in the master plan, and the idea of the 8 top twelve and-a-half percent is to try to take a set of 9 students who have been academically successful at the 10 high school level in California, recall the specifics 11 that California is only allowed to serve ten percent 12 nonCalifornia residents, so University of California serves 13 primarily residents of California, and the intent there is 14 to take those top students and give them the very best 15 educational experience. 16 Now, the University of California constitutionally 17 and otherwise makes clear that its goal is to produce the 18 leaders for the future, leaders necessary in all domains 19 of the social fabric of California, the economics, the 20 political, the educational, the intellectual. 21 THE COURT: Just one quick question. So what you're 22 telling me that is the top twelve and-a-half percent of 23 students no matter what high school they went to? 24 THE WITNESS: Right. 25 THE COURT: No matter what neighborhood it's from or 134 1 anything else, they are, if they chose to, they are allowed 2 to go to -- 3 THE WITNESS: They become eligible. We have the 4 term, eligibility. They become eligible to come to the 5 University of California, yes. 6 THE COURT: Okay. 7 THE WITNESS: And it is a statewide eligibility. 8 THE COURT: And so assuming they want to, they are 9 guaranteed, and the next 40 percent is guaranteed, also? 10 THE WITNESS: Correct, the next 40 percent is 11 guaranteed a place in the CalState University system. 12 THE COURT: No matter? 13 THE WITNESS: Right. 14 THE COURT: And then the rest are also in the 15 community college kind of setting? 16 THE WITNESS: A community college, correct. 17 THE COURT: Even if they graduated last in their 18 class? 19 THE WITNESS: That's right. 20 THE COURT: No matter what school they went to? 21 THE WITNESS: That's right. Right. That's the 22 intent, is all students should have a chance to go on to 23 higher education. 24 THE COURT: So for instance, if -- we have heard 25 here and it's certainly a reality that lots of school 135 1 districts are segregated because that's how it happens 2 historically and so forth, so no matter what school, no 3 matter where it is, twelve and-a-half percent of those 4 students will -- 5 THE WITNESS: Not twelve and-a-half percent of those 6 students, twelve and-a-half percent in the state. So you 7 may have some high schools that may have the entire senior 8 class in the twelve and-a-half percent and some high schools 9 may have none. 10 THE COURT: I got you. That was my point. 11 THE WITNESS: And that is the problem, that we do 12 have high schools that are highly segregated serving 13 segregated students, particularly Latino students. 14 THE COURT: Right. 15 THE WITNESS: That do not have any eligibility. 16 THE COURT: So if those schools -- the top twelve 17 and-a-half percent goes in that pool of the twelve 18 and-a-half percent? 19 THE WITNESS: That's right. 20 THE COURT: So they are not guaranteed to do that. 21 THE WITNESS: No. 22 THE COURT: The only thing they are guaranteed is 23 somewhere in the twelve and-a-half, the 40, or the community 24 college? 25 THE WITNESS: That's correct, that's correct, yes. 136 1 BY MR. WASHINGTON: 2 Q Just so I understand it, the twelve and-a-half percent 3 is the statewide figure of people who are eligible -- 4 A Right. 5 Q -- to go to the University? 6 A Of high school graduates that are eligible. 7 THE COURT: I understand it's the state, not 8 schoolwide? 9 THE WITNESS: Statewide, not school by school. 10 THE COURT: There are some states that are talking 11 school by school, are there not? 12 THE WITNESS: Texas. 13 THE COURT: I ask you, because I know that in the 14 last Administration, that there was some discussion about 15 that. 16 THE WITNESS: Texas has adopted for the UT system, 17 UT Austin, UT Texas A&M, the top ten percent of students in 18 their high school. 19 THE COURT: In their high stool? 20 THE WITNESS: Context-based percentage, California 21 is statewide. 22 THE COURT: Statewide? 23 THE WITNESS: Statewide. 24 THE COURT: So the only guarantee you have, you know 25 you can go to school, but it may be a community college? 137 1 THE WITNESS: Correct, correct. 2 THE COURT: I didn't mean to interrupt. 3 MR. WASHINGTON: Sure, no problem, Judge. 4 BY MR. WASHINGTON: 5 Q Dr. Garcia, what's the difference between the 6 University of California system and the California State 7 College -- 8 A Sure. 9 Q -- and the community college system, educationally 10 speaking? 11 A The University of California offers a much more 12 diverse set of options for students. Keep in mind the 13 University of California is the only part of the system 14 that offers the doctoral degree, so they are identified as 15 research institutions, so the faculty members who are 16 appointed to serve in the University of California are 17 judged primarily on the research and scholarship 18 capabilities. 19 They also teach, and the idea here is to place 20 our very best students with our very best faculty with the 21 intent of producing the best intellectual climate, and 22 again, producing the kind of leaders that we need for the 23 future. 24 Q And can you then contrast that to the State College 25 system in California? 138 1 A The State College system is not driven by research 2 productivity or scholarship. That doesn't mean the faculty 3 there don't care about it, it's just that they are primarily 4 a teaching institution. If you can characterize both the 5 CSU and the community college as a dissemination place where 6 students can gain knowledge, well, the University of 7 California is a place where knowledge is being discovered 8 and imparted at the same time, those are the real 9 distinctions, I think. 10 Q Okay. How many campuses does the University of 11 California have? 12 A The University of California has eight campuses that 13 serve undergraduates, and then a ninth campus, that's a 14 health science center, medical school. 15 Q And now you have -- we have heard a lot of talk about 16 two of those campuses, Berkley and UCLA? 17 A Uh-huh. 18 Q Tell us the other campuses in the University of 19 California system. 20 A Sure. They are -- most of them run down the coast, so 21 they are Davis, Berkley, UCLA, San Diego, Santa Barbara and 22 Santa Cruz, and I think that finishes them off. 23 MR. PAYTON: Riverside. 24 THE WITNESS: Riverside, sorry. And we have a new 25 one scheduled to come on board, Merced, in the central 139 1 valley. 2 BY MR. WASHINGTON: 3 Q Dr. Garcia, you mentioned the basic plan for the 4 University of California. Is there -- is it charged in some 5 way to provide education for the entire State of California? 6 A It is. Constitutionally, it was given the charge 7 of educating all students in California. 8 Q And does the constitution speak in terms of 9 representation? 10 A Yes, it does, specifically, right. 11 Q Can you tell me what in general the charge of the 12 University of California was? 13 A The charge is to make sure that the University of 14 California in fact does serve all the citizens of the State 15 and the children of those citizens, and is intended to be 16 inclusive. The Board of Regents have reaffied that position 17 on several occasions throughout the several hundred years, 18 the couple, 125 years or so of the University's existence. 19 Q So the University of California is supposed to 20 represent the people of the State of California? 21 A Correct, correct. 22 Q We have heard a lot of talk about it. Can you tell 23 us, just break down for us the racial and ethnic background 24 of the people of the State of California today? 25 A Sure, sure. I think we passed the magic point about 140 1 three months ago, my demographer colleagues told me, in 2 which California has actually become overall a minority/ 3 majority state; that is, there are no majority in California 4 in terms of ethnic, racial or typical ways of identifying 5 groups in the state and in the nation. 6 In the K twelve sector, we have become a minority/ 7 majority K twelve sector about seven years ago, in which, 8 again, within the public school system there is no one 9 group of students that serve as a majority. 10 The fastest growing population in California is 11 the Latino population. That population is growing at 12 approximately five to six percent per year, and again, if 13 we do the projections, probably in somewhere around 2015 we 14 will likely be a state in which the K twelve public schools 15 will be predominantly Latino. 16 THE COURT: Define Latino for me. 17 THE WITNESS: Sure. We define it primarily by 18 asking individuals what they want to be called, so in 19 California, in 1992, there was a statewide study in which 20 randomly selected individuals who had identified themselves 21 as either Hispanic, Spanish surname or other Latin 22 background in the State of California and essentially 23 asked them what they would like to be called. 24 They most -- 60 percent of them identified 25 themselves as Latino, the next category was Mexican 141 1 American, then Chicano, and then down the line. So when 2 we refer to Latino population, we're referring to a group or 3 a set of population that had been identified either by the 4 U.S. Census as a Hispanic American, Mexican American, 5 et cetera, but I use the term Latino as one that in fact 6 individuals who come from those categories as a majority 7 feel is a term that identifies them. 8 THE COURT: But it includes all of them? 9 THE WITNESS: It includes all of them, right. 10 THE COURT: All right. Thanks. 11 BY MR. WASHINGTON: 12 Q And Dr. Garcia, as I understand it, at this point the 13 white population of California is less than 50 percent of 14 the population as of today? 15 A That's correct. 16 Q And now, how has that been reflected -- and let's go 17 before 209. Well, actually, let me back up. 18 You mentioned eligibility for the University of 19 California system? 20 A Correct, right. 21 Q What does it mean to be eligible for the University of 22 California? 23 A Very specifically, there are several ways to be 24 eligible. The predominant way is to actually take the 25 required courses in the high schools that one is attending, 142 1 and those courses are prescribed by the University of 2 California. There are so many units in mathematics, so many 3 units in social studies, so many units in science, foreign 4 language, two years of a foreign language, et cetera. 5 So in order to become eligible, you must at least 6 have taken those courses as identified by your high school 7 as approved by the University of California. 8 The second indicator or qualifier of eligibility is 9 a 3.2 grade point average in those courses, so that if you 10 have taken those courses and have obtained a 3.2, then you 11 become eligible, you become part of that twelve and-a-half 12 percent. 13 How do we know that's part of the twelve and-a-half 14 percent? We do studies about every five to six years, 15 looking at what we need to do to identify the top twelve 16 and-a-half percent and we have come to this set of 17 indicators. A 3.2 grade point average in those classes 18 will roughly identify twelve and-a-half percent of the 19 high school graduates. 20 Q Dr. Garcia, before 209, can you tell me of the various 21 ethnic and racial minorities in California, were twelve 22 and-a-half percent of all of those various populations 23 eligible for admission to the University of California? 24 A No. Approximately three percent of Latino students 25 were eligible to the University of California, 3.8 percent 143 1 or close to that amount, and blacks, too, about 3.2 percent, 2 so even though -- as a matter of fact, larger portions of 3 the K twelve population and of high school graduates, they 4 didn't come close to the twelve and-a-half percent. 5 Q So as I understand it, even before 209, only about 6 three percent of the Latinos who were graduating from high 7 school were even eligible -- 8 A That's correct. 9 Q -- at the University of California? 10 A That's correct. 11 Q And, I think you said, the figure was 3.8 percent for 12 black students? 13 A No, 3.8 for Latinos, 3.2 for African Americans. 14 Q Now, once you become eligible to go to the University 15 of California, what do you have to do to get into the 16 University of California? 17 A You must, of course, fill out the forty-page 18 application, like anyone else. 19 Q Forty pages? 20 A Forty pages. 21 THE COURT: Forty pages? 22 THE WITNESS: It's very complex. Let me put it this 23 way: Even the Board of Regents wonders how anybody is able 24 to fill out the application. 25 But put simply, you have to apply, and you're 144 1 allowed to apply to three campuses, and you must essentially 2 put forward the paper work for application. 3 BY MR. WASHINGTON: 4 Q And of the campuses of the University of California, 5 is there any differentiation between them in terms of the 6 educational programs and quality and so forth that they 7 offer? 8 A Many colleagues -- of course, I taught at three of 9 them, at Santa Barbara and Santa Cruz and at Berkley, and 10 I can only say that amongst the students and families 11 of California, there are very competitive and selective 12 universities. Those three now are Berkley, UCLA and 13 San Diego. And when I mean selective, I mean that very 14 large numbers of students are turned away even after they 15 fill out the application and even though they may be 16 eligible, they are not admitted to those institutions. 17 Q And in addition to being selective, would it be fair 18 to say that the University of California at Berkley and UCLA 19 are world renowned as educational institutions? 20 A Yes, yes, they are. 21 Q And have a number of Nobel Prize winners? 22 A All the indicators, scholarly, publications, 23 citations, the kind of things that us academics worry 24 about, yes. 25 Q And how did -- I still want to stick on the before-209 145 1 period. How did one go about applying to University of 2 California at Berkley or the University of California at 3 Los Angeles? 4 A One could identify three campuses in the application 5 and you would list your preference, one, two, three, and 6 most students would essentially go right on down the line, 7 Berkley, UCLA, San Diego, for preferential or selective 8 activity. 9 Q And what were the criteria for selection prior to 209? 10 A We used race, we used affirmative action as one 11 factor. Keep in mind that the students still needed to be 12 eligible. They met the eligibility requirements, so they 13 were in the top twelve and-a-half percent. 14 In addition to that, they used SAT's and GPA's, in 15 some cases, very formulaic, to determine admissions, so in 16 some campuses up to 75 percent of the class was admitted on 17 a formulaic basis, including indices developed by using high 18 school GPA and SAT scores, SAT1's. 19 Q As used by the selective campuses at the University of 20 California, was there any kind of discriminatory impact 21 caused by the use of the GPA's? 22 A Ask that a different way. I'm not sure I got it. 23 Q What effect did the use of the GPA's have on the 24 eligibility -- or I'm sorry, the admissions -- 25 A Admissions? 146 1 Q -- admissions for Latino and black students in 2 particular? 3 A Then, as today, access to courses first that are 4 college level and acceptable courses at UC are differently 5 distributed amongst high schools. We find Latino students 6 in particular and African American students, as well, are in 7 those high schools where there are less of those courses, so 8 their GPA with regard to those courses could, in fact, be 9 affected because of access to those courses, so both their 10 eligibility and their admissions could be affected. 11 Secondly, the GPA is allowed to float above a 4.0, 12 an A equaling 4.0, because honors courses and AP courses 13 are given up to 4.8 in grade level, so that a student taking 14 many, many AP courses or many honors courses could, in fact, 15 have an inflated -- what we're going to call a floated, 16 floating grade point average. 17 If you happen to be in a school in which there were 18 no AP courses, or had limited access to them, or where there 19 were limited numbers of honors courses, then you -- 20 essentially, GPA could have a tremendous effect in a 21 decision that might be made with regard to your admissions. 22 Q Were the honors courses equally distributed between 23 schools which were white and schools which were Latino and 24 schools which were black? 25 A No. Our empirical work in the early '90's and then 147 1 into the mid '90's indicated that what we called the A to E 2 courses, the required courses, were not distributed equally, 3 honors courses were not distributed equally, nor were AP 4 courses. Honors and AP were significantly not available in 5 those places where we had highly segregated high schools, 6 particularly serving Latino students. 7 THE COURT: California has a similar system, I 8 suspect, as we do, where there are school districts that 9 have certain boundaries and they are independent school 10 districts and taxed independently and run their school 11 districts. 12 THE WITNESS: That's correct, yes. 13 THE COURT: Can I just ask one more question? 14 MR. WASHINGTON: Sure. 15 THE COURT: Are you aware of any state that has a 16 statewide school district where it's run by the state and 17 that the money is distributed equally to all schools and 18 teachers are under the state control and can be transferred 19 to schools where they are needed and that they have the same 20 curriculums, is there any state that does that? 21 THE WITNESS: I'm not aware of that. One of the 22 things I failed to mention is I was a school board member 23 once, and you'll remember many school board members are 24 locally elected and they are not in favor of state systems. 25 THE COURT: Oh, I know that. 148 1 THE WITNESS: No, I do not know. I do not know 2 the system. 3 THE COURT: So each one as it's here has their 4 funding and everything else -- 5 THE WITNESS: And priorities and so forth. 6 THE COURT: -- and has their priorities, and a 7 school board that runs it in the manner they believe is -- 8 THE WITNESS: That's correct. 9 THE COURT: Okay. What do you think of that 10 concept? 11 THE WITNESS: As a school, ex-school board member, I 12 think school -- 13 THE COURT: No, as an educator. 14 THE WITNESS: As an educator, I think you probably 15 need a mix of state and local and federal assistance, so I 16 would argue -- remember, I also worked for the Feds -- so I 17 would think that what we need to do is look at it as all one 18 system rather than local, state or federal, and provide 19 resources as we best can across those different identifiers 20 or barriers or political units. Actually, political units. 21 THE COURT: But also not only resources, but also 22 curriculum, what you're saying to me? 23 THE WITNESS: Yes. 24 THE COURT: I'm also hearing what you're saying 25 to me is that in certain areas, that they don't have the 149 1 curriculum that they need in order to even become eligible? 2 THE WITNESS: That's correct. They don't have the 3 curriculum, right. 4 THE COURT: So if there was a state curriculum, and 5 funding, of course -- 6 THE WITNESS: Yes. 7 THE COURT: -- tell me your position, what you think 8 about being a former school board member, where do you see 9 the local control? 10 THE WITNESS: Sure. I think it's the -- it's having 11 the diversity to implement a set of curriculum that you 12 think is best suited for the students that you serve, but 13 still reaching the standards, the high standards. So this 14 is why we have now state standards in most states, which are 15 informed by national discussions, about what science ought 16 to look like at third grade, but states will adopt those 17 standards. The local district, I think, their job is to 18 move students to those standards. How they do that, I 19 think, is a local decision. 20 THE COURT: So the ideal system, and I'm not -- 21 perhaps it could be a state system that deals with funding, 22 fair funding throughout the whole thing, so everybody at 23 least has some equality of funding, curriculum, and then 24 leading to the standards and -- 25 THE WITNESS: And I would say I would add one more 150 1 thing, because my own work and that of my colleagues would 2 suggest that you need to have people to implement those. 3 You need good teachers. 4 One of the greatest problems we have in these 5 segregated schools serving Latinos is many of the teachers 6 are not trained, so we're using what we call in California 7 emergency credentials, which means they have no training 8 in teaching, and so -- but they have responsibility for 9 instructing students. So you need the professional. 10 THE COURT: You need the professionals? 11 THE WITNESS: The personnel. 12 THE COURT: So if you had those on a state level and 13 then you had the local level where they have the input in 14 terms of that particular -- 15 THE WITNESS: Specifics. 16 THE COURT: -- specifics, what do you think of the 17 concept of teachers maybe being state employees where they 18 can be transferred pretty much like district judges here in 19 the state? You know, we're all not necessarily just in the 20 Federal Court, but the State Court, they're all State 21 employees, and if they need somebody, they just transfer 22 them. You're sitting in, you know, Muskegon next week. 23 THE WITNESS: Right, right. 24 THE COURT: Same thing with teachers, teachers who 25 are perhaps, you know, under state control. 151 1 THE WITNESS: Sure. 2 THE COURT: And therefore, if one district needs 3 extra help on whatever the subject happens to be and they 4 don't have the resources, for lots of reasons, a part of it 5 could be geographics and, you know, and all those things, 6 that the State has the ability to transfer that person, 7 within reason, over there. 8 THE WITNESS: Yeah. 9 THE COURT: Are those kinds of things, you think, 10 workable? 11 THE WITNESS: I don't know if the state system -- 12 just districts certainly have that prerogative now and 13 have trouble doing it. For instance, large districts like 14 Los Angeles, which is huge, 700,000 students, and a large 15 geographical region, has difficulty in transferring these 16 kinds of teachers, because mainly they are professionals and 17 so they will leave if they don't like their job assignment. 18 THE COURT: But if you have a state system, they 19 can't leave unless they leave the state, if they want to 20 continue with their profession. 21 THE WITNESS: Yes. 22 THE COURT: But the real point, I think, part of it 23 is the bidding process? 24 THE WITNESS: It's all that, yeah. It's who you get 25 into the profession, how they are trained. So there are 152 1 certainly alternative ways. 2 And you could make sure, if you don't have the 3 professionals, then get them the kinds of resources they 4 need to become the kind of professional that they need to 5 be, and that's really what most districts are doing now. 6 THE COURT: It's difficult for a single district to 7 do that. 8 THE WITNESS: It is, of course. 9 THE COURT: Especially a single district that 10 doesn't have a lot of resources. 11 THE WITNESS: That's right. No, I agree with you. 12 I agree with you. 13 THE COURT I'm sorry. 14 MR. WASHINGTON: No, that's fine. 15 BY MR. WASHINGTON: 16 Q Dr. Garcia, could you describe for us what the 17 California K through twelve educational system is now? 18 A Right now, you might want to call it a little bit 19 in crisis, and the reason it's in crisis is that so many 20 students are not achieving to the standards that we have 21 identified in California. 22 If you look at our financial investment in 23 California, we have -- in the 1950's to 1960's we were 24 ranked amongst the highest in the United States in 25 investments in education. Now I think we're probably in 153 1 the lowest decile in terms of investments in education, 2 and that's expenditures per student. 3 So if you look at our educational system, we have 4 essentially not invested in it, and it has shown in the 5 number of students, and it has -- it has gone from, in about 6 twenty years, from about two and-a-half million to five 7 million, so it's doubled in that period of time. 8 We have not kept up with the kinds of resources, 9 and most importantly, it is a very -- a system that's in 10 equilibrium; that is, some schools are very, very good, 11 and some schools are very, very not good, and we have the 12 continuum. 13 Relevant to the situation that we're discussing here 14 is that many of the schools that fall in that lower decile 15 or quintile in terms of resources, achievement, et cetera, 16 are also highly segregated with Latino and African American 17 students, and are also underresourced in terms of 18 expenditures per student. 19 Q You have mentioned some of the things that it means to 20 be underresourced. Can you tell me more about what that 21 means? 22 A Sure. I think the most critical one is the one I 23 raised earlier, and that is, do you have the right personnel 24 that is, in fact, engaged in the instruction of students, 25 and until we change the way schools are organized, teachers 154 1 are the most critical element in the education of a student, 2 particularly in the public sector, and particularly for 3 poor kids, and Latino kids, the population I have studied 4 extensively. The teacher makes a difference. 5 So when I say underresourced, in many cases I don't 6 necessarily mean the amount of dollars, I'm really talking 7 about the kind of individuals. In our schools in California 8 it is not unusual for a student, a third grader, for 9 instance, who is Latino, about 50 percent of those kids will 10 have a teacher who is not credentialed, has not been trained 11 as a teacher, and is in almost every term unqualified to be 12 in the classroom. 13 In addition to that, of course, is the opportunities 14 for curriculum in our schools. It's very likely that that 15 same third grade Latino student will not have access to the 16 kind of curriculum that they need, textbooks, the kinds of 17 science laboratories, kinds of experiences that are provided 18 in some of the better schools. 19 I think lastly, I would say it is the overall tenor 20 of the place where the school is that usually, and in very 21 impoverished locales, urban sectors or rural sectors, 22 for Latinos, tend to be economically depressed, high in 23 unemployment rates, high in incarceration rates, and all 24 these things, I think, would characterize the environment 25 of a Latino student in California. 155 1 Q And if you know, what is the graduation rate for 2 Latino students in California, high school graduation rate? 3 A We have now -- depending on how you measure it, but 4 if you look at it longitudinally over a period of time that 5 the student is actually in school, we're probably losing 6 about 40 percent of students who begin in the K through 7 twelve sector, but never finish, so we're completing about 8 60 percent of Latino students. 9 Q Now, Dr. Garcia, could you describe for a moment the 10 situation for black students in the State of California and 11 K through twelve? 12 A Very similar picture. Highly segregated schools, 13 similar kinds of neighborhoods. In some cases, where 14 the neighborhoods are transitioning from highly black 15 concentrated populations to Latino populations coming in, 16 Oakland is a good example, right close to Berkley, but 17 in any case, you have similar kind of community and 18 socioeconomic circumstances, along with the highly 19 segregated situation. 20 Q Do you -- would it be fair to characterize the 21 California K through twelve system, in general, as separate 22 and unequal systems? 23 A I think many people have characterized it that way. 24 I would at least be willing to do so, yes. 25 THE COURT: Is this a good segue to lunch? 156 1 MR. WASHINGTON: That would be fine, yes. 2 THE COURT: We will stand in recess until 2:15. 3 (Luncheon recess taken at 1:00 p.m.) 4 -- --- -- 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 157 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. BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 158 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 BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 159 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. BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 160 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 BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 161 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 BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 162 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 BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 163 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 BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 164 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, BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 165 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 BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 166 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 BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 167 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 BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 168 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, BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 169 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. BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 170 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. BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 171 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 -- BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 172 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 BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 173 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 BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 174 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 BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 175 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 BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 176 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 BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 177 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 BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 178 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 BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 179 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 BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 180 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. BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 181 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 BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 182 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 BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 183 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 BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 184 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? BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 185 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. BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 186 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 BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 187 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 BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 188 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 BENCH TRIAL - VOLUME 10 THURSDAY, FEBRUARY 8, 2001 189 1 Foner. [...] BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 15 [...] 11 DIRECT EXAMINATION (CONTINUING): 12 BY MR. WASHINGTON: 13 Q Dean Garcia, yesterday before, as we were concluding I 14 think we were talking about what 209 has meant in the state of 15 California what the end of affirmative action has meant. Do you 16 have in front of you exhibits 213, 14, and 15? 17 A Yes, I do. 18 Q I'd like if you could to turn to those, and as the Dean 19 of the Education School at Berkeley, I think we've gone through 20 what had happened at the University of California at Berkeley 21 after the end of affirmative action. I'd like to go for a 22 moment to the University -- the other -- one of the other 23 nationally famous campuses of the University of California, 24 that being UCLA. If you could, could you turn to Exhibit 214, 25 and tell us in 1995, when you were using affirmative action at GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 16 1 UCLA, how many black students were admitted and enrolled in the 2 freshman class at the UCLA School in Los Angeles? 3 A In 1995, it was two hundred and fifty-nine. 4 Q And that was out of a total class of three thousand five 5 hundred? 6 A That's correct. 7 Q And if you would, five years later, after the end of 8 affirmative action, how many black students total were there in 9 the entering class at the UCLA? 10 A A hundred and forty-seven. 11 Q And on Native Americans, how many students were there at 12 UCLA prior -- when you were using affirmative action? 13 A Forty-two. 14 Q And what did that drop to after the end of affirmative 15 action? 16 A Twelve. 17 Q Twelve in the entire entering class? 18 A In the entering freshman class. 19 Q Incidentally, you mentioned -- how large is the Native 20 American population in the state of California? 21 A It's quite substantive in California. Although we don't 22 have a large number of formal reservations as might be the case 23 in New Mexico and Arizona we do have a fairly large population 24 of Native Americans that are in our urban suburban areas. 25 Q With regard to Chicano students, the city of Los Angeles GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 17 1 as I recall the metropolitan area is now something like ten, 2 twelve, fourteen million people? 3 A Correct. 4 Q What -- just roughly, what percentage of those people in 5 the city of Los Angeles area are Latino? 6 A In the city and let me explain it to the counties since 7 they're a little bit larger, about sixty-five percent of the 8 population of LA County is now Latino. 9 Q So we're looking at maybe eight million or so Latinos? 10 A Correct. 11 Q And you mentioned that there were a hundred thousand -- 12 eighty thousand graduates of high school, Latino graduates of 13 high school in 1995, and up to a hundred thousand in 2000, how 14 many Chicano students were enrolled in the first year class at 15 UCLA while you were using affirmative action? 16 A Bear with me while I find this. 17 Q This is the smallest print -- 18 A Smallest print. 19 THE COURT: You know, we should have blown it up 20 yesterday. We have one of those machines upstairs. 21 MR. WASHINGTON: Oh, we were trying to figure out 22 how to do that. 23 BY MR. WASHINGTON: 24 Q How many -- 25 A In 1995, it's five hundred and forty Chicano students. GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 18 1 Q Now, I take it UCLA draws its student body really from 2 the entire state of California, really from the world. 3 A Right, correct. 4 Q But even sticking for a minute with LA County, out of 5 eight million Latino people in LA County, five hundred and 6 forty were at UCLA in 1995. 7 A That's correct. 8 Q And as I understand it, the population of Latino 9 increased rather dramatically even those five years in Los 10 Angeles. 11 A That's correct, about seven percent. 12 Q In 1999, the last year we have figures available, out of 13 those eight million or so Latinos in Los Angeles County how 14 many entering freshman were there at UCLA? 15 A Three hundred and eighty-four. 16 Q Now there's another category I noticed on here, and I 17 didn't read it for Berkeley called Latino, what is the 18 difference between Chicano and Latino? 19 A This is a -- essentially a way in which students 20 themselves identify themselves. So some students of Hispanic 21 background identify themselves as Chicano, and others identify 22 themselves as Latino. 23 Q And what do those terms mean at least according to the 24 standard definition? 25 A Latino is generally descriptive of all those individuals GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 19 1 who have some Hispanic background, Latin American background, 2 including Mexico. And Chicano, typically identifies those 3 individuals who are born in the United States and are probably 4 of Mexican origin. 5 Q Now, Dean Garcia, you testified yesterday that the 6 University of California was being resegregated after the 7 passage of 209. What effect, if any, have you noticed that that 8 resegregation has had on the climate at the University of 9 California at Berkeley where you are? 10 A I have the opportunity to teach both undergraduate and 11 graduate courses so I come in contact with undergraduates at 12 Berkeley as well as graduate students at my school and other 13 graduate programs at the campus. What we've generally found is 14 that, one, we have attempted to overcome a very negative 15 perception that the University of California, particularly 16 Berkeley, is not welcoming enough, nor interested in bringing 17 students of color to the University. This certainly is true 18 for Latino students. So we an effect essentially a loss of 19 aspirations to go to Berkeley which is unfortunate in many 20 regards. 21 I also have the opportunity to work in the mission 22 district of San Francisco in some of my own research 23 activities. So we have done focus groups and interviews with 24 high school students, Latino high school students, in the 25 Berkeley area, and we see the same thing that on the campus GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 20 1 itself we are likely -- I can likely best describe the climate 2 as one of much more hostile to students than pre affirmative 3 action. I've heard a lot in -- across about the issue of 4 minority students being stigmatized by their coming to a 5 campus as affirmative action. Honestly, have not personally 6 felt that since I am a product of affirmative action to some 7 extent. Nor have I seen this in any of the Latino students at 8 Berkeley. In fact, it's just the reverse. I think the 9 students who are at Berkeley now, Latino students -- I had one 10 student doing a dissertation on this, but her preliminary 11 findings indicate that particularly Latino males, females also 12 report this, have a feeling that the climate is much more 13 negative towards their being on campus. 14 What that means is that they're feeling that people 15 identify them and seem them as individuals who for one reason 16 or another ought not to be there. It is still a feeling that 17 there is something about them, that would characterize them as 18 not being capable of taking on the challenges at Berkeley. 19 So unfortunately, we see the very change to a 20 negative climate on the Berkeley campus. I can't report for 21 any other campus, but for Berkeley, I can. 22 Q With regard to Berkeley you said there was a dissertation 23 underway on that? 24 A Correct. One of my students is actually interviewing and 25 is doing at a focus group with Latinos on the Berkeley campus. GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 21 1 And these are students who have come in post-affirmative 2 action. We wanted to see how those folks were doing. 3 Q And are there preliminary results in on that? 4 A Well, only very preliminary results. We've looked at the 5 -- actually the work done by individuals in this case here at 6 Michigan as a model to do the focus groups, ask the set of 7 questions about climate, et cetera, and we're moving in that 8 direction. And all I can say is the initial interviews with 9 students is that, again, there's this negative climate. 10 Q Now, Dr. Garcia, you mentioned that you had also done 11 some interviewing at the Mission High School in San Francisco. 12 What is the Mission High School? 13 A The Mission High School is situated directly in the old 14 missionary of San Francisco which is predominately now Latino 15 neighborhood or set of neighborhoods. The high school itself 16 is approximately seventy-five percent Latino students, the rest 17 African-American and Asian students. 18 Q And the mission district of San Francisco is that one of 19 the most famous Latino neighborhoods in California? 20 A In the last two decades, the mission district essentially 21 been a mecca for immigrants, particularly Latino immigrants. 22 Q What have you found at the Mission High School in the 23 interviews you've done? 24 A First is the hesitancy of even the best students, Latino 25 students, to consider the University of California. And most GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 22 1 directly to consider UC Berkeley. 2 The only reason that we were there is because the 3 University has now extended outreach activities to schools 4 like Mission trying to override these kinds of very negative 5 perceptions. And, of course, try to encourage students and 6 provide them with information that would allow them to come to 7 the University of California and specifically UC Berkeley. 8 We found early on that the hesitancy of students to 9 believe that we were really there, to try to bring them to 10 Berkeley, or to try to assist them in getting to Berkeley. 11 And then even recently during the admissions process when we 12 provided special assistance, when we provided SAT preparation, 13 we still found a reluctance on behalf of some of the very 14 Latino students to consider taking advantage of those 15 opportunities. 16 Q Now, you also said -- that you heard the argument I think 17 you've been in court when questions have been asked that 18 affirmative action somehow another puts a stigma, supposedly, 19 on Black or Latino students who are in school. Prior to the 20 end of affirmative action at the University of California I 21 assume Latino students would come to you for advice and 22 counseling and whatnot over the years? 23 A That's correct. 24 Q And you worked at, I believe, three different campuses 25 at the University of California. GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 23 1 A That's correct. 2 Q And affirmative action had been present on the 3 University of California campus for how long, sir? 4 A I honestly can't -- ever since I've been there, since -- 5 in the mid '70s. 6 Q In all those times did you ever have a student, a Latino 7 or a Black student come to you and say, Dean, or Professor 8 Garcia, you know, I really feel like I don't belong here, I 9 don't deserve to be here because I got in under affirmative 10 action? 11 A I've never had a student stay that. I've not even heard 12 of a student saying that in all my years at the University of 13 California. 14 Q Dean Garcia, we have -- I assume the administration and 15 the deans and the faculty at the University of California meet 16 from time-to-time to discuss what the effect of 208 has been? 17 A We meet quite often, actually. 18 Q And during those meetings have you ever encountered a 19 person by the name of Professor Heriot talking about what could 20 be done or should be done, or what the effects of 209 have been 21 or anything of that nature? 22 A I have not. 23 Q Now, I don't know if Professor Heriot will testify or 24 not, but one of the -- if you turn back to Exhibit 213 which I 25 think exhibits the downward trend of under-represented GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 24 1 minorities at the UCLA, at Berkeley, at San Diego, Irvine, 2 Davis, and so forth. And really the increase, really on two 3 campuses Santa Cruise and Riverside which you said yesterday 4 would be a temporary phenomenon, Professor Heriot says that -- 5 well, people are really happy down at Santa Cruise and 6 Riverside and why should be flub that up. Do you think that's 7 true? 8 A I honestly think that Santa Cruise and Riverside are very 9 happy to have diversity on their campus so I wouldn't disagree 10 with that. I think those individuals at Santa Cruise and 11 Riverside are, in fact, making tremendous gains in diversity 12 there. 13 Q How about for the students, the Latino students that you 14 know, do they want to go to Berkeley, do they want to go to 15 UCLA, do they want to go to San Diego, and so forth? 16 A What we've learned in our study in 1997, again, we 17 reported, called the Latino Eligibility Study, is that the 18 aspirations of Latino high school students, we did a survey of 19 over a thousand of those students, high school seniors, is that 20 their aspirations in terms of going to the best universities 21 are no different than White students or Asian students. And 22 they want to go to the very best institutions including 23 Berkeley and Los Angeles. They've named them very directly. 24 And so -- where they felt they would get the very best 25 education. So the present sort of lead segregation, GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 25 1 redistribution of students is probably taking place with 2 essentially some deep concern on the part of Latino students 3 that they cannot attend Los Angeles, Berkeley, or San Diego. 4 Q They don't particularly like the University of California 5 being resegregated? 6 A Absolutely not. They would like to have, like any other 7 student, the very best education. And, again, their 8 aspirations is that they would obtain that at the best 9 institutions that the UC has to offer. 10 Q Dean Garcia, another claim in this allegedly expert 11 report is that while there's been a positive impact on grade 12 point averages of Black and Latino students, as a result of 13 being thrown out of UCLA, Berkeley and so forth; is that true? 14 A I don't know. At San Diego, at the conference we had in 15 December, we had representatives from San Diego and they were 16 the campus most deeply concerned about their loss in diversity, 17 and concerned about ways in which they might change their 18 admissions procedure to try to deal with it. 19 They did not report at that conference which we all 20 reported our admissions procedures and how we were doing, that 21 they were having gains in their represented students' GPA. 22 Clearly at Berkeley, we had not had any of those gains. 23 Q How do you know that? 24 A Well, we've done specific analyses at Berkeley. I sit on 25 the Admissions Board, and we look at the SAT scores of incoming GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 26 1 students, and ask whether that has decreased. We look at GPAs 2 of students who have been admitted. And we look at retention 3 issues and graduation issues. It's much too early deal with 4 retention and graduation, but we can look at GPAs. 5 Q Sticking just with the students on the campuses, do you 6 see any good in the consequences of the elimination of 7 affirmative action? 8 A I honestly do not. I do not see anything good at all. 9 Q Would that be true for everybody on those campuses? 10 A I think so. I think in some of the work that my student 11 is doing in her dissertation, she's interviewing White students 12 as well. And we have no reports on the Berkeley campus that 13 affirmative actio is perceived -- the loss of affirmative 14 action and the loss of diversity has resulted, has been 15 perceived as positive by anyone, including the faculty. 16 Q The faculty at the ed school included? 17 A The faculty at the ed school and our -- we're struggling 18 very hard as a faculty to try to deal with the effects, the 19 negative effects of Proposition 209. 20 Q Now, Dean Garcia, I want to move just a minute off the 21 campuses at the University of California, or at least out of 22 the student body. What effect, if any, has the end of 23 affirmative action among -- on admissions had on your ability 24 to hirer faculty, teachers, et cetera? 25 A Well, we had a retreat this summer on campus and we had GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 27 1 an action of behalf of the president just in January which one 2 articulated the tremendous decrease in the hiring of minority 3 of women faculty throughout the University of California 4 system, and specifically Los Angeles, Berkeley and San Diego at 5 the most preferred and most selected campuses. That drop in 6 women hiring is in half, fifty percent of what was post 209, 7 and more than that for minorities. So that the system is quite 8 concerned about this and a set of activities, meetings, 9 initiatives have been launched, a particular task force has 10 been launched to look at this. And the state senate has 11 launched a series of hearings particularly related to the lack 12 of minority women hiring in the University of California. 13 Q How do you see it connected to the end of affirmative 14 action in particularly the end of affirmative action for 15 minority students at these campuses? 16 A Essentially the spiraling staircase, some call it a 17 pipeline, but I like to use the metaphor of staircase because 18 individuals who work hard to climb stairs of higher education 19 essentially reach levels of a professional degree or a 20 doctorate degree, all we've done is narrowed that staircase. 21 People working just as hard, but fewer people are making it 22 through to the top. So we're seeing it less and less numbers of 23 availability to pool the shrinking so that if you minimize the 24 number of under-represented students particularly Latino 25 students coming into a premier university system like Berkeley, GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 28 1 or like the University of California, in particularly Los 2 Angeles and Berkeley where many of our students go on to 3 professional degrees as compared to the other campuses, and 4 many go onto post graduate programs, that you will eventually 5 see that the diversity amongst the faculty will also decline, 6 and that's what we're beginning to see. 7 Q Okay. And what effect, if any does that have on the 8 education of those few minority students who still go to 9 Berkeley or UCLA, or San Diego? 10 A It's been quite documented in the sociological 11 literature, but certainly in my own personal experience, it 12 seems to reiterate that when you have minorities on the campus, 13 you're more than likely to draw other minority students and 14 retention and graduation rates are also at least correlated 15 with the presence of, and the mentoring of minority faculty 16 with minority students. It is an additional assistance for the 17 recruitment and retention. Our efforts in the recruitment of 18 students to Berkeley post 209 has meant every year in the 19 spring I spend about ten hours on the phone trying to reach 20 those individuals who are admitted, particularly Latino 21 students and African-American students, reassuring them that 22 they should come to Berkeley. 23 And why was I selected to do that as oppose to White 24 members of the faculty? Because I can, first of call, I can 25 speak to the parents. On many occasions I have said to the GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 29 1 person answering the phone, buenos noches, and sure enough, 2 it's mom or dad. And I can tell that their son or daughter 3 often come to Berkeley. And I can do it in a language which 4 they understand. In addition to that, I have much more 5 credibility with even African-American students indicated to 6 them that there are -- every, every effort will be made to 7 provide successful opportunities for them. 8 Q Now, Dr. Garcia, you mentioned that it had been shown 9 that the retention and success of minority and Latino students 10 in particular was correlated, had been shown to correlate with 11 the presence of Latino and Black faculty, minority faculty. 12 Can you tell me something about those studies? 13 A These are done primarily in the social science 14 departments, and where we have a large number of minority 15 faculty members. In some cases in the professional schools 16 like education, those areas have been out ahead in terms of 17 hiring minorities and women as oppose to the sciences, the 18 natural sciences. 19 The national data indicate, particularly at the 20 graduate level that were you have minority faculty in graduate 21 programs, who have responsibility for mentoring students, 22 counseling students that the retention rates and the 23 graduation rates of those students and the opportunity for 24 those students to find employment after they graduate is, in 25 fact, enhanced. GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 30 1 Q As far as you know, are those studies more or less 2 undisputed? 3 A As far as I know, they're undisputed. And in my own 4 experience as a dean, and my own colleagues at Berkeley as 5 deans understand this relationship. And is why as deans, as our 6 administration, we try very hard to recruit minority and women 7 faculty recognizing that this will not only help us diversify 8 the faculty, but will probably help us to recruit and retain 9 other minority and women, graduate students and undergraduates. 10 Q Now, you described when we started your testimony 11 yesterday I think what you said was a K through 12 educational 12 system which was in crisis. What effect, if any, has the loss 13 of affirmative action had on the ability to solve that crisis 14 or even begin to solve that crisis in K through 12 education in 15 the state of California? 16 A Prop 209 was very directly aimed at higher education as 17 we cannot use race in admissions, race, gender or ethnicity. 18 We had not been able to enhance the K-12 educational 19 environment. And, of course, it will take tremendous sets of 20 resources to do that. So I have to say the K-12 system has not 21 been able to respond at all to the challenges of providing a 22 competitive group of students who come from diversed, racial 23 backgrounds. 24 Q How about training teachers? What effect, if any, has 25 209 had on that? GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 31 1 It's actually had a bit of a negative effect at our 2 premier institutions, UCLA and Berkeley is that -- even at 3 Berkeley where we try very hard and we have a dean that's 4 deeply committed to all equally qualified individuals come and 5 from diversed background, we are beginning erosion in the 6 number of professional -- participants in professional 7 programs from diversed racial and ethnic backgrounds. 8 Q In terms of people of Latino or African American or 9 Native American backgrounds, has there been any indication as 10 to whether those people return to teach in their communities in 11 some way in greater rate than anybody else? 12 A We have specific data at our campus, Berkeley, and we 13 find that almost a hundred percent of the Latino students 14 graduating return back to serve in Latino schools, Latino 15 segregated schools. And we know from other research that in 16 the medical area, health care, that's also the case. So that 17 in education and at least in the data I know from medical 18 health care, the data we have from the University of California 19 San Francisco that those students do return to their 20 communities. 21 Q But now there's less of them to return. 22 A Less of them. 23 Q Now, Dr. Garcia, you spoke yesterday about the question 24 of stereotypes. First of all, let me ask you, yourself, you're 25 Dean of the School of Education, you've been a professor for GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 32 1 twenty-some years, doctorate degree, post-doctorate studies, 2 are you stereotyped? 3 A Unfortunately, yes, sure. 4 Q Can you tell me just one or two examples of how that 5 occurs? 6 A Well, it's always the case that I find myself in 7 situations where I may be the only minority individual in a 8 situation where there is a substantive set of decisions to be 9 made about whether it's admissions or curriculum, or whatever. 10 I've chaired curriculum committees for the Academic Senate at 11 the University of California. I've chaired departments. I've 12 run national research centers. And in opportunities that I've 13 had to either chair those meetings I sometimes feel that 14 someone is implicating that I may not be capable or not be able 15 to take on those responsibilities. 16 Q How about just in day-to-day life? 17 A I have to admit it varies and it's a lot less, but having 18 just traveled to Southern California and, of course, coming 19 from the Southwest in Colorado, I'm afraid that those kinds of 20 stereotypes still exist and that I'm still a part of that 21 consequence of those stereotypes. 22 This is to my home town in Colorado, I've actually 23 been refused service or at least delayed service in 24 restaurants. Silly things that most people wouldn't pay much 25 attention to. But if you're someone who grew up in that GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 33 1 environment, you attend to those, you can't help but attend to 2 them. And you begin to realize that something's funny here, 3 and what's funny is, that they're responding either to your 4 last name or to your color, and that's unfortunate. 5 Q How about things like cutting grass? 6 A Well, I've had a recent experience where cutting my lawn 7 and a neighbor from a block away stops by and asks how much I 8 charge to cut lawns. As you may know in California, the Latino 9 populations are very employed in the cutting lawn business. 10 And so I'm perceived as someone who cuts lawns. And it's an 11 unfortunate situation, and I tried to explain to this 12 individual that I don't cut lawns. That's about as far as I go. 13 It's a matter of ignorance. 14 Q Dr. Garcia, do you know Dr. Claude Steele? 15 A Yes, I do. 16 Q How do you know him? 17 A Dr. Steele and I were colleagues together at the 18 University of Utah in the Department of Psychology in 1972, to 19 1975. He went to -- he left to go -- to come to Michigan, 20 actually, from the University of Utah, and I went to Harvard 21 for a post doctorate. And we parted ways there, only to be 22 reunited in California where he serves as a colleague at 23 Stanford and, of course, I'm at Berkeley. 24 Q Were you close to him at the University of Utah? 25 A We both were in the same department. I was in GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 34 1 Departmental Psychology, faculty member. He was in social 2 psychology back then. 3 Q And were either one of you hired under any kind of 4 affirmative action plan -- 5 A Both myself and Claude, and his brother Shelby, and John 6 Garcia were hired the same year under affirmative action at the 7 University of Utah. 8 Q And what year was that? 9 A 1972. 10 Q Now, with regard to Dr. Steele, are you familiar with any 11 work he has done on the question of stereotype threat? 12 A Yes, my interest in academic achievement testing both at 13 the K-12 level and at the university level has always led me to 14 keep in touch with Claude's work, particularly the work he 15 began at Utah, and then continued at Michigan and is continuing 16 at Stanford. So I'm aware of his methodologies, his 17 experimental activities in the area of social psychology 18 particularly related to race stereotyping. 19 Q Do you agree with his conclusions? 20 A They're pretty strong and powerful experimental 21 conclusions. They're based on laboratory work, fairly 22 controlled and probably better than we get in the general field 23 of psychology. 24 Q Does that have an effect on performance upon things like 25 standardized tests and grades for under-represented minority GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 35 1 students? 2 A I think his work shows very directly -- as other social 3 psychologists have pointed out -- have society and others 4 perceive oneself, is at least a major factor in determining how 5 you see yourself. And that, in turn, guides the behaviour that 6 you exhibit. 7 His work particularly on standardized tests indicate 8 clearly that the persuasive stereotyping of ability, negative 9 ability in racial minorities and ethnic minorities and women, 10 all three of those, do tend to generate a very interesting set 11 of behaviour when those students are asked to take 12 standardized tests. Many of those tests being used by 13 universities and public schools to make high stakes decisions 14 about entrance, or graduation. 15 Q Can you describe those experiments, what you said you 16 strongly agree with and conclusions? 17 A Claude essentially asked students to take examinations 18 which he previously has identified as these students having 19 done well in. So he uses mathematics examinations either SAT 20 or in California among high school students, PSAT. 21 These are students who are identified by their 22 teachers or identified by previous scores on these tests are 23 doing very well. Then he asks them to take the test again or 24 a sub-test of those items. He indicates to them in general 25 that they are ability tests, they are tests of raw ability. GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 36 1 And in some cases indicates that Blacks, women, Chicanos, 2 don't do very well on ability tests. In other implementations 3 he just indicates they're availability tests and they measure 4 raw ability in these areas. 5 He finds in each of those -- 6 Q When you say he indicates that, meaning he said that to 7 the people who are taking the test? 8 A He says they're ability tests. So he makes that very 9 clear. 10 Q What effect, if any, does that have on the test 11 performance of those students? 12 A Those students do poorly on those tests which have great 13 implications for, again, how students behave with regard to 14 previous perceptions of their own notions ability. 15 Q What conclusion do you and -- what conclusion did he draw 16 from that and what is your review on that? 17 A One very directly -- two conclusions. One is when 18 students are informed directly -- these are students again who 19 again have performed independently well on these examinations, 20 on these similar items. When they're informed directly they do 21 poorer than White students who are given the same kind of 22 indication that they may not do well on these tests. But even 23 if you don't tell that, the indirect notion that these are raw 24 ability tests still produces a differential effect, meaning 25 that African-Americans. And now his work has extended to high GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 37 1 school students in Los Angeles. This has a tremendous negative 2 effect on their performance, on their specific performance on 3 those examinations. 4 Q And the work among Latino and African-American students 5 in Los Angeles, that is showing these kinds of effects on what 6 tests? 7 A On the PSAT in high school. This is in the high school 8 area. His initial work was with college students, both at 9 Michigan and Stanford. And most recently reported this work 10 with high school students in Los Angeles. 11 Q Okay. Now, what is your understanding of the term 12 "stereotype threat"? 13 A Essentially it means that a pervasive out in somewhere is 14 this general feeling -- you asked me do I feel it? And most of 15 us who have lived in a society that uses race, ethnicity or 16 even accents, language accents, dialectics as a way to 17 categorize, deal with ability that, that essentially comes 18 through to the individuals who continually interact with that 19 perspective. And so the general stereotype then of your having 20 the less than capability or ability transforms itself into your 21 own way of behaving, and has a very negative effect on your own 22 performance. 23 Q Okay. And did Dr. Steele perform any kind of experiments 24 to determine whether this could be alleviated in some way? 25 A He tried very much. In other words you can tell students GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 38 1 as I do in my phone calls that you can come to Berkeley and 2 don't worry, we want you at Berkeley. But the general feeling, 3 the general notion is that, well, yeah, but, you know, there's 4 forty percent less, forty-five percent less. I can't believe 5 you. So even when you try to persuade students that this is 6 not the case, that really they're very able and capable, there 7 is just this general feedback, interaction they've been 8 receiving. And Claude tried to make the case that this is 9 long-term. This is not something that you can overturn with 10 test preparation and ego development or something like that, 11 that essentially instills in a student this wonderful feeling 12 of overcoming adversity. This a long-term effect. 13 Q Now, did Dr. Steele -- are you aware of any experiments 14 that he performed where he tried himself to take that threat 15 away in administering the test? 16 A Yes, he did so when a certain set of interventions in 17 which he essentially tried -- for those students who had not 18 performed well, to indicate to them that, in fact, they could 19 perform well, that this was an intervention or a set of items 20 that they were very good at. And even then he found 21 differences between African-American and White students, and 22 women, and males. 23 Q Did he ever present if you know experiments in which he 24 told people this is not a biased test, it doesn't test ability, 25 don't worry about, anything of that nature? GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 39 1 A One of his conditions was exactly that, to try to do 2 that. And still the differential performance was there. 3 Q Now, Dr. Garcia, the question of the threat, the 4 stereotype threat, you said that it was present. Is it 5 particularly present in terms of when students from Black and 6 Latino and other under-represented minority background take 7 high stakes standardized tests? 8 A It's particularly the case when students are either 9 themselves understand or whether someone directly indicates 10 that it's a high stakes test. "High stakes" meaning there is 11 going to be a decision made on your future based on whether or 12 not you do well, or you don't well, that this seems to 13 exacerbate that effect. 14 Q And in your opinion, are the gaps in test scores between 15 White students and Latino and African-American students 16 explained in part by this stereotype threat effect? 17 A It seems reasonable that is at least part of -- that 18 might explain that gap. 19 Q And even in the tests, we've had testimony here about the 20 content, about the tests, and the correlations and so forth, 21 but in the actual taking of the test is there a level playing 22 field between Black and Latino students who are taking those 23 tests and White students who are taking the same test? 24 A At present, no. 25 Q Let me just follow that up. I guess many of us have GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 40 1 taken standardized tests and we all get a little bit nervous. 2 What's different for Black and Latino students? 3 A Well, for one, I would say the issues we've just 4 discussed in terms of your own notions, coming from a number of 5 different sectors in society about your ability to do well on 6 tests. General notions about your intellectual inferiority. 7 Your verbal, mathematical inferiority of that, clearly is 8 something that I think students worry about. White students 9 really don't confront. I don't think any White student, even a 10 poor White student ever confronts that prospective. 11 I say for Latino students, I said earlier that the 12 extensive absence of access to English in a rich domains is 13 another problem, and helps us understand the gap. 14 So I would say putting all those things together, 15 there are differences. It's obvious but the educational 16 experiences of those students as they come to that three hours 17 of testing and all the instruction they may have had or lack 18 of instruction they have had, the quality of the curriculum, 19 the quality of the professors, the care that those individuals 20 might have taken with them, makes it an uneven playing field. 21 Q And would it be fair to say that the phenomenon of 22 stereotype threat as developed by Professor Steele and others, 23 effects someone because of their race or ethnicity, per se, 24 really without regard to whether they're poor or rich, 25 preparation, that kind of thing? GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 41 1 A I would say so, yes. 2 Q Dr. Garcia, just a couple more questions on that. The 3 studies that it sounds like have been done, with college 4 students and on college entrance exams and now on high school 5 students, does it in your opinion change when someone is 6 applying to a graduate or professional school? 7 A I can't imagine it would. 8 Q Why not? 9 A I think as I indicated to you on the campuses those 10 students are on, I don't think that stereotype threat 11 disappears. I don't think it's disappeared from society. I 12 don't think it disappears in the general interactions they have 13 media, whatever. So I don't think it's likely to disappear by 14 the time they're ready for graduate or professional degrees. 15 Q Does your school used the standardized tests to admit to 16 the education school? 17 A We require all students in the University of California 18 to take a graduate record exam. 19 Q When you say "we require" -- 20 A "We" meaning the University of California. 21 Q That you require. 22 A We in the School of Education require it because we're 23 part of the University of California. 24 Q Your hands are tied. 25 A I'm sorry? GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 42 1 Q Your hands are tied. 2 A Our hands are tied. 3 Q Do you pay any attention to the GRE? 4 A I'd have to say directly we try not to pay attention to 5 the GRE. On the other hand I think some of my colleagues and 6 the University faculty because of the culture of trying to 7 access future success does attempt to stay with the standards 8 of the GRE. However, it is not used in any formulated matter 9 to determine admissions into the Graduate School of Education 10 at Berkeley. 11 Q Okay. 12 THE COURT: What's used? 13 THE WITNESS: We use -- we look at the entire file 14 so that we have the GRE scores; we have essays. We require 15 three -- 16 THE COURT: Each individual is treated individually. 17 THE WITNESS: Each individual is treated, yes. And 18 we find that the GRE scores, we did an analysis at the 19 Graduate School of Education, of course, under my direction, 20 but done by my associate dean, that showed no relationship 21 between entering GRE scores and retention at graduation. 22 THE COURT: You used them, however, at least for the 23 pool the people that you like to look at? 24 THE WITNESS: We use them quite honestly because 25 we're required to use them by the University of California so GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 43 1 that -- 2 THE COURT: If you had a choice -- if the University 3 didn't require it -- 4 THE WITNESS: We wouldn't use it. 5 THE COURT: You wouldn't require people to take 6 them? 7 THE WITNESS: No, I wouldn't require them. 8 They do not inform a decision. We try to make a 9 decision that's related to who can best profit from the 10 experience we have to offer them. The GRE doesn't help us. 11 It doesn't add value to that indication. What seems to have 12 most value is the student's own writing and previous 13 educational experience. So we can access their writing -- 14 THE COURT: There are grad schools that don't even 15 require it; isn't that true? 16 THE WITNESS: I'm sorry? 17 THE COURT: There are grad schools that don't even 18 require a GRE. 19 THE WITNESS: Yes, that's correct. 20 BY MR. WASHINGTON: 21 Q In your experience, is the GRE continued to incorporate 22 the same kind of test gaps and discriminatory impact on Latinos 23 an on African-American and Native American students as you've 24 testified about the SAT? 25 A I haven't done individual work myself. I can only report GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 44 1 that others indicate that that's the case. 2 Q Now, just on the issue of standardized test, would you 3 say that the use of standardized tests itself as they exist at 4 this moment, and as they're administered this moment, create a 5 double standard? 6 A Absolutely. 7 Q And who is benefited by that double standard? 8 A Right now at Berkeley and at the University of California 9 it benefits primarily male white students and Asian students. 10 Q Now, just let me -- 11 THE COURT: If you didn't use them, you would 12 eliminate that discriminatory -- 13 THE WITNESS: If we didn't use them -- I haven't run 14 the numbers, but theory -- 15 THE COURT: As an educator, and a person who is 16 obviously is a dean, if you didn't use them, that would 17 eliminate at least one level -- 18 THE WITNESS: That would eliminate at one area that 19 does produce discrimination. 20 BY MR. WASHINGTON: 21 Q Now, Dr. Garcia, just on the question of Asian students, 22 and test scores, and that's the only part here that I want to 23 go into because we've got another witness who will testify as 24 to the particular, but on the test scores, you had mentioned 25 the familiarity with academic English being something that GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 45 1 correlates with performing well on the test. What if, 2 anything, does the experience of the Asian population, and I 3 know that's a large group, but experience, if any, does that 4 have with regard to that conclusion? 5 A At Berkeley we've looked fairly closely into that. About 6 forty-two percent of our entering freshman class is Asian, 7 identified as Asian. But if you break that down, you realize 8 that group does not include Vietnamese students, among 9 students, other Southeast Asian students. So it does not 10 include those. It's primarily Chinese national and Tiawanese 11 student that are first and second generation immigrants coming 12 into the Berkeley campus. 13 When you look at the past experience of those 14 students we find two things that are interesting and that 15 separate them from Latino students in particular which is an 16 area which I do work. One is that most of the immigrant 17 Chinese students have parents that come from schooled 18 background or themselves are schooled elsewhere. 19 Having visited China and looked at their educational 20 system it is a highly competitive educational system. That 21 is, a set of tests are given, a set of levels to indicates who 22 proceeds. 23 That's not true in Mexico by the way, or Latin 24 American countries. You don't go on to the sixth grade based 25 on a test in fifth grade. You, primarily in Latin America, GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 46 1 it's a socioeconomic, who can afford to go to school, goes to 2 school. And those that don't go up to the eighth grade, and 3 that's about it. In China it's a very direct testing. So 4 students do come in with a clear testing culture in their 5 parents or themselves. 6 Secondly, they spend lots of time in mathematics, 7 high entering SAT scores. And entering academic scores, we 8 require an English for the -- an inclusion into the entering 9 freshman class. The University of California is native 10 Chinese students do not do well in English. So they lack depth 11 in English. Where they do very well is in mathematics. So 12 that's what we know of the Chinese Asian students in Berkeley. 13 Q When you say "native" are you meaning persons who are 14 person-second generation, immigrants in the United States? 15 A I would say most of them are actually first or second 16 generation. 17 Q And those students on the SAT English section don't do so 18 well. 19 A They don't do so well, right. 20 Q How about in comparison to the Latino students, how do 21 the Asian students do on the -- Chinese students do on the 22 English part of that exam in regard -- 23 A On the set one across system and at Berkeley, Asian 24 students do a little bit higher than Latino students, and do 25 much less than White students on the verbals. However, they GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 47 1 out-perform Latino and Whites on the mathematics. 2 Q Okay. Now, Dr. Garcia, we have seen and you've described 3 -- and I should by the way, move to admit Exhibits 213 and 214 4 at this point. 5 THE COURT: No objection? 6 MR. KOLBO: No objection. 7 THE COURT: Received. 8 MR. WASHINGTON: And also Dr. Garcia's report and 9 resume which I think is 168. 10 THE COURT: Any objection? 11 MR. KOLBO: No. 12 THE COURT: Received. 13 (Trial Exhibits 213, 214, 168 received into 14 evidence.) 15 BY MR. WASHINGTON: 16 Q Dr. Garcia, you described the tremendous fall and your 17 report describes a tremendous fall in admissions and the 18 overall effects of 209. I assume that this is something that 19 causes you personally a great deal of concern. 20 A Of course it does. I am an individual who probably early 21 on was -- could have been identified as someone who is a non 22 performer, probably likely not someone who would go on to do 23 well in a challenging academic environment, et cetera. And I 24 just know that's an inappropriate identification of students 25 particularly as it relates to the use of achievement tests or GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 48 1 standardized tests. So it's personally discouraging to see 2 this. 3 Q How about on your faculty? How does faculty feel about 4 this? 5 A Oh, they seem to feel the same way at Berkeley. I don't 6 just mean my school, the educational faculty, I think the 7 faculty at Berkeley have reiterated time and time again that 8 the loss of affirmative action has removed a set of 9 opportunities for students to come to Berkeley. 10 Q Do you serve on the admissions committee at the 11 University of California Berkeley? 12 A I set on the admissions board. 13 Q What is the admissions board? 14 A The admissions board is a combination of faculty members 15 who sit on the admissions committee. The admissions committee 16 is made up faculty members. The admissions board is made up fo 17 senior levels of the administration, and the admissions 18 committee. 19 Q This is a policy board of some sort? 20 A It's a policy board. It oversees policies. 21 Q And are there also state-wide meetings of the University 22 of California regarding the subject of admissions? 23 A Of course, yes. 24 Q How frequently does it meet? 25 A We have a faculty committee that meets every month. And, GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 49 1 of course, we have special meetings at least once or twice a 2 year. 3 Q And when was the last one you went to? 4 A The last one I went to was in December of this last year. 5 Q Professor Gary Orfield testified here and said that there 6 were a lot of people working very hard to come up with some 7 other way to admit minority students to UCLA, UC Berkeley, and 8 the other UC campuses; is that true? 9 A That's correct, working very, very hard. 10 Q Has that been true for the last four or five years? 11 A It has been true. 12 Q Have you come up with any other way to do it? 13 A I'm afraid to say we have not. I'm afraid to say we are 14 -- as I said in my first comments we have attempted to try to 15 work with the K-12 system, to solve the problem there. I was 16 -- as I said, I've sat on at least task forces university-wide 17 since the passage of 209. Two of them appointed by the 18 regents, one by the governor to attempt to look at these 19 issues, to look at alternatives, to combine outreach with -- to 20 present plans with procedures that we might relate to changing 21 admissions policies. We've looked up an down the hallway, 22 across the street, and we have worked very hard. We have 23 invested millions of dollars in outreach in the last four 24 years, post 209. I mean hundreds of millions in outreach. 25 I've described the kinds of efforts we're doing on each campus GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 50 1 where the faculty themselves go out. We call. We do everything 2 we can. And you can see the losses have not been anything to 3 be proud of. We have not gotten close to where we were with the 4 use of affirmative action. And it is frightening that we may 5 even continue to lose more ground. 6 Q I'm going to ask you some specifics but what in general 7 is the reason that with all this work and all of this effort 8 and all of this concern you haven't been able to -- the 9 representation of people, the admissions of minority and Black 10 students and Latino students anywhere near where it was, what's 11 the problem? 12 A The problem directly is we've eliminated the opportunity 13 to use race as one variable. Gender, ethnicity is one variable 14 in the determination of qualified students to come to these 15 campuses. These are not unqualified. These are not low 16 achievers. There are not terrible students. We have not found 17 an alternative. We do not control the K-12 system. The 18 University of California has control over its admissions 19 procedures, what it perceives as important in admitting 20 students. And we have not been able to come up with 21 alternative procedures, processes which make up for the loss of 22 that one variable, the use of race and gender and ethnicity to 23 make up that difference. And it's the only thing we can do. 24 We can't control the legislative support of PSATs or SAT preps, 25 or high AT courses in schools that don't have them, honor GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 51 1 courses, or even enhance the quality of teachers. The 2 University of California only produces four percent of the 3 teachers in California. Private institutions produce the 4 majority of our teachers. We don't have the levers to do all 5 the things that others have suggested that we ought to do, but 6 we have been inhibited from using the one thing that we can do. 7 And if anything I would say to you at Michigan don't give up 8 that lever. Don't stop the efforts to help people out, but 9 don't give up that lever. It has been devastating to diversity 10 and cause what I think would be a multi-tiered higher education 11 system in what was once not that multi-tiered in California. 12 Q Why is that factor so important? 13 A It allows us to consider along with all other factors the 14 historical record of set of issues that impinge on the 15 competability of competent -- the ability to compete in this 16 high stakes notion of admissions. When Los Angeles, Berkeley, 17 and San Diego are turning away so many students, it is 18 important to take into consideration both historical, present, 19 and future considerations of diversity in our campuses. It is 20 our mission. It is in our constitution, and we are relieved of 21 the tool that allows us to do that. 22 Q When you were describing K through 12 educational 23 opportunities and grade point, how important is the factor of 24 race in California into determining what kind of opportunities 25 for classwork, for grades, for courses a student receives? GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 52 1 A It's very clear we have a school system that has a one 2 end a very excellent opportunity structure for our students, 3 and at the other end a less than opportune structure. And 4 unfortunately Latino, African-American and American Indians are 5 on the negative side of that curve. 6 Q So a race is a big factor in terms of the educational 7 opportunities, the courses, the grades that students come to 8 the University of California with? 9 A That's true, and we have not even as we've shifted to the 10 focus on socio-economic status as a way to try to rectify this 11 issue. We have not been able to overcome the stereotypic 12 issues, the inappropriateness of achievement tests, and 13 standardized tests. So even when we try to focus on poverty as 14 a primary indicator, and clear our Latino students, our 15 African-American students are majority poor. But these other 16 things we have no control over. We cannot change the way 17 students are perceived and the way they themselves take on that 18 perception and how that relates to performance. 19 So even when we attempt to sort of change of the 20 focus to issues of socio-economic status and poverty we can't 21 escape the social consequences of race and its negative effect 22 on students. 23 Q Professor Foner testified yesterday about how critical a 24 factor race was in our four hundred and some year history, do 25 you see the importance of that factor coming down to us in the GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 53 1 educational system of the state of California? 2 A I directly see it. I see it in the resources that are 3 provided to students both physical and professional. I see it 4 in the effects of individuals that we're preparing as students, 5 who go out and serve those students, who, themselves carry this 6 notion of inferiority, of -- in Espanol we call it peopricito, 7 peopricito syndrome. 8 THE COURT: You'll have to spell that. 9 THE WITNESS: P-e-o-p-r-i-c-i-t-o. 10 A Peopricito syndrome as I've described it essentially is 11 when teachers perceive as student as unable, poor, doesn't 12 speak English and essentially causes a set of expectations 13 which are reduced, a set of curriculum challenges that are 14 reduced, therefore, educational achievement which is 15 essentially rendered lower than that expected of other 16 students. 17 BY MR. WASHINGTON: 18 Q In fact, I meant to ask you that in connection with the 19 question of stereotype threat, is there -- in the educational 20 field is there research to show that the expectations of the 21 teachers, subjective views of the teacher, influence how the 22 students learn? 23 A Powerful research. It began in the 1950s, would show 24 expectations particularly those individuals charged with 25 creating teaching, learning environments can have tremendous GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 54 1 effects on students. 2 Q And I suppose teachers are no different than any of the 3 rest of us in this world. I assume teachers even with the best 4 intentions and sometimes not with the best intentions can 5 perceive students, convey perceptions to students. 6 A Very directly not only their perceptions but what they do 7 in classrooms. So study after study have shown teachers who 8 call less on Hispanic students and Black students whose 9 assignments to them are less than demanding and in that way 10 reaffirms this notion of their expectations to these students. 11 Q Dr. Garcia, sometimes talk about well, let's just throw 12 the test out, or maybe write a new one, would that change this? 13 A No, and, in fact, it's such a deep culture in higher 14 education about independent assessment of students' achievement 15 that even I would not throw the test out. I would try though 16 because we do have a theory of test development, we do know 17 populations, we do know about stereotype threat, we do know all 18 these things now that we didn't know before, before we 19 established the SAT or even high school graduation exams in 20 ways that may be negative to students. There's nothing that 21 prevents us over time in developing the right mechanisms to 22 assess achievement separately and to directly relate that a 23 decision about whether or not that score, or that achievement 24 can add value to a decision as to who can benefit from a 25 challenging higher education. But at present, that's just not GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 55 1 -- we're just not able to do that. 2 Q The tests aren't there? 3 A Just aren't there. 4 Q Tests aren't there, stereotype still is there -- 5 A Right. 6 Q Difference in resources is still there -- 7 A It's still there. 8 Q The difference in courses, the difference in grades, 9 still there? 10 A It's still there, unfortunately. 11 Q This entire system you've described, would you call it a 12 race neutral system? 13 A As it presently exists it is not a race neutral system. 14 Q Do you think there's a double standard in this system? 15 A I think the ways in which we make decisions about who 16 gets in, generates a double standard. 17 Q Tell me specifically some of the things that have been 18 looked at the University of California as substitutes for this 19 critical factor of race and ethnicity? 20 A Very formally we've looked at percent plans, ways in 21 which we can contextualize the identification of students based 22 on the opportunities available at their own schools so that 23 rather than a state-wide eligibility indicator or definition, 24 we've gone to school base definition. That, if we run the 25 numbers we've just started the four percent plan in California, GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 56 1 it will not do much to get us to where we were pre 209, nor 2 over time because the high segregation of students and the 3 large number of small high schools that are predominantly white 4 even when we do contextually based eligibility, it does not 5 increase substantially the number of under-represented minority 6 students who would become eligible automatically to the 7 University. 8 THE COURT: The reason being that the white schools 9 in rural areas and so forth counteract that? 10 THE WITNESS: We're both rural and urban. So all 11 the rural schools, again highly segregated white schools 12 essentially cross off the large number of urban schools that 13 are highly segregated Latino and Black. 14 THE COURT: But they have the similar problem in 15 terms of funding for AT classes and so forth. 16 THE WITNESS: Same kind of problems. 17 THE COURT: So will it even out somewhere down the 18 line? 19 THE WITNESS: What we're doing is diversifying the 20 entering class in terms of urban and rural is what's 21 happening, but we're not doing it in terms of race or gender 22 or ethnicity. 23 BY MR. WASHINGTON: 24 Q And just on that, I know you said there aren't so many -- 25 THE COURT: If you did that -- I think what you're GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 57 1 suggesting is whether -- wherever the school is to make up for 2 the inadequacies to know -- to get the funding and so forth, 3 you would give additional high school points or something for 4 that particular high school, or some kind of formula that 5 would add to their GPA or add somewhere in there to counteract 6 the schools that are wealthy and are able to offer good 7 teachers and ATs and forth. But it doesn't even out so you 8 don't get the minorities and the diversification you'd like. 9 If you use that together with a random draw, then that would 10 at least increase the probabilities and able to have more 11 diversity. 12 THE WITNESS: We raised in my report to the regents, 13 we raised as one possibility a lottery in which students would 14 be selected. It has no support amongst the faculty or amongst 15 the population, amongst the regents. The reason why is that 16 once you start using a lottery and a faculty at any 17 institution will tell you take away the opportunity of the 18 faculty to makes decisions about who comes to their campuses. 19 So that at least in California the use of that solution has no 20 support either amongst the faculty. There's no reality -- 21 THE COURT: It's really interesting. Let me ask you 22 this question: If diversity is so important why would the 23 faculty take a position that it's more important -- as long as 24 all students are qualified -- we're assuming if you even the 25 playing field so to speak, and that's a word we've been using GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 58 1 here, and give those points to those schools that have the 2 less opportunity to give them in any other fashion, whether 3 they be minority or White or anything else, it doesn't make 4 any difference, and the faculty takes the position they don't 5 like it because they're losing their ability to choose the 6 exact students that they want, isn't diversity much more 7 important -- as long as all those students are qualified, than 8 the faculty's ability to be able to say, well, I like that 9 student -- 10 THE WITNESS: Seems like a great idea doesn't it? 11 Here's the faculty's response -- 12 THE COURT: I was surprised the answer was the 13 faculty. I can understand the general population because of 14 the built-in prejudices. I can understand maybe the 15 legislative because they have the same political problem, but 16 I have a hard time understanding the faculty. 17 THE WITNESS: Faculty are on two grounds. One is 18 that the constitution and the faculty are charged with making 19 decisions as it comes to the university so that taking out a 20 way is sort of a philosophical conceptual issue. If you take 21 that away, what are you going to take away next? So it's that 22 one. The second is we have a particular kind of campus at 23 Berkeley. UCLA has another kind of unique -- like I say, at 24 the University of California, we are more of a federation than 25 we are anything else. Each campus has its own expertise, its GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 59 1 own speciality, its own sense of self. And clearly what 2 faculty would argue is we want to make decisions in who comes 3 to this campus based on that unique sense of self and who we 4 are. And we will do everything we can to be 5 non-discriminatory, but a lottery is not -- would fit the bill 6 with regard to these two issues. 7 THE COURT: See, my issue is: If diversity is so 8 important, then give and take -- 9 THE WITNESS: It's a very complicated issue in which 10 diversity is important as is the quality of education, as is 11 rendering a faculty who can provide that. I don't think that 12 our faculty would say diversity is insignificant, but it is to 13 be weighed with a set of other considerations much like -- I 14 have argue that the admissions process, race is not what is 15 going to be the primary factor. It is weighed with a very 16 complex set of variables that determine who can profit from 17 the experience or the challenge of the curriculum at the 18 university. I would say that's basically what the faculty 19 would say. We want diversity, but we take it into 20 consideration along with a set of other variables. 21 BY MR. WASHINGTON: 22 Q Dr. Garcia, there are two areas of ambiguity I want to 23 clear up and we'll talk some more about the specific plans. 24 But as far you know has anybody suggested that admissions into 25 a law school or into a medical school those kinds of schools be GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 60 1 determined by the basis of lottery? 2 A I don't know of any such -- 3 Q Has anybody we've suggested we ought to pick our doctors, 4 or our lawyers, or anybody like that by some kind of lotto? 5 A Not at all. 6 Q Has anybody as far as you know, suggested that we ought 7 to have five percent plans or ten percent plans or anything of 8 those natures for law schools, or medical schools, schools of 9 that nature? 10 A No, I have not. 11 Q The plans we're talking about here then are plans and 12 it's the area you've talked about for undergraduate admissions 13 which is in a certain way not directly the subject of this 14 litigation, but obviously is effected profoundly by it. You 15 mentioned earlier that even the people who are now eligible to 16 apply to the University of California, to all of the campuses, 17 eight, nine campuses, that among graduate Latino students only 18 3.0 percent and among African-American -- I'm going to get the 19 figures wrong, but roughly between three and four percent. 20 A Three to four percent. 21 Q Only three or four percent of those folks are even 22 eligible to apply and I assume among White and Asians it's 23 therefore above twelve and a half percent to get your average. 24 A That's correct. 25 Q And I assume there are more particularly White students, GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 61 1 the higher percentage who graduate from colleges and -- I'm 2 sorry, from high schools across the state. 3 A Correct. 4 Q So even the people who are eligible to apply to for the 5 University of California there's a vast disproportion in favor 6 of white students. 7 A There definitely is, yes. 8 Q So even if you conducted a lottery of the people who sort 9 of met the basic requirements, doesn't come anywhere to making 10 your university look like California, the population. 11 A That is correct. 12 Q Dean Garcia, you've talked about outreach and spending 13 thousands of dollars and as the dean calling people on the 14 phone, to get people to come, what has that done? 15 A Well, you can see at Berkeley, we're not even close to 16 being back to where we were in the pre 209 era. We've lost 17 forty-two percent of under-represented minority students. 18 Q And is that outreach itself now under legal question in 19 the state of California? 20 A Yes, it is, very much so. 21 Q Because of what? 22 A Because of its targeted nature. We have been -- we've 23 interpreted 209 essentially to direct us as a university at 24 least to use race and gender and ethnicity for purpose 25 admission. However, we have tried very, very hard to direct our GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 62 1 multi-million dollar outreach efforts to those students that 2 are identified as under-represented minorities, and to 3 low-income students. 4 Q The court is now saying you can't use race as a factor 5 in admissions or even a factor in outreach. 6 MR. KOLBO: Objection, your Honor, to foundation of 7 that question. It's a legal question. 8 MR. WASHINGTON: He's the dean of education -- 9 THE COURT: He's already answered it. 10 BY MR. WASHINGTON: 11 Q Do you know the phrase holistic -- 12 THE COURT: I have read the case. 13 Q Yes, I do know the phrase holistic file review. 14 THE COURT: I'm sorry, holistic -- 15 MR. WASHINGTON: File review. 16 BY MR. WASHINGTON: 17 Q Now, that's not a happy phrase, but tell me what that 18 means. 19 A That means that for decisions having to do with 20 admissions at least in the university, we look very 21 holistically at a set of variables that we identify into a 22 number of categories, some academic, some non academic, some 23 related to leadership, some related to the circumstance the 24 student may have been in, et cetera. But more holistically an 25 attempt to try arrive at some final decision about whether that GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 63 1 student should be admitted or not admitted. 2 Q Has that plan been tried at the University of California? 3 A It's been tried at the University of California Berkeley. 4 Q And what's been the result of that? 5 A We have -- this is our first entering freshman class 6 using holistic review of all students. And we have not been 7 able to achieve any substantial increase in a number of 8 under-represented minorities at Berkeley. 9 Q Why is that? 10 A All the issues we've talked about before. Issues of 11 whether or we're post 209 getting students to apply. Whether 12 we are still using the SAT in a sort of -- indiscrete or 13 discrete way to deal with final decision. So there are a number 14 of intrinsic variables in the process and the measures we use 15 that essentially not at least yet demonstrated any change in 16 the color, in the nature of the entering freshman class. 17 Q Would it be fair to say that even holistically reviewing 18 the files, the test score gap, the grade point average gap, the 19 score gap, all of those things which you have testified are 20 ineffective with racial prejudice, racial discrimination are 21 still there? 22 A Unfortunately they are still there. 23 Q And even if you look through the whole file and if you 24 can't take race into account, you can't admit enough 25 under-represented minorities. GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 64 1 A We know empirically that's the case, we did not admit 2 more. 3 Q Dean Garcia, I'm going to go back to the Mission High 4 School. Tell me just a minute about that high school again. 5 A It is in the central urban area of San Francisco in part 6 of the valley, the low flat area of San Francisco. This is an 7 area that has essentially been the home for immigrant and 8 minority families, African American, and Latino in the last 9 three to four decades. Prior to that immigrant Irish, immigrant 10 Italians, et cetera. 11 Q What kinds of programs does the Mission -- is the name of 12 the school the Mission High School? 13 A It's called Mission High School, yes. 14 Q What kind of programs does it offer? 15 A It's a comprehensive high school. It intends to just 16 offer a comprehensive set of curriculum which would allow a 17 student to go to the university either any of the community 18 college or CSU or UC campuses. It also provides vocational 19 training. So it's a comprehensive high school. 20 Q How is it on certified teachers? 21 A About thirty percent of its teachers are not certified, 22 that is, do not meet the basic requirements to receive a 23 teaching credential in California. 24 Q How is it on its facilities? 25 A It is the oldest high school, of course, in San GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 65 1 Francisco. And it is -- does not have up-to-date science 2 laboratories. It has only recently been wired for computer 3 access and Internet access. And continues to fall behind 4 resources of other schools in the district. 5 Q How is it on its course offerings? 6 A It does the best it can. It offers aid to now to -- aid 7 to courses required by the University of California and Cal 8 State system, but it does so to a lesser degree than any other 9 high school in San Francisco. And does so significantly less 10 than the more prestigious high school in San Francisco 11 identified as Lowel High School. For example, the number of 12 honors courses is one third less than Lowel. The number of AP 13 courses is seventy-five percent less than Lowel High School. 14 And so the opportunity structures for students attending 15 Mission High School are substantially reduced. 16 Q Are there good students at Mission? 17 A There are excellent students at Mission. 18 Q Trying hard? 19 A They are trying hard, working very hard. 20 Q How many students if you know from that high school were 21 able to go to the University of California at Berkeley entering 22 class last year? 23 A Last year there was none. 24 Q How about the year before? 25 A None. GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 66 1 Q How about the year before that? 2 A None. 3 Q How far is Berkeley from Mission High School? 4 A About fifteen miles. 5 Q Dean Garcia, we've talked a lot about California, 6 California I guess advertises itself and some of us think of it 7 as the future of the nation. Let me stick for a moment to the 8 situation of Latino students. You grew up in the Southwest, 9 New Mexico, in Arizona, in Colorado. The situation you've 10 described for Latino students in California, how does it 11 compare to the situation in Arizona, New Mexico? 12 A It's very similar. 13 Q Texas? 14 A Texas schools, the K-12 crisis is there. 15 Q Florida? 16 A Florida, a little different, but for Puerto Rican 17 students in Florida, the same. 18 Q New York? 19 A They're similar. 20 Q Illinois? 21 A Similar. 22 Q The University of Michigan Law School says it's a 23 national law school. We've had testimony before you came from a 24 Latino student from Chicago. If the University of Michigan 25 drawing people, Latino and Latina students from wherever GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 67 1 they're drawing them in the country, are the schools that 2 they're coming from and the situation they face, in your view, 3 fundamentally different from what you've described in 4 California? 5 A I don't believe so. 6 Q In terms of the effect of the and of affirmative action 7 on undergraduate institutions, let's say it was not at the 8 University of California at Berkeley but in Arizona, New 9 Mexico, Colorado, would it have the same kind of effect in your 10 opinion? 11 A It would have the same effect in highly selective and 12 competitive universities. 13 Q And we know the University of Michigan Law School draws 14 most of its students, many of its students, from those kinds of 15 facilities, those kinds of schools, would the effect of the end 16 of affirmative action be to dry up the supply of those 17 students? 18 A In my opinion over time it's exactly what's happening. 19 Q Now, in your report you said that one of the things you 20 saw as a result of 209, the end of affirmative action in 21 California, has been a rending of the social fabric. What do 22 you mean by that, sir? 23 A What I mean is that a very powerful signal has been sent 24 by Proposition 209 typically with regard to access to higher 25 education, to the premier institutions those revered by all. I GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 68 1 need to point out that a recent survey done by our Office of 2 Development asked citizens of California how they perceive the 3 University of California versus other institutions in the state 4 reiterates that our citizens do perceive the University of 5 California as sort of a higher educational jewel. It is 6 something they revered, support. And that's across by the way 7 ethnic groups, racial groups. What we see essentially in 209 8 is the beginning of unraveling of that perception with regard 9 to higher education at least. I don't know if that's the case 10 in areas of employment, private sector activity post 209, but 11 it's clearly the case that we're seeing in our social 12 institutions, those that serve predominantly minority 13 individuals in California, there's clear indication that 209 14 has separated us instead of any effort to bring us together in 15 the state -- in a state, by the way which is just becoming more 16 diversed every day, and where every effort should be made to 17 bring people together as oppose to separate us. That fabric is 18 beginning to tear in very interesting ways particularly when it 19 comes to our intellectual elites in which our Latino families 20 are beginning to perceive that they no longer have access to 21 that, the bridge to the intellectual institutions that they 22 revere. 23 Q Dr. Garcia, just a couple of more questions. California 24 enacted a ballot proposition which we could argue somewhere 25 else about the wording of that and what the vote was and all GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 69 1 that, but what's being asked here is something much deeper than 2 that. It's being asked that the federal constitution prohibit 3 the use and consideration of race in the admissions of people 4 at the law school by implication anywhere else, what is the 5 message from California as to what that would mean? 6 A In our parlance don't go there. We know the kind of 7 energy, effort extended after. We have lived with that kind of 8 a decision in California, and we will probably live with this 9 mistake for quite some time. If you, in fact, believe that 10 diversity and equity for under-represented individuals in your 11 most elite institutions is something that you embrace, then 12 affirmative action must remain as one of many efforts to allow 13 you achieve that goal. 14 Q Is it an essential effort? 15 A I believe it is an essential effort and the data from 16 California couldn't be clearer. 17 Q Without that effort, would it be fair to say that what we 18 would have was a double standard in admissions, a double 19 standard which favored white students at all levels? 20 A That's what we have in California, and you would have it 21 here. 22 MR. WASHINGTON: I have no other questions for Dean 23 Garcia. 24 THE COURT: Okay. Maybe we should -- remember, 25 we're going to break today around 4:15. I have no other GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 70 1 matters scheduled today other than this case. Why don't we 2 take our morning break now, and we'll take a real fifteen 3 minutes. 4 (Court recessed, 10:50 a.m.) 5 (Court reconvened, 11:15 a.m.) 6 THE COURT: You may proceed. 7 CROSS-EXAMINATION 8 BY MR. PAYTON: 9 Q Good morning, Dean Garcia. 10 A Good morning. 11 Q I want to begin by asking you some questions about the 12 power of racial stereotypes and I want to start with the 13 example you gave of peopricitos. That's a racial stereotype; 14 is that right? 15 A Yes, it is. 16 Q And it's a very negative racial stereotype. 17 A Correct. 18 Q That has the effect of limiting what the possibilities 19 are of the person who is seen in that light; is that correct? 20 A That's correct. 21 Q Can't be more than just peopricito. 22 A That's right. 23 Q And the power of that is that the stereotype is often 24 internalized by the person that is imposed on.'? 25 A That's correct. GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 71 1 Q How does that work? 2 A We essentially being to think of ourselves first and 3 foremost with regard to how other people think of us so that we 4 don't have any internal set of guidelines or signals to 5 determine who we are other than the messages we get from others 6 with regard to we are. So at least theoretically that's how I 7 would argue people take on any attributes of peopricito. 8 Q You gave an example of something that happened to you 9 personally where someone assumed and imposed a stereotype on 10 you and, therefore, assumed that you were a gardner. 11 A Correct. 12 Q And I think you described that as something -- and it was 13 a serious thing, but you described them as rather silly. I 14 think that's just -- and if I'm wrong you just correct me -- an 15 offhand way you sort of deal with these things. It's not 16 really silly; is it? 17 A Right, that's correct, because I get plenty of other 18 signals in other domains of my life that I indicate that I'm 19 much more than a gardner. 20 Q Now, there are racial stereotypes and ethnic stereotypes 21 that are quite negative that are the result of all of our 22 cumulated influences and history; is that correct? 23 A Correct. 24 Q There are also racial and stereotypes that are perceived 25 as positive when they apply to, say, white males; is that GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 72 1 correct? 2 A That's correct. 3 Q Where they are assumed to not be the gardner, to be the 4 person who hired you. And we haven't heard any testimony that, 5 but there groups of people who, in fact, are benefited by the 6 stereotypes that others of them; is that right? 7 A That's correct. 8 Q Are those stereotypes and the images also internalized by 9 the persons that they're projected on. 10 A Oh, I think so. The best data we have in education is in 11 the area of science education where you can look elementary and 12 middle school and high school science classes where teachers 13 essentially call on boys. The expectations are very different 14 for boys with regard to the domain of science so that girls are 15 not often asked to do -- to participate in the science fair, 16 are not called on in physics and chemistry classes and biology 17 classes to perform or to assist the professor or teacher in his 18 activities including minorities are positioned in that same 19 way, in a negative light, not in any intent on behalf of the 20 teacher, but that's just an ongoing stereotype. 21 Q I want to talk a little bit about what Claude Steele has 22 shown here. You described his research on stereotypes; right? 23 When African-American and Latino students take the test that 24 you were describing in a context in which they perceive no 25 direct or indirect threat how do they do? GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 73 1 A They do well. 2 Q And it is when that test is given in a context in which 3 the circumstances communicate them directly or indirectly that 4 they are in a situation where the stereotype says they should 5 not do well, that's when they don't do well. 6 A That's the fascinating part about Claude's data is that 7 it can be direct or indirect, that is, the triggering of 8 something like an ability test, a high stakes ability test. 9 Even though no information is given that African-Americans or 10 women or other minorities do badly on it, that still the test 11 differentials are there and scores. 12 Q I want to switch subjects and I now want to talk about 13 California, and what's been going on in California. Pre the 14 use of race in admissions, we say pre 209, but I take it we're 15 suppose to say pre SP1 and -- 16 A Correct, SP1 -- 17 Q Pre SP1 when race was one of the factors that was taken 18 into account. UC Berkeley and UCLA had much more diversed 19 student bodies; is that right? 20 A That's correct. 21 Q And that was in the context of all of these continuing 22 and awful problems in K through 12; is that correct? 23 A That's correct. 24 Q That some number of Latino and African-American students 25 nevertheless made it through that and managed to get into the GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 74 1 UC Berkeley, UCLA. 2 A Correct. 3 Q And as I understood your description of how the UC system 4 works, only twelve and a half percent of the students in the 5 state are eligible? 6 A That's correct. 7 Q And that eligibility is based upon high school grades and 8 the grades in a specific curriculum? 9 A Correct. 10 Q So all of those Hispanic and Latino and African-American 11 students that go into the UC Berkeley and UCLA prior to SP1 met 12 those eligibility requirements? 13 A That's correct. 14 Q Now, what happened in California post SP1 you've 15 described and I'm going to characterize it in a way that is -- 16 it's bleak; is that a fair characterization? It sounds bleak. 17 A Bleak and frustrating is what I would say. 18 Q That it must continue to be the case that there are still 19 all those academically eligible Latino students and 20 African-American students in California that would have gotten 21 into UC Berkeley and UCLA before SP1 and now they don't. 22 A My best guess is that for Latino students there are 23 actually more of those students. 24 Q But those numbers have gone up although the admittees 25 have gone down. GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 75 1 A Correct. 2 Q So now we have a UC system that has far, far fewer Latino 3 students and African-American students. I'm going to focus on 4 just Berkeley and UCLA where those numbers have dropped 5 according to Exhibit 113 -- 213. I want to ask you as Dean of 6 the School of Education, I want to call on your educational 7 expertise, about what are the consequences of that drop in 8 Latino students and African-American students for those Latino 9 students and African-American students who get in today. So 10 those who got in what are the consequences for them of so many 11 not getting in? 12 A Sure. First I would say I've seen it personally that 13 there is not the same feeling available to them as was 14 available to students pre 209. There's just fewer numbers. And 15 numbers do make a difference. The kind of support systems that 16 you can offer, the kind of support students offer each other 17 essentially diminished because of the numbers. I think 18 secondly I spoke this earlier is the general climate is that 19 209 has generated a climate at Berkeley and Los Angeles -- I'll 20 speak more directly of Berkeley that those students for 21 whatever reasons feel much less welcomed. And less enthused 22 about being at Berkeley than pre 209. So unfortunately the 23 effect has not only diminished the numbers but have negative 24 effects on those students who are there. 25 I would -- it's early to tell, but I can't help but GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 76 1 think that this would have effects on their academic 2 accomplishments at Berkeley, their ability to do well, and 3 secondly their retention and their eventual graduation. 4 Q Let me ask you about their personal education, that is, 5 college is sort of which you pass through on your way to being 6 an adult and independent. And there's more to college than 7 simply going to class and getting grades; is that fair? 8 A That's correct. 9 Q What are the consequences for the Latino students and 10 African-American students in their personal education, and 11 their ability to mature as healthy contributing adults once 12 they graduate. 13 A Keep in mind that Berkeley and UCLA and other selected 14 UCs make no bones about what they're doing in terms of 15 preparing the leadership for the future. So that I think 16 what's a very interesting for our Berkeley students 17 particularly Latino students is that the atmosphere for 18 developing that leadership has changed dramatically. Who they 19 are and what kinds of perceptions they have about the 20 contributions they can make to the state of California, whether 21 it be economically or politically or socially is completely 22 different than during the times of their former colleagues 23 several year ago. 24 Q Let me ask you about the White students. Are there 25 educational consequences for the White students at Berkeley and GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 77 1 UCLA of their being so many fewer Latino students and 2 African-American students among their classmates? 3 A I can speak to levels, one more comprehensively, 4 acknowledging a set of research on the effects of segregation 5 on White students so that when White students are segregated 6 with other White students and no interaction with students of 7 other races, or other ethnic groups, then their own perceptions 8 of themselves and of others, are very different than where is 9 the segregation. That data is not only true in the United 10 States but also in Canada we have ethnic group differences and 11 programs to bring students together to unite them for reasons 12 that have to do with enhancing their own abilities to deal with 13 difference, ethnic difference. So at Berkeley what we're 14 finding among White students -- 15 THE COURT: Let me ask you one question: You said 16 something Canada -- I'm sorry to interrupt you. You said 17 something about Canada. Have you studied -- I don't mean 18 studied, but do you know about Canada? 19 THE WITNESS: I do know a little bit about it 20 because my own work has to do with areas of language and 21 cultural difference. And Canadians deal with issues of 22 francophones and englophones, particularly in Montreal. And 23 the differences that -- the kind of stereotypes they have of 24 each other, the kind of ethnic difficulties they have, and the 25 ways in which they try to integrate those students to try to GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 78 1 overcome those. 2 THE COURT: And what methods do they use -- 3 THE WITNESS: Well, they've used a number of 4 different methods. Everything from making sure that students 5 go to the same schools; that they learn each other's language, 6 that they spend time in each other's families and communities, 7 et cetera to overcome this sort of very negative perceptions 8 -- 9 THE COURT: Do they have anything similar to 10 affirmative action there? 11 THE WITNESS: I don't know if they do or not. I've 12 studied the public schools in Canada. 13 THE COURT: How about -- I don't know anything other 14 than Windsor, which is south of us here, do they have in terms 15 of minority segregation there, if you know, in terms of their 16 schools? 17 THE WITNESS: They do have minority segregation, 18 sure. 19 THE COURT: I'm sorry, I didn't mean to interrupt 20 you, but I had never thought about Canada until you said it. 21 I know I interrupted right in the middle, but all of a sudden 22 the light went, Canada. 23 MR. PAYTON: You know, you have questions, I want -- 24 THE COURT: I really shouldn't. He was right in the 25 middle of a thought. As my daughter used to say when she said GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 79 1 something she shouldn't, she would say, it just fell out. 2 BY MR. PAYTON: 3 Q I'm going to ask you about -- I have an exact term here, 4 but sort of the health of the campus to day versus of the 5 health of the campus before SP1, that is, have you been able to 6 perceive anything about sort of the overall feel of the campus 7 in an educational matter versus -- now versus then. 8 A I think and the chancellor has spoken about this, I think 9 a less diversed campus produces a less intellectually, inviting 10 and less intellectually invigorating campus. So I don't feel 11 out of balance in using some of those words that he's used in a 12 post 209 climate. The loss of diversity particularly 13 under-represented minorities at Berkeley, I think he would 14 argue that -- and I would argue, it produces a less inviting 15 and less intellectually invigorating campus. 16 Q Now, the student body at Berkeley and at UCLA, both of 17 them constrain substantial numbers of Asian students; Isn't 18 that correct? 19 A That's correct. 20 Q Have the Asian students been effected by this, 21 educationally and personally, by this drop in Latino and 22 African-American students, has that effected them? 23 A At least in forums that I've been at, Asian students have 24 expressed the same concern as White students and 25 under-represented minorities is that a diversed campus would be GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 80 1 good for all of them. So I think they would also feel that the 2 quality of the educational experience at Berkeley is lessened 3 by eliminating diversity. 4 Q I want you to take a view as the Dean of the School of 5 Education, and just take a larger view of all of this. What 6 has this meant with respect to the mission of the University of 7 California in particularly its two flagship schools, Berkeley 8 and UCLA, what has it meant for ability of those two schools to 9 accomplish their educational mission? 10 A I believe we're further away from that goal. I don't 11 want you to misread me, I don't think we were achieving that 12 goal in the pre 209 era, but I certainly think we're moving 13 further away from the mission which embarrasses diversity, 14 which the board of regents have articulated as a major goal for 15 the University of California in all its campuses not just some 16 of its campuses. And it's directly related to our 17 constitutional charge that we will serve all the people of 18 California. 19 Q Now, California, I believe this is right, is the most 20 racially and ethnically diversed state in the United States; is 21 that correct? 22 A As far as I know, that's correct. 23 Q It has substantial populations of almost every ethnic 24 group that we have the United States; is that fair? 25 A I believe that's correct. GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 81 1 Q And how has that effected the educational mission of the 2 University of California and especially at its flagship 3 schools, does that cause you to look at your mission 4 differently, adjust your mission, how does that work? 5 A I believe we still attempt to try to understand who it is 6 we're serving. We're a public institution. Certainly an 7 institution supported by taxpayers of California. And our 8 mission is still related to those individuals who reside in the 9 state and essentially support the University of California and 10 all it stands for, in its research, in its teaching, in its 11 scholarship, in its service. And I think we haven't 12 essentially changed our mission. What we've realized is that 13 the demographics of California have substantially moved us in a 14 direction of trying to address that demographic shift. 15 Q Now, California may be the most diversed state in the 16 country, but the entire country is, in fact, more diversed; is 17 that fair? 18 A That's fair it say, yes. 19 Q You were talking about Latino students, you were asked a 20 series of questions about Latino students in Illinois, Texas 21 and Florida. In fact, there are Latino students all across the 22 United States; aren't there? 23 A That's correct. 24 Q And there are African-American students all across the 25 United States. GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 82 1 A That's correct. 2 Q And Asian students all across the United States. 3 A That's correct. 4 Q And I think all of the states are becoming aware of their 5 increasing diversity. 6 A That's particularly true in some states where you would 7 expect that wouldn't be the case, in the midwest and in the 8 southern states. 9 Q And I guess the larger question that this whole case is 10 about is what should the role of higher education be with 11 respect to dealing with that ever increasing diversed 12 population and how it serves that ever increasing diversed 13 population. What are your views on just the larger view of the 14 role of higher education in dealing with our increasingly 15 diversed society? 16 A In general I think higher education has a particular role 17 in the society. It prepares individuals to take on more 18 responsibility in society than the K-12 system does. And, 19 therefore that system of higher education wherever it sits, in 20 whatever state or locale in this country, needs to be 21 responsive to and inclusive of those individuals that are part 22 of the demographics it serves. So as the United States becomes 23 more diverse I think its responsibility is to be responsive to 24 and inclusive of that diversity. 25 MR. PAYTON: Dean Garcia, thank you, very much. GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 83 1 THE WITNESS: Thank you. 2 CROSS-EXAMINATION 3 BY MR. KOLBO: 4 Q Good morning. 5 A Good morning. 6 Q We met last summer. 7 A Yes. 8 Q My name for the record is Kirk Kolbo, and I represent Ms. 9 Grutter in this matter. As Dean of the Graduate School of 10 Education at Berkeley, you're familiar, quite familiar with the 11 racial composition of that school; correct? 12 A Yes, I am. 13 Q In fact, you have responsibility I think you testified 14 for admissions, some responsibility for admissions at the 15 graduate school level; true? 16 A Yes, I oversee admissions. 17 Q And am I correct you consider the Graduate School of 18 Education at Berkeley to be racially diversed? 19 A I do at this time, yes. 20 Q And you consider it be racially diversed with respect to 21 under-represented minorities; correct? 22 A Could be more diversed, but it is more diversed than 23 other units on the campus. 24 Q You would describe as diversed, correct? 25 A I would describe it as diversed. GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 84 1 Q In fact, the under-represented minority population -- let 2 me back up a little bit. When we're talking about 3 under-represented minority population I think there's kind of 4 an understanding in this case what that refers to. I want to 5 make sure that you and I are communicating correctly. We're 6 talking about African-Americans, Latinos, Chicanos, sometimes 7 Hispanics is a designation used here and Native Americans; 8 correct? 9 A That's correct. 10 Q Am I correct that about thirty percent of the student 11 body at the Graduate School of Education at Berkeley consists 12 of those under-represented minority students? 13 A I think this year we dropped about twenty-eight percent. 14 Q Okay. I think when I talked to you in June it was about 15 thirty percent. And this entering year's class is twenty-eight 16 percent. Is that admissions or is that the actual enrollment? 17 A I think it's the actual enrollment. 18 Q Were the admission figures higher -- 19 A No, they were also lower. 20 Q About the same? 21 A About the same. 22 Q And you consider that diversed? 23 A I consider that diversed. 24 Q You'd like to see it more diversed? 25 A I definitely would like to see it more diversed. GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 85 1 Q Is there a level at which you believe it ought to be in 2 terms of the under-represented minority population at the 3 graduate school? 4 A I wouldn't set any goals. I would say that our mission 5 in education in particularly is to generate a set of 6 individuals who can understand the diversity students that they 7 will serve. So I would use that more as a broad brush notion 8 of how we need to move. And clearly a diversed teacher pool, 9 educational and professional pool, serving those students I 10 think is better for those students. 11 Q Am I correct that you believe that the racial diversity 12 with respect to under-represented minorities should probably 13 mirror or reflect the population of California at the education 14 school; is that fair? 15 A I haven't thought about it in that way. And I haven't 16 articulated that either -- 17 Q You do remember taking your deposition in this case, or 18 having it taken, I guess. 19 A Yes. 20 Q Do you have a copy of that? If you would turn to page 91 21 of your deposition. Actually 90 and 91. 22 A Okay. 23 Q And there is a question on page 90, "Do you have an 24 opinion on what is a model diversed campus in terms of certain 25 percentages or proportions?" And you gave an answer -- and GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 86 1 feel free to read the entire answer there. At some point you 2 said, "It ought to be at least somewhat representative of the 3 population of the state." Do you see that there? 4 A Yes, I do. 5 Q And you agree with that? 6 A Yeah, as a model -- but I haven't thought of that in 7 terms of my own work as Dean as whether that's the way we ought 8 to be guided. 9 Q Okay And you have graduates whose education is now, 10 what, four or five years post Prop 209? 11 A Four years, yes, four or five years. 12 Q And I take it that the Graduate School of Education 13 considers itself bound by the requirements of Proposition 209; 14 true? 15 A It does. 16 Q That means that the School of Education in making 17 admission decisions does not consider the race of an applicant 18 to the school; correct? 19 A That's correct. 20 Q You look at a lot of other factors, but you don't look at 21 race; true? 22 A That's correct. 23 Q And you've been able to admit approximately -- around 24 thirty percent of your students being from under-represented 25 minority groups without considering race as a factor in the GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 87 1 admissions process; true? 2 A Correct. 3 Q Am I correct that one of the reasons you've been able to 4 do that is the Graduate School of Education places a lot less 5 importance on standardized tests like the GRE than does say an 6 undergraduate school with respect to the SAT score. 7 A That's one reason, but I'll also created a recruitment 8 team to move out into institutions throughout the United States 9 to recruit in areas in which we could try to bring minority 10 students to the graduate school. 11 Q Right, but in making the actual admissions decision you 12 did not consider the race of those applicants. 13 A That's correct. 14 Q You looked at their individual background, their personal 15 essays, recommendations a lot of other things that are 16 considered but not race; true? 17 A That's correct. 18 Q Have you -- am I correct and I think was made clear from 19 your testimony here this morning or yesterday you participate 20 in making admissions decisions, first of all; true? 21 A Yes, I look at the recommendations made by the faculty 22 and act on those recommendations. 23 Q And you generally as I understand it, your practice is 24 not to give really any consideration to the GRE in making 25 admissions decisions; true? GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 88 1 A Personally in my own field I do not use that. 2 Q And are there other faculty that are of the same mind as 3 you? 4 A I believe there are, yes. 5 Q In making admissions decisions? 6 A Correct. 7 Q Okay. And am I correct that's one way to achieve a more 8 diversed student body with respect to under-represented 9 minorities students is to give less emphasis or no 10 consideration at all to take the GRE in making admissions 11 decisions; true? 12 A I believe so, yes. 13 Q And you have found, am I correct, that you can enroll, 14 admit and enroll a highly qualified, very student body without 15 giving any consideration to the GRE; true? 16 A We haven't done that because we still require students to 17 take the GRE and some of our faculty may use that. What we've 18 done is an analysis whether it does predict success in the 19 school. That's the best I can do. 20 Q And does the GRE predict first-year performance -- or I 21 guess graduate students don't have first year, second year 22 necessarily, but is there some validity to the predictor value 23 of these tests, GREs, for your graduate students? 24 A We've asked that question with regard to how students 25 reach and surpass milestones in the graduate process. We don't GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 89 1 typically do a sort of high stakes first review. We look at 2 the extent to which students complete their course work with 3 the satisfactory GPA at a 3 point or above. For the first two 4 years, we look at whether or not they complete position papers, 5 and they submit their proposal for dissertations, whether 6 that's approved. These are milestones towards final completion 7 of their graduate program. We cannot make any relationship, a 8 positive relationship between the GRE score and the completion 9 of those milestones. 10 Q Okay. But with respect to the GRE, you mentioned, you 11 testified that the state of California requires that they be 12 part of the application; right? 13 A The University of California. 14 Q Right. But you're not required -- you're not aware of 15 any legal requirement that the GRE be given any specific level 16 of consideration in the admissions decision; are you? 17 A That's correct. 18 Q And you, in fact, do not give it any consideration. 19 A I do not. Some of our faculty do. 20 Q Okay. And do you find personally that the students that 21 you admit without any consideration given to GRE scores is that 22 a highly qualified strong applicant pool? 23 A As far as I know, yes. 24 Q Do you have any opinions in this case with respect to 25 whether the LSAT ought to be used in considering applicants to GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 90 1 law school? 2 A My opinions I'd have to say are little further removed 3 than the GRE because I'm not familiar with the LSAT in the same 4 way I'm familiar with the GRE. 5 Q So you don't have any opinions on whether or not -- 6 A I think -- my opinions are further removed. I would say 7 like the GRE if the LSAT has not value in predicting how 8 students will actually do in meeting set milestones in a law 9 school, I would say that, again, I would not recommend use of 10 LSAT. 11 Q You would advise that it not be considered in making 12 admissions decisions? 13 A That's right. Or not be considered in and of itself. It 14 could be used as we use the GRE as one indicator of academic 15 proficiency, but not the sole indicator. 16 Q Well, do you have an opinion that it could also not be 17 used at all in the consideration of applicants just as you 18 don't consider the GRE in the consideration of applicants to 19 your school? 20 A Well, maybe I need to go back a little bit. We certainly 21 take GRE score into consideration, but we don't use it as a 22 predominant feature of a student profile. And so I would say 23 that probably ought to happen at the law school. 24 Q Am I correct that you are of the opinion that there is a 25 correlation between the selectivity of a school and the level GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 91 1 of racial diversity that school might be able to achieve 2 particularly with respect to under-represented minority 3 students? 4 A Only with regard to how we are presently operating at the 5 University of California. 6 Q And at the University of California, the more selective 7 the school is the more difficult it is to proving to admit and 8 enroll a racially diversed student body with respect to 9 under-represented minority students? 10 A In the last four years, yes. 11 Q And that selectivity is based primarily on the 12 consideration -- or one of the criteria on which the schools 13 are highly selective particularly like Berkeley and UCLA and 14 San Diego is with respect to the use of the SAT scores. 15 A Correct. 16 Q And is it your opinion in the ideal world, in your view 17 should Berkeley and UCLA and San Diego perhaps stop considering 18 the SAT score as something that's used in making admissions 19 decisions? 20 A Yes. 21 Q And you believe that those schools could enroll a highly 22 qualified, intelligent, vibrant student body without the 23 consideration of the SAT scores in making admissions decisions? 24 A Without consideration of the SAT scores. 25 Q That's true? GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 92 1 A They may use other achievement score, but not the SAT. 2 Q They could look at a lot of other factors. 3 A A lot of factors. They could look at other tests, but 4 not the SAT. 5 Q But a lot of those schools have just chosen not to do 6 that; true? 7 A That's correct. 8 Q Berkeley, continues to choose the -- administrators at 9 Berkeley choose to rely significantly on SAT scores in 10 enrolling undergraduate students; true? 11 A In the present admissions process the SAT does not have 12 that significant role. 13 Q It has a reduced -- 14 A At UCLA it does, and at San Diego it does. 15 Q And at Berkeley? 16 A It does not. We have a holistic admissions process in 17 which the SAT is one of many variables for all students. 18 Q And you agree in doing it in that fashion. 19 A Yes, I do. 20 Q I'd like to ask you about some of the -- we've spent some 21 time taking a look at a enrollment figures, and I think it's 22 Exhibit 2 -- 213 I want to start with. Am I correct that 23 overall, under-represented minority population in the UC system 24 has declined by one percent in the post Prop 209 era? 25 A That's correct. GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 93 1 Q So much of what has happened is a redistribution of 2 students within the UC system; true? 3 A You might argue that it's happened. Keep in mind that 4 prior to the adoption of 209 that we were actually making 5 gains. One of the things I testified to is that we would 6 actually be further out ahead without the redistribution 7 effect -- 8 Q But one of the explanations is a redistribution; true? 9 A That's a possible explanation. 10 Q And you wouldn't expect to see an eighty-seven percent 11 increase at Riverside, for example, but for the Proposition 209 12 initiative? 13 A I might have seen something close to that. The 14 chancellor of Riverside has been very, very active even before 15 209 in outreach activities. When we conducted our eligibility 16 task force, we visited Riverside. He was new there. This was 17 pre 209. This is in '93, '94. And he was very active and even 18 during those periods was producing gains at Riverside. 19 Q Would you agree that one of the consequences of 20 Proposition 209 is going to increase the ratio and ethnic 21 diversity of Riverside with respect to under-represented 22 minority students? 23 A I think that's possible, yes. 24 Q And do you consider that to be a positive development, 25 Proposition 209? GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 94 1 A I would not consider it a positive development within the 2 context of the losses at the losses at the other campuses. If 3 I were to have seen that eighty-seven percent without the 4 losses, I would consider it positive. 5 Q I'm just focusing right now on Riverside. Is it not a 6 good thing for Riverside that it has a more a rationally and 7 ethnically diversed student body with respect to 8 under-represented minority students, is that a good thing? 9 A I would predict that -- I would say that the faculty, the 10 students and the chancellor of Riverside would say not with the 11 cost of losing diversity at the other campuses. 12 Q Okay. We can talk about cost and benefits, but I'm 13 talking about just the increase in diversity at that school, is 14 that a good thing? I understand there may be a cost, but is 15 that a good thing in itself? 16 A In the broader context of things that has occurred even 17 in your own conclusion at the cost of the lost of diversity at 18 the other campuses. That is not a good thing. 19 Q And for Santa Cruise there's also been an increase in 20 diversity at least part attributable to Proposition 209; true? 21 A It's possible. 22 Q And I think you testified that at some point perhaps in 23 response to questions from Mr. Payton that there are 24 educational benefits associated with a racially and -- an 25 ethnically and racially diversed student body that pours over GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 95 1 to the White students that attend these schools; true? 2 A Correct. 3 Q And would it be true that the White students who are 4 attending Riverside have achieved in your opinion some benefit 5 from having a more racially and ethnically diversed student 6 body with respect to under-represented minority students? 7 A Have they achieved benefits? True, at the cost of the 8 losses of the benefits Whites students at Berkeley, UCLA, and 9 San Diego. 10 Q And you mentioned that there -- is it your opinion that 11 there are probably some under-represented minority students at 12 Riverside who but for Proposition 209 would be at UCLA, 13 Berkeley or San Diego? 14 A Very likely. 15 Q And you mentioned that students have -- Latino students 16 and other under-represented minorities have high aspirations 17 and there are many of them -- maybe it's not only at Riverside, 18 that would prefer to be at one of the more selective schools 19 like Berkeley, Los Angeles, San Diego? 20 A That's correct. I think that's probably true. 21 Q And they may not be there because of Proposition 209. 22 A That's correct. 23 Q Is it also fair to say that there are White students and 24 Asian American students at Riverside who would like also to be 25 at Los Angeles, Berkeley and San Diego? GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 96 1 A That's correct. 2 Q And they're just not there because Los Angeles, Berkeley 3 and San Diego are that much more selective schools. 4 A That's correct. 5 Q So it's true for a lot of folks that are at Riverside or 6 Santa Cruise, they wold like to be somewhere else -- 7 A What's different is that those White students aren't 8 essentially at Riverside at the cost of the loss of White 9 students at the other campuses. I think that's the real 10 critical issue. 11 Q There was some testimony yesterday about the California 12 State University system. I don't remember if you testified 13 whether or not -- has there been an increased level of race and 14 diversity at those schools, California State University system 15 because of Proposition 209? 16 A I believe there has, yes. 17 Q And for those schools is that itself -- I understand 18 there may be cost benefits analysis here, but the increasing of 19 racial and ethnic diversity at those schools, California State 20 University system schools, in terms of under-represented 21 minority students that's a positive thing for those schools; 22 right? 23 A I believe it is positive. 24 Q It's a positive certainly for the for the White students 25 in your opinion who benefit from an increase rationally and GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 97 1 ethnically diversed student body. 2 A Correct. 3 Q I think this clear to everybody but Proposition 209, we 4 talked about SP 1 or 2 -- 5 A SP 1. 6 Q Proposition 209 is in effect because the people of 7 California by majority vote enacted it; correct? 8 A Correct. 9 Q Do you have any knowledge or opinion as to whether there 10 are some private schools in California who have increased their 11 racial ethnic diversity as a consequence of Proposition 209, 12 that is, students attending private schools now in California 13 who otherwise might have been at Berkeley or UCLA or in the UC 14 system? 15 A I have some information about the private schools in 16 California and some schools outside of California that have 17 increased their diversity, and at least argue that they have 18 done so using affirmative action and taking students that would 19 otherwise have gone to Berkeley or UCLA. 20 Q Let me ask you -- I've got some more specifics sort of 21 mundane questions about admissions figures. I wasn't sure this 22 was clear and I want to find out if I'm right about this. 23 Actually there were fewer White students admitted in 2000 at 24 Berkeley than there were prior to the year prior to Proposition 25 209; true? GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 98 1 A I think -- yes, a hundred. 2 Q And there -- am I correct White students are actually -- 3 they're only about thirty percent of the admitted and enrolled 4 population at the University of California at Berkeley. 5 A A little bit more than thirty, yes. 6 Q Seventy percent come from other races and ethnicity. 7 A A little less than seventy -- 8 Q You would certainly describe the Berkeley campus as a 9 racially and ethnically diversed campus; would you not? 10 A It is less ethnically and racially diversed than pre 209. 11 Q Okay. Are you familiar with the racial and ethnic 12 diversity at the University of Michigan? 13 A I'm not. 14 Q Would it surprise you that Berkeley undergraduate campus 15 is more racially and ethnically diversed than the University of 16 Michigan undergraduate campus? 17 MR. PAYTON: Your Honor, I'm going to object because 18 it's misleading. He is including different racial groups in 19 using that term. 20 MR. KOLBO: I'm using all racial groups, your Honor. 21 MR. PAYTON: Not under-represented? 22 MR. KOLBO: All racial -- I asked is it not true -- 23 MR. PAYTON: All right. 24 THE COURT: Go on. 25 BY MR. KOLBO: GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 99 1 Q Is it not true that the University of California at 2 Berkeley is a more racially and ethnically diversed student 3 body -- or would it surprise you that it is more than the 4 University of Michigan College of Literature, Science and the 5 Arts? 6 A It wouldn't surprise me, no. 7 Q In fact, the Asian Americans are actually the largest 8 ethnic group represented at Berkeley; is that right? 9 A That's correct. 10 Q And there are substantially more Asians attending 11 Berkeley today than there were prior to Proposition 209. 12 A That's correct. 13 Q Do you think it's a good thing that there's more Asian 14 Americans represented at Berkeley today than there were five 15 years ago? 16 A I wouldn't have any problem with that. 17 Q You testified a couple of times I think that there are 18 about eighty thousand Latinos and Chicanos that graduate each 19 year from California; is that right? 20 A Yes. 21 Q Do you have any idea how many White students graduate 22 each year from California in the school system? 23 A I don't have the figures here, but we could find out. I 24 don't recall off the top of my head. 25 Q Is it some multiple of the standing population; do you GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 100 1 know? 2 A Yes. 3 Q Would it be twice as much, or three times, any rough 4 idea? 5 A I don't. I'm sorry. 6 Q But for only -- in the year 2000 it's something more than 7 eighty thousand; true? 8 A Oh, yes. 9 Q And in the year 2000, only two thousand four hundred and 10 forty-seven of those students were actually admitted to 11 Berkeley; true? 12 A That's correct. 13 Q The percentage of White students admitted to Berkeley has 14 actually declined, has it not? In the year prior to Prop 209 15 it was about thirty-nine percent and for this last year it was 16 twenty-nine percent? 17 A That's correct. 18 Q I want to ask you some questions about UCLA and to do so 19 I've got a document here that we've pulled off the UCLA 20 website. I can show that to you. 21 MR. KOLBO: If I may approach, your Honor? 22 THE COURT: Yes. 23 BY MR. KOLBO: 24 Q This is a -- I don't know what you call it, a press 25 release or something that's off your webpage, UCLA webpage, GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 101 1 dated November 30th, 2000; do you agree? 2 A Yes. 3 Q Am I correct that at UCLA they're reporting that the 4 African-American enrollment has actually increased, the 5 freshman class has actually increased this year from the past 6 year? 7 A Do you want to say how much? 8 Q It was originally -- am I correct that it was originally 9 -- the year before was 3.7 percent, and this year it's gone up 10 now to 3.8 percent? 11 A Big time. For those of us in education that is holding 12 steady at a time when the population is increasing that's 13 almost losing students. That's clearly the case of Latino 14 students even though this increase -- we've had this discussion 15 within the University -- an increase of less than one 16 percentage point given the twenty percent increase in high 17 school graduates per year is quite frightening actually. 18 Q Am I also correct that the UCLA was reporting that the 19 Chicano and Latino enrollment for freshman had increased from 20 twelve percent last year to 12.8 percent for the fall 2000? 21 A Yes, 12.8 percent. What I need to let you know is that 22 the number of high school graduates has increased by around 23 seven or eight percent. 24 Q And doesn't UCLA report that the number of White students 25 who had enrolled in the freshman class had actually declined GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 102 1 from last fall? 2 A Yes. 3 Q Dean Garcia, you testified I think a couple of times that 4 you I think a couple of times that you have a sense that 5 minority students, under-represented minority students have a 6 sense of not being welcomed at the Berkeley campus? 7 A Correct. 8 Q And I guess you suggested that the reason you believe 9 that's true had something to do with Proposition 209? 10 A It has something to do with it. 11 Q Let's talk about your own direct experience with respect 12 to the Graduate School of Education. Does the Graduate School 13 of Education welcome applications, admissions and enrollments 14 from under-represented minority students? 15 A Yes, we do. 16 Q Just as much as it did prior to Proposition 209? 17 A Yes, we do. 18 Q And is that true as far as you know of the faculty of the 19 Graduate School of Education? 20 A That's true. 21 Q You can't take race into account as a factor in making 22 admissions decisions, we've established that. 23 A Correct. 24 Q But that hasn't made your school any less welcoming to 25 under-represented minority students; has it? GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 103 1 A I think if you ask them they feel it's less welcoming, 2 yes. You're asking about myself as a faculty whether we 3 welcome, I think we have since Proposition 209. I've generated 4 a set of research centers around ethnicity and race in 5 schooling. I've generated a set of mentoring undergraduate 6 teams to ensure that we keep track of retaining 7 under-represented students. Focused specifically on 8 under-represented students. I talk to students at least a 9 twice a semester. They get free pizza if they come and talk to 10 the Dean. What I hear from them is that the graduate school is 11 less welcoming from their prospective after 209. I would have 12 to report their indications. 13 Q Whatever their prospectives are, it's certainly not in 14 your judgment based on anything that the Graduate School of 15 Education is doing. 16 A No, I hope not. 17 Q And is that true also with respect to the other students 18 at the Graduate School of Education, are they welcoming of 19 students from under-minority students? 20 A I believe so. 21 Q Certainly as much today as five years ago? 22 A I believe so. 23 Q Is it fair to say that the undergraduate of Berkeley, the 24 school is welcoming of the application, admission and 25 enrollment of under-represented minority students? GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 104 1 A I think it is, yes. 2 Q And just as well today as it was five years ago before 3 Proposition 209? 4 A Yes, it is. What we're living with is the aftermath of 5 209, and trying to enhance that position with those students 6 that are admitted. And we are under that 209 cloud, and that 7 climate that has come to the campus, we didn't have that 8 climate so that welcoming was clearly of a different sort than 9 it is although I have to admit we're still coming those 10 students. 11 Q When you talk about climate, as far as the climate of the 12 undergraduate school in terms of its official policies and its 13 faculty and its administration, it's not any less welcoming in 14 terms of its climate than it was five years ago -- 15 A Oh, I think the climate has changed. I think that the 16 kind of situation that we're in, is trying to overcome a 17 barrier in many students' mind that they are not welcomed 18 there. So I think that has changed the welcoming climate, if 19 you like the way you're describing it. With the absence of 20 209, it wouldn't be that way. I was there. 21 Q Do I understand that you perceive the same kind of 22 reaction from minority students that you have at the 23 educational school which is that the minority students in your 24 judgment, some of them, many of them, feel less welcomed at the 25 undergraduate school? GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 105 1 A I'd have to say that's true. 2 Q But that is not in your judgment attributable to anything 3 to in terms of the actions and policies of the school 4 administrators, and the policy and the -- 5 A I think it's directly related to the policy dictated by 6 209. 7 Q In terms of not being able to consider race in the 8 admissions process? 9 A That's correct. 10 Q Is it generally known in your judgment that one of the 11 consequences of Proposition 209, is that a student's race 12 cannot be considered in the admissions process? Is that 13 generally well known in your judgment? 14 A I believe it is, yes. 15 Q Is part of the climate that you've described do I sort of 16 get the sense that in your judgment there are a lot of folks at 17 Berkeley, students, faculty who are opposed to Proposition 209? 18 A I believe that's true. 19 Q And they believe that was a negative factor in terms of 20 the school policy? 21 A I believe so, yes. 22 Q I just want to ask you about stereotype threats. You've 23 never conducted any studies on this issue of stereotype 24 threats. 25 A I have not. GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 106 1 Q You've simply done some reading with respect to what 2 Claude Steele has done? 3 A Yes, reading and interactions with Claude and his 4 students. 5 Q Have you made yourself familiar the literature 6 surrounding whatever literature there is surrounding the work 7 that Claude has done? 8 A To some extent. 9 Q Have you read the work of Professor Bernadette Gray 10 Little with respect to Claude Steele's work? 11 A No, I have not. 12 Q You don't understand that she's criticized and disagreed 13 with his finding with respect to stereotype threat? 14 A Oh, I'm not aware of that. 15 Q Do I understand stereotype threat to be a part, that some 16 minority students feel that others except them to perform 17 poorly and as a result they self-fulfill that expectation? 18 A Under certain circumstances, yes. 19 Q And do I understand that part of the stereotype threat 20 has to do with the anxiety associated with high stakes test 21 taking? 22 A I don't if it's with the anxiety, but with high stakes 23 testing. 24 Q You would agree that SAT scores and LSAT scores those are 25 high stakes tests for everyone who takes them; true? GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 107 1 A Correct. 2 Q And in your judgment as an educator that can sort of 3 anxiety, can that effect performance on people's test taking 4 ability regardless of their race sometimes? 5 A Well, a little anxiety is good. A lot of anxiety is bad. 6 MR. KOLBO: May I have a moment to consult a moment 7 with my colleagues? 8 THE COURT: Of course. 9 MR. KOLBO: Your Honor, I would just ask to offer, I 10 don't think it has a number yet, whatever the next number is, 11 the UCLA document that I showed the witness. Other than that, 12 I have no further questions. 13 THE COURT: Does anybody have any objection? 14 MR. PAYTON: None, your Honor. 15 THE COURT: Received. Give us a number later when 16 you get a number. 17 MR. KOLBO: Thank you, your Honor. 18 MR. WASHINGTON: Your Honor, may we take a lunch at 19 this point? 20 THE COURT: I was going to take a lunch break at a 21 quarter to one. 22 MR. WASHINGTON: Could we take a short break at this 23 point? 24 THE COURT: I would be more than happy to take a 25 short break. Okay, we'll stand in recess. GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 108 1 (Court in recess, 12:15 p.m.) 2 REDIRECT EXAMINATION 3 BY MR. WASHINGTON: 4 Q Dean Garcia, if you would refer back to Exhibit 213, 5 please. 6 A Yes. 7 Q As I understand what this exhibit shows and your 8 testimony there's been a dramatic drop in under-represented 9 minorities at the most selective schools in the UC system. 10 A That's correct. 11 Q And that's continued despite all of the efforts at those 12 selective schools to engage in holistic file review and percent 13 plans, and this that and the other thing, it's continued over 14 the course of five years; correct? 15 A I'm afraid so, yes. 16 Q And the increase which Mr. Kolbo suggested at UCLA is 17 really continuing to be a drop given the increase in the 18 population; correct? 19 A That's correct. 20 Q Now, as I understand it, the increase in applications is 21 also making the schools going down this list, San Diego, Santa 22 Barbara, Urbine and Davis, we can expect to see greater drops 23 in that cascade as the years go on. 24 A It will become more selective. 25 Q And the -- as I understand what you're saying, the GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 109 1 description and the cascading effect is going to make these 2 schools become more segregated. 3 A That's correct. Withe a more segregated, we'll have a 4 two-tiered, two color system with the best universities serving 5 different students than our less equipped brothers and sisters. 6 In addition, the cascading will eventually end, and it will 7 move to the Cal states, and move to the community colleges. 8 This is very frightening. 9 Q Okay. Now, there are a hundred and seventy-some odd law 10 schools in the United States. And among there's the University 11 of Michigan and some others which are selective law schools 12 which use the LSAT and grade point. If they were forced to stop 13 considering race would it be your opinion that the students 14 from who are now going to those schools from under-represented 15 minority would then be cascaded down? 16 A From the law schools? 17 Q Yes. 18 A I don't see why the effect we see in selective 19 undergraduates absence of affirmative action would be any 20 different for the law schools. 21 Q And as they cascaded down, the other schools further down 22 that cascade would also being to get more applications until 23 they became more selective. 24 A That's what happened to us. 25 Q Would that in general then result in the two-tiered GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 11 FRIDAY, FEBURARY 9TH, 2001 110 1 system and the cascading effect and the resegregation of the 2 legal profession? 3 A That would be my fear is that your very selective law 4 schools are selective because they are the premiere law 5 schools. 6 MR. WASHINGTON: No further questions, your Honor. 7 THE COURT: Dean, thank you very much for spending 8 the night. 9 THE WITNESS: Thank you. [...]