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: 10 97-CV-75928 11 LEE BOLLINGER, JEFFREY LEHMAN, 12 DENNIS SHIELDS, and REGENTS OF 13 THE UNIVERSITY OF MICHIGAN, 14 Defendants, 15 -and- 16 KIMBERLY JAMES, et al., 17 Intervening Defendants. 18 ------------------------------------/ VOLUME 14 19 BENCH TRIAL BEFORE THE HONORABLE BERNARD A. FRIEDMAN 20 United States District Judge 238 U.S. Courthouse & Federal Building 21 231 Lafayette Boulevard West Detroit, Michigan 22 Thursday, February 15, 2001 23 APPEARANCES: 24 FOR PLAINTIFF: Kirk O. Kolbo, Esq. 25 R. Lawrence Purdy, Esq. 2 1 FOR DEFENDANTS: John Payton, Esq. 2 Craig Goldblatt, Esq. 3 Stuart Delery, Esq. 4 On behalf of Defendants 5 Bollinger, et. al. 6 7 George B. Washington, Esq. 8 Miranda K.S. Massie, Esq. 9 Jodi Masley, Esq. 10 On behalf of Intervening Defendants. 11 12 13 COURT REPORTER Joan L. Morgan, CSR 14 Official Court Reporter 15 16 17 18 19 20 Proceedings recorded by mechanical stenography. 21 Transcript produced by computer-assisted 22 transcription. 23 24 25 3 1 I N D E X 2 3 4 PAGE: 5 MOTIONS ARGUED: 6 MR. PAYTON 6 7 MR. KOLBO 14 8 MS. MASSIE 33 9 10 WITNESS: PAGE: 11 12 PROFESSOR LEMPERT 13 Direct Examination by Ms. Massie 42 14 Cross-Examination by Mr. Goldblatt 92 15 Cross-Examination by Mr. Purdy 113 16 ReDirect Examination by Ms. Massie 161. 17 18 TANIA KAPPNER 19 Direct Examination by Ms. Masley 170 [...] BENCH TRIAL - VOLUME 14 THURSDAY, FEBRUARY 15TH, 2001 170 1 THE COURT: Next witness. 2 MS. MASLEY: Jodi Masley,for the record. 3 T A N I A K A P P N E R , 4 being first duly sworn by the Court to tell the truth, was examined 5 and testified upon his oath as follows: 6 DIRECT EXAMINATION 7 BY MS. MASLEY: 8 Q Ms. Kappner, could you state and spell your name? 9 A Sure. My name is Tania, T-a-n-i-a, Kappner, 10 K-a-p-p-n-e-r. 11 Q And could you tell us your address? 12 A I live at 843 60th Street, Oakland, California, zip code 13 is 94608. 14 Q What is your occupation? 15 A I'm a teacher at Oakland Technical High School, an 16 English teacher. 17 Q Do you have any direct experience with graduate school 18 post affirmative action in California? 19 A Yes, I'm a recent graduate of the master's and credential 20 program at the UC Berkeley Graduate School of Education. 21 THE COURT: Credential program, I'm not sure. 22 THE WITNESS: Yes, I have both a credential and a 23 master's in education from UC Berkeley. 24 THE COURT: Maybe you could tell me what credential 25 is. I don't know what it is. GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 14 THURSDAY, FEBRUARY 15TH, 2001 171 1 THE WITNESS: Oh, in order to teach, by state you 2 need to have a teaching credential -- 3 THE COURT: Oh, I see. A license. 4 THE WITNESS: Yes. 5 THE COURT: It's requirements for a license. 6 BY MS. MASLEY: 7 Q So you have both a teaching credential and a master's. 8 A Yes, I graduated this last summer, last spring, from UC 9 Berkeley through the master's program. It was a program 10 specifically for English teachers that wanted to teach -- it 11 was the multi-cultural urban studies and education program, 12 yes. 13 Q And can you describe something about the nature of that 14 program? 15 A Yes, well, it was a program for people that wanted to 16 teach students in urban areas in cities like Oakland which is a 17 predominantly black school district right next to Berkeley or 18 in San Francisco, throughout the bay area. Really anywhere in 19 the state of California. Some people want to teach in Los 20 Angeles. The program was specifically designed to study issues 21 in urban education, learn methods of teaching in urban 22 settings, and create teachers that would provide leadership to 23 students and to other teachers in city schools throughout 24 California. So it was both a credential and master's program 25 with a highly theoretical focus. GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 14 THURSDAY, FEBRUARY 15TH, 2001 172 1 Q Okay. Do you know a Dean Eugene Garcia? 2 A Oh, he was the Dean of the School of Education while I 3 was there, yes. He oversaw our graduation. 4 Q Okay. Dean Garcia testified in this case that there were 5 precipitous drops in the numbers of minority students post the 6 ban on affirmative action and in graduate programs at UC 7 Berkeley. What did your program look like? 8 A Well, I was the only black student in the program which I 9 found really outrageous considering that most of us were 10 planning to teach in school districts that were majority black 11 and Latino, and serve minority students. There was one Latina 12 in the program, one Asian woman from Vietnam, and the rest of 13 the program was white. 14 THE COURT: These were all the same students that 15 wanted to do the same thing you did? 16 THE WITNESS: Yes, this was the urban education 17 program, the program for teachers that wanted to teach in city 18 schools. We were all those who wanted to be English teachers 19 in cities throughout California. And I took a number of 20 classes also in education school that incorporated students in 21 other programs and some undergraduate students, and I remember 22 being the only black students in those classes as well which 23 were bigger classes. 24 Q Did you encounter racism in this program? 25 A Absolutely. I mean, everybody in the program was GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 14 THURSDAY, FEBRUARY 15TH, 2001 173 1 committed to integration and wanted to serve all students 2 equally, but everywhere I went there was the stigma that comes 3 with being the only black student on me in the sense that I had 4 constantly the pressure of having to work extra hard just to be 5 considered equal or half as good. And there were repeatedly -- 6 especially in our urban education class, repeatedly racist 7 theories or misconceptions that came up that I had to argue 8 against in class. There was constantly on me the pressure 9 defending the basic equality of the students I had been serving 10 teaching in the bay area, in Oakland for years that 11 specifically -- there were theories, you know, both -- linked 12 to biological theories. There were theories saying that black 13 students, you know, didn't care as much about education or 14 there were theories, you know, claiming that the reason for 15 segregated conditions of education in places like Oakland were 16 based on some fault of black families or black people 17 themselves. And these were just complete misconceptions, just 18 the exact opposite of everything I had experienced teaching so 19 far, the determination of the students black and Latino and 20 Native American, all the minority students to get an education, 21 to have a future was so compelling to me, and was so 22 unequivocal, was something -- just the very fact that I had to 23 constantly assert that basic fact in these classes was a burden 24 and a stress on me that I think no one else in the program 25 felt. And really it distracted me in many ways from focusing GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 14 THURSDAY, FEBRUARY 15TH, 2001 174 1 on what I could get out of the courses in terms of learning, 2 teaching methods or implementing, finding ways to implement the 3 theories we were discussing because constantly I had to just 4 basically assert the equality of the students, debunk a lot of 5 the racism and stereotypes often from very well-intentional 6 students that wanted to be teachers, but that just simply had 7 grown up never being around black people or Latino people, that 8 simply had no experience in these schools, and simply had no 9 one else in the classroom to look to, to answer these questions 10 other than me. So I felt I had to take up that responsibility, 11 and I did. But it just meant that there was just a pressure on 12 me as a black student that I know was not faced by any of the 13 white students that were going there to get an education. We 14 were there to get an education. And I felt that my job became 15 to give an education to everyone in the program which I was 16 prepared to do because I am committed to making sure that we 17 have, you know, teachers throughout California that understand 18 honestly the determination of these students, but it was a 19 struggle for me. Every day was a struggle for me in the 20 program. 21 Q And I have two questions following out of your answer. 22 One of them is -- you said that many of the students were very 23 well meaning, is it the case they didn't even realize what 24 their assumptions amounted to, but they amounted to assumptions 25 about the inferiority of black and Latino students? GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 14 THURSDAY, FEBRUARY 15TH, 2001 175 1 A Yes, that was the case. These were people that saw 2 themselves as committed to integration, but were -- as I said, 3 grown up completely under segregation and had assumptions that 4 were just absolutely wrong about the black and Latino students. 5 And a lot of the material we were reading in the classes was 6 about supposed different cultures of different ethnic groups 7 and things like this. And there was just a complete lack of -- 8 a lack of understanding of the reality in a situation of the 9 very students that we were to be teaching. I mean, it just 10 seemed completely unrepresentative that I would be the only 11 black student in this program. And I would be the only, for 12 example, placed in the city of Oakland to student teach because 13 I, you know, requested it and demanded it. 14 Q And you said in your testimony that you had been teaching 15 for some years already. Can you just tell us how many years 16 you've been teaching? 17 A Yes, seven years. 18 THE COURT: You were teaching in the school -- we 19 heard from Dean Garcia that they have teachers in certain 20 schools that were not certified, I guess -- 21 THE WITNESS: I went back to school after several 22 years to get my credential, and I was working part-time also 23 substitute teaching while getting my credential, but also 24 student teaching through the credential program at another 25 school. GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 14 THURSDAY, FEBRUARY 15TH, 2001 176 1 THE COURT: You weren't here when he testified, I 2 don't think, but he testified that there were a lot of 3 teachers in the urban areas that were, I guess, not credential 4 or whatever his word was, you were one of those at that time? 5 THE WITNESS: Yes. 6 BY MS. MASLEY: 7 Q Did you feel like you were able to successfully counter 8 the racism and the stereotypes in your program? 9 A In some ways yes, and in some ways no. There was some 10 progress made in the understanding of other students in the 11 class because I explained things and tried to give examples and 12 tried to point them to the truth of situations that were coming 13 across that were completely new or that they had assumed 14 prejudices they were unaware of, but I tried to, you know, 15 debunk and lay bear. So in some ways yes, but in some ways no 16 because the whole context was rather irrepresentative of the 17 real situations that we would teaching in soon after and even 18 to some extent for me during that. I mean, I think that 19 there's a way in which you can only get rid of prejudice by 20 engaging with others and by seeing the real equality of 21 students by being there in the classroom with them, and also by 22 having peers that are, you know, intelligent and determined 23 black people and Latino people. And, yes, as the one, I could 24 do some mitigation, but I felt that I had to chose my fights 25 also in order that I could make it through the program. And GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 14 THURSDAY, FEBRUARY 15TH, 2001 177 1 there certainly were times where discriminatory views or 2 ignorant views did not get counted where they certainly would 3 have if we had a more intergraded class setting. 4 Q In that way do you feel that your education suffered? 5 A Yes, it did, but not just my education. I mean, 6 everyone's education in the program because -- I mean, we all 7 came to this program wanted, you know, to be in a school that 8 looks like California, that the state that we are going to be 9 serving and that we are serving as teachers. I mean, 10 California is majority Latino at this point, I believe, and 11 certainly has many more black students than were represented 12 proportion -- we were under-represented in the program. So I 13 think that had a negative impact on all the students. People 14 -- we had many different experiences coming into the program, 15 but the problem was that -- the problem was that my experience 16 was so different coming into the program that I felt I was made 17 to be the outsider in some ways although I did certainly, you 18 know, stand up against that and take some leadership and that's 19 what really got me through the program was understanding that I 20 was going to, you know, contribute to changing the situation, 21 building the new civil rights movement that was growing on the 22 campus at the time in support of reversing the ban on 23 affirmative action and winning more integration for the 24 University. The students supported that, and we were united in 25 that sense, but my education certainly did suffer as did GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 14 THURSDAY, FEBRUARY 15TH, 2001 178 1 theirs. 2 Q Do you think you felt less isolated than other black 3 students might have in your situation? 4 A Well, absolutely because I had already had a tremendous 5 amount of experience and confidence that came from having been 6 a leader both in the schools, in the teachers' union which I'm 7 involved with, in the struggle for affirmative action that had 8 been developed nationally, that I had been involved with for 9 several years before attending UC Berkeley, and I had a sense 10 of that confidence that I know many other black students that 11 I've met that just went through school, as that individual, 12 without the strength of, you know, source of strength and 13 support that that civil rights movement meant for me, that the 14 civil rights movement meant for my students. 15 Just going through school on your own, I can't even 16 picture it -- it would be such a different experience than the 17 kind of experience I've had as a leader in that school. I 18 mean, I guess, the best way to describe it is just one 19 specific example. At the time that I was -- in my second year 20 of the program, I was -- in second year you're already are 21 teaching, and you're working on your master's. And I ran for 22 the school board for the neighborhood that my school that 23 Oakland Technical High School is in. And that experience just 24 completely transformed me and gave me a confidence that I 25 think I brought to the classroom that I wouldn't have had had GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 14 THURSDAY, FEBRUARY 15TH, 2001 179 1 I not been a leader in Oakland and at Berkeley and seen myself 2 as trying to bring together those two communities. 3 I mean, basically what happened was that my students 4 became very involved. I was running as someone that was an 5 affirmative action activist that did want to establish, you 6 know, real desegregation programs and resources for the 7 Oakland schools and that did want to make sure we spent, you 8 know, the real funding on the schools but that we really 9 integrated those schools and the students, you know, were 10 going door-to-door telling everyone they should vote for me, 11 or just completely inspired and came alive to see -- because 12 it made them have a sense that they -- you know, if they made 13 this fight they could get into UC Berkeley, and that it was 14 important that I was someone at UC Berkeley kind of both 15 bringing that to Oakland and getting that sense of strength at 16 Oakland. I guess that's the best way I can describe it. 17 I had a tremendous kind of full sense of confidence 18 and authority in my program that came from that, and the fact 19 that I was a leader which I don't think -- I think -- I mean, 20 I just know so many black students that have gone through UC 21 Berkeley the last few years that just felt really devastated 22 by the experience, that just felt, like, you know -- you know, 23 just isolated. And if they -- like, they had to keep their 24 head down and just kind of make it through a really kind of 25 traumatizing experience. My experience was different because GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 14 THURSDAY, FEBRUARY 15TH, 2001 180 1 I was a part of the movement to change the situation at the 2 campus. 3 So yes it would be very different had I not been 4 making the fight I was making at the time. 5 Q You've made it clear that you're a leader in the movement 6 to reinstate affirmative action in California. What drives 7 your determination to do it? 8 A Well, my students. I mean, we have to have, you know, a 9 future of equality and they're very committed to that. I mean, 10 their whole sense of their possibility, and their right to 11 receive and to get a higher education and to really have a 12 future where they can be, you know, the next generation of 13 lawyers and doctors and teachers and professors and where they 14 can have an equal stance. Their determination really is what 15 makes me know that I have to continue this, and that they are 16 just so, like, brilliant and talented and just the very fact 17 that without affirmative action it's like a total blow, like 18 their hopes were just dashed. 19 I mean, there were eight hundred black and Latino 20 and Native American students that have really high test scores 21 in everything that didn't get into the UC system, the UC 22 Berkeley in the wake of taking away affirmative action. And 23 that was just completely devastating to them. And really just 24 seeing that we can change that and then -- they just have 25 really come alive as part of this effort to put California GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 14 THURSDAY, FEBRUARY 15TH, 2001 181 1 really again in front of progress, and democracy. They have a 2 sense of that, and so that's what really like keeps me going 3 and makes me know I have a real role to play as a leader in 4 this as well. 5 Q What does it mean to your students that you got a 6 master's at UC Berkeley? 7 A I think it's important. I think it's kind of unique to 8 them in that I think I certainly -- I'm one of the only people 9 in Oakland in that situation, a young black woman. And I think 10 it's important to them, but they also do have a sense that it's 11 kind of an unique thing. I think that -- what I try to convey 12 to them is that, you know, this can be them as well as, and 13 that we have some work to do to make that happen. That they 14 absolutely deserve to have the right to go to any institution 15 of higher education, the best, any institution of higher 16 education. I think it's important to them, but I think that 17 they know that if we don't reverse the ban on affirmative 18 action that I may be the one, you know, the whole generation 19 and that's not sufficient because there are so many brilliant, 20 talented students that should be able to become teachers in 21 Oakland or anywhere they want to. 22 Q Or any thing they want to. 23 A That's right. 24 Q You said that you teach English? 25 A Yes, I teach ninth and tenth grade English. GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 14 THURSDAY, FEBRUARY 15TH, 2001 182 1 Q What is it like teaching in your classroom? 2 A Well, it's challenging in a lot of ways just based on the 3 conditions, you know, in the schools. Like, my classroom, it 4 used to be an auto shop. And it was converted into a classroom 5 a couple of years ago, when I first started at the school. So 6 there's a like metal door that rolls down over the window. And 7 there's like a hole underneath the carpet. I'm always worrying 8 about someone's foot going through it. I've been requesting to 9 get it fixed since I started working there, but still hasn't 10 been. So there's a lot of -- it also gets real hot in there. 11 There's something wrong with the heating situation, and it's a 12 small room. So, you know, when you have thirty-five -- the 13 sophomore classes are in the thirties, the numbers, and we're 14 kind of packed in there. So that makes it harder. But the 15 students are very lively and engaged, you know, creative, and 16 -- real critical thinkers. So, I mean, we have -- usually a 17 lot of fun and a lot of good discussions. Some real learning 18 goes on, but it's really constricted by the circumstances. 19 I mean, for example, the fact that I can never get 20 enough books, of one set of books to teach all three of my 21 sophomore classes at once. So I spend a lot of hours at times 22 Xeroxing books. Sometimes the copying machine breaks down a 23 lot. We have two big copying machines in the school, you 24 know. They can't properly take home a book. There's not 25 enough books, materials in the school. That causes a problem. GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 14 THURSDAY, FEBRUARY 15TH, 2001 183 1 Like right now, we're working on the one set of 2 books for three classes and, you know, a couple of students 3 have taken home the book, but they're not suppose to take home 4 the book because we don't have enough books. So, I find myself 5 in kind of a conflict, problem as a teacher. I certainly 6 don't want to yell at students for wanting to take a book home 7 to read, but then we're stuck with fifteen books for a total 8 of a hundred and five students of sophomores for that day and 9 it's a problem. 10 So there's a lot of restrictions. I mean, I just 11 think -- the students' sense of, you know, they want an 12 education and they want to learn, but they're also affected by 13 how much of a future do they think they'll have, like, how 14 much is it worth -- I mean, is there a future for them beyond 15 the school or not? They think of that a lot, and they kind of 16 debate that. And it impacts them, what's going on in 17 California, impacts them. So it's kind of contradictory in 18 the classroom. 19 Q You seem very close to your students. 20 A Yes, I would say I am. 21 Q How do you attempt to counter-act the negative blow 22 delivered by the ban on affirmative action? 23 A Well, I mean what's happening right now is -- I mean, I 24 let my students know the situation honestly. I tell them, you 25 know, that they have a right to go to Berkeley, but that, you GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 14 THURSDAY, FEBRUARY 15TH, 2001 184 1 know, there's less than half as many black students as there 2 were before, just a few years ago. You know, I tell them the 3 truth, but I also make it quite clear that, you know, 4 throughout the history it's been, you know, stances for 5 equality, and movements for justice that have forced the 6 positive changes and have made sure that, you know, the rights 7 ensured by the government are acted on. You know, just as it 8 was young people in the first civil rights movement that 9 really, you know, stopped segregation throughout the south and 10 brought that question to the attention of the whole country. I 11 mean, it is -- they are the future. And that this growing that 12 they are a part of can change everything and can shape the 13 future. 14 And, so basically, we've participated in Days of 15 Action for affirmative action at UC Berkeley. About a hundred 16 of my students wanted to go and came and participated in the 17 high school civil rights meeting and rallies and so on up 18 there. They talked to other students about it. They talked 19 to other teachers about it. Right now there's a March 8th Day 20 of Action coming up at UC Berkeley that they're very excited 21 about participating in. We have about eight teachers from my 22 school that are planning on going with students now. And 23 about fifty teachers from around the area that want to 24 participate with their students. And basically we just work 25 together to make sure that, you know, equality is implemented, GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 14 THURSDAY, FEBRUARY 15TH, 2001 185 1 that we have access to higher education and to their futures. 2 I've been mobilizing them I guess is the way to put it. 3 Q What do you intend on the March 8th Day of Action to 4 accomplish? 5 A To reverse the ban on affirmative action at UC Berkeley, 6 throughout the UC system; to stop the resegregation that has 7 been proceeding since it started; to, you know, make clear that 8 the majority of California supports equality and that 9 affirmative action and positive measures for integration are 10 necessary to ensure the quality. 11 I mean basically to make -- we have about, gosh, 12 four hundred UC professors that are signed on, organizing for 13 the day right now. I mean, the California Teachers 14 Association of California which represents like three hundred 15 thousand teachers is endorsing and organizing for it. A lot 16 of the different civil rights groups -- I mean, basically just 17 that we want to have a date where we all stand together for 18 the future, for integration, for affirmative action, and that 19 we intend to win, and we are going to win. I'm quite confident 20 because, you know, the regents meeting is just a week after 21 that day. And they know. They know that people just will not 22 take it any more. That we've felt like we've been shoved to 23 the back of the bus and that's just no place to be, and we 24 won't be there. So we intend to win affirmative action back 25 for California, and put us, you know, at the front of the GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 14 THURSDAY, FEBRUARY 15TH, 2001 186 1 nation, as a leadership state. 2 Q Do you believe that thousands and thousands of students, 3 high school students, in California and Michigan will be 4 participating on that day? 5 A Yes, it's quite clear and it's very exciting. They're 6 very excited about it. Everybody is very excited about it. 7 Teachers, students, college professors, and people across the 8 state. I mean, we're just getting, like, endorsements for the 9 day faster than we can count them. You know, the e-mails are 10 coming in. People are signing on. People are circulating. 11 We've had thousands and thousands of people throughout the 12 state of California sign a petition to reverse the ban on 13 affirmative action. I mean, there's just a real -- I mean, in 14 California -- I mean, it's like when they first banned 15 affirmative action in California, people felt, you know, so 16 hopeless, but because of the determination of the students, 17 both the college and the high school students, and really how 18 that's impacted everybody, there's just been ongoing protests 19 and events, and mobilization and just determination to win it 20 back like students didn't give up, you know. 21 And now that's really changed the whole situation. I 22 mean, right now in California I mean I just tell you I expect, 23 you know, the middle of March for there to be jubilation 24 across the state because we are going to reverse the ban. I 25 mean, the situation and the tide has really turned. GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 14 THURSDAY, FEBRUARY 15TH, 2001 187 1 I mean, the majority of people are really coming 2 out, loud and clear for affirmative action across the state 3 right now. And it's just a tremendously exciting moment, and 4 it's clear that there are going to be thousands of folks from 5 around the state at UC Berkeley, but also they're organizing 6 their own events, on their own college campuses, in their own 7 work places. I mean, there's a real kind of sense that we're 8 all in this together, you know, now. 9 Q And are those students, the high school students, the 10 college students, and also the teachers, and the professors are 11 they coalesced into an organization? 12 A Well, I mean, yeah, the coalition to defend affirmative 13 action and integration and fight for equality by any means 14 necessary has really been the group that's been leading the 15 charge, and all the efforts, you know, to win affirmative 16 action back around California. So there's definitely that, and 17 that's like spreading like wild fire, but it's also just -- 18 it's so broad. Everyone in the organization wants to be 19 involved at this point. So it's not just one, but I would say 20 the ban really is, you know, done the most to lead things. But 21 it's pretty general right now. Everybody wants to, you know, 22 wants to make this history because it's just been so wrong, 23 what's happened. 24 Q Some might say that this is an unorthodox teaching method 25 bringing your students out to demonstrations at UC Berkeley. GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 14 THURSDAY, FEBRUARY 15TH, 2001 188 1 It sounds like it's the antidote for California, it's what 2 California needs. Why does doing this improve the confidence 3 of your students and their relationship to the classroom? 4 A Well, I mean, I mean, real learning. I mean, you have to 5 be actively engaged with the world to really learn. I mean, 6 there -- they have a sense that they -- okay, when we go up to 7 UC Berkeley it's like the college students are just so 8 thrilled, you know to see high school students there, and the 9 determination of the high school students really has an impact 10 on the college students, and the college students really 11 inspire the high school students. But really I think the 12 students see that they're leaders, just makes -- it's like 13 they're just asserting their rightful place, and it just builds 14 their confidence so much to see that what they do matters, that 15 they are changing history. 16 I mean, I can't tell you how much work and care 17 students have put into like writing their speeches, you know 18 -- I'm an English teacher, you want to go through and talk 19 about revision, and -- I mean, I've just seen the most 20 phenomenal things written, just the most clear, determined, 21 well-phrased, thought-through -- you know, can't believe my 22 eyes, but can convey just exactly what they want to mean. I 23 mean, I just think that they are just engaged in their -- this 24 is how they engaged in learning, but also because there's no 25 point if we don't do this. I mean, as brilliant as you are, GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 14 THURSDAY, FEBRUARY 15TH, 2001 189 1 as hard as you work through the Oakland schools, and as much 2 as my students try, if we don't make this change, they don't 3 have a future. So, I mean, I think for any teacher, you know, 4 we want our students to have future opportunities. So we have 5 to do this. 6 Q Can you say a little bit more about how the Berkeley 7 students respond to your students being at the campus? 8 A Well, it's really noticeably different on the day when -- 9 you know, I mean, affirmative action events. I mean, just -- I 10 think it really makes Berkeley students just like proud and 11 excited about the fact that they're building the fight for 12 affirmative action and integration, but also it's just like, 13 gosh, on a regular day when you walk through Spraw (sp) Plaza 14 at Berkeley, you know, these days, you might see one black 15 student or two black students within like an hour or two hours, 16 you know. But on these days, it's like we all stand together 17 and -- I mean, it's like, you know, as I said before, mostly 18 black youth from Oakland coming, but students of all races on 19 the campus, you know, on a primarily white campus at this 20 point, but all of us standing together just means something to 21 everybody. I don't know if I can explain it more than to say 22 that people feel a sense of -- like our capacity as human 23 beings comes out. I mean, the college students are inspired by 24 the high school students, but it's more than that. It's like 25 we have a sense of our common future when we're all there GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 14 THURSDAY, FEBRUARY 15TH, 2001 190 1 together, you know, standing up together, to change, you know, 2 to stop the attack on affirmative action, but really to assert 3 equality. 4 Q Does that, to you, represent a bit of the social power 5 and potential integration holds? 6 A Well, yes, that's exactly what it is. I mean, it's a 7 very powerful thing. I mean it just changes your whole life, 8 to see these divisions between different folks can actually be 9 broken down, that we can actually forge a common future, that 10 we could have actually have a university that looks like 11 California if we come together. I mean, I think it's a very 12 powerful feeling. It's a very positive feeling. And it's 13 really a very democratic feeling. I mean, this is like when 14 your life -- this is what this country is suppose to be about. 15 This is like actually everybody in it together. And it is only 16 -- in my experience, it's only like intergration that can give 17 you that sense. 18 Q Do you believe that UC Berkeley ought to look like 19 California? 20 A Yes, absolutely. It's a public university. It should be 21 serving the public of California, all the public of California. 22 It should not be two-tiered. I mean, what's just been so 23 devastating to students, you know, is this sense of two-tiered, 24 you know, pushing minority students and under-represented 25 students specifically out of the best universities and saying, GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 14 THURSDAY, FEBRUARY 15TH, 2001 191 1 oh, well, shouldn't you be happy to have some kind of college. 2 Well, I'm sorry, you know, a community college education 3 doesn't give you the same opportunities as UC Berkeley, and we 4 should have the right to college education at all levels. So 5 -- you know -- 6 Q Have other teachers at your school begun to adopt your 7 teaching method? 8 A Well, yes -- it doesn't take -- I mean, it's kind of 9 natural. I think, really, it's just -- I think all I've done 10 is provide some leadership to what other teachers have already 11 felt because everybody wants to be involved and actually, you 12 know, in representing the students' interests and uniting with 13 the students and doing something positive. I mean, just -- 14 yeah, a lot of teachers have wanted college students to come 15 make presentations in their classes; have wanted to take field 16 trips to action days and events; have been, you know -- it's 17 like showing Black History Month, it's like, we're doing the 18 same thing. We are really changing the world. And, you know, 19 the struggles that everybody's been through in the past for 20 equality and integration, I mean, we have an opportunity to 21 move forward on that, and to actually learn something. I think 22 for teachers, you know, that's really important. I mean, 23 people are in teaching because we want to help. We want to 24 build the next generation, the next generation of leaders, you 25 know. So it's important to us, it's very -- I mean, yeah, it's GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 14 THURSDAY, FEBRUARY 15TH, 2001 192 1 very popular. 2 Q So in a certain sense for those who have decided to 3 attack affirmative action in California it's been very much a 4 double-edge sword. 5 A Yes. I think that's almost a understatement because, I 6 mean, I think it's been like -- it's completely really 7 backfired. I mean, that, you know, on the one hand we're 8 facing terrible, negative consequences of the ban right now. 9 But there's really been a whole, like, movement for equality 10 unleased which has really gained strength and confidence. I 11 mean, yeah, it's backfired. 12 Q In your view, are Berkeley admissions race blind today? 13 A No, because -- I mean, when you get, you know, brilliant 14 challenges who have been taking AP classes at colleges, you 15 know, in LA, in middle school, kept out, you know, Latino 16 students with that kind of talent, kept out, you know, after 17 the ban, I mean, it's just clear that without measures against, 18 you know, racial discrimination that still occurs, you know, 19 towards blacks and Latinos and Native Americans and other 20 under-represented minorities. And without that, there's a 21 double standard being used now. Race is being looked at, but 22 it's being looked at, you know, against the very people that 23 have been victimized by racism. It's been held up against 24 equality. It's being used, I mean, in a way that -- the impact 25 is segregation. I mean, just the reality of the situation is GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 14 THURSDAY, FEBRUARY 15TH, 2001 193 1 to use a double standard, you know, in favor of white students 2 and against minority students. And nobody wants that. None of 3 the students want that. The majority of the students on the 4 campus of all races support affirmative action, and know how 5 limited an education is without integration. 6 Q Do you teach any white students? 7 A Well, I have one white student in one of my freshman 8 classes. She transferred in late. 9 Q And over the years that you've been teaching you've 10 taught some white students? 11 A I would say it's been about -- yes, yes, I would say it's 12 been one to two each year. 13 Q And they experience the conditions in Oakland Tech School 14 that the black, the Latino, the Native American students also 15 experience. 16 A Yes, they experience the same conditions in the overall 17 school, but there are some issues within the school of 18 inequity. For example, if you look at the honors programs, 19 they are primarily white and Asians with only one or two black 20 students. But then you look at my class which are the classes 21 which are the regular track classes and there may be only one 22 white student. 23 So there are the same conditions in the school 24 overall, but there's still some differences within the school. 25 But yes, I mean, anybody going through Oakland schools is GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 14 THURSDAY, FEBRUARY 15TH, 2001 194 1 experiencing a different kind of education than you would get, 2 for example, at Piedmont right next door, which is 3 predominantly white school district which has all kinds of 4 resources, all kinds of programs, all kinds of -- you know, 5 the students there have counselors, are told they are the 6 future in a way that, you know, the conditions in our schools 7 don't tell the students. 8 Q So the white students in your school have they had the 9 opportunity to, and have they also taken a stand? 10 A Well, yeah, they support affirmative action, also. I 11 mean, they look -- we're never going to, you know, break down 12 these unequal conditions of education within the schools if the 13 schools remain largely segregated like this, and for the few 14 white students that are in the school, they have a sense that, 15 you know, their own future, and their own possibilities is, you 16 know, tied up -- the black students there have an equal right, 17 and that would bring more positive changes to the whole school 18 system overall. So they generally, you know, have been 19 supportive as well. 20 Q What would take to level the educational playing field? 21 A I think it would take real desegregation plans for both 22 higher education and K through 12. I think it would really 23 take, you know -- it would take a lot more resources, but not 24 just more resources. I mean, also integration because I mean 25 -- well, it's like the Brown versus the Board of Education case GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 14 THURSDAY, FEBRUARY 15TH, 2001 195 1 that, you know, I mean if they're separate, there is a stigma, 2 you know, on the minority students. And if they're separate 3 there's a message that it must be for a reason. And that one 4 group is inferior and clearly in this society the message is 5 that, you know -- that's put out by separate conditions, you 6 know, conscious or not, the message that is put out is that 7 black people are inferior and we're not, we're equal so we need 8 integration. And I think everybody in the whole society has a 9 tremendous amount to gain from that. So I guess that's kind of 10 how I see affirmative action at the university level, but I 11 also see it as connected to needing to really, you know, 12 integrate the public school's education system through and 13 through. And there's a lot of support for that around the bay 14 area. I mean, people know, you know, that's how profounding 15 and positively that would improve everything. 16 Q Do you see yourself as engaging your students in a 17 process of lifting the stigma? 18 A Yes, yes, because just -- I mean -- well, it's sort of 19 like how I felt going through the college. I mean, when you 20 come forward and stand up for equality and you're a leader, you 21 know, for everybody, then, you know, that does lift the stigma. 22 I mean the fact of the matter is, you know, like people in my 23 education program knew that -- I mean, basically they wouldn't 24 have gotten as good of education, you know, if I hadn't been 25 saying those things in those classes. GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 14 THURSDAY, FEBRUARY 15TH, 2001 196 1 And I think with my students when they stand up for 2 their futures, when they become involved in this movement they 3 feel so much better themselves, but also they just do -- they 4 just -- I mean, they can say things and express things that I 5 can't even say or express up here. They are just so talented 6 and they have so much to contribute to, you know, society. 7 So, yes, that does lift the stigma. I think this whole 8 country gained a whole lot from the first civil rights 9 movement. Everybody, black and white, Latino, Native 10 Americans, everybody, Asians, everybody gained from the 11 progress that was made towards integration. And I think this 12 is just carrying that through and making -- and defending 13 that, but really carrying it through further, you know. 14 Q What happens to your students if you were to lose? 15 A Well, I mean, gosh, we don't intend to lose first of all 16 because we can't afford to because -- we don't want California 17 -- I mean, it would be like -- I mean, California is going to 18 be like Mississippi, you know, before the civil rights 19 movement, and that's crazy. 20 I mean, my parents met during the, you know, voters 21 registration in the civil rights movement. They wouldn't even 22 have had the right to be married to each other if it wasn't 23 for that movement. 24 I mean, my students, you know, want to like, you 25 know, engage with young people their age of all races. Like, GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 14 THURSDAY, FEBRUARY 15TH, 2001 197 1 they're not going to let this happen, but if it were to happen 2 it would mean just -- California becomes -- I mean there's no 3 other way to put it, really. It would just take us back, you 4 know so far. I mean -- we're not going to let that happen. 5 That's not where things are at. Things are not -- I mean 6 people in California are -- I mean, okay, I'm an English 7 teacher so -- I mean, you know, the poem, "Dream Deferred" 8 it's just like that. I mean, the last line of that poem it 9 goes -- and it's sometimes called "Dream Deferment," sometimes 10 called "Harlem." It says -- it talks about dream deferment. 11 It says maybe it sags like a heavy load or does it explode? 12 That's the situation. The burden, the shattering of dreams, 13 the ruining of hope would be just irreparable but people would 14 also be so angry. I mean, things would just explode in 15 California. People just won't tolerate it. I mean, we've got 16 an intergraded state. We need intergraded public education. 17 Q And what happens if you win? 18 A Well, if we win we just have -- it's like just opening 19 the doors so much progress. I mean, I think it will be really 20 positive to the whole national situation. I think it will be a 21 real signal that this country, you know, can deliver a real 22 democracy to members of all races, specifically to black 23 people, but to everybody. I think it will be such a unleashing 24 of potential, of the whole next generation, you know, that's 25 just going to be completely squandered if we move towards GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 14 THURSDAY, FEBRUARY 15TH, 2001 198 1 segregation if that process continues. I think we have 2 everything to win, everything to gain. That means obviously 3 more opportunities for my students, but really for every single 4 student in California. I mean, for this whole next generation, 5 but really for every generation. 6 Q You sound very optimistic. 7 A I am because we are going to win, because we do have -- I 8 mean, it's just the fact that the majority of people in this 9 society support quality and this is a fundamental question of 10 equality, of democracy. I mean, that's what integration is. 11 That's what affirmative action is. And there's just a sense of 12 that kind of confidence and determination to not go back in 13 California right now. And I think it's just really a historic 14 moment, a real historic turning point, and I just -- yeah, I'm 15 very, very optimistic because we, as I've said, have absolutely 16 everything to gain, and we do intend, you know, have that 17 reversed. We do intend to move forward. We have such 18 momentum. We have, you know -- gosh, we can't even get enough 19 buses, but we'll get those buses and we'll thousands of people, 20 and we're going to win. We have to win, and we will. 21 MS. MASLEY: Nothing further. 22 THE COURT: Anything from the Plaintiffs? 23 MR. PURDY: No, your Honor. 24 THE COURT: Thank you, very much. I appreciate it. 25 The Intervenors rest? GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 14 THURSDAY, FEBRUARY 15TH, 2001 199 1 MS. MASSIE: Yes. [...]