UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION BARBARA GRUTTER, for herself and all others similarly situated, Case Number: Plaintiff, No. 97-CV-75928 -vs- LEE BOLLINGER, JEFFREY LEHMAN, DENNIS SHIELDS, and REGENTS OF THE UNIVERSITY OF MICHIGAN, Defendants, and KIMBERLY JAMES, ET al., Intervening Defendants. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _/ VOLUME 6 BENCH TRIAL BEFORE THE HONORABLE BERNARD A. FRIEDMAN United States District Judge 238 U.S. Courthouse & Federal Building 231 Lafayette Boulevard West Detroit, Michigan TUESDAY, JANUARY 23, 2001 APPEARANCES: FOR PLAINTIFF: Kirk O. Kolbo, Esq. R. Lawrence Purdy, Esq. GRUTTER -vs- BOLLINGER, ET AL 2 1 2 APPEARANCES: (CONTINUING) 3 4 FOR DEFENDANTS: John Payton, Esq. Craig Goldblatt, Esq. 5 On behalf of Defendants Bollinger, et al. 6 7 George B. Washington, Esq. Miranda K. S. Massie, Esq. 8 On behalf of Intervening Defendants. 9 10 COURT REPORTER: Joan L. Morgan, CSR Official Court Reporter 11 12 13 14 Proceedings recorded by mechanical stenography. Transcript produced by computer-assisted 15 transcription. 16 17 18 19 20 21 22 23 24 25 GRUTTER -vs- BOLLINGER, ET AL 3 1 I N D E X 2 3 WITNESSES: PAGE: 4 5 WITNESSES PRESENTED ON BEHALF OF INTERVENOR 6 7 ERICA DOWDELL 8 Direct Examination by Ms. Masley 7 9 Cross-Examination by Mr. Payton 76 10 11 GARY ORFIELD 12 Direct Examination by Ms. Massie 81 13 Cross-Examination by Mr. Payton 180 14 Cross-Examination by Mr. Purdy 184 [...] 4 MS. MASSIE: Gary Orfield is our next witness. 5 G A R Y O R F I E L D , 6 A having been called as a witness herein, and after 7 Having been first duly sworn to tell the truth, was 8 Examined and testified as follows: 9 DIRECT EXAMINATION 10 BY MS. MASSIE: 11 Q Professor Orfield, can you spell your name for the 12 record? 13 A Gary Orfield, O-R-F-I-E-L-D. 14 Q Give us your basic geographical data, where and when you 15 were born? 16 A I was born in 1941, in Minneapolis. 17 Q Did you grow up there? 18 A I did. 19 Q Tell us your educational history if you would? 20 A I'm a graduate of public schools in Minneapolis, and of 21 the University of Minnesota where I graduated in political 22 science. I went to the University of Chicago and received my 23 masters, Ph. D. in political science, and then began teaching 24 and a research career. 25 Q If you could summarize the highlights of that teaching 82 1 and research career, it would be very irritating and tiresome 2 to go through your entire resume, but if you could at least the 3 give the Court a sense of some of the high points that would be 4 very helpful. 5 A Well, I basically taught at five research universities, 6 the University of Virginia initially. Princeton University, 7 University of Illinois, the University of Chicago, and Harvard 8 University. I've also worked at research centers including 9 Brookings Institution. I've done brief stints with the 10 government, the U. S.Civil Rights Commission. My highlights 11 are on many kinds of research and many hundreds of wonderful 12 students. 13 Q Can you tell us your main current areas of research? 14 A I research particularly on issues of educational equality 15 at this time. During this year, we will publish three edited 16 volumes on educational and equality issues. One will be on an 17 issue on school reform. It's called "Hard Work for Good 18 Schools." It's about Title I Programs in the federal 19 government. The second one is on testing. It's called, 20 "Raising Standards or Raising Barriers." It's about the effect 21 of testing and accomplishments of testing on active -- 22 completion of the school -- 23 Q Do you mean standardized testing? 24 A Standardized testing. 25 And we are publishing a book called, "Our Diversity 83 1 Challenge," which is about -- research on impacts of 2 diversity. I will also be issuing a report on School 3 Segregation Trends in he 1998-99 school year in the relatively 4 recent future. 5 Within the last couple of weeks, our project ran a 6 national conference together with dropouts in United States. 7 This Friday, we're running a conference at the University of 8 Texas with research centers on the impact of the changes in 9 testing and in college admissions tests at the Texas 10 Institution. 11 We are doing a study now about the Florida Plan. 12 We've been doing interviews by phone, and we'll be doing 13 interviews in the field on that. 14 Q What you mean by the "Flor Plan" if you would? 15 A The Flor Plan, is the -- called the One Flor Plan to 16 admit the top twenty percent of the graduating class of each 17 high school in Florida. 18 Q And that was instituted as a replacement for affirmative 19 action programs in Florida's higher ed? 20 A By Governor Bush, yes, sir. 21 Q Have you testified as an expert witness before? 22 A Yes. 23 Q In what kind of cases? 24 A On many kinds of cases. In school segregation cases, 25 housing discrimination cases. Some on higher education. Those 84 1 are the major areas in which I've testified. And I think in 2 some cases I just filed affidavits or -- done depositions, and 3 the issue has been settled before trial. 4 Q You were an expert in the University of Washington Law 5 School Affirmative Case; is that right? 6 A That's correct. 7 Q And have you been retained by lawyers or appointed by 8 courts, or both? 9 A I have never been retained by lawyers. I have always 10 served as a volunteer in cases. I have been retained by 11 judges. I've work for judges as a court-appointed expert or 12 special master in some cases. 13 Q Have you testified on other matters involving race, 14 racism, and education in other forums, I mean specifically 15 congressional and similar hearings? 16 A Yes. 17 Q Tell us about those. 18 A Well, I've participated in many congressional hearings, 19 in state legislative hearings, and in state rule making 20 hearings. I've worked with the National School Board 21 Association. I've worked with the -- done a report -- I've 22 worked with many state and national educational organizations. 23 I'm currently doing some work with the National Education 24 Association. 25 Q Forgive me, did you mention your chairmanship of the 85 1 Civil Rights Project already? I'm not sure that you did. 2 A I've served together with my colleague, Christopher Evers 3 from Harvard Law School, co-directors of the Civil Rights 4 Project at Harvard which is a research center on civil rights 5 issues. 6 Q Which has been responsible for backing some of the 7 projects you mentioned earlier as I understand? 8 A Yes, it's the mechanism through which we have carried out 9 a number of these projects, and many others in the process now. 10 Q You and the project have received grants from numerous 11 foundations, could you name several? 12 A We received grants from the Ford Foundation, from the 13 Mott Foundation here in Michigan. From the MacArthur 14 Foundation, from the Carnegie Foundation, from the Spencer 15 Foundation for educational research. I think those are some of 16 our major funders. 17 MS. MASSIE: Judge, I'd like not take any more time 18 with this. I know you have a copy of Professor Orfield's CV. 19 THE COURT: I have read it and I don't believe the 20 plaintiff has any objection, nor the defense to allow him to 21 testify as an expert. 22 MS. MASSIE: Great. 23 BY MS. MASSIE: 24 Q Professor Orfield, please turn to Tab 167. 25 A Yes. 86 1 Q Got it? 2 A My glasses just broke. 3 (Pause in proceedings.) 4 BY MS. MASSIE: 5 Q If you turn for me quickly to Exhibit C. 6 THE COURT: What exhibit number are you on? 7 MS. MASSIE: I'm sorry. We're at Tab 167, which I 8 had directed Professor Orfield to turn his attention to. I'm 9 going to wait for you to get your hands on it. 10 THE COURT: Thank you. 167? 11 MS. MASSEY: Correct. 12 THE COURT: Okay. Ready. 13 BY MS. MASSIE: 14 Q If you could look at your Exhibit B to your Exhibit 167. 15 Q Exhibit B? 16 Q I'm sorry. I wasn't being clear. What I meant to ask 17 was whether within Exhibit 167 you have the exhibit marked 18 there, but I believe -- 19 A Yes, I do. 20 Q You do. I'm sorry. Exhibit B is entitled "Diversity" -- 21 what I mean to direct you to is Exhibit C. Excuse me. 22 A Yes, I have it. 23 Q You just mentioned when we were speaking to your current 24 projects what sounded like it was going to be an update to 25 this; is that correct? 87 1 A Yes, and I have been issuing reports on state segregation 2 in American schools since the 1970s, twelve of them, and we're 3 going to be issuing another on this year. 4 Q Have there been any dramatic changes in your conclusions 5 or in the trends that you identify in Exhibit C to your export 6 report? 7 A Well, our forthcoming study will show an acceleration of 8 segregation in the South and a rapid expansion of minority -- 9 for residents and minority segregation in the suburbs, the 10 metropolitan areas, but otherwise, the general trends are the 11 same. 12 Q Can you give us a very general description of those 13 trends and then we'll come back and break them down a little 14 bit more. 15 A Certainly. Basically up until the time of the Brown 16 decision, the entire country was very segregated for 17 African-American students. And nobody even measured 18 segregations for Latino students, but in all likelihood very 19 high. 20 We didn't get really good national data on 21 segregation until after the Enactment of the 1964 Civil Rights 22 Act, and a collection of data that followed that Act. From 23 the period when we begin to closely, we went from almost 24 complete apartheid in the South in 1954, almost one hundred 25 percent of black students and teachers were in completely 88 1 segregated institutions, to a situation whereby 1970, 2 following the Enactment of the Civil Rights Act and its 3 enforcement by the Executive Branch of the Court, the South 4 became the most integrated part of the United States. 5 Throughout all of the data that we have the most 6 intense segregation that existed in the country since 1970, 7 has been in the major industrial states of the northeast and 8 midwest, and the absolute center of segregation for black 9 students in the country have been -- typically have been in 10 four states, in Illinois, and Michigan, and New York and New 11 Jersey, where you have very large metropolitan areas, very 12 large African-American populations and extreme residential 13 segregation and fragmentation of the metropolitan areas into 14 many separate school districts. 15 MS. MASSIE: If I could ask you, George, to put up 16 Proposed Exhibit 196. I will talk to counsel later and see if 17 there are any objections to any of these exhibits. 18 THE COURT: 196? 19 MS. MASSIE: Yes. They are based on things already 20 in the record so I don't anticipate any. 21 BY MS. MASSIE: 22 Q Professor Orfield, do you want a hard copy of that? 23 Would that be easier? 24 A I have a hard copy. 25 Q Okay. 89 1 A Yes. Well this is a chart that shows the most segregated 2 states in the United States for black students in 1998-99, 3 which is the most recent data that's available from the federal 4 government and what will be in our forthcoming report measured 5 three different ways. And it basically here shows that in the 6 state of Michigan only seventeen percent to the students in the 7 state or black students are in majority white schools. In 8 other words, eighty-three percent of the black students in the 9 state of Michigan are in predominantly minority schools, in 10 schools that we would call segregated schools. 11 On the measure of what we call extreme segregation 12 which is ninety to one hundred percent minority schools, 13 Michigan ranks number one. Sixty-four percent of all the 14 black students in the state are in extremely segregated 15 schools. These are the ones that you might call 16 hyper-segregated schools where there is little or no contact 17 with students of other racial groups. 18 In terms of the third measure that we use which is 19 call the Exposure Index which shows that typical composition 20 of a class -- of a school attended by students in the states 21 which involves computing every school in the state and 22 figuring proportions and so forth, it indicates the typical 23 black student in Michigan is in a school that is about eighty 24 percent non-white. And Michigan ranks second in the country on 25 this measure. So Michigan ranks between first and third out 90 1 of the fifty states on these three measures of segregation of 2 schools in the most recent data that's available in the United 3 States. 4 Q In your view are those the three best ways of trying to 5 provide a matrix or a description of segregation? 6 A I think those are three very good ways of giving you 7 indicators. These have been valuable and understandable. In 8 many of the measures that are used in sociology are very 9 difficult for people to understand. So we found that most 10 people can understand these measures. And if they do produce 11 -- as you can see, pretty consistent rating systems. 12 Q That was my next question actually, does the information 13 in the three columns tell you different things? 14 A Yes. 15 Q Can you tell us a little bit about the different 16 conclusions you might draw from the different columns? 17 A Well, for me basically if you were to compare Michigan 18 say with -- I notice outside your courtroom here you have a 19 Norman Rockwell picture of a young black -- a young black girl 20 being led into a school in Little Rock in the 1950s. 21 Basically there's no place in the South that is 22 anywhere close to the segregation level of Michigan. There's 23 no place where there's less contact between blacks and whites 24 in any of the areas where there is apartheid in the country 25 until a generation ago. A little girl was never led into a 91 1 school in the Michigan area. 2 I just read a report from the National Bureau of 3 Economic Research yesterday that showed that in metropolitan 4 Detroit segregation is the highest of any metropolitan area in 5 the country for schools. And the typical black student in 6 metropolitan Detroit is in a ninety-three percent minority 7 school. It's the most segregated urban community we have in 8 educational terms in the country. 9 The intense segregation is kind of a measure of 10 really almost complete isolation because many of those schools 11 who are nearly almost one hundred percent minority is almost 12 like the school that Erika talked about where there are no 13 students of other races, and there's no way for students to 14 understand what students of other races experience until they 15 go take a field trip or something like that as she described 16 in her concert competition. 17 My children went to public school in Chicago, and 18 they had a very similar experience to going to the suburbs and 19 seeing an incredibly shocking difference of a city in every 20 dimension of educational opportunity. 21 These are extremely isolated educational experiences 22 in our society where only one fifth of the children are black, 23 they have no contact with five fifths of society in growing 24 up. 25 So each of these tell you something -- it's just 92 1 another way of looking at the same phenomenon. 2 Q What is the educational consequences of that kind of 3 segregation? 4 A Well, there are many educational consequences because 5 basically the schools that say separate but equal is the most 6 extensive social experiment in the United States history. 7 We've tried it in thousands of places for many generations. It 8 never worked anywhere as far as I can tell. Nobody's been able 9 to me a comparable example. There never was a separate but 10 equal school system. That's because of many things. It's 11 because the poverty levels in segregated schools are much 12 higher. Almost the only intensely improvishered schools that 13 we have in the metropolitan areas are for black and Latino 14 children. They are also because there are many fewer minorities 15 in teacher training. There are many fewer teachers who choose 16 to go work in schools of this sort. Most teachers who start in 17 schools that are segregated leave faster. The curriculum that 18 is offered is more limited. The probability that the teacher 19 will be trained in their field is much more limited. The level 20 of competition is less. The respect for the institution on the 21 outside world is less. The connections to colleges are less. 22 There are more children with health problems because minority 23 children are much more likely to live in rental than ownership 24 housing. The population is much more unstable. Many 25 segregated schools have a vast turnover of students every year 93 1 and there's tremendous educational instability as far as 2 students go and faculty go. It's a different world in every 3 respect. You heard some illustrations of that. But basically 4 we are not a society that's learned how to run separate but 5 equal schools. We run separate schools that are always 6 systematically unequal. And basically if you -- sometimes when 7 I was doing research on this issue in Chicago a suburban 8 teacher would call me and say, you know, we've read your study, 9 we decided to actually go in and see what the same exact class 10 looked in a counter-part school in Chicago. And they would 11 come back and everyone would just be stunned. The kids didn't 12 have books. They were only half way through the subject. The 13 teacher didn't know the subject. There were no facilities. 14 And the whole level of competition, expectation was so 15 different that it was like a different planet, a different 16 society. 17 MR. PURDY: May it please the Court, we are -- this 18 is, I believe an appropriate time, may I approach the podium? 19 THE COURT: Of course. 20 MR. PURDY: We are not taking issue with all of the 21 subjects that Professor Orfield is talking about. What he is 22 addressing are tremendous issues that this country faces, that 23 this society faces, that we all face involving educational 24 policies starting from the very earliest ages and rising all 25 the way up until the kids get to the point where they are 94 1 applying to the University of Michigan and ultimately to the 2 University of Michigan Law School. 3 His testimony, we're not contesting that he is an 4 expert in these areas. He quite clearly is an expert and has 5 written profusely on the areas of segregation and 6 re-segregation, and all of the problems that deal with that. 7 And we're not here to dispute that, or argue with him, and 8 indeed we would join with him in many of the ways to correct 9 all of the problems that we -- that everybody deals with 10 daily. But these subjects have nothing to do with the 11 questions that the Court is trying in this limited procedure. 12 THE COURT: Please. 13 MR. PURDY: Your Honor, for that reason we would just 14 ask that the Court limit the testimony as we go down the road 15 to those subjects that the Court had set down for trial. 16 Once again, we're not contesting that -- we will not put on a 17 witness or take any issue with the types of numbers that 18 Professor Orfield is going to talk about in terms of various 19 school systems. Those are all problems that certainly be 20 addressed, but they're not a subject of the issues before this 21 Court. For that reason we would ask the Court to limit his 22 testimony to those areas that the Court deems appropriate and 23 relevant to the limited issues the Court has set down for 24 trial. 25 THE COURT: Okay, as I indicated before when Mr. 95 1 Washington spoke, in terms of relevance I guess, relevance is 2 a relevant term, but I think that we will listen to it. I 3 think all that I can learn and glean and be educated about and 4 the record can learn, glean and be educated about is 5 important. As I say I probably didn't mean to trigger by my 6 statement at the conclusion of --I forgot Erika's last name -- 7 MS. MASSIE: Dowdell. 8 THE COURT: Thank you. Everyone was calling her 9 Erika. Anything other than the fact that I have promised the 10 Intervenors in this matter that I would go into it, listen to 11 what they had to say. That's why I limited the time so that 12 we could do it within a reasonable time frame. I understand 13 where they're coming from, and will allow them to proceed over 14 the objection. 15 MS. MASSIE: Thank you, Judge. In that case, I'm 16 going to wait until some later point to respond to Mr. Purdy's 17 -- 18 THE COURT: You may respond but I'm not sure that -- 19 excuse me one second. I am not sure that you need to respond. 20 I think it was more of a statement. You may respond whenever 21 you care to, I have no problems with that, but as I say it was 22 more of a statement than -- 23 MS. MASSIE: They say that they join us in decrying 24 the levels of segregation and equality that Professor Orfield 25 s talking about, and it's exactly what they would bring to 96 1 higher education, into the University of Michigan Law School. 2 THE COURT: I understand your argument. 3 MR. PURDY: I hope it's clear, your Honor, that it's 4 not at all -- 5 THE COURT: I understand. 6 MS. MASSIE: If necessary we can get into it further 7 at some other point. I hope it won't be. 8 THE COURT: I don't think we're going to have to. As 9 I indicated to you and to Mr. Washington and to everyone that 10 we're going to proceed and learn everything we can, and try to 11 leave no stone unturned within the frame work of what -- the 12 time we have and everything else. Let's move on. 13 MS. MASSIE: Thank you, Judge. 14 George, could you put up Proposed 195, please. 15 BY MS. MASSIE: 16 Q Do you recall this table from your report? 17 A Yes, I do. 18 Q And that if I understand correctly you were just 19 testifying about the level of segregation in urban areas. 20 A Yes, that's correct. This is just a table to show the 21 enrollment of the largest central cities in the United States 22 -- largest central city school systems in 1996-97. 23 Q As far Detroit goes, it shows that there's a 24 hundred and eighty-seven thousand and five hundred and ninety 25 students of whom only 5.2 percent are white and 90.1 percent 97 1 were African-American. 2.8 percent Latino, and one percent 2 were Asian. 3 So this is one of the great centers of 4 African-American African-American population in the midwest, 5 and certainly dominant African-American population 6 distribution here in. Michigan, and it's very, very high. 7 Q And one of the great centers of school segregation. 8 A It is indeed the greatest center of school segregation in 9 metropolitan Detroit. 10 Q How does educational segregation relate to housing 11 segregation? 12 A It's directly related to housing segregation unless there 13 is some kind of de-segregation plan that overcomes the housing 14 segregation. And Detroit has -- is one of the most intensely 15 segregated housing markets in the United States. It's one of 16 those that have been designated as hyper-segregation in our 17 research. Doug Massey and Nancy Denton and other scholars who 18 have looked at housing segregation across the country. So 19 there's intense housing segregation, and very strong boundaries 20 that separate schools from different racial groups because even 21 the working class suburbs of Detroit have had tremendous 22 residential segregation. 23 Q Is there to your knowledge, has there ever been school 24 integration without conscious policy choices and initiatives? 25 A In urban communities with residential segregation school 98 1 integration requires desegregation plans and initiatives. And 2 when they are ended, school segregation increases. 3 Q And is it on the increase now? 4 A It is. It's been on the increase now for almost a 5 decade, and our study will show it's continuing. 6 Q And that's because of the coming to an end the 7 determination of conscious policy initiatives? 8 A That's correct, and also the expansion of residential 9 segregation. I want to catch up to you with the exhibits here. 10 Here is Proposed 197. You were speaking, Professor Orfield 11 before the objection was made about the relationship between 12 segregation by race and poverty in the schooling. 13 A Yes. 14 Q If you could tell us a little bit about this chart, and 15 what we should draw from it. Well, we looked at all of the 16 schools in the United States in which data was reported to the 17 federal government, many tens of thousands of schools. And we 18 looked at schools that had different percentages of 19 African-American and Latino students, and different percentages 20 of poverty to see whether or not these two things were related 21 fairly strongly. 22 And what we saw is that if you look at the schools 23 that had zero to ten percent black and Latino students, which 24 are almost half the schools in the United States at this 25 period, only 7.8 percent of those -- 7.7 percent of those 99 1 schools had more than half poor kids in them, only one out of 2 fourteen schools. 3 If you look at the schools who are ninety to one 4 hundred percent black and Latino and those are the schools 5 that have about three quarters of black students in Michigan, 6 for example, those schools have eighty-seven percent 7 concentration of poverty. In other words, intensely segregated 8 minority schools have very high levels of poverty, and those 9 very high levels of poverty are linked in many forms of 10 educational and equality. And poor white children are much 11 less likely to end up in impoverished schools than poor 12 minority children because they're just not that concentrated 13 residentially. 14 Q What's the measure of poverty here? 15 A Well, this is the measure of Free Lunch. It's the only 16 data that exists on poverty in schools at the national level. 17 Free Lunch, of course, is set by federal statute and 18 eligibility. It's not the same as the census poverty 19 standards. It's a little higher. It's very low income. 20 Q I'm sorry, it's a little higher meaning that you can have 21 a little more income -- 22 A A little more income than the poverty standard, but these 23 are families whose income level is not adequate to provide -- 24 they don't have enough money to pay for lunch for their 25 children. 100 1 Q Does this chart mean that going to a school that's 2 largely black and Latino means going to a poor school? Does it 3 mean that poor and black are co-extensive? 4 A It means that if you go to a school that's overwhelming 5 black and Latino, nine times out ten it's going to have 6 concentrated poverty. If you go to a school that's overwhelming 7 white, hardly ever, once out of fourteen times. 8 Now, there's many kinds of schools that aren't in 9 either of these categories. But at these extremes there's a 10 strong relationship, a serving relationship. 11 And when we looked at metropolitan Chicago we looked 12 at eighteen hundred elementary schools, and we found none that 13 were white with heavy concentrated poverty, and virtually all 14 with the African-American, in densely segregated schools. 15 Q Here's what I'm wondering, Professor Orfield, if the 16 level of correlation is this high in the context of the 17 affirmative action debate, why couldn't we just substitute 18 poverty measures for race in admissions-decision making? 19 A Well, there are several reasons. This has been tried in 20 a number of places and we have a lot of evidence about what 21 actually happened. But at the extreme, these relationships are 22 very dramatic, but you can still see that there are white 23 schools that are predominantly poor. And there are small 24 numbers of non-white children in these segregated black and 25 Latino schools. And as you -- and inbetween there are many 101 1 other sorts of schools where these patterns are less dramatic. 2 So the correlation of co-efficient between poverty and black 3 and Latinos percentage is about twenty-six. That means there's 4 a strong relationship, but it's far from perfect. And when you 5 do -- particularly when you use poverty plus test scores or 6 something like that, you don't get the results you think at 7 all. You don't get the same kind of access from minority 8 students because there are a lot of temporarily poor white 9 students and particularly immigrant students whose parents are 10 at a very high educational level, who are in these 11 improverished schools for at least a short term in their 12 educational experience, and they will tend to get the advantage 13 if you concentrate on poverty. 14 So poverty and race aren't the same; they're 15 different, although, they effect the same schools. You can't 16 solve one by the other. You run into all kinds of 17 complexities in the implement of this process. And you get all 18 kinds of benefits that you're not looking for. We're not 19 looking for policy that gives a special benefit to immigrants 20 who don't have any history of discrimination here in this 21 country. We're looking for policy that addresses the 22 inequalities that are reflected in segregation statistics. 23 Q If I understand your report there's a growing tendency -- 24 there's a growing number of quite segregated much more middle 25 class suburban schools. 102 1 A Yes, in the last several years are showing a pretty 2 dramatic extension of residential and school segregation into 3 the suburbs of metro areas. There's a huge increase in black 4 and Latino middleclass migration to the suburbs. But 5 unfortunately, it's pretty highly segregated. 6 We released the study in metropolitan Boston that 7 showed that most of those families into seven out of a hundred 8 and twenty-six suburban towns and none of them are the ones 9 with competitive schools. Many are the one with the least 10 adequately funded schools and the highest dropout rate. So 11 it's suburban but it's suburban of a different color and a 12 different school, and it does not provide the same kind of 13 access. 14 Q How do the social backgrounds of those middleclass Latino 15 and black students you were describing differ from those who 16 bear white counter-parts in white suburbs? 17 A This is one of the issues that the College Board is 18 looking at in a study right now of the High Unequal Education 19 Attainment of Middleclass Children in this country. There are 20 -- many suburban communities around the country are 21 collaborating because we have the disturbing differences 22 between black so-called middle class achievement and white 23 middleclass achievement. 24 When you look under this data there's many 25 differences between middle class black and white in this 103 1 country on an average. Middleclass black typically do not 2 come from a family with the same kind of educational history. 3 They don't come from a family the same kind of financial 4 resources. In this country, the average black family has only 5 about one tenth the wealth of the average white family, for 6 example. The wealth gaps are much bigger than the income gaps. 7 They're much less likely to be homeowners. They're much less 8 likely to live in a stable community. They're much more likely 9 to have a single parent. Most middleclass families have a 10 network of middleclass relatives that support them through 11 trouble. Most middleclass black families and Latino families 12 have work with low income, and families that they have to 13 support through trouble. Most middleclass black and Latino 14 areas are near poor black and Latino areas. That's why the 15 housing market works. So those kids are exposed to many more 16 negative peer group influences. 17 There's a wonderful set of studies done by a 18 psychologist at Northwestern who grew up in a community like 19 this, who wrote this book called "Black Picket Fences," who 20 explains that being middleclass is not the same across racial 21 lines. Families are less middleclass. They have less 22 middleclass network, resources, respect, connections. Their 23 middleclass is much more vulnerable. Their ability to isolate 24 their children from lower class and negative influences is 25 much less. And as you noticed, for example, in testimony we 104 1 just heard, Erika was telling us how she had to cut herself 2 off from her community to make it. This is the experience of 3 many of our middleclass students at Harvard and other 4 universities. They have been in situations that have so many 5 negative influences that they or their parents had to decide 6 to cut themselves off almost completely from their setting in 7 order to have a chance to make it in the educational process. 8 There's a difference. There's a very dramatic 9 difference even if you are so-called middleclass. And there's 10 a danger of not remaining middleclass and being exposed to 11 non-middle influences. It's much greater for minority 12 students. 13 There's also preferential treatment in schools. 14 I've had professional colleagues at all the great universities 15 that I've been at who are African-American or Latino and 16 almost always they tell me that one or more of their children 17 have been placed in a lower track when they first go to their 18 school. And they are professional Ph.D. from the greater 19 universities in the country. And they go and they raise hell 20 with the principal and they get the kid put back in the right 21 track, but they are presumptively put in the wrong track, 22 given the wrong advice because of their skin color. They are 23 children of the most educated people in the United States, but 24 they are seen as black or Latino, and they are assumed to be 25 better off in a lower track course until somebody tells them 105 1 that their parents are Harvard, and then the school says, I'm 2 so sorry, Doctor, we didn't know. We thought this child was 3 black. 4 Q How about -- that's in some of the more intergraded 5 schools, how about in the more segregated suburban middleclass 6 black and Latinos schools is the quality of those schools the 7 same as the quality of white suburban schools? 8 A No. 9 Q Tell us why. 10 A Well, basically what you have happened when you go 11 through racial transition typically -- 12 THE COURT: Hold on one second. Stay exactly where 13 you are. 14 (Short Pause in Proceedings.) 15 BY MS. MASSIE: 16 Q Professor Orfield, you were saying I think, you were 17 starting to say how the schools that have segregated Latinos 18 and black, more middleclass suburbs are different from those 19 than white suburbs. 20 A Yes. 21 Q If you could develop that please? 22 A As the housing works typically after a community goes 23 through racial change, it then gets exposed to lower income 24 families pretty rapidly so oftentimes if you look at a typical 25 pattern in a community that's on the frontier of racial change 106 1 the initial minority families that move into the communities 2 will be middleclass people who are seeking middleclass schools 3 and often integration. But after they come in, oftentimes the 4 housing is no longer shown to whites, the housing market 5 shrinks, and within a few years they begin to break it up into 6 rental housing and show it to poor people, and it begins to be 7 targeted with Section Aid and other kinds subsidized housing. 8 And you get more families who are connected to basically 9 non-middleclass backgrounds. 10 And those schools, even middleclass schools that 11 serve minority families typically have substantially higher 12 numbers of low income children. Many of the teachers that are 13 in suburban schools are completely unprepared to teach 14 minority kids. They have no experience or comfort, and they 15 have lots of stereotypes. This goes to the tracking and 16 placement and so forth and they often leave schools when they 17 go through racial transition. 18 Minority schools have a much greater difficulty 19 recruiting teachers than white schools do partly because the 20 vast majority of the teachers who are trained are not trained 21 in how to work in a diversed setting and are white themselves. 22 What you basically have happened is a downgrading of 23 the curriculum that takes place. You go through lots of 24 teachers and through the lack of a critical mass of students 25 who are prepared to take certain kinds of courses. 107 1 You also have a different kind of structure of a 2 group that takes place in the classes. Gangs tend to 3 penetrate in neighborhoods a few years after they go through 4 racial change which has a very, very negative effect on high 5 schools. There's kind of a systematic process of detachment 6 from mainstream and downgrading of the educational 7 opportunities that takes place after racial transition. And 8 you can see it right now in city-after-city, 9 community-after-community. And people will describe it. If 10 you go into any of those communities they'll describe what 11 happened and when. But the net process is that there's a 12 narrowing of the educational opportunities that follow a 13 racial transition even when it starts out as the middleclass 14 transition in a middleclass community. And middleclass 15 minority families are easily troubled by this and often leads 16 them to make a concession or move to try to get away from it. 17 Q What's the fundamental cause of the dynamics that you're 18 describing? 19 A Well, there's an interaction between residential 20 segregation, school segregation, belief in the society, special 21 structure to perpetuate inequality. There's a whole system of 22 ghetto station and inequality that has its roots in the earl 23 20th century, never been broken in our largest metropolitan 24 areas. That's the patterns that have really not changed 25 significantly in one and a half century, in these large 108 1 industrial centers of hyper-segregation. They are less extreme 2 in some places in the west and some multi-racial metropolitan 3 areas. 4 Q Could I summarize those causes that you just said, they 5 apply safely with the word racism? 6 A I usually don't use that word to define it. It doesn't 7 advance the debate very much. But I think -- what I like to 8 talk about is discrete elements of racial inequality. There is 9 a system of residential segregation. And there's lots of 10 innocent victims in it. Both the whites would like to remain 11 in an intergraded place, are not offered the option because of 12 the way -- no pure whites are shown into the community. The 13 minorities who would like to live in a intergraded place have 14 almost no opportunity because of the extreme residential 15 segregation and so forth. And there's lots of innocent 16 bystanders who contribute to this process without being 17 explicitly racist just by having belief and fear that they wish 18 weren't true, and that they fear are true. 19 There are a lot of other institutions that 20 perpetuate just by not doing anything to change it. In other 21 words, it's a deeply rooted set of social structure and 22 practices and beliefs that have a very strong tendency to 23 perpetuate and spread itself unless there is explicit 24 intervention to stop it or to create a different option, and 25 those are difficult to do. And they can only be done when you 109 1 decide to do them consciously. 2 Q How long as we as a nation been engaged in policy 3 measures like that to intervene in those structures, and in 4 those dynamics of racial inequality. 5 A Well, in terms of school segregation in my judgment we 6 intervened primarily in the period 1965 and 1973, and mostly in 7 the South. We really never did desegregate our big metropolitan 8 areas in the North. And we have abandoned making any 9 significant effort to do that by the middle 1970s an early 10 1980s. And now in 1990s we are dissolving what we have a 11 desegregation plan in much of the country. Even where we had a 12 plan or a consent decree or something -- like you had the 13 Milliken case here in Detroit, it was dissolved. In our book, 14 "Dismantling Desegregation" we actually at the effects of that 15 and found it was dissolved without achieving any of its 16 educational goals. 17 THE COURT: That was the Detroit school system? 18 THE WITNESS: No, it in Grand Rapids. The Milliken 19 II case, it was decided educational remedies which we, in our 20 judgment, were never implemented significantly to make a 21 difference for kids in Detroit. 22 THE COURT: So it was both resolved as well as 23 implementation. 24 THE WITNESS: Yes. 25 BY MS. MASSIE: 110 1 Q Touching just briefly on something that we'll come back 2 to later which is the question of integration of higher 3 educational institutions, how long have we been giving that a 4 try? 5 A There never has been a very large push for integration of 6 higher education in public policy terms. No state university in 7 the United States, to the best of my knowledge has ever been 8 faced with fund cutoffs for non-enforcement of discrimination 9 requirements by the federal government. Many hundreds of 10 school districts face that. 11 The standards that were issued by the Department of 12 Health, Education and Welfare in the 1970s that effected the 13 nineteen states that had de-jury segregation of the higher 14 education institution were never enforced, and they were 15 substantially abandoned by them in the middle of the 1980s. 16 I think we've had very little effort to integrate 17 our higher education institutions from public policy. Most of 18 it has come from inside the universities, from their own 19 voluntary efforts, and most of that come from faculty and 20 administrators in most universities who decided that they 21 needed to do it for educational purposes and for the purposes 22 of making admissions in the university. 23 Q And that's -- something like that is what's involved 24 here, is that your understanding? 25 A That's my understanding, yes. 111 1 Q And those programs, affirmative action programs, how long 2 have they been around? 3 A Well, they've been around in significant levels since the 4 late 1960s. 5 Q When we've tried -- it's never been easy -- but when 6 we've tried, we've made forward progress; is that right? 7 A That's correct. 8 MS. MASSIE: I have two quick things I would like to 9 touch on and then I think it might be a good point to break 10 for lunch. 11 THE COURT: Great. 12 BY MS. MASSIE: 13 Q The first thing I want to ask you and I don't want to 14 spend too much on this, but can you say something about the 15 relationship of state and federal policies of the public sector 16 in housing segregation and discrimination? 17 A Yes, there's a very pervasive involvement of federal 18 policy and significant involvement of local policy particularly 19 in housing segregation. Of course, particularly -- and this 20 deeply affected our older cities and our older metropolitan 21 areas because the federal government itself permitted and 22 sometimes required segregation of itself up through the early 23 suburbanization process following World War II through -- 24 through underwriting standards, their the FHA policy, through 25 its Veterans administration policy all of which favored 112 1 segregated development of suburbia, and denied funding for 2 inter-city communities where most minority families lived so 3 that white veterans got benefits to allow them to move to the 4 suburbs and blacks and Latinos didn't since there was no 5 housing available to them in the segregated housing markets in 6 the areas where the Veterans' Administration, or Federal 7 Housing Administration would issue mortgages. 8 Public housing which served a very a substantial 9 fraction of minority families, black families in particularly 10 and a very, very small fraction of white families, 11 overwhelmingly go to the segregated neighborhood and has been 12 segregated since its inception. Virtually every city that's 13 been sued has been found guilty of intentional segregation of 14 its public housing. And that was a normal practice and it was 15 accepted for a very long time. And it built the worse kind of 16 school segregation, we find most extremely unequal schools in 17 the area of segregated public housing. 18 Detroit, of course, is the site of the most 19 disastrous housing policy of the 1970s, where you had the 235 20 cancel the home ownerships programs -- for the whole country 21 were really ruined here in Detroit by the incredible views 22 that took place that led to things this block that Erika lived 23 on with nobody living there. Basically the federal government 24 underwrote sales in a very segregated pattern of very inferior 25 housing. HUD became the principal homeowner in many areas of 113 1 Detroit. 2 Now that same program allowed white families to 3 leave the city, and to go into the suburbs and become 4 homeowners. There the way it was administered was almost 5 totally segregated. The U. S. Civil Rights Commission did a 6 major study of it. There were a number of books that were 7 published that. 8 The Nixon Administration shut down that entire 9 program largely because of the catastrophe that took place in 10 Detroit. 11 There was also -- Detroit was very important in the 12 ending of the effort to integrate suburban housing because of 13 the violent resistence that took place in Warren, Michigan to 14 subsidized housing in the early 1970s. That led to the 15 abandonment and actually with -- strongly related to the 16 firing of Secretary George Romney as Secretary HUD, who was 17 trying to provide housing opportunities in the Detroit suburb 18 community. 19 In other words the reasons why Detroit is so highly 20 segregated now are very, very dramatically related to Federal 21 Housing Policy that goes over a number of decades, and really 22 never has been corrected. 23 Q So if I understand what you're saying, tying back into 24 what you were saying some before, it's the policy choices that 25 we make and enforce that determine levels of segregation and 114 1 integration in housing and schooling and so on. 2 A Policy choices are very important. They're not the total 3 cause, of course, but they certainly do direct and shape a lot 4 these developments. 5 Q And without making policy choices against segregation 6 we've never made progress against it. 7 A It's very, very deeply engrained in many expectations and 8 processes in our society now. So if we don't work against it, 9 it spreads. 10 Q I would like you to turn very, very quickly to Exhibit -- 11 I think it's B. 12 THE COURT: Let me ask a question about the housing 13 program. Was it 135? 14 THE WITNESS: 235. 15 THE COURT: 235. Give me the history a little bit, 16 one more time. 17 THE WITNESS: Well, it was created by the 1968 18 Housing Act which was the biggest housing act in American 19 History. 20 21 THE COURT: What was the intended legislative 22 purpose? 23 THE WITNESS: The purpose of 235 was to permit low 24 income families to become owners. And the way it was 25 administered, typically the white families who got the 235 115 1 Program, got to buy low-cost housing. Many of them left 2 intergraded areas in the cities. 3 The black families who got it almost ended up in a 4 segregated pattern in the city. And they often were sold -- 5 they were families without any home ownership experience. And 6 they often came directly out of a house project and they were 7 sold houses that was cosmetically repaired but had terrible 8 flaws. And here in Detroit there was a huge appraisal scandal. 9 So there were many, many realtors who became appraisers and 10 gave artificial appraisals to these homes that were 11 nightmarishly inadequate. A low-income black family would 12 move into them. A lot of families would make -- huge profits 13 were made by realtors that sold these houses. And families 14 would move in, and the first thing that broke they couldn't 15 fix because they didn't have any money. And then HUD would 16 repossess the house. And sometimes HUD would have all the 17 houses on a block. There was no market for them because the 18 neighborhood was deteriorated. So eventually HUD had to 19 bulldoze them, and that created these farm lands in the middle 20 of the city. 21 THE COURT: Thank you. 22 Do you want to break here? 23 MS. MASSIE: I guess have one very quick question. 24 BY MS. MASSIE: 25 Q On the Exhibit B which is entitled "Diversity and Legal 116 1 Education: Student Experiences in Leading Law Schools." This 2 is a study you did with the Civil Rights Project? 3 A No, it wasn't done on the Civil Rights Project. 4 Q Oh, I'm sorry. 5 A Dean Whitla, my co-author, did this through his staff. 6 And I worked with him as an author. We published it through 7 our project. 8 Q It's a survey of law students at highly ranked law 9 schools and their views on the level of diversity and 10 integration in their classrooms and other experiences. 11 A That's correct. 12 Q The reason I raise is it came up yesterday in testimony 13 about how much experience students at law schools have 14 generally had with members of other races. 15 A Yes. 16 Q And if I direct you to I believe it's Table Four. It's 17 Table Two and Three which are found page nine and twenty-eight. 18 A Yes. 19 Q And some of the data is narratively summarized in that 20 final paragraph down at the bottom of the page. And this data 21 shows that around half of the law students had absolutely no or 22 very little contact with people of different races before law 23 school; is that right? 24 A Yes. 25 MS. MASSIE: That's all I have on this. 117 1 A I'd like to add on this. The link with this school 2 segregation thing, one of the things we found from this study 3 was that there virtually no minority students in either 4 Michigan Law School or Harvard School who came from segregated 5 backgrounds. They had to have intergraded experience before 6 they got there to get there, as best we could see. 7 Q Where a lot of the white students had led completely 8 segregated lives? 9 A That's right. 10 MS. MASSIE: If we could break now, that would be 11 great. 12 THE COURT: We'll break until 1:35. 13 (Court recessed, 12:15 p.m.) 14 15 16 17 18 19 20 21 22 23 24 25 118 1 (Court back in session.) 2 MS. MASSIE: Judge, we are going to 3 be proposing an Exhibit 200, it's on its way over. 4 Just to give you the info on what it is, we realized 5 none of our testing experts arrived, and we realized 6 that the chart that we had with the different curves 7 of LSAT scores used percentages of white, black, 8 Native Americans and so forth applicants, when we 9 wanted, in fact, both the chart with percentages and 10 also a chart with absolute numbers. 11 So, we have corrected the title of 12 the chart you guys already have and created a new 13 chart which reflects absolute numbers, which I will 14 be handing out at break shortly. 15 THE COURT: Okay. Let us know which 16 one it is and we'll just replace it.. 17 MS. MASSIE: Just so it's clear, 18 proposed Exhibit 199 will be exactly the same except 19 its title is now explicit about the fact that it 20 reflects percentages of students, rather than 21 absolute numbers. 22 And Proposed 200 will reflect 23 absolute numbers. And if I can approach. 24 THE COURT: Yes, because I don't have 25 either one of those. GRUTTER -vs- BOLLINGER, ET AL 119 1 MS. MASSIE: You should have an 2 incorrect and now a corrected one. 3 THE COURT: Okay. Which is which 4 now? The first one is 199, okay. 5 MS. MASSIE: And you already had a 6 199. And the only thing that's different about this 7 199 is the title is longer and more precise. 8 THE COURT: Where did I have a 199, 9 because I have not seen a 199. 10 MS. MASSIE: From this morning you 11 had a 199. 12 THE COURT: He can throw the old ones 13 away. 14 MS. MASSIE: Throw away the earlier 15 199 only, right. 16 THE COURT: Okay, got it. 17 BY MS. MASSIE: 18 Q. Professor Orfield, when we broke you were talking 19 about how black and Latino students in law school 20 all had had substantial interracial contact in 21 contradistinction and contrast with their white 22 classmates. 23 What does that mean, why is that? 24 A. Well, if you look at the report that we did from the 25 Michigan and Harvard service, it basically shows GRUTTER -vs- BOLLINGER, ET AL 120 1 that for African Americans almost all of them had 2 had significant interracial contact either 3 residentially or in school or both. And the same 4 was true for Hispanics, but half of whites had not. 5 I think the reason is that there's 6 almost never an adequate preparation given for all 7 the skills you need to succeed in a place like 8 competitive law school in the segregated educational 9 environment. 10 And basically for minority students 11 who go to elite white institutions in this society, 12 they have to make a transition to a middle and upper 13 class institution that's overwhelmingly white 14 simultaneously. 15 So, they have to make a social class 16 and a racial transition almost instantly and 17 fluently, and to be able to perform very highly in 18 that new setting very fast. Because there's very 19 few support systems in elite colleges and 20 universities or of professional schools. 21 And so if they don't have that 22 preparation on, which is usually both ability to 23 understand and interpret that situation and the 24 academic skills that you need to make it, they have 25 to be really remarkable, or they don't have a GRUTTER -vs- BOLLINGER, ET AL 121 1 reasonable chance. 2 Also students who are in segregated 3 background typically don't even hear about a lot of 4 the options and are not recruited and are not in 5 networks where they know people have been to those 6 institutions, don't have all the kinds of contacts 7 and networks that lead you into different kinds of 8 choices in your life. 9 I've had a good many African 10 American, Latino undergraduate students and very, 11 very talented ones who never thought about a 12 graduate school until I talked to them about it. 13 Nobody had ever mentioned it to them 14 in their lives even though they have been in a great 15 university. And no one in their family ever had 16 contact with that possibility. 17 So, you have to be in a place where 18 you hear about the possibilities, and where there 19 are real connections and where you can get what you 20 need. 21 And what you need to survive is both 22 academic and an understanding of the setting that 23 you're going into. And those are very, very hard to 24 get in isolated situations. 25 Q. In that our society doesn't provide the majority GRUTTER -vs- BOLLINGER, ET AL 122 1 black, majority Latino, majority minority 2 institutions with the resources they would need to 3 properly train people for that kind of opportunity? 4 MR. PURDY: I am just going to object 5 on foundation. 6 THE COURT: Overruled. 7 A. Well, there's different kinds of resources. 8 Specifically those institutions lack tangible 9 resources like money and books and libraries and 10 other things that we heard discussed this morning. 11 But then there's other things that 12 are very important, which is learning how to 13 function across these racial and class lines. But 14 you really can't provide adequately in a segregated 15 setting. Because the way you learn how to do that 16 is by doing it, and becoming familiar with it. 17 And if you don't learn all of those 18 cues and ways that things operate and so forth, you 19 have a lot of difficulties when you get into 20 different kinds of institutions. 21 Any of us who are white can just 22 imagine ourselves trying to function in an all black 23 inner city school, where we didn't know anything, 24 what the expectations were, the customs, or what the 25 underlined social relationships were, anything else. GRUTTER -vs- BOLLINGER, ET AL 123 1 There is all kinds of knowledge that 2 you get from schools. Also you tend to have the 3 teachers who have connections with great 4 universities, go into the schools where the parents 5 of the students are from those same places. 6 So there's a very self reinforcing 7 place. I haven't done the study here, but we did in 8 the metropolitan Chicago where we found the 9 University of Illinois teachers taught in the better 10 suburbs. 11 The teachers from other teacher 12 training institutions that were not as competitive, 13 taught in less competitive places. And the teachers 14 that taught in the inner city did not tend to come 15 from very strong colleges and universities. 16 And they didn't have the connections, 17 so they didn't suggest their students went into 18 those networks. And they didn't know anybody to 19 call to explain if a student had talent that didn't 20 show up on his records, or how would he get. Like 21 the suburban school would have, for example. 22 So, there's all kinds of things that 23 exist in your typical middle class and upper middle 24 class school both in terms of resources, 25 connections, levels of competition, knowledge of GRUTTER -vs- BOLLINGER, ET AL 124 1 options and so forth. They just don't exist in most 2 segregated schools. 3 Most of the students who come out of 4 those schools who really make it are incredibly self 5 driven, or they know somebody who is mentoring them 6 very, very strongly. Or they would never make a 7 connection like that. 8 Q. Let's change the subject a little bit. We've been 9 speaking mostly about black students up to now? 10 A. Right. 11 Q. How do these same kinds of questions come out when 12 we're looking at the Latino student population? 13 A. I think that's a really good question, since the 14 Latino student population is just exploding in the 15 country. It's gone up by orders of magnitudes since 16 the '60s. 17 Latino students are even more 18 segregated then black students in all of the 19 United States today, and they have been throughout 20 the last several years. 21 And they tend to be isolated in big 22 cities and metro areas of relatively small number of 23 states. The nearest one here is metropolitan 24 Chicago, of course. 25 And they tend to be in very inferior GRUTTER -vs- BOLLINGER, ET AL 125 1 schools, and they also tend to have to deal with 2 additional problem, particularly for recent 3 immigrants of language, and linguistic isolation in 4 the residential communities. As well as it's an 5 isolation by race and class. Those are really, 6 really hard problems. 7 In our college admissions processes, 8 we don't consider fluency of two languages to be an 9 asset, we only measure English ability. 10 And any of us who would try to get 11 admitted to competitive schools in Spain would 12 probably not do too well, no matter how intelligent 13 we were. 14 So, you have to think about this as 15 another very large great disadvantaged population. 16 Latino students are much more likely not even to 17 make it through high school, and they're less likely 18 to go to college than the black students, if they do 19 graduate from high school. 20 And they're very often very poorly 21 prepared for making the kind of transition that we 22 talked about between two different worlds. 23 Q. Do we have enough data on the Native Americans 24 student population to make similar kinds of analysis 25 GRUTTER -vs- BOLLINGER, ET AL 126 1 and judgments? 2 A. The Native American student population is very 3 poorly represented. It has a fairly high drop out 4 rate, and it has not been studied very much and 5 doesn't appear in large enough numbers in most of 6 our national surveys to describe in much detail. 7 And, of course, represents hundreds 8 of different kinds of communities within the Native 9 American population. But their general problems are 10 similar. 11 Q. There is I notice that at one point in your report, 12 there is a high correlation of going to a majority 13 Native American school, and the level of poverty of 14 the students at this school? 15 A. That's right. 16 Q. So there's that similarity that can be empirically 17 shown? 18 A. Yes. I did work when I was in college at 19 reservations in northern Minnesota and they were 20 desperately isolated. Particularly people in tribal 21 communities are experiencing extremely high poverty 22 concentrations. And very inadequate schools, lots 23 of prejudice, isolation. 24 Q. Nationally, what percentage of black students in K 25 through 12 attend segregated schools? GRUTTER -vs- BOLLINGER, ET AL 127 1 A. More than two-thirds. 2 Q. And nationally what percentage of Latino students in 3 K through 12 attend segregated schools? 4 A. About 70 percent. 5 Q. What are the implications of what you've testified 6 to about educational segregation and inner quality? 7 Well, two things, we'll take them one at a time. 8 First, access to college, and second 9 achievement in college? 10 A. Well, if you think about access to college, you're 11 thinking about a number of different things. First 12 of all, you're thinking about whether you acquired 13 the precollegiate skills that you absolutely have to 14 have to survive in college. 15 Which are basically skills about 16 research, writing analysis, basic mathematical 17 computational skills and so forth. And increasingly 18 fairly high level of math preparation. 19 Those skills are very hard to acquire 20 in a lot of segregated schools, and they are fairly 21 normal in middle class schools. There's a default 22 expectation that students in middle class, upper 23 class suburbs will receive those and that they will 24 be taught by people who actually know the subject, 25 and they will be at a level that's appropriate GRUTTER -vs- BOLLINGER, ET AL 128 1 preparation for college. 2 That does not exist in a lot of 3 central segregated schools. There's not the level 4 of competition, there's not the level of training by 5 the teachers. And the classes are not operated at a 6 level that actually perhaps you to meet the minimum 7 requirements of the collegiate environment. 8 When I was a faculty member at the 9 University of Chicago, we would routinely--my 10 Admissions Office would routinely reject 11 valedictorians from Chicago high school, most 12 Chicago high schools because of the experience that 13 they could not survive for a single quarter on our 14 campus. 15 Even if they were the very, very best 16 student in their school, there was no way in the 17 world they could have acquired the skills, you need 18 to be a minimally adequate student in our college. 19 No matter how intelligent they were as a person, 20 because preparation did not exist in their 21 community. 22 So we would--I didn't reject them, 23 but our Admissions Office would reject them all the 24 time. I once had a student who was the best student 25 in many years in a segregated inner city school in GRUTTER -vs- BOLLINGER, ET AL 129 1 Washington, D.C. who came to the University of 2 Chicago and she was my advisee. 3 And she had never gotten less than an 4 A plus in her life and she had been leader of every 5 activity, and she could not survive the first 6 semester of our classes. And she had a mental 7 breakdown. 8 And nothing about it was her lack of 9 intelligence ability or an education, it was simply 10 that she was in a completely inadequate preparation. 11 Now, in logical preparation you need 12 to understand what you need to do to get ready for 13 college. We did a survey of several thousand 14 students in Indiana, we found that most students 15 whose parents hadn't been to college really didn't 16 know what courses they needed to take to get ready 17 for college, and they often didn't take them. 18 Even though they planned to inspire 19 to go to college, we found the same thing in senior 20 surveys that were done in Chicago. Many students 21 believed they were ready, when they weren't ready in 22 any way and nobody had ever told them differently. 23 Many students in isolated communities 24 have no way of knowing what they need, and the 25 counselors in big city schools are typically GRUTTER -vs- BOLLINGER, ET AL 130 1 overwhelmed with all kinds of non-academic 2 counseling. First of all, community problems and 3 reporting requirements and so forth. They have 4 almost no time to work with students. 5 The students when we would survey 6 them would say, they have almost no information 7 about college from their own communities or from 8 their parents, because often times nobody there has 9 been to college. And there is no network. 10 The colleges I've taught and I teach 11 in my graduate seminars on college access issues, 12 classes that included many admissions officers from 13 colleges around the country, or people who have been 14 admissions officers. 15 They routinely report that they do 16 not recruit in most central city high schools at 17 all, because there's nobody there that they could 18 possibly get admitted who could make it on the 19 campus. 20 I have no idea whether that pattern 21 is true here, but it is in much of the country. And 22 the reason they don't recruit isn't because they 23 don't want to, it's that they know by and large that 24 there's very few students there who have been given 25 the tools they need to survive. GRUTTER -vs- BOLLINGER, ET AL 131 1 And most competitive colleges don't 2 have anything to really helps students who have 3 lacked basic tools. It's a very difficult, 4 difficult requirement at that stage. 5 So, the network isn't there, the 6 knowledge isn't there, the preparation isn't there. 7 And the college doesn't really reach out very 8 effectively into most of these particular kinds of 9 schools. 10 So, if a student gets to a selective 11 college from an institution like that, usually 12 there's an individual mentor or program or something 13 that's identified that student and just grabs them 14 and giving them the skills and motivated them and 15 filled out their forms and done all kind of things 16 that wouldn't normally happen. It almost never 17 happens by accident. 18 There was this study done on four 19 children growing up in Chicago in Woodlawn, a 20 community south of the University of Chicago, that 21 there was an experiment to help these kids in their 22 earliest years in school, it was pretty massive. 23 And 20 years later they tried to see 24 who got to college, and they found that nobody from 25 the whole experiment had gotten to college out of GRUTTER -vs- BOLLINGER, ET AL 132 1 that community without someone actually reaching out 2 and bringing them to college. Nobody had gotten 3 there by themselves. 4 So, you know, you have--it's not only 5 a lack of a network, it's really just nonexistent 6 connections between many of these communities and 7 what we need, particularly, to get into a 8 competitive college. 9 Q. Let me ask you about a slightly different category 10 of schools, a school that's somewhat more privileged 11 but it's still a segregated school, maybe like 12 Cass Tech or like a segregated suburban school with 13 an overwhelmingly black or Latino population? 14 A. Yes. 15 Q. What are the implications for college, first access, 16 and second achievement GPA for students from schools 17 like that? 18 A. Well, I have a special interest in magnet schools, 19 magnet from out of desegregation plans and I have 20 studied them in Chicago and all other places. 21 Magnet schools give you a chance, but 22 even though it may look like a very elite school 23 inside the city, it really looks like a very average 24 or low average school in suburban terms. 25 So, my own children went to a school GRUTTER -vs- BOLLINGER, ET AL 133 1 that was a magnet school in Chicago Public Schools 2 which was predominately African American, and had 3 some wonderful teachers and programs in it. 4 And that school was recruited, the 5 colleges do recruit from schools like that pretty 6 intensively. There are students who do make it, but 7 they're not nearly as well prepared as they should 8 be. 9 Basically that school as best I could 10 tell, was equivalent to a lower level of suburban 11 school. That school had the only debate team that 12 was left out of 65 Chicago high schools at that 13 time. 14 When the debate team went off to a 15 suburban school, they would see paid staff person 16 working with them, they would see a library, and 17 they see kids going to debate camp, they see this 18 and that and the other thing. And this school had 19 none of those things there. 20 They had a volunteer, they had no 21 materials, they had no room, they didn't have a 22 media center to support them, they had nothing. And 23 they were the only ones in the city who could even 24 amount a debate team at that point. 25 So you have these inequalities even GRUTTER -vs- BOLLINGER, ET AL 134 1 in the elite schools. We found that magnet schools 2 really on average offered a lot better set of 3 opportunities and teachers and background and so 4 forth than the non-magnet schools. But they were 5 not competitive with good suburban schools in terms 6 of the offerings. They had a lot of remarkable and 7 talented young people in them though. 8 Q. And would the increasingly common and segregated 9 suburban schools, and when I say segregated I mean 10 in this question mostly Latino and mostly black, is 11 that a comparable situation the way you just 12 described? 13 A. Well, what I see in the segregated suburban schools 14 is the pattern that existed in the city schools a 15 generation earlier. When they're in the stage where 16 there's still a middle class majority, but they're 17 going through economic transition as well as racial 18 transition. 19 Most of those segregated suburban 20 schools really aren't solid, stable middle class 21 schools, and they really do serve communities and 22 transition and on a downward slope. 23 And they don't offer the same 24 preparation or connections, and they are seen by 25 their own staff as deteriorating in many cases. And GRUTTER -vs- BOLLINGER, ET AL 135 1 they don't have the pizzazz of the city magnet 2 schools. 3 So, they function fairly well for a 4 while, and then they tend to deteriorate in terms of 5 their ability to prepare people for competitive 6 colleges. 7 Q. Would you be surprised if students coming from 8 schools like the ones we've been talking about, end 9 up with lower GPAs than their white counterparts in 10 college? 11 A. No. 12 Q. I'd like to shift gears here and talk about--George, 13 if you could put up Proposed 198. 14 THE COURT: Can I just ask a 15 question. Magnet schools, tell me a little more 16 history. 17 A. Judge, the magnet schools really are a result of the 18 desegregation plan that started in the 1970s 19 primarily, and they started out in the big scale in 20 Cincinnati and Milwaukee. 21 Congress then passed an amendment to 22 the Emergency School Aid Act to provide the funding 23 to create magnet schools around the country. That 24 was part of the segregation plan. And hundreds of 25 them were created. GRUTTER -vs- BOLLINGER, ET AL 136 1 THE COURT: Tell me what role they 2 play in the desegregation plans? 3 A. In the desegregation plans the problem that the 4 courts faced after the Milliken decision which 5 prevented suburban schools from being included in 6 the desegregation plans, was how to achieve any 7 desegregation in predominately minority central 8 cities and to hold any middle class residence of any 9 race. 10 The solution that was invented in 11 Milwaukee and Cincinnati was to try to create magnet 12 schools that would be integrated and offer a 13 specifically advanced curriculum, so that people 14 would choose to go to an integrated school in order 15 to get a better education. 16 THE COURT: So, part of it was 17 education, part of it was to keep the diversity from 18 moving out so that, at least, they had some that 19 they considered to be a better educational school? 20 A. Exactly. And the tool of it was to create something 21 so attractive that it would be diversed and it would 22 be reasonably stable. 23 And the other advantage they had was 24 there were new programs so they could create new 25 faculties and start new. And they could also offer GRUTTER -vs- BOLLINGER, ET AL 137 1 ideas that weren't really appropriate for everybody 2 in a particular neighborhood, but would be exciting 3 to some kids from all over the city. 4 So it offered a chance for a major 5 educational innovation when it's done the right way. 6 THE COURT: But part of the reason 7 was to try to attract those persons what may be 8 moving out and leaving? 9 A. Yes, that was the basic reason. 10 THE COURT: Okay. 11 BY MS. MASSIE: 12 Q. In other words, it was a substitute for mandatory 13 bussing programs in the like, or a component of 14 desegregation that was non-mandatory? 15 A. It was non-mandatory, and it did involve a major 16 educational experience when it was done right. Now, 17 we have what I call little magnets which had an 18 actual major alternative name plate magnet, which 19 just appeared they were magnets, but didn't really 20 have anything really strong. 21 THE COURT: Was it done right 22 anywhere? 23 A. Yes, it was done right many places. 24 THE COURT: Give me an example. Not 25 so much here, but why did it work there and why was GRUTTER -vs- BOLLINGER, ET AL 138 1 it done right there as opposed to other places when 2 it wasn't done right. 3 A. Well, for example though, Judge, that many cities 4 that are created racial and performing arts magnets. 5 They offer chances for kids to do professional level 6 preparation in the fine arts and visual arts and 7 performing arts, that didn't exist anyplace before. 8 Or science and math magnets that are 9 similar, that really offer very good competitive 10 training for college, that didn't exist in the 11 school district before. And they really do have 12 good staffs, and they really do do the job. 13 THE COURT: Did it accomplish 14 anything in terms of diversity? 15 A. Yes, I think it helped a lot of students who would 16 have been lost otherwise. It tended to stratify 17 kids on social class and income levels, because for 18 kids who had knowledge and connections figured out 19 how to get into them. But it did hold a lot of 20 middle class kids in the central city schools. 21 THE COURT: So certain cities it did 22 work? 23 A. Yes. And in certain schools and certain cities it 24 was quite successful. 25 THE COURT: Okay. GRUTTER -vs- BOLLINGER, ET AL 139 1 BY MS. MASSIE: 2 Q. If we could talk some about the situation in 3 California after the Regent's decision outlawing 4 affirmative action and in Proposition 209. And then 5 also the situation in Texas following the Hopwood 6 decision, that's where I would like to direct you 7 now. 8 A. Yes. 9 Q. And if I could get Exhibit 198. 10 A. We have better overheads in our classrooms. 11 Q. Tell us what this do, where did you get this data 12 and what is this chart about, what is it? 13 A. This data comes from the University of California 14 office of the president which collects data from all 15 the campuses in the University of California system. 16 And it shows us the change in 17 admissions in public law schools in California 18 between 1996 and 2000 by percentage of students 19 admitted. 20 So, it shows for University of 21 California Berkley, University of California Davis 22 and University California Los Angeles. 23 And you could see here for African 24 American students at Berkley it went from nine 25 percent to 3.2 percent. At Davis it went from .2 GRUTTER -vs- BOLLINGER, ET AL 140 1 percent almost none, to 1.9 percent. 2 And at UCLA where they tried to go on 3 the skills of the social classes as a method, they 4 went from 10.3 percent to 1.4 percent for African 5 Americans. 6 Now, in California the percentage of 7 blacks and the total population is much higher than 8 that. 9 Q. It's 7.5 percent, is that right? 10 A. Yes, that is right. That's the adult population, 11 the student population is higher. Now, for Mexican 12 Americans and Hispanics, the define was less from 13 9.9 to 7.3, and there was a gain in U.C. Davis and a 14 decline in UCLA was more modest too. 15 But you have to understand that 16 Mexican Americans were really radically 17 underrepresented, they are now about half of the 18 students in California. So, we got a very, very 19 small representation of a huge population. And it's 20 growing every year during this period. 21 Q. I'm sorry, you said it was about a third of the 22 population? 23 A. No, it's almost half of the students. And of the 24 population in 1999 California, according to the 25 Census Bureau is 49.8 percent Hispanic. And a GRUTTER -vs- BOLLINGER, ET AL 141 1 significant majority of the kids who are being born 2 in California are Hispanic now. 3 Q. I may have misunderstood, Professor Orfield, but I 4 think you said there was a gain in Latino enrollment 5 at U.C. Davis. And I see Latino enrollment falling 6 from 8.3 to 5.7 percent? 7 A. (Interposing) I'm sorry, I was looking at the wrong 8 line. That's correct, it's 8.3 to 5.7 percent. 9 Q. And what caused these declines in minority 10 representation? 11 A. Well, they were forbidden to consider race in 12 admissions. And they were allowed to do out reach, 13 but now that's been forbidden too by a more recent 14 California Supreme Court decision. 15 THE COURT: What do you mean by out 16 reach? 17 A. Out reach is recruitment for minority students. 18 THE COURT: Okay. 19 BY MS. MASSIE: 20 Q. Which is now forbidden? 21 A. By another subsequent Supreme Court decision, by the 22 California Supreme Court. 23 THE COURT: Won't let them recruit? 24 A. They won't let them recruit targeted away for racial 25 minorities. GRUTTER -vs- BOLLINGER, ET AL 142 1 BY MS. MASSIE: 2 Q. But these numbers, these fall 2000 numbers represent 3 what the schools were able to do in terms of 4 preserving some representation of minorities with 5 recruitment efforts? 6 A. Right. And many of these schools tried very hard, 7 all kinds of different efforts to make up for the 8 loss of the fraction. 9 Q. Were there similar outcomes in Texas following the 10 decision of the Fifth Circuit in the Hopwood case, 11 which at least for the time being eliminated 12 affirmative action there. Tell us what the 13 similarities and the differences were, if you would? 14 THE COURT: Let me ask a follow-up 15 question. You said it was a California Supreme 16 Court case that indicated that the universities 17 couldn't do out reach and recruit? 18 A. It was actually a case on contracting from San Jose. 19 THE COURT: You know the name of the 20 case. 21 MS. MASSIE: It's a high voltage 22 case, I can get you the cite. 23 THE COURT: Would you mind? 24 MS. MASSIE: Not at all. 25 A. People in California in higher ed believe that it GRUTTER -vs- BOLLINGER, ET AL 143 1 restricts them equally because it says you can't do 2 any racial-- 3 MS. MASSIE: It's a contracting case 4 that construes Proposition 209 to prohibit all forms 5 of directed and targeted out reach and recruitment. 6 THE COURT: When you get a chance, 7 you can just give me a cite of it? 8 MS. MASSIE: I can give you a copy. 9 THE COURT: Thanks. I'm sorry, I 10 didn't mean to interrupt you. 11 MS. MASSIE: No problem at all. 12 A. I have some Texas statistics here. The year after 13 Hopwood at the University of Texas at Austin which 14 has the selective, highly selective law school in 15 Texas, there's an 87 percent drop in African 16 American students. It went down to four black 17 students in the entire law school entering class. 18 And it was a 38 percent drops in Hispanics. 19 And the following year the African 20 American numbers went up to-- 21 THE COURT: (Interposing) Can I go 22 back to just one thing. Just back to California for 23 one second. 24 A. Yes. 25 THE COURT: When the proposition came GRUTTER -vs- BOLLINGER, ET AL 144 1 in, and again a proposition that I probably should 2 be more familiar with it, but I'm not. 3 Was anything in there other than they 4 couldn't use race as a criteria or underrepresented 5 minority whatever it said, was there anything else 6 that they couldn't use, was there anything? 7 A. No, they could use anything else. 8 THE COURT: They could use anything 9 else? 10 A. Yes. And many thought and I know it was often said 11 in the arguments for the Proposition, that social 12 classes work just as well. 13 THE COURT: Okay. Back to your 14 answer. 15 BY MS. MASSIE: 16 Q. If you can tell us about Texas, we're kind of going 17 back and forth between the two, because there's 18 questions about undergrad outcomes, as well as law 19 school outcomes and all of that. 20 But if you can tell us about Texas 21 for a second, the law school context. Tell us what 22 the similarities and differences are? 23 A. In Texas there was a small recovery in terms of 24 black students in the second year that went from 25 four to eight, but it was still a drop of about 75 GRUTTER -vs- BOLLINGER, ET AL 145 1 percent at the University of Texas at Austin. 2 State wide there was a dramatic drop 3 in applications to law school, which is one of the 4 things that I don't think people really thought 5 about following a loss of affirmative action is kind 6 of a loss of hope that takes place in many minority 7 students. 8 So it went down from 686 applications 9 to 353. I believe these are figures excluding Texas 10 Southern, which is a historically black law school 11 and was not ever participating in affirmative action 12 in any case. 13 MR. PURDY: Excuse me, your Honor, I 14 don't mean to interrupt, but Professor Orfield is 15 reading from something and I'm not sure what the 16 source is. We don't have that document in front of 17 us. 18 MS. MASSIE: Fair enough, I 19 apologize. May I approach? 20 A. It's just my notes. 21 THE COURT: Why don't you show it to 22 the counsel. 23 MS. MASSIE: The Texas figures are in 24 the remarks and exhibits. 25 A. If I could get the numbers, now that I lost my GRUTTER -vs- BOLLINGER, ET AL 146 1 notes. 2 MR. PURDY: Professor, I'll give it 3 back. 4 MS. MASSIE: For everybody's 5 reference, the tabulation for Texas which include 6 one chart, if I remember correctly, that has 7 numbers. In one it has percentages of people of 8 different races are at tab 131. 9 Judge, I'm going to get that out for 10 Professor Orfield. 11 THE COURT: Okay. 12 BY MS. MASSIE: 13 Q. So back on the Texas Law School question. 14 Summarizing, there were similar effects, somewhat 15 less sharp than the U.C. law schools and there's 16 been slight rebounds, is there a fair or an unfair 17 summary? 18 A. That's a pretty good summary. 19 Q. In both states-- 20 A. (Interposing) Yes, go ahead. 21 Q. The elimination of affirmative action in admissions 22 in both states, resulted in a sharp and precipitous 23 decline in the numbers of black and Latino students? 24 A. Yes. 25 Q. Now, I want to ask you a couple of questions about GRUTTER -vs- BOLLINGER, ET AL 147 1 Asian American students, and particularly in 2 California where Asian Americans are such a large 3 percentage of the population. 4 So, it's been some suggestion here at 5 trial which you haven't heard since you only came in 6 today, that Asian Americans gain from the 7 elimination of affirmative action. 8 But, in fact, the number of Asian 9 Americans enrolled in law schools in California has 10 remained virtually constant before and after Prop 11 209, is that right? 12 A. That's correct. 13 Q. Have there been similar effects in terms of 14 undergrad education in Texas and California? 15 A. Well, in undergrad education there was a very 16 dramatic drop at the University Texas at Austin, and 17 there was a very substantial recovery following the 18 limitation of a dramatic scholarship program 19 targeted at segregated high schools. 20 But they are still--they're nearly 21 back to where they were before Hopwood, in terms of 22 undergraduate admissions at the University of Texas 23 at Austin. Through a very expensive program and 24 actually admitting students with lower than average 25 test scores from segregated high schools. By giving GRUTTER -vs- BOLLINGER, ET AL 148 1 preference to those high schools. 2 Now, some of the other campuses in 3 Texas they have not had a recovery, and the 4 University of Texas A & M, for example, which is the 5 other much selective campus, has not been able to 6 recover. 7 Also I should explain enrollments 8 even before Hopwood were limited by testings, a 9 couple of testing systems that have been implemented 10 in Texas in the 1980s and early '90s. So that we 11 were already limiting an eligible pool pretty 12 dramatically. 13 And since Hopwood, the percentage of 14 minorities in Texas has grown significantly, and 15 even if we recovered back to the level we've been at 16 the time of Hopwood, the proportionate access would 17 not have been--because the percentage of whites and 18 the population is going down fast, and the 19 percentage of Latino is rising pretty fast in Texas. 20 Q. Let me back you up for one second. The plan and 21 operations in Texas is called the Texas ten percent 22 plan? 23 A. That is correct, for undergraduate admissions only. 24 Q. For undergraduate admissions only. And there are 25 similar plans they're sometimes referred to GRUTTER -vs- BOLLINGER, ET AL 149 1 generically as expert state plans in other states? 2 A. Yes. 3 Q. When was the Texas ten percent plan initiated and 4 adopted by the Texas state legislature and why? 5 A. It was adopted following the Hopwood decision, 6 because the legislators did not want to have that 7 kind of dramatic loss of minority enrollment. 8 And it was a collaborative effort 9 between the faculty members, the university 10 administrators and minority leaders and others in 11 the state legislature to put that plan together. 12 And it also involved a dramatic 13 downgrading of test scores as an admissions 14 criteria. 15 Q. It's the ten percent of what, what's the ten percent 16 about? 17 A. It's about ten percent of each high school in the 18 state. 19 Q. So the underline theory being since the K through 12 20 education is highly segregated? 21 A. You can get students who will be in the top ten 22 percent in the segregated schools who will be 23 eligible automatically for admissions to the 24 University of the Texas under that policy. 25 Q. But except, if I understand your testimony, except GRUTTER -vs- BOLLINGER, ET AL 150 1 at U of T Austin, there's been no success at all 2 that the Texas ten percent plan can claim, or am I 3 overstating. 4 MR. PURDY: Your Honor, object to 5 form. 6 A. I did not say that. What I said was it had not been 7 successful at Texas A & M to the same degree. And I 8 also would say at another one of those places we 9 looked at, University of Texas or Dallas it doesn't 10 appear to have been successful. But I have not 11 looked at every campus in Texas. 12 BY MS. MASSIE: 13 Q. Let's go back, if we can, to the U.C. law schools. 14 You were saying that the UCLA law school after 15 Proposition 209 adopted a class based system? 16 A. Yes. 17 Q. In its admissions process, to try to compensate for 18 the loss of affirmative action? 19 A. That's correct. 20 Q. Can you tell us about that? 21 A. One of my students--I served on the Registration 22 Committee who is an admissions officer at the 23 University of California at Berkley Law School, 24 studying UCLA and Berkley's response to the end of 25 affirmative action. GRUTTER -vs- BOLLINGER, ET AL 151 1 And what she describes is a decision 2 by Berkley to go to massive recruitment and changing 3 the way they evaluate a student's file. Much more 4 look at each individual student as an effort to try 5 to identify talents that were not identified by test 6 scores and other standardized measures. 7 THE COURT: That was UCLA? 8 A. That was Berkley. UCLA tried to do it to measuring 9 social disadvantage through indirect indicators like 10 poverty. I forget, they tried lots of of different 11 ones. 12 Berkley as you can see here was able 13 to recover a small part, up to 3.2 percent black 14 admissions, for example. 15 But UCLA had just a massive failure. 16 They went down from 10.3 three percent black 17 students, to 1.4 percent. So that the measures of 18 poverty and disadvantage, the status disadvantage 19 did not work to maintain diversity effectively in 20 anyway under that framework. 21 So, that's a huge cautionary note 22 about thinking that using poverty will get you a 23 diversity, and that it will provide for racial 24 integration. It just doesn't work in any kind of 25 straight forward or simple way. GRUTTER -vs- BOLLINGER, ET AL 152 1 BY MS. MASSIE: 2 Q. And these are admissions figures, right, they're not 3 enrollment figures? 4 A. These are admissions figures. 5 Q. Do you know off the top of your head, Professor 6 Orfield, how many students enrolled at U.C. Berkley 7 and UCLA in the fall of 2000? 8 A. Not off the top of my head. But I have seen the 9 data, but I have not memorized it. 10 Q. It's a very small number of, in particular black 11 students, but also Latino students given the 12 population in California, is that right? 13 A. The population in California now in terms of its 14 public school enrollment is about two-thirds 15 non-white, and about half Latino. 16 So, these are very dramatically 17 different from the composition of the state. And 18 not responding to the alternative efforts of the 19 schools, which have been substantial. 20 Q. One of the things that we've been talking about a 21 lot so far in this trial, is the question of--do you 22 need to get a hard copy? 23 One of the things we've been talking 24 about a fair amount so far in the trial is the 25 question of student activity in law school GRUTTER -vs- BOLLINGER, ET AL 153 1 admissions and its relationship to affirmative 2 action in admissions? 3 A. Yes. 4 Q. And the broad question I want to pose to you, and I 5 think there will be a number of different components 6 for our discussion of that, is why just becoming 7 less selective does not guarantee maintaining a 8 measure of integration and diversity in a law school 9 like the University of Michigan? 10 Put it a different way, why do we 11 need affirmative action? 12 A. If you're going to look at the University of 13 Michigan, for example. 14 Q. And let me interrupt you very rudely, I apologize. 15 Tell us what the data is behind this chart, it looks 16 like it was supplied by the LSAC, what is that, if 17 you can just say what the chart represents 18 graphically? 19 A. Yes. The Law School Admissions Council is the 20 organization that sponsors the law school admissions 21 test and kind of oversees its use. And it's the 22 institution that's responsible for the major 23 assessment of entering law students through 24 standardized testing. 25 And it sets rules and policies under GRUTTER -vs- BOLLINGER, ET AL 154 1 which those tests are supposed to be used, which 2 most of the colleges don't follow. 3 But basically the law school 4 admissions test gives you a score, and the law 5 schools tend to look for students along a certain 6 point on those continuum. And tend to use those 7 tests as one of their major criteria for admissions. 8 And they tend to be evaluated in 9 part, particularly by influential evaluation like 10 U.S. News who will report about how high an average 11 test score is on this test. And that effects who 12 applies to them and how they are viewed in the 13 profession and so forth. So this is a very 14 important tool. 15 The Law School Admissions Council say 16 it should never been used as the only way to select 17 a student for a law school, but sometimes it is and 18 sometimes there's absolute cut points and so forth. 19 The law school admissions test like 20 other standardized tests is not a reliable predictor 21 of an individual student's performance. It's a 22 moderately good predictor of a group of students 23 with a similar test score for the first part of 24 their law school career in terms of what their 25 grades are. GRUTTER -vs- BOLLINGER, ET AL 155 1 Law school admissions test has 2 nothing whatever to do with measuring whether you 3 will you be a good lawyer. There is no evidence to 4 show that it's linked to that. 5 Now, here if we look at this 6 distribution of scores, we'll see the University of 7 Michigan is selecting around this kind of average 8 score for its overall population in the 168 or 69 9 levels as I understand. 10 So, if the population that has almost 11 no minorities in the distribution of the test scores 12 is 13, an almost invisible line there. And 13 basically if it were to lower that average test 14 score, for the moment we're just considering this as 15 the thing that they're admitting on, they're 16 obviously admitting on multiple dimensions. 17 But if it were just test scores, if 18 they were to go down by ten points, they would 19 expand the number of students who would be eligible 20 to get in there by many times. 21 And most of the students who would be 22 included by lowering the standard, huge majority of 23 them would be whites. Because as you go down the 24 next several levels in test scores, the line of 25 increase in white eligible students increases much GRUTTER -vs- BOLLINGER, ET AL 156 1 more rapidly then the line of eligible black or 2 Asian or Mexican American students. 3 It's just a tremendously high 4 increase. So you'll be getting a huge number of 5 students that would be eligible, the vast majority 6 of them would be white. 7 Q. So, in other words, even if the average LSAT score 8 of people accepted to a school like the U of M Law 9 School were substantially lower than what it is, you 10 would still, if you were the school, have to have 11 affirmative action in order to maintain any level of 12 integration and diversity at this school because of 13 how much the white people out numbered everybody 14 else at all the points of the spectrum until you get 15 to the very low end of it? 16 A. Until you get very far down into the level of pretty 17 non-competitive law school admission. 18 Q. Right. 19 A. So, the problem that you're facing is like the 20 problem the admission officer at Texas A & M told us 21 about, when she was talking about what they tried to 22 do in recruiting minority students after it was 23 outlawed in Texas. 24 Their college was not one that 25 traditionally received significant minority GRUTTER -vs- BOLLINGER, ET AL 157 1 enrollment, it was viewed as hostile by many 2 minority students. 3 So, they would typically bring five 4 or 600 promising students to campus to get to know 5 the campus when they were allowed to do it. 6 After that was forbidden and that 7 they were allowed to do any targeted recruitment, 8 she said to get those five or 600 students, and if 9 they invited all the white students who had the same 10 test scores, they would have to invite 30,000. So 11 they stopped inviting anybody. 12 Basically the numbers get so large 13 you'd have to process applications from incredibly 14 large numbers of people. And you'd still have to 15 think about race in making your selection. 16 Because of the number of minorities 17 who would be even in a much larger pool, would be a 18 very, very small percentage of a hugely increased 19 number. 20 Q. Well, the numbers are large and the distributions 21 are quite different? 22 A. Yes, very different. 23 Q. Is that a way of summarizing? 24 A. Yes. 25 Q. This is 199. And this is the same data, except this GRUTTER -vs- BOLLINGER, ET AL 158 1 data is representing the number of students scoring 2 each range, it represents the percentage of 3 students, is that true? 4 A. Yes. 5 Q. Why does this graph look so different, it's kind of 6 an obvious question to ask, only because we 7 presented the wrong graph until the lunch break? 8 A. Well, this graph shows you the distribution of 9 student scores within each racial group. But it 10 doesn't show you the number of students who are 11 actually taking this test within each racial group. 12 So, as you can see that there are 13 overlaps, but there's substantial differences in the 14 distribution by race for all these groups that are 15 represented. 16 And you shift, the center of the 17 distribution shifts pretty dramatically downward for 18 the non-white population with blacks, Mexican 19 Americans, Puerto Rican, Native Americans, 20 underrepresented minorities. 21 But it doesn't show you is that the 22 numbers of those underrepresented minorities is 23 really much smaller than the number of white 24 students. So it gives you an inaccurate picture in 25 that respect. GRUTTER -vs- BOLLINGER, ET AL 159 1 It tells you about the distribution 2 of the students who do take the test, but it doesn't 3 tell you about the number who are taking them. Plus 4 the distribution. 5 Q. So, what does it say about the relationship of the 6 student activity of the law school and affirmative 7 action assuming, just for this question, that the 8 LSAT is going to be one important part of law school 9 admissions? 10 A. A school can become a lot more selective without 11 getting substantial minority representation and 12 becoming a lot less selective. And on this 13 dimension, it would probably have a huge increase in 14 applications to deal with. 15 So, it would have a lot more work to 16 do, and it would still be faced with the problem of 17 having to figure out how to get representation to 18 produce an integrated class. Especially in a place 19 like Michigan with such unequal preparation. 20 Q. In giving your earlier testimony about college 21 access, college achievement, inequalities in K 22 through 12 education, if you were to attempt to 23 eliminate the LSAT in law school admissions system, 24 and instead relied only on other academic criteria, 25 would you still have to use some kind of affirmative GRUTTER -vs- BOLLINGER, ET AL 160 1 action under those circumstances as well? 2 A. Yes, I believe you will. There was actually 3 proposals to eliminate SAT in the state of 4 California put forward by a Latino caucus and among 5 the University faculty. 6 And an analysis was done by the 7 University of California system, and they found that 8 even if you eliminated the SAT and you just used 9 grades, you'd still have a fairly similar problem. 10 MS. MASSIE: Judge, if we could just 11 take a brief break. I mean we're just about done. 12 If I could have a huddle with co-counsel. 13 THE COURT: Take your time. 14 (Discussion off the record.) 15 MS. MASSIE: Thanks for the time, 16 Judge. 17 BY MS. MASSIE: 18 Q. Professor Orfield, is part of the opinion you're 19 expressing that, so long as a university admissions 20 system whether it's law school or undergraduate or 21 whatever it is, is using some kind of academic 22 criteria which could be standardized test scores 23 alone, grades alone, the two in combination, some 24 other set of academic criteria that I can't even 25 particularly think of right now, that in order to GRUTTER -vs- BOLLINGER, ET AL 161 1 maintain any level of integration in diversity, 2 affirmative action will be necessary? 3 A. I think so long as the society has such inequalities 4 in the school are so unequal and preparation is so 5 unequal, any kind of just simple ranking on the 6 basis of academic preparation will tend to 7 perpetuate that segregation through the colleges and 8 professional schools. 9 And that you really have to consider 10 other criteria and you have to consider race as part 11 of that to get a reasonable representation, a 12 reasonable integration of those institutions. 13 Q. In the aggregate differences by race in those 14 criteria suggest to you the operation of a double 15 standard favoring minorities? 16 A. No, absolutely not. I think that these criteria in 17 this outcome represents an unequal set of 18 opportunities in this society. Both the present and 19 the historic--the results of the historic 20 discrimination within families and communities. 21 And these are measures of what kinds 22 of resources and opportunities you have, and they're 23 not measures of whether you're personally deserving 24 and dedicated and capable of contributing to a 25 profession. GRUTTER -vs- BOLLINGER, ET AL 162 1 Q. And if the law school were to continue to weigh the 2 LSAT at all in law school admissions, what these 3 graphs tell us is that it would have to essentially 4 open up the field entirely and, in fact, not playing 5 at all in order to have any reasonable number of 6 minority applicants in proportion to the number of 7 white applicants it was considering, is that right? 8 A. Yes, I think that it would be difficult to use this 9 as the criterion of any real importance in the 10 absence of affirmative action, without having a very 11 segregated outcome. 12 Q. And the same is true for GPA? 13 A. They're very strong. The GPA and these scores are 14 going to be very strongly related, yes. 15 Q. Have you heard the term cascading? 16 THE COURT: Can we go back for one 17 second? 18 MS. MASSIE: Absolutely. 19 THE COURT: You talked about the 20 necessity for affirmative action in order to have 21 any relief. 22 In terms of just your own expertise 23 in the area, does there come a time do you think in 24 our society the way, at least, you see it and the 25 projections that you have made and so forth, that GRUTTER -vs- BOLLINGER, ET AL 163 1 there it would come in a more natural way without 2 affirmative action. 3 Is there a time projection or a 4 percentage projection that would accomplish that 5 goal? 6 A. Yes. I think this is a goal that all of us would be 7 working for, and I think, you know, if you look at 8 the situation of what's happened to Asian students, 9 for example, who obviously were in a situation where 10 there was a tremendously intense history of 11 discrimination in California for a long time. And 12 by the country with Asians excluding acts and 13 everything else. 14 They are not segregated now, they're 15 in good high schools, they're not residentially 16 segregated to a significant degree, they're doing 17 very well. They're getting into very fine 18 preparation. 19 There's no need to consider 20 affirmative action for most of the Asian population. 21 Perhaps for some refugee populations. I think 22 that's a success. You get your success and you end 23 the policy. 24 For women, women were 25 underrepresented in most professional schools until GRUTTER -vs- BOLLINGER, ET AL 164 1 very recently, there desperately needed to be an 2 affirmative action. 3 In many of its achievements purpose, 4 there's full access, they are well integrated, you 5 don't have to worry about it too much anymore. And 6 that's good. 7 We don't show that kind of evidence 8 for African Americans or Latinos or Native Americans 9 yet. And there's kind of disturbing evidence on 10 many dimensions, in the 1990s we are going backwards 11 on these issues. And if you're going backwards, you 12 never get to the necessary goal. 13 Our schools are becoming more 14 segregated, our test scores gaps are growing between 15 blacks and whites in elementary and secondary 16 schools. They're growing on some of the college 17 admissions tests. 18 We're going in the wrong direction 19 and it does not project out to a solution. So, I 20 think we have to refocus on getting those lines to 21 convert again. 22 We made a lot of progress on the 23 academic achievement gap between late 1960s and the 24 early to middle 1980s, and now we're not making that 25 progress. GRUTTER -vs- BOLLINGER, ET AL 165 1 THE COURT: Where did we make those 2 though? 3 A. We made it especially in the south, especially for 4 black students. Half of the gap between blacks and 5 whites was eliminated between the late 1960s and the 6 early 1980s. And actually it's been really coherent 7 for the last few years. 8 THE COURT: Okay. 9 BY MS. MASSIE: 10 Q. Does the regrowth of that gap arise out of the 11 abandonment of desegregation efforts as you were 12 describing earlier? 13 A. Well, I don't think a direct link has been made, 14 although there is evidence that segregation produces 15 an increased academic achievement. But my personal 16 belief is that that is part of the cause, and that 17 there are other counter productive policies that 18 have been adopted. 19 Q. Why is it that in your view, that Asian Americans 20 have reached a point through the use of government 21 interventions and policies, at which affirmative 22 action is not necessary for them in higher 23 education, whereas Black Americans and Latinos have 24 not? 25 A. Well, Asian Americans were excluded from the country GRUTTER -vs- BOLLINGER, ET AL 166 1 between the turn of the century and 1965 by federal 2 policy. That meant that there was no possibility of 3 creating big concentrations of low income Asians in 4 the United States during that period. Those that 5 were here tended to dissimulated during that period. 6 They did not, except in very few 7 instances, develop into segregated pockets. The 8 racial attitudes improved tremendously after World 9 War II towards Asians. 10 When we permitted renewal of 11 immigration from Asia in 1965 from the immigration 12 law reform, we set conditions which meant that most 13 Asian immigrants will be received after that period 14 except for the Vietnam era refugees were extremely 15 gifted and well prepared, well educated, often with 16 resources and so forth. 17 So, it was a very elite immigration, 18 maybe the most elite immigration in the history of 19 the United States. Typically when they arrived they 20 had a college degree, for example. 21 People who arrive in a high tech 22 society with college degrees and don't get 23 segregated and get connected with good high schools, 24 do fine in this society. And they are doing very, 25 very well, indeed. GRUTTER -vs- BOLLINGER, ET AL 167 1 Now, the Asian populations that came 2 in after the end of the Vietnam War, the Vietnamese 3 refugees, Cambodians, Laotians are doing terribly. 4 They are getting isolated, they are locating in high 5 poverty areas, they're not making it, they are more 6 welfare dependent than blacks or Mexican Americans. 7 And they have very, very serious social problems. 8 So, I don't think it says anything 9 about deviation, I think it's what your human 10 capital is and where you get connected to the 11 educational system. 12 You don't see any census track in 13 California that doesn't have Asian residents. The 14 average Asians are homeowner at extremely high 15 levels, I'm sorry, higher than white incomes on an 16 average. And so is their family education. 17 So, it's a combination of a lack of 18 isolation, very few poor people came from Asia 19 except in the refugee population. And a very 20 selective immigration, and a decline in poverty and 21 segregation. All of those things help tremendously 22 in this population. 23 Q. So, there are different social conditions faced by 24 Asians of different national origins and different, 25 let's say, immigration histories? GRUTTER -vs- BOLLINGER, ET AL 168 1 A. Yes, absolutely. 2 Q. And aggregating Asians just for the one question and 3 in no way disputing the existence of severe forms of 4 racial discrimination against Asians. 5 Asian specific Americans have 6 generally faced very different social conditions 7 than black people in the United States? 8 A. That's correct. And in recent history--they were 9 terrible a few generations ago. But in recent 10 history it has been much better. 11 Q. And the Latino people in the United States? 12 A. Yes. 13 Q. Have you heard of the term cascading with reference 14 to Proposition 209 in California? 15 A. Yes. 16 Q. What does that mean? 17 A. It means going down from more selective colleges to 18 least selective colleges within the system like the 19 University of California system. 20 And it means that minority students 21 being pushed from Berkley and UCLA down to Riverside 22 and other less selective campuses. 23 Q. And did that phenomenon, in fact, occur? 24 A. Yes. 25 Q. Has it been maintained? GRUTTER -vs- BOLLINGER, ET AL 169 1 A. Well, Riverside which is the least selective of the 2 campuses has had a substantial increase, I believe, 3 in minority students during this period. The 4 important thing about this is basically the--the 5 higher universities are the dominant institutions 6 that train the leaders of the states. University of 7 Illinois, University of Michigan, University of 8 Minnesota, University of California Berkley. UCLA 9 to a considerable extent. 10 Those are the places that train the 11 leaders. So, cascading the minorities who are 12 really becoming the dominant population groups in 13 California, out of which are the trained 14 institutions, which is a huge tragedy of this story. 15 Q. And its created not in absolute terms, but in terms 16 relative to the pre-Proposition 209 era, a two track 17 system within the University of California? 18 A. That's right. 19 Q. In which there are better campuses which are more 20 white and more Asian, and campuses where the 21 resources are less well developed which are more 22 black and more Latino, is that right? 23 A. That's right. 24 Q. So, what the word cascading means really is that two 25 track separate unequal system within the UC, is that GRUTTER -vs- BOLLINGER, ET AL 170 1 right? 2 A. Well, cascade is water flowing down a hill 3 basically, over a series of bumps. And basically 4 the students who have the least choices ending up in 5 places that they don't want to be, which are less 6 connected to opportunities in their state. 7 Q. I'd like to sum up in a second, but before I do that 8 I want to move the demonstrative exhibits into 9 evidence. 10 MS. MASSIE: So we're talking 11 Proposed 195 through Proposed 200. 12 THE COURT: Other than the objections 13 that you've made just before, are there any other 14 objections? 15 MR. PURDY: No. 16 THE COURT: The court will receive 17 subject to those objections. 18 MS. MASSIE: Thank you, Judge. 19 BY MS. MASSIE: 20 Q. Can you summarize, Professor, first, the role of 21 race and ethnicity in K through 12 educational 22 opportunity today in the United States? 23 A. That sounds like a good comprehensive exam question. 24 I would just say that race matters and it matters 25 deeply, and it matters even increasingly in terms of GRUTTER -vs- BOLLINGER, ET AL 171 1 the opportunities you get. 2 Students are isolated, they are 3 isolated not just by race, but also by almost every 4 other measure that you can look at that would effect 5 their educational opportunity. 6 And they are discontinued from what 7 they need in terms of information, in terms of 8 channels of movement, in terms of mentors, in terms 9 of many things that affect how students lives 10 develop because of the segregation system. 11 And many white students are growing 12 up in isolation of knowledge of the society that's 13 emerging. This is a society that's going to be half 14 non-white in a lifetime, so most of the people are 15 in school now. 16 Many of those white students are 17 being denied the opportunity to be prepared for that 18 society in any meaningful way, by the isolation that 19 they experience, which is also very high. 20 So, there's huge consequences not 21 just for what students learn, but also for what kind 22 of ability we will have to operate that interracial 23 society from this system of educational training. 24 Q. And tell us how those questions are similar or 25 different for higher education as well? GRUTTER -vs- BOLLINGER, ET AL 172 1 A. Well, basically we are in a society where higher 2 education in this last generation has become less of 3 an option and more of a necessity. All of the 4 increased wealth of our society has gone to people 5 with higher education since the 1970s. And people 6 without higher education have gotten none of it. 7 All of the good possible future jobs 8 that can support families and communities are going 9 to require post secondary education. 10 Higher education in places that are 11 abandoning efforts to achieve any kind of 12 interracial schooling, is the only place that people 13 are going to have this kind of experience since we 14 don't have mandatory military service anymore. 15 It provides that, higher education 16 provides both the opportunities and the leadership 17 for our society, and it really is one of our 18 formative shaping institutions. 19 MS. MASSIE: Actually, Judge, before 20 I ask my next summarizing question, I am informed 21 that I spaced out several exhibits. I should also 22 be trying to admit 118, which is the exhibit on 23 which demonstrative No. 198 is based, I think. 24 167 is the extra report. 131, 32 and 25 33. 131 through 133 are figures from California GRUTTER -vs- BOLLINGER, ET AL 173 1 that very much form the basis for Dr. Orfield's 2 opinions and discussion. I apologize, I should have 3 done it all at the same time. 4 THE COURT: Received over the 5 objection. 6 BY MS. MASSIE: 7 Q. Why is affirmative action necessary in higher 8 education, in your view? 9 A. Well, I think it's necessary because we have a very 10 unequal preparation system in this society, and we 11 desperately need to have generally interracial, 12 integrated institutions of higher education, if 13 we're going to have our public institutions serve 14 the entire society and create citizens and leaders 15 for the society who can make the kind of profoundly 16 interracial society where it will become a function 17 effectively. And each of the professions work 18 effectively. 19 Q. And what happens in the real life experiments that 20 have occurred in this country where you've 21 eliminated affirmative action? 22 A. When you eliminate affirmative action you go back 23 towards segregation and you reduce the level of 24 integration in some of your key institutions to a 25 level where it's too small to work, it's too small, GRUTTER -vs- BOLLINGER, ET AL 174 1 more example, to have meaningful interracial contact 2 with the white students. 3 And denies them the opportunity to 4 learn from that kind of contact, and it does not 5 create the professional and civic leaders who really 6 know how to work together and learn how to do that 7 in their educational process. 8 Q. And through efforts like desegregation both of K 9 through 12 education and also higher education 10 through deseg and affirmative action, have we made 11 significant and meaningful progress? 12 A. We are a very different society than we were before 13 the Civil Rights era. We were a society that had 14 total apartheid in 17 states a half century ago. 15 And those states remain much more effectively 16 interracial and with more interracial contact then 17 any place outside the south now. Particularly 18 places like where we are now. 19 So we've done some very powerful 20 transformative things in parts of the country. We 21 have created much more interracial contact, and we 22 have created--we had no significant minority 23 professional class in the United States when this 24 whole effort started. 25 We have minority leaders in every GRUTTER -vs- BOLLINGER, ET AL 175 1 profession now, and we have people who have shown 2 that there are no absolute barriers in terms of 3 capacity or will. 4 We have millions of children who have 5 grown up in other states in interracial schools who 6 have had very positive experiences. We have learned 7 a lot about what you can do, and we have done a lot 8 of things that we thought to be impossible then. 9 But we are going in the opposite direction now. 10 Q. By the way, is that expansion of opportunity for 11 black, Latino, Native American and other minority 12 people, has it also carried with it the expansion of 13 opportunity for poor and working class white people 14 in higher education specifically? 15 A. Yes. We really didn't have any financial aide for 16 college until the 1960s. And the expansion that 17 made a college generally accessible to minority 18 students, in many ways helped working class white 19 students go to college as well, and still does. 20 Q. And finally, Professor Orfield, why in your view 21 have Berkley's law school, Boalt Hall's efforts to 22 compensate for Proposition 209 through out reach and 23 recruitment, and UCLA's effort to compensate for it 24 through a kind of class based affirmative action 25 approach, in addition to all other things they tried GRUTTER -vs- BOLLINGER, ET AL 176 1 to do, focusing on their efforts to overcome the 2 resegregation of there schools that was imposed on 3 them by Prop 209, why have those efforts failed, in 4 your opinion? 5 A. Well, I think because there's a pervasive in 6 inequality of preparation for education in 7 California as I may have mentioned the ones we've 8 talked about. 9 And on top of that, there's a lack of 10 tradition, there's a lack of contact, there's many 11 reasons why many students don't think about these 12 careers. 13 On top of that, there is an absolute 14 inequality in the level of preparation measured 15 on--anyway you measure it, it's serious. And if you 16 do not consider race, if you do not consider making 17 up for the consequences of those inequalities, they 18 will be perpetuated. 19 There will be some extraordinary 20 students who can make it in any circumstances, but 21 it will not be enough to really begin to change the 22 racial characters of those institutions and their 23 creators. 24 You kind of eliminate institutions in 25 the kind of distribution of opportunity which would GRUTTER -vs- BOLLINGER, ET AL 177 1 then allow successive generations to require less 2 and less affirmative action. 3 Q. And when you say inequality, in that answer you're 4 speaking specifically of racial inequality? 5 A. Yes. 6 MS. MASSIE: Thank you. 7 THE COURT: Mr. Payton. You want a 8 break. 9 MR. PAYTON: Yes. 10 THE COURT: Sure. We'll take 15 11 minutes. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BENCH TRIAL - VOLUME 6 TUESDAY, JANUARY 23RD, 2001 178 1 (Back on the record at 3:19 p.m.) 2 THE COURT: You have a couple more? 3 MS. MASSIE: Yeah, I do have a couple more, thanks. 4 THE COURT: Yes. 5 BY MS. MASSIE: 6 Q Professor Orfield, when Proposition 209 was 7 implemented -- strike that. 8 The first year in which it applied to undergraduate 9 admissions was what, if you know? 10 A Well, it took place in 1996. I believe it really took 11 hold in 1997. 12 Q And what that means, if I'm counting correctly, is that 13 we haven't even seen law school admissions in California based 14 on post Prop 209 undergraduate college careers? 15 A That's correct. 16 Q So there's a second wave effect that hasn't even yet been 17 expressed? 18 A Yes. You have a diminished pool of college graduates 19 coming out within the states, and it really has a national 20 effect already. For example, medical schools get most of their 21 Latino students from California and Texas, both of which don't 22 have affirmative action anymore. Those states have over half 23 of the Latino students in the country. So we're going to see a 24 growing impact if we can't turn around these results on 25 undergraduate admissions. BENCH TRIAL - VOLUME 6 TUESDAY, JANUARY 23RD, 2001 179 1 Q And say it again to make sure we were clear, since I'm 2 informed that we were not, what have the people at UCLA and 3 Boalt Hall tried to do? 4 A Well, what they have tried at UCLA, as I understand it 5 from Alan Haynes' dissertation, is they have tried all manner 6 of different ways to measure economic disadvantage that don't 7 deal with race and they have had a tremendous failure, in 8 particular when reaching minority students. 9 In UCLA they have tried a more common alternative, 10 which is to go to a more massive outreach and interview and 11 full file review and so forth. They have done a lot of that 12 at Texas as well, and that also has fallen short at UCLA, but 13 the basic story is that there's a lot of people trying to 14 figure out some alternative and trying out all kinds of things 15 that we can think of and they just don't work as well creating 16 diversity as having affirmative action as part of the arsenal 17 in the past. 18 Q In fact, the numbers have fallen tremendously? 19 A Yes. 20 Q Despite those efforts? 21 A Yes. 22 Q And now, as I understand it, outreach looks to be illegal 23 as well? 24 A In California. 25 MS. MASSIE: Thanks. That's all I have. Paul Orfield - Cross TUESDAY, JANUARY 23RD, 2001 180 1 - - - 2 CROSS-EXAMINATION 3 BY MR. PAYTON: 4 Q Good afternoon, Professor Orfield. 5 A Good afternoon. 6 Q Just as a pre matter, we actually have meet, we know each 7 other? 8 A Yes, that's correct. 9 Q And you talked about the Civil Rights Project. I have 10 come to a number of those events -- 11 A Yes. 12 Q -- and appeared at a number of those events. 13 I want to focus on the educational significance of 14 some of the things you have talked about. You used an exhibit 15 that showed three measures of segregation for various states 16 in the United States. Do you remember that? 17 A That's correct. 18 Q And I don't need to put it back up, but it showed some 19 extreme segregation in some states, including in Michigan? 20 A Yes. 21 Q And we heard Erika testify earlier this morning about her 22 own personal experience where there were virtually no White 23 people in her life K through 12? 24 A Yes. 25 Q So here is my first question. Is there some Paul Orfield - Cross TUESDAY, JANUARY 23RD, 2001 181 1 self-awareness in the country about how segregated we remain? 2 A No, there really isn't. People think that we have solved 3 a lot of these issues, and we celebrate them every Martin 4 Luther King Day as if they were issues in the past. 5 Q Okay. And in spite of the fact that people must know 6 where they live, and if they live in all-White areas or in 7 all-Black areas or in all-Hispanic areas, in spite of that they 8 still don't have the awareness of how our society remains White 9 divided like that? 10 A People tend to believe that we're much further along on 11 these issues than we are and that there's much less 12 discrimination than current research actually shows continues 13 to exist, and if you ask, people will say there is equal 14 access, that people do get equal preparation. Many polls show 15 a fairly large majority of Whites believing that to be true 16 now. 17 Q We today, this country today has very substantial numbers 18 of a variety of racial groups and ethnic groups; isn't that 19 correct? 20 A That's correct. We're the most diverse we've ever been 21 and we're getting much more diverse every year. 22 Q Okay. And given how residential segregation still 23 operates and K through 12 education is still segregated, can 24 you give us your view on what different groups know about other 25 groups? What do White people know about African Americans, Paul Orfield - Cross TUESDAY, JANUARY 23RD, 2001 182 1 what do African Americans know about White people, Hispanics, 2 Asian Americans? What do we know? 3 A There's really a lot of deep ignorance about other groups 4 in the society on the part of each group in the population. 5 The National Council of Christians and Jews did a survey a few 6 years ago that showed that all groups maintain racial 7 stereotypes about all of the other groups and have disturbingly 8 little communication with any of them. Friendship patterns are 9 often weak. People have fears of going into particular parts 10 of cities where they will not be in the racial majority. 11 People have tremendous discomfort in settings of other racial 12 groups, don't understand what's going on, feel excluded, see 13 prejudice where prejudice doesn't even exist, where they don't 14 understand what's actually happening. There's lots of costs to 15 our public life that come out of this profound separation and 16 ignorance of each other. 17 Q If people live in a community that is all their own 18 racial group or substantially their own racial group and 19 therefore don't have neighbors or friends or classmates of 20 other races, what's the source of how they know anything about 21 any other group? 22 A Well, they get it from informal communication in their 23 families, from mass media, from other sources, and they don't 24 really have enough understanding of the variation within -- I 25 mean each of, each of our great racial and ethnic groups has Paul Orfield - Cross TUESDAY, JANUARY 23RD, 2001 183 1 such infinite variety within it that people need to experience 2 not just a slight contact but a significant contact with a 3 variety of people from another racial ethnic groups to have any 4 understanding of what the society is actually like. 5 Q Okay. You were asked about how important it is that our 6 future leaders or that our best institutions be engines for 7 training our future leaders and that it really matters that a 8 cross-section of our society be in those premiere institutions. 9 I want to ask you a slightly different question, which is for 10 the sake of trying to deal with the ignorance that exists and 11 the stereotypes and misinformation that exists out there, could 12 you comment on the educational value, just the educational 13 value of having meaningful numbers of Black students, Hispanic 14 students, Native American students in institutions like 15 Michigan, Boalt Hall and UCLA? 16 MR. PURDY: Excuse me, Your Honor, obviously based 17 on the question I have to at least renew our objection. 18 That's asking the value of diversity. 19 THE COURT: Very well. I don't think we're going to 20 take much time on that. 21 You may answer. 22 THE WITNESS: Well, our survey clearly shows, for 23 example, for legal education that students who are in more 24 racially diverse settings see their perspectives change, 25 actually change their minds on important issues, redefine the Paul Orfield - Cross TUESDAY, JANUARY 23RD, 2001 184 1 way they think about their careers and their clients. It has 2 very deep effects on all racial groups, according to what the 3 students at these institutions told us. 4 MR. PAYTON: That's all. Thank you very much. 5 THE COURT: Plaintiffs may question. 6 MR. PURDY: Thank you, Your Honor. 7 - - - 8 CROSS-EXAMINATION 9 BY MR. PURDY: 10 Q Good afternoon, Professor Orfield. 11 A Good afternoon. 12 Q Let me follow up on something. I'm going to probably try 13 and go backwards because that'll be the easiest way to flip 14 through the notes. 15 A I think that's what you're trying to do in general. 16 MR. PURDY: Well, I asked for that one, didn't I, 17 Your Honor? 18 THE COURT: You know, I always say the attorney only 19 represents clients. You get that in the criminal arena all 20 the time, especially with victims when they are being 21 cross-examined by defense counsel. They tend to blame it on 22 the defense counsel. But go ahead. 23 BY MR. PURDY: 24 Q You were talking about the importance of the 25 communications that we have with one another, of learning about Paul Orfield - Cross TUESDAY, JANUARY 23RD, 2001 185 1 one another, and the deep ignorance that I think you 2 characterized that each group has with regard to other groups, 3 and that's true for everyone, correct? 4 A Yes. 5 Q Earlier today you made an interesting comment, I wrote it 6 down in my notes and I won't flip back to it just yet, but you 7 talked about because we no longer have mandatory military, you 8 know, we have less, I assume what you were talking about, we 9 have less chance to interact with one other across racial 10 lines? 11 A Well, we have two great institutions that really cross -- 12 are supposed to cross all the lines in our society, one of them 13 is public schools, common schools, and the other was universal 14 military service for our young men. Those were the two things 15 we have. Nothing else really does that. 16 Q You know, I'm just curious, and let me just ask you this 17 question. 18 A Not that I'm advocating a mandatory draft. 19 Q Well, actually you foreshadowed my question. If, if it 20 is so important to you that we do learn, and let's all agree 21 that it is important that we all learn how to deal with 22 one another without the issue of race creating a problem, would 23 you be in favor of schools, and let's say law schools, 24 requiring that applicants demonstrate experience in a 25 demonstrably diverse environment such as the military before Paul Orfield - Cross TUESDAY, JANUARY 23RD, 2001 186 1 they even apply? 2 A My belief is that schools, our institutions of higher 3 education are, generally speaking, very successful institutions 4 and some of the most successful in the world and that we should 5 not try to proscribe externally how they choose their students 6 and faculty except when it's absolutely essential for a public 7 purpose, and I think that since the colleges and universities 8 are trying to develop and have developed reasonable policies 9 for pursuing this issue we shouldn't try to impose on those as 10 long as they are working reasonably well. So no, I don't -- I 11 think that it's one thing that could be considered by 12 admissions committees, and I have actually heard this 13 considered in admissions committees I have served on, does this 14 student have any experience in a diverse environment, are they 15 going to be able to add that understanding to our class. It's 16 one of the many legitimate things that can be considered. 17 Q Well, and I just want to follow up on that point. If it 18 is as important, in other words, let's assume that a, that a 19 law school, any law school says that it is -- this is a 20 compelling interest to us, it's more important than all of the 21 academic requirements that we may impose, it's more important 22 than the essay that may be written, it's more important than a 23 letter of recommendation may be, indeed the most important 24 thing to us is that we have this class of people who bring to 25 us the ability to work with one another and amongst one another Paul Orfield - Cross TUESDAY, JANUARY 23RD, 2001 187 1 across racial lines. Why wouldn't that be an outstanding 2 requirement to impose in addition to all of the academic 3 qualifications, that each applicant demonstrate that they have 4 participated in an interracial, successfully participated in an 5 interracial environment such as the military? 6 A Well, it would eliminate women, for one thing. Another 7 thing is that it would eliminate all of the people who were 8 involuntarily segregated. 9 THE COURT: Why would it eliminate women? 10 THE WITNESS: Because they are not in the military 11 in large numbers, and they have certainly never had mandatory 12 service. 13 BY MR. PURDY: 14 Q There is nothing that prevents a woman from enlisting? 15 A Well, in effect. I mean I think this is a very 16 hypothetical example. 17 And the other thing is it would eliminate all of the 18 people who are forced to be segregated. Most Blacks and 19 Latinos don't want to be segregated. They are segregated 20 because they don't have any alternatives, and to punish them 21 for not having an integrated experience would be to add insult 22 to injury. 23 Q Maybe I misunderstood you. It seemed to me that some of 24 your testimony today suggested that, that there were Whites 25 who, in fact a great many Whites, who I believe according to Paul Orfield - Cross TUESDAY, JANUARY 23RD, 2001 188 1 you lack any meaningful interracial experience. 2 A Absolutely. 3 Q We were talking earlier about the effects of Proposition 4 209 in California, and let me ask you, if you could, do you 5 know today, and let's take the flagship university -- in fact 6 they have two flagship universities in the University of 7 California system, do they not? 8 A De facto, I think that's right. 9 Q Okay. And we're talking about UC Berkeley and UCLA, 10 right? 11 A That's correct. 12 Q All right. At UC Berkeley today do you know what the 13 undergraduate breakdown is by race? 14 A I do have those tables, but I don't believe I brought 15 them with me today. 16 Q Let's see if we can agree roughly on percentages. What's 17 the largest single group, ethnic group on the campus of UC 18 Berkeley today after Prop 209? 19 A I'm trying to remember whether I have, I have seen some 20 statistics that suggested it was Asians, but I don't really 21 remember the numbers right now, I see so many tables. 22 Q How about at UCLA, same answer? 23 A Same answer. I really don't like to answer statistical 24 questions without reviewing the statistics, and I'd be happy to 25 look at the tables. Paul Orfield - Cross TUESDAY, JANUARY 23RD, 2001 189 1 Q Well, no, you were talking about the effects on -- 2 A We were talking about law school admissions. 3 Q I apologize. I thought that you were also addressing 4 questions about the undergraduate. You're not testifying about 5 the effect of Proposition 209 -- well, strike that, you did 6 testify -- 7 A The undergraduate admissions, I think I gave statistics 8 for two years, for 1997 and '98, but that was -- and you're 9 asking about today, and I don't have the 2000 figures with me. 10 Q All right. But would it surprise you today -- let me 11 just give you these numbers, and you tell us. If you're 12 surprised, I won't hold you to them. Would it surprise you 13 today that at Berkeley the largest ethnic group at Berkley is 14 Asian Americans and they constitute in excess of 40 percent of 15 the student body? 16 A No, it would not surprise me at all. 17 Q All right. Would it surprise you that 30 percent 18 roughly, 30, 31 percent, would be White students? 19 A No. 20 Q And then the remainder would be Latinos and 21 African-Americans, Native Americans, and other ethnic groups? 22 A International students. 23 Q International students, correct. And then if we looked 24 at UCLA, would numbers similar to that surprise you today? 25 A No, no. Paul Orfield - Cross TUESDAY, JANUARY 23RD, 2001 190 1 Q And this is after the passage of Proposition 209? 2 A Right. 3 Q As a matter of fact, was the Asian enrollment on either 4 of those campuses at that level before Prop 209 was passed? 5 A The Asian enrollment has been rising steadily on those 6 campuses for a long time because most Asians in California came 7 after 1965 and their population growth has been exponential. 8 Q You don't believe Prop 209 had any impact on the Asian 9 enrollment? 10 A It had some, but the basic trends had been operating for 11 quite a long time. 12 Q Let's talk about Texas. Before Hopwood the undergraduate 13 enrollment at Texas which you were talking about -- 14 A Yes. 15 Q -- was approximately 4 percent African American, in that 16 range, correct? 17 A I would really like to look at the tables before I 18 testify to any particular numbers. 19 Q Sure. If you have them there, please do so. 20 A Okay. I have the first-time freshman table for Texas. 21 Let's see. 22 Q We're looking before Proposition -- I'm sorry, before the 23 Hopwood decision. 24 A The Hopwood decision? 25 Q Yes, sir. Paul Orfield - Cross TUESDAY, JANUARY 23RD, 2001 191 1 A Now, repeat your question, please. 2 Q What was the underrepresented minority enrollment by 3 percentage before Hopwood was decided in the undergraduate 4 campus at UT Austin? 5 A I'm sorry, this table is for all Texas universities. I 6 don't have the UT Austin table with me. 7 Q All right. I believe you did testify earlier that in 8 fact the undergraduate enrollment at Austin has rebounded to 9 pre-Hopwood levels; is that correct? 10 A Yes, that's correct. 11 Q All right. And that includes both African American 12 students and Hispanic students, correct? 13 A Yes, I believe that's correct. 14 Q All right. You also made mention of Texas A & M, and I 15 was a little confused because you said they have not rebounded 16 but then later in your testimony you mentioned that Texas A & M 17 had never had a high African American enrollment. 18 A That's correct, and it went down after. 19 Q Do you know what the African American enrollment before 20 Hopwood was at Texas A & M? 21 A I don't recall it. 22 Q Do you know how much of a drop, if any, there was since 23 Hopwood? 24 A I do not have the numbers with me, but we did commission 25 a study at the University of Texas -- Texas A & M University Paul Orfield - Cross TUESDAY, JANUARY 23RD, 2001 192 1 and there was a substantial drop, as reported by their 2 admissions office to us. 3 Q But you can't tell us -- 4 A I don't remember the exact numbers. 5 Q All right. Now, you also mentioned the University of 6 Texas -- 7 A We could certainly supply them for you. 8 Q You also mentioned the University of Texas at Dallas, and 9 I believe when you and I met earlier -- 10 A Yes. 11 Q -- I guess it was last fall -- 12 A Yes. 13 Q -- you mentioned the University of Texas at Tyler as 14 well? 15 A I don't remember that. 16 Q Do you know what the pre Hopwood numbers were at either 17 UT Dallas or UT Tyler? 18 A No. If I had the tables in front of me, I could answer 19 that. I don't memorize the statistics for every college and 20 university, and I'm not going to guess. 21 Q Do you know how they compare since Hopwood at UT Dallas 22 and UT Tyler? 23 A Same answer. 24 Q You don't know? 25 A No. I know that the UT Dallas went down. I remember Paul Orfield - Cross TUESDAY, JANUARY 23RD, 2001 193 1 that. I don't remember the UT Tyler statistics. 2 Q Judge Friedman asked you a couple of questions, and I 3 tried to write down -- I'm not sure I got answers, that I heard 4 the answers so I just want to go back over that, and I 5 apologize. I believe the question was, does there come a time 6 when it will come about that we will have the diversity that 7 you were talking about, the racial and ethnic diversity without 8 affirmative action? Will there be a time? Can you give us a 9 time? 10 A If you give me the policy, I'll give you the time. Under 11 the present policies it would never happen because we're going 12 backwards. 13 Q No, no. Let's just talk about the policy. Let's assume 14 that there is no change in policy at the University of 15 Michigan, for example. Can you tell us when in point of time 16 you believe that that policy of considering race will not have 17 to be used any longer? 18 A Well, it depends on what happens within the rest of 19 society. If we provide equal educational opportunities for 20 students in this state, if we end the patterns of serious 21 segregation, if we work on other conventions that produce these 22 unequal scores, we won't have to have affirmative action, and I 23 really would be very happy when that day comes. 24 Q Professor Orfield, I'm sure we all would, but the 25 question, the question to you is do you, sitting here -- and I Paul Orfield - Cross TUESDAY, JANUARY 23RD, 2001 194 1 mean obviously you are, you've done a number of studies. 2 You've told us about your expertise in the areas of educational 3 opportunities, and we have read that, we have listened. 4 Sitting here as an expert in that area today, can you tell us 5 when in point of time you would no longer see the necessity for 6 taking race into consideration in college admissions? 7 A What I would say is under the existing policies that 8 we're operating under in our public schools and other 9 educational institutions, no one could tell you that point if 10 they wanted to have reasonable integration. We are heading 11 towards even more unequal educational preparation. 12 Q And I appreciate what you said. You can't answer because 13 of the unequal educational preparation and opportunities that 14 exist throughout our society and throughout our educational 15 system, correct? 16 A In the most extreme form here in Michigan. 17 Q Right, and I believe you were talking about -- in fact, 18 Mrs. Dowdell quite eloquently today told us about her schooling 19 and the obstacles that she had to overcome. You recall that 20 testimony? 21 A Yes, I do. 22 Q And I gather that that is really your focus, it's the 23 preparation beginning K through 12, that's where the inequality 24 occurs that ultimately results in so few of the kids coming out 25 being able to qualify for let's say the University of Michigan Paul Orfield - Cross TUESDAY, JANUARY 23RD, 2001 195 1 Law School; is that not true? 2 A That's part of it. 3 Q Is that a big part of it? 4 A It's a substantial part, but in addition to that, there 5 is the effect of discrimination on their parents, there's the 6 effect of discrimination in housing, in jobs. There's many 7 forms of inequality that perpetuate this lack of preparation 8 and access. 9 Q Absolutely, and I did not mean to, by my question I 10 didn't mean to suggest that there weren't all of these other 11 impacts, the effects of the racial discrimination that you 12 talked about earlier today. There are a whole host of those 13 that impact these issues, are there not? 14 A Many of them caused by public agencies for a long period 15 of time and continuing now. 16 Q Sure. Is it for that reason in fact in an effort to 17 overcome the historic effects of discrimination as they still 18 exist, as you've told us about, is that the reason why you 19 support the use of race in college and law school admissions? 20 A I support it for that reason and for other reasons. I 21 think that White students need it very badly. I think that the 22 professions need it. I think the universities need to serve 23 all of the people who are taxpayers in their states if they are 24 going to be viable as institutions. I think there's many 25 reasons for supporting affirmative action. Part of it is for Paul Orfield - Cross TUESDAY, JANUARY 23RD, 2001 196 1 making up for a history of discrimination. Part of it is for 2 creating a decent society. 3 Q And wouldn't you agree that when the state is spending 4 its time and its resources to benefit its citizens that it 5 should do so without regard to a person's race or ethnic 6 background? 7 A If we were in a society where the race and ethnic 8 background didn't produce a tremendous inequality that was 9 reinforced by state-sponsored actions, that would be great. I 10 wish we would come to the day when we don't have to consider 11 these things. We have to consider them now or we'll just 12 perpetuate the segregation. 13 Q And it's precisely because of the inequalities due to 14 discrimination that you take that position? 15 A That's one of the reasons. 16 Q That's the principal reason, is it not? 17 A I think that there's a reason -- that all students need 18 to have this diversity, and if you can't achieve the diversity 19 because of lack of preparation, it's important to get it, not 20 just for minority students, it's important to get it for other 21 students, for the White students, for the Asian students, it's 22 important to get it for the professions, it's important to get 23 it for the public institutions to have a viable future 24 political constituency. There are many reasons why we should 25 support this. Paul Orfield - Cross TUESDAY, JANUARY 23RD, 2001 197 1 Q Professor Orfield, by your testimony today are you 2 suggesting or do you take the position that it is appropriate 3 to have a different standard for evaluating academic 4 qualifications of certain minorities as compared to Whites and 5 Asians? 6 A I think that when we're on admissions processes in good 7 universities with good admissions processes we don't say, we 8 don't consider a student as an academic this and a social that, 9 we consider the whole person and the whole class when we are 10 doing admissions processes. 11 Q I appreciate that. 12 A So we're considering dedication, we're considering 13 persistence, we're considering overcoming obstacles. We're 14 considering all of the things that might produce a great 15 lawyer, for example. 16 Q Sure. And you would agree, would you not, that there are 17 White students who show incredible persistence and perseverance 18 and courage in overcoming tremendous obstacles, whatever they 19 might be, in their background, correct? 20 A I agree that's true. Almost none of them confront the 21 same kind of thing that Erika described in her neighborhood. 22 Q Well, you're not suggesting that there aren't White 23 students that haven't had to confront equally serious 24 obstacles, are you? 25 A There's White students that have to confront lots of Paul Orfield - Cross TUESDAY, JANUARY 23RD, 2001 198 1 obstacles but hardly any grow up in a place where all of the 2 houses have been bulldozed because of discriminatory housing 3 practices, where the schools are totally inadequate, where 4 there is nobody of any other background, where there is nothing 5 comparable to what middle class kids get in our basically 6 suburban society. Not very many White kids confront that. We 7 find almost no White children in high-poverty schools in most 8 of our metro areas, for example. 9 Q Are you suggesting, Professor Orfield, that there aren't 10 White and Asian American students who don't face the same or 11 even indeed more difficult obstacles than Ms. Dowdell may have 12 testified to about today? 13 A Well, she testified about being Black in the 14 United States. There are no White students who are Black. 15 Black students really do confront things that are different and 16 that are unique. I have Black students, graduate students at 17 Harvard who are stopped by police in stores because they think 18 they are being shoplifted and they are doctoral students at 19 Harvard. It's only because of the color of their skin. You 20 know, there are things about American history that are pretty 21 fundamental in this dimension that you have to understand. 22 Q Professor Orfield -- 23 A Not to say there is not really deeply disadvantaged White 24 children. There are. They are tremendously disadvantaged. 25 Even the Asian children. Of course there are. But whether Paul Orfield - Cross TUESDAY, JANUARY 23RD, 2001 199 1 they as a class are disadvantaged by something that they are 2 born with, that they cannot escape, is a different question. 3 Q It's wrong, is it not, to stop someone who is walking 4 through your store simply because of the color of their skin? 5 A Absolutely. 6 Q It's wrong to stop someone who may be driving down the 7 street who may be violating no law simply because of the color 8 of their skin? 9 A Of course. 10 Q Do you assume that every law student, every 11 underrepresented minority law student at Michigan has been a 12 victim of racial profiling? 13 A Of course not. 14 Q Do you assume that every law student, underrepresented 15 minority law student at Michigan has been stopped in a store 16 simply because of the color of their skin? 17 A Of course not. But in every one of my classes where I 18 ask this there are several hands that go up. So that the 19 probability that they will be stopped because of the color of 20 their skin is hundreds of times greater. I mean I have never 21 had a White student who said they were stopped because of that. 22 Q So you're talking about the statistical probabilities 23 that have come out of some of the studies that we all are aware 24 of about racial profiling? 25 A Yes. What we are doing in admissions is all about Paul Orfield - Cross TUESDAY, JANUARY 23RD, 2001 200 1 statistical probabilities. That's what test scores are, 2 statistical probabilities. None of them are absolutely 3 predictive. They are hunches about students. 4 Q You earlier said that it's your opinion that no matter 5 what, in fact correct me if I'm wrong, Professor Orfield, 6 because I don't want to misstate this, but I believe you said 7 no matter what you do in terms of the LSAT and the GPA, whether 8 you eliminate it or deemphasize it, you still must use race in 9 order to enroll a racially diverse class. Is that a fair 10 characterization of what you earlier testified to? 11 A Well, I say if you rank people on the basis of LSAT and 12 GPA, however you do it, given the way those things are 13 distributed in our society as its structured now, you're going 14 to have a class that has very, very few disadvantaged minority 15 students in it. 16 Q You frequently used the term today racially -- well, 17 maybe you didn't frequently use it, but you did at least in the 18 answer that I wrote down. You had the term a racially diverse 19 class. How do you define a racially diverse class? 20 A Well, we went around this many times during our 21 deposition. 22 Q Yes, we did. 23 A I leave that to the faculty of the university thinking 24 about the society that it's serving. I don't try to define it 25 from the outside. I think that faculties are the best groups Paul Orfield - Cross TUESDAY, JANUARY 23RD, 2001 201 1 to do that, and we should respect them and respect their 2 First Amendment rights to do that. 3 Q I just want to be clear. We did go around about this, 4 around and around. If I were to ask you how you would define a 5 racially diverse class, could you give us a definition? 6 A If I were a member of the faculty at a university and you 7 asked me that question, I would think about it hard and define 8 what I thought was a meaningful answer in that community. I 9 would not try to give a universal or national answer for a 10 society that's as complex and as diverse as ours is. 11 In San Francisco we have 12 different racial and 12 ethnic groups backing us in our desegregation, for example. 13 Totally inappropriate for anything here in Michigan or 14 something in Boston. We have a variety of situations that 15 need to be considered in light of their evolving realities. 16 Q Do I understand from your answer then it would depend on 17 perhaps the more regional demographics; that would be one 18 factor? 19 A That's one factor that should be considered definitely. 20 Q So, for example, whatever the ethnic mix here in the 21 state of Michigan might be, then the University of Michigan 22 should pay attention to that in terms of discerning or 23 determining what might be an appropriate racially diverse 24 class? 25 A I think if you have professional schools training your Paul Orfield - Cross TUESDAY, JANUARY 23RD, 2001 202 1 legislators and your leaders that does not look anything like 2 the society that is paying for that school or being served by 3 it, it's something that the faculty should be very concerned 4 by. 5 Q Would you be in favor of eliminating the LSAT test from 6 consideration? 7 A No. 8 Q Why not? 9 A I think it gives some information. I'm a researcher. I 10 never give up any kind of information voluntarily. I think the 11 importance is using this appropriately and using it in a way 12 that makes sense and as one of the things that you consider in 13 admissions. 14 Q Would you be in favor of, because of the statistical -- 15 can we agree about something? I mean when you talk about the 16 historic inequity or the, yeah, the unequal preparation due to 17 discrimination, discrimination by the state and agencies and 18 society in general because of the unequal preparation for 19 certain groups as compared to the majority, would you be in 20 favor of deemphasizing the LSAT for those groups as compared to 21 the White students or Asian American students? 22 A Well, my general position on standardized tests, and we 23 do have this book coming out on standardized testing, is that 24 it provides information. The information it provides is 25 relatively modest, and it should be used in a modest fashion Paul Orfield - Cross TUESDAY, JANUARY 23RD, 2001 203 1 for everyone. It shouldn't be used as an absolute selector for 2 anyone, as the LS -- as the Law School Admissions Council 3 strongly recommends. 4 We should use it also to diagnose problems. So if 5 we have educational needs, we should define them and we should 6 solve them through the use of tests. We should never use it 7 to determine a person's absolute life chances. It's not 8 adequate, it was not designed to do that, the testing industry 9 does not support doing that, and I believe it's an unethical 10 way to use those tests. 11 Q I don't think that anybody in this courtroom has taken a 12 different position from that. My question to you is this. Do 13 you favor because of the unequal preparation that exists -- 14 A My answer -- 15 Q Excuse me. Let me just finish. 16 A Okay. 17 Q Because of the unequal educational preparation you've 18 testified about at length, would you be in favor of evaluating 19 the tests, LSAT tests, SAT, ACT tests differently for those 20 groups that have suffered this discrimination? 21 A No, I'm in favor of not relying heavily on these tests 22 for any group and for giving that information to the faculty 23 committees and the admissions committees that review the 24 student's entire file. That gives really the best information 25 that can be had about that student's promise and possibilities Paul Orfield - Cross TUESDAY, JANUARY 23RD, 2001 204 1 and not proscribing any statistical amount you use this 2 particular test. 3 Q Do you think the test ought to be -- if you're going to 4 use a factor, whatever it be, be it leadership, be it letters 5 of recommendation, be it outside activities, be it an LSAT 6 test, be it a grade point average, do you believe those should 7 be fairly applied to each applicant regardless of his or her 8 race? 9 A I think that if you actually serve on an admissions 10 committee and you actually talk about files of students and 11 review all of the material you have, you realize people are 12 trying to think of an entire person. They are not trying to 13 say let's look at this little bit and this little bit and get 14 15 percent for this and 10 percent for that. They are saying 15 is this a student who would add to our class, is this a student 16 who would add to our profession. I think that's the way we 17 ought to look at all of these things. I believe in looking at 18 every source of information we have about students. 19 Q Incidentally, do you take a position one way or the other 20 as to whether or not the LSAT is biased against any particular 21 ethnic group? 22 A I take no position on that. 23 Q You certainly don't take the possession that -- 24 A I'm not an expert on test bias. 25 Q You mentioned, you mentioned something, and I'm not sure Paul Orfield - Cross TUESDAY, JANUARY 23RD, 2001 205 1 whether this was in relation to Texas or California, Professor 2 Orfield, so maybe you can let me know. You talked about a drop 3 in applications that appeared to be almost half. Was that in 4 Texas or was that in -- and I believe it was law school 5 applications. Was that in Texas or California? 6 A That was a statewide change in applications to all of the 7 public law schools in Texas. 8 Q Okay. So, in other words -- and this was what year after 9 Hopwood? 10 A This was two years after Hopwood. 11 Q Two years after Hopwood. And I believe you expressed the 12 view that those dropped because people just lost hope. Was 13 that the term you used? 14 A Yes. I had many students from California who were in 15 graduate school at Harvard at the time who told me their 16 younger brothers and sisters were changing their plans. 17 I also was invited to the University of Texas at 18 Austin Law School for a session on testing, and a number of 19 young students, particularly Latino and African American 20 students, told me the same thing about their own family 21 members and friends in their communities. So I really do 22 believe, at least in the immediate aftermath of these 23 decisions, there's a belief that the door has been shut, and 24 universities try to overcome that. 25 Q In other words, students said because they are no longer Paul Orfield - Cross TUESDAY, JANUARY 23RD, 2001 206 1 going to consider my race I'm not going to make an application 2 to the school? 3 A Students took this as an indication the schools did not 4 want to have minority representation. They didn't take it 5 as -- they took it as the door being slammed in their face. 6 Q In other words, passing a law as in California -- 7 A Yes. 8 Q -- which says we are simply not going to consider race 9 when it comes to college admissions, for example, students in 10 your view interpreted that as slamming the door on their 11 opportunity to attend those schools? 12 A These were perceived as anti-Black and anti-Latino 13 measures by people who were intentionally polarizing the state 14 on these issues, and they were perceived quite dramatically as 15 efforts to limit opportunities. You can see Boalt data on 16 this. It's one reason there is no longer a Republican 17 administration in California. There was a tremendous anger 18 about these propositions and a belief that they were directed 19 in a hostile way against minority communities. 20 Q You talked about the efforts that Boalt and UCLA were 21 making after Prop 209, and I believe you were referring to the 22 law school? 23 A That's correct. 24 Q You were talking about the recruitment at Boalt and then 25 the effort to use socioeconomic disadvantage? Paul Orfield - Cross TUESDAY, JANUARY 23RD, 2001 207 1 A Yes. 2 Q And in fact socioeconomic disadvantage doesn't help 3 because many of the African American students that came in 4 weren't socioeconomically disadvantaged, correct? 5 A They weren't disadvantaged in terms of average income. 6 They were disadvantaged in lots of other ways that we described 7 earlier in my testimony. 8 Q But the disadvantage you talk about in your testimony is 9 educational preparation. That's what you were talking about. 10 A Well, there's also other disadvantages that we talked 11 about in middle class minority communities. 12 Q But in terms of using socioeconomic disadvantage as 13 one way to increase the diversity in the class, it just simply 14 didn't work because there's, what, too many poor White and 15 Asian students as well? 16 A Well, there's many people who fall in an economically 17 disadvantaged category who really have very good prospects in 18 this society but who are temporarily economically 19 disadvantaged. Recent immigrants from Asia with higher 20 education in their native country are primary members of that 21 class. So are recently divorced White suburban families, for 22 example, whose income goes way down but who have every promise 23 of making it and every advantage in their background. People 24 who are sick look poor in a given year even though that's not 25 their past or their future. There's many, many reasons why Paul Orfield - Cross TUESDAY, JANUARY 23RD, 2001 208 1 people can be in an economic category that does not indicate a 2 long-term disadvantage. So you get a lot of things that you 3 don't think about when you just go into poverty or income as a 4 category. 5 Q As a matter of fact, earlier today you used the phrase 6 temporarily poor? 7 A Yes. 8 Q And you indicated that there were a lot of Whites and 9 Asians who were temporarily poor but in fact, you know, they 10 may get in under a socioeconomically disadvantaged category but 11 then later they are going to climb out of that? 12 A Yes. 13 Q Isn't the same phenomenon true in the African American 14 community and the Latino community; there are temporarily poor 15 within those communities as well? 16 A Well, there's been a lot of research done here at the 17 University of Michigan on this exact issue, which shows that if 18 you look at the long-term persistent poverty Blacks and Latinos 19 are vastly more likely to be in that than Whites or Asians. 20 It's not true, what you say. It's not randomly distributed at 21 all. So if you look at poverty at any given cross-section, 22 there are lots of Whites and quite a few Asians in it, recent 23 immigrants particularly, but if you look at long-term 24 persistent poverty, it's very heavily weighted towards African 25 Americans, Latinos and Native Americans. Paul Orfield - Cross TUESDAY, JANUARY 23RD, 2001 209 1 Q I certainly don't want to argue with you, but isn't it 2 true that there are African American and Latino families who 3 are temporarily -- 4 A Oh, of course. All groups experience some mobility, but 5 it's very unequally distributed. 6 Q Now, another impact -- you talked about recruiting at 7 Berkeley. Do you know what view the students and faculty at 8 Berkeley took after Prop 209 in terms of trying to recruit 9 Black students to come there? 10 A Well, I just had a student who was one of those student 11 recruiters who just finished a paper for this semester so I've 12 read about this quite a lot. There were a number of student 13 recruitment groups that were set up to work at Berkeley. The 14 University did give them some funding to go out and do some 15 recruiting, although it's beginning to be cut back now and 16 it'll probably be illegal next year. I know there were some 17 students who initially took the position of telling students 18 they shouldn't come, but basically for some time now there's 19 been a pretty heavy outreach effort. 20 Q But you were aware of the groups of students who did 21 actively discourage Black applicants and Black admittees 22 from enrolling at Berkley? 23 A I think that was only the first year. We are now talking 24 about four years later. 25 Q Have you read the depositions of any of the other Paul Orfield - Cross TUESDAY, JANUARY 23RD, 2001 210 1 witnesses in the case, for example, a UCLA student, African 2 American female who just graduated? 3 A No, I have not. 4 Q All right. Would it surprise you that UCLA was using an 5 active outreach as well, trying to bring in students, attract 6 African American students from schools all around the country 7 and bring them to the campus for the purpose of trying to 8 encourage them to enroll? 9 A I don't know what their outreach was. 10 Q And would it be helpful in your view that when they bring 11 students in for those types of sessions that a current UCLA 12 student who is African American would stand up and tell them 13 that it was not a place that they would want to be? 14 A I don't think that would help a successful outreach, no. 15 Q Do you know if that in fact happened? 16 A I have no knowledge of that. 17 Q It certainly wouldn't be what the school would want to 18 have said about the school if they are trying to attract more 19 students, correct? 20 A It would be a dean's nightmare. 21 MR. PURDY: I apologize, Your Honor, but I -- 22 THE COURT: That's okay. 23 MR. PURDY: Unlike Mr. Payton, this isn't for 24 effect. I'm actually -- 25 MR. PAYTON: Then what's it for? Paul Orfield - Cross TUESDAY, JANUARY 23RD, 2001 211 1 THE COURT: We have a local attorney, when he needs 2 some time to think, he's got about six pens, really nice, nice 3 fountain pens up here, and we all need time to think, there's 4 nothing wrong with that, but it's funny, and that's the thing 5 the jury talks about, I mean he tries a lot of cases in here, 6 they always talk about all of his pens. He'll take one out 7 and then he'll start writing with that one, and then he needs 8 a little time so he'll cover it up, fool around with it and 9 put it back and then take another one out. They are really 10 beautiful pens. 11 MR. PURDY: I'll bring some more pens in tomorrow. 12 THE COURT: That's the thing the jury talks about 13 most. They hate that. They say why doesn't he just take a 14 couple of minutes and think instead of playing with those 15 pens. 16 Those of you who are in law school, I don't know how many 17 attorneys who have ever done it before, where they video you 18 arguing a case. I remember the first time they did that to 19 me, you know, I said oh, man, my mannerisms, you know, wait a 20 minute. It's probably the best way to learn. They should 21 really do that with judges, too, I guess. 22 BY MR. PURDY: 23 Q Professor Orfield, we have had admitted into the record 24 your report, and I'd like to ask you to turn to Exhibit 178. 25 Let me see. I can help you with that. Paul Orfield - Cross TUESDAY, JANUARY 23RD, 2001 212 1 THE COURT: 167? 2 MR. PURDY: 178, Your Honor. 3 THE WITNESS: I believe I have that one. 4 BY MR. PURDY: 5 Q These are, Exhibit 178, when we had met for your 6 deposition and you were telling us about the report that you 7 had prepared and the survey of the Michigan and Harvard law 8 students, you indicated that there was a list of actual 9 verbatim comments received from these students, correct? 10 A That's correct. 11 Q And that's what is shown in Exhibit 178, is it not? 12 A Yes, that's right. 13 (Plaintiff's Exhibit 178, Student Comments from 14 Professor Orfield's Report, identified.) 15 MR. PURDY: Your Honor, we would offer Exhibit 178. 16 THE COURT: I'm sure no one has any objection. 17 Proceed. 18 (Plaintiff's Exhibit 178 received into 19 evidence.) 20 BY MR. PURDY: 21 Q In terms of the diversity that the students at Harvard 22 and Michigan have found to be most, most meaningful to their 23 educational experience, do you recall reading numerous of the 24 hundreds of comments that are there where students indicated 25 that it was socioeconomic diversity, class diversity that Paul Orfield - Cross TUESDAY, JANUARY 23RD, 2001 213 1 mattered more than racial or ethnic diversity? 2 A Let me describe these comments, first of all. 3 Q Sure. 4 A These are comments that were -- we asked some open-ended 5 question at the end, I believe, of the survey and the students 6 could write in anything they wanted. Now, the reason we didn't 7 tabulate these comments in any way and just quoted a few as 8 illustrations in the course of the report was of course they 9 are not representative of anything. Probably students who have 10 stronger views one way or another might write something into 11 this survey, but it wouldn't be a representative sample in any 12 way of anything so you can't conclude anything from these 13 comments. We just used them to explain some of the results 14 that were presented, to give illustrations. But from looking 15 at the comments all you can conclude is that somebody said that 16 on the phone. You can't conclude how many students or whether 17 it was a prevailing view or anything of that sort. 18 Q Well, you did at least quote several of the comments in 19 your report, did you not? 20 A We quoted several, but I only used them to illustrate 21 possible explanations of data but not as data. 22 Q But you do recall, and I don't want to -- 23 A And I did mention this socioeconomic thing in the report, 24 also, as you probably recall. 25 Q Well, you obviously have reviewed these comments, have Paul Orfield - Cross TUESDAY, JANUARY 23RD, 2001 214 1 you not? 2 A I have. 3 Q And there are several -- 4 A Yes, there are a number of them. 5 Q A number of them where the students indicate -- and let 6 me just finish. 7 A Yes. 8 Q -- where the diversity that was most important to them 9 was not based on race or ethnicity but was based on 10 socioeconomic differences? 11 A Some of the students did say that. 12 Q And in fact -- 13 A And in fact I believe that socio and economic diversity 14 is important as well as racial diversity. 15 Q Let me ask you to turn to what is GL0029. It would be 16 the 29th page of that exhibit, please, sir. 17 A 29? 18 Q Yes, sir. 19 A Yes, okay. 20 Q Did you also -- and I'll just direct your attention 21 towards the bottom of the page. Do you recall that there were 22 several students that indicated that one of their complaints 23 was that all of the kids, both at Harvard and at Michigan, came 24 from privileged backgrounds whether they were Black or Hispanic 25 or White? Paul Orfield - Cross TUESDAY, JANUARY 23RD, 2001 215 1 A Yes. 2 Q And in fact if you look at the bottom of Page 12, because 3 these comments are very hard, it's towards the bottom, let me 4 see if I can help direct you. I'm sorry, at 29. At 29, I'm 5 sorry. 6 A Okay. 7 Q At the very, very bottom. 8 A Yes. 9 Q Do you see the reference that it says, "Minority students 10 at Harvard tend to be children of doctors, lawyers and 11 academics;" do you see that? 12 A Yes. 13 Q "In the diversity rationale it seems to make little sense 14 that we fail to target the policy of those with the most 15 diverse viewpoints;" do you see that? 16 A Yes. 17 Q And, again, let me ask you to turn to Page 31. Just at 18 the top, the very first comment from a student says, "I think 19 that other kinds of diversity, such as socioeconomic, 20 political, geographic are things that I think are more 21 important at some law schools than they give credit for. I 22 think that the racial diversity is good, but I don't think that 23 they have approached it from the right perspective. The 24 students at our school, Black, White and other colors, tend to 25 come from privileged backgrounds;" do you see that? Paul Orfield - Cross TUESDAY, JANUARY 23RD, 2001 216 1 A Yes. 2 Q And this wasn't uncommon; these were common comments that 3 were filtered throughout these comments you received? 4 A You know, as soon as I sent these to you, I knew you were 5 going to use them the wrong way because you can't generalize 6 from these kinds of things. That's why we didn't generalize 7 from any of them, and you have no way of knowing whether these 8 are representative comments. These are just whoever happened 9 to comment on whatever they happened to want to, and they are 10 not a sample of anything. They don't represent the student 11 bodies. There were several students who made this comment. It 12 doesn't say anything about how the students overall felt. 13 Certainly those comments exist, and that's all you can say from 14 these comments. 15 Q Incidentally -- well, strike that. 16 Professor Orfield, let me see if I can break down 17 just a couple of -- I think we've actually touched on this a 18 little bit, but is it your opinion that the use of race at 19 Michigan law school is justified in order to help correct some 20 of the housing problems that you testified about earlier 21 today? 22 A I think the housing problems are a symptom of a very 23 racially stratified metropolitan area and state and that that 24 racial stratification, inequality, segregation, so forth, is a 25 big problem for the entire state, and it's perfectly Paul Orfield - Cross TUESDAY, JANUARY 23RD, 2001 217 1 appropriate for the colleges and universities to take that into 2 account and to try to make possible that future generations 3 have less inequality and more ability to live together. 4 Q And I just want to be clear. It's these effects of -- 5 the discriminatory effects that occur in these communities, the 6 concentrated poverty that you mentioned, the housing 7 resegregation, the pattern of resegregation, the pattern of 8 resegregation in the schools, it's because of these effects of 9 discrimination that you believe it's appropriate to consider 10 race in the law school admission program? 11 A I think I've answered this question at least 12 times 12 already. I believe that's one of the reasons, and other 13 reasons are educational values, the responsibility of the 14 university to its taxpayers, its own building of a profession 15 that will be viable in the future. I think all of these are 16 important, legitimate considerations for institutions of higher 17 education. 18 Q You also this morning, I think it was fairly early in 19 your testimony, were telling us the anecdote about your 20 colleagues at Harvard -- 21 A Yes. 22 Q -- colleagues of color, and I don't know whether you said 23 they were African American or what, but whose kids in K through 24 12 -- 25 A Yes. Paul Orfield - Cross TUESDAY, JANUARY 23RD, 2001 218 1 Q -- presumably had been tracked by race into the wrong -- 2 A Yes. 3 Q -- classes. And you would agree, would you not, that 4 using race to track a person would be wrong? 5 A Yes. 6 Q There was the, the chart, Exhibit 197. I'll be happy to 7 give it to you because I believe you mentioned that there were 8 a percent of schools, in fact I think you said a substantial 9 percent of schools, that didn't fall within that chart? 10 A Yes. 11 Q What percent of schools wouldn't fall within that chart? 12 A Well, about half of the schools in the country are 13 overwhelmingly White, 0 to 10 percent Black and Latino and -- 14 about 10 percent are very segregated Black and Latino, and the 15 rest of the schools, probably around 40 percent, fall between 16 those two. Okay. 17 Q Okay. All right. 18 MR. PURDY: Your Honor, if I may have just a moment 19 to confer with colleagues, I may be done. 20 THE COURT: Sure. 21 BY MR. PURDY: 22 Q Incidentally, Professor Orfield, in terms of looking for 23 systems, admission systems that could be used to replace those 24 where race is consciously considered in the process, you have 25 looked at various alternatives, have you not? Paul Orfield - Cross TUESDAY, JANUARY 23RD, 2001 219 1 A Yes, I have. 2 Q And, incidentally, you made reference to the Texas system 3 and that they use a -- they have actually admitted applicants 4 with much lower test scores under that system? 5 A That's correct. 6 Q Isn't it true that Texas in fact doesn't require a test 7 score at all in order to be admitted under the 10 percent plan? 8 A They do not require a test score to be admitted, but they 9 do require that you -- well, they do require a test score to 10 graduate from high school and they require a test score to go 11 behind your first term at the university. 12 Q The test score that they require to graduate from high 13 school is a high school standard at Texas, it's not the ACT or 14 the SAT? 15 A That's correct. 16 Q All right. And they don't require an SAT or ACT in order 17 to qualify under the 10 percent plan, correct? 18 A That's correct. They have a test called the TASP. 19 Q And that's, again, that's the high school -- 20 A No, that's not a high school, it's a college test. 21 Q T-A-S-S is a college test? 22 A T-A-S-P. 23 Q I'm sorry. In order to graduate from high school, they 24 have to pass the T-A-S-P? 25 A No, they have to pass the TASS to graduate from Paul Orfield - Cross TUESDAY, JANUARY 23RD, 2001 220 1 high school, the TASP to stay in college beyond their first 2 term or so. 3 Q And in Florida the plan that has been proposed is a 4 20 percent plan? 5 A Yes. 6 Q Would that also permit students from Florida high schools 7 who graduate in the top 10 percent to be admitted into the 8 University of Florida system without the need for a 9 standardized test? 10 A Well, nobody really knows quite how it's going to work 11 yet because it doesn't take effect until next year, and we have 12 been interviewing people who tell us that there is tremendous 13 confusion about what it actually means so far. Two weeks from 14 now we probably can answer this question after we do some 15 interviews, but not right now. I don't think anybody can 16 answer it right now. 17 Q Fair enough. Have people, colleagues of yours at the 18 Harvard Civil Rights Project also looked into alternatives to 19 using race in college and university admissions? 20 A Certainly. 21 Q Is it Mindy Cornhaber [sp]? 22 A Yes. 23 Q She's looked into this, has she not? 24 A Yes. 25 Q And she's come up with several alternatives to relying Paul Orfield - Cross TUESDAY, JANUARY 23RD, 2001 221 1 upon tests and grades, correct? 2 A Yes. 3 Q Have you ever done any evaluation to determine whether 4 any of those policies might work in the law school context? 5 A Well, the only way social scientists can evaluate 6 something is to have it existing someplace where it can be 7 observed and measured, and since we don't have them, we can't 8 evaluate them as yet, but I'm in favor of a broad variety of 9 experiments with these issues. 10 Q So is it fair to say that you don't know whether or not 11 some of the alternatives, the race-neutral alternatives that 12 Ms. Cornhaber has evaluated would work if put into place in 13 Michigan? 14 A I don't think anybody who is a researcher could tell you 15 they knew the results of something that hadn't been tried yet. 16 All I can tell you is that, of all of the things that have 17 actually been tried, we haven't seen anything that would work 18 and that there would be no way to make a policy saying that 19 there is an alternative that would work without -- you know, 20 there is no evidence that there is an alternative that would 21 work out there as yet, and if you have to make a judgment now 22 on the basis of what is actually known, you would have to say 23 there isn't. Does that mean that nobody would ever possibly 24 discover anything that would work? Nobody could ever tell you 25 that. Paul Orfield - Cross TUESDAY, JANUARY 23RD, 2001 222 1 Q Have you recommended that any law school try any of the 2 policies that your colleague at the Harvard Civil Rights 3 Project has -- 4 A Well, she wasn't really writing about law school 5 admissions. She was writing about undergraduate admissions. 6 Q But my question is have you suggested that any law school 7 take a look at those? 8 A No law school has asked me. If they do, we'll, certainly 9 send Cindy out to talk them. 10 MR. PURDY: Your Honor, that's all I have. Thank 11 you. 12 THE COURT: Anything else? 13 MS. MASSIE: Just one second. 14 We have nothing further, Your Honor. 15 THE COURT: Thank you, Professor. I appreciate it 16 very much. 17 THE WITNESS: Thank you, thank you, and I appreciate 18 the loan. 19 THE COURT: My pleasure. 20 Okay. Your next witness. 21 MS. MASSIE: Judge, Mr. Purdy had thought that we 22 would not be able to call another witness today and so -- 23 THE COURT: It's up to you. If you have that 24 witness here, I can work late tonight if you guys want to work 25 late to accommodate that witness. Paul Orfield - Cross TUESDAY, JANUARY 23RD, 2001 223 1 MS. MASSIE: No, my understanding is she had left on 2 the basis that she would not be able to testify today. 3 THE COURT: That's fine. I thought she would be 4 here, and I didn't want her whole day to be goofed up again so 5 I thought we could get her on and stay late and get her done. 6 That's fine. I can't work late tomorrow, but I can work late 7 today. 8 That's fine. Okay. We'll convene until tomorrow at 9:00. 9 MR. PURDY: Your Honor, may I just ask a question, 10 do we have an understanding that we are done tomorrow for the 11 week? That's the question. 12 THE COURT: That was my understanding, that you all 13 agreed that we would be off Thursday and that we would 14 reconvene on the Tuesday the following, Tuesday the 6th, 15 whatever, I think it's the 6th. We will reconvene at 9:00 on 16 that morning and then go until we finish. The only caveat is 17 we would have to take the 14th off if we go that far. 18 Okay. Thank you. 19 (Proceedings adjourned at 4:25 p.m.) 20 - - - [...]