MAR 2001

MAR 2001

Grutter v. Bollinger: UM Law Schoolís Affirmative Action On Trial

[Editorís Note: While the University of Michigan Law School is mounting a courtroom defense of affirmative action, Erika Dowdell and other students have intervened in this historic trial, to defend their own rights rather than depending on the universityís own case. This excerpt from her January 23 testimony gives a moving glimpse of life in the Detroit schools and the startling transition from there to Ann Arbor. But it also foreshadows what became the strongest, most legally and sociologically comprehensive defense of affirmative action ever in the history of affirmative action litigation, and possibly the broadest, most comprehensive exposition of race, racism, and social inequality ever put forward in an American court. The flavor of the monthlong proceedings is captured in the February 16 Closing Arguments by the attorney for the intervening student defendants, Miranda Massie, which begin on p. 13 below.]


Erika Dowdell Outside Detroit Federal Court

Q. Have you lived your whole life in Detroit?

A. Yes.

Q. Can you describe for us your house?

A. I live on the west side of Detroit, my house is pink and it is very distinguishable. Three bedroom house, one bath. The paint is peeling off, itís very old. Itís been a very long time since the house has been painted.

I live on a block where there are only two houses standing, because the rest of the houses were abandoned and later on torn down. So, I live next to a very big large field, it looks like a farm area if you werenít familiar with the neighborhood.

Q. How many siblings do you have, Erika?

A. I have four siblings, Iím the youngest of the four. I have two older brothers and one older sister.

Q. What does your mother do?

A. My mother is a registered nurse at St. Jude Convalescence Center. She looks after the elderly there.

Q. How many years has she been doing that?

A. Sheís been a nurse assistant for almost fourteen years. She started working when I was six years old, I was in first grade. ...

Q. Has anyone in your neighborhood gone to the U of M Law School?

A. No.

Q. So you would be pretty remote from a legacy point then?

A. Yes.

Q. [Having heard testimony sitting in the courtroom about odds ratios for people being accepted into the University of Michigan Law School] what do you think ... the numbers look like for the chances of the vast majority of people in your neighborhood getting into [the school]?

A. Zero.

Q. Is it your current intention to go to law school?

A. Yes, it is.

Q. There has been a question raised in this courtroom about whether or not if affirmative action were eliminated, applications of black students would drop off, ... would you make an application to a resegregated law school?

A. No, I would not. ... [Because] segregation, the history of segregation in our country is real and itís true. And I cannot ever see myself going to any institution that doesnít take that into account and acknowledge that you have to take race into account in order to integrate these schools.

And I will not go to a segregated school because I understand the struggle, and I did identify with the struggles to desegregate the institutions in American society. And I wonít participate in their resegregation.

Q. Iím going to ask you some questions about your life and the experiences that have impacted your grade point average up to this point. Iím going to start with your education prior to high school. ... Where did you go to middle school?

A. I went to middle school at Drew. ... Drew Middle School was built shortly after the Detroit riot, so it was built with very, very few windows. And the classrooms that do have windows are labs or science rooms.

And the windows are not built for the sun to come into the building .... So it was a place where you really didnít see the light of day on a daily basis. Most of the day you were inside of the classrooms and you were not allowed to see what the outside world was doing, it was almost as if you were in a little mini prison there.

Q. How did it make you feel to be in a school like that?

A. It made me feel constrained, as if when I walked into that school I was no longer a part of the rest of society. You felt like you were locked in and locked down, and you didnít have freedom pretty much. ...

And the most recent part that has been sectioned off, has been made into a Department of Public Safety. So now thereís a whole Department of Public Safety inside of that middle school where classes used to be. ...

Q. And how old are the students of the school?

A. From 10 to 13 or 14.

Q. Why do you think there are police in that school?

A. I think there are assumptions about how the students will behave. I think that people assume that there will be violence, thatís why the school was built with no windows in the first place.

From there ever being more students that enter that school building for them to say, you know, we assume that you wonít be able to handle having a window, so weíll build an entire school without any windows says something about it.

And I think thereís a lot of assumptions about how students will behave and, you know, whether or not theyíll bring weapons into the school at the age of ten.

Q. What did that communicate to you about how you were being seen by society?

A. Well, you definitely werenít seen as someone who is expected to succeed in that environment. It was almost as if people assumed that you would fail from the very start, and you werenít given the opportunity to overcome that at that stage.

Q. You spoke of the school feeling like a prison, did you think to yourself at that time that you were being treated like a prisoner?

A. Yes, I did. And I felt especially for the black male students there, that it was training for those black men to be inside of a prison.

The security guards there very rarely bothered the women students. But it would be a struggle and a tussle when they would put their hands on the black men students there.

And it was almost as if they were saying, you have to get used to this because this is what your life will be like, you know, for the rest of your life. You might as well be getting ready to know how to act in prison and know how to demean yourself in front of me. ...

Q. How did you feel about the education you received?

A. I knew that the education at Drew was not up to par. I knew that there were magnet middle schools that people went to that were much better than Drew Middle School.

I know that we didnít have proper supplies there, we didnít have enough books to go around for the students. And I knew that it was somewhat strange that we always had to stay inside.

At that age itís just kind of strange for you to have a football field or a baseball field and it was not never ever utilized. And I knew there was something wrong with that education at that school. ...

The academics there were not strong either. I donít [ever] remember having the actual supplies for a math class. And I remember being in the music class there, which is the two classes that students were able to actually participate in and learn something from.

Q. How many students were in the classes?

A. There were about 30 kids in my class.

Q. So you liked the music class?

A. I did like music class, I started playing clarinet when I was in third grade in my elementary school. ...

Q. Were there other classes that you liked?

A. The only other was math. ... Because the teacher wasóshe knew how to respect the students and therefore she was respected back. And she knew how to work with kids, she had a passion for teaching. She knew what our needs were.

Even not having enough supplies, she would go out of her way and often times she got in trouble by the principal for asking questions why there were not enough books for the students to go around. And we absolutely adored her. And therefore we were able to focus in that class.

Q. Were you not able to focus in other classes?

A. I was not able to focus in the homeroom class, which is the class I spent about three to four hours a day in every day, because there werenít enough books. And it was just really difficult to teach like that.

Q. What would happen in that class?

A. Basically studentsówe just kind of laid back and did what we wanted to do. There was really nothing to do. We come to class and there was never ever an assignment hardly. Like hardly ever unless someoneís mother came to see what was going on inside of the school.

And then the teacher would try to get a book and turn to this page or whatever. But most of the time we just kind of sat around, talked, you know, made up little things to do and entertained ourselves when we were there. ...

Q. Was [your school] one hundred percent black?

A. As far as I can remember, I donít remember seeing any other type of face there. It was like all black.

Q. Is there anything that happened at Drew that made you start to think very hard about what your future was going to be?

A. I remember writing a paper thinking about what my goals were for the future. And it really made me think about what type of high school I wanted to go to. And I knew that if I wanted to get a better education, if I was going to have more opportunities, that I absolutely could not go to my neighborhood high school. And that made me set Cass Tech as my goal for high school.

Q. What is Cass Tech?

A. Itís a magnet school in Detroit, itís one of three or four magnet schools. And Cass Tech is known to be the best, one of the best.

Q. How did you hear about Cass?

A. I was in the marching band in middle school and we would always participate in the broadway parade, and I would see the Cass Tech marching band and they beat me, they were the best. And that made me want to be part of that.

Also it was known, it was common around to everybody that Cass was one of the best schools to go to. Thatís how I heard about it basically.

Q. Were there ever fights between students at Drew Middle School?

A. Yes. ... There were often fights there among students. One fight in particular that really made me decide that I could not go to my neighborhood high school, was one of my really good friends got into a fight with some people and got her head busted open.

It was really common for people to just carry a number of locks, combination locks on shoe strings. Put a lock on your shoe string and tie it up and you just kind of carried it.

And I carried it foróI carry locks for protection while walking to and from school and catching the bus. And it was very common, everybody had locks it was no big thing. Everybody knew everybody had locks on shoe strings.

And my friend got her head cracked open with like, I donít know how many locks, it had to be over seven. And she had to get her head stapled. And because of that she ended up leaving the middle school.

And I knew that if I wanted to just like get away from that environment and stop fighting myself, that I had to not go to my neighborhood high school.

Q. Was there anything else that happened that made you determined to try to go to a magnet school?

A. Well, I had auditioned for Cass. I had gotten into Cassólet me try to explain this better. There was a test that you had to take to get into Cass, King or Renaissance. It was called the Cass, King or Renaissance test.

I took that test, I did not pass that test. And I was able to find another way to get into Cass. And what I did was, there was such a thing as special auditions at Cass.

And if you had a special musical talent or an artistic talent, or you were some type of actress or actor, you could get in.

And I found out that my best friend was going, she had scheduled an audition to go there and I wasnít really able to get the information that I needed to schedule the audition.

It was kind of like I was doing everything on my own trying to find out what information was available for me.

And so I just got my instrument, I grabbed some music and I was like, can I go with you on the day that she had her audition. And she said it was all right.

And I went with her down there and I just kind of like begged and pleaded to the music teacher to just hear me play. They really didnít have a space for me, I didnít have a time slot, I had nothing. And I was like, can I just play.

And they let me play, and I gave them, I think, a copy of my report card or something like that. And maybe another piece of paperwork and I got in. ...

Q. Did anyone push you in the direction of going to Cass?

A. No, it was just something that I decided to do by myself. None of my siblings even had taken the test to get into Cass, and I just decided that I had to go there.

Q. Did anyone assist you in any way?

A. No, I went to the audition just by getting that ride from my best friend. And going up to the music teacher and kind of pleading to be heard that day.

Q. How old were you when you made that decision in your life?

A. I was 13. ...

Q. Despite having gotten in, were there things that might have come between you and a Cass education?

A. Yes. First thing was that my mother is originally from Birmingham, Alabama .... And she was thinking of moving back to Birmingham that year, because she wanted to live closer to my grandparents so that she could have more help raising my siblings and I.

And she was planning on moving back to Birmingham when I got into Cass, I was like, well, we canít go, we have to stay because Iím going to Cass.

And she was kind of like hesitated about it, and she was just like, well, you can go to a school down there. And I was like, thatís not good enough because I want to go to Cass. I did all of this stuff to get into Cass, I have to go there.

And so I even went to the point of being like, if you ever move back to Birmingham I have to find somebody to live with, because Iím going to Cass. And so she ended up staying based on that.

And if you ask her today why she didnít move back to Birmingham, she will say because my youngest daughter wanted to go to Cass.

And then there was the other issue, because I had gotten in on special admission I had to go to summer school. And I had to take two classes, each class cost $65. And that was a big economic sacrifice for my family.

And my mother didnít think she could pay it at first, and I was like you have to come up with the money. And I almost felt like I was asking too much, I was asking more than my fair share as one of the four children, and asking my mother to stretch it a little bit too much.

But she managed to come up with the money. She was worried about both the money for the class and also bus fare that I had to pay.

Q. Can you describe how it is that you had to pay bus fare over the four years that you went to Cass?

A. Yes. Originally if you were on reduced lunch you could get a free bus pass. By the tenth grade year they had changed that, and if you got reduced lunch you had to pay for your bus fare.

And it was the regular student fare. So there was no type of reduction in that amount of money at all.

Q. And you had to take the city bus?

A. Yes.

Q. Was there any guarantee that there would be a seat available on the city bus?

A. No. ...

Q. How was Cass different from Drew?

A. Cass had way more educational opportunities than Drew did. Also Drew was a very, very working class school, most of the students were poor or working class. Cass had more middle class students that went there. So it was kind of a different environment all around. ...

Q. How would you describe Cass High Schoolís racial composition?

A. Itís over 95 percent black. There may have been, may have been seven whites, Iím stretching it. Maybe like five to seven white students who graduated in my class out of a class of 522 students. And there were a couple of Latino students and a couple of Asian students. ...

Q. What is the neighborhood like that itís located at?

A. Cass is located in the Cass Corridor, that has kind of a meaning in and of itself, Cass corridor. Itís an area thatís very run down, lots of abandoned buildings.

And I almost canít remember a day where I couldnít see people who were homeless around in the area, people who were prostituting in the area.

Q. How early did you have to leave your house to make sure that you got to school on time?

A. I left on a regular morning between 6:50 and 7:05 in order to make it to school on time, school started around about 8:00.

And on Wednesdays when I had sectionals, that is practice for my music class, I had to leave around 6:30 in the morning because practice started at 7:15 a.m.

Q. Can you describe the route you had to take [to walk from your house] to the bus stop?

A. The bus stop is two blocks away from my house. And there are no houses by my house, so if I wanted to be safe and take the safe route meaning there is like lights, I would go the long way and go like the complete two blocks taking the lighted streets to the bus stop.

If I was in a rush, which was often the case, I would go down the street, there was a dead end across the railroad tracks and cross one of the fields to get to the bus stop. Which is the quickest way to go, but there was hardly any lights over there.

Q. And did you often walk and stand by yourself in the dark?

A. Yes.

Q. Were you ever concerned for your safety?

A. Yes.

Q. Were there particular moments when you were concerned?

A. The main period of time that I got really concerned about my safety is when there was a couple of rapes of girls going to school by themselves in the morning.

And during that period I got kind of worried and was trying to be extra careful, but I couldnít be anymore careful than I was already being.

Q. Did you ever encounter anyone on your trip to the bus stop?

A. No. I mean there would be people who would be not in their right mind, strung out on drugs who just happened to be out. But nobody really bothered me.

Q. Can you describe what Cass the school itself is like?

A. Cass is very big, it has I think eight floors. ... It is run down, to be one of the best schools in Detroit.

They have the very original elevators that were placed into that school, I donít know that that school was built way before 1950. And they have the original elevator to operate, but itís not accessible to students who are not physically disadvantaged. Kind of run down, falling apart. Thatís a basic description of it.

Q. What would you say about the resources?

A. Very scarce. I mean there werenít enough books to go around, I can just give you an example. I took French One my first year at Cass, and we had some books but not enough. We often had to share or leave the books in the classroom.

And then when I took French Two, the school ordered a new series of books, right? So, the people who were taking French One had brand new French books. But the people who were taking French Two had no books.

And we kept asking the teacher why we donít have any books, itís really hard studying a language when you canít see, like you canít see the structure of the sentences, you canít put the words together and the teacher is constantly trying to write everything on the chalk board and you had nothing to take home to study afterwards. It was really, it was impossible. ...

And so basically I wasted a year for nothing. I didnít learn any French that year, I didnít even like French. And so when I got to college I took Spanish instead. ...

Q. I want to ask you some questions about how you became involved in the case. ... [D]id you come to hear a presentation about this lawsuit?

A. Yes, I heard a presentation by an organization called the Coalition to Defend Affirmative Action By Any Means Necessary. They gave a presentation to a group of students which I was a part of.

Q. Where was this presentation?

A. It was at Cass. It was in one of their auditoriums.

Q. About how many other people heard it?

A. I would say about 200 other people heard it.

Q. Did you decide on the basis of that talk to become an intervenor in this case?

A. Yes. It was that and seeing the differences in suburban and the city schools, and participating and rallying for the defence of affirmative action. All of that kind of combined and made me want to be an intervenor.

Q. Did you also shortly after that attend a demonstration at U of M ... in support of affirmative action?

A. Yes.

Q. How did you feel as a result of being at that demonstration about your possibility of going to the University of Michigan?

A. Well, that made me apply, because I hadnít applied to the University of Michigan yet. I had already made up my mind I was going to attend college, I was going to continue to be a dork, isolated myself just doing my work. But going to that demonstration made me want to apply to the University of Michigan.

Q. Why?

A. To become someone who could fight to preserve integration and affirmative action. When I tell people that, they probably donít believe me. But if not for that I probably wouldnít have everóI wouldnít have applied to Michigan ... And just because of that, I knew I had to come here to Michigan.

Q. Had you taken the standardized test that you submitted with your application [to Michigan]?

A. Yes. ... I took the ACT.

Q. What was your score on that test?

A. 21.

Q. What was your GPA?

A. From Cass I had a 3.7.

Q. Were you then admitted to the University of Michigan?

A. Yes, I was.

Q. Do you think you would have gotten in without affirmative action?

A. I do not.

Q. Why is that?

A. Because I know that affirmative actionóthe only reason affirmative action is in place is because there are institutions of education in this country that were segregated, thatís the only reason itís here. Itís not some magic puzzle or whatever.

You know, itís not very difficult to understand. It is because people were fighting to integrate. And if you donít take that into account, if you donít say that, you know, your university or your institution of education, if you donít just tell the truth that before affirmative action was created, black and other minority students werenít getting into this university, Iím not going there.

Iím not confident at all that I would have got in before that, because it wasóaffirmative action is what made it possible for the university to become even remotely integrated. ... You canít equate race with anything. Thereís nothing that you can say, well, race is like X, Y or Z, nothing else exists [like race]. Because race ... has a very historical meaning to it.

Because the black race, you have to identify that the black race had to overcome slavery, had to overcome segregation. And now itís fighting to keep the opportunity just to ... go to higher education institutions.

And itís not the same. Nobody is trying to keep tuba players from going to the University of Michigan. Theyíre trying to keep black people and other minority people from going to the University of Michigan. ...

Q. Has the University of Michigan been a race neutral experience for you?

A. No. ... When I went to U of M, for the first time I realized that I am a minority. I was never a minority in the city of Detroit, because Detroit is over 90 percent black. And there were things that went along with being a minority at U of M and in Ann Arbor.

Q. Can you give an example, say, from class, ... that made it stand out to you?

A. Just on a general basis at U of M I think people have assumptions of how black students will act or how theyíre performing in classes. But beyond that, because I am a minority I do experience racism on a very daily basis at the University of Michigan.

And I remember in my freshman year the first semester after I had takenóafter I had went to [the] Summer

Bridge [program], I took a biology class. And it was the first day of class and the teacher, the graduate student kind of went around doing like an ice breaker. ...

And she went around asking people whatís their favorite color, whatís your favorite movie and why. And I was one of two black students in that class.

And when she got to me her question was, what type of animal do you think you look like and why. And I donít think she would have asked that question of me if I was white.

And because of the fact that white people have since, you know, people decided that they could go to Africa and bring black people to this country, [black people] have been thought of [as] being less than human, less of a person, it was written into our constitution that black people were less than a person.

So, for her to ask me what type of animal I thought I looked like, you know, was really offensive and she knew it, and everybody else in the class knew it. Everybody kind of like gasped or like made a reaction and I was just staring at her, because I couldnít believe that she had asked me that question.

But she acted like absolutely nothing was wrong. I mean even the white students were acting like, oh my God, I canít believe she asked that question. And she was like, so what is your answer.

And I was like, well, you know what, I donít think I look like any type of animal, because Iím a human being. And she was like, well, thatís a great answer.

And that really did have an effect on my performance in that class. I had a million things going through my mind at that moment. My initial thought was that I should really slap her, and then I was like, well, I probably shouldnít do that because I probably will get kicked out of the university for that.

And then I thought, well, maybe I should drop the class. And then I was like, I really need this class. ...

Q. Did you at some point say something [to this instructor]?

A. Yes, I said something at the very end of the semester, after the last meeting of our class. I sent her an email, it was like that question was really offensive and you should never ever ask anybody that question.

You know, you should really never ask anybody black that question, because you have grown up in this society and you know what that means. It took me four months to do that.

Q. Why did it take that long?

A. Because I wasnít sure how to react, I was constantly thinking, like even in class is there something that I could have said differently. How can I really respond to this. Is she going to be mad if I raise it now, and will that affect my grade.

And so it was the first time that I had dealt with a face-to-face instance of racism, it was the very first time and I didnít know what to do. ...

Q. How does it feel to walk around campus?

A. Because most people who walk around campus donít look like me, you do feel ultra isolated even just walking downtown or walking to a store or something like that.

And the main way I can really illustrate that for you is that, I have often had conversations with my friends and thought this to myself that when I first went to U of M and I would walk down the street and a white person was coming by, I would always step out of the way.

Whether I had to step in the snow or the mud or whatever it was. And I came to realize I was like, you know, Iím always stepping in the mud, people never move out of my way ....

It [was] almost as if people expected me to move because Iím black, and, of course, they had the right because the sidewalk was made for them and not for me.

So, I realized that, I was like, well, Iím not stepping in the mud no more. You know, Iím not walking in the snow, Iím going walk on the sidewalk like everybody else. They donít feel the pressure to move out of my way, why is it that I feel the pressure to move out of their way.

So now I donít do that anymore. It took me a while to realize that I was even doing that. And that was almost the rule in the south in Birmingham when segregation was there, that you had to move out of the white peoplesí way.

And my mom is from Birmingham and she never related that story to me. For some reason or another, it was already in my mind that that is what I was supposed to do.

And so now I donít move anymore, and sometimes I bump into people, we bump into each other and sometimes we donít. Because I have just as much right to walk on the sidewalk as everybody else. ...

Q. Does a day go by, or even an hour when youíre not conscious of being black?

A. No.

Q. The assumptions that people make about you because of your race, do you think that they are made because of the existence of affirmative action?

A. Absolutely not. The assumptions of black inferiority and they use this word stigma, was created long before affirmative action was ever created.

Thatís why people didnít want to integrate their schools, that was long before affirmative action. When they wanted to keep the South segregated and those students who were attending schools like Linda Brown who was involved in the Brown versus Board of Education case.

She didnít feel stigmatized because of something called affirmative action, because it didnít exist then. If she felt stigmatized it was because people had racist views of her and assumptions about her.

And affirmative action is to offset those. To offset those assumptions and stigmas that people already had. And to make it possible for people to be able to integrate the institution and go to the schools that they want to go to.

Q. Is there anything that you would say is the hardest thing about being black at the University of Michigan?

A. The hardest thing about being black at U of M is trying to hold onto your own culture while succeeding in an environment where you are a minority.

People have all of these different theories about what it takes to be successful in American society. And some people will say that you have to pretend like youíre not black when youíre around white people.

And then when you go back home you can just kind of like be yourself again, you can relax. That is very deep at Michigan.

And as a black student at Michigan, you have to fight to keep a sense of yourself, to be yourself. Iím not going to pretend like Iím somebody that Iím not ó ever.

Iím not going to talk the way you want me to talk, Iím not going to act the way you want me to act because you think itís the way to act in order to be successful. Iím not going to do that.

And itís a daily fight and a daily struggle to be yourself and to succeed there. Because a lot of students wonít fight, they wonít fight against racism.

And if you donít fight against the racism, if you donít say nothing when people say those things to you, you just swallow it all, and in swallowing it all they try to prove to the white students that, you know, I am just like you except Iím black. ...

And thatís a really hard struggle for most black students there. Is to be yourself without

peopleówithout feeling like you have to conform to everybody elseís idea. ...

Q. Despite all of your achievements, do you think now that without affirmative action you would be able to get through the University of Michigan Law School?

A. No.

Q. Would you ever feel given your whole life and your experiences on the University of Michigan campus, would you ever feel ashamed to rely on affirmative action to gain admission into the University of Michigan Law School?

A. Absolutely not. ... [W]hen the university was established, there was no black students there, there were no women there.

And for the admissions policy to take that into account and to say, yes, the society has discriminated against black and other minority people, and without these programs, we wouldnít let them into the university. So you have to take race into account.

And I would never be ashamed of that. I mean a simple acknowledgement of history, I donít have a problem with that.

Q. And even if you could apply and you could get in without affirmative action, if it were a question of it being one or two [black students admitted], would you go?

A. Absolutely not. I would never participate in a university that cannot admit to the truth ó cannot admit to the truth that black and other minority people are still being discriminated against, and have been discriminated against in the past.

I want no part of that. Because wherever I go to school, wherever I go to learn, the truth has to be told. And if thatís not there, you donít take that into account, I canít go to that university. ...

Q. Are you glad youíve made this fight?

A. Absolutely. Itís a fight I have to make. I didnít feel like I had much choice.

Q. Have you ever thought you should stop fighting for black equality?

A. Absolutely not. Because either you fight or you donít. And if you donít fight, you lose. If you fight you have a chance of winning.


Closing Argument by Miranda K.S. Massie

Ö Out in the hallway, just outside the doors to this courtroom, thereís a very famous Norman Rockwell painting of a black child, a girl of six or so, in completely spotless shoes, being escorted by four white men who are armed Federal Marshals. Sheís carrying her school things and her head is high, with a rotten tomato splattered on the ground; behind her is a racist slur written on the wall. And sheís surrounded by those armed Federal Marshals as she walks into school.

Her name is Ruby Bridges. And the painting depicts the first day of her first grade class when she was the first black student to go an otherwise all white school in New Orleans which had recently been put under a federal court order to desegregate.

Ruby Bridges was born in 1954, the year that Brown was decided. Her grandparents were Mississippi sharecroppers. Her mother and father argued over whether to send her to the all-white school. Her father had fought in the Korean War in a segregated unit, and had become cynical while in that experience and felt certain that black people would never be treated as the equals of white people no matter how often and how thoroughly they proved their equal talent and loyalty and determination.

But Ruby Bridgesí mother who had worked in the cotton fields until the day she gave birth to Ruby Bridges insisted that Ruby would have a better education and a chance at a better job and a better life if she were part of integrating the schools of New Orleans. She convinced Rubyís father, and she convinced Rubyís father not just on the basis of Rubyís prospects according to books that Ruby Bridges has written, but on the basis of the prospect of all black children in the United States.

So Ruby Bridges walked through a mob to get to school. She walked through threats and slurs being screamed at her. She walked past coffins, models of coffins into which segregationists had placed black dolls. Every day, armed Federal Marshals came to her house to pick her up to take her to school. As a result of her attendance at this school, riots erupted throughout New Orleans. Her father was fired. Her grandparents who still lived in the state Mississippi, a whole different state, were kicked off of their sharecropping holdings because Ruby Bridges went to that school.

She was the only child in her first-grade class, the single and solidarity child in her first-grade class for her first-grade year because the white parents had taken their children out of the class. And at recess she couldnít go outside to play because she wouldnít have been safe on the schoolyard.

The basic underlying question before the Court is: Whether that year of walking through a violent mob every school morning in the year 1960, not very long ago, whether that year of walking past death effigies, and through slurs, of learning the alphabet alone, and watching white children play through the window during every recess, whether that year in the life of Ruby Bridges will have been lived, will have been survived, will have been undergone in vain.

Weíve made real progress. But the amount of progress that weíve made is still ... unacceptably limited. Our progress towards equality and fairness and integration has always required tremendous, conscious efforts and those are the efforts that are required now.

As [Intervenors witness, Drirector of the Harvard University Civil Rights Project] Gary Orfield testified, the state in which this Court sits is now far more segregated than the Louisiana and the Mississippi in which the Ruby Bridgesí story, in which Ruby Bridgesí history took shape.

We cannot afford false comforts. We canít afford complacency. And we canít pretend that thereís nothing that we can do. Our options are: We can keep moving forward, or we can fall backward, closer to the conditions that Ruby Bridges faced, and faced very recently, just a generation ago.

So to us, Judge, the real question is: Is the painting in the poster just outside the courtroom doors, there to put our minds falsely at rest, to put our minds to sleep, to make us feel a shallow self-satisfaction, or is it to remind us of how far weíve come, of what itís taken, and what itís cost to come this far, of how precious, how terribly precious our progress is, how hard fought it is, and how far we still have to go.

Itís in that context that I want to talk about the three factual questions you posed for the parties. Your first question: To what extentóIím paraphrasing thisóis race a factor in admissions at the University of Michigan Law School? Our answer I think you already know is: Not enough, not nearly enough. Race should be much more of a factor in admissions at the University of Michigan Law School. Iíll come back to that in more detail in a moment.

Your second: Is there a double standard under which minority and whites students are treated differently? Our answer to that: There is absolutely a double standard, but itís the opposite of the one implied by the question and by the plaintiffsí lawsuit. Thereís a systematic double standard that operates to favor white people, that operates to the disadvantage of minorities, of black, Latino and Native American applicants. And affirmative action operates to offset that double standard incompletely. To off set it a little bit, to make it less of a double standard.

Your third question: Does affirmative action have the effect of making things more fair given the bias and discrimination and inhere in admissions criteria like the SLAT, and undergrad grades, the discrimination, bias, unfairness that are given effect by, that are operationalized by those numerical criteria. And as you know, our answer to that question is that that is so without any doubt.

Much on the evidence on our points about grades and the LSAT is completely uncontested, not just uncontroverted by proof, but not contested at all by the plaintiff.

On the question of the extent to which race is a factor in admissions at the University of Michigan Law School, the Law School considers race in admissions as [University attorny] Mr. [John] Payton has just argued to the extent that itís needed to achieve a critical mass of minority students. This approach is clearly in compliance with the letter and the spirit of the Bakke case, and with any understanding of the importance of diversity and integration in legal education.

The alternative, the alternative to ensuring the enrollment of a critical mass of minority students is tokenism. Thatís the unacceptable situation thatís been faced by [Intervenors witness, UCLA law student (one of two black students in her class)] Chrystal James throughout her law school career at the University of California Los Angeles post affirmative action there. And itís the situation thatís beenóthat was faced by [Intervenors witness, Professor Emeritus of History, Duke University and Chair of former-President Clintonís Initiative on Race] John Hope Franklin throughout his academic career as a student because despite all of John Hope Franklinís accomplishments, despite all the recognition heís achieved at every stage of his intellectual life, he told us that he has never been able to escape feeling like a token. John Hope Franklin has always felt like a token until he arrived quite recently at the Duke University History Department which was much more integrated than the other departments where he had been hired, where there were already black scholars, black historians.

Chrystal James in some of the most moving testimony in this case made it clear that the token numbers at UCLA, the fact that there was only one other black student in her class, the lack of a critical mass of minority students has absolutely thwarted her legal education, and harmed her own sense of herself, of her potential, of her promise.

Without enough attention to race, to enroll a critical mass in legal education every black and Latino and Native American student would face the situation like the one that Chrystal James described; like the one that John Hope Franklin has faced his entire life. That situation has much more in common with a medieval ordeal of some kind than it does with the legal education. And it means that the student, the black, the Latino, the Native American student is constantly either warding off or absorbing a set of stereotypes and stigmas.

It would be unacceptable for the Law School to do anything less than to try to enroll a critical mass of minority students. Again, thereís no question that the Bakke case permits their doing so.

Where we have achieved the measure of integration and diversity has profoundly benefited everyone as testimony across from several generations and from across this entire continent repeatedly made clear over the course of the trial. ...

Walter Allen testified that the students at the Law School, the minority students at the Law School feel that they are under siege. They feel out of place in territory thatís defined by the putative but very deeply felt entitlement of white students to be there at the Law School in contra-distinction to the sense that the minority students get that theyíre interlopers, that theyíre not treated as having the same right to be there, theyíre not treated as being equally qualified, in particularly post the initiation of a lawsuit like this. The stigma that those students face increases dramatically. Just like Chrystal James pointed out, that it took going to UCLA after the elimination of affirmative action for her to feel the full stigma of racism as it applies to her sense of her own abilities and they were regarded by others around her.

But the problems at the Law School are essentially problems, fundamentally problems of too few numbers. Theyíre problems that you can solve, that you can help solve. We need a holding here that will allow the Law School to enroll greater numbers of minority students so that there can be a critical mass there. A holding that says that the Law School can take inequality into account, can take the need to offset inequality into account in making its admissions decision, in designing its affirmative policy, will make the students at the Law School, all of them, of all races, have a far richer and better legal education.

Your second question: Is there a double standard? Mr. Kolbo suggested that the Intervenorsí view is that we think thereís a double standard, we think itís fine, we think itís justifiable. Thatís not so. We think the double standard runs the opposite way from what the plaintiff contends and what the question suggests. The evidence shows indisputably and overwhelmingly that thereís a built-in double standard in education generally, not just society at large, but thatís true too, and there was evidence of that at trial, but in education and specifically in law school admissions, that that double standard favors white students and white law school applicants.

There are several components of this double standard which fundamentally reflects and expresses how much race and racism continue to be a defining axis in this society. But the components of the double standard combine to make race a systematic element of education and admissions. Systematic to use the words of Walter Allen following his study of feeder campuses to the U of M Law School and the U of M Law School itself.

Thereís a segregation and inequality in K through 12 schooling and that you heard about from a number of witnesses including Erika Dowdell, including Gary Orfield, including [Intervenors witness, Dean of the University of California at Berkeley Graduate School of Education] Eugene Garcia. Beyond that, beyond the connections between race and class in this country, shameful enough fact in itself, thereís a set of ways in which race operates independently of class in this context. Thereís a set of ways in which race and racism structure the educational experiences and performance of even the most economically privileged minority student.

These modes include differences in material resources. They include unequal treatment that is racialized, that is based on race, that is racist by even very well meaning white people. They include the stigma and the false racist stereotype of intellectual inferiority that effects every black student regardless of class, and that it also effects Latino and Native American students.

Those stereotypes and stigmas have an impact on academic performance that can be and has been empirically demonstrated and proven. These dynamics are described in the work of Claude Steele, and other educational experts who testified in the case. And perhaps most vividly by the students who testified for the Court. Itís very difficult but it is imperative for white people who havenít ever faced the systematic degradation of their mental capacity and worth based on race, to grapple with the extent to which their own privilege in this regard has shaped their experiences, to grapple to the extent to which their educational achievements no matter how hard fought, no matter how impressive, are always made, are always reached under circumstances and conditions that favor them while disadvantaging and disfavoring the success of minority students.

There are other questions that are involved in the resolution of whether or not thereís a double standard in place in law school admissions including differential access to test preparation classes, basic questions of test construction, questions of what undergraduate GPA means in the context of race and racism in this society, and in our educational system. And Iíll return to some of those shortly.

The bottom line here, Judge Friedman, is that thereís a sharp double standard, and that to take account of race and racism is the only way to offset the double standard that arises out race and racism. There is no other way to deal with it than to take account of race and racism. So affirmative action is the only way to reduce what would otherwise be an untrampled double standard in admissions.

We can begin to measure the extent of the double standardóand Iíll talk about this more in a bitóby looking at what has happened in California. Another way of saying that is we can begin to measure the extent of double standard of unfair inequality that is pressed on black people and other minorities through the educational system that is ratified and operationalized by admissions systems when they divvy out opportunity and deny opportunity on the basis of opportunities that have already been unfairly and unequally distributed by looking at the disparities between representation in a given educational program, and representation of different populations in the population as a whole, that the starting point for figuring how much of a double standard there is because we start from the premise that we are all created equal. Any disparities in performance and attendance at law school and so on come out of problems in our educational system, not problems in black children, then young adults, then law school applicants; Latino children, young adults, law school applicants; Native American children, young adults, law school applicants. Those are problems of race and we have to deal with them by taking account of race.

Your third question, does affirmative action have the effect of reducing the unfair impact of using test scores and grades in law school admissions. Here, I think the evidence is absolutely clear, that affirmative action is the one way of taking account of the unfairness and bias that are put into effect by the use of those measures. And as I said earlier a lot of this evidence is not just un-countered by evidence from the plaintiff, but completely and totally uncontested.

Undergrad GPAs and LSAT scores are thoroughly saturated with unfairness and bias. They donít measure real achievement. They donít measure the capacity to learn law. And as Rick Lempert testified yesterday, they certainly donít measure the capacity to practice law and to be successful in a law practice.

Walter Allenís testimony showed that undergraduate GPAsóand again he was focused on the feeder schools to the University of Michigan Law Schoolóreflect continuing problems of racism and bias and the ... downward pressure on academic performance of stereotypes that persist even for the best prepared and highest achieving minority students, the student whoíve overcome countless burdens that their white counterparts have not had to overcome to arrive at these campuses, to have the ambition to go to law school still face a set of factors that make their GPAs means something different. They mean something different in those grids that [CIR witness and statistician] Professor [Kinley] Larntz is so fond of. They simply donít mean the same thing across race. And the Court should not regard them as meaning the same thing across the race.

After the testimony thatís been presented here it would be to simply ratify the racism and racial dynamics that produce those differences to regard those grades as meaning the same thing across race.

Another source of differences in GPAs, of course, differential K through 12 education. I mentioned that briefly before. Itís clearly the case that for students who arrive on a campus like the U of M Ann Arbor, or UC Berkeley, or Harvard of MSU, coming out of Cass Tech like Erika Dowdell, versus coming out of a better funded mostly white suburban school, there will be an impact on GPA. In some sense thatís prior to the question of when you get there, the racism and the racial dynamics that are still there to impede academic performance. Theyíre in some ways related, in some ways different things. Both very powerful factors that show up in aggregate differences in GPA. Affirmative action has the effect of offsetting those differences, of offsetting what would be the astonishing unfairness of looking at numbers, credentials that are shaped by racism and unfairness, and simply rubber stamping them, ratifying them, using them as a basis for imposing more hardship, more exclusion, less opportunity at every stage of the educational process.

The evidence on LSAT is just as compelling, Judge. Thereís uncontested evidence, for example, from [Intervenors witness, nationally recognized testing expert] David White, setting aside the bias Iíve just discussed in grades, shelving that completely for the sake of argument. He controlled for grades at the same undergraduates schools and found that 9.2 gap persisting in LSAT scores between black and white law school applicants. Two grads from Michigan State, or from Yale, or from whatever school, but the same school, they have the same GPA, they have a 9.2 point gap, a gap of 9.2 points [on the LSAT]. ...

Race is the dynamic, racism is the problem. We need to take those into account. Thereís no shortcut. ...

And a final perspective on your third question: How much should race matter in law school admissions? And to that we respond: It should matter much more than it does. It should matter enough that it offsets, that it fully offsets, instead of just starting to offset the racism and bias that saturate the credentials and that saturate the educational experiences of all students, but differentially depending on their races.

There, again, we suggest the fair starting, a fair measure of whether race is being sufficiently taken into account is the population for the relevant unit. That could be the state. It could be the nation. In the case of a law school like the University of Michigan, it would probably be some of both, but thatís a starting point for analyzing whether race is being taken into account in a way that is sufficient to offset the unfairness thatís operationalized in our educational system, whether itís being taken into account enough to avoid simply perpetuating and intensifying the existing inequalities in education.

When itís not taken into account enough, what happens is what happened in California. We have a grand social experiment unfortunately in California. We know what the plaintiffís case looks like on the other end if itís successful. And itís frankly hard to hear the plaintiff puts herself in Brown versus the Board of Education when whatís being fought for is the result of that social experiment, is the resegregation of the UC system. Is what [Intervenors witness, Oakland, California teacher and UC Berkeley Education student] Tania Kappner described yesterday in her students, in what they their futures as being, and in the terrible struggle she has to maintain their level of hope, of engagement in their own minds, in their intellectual possibilities that they know. And until they reverse their ban [on affirmative action] which they are all fighting to do, they have no chance of getting a decent higher education in the state of their birth not matter what they do, how hard they try, how many hours they spend doing their homework.

Thatís the outcome of the social experiment thatís being proposed for this state. We donít need it here, Judge. Itís just like Chrystal James said. She said her co-student, the only other black student in her class, saidóbecause she didnít want to testify, you go there and you tell them what happened here and not to do it there. We want to repeat that message to you because we know what this means. Itís been done in California. Theyíre fighting hard to reverse it. We have very confidence that they will succeed, but we donít need to go through five, six, ten years of agony, of resegregation, of increasing inequalities, of young people losing hope in this state.

Iíd like to go back to Ruby Bridges briefly, Judge, and to other struggles of desegregation which extended into higher education. As you know, Gary Orfield described affirmative action as voluntary deseg plans for higher education. The desegregation of higher education has not always been voluntary.

And I want to remind the Court of Mississippi in 1962, when James Meredith desegregated the University of Mississippi, and dozens of people died, literally fought and died over the question of whether that campus would be integrated. There was a small army of federal troops there on the campus as Iím sure the Court is aware, and there were armed battles between segregationists and federal forces.

It was an echo of the Civil War that [Intervenors witness and historian] Eric Foner testified about. The Civil War that really stood for the nationís decision to pay an incalculable price to move toward our national goals of equality and democracy and freedom. It was a war over the question of black equality and freedom, and it was the costliest and the bloodiest war in this nationís history.

In fact, the United States lost more lives in that war than it has lost in all the other wars before or since. Ten times as many American lives as in the whole span of the Vietnam War. And the reason why is that the question of race and race equality is so fundamental to this society. It took that many lives and it was worth that many lives, and that was the collective judgment of the nation.

Our progress towards more democracy and freedom, toward greater equality for all has always taken very serious effort. Itís never been quick and painless. But we have made real progress. ...

Those [affirmative action] programs have so expanded democracy and rights to participation economically, intellectually, socially in education, politically in every way, thatís what we owe our progress to. Itís my future. And I noticed from the names on the plaques in your chambers, youíve hired a lot of women clerks over the years. And itís their futures, too. Itís all of our futures.

Itís also my future as a person who is white, and as a human being in this society. Itís a future of everyone in this room regardless of age, regardless of gender, regardless of race. Itís John Hope Franklinís future, Faith Smithís future. Itís Connie Escobarís future. Itís Frank Wuís future. Itís the future of Tania Kappnerís students. Itís the future of the thousands of people from across the state of Michigan who have gathered several times now in the Ann Arbor campus, to declare their support for affirmative action on Days of Action that have been put together on that campus. Itís the future of the tens and hundreds of thousands of working class and poor white people who Gary Orfield has testified who faced it tremendously from the way in which affirmative action programs including in the state of Michigan opened up higher education to lower-income white people, democratized opportunity. The extent to which affirmative action policies operated as a wedge that broke down, started to break down in trench systems of privileged and of unfairness.

Itís the future of the student from the U of M and from Detroit high schools who have filled this courtroom on almost every day of this trial. Itís your future, too. Itís your future, too, Judge Friedman. Weíll move together either forwardóweíll move forward together, or weíll move back. We can make more steps toward equality and toward justice and toward democracy, or we can allow ourselves to be pushed backward, crippled, hampered, fall short of our common and individual potential. Itís all of our future. We all have the same future. Help make it a bright one.

 

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