UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION BARBARA GRUTTER, for herself and all others similarly situated, Plaintiff, Civil Action -vs- No. 97-CV-75928 LEE BOLLINGER, JEFFREY LEHMAN, DENNIS SHIELDS, and REGENTS OF THE UNIVERSITY OF MICHIGAN, Defendants, and KIMBERLY JAMES, ET AL., Intervening Defendants. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _/ VOLUME 7 BENCH TRIAL BEFORE THE HONORABLE BERNARD A. FRIEDMAN United States District Judge 238 U.S. Courthouse & Federal Building 231 Lafayette Boulevard West Detroit, Michigan WEDNESDAY, JANUARY 24, 2001 APPEARANCES: FOR PLAINTIFF: Kirk O. Kolbo, Esq. R. Lawrence Purdy, Esq. GRUTTER -vs- BOLLINGER, ET AL 2 1 APPEARANCES (CONTINUING) 2 3 FOR DEFENDANTS: John Payton, Esq. 4 Craig Goldblatt, Esq. On behalf of Defendants 5 Bollinger, et al. 6 George B. Washington, Esq. Miranda K.S. Massie, Esq. 7 On behalf of Intervening Defendants 8 9 COURT REPORTER: Joan L. Morgan, CSR Official Court Reporter 10 11 12 Proceedings recorded by mechanical stenography. Transcript produced by computer-assisted 13 transcript. 14 15 16 17 18 19 20 21 22 23 24 25 GRUTTER -vs- BOLLINGER, ET AL 3 1 2 I N D E X _ _ _ _ _ 3 4 WITNESS PAGE _______ ____ 5 6 WITNESSES PRESENTED ON BEHALF OF INTERVENING DEFENDANTS 7 JOHN HOPE FRANKLIN 8 Direct Examination by Ms. Massie 5 Cross-Examination by Mr. Payton 126 9 Cross-Examination by Mr. Purdy 130 Redirect Examination by Ms. Massie 149 10 Recross-Examination by Mr. Payton 153 Recross-Examination by Mr. Purdy 153 11 Redirect Examination by Ms. Massie 155 12 JAY ROSNER 13 Direct Examination by Mr. Washington 156 14 15 E X H I B I T _ _ _ _ _ _ _ 16 17 MARKED RECEIVED ______ ________ Exhibit Number 97 112 18 19 20 21 22 23 24 25 GRUTTER -vs- BOLLINGER, ET AL 4 1 Detroit, Michigan 2 Wednesday, January 24, 2001 3 9:00 a.m. 4 _ _ _ 5 THE COURT: Okay, next witness. 6 MS. MASSIE: Intervening Defendants 7 call Professor John Hope Franklin. 8 MR. PURDY: Your Honor, we don't 9 intend to have any interruptions today, but may it 10 still be understood that we have a continuing 11 objection for the reasons as we set forth before. 12 THE COURT: Continuing objection. 13 MR. PURDY: Thank you. 14 THE COURT: Mr. Franklin, how are you 15 this morning? 16 THE WITNESS: How are you? 17 JOHN HOPE FRANKLIN, 18 was thereupon called as a witness herein and, after 19 having been first duly sworn to tell the truth, the 20 whole truth and nothing but the truth, was examined 21 and testified as follows: 22 MS. MASSIE: Judge, I don't think 23 that Professor John Hope Franklin needs too much of 24 an introduction. 25 THE COURT: I don't think so either. GRUTTER -vs- BOLLINGER, ET AL 5 1 But you may put it just for the record. 2 MS. MASSIE: Just working on this 3 case has definitely been the greatest honor of my 4 life, and one of the biggest intellectual challenges 5 as far as the stimulation of my life and the 6 opportunity to work with Professor Franklin. There 7 hasn't been any greater thing in either category. 8 THE COURT: I am privileged to have 9 him in my courtroom, so it's nice to have you. 10 DIRECT EXAMINATION 11 BY MS. MASSIE: 12 Q. Could you spell your name for the record, please? 13 A. John Hope Franklin. 14 Q. And that's F-r-a-n-k-l-i-n? 15 A. Right. 16 Q. When and where were you born, sir? 17 A. I was born in Rentiesville, Oklahoma on the 2nd of 18 January, 1915. 19 Q. And where is that town? 20 A. Rentiesville, Oklahoma is 17 miles south of 21 Muskogee, Oklahoma. Muskogee, Oklahoma is 50 miles 22 south of Tulsa, Oklahoma. 23 Q. Is there anything north of Tulsa. 24 A. If it is, it's unknown. 25 Q. Tell us about your education, if you would, sir? GRUTTER -vs- BOLLINGER, ET AL 6 1 A. Well, I began my education in Rentiesville, Oklahoma 2 where I, first of all, was sitting in the back of my 3 mother's school room, she was teaching, that's when 4 I was three years old. And I learned to read and 5 write that year to her great surprise. She was 6 teaching others, but I was also learning. 7 I was in the room, but I kept quiet, 8 there were no day care centers or anything like 9 that. She was babysitting me while she was 10 teaching. I went through the first five or six 11 grades in Rentiesville, and then we moved to Tulsa, 12 Oklahoma. 13 There had been a riot in Tulsa which 14 delayed our moving there. And we went to Tulsa, 15 Oklahoma the tenth of December 1925. I was ten 16 years old. And I went to high school there. 17 I graduated from high school there in 18 1931. Then I went to Fisk University in Nashville, 19 Tennessee, from which I graduated magnum cum laude 20 in May of 1935. 21 And then the fall of 1935 I went to 22 Harvard University as a graduate student in history, 23 and I got my master's degree that year. And four 24 years later I received my Ph.D degree in 1941. 25 And I was already teaching, I taught GRUTTER -vs- BOLLINGER, ET AL 7 1 three years by that time. And I would say that my 2 career was lodged probably after I got my doctorate 3 in 1941. But it was interrupted, of course, by the 4 war to some extent, and I had various other trials 5 and tribulations along the way. 6 But I began to publish in 1943, and 7 my first book was published that year. My second 8 book two years later, and my third book in 1947. 9 And a number of books later. 10 Q. I know there's a couple of graduate students who 11 took the day off to come in and hear your testimony. 12 I'm sure they're now considering giving up academe. 13 A. Thank you. 14 Q. Tell us about the school where your mother taught? 15 A. Well, it was a one-room school. She was an 16 elementary school teacher, and she was teaching 17 reading, writing to the first grade. I was given a 18 paper and pencil and in the back row with a desk, 19 and she would come back there periodically to see 20 what I was doing. 21 And to her great astonishment when 22 she didn't hear me making any noise she came back to 23 see what I was doing and I was writing what she was 24 writing on the board. And that was the beginning of 25 my education. GRUTTER -vs- BOLLINGER, ET AL 8 1 From that point on, I was on my own 2 and I studied diligently I suppose, I tried to. But 3 both my mother and father were very important 4 intellectual powers or forces in my life. 5 My father was a lawyer practicing 6 first in Ardmore, Oklahoma where he received his law 7 license in 1907. The year of the statehood of 8 Oklahoma. 9 And from that point on he practiced 10 law successfully in Ardmore, Rentiesville, Tulsa. 11 In fact, he practiced law in Tulsa from 1921 to 1960 12 the year in which he died. 13 By that time I was already chair of 14 the Department of History of Brooklyn College, the 15 city of Richmond, New York. And I had already 16 taught by that time at Harvard University, and a 17 number of other institutions as visiting professor. 18 I have been a visiting professor at 19 Harvard University, Cornell University, and the 20 University of Hawaii and various other places along 21 the way. 22 Q. How many children were there in your mother's class? 23 A. I can't remember. I know the room was crowded, 35 24 or 40. 25 Q. And all of those children were black? GRUTTER -vs- BOLLINGER, ET AL 9 1 A. Yes, yes. All the children in the town were black, 2 all the people in the town were black. It was an 3 all black town in Rentiesville, Oklahoma when I was 4 there. I was born there in 1915, there were no 5 whites in the town at all. 6 It was primitive life such as you 7 can't possibly imagine. No electricity whatever, no 8 central heating, no heating of any kind which wasn't 9 made from wood or coal. No running water, no 10 library except in my parent's home, the only library 11 to which I was exposed. 12 No facilities of any kind that I can 13 think of. No amenities, no amusement, no public 14 amusement. Just a few churches, that's about all 15 that was in Rentiesville. 16 And when I left from Rentiesville in 17 1925 to go to Tulsa, I thought that was a new world, 18 entirely new world opened up. Which it would be 19 difficult to describe, because it was so vastly 20 different in every conceivable way. 21 Traffic, street cars, schools, little 22 library, not much larger for African Americans than 23 this witness stand, but it was there. And it was 24 an expression of the desire on the part of the 25 African American community to have a facility like GRUTTER -vs- BOLLINGER, ET AL 10 1 that. 2 It was not publicly supported, it was 3 privately subscribed to. And the first time I ever 4 had the opportunity to use books not in my parent's 5 home, was to go to that little library. And it was 6 once more, opened up a new world, entirely new world 7 to anyone who had not experienced that before. It 8 was an amazing experience. 9 School in Tulsa was a different kind 10 of institution from which I had been accustomed. It 11 was orderly, fairly large, although the African 12 Americans population in Tulsa was only about a tenth 13 of the population of the city. 14 The schools was like I couldn't 15 imagine, it was a large number of schools. An 16 institution run by blacks. But, of course, it was a 17 public school. But it was a public--they called it, 18 I don't know, this was a different kind of 19 segregation. 20 They didn't use the term segregation, 21 they used separate, The Tulsa Separate Schools. 22 E.W. Woods was principal of Booker T. Washington 23 High School, of the Tulsa Separate Schools. And it 24 took me a while to understand what that meant. 25 It meant that only people of my color GRUTTER -vs- BOLLINGER, ET AL 11 1 could go there. And it meant that if you were not 2 of that color, you didn't go there. It meant also 3 that you didn't have the opportunities that you had 4 at Central High School. Vast complex building on 5 the other side of town where they taught modern 6 foreign languages, we had none. They taught French, 7 Spanish, German in centralized schools, but nothing 8 like that. 9 So, I went to college without ever 10 having had a modern foreign language. And I had to 11 take--and I knew that by the time I was a sophomore 12 in college and I was going to major in history. 13 And my major professor who was a 14 young white man, the chairman of the History 15 Department at Fisk University which was all black, 16 of course, it had a mix, it was white and black 17 faculty. 18 He almost immediately decided that he 19 wanted me to go to Harvard. And we sort of--as an 20 undergraduate I was doing everything that he wanted 21 me to do to be certain that I was eligible to go to 22 Harvard, including the Harvard requirement of two 23 modern foreign languages in order to qualify with 24 any advanced degree. 25 So, there I was as a sophomore and GRUTTER -vs- BOLLINGER, ET AL 12 1 junior at Fisk University taking elementary courses 2 in French and German, so that I could be eligible to 3 qualify at Harvard. 4 And I took them and I did qualify at 5 Harvard in both languages, and was prepared in a 6 very careful way by him to be able to do the work at 7 Harvard. 8 When I went to Harvard, I had no 9 problem. As a matter of fact it was, if I can say 10 so, it was a push over if that, because of his 11 careful preparation. It was no other explanation 12 for it. 13 Q. Were there many Fisk students at that point who 14 ended up at the Harvard graduate school? 15 A. No, there were not many Fisk students at Harvard 16 graduate school. Indeed, there were almost no 17 students, other than white students at Harvard. I 18 had no black students, fellow students in any of my 19 classes at Harvard. 20 There were a few at the university, 21 maybe one in English and two in law school and two 22 in the Biology Department, and maybe one or two 23 more. Two or three other graduates. 24 I would say that there might have 25 been as many as--this is a liberal figure, as many GRUTTER -vs- BOLLINGER, ET AL 13 1 as a dozen students that were African Americans at 2 Harvard in 1936 when I went there. In 1935 when I 3 went there. 4 Q. Of thousands? 5 A. What's that? 6 Q. Of thousands? 7 A. Yes, there were 10,000 or more students at Harvard. 8 And I went to Harvard, of course, it was the pit of 9 the Depression. My father had to become what we 10 describe generously as became bankrupt. We lost our 11 home simply because of the extraordinary bite of the 12 Depression. The poverty was unspeakable. 13 So, that I went to Harvard, I could 14 not have gone to the University of Oklahoma as you 15 certainly know. And the University of Oklahoma not 16 only did not admit any blacks, no blacks could be in 17 the town after dark. 18 And they gave me a scholarship, out 19 of state scholarship it was called, and that was for 20 a hundred dollars if, if I passed my courses. That 21 is, I did not have the freedom to fail as they did 22 at normal Oklahoma. You were admitted and then you 23 might or you might not pass. 24 But I didn't have that privilege, I 25 had to pass in order to get that hundred dollars GRUTTER -vs- BOLLINGER, ET AL 14 1 from the state of Oklahoma against--paid toward my 2 tuition. And that remained the practice down to the 3 time that they admitted blacks to Oklahoma in the 4 1950s. 5 Now, the matter of trying to do the 6 kind of work that I undertook to do in graduate 7 school and after, it would project my life work. 8 Brought me into contact with the kind of life that I 9 hadn't imagined. 10 When I took my general examinations 11 at Harvard in the spring of 1939, I decided to do a 12 dissertation on North Carolina. So, I went to 13 North Carolina and there I went in to see the 14 director of the state archives. 15 And I told him I wanted to do 16 research on free negroes in North Carolina from 1798 17 to 60. And he said, well, I suppose I will have to 18 do something about that. He said, I see no reason 19 why you wouldn't be able to work here, he said, but 20 when we built this building we didn't anticipate 21 that anyone of your color would work here. And so 22 we don't have any place for you to work. 23 He said, but if you will give me a 24 week I'll try to arrange something. And I remained 25 silent and I looked at him and I had my mental GRUTTER -vs- BOLLINGER, ET AL 15 1 adding machine, I was going to have to pay the rent, 2 board, room and all of that for a week while I 3 twiddled my thumbs. 4 And I just looked at him and he said, 5 well, what about a half week. I said, I'll be back 6 Thursday, this was Monday. I went back Thursday and 7 they prepared a place for me. 8 They cleared out one of the exhibit 9 rooms, the smallest exhibit room there was for the 10 archives or display of archives of materials. And 11 they put a desk and a chair and a waste basket in 12 there. 13 And he gave me a key, he said, I'll 14 give you a key to the stacks because I don't think 15 we can request the white pages to deliver materials 16 to you. So you'll have to get your materials 17 yourself. 18 I said, all right. He gave me his 19 key. He said, you go through the search room that's 20 where all the whites were sitting and doing their 21 research. You go through the search room to the 22 stacks, and you get what you want and bring it over 23 to your room and you can work there. 24 And I did that and it turned out to 25 be the most satisfactory arrangement, because I GRUTTER -vs- BOLLINGER, ET AL 16 1 could sort of window shop in the stacks, pull down 2 what I wanted, things that I thought I might want. 3 And I would come through the main 4 reading room with my dolly and my library card, 5 laden with materials. And the white researchers 6 looked at me with some disdain as well as jealousy. 7 And two weeks later the director of 8 the archives told me and said, I have to take your 9 key. And I searched my conduct and wondered what I 10 had done that was offensive. 11 I said what's the matter, he said 12 well, the white searchers who see you coming through 13 the room with all of your materials which you have 14 selected yourself, says that this is a 15 discrimination against them and they want keys 16 themselves. 17 He said, well, I can't give everyone 18 keys and I therefore will have to take your key. 19 And you will have to abide by the regular rules 20 which, of course, would involve your bringing one 21 request in, depositing it, then going back to your 22 room and waiting for that to be delivered to you. 23 And I said, well, if that's what you 24 think it should be, all right. Now, it was at that 25 point that I realized the inconsistency and the GRUTTER -vs- BOLLINGER, ET AL 17 1 remarkable ingenuity, if I may put it, of racial 2 discrimination of those who practiced it. 3 I had to work in three libraries. 4 And within a radius of three blocks of each other, 5 literally within three blocks of each other. One of 6 them was the archives where I described that I had 7 used a separate room. 8 The other was the state library on 9 the other side of the square. And there I could go 10 into the main reading room and work, but there was a 11 regular place in the stacks for African Americans to 12 sit. 13 And we were not supposed to go take 14 the books off the shelf or take the newspapers in 15 there. But actually we were to make that request, 16 but we could sit there in the stacks and use the 17 materials. 18 Then on the other side of the square 19 was the Supreme Court library. And there were no 20 restrictions at all. We sat and did our work at the 21 same table that white people were sitting. 22 I said this is rather strange. In 23 the radius of two or three blocks, we had three 24 practices, three practices of racial distinction or 25 discrimination or segregation. GRUTTER -vs- BOLLINGER, ET AL 18 1 And that gave me to understand that 2 the practice of racial segregation was sort of 3 improvisational. That is they made it up as they 4 went along. 5 They have did this on one side of the 6 block, they did another on the other side of the 7 block, and another on the other side of the block. 8 Whatever seemed to pass their minds, as long as 9 there was distinction. 10 As long as there was a mark of, as 11 old people say, a mark of distinction, a mark of 12 oppression of some kind. The differentiation was 13 there. 14 Or another way, not only was this 15 practice at the highest levels, what I think of 16 libraries would be fairly high. It was practiced at 17 the other extreme, that I couldn't say which was 18 more praiseworthy or meritorious. 19 Outside the city, just outside the 20 city there were two barbecue joints or places where 21 you could go. I didn't go, but some other people 22 did. I went once and that was enough for me. I 23 didn't have to have a barbecue, I had to have those 24 papers and things like that in the libraries. But I 25 didn't have to have a barbecue. GRUTTER -vs- BOLLINGER, ET AL 19 1 But this struck me as rather 2 remarkable, and it was not unlike what they were 3 doing downtown in the capital square. You go out to 4 one of these places, barbecue places. 5 One if you went in to one of them and 6 you wanted to be served, you sat in your car and 7 young white girls would come out and bring anything 8 you wanted, serve you with great applaud. 9 Across the road was another, and you 10 could go and sit in your car all day and they would 11 look out there, and you would be in your car and 12 they wouldn't come out. 13 But you go in the place and you were 14 welcomed heartedly, warmly. I said, what's going on 15 here? On the one side they say we don't serve 16 blacks in cars. On the other side they say we do. 17 On the one side they say you're 18 welcome to come in and eat. On the other side they 19 said you can't even come in the door. You need a 20 road map, or you need an encyclopedia and a number 21 of other aides to help you navigate your way through 22 these racial minds as it were. 23 And that gave me to understand that 24 race distinctions were not very significant, except 25 to make a difference to. And it must have done GRUTTER -vs- BOLLINGER, ET AL 20 1 something to the people, it must have given them 2 some sense of superiority, or it must have given 3 them a sense of satisfaction if they could be a few 4 notches above or away from others. 5 And I decided that that was a kind of 6 a sickness, a kind of searching for something that 7 would give them a sense of security and superiority 8 and advantage. 9 And that to me--see, I found it in 10 other ways too. I've described what doing research 11 at North Carolina meant. If doing research in North 12 Carolina was that bad, when I went to Alabama to do 13 research with the confederate flag flying over the 14 Archives Building, I didn't know whether I even 15 wanted to attempt to do research there. 16 And the first morning I went in to do 17 research, I told the woman in the search room that I 18 wanted these materials, and she said, yes, I will 19 get them for you. And she brought them and handed 20 them to me. 21 And I waited for her to tell me what 22 to do with these materials, with this background of 23 having waited three days for someone to arrange a 24 room in North Carolina, I thought that I might have 25 to wait a week in Alabama or a month. GRUTTER -vs- BOLLINGER, ET AL 21 1 And she gave me the materials and she 2 stood there and looked at me. And I stood there in 3 a quandary, I didn't know what to do with them, I 4 didn't know where to go, where to sit. 5 I'm in the reading room, but I assume 6 that that reading room was where I could not sit. 7 But since she had not indicated to me that there was 8 a room separate for me in the basement or somewhere 9 else, I then did what I would do in Detroit at a 10 library, I went to look for a quiet corner. 11 And so I went toward that corner, she 12 said you can't sit there. I was like, why don't you 13 tell me where to sit, I said to myself. I said, 14 well, where should I sit, she said, you sit over 15 here with the others. She said that's the coolest 16 part of the room where they're sitting, and they 17 need to meet you anyway. 18 And so she said, you sits there. 19 Then she made all of them stop doing what they were 20 doing, and she introduced them to me. And she said, 21 now you sit there with the others, so I did. 22 But this is all confusing, you see. 23 You can't be certain what to do, you see. That's 24 what I meant by improvisation, you don't know, you 25 don't know where you stand. And I work there off GRUTTER -vs- BOLLINGER, ET AL 22 1 and on for weeks. 2 And at one point I wanted to look at 3 a set of papers, Governor Winston papers. And I 4 said to the person in the search room, I want to see 5 the Winston papers, they said we can't show them to 6 you, they're in preparation. 7 The only way you can see them is to 8 get permission from the director of the archives. 9 Who at that time was Ms. Marie Bankhead-Owens. And 10 I said, well, when does she come in. They said, 11 well, she comes in, she will be in Thursday 12 afternoon. This is Wednesday morning. 13 She will be in Thursday afternoon. I 14 said, well, how will I know that she is here. She 15 says, well, you will know. Everyone knows when 16 Ms. Owens arrives. 17 So I waited. And the next afternoon, 18 indeed, the whole building took on a different 19 atmosphere. I said Ms. Owens must be here. 20 And I went up to her office and I 21 told her secretary, I want to have a word with 22 Ms. Owens. And she said, well, she's in there, go 23 in. 24 And I went in, and as I went in I got 25 another lesson. The secretary did not close the GRUTTER -vs- BOLLINGER, ET AL 23 1 door behind me, and when I got in to speak to 2 Ms. Owens she did not ask me to sit down. I said 3 this is another mine field I'm in. 4 And she said, what can I do for you, 5 I told her I wanted to see Governor Winston's 6 papers. And she said certainly you can see the 7 Winston papers and anything else that you want. 8 You're free to see them, just let me know and I'll 9 be glad to facilitate your efforts. 10 I said, well, I do appreciate that 11 very much, I'm still standing. And she said, they 12 tell me that there's a Harvard nigger in the 13 building, have you seen him. 14 And the secretary whose door was open 15 and she was listening to the conversation, she said, 16 that's him, Ms. Owens, that's him. She said, are 17 you the Harvard nigger? 18 She said, I had no idea. She said, 19 you got right nice manners, why don't you sit down. 20 My first invitation to have a seat. 21 She said, where were you born and 22 raised, I said Oklahoma. She said, no, no, that's 23 not where you got those nice manners. I wanted to 24 tell her that my mother taught me, I was discreet 25 enough to let her explore the matter. GRUTTER -vs- BOLLINGER, ET AL 24 1 She said, where did you go to school, 2 I said, Rentiesville, Oklahoma, Tulsa, Oklahoma. 3 She said, no, no, I don't mean that. Where did you 4 go to school out of the state. And I said I went to 5 school at Fisk University in Nashville, Tennessee. 6 She said that's it, that's where you 7 learned those manners. Nice good old confederate 8 state. And I let that pass. And she then went on 9 to tell me about the south and about manners and so 10 forth. 11 And she didn't undertake to tell me 12 why she treated me like that, except that when she 13 told me of an incident where she had a relationship 14 with a black woman, wife of the president of 15 Tuskegee. 16 She said, I called her Ms. Moten. 17 She said, but I wouldn't call you--it would be 18 beyond the realm of possibility for me to refer to 19 you as mister, do you understand that? I'm not 20 going to ever call you mister, I don't call black 21 men mister. 22 I'll call you doctor, reverend, 23 professor, whatever comes to mind, except for 24 mister. You don't deserve that much respect. I 25 said, well, as you will. GRUTTER -vs- BOLLINGER, ET AL 25 1 And the problem with her after that 2 was that she wanted to talk so much that she took up 3 so much of my time and I was busy. And she wanted 4 to talk to me about the race thing. 5 And I began then to think about what 6 race really meant to her and to people like her. 7 And I could not escape the conclusion that the only 8 thing that race meant to her was, well, the only 9 thing that race meant to these other people that I 10 talked about. 11 Is that they wanted to be certain 12 that there was maintained a distant, not laterally 13 but vertically. A distance where they were 14 somewhere above a cut above, that's very essential, 15 very, very essential. 16 And whether it's in a library or 17 whether it's in a hotel or rather it's in school or 18 wherever, this distance, this vertical distance must 19 be maintained this superior position. The position 20 of advantage must be maintained. 21 And I came to the conclusion that the 22 maintenance of this was so important that they 23 didn't mind being inconsistent. They didn't mind 24 being improvisational, as long as that gave them 25 this vertical advantage where they were somewhere GRUTTER -vs- BOLLINGER, ET AL 26 1 above and somewhere beyond. 2 And that to me was a revelation just 3 to come to that conclusion and to reach the view 4 that these people were groping for a way to live and 5 to co-exist with other people. 6 And the only way they could do it 7 comfortably was to have this distance. To have this 8 sense of self importance and of superiority, if you 9 will. 10 And I have always had difficulty in 11 squaring that with the so-called American way of 12 living, practicing, doing things. And not only was 13 this improvisation was inconsistent and incongruous 14 too, with what we are taught to be the American way 15 of the practice of equality on the one hand, and 16 human relations on the other as well. 17 This came to me another way when I 18 was quite young and just starting my career, when 19 during the time of the war. And the war came and I 20 was teaching in Raleigh, North Carolina. 21 And, of course, the incident at 22 Pearl Harbor what happened there was on the Navy 23 vessels, put the Navy in a very desperate position. 24 And the men who were in their offices on land, were 25 rushed out to pick up the pieces as they were to GRUTTER -vs- BOLLINGER, ET AL 27 1 serve in active duty in the Navy. 2 And this left great vacancies on land 3 among which was the need for large numbers of petty 4 officers, people to man the office and whatnot. And 5 they sent out a desperate call for volunteers to 6 come and serve in the Navy. 7 So, I decided to volunteer, this is 8 January 1943, I decided to volunteer. And I went 9 down to the Naval Recruiting Station and offered my 10 services. 11 He said, what can you do, the 12 recruiting officer, what can you do. I said, you 13 need people to run offices, he said yes, yes. I 14 said, well, I can do that. 15 I said I ran the office, I ran the 16 library at Fisk University for four years, that's 17 the way I worked my way through college. He said, 18 well, what did that mean. It meant that I could 19 type and do shorthand and stuff like that. 20 I said I have three gold medals in 21 typing. And he said, you do? I said, yes, and I do 22 135 words a minute at shorthand. I said I can 23 operate various kinds of simple machines, business 24 machines. And I have a Ph.D from Harvard. 25 He said, you have everything but GRUTTER -vs- BOLLINGER, ET AL 28 1 color. I said, oh, he said, yes. I said, well, I 2 thought there was an emergency, I apologize for 3 taking up your time. And I bid him good day. 4 And I left with a solemn resolve if I 5 may say that, that I wasn't going to the army under 6 any conditions, there was no emergency. That they 7 were looking around for people of certain color, not 8 of people of certain ability. And I wasn't going to 9 fight on their terms. 10 The terms that my brother experienced 11 as a graduate of Fisk and principal of a high school 12 in Oklahoma. The sergeant told him when he was 13 drafted and went in to the Army, that I will spend 14 my life being certain that you don't do anything 15 more edifying than peeling potatoes. 16 Well, I wasn't going to peel 17 potatoes, I wasn't going into the Army on the terms 18 of that sergeant or anyone else and I didn't. And I 19 stand before you not ashamed of the fact that I did 20 not serve my country on my country's terms in 21 World War II or any war. 22 Q. How did that experience affect your brother? 23 A. How is that? 24 Q. How did that experience affect your brother? 25 A. It destroyed him, and he died right after the war. GRUTTER -vs- BOLLINGER, ET AL 29 1 Never recovered from the inhuman treatment that he 2 received, not only at the hands of that sergeant, 3 but at the hands of various others. He was a broken 4 man and died in Veteran's Hospital Brooklyn, 5 Virginia in 1947. 6 Q. Professor Franklin, how did there come to be an all 7 black town in the middle of Oklahoma? 8 A. Well, there were not an all black town, not one all 9 black town, but 28 black towns in Oklahoma and 10 Kansas in the period--in the 19th century and period 11 before World War 1. Twenty-eight of these towns 12 established. 13 They were, for the most part, the 14 result of the migration of blacks out of so-called 15 cotton kingdom, that is out of areas extending from 16 Georgia over to Louisiana. 17 They migrated there with the hope of 18 escaping the rigors of the deep south, and the 19 treatment which they received at the hands of the 20 leaders in the cotton kingdom. 21 And they went to these communities, 22 or they founded these communities with hope that 23 they could somehow break the ties that caused them 24 so much distress and humiliation when they 25 associated with whites. They wanted to be GRUTTER -vs- BOLLINGER, ET AL 30 1 independent, they wanted to be self respecting and 2 so forth. 3 An example is when my father decided 4 that he had to leave Ardmore, where he was a young 5 lawyer and practicing there and move to an all black 6 town. He had gone to Shreveport, Louisiana to 7 represent a client in a matter. 8 And he went over there with his 9 client, and when they called the case my father 10 stood. The judge said, what are you standing up 11 for, and he said I'm representing my client in this 12 case. And the judge shook his head and said, oh no, 13 you don't represent anyone in my court. And he 14 called him the "N" word, and he said, now you get 15 out. 16 And so that's why he not only came 17 back to Ardmore, but said, you know, I can't stand 18 this, I'm going to go where at least I'll enjoy some 19 self respect. I'm going to find a place where I 20 don't have to rub up against this everyday. 21 And that's why he and my mother went 22 to Rentiesville. But Rentiesville was so small, it 23 was not really viable as a community, as a community 24 to support a man who was a lawyer in a small town 25 where it was not much litigation anyway. And what GRUTTER -vs- BOLLINGER, ET AL 31 1 there was, it was not for profit, shall we say. 2 Q. I'm familiar with that phenomenon actually. 3 A. Yes. I think that might be why I decided not to 4 pursue law as I intended when I went to college, I 5 wanted to go into history. It's no defamation of 6 the legal profession intended. 7 Q. How is it, in fact, that your mother came to be a 8 teacher and your father came to be a lawyer? 9 A. Well, my mother was born in West Tennessee in the 10 village of Gayid, not far from Brownsville, 11 Tennessee. The daughter of a very enterprising 12 farmer who elected to send his daughter and later 13 some other daughters to college. 14 So that they could come back and 15 train the young people. There was a scarcity, this 16 was in the late 19th century, there was a scarcity 17 to train leaders and teachers and so forth in the 18 black community. 19 So, she was sent away to Roger 20 Williams University in Nashville, Tennessee to study 21 and to teach training and come back to Gayid and 22 teach, and that's what she did. 23 But, of course, in Nashville she had 24 met my father who had come out there from Oklahoma 25 and they fell in love with each other. And that led GRUTTER -vs- BOLLINGER, ET AL 32 1 to their marriage and going to Oklahoma to live both 2 of them. My father and my mother. 3 Q. Where did your father go to law school? 4 A. He did not go to law school. My father read law and 5 studied by correspondence and took the course, took 6 the examination in 1907 and passed it. He was 7 always somewhat distressed that he was only number 8 two in the bar examination. The first being a 9 graduate of the University of Michigan Law School. 10 And he practiced law from 1907 to 1960. 11 Q. Tell us what it was like to be at Fisk and at 12 Harvard when you were there? 13 A. Well, Fisk was like you say, in the old south, the 14 old confederate south and that's where I learned it 15 very early it was the confederate south. I had 16 grown up in a very interesting racial climate in 17 Oklahoma. 18 There had been the riot, which the 19 white people of Tulsa were in absolute complete 20 denial up until 1996, this riot was in 1921. But in 21 that period between 1921, the time of the riot and 22 1931 when I graduated from high school, there was a 23 very interesting racial relationship, especially 24 after the riot. 25 Where we were free to do as we GRUTTER -vs- BOLLINGER, ET AL 33 1 pleased, more or less. No one wanted to start, no 2 one wanted to have another riot. And the white 3 people wouldn't even admit that there had been a 4 riot. 5 Large number of whites including the 6 present mayor of Tulsa, and she told me just last 7 year that she did not know about a riot until just 8 very recently. 9 Meanwhile we enjoyed life and with 10 absence of this stress, we enjoyed our inferior 11 position without any intimidation. We went to these 12 inferior schools and nobody said much about them. 13 We got what we lost, in subject 14 matter we gained in terms of self respect and that 15 sort of things. It was pounded into us by our 16 teachers. 17 When I got to Fisk in the old south, 18 this is Ms. Owens' confederate south. I found that 19 the atmosphere was much more oppressive. And I was 20 told that almost immediately. 21 I went downtown, when I say downtown, 22 I mean in the business part of Nashville, the white 23 part of Nashville downtown when I was a freshman, 24 indeed, within the months. 25 I was 16 years old and I was far from GRUTTER -vs- BOLLINGER, ET AL 34 1 home. Oklahoma to Tennessee in those days was very 2 far. And I went downtown to do some shopping, just 3 to look around more than anything else with some 4 other classmates. 5 And we started back and I went into 6 the place where you bought a ticket to get on the 7 streetcar. And I had only a $20 bill, that was 8 almost the last $20 bill I had in college. 9 But I presented it to the man with 10 some apologies, I said, I'm sorry this is all I 11 have. The streetcar fare was 15 cents, this is all 12 I have and I am very sorry and you can give me the 13 change in one dollar bills or whatever you wanted 14 to. 15 And he rose out of his seat, I 16 thought he was going to jump through the booth. And 17 he said, you don't know little nigger can tell me 18 how to make change. I didn't know, I thought I was 19 being very accommodating, very courteous. 20 And then he took the time to count 21 out the change to me in nickels and dimes and 22 quarters. Nineteen dollars and 85 cents in nickels 23 and dimes. 24 And he was right, I wouldn't try to 25 teach him or anyone else after that how to make GRUTTER -vs- BOLLINGER, ET AL 35 1 change, if that's what he thought I was doing. I 2 thought I was calling myself being accommodating. 3 And that tend to blight my whole college life. 4 I never went downtown Nashville many 5 times after that. But I never went without 6 remembering that problem, I was absolutely 7 terrified, if you can imagine. I was 16, I was 8 terrified by this man. 9 And it's a big contrast to the kind 10 of atmosphere which I grew up where everyone was 11 holding back and trying to be congenial and not talk 12 about the riot, which they came and bombed us and 13 burned us down and everything, and caused me to be 14 four years tardy in getting to Tulsa in the first 15 place. 16 That was all on the board now and I 17 was confronted with this strange kind of treatment 18 that I had never had before. And that really 19 clouded my whole college life. 20 That was at one end of my college 21 life. At the other end, my senior year when I was 22 applying for Harvard Graduate School, 19 years old. 23 And I had to take the scholastic aptitude test. 24 This is before the graduate records exam. The 25 scholastic aptitude test is one which I had to take. GRUTTER -vs- BOLLINGER, ET AL 36 1 And I went out to Vanderbilt 2 University, that's where you had to go to take it. 3 And I walked in that room and the man who came in, 4 the professor who came in, looked at me and said 5 what do you want. I said this is the room I have to 6 come to to take the scholastic aptitude test. 7 And he threw the test at me, I had to 8 catch it. That was not the best atmosphere in which 9 to try to perform on a test. 10 And I don't know what he did with the 11 test, but I didn't have much competence in his 12 sending it to where it was supposed to go. I don't 13 know what happened to it, perhaps he did send it in, 14 I don't know. But I was admitted to Harvard anyway. 15 I don't know what my score, I think 16 my score might have been zilch, it might have been 17 zero after that experience. 18 And as I walked away from that room 19 on the Vanderbilt campus, a black janitor he said, 20 were you sitting in that room, I said, yes. He 21 said, I have never seen a negro sitting down in any 22 rooms here. 23 He thought it was very strange. He 24 said, what were you doing, I said I was trying to 25 take this examination. And he was amazed and full GRUTTER -vs- BOLLINGER, ET AL 37 1 of wonder that that had happened. And I was full of 2 wonder too, and I was very relieved to get off of 3 that campus. 4 So, at the beginning, at the end of 5 my Nashville experience, I had these two very 6 unsavory experiences which affected my whole 7 attitude towards Nashville. 8 I was later, much later, the chairman 9 of the board, a trustee of Fisk University and been 10 going back regularly both as alumnus and as a board 11 member. But I have never felt comfortable there 12 because of that experience when I was there in my 13 teens. 14 But we had a marvelous time at Fisk, 15 because Fisk was whereas that all the students were 16 African Americans, the faculty was racially mixed. 17 And we learned there in that rather strange and, I 18 think, some ways unrealistic climate. 19 We learned there that white people 20 were just plain people, just ordinary white people, 21 no mystery about them. And the man who sent me to 22 Harvard turned out to be my best friend outside of 23 my family. The best person I ever had any 24 relationship with. 25 And this was a little oasis there, GRUTTER -vs- BOLLINGER, ET AL 38 1 where we didn't have any differences, no racial 2 differences of any kind. And where I remember so 3 well when President Roosevelt came to visit the 4 campus in 1934, I was a senior. 5 A student had been lynched, not a 6 student, I'm sorry. A young person living on the 7 Fisk property, the edge of the campus, had been 8 taken out and lynched the spring of 1934. And we 9 were, of course, very much exercised by that 10 experience. 11 And when we learned that the 12 president was coming to Fisk, the president of the 13 United States, students decided to bring him in on 14 the protest. To petition him to make a statement 15 about it. 16 Well, the president of Fisk was very 17 distressed about that and persuaded us not to do it. 18 And I was president of the student government at the 19 time, and he persuaded me not to do it. 20 But this was an experience too, which 21 I should have mentioned this coloring, my old 22 feeling about the town and so forth. 23 And we were called off from doing 24 that, that's another story of the president. The 25 president of Fisk said he would get us an GRUTTER -vs- BOLLINGER, ET AL 39 1 appointment with the president of the United States, 2 if we would just not badger him when he was on 3 campus. 4 One of the things that we did though 5 that spring, was to not only to entertain the 6 president of the United States, the Fisk class 7 singing and that sort of thing. But we welcomed the 8 whole community. 9 The president said he was only going 10 to stop at Andrew Jackson birth place, and Fisk 11 University. Well, white people in Nashville 12 couldn't imagine the president of the United States 13 would come to Nashville and go to a black school, 14 and that's all he would do in Nashville. They 15 couldn't believe it. 16 And we therefore, arranged bleachers 17 and so forth for everyone who wanted to come and see 18 the president of the United States. And as 19 president of the student government, I was sort of 20 officiating around and people doing what I told 21 them, so to speak. 22 And one white man came up to me and 23 said, where are the white people sitting, I said 24 anywhere. He said, anywhere, and I said yes. And 25 he was very, I don't want to convey that he was GRUTTER -vs- BOLLINGER, ET AL 40 1 hostile, he was not. 2 He said, you know, this is very 3 strange. He said, I voted democratic ticket every 4 time in my life. He said, but if Franklin Roosevelt 5 doesn't think anymore of my vote than to come out 6 here to a place where I have to sit with black 7 people, he said I'll never vote the democratic 8 ticket again. 9 And he wasn't hostile, he was 10 bringing me in on the resolution that he had taken. 11 He just couldn't do that. Democrats were going to 12 do that, then he had to turn his back on them. 13 And that put another cast on my view 14 of this whole thing. I was utterly and completely 15 confused by these different attitudes that I saw. 16 That I continued to see and I continue to see even 17 in my later years. 18 I sometimes think that if I'm going 19 to understand this, I need to be awarded another 20 degree. It's a conundrum, it's difficult to 21 understand. 22 Well, all of these experiences 23 happened since I--I won't belabor, I won't burden 24 you with anything since then. But the experiences 25 that I've had since I've been 80 years old, and that GRUTTER -vs- BOLLINGER, ET AL 41 1 wasn't yesterday you see. 2 But I've learned not to be too 3 surprised, there have been lessons to me and I have 4 learned more lessons. 5 I remember the night before I was to 6 receive the medal, the Presidential Medal of 7 Freedom, I gave a dinner party to celebrate that in 8 Washington at the club which I belonged there. 9 And I invited some friends to come in 10 to have dinner with me that evening, and some of 11 them had not been to the club before and it was a 12 very wealthy place, and I was taking them on a tour 13 of the club. 14 And we got up in the library, we were 15 in the library and I remembered I had two more 16 guests that hadn't arrived. So, I would go down the 17 grand staircase to the lobby, to see if the guests 18 were there. 19 And as I came into the lobby, a white 20 woman walked up to me and said, listen, go and get 21 my coat. She gave me her coat check, she offered me 22 her coat check. 23 I said, madam, if you will present 24 that coat check to the uniformed attendant at the 25 club, and all of the attendants here are uniformed, GRUTTER -vs- BOLLINGER, ET AL 42 1 perhaps you will get your coat. And I walked away, 2 I don't know whether she got her coat. I didn't 3 wait to see whether she did. 4 I thought that she might meditate on 5 that for a while and perhaps come to some conclusion 6 that she had reached out to a person who, in her 7 view, was there to serve her. Why otherwise should 8 I have been there if I wasn't there to serve her. 9 She could have looked on the wall and 10 seen my pictures the Man Of The Year the previous 11 year, but she didn't. I guess she didn't. But 12 maybe she thought that the Man Of The Year was also 13 a porter, I don't know. 14 Q. What was Harvard like when you were there? 15 A. What's that? 16 Q. What was Harvard like when you were there? 17 A. Well, it was the great university that it is, and I 18 didn't run into many racial incidents at Harvard. I 19 know that it was--there was so few of us there, so 20 few blacks there that I think we were inconspicuous 21 to the point of being almost invisible. 22 I remember that when I was taking a 23 course in economics, in this world economic history, 24 one of the very distinguished people in world 25 economic history, counsels, advisors, presidents of GRUTTER -vs- BOLLINGER, ET AL 43 1 that sort of thing. 2 He told a so-called Negro joke in 3 class and I'm sitting there, but he was oblivious to 4 the fact that I might have been offended or that I 5 was even there. It just weren't enough of us there 6 to make any difference, no critical mass or 7 anything. He didn't see me. 8 You got one person and 35 or 40 9 people, I guess, you can't be seen I don't care how 10 dark you are. Your consciousness is not extended to 11 that point. 12 I think that the thing that I 13 experienced at Harvard, most searing experience, it 14 was not the anti--not the race, not racism but 15 anti-Semitism. And that was really a remarkable 16 revelation to me. 17 I didn't know what anti-Semitism was, 18 I had been so busy trying to wear my way through my 19 problems, life problems that I had before me, that I 20 did not know that other people had problems. 21 So, when I was a member of the 22 Henry Adams Club, which is a club of American 23 history students at Harvard. The time came for us 24 to have officers, to nominate officers for the 25 following year, we had a nominating committee. GRUTTER -vs- BOLLINGER, ET AL 44 1 And I'm so naive that I did not 2 realize that when was I proposed for the nominating 3 committee, number one person on the nominating 4 committee, the first person proposed. 5 I didn't know that I was to be 6 certain that I wasn't nominated for anything. So, 7 when the nominating committee met and the chair, I 8 was not the chair, the chair said, well, for whom 9 should we have for president. 10 And I named the person who I thought 11 that should have the president. I said, he's an 12 outstanding student, best student in our group. And 13 I think he should be in. He's faithful, active in 14 the club, he should be the president of the club. 15 Dead silence all the way around, 16 absolute silence. I don't know what's going on, 17 what's the matter. And then one of the students 18 spoke up and said, well, he doesn't have all of the 19 attributes of a Jew. But he's still a Jew. 20 I'm so speechless, I don't even know 21 what they're talking about. And I finally was able 22 to indicate to him, I don't know what these 23 attributes are that the students have, what are 24 they. 25 Well, you know, but I did not know. GRUTTER -vs- BOLLINGER, ET AL 45 1 And I was speaking honestly, I did not know. I 2 never heard that before. And so I really will have 3 to go back--it struck me as so untoward, so un 4 everything, so unAmerican that I don't even remember 5 what happened. 6 I can only say that that person when 7 all of these others fell by the way side, most of 8 them didn't even get their degrees, this person 9 became the most distinguished fellow in the history 10 of Harvard University. 11 He thought there were a few things, 12 and I was proud that we remained friends for 60 13 years. 14 But the other thing about Harvard was 15 that the climate was such that I was able to 16 understand immediately what there was about it that 17 caused so many young people to become full of 18 themselves and take themselves more seriously than I 19 thought they should. 20 As I said, I didn't have any 21 problems, I didn't have any difficulty with academic 22 problems at all. I had some financial problems, but 23 those were solved after the first year with 24 fellowships and so forth. 25 And when I finished my exams and I GRUTTER -vs- BOLLINGER, ET AL 46 1 was asked by my major professor if I wanted any 2 further fellowships, and I said no, I just want to 3 leave, I want to get out of here. The atmosphere 4 was so stifling to me and I wanted to leave and 5 become myself again. 6 The pretensions were so great, and 7 the effort to be like professors was so great that I 8 thought it was no place for me, so I left. And I 9 was glad to get a job and write my dissertation when 10 I was working. I was writing on their money, on 11 their fellowship money. 12 I was happier and got more 13 experience, and learned more and was out of that 14 climate that--you see I began to realize that it was 15 something wrong with that climate, it was 16 anti-Semitic. So, probably I didn't see it because 17 it was anti-black too, much more than I really could 18 feel or experience. 19 It gave me, it put me on notice that 20 if Jews were special I must be very special. In an 21 unsavory and unattractive way. 22 Q. You said something earlier, Professor Franklin, that 23 I didn't understand when we first talked about the 24 riots in Tulsa delayed your arrival in that city by 25 four years? GRUTTER -vs- BOLLINGER, ET AL 47 1 A. Well, my father had gone to Tulsa the year before to 2 start a new life, to make a living. And he did 3 well, he was prospering and everything. So much so 4 that he said that we could come up at the end of the 5 school year, he would come and get us and everything 6 at the end of the school year and we'll be together 7 again. 8 And I so was very anxious because I 9 was six and going to be with my daddy again. And we 10 were packed and waiting for him to come. And he was 11 coming on the point of day the first of June. We 12 waited and he didn't come. The next day he didn't 13 come. The next day he didn't come. 14 There was no means of communication. 15 There was no telephone, there was not a telephone in 16 Rentiesville. There weren't many telephones 17 anywhere in those days. 18 Finally my mother read in the 19 newspaper that had been dropped off at Rentiesville 20 from Muskogee, down in Muskogee, the Muskogee Daily 21 News, that there had been a riot down in Tulsa. And 22 there were many casualties. 23 And then she didn't know whether her 24 husband, our father, was living or dead and didn't 25 know that for several more days. And finally we got GRUTTER -vs- BOLLINGER, ET AL 48 1 a note from him. 2 When the riot broke he stepped out of 3 his place, his office, to see what was going on and 4 he was seized, taken to a place of detention. Kept 5 for several days there. 6 When he got out everything that he 7 had had been destroyed. The house that he rented 8 for us had been burned to the ground. His office 9 had been destroyed, the building had been wrecked. 10 He couldn't find anything, any of his possessions 11 anywhere. 12 And that kept him really from writing 13 us or communicating with us for some days. And 14 because when he could get around, when he did get 15 around to communicating with us, he couldn't come 16 because by that time he had established his law 17 offices in a tent. There was no buildings in the 18 black community, no building at all. 19 He established his law office in a 20 tent, he stayed there at night. And he was busy 21 with his clients suing the insurance companies, 22 suing the city, suing the mayor, everyone in sight 23 for some compensation, reimbursement and so forth. 24 So he was so busy he couldn't come. 25 And he finally was able to--the city GRUTTER -vs- BOLLINGER, ET AL 49 1 had passed an ordinance saying that there could be 2 no reconstruction in that section of town unless it 3 was a fireproof construction. 4 Well, they didn't have any money to 5 build fireproof. My father advised his clients to 6 build with orange crates, if necessary, build with 7 anything. And they, of course, were arrested for 8 violating the city ordinance. 9 And he took that case to the state 10 supreme court and it was declared, the ordinance was 11 declared unconstitutional. So we had to wait four 12 more years and then we went out to Tulsa in 1925. 13 And that's when I found what Tulsa 14 was like, and what life was like there, how 15 different it was, how wonderful it was in so many 16 ways. 17 But this climate that I'm talking 18 about, which is kind of an artificial climate, but 19 one that was maintained and that gave us a sense of 20 freedom and of well-being that it was probably not 21 quite true. 22 But it was enough for us to feel that 23 we could go where we wanted to, and do what we 24 wanted to do and be what we wanted to and without 25 any serious consequences, or adverse consequences, GRUTTER -vs- BOLLINGER, ET AL 50 1 and we did. 2 But, of course, the town couldn't 3 have been more segregated or more Jim Crowe than it 4 was. And my parents, of course, would not and did 5 not ever demean themselves by accepting segregation 6 of any sort. 7 When I went to the courtroom with my 8 father, if the blacks were not segregated by law but 9 by custom they were, he never let me sit over there. 10 If it was a jury trial and the jury 11 was sitting, then he brought me to the bar and I sat 12 with him at the bar. If not, he said you can sit 13 you can sit over there where the jury is supposed to 14 sit. 15 When the Chicago Symphony Opera came 16 to town my mother was a musician she loved the 17 music, she wouldn't go to the opera because it was 18 segregated. 19 And she said, well, if you want--I 20 said, I want to see the opera. She said, well, it's 21 segregated we don't go to anything like that, but if 22 you want to demean yourself, if you want sell your 23 dignity that way, go ahead. 24 And I went with music teacher and so 25 forth, I went. I told this story in a PBS GRUTTER -vs- BOLLINGER, ET AL 51 1 documentary and the director of the Metropolitan 2 Opera in New York saw it and wrote to me, and said 3 I'm sorry you learned a little opera under those 4 conditions, but I'm glad you've learned to love it. 5 From now on you will never have to do 6 that again, you can be my guest in my box at the 7 Metropolitan whenever you want to. And Joseph--and 8 I have become very good friends because I go to the 9 opera as his guest. 10 But they wouldn't tolerate any kind 11 of segregation. So, I grew up in a household that 12 was hostile to the practices of racism. And I 13 learned, I learned what they were, although--I 14 learned what that was, although I didn't practice it 15 as a youngster. 16 I would have to wait and learn what 17 the adversities were before I would be able to 18 practice it. As I was able to practice it after I 19 went to college. 20 Q. You were able to practice? 21 A. To abstain from going into segregated places. As a 22 child I did not, as an adult I did. It was 23 something that I was forced to like during the 24 research and that's all. 25 Q. You went back to Fisk to teach, is that right? GRUTTER -vs- BOLLINGER, ET AL 52 1 A. Uh-huh. To Fisk? 2 Q. Yes. 3 A. Yes, I went back only for one year to teach. I 4 taught there in 1936, '37. Just an interim while I 5 was in graduate school, I went back to teaching at 6 my friend's place, the man who sent me to Harvard, 7 he was going away. 8 And by that time I had a master's 9 degree, and although I was a very, very junior 10 teacher at Fisk, they tolerated me for one year. 11 And I taught there and then I went back to graduate 12 school and finished my Ph.D. 13 But I stayed out of downtown 14 Nashville for the most part when I was back there 15 for that one year. 16 Q. What were your other teaching jobs, and how did race 17 become a factor? 18 A. Well, I taught at Fisk, St. Augustus college in 19 Raleigh. Then I taught at North Carolina College 20 for Negros in Durham. 21 It was when my luck ran out in 22 Raleigh with the draft board, and they were about to 23 draft me that I changed colleges. 24 And I called Dr. Sheperd, the founder 25 and the current president of North Carolina College GRUTTER -vs- BOLLINGER, ET AL 53 1 for Negros. And this is after I was not able to do 2 anything else in Raleigh, and after the president of 3 St. Augustus College told me he would not write a 4 letter to my draft board. 5 He said because he thought the Army 6 would be good for me. And it would teach me to hang 7 up my clothes, to be neat. And I told him my mother 8 had done that already. And I got up and left. 9 I called the president of North 10 Carolina College in Durham, North Carolina for 11 Negros in Durham. I said is that offer that you 12 made to me last year still standing, and he said, of 13 course. 14 I said I'll come to your college, 15 I'll come over and teach under one condition, he 16 said what's that. I said, you're on the Draft 17 Appeal Board, aren't you? He said, yes. I said 18 that you will keep me out of the Army. 19 He said, well, it would be a disaster 20 for the United States for you to go into the Army. 21 He said, I will be glad to keep you out, maybe we 22 can win the war then. So I said I'll come right 23 over. So I went over there and I spent four years 24 there. 25 Then I went to Howard University, at GRUTTER -vs- BOLLINGER, ET AL 54 1 that time I had published several books and I went 2 to Howard University as a full professor. I was 26 3 years--I'm sorry, 32 years old. 4 And then I stayed there nine years 5 and I went to Brooklyn College where I went as 6 chairman of the department and professor, it was 7 1956. 8 And it was there that I got some more 9 experiences in this life of what it means. I 10 learned a great deal about northern racism. 11 Brooklyn College is located in a 12 wonderful residential section of Brooklyn. And I 13 was living in an apartment, my wife and my son and I 14 were living in an apartment up on east--when I saw 15 all of these lovely houses there down there, and I 16 said, well, it must be wonderful to walk to work. 17 And so I began to look for a house. 18 And no real estate dealer in Brooklyn 19 would show me a house. I'd read in the New York 20 Times here is this house for sale, then I would go 21 and see the real estate dealer who advertised the 22 house, it wasn't available for me. 23 And I worked at that for several 24 months and I wasn't getting anywhere. I wasn't 25 seeing a house, I couldn't even see a house. GRUTTER -vs- BOLLINGER, ET AL 55 1 And then I concluded that I wasn't 2 going do see a house through the real estate 3 dealers, and I decided the next level of search 4 would be to find houses offered for sale by the 5 owners. 6 And I would confront the person who 7 was the sales person who would be the owner. And I 8 began to see some houses, but not many. 9 And as I went into the homes that 10 were for sale by the owner, I remember one instance 11 we came out of this house, he told us that it was 12 just about concluded the sale. But if that fell 13 through, he would be glad to call me and took my 14 telephone number. I didn't hear from him. 15 But I came out of that house, 16 apparently the word had got through that we were 17 looking for a house. This black couple was looking 18 for a house, and every white person in the block was 19 out in front of their house. All the way down the 20 block, to watch to see this black couple come out. 21 It was sort of sending a message, I assume. 22 I thought I could read the message, 23 it said that they didn't want me in that block. 24 Well, they couldn't get me anyway, because the man 25 didn't call. GRUTTER -vs- BOLLINGER, ET AL 56 1 We finally found one house though 2 that sounded interesting and we called, it was a 3 Saturday afternoon, we called this owner and this 4 owner said, what are you doing and I said, well, 5 we're not anything that we can stop doing--that we 6 can't stop doing. 7 He said, well, why don't you come 8 down here and see this house. And went down to this 9 house and we looked at it, and we were very 10 interested in the house as we approached it. 11 We parked and we rang the bell and 12 the man came to the door. He and someone else was 13 sitting in the kitchen, you could see it, this 14 living room, dining room, kitchen, you could see 15 that. 16 And he said just a minute, and he 17 went back and he took a drink. And he came back, he 18 said you want to see the house, you're the one who 19 called, and I said, yes. 20 He said come in. He said, this is 21 the living room, I said I thought that was the 22 living room. I didn't know, but I thought that. 23 Then I attributed his change in 24 attitude to the drink that he had taken, that that 25 might be a misreading. GRUTTER -vs- BOLLINGER, ET AL 57 1 But by the time we got past the 2 living room and into the dining room, he began to 3 push his house. He began telling me how good it was 4 and that how much money he had put into it, and that 5 I might be very pleased with it. 6 And he said, how do you like this, I 7 said it is all right, I like it. He said, you know 8 how much money I put into this basement. And then 9 he took me upstairs, me and my wife and my son 10 upstairs. 11 And then he finished showing me the 12 house, he was pushing the house on me. So I told 13 him that I would let him know. He called me the 14 next week and said, what about the house, you want 15 it? 16 I said, I think so, but I've got to 17 go away to see my father, he's not well. He said, 18 when are you coming back, I said I'll be back by the 19 first of December, we'll be back soon. 20 He said, look, if you want this house 21 I'll take it off the market now, I'll wait for you. 22 I said, well, I think I want it, he said I'll take 23 it off, I want you to have it. 24 And so I came back and I told him I 25 thought I would take it. So, we signed the contact, GRUTTER -vs- BOLLINGER, ET AL 58 1 my lawyer was in on the deal, and my lawyer, my 2 Brooklyn lawyer. 3 And he said, well, how we going to 4 pay for this house, he said, well, we've got to find 5 the money. And he said, do you have an insurance, I 6 said yes, and I told him the insurance company. 7 He said, well, your problems are 8 over. He said, they had set aside several scores of 9 millions of dollars for their own customers, their 10 own policy holders. 11 He said, what's your policy, I got it 12 out for him. How much was it, $20,000. He said, 13 what's the name of your insurance agent, I told him. 14 So, the next day I got a call from my insurance 15 agent. 16 He said, now I don't want you to get 17 a misunderstanding, we have done a lot for you 18 people. I said, what are you talking about. He 19 said, well, you want to borrow money to buy a house, 20 I said yes. And you've got lots of money for your 21 policy holders. 22 He said, it was not really for 23 everybody. He said you want to buy a house on 24 New York Avenue, I said yes, 1885, he said that's 25 the wrong block. GRUTTER -vs- BOLLINGER, ET AL 59 1 He said, I can't lend you money to 2 buy a house that far down because you're leaping 3 over a white neighborhood going into this other 4 neighborhood, he said, that's too far. He said you 5 have to take it neighborhood by neighborhood. 6 I said, well, I want to live in that 7 neighborhood. He said, we can't lend money for 8 that. I said, well, what's this money for that 9 you've got. 10 He said it's for our customers, but 11 they have to conform to the pattern of living that 12 we want them to conform to. I said, so I can't buy 13 in that block, that area, because I'm black, he said 14 that right. 15 He said, but I'll get the money for 16 you, I said from where, he said another company I 17 can get them. I said well, then that's the company 18 that I should be insured by. 19 And I said and as of now, you can 20 consider me not your customer anymore. And I turned 21 him down. I turned his offer to get the insurance 22 company to get the money for me. 23 And there I was back where I started. 24 I went to my lawyer, Murray Gross, I said Murray, I 25 still don't have the money, this man won't let me GRUTTER -vs- BOLLINGER, ET AL 60 1 have money from this insurance company and I 2 cancelled my $20,000 insurance with him. 3 And we have to start over. He said, 4 well there's banks, we'll get it from the bank. And 5 he told me the full story of this when I was about 6 to leave Brooklyn for Chicago. 7 He pulled out the folder of requests 8 that he made to New York banks. Not one bank in 9 New York would let me have the money, not one. This 10 included the bank in Harlem, it was a front for a 11 downtown bank anyway. 12 So there I am with no bank to lend me 13 money. And then he told me then how his father was 14 on the board of the South Brooklyn & Savings Bank 15 and he got the money through his father. That's the 16 only way I got money to buy that home. 17 I was so determined to have it and I 18 was determined to have it by the time the insurance 19 company turned me down, that he then decided that he 20 would help me get the money, and he did from the 21 bank on which his father served as a board member. 22 That was quite an experience for me. 23 In the community where I had been the 24 favorite, my picture was on the front page of the 25 New York Times when I went to Brooklyn. It was a GRUTTER -vs- BOLLINGER, ET AL 61 1 spectacular historical appointment, an African 2 American the chair of the department at Brooklyn 3 College of the City University, that's a first. 4 But although I could teach their 5 children, I could not live among them. That's what 6 the message was. And I felt that perhaps I was like 7 the barber who could cut their hair, but could not 8 belong to their church. Or the maid who kept their 9 children, but could not sit down to eat at the table 10 with them. 11 I didn't know. This is a strange 12 kind of treatment of a person who do they entrusted 13 their young people to me. So that when I moved in I 14 felt that I was moving among enemies. And I was. 15 The man next door would not move his 16 car so that the moving van could come into the curb 17 by the house. It had to sit out in the middle of 18 the street and take our belongings out of the van. 19 It took hours, tied up traffic and 20 everything but he didn't care. I got anonymous 21 calls from people that I knew that they hated us, 22 they lived in the same block. Telling me things 23 about myself, telling me I thought I was more than I 24 was. 25 One time we went out, my son and I GRUTTER -vs- BOLLINGER, ET AL 62 1 went out to paint the picket fence in front of our 2 house, apparently the word got around in the 3 neighborhood up and down in the block that we were 4 there, not to destroy the neighborhood, but to 5 improve it I suppose they might have said. It was a 6 half gallon of paint to put on a picket fence. 7 But they all came and stood and 8 looked across the street. Just looked, didn't say a 9 word. The silent treatment they gave me. 10 And it was the end of my wife's 11 career because they began to taunt my son who was 12 six years old. These are adults. Frightening him 13 when he would ride on his bicycle. 14 Telling him, aren't you afraid to be 15 here and that sort of thing. And he would come home 16 and tell us what they said. And my wife said, I 17 must be here for him. 18 So, she gave up her librarian career 19 and remained home until he went off to college. 20 Never set without him, never being without him. 21 Never letting him become a latch key kid, she was 22 there whenever he came home from school. 23 So it was my northern exposure to 24 racism was not better than my southern exposure. 25 Q. Was that different when you went to Chicago GRUTTER -vs- BOLLINGER, ET AL 63 1 subsequently? 2 A. What's that? 3 Q. Was that different? 4 A. It was largely different when I went to Chicago. By 5 that time I had become accustomed to walking to 6 working to work, you see. And so in Chicago I 7 wanted to walk to work. 8 But there the University of Chicago 9 controlled all the real estate in that area and they 10 secured the home for me. They were the intervenors, 11 sort to speak. 12 They knew that a certain professor 13 was putting his house up for sale, because he was 14 going to Vassar, as president of Vassar. And so 15 they said, if you like this house we will arrange it 16 so that you can get it. 17 And I liked it and we purchased it, 18 and it was that. And the second day we were there, 19 or maybe the same day we moved in, the youngsters in 20 the neighborhood learned that there was a youngster 21 in the neighborhood in the house, so they wanted to 22 know if they could come in and visit with him and so 23 forth. And they welcomed him. 24 We only had one incident, and that 25 was when my son who by this time was becoming fluent GRUTTER -vs- BOLLINGER, ET AL 64 1 in French. Belonged to the French Club which was 2 made up of adults and students. 3 And he had gone across the street 4 from our house to the home of one of the wives of a 5 professor in the English Department. 6 And the University of Chicago 7 policeman saw him coming out of this house and he 8 stopped him. And he said, what are you doing in 9 this neighborhood, why are you coming out of this 10 house. He said, I live across the street. And they 11 wanted to know what I did. 12 And then my son came into the house 13 out of breath and he said, the police, University 14 Police stopped me and wanted to know what I was 15 doing in the neighborhood. 16 And I called Edward--the president of 17 University of Chicago that moment. And told him 18 that the person who was patrolling that neighborhood 19 had stopped my son. 20 I said he cannot grow up being 21 stopped by the University of Chicago Police, I want 22 this stopped now. 23 He called the policeman in and 24 reprimanded him and issued an order to the police 25 department of the University, that they were not to GRUTTER -vs- BOLLINGER, ET AL 65 1 do this, not to accost young blacks in the 2 neighborhood because it was a presumption, it was 3 early profiling you see. 4 It was a presumption that something 5 was wrong if he was coming out of one of those 6 houses. And I said you can't do this, my son cannot 7 like that, we cannot live in this situation. And 8 that was stopped immediately. 9 That was the only experience that we 10 had that I would say untoward or adverse. And he 11 lived happily ever after that at that school and 12 went on to Stanford after that. 13 Q. Chicago is your last appointment before Duke, is 14 that right? 15 A. Yes, I retired from the University of Chicago in 16 1980, driven out by the weather. And retired to 17 Durham where I wanted to live. I was a fellow of 18 the National Humanity Center, I was a senior fellow 19 at the National Humanity Center. 20 And I was there writing the life of 21 George Washington Williams, one of my subjects. And 22 the second year there I was invited to be the Duke 23 professor at Duke University. 24 So, I didn't go from Chicago to Duke, 25 I went from Chicago to Durham to the National GRUTTER -vs- BOLLINGER, ET AL 66 1 Humanity Center, then I became a professor of the 2 Duke. Called out of retirement, I had no intention 3 of teaching anymore. 4 But those were eight or nine years of 5 the most delightful times of my life of teaching at 6 Duke. Both first and the second year. And then in 7 the law school I taught in the law school for seven 8 years, teaching American constitution. 9 Q. What made you like Duke so much? 10 A. Well, it was a different kind of experience, and I 11 was invited to be the James B. Duke professor. I 12 had had two chairs, one in this country and one in 13 England. And I was accustomed to chairs. 14 But Duke had never had an African 15 American sitting in a chair, named chair, and I 16 thought that it would be a good experience for Duke. 17 And that was one of the main reasons that I 18 accepted. And I think it was good experience for 19 Duke. And I hastily say that it was for me too. 20 I said this was some crowning 21 experience of my career, and a very packard one. It 22 was no unhappy experiences about that at Duke at 23 all. And they have been very good to me and paid me 24 homage that I could be paid, I think. 25 I have an honorary degree from Duke. GRUTTER -vs- BOLLINGER, ET AL 67 1 There's the John Hope Franklin Center for Africans 2 and African Americans documentation at Duke. And on 3 the 8th of February, they will open the John Hope 4 Franklin Center for Interdisciplinary and 5 International Studies, the whole building. 6 It will open on the 8th of February. 7 So I have no quarrel with Duke about what they do. 8 Q. I will say though that on the honorary degree 9 they're not really standing out a list of 10 institutions that you have degrees from, it's 11 probably easier to go through then the list of ones 12 that have? 13 A. I wouldn't say that. There are maybe a thousand 14 colleges and universities in that country, two or 15 three thousand, I have only 128 honorary degrees. 16 Q. Tell us about your scholarship, Dr. Franklin? 17 A. Well, you mean my public work, my writing? 18 Q. Yes. 19 A. I was very fortunate in picking a subject for my 20 doctorate dissertation, which at the end of the line 21 that is when I finished with it, my mentor at Howard 22 Professor Shaveying announced at my final 23 examination, said my dissertation was ready to be 24 published. He recommended that I publish it, that 25 it be published. GRUTTER -vs- BOLLINGER, ET AL 68 1 Mr. Crittenton the head of the 2 North Carolina Archives, the one who put me in a 3 separate room and so forth. Who was a Yale Ph.D in 4 history, by the way. And upon reading my 5 dissertation, asked if he could send it to the 6 University of North Carolina Press, he says it's 7 ready to be published. So he did and they published 8 it. They published it. 9 Its been published and republished 10 and reprinted. And the University of North Carolina 11 Press has even brought out a new edition on it the 12 last three or four years. That's at one end. 13 And then my second publication it was 14 off of one of my students. I was lecturing on the 15 Civil War at St. Augustus College and one my 16 students came up to me and said, you know, you're 17 talking about the Civil War and it reminds me that 18 we have a Civil War diary that's been in the family 19 since 19--he said since the end of the Civil War. 20 And would you like to see it and I said, yes. 21 And he brought it, he sent for it and 22 it came up, and I read it and it was so interesting. 23 It was a diary of a white man who at the age of 57 24 years old, wanted to go into the Army and he did. 25 He enlisted in the Union Army, but he was put in the GRUTTER -vs- BOLLINGER, ET AL 69 1 Infantry, you know, how long a 57 year old would 2 last in the Infantry. 3 And he was then transferred after 4 1864, he was transferred into the recruiting 5 section. And he was dispatched to recruit black 6 soldiers after the United States proclamation, to 7 recruit black soldiers. 8 And he kept an account of that. And 9 I then published that as a Civil War diary of 10 James T. Ayers. That's just been reprinted by the 11 Louisiana State University Press this year. 12 Then I began to work on the Militant 13 South. And I was in the middle of that when I was 14 asked if I would be interested in writing a history 15 about African Americans and I said no, I'm busy. 16 I'm busy doing this. 17 But the head of the college kept 18 nagging me and nagging me and finally I relented, 19 and agreed to write from Slavery To Freedom, The 20 History Of African Americans. That was 57 years 21 ago. 53 years ago, I'm sorry. 54 years ago. 22 And that, of course, has gone through 23 eight editions. And it's used widely. It's, I 24 guess, between three and four million copies are in 25 print. GRUTTER -vs- BOLLINGER, ET AL 70 1 And I then proceeded to do other 2 things, write out for other books. I wrote a book 3 at the University of Chicago on the subject of 4 Reconstruction After The Civil War. 5 The Militant South which I postponed 6 to write From Slavery To Freedom, the Harvard 7 University Press published it. 8 That's a very interesting angle. I'm 9 writing my autobiography now, and the only thing I'm 10 finding is the actual historians through that book 11 on the Militant South. Which is not about blacks at 12 all, it's about whites. 13 There was a feeling that maybe I was 14 not qualified to write about whites. And the reader 15 whom I know now who it was, reading it for the 16 Harvard University Press said that, I don't see why 17 you need a Negro view of the south. 18 But if you insist on having a Negro 19 view of the south, maybe Franklin is the best person 20 you can get to do it. That's in the review which he 21 submitted to the Harvard University Press, which I 22 later did receive. 23 And I said to the director of the 24 Press, I don't see no Negro view of the south, it's 25 a view of the south period. The director of the GRUTTER -vs- BOLLINGER, ET AL 71 1 Press said, we understand that, that's why we wanted 2 it and they published it. 3 Then I wrote a book on the 4 Emancipation of Proclamation from a textual study of 5 the Emancipation. Like Lincoln came to write it and 6 so forth. 7 And then I wrote a book, another book 8 on white southerners it's called Southern Odyssey 9 Travel of the Annabella North. Which I described 10 the addictions that southerners had to the north, it 11 was a real addiction. 12 So much so there were large numbers 13 of them in the north at the time of the Civil War. 14 And they ran home from the war, but the day the war 15 was over they began to come back. And that story is 16 a bit interesting in itself. 17 That book won some kind of prize from 18 the Southern History. And I don't know, you remind 19 me that I wrote that. I will be able to tell you 20 why I wrote it, but it goes on. 21 Q. Let me ask you about your experience recently as the 22 chair of the President's Initiative on Race? 23 A. Uh-huh. 24 Q. What was the initiative, or how did you become to be 25 involved in that? GRUTTER -vs- BOLLINGER, ET AL 72 1 A. Well, I can tell you what the initiative was. The 2 president decided very early in his administration 3 that we had to do something about the problem of 4 race in America. This is President Clinton. 5 He come to North Carolina when he was 6 running for president and asked if I would visit 7 with him and I said, yes. 8 And I met him and the vice president 9 candidate, the candidate for vice president and the 10 family all at the same time, they came to Durham. 11 And I met them all a week before the election in 12 1992. 13 And then shortly after he became 14 president, the next contact I had with the 15 administration was through the vice president who 16 said to me one day he said, you know, I want to know 17 something more about race too. 18 And I wonder if you would help me 19 understand it by providing the intellectual feed if 20 I will provide the other kind of feed. 21 He said, I propose to hold three 22 seminars at my house and then invite 25 or 30 people 23 to each one of those. And I would like for you to 24 meet these--these would be influential people. Some 25 would be members of the cabinet, some will be GRUTTER -vs- BOLLINGER, ET AL 73 1 members of Congress, some will be scholars and so 2 forth, and I did that for three consecutive weeks. 3 The vice president and Mrs. Gore. 4 And my next contact I think was with 5 the president, when he conferred on me the Medal of 6 Freedom. And he made a speech on me that day which 7 surprised me, I didn't know he knew that much about 8 me. This was 1995. 9 And he told stories about me, some of 10 which I shared with you, and I was really amazed. 11 But it was shortly after that, that he began to talk 12 to me about the Initiative of Race, which he had set 13 up in the White House already. 14 And it was through that initiative 15 that they began to develop programs of various parts 16 of the government for the immediate racial 17 situations in those departments and so forth. 18 And then finally, he decided he 19 wanted an advisory board to the Initiative, which 20 was staffed by people in the White House. 21 He wanted an advisory board that 22 would recommend to him, that would study the 23 situation and recommend to him some things that we 24 thought he ought to do. 25 And the board was created on the 13th GRUTTER -vs- BOLLINGER, ET AL 74 1 of June, 1997, announced, it was the day. And the 2 next day it was announced at the meeting--at the 3 commencement at the University of California 4 San Diego. 5 The president met with us the day 6 before, and he took us all out there in Air Force 7 One, and we were really part of the commencement 8 exercises back there at U of C San Diego. 9 And he made the announcement there, 10 had all of us to stand. Told what we were up to, 11 what he wanted us to be up to, and he met with us 12 and brought us back to Washington. 13 Then we were on our own after that. 14 We were organized as an advisory board, under the 15 public laws of the federal government, which meant 16 that we were a public agency, no private meetings at 17 all. 18 We were getting acquainted, we had to 19 get acquainted in public. It was awkward for me to 20 say, now, what's your name and put that down. 21 But we began to develop a plan of 22 work with staff of about 25 to 30 people who helped 23 us. And we decided to study various aspects of the 24 problems of race in this country. 25 To start a dialogue is what the GRUTTER -vs- BOLLINGER, ET AL 75 1 president wanted us to do, is start a dialogue. 2 Some people felt that that was not terribly 3 necessary in view of the fact that we have been 4 talking about race for three or 400 years. 5 But we felt that it was desirable, 6 very necessary to look at the problem 7 systematically, and to bring to bear on the problem 8 the research and findings that scholars and 9 statesmen had brought to it. 10 And that we could enlighten ourselves 11 and inform the Initiative on Race and the president 12 on the subject, and to make recommendations to him 13 about what he should do or could do. 14 We met in various parts of the 15 country as a board, and we individually were 16 burdened because by this time large numbers of 17 invitations were coming to us from all over. 18 And I traveled from Florida to 19 Seattle, and from California to Boston, you know, 20 and in many parts in between. 21 And we held hearings, I suppose you 22 would call them, which were largely airings of 23 people's feelings. We got informational scholars to 24 respond to a very deal. And we also invited people 25 to come and tell us what they were doing, how they GRUTTER -vs- BOLLINGER, ET AL 76 1 felt, what their experiences had been. 2 And I remember that there were a 3 large number of people that did that. And even when 4 we didn't invite them they came. Is this 5 particularly true, they came to me, they came to me. 6 Came to my home. 7 One man traveled from New Jersey to 8 North Carolina just to tell me about a problem of 9 race as he experienced it. 10 Some people in North Carolina came to 11 my home. I didn't know that this was going to be a 12 part of the experience. 13 There were some feeling that maybe we 14 were going to do something about the matter, but we 15 were not going to solve the problem, you see. We 16 were to air the problem and to give information to 17 the president. 18 But as I traveled about the country, 19 I got the impression that people thought that I was 20 the sort of ombudsman of the race problem. I was 21 the coming, you would say. What's the score, you 22 know, who's on first. 23 You know, it's amazing the kind of 24 presumption that people make about people who are 25 given some responsibility, and how they define, GRUTTER -vs- BOLLINGER, ET AL 77 1 people define that responsibility. In every way in 2 ranging from you do nothing, to you do everything. 3 A page appeared in the New York Times 4 on the Monday after we were appointed on Friday, 5 describing the hopelessness of doing anything about 6 race. And that this was the worst way to go about 7 it. 8 And it ranged from there all the way 9 to the insistence on the part of some people that we 10 should be given Carte Blanche to do anything and 11 everything, and that we could, we were empowered to 12 do these things. 13 Well, neither one of those things is 14 true. We couldn't do everything on the one hand, 15 and we couldn't do nothing on the other. We did 16 some things, but not as much as people might have 17 expected. 18 I regarded the undertaking as a 19 relatively modest undertaking. And that's the 20 historian's prospective, that is that we're not 21 going to solve in 13 months, we're not going to 22 solve in 13 months what we haven't been able to 23 solve in 300 years, you see. It just doesn't work 24 like that. 25 But you work at it and you do what GRUTTER -vs- BOLLINGER, ET AL 78 1 you can, and perhaps you will make a dent and you 2 might turn a corner even. And we worked hard and we 3 made the report. 4 People who felt that the president 5 was distracted by his many efforts and activities 6 and his non-presidential activities. But I said, 7 you know, people said, well it's too bad he's not 8 paying more attention to you, he's paying attention 9 to her or whoever. 10 I said, well, you know, we didn't 11 expect the president to come to every meeting, these 12 guys have a few more things to do. He had the 13 Middle East that's seizing and Yugoslavia and so 14 forth, and that all the problems in this country, 15 economic, political, social. 16 So, that we're supposed to do our job 17 and tell him what we're doing, and to make 18 recommendations for him. 19 Now, we made recommendations to the 20 president over and over again, he responded. And I 21 wrote the president every month, people would see 22 our report and think that's what we did. But no, we 23 wrote him every month. We had contact with him 24 every month that we were in the office. 25 And he responded every month. GRUTTER -vs- BOLLINGER, ET AL 79 1 Frequently we would go in to see him and talk to 2 him. Or we would go with him on some of his jobs. 3 We went to, I don't know, meeting 4 with him in Pittsburgh, he went to meeting with him 5 in Akron, Ohio, Houston, Texas, various places where 6 he went we went. 7 And he was always exciting, willing, 8 inviting us to come. Even invited me to the 9 White House at times I didn't have time to go to the 10 White House. After all I was doing a few more 11 things besides that. 12 And the recommendations we finally 13 made he was still carrying out this past summer. 14 One of the things that we did, we recommended that 15 he set up at the White House meetings with--we felt 16 that there were things that he could do that we 17 couldn't do. 18 That the power of that office so 19 great, that we thought that he should call the 20 Legal Fraternity. The Legal Fraternity wouldn't 21 listen to us perhaps, but they might listen to him. 22 And we had the meeting at the 23 White House, of course, when he did that he asked me 24 if I would come to the meeting, which I was pleased 25 to do. But he had, I don't know, how many attorney GRUTTER -vs- BOLLINGER, ET AL 80 1 generals from all over the United States there. 2 He had members from major law firms, 3 small law firms, single lawyers. He had officials 4 of the American Bar Association, the National Bar 5 Association. 6 That's the Black Bar Association that 7 was organized when the American Bar Association 8 wouldn't let blacks in, it was organized. They were 9 there. 10 And the Attorney General of the 11 United States was there, the President's Council was 12 there and so effort. And they had several hundred 13 people in the east wing of the White House. 14 And they would talk to the Attorney 15 General by the president of the American Bar 16 Association, by the president of the United States 17 and so forth. 18 And what they were trying to do is to 19 get the support and the cooperation of the 20 Legal Fraternity to do various things, including 21 increasing the pro bono work so that every person 22 would be protected by--every person in litigation 23 would be protected by adequate counsel and so forth. 24 There was a promise on the part of 25 these various entities, the lawyers, the officials GRUTTER -vs- BOLLINGER, ET AL 81 1 of the Bar Association, that they would do precisely 2 what was asked of them. 3 They would regard the whole matter of 4 Civil Rights, as a right which would be extended to 5 people in legal difficulty. And that they would do 6 everything they could to be certain that adequate 7 legal services were provided. 8 Then we had recommended that we do 9 the same thing for the so-called faith community. 10 And this past summer or spring, he called in the 11 offices of the National Council of Community 12 Injustice. 13 It used to be Christians and Jews and 14 now they have Muslims and Buddhist, they do the same 15 thing. They have expanded the office, or the title 16 to be more accurate, to more accurately describe 17 what they do. What their constituency is. 18 And every conceivable religious group 19 was there. The president of the National Council 20 was there, and the head of the Orthodox Church was 21 there. There was a cardinal or two there. This 22 were Muslims and there were Protestants of every 23 strip there. 24 So, several hundred members of the 25 faith community came to the White House that GRUTTER -vs- BOLLINGER, ET AL 82 1 afternoon. They had been in meeting in the morning, 2 by the way, and they had come to the conclusion that 3 racism is a sin, they announced that. 4 Racism is a sin, which they wanted to 5 solve the whole world and everything. And they 6 testified that they were going to do everything they 7 could to wipe out racism in American. 8 So, that was the last of the formal 9 meetings, or organizations that were held under our 10 recognized look by recommendations. At least the 11 last ones so far as I know. 12 But there were other activities that 13 continued. The Initiative On Race continued until 14 Saturday. The director of the Initiative On Race, I 15 had a letter from him yesterday in which he said he 16 had been packing up and leaving, and we talked the 17 previous week. The last week of this activity. 18 And that's what has happened up until 19 Saturday. I don't know what has taken place now. 20 Q. I want to be sure, Professor Franklin, to give you a 21 chance to tell us about so many experiences you've 22 had serving as chair, but it's our regular morning 23 break time. It would be a good time now. 24 THE COURT: Whenever you want. 25 MS. MASSIE: Okay. GRUTTER -vs- BOLLINGER, ET AL 83 1 THE COURT: I think Professor 2 Franklin needs a break. We'll take 20 minutes, I've 3 got one sentencing I need to do, maybe 25 minutes. 4 And we'll take it from there. 5 (A brief recess was taken.) 6 (Court back in session.) 7 THE COURT: Okay. 8 MS. MASSIE: Thank you, Judge. 9 BY MS. MASSIE: 10 Q. Professor Franklin, could you please tell us about 11 some of your experiences as the chair of the 12 Advisory Committee to the President's Initiative On 13 Race? 14 A. Well, I would simply say that the Advisory Board had 15 a life of 13 months. That we made twelve monthly 16 reports to the president with responses from him. 17 That we met in every part of the country for the 18 purpose of receiving information from specialists in 19 the field. 20 From getting testimony from persons 21 who wanted to voice their opinions. And for just 22 letting people sound off as it were, and to tell us 23 what they thought we ought to be doing. 24 We covered views that ranged from the 25 place of affirmative action and resolving problems GRUTTER -vs- BOLLINGER, ET AL 84 1 of race, to matters of representation on the 2 Advisory Board itself. As the Native Americans very 3 vigorously protested the fact that there were no 4 Native Americans on the committee. 5 We had covered the whole area 6 spectrum not only in terms of people, but in terms 7 of projects, problems and subjects that the Board 8 felt that it should deal with. 9 Our relationship with the public was 10 on the whole good one, a healthy one. There were 11 protests, of course, from place to place, time to 12 time. But it came with the territory, so to speak. 13 That there were people who felt very 14 deeply and very seriously about the plight of 15 various groups, minorities in this country, and who 16 expressed it. There were those who expressed it 17 with great emotion and so forth. 18 I think the accomplishments of the 19 board were several. I indicate the fact that we 20 made recommendations to the president, and that he 21 followed them I think with some enthusiasm for the 22 most part. 23 Initially meetings which he held our 24 recommendation, there was one thing that we asked 25 him to do which he did not do, and that is to GRUTTER -vs- BOLLINGER, ET AL 85 1 establish a permanent body to deal with the question 2 of race. That would be composed not only of public 3 officials, but of people from the private sector as 4 well. And this would be ongoing from one 5 administration through another. 6 It would be non-partisan and it would 7 be oblivious to the whole occurrence of politics. 8 He didn't do that, and he never told us why he 9 didn't do it. 10 We learned that for every breath you 11 take in Washington, there's a political 12 consideration that might be behind it and you have 13 to change your breath or whatever it is, on the 14 basis of that political consideration. 15 So, it might have been that, but we 16 did not know. We did not know why he didn't. And 17 that was in our final recommendation, we had no 18 opportunity after that to question him about it. 19 So, that was, we felt it was a 20 major--it would have been a major contribution of 21 ours in its absence. As we felt that was something 22 that was to be regretted. 23 Q. Did your work on the committee, leave you more or 24 less optimistic about race in America? 25 A. It left us more optimistic about race in America. GRUTTER -vs- BOLLINGER, ET AL 86 1 We couldn't go all over the country and see the 2 enormous intense interest in the question. And to 3 witness the imagination and ingenuity and creativity 4 in our communities without feeling good about what 5 was going on. We published a book called Paths 6 To--I can't remember. 7 Q. Do you remember if the name of it is the Executive 8 Summary? 9 A. No, it's a separate book altogether. 10 Q. Okay. 11 A. Paths to something of the 21st Century. And the 12 subtitle is Promising Practices In Race Relations. 13 Promising Paths Through One America in the 21st 14 Century, that's it. Promising Paths Through One 15 America. 16 And in that we listed several hundred 17 activities that were going on. Many of which were 18 stimulated by our Advisory Board and its work. And 19 these were community activities of all kinds, that 20 ranged say, from the kind of survey of conditions in 21 the various parts of Seattle and the recommendations 22 for the improvement of those conditions. 23 Ranged from that all the way to, say, 24 an incident in Winston Salem, North Carolina where 25 on one day they had a luncheon where they would GRUTTER -vs- BOLLINGER, ET AL 87 1 explore the problem of race in Winston Salem and 2 make some suggestions for its improvement. 3 But the luncheon was itself a 4 remarkable step. Each person who came to that 5 luncheon not only had to pay for his or her 6 luncheon, but had to bring someone to the luncheon 7 of a different race. 8 And I was in Winston Salem not long, 9 and this happened in 1998. I was in Winston Salem a 10 few months ago and was talking to people who said, 11 they had letters of remarkable friendships that had 12 grown out of that one experience in 1998. 13 Well, that's the sort of thing that 14 we got. Promising practices, all kinds all over the 15 country. The practices of coming together were so 16 spectacular in Akron, Ohio that the President 17 decided we should all go out there and look at it, 18 and have some contact with the people who were 19 involved in their, what they call Coming Together 20 Program. 21 And we all went out on Air Force One 22 and visited with the people a half day. And we were 23 very much encouraged by what we saw there. 24 I would say that the promising 25 Practices were numerous and very effective of the GRUTTER -vs- BOLLINGER, ET AL 88 1 whole. And they recommended themselves to other 2 communities, that was the beauty of it, the 3 importance of it. 4 That not only was this community 5 successful in doing this, but then other communities 6 could replicate this success in their own if they 7 felt that it was feasible or viable. 8 I think that in some ways that was 9 one of the most effective results, one of the most 10 successful results. 11 As a publication of these experiences 12 and the myriad of communities, several hundred 13 communities and the offering of these experiences to 14 others, and in that way I think they were able to 15 see what they could do in their community that was 16 commended or recommended by other communities. 17 Q. Did the Committee make any findings about the 18 presence, or not, of gaps in understanding in 19 perception between people of different races? 20 A. Yes. We were the ones, we were among those who made 21 some noise about racial profiling. We felt that 22 that was--that should be shared, that the findings 23 should be made and shared nationally and that's in 24 our report. 25 We recognize the differences in GRUTTER -vs- BOLLINGER, ET AL 89 1 perception of problem of race from one section to 2 another. And even within ones state we found 3 differences in perception of race. 4 And even among groups within 5 communities, it's the problem that connected what I 6 was talking about before our recess. The confusion 7 over what one group conceives as opposed to what 8 another group conceives, or perceives. Much 9 confusion. 10 We found that to be a part of the 11 problem itself. That is the way in which people 12 looked at the problem, it was so, so different in 13 different communities, different places, different 14 areas. And we sought to point that out. 15 And when you see differences like 16 that, or like those, they are unamenable to 17 correction and they are amenable to creative 18 resolution of them. 19 It is when you find that people have 20 different perceptions of the problem of race, and if 21 you can make it quite clear what those differences 22 are, and if you can make it possible for them to see 23 those differences, that step in itself is a move 24 toward the resolution of the problem. And we were 25 able to do that, I think, on a number of occasions. GRUTTER -vs- BOLLINGER, ET AL 90 1 Q. Could you generalize for us about how the white 2 people who spoke to the Committee about matters of 3 race, saw the question of race? 4 A. I could not generalize to the point of making a 5 statement that would cover all of the white people. 6 I can generalize it to this extent, that there were 7 a number of white people, but no black people who 8 came before the board and said that there was no 9 need to do anything else, the problem was solving 10 itself. 11 That view was not shared by any 12 African American or Latino or Asian American who 13 appeared before the board. That was a view held 14 fairly widely, but not universally among whites who 15 appeared before the board. 16 There were those, of course, who felt 17 that--there were whites who felt a lot more needed 18 to be done. But I have the feeling that that group 19 was in the minority. 20 That surely those who voluntarily 21 came out, I'm not speaking of the specialists that 22 we asked to come and share with us their findings. 23 But those of who voluntarily came, expressed a view 24 that we can describe as satisfied, or a view that 25 held nothing needed to be done on our part or anyone GRUTTER -vs- BOLLINGER, ET AL 91 1 else's part. It would work itself out in due 2 course. Everything would be all right. 3 That, you know, was not consonant 4 without findings in other areas. Our own studies 5 and so forth, left the impression with us that a 6 great deal needed to be done and could be done, and 7 was being done. That's what these promising 8 practices were about. 9 Q. How do you explain that lack of consonant? 10 A. Well, I would say that there's a widespread feeling 11 on the part of people in the white community that 12 things were all right. They were working themselves 13 out. And that we don't need to be tampering with 14 anything, that in due course it will be all right. 15 On the other hand, I think that the 16 vast numbers of African Americans and some of their 17 white colleagues feel that it will not work itself 18 out, unless you work at it. 19 And it requires not only vigilance 20 but active effort to eliminate some of the causes of 21 the problems of race. And, of course, all the 22 litigation that we see almost daily, settlement of 23 cases of bias. 24 We can find it even in the 25 Fortune 500, we would be busy reading about those. GRUTTER -vs- BOLLINGER, ET AL 92 1 And that would indicate that things are not all 2 right, that they will not work themselves out unless 3 you work at it or with it. And that's what we felt 4 needed to be done on the board. 5 Q. Was that true in all different sectors of American 6 life? When I say sectors I'm thinking education, 7 transportation, employment? 8 A. I think the generalizations that I made would be 9 true more or less in the various sectors of American 10 life. 11 Q. Professor Franklin, you were involved in Brown 12 versus the Board of Education as a historian, were 13 you not? 14 A. Yes. 15 Q. Tell us about that? 16 A. Well, I was teaching summer school at Cornell 17 University in the summer of 1953, when I got a call 18 from what already was my very good friend, 19 Thurgood Marshall, asking me what I was going to be 20 doing in the fall. 21 And I said I'm going back to 22 Howard University to teach. And he said in his 23 usual sort of jocular fashion, do you know what else 24 you're going to be doing, I said no. Well, I'm 25 telling you, you're going to be working on Brown GRUTTER -vs- BOLLINGER, ET AL 93 1 against the Board of Education. 2 And you're going to be coming to 3 New York every week to work with us in our offices. 4 And you're going to head up the nonlegal research 5 staff, which is to answer the questions which were 6 propounded by the Supreme Court in its statement of 7 June of 1953 when they asked us about, asked the 8 counsel on both sides, what were the intent, what 9 was the intent of the framers of the Fourteen 10 Amendment with regard to segregation in the schools. 11 What was the intent of those who 12 voted for the Fourteen Amendment in the state, that 13 so forth and so on. 14 And so I went back to Washington in 15 August of 1953, and began what turned out to be a 16 weekly trip to New York. From the extent of from 17 Wednesday afternoon until Saturday each week. My 18 schedule to teach the classes at Howard was arranged 19 so that I could do this. 20 And I went there and I worked in the 21 offices. First to be there as kind of a resource 22 for the lawyers, and this was a great revelation to 23 me, who admitted that they did not know certain 24 things. 25 And so it was a great satisfaction to GRUTTER -vs- BOLLINGER, ET AL 94 1 me being a son of a lawyer, to hear when I would 2 take a deep breath and they would say, just a 3 minute, John Hope is about to say something. 4 And they would all listen to me 5 whatever it was I was going to say. They would hang 6 on to my every word. I thought that was very good, 7 very healthy relationship with the lawyers. 8 MR. PAYTON: As we are today. 9 THE COURT: Yes. 10 A. So, I was asked to write several papers on the 11 subject of the evolution of Jim Crowe and education 12 in the south, and various aspects of problems 13 arising out of reconstruction that dealt with 14 segregation of schools and other institutions. 15 And I did research in the library of 16 Congress and various other people were doing 17 research in other places. 18 We also had the way of trying to find 19 out whether the other side, something Thurgood did 20 not approve of, whether the other side was using any 21 materials. 22 And I suppose the statute of 23 limitations might have run by now. 24 THE COURT: We'll give you immunity. 25 A. Thank you. That we sometimes would misplace these GRUTTER -vs- BOLLINGER, ET AL 95 1 materials in the library so that they could not 2 easily be discovered. After we used them and got 3 what we wanted out of them. 4 THE COURT: Lot of these students 5 probably still do that. I did that when I was going 6 to school. 7 A. In any case, we were able to gather a considerable 8 amount of information which bore on the subject of 9 the role of the views of the holders of the 10 occupants of Congressional seats, legislative seats 11 at the state level and so forth. 12 And to conclude that they did have 13 some notion of what the framers of the Fourteen 14 Amendment felt. And we sought to expose these 15 views. 16 We could not say, we were not able to 17 say that a majority of the members of the Congress 18 had any sense of what the Fourteen Amendment would 19 do with regard to segregation in the public schools. 20 Or even the framers of it, or even 21 the members of the state legislature could not say 22 definitely what their views were on this particular 23 subject. 24 We did find though among people like 25 Thaddeus Stevens and others of the more articulate GRUTTER -vs- BOLLINGER, ET AL 96 1 and probably left wing in the Congress, that they 2 did express themselves. That they did hope that 3 this would end the separation of race in schools and 4 so forth. 5 How convincing that was to the court 6 we never did know. And we were admonished by 7 Thurgood Marshall almost from day-to-day. That we 8 would find the material and they would use it, they 9 would present their material and it wasn't our 10 business to speculate on how the court would react 11 to any of it. 12 We would rush in and say, this will 13 get them and he said, you don't know what will get 14 them. And he said, you're not going to sit around 15 here and speculate. 16 He said you're going to sit around 17 here and work, and provide all information you can 18 about the subjects that the court has asked us to 19 give. And that's all you can do. 20 And we did some other things, we did 21 some speculating, but not in his presence. He said, 22 we ought to run scared. 23 I would work there, as I said, from 24 Wednesday afternoon until Saturday or Sunday. And I 25 never left the offices, but when I would leave GRUTTER -vs- BOLLINGER, ET AL 97 1 Thurgood Marshall would be sitting there working. 2 It could be midnight and he sometimes 3 would say we'll have a 15 minutes break, or it could 4 be 10:00. I don't know what happened after midnight 5 because I was gone, I left. But I always left him 6 there. 7 And the remarkable thing about that 8 although his wife was dying at the time, and I 9 learned that later. She did die within the year. 10 He was absolutely unflapped by any personal problems 11 that he was having. 12 And that he simply worked day and 13 night. He would call and talk to her, he stayed 14 there and worked. I don't think I've ever seen 15 anyone work as hard as he did on that case, ever. 16 And it was an inspiration to all of 17 us who worked with him. He set a new standard for 18 just plain hard work for all of us. And after that, 19 I said that's the least we can do to try to solve 20 our problems, if they can be solved at all by work. 21 And by the time we finished our work 22 in December of 1953, we had the satisfaction of 23 knowing, a feeling that we had done all we could. 24 And that the lawyers then would have to take it on 25 in their arguments before the court. GRUTTER -vs- BOLLINGER, ET AL 98 1 And we could only stand back and see 2 them use our material, or not use it as they wished. 3 But that was the experience we had. 4 And then there was the long wait, of 5 course, until May. And May the 17th, 1954 when that 6 decision was handed down, my wife who was a 7 librarian at Spingarde High School, I think a rather 8 remarkable one, she was a librarian at the high 9 school the main floor the founder of the NAACP, 10 Joel Spingarde. One of the founders. 11 She called me and told me that, well, 12 it's all over, she said, have you heard, I said no. 13 And she told me what the decision was and we then 14 began to celebrate. 15 Well, we were to learn later while we 16 were celebrating, there were those who had no 17 intention of conforming to the orders of the court 18 or wishes of the court, that they were plotting and 19 planning beginning the night of May the 17th, 1954, 20 and going on until the fall when they put into play 21 their various proposals, such as special actions on 22 the parts of school boards to do what they could. 23 Pupil preferences and all kinds of 24 activities, all kinds of formula that would keep the 25 schools segregated as they had been. GRUTTER -vs- BOLLINGER, ET AL 99 1 And we didn't know until we were into 2 that year that every step that was taken, that had 3 to be taken in order to promote or to push the 4 desegregation of schools just a little more, just a 5 little further. 6 There were all of these blocks and 7 obstructions of every conceivable kind that were in 8 place wherever we moved. So that you couldn't do 9 anything without getting up against the fight once 10 more. 11 So, that the Brown decision was not 12 the end of the problem, it was the beginning of a 13 struggle. Which continued for an indefinite period 14 of time. 15 The motto, the south never, the south 16 will never. So, those became more than 17 platitudinous statements, they became words that 18 reflected the position, the unassailable position of 19 vast portion of the south. Not all of them, but 20 many of the south. 21 And to win even one or two or three 22 over, would have had to stretch it--had exert its 23 energies and efforts to a great degree. 24 So, that in the 1950s and '60s, we 25 had to fight all over the battles that we thought GRUTTER -vs- BOLLINGER, ET AL 100 1 Thurgood and his staff had won in 1954. And there 2 was little relenting. 3 Where there was relenting, the 4 situation was bright and beautiful. In my own home 5 town, for example, Tulsa Oklahoma. 6 The governor had said to the people 7 of Oklahoma that, you know, we're not going to--the 8 Supreme Court has spoken, and we're not going to 9 have any riots or any resistance to court orders, 10 we're going to conform to them. 11 Well, the school authorities in Tulsa 12 not only took the governor's statement seriously, 13 but then they decided to go beyond that and to try 14 to conform to the court's orders in the first place. 15 And with the result that they redid 16 the schools in Tulsa. Eliminated to a remarkable 17 degree the desegregation, and created one of the 18 best school systems in the state, if not in the 19 country. 20 Booker T. Washington which I had 21 graduated in 1931, became the great institution in 22 Tulsa for the education of Tulsa students. And 23 within a decade, white people would kill to get 24 their children in Booker T. Washington High School. 25 And when I was there a few years ago GRUTTER -vs- BOLLINGER, ET AL 101 1 when I was elected to the Booker T. Washington High 2 School Hall of Fame, the party celebrating it was 3 held on the south side. 4 That means in Tulsa in the 5 wealthiest, poshes part of the town where not more 6 than two houses to the block, sometimes only one. 7 And the president of the Booker T. 8 Washington PTA whose children were going to 9 Booker T. Washington High School, gave the party. 10 And it was just another world from the way the world 11 was when I graduated from high school. 12 And there they were, the great 13 supporters of Booker T. Washington High School. And 14 it wasn't merely that you had people of that 15 stature, that wealth. 16 It was that the curriculum, 17 everything had been done over. And the school 18 hadn't moved, the school was still over in the 19 ghetto. Not even near the line that divided the 20 whites from blacks, and the line was very clear in 21 Tulsa. 22 But they sent their kids to school 23 over there. And the curriculum was so vast, there 24 were seven modern foreign languages taught at 25 Booker T. Washington High School. With the most GRUTTER -vs- BOLLINGER, ET AL 102 1 elaborate, most extensive programs in computer 2 science and all the other areas of knowledge. 3 And that's what could happen, that's 4 what did happen. Busing worked, chauffeur driven 5 cars worked, transportation of every description 6 worked. And people seemed quite satisfied with it. 7 But that was the extreme as opposed 8 to the other extreme, where there was the 9 resistance, the bitter resistance. The complete 10 obstruction of the move to desegregate schools, and 11 the maintenance of segregation in the status quo as 12 it were, the status quo anti-Brown as it were. 13 And not really until more recently 14 have we seen the affects of that long standing 15 persistent resistance what the affects would be. 16 It would be turning back the clock as 17 it were, as has happened in Charlotte, North 18 Carolina where Swarn against Meganburg is gone by 19 the board, so to speak. 20 And where bussing has been now 21 declared to be unnecessary. And where we've had the 22 resegregation of the schools in that community, and 23 that's one of the great tragedies it seems to me of 24 the whole process of resistance. 25 The resistance was kept alive until GRUTTER -vs- BOLLINGER, ET AL 103 1 it could be rekindled and made into the kind of 2 strong force that would make it possible to repeal 3 Swarn for all practical purposes. 4 Q. When you first heard about the Brown decision before 5 you later learned about the resistance to it, what 6 did it mean to you? 7 A. What it meant, it meant the end of a 8 long--wonderful, wonderful end of a long arduous 9 task. I think that there were those of us who were 10 in nonlegal research who tended to take a little 11 more credit than we deserved to take. But we didn't 12 object with it pretty much. 13 If someone said to us, it was a good 14 job you did in Brown, thank you, very much. We 15 worked hard. 16 But we did feel that this was a 17 victory that all of us, in which all of us could 18 share. And it was victory which the country needed. 19 Q. Why? 20 A. Well, it might put an end to the problem of racial, 21 not only segregation, but the problem--but the 22 racial divide, it seemed to have been so poisonous 23 to this country. And that it seemed never to end, 24 it will go on and on and on. 25 And we thought that maybe this GRUTTER -vs- BOLLINGER, ET AL 104 1 decision would do, would put an end to some of that 2 and would set us on another road. And in the course 3 of activity and action that would be healthy for the 4 nation as a whole. But it turned out not to be that 5 way. 6 Q. Have we made any progress on these matters in your 7 lifetime? 8 A. Yes, yes. I don't want to convey the impression 9 that we have gone to the dogs, or that this effort 10 has not been profitable to some extent, it has been. 11 I try to indicate that now and then 12 you had a system of schools like the Tulsa system, 13 which I'm very proud. And you have the extensive 14 segregation of some of our colleges and 15 universities. 16 You have the increasing opportunities 17 for work. The labor force is to a considerable 18 extent different from what it was 40 years ago, 50 19 years ago. 20 I've never see a black man driving a 21 Trans Continental truck without stop and marvel that 22 this didn't happen, couldn't have happened 35 years 23 ago. Not any. 24 When he see a black man operating a 25 jack hammer, I have to stop and say this is GRUTTER -vs- BOLLINGER, ET AL 105 1 something, this is really something. That couldn't 2 have happened. 3 I remember so well when George Monroe 4 a playmate of mine who was in the riot and who hid 5 under the bed, he was five years old. And a white 6 hoodlum stepped on his fingers and he didn't even 7 cry, he didn't shout out. He just took it. 8 When I saw him later driving the 9 first Coca Cola truck in Tulsa that any black person 10 could drive, and he was lifting those cartons of 11 Coca Colas, I wondered if his hands hurt from that 12 experience he had many years earlier when he was in 13 the riot. 14 You know, there have been some 15 dramatic changes, dramatic to me as I watched and 16 seen these changes through the years. They're 17 almost miraculous to me when I see them. 18 It's like I was celebrating, I 19 remember we celebrated when the daughter of one of 20 my best friends graduated from medical school and 21 then passed her boards and then became a diplomat at 22 the American College of Internal Medicine. 23 And we were celebrating and she said, 24 what's all the fuss about. And I had to remind her 25 that she didn't know it, but she was a pioneer. GRUTTER -vs- BOLLINGER, ET AL 106 1 That there were no black diplomats of 2 the American College of Internal Medicine when I was 3 growing up, or even when I was in college. And that 4 this represents a change for the better. 5 And to see changes so much so that 6 she didn't even recognize that there was this 7 dramatic difference, the turn around from what had 8 been the lot of her parents and my parents, no. 9 Yes, I could sit all day and talk 10 about changes for the better that have taken place. 11 And if they hadn't taken place, one would wonder 12 whether this was a country worth fighting for or 13 living in, you see. The evolution of change is very 14 important to keep you going. 15 MS. MASSIE: May I approach the 16 witness? 17 THE COURT: You may. While you're 18 doing that, Professor, you have talked about the 19 work that you did, the historical work on Brown, has 20 that been published other than perhaps in the briefs 21 that were filed? 22 A. No. I published the one paper, I think it was in 23 the South Atlantic Quarter, they called it Jim Crowe 24 Goes School. The history of segregation and the 25 reconstruction right after. GRUTTER -vs- BOLLINGER, ET AL 107 1 THE COURT: But the Congressional 2 work that you did and so forth was used internally? 3 A. Yes, that's right. 4 THE COURT: Thank you. 5 A. And some of it can be found in the footnotes in the 6 Brown brief. 7 THE COURT: Okay. 8 A. That's all the credit we got. 9 THE COURT: It was the result that 10 you were looking for. 11 A. Yes. 12 BY MS. MASSIE: 13 Q. The table I just handed you, Professor Franklin, is 14 entitled University of Law School Graduating Classes 15 By Race. And it indicates a range of years from 16 1950 to 1999. 17 MS. MASSIE: Judge Friedman, you 18 should have a copy. 19 THE COURT: I have it right in front 20 of me. 21 MS. MASSIE: It's exactly the same as 22 Exhibit 97, it's just been stuck on one page and 23 counsel have copies. And I think the gallery also 24 has copies. 25 GRUTTER -vs- BOLLINGER, ET AL 108 1 BY MS. MASSIE: 2 Q. Did you have a chance to look at this a little bit 3 yesterday? 4 A. Yes, I did. 5 Q. I want to ask you first whether given your knowledge 6 of desegregation patterns in higher education over 7 the last half century, this looks fairly typical to 8 you. 9 And then second, ask you to kind of 10 describe it. And third, ask you if you have any 11 other thoughts about what the chart means, or how we 12 should interpret it, what we should take from it? 13 A. Well, I would say that you could by the various 14 things called the monitor act, there's no such book, 15 on drawing from this chart and interpreting these 16 numbers. Particularly the numbers that have to do 17 with the minority groups. 18 You move in the way that the African 19 American representation was in the '50s and '60s, 20 that are not unlike the representation I think that 21 would be in the earlier years. Just a few, a token 22 few, four, three, five, whatever. 23 And then something happens in the 24 late '60s and early '70s. And what's happened is 25 that you have got a very vigorous effort on the GRUTTER -vs- BOLLINGER, ET AL 109 1 part, largely of African Americans and their allies, 2 to open up the institution. And to have more than 3 token representation in the institutions. 4 And that begins to occur in 1971, 5 '70, '71 and on. And that corresponds almost 6 precisely to the Civil Rights Movement and the 7 struggle to increase African American representation 8 in American society generally, you see. 9 And all of these numbers from 1971 10 on, I think, tell us a good deal about that effort. 11 Or put it another way, this is the result of the 12 effort that's made. 13 And not very characteristically is 14 that once you open up--you see the paradigm is first 15 of all, the black/white paradigm, which I think is 16 very important to recognize. The black/white 17 paradigm. 18 And then as this becomes fairly 19 successful, it makes it possible for these other 20 elements to be admitted too, you see. You get Latin 21 Americans, Asian Americans, and Native Americans 22 come in, I wouldn't say on the coat tails, but come 23 in as a result of the opening up of the 24 opportunities. First by blacks and then the 25 opportunities for these other groups as well. GRUTTER -vs- BOLLINGER, ET AL 110 1 So, that I think it must not be 2 overlooked that once the society opens up to blacks, 3 that others will have a greater opportunity as well. 4 And that's what you see in Latin American, Asian 5 American and Native American groups. 6 It's very interesting, I'm not able 7 to explain the certain aberrations falling off of 8 numbers. Except that down toward the end when you 9 see in 1998 the number of African Americans at your 10 University of Michigan graduating class, fall from 11 32 to ten. 32 in 1997 to ten in 1998. 12 This might reflect the growing 13 uncertainty about the status of African Americans in 14 your law school and in future classes. And that 15 represents, I suppose, some discouragement on their 16 part. 17 The same thing was true in Berkley in 18 the graduate schools and professional schools. The 19 same thing was true in some other state 20 institutions, where the great drive to eliminate the 21 attractiveness of these institutions in terms of the 22 effort they made to include minorities. 23 When the great drive came to exclude 24 them, then the reaction of the students themselves 25 was that they didn't want to be in hostile GRUTTER -vs- BOLLINGER, ET AL 111 1 environments or environments where they didn't seem 2 to be very welcome, or where people were working 3 against them and so they began to drop off. 4 Now, there might be other 5 explanations too, it might have been depressions or 6 something like that. But I think that these social 7 forces are operating there to pull the numbers down. 8 And that might be true even of the 9 Latinos who would be declining sharply after 1996. 10 Is that what--you have any other questions to ask 11 about this? 12 Q. Does the general--just one. Which is rather the 13 general trajectory that the chart gets out in terms 14 of the representation of different racial groups at 15 the law school, seems more or less speaking rather 16 typical to you? 17 A. Yes, I think so. I think it's what you would expect 18 given these forces that I suggested, that I 19 indicated. The drive in the 1960s to open up the 20 situation, that results in the increase in the 21 numbers. That results in the admission of these 22 other minorities groups. 23 And the fluctuation cannot always be 24 explained, until you get down to the 1990s, the late 25 1990s when you got anti-affirmative action efforts GRUTTER -vs- BOLLINGER, ET AL 112 1 being mounted. And then you get the hostility that 2 comes with that and the drop in enrollment. 3 MS. MASSIE: Judge, I'm going to move 4 the admission of 97. 5 THE COURT: I'm sure there's no 6 objection. 7 MR. PURDY: No objection. 8 THE COURT: It will be received. 9 BY MS. MASSIE: 10 Q. What were the arguments that the people made in the 11 desegregation in the years leading up to Brown? 12 A. The arguments were so numerous that it would be 13 difficult to recall them. Let me say here that the 14 major arguments were that there were differences, 15 there were racial differences in the intellectual 16 gifts and talents of blacks and whites. 17 And that they should not be mixed 18 together, in view of the fact that blacks and 19 whites--blacks could not keep up with whites. 20 There was the argument also that this 21 is the first step toward social equality. The first 22 thing you know, black and whites will be marrying 23 each other. And you must keep them apart, otherwise 24 they might be doing that. 25 That they live, for the most part, GRUTTER -vs- BOLLINGER, ET AL 113 1 their residential segregation, separates the black 2 and the whites. And that bringing them together is 3 artificial by bussing or by some transport. It was 4 artificial and that that should be rejected. 5 It was not in passing, it ought to be 6 observed that bussing was not new. That buses were 7 used to transport school children from the time that 8 the first bus was invented. 9 And to transport them racially, to be 10 certain that blacks and whites did not study 11 together or go to school together. They were 12 transported, they were transported all during the 13 '20s, '30s. It's not new, you see. But that was an 14 argument that was used. 15 It was so terrible to get these 16 children up and put them on a bus early and they 17 would come home late on the bus. That was the 18 argument used in the 1950s and before, and on into 19 the '50s after Brown. 20 There was too the argument that the 21 educating of these children together might in some 22 way cause them to redefine their roles in society. 23 Which had been defined and ordained by forces more 24 powerful than the schools or anything else. 25 So, that you cannot do this, you GRUTTER -vs- BOLLINGER, ET AL 114 1 cannot put them together because they're not 2 supposed to be together. And that was some kind of 3 a violation of nature itself. To intervene in this 4 way, and to prevent the natural normal kind of 5 relationship that ought to exist. Namely superior 6 and inferior relationship. 7 Separate and equal, or separate and 8 unequal. Separate by all means. These were 9 essentially the arguments that were asked. To keep 10 the races apart, you keep the schools separate. 11 Q. Did you ever encounter later on arguments about 12 inferiority and superiority in standards, or 13 arguments like that expressed anywhere in other 14 schools? 15 A. Yes. In other contexts, yes, that becomes common. 16 You see, the presumption, the presumption almost in 17 all cases where we are talking about different 18 races, the presumption is that there's difference in 19 ability, difference in temperament and so forth. 20 And I can tell you when I was chair 21 of the Department of History at Brooklyn College, 22 and later when I was chair of the Department of 23 History at the University of Chicago, whenever I 24 talked about increasing the number of African 25 Americans, the response would be, well, don't forget GRUTTER -vs- BOLLINGER, ET AL 115 1 the standards. 2 I said, who has forgotten the 3 standards, we're not talking about standards, we're 4 talking about people and the standards are to be 5 understood. 6 When I say let's bring in X person 7 who happened to be white, no one raised the question 8 about standards. But I mention that somebody who 9 happens to be black, and they say what's the 10 standard. don't forget. We got to have smart 11 people. 12 What's that got to do with race. 13 Aren't there smart blacks. Aren't there smart 14 Eskimos. So, I rejected that, I always rejected 15 that argument. 16 But there were efforts made even in 17 Chicago, even in Brooklyn, efforts made to block any 18 move toward increasing the number of blacks. And I 19 resented that very much, because as long as I was 20 the only one, I couldn't help but feel that I was 21 somehow the token. One never wants to be the token. 22 But I couldn't resist the temptation 23 of describing myself to myself as the token black, 24 even at these great universities where I've been. 25 It was not really until I went to GRUTTER -vs- BOLLINGER, ET AL 116 1 Duke where there were already five blacks in the 2 department when I got there, that not until I got 3 there that I felt that I was not a token. And 4 that's the way the ball was. 5 MS. MASSIE: Judge, I would like to 6 ask your permission to huddle briefly with 7 Mr. Payton and Mr. Kolbo about scheduling the rest 8 of the afternoon. 9 THE COURT: Of course. Absolutely. 10 MS. MASSIE: Thanks, Judge. If we 11 could have lunch at two, break for lunch at two 12 which is--I realize it's late. It's that 13 Professor Franklin has a flight out at three to 14 Washington, D.C. where he chairs the National Park 15 Service as I understand it, or commission. He'll 16 correct me maybe. 17 THE COURT: I have a docket too, so I 18 have no problem with that. 19 MS. MASSIE: Great. 20 THE COURT: You want to approach the 21 bench? 22 (Discussion off the record.) 23 THE COURT: We'll take a five minute 24 break. Not more than a five minute break. 25 GRUTTER -vs- BOLLINGER, ET AL 117 1 THE COURT: You may be seated. Okay, you may 2 proceed. 3 MS. MASSIE: Thanks, Judge. I just have a few more 4 questions on Direct. 5 BY MS. MASSIE: 6 Q Professor Franklin, earlier in your testimony you 7 mentioned a couple of times the Tulsa Riots I think of 1921. 8 Could you tell us what happened in those riots? 9 A Well, on May 31st, 1921, a young man, black, was coming 10 down in the elevator. They were all manually operated elevators 11 in those days, and a white girl was operating the elevator. He 12 came off the elevator, and the story is he stumbled and she 13 screamed and those two acts put together were translated into 14 an assault. And the young man was then arrested and placed in 15 jail, and charged with criminal assault against this young 16 white woman. 17 In the afternoon the rumor was that a jail and a 18 trial was too good for him, and that he should be brought to 19 justice sooner by lynching. When the word got around that 20 they were going that night to get Roland and lynch him, 21 members of the black community, began to get that word, to 22 hear about it, and they decided that was not going to happen, 23 and that they would protect him. And they went down to the 24 courthouse, or to the jail, and the sheriff asked them what 25 they were doing there, and they said we came to protect Budd 118 1 Roland, and he said he didn't need any protection. They said 2 well, we think he does. And he was -- one word led to another 3 and the judge -- the sheriff asked them to disburse and to go 4 home. And Roland is a bad part of the town, and they did. 5 And then they ran into a mob that was coming -- a 6 white mob that was coming to the jail. And that convinced them 7 they should come back. One word led to another and someone 8 shot and the riot was on. And they fled to --the whites fled 9 to the black part of town and began to put torches to the 10 black part of town. And they shot people as they ran. And 11 blacks began to shoot too. So it was unusual in this respect 12 that there was a killing on both sides. And some were buried 13 in the mass graves it is said. There were others that were 14 just left lying, and later the bodies were recovered and 15 buried individually. 16 What happened then was that the entire section of 17 the town of North Tulsa, that's where the blacks lived, that 18 entire section was torched and burned. And as I indicated 19 earlier my father was caught in the cross-fire. He went to 20 see what was going, and that's when he was seized, detained 21 for several days at Convention Hall. There were several 22 detention points for blacks who were kept a matter of three, 23 four days. And then things began gradually to get back to 24 normal. By that time the entire black section of town had 25 been leveled. The only building that was standing, you can 119 1 see on any picture of the riots, the day after the riot, the 2 only building that was standing was the high school, Booker 3 Washington High School. 4 As I indicated my father -- I don't know where he 5 got it from but he got a tent. And they put up a tent that he 6 and his law partner practiced in that tent. And they had a 7 great -- land office business for the next several days as 8 blacks came in to get some kind of advice as to what they 9 should do about their property and so forth. People would 10 bring in cases to him against insurance companies, against the 11 city. And then as I indicated the city forbade them to build 12 houses unless they were fireproof which they could not do. 13 And so when we moved to Tulsa in 1949, four years 14 later, the town was still being constructed, that is, the 15 black town was still under construction. There was no church 16 that had more than a basement. And I said somewhere it was 17 kind of a new architecture, neo-post riot architecture. 18 Wherever you all looked, just the basement -- and no 19 superstructure was placed on it until several years later, I 20 would say four years after the riot. And then within the next 21 five or six years, these churches had built sanctuaries in the 22 upstairs part of the churches. Blacks building back slowly, 23 gradually, successfully. 24 And there was this peace that came over the city, a 25 peace that prevailed when I was growing up. So I grew up not 120 1 in fear at all, because we felt there was no reason to be 2 afraid. 3 White people were making all kinds of concessions to 4 blacks in those days. They were doing things. For example, I 5 was playing --I was a tennis player in my high school days. 6 Our accommodations were, of course, inferior. We had no all- 7 weather courts or anything. We just had courts. And when the 8 rains came our courts were washed out. But we felt free to 9 call the park department and say our courts are washed out, 10 we're going to play at Pereira Park courts. It was all right. 11 As long as our courts were washed out, it's all right. 12 The same was true in other ways. The differences 13 were still maintained. We had no swimming pool. We had just 14 creeks. I never learned to swim properly because we never had 15 no accommodations. All these indoor swimming pools, the white 16 schools had. We didn't have any of those. But we made it 17 through somehow. But there was this interesting relationship. 18 There were times, for example, when we needed a 19 larger stage for our productions, our operetta productions. 20 We could do that at the white high school, Central High. 21 It's all right. You know, be gone the next day, but it's all 22 right to perform that evening. The same thing is true with 23 other kinds of things. 24 We didn't have any fear and we had -- coupled that 25 with the amazing amount of independence that our teachers and 121 1 principal insisted, we grew up more or less normally in that 2 atmosphere, more or less normally. Disadvantaged insofar as 3 accommodations -- as far as our schools were concerned but not 4 lacking in a sense of self-independence, a sense of freedom. 5 So that when I was -- when the national band contest came to 6 Tulsa in 19 -- spring of '31, my senior year in high school, 7 they were all there, John Philip Sousa, everybody was there. 8 And we who played in the band, we went down early and got a 9 place for us -- the line of march, where the band was going to 10 be coming down. 11 And some white women said to us, you move so we can 12 get in your place. We get your place. Move they said. No, 13 we got here first, we're not moving. This woman said, you're 14 not moving? No, we're not moving. She said I'm from Texas, 15 I'm not use to that. If we were in Texas, we would move you. 16 I said we're not in Texas now. That was the end of that. It 17 gave us a sense of security. And I won't say we were 18 encouraged to do that, but we were not discouraged from doing 19 it and, therefore, we felt secured, we felt safe. And I 20 didn't realize what was behind that until later, much later 21 when the city finally admitted that they had a riot in 1921, 22 and this was 1996 when they admitted it. And then I began to 23 see this was their way of compensating for the violence that 24 had occurred. It was their way of indicating that they were 25 now good people, and they were not going to do this to us any 122 1 more, that we could escape without being reprimanded for our 2 -- even when we violated racial rulings. 3 I remember once I was buying -- I remember this 4 today. I was, you know, 14, 15, and I was standing in line 5 to pass my purchase to the clerk, and she reached behind me to 6 this white woman who was behind me. I said no, no you can't 7 do that, don't you know I'm here, I'm next in line. You're 8 not going to take her, you're going to take me first. I 9 probably would let that go today, but in 1930, no I'm not 10 letting that go. I said you got to serve me next. And they 11 violated me and said you -- they didn't think I had good sense 12 or anything. So I insisted and they accepted that. That was 13 the time in Tulsa in the 1920s and early '30s. Very strange I 14 thought. 15 Q You also mention that in Tulsa that the schools had a 16 different response to Brown -- 17 A Yes. 18 Q -- than was common in other parts of the country. 19 A Right. 20 Q As a way of getting a sense of the continuum across the 21 century you've lived through, I wonder if there are any other 22 incidents in Oklahoma or in Tulsa from -- of a more recent 23 vintage that you could tell us about that involved race? 24 A Well, I have plenty of those about race. I said earlier 25 that that I was going to confine my experiences of these 123 1 efforts to humiliate me to the experiences I've had since I was 2 eighty years old, the more recent ones. And I don't know why 3 it is that I run into people in hotels who want to pick on me 4 or cite me, calling me to do something. I'm beginning to learn 5 that I'm not supposed to be in the hotels. But this is true 6 whether it happened in Washington or New York or if it's the 7 hotel in -- the Doubletree in Tulsa -- in Oklahoma. I was in 8 Oklahoma City about three years ago. I was waiting for the man 9 who owned the largest book store there because he was having an 10 autograph party for me that afternoon. We were having lunch 11 first, I was just in the hotel. A man walked up to me and 12 said, here's my keys go and get my car and bring it around to 13 the front. I'm standing with my white hair and my broken down 14 self, and I said I don't know where your car is, and I'm a 15 guest in the hotel just like you, and he went away. I didn't 16 try to tell him where he could get his car. I didn't know where 17 the car hops were, whatever they are called. But I just let it 18 go. 19 Apparently, the person at the desk must have said 20 something to him because in the midst of the afternoon -- in 21 the middle of the afternoon while I'm autographing books and 22 the line is from here to the door, this man walks in with his 23 buddy who was with him in the hotel, and comes all the way up 24 to the front of the line and interrupts me and says, I want to 25 apologize for what I did. I didn't know who you were. I said 124 1 well, who am I? I'm a human being. Seems that's all he needed 2 to do was treat me like a human being. He didn't need to 3 break into the line when I'm autographing my own books to tell 4 me he's sorry because now he knows I can read and write. Even 5 if I couldn't read and write, it was my view that he had no 6 reason to presume on me. And I resented it as I do now and I 7 even resented his apology because it was will-based. 8 I finally learned since people were picking on me 9 after I was eighty that I would get even so the next person it 10 was in my hometown, the Doubletree Hotel, and he said, here 11 take my bags upstairs. I'm waiting for someone to take my 12 bags upstairs. He said take my bags upstairs, room -- he told 13 me the room. I said I have retired. I've retired. I felt 14 that I had. I deserved to retire. Any way, I walked away 15 from him. 16 Q In your view are we in a dangerous moment in terms of the 17 threat of resegregation in our nation? 18 A Well, I would rather say continued segregation, that is, 19 I don't know if we're going to resegregate, but I think there 20 is a real possibility to continue to desegregate, if you will, 21 the point I'm trying to make there. 22 When you see Charlotte and places like that I think 23 it -- you might be inclined to say we're moving toward 24 resegregation. But I go to Charlotte every month and I know 25 there's strong sentiment against what happened there in 125 1 reserving Swan against Blackenbird. And I think there's a 2 possibility that will not succeed there, the effort to 3 resegregate as it were. 4 On the other hand I am distressed, I'm disturbed by 5 the resistence of the effort to resegregate which you find 6 that all over in various parts of the country, north and 7 south. And I know in order to beat that back, the forces have 8 to be very vigilant, very creative, and energetic, otherwise, 9 you will resegregation. 10 Q In this country has it ever been black people or members 11 of other minority groups, other racial minority groups who have 12 tried to segregate whites? 13 A I don't know of a history -- I don't know of a history 14 where that's been the case. I now and then hear young black 15 students at our universities, historically black universities, 16 which now are desegregating, you see, under court order and 17 there's pressures of all kinds, community pressures. I heard 18 them speak out disdainfully of whites coming to our schools, 19 and I'm appalled by that. I said we didn't come this far -- I 20 said this to them -- we didn't come this far for you to become 21 the bigot. And we have some of that, and it's extraordinary 22 distressing to me to see this happen. It's understandable, I 23 understand it. 24 They don't feel welcome at many of our institutions, 25 many of our flagship institutions. They don't all feel 126 1 welcome. We'll talk about the University of Michigan, I don't 2 know that much -- I only have one degree from the University 3 of Michigan, and it's honorary. I can think of another 4 university where I have an honorary and that's at North 5 Carolina where particular students don't feel welcomed, the 6 black students don't feel welcomed. And they see these 7 monstrous monumental fraternity houses representing the status 8 quo antebellum, you know, and that sort of thing, and they 9 don't feel welcomed. So when they go to their own -- 10 historically black state institutions they think that that's 11 theirs. And they act like it, and they speak like it, and 12 that's so appalling. I think that they -- those other 13 institutions should not be forbidding in their conduct and 14 attitude, and I think black ones should not be either. But 15 they're both in their different ways are ill forces in our 16 society today. The pro segregation for the white schools, 17 white students, and in a black school, for back students, it's 18 an ill wind and I think it blows nobody any good. 19 MS. MASSIE: That's all I have. Thanks. 20 THE COURT: Mr. Payton. 21 CROSS-EXAMINATION 22 BY MR. PAYTON: 23 Q I guess it's good afternoon, Professor Franklin. I 24 actually want to ask you one question as a historian. I think 25 it's fair to say and I don't think there's going to be any 127 1 disagreement that you probably are our most distinguished 2 historian in the United States, and I want to ask you a 3 question with you wearing your hat as our most distinguished 4 historian, and what I want to focus you on is, if I can just 5 take an example, I would bet that a great number of the people 6 in court today did not know some of the things you said, and 7 that probably very few people knew, for example, what the Tulsa 8 Riot was. The question I have is not about the Tulsa Riot, but 9 it's about a whole series of events like that. There wasn't 10 only a riot in Tulsa, there have been riots all over the place. 11 We have had a whole series of horrible events about racism in 12 this country, and you mentioned that in Tulsa it took until 13 1996, for the town to publicly acknowledge what had happened in 14 1921. So my question is: As a historian why does it matter 15 that we know these things about our history of race in this 16 country so we can figure out where we are today, and what we 17 ought for tomorrow, why does it matter that we get through 18 denial, amnesia and forgotten history? 19 A Well, I don't think we can -- I don't think we can do 20 anything about our present or our future unless we know what we 21 have been beforehand, what we know of our past. Now, how do 22 you start to do anything, to take any move toward improvement 23 when you don't know what it is you've got to improve on. I 24 think that it's very, very necessary for us to go through this 25 period of denial, to get over it. And much the same way that 128 1 if you're on the psychiatric couch, you have to tell the doctor 2 what you've been up to in the past, what you've been doing. In 3 that way he can extrapolate from your character and from 4 certain traits that you have and he will help --use to help you 5 get over and into the next stage of your development or life. 6 And I think much in the same way that we have to get over the 7 past in order to function in a healthy fashion in the present 8 and the future. I'm a stanch believer in that, and I'm an 9 advocator of that. 10 When I was working in the middle of the South 11 trying to understand what I regard -- I still regard as kind 12 of a sickness in the South -- I went to a psychiatrist and sat 13 down and talked about this. I didn't know enough psychiatry 14 myself so I thought he could help me because I was convinced 15 that there were some problems that are of emotion and of the 16 mind and that it could not be solved, and could not be 17 understood without the help of people who study diseased 18 minds. And I therefore think it's important for us to 19 understand how our past, to get at the mainstream that 20 movitate us to do things. It's important that we do this, to 21 turn away from that and do something that's a little more 22 healthy. 23 Q Is race the most difficult thing we have to sort of 24 uncover from our past in order to be able to do those things? 25 A I think so; I think so. We've let it become that. We 129 1 treated it from 1619. We have done it to ourselves. It wasn't 2 race that did it. We did it to race. And it's a most 3 important; we made it the most important for us. 4 I can't tell you how many times I have been in the 5 presence of someone, anyone, and I'm not even thinking about 6 race and this person, a white person will say, you know, I 7 want to ask you something about race. Or I -- you know, I've 8 known this black person this many years. One of my best 9 friends are black. I say, all right. Cool it please. I 10 really wasn't interested in that side of a person, that a 11 person is interested in advancing that as a kind of 12 credential. But it's so dominant. And if you try to forget 13 it, you're reminded of it. 14 I go for a long time, I go for hours in the day 15 without thinking about what I am even though I look in the 16 mirror. But those hours of the day are filled with 17 interesting observations made by people who look at me and say 18 -- and remind me of who I am, or what I am. But I'm on my 19 own. 20 MR. PAYTON: Professor Franklin, I want to thank you 21 very much for coming today. 22 THE WITNESS: Thank you. 23 THE COURT: Plaintiff. 24 CROSS-EXAMINATION 25 BY MR. PURDY: 130 1 Q Good afternoon, Professor Franklin. 2 A Good afternoon. 3 MR. PURDY: I have to confess, your Honor, I may be 4 one of the more fortunate ones in the courtroom today because 5 Professor Franklin and I share a home town. We're both from 6 Tulsa, Oklahoma. We've talked about that in the past. And I 7 can also say the description that he's giving you of the 8 school system I'm sure that the mayor today as well as mayors 9 of the past would be very proud to hear about that. And I 10 certainly share in his descriptions of what he's had to say. 11 BY MR. PURDY: 12 Q Professor Franklin, I also want to say that during the 13 course of your testimony this morning I was perhaps most 14 touched by your comment when I believe you were talking about 15 an incident in Alabama and someone was commenting upon what 16 great manners you had and you attributed them to your mother. I 17 think that's something also we can share, because maybe 18 Oklahoma mothers are like that, but they insist on strict 19 manners. So I was pleased to hear that as well. 20 Professor Franklin, I want to go back to one -- you 21 talked about when you were serving as the -- I believe it was 22 the Department Chair at the University of Chicago and you 23 mentioned that you argued -- at one point you were arguing for 24 increasing African-American faculty or members, and you 25 received a comment, please don't forget about the standards; 131 1 do you recall that testimony? 2 A Yes. 3 Q I gather it's safe to say that you are someone who would 4 insist that the same standards apply to every person regardless 5 of his or her race? 6 A Yes. 7 Q Okay. Professor Franklin, you would agree, would you 8 not, that everybody should have a right, an equal right to be 9 involved in any particular enterprise and not be limited 10 because of the color of their skin? 11 A Yes. 12 Q And I -- just from the wonderful lesson that we've had 13 today I gather it's safe to say that no one in this courtroom 14 knows better than you do to be denied the opportunities because 15 of one's race; would that be fair statement? 16 A I would hope so. 17 Q When you were a young man and you were seeking to go to 18 the University of Oklahoma, you were denied that opportunity; 19 were you not? 20 A Yes. 21 Q And you were denied that opportunity because the 22 University of Oklahoma used race as a factor in denying you 23 admission; correct? 24 A They denied me admission because of my race. They didn't 25 use race as a factor. Race was it. 132 1 Q That was the factor? 2 A Yes. 3 Q And it was wrong then; was it not? Terribly wrong, and 4 it would be wrong today; true? 5 A Yes. 6 Q Okay. In fact, I know that you and I had the pleasure of 7 meeting in Durham not that many -- just a couple of months ago, 8 and we had a chance to go over some questions and answers in 9 preparation for your testimony today, I took your deposition; 10 do you recall that? 11 A Yes. 12 Q And you were talking about Carter Woodson, Professor 13 Carter G. Woodson is a fellow colleague of yours, a historian 14 you knew very well; did you not? 15 A He was not a professor, but he was -- Doctor Carter 16 Woodson. He was a Harvard Ph.D., but he was not a teacher. He 17 didn't teacher. 18 Q And we were talking about something that you had written 19 about Doctor Woodson and -- where Doctor Woodson said he had 20 always insisted -- this is you writing about Doctor Woodson -- 21 MS. MASSIE: I would ask that you show him the whole 22 page. 23 MR. PURDY: Oh, absolutely. I'm sorry. I'm sorry. 24 May I approach the witness? 25 THE COURT: You may. 133 1 MR. PURDY: 2 Q If you notice, we had been talking about your book, "Race 3 And History, Selected Essays" by John Hope Franklin, "Selected 4 Essays 1938 to 1988." It was a book if you'll recall you 5 chastised me because I borrowed one from the library. 6 A I wish you had bought it. 7 Q I will. You offered me your copy in Portuguese but that 8 wasn't going to help. 9 But if you can just look at my question on -- 10 beginning on line 14 of that page. And we were talking about 11 a sentence from your book where you were referring to Doctor 12 Woodson and you said. 13 "He had always insisted that men and women should 14 be judged strictly on the basis of their work 15 and not on the basis of their race or the color of 16 their skin." 17 And I asked you if you saw that since and you said 18 yes. And I said do you still agree with it and what was your 19 answer? 20 A Yes. 21 Q I want to talk a little bit about diversity in the 22 educational environment. You spoke today eloquently about how 23 we share experiences and by being together and learning from 24 another. In fact, you can go for decades and years and I 25 gather your own experience on the Commission you continue to 134 1 learn every day as you go through your life about race and the 2 things that divide us; correct? 3 A Yes. 4 Q And I remember that you and I talked about -- let me just 5 ask you this: Is there in your view any minimum number of 6 students of any race who must be present in a classroom either 7 in terms of raw numbers or percentages in order for the 8 educational benefits of diversity to be realized? 9 A I would not able to give you a number. I would say it 10 has to be something like critical mass. I don't know if it's 11 two or three, or four or fifteen, or twenty depending on the 12 size of the class, the content, what's being taught and that 13 sort of thing. I simply would say that it's good for everybody 14 for there to be a mix. And that it's not only good for blacks, 15 it's good for whites, that there be a presence of people of 16 different colors in a learning situation. Especially if 17 they're going to live after that at all, they have to have some 18 kind of experience in a learning situation. 19 Q And I appreciate it, Professor Franklin, and my only 20 question to you is: Are you able to quantify that, whatever 21 that minimum number is -- 22 A No, I'm not able to quantify it. I know that -- I don't 23 think that I was a critical mass. There was no block student 24 in any class that I took in graduate school except for me, and 25 I did not constitute a critical mass. There needs to be more 135 1 than that. How many more, I don't know. 2 I know that when Professor Gay lectured in world 3 economic history and told a Negro joke that my presence there 4 didn't make any difference to him. If I was on one side of 5 the room I didn't think -- there should have been some black 6 on the other side of the room so when he looked over there he 7 would see, you know, there's more than one. He might have had 8 some reaction that would have inhibited him from telling a 9 black joke in my presence, an insulting joke. 10 Q Yes, sir -- 11 A But numbers, I don't know what they should be. 12 Q That incident -- I'm sorry, that was the one when you 13 were in graduate school at Harvard? 14 A Yes. 15 "Q That would have been back in 1930 -- would have 16 been the late 1930s? You got your Ph.D. in 1941 -- 17 A That's right. 18 Q So it would have been in -- 19 A In the '30s, after '36. 20 Q Sure. I asked you when we were together about whether or 21 not the particular racial mix of a school may have anything to 22 do with the quality of the education that a young man or woman 23 could receive from that school. Do you recall some of those 24 questions, generally? 25 A Yes 136 1 Q And I believe you told me that -- I believe I asked you 2 whether or not the different racial mix actually does mean that 3 one school would offer a better educational experience than 4 another and you told me that your view it was not necessarily, 5 is that your view? 6 A Would you repeat that? 7 Q I'll just ask you: Do you believe that because of the 8 different racial mixes at various schools, one necessarily 9 offers a better educational opportunity than the other? 10 A One being what? 11 Q Well, let me give and example. I recall -- I picked -- 12 you had a hundred and twenty-eight schools where you got 13 honorary degrees so I limited myself to that because that's a 14 great large of number of schools. And we were talking about 15 the University of Miami, and we were talking about Bates 16 College as one example. And the University of Miami, and I'll 17 just repeat the numbers from one of the college guides that we 18 were talking about. It has eleven percent black students 19 recently; twenty-nine percent Hispanic students; approximately 20 forty percent students of under-represented minorities; 21 approximately forty-five percent white students; the rest were 22 Asians, Americans, others. And then you had Bates College 23 which you were very familiar with, it has two percent, 24 historically two percent or less of black students, two percent 25 of Hispanic students, and roughly ninety-six percent of the 137 1 rest of the student body is white. And I asked you would the 2 different racial mixes of those schools necessarily make one a 3 better educational experience than the other, and what did you 4 tell me? 5 A I don't know what I told you. I'll tell you what I think 6 now. 7 Q Okay. 8 A And that is it would depend on the students, what kind of 9 students they were, and the kinds of the schools to which they 10 went, in this case those two institutions. I would have some 11 hesitation in comparing the educational experiences one 12 wouldn't get. The University of Miami, do you mean the one in 13 Coral Gables, Florida? 14 Q Yes, the one -- 15 A And the kind of education one might get at Bates College, 16 or wherever. I don't know what percentage of those student at 17 the University of Miami were athletes, let's say. Might have 18 been recruited for athletic purposes. Might have been; I don't 19 know. And that is a consideration which I think is very 20 important in making a determination of the kind of educational 21 experience which they have or which other students might have 22 in their presence. So those are factors which I would suggest 23 that might affect the kind of answer I would give to a question 24 like that. 25 Q Well, let me ask you, certainly you recall -- and I know 138 1 you know from having been at Bates and received an honorary 2 degree from that school as well, that it has a long and 3 distinguished commitment to diversity; does it not, Bates 4 College? 5 A Well, to diversity, I would say it's been open and has 6 admitted students of any race that I know about. 7 Q And you -- 8 A For many years. 9 Q And you place great weight on the traditions at Bates in 10 determining the quality of the education that a young man or 11 woman might receive from that school; correct? 12 A Yes. 13 Q In fact, I believe you told me that the very climate at 14 Bates -- the climate that produced -- in fact, you reminded me 15 Benjamin Maze is a graduate of Bates. You even had a colleague 16 from our home town and I'm going to probably not pronounce -- 17 A George Lithcott. 18 Q George Lithcott, he was a pediatrician; correct, he also 19 went to Bates -- 20 MS. MASSIE: If you could direct Professor Franklin 21 to the page you're talking about, that would be helpful. 22 MR. PURDY: I'm not asking a question from it, I'm 23 just -- 24 THE COURT: You may continue. If you ask a question 25 from it, please show it to him. 139 1 MR. PURDY: Surely. 2 BY MR. PURDY: 3 Q But you told us that was the tradition of Bates even 4 thought it had historically very small African-American 5 enrollment, that the tradition at Bates made it a special 6 place; do you recall that? 7 A Yes. 8 Q In fact, it may be a better place in terms of the 9 educational experience than even Miami for the reasons you just 10 told us about? 11 A Could be. See, I'd have to know the percentage, what 12 constitutes the percentage, that percentage of people at Miami 13 and where they came from, what they were there for. 14 Q But the fact that Bates historically has, say, less than 15 two percent African-American enrollment doesn't mean that you 16 can't get an excellent education at Bates College; correct? 17 A That's right. I'm raising the question about Miami, not 18 about Bates. 19 Q Fair enough. In fact, Professor Franklin, if you have a 20 school that's ninety-eight percent white or ninety-eight 21 percent black, or ninety-eight percent Hispanic, does that 22 inherently create a poor learning environment in your view? 23 A It doesn't create a full learning environment, but it's 24 not the most attractive, and most desirable learning 25 environment for people who come from a society in which the 140 1 proportions are very different. You see my point? You don't 2 see my point. 3 Q Yes, sir. I was letting you finish -- 4 A I was just saying it depends entirely on who makes up 5 that mix, and what they're going to do. I'm not suggesting 6 that a tiny fraction is good or a large number is good 7 necessarily. It is the objective and purpose. 8 You take a place like Bates that's been at this 9 before Miami even heard of blacks, you know really. It makes 10 it seem to me more than simply a mix or a certain number. It 11 takes a mission on the part of the school, the determination 12 to do a certain thing, to accomplish a certain thing. I don't 13 want this to be resolved in terms of merely a number whether 14 it's small or large. I will concede that Bates does 15 enormously well. 16 But Bates is in no better shape than I was in at 17 Harvard, and I think I got a good education at Harvard like 18 through teaching myself, but that's another matter. 19 Q You had a good teacher if you were teaching yourself. 20 A No, I'm just saying these are the situations that we 21 might call -- that we would want for our young people to have. 22 I think I would have done better at Harvard had 23 there been more blacks in my class you see. This is the point 24 I'm making. I think -- and had they been selected with some 25 care. 141 1 Same is true at Miami, had they been selected with 2 care, not a bunch of football players. I don't know what 3 proportion they are, but I'm just saying, we would more than 4 likely be there than at Bates, you see. They more than likely 5 recruit more blacks for football at Miami than there are 6 Bates. I'm sorry, I'm not trying to pull Miami down. That's 7 the reality of it. I have an honorary degree from there, too. 8 But I think if we just talk about numbers alone, I 9 think we're missing something in terms of making a judgment 10 about the quality of education they could get or the purpose 11 of the institution in having these people there. 12 Q Why does being an athlete at Miami disturb you? Why 13 would being a black athlete at Miami disturb you? 14 A Well, for the same reason it disturbed me that many of 15 these institutions are one-sided so far as the education of 16 black is concerned because they go out and recruit -- they 17 recruit athletes. 18 Here is a University "X" let's say that has 19 forty-five blacks in their student body, and forty of them are 20 athletes recruited for the purpose of -- well, I'll put it 21 politely, playing on their team, the other team containing 22 white students. I don't think that's a healthy educational 23 institution -- situation. This is all I'm saying. 24 Q I gather -- 25 A We're not going to talk about just numbers and think 142 1 numbers will do it one way or the other. We have to talk the 2 purpose of the institution, its mission, its objective in 3 having a certain kind of mix. Those are things that mean to me 4 are relevant here. We just can't take numbers as such. 5 Q And I believe that we talked about this before but you 6 certainly oppose using different qualifications to permit 7 athletes to come into a school from others that are 8 non-athletes; correct? You oppose that. 9 A Yes. 10 Q You oppose that for using different qualifications for 11 legacies, you don't think they should have a lower 12 qualification to come to their school? 13 A I'll come to the end that you want me to come to, namely 14 that is, that I believe in using standards that are standards. 15 Q For everyone? 16 A Yes, yes. 17 Q Let my just use one more example that we talked about and 18 if we need to go to the deposition, we'll do it, but I also 19 gave you a hypothetical that I was using you as a counselor to 20 a young man or woman who's going to graduate from high school 21 here in the next year, and I used the hypothetical students 22 from Grand Rapids, Michigan, and again four colleges. It was 23 easy because you've got such a large list from whom you've 24 received an honorary degree. And those colleges are Moorehouse 25 College, which is your father's alma mater; correct? 143 1 A Yes. 2 Q And Hope College here in Michigan. Kalamazoo College 3 here in Michigan, and the University of Michigan. And I asked 4 you -- well, first, we all can agree that as between those four 5 institutions, Moorehouse is probably the most racial homogenous 6 because it's virtually all African-American; do you recall 7 that? 8 A Yes. But if the young man from Grand Rapids decided that 9 he wanted to go Moorehouse he -- given all the qualifications, 10 letters of recommendations, his talents, his grades, his test 11 scores, teacher recommendations, athletic talents, whatever it 12 is that he brings, he gets accepted to all four of those 13 schools, and they're all fine colleges are the not, Doctor 14 Franklin? 15 A Yes. 16 Q If the young man comes to you and says, Doctor Franklin, 17 I'd like to go to Moorehouse, you wouldn't be critical of his 18 decision simply because it's the most racially homogeneous 19 institution; would you? 20 A No. 21 Q In fact, he could get an outstanding education at 22 Moorehouse; correct? 23 A Yes. 24 Q Conversely, if the young man or young woman said, Doctor 25 Franklin, I live in Grand Rapids and I don't want to go that 144 1 far away from home I want to go down to Hope College and Hope 2 College is more than ninety percent white, but if that's what 3 that young student said, you wouldn't be critical if they went 4 there either; would you? 5 A No. 6 Q And they could get an outstanding education at either one 7 of those institutions; isn't that true? 8 A Yes, they could. A different kind of education, but it 9 be outstanding. 10 Q Well, it would be different because they've got different 11 strengths and different weaknesses? 12 A Yeah. 13 Q Professor Franklin, when it comes to universities and 14 college admissions you've been clear, have you not, that you do 15 not support the admission of less qualified minority applicants 16 over more qualified Asian or White applicants? 17 A That's right. 18 MR. PURDY: May I approach the witness, your Honor? 19 THE COURT: You may. 20 MR. PURDY: I'm going to show Professor Franklin, it's 21 a copy of his expert report in this case, and I just want to 22 turn -- because I want to ask him one question and it's just 23 taken from a quote from the report. 24 THE COURT: You may do so, but I -- is it marked? 25 MS. MASSIE: It's 163, and I forgot to move it into 145 1 evidence. 2 THE COURT: Since we're using -- 3 MR. PURDY: I thought that it was. 4 THE COURT: What page are you on? 5 BY MR. PURDY: 6 Q Doctor Franklin, you did attach to your report in this 7 case a copy of the -- what's entitled, "One America, the 21st 8 Century, Forging a New Future," and this, of course, was the 9 Advisory Board's Report to the President of the President's 10 Initiative on Race; correct? 11 A Right. 12 Q And, in fact, you as the chairman, you signed the letter, 13 sent this to President Clinton at the conclusion of the 14 Commission's work; did you not? 15 A That's correct. 16 Q On page 15 there's a bold heading, and it says the 17 following: 18 "Americans share common values and aspirations." 19 Do you see that? 20 A Yes. 21 Q And the first sentence under that is -- or the first few 22 sentences I'd like to discuss with you just briefly. It says, 23 quote. 24 "Some common values and aspirations that American 25 share became evident as we traveled throughout the 146 1 nation. We all share common values, the thirst 2 for freedom, the desire for equal opportunity, a 3 belief in fairness, and the need for a central 4 justice." 5 Did I read that correctly? 6 A That's right. You do well. 7 Q We do share a desire, wouldn't you agree for a nation, 8 where people are given equal opportunities to be treated fairly 9 regardless of race? 10 A As a nation, as a people. Well, in a general way there 11 are people that might object to that. They don't share. They 12 don't desire and share common values. 13 Q But as a nation you do believe that we do, as a nation, 14 as a whole, share those common values, and strive for a nation 15 where people are given equal opportunity and are treated fairly 16 regardless of race; wouldn't that be a fair statement? 17 A As a nation? 18 Q Yes, sir. 19 A Yes , an expression of hope, too. This is a document in 20 which we are trying to represent the notice, the separations of 21 Americans. We might be overlooking some of their derisions and 22 their difficulties. You know, there are people who don't -- 23 people in America who don't share these. This is what I want 24 you to understand. We know that. We knew this when we wrote 25 this. But this is what we hope they would share. We hope that 147 1 they would do this. But we're not speaking for every American. 2 I could say who we're not speaking for, but you know that. 3 A Well, do you agree, Doctor Franklin, that these common 4 values that are discussed on page 15 are values that cross all 5 racial lines? 6 A Yes, they are values that cross all racial lines, but 7 that does not mean that people on one side of the racial line 8 are expressing values which they expect me to have, or you to 9 have, someone else have. When we speak of valuable health 10 care, that's one of the things we want. A good education. 11 Some people don't want me to have a good education, you see. 12 Otherwise, they wouldn't be so penurious about the institution 13 which I go if I happen to be black. They might not want me to 14 have a fulfilling job when there is all this discrimination 15 against them. Read the report. Read the court reports on 16 other countries that are having to spend millions and millions 17 of dollars because they've discriminated. They don't want 18 people to have the same -- a fulfilling job, and financial and 19 personal security, not at all. This is -- I merely tried to 20 make this point that when we say Americans want this, we're 21 aren't talking about every American. This is what we hope 22 Americans share. We hope that they share this. We can't say 23 in the report that we hope your citizens share this. We can't 24 say that we know that these citizens don't share this. But you 25 and I know that they don't. There's plenty of them that don't 148 1 share it. They don't want me to have a decent and fulfilling 2 job. They don't want me to have financial and personal 3 security. They don't want me to have adequate and available 4 health care. You couldn't have the difficulties that people 5 have in this country getting these things, and not -- and say 6 at the same time, we all share. No, this -- as long as you see 7 this as a document that expresses what we want, what we feel 8 that we ought to have, and recognizing the fact that this 9 doesn't represent the unanimous view and position of all 10 Americans. 11 Q Professor Franklin, it shared the hopes and aspiration 12 that we all need. 13 A That's fine. 14 Q And would you also agree that the characterization of 15 people, there are people, no doubt, there are people who don't 16 share those aspirations. 17 A That's right. 18 Q But the people that don't share those also cross all 19 racial lines; do they not? 20 A I suppose so. 21 MR. PURDY: That's all I got, Professor. Thank you, 22 very much for your time. It's good to see you again. 23 THE COURT: Anything further? 24 MS. MASSIE: Just a little bit. 25 THE COURT: Keep in mind -- 149 1 MS. MASSIE: I got you. 2 THE COURT: I mean it's up to you. It's up to you. 3 He has a plane commitment. 4 REDIRECT EXAMINATION 5 BY MS. MASSIE: 6 Q Hello again, Professor. 7 Q On page 63 of the Report, if you'll turn to that for me. 8 I just want to direct your attention quickly to the paragraph 9 that begins with the words, "To realize these benefits...." 10 That first sentence refers to a series of things listed above, 11 and I just want to read those sentences so bear with me. 12 " To varying degrees in the K-12 and higher 13 education contexts, diversity can promote many 14 benefits that occur to all students and society 15 including: improve teaching and learning by 16 providing a range of perspectives that enrich the 17 learning by providing a range of perspectives that 18 enrich the learning environment strengthen 19 students' critical-thinking skills by challenging 20 their existing perspectives; teach students how to 21 interact comfortably with people different than 22 themselves and thereby how to function as good 23 citizens and neighbors; improve students' 24 preparation for employment by teaching them the 25 value of different perspectives, how to function 150 1 in diverse business settings, and how to 2 communicate effectively in our increasingly 3 diverse domestic marketplace and the expanding 4 global marketplace; and foster the advancement of 5 knowledge by spurring study in new areas of 6 concern. 7 "To realize these benefits, we need to promote 8 diversity in our academic institutions and create 9 environments that offer opportunities for students 10 to learn from and about persons who are different 11 than themselves." 12 Did I read that correctly? 13 A Yes. 14 Q If I could turn you to page 94 at the very bottom. 15 A Okay. 16 Q "Affirmative's action continues to be a critical 17 and necessary tool for overcoming past 18 discrimination eliminating disparities in 19 education, and moving us toward the goal of one 20 America." 21 I'm going to skip to the next full paragraph which 22 begins "Critics of" 23 "Critics of affirmative action argue that 30 years 24 of civil rights laws have leveled the playing 25 field and that policies such as affirmative 151 1 action are not longer needed. Still others argue 2 that non-racial factors such as class or poverty 3 should be used instead of race. However, the data 4 we have reviewed demonstrates that for far too 5 many minorities, a level playing field remains a 6 mirage." 7 Did I read that correct? 8 A Yes. 9 Q Mr. Purdy referred you to a sentence in an assay you 10 wrote which came up in your deposition with Carter Woodson, a 11 very famous and prolific and much honored black historian wrote 12 that women and men should be judged by the quality of their 13 work, not by the color of their skin, or by their race; is that 14 right? 15 A Yes. 16 Q Was Carter Woodson an anti-affirmative action -- a 17 proponent of affirmative action? 18 A I don't think so. He was -- he died in 1975, and 19 affirmative action was not on the boards at that time. I would 20 say that he would have been had he been -- he would have been a 21 supporter of affirmative action, I think, had he been here when 22 affirmative action was debated. 23 Q And what's the context for his opinion, raised by Mr. 24 Purdy at your deposition, referred to by him today, what is 25 that not an argument against affirmative action, in your 152 1 opinion? 2 A It's not an argument on affirmative action. He's -- the 3 context is very different, and he's referring to a situation in 4 which they're not talking about integration of schools, he's 5 talking about the individual merits, people as individuals, not 6 as part of a social culture, not members of social 7 institutions. He's talking about the problem of trying to 8 raise standards which have nothing to do with race. As a 9 matter of fact, from his perspective I think he was writing in 10 that area. 11 Q And wasn't he writing in large part about -- and wasn't 12 he writing against the wholesale exclusion of black historians 13 and black intellectuals from the mainstream of academic life in 14 this nation? 15 A That's right. And he was arguing that they have every 16 right to be judged on the basis of their merit and not on some 17 extraneous matter like race and so forth. So it's a different 18 kind of -- it's a different set of arguments altogether. The 19 context is different. 20 MS. MASSIE: Thank you, very much, Professor 21 Franklin. 22 MR. PAYTON: Just one quick little thing here. 23 RECROSS-EXAMINATION 24 BY MR. PAYTON: 25 Q Professor Franklin, the passages that Ms. Massie just 153 1 read to you from your report, page 63, and then something from 2 page 94 and I believe it carried over to page 95, that you 3 followed along with her, those passages about diversity and the 4 need for affirmative action, do you agree with every one of 5 those things she just read? 6 A I'd have go back and look at them, and examine them. 7 Q The ones she just read to you. 8 A But you're saying each and every one -- 9 Q No, just the ones she read to you five minutes ago did 10 you agree with the need to have a diverse environment in higher 11 education, and the need, the continuing need to have 12 affirmative action in our society today? 13 A Yes. 14 MR. PAYTON: Thank you. 15 MR. PURDY: Briefly, your Honor. 16 RECROSS-EXAMINATION 17 BY MR. PURDY: 18 Q Professor Franklin, when you are talking about 19 affirmative action, you're not talking about preferential 20 treatment; are you? 21 A No. 22 Q You're talking about fair treatment? 23 A I'm not talking about the preferential treatment that was 24 -- that's always in affirmative action, but the preferential 25 treatment to which I was a victim -- of which I was a victim 154 1 when I was growing up. I'm not talking about that. It's 2 always been preferential treatment. That's what started all of 3 this in the first place. It was the preference of our society 4 that white people should have, over-privileged and the 5 opportunists. See, that's what preference was. It's always 6 been. 7 Now we talk about preference as though it's a bad 8 thing. Well, I do think it's bad, but I thought it was bad 9 when I wasn't getting it. 10 Q Fair enough. Fair enough. It was bad, it was wrong for 11 the reasons that you told us about this morning preferential 12 treatment was wrong when it happened, and caused you obstacles 13 and placed blocks in the way of things that you wanted to do. 14 It was wrong then; correct? 15 A Yes. 16 Q And it's wrong now. 17 A That's correct. 18 Q And when you talk about affirmative action, Doctor 19 Franklin, you're not talking about preferential treatment. You 20 made that clear, what you're talking about is fair treatment; 21 correct? 22 A Yes. 23 MR. PURDY: That's all I got. Thank you, very much. 24 MS. MASSIE: I have one question. 25 THE COURT: It's your witness, you can have the last 155 1 say. 2 REDIRECT EXAMINATION 3 BY MS. MASSIE: 4 Q Professor Franklin, you said earlier that you thought 5 that segregation and segregation infiltrations exist in our 6 nation have had a improvisational flare to them, do you 7 remember saying that -- 8 A Yes. 9 Q Is the attack on affirmative action the latest 10 improvisation? 11 A Yeah, I think probably it is. 12 THE COURT: Thank you, Professor Franklin. We 13 appreciate you coming. It's been an honor to have been taught 14 and enlightened by you, and I can assure you we appreciate you 15 being here. 16 Have a safe trip. 17 THE WITNESS: Your Honor, thank you, very much. 18 It's a honor to be here. 19 THE COURT: We'll stand in recess on this case until 20 3:15, five minutes shorter than our normal hour and 21 fifteen-minute lunch. 22 (Court in recess, 2:05 p.m.). 23 24 25 156 1 2 CERTIFICATE 3 I, JOAN L.MORGAN, Official Court Reporter for the United 4 States District Court for the Eastern District of Michigan, 5 appointed pursuant to the provisions of Title 28, United States 6 Code, Section 753, do hereby certify that the foregoing 7 proceedings were had in the within entitled and numbered 8 cause of the date hereinbefore set forth; and I do further 9 certify that the foregoing transcript has been prepared by me 10 or under my direction. 11 12 ____________________ JOAN L. MORGAN, CSR 13 Offical Court Reporter Detroit, Michigan 48226 14 15 16 Date: __________________ 17 18 19 20 21 22 23 24 25