1 PUBLIC COUNSEL MARK ROSENBAUM (State Bar No. 59940) 2 [email protected] AMANDA SAVAGE (State Bar No. 325996) 3 [email protected] 610 S. Ardmore Avenue 4 Los Angeles, CA 90005 Tel: (213) 385-2977 - Fax: (213) 385-9089 5 6 SCHEPER KIM & HARRIS LLP GREGORY A. ELLIS (State Bar No. 204478) 7 [email protected] KATHERINE B. FARKAS (State Bar No. 234924) 8 [email protected] MICHAEL L. LAVETTER (State Bar No. 224423) 9 [email protected] 800 West Sixth Street, 18th Floor 10 Los Angeles, California 90017-2701 Tel: (213) 613-4655 - Fax: (213) 613-4656 11 Additional Counsel listed on next page 12 Attorneys for Plaintiffs 13 SUPERIOR COURT OF THE STATE OF CALIFORNIA 14 COUNTY OF ALAMEDA, RENE C. DAVIDSON COURTHOUSE 15 KAWIKA SMITH, through his guardian ad CASE NO. RG19046222 litem LEILANI REED; GLORIA D., through (Consolidated with RG19046343) 16 her guardian ad litem DIANA I; STEPHEN C., through his guardian ad litem, MARGARET F.; Judge: Hon. Brad Seligman 17 ALEXANDRA VILLEGAS, an individual; GARY W., an individual; CHINESE FOR 18 AFFIRMATIVE ACTION, a nonprofit DECLARATION OF DAVID E. organization; COLLEGE ACCESS PLAN, a KIRKLAND IN SUPPORT OF 19 nonprofit organization; COLLEGE SEEKERS, a PLAINTIFFS’ MOTION FOR nonprofit organization; COMMUNITY PRELIMINARY INJUNCTION 20 COALITION, a nonprofit organization; DOLORES HUERTA FOUNDATION, a Date: August 20, 2020 21 nonprofit organization; and LITTLE MANILA Time: 3:00 p.m. RISING, a nonprofit organization, Dept.: 23 22 Reservation ID: R-2193299 Plaintiff, 23 v. Action Filed: December 10, 2019 24 Trial Date: None Set REGENTS OF THE UNIVERSITY OF 25 CALIFORNIA; JANET NAPOLITANO, in her official capacity as President of the University of 26 California; and DOES 1-100, 27 Defendant. 28 Case No. RG19046222 1 DECLARATION OF DAVID E. KIRKLAND IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION 1 AND RELATED CONSOLIDATED CASES 2 3 EQUAL JUSTICE SOCIETY EVA PATERSON (State Bar No. 67081) 4 [email protected] 5 MONA TAWATAO (State Bar No. 128779) [email protected] 6 LISA HOLDER, EJS Of Counsel (State Bar No. 212628) [email protected] 7 634 S Spring Street, Suite 716 8 Los Angeles, CA 90014Tel: (415) 288-8700 – Fax: (510) 338-3030 9 BROWN GOLDSTEIN LEVY, LLP EVE L. HILL (State Bar No. 202178) 10 [email protected] ABIGAIL A. GRABER (admitted pro hac vice) 11 [email protected] 120 East Baltimore Street, Suite 1700 12 Baltimore, Maryland 21202 Tel: (410) 962-1030 – Fax: (410) 385-0869 13 MILLER ADVOCACY GROUP 14 MARCI LERNER MILLER (State Bar No. 162790) [email protected] 15 1303 Avocado Ave, Suite 230 16 Newport Beach, CA 92660-7804 Tel: (949) 706-9734 – Fax: (949) 266-8069 17 OLIVAREZ MADRUGA LEMIEUX O’NEILL, LLP 18 THOMAS M. MADRUGA (State Bar No. 160421) [email protected] 19 500 South Grand Avenue, 12th Floor Los Angeles, California 90071-2701 20 Tel: (213) 744-0099 – Fax: (213) 744-0093 21 22 23 24 25 26 27 28 Case No. RG19046222 2 DECLARATION OF DAVID E. KIRKLAND IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION EXPERT DECLARATION OF DAVID E. KIRKLAND I, David E. Kirkland, declare as follows: 1. I am Professor of Urban Education and Executive Director for the Metropolitan Center for Research on Equity and the Transformation of Schools at New York University.1 I am a recognized leading expert on issues of social, racial, and gender equity in education, with extensive research experience studying a variety of educational equity issues, from racial disparities across school systems to the interior literacy lives of Black young men and boys. Much of my work has sought to locate and eliminate entrenched systems of bias from formal education practice in the U.S., including in special education placement, exclusionary discipline practice, and high-stakes testing. 2. I received my doctorate in 2006 from Michigan State University and have served on the faculty of New York University for the last fourteen years. 3. Earlier in my career, I served as a secondary school administrator and as a high school English teacher, working closely with some of the most vulnerable student populations in the United States. In this capacity, I advised dozens of students on questions related to college and career transitions, barriers to college access, as well as other intermediary concerns related to life post-high school. Given the college access success rates of my students (14%) as compared to their more privileged peers (~58%), which, for me, further illuminated the gaping racial disparities defining who gets into college and who does not, it has long been clear to me that college access is impeded by systemic racial bias. Perhaps the most evident tool that feeds into this bias is the use of collegiate entrance exams to determine access. 4. My CV is attached as Exhibit A. Built from Bias 5. History and the research literature are clear on the racist origins of college entrance exams. Carl Brigham, a psychologist who helped to develop aptitude tests for the U.S. Army during World War I, was influential in the development of what was then known as the Scholastic Aptitude Test (SAT). At the time, he and other social scientists considered the SAT a new psychological test and a supplement to existing college board exams “to level the playing field for students.” The argument given was that some schools were generally more rigorous than 1 A true and accurate copy of my curriculum vitae is attached as Exhibit A. 1 others. That is, some may offer a broad range of classes, including honors, AP, or IB courses (note that often, the rigorous schools are also the ones that offer students a lot of options). Standardized testing was seen as a way to provide a singular scale on which to judge the academic abilities of all students across a range of educational contexts. Since the test would be the same everywhere, students were thought to be held against one standard. 6. Brigham’s Ph.D. dissertation, written in 1916, “Variable Factors in the Binet Tests,” analyzed the work of the French psychologist Alfred Binet, who developed intelligence tests as diagnostic tools to detect learning disabilities. The Stanford psychologist Lewis Terman relied on Binet’s work to produce today’s standard IQ test, the Stanford-Binet Intelligence Tests. As early as World War I, standardized tests were used to help place 1.5 million soldiers in units segregated by race and by test scores. The tests were scientific, yet even in this early use they were revealed to hold deep biases, a point not lost to researchers and early media reports. 7. In 1917, Terman and a group of colleagues were recruited by the American Psychological Association to help the Army develop group intelligence tests and a group intelligence scale. Thus, Army testing during World War I ignited the most rapid expansion of the school testing movement. By 1918, there were more than 100 standardized tests, developed by different researchers to measure achievement in the principal elementary and secondary school subjects. The U.S. Bureau of Education reported in 1925 that intelligence and achievement tests were increasingly used to classify students at all levels. 8. The first SAT was administered in 1926 to more than 8,000 students, 40 percent of whom were female. The original test lasted 90 minutes and consisted of 315 questions focused on vocabulary and basic math. Unlike the college boards, the SAT was designed primarily to assess aptitude for learning rather than mastery of subjects already learned. For some college officials, an aptitude test, which is presumed to measure intelligence, was appealing since at this time (1926) intelligence and ethnic origin were thought to be connected, and therefore “the results of such a test could be used to limit the admissions of particularly undesirable ethnicities.” 9. By 1930, multiple-choice tests were firmly entrenched in U.S. schools. The rapid spread of the SAT sparked debate along two lines. Some critics viewed the multiple-choice format as an impairment to learning, encouraging memorization and guessing as opposed to critical thought and reason. Others examined the content of the questions and reached the 2 conclusion that the tests were, in fact, racist. Since the beginning of standardized testing, students of color, particularly those from low-income families, suffered the hyper-exclusion and other related discriminatory consequences merited by high-stakes testing in U.S. public education. 10. Eventually, Brigham adapted the Army test for use in college admissions, and his work began to interest administrators at Harvard University. Starting in 1934, Harvard adopted the SAT to select scholarship recipients at the school. Many institutions of higher learning soon followed suit. By the 1950s and 1960s, top U.S. universities were talent-searching for the “best and brightest” youth. However, decades of research demonstrate that Black, Latinx, and Indigenous students, as well as students from some Asian groups, experienced (and continue to experience) bias from standardized tests administered from early childhood through college, particularly college entrance exams such as the SAT. 11. This dictum among universities to identify the brightest students as reflected by test scores did not bode well for students from communities of color, who were—as a result of widespread bias in testing—disproportionately failing state or local high school graduation exams, according to the National Center for Fair and Open Testing, also known as FairTest. According to FairTest research, on average, students of color score lower on college admissions tests; thus, many capable youth are denied entrance or access to so-called “merit” scholarships, contributing to the huge racial gap in college enrollments and completion. 12.