Attorney, judge clash over witness

BY ANNA CLARK
Daily News Writer
Published February 7, 2001

DETROIT After University lawyers decided not to call standardized testing expert Claude Steele to the witness stand yesterday, Miranda Massie, lead counsel for the intervening defendants, told U.S. District Judge his refusal to subpoena Steele would make it "impossible" for her to plead her case.

Steele was originally named as a University witness but was not called because his expert testimony on standardized testing would be "unnecessary because of the testimonies of the other witnesses," University Deputy General Counsel Liz Barry said.

Although the intervening defense in the Law School admissions trial still wanted to examine him, Steele decided he did not want to testify.

Massie told Friedman that some means must be taken to bring Steele"s voice to the court. She suggested a teleconference or taped testimony to make it more convenient for Steele, who resides in California, to speak to the court.

She said the only reason the intervenors didn"t put him on their witness list was because they expected to see him on the witness stand when the University called him.

Friedman maintained that Steele cannot be subpoenaed because he is outside the court"s jurisdiction.

"I have no ability to compel him to be here," Friedman told Massie, adding that the intervenors had "months and months" to take Steele"s deposition and chose not to.

Although Friedman closed the matter, Massie made clear that Steele"s testimony was "essential."

"We can"t present our case adequately without that man"s testimony," she said, later telling the judge that the situation is "completely unfair and you"ve made it impossible for us to make our case."

In other testimony yesterday, Emory University Prof. Martin Shapiro described the consistent process of defining standardized test content, selecting specific items on the test, pre-testing potential questions and validating the meaning of the test results.

"The testmakers desire to have a high degree of homogeneity on the test because the test measures a single attribute," Shapiro said.

Shapiro said test results reveal significant gaps that deflate the test"s credibility for predicting academic success. He pointed out that while men receive higher Standardized Aptitude Test scores, women receive higher grade point averages as freshmen.

Shapiro, who also testified in admissions trials in Texas and Georgia, added that the circular process of generating tests causes gaps across gender and racial lines to reappear each year.

Center for Individual Rights lawyer Larry Purdy cross-examined Shapiro, asking why no one, including Shapiro himself, challenged the standardized test companies if the biases were "blatant."

Shapiro said there was never a serious need because affirmative action programs offset the gaps in test results.

"The attack on affirmative action makes all of this relevant and important again," he said.

Before University of Michigan Law Student Connie Escobar finished testifying yesterday, both she and the lawyer questioning her were in tears.

Intervening defense lawyer Jodi Masley shared tissues with her witness as Escobar related her struggles as a lower class minority student.

Escobar was one of three witnesses who testified for the intervening defense yesterday in the trial challenging the Law School"s use of race in admissions.

Escobar, whose parents had less than a first grade education, grew up in a poor neighborhood in Chicago and spoke Spanish as her first language.

When attending Amherst College for undergraduate studies, the college"s president told her that she was "lucky to be here" at orientation, and she said that set the tone for her college experience.

For more than an hour, Escobar spoke on how she lied to Amherst students about her background so she would not confirm stereotypes and how humiliated she felt when a friend saw her neighborhood and later told her hallmates how "shocking" it was.

"That Amherst world," she said, "I thought that was my future and I would just have to get used to it."

Escobar added that although she didn"t have a perfect grade-point average, what she earned "represented progress to me and hard work."