IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
BOSTON DIVISION

STUDENTS FOR FAIR ADMISSIONS, INC.,
Plaintiff, v.
PRESIDENT AND FELLOWS OF HARVARD COLLEGE (HARVARD CORPORATION); and THE HONORABLE AND REVEREND THE BOARD OF OVERSEERS,
Defendants.

Civil Action No. __________
COMPLAINT JURY TRIAL DEMANDED

Plaintiff Students for Fair Admissions, Inc. brings this action to obtain, among other relief, a declaratory judgment under the Declaratory Judgment Act, 28 U.S.C. § 2201, that Defendant President and Fellows of Harvard College (“Harvard Corporation”) and The Honorable and Reverend the Board of Overseers (“Board of Overseers” and together with Harvard Corporation, “Defendants” or “Harvard”) have employed and are employing racially and ethnically discriminatory policies and procedures in administering the undergraduate admissions program at Harvard College in violation of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq. (“Title VI”). Harvard’s undergraduate admissions policies and procedures have injured and continue to injure Plaintiff’s members by intentionally and improperly discriminating against them on the basis of their race and ethnicity in violation of Title VI. I. INTRODUCTION
1. This is an action brought under Title VI of the Civil Rights Act of 1964 to prohibit Harvard from engaging in intentional discrimination on the basis of race and ethnicity. “Classifications of citizens solely on the basis of race are by their very nature

odious to a free people whose institutions are founded upon the doctrine of equality. They threaten to stigmatize individuals by reason of their membership in a racial group and to incite racial hostility.” Shaw v. Reno, 509 U.S. 630, 643 (1993) (citations and quotations omitted). As a consequence, racial classifications are highly disfavored and have been permitted only when there is a compelling government interest that cannot be met through race-neutral means. In the educational setting, “diversity” is the only interest the Supreme Court has found compelling. Even then, the Supreme Court has mandated strict judicial scrutiny to ensure that an academic institution is actually pursuing that interest and that it is absolutely necessary to employ racial preferences in order to achieve a diverse student body.
2. Yet the Supreme Court has always had misgivings about its decision to permit any use of racial preferences in university admissions. See City of Richmond v. J.A. Croson Co., 488 U.S. 469, 518 (1989) (Kennedy, J., concurring in part and concurring in the judgment). The Supreme Court was nevertheless convinced to permit racial preferences in pursuit of diversity for two reasons. First, based mainly on an amicus brief that Harvard submitted, the Supreme Court was led to believe that schools only would “take account of race as one, nonpredominant factor in a system designed to consider each applicant as an individual.” Grutter v. Bollinger, 539 U.S. 306, 387 (2003) (Kennedy, J., dissenting) (citing Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 289-91 (1978)). Second, the Supreme Court believed that the “strict scrutiny standard [would] operate in a manner generally consistent with the imperative of race neutrality, because it forbids the use even of narrowly drawn racial classifications except as a last resort.”
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Croson, 488 U.S. at 519 (Kennedy, J., concurring in part and concurring in the judgment).
3. The Supreme Court was misled. The admissions plan Harvard advocated for in Bakke (the “Harvard Plan”) that promised to treat each applicant as an individual has always been an elaborate mechanism for hiding Harvard’s systematic campaign of racial and ethnic discrimination against certain disfavored classes of applicants. Indeed, the Harvard Plan was created for the specific purpose of discriminating against Jewish applicants. Put simply, Bakke “legitimated an admissions process that is inherently capable of gross abuse and that … has in fact been deliberately manipulated for the specific purpose of perpetuating religious and ethnic discrimination in college admissions.” Alan Dershowitz and Laura Hanft, Affirmative Action and the Harvard College Diversity-Discretion Model: Paradigm or Pretext, 1 Cardozo L. Rev. 379, 385 (1979). Today it is used to hide intentional discrimination against Asian Americans. Harvard is using the same “holistic” code words to discriminate for the same invidious reasons and it is relying on the same pretextual excuses to justify its disparate treatment of another high-achieving racial and ethnic minority group.
4. In any event, even if the Harvard Plan at some point outgrew its discriminatory roots, Harvard has long since abandoned an admissions policy that purported to merely use race contextually to fill the last few seats in the entering freshman class. Harvard now labels every applicant by race on the claim that it is pursuing the so-called “critical mass” diversity objective. That creates two problems for Harvard. First, as it has abandoned the very “plan” that led the Supreme Court to permit the use of racial admissions preferences, Harvard has deprived the Court of any
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continuing “authority to approve the use of race in pursuit of student diversity.” Grutter, 539 U.S. at 394 (Kennedy, J., dissenting). Second, Harvard’s new diversity interest— critical mass—should never have been endorsed and should be outlawed once and for all. “[T]he concept of critical mass is a delusion used … to mask [an] attempt to make race an automatic factor in most instances and to achieve numerical goals indistinguishable from quotas.” Id. at 389.
5. Worse still, Harvard is not even pursuing its claimed “critical mass” interest. Rather, even under governing Supreme Court precedent, Harvard is violating Title VI for at least four reasons. First, Harvard is using racial classifications to engage in the same brand of invidious discrimination against Asian Americans that it formerly used to limit the number of Jewish students in its student body. Statistical evidence reveals that Harvard uses “holistic” admissions to disguise the fact that it holds Asian Americans to a far higher standard than other students and essentially forces them to compete against each other for admission. There is nothing high-minded about this campaign of invidious discrimination. It is “illegitimate racial prejudice or stereotype.” Croson, 488 U.S. at 493.
6. Second, Harvard is engaging in racial balancing. Over an extended period, Harvard’s admission and enrollment figures for each racial category have shown almost no change. Each year, Harvard admits and enrolls essentially the same percentage of African Americans, Hispanics, whites, and Asian Americans even though the application rates and qualifications for each racial group have undergone significant changes over time. This is not the coincidental byproduct of an admissions system that treats each applicant as an individual; indeed, the statistical evidence shows that Harvard
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modulates its racial admissions preference whenever there is an unanticipated change in the yield rate of a particular racial group in the prior year. Harvard’s remarkably stable admissions and enrollment figures over time are the deliberate result of systemwide intentional racial discrimination designed to achieve a predetermined racial balance of its student body.
7. Third, Harvard is failing to use race merely as a “plus factor” in admissions decisions. Rather, Harvard’s racial preference for each student (which equates to a penalty imposed upon Asian-American applicants) is so large that race becomes the “defining feature of his or her application.” Grutter, 539 U.S. at 337. Only using race or ethnicity as a dominant factor in admissions decisions could, for example, account for the remarkably low admission rate for high-achieving Asian-American applicants. Harvard’s admissions decisions simply are not explainable on grounds other than race. High-achieving Asian-American applicants are as broadly diverse and eclectic in their abilities and interests as any other group seeking admission to Harvard. They compete in interscholastic sports, are members of the school band, work part-time jobs after school, travel, and engage in volunteer work just like everyone else. It is not a lack of non-academic achievement that is keeping them from securing admission. It is Harvard’s dominant use of racial preferences to their detriment.
8. Fourth, and last, Harvard is using race in admissions decisions when raceneutral alternatives can achieve diversity. As other elite universities have shown, increased utilization of non-race-based criteria, such as socioeconomic preferences, can promote diversity about as well as racial preferences. This approach is particularly effective when combined with increased use of financial aid, scholarships, and
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recruitment to attract and enroll minority applicants and the elimination of admissions policies and practices, such as legacy preferences and early admission, which operate to the disadvantage of minority applicants. Further, eliminating racial preferences at Harvard will alleviate the substantial harm these discriminatory policies cause to those minority applicants who receive such admissions preferences, the Harvard community, and society as a whole. Racial preferences are a dangerous tool and may only be used as a last resort. There is now overwhelming evidence that race-neutral alternatives render reliance on racial preferences unnecessary. It is incumbent on Harvard to take full advantage of these preferred alternatives.
9. Accordingly, there is no doubt that Harvard is in violation of Title VI. The only question is the proper judicial response. Given what is occurring at Harvard and at other schools, the proper response is the outright prohibition of racial preferences in university admissions—period. Allowing this issue to be litigated in case after case will only “perpetuate the hostilities that proper consideration of race is designed to avoid.” Grutter, 539 U.S. at 394 (Kennedy, J., dissenting). Harvard and other academic institutions cannot and should not be trusted with the awesome and historically dangerous tool of racial classification. As in the past, they will use any leeway the Supreme Court grants them to use racial preferences in college admissions—under whatever rubric—to engage in racial stereotyping, discrimination against disfavored minorities, and quotasetting to advance their social-engineering agenda. Strict scrutiny has proven to be no match for concerted discrimination hidden behind the veil of “holistic” admissions. There may be times when social problems can be solved democratically. But massive resistance to racial equality is not one of them. See Brown v. Bd. of Educ. of Topeka,
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Kan., 349 U.S. 294 (1955). “The moral imperative of racial neutrality is the driving force of the Equal Protection Clause …. Structural protections may be necessities if moral imperatives are to be obeyed.” Croson, 488 U.S. at 518 (Kennedy, J., concurring in part and concurring in the judgment). II. JURISDICTION AND VENUE
10. This action arises under 42 U.S.C. § 2000d et seq. This Court has subject matter jurisdiction under 28 U.S.C. §§ 1331 and 1343.
11. Venue is proper in the District of Massachusetts under 28 U.S.C. § 1391 because the events giving rise to the claims detailed herein occurred in the District of Massachusetts. III. THE PARTIES
A. Plaintiff 12. Plaintiff, Students for Fair Admissions, Inc. (“SFFA”) is an Internal Revenue Code Section 501(c)(3) organization formed for the purpose of defending human and civil rights secured by law, including the right of individuals to equal protection under the law, through litigation and any other lawful means. More specifically, SFFA seeks to promote and protect the right of the public to be free from discrimination on the basis of race in higher education admissions. 13. SFFA is a coalition of prospective applicants and applicants to higher education institutions who were denied admission to higher education institutions, their parents, and other individuals who support the organization’s purpose and mission of eliminating racial discrimination in higher education admissions. SFFA has members throughout the country.
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14. Edward Blum is the President of SFFA. See Exhibit A, Declaration of Edward Blum (“Blum Dec.”) ¶ 2.
15. SFFA has at least one member (“Applicant”) who applied for and was denied admission to Harvard’s 2014 entering class. Blum Dec. ¶ 4.
16. Applicant is Asian American. Blum Dec. ¶ 5. 17. Applicant’s parents are first-generation immigrants to the United States from China. Blum Dec. ¶ 6. 18. Applicant graduated from high school ranked 1 out of 460 students by weighted and un-weighted grade point average. Blum Dec. ¶ 7. 19. U.S. News and World Report ranks Applicant’s high school in the top 5 percent of all high schools in the United States. Blum Dec. ¶ 8. 20. Applicant achieved a perfect score of 36 on the ACT. Applicant achieved a perfect score of 800 for SAT II History and a perfect score of 800 for SAT II Math. Among other academic achievements, Applicant was named an AP Scholar with distinction, a National Scholar, and a National Merit Scholarship semifinalist. Blum Dec. ¶¶ 9-10. 21. While in high school, Applicant participated in numerous extracurricular and volunteer activities. Among other things, Applicant was captain of the varsity tennis team, volunteered at a community tennis camp, volunteered for the high school’s student peer tutoring program, was a volunteer fundraiser for National Public Radio, and traveled to China as part of a program organized by the United States Consulate General and Chinese American Students Education and Exchange to assist students in learning English writing and presentation skills. Blum Dec. ¶ 11.
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22. Applicant was denied the opportunity to compete for admission to Harvard on equal footing with other applicants on the basis of race or ethnicity due to Harvard’s discriminatory admissions policies. Blum Dec. ¶ 12.
23. Applicant was accepted to and has enrolled at a university that is ranked in the Top 20 in the nation by U.S. News and World Report. That university does not grant an admissions preference on the basis of race or ethnicity. Blum Dec. ¶ 13.
24. Applicant is ready, able, and intends to seek to transfer to Harvard when it ceases the use of race or ethnicity as an admissions preference and ceases its intentional discrimination against Asian Americans. Blum Dec. ¶ 14.
25. SFFA has members who are currently in high school and intend to apply for admission to Harvard (“Future Applicants”). Some of these Future Applicants are Asian American. Blum Dec. ¶ 15.
26. Future Applicants will be denied the opportunity to compete for admission to Harvard on equal footing with other applicants on the basis of race or ethnicity due to Harvard’s discriminatory admissions policies. As a result, Future Applicants may be denied admission to Harvard because of these discriminatory policies. Blum Dec. ¶ 16.
27. SFFA has members whose children intend to apply for admission to Harvard (“Parents”). Some of these Parents are Asian Americans. Blum Dec. ¶ 17.
28. Parents’ children will be denied the opportunity to compete for admission to Harvard on equal footing with other applicants on the basis of race or ethnicity due to Harvard’s discriminatory admissions policies. As a result, Parents’ children may be denied admission to Harvard because of these discriminatory policies. Blum Dec. ¶ 18.
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B. Defendants 29. Defendants, the Harvard Corporation and Harvard Board of Overseers govern Harvard University. 30. Harvard University is a private educational institution based in Cambridge, Massachusetts. 31. Harvard College is a component of Harvard University that offers undergraduate, graduate, professional, and research programs in the fields of arts, science, medicine, business, design, and public health. 32. Despite having an endowment of approximately $36.4 billion, Harvard accepts substantial direct financial assistance from the Federal government through, among other things, grants and loans. In 2010, Harvard accepted more than $6.6 million in federal funds. In 2011, Harvard accepted more than $11.9 million in federal funds. In 2012, Harvard accepted more than $20.9 million in federal funds. In 2013, Harvard accepted more than $13.4 million in federal funds. Harvard also has received and will further receive substantial direct financial assistance from the Federal government in 2014. 33. Harvard also accepts substantial indirect Federal financial assistance by, among other things, enrolling students who pay, in part, with Federal financial aid directly distributed to those students. 34. As a recipient of Federal financial assistance, Harvard University, and all of its programs and activities, which includes Harvard College, are subject to Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et. seq.
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IV. HARVARD HAS A LONG HISTORY OF INTENTIONAL DISCRIMINATION ON THE BASIS OF RACE OR ETHNICITY AGAINST DISFAVORED MINORITY APPLICANTS. 35. Discrimination on the basis of race or ethnicity is longstanding at Harvard.
The “Harvard Plan” itself—and the concept of an admissions system based on a “holistic” review of applicants instead of admission based on academic qualifications— was formulated for the specific purpose of discriminating against disfavored minority groups. “Indeed, the historical evidence points inexorably to the conclusion that the current Harvard College admissions system was born out of one of the most shameful episodes in the history of American higher education in general, and of Harvard college in particular.” Alan Dershowitz and Laura Hanft, Affirmative Action and the Harvard College Diversity-Discretion Model: Paradigm or Pretext, 1 Cardozo L. Rev. 379, 385 (1979).
A. 1900s to 1920s: Before “Selective Admissions” 36. Until the early 1920s, Harvard, like all other Ivy League schools, selected its students by admitting applicants who passed a required examination. 37. Because Harvard’s entrance examination was not especially demanding, an applicant for undergraduate admission with average intelligence from a prominent school could usually pass with ease. 38. Though the performance of some students placed them in a gray zone from which they could be admitted “with conditions,” most applicants were admitted based solely on objective academic criteria. 39. Under this system, the number of students entering Harvard fluctuated, sometimes quite widely, from year to year.
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40. Harvard’s student body during this time period was fairly homogenous in terms of class, race, religion, and ethnicity. Students during this time period were overwhelmingly from affluent backgrounds, almost exclusively white, and composed largely of graduates of elite private secondary schools.
41. Harvard was considered somewhat open to African Americans, immigrants, and foreigners, though the numerical presence of each of these groups of students on campus was relatively small.
B. 1920s to 1930s: Harvard’s “Jewish Problem” 42. Ivy League schools began to reevaluate their admissions systems when students deemed socially “undesirable”—most prominently, Jewish applicants—started to pass the examinations and enroll in greatly increasing numbers. 43. In or around the late 1910s, the number of Jewish students enrolling at Harvard began to increase, and Harvard administrator determined that the college had a “Jewish problem” that it needed to address. 44. By 1918, Harvard’s freshman class was 20 percent Jewish, three times the percentage at Yale and six times that at Princeton. 45. The President of Harvard, A. Lawrence Lowell, was deeply troubled by this rising Jewish population. 46. President Lowell feared that the enrollment of too many Jewish students would cause students from Protestant upper and upper-middle class families to choose other elite colleges over Harvard.
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47. In 1920, in a letter to William Hocking, a Harvard philosophy professor, President Lowell wrote that the increasing number of Jewish students enrolling at Harvard would ultimately “ruin the college.”
48. To combat this “Jewish problem,” President Lowell sought to institute a cap on Jewish enrollment in each entering class.
49. In his letter to Hocking, President Lowell stated that the best approach would be “to state frankly that we thought we could do the most good by not admitting more than a certain proportion of men in a group that did not intermingle with the rest, and give our reasons for it to the public.” According to Lowell, “[e]xperience seems to place that proportion at about 15%.”
50. Yet President Lowell knew that such overt discrimination would meet resistance. He believed that the faculty, and probably the governing boards, would prefer to make a rule whose motive was less obvious on its face, such as giving to the Committee on Admission authority to refuse admittance to persons who possessed particular qualities believed to be characteristic of Jewish applicants.
51. If such a system was instituted, however, President Lowell wished to ensure that the faculty knew “perfectly well what they are doing, and that any vote passed with the intent of limiting the number of Jews should not be supposed by anyone to be passed as a measurement of character really applicable to Jews and Gentiles alike.”
52. By the spring of 1922, the proportion of Jewish students had reached 21.5 percent. President Lowell warned that unless immediate measures were taken “the danger would seem to be imminent.”
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53. President Lowell made clear that absent the rise in Jewish enrollment, no change in Harvard’s admissions policies would be needed. The problem was not with the academic method of selection per se, but with its results: it was now yielding too many Jewish students at Harvard.
54. In a 1922 letter President Lowell wrote: “We can reduce the number of Jews by talking about other qualifications than those of admission examinations. If the object is simply to diminish the Jews, this is merely an indirect method of avoiding a problem in American life which is really important. This is the feeling of the most thoughtful people here, both gentile and Jew. On the other hand, we are in no present danger of having more students in college than we can well take care of; nor, apart from the Jews, is there any real problem of selection, the present method of examination giving us, for the Gentile, a satisfactory result.”
55. In May 1922, Professor Ropes proposed that the Committee on Admission “take into account the proportionate size of racial and national groups in the membership of Harvard College,” declaring that “it is not desirable that the number of students in any group which is not easily assimilated into the common life of the College should exceed 15 percent of the whole college.”
56. As one Harvard alumnus noted, “I am fully prepared to accept the judgment of the Harvard authorities that a concentration of Jews in excess of fifteen percent will produce a segregation of culture rather than a fusion.”
57. President Lowell’s plans received pushback. One petition, signed by 31 faculty members, described the “action of the Faculty relating to controlling the percentage of the Jews in Harvard College” as “a radical departure from the spirit and
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practice of the College” and declared “that racial consideration should not influence the Committee on Admission before a careful and deliberate study of the whole question of the Jews shall be made by the Faculty.”
58. At the same time, Harvard was beginning to gather the information that would permit it to identify which applicants were Jewish.
59. Starting in the fall of 1922, applicants were required to answer questions on “Race and Color,” “Religious Preference,” “Maiden Name of Mother,” and “Birthplace of Father,” as well as the question, “What change, if any, has been made since birth in your own name or that of your father? (Explain fully.)”
60. In addition, Harvard asked high school principals and private school headmasters to fill out a form indicating “by a check [the applicant’s] religious preference so far as known . . . Protestant . . . Roman Catholic . . . Hebrew . . . Unknown.”
61. Harvard also created a committee tasked with counting the number of Jewish students at Harvard.
62. After analyzing all the student information it could obtain, the committee began classifying each Harvard student into one of four categories: “J1,” “J2,” “J3,” and “other.” A “J1” was assigned “when the evidence pointed conclusively to the fact that the student was Jewish;” a “J2” was assigned when a “preponderance of evidence” suggested the student was Jewish; and a “J3” was assigned when “the evidence suggested the possibility that the student might be Jewish.”
63. During this time period, Harvard also adopted a “one-seventh plan,” which purported to target “a new group of men from the West and South” who were in the top
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seventh of their graduating class. In reality, however, it was a “thinly disguised attempt to lower the Jewish proportion of the student body by bringing in boys—some of them academically ill equipped for Harvard—from regions of the country where there were few Jews.”
64. After President Lowell’s intentions of imposing a Jewish cap became known to the public, opponents began mobilizing opposition.
65. In 1923, Harvard’s Committee on Methods of Sifting Candidates for Admission defeated President Lowell’s requests for a cap on Jewish enrollment. In doing so, the committee issued a statement indicating its opposition to “an arbitrary limitation of the number of students to be admitted” and specifying that “if the size of our Freshman class is to be reduced, the reduction can best be accomplished by raising the standard for admission.”
66. Despite this defeat, President Lowell pressed forward. In June 1923, he commissioned a study to determine “whether it might be wise to limit the number of students admitted to the Freshman class to one thousand.”
67. President Lowell realized that a ceiling on the size of the class was the necessary precondition for addressing the “Jewish problem,” for as long as Harvard had an absolute standard of admission, discretionary selection policy using nonacademic as well as academic criteria would not be possible.
68. Lowell’s proposal “signaled the beginning of a new, more subtle campaign to restrict Jewish enrollment.”
69. By the end of 1923, President Lowell’s committee issued a report recommending a limit of 1,000 on the size of the freshman class and additional changes
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in the criteria for admission. Instead of making decisions based on academic achievement, the committee proposed using letters from teachers and personal interviews to shed light on the candidates’ “aptitude and character.” However, no changes were made in 1923.
70. By 1924, Harvard’s Jewish enrollment had risen to 25 percent. 71. According to President Lowell, Harvard’s “reputation of having so many Jews” was hurting its ability to “attract applicants from western cities and the great preparatory schools.” 72. By 1925, the dean’s office reported that the proportion of known Jewish freshmen (the J1s and J2s) had risen to 27.6 percent, with an additional 3.6 percent in the J3 category. 73. As President Lowell was contemplating these figures, he was receiving letters from alumni castigating the school for being overrun by Jewish students. Among these letters was one from W.F. Williams ’01, who had attended a recent Harvard-Yale football game. Williams recommended using the school’s admissions program to discretely limit the number of Jewish students enrolling at Harvard: “Naturally, after twenty-five years, one expects to find many changes but to find that one’s University had become so Hebrewized was a fearful shock. There were Jews to the right of me, Jews to the left of me, in fact they were so obviously everywhere that instead of leaving the Yard with pleasant memories of the past I left with a feeling of utter disgust of the present and grave doubts about the future of my Alma Mater . . . . The Jew is undoubtedly of high mental order, desires the best education he can get CHEAPEST, and is more persistent than other races in his endeavors to get what he wants. It is self evident, therefore, that
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by raising the standard of marks he can’t be eliminated from Harvard, whereas by the same process of raising the standard ‘White’ boys ARE eliminated. And is this to go on? Why the Psychology Test if not to bar those not wanted? Are the Overseers so lacking in genius that they can’t devise a way to bring Harvard back to the position it always held as a ‘white man’s’ college?”
74. President Lowell agreed with Williams’ assessment, responding that he “had foreseen the peril of having too large of a number of an alien race and had tried to prevent it,” but that “not one of the alumni ventured to defend the policy publicly.” President Lowell was “glad to see from your letter, as I have from many other signs, that the alumni are beginning to appreciate that I was not wholly wrong three years ago in trying to limit the proportion of Jews.”
75. Despite increasing alumni approval, President Lowell still faced significant obstacles to his plan. He needed Harvard’s “Special Committee on the Limitation of the Size of the Freshman Class” to approve his new admissions plan.
76. In a letter to the chairman of the committee, President Lowell wrote that “questions of race,” though “delicate and disagreeable,” were not solved by ignoring them. The solution was a new admissions system giving the school wide discretion to limit the admission of Jewish applicants: “To prevent a dangerous increase in the proportion of Jews, I know at present only one way which is at the same time straightforward and effective, and that is a selection by a personal estimate of character on the part of the Admissions authorities, based upon the probable value to the candidate, to the college and to the community of his admission. Now a selection of this kind can be carried out only in case the numbers are limited. If there is no limit, it is impossible to
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reject a candidate who passes the admissions examinations without proof of defective character, which practically cannot be obtained. The only way to make a selection is to limit the numbers, accepting those who appear to be the best.”
77. Anticipating pushback, President Lowell insisted that he was not proposing to discriminate against Jewish applicants. Instead, he sought “discrimination among individuals in accordance with the probable value of a college education to themselves, to the University, and the community,” carefully adding that “a very large proportion of the less desirable, upon this basis, are at the present time the Jews.”
78. The committee’s chairman was initially opposed, stating that “[e]verything in my education and bringing up makes me shrink from a proposal to begin a racial discrimination at Harvard—there’s no use my pretending this isn’t the case.”
79. In the end, however, the chairman agreed with President Lowell’s notion of “a sound and discerning ‘discrimination’ among individuals” and expressed confidence that “such a discrimination would inevitably eliminate most of the Jewish element which is making trouble.”
80. Nevertheless, the chairman refused to endorse “a candid regulation excluding all but so many or such a proportion of ‘Jews.’” Instead, he advised President Lowell that more subtle measures to exclude Jewish applicants would be a wiser approach.
81. In its report, the Committee made multiple recommendations along these lines. First, the committee recommended that Harvard limit its incoming class to just 1,000 students. Second, it recommended that “the application of the rule concerning candidates from the first seventh of their school be discretionary with the Committee on
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Admission.” This modification would allow the committee to eliminate from the program high schools that sent too many Jewish students to Harvard.
82. Finally, and most important, the committee rejected an admissions policy that would select the 1,000 students on the basis of scholarship alone. According to the committee, it was “neither feasible nor desirable to raise the standards of the College so high that none but brilliant scholars can enter” and “the standards ought never to be too high for serious and ambitious students of average intelligence.”
83. Not only did the faculty adopt these proposals, but it also approved measures making the admissions process even more subjective.
84. In particular, the faculty called on the admissions committee to interview as many applicants as possible to gather additional information on “character and fitness and the promise of the greatest usefulness in the future as a result of a Harvard education.”
85. In addition, Harvard began requiring a passport-sized photo “as an essential part of the application for admissions.”
86. Harvard also began using “legacy” preferences for the children of alumni as a strategy for reducing the admission of Jewish students.
87. President Lowell was elated by these changes, realizing that they “provided a tremendous opportunity to impose, at long last, the policy of restriction he had favored since 1922.”
88. The reduction in Jewish enrollment at Harvard was immediate. The Jewish portion of Harvard’s entering class dropped from over 27 percent in 1925 to 15 percent the following year.
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89. For the next 20 years, this percentage (15 percent) remained virtually unchanged.
90. Harvard’s new system of selection was far more complicated than the exam-based system that had preceded it, and implementing it required a new bureaucratic apparatus of information gathering and assessment.
91. In addition to expanding its administrative staffing apparatus, the new Office of Admissions needed to collect vast quantities of data formerly unnecessary.
92. The development of a procedure for identifying Jewish applicants was only the first step. For the first time, candidates were asked to fill out lengthy applications that included demographic information, a personal essay, and a detailed description of extracurricular activities that might demonstrate “leadership” and reveal something about their “character.”
93. The centerpiece of the new system was the personal letter of recommendation, especially those from trusted sources such as alumni and headmasters or teachers from the leading feeder schools.
94. Finally, to ensure that “undesirables” were identified and to assess important but subtle indicators of background and breeding such as speech, dress, deportment, and physical appearance, a personal interview was required, a final screening device usually conducted by the Director of Admissions or a trusted alumnus.
95. The new policy permitted the rejection of scholastically brilliant students considered “undesirable,” and it granted the director of admissions broad latitude to admit those of good background with weaker academic records.
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96. The key code word used was “character”—a quality thought to be frequently lacking among Jewish applicants, but present congenitally among affluent Protestants.
97. By emphasizing the inherently subjective character of admissions decisions, Harvard’s new system of selection left it free to adapt to changing circumstances by admitting—and rejecting—whomever it wished.
98. These tools gave admissions officials the power to discriminate, ostensibly on the basis of “objective” evidence. Any number of reasons could be invoked to deny an applicant. “Selective admissions deflected much criticism precisely because it singled out no single status as ‘key.’”
99. As a consequence, university leaders could deny the existence of any racial or religious quotas, while still managing to reduce Jewish enrollment to a much lower level, and thereafter hold it essentially constant during the decades that followed.
C. 1930s to 1960s: A Continuation of Policies 100. In the 1930s, Harvard continued the discriminatory admissions policies instituted during the previous decade. 101. Instrumental during this time period was Richard Gummere, who served as Harvard’s Chairman of the Committee on Admission from 1934 to 1952. 102. Gummere continued to use Harvard’s opaque admissions system to limit the number of Jewish students enrolling at Harvard. 103. The key was secrecy. In 1922, when he was headmaster of William Penn Charter School in Philadelphia, Gummere had recommend that Harvard follow the approach he had employed at his own school: “I feel that Doctor Edsall [a Harvard
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faculty member] has stated the case very correctly and intelligently, as far as the experiences of the Penn Charter School in the Jew problem are concerned. Such action was taken very definitely, and a very limited number of Jews is admitted; in fact, it is at present almost infinitesimal. We are particularly careful not to make any issue of the matter, and when people of that persuasion wish to be admitted, and we either have enough in the school, or do not feel that the applicant is satisfactory, we employ the same methods of keeping them out of the school as we would any unsatisfactory candidate of any denomination. As a matter of fact, I admitted only one Jew last fall, and plan to admit none this coming fall.”
104. Gummere continued the policies of the prior decade laid down by President Lowell, including the establishment of a fixed number of places in the freshman class and a clear statement to both applicants and the public that candidates would not be accepted on academic ability alone.
105. Instead, a multiplicity of nonacademic criteria—alumni connections, athletic talent, geographical diversity, and vague qualities such as “character” and “leadership”—played a pivotal role in determining admission.
106. Similarly, Gummere reported that “increased emphasis is being put on the preliminary interviews.” Rather than subjecting undesirable applicants, many of them Jewish, to a formal rejection, the committee preferred to discourage them—politely but firmly—from submitting a final application.
107. For example, in 1936, Irving B. Rosenstein, a Jewish alumnus who had graduated first in his class at Harvard, contacted Dean Hanford about two young Jewish men who were applying for admission. Hanford took notes during his conversation but
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did not pass on an endorsement. Instead, he wrote directly to Gummere, stating that “I do not know either Goldberg or Rabinowitz, and I realize that we have quite enough applicants of this type.” Nevertheless, Hanford continued, “I felt it my duty to pass along the information that Rosenstein had given me regarding the two boys.”
108. In another case, Jerome Greene, secretary to the Harvard Corporation, explained why a young Jewish man named S. A. Goldstein, who reportedly had high marks on his College Board exams, had been turned down. Mr. Goldstein “came just under the ‘weighted average,’ which takes all pertinent factors into account.” Harvard, he declared, had “no reason to suppose that he is not a creditable representative of his race, many members of which are admitted to Harvard each year.” He closed his letter by assuring that “no personal discrimination against him was involved.”
109. During this time period, Harvard continued to accept mainly wealthy, Protestant applicants who could pay the tuition and meet minimal standards. Harvard filled approximately 75 to 80 percent of the seats with individuals who could afford to pay the full tuition, and fewer than 13 percent of legacy applicants were rejected.
110. In the late 1940s and early 1950s, following World War II, American public sentiment turned against anti-Semitism, and Harvard began to gradually reduce its discrimination against Jewish applicants.
111. Harvard, however, retained the admissions policies that it had used to successfully cap Jewish enrollments in the past.
112. In a 1952 report from the Harvard Committee on Admissions, the Dean of Admissions wrote that Harvard was “one of the few colleges with ‘snob’ appeal.” Accordingly, it attracted the children of the “upper-upper” class throughout the country
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who were “almost entirely paying guests.” It was possible, he acknowledged, that “a third or half of this group, strictly on their merits in terms of SAT scores, character and personality, was not particularly desirable.” But if Harvard rejected them, it “would lose most of the rest of the group, including a lot of able and desirable students.”
113. Similarly, allegations that Harvard was “dominated by Jews” could cause “students from upper-income, business backgrounds” to abandon Harvard for “colleges like Yale, Princeton, Dartmouth, Williams, etc.”
114. By the 1960s, Harvard was using a complex “docket system” of classifications to process each candidate.
115. The docket system created 22 groups, ranging from the huge (Docket B, which covered eight Rocky Mountain states) to the very small (Docket P, limited to Boston Latin, and Docket Q, which covered the rest of metropolitan Boston).
116. The docket system generated “targets” for each docket that proved strikingly close to the actual number of students admitted each year. Each docket was admitted at a different rate.
117. For example, Docket D (covering the upper Midwest) had about a 25 percent acceptance rate. By contrast, Docket M (“Select New England private schools”) and Docket L (“Exeter and Andover”) were admitted at a rate of 44 and 46 percent respectively, compared to just 20 percent for all applicants.
118. The structure of this system ensured that competition would be almost entirely within rather than between dockets.
119. The generous targets for some dockets were designed to insulate applicants from competition with other dockets while the restrained targets for others
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were intended to guarantee that the number of students admitted would not upset Harvard’s delicate “balance.”
120. At this time Harvard also used a second system of classification to rate each applicant individually along four dimensions: personal, academic, extracurricular, and athletic.
121. The “personal” rating was critical. According to Harvard’s own statistical studies, the personal rating was a stronger predictor of which candidates would ultimately be admitted than the more objective academic rating. A “4” rating (“generally acceptable”) was all but fatal, with a rejection rate of 98 percent; a “1” was a virtual guarantee of admission, with a rejection rate of just 2.5 percent.
122. Finally, at this time Harvard used a third major scheme to divide applicants into 12 categories. This “typology,” as Harvard called it, was an integral part of each student’s file. Each candidate was assigned a code letter that was shorthand for the social type he was thought to embody.
123. Under this typology, every candidate was placed in one of the following categories:
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1

S First-rate scholar in Harvard departmental terms.

2

D

Candidate’s primary strength is his academic strength, but it doesn’t look strong enough to qualify as an S (above).

All-American – healthy, uncomplicated athletic strengths and style,

3

A perhaps some extracurricular participation, but not combined with

top academic credentials.

4

W

Mr. School – significant extracurricular and perhaps (but not necessarily) athletic participation plus excellent academic record.

Cross-country style – steady man who plugs and plugs and plugs,

5

X won’t quit when most others would. Gets results largely through

stamina and consistent effort.

6

P

PBH [Phillips Brooks House] style: in activities and personal concerns.

7

C Creative in music, art, writing.

8

B Boondocker – unsophisticated rural background.

9

T Taconic – culturally depressed background, low income.

10

K Krunch – main strength is athletic, prospective varsity athlete.

Lineage – candidate probably couldn’t be admitted without the

11

L extra plus of being a Harvard son, a faculty son, or a local boy with

ties to the university community.

12

O Other – use when none of the above are applicable.

124. With only minor modifications, Harvard used this typology through at least 1988, which includes the period when Harvard submitted its description of the “Harvard Plan” to the Supreme Court in its Bakke amicus brief.

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V. HARVARD HAS USED AND CONTINUES TO USE AN APPLICANT’S RACE AND ETHNCITY AS A FACTOR IN ADMISSION DECISIONS. 125. Harvard has long expressly considered the race and ethnicity of applicants
in making admissions decisions in ways that go far beyond its systematic discrimination against Jewish applicants.
126. In 1926, Harvard’s Chairman of Admissions, Henry Pennypacker, described how race would be considered under Harvard’s new subjective admissions policies: “Race is a part of the record. It is by no means the whole record and no man will be kept out on grounds of race; but those racial characteristics which make for race isolation will, if they are borne by the individual, be taken into consideration as a part of that individual’s characteristics under the test of character, personality and promise. That if there should result in fact any substantial change in the proportion of groups in the College following application of the test, this will be due, not to race discrimination or any quota system, but to the failure of particular individuals to possess as individuals those evidences of character, personality and promise which weighed with other evidences render them more fit than other individuals to receive all that Harvard has to offer. Of course there will be criticisms. It will be said that Harvard is discriminating on grounds of race. That will not be true.”
127. In the early 1960’s, Harvard began actively seeking to increase the number of African-American students on its campus. Notwithstanding this concerted effort, African-American enrollment stagnated until 1968.
128. In 1968, Harvard altered its admissions policies and practices to admit more African Americans by taking into greater account the limitations of background and schooling that shaped the qualification of many African-American applicants.
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129. Under this new policy, an applicant who had “survived the hazards of poverty” and showed that he or she “is clearly intellectually thirsty” and “still has room for more growth” was given an admissions preference.
130. In 1969, one year after this policy change, Harvard’s African-American enrollment increased 76 percent over the prior year to 7 percent of the enrolled freshman class. Although Harvard denied that it had instituted a quota, the enrollment rate consistently averaged 7 percent over the next several years.
131. In 1969, a majority of the African-American applicants admitted to Harvard came from socioeconomically challenged backgrounds. By 1973, however, this number had decreased dramatically, with 75 to 80 percent of the African Americans admitted to Harvard coming from backgrounds that did not include “the hazards of poverty.”
132. According to Dean Peterson, Harvard diminished its focus on applicants with disadvantaged backgrounds because African Americans from relatively privileged backgrounds allegedly made the transition to Harvard more easily than those from working class and poor backgrounds: “We have learned” that “we cannot accept the victims of social disaster, however deserving of promise they once might have been, or however romantically or emotionally an advocate (or a society) might plead for him.”
133. In 1978, Harvard submitted an amicus brief to the Supreme Court in Regents of the University of California v. Bakke that included a copy of the “Harvard College Admissions Program” as an Appendix.
134. The “Harvard College Admissions Program” submitted to the Supreme Court in Bakke stated that “for the past 30 years the Committee on Admissions” has
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“adopted … [t]he belief … that if scholarly excellence were the sole or even predominant criterion, Harvard College would lose a great deal of its vitality and intellectual excellence and that the quality of the educational experience offered to all students would suffer.”
135. The “Harvard College Admissions Program” submitted to the Supreme Court in Bakke further stated: “The belief that diversity adds an essential ingredient to the educational process has long been a tenet of Harvard College admissions. Fifteen or twenty years ago, however, diversity meant students from California, New York, and Massachusetts; city dwellers and farm boys; violinists, painters and football players; biologists, historians and classicists; potential stockbrokers, academics and politicians. The result was that very few ethnic or racial minorities attended Harvard College. In recent years Harvard College has expanded the concept of diversity to include students from disadvantaged economic, racial and ethnic groups. Harvard College now recruits not only Californians or Louisianans but also blacks and Chicanos and other minority students. Contemporary conditions in the United States mean that if Harvard College is to continue to offer a first-rate education to its students, minority representation in the undergraduate body cannot be ignored by the Committee on Admissions.”
136. The “Harvard College Admissions Program” submitted to the Supreme Court in Bakke further stated: “In practice, this new definition of diversity has meant that race has been a factor in some admission decisions. When the Committee on Admissions reviews the large middle group of applicants who are ‘admissible’ and deemed capable of doing good work in their courses, the race of an applicant may tip the balance in his favor just as geographic origin or a life spent on a farm may tip the balance in other candidates’
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cases. A farm boy from Idaho can bring something to Harvard College that a Bostonian cannot offer. Similarly, a black student can usually bring something that a white person cannot offer. The quality of the educational experience of all the students in Harvard College depends in part on these differences in the background and outlook that students bring with them.”
137. The “Harvard College Admissions Program” submitted to the Supreme Court in Bakke further stated: “In Harvard College admissions the Committee has not set target-quotas for the number of blacks, or of musicians, football players, physicists or Californians to be admitted in a given year. At the same time the Committee is aware that if Harvard College is to provide a truly heterogeneous environment that reflects the rich diversity of the United States, it cannot be provided without some attention to numbers. It would not make sense, for example, to have 10 or 20 students out of 1,100 whose homes are west of the Mississippi. Comparably, 10 or 20 black students could not begin to bring to their classmates and to each other the variety of points of view, backgrounds and experiences of blacks in the United States. Their small numbers might also create a sense of isolation among the black students themselves and thus make it more difficult for them to develop and achieve their potential. Consequently, when making its decisions, the Committee on Admissions is aware that there is some relationship between numbers and achieving the benefits to be derived from a diverse student body, and between numbers and providing a reasonable environment for those students admitted. But that awareness does not mean that the Committee sets a minimum number of blacks or of people from west of the Mississippi who are to be admitted. It means only that in choosing among thousands of applicants who are not only
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‘admissible’ academically but have other strong qualities, the Committee, with a number of criteria in mind, pays some attention to distribution among many types and categories of students.”
138. The “Harvard College Admissions Program” submitted to the Supreme Court in Bakke further stated: “The further refinements sometimes required help to illustrate the kind of significance attached to race. The Admissions Committee, with only a few places left to fill, might find itself forced to choose between A, the child of a successful black physician in an academic community with promise of superior academic performance, and B, a black who grew up in an inner-city ghetto of semi-literate parents whose academic achievement was lower, but who had demonstrated energy and leadership, as well as an apparently abiding interest in black power. If a good number of black students much like A, but few like B, had already been admitted, the Committee might prefer B, and vice versa. If C, a white student with extraordinary artistic talent, were also seeking one of the remaining places, his unique quality might give him an edge over both A and B. Thus, the critical criteria are often individual qualities or experience not dependent upon race but sometimes associated with it.”
139. In 2003, Harvard submitted an amicus brief to the Supreme Court in Grutter v. Bollinger.
140. The Grutter amicus brief stated that Harvard “considers an academically qualified student’s race or ethnicity as one among many factors in a carefully designed, competitive admissions process that views each applicant as an individual and weighs the capacity of each to contribute to the class as a whole.”
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141. The Grutter amicus brief further stated that Harvard seeks “racial and ethnic diversity as a natural part of a long and expanding policy of inclusion” and that it “has been pursuing the idea of student diversity for a period that dates back to the nineteenth century.” That includes the period when Harvard was discriminating against Jewish and other disfavored minority groups.
142. The Grutter amicus brief further stated that a racial or ethnic admissions “quota” is “impermissible as an affront to the equal dignity of the excluded” and it defined a “quota” as a “policy that “exclude[s] someone altogether from a given position or opportunity on account of the individual’s race.”
143. In 2012, Harvard submitted an amicus brief to the Supreme Court in Fisher v. University of Texas at Austin.
144. The Fisher amicus brief stated that Harvard has “long used admissions policies similar to the Harvard Plan that Justice Powell approved in [Bakke] and the University of Michigan Law School plan upheld in Grutter.”
145. The Fisher amicus brief further stated that Harvard “consider[s] all aspects of an applicant’s background and experience, including in some circumstances the applicant’s racial or ethnic background.”
146. The Fisher amicus brief further stated that Harvard believes that “racial and ethnic diversity are a distinct kind of difference in background, and reliance on … race-neutral measures alone cannot substitute for individualized, holistic review that takes account of race and ethnicity.”
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147. In other words, it is now Harvard’s position that race or ethnicity itself— not other factors that may be associated with race or ethnicity—is a distinguishing characteristic that warrants consideration in the admissions process. VI. HARVARD HAS A LONG HISTORY OF INTENTIONALLY
DISCRIMINATING SPECIFICALLY AGAINST ASIAN AMERICANS. 148. Harvard started considering Asian-American students a discrete subset of its undergraduate applicant pool in the early 1970s. 149. At that juncture, Harvard took the position that Asian Americans students were not “under represented” on its campus and therefore were not in need of “affirmative action.” Harvard nevertheless included Asian Americans in its affirmativeaction compliance reports to the Federal government. 150. Like Jewish applicants, Asian-American applicants tended to have superior academic records, and were well represented among the most successful students. 151. Harvard came to the conclusion that Asian Americans were “overrepresented” in its student body. 152. According to Henry Rosovsky, Harvard’s Dean of the Faculty of Arts and Sciences (and later Acting President), Asian-American students were “no doubt the most over-represented group in the university.” 153. In 1974, a group calling itself the Coalition of Asian Americans (“CAA”) formed at Harvard. For at least two years, Harvard refused to recognize the CAA as a minority student organization.
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154. In 1976, Harvard continued to refuse to recognize Asian Americans as a minority and barred those Asian Americans that had accepted admission to the college from participating in its Freshman Minority Orientation.
155. By 1977, the CAA had become the Asian-American Association (“AAA”). The AAA demanded, among other things, that Harvard expand AsianAmerican recruitment and include Asian Americans within the college’s “affirmative action” program.
156. Between 1976 and 1978, the proportion of Asian Americans increased from 3.6 percent to 6.5 percent of the freshman class—a result of the successful mobilization of Asian-American students at Harvard. These events coincided with a massive increase in Asian Americans applying to Harvard for undergraduate admission.
157. Despite these increases, Harvard held Asian Americans to a higher standard than other applicants.
158. In 1983, Margaret Chin, a Harvard undergraduate who had worked in the college’s admissions office, co-authored a report entitled “Admissions Impossible.” Surveying data from 25 universities, the report found that while Asian-American applications to Harvard and other universities were soaring, enrollments were barely increasing.
159. Although Harvard claimed that the lower admission rate for AsianAmerican applicants was attributable to weaker academic qualifications, the “Admissions Impossible” report found that, on average, Asian Americans were more qualified than other applicants and that Harvard had set an informal ceiling on Asian-American enrollment.
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160. In the wake of this report, Harvard abandoned the argument that AsianAmerican applicants had weaker qualifications. Former Dean of Admissions Fred Jewett instead claimed, on behalf of Harvard, that “arguments over numbers ignore a whole range of personal qualities,” and that Harvard’s official policy favored “choosing people who bring talents underrepresented in the applicant pool.”
161. In 1987, a study found that Asian-American students admitted to Harvard had an average SAT score of 1467, whereas white students admitted to Harvard had an average SAT score of 1355—a 112-point difference.
162. In a 1987 New York Times article, Berkeley professor Ling-Chi Wang compared the way Asian Americans are considered in college admissions to the earlier treatment of Jews: “I think all of the elite universities in America suddenly realized they had what used to be called a ‘Jewish problem’ before World War II, and they began to look for ways of slowing down the admissions of Asians.” Robert Lindsey, Colleges Accused of Bias to Stem Asians’ Gains, New York Times (Jan. 19, 1987).
163. In 1988, Harvard rejected Ling-Chi Wang’s claim of discrimination against Asian-American applicants just as it had rejected the “Admissions Impossible” study’s findings of discrimination. Dean of Admissions William Fitzsimmons—who remains Dean of Admissions today—acknowledged that “Asian Americans are slightly stronger than whites on academic criteria,” but blamed the disparity in admissions on Asian Americans, as a group, being “slightly less strong on extracurricular criteria.”
164. In July 1988, the Office of Civil Rights (“OCR”) of the U.S. Department of Education began investigating the treatment of Asian-American applicants at Harvard to determine whether Harvard was engaging in discrimination in violation of Title VI of the
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Civil Rights Act. However, the investigation was strictly limited to the treatment of Asian-American applicants as compared to white applicants.
165. The OCR investigation lasted more than two years. Under the pressure of the investigation, Harvard began to increase its enrollment of Asian Americans. By the end of the investigation, the percentage of Asian Americans admitted to Harvard increased from 10.8 percent in 1988 to 16.1 percent in 1991.
166. OCR announced its findings in October 1990. Focusing on ten groups admitted from 1979 through 1988, it found that Asian Americans had been admitted at a significantly lower rate for each of the past seven years, even though they were “similarly qualified” to white applicants. OCR nevertheless blamed the differential on legacy preferences and found that the differential admission rates were not the product of racial or ethnic discrimination.
167. The OCR report was roundly criticized. According to Harvard Law Professor Alan Dershowitz, for example, Harvard’s rationale was just pretext for intentional discrimination: “Asian Americans clearly get a big whack—not a tip—in the direction against them. Harvard wants a student body that possesses a certain racial balance…. I think the report was sloppy. I have absolutely no faith in the Harvard system of admissions.” VII. HARVARD’S CURRENT DISCRIMINATORY ADMISSIONS PLAN
A. Harvard’s Stated Admissions Goals. 168. On its website, Harvard states as follows: “In our admissions process, we give careful, individual attention to each applicant. We seek to identify students who will
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be the best educators of one another and their professors—individuals who will inspire those around them during their College years and beyond.”
169. The Harvard website further states that Harvard “asks [itself] many questions” about an applicant for admission, which generally fall under four categories: an applicant’s “growth and potential,” “interests and activities,” “character and personality,” and “contribution to the Harvard community.”
170. The Harvard website further states that, in assessing an applicant’s “growth and potential, the committee asks questions such as “Have you reached your maximum academic and personal potential” and “Do you have initiative?” and “What sort of human being are you now?”
171. The Harvard website further states that, in assessing an applicant’s “interests and activities,” the committee asks questions such as “Do you care deeply about anything—intellectual? Extracurricular? Personal?” and “What have you learned from your interests?” and “In terms of extracurricular, athletic, community, or family commitments, have you taken full advantage of opportunities?”
172. The Harvard website further states that, in assessing “character and personality,” the committee asks questions such as “What choices have you made for yourself?” and “Are you a late bloomer?” and “What about your maturity, character, leadership, self-confidence, warmth of personality, sense of humor, energy, concern for others, and grace under pressure?”
173. The Harvard website further states, in assessing an applicant’s “contribution to the Harvard community,” the committee asks questions such as “Will you be able to stand up to the pressures and freedoms of College life?” and “Will you
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contribute something to Harvard and to your classmates?” and “Would other students want to room with you, share a meal, be in a seminar together, be teammates, or collaborate in a closely knit extracurricular group?”
174. The Harvard website further states that its admissions process “strives to be deliberate, meticulous and fair” while acknowledging that the process “permits extraordinary flexibility and the possibility of changing decisions virtually until the day the Admissions Committee mails them.”
B. Harvard’s Admissions Process. 1. The Application.
175. During an admissions cycle, the Harvard Admissions Committee reviews each student’s admissions materials. Those materials include: (1) the Common Application or Universal College Application, including an essay, and the required parts of the Harvard Supplement; (2) the high school transcript, school report, and mid-year school report—all submitted by a student’s guidance counselor; (3) standardized test scores—submitted by the College Board; (4) teacher and guidance counselor recommendations; (5) optional on-campus and/or off-campus interviewer evaluation; (6) optional personal statements (found on the Harvard Supplement) in addition to the required essays; and (7) optional music tapes, artwork slides, or samples of academic work.
176. Harvard gathers information about the race and ethnicity of its applicants through numerous ways.
177. An applicant filling out a Common Application has the option of disclosing his or her racial identity.
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178. The Common Application asks two questions to identify an applicant’s race and ethnicity: (1) “Are you Hispanic/Latino?” and (2) “Regardless of your answer to the prior question, please indicate how you identify yourself. (Check one or more and describe your background.) American Indian or Alaska Native (including all Original Peoples of the Americas); Asian (including Indian subcontinent and Philippines); Black or African American (including Africa and Caribbean); Native Hawaiian or Other Pacific Islander (Original People); or White (including Middle Eastern).”
179. The Common Application requires applicants to identify their parents’ first and last name, the parents’ former last names, and their country of birth.
180. Similarly, the Universal College Application gives the applicant the option of disclosing his or her racial identity.
181. The Universal College Application asks two questions to identify an applicant’s race and ethnicity: “Are you Hispanic or Latino?” and “How would you describe your racial background? (select one or more of the following categories): Asian ([if so, identify] country of family origin); Black or African American; American Indian or Alaska Native ([if so, identify where] enrolled [and] Tribal affiliation; Native Hawaiian or Other Pacific Islander; or White.”
182. The Universal College Application requires applicants to identify their parents’ first and last names.
183. The Universal College Application also requires applicants to identify, if it is not English, the “language spoken in your home.”
184. Harvard also encourages students to emphasize their race and ethnicity through their essays. According to Monica Del Toro, a Harvard Admissions Officer, the
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essay “is the most important part of the application.” The biggest rule, she says, “is to stand out,” and a good way “to truly stand out from the rest of the pack is to discuss your culture.”
185. Harvard accepts transfer students who have completed at least one continuous academic year in a full-time degree program at one college.
186. Harvard evaluates applicants for transfer in the same purportedly “holistic” manner it evaluates all other applicants. Harvard uses race or ethnicity as a factor in evaluating transfer applicants.
2. The Review Process. 187. Students are admitted through one of four lists: (1) early admissions; (2) regular admissions; (3) the waitlist; or (4) the “Z-list.” A student accepted through the early admission process must accept Harvard’s offer of admission. 188. As the admissions materials are received at the admissions office, they are stamped, dated, sorted, and organized in a folder, called the “file,” along with a scorecard, called the “reading sheet,” which is used to evaluate the applicant’s eligibility for admission. 189. Admissions officers start by assessing each applicant in four areas (academics, extracurriculars, personal qualities, and athletics) on a scale of one (best) to six (worst). 190. Those who pass this initial threshold move forward to a second and sometimes third reader for further appraisal; the rest form the first batch of rejections, their folders marked with notes such as “below the edge” or “case falls flat.”
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191. Small teams of admissions officers, each responsible for one of the 25 or so geographic regions or “dockets” into which Harvard divides its applicants, then scrutinize the remaining applicants for as long as five days.
192. After the docket reader has looked through and graded the file on the reading sheet, the folder is passed on to two more readers, who examine and evaluate all materials on separate reading sheets. The information from the three reading sheets is compiled onto a final reading sheet. Once this sheet has been prepared for all applicants in the docket, the admissions committee convenes to discuss the eligibility of all applicants from that docket.
193. Between 5,000 and 7,000 applicants proceed to the last and most contentious stage, the full committee meeting, in which all 35 admissions officers debate and vote on who will make the final cut. The committee’s decisions are ultimately rendered by simple majority ballot.
194. Typically, more students are voted in than space will permit. So the final portion of the process is spent in “reruns,” in which candidates who had won approval have their initial acceptances rescinded.
195. After reruns, a final decision is made either to accept, reject, wait-list, or “Z-list” the applicant.
196. Harvard considers race and/or ethnicity as a factor in whether to accept, reject, wait-list, or “Z-list” an applicant.
197. Applicants who are waitlisted are reviewed again by Harvard admissions officials in May after the admissions office has received students’ updated class grades, test scores, and achievements.
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198. Those select students placed on the “Z-list” are admitted on the condition that they take a mandatory year off before enrolling in Harvard. Harvard uses the Z-list to admit legacies and children of affluent families and elite schools who cannot gain admission through the ordinary course.
199. Harvard does not reveal publicly any aspect of its deliberative or decisional admissions process other than the end result. VIII. HARVARD CURRENTLY ENGAGES IN INTENTIONAL
DISCRIMINATION AGAINST ASIAN-AMERICAN APPLICANTS. 200. Harvard intentionally discriminates against Asian-American applicants. This discrimination is shown through both direct and circumstantial evidence, including statistical studies of Harvard’s admissions decisions. These studies confirm what AsianAmerican applicants and their parents already know: Harvard intentionally and artificially limits the number of Asian Americans to whom it will offer admission. A. There Is Decisive Statistical Evidence That Harvard Discriminates
Against Asian-American Applicants. 201. Each year, Harvard publishes a significant amount of data concerning its application process. Among other things, Harvard releases admitted student data and enrolled student data broken down by racial category. 202. Harvard used to allow the public to examine admission rates by race as well. More recently, however, Harvard began keeping these figures secret. Harvard has never offered an explanation for this decision. 203. By contrast, the prestigious University of California system routinely releases information about its applicant pool broken down by racial category, which allows the public to examine admission rates by race.
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204. Nonetheless, significant data regarding Harvard’s applicant pool has been made publicly available.
205. This statistical evidence establishes that Harvard is intentionally discriminating against Asian Americans by making it far more difficult for Asian Americans than for any other racial and ethnic group of students to gain admission to Harvard.
206. Princeton professor Thomas J. Espenshade and his coauthor, Alexandra Radford, conducted an authoritative study of the role of race in elite American undergraduate admissions for their book No Longer Separate, Not Yet Equal, which was published in 2009. Espenshade and Radford gathered exhaustive application data on a group of three elite public and four elite private colleges.
207. Controlling for a wide variety of academic, demographic, and personal characteristics, Espenshade and Radford found that Asian-American students were dramatically less likely to be admitted than otherwise similar students who identified themselves as white or Caucasian. In fact, Espenshade and Radford’s analysis showed that the negative odds-ratio affecting Asian Americans relative to Whites was larger than the positive odds-ratio affecting African Americans relative to Whites.
208. The Espenshade-Radford study also expressed the admissions penalty facing Asian Americans in terms of SAT-point equivalents. The authors reported that Asian Americans needed SAT scores that were about 140 points higher than white students, all other quantifiable variables being equal, to get into elite schools. Thus, if a white student needed a 1320 SAT score to be admitted to one of these schools, an Asian American needed a 1460 SAT score to be admitted. That is a massive penalty given that
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marginal differences in SAT scores are magnified among those students competing for admission to the most elite universities, as there is less room at the very top of the SAT scale to differentiate between applicants.
209. Recent statistical evidence reveals that discrimination against Asian Americans at Harvard is even more severe than the Espenshade-Radford study found.
210. In recent years, The Harvard Crimson has been surveying incoming freshmen. In 2013, nearly 80% of the incoming class of 2017 responded to its survey. According to the survey, the average SAT of respondents was 2237 (on a 2400-scale), while the average SAT of individual ethnic groups varied widely: 2299 for East Asians and Indians, 2107 for African-Americans, and 2142 for Native Americans). Given this reporting, the average SAT for non-Hispanic Whites is at or somewhat below the overall median.
211. This class average (2237) corresponds to roughly the 99.5 percentile of the SAT, meaning that Harvard draws half of its class from students scoring in the top 1/2 of 1 percent of the SAT I distribution. The “East Asian and Indian” average of 2299 corresponds to the 99.9 percentile of the SAT, meaning that Harvard draws about half of this ethnic group from the top 1/10 of 1 percent of the SAT I distribution. That is a dramatically higher standard of academic performance. Harvard requires much more of its Asian-American applicants than it requires of other races and ethnicities.
212. Dr. Richard Sander, a professor of law at UCLA, and Medha Uppala, a graduate student in statistics at UCLA, recently co-authored a working paper titled The Evolution of SES Diversity in the Applicant Pool of Highly Selective Universities, 19942012. In this working paper, Dr. Sander and Ms. Uppala examine data on several Ivy
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League colleges that shed valuable light on the admissions practices at these schools. The paper examines the degree to which elite colleges, including Harvard, have expanded their access in recent years to students with low socioeconomic status. The primary data source is a widely used database from the College Board, which biannually compiles anonymized data on 100,000 SAT-takers nationwide. The paper reveals startling application patterns from the aggregated data that it reports, which, in conjunction with other data sources, make manifest Harvard’s massive intentional discrimination against Asian Americans.
213. As an initial matter, the paper finds that Asian Americans are being admitted to these schools at a far lower rate than the rate at which they apply. The paper notes that for “three of the most selective Ivy League colleges,” the average racial makeup of all domestic score senders between 2008 and 2012 is 27.3 percent Asian American, 11.3 percent African American, 12.5 percent Hispanic, 40.4 percent nonHispanic White, and 8.5 percent other race or non-identified. Over this same time period, however, Asian Americans represented only 17-20 percent of the admitted students. No other racial or ethnic group at these schools is as underrepresented relative to its application numbers as are Asian Americans. Indeed, no other racial or ethnic group comes even remotely close to this level of underrepresentation.
214. Thus, if Harvard admitted randomly from its applicant pool, the number of Asian Americans in its entering freshman class would be far higher than it actually is.
215. These data alone provide strong evidence that Harvard is engaging in intentional discrimination against Asian-American applicants absent some factor that makes this gross disparity explainable on non-discriminatory grounds.
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216. Moreover, the paper’s data shows that Asian-American applicants have, on average, stronger qualifications for admission than any other racial or ethnic group applying to top Ivy League schools.
217. Ironically, then, the most underrepresented group of admitted students relative to the applicant pool is the most overrepresented racial or ethnic group among top academic performers.
218. Among “three of the most selective Ivy League colleges,” the paper’s data shows that, during the 2008, 2010, and 2012 admissions cycles, Asian Americans, on average, constituted nearly 39 percent of all domestic SAT-takers who (a) had scores of 2100 or higher and (b) sent their scores to these schools.
219. The Harvard Crimson survey, as does every other available public source, confirms that the vast majority of Harvard’s students come from this pool of applicants (with SAT scores of 2100 or higher).
220. Remarkably, students with higher test scores were even more likely to be Asian Americans. In 2008, Asian Americans made up 46 percent of domestic Harvard score-senders with SAT scores above 2200 (a range from which Harvard draws more than half of its students). In addition, Asian Americans made up an even higher percentage of the very top students; they accounted for 55 percent of domestic Harvard score-senders with SAT scores above 2300. These patterns are very similar across all of the top Ivy League schools. In 2008-12, for the three Ivy League schools analyzed by Dr. Sander and Ms. Uppala, Asian Americans made up 38.9 percent of all domestic scoresenders with SAT scores above 2100; 45 percent of domestic score-senders with SAT scores above 2200; and over 51 percent of domestic score-senders with SAT scores
47

above 2300. These data, in combination with other publicly available data, demonstrate that Asian Americans admitted to Harvard are vastly underrepresented—by a factor of half or even two-thirds—relative to the number of applications from Asian Americans that Harvard receives.
221. There is no reason to doubt that Harvard is one of the three Ivy League colleges in Dr. Sander’s and Ms. Uppala’s analysis. Harvard is among the most selective colleges in the Ivy League (if not the most selective). But even if Harvard is not one of the colleges they examined, its patterns of Asian-American enrollment and selectivity closely match those of the “three of the most selective Ivy League colleges” in Dr. Sander’s and Ms. Uppala’s analysis such that there is no reason to believe their conclusions would not apply to Harvard.
222. In all events, Harvard’s data is highly consistent with all other Ivy League schools, which as Table A shows, inexplicably enroll Asian Americans in remarkably similar numbers year after year after year.
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School Brown Columbia Cornell Dartmouth Harvard Penn Princeton Yale

Table A Ivy League Enrollment (Asian Americans)

2007

2008

2009

2010

2011

15%

16%

15%

15%

14%

17%

17%

16%

16%

16%

16%

17%

17%

16%

16%

14%

14%

15%

15%

14%

15%

17%

17%

16%

17%

17%

17%

18%

18%

18%

14%

15%

16%

17%

18%

14%

14%

15%

15%

15%

2012 12% 16% 16% 14% 18% 18% 19% 16%

2013 14% 18% 16% 14% 18% 18% 17% 16%

223. Various additional studies confirm that Harvard is intentionally discriminating against Asian-American applicants and that it is doing so in much the same manner as it discriminated against Jewish applicants decades ago.
224. In 2012, Ron Unz, who holds an undergraduate physics degree from Harvard and studied theoretical physics at Stanford, conducted an extensive study of Ivy League admissions. See Ron Unz, The Myth of American Meritocracy, American Spectator (Dec. 2012). Mr. Unz found rampant discrimination against Asian Americans by Ivy League universities generally and Harvard specifically.
225. Using data from the National Center for Educational Statistics, as well as other sources, Mr. Unz found that the “ethnic composition of Harvard’s undergraduates … follows a highly intriguing pattern.” In particular, he found that after seeing a steady increase in Asian-American admissions through the 1980s and into the 1990s, in 1993 “Asian numbers went into reverse, generally stagnating in the two decades that followed, with the official 2011 figure being 17.2 percent.”

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226. Unz found “[e]ven more surprising … the sheer constancy of these percentages, with almost every year from 1995-2011 showing an Asian enrollment within a single point of the 16.5 percent average, despite high fluctuations in the numbers of applications and the inevitable uncertainty surrounding which students will accept admission.” Unz highlighted that “this exactly replicates the historical pattern … in which Jewish enrollment rose very rapidly, leading to the imposition of an informal quota system, after which the numbers fell substantially, and thereafter remained roughly constant for decades.”
227. A report by the Consortium on Financing Higher Education, in the Harvard Class of 1995, also showed that Asian Americans are held to a higher standard than any other group of applicants. See Melissa Lee, Report Discloses SATs, Admit Rate, The Harvard Crimson (May 7, 1993). Responding to this study, Dean Fitzsimmons stated that race is “only one factor in deciding whether a candidate is admitted,” but that certain minority groups, particularly African Americans, are “highly sought after” and that, “[s]tatistically, one could make the argument that it’s easier for certain minorities [to be admitted].”
228. Dean Fitzsimmons added: “It’s true that admission rates for Asian Americans and whites are lower than the admission rates for Hispanics and African American students and Native American students as well. But it’s more complicated than that. . . . The question we look at is how much more likely will white and Asian American students have access to the kind of preparation that will make one an outstanding college candidate here.”
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229. No non-discriminatory factor justifies the gross disparity in Asian American admissions relative to their presence in Harvard’s applicant pool.
230. One non-discriminatory factor that theoretically could justify this gross disparity would be if a disproportionally high percentage of Asian-American students were clustered at the low end of the applicant pool with regard to academic qualifications as compared to other racial groups. But as Dr. Sander’s and Ms. Uppala’s paper and other data show, the opposite is in fact true. A disproportionally high percentage of Asian-American students are clustered at the high end of the applicant pool with regard to academic qualifications.
231. Another non-discriminatory factor that theoretically could justify this gross disparity would be if a disproportionally high percentage of Asian-American students were lacking with regard to non-academic criteria as compared to other racial groups.
232. But there is no data to support that theory. See, e.g., Esteban M. Aucejo, Hanming Fang, and Ken Spenner, “Does Affirmative Action Lead to Mismatch? A New Test and Evidence,” 2 Quantitative Economics 303 (2011). This study found no racial advantage for underrepresented minority applicants in levels of personal achievement.
233. Studies also have shown that high-achieving Asian-American students are equally, if not more, qualified than other racial groups with regard to non-academic criteria. At the University of California, Los Angeles (UCLA), over several years, undergraduate admissions readers assigned each applicant three types of scores: “academic achievement” (principally high school grades, AP courses, and standardized test scores); “life challenges” (mainly socioeconomic background); and “personal
51

achievement” (such as leadership, musical ability, and community service). These three scores jointly determined virtually all admissions decisions. See Peter Arcidiacono, Thomas Espenshade, Stacy Hawkins, and Richard Sander, A Conversation on the Nature, Effects, and Future of Affirmative Action in Higher Education Admissions, Pennsylvania Journal of Constitutional Law (Fall 2014).
234. The data cover over 100,000 undergraduate applicants to UCLA over three years and show absolutely no correlation between race and “personal achievement.” Rather, the data show that the only strong predictor of personal-achievement scores is academic achievement; applicants with high test scores and grades tended to have personal achievement scores that were about one standard deviation higher than applicants with low test scores and grades.
235. There is no evidence that Asian Americans applying to UCLA have personal achievement credentials that Asian Americans applying to Harvard uniformly lack. Rather, all available evidence points in the opposite direction.
236. Moreover, notwithstanding Harvard’s public relations emphasis on nonacademic factors in reviewing applications, academic performance is the principal criteria for admission—except when it comes to minority groups that are either preferred or discriminated against based on their race and ethnicity.
237. Academic analyses of dozens of application processes at colleges and law schools around the country demonstrate that selective schools give far more weight to academic achievement and preparation than to other types of accomplishment and activity. See Richard Sander, Why Strict Scrutiny Requires Transparency: The Practical
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Effects of Bakke, Gratz, and Grutter (2011). In general, academic factors alone explain about 80 percent of admissions decisions at selective schools.
238. The gross disparity between the percentage of Asian-American students in the applicant pool and those in the admitted pool therefore are not explainable on any grounds other than intentional discrimination on the basis of race.
B. Elite Schools That Use Race-Neutral Admissions Have Far Higher Asian-American Enrollment.
239. Other elite colleges and universities do not consider race in their admissions process, and therefore serve as controls against which to measure Harvard’s admission and enrollment figures. Those universities uniformly admit and enroll far higher percentages of Asian American students than Harvard.
240. For example, the California Institute of Technology (Caltech) is a private school that selects its students by strict academic standards and chooses not to consider race. Almost 40 percent of its undergraduates are Asian American.
241. Table B sets forth the Asian-American percentage of the total undergraduate enrollment at Caltech and Harvard:
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Table B Asian-American Enrollment

1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013

Harvard 19.1% 20.6% 18.3% 18.4% 17.5% 17.4% 17.0% 17.2% 17.1% 16.4% 16.3% 16.2% 17.1% 17.6% 14.3% 15.4% 16.7% 17.0% 15.6% 17.2% 17.7% 18.0%

Caltech 25.2% 26.9% 29.8% 29.1% 27.6% 27.4% 24.1% 24.3% 24.9% 24.5% 27.2% 31.1% 31.1% 33.0% 37.4% 38.1% 39.8% 39.9% 39.4% 38.8% 39.6% 42.5%

242. The following graph represents the Asian-American enrollment trends

between the two schools:

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243. The University of California system also does not use racial preferences, as they were banned via popular referendum in 1996. Asian Americans currently make up 34.8 percent of UCLA’s student body and 32.4 percent of the University of California at Berkley’s student body.
244. A similar phenomenon exists at elite high schools. Those high schools that do not employ racial preferences have extraordinarily high percentages of Asian Americans. For example, Hunter College High School in New York chooses students without giving preference to legacies, athletes, or underrepresented minorities. This admissions system produced a student body that was 49 percent Asian American in 2013.
245. Similarly, Thomas Jefferson High School for Science and Technology, a magnet school in Virginia that is consistently ranked one of the best high schools in the country, does not employ racial preferences. Its 2014 entering fall class is 66 percent Asian American.
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C. Statements By Admissions Staff At Harvard And Other Schools Provide Further Evidence That Harvard Discriminates Against Asian-American Applicants.
246. Harvard evaluators consistently rank Asian-American candidates below White candidates in “personal qualities.” In comments written in applicants’ files, Harvard admissions staff repeatedly have described Asian Americans as “being quiet/shy, science/math oriented, and hard workers.”
247. One Harvard official summed up the profile of a purportedly typical Asian applicant this way: “He’s quiet and, of course, wants to be a doctor.”
248. Another Harvard official wrote that an applicant’s “scores and application seem so typical of other Asian applications I’ve read: extraordinarily gifted in math with the opposite extreme in English.”
249. According to Hunter College High School’s director of college counseling, admissions officers at elite universities often complain that Asian American applicants all look the same on paper. “When Harvard calls us back and gives us a brief synopsis of why certain [Asian] kids didn’t make it, they’ll say, ‘There were so many kids in the pool that looked just like this kid.’”
250. Admissions officers at other top schools have expressed similar sentiments. For example, asked why Vanderbilt poured resources into recruiting Jewish students instead of Asian Americans, a former administrator said, “Asians are very good students, but they don’t provide the kind of intellectual environment that Jewish students provide.”
251. Rod Bugarin, a former admissions officer at Wesleyan, Brown, and Columbia, stated: “The bar is different for every group. Anyone who works in the
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industry knows that.” Without affirmative action, “our elite campuses will look like UCLA and Berkeley,” and “[t]hat wouldn’t be good for Asians or for anyone else.”
D. College Counselors Acknowledge Discrimination Against Asian Americans At Elite Universities.
252. College counselors and advisors recognize that discrimination against Asian Americans occurs at elite universities such as Harvard and thus tell Asian Americans to hide their identity, to emphasize personal characteristics that avoid Asian stereotypes, and, in many cases, to lower their expectations and apply elsewhere.
253. For example, the Princeton Review, the leading guide to college admissions, gives specific recommendations for Asian-American students applying to elite schools such as Harvard on how to overcome these schools’ anti-Asian-American bias. Its recommendations are both honest and discouraging.
254. According to the Princeton Review: “Asian Americans comprise an increasing proportion of college students nationwide. Many Asian Americans have been extraordinarily successful academically, to the point where some colleges now worry that there are ‘too many’ Asian Americans on their campuses. Being an Asian American can now actually be a distinct disadvantage in the admissions processes at some of the most selective schools in the country. Increasingly, the standard for affirmative action isn’t minority status, but under-represented minority status. Since Asian American populations at many colleges exceed the proportion of Asian Americans to the population of the state or country as a whole, Asian Americans are a minority, but not an underrepresented minority, at those colleges…. If you are an Asian American—or even if you simply have an Asian or Asian-sounding surname—you need to be careful about what you do and don’t say in your application.”
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255. According to the Princeton Review: “You need to avoid being an Asian Joe
Bloggs. Asian Joe Bloggs is an Asian American applicant with a very high math SAT
score, a low or mediocre verbal SAT score, high math- or science-related SAT II scores,
high math and science grades, few credits in the humanities, few extracurricular
activities, an intended major in math or the sciences, and an ambition to be a doctor, an
engineer, or a research scientist. The more you sound like this person, the more likely
admissions officers will be to treat you as part of the ‘Asian invasion’ and reject your
application, or at the very least make you compete against other Asian applicants with
similar characteristics, rather than against the applicant pool as a whole.”
256. Princeton Review further explains: “If you share traits with Asian Joe
Bloggs you should probably pay careful attention to the following guidelines:
• If you’re given an option, don’t attach a photograph to your application and don’t answer the optional question about your ethnic background. This is especially important if you don’t have an Asiansounding surname. (By the same token, if you do have an Asiansounding surname but aren’t Asian, do attach a photograph.)
• Work on your verbal SAT score, take some literature and history courses, and get involved in activities other than math club, chess club, and computer club.
• Do not write your application essay about the importance of your family or the positive/negative aspects of living in two cultures. These are Asian Joe Bloggs topics, and they are incredibly popular. Instead, write about something entirely unrelated to your ethnic background.
• Don’t say you want to be a doctor, and don’t say you want to major in math or the sciences. You don’t have to lie. If you have lousy SAT verbal scores, saying you want to be an English major isn’t going to help you, either. Just say you’re undecided. The point is to distance yourself as much as possible from the stereotype.
• These guidelines are less important if you are chiefly interested in less selective schools or if you are applying to schools where all the students take only math and science courses and dream of medical or
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research careers. In fact, Asian Joe Bloggs’s high math and science scores can be an advantage in applying to schools below the Ivy league level. Even there, though, the less you sound like the stereotype, the better your chances will be.” 257. Whole new industries have sprung up to help Asian Americans overcome discrimination and secure admission to elite universities, including Harvard. 258. One organization called “Asian Advantage College Consulting” promises to help an “Asian-American student applying to elite colleges beat the Asian Quotas.” Its strategy is, first, recognizing that “Asian students need to approach the admissions process in a completely different manner than the white or non-Asian applicant” and, second, developing a strategy to stand out from the many “Asian-American applicants with high grades and SAT/ACT scores, along with a seemingly impressive list of awards and achievements in science fairs, musical competitions and school-based activities like debate and the robotics club.” 259. Similarly, the Ivy League Coach, a college counseling practice, provides specific recommendations for Asian Americans: “The fact is, highly selective colleges seek a diverse incoming class and a diverse incoming class does not mean an all Asian class. So Asian students do indeed compete against each other. Does that mean that an Asian American student shouldn’t check off ‘Asian American’ on their college application? Not necessarily. A student should check off the ethnicity that they’re most comfortable with, the ethnicity or ethnicities that they most closely identify with. But what the article on Asians and college admissions … doesn’t say is that college admissions counselors are going to suspect that Henry Chang is Asian whether or not Henry Chang checks the box. But that doesn’t mean Henry can’t do something about differentiating himself from other Asian American applicants…. Don’t just be the math
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kid with perfect scores who competes in Mathletes. Don’t just play the violin. Do something that many of the Asian American kids in your class aren’t doing…. Whether or not the following is [politically correct], it’s also true: What you want to do is distinguish yourself from any perceived stereotypes.”
260. The bias against Asian-American applicants discussed by these college counselors exists at Harvard. Many high school guidance counselors caution students applying to Harvard not to list their race as Asian.
261. According to one high school guidance counselor, Asian Americans face difficulty because they cannot distinguish themselves within their community: “[e]very single child has had music lessons. Every single child succeeds well in math. Every single child has done community service in a hospital. Every child has done Chinese or Korean studies on Saturday and is fluent in that language.”
E. Asian-American Applicants And Their Families Know That They Are Being Discriminated Against By Elite Universities.
262. Asian Americans are not blind to the discrimination employed by Harvard and other elite colleges and universities.
263. According to Princeton economist Uwe Reinhardt, “within the Asian community, of which I’m a part, there’s this feeling that, for you to get into Harvard or Princeton, you’ve got to be better than everybody else.”
264. According to Kara Miller, a former Ivy League admissions officer, “Asian kids know that when you look at the average SAT for the school, they need to add 50 or 100 to it. If you’re Asian, that’s what you’ll need to get in.”
265. For example, Iris Wang, a senior at Hunter College High School, one of the best public high schools in America, scored a 1520 SAT score and had top grades. Her
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father is a chemist and her mother a postal worker. She was rejected by Harvard, as well as numerous other schools. According to Wang, “All the schools basically say, ‘we don’t discriminate.’ But I went to the Columbia session and they said they value a multicultural community. If they want to be multicultural, there’s only so many of one culture they can take.”
266. Daniel Golden, the Pulitzer Prize-winning reporter then of The Wall Street Journal, described Jamie Lee, who applied to Harvard, as well as six other elite private schools: According to Mr. Golden, “Jamie Lee was a superb student. Born in Hong Kong to an English father and Chinese mother, he grew up in London, where teachers marveled at his ability and his IQ was measured at 162, widely considered genius level. When his family emigrated to Greenwich, Connecticut, in 2003, he quickly established himself as a top student at Greenwich High, a premier public school. On his first tries, without a test-prep course, he scored the maximum on the PSAT, the SAT, and two of his three SAT II subject tests; on the third SAT II, writing, he missed by only 20 points, scoring 780 out of 800. Nor was he merely a standardized-test machine; his problem solving displayed impressive originality. In 2005, Jamie won the Greenwich High award given to the senior who ‘demonstrates creative ability and inventiveness in math, who may take the unusual approach to a problem and come up with an unexpected answer.’ His creativity also emerged in music (the high school string ensemble performed his composition ‘Three Dances,’ with Jamie on cello) and mechanical design (he built an ingenious wooden cabinet with doors that automatically opened and closed a mobile rack for storing compact discs). ‘He likes to be opposition and play the devil’s advocate,’ said his junior-year Latin teacher, Camille Fusco. ‘He’s very independent in his thinking. On
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an essay question, he’d deliberately take the point of view I didn’t want to hear. But he got away with it because he can take any view brilliantly.’”
267. Despite this academic record, Harvard—as well as Princeton, Yale, Stanford, Columbia, Dartmouth, and MIT—denied Jamie Lee admission. Fusco said he “‘was really shocked [Jamie] didn’t get in” because he “‘thought of him as a Harvard person.’”
268. Jamie’s English literature teacher, Brigid Barry, said she too was “‘very, very surprised. There’s no doubt he’s an outstanding student,’” and that in eight years of teaching AP English, she had seen the Ivy League schools admit many weaker candidates.
269. Marlyn McGrath Lewis, Harvard’s director of admissions, told Jamie’s father that Jamie “‘was an excellent student but that a number of better musicians had applied.’” When asked later if Jamie was held to a higher standard because he was half Asian, Ms. Lewis declined to comment.
270. One strategy that Asian-American students applying to Harvard use is to avoid identifying their race. Many Asian-American students are unwilling to state their race at all on college applications.
271. For example, Lanya Olmstead was born in Florida to a mother who immigrated from Taiwan and an American father of Norwegian ancestry. Ethnically, she considers herself half Taiwanese and half Norwegian. But when applying to Harvard, Olmstead checked only one box for her race: white. According to Olmstead: “I didn’t want to put ‘Asian’ down … because my mom told me there’s discrimination against
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Asians in the application process…. Not to really generalize, but a lot of Asians, they have perfect SATs, perfect GPAs, … so it’s hard to let them all in.”
272. Said another student: “As someone who was applying with relatively strong scores, I didn’t want to be grouped into that stereotype … I didn’t want to be written off as one of the 1.4 billion Asians that were applying.”
273. Applicants who are part Asian American regularly attempt to conceal their Asian ancestry when applying to Harvard out of concern it would greatly reduce their chances of admission.
274. For example, Harvard student Heather Pickerell, born in Hong Kong to a Taiwanese mother and American father, refused to check any race box on her application because “I figured it might help my chances of getting in.”
275. According to Lee Cheng, founder of the Asian American Legal Foundation, “Many Chinese-American children have internalized their anger and pain, confused about why they are treated differently from their non-Chinese friends. Often they become ashamed of their ethnic heritage after concluding that their unfair denial is a form of punishment for doing something wrong.”
276. Another example is Henry Park. According to Daniel Golden’s reporting: “Henry Park ranked 14th out of 79 members of the class of 1998 at Groton School, a super competitive prep school in Groton, Massachusetts. He got a perfect 800 on the math SAT for a combined score of 1560 out of 1600, placing him in the top one-quarter of 1 percent of college-bound students. On the SAT II subject test, he scored another perfect 800 on the harder of the two math exams offered, along with 760 out of 800 in Latin and 740 in physics. He played violin and competed on the cross-country team, and
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a respected math journal published a paper he coauthored with two classmates. And as the son of hardworking, middle-class Korean immigrants who dreamed of a better life for their children and scrimped to pay Groton’s tuition, Henry seemed to embody the up-byhis bootstraps American saga that is supposed to appeal to college admissions officers.”
277. Henry’s guidance counselor at Groton nevertheless discouraged him from applying to the Ivy League, telling him “it was a long shot at best, and advised him to lower his expectations to second- and third-tier schools.”
278. Harvard denied Henry admission, as did Yale, Brown, and Columbia. At the same time, Ivy League universities admitted 34 of Henry’s Groton classmates. According to Henry: “When the decisions came out, and all these people started getting in, I was a little upset. I feel I have to hold myself to a higher standard.” Added his mother, Suki Park, “I was naïve. I thought college admissions had something to do with academics.”
279. Henry Park’s mother described the harm caused to Henry and his family: “I have thought many, many times why Henry failed. It was just devastating. He just failed like a falling leaf…. Korean Americans have to do a lot better than Caucasians to get admitted, and it’s probably the same for other Asians. It’s very, very tough. Presently, yes, there is discrimination.”
280. When MIT’s dean of admissions Marillee Jones was asked about Henry Park, who was rejected by Harvard, she said that “it’s possible that Henry Park looked like a thousand other Korean kids with the exact same profile of grades and activities and temperament. My guess is that he just wasn’t involved or interesting enough to surface to
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the top.” To Ms. Jones, it made sense for universities to admit other students over “yet another textureless math grind.”
281. The “model minority” stereotype of high-achieving Asian Americans does an even greater disservice to socioeconomically disadvantaged individuals by making it virtually impossible for disadvantaged Asian Americans to compete with disadvantaged students from other races who are held to a lower standard.
282. For example, Kai Chan, a Princeton doctoral student in economics and the son of Chinese immigrants, describes the struggles he has endured: “Is it fair in the name of (skin-deep) diversity to hold back qualified students from admission to the Ivies because of their race? After all, it is a fact that Asians need higher academic achievements than their peers to get admitted to the same school…. The misguided approach of programs like affirmative action can be seen through my experience. I am the son of poor, non-English speaking parents, neither of whom attended high school. They never read to me as a child. They never attended my graduations. I went to some terrible high schools. (Altogether, I attended five high schools, one of which was known locally as ‘last chance high.’) I worked practically full-time while attending high school and college. But I’ve never gotten the benefit of the doubt anytime in my life. If anything, I’ve had to be better than my peers.”
283. Application statistics confirm that Asian Americans are aware of (and have responded to) the discrimination they suffer at Harvard. As the Asian-American population of the United States has grown, so has its share of academically highachieving students. As Dr. Sander’s paper shows, Asian Americans made up roughly 21 percent of all domestic SAT takers with scores above 1400 in the 1994, 1996, and 1998
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admissions cycles. In the 2008, 2010, and 2012 admissions cycles, Asian Americans made up roughly 33 percent of all domestic SAT takers with scores above 2100—an increase roughly proportionate to the growth of the Asian-American proportion of all SAT takers.
284. Yet during this same period, as many elite colleges, including Harvard, increasingly discriminated against Asian Americans, the proportion of high-scoring Asian Americans sending their scores to these schools declined sharply. As Dr. Sander and Ms. Uppala report, the proportion of Asian Americans with top SAT scores (i.e., above 1400 in 1994-98 and 2100 in 2008-12) who sent their scores to the most selective Ivy League schools fell from 39.7 percent in the mid-1990s to only 27.4 percent during the 2008, 2010, and 2012 cycles. No comparable drop occurred for any other racial group.
285. Asian Americans understand that they are not competing for admission to Harvard against the entire applicant pool. In light of Harvard’s discriminatory admissions policies, they are competing only against each other, and all other racial and ethnic groups are insulated from competing against high-achieving Asian Americans.
286. Because Asian Americans congregate at the high end of Harvard’s applicant pool, the competition is fierce. This has deterred and continues to deter many qualified Asian Americans from applying to Harvard. Harvard’s discriminatory reach thus extends far beyond those highly qualified Asian Americans who decide to apply and whose applications are treated unfairly in the admissions process.
287. This discrimination has reached and continues to reach every Asian American student who has shied away or will shy away from applying to Harvard out of
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the well-founded fear that he or she will not successfully make it out of the highly competitive Asian American admissions pool and gain admission to Harvard. IX. HARVARD CURRENTLY ENGAGES IN RACIAL BALANCING.
288. Not only does Harvard discriminate against Asian Americans, it racially balances its entering freshman class to ensure proportional representation of the various racial and ethnic groups present in Harvard’s student body.
289. Harvard’s system of racial balancing is shown through both direct and circumstantial evidence, including statistical studies of Harvard’s admissions decisions. This evidence confirms that Harvard is not using racial preference to pursue “critical mass” or any other diversity goal the Supreme Court has ever found permissible.
290. As shown in Table C, the racial demographics of Harvard’s admitted class have remained stable across all racial groups at least over the last 9 years.

Table C Harvard Admissions (Percentage of Admitted Students by Race/Ethnicity)

2014 2013 2012 2011 2010 2009 2008 2007 2006

African American

11.9% 11.5% 10.2% 11.8% 11.3% 10.8% 11.0% 10.7% 10.5%

Hispanic

13.0% 11.5% 11.2% 12.1% 10.3% 10.9% 9.7% 10.1% 9.8%

Asian American 19.7% 19.9% 20.7% 17.8% 18.2% 17.6% 18.5% 19.6% 17.7%

Native American

1.9% 2.2% 1.7% 1.9% 2.7% 1.3% 1.3% 1.5% 1.4%

White and Other

53.5% 54.9% 56.2% 56.4% 57.5% 59.4% 59.5% 58.1% 60.6%

291. As shown in Table D, the racial demographics of Harvard’s enrolled firstyear classes also have remained stable across all racial groups throughout the past decade.

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Table D Harvard Enrollment (Percentage of First Years by Race/Ethnicity)

2013 2012 2011 2010 2009 2008 2007 2006 2005 2004 2003

Nonresident alien 11% 11% 12% 10% 10% 10% 10% 9% 9% 9% 8%

Hispanic/Latino 10% 9% 10% 9% 9% 7% 8% 8% 7% 9% 8%

American Indian 0% 0% 0% 0% 1% 1% 1% 1% 1% 1% 1% or Alaska Native

Asian Americans 19% 20% 17% 15% 17% 19% 18% 15% 19% 20% 17%

Black or African 7% 6% 7% 6% 9% 8% 8% 8% 9% 9% 9% American

Native Hawaiian 0% 0% 0% 0% 0% 0% 0% 0% 0% 0% 0% or Other Pacific Islander

White

43% 45% 45% 44% 40% 41% 42% 44% 47% 47% 50%

Two or more races 7% 6% 6% 6% 0% 0% 0% 0% 0% 0% 0%
Race and ethnicity 3% 3% 3% 11% 14% 15% 13% 15% 8% 5% 7% unknown

292. As shown in Table E, the racial demographics of Harvard’s overall student body likewise have remained remarkably stable across all racial groups throughout the past decade.

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Table E Harvard Enrollment (Percentage of Student Body)

2013 2012 2011 2010 2009 2008 2007 2006 2005 2004 2003

Nonresident alien 11% 11% 11% 10% 10% 10% 9% 10% 8% 8% 7%

Hispanic/Latino 9% 9% 9% 8% 8% 7% 7% 7% 7% 8% 7%

American Indian 0% 0% or Alaska Native

0% 0% 1% 1% 1% 1% 1% 1% 1%

Asian Americans 18% 18% 17% 16% 17% 17% 15% 17% 18% 17% 16%

Black or African American

6% 6%

7% 7% 8% 8% 8% 8% 8% 8% 7%

Native Hawaiian or Other Pacific Islander

0% 0%

0% 0% 0% 0% 0% 0% 0% 0% 0%

White

45% 45% 45% 44% 42% 45% 46% 45% 49% 49% 49%

Two or more races 6% 5% 5% 3% 0% 0% 0% 0% 0% 0% 0%

Race and ethnicity 4% 5% unknown

6% 12% 14% 14% 14% 14% 8% 9% 12%

293. Table C, Table D, and Table E, both individually and collectively, demonstrate that Harvard is engaging in racial balancing as there can be no nondiscriminatory reason justifying such remarkable stability in its overall student body across all racial groups over this multi-year period.
294. Indeed, Harvard’s admissions and enrollment data tends to demonstrate that Harvard is engaging in racial balancing to a statistically significant degree.
295. The year-to-year changes in the racial composition of Harvard’s admitted and enrolled freshman class also reflect racial balancing as shown by, among other things, how Harvard has managed its balance between African Americans and Hispanics, and how it has managed its balance between Asians and Non-Hispanic whites.

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296. Over the period between 1994 and 2008, African American enrollment has remained extraordinarily stable at Harvard, averaging 7.8 percent with a standard deviation (calculated by year over the 14-year period) of 0.3 percent. Hispanic enrollment also remained quite stable, averaging 7.4 percent with a standard deviation of 0.4 percent. This occurred despite the fact that throughout this period, the applicant pool of academically strong Hispanic students at Harvard and other elite Ivy League schools was substantially larger than the similar pool for African Americans, and the gap became larger over time.
297. Yet Harvard and its peer Ivy League colleges have consistently admitted as many African Americans as Hispanics (if not more), even though this meant using substantially larger preferences for African Americans than for Hispanics. In other words, Harvard has manipulated the size of racial preferences to ensure it maintained racial balance.
298. Over the period between 2003 and 2012, the percentage of Asian Americans at Harvard wavered only slightly above and below approximately 17 percent. As noted earlier, this is despite the fact that, by 2008, Asian Americans made up over 27 percent of Harvard’s applicant pool, and approximately 46 percent of applicants with academic credentials in the range from which Harvard admits the overwhelming majority of students. But during this same period, Harvard’s “non-Hispanic white” representation is only slightly declining.
299. Given Harvard’s other racial balancing goals, it is obvious that if Harvard evaluated Asian Americans and non-Hispanic whites equally, non-Hispanic white admissions would drop significantly, possibly to the point where Asian-American
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enrollment and non-Hispanic white enrollment would be roughly comparable. Although this would cause Harvard’s overall level of racial diversity to increase, not decrease, Harvard nevertheless continues to use racial balancing to keep white enrollment more than twice as high as Asian-American enrollment.
300. The minor year-to-year deviations in admissions and enrollment numbers demonstrate Harvard’s commitment to maintaining racial stability over any four-year enrollment period. In other words, when enrollment of a particular racial or ethnic group exceeds or falls short of Harvard’s intended goal, in the next one or two admissions cycles, Harvard admits fewer or more applicants of that racial or ethnic group in order to balance out the overall student body.
301. For example, in 2005, 18 percent of Harvard’s student body was Asian American, which was a 16-year high. In response, Harvard admitted an unusually low number of Asian Americans in the following admissions cycle (17.7 percent). That predictably resulted in an unusually low yield of Asian Americans enrolling at Harvard (15.0 percent). Indeed, both the 2006 admissions and enrollment figures for Asian Americans were at or near 10-year lows.
302. Similarly, in 2012, 6 percent of Harvard’s overall student body was African American, which was a 24-year low. In response, Harvard admitted an unusually high number of African Americans in the next two admissions cycle (11.5 percent and 11.9 percent, respectively), which were both record highs. That predictably resulted in an usually high yield of African Americans enrolling at Harvard in 2013, which maintained an overall enrollment figure in line with the 20-year average, and would be expected to result in a similar enrollment level of African Americans in 2014.
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303. No factor or criteria for admission—other than racial balancing—could explain these admissions patterns and the overall consistency of Harvard’s admissions, enrollment, and overall student body figures across all racial groups.
304. As the Unz study found, “ethnic enrolment levels which widely diverge from academic performance data or applications rates and which remain remarkably static over time provide obvious circumstantial evidence for at least a de facto quota system.” X. HARVARD HAS AVAILABLE RACE-NEUTRAL ALTERNATIVES
THAT CAN ACHIEVE STUDENT-BODY DIVERSITY. 305. Harvard has a host of race-neutral alternatives that can achieve student body diversity without the use of racial classifications, including but not limited to: (a) increased utilization of non-race-based preferences; (b) increased use of financial aid, scholarships, and recruitment to attract and enroll minority applicants; and (c) elimination of admissions policies and practices that operate to the disadvantage of minority applicants. Furthermore, eliminating racial preferences at Harvard will alleviate the substantial harm these discriminatory policies cause to those minority applicants who receive such admissions preference, the Harvard community, and society as a whole. A. Harvard Can Achieve Student Body Diversity Without Using Race As
A Factor In Admissions Decisions By Making Greater Use Of NonRacial Preferences. 306. Colleges and universities that have eliminated race-based admissions have maintained or increased their student body diversity by placing greater emphasis on socioeconomic factors, which often strongly correlate with an applicant’s race but are not exclusively reserved for applicants of a particular race or ethnicity. Using socioeconomic
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preferences thus increases racial diversity and achieves the broader diversity that Harvard claims to seek by opening the door of opportunity for poor students of all races.
307. In a recent study of ten leading public universities that ended race-based preferences, researchers found that seven of these schools maintained or increased their enrollment of African-American and Hispanic students by adopting strategies that target socioeconomic inequality. See Halley Potter, Transitioning to Race-Neutral Admissions: An Overview of Experiences in States Where Affirmative Action Has Been Banned, The Future of Affirmative Action (2014).
308. For example, the University of Colorado has devised an admissions formula that gives a significant preference to students from socioeconomically disadvantaged backgrounds. This refined formula takes into consideration numerous socioeconomic factors, including single-parent status, parents’ education level, family income, native language, the number of dependents in the family, whether the applicant attended a rural high school, the percentage of students from the applicant’s high school eligible for free or reduced-price lunch, the school-wide student-to-teacher ratio, and the size of the twelfth-grade class.
309. Under this admissions program, the University of Colorado found not only that the socioeconomic diversity of its incoming class increased substantially, but that racial and ethnic diversity increased as well. African-American and Hispanic acceptance rates to the University of Colorado increased from 56 percent under race-based admissions to 65 percent under class-based admissions. See Matthew N. Gaertner, Advancing College Access with Class-Based Affirmative Action, The Future of Affirmative Action (2014).
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310. Recently, a national simulation was conducted to determine whether the use of socioeconomic preferences could achieve student body diversity without the use of racial preferences at elite universities. See Anthony P. Carnevale, Stephen J. Rose, Jeff Strohl, Achieving Racial and Economic Diversity with Race-Blind Admissions Policy, The Future of Affirmative Action (2014). The study simulated various admissions models at the top-rated 193 colleges and universities “because the dialogue about affirmative action often implies that it is access to these schools and the opportunities they provide in business, social and career advancement that truly matters.” The study examined, among other things, the effect of substituting socioeconomic preference for race-based preferences at America’s elite college and universities using test scores and high-school grades as measures of merit.
311. The national simulation ultimately found that “it is possible to achieve both racial and economic diversity in selective colleges without using race per se as an admissions criterion” and, importantly, that it could be achieved consistent with the understanding “that affirmative action models ought to promote racial diversity as an educational benefit instead of promoting racial diversity for its own sake.”
312. Another study found that increased focus on parental education and wealth—as opposed to income—as a measure of socioeconomic status also can help achieve student body diversity without the use of racial preferences. See Dalton Conley, The Why, What, and How of Class-Based Admissions Policy, The Future of Affirmative Action (2014). The study found that “the most important factor in predicting individual academic success is the education of a parent” and the “economic factor” that mattered most was “parental net worth (that is, wealth) and not income.” Indeed, “wealth
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conceptually captures the legacy of historical inequalities of opportunity better than aspects of class that cannot be literally transferred directly from one generation to the next by signing a check (or a deed or a will).” While African Americans make on the order of 60 to 70 percent of what whites make in income, the median African-American family wealth is just 10 percent of white family wealth.
313. Affording a community-based preference is another means of achieving student body diversity by admitting more socioeconomically disadvantaged students. See Sheryll Cashin, Place not Race: A New Vision of Opportunity in America (2014). African Americans and Hispanics are much more likely to live in neighborhoods with concentrated poverty than whites. See John R. Logan, Separate and Unequal: The Neighborhood Gap for Blacks, Hispanics, and Asians in Metropolitan America (2011), Table 2.
314. Universities have used this community-based homogeneity to promote racial and ethnic diversity through race-neutral means. For example, Texas, California, and Florida have adopted “percent plans” that guarantee admission to state universities for top graduates (based on grades) from each high school in the state. These percentage plans have been successful in promoting community, socioeconomic, and racial diversity.
315. In addition to statewide percentage plans, a university can achieve student body diversity by granting a preference within their existing admissions framework utilizing other community-based metrics, such as an applicant’s zip code. See Danielle Allen, Talent is Everywhere: Using Zip Codes and Merit to Enhance Diversity, The Future of Affirmative Action (2014).
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316. Studies show that students admitted based on socioeconomic as opposed to racial criteria regularly outperform all other admitted students. These students drop out at lower rates, graduate in shorter time periods, and receive better grades.
317. The Espenshade-Radford study found that selective private institutions use racial preferences that are two to three times as large as their socioeconomic preferences.
318. This failure to give weight to socioeconomic preferences is exemplified by Harvard, particularly given the lack of socioeconomic diversity in the student body as compared to racial diversity.
319. Measured in terms of those students receiving federal Pell Grants, which are awarded to students coming from low-income families, Harvard lags far behind other schools. The percentage of students at Harvard who receive Pell Grants has ranged in recent years from 11 percent to 19 percent. In comparison, universities that employ raceneutral admissions had far greater numbers of Pell Grant recipients, including UCLA (35 percent), UC Berkeley (33 percent), and the University of Florida (30 percent). 2014 National Universities Rankings – Social Mobility, Washington Monthly (2014).
320. According to a survey of the 2014 freshman class that The Harvard Crimson conducted, 14 percent reported annual family income above $500,000 and another 15 percent came from families making more than $250,000 per year. In contrast, only 20 percent reported incomes less than $65,000. Taking these statistics at face value, they show that a high school student from the top “1 percent” of the income distribution is approximately 35 times more likely to attend Harvard than one from the bottom 50 percent.
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321. According to former Harvard president Lawrence Summers, only ten percent of students at selective colleges and universities, including Harvard, come from the bottom half of the income scale. See Harvard University President Lawrence H. Summers Commencement Address (2004).
322. By contrast, Harvard places far greater weight on an applicant’s race— regardless of his or her socioeconomic status or the community of origin.
323. By increasing the weight given to an applicant’s socioeconomic status and/or community of origin, Harvard could achieve student body diversity without resorting to the disfavored tool of racial preferences.
B. Harvard Can Achieve Student Body Diversity Without Using Race As A Factor In Admissions Decisions By Making Greater Use Of Financial Aid And Scholarships To Attract Minority Candidates.
324. Relying on socioeconomic instead of racial preferences at the admissions stage is the first step. But Harvard needs to ensure that those underprivileged minorities that benefit from socioeconomic preferences are in a position to accept the offer of admission and enroll at Harvard. To that end, Harvard can achieve student body diversity by increasing its use of financial aid and scholarships.
325. Colleges and universities that have eliminated racial preferences have maintained or increased student body diversity by offering more financial aid to socioeconomically disadvantaged students. For example, the University of California system, which does not use race-based preferences, covers system-wide tuition for students from families with incomes below $80,000. The University of California devotes one-third of tuition revenue to financial aid.
326. Harvard, in contrast, only covers the tuition of students from families with incomes below $65,000. This is a trivial use of Harvard’s vast economic resources.
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Harvard’s $36.4 billion endowment is the largest in the nation; it exceeds the gross domestic product of over 100 nations. Yet it costs students $43,938 per year in tuition alone, and $58,607 overall per year, to attend Harvard.
327. Harvard has the economic resources to increase the coverage of full tuition far beyond the current $65,000 threshold. Doing so would make it possible for underprivileged minorities, especially those in the lower middle class and those who may have slightly higher income levels but less wealth, admitted to Harvard through the increased use of socioeconomic preferences (as opposed to affluent minorities currently admitted due to racial preferences) to be in a position to accept an offer of admission and enroll at Harvard.
C. Harvard Can Achieve Student Body Diversity Without Using Race As A Factor In Admissions Decisions Through Increased Recruitment And Other Steps Designed To Encourage More Qualified Minority Students To Apply For Admission.
328. Harvard can achieve student body diversity by bringing more highly qualified, socioeconomically disadvantaged minorities into its applicant pool.
329. Across the country, there are tens of thousands of high-achieving, socioeconomically disadvantaged minorities who fail to apply to selective schools, including Harvard, at which they would likely be admitted and at which they would enroll if offered sufficient financial aid.
330. One study found that between 25,000 and 35,000 socioeconomically disadvantaged high school seniors obtain an SAT or ACT in the 90th percentile or higher and have a GPA of A- or better. Nearly 6 percent of this group is African American and nearly 8 percent is Hispanic. A great many of these socioeconomically disadvantaged students “undermatch” by applying to and enrolling at colleges and universities less
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selective than the ones to which they could have been admitted. See Caroline Hoxby, Christopher Avery, The Missing “One-Offs”: The Hidden Supply of High-Achieving, Low-Income Students, Brookings Papers on Economic Activity (Spring 2013).
331. The “undermatch” problem is a serious issue in the Ivy League. Among the highly selective Ivy League schools studied by Dr. Sander and Ms. Uppala, the applicant pools of these schools included, on average, less than 20 percent of the socioeconomically disadvantaged students in the country with SAT scores above 2100. The rate is even lower for high-scoring, socioeconomically disadvantaged Asian Americans, in which less than 18 percent of such students are, on average, in the applicant pools of the highly selective Ivy League schools.
332. Universities with race-neutral admissions have increased their student body diversity by improving recruitment of these socioeconomically disadvantaged, highachieving minority students. For example, after race-based admissions were eliminated in Texas, the University of Texas at Austin increased its student body diversity by implementing numerous programs designed to recruit students from underrepresented regions and high schools, including “Longhorn Game Weekends,” which focus on specific geographic regions, and “Longhorn for a Day,” which reaches out to students in underrepresented high schools.
333. Furthermore, a study found that simply mailing a well-designed, targeted brochure to high-achieving, socioeconomically disadvantaged students could be instrumental in causing them to apply to selective colleges and universities. See Sheryll Cashin, Place not Race: A New Vision of Opportunity in America 49 (2014).
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334. Universities also have achieved student body diversity by aggressively recruiting high-achieving community college students, who are more likely to be African American or Hispanic. For example, in 1997, after California banned racial preferences, the University of California substantially increased its recruitment and enrollment of community college students. As a result of the University of California’s efforts, by 2012, about 29 percent of new students enrolling in the University of California system were transfers from community colleges. See Preparing California for Its Future: Enhancing Community College Student Transfer to the University of California (2014).
335. Harvard does little to recruit high-achieving, socioeconomically disadvantaged minority students or high-achieving community college students.
336. Harvard focuses its recruitment in parts of the country with small numbers of socioeconomically disadvantaged achievers and neglects regions with a significant number of such students. For example, Harvard recruits heavily in New England, which has only 3.5 percent of low-income high achievers nationwide, yet neglects Midwest and Rocky Mountain states, which produce 21.2 percent of these students.
337. This failure to recruit socioeconomically disadvantaged students is reflected in Harvard’s applicant pool. Although there are more than 10,000 high schools in the country that have students with the credentials to be admitted to Harvard, only a small fraction of these schools have students who ultimately apply to Harvard.
338. In addition, community college transfer students are a miniscule percentage of Harvard’s student body. Each year, Harvard accepts fewer than three students from community colleges across the country.
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339. Harvard officials have flatly conceded that they make little effort to recruit students from community colleges and other nontraditional educational backgrounds. See Arianna Markel, Harvard Lags in Community College Recruitment, The Harvard Crimson (Dec. 12, 2007).
340. Harvard could achieve its student body diversity without the use of racial preferences by improving its recruitment of socioeconomically disadvantaged, highachieving minorities, and community college students.
D. Harvard Can Achieve Student Body Diversity Without Using Race As A Factor In Admissions Decisions Through The Elimination Of Admissions Policies And Practices That Harm Minority Applicants.
341. Harvard employs a series of admissions practices and policies that make it more difficult for socioeconomically disadvantaged minorities to gain admission. Eliminating these practices and policies would allow Harvard to achieve student body diversity without using racial preferences.
342. Harvard grants an admissions preference to “legacy” applicants. 343. The acceptance rate for legacy applicants to Harvard is about 30 percent, which is roughly five times the rate at which all other applicants are admitted to Harvard. 344. At most universities throughout the country, including Harvard, alumni children are less likely to be socioeconomically disadvantaged or racial minorities than the rest of the student body. Thus, colleges and universities, like Harvard, that grant admissions preferences to legacies give a competitive advantage to mainly white, wealthy applicants, while undermining the chances for admission of socioeconomically disadvantaged and minority applicants. See John Brittain and Eric L. Bloom, Admitting the Truth: The Effect of Affirmative Action, Legacy Preferences, and the Meritocratic
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Ideal on Students of Color in College Admissions, Affirmative Action for the Rich (2010).
345. As a consequence, eliminating legacy preferences in conjunction with other race-neutral admissions policies can achieve student body diversity. Several universities, including Texas A&M University, the University of Georgia, and the University of California, have increased their student body diversity by ending their practice of favoring legacies in the admissions process in conjunction with the elimination of racial preferences.
346. Furthermore, one study found that eliminating legacy preferences in combination with other race-neutral admissions criteria could more than double AfricanAmerican and Hispanic enrollment and more than triple the enrollment of socioeconomically disadvantaged students. See Anthony P. Carnevale, Stephen J. Rose, Jeff Strohl, Achieving Racial and Economic Diversity with Race-Blind Admissions Policy, The Future of Affirmative Action (2014).
347. Harvard can achieve student body diversity without using racial preferences by eliminating legacy admissions preferences in conjunction with other raceneutral measures.
348. Eliminating legacy preferences is a workable race-neutral strategy. Research finds that the existence of legacy preferences does not increase alumni donations to an institution. See Chad Coffman, Tara O’Neil, and Brian Starr, An Empirical Analysis of Legacy Preferences on Alumni Giving at Top Universities, Affirmative Action for the Rich (2010).
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349. Harvard also grants admissions preferences to non-legacy students whose parents make significant donations to Harvard, notwithstanding its $36.4 billion endowment.
350. For example, a wealthy New Jersey real estate developer who did not attend Harvard pledged $2.5 million to Harvard in 1998. That same year, his son applied to Harvard, even though he did not take demanding classes in high school and his test scores were below Ivy League standards. His son’s high school advisors were “surprised when he applied to Harvard—and dismayed when he was admitted.”
351. As one of his advisors explained, “[t]here was no way anybody in the administrative office of the school thought he would on the merits get into Harvard. His GPA did not warrant it, his SAT scores did not warrant it. We thought for sure, there was no way this was going to happen. Then, lo and behold, [he] was accepted. It was a little bit disappointing because there were at the time other kids we thought should really get in on the merits, and they did not.”
352. Minority students are far less likely to be children of wealthy donors. Thus, colleges and universities, like Harvard, that grant admissions preferences to children of wealthy donors give a competitive advantage to mainly white applicants while undermining the chances for admission of minority applicants.
353. Harvard’s preferences for legacies and children of wealthy donors often operate in tandem to the detriment of minority applicants. For example, one applicant, who was a fifth-generation Harvard legacy, scored 1440 on her SATs, which is below Harvard’s average, and ranked in the second quartile her high school class. Before she applied to Harvard, her father donated $1 million to the university and pledged an
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additional $5 million in future years. Shortly after her junior year, the applicant’s father arranged for her to meet the Dean of Admissions, William Fitzsimmons. She was admitted to Harvard the following year.
354. When asked whether it was fair that she was admitted, she stated that legacy preferences are a “valid thing for a college to do. Any college has to be careful about the students it lets in from a social perspective. If you let in too many of any one group, it can affect social cohesiveness. At one time, Harvard had too many Asian American students…. It’s important to Harvard to have people who know what it means to work hard, make good friends, and go out at night. A lot more alumni children are well-rounded kids, probably because they come from more stable families.”
355. Harvard can achieve student body diversity without using racial preferences by eliminating admissions preferences for children of wealthy donors, both legacies and non-legacies, in conjunction with other race-neutral measures.
356. Harvard also operates a unique form of admissions known as the “Z-list.” The Z-list is an admissions process under which Harvard admits a select group of students on the condition that they take a year off before enrolling in Harvard.
357. Harvard admits between 20 and 50 students through the Z-list every year. 358. Harvard principally uses the Z-list to admit legacies and children of affluent families who cannot gain admission through the ordinary course and who can afford to take a year off before enrolling in college. 359. In 2010, The Harvard Crimson interviewed 28 students admitted under the Z-list. Of these students, 18 were children of Harvard alumni and all but four received no financial aid from Harvard.
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360. Students admitted through the Z-list are overwhelmingly wealthy and white, and have a worse academic record than the rest of the student body.
361. For example, in 2006, Harvard used the Z-list to admit the granddaughter of a Harvard alumnus who had endowed a professorship in computer science, even though she had inferior admissions credentials. By contrast, one of her high school classmates, Jennifer Soo Hoo, who is of Chinese descent, had comparatively outstanding credentials: she was a Cum Laude Society member, an Advance Placement Scholar, a National Merit Scholar, an all-conference center back on the soccer team, and scored a 34 out of 36 on the ACT. Jennifer was rejected by every Ivy League school to which she applied.
362. Harvard can achieve student body diversity without using racial preferences by eliminating Z-list admissions in conjunction with other race-neutral measures.
363. Finally, Harvard admits applicants through an early admission program. Early admissions is a practice in which schools allow students to submit their application in the early Fall if they apply to only one school or promise to attend the school if admitted.
364. Early admission programs, like Harvard’s program, usually benefit wealthier and better-informed students because these students have the resources to submit their application early and do not need to hold out for the prospect of financial aid. See Justin Pope, Harvard Drops Early Admissions, Saying They Favor Wealthier Students Over Minorities, Poor, Associated Press (Sept. 12, 2006).
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365. By contrast, socioeconomically disadvantaged students and minorities face a disadvantage under early admission programs because they often receive inadequate information and counseling and lack the economic resources to commit to a school so early in the process.
366. Because early admissions undermine the chances of socioeconomically disadvantaged and minority applicants, in 2006, Harvard terminated this program. According to Harvard’s then-President Derek Bok, “We think this will produce a fairer process because the existing process has been shown to advantage those who are already advantaged.”
367. Similarly, Dean of Admissions William Fitzsimmons supported ending early admissions because “[t]here are lots of very talented students out there from poor and moderate-income backgrounds who have been discouraged by this whole hocuspocus of early admissions.”
368. Harvard reinstated early admissions in 2011. The reintroduction of early admissions has again hurt the ability of socioeconomically disadvantaged and minority students to apply and be admitted to Harvard.
369. Harvard can achieve student body diversity without using racial preferences by eliminating its early admission program in conjunction with other raceneutral measures.
E. Achieving Student Body Diversity Through Race-Neutral Means Eliminates The Heavy Cost Imposed By The Use Of Racial Preferences.
370. Any assessment of the feasibility of race-neutral alternatives must also take into account the heavy costs of not employing them. The costs of continuing to use
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racial preferences, when workable race-neutral alternatives exist, are high from both a legal and a practical perspective.
371. As a legal matter, “[d]istinctions between citizens solely because of their ancestry are by their very nature odious to a free people, and therefore are contrary to our traditions and hence constitutionally suspect.” Fisher v. University of Texas at Austin, 133 S. Ct. 2411, 2418 (2013) (citations and quotations omitted).
372. As a result, the Fourteenth Amendment, and therefore Title VI, “forbids the use even of narrowly drawn racial classifications except as a last resort.” Croson, 488 U.S. at 519 (Kennedy, J., concurring in part and concurring in the judgment).
373. Harvard’s practice of labeling all applicants according to broad racial categories illustrates why such classifications are pernicious and always create the “danger that a racial classification is merely the product of unthinking stereotypes or a form of racial politics.” Croson, 488 U.S. at 493.
374. These racial categories lump together students in categories such as “African American” or “Hispanic” or “Asian American,” even though they come from vastly different cultures, experiences, and backgrounds.
375. For example, Harvard’s category of “Asian Americans” comprises roughly 60 percent of the world’s population, including individuals of Chinese, Japanese, Korean, Vietnamese, Cambodian, Hmong, and Indian descent.
376. While many Asian Americans have been in the United States for generations, others are recent immigrants or children of immigrants. Some Asian Americans came to the United States to escape communism, authoritarianism, war, and
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poverty, while others simply sought out greater opportunities. Some Asian Americans come from highly educated families, but many others do not.
377. Asian Americans also have a wide range of religious beliefs, including Christianity, Islam, Buddhism, Judaism, Hinduism and many others. Some come from cultures that aggressively promote education, while many others come from cultures that take a less demanding approach.
378. Thus, for example, Indian-American students are different from JapaneseAmerican students; Vietnamese-American students are different from Chinese-American students; and students from Mainland China, Hong Kong, and Taiwan all have unique perspectives and cultural experiences.
379. Given this diversity, it is lamentable for Harvard to lump all Asian Americans together in the admissions process. Yet this categorization is the inevitable byproduct of using group-based racial classifications instead of employing race-neutral alternatives that are able to account for the vast differences among applicants.
380. Racial classifications also have a stigmatizing effect on the supposed beneficiaries of these policies. Irrespective of whether an individual African-American or Hispanic applicant is admitted to Harvard because of a racial preference, so long as racial preferences exist, it will often be assumed that race is the reason for the applicant’s admission to the school. This stigma can have a devastating effect on the psyche of impressionable students.
381. For example, according to one African American who attended an elite liberal arts college, upon arriving at school, “I was immediately stereotyped and put into a box because I was African-American. And that made it harder to perform. . . . There
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was a general feeling that all blacks on campus were there either because they were athletes or they came through a minority-recruitment program and might not really belong there.” Shaken by the experience, the student dropped out after his freshman year.
382. Harvard can eliminate the harmful effects these unfair stereotypes cause by using race-neutral alternatives.
383. Finally, the “mismatch effect” of racial preferences far too frequently put the supposed beneficiaries of race-based admissions policies in a position where they cannot succeed academically in order to fulfill the university’s social-engineering vision.
384. This “mismatch” effect happens when a school employs such a large admissions preference that the student is academically damaged in a variety of ways by being placed in an academic environment where most of the student’s peers have substantially stronger levels of academic preparation.
385. For example, a student who would flourish at a less elite school instead finds himself or herself at Harvard, where the professors are not teaching at a pace designed for him or her. Instead, they are teaching to the “middle” of the class, introducing terms and concepts at a speed that is unnerving even to the best-prepared student.
386. The student who is underprepared relative to others in that class falls behind from the start and becomes increasingly lost as the professor and classmates race ahead. The student’s grades on his or her first exams or papers put him or her at the bottom of the class. Worse, the experience may well induce panic and self-doubt,
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making learning even more difficult, thus creating a vicious cycle that only exacerbates the problem.
387. The “mismatch effect” has been documented in dozens of studies. See, e.g., Peter Arcidiacono, Esteban M. Aucejo, and Ken Spenner, What Happens After Enrollment? An Analysis of the Time Path of Racial Differences in GPA and Major Choice (2011); U.S. Commission on Civil Rights, Encouraging Minority Students to Pursue Science, Technology, Engineering and Math Careers, Briefing Report (October 2010); Richard Sander and Roger Bolus, Do Credential Gaps in College Reduce the Number of Minority Science Graduates? (2009); Richard Sander, A Systemic Analysis of Affirmative Action in American Law Schools, 57 Stan. L. Rev. 367 (2004); Stephen Cole and Elinor Barber, Increasing Faculty Diversity (2003); Rogers Elliott, A. Christopher Strenta, Russell Adair, Michael Matier and Jannah Scott, The Role of Ethnicity in Choosing and Leaving Science in Highly Selective Institutions, 37 Research in Higher Education 681 (1996).
388. As this research demonstrates, African-American college freshmen are more likely to aspire to science or engineering careers than are white freshmen, but mismatch causes African Americans to abandon these fields at twice the rate of whites.
389. As a consequence, African Americans who start college interested in pursuing a doctorate and an academic career are twice as likely to be derailed from this path if they attend a school where they are mismatched.
390. Furthermore, about half of African-American college students rank in the bottom 20 percent of their classes.
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391. Mismatch also creates social problems on campus. The academic research shows that interracial friendships are more likely to form among students with relatively similar levels of academic preparation; thus, African Americans and Hispanics are more socially integrated on campuses where they are less academically mismatched.
392. Harvard has and is continuing to experience the problems associated with the “mismatch” effect as documented in major, unrebutted empirical studies that either included Harvard or included studies of close peer institutions.
393. “Academic mismatch” has been documented at Harvard by sociologists Stephen Cole and Elinor Barber. See Stephen Cole and Elinor Barber, Increasing Faculty Diversity (2003). Cole and Barber undertook their research in large part at the urging of Harvard President Neil Rudenstein, and the Council of Ivy League Presidents financially supported their work. The purpose of the study was to understand why there were so few underrepresented minorities—particularly African Americans—in the academic pipeline leading to university faculty positions.
394. Cole and Barber found that a prime cause of the constrained pipeline was academic mismatch. Promising African American and Hispanic students who were interested in academic careers sought to go to selective colleges. Through the operation of racial preferences, these students often found themselves being admitted and courted by super-elite colleges, and often unwittingly found themselves at schools where their level of academic preparation was far below the median. In these environments, the students survived but did not flourish. Their grades tended to be well below the median, and in large numbers they soured on the prospect of pursuing a career in academia. The study found that otherwise similar students who went to less elite schools—such as
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flagship state universities—performed better and retained their interest in academic careers at much higher rates.
395. Harvard also has a documented “mismatch” problem in the sciences. In 2004, two psychologists at the University of Virginia published a peer-reviewed study of minority attrition in the sciences. See Frederick L. Smyth and John J. McArdle, Ethnic and Gender Differences in Science Graduation at Selective Colleges With Implications For Admission Policy and College Choice, Research In Higher Education, Vol. 45, No. 4 (June 2003). These scholars gained permission to use the College and Beyond dataset assembled by the Mellon Foundation. This dataset, which included comprehensive data from several Ivy League colleges (Columbia, Princeton, and Yale) as well as approximately twenty less selective schools, served as the basis for the well-known study of affirmative action, The Shape of the River (1998).
396. Smyth and McArdle examined what factors affected the success of students in science, technology, engineering, and math (“STEM”) fields of study. They found that a critical factor was a student’s academic preparation relative to her peers. Moreover, they found that this effect was essentially identical for white, African American, and Hispanic students. In all cases, students who attended a school where their level of academic preparation was substantially lower than those of their peers were far more likely to drop out of STEM fields as compared to identical students who attended schools where their relative peer position was higher. The effect was so large that Smyth and McArdle advised high school counselors to take potential mismatch into account in helping students understand the pros and cons of attending “reach” schools.
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397. In 1996, a group of researchers at Dartmouth University, led by Dartmouth psychologist Rogers Elliott, published a peer-reviewed study that examined rates of STEM attrition at four Ivy League colleges. See Rogers Elliott, A. Christopher Strenta, Russell Adair, Michael Matier and Jannah Scott, The Role of Ethnicity in Choosing and Leaving Science in Highly Selective Institutions, 37 Research in Higher Education 681 (1996). They found that although African-American freshmen aspired to STEM majors at roughly the same rate as other students, only about 10 percent of African-American aspirants actually achieved bachelor degrees in STEM fields. Many of these students switched to majors in the humanities and social sciences; some failed to graduate at all. The study found that a principal reason for the high attrition rate of African Americans was their relative position among a group of peers who generally had much higher levels of academic preparation, and could thus compete effectively in the demanding, sequential, rigorously graded STEM curricula.
398. Harvard has disregarded the “mismatch effect” that is harming the many African American and Hispanic students who are admitted to and enroll at Harvard because of its large admissions preference.
399. Harvard can eliminate this harmful mismatch and allow students to excel at schools for which they are most prepared by eliminating the use of racial preferences and employing race-neutral alternatives that bring high-performing, socioeconomically disadvantaged minorities into the applicant pool. XI. GOVERNING LAW
400. Title VI of the Civil Rights Act of 1964 provides: “No person in the United States shall, on the ground of race, color, or national origin, be excluded from
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participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 42 U.S.C. § 2000d.
401. Under Title VI, “the term ‘program or activity’ and the term ‘program’ mean all of the operations … of a college, university, or other postsecondary institution, or a public system of higher education … any part of which is extended Federal financial assistance.” 42 U.S.C. § 2000d-4a.
402. An institution that accepts federal funds violates Title VI when it engages in racial or ethnic discrimination that violates the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. See Gratz v. Bollinger, 539 U.S. 244, 257 n.23 (2003) (“We have explained that discrimination that violates the Equal Protection Clause of the Fourteenth Amendment committed by an institution that accepts federal funds also constitutes a violation of Title VI.”) (citing Alexander v. Sandoval, 532 U.S. 275, 281 (2001)).
403. The Fourteenth Amendment provides, in relevant part, that no person shall be denied “the equal protection of the laws.” The “central mandate” of equal protection is “racial neutrality” by the government or institution subject to the Fourteenth Amendment. Miller v. Johnson, 515 U.S. 900, 904 (1995). “Whenever the government treats any person unequally because of his or her race, that person has suffered an injury that falls squarely within the language and spirit of the Constitution’s guarantee of equal protection.” Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 229-30 (2000).
404. “Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people, and therefore are contrary to our traditions and hence constitutionally suspect.” Fisher, 133 S. Ct. at 2419 (citations and quotations omitted).
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Thus, “any official action that treats a person differently on account of race or ethnic origin is inherently suspect.” Id. (citation and quotations omitted). In other words, “because racial classifications so seldom provide a relevant basis for disparate treatment, the Equal Protection Clause demands that racial classifications be subjected to the most rigid scrutiny.” Id. (citations and quotations omitted).
405. “[A]ll racial classifications … must be analyzed by a reviewing court under strict scrutiny.” Adarand, 515 U.S. at 227. “Strict scrutiny is a searching examination, and it is the government [or institution subject to the Fourteenth Amendment through Title VI] that bears the burden to prove that the reasons for any racial classification are clearly identified and unquestionably legitimate.” Fisher, 133 S. Ct. at 2419 (citations and quotations omitted). Strict scrutiny thus requires a “detailed judicial inquiry to ensure that the personal right to equal protection of the laws has not been infringed.” Adarand, 515 U.S. at 227.
406. In particular, strict scrutiny requires a “detailed examination, both as to ends and to means.” Adarand, 515 U.S. at 236. When those governmental or other institutions subject to the Fourteenth Amendment directly or through Title VI implement policies and practices that “touch upon an individual’s race or ethnic background, he is entitled to a judicial determination that the burden he is asked to bear on that basis is precisely tailored to serve a compelling governmental interest.” Fisher, 133 S. Ct. at 2417 (citations and quotations omitted).
407. Racial “classifications are constitutional only if they are narrowly tailored to further compelling governmental interests.” Grutter, 539 U.S. at 326.
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408. “Strict scrutiny requires the university to demonstrate with clarity that its purpose or interest is both constitutionally permissible and substantial, and that its use of the classification is necessary to accomplish that purpose.” Fisher, 133 S. Ct. at 2418.
409. To meet strict scrutiny, the end must be “compelling”—not merely legitimate or important. To be narrowly tailored, “the means chosen” must “fit” the unmet compelling interest “so closely that there is little or no possibility that the motive for the classification was illegitimate racial prejudice or stereotype.” Croson, 488 U.S. at 493 (citations and quotations omitted). In other words, “racial classifications, however, compelling their goals, are potentially so dangerous that they may be employed no more broadly than the interest demands.” Grutter, 539 U.S. at 342.
410. “To survive strict scrutiny,” moreover, the institution “must do more than assert a compelling state interest—it must demonstrate that its law is necessary to serve the asserted interest.” Burson v. Freeman, 504 U.S. 191, 199 (1992). The institution must establish the necessity of using race by a “strong basis in evidence” because “the mere recitation” of a compelling interest is “not an automatic shield which protects against any inquiry” into the justification for race-based action.” Croson, 488 U.S. at 495, 500.
411. Strict scrutiny “forbids the use even of narrowly drawn racial classifications except as a last resort.” Id. at 519 (Kennedy, J., concurring in part and concurring in the judgment).
412. An institution’s use of race or ethnicity that is in any way motivated by “prejudice or stereotype” against a particular group violates the Fourteenth Amendment and therefore violates Title VI. Croson, 488 U.S. at 493. “[T]he Equal Protection Clause
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prohibits a State [or institution subject to the Fourteenth Amendment through Title VI] from taking any action based on crude, inaccurate racial stereotypes.” Batson v. Kentucky, 476 U.S. 79, 104 (1986); see also Thomas v. Eastman Kodak Co., 183 F.3d 38, 42 (1st Cir. 1999) (“Title VII’s prohibition against ‘disparate treatment because of race’ extends both to employer acts based on conscious racial animus and to employer decisions that are based on stereotyped thinking or other forms of less conscious bias.”).
413. In addition to direct evidence of discrimination, racial “prejudice or stereotype” may be proven through circumstantial evidence. See Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1977) (“Determining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available.”). The Supreme Court has identified five, non-exhaustive “subjects of proper inquiry in determining whether racially discriminatory intent existed” based on circumstantial evidence. Id. at 268.
414. First, the Court looks to whether the policy, notwithstanding its purportedly neutral rationale, “bears more heavily on one race than another. . . . Sometimes a clear pattern, unexplainable on grounds other than race, emerges from the effect of the state action even when the governing legislation appears neutral on its face.” Id. at 266.
415. Second, the Court looks to “the historical background” of the policy, “particularly if it reveals a series of official actions taken for invidious purposes.” Id. at 267.
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416. Third, “[t]he specific sequence of events leading up the challenged decision also may shed some light on the decisionmaker’s purposes.” Id.
417. Fourth, “[d]epartures from the normal procedural sequence also might afford evidence that improper purposes are playing a role. Substantive departures too may be relevant, particularly if the factors usually considered important by the decisionmaker strongly favor a decision contrary to the one reached.” Id.
418. Fifth, and last, “[t]he legislative or administrative history may be highly relevant, especially where there are contemporary statements by members of the decisionmaking body, minutes of its meetings, or reports.” Id. at 268.
419. Even if not motivated by prejudice or stereotype, a racial classification violates the Fourteenth Amendment and therefore violates Title VI if it is a quota. In the educational setting, then, “universities cannot establish quotas for members of certain racial groups or put members of those groups on separate admissions tracks. Nor can universities insulate applicants who belong to certain racial or ethnic groups from the competition for admission.” Grutter, 539 U.S. at 334 (citation omitted).
420. Moreover, a university’s policy violates the Fourteenth Amendment and therefore violates Title VI if it amounts to “racial balancing, which is patently unconstitutional.” Id. at 329. Racial balancing is a program designed “to assure within [the school’s] student body some specified percentage of a particular group merely because of its race or ethnic origin.” Id. (citations and quotation omitted). “[P]roportional representation” is never a constitutional “rationale for programs of preferential treatment.” Id. at 343.
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421. The only interest in using racial preferences in higher education that the Supreme Court has accepted as “compelling” is the interest “in obtaining the educational benefits that flow from a diverse student body.” Grutter, 539 U.S. at 343. Redressing past discrimination does “not serve as a compelling interest, because a university’s broad mission of education is incompatible with making the judicial, legislative, or administrative findings of constitutional or statutory violations necessary to justify remedial racial classification.” Fisher, 133 S. Ct. at 2417 (citations and quotations omitted).
422. The interest in student body diversity the Supreme Court has found compelling “is not an interest in simply ethnic diversity, in which a specified percentage of the student body is in effect guaranteed to be members of selected ethnic groups, with the remaining percentage an undifferentiated aggregation of students.” Fisher, 133 S. Ct. at 2418 (citation and quotations omitted). “[C]ritical mass is defined by reference to the educational benefits that diversity is designed to produce.” Grutter, 539 U.S. at 330.
423. Even in the pursuit of critical mass, the Supreme Court has permitted race to be used only as a “plus” factor in admissions decisions. Id. at 333. “[I]t remains at all times the University’s obligation to demonstrate, and the Judiciary’s obligations to determine, that admissions processes ‘ensure that each applicant is evaluated as an individual and not in a way that makes an applicant’s race or ethnicity the defining feature of his or her application.’” Fisher, 133 S. Ct. at 2418 (quoting Grutter, 539 U.S. at 337). Thus, even if “the University has established that its goal of diversity is consistent with strict scrutiny, … there must still be a further judicial determination that the admissions process meets strict scrutiny in its implementation. The University must
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prove that the means chosen by the University to attain diversity are narrowly tailored to that goal.” Id. at 2419-20.
424. “Narrow tailoring also requires that the reviewing court verify that it is ‘necessary’ for a university to use race to achieve the educational benefits of diversity. This involves a careful judicial inquiry into whether a university could achieve sufficient diversity without using racial classifications.” Id. at 2420 (internal citation omitted). Accordingly, strict scrutiny uniformly “require[s] a court to examine with care, and not defer to, a university’s ‘serious, good faith consideration of workable race-neutral alternatives.’” Id. (quoting Grutter, 539 U.S. at 339- 340).
425. “Consideration by the university is of course necessary, but it is not sufficient to satisfy strict scrutiny: The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity. If a nonracial approach … could promote the substantial interest about as well and at tolerable administrative expense, then the university may not consider race.” Id. (citations and quotations omitted).
426. As a consequence, “strict scrutiny imposes on the university the ultimate burden of demonstrating, before turning to racial classifications, that available, workable race-neutral alternatives do not suffice.” Id. (emphasis added). XII. CLAIM FOR RELIEF
427. Harvard’s use of racial preferences in undergraduate admissions violates Title VI of the Civil Rights Act of 1964. Plaintiff should be granted relief on that claim for a host of reasons. First, Harvard is intentionally discriminating against AsianAmerican applicants. Second, Harvard is engaging in racial balancing. Third, Harvard’s
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use of racial preference is not narrowly tailored because Harvard is not pursuing the critical-mass interest found permissible in Grutter. Fourth, Harvard’s use of racial preferences is not narrowly tailored because Harvard is not using this disfavored tool merely to fill the “few places” left in its incoming class contrary to the “Harvard College Admissions Program” submitted to the Supreme Court in Bakke. Fifth, Harvard is not fully utilizing a number of race-neutral alternatives that can achieve student body diversity. Finally, whether or not Harvard is found to be acting permissibly under Supreme Court precedent, the Supreme Court should overrule any decision holding that the Fourteenth Amendment and therefore Title VI ever permits the use of racial preferences to achieve “diversity.”
COUNT I Violation of 42 U.S.C. § 2000d et seq. (Intentional Discrimination Against Asian Americans) 428. Plaintiff incorporates the allegations and averments contained in paragraphs 1-427 as if fully set forth herein. 429. Harvard, a recipient of federal funds, intentionally discriminated against certain of Plaintiff’s members on the basis of their race, color, or ethnicity in violation of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq., by employing an undergraduate admissions policy that intentionally discriminates against Asian-American applicants on the basis of race or ethnicity. 430. Harvard has conceded that, because it uses a racial criterion in its admissions process and receives federal funds, it is subject to potential liability for violations of Title VI if it is found to have discriminated on the basis of race in its admissions process. See Harvard Grutter Amicus Brief at 2 (“Because Title VI of the
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Civil Rights Act of 1964 forbids institutions that receive federal funds from engaging in racial ‘discrimination,’ the ability of private colleges and universities to exercise their institutional competence could well be dramatically compromised by any new limits . . . on state university admissions criteria or procedures.”); Harvard Fisher Amicus Brief 3 (stating that “Title VI of the Civil Rights Act of 1964 forbids institutions that receive federal funds from engaging in racial ‘discrimination,” and so Harvard’s “efforts to attain diverse student bodies could be compromised” if limits were placed on the university’s admissions procedures).
431. Title VI is privately enforceable. 432. Discrimination that violates the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution constitutes a violation of Title VI when committed by an institution that accepts federal funds. 433. An institution’s use of race or ethnicity that is in any way motivated by prejudice or stereotype against a particular group violates the Fourteenth Amendment and therefore violates Title VI. 434. Harvard has intentionally discriminated against Asian-American applicants for admission on the basis of race or ethnicity based on prejudicial and stereotypical assumptions about their qualifications. 435. Harvard officials have made prejudicial and stereotypical statements about Asian-American applicants for admission. Among other things, Harvard officials have made racially stereotypical statements assuming that, as a group, Asian Americans all have same academic interests, experiences, and personal attributes and that Asian Americans, as a group, lack certain qualities that Harvard values.
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436. Harvard’s admissions system has a disproportionately negative effect on Asian-American applicants for admission that is not explainable on grounds other than intentional discrimination on the basis of race or ethnicity. As the statistical evidence demonstrates, Asian Americans are underrepresented at Harvard in relation to their share of the applicant pool and are massively underrepresented in relation to the share of the highly qualified portion of Harvard’s applicant pool. Asian Americans represent roughly 46 percent of the highly qualified portion of Harvard’s applicant pool, yet they represent only about 17 percent of those admitted and/or enrolled at Harvard over a multi-year period.
437. Harvard has a long and unfortunate history of intentional discrimination on the basis of race or ethnicity, including a history of intentional discrimination against Asian Americans. The Harvard Plan itself is a product of admissions policies created to advance an invidious purpose. Harvard has a history of using the rubric of “holistic” admissions in general, and the Harvard Plan in particular, to limit the admission of Jewish applicants and other minority groups. Indeed, Harvard is using the same pretextual excuses to justify its disparate treatment of Asian Americans that it used to deny that it was discriminating against Jewish applicants in the past. In short, Harvard’s intentional discrimination against Asian-American applicants exhibits the same pattern as its previous discrimination against Jewish applicants.
438. Harvard’s departure from its normal procedures, including its abrupt decision to no longer make public the application figures grouped by racial category, demonstrates that steps were taken for the improper purpose of engaging in intentional discrimination on the basis of race or ethnicity.
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439. Harvard’s substantive decision to abandon or place considerably less reliance, when it comes to Asian Americans, on the academic factors it usually considers important for purposes of granting or denying admission demonstrates that Harvard is engaging in intentional discrimination on the basis of race or ethnicity.
440. Plaintiff’s members have been and will continue to be injured because Harvard has and will continue to deny them the opportunity to compete for admission to Harvard on equal footing with other applicants on the basis of race or ethnicity due to its intentionally discriminatory admissions policies and procedures.
441. Plaintiff is entitled to a declaratory judgment, pursuant to 28 U.S.C. § 2201, and a permanent injunction because there is no plain, adequate, or speedy remedy at law to prevent Harvard from continuing to use admissions policies and procedures that discriminate on the basis of race or ethnicity in violation of Title VI of the Civil Rights Act of 1964 and because the harm Plaintiff’s members will otherwise continue to suffer is irreparable.
442. Plaintiff is entitled to attorneys’ fees and costs pursuant to 42 U.S.C. § 1988.
COUNT II Violation of 42 U.S.C. § 2000d et seq.
(Racial Balancing) 443. Plaintiff incorporates the allegations and averments contained in paragraphs 1-442 as if fully set forth herein. 444. Harvard, a recipient of federal funds, intentionally discriminated against certain of Plaintiff’s members on the basis of their race, color, or ethnicity in violation of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq., by employing an
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undergraduate admissions policy that balances the class according to its racial or ethnic composition.
445. Harvard has conceded that, because it uses a racial criterion in its admissions process and receives federal funds, it is subject to potential liability for violations of Title VI if it is found to have discriminated on the basis of race in its admissions process. See Harvard Grutter Amicus Brief at 2 (“Because Title VI of the Civil Rights Act of 1964 forbids institutions that receive federal funds from engaging in racial ‘discrimination,’ the ability of private colleges and universities to exercise their institutional competence could well be dramatically compromised by any new limits . . . on state university admissions criteria or procedures.”); Harvard Fisher Amicus Brief 3 (stating that “Title VI of the Civil Rights Act of 1964 forbids institutions that receive federal funds from engaging in racial ‘discrimination,” and so Harvard’s “efforts to attain diverse student bodies could be compromised” if limits were placed on the university’s admissions procedures).
446. Title VI is privately enforceable. 447. Discrimination that violates the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution constitutes a violation of Title VI when committed by an institution that accepts federal funds. 448. A university that uses its admissions system to pursue quotas or proportional representation of racial or ethnic groups either in the entering class or in the overall student body violates the Fourteenth Amendment and therefore violates Title VI.
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449. The remarkable stability of Harvard’s admissions figures across racial and ethnic groups—especially in the overall student body—demonstrates that Harvard is seeking proportional representation and therefore is engaged in racial balancing.
450. There is no non-discriminatory reason that could justify admissions figures this stable across all racial groups over a period of several years given the unique characteristics of each applicant for admission. If Harvard were truly treating each applicant for admission as an individual, as it professes to do, “[o]ne would expect the percentage of specified minority enrollees produced by such a such a system to vacillate widely from year to year, reflecting changes in each year’s applicant pool.” Alan Dershowitz and Laura Hanft, Affirmative Action and the Harvard College DiversityDiscretion Model: Paradigm or Pretext, 1 Cardozo L. Rev. 379, 382 n.13 (1979). That is not happening.
451. The pursuit of “critical mass” could never justify admissions figures this stable given the balancing that occurs between African-American and Hispanic applicants. But even if the pursuit of “critical mass” led to stable admissions figures for African Americans and Hispanics, which it did not, that would not provide a nondiscriminatory explanation for why the white and Asian-American admissions and enrollment figures have been this stable over a multi-year period.
452. The stability of Harvard’s admission and enrollment figures across all racial groups notwithstanding the massive changes in the racial and ethnic makeup of Harvard’s admissions pool over time—especially the significant increase in highly qualified Asian-American applicants—confirms that Harvard is engaged in racial balancing.
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453. Plaintiff’s members have been and will continue to be injured because Harvard has and will continue to deny them the opportunity to compete for admission to Harvard on equal footing with other applicants on the basis of race or ethnicity due to its intentionally discriminatory admissions policies and procedures.
454. Plaintiff is entitled to a declaratory judgment, pursuant to 28 U.S.C. § 2201, and a permanent injunction because there is no plain, adequate, or speedy remedy at law to prevent Harvard from continuing to use admissions policies and procedures that discriminate on the basis of race or ethnicity in violation of Title VI of the Civil Rights Act of 1964 and because the harm Plaintiff’s members will otherwise continue to suffer is irreparable.
455. Plaintiff is entitled to attorneys’ fees and costs pursuant to 42 U.S.C. § 1988.
COUNT III Violation of 42 U.S.C. § 2000d et seq. (Failure To Use Race Merely As A “Plus” Factor In Admissions Decisions) 456. Plaintiff incorporates the allegations and averments contained in paragraphs 1-455 as if fully set forth herein. 457. Harvard, a recipient of federal funds, intentionally discriminated against certain of Plaintiff’s members on the basis of their race, color, or ethnicity in violation of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq., by employing an undergraduate admissions policy that is not narrowly tailored because it does not use race merely as a “plus” factor in order to achieve student body diversity. 458. Harvard has conceded that, because it uses a racial criterion in its admissions process and receives federal funds, it is subject to potential liability for
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violations of Title VI if it is found to have discriminated on the basis of race in its admissions process. See Harvard Grutter Amicus Brief at 2 (“Because Title VI of the Civil Rights Act of 1964 forbids institutions that receive federal funds from engaging in racial ‘discrimination,’ the ability of private colleges and universities to exercise their institutional competence could well be dramatically compromised by any new limits . . . on state university admissions criteria or procedures.”); Harvard Fisher Amicus Brief 3 (stating that “Title VI of the Civil Rights Act of 1964 forbids institutions that receive federal funds from engaging in racial ‘discrimination,” and so Harvard’s “efforts to attain diverse student bodies could be compromised” if limits were placed on the university’s admissions procedures).
459. Title VI is privately enforceable. 460. Discrimination that violates the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution constitutes a violation of Title VI when committed by an institution that accepts federal funds. 461. Harvard is not complying with the requirement of narrow tailoring because it is not using race merely as a “plus” factor in admissions decisions in order to achieve student body diversity. 462. The statistical evidence shows that each applicant for admission is not evaluated as an individual. Instead, race or ethnicity is the defining feature of the application. That is especially true for Asian-American applicants. Only using race or ethnicity as a dominant factor in admissions decisions could account for the remarkably low admission rate for high-achieving Asian-American applicants.
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463. Plaintiff’s members have been and will continue to be injured because Harvard has and will continue to deny them the opportunity to compete for admission to Harvard on equal footing with other applicants on the basis of race or ethnicity due to its intentionally discriminatory admissions policies and procedures.
464. Plaintiff is entitled to a declaratory judgment, pursuant to 28 U.S.C. § 2201, and a permanent injunction because there is no plain, adequate, or speedy remedy at law to prevent Harvard from continuing to use admissions policies and procedures that discriminate on the basis of race or ethnicity in violation of Title VI of the Civil Rights Act of 1964 and because the harm Plaintiff’s members will otherwise continue to suffer is irreparable.
465. Plaintiff is entitled to attorneys’ fees and costs pursuant to 42 U.S.C. § 1988.
COUNT IV Violation of 42 U.S.C. § 2000d et seq. (Failure To Use Race To Merely Fill The Last “Few Places” In The Incoming Freshman Class) 466. Plaintiff incorporates the allegations and averments contained in paragraphs 1-465 as if fully set forth herein. 467. Harvard, a recipient of federal funds, intentionally discriminated against certain of Plaintiff’s members on the basis of their race, color, or ethnicity in violation of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq., by employing an undergraduate admissions policy that is not narrowly tailored because it does not merely use race as a factor in filling the last “few places” in the entering freshman class. 468. Harvard has conceded that, because it uses a racial criterion in its admissions process and receives federal funds, it is subject to potential liability for
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violations of Title VI if it is found to have discriminated on the basis of race in its admissions process. See Harvard Grutter Amicus Brief at 2 (“Because Title VI of the Civil Rights Act of 1964 forbids institutions that receive federal funds from engaging in racial ‘discrimination,’ the ability of private colleges and universities to exercise their institutional competence could well be dramatically compromised by any new limits . . . on state university admissions criteria or procedures.”); Harvard Fisher Amicus Brief 3 (stating that “Title VI of the Civil Rights Act of 1964 forbids institutions that receive federal funds from engaging in racial ‘discrimination,” and so Harvard’s “efforts to attain diverse student bodies could be compromised” if limits were placed on the university’s admissions procedures).
469. Title VI is privately enforceable. 470. Discrimination that violates the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution constitutes a violation of Title VI when committed by an institution that accepts federal funds. 471. In its Bakke amicus brief, Harvard informed the Supreme Court that it was using race as a factor in admissions decisions only when it had “a few places left to fill” in the entering freshman class. But to the extent that Harvard ever used race in this way, given that the Harvard Plan itself was the product of racial and ethnic discrimination, it clearly is no longer using race in this fashion. 472. In its Fisher amicus brief, Harvard stated that it uses admissions “policies similar to the Harvard Plan that Justice Powell approved in [Bakke] and the University of Michigan Law School plan upheld in Grutter.” But an admissions policy similar in any fashion to the plan employed by the University of Michigan Law School by definition
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uses race beyond filling the remaining few places. In such a plan, race is—to one degree or another—a factor for every applicant as it is ostensibly being used to pursue a “critical mass” of underrepresented minorities in the overall student body.
473. Moreover, the statistical evidence demonstrates that Harvard is not using race merely to fill the last few places in the entering freshman class. Rather, especially for Asian Americans, race or ethnicity is a factor in admissions decision far beyond those competing for the last few places. Only using race or ethnicity as a dominant factor in admissions decisions could account for the remarkably low admission rate for highachieving Asian-American applicants.
474. Plaintiff’s members have been and will continue to be injured because Harvard has and will continue to deny them the opportunity to compete for admission to Harvard on equal footing with other applicants on the basis of race or ethnicity due to its intentionally discriminatory admissions policies and procedures.
475. Plaintiff is entitled to a declaratory judgment, pursuant to 28 U.S.C. § 2201, and a permanent injunction because there is no plain, adequate, or speedy remedy at law to prevent Harvard from continuing to use admissions policies and procedures that discriminate on the basis of race or ethnicity in violation of Title VI of the Civil Rights Act of 1964 and because the harm Plaintiff’s members will otherwise continue to suffer is irreparable.
476. Plaintiff is entitled to attorneys’ fees and costs pursuant to 42 U.S.C. § 1988.
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COUNT V Violation of 42 U.S.C. § 2000d et seq.
(Race-Neutral Alternatives) 477. Plaintiff incorporates the allegations and averments contained in paragraphs 1-476 as if fully set forth herein. 478. Harvard, a recipient of federal funds, intentionally discriminated against certain of Plaintiff’s members on the basis of their race, color, or ethnicity in violation of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq., by employing racial preferences in undergraduate admissions when there are available race-neutral alternatives capable of achieving student body diversity. 479. Harvard has conceded that, because it uses a racial criterion in its admissions process and receives federal funds, it is subject to potential liability for violations of Title VI if it is found to have discriminated on the basis of race in its admissions process. See Harvard Grutter Amicus Brief at 2 (“Because Title VI of the Civil Rights Act of 1964 forbids institutions that receive federal funds from engaging in racial ‘discrimination,’ the ability of private colleges and universities to exercise their institutional competence could well be dramatically compromised by any new limits . . . on state university admissions criteria or procedures.”); Harvard Fisher Amicus Brief 3 (stating that “Title VI of the Civil Rights Act of 1964 forbids institutions that receive federal funds from engaging in racial ‘discrimination,” and so Harvard’s “efforts to attain diverse student bodies could be compromised” if limits were placed on the university’s admissions procedures). 480. Title VI is privately enforceable.
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481. Discrimination that violates the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution constitutes a violation of Title VI when committed by an institution that accepts federal funds.
482. Harvard’s use of racial preferences is narrowly tailored only if using them is necessary to achieve student body diversity. If Harvard can achieve student body diversity without resorting to racial preferences, it is required to do so as a matter of law. Moreover, Harvard must have a strong basis in evidence that a non-racial approach will not work about as well as a race-based approach before turning to the use of racial preferences.
483. There is no evidence that Harvard studied all of the available race-neutral alternatives and had a strong basis in evidence that none would work about as well as a race-based approach before turning to racial preferences. Indeed, Harvard claims that it has been using racial preferences—to one degree or another—continuously for nearly a century.
484. Whether Harvard considered them all or not, there are a host of raceneutral alternatives that if implemented can achieve student body diversity without resorting to racial preferences. Among these alternatives, both individually and collectively, are (a) increased use of non-racial preferences, (b) increased financial aid, scholarships, and recruitment efforts, and (c) elimination of admissions policies and practices that negatively affect minority applicants.
485. The use of race-neutral alternatives instead of racial preferences would not only achieve student body diversity, it would eliminate the heavy costs that using race as
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a factor in admissions decisions imposes on minority applicants who receive such admissions preference, the Harvard community, and society as a whole.
486. Plaintiff’s members have been and will continue to be injured because Harvard has and will continue to deny them the opportunity to compete for admission to Harvard on equal footing with other applicants on the basis of race or ethnicity due to its intentionally discriminatory admissions policies and procedures.
487. Plaintiff is entitled to a declaratory judgment, pursuant to 28 U.S.C. § 2201, and a permanent injunction because there is no plain, adequate, or speedy remedy at law to prevent Harvard from continuing to use admissions policies and procedures that discriminate on the basis of race or ethnicity in violation of Title VI of the Civil Rights Act of 1964 and because the harm Plaintiff’s members will otherwise continue to suffer is irreparable.
488. Plaintiff is entitled to attorneys’ fees and costs pursuant to 42 U.S.C. § 1988.
COUNT VI Violation of 42 U.S.C § 2000d et seq. (Any Use of Race As A Factor In Admissions) 489. Plaintiff incorporates the allegations and averments contained in paragraphs 1-488 as if fully set forth herein. 490. Harvard, a recipient of federal funds, intentionally discriminated against certain of Plaintiff’s members on the basis of their race, color, or ethnicity in violation of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq., by employing an undergraduate admissions policy that uses race as a factor in admissions.
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491. Harvard has conceded that, because it uses a racial criterion in its admissions process and receives federal funds, it is subject to potential liability for violations of Title VI if it is found to have discriminated on the basis of race in its admissions process. See Harvard Grutter Amicus Brief at 2 (“Because Title VI of the Civil Rights Act of 1964 forbids institutions that receive federal funds from engaging in racial ‘discrimination,’ the ability of private colleges and universities to exercise their institutional competence could well be dramatically compromised by any new limits . . . on state university admissions criteria or procedures.”); Harvard Fisher Amicus Brief 3 (stating that “Title VI of the Civil Rights Act of 1964 forbids institutions that receive federal funds from engaging in racial ‘discrimination,” and so Harvard’s “efforts to attain diverse student bodies could be compromised” if limits were placed on the university’s admissions procedures).
492. Title VI is privately enforceable. 493. Discrimination that violates the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution constitutes a violation of Title VI when committed by an institution that accepts federal funds. 494. The Supreme Court’s decisions holding that there is a compelling government interest in using race as a factor in admissions decisions in pursuit of “diversity” should be overruled. Those decisions were wrongly decided at the time they were issued and they remain wrong today. “Diversity” is not an interest that could ever justify the use of racial preferences under the Fourteenth Amendment and Title VI.
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495. Even if there were a compelling government interest in “diversity” in the abstract, however, the use of racial preferences in the educational setting nevertheless should be forbidden for several important reasons.
496. The Supreme Court’s jurisprudence in this area has been built on mistakes of fact and law. The Supreme Court first accepted the use of racial preferences in admissions on the assumption that they would be used consistent with the Harvard Plan, which purported to use race merely as a contextual factor in filling the final few places in the entering class. But the Harvard Plan itself was created in order to hide racial and ethnic discrimination. Thus, it is far from certain that Harvard has ever used race in the way the Supreme Court envisioned.
497. “The raison d’être for race-specific affirmative action programs has simply never been diversity for the sake of education.” Alan Dershowitz and Laura Hanft, Affirmative Action and the Harvard College Diversity-Discretion Model: Paradigm or Pretext, 1 Cardozo L. Rev. 379, 407 (1979). It is instead “a clever post facto justification for increasing the number of minority group students in the student body.” Id.
498. In any event, neither Harvard nor any other college or university uses race in this manner now. Instead, colleges and universities, including Harvard, claim to use race in order to pursue a “critical mass” of underrepresented minorities in the student body. But Harvard, and many others, are not pursuing this interest. Even when this interest is actually being pursued, moreover, it is nothing more than racial balancing in that it necessarily seeks to ensure a proportional number of students of certain races or ethnicities in the entering class. Critical mass is a formula for ensuring “a specified
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percentage of the student body is in effect guaranteed to be members of selected ethnic groups, with the remaining percentage an undifferentiated aggregation of students.” Bakke, 438 U.S. at 315 (Powell, J.).
499. Ultimately, there is overwhelming evidence that colleges and universities will take advantage of any leeway given by the Supreme Court to use the dangerous tool of racial preferences in inappropriate ways. The experience with Harvard confirms that, if given the chance, colleges and universities will use racial preferences “for the ostensible purpose of enhancing education diversity of the student body” with the true “goal of simply increasing the number of minority persons in the universities and in the professions that these universities feed.” Alan Dershowitz and Laura Hanft, Affirmative Action and the Harvard College Diversity-Discretion Model: Paradigm or Pretext, 1 Cardozo L. Rev. 379, 385 (1979).
500. There simply is no practical way to ensure that colleges and universities will use race in their admissions processes in any way that would meet the narrow tailoring requirement. The strong medicine of strict scrutiny has proven insufficient to ensure that the Fourteenth Amendment and Title VI operate in conformity of racial neutrality except in those rare circumstances that justify the use of this disfavored remedy. Time after time, district courts and the courts of appeals have been either unwilling or unable to force these colleges and universities to provide a strong evidentiary basis for their conclusion that use of racial preferences is necessary to achieve diversity. Nor have they been willing to engage in the close review of admissions programs to ensure that schools are treating each applicant as an individual.
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501. There also have been important factual developments since this question was last considered by the Supreme Court. There is now much evidence that race-neutral alternatives can achieve the benefits of diversity. This is crucially important in light of the equally compelling evidence that racial preferences impose significant costs on the university community, society in general, and the very minority students these programs are purported to benefit.
502. In the end, the costs of allowing the use of racial preferences in admissions decisions—even in a limited way—far exceed any rapidly diminishing benefits. No principle of stare decisis counsels in favor of retaining decisions allowing their use. Those decisions were not well reasoned, were predicated on mistakes of fact, have been undermined by more recent developments, and have proven to be unworkable. Any decision allowing the use of racial preferences in the educational setting should be overruled.
503. Plaintiff’s members have been and will continue to be injured because Harvard has and will continue to deny them the opportunity to compete for admission to Harvard on equal footing with other applicants on the basis of race or ethnicity due to its intentionally discriminatory admissions policies and procedures.
504. Plaintiff is entitled to a declaratory judgment, pursuant to 28 U.S.C. § 2201, and a permanent injunction because there is no plain, adequate, or speedy remedy at law to prevent Harvard from continuing to use admissions policies and procedures that discriminate on the basis of race or ethnicity in violation of Title VI of the Civil Rights Act of 1964 and because the harm Plaintiff’s members will otherwise continue to suffer is irreparable.
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505. Plaintiff is entitled to attorneys’ fees and costs pursuant to 42 U.S.C. § 1988.
WHEREFORE, Plaintiff, Students for Fair Admissions, Inc., prays for the following relief as to all counts:
(a) A declaratory judgment, pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201, from the Court that Harvard’s admissions policies and procedures violate Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq.;
(b) A declaratory judgment, pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201, from the Court that any use of race or ethnicity in the educational setting violates the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq.;
(c) A permanent injunction prohibiting Harvard from using race as a factor in future undergraduate admissions decisions;
(d) A permanent injunction requiring Harvard to conduct all admissions in a manner that does not permit those engaged in the decisional process to be aware of or learn the race or ethnicity of any applicant for admission;
(e) Attorneys’ fees and costs pursuant to 42 U.S.C. § 1988 and any other applicable legal authority; and
(f) All other relief this Court finds appropriate and just. DEMAND FOR JURY TRIAL
Pursuant to Rule 38 of the Federal Rules of Civil Procedure, Plaintiff demands a trial by jury in this action of all triable issues.
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 UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

STUDENTS FOR FAIR ADMISSIONS, *

INC.

*

*

Plaintiff,

*

*

v.

*

*

PRESIDENT AND FELLOWS OF

*

HARVARD COLLEGE (HARVARD

*

CORPORATION)

*

*

Defendant.

*

14-cv-14176-ADB

MEMORANDUM AND ORDER ON PROPOSED DEFENDANT-INTERVENORS’ MOTION TO INTERVENE
BURROUGHS, D.J. I. INTRODUCTION In this action, Plaintiff Students for Fair Admissions, Inc. (“SFFA”) alleges that
Defendant Harvard College (“Harvard”) employs racially and ethnically discriminatory policies and procedures in administering its undergraduate admissions program, in violation of Title VI of the Civil Rights Act of 1964 and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. SFFA’s Complaint sets forth two types of allegations. First, SFFA asserts that the general manner in which Harvard considers race in its undergraduate admissions program violates the Equal Protection Clause. As opposed to using race as a mere “plus” factor in admissions decisions, SFFA alleges that Harvard engages in prohibited “racial balancing.” Second, SFFA alleges that Harvard’s policies invidiously discriminate against AsianAmerican applicants in particular. Because Harvard allegedly limits the number of AsianAmerican applicants to whom it will offer admission every year, SFFA contends that those

1

applicants are forced to compete against each other for a limited number of openings. Consequently, a large number of otherwise highly qualified Asian-American applicants are allegedly denied admission to Harvard on the basis of their race or ethnicity.1 Harvard denies these allegations, insists that its admissions policies fully comply with federal law, and maintains its intention to mount a vigorous defense to SFFA’s claims.
Presently before the Court is a Motion to Intervene in Defense of Harvard’s Admission Policy, which was filed on April 29, 2015 [ECF No. 30]. The movants and proposed intervenors are nine minority high-school students who intend to apply for admission to Harvard College at some time in the future (the “Future Applicants”), and five minority college students who are currently enrolled in Harvard’s full-time undergraduate program (the “Harvard Students”) (collectively, the “Students”). In contrast to SFFA, these Students support Harvard’s consideration of race in its admissions process, and they seek to intervene “in order to ensure that Harvard retains the right to consider race in its admissions decisions to the full extent allowed by law.” [ECF No. 31, p. 3]. For the reasons set forth herein, the Court finds that the Students do not meet the criteria for intervention as of right pursuant to Fed. R. Civ. P. 24(a), and it declines to allow permissive intervention pursuant to Fed. R. Civ. P. 24(b). Consequently, the Court will deny the Students’ Motion to Intervene, but allow them to participate in this litigation as amici curiae.
II. RELEVANT FACTS SFFA filed its Complaint with this Court on November 17, 2014, and Harvard filed its
Answer on February 18, 2015. On May 4, 2015, the Court issued a Scheduling Order governing
1 SFFA purports to be a coalition of applicants and prospective applicants to institutions of higher education, along with their parents and other individuals. It further alleges to have at least one Asian-American student member who applied for and was denied admission to Harvard’s 2014 entering class [Complaint ¶¶ 12-24, ECF No. 1].
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the timing of discovery, dispositive motions, and other matters. At this point, the case has not advanced beyond the early stages of discovery. On April 29, 2015, the Students filed their Motion to Intervene with the Court [ECF No. 30], along with a supporting Memorandum of Law [ECF No. 31]. In addition, each of the Students filed a declaration explaining their purported interest in this case [ECF No. 31-1].
The Future Applicants Movant M.B. is a high school junior, who identifies as African American and Caucasian. Movant K.C. is a high school sophomore and identifies as a Native American. Movant Y.D. is a high school junior and a member of the Oneida Tribe. Y.D. identifies as Native American. Movant G.E. is a high school freshman and an enrolled member of the Gila River Indian Community. G.E. identifies as Native American. Movant A.G. is a high school junior of Hispanic and Filipino descent. Movant I.G. is a high school freshman and is also of Hispanic and Filipino descent. Movant R.H. is an African American high school junior. Movant J.L. is a high school sophomore and states that his or her tribal affiliation is Jemez Pueblo and Zuni Tribe. J.L. identifies as Native American. Movant R.S. is a high school freshman and identifies as Native American, of the Confederated Tribes of the Umatilla Indian Reservation. These students’ declarations detail their impressive academic accomplishments, high grade-point-averages, involvement in extracurricular programs, and participation in activities related to their cultural and ethnic heritage. In addition, each student expresses a desire to experience a racially diverse environment in college, and a belief that his or her own unique cultural and ethnic background will contribute to the educational experiences of his or her peers. Further, each of these students states that he or she intends to apply for admission to Harvard’s
3

undergraduate program, and to apply for financial aid. None, however, claims to have submitted an application to Harvard at this point in time.
The Harvard Students Movant Sarah Cole is a full-time undergraduate student at Harvard, who identifies as Black or African American. Movant Fadhal Moore is a full-time undergraduate student at Harvard and identifies as African American. Movant Arjini Kumari Nawal is full-time undergraduate student at Harvard, who identifies as Asian American, of Sri Lankan descent. Movant Itzel Libertad Vasquez-Rodriguez is a full-time undergraduate student at Harvard College. She identifies as Native American and Latina, of Mexican Ancestry. Movant Keyanna Wigglesworth is a full-time undergraduate student at Harvard, who describes her race and ethnicity as Black American. Each of these students professes to experience academic and/or personal benefits from Harvard’s racially diverse student body, and each believes that his or her education would be harmed if Harvard stopped considering race in its admissions policy. Each student also states that he or she would like to see an increase in the number and diversity of underrepresented minority groups admitted to Harvard. III. SUMMARY OF THE STUDENTS’ POSITION The Students argue that Harvard must remain free to address the underrepresentation of certain racial and ethnic minority groups in its student body, so as to secure for these students access to opportunities associated with attending Harvard. Further, the Students believe they are in the best position to advance these interests, because their educational goals, career aspirations, and life experiences would be adversely affected if Harvard were prohibited from considering race in its admissions process. They seek to intervene because they believe that Harvard may not adequately represent their interests in this litigation, for a number of reasons. First, the Students
4

wish to emphasize certain arguments that they fear Harvard may not present to the Court. For example, the Students believe that Harvard should remain free to consider race and ethnicity in order to offset the disparate impact of certain other aspects of Harvard’s admissions policy – including Harvard’s consideration of so-called “legacy” applicants whose parents may have attended Harvard; the school’s Early Action admissions program; and its reliance on SAT scores as a factor in admission. Each of these policies or criteria, the Students argue, has a negative impact on the admission of minority applicants. Accordingly, the Students want to argue that Harvard’s continued use of race and ethnicity in its admissions process is critical to offsetting the disparate impact of such programs. And because Harvard is unlikely to concede that its own admissions policies have adverse effects on minority applicants, the Students argue that Harvard does not adequately represent their interests in this regard [ECF No. 31 pp. 4-5]. In addition, the Students claim that they will argue – and that Harvard is unlikely to argue – that achieving a “critical mass” of minority students is necessary to reduce the racial isolation of minority students on campus [ECF No. 42 p. 8].
Second, the Students suggest that Harvard’s defense of its admissions procedures “may be affected by concern over its public perception or by the need to serve myriad constituencies such as alumni, faculty, and the academic community . . . .” Essentially, the Students argue that Harvard would not be as zealous an advocate as they, and “[t]o the extent Harvard would seek to settle or would otherwise avoid politically sensitive topics,” their intervention would ensure that those arguments are presented as fully and forcefully as possible [ECF No. 31 p. 5].
Third, the Students claim that Harvard lacks the ability to defend its race-conscious admissions policy adequately because “Harvard, as an institution, does not have the personal experiences that Movants do with respect to race and ethnicity.” [ECF No. 31 p. 14].
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The Students argue that these considerations entitle them to intervene in this matter as of right, pursuant to Fed. R. Civ. P. 24(a). Alternatively, they argue that the Court should allow permissive intervention pursuant to Fed. R. Civ. P. 24(b).
IV. SUMMARY OF SFFA AND HARVARD’S POSITIONS Both SFFA and Harvard oppose the Students’ full-fledged intervention in this action,
and both argue that the Students are not entitled to intervene as of right under Fed. R. Civ. P. 24(a). Harvard submits that intervention is not warranted because Harvard will adequately represent the Students’ interests [ECF No. 38]. SFFA agrees, and it further argues that the Students lack a “demonstrated interest” in this litigation, and that the Students’ motion to intervene was not timely filed [ECF No. 37]. In addition, both parties are concerned that fullscale intervention could interfere with the expeditious and orderly resolution of this case, by adding additional parties, broadening the scope of discovery, and engendering delays. Harvard has also cited concerns for the privacy of its students and applicants, which would be exacerbated by the intervention of additional parties.
However, neither SFFA nor Harvard opposes a more limited form of participation by the Students. SFFA suggests that the Students be permitted to participate as amici curiae [ECF No. 37 pp. 9-10]. Harvard submits that if the Court permits intervention, it should limit the Students’ participation to the submission of briefs, the presentation of their own declarations, and participation in any oral argument that the Court may choose to hear. Alternatively, Harvard is not opposed to the Students’ participation as amici curiae, as suggested by SFFA [ECF No. 38 pp. 8-10].
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V. ANALYSIS A. Legal Standard
The Federal Rules of Civil Procedure contemplate two types of motions to intervene: intervention as of right, as set forth in Fed. R. Civ. P. 24(a), and permissive intervention, pursuant to Fed. R. Civ. P. 24(b). R&G Mortg. Corp. v. Fed. Home Loan Mortg. Corp., 584 F.3d 1, 8 (1st Cir. 2009). “The differences are significant.” Id. Faced with a motion to intervene as of right, the court must apply a four-factor test, and its discretion is “somewhat more constrained than in the case of a motion for permissive intervention.” Id. In contrast, when deciding whether permissive intervention is warranted under Fed. R. Civ. P. 24(b), the district court “can consider almost any factor rationally relevant,” and “enjoys very broad discretion” in allowing or denying the motion. Daggett v. Comm’n on Governmental Ethics & Election Practices, 172 F.3d 104, 113 (1st Cir. 1999).
1. Fed. R. Civ. P. 24(a) – Intervention as of Right Federal Rule of Civil Procedure 24(a) provides an “authoritative recipe” that lists the “essential ingredients” for intervention as of right. Ungar v. Arafat, 634 F.3d 46, 50 (1st Cir. 2011). In the absence of a federal statute providing for a right to intervene, and on a timely motion, the court must permit anyone to intervene who:
claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest. Fed. R. Civ. P. 24(a). “It follows that a would-be intervenor must demonstrate that: (i) its motion is timely; (ii) it has an interest relating to the property or transaction that forms the foundation of the ongoing action; (iii) the disposition of the action threatens to impair or impede its ability to
7

protect this interest; and (iv) no existing party adequately represents its interest.” Ungar, 634 F.3d at 50.
Although “[e]ach of these requirements must be fulfilled, [and] failure to satisfy any one of them defeats intervention as of right,” id. at 51, the “inherent imprecision of Rule 24(a)(2)'s individual elements dictates that they ‘be read not discretely, but together,’ and always in keeping with a commonsense view of the overall litigation.” Pub. Serv. Co. of N.H. v. Patch, 136 F.3d 197, 204 (1st Cir. 1998) (citation omitted). Further, the First Circuit has noted that deciding whether each of these requirements has been met “requires a series of judgment calls—a balancing of factors that arise in highly idiosyncratic factual settings.” Ungar, 634 F.3d at 51.
2. Fed. R. Civ. P. 24(b) – Permissive Intervention In contrast to the four-factor test for intervention as of right, permissive intervention has only two criteria. Upon a timely motion, the court has discretion to allow permissive intervention “when an applicant’s claim or defense and the main action have a question of law or fact in common.” Daggett, 172 F.3d at 112-13; see Fed. R. Civ. P. 24(b)(1)(B).2 Permissive intervention, however, is “wholly discretionary,” and when exercising its discretion, the court may consider “almost any factor rationally relevant . . . .” Daggett, 172 F.3d at 113. In addition, Rule 24(b)(3) expressly provides that the court must consider “whether intervention will prejudice the existing parties or delay the action.” Fed. R. Civ. P. 24(b)(3); see Glass Dimensions, Inc. ex rel. Glass Dimensions, Inc. Profit Sharing Plan & Trust v. State St. Bank & Trust Co., 290 F.R.D. 11, 14 (D. Mass. 2013).
2 In addition, the claim or defense asserted by the proposed intervenor must be supported by independent jurisdictional grounds. Int'l Paper Co. v. Inhabitants of Town of Jay, Me., 887 F.2d 338, 346 (1st Cir. 1989).
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B. The Students’ Motion to Intervene Is Timely As a threshold matter, the Court finds that the Students’ Motion to Intervene is timely for purposes of Fed. R. Civ. P. 24(a) and (b). Rule 24’s timeliness inquiry “is inherently factsensitive and depends on the totality of the circumstances.” R & G Mortgage Corp., 584 F.3d at 7. Generally, the court should consider
(i) the length of time that the putative intervenor knew or reasonably should have known that his interests were at risk before he moved to intervene; (ii) the prejudice to existing parties should intervention be allowed; (iii) the prejudice to the putative intervenor should intervention be denied; and (iv) any special circumstances militating for or against intervention. Id. (citation omitted). SFFA argues that the Students’ motion is untimely because they waited more than five months after the Complaint was filed to move for intervention. SFFA further submits that the existing parties would be prejudiced by the Students’ delay, as the Court has already entered a scheduling order setting discovery deadlines, which would need to be modified to accommodate the proposed-intervenors. These arguments are not sufficiently persuasive. In evaluating the timeliness of a motion to intervene, “the status of the litigation at the time of the request for intervention is ‘highly relevant.’” Id. (quoting Banco Popular de Puerto Rico v. Greenblatt, 964 F.2d 1227, 1231 (1st Cir. 1992)). Although SFFA filed its Complaint in this case on November 17, 2014, Harvard did not answer the Complaint until February 18, 2015. The Students filed their Motion to Intervene on April 29, 2015, before an initial scheduling conference had taken place, and before the Court had issued the Scheduling Order. The Court does not find this to be an unreasonable delay. Furthermore, if the Students were permitted to intervene, any corresponding adjustments to the Scheduling Order would not prejudice the parties, as this case is in the very early stages of discovery. Compare Glass Dimensions, Inc., 290 F.R.D. at 15 (denying motion to
9

intervene as untimely, where intervention would require, among other things, re-opening fact and expert discovery and re-briefing summary judgment), with Geiger v. Foley Hoag LLP Ret. Plan, 521 F.3d 60, 64-65 (1st Cir. 2008) (finding that nine-month delay was not untimely, in part because the case had not progressed beyond its initial stages and no discovery had taken place). Under these circumstances, the Court finds that the Students’ Motion is timely.
C. The Students Lack a Sufficiently Protectable Interest to Warrant Intervention as of Right
To satisfy intervention as of right, however, Fed. R. Civ. P. 24(a) also requires a proposed intervenor to demonstrate “an interest relating to the property or transaction that is the subject of the action,” and that the disposition of the action “may, as a practical matter impair or impede the movant’s ability to protect its interest . . . .” Fed. R. Civ. P. 24(a)(2). Although the interest requirement has eluded precise definition, the First Circuit has established some guidelines. At a bare minimum, the proposed intervenor must show that it has a “significantly protectable interest,” Patch, 136 F.3d at 205 (quoting Donaldson v. United States, 400 U.S. 517, 531 (1971)), “that is ‘direct, not contingent.’” Id. (quoting Travelers Indem. Co. v. Dingwell, 884 F.2d 629, 638 (1st Cir. 1989)). Further, the intervenor’s claim must “bear a sufficiently close relationship to the dispute between the original litigants.” Travelers Indem. Co., 884 F.2d at 638 (internal quotations and citation omitted).
In this case, because the proposed intervenors are comprised of two distinct groups (nine Future Applicants to Harvard, and five current Harvard Students), and because each group’s purported interest in this matter is slightly different, the question of “interest” must be analyzed separately for each group.
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1. Future Applicants The Court agrees with SFFA that the Future Applicants do not have a direct, protectable interest in this litigation that warrants intervention as of right under Rule 24(a). As a practical matter, although each of the Future Applicants has stated his or her intent to apply to Harvard at some point in the future, none of them has even a pending application. Therefore, there is little that distinguishes the proposed intervenors currently before the Court from any other minority student in America, or indeed, the world, who may potentially be affected by Harvard’s consideration or non-consideration of race and ethnicity in its admissions decisions, if he or she should decide to apply. This is not a case where the proposed intervenors “belong to a small group, quite distinct from the ordinary run of citizens,” who would be affected directly by the outcome of the case. Daggett, 172 F.3d at 110. These students’ purported interests in Harvard’s admissions policies are simply too removed, too speculative, and too contingent, to justify intervention as of right under Rule 24(a). The First Circuit’s holding in Public Service Co. of New Hampshire v. Patch is instructive in this regard. 136 F.3d 197 (1st Cir. 1998). In Patch, a citizens’ group of several hundred residential and commercial electricity consumers sought to intervene in an action brought by utility companies against the state of New Hampshire’s public utilities commission. Id. at 203-04. Although the intervenors argued that they had an interest in the outcome of the litigation, because it would affect their ability to obtain lower utility rates, the First Circuit found that this theory “operates at too high a level of generality,” as “every electricity consumer in New Hampshire . . . yearns for lower electric rates.” Id. at 205. Further, the court found that the interest articulated by the consumers had an “overly contingent quality,” where the intervenors “root their professed economic interest in an as yet unrealized expectancy of lower electric
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rates.” Id. at 205-06. The court noted that this was not a case “in which ongoing litigation directly threatens an economic right or benefit presently enjoyed by any would-be intervenor.” Id. at 205. Here, like the New Hampshire consumer group in Patch, the purported interests of the Future Applicants in Harvard’s continued consideration of race and ethnicity in its admissions process are too general and too contingent to warrant intervention as of right.
The Court also finds that the Future Applicants’ purported interest is not sufficiently “protectable” to warrant intervention as of right. The Students concede that they have “no constitutional right to have their race considered by Harvard,” assuming that they eventually apply [ECF No. 42, p. 4]. They argue, however, that they are nonetheless “entitled to protect their interests in Harvard’s right to consider race in admissions regardless of whether Harvard is legally compelled to do so.” [Id.]. This argument is not persuasive. As the Students seem to acknowledge, this interest is indirect, as it is derivative of Harvard’s right to consider race in its admissions process.3
Nor do the Students have a protectable interest that is on-par with that of the Plaintiff in this case. SFFA’s claims in this action derive from their members’ constitutional right to be free from unlawful discrimination based on race. It does not follow, however, that all prospective applicants have an equally protectable interest in the school’s continued consideration of race in its admissions policies, or that they may maintain a legal claim in support of those practices. In other words, the Plaintiff’s interest in preventing Harvard from considering race in its admissions decisions is qualitatively different from the proposed-intervenors’ interest in supporting Harvard’s admissions policies. The former gives rise to a constitutional claim, while the latter does not.
3 And, to the extent that the Students share in Harvard’s interest, that interest is adequately represented by Harvard, as will be discussed, infra.
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Similarly, the Future Applicants also lack a protectable interest in obtaining the many
benefits of a Harvard education, or Harvard’s financial aid program. To borrow from the
language of Article III standing, “the ‘injury in fact’ in an equal protection case of this variety is
the denial of equal treatment resulting from the imposition of the barrier, not the ultimate
inability to obtain the benefit.” Ne. Florida Chapter of Associated Gen. Contractors of Am. v. City of Jacksonville, Fla., 508 U.S. 656, 666 (1993).4 Although the Court understands why the
Future Applicants are interested in the outcome of this litigation, their interest is not a
significantly protectable one that warrants intervention. See Travelers Indem. Co., 884 F.2d at
638 (citing Flynn v. Hubbard, 782 F.2d 1084, 1092 (1st Cir. 1986) (Coffin, J., concurring)
(noting that interest must be “direct, substantial, [and] legally protectable”)).
In addition, though the Students argue that courts “routinely” grant intervention as of
right to parties “seeking to protect their interests in race-conscious programs from which they
benefit,” [ECF No. 31 p. 10], the cases they cite are largely distinguishable. See, e.g., Johnson v.
San Francisco Unified Sch. Dist., 500 F.2d 349, 352 (9th Cir. 1974) (per curiam) (parents of
children of Chinese ancestry had a right to intervene in action challenging compulsory
desegregation program in their public school district); Black Fire Fighters Ass’n of Dallas v. City
of Dallas, Tex., 19 F.3d 992, 994 (5th Cir. 1994) (group of city firefighters had right to intervene
4 This Court recognizes that neither the Supreme Court nor the First Circuit has expressly decided whether the “interest” referred to in Rule 24(a) requires a proposed intervenor to possess Article III standing. See Daggett, 172 F.3d at 109 (citing Diamond v. Charles, 476 U.S. 54, 6869 & n.21 (1986) (declining to resolve the issue)); see also Igartua v. United States, 636 F.3d 18, 19 (1st Cir. 2011). The First Circuit has noted, however, that although the two concepts may not be identical, “the ‘interest’ required under Rule 24(a) has some connection to the interest that may give the party a sufficient stake in the outcome to support standing under Article III.” Daggett, 172 F.3d at 110. The First Circuit has also suggested that while it may not be impossible for an intervenor to demonstrate a Rule 24(a) interest without possessing Article III standing, such cases would be “unusual” and involve “peculiar circumstances.” Cotter v. Massachusetts Ass’n of Minority Law Enforcement Officers, 219 F.3d 31, 34 (1st Cir. 2000).
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in action, where consent decree would affect their promotional opportunities). In Johnson, the intervenors were not simply “potential” applicants to a private university and possible beneficiaries of its resources – they were established residents of a public school district, whose children would be compelled to follow the district’s reassignment policies. 500 F.2d at 352. In City of Dallas, the intervenors were firefighters, presently employed by the city, whose opportunities for promotional advancement would be immediately and directly impacted by the outcome of a racial discrimination suit. 19 F.3d at 994-95. Thus, these intervenors’ interests were not speculative, indirect, or contingent.
The Students also rely heavily on Grutter v. Bollinger, in which the Sixth Circuit held, in circumstances very similar to these, that prospective minority applicants had a substantial interest in an action challenging the University of Michigan’s admissions policy, and a corresponding right to intervene in the litigation. 188 F.3d 394. The Court has carefully reviewed the Grutter opinion, and notes that the Sixth Circuit applied, in its own words, “a ‘rather expansive notion of the interest sufficient to invoke intervention of right’” under Rule 24(a). 188 F.3d at 398. This is in contrast to a more restrictive test employed by some other circuits, which rejects interests that are “speculative, indirect, or contingent.” Conservation Law Found. of N.e. v. Mosbacher, 966 F.2d 39, 42 (1st Cir. 1992) (discussing different Circuits’ approaches to the “interest” required for intervention). The First Circuit has declined to adopt either of these approaches, and opts instead for a fact-based, case-by-case determination. See id. at 41-42. Consistent with the pragmatic approach counseled by the First Circuit, and cognizant of its instruction to analyze the elements of Rule 24(a) intervention “in keeping with a commonsense view of the overall litigation,” Patch, 136 F.3d at 204, the Court finds that the Future Applicants
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do not, on these facts, have a sufficient interest in this litigation to warrant intervention as of right under Rule 24(a).
2. Harvard Students The current Harvard Students are in a different posture. In contrast to the Future Applicants, these students were admitted to Harvard, chose to matriculate, and are currently enrolled in the full-time undergraduate program at the College. Therefore, they have no remaining interest in Harvard’s continued consideration of race and ethnicity with respect to their own applications. Rather, their purported interest is in continuing to enjoy the academic and personal benefits that they believe arise out of Harvard’s racially diverse student body, and their desire to see an increase in the number and diversity of underrepresented minority groups admitted to Harvard [ECF. No. 31-1, Exhibits 1.10-1.14]. Although this interest is less speculative and less contingent than the interest articulated by the Future Applicants, it is still not a significantly protectable interest. For the same reasons that the Future Applicants lack a protectable interest in Harvard’s continued consideration of race in its admissions policies, so too do the current Harvard Students.5 Further, to the extent that the current Harvard Students have any interest in the continued consideration of race in Harvard’s admissions process, they have not established that Harvard may not adequately represent those interests, as more fully set forth below.
D. The Students Have Not Established Inadequate Representation Both Harvard and SFFA argue that the Students are not entitled to intervene as of right, because the Students have not demonstrated that Harvard may not adequately represent their
5 Although the Students rely on Conservation Law Foundation of New England, Inc. v. Mosbacher, 966 F.2d 39 (1st Cir. 1992), for the proposition that intervention as of right does not require a “legally cognizable” interest [ECF No. 42, p.3], the Mosbacher case does not stand for this principle.
15

interests. The Court agrees. The Students claim that their ultimate goal in this litigation is to “ensure that Harvard retains the right to consider race in its admissions decisions to the full extent allowed by law.” [ECF no. 31 p. 3]. Harvard shares this same objective and intends to mount a “vigorous defense” of its admissions policies [ECF No. 38 p. 1]. Where, as here, “the goals of the applicants are the same as those of the plaintiff or defendant,” “adequate representation is presumed.” Daggett, 172 F.3d at 111. Although the Students advance several arguments in support of Harvard’s inadequacy, none of these arguments is persuasive, and all are speculative. Cf. Massachusetts Food Ass’n v. Massachusetts Alcoholic Beverages Control Comm’n, 197 F.3d 560, 567 (1st Cir. 1999) (noting that burden of overcoming a presumption of adequacy is on the would-be intervenor). In short, the Students have not sufficiently rebutted the presumption of adequacy.
First, the Students suggest that their interests would not be adequately represented should Harvard decide to settle this suit, or decline to appeal an unfavorable outcome. However, merely speculating about this possibility does not establish inadequacy. See Daggett, 172 F.3d at 112 (noting that there was no indication Attorney General would “compromise or would decline to appeal if victory were only partial”). Harvard has argued that it would be “inconceivable” for Harvard to accede to SFFA’s demands [ECF No. 38, p. 4], and the Court agrees that this possibility currently appears to be “extremely remote.” Patch, 136 F.3d at 208. Moreover, in the unlikely event that Harvard settled this action or failed to appeal, the Students could renew their motion to intervene at that point in time. See Massachusetts Food Ass’n, 197 F.3d at 568; Daggett, 172 F.3d at 112.
In addition, the Students allege that even if Harvard is not inclined to settle, it may want to “avoid politically sensitive topics” surrounding racial and ethnic diversity when defending its
16

admissions policies. In other words, the zealousness and thoroughness of Harvard’s defense may be compromised by “concern over its public perception or by the need to serve myriad constituencies such as alumni, faculty, and the academic community, who may all have differing opinions about the propriety of the goal of achieving racial and ethnic diversity.” [ECF No. 31 p. 5]. The Students, however, do not cite any evidence to substantiate this fear. Further, courts have held that “[i]t is not sufficient that the party seeking intervention merely disagrees with the litigation strategy or objectives of the party representing its interests. Little Rock Sch. Dist. v. N. Little Rock Sch. Dist., 378 F.3d 774, 780 (8th Cir. 2004). Thus, subtle differences in approach or rationale in pursuit of a common goal do not demonstrate inadequacy.
The Students further argue that Harvard lacks the ability to defend its race-conscious admissions policy adequately because “Harvard, as an institution, does not have the personal experiences that Movants do with respect to race and ethnicity.” [ECF No. 31 p. 14]. This argument is also unavailing. Harvard is perfectly capable of gathering and presenting evidence of its students’ interests and experiences, and it is not necessary for these Students to intervene as full-fledged litigants for this to occur. See Daggett, 172 F.3d at 113 (noting that there was “no obvious reason why” the state defendant could not offer the testimony of the proposed intervenors, treating them as friendly witnesses). However, to the extent that the Students’ individual experiences and viewpoints may be enlightening, the Court is more than willing to permit the Students to participate as amici curiae, and to submit these views through declarations, substantive briefs and, in appropriate cases, oral argument.
Next, the Students identify specific arguments that they claim Harvard is unlikely to make in this litigation, and that the Students wish to present to the Court. For example, although the Students support Harvard’s continued consideration of race and ethnicity, they oppose other
17

aspects of Harvard’s admissions policies and programs, including (1) Harvard’s reliance on SAT scores; (2) the school’s “early admission” program; and (3) the so-called “legacy” factor, pursuant to which Harvard sometimes considers whether an applicant’s parent(s) are alumni of the school. The Students wish to argue that all of these policies have a negative impact on minority applicants’ chances for admission, and that Harvard should be able to consider race and ethnicity in its admissions decisions in order to offset or “remedy” the disparate impact of these criteria [ECF No. 31 pp. 2, 5, 13-14]. As a preliminary matter, the Students do not clearly explain why this “remedy” theory would be a constitutionally sufficient reason to uphold Harvard’s admissions practices.6 Furthermore, the Students’ interest in exposing the allegedly disparate impact of other admissions criteria is already represented in this case, if not by Harvard, then by SFFA. For example, SFFA alleges in its Complaint that Harvard’s alleged use of “legacy” preferences, as well as other policies, has a disparate impact on minorities, and it suggests that Harvard can achieve diversity in its student body without using race as a factor in admissions decisions, by simply eliminating policies such as legacy preferences. [Complaint ¶¶ 341-355, ECF No. 1]. Thus, such issues are likely to surface over the course of discovery, even absent the Students’ intervention.
6 In the context of school admissions cases, the Supreme Court has recognized that achieving the educational benefits of a more diverse student body may be a compelling interest justifying the use of racial classifications. See Fisher v. Univ. of Texas at Austin, 133 S. Ct. 2411, 2417, 186 L. Ed. 2d 474 (2013) (citing Grutter v. Bollinger, 539 U.S. 306, 325 (2003)). The Court, however, has also suggested that a university may not employ racial classifications to remediate past instances of discrimination or injustice, because a “university’s ‘broad mission [of] education’ is incompatible with making the ‘judicial, legislative, or administrative findings of constitutional or statutory violations’ necessary to justify remedial racial classification.” Id. at 2417 (alteration in original) (quoting Regents of Univ. of California v. Bakke, 438 U.S. 265, 308-09 (1978) (opinion of Powell, J.)).
18

The Court is also unpersuaded by the Students’ argument that “[t]he record reflects that Harvard is unlikely to argue that achieving a critical mass of underrepresented minority students is necessary to achieve diversity,” and to “reduce racial isolation and the spokesperson status of minority students.” [ECF No. 42 p. 8]. In support of this statement, the Students cite the absence of such arguments in Harvard’s amicus briefs filed in other school admissions cases, such as Regents of the University of California v. Bakke, 438 U.S. 265 (1978); Grutter v. Bollinger, 539 U.S. 306 (2003); and Fisher v. University of Texas at Austin, 133 S.Ct. 2411 (2013). Critically, however, Harvard’s admissions policies were not being challenged in those cases. The fact that Harvard did not emphasize a particular argument in an amicus brief does not plausibly suggest that it will fail to do so in this case, which mounts a full-scale challenge to its own admissions policies. Further, the Court notes that any unique arguments the Students wish to advance can be submitted via amicus briefs and their personal declarations. See Massachusetts Food Ass’n, 197 F.3d at 568 (noting that amici curiae can advise the court of missing arguments).
Overall, the Students have identified only relatively minor, and very speculative divergences in interests, which do not establish that Harvard’s representation may be inadequate. Although the burden of showing inadequacy has been described as a “minimal” one, B. Fernandez & Hnos., Inc. v. Kellogg USA, Inc., 440 F.3d 541, 545 (1st Cir. 2006), this does not mean that raising a mere possibility of inadequacy triggers an automatic right to intervene. Because the elements of Rule 24(a) intervention must be considered holistically, Patch, 136 F.3d at 204, the required showing of inadequacy “tend[s] to vary depending on the strength of the interest [at stake].” Daggett, 172 F.3d at 113. “Courts might require very little ‘inadequacy’ if the would-be intervenor’s home were at stake and a great deal if the interest were thin and widely shared.” Id. at 113-14. Here, the Court has found that the Students lack a significantly
19

protectable interest in this litigation. But even assuming that they possessed some limited interest, it would fall on the “thin and widely shared” end of the spectrum. Id. Given the relative weakness of the Students’ purported interests, the potential inadequacies they cite are not sufficiently compelling to warrant intervention as of right. The Students’ Motion to Intervene as of right pursuant to Fed. R. Civ. P. 24(a) is therefore DENIED.
E. The Court Declines to Allow Permissive Intervention In the alternative, the Students have moved for permissive intervention under Fed. R. Civ. P. 24(b), which provides that a court may allow intervention upon a timely motion, “when an applicant’s claim or defense and the main action have a question of law or fact in common.” Daggett, 172 F.3d at 112-13; see Fed. R. Civ. P. 24(b)(1)(B). Permissive intervention, however, is “wholly discretionary,” and the court should consider “whether intervention will prejudice the existing parties or delay the action.” Glass Dimensions, Inc., 290 F.R.D. at 14; see Fed. R. Civ. P. 24(b)(3). The Court declines to allow permissive intervention here, for a number of reasons. First, as discussed earlier in this Memorandum, Harvard should adequately represent the interests of both the Future Applicants and the Harvard Students in this litigation. Second, both SFFA and Harvard have objected to the Students’ full-fledged intervention, citing concerns for expediency, and, in Harvard’s case, privacy. Harvard is also concerned that the Future Applicants could become privy to the inner workings of Harvard’s admissions process, which could pose an unfair advantage. The Court shares the parties’ concerns. In their moving papers, the Students suggest that if permitted to intervene, they will be “present and involved” in fact discovery, and that they may gather evidence and present expert testimony beyond that sought by the parties [ECF No. 42 pp. 9-10]. In all likelihood, allowing fourteen Students to intervene as parties would further
20

complicate proceedings, lengthen the discovery process, add expense, and significantly delay the ultimate resolution of this case. See Massachusetts Sch. of Law at Andover, Inc. v. United States, 118 F.3d 776, 782 (D.C. Cir. 1997) (noting that the “delay or prejudice” standard referenced in Rule 24(b) captures “all the possible drawbacks of piling on parties; the concomitant issue proliferation and confusion will result in delay as parties and court expend resources trying to overcome the centrifugal forces springing from intervention, and prejudice will take the form not only of the extra cost but also of an increased risk of error”).
In sum, the Court finds that the Students’ intervention would add undue delay, cost, and complexity to these proceedings, and that such intervention is unwarranted where Harvard adequately represents the Students’ interests. See State v. Dir., U.S. Fish & Wildlife Serv., 262 F.3d 13, 21 (1st Cir. 2001) (affirming denial of permissive intervention, where district court felt that intervention “would delay and complicate matters”); Daggett, 172 F.3d at 113 (deferring to district court’s judgment on whether permissive intervention would cause disruption and delay). Consequently, the Students’ Motion to Intervene pursuant to Fed. R. Civ. P. 24(b) is also DENIED.
F. Amicus Curiae Status Although the Students may not intervene in this case as parties, the Court will permit the Students to participate as amici curiae. The role of an amicus curiae, meaning “friend of the court,” is to “assist the court ‘in cases of general public interest by making suggestions to the court, by providing supplementary assistance to existing counsel, and by insuring a complete and plenary presentation of difficult issues so that the court may reach a proper decision.’” Sierra Club v. Wagner, 581 F.Supp.2d 246, 250 n.1 (D.N.H. 2008) (quoting Newark Branch, N.A.A.C.P. v. Town of Harrison, N.J., 940 F.2d 792, 808 (3d Cir. 1991)). The Court finds that
21

amicus status will be sufficient for the Students to present their views and arguments in this case. As amici curiae, the Students will be permitted to submit their own declarations, file substantive briefs on dispositive motions, and participate in oral arguments on those motions.
The Students argue that amicus status is not sufficient, because an amicus cannot “file pleadings; create, extend, or enlarge an issue before the court; challenge the validity of testimony; . . . challenge an injunction while it remains in effect;” gather evidence; or provide expert testimony [ECF No. 42 p. 9]. Although this is not entirely accurate, the Court takes their point. Nonetheless, the Students have not demonstrated any significantly protectable interest, or sufficiently inadequate representation, to justify their full-scale participation in discovery. Further, the Court has declined to permit discretionary intervention precisely because the addition of fourteen additional parties propounding discovery, presenting expert testimony, cross-examining witnesses, and participating in all other aspects of the adversary process would inevitably slow and unduly complicate the progress of this litigation.
The Students also note that as amici, they would not have the right to appeal an adverse decision. That may be true, but the Students would arguably lack standing to appeal even if the Court were to permit intervention. “[A]n intervenor’s right to continue a suit in the absence of the party on whose side intervention was permitted is contingent upon a showing by the intervenor that he fulfills the requirements of Art[icle] III.” Diamond v. Charles, 476 U.S. 54, 68 (1986); see Rio Grande Silvery Minnow v. Keys, 46 F. App’x 929, 932-33 (10th Cir. 2002) (unpublished) (holding that intervenors-appellants lacked Article III standing to appeal, where they lacked injury in fact). The issue of Article III standing, however, is not presently before the Court. In the unlikely event that Harvard declined to appeal from an unfavorable decision, the
22

would-be intervenors could renew their motion to intervene at that time. See Massachusetts Food Ass’n, 197 F.3d at 568; Daggett, 172 F.3d at 112.
VI. CONCLUSION For the foregoing reasons, the Proposed Intervenors’ Motion to Intervene [ECF No. 30] is
DENIED; however, the Proposed Intervenors are granted leave to participate in this action as amici curiae as follows: (1) amici curiae may, through their counsel, submit a brief or memorandum of law not to exceed 30 pages, exclusive of exhibits, on any dispositive motion in this case; (2) amici curiae may, through their counsel, participate in oral argument on any dispositive motion in this case; (3) amici curiae may submit personal declarations or affidavits in support of their memorandum of law, which may be accorded evidentiary weight if otherwise proper; (4) as appropriate, the Defendant may take full advantage of amici curiae’s offers of resources, evidence, or assistance, where doing so would help Defendant in preparation for and during trial. However, amici curiae will not be granted leave to propound discovery, participate in depositions, obtain copies of documents requested in discovery, or otherwise participate in discovery in this case. Nor will amici curiae be permitted to participate in expert discovery or present expert testimony. Should this case proceed to trial, amici curiae may file a motion to participate in the proceedings, and the Court will consider the appropriate scope of participation at that time.
SO ORDERED. Dated: June 15, 2015
/s/ Allison D. Burroughs ALLISON D. BURROUGHS DISTRICT JUDGE
23

 
 Case 1:14-cv-14176-ADB Document 110 Filed 10/09/15 Page 1 of 2

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

STUDENTS FOR FAIR ADMISSIONS, *

INC.

*

*

Plaintiff,

*

*

v.

*

*

PRESIDENT AND FELLOWS OF

*

HARVARD COLLEGE (HARVARD

*

CORPORATION)

*

*

Defendant.

*

14-cv-14176-ADB

ORDER BURROUGHS, D.J.
The Proposed Defendant-Intervenors’ Motion to Stay [ECF No. 90] is ALLOWED IN PART and DENIED IN PART. A partial stay will remain in effect until the Court of Appeals for the First Circuit resolves whether the Proposed Defendant-Intervenors have a right to intervene as parties in this litigation. Although the Court does not believe that the Proposed DefendantIntervenors’ appeal has divested this Court of jurisdiction, the Court finds that granting a partial stay would serve the interests of judicial economy and guard against potential prejudice. The terms of the partial stay are as follows:
1. Notwithstanding the partial stay, Harvard shall produce, consistent with its representations at the July 21, 2015 status conference before the Court, documents concerning Harvard’s undergraduate admissions policies and procedures, including Harvard’s training manuals and any reader instructions with respect to its undergraduate admissions policies and procedures. Harvard shall also produce general information regarding its alumni interviewer program. In addition, Harvard
1

Case 1:14-cv-14176-ADB Document 110 Filed 10/09/15 Page 2 of 2

shall produce electronic admissions data (database information) from its admissions database for the two most recent complete admissions cycles, including identification of the database fields, and including database information for transfer applicants.1 2. Discovery is otherwise stayed until the First Circuit resolves the DefendantIntervenors’ pending appeal. No depositions shall go forward, and Harvard shall not be required to produce any actual application files at this time.2

Harvard’s Motion to Stay [ECF No. 58] is also ALLOWED IN PART and DENIED IN

PART. After the First Circuit resolves the Proposed Defendant-Intervenors’ pending appeal, this

Court will enter a further partial stay of proceedings that will remain in effect until the United

States Supreme Court resolves Fisher v. University of Texas, No. 14-981, cert. granted, 135

S.Ct. 2888 (U.S. June 29, 2015), or until further order of this Court. Both parties are hereby

ordered to submit, jointly or separately, no later than October 23, 2015, written proposals

concerning what additional discovery each believes should go forward during the Fisher stay. As

a general guideline, the Court is inclined to allow discovery to proceed, but not require Harvard

to produce individual student or applicant files. After reviewing the parties’ proposals, the Court

will issue a separate order outlining the terms of the Fisher stay.

SO ORDERED. Dated: October 9, 2015

/s/ Allison D. Burroughs ALLISON D. BURROUGHS DISTRICT JUDGE

1 With regard to the production of admissions data, the parties are urged to resolve any disputes pertaining to potential privacy issues. If they are unable to do so, the parties may notify the Court and request a status conference.
2 In light of this ruling, Harvard’s Emergency Motion for a Protective Order and a Temporary Stay of Depositions [ECF No. 104] is DENIED AS MOOT.
2

 
 Case: 15-C1a8s2e3 1:1D4-occvu-1m4e1n7t6: -5A8DB PaDgoec:u1mentD1a1te4 FFileilde:d1122/0/099/2/10515PagEen1troyfID13: 5960232
United States Court of Appeals
For the First Circuit
No. 15-1823 STUDENTS FOR FAIR ADMISSIONS, INC., Plaintiff, Appellee, v.
PRESIDENT AND FELLOWS OF HARVARD COLLEGE (HARVARD CORPORATION), Defendant, Appellee;
SARAH COLE; FADHAL MOORE; ARJINI KUMARI NAWAL; ITZEL VASQUEZRODRIGUEZ; KEYANNA WIGGLESWORTH; M.B.; K.C.; Y.D.; G.E.; A.G.;
I.G.; R.H.; J.L.; R.S., Movants, Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Allison D. Burroughs, U.S. District Judge]
Before Howard, Chief Judge, Lynch and Kayatta, Circuit Judges.
Taylor Owings, with whom Lawrence E. Culleen, Nancy L. Perkins, Steven L. Mayer, Arnold & Porter, LLP, Jon M. Greenbaum, Lawyers' Committee for Civil Rights Under Law, Iván EspinozaMadrigal, and Lawyers' Committee for Civil Rights and Economic Justice, were on brief, for movants-appellants.
Seth P. Waxman, with whom Felicia H. Ellsworth, Eric F. Fletcher, Paul R.Q. Wolfson, Daniel Winik, and Wilmer Cutler Pickering Hale and Dorr LLP, were on brief, for defendant-appellee.
Patrick Strawbridge, with whom Consovoy McCarthy Park

Case: 15-C1a8s2e3 1:1D4-occvu-1m4e1n7t6: -5A8DB PaDgoec:u2mentD1a1te4 FFileilde:d1122/0/099/2/10515PagEen2troyfID13: 5960232
PLLC, Paul M. Sanford, and Burns & Levinson LLP, were on brief, for plaintiff-appellee.
December 9, 2015

Case: 15-C1a8s2e3 1:1D4-occvu-1m4e1n7t6: -5A8DB PaDgoec:u3mentD1a1te4 FFileilde:d1122/0/099/2/10515PagEen3troyfID13: 5960232
KAYATTA, Circuit Judge. This appeal arises out of a lawsuit brought by an organization that calls itself Students For Fair Admissions, Inc. ("SFFA") challenging Harvard College's consideration of race in its undergraduate admissions decisions. An opposing group of current and prospective Harvard students ("Students") who claim to be benefited by the school's current practice sought to intervene, over the objection of both parties, in order to advocate "vigorously" for the defeat of SFFA's claims. The district court denied Students' motion to intervene, instead granting Students leave to file amicus briefs. Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 308 F.R.D. 39, 52–53 (D. Mass. 2015). Students now appeal, arguing that the district court either committed an error of law or abused its discretion in denying their motion to intervene. For the following reasons, we affirm the district court's ruling.
I. Background The underlying lawsuit in which Students seek to intervene commenced on November 17, 2014, when SFFA filed a complaint with the district court alleging that Harvard's undergraduate admissions policy is racially and ethnically discriminatory, in violation of Title VI of the Civil Rights Act of 1964 and the Equal Protection Clause of the Fourteenth Amendment. Harvard admits, indeed proclaims, that it does consider an applicant's race, among many other factors, in deciding whether
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Case: 15-C1a8s2e3 1:1D4-occvu-1m4e1n7t6: -5A8DB PaDgoec:u4mentD1a1te4 FFileilde:d1122/0/099/2/10515PagEen4troyfID13: 5960232
to admit the applicant. Harvard says that it considers race in order to increase "student body diversity, including racial diversity." It denies that this consideration is unlawful.
During the early stages of discovery, Students filed a motion under Federal Rule of Civil Procedure 24(a)(2) and (b), seeking to intervene in this lawsuit either by right or by permission of the court. The district court denied the motion to intervene, holding that although Students' motion was "timely," Students failed to satisfy the remaining requirements of Rule 24(a) and (b). Students do not appeal the denial of their motion for permissive intervention under Rule 24(b). Rather, they focus this appeal on the district court's denial of their motion to intervene by right under Rule 24(a)(2).
II. Analysis Federal Rule of Civil Procedure 24(a)(2) states: On timely motion, the court must permit anyone to intervene who . . . claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest. Successful intervention by right under this rule requires intervenors to demonstrate that (1) their motion is timely; (2) they have an interest related to the property or transaction that forms the foundation of the ongoing action;
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Case: 15-C1a8s2e3 1:1D4-occvu-1m4e1n7t6: -5A8DB PaDgoec:u5mentD1a1te4 FFileilde:d1122/0/099/2/10515PagEen5troyfID13: 5960232
(3) the disposition of the action threatens to impair or impede their ability to protect their interest; and (4) no existing party adequately represents their interest. Ungar v. Arafat, 634 F.3d 46, 50 (1st Cir. 2011). Failure to satisfy any one of the four requirements defeats intervention by right. Id. at 51.
Applying these requirements calls for discretion in making "a series of judgment calls--a balancing of factors that arise in highly idiosyncratic factual settings." Id. While "the district court's discretion [in the context of intervention by right] is somewhat more circumscribed than in the context of intervention generally," Negrón-Almeda v. Santiago, 528 F.3d 15, 22 (1st Cir. 2008), we will only reverse "[i]f the district court either fails to follow the general recipe provided in Rule 24(a)(2) or reaches a plainly incorrect decision." Ungar, 634 F.3d at 51.
Rather than reviewing blow-by-blow each challenge to the district court's opinion, we train our analysis on the district court's finding that Students have failed to show that no "existing part[y] adequately represent[s] [Students'] interest." Fed. R. Civ. P. 24(a)(2). In conducting this analysis, we begin with a recognition that Students' burden of establishing inadequate representation "should be treated as minimal" and can be satisfied by showing "that representation of [the] interest 'may be' inadequate." Trbovich v. United Mine Workers of Am., 404 U.S. 528, 538 n.10 (1972) (emphasis added). On the other hand, we
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Case: 15-C1a8s2e3 1:1D4-occvu-1m4e1n7t6: -5A8DB PaDgoec:u6mentD1a1te4 FFileilde:d1122/0/099/2/10515PagEen6troyfID13: 5960232
require putative intervenors to produce "something more than speculation as to the purported inadequacy" of representation. Moosehead Sanitary Dist. v. S.G. Phillips Corp., 610 F.2d 49, 54 (1st Cir. 1979).
In trying to sustain even this minimal burden, Students buckle at the outset. The interests they claim (increasing their chances of gaining admission and/or being educated "among a critical mass of students who can relate to their racial identities") lead them to adopt four-square Harvard's goals of "defend[ing] Harvard's right to consider race and [] defeat[ing] SFFA's request for declaratory judgment."1 Given such a congruence in goals, this court presumes adequate representation. B. Fernández & Hnos., Inc. v. Kellogg USA, Inc., 440 F.3d 541, 546 (1st Cir. 2006); Daggett v. Comm'n on Governmental Ethics & Election Practices, 172 F.3d 104, 111 (1st Cir. 1999); Moosehead, 610 F.2d at 54. Adding heft to that presumption in this case are the facts that Harvard has the resources necessary to litigate the case, that it has retained counsel of whom Students offer no criticism, and that it has publicly characterized the lawsuit
1 Because we affirm the district court's denial of Students' motion to intervene based on the fact that Harvard will provide adequate representation, we need not decide whether Students' interests in this case are "significantly protectable." Pub. Serv. Co. of N.H. v. Patch, 136 F.3d 197, 205 (1st Cir. 1998) (quoting Donaldson v. United States, 400 U.S. 517, 531 (1971)).
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Case: 15-C1a8s2e3 1:1D4-occvu-1m4e1n7t6: -5A8DB PaDgoec:u7mentD1a1te4 FFileilde:d1122/0/099/2/10515PagEen7troyfID13: 5960232
through its highest officials as a threat to its "most fundamental values."
With that factually reinforced presumption in mind, we next consider Students' specific arguments for why we should nevertheless find as a matter of law that Students raise "sufficient doubt about the adequacy" of Harvard's representation in pursuing the shared goal of preserving Harvard's ability to consider an applicant's race in its admissions decisions. B. Fernández, 440 F.3d at 547 (quoting Trbovich, 404 U.S. at 538). We undertake that consideration "in light of the issues at stake in the particular litigation", Pub. Serv. Co. of N.H. v. Patch, 136 F.3d 197, 208 (1st Cir. 1998), as they reveal themselves based on a "commonsense view of the overall litigation." Id. at 204 (citing United States v. Hooker Chems. & Plastics Corp., 749 F.2d 968, 983 (2d Cir. 1984)).
Students point to what they claim is "Harvard's unwillingness to recognize the need for race-conscious admissions policies to balance the adverse effect of other admissions criteria and practices . . . like the legacy policy," referring to Harvard's practice of giving some admissions preference to certain relatives of alumni. Students claim that Harvard will not discuss the effects of those policies, but that they will.
To establish that a party's representation of the intervenor's interest will be per se inadequate because the party
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Case: 15-C1a8s2e3 1:1D4-occvu-1m4e1n7t6: -5A8DB PaDgoec:u8mentD1a1te4 FFileilde:d1122/0/099/2/10515PagEen8troyfID13: 5960232
might not make a particular argument, we ask whether pursuit of the shared goal obviously calls for the argument to be made. See Daggett, 172 F.3d at 112; see also Maine v. Dir., U.S. Fish & Wildlife Serv., 262 F.3d 13, 19–20 (1st Cir. 2001). It is by no means obvious to us that the goal of defeating SFFA's claims calls for chronicling and highlighting the manner in which Harvard's other voluntary admissions practices supposedly decrease diversity. To the contrary, such an undertaking would seem to cut against Harvard's essential position that race-conscious admissions practices are necessary to increase diversity. See Fisher v. Univ. of Tex. at Austin, 133 S. Ct. 2411, 2420 (2013) (stating that a university's consideration of an applicant's race is permissible, provided that it is necessary to achieve the educational benefits of diversity). This may well be why the district court reasoned that SFFA was likely to try to show precisely what Students say they would seek to show about the effect of legacy preferences.2 Students for Fair Admissions, 308 F.R.D. at 51. In this respect, Students' intervention in the action would seem more likely to hinder rather than to help the pursuit of the very goal they share with Harvard.
In a slightly different variation on this theme, Students argue that they will be more single-mindedly zealous than
2 SFFA's complaint suggests that because Harvard could increase diversity by voluntarily eliminating legacy preferences and policies, race-conscious admissions practices are not necessary.
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Case: 15-C1a8s2e3 1:1D4-occvu-1m4e1n7t6: -5A8DB PaDgoec:u9mentD1a1te4 FFileilde:d1122/0/099/2/10515PagEen9troyfID13: 5960232
Harvard because Harvard's balancing of competing priorities may pose a "settlement risk: if Harvard prioritizes practices, like the legacy policy, that encourage donors and continued financial support of the institution and it perceives them to be at risk in this litigation, then it might modify or abandon its race-conscious policies in order to settle." Exactly how any relief ordered by the court on SFFA's complaint might require Harvard to terminate practices like the legacy policy, Students do not explain. Their argument also assumes that intervention would somehow enable Students to limit Harvard's discretion in deciding whether to settle or fight. Yet Students point to no basis for such an assumption. To the contrary, Students concede that they lack any legal basis for requiring Harvard to maintain its current practices. Therefore, if Students' theory that putting legacy practices under scrutiny during the litigation might cause Harvard to settle were correct, then once again Students would seem to be seeking intervention to do something that would work against the goal they profess to share.
Of course, we doubt that Students and their able counsel would really pursue such a counter-productive approach if they believe what they claim about Harvard's relative priorities. Nonetheless, the fact that these arguments are the best that they can offer in trying to say why Harvard will not adequately defend
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Case: 15-C1a8s2e3 1:1D4-occvu-1m4e1n7t6: -5A8DB PaDgoec:u1m0ent 1D1a4te Filed:1122//0099//125015PageE1n0troyfID13: 5960232
the lawsuit suggests quite strongly that Students' participation as a party is not needed to fill in a hole in Harvard's defense.
We recognize that our holding is on the surface contrary to a holding reached sixteen years ago by the Sixth Circuit in Grutter v. Bollinger, 188 F.3d 394 (6th Cir. 1999). But see Hopwood v. Texas, 21 F.3d 603, 605–06 (5th Cir. 1994) (per curiam). Grutter, however, seemed to rely on the premise that "evidence of past discrimination by the University itself or of the disparate impact of some current admissions criteria . . . may be important and relevant factors in determining the legality of a raceconscious admissions policy." Grutter, 188 F.3d at 401. Prior and subsequent Supreme Court decisions, however, cast doubt on the relevance of such factors in sustaining a race-conscious admissions policy. See Fisher, 133 S. Ct. at 2421 (stating that the "only interest this Court has approved in" the context of higher education is "the benefits of a student body diversity that 'encompasses a . . . broa[d] array of qualifications and characteristics of which racial or ethnic origin is but a single though important element'") (quoting Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 315 (1978)). In any event, even putting to one side any question concerning Grutter's suggestion that evidence of past discrimination might justify the indefinite continuation of race-conscious admissions to a student population that rolls over every four years, we still prefer our analysis to
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that offered by the split Grutter circuit court given that, intervention or not, Harvard could decide to settle without Students even being at the table.
Nor does our own prior decision in Cotter v. Mass. Ass'n of Minority Law Enforcement Officers, 219 F.3d 31 (1st Cir. 2000), require reversal in this case. Cotter was, by its own terms, virtually sui generis, eschewing a "simple formula" as "difficult, if not impossible, to contrive," id. at 34, and concerning itself "with matters of degree and a particular fact pattern," id. at 37. See Patch, 204 F.3d at 204 ("Because small differences in fact patterns can significantly affect the outcome, the very nature of Rule 24(a)(2) inquiry limits the utility of comparisons between and among published opinions."). The Cotter plaintiffs' claims against the defendant employer actually put at risk the existing jobs of the proposed intervenors and those whom they represented. Id. at 34–35. Unlike Harvard, the defendant in Cotter neither opposed intervention nor professed to be in a position to adequately represent intervenors' interests. Id. at 33. Most importantly, the intervenors in Cotter proposed to argue that the defendant was "in violation of law," id. at 36, and that the practices challenged in the lawsuit were defensible as a remedy for past unlawful discrimination, id. at 35, which is precisely the type of legal argument Students acknowledge their advocacy will lack because it has no toehold in this case. All in all,
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Cotter left ample room for the district court's ruling in this materially different litigation.
We have also considered Students' argument that their inability to keep Harvard from settling does not per se defeat their motion to intervene by right, citing Conservation Law Foundation of New England, Inc. v. Franklin, 989 F.2d 54, 59 (1st Cir. 1993). In that case, though, we merely said that the fact that a party was allowed to intervene did not mean that it would later necessarily have standing to oppose entry of a consent decree. Id. Here, we simply hold that, when a party cites a fear of settlement as a reason to intervene, it is not an abuse of discretion to find that reason insufficient if the intervention will not reduce the likelihood of settlement, much less if intervention might increase the likelihood.
III. Conclusion For the reasons set forth above, we can find no reason to criticize the district court's thoughtful and carefully considered disposition of Students' motion, and we are confident that Students will find that amicus briefs will provide them with a fair opportunity to voice their views concerning the issues posed by the litigation.3 Therefore, we affirm.
3 In granting Students leave to participate as amici curiae, the district court permitted them to do the following: 1) "submit a brief or memorandum of law not to exceed 30 pages, exclusive of exhibits, on any dispositive motion in this case"; 2) "participate in oral argument on any dispositive motion"; and 3) "submit
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personal declarations or affidavits in support of their memorandum of law, which may be accorded evidentiary weight if otherwise proper." Students for Fair Admissions, 308 F.R.D. at 53.
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 Case 1:14-cv-14176-ADB Document 324 Filed 06/02/17 Page 1 of 17

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

STUDENTS FOR FAIR ADMISSIONS, *

INC.

*

*

Plaintiff,

*

*

v.

*

*

PRESIDENT AND FELLOWS OF

*

HARVARD COLLEGE (HARVARD

*

CORPORATION),

*

*

Defendant.

*

Civil Action No. 14-cv-14176-ADB

MEMORANDUM AND ORDER DENYING MOTION TO DISMISS BURROUGHS, D.J.
I. INTRODUCTION In this action, Students for Fair Admissions, Inc. (“SFFA”) alleges that Harvard College
(“Harvard”) employs racially and ethnically discriminatory policies and procedures in administering its undergraduate admissions program, in violation of Title VI of the Civil Rights Act of 1964 and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Presently pending before this Court is Harvard’s motion to dismiss for lack of standing pursuant to Federal Rule of Civil Procedure 12(b)(1). [ECF No. 187]. Harvard filed the instant motion on September 23, 2016, and SFFA opposed it on October 21, 2016 [ECF No. 204].1 For the reasons stated below, the motion is DENIED.

1 Both parties also filed declarations and exhibits in support of their positions. [ECF Nos. 188, 205].
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II. RELEVANT BACKGROUND2 SFFA filed its Complaint with this Court on November 17, 2014 [ECF No. 1], and
Harvard filed its Answer on February 18, 2015 [ECF No. 17]. SFFA’s Complaint sets forth two types of allegations. First, SFFA contends that the general manner in which Harvard considers race in its undergraduate admissions program violates the Equal Protection Clause. As opposed to using race as a mere “plus” factor in admissions decisions, SFFA claims that Harvard engages in prohibited “racial balancing.” Second, SFFA alleges that Harvard’s policies invidiously discriminate against Asian-American applicants in particular because, by admitting only a limited number of Asian-American applicants each year, Harvard, in effect, forces AsianAmerican applicants to compete against each other for those spots. Consequently, a large number of otherwise highly-qualified Asian-American applicants are allegedly denied admission to Harvard on the basis of their race or ethnicity.
SFFA is an Internal Revenue Code Section 501(c)(3) organization whose claimed mission is to defend human and civil rights secured by law, including equal protection rights, through litigation or other lawful means.3 SFFA brings this action on behalf of its members. Its membership is composed of a coalition of applicants and prospective applicants to institutions of higher education, along with their parents and other individuals, including at least one AsianAmerican student member who applied for and was denied admission to Harvard’s 2014 entering
2 There are other motions pending before this Court, including Harvard’s motion for judgment on the pleadings pursuant to Rules 12(c) and 12(h)(2) [ECF No. 185]. In this Memorandum and Order, the Court addresses only the motion to dismiss for lack of jurisdiction and tailors its discussion accordingly. 3 The Court includes additional facts regarding SFFA’s membership and organizational structure infra at 6–7.
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class (the “Applicant”). Complaint ¶¶ 12–24.4 According to SFFA, this Applicant intends to transfer to Harvard when the school stops using its race-based discrimination admissions policy.
The Complaint requests the following relief: declaratory judgments that Harvard’s admissions policies and procedures violate Title VI of the Civil Rights Act of 1964 and that any use of race or ethnicity in the educational setting violates the Fourteenth Amendment and Title VI; permanent injunctions prohibiting Harvard from using race as a factor in future undergraduate admission decisions and requiring it to make its admissions decisions in a raceblind manner; attorneys’ fees and costs; and any other relief this Court finds appropriate.
III. LEGAL STANDARD Because Harvard’s Rule 12(b)(1) challenge to SFFA’s constitutional standing implicates
this Court’s subject matter jurisdiction, see P.R. Tel. Co. v. T-Mobile P.R. LLC, 678 F.3d 49, 57 (1st Cir. 2012), the Court is not restricted to the four corners of the Complaint and “may consider whatever evidence has been submitted, such as the depositions and exhibits,” Aversa v. United States, 99 F.3d 1200, 1210 (1st Cir. 1996); see also Torres-Negron v. J & N Records, LLC, 504 F.3d 151, 163 (1st Cir. 2007); Katz v. Pershing, LLC, 806 F. Supp. 2d 452, 456 (D. Mass. 2011), aff’d, 672 F.3d 64 (1st Cir. 2012) (“A court is permitted to look beyond the pleadings to determine jurisdiction on a 12(b)(1) motion, hence the formality of converting the motion to one for summary judgment need not be observed.”).
4 Following the filing of the Complaint, SFFA’s membership continued to grow and it added additional members, including several that it identifies as “Standing Members,” who have submitted signed declarations in connection with this motion. See Exhibits to [ECF No. 205]. The Standing Members include Asian-American applicants who were rejected from Harvard, Asian-American high school students who claim they will apply to Harvard, and parents of applicants and prospective applicants.
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IV. DISCUSSION A. Associational Standing
The Constitution gives the judiciary power to hear only “Cases” and “Controversies.” U.S. Const. art. III, § 2, cl. 1. The Supreme Court has interpreted this requirement to mean that courts may decide only “cases and controversies of the sort traditionally amenable to, and resolved by, the judicial process.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 102 (1998). A plaintiff’s standing to sue is “part of the common understanding of what it takes to make a justiciable case.” Id. Therefore, “the absence of standing sounds the death knell for a case.” Microsystems Software, Inc.v. Scandinavia Online AB, 226 F.3d 35, 39 (1st Cir. 2000). The standing determination is “claim-specific,” meaning that an individual plaintiff “must have standing to bring each and every claim that [he or] she asserts.” Katz v. Pershing, LLC, 672 F.3d 64, 71 (1st Cir. 2012).
Article III standing requires that three conditions be satisfied. “First and foremost, there must be alleged (and ultimately proved) an ‘injury in fact.’” Steel Co., 523 U.S. at 103 (quoting Whitmore v. Arkansas, 495 U.S. 149, 155 (1990)). This injury “must be concrete in both a qualitative and temporal sense,” “distinct and palpable” as opposed to “abstract,” and “actual or imminent” as opposed to “conjectural or hypothetical.” Whitmore, 495 U.S. at 155 (internal quotations and citations omitted). Second, standing requires causation, defined as a “fairly traceable connection between the plaintiff’s injury and the complained-of conduct of the defendant.” Steel Co., 523 U.S. at 103. Finally, standing requires “redressability—a likelihood that the requested relief will redress the alleged injury.” Id.
“[A]n association may have standing solely as the representative of its members even in the absence of injury to itself, in certain circumstances.” Camel Hair & Cashmere Inst. of Am.,
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Inc. v. Associated Dry Goods Corp., 799 F.2d 6, 10 (1st Cir. 1986) (citing Warth v. Seldin, 422 U.S. 490, 511 (1975)). Specifically, “an association has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Hunt v. Wash. State Apple Advert. Comm’n, 432 U.S. 333, 343 (1977). The first two Hunt prongs are constitutional, and the third is prudential. United Food & Com. Workers Union Local 751 v. Brown Grp., Inc., 517 U.S. 544, 555–57 (1996). Only one member need have individual standing in order for an organization to satisfy the first Hunt factor. See Playboy Enters., Inc. v. Pub. Serv. Comm’n of P.R., 906 F.2d 25, 34 (1st Cir. 1990) (“[T]he Supreme Court has never required that every member of an association have standing before it can sue on behalf of its members. ‘The association must allege that its members, or any one of them, are suffering immediate or threatened injury as a result of the challenged action of the sort that would make out a justiciable case had the members themselves brought suit.’” (quoting Warth, 422 U.S. at 511)).
The Hunt Court also held that an organization that was not “a traditional voluntary membership organization” because it did not have any formal members could still have associational standing if its constituents “possess[ed] all of the indicia of membership in an organization.” Hunt, 432 U.S. at 344–45.5 Indicia of membership, as identified by the Hunt Court, include that the purported members “alone elect the members of the Commission; they
5 The Hunt Court discussed two other reasons justifying its holding that the organization at issue in that case had associational standing: that it “serves a specialized segment of the State’s economic community which is the primary beneficiary of its activities, including the prosecution of this kind of litigation” and “the interests of the Commission itself may be adversely affected by the outcome of this litigation.” Hunt, 432 U.S. at 344–45. Here, the parties focus only on the indicia-of-membership rationale.
5

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alone may serve on the Commission; they alone finance its activities, including the costs of this lawsuit, through assessments levied upon them.” Id. Ultimately, the Hunt Court found that the Commission at issue in that case had associational standing even though it was not a typical membership organization, at least in part because “[i]n a very real sense . . . the Commission represents the State’s [apple] growers and dealers and provides the means by which they express their collective views and protect their collective interests.” Id. at 345. Harvard argues that the indicia-of-membership test articulated in Hunt should be applied to all organizations, while SFFA argues that it is not applicable to membership organizations, like the SFFA.
B. Nature of the SFFA The SFFA, a nonstock corporation, was formed under the laws of Virginia on July 30, 2014. [ECF No. 188, Ex. A (“Blum Tr.”) at 11:23–25]. According to SFFA’s bylaws, as amended on June 19, 2015 (hereinafter, the “Bylaws”),6 the organization’s purpose is “to defend human and civil rights secured by law, including the right of individuals to equal protection under the law, through litigation and other lawful means.” [ECF No. 188, Ex. B (“Bylaws”), art. II]. The Board of Directors, which manages the business and affairs of SFFA, is composed of four Board-Elected Directors and one Member-Elected Director. Bylaws, art. IV, §§ 4.01, 4.02. The Board-Elected Directors are elected by a majority vote of the directors then in office, and the Member-Elected Director is elected by a majority vote of the members. Id. § 4.04. Actions by the Board of Directors generally require a majority vote of the Directors present at any given meeting (where there is a quorum, defined as a majority of all Directors). Id. § 4.08. SFFA has formal members, referred to as “General Members.” According to the SFFA Bylaws, an individual qualifies as a General Member if he or she “seeks to support the purposes
6 Prior to the June 19, 2015 amendment, SFFA members had no voting rights and were not required to make any financial contributions to join.
6

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and mission of the Corporation, pays membership dues as prescribed by the Board of Directors, and meets any additional standards and procedures that may be prescribed from time to time.” Bylaws, art. III, § 3.02. The Bylaws further specify that General Members are not “members” within the meaning of the Virginia Nonstock Corporation Act.7 Bylaws, art. III, § 3.01. Initially, SFFA did not require a membership fee and a person became a member by providing their first and last name and e-mail address through the SFFA website, Blum Tr. at 130:16–133:22, but SFFA has since begun requiring an initial, one-time contribution of ten dollars, see [ECF No. 188, Ex. B at 2].
SFFA now has approximately 20,000 members, although for present purposes it only asserts associational standing based on the circumstances of thirteen of its members, most of whom have submitted signed declarations in support of SFFA’s opposition to the motion to dismiss. See [ECF No. 204 at 6]; see also Exhibits to [ECF No. 205]. Seven of these 13 members are Asian-American students who applied to and were rejected from Harvard [ECF Nos. 205-26, 34, 35, 38, 39, 40, 41] and two are Asian-American high school students who intend to apply to Harvard in the future [ECF Nos. 205-36, 42]. Their declarations state that they have voluntarily joined SFFA, support its mission, have been in contact with SFFA, and had the opportunity to express their views on the direction of this litigation.
7 The Virginia Nonstock Corporation Act defines a “member” as “one having a membership interest in a corporation in accordance with the provisions of its articles of incorporation or bylaws.” Va. Code § 13.1-803. “Membership interest” is defined as the “interest of a member in a domestic or foreign corporation, including voting and all other rights associated with membership.” Id.
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C. Applicability of the Indicia-of-Membership Test to SFFA The thrust of Harvard’s argument is that SFFA’s General Members play no meaningful role in the organization and thus SFFA does not genuinely represent them such that it has associational standing to sue on their behalf. Harvard interprets the cases on associational standing following Hunt to require that an association’s constituents exhibit “indicia of membership,” in addition to the three Hunt prerequisites commonly cited in these cases, in order for the association to have standing to represent them.8 See, e.g., [ECF Nos. 188 at 8; 220 at 7 n.5]. SFFA responds that the Court need not undertake an indicia-of-membership inquiry where an organization has actual members and satisfies the three Hunt prerequisites, but that it would nonetheless withstand such an inquiry. Generally speaking, the indicia-of-membership test for associational standing purposes is applied when a case requires a functional analysis of whether an association has standing to sue on behalf of its constituents, often in situations when the organization does not have any actual members, such as the state agency involved in Hunt. See Hunt, 432 U.S. at 344 (“[W]hile the apple growers and dealers are not ‘members’ of the Commission in the traditional trade association sense, they possess all of the indicia of membership in an organization.”); see also Funeral Consumers All., Inc. v. Serv. Corp. Int’l, 695 F.3d 330, 344 n.9 (5th Cir. 2012) (“If the association seeking standing does not have traditional members, as here, the association establishes its standing by proving that it has ‘indicia of membership’. . . .” (citing Hunt, 432 U.S. at 344–45)); Disability Advocates, Inc. v. N.Y. Coal. for Quality Assisted Living, Inc., 675
8 “‘Individuals identified for standing purposes by an organization who are not legally ‘members’ [are] referred to as . . . ‘constituents[.]’” Citizens Coal Council v. Matt Canestrale Contracting, Inc., 40 F. Supp. 3d 632, 639 (W.D. Pa. 2014) (quoting See Karl S. Coplan, Is Voting Necessary? Organization Standing and Non-Voting Members of Environmental Advocacy Organizations, 14 Southeastern Envtl. L.J. 47, 52 n. 26 (2005)).
8

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F.3d 149, 159 (2d Cir. 2012) (“Hunt held that the Constitution requires that the constituents of a non-membership organization manifest the ‘indicia of membership’ for that organization to have associational standing to sue on their behalf.”); Ball by Burba v. Kasich, No. 2:16-CV-00282, 2017 WL 1102688, at *13 (S.D. Ohio Mar. 23, 2017) (“With respect to the first [Hunt] prong, when an association lacks traditional members, the association may nonetheless have standing where its constituents ‘possess all of the indicia of membership in an organization.’” (quoting Hunt, 432 U.S. at 344)); AARP v. U.S. Equal Emp’t Opportunity Comm’n, No. CV 16-2113 (JDB), 2016 WL 7646358, at *5 (D.D.C. Dec. 29, 2016) (“[M]any of the cases that do discuss indicia of membership are those in which the organization at issue clearly does not have members.”); Sylvia’s Haven, Inc. v. Mass. Dev. Fin. Agency, 397 F. Supp. 2d 202, 207–08 (D. Mass. 2005) (conducting indicia-of-membership analysis in context of informal association, but concluding that it did not meet the other Hunt prerequisites). Thus, Hunt’s indicia-ofmembership test clearly applies in determining the associational standing of organizations that lack actual members.
It is less clear, however, whether Hunt’s indicia-of-membership test can or should ever be undertaken in connection with associations that actually have identifiable members, such as SFFA, and, if so, under what circumstances. Several judges have noted that this issue is unresolved. See Citizens Coal Council v. Matt Canestrale Contracting, Inc., 40 F. Supp. 3d 632, 643 (W.D. Pa. 2014) (“It is questionable whether the ‘indicia of membership’ test applies at all where, as here, the organization is clearly a volunteer membership organization . . . .”); AARP, 2016 WL 7646358, at *5 (“There appears to be a gap in the associational standing case law about when or how the indicia of membership inquiry should be applied.”). Without expressly addressing it, courts in this Circuit have routinely not applied the indicia-of-membership test, and
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instead simply considered the three delineated Hunt prerequisites, when the associations were membership organizations. See, e.g., Merit Const. All. v. City of Quincy, 759 F.3d 122, 126–27 (1st Cir. 2014) (holding that organization had associational standing without conducting indiciaof-membership test); Camel Hair & Cashmere Inst. of Am., Inc., 799 F.2d at 10–12 (same); Sexual Minorities Uganda v. Lively, 960 F. Supp. 2d 304, 325–28 (D. Mass. 2013) (same).9 Furthermore, several judges have explicitly noted that Hunt’s indicia-of-membership test applies only when an organization is a non-membership organization. See Brady Campaign to Prevent Gun Violence v. Salazar, 612 F. Supp. 2d 1, 29 (D.D.C. 2009) (“The inquiry into the ‘indicia of membership’. . . is necessary only when an organization is not a ‘traditional membership organization.’” (quoting Gettman v. DEA, 290 F.3d 430, 435 (D.C. Cir. 2002))); Cal. Sportfishing Prot. All. v. Diablo Grande, 209 F. Supp. 2d 1059, 1066 (E.D. Ca. 2002) (“[T]he ‘indicia of membership’ requirement in Hunt applies only to situations in which an organization is attempting to bring suit on behalf of individuals who are not members.”).10
Although Harvard argues that Hunt and its progeny support the application of an indiciaof-membership test to all organizations asserting associational standing, regardless of whether they formally have members, the Court is not aware of any case that explicitly stands for this proposition. Under such a formulation, associational standing would turn on a subjective
9 Harvard reconciles such cases with its legal position by claiming that courts can ignore the indicia-of-membership test when the issue of whether an association is a genuine membership organization is undisputed. This view, however, is not discussed or endorsed in the case law. Further, courts have “an independent obligation to assure that standing exists, regardless of whether it is challenged by any of the parties.” Summers v. Earth Island Inst., 555 U.S. 488, 499 (2009). 10 Harvard argues that both these cases are inapposite because they do not involve organizations in which members had as little control as in SFFA’s case. [ECF No. 220 at 5]. Even if factually distinguishable, however, the legal reasoning is relevant.
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evaluation of whether “members” are “genuine” members or not, with the organization’s view of its own members being only one factor in the analysis.
In Hunt, the Supreme Court concluded that the Washington State Apple Advertising Commission was “not a traditional voluntary membership organization such as a trade association, for it ha[d] no members at all.” Hunt, 432 U.S. at 342. The Commission was created by statute and was “composed of 13 Washington apple growers and dealers who [we]re nominated and elected within electoral districts by their fellow growers and dealers.” Id. at 337. The Hunt Court nonetheless concluded that, although the Commission had no members “in the traditional trade association sense,” its constituents “possess[ed] all the indicia of membership in an organization,” which permitted associational standing. Id. at 344–45. There, the indicia of membership established that “the Commission represent[ed] the State’s growers and dealers and provide[d] the means by which they express[ed] their collective views and protect[ed] their collective interests.” Id. at 345.
The Court reads Hunt as standing for the following propositions: (1) a membership organization has standing to sue on behalf of its members if it satisfies the three Hunt prerequisites (in short, that at least one member has a personal injury-in-fact, germaneness, and no need for individual member participation); and (2) a non-membership organization might still have associational standing provided it has sufficient indicia of membership as more fully set forth in Hunt and its progeny. In introducing the indicia-of-membership test, Hunt expanded the category of organizations that could have associational standing, rather than limiting it.
Harvard cites Wash. Legal Found. v. Leavitt, 477 F. Supp. 2d 202, 208–09 (D.D.C. 2007) and Package Shop, Inc. v. Anheuser-Busch, Inc., No. 83-513, 1984 WL 6618, at *41 (D.N.J. Sept. 25, 1986) in support of the proposition that “courts have held that organizations referring to
11

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their supporters as ‘members’ nevertheless lacked standing to represent those members in litigation.” Harvard then cites the following cases to argue that courts have applied the indiciaof-membership test in determining whether organizations should be allowed “to sue on behalf of their members:” Friends of the Earth Inc. v. Chevron Chemical Co., 129 F.3d 826, 829 (5th Cir. 1997); Playboy Enters., Inc., 906 F. 2d at 25; and Concerned Citizens Around Murphy v. Murphy Oil USA, Inc., 686 F. Supp. 2d 663, 675–76 (E.D. La. 2010).
None of these cases require or even recommend the application of the indicia-ofmembership test to all associational standing cases. For example, in Washington Legal Foundation v. Leavitt, an organization tried to assert associational standing on behalf of individuals who were not formally WLF members, which led the court to undertake a functional analysis of the organization’s ability to sue on behalf of those individuals. 477 F. Supp. 2d at 208. Thus, the court applied the functional indicia-of-membership analysis in determining whether the organization could assert associational standing on behalf of non-members. Here, in contrast, SFFA seeks to represent individuals who are clearly members as defined by its Bylaws. The other cases similarly do not hold that the indicia-of-membership test applies to membership organizations like SFFA and the factual circumstances triggering the indicia-of-membership analysis in those cases are not present here.11 See Package Shop, Inc., 1984 WL 6618, at *39–40 (using indicia-of-membership analysis to determine whether organization was truly a membership organization for purposes of the lawsuit where organization had been formed long before for another purpose and members had shown no support for organization’s current purpose); Friends of the Earth, Inc., 129 F.3d at 829 (“[T]he ‘indicia of membership’ test is the
11 Playboy Enterprises is inapposite because the First Circuit did not undertake the indicia-ofmembership analysis as outlined in Hunt. Playboy Enters., Inc., 906 F.2d at 34–35 (rebutting party’s argument that organization was just an “empty husk” and did not represent its members’ interests, but without applying the Hunt indicia-of-membership test).
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correct one to apply to determine whether a purported corporation, despite the failure to meet state law requirements, has ‘members’ whose interests it can represent in federal court.” (emphasis added)); Concerned Citizens Around Murphy, 686 F. Supp. 2d at 675–77 (E.D. La. 2010) (holding that organization lacking some corporate formalities and formal membership structure had associational standing because it met Hunt’s indicia-of-membership test).
Thus, the key cases Harvard relies on to support the proposition that Hunt’s membership test should be applied to actual membership organizations all involved organizations that, unlike SFFA, asserted standing on behalf of non-members or had factual circumstances, not present here, that called for a functional analysis of its constituents. Further, the Court’s conclusion— that the indicia-of-membership inquiry should not be applied to SFFA under the circumstances of this case—is consistent with the rationale underlying associational standing. In Int’l Union, United Auto., Aerospace & Agr. Implement Workers of Am. v. Brock, the Supreme Court reaffirmed the principles in Hunt and rejected the Secretary of Labor’s argument that litigation based on associational standing would not guarantee adequacy of representation. 477 U.S. 274, 288–89 (1986). The Supreme Court noted that “the doctrine of associational standing recognizes that the primary reason people join an organization is often to create an effective vehicle for vindicating interests that they share with others.” Id. at 290. The circumstances here do not call for a functional analysis of SFFA’s membership. Where SFFA has clearly stated its mission in its Bylaws and website, where it has consistently, and recently, in highly public ways, pursued efforts to end alleged racial discrimination in college admissions through litigation, and where its members voluntarily associate themselves with the organization, it can be presumed for the purposes of standing that SFFA adequately represents the interests of its current members without needing to test this further based on the indicia-of-membership factors.
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D. Hunt’s Prerequisites Therefore, it is sufficient, for associational standing in this case, if SFFA meets the three criteria outlined in Hunt: that “(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Hunt, 432 U.S. at 343. Because Harvard does not dispute that the three Hunt prerequisites are met here, apart from the argument that the indicia-of-membership test should be applied to determine whether the SFFA is a membership organization in the first place, the Court addresses them only briefly. To satisfy the first Hunt requirement, “an organization suing as representative [must] include at least one member with standing to present, in his or her own right, the claim (or the type of claim) pleaded by the association.” United Food and Com. Workers Union Local, 517 U.S. at 555. SFFA has provided the affidavits of a subset of its members, referred to as Standing Members, which demonstrate that at least some of these individuals, the rejected applicants, would have standing to sue on their own.12 See Gratz v. Bollinger, 539 U.S. 244, 262–63 (2003) (holding that rejected applicant “able and ready” to transfer “has standing to seek prospective relief with respect to the University’s continued use of race in undergraduate admissions”). Second, the lawsuit is germane to SFFA’s purpose because, as stated in its Bylaws, SFFA’s mission is “to defend human and civil rights secured by law, including the right of individuals to equal protection under the law.” Pursuing litigation to end alleged racial discrimination in higher education admission furthers that purpose.
12 Because it was not raised by the parties and it is sufficient for associational standing that at least one member have standing to sue on his own, the Court does not address the issue of whether prospective college students, who have not yet applied, or the parents of applicants have standing to sue.
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Finally, SFFA requests only declaratory and injunctive relief, and obtaining such relief, based on the claims in this case, would not require individual participation by its members. See Camel Hair & Cashmere Inst. of Am., Inc., 799 F.2d at 12 (“Actions for declaratory, injunctive and other forms of prospective relief have generally been held particularly suited to group representation.”); see also Playboy Enters., 906 F.2d at 35 (“[J]ust because a claim may require proof specific to individual members of an association does not mean the members are required to participate as parties in the lawsuit.”). Here, the injunctive and declaratory relief requested need not be tailored to or require any individualized proof from any particular member.
Although the Court disagrees with Harvard that Hunt and subsequent cases require that membership organizations be subjected to an indicia-of-membership test as a matter of course, it recognizes that there may be situations in the future in which the adequacy of an organization’s representativeness is so seriously in doubt that the Court should consider Hunt’s indicia-ofmembership analysis or some other criteria to further evaluate the issue of associational standing. See Brock, 477 U.S. at 290 (“Should an association be deficient in this regard [i.e., adequacy of representation], a judgment won against it might not preclude subsequent claims by the association’s members without offending due process principles. And were we presented with evidence that such a problem existed either here or in cases of this type, we would have to consider how it might be alleviated.”); see also Camel Hair & Cashmere Inst. of Am., Inc., 799 F.2d at 11. This is, however, not one of those situations. A substantial part of SFFA’s mission is to end race-based admissions policies at American universities. Blum Tr. 47:16–25. SFFA clearly communicated its mission, which has stayed consistent since its founding, to prospective members through its website and in its outreach efforts. See, e.g., Blum Tr. 110:2–7. Further,
15

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SFFA’s endeavors—both here and in North Carolina—are highly public.13 SFFA’s members
voluntarily join the organization, presumably knowing its purpose, by providing their name and
contact information and paying a small fee.14 See Friends of the Earth, 129 F.3d at 829. The
Bylaws plainly lay out who qualifies as a member and what a member’s role is and permit
members to vote for one member of the Board of Directors, who participates in Board decisions,
thereby granting members more direct access to SFFA’s management. Further, to support the
organization, members can voluntarily donate funds, in addition to the one-time, ten dollar
contribution (required since June 2015) as a way of influencing the organization. Moreover, the
voluntary nature of SFFA’s membership constitutes a form of influence by the members that
Harvard seems to underestimate. See Karl S. Coplan, Is Voting Necessary? Organization
Standing and Non-Voting Members of Environmental Advocacy Organizations, 14 Southeastern
Envtl. L.J. 47, 79 (2005) (“The ability of an organization’s constituents to join or quit the group
would appear to be a very effective means of ensuring the responsiveness of the organization’s
management—and also ensuring the ‘concrete adverseness’ required for organizational
13 SFFA also initiated a case against the University of North Carolina and members of its board of governors, the University of North Carolina at Chapel Hill and members of its board of trustees and various school officials, alleging that the university’s admissions process violates the Fourteenth Amendment of the U.S. Constitution and Title VI of the Federal Civil Rights Act of 1964. See Students for Fair Admissions, Inc. v. University of North Carolina, et al., No. 1:14cv-00954 (M.D.N.C. Nov. 17, 2014), [ECF No. 1]. 14 The First Circuit has held that “[w]here . . . there are no allegations of manipulative abuse of the rule, the time-of-filing rule is inapposite to the federal question context.” U.S. ex rel. Gadbois v. PharMerica Corp., 809 F.3d 1, 5 (1st Cir. 2015), cert. denied, 136 S. Ct. 2517 (2016). Although Harvard suggests that the circumstances surrounding the amendment of the Bylaws might indicate manipulation, it stops short of actually alleging that it occurred in this case. The Court notes that the Bylaws were amended over a year before Harvard filed its motion to dismiss for lack of standing. Finally, where SFFA could move to dismiss the lawsuit and possibly re-file it to avoid this issue, dismissal on this ground would only waste judicial and party resources. Accordingly, the Court examines SFFA’s current membership structure, rather than the structure that existed at the time the Complaint was filed, although it is not at all clear that the structures are so materially different as to significantly alter the analysis.
16

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standing.” (quoting Baker v. Carr, 369 U.S. 186, 204 (1962))). The Court also notes that courts

have found associational standing even in situations where members had no voting majority. See,

e.g., Or. Advocacy Ctr. v. Mink, 322 F.3d 1101, 1111 (9th Cir. 2003).

Finally, SFFA has submitted declarations of certain members whom it specifically

identifies for standing purposes. See Exhibits to [ECF No. 205]. Harvard attempts to minimize

the relevance of these declarations by arguing that assessing the genuineness of SFFA’s

membership should be done with reference to the entire membership, rather than just a few select

members. The Court has already highlighted certain general characteristics of SFFA that ensure

its representation of its members as a whole. The individual declarations, which show that SFFA

leadership communicates with members about this litigation and that the Standing Members have

given input concerning the case, further bolster SFFA’s claim that it is representing the interests

of its members. See, e.g., [ECF No. 205-26]. Finally, the Standing Members each stated that the

SFFA does in fact represent their interests. See, e.g., id.

The Court therefore finds that SFFA meets the prerequisites laid out in Hunt and has the

associational standing necessary to pursue this litigation.

V. CONCLUSION

Accordingly, Harvard’s motion to dismiss for lack of subject matter jurisdiction [ECF

No. 187] is DENIED.15

SO ORDERED.

Dated: June 2, 2017

/s/ Allison D. Burroughs ALLISON D. BURROUGHS U.S. DISTRICT JUDGE

15 For substantially the same reasons presented in this Memorandum and Order and in light of the standard for a motion for reconsideration, the Court also denies Harvard’s request to reconsider [ECF No. 154] its earlier discovery ruling bearing on SFFA’s standing [ECF No. 151].
17

 
 Case 1:14-cv-14176-ADB Document 325 Filed 06/02/17 Page 1 of 2

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

STUDENTS FOR FAIR ADMISSIONS, *

INC.

*

*

Plaintiff,

*

*

v.

*

*

PRESIDENT AND FELLOWS OF

*

HARVARD COLLEGE (HARVARD

*

CORPORATION),

*

*

Defendant.

*

Civil Action No. 14-cv-14176-ADB

MEMORANDUM AND ORDER GRANTING MOTION FOR PARTIAL JUDGMENT ON THE PLEADINGS BURROUGHS, D.J. On September 23, 2016, Harvard moved for partial judgment on the pleadings on Counts IV and VI pursuant to Fed. R. Civ. P. 12(c) and 12(h)(2). [ECF Nos. 185, 186]. SFFA opposed the motion on October 21, 2016 [ECF Nos. 202, 203], and Harvard filed its reply brief on November 4, 2016 [ECF NO. 218]. The intervenors also filed a memorandum in support of Harvard’s motion on October 19, 2016. [ECF No. 199]. For the reasons set forth below and more fully articulated by Harvard and the intervenors in their briefs, the Court grants the motion. The First Circuit recognizes, at least implicitly, the permissibility of partial judgments under Fed. R. Civ. P. 12. See, e.g., Najas Realty, LLC v. Seekonk Water Dist., 821 F.3d 134, 146 (1st Cir. 2016) (affirming district court’s grant of motion for partial judgment on pleadings pursuant to Fed. R. Civ. P. 12(c)). Further, SFFA acknowledges that ruling on Count VI would require this Court to overrule Supreme Court precedent, something it decidedly cannot do, and the Court does not find persuasive SFFA’s

1

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rationale that it should wait to enter judgment on the Count VI until the close of discovery

simply because discovery will not be impacted one way or another. Finally, Count IV presumes a

legal requirement for race-conscious admissions—that Harvard may only consider race for the

“last few places left”—that the case law does not support.

Accordingly, Harvard’s motion for partial judgment on the pleadings as to Count IV and

VI [ECF No. 185] is GRANTED.

SO ORDERED.

Dated: June 2, 2017

/s/ Allison D. Burroughs ALLISON D. BURROUGHS U.S. DISTRICT JUDGE

2

 
 Case 1:14-cv-14176-ADB Document 566 Filed 09/28/18 Page 1 of 40

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

STUDENTS FOR FAIR ADMISSIONS, *

INC.

*

*

Plaintiff,

*

*

v.

*

*

PRESIDENT AND FELLOWS OF

*

HARVARD COLLEGE (HARVARD

*

CORPORATION),

*

*

Defendant.

*

Civil Action No. 14-cv-14176-ADB

MEMORANDUM AND ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

BURROUGHS, D.J.

This case involves allegations that Defendant President and Fellows of Harvard College

(“Harvard”) maintains an undergraduate admissions program that discriminates against Asian

Americans in violation of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq.

(“Title VI”). The remaining claims asserted by Plaintiff Students for Fair Admissions Inc.

(“SFFA”) are: “Intentional Discrimination against Asian Americans” (Count I); “Racial

Balancing” (Count II); “Failure to Use Race Merely as a ‘Plus’ Factor in Admissions Decisions”

(Count III); and “Race-Neutral Alternatives” (Count V). [ECF Nos. 1, 325]. On June 15, 2018,

the parties filed cross-motions for summary judgment on all counts. [ECF Nos. 412, 417]. The

motions were opposed on July 27 and July 30, 2018 [ECF Nos. 435, 449], and reply briefs were

filed on August 27 and August 30, 2018. [ECF Nos. 484, 510]. Several interested non-parties

have appeared as amici curiae in support of or in opposition to the summary judgment motions.

A bench trial on the issue of liability is scheduled to begin on October 15, 2018.1 [ECF No. 405].

1 The parties have agreed to defer any further litigation of the issue of remedies until after liability is determined. [ECF Nos. 386, 387].

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For the reasons stated herein, the cross-motions for summary judgment are denied on all counts without prejudice to the parties reasserting their arguments at trial, consistent with this order. The Court will also further consider the arguments raised in the amicus briefs at trial.2 I. BACKGROUND
In February and April 2018, prior to the June 15 deadline for filing dispositive motions, the Court suggested to the parties that since the remaining claims appeared to require a factintensive inquiry, as well as the evaluation of conflicting expert testimony, summary judgment could be a time-consuming and duplicative effort for the parties and the Court, and perhaps not warranted in light of the upcoming bench trial. [ECF Nos. 384, 402]. Although Harvard agreed, SFFA contended that some or all of the claims could be resolved on summary judgment, while acknowledging that it would be reasonable for the Court to take any dispositive motions under advisement and proceed to trial. [ECF No. 384]. See Grutter v. Bollinger, 539 U.S. 306, 317–18 (2003) (district court took cross-motions for summary judgment under advisement and conducted 15-day bench trial before ruling on the motions). The Court ultimately permitted the parties to file dispositive motions [ECF No. 387], but cautioned that if the motions presented material factual disputes, the parties should expect a summary order of denial. [ECF No. 402].
Both parties have now moved for summary judgment on all counts. SFFA submitted in support of its motion a 900-paragraph statement of allegedly undisputed facts [ECF No. 414-2] (“SFFA Facts”), approximately 700 of which are at least partially in dispute [ECF No. 437]
2 Certain organizations that are affiliated with Harvard were permitted to appear as amici curiae [ECF No. 465] under the same or similar terms as the individual students who were previously allowed to participate in dispositive motion practice. [ECF Nos. 52, 244]. SFFA has since sought to strike portions of these organizations’ amicus briefs and their related sworn declarations. [ECF Nos. 471, 479]. The Court declines to strike these documents at this time, as their inclusion in the record does not bear on the resolution of the summary judgment motions. The Court will further assess the extent to which the students and other organizations may participate at trial, if at all. [ECF Nos. 52, 518, 532].
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(“Harvard Response”). SFFA disputes [ECF No. 452] (“SFFA Response”) approximately half of Harvard’s 278-paragraphs of allegedly undisputed facts [ECF No. 420] (“Harvard Facts”), and nearly all of Harvard’s 45-paragraph supplemental statement of material facts that allegedly preclude summary judgment for SFFA. [ECF Nos. 437, 511]. Further, the parties’ expert witnesses—David Card [ECF Nos. 419-33, 419-37], Ruth Simmons [ECF Nos. 419-28, 419-34], Peter S. Arcidiacono [ECF Nos. 415-1, 415-2, 415-3], and Richard D. Kahlenberg [ECF Nos. 416-1, 416-2, 416-3]—have each produced multiple expert reports that raise a plethora of conflicting opinions on key substantive issues in the case.
Except as otherwise noted, the following facts are not in dispute. A. Harvard’s Admissions Office Located in Cambridge, Massachusetts, Harvard is a liberal arts college and the oldest institution of higher learning in the United States. SFFA Facts ¶ 4. It receives federal financial assistance and is therefore subject to Title VI. SFFA Facts ¶ 9. For the Class of 2019, more than 37,000 people applied for undergraduate admission to Harvard, 26,000 of whom were domestic applicants.3 Harvard Facts ¶¶ 1, 5. Over 8,000 domestic applicants had perfect converted GPAs and over 5,000 domestic applicants achieved a perfect math or verbal SAT score. Harvard Facts ¶¶ 6í8. Harvard offered admission to 2,003 applicants for the Class of 2019. Harvard Facts ¶ 2. The Office of Admissions and Financial Aid at Harvard (“Admissions Office”) is tasked with making admissions decisions. SFFA Facts ¶ 6. This office employs approximately 40 admissions officers who, under the guidance of the Admissions Office’s leadership, handle most of the day-to-day operations of the admissions program.4 SFFA Facts ¶¶ 6, 13í14.
3 SFFA does not challenge Harvard’s undergraduate admissions program with respect to international applicants. 4 For the purposes of this litigation, the leadership of the Admissions Office includes William Fitzsimmons as the Dean of Admissions and Financial Aid, Marlyn McGrath as the Director of
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B. Applying to Harvard Students apply to Harvard either through the Early Action program, which typically has a November 1 deadline, or through the Regular Decision program, which typically has a January 1 deadline, but the same procedures for reviewing applications generally apply regardless of whether a student has applied for Early Action or Regular Decision. Harvard Facts ¶¶ 11í12. Students apply by submitting a Common Application, Universal College Application, or Coalition Application. Harvard Facts ¶ 13. They must complete a short supplement to indicate their interest and the strength of that interest in an academic field, a career, and extracurricular activities. Harvard Facts ¶ 14. Applicants may submit scholarly work, artwork, or recordings of music or dance performances. Harvard Facts ¶ 15. The Common Application, Universal College Application, and Coalition Application permit all students to identify their race (and students may choose more than one), but Harvard does not require them to do so. Harvard Facts ¶¶ 16í18, 20. Applicants may also include information about their race in other parts of the application, such as in their personal essay. Harvard Facts ¶ 17. After submitting an application, most students are interviewed in person by a Harvard alumnus who reports his or her feedback to the Admissions Office. Harvard Facts ¶ 21. In sum, a complete application file typically includes:
Admissions, and Sally Donahue as the Director of Financial Aid, although Ms. Donahue retired in July 2018 and Jake Kaufman now serves as Director of Financial Aid. SFFA Facts ¶¶ 13í15; Harvard Response ¶ 15. Other members of Harvard’s leadership include Drew G. Faust, the former President of Harvard from 2007 to June 30, 2018, and Lawrence Bacow, the current President of Harvard, who were or are responsible for overseeing all of Harvard’s degreegranting schools; Michael D. Smith, the Dean of the Faculty of Arts and Sciences, who is responsible for overseeing the administrative, financial, and human resources aspects of Harvard’s Faculty of Arts and Sciences and the Admissions Office, among other schools and departments; and Rakesh Khurana, the Dean of Harvard College, who reports to Dean Smith and is responsible for the undergraduate education and residential experience of Harvard students. SFFA Facts ¶¶ 10í15; Harvard Response ¶¶ 10í11.
4

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1. The applicant’s name, age, sex, address, citizenship, place of birth, and race (if disclosed);
2. Information about the applicant’s family; 3. The applicant’s standardized test scores; 4. The applicant’s high school transcripts and reported grade point average; 5. Information provided by the applicant’s high school about the school itself, such
as the number of students that attend college, the available courses, the percentage of students that receive free or reduced-price lunch, and the economic and demographic profile of the community; 6. One or more essays written by the applicant; 7. A letter from the applicant’s high school guidance counselor; 8. At least two letters of recommendation from high school teachers, and often additional recommendation letters from teachers, supervisors, or others; 9. In many cases, a detailed, multi-page evaluation from a Harvard alumni interviewer; and 10. The applicant’s answers to questions about his or her intended academic concentration, extracurricular and athletic participation, and post-college career.
Harvard Facts ¶ 22.
C. Application Review
Harvard organizes its review of application files into approximately twenty (eighteen
domestic and two international) geographical regions referred to as “dockets,” which vary widely
in geographic scope but cover a roughly similar number of applications. Harvard Facts ¶¶ 36í37;
SFFA Facts ¶¶ 65í66. A subcommittee of admissions officers—usually three to six “first
readers” that are assigned to specific areas within the docket and a senior admissions officer
serving as the “docket chair”—is responsible for the initial evaluation of all candidates within a
particular docket. Harvard Facts ¶¶ 38í40.
The written guidelines as to how admissions officers should review application files are
contained in the Admissions Office’s “Reading Procedures,” which are distributed to the
admissions officers each year. SFFA Facts ¶ 68. The Reading Procedures set forth, among other
things, criteria for assigning numerical ratings to each application. SFFA Facts ¶ 69. Harvard
also conducts an in-person orientation and training program for all newly hired admissions
5

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officers. SFFA Facts ¶ 70. After participating in orientation, new admissions officers are typically required to share the first 50 to 100 application files that they read with a more senior admissions officer who provides feedback on the ratings assigned by the new admissions officer. Harvard Facts ¶ 30; SFFA Facts ¶ 71. The work of new admissions officers is closely monitored by more senior admissions officers during their first few years of employment. SFFA Facts ¶ 71.
1. First Reader and Docket Chair To begin the application evaluation process, a first reader reviews the application files from the high schools in his or her area within the docket. Harvard Facts ¶ 41. First readers conduct the review using a “summary sheet,” which is a two to three-page document that is prepopulated with information from a particular student’s application, including that student’s high school, citizenship, test scores, GPA, class rank, and race. SFFA Facts ¶ 74. The summary sheet also contains three blank sections that may be completed by the first reader: “Ratings,” “Notes,” and “Reader Comments.” SFFA Facts ¶ 74. The Ratings section contains fourteen boxes representing the following categories in which an applicant may receive numerical scores: overall, academic, extracurricular, athletic, personal, teacher recommendation (up to four possible), a school support recommendation, two staff interview ratings (overall and personal), and two alumni interview ratings (overall and personal).5 SFFA Facts ¶ 75. The Notes section may be used to briefly summarize the application or other pertinent information, and the Comments section may be used to provide a more extensive discussion of the application. SFFA Facts ¶¶ 76í77.
5 Alumni and admissions officers assign ratings following an interview with an applicant based on criteria similar to the criteria used by first readers to assign their ratings. SFFA Facts ¶¶ 92í95.
6

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After reviewing an application file, the first reader assigns academic, extracurricular, athletic, personal, and overall ratings to the applicant, and rates the strength of the teacher and guidance counselor letters of recommendation. Harvard Facts ¶¶ 43í45. The numerical ratings generally range between 1 and 4 in all categories, with 1 being the best rating. Harvard Facts ¶¶ 46í47. Admissions officers may add a plus or a minus to a numerical rating of 2 or 3; a 2+ is better than a 2 which is better than a 2-. Harvard Facts ¶ 48; SFFA Response ¶ 48.
The academic rating summarizes the applicant’s academic achievement and potential based on grades, test scores, letters of recommendation, academic prizes, and any submitted academic work. Harvard Facts ¶ 49. The extracurricular rating captures the strength of the applicant’s involvement in activities during high school and his or her potential to contribute at Harvard outside of the classroom. Harvard Facts ¶ 53. The athletic rating takes into account the strength of the applicant’s potential contributions to athletics at Harvard, as well as the applicant’s athletic activity in high school. Harvard Facts ¶ 57. According to Harvard, the personal rating “summarizes the applicant’s personal qualities based on all aspects of the application, including essays, letters of recommendation, the alumni interview report, personal and family hardship, and any other relevant information in the application,” and admissions officers assign the personal rating based on their assessment of the applicant’s “humor, sensitivity, grit, leadership, integrity, helpfulness, courage, kindness and many other qualities.”6 Harvard Facts ¶¶ 59í60. The ratings for recommendations, referred to as “school support,” are meant to evaluate the strength of counselor and teacher recommendations. Harvard Facts ¶ 62; SFFA Response ¶ 62. Finally, the overall rating is intended to summarize the strength of the
6 SFFA admits that first readers determine the personal rating by examining a variety of subjective factors, but also contends that other unlisted factors, such as an applicant’s race, affect the personal rating. SFFA Response ¶ 60.
7

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application as a whole, although it is not determined by a formula and does not involve adding up the other ratings. Harvard Facts ¶¶ 64í65. Harvard instructs first readers to assign the overall rating by “stepping back and taking all the factors into account.” SFFA Facts ¶ 99. Admissions officers may consider race in assigning the overall rating, but are not supposed to consider race when assigning the academic, extracurricular, athletic, and personal ratings. Harvard Facts ¶ 119; SFFA Facts ¶ 214; Harvard Response ¶ 214.
After the first reader completes his or her evaluation, the application file may be sent to the docket chair for further review. Harvard Facts ¶ 67. The docket chair may assign ratings in the same categories as the first reader and add written comments. Harvard Facts ¶¶ 68í69. The first reader and the docket chair’s scores, as well as any comments from other readers, are reflected in the application file. Harvard Facts ¶ 70.
2. Subcommittee and Full Committee Meetings After each application has been reviewed by a first reader, the subcommittees meet to further evaluate the applications in their dockets. SFFA Facts ¶ 113. The first reader of an application pending before the subcommittee summarizes the strengths and weaknesses of that applicant’s candidacy. Harvard Facts ¶ 72. Subcommittee members then discuss the applicant and decide as a group what recommendation and level of support to convey to the full admissions committee regarding admission. Harvard Facts ¶¶ 73, 75. Dean Fitzsimmons also allegedly visits the subcommittee meetings to support applicants on the “Dean’s Interest List,” which is a list of applicants that may be of interest to Harvard. SFFA Facts ¶¶ 294í295; SFFA Response ¶ 73. After all of the subcommittees have decided which applications to recommend for admission, the full admissions committee (approximately 40 people) meets to make the final
8

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decisions on those applications.8 Harvard Facts ¶ 76; SFFA Facts ¶ 125. The full committee includes, among others, all the admissions officers who read application files, as well as Dean Fitzsimmons, Director McGrath, and the Director of Financial Aid. Harvard Facts ¶¶ 77í78.9 At a full committee meeting, the first reader of the application being discussed makes a presentation to the committee, typically emphasizing the applicant’s strengths. Harvard Facts ¶ 79. After the discussion is complete, the full committee decides whether to admit, reject, or waitlist the candidate. Harvard Facts ¶ 80. In both the subcommittee and full committee meetings, each admissions officer has one vote, and a majority vote controls whether a student is admitted, waitlisted, or rejected. Harvard Facts ¶ 81; SFFA Facts ¶ 128. The subcommittee and full committee members can potentially consider race as a factor in deciding which candidates to recommend or vote to admit, deny, or waitlist. SFFA Facts ¶¶ 236, 250; Harvard Response ¶¶ 251, 264; [ECF No. 419-1 at 52í53].
Near the end of the full committee meetings, Dean Fitzsimmons and Director McGrath confirm the final target number of admitted students and determine whether any applicants must be “lopped” or removed from the class of students on the “admit” list to reach that target. SFFA Facts ¶ 134; Harvard Response ¶ 134.
8 The parties dispute whether every application is discussed at the full committee meetings or only those that the subcommittees recommend for admission or that are otherwise competitive. See SFFA Facts ¶¶ 125í26; Harvard Response ¶¶ 125í26. 9 Prior to beginning the full committee process, Dean Fitzsimmons and Director McGrath receive a document referred to as a “one-pager” that contains statistics and information about the to-be admitted class and the prior year’s admitted class, including information about gender, geographic region, expected concentration, financial aid, citizenship, race, and other characteristics. SFFA Facts ¶¶ 130, 239; Harvard Response ¶¶ 130, 239. The parties dispute the extent to which one-pagers are used in the admissions process.
9

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3. Post-Admission Review After the admissions decisions are made, Harvard undertakes certain recruiting efforts to encourage admitted students to attend Harvard, including through the Visitas Program which allows admitted students to visit the campus and learn about Harvard. SFFA Facts ¶¶ 138í139; Harvard Facts ¶ 142. Admitted students have until May 1 to accept their offers of admission. SFFA Facts ¶ 140. If there are spaces available in the incoming class after May 1, the full admissions committee meets to fill the remaining spots with applicants from the waitlist. SFFA Facts ¶ 141. Harvard also offers some applicants deferred admission for the following class year. SFFA Facts ¶¶ 145í146; Harvard Response ¶¶ 145í146. D. Harvard’s Stated Mission and Pursuit of Diversity Harvard states that its mission “is to educate the citizens and citizen-leaders for our society . . . through . . . the transformative power of a liberal arts and sciences education,” and believes that “[t]hrough a diverse living environment, where students live with people who are studying different topics, who come from different walks of life and have evolving identities, intellectual transformation is deepened and conditions for social transformation are created.” Harvard Facts ¶¶ 82í83. “From this [Harvard] hope[s] that students will begin to fashion their lives by gaining a sense of what they want to do with their gifts and talents, assessing their values and interests, and learning how they can best serve the world.” Harvard Facts ¶ 83. According to Harvard, to achieve its educational mission, it “seeks to admit a class with diverse socioeconomic, geographic, and racial backgrounds; a broad range of academic, intellectual, and extracurricular interests and talents; and a variety of different life experiences that include overcoming hardship, engaging in public service, and much more.” Harvard Facts ¶¶ 84í85. In
10

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1996, Harvard’s then-President, Neil Rudenstine, drafted a report in which he explained the importance of diversity to Harvard’s mission:
Our commitment to excellence also means that we will seek out—in all corners of the nation, and indeed the world—a diversity of talented and promising students. Such diversity is not an end in itself, or a pleasant but dispensable accessory. It is the substance from which much human learning, understanding, and wisdom derive. It offers one of the most powerful ways of creating the intellectual energy and robustness that lead to greater knowledge, as well as the tolerance and mutual respect that are so essential to the maintenance of our civic society. Harvard Facts ¶ 86; [ECF No. 419-41 at 56]. In 2015, Harvard established a Committee to Study the Importance of Student Body Diversity, chaired by Dean Khurana, which was tasked with examining how “diversity in the student body helps catalyze the intellectual, social, and personal transformations that are central to Harvard’s liberal arts and science education.” Harvard Facts ¶¶ 87í88.10 The committee endorsed former President Rudenstine’s report and “emphatically embrace[d] and reaffirm[ed] [Harvard’s] long-held view that student body diversity—including racial diversity—is essential to [Harvard’s] pedagogical objectives and institutional mission.” Harvard Facts ¶ 89; [ECF No. 419-45 at 3]. The committee’s report described the ways in which student body diversity positively impacts the curriculum, residential and classroom experiences, extra-curricular activities, athletics, and other learning experiences at Harvard. [ECF No. 419-45 at 8í18]. The committee ultimately concluded that student body diversity “enhances the education of all of our students, it prepares them to assume leadership roles in the increasingly pluralistic society into which they will graduate, and it is fundamental to the effective education
10 Harvard also had previously, in June 2014, convened a university-wide committee chaired by James Ryan, Dean of the Graduate School of Education, which was charged with examining the importance of student-body diversity at Harvard and with evaluating whether Harvard could achieve the educational benefits of a diverse student body without considering race (the “Ryan Committee”). Harvard Facts ¶ 145. The Ryan Committee ceased meeting in late 2014. Harvard Facts ¶ 146; SFFA Response ¶ 146.
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of the men and women of Harvard College.” Harvard Facts ¶ 90. The full Harvard Faculty of Arts and Sciences unanimously adopted the committee’s report. Harvard Facts ¶ 91.
In 2017, Harvard established a separate committee to Study Race Neutral Alternatives in Harvard College Admissions, which was chaired by Dean Smith, with Dean Fitzsimmons and Dean Khurana serving as the other committee members (the “Smith Committee”). Harvard Facts ¶ 147. The Smith Committee was charged with evaluating whether race-neutral alternatives are available and workable for achieving the benefits that flow from student body diversity at Harvard. Harvard Facts ¶ 151. In April 2018, after meeting seven times over the course of nine months, Harvard Facts ¶ 154, the Smith Committee produced a report explaining that it considered social science and other literature, the Complaint and the expert reports produced in this litigation, as well as other information collected from several offices of Harvard, in reaching the following conclusions:
(1) If Harvard stopped considering race in the admissions process, the proportion of African American and Latin American students in the admitted class would dramatically decline, notwithstanding all the other efforts that Harvard makes to enroll a diverse class, while the proportion of white students would dramatically increase and the proportion of Asian American students would slightly increase. Harvard Facts ¶¶ 156í57.
(2) The “significant decline in racial diversity that would flow from eliminating the consideration of race in the admissions process would prevent Harvard from achieving its diversity-related educational objectives” because “students in a significantly less diverse class will have diminished opportunities to engage with and learn from classmates who come from widely different backgrounds and circumstances . . . [which] would leave students ill prepared to contribute to and lead in our diverse and interconnected nation and world.” Harvard Facts ¶ 159.
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(3) No combination of race-neutral practices,11 including broader efforts to recruit a
diverse class; increased financial aid; further emphasis on geographic diversity; admitting more
transfer students; eliminating Early Action or deferred admission; affording greater weight to
applicants’ modest socioeconomic background; and ceasing to consider applicants’ test scores,
legacy status, parents’ employment at Harvard, recruited athlete status, or inclusion on the
Dean’s or Director’s interest list,12 would practicably allow Harvard to achieve the educational
benefits of a diverse student body without unacceptably sacrificing other important educational and institutional objectives. Harvard Facts ¶¶ 164í212.
E. Alleged Discrimination against Asian Americans
The following facts are largely in dispute, but warrant discussion to provide a more
complete view of the case. In November 2012, Harvard came under pressure to respond to
allegations of perpetuating an “anti-Asian admissions bias” following the publication of a
magazine article written by a Harvard alumnus, which described anecdotal and statistical
evidence of prejudice against Asian Americans in Harvard’s admissions program. SFFA Facts ¶¶ 348í357. Harvard’s Office of Institutional Research (“OIR”) conducted an analysis of the
11 Harvard currently employs certain race-neutral practices to achieve diversity: (1) mailing materials about Harvard and its financial aid program to certain applicants of modest economic backgrounds; (2) holding recruitment events throughout the United States, including in geographic areas that do not frequently send students to Harvard; (3) maintaining a First Generation program to encourage students who are from the first generation in their families to attend a four-year college to apply to Harvard; (4) implementing an Undergraduate Minority Recruitment Program to encourage a racially diverse applicant pool; (5) offering an entirely need-based financial aid program, and (6) hosting admitted students for the Visitas program which is designed to expose admitted students to life at Harvard. Harvard Facts ¶¶ 127í144. SFFA largely disputes the effectiveness of Harvard’s implementation of these practices. SFFA Response ¶¶ 127í144. 12 Dean Fitzsimmons keeps a list of applicants that may be of interest to Harvard. SFFA Facts ¶¶ 294í295. Although the parties refer to a “Director’s Interest List” that also allegedly identifies candidates of particular interest to Harvard, it is unclear from the record who creates the Director’s List or how that list compares to the Dean’s Interest List. [ECF No. 415-1 at 6].
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article’s allegations of discrimination. SFFA Facts ¶¶ 362í364. In February 2013, the OIR produced a report showing that the admission rate for Asian
Americans was highest in a simulation where the criteria for admission was academics only, and that the admission rate for Asian Americans progressively declined as more variables were added to the simulation, such as extracurricular activities, personal rating, legacy status, recruited athlete status, gender, and race. SFFA Facts ¶¶ 399í421. The OIR found that when adding the consideration of race to the admissions criteria, “the share of Asian American students . . . fall[s] by more than 8 percentage points, representing a 32 percent decrease in their share of the overall class. This . . . represent[s] the largest drop of any racial group.” SFFA Facts ¶ 416. Dean Fitzsimmons and Dean Khurana were apparently presented with the findings in this report but neither of them requested additional research from the OIR or discussed the February 2013 report with anyone else in the Admissions Office. SFFA Facts ¶¶ 427í431, 537í543.
In a second report completed in 2013, the OIR found that non-legacy, non-athlete (“NLNA”) Asian American applicants performed significantly better than NLNA White applicants in SAT scores, the alumni overall rating, and the academic rating, as well as slightly better than NLNA White applicants in the extracurricular rating, and the same as NLNA White applicants in the alumni personal rating, the guidance counselor rating, and teacher ratings. SFFA Facts ¶ 438. The only category in which NLNA White applicants performed significantly better than NLNA Asian American applicants was the personal rating, and the OIR provided no explanation as to why NLNA White applicants received higher personal ratings than NLNA Asian American applicants. SFFA Facts ¶¶ 439í440. The OIR also found that NLNA White applicants were admitted at a higher rate than NLNA Asian American applicants with roughly the same academic scores, and found a negative association between being admitted to Harvard
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and being Asian American, although no similar link was observed with any other racial group. SFFA Facts ¶¶ 442í446, 450í51. Dean Fitzsimmons received this second 2013 report, but again did not request any additional research from the OIR or discuss the report with anyone in the Admissions Office. SFFA Facts ¶¶ 466í471. Dean Fitzsimmons and Dean Khurana were similarly nonresponsive when the OIR presented them with a separate memorandum created in May 2013 that found that being Asian American was negatively associated with the likelihood of admission to Harvard. SFFA Facts ¶¶ 504í509, 513í517, 537í543.
In addition to the 2012 and 2013 OIR documents, SFFA contends that the admissions data produced in this litigation confirms Harvard’s bias against Asian Americans. SFFA Facts ¶¶ 581í82. Consistent with this Court’s orders, Harvard produced applicant-by-applicant admissions data for the Classes of 2014 through 2019, aggregate information on the Classes of 2000 through 2017, and 480 application files and 640 summary sheets from the Classes of 2018 and 2019. SFFA Facts ¶¶ 582í584. In analyzing this data, SFFA’s statistical expert, Professor Arcidiacono, concluded that while Asian American applicants are, as a group, stronger than applicants of other racial backgrounds in the academic and extracurricular ratings, SFFA Facts ¶¶ 595í601, and receive personal ratings from alumni interviewers comparable to White applicants, SFFA Facts ¶ 610, they have the lowest share of applicants receiving better than 3+ on the personal ratings given by admissions officers. SFFA Facts ¶ 609. Further, Asian Americans at every level of academic achievement receive lower personal ratings than applicants of all other racial groups. SFFA Facts ¶ 613. Professor Arcidiacono similarly found bias against Asian American applicants in the overall ratings assigned by admissions officers, SFFA Facts ¶¶ 624í26, and that Asian Americans were ultimately admitted into Harvard at rates lower than any other racial group from the Class of 2000 through the Class of 2019, even though Asian
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Americans had higher test scores than all other racial groups during this period of time. SFFA Facts ¶¶ 630í632. In short, Professor Arcidiacono concludes, based on his analysis, that the assignment of personal ratings and overall ratings is biased against Asian Americans and that all things being equal, an Asian American applicant has a lower chance of admission than a White applicant. SFFA Facts ¶¶ 656í669.
As discussed further below, SFFA’s assertions are allegedly supported by other statistics, documents, and testimonial evidence of Harvard’s discrimination or impermissible consideration of race in admissions. II. PROCEDURAL HISTORY
On November 17, 2014, SFFA filed the operative complaint asserting six causes of action based on Harvard’s alleged violation of Title VI: “Intentional Discrimination against Asian Americans” (Count I); “Racial Balancing” (Count II); “Failure to Use Race Merely as a ‘Plus’ Factor in Admissions Decisions” (Count III); “Failure to Use Race to Merely Fill the Last ‘Few Places’ in the Incoming Freshman Class” (Count IV); “Race-Neutral Alternatives” (Count V); and “Any Use of Race as a Factor in Admissions” (Count VI). [ECF No. 1]. On March 11, 2016, the Court stayed this action pending the Supreme Court’s ruling in Fisher v. University of Texas at Austin, 136 S. Ct. 2198 (2016). [ECF No. 146]. After the Supreme Court issued its ruling on June 23, 2016, Harvard moved to dismiss this case for lack of standing [ECF No. 187] and separately moved for judgment on the pleadings as to Counts IV and VI because those claims were inconsistent with Supreme Court precedent [ECF No. 185]. On June 2, 2017, the Court denied the motion to dismiss [ECF No. 324] but granted judgment on the pleadings for Counts IV and VI [ECF No. 325]. The remaining claims (Counts I, II, III, and V) are the subject of the pending cross-motions for summary judgment.
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III. LEGAL STANDARD
Neither party has suggested that this Court should deviate from the ordinary standard of
review for summary judgment. This is also not a case in which “the parties cross-moved for
summary judgment, yet both agreed that there was no dispute over the basic facts of the case,”
United Paperworkers Int’l Union Local 14, AFL-CIO-CLC v. Int’l Paper Co., 64 F.3d 28, 31 (1st
Cir. 1995), such that the Court may be “entitled to ‘engage in a certain amount of factfinding,
including the drawing of inferences.’” TLT Constr. Corp. v. RI, Inc., 484 F.3d 130, 135 n.6 (1st
Cir. 2007) (quoting United Paperworkers, 64 F.3d at 31). Here, the parties filed summary
judgment motions to resolve the case or to potentially narrow the scope of fact-finding at the
upcoming bench trial. Accordingly, they “have intended to treat summary judgment as a separate
phase,” before “proceed[ing] to a bench trial.” Jewelers Mut. Ins. Co. v. N. Barquet, Inc., 410
F.3d 2, 10 (1st Cir. 2005). As another district court has suitably described the interplay between
the summary judgment and bench trial phases of a case:
In ruling on motions for summary judgment, the Court’s role is limited. “[A]t the summary judgment stage the judge’s function is not . . . to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). “A judge does not sit as a trier of fact when deciding a motion for summary judgment even if the case is scheduled to be heard without a jury.” Med. Inst. Of Minn. v. Nat'l Ass’n of Trade & Technical Schs., 817 F.2d 1310, 1315 (8th Cir. 1987). Furthermore, “even if the facts are undisputed, summary judgment may not be granted where there is disagreement over inferences that can be reasonably be drawn from those facts.” In re Unisys Sav. Plan Litig., 74 F.3d 420, 433 (3rd Cir. 1996).
In contrast, after a bench trial, the Court is required to weigh the evidence and make credibility determinations. In re French, 499 F.3d 345, 359 (4th Cir.2007). Rather than deciding whether a genuine issue of material fact exists, the Court makes findings of fact by evaluating the persuasiveness of conflicting evidence and “decid[ing] which is more likely true.” Kearney v. Standard Ins. Co., 175 F.3d 1084, 1095 (9th Cir. 1999) (en banc).
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F.T.C. v. Ross, No. 08-cv-3233-RDB, 2012 WL 2126533, at *4 (D. Md. June 11, 2012) (quoting Waterkeeper Alliance, Inc. v. Alan & Kristin Hudson Farm, No. 10-cv-487-WMN, 2012 WL 13005672, at *1–2 (D. Md. Mar. 1, 2012)). Under the circumstances here, summary judgment is appropriate “if there is no genuine issue as to any material fact and the undisputed facts show that the moving party is entitled to judgment as a matter of law.” Borges ex rel. S.M.B.W. v. Serrano-Isern, 605 F.3d 1, 4 (1st Cir. 2010) (citing Fed. R. Civ. P. 56(c)(2)). “An issue is ‘genuine’ if the evidence of record permits a rational factfinder to resolve it in favor of either party. A fact is ‘material’ if its existence or nonexistence has the potential to change the outcome of the suit.” Id. at 4–5 (citation omitted). The Court “must view ‘the facts in the light most favorable to the non-moving party, drawing all reasonable inferences in that party’s favor.’” Bienkowski v. Northeastern Univ., 285 F.3d 138, 140 (1st Cir. 2002) (quoting Barbour v. Dynamics Research Corp., 63 F.3d 32, 36 (1st Cir. 1995)). Given that both parties have moved for summary judgment, the Court “consider[s] each motion separately, drawing inferences against each movant in turn.” United Paperworkers, 64 F.3d at 31 n.2 (quoting E.E.O.C. v. Steamship Clerks Union, Local 1066, 48 F.3d 594, 603 n.8 (1st Cir. 1995)). IV. DISCUSSION
A. Subject Matter Jurisdiction On June 2, 2017, the Court denied Harvard’s motion to dismiss for lack of subject matter jurisdiction [ECF No. 324], concluding that SFFA had the associational standing necessary to litigate this action. See Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll. (Harvard Corp.), 261 F. Supp. 3d 99, 111 (D. Mass. 2017). SFFA filed this lawsuit on behalf of its membership which included, among others, applicants and prospective applicants to institutions of higher education, including at least one Asian American student who was denied
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admission to Harvard but intended to apply to transfer there if Harvard stopped using its raceconscious admissions policy (the “Applicant”). Id. at 103. “Following the filing of the Complaint, SFFA’s membership continued to grow and it added additional members, including several that it identifie[d] as ‘Standing Members,’” some of whom were Asian American applicants that were rejected from Harvard.13 Id. at 103 n.4. Based on their affidavits, the Court concluded that these Standing Members had individual standing to sue Harvard, which SFFA was required to demonstrate to establish associational standing. Id. at 109í10. Harvard now reasserts its Article III challenge on the grounds that the individual members on whom SFFA’s standing rests are no longer eligible to transfer to Harvard or lack “any serious interest in doing so.” [ECF No. 418 at 20]. See Gratz v. Bollinger, 539 U.S. 244, 262–63 (2003) (holding that rejected applicant “able and ready” to transfer “has standing to seek prospective relief with respect to the [u]niversity’s continued use of race in undergraduate admissions”).
As SFFA recognizes, Harvard’s motion does not challenge whether SFFA had standing when it initiated this action but whether the case has become moot as SFFA’s Standing Members have arguably become ineligible or disinterested in transferring to Harvard. Mootness is “the doctrine of standing set in a time frame: [t]he requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness).” Arizonans for Official English v. Arizona, 520 U.S. 43, 68 n.22 (1997) (quoting United States Parole Comm’n v. Geraghty, 445 U.S. 388, 397 (1980)). “Mootness usually results when a plaintiff has standing at the beginning of a case, but, due to intervening events, loses one of the
13 Other than the Applicant’s father, the Applicant was the only Standing Member at the time that the Complaint was filed. Harvard Facts ¶ 258; SFFA Response ¶ 258. As the Court previously stated, “the Court does not address the issue of whether prospective college students, who have not yet applied, or the parents of applicants have standing to sue.” Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll. (Harvard Corp.), 261 F. Supp. 3d 99, 110 n.12 (D. Mass. 2017).
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elements of standing during litigation.” WildEarth Guardians v. Pub. Serv. Co. of Colorado, 690 F.3d 1174, 1182 (10th Cir. 2012). “Intervening events must ‘have completely and irrevocably eradicated the effects’ of the parties’ conduct in order for a case to be deemed moot.” Town of Barnstable v. O’Connor, 786 F.3d 130, 142 (1st Cir. 2015) (quoting Cnty. of Los Angeles v. Davis, 440 U.S. 625, 631 (1979)); see Ramirez v. Sanchez Ramos, 438 F.3d 92, 100 (1st Cir. 2006) (“[I]ntervening events [must] have blotted out the alleged injury and established that the conduct complained of cannot reasonably be expected to recur.”). “The Supreme Court has placed the ‘heavy burden of persuasion’ with respect to mootness on the party advocating for it.” Town of Barnstable, 786 F.3d at 142 (quoting United States v. Concentrated Phosphate Exp. Ass’n, 393 U.S. 199, 203 (1968)).
Harvard asserts, and SFFA does not dispute, that the Applicant is no longer eligible to transfer to Harvard. Harvard nonetheless acknowledges that two Standing Members, who applied and were rejected from Harvard, remain eligible for transfer admission. Harvard nonetheless argues that, based on their deposition testimony, these members have no serious intention of transferring to Harvard. When asked, “Do you intend to apply to transfer . . . to any other college or university,” Standing Member #1 said, “I don’t anticipate that at the moment, no.” [ECF 41915 at 4]. Standing Member #2 was asked a similar question and responded, “I mean . . . this is highly speculative. You never know what the circumstances are” that would make him or her willing to transfer. [ECF No. 419-19 at 5]. Standing Member #2 also stated in a deposition that he or she would consider applying to transfer to Harvard “[i]f it was not a burden.” Id.
These discrete statements, culled from the deposition transcripts, do not satisfy Harvard’s heavy burden. Standing Member #1 also testified that he or she remains “able and ready to transfer to Harvard were it to cease the use of race or ethnicity as an admissions preference and
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to cease its intentional discrimination against Asian Americans.” [ECF No. 454-14 at 5–6]. That member explained, “if Harvard were to stop using its use of race and ethnicity in admissions, I would think my chances of being admitted had risen enough, because of that change, that I would apply again for transfer to see if I could get in under the new system.” Id. at 6. The testimony that Standing Member #1 did not anticipate transferring from his or her current enrollment “at the moment,” while Harvard maintains its race-conscious admissions policy, presents no inconsistency with being able and ready to transfer if Harvard’s admissions policy were to be materially revised.
Standing Member #2 similarly testified, “I’m able and ready to apply to transfer [to Harvard], were it to cease the use of race,” and further explained that “were [Harvard] to cease the use of race or ethnicity, I think those chances [of admission] would be improved and it would be worth the effort to apply for a transfer at that point.” [ECF No. 454-15 at 5–6]. The testimony that he or she would be willing to transfer to Harvard “[i]f it was not a burden” and might depend on circumstances that are “highly speculative” at this point, does not adequately show that this student does not seriously intend to transfer. After noting the speculative nature of the question about his or her willingness to transfer, Standing Member #2 responded “Yes” when asked “Do you think you would apply to transfer to Harvard?” [ECF No. 419-19 at 5].
Accordingly, Harvard has not established that the case has become moot based on the Standing Members’ alleged disinterest in transferring. Harvard’s other challenges—(1) that SFFA amended its bylaws after filing this lawsuit to enlarge the board of directors and allow its membership to fill just one seat; (2) that only a fraction of SFFA’s members pay dues in comparison to the substantial number of unidentified donors that make contributions; and (3) that SFFA’s founder controls the organization’s daily operations—were considered at the motion to
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dismiss stage and ultimately deemed insufficient to undermine SFFA’s associational standing
under the circumstances.14 Harvard has not presented any evidence that warrants reconsideration
of the Court’s prior conclusion that this case is not a situation “in which the adequacy of an
organization’s representativeness is so seriously in doubt” that the Court should consider
additional criteria to evaluate associational standing. Students for Fair Admissions, Inc., 261 F.
Supp. 3d at 110. Therefore, Harvard’s motion for summary judgment for lack of subject matter
jurisdiction is denied.15
B. SFFA’s Claims
SFFA’s remaining claims challenge several aspects of Harvard’s race-conscious
admissions program that allegedly violate Title VI and Supreme Court precedent on the
consideration of race in the higher education admissions process. Title VI states that “[n]o person
in the United States shall, on the ground of race, color, or national origin, be excluded from
participation in, be denied the benefits of, or be subjected to discrimination under any program or
activity receiving Federal financial assistance.” 42 U.S.C. § 2000d. “The statute allows a private
14 Harvard also adds here that the Standing Members “have not attended any SFFA meetings and refused on counsel’s instructions to testify about whether they have voted in any SFFA election.” [ECF No. 418 at 18]. Even assuming that these assertions were accurate, they do not demonstrate that SFFA fails to adequately represent its membership or that SFFA members do not participate in the organization. As the Court stated in its prior order, the Standing Members’ declarations showed “that SFFA leadership communicates with members about this litigation and that the Standing Members have given input concerning the case.” Students for Fair Admissions, Inc., 261 F. Supp. 3d at 111. For example, Standing Member #1 testified that he or she participated in a telephone conference to which all SFFA members were invited in December 2016 and that SFFA has thoroughly answered Standing Member #1’s questions about the case and afforded Standing Member #1 the opportunity to have input and provide direction concerning this litigation. [ECF No. 454-14 at 7í8]. 15 The Court need not address at this time the question of whether the seven new Standing Members identified by SFFA have standing. SFFA may renew its argument at trial, should Harvard raise a meritorious jurisdictional challenge to Standing Members #1 and #2. The Court might also consider under such circumstances whether an exception to mootness applies if the alleged wrongful conduct is reasonably expected to recur.
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plaintiff to obtain both injunctive relief and damages when intentionally discriminated against by
a federal-funds recipient on account of race, color, or national origin.” Branson v. St. Elizabeth
Sch. of Nursing, No. 15-cv-87-TLS, 2017 WL 2418396, at *3 (N.D. Ind. June 5, 2017) (citing
Alexander v. Sandoval, 532 U.S. 275, 280 (2001)). Harvard does not dispute that it receives federal funds and is subject to Title VI.16 Harvard Response ¶ 9. In the context of Harvard’s
undergraduate admissions program, “because racial characteristics so seldom provide a relevant
basis for disparate treatment, . . . [r]ace may not be considered [by a university] unless the
admissions process can withstand strict scrutiny.” Fisher v. Univ. of Texas at Austin, 136 S. Ct.
2198, 2207–08 (2016) (“Fisher II”) (quoting Fisher v. Univ. of Texas at Austin, 570 U.S. 297,
309 (2013) (“Fisher I”)). “Strict scrutiny requires the university to demonstrate with clarity that
its ‘purpose or interest is both constitutionally permissible and substantial, and that its use of the
classification is necessary . . . to the accomplishment of its purpose.’” Id. (quoting Fisher I, 570
U.S. at 309).
1. Count I: Intentional Discrimination
To state a claim for intentional discrimination under Title VI, the plaintiff “must
demonstrate, inter alia, that the defendant discriminated on the basis of race, the discrimination
16 Harvard notes that the Supreme Court has only addressed race-conscious admissions policies of public universities, and suggests that there are “good reasons to think that” the applicable Supreme Court precedent does not apply in the same manner to private universities like Harvard that are subject to Title VI. Because Harvard does not identify any specific reasons for distinguishing public universities from federally-funded private universities, or explain how the analytical framework would differ for private versus public litigants, the Court at this stage places Harvard on equal footing with a public university in applying Grutter and its progeny. See Grutter, 539 U.S. at 343 (“[T]he Equal Protection Clause does not prohibit the Law School’s narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body. Consequently, petitioner’s statutory claims based on Title VI . . . also fail.”); id. (“Title VI . . . proscribe[s] only those racial classifications that would violate the Equal Protection Clause or the Fifth Amendment” (citing Regents of Univ. of California v. Bakke, 438 U.S. 265, 287 (1978))).
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was intentional, and the discrimination was a substantial or motivating factor for the defendant’s actions.” Goodman v. Bowdoin Coll., 380 F.3d 33, 43 (1st Cir. 2004) (citing Tolbert v. Queens Coll., 242 F.3d 58, 69 (2d Cir. 2001)); see Scaggs v. New York Dep’t of Educ., No. 06-cv-0799JFB-VVP, 2007 WL 1456221, at *11 (E.D.N.Y. May 16, 2007) (same). In reviewing a uniformly applied facially neutral policy, “[d]etermining whether invidious discriminatory purpose was a motivating factor [in its adoption] demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available.” Anderson ex rel. Dowd v. City of Boston, 375 F.3d 71, 83 (1st Cir. 2004) (quoting Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1977)). Here, SFFA and Harvard’s cross-motions for summary judgment on Count I are essentially mirror images of one another. Each party relies on its own expert reports to show the presence or absence of a negative effect of being Asian American on the likelihood of admission, highlights the purported flaws of its opponent’s statistical analysis, and claims that there is substantial—or zero—documentary and testimonial evidence of discriminatory intent.
Under the circumstances of this case, the parties’ heavy reliance on statistical evidence and expert testimony precludes summary judgment on Count I. Each nonmoving party at this stage is “entitled ‘to have the credibility of [its] evidence as forecast assumed, [its] version of all that is in [genuine] dispute accepted, [and] all internal conflicts in [the evidence] resolved favorably to [it] . . . .’” Blanchard v. Peerless Ins. Co., 958 F.2d 483, 489 (1st Cir. 1992) (quoting Rodriguez–Garcia v. Davila, 904 F.2d 90, 94 (1st Cir.1990)). It is likewise “not the Court’s role on summary judgment to assess the relative credibility of expert testimony.” Tamposi v. Denby, 136 F. Supp. 3d 77, 128 (D. Mass. 2015). “At summary judgment, . . . courts normally assume that the trier of fact would credit the expert testimony proffered by the nonmovant.” Den Norske Bank AS v. First Nat’l Bank of Bos., 75 F.3d 49, 58 (1st Cir. 1996). “Even assuming, arguendo,
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that this Court were to conclude that ‘the factual underpinning of [either party’s] expert’s opinion [was] weak,’” the challenges by SFFA and Harvard affect “the weight and credibility of the testimony” to be evaluated at trial when the Court assumes its fact-finding role. Pac. Indem. Co. v. Dalla Pola, 65 F. Supp. 3d 296, 304 (D. Mass. 2014) (quoting Milward v. Acuity Specialty Prods. Group, Inc., 639 F.3d 11, 22 (1st Cir.2011)); see Casas Office Machines, Inc. v. Mita Copystar Am., Inc., 42 F.3d 668, 686 (1st Cir. 1994) (“[w]eighing the evidence” and “assessing the credibility of the experts” are tasks “that must be left to the trier of fact” after summary judgment); S. Shore Hellenic Church, Inc. v. Artech Church Interiors, Inc., 183 F. Supp. 3d 197, 225 (D. Mass. 2016) (same).
Although competing expert reports alone do not necessarily preclude summary judgment, where, as here, SFFA and Harvard’s statistical experts each present more than “merely conclusory allegations,” City of Chanute, Kan. v. Williams Nat. Gas Co., 743 F. Supp. 1437, 1445 (D. Kan. 1990), aff’d, 955 F.2d 641 (10th Cir. 1992), and the “indisputable record facts” at this stage do not sufficiently “contradict or otherwise render [either side’s expert] opinion[s] unreasonable,” summary judgment is not appropriate. Brooke Grp. Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209, 242 (1993). On behalf of SFFA, Professor Arcidiacono concluded that the Admissions Office gives lower personal and overall ratings to Asian Americans than to any other racial group, despite finding that Asian American applicants are comparatively strong in the academic and extracurricular ratings, and that teachers, guidance counselors, and alumni interviewers score Asian American applicants roughly the same as White applicants on the personal and overall ratings. SFFA Facts ¶¶ 595í616, 624í628. He further found that Asian American applicants were admitted to Harvard at lower rates than other racial groups, and that among applicants with the same overall rating, Asian Americans were the least likely to be
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admitted. SFFA Facts ¶¶ 629í647. Dr. Card, on behalf of Harvard, reviewed the same data but found no negative effect of being Asian American on the likelihood of admission to Harvard, and even noted that in certain years and geographic areas, being Asian American had a positive effect on the likelihood of admission. Harvard Facts ¶¶ 216í220. To the extent that Asian Americans are admitted at lower rates or receive lower ratings than White applicants, SFFA attributes the disparity to discrimination while Harvard points to, among other things, Dr. Card’s determination that the applications of Asian Americans were “slightly less strong than those submitted by White applicants across a range of observable non-academic measures” and other “statistically unobserved factors.” [ECF No. 435 at 10, 17].
These contradictory conclusions are at least in part the result of the experts’ divergent modeling choices, including as to (1) whether to pool data across admissions cycles (Harvard Facts and SFFA Response ¶¶ 233í34); (2) whether to exclude from the regression analysis the personal rating (Harvard Facts and SFFA Response ¶¶ 230í232), the applicant’s intended career (Harvard Facts and SFFA Response ¶¶ 237í38), and the occupation of an applicant’s parents (Harvard Facts and SFFA Response ¶¶ 235í36); and (3) whether to include in the data pool recruited athletes, legacy applicants, children of Harvard faculty and staff members, and applicants on the Dean or Director’s Interest Lists (SFFA Facts and Harvard Response ¶¶ 750í58). The parties also disagree over the probative value of statistically comparing Asian American applicants to applicants of other races with the same or similar academic credentials, and whether the personal and overall ratings from the Admissions Office can be meaningfully compared against the corresponding scores assigned by alumni interviewers, teachers, and guidance counselors. The credibility of the expert witnesses in making these critical modeling and analytical choices is best evaluated at the upcoming bench trial. See also Friends of
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Merrymeeting Bay v. NextEra Energy Res., LLC, No. 11-cv-38-GZS, 2013 WL 149641, at *1 (D. Me. Jan. 14, 2013) (“At this point, the Court believes that Defendants’ arguments are best addressed at trial with question-specific objections and ‘the adversary process’ of ‘competing expert testimony and active cross-examination.’” (quoting Ruiz-Troche v. Pepsi Cola of P.R. Bottling Co., 161 F.3d 77, 85 (1st Cir. 1998))).
For substantially the same reasons, the OIR reports do not justify granting summary judgment in favor of SFFA. SFFA contends that in 2013, Harvard’s in-house research division evaluated the treatment of Asian Americans in Harvard’s admissions program and reached conclusions that were consistent with Professor Arcidiacono’s analysis. SFFA Facts ¶¶ 389–390, 399–465, 492í572. Moreover, SFFA argues that Dean Fitzsimmons and Dean Khurana received the OIR’s reports but took no steps to further investigate the evidence of an admissions bias against Asian Americans. SFFA Facts ¶¶ 426í431, 468í471, 525í528. Determining the appropriate weight to attribute to the OIR’s findings requires the consideration of opposing expert testimony. See [ECF No. 435 at 23] (asserting that Dr. Card’s “far more comprehensive, informed, and reliable work” contradicts and subverts the conclusions reached by the OIR). Moreover, while SFFA claims that Harvard’s inaction in response to the OIR reports suggests an intent to “bury” the reports and “kill” an internal investigation, Harvard presents evidence that no further investigation took place because Harvard recognized that the OIR reports were preliminary and incomplete and were therefore insufficient to warrant additional inquiry. Determining whether Harvard’s explanation for its response to the OIR reports is credible, or as SFFA submits, an implausible post-hoc justification in light of this lawsuit, requires the Court to assess the credibility of Harvard’s witnesses and to consider expert testimony regarding the OIR reports. Drawing all inferences in favor of each non-moving party, there are disputed material
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facts based on Harvard’s fact witnesses, the statistical evidence, and the expert opinions presented by each side that cannot be resolved before trial.17
SFFA’s remaining non-statistical, non-expert evidence of intentional discrimination, standing alone, is insufficient to warrant summary judgment. This evidence, which includes some discrete comments in the summary sheets (SFFA Facts ¶¶ 678í686), the fact that admissions officers more often positively characterized the racial identity of African American and Latin American applicants than that of Asian American applicants (SFFA Facts ¶¶ 691í692), and Harvard’s response to the complaints or comments of one OIR employee (SFFA Facts ¶ 333), a few alumni interviewers (SFFA Facts ¶¶ 325, 331), a high-school student (SFFA Facts ¶¶ 335í336), and one Harvard alumnus who made racist statements in a letter to former President Faust (SFFA Facts ¶¶ 341í42), does not constitute sufficient evidence of discriminatory intent for summary judgment. To credit SFFA’s view that Harvard’s inaction in response to complaints from its employees or alumni, many of which did not directly relate to any admission decision, would require drawing premature inferences in SFFA’s favor. Cf. Gonzalez v. El Dia, Inc., 304 F.3d 63, 69 (1st Cir. 2002) (“In the first place, ‘stray workplace remarks,’ as well as statements made either by nondecisionmakers or by decisionmakers not involved in the decisional process, normally are insufficient, standing alone, to establish either pretext or the requisite discriminatory animus.”); Straughn v. Delta Air Lines, Inc., 250 F.3d 23, 36 (1st Cir. 2001) (probative value of “stray remarks” is circumscribed “if they were made in a situation temporally remote from the date of the employment decision”); Fernandes v. Costa Bros. Masonry, Inc., 199 F.3d 572, 583 (1st Cir. 1999) (“statement that plausibly can be
17 Professor Arcidiacono’s analysis of the frequency of the use of “Standard Strong” to characterize Asian American applicants also requires consideration of the competing expert testimony at trial. SFFA Facts ¶¶ 678í686.
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interpreted two different ways . . . one discriminatory and the other benign” is not direct evidence of discriminatory animus), abrogated on other grounds by Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003). Harvard presents evidence that its admissions officers’ comments on the summary sheets about Asian American applicants were on par with comments made about applicants of other races, and that the summary sheets often contained remarks that referred positively to an applicant’s identity as Asian American. Moreover, as Harvard notes, the Admissions Office procedures and training documents, and the deposition testimony of its current and former employees, do not appear to suggest any intent to discriminate against Asian Americans.
In sum, whether SFFA may prove its intentional discrimination claim requires a close review of the conflicting expert testimony, the available documents, and the testimony of the Admissions Office employees in the context of a trial. See Equal Employment Opportunity Comm'n v. Texas Roadhouse, Inc., 215 F. Supp. 3d 140, 172 (D. Mass. 2016) (whether fact finder finds one party’s expert more persuasive than an opposing expert “is a question for trial and not for summary judgment”); Peng-Fei Chang v. Univ. of Rhode Island, 554 F. Supp. 1203, 1206 (D.R.I. 1983) (“The Court would be remiss in granting defendants’ motion for summary judgment based solely on [their expert’s] statistical indices (even in the absence of [the opposing expert’s] critique thereof) without subjecting those findings to the in-depth scrutiny given other types of evidence at a trial on the merits.”). Therefore, the cross-motions for summary judgment are denied on Count I.18
18 SFFA presents evidence of Harvard’s discrimination against Jewish students in the early 1920s, almost a century before this case was filed. At best, the historical background of the admissions policy at issue “is one evidentiary source” of intent, and this Court has already ruled in the context of the parties’ discovery disputes that such evidence has limited relevance, if any, to the claims at issue. Vill. of Arlington Heights, 429 U.S. at 267. SFFA recognizes that such evidence from the 1920s “is more distant than in many cases in which history is used as an
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2. Count II: Racial Balancing SFFA next contends that Harvard impermissibly caps the number of Asian Americans in an admitted class. To maintain a permissible race-conscious admissions policy, Harvard may not “impose a fixed quota,” Fisher II, 136 S. Ct. at 2208, or otherwise “‘assure within its student body some specified percentage of a particular group merely because of its race or ethnic origin,’” as such a practice “would amount to outright racial balancing, which is patently unconstitutional.” Grutter, 539 U.S. at 329 (quoting Bakke, 438 U.S. at 307). “Racial balancing is not transformed from ‘patently unconstitutional’ to a compelling state interest simply by relabeling it ‘racial diversity.’” Fisher I, 570 U.S. at 311 (quoting Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 732 (2007)). SFFA and Harvard again present plausible but conflicting interpretations of the admissions data and testimonial evidence concerning whether Harvard uses a quota system. According to SFFA, Harvard tracks the representation of racial groups, and uses the statistics from the prior year’s class as a benchmark against which the to-be admitted class is matched. During the full committee phase of the admissions process, “one-pagers” are distributed to Dean Fitzsimmons and Director McGrath to make them aware of the present representation of various racial groups as compared to the prior year. Harvard allegedly then reconsiders applications from particular racial groups, if necessary to align the current class demographics with those of the prior year. The admissions committee also allegedly takes into account whether a student is from
Arlington Heights factor.” [ECF No. 413 at 31]. In accordance with its prior rulings, the Court is unlikely to admit evidence of Harvard’s admissions policy from the 1920s, but will reserve a final evidentiary ruling for trial. [See ECF No. 547]. The Court would also consider taking judicial notice of past discrimination if the parties did not object, or would accept a joint stipulation to this effect.
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a racial group that is currently underrepresented in the prospective class when trimming the number of offers of admission during the lopping process.19
Harvard disclaims SFFA’s theory as a skewed portrayal of its admissions process. According to Harvard, what SFFA calls racial balancing is better understood as an ordinary weighing of offers of admission against available beds, with an eye toward diversity. Harvard explains that it reviews demographic information from prior classes to estimate the likely yield of acceptances from those it offers admission, which amounts at most to paying “some attention to numbers” as the Supreme Court found permissible in Grutter, 539 U.S. at 336. The one-pagers break down the number of applicants by race, but also by “gender, geography, intended concentration, whether the applicant is a recruited athlete, whether the applicant’s parent attended Harvard, whether Harvard waived the applicant’s application fee, whether the applicant was flagged as socioeconomically ‘disadvantaged’ by Harvard’s admissions staff, whether the applicant applied for financial aid, citizenship, [and] permanent residency.” [ECF No. 435 at 33]. Rather than using the one-pagers to precisely match the racial demographics year after year, Harvard contends that the one-pagers are used “to ascertain whether there are any significant trends worth noting and to make sure the Admissions Committee is not overlooking strong candidates.” Id. The lopping process is similarly a curative measure applied when, based on the likely yield rate and the available spaces in the admitted class, Harvard has an overabundance of qualified applicants to whom it has tentatively decided to offer admission.
19 SFFA accuses of Harvard of engaging in racial balancing through its alleged practice of purchasing potential applicant information based on PSAT scores and GPAs that differ by race and its participation in the conference of the Association of Black Admissions and Financial Aid Officers of the Ivy League and Sister Schools. Although the Court may allow SFFA to present evidence to support these assertions at trial to some extent, there appears to be little to no connection between the allegations of racial balancing and Harvard’s purchasing of “potential applicant information” or its mere attendance and participation in the conference.
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With respect to the admissions data, SFFA shows that for the classes of 2014, 2015, 2016, and 2017, the percentage of the admitted class has remained at least somewhat consistent for each racial group: Asian Americans comprised 18% of the share of the Class of 2014, 18% of the Class of 2015, 21% of the Class 2016, and 20% of the Class of 2017. SFFA Facts ¶ 699. A similar level of consistency was shown for other racial groups with White students comprising between 48% and 53% of the class, Native Americans between 2% and 3%, and Hispanic Americans and African Americans each between 10% and 12% over that same time period. SFFA Facts ¶ 699. Harvard does not dispute these percentages but asserts that they actually demonstrate significant fluctuations in the admissions of various racial groups.20 In Harvard’s view, the increase in the Asian American share of the class from 18% to 20% is a substantial “11% increase.” [ECF No. 435 at 30].
The resolution of Count II depends in part on the credibility of Harvard’s admissions officers and leadership as to whether its admissions procedures, including lopping, reviewing one-pagers, and setting target numbers, were intended to balance the racial demographics year after year, or to merely pay “some attention to numbers” in enrolling a diverse student body. The class share of each racial group has not been so plainly consistent or varied over time that the Court can conclude that the numbers alone establish or refute the presence of a quota. See, e.g., Grutter, 539 U.S. at 336 (noting that variation of 13.5% to 20.1% in the class shares for African American, Latin, and Native American students was “a range inconsistent with a quota”); Smith v. Univ. of Washington, 392 F.3d 367, 375 (9th Cir. 2004) (percentage of minorities varying
20 SFFA also highlights Professor Arcidiacono’s conclusion that Harvard “maintained a floor on the admission rate for single-race African Americans in the classes of 2017, 2018, and 2019,” in which the admissions rate for single-race African Americans was “virtually identical” to the admission rate of all other domestic applicants. Harvard meanwhile notes that Dr. Card considered these findings to be unremarkable. The experts may address the significance of the alleged floor at trial.
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each year from a high of 38.5% of admittees and 43.3% of enrollees to a low of 24.7% of admittees and 24.4% of enrollees was “inconsistent with the existence of a quota”). Given the material factual disputes and the need to make certain credibility determinations, the crossmotions for summary judgment on Count II are denied.
3. Count III: Race as a “Plus” Factor SFFA moves for summary judgment on Count III on the grounds that Harvard is (1) not using its race-conscious admissions policy for the specific purpose of achieving a “critical mass” of underrepresented minority students and (2) considering race as more than a mere “plus” factor when making admissions decisions. The Supreme Court has clarified that “‘the decision to pursue ‘the educational benefits that flow from student body diversity’ . . . is, in substantial measure, an academic judgment to which some, but not complete, judicial deference [to the university] is proper.’” Fisher II, 136 S. Ct. at 2208 (quoting Fisher I, 570 U.S. at 310). Once a university gives “‘a reasoned, principled explanation’ for its decision” to pursue the educational benefits that flow from student body diversity, “deference must be given ‘to the [u]niversity’s conclusion, based on its experience and expertise, that a diverse student body would serve its educational goals.’” Id. (quoting Fisher I, 570 U.S. at 310-11). As discussed further below, the deference owed to the university’s decision to pursue the educational benefits of a diverse student body does not carry over when the Court evaluates whether the use of race in pursuit of such benefits is narrowly tailored to pass strict scrutiny. SFFA argues that Harvard’s admissions program fails the test of strict scrutiny because Harvard does not expressly tailor its pursuit of the educational benefits that flow from a diverse student body to the idea of reaching a “critical mass,” a term that was used in the University of Michigan Law School’s admission policy at issue in Grutter and in the University of Texas at
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Austin’s policy at issue in Fisher. SFFA notes that “[t]he words ‘critical mass’ never even appear in Harvard’s memorandum or statement of facts,” [ECF No. 449 at 31], and that “Harvard leadership has never heard the term critical mass used in the context of admissions,” [ECF No. 413 at 46]. Because Harvard fails to consider race specifically in pursuit of reaching a “critical mass,” SFFA argues that its decision to pursue student body diversity is not well reasoned.
Contrary to SFFA’s claim that the “Supreme Court has held that critical mass is the only interest compelling enough to permit the use of race,” [ECF No. 413 at 46], the Fisher II court explained that the interest that justifies consideration of race in admissions “is not an interest in enrolling a certain number of minority students,” but rather a broader interest in “obtaining ‘the educational benefits that flow from student body diversity.’” Fisher II, 136 S. Ct. at 2210 (quoting Fisher I, 570 U.S. at 310). “[E]nrolling a diverse student body ‘promotes cross-racial understanding, helps to break down racial stereotypes, and enables students to better understand persons of different races.’” Id. (quoting Grutter, 539 U.S. at 330). “Equally important, ‘student body diversity promotes learning outcomes, and better prepares students for an increasingly diverse workforce and society.’” Id. (quoting Grutter, 539 U.S. at 330). Although “[i]ncreasing minority enrollment may be instrumental to these educational benefits, . . . it is not . . . a goal that can or should be reduced to pure numbers.” Id. at 2210. “Critical mass” was a term used in the specific policies at issue in Grutter and Fisher, but one that the Supreme Court left undefined. See Grutter v. Bollinger, 137 F. Supp. 2d 821, 828 (E.D. Mich. 2001), rev’d, 288 F.3d 732 (6th Cir. 2002), aff’d, 539 U.S. 306 (2003); Grutter, 539 U.S. at 316; Fisher I, 570 U.S. at 301; Fisher II, 136 S. Ct. at 2211; see also Fisher II, 136 S. Ct. at 2216 (Alito, J. dissenting) (noting that University of Texas at Austin “never explained what this term [critical mass] means” and that the term “remains undefined”). The Supreme Court has not imbued the phrase “critical mass” with
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any special force or meaning that would make it essential to the survival of a university’s raceconscious admissions policy under strict scrutiny, and this Court declines to do so here.21
SFFA also contends that because Harvard is not pursuing a “critical mass,” its admissions
policy will be used in perpetuity in violation of the Supreme Court’s expectation that at some
point in time “‘use of racial preferences will no longer be necessary to further the interest’ in
diversity.” Grutter, 539 U.S. at 343. The Supreme Court has not held that a “critical mass” or any
specific enrollment number is what obviates the need for a university to consider race. Although
Harvard “must continually reassess its need for race-conscious review” and “scrutinize the
fairness of its admissions program; . . . assess whether changing demographics have undermined
the need for a race-conscious policy; and . . . identify the effects, both positive and negative, of
the affirmative-action measures it deems necessary,” as part of its “ongoing obligation to engage
in constant deliberation and continued reflection regarding its admissions policies,” there is no
requirement that the consideration of race be eliminated within a specific time frame. Fisher II,
136 S. Ct. at 2212, 2214–15. Here, Harvard’s Committee to Study Race-Neutral Alternatives in
Harvard College Admissions recommended reevaluating the need to consider race in five years.
Harvard’s lack of express focus on achieving a “critical mass” does not mean that it will not
21 SFFA also asserts that Harvard has taken “irreconcilable” positions in claiming that it (1) considers race on a case-by-case basis and targets “no specific number of students” of any racial or ethnic background, but (2) must use race in its admissions policy to avoid “a significant decline in African-American and Hispanic enrollment.” [ECF No. 449 at 33]. It is possible, however, to seek to enroll a diverse student body without the use of specific target numbers and in compliance with Grutter and its progeny. As the Supreme Court explained in Fisher II, 136 S. Ct. at 2210, “since the [u]niversity is prohibited from seeking a particular number or quota of minority students, it cannot be faulted for failing to specify the particular level of minority enrollment at which it believes the educational benefits of diversity will be obtained.” Fisher II, 136 S. Ct. at 2210. Whether Harvard’s consideration of race complies with Grutter and its progeny remains a question for trial, but summary judgment in favor of SFFA is not warranted when, reading the facts in the light most favorable to Harvard, its admissions policy adequately balances the need to avoid using quotas with permissibly seeking to enroll a diverse student body.
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continually assess the need for its race-conscious admissions policy. There is no basis at this stage to find that Harvard does not intend to follow its committee’s recommendation or that Harvard’s conception of the benefits of student body diversity is too amorphous to satisfy strict scrutiny. Accordingly, SFFA’s motion for summary judgment is denied with respect to SFFA’s arguments that Harvard fails to seek a “critical mass” or ignores its continuing obligation to evaluate its admissions policies to satisfy strict scrutiny.
While Harvard’s decision to pursue the educational benefits of student body diversity is entitled to deference, no deference is owed when the Court evaluates “whether the use of race is narrowly tailored to achieve the university’s permissible goals.” Fisher II, 136 S. Ct. at 2208 (citing Fisher I, 570 U.S. at 311). To be narrowly tailored, “[a] university may consider race or ethnicity only as a ‘plus’ in a particular applicant’s file,” while “still ensuring that each candidate ‘compete[s] with all other qualified applicants.’” Grutter, 539 U.S at 334–35 (citations omitted). “In other words, an admissions program must be ‘flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant, and to place them on the same footing for consideration, although not necessarily according them the same weight.’” Id. at 334 (quoting Bakke, 438 U.S. at 317). The university must “ensure that each applicant is evaluated as an individual and not in a way that makes an applicant’s race or ethnicity the defining feature of his or her application. The importance of this individualized consideration in the context of a race-conscious admissions program is paramount.” Grutter, 539 U.S. at 336–37.
Here, deciding the issue of whether Harvard considers race only as a plus factor in its admissions decisions is dependent upon resolving material questions of fact and credibility. Harvard moves for summary judgment based on the consistent testimony of its admissions
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officers and training documents showing that Harvard considers race flexibly along with numerous other factors. Harvard further contends that its expert, Dr. Card, found that “to be admitted to Harvard, applicants must have multiple areas of strength,” and race alone is not a determinative factor. Harvard Facts ¶¶ 121, 122. Dr. Card also concluded that an applicant’s academic, athletic, extracurricular, and personal ratings collectively explain a much larger proportion of the variability in admissions outcomes than race. Harvard Facts ¶¶ 123, 124. According to SFFA, however, Dr. Arcidiacono’s reports and the OIR’s research show that race plays a predominant role in the likelihood of admissions for certain groups of students, that race plays such a decisive role in the admissions chances of Hispanics and African Americans, and that “removing all racial preferences and penalties—treating everyone as though they were white—would raise the number of Asian Americans by [40%].” SFFA Facts ¶¶ 417í18, 448, 737í740. Like the material disputes that preclude summary judgment on Count I, the issue of whether Harvard considers race as a plus factor or more turns on the competing expert testimony regarding Harvard’s admissions data, the accuracy and reliability of the OIR’s research, and the credibility of the testimony of Admissions Office employees regarding the weight attributed to an applicant’s race. The cross-motions for summary judgment are therefore denied on Count III.
4. Count V: Race-Neutral Alternatives SFFA asserts in Count V that Harvard has failed to fulfill its obligation to consider raceneutral alternatives to a race-conscious admissions policy. Strict scrutiny requires that the Court “verify that it is ‘necessary’ for a university to use race to achieve the educational benefits of diversity.” Fisher I, 570 U.S. at 312. “This involves a careful judicial inquiry into whether a university could achieve sufficient diversity without using racial classifications. Although ‘[n]arrow tailoring does not require exhaustion of every conceivable race-neutral alternative,’”
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id. (quoting Grutter, 539 U.S., at 339–340), nor does it require choosing “between maintaining a reputation for excellence or fulfilling a commitment to provide educational opportunities to members of all racial groups,” Grutter, 539 U.S. at 339, “strict scrutiny does require a court to examine with care, and not defer to, a university’s ‘serious, good faith consideration of workable race-neutral alternatives.’” Fisher I, 570 U.S. at 312 (quoting Grutter, 539 U.S., at 339–340). “Consideration by the university is of course necessary, but it is not sufficient to satisfy strict scrutiny: The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity.” Id. If “‘a nonracial approach . . . could promote the substantial interest about as well and at tolerable administrative expense,’ . . . then the university may not consider race.” Id. (citation omitted).
Harvard asserts that it satisfied strict scrutiny through the work of the Smith Committee, which reviewed published social science literature, the Complaint and the expert reports in this case, and “met throughout 2017 and early 2018 to examine the extensive efforts Harvard already undertakes to attract and admit a diverse student body, as well as numerous possible alternatives to considering race in admissions.” [ECF No. 418 at 31]. The Smith Committee unanimously concluded that “at present, no available, workable race-neutral alternatives could promote Harvard’s diversity-related educational objectives as well as Harvard’s current whole-person race-conscious admissions program while also maintaining the standards of excellence that Harvard seeks in its student body.” Harvard Facts ¶ 212. Dr. Card also found that even if Harvard maintained all of its existing race-neutral efforts to achieve diversity—financial aid, recruitment of first generation and economically and racially diverse applicants, and postadmission recruitment efforts—eliminating the consideration of race would cause “the proportion of African-American and Hispanic students in the admitted class [to] decline
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dramatically.” Harvard Facts ¶ 156. According to Dr. Card’s simulated models, if Harvard did not consider race, the proportion of African American students in the Class of 2019 would have dropped from 14% to 6%, and the proportion of Latin American or “Other” students would have dropped from 14% to 9%. Harvard Facts ¶ 156. At the same time, the proportion of White students would have dramatically increased from 40% to 48% of the class, and the proportion of Asian American students would have slightly increased from 24% to 27% of the class. Harvard Facts ¶ 157. The Smith Committee and Dr. Card also found that implementing or eliminating the following race-neutral measures or existing admissions practices—(1) increased preference for modest socioeconomic background; (2) increased recruiting of socioeconomically disadvantaged students; (3) increased financial aid; (4) implementing a place-based preference similar to the top 10% plan in Fisher; (5) increasing the number of transfer students; (6) eliminating the Early Action program; (7) eliminating consideration of legacy; (8) eliminating deferred admission; and (9) eliminating the consideration of test scores—would not sufficiently promote Harvard’s interest in the educational benefits of diversity.
SFFA’s expert, Mr. Kahlenberg, reached the opposite conclusion, finding that Harvard can easily achieve diversity by increasing socioeconomic preferences; increasing financial aid; reducing or eliminating preferences for legacies, donors, and relatives of faculty and staff; adopting policies using geographic diversity; increasing recruitment efforts; increasing community college transfers; and/or eliminating early action. SFFA Facts ¶¶ 858í882.
In addition, SFFA has raised a material issue as to whether Harvard’s efforts to consider race-neutral alternatives have been undertaken in serious good faith, because Harvard apparently did not examine such alternatives until 2014, after Harvard was aware of the imminence of this lawsuit. See Fisher I, 570 U.S. at 312 (“[S]trict scrutiny imposes on the university the ultimate
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burden of demonstrating, before turning to racial classifications, that available, workable race-

neutral alternatives do not suffice.”). Indeed, while Harvard has implemented several race-

neutral alternatives over time, there is little evidence in the record of Harvard formally

evaluating race-neutral alternatives to its race-conscious policy following the issuance of Grutter

until around the time this case was filed.22 In light of Harvard’s recent efforts to consider race-

neutral alternatives, which arguably coincided with the filing of this lawsuit, Harvard’s alleged

past failure to comply with Grutter raises a material dispute as to whether Harvard’s

consideration of race-neutral alternatives was undertaken seriously and in good faith. Given this

material factual dispute, and that the experts have reached plausible but conflicting conclusions

based on simulated models of the effectiveness of numerous race-neutral practices, the cross-

motions for summary judgment are denied on Count V.

V. CONCLUSION

Accordingly, the cross-motions for summary judgment [ECF Nos. 412, 417] are denied

without prejudice. Consistent with this order, the parties may renew their arguments at trial.

SO ORDERED.

September 28, 2018

/s/ Allison D. Burroughs ALLISON D. BURROUGHS U.S. DISTRICT JUDGE

22 This may be of little relevance given that SFFA is seeking prospective relief, but “not seeking to impose independent liability on Harvard for its non-compliance with Grutter between 2003 and 2017.” [ECF No. 510 at 26í27].
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 Case 1:14-cv-14176-ADB Document 672 Filed 09/30/19 Page 1 of 130

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

STUDENTS FOR FAIR ADMISSIONS, INC., *

*

Plaintiff,

*

*

v.

*

*

PRESIDENT AND FELLOWS OF

*

HARVARD COLLEGE (HARVARD

*

CORPORATION),

*

*

Defendant.

*

Civil Action No. 14-cv-14176-ADB

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Case 1:14-cv-14176-ADB Document 672 Filed 09/30/19 Page 2 of 130
Table of Contents
I. INTRODUCTION ....................................................................................................................... 4 II. PROCEDURAL HISTORY ....................................................................................................... 4 III. FINDINGS OF FACT: DIVERSITY, ADMISSIONS PROCESS, AND LITIGATION ........ 6
A. Diversity at Harvard............................................................................................................ 6 1. Harvard’s Interest in Diversity ..................................................................................... 6 2.Admissions Office’s Efforts to Obtain a Diverse Applicant Pool................................ 8
B. The Admissions Process ................................................................................................... 11 1. The Application .......................................................................................................... 12 2. Alumni and Staff Interviews....................................................................................... 13 3. Application Review Process ....................................................................................... 16 i. Admissions Office and Personnel .............................................................. 16 ii. Reading Procedures .................................................................................... 18 iii. Committee Meetings and Admissions Decisions ....................................... 23 4.Harvard’s Use of Race in Admissions........................................................................ 27
C. Prelude to this Lawsuit...................................................................................................... 31 1. The Unz Article .......................................................................................................... 31 2.Analysis by Office of Institutional Research.............................................................. 32 i. Mark Hansen’s Admissions Models........................................................... 32 ii. Low-Income Admissions Models .............................................................. 35 3.The Ryan Committee.................................................................................................. 38 4. The Khurana Committee ............................................................................................ 39 5.The Smith Committee................................................................................................. 40
IV. FINDINGS OF FACT: NON-STATISTICAL EVIDENCE OF DISCRIMINATION.......... 41 A. Sparse Country.................................................................................................................. 41 B. The OCR Report ............................................................................................................... 43 C. More Recent Allegations of Stereotyping and Bias.......................................................... 45
V. FINDINGS OF FACT: STATISTICAL ANALYSIS.............................................................. 50 A. Sources of Statistical Evidence ......................................................................................... 50 B. Admission Rates and Ratings by Race ............................................................................. 53 C. Descriptive Statistics......................................................................................................... 57 1.Professor Card’s Multidimensionality Analysis......................................................... 57 2.Professor Arcidiacono’s Academic Index Decile Analysis........................................ 60
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D. Overview of Logistic Regression Models......................................................................... 62 E. Regression Models of School Support, Profile, and Overall Ratings............................... 67
1. Relationship Between Race and School Support Ratings .......................................... 67 2. Relationship Between Race and Personal Ratings ..................................................... 68 3.Regression Models of the Academic, Extracurricular, and Overall Ratings.............. 73 F. Regression Models of Admissions Outcome .................................................................... 74 G. Absence of Statistical Support for Racial Balancing or Quotas ....................................... 80 VI. FINDINGS OF FACT: RACE-NEUTRAL ALTERNATIVES............................................. 83 A. Eliminating Early Action .................................................................................................. 85 B. ALDC Tips........................................................................................................................ 86 C. Augmenting Recruiting Efforts and Financial Aid ........................................................... 87 D. Increasing Diversity by Admitting More Transfer Students............................................. 88 E. Eliminating Standardized Testing..................................................................................... 88 F. Place-Based Quotas .......................................................................................................... 89 G. SFFA’s Proposed Combinations of Various Race-Neutral Alternatives .......................... 90 VII. CONCLUSIONS OF LAW................................................................................................... 92 A. Overview........................................................................................................................... 92 B. SFFA Has Standing........................................................................................................... 93 C. The Supreme Court and Race-Conscious Admissions ..................................................... 94 D. Harvard’s Admission Program and Strict Scrutiny ........................................................ 102 1. Compelling Interest .................................................................................................. 106 2. Narrowly Tailored .................................................................................................... 107 E. Count II: Harvard Does Not Engage in Racial Balancing ............................................. 112 F. Count III: Harvard Uses Race as a Non-Mechanical Plus Factor................................... 116 G. Count V: No Adequate, Workable, and Sufficient Fully Race-Neutral Alternatives Are Available ...................................................................................................................... 119 H. Count I: Harvard Does Not Intentionally Discriminate .................................................. 122 VIII. CONCLUSION .................................................................................................................. 127
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BURROUGHS, D.J. I. INTRODUCTION
Plaintiff Students for Fair Admissions, Inc. (“SFFA”) alleges that Defendant President and Fellows of Harvard College (“Harvard”) discriminates against Asian American applicants in the undergraduate admissions process to Harvard College in violation of Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d et seq. (“Title VI”).1 Harvard acknowledges that its undergraduate admissions process considers race as one factor among many, but claims that its use of race is consistent with applicable law. II. PROCEDURAL HISTORY
On November 17, 2014, SFFA initiated this lawsuit by filing a complaint that alleged that Harvard violates Title VI by intentionally discriminating against Asian Americans (“Count I”), using racial balancing (“Count II”), failing to use race merely as a “plus” factor in admissions decisions (“Court III”), failing to use race merely to fill the last “few places” in the incoming freshman class (“Count IV”), using race where there are available and workable race-neutral alternatives (“Count V”), and using race as a factor in admissions (“Count VI”). [ECF No. 1 ¶¶ 428–505]. SFFA seeks declaratory judgment, injunctive relief, attorneys’ fees, and costs. Id. at 119. On February 18, 2015, Harvard filed its answer, in which it denied any liability. See [ECF No. 17]. On April 29, 2015, several prospective and then-current Harvard students filed a motion to intervene. [ECF No. 30]. Although the Court denied the motion to intervene, it
1 There is considerable variation in the terminology individuals use to describe their racial and ethnic identities. This opinion uses the terms Hispanic, African American, Asian American, and white to describe the four racial or ethnic identities that account for the majority of applicants to Harvard because those are the terms the parties have used in litigating this case. The term Asian American, as opposed to Asian, is used because SFFA alleges that Harvard discriminates against United States citizens who identify as Asian American. Where “Asian” alone is used, this generally reflects the language used by others in their own analyses which are referred to herein and may include Asian applicants who would not identify as Asian American.
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allowed the students to participate in the action as amici curiae (friends of the court). Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 308 F.R.D. 39, 51–53 (D. Mass.), ECF No. 52, aff’d, 807 F.3d 472 (1st Cir. 2015).
On September 23, 2016, Harvard moved (1) to dismiss the lawsuit for lack of standing and (2) for judgment on the pleadings as to Counts IV and VI. [ECF Nos. 185, 187]. On June 2, 2017, the Court found that SFFA had the associational standing required to pursue this litigation, because it was an organization whose membership included Asian Americans who had applied to Harvard, been denied admission, and were prepared to apply to transfer to Harvard. Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll. (Harvard Corp.), 261 F. Supp. 3d 99, 111 (D. Mass. 2017), ECF No. 324. On the same date, the Court granted Harvard’s motion for judgment on the pleadings and dismissed Counts IV and VI, namely the failure to use race only to fill the last few places in the incoming freshman class and the use of race as a factor in admissions. Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll. (Harvard Corp.), No. 14-CV-14176-ADB, 2017 WL 2407254, at *1 (D. Mass. June 2, 2017), ECF No. 325.2
Following the conclusion of discovery, on June 15, 2018, the parties filed cross motions for summary judgment on the four remaining counts, [ECF Nos. 412, 417], which the Court denied on September 28, 2018. Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 346 F. Supp. 3d 174, 180 (D. Mass. 2018), ECF No. 566. The case proceeded to trial on Counts I (intentional discrimination), II (racial balancing), III (failure to use race merely
2 Although discovery ended on May 1, 2018, [ECF Nos. 363, 364], the Court ordered supplemental document productions during trial when it became apparent that Harvard had modified its admissions procedures to provide admissions officers with more explicit guidance on the use of race despite seemingly contradictory testimony by various witnesses. See [ECF No. 645 at 7:20–19:24].
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as a “plus” factor), and V (race-neutral alternatives), and from October 15 through November 2,
2018, the Court heard testimony from eighteen current and former Harvard employees, four
expert witnesses, and eight current or former Harvard College students who testified as amici
curiae. On February 13, 2019, following the parties’ submissions of proposed findings of fact
and conclusions of law and responses to each other’s respective submissions, see [ECF Nos. 619,
620], the Court heard final closing arguments.
The Court now makes the following findings of fact and conclusions of law in
accordance with Federal Rule of Civil Procedure 52(a).
III. FINDINGS OF FACT: DIVERSITY, ADMISSIONS PROCESS, AND LITIGATION
A. Diversity at Harvard
1. Harvard’s Interest in Diversity
It is somewhat axiomatic at this point that diversity of all sorts, including racial diversity,
is an important aspect of education. See Brown v. Bd. of Educ., 347 U.S. 483 (1954).3 The
3 On October 30, 2018, the Court heard testimony from Dr. Ruth Simmons, the current President of Prairie View A&M University. President Simmons was born in a sharecropper’s shack on a plantation in Grapeland, Texas. She attended primary and secondary school in a completely segregated environment in Houston, and then Dillard University, an African American institution supported by the Methodist Church in New Orleans. President Simmons was selected to spend her junior year of college at Wellesley, where she studied alongside white students in the United States for the first time. After graduating from Dillard University, President Simmons traveled to France, where she studied as a Fulbright Scholar. She then returned to the United States and earned a Ph.D. from Harvard’s Department of Romance Languages and Literatures. President Simmons held positions at Princeton University, Spelman College, and Smith College before becoming President of Brown University. She retired from Brown University after eleven years and returned to Texas, where she worked on nonprofit projects in the Houston area before being persuaded to come out of retirement to serve as the president of Prairie View A&M. President Simmons offered expert testimony on Harvard’s interest in diversity. Her testimony and her life story, perhaps the most cogent and compelling testimony presented at this trial, demonstrate the extraordinary benefits that diversity in education can achieve, for students and institutions alike. See [Oct. 30 Tr. 6:11–70:23].
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evidence at trial was clear that a heterogeneous student body promotes a more robust academic environment with a greater depth and breadth of learning, encourages learning outside the classroom, and creates a richer sense of community. See [Oct. 19 Tr. 185:23–187:24; Oct. 23 Tr. 24:13-20, 31:2–34:11, 59:8–14; Oct. 30 Tr. 27:20–28:8]. The benefits of a diverse student body are also likely to be reflected by the accomplishments of graduates and improved faculty scholarship following exposure to varying perspectives. See [Oct. 30 Tr. 28:9–30:11].
Harvard College’s mission, as articulated in its mission statement, is “to educate the citizens and citizen-leaders for our society” and it seeks to accomplish this “through . . . the transformative power of a liberal arts and sciences education.” [DX109 at 1].4 In aid of realizing its mission, Harvard values and pursues many kinds of diversity within its classes, including different academic interests, belief systems, political views, geographic origins, family circumstances, and racial identities. See [Oct. 17 Tr. 182:17–183:7; Oct. 23 Tr. 24:13–20]. This interest in diversity and the wide-ranging benefits of diversity were echoed by all of the Harvard admissions officers, faculty, students, and alumni that testified at trial. SFFA does not contest the importance of diversity in education, but argues that Harvard’s emphasis on racial diversity is too narrow and that the full benefits of diversity can be better achieved by placing more emphasis on economic diversity. See [ECF No. 620 ¶¶ 216, 231].
Consistent with Harvard’s view of the benefits of diversity in and out of the classroom, Harvard tries to create opportunities for interactions between students from different backgrounds and with different experiences to stimulate both academic and non-academic learning. [Oct. 23 Tr. 39:3–17; Oct. 30 Tr. 25:11–26:6, 27:20–28:8]. As examples, student living assignments, the available extracurricular opportunities, and Harvard’s athletic programs
4 “DX” refers to an exhibit offered by Harvard.
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are all intended to promote a sense of community and encourage exposure to diverse individuals and viewpoints. [Oct. 23 Tr. 39:18–41:23].
Harvard has evaluated and affirmed its interest in diversity on multiple occasions. See [Oct. 17 Tr. 182:4–14]; see, e.g., [PX302; DX26; DX53].5 Most recently, in 2015, Harvard established the Committee to Study the Importance of Student Body Diversity, which was chaired by Dean Rakesh Khurana6 (the “Khurana Committee”). [Oct. 23 Tr. 34:12–22]. The Khurana Committee reached the credible and well-reasoned conclusion that the benefits of diversity at Harvard are “real and profound.” [PX302 at 17]. It endorsed Harvard’s efforts to enroll a diverse student body to “enhance[] the education of [its] students of all races and backgrounds [to] prepare[] them to assume leadership roles in the increasingly pluralistic society into which they will graduate,” achieve the “benefits that flow from [its] students’ exposure to people of different backgrounds, races, and life experiences” by teaching students to engage across differences through immersion in a diverse community, and broaden the perspectives of teachers, to expand the reach of the curriculum and the range of scholarly interests. [PX302 at 1–2, 6]; see also [Oct. 23 Tr. 37:14–38:17]. The Khurana Committee “emphatically embrace[d] and reaffirm[ed] the University’s long-held view that student body diversity – including racial diversity – is essential to [its] pedagogical objectives and institutional mission.” [PX302 at 22].
2. Admissions Office’s Efforts to Obtain a Diverse Applicant Pool Harvard’s Office of Admissions and Financial Aid (the “Admissions Office”) is tasked with deciding which students to accept to the College and which to reject or waitlist. [Oct. 15
5 “PX” refers to an exhibit offered by SFFA. 6 Dean of Harvard College Rakesh Khurana attended SUNY-Binghamton and Cornell University for his undergraduate studies. He received a Ph.D. in organizational behavior from Harvard University. [Oct. 22 Tr. 192:17–193:11].
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Tr. 64:1–70:8]. Deciding which applicants to admit is challenging given the overall talent and size of the applicant pool. For example, there were approximately 35,000 applications for admission to the class of 2019. [Oct. 17 Tr. 184:2–4]. Harvard, targeting a class size of roughly 1,600 students, admitted only about 2,000 of those applicants, based on its expectation that approximately 80% of admitted students would matriculate. [Id. at 184:22–185:11].7 Among the applicants for that class, approximately 2,700 had a perfect verbal SAT score, 3,400 had a perfect math SAT score, and more than 8,000 had perfect GPAs. [Id. at 184:14–21]. Clearly, given the size and strength of its applicant pool, Harvard cannot admit every applicant with exceptional academic credentials. To admit every applicant with a perfect GPA, Harvard would need to expand its class size by approximately 400% and then reject every applicant with an imperfect GPA without regard to their athletic, extracurricular, and other academic achievements, or their life experiences. Because academic excellence is necessary but not alone sufficient for admission to Harvard College, the Admissions Office seeks to attract applicants who are exceptional across multiple dimensions or who demonstrate a truly unusual potential for scholarship through more than just standardized test scores or high school grades. [Id. at 181:12–183:7].
To help attract exceptionally strong and diverse annual applicant pools, Harvard engages in extensive and multifaceted outreach efforts. Each year, roughly 100,000 students make it onto Harvard’s “search list” through data, including test scores, that the college purchases from ACT8 which administers the ACT, and the College Board, which administers the PSAT and the SAT.
7 Harvard admitted 5.8% of applicants to its class of 2017 and 5.7% to its class of 2018. [Oct. 15 Tr. 157:21–25]. 8 The American College Testing Company changed its name to ACT in the 1990s.
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[Oct. 15 Tr. 130:2–131:1; Oct. 17 Tr. 146:2–16]. High school students who make the search list receive a letter that encourages them to consider Harvard and may also receive follow-up communications. See [Oct. 15 Tr. 131:5–134:16; Oct. 17 Tr. 146:3–12; PX55]. Harvard also uses the search list to target students as part of its extensive in-person recruiting efforts, which includes Harvard admissions officers travelling to over 100 locations across the United States to speak with potential applicants and encourage them to consider Harvard. [Oct. 15 Tr. 131:13– 20; Oct. 17 Tr. 146:7–12, 179:8–21]. The search list is also sent to Harvard’s “schools committee,” which is comprised of more than 10,000 alumni who help recruit and interview applicants and help persuade admitted students to attend Harvard. [Oct. 15 Tr. 131:21–132:7].
In addition to recruiting students based largely on test scores, Harvard places particular emphasis on communicating with potential low-income and minority applicants whose academic potential might not be fully reflected in their scores. Since the 1970s, Harvard has recruited minority students, including Asian Americans, through its Undergraduate Minority Recruitment Program (“UMRP”). [Oct. 24 Tr. 95:15–21]. The UMRP writes letters, calls, and sends current Harvard undergraduates to their hometowns to speak with prospective applicants. [Id. at 95:12– 102:3]. The program, led by a full-time director and an assistant director, employs between two and ten Harvard students for most of the year, with twenty-five to thirty students working for the program during its peak season. [Id. at 201:1–204:22].
Despite these efforts, African American and Hispanic applicants remain a relatively modest portion of Harvard’s applicant pool, together accounting for only about 20% of domestic applicants to Harvard each year, even though those groups make up slightly more than 30% of the population of the United States. See [PX623; DX713]; U.S. Census Bureau, QuickFacts, Census.gov, https://www.census.gov/quickfacts/fact/table/US/RHI225218. In contrast, Asian
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American high school students have accounted for approximately 22% of total applicants in recent years, although Asian Americans make up less than 6% of the national population. See [DX713]; U.S. Census Bureau, QuickFacts, Census.gov, https://www.census.gov/quickfacts/fact/table/US/RHI225218.
Harvard’s recruiting efforts also target low-income and first-generation college students irrespective of racial identity through a recruiting program that operates in conjunction with the Harvard Financial Aid Initiative (“HFAI”). Harvard’s financial aid program guarantees full funding of a Harvard education for students from families earning $65,000 or less per year and also caps contributions at 10% of income for families making up to $150,000 per year. [Oct. 24 Tr. 102:10–104:19; PX316 at 6]. Harvard, through the HFAI recruitment program, employs students who return to their hometowns and visit high schools to talk about the affordability of Harvard and other colleges with need-blind admissions programs. [Oct. 24 Tr. 144:1–22]. Today, more than half of Harvard students receive need-based aid. [Id. at 150:3–6].
B. The Admissions Process Several Harvard admissions officers testified generally about reviewing application files as well as about their review of specific files. The Court credits this testimony. They each described a time-consuming, whole-person review process where every applicant is evaluated as a unique individual. See, e.g., [Oct. 17 Tr. 205:6–223:10; Oct. 24 Tr. 174:19–175:23]; see also [DD1].9 Admissions officers attempt to make collective judgments about each applicant’s personality, intellectual curiosity, character, intelligence, perspective, and skillset and to evaluate each applicant’s accomplishments in the context of his or her personal and socioeconomic circumstances, all with the aim of making admissions decisions based on a more complete
9 “DD” refers to demonstrative evidence presented by Harvard.
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understanding of an applicant’s potential than can be achieved by relying solely on objective criteria. [Oct. 16 Tr. 16:15–22; Oct. 17 Tr. 182:17–183:7, 209:16–223:10]; see, e.g., [Oct. 18 Tr. 22:9–48:4; DX293].
1. The Application Students apply to Harvard either through the early action program or the regular decision program.10 All applications are reviewed in the same way regardless of whether a student has applied for early action or regular decision. [Oct. 18 Tr. 15:5–10]; see [PX1]. The Admissions Office may accept, reject, or waitlist applicants, or, in the case of early action applicants, defer them into the regular decision applicant pool. [Oct. 18 Tr. 124:14–125:9]. Students who apply for early action are admitted at a higher rate than regular decision applicants. [Oct. 25 Tr. 242:19–243:17]. Students apply to Harvard by submitting the Common Application or the Universal College Application. [Oct. 17 Tr. 186:1–10; Nov. 1 Tr. 27:13–19]. A complete application generally includes standardized test scores, high school transcript(s), information about extracurricular and athletic activities, intended concentration and career, a personal statement, supplemental essays, teacher and guidance counselor recommendations, and other information about the applicant, including high school and personal and family background, such as place of birth, citizenship, disciplinary or criminal history, race, siblings’ names and educations, and
10 Harvard eliminated its early action program for the classes of 2012 through 2015, in part to improve the socioeconomic diversity of its students. [PX316 at 15]; see [DX728]. Eliminating early action, however, did not have the expected effect on class diversity, and Harvard’s peer institutions largely continued with their early action and early decision programs. [PX316 at 15]. Harvard became concerned that it was losing some of the most competitive applicants to other colleges that offered early decision or early action and decided to reverse course and reinstate its early action program for the class of 2016. [Oct. 17 Tr. 163:9–164:1; Oct. 18 Tr. 89:13–91:19; Oct. 22 Tr. 100:6–101:15, 185:2–186:8; Oct. 23 Tr. 158:14–160:19; DX39 at 4].
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parents’ education, occupation, and marital status. See, e.g., [DX195, DX262, DX276, DX293, DX527, SA1, SA2, SA3, SA4].11 Applicants can also supplement their applications with samples of their academic or artistic work, which may be reviewed and evaluated by Harvard faculty. [Oct. 17 Tr. 189:5–14; Oct. 18 Tr. 31:21–32:13]; see, e.g., [DX276 at 41; DX293 at 42]. Applicants may, but are not required to, identify their race in their application by discussing their racial or ethnic identity in their personal statement or essays or by checking the box on the application form for one or more preset racial groups (e.g. American Indian or Alaskan Native, Asian, Black or African American, Native Hawaiian or Other Pacific Islander, or White) and may also select or indicate a subcategory of these groups. See [Oct. 18 Tr. 52:8–14; Oct. 26 Tr. 98:2–6; SA2 at 4; SA3 at 8].12 If applicants disclose their racial identities, Harvard may take race into account, regardless of whether applicants write about that aspect of their backgrounds or otherwise indicate that it is an important component of who they are. [Oct. 26 Tr. 91:17– 92:1].
2. Alumni and Staff Interviews Most applicants interview with a Harvard alumnus. [Oct. 15 Tr. 128:2–6]. Harvard selects alumni to interview candidates based predominantly on geographic considerations. Alumni interviewers are provided with an Interviewer Handbook that describes the admissions process. [Id. at 127:9–128:1]; see [DX5]. Although interviewers have broad discretion in deciding where to conduct the interview, what information to request in advance, and what to
11 “SA” refers to evidence offered by student amici. 12 Harvard could elect not to receive information about applicants’ race for all applicants or some racial subgroups. In fact, Harvard no longer receives information about applicants’ religious affiliation, [Oct. 19 Tr. 186:7–187:18], although it does continue to receive some information about applicants’ religions and beliefs from applicants who choose to write about their religious identities in their essays or their personal statements, [id. at 246:25–247:17].
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ask, Harvard specifies several questions that alumni interviewers should not ask and also instructs alumni not to advise applicants on their chances of admission, given that “this analysis can only be accomplished with full access to all the material in an applicant’s file and through the extensive discussions shared and comparisons made through the Committee process.” [DX5 at 30–34]. Alumni interviews generally last from 45 minutes to an hour. [Oct. 17 Tr. 218:25– 219:9].
Alumni interviewers do not have all of the information that is available to admissions officers at the time of admissions decisions, but their evaluations can be uniquely helpful to admissions officers, as alumni interviews are often an applicant’s sole in-person interaction with a Harvard representative. [Id. at 219:17–220:10].13 Alumni interviewers complete an evaluation form that requests numerical ratings for applicants in academic, personal, and overall categories that align with the rating categories later used by Harvard admissions officers. See [PX88 at 50– 52].14 Alumni interviewers also score applicants in a single category that captures extracurricular and athletic activities, community involvement, employment, and family commitments, while admissions officers score applicants in separate extracurricular and athletic categories. See [PX88 at 51; SA1 at 29]; see also infra Section 0. Ratings generally fall between 1 and 4, with 1 being the strongest. The ratings criteria used by alumni (i.e. when to rate
13 Alumni interviewers may ask students about their standardized test scores, interests, and high schools, but alumni generally do not have access to teacher recommendations, counselor reports, and transcripts, all of which are critical to admissions officers’ evaluation of applicants. [Oct. 17 Tr. 218:25–219:9]. 14 Alumni ratings for applicants’ personal and overall qualities may be reprinted by admissions officers on the summary sheets that sit at the front of application files. See [Oct. 17 Tr. 219:10– 13; DD1 at 15]; e.g. [DX276 at 1]. Some applicants are scored by admissions officers before alumni ratings are available. See [Oct. 24 Tr. 119:7–25].
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applicants 1, 2, 3, 4, or worse for the various rating categories) roughly correspond to the criteria used by the admissions officers. Compare [PX1 at 5–7], with [PX88 at 50–52].
Beyond providing numerical ratings, alumni interviewers write comments explaining their ratings on the interview evaluation form, which is then placed in the applicant’s file. See, e.g., [SA1 at 29]. Although the Interviewer Handbook contains a section on distinguishing excellences including “ethnic . . . factors,” alumni interviewers are not explicitly told to boost the ratings they assign to applicants based on race or ethnicity. [DX5 at 11]. Alumni interviewers are, however, told to “[b]e aware of, and suspect, your own biases” and that awareness of one’s biases is important because “no one can really be ‘objective’ in attempting to evaluate another person . . . .” [Id. at 35].
In addition to alumni interviews, which are offered to most applicants, a small percentage of applicants interview with an Admissions Office staff member. [Oct. 19 Tr. 177:14–19]. Although some staff interviews are offered on a first come, first served basis, many applicants secure staff interviews because they are well-connected or particularly attractive candidates, or because they are from a part of the country where an alumni interview may be unavailable. [Oct. 17 Tr. 219:14–220:12; Oct. 19 Tr. 175:8–181:14]. Students who have staff interviews tend to be among the strongest applicants and are admitted at a comparatively high rate. See [Oct. 19 Tr. 178:24–182:18].15 Asian American applicants are less likely to have a staff interview than white, African American, or Hispanic applicants. [PX619]. Among applicants who receive a staff interview, 59% of African Americans, 48% of Hispanics, 53% of whites and 44% of Asian
15 Less than 3% of all applicants, but more than 20% of recruited athletes, legacies, applicants on the dean’s or director’s interest lists, and children of faculty or staff (“ALDCs”) receive a staff interview. [PX619]. Approximately 52% of all applicants and 79% of ALDC applicants who receive staff interviews are admitted. [Id.].
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Americans are admitted. [Id.]. The lower admission rate for staff-interviewed Asian Americans is driven primarily by the fact that Asian American applicants are less likely than African American and Hispanic applicants, and far less likely than white applicants, to be recruited Athletes, Legacies, on the Dean’s or Director’s interest list, or Children of faculty and staff (“ALDCs”), all of whom are advantaged in Harvard’s admissions process. See [id.]. 16
3. Application Review Process i. Admissions Office and Personnel
The Admissions Office is tasked with deciding which applicants to admit and which to reject or waitlist. See [Oct. 19 Tr. 160:1–11]. Dean of Admissions and Financial Aid William Fitzsimmons,17 Admissions Director Marlyn McGrath,18 and Financial Aid Director Sally Donahue19 oversee the Admissions Office, which has approximately seventy employees, including the forty admissions officers who read applicant files and directly participate in the process of deciding which applicants to admit (the “Admissions Committee”). [Oct. 17 Tr. 180:3–13; Oct. 19 Tr. 232:18–20]. Harvard’s admissions staff is a diverse group of individuals that includes Asian Americans. [Oct. 18 Tr. 20:22–21:2]. Several admissions officers testified at trial and forcefully denied the suggestion that racial animus or conscious prejudice against
16 ALDCs are disproportionately white, with 8% of white applicants being ALDCs compared to 2.7% of African American, 2.2% of Hispanic, and 2% of Asian American applicants. [PX619]. 17 Dean Fitzsimmons began working in the Admissions Office in 1972 as an Assistant Director of Admissions. He later served as Director of Admissions and worked for the Harvard Fund, before becoming Dean of the Admissions Office in 1986. [Oct. 15 Tr. 123:6–124:13]. 18 Director McGrath received a Ph.D. in 1978 and became a Residential Dean at Harvard the same year. She also worked in academic planning for the Faculty of Arts and Sciences at Harvard, before becoming the Director of Admissions in 1987. [Oct. 19 Tr. 156:6–157:8]. 19 Director Donahue recently retired from her leadership role but continues to assist the Admissions Office, including by reading applications. [Oct. 19 Tr. 242:11–17]. Director Donahue did not testify at trial.
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Asian Americans infect Harvard’s admissions process. See, e.g., [Oct. 24 Tr. 175:11–17]. Consistent with this, the Court finds no persuasive documentary evidence of any racial animus or conscious prejudice against Asian Americans.
There is significant turnover in the Admissions Office, which frequently hires relatively young admissions officers who leave to pursue other opportunities after a few years. [Oct. 19 Tr. 233:4–240:3]; see [DX25 at 117–20]. New admissions officers go through an orientation process that includes training on evaluating applicants and how to consider race. [Oct. 18 Tr. 187:13–188:18; Oct. 19 Tr. 43:18–44:2; Oct. 24 Tr. 139:7–24, 222:12–223:14]. The training utilizes a casebook that contains lightly edited application files from past years, and new admissions officers are guided on how to evaluate and score applicants based on those files. See [Oct. 19 Tr. 257:2–20]. The first fifty or one hundred application files reviewed by a new admissions officer are also reviewed by a more senior admissions officer who gives feedback to the less-experienced colleague as part of the training process. See [Oct. 16 Tr. 13:16–20; Oct. 24 Tr. 139:18–22]. The Admissions Office holds an annual retreat that sometimes includes professional development sessions on evaluating applicants, and admissions officers receive an annual training from Harvard’s general counsel that covers the permissible use of race in the admissions process. [Oct. 19 Tr. 45:12–47:10]. The Admissions Office has not historically provided new admissions officers with any written guidance on how to consider race in the admissions process, although Harvard amended its admissions reading procedures in 2018 for the class of 2023 to explicitly instruct admissions officers that they “should not take an applicant’s race or ethnicity into account in making any of the ratings other than the Overall rating” and that for the overall rating “[t]he consideration of race or ethnicity may be considered only as one factor among many.” [PX723 at 3 (emphasis omitted)]; see [Oct. 16 Tr. 19:12–17].
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ii. Reading Procedures Applications are divided into geographic dockets based on high school location. [Oct. 16 Tr. 8:2–20; DX5 at 16]. A subcommittee of the full Admissions Committee is responsible for the initial evaluation of applications within each docket. [DX5 at 16–17]. Docket subcommittees generally include a senior admissions officer who serves as docket chair and three to six additional admissions officers. [Id. at 17]. Each subcommittee member is responsible for reading all applications from a subset of the docket’s high schools. [Oct. 17 Tr. 204:6–205:5]. Because the same reader and subcommittee review all applicants from the same high school, admissions officers develop a familiarity with their respective high schools’ grading practices, academic rigor, and recommendation styles, all of which help them to fairly and consistently evaluate applicants, both from particular high schools and across high schools within their docket. [Id.]; see [Oct. 24 Tr. 110:17–111:17]. Applications are initially reviewed by an admissions officer or “first reader” who assigns the applicant ratings based on reading procedures that are updated on an annual basis. See [PX1; DX5 at 17]. Except for the recent changes to the reading procedures to provide more explicit guidance on the use of race, the substantive guidance on rating applicants has remained largely the same in recent years. [Nov. 1 Tr. 123:19–124:21, 128:19–129:10, 168:16–172:25]; see [PX720; PX721; PX722; PX723; DX742; DX743; DX744]. First readers, and any subsequent readers, assign an overall rating; four profile ratings: (1) academic, (2) extracurricular, (3) athletic, and (4) personal; and at least three school support ratings that reflect the strength of each teacher and guidance counselor recommendation submitted on behalf of an applicant. [Oct. 17 Tr. 206:14–209:8, 217:15–218:3]. Application readers may also rate the strength of any additional recommendations submitted by an applicant. [Id. at 218:4–10]. The ratings generally
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range from 1 to 4, with 1 being the strongest rating. [Oct. 16 Tr. 10:19–11:17; Oct. 17 Tr. 207:13–16]. Ratings of 5 and 6 are also available and indicate either weakness or special circumstances, for example where family responsibilities prevent the applicant from participating in extracurricular activities. [Oct. 16 Tr. 10:21–11:1; PX1 at 5–7]. Admissions officers may also use “+” (stronger) and “–” (weaker) signs to fine tune a rating, with a rating of 2+ being stronger than a rating of 2, which is stronger than a rating of 2–. [Oct. 16 Tr. 11:11–17]; see [Oct. 18 Tr. 31:2–8]. Each of the profile ratings assigned by the first reader and any subsequent readers are preliminary and used as a starting point for any later consideration of the applicant by a docket subcommittee or the full Admissions Committee. [Oct. 17 Tr. 221:6–19].
The academic rating reflects the applicant’s academic strength and potential based on grades, standardized test scores, letters of recommendation, academic prizes, any submitted academic work, and the strength of the applicant’s high school. See [id. at 209:16–210:14; Oct. 19 Tr. 55:4–9; Oct. 24 Tr. 113:5–12]. An academic rating of 1 indicates summa cum laude potential, a genuine scholar, and near-perfect scores and grades (in most cases) combined with unusual creativity and possible evidence of original scholarship; an academic rating of 2 indicates magna cum laude potential, superb grades, and mid- to high-700 SAT scores or a score above 33 on the ACT; an academic rating of 3 indicates cum laude potential, excellent grades, and mid-600 to low-700 SAT scores or an ACT score of 29 to 32; and an academic 4 indicates adequate preparation, respectable grades, and low- to mid-600 SAT scores or an ACT score of 26 to 29. [PX1 at 5–6].
The extracurricular rating is an assessment of an applicant’s involvement in activities during high school and his or her potential to contribute to the extracurricular student life at Harvard. [Oct. 17 Tr. 212:4–213:1]. It may also account for family or personal circumstances
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that have limited the applicant’s participation in extracurricular activities. [Id. at 207:13–23]. An extracurricular rating of 1 indicates national-level, professional or other truly unusual achievement that suggests an applicant may be a major contributor at Harvard; an extracurricular rating of 2 indicates strong contributions to an applicant’s high school in one or more areas, such as being class president or achieving recognition for extracurricular accomplishments on a local or regional level; an extracurricular rating of 3 indicates solid participation but without special distinction; and an extracurricular rating of 4 indicates little or no participation. [PX1 at 6].
An athletic rating of 1 indicates that an applicant is a recruited athlete, an athletic rating of 2 indicates strong high school contribution and possibly leadership roles in athletics, an athletic rating of 3 indicates active participation, and an athletic rating of 4 indicates little or no participation in athletics. [Id.].
The personal rating reflects the admissions officer’s assessment of what kind of contribution the applicant would make to the Harvard community based on their personal qualities. [Oct. 17 Tr. 213:22–216:1; Oct. 18 Tr. 39:1–25]. Although the reading procedures have not historically provided detailed guidance on what qualities should be considered in assigning a personal rating, relevant qualities might include integrity, helpfulness, courage, kindness, fortitude, empathy, self-confidence, leadership ability, maturity, or grit. See [Oct. 17 Tr. 213:22–214:19; Oct. 19 Tr. 227:6–228:2; Oct. 24 Tr. 117:4–24]. For the application cycles that were the subject of the statistical analysis performed in this case, the reading procedures specified that a personal rating of 1 meant “outstanding,” 2 meant “very strong,” 3 meant “generally positive,” and 4 meant “bland or somewhat negative or immature.” [PX1 at 6; PX71 at 6]. The personal rating criteria, perhaps in response to this lawsuit, were overhauled for the class of 2023, and the reading procedures now explicitly state that “an applicant’s race or
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ethnicity should not be considered in assigning the personal rating” and encourage admissions officers to consider “qualities of character” such as “courage in the face of seemingly insurmountable obstacles,” “leadership,” “maturity,” “genuineness, selflessness[,] humility,” “resiliency,” “judgment,” “citizenship,” and “spirit and camaraderie with peers.” [PX723 at 5].
The overall rating reflects the admissions officer’s impression of the strength of the application, taking account of all information available at the time the rating is assigned. [Oct. 18 Tr. 186:12–15; Oct. 19 Tr. 49:3–15; PX1 at 5]. An overall rating of 1 is exceptional and a clear admit, an overall 2 reflects strong credentials, an overall 3 indicates good credentials, and an overall 4 indicates respectable credentials. [PX1 at 5; DX744 at 3].20 Admissions officers are permitted to take an applicant’s race into account when assigning the overall rating. [Oct. 17 Tr. 221:3–5].
Applicants are also assigned school support ratings that indicate the strength of their teacher and guidance counselor recommendations. [Oct. 17 Tr. 217:15–218:10; Oct. 18 Tr. 204:3–22]. A school support rating of 1 indicates strikingly unusual support, a 2 indicates very strong support, a 3 indicates above average positive support, and a 4 indicates somewhat neutral or slightly negative support. [PX1 at 7]. Teacher and guidance counsel recommendations may inform the profile ratings, for example if a teacher discusses a student’s academic or extracurricular commitments, but the school support ratings are distinct from the profile ratings and do not impact the profile ratings in a formulaic manner. See [Oct. 31 Tr. 36:10–37:16].
Harvard also considers whether applicants will offer a diverse perspective or are exceptional in ways that do not lend themselves to quantifiable metrics. Harvard may give
20 The summaries here reflect the Class of 2018 reading procedures. Although the ratings guidelines are routinely revised, the guidelines and reading procedures for the classes of 2014 through 2019 do not differ in material respects.
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applicants a “tip” for “distinguishing excellences,” such as capacity for leadership, creative ability, and geographic, economic, and racial or ethnic factors. See [Oct. 17 Tr. 191:8–200:20; DX5 at 9–11]. The Admissions Committee gives some applicants large tips for non-academic reasons where an individual’s talents or background suggests that admitting them will be especially beneficial to the Harvard community. See [DX5 at 11]. ALDCs are the four most notable groups of applicants, other than racial minorities, who receive such tips. [Oct. 17 Tr. 12:10–14:23, 198:22–201:17; Oct. 18 Tr. 48:14–21; Oct. 23 Tr. 204:10–16; PX104; PX106; PX111]. Recruited athletes receive a tip in the admissions process because they are being recruited by one of Harvard’s varsity sports teams and are presumably exceptionally talented, but legacy applicants, those on the dean’s or director’s interest lists, and children of faculty and staff obtain an admissions tip that is primarily or exclusively a product of family circumstances. Harvard’s objective in giving tips to applicants based on criteria other than individual merit, such as to legacies and the children of its faculty and staff, is to promote the institution and is unrelated to the racial composition of those applicant groups. [Oct. 17 Tr. 198:22–200:11].
When reviewing an application, “first readers” generally begin with the application summary sheet, which is a two to three page document that is prepopulated with much of the key information about an applicant, including the applicant’s high school, citizenship, test scores, GPA, class rank, and race. E.g. [DX195 at 2]. The summary sheet also contains blank spaces for ratings and notes, to be filled in by the first reader and a potential second reader. [Oct. 18 Tr. 22:18–23:3]; e.g. [DX195 at 2–4]. After reviewing an application file, the first reader rates the strength of the teacher and guidance counselor letters of recommendation, assigns the academic, extracurricular, athletic, personal, and overall ratings to the applicant, and writes any notes about the applicant. [Oct. 17 Tr. 206:24–207:12]. The reader then sends the application to the docket
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chair if it merits further review, at which point the docket chair will review the file, record his or her own ratings of the applicant based on the same criteria, and add written comments. See [Oct. 19 Tr. 250:12–251:2]; e.g. [DX195 at 2–3]. Even if the first reader does not pass an application on for further review, the application and the first reader’s scoring remain available to all admissions officers and may be discussed later in the admissions process. [Oct. 18 Tr. 12:1–13, 16:7–17:5]. Although docket chairs are frequently the “second reader,” other admissions officers may also serve as a second reader as circumstances require, for example when the first reader is new to the Admissions Office. [Oct. 17 Tr. 206:1–13].
iii. Committee Meetings and Admissions Decisions After the application files for the early action or regular decision cycle have been reviewed by the early readers, the docket subcommittees meet as a group to collectively evaluate the applications in their dockets and come up with a list of recommended admits for the full Admissions Committee. [Id. at 204:10–12; Oct. 18 Tr. 12:14–13:5]. The subcommittees consider early admission applicants in November and meet again to consider regular decision applicants in late January or February. See [DX41]. First readers act as the advocate for the applicants whose applications they initially reviewed. [Oct. 16 Tr. 8:7–9:2; Oct. 17 Tr. 204:10– 12]. Subcommittees generally go through their docket of applications high school by high school, with the first readers for each high school presenting the applicants they view as legitimate contenders for admission. [Oct. 18 Tr. 9:20–10:7]. All applications on a subcommittee’s docket, including those that the first readers view as legitimate contenders and those that they do not intend to present to the subcommittee, are included in a binder which helps the subcommittee members compare and contrast applicants. [Id. at 108:8–11:25]. In some subcommittee meetings, summary information about the applicant under discussion, including
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race, is projected on a screen so that it can be easily viewed by all subcommittee members during the discussion of that applicant. [Oct. 24 Tr. 191:23–192:24]. The subcommittees make recommendations on applicants, including to admit, waitlist, and reject, and may also place applications on hold to await additional information or defer an early decision applicant to the regular admissions pool. [Oct. 18 Tr. 12:14–13:5]. Subcommittees may take race into account in making these initial recommendations. [Oct. 24 Tr. 128:12–25]. The initial recommendations are not final, and the application review process is fluid. It is common for some applicants who are not initially recommended for admission by a subcommittee to be admitted, and for some applicants who are initially recommended for admission to be waitlisted or rejected, especially where more information about an applicant becomes available later in the admissions process. [Oct. 18 Tr. 13:6–15].
As the process progresses and after the subcommittees decide more definitively which applicants to recommend for admission, the full Admissions Committee, comprised of all forty admissions officers who read applications, meets to collectively decide which applicants to admit. [Id. at 13:18–21]. Additionally, there is a standing committee, which includes faculty members, that assists the Admissions Office in its review and evaluation of applications, and those faculty members are also invited to attend the full Admissions Committee meetings. [Id. at 13:19–14:8]. The full committee meets in late November and early December to discuss early action applicants and in March to consider regular decision applicants. [Id. at 14:9–11; DX41].
Almost all applicants who are recommended for admission by the subcommittees are discussed by the full committee. [Oct. 18 Tr. 15:17–19]. Additionally, every admissions officer has access to every application file and may call the full committee’s attention to applicants who have not been recommended by a subcommittee. [Id. at 12:1–13, 16:7–9]. Applications are
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projected on a screen while the full committee discusses the applicant, and the full application
file is available to committee members electronically. [Id. at 17:6–11]. At the time of the full
committee meeting, there is often more information available to the full committee than was
available to the application’s earlier readers and the applicable subcommittee because additional
high school grades, alumni interview evaluations, and other information frequently becomes
available later in the admissions process. [Id. at 17:12–20]. The full Admissions Committee
makes decisions by in-person majority votes. [Id. at 17:21–18:2].
In making admissions decisions, Harvard’s goal is to admit the best freshman class for
Harvard College, not merely a class composed of the strongest applicants based solely on
academic qualifications. [DX5 at 9–10]. Although the reading procedures reflect the traits that
Harvard looks for in applicants, Harvard does not decide which applicants to admit based on any
formula. See [Oct. 17 Tr. 221:20–223:6]. As the Interviewer Handbook describes:
The Admissions Committee values objective criteria, but holds a more expansive view of excellence. Test scores and grades indicate students’ academic aptitude and achievement. The Committee also scrutinizes applications for extracurricular distinction and personal qualities. Students’ intellectual imagination, strength of character, and their ability to exercise good judgment—these are other, critical factors in the admissions process, and they are revealed not by test scores but by students’ activity outside the classroom, the testimony of teachers and guidance counselors, and by alumni/ae interview reports. Seeking evidence of these three criteria—academic excellence, extracurricular distinction, and personal qualities— the Committee reads with care all the components of each applicant’s file: the high school transcript, standardized test scores, extracurricular activities, personal statement, teacher and secondary school recommendations, and the personal interview report.
Attempts to define and to identify precise elements of character, and to determine how much weight they should be given in the admissions process, require discretion and judiciousness. But the Committee believes that the “best” freshman class is more likely to result if we bring evaluation of character and personality into decisions than if we do not. We believe that a diversity of backgrounds, academic interests, extracurricular talents, and career goals among students who live and learn together affects the quality of education as much as a great faculty or vast material resources.
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[DX5 at 10]. The Admissions Office sets a target number of students to admit based on the roughly
1,600 spots available each year and the expected matriculation or yield rate for admitted applicants. See [Oct. 15 Tr. 160:18–161:5]. After the full committee completes its review of all applicants recommended for admission, Harvard often needs to remove some students from the admit list to reach its target number of admitted students. [Oct. 23 Tr. 191:1–4]. When it becomes necessary to reduce the list of prospective “admits”, the Admissions Committee uses a “lop process” in the closing days of the full committee meetings that involves discussing candidates again and then “lopping” some from the admit list. [Oct. 24 Tr. 130:22–131:10; Nov. 1 Tr. 244:3–245:15].21 In aid of this, a potential lop list is prepared that may contain the HFAI status, athletic rating, legacy status, gender, and race of the applicants whom the committee is expected to consider lopping. [Oct. 24 Tr. 131:16–24]. Dean Fitzsimmons then informs the Admissions Committee of the characteristics of the admitted class, which may include racial composition, and the committee decides, as a group, which students to lop off the admit list based on many factors, which may include race. See [id. at 196:1–200:16].
After the Admissions Committee concludes the full committee meetings, applicants are notified whether they have been admitted, wait-listed, or rejected, or in the case of early action students, whether they have been deferred into the regular decision process. See [Oct. 18 Tr. 124:16–125:9]. Additionally, some applicants may be offered deferred admission or “z-listed,” meaning they are offered a spot in the class following the class year for which they applied. [Oct. 19 Tr. 167:25–168:23].
21 Some subcommittees engage in a similar lop process, as they select students to be recommended to the full committee for admission. [Oct. 24 Tr. 130:22–131:6].
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Application Review Process [DD1 at 4].
4. Harvard’s Use of Race in Admissions Throughout the admissions process, the Admissions Office leadership tracks the racial composition of the applicant pool, the students recommended for admission to the full committee, and the students admitted by the full committee. The composition of applicants and admitted students helps the Admissions Office see how well its efforts to achieve a diverse class are working by showing, for example, whether Harvard is seeing increases in applications from students with the backgrounds that it has placed a special emphasis on recruiting, and whether minority students have been admitted in numbers that will likely lead to a racially diverse entering class. See [Oct. 18 Tr. 81:20–82:18]. To do this tracking, Dean Fitzsimmons, Director McGrath, and a few other admissions officers receive “one-pagers” that provide a snapshot of the projected class and compare it to the prior year. [Id. at 80:2–5; Oct. 23 Tr. 178:21–179:10]. The one-pagers contain statistics on applications and admission rates by gender, geography, academic interest, legacy status, financial aid circumstances, citizenship status, racial or ethnic group, and on recruited athlete status and applicants flagged as disadvantaged. [Oct. 18 Tr. at 77:5–78:2]; e.g. [PX165 at 2].
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The racial breakdown shown on the one-pagers is provided based on three methodologies, the “old methodology,” the “new methodology,” and the federal government’s “Integrated Postsecondary Educational Data System” (“IPEDS”), [Oct. 18 Tr. 78:3–13]; e.g. [PX165 at 3], with the Admissions Office preferring the new methodology.22 [Oct. 18 Tr. 81:6–19, 85:5–7].
Dean Fitzsimmons shares the breakdown of the admitted class as reflected on the onepagers with the full committee from time to time. [Id. at 80:6–18; Oct. 19 Tr. 195:21–196:16]. For example, at the start of the full Admissions Committee meetings, he usually states how many students are being recommended for admission by the subcommittees and how the breakdown of the class compares to the prior year in terms of racial identities and other demographics. [Oct. 24 Tr. 83:7–16; Oct. 26 Tr. 104:22–106:14]. The leadership of the Admissions Office monitors the breakdown of the class as the full committee meetings progress and through the lop process. See [Oct. 23 Tr. 181:4–23]. Although there are no quotas for subcategories of admitted students, if at some point in the admissions process it appears that a group is notably underrepresented or has suffered a dramatic drop off relative to the prior year, the Admissions Committee may decide to give additional attention to applications from students within that group. [Oct. 19 Tr. 198:23– 200:10].23
22 The new methodology better reflects the racial diversity that results from students who identify with multiple racial groups than the IPEDS methodology. [Oct. 18 Tr. 83:17–84:9]. Harvard has found the IPEDS methodology less reflective of the actual diversity of its class because, for example, it classifies all applicants who identify as Hispanic as only Hispanic irrespective of other racial groups they may also identify with. [Id. at 84:10–24]. This avoids double counting but results in the underreporting of the representation of minority racial and ethnic groups because many students identify with two or more racial groups. [Id. at 84:10–85:7]. 23 Harvard also shares statistics on admissions by race with the Association of Black Admission and Financial Aid Officers at the Ivy League and Sister Schools to learn about the practices of other schools. [Oct. 24 Tr. 83:17–85:17].
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In addition to giving the Admissions Office some perspective on whether it is admitting a diverse class, the collective racial composition of applicants and admitted students helps Harvard better forecast its overall yield rate because different racial groups historically accept offers to attend Harvard at differing rates. [Oct. 15 Tr. 160:18–162:7]. As examples, admitted Asian American students usually matriculate at a higher rate than white students, while admitted Hispanic, African American, Native American, and multiracial applicants matriculate at a lower rate. [Oct. 18 Tr. 80:21–81:5]; see [PX324]. Because of these variations in yield rates by racial group, Harvard uses the racial makeup of admitted students to help determine how many students it should admit overall to avoid overfilling or underfilling its class. See [Oct. 15 Tr. 162:1–15].
In addition to monitoring the likely racial makeup of the admitted class, admissions officers use race in evaluating applicants and assigning an overall rating. [Oct. 17 Tr. 221:3–5; Oct. 18 Tr. 49:20–50:3, 186:16–25]. Although race may act as a tip or plus factor when making admissions decisions, it is only ever one factor among many used to evaluate an applicant. [Oct. 18 Tr. 49:10–16, 167:2–169:24]; see [DX5 at 11]. Race is only intentionally considered as a positive attribute. [Oct. 16 Tr. 22:18–23:4; Oct. 18 Tr. 197:5–11]; see [Oct. 30 Tr. 80:1–23].
Admissions officers are not supposed to, and do not intentionally, take a student’s race directly into account when assigning ratings other than the overall rating, but Harvard’s reading procedures did not instruct readers not to consider race in assigning those ratings until 2018, when Harvard amended the reading procedures for the class of 2023 to provide more explicit guidance on the appropriate use and non-use of race. See [Oct. 18 Tr. 49:20–50:3; Oct. 19 Tr. 252:21–253:13; Oct. 24 Tr. 121:21–122:4, 140:6–25; Nov. 1 Tr. 124:3–125:11; PX723 at 1, 3]. Further, some admissions officers may take an applicant’s race into account indirectly, for
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example when an applicant’s race has influenced other personal qualities that the admissions officer believes will add to the Harvard community. [Oct. 19 Tr. 48:11–49:1; Oct. 24 Tr. 138:1– 10].
No admission officer who testified perceived Harvard to be engaged in discrimination against Asian Americans. For example, Senior Admission Officer Charlene Kim24 was asked what her reaction was to the allegation that Harvard discriminated against Asian Americans. She responded:
I think now just concern. It’s not what I know our office to be. It’s not who I am. . . . I would never be part of a process that would discriminate against anybody, let alone people that looked like me, like my family, like my friends, like my daughter. And so I’m actually really grateful to be able to be here to share my little bit of my experience on the admissions committee . . . . I’m not here to say that it’s perfect, but I know that we don’t discriminate against anyone. [Oct. 24 Tr. 175:11–22]. To summarize the use of race in the admissions process, Harvard does not have a quota for students from any racial group, but it tracks how each class is shaping up relative to previous years with an eye towards achieving a level of racial diversity that will provide its students with the richest possible experience. It monitors the racial distribution of admitted students in part to ensure that it is admitting a racially diverse class that will not be overenrolled based on historic matriculation rates which vary by racial group. Although racial identity may be considered by admissions officers when they are assigning an applicant’s overall rating, including when an applicant discloses their race but does not otherwise discuss it in their application, race has no specified value in the admissions process and is never viewed as a negative attribute.
24 Ms. Kim is a senior admissions officer, the assistant director of financial aid, and the director of Harvard’s first-generation program. She graduated from the University of California at Berkeley and received a master’s degree from New York University. She began working in the Admissions Office in 2008. [Oct. 24 Tr. 125:12–25, 141:18–142:1].
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Admissions officers are not supposed to, and do not intentionally, consider race in assigning ratings other than the overall rating.
C. Prelude to this Lawsuit 1. The Unz Article
This lawsuit followed magazine and news articles that raised the specter of Asian American students being penalized in college admissions based on their racial identity. Harvard’s response to that controversy demonstrates Harvard’s concern about the perception that its admissions process was racially biased but also the complexity of the statistical evidence upon which the allegations here are based.
On or about November 28, 2012, Ron Unz, a Harvard alumnus, published an article titled “The Myth of American Meritocracy” in The American Conservative (the “Unz Article”). [PX218]. Unz asserted that elite universities were biased against Asian Americans and employed “de facto Asian quotas” as evidenced by a gap between Asian American representation among America’s most academically accomplished high school students and their comparatively low representation at elite colleges. [Id. at 9]. The Unz Article, which itself included language that suggested certain unsavory biases,25 did not attract much attention until approximately one month later when David Brooks of the New York Times published an article that promoted the Unz Article as one of the best magazine articles of the year and argued that stagnant Asian American representation at Harvard between 1995 and 2011 smelled like a quota system. See [Oct. 17 Tr. 24:19–25:17]. The two articles together and their allegations of racial
25 The article relies in part on data based on perceptions about the proportion of national merit scholarship semifinalists from California whose “names seem to be Jewish.” [PX218 at 12]. Although the Court recognizes that this article might have interested some sociologists, it was not unreasonable for some Harvard admissions officials to view the article as “profoundly antiSemitic” and, as a result, to view it as less than serious scholarship. [Oct. 17 Tr. 158:2–159:10].
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bias sparked concern among Harvard’s leadership and some of its alumni, who encouraged Harvard to respond to the allegations. See [id. at 25:8–37:25; PX227; PX238].
2. Analysis by Office of Institutional Research i. Mark Hansen’s Admissions Models
Following the 2012 Christmas and 2013 New Year’s holidays, Dean Fitzsimmons attempted to develop a response to the Unz Article, including soliciting input from Harvard’s Office of Institutional Research (“OIR”). [Oct. 17 Tr. 37:14–38:16; Oct. 23 Tr. 208:13–209:21; PX230; PX236; PX238].26 As part of OIR’s initial evaluation of the statistical evidence, research analyst Mark Hansen27 prepared four rough logistic regression models, using data on applicants and admission outcomes for the classes of 2007 through 2016, to project Harvard’s admitted classes using a limited set of variables, including applicants’ race. [Oct. 24 Tr. 14:5–
26 OIR is a university-wide office that provides statistical analysis in response to requests from across Harvard University and sometimes on its own initiative when it anticipates a need for such work. During the relevant time period, the office typically had approximately 30 ongoing projects and received numerous additional ad hoc requests each year. [Oct. 19 Tr. 126:5–23]. OIR’s objective was and remains to offer accurate, timely, and digestible research that is tailored to diverse audiences with the goal of promoting informed decision-making and furthering the core missions of the university. [Oct. 18 Tr. 210:9–14; PX465]. 27 Mr. Hansen studied mathematics at Boston University before obtaining a master’s degree from Harvard’s Graduate School of Education. He was hired as a management fellow by OIR in the summer of 2010 and was promoted to research analyst in 2011. He left OIR in the summer of 2013 to work for MIT’s Office of Institutional Research. [Oct. 24 Tr. 10:19–11:25].
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24]; see [PX12 at 32–35].28 His most expansive model used applicants’ academic index,29 academic rating, legacy and recruited athlete status, personal rating, extracurricular rating, gender, and race as inputs to predict the admitted class. See [PX12 at 33]. The classes projected by this model had racial demographics that approximated the actual class based on the probability of admission assigned to applicants by the model. See [id. at 34–35]. Mr. Hansen’s less complete models, which did not include variables for racial identities, projected admitted classes with far more Asian students than Harvard’s actual admitted classes, suggesting either that racial tips resulted in fewer Asian students being admitted or that factors correlated with Asian identity that were not included in Mr. Hansen’s models were significantly affecting which applicants Harvard chose to admit. See [id. at 33–34].
28 At trial, SFFA emphasized a 17-page draft presentation, replete with blank spaces and typographical errors, that Mr. Hansen prepared in February 2013 but did not circulate to others. See [PX9]. In this draft presentation, Mr. Hansen summarized his findings as follows:
 Athletes and Legacies explain the difference in raw admit rates for Asian and White applicants.
 Asian applicants have higher average ratings and test scores (excluding the personal rating).
 Differences exist in the raw admit rates of Asian and White students with similar test scores and academic indices. Even top scores and ratings don’t guarantee admission.
 Personal rating is important in models of the admissions process and drive some of the demographic differences we see.
[Id. at 2]. Much of the information in the draft presentation, including the above summary, was never shared with the Admissions Office. See [PX12]. Further, it does not appear that anyone affiliated with Harvard other than Mr. Hansen, saw the draft report prior to this litigation. [Oct. 19 Tr. 111:14–22; Oct. 24 Tr. 50:9–14]. 29 The academic index is a metric that provides an indication of overall strength by taking account of standardized test scores and high school grades. [Oct. 16 Tr. 84:9–23].
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Mr. Hansen’s models could lead a casual observer to conclude that race plays a significantly larger role in Harvard’s admissions process than it actually does. The models incorporate far fewer variables than those prepared by the parties’ economic experts for this litigation and omit many variables that are important to the admissions process. Compare [PX12 at 33], with [PD38 at 26].30 Even Mr. Hansen’s most complete model almost certainly suffers from considerable omitted variable bias in light of the likely correlation between race and important variables that Mr. Hansen did not include. Most notably, his models contain no controls for socioeconomic and family circumstances that correlate with race and also affect admissions decisions. See [PX12 at 33]. Given these deficiencies in the models, they are entitled to little weight for the purpose of determining whether Harvard discriminates against Asian American applicants, particularly given the availability of the experts’ far more comprehensive models and the testimony offered by fact witnesses in this case. See [Oct. 19 Tr. 19:19–20:8]. Mr. Hansen’s models do suggest, consistent with other evidence, that Asian Americans applicants excel in academic metrics; that tips for legacies and recruited athletes result in more white students being admitted; that a projection of Harvard’s class based only on the profile ratings, academic metrics, and athlete and legacy statuses is incomplete and results in a projected class that is vastly less racially diverse than the one Harvard achieves; and that, absent any consideration of race, Harvard’s classes would have drastically fewer African American and Hispanic students. See [PX12 at 33–34].31
30 “PD” refers to demonstrative evidence presented by SFFA. 31 The Court notes that Mr. Hansen’s models suggest that any increase in Asian American admits would come largely at the expense of African Americans and Hispanics.
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A limited selection of slides depicting Mr. Hansen’s logistic regression models were included in a February 25, 2013, presentation for Dean Fitzsimmons that focused on and included much more information on the reintroduction of Harvard’s early action program and an analysis of issues related to the accessibility and affordability of a Harvard education. [Oct. 17 Tr. 83:24–84:16; PX12 at 32–37]. The slides on Mr. Hansen’s models that were shared with Dean Fitzsimmons included a statement that they were “preliminary and for discussion,” and they were not presented or understood as evidence of discrimination. See [Oct. 17 Tr. 83:24– 84:16; PX12 at 32–36]. Dean Fitzsimmons concluded that Mr. Hansen’s models were incomplete, and he elected not to discuss those slides or the information they contained with Harvard’s leadership at that time. [Oct. 17 Tr. 84:3–85:1]. More than a year later, Mr. Hansen’s models were shared with Dean Khurana, shortly after he became the dean, in advance of a “highlevel meet-and-greet type meeting” that was intended to generally familiarize Dean Khurana with OIR’s work. [Oct. 23 Tr. 44:3–8, 45:6–10, 46:12–17]; see [PX41 at 50]. Dean Khurana also found Mr. Hansen’s models incomplete and viewed them as a puzzling approach to understanding Harvard’s admissions process. [Oct. 23 Tr. 47:4–49:18].
ii. Low-Income Admissions Models Following the February 2013 meeting with OIR, Dean Fitzsimmons requested that Dr. Erin Driver-Linn32 and Ms. Erica Bever33 further analyze the effect of low-income status, which Dean Fitzsimmons hoped and expected would confirm that Harvard was providing a tip to lowincome applicants. [Oct. 17 Tr. 172:22–173:21]. This analysis was intended to respond, at least
32 During the relevant period, OIR was led by Dr. Driver-Linn, who holds a Ph.D. in social psychology from Harvard. [Oct. 19 Tr. 69:9–70:7]. 33 Ms. Bever joined OIR in 2007 and transitioned to the Admissions Office where she now serves as a senior admissions officer and the director of research. [Oct. 18 Tr. 200:7–201:1].
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in part, to criticism that elite colleges, like Harvard, were not doing enough to attract low-income
students. See [PX26 at 2]. On May 1, 2013, Ms. Bever, Dr. Driver-Linn, and Mr. Hansen sent
Dean Fitzsimmons a summary of their initial findings in a memorandum titled “Harvard College
Admissions and Low Income Students.” [Id.]. Their analysis found that Harvard students from
lower income backgrounds generally have lower SAT scores but that they are admitted at higher
rates when controlling for their SAT scores. [Id. at 2–3, 6–7].
After reviewing the distribution of SAT scores by family income, OIR’s memorandum
discussed the need to model the admissions process to better evaluate whether the Admissions
Office was providing a tip to low-income students, given that the relationship between income
and admission, controlling only for SAT scores, could have been the result of a relationship
between income and other factors, such as race. [PX26 at 3–4]; see [PX28 at 4 (indicating that
applicants with family incomes of less than $60,000 accounted for 25% of Hispanic, 24% of
African American, 18% of Asian American, and 10% of white applicants)]. As OIR’s memo to
Dean Fitzsimmons summarized:
The differences [in students’ SAT scores by income] could be related to other factors important in the admissions process. In order to control for those potential issues, we implement a logistic regression model to predict the probability of admission, controlling for demographic characteristics and a variety of metrics used to asses qualification for admission. Demographic characteristics include gender and race/ethnicity. Qualifications used in admission include academic index, academic rating, extracurricular rating, personal rating, athletic rating, and legacy status. This approach has several limitations; we picked a small set of variables that would factor in admissions decisions. The selection of a wider set of variables might result in a better fitting model, one that accounts for more of the variation in individual applicants and their potentially unique contributions to the entering class. For example, the model does not capture exceptional talent in art or music explicitly (although ratings may capture some aspect of these attributes). In addition, our model is limited to main effects, not examining interactions between variables. Our analysis should not be considered exhaustive.
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[PX26 at 3]. To the extent that OIR’s initial analysis suggested that Harvard was providing an admissions tip to applicants from low-income backgrounds, that tip appeared less significant than tips for legacies and recruited athletes. See [id. at 8–9]. OIR explained that:
To get a sense of the size of the admissions advantage conferred to low-income applicants relative to other groups of applicants, the so-called “thumb on the scale,” we include low-income status in a second logistic regression model. . . . The variables with the largest effects on the probability of admission are athletic rating, personal rating, and legacy status. Compared to athletes and legacies, the size of the advantage for low income students is relatively small. [Id. at 3]. The memorandum also noted that “Asian applicants with an academic 1 or 2 are admitted 12% of the time compared against an admit rate of 18% for non-Asian applicants” and provided a chart illustrating this disparity. [Id. at 4, 9]. Further, the memo stated that certain “issues” should be considered before sharing the analysis publicly, including that there are “demographic groups that have negative effects,” although the only demographic group for which OIR’s analysis returned a negative coefficient was “Asian.” [Id. at 4]. Although the model returned a negative coefficient for Asian applicants, neither OIR nor Dean Fitzsimmons viewed the report as indicative of discrimination. [Oct. 17 Tr. 109:15–19; Oct. 19 Tr. 152:22–153:15]. After receiving the May 1, 2013 memorandum, Dean Fitzsimmons asked OIR to examine the effect of Asian racial identity on admissions outcomes to confirm that the low-income tip was being fairly and consistently applied to all groups, but he did not ask OIR to further examine the effect of being Asian on admissions outcomes across the board. [Oct. 17 Tr. 127:22–128:12, 129:13–17]. OIR added an interaction term for Asian and Low Income which allowed the model to return coefficients that accounted for the possibility that the tip for low income varied by race. See [PX28 at 7–8]. On June 3, 2013, OIR shared with Dean Fitzsimmons its additional analysis, [Oct. 17 Tr. 129:13–130:13], which showed a coefficient for the interaction term of “Asian and
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Low Income” that was positive and statistically significant but of a lesser magnitude than the negative coefficient for Asian identity, see [PX28 at 7; PX29]. This updated analysis suggested that although low-income Asian American applicants were provided a tip relative to their higher income Asian American peers, the magnitude of that tip might not overcome the negative relationship between Asian racial identity and admissions outcome, when holding constant some variation in the profile ratings, gender, and applicants’ academic index. [Id. at 7]; see also [DD10 at 27]. Nevertheless, the data reassured Dean Fitzsimmons that the Admissions Office was “treating Asian Americans in an evenhanded manner.” [Oct. 17 Tr. 134:3–11]. As with Mr. Hansen’s February 2013 models, OIR’s May 2013 models suffer from significant omitted variable bias, and the magnitude of the negative coefficient for Asian applicants is relatively modest considering the number and significance of omitted observable and unobservable factors. See [PX28 at 7]. As a result, the OIR analysis is weak evidence of bias against Asian American applicants, particularly relative to the more thorough econometric analysis that has been done by the parties’ economic experts in connection with this litigation.
Dean Fitzsimmons’ non-inference of actual discrimination based on the relatively modest negative Asian coefficient was reasonable given the limitations of OIR’s model and his own experience with and confidence in the Admissions Office’s process. Dean Fitzsimmons did not ask for additional analysis based on OIR’s results, nor did he make any changes to Harvard’s admissions process in response to that analysis, because his review of the data did not lead him to believe that the Admissions Office was biased against Asian American applicants. [Oct. 17 Tr. 137:11–17, 138:7–24].
3. The Ryan Committee In April 2014, Harvard learned of a website that had launched with the url harvardnotfair.com. Harvard’s staff recognized that the website was being promoted by some of
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the same individuals who had financed Fisher v. University of Texas at Austin, 570 U.S. 297 (2013) (“Fisher I”), and 136 S. Ct. 2198 (2016) (“Fisher II”). [Oct. 23 Tr. 211:7–15]; see [PX283]. Apparently in response to the prospect of litigation, Harvard University formed a committee to examine race-neutral alternatives to its race-conscious admissions practices (the “Ryan Committee”). See [Oct. 22 Tr. 13:14–19, 129:13–130:17]. The Ryan Committee, chaired by Jim Ryan, the Dean of the Graduate School of Education, included more than two dozen members from across the university. [Oct. 16 Tr. 69:3–7; Oct. 22 Tr. 13:20–14:2]; see [PX300; PD19]. The committee’s work never really got “off the ground,” owing at least in part to its broad membership and the conflicting scheduling demands of many committee members. [Oct. 16 Tr. 69:10–70:15; Oct. 19 Tr. 76:8–77:10]. After meeting only a few times, it disbanded in December 2014, shortly after this lawsuit was filed. [Oct. 16 Tr. 70:2–6; PX316 at 2]; see [ECF No. 1]. No substantive analysis of any race-neutral alternatives examined by the Ryan Committee was entered into evidence. See [Oct. 19 Tr. 77:14–24 (“I believe the team did some work, under privilege. . . . Under direction of counsel.”)].
4. The Khurana Committee In 2015, following the filing of this lawsuit and the disbandment of the Ryan Committee, Harvard established the Khurana Committee, officially titled “the Committee to Study the Importance of Student Body Diversity,” which was chaired by Dean Khurana.34 [Oct. 22 Tr. 210:23–211:21; PX302 at 22]. The Khurana Committee “sought to examine and restate the
34 In addition to Dean Khurana, the members of the Committee to Study the Importance of Student Body Diversity included Mahzarin R. Banaji, the Richard Clarke Cabot Professor of Social Ethics; Emma Dench, the McLean Professor of Ancient and Modern History and of the Classics; Yukio Lippit, the Harris K. Weston Associate Professor of the Humanities; David R. Pilbeam, the Henry Ford II Professor of Human Evolution; and, Jonathan L. Walton, the Plummer Professor of Christian Morals and Pusey Minister of the Memorial Church. [Oct. 23 Tr. 35:14–18; PX302 at 22].
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benefits that the College derives – as an institution, and for its students and faculty – from student body diversity of all kinds, including racial diversity.” [PX302 at 1]. The Khurana Committee’s report, referenced supra at Part III.A, was prepared with the assistance of counsel and in the face of litigation, but nonetheless reflects an extensive and thoughtful examination of the benefits of diversity to Harvard College. [Oct. 22 Tr. 211:10–212:11]. The committee concluded its report by stating:
We emphatically embrace and reaffirm the University’s long-held view that student body diversity – including racial diversity – is essential to our pedagogical objectives and institutional mission. It enhances the education of all of our students, it prepares them to assume leadership roles in the increasingly pluralistic society into which they will graduate, and it is fundamental to the effective education of the men and women of Harvard College. [PX302 at 22]. In February 2016, Harvard’s Faculty of Arts and Sciences voted unanimously to adopt the report. [Nov. 1 Tr. 198:19–24]. Although the Khurana Committee was keenly aware that it was addressing a question that “the Supreme Court has asked public institutions of higher education to answer in connection with the consideration of an applicant’s race in the admissions processes as one factor among many in an individualized review,” its focus was limited to Harvard’s interest in diversity, rather than the viability of race-neutral alternatives. See [PX302 at 1].
5. The Smith Committee In June 2017, Harvard established the “Committee to Study Race Neutral Alternatives in Harvard College Admissions,” chaired by Michael Smith, the Dean of the Faculty of Arts and Sciences, with Dean Fitzsimmons and Dean Khurana serving as the other committee members (the “Smith Committee”). [PX316 at 1, 3]. The Smith Committee evaluated whether raceneutral means, singly or in combination, would enable Harvard to achieve its diversity-related educational objectives. [Id. at 8–9]. Prior to 2017, Harvard had repeatedly expressed the
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importance of its race-conscious admissions policy and its understanding that diversity across multiple dimensions was critical. See generally [id.]. Harvard had not, however, conducted a detailed empirical analysis of the viability of race-neutral alternatives for at least fifteen years. See [Oct. 16 Tr. 66:21–67:6; Oct. 19 Tr. 194:3–195:3].
The Smith Committee worked with Harvard’s attorneys and had access to the analyses done by the experts in this case. [PX316 at 3]. The committee held seven meetings between August 2017 and April 2018 and then issued a report that was drafted by Harvard’s attorneys. [Oct. 23 Tr. 65:20–66:4; PX316 at 1, 3]. It examined all of the race-neutral alternatives proposed by SFFA, and additionally considered eliminating preferences for athletes and the use of test scores in the admissions process. See [PX316 at 6–18]. The Smith Committee concluded that no workable race-neutral admissions practices could, at that time, promote Harvard’s diversityrelated educational objectives while also maintaining the standards of excellence that Harvard seeks in its student body through its whole-person, race-conscious admissions program, and recommended that Harvard reexamine the issue in five years. [Oct. 22 Tr. 133:21–134:15; Oct. 23 Tr. 126:25–127:6, 134:15–19; PX316 at 18–19]. IV. FINDINGS OF FACT: NON-STATISTICAL EVIDENCE OF DISCRIMINATION
As will be more fully discussed, the parties rely heavily on statistical evidence related to the admissions process. Additionally, to corroborate its statistical evidence, SFFA makes several other arguments in support of its contention that Harvard discriminates against Asian American applicants.
A. Sparse Country First, as discussed above, Harvard uses a search list, which is primarily compiled based on potential applicants’ ACT, SAT, or PSAT test scores to help Harvard market itself to a diverse array of high school students. The ACT, SAT, or PSAT score that students need to make
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the search list varies by gender, high school GPA, geography, and race. See [Oct. 15 Tr. 136:5– 139:21; PX2]. For example, to make Harvard’s class of 2018 search list, a white male high school student from outside “sparse country”35 needed an SAT score of 1380, while black, Chicano, Hispanic, Native American, and Puerto Rican students needed only an 1100. See [PX2]; see also [PX50].
As SFFA points out, there are some anomalies in the search list selection criteria that are difficult to explain. As an example, assuming an applicant reported a sufficiently high GPA, for the class of 2018, Harvard lowered the SAT score required to make the search list to 1310 for students from “sparse country” who identified their race as white, other, or unidentified while not simultaneously lowering the required score for Asian American students from the same states to the same level. Consequently, Asian American students from the same states needed to score 1350 or 1380, depending on their gender, to make the search list. See [Oct. 15 Tr. 150:3–9; PX2; PX50]. Some Asian American students therefore did not make the search list, when white students from the same area who had similar grades and SAT scores did. See [Oct. 15 Tr. 151:22–152:2]. SFFA, while recognizing that the list is a marketing tool, would have the Court consider this “sparse country” disparity between the scores required for Asian Americans and whites to make the search list as evidence of Harvard’s intent to impose more selective admissions criteria on Asian Americans for the purpose of artificially suppressing Asian American representation at Harvard.
35 Sparse country for the purposes of the PSAT search includes twenty predominantly rural states: Alabama, Alaska, Arizona, Arkansas, Idaho, Louisiana, Maine, Mississippi, Montana, Nebraska, Nevada, New Hampshire, New Mexico, North Dakota, Oklahoma, South Dakota, Utah, Vermont, West Virginia, and Wyoming. [Oct. 15 Tr. 144:25–147:20; PX2].
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Notably, however, in some of the same years that Harvard did not lower the sparse country SAT search list score for Asian Americans commensurate with the lower requirement for whites, it selected Asian Americans for the search list based on lower ACT scores than similarly situated white students from more urban states. See [Oct. 17 Tr. 151:13–152:4; PX2]. Overall, the inconsistencies in the search criteria do not seem to be linked to efforts to advantage or disadvantage any particular racial group, and it was unclear from the testimony at trial whether these variations were accidental or intentional. At root, although being placed on the search list results in recruitment and is correlated with a higher likelihood of admission, the search list is fundamentally a marketing tool that does not affect individual admissions decisions. [Oct. 15 Tr. 129:24–132:25].
B. The OCR Report SFFA next points out that the specter of Harvard discriminating against Asian Americans in its admission process has been raised before. The argument is, at least in part, that repeated instances of smoke should heighten concerns about a fire. In the late 1980s, Harvard faced allegations of bias against Asian American applicants in its admissions process that culminated in a 1990 report by the United State Department of Justice Office of Civil Rights (“OCR”) (“OCR Report”). [PX555 at 2, 15–16]. The OCR Report reached an “overall conclusion that Harvard did not discriminate against Asian American applicants to its undergraduate program in violation of Title VI of the Civil Rights Act,” but its findings indicated that some admissions officers took race into account when assigning the personal rating during the period preceding the 1990 report. See [id. at 45–46]. Further, The OCR Report found recurring characterizations of Asian American applicants that were broadly consistent with stereotypes, noting that:
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In addition to examining the ethnic reader’s comments, OCR’s concern for the potential stereotyping of Asian American applicants prompted a review of reader comments for negative characterizations which could have an impact on the admissions decision and ratings. On its face, reader comments revealed several recurring characterizations attributed to Asian American applicants. Quite often Asian American applicants were described as being quiet/shy, science/math oriented, and hard workers. For example, one reader’s comment embraced all of these in describing an Asian American applicant when she wrote:
“[A]pplicant seems like a reserved, hard-working, aspiring woman scientist/doctor.”
While such descriptions may not seem damaging, OCR was conscious that problems of “model minority” stereotypes could negatively impact Asian American applicants as a whole. This concern was also raised when OCR's file review came upon comments such as:
“He’s quiet and, of course, wants to be a doctor . . .”
suggesting that most or all Asian American applicants “want to be a doctor.” Or more pointedly:
“[A]pplicant’s scores and application seem so typical of other Asian applications I’ve read: extraordinarily gifted in math with the opposite extreme in English.”
OCR noted that in a number of cases, Asian American applicants were described as “quiet, shy, reserved, self-contained, soft spoken” and that these characteristics were underlined for added emphasis by the reader. While white applicants were similarly described, OCR found such descriptions ascribed to Asian American applicants more frequently. In some cases these comments actually originated from the interviews, teacher or counselor recommendations, or self-descriptions given by the applicant.
. . . .
OCR recognized that reader comments were also sometimes echoes of other reviewers’ commentaries related to the applicant. OCR also noted a few cases in which the readers referred to an applicant as “a classic V.N. [Vietnamese] bootstrap case” or “a classic BC/NC (blue collar/non-college background) Asian American from the inner-city.” While it was clear from the context of the statement that the readers were not criticizing the applicants, and that there was no negative intention, the comments do suggest a tendency to stereotype by calling the applicants “classic.”
[Id. at 24–25]. Following the conclusion that Harvard did not discriminate against Asian
American applicants and despite some of the specific findings, Harvard did not hold a meeting or
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otherwise require that its admissions officers modify their evaluation practices to avoid actual
stereotyping or the appearance of stereotyping. [Oct. 16 Tr. 59:17–24].
In the instant case, the admissions officers who testified at trial uniformly asserted that
they do not and have not directly considered race in assigning ratings, other than the overall
rating.36 The Court credits the admissions officers’ testimony and concludes that Harvard has
made clear to its admissions officers in more recent years that they should not use race in
assigning the profile ratings. Harvard perhaps should have instituted an explicit written policy
stating which ratings could take race into account before 2018, but that error has now been
remedied. See [PX723 at 3, 5].
C. More Recent Allegations of Stereotyping and Bias
SFFA also points to more recent examples of admissions officers referring to Asian
American applicants as “quiet,” “hard worker,” “bright,” but “bland,” “flat,” or “not exciting.”
See, e.g., [DX50 at 186, 178, 693, 1040, 1062].
Harvard’s admissions officers are tasked with carrying out a particularly delicate job in
that they are instructed to consider race in the admissions process, including for applicants who
36 Senior Admissions Officer Christopher Looby’s deposition testimony is the sole instance in which an admissions officer allegedly admitted that race was directly used in assigning a personal rating between the 1990 OCR Report and the present. SFFA relied on Mr. Looby’s deposition testimony in its opening argument, stating, “he’ll tell the truth that he’s been using race in the personal rating for ten years.” [Oct. 15 Tr. 27:22–24]. Mr. Looby joined Harvard’s financial aid office in 2008 and has been reading admissions files since approximately 2010. See [Oct. 18 Tr. 148:16–25]. When asked during his deposition if he would “take a student’s race into account when assessing his or her personal qualities,” Mr. Looby answered that “just like with the academic rating, it’s one factor of many I consider.” [Id. at 182:8–19]; see also [Looby Dep. 51:12–17, June 30, 2017]. Mr. Looby testified at trial that he misunderstood the deposition question, and that he meant to state that he used race as one factor in assessing an applicant’s overall rating just as he considered the academic rating in assigning the overall rating. [Oct. 18 Tr. 185:19–23]. His response to the deposition question appears to have been a misstatement, and the Court concludes that Mr. Looby meant to indicate at his deposition that he would consider the academic rating and race in assigning the overall rating, not the personal rating. See [id. at 182:18–184:8].
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have indicated a race or ethnicity but have not elaborated on the importance of that identity, without engaging in unlawful discrimination. This job is especially sensitive due to the lengthy history of discrimination against many racial minorities in the United States, including Asian Americans, as well as Harvard’s own history of discriminating against Jewish applicants beginning in the 1920s. [Oct. 24 Tr. 188:17–25; Oct. 29 Tr. 34:22–35:13, 161:17–162:16]; see Korematsu v. United States, 323 U.S. 214 (1944), abrogated by Trump v. Hawaii, 138 S. Ct. 2392 (2018).
It is true that Asian American applicants continue to face both positive and negative stereotypes, such as perceptions that they are timid, hard-working, and are inclined towards medicine and science. See [Oct. 29 Tr. 56:1–56:20]. It is also true that Asian Americans have significantly higher median incomes (perhaps indicative of the strong work ethic in many Asian American communities)37 and are more likely to hold science, technology, engineering, and mathematics occupations than the United States population more broadly.38 Therefore, in reviewing applicant files and comments made by admissions officers, the Court is sensitive to the challenge of differentiating among discriminatory comments that evidence actual stereotyping, animus, or racism and comments about a particular applicant that may incidentally
37 Although Asian Americans tend to have higher incomes than Americans with other racial identities, the evidence suggests that Asian American applicants to Harvard are more likely to come from modest socioeconomic backgrounds than white applicants. [PX28 at 2–5]. 38 See Anthony Martínez & Asiah Gayfield, The Intersectionality of Sex, Race, and Hispanic Origin in the STEM Workforce 8 (U.S. Census Bureau, Social, Econ., and Hous. Statistics Div., Working Paper No. 2018-27, Feb. 2019), https://www.census.gov/content/dam/Census/library /working-papers/2019/demo/sehsd-wp2018-27.pdf; Kayla Fontenot, Jessica Semega & Melissa Kollar, Income and Poverty in the United States: 2017 at 2–5, (U.S. Census Bureau Current Population Reports, Sept. 2018), https://www.census.gov/content/dam/Census/library/ publications/2018/demo/p60-263.pdf; Liana C. Landivar, Disparities in STEM Employment by Sex, Race and Hispanic Origin at 2, 7, 12, 16 (U.S. Census Bureau Am. Cmty. Survey Reports, Sept. 2013), https://www2.census.gov/library/publications/2013/acs/acs-24.pdf.
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reference a stereotypical characteristic, like “hard working,” but which may also reflect an actual strength or weakness of that particular applicant.
SFFA has not shown that any applicant was referred to by these types of descriptors because of their race or that there was any sort of systemic reliance on racial stereotypes. The docket binder that contains notes to the effect that several Asian American applicants were “quiet” or “flat” also includes notes for white, African American, and Hispanic applicants who were also described as “quiet,” “shy,” or “understated.” [DX50 at 620, 975, 1054]. In the absence of a pattern or a more pervasive use of stereotypes, the Court accepts that there are Asian American applicants who were “quiet” and that the use of this word with regard to such an applicant would be truthful and accurate rather than reflective of impermissible stereotyping.
In addition to SFFA’s concerns about Asian American applicants being referred to as “quiet” and the like, SFFA also points out that there is a statistical relationship between race and the use of the term “standard strong,” which some admissions officers use to indicate a strong applicant who is nonetheless unlikely to be admitted because he or she is not sufficiently distinguished within Harvard’s exceptional applicant pool. [Oct. 25 Tr. 133:20–134:1]. Asian Americans were labeled “standard strong” more frequently than white applicants, and significantly more frequently than African American or Hispanic applicants. See [id. at 135:4– 10]. In a sample of 10% of the applicants to the class of 2018, admissions officers noted that 255 students were “standard strong.” [Id. at 134:6–11]. Not one of the 255 standard strong applicants in the sample was admitted. [Id. at 135:16–18]. The standard strong applicants included 126 white applicants, 114 Asian American applicants, 12 Hispanic applicants, and 3 African American applicants. [Id. at 134:23–135:3]. Approximately 15% of Asian American applicants in the original 10% sample were labeled standard strong, compared to 12% of white
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applicants, 4% of Hispanic applicants, and 1% of African American applicants. [Id. at 135:4–10; PD38 at 41]. Additionally, the Asian American applicants considered standard strong averaged higher academic indexes, math SAT scores and academic ratings than standard strong applicants from other racial groups. See [Oct. 25 Tr. 135:4–136:9]; see also [PD38 at 41].
These statistics on the use of “standard strong” are consistent with the profile ratings Harvard admissions officers assigned to Asian American applicants and white applicants, which show that Asian American applicants excelled, on average, on academic and extracurricular ratings, but were weaker when evaluated on personal and athletic criteria. See [PX621; PX622]. There is not a significant difference, however, between the white and Asian American applicants who were labeled “standard strong” as reflected by the sum of their profile ratings. See [Oct. 31 Tr. 94:16–97:18]; see also [DX709]. Further, the higher proportion of standard strong Asian American applicants is consistent with the fact that Asian American applicants to Harvard’s class are disproportionately unlikely to be among the weakest applicants: less than 21% of Asian American applicants received an overall rating of 4 or worse, compared to 24% of white applicants, 41% of Hispanic applicants, and 52% of African American applicants. [PX621]. As such, it is not surprising that a higher proportion of Asian Americans than white applicants were labeled standard strong.
In addition to the use of phrases that align with stereotypes of Asian American applicants and the use of the words “standard strong,” SFFA has identified a few instances in which Harvard’s Admissions Office’s leadership acted in a manner that SFFA argues shows some degree of racial bias. Although the Court concludes that none of these incidents reflects any actual bias against Asian Americans by Harvard’s admissions officers, they do merit brief mention.
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In April 2012, Director McGrath was asked to respond to a letter to President Drew Gilpin Faust from an elderly alumnus. See [PX461 at 3–6]. The alumnus’ letter argued that Harvard should be admitting more students from Massachusetts, proposed admissions quotas based on religious affiliation and skin color, and stated that Harvard has “a large number of oriental students.” [Id. at 5]. Director McGrath wrote a polite response, stating that the alumnus’ “comments on the importance of attracting a strong representation of students from Massachusetts resonates well in the Admissions Committee,” but also that Harvard “has become more representative of the ethnic and economic diversity of the country and, the University believes, better positioned to make significant contributions to the country.” [Id. at 1]. Director McGrath’s carefully crafted response rejected a proposal that was inconsistent with Harvard’s values and did not endorse the suggestions made in the letter, while seemingly trying not to alienate its author.
In a January 2014 exchange, Director McGrath sent her daughter, who served as an alumni interviewer for Harvard, a list of the top applicants from Utah prepared by the alumni interviewers for that state, noting that she was “sending this along for your amusement. Pure Utah.” [PX265]. In responding, Director McGrath’s daughter wrote back, “Hahaha. Very Thorough!! I also love that the top-tier list is, as you’ve told me before, all Asians except for a couple . . . .” [Id.]. The email, which reflects amusement at the unusual degree of thoroughness of the Utah alumni interviewers, does not reflect a negative view of Asian Americans.39
39 Director McGrath testified that she thought it notable that the Utah schools committee put all Asian Americans at the top of their list because it “confounds the stereotype that many people have of the population of Utah.” [Oct. 19 Tr. 221:3–11].
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In sum, comments on application files and Admissions Office correspondence do not suggest any pervasive bias against Asian Americans among Harvard’s admissions officers or its admissions leadership, nor has the Court identified any individual applicant whom it can determine was discriminated against or intentionally stereotyped by an admissions officer, including by the use of the words “standard strong.” V. FINDINGS OF FACT: STATISTICAL ANALYSIS
A. Sources of Statistical Evidence In addition to testimony based on the lived experiences of witnesses, the parties introduced statistics and econometric models through expert witnesses. This statistical evidence is perhaps the most important evidence in reaching a resolution of this case, given SFFA’s heavy reliance on the data to make out its claims. Harvard presented its statistical evidence primarily through Professor David Card, and SFFA presented its statistical evidence primarily through Professor Peter Arcidiacono.40 Both Professors Card and Arcidiacono are very well-qualified experts, but they fundamentally disagree about whether the statistics show that Asian Americans are discriminated against in the Harvard admissions process. Their disagreement results from differences in their respective statistical models of admissions outcomes, based on their inclusion of different applicants and use of different control variables. Therefore, decisions by the Court as to which applicants and control variables belong in the admission outcome model are pivotal.
40 Harvard’s expert, Professor David Card, and SFFA’s economist, Professor Peter Arcidiacono, are both highly respected economists. Professor Card is an economics professor at the University of California at Berkeley, where he teaches undergraduate and graduate level economic courses. He has published numerous articles and books and is a winner of the John Bates Clark Prize. [Oct. 30 Tr. 73:7–76:2; DX133]. Professor Arcidiacono is a professor of labor economics at Duke University. He teaches undergraduate and graduate-level economic courses and has published numerous peer-reviewed articles. His research is focused on labor economics, and more narrowly, higher education. [Oct. 25 Tr. 14:7–17:14].
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In sum, as discussed more fully below, Professor Arcidiacono excludes ALDCs from his model despite the fact that they make up about 30% of each admitted class, analyzes the data in aggregate rather than independently modeling each admissions cycle, excludes certain variables that he contends are unreliable and have unexpected effects on the model, selectively interacts certain variables, omits the personal rating based on his finding that it is influenced by race, and then, based on that data and approach, concludes that Asian Americans are discriminated against in the admissions process. See [Oct. 26 Tr. 62:9–63:25; Oct. 30 Tr. 145:15–148:11; DX695; PD38 at 45]. Professor Card creates an independent model for each admissions cycle, includes the personal rating because he concludes that it does not reflect race and, in any event, includes information that is important to the admissions process such that omitting it skews the outcome, includes the other variables that Professor Arcidiacono omits, and does not interact variables. Using this approach, he comes out with a very slight, and not statistically significant, negative coefficient for Asian American identity and concludes, based on that data and approach, that Asian Americans are not discriminated against in Harvard’s admissions process. See [Oct. 31 Tr. 172:19–173:15; DX695; DD10 at 34–35].
The statistics and econometric models used by Professors Arcidiacono and Card were generated using primarily data produced by Harvard in this litigation. Consistent with this Court’s orders, Harvard provided applicant-by-applicant admissions data for more than 150,000 domestic applicants to Harvard’s classes of 2014 through 2019,41 as well as aggregate
41 Because this lawsuit concerns only allegations of discrimination against United States citizens or permanent residents, foreign applicants were removed from the data set. Further, transfer applicants and those who submitted incomplete applications or for whom Harvard’s database was for some other reason incomplete were also removed. [Oct. 25 Tr. 25:3–26:24; Nov. 1 Tr. 99:12–100:10]. Statistics on “applicants” referred to by these findings of fact are therefore based on data for the approximately 150,000 domestic applicants to Harvard’s 2014 to 2019 classes for whom Harvard’s database contained a single, complete record. See [PD38 at 1].
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information for the classes of 2000 through 2017, and a sample of actual application files and summary sheets from the classes of 2018 and 2019. [Oct. 25 Tr. 23:8–26:13; PD38 at 1]. For each applicant to the classes of 2014 through 2019, Harvard’s database includes hundreds of variables relating to each applicant’s demographic characteristics, personal background, geographic information, test scores, high school grades, ratings assigned by Harvard’s admissions officers, and Harvard’s admissions decision. [Oct. 25 Tr. 23:16–24:8; Oct. 26 Tr. 73:22–74:2]. On behalf of SFFA, Professor Arcidiacono supplemented this data by merging it with College Board data on applicants’ high schools and neighborhoods. [Oct. 25 Tr. 24:9–12].
The parties dispute whether ALDC applicants should be included when computing admissions statistics and modeling Harvard’s admissions process. ALDC applicants are admitted at higher rates than the applicant pool more broadly. SFFA argues that because ALDC applicants are granted significant tips that are not available to most applicants, they are not typical. [Id. at 27:2–25, 29:4–30:7]. SFFA therefore presented numerous statistics based on non-ALDC applicants which it identifies as the “Baseline Dataset.” [Id. at Tr. 27:2–25]. The Baseline Dataset excludes approximately 7,400 ALDCs, leaving a total of 142,728 applicants in the dataset. [Oct. 25 Tr. 30:8–31:3; PD38 at 1–2]. SFFA has also presented data based on a subgroup of dataset applicants that include legacies, dean’s and director’s list applicants, and children of faculty and staff (“LDCs”), but not recruited athletes, which SFFA refers to as the “Expanded Dataset.” [Oct. 25 Tr. 40:17–41:7].
Although ALDCs represent only a small portion of applicants and are admitted or rejected through the same admissions process that applies to other applicants, they account for approximately 30% of Harvard’s admitted class. [Oct. 30 Tr. 153:6–154:8, DX706; DD10 at 38, 40]. For reasons discussed more fully infra at Section V.F, the Court agrees with Professor Card
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that including ALDCs in the statistics and econometric models leads to more probative evidence of the alleged discrimination or lack thereof. Nevertheless, the Court has referenced numerous statistics based on data that excludes some or all ALDCs because SFFA used those metrics at trial.
In addition to statistics based on Harvard’s admissions database, Harvard presented statistics on the racial make-up of its admitted classes from 1980 to 2019, [Oct. 31 Tr. 119:23– 124:6; DX711; DX713; DD10 at 100–04], and SFFA used statistics based on an analysis of 480 sample application files, two-thirds of which were selected by SFFA and one-third by Harvard, [Oct. 25 Tr. 24:21–24]. Both Harvard and SFFA also relied on statistics and models that were prepared by OIR before this lawsuit was filed. See, e.g., [PX9; PX12; PX21].
B. Admission Rates and Ratings by Race Asian Americans were admitted to Harvard at slightly lower rates than white applicants in the years leading up to this lawsuit, with between 5% and 6% of Asian American and between 7% and 8% of white applicants being admitted to the classes of 2014 through 2017. See [PX319 at 15–16]; see also [PD38 at 20].42 The admissions rates differ more significantly among certain subgroups, but the admissions rates for Asian American ALDCs are generally similar to or higher than those for white ALDCs. 88.6% of Asian American recruited athletes, 48.1% of Asian American children of faculty or staff, and 47.7% of Asian Americans on the dean’s or director’s interest lists are admitted, compared to 88.1%, 47.9%, and 43.1% of white applicants in those groups, respectively. [PX634]. Asian American legacies are admitted at a rate of
42 Overall admission rates for Asian American applicants are lowered slightly because they are underrepresented among ALDCs, who are admitted at a rate of 43.6% or nearly eight times the 5.5% admissions rate for non-ALDC applicants. [Oct. 30 Tr. 154:17–155:19; DX679; DD10 at 39].
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35.2%, as are white legacies. [Oct. 25 Tr. 121:7–122:4; PX634]. SFFA’s economic expert, Professor Arcidiacono, acknowledges that Asian American ALDCs were likely not discriminated against.43 [Oct. 25 Tr. 122:16–123:17, 126:1–8]. Non-ALDC Asian American applicants have admission rates that are similar to white applicants, although the admission rates relative to whites varies by year from between 0.2 percentage points lower to 0.9 percentage points higher. [Id. at 68:2–70:2; PD38 at 20].44 With the exception of 2019 where the admission rates favored Asian American applicants, the differences in admission rates for non-ALDC white and Asian American applicants was not statistically significant. See [PD38 at 20]. The gist of SFFA’s argument, however, is not that Asian Americans were excluded altogether, but rather that the non-ALDC Asian American applicants were stronger than the non-ALDC white applicants and should have been admitted at a higher rate. 45
43 Although its expert agrees that Asian American ALDCs were not discriminated against, SFFA continues to argue that they were, but that the strength of their applications overcame the bias. The Court ultimately finds that excluding ALDCs distorts the analysis. 44 The highest annual admissions rate for Asian American applicants relative to white applicants, and the only year for which the admission rates for Asian American and white applicants differed to a statistically significant degree, was the class of 2019, which was selected after the allegations of discrimination that led to this lawsuit emerged. [Oct. 25 Tr. 68:2–22; PD38 at 20]. 45 As reflected by the data, Harvard does not systematically exclude Asian Americans, nor does SFFA claim that it does. As of 2016, the United States population was approximately 60% white and 5.9% Asian. U.S. Census Bureau, Quick Facts, Census.gov, https://www.census.gov/ quickfacts/fact/table/US/RHI225218. Among applicants to Harvard’s class of 2019, 21.2% were Asian American and 57.6% were white. [DX713]. Among those domestic applicants who Harvard admitted, 40% of the class identified as white and 24% identified as Asian American. It is entirely possible, and not without historical precedent, that an admissions process could discriminate against Asian Americans (or Jews) despite their over-representation in a class as compared to the general population. The Court nonetheless includes these numbers to give some context to the overall admissions data.
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Asian Americans would likely be admitted at a higher rate than white applicants if admissions decisions were made based solely on the academic and extracurricular ratings. Among Expanded Dataset applicants, more than 60% of Asian American applicants received academic ratings of 1 or 2, compared to 46% of white applicants, 9% of African American applicants, and 17% of Hispanic applicants. [Oct. 25 Tr. 49:17–50:5; PX623]. Overall, strong academic applicants are particularly abundant, with a higher percentage of applicants (42%) scoring a 1 or 2 on the academic rating as compared to the percent that score a 1 or 2 on any other rating. [DD10 at 4].46 Asian American applicants’ stronger academic ratings broadly align with their stronger performance across a range of qualitative indicators of academic strength. [Oct. 25 Tr. 41:18–46:9; PD38 at 4–7]. Asian American applicants also average relatively high extracurricular ratings. More than 28% of Expanded Dataset Asian American applicants receive an extracurricular rating of 1 or 2, compared to 25% of white applicants, 16% of African American applicants, and 17% of Hispanic applicants. [Oct. 25 Tr. 52:12–22; PX623].
Although Harvard admissions officers do not believe that Asian American applicants, as a group, have worse personal qualities than other applicants and Harvard alumni interviewers assign personal ratings of 1 or 2 to Expanded Dataset Asian American and white applicants with a similar frequency, [Oct. 23 Tr. 204:1–9; Oct. 24 Tr. 138:11–16; Oct. 25 Tr. 55:7–12], Harvard admissions officers assign Asian American applicants personal ratings that are, on average, slightly weaker than those assigned to applicants from other racial groups, [PX623]. Among Expanded Dataset applicants, 22.6% of white applicants receive a personal rating of 1 or 2, compared to 18% of Asian Americans, 19.4% of African Americans, and 19.1% of Hispanics.
46 24% of applicants receive an extracurricular rating of 1 or 2, 21% of applicants receive a personal rating of 1 or 2, and 10% of applicants receive an athletic rating of 1 or 2. [Oct. 30 Tr. 86:25–88:2; DD10 at 4].
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[Id.]. The statistics are similar for Baseline Dataset applicants, with 17.6% of Asian Americans receiving a personal rating of 1 or 2, compared to 18.7% of Hispanics, 19% of African Americans, and 21.3% of whites. [Oct. 25 Tr. 55:13–22; PX621].
At least a partial cause of the disparity in personal ratings between Asian American and white applicants appears to be teacher and guidance counselor recommendations, with white applicants tending to score slightly stronger than Asian Americans on the school support ratings. [PX621; PX623; PD38 at 4–5, 8–10]. Among Expanded Dataset applicants, 31.9% of white applicants received a “teacher 1” rating (the rating for the first of two teacher recommendations submitted) of 1 or 2 compared to 31.6% of Asian American applicants. [PX 623]. For the “teacher 2” rating (the rating for the second teacher recommendation), 33.6% of white applicants received a rating of 1 or 2 compared to 32.3% of Asian American applicants. [Id.]. In the Expanded Dataset, 27.4% of white applicants and 26.4% of Asian American applicants receive a guidance counselor rating of 1 or 2. [Id.]. Although these differences may appear slight, they are significant in that the stronger high school academic and extracurricular performance of Asian American applicants on average would lead one to expect that those applicants would receive stronger teacher and guidance counselor recommendations than white applicants.
On average, Asian American applicants are also assigned lower athletic ratings, particularly compared to white applicants, who average especially strong athletic ratings. See [PX621; PX623; DX692 at 2]. Among non-recruited athlete applicants, only 5% of Asian Americans received an athletic rating of 2, compared to 14% of whites, 7% of African Americans, and 8% of Hispanics. [PX623]. When recruited athletes are included in the calculation, the disparity between white and Asian American applicants receiving strong athletic
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ratings increases, with white applicants receiving athletic ratings of 1 or 2 at roughly three times the rate of Asian American applicants. [Oct. 30 Tr. 96:25–97:19; DX692 at 2; DD10 at 10].
C. Descriptive Statistics In addition to the regression analyses used in this case, Professors Card and Arcidiacono also offered descriptive statistics that support their respective arguments on the question of discrimination. In constructing these statistics, both experts used the same dataset consisting of applicants to the classes of 2014 through 2019 (except that Professor Arcidiacono prefers to remove ALDCs). Professor Card uses the dataset to compare admission rates by racial group for applicants who scored 1s and 2s across similar numbers of profile ratings. He, on behalf of Harvard, uses this multidimensionality analysis to argue that the statistical evidence does not support a conclusion that Harvard discriminates against Asian Americans relative to whites. Meanwhile, Professor Arcidiacono uses an academic decile analysis in which he divides applicants into deciles based on applicant academic index score and then shows that Asian Americans in the top academic deciles are receiving strong personal and overall ratings at lower rates than applicants from other racial groups with similar academic qualifications. He, on behalf of SFFA, argues that the lower average overall and personal ratings for Asian American applicants who have similar levels of academic strength to non-Asian American applicants suggest that Harvard is engaged in a discriminatory admissions process.
1. Professor Card’s Multidimensionality Analysis Professor Card’s statistical analysis shows that the students most likely to be admitted to Harvard are those that do well across the profile and school support ratings, rather than merely excelling on just one rating. In coming to this conclusion, Professor Card analyzed the relationship between race and applicant strength across multiple profile ratings, which he terms an analysis of “multidimensional accomplishments.” [Oct. 30 Tr. 89:3]. Only 7,000 applicants
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per year, or roughly 27%, receive a rating of 1 or 2 in at least two profile ratings, and only 7% of applicants receive ratings of 1 or 2 in three or all four profile ratings. [Id. at 89:19–90:17; DX672; DD10 at 5]. The 7% of applicants who score highly in three or four of the four profile ratings are seemingly the most multidimensional under Harvard’s scoring system; 70% of those applicants are admitted and make up 46% of all admitted applicants. [Oct. 30 Tr. 93:15–94:12; DX672; DD10 at 8]. The 20% of applicants who receive two profile ratings of 1 or 2 account for 38% of admitted students. [Oct. 30 Tr. 93:15–94:12; DX672; DD10 at 8]. Meanwhile, applicants with one or no ratings of 1 or 2 account for 73% of applicants but only 15% of admitted students. [DX672; DD10 at 8]. White applicants are slightly more likely than Asian American students to receive three profile ratings of 1 or 2, with approximately 900 or 9% of all white applicants receiving three such scores relative to 500 or 8% of all Asian American applicants. [Oct. 30 Tr. 95:18–96:10; DX692 at 2; DD10 at 9].
Professor Card has also offered support for his conclusion that white applicants are disproportionately strong in non-academic traits by removing all academic inputs from his model of admissions probability to rank applicants to Harvard. See [Oct. 31 Tr. 69:20–71:5; DD10 at 77]. By doing so, he creates a “non-academic index,” and his analysis shows that white students do disproportionately well in this metric, with 12% of white applicants ranking in the top decile compared to only 7.8% of Asian American applicants. See [Oct. 31 Tr. 70:17–19; DD10 at 77]. Professor Card’s multidimensionality analysis thus suggests that a partial cause of the racerelated disparities in admission rates, when controlling for academic performance, is that Asian American applicants’ disproportionate strength in academics comes at the expense of other skills and traits that Harvard values. See [DX692 at 2–4].
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The Court notes, however, that the profile ratings are not equally distributed in terms of the number of 1s, 2s, 3s, or 4s assigned, nor are they equally correlated with an applicant’s chances of admission. For example, being a recruited athlete (and therefore receiving an athletic rating of 1) vastly improves an applicant’s odds of admission, with 86% of recruited athletes typically admitted and Asian Americans especially underrepresented in that group. [Oct. 25 Tr. 31:11–23; PD38 at 2]. Although Harvard highly values applicants who will contribute to its varsity sports, it also admits a significant number of applicants who do not participate in high school athletics, and who therefore receive an athletic rating of 4 or lower. [Oct. 25 Tr. 28:21– 29:8, 31:11–23; PD38 at 10]. Academic, extracurricular, or personal ratings of 4 or lower are relatively rare and more likely to result in rejection than an athletic rating of 4 or lower. [Oct. 25 Tr. 52:6–54:12; PD38 at 8–10]. 39% of admitted non-ALDC applicants are scored as athletic 4s or lower, while less than 1% of admitted Baseline Dataset applicants are scored as academic, extracurricular, or personal 4s. [Oct. 25 Tr. 52:23–53:13; PD38 at 10]. Further, personal ratings of 1 are exceptionally rare and are awarded to fewer than 10 applicants in a typical year, whereas athletic, extracurricular, and academic ratings of 1 are more common, though they are still each awarded to less than 1% of applicants. See [PX623; PD38 at 2].
Although the profile ratings are not of equal importance, are not assigned on a set curve, and do not have any assigned mechanical weight, receiving multiple ratings of 1 or 2 is strongly correlated with admission. [Oct. 30 Tr. 88:12–89:3, 90:18–92:12; DX672; DD10 at 6, 8]. Because the number of 1s and 2s awarded in each of the four profile ratings every year vastly exceeds the number of students Harvard can admit, Harvard tends to admit applicants with multiple profile ratings of 1 or 2 who are also significantly distinguished in some other way— which, as discussed supra at Part 0, may include accomplishments or characteristics that are
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remarkable even when measured against a very accomplished applicant pool or that are likely to be underrepresented in Harvard’s class.
To summarize, Professor Card uses his multidimensionality analysis to show that the Harvard admissions process favors applicants who score well across the profile and school support ratings and to counter the argument that Harvard’s admissions process is biased based on a comparison of admission rates for students who are similarly-situated academically. Professor Card is correct that an analysis predicated on an applicant’s academic profile ignores statistical disparities between racial groups across other dimensions that favor non-Asian American applicants. Most notably, white applicants are significantly more likely to have made strong high school contributions to athletics, and this disparity counteracts the effect that Asian American applicants’ relative academic and extracurricular strength would otherwise have on their admission rate. Professor Card’s analysis shows that strength across multiple dimensions is highly correlated with admission to Harvard and results in fewer admitted Asian American applicants.
That being said, because Professor Card’s multidimensional analysis gives equal weight to each profile rating, it overvalues the athletic rating which favors white applicants, despite the fact that it is seemingly less important than the academic, personal, and extracurricular ratings for obtaining admission to Harvard, at least for applicants who are not recruited athletes. See [DX692 at 2]. Further, because the multidimensionality analysis uses all the profile ratings, any bias in the ratings, including in the personal rating, is baked into his analysis.
2. Professor Arcidiacono’s Academic Index Decile Analysis In contrast, for his descriptive statistics analysis, Professor Arcidiacono compared applicants by analyzing the relationship between race and various ratings, including school support, academic, extracurricular, personal, and overall ratings for applicants who are
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academically similarly-situated—that is who fall into the same academic index deciles. For this analysis, he splits Baseline Dataset applicants into ten equally sized groups based on their academic index, which reflects the strength of an applicant’s standardized test scores and high school grades, with “Decile 10” containing the 10% of applicants to Harvard who had the strongest academic index scores and “Decile 1” containing the applicants with the weakest scores. See [PD38 at 6]. The deciles reflect only numerical academic metrics in contrast to the academic ratings assigned by Harvard, which incorporate an assessment of academic potential and other non-numerical factors. [Oct. 22 Tr. 137:12–24]. Professor Arcidiacono’s deciles show that Asian American applicants are disproportionately represented in the top academic deciles. See [Oct. 25 Tr. 44:12–48:8; PX624; PX626; PD38 at 6–8]. More than a third of Baseline Dataset Asian American applicants fall in the strongest two academic index deciles, while African American and Hispanic applicants are underrepresented among applicants with the highest academic indexes. [Oct. 25 Tr. 47:22–48:5; PD38 at 8].
Professor Arcidiacono’s academic decile analysis shows a racial disparity in applicants’ personal and overall ratings that appears to favor white applicants based on a comparison of applicants within the same academic decile. See [PD38 at 16, 18–19]. For example, among Baseline Dataset applicants, 22.2% of Asian Americans in the top decile of applicants by academic index (i.e. those with the strongest high school GPA and standardized test scores) receive personal ratings of 1 or 2, compared to 29.6% of whites, 34.2% of Hispanics, and 47% of African Americans; similar variances by race are also present for students in the second and third strongest academic deciles. [Id. at 19]. Similarly, only 12.9% of Baseline Dataset Asian Americans in the top academic index decile receive an overall rating of 1 or 2, compared to 15.6% of whites, 27.4% of Hispanics, and 47% of African Americans. [Id.].
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Professor Arcidiacono’s decile analysis also shows that the disparities between Asian American and white applicants’ school support ratings are magnified when comparing applicants within the same academic index deciles. Among non-recruited athletes, white applicants are only approximately 1 percentage point more likely to receive teacher or guidance counselor ratings of 1 or 2 than Asian American applicants. [PX623]. White applicants in the top academic deciles, however, receive school support ratings of 1 or 2 at a rate that is 4 to 6 percentage points higher than Asian Americans in the same academic deciles. [Oct. 26 Tr. 37:25–40:17].
In sum, Professor Arcidiacono bases his decile analysis on the academic index, which only accounts for test scores and grades—criteria in which Asian American applicants are, on average, especially strong. He argues that the personal rating is compromised, that the athletic rating is not that important, and that Asian American applicants do well on the limited measures that remain and should therefore be admitted at a higher rate than they are. This approach likely over emphasizes grades and test scores and undervalues other less quantifiable qualities and characteristics that are valued by Harvard and important to the admissions process.
D. Overview of Logistic Regression Models Professors Card and Arcidiacono both believe that the descriptive statistics discussed above help to provide context, but also agree that logistic regressions are the most useful econometric tool in evaluating the probable effect of race and other traits on Harvard’s admissions process. See [Oct. 25 Tr. 79:11–83:24; Oct. 30 Tr. 101:5–17]. Their respective logistic regression models seek to isolate the effects of race through models that include, and thereby control for, other variables that affect the modeled outcome. [Oct. 25 Tr. 215:12–19; Oct. 30 Tr. 176:18–179:3].
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The Court notes at the outset that although logistic regression models are seemingly the best available econometric tool, they cannot capture all of the factors that Harvard considers and can therefore account for only part of the variation in admissions decisions, or other modeled outcomes. See [Oct. 25 Tr. 80:13–24; Oct. 30 Tr. 114:10–23]. Further, no model is perfect, and models can be affected by biases that are inherent in the control variables that they use. See [Oct. 25 Tr. 91:17–92:11, 215:16–19]. To limit the impact of variables affected by bias, variables that are themselves impacted by the independent variable of primary interest, which is race, should generally be excluded from regression models. Including such variables dilutes the implied effect of race by allowing that effect to be partially captured by the race-influenced variable itself. See [id. at 215:16–19; Nov. 1 Tr. 77:22–78:4]. Excluding variables for this reason may, however, make a model less accurate because it also results in the removal of information relevant to the modeled outcomes.
Here, although Professors Arcidiacono and Card both endorse the use of regression models, they disagree on whether the personal rating should be included as a control variable. Professor Arcidiacono contends that personal ratings are themselves affected by race and that they should therefore not be used in the admissions model. [Oct. 25 Tr. 99:11–18]. Professor Card argues that the personal rating variable should be included, and thereby implicitly contends that race correlates with personal qualities that affect personal ratings, but that race does not itself affect the personal ratings assigned by admissions officers, or at least that any causal effect of race on the personal rating is insignificant relative to the value of the variable in controlling for a race-correlated, but not directly race-caused, relationship. [Nov. 1 Tr. 79:9–14].47 Further,
47 Directly race-caused means a cause internal to the Harvard admissions process, as distinct from the potential for an effect of race on inputs to that process.
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the personal rating captures other relevant characteristics unrelated to race that will not be taken into account at all by the modeling if the personal rating is excluded, such as the extent to which an applicant demonstrates character, leadership ability, self-confidence, grit, or other distinctive qualities that might benefit the Harvard community.
Logistic regressions result in two metrics that are relevant here: “coefficient” and “marginal effect.” Coefficients indicate how much weight the model suggests each variable has in determining the modeled variable (here, admissions outcome or an assigned rating), holding the other included variables constant. [Oct. 25 Tr. 76:22–78:8]. To generate a coefficient for a discrete variable such as race (e.g. where an applicant is white, Asian American, African American, or Hispanic), a model omits one of those characteristics to create a baseline group (e.g. white applicants) and the coefficients that the model generates for the included groups (e.g. Asian American, African American, and Hispanic) then indicate the implied effect of each of those characteristics on the dependent variable (e.g. admissions outcome) relative to the baseline group, holding constant the control variables that are included in the model (e.g. academic rating, disadvantaged status, parental occupation, etc.). [Id. at 77:24–78:8]. In the experts’ models, a positive coefficient is associated with a higher probability of admission or a stronger rating, and a negative coefficient is associated with a lower probability of admission or a weaker rating. [Id. at 77:3–78:23]. The Court has and will continue to note when race appears “statistically significant” in an analysis, which indicates that the coefficient for some racial group is of a magnitude that would occur infrequently due to random variation if race and the modeled variable were not related when controlling for the other variables included in the model. It is critical to understand that a statistically significant variable in an econometric model is not proof
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of a causal relationship. A statistically significant coefficient may be the result of random variation, omitted variables, or other flaws in the model.
A marginal effect is a measurement of the change in the projected outcome of the model (e.g. odds of admission to Harvard) that is associated with changing a given variable, while holding other variables constant. The magnitude of the change in probability will depend on the other variables. For example, a model might not suggest a large effect on an applicant’s probability of being admitted based on being African American, as opposed to being white, for a student who is academically unprepared (i.e. race won’t make a difference for an unprepared student), but might imply a significantly increased probability of admission associated with being African American rather than white for an applicant who is well-prepared. See [id. at 78:24–80:6; PD38 at 25]. An “average marginal effect” is the average of the marginal effect associated with the variable of interest for that group. For example, one could calculate the average marginal effect of African American racial identity relative to white identity on the odds of admission or of achieving a given rating by averaging the probability changes attributable to the coefficient for African American identity in a relevant model. See [Oct. 25 Tr. 21:18–22:17, 80:8–12, 96:19–97:24; PD38 at 24–25, 31]. Again, it must be understood that the average marginal effect reflects an average statistical relationship between a variable of interest (such as race) and a modeled variable (such as admissions outcome), and that relationship may or may not be causal in nature.
Professors Card and Arcidiacono each prepared models of the admissions process in which the dependent variable is the admissions decision (admitted or rejected). [Oct. 25 Tr. 216:22–217:7; Oct. 30 Tr. 101:15–17]. Their admissions models are broadly similar and predict the probability of admission for domestic non-transfer applicants by accounting for a wide range
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of observable variables including gender, disadvantaged status, first generation college applicant status, fee waiver, whether the applicant applied for financial aid, academic index, intended major, secondary school type, indicators of parental education, whether parents attended an Ivy League school, whether parents are alive, geographic indicators, and standardized test results. See [Oct. 30 Tr. 143:16–25]; see also [PD38 at 26].
There are, however, several critical differences in the structure and control variables utilized by Professor Card’s and Professor Arcidiacono’s respective models. As a result of these differences, Professors Card’s model returns a coefficient for Asian American identity that is negative but not statistically significant, meaning that the model does not strongly suggest that Asian American as opposed to white racial identity affects an applicant’s chances of admission, whereas Professor Arcidiacono’s model returns a negative coefficient for Asian American identity that is statistically significant, meaning that his model suggests that Asian American identity is associated with a lower chance of admission, when controlling for the other variables he includes. [Oct. 25 Tr. 115:1–11; Oct. 30 Tr. 129:9–16, 132:21–134:11]. The modeling differences that result in these disparate conclusions are discussed infra at Section V.F.
Professor Arcidiacono also prepared a series of ordered logit estimates that SFFA contends show how well the ratings assigned for the academic, extracurricular, personal, overall, and school support ratings can be predicted. [Oct. 25 Tr. 90:10–91:23, 150:2–6; Oct. 30 Tr. 101:15–17; Oct. 31 Tr. 188:22–189:1; Nov. 1 Tr. 76:3–11, 79:15–19; PD38 at 28]. These models are similar to Professor Arcidiacono’s model of admissions decisions, except that they are intended to be probative of the effect of race on the ratings assigned by admissions officers rather than the applicants’ probability of admission. [Oct. 25 Tr. 90:16–91:10]. Professor Arcidiacono’s preferred ordered logit models control for application year, application docket,
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academic index, SAT scores, SAT II scores, high school GPA, extremely low-grade applicants, parental education level, including whether a parent attended an Ivy League school, whether the applicant’s parents are alive, expected college major, gender, high school type, neighborhood, disadvantaged status, receipt of an application fee waiver, first generation college applicant status, whether the applicant applied for financial aid, profile ratings other than the dependent variable, teacher recommendation ratings, guidance counselor rating, alumni ratings, and certain interactions among those variables. See [id. at 82:13–85:3; PD38]. To the extent that Professor Arcidiacono’s models imply that Asian American identity is associated with the ratings assigned by admissions officers, his models suggest that the magnitude and direction of the relationship (bonus or penalty) varies by rating and depends on whether an Asian American applicant is male or female and whether or not they are economically disadvantaged. See [PD38 at 28–35].
E. Regression Models of School Support, Profile, and Overall Ratings Although the experts’ models of admissions outcomes are most probative of whether Harvard has engaged in discrimination against Asian Americans relative to white applicants, there are also related statistical relationships between race and the profile and school support ratings. Because those ratings serve as inputs for the proposed admissions outcome models, the Court will briefly address the extent to which race might appear to impact the ratings assigned by admissions officers before turning to the admissions outcome models themselves.
1. Relationship Between Race and School Support Ratings As discussed supra at Section V.C, Asian American applicants have lower average school support ratings than white applicants. There are several conceivable explanations for the disparity including actual differences in non-academic strengths, a correlation between the quality of the guidance counselor or teacher recommenders and the racial makeup of high schools, biased teachers and guidance counselors, or biased Harvard admissions officers.
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Considering the testimony of Harvard’s admissions officers and the admissions process itself, the Court views Harvard admissions officer bias as an unlikely explanation for the disparity in school support ratings and concludes that race-related variance in the school support ratings result from some combination of the other potential causes, all of which are beyond Harvard’s control. Further, when considering regression analyses, because school support ratings can be included in admissions outcome models, any racial effect that impacts admissions decisions through the school support ratings can be controlled for.
Importantly, however, although the school support ratings themselves provide only an overall numeric evaluation of recommendations, the school support materials are in fact more nuanced and the substance of them informs perceptions about applicants across numerous dimensions. [Oct. 31 Tr. 36:16–37:16]. Considering the stereotypes and biases that favor and disfavor Asian American applicants in different evaluation dimensions, the impact of race on the school support ratings could be understood to suggest that the overall numeric score masks more subjective disparities in how applicants from different racial groups are presented by their recommenders. See [id.]. Therefore, to the extent Asian Americans are presented by guidance counselors and high school teachers as weaker in personal characteristics that Harvard values and those presentations inform the personal rating, omission of the personal rating results in an omitted variable bias that cannot be fully captured by including a school support rating control variable.
2. Relationship Between Race and Personal Ratings Professor Arcidiacono’s preferred model suggests that Asian American identity reduced a Baseline Dataset applicant’s probability of receiving a personal rating of 2 or higher. The model implies that when holding constant nearly all of the available observable variables, Asian American identity is associated with a lower probability of being assigned a strong personal
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rating by an admission officer. More precisely, his model suggests that an average Baseline Dataset Asian American applicant has a 17.8% probability of receiving a 2 or higher on the personal rating, which is lower than the 21.6% chance that the model suggests the applicant would have in the absence of any racial preference. [Oct. 25 Tr. 96:24–97:24; PD38 at 31]. Harvard did not offer a competing regression model to show that no statistically significant relationship between Asian American identity and the personal rating exists, and the Court therefore concludes that the data demonstrates a statistically significant and negative relationship between Asian American identity and the personal rating assigned by Harvard admissions officers, holding constant any reasonable set of observable characteristics.
The Court finds, however, that Professor Arcidiacono’s preferred model likely overstates the direct effect of Asian American identity on the personal rating. First, as discussed supra at Section III.B.4, Harvard’s witnesses credibly testified that they did not use race in assigning personal ratings (or any of the profile ratings) and did not observe any improper discrimination in the admissions process. [Oct. 18 Tr. 49:17–19; Oct. 19 Tr. 48:24–49:19, 253:4–17; Oct. 23 Tr. 50:24–51:4, 219:21–24; Oct. 24 Tr. 122:5–8; Nov. 1 Tr. 246:18–247:4, 253:18–25]. The uniformity of these observations is persuasive given the collective manner in which admissions decisions are made, with all members of the Admissions Committee participating in all decisions and having real-time visibility into the process for each applicant. Any causal relationship between Asian American identity and the personal rating must therefore have been sufficiently subtle to go unnoticed by numerous considerate, diligent, and intelligent admissions officers who were immersed in the admissions process.
Second, Professor Arcidiacono’s model explains only a portion of the variation in personal ratings and likely suffers from considerable omitted variable bias. The model does not
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include variables for several factors that influence personal ratings and may correlate with race,
such as the extent to which applicants’ essays and personal statements demonstrated their
abilities to overcome obstacles or personal achievements that might reasonably be perceived as
an indication of leadership ability or other personal strengths. [Oct. 31 Tr. 35:15–36:9].48
Third, as discussed supra at Section V.C, E, teacher and guidance counselor
recommendations seemingly presented Asian Americans as having less favorable personal
characteristics than similarly situated non-Asian American applicants, and the school support
ratings do not fully reflect more subtle racial disparities. As the experts’ analyses demonstrate,
some race-correlated variation in teacher and guidance counselor recommendations is likely a
cause of at least part of the disparity in the personal ratings. See supra at Sections V.C, E.
Professor Card’s analysis shows that the school support ratings for Asian American applicants
are generally weaker than the ratings for white students when comparing white and Asian
American students who receive the same academic rating. [DX692 at 4]; see [DD10 at 68]. For
example, approximately 43% of white students who receive an academic score of 2 have school
support ratings (from their two teacher and one guidance counselor recommendations) that sum
48 Speculating on how unobserved variables may be influencing the model’s implied effect of race on the personal ratings is fraught with difficulty. Although the Court has not received statistical evidence on the effect of race on specific high school achievements, it is likely that some high school achievements are themselves effected by racial biases. One might question the effect, positive or negative, of being Asian American on the probability of being selected to a leadership position such as class president, captain of a sports, math, or debate team, or the likelihood of being identified as an outspoken advocate, a natural leader, or an intellectual superstar. Professor Arcidiacono’s models account for some of these considerations, to some degree, through inclusion of the school support ratings, but much of the variation in applicants’ qualities cannot easily be boiled down to econometrically digestible variables. [Oct. 31 Tr. 35:15–36:9]. It is possible that Asian American applicants to Harvard are being disadvantaged by biases in their high schools that affect their college applications. Admissions officers have no easy mechanism to measure or correct for these biases, except to carefully review individual applicants in a holistic way and to recognize and consider applicants’ accounts of how their racial identities have shaped their pre-college experiences.
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to 7 or less (indicating very strong recommendations), while only about 37% of Asian American applicants with an academic score of 2 receive similarly strong school support ratings. [Oct. 31 Tr. 55:11–56:2]. Because teacher and guidance counselor recommendation letters are among the most significant inputs for the personal rating, the apparent race-related or race-correlated difference in the strength of guidance counselor and teacher recommendations is significant. See [id. at 54:6–56:2; DD10 at 67–68]. The Court reiterates that to the extent that disparities in the personal ratings are explained by teacher and guidance counselor recommendation letters, Harvard’s admissions officers are not responsible for any race-related or race-correlated impact that those letters may have.
Additionally, correlation between race and the personal and school support ratings does not clearly demonstrate a causal relationship, given the correlation between race and numerous factors that likely influence teacher and guidance counselor recommendations and admissions officers’ evaluation of personal and overall strength. For example, a privileged student and a disadvantaged student with the same academic performance may well not receive similar teacher and guidance counselor recommendations. Similarly, a student that works part time and a student that does not may receive different recommendations even with the same academic performance and without reference to race, but if working outside of school correlates to race and informs teacher, guidance counselor, and admissions officers’ evaluation of applicants, the school support and personal ratings may correlate with race, although race might not be the cause of the differential. In other words, race-correlated disparities in personal ratings for applicants who have similar academic qualifications may reflect underlying differences in the backgrounds and experiences of applicants that happen to correlate with race but are not racially motivated. That being said, it is not clear that these sorts of considerations adequately explain the difference
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in personal ratings between white and Asian American applicants in Professor Arcidiacono’s decile analysis or the similar analysis Professor Card has offered.
Overall, the disparity between white and Asian American applicants’ personal ratings has not been fully and satisfactorily explained. Because some of the disparity in personal ratings is due to teacher and guidance counselor recommendations, the issue becomes whether the remaining disparity reflects discrimination. The disparity in personal ratings between Asian American and other minority groups is considerably larger than between Asian American and white applicants and suggests that at least some admissions officers might have subconsciously provided tips in the personal rating, particularly to African American and Hispanic applicants, to create an alignment between the profile ratings and the race-conscious overall ratings that they were assigning. See [PD38 at 33]. It is also possible, although unsupported by any direct evidence before the Court, that part of the statistical disparity resulted from admissions officers’ implicit biases that disadvantaged Asian American applicants in the personal rating relative to white applicants, but advantaged Asian Americans over whites in the academic rating.
Further, the Court cannot accurately estimate what portion of the difference in the personal ratings resulted from the strength of the personal qualities that Harvard seeks to measure or from differences in how Asian American applicants are presented to Harvard by high schools relative to other applicants, as opposed to being the effect of implicit biases. Taking account of all the available evidence, it is possible that implicit biases had a slight negative effect on average Asian American personal ratings, but the Court concludes that the majority of the disparity in the personal rating between white and Asian American applicants was more likely caused by race-affected inputs to the admissions process (e.g. recommendations or high school
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accomplishments) or underlying differences in the attributes that may have resulted in stronger personal ratings.
3. Regression Models of the Academic, Extracurricular, and Overall Ratings Unlike the personal ratings, the experts agree that the academic and extracurricular variables should be included in the admissions outcome model and that the overall rating should not be included because Harvard acknowledges that it is directly affected by racial identity. See [PD38 at 26; DD10 at 46–47]. Nevertheless, because the profile ratings may all be impacted by race in a very marginal manner, the Court will briefly discuss the econometric models of these variables. Professor Arcidiacono’s logistic regression models for the academic, extracurricular, and overall ratings suggest a non-uniform effect of Asian American identity on those ratings. [Oct. 25 Tr. 91:11–92:20, 109:23–110:13; PD38 at 28–33]. The academic and extracurricular ratings models return positive coefficients for Asian American identity, while the overall rating model returns a negative coefficient for Asian Americans (with the exception of disadvantaged Asian American females). See [Oct. 25 Tr. 92:24–94:10, 107:8–13, PD38 at 29, 32–33]. A comparison between the strength of Asian American applicants on the observable characteristics included in Professor Arcidiacono’s academic and extracurricular rating models and the coefficients for Asian American groups suggests that Asian Americans have traits, other than their racial identity, that make them likely to score well in academic and extracurricular ratings. [Oct. 25 Tr. 107:8–110:17; PD38 at 32–33]. This implies that the positive coefficients for Asian American identity in the academic and extracurricular ratings models are likely at least partially the result of unobservable characteristics that correlate with race, and Professor Arcidiacono has posited that is indeed likely the cause. [Oct. 25 Tr. 108:24–109:8, 110:14–17]. The Court finds, however, that although omitted variables are likely partially responsible for the positive coefficients for Asian American identity in Professor Arcidiacono’s models for the
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academic and extracurricular ratings, those coefficients could also partially be the result of slight implicit bias that favors Asian Americans in these areas.
Professor Arcidiacono’s model of the overall rating yields negative coefficients for Asian American males and non-disadvantaged Asian Americans females. [PD38 at 29]. This suggests that Asian Americans who are not also disadvantaged females might receive lower overall ratings because of their racial identity relative to similarly-situated white applicants, see [Oct. 25 Tr. 92:20–94:10; PD38 at 29], but the result is subject to substantially the same criticism that Harvard lodges against Professor Arcidiacono’s admissions outcome model, namely that Professor Arcidiacono’s modeling choices do not fully reflect the actual admissions process and that his decision to exclude ALDC applicants was results-driven. Regardless, the Court finds it unnecessary to delve further into the overall rating disparity because it is the odds of admission, not an apparent disparity in the odds of receiving a high overall rating, that is primarily at issue, and Harvard acknowledges and intends that race may be factored into the overall rating. See [Oct. 18 Tr. 167:17–168:6].
F. Regression Models of Admissions Outcome As noted supra at Section V.D, both Professors Arcidiacono and Card prepared models of domestic non-transfer applicants’ probability of admission to Harvard based on a wide array of variables. [Oct. 25 Tr. 21:18–23:23, 215:12–15; Oct. 30 Tr. 176:18–177:7]. Professor Card’s preferred model returns a negative coefficient for Asian American identity (suggesting a lower likelihood of admission), but the relationship is slight, not statistically significant, and is positive (suggesting an increased likelihood of admission) for some class years. [Oct. 30 Tr. 129:9–16,
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132:21–134:11; DX685; DD10 at 30].49 Professor Arcidiacono’s preferred model returns a statistically significant negative coefficient for non-ALDC Asian American applicants, which implies a penalty for non-ALDC Asian American applicants relative to non-ALDC white applicants. [Oct. 25 Tr. 115:1–118:10; PD38 at 34].
Professors Card’s and Professor Arcidiacono’s preferred models differ in the following significant respects: (1) Professor Arcidiacono interacts race and disadvantaged status; (2) Professor Arcidiacono excludes the personal rating from the model; (3) Professor Arcidiacono excludes ALDC applicants; (4) Professor Arcidiacono pooled the 2014–2019 applicant data into a single model with effects for class years, whereas Professor Card used separate year-by-year models and thereby allowed the effect of variables to vary by admissions cycle; and (5) Professor Arcidiacono excludes parental occupation, intended career, and an indicator for whether applicants interviewed with a staff member. See [Oct. 31 Tr. 88:21–91:23; DD10 at 84]. For the reasons discussed below, the Court finds both experts’ approaches to be econometrically defensible, but prefers Professor Arcidiacono’s approach with respect to interacting race and disadvantaged status and prefers Professor Card’s inclusion of ALDC applicants, use of year-byyear models, and inclusion of parental occupation, intended career, and staff interview variables, and finds models with and without the personal rating to be worthy of consideration.
Professor Arcidiacono reasonably interacted race and disadvantaged status. [Oct. 25 Tr. 150:11–19]. This approach is consistent with the approach taken by OIR in response to Dean
49 Professor Card also modeled the admissions outcomes for two subgroups of Asian Americans: females and applicants from California. He found that Asian American identity within these subgroups returned positive coefficients that were not statistically significant. [Oct. 25 Tr. 154:7–155:3; Oct. 30 Tr. 136:8–137:8]. These models show that to the extent biases influenced the admissions process, those biases were not uniform across the Asian American applicant population.
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Fitzsimmons’ request and reflects the possibility of some interaction between race and disadvantaged status. See [Oct. 17 Tr. 127:22–129:17; Oct. 25 Tr. 150:11–151:1; PX26]. It was not unreasonable, however, for Professor Card not to interact the selected variables. The inclusion of these interaction terms has only a modest impact on the average marginal effects of Asian American identity generated by the admissions models, and their inclusion alone does not result in Asian American identity having a statistically significant effect when the terms are added to Professor Card’s model. [Oct. 31 Tr. 89:11–18; DD10 at 84].
There is a reasonable econometric basis for removing the personal ratings from the admissions models given the possibility that the personal ratings are affected by race. See [Oct. 25 Tr. 91:17–92:1]. Removing the personal rating, however, expands the omitted variable bias because the relationship between race and the personal rating is likely partially reflective of biases external to the Admissions Office, characteristics that are correlated with race, and life experiences that are impacted by race. See supra at Section V.C. Therefore, although the Court believes that including the personal rating results in a more comprehensive analysis, models with and without the personal rating are econometrically reasonable and provide evidence that is probative of the effect of race on the admissions process.
Professor Card’s inclusion of ALDCs in the admissions model is preferred by the Court. Although ALDCs benefit from sizable tips owing to their respective statuses as recruited athletes, legacies, dean’s or director’s list members, or children of faculty or staff, they are evaluated through the same basic admissions process as other applicants and their admission outcomes provide data that is probative of whether Harvard is discriminating against Asian Americans. [Oct. 17 Tr. 203:19–22; Oct. 25 Tr. 30:13–31:3, 233:25–234:3]. Including ALDCs in the model is particularly warranted where they account for approximately 30% of Harvard’s
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admitted students and therefore provide a significant portion of the datapoints for admitted students. [DX706, DD10 at 38].
Professor Arcidiacono acknowledges that Asian American ALDCs are not discriminated against. See [Oct. 25 Tr. 120:23–126:8]. His corresponding suggestion that only non-ALDC Asian Americans face discrimination in the admissions process is inadequately supported by non-statistical evidence. Further, it does not seem likely that Harvard would discriminate against non-ALDC Asian Americans, but not discriminate against ALDC Asian American applicants or that there would be a race-related explanation for treating the two groups differently, especially given the Court’s conclusion based on the testimony of Harvard’s admission officers that any race-related discrimination against Asian American applicants relative to white applicants is unintentional. Additionally, the tips that only ALDCs receive, for example for being recruited athletes, can be adequately accounted for through the inclusion of variables for those characteristics. See [Oct. 30 Tr. 157:24–158:14]. Overall, including ALDCs leads to a model that more accurately reflects how the admissions process works and takes into account a larger percentage of the admitted class. In the view of the Court, looking at only a portion of a class or carving out the segments where there is less likely to be discrimination distorts the analysis just as carving out the segments where there is mostly likely to be discrimination would do the same but to the benefit of the other party. [Id. at 166:21–167:20].
For similar reasons, Professor Card’s modelling of each individual admissions cycle is preferable to Professor Arcidiacono’s pooling of applicants from the six admissions cycles of available data. Professor Card’s year-by-year approach conforms to the reality that the effect of various characteristics in the admissions process may change slightly between years, as Harvard’s institutional interests or admissions policies shift or when the composition of the
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applicant pool changes. [Id. at 167:25–170:15]; see, e.g., [DX703; DX704]. Further, modeling each annual admission cycle independently recognizes that having a class that is 30% African American one year and 0% the next is not the same as having 15% each of those years. Professor Arcidiacono pooled the admissions cycles to achieve a more precise estimate of the effect of Asian American racial identity, but Professor Card’s model achieves a lower standard error, which is an indication of the precision of the model. [Oct. 30 Tr. 172:21–175:18; DD10 at 45].
Professor Arcidiacono omitted intended career, staff interview indicator, and parental occupation from his model. [Oct. 25 Tr. 145:21–148:12]. The Court prefers a model that includes these variables because they play a role in the admissions process. [Oct. 26 Tr. 8:25– 9:21, 10:17–11:6; Oct. 31 Tr. 9:3–7]. Further, these variables correlate with race and therefore create a significant potential for omitted variable bias if excluded. [Oct. 31 Tr. 10:16–18, 11:15– 12:21, 21:19–22:14; DX677; DX681; DD10 at 54]. Professor Arcidiacono excluded these variables primarily because of data issues, including unexplained year-to-year fluctuations in the distribution of parental occupation and intended career categorizations. [Oct. 25 Tr. 145:21– 148:12; DD10 at 50–52, 56]. As examples, numerous parents who were categorized as having low-skill jobs for the class of 2014 would likely have been categorized as being self-employed for the class of 2015, and there is a substantial decrease in the number of parents categorized as unemployed among applicants to the class of 2017 versus the class of 2018. [Oct. 25 Tr. 146:4– 147:9; DD10 at 51–52]. Although the data for parental education and intended career are not as consistent year-to-year as would be ideal, including the variables is preferable because their exclusion results in omitted variable bias that exaggerates the effect of race that is implied by the models. [Oct. 30 Tr. 146:18–147:6; DX695; DD10 at 35]. Professor Card’s model deals
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effectively with data categorization inconsistencies by treating each admission cycle separately, and SFFA has not shown that the data is unreliable within any admissions cycle. [Oct. 30 Tr. 169:12–24]. This data might well need to be excluded if using one data pool for all admission years, but there is no need to exclude it when modeling admissions decisions year-by-year.
Professor Card included a staff interview indicator variable, while Professor Arcidiacono excluded the indicator based on his conclusion that the score from an interview should matter, not whether an applicant was interviewed. [Oct. 25 Tr. 148:13–18]. Interviewing with an Admissions Office staff member seemingly affects an applicant’s probability of admission to Harvard, perhaps because it provides an applicant with a potential advocate in the Admissions Office irrespective of how well the applicant performs in that interview, and the Court concludes that including the indicator variable is preferable. See [Oct. 31 Tr. 25:7–27:8].
The Court finds that Professors Card and Arcidiacono each presented a viable econometric model but will rely on Professor Card’s model with the interaction terms utilized by Professor Arcidiacono and then consider results both with and without the personal rating variable included. This model would return a slightly negative coefficient and average marginal effect for Asian American identity, but that coefficient is only statistically significant in the version of the model where the personal rating variable is excluded. See [Oct. 30 Tr. 146:6–17; DD10 at 35]. In fact, without any modifications, Professor Card’s model returns a slight positive average marginal effect for Asian American identity in three of the six admission cycles that the experts analyzed. [DD10 at 30]. Whether the personal rating variable is included or not, the lower probability of admission to Harvard that appears associated with Asian American identity is slight, with an average marginal effect of Asian American racial identity on admissions probability that is well below minus one percentage point (i.e. closer to zero). The model does
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not demonstrate any intent by admissions officers to discriminate based on racial identity, and the implied effect is so slight that it is possible that the coefficient would be positive, at least with the personal rating included, if the model was better able to account for unobserved factors. It is also possible that the negative coefficient and average marginal effect reflect a very slight implicit bias that could have played a modest role in lowering Asian Americans’ admissions probability in some of the 2014–2019 admissions cycles. If so, the effect was so slight that it went unnoticed by careful and conscientious observers within the Admissions Office. The implied effect varies by admissions cycle and, with the personal rating variable included, results in a positive, statistically insignificant effect for the 2019 class year, which suggests, even though the change is not statistically significant, that any implicit biases against Asian Americans dissipated or were eliminated after the Admissions Office was confronted with the allegations at issue here. See [Oct. 30 Tr. 163:22–164:22; DD10 at 41].
G. Absence of Statistical Support for Racial Balancing or Quotas Harvard does not have any racial quotas and has not attempted to achieve classes with any specified racial composition. [Oct. 18 Tr. 112:1–21, 197:16–19; Oct. 19 Tr. 65:13–25, 197:14–20; Oct. 24 Tr. 123:15–18, 174:10–18, 210:2–9; Nov. 1 Tr. 249:24–250:6]. As discussed supra at Section III.B.4, Harvard evaluates the likely racial composition of its class and provides tips to applicants to help it achieve a diverse class. Those tips are necessary to achieve a diverse class given the relative paucity of minority applicants that would be admitted without such a tip. In trying to assure a diverse class, when reviewing an individual applicant, the admissions officers consider various qualitative and numerical indicators of diversity, including the racial composition of the group of students who are expected to be admitted. Although Harvard tracks and considers various indicators of diversity in the admissions process, including race, the racial composition of Harvard’s admitted classes has varied in a
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Case 1:14-cv-14176-ADB Document 672 Filed 09/30/19 Page 81 of 130 manner inconsistent with the imposition of a racial quota or racial balancing. See [Oct. 31 Tr. 119:10–121:10; DX711]. As Figures 1 and 2 show, there has been considerable year-to-year variation in the portion of Harvard’s class that identifies as Asian American since at least 1980. See [DX711 at 2; DD10 at 100–101].
Figure 1: Percent Change in Year-to-Year Admittance of Students by Race. [DD10 at 100; DX711].
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The Court finds that the statistical evidence shows that Harvard has not imposed racial quotas or otherwise engaged in impermissible racial balancing. VI. FINDINGS OF FACT: RACE-NEUTRAL ALTERNATIVES
Under the strict scrutiny rubric established by the Supreme Court, Harvard may consider race to achieve diversity only if there is no workable race-neutral alternative to the consideration of race to ensure a sufficiently diverse class. SFFA introduced models on race-neutral alternatives through an expert, Richard Kahlenberg.50 The Smith Committee’s conclusions and the analysis performed by Professor Card and Mr. Kahlenberg all convincingly establish that no workable race-neutral alternatives will currently permit Harvard to achieve the level of racial diversity it has credibly found necessary for its educational mission.
Harvard’s race-conscious admissions policy has a significant impact on the racial diversity of its class, with African American and Hispanic applicants being the primary beneficiaries in terms of their admissions probabilities. The policy of considering applicants’ race may improve the admission chances of some Asian Americans who connect their racial identities with particularly compelling narratives, but overall results in fewer Asian American and white students being admitted. See [Oct. 31 Tr. 127:22–128:15]. Any race-neutral alternative will be deemed workable only if it would allow Harvard to achieve the benefits that it derives from its current degree of diversity within a given class year, while also being practicable, affordable, and not requiring a material decline in academic quality or any of the other measures of excellence valued by Harvard.
50 Mr. Kahlenberg is a senior fellow at The Century Foundation, where he has worked for the last twenty years. He graduated from Harvard College in 1985 and received a juris doctor from Harvard Law School in 1989. Mr. Kahlenberg has published works on numerous socioeconomic subjects, including the use of race-neutral alternatives in college admissions. [Oct. 22 Tr. 7:15– 12:10].
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Currently, although always considered in conjunction with other factors and metrics, race is a determinative tip for approximately 45% of all admitted African American and Hispanic applicants. See [DX721 at 1]. At least 10% of Harvard’s admitted class, including more than one third of the admitted Hispanics and more than half of the admitted African Americans, would most likely not be admitted in the absence of Harvard’s race-conscious admissions process. See [Oct. 31 Tr. 127:22–129:2; DX721; DD10 at 107].51 In the absence of any other adjustments to Harvard’s admissions policy, eliminating consideration of race would cause the African American representation at Harvard to decline from approximately 14% to 6% of the student population and Hispanic representation to decline from 14% to 9%. [Oct. 31 Tr. 126:21– 129:2]. Over the course of four years, the number of African American and Hispanic students at Harvard would fall by nearly 1,000 students. See [Oct. 25 Tr. 167:20–168:4; PD38 at 39].
The Court notes that Harvard’s current admissions policy does not result in underqualified students being admitted in the name of diversity—rather, the tip given for race impacts who among the highly-qualified students in the applicant pool will be selected for admission to a class that is too small to accommodate more than a small percentage of those qualified for admission.52 Therefore, removing attention to race, without a workable race-neutral alternative,
51 The econometric models fail to fully reflect the number of students for whom race is determinative. Among other factors, the increased Asian American representation that the models project would likely not include all Asian American students who are admitted under the current race-conscious approach. In the total absence of a race-conscious policy, some Asian American applicants who excelled on academic, athletic, or other metrics of success would likely replace some number of Asian American students from disproportionately less advantaged backgrounds who tell compelling stories about their personal identities that require an understanding of their race. See, e.g., [Oct. 18 Tr. 52:19–56:21; Oct. 29 Tr. 147:6–152:12]. 52 Moreover, other tips in the admissions process, like so many facets of modern-day American life, disproportionately benefit individuals in the majority and more affluent group.
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would cause a sharp decline in the percentage of African American and Hispanic students at Harvard without resulting in a particularly significant increase in the overall academic strength of the class.53
The parties’ experts, as well at the Smith Committee, examined numerous race-neutral alternatives to determine if they, alone or in combination, could conceivably limit the decline in racial diversity in Harvard’s class in the absence of a race-conscious admissions policy. See [Oct. 22 Tr. 18:1–11; Oct. 31 Tr. 129:3–130:4; PX316 at 6–18]. These alternatives included eliminating early action, tips for ALDC applicants, the practice of offering deferred admissions or z-listing applicants, and consideration of standardized test scores, as well as expanding recruiting and partnership efforts, admitting more transfer students, utilizing a place-based quota system, and expanding preferences for economically disadvantaged applicants. [Oct. 22 Tr. 33:15–49:8; Oct. 31 Tr. 130:5–130:23, 133:10–20; PX316 at 6–18; DD10 at 109]. As more fully set forth below, Harvard has demonstrated that none of these approaches, individually or in combination, would allow it to reach the level of racial diversity that it believes necessary to achieve its educational mission without significant consequences to the strength of its admitted class.
A. Eliminating Early Action In an earlier effort to both increase diversity and level the admissions playing field for less advantaged applicants, Harvard eliminated its early action program for the classes of 2012 through 2015, believing that early action disproportionately benefitted affluent applicants and hoping that other elite colleges would follow its lead, which they largely did not. [PX316 at 15].
53 Similarly, removing the tips for recruited athletes would result in a sharp decline in admitted athletes, removing the tips for children of faculty or staff would reduce their representation, and eliminating the tip for legacies would decrease their numbers as well. In other words, removing any tips changes the make-up of the admitted class, but not necessarily its overall quality.
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This actually had the unintended consequence of decreasing matriculation rates among some categories of African American and Hispanic applicants, apparently because the most qualified of those prospective applicants were choosing to attend other colleges that offered early admission or early decision. [Oct. 23 Tr. 156:17–157:22; DX39 at 2–4]. As a result, Harvard reinstituted an early action program for the class of 2016. [PX316 at 15; DX39 at 4]. Harvard’s actual experience is more probative of the probable result of such a change than econometric prognostications and shows that the likely effect of removing early action on African American and Hispanic enrollment is negative or near zero. [Oct. 31 Tr. 133:20–135:24; DX728 at 3]. As such, eliminating early action does not present a viable race-neutral option for achieving student body diversity.
B. ALDC Tips Preferences or tips for ALDC applicants and related deferred admissions also disproportionately benefit socioeconomically advantaged applicants. See [PX316 at 16–17]. Although removing tips for these applicants would improve socioeconomic diversity at Harvard and increase the number of Asian American students, it would not significantly increase the number of African American and Hispanic students if implemented alone. [Oct. 31 Tr. 131:8– 133:8; DX720; DD10 at 112]. Professor Card reasonably estimated that eliminating tips for race and ALDC status, along with eliminating deferred admissions, would cause African American enrollment to decline from 14% to 5% and Hispanic enrollment to decline from 14% to 9%. [Oct. 31 Tr. 132:15–133:19; DX720; DD10 at 112]. Eliminating tips for ALDC applicants would have the effect of opening spots in Harvard’s class that could then be filled through an admissions policy more favorable to non-white students, but Harvard would be far less competitive in Ivy League intercollegiate sports, which would adversely impact Harvard and the student experience. [Oct. 30 Tr. 40:12–41:21]. Eliminating tips for legacies, applicants on the
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dean’s and director’s interest lists, and children of faculty or staff would also come at considerable costs, and would adversely affect Harvard’s ability to attract top quality faculty and staff and to achieve desired benefits from relationships with its alumni and other individuals who have made significant contributions to Harvard. [Oct. 23 Tr. 164:19–167:2; Oct. 30 Tr. 20:17– 21:8, 35:25–43:13; PX316 at 16–17].
Therefore, eliminating tips for ALDC applicants and related deferred admissions practices is not alone an adequate race-neutral alternative given the limited probable impact on racial diversity and the likely adverse consequences for Harvard and student life. The Court notes that reasonable minds can differ on the importance of college athletics, alumni relations, and admitting the children of faculty and staff, but takes no position on these issues other than to note that these are topics best left to schools to figure out for themselves. As relevant here, eliminating these tips or preferences is largely unrelated to the goal of diversity or the issue of race, and in any event, is not a race-neutral alternative that would obviate the need for considering race in admissions.
C. Augmenting Recruiting Efforts and Financial Aid Harvard looked at expanding recruiting and partnership efforts and providing more financial aid as a way to increase diversity without having to consider race in the application process. The college already makes significant outreach efforts and provides exceptionally generous financial aid. [PX316 at 9–11]. In addition to the HFAI and UMRP programs discussed supra at Section III.A.2, the Smith Committee’s report describes additional community-based outreach efforts and considered but rejected the potential for pipeline programs that are inconsistent with Harvard’s recruitment goals. [PX316 at 10]. Harvard has already reached, or at least very nearly reached, the maximum returns in increased socioeconomic and racial diversity that can reasonably be achieved through outreach and
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reducing the cost of a Harvard education. See [Oct. 31 Tr. 158:15–161:2; PX316 at 10–11; DD10 at 131–133].
D. Increasing Diversity by Admitting More Transfer Students Harvard might also increase diversity by admitting, as transfers, students who might not have applied or been accepted to Harvard at the outset. For example, it is conceivable that if Harvard expanded its efforts to attract and admit transfer students, it might be able to admit some transfer applicants who did not have the perspective to see attending Harvard as an option or who excelled during two years at another college, thereby demonstrating an academic prowess that might not have been evident right out of high school. Despite the facial appeal of these scenarios, Harvard has demonstrated that accepting an increased number of transfer applicants is also not a viable race-neutral alternative because these applicants are, on average, less diverse and less qualified than applicants to its freshman class. [Oct. 31 Tr. 146:24–149:21; DX730; DD10 at 124–125]. Further, Harvard operates as a four-year residential college and the number of transfer students that it can admit is constrained by the number of available beds, meaning that there is not room for transfer students unless other class members drop out. [PX316 at 12–13]. E. Eliminating Standardized Testing Eliminating consideration of standardized testing is likewise not an adequate race-neutral alternative to considering race in the admissions process. Harvard considers standardized tests to be reflective of academic or intellectual strength and uses SAT and ACT test scores in assigning academic ratings. [PX721 at 4]. Harvard has demonstrated that eliminating consideration of standardized test scores in the admissions process would lead to a reduction in the academic qualifications of its admitted class, at least as measured by the criteria Harvard presently uses. [Oct. 31 Tr. 143:23–146:11; DX722 at 3; DD10 at 121]. As the Smith Committee found, standardized tests are “imperfect measures,” but they can be a useful metric when considered in
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tandem with an applicant’s background. [PX316 at 18]. Although eliminating consideration of standardized test scores might improve diversity slightly, the effects on the academic strength of Harvard’s admitted class makes eliminating the consideration of standardized test scores an unviable race-neutral alternative. See [Oct. 31 Tr. 153:4–154:17; DX723 at 3].
F. Place-Based Quotas The Smith Committee considered place-based quotas, such as admitting the top student from each high school class or from each zip code. [PX316 at 11–12]. Harvard’s evaluation and rejection of these ideas reflects the reality that Harvard is far too selective and high schools and zip codes in the United States too numerous for such an admissions policy to be even close to workable. [Oct. 22 Tr. 107:6–108:2]. Harvard could achieve somewhat improved racial diversity in the absence of a raceconscious admissions policy by increasing the tips for students from disadvantaged economic backgrounds and areas. Under any reasonable implementation, however, this race-neutral approach would result in fewer African Americans than are admitted under the current system and would also come at the expense of traditional measures of academic strength, such as SAT scores. See [Oct. 22 Tr. 125:6–10, 126:17–127:23; PD27; PD29; PD31; PD33]. Mr. Kahlenberg proposes a quota system where Harvard commits to enrolling students from broad neighborhood clusters constructed to generate more representation from racially diverse and disproportionately economically disadvantaged areas, [Oct. 22 Tr. 35:23–36:16], but given the logistical challenges of such an arrangement coupled with the questionable legality of any sort of quota system, as discussed infra at Section VII.G, place-based quotas are not an available and workable race-neutral alternative.
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G. SFFA’s Proposed Combinations of Various Race-Neutral Alternatives Mr. Kahlenberg presented four simulations, labeled A, B, C, and D, that model the combined effect of various allegedly race-neutral alternatives on Harvard’s class. [Oct. 22 Tr. 16:7–14, 29:20–47:6]. The simulations, using the admissions models developed by Professors Card and Arcidiacono with the models’ implied racial tips removed, project the diversity of Harvard’s class with various modifications to the models that are aimed at increasing racial diversity by increasing the tip given to economically disadvantaged applicants, further preferencing applicants from disadvantaged geographic areas, and by removing preferences currently used in Harvard’s admissions process for ALDC students or LDC students that disproportionately benefit white applicants. [Oct 22 Tr. 27:11–27:7].54 These simulations show that Harvard could achieve a significant increase in socioeconomic diversity and an increase in the total representation of African American, Hispanic and other (i.e. non-white and non-Asian American) students in its classes but only if it abandoned all preferences for legacies, applicants on the dean’s or director’s interest lists, and children of faculty or staff, and implemented a sizable tip based on economic and geographic indicators of disadvantage. See [PD27; PD29;
54 In all of the simulations, the implied effects of tips given to LDCs are removed. [Oct. 22 Tr. 34:17–35:9; PD32]. Simulation B, which utilizes Professor Card’s model and simulation, projects the effect of removing preferences for recruited athletes as well. [Id. at 41:3–42:9]. The simulations all impose some form of a socioeconomic and/or geographic status boost. [PD32]. Model A expands the boost associated with disadvantaged status such that it is half the magnitude of the tip that the model suggests is currently granted to recruited athletes and forces equal selection of applicants from 33 neighborhood clusters, [Oct. 22 Tr. 35:23–36:16]; Model B boosts for socioeconomically disadvantaged students based on census tract income, [id. at 41:20– 42:1]; and Simulations C and D modify the socioeconomic and census tract boost used in Simulation B and consider whether an applicant attended a disadvantaged high school, [id. at 43:7–44:16]. Models A and C also remove the admissions models’ implied preference for early action applicants, while models B and D include that preference. [Id. at 42:2–3, 46:10–12; PD32].
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PD31; PD33]. For example, Simulation D projects that 49% of Harvard’s class would be from an economically disadvantaged background, relative to the 12% in the class of 2019. [PD33].
Mr. Kahlenberg’s changes to the admissions policy would come at significant costs. In addition to the loss of benefits provided by tips for ALDCs or LDCs, the simulations show a 53 to 71-point decline in average SAT scores. [PD27; PD29; PD31; PD33]. These declines in average SAT score would be associated with more significant declines in the expected strength of Harvard’s class across the profile ratings, with the amount of the expected decline varying depending on the simulation selected. For example, under Simulation C, the portion of the admitted class achieving a 1 or 2 in each profile rating falls by between 13% and 26%. [DX729 at 11; DD10 at 141]. The simulations also imply substantial changes to the academic interests of Harvard’s admitted classes that would pose administrative and staffing challenges. [DX729]. For example, Mr. Kahlenberg’s models would likely lead to more students being admitted who indicated an intended concentration in engineering and fewer admitted students who intend to concentrate in the humanities, which would likely require Harvard to expand and contract its academic programs accordingly.
Finally, and perhaps most significantly for present purposes, Mr. Kahlenberg’s simulations uniformly suggest that African American representation in Harvard’s incoming class would fall nearly one-third to approximately 10% of the class. [Oct. 22 Tr. 127:16–23]. In order to achieve, without race-conscious policies, comparable numbers of African American students in its admitted classes to those Harvard currently achieves, Harvard would likely need to eliminate all ALDC preferences, eliminate consideration of standardized tests, significantly expand the tip for disadvantaged applicants, and find a way to increase the number of disadvantaged applicants so that more of those disproportionately minority applicants could be
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admitted. [Oct. 31 Tr. 153:4–154:3; DX723 at 1]. These changes, even assuming they could be achieved, would result in a significant decline in the strength of Harvard’s admitted classes across multiple dimensions, including its potential for academic and scholarly achievement. See [Oct. 31 Tr. 154:2–24; DX723 at 3; DD10 at 127].
Harvard plausibly concludes that reshaping its incoming classes in this way would have negative effects on Harvard’s attractiveness to potential students, adversely affect the educational experience at Harvard generally, and that the resulting decrease in the number of African American students would exacerbate “feelings of isolation and alienation among racial minorities in Harvard’s community.” See supra at Section III.A.1; [PX316 at 8].
The Court therefore concludes that Harvard has demonstrated that there are no workable and available race-neutral alternatives, singly or taken in combination, that would allow it to achieve an adequately diverse student body while still perpetuating its standards for academic and other measures of excellence. This conclusion is corroborated by the work of the experts retained by both sides, none of whom have proposed alternatives that would allow Harvard to meet its diversity goals while not unduly compromising on its other legitimate institutional objectives. VII. CONCLUSIONS OF LAW
A. Overview The Court first affirms its previously expressed view that SFFA has standing and then turns to SFFA’s four pending Title VI claims: impermissible racial balancing (Count II), failure to use race merely as a “plus factor” (Count III) the availability of race-neutral alternatives (Count V), and intentional discrimination (Count I). Ultimately, the Court finds that Harvard has met its burden of showing that its admissions process complies with the principles articulated by
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the Supreme Court in Fisher II, 136 S. Ct. at 2208, and concludes that judgment must issue for Harvard on each of the remaining claims.
B. SFFA Has Standing The constitutional extent of federal court jurisdiction is limited by Article III, which provides that “judicial power” extends to “Cases” and “Controversies” that, inter alia, arise “under this Constitution [or] the Laws of the United States.” U.S. Const. Art. III § 2, cl. 1. “Over the years, [Supreme Court] cases have established that the irreducible constitutional minimum of standing contains three elements:” (1) “an injury in fact—an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical;” (2) “a causal connection between the injury and the conduct complained of—the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court;” and (3) “it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992) (citations and modifying punctuation omitted). “The party invoking federal jurisdiction bears the burden of establishing these elements.” Id. Under the doctrine of associational standing, “an association may have standing solely as the representative of its members even in the absence of injury to itself, in certain circumstances.” Camel Hair & Cashmere Inst. of Am., Inc. v. Associated Dry Goods Corp., 799 F.2d 6, 10 (1st Cir. 1986). As the Supreme Court has held: [A]n association has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. Hunt v. Wash. State Apple Advert. Comm’n, 432 U.S. 333, 343 (1977).
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During this litigation, SFFA demonstrated that its members included individuals who had standing to pursue this litigation on their own, that this litigation was germane to SFFA’s purpose, and that the injunctive relief SFFA seeks does not require the participation of those members in this lawsuit. See Students for Fair Admissions, 261 F. Supp. 3d at 110–11. Harvard argued at the summary judgment stage that the case had become moot because the SFFA members who the Court found had individual standing were no longer participating in the college admissions process or seriously interested in transferring. “Mootness usually results when a plaintiff has standing at the beginning of a case, but, due to intervening events, loses one of the elements of standing during litigation . . . .” Wild Earth Guardians v. Pub. Serv. Co. of Colo., 690 F.3d 1174, 1182 (10th Cir. 2012) (citing Arizonans for Official English v. Arizona, 520 U.S. 45, 68 n.22 (1997)). At summary judgment, the Court found that “Harvard ha[d] not established that the case ha[d] become moot based on the [members’] alleged disinterest in transferring.” Students for Fair Admissions, 346 F. Supp. 3d at 191 (D. Mass. 2018). Harvard now asserts that the Court should have applied a more stringent standard, including requiring SFFA to show that its members control its conduct and possess certain “indicia of membership.” [ECF No. 619 ¶¶ 326–30]. Harvard’s standing arguments are preserved for appeal.
C. The Supreme Court and Race-Conscious Admissions Although this Court, as it must, relies principally on the Supreme Court’s most recent guidance as set forth in Fisher II, a brief synopsis of the case law which culminated in Fisher II follows. The Supreme Court directly confronted the issue of affirmative action or race-conscious admissions in the context of higher education for the first time in Regents of University of California v. Bakke, 438 U.S. 265 (1978) (plurality opinion). In that case, the Supreme Court struck down an admissions policy at the University of California at Davis Medical School
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pursuant to Title VI and the Equal Protection Clause. Bakke, 438 U.S. at 271 (1978). At that time, the Medical School admitted most of its minority students through a “special admissions program” that filled 16 of the class’ 100 spots with economically or educationally disadvantaged applicants who were members of a minority group. Id. at 272–75. White applicants could compete for 84 of the seats in the Medical School’s class, while all 100 seats were potentially open to minority students. Id. at 289.
Justices Brennan, White, Marshall, and Blackmun would have found Title VI coextensive with the Equal Protection Clause and upheld the medical school’s policy on the basis that the government may use race to remedy disadvantages to minorities caused by past racial prejudice. Id. at 355, 324–79 (concurring in part and dissenting in part). Chief Justice Burger and Justices Stevens, Stewart, and Rehnquist would have found the special admissions program in violation of Title VI, irrespective of the Equal Protection Clause. Id. at 408–21. Justice Powell, who announced the judgment of the Supreme Court, agreed with Justices Brennan, White, Marshall, and Blackmun that Title VI proscribes only those racial classifications that would violate the Equal Protection Clause, but unlike his fellow justices, concluded that diversity was an asserted state interest that could withstand strict scrutiny and that to satisfy strict scrutiny, the medical school’s approach to diversity had to “encompass[ a broad] array of qualifications and characteristics of which racial or ethnic origin is but a single though important element.” Id. at 315. Although no majority agreed on a particular rationale, the Supreme Court determined that the medical school’s special admissions program was unconstitutional because it involved “the use of an explicit racial classification” that told “applicants who are not Negro, Asian, or Chicano that they [were] totally excluded from a specific percentage of the seats in an entering class.” Id. at 319.
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Nevertheless, a majority of the Supreme Court believed that race could be used in higher education admissions, and it was understood that Justice Powell’s opinion in Bakke permitted the use of race or ethnic background as a “plus” factor to further the goal of diversity in education. Justice Powell attached the Harvard College Admissions Program as an appendix to his opinion in Bakke and used it as a basis to conclude that the “assignment of a fixed number of places to a minority group is not a necessary means toward” diversity. Id. at 316, 321–24. In contrast with Harvard’s admissions process, which purported to treat “each applicant as an individual in the admissions process” and did not foreclose applicants from competing for the last available seat “simply because he was not the right color or had the wrong surname,” id. at 318, the “fatal flaw” in the medical school’s “preferential program” was its “disregard of individual rights,” id. at 320.
Twenty-five years later, the Supreme Court revisited the subject of racial preferences in higher education admissions in a pair of cases concerning the University of Michigan’s Law School and its College of Literature, Science, and the Arts. In Grutter v. Bollinger, 539 U.S. 306 (2003), the Supreme Court concluded that the admissions process at the University of Michigan Law School was constitutionally permissible. 539 U.S. at 325. The law school considered applicants with a focus on academic ability coupled with a flexible assessment of applicants’ talents, experiences, and potential to contribute to the learning of those around them. Id. at 315. Admissions officials were required to consider all the information available in an applicant’s file, including a personal statement, letters of recommendation, undergraduate grades, admissions test scores, and an essay describing the ways the applicant would contribute to the life and diversity of the law school. Id. at 315. While not restricting the types of diversity eligible for consideration or defining diversity solely in terms of racial or ethnic status, the law school was
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committed to “racial and ethnic diversity with special reference to the inclusion of students from groups which have been historically discriminated against.” Id. at 316.
In deciding Grutter, the Supreme Court clarified that strict scrutiny applies to the use of race in college admissions, agreed that the law school had a compelling interest in obtaining the educational benefits that flow from a diverse student body, and concluded that the law school’s race-conscious admissions process was sufficiently narrowly tailored. Id. at 333–34. The Supreme Court found that the law school’s goal of “enroll[ing] a critical-mass of minority students,” did not run afoul of the requirement that a school not attempt to attain “some specified percentage of a particular group merely because of its race or ethnic origin,” which would “amount to outright racial balancing” and be “patently unconstitutional.” Id. at 329–30 (quoting Bakke, 438 U.S. at 307). Instead, as distinct from a quota, the concept of “critical mass [was] defined by reference to the educational benefits that diversity is designed to produce,” including racial understanding, breaking down stereotypes, advancing learning outcomes, and preparing students for a diverse workforce and society. Id. at 330. The Supreme Court noted that the law school’s admissions program bore the hallmarks of a narrowly tailored plan: truly individualized consideration including the use of race in a “flexible, nonmechanical way,” no quotas or separate admissions tracks for members of certain racial groups, and no insulating “applicants who belong to certain racial or ethnic groups from the competition for admission.” Id. at 334.
In upholding the law school’s admissions process in Grutter, the Supreme Court again approved of “the Harvard plan,” as described by Justice Powell in Bakke. See id. at 335. Like Harvard, the University of Michigan Law School did not have a “quota,” meaning “a program in which a certain fixed number or proportion of opportunities are ‘reserved exclusively for certain minority groups.’” Id. (quoting Richmond v. J.A. Croson Co., 488 U.S. 469, 496 (1989)
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(plurality opinion)). Rather, the law school pursued a “permissible goal” that “require[d] only a good-faith effort to come within a range demarcated by the goal itself,” and “permit[ed] consideration of race as a ‘plus’ factor in any given case while still ensuring that each candidate ‘competes with all other qualified applicants.’” Id. (punctuation omitted) (first quoting Sheet Metal Workers v. EEOC, 478 U.S. 421, 495 (1986) and then quoting Johnson v. Transp. Agency, Santa Clara Cty., 480 U.S. 616, 638 (1987)). The Court noted that the Harvard plan, previously endorsed by Justice Powell in Bakke, “certainly had minimum goals for minority enrollment, even if it had no specific number firmly in mind,” but it reiterated that Justice Powell had “flatly rejected the argument that Harvard’s program was ‘the functional equivalent of a quota’ merely because it had some ‘plus’ for race, or gave greater ‘weight’ to race than to some other factors, in order to achieve student body diversity.” Id. (quoting Bakke, 438 U.S. 317–18, 323).
Further, like the Harvard plan, Michigan Law’s admissions process was “flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant, and to place them on the same footing for consideration, although not necessarily according them the same weight.” Id. (quoting Bakke, 438 U.S. at 317). Although race was given substantial weight in the admissions process, the law school also considered “the broad range of qualities and experiences that may be considered valuable contributions to student body diversity,” including fluency in several languages, a history of overcoming personal adversity and family hardship, exceptional records of extensive community service, and successful careers in other fields, and “actually [gave] substantial weight to diversity factors besides race.” Id. at 338.
While race may have been “‘outcome determinative for many members of minority groups[]’ who do not fall within the upper range of LSAT scores and grades,” that possibility
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was not dispositive given that “the same could be said of the Harvard plan discussed approvingly by Justice Powell in Bakke.” Id. at 338 (quoting Grutter, 539 U.S. at 389 (Kennedy, J., dissenting)). The Supreme Court noted in Grutter that “all underrepresented minority students admitted by the Law School [had] been deemed qualified,” although minority applicants were “less likely to be admitted in meaningful numbers on criteria that ignore[d]” race and experiences with racial inequality, which were of “particular importance to the Law School’s mission.” Id.
On the same day the Supreme Court decided Grutter, it held in Gratz v. Bollinger, 539 U.S. 244 (2003), that the admissions process at the University of Michigan College of Literature, Science, and the Arts violated Title VI and the Equal Protection Clause. Gratz, 539 U.S. at 275. The University of Michigan admitted or rejected applicants to the College of Literature, Science, and the Arts based on the number of points that an applicant scored under a rubric that offered points for high school GPA, standardized test scores, the academic strength of the applicant’s high school, the applicant’s high school curriculum, in-state residency, alumni relationship, personal essay, and other achievements. Id. at 255. Underrepresented minority applicants received an additional 20 points scored in a “miscellaneous” category which provided a significant bump towards the 75 to 100 points that were, depending on the year and the applicant’s in-state residency status, generally required for admission. Id. at 255–56, & n.8. The Supreme Court in Gratz concluded that the admissions policy was impermissible under Justice Powell’s opinion in Bakke because giving every underrepresented minority applicant 20 points did not provide the necessary “individualized consideration” and instead had “the effect of making ‘the factor of race . . . decisive’ for virtually every minimally qualified underrepresented minority applicant.” Id. at 271–72 (quoting Bakke, 438 U.S. at 317). The university’s use of
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race was therefore not narrowly tailored to achieve the asserted compelling interest in diversity and thus violated the Equal Protection Clause and Title VI. Id. at 275–76.
More recently, in the Fisher cases, the Supreme Court reviewed the undergraduate admissions program at the University of Texas at Austin (“UT Austin”), which considered race as one factor among many in assigning a personal achievement index which, together with an academic index, determined whether applicants who were not in the top 10% of their Texas high school class would be admitted or rejected. Fisher I, 570 U.S. at 304–07. In 2013 in Fisher I, the Supreme Court vacated the Fifth Circuit’s decision upholding UT Austin’s admissions program because the appeals court had not properly conducted the strict scrutiny analysis. Id. at 303. The Fifth Circuit had undertaken the narrow tailoring analysis with a degree of deference to the university, presuming that the school had made a good-faith decision to use race and then imposing the burden of rebutting that presumption on the plaintiff. Id. at 311–15. The Supreme Court concluded that no such deference to a university was permitted in undertaking the narrow tailoring analysis. Id.
Following remand, the Fifth Circuit found that UT Austin had demonstrated that the use of race in its admissions program was narrowly tailored to achieve the rich diversity that contributed to UT Austin’s academic mission and once again affirmed the district court’s judgment that UT Austin’s admissions program did not violate the Equal Protection Clause. Fisher v. Univ. of Tex. at Austin, 758 F.3d 633, 657, 659–61 (5th Cir. 2014). The Supreme Court granted certiorari once more, and in 2016 it affirmed the Fifth Circuit’s ruling. Fisher II, 136 S. Ct. at 2214–15.
In Fisher II, the Supreme Court stated the following three controlling principles: First, because racial characteristics so seldom provide a relevant basis for
disparate treatment, race may not be considered . . . unless the admissions process
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can withstand strict scrutiny. Strict scrutiny requires the university to demonstrate with clarity that its purpose or interest is both constitutionally permissible and substantial, and that its use of the classification is necessary to the accomplishment of its purpose.
Second, . . . the decision to pursue the educational benefits that flow from student body diversity is, in substantial measure, an academic judgment to which some, but not complete, judicial deference is proper. A university cannot impose a fixed quota or otherwise define diversity as some specified percentage of a particular group merely because of its race or ethnic origin. Once, however, a university gives a reasoned, principled explanation for its decision, deference must be given to the University’s conclusion, based on its experience and expertise, that a diverse student body would serve its educational goals.
Third, . . . no deference is owed when determining whether the use of race is narrowly tailored to achieve the university’s permissible goals. A university . . . bears the burden of proving a nonracial approach would not promote its interest in the educational benefits of diversity about as well and at tolerable administrative expense. Though narrow tailoring does not require exhaustion of every conceivable race-neutral alternative or require a university to choose between maintaining a reputation for excellence and fulfilling a commitment to provide educational opportunities to members of all racial groups, it does impose on the university the ultimate burden of demonstrating that race-neutral alternatives that are both available and workable do not suffice.
Id. at 2208 (citations and modifying punctuation omitted).
In applying these principles in Fisher II, the Supreme Court determined that UT Austin
had provided a reasoned and principled articulation of concrete and precise goals for its race-
conscious admissions program, including destroying racial stereotypes, promoting cross-racial
understanding, preparing the student body for an increasingly diverse workforce and society,
cultivating leaders with legitimacy in the eyes of the citizenry, providing an educational
environment that fosters the robust exchange of ideas, exposure to different cultures, and the
acquisition of the competencies required of future leaders. Id. at 2211. The Supreme Court
noted “that a university bears a heavy burden in showing that it had not obtained the educational
benefits of diversity before it turned to a race-conscious plan,” but found that UT Austin had
engaged in good faith studies from which it reasonably “concluded that ‘[t]he use of race-neutral
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policies and programs ha[d] not been successful in achieving’ sufficient racial diversity at the University,” and that this position was supported by both statistical and anecdotal evidence. Id. at 2211–12 (quoting the record). Lastly, none of the plaintiff’s proposed race-neutral alternatives, or any of the other proposals discussed in the course of the litigation, was shown to have been an “‘available’ and ‘workable’ means through which the University could have met its educational goals, as it then understood and defined them” without considering race, because “the Equal Protection Clause does not force universities to choose between a diverse student body and a reputation for academic excellence.” Id. at 2213–14 (quoting Fisher I, 570 U.S. at 312).
Most significantly, the controlling principles articulated by the Supreme Court in Fisher II reflect the sum of its holdings in cases concerning higher education admissions over the last forty years and now guide the application of Title VI in this case.
D. Harvard’s Admission Program and Strict Scrutiny Title VI provides, “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 42 U.S.C. § 2000d. In the higher education admissions context, the contours of Title VI claims are largely shaped by the Equal Protection Clause of the Fourteenth Amendment. The “intentional discrimination proscribed by Title VI is discrimination that violates the Equal Protection Clause of the Fourteenth Amendment.” Weser v. Glen, 190 F. Supp. 2d 384, 396 (E.D.N.Y.), aff’d, 41 F. App’x 521 (2d Cir. 2002); see Bakke, 438 U.S. at 284, 286 (noting that Title VI reflects a “congressional intent to halt federal funding of entities that violate a prohibition of racial discrimination similar to that of the Constitution,” but “proscribe[s] only those racial classifications that would violate the Equal Protection Clause or the Fifth Amendment”); see also
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Grutter, 539 U.S. at 343 (adopting reasoning in Bakke); Gratz, 539 U.S. at 276 n.23 (“We have explained that discrimination that violates the Equal Protection Clause of the Fourteenth Amendment committed by an institution that accepts federal funds also constitutes a violation of Title VI.” (first citing Alexander v. Sandoval, 532 U.S. 275, 281 (2001), then citing United States v. Fordice, 505 U.S. 717, 732, n.7 (1992), and then citing Alexander v. Choate, 469 U.S. 287, 293 (1985))).
Although Harvard is not a state actor, Harvard College is a component of Harvard University which receives federal funds and intentionally provides tips in its admissions process based on students’ race. See [ECF No. 570 at 9–10]. Harvard College is therefore subject to the same standards that the Equal Protection Clause imposes upon state actors for the purposes of a Title VI claim. See Students for Fair Admissions, 346 F. Supp. 3d at 192 n.16 (“Harvard does not identify any specific reasons for distinguishing public universities from federally-funded private universities, or explain how the analytical framework would differ for private versus public litigants . . . .”). Under Grutter, “strict scrutiny must be applied to any admissions program using racial categories or classifications.” Fisher I, 570 U.S. at 310; see also Grutter 539 U.S. at 326. Because Harvard both accepts federal funds and uses race in making admissions decisions, its admissions program is subject to strict scrutiny.
Harvard argues that the test for a “facially neutral policy” should be applied,55 but Harvard’s admissions process is not facially neutral. Fisher I, 570 U.S. at 307 (“It is . . .
55 The analysis of a facially neutral policy that has a disparate impact by race is different from the analysis of a policy that admittedly considers race. “In reviewing a uniformly applied facially neutral policy, ‘[d]etermining whether invidious discriminatory purpose was a motivating factor [in its adoption] demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available.’” Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 346 F. Supp. 3d 174, 193 (D. Mass. 2018) (quoting Anderson ex rel.
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irrelevant that a system of racial preferences in admissions may seem benign. Any racial
classification must meet strict scrutiny.”). Although Harvard’s reading procedures do not
explicitly preference particular racial groups, Harvard pursues its interest in diversity in part by
considering the race of applicants, and its admissions officers may take an applicant’s race into
account when making an admissions decision even when the applicant has not discussed their
racial or ethnic identity in their application. [Oct. 18 Tr. 52:15–53:13; 167:10–168:11].
Harvard’s acknowledged consideration of race is unlike a facially neutral policy which
requires plaintiffs to prove racial discrimination. Cf. Vill. of Arlington Heights v. Metro. Hous.
Dev. Corp., 429 U.S. 252, 270–71 (1977) (plaintiffs “failed to carry their burden of proving that
discriminatory purpose was a motivating factor” for a rezoning decision that did not explicitly
rely on race). Here, the use of race in and of itself is admitted, and the issue becomes whether it
is permissible given the justification and the means used to achieve the sought-after diversity—in
other words, whether Harvard’s use of race survives strict scrutiny. Notably, the Supreme Court
has consistently used strict scrutiny when reviewing school admissions programs that consider race.56
Dowd v. City of Boston, 375 F.3d 71, 83 (1st Cir. 2004)). Policies that do not explicitly consider race are facially neutral and violate the Equal Protection Clause based on statistical evidence only where they form a clear pattern, unexplainable on grounds other than race. See Yick Wo v. Hopkins, 118 U.S. 356, 374 (1886) (finding unconstitutional the administration of a facially neutral policy for licensing laundries where permits had been denied to 200 Chinese applicants but granted to all but one of 80-odd others permit applicants who were not Chinese); see also Gomillion v. Lightfoot, 364 U.S. 339 (1960) (finding unconstitutional an alteration to the shape of Tuskegee, Alabama “to remove from the city all save four or five of its 400 Negro voters while not removing a single white voter or resident”). A policy that relies on race at least in part is subject to strict scrutiny regardless of its impact. Therefore, cases like Gomillion v. Lightfoot, 364 U.S. 339, 340–41 (1960) and Yick Wo v. Hopkins, 118 U.S. 356 (1886) are inapposite. 56 Where a school admissions program is subject to strict scrutiny, the Court understands this to mean that the admissions program in its entirety is subject to strict scrutiny and not just the admissions decisions that involve the students that it seeks to advantage. Here, Harvard presses
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Strict scrutiny requires that classifications used by Harvard in its admissions program be
narrowly tailored to further a compelling interest. 57 See id. (“Strict scrutiny requires the
the idea that its admissions program is facially neutral and should be evaluated by a less demanding standard than strict scrutiny. Harvard’s admissions program is facially neutral in that it does not explicitly prioritize any particular racial group over any other and permits its admissions officers to evaluate the racial and ethnic identity of every student in the context of his or her background and circumstances. The policy cannot, however, be considered facially neutral from a Title VI perspective given that admissions officers provide tips to African American and Hispanic applicants, while white and Asian American applicants are unlikely to receive a meaningful race-based tip. In this circumstance, the standard for facially neutral policies could arguably be applied in evaluating any disparate outcomes as between whites and Asian Americans, keeping in mind that the purpose of strict scrutiny is to ferret out inappropriate racial classifications, and given that there is no suggestion of a racially motivated classification involving whites and Asian Americans. See Richmond v. J. A. Croson Co., 488 U.S. 469, 493 (1989) (plurality opinion) (noting that the purpose of subjecting a racial classification to strict scrutiny is to determine “what classifications are ‘benign’ or ‘remedial’ and what classifications are in fact motivated by illegitimate notions of racial inferiority or simple racial politics”); Grutter, 539 U.S. at 326 (“We apply strict scrutiny to all racial classifications to smoke out illegitimate uses of race by assuring that government is pursuing a goal important enough to warrant use of a highly suspect tool.” (quotation marks omitted and modifying punctuation omitted)). In the case of a facially neutral policy, “[p]roof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause.” Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265 (1977). Were that standard to be applied here, the Court would easily find in favor of Harvard on SFFA’s claim of intentional discrimination as there has been no showing of discriminatory intent or purpose.
57 SFFA contends that it may also succeed on its intentional discrimination claim by showing a “pattern or practice” of discrimination through statistically significant evidence of discrimination that then shifts to Harvard the burden of disproving the alleged pattern or practice. [ECF No. 620 ¶¶ 167–76]. This burden shifting framework, which is rooted in the statutory provisions of Title VII, see 42 U.S.C. § 2000e-6, is inapplicable to a non-class, private plaintiff such as SFFA, even assuming that it could apply in a Title VI case. See Chin v. Port Auth. of N.Y. & N.J., 685 F.3d 135, 149–50 (2d Cir. 2012) (holding “that the pattern-or-practice method of proof is not available to nonclass, private plaintiffs in cases such as the one before us” and noting that “all of our sister circuits to consider the question have held that the pattern-or-practice method of proof is not available to private, nonclass plaintiffs”); see also Semsroth v. City of Wichita, 304 Fed. Appx. 707, 715 (10th Cir. 2008); Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 967– 69 (11th Cir. 2008); Bacon v. Honda of Am. Mfg., 370 F.3d 565, 575 (6th Cir. 2004); Celestine v. Petroleos de Venezuella SA, 266 F.3d 343, 355–56 (5th Cir. 2001), abrogated on other grounds by, Health v. Bd. of Supervisors for the S. Univ. of Agric. & Mech. Coll., 850 F.3d 731 (5th Cir. 2017); Gilty v. Vill. of Oak Park, 919 F.2d 1247, 1252 (7th Cir. 1990); Lowery v. Circuit City Stores, Inc., 158 F.3d 742, 761 (4th Cir. 1998), vacated on other grounds, 527 U.S. 1031 (1999).
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university to demonstrate with clarity that its ‘purpose or interest is both constitutionally permissible and substantial, and that its use of the classification is necessary . . . to the accomplishment of its purpose.’” (quoting Bakke, 438 U.S. at 305)).
1. Compelling Interest In Bakke, Justice Powell found that student body diversity and the educational benefits that flow from a diverse student body was a compelling interest that could justify the consideration of race. 438 U.S. at 315 (“As the interest of diversity is compelling in the context of a university’s admissions program,” the remaining question is “whether the program’s racial classification is necessary to promote this interest.”). Importantly, he went on to explain that “[t]he diversity that furthers a compelling state interest encompasses a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important element.” Bakke, 438 U.S. at 315. Twenty-five years later, the Supreme Court, in Grutter, reaffirmed that “student body diversity is a compelling state interest that can justify the use of race in university admissions.” Grutter, 539 U.S. at 325; see also Fisher I, 570 U.S. at 308–09 (reiterating that prior cases had found that “obtaining the educational benefits of student body diversity is a compelling state interest” (citation and internal quotation marks omitted)). Here, for the reasons discussed supra at Section III.A.1, Harvard’s interest in student body diversity is substantial and compelling. Its goals are not “elusory or amorphous,” and are instead “sufficiently measurable to permit judicial scrutiny of the policies adopted to reach them.” Fisher II, 136 S. Ct. at 2211. These goals include “enhance[ing] the education of [its] students of all races and background [to] prepare them to assume leadership roles in the increasingly pluralistic society into which they will graduate,” achieving the “benefits that flow from [its] students’ exposure to people of different background, races, and life experiences” by teaching them to engage across differences through immersion in a diverse community, and
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“broaden[ing] the perspectives of teachers[, and] thus tend[ing] to expand the reach of the curriculum and the range of scholarly interests of [its] faculty.” [PX302 at 1–2, 9]. Harvard’s goals are similar in specificity to goals the Supreme Court found “concrete and precise” in Fisher II. See 136 S. Ct. 2211. Racial categorizations are necessary to achieve those goals. In the absence of such categorizations, racial diversity at Harvard would likely decline so precipitously that Harvard would be unable to offer students the diverse environment that it reasonably finds necessary to its mission. See infra at Section VII.G.
2. Narrowly Tailored Even in the limited circumstance when drawing racial distinctions is permissible to further a compelling state interest, a university is still “constrained in how it may pursue that end: ‘The means chosen to accomplish the [university’s] asserted purpose must be specifically and narrowly framed to accomplish that purpose.’” Shaw v. Hunt, 517 U.S. 899, 908 (1996) (quoting Wygant v. Jackson Bd. of Ed., 476 U.S. 267, 280 (1986)). Therefore, to satisfy strict scrutiny, “a university must make a showing that its plan is narrowly tailored to achieve the only interest that this Court has approved in this context: the benefits of a student body diversity that ‘encompasses a . . . broa[d] array of qualifications and characteristics of which racial or ethnic origin is but a single though important element.’” Fisher I, 570 U.S. at 308 (quoting Bakke, 438 U.S. at 315). “When race-based action is necessary to further a compelling governmental interest, such action does not violate the constitutional guarantee of equal protection so long as the narrow-tailoring requirement is also satisfied.” Grutter, 539 U.S. at 327; see also J.A. Croson Co., 488 U.S. at 493 (plurality opinion) (“The purpose of strict scrutiny is to ensure that “the means chosen ‘fit’ . . . th[e] compelling goal so closely that there is little or no possibility that the motive for the classification was illegitimate racial prejudice or stereotype.”).
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“To be narrowly tailored, a race-conscious admissions program cannot use a quota system,” Grutter, 539 U.S. at 334, but instead must “remain flexible enough to ensure that each applicant is evaluated as an individual and not in a way that makes an applicant’s race or ethnicity the defining feature of his or her application,” Fisher I, 570 U.S. at 309 (quoting Gratz, 539 U.S. at 337). “In other words, an admissions program must be ‘flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant.’” Grutter, 539 U.S. at 334 (quoting Bakke, 438 U.S. at 317). Thus, individualized consideration in the context of a race-conscious admissions program is paramount. See id.; Bakke, 438 U.S. at 318 n.52 (identifying the “denial . . . of th[e] right to individualized consideration” as the “principal evil” of the medical school’s admissions program).
The Court finds that Harvard’s admissions program “bears the hallmarks of a narrowly tailored plan” in that “race [is] used in a flexible, nonmechanical way” and considered “as a ‘plus’ factor in the context of individualized consideration of each and every applicant.” Grutter, 539 U.S. at 334. Like the University of Michigan Law School in Grutter, Harvard “engages in a highly individualized, holistic review of each applicant’s file, giving serious consideration to all the ways an applicant might contribute to a diverse educational environment,” “this individualized consideration [is afforded] to applicants of all races,” and its “race-conscious admissions program adequately ensures that all factors that may contribute to student body diversity are meaningfully considered alongside race in admissions decisions.” Id. at 337–38.
The nature of the allegations in this case however, requires that the analysis go further.58 Given the “serious problems of justice connected with the idea of preference itself,” Bakke, 438
58 Even though Harvard has shown that its admissions policy must consider race to serve its substantial and compelling interests, the application of strict scrutiny requires a “a further
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U.S. at 298, narrow tailoring further requires “that a race-conscious admissions program not unduly harm members of any racial group,” Grutter, 539 U.S. at 341; see also Metro Broad., Inc. v. FCC, 497 U.S. 547, 630 (1990) (O’Connor, J., dissenting) (a race-conscious admissions program must not “unduly burden individuals who are not members of the favored racial and ethnic groups”).
The remaining issue is whether Harvard’s admissions program unduly burdens Asian American applicants. Based on Professor Card’s model and the Court’s preferred model with the personal rating included, there is not a statistically significant difference between the chances of admission for similarly situated Asian American and white applicants. Under this rubric, the lack of a statistically significant penalty against Asian American applicants relative to white applicants suggests that the burden Harvard’s race-conscious admissions policy places on Asian American applicants is not undue. However, Professor Arcidiacono’s analysis, and the Court’s preferred model with the personal rating excluded, imply that Asian American applicants are disadvantaged relative to white applicants. The questions in the context of this case then become: why do Asian American applicants score lower on the personal rating, does it unfairly affect their chances of admission, and if so, is this an undue burden on them when measured against Harvard’s compelling interest in diversity?
It is possible that the self-selected group of Asian Americans that applied to Harvard during the years included in the data set used in this case did not possess the personal qualities that Harvard is looking for at the same rate as white applicants, just as it is possible that the selfselected white applicants tend to have somewhat weaker academic qualifications than Asian
judicial determination that the admissions process meets strict scrutiny in its implementation.” Fisher I, 570 U.S. at 311. Strict scrutiny affords a plaintiff “close analysis to the evidence of how the [admission] process works in practice.” Id. at 312–13.
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American applicants. In other words, assuming Asian American and white applicants have the same academic and extracurricular potential and the same quality of personal attributes as demographic groups, it could be that asymmetric portions of each of these groups apply to Harvard. This would explain why Asian American applicants to Harvard did better than white applicants on the academic and extracurricular ratings and why white applicants to Harvard did better on the personal rating despite the likelihood that Asian Americans are not inherently more intelligent and white applicants are not inherently more personable. This scenario has little evidentiary support, but it, like Professor Card’s model and the Court’s preferred model including the personal ratings, would result in a finding of no undue burden and a narrowly tailored process that satisfied strict scrutiny.59
Alternatively, it may be that there is overt discrimination or implicit bias at work to the disadvantage of Asian American applicants. To begin at the end, the Court sees no evidence of discrimination in the personal ratings save for the slight numerical disparity itself. The statistical disparity is relatively minor and can be at least partially explained by a variety of factors including race-correlated inputs to the rating such as teacher and guidance counselor recommendations. Just as the Court cannot explain the variations in the academic and extracurricular ratings, it cannot definitively explain the difference in the personal ratings, but it
59 There may be little evidentiary support for this hypothesis because it was not in the interest of either party to develop this scenario. SFFA was wedded to the idea that the Asian American applicants were superior in two profiles and discriminated against on a third, while Harvard was unwilling to overtly argue that Asian American applicants were actually weaker in personal criteria, notwithstanding their stronger average academic performance and Harvard’s acknowledgment that Asian American applicants tend to be stronger in their extracurricular pursuits. The Court does not think, however, that demonstrable, disproportionate strength of a racial group in one area necessarily implies that the same racial group should be strong in all areas. If one assumes that raw talent and race are unrelated, it would be unsurprising to find that applicants that excel in one area, tend to be somewhat weaker in other areas.
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finds that the disparity is small and reflects neither intentional discrimination against Asian American applicants nor a process that was insufficiently tailored to avoid the potential for unintended discrimination.
Even if there is an unwarranted disparity in the personal ratings, the Court is unable to identify any individual applicant whose admissions decision was affected and finds that the disparity in the personal ratings did not burden Asian American applicants significantly more than Harvard’s race-conscious policies burdened white applicants. Further, there is no evidence of any discriminatory animus or conscious prejudice. To the contrary, certain statistics can be interpreted to suggest that Harvard’s admissions process unintentionally favored some subsets of Asian Americans, including the ALDCs and certain other discrete demographic groups like disadvantaged Asian females. The most likely causes of these statistical findings, however, is random variation in the admissions process or omitted variable biases, not selective discrimination that favored some Asian Americans and disfavored others.
In terms of burden, it is likely that eliminating consideration of race would significantly disadvantage at least some Asian American applicants, as evidenced by the testimony of the amici at trial, all of whom viewed their race or ethnicity as a critical aspect of their life experiences and applications to Harvard. Further, it is vital that Asian Americans and other racial minorities be able to discuss their racial identities in their applications. As the Court has seen and heard, race can profoundly influence applicants’ sense of self and outward perspective. See, e.g., [Oct. 29 Tr. 30:23–33:17, 81:16–82:14, 85:24–90:3. 113:23–117:6, 140:9–148:3, 166:19–172:18, 199:18–204:9]. Removing considerations of race and ethnicity from Harvard’s admissions process entirely would deprive applicants, including Asian American applicants, of their right to advocate the value of their unique background, heritage, and perspective and would
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likely also deprive Harvard of exceptional students who would be less likely to be admitted without a comprehensive understanding of their background. Further, throughout this trial, SFFA did not present a single admissions file that reflected any discriminatory animus, or even an application of an Asian American who it contended should have or would have been admitted absent an unfairly deflated personal rating. There thus remains the distinct possibility that a review of the available applications did not turn up a rejected Asian American applicant who was clearly more qualified than the white applicants who were admitted, or an applicant who received an obviously unjustified personal rating. This would strongly suggest that Asian American applicants were not discriminated against relative to white applicants and were therefore not unduly burdened by Harvard’s admissions program.
Although the Court evaluates each of SFFA’s four counts separately below, it concludes that Harvard’s admissions program has been designed and implemented in a manner that allows every application to be reviewed in a holistic manner consistent with the guidance set forth by the Supreme Court. Further, the Court concludes that while the admissions process may be imperfect, the statistical disparities between applicants from different racial groups on which SFFA’s case rests are not the result of any racial animus or conscious prejudice and finds that Harvard’s admissions program is narrowly tailored to achieve a diverse class and the benefits that flow therefrom.
E. Count II: Harvard Does Not Engage in Racial Balancing Count II alleges that Harvard engaged in impermissible racial balancing, that is, racial balancing that does not adhere to the parameters established by the Supreme Court. To maintain a permissible race-conscious admissions policy, Harvard may not “impose a fixed quota,” Fisher II, 136 S. Ct. at 2208, or otherwise “‘assure within its student body some specified percentage of a particular group merely because of its race or ethnic origin,’” as such a practice “would amount
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to outright racial balancing, which is patently unconstitutional” under the Equal Protection Clause and therefore prohibited by Title VI. Grutter, 539 U.S. at 329–30 (quoting Bakke, 438 U.S. at 307). The requirement that colleges and universities that accept federal funds abstain from such quota systems stems from the “simple command that the Government must treat citizens as individuals, not as simply components of a racial, religious, sexual or national class.” Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 730 (2007) (quoting Miller v. Johnson, 515 U.S. 900, 911 (1995)). Quota systems are impermissible because they insulate some “category of applicants with certain desired qualifications from competition with all other applicants.” Grutter, 539 U.S. at 334 (quoting Bakke, 438 U.S. at 315); see Wessmann v. Gittens, 160 F.3d 790, 798 (1st Cir. 1998) (“A single-minded focus on ethnic diversity ‘hinder[s] rather than further[s] attainment of genuine diversity.’” (quoting Bakke, 438 U.S. at 315)).
Harvard’s admissions program intends to treat every applicant as an individual. Harvard does not employ a race-based quota, set aside seats for minority students, or otherwise “define diversity as ‘some specified percentage of a particular group merely because of its race or ethnic origin.’” Fisher I, 570 U.S. at 311 (quoting Bakke, 438 U.S. at 307). Every applicant competes for every seat. See [Oct. 18 Tr. 112:1–21]. Although a university could run afoul of Title VI’s prohibition on quotas even where it stopped short of defining a specific percentage and instead allowed some fluctuation around a particular number, see Parents Involved, 551 U.S. at 712 (striking down school district student allocation plan that allowed for 10% variation from the district’s overall white/nonwhite racial balance), Harvard’s admissions policy has no such target number or specified level of permissible fluctuation. As Justice Powell recognized in Bakke and as was affirmed in Grutter, “minimum goals for minority enrollment . . . [without a] specific
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number firmly in mind” did not make Harvard’s program “the functional equivalent of a quota merely because it had some ‘plus’ for race, or gave greater ‘weight’ to race than to some other factors, in order to achieve student body diversity.” Grutter, 539 U.S. at 335 (quoting Bakke, 438 U.S. 317–318, 323). As the Court also held in Grutter:
The . . . goal of attaining a critical mass of underrepresented minority students does not transform its program into a quota. As the Harvard plan described by Justice Powell recognized, there is of course “some relationship between numbers and achieving the benefits to be derived from a diverse student body, and between numbers and providing a reasonable environment for those students admitted.” Id. at 335–36 (quoting Bakke, 438 U.S. at 323). SFFA argues that its racial balancing claim is supported by non-statistical evidence, principally that Harvard’s admissions leadership too frequently looked at the “one-pagers” that showed the racial composition of admitted applicants or applicants whom Harvard was likely to admit and that Harvard placed students on its “search list” and sent recruitment letters to applicants based on criteria that disfavored Asian American applicants. The recruitment letters, however, did not affect admissions decisions, and SFFA cannot maintain a viable claim for intentional discrimination based merely on the allegation that some limited number of Asian American applicants did not receive certain pieces of marketing mail. See Weser, 190 F. Supp. 2d at 399 (holding that race-conscious recruiting efforts do “not constitute discrimination”); see also Allen v. Ala. State Bd. of Educ., 164 F.3d 1347, 1352 (11th Cir. 1999), vacated per stipulation, 216 F.3d 1263 (11th Cir. 2000) (“[W]here the government does not exclude persons from benefits based on race, but chooses to undertake outreach efforts to persons of one race, broadening the pool of applicants, but disadvantaging no one, strict scrutiny is generally inapplicable.”); Lutheran Church-Mo. Synod v. FCC, 154 F.3d 487, 492 (D.C. Cir. 1998) (noting that “broad outreach to, as opposed to the actual hiring of, a particular race” would not necessarily trigger strict scrutiny); Honadle v. Univ. of Vt. and State Agric. Coll., 56 F. Supp. 2d
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419, 428 (D. Vt. 1999) (distinguishing “‘inclusive’ forms of affirmative action, such as recruitment and other forms of outreach” from “‘exclusive’ forms of affirmative action, such as quotas, set asides and layoffs” and holding that monitoring racial composition and encouraging recruitment of diverse candidates were not discriminatory practices subject to strict scrutiny). Even if non-receipt of an invitation to apply to Harvard could constitute discrimination, there was no evidence presented at trial that any SFFA member fell into the group of Asian American applicants who did not receive such an invitation because of their race, nor is there any evidence that they suffered an injury as a result.
Further, as in Grutter, consulting the one-pagers “which keep track of the racial and ethnic composition of the class” (among other statistics) does not “sugges[t] there was no further attempt at individual review save for race itself during the final stages of the admissions process.” 539 U.S. at 336 (quotation marks omitted). Throughout the process, Harvard remains committed to its holistic evaluation and its whole person review. Harvard’s use of the onepagers as part of its admissions process and to evaluate whether it would be able to achieve its “goals for minority enrollment” is permissible and does not establish the existence of a quota or impermissible racial balancing. Id. at 335 (emphasis in original). As the Supreme Court has held, “‘[s]ome attention to numbers,’ without more, does not transform a flexible admissions system into a rigid quota.” Id. at 336 (quoting Bakke 438 U.S. at 323).60
60 In fact, the law requires a “reasoned, principled explanation” for a decision to use race in admissions, and courts examine numerical evidence when evaluating whether race-conscious plans are narrowly tailored to serve a compelling interest. See, e.g., Fisher II, 136 S. Ct. at 2211–12 (considering “anecdotal evidence” including racial representation in enrolled classes and “more nuanced quantitative data” reflecting African American and Hispanic representation in undergraduate classes).
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Further, it may well be necessary to give attention to numerical indicators of racial diversity when an institution elects to adopt a race-conscious admissions program so as to remain compliant with the dictates of strict scrutiny, including monitoring the ongoing need for a raceconscious admissions process and the availability of race-neutral alternatives. See Fisher II, 136 S. Ct. at 2214–15 (requiring UT Austin to “continue to use [] data to scrutinize the fairness of its admissions program; to assess whether changing demographics have undermined the need for a race-conscious policy; and to identify the effects, both positive and negative, of the affirmativeaction measures it deems necessary”). Harvard’s awareness and consideration of the number of minority students likely to enroll throughout its annual admissions cycle is consistent with the fact that there is “some relationship between numbers and achieving the benefits to be derived from a diverse student body, and between numbers and providing a reasonable environment for those students admitted.” Grutter, 539 U.S. at 336 (quoting Bakke 438 U.S. at 323). Additionally, Harvard also considers the racial distribution of its admitted students to assist it in predicting its yield rate and thereby avoid overenrolling its freshman class because students from some racial groups historically matriculate at higher rates than others. These practices do not violate Title VI.
As Justice Powell did in 1978, the Court “flatly reject[s] the argument that Harvard’s program [is] ‘the functional equivalent of a quota’” system or an otherwise impermissible means of racial balancing. Id. at 335 (quoting Bakke 38 U.S. at 317–18). Accordingly, judgment for Harvard shall enter on Count II, racial balancing.
F. Count III: Harvard Uses Race as a Non-Mechanical Plus Factor Count III alleges that Harvard fails to use race merely as a “plus” factor in admissions decisions. Consistent with what is required by Supreme Court precedent, Harvard has demonstrated that it uses race as a factor that can act as a “plus” or a “tip” in making admissions
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decisions, and that its admissions program is “flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant, and to place them on the same footing for consideration, although not necessarily according them the same weight.” Grutter, 539 U.S. at 334 (quoting Bakke, 438 U.S. at 317). Although race is an important consideration in deciding to admit many African American and Hispanic applicants, it remains an “individualized consideration in the context of [Harvard’s] race-conscious admissions program” and never becomes “the defining feature” of applications. Id. at 337 (citing Bakke, 438 U.S. at 318 n.52).
Admissions policies that fail to use race only as a plus factor typically either employ a quota system or assign some specified value to applicants’ racial identity, and thereby use race in a rigid and mechanical manner that deprives applicants of the truly individualized consideration required by the Supreme Court. See Gratz, 539 U.S. at 270 (finding unconstitutional “the University [of Michigan]’s . . . policy, which automatically distribute[d] 20 points, or one-fifth of the points needed to guarantee admission, to every single ‘underrepresented minority’ applicant solely because of race”); Bakke, 438 U.S. at 272 (striking down quota system); Johnson v. Bd. of Regents of Univ. of Ga., 263 F.3d 1234, 1254 (11th Cir. 2001) (finding University of Georgia’s admissions policy not narrowly tailored where it employed a rigid, mechanical approach that awarded “every non-white applicant [] a 0.5 point bonus, regardless of his or her background and regardless of whether a white applicant with a far more ‘diverse’ background” was available). Although the parties’ experts have estimated the average magnitude of Harvard’s race-related tips based on past admissions decisions and the effect those tips have on the diversity of its classes, the magnitude of the tip for an individual applicant cannot be precisely determined because race is considered in a contextual manner as part of Harvard’s holistic evaluation of each
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applicant. The estimated average magnitude of the tips and the impact of the race-related tips or plus factors on the racial composition of Harvard’s classes, however, are comparable to the size and effect of tips that have been upheld by the Supreme Court.
For example, in Fisher II, the Supreme Court noted that the proportion of Hispanic and African American applicants admitted through UT Austin’s holistic review process in 2007, when race was considered, had increased 54% and 94%, respectively, relative to 2003, when the holistic review process had been race-neutral. Fisher II, 136 S. Ct. at 2212. Those figures showed that “race has had a meaningful, if still limited, effect on the diversity of the University’s freshman class.” Id. The impact of UT Austin’s holistic process is comparable to the decline in combined African American and Hispanic enrollment that Harvard would likely experience in the absence of the consideration of race, which is estimated to be approximately 45%, absent alternative measures.
In addition, the Supreme Court upheld the University of Michigan Law School’s admissions program where “underrepresented minority students would have constituted 4 percent of the entering class in 2000 instead of the actual figure of 14.5 percent,” and African American applicants to the law school were “nearly guaranteed admissions if they score above 155 on the LSAT,” while “[w]hites scoring [below] 167 . . . on the LSAT [were] routinely rejected.” Grutter, 539 U.S. at 320, 377 (Thomas, J., dissenting). The plus-factor or tips that Harvard employs to achieve racial diversity for its educational mission are not nearly as large. Additionally, the magnitude of race-based tips is not disproportionate to the magnitude of other tips applicants may receive. The effect of African American and Hispanic racial identity on an applicant’s probability of admission has been estimated at a significantly lower magnitude than tips offered to recruited athletes, and is comparable to tips for legacies, applicants on the dean’s
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or director’s interest lists, children of faculty or staff, and strengths that are reflected by Harvard’s profile ratings.
Finally, the magnitude of race-based tips as indicated by the relative academic qualifications of admitted minority students at Harvard is modest. Every student Harvard admits is academically prepared for the educational challenges offered at Harvard, and a majority of admitted applicants from every major racial group scores in the 2 range on Harvard’s academic ratings. [PX623].61 In other words, most Harvard students from every racial group have a roughly similar level of academic potential, although the average SAT scores and high school grades of admitted applicants from each racial group differ significantly.
Accordingly, judgment for Harvard shall enter on Count III, using race as a nonmechanical plus factor.
G. Count V: No Adequate, Workable, and Sufficient Fully Race-Neutral Alternatives Are Available
Count V alleges that Harvard, in constructing an admissions process that considers race to ensure a diverse class, failed to consider and adopt race-neutral alternatives that would allow it to achieve diversity. Strict scrutiny requires that the Court “verify that it is ‘necessary’ for a university to use race to achieve the educational benefits of diversity.” Fisher I, 570 U.S. at 312 (quoting Bakke, 438 U.S. at 305). “This involves a careful judicial inquiry into whether a university could achieve sufficient diversity without using racial classifications. Although ‘[n]arrow tailoring does not require exhaustion of every conceivable race-neutral alternative,’” id. (quoting Grutter, 539 U.S. at 339–40), or choosing “between maintaining a reputation for excellence or fulfilling a commitment to provide educational opportunities to members of all
61 An academic rating of 2 indicates magna cum laude potential, superb grades, and mid- to high700 SAT scores or a score above 33 on the ACT. See supra at Section III.B.3.ii. The “2 range” includes applicants who were assigned a “2+” or “2-.”
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racial groups,” Grutter, 539 U.S. at 339, “strict scrutiny does require a court to examine with care, and not defer to, a university’s ‘serious, good faith consideration of workable race-neutral alternatives,’” Fisher I, 570 U.S. at 312 (quoting Grutter, 539 U.S. at 339–340). “Consideration by the university is of course necessary, but it is not sufficient to satisfy strict scrutiny: The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity.” Id. If “‘a nonracial approach . . . could promote the substantial interest about as well and at tolerable administrative expense,’ . . . then the university may not consider race.” Id. (citation omitted). In considering the proffered raceneutral alternatives, the Court is mindful of Justice Ginsburg’s astute observation that “only an ostrich could regard the supposedly neutral alternatives as race unconscious.” Id. at 335 (Ginsburg, J., dissenting).
Here, as more fully discussed in Section VI, Harvard has demonstrated “that ‘race-neutral alternatives’ that are both ‘available’ and ‘workable’ ‘do not suffice.’” Fisher II, 136 S. Ct. at 2208. In sum, eliminating early action and tips for ALDCs, increasing outreach and community partnerships, offering more financial aid, or admitting more transfer students are all “available” and “workable” in some form and at varying costs, but they would likely have no meaningful impact on racial diversity. Further, any minimal effect that these alternative admissions practices might have on racial diversity, if implemented individually or in combination, would be offset by the decline in African American and Hispanic students that would result if race-conscious admissions practices were eliminated. Several other conceivable alternatives, such as admitting only students who rank at top of their high school class after their junior year or admitting the top student from each zip code, are not workable for Harvard because such programs would vastly over enroll its class. See supra at Section III.A.2; see also Fisher II, 136 S. Ct. at 2213 (“Class
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rank is a single metric, and like any single metric, it will capture certain types of people and miss others. . . . [P]rivileging one characteristic above all others does not lead to a diverse student body.”).
SFFA’s expert, Mr. Kahlenberg, proposes a geographic-based quota system using “neighborhood clusters” that is seemingly designed to achieve racial diversity based on socioeconomics rather than attention to race. This proposal has some of the earmarks of impermissible racial balancing, albeit without an explicit, articulated reliance on race. Further, it poses significant logistical challenges, such as how to form the clusters, and how to account for wealthy households in a generally lower income cluster, as well as difficult institutional and philosophical questions such as whether economics can fairly be considered a proxy for race.
These issues aside, although Harvard could theoretically impose some form of geographic, place-based quota system, it could not achieve comparable racial diversity through such a program without a significant decline in the academic strength of its class. Further, the legality of the proposed place-based quota system is uncertain. In Fisher II, the Supreme Court upheld the constitutionality of UT Austin’s holistic review program but did not speak to the overall permissibility of place-based admissions policies. 136 S. Ct. at 2213–15. Unlike Harvard’s holistic process which considers every applicant individually, UT Austin admitted most of its class by automatically admitting applicants who graduated in the top 10% of their Texas high school class pursuant to a state law requiring it to admit those students. Id. at 2209. The plaintiff advocated the expansion of the automatic admission percentage, claiming it to be a race-neutral way of increasing diversity. Id. at 2213. The Supreme Court refused to require the expansion of the program, stating, “‘It is race consciousness, not blindness to race, that drives such plans.’ Consequently, petitioner cannot assert simply that increasing the University’s
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reliance on a percentage plan would make its admissions policy more race neutral.” Id. at 2213 (citation omitted) (quoting Fisher I, 570 U.S. at 335–36 (Ginsburg, J., dissenting)). Here, just as in Fisher II, the Court is not persuaded that such a plan would actually be “more race neutral,” id. at 2213. Place-based plans therefore do not suffice, pose complex challenges, and may not even qualify as available race-neutral alternatives.
Harvard could adopt a more significant tip for economically disadvantaged students, but every such proposal presented to the Court would result in a significant decline in African American representation. Achieving even roughly comparable levels of combined African American and Hispanic representation to those Harvard presently achieves would require Harvard to sacrifice the academic strength of its class and forgo other admissions policies from which it derives financial, reputational, and academic benefits. See supra at Section 0. As such, Harvard would compromise some degree of its reputation for academic excellence and still be less diverse than it is currently. Title VI does not require such an outcome. See Fisher II, 136 S. Ct. at 2213 (explaining that the Supreme “Court’s precedent [makes] clear that the Equal Protection Clause does not force universities to choose between a diverse student body and a reputation for academic excellence”).
Harvard has demonstrated that no workable and available race-neutral alternatives would allow it to achieve a diverse student body while still maintaining its standards for academic excellence. Judgment shall therefore enter in Harvard’s favor on Count IV, race-neutral alternatives.
H. Count I: Harvard Does Not Intentionally Discriminate SFFA’s intentional discrimination claim, Count I, requires the Court to determine whether Harvard’s admissions program violates Title VI through intentional discrimination against Asian Americans notwithstanding the Court’s conclusion that Harvard has shown that its
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admissions program serves its compelling interest in diversity, that some racial categorizations are necessary to serve that interest, that it does not engage in proscribed racial balancing, and that no workable and available, fully race-neutral alternatives would suffice to meet Harvard’s goals. SFFA is not claiming that Harvard excludes Asian Americans and in fact, Asian Americans are admitted at virtually the same rate as white applicants. What it does claim is that, based solely on the quantifiable aspects of admissions, Asian Americans should be admitted at an even higher rate and that, if the personal ratings were not depressed, there would be more Asian Americans admitted.
In undertaking its analysis, the Court begins with certain fundamentals. First, “given the important purposes of public education and the expansive freedoms of speech and thought associated with the university environment, universities occupy a special niche in our constitutional tradition.” Grutter 539 U.S. at 328–29. Second, a university is free to “make its own judgments as to . . . the selection of its student body.” Id. at 329 (quoting Bakke, 438 U.S. at 312). And third, although deference is owed to a university’s decision to pursue the educational benefits that flow from diversity, the university must show that its use of race is narrowly tailored to achieve its permissible goals. Fisher II, 136 S. Ct. at 2208.
To these, the Court reiterates the following findings specific to this case: 1. Throughout this trial and after a careful review of all exhibits and written submissions,
there is no evidence of any racial animus whatsoever or intentional discrimination on the part of Harvard beyond its use of a race conscious admissions policy, nor is there
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evidence that any particular admissions decision was negatively affected by Asian
American identity.62
2. A race-conscious admissions program allows Harvard to achieve a level of robust
diversity that would not otherwise be possible, at least at this time.
3. The Court firmly believes that Asian Americans are not inherently less personable than
any other demographic group, just as it believes that Asian Americans are not more
intelligent or more gifted in extracurricular pursuits than any other group.
4. There is a statistical difference in the personal ratings with white applicants faring better
that Asian American applicants. Asian American applicants, however, do better on the
extracurricular and academic ratings than their white counterparts. All three ratings
incorporate subjective and objective elements, and while implicit biases may be affecting
62 The Court notes that under the Title VI standard applicable outside the higher education admissions context, SFFA’s intentional discrimination claim would fail because SFFA has not shown, by a preponderance of the evidence, that (1) Harvard discriminated on the basis of race, (2) that the discrimination was intentional, and (3) that the discrimination was a substantial or motivating factor for admissions decisions. See Goodman v. Bowdoin Coll., 380 F.3d 33, 43 (1st Cir. 2004) (citing Tolbert v. Queens Coll., 242 F.3d 58, 69 (2d Cir. 2001)). The requirement for a “substantial or motivating factor” requires “evidence of racial animus,” id. at 43, and no racial animus was present here.
Further, under the standard articulated in Goodman v. Bowdoin College, 380 F.3d 33 (1st Cir. 2004), the Court would enter judgment for Harvard because it has shown that its admissions program was employed to promote diversity, which is not an invidious discriminatory purpose. See supra at Section III.D. Admissions decisions are made only after a careful process that considers and appreciates the diversity that applicants from diverse racial backgrounds, including Asian Americans, provide at Harvard. Harvard’s only intentional consideration of race views increased racial diversity as a positive attribute of its admitted class, which it achieves by considering an individual’s race through an individualized, holistic evaluation of every applicant in the manner envisioned by the Supreme Court. Further, the Court feels confident stating that the statistical disparities in personal ratings and admissions probabilities that have been identified are the result of some external race-correlated factors and perhaps some slight implicit biases among some admissions officers that, while regrettable, cannot be completely eliminated in a process that must rely on judgments about individuals.
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Harvard’s ratings at the margins, to the extent that the disparities are the result of race, they are unintentional and would not be cured by a judicial dictate that Harvard abandon considerations of race in its admission process. 5. Harvard’s admissions program is conceptually narrowly tailored to meet its interest in diversity. In practice, as more fully discussed above, it does not seem to unduly burden Asian Americans despite the fact that some percentage of Asian American applicants have received lower personal ratings than white applicants who seem similarly situated. The reason for these lower scores is unclear, but they are not the result of intentional discrimination. They might be the result of qualitative factors that are harder to quantify, such as teacher and guidance counselor recommendations, or they may reflect some implicit biases. Race conscious admissions will always penalize to some extent the groups that are not being advantaged by the process, but this is justified by the compelling interest in diversity and all the benefits that flow from a diverse college population. Here, any relative burden on Asian Americans (and it is not clear that there is a disproportionate burden) is not enough to warrant a finding that Harvard’s admissions process fails to survive strict scrutiny or to require it to move to an admissions model that foregoes diversity in favor of parity based solely on quantifiable metrics. The testimony of the admissions officers that there was no discrimination against Asian American applicants with respect to the admissions process as a whole and the personal ratings in particular was consistent, unambiguous, and convincing. Not one of them had seen or heard anything disparaging about an Asian American applicant despite the fact that decisions were made collectively and after open discussion about each applicant in the docket and full committee meetings. Similarly, there is no credible evidence that corroborates the improper
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discrimination suggested by Professor Arcidiacono’s statistical model. Asian American applicants are accepted at the same rate as other applicants and now make up more than 20% of Harvard’s admitted classes, up from 3.4% in 1980. Although Asian Americans can and do bring important and diverse perspectives to Harvard, because only about 6% of the United States population is Asian American compared to nearly a quarter of Harvard’s class, it is reasonable for Harvard to determine that students from other minority backgrounds are more likely to offer perspectives that are less abundant in its classes and to therefore primarily offer race-based tips to those students. Finally, SFFA did not present a single Asian American applicant who was overtly discriminated against or who was better qualified than an admitted white applicant when considering the full range of factors that Harvard values in its admissions process.
The statistics themselves are alone not enough to cause the Court to conclude that Harvard has engaged in improper intentional discrimination where Harvard has shown that its admissions policy uses race only in a permissible and narrowly tailored way. Further, although Professor Arcidiacono’s statistics suggest discrimination against certain subsets of Asian American applicants, Professor Card’s analysis of this same data suggests the opposite, thereby leaving the statistical analyses inconclusive. Even assuming that there is a statistically significant difference between how Asian American and white applicants score on the personal rating, the data does not clearly say what accounts for that difference. In other words, although the statistics perhaps tell “what,” they do not tell “why,” and here the “why” is critically important. Further, by its very nature, the personal score includes, and should include, aspects of an applicant and his or her application that are not easily quantifiable and therefore cannot be fully captured by the statistical data.
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Harvard’s admissions process survives strict scrutiny. It serves a compelling, permissible and substantial interest, and it is necessary and narrowly tailored to achieve diversity and the academic benefits that flow from diversity. Consistent with the hallmarks of a narrowly tailored program, applicants are afforded a holistic, individualized review, diversity is understood to embrace a broad range of qualities and experiences, and race is used as a plus factor, in a flexible, non-mechanical way. See Fisher, 136 S. Ct. at 2214; Grutter, 539 U.S. at 337–38. The Admissions program also satisfies the other principles articulated in Fisher II in that it does not have a quota or use a fixed percentage and all applicants compete for all available seats. Further, Harvard has met its burden of showing that there are not currently any available or workable race-neutral alternatives. Finally, there is nothing about Harvard’s admissions process that is at odds with the reason for subjecting racial classifications to strict scrutiny—to ensure “little or no possibility that the motive for the classification was illegitimate racial prejudice or stereotype.” J.A. Croson Co., 488 U.S. at 493. The use of race benefits certain racial and ethnic groups that would otherwise be underrepresented at Harvard and is therefore neither an illegitimate use of race or reflective of racial prejudice. Accordingly, judgment for Harvard shall enter on Count I, intentional discrimination. VIII. CONCLUSION
Notwithstanding the fact that Harvard’s admissions program survives strict scrutiny, it is not perfect. The process would likely benefit from conducting implicit bias trainings for admissions officers, maintaining clear guidelines on the use of race in the admissions process, which were developed during this litigation, and monitoring and making admissions officers aware of any significant race-related statistical disparities in the rating process. That being said, the Court will not dismantle a very fine admissions program that passes constitutional muster, solely because it could do better. There is always the specter of perfection, but strict scrutiny
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does not require it and a few identified imperfections, after years of litigating and sifting through applications and metrics, do not alone require a finding that Harvard’s admissions program is not narrowly tailored.
Further, the Court emphatically repeats what the Supreme Court said in Fisher II: The University now has at its disposal valuable data about the manner in which different approaches to admissions may foster diversity or instead dilute it. The University must continue to use this data to scrutinize the fairness of its admissions program; to assess whether changing demographics have undermined the need for a race-conscious policy; and to identify the effects, both positive and negative, of the affirmative-action measures it deems necessary. The Court’s affirmance of the University’s admissions policy today does not necessarily mean the University may rely on that same policy without refinement. It is the University’s ongoing obligation to engage in constant deliberation and continued reflection regarding its admissions policies.
136 S. Ct. at 2213–15. The Court here stops well short of requiring an admissions process that is overly data
driven. Using statistics to ensure that the distribution of profile ratings or any other measure is exactly even among various groups would potentially run afoul of the prohibition on quotas and, more importantly, defeat the purpose of a comprehensive, holistic review process that allows the admission of applicants with virtues that are not always quantifiable. But now that Harvard and other schools can see how statistical analyses can reveal perhaps otherwise imperceptible statistical anomalies, these sorts of statistics should be used as a check on the process and as a way to recognize when implicit bias might be affecting outcomes.
It was always intended that affirmative action programs be limited in duration. In 2003, the Supreme Court articulated its expectation that in twenty-five years, it would not be necessary to use racial preferences to achieve a diverse student body. Grutter, 539 U.S. at 343. As time marches on and the effects of entrenched racism and unequal opportunity remain obvious, this
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goal might be optimistic and may need to change, but it remains imperative that Harvard and
other schools that make use of racial preferences to achieve a diverse learning environment
ensure, through data and experience, that “race plays no greater role than is necessary to meet its
compelling interest” in diversity and to keep in mind that “racial classifications may sometimes
fail to capture diversity in all of its dimensions.” Fisher II, 136 S. Ct. at 2210.
The wise and esteemed author Toni Morrison observed, “Race is the least reliable
information you can have about someone. It’s real information, but it tells you next to nothing.”
Emily Langer, From heart of black America, a voice for the voiceless, Boston Globe, Aug. 7,
2019, at C11 (quoting Paul Gray, Books: Paradise Found, Time (Jan. 19, 1998),
http://content.time.com/time/subscriber/article/0,33009,987690-5,00.html). Although this has
been said, it must become accepted and understood before we close the curtain on race conscious
admissions policies. The rich diversity at Harvard and other colleges and universities and the
benefits that flow from that diversity will foster the tolerance, acceptance and understanding that
will ultimately make race conscious admissions obsolete.
As President Ruth Simmons said from the witness stand in this case when asked about
the importance of diversity:
It’s very hard for me to overstate my conviction about the benefits that flow to all of these areas from a diverse undergraduate student body. I know something about the lack of diversity in one’s education. . . . My father was a janitor, my mother was a maid. They had been sharecroppers, they had few opportunities. I lived through that. I remember it. So to me, the benefits that flow to students is they get a better education, a deeper education, a truer education to deal with what they're going to have to deal with in life. To the institution, it makes for not just an enhanced learning environment but for the opportunity to be unparalleled in their standing because they offer something that is so indispensable for society. And for society, my goodness, I've spoken about the conflicts in society, how deeply they run, how they resurface from time to time. How can we imagine a world in which we are not creating leaders and citizens who have the capacity to
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mediate those differences? I cannot imagine it. And so it’s with great conviction that I say that we must continue to offer diverse undergraduate education to our young people to save our nation.

[Oct. 30 Tr. 54:11–55:15].

That eloquent testimony captures what is important about diversity in education. For

purposes of this case, at least for now, ensuring diversity at Harvard relies, in part, on race

conscious admissions. Harvard’s admission program passes constitutional muster in that it

satisfies the dictates of strict scrutiny. The students who are admitted to Harvard and choose to

attend will live and learn surrounded by all sorts of people, with all sorts of experiences, beliefs

and talents. They will have the opportunity to know and understand one another beyond race, as

whole individuals with unique histories and experiences. It is this, at Harvard and elsewhere that

will move us, one day, to the point where we see that race is a fact, but not the defining fact and

not the fact that tells us what is important, but we are not there yet. Until we are, race conscious

admissions programs that survive strict scrutiny will have an important place in society and help

ensure that colleges and universities can offer a diverse atmosphere that fosters learning,

improves scholarship, and encourages mutual respect and understanding.

SO ORDERED.

September 30, 2019

/s/ Allison D. Burroughs ALLISON D. BURROUGHS U.S. DISTRICT JUDGE

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 Case: 19-2005 Document: 00117556565 Page: 1 Date Filed: 02/25/2020 Entry ID: 6319897
No. 19-2005
IN THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
___________________________
STUDENTS FOR FAIR ADMISSIONS, INC.,
Plaintiff-Appellant
v.
PRESIDENT AND FELLOWS OF HARVARD COLLEGE,
Defendant-Appellee ___________________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS ___________________________
BRIEF FOR THE UNITED STATES AS AMICUS CURIAE SUPPORTING APPELLANT AND URGING REVERSAL
___________________________
ERIC S. DREIBAND Assistant Attorney General
ELLIOTT M. DAVIS Acting Principal Deputy Assistant Attorney General
THOMAS E. CHANDLER MATTHEW J. DONNELLY
Attorneys U.S. Department of Justice Civil Rights Division Appellate Section Benjamin Franklin Station P.O. Box 14403 Washington, D.C. 20044-4403 (202) 616-2788

Case: 19-2005 Document: 00117556565 Page: 2 Date Filed: 02/25/2020 Entry ID: 6319897
TABLE OF CONTENTS
PAGE
INTRODUCTION .....................................................................................................1
INTEREST OF THE UNITED STATES ..................................................................4
STATEMENT OF THE ISSUE.................................................................................5
STATEMENT OF THE CASE..................................................................................5
SUMMARY OF ARGUMENT .................................................................................8
ARGUMENT ...........................................................................................................10
I HARVARD FAILED TO PROVE THAT ITS USE OF RACE IS NARROWLY TAILORED ................................................11
A. Harvard Engages In Racial Balancing.....................................11
1. The Remarkably Stable Racial Composition Of Harvard’s Incoming Classes Reflects Racial Balancing ............................................................12
2. Harvard Achieves Racial Balancing By Considering Race Throughout The Admissions Process And Continually Monitoring And Reshaping The Class’s Racial Composition...................15
B. Harvard’s Use Of Race Penalizes Asian Americans................23
1. Harvard’s Own Statistics Reflect A Penalty Against Asian Americans................................................23
2. The District Court Relieved Harvard Of Its Obligation To Justify The Lower Personal Ratings It Assigns To Asian-American Applicants .......................................................................26
II HARVARD FAILED TO ARTICULATE A SUFFICIENTLY CONCRETE AND MEASURABLE INTEREST ..............................29

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TABLE OF CONTENTS (continued):

PAGE

CONCLUSION ........................................................................................................32

CERTIFICATE OF COMPLIANCE

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TABLE OF AUTHORITIES

CASES:

PAGE

City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989) (plurality opinion) .........................................................4

Fisher v. University of Tex. at Austin, 570 U.S. 297 (2013) ............................passim

Fisher v. University of Tex. at Austin, 136 S. Ct. 2198 (2016) ............. 16-17, 29, 30

Gratz v. Bollinger, 539 U.S. 244 (2003) .................................................................10

Grutter v. Bollinger, 137 F. Supp. 2d 821 (E.D. Mich. 2001) ................................21

Grutter v. Bollinger, 539 U.S. 306 (2003)........................................................passim

Heller v. Doe, 509 U.S. 312 (1993).........................................................................28

Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007) ........................................................10, 12

Republican Party of Minnesota v. White, 536 U.S. 765 (2002) ..............................28

STATUTE:

42 U.S.C. 2000d ..................................................................................................1, 10

RULE:

Federal Rule of Appellate Procedure 29(a)(2)...........................................................5

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Case: 19-2005 Document: 00117556565 Page: 5 Date Filed: 02/25/2020 Entry ID: 6319897
IN THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
___________________________
No. 19-2005 STUDENTS FOR FAIR ADMISSIONS, INC.,
Plaintiff-Appellant
v. PRESIDENT AND FELLOWS OF HARVARD COLLEGE,
Defendant-Appellee ___________________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS ___________________________
BRIEF FOR THE UNITED STATES AS AMICUS CURIAE SUPPORTING APPELLANT AND URGING REVERSAL
___________________________ INTRODUCTION
Title VI of the Civil Rights Act of 1964 commands that “[n]o person in the United States shall * * * be subjected to discrimination under any program or
activity receiving Federal financial assistance” based on her “race, color, or national origin.” 42 U.S.C. 2000d. Although the Supreme Court has held that colleges receiving federal funds may nevertheless consider applicants’ race in
certain limited circumstances, it has made clear that colleges may do so only if

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Entry ID: 6319897

they satisfy strict scrutiny—that is, only if the college demonstrates that its use of race is narrowly tailored to a compelling interest.
Harvard College receives millions of dollars in federal taxpayer-financed assistance every year. By accepting federal funding, Harvard subjected itself to Title VI’s stringent restrictions on the use of race. As Harvard undisputedly considers applicants’ race when selecting its incoming freshman class, it bore the burden at trial of proving that its consideration of race in the admissions process is narrowly tailored to a cognizable compelling interest. Yet the unvarnished record shows that Harvard’s use of race is hardly tailored at all.
The trial record established that Harvard actively engages in racial balancing that Supreme Court precedent flatly forbids. Indeed, the racial composition of Harvard’s admitted class is strikingly stable from year to year. That result is no accident. The school considers applicants’ race at virtually every step, from rating applicants to winnowing the field of applicants when attempting to avoid an oversubscribed class. And its inclusion of race in the analysis frequently makes a dispositive difference. The district court found that Harvard’s use of race was “determinative” for “approximately 45% of all admitted African American and Hispanic applicants.” ADD84. Moreover, Harvard meticulously tracks and shapes the racial makeup of its emerging incoming class throughout the process, continuously comparing the new class’s racial composition with that of the

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previous year. This overt engineering of racial stasis bears no resemblance to the flexible, nonmechanical “plus” factor that the Supreme Court’s cases to date have permitted.
The evidence also showed that Harvard’s process has repeatedly penalized one particular racial group: Asian Americans. Indeed, Harvard concedes that eliminating consideration of race would increase Asian-American admissions while decreasing those of Harvard’s favored racial groups. The resulting racial penalty stems in part from one component of Harvard’s admissions rubric—a nebulous and entirely subjective “personal rating”—that consistently and inexplicably produces poorer scores for Asian Americans than for other applicants. That disparity is undisputed, and unexplained. Harvard bore, but did not carry, the burden of proving that this disparity is not the product of racial discrimination. As the district court observed, based on the trial record, one could not rule out racial discrimination as the source.
Despite highlighting various holes in Harvard’s evidence, the district court credited the school’s assurances that it does not employ racial biases in the personal rating, and gave the school the benefit of the doubt when the experts’ analyses conflicted. But strict scrutiny demanded much more. Faced with the results of Harvard’s process—a barely fluctuating racial composition and less favorable evaluations of Asian Americans—and the mechanisms that produced

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them, the court should have put Harvard to its proof. And even if the parties’ evidence were in equipoise, a tie should have gone to the plaintiff, not to Harvard. On this record, the court should have found that Harvard’s failure to demonstrate affirmatively that its admissions process meets the Supreme Court’s stringent criteria was fatal.
The wisdom of race-based admissions policies like Harvard’s is subject to vigorous debate. But Title VI and Supreme Court precedent impose limitations on Harvard’s ability to consider race in its admissions process—limitations that Harvard has not respected. It now falls to this Court to enforce these limitations and reverse the district court’s judgment.

INTEREST OF THE UNITED STATES The United States has a substantial interest in protecting its citizens from racial discrimination. The United States enforces multiple statutes that prohibit racial discrimination in public accommodations, housing, voting, education, and employment, among other contexts. It also has a fundamental interest in ensuring “that public dollars, drawn from the tax contributions of all citizens, do not serve to finance the evil of private prejudice.” City of Richmond v. J.A. Croson Co., 488 U.S. 469, 492 (1989) (plurality opinion). As particularly relevant here, the United States distributes billions of dollars in federal financial assistance every year, and it

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has a significant interest in ensuring that recipients of such assistance comply with Title VI’s antidiscrimination mandate.
The United States respectfully submits this brief pursuant to Federal Rule of Appellate Procedure 29(a)(2).

STATEMENT OF THE ISSUE Whether Harvard carried its burden at trial of proving that its overt consideration of race in its admissions process is narrowly tailored to advance a compelling interest, as required by Title VI and Supreme Court precedent.

STATEMENT OF THE CASE 1. Harvard considers race throughout its admission process. See ADD17-18; ADD21-24; ADD26-31; Pl.’s Br. 6-9. Admissions officers assign four numerical ratings referred to as the academic, extracurricular, athletic, and personal ratings. ADD18. Ratings generally range from 1 to 4, with 1 being the strongest. ADD18-19. Admissions officers also assign an overall rating. ADD18. Harvard uses race in the overall rating and in admission determinations made by its subcommittees and its full committee. ADD21-26. Throughout the admissions cycle, admissions leaders closely monitor the racial composition of the applicant pool and tentatively admitted students and compare them to the previous year’s racial composition. ADD27-28. Harvard’s close attention to its racial composition

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has produced a remarkably consistent racial balance in the admitted class from year to year. JA4434-4435; JA4446-4447; see Part I.A.1., infra.
Harvard’s use of race benefits African-American and Hispanic applicants. For example, as the district court found, “race is a determinative tip for approximately 45% of all admitted African American and Hispanic applicants.” ADD84; see also JA6121; JA3063-3065 (Card); JA5749.
2. Plaintiff Students for Fair Admissions (SFFA) commenced this action alleging, inter alia, that Harvard violates Title VI through its use of race in its admissions process. JA108. After denying the parties’ cross-motions for summary judgment, ADD132-133, the district court conducted a three-week bench trial.
Much of the trial centered on disparities in Asian Americans’ admission rates and personal ratings. ADD53-56. The personal rating purportedly captures intangible qualities such as “integrity, helpfulness, courage, kindness, fortitude, empathy, self-confidence, leadership ability, maturity, or grit.” ADD20. And it carries significant weight in the admissions process: although fewer than 20% of applicants receive a personal rating of 1 or 2, they represent almost 80% of the admitted class. JA2215-2216 (Arcidiacono); JA5997. Admissions officers testified that they did not directly consider race in the four subsidiary profile ratings, including the personal rating, ADD45, but Harvard never gave them written guidance on how to use race in assigning ratings until 2018, when it revised

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its reading procedures on the eve of trial, ADD17 (citing JA4586-4590; JA647-649 (Fitzsimmons)). Moreover, the racial distribution of the personal rating nearly mirrors that of the overall rating, for which Harvard admits it uses race. JA22282229, JA2255-2258 (Fitzsimmons); JA6005-6006.
Both sides relied heavily on expert statisticians, who modeled Harvard’s admissions process based on data from Harvard’s applicant classes of 2014 through 2019. ADD50-51; ADD62-63. The experts offered competing analyses of whether Harvard’s process discriminated against Asian Americans, and whether race infected the personal rating. ADD53-80. The district court found both experts’ models “worthy of consideration.” ADD75. With the personal rating excluded, both experts’ models show Harvard’s program inflicts a statistically significant penalty against Asian-American applicants. ADD66; ADD74-79; JA2317-2318 (Arcidiacono); JA3149-3152 (Card).1
After trial, the district court concluded that Harvard has a compelling interest in student-body diversity that justified its use of race in its admissions program and that its program is narrowly tailored to that interest. ADD122-127. The court held that Harvard uses race as a “plus” factor “in a flexible, nonmechanical way.” ADD108 (quoting Grutter v. Bollinger, 539 U.S. 306, 334

1 The district court discusses a model that blends aspects of both experts’ models. ADD79. But it did not publish that model’s numerical results, making those results impossible to scrutinize.

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(2003)). The court also concluded that Harvard had “not imposed racial quotas or otherwise engaged in impermissible racial balancing.” ADD83. The court acknowledged that narrow tailoring requires “that a race-conscious admissions program not unduly harm members of any racial group.” ADD109 (citations omitted). After speculating about possible causes of disparities in the personal rating, the court concluded that those disparities “did not burden Asian American applicants significantly more than Harvard’s race-conscious policies burdened white applicants.” ADD109-111. Finally, the court concluded that “no workable and available race-neutral alternatives would allow” Harvard “to achieve a diverse student body while still maintaining its standards for academic excellence.” ADD122.

SUMMARY OF ARGUMENT Harvard intentionally uses race in its admissions process. It thus bore the burden to prove that its process satisfies strict scrutiny by showing that its use of race is narrowly tailored to a compelling interest. Harvard did not carry its burden. I. Even assuming that Harvard has articulated a sufficiently concrete interest in diversity to warrant any consideration of race, Harvard failed to show that its consideration of race is narrowly tailored, for at least two reasons. A. First, Harvard’s process entails prohibited racial balancing. The manifest steadiness of the racial composition of successive admitted classes speaks

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for itself. Harvard’s consideration of race throughout the admissions process and its constant monitoring of the class that is taking shape are the key mechanisms by which Harvard has achieved such remarkable stability from one year to the next. And Harvard’s own internal study of race-neutral alternatives confirms that the school’s goal is maintaining consistency from year to year. The district court approved Harvard’s process as the mere application of a “plus” factor permitted by precedent. But in reality, Harvard’s process employs a system of de facto quotas.
B. Second, Harvard’s process imposes a racial penalty by systematically disfavoring Asian-American applicants. It does so in part through the subjective personal rating that admissions officers apply with minimal guidance or supervision. That rating produces consistently poorer scores for Asian Americans. Harvard did not prove that the personal rating is race-neutral. The district court nevertheless ruled for Harvard by positing alternative explanations that might account for the disparity. In doing so, it relieved Harvard of its well-established burden of proof.
II. Because Harvard failed to show that its process is narrowly tailored, the Court need not decide whether Harvard has asserted a sufficient diversity interest. But to rule for Harvard, the Court would need to confront this issue headon. Articulating a concrete objective is critical to ensure that considering race is not an end in itself, and to enable judicial review of a school’s claim that its

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asserted ends cannot effectively be achieved by alternative, race-neutral means. Harvard, however, has not articulated any such objective. Although its process demonstrably results in (and is engineered to produce) incoming classes with consistent racial compositions, it does not claim a compelling interest in maintaining such stability. Nor does Harvard identify any other concrete, cognizable educational goal by which its use of race can be tested. That failure frustrates judicial review. And Harvard’s failure to provide an objective measure should not redound to its benefit. Unless a court can conclude with confidence that a school’s use of race is lawful, it is not.

ARGUMENT Title VI forbids schools that receive federal assistance from discriminating based on race. 42 U.S.C. 2000d. A recipient violates that prohibition by engaging in discrimination barred by the Equal Protection Clause. See Gratz v. Bollinger, 539 U.S. 244, 276 n.23 (2003). Because Harvard receives Title VI funds and considers race in its admissions process, it must satisfy strict scrutiny, which requires showing that its use of race is narrowly tailored to serve a compelling interest. E.g., Fisher v. University of Tex. at Austin, 570 U.S. 297, 309-311 (2013) (Fisher I); Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 720 (2007). The district court erred in concluding that Harvard carried its burden.

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I HARVARD FAILED TO PROVE THAT ITS USE OF RACE IS
NARROWLY TAILORED Strict scrutiny required Harvard to “prove that the means chosen by” the school to achieve its stated interest in diversity “are narrowly tailored to that goal.” Fisher I, 570 U.S. at 311. “On this point,” Harvard “receives no deference.” Ibid. Whether its chosen means for attaining racial diversity are “‘specifically and narrowly framed to accomplish that purpose’” is a question “for the courts, not for university administrators.” Ibid. (quoting Grutter, 539 U.S. at 333). Harvard did not carry that burden. The evidence shows that it engages in racial balancing and that its process imposes an unlawful racial penalty on Asian-American applicants. A. Harvard Engages In Racial Balancing “Outright racial balancing” is “patently unconstitutional” under the Equal Protection Clause, Grutter, 539 U.S. at 330, 343, and thus also violates Title VI. Imposing flat racial quotas clearly violates that prohibition. See id. at 334 (“To be narrowly tailored, a race-conscious admissions program cannot use a quota system.”). But as the district court recognized, forbidden racial balancing can exist even if a school does not seek precise, perfectly stable numbers. “[A] university could run afoul of Title VI’s prohibition on quotas even where it stopped short of defining a specific percentage and instead allowed some fluctuation around a

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particular number.” ADD113 (citing Parents Involved, 551 U.S. at 712). The
record shows that Harvard has engaged in that kind of racial balancing.
1. The Remarkably Stable Racial Composition Of Harvard’s Incoming Classes Reflects Racial Balancing
a. The racial breakdown of Harvard’s admitted classes over time reflects
that they are the product of deliberate racial balancing. The following table shows
the minority racial composition of Harvard’s admitted classes over an eight-year
span, calculated using what Harvard now calls its “Old Methodology”:
Percentage of Admitted Class by Race – Harvard’s Old Methodology Class Class Class Class Class Class Class Class Range of of of of of of of of 2010 2011 2012 2013 2014 2015 2016 2017
Asian 17.6 19.5 19.1 17.5 19.8 19.3 20.3 19.5 2.8 American African 10.4 10.5 10.0 10.4 11.1 11.6 10.0 11.4 1.6 American Hispanic 9.7 9.9 8.9 10.6 8.8 11.1 9.3 10.4 2.3 American Combined 20.1 20.4 18.9 21.0 19.9 22.7 19.3 21.8 3.8 African American
and Hispanic American
JA4434-4435. The stability of each minority race’s representation in the class over
time is striking. The percentage of each class consisting of African Americans
stayed within a 1.6-percentage-point range (10.0% to 11.6%). Likewise, the
percentage of Hispanic Americans stayed within a 2.3-percentage-point band

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(8.8% to 11.1%). The combined percentage of those two groups varied no more

than 3.8 percentage points (18.9% to 22.7%).

Harvard now prefers a different methodology (the “New Methodology”).

See ADD28 & n.22 (explaining methodology preference). But that new rubric

paints the same jarring picture for the years analyzed (2014-2017):

Percentage of Admitted Class by Race – Harvard’s New Methodology

Class of Class of Class of Class of

Range

2014

2015

2016

2017

Asian

17.9

17.6

20.5

19.9

2.9

American

African

11.0

11.6

10.0

11.4

1.6

American

Hispanic

10.0

12.1

11.1

11.5

2.1

American

Combined 21.0

23.7

21.1

22.9

2.7

African

American

and

Hispanic

American

JA4446-4447. Once again, the fraction of each year’s admitted class composed of

members of particular races remained remarkably stable. The percentage of

African Americans stayed within the same 1.6-percentage-point range (10.0% to

11.6%), and that of Hispanic Americans stayed within a 2.1-percentage-point band

(10.0% to 12.1%). And the combined percentage of those two groups under

Harvard’s preferred methodology varied only within 2.7 percentage points (21.0%

to 23.7%).

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These numbers speak for themselves. The minimal variation, including in the percentages of underrepresented minorities that Harvard seeks to benefit, over a multi-year period is much narrower than the 6.6-percentage-point range in underrepresented minorities the Supreme Court sustained in Grutter. 539 U.S. at 336.
b. The district court discounted those stable percentages as evidence of racial balancing. ADD80-82. The court relied on Harvard’s repackaging of the same data using a different, irrelevant metric that compared variation within each racial group’s representation year by year. ADD81 (citing JA6114-6115; JA57355742). For example, that metric portrays the 1.6-percentage-point decline in the percentage of African Americans from 2015 (11.6%) to 2016 (10.0%) as a drop of more than 13%. But that comparison elides the central question: how stable is the racial composition of the class over time.
A simple example illustrates the court’s error. Suppose racial group A fluctuates back and forth between 1% and 2% of the class from year to year, and racial group B similarly fluctuates between 10% and 11%. In any year, each group increases or decreases by only one percentage point. If that pattern persisted for years, it would be evidence of racial balancing. Yet Harvard’s intra-groupcomparison methodology that the district court adopted tells an entirely different story. For group A, it would portray the one-percentage-point fluctuation between

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1% and 2% as a series of 100% increases followed by 50% decreases. And for group B, Harvard’s method would instead depict the same pattern of onepercentage-point increases and decreases as a series of 10% increases followed by 9.1% decreases. That analysis distorts the changes in the class’s composition, arbitrarily magnifying the size of changes in a group that is smaller to start. It accordingly obfuscates the parallel stability in the two groups’ representation in the class over time. The district court should have rejected Harvard’s effort to obscure the results its process has produced.
2. Harvard Achieves Racial Balancing By Considering Race Throughout The Admissions Process And Continually Monitoring And Reshaping The Class’s Racial Composition
The decidedly stable racial composition of Harvard’s incoming classes should come as no surprise. The school considers race at virtually every step of its admission process. And its officials constantly monitor and continually reshape the racial makeup of each admitted class as it emerges. Those mechanisms confirm that Harvard’s racial balancing is no accident; it is engineered.
a. Harvard considers race at nearly every step of its admissions process. Admissions readers “generally begin with the application summary sheet”—“a two or three page document that is prepopulated with much of the key information about an applicant,” including the applicant’s race. ADD22. The admissions office’s regional subcommittees consider race in making initial admissions

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recommendations to the full committee. ADD24. During some subcommittee meetings, the applicant’s summary sheet, including his race, is projected on a large screen for all decisionmakers to see. ADD23-24; see also, e.g., JA2108-2109 (Ray). Admissions officers may give an applicant a racial bonus even when an application does not discuss the applicant’s racial identity. ADD13; ADD104; see also, e.g., JA654-657 (Fitzsimmons); JA1117-1118 (Looby). Finally, admissions officers again consider race during the so-called “lop process,” when the committees cut down their list of prospective admitted students at the end of the cycle. ADD26; see also JA2046-2048 (Kim); JA2113-2116 (Ray). Indeed, race represents one of the five important factors on the “lop” sheet. JA4156 (lop sheet example); JA2113-2116 (Ray).
Harvard’s multi-stage consideration of race far exceeds the “one stage only” use of race approved by the Supreme Court in Fisher v. University of Texas at Austin, 136 S. Ct. 2198, 2207 (2016) (Fisher II). In upholding the university’s process in that case, the Court stressed that the University of Texas considered race at only one step: in calculating a “Personal Achievement Score.” Id. at 22062207. That score was one component of an applicant’s “Personal Achievement Index.” Id. at 2205-2206. Admissions officers then made admissions decisions based on the Personal Achievement Index and a race-neutral “Academic Index.” Id. at 2205, 2207. Crucially, they “ma[d]e that decision without knowing the

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applicant’s race.” Id. at 2207. As the Supreme Court observed, race was thus “but a ‘factor of a factor of a factor’ in the holistic-review calculus.” Ibid. (citation omitted). “Race enters the admissions process, then, at one stage and one stage only—the calculation of the [Personal Achievement Score].” Ibid.
In contrast, race infiltrates Harvard’s admissions process at essentially every stage. Harvard admissions officers consider race when they score applicants, when they make initial admissions decisions, and when they winnow the list of possible admittees. That continual consideration of race for each applicant provides a ready way for the school to maintain the stable composition reflected in the data.
Moreover, Harvard’s process accords significant weight to race—and that weight makes a material difference. For example, Harvard’s expert presented an analysis of “average marginal effects,” i.e., the change in the likelihood of admission associated with changing one particular variable. ADD65-66; ADD7980. For example, if left-handed applicants’ average chance of being admitted is 10%, and a school establishes a preference for left-handed applicants that increases their average chance of being admitted to 15%, the average marginal effect is five percentage points—the difference between the actual rate (15% with the preference) and the base rate (10% without it). Here, Harvard’s expert testified that the base rate for African-American applicants is approximately 3%, and the average marginal effect of being African American in Harvard’s process is six

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percentage points. JA3111-3112, JA3247-3248 (Card). Harvard’s process thus triples the likelihood of being admitted for African-American applicants (from 3% to 9%). Similarly, Harvard’s expert testified that the average marginal effect for being Hispanic was 3.73 percentage points, which roughly doubles the chances of admission for Hispanics. JA3111-3112. The effect of race is even more pronounced for the strongest applicants. Harvard’s own expert calculated that, for the strongest applicants, the average marginal effect of Hispanic identity was approximately 30 percentage points, and the average marginal effect of AfricanAmerican identity was more than 40 percentage points. See JA6111-6112; JA3042-3046 (Card).
The significant boost that Harvard’s process accords minorities that it favors affects admissions outcomes. The district court found that the bump was “determinative” for “approximately 45% of all admitted African American and Hispanic applicants.” ADD84. And “[a]t least 10% of Harvard’s admitted class, including more than one third of the admitted Hispanics and more than half of the admitted African Americans, would most likely not be admitted in the absence of Harvard’s race-conscious admissions process.” Ibid. Harvard’s process thus not only has the potential to alter the racial composition of its incoming classes, but in fact does so.

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b. When Harvard admissions officials consider each applicant’s race, they do not consider the race of that applicant in isolation as part of an individualized inquiry. Instead, throughout the admissions cycle, admissions leaders track the racial composition of the entire class. ADD27. They do so to see how the prospective class is “shaping up,” JA1392-1393 (McGrath), and then convey that information to admissions officials making decisions.
Throughout the process, Harvard’s admissions leaders secure as many as twenty “one-pagers”—documents that compare the racial demographics of the projected class to the demographics of the previous year’s class. JA1392-1397 (McGrath); JA5982 (documenting receipt of one-pagers and similar documents); JA1869-1883 (Yong). The district court found that the dean would “share[] the breakdown of the admitted class as reflected on the one-pagers with the full committee from time to time.” ADD28. “For example, at the start of the full Admissions Committee meetings, he usually states how many students are being recommended for admission by the subcommittees and how the breakdown of the class compares to the prior year in terms of racial identities and other demographics.” Ibid. The dean also requested “a one pager and his ethnic stats” before the lopping process. JA4112 (e-mail reflecting Dean Fitzsimmons’s request).

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The trial evidence also leaves little doubt what Harvard’s admissions leaders are looking for: maintaining Harvard’s current racial composition. The “Smith Committee”—a group of three deans—was tasked in 2017 with examining raceneutral alternatives to Harvard’s current race-based process. ADD40. That committee concluded “that no workable race-neutral alternatives will currently permit Harvard to achieve the level of racial diversity it has credibly found necessary for its educational mission.” ADD83. But the committee’s own description of the school’s diversity objective speaks volumes. The committee focused on achieving “a student body comparable in diversity to current classes” as well as “levels of racial diversity commensurate with those at the College today.” JA4421 (emphases added). It analyzed the magnitude of a race-neutral alternative necessary “to reach the current level of” underrepresented minorities “admitted to Harvard.” JA4426 (emphasis added). And it weighed the impact of another race-neutral alternative by determining what would be necessary “to produce a combined proportion of” underrepresented minorities “comparable to that of Harvard’s current classes.” JA4430 (emphasis added). The committee’s chair conceded that “[they] weren’t looking to go backwards for any particular racial group.” JA1841 (Smith); accord JA1830 (Smith).
It is little wonder Harvard’s leaders failed to identify an adequate raceneutral alternative that would meet the school’s goal, given that their goal was to

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maintain Harvard’s existing racial makeup. For present purposes, the key point is that Harvard’s leaders are not only acutely aware of each admitted class’s racial composition and how it compares to previous classes, but they actively seek to maintain that makeup. Seeking to “assure within its student body some specified percentage of a particular group merely because of its race or ethnic origin” “amount[s] to outright racial balancing.” Grutter, 539 U.S. at 329-330 (citations omitted).
The district court downplayed this evidence of racial balancing. It observed that the law school in Grutter also issued reports that tracked racial composition. See ADD115 (citing Grutter, 539 U.S. at 336). But Harvard’s ongoing reliance on such reports is materially different. The Court in Grutter did not indicate, for example, that the reports the law school considered compared the racial composition to the prior year’s composition. See also Grutter v. Bollinger, 137 F. Supp. 2d 821, 832 (E.D. Mich. 2001) (daily reports tracked racial composition of current applicant pool), rev’d, 288 F.3d 732 (6th Cir. 2002) (en banc), aff’d, 539 U.S. 306 (2003). Nor was there any indication that the law school’s dean read the comparative statistics aloud at the start of full committee meetings convened to discuss admitting applicants.
The district court also noted that Harvard considers the racial distribution of its admitted students to assist in predicting its yield rate, so as to avoid over-

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enrolling the class. ADD29; ADD116. But Harvard’s one-pagers most often do not include yield rates. See JA4130-4146. Moreover, admissions officers testified that the Dean discussed racial breakdowns of the prospective class, not that he told them to think about their yield rate. See, e.g., JA2109-2113 (Ray); JA2516-2518 (Howrigan). In any event, the previous year’s racial composition itself has no apparent bearing on the yield rate. Harvard thus has not explained why—apart from the school’s objective of racial balancing—it provided that particular datapoint to decisionmakers. At any rate, contrary to the district court’s suggestion, ADD116, nothing in the Supreme Court’s decisions permits a school to favor or disfavor applicants of a particular race based on generalizations about their behavior, such as the likelihood that they will accept an offer of admission.
* * * Viewed in light of that and other trial evidence, the district court’s conclusion that Harvard merely “considered” race “as a ‘plus’ factor in the context of individualized consideration of” individual applicants, ADD108 (citation omitted), does not hold up. Harvard takes account of race throughout its process. And that process consistently produces incoming classes with strikingly similar racial compositions. Wherever the outer limits of permissible consideration of race lie under the Supreme Court’s precedents, Harvard’s practice exceeds them.

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B. Harvard’s Use Of Race Penalizes Asian Americans Harvard’s failure to refute the powerful evidence that it engages in racial
balancing should be fatal. But the school’s admissions process also is invalid for an additional reason. A race-based admissions program that penalizes “individuals who are not members of the favored racial and ethnic groups” cannot satisfy narrow tailoring. Grutter, 539 U.S. at 341 (citation omitted). The predictable and now proven result of Harvard’s efforts to benefit African Americans and Hispanics has been to impose a racial penalty on Asian Americans. Even if Harvard were not actively seeking to maintain the overall racial composition of its incoming classes, it may not ignore the harmful effects of its efforts to assist certain racial groups on the members of another.
1. Harvard’s Own Statistics Reflect A Penalty Against Asian Americans The parties disputed the statistical evidence extensively, but one point should be common ground: Asian-American applicants have become a casualty of Harvard’s efforts to boost members of other races. The plaintiff points (at 29-43) to statistical models showing that Asian Americans fare less well than white applicants when one variable—the personal rating each applicant was assigned—is excluded from the model. The district court downplayed that evidence based on its view that the personal rating should not be excluded from the models. ADD68-73; see also ADD109-112. The resolution of that statistical-methodology dispute

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depends, in turn, on whether the personal rating itself is influenced by race. ADD68-73; ADD109; Pl.’s Br. 30. As discussed below, strong evidence exists to support the plaintiff’s position that the personal rating is influenced by race, and the district court improperly failed to require Harvard to carry its burden of proving otherwise. See Part I.B.2., infra. But even setting aside the dispute about the competing statistical models for assessing whether Harvard penalizes Asian Americans as compared to white applicants, the evidence clearly shows that Harvard imposes a racial penalty on Asian Americans as compared to members of other minority races that Harvard favors.
Grutter’s test requires examining burdens imposed on “individuals who are not members of the favored racial and ethnic groups.” Grutter, 539 U.S. at 341 (citation omitted). That test necessarily contemplates a comparison between members of racial groups that are favored and those that are not. The data relied upon by Harvard and the district court demonstrate that Harvard imposes a penalty on Asian Americans as compared to African Americans and Hispanics.
Based on Harvard’s calculations, the district court found that “[i]n the absence of any other adjustments to Harvard’s admissions policy, eliminating consideration of race would cause the African-American representation at Harvard to decline from approximately 14% to 6% of the student population and Hispanic representation to decline from 14% to 9%.” ADD84; JA4420. Conversely, using

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the framework accepted by the district court, Asian-American representation at Harvard would, under a race-neutral admissions program, increase from 24% to 27%. See JA6121. Put differently, Harvard’s use of race inflicts an 11.1% penalty (i.e., the decrease from 27% representation to 24% representation) on Asian Americans while simultaneously providing a 133% bonus (i.e., the increase from 6% representation to 14% representation) to African Americans.
In addition, data Harvard submitted show that the percentage of Asian Americans admitted in each class was, without exception, smaller in a 40-year span (from 1980 to 2019) than the percentage of Asian Americans in the applicant pool. JA5743-5744. In contrast, the percentage of African Americans admitted in each incoming class was almost invariably higher than the percentage of AfricanAmerican students who applied. See ibid. The same is true of Hispanics. Ibid.
The district court never grappled with this issue in concluding that Harvard does not impose a racial penalty. It focused on comparing Asian-American applicants with white applicants. See ADD109-112. But that comparison is incomplete. Nothing in Grutter or the Supreme Court’s other decisions suggests that a court should compare the members of a college’s least-favored race only against members of its second-least-favored race, or that a school may freely discriminate in favor of one minority racial group and against another. Instead, Grutter’s framework contemplates a spectrum-wide comparison between

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Harvard’s disfavored racial groups and its “favored racial and ethnic groups,” Grutter, 539 U.S. at 341 (citation omitted)—in this case, African-American and Hispanic applicants.
2. The District Court Relieved Harvard Of Its Obligation To Justify The Lower Personal Ratings It Assigns To Asian-American Applicants
Although the starkly disparate outcomes for Asian Americans as compared to other minority groups may stem from multiple aspects of Harvard’s race-based admissions process, it is clear that Harvard’s subjective personal rating of applicants is a contributor. The personal rating plays a significant role in admissions decisions. And the district court found that, “holding constant any reasonable set of observable characteristics,” “the data demonstrates a statistically significant and negative relationship between Asian American identity and the personal rating assigned by Harvard admissions officers.” ADD69. Although the court credited Harvard’s assertions that its “admissions officers do not believe that Asian American applicants, as a group, have worse personal qualities than other applicants,” it found that they “assign Asian American applicants personal ratings that are, on average, slightly weaker than those assigned to applicants from other racial groups.” ADD55 (citing JA4530). In other words, Harvard’s admissions officers tended to evaluate Asian Americans, as compared to members of other racial groups, as having less integrity, being less confident, constituting lessqualified leaders, and so on.

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The district court acknowledged that why “Asian American applicants score lower on the personal rating” was an important question. ADD109. If that personal rating itself embodies racial bias, then it is one mechanism by which Harvard penalizes Asian Americans. Moreover, if the personal rating is influenced by race, then it should be excluded from statistical models designed to measure the effect of race on admissions decisions. See ADD63 (citing JA2253-2254, JA2377 (Arcidiacono) & JA3219-3220 (Card)); ADD73. That is significant because, when the personal rating is excluded, all of the models presented show a statistically significant penalty against Asian Americans as compared to white applicants. ADD66; ADD74-79; JA2317-2318 (Arcidiacono); JA3149-3152 (Card); see also Pl.’s Br. 30.
The district court posited various potential explanations for Asian Americans’ undisputedly lower personal-rating scores. ADD109-110. It acknowledged that the disparity might reflect “overt discrimination or implicit bias at work to the disadvantage of Asian American applicants.” ADD110. Alternatively, the court speculated “that the self-selected group of Asian Americans that applied to Harvard during the years” at issue might “not possess the personal qualities that Harvard is looking for at the same rate as white applicants.” ADD109. Ultimately the court concluded that it “c[ould not] definitively explain the difference in the personal ratings.” ADD110. That

Case: 19-2005 Document: 00117556565 Page: 32
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Date Filed: 02/25/2020

Entry ID: 6319897

uncertainty should have ended the analysis and resulted in a ruling against Harvard, which “must prove” that its “means chosen” to attain diversity “are narrowly tailored to that goal.” Fisher I, 570 U.S. at 311.
Instead, the district court excused Harvard from carrying its burden by treating the lack of conclusive evidence as to why Harvard assigns lower personal ratings to Asian Americans as a reason to sustain Harvard’s process. See ADD109-110. Finding “no evidence of any discriminatory animus or conscious prejudice,” the court concluded that the disparity “reflects neither intentional discrimination against Asian American applicants nor a process that was insufficiently tailored to avoid the potential for unintended discrimination.” ADD111. That analysis has things backward. Unlike rational-basis review, under which a policy must be sustained so long as “there is any reasonably conceivable state of facts” that could support it, Heller v. Doe, 509 U.S. 312, 320 (1993) (citation omitted), strict scrutiny requires more than “assertion and conjecture,” Republican Party of Minn. v. White, 536 U.S. 765, 781 (2002) (citation omitted). The district court also dismissed the statistically significant disparity as “small,” and because it “did not burden Asian American applicants significantly more than Harvard’s race-conscious policies burdened white applicants.” ADD110-111. But the court cited no legal authority for disregarding the penalty imposed on Asian Americans on either ground.

Case: 19-2005 Document: 00117556565 Page: 33
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Date Filed: 02/25/2020

Entry ID: 6319897

II HARVARD FAILED TO ARTICULATE A SUFFICIENTLY CONCRETE
AND MEASURABLE INTEREST Given Harvard’s failure to prove that its use of race in admissions is
narrowly tailored to the school’s asserted interest, this Court need not address
whether Harvard’s asserted interest in diversity is sufficiently concrete to satisfy
strict scrutiny. To sustain Harvard’s policy, however, the Court would also have to
confront whether Harvard has articulated an interest that is “sufficiently
measurable to permit judicial scrutiny.” Fisher II, 136 S. Ct. at 2211. Apart from
an apparent and impermissible objective of maintaining the existing racial
composition of its class, see Part I.A., supra, Harvard has offered only an
“elusory” and “amorphous” diversity goal that is incapable of objective analysis.
Fisher II, 136 S. Ct. at 2211.
Harvard’s own officials testified repeatedly that its diversity objective could
not be measured. For example, when asked by the district court how Harvard
“measure[d] what’s enough,” the college’s dean responded:
I don’t think there’s like a quantitative number. What it is, is that when you have a lot of people who share different backgrounds and experiences and no one is more salient than others; that is, you have just a lot of ways that you have to understand each person as an individual, that you’ve had enough experiences where your notions of stereotypes are broken, I think that educational experience is what gets us [t]o that point.

Case: 19-2005 Document: 00117556565 Page: 34
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Date Filed: 02/25/2020

Entry ID: 6319897

JA1750 (Khurana); see also, e.g., JA660 (Fitzsimmons, Dean of Admissions) (“There are no formulas. There are no sort of numerical guidelines that would do justice to anything like that. It just isn’t that simple.”). And Harvard’s outside diversity expert candidly explained that the school lacks the “capacity to know when enough diversity is enough diversity.” JA2784 (Simmons); accord JA2801.
Harvard’s admitted inability to measure progress toward its stated diversity goal independently renders its race-based process infirm. See Fisher II, 136 S. Ct. at 2210-2211. And deeming such an interest sufficient would frustrate, if not foreclose, meaningful judicial review. Courts cannot perform their function of carefully scrutinizing whether a school’s policy is narrowly tailored to advance a compelling interest, see Fisher I, 570 U.S. at 311, if progress toward that interest using a particular policy cannot be assessed.
The lack of a measurable interest in diversity also impedes judicial scrutiny of whether adequate race-neutral alternatives are available. Plaintiffs here contend (at 56-62) that viable alternatives to achieve racial and socioeconomic diversity exist but that Harvard considered such alternatives only belatedly and superficially after this litigation was underway. The district court found that none of the proposed alternatives would enable Harvard to “reach the level of racial diversity that it believes necessary.” ADD85 (emphasis added); accord ADD83. But because Harvard never articulated any measurable diversity objective, the court

Case: 19-2005 Document: 00117556565 Page: 35
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Date Filed: 02/25/2020

Entry ID: 6319897

had no way of verifying Harvard’s bare assertion that no race-neutral alternative could adequately advance the same objective. The court in effect was forced to take the school’s word for it—precisely the type of “deference” the Supreme Court has prohibited. Fisher I, 570 U.S. at 311.
In addition, although the Supreme Court has emphasized that “raceconscious admissions policies must be limited in time,” Grutter, 539 U.S. at 342, a court’s inability to compare a school’s policy against any objective measure risks “[e]nshrining a permanent justification for racial preferences,” which “would offend * * * fundamental equal protection principle[s].” Ibid. Harvard’s inability to identify objectively measurable goals that its race-based admissions process advances provides further reason to hold that it has failed to carry its burden.

Case: 19-2005 Document: 00117556565 Page: 36
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Date Filed: 02/25/2020

Entry ID: 6319897

CONCLUSION
The judgment below should be reversed.
Respectfully submitted,
ERIC S. DREIBAND Assistant Attorney General
ELLIOTT M. DAVIS Acting Principal Deputy Assistant Attorney General
s/ Matthew J. Donnelly THOMAS E. CHANDLER MATTHEW J. DONNELLY
Attorneys U.S. Department of Justice Civil Rights Division Appellate Section Benjamin Franklin Station P.O. Box 14403 Washington, D.C. 20044-4403 (202) 616-2788

Case: 19-2005 Document: 00117556565 Page: 37 Date Filed: 02/25/2020 Entry ID: 6319897

CERTIFICATE OF COMPLIANCE I certify that the attached BRIEF FOR THE UNITED STATES AS AMICUS CURIAE SUPPORTING APPELLANT AND URGING REVERSAL: (1) complies with the type-volume limitation of Federal Rules of Appellate Procedure 29(a)(5) and 32(a)(7)(B) because, excluding the parts of the document exempted by Federal Rule of Appellate Procedure 32(f), it contains 6488 words; and (2) complies with the typeface requirements of Federal Rule of Appellate Procedure 32(a)(5) and the type-style requirements of Federal Rule of Appellate Procedure 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2019, in 14-point Times New Roman font.

Dated: February 25, 2020

s/ Matthew J. Donnelly MATTHEW J. DONNELLY Attorney

 
 Case: 1:14-cv-14176 As of: 01/14/2020 02:12 PM EST 1 of 105
United States District Court District of Massachusetts (Boston) CIVIL DOCKET FOR CASE #: 1:14−cv−14176−ADB

APPEAL

Students for Fair Admissions, Inc. v. President and Fellows of Harvard College et al Assigned to: Judge Allison D. Burroughs Case in other court: USCA − First Circuit, 15−01823
USCA − First Circuit, 19−02005 Cause: 28:1331 Federal Question: Other Civil Rights
Plaintiff

Date Filed: 11/17/2014 Date Terminated: 09/30/2019 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Students for Fair Admissions, Inc.

represented by Adam K Mortara Barlit Beck LLP 54 West Hubbard Street, Suite 300 Chicago, IL 60654 312−494−4400 Fax: 312−494−4440 Email: adam.mortara@bartlit−beck.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

J Scott McBride Bartlit Beck LLP 54 W Hubbard Street Third Floor Chicago, IL 60654 312−494−4400 Email: scott.mcbride@bartlit−beck.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

John Michael Connolly Consovoy McCarthy Park PLLC 3033 Wilson Boulevard Suite 700 Arlington, VA 22201 (703) 243−9423 Email: mike@consovoymccarthy.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

John M Hughes Bartlit Beck LLP 1801 Wewatta Street Suite 1200 Denver, CO 80202 303−592−3100 Fax: 303−592−3140 Email: john.hughes@bartlit−beck.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Katherine L.I. Hacker Bartlit Beck LLP 1801 Wewatta Street Suite 1200 Denver, CO 80202

Case: 1:14-cv-14176 As of: 01/14/2020 02:12 PM EST 2 of 105
(303) 592−3100 Email: kat.hacker@bartlit−beck.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Krista J. Perry Bartlit Beck LLP 54 West Hubbard Street, Suite 300 Chicago, IL 60654 312.494.4400 Fax: 312.494.4440 Email: krista.perry@bartlit−beck.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Meg E. Fasulo Bartlit Beck LLP 1801 Wewatta Street, Suite 1200 Denver, CO 80202 303−592−3100 Fax: 303−592−3140 Email: meg.fasulo@bartlit−beck.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Michael H. Park Consovoy McCarthy Park PLLC 3 Columbus Circle, 15th Floor New York, NY 10024 (646) 456−4432 TERMINATED: 05/16/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Paul M Sanford Burns & Levinson LLP One Citizens Plaza Suite 1100 Providence, RI 02903 401−831−8330 Fax: 401−831−8359 Email: psanford@burnslev.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas R. McCarthy Consovoy McCarthy PLLC 3033 Wilson Boulevard Suite 700 Arlington, VA 22201 703−243−9423 Email: tom@consovoymccarthy.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
William S. Consovoy Consovoy McCarthy PLLC 1600 Wilson Boulevard Suite 700 Arlington, VA 22209

Case: 1:14-cv-14176 As of: 01/14/2020 02:12 PM EST 3 of 105
703−243−4923 Email: will@consovoymccarthy.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Benjamin C. Caldwell Burns & Levinson LLP One Citizens Plaza Suite 1100 Providence, RI 02903 401−831−8330 Email: bcaldwell@burnslev.com TERMINATED: 04/10/2018 ATTORNEY TO BE NOTICED
Patrick Strawbridge Consovoy McCarthy PLLC 8th Floor, South, PMB #706 Ten Post Office Square Boston, MA 002109 617−227−0548 Email: patrick@consovoymccarthy.com ATTORNEY TO BE NOTICED

V.
Defendant
President and Fellows of Harvard College

represented by Brittany Amadi Wilmer Cutler Pickering Hale and Dorr LLP 1875 Pennsylvania Ave. NW Washington, DC 20006 202−663−6022 Fax: 202−663−6363 Email: brittany.amadi@wilmerhale.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Daniel Winik Wilmer Cutler Pickering Hale and Dorr LLP 1875 Pennsylvania Avenue NW Washington, DC 20006 202−663−6922 Fax: 202−663−6363 Email: daniel.winik@wilmerhale.com TERMINATED: 07/02/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Danielle Conley Wilmer Cutler Pickering Hale and Dorr LLP 1875 Pennsylvania Ave. NW Washington, DC 20006 202−663−6006 Fax: 202−663−6363 Email: danielle.conley@wilmerhale.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 1:14-cv-14176 As of: 01/14/2020 02:12 PM EST 4 of 105
Debo P. Adegbile Wilmer Cutler Pickering Hale and Dorr LLP 7 World Trade Center 250 Greenwich St. New York, NY 10007 212−295−6717 Email: Debo.Adegbile@wilmerhale.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Paul R.Q. Wolfson Wilmer, Cutler, Pickering, Hale and Dorr LLP 1875 Pennsylvania Avenue, NW Washington, DC 20006 202−663−6000 Fax: 202−663−6363 Email: paul.wolfson@wilmerhale.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Seth P. Waxman Wilmer Cutler Pickering Hale and Dorr LLP 1875 Pennsylvania Avenue, NW Washington, DC 20006 202−663−6800 Email: seth.waxman@wilmerhale.com (Inactive) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
William F. Lee Wilmer Cutler Pickering Hale and Dorr LLP (Bos) 60 State Street Boston, MA 02109 617−526−6556 Fax: 617−526−5000 Email: william.lee@wilmerhale.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew S. Dulberg Wilmer Cutler Pickering Hale and Dorr LLP (Bos) 60 State Street Boston, MA 02109 617−526−6352 Fax: 617−526−5000 Email: andrew.dulberg@wilmerhale.com ATTORNEY TO BE NOTICED
Ara B. Gershengorn Harvard Office of the General Counsel Smith Campus Center, Suite 980 1350 Massachusetts Avenue Cambridge, MA 02138 617−495−8210 Fax: 617−495−5079

Case: 1:14-cv-14176 As of: 01/14/2020 02:12 PM EST 5 of 105

Email: ara_gershengorn@harvard.edu ATTORNEY TO BE NOTICED

Elizabeth C. Mooney Wilmer Cutler Pickering Hale and Dorr LLP (Bos) 60 State Street Boston, MA 02109 617−526−6000 Email: elizabeth.mooney@wilmerhale.com ATTORNEY TO BE NOTICED

Felicia H. Ellsworth Wilmer Cutler Pickering Hale and Dorr LLP (Bos) 60 State Street Boston, MA 02109 617−526−6000 Fax: 617−526−5000 Email: felicia.ellsworth@wilmerhale.com ATTORNEY TO BE NOTICED

Joseph J. Mueller Wilmer Hale LLP 60 State Street Boston, MA 02109 617−526−6396 Fax: 617−526−5000 Email: joseph.mueller@wilmerhale.com ATTORNEY TO BE NOTICED

Sarah R. Frazier Wilmer Cutler Pickering Hale and Dorr LLP (Bos) 60 State Street Boston, MA 02109 617−526−6022 Email: sarah.frazier@wilmerhale.com ATTORNEY TO BE NOTICED

Defendant
The Honorable and Reverend The Board of Overseers TERMINATED: 01/12/2015

Intervenor Defendant Sarah Cole

represented by Brenda Shum Lawyers Committee For Civil Rights Under Law 1500 K Street NW, Suite 9 Washington, DC 20005 202−662−8332 Email: bshum@lawyerscommittee.org TERMINATED: 05/17/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Christopher Lapinig Asian Americans Advancing Justice 1145 Wilshire Boulevard Los Angeles, CA 90017 213−977−7500 Email: clapinig@advancingjustice−la.org

Case: 1:14-cv-14176 As of: 01/14/2020 02:12 PM EST 6 of 105
LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Emma Katherine Dinan Arnold & Porter Kaye Scholer LLP 601 Massachusettes Avenue, NW Washington, DC 20005 202−942−5485 Email: Emma.Dinan@arnoldporter.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Genevieve Bonadies Torres Lawyers Committee for Civil Rights Under Law 1401 New York Ave., NW, Suite 400 Washington, DC 20005 202−662−8326 Email: gbonadies@lawyerscommittee.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Laboni Hoq Asian Americans Advancing Justice 1145 Wilshire Boulevard Los Angeles, CA 90017 213−241−0257 Email: labonihoq@hotmail.com TERMINATED: 12/09/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lawrence Culleen Arnold & Porter LLP 555 Twelfth Street, NW Washington, DC 20004 202−942−5477 Email: gina.dean@aporter.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Nancy L. Perkins Arnold & Porter LLP 555 Twelfth Street, NW Washington, DC 20004 202−942−5065 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Nicole K. Ochi Asian Americans Advancing Justice Impacts Litigation Unit 1145 Wilshire Boulevards Los Angeles, CA 90017 213−241−0211 Email: nochi@advancingjustice−la.org TERMINATED: 06/05/2019 LEAD ATTORNEY PRO HAC VICE

Case: 1:14-cv-14176 As of: 01/14/2020 02:12 PM EST 7 of 105

ATTORNEY TO BE NOTICED

Rahsaan D. Hall Lawyers' Committee for Civil Rights Under Law 294 Washington Street Suite 443 Boston, MA 02108 617−988−0608 Fax: 617−482−4392 Email: rhall@aclum.org LEAD ATTORNEY

Steven L. Mayer Arnold & Porter LLP Three Embarcadero Center 10th Floor San Francisco, CA 94111−4024 415−471−3163 Email: steven.mayer@aporter.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Matthew M. Cregor Lawyers' Committee for Civil Rights Under Law 294 Washington Street Suite 443 Boston, MA 02108 617−988−0609 Email: mcregor@lawyerscom.org ATTORNEY TO BE NOTICED

Oren M. Sellstrom Lawyers' Committee for Civil Rights and Economic Justic Fifth Floor 61 Batterymarch Street Boston, MA 02110 617−988−0608 Email: osellstrom@lawyerscom.org ATTORNEY TO BE NOTICED

Priya A. Lane Lawyers' Committee for Civil Rights Under Law 294 Washington Street, Suite 443 Boston, MA 02108 617−988−0610 Email: plane@lawyerscom.org ATTORNEY TO BE NOTICED

Intervenor Defendant Fadhal Moore

represented by Brenda Shum (See above for address) TERMINATED: 05/17/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Christopher Lapinig (See above for address) LEAD ATTORNEY

Case: 1:14-cv-14176 As of: 01/14/2020 02:12 PM EST 8 of 105
PRO HAC VICE ATTORNEY TO BE NOTICED
Emma Katherine Dinan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Genevieve Bonadies Torres (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jon M. Greenbaum Lawyers' Committee for Civil Rights Under Law 1401 New York Avenue, NW Suite 400 Washington, DC 20005 (202) 662−8315 Email: jgreenbaum@lawyerscommittee.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Laboni Hoq (See above for address) TERMINATED: 12/09/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lawrence Culleen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Nancy L. Perkins (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rahsaan D. Hall (See above for address) LEAD ATTORNEY
Steven L. Mayer (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew M. Cregor (See above for address) ATTORNEY TO BE NOTICED
Oren M. Sellstrom (See above for address) ATTORNEY TO BE NOTICED
Priya A. Lane

Case: 1:14-cv-14176 As of: 01/14/2020 02:12 PM EST 9 of 105

(See above for address) ATTORNEY TO BE NOTICED

Intervenor Defendant Arjini Kumari Nawal

represented by Brenda Shum (See above for address) TERMINATED: 05/17/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Christopher Lapinig (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Emma Katherine Dinan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Genevieve Bonadies Torres (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jon M. Greenbaum (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Laboni Hoq (See above for address) TERMINATED: 12/09/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Lawrence Culleen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Nancy L. Perkins (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Rahsaan D. Hall (See above for address) LEAD ATTORNEY

Steven L. Mayer (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 1:14-cv-14176 As of: 01/14/2020 02:12 PM EST 10 of 105

Matthew M. Cregor (See above for address) ATTORNEY TO BE NOTICED

Oren M. Sellstrom (See above for address) ATTORNEY TO BE NOTICED

Priya A. Lane (See above for address) ATTORNEY TO BE NOTICED

Intervenor Defendant Itzel Vasquez−Rodriguez

represented by Brenda Shum (See above for address) TERMINATED: 05/17/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Christopher Lapinig (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Emma Katherine Dinan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Genevieve Bonadies Torres (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jon M. Greenbaum (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Laboni Hoq (See above for address) TERMINATED: 12/09/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Lawrence Culleen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Nancy L. Perkins (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Rahsaan D. Hall

Case: 1:14-cv-14176 As of: 01/14/2020 02:12 PM EST 11 of 105

(See above for address) LEAD ATTORNEY

Steven L. Mayer (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Matthew M. Cregor (See above for address) ATTORNEY TO BE NOTICED

Oren M. Sellstrom (See above for address) ATTORNEY TO BE NOTICED

Priya A. Lane (See above for address) ATTORNEY TO BE NOTICED

Intervenor Defendant Keyanna Wigglesworth

represented by Brenda Shum (See above for address) TERMINATED: 05/17/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Christopher Lapinig (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Emma Katherine Dinan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Genevieve Bonadies Torres (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jon M. Greenbaum (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Laboni Hoq (See above for address) TERMINATED: 12/09/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Lawrence Culleen (See above for address) LEAD ATTORNEY PRO HAC VICE

Case: 1:14-cv-14176 As of: 01/14/2020 02:12 PM EST 12 of 105

ATTORNEY TO BE NOTICED

Nancy L. Perkins (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Rahsaan D. Hall (See above for address) LEAD ATTORNEY

Steven L. Mayer (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Matthew M. Cregor (See above for address) ATTORNEY TO BE NOTICED

Oren M. Sellstrom (See above for address) ATTORNEY TO BE NOTICED

Priya A. Lane (See above for address) ATTORNEY TO BE NOTICED

Intervenor Defendant M. B.

represented by Brenda Shum (See above for address) TERMINATED: 05/17/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Christopher Lapinig (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Emma Katherine Dinan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Genevieve Bonadies Torres (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jon M. Greenbaum (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Laboni Hoq (See above for address)

Case: 1:14-cv-14176 As of: 01/14/2020 02:12 PM EST 13 of 105

TERMINATED: 12/09/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Lawrence Culleen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Nancy L. Perkins (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Nicole K. Ochi (See above for address) TERMINATED: 06/05/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Rahsaan D. Hall (See above for address) LEAD ATTORNEY

Steven L. Mayer (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Matthew M. Cregor (See above for address) ATTORNEY TO BE NOTICED

Oren M. Sellstrom (See above for address) ATTORNEY TO BE NOTICED

Priya A. Lane (See above for address) ATTORNEY TO BE NOTICED

Intervenor Defendant K. C.

represented by Brenda Shum (See above for address) TERMINATED: 05/17/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Christopher Lapinig (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Emma Katherine Dinan (See above for address) LEAD ATTORNEY PRO HAC VICE

Case: 1:14-cv-14176 As of: 01/14/2020 02:12 PM EST 14 of 105

ATTORNEY TO BE NOTICED

Genevieve Bonadies Torres (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jon M. Greenbaum (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Laboni Hoq (See above for address) TERMINATED: 12/09/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Lawrence Culleen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Nancy L. Perkins (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Nicole K. Ochi (See above for address) TERMINATED: 06/05/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Rahsaan D. Hall (See above for address) LEAD ATTORNEY

Steven L. Mayer (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Matthew M. Cregor (See above for address) ATTORNEY TO BE NOTICED

Oren M. Sellstrom (See above for address) ATTORNEY TO BE NOTICED

Priya A. Lane (See above for address) ATTORNEY TO BE NOTICED

Intervenor Defendant Y. D.

represented by

Case: 1:14-cv-14176 As of: 01/14/2020 02:12 PM EST 15 of 105
Brenda Shum (See above for address) TERMINATED: 05/17/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Christopher Lapinig (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Emma Katherine Dinan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Genevieve Bonadies Torres (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jon M. Greenbaum (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Laboni Hoq (See above for address) TERMINATED: 12/09/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lawrence Culleen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Nancy L. Perkins (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Nicole K. Ochi (See above for address) TERMINATED: 06/05/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rahsaan D. Hall (See above for address) LEAD ATTORNEY
Steven L. Mayer (See above for address) LEAD ATTORNEY PRO HAC VICE

Case: 1:14-cv-14176 As of: 01/14/2020 02:12 PM EST 16 of 105

ATTORNEY TO BE NOTICED

Matthew M. Cregor (See above for address) ATTORNEY TO BE NOTICED

Oren M. Sellstrom (See above for address) ATTORNEY TO BE NOTICED

Priya A. Lane (See above for address) ATTORNEY TO BE NOTICED

Intervenor Defendant G. E.

represented by Brenda Shum (See above for address) TERMINATED: 05/17/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Christopher Lapinig (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Emma Katherine Dinan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Genevieve Bonadies Torres (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jon M. Greenbaum (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Laboni Hoq (See above for address) TERMINATED: 12/09/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Lawrence Culleen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Nancy L. Perkins (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 1:14-cv-14176 As of: 01/14/2020 02:12 PM EST 17 of 105

Intervenor Defendant A. G.

Nicole K. Ochi (See above for address) TERMINATED: 06/05/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rahsaan D. Hall (See above for address) LEAD ATTORNEY
Steven L. Mayer (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew M. Cregor (See above for address) ATTORNEY TO BE NOTICED
Oren M. Sellstrom (See above for address) ATTORNEY TO BE NOTICED
Priya A. Lane (See above for address) ATTORNEY TO BE NOTICED
represented by Brenda Shum (See above for address) TERMINATED: 05/17/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Christopher Lapinig (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Emma Katherine Dinan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Genevieve Bonadies Torres (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jon M. Greenbaum (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Laboni Hoq (See above for address)

Case: 1:14-cv-14176 As of: 01/14/2020 02:12 PM EST 18 of 105

TERMINATED: 12/09/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Lawrence Culleen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Nancy L. Perkins (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Nicole K. Ochi (See above for address) TERMINATED: 06/05/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Rahsaan D. Hall (See above for address) LEAD ATTORNEY

Steven L. Mayer (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Matthew M. Cregor (See above for address) ATTORNEY TO BE NOTICED

Oren M. Sellstrom (See above for address) ATTORNEY TO BE NOTICED

Priya A. Lane (See above for address) ATTORNEY TO BE NOTICED

Intervenor Defendant I. G.

represented by Brenda Shum (See above for address) TERMINATED: 05/17/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Christopher Lapinig (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Emma Katherine Dinan (See above for address) LEAD ATTORNEY PRO HAC VICE

Case: 1:14-cv-14176 As of: 01/14/2020 02:12 PM EST 19 of 105

ATTORNEY TO BE NOTICED

Genevieve Bonadies Torres (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jon M. Greenbaum (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Laboni Hoq (See above for address) TERMINATED: 12/09/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Lawrence Culleen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Nancy L. Perkins (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Nicole K. Ochi (See above for address) TERMINATED: 06/05/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Rahsaan D. Hall (See above for address) LEAD ATTORNEY

Steven L. Mayer (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Matthew M. Cregor (See above for address) ATTORNEY TO BE NOTICED

Oren M. Sellstrom (See above for address) ATTORNEY TO BE NOTICED

Priya A. Lane (See above for address) ATTORNEY TO BE NOTICED

Intervenor Defendant R. H.

represented by

Case: 1:14-cv-14176 As of: 01/14/2020 02:12 PM EST 20 of 105
Brenda Shum (See above for address) TERMINATED: 05/17/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Christopher Lapinig (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Emma Katherine Dinan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Genevieve Bonadies Torres (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jon M. Greenbaum (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Laboni Hoq (See above for address) TERMINATED: 12/09/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lawrence Culleen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Nancy L. Perkins (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Nicole K. Ochi (See above for address) TERMINATED: 06/05/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rahsaan D. Hall (See above for address) LEAD ATTORNEY
Steven L. Mayer (See above for address) LEAD ATTORNEY PRO HAC VICE

Case: 1:14-cv-14176 As of: 01/14/2020 02:12 PM EST 21 of 105

ATTORNEY TO BE NOTICED

Matthew M. Cregor (See above for address) ATTORNEY TO BE NOTICED

Oren M. Sellstrom (See above for address) ATTORNEY TO BE NOTICED

Priya A. Lane (See above for address) ATTORNEY TO BE NOTICED

Intervenor Defendant J. L.

represented by Brenda Shum (See above for address) TERMINATED: 05/17/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Christopher Lapinig (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Emma Katherine Dinan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Genevieve Bonadies Torres (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jon M. Greenbaum (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Laboni Hoq (See above for address) TERMINATED: 12/09/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Lawrence Culleen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Nancy L. Perkins (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 1:14-cv-14176 As of: 01/14/2020 02:12 PM EST 22 of 105

Intervenor Defendant R. S.

Nicole K. Ochi (See above for address) TERMINATED: 06/05/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rahsaan D. Hall (See above for address) LEAD ATTORNEY
Steven L. Mayer (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew M. Cregor (See above for address) ATTORNEY TO BE NOTICED
Oren M. Sellstrom (See above for address) ATTORNEY TO BE NOTICED
Priya A. Lane (See above for address) ATTORNEY TO BE NOTICED
represented by Brenda Shum (See above for address) TERMINATED: 05/17/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Christopher Lapinig (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Emma Katherine Dinan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Genevieve Bonadies Torres (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jon M. Greenbaum (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Laboni Hoq (See above for address)

Case: 1:14-cv-14176 As of: 01/14/2020 02:12 PM EST 23 of 105

TERMINATED: 12/09/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Lawrence Culleen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Nancy L. Perkins (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Rahsaan D. Hall (See above for address) LEAD ATTORNEY

Steven L. Mayer (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Matthew M. Cregor (See above for address) ATTORNEY TO BE NOTICED

Oren M. Sellstrom (See above for address) ATTORNEY TO BE NOTICED

Priya A. Lane (See above for address) ATTORNEY TO BE NOTICED

Witness Boston Public Schools

represented by Jennifer N. Seich City of Boston 2300 Washington Street Roxbury, MA 02119 617−635−9320 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
New England First Amendment Coalition; Reporters Committee for Freedom of the Press; Massachusetts Newspaper Publishers Association; GateHouse Media, LLC

represented by Sigmund David Schutz Preti Flaherty LLP One City Center PO Box 9546 Portland, ME 04112 207−791−3000 Email: sschutz@preti.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Eric G. Penley Preti Flaherty Beliveau & Pachios LLP 60 State Street, Suite 1100 Boston, MA 02109 (617) 226−3854

Case: 1:14-cv-14176 As of: 01/14/2020 02:12 PM EST 24 of 105

Email: epenley@preti.com ATTORNEY TO BE NOTICED

Amicus
National Association of Scholars National Association of Scholars 12 East 46th Street, 6th floor New York, NY 10017−2418 917.551.6770

represented by Dwight G. Duncan University of Massachusetts School of Law 333 Faunce Corner Rd. North Dartmouth, MA 02747−1252 508−985−1124 Fax: 508−985−1115 Email: dduncan@umassd.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus American Council on Education

represented by Natashia Tidwell Hogan Lovells US LLP 100 High Street 20th Flr. Boston, MA 02110 617) 371−1000 Email: natashia.tidwell@hoganlovells.com ATTORNEY TO BE NOTICED

Amicus Brown University

represented by Matthew S. Hellman Jenner & Block LLP 1099 New York Avenue, N.W. Washington, DC 20001 (202) 639−6861 Email: MHellman@jenner.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Seth B. Orkand Miner Orkand Siddall LLP 470 Atlantic Avenue, 4th Floor Boston, MA 02210 617−273−8287 Fax: 617−273−8004 Email: sorkand@mosllp.com ATTORNEY TO BE NOTICED

Amicus Case Western Reserve University

represented by Seth B. Orkand (See above for address) ATTORNEY TO BE NOTICED

Amicus Columbia University

represented by Seth B. Orkand (See above for address) ATTORNEY TO BE NOTICED

Amicus Cornell University

represented by Seth B. Orkand (See above for address) ATTORNEY TO BE NOTICED

Amicus Dartmouth College

represented by

Case: 1:14-cv-14176 As of: 01/14/2020 02:12 PM EST 25 of 105

Seth B. Orkand (See above for address) ATTORNEY TO BE NOTICED

Amicus Duke University

represented by Seth B. Orkand (See above for address) ATTORNEY TO BE NOTICED

Amicus Emory University

represented by Seth B. Orkand (See above for address) ATTORNEY TO BE NOTICED

Amicus George Washington University

represented by Seth B. Orkand (See above for address) ATTORNEY TO BE NOTICED

Amicus John Hopkins University

represented by Seth B. Orkand (See above for address) ATTORNEY TO BE NOTICED

Amicus Massachusetts Institute of Technology

represented by Seth B. Orkand (See above for address) ATTORNEY TO BE NOTICED

Amicus Princeton University

represented by Seth B. Orkand (See above for address) ATTORNEY TO BE NOTICED

Amicus Stanford University

represented by Seth B. Orkand (See above for address) ATTORNEY TO BE NOTICED

Amicus University of Pennsylvania

represented by Seth B. Orkand (See above for address) ATTORNEY TO BE NOTICED

Amicus Vanderbilt University

represented by Seth B. Orkand (See above for address) ATTORNEY TO BE NOTICED

Amicus Washington University in St. Louis

represented by Seth B. Orkand (See above for address) ATTORNEY TO BE NOTICED

Amicus Yale University

represented by Seth B. Orkand (See above for address) ATTORNEY TO BE NOTICED

Case: 1:14-cv-14176 As of: 01/14/2020 02:12 PM EST 26 of 105

Amicus Walter Dellinger Amicus Amici Curiae Economists Michael Keane et al., in Support of Students for Fair Admissions Amici Curiae Economists Michael Keane et al., in Support of Students for Fair Admissions
Amicus Harvard−Radcliffe Black Students Association

represented by Adam R.F. Gustafson Boyden Gray & Associates PLLC 801 17th Street NW, Suite 350 Washington, DC 20006 202−955−0620 Fax: 202−955−0621 Email: gustafson@boydengrayassociates.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Andrew R. Varcoe Boyden Gray & Associates 801 17th Street NW Suite 350 Washington, DC 20006 (202) 706−5488 Email: avarcoe@boydengrayassociates.com TERMINATED: 08/19/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Clayland Boyden Gray Boyden Gray & Associates PLLC 801 17th Street NW, Suite 350 Washington, DC 20006 202−955−0620 Fax: 202−955−0621 Email: bethany@boydengrayassociates.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
James R. Conde Boyden Gray & Associates PLLC 801 17th Street NW, Suite 350 Washington, DC 20006 202−955−0622 Fax: 202−955−0621 Email: conde@boydengrayassociates.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Randall B. Clark Randall B. Clark, Attorney at Law 80A Rust Hollis Road Hollis, NH 03049 603−801−3039 Email: rbc@randallbclark.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Cara McClellan NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC.

Case: 1:14-cv-14176 As of: 01/14/2020 02:12 PM EST 27 of 105
40 Rector St., 5th Floor New York, NY 10006 212−965−2200 Fax: 212−226−7592 Email: cmcclellan@naacpldf.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Earl A. Kirkland , III NAACP Legal Defense and Educational Fund, INC. 40 Rector Street, 5th Floor New York, NY 10006 212−965−2200 Fax: 212−226−7592 Email: ekirkland@naacpldf.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Janai S. Nelson NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. 40 Rector St., 5th Floor New YorK, NY 10006 212−965−2200 Fax: 212−226−7592 Email: jnelson@naacpldf.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jennifer A. Holmes NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. 700 14th St, NW 8th Floor Washington, DC 20005 202−683−1300 Fax: 202−682−1312 Email: jholmes@naacpldf.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jin Hee Lee NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. 40 Rector St., 5th Floor New York, NY 10006 212−965−2200 Fax: 212−226−7592 Email: jlee@naacpldf.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Michaele N. Turnage Young NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. 700 14th St NW, Suite 600 Washington, DC 20005 212−683−1300 Fax: 202−682−1312 Email: mturnageyoung@naacpldf.org

Case: 1:14-cv-14176 As of: 01/14/2020 02:12 PM EST 28 of 105

LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Rachel M. Kleinman NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. 40 Rector St., 5th Floor New York, NY 10006 212−965−2200 Fax: 212−226−7592 Email: rkleinman@naacpldf.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Samuel Spital NAACP Legal Defense and Educational Fund, Inc. 40 Rector Street, 5th Floor New York, NY 10006 212−965−2200 Fax: 212−226−7592 Email: sspital@naacpldf.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Sherrilyn A. Ifill NAACP Legal Defense and Educational Fund, Inc. 40 Rector Street, 5th Floor New York, NY 10006 212−965−2200 Fax: 212−226−7592 Email: sifill@naacpldf.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Kathryn Rebecca Cook Sugarman, Rogers, Barshak & Cohen, P.C. 101 Merrimac Street 9th Floor Boston, MA 02114 617−6227−3030 Email: cook@srbc.com ATTORNEY TO BE NOTICED

Kenneth N. Thayer Sugarman, Rogers, Barshak & Cohen, P.C. 101 Merrimac Street 9th Floor Boston, MA 02114 617−227−3030 Email: thayer@srbc.com ATTORNEY TO BE NOTICED

Amicus Kuumba Singers of Harvard College

represented by Cara McClellan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 1:14-cv-14176 As of: 01/14/2020 02:12 PM EST 29 of 105

Amicus Fuerza Latina of Harvard

Earl A. Kirkland , III (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Janai S. Nelson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jennifer A. Holmes (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jin Hee Lee (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Michaele N. Turnage Young (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rachel M. Kleinman (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Samuel Spital (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sherrilyn A. Ifill (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kathryn Rebecca Cook (See above for address) ATTORNEY TO BE NOTICED
Kenneth N. Thayer (See above for address) ATTORNEY TO BE NOTICED
represented by Cara McClellan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 1:14-cv-14176 As of: 01/14/2020 02:12 PM EST 30 of 105

Earl A. Kirkland , III (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Janai S. Nelson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jennifer A. Holmes (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jin Hee Lee (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Michaele N. Turnage Young (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Rachel M. Kleinman (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Samuel Spital (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Sherrilyn A. Ifill (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Kathryn Rebecca Cook (See above for address) ATTORNEY TO BE NOTICED

Kenneth N. Thayer (See above for address) ATTORNEY TO BE NOTICED

Amicus Native Americans At Harvard College

represented by Cara McClellan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Earl A. Kirkland , III

Case: 1:14-cv-14176 As of: 01/14/2020 02:12 PM EST 31 of 105

(See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Janai S. Nelson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jennifer A. Holmes (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jin Hee Lee (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Michaele N. Turnage Young (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Rachel M. Kleinman (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Samuel Spital (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Sherrilyn A. Ifill (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Kathryn Rebecca Cook (See above for address) ATTORNEY TO BE NOTICED

Kenneth N. Thayer (See above for address) ATTORNEY TO BE NOTICED

Amicus
Harvard−Radcliffe Asian American Association

represented by Cara McClellan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Earl A. Kirkland , III (See above for address)

Case: 1:14-cv-14176 As of: 01/14/2020 02:12 PM EST 32 of 105

LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Janai S. Nelson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jennifer A. Holmes (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jin Hee Lee (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Michaele N. Turnage Young (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Rachel M. Kleinman (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Samuel Spital (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Sherrilyn A. Ifill (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Kathryn Rebecca Cook (See above for address) ATTORNEY TO BE NOTICED

Kenneth N. Thayer (See above for address) ATTORNEY TO BE NOTICED

Amicus
Harvard−Radcliffe Asian American Women's Association

represented by Cara McClellan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Earl A. Kirkland , III (See above for address) LEAD ATTORNEY

Case: 1:14-cv-14176 As of: 01/14/2020 02:12 PM EST 33 of 105

PRO HAC VICE ATTORNEY TO BE NOTICED

Janai S. Nelson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jennifer A. Holmes (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jin Hee Lee (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Michaele N. Turnage Young (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Rachel M. Kleinman (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Samuel Spital (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Sherrilyn A. Ifill (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Kathryn Rebecca Cook (See above for address) ATTORNEY TO BE NOTICED

Kenneth N. Thayer (See above for address) ATTORNEY TO BE NOTICED

Amicus Harvard Asian American Brotherhood

represented by Cara McClellan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Earl A. Kirkland , III (See above for address) LEAD ATTORNEY PRO HAC VICE

Case: 1:14-cv-14176 As of: 01/14/2020 02:12 PM EST 34 of 105

ATTORNEY TO BE NOTICED

Janai S. Nelson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jennifer A. Holmes (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jin Hee Lee (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Michaele N. Turnage Young (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Rachel M. Kleinman (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Samuel Spital (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Sherrilyn A. Ifill (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Kathryn Rebecca Cook (See above for address) ATTORNEY TO BE NOTICED

Kenneth N. Thayer (See above for address) ATTORNEY TO BE NOTICED

Amicus Harvard Vietnamese Association

represented by Cara McClellan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Earl A. Kirkland , III (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 1:14-cv-14176 As of: 01/14/2020 02:12 PM EST 35 of 105

Amicus
Harvard−Radcliffe Chinese Students Association

Janai S. Nelson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jennifer A. Holmes (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jin Hee Lee (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Michaele N. Turnage Young (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rachel M. Kleinman (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Samuel Spital (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sherrilyn A. Ifill (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kathryn Rebecca Cook (See above for address) ATTORNEY TO BE NOTICED
Kenneth N. Thayer (See above for address) ATTORNEY TO BE NOTICED
represented by Cara McClellan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Earl A. Kirkland , III (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 1:14-cv-14176 As of: 01/14/2020 02:12 PM EST 36 of 105

Janai S. Nelson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jennifer A. Holmes (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jin Hee Lee (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Michaele N. Turnage Young (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Rachel M. Kleinman (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Samuel Spital (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Sherrilyn A. Ifill (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Kathryn Rebecca Cook (See above for address) ATTORNEY TO BE NOTICED

Kenneth N. Thayer (See above for address) ATTORNEY TO BE NOTICED

Amicus Harvard Korean Association

represented by Cara McClellan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Earl A. Kirkland , III (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Janai S. Nelson

Case: 1:14-cv-14176 As of: 01/14/2020 02:12 PM EST 37 of 105

(See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jennifer A. Holmes (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jin Hee Lee (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Michaele N. Turnage Young (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Rachel M. Kleinman (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Samuel Spital (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Sherrilyn A. Ifill (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Kathryn Rebecca Cook (See above for address) ATTORNEY TO BE NOTICED

Kenneth N. Thayer (See above for address) ATTORNEY TO BE NOTICED

Amicus Harvard Japan Society

represented by Cara McClellan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Earl A. Kirkland , III (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Janai S. Nelson (See above for address)

Case: 1:14-cv-14176 As of: 01/14/2020 02:12 PM EST 38 of 105

LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jennifer A. Holmes (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jin Hee Lee (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Michaele N. Turnage Young (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Rachel M. Kleinman (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Samuel Spital (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Sherrilyn A. Ifill (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Kathryn Rebecca Cook (See above for address) ATTORNEY TO BE NOTICED

Kenneth N. Thayer (See above for address) ATTORNEY TO BE NOTICED

Amicus Harvard South Asian Association

represented by Cara McClellan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Earl A. Kirkland , III (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Janai S. Nelson (See above for address) LEAD ATTORNEY

Case: 1:14-cv-14176 As of: 01/14/2020 02:12 PM EST 39 of 105

PRO HAC VICE ATTORNEY TO BE NOTICED

Jennifer A. Holmes (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jin Hee Lee (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Michaele N. Turnage Young (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Rachel M. Kleinman (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Samuel Spital (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Sherrilyn A. Ifill (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Kathryn Rebecca Cook (See above for address) ATTORNEY TO BE NOTICED

Kenneth N. Thayer (See above for address) ATTORNEY TO BE NOTICED

Amicus Harvard Islamic Society

represented by Cara McClellan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Earl A. Kirkland , III (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Janai S. Nelson (See above for address) LEAD ATTORNEY PRO HAC VICE

Case: 1:14-cv-14176 As of: 01/14/2020 02:12 PM EST 40 of 105

ATTORNEY TO BE NOTICED

Jennifer A. Holmes (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jin Hee Lee (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Michaele N. Turnage Young (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Rachel M. Kleinman (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Samuel Spital (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Sherrilyn A. Ifill (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Kathryn Rebecca Cook (See above for address) ATTORNEY TO BE NOTICED

Kenneth N. Thayer (See above for address) ATTORNEY TO BE NOTICED

Amicus
Task Force on Asian and Pacific American Studies at Harvard College

represented by Cara McClellan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Earl A. Kirkland , III (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Janai S. Nelson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 1:14-cv-14176 As of: 01/14/2020 02:12 PM EST 41 of 105

Amicus
Harvard Phillips Brooks House Association

Jennifer A. Holmes (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jin Hee Lee (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Michaele N. Turnage Young (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rachel M. Kleinman (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Samuel Spital (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sherrilyn A. Ifill (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kathryn Rebecca Cook (See above for address) ATTORNEY TO BE NOTICED
Kenneth N. Thayer (See above for address) ATTORNEY TO BE NOTICED
represented by Cara McClellan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Earl A. Kirkland , III (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Janai S. Nelson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 1:14-cv-14176 As of: 01/14/2020 02:12 PM EST 42 of 105

Jennifer A. Holmes (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jin Hee Lee (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Michaele N. Turnage Young (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Rachel M. Kleinman (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Samuel Spital (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Sherrilyn A. Ifill (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Kathryn Rebecca Cook (See above for address) ATTORNEY TO BE NOTICED

Kenneth N. Thayer (See above for address) ATTORNEY TO BE NOTICED

Amicus
Harvard Minority Association of Pre−Medical Students

represented by Cara McClellan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Earl A. Kirkland , III (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Janai S. Nelson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jennifer A. Holmes

Case: 1:14-cv-14176 As of: 01/14/2020 02:12 PM EST 43 of 105

(See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jin Hee Lee (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Michaele N. Turnage Young (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Rachel M. Kleinman (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Samuel Spital (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Sherrilyn A. Ifill (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Kathryn Rebecca Cook (See above for address) ATTORNEY TO BE NOTICED

Kenneth N. Thayer (See above for address) ATTORNEY TO BE NOTICED

Amicus Coalition for a Diverse Harvard

represented by Cara McClellan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Earl A. Kirkland , III (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Janai S. Nelson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jennifer A. Holmes (See above for address)

Case: 1:14-cv-14176 As of: 01/14/2020 02:12 PM EST 44 of 105

LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jin Hee Lee (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Michaele N. Turnage Young (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Rachel M. Kleinman (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Samuel Spital (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Sherrilyn A. Ifill (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Kathryn Rebecca Cook (See above for address) ATTORNEY TO BE NOTICED

Kenneth N. Thayer (See above for address) ATTORNEY TO BE NOTICED

Amicus First Generation Harvard Alumni

represented by Cara McClellan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Earl A. Kirkland , III (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Janai S. Nelson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jennifer A. Holmes (See above for address) LEAD ATTORNEY

Case: 1:14-cv-14176 As of: 01/14/2020 02:12 PM EST 45 of 105

PRO HAC VICE ATTORNEY TO BE NOTICED

Jin Hee Lee (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Michaele N. Turnage Young (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Rachel M. Kleinman (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Samuel Spital (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Sherrilyn A. Ifill (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Kathryn Rebecca Cook (See above for address) ATTORNEY TO BE NOTICED

Kenneth N. Thayer (See above for address) ATTORNEY TO BE NOTICED

Amicus
Native American Alumni of Harvard University

represented by Cara McClellan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Earl A. Kirkland , III (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Janai S. Nelson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jennifer A. Holmes (See above for address) LEAD ATTORNEY PRO HAC VICE

Case: 1:14-cv-14176 As of: 01/14/2020 02:12 PM EST 46 of 105

ATTORNEY TO BE NOTICED

Jin Hee Lee (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Michaele N. Turnage Young (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Rachel M. Kleinman (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Samuel Spital (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Sherrilyn A. Ifill (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Kathryn Rebecca Cook (See above for address) ATTORNEY TO BE NOTICED

Kenneth N. Thayer (See above for address) ATTORNEY TO BE NOTICED

Amicus Harvard University Muslim Alumni

represented by Cara McClellan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Earl A. Kirkland , III (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Janai S. Nelson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jennifer A. Holmes (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 1:14-cv-14176 As of: 01/14/2020 02:12 PM EST 47 of 105

Amicus Harvard Latino Alumni Alliance

Jin Hee Lee (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Michaele N. Turnage Young (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rachel M. Kleinman (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Samuel Spital (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sherrilyn A. Ifill (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kathryn Rebecca Cook (See above for address) ATTORNEY TO BE NOTICED
Kenneth N. Thayer (See above for address) ATTORNEY TO BE NOTICED
represented by Cara McClellan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Earl A. Kirkland , III (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Janai S. Nelson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jennifer A. Holmes (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 1:14-cv-14176 As of: 01/14/2020 02:12 PM EST 48 of 105

Jin Hee Lee (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Michaele N. Turnage Young (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Rachel M. Kleinman (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Samuel Spital (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Sherrilyn A. Ifill (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Kathryn Rebecca Cook (See above for address) ATTORNEY TO BE NOTICED

Kenneth N. Thayer (See above for address) ATTORNEY TO BE NOTICED

Amicus Asian American Legal Foundation

represented by Gordon M. Fauth , Jr. Litigation Law Group 1801 Clement Ave, Ste. 101 Alameda, CA 94501 510−238−9610 Fax: 510−473−0603 Email: gmf@classlitigation.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lee Cheng Asian American Legal Foundation c/o Maschoff Brennan 100 Spectrum Center Drive Irvine, CA 92618 (949) 202−1900 Email: lcheng@mabr.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Marc J. Randazza Randazza Legal Group, PLLC 2764 Lake Sahara Drive, Suite 109 Las Vegas, NV 89117

Case: 1:14-cv-14176 As of: 01/14/2020 02:12 PM EST 49 of 105

702−420−2001 Email: mjr@randazza.com ATTORNEY TO BE NOTICED

Amicus
Asian American Coalition for Education

represented by Gordon M. Fauth , Jr. (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Marc J. Randazza (See above for address) ATTORNEY TO BE NOTICED

Amicus Social Scientists and Scholars

represented by Sarah E. Harrington Goldstein & Russell, P.C. 7475 Wisconsin Ave., Suite 850 Bethesda, MD 20814 202−362−0636 Email: sharrington@goldsteinrussell.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Richard J. Rosensweig Goulston & Storrs, PC 400 Atlantic Avenue Boston, MA 02110 617−574−3588 Fax: 617−574−7505 Email: rrosensweig@goulstonstorrs.com ATTORNEY TO BE NOTICED

Amicus
Amici Curiae Professors of Economics Susan Dynarski, et al., in Support of Defendant Amici Curiae Professors of Economics Susan Dynarski, et al., in Support of Defendant

represented by Derek Tam Ho Kellogg, Huber, Hansen, Todd Evans & Figel, PLLC Sumner Square 1615 M Street, N.W. Suite 400 Washington, DC 20036 202−326−7900 Fax: 202−326−7999 Email: dho@khhte.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
Amici Curiae the Asian American Legal Defense and Education Fund, et al.

represented by Kenneth Kimerling Asian American Legal Defense and Education Fund 99 Hudson Street New York, NY 10014 212−966−5932 Fax: 212−966−4303 Email: kkimerling@aaldef.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 1:14-cv-14176 As of: 01/14/2020 02:12 PM EST 50 of 105

Madeleine K. Rodriguez Foley Hoag LLP 155 Seaport Boulevard Seaport World Trade Center West Boston, MA 02210 617−832−1720 Email: mrodriguez@foleyhoag.com ATTORNEY TO BE NOTICED

Amicus Harvard Black Alumni Society

represented by Cara McClellan (See above for address) ATTORNEY TO BE NOTICED

Earl A. Kirkland , III (See above for address) ATTORNEY TO BE NOTICED

Janai S. Nelson (See above for address) ATTORNEY TO BE NOTICED

Jennifer A. Holmes (See above for address) ATTORNEY TO BE NOTICED

Jin Hee Lee (See above for address) ATTORNEY TO BE NOTICED

Kenneth N. Thayer (See above for address) ATTORNEY TO BE NOTICED

Michaele N. Turnage Young (See above for address) ATTORNEY TO BE NOTICED

Rachel M. Kleinman (See above for address) ATTORNEY TO BE NOTICED

Samuel Spital (See above for address) ATTORNEY TO BE NOTICED

Sherrilyn A. Ifill (See above for address) ATTORNEY TO BE NOTICED

Amicus
Harvard Asian American Alumni Alliance

represented by Cara McClellan (See above for address) ATTORNEY TO BE NOTICED

Earl A. Kirkland , III (See above for address) ATTORNEY TO BE NOTICED

Janai S. Nelson (See above for address) ATTORNEY TO BE NOTICED

Jennifer A. Holmes

Case: 1:14-cv-14176 As of: 01/14/2020 02:12 PM EST 51 of 105

(See above for address) ATTORNEY TO BE NOTICED

Jin Hee Lee (See above for address) ATTORNEY TO BE NOTICED

Kenneth N. Thayer (See above for address) ATTORNEY TO BE NOTICED

Michaele N. Turnage Young (See above for address) ATTORNEY TO BE NOTICED

Rachel M. Kleinman (See above for address) ATTORNEY TO BE NOTICED

Samuel Spital (See above for address) ATTORNEY TO BE NOTICED

Sherrilyn A. Ifill (See above for address) ATTORNEY TO BE NOTICED

Amicus Association of Black Harvard Women

represented by Cara McClellan (See above for address) ATTORNEY TO BE NOTICED

Earl A. Kirkland , III (See above for address) ATTORNEY TO BE NOTICED

Janai S. Nelson (See above for address) ATTORNEY TO BE NOTICED

Jennifer A. Holmes (See above for address) ATTORNEY TO BE NOTICED

Jin Hee Lee (See above for address) ATTORNEY TO BE NOTICED

Kenneth N. Thayer (See above for address) ATTORNEY TO BE NOTICED

Michaele N. Turnage Young (See above for address) ATTORNEY TO BE NOTICED

Rachel M. Kleinman (See above for address) ATTORNEY TO BE NOTICED

Samuel Spital (See above for address) ATTORNEY TO BE NOTICED

Case: 1:14-cv-14176 As of: 01/14/2020 02:12 PM EST 52 of 105

Sherrilyn A. Ifill (See above for address) ATTORNEY TO BE NOTICED

Amicus 21 Colorful Crimson

represented by Cara McClellan (See above for address) ATTORNEY TO BE NOTICED

Earl A. Kirkland , III (See above for address) ATTORNEY TO BE NOTICED

Janai S. Nelson (See above for address) ATTORNEY TO BE NOTICED

Jennifer A. Holmes (See above for address) ATTORNEY TO BE NOTICED

Jin Hee Lee (See above for address) ATTORNEY TO BE NOTICED

Kenneth N. Thayer (See above for address) ATTORNEY TO BE NOTICED

Michaele N. Turnage Young (See above for address) ATTORNEY TO BE NOTICED

Rachel M. Kleinman (See above for address) ATTORNEY TO BE NOTICED

Samuel Spital (See above for address) ATTORNEY TO BE NOTICED

Sherrilyn A. Ifill (See above for address) ATTORNEY TO BE NOTICED

Amicus
American Civil Liberties Union 125 Broad Street 18th Fl. New York, NY 10004 212−519−7882

represented by Sarah Hinger American Civil Liberties Union Foundation 125 Broad St. 18th floor New York, NY 10004 (212) 549−2500 Fax: (212) 549−2654 Email: shinger@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus
American Civil Liberties Union Foundation of Massachusetts, Inc. 211 Congress Street

represented by Sarah Hinger (See above for address) LEAD ATTORNEY

Case: 1:14-cv-14176 As of: 01/14/2020 02:12 PM EST 53 of 105

3rd Fl. Boston, MA 02110 617−482−3170

PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew Segal American Civil Liberties Union 211 Congress Street Boston, MA 02110 617−482−3170 Fax: 617−451−0009 Email: msegal@aclum.org ATTORNEY TO BE NOTICED

Amicus Southeastern Legal Foundation

represented by Douglass C. Lawrence Curran Antonelli, LLP 22 Boston Wharf Road 7th Floor Boston, MA 02210 617−207−8670 Fax: (857) 263−5215 Email: dlawrence@curranantonelli.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

John J. Park , Jr. Strickland Brockington Lewis LLP Midtown Proscenium Suite 2200 1170 Peachtree Stree NE Atlanta, GA 30309 678−347−2208 Fax: 678−347−2210 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Center for Equal Opportunity

represented by Douglass C. Lawrence (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

John J. Park , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Reason Foundation

represented by Douglass C. Lawrence (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

John J. Park , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
Lawrence Crawford also known as JahJah Tishbite also known as Jonah Gabriel

Case: 1:14-cv-14176 As of: 01/14/2020 02:12 PM EST 54 of 105

also known as JahJah Al Mahdi

Interested Party United States

represented by Matthew J. Donnelly United States Department of Justice 950 Pennsylvania Avenue Washington, DC 20530 202−617−2788 Email: matthew.donnelly@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 11/17/2014 11/17/2014 11/17/2014 11/17/2014 11/17/2014
11/17/2014 11/17/2014
11/18/2014
12/04/2014 12/19/2014 12/19/2014 12/19/2014

# Docket Text
1 COMPLAINT against All Defendants Filing fee: $ 400, receipt number 0101−5281571 (Fee Status: Filing Fee paid), filed by Students for Fair Admissions, Inc.. (Attachments: # 1 Exhibit A, # 2 Civil Cover Sheet, # 3 Category Form)(Sanford, Paul) (Entered: 11/17/2014)
2 NOTICE of Appearance by Paul M Sanford on behalf of Students for Fair Admissions, Inc. (Sanford, Paul) (Entered: 11/17/2014)
3 NOTICE of Appearance by Benjamin C. Caldwell on behalf of Students for Fair Admissions, Inc. (Caldwell, Benjamin) (Entered: 11/17/2014)
4 CORPORATE DISCLOSURE STATEMENT by Students for Fair Admissions, Inc.. (Sanford, Paul) (Entered: 11/17/2014)
5 MOTION for Leave to Appear Pro Hac Vice for admission of William S. Consovoy, Thomas R. McCarthy and J. Michael Connolly Filing fee: $ 300, receipt number 0101−5281670 by Students for Fair Admissions, Inc.. (Attachments: # 1 Cert. of Attorney Consovoy, # 2 Cert. of Attorney McCarthy, # 3 Cert. of Attorney Connolly, # 4 Text of Proposed Order)(Sanford, Paul) (Entered: 11/17/2014)
6 ELECTRONIC NOTICE of Case Assignment. Judge Denise J. Casper assigned to case. If the trial Judge issues an Order of Reference of any matter in this case to a Magistrate Judge, the matter will be transmitted to Magistrate Judge Judith G. Dein. (Abaid, Kimberly) (Entered: 11/17/2014)
7 Summons Issued as to All Defendants. Counsel receiving this notice electronically should download this summons, complete one for each defendant and serve it in accordance with Fed.R.Civ.P. 4 and LR 4.1. Summons will be mailed to plaintiff(s) not receiving notice electronically for completion of service. (Abaid, Kimberly) (Entered: 11/17/2014)
8 Judge Denise J. Casper: ELECTRONIC ORDER entered granting 5 Motion for Leave to Appear Pro Hac Vice Added William S. Consovoy, Thomas R. McCarthy and John Michael Connolly. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. (Maynard, Timothy) (Entered: 11/18/2014)
9 WAIVER OF SERVICE Returned Executed by Students for Fair Admissions, Inc.. President and Fellows of Harvard College waiver sent on 11/20/2014, answer due 1/19/2015. (Sanford, Paul) (Entered: 12/04/2014)
10 NOTICE of Appearance by Felicia H. Ellsworth on behalf of President and Fellows of Harvard College (Ellsworth, Felicia) (Entered: 12/19/2014)
11 CORPORATE DISCLOSURE STATEMENT by President and Fellows of Harvard College. (Ellsworth, Felicia) (Entered: 12/19/2014)
12 Assented to MOTION for Extension of Time to February 18, 2015 to Respond to the Complaint by President and Fellows of Harvard College.(Ellsworth, Felicia) (Entered:

Case: 1:14-cv-14176 As of: 01/14/2020 02:12 PM EST 55 of 105

12/19/2014
12/22/2014 12/23/2014
01/09/2015 02/18/2015 02/19/2015 02/19/2015 03/02/2015 03/03/2015 03/12/2015 03/13/2015 03/16/2015 03/18/2015 04/23/2015 04/23/2015 04/23/2015 04/29/2015

12/19/2014)
13 Assented to MOTION for Leave to Appear Pro Hac Vice for admission of Seth P. Waxman, Paul R.Q. Wolfson, and Debo P. Adegbile Filing fee: $ 300, receipt number 0101−5332406 by President and Fellows of Harvard College. (Attachments: # 1 Certification of Seth P. Waxman, # 2 Certification of Paul R.Q. Wolfson, # 3 Certification of Debo P. Adegbile)(Ellsworth, Felicia) (Entered: 12/19/2014)
14 Judge Denise J. Casper: ELECTRONIC ORDER entered granting 12 Motion for Extension of Time to Answer to 2/18/15 by President and Fellows of Harvard College (Hourihan, Lisa) (Entered: 12/22/2014)
15 Judge Denise J. Casper: ELECTRONIC ORDER entered granting 13 Motion for Leave to Appear Pro Hac Vice Added Debo P. Adegbile. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. (Maynard, Timothy) (Entered: 12/23/2014)
16 STIPULATION of Dismissal as to Defendant The Board of Overseers of Harvard College Only by Students for Fair Admissions, Inc.. (Sanford, Paul) (Entered: 01/09/2015)
17 ANSWER to 1 Complaint, by President and Fellows of Harvard College.(Waxman, Seth) (Entered: 02/18/2015)
18 NOTICE of Scheduling Conference Scheduling Conference set for 3/23/2015 02:30 PM in Courtroom 11 before Judge Denise J. Casper. (Hourihan, Lisa) (Entered: 02/19/2015)
19 Judge Denise J. Casper: ORDER entered. Standing Order Re: Courtroom Opportunities for Relatively Inexperienced Attorneys(Hourihan, Lisa) (Entered: 02/19/2015)
20 MOTION to Continue Rule 16 Initial Scheduling Conference (UNOPPOSED) by Students for Fair Admissions, Inc..(Caldwell, Benjamin) (Entered: 03/02/2015)
21 Judge Denise J. Casper: ELECTRONIC ORDER entered granting 20 Motion to Continue Scheduling Conference set for 4/13/2015 02:00 PM in Courtroom 11 before Judge Denise J. Casper. (Hourihan, Lisa) (Entered: 03/03/2015)
22 ELECTRONIC NOTICE of Reassignment. Judge Allison D. Burroughs added. Judge Denise J. Casper no longer assigned to case. (Abaid, Kimberly) (Entered: 03/12/2015)
23 ELECTRONIC NOTICE OF RESCHEDULING Scheduling Conference RESET for 4/23/2015 10:30 AM in Courtroom 17 before Judge Allison D. Burroughs. (Folan, Karen) (Entered: 03/13/2015)
24 Assented to MOTION to Continue Intial Scheduling Conference to 04/30/2015 by President and Fellows of Harvard College.(Ellsworth, Felicia) (Entered: 03/16/2015)
25 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 24 Motion to Continue. Scheduling Conference reset for 4/30/2015 02:00 PM in Courtroom 17 before Judge Allison D. Burroughs. (Folan, Karen) (Entered: 03/18/2015)
26 JOINT STATEMENT of counsel pursuant to Federal Rule 26(f) and Local Rule 16.1(d). (Sanford, Paul) (Entered: 04/23/2015)
27 CERTIFICATION pursuant to Local Rule 16.1 (d)(3). (Ellsworth, Felicia) (Entered: 04/23/2015)
28 CERTIFICATION pursuant to Local Rule 16.1 . (Sanford, Paul) (Entered: 04/23/2015)
29 ELECTRONIC NOTICE OF RESCHEDULING Scheduling Conference reset for 4/30/2015 02:00 PM in Courtroom 4 before Judge Allison D. Burroughs. NOTICE IS FOR COURTROOM LOCATION CHANGE ONLY.(Folan, Karen) (Entered: 04/29/2015)

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04/29/2015 04/29/2015
04/29/2015
04/29/2015 04/30/2015
05/04/2015 05/13/2015 05/13/2015 05/13/2015 05/15/2015 05/15/2015 05/18/2015 05/18/2015

30 MOTION to Intervene In Defense of Harvard's Admission Policy by Sarah Cole, Fadhal Moore, Arjini Kumari Nawal, Itzel Vasquez−Rodriguez, Keyanna Wigglesworth, M. B., K. C., Y. D., G. E., A. G., I. G., R. H., J. L., R. S..(Hall, Rahsaan) (Entered: 04/29/2015)
31 MEMORANDUM in Support re 30 MOTION to Intervene In Defense of Harvard's Admission Policy filed by M. B., K. C., Sarah Cole, Y. D., G. E., A. G., I. G., R. H., J. L., Fadhal Moore, Arjini Kumari Nawal, R. S., Itzel Vasquez−Rodriguez, Keyanna Wigglesworth. (Attachments: # 1 Exhibit Declarations of Proposed Defendant−Intervenors, # 2 Exhibit Proposed Answer)(Hall, Rahsaan) (Entered: 04/29/2015)
32 MOTION for Leave to Appear Pro Hac Vice for admission of Jon M. Greenbaum Filing fee: $ 100, receipt number 0101−5535156 by M. B., K. C., Sarah Cole, Y. D., G. E., A. G., I. G., R. H., J. L., Fadhal Moore, Arjini Kumari Nawal, R. S., Itzel Vasquez−Rodriguez, Keyanna Wigglesworth. (Attachments: # 1 Exhibit A − Certificate of Good Standing, # 2 Exhibit B − Affidavit)(Hall, Rahsaan) (Entered: 04/29/2015)
33 NOTICE of Appearance by Rahsaan D. Hall on behalf of M. B., K. C., Sarah Cole, Y. D., G. E., A. G., I. G., R. H., J. L., Fadhal Moore, Arjini Kumari Nawal, R. S., Itzel Vasquez−Rodriguez, Keyanna Wigglesworth (Hall, Rahsaan) (Entered: 04/29/2015)
34 ELECTRONIC Clerk's Notes for proceedings held before Judge Allison D. Burroughs: Scheduling Conference held on 4/30/2015. Colloquy re: motion to intervene. Responses will be filed within 2 weeks. Colloquy re: applications. Colloquy re: discovery schedule. Scheduling order to issue. (Court Reporter: James Gibbons at jmsgibbons@yahoo.com.)(Attorneys present: Sanford, Consovoy, Caldwell, Waxman, Ellsworth) (Folan, Karen) (Entered: 04/30/2015)
35 Judge Allison D. Burroughs: ORDER entered. SCHEDULING ORDER: Status Conference set for 7/9/2015 02:00 PM in Courtroom 17 before Judge Allison D. Burroughs. Amended Pleadings due by 9/25/2015. Discovery to be completed by 4/1/2016 Motions due by 10/13/2016(Folan, Karen) (Entered: 05/04/2015)
36 NOTICE of Appearance by Patrick Strawbridge on behalf of Students for Fair Admissions, Inc. (Strawbridge, Patrick) (Entered: 05/13/2015)
37 MEMORANDUM in Opposition re 30 MOTION to Intervene In Defense of Harvard's Admission Policy filed by Students for Fair Admissions, Inc.. (Consovoy, William) (Entered: 05/13/2015)
38 RESPONSE to Motion re 30 MOTION to Intervene In Defense of Harvard's Admission Policy filed by President and Fellows of Harvard College. (Waxman, Seth) (Entered: 05/13/2015)
39 MOTION for Leave to File REPLY MEMORANDUM IN SUPPORT OF THE MOTION TO INTERVENE by M. B., K. C., Sarah Cole, Y. D., G. E., A. G., I. G., R. H., J. L., Fadhal Moore, Arjini Kumari Nawal, R. S., Itzel Vasquez−Rodriguez, Keyanna Wigglesworth. (Attachments: # 1 Exhibit Proposed Reply)(Hall, Rahsaan) (Entered: 05/15/2015)
40 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 39 Motion for Leave to File Document ; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (Folan, Karen) (Entered: 05/15/2015)
41 CERTIFICATE OF SERVICE pursuant to LR 5.2 by Students for Fair Admissions, Inc. re 36 Notice of Appearance of Patrick Strawbridge. (Strawbridge, Patrick) (Entered: 05/18/2015)
42 REPLY to Response to 39 MOTION for Leave to File REPLY MEMORANDUM IN SUPPORT OF THE MOTION TO INTERVENE filed by M. B., K. C., Sarah Cole, Y. D., G. E., A. G., I. G., R. H., J. L., Fadhal Moore, Arjini Kumari Nawal, R. S., Itzel Vasquez−Rodriguez, Keyanna Wigglesworth. (Hall, Rahsaan) (Entered: 05/18/2015)

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05/19/2015 05/19/2015 05/26/2015
05/26/2015 05/26/2015 05/26/2015 05/27/2015
05/27/2015
05/27/2015

43 Transcript of Status Conference held on April 30, 2015, before Judge Allison D. Burroughs. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: James Gibbons at jmsgibbons@yahoo.com Redaction Request due 6/9/2015. Redacted Transcript Deadline set for 6/19/2015. Release of Transcript Restriction set for 8/17/2015. (Scalfani, Deborah) (Entered: 05/19/2015)
44 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 05/19/2015)
45 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 32 Motion for Leave to Appear Pro Hac Vice Added Jon M. Greenbaum. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. Pursuant to Local Rule 83.5.3, local counsel shall also file an appearance in this matter. Further, local counsel shall review all filings and shall personally appear in Court for any hearings or conferences, unless expressly excused by the Court for good cause. (Folan, Karen) (Entered: 05/26/2015)
46 MOTION for Leave to Appear Pro Hac Vice for admission of Lawrence Culleen Filing fee: $ 100, receipt number 0101−5572007 by M. B., K. C., Sarah Cole, Y. D., G. E., A. G., I. G., R. H., J. L., Fadhal Moore, Arjini Kumari Nawal, R. S., Itzel Vasquez−Rodriguez, Keyanna Wigglesworth. (Attachments: # 1 Exhibit Certificate of Good Standing, # 2 Exhibit Affidavit)(Hall, Rahsaan) (Entered: 05/26/2015)
47 MOTION for Leave to Appear Pro Hac Vice for admission of Nancy L. Perkins Filing fee: $ 100, receipt number 0101−5572061 by M. B., K. C., Sarah Cole, Y. D., G. E., A. G., I. G., R. H., J. L., Fadhal Moore, Arjini Kumari Nawal, R. S., Itzel Vasquez−Rodriguez, Keyanna Wigglesworth. (Attachments: # 1 Exhibit Certificate of Good Standing, # 2 Exhibit Af)(Hall, Rahsaan) (Entered: 05/26/2015)
48 MOTION for Leave to Appear Pro Hac Vice for admission of Steven L. Mayer Filing fee: $ 100, receipt number 0101−5572070 by M. B., K. C., Sarah Cole, Y. D., G. E., A. G., I. G., R. H., J. L., Fadhal Moore, Arjini Kumari Nawal, R. S., Itzel Vasquez−Rodriguez, Keyanna Wigglesworth. (Attachments: # 1 Exhibit Certificate of Good Standing, # 2 Exhibit Affidavit)(Hall, Rahsaan) (Entered: 05/26/2015)
49 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 46 Motion for Leave to Appear Pro Hac Vice Added Lawrence Culleen. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. Pursuant to Local Rule 83.5.3, local counsel shall also file an appearance in this matter. Further, local counsel shall review all filings and shall personally appear in Court for any hearings or conferences, unless expressly excused by the Court for good cause. (Folan, Karen) (Entered: 05/27/2015)
50 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 47 Motion for Leave to Appear Pro Hac Vice Added Nancy L. Perkins. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. Pursuant to Local Rule 83.5.3, local counsel shall also file an appearance in this matter. Further, local counsel shall review all filings and shall personally appear in Court for any hearings or conferences, unless expressly excused by the Court for good cause. (Folan, Karen) (Entered: 05/28/2015)
51 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 48 Motion for Leave to Appear Pro Hac Vice Added Steven L. Mayer. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an

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06/15/2015 06/25/2015 06/25/2015
06/25/2015 06/30/2015 07/01/2015 07/06/2015 07/06/2015 07/13/2015
07/14/2015 07/14/2015 07/15/2015

ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. Pursuant to Local Rule 83.5.3, local counsel shall also file an appearance in this matter. Further, local counsel shall review all filings and shall personally appear in Court for any hearings or conferences, unless expressly excused by the Court for good cause. (Folan, Karen) (Entered: 05/28/2015)
52 Judge Allison D. Burroughs: ORDER enteredMEMORANDUM AND ORDER ON PROPOSED DEFENDANT−INTERVENORS' MOTION TO INTERVENE the Proposed Intervenors Motion to Intervene 30 is DENIED; however, the Proposed Intervenors are granted leave to participate in this action as amici curiae. (Montes, Mariliz) (Entered: 06/15/2015)
53 Joint MOTION for Protective Order (Stipulated) by President and Fellows of Harvard College.(Waxman, Seth) (Entered: 06/25/2015)
54 Judge Allison D. Burroughs: ELECTRONIC ORDER entered The parties' Joint Motion for Protective Order 53 is hereby ALLOWED, and the parties' Stipulated Protective Order is approved. However, given the lack of specificity in Paragraphs 10 and 13 regarding the use of protected documents during public proceedings, the Court reserves the right to allow, after notice to the parties, the disclosure of any document or information covered by the Protective Order or to modify the Protective Order at any time in the interests of justice and to ensure that any proceeding before this Court is fair, efficient, and consistent with the public interest. (Montes, Mariliz) (Entered: 06/25/2015)
55 Judge Allison D. Burroughs: ORDER entered. STIPULATION PROTECTIVE ORDER REGARDING DISCLOSURE AND USE OF DISCOVERY MATERIALS(Montes, Mariliz) (Entered: 06/25/2015)
56 MOTION to Continue Status Conference (UNOPPOSED) by Students for Fair Admissions, Inc..(Caldwell, Benjamin) (Entered: 06/30/2015)
57 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 56 Motion to Continue. Status Conference reset for 7/21/2015 02:00 PM in Courtroom 17 before Judge Allison D. Burroughs. (Folan, Karen) (Entered: 07/01/2015)
58 MOTION to Stay by President and Fellows of Harvard College.(Waxman, Seth) (Entered: 07/06/2015)
59 MEMORANDUM in Support re 58 MOTION to Stay filed by President and Fellows of Harvard College. (Attachments: # 1 Exhibit A)(Waxman, Seth) (Entered: 07/06/2015)
60 NOTICE OF APPEAL as to 52 Order on Motion to Intervene, by M. B., K. C., Sarah Cole, Y. D., G. E., A. G., I. G., R. H., J. L., Fadhal Moore, Arjini Kumari Nawal, R. S., Itzel Vasquez−Rodriguez, Keyanna Wigglesworth Filing fee: $ 505, receipt number 0101−5656193 Fee Status: Not Exempt. NOTICE TO COUNSEL: A Transcript Report/Order Form, which can be downloaded from the First Circuit Court of Appeals web site at http://www.ca1.uscourts.gov MUST be completed and submitted to the Court of Appeals. Counsel shall register for a First Circuit CM/ECF Appellate Filer Account at http://pacer.psc.uscourts.gov/cmecf. Counsel shall also review the First Circuit requirements for electronic filing by visiting the CM/ECF Information section at http://www.ca1.uscourts.gov/cmecf. US District Court Clerk to deliver official record to Court of Appeals by 8/3/2015. (Hall, Rahsaan) (Entered: 07/13/2015)
61 Certified and Transmitted Abbreviated Electronic Record on Appeal to US Court of Appeals re 60 Notice of Appeal. (Paine, Matthew) (Entered: 07/14/2015)
62 USCA Case Number 15−1823 for 60 Notice of Appeal filed by G. E., K. C., R. S., Keyanna Wigglesworth, Sarah Cole, Itzel Vasquez−Rodriguez, Fadhal Moore, M. B., Y. D., Arjini Kumari Nawal, I. G., R. H., A. G., J. L.. (Paine, Matthew) (Entered: 07/14/2015)
63 NOTICE TO COUNSEL: The clerk's office has received a request to video record this hearing as part of the "Cameras in the Courtroom" project. Counsel are directed to the

Case: 1:14-cv-14176 As of: 01/14/2020 02:12 PM EST 59 of 105

07/16/2015 07/16/2015 07/16/2015 07/17/2015 07/17/2015 07/20/2015 07/21/2015 07/21/2015 07/21/2015 07/21/2015 07/21/2015 07/21/2015
07/23/2015 07/23/2015 07/28/2015 07/28/2015 07/30/2015

district court web site at http://www.mad.uscourts.gov/general/cameras.html to determine if they wish to consent to video recording. Responses are due July 20, 2015. A RESPONSE FROM EACH PARTY IS REQUIRED. (Hurley, Virginia) (Entered: 07/15/2015)
64 MOTION to Compel Production by Students for Fair Admissions, Inc..(Caldwell, Benjamin) (Entered: 07/16/2015)
65 MEMORANDUM in Support re 64 MOTION to Compel Production filed by Students for Fair Admissions, Inc.. (Caldwell, Benjamin) (Main Document 65 replaced on 2/9/2016) (Montes, Mariliz). (Entered: 07/16/2015)
66 DECLARATION re 65 Memorandum in Support of Motion to Compel Production by Students for Fair Admissions, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Caldwell, Benjamin) (Entered: 07/16/2015)
67 MOTION to Seal Exhibit and Unredacted Memorandum of Law Associated with Motion to Compel by Students for Fair Admissions, Inc..(Caldwell, Benjamin) (Entered: 07/17/2015)
70 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 67 Motion to Seal (Montes, Mariliz) (Entered: 07/17/2015)
71 Opposition re 58 MOTION to Stay filed by Students for Fair Admissions, Inc.. (Strawbridge, Patrick) (Entered: 07/20/2015)
72 MOTION to Seal by President and Fellows of Harvard College.(Ellsworth, Felicia) (Entered: 07/21/2015)
73 MOTION for Leave to File Reply Memorandum In Support Of Motion To Stay by President and Fellows of Harvard College. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Ellsworth, Felicia) (Entered: 07/21/2015)
74 ELECTRONIC NOTICE OF RESCHEDULING Status Conference set for 7/21/2015 02:00 PM in Courtroom 16 before Judge Allison D. Burroughs. NOTICE IS FOR COURTROOM LOCATION CHANGE ONLY.(Folan, Karen) (Entered: 07/21/2015)
75 NOTICE of Withdrawal of Appearance by Rahsaan D. Hall (Hall, Rahsaan) (Entered: 07/21/2015)
76 NOTICE of Appearance by Priya A. Lane on behalf of M. B., K. C., Sarah Cole, Y. D., G. E., A. G., I. G., R. H., J. L., Fadhal Moore, Arjini Kumari Nawal, R. S., Itzel Vasquez−Rodriguez, Keyanna Wigglesworth (Lane, Priya) (Entered: 07/21/2015)
77 ELECTRONIC Clerk's Notes for proceedings held before Judge Allison D. Burroughs: granting 72 Motion to Seal; granting 73 Motion for Leave to File Document ; Status Conference held on 7/21/2015; (Court Reporter: Carol Scott at carollynnscott@cs.com.)(Attorneys present: Sanford, Consovoy, Strawbridge, Waxman, Ellsworth, Gershengorn) (Folan, Karen) (Entered: 07/23/2015)
78 REPLY to Response to 58 MOTION to Stay filed by President and Fellows of Harvard College. (Ellsworth, Felicia) (Entered: 07/23/2015)
79 DECLARATION re 78 Reply to Response to Motion to Stay by President and Fellows of Harvard College. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Ellsworth, Felicia) (Entered: 07/23/2015)
82 NOTICE by President and Fellows of Harvard College re 58 MOTION to Stay − Supplemental Submission (Ellsworth, Felicia) (Entered: 07/28/2015)
83 Supplemental Opposition re 58 MOTION to Stay filed by Students for Fair Admissions, Inc.. (Strawbridge, Patrick) (Entered: 07/28/2015)
84 Transcript of Status Conference held on July 21, 2015, before Judge Allison D. Burroughs. COA Case No. 15−1823. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Carol Scott at carollynnscott@cs.com Redaction Request due 8/20/2015. Redacted Transcript Deadline set for 8/31/2015. Release of Transcript Restriction set for 10/28/2015.

Case: 1:14-cv-14176 As of: 01/14/2020 02:12 PM EST 60 of 105

07/30/2015
07/30/2015 07/30/2015
07/30/2015 07/31/2015 08/05/2015 08/05/2015
08/06/2015 08/07/2015
08/07/2015 08/07/2015 08/07/2015 08/14/2015 08/14/2015 08/17/2015 08/18/2015

(Scalfani, Deborah) (Entered: 07/30/2015)
85 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 07/30/2015)
86 MEMORANDUM in Opposition re 64 MOTION to Compel Production filed by President and Fellows of Harvard College. (Ellsworth, Felicia) (Entered: 07/30/2015)
87 DECLARATION re 86 Memorandum in Opposition to Motion to Compel (McCrary) by President and Fellows of Harvard College. (Ellsworth, Felicia) (Main Document 87 replaced on 7/31/2015) (Montes, Mariliz). (Additional attachment(s) added on 7/31/2015: # 1 Addendum) (Montes, Mariliz). (Entered: 07/30/2015)
88 DECLARATION re 86 Memorandum in Opposition to Motion to Compel (McGrath) by President and Fellows of Harvard College. (Ellsworth, Felicia) (Entered: 07/30/2015)
89 Notice of correction to docket made by Court staff. Correction: Docket 87 corrected by detaching Addendum from Declaration and re−filing it as an attachment. (Montes, Mariliz) (Entered: 07/31/2015)
90 MOTION to Stay Proceedings Pending Appeal by M. B., K. C., Sarah Cole, Y. D., G. E., A. G., I. G., R. H., J. L., Fadhal Moore, Arjini Kumari Nawal, R. S., Itzel Vasquez−Rodriguez, Keyanna Wigglesworth.(Lane, Priya) (Entered: 08/05/2015)
91 MEMORANDUM in Support re 90 MOTION to Stay Proceedings Pending Appeal filed by M. B., K. C., Sarah Cole, Y. D., G. E., A. G., I. G., R. H., J. L., Fadhal Moore, Arjini Kumari Nawal, R. S., Itzel Vasquez−Rodriguez, Keyanna Wigglesworth. (Lane, Priya) (Entered: 08/05/2015)
92 MOTION for Leave to File Reply Memorandum in Support of Motion to Compel by Students for Fair Admissions, Inc.. (Attachments: # 1 Proposed Reply Memo, # 2 Declaration of Patrick Strawbridge)(Caldwell, Benjamin) (Entered: 08/06/2015)
93 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 92 Motion for Leave to File Document ; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (Montes, Mariliz) (Entered: 08/07/2015)
94 REPLY to Response to 64 MOTION to Compel Production filed by Students for Fair Admissions, Inc.. (Caldwell, Benjamin) (Entered: 08/07/2015)
95 DECLARATION re 94 Reply to Response to Motion to Compel by Students for Fair Admissions, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Caldwell, Benjamin) (Entered: 08/07/2015)
96 CERTIFICATE OF SERVICE pursuant to LR 5.2 by Students for Fair Admissions, Inc. re 95 Declaration re 94 Reply to Response to Motion to Compel by Students for Fair Admissions, Inc... (Caldwell, Benjamin) (Entered: 08/07/2015)
97 MOTION for Leave to File A Sur−Reply Memorandum In Opposition to SFFA's Motion to Compel by President and Fellows of Harvard College. (Attachments: # 1 Exhibit A)(Ellsworth, Felicia) (Entered: 08/14/2015)
98 Opposition re 90 MOTION to Stay Proceedings Pending Appeal filed by Students for Fair Admissions, Inc.. (Strawbridge, Patrick) (Entered: 08/14/2015)
99 RESPONSE to Motion re 90 MOTION to Stay Proceedings Pending Appeal filed by President and Fellows of Harvard College. (Ellsworth, Felicia) (Entered: 08/17/2015)
100 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 97 Motion for Leave to File Document ; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on

Case: 1:14-cv-14176 As of: 01/14/2020 02:12 PM EST 61 of 105

08/18/2015 09/01/2015 09/28/2015 09/30/2015
09/30/2015 10/01/2015 10/01/2015 10/01/2015 10/07/2015
10/09/2015
10/23/2015 10/23/2015 10/30/2015
12/09/2015

(date of order)− in the caption of the document. (Folan, Karen) (Entered: 08/18/2015)
101 SUR−REPLY to Motion re 64 MOTION to Compel Production filed by President and Fellows of Harvard College. (Ellsworth, Felicia) (Entered: 08/18/2015)
102 Letter/request (non−motion) from SFFA Requesting Telephonic Conference . (Strawbridge, Patrick) (Entered: 09/01/2015)
103 MOTION for Leave to Appear Pro Hac Vice Filing fee: $ 100, receipt number 0101−5765135 by Students for Fair Admissions, Inc.. (Attachments: # 1 Exhibit Certification of Michael H. Park, # 2 Exhibit Proposed Order)(Sanford, Paul) (Entered: 09/28/2015)
104 Emergency MOTION for Protective Order by President and Fellows of Harvard College. (Attachments: # 1 Declaration in Support of Motion, # 2 Exhibit Exhibit 1 to Ellsworth Declaration, # 3 Exhibit Exhibit 2 to Ellsworth Declaration, # 4 Exhibit Exhibit 3 to Ellsworth Declaration)(Ellsworth, Felicia) Modified on 10/1/2015 (Montes, Mariliz). (Entered: 09/30/2015)
107 MEMORANDUM in Support re 104 Emergency MOTION for Protective Order filed by President and Fellows of Harvard College. (Montes, Mariliz) (Entered: 10/01/2015)
105 Opposition re 104 Emergency MOTION for Protective Order filed by Students for Fair Admissions, Inc.. (Strawbridge, Patrick) (Entered: 10/01/2015)
106 DECLARATION re 105 Opposition to Motion for Protective Order by Students for Fair Admissions, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Strawbridge, Patrick) (Entered: 10/01/2015)
108 Notice of correction to docket made by Court staff. Correction: Docket 104 corrected by detaching Memorandum and re−filing it as a separate docket entry. (Montes, Mariliz) (Entered: 10/01/2015)
109 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 103 Motion for Leave to Appear Pro Hac Vice Added Michael H. Park. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. Pursuant to Local Rule 83.5.3, local counsel shall also file an appearance in this matter. Further, local counsel shall review all filings and shall personally appear in Court for any hearings or conferences, unless expressly excused by the Court for good cause. (Folan, Karen) (Entered: 10/07/2015)
110 Judge Allison D. Burroughs: ORDER entered The Proposed Defendant−Intervenors Motion to Stay [ECF No. 90] is ALLOWED IN PART and DENIED IN PART, and Harvards Motion to Stay [ECF No. 58] is also ALLOWED IN PART and DENIED IN PART, as set forth in the accompanying Order. And in light of the Court's ruling, Harvards Emergency Motion for a Protective Order and a Temporary Stay of Depositions [ECF No. 104] is DENIED AS MOOT. (Montes, Mariliz) (Entered: 10/09/2015)
111 RESPONSE TO COURT ORDER by President and Fellows of Harvard College Regarding The Proposed Scope Of Discovery During A Stay Pending Resolution Of Fisher II. (Ellsworth, Felicia) (Entered: 10/23/2015)
112 RESPONSE TO COURT ORDER by Students for Fair Admissions, Inc. re 110 Order on Motion to Stay,, Order on Motion for Protective Order,,, . (Strawbridge, Patrick) (Entered: 10/23/2015)
113 Judge Allison D. Burroughs: ELECTRONIC ORDER entered Plaintiff's Motion to Compel Production (ECF No. 64) is DENIED as MOOT with leave to renew. The issue of whether a sample of alumni interviewers should be identified and/or deposed will be addressed at a status conference to be held shortly following the First Circuit's decision regarding intervention. (Montes, Mariliz) (Entered: 10/30/2015)
114 OPINION of USCA as to 60 Notice of Appeal filed by G. E., K. C., R. S., Keyanna Wigglesworth, Sarah Cole, Itzel Vasquez−Rodriguez, Fadhal Moore, M. B., Y. D.,

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12/09/2015
12/31/2015
01/07/2016 01/27/2016 01/27/2016 01/27/2016 01/27/2016 01/28/2016
02/01/2016 02/01/2016 02/02/2016 02/03/2016
02/03/2016
02/05/2016 02/08/2016 02/09/2016

Arjini Kumari Nawal, I. G., R. H., A. G., J. L.. (Paine, Matthew) (Entered: 12/10/2015)
115 USCA Judgment as to 60 Notice of Appeal filed by G. E., K. C., R. S., Keyanna Wigglesworth, Sarah Cole, Itzel Vasquez−Rodriguez, Fadhal Moore, M. B., Y. D., Arjini Kumari Nawal, I. G., R. H., A. G., J. L. AFFIRMED. (Paine, Matthew) (Entered: 12/10/2015)
116 MANDATE of USCA as to 60 Notice of Appeal filed by G. E., K. C., R. S., Keyanna Wigglesworth, Sarah Cole, Itzel Vasquez−Rodriguez, Fadhal Moore, M. B., Y. D., Arjini Kumari Nawal, I. G., R. H., A. G., J. L.. Appeal 60 Terminated (Paine, Matthew) (Entered: 01/04/2016)
117 ELECTRONIC NOTICE of Hearing. Status Conference set for 1/28/2016 10:00 AM in Courtroom 17 before Judge Allison D. Burroughs. (Folan, Karen) (Entered: 01/07/2016)
118 Letter/request (non−motion) from SFFA to Judge Burroughs . (Caldwell, Benjamin) (Main Document 118 replaced on 2/9/2016) (Montes, Mariliz). (Entered: 01/27/2016)
119 MOTION to Seal Document (SFFA's Letter to Judge Burroughs) by Students for Fair Admissions, Inc..(Caldwell, Benjamin) (Entered: 01/27/2016)
120 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 119 Motion to Seal Document. (Folan, Karen) (Entered: 01/27/2016)
121 Letter/request (non−motion) from Harvard In Response to Letter/request (non−motion) from SFFA . (Ellsworth, Felicia) (Entered: 01/27/2016)
123 Electronic Clerk's Notes for proceedings held before Judge Allison D. Burroughs: Status Conference held on 1/28/2016. Colloquy re: discovery. ( Further Status Conference set for 2/25/2016 11:00 AM in Courtroom 17 before Judge Allison D. Burroughs.). (Court Reporter: Carol Scott at carollynnscott@cs.com.)(Attorneys present: Park, Caldwell, Strawbridge, Waxman, Ellsworth) (Folan, Karen) (Entered: 01/28/2016)
124 Letter/request (non−motion) from SFFA to Judge Burroughs . (Caldwell, Benjamin) (Main Document 124 replaced on 2/9/2016) (Montes, Mariliz). (Entered: 02/01/2016)
125 MOTION to Seal Document (SFFA's letter to Judge Burroughs dated 2.1.16) by Students for Fair Admissions, Inc..(Caldwell, Benjamin) (Entered: 02/01/2016)
126 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 125 Plaintiff's Motion to Seal Document (Montes, Mariliz) (Entered: 02/02/2016)
128 Transcript of Status Conference held on January 28, 2016, before Judge Allison D. Burroughs. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Carol Scott at carollynnscott@cs.com Redaction Request due 2/24/2016. Redacted Transcript Deadline set for 3/7/2016. Release of Transcript Restriction set for 5/3/2016. (Scalfani, Deborah) (Entered: 02/03/2016)
129 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 02/03/2016)
130 MOTION to Seal Response to SFFA's Jan. 27, 2016 Letter by President and Fellows of Harvard College.(Ellsworth, Felicia) (Entered: 02/05/2016)
131 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 130 Motion to Seal (Folan, Karen) (Entered: 02/08/2016)
132 Notice of correction to docket made by Court staff. Correction: Dockets 65 , 118 and 124 corrected: documents were replaced by counsel with identical documents, as he noticed the redacted material (from the original documents), was compromised as a result of hidden metadata. (Montes, Mariliz) (Entered: 02/09/2016)

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02/10/2016 02/10/2016 02/22/2016 02/25/2016
02/29/2016 03/01/2016 03/02/2016 03/03/2016 03/04/2016
03/04/2016
03/11/2016 04/15/2016 04/21/2016 04/22/2016 04/29/2016 04/29/2016

134 MOTION to Seal Document (SFFA's Reply to Harvard's February 5, 2016 Letter) by Students for Fair Admissions, Inc..(Caldwell, Benjamin) (Additional attachment(s) added on 2/10/2016: # 1 Exhibit) (Folan, Karen). (Entered: 02/10/2016)
135 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 134 Motion to Seal Document. (Folan, Karen) (Entered: 02/10/2016)
136 Letter/request (non−motion) from Harvard regarding SFFA's February 1, 2016 Letter . (Ellsworth, Felicia) (Entered: 02/22/2016)
137 Electronic Clerk's Notes for proceedings held before Judge Allison D. Burroughs: Status Conference held on 2/25/2016. Colloquy re: production of documents, protective order. (Further Status Conference set for 3/30/2016 10:00 AM in Courtroom 17 before Judge Allison D. Burroughs.). (Court Reporter: Carol Scott at carollynnscott@cs.com.)(Attorneys present: Park, Caldwell, Strawbridge, Ellsworth, Fox) (Folan, Karen) (Entered: 02/25/2016)
138 MOTION to Seal Document Feb. 29, 2016 Letter to Court regarding Database Fields by President and Fellows of Harvard College.(Ellsworth, Felicia) (Entered: 02/29/2016)
139 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 138 Defendant's Motion to File Under Seal Harvard's February 29, 2016 letter (Montes, Mariliz) (Entered: 03/01/2016)
141 MOTION to Seal Document (SFFA's Reply to Harvard's February 29, 2016 Letter) by Students for Fair Admissions, Inc..(Caldwell, Benjamin) (Entered: 03/02/2016)
142 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 141 Motion to Seal Document (Folan, Karen) (Entered: 03/03/2016)
143 Transcript of Status Conference held on February 25, 2016, before Judge Allison D. Burroughs. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Carol Scott at carollynnscott@cs.com Redaction Request due 3/25/2016. Redacted Transcript Deadline set for 4/4/2016. Release of Transcript Restriction set for 6/2/2016. (Scalfani, Deborah) (Entered: 03/04/2016)
144 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 03/04/2016)
146 Judge Allison D. Burroughs: STAY ORDER entered. ( Status Conference set for 4/25/2016 02:00 PM in Courtroom 17 before Judge Allison D. Burroughs.)(Folan, Karen) (Entered: 03/11/2016)
147 Letter/request (non−motion) from Harvard Regarding Discovery of SFFA . (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Ellsworth, Felicia) (Entered: 04/15/2016)
148 MOTION to Continue Status Conference of April 25, 2016 to April 29, 2016 (UNOPPOSED) by Students for Fair Admissions, Inc..(Caldwell, Benjamin) (Entered: 04/21/2016)
149 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 148 Motion to Continue Status Conference set for 4/29/2016 02:30 PM in Courtroom 17 before Judge Allison D. Burroughs. (Folan, Karen) (Entered: 04/22/2016)
150 Letter/request (non−motion) from Students for Fair Admissions . (Attachments: # 1 Affidavit Ex A, # 2 Exhibit Ex B, # 3 Affidavit Ex C, # 4 Affidavit Ex D, # 5 Affidavit Ex E)(Consovoy, William) (Entered: 04/29/2016)
151 Electronic Clerk's Notes for proceedings held before Judge Allison D. Burroughs: Status Conference held on 4/29/2016. Parties will have two weeks after Fisher to file a letter to the court. Colloquy re: discovery dispute. (Court Reporter: Cheryl Dahlstrom at cheryldahlstrom@comcast.net.)(Attorneys present: various) (Folan, Karen) (Entered: 05/03/2016)

Case: 1:14-cv-14176 As of: 01/14/2020 02:12 PM EST 64 of 105

05/10/2016
05/10/2016
05/18/2016 06/17/2016 06/27/2016 07/08/2016 07/08/2016 07/08/2016 07/08/2016 07/11/2016
07/19/2016 07/19/2016 07/20/2016 07/20/2016 07/20/2016
07/27/2016 07/28/2016 08/04/2016

152 Transcript of Status Conference held on April 29, 2016, before Judge Allison D. Burroughs. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Cheryl Dahlstrom at cheryldahlstrom@comcast.net Redaction Request due 5/31/2016. Redacted Transcript Deadline set for 6/10/2016. Release of Transcript Restriction set for 8/8/2016. (Scalfani, Deborah) (Entered: 05/10/2016)
153 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 05/10/2016)
154 Letter/request (non−motion) from Harvard Regarding Discovery of SFFA. (Attachments: # 1 Exhibit Yoga Source v. Choudhury, # 2 Exhibit SFFA Articles of Incorporation and Bylaws)(Ellsworth, Felicia) (Entered: 05/18/2016)
155 NOTICE of Appearance by William F. Lee on behalf of President and Fellows of Harvard College (Lee, William) (Entered: 06/17/2016)
156 ELECTRONIC NOTICE of Hearing. Status Conference set for 7/20/2016 03:15 PM in Courtroom 17 before Judge Allison D. Burroughs. (Folan, Karen) (Entered: 06/27/2016)
157 MOTION to Seal Letter by President and Fellows of Harvard College.(Ellsworth, Felicia) (Entered: 07/08/2016)
158 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 157 Defendant's Motion to File Under Seal Defendant's Unredacted Letter Regarding Implication of Fisher II for this Litigation. (Montes, Mariliz) (Entered: 07/08/2016)
159 MOTION to Seal Document (SFFA's letter to Judge Burroughs dated 7.8.16) by Students for Fair Admissions, Inc..(Caldwell, Benjamin) (Entered: 07/08/2016)
160 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 159 Motion to Seal Document. (Folan, Karen) (Entered: 07/08/2016)
161 NOTICE of Appearance by Matthew M. Cregor on behalf of M. B., K. C., Sarah Cole, Y. D., G. E., A. G., I. G., R. H., J. L., Fadhal Moore, Arjini Kumari Nawal, R. S., Itzel Vasquez−Rodriguez, Keyanna Wigglesworth (Cregor, Matthew) (Entered: 07/11/2016)
164 Assented to MOTION to Seal Unredacted Letter by President and Fellows of Harvard College.(Ellsworth, Felicia) (Entered: 07/19/2016)
165 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 164 Motion to Seal. (Folan, Karen) (Entered: 07/19/2016)
166 MOTION to Seal SFFA's Unredacted Letter to J. Burroughs by Students for Fair Admissions, Inc..(Caldwell, Benjamin) (Entered: 07/20/2016)
167 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 166 Motion to Seal SFFA's Unredacted Letter to J. Burroughs by Students for Fair Admissions, Inc. (Montes, Mariliz) (Entered: 07/20/2016)
170 Electronic Clerk's Notes for proceedings held before Judge Allison D. Burroughs: Status Conference held on 7/20/2016. Colloquy re: discovery. (Court Reporter: Carol Scott at carollynnscott@cs.com.)(Attorneys present: Consovoy, Ellsworth, Waxman, Strawbridge, Cregor) (Folan, Karen) (Entered: 07/21/2016)
171 Letter/request (non−motion) from Harvard regarding Scope of Discovery. (Ellsworth, Felicia) (Entered: 07/27/2016)
172 Letter/request (non−motion) from SFFA to Judge Burroughs responding to Harvard's 7.27.16 Letter . (Strawbridge, Patrick) (Entered: 07/28/2016)
173 Transcript of Status Conference held on July 20, 2016, before Judge Allison D. Burroughs. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter

Case: 1:14-cv-14176 As of: 01/14/2020 02:12 PM EST 65 of 105

08/04/2016
08/11/2016 08/29/2016 08/30/2016 08/31/2016
09/01/2016 09/01/2016 09/06/2016
09/07/2016 09/22/2016 09/23/2016 09/23/2016 09/23/2016 09/23/2016

Name and Contact Information: Carol Scott at carollynnscott@cs.com Redaction Request due 8/25/2016. Redacted Transcript Deadline set for 9/5/2016. Release of Transcript Restriction set for 11/2/2016. (Scalfani, Deborah) (Entered: 08/04/2016)
174 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 08/04/2016)
175 Letter/request (non−motion) from Students for Fair Admissions, Inc. . (Strawbridge, Patrick) (Entered: 08/11/2016)
176 ELECTRONIC NOTICE of Hearing. Status Conference set for 9/6/2016 09:30 AM in Courtroom 17 before Judge Allison D. Burroughs. Status Conference to address disputed issues with respect to Harvard's production of various databases.(Folan, Karen) (Entered: 08/29/2016)
177 Assented to MOTION for Leave to Appear Pro Hac Vice for admission of Daniel Winik Filing fee: $ 100, receipt number 0101−6270154 by President and Fellows of Harvard College.(Ellsworth, Felicia) (Entered: 08/30/2016)
178 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 177 Motion for Leave to Appear Pro Hac Vice Added Daniel Winik. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. Pursuant to Local Rule 83.5.3, local counsel shall also file an appearance in this matter. Further, local counsel shall review all filings and shall personally appear in Court for any hearings or conferences, unless expressly excused by the Court for good cause. (Montes, Mariliz) (Entered: 08/31/2016)
179 NOTICE of Appearance by Oren M. Sellstrom on behalf of M. B., K. C., Sarah Cole, Y. D., G. E., A. G., I. G., R. H., J. L., Fadhal Moore, Arjini Kumari Nawal, R. S., Itzel Vasquez−Rodriguez, Keyanna Wigglesworth (Sellstrom, Oren) (Entered: 09/01/2016)
180 Judge Allison D. Burroughs: ORDER entered. AMENDED SCHEDULING ORDER: Amended Pleadings due by 9/15/2016; Fact Discovery to be completed by 6/20/2017 Dispositive Motions due by 3/2/2018. (Montes, Mariliz) (Entered: 09/02/2016)
182 Electronic Clerk's Notes for proceedings held before Judge Allison D. Burroughs: Status Conference held on 9/6/2016. Colloquy re: pending motion, discovery issues, depositions, confidentiality designations. (Court Reporter: Carol Scott at carollynnscott@cs.com.)(Attorneys present: various) (Folan, Karen) (Entered: 09/09/2016)
181 Judge Allison D. Burroughs: ORDER on Various Discovery Disputes entered. (Montes, Mariliz) (Entered: 09/07/2016)
183 Assented to MOTION to Seal Memorandum and Supporting Materials in Support of Defendant's Motion to Dismiss by President and Fellows of Harvard College.(Ellsworth, Felicia) (Entered: 09/22/2016)
184 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 183 Motion to Seal (Folan, Karen) (Entered: 09/23/2016)
185 MOTION for Judgment on the Pleadings on Counts IV and VI by President and Fellows of Harvard College.(Waxman, Seth) (Entered: 09/23/2016)
186 MEMORANDUM in Support re 185 MOTION for Judgment on the Pleadings on Counts IV and VI filed by President and Fellows of Harvard College. (Waxman, Seth) (Entered: 09/23/2016)
187 MOTION to Dismiss for Lack of Jurisdiction by President and Fellows of Harvard College.(Waxman, Seth) (Entered: 09/23/2016)

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09/23/2016
09/26/2016 09/26/2016 09/29/2016 09/30/2016 10/03/2016
10/03/2016
10/05/2016 10/06/2016 10/19/2016 10/20/2016 10/20/2016 10/21/2016
10/21/2016

188 DECLARATION re 187 MOTION to Dismiss for Lack of Jurisdiction by President and Fellows of Harvard College. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I)(Ellsworth, Felicia) (Additional attachment(s) added on 9/27/2016: # 10 Exhibit A (unredacted), # 11 Exhibit B (unredacted), # 12 Exhibit C (unredacted), # 13 Exhibit E (unredcted), # 14 Exhibit F (unredacted), # 15 Exhibit G (unredacted)) (Montes, Mariliz). (Entered: 09/23/2016)
189 Letter/request (non−motion) from SFFA in response to motions filed by Harvard. (Strawbridge, Patrick) (Entered: 09/26/2016)
190 MEMORANDUM in Support re 187 MOTION to Dismiss for Lack of Jurisdiction (Redacted) filed by President and Fellows of Harvard College. (Waxman, Seth) (Additional attachment(s) added on 9/27/2016: # 1 (Unredacted) Memorandum in Supp.) (Montes, Mariliz). (Entered: 09/26/2016)
191 Letter/request (non−motion) from Harvard in response to SFFA's letter/request (Dkt. 189). (Waxman, Seth) (Entered: 09/29/2016)
192 Letter/request (non−motion) from SFFA in Response to Harvard's Letter of September 29, 2016. (Strawbridge, Patrick) (Entered: 09/30/2016)
193 Transcript of Status Conference held on September 6, 2016, before Judge Allison D. Burroughs. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Carol Scott at carollynnscott@cs.com Redaction Request due 10/24/2016. Redacted Transcript Deadline set for 11/3/2016. Release of Transcript Restriction set for 1/2/2017. (Scalfani, Deborah) (Entered: 10/03/2016)
194 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 10/03/2016)
196 STIPULATION re 187 MOTION to Dismiss for Lack of Jurisdiction , 185 MOTION for Judgment on the Pleadings on Counts IV and VI (Stipulation to Enlarge Time to File an Opposition) by Students for Fair Admissions, Inc.. (Caldwell, Benjamin) (Entered: 10/05/2016)
197 ELECTRONIC ENDORSEMENT APPROVING 196 Stipulation to Enlarge Time to File an Opposition, filed by Students for Fair Admissions, Inc. (Folan, Karen) (Entered: 10/06/2016)
199 MEMORANDUM in Support re 185 MOTION for Judgment on the Pleadings on Counts IV and VI filed by M. B., K. C., Sarah Cole, Y. D., G. E., A. G., I. G., R. H., J. L., Fadhal Moore, Arjini Kumari Nawal, R. S., Itzel Vasquez−Rodriguez, Keyanna Wigglesworth. (Culleen, Lawrence) (Entered: 10/19/2016)
200 Letter/request (non−motion) from Harvard regarding document production. (Ellsworth, Felicia) (Entered: 10/20/2016)
201 Assented to MOTION to Seal Document (Opposition Memorandums and Supporting Materials) by Students for Fair Admissions, Inc..(Caldwell, Benjamin) (Entered: 10/20/2016)
202 MEMORANDUM in Opposition re 185 MOTION for Judgment on the Pleadings on Counts IV and VI (Redacted) filed by Students for Fair Admissions, Inc.. (Consovoy, William) (Additional attachment(s) added on 10/27/2016: # 1 Sealed− Memorandum in Opposition for Judgment on the Pleadings) (Montes, Mariliz). (Entered: 10/21/2016)
203 DECLARATION re 202 Memorandum in Opposition to Motion by Students for Fair Admissions, Inc.. (Attachments: # 1 Exhibit A (Redacted))(Consovoy, William) (Additional attachment(s) added on 10/27/2016: # 2 Exhibit Sealed Exhibit to the Declaration of William S. Consovoy) (Montes, Mariliz). (Entered: 10/21/2016)

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10/21/2016 10/21/2016
10/24/2016 11/01/2016 11/01/2016 11/03/2016 11/03/2016 11/03/2016 11/03/2016 11/03/2016 11/03/2016

204 MEMORANDUM in Opposition re 187 MOTION to Dismiss for Lack of Jurisdiction (Redacted) filed by Students for Fair Admissions, Inc.. (Consovoy, William) (Additional attachment(s) added on 10/27/2016: # 1 Sealed MEMORANDUM in Opposition 187 MOTION to Dismiss) (Montes, Mariliz). (Entered: 10/21/2016)
205 DECLARATION re 204 Memorandum in Opposition to Motion (Redacted) by Students for Fair Admissions, Inc.. (Attachments: # 1 Exhibit A (Redacted), # 2 Exhibit B (Redacted), # 3 Exhibit C (Redacted), # 4 Exhibit D (Redacted), # 5 Exhibit E (Redacated), # 6 Exhibit F, # 7 Exhibit G (Redacted), # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J (Redacted), # 11 Exhibit K (Redacted), # 12 Exhibit L (Redacted), # 13 Exhibit M (Redacted), # 14 Exhibit N (Redacted), # 15 Exhibit O (Redacted), # 16 Exhibit P (Redacted), # 17 Exhibit Q (Redacted), # 18 Exhibit R (Redacted), # 19 Exhibit S (Redacted), # 20 Exhibit T (Redacted), # 21 Exhibit U)(Consovoy, William) (Additional attachment(s) added on 10/27/2016: # 22 Sealed Version: Plaintiff's Opposition to Defendant's Motion to Dismiss, # 23 Exhibit Sealed Exhibit A to Declaraiton of W. S. Convoy, # 24 Exhibit Sealed Exhibit B to Declaraiton of W. S. Convoy, # 25 Exhibit Sealed Exhibit C to Declaraiton of W. S. Convoy, # 26 Exhibit Sealed Exhibit D to Declaraiton of W. S. Convoy, # 27 Exhibit Sealed Exhibit E to Declaraiton of W. S. Convoy, # 28 Exhibit Sealed Exhibit F to Declaraiton of W. S. Convoy, # 29 Exhibit Sealed Exhibit G to Declaraiton of W. S. Convoy, # 30 Exhibit Sealed Exhibit H to Declaraiton of W. S. Convoy, # 31 Sealed Exhibit I to Declaration of W. S. Convoy, # 32 Exhibit Sealed Exhibit J to Declaration of W. S. Convoy, # 33 Exhibit Sealed Exhibit K to Declaration of W. S. Convoy, # 34 Exhibit Sealed Exhibit L to Declaration of W. S. Convoy, # 35 Exhibit Sealed Exhibit M to Declaration of W. S. Convoy, # 36 Exhibit Sealed Exhibit N to Declaration of W. S. Convoy, # 37 Exhibit Sealed Exhibit O to Declaration of W. S. Convoy, # 38 Exhibit Sealed Exhibit P to Declaration of W. S. Convoy, # 39 Exhibit Sealed Exhibit Q to Declaration of W. S. Convoy, # 40 Exhibit Sealed Exhibit R to Declaration of W. S. Convoy, # 41 Exhibit Sealed Exhibit S to Declaration of W. S. Convoy, # 42 Exhibit Sealed Exhibit T to Declaration of W. S. Convoy, # 43 Exhibit Sealed Exhibit U to Declaration of W. S. Convoy) (Montes, Mariliz). (Entered: 10/21/2016)
206 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 201 Motion to Seal Document (Folan, Karen) (Entered: 10/24/2016)
209 Assented to MOTION to Seal SFFA's Unredacted Letter to J. Burroughs and accompanying documents by Students for Fair Admissions, Inc..(Caldwell, Benjamin) (Entered: 11/01/2016)
210 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 209 Motion to Seal (Folan, Karen) (Entered: 11/01/2016)
211 MOTION for Leave to File Reply Memorandum in Support of Motion for Judgment on the Pleadings by President and Fellows of Harvard College.(Waxman, Seth) (Entered: 11/03/2016)
212 MOTION for Leave to File Reply Memorandum in Support of Motion to Dismiss by President and Fellows of Harvard College.(Waxman, Seth) (Entered: 11/03/2016)
213 MOTION to Seal Document Reply Memorandum and Exhibit in Support of Motion to Dismiss by President and Fellows of Harvard College.(Ellsworth, Felicia) (Entered: 11/03/2016)
215 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 211 Motion for Leave to File Document ; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (Folan, Karen) (Entered: 11/03/2016)
216 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 212 Motion for Leave to File Document ; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (Folan, Karen) (Entered: 11/03/2016)
217 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 213 Motion to Seal Document (Folan, Karen) (Entered: 11/03/2016)

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11/04/2016 11/04/2016 11/08/2016 12/01/2016 12/05/2016 12/12/2016
12/12/2016
12/12/2016 12/19/2016 12/19/2016 12/22/2016 12/22/2016
01/03/2017 01/03/2017 01/05/2017

218 REPLY to Response to 185 MOTION for Judgment on the Pleadings on Counts IV and VI filed by President and Fellows of Harvard College. (Waxman, Seth) (Entered: 11/04/2016)
219 DECLARATION re Reply Memorandum in Support of Motion to Dismiss by President and Fellows of Harvard College. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Ellsworth, Felicia) (Additional attachment(s) added on 11/8/2016: # 6 Exhibit A (sealed)) (Montes, Mariliz). (Entered: 11/04/2016)
220 REPLY to Response to 187 MOTION to Dismiss for Lack of Jurisdiction (Redacted) filed by President and Fellows of Harvard College. (Waxman, Seth) (Additional attachment(s) added on 11/8/2016: # 1 Sealed Reply Memorandum in Support of Defendant's Motion to Dismiss) (Montes, Mariliz). (Entered: 11/08/2016)
222 Assented to MOTION to Seal SFFA's Motions to Compel by Students for Fair Admissions, Inc..(Caldwell, Benjamin) (Entered: 12/01/2016)
223 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 222 Motion to Seal (Folan, Karen) (Entered: 12/05/2016)
228 MOTION for Leave to Appear Pro Hac Vice for admission of Nicole Gon Ochi Filing fee: $ 100, receipt number 0101−6410623 by M. B., K. C., Sarah Cole, Y. D., G. E., A. G., I. G., R. H., J. L., Fadhal Moore, Arjini Kumari Nawal, R. S., Itzel Vasquez−Rodriguez, Keyanna Wigglesworth. (Attachments: # 1 Exhibit Certificate of Good Standing, # 2 Exhibit Declaration)(Cregor, Matthew) (Entered: 12/12/2016)
229 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 228 Motion for Leave to Appear Pro Hac Vice Added Nicole K. Ochi. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. Pursuant to Local Rule 83.5.3, local counsel shall also file an appearance in this matter. Further, local counsel shall review all filings and shall personally appear in Court for any hearings or conferences, unless expressly excused by the Court for good cause. (Montes, Mariliz) (Entered: 12/12/2016)
230 MOTION for Leave to File to Participate as Amici Curiae by M. B., K. C., Sarah Cole, Y. D., G. E., A. G., I. G., R. H., J. L., Fadhal Moore, Arjini Kumari Nawal, R. S., Itzel Vasquez−Rodriguez, Keyanna Wigglesworth. (Attachments: # 1 Exhibit, # 2 Exhibit)(Culleen, Lawrence) (Entered: 12/12/2016)
231 MOTION to Seal Oppositions to SFFA's Motions to Compel by President and Fellows of Harvard College.(Ellsworth, Felicia) (Entered: 12/19/2016)
232 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 231 Motion to Seal (Folan, Karen) (Entered: 12/19/2016)
236 Assented to MOTION for Leave to File Reply Memoranda in Support of SFFA's Two Pending Motions to Compel by Students for Fair Admissions, Inc..(Caldwell, Benjamin) (Entered: 12/22/2016)
237 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 236 Motion for Leave to File Document ; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (Folan, Karen) (Entered: 12/22/2016)
238 Assented to MOTION to Seal Reply Memoranda in Support of SFFA's Two Pending Motions to Compel by Students for Fair Admissions, Inc..(Caldwell, Benjamin) (Entered: 01/03/2017)
239 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 238 Motion to Seal (Folan, Karen) (Entered: 01/03/2017)
240 Letter/request (non−motion) from SFFA regarding discovery matters. (Strawbridge, Patrick) (Entered: 01/05/2017)

Case: 1:14-cv-14176 As of: 01/14/2020 02:12 PM EST 69 of 105

01/18/2017
02/02/2017 02/03/2017 02/08/2017 02/08/2017 03/13/2017 03/13/2017 03/13/2017 03/15/2017 03/21/2017 03/21/2017 03/28/2017 03/29/2017 03/31/2017 04/03/2017
04/03/2017 04/03/2017 04/03/2017 04/03/2017

244 Judge Allison D. Burroughs: ELECTRONIC ORDER entered 230 Motion for Leave to Participate As Amici Curiae is GRANTED. The students J.F. and M.A. are allowed to participate in this matter as amici curiae alongside the current amici curiae and under the same terms and conditions. [ECF No. 52]. (Montes, Mariliz) (Entered: 01/18/2017)
245 Joint MOTION to Seal Letters Regarding Production Of Reviewer Comments by President and Fellows of Harvard College.(Ellsworth, Felicia) (Entered: 02/02/2017)
246 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 245 Motion to Seal (Folan, Karen) (Entered: 02/03/2017)
249 NOTICE of Appearance by Andrew S. Dulberg on behalf of President and Fellows of Harvard College (Dulberg, Andrew) (Entered: 02/08/2017)
250 NOTICE of Appearance by Elizabeth C. Mooney on behalf of President and Fellows of Harvard College (Mooney, Elizabeth) (Entered: 02/08/2017)
251 Assented to MOTION for Order to Produce Applicant Files by President and Fellows of Harvard College. (Attachments: # 1 Text of Proposed Order Proposed Order for Application Files)(Ellsworth, Felicia) (Entered: 03/13/2017)
252 Judge Allison D. Burroughs: ORDER entered granting 251 Motion for Order. (Folan, Karen) (Entered: 03/13/2017)
253 Assented to MOTION to Seal Motion to Quash Subpoenas and Deposition Notices or for a Protective Order by Students for Fair Admissions, Inc..(Caldwell, Benjamin) (Entered: 03/13/2017)
254 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 253 Motion to Seal (Folan, Karen) (Entered: 03/15/2017)
258 Assented to MOTION to Seal Motion for a Protective Order and to Quash Deposition Notices by Students for Fair Admissions, Inc..(Caldwell, Benjamin) (Entered: 03/21/2017)
259 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 258 Motion to Seal (Folan, Karen) (Entered: 03/21/2017)
263 Assented to MOTION to Seal Document Opposition to SFFA's Motion to Quash Subpoenas and Deposition Notices or For a Protective Order by President and Fellows of Harvard College.(Ellsworth, Felicia) (Entered: 03/28/2017)
264 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 263 Motion to Seal Document (Folan, Karen) (Entered: 03/29/2017)
265 Assented to MOTION for Leave to File Reply Memorandum in Support of SFFA's Motion to Quash Subpoenas and Deposition Notices or for a Protective Order by Students for Fair Admissions, Inc..(Caldwell, Benjamin) (Entered: 03/31/2017)
267 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 265 Motion for Leave to File Document ; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (Folan, Karen) (Entered: 04/03/2017)
268 Assented to MOTION to Seal Document Harvard's Opposition to SFFA's Motion for a Protective Order and to Quash Deposition Notices by President and Fellows of Harvard College.(Ellsworth, Felicia) (Entered: 04/03/2017)
269 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 268 Motion to Seal Document (Folan, Karen) (Entered: 04/03/2017)
270 Assented to MOTION to Seal Document SFFA's Reply in Support of its Motion to Quash Subpoenas and Deposition Notices or for a Protective Order by Students for Fair Admissions, Inc..(Caldwell, Benjamin) (Entered: 04/03/2017)
271 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 270 Motion to Seal Document (Folan, Karen) (Entered: 04/03/2017)

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04/06/2017 04/06/2017 04/07/2017 04/10/2017 04/10/2017 04/10/2017
04/10/2017 04/10/2017 04/11/2017 04/11/2017 04/12/2017 04/14/2017 04/18/2017 04/19/2017 04/20/2017
04/26/2017

272 First MOTION to Quash Plaintiff's Subpoena to BLS by Boston Public Schools.(Seich, Jennifer) (Main Document 272 replaced on 4/10/2017) (Montes, Mariliz). (Entered: 04/06/2017)
276 MEMORANDUM in Support of 272 First MOTION to Quash Plaintiff's Subpoena to BLS filed by Boston Public Schools. (Attachments: # 1 Exhibit 1)(Montes, Mariliz) (Entered: 04/10/2017)
275 Assented to MOTION to Seal SFFA's Motions to Compel by Students for Fair Admissions, Inc..(Caldwell, Benjamin) (Entered: 04/07/2017)
277 Notice of correction to docket made by Court staff. Correction: Docket 272 corrected by detaching memorandum and it's exhibit and re−docketing as a separate docket entry. (Montes, Mariliz) (Entered: 04/10/2017)
278 Assented to MOTION for Leave to File Reply Memorandum in Support of SFFA's Motion for a Protective Order and to Quash Deposition Notices by Students for Fair Admissions, Inc..(Caldwell, Benjamin) (Entered: 04/10/2017)
279 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 275 Assented−To Motion to Under Seal Two Motions to Compel; granting 278 Plaintiff's Assented−To Motion for Leave to File a Reply Memorandum in Support of Its Motion for a Protective Order and to Quash Deposition Notices ; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (Montes, Mariliz) (Entered: 04/10/2017)
280 Assented to MOTION to Seal Reply Memorandum in Support of SFFA's Motion for a Protective Order and to Quash Deposition Notices by Students for Fair Admissions, Inc..(Caldwell, Benjamin) (Entered: 04/10/2017)
281 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 280 Plaintiff's Assented−to Motion to File Under Seal Reply Memorandum in Support of Motion for a Protective Order and to Quash Deposition Notices (Montes, Mariliz) (Entered: 04/10/2017)
282 Assented to MOTION to Seal SFFA's Letter Motion Regarding Depositions and Custodians by Students for Fair Admissions, Inc..(Caldwell, Benjamin) (Entered: 04/11/2017)
283 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 282 Plaintiff's Assented−To Motion to File Under Seal Plaintiff's Letter Motion Regarding Depositions and Custodians. (Montes, Mariliz) (Entered: 04/11/2017)
288 Letter/request (non−motion) from SFFA to Judge Burroughs Requesting Conference. (Strawbridge, Patrick) (Entered: 04/12/2017)
291 Letter/request (non−motion) from Harvard in Response to Letter from SFFA (Dkt. 288). (Ellsworth, Felicia) (Entered: 04/14/2017)
292 Assented to MOTION to Seal Document Harvard's Oppositions to SFFA's Motions to Compel Production of Unredacted Documents and Application Files by President and Fellows of Harvard College.(Ellsworth, Felicia) (Entered: 04/18/2017)
293 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 292 Harvard's Assented− Motion to File Under Seal Harvard's Oppositions to SFFA's Motions to Compel (Montes, Mariliz) (Entered: 04/19/2017)
294 Opposition re 272 First MOTION to Quash Plaintiff's Subpoena to BLS filed by Students for Fair Admissions, Inc.. (Attachments: # 1 Notice of Subpoena to Boston Latin School, # 2 Notice of Subpoena to Thomas Jefferson High School for Science and Technology, # 3 Notice of Subpoena to Stuyvesant High School, # 4 Notice of Subpoena to Monta Vista High School)(Strawbridge, Patrick) (Entered: 04/20/2017)
295 Assented to MOTION for Leave to File Reply Memoranda in Support of SFFA's Two Pending Motions to Compel by Students for Fair Admissions, Inc..(Caldwell, Benjamin) (Entered: 04/26/2017)

Case: 1:14-cv-14176 As of: 01/14/2020 02:12 PM EST 71 of 105

04/27/2017 04/27/2017 04/28/2017 04/28/2017 05/01/2017 05/02/2017 05/05/2017 05/05/2017
05/05/2017 05/09/2017
05/10/2017 05/11/2017 05/19/2017

298 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 295 Motion for Leave to File Document ; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (Folan, Karen) (Entered: 04/27/2017)
299 Assented to MOTION to Seal Reply Memoranda in Support of SFFA's Two Pending Motions to Compel by Students for Fair Admissions, Inc..(Caldwell, Benjamin) (Entered: 04/27/2017)
300 Assented to MOTION to Seal Document Harvard's Response Letter to SFFA's April 12, 2017 Letter Motion re Depositions and Custodians by President and Fellows of Harvard College.(Ellsworth, Felicia) (Entered: 04/28/2017)
301 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 299 Motion to Seal (Folan, Karen) (Entered: 04/28/2017)
302 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 300 Motion to Seal Document (Folan, Karen) (Entered: 05/01/2017)
303 Letter/request (non−motion) from SFFA to Judge Burroughs Requesting Status Conference This Week to Address Urgent Discovery Matters . (Strawbridge, Patrick) (Entered: 05/02/2017)
304 Assented to MOTION to Seal SFFA's Emergency Application by Students for Fair Admissions, Inc..(Caldwell, Benjamin) (Entered: 05/05/2017)
305 Judge Allison D. Burroughs: ELECTRONIC ORDER entered. SFFAs motions to quash certain subpoenas [ECF Nos. 255, 260] are DENIED. SFFA failed to meet its burden under Fed. R. Civ. P. 45(d)(3). Because of the broad understanding of what constitutes relevant discovery, it is very unusual for a court to prohibit the taking of a deposition altogether. Green v. Cosby, 152 F. Supp. 3d 31, 35 (D. Mass. 2015), modified on reconsideration on other grounds, 160 F. Supp. 3d 431 (D. Mass. 2016) (quoting E.E.O.C. v. FreudenbergNOK Gen. P'ship, No. 07 Civ. 406, 2009 WL 909571, at *3 (D.N.H. Apr. 3, 2009)). Moreover, at this stage, the Court will not unduly fetter the parties ability to develop a complete factual record. (Folan, Karen) (Entered: 05/05/2017)
306 Judge Allison D. Burroughs: ELECTRONIC ORDER entered denying as moot 304 Motion to Seal. (Folan, Karen) (Entered: 05/05/2017)
307 Judge Allison D. Burroughs: ELECTRONIC ORDER entered Boston Latin's motion to quash SFFA's subpoena to BLS [ECF No. 272] is GRANTED IN PART and DENIED IN PART. BLS will not be required to produce documents or information that were prepared by or shared with Harvard. However, BLS is hereby ordered to produce the following: (1) documents from the Relevant Period prepared by BLS concerning the racial composition of applicants, admitted persons, or enrollees to Harvard, excluding documents that merely aggregate statistical information; (2) all internal communications from the Relevant Period by or among BLS employees or agents regarding Harvard's use of race in the admissions process; (3) any documents from the Relevant Period that describe any alleged discrimination by Harvard against persons of Asian descent in the college admissions process; and (4) all non−privileged communications during the Relevant Period concerning SFFA or this litigation. Furthermore, SFFA may depose a BLS representative. The motion to quash is otherwise granted. This is meant to minimize the burden on non−party BLS, while also ensuring the availability of information and the integrity of the discovery process. (Montes, Mariliz) Modified on 5/9/2017 NEF Regenerated.(Montes, Mariliz). (Entered: 05/09/2017)
311 Assented to MOTION to Seal SFFA's Reply in Support of its Letter Motion Regarding Depositions and Custodians by Students for Fair Admissions, Inc..(Caldwell, Benjamin) (Entered: 05/10/2017)
312 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 311 Motion to Seal (Folan, Karen) (Entered: 05/11/2017)
314 Assented to MOTION to Seal SFFA'S Letter Motion Requesting Production of Performance Reports by Students for Fair Admissions, Inc..(Caldwell, Benjamin)

Case: 1:14-cv-14176 As of: 01/14/2020 02:12 PM EST 72 of 105

05/19/2017 05/22/2017 05/23/2017 05/24/2017 05/26/2017
05/30/2017 05/31/2017 05/31/2017 06/02/2017 06/02/2017
06/16/2017 06/16/2017 06/21/2017 06/21/2017 06/27/2017 06/27/2017

(Entered: 05/19/2017)
315 Letter/request (non−motion) from SFFA requesting stay of discovery deadlines. (Strawbridge, Patrick) (Entered: 05/19/2017)
316 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 314 Motion to Seal (Folan, Karen) (Entered: 05/22/2017)
318 Letter/request (non−motion) from Harvard in Response to the May 19, 2017 Letter 315 from SFFA. (Ellsworth, Felicia) (Entered: 05/23/2017)
319 Letter/request (non−motion) from SFFA in response to Harvard's letter of May 23 regarding stay of discovery deadlines. (Strawbridge, Patrick) (Entered: 05/24/2017)
320 STIPULATION re 307 Order on Motion to Quash,,,,, (Joint Stipulation between SFFA and Boston Latin School re: SFFA's Subpoena for Documents and Testimony) by Boston Public Schools, Students for Fair Admissions, Inc.. (Attachments: # 1 Text of Proposed Order)(Caldwell, Benjamin) (Entered: 05/26/2017)
321 Judge Allison D. Burroughs: ORDER entered re 320 Stipulation, filed by Boston Public Schools, Students for Fair Admissions, Inc. (Folan, Karen) (Entered: 05/30/2017)
322 Assented to MOTION to Seal Document Harvard's Response Letter to SFFA's Letter Motion regarding Performance Reports by President and Fellows of Harvard College.(Ellsworth, Felicia) (Entered: 05/31/2017)
323 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 322 Motion to Seal Document (Folan, Karen) (Entered: 05/31/2017)
324 Judge Allison D. Burroughs: ORDER entered. MEMORANDUM AND ORDER. "...Accordingly, Harvards motion to dismiss for lack of subject matter jurisdiction [ECF No. 187] is DENIED. SO ORDERED."(Folan, Karen) (Entered: 06/02/2017)
325 Judge Allison D. Burroughs: ORDER entered. MEMORANDUM AND ORDER. "...Accordingly, Harvards motion for partial judgment on the pleadings as to Count IV and VI [ECF No. 185] is GRANTED. SO ORDERED."(Folan, Karen) (Entered: 06/02/2017)
327 Assented to MOTION to Seal SFFA's Reply Letter in support of its Letter Motion regarding Performance Reports by Students for Fair Admissions, Inc..(Caldwell, Benjamin) (Entered: 06/16/2017)
329 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 327 Motion to Seal (Folan, Karen) (Entered: 06/16/2017)
331 Assented to MOTION to Seal Document Harvard's Letter to the Court regarding June 6, 2017 Discovery Order by President and Fellows of Harvard College.(Ellsworth, Felicia) (Entered: 06/21/2017)
332 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 331 Motion to Seal Document (Folan, Karen) (Entered: 06/21/2017)
334 Joint MOTION to Amend September 1, 2016 Amended Scheduling Order by President and Fellows of Harvard College.(Ellsworth, Felicia) (Entered: 06/27/2017)
335 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 334 Motion to Amend. In light of the Court's extension of the fact discovery deadline until August 4, 2017 [ECF No. 326], the September 1, 2016 Scheduling Order [ECF No. 180] is amended as follows. Plaintiffs experts shall be designated and the information required by Fed. R. Civ. P. 26(a)(2) shall be disclosed by October 3, 2017. Defendants experts shall be designated and the information required by Fed. R. Civ. P. 26(a)(2) shall be disclosed by December 2, 2017. Plaintiffs rebuttal expert reports shall be disclosed by January 16, 2018. Defendants rebuttal expert reports shall be disclosed by February 26, 2018. All expert discovery, including expert depositions, shall be completed by May 1, 2018. All dispositive motions under Fed. R. Civ. P. 56 shall be filed by June 15, 2018. Opposition briefs shall be filed by July 30, 2018. Reply briefs shall be filed by August 30, 2018. (Folan, Karen) (Entered: 06/27/2017)

Case: 1:14-cv-14176 As of: 01/14/2020 02:12 PM EST 73 of 105

06/28/2017 07/07/2017 07/11/2017
08/01/2017 08/02/2017 08/02/2017 08/02/2017 08/03/2017 08/03/2017 08/07/2017 08/07/2017 08/07/2017

336 Reset Scheduling Order Deadlines: Fact Discovery to be completed by 8/4/2017, Dispositive Motions due by 6/15/2018, Oppositions due by 7/30/2018, Replies due by 8/30/2018. (Montes, Mariliz) (Entered: 06/28/2017)
338 Letter/request (non−motion) from SFFA to Judge Burroughs (Emergency Request for Judicial Intervention and Relief re: scheduling dispute) . (Strawbridge, Patrick) (Entered: 07/07/2017)
339 Judge Allison D. Burroughs: ELECTRONIC ORDER entered. On July 7, 2017, SFFA requested that the Court order certain witness depositions to be taken on a weekend or, alternatively, that those depositions be quashed. [ECF No. 338]. Although the Court strongly urges the parties to work to accommodate witness schedules, the Court will not require that depositions be taken on a weekend over the objection of either party. Further, an unwillingness to take depositions over a weekend does not justify quashing the depositions in their entirety.(Folan, Karen) (Entered: 07/11/2017)
340 Assented to MOTION to Seal SFFA's Request for Judicial Intervention and Relief by Students for Fair Admissions, Inc..(Caldwell, Benjamin) (Entered: 08/01/2017)
341 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 340 Motion to Seal (Folan, Karen) (Entered: 08/02/2017)
342 Assented to MOTION to Seal Document Harvard's Response to SFFA's August 1, 2017 Letter by President and Fellows of Harvard College.(Ellsworth, Felicia) (Entered: 08/02/2017)
343 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 342 Motion to Seal Document (Folan, Karen) (Entered: 08/02/2017)
345 Assented to MOTION to Seal SFFA's Reply in Support of its August 1, 2017 Request for Judicial Intervention and Relief by Students for Fair Admissions, Inc..(Caldwell, Benjamin) (Entered: 08/03/2017)
346 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 345 Motion to Seal (Folan, Karen) (Entered: 08/03/2017)
349 Assented to MOTION to Seal SFFA's Letter Motion Regarding Summary Sheets by Students for Fair Admissions, Inc..(Caldwell, Benjamin) (Entered: 08/07/2017)
350 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 349 Plaintiff's Assented−To Motion to File Under Seal Plaintiff's Letter Motion Regarding Summary Sheets (Montes, Mariliz) (Entered: 08/07/2017)
351 Judge Allison D. Burroughs: ELECTRONIC ORDER entered.

The Court is very reluctant to allow SFFA the additional deposition that it now seeks. [ECF No. 344]. The discovery period has ended. Further, the potential deponent clearly qualifies as a party, and SFFA has used all of its allotted party depositions. The testimony sought seems largely duplicative of information already obtained and of marginal utility. The Court would be well within its bounds to decline the request for the above reasons as well as other reasons set forth by Harvard in its opposition [ECF No. 347]. That being said, the Court is equally reluctant to force this case to go forward without a fully developed factual record, particularly where there is only one additional deposition sought and where Harvard arguably should have disclosed the name of the deponent earlier. Out of an abundance of caution and trying to fairly balance the interests of the parties, the Court will allow the deposition to go forward under the following conditions: the deposition will be limited to two (2) hours and will take place at a location and time convenient for the deponent and Harvard, with SFFA to bear all the costs of the deposition, including reasonable attorneys fees and costs incurred by Harvard. See San Francisco Health Plan v. McKesson Corp., 264 F.R.D. 20, 21 (D. Mass. 2010) (ordering party seeking additional depositions to pay associated costs because a balance must be struck between upholding the limitations of the rule and the reasons for those limitations on the one hand and counsel's judgment as to the needs of his or her case on the other). Alternatively, the parties can agree on a different format, including allowing the deponent to respond to written questions. (Montes, Mariliz) (Entered: 08/07/2017)

Case: 1:14-cv-14176 As of: 01/14/2020 02:12 PM EST 74 of 105

08/11/2017
08/11/2017 08/23/2017 08/25/2017
08/28/2017 08/31/2017 08/31/2017

353 MOTION to Seal Document Harvard's Response to SFFA's Letter Motion regarding Summary Sheets by President and Fellows of Harvard College.(Ellsworth, Felicia) (Entered: 08/11/2017)
354 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 353 Motion to Seal Document (Folan, Karen) (Entered: 08/11/2017)
355 Letter/request (non−motion) from SFFA . (Strawbridge, Patrick) (Entered: 08/23/2017)
357 Assented to MOTION to Seal SFFA's Reply in Support of its Letter Motion Regarding Summary Sheets by Students for Fair Admissions, Inc..(Caldwell, Benjamin) (Entered: 08/25/2017)
358 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 357 Motion to Seal (Folan, Karen) (Entered: 08/28/2017)
359 Letter/request (non−motion) from Harvard in Response to Aug. 23, 2017 Letter from SFFA . (Ellsworth, Felicia) (Entered: 08/31/2017)
360 Judge Allison D. Burroughs: ELECTRONIC ORDER entered.

09/20/2017 09/22/2017 12/21/2017 12/22/2017 12/27/2017 12/28/2017 01/17/2018 01/17/2018 01/23/2018 01/23/2018

The Court is in receipt of letters from both parties. [ECF Nos. 355, 359]. Despite the fact that discovery had closed and SFFA had used all of its allotted party depositions, the Court allowed one additional deposition to go forward with the understanding that SFFA would bear all of the reasonable associated expenses, including Harvard's attorneys' fees. [ECF No. 351]. SFFA has not presented compelling grounds to reconsider that decision. The estimate provided by Harvard is not unreasonable on its face. SFFA may challenge the reasonableness of the fees and costs after they have accrued or forego the deposition, which again appears to seek information that is marginal, duplicative, and disproportionate.(Montes, Mariliz) (Entered: 08/31/2017)
363 Joint MOTION to Amend 335 Order on Motion to Amend,,, Scheduling Order by Students for Fair Admissions, Inc..(Strawbridge, Patrick) (Entered: 09/20/2017)
364 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 363 Motion to Amend scheduling order (Folan, Karen) (Entered: 09/22/2017)
365 Assented to MOTION to Seal SFFA's Motion to Compel Regarding Harvard's Privilege Log by Students for Fair Admissions, Inc..(Caldwell, Benjamin) (Entered: 12/21/2017)
366 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 365 Motion to Seal (Folan, Karen) (Entered: 12/22/2017)
369 STIPULATION to Enlarge Time to file an Opposition to Plaintiff's Motion to Compel by President and Fellows of Harvard College. (Ellsworth, Felicia) (Entered: 12/27/2017)
370 ELECTRONIC ENDORSEMENT APPROVING 369 Stipulation to extend time to file opposition to motion to compel filed by President and Fellows of Harvard College (Folan, Karen) (Entered: 12/28/2017)
371 Assented to MOTION to Seal Document Harvard's Opposition to SFFA's Motion to Compel Production of Documents Withheld or Redacted by President and Fellows of Harvard College.(Ellsworth, Felicia) (Entered: 01/17/2018)
372 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 371 Motion to Seal Document (Folan, Karen) (Entered: 01/17/2018)
375 Assented to MOTION for Leave to File Reply Memorandum in Support of SFFA's Motion to Compel by Students for Fair Admissions, Inc..(Caldwell, Benjamin) (Entered: 01/23/2018)
376 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 375 Motion for Leave to File Document ; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (Folan, Karen) (Entered: 01/23/2018)

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01/24/2018 01/25/2018 01/25/2018 01/29/2018 02/07/2018 02/21/2018
02/21/2018
03/09/2018 03/14/2018

377 ELECTRONIC NOTICE of Hearing.Motion Hearing on Motion to compel set for 2/7/2018 02:30 PM in Courtroom 17 before Judge Allison D. Burroughs. Defendant to provide the court with unredacted copies of all documents at issue noting the proposed redactions 7 days prior to hearing.(Folan, Karen) (Entered: 01/24/2018)
378 Assented to MOTION to Seal Reply Memorandum in Support of SFFA's Motion to Compel by Students for Fair Admissions, Inc..(Caldwell, Benjamin) (Entered: 01/25/2018)
379 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 378 Motion to Seal (Folan, Karen) (Entered: 01/25/2018)
380 Receipt of Defendant's unredacted documents for in camera review, pursuant to 377 Order. (Montes, Mariliz) (Entered: 01/30/2018)
382 Electronic Clerk's Notes for proceedings held before Judge Allison D. Burroughs: Hearing held on 2/7/2018. Order to issue. (Court Reporter: Joan Daly at joanmdaly62@gmail.com.) (Folan, Karen) (Entered: 02/12/2018)
384 Transcript of Hearing held on February 7, 2018, before Judge Allison D. Burroughs. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Joan Daly at joanmdaly62@gmail.com Redaction Request due 3/14/2018. Redacted Transcript Deadline set for 3/26/2018. Release of Transcript Restriction set for 5/22/2018. (Scalfani, Deborah) (Entered: 02/21/2018)
385 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 02/21/2018)
386 STATUS REPORT (Joint Status Report on behalf of all parties) by Students for Fair Admissions, Inc.. (Consovoy, William) (Entered: 03/09/2018)
387 Judge Allison D. Burroughs: ELECTRONIC ORDER entered.

Upon review of the parties' joint status report filed on March 9, 2018 ECF No. 386 , the Court orders the following:

1. Dispositive motions shall be filed and briefed in accordance with the operative scheduling order ECF No. 363 .

2. Amicus briefs in support of a dispositive motion shall be filed by July 13, 2018. Amicus briefs in opposition to a dispositive motion shall be filed by August 17, 2018.

3. The parties shall meet and confer regarding the treatment of confidential materials to narrow the areas of dispute. The parties shall file letter briefs on the outstanding issues by March 30, 2018, and a hearing is scheduled for April 10, 2018 at 9:00 AM in Courtroom 17 before Judge Allison D. Burroughs.

4. By the agreement of the parties, the Court will bifurcate the issues of liability and remedies. Remedies will be addressed after the disposition of dispositive motions and/or trial on liability.

5. The Court is considering scheduling trial for four weeks beginning the week of January 2, 2019. The parties may address the trial schedule at the hearing on April 10, 2018.

03/30/2018 03/30/2018

(McDonagh, Christina) (Entered: 03/14/2018)
388 Letter/request (non−motion) from SFFA re: Treatment of Materials Marked Confidential . (Consovoy, William) (Entered: 03/30/2018)
389 Letter/request (non−motion) from Harvard Regarding Confidential Materials. (Ellsworth, Felicia) (Entered: 03/30/2018)

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04/06/2018 04/06/2018 04/06/2018 04/06/2018
04/06/2018 04/06/2018 04/06/2018 04/09/2018 04/09/2018 04/10/2018 04/11/2018 04/12/2018
04/12/2018
04/12/2018

390 Amicus Curiae APPEARANCE entered by Sigmund David Schutz on behalf of New England First Amendment Coalition; Reporters Committee for Freedom of the Press; Massachusetts Newspaper Publishers Association; GateHouse Media, LLC. (Schutz, Sigmund) (Entered: 04/06/2018)
391 MOTION for Leave to File as Amicus Curiae by New England First Amendment Coalition; Reporters Committee for Freedom of the Press; Massachusetts Newspaper Publishers Association; GateHouse Media, LLC. (Attachments: # 1 Exhibit A − Letter Brief)(Schutz, Sigmund) (Entered: 04/06/2018)
392 NOTICE of Appearance by Eric G. Penley on behalf of New England First Amendment Coalition; Reporters Committee for Freedom of the Press; Massachusetts Newspaper Publishers Association; GateHouse Media, LLC (Penley, Eric) (Entered: 04/06/2018)
393 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 391 Motion for Leave to File Document ; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (Folan, Karen) (Entered: 04/06/2018)
394 Leave to file granted on April 6, 2018 Letter/request (non−motion) from Amici Curiae . (Schutz, Sigmund) (Entered: 04/06/2018)
395 NOTICE by United States of Interest in Public Access to Summary Judgment Briefing and Materials (Donnelly, Matthew) (Entered: 04/06/2018)
396 Response by Students for Fair Admissions, Inc. to 389 Letter/request (non−motion) . (Consovoy, William) (Entered: 04/06/2018)
397 Letter/request (non−motion) from Harvard Regarding Confidential Materials. (Lee, William) (Entered: 04/09/2018)
398 Letter/request (non−motion) from Students, Amici Curiae Regarding Confidential Materials. (Greenbaum, Jon) (Entered: 04/09/2018)
399 NOTICE of Withdrawal of Appearance by Benjamin C. Caldwell (Caldwell, Benjamin) (Entered: 04/10/2018)
400 MOTION for Leave to Appear Pro Hac Vice for admission of Adam K. Mortara and John M. Hughes Filing fee: $ 200, receipt number 0101−7090675 by Students for Fair Admissions, Inc.. (Attachments: # 1 Cert. of Attorney Mortara, # 2 Cert. of Attorney Hughes, # 3 Text of Proposed Order)(Strawbridge, Patrick) (Entered: 04/11/2018)
401 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 400 Motion for Leave to Appear Pro Hac Vice Added Adam K. Mortara & John M. Hughes. Pursuant to Local Rule 83.5.3, local counsel shall also file an appearance in this matter. Further, local counsel shall review all filings and shall personally appear in Court for any hearings or conferences, unless expressly excused by the Court for good cause. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. (McDonagh, Christina) (Entered: 04/12/2018)
402 Transcript of Status Conference held on April 10, 2018, before Judge Allison D. Burroughs. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Richard Romanow at bulldog@richromanow.com Redaction Request due 5/3/2018. Redacted Transcript Deadline set for 5/14/2018. Release of Transcript Restriction set for 7/11/2018. (Scalfani, Deborah) (Entered: 04/12/2018)
403 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 04/12/2018)

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05/23/2018 404 Judge Allison D. Burroughs: ELECTRONIC ORDER entered.

As discussed at the hearing held on April 10, 2018 ECF No. 402 , the Court orders the following:

1. The deadlines for amicus briefing on dispositive motions ECF No. 387 are amended as follows. Amicus briefs in support of a dispositive motion shall be filed by July 30, 2018. Amicus briefs in opposition to a dispositive motion shall be filed by August 30, 2018.

2. Prior to June 15, 2018, the parties shall meet and confer and propose a procedure for the Court to determine whether any dispositive motion briefing and/or exhibits filed under seal should remain sealed.

05/23/2018 06/08/2018 06/11/2018
06/12/2018 06/12/2018 06/13/2018 06/14/2018 06/15/2018

(McDonagh, Christina) (Entered: 05/23/2018)
405 Judge Allison D. Burroughs: ORDER entered. PROCEDURAL ORDER re pretrial/trial Final Pretrial Conference set for 10/3/2018 10:00 AM in Courtroom 17 before Judge Allison D. Burroughs. Bench Trial set for 10/15/2018 10:00 AM in Courtroom 17 before Judge Allison D. Burroughs.(McDonagh, Christina) (Entered: 05/23/2018)
406 Joint MOTION for Leave to File Excess Pages by Students for Fair Admissions, Inc..(Strawbridge, Patrick) (Entered: 06/08/2018)
407 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 406 Motion for Leave to File Excess Pages. Parties are nonetheless encouraged to adhere to the limits set forth in Local Rule 7.1(b)(4) to the extent possible and to limit repetition between the various briefs. Further, given the potential volume of the submissions and the impending trial date, the court further orders as follows: a summary judgment motion shall include a separately filed Statement of Undisputed Facts which details, in numbered paragraphs, the material facts that the moving party contends are undisputed and entitle the movant to judgment as a matter of law. Only those facts which bear on dispositive material issues shall be included in this statement. Oppositions shall include a separate filing of a statement of material facts, responding to each numbered paragraph in the movants Statement of Undisputed Facts, which the respondent contends present genuine issues for trial. The responding party shall also set forth, in separate numbered paragraphs, any additional facts which the respondent contends preclude the entry of summary judgment. Statements of material facts in support of or in opposition to a motion for summary judgment shall include specific references to the parts of the record that support each stated fact. Each stated fact shall cite the source relied upon, including the page of any document or line and page number of any deposition to which reference is made. If both parties are moving for summary judgment, the parties may also submit one joint Statement of Undisputed Facts or include a separate joint submission of facts that are truly undisputed to the extent that that may make sense. In light of the number of pages that are likely to be submitted and the scheduled trial date, the parties are encouraged to work together to find ways in which the information, particularly undisputed facts, can be presented to the court as efficiently as possible. (Folan, Karen) (Entered: 06/11/2018)
408 JOINT STATEMENT re scheduling conference . (Ellsworth, Felicia) (Entered: 06/12/2018)
409 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 408 JOINT scheduling motion. (Folan, Karen) (Entered: 06/12/2018)
410 Joint MOTION to Seal Certain Information Filed in Connection with the Parties' Summary Judgment Motions by President and Fellows of Harvard College.(Ellsworth, Felicia) (Entered: 06/13/2018)
411 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 410 Motion to Seal (Folan, Karen) (Entered: 06/14/2018)
412 MOTION for Summary Judgment by Students for Fair Admissions, Inc..(Consovoy, William) (Entered: 06/15/2018)

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06/15/2018 06/15/2018 06/15/2018
06/15/2018 06/15/2018 06/15/2018 06/15/2018

413 MEMORANDUM in Support re 412 MOTION for Summary Judgment filed by Students for Fair Admissions, Inc.. (Consovoy, William) (Additional attachment(s) added on 6/18/2018: # 1 Unredacted version of Memorandum in Support) (Montes, Mariliz). (Additional attachment(s) added on 7/13/2018: # 2 Updated Redacted Version of Memorandum of Reasons in Support of Motion for Summary Judgment) (McDonagh, Christina). (Entered: 06/15/2018)
414 Statement of Material Facts L.R. 56.1 re 412 MOTION for Summary Judgment filed by Students for Fair Admissions, Inc.. (Consovoy, William) (Additional attachment(s) added on 6/18/2018: # 1 Unredacted version of Statement of Material Facts) (Montes, Mariliz). (Additional attachment(s) added on 7/13/2018: # 2 Updated Redacted Version of Plaintiff's Statement of Undisputed Material Facts) (McDonagh, Christina). (Additional attachment(s) added on 10/3/2018: # 3 Updated(10/3/2018) Revised Redacted Statement) (McDonagh, Christina). (Entered: 06/15/2018)
415 DECLARATION re 412 MOTION for Summary Judgment by Students for Fair Admissions, Inc.. (Attachments: # 1 Exhibit Expert Report, # 2 Exhibit Rebuttal Expert Report, # 3 Errata Errata)(Consovoy, William) (Additional attachment(s) added on 6/18/2018: # 4 Unredacted version of Declaration of P. Arcidiacono, # 5 Exhibit A− unredacted version, # 6 Exhibit B−unredacted version) (Montes, Mariliz). (Additional attachment(s) added on 7/13/2018: # 7 Updated Redacted Version of Declaration of Peter Arcidiacono, # 8 Updated Redacted Version of Exhibit 1, # 9 Updated Redacted Version of Exhibit 2) (McDonagh, Christina). (Entered: 06/15/2018)
416 DECLARATION re 412 MOTION for Summary Judgment by Students for Fair Admissions, Inc.. (Attachments: # 1 Exhibit Expert Report, # 2 Exhibit Rebuttal Expert Report, # 3 Exhibit Supplemental Report)(Consovoy, William) (Additional attachment(s) added on 6/18/2018: # 5 Exhibit A− unredacted version) (Montes, Mariliz). (Entered: 06/15/2018)
417 MOTION for Summary Judgment by President and Fellows of Harvard College.(Waxman, Seth) (Entered: 06/15/2018)
418 MEMORANDUM in Support re 417 MOTION for Summary Judgment filed by President and Fellows of Harvard College. (Waxman, Seth) (Additional attachment(s) added on 7/2/2018: # 1 Unredacted version of Memorandum in Support) (Montes, Mariliz). (Additional attachment(s) added on 7/10/2018: # 2 Updated Redacted Version) (McDonagh, Christina). (Entered: 06/15/2018)
419 DECLARATION re 417 MOTION for Summary Judgment by President and Fellows of Harvard College. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28, # 29 Exhibit 29, # 30 Exhibit 30, # 31 Exhibit 31, # 32 Exhibit 32, # 33 Exhibit 33, # 34 Exhibit 34, # 35 Exhibit 35, # 36 Exhibit 36, # 37 Exhibit 37, # 38 Exhibit 38, # 39 Exhibit 39, # 40 Exhibit 40, # 41 Exhibit 41, # 42 Exhibit 42, # 43 Exhibit 43, # 44 Exhibit 44, # 45 Exhibit 45, # 46 Exhibit 46, # 47 Exhibit 47, # 48 Exhibit 48, # 49 Exhibit 49, # 50 Exhibit 50, # 51 Exhibit 51, # 52 Exhibit 52, # 53 Exhibit 53, # 54 Exhibit 54, # 55 Exhibit 55, # 56 Exhibit 56, # 57 Exhibit 57, # 58 Exhibit 58, # 59 Exhibit 59, # 60 Exhibit 60, # 61 Exhibit 61, # 62 Exhibit 62, # 63 Exhibit 63, # 64 Exhibit 64, # 65 Exhibit 65, # 66 Exhibit 66, # 67 Exhibit 67, # 68 Exhibit 68, # 69 Exhibit 69, # 70 Exhibit 70, # 71 Exhibit 71, # 72 Exhibit 72, # 73 Exhibit 73, # 74 Exhibit 74, # 75 Exhibit 75, # 76 Exhibit 76, # 77 Exhibit 77, # 78 Exhibit 78, # 79 Exhibit 79, # 80 Exhibit 80, # 81 Exhibit 81, # 82 Exhibit 82, # 83 Exhibit 83, # 84 Exhibit 84, # 85 Exhibit 85, # 86 Exhibit 86, # 87 Exhibit 87, # 88 Exhibit 88, # 89 Exhibit 89, # 90 Exhibit 90, # 91 Exhibit 91, # 92 Exhibit 92, # 93 Exhibit 93, # 94 Exhibit 94, # 95 Exhibit 95, # 96 Exhibit 96, # 97 Exhibit 97)(Ellsworth, Felicia) (Additional attachment(s) added on 7/2/2018: # 98 Unredacted version of Declaration) (Montes, Mariliz). (Additional attachment(s) added on 7/2/2018: # 99 Exhibit 1 (filed under seal), # 100 Exhibit 3 (filed under seal), # 101 Exhibit 4 (filed under seal), # 102 Exhibit 5 (filed under seal), # 103 Exhibit 6 (filed under seal), # 104 Exhibit 7 (filed under seal), # 105 Exhibit 8 (filed under seal), # 106 Exhibit 9 (filed under seal), # 107

Case: 1:14-cv-14176 As of: 01/14/2020 02:12 PM EST 79 of 105

06/15/2018 06/15/2018

Exhibit 10 (filed under seal), # 108 Exhibit 11 (filed under seal), # 109 Exhibit 12 (filed under seal), # 110 Exhibit 13 (filed under seal), # 111 Exhibit 14 (filed under seal), # 112 Exhibit 15 (filed under seal), # 113 Exhibit 16 (filed under seal), # 114 Exhibit 17 (filed under seal), # 115 Exhibit 18 (filed under seal), # 116 Exhibit 19 (filed under seal), # 117 Exhibit 20 (filed under seal), # 118 Exhibit 21 (filed under seal), # 119 Exhibit 22 (filed under seal), # 120 Exhibit 23 (filed under seal), # 121 Exhibit 24 (filed under seal), # 122 Exhibit 25 (filed under seal), # 123 Exhibit 26 (filed under seal), # 124 Exhibit 27 (filed under seal), # 125 Exhibit 29 (filed under seal), # 126 Exhibit 30 (filed under seal), # 127 Exhibit 40 (filed under seal), # 128 Exhibit 43 (filed under seal), # 129 Exhibit 52 (filed under seal), # 130 Exhibit 53(filed under seal), # 131 Exhibit 54 (filed under seal), # 132 Exhibit 55 (filed under seal), # 133 Exhibit 56 (filed under seal), # 134 Exhibit 57 (filed under seal), # 135 Exhibit 61 (filed under seal), # 136 Exhibit 62 (filed under seal), # 137 Exhibit 63 (filed under seal), # 138 Exhibit 65 (filed under seal), # 139 Exhibit 93 (filed under seal)) (Montes, Mariliz). (Attachment 1 replaced on 7/10/2018) (McDonagh, Christina). (Attachment 9 replaced on 7/10/2018) (McDonagh, Christina). (Additional attachment(s) added on 7/10/2018: # 140 Updated Redacted Version of Exhibit 31, # 141 Updated Redacted Version of Exhibit 33, # 142 Updated Redacted Version of Exhibit 35, # 143 Updated Redacted Version of Exhibit 37) (McDonagh, Christina). (Entered: 06/15/2018)
420 Statement of Material Facts L.R. 56.1 re 417 MOTION for Summary Judgment filed by President and Fellows of Harvard College. (Waxman, Seth) (Additional attachment(s) added on 7/2/2018: # 1 Unredacted version of Statement of Undisputed Material Facts) (Montes, Mariliz). (Entered: 06/15/2018)
421 DECLARATION re 412 MOTION for Summary Judgment by Students for Fair Admissions, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28, # 29 Exhibit 29, # 30 Exhibit 30, # 31 Exhibit 31, # 32 Exhibit 32, # 33 Exhibit 33, # 34 Exhibit 34, # 35 Exhibit 35, # 36 Exhibit 36, # 37 Exhibit 37, # 38 Exhibit 38, # 39 Exhibit 39, # 40 Exhibit 40, # 41 Exhibit 41, # 42 Exhibit 42, # 43 Exhibit 43, # 44 Exhibit 44, # 45 Exhibit 45, # 46 Exhibit 46, # 47 Exhibit 47, # 48 Exhibit 48, # 49 Exhibit 49, # 50 Exhibit 50, # 51 Exhibit 51, # 52 Exhibit 52, # 53 Exhibit 53, # 54 Exhibit 54, # 55 Exhibit 55, # 56 Exhibit 56, # 57 Exhibit 57, # 58 Exhibit 58, # 59 Exhibit 59, # 60 Exhibit 60, # 61 Exhibit 61, # 62 Exhibit 62, # 63 Exhibit 63, # 64 Exhibit 64, # 65 Exhibit 65, # 66 Exhibit 66, # 67 Exhibit 67, # 68 Exhibit 68, # 69 Exhibit 69, # 70 Exhibit 70, # 71 Exhibit 71, # 72 Exhibit 72, # 73 Exhibit 73, # 74 Exhibit 74, # 75 Exhibit 75, # 76 Exhibit 76, # 77 Exhibit 77, # 78 Exhibit 78, # 79 Exhibit 79, # 80 Exhibit 80, # 81 Exhibit 81, # 82 Exhibit 82, # 83 Exhibit 83, # 84 Exhibit 84, # 85 Exhibit 85, # 86 Exhibit 86, # 87 Exhibit 87, # 88 Exhibit 88, # 89 Exhibit 89, # 90 Exhibit 90, # 91 Exhibit 91, # 92 Exhibit 92, # 93 Exhibit 93, # 94 Exhibit 94, # 95 Exhibit 95, # 96 Exhibit 96, # 97 Exhibit 97, # 98 Exhibit 98, # 99 Exhibit 99, # 100 Exhibit 100, # 101 Exhibit 101, # 102 Exhibit 102, # 103 Exhibit 103, # 104 Exhibit 104, # 105 Exhibit 105, # 106 Exhibit 106, # 107 Exhibit 107, # 108 Exhibit 108, # 109 Exhibit 109, # 110 Exhibit 110, # 111 Exhibit 111, # 112 Exhibit 112, # 113 Exhibit 113, # 114 Exhibit 114, # 115 Exhibit 115, # 116 Exhibit 116, # 117 Exhibit 117, # 118 Exhibit 118, # 119 Exhibit 119, # 120 Exhibit 120, # 121 Exhibit 121, # 122 Exhibit 122, # 123 Exhibit 123, # 124 Exhibit 124, # 125 Exhibit 125, # 126 Exhibit 126, # 127 Exhibit 127, # 128 Exhibit 128, # 129 Exhibit 129, # 130 Exhibit 130, # 131 Exhibit 131, # 132 Exhibit 132, # 133 Exhibit 133, # 134 Exhibit 134, # 135 Exhibit 135, # 136 Exhibit 136, # 137 Exhibit 137, # 138 Exhibit 138, # 139 Exhibit 139, # 140 Exhibit 140, # 141 Exhibit 141, # 142 Exhibit 142, # 143 Exhibit 143, # 144 Exhibit 144, # 145 Exhibit 145, # 146 Exhibit 146, # 147 Exhibit 147, # 148 Exhibit 148, # 149 Exhibit 149, # 150 Exhibit 150, # 151 Exhibit 151, # 152 Exhibit 152, # 153 Exhibit 153, # 154 Exhibit 154, # 155 Exhibit 155, # 156 Exhibit 156, # 157 Exhibit 157, # 158 Exhibit 158, # 159 Exhibit 159, # 160 Exhibit 160, # 161 Exhibit 161, # 162 Exhibit 162, # 163 Exhibit 163, # 164 Exhibit 164, # 165 Exhibit 165, # 166 Exhibit 166, # 167 Exhibit 167, # 168 Exhibit 168, # 169 Exhibit 169, # 170 Exhibit 170, # 171 Exhibit 171, # 172 Exhibit 172, # 173 Exhibit 173, # 174 Exhibit 174, # 175 Exhibit 175, # 176 Exhibit 176, # 177 Exhibit 177, # 178 Exhibit 178, # 179 Exhibit 179, # 180 Exhibit 180, # 181 Exhibit 181, # 182 Exhibit 182, # 183 Exhibit

Case: 1:14-cv-14176 As of: 01/14/2020 02:12 PM EST 80 of 105
183, # 184 Exhibit 184, # 185 Exhibit 185, # 186 Exhibit 186, # 187 Exhibit 187, # 188 Exhibit 188, # 189 Exhibit 189, # 190 Exhibit 190, # 191 Exhibit 191, # 192 Exhibit 192, # 193 Exhibit 193, # 194 Exhibit 194, # 195 Exhibit 195, # 196 Exhibit 196, # 197 Exhibit 197, # 198 Exhibit 198, # 199 Exhibit 199, # 200 Exhibit 200, # 201 Exhibit 201, # 202 Exhibit 202, # 203 Exhibit 203, # 204 Exhibit 204, # 205 Exhibit 205, # 206 Exhibit 206, # 207 Exhibit 207, # 208 Exhibit 208, # 209 Exhibit 209, # 210 Exhibit 210, # 211 Exhibit 211, # 212 Exhibit 212, # 213 Exhibit 213, # 214 Exhibit 214, # 215 Exhibit 215, # 216 Exhibit 216, # 217 Exhibit 217, # 218 Exhibit 218, # 219 Exhibit 219, # 220 Exhibit 220, # 221 Exhibit 221, # 222 Exhibit 222, # 223 Exhibit 223, # 224 Exhibit 224, # 225 Exhibit 225, # 226 Exhibit 226, # 227 Exhibit 227, # 228 Exhibit 228, # 229 Exhibit 229, # 230 Exhibit 230, # 231 Exhibit 231, # 232 Exhibit 232, # 233 Exhibit 233, # 234 Exhibit 234, # 235 Exhibit 235, # 236 Exhibit 236, # 237 Exhibit 237, # 238 Exhibit 238, # 239 Exhibit 239, # 240 Exhibit 240, # 241 Exhibit 241, # 242 Exhibit 242, # 243 Exhibit 243, # 244 Exhibit 244, # 245 Exhibit 245, # 246 Exhibit 246, # 247 Exhibit 247, # 248 Exhibit 248, # 249 Exhibit 249, # 250 Exhibit 250, # 251 Exhibit 251, # 252 Exhibit 252, # 253 Exhibit 253, # 254 Exhibit 254, # 255 Exhibit 255, # 256 Exhibit 256, # 257 Exhibit 257, # 258 Exhibit 258, # 259 Exhibit 259, # 260 Exhibit 260, # 261 Exhibit 261)(Consovoy, William) (Additional attachment(s) added on 6/18/2018: # 262 Unredacted version of Declaration, # 263 Exhibit 1 (filed under seal), # 264 Exhibit 2 (filed under seal), # 265 Exhibit 5 (filed under seal), # 266 Exhibit 6 (filed under seal), # 267 Exhibit 7 (filed under seal), # 268 Exhibit 8 (filed under seal), # 269 Exhibit 9 (filed under seal), # 270 Exhibit 10 (filed under seal)) (Montes, Mariliz). (Additional attachment(s) added on 6/18/2018: # 271 Exhibit 11 (filed under seal), # 272 Exhibit 12(filed under seal), # 273 Exhibit 13 (filed under seal), # 274 Exhibit 14 (filed under seal), # 275 Exhibit 16 (filed under seal), # 276 Exhibit 17(filed under seal), # 277 Exhibit 18(filed under seal), # 278 Exhibit 19 (filed under seal), # 279 Exhibit 20 (filed under seal), # 280 Exhibit 22 (filed under seal), # 281 Exhibit 23 (filed under seal), # 282 Exhibit 24 (filed under seal), # 283 Exhibit 25(filed under seal), # 284 Exhibit 26 (filed under seal), # 285 Exhibit 28 (filed under seal), # 286 Exhibit 29 (filed under seal), # 287 Exhibit 31 (filed under seal), # 288 Exhibit 32 (filed under seal), # 289 Exhibit 33 (filed under seal), # 290 Exhibit 35 (filed under seal), # 291 Exhibit 36 (filed under seal), # 292 Exhibit 37 (filed under seal), # 293 Exhibit 38(filed under seal), # 294 Exhibit 39 (filed under seal), # 295 Exhibit 40 (filed under seal), # 296 Exhibit 41, # 297 Exhibit 42 (filed under seal), # 298 Exhibit 43 (filed under seal), # 299 Exhibit 44(filed under seal), # 300 Exhibit 45 (filed under seal), # 301 Exhibit 46 (filed under seal), # 302 Exhibit 47 (filed under seal), # 303 Exhibit 48 (filed under seal), # 304 Exhibit 51 (filed under seal)) (Montes, Mariliz). (Additional attachment(s) added on 7/2/2018: # 305 Exhibit 52 (filed under seal), # 306 Exhibit 53 (filed under seal), # 307 Exhibit 54 (filed under seal), # 308 Exhibit 55 (filed under seal), # 309 Exhibit 56 (filed under seal), # 310 Exhibit 57 (filed under seal), # 311 Exhibit 58 (filed under seal), # 312 Exhibit 59 (filed under seal), # 313 Exhibit 60 (filed under seal), # 314 Exhibit 61 (filed under seal), # 315 Exhibit 62 (filed under seal), # 316 Exhibit 63 (filed under seal), # 317 Exhibit 64 (filed under seal), # 318 Exhibit 65 (filed under seal), # 319 Exhibit 66 (filed under seal), # 320 Exhibit 67 (filed under seal), # 321 Exhibit 68 (filed under seal), # 322 Exhibit 69 (filed under seal), # 323 Exhibit 70 (filed under seal), # 324 Exhibit 71 (filed under seal), # 325 Exhibit 72 (filed under seal), # 326 Exhibit 73 (filed under seal), # 327 Exhibit 74 (filed under seal), # 328 Exhibit 75 (filed under seal), # 329 Exhibit 76(filed under seal), # 330 Exhibit 77 (filed under seal), # 331 Exhibit 78 (filed under seal), # 332 Exhibit 79 (filed under seal), # 333 Exhibit 80 (filed under seal), # 334 Exhibit 81 (filed under seal), # 335 Exhibit 82 (filed under seal), # 336 Exhibit 83 (filed under seal), # 337 Exhibit 84 (filed under seal), # 338 Exhibit 85 (filed under seal), # 339 Exhibit 86 (filed under seal), # 340 Exhibit 87 (filed under seal), # 341 Exhibit 88 (filed under seal), # 342 Exhibit 89 (filed under seal), # 343 Exhibit 90 (filed under seal), # 344 Exhibit 91 (filed under seal)) (Montes, Mariliz). (Additional attachment(s) added on 7/2/2018: # 345 Exhibit 92 (filed under seal), # 346 Exhibit 93 (filed under seal), # 347 Exhibit 95 (filed under seal), # 348 Exhibit 96 (filed under seal), # 349 Exhibit 97 (filed under seal), # 350 Exhibit 99 (filed under seal), # 351 Exhibit 100 (filed under seal), # 352 Exhibit 101 (filed under seal), # 353 Exhibit 103 (filed under seal), # 354 Exhibit 104 (filed under seal), # 356 Exhibit 108 (filed under seal), # 357 Exhibit 109 (filed under seal), # 358 Exhibit 110 (filed under seal), # 359 Exhibit 111 (filed under seal), # 360 Exhibit 113 (filed under seal), # 361 Exhibit 114 (filed under seal), # 362 Exhibit 117 (filed under seal), # 363 Exhibit 118 (filed under seal), # 364 Exhibit 119

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06/22/2018
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(filed under seal), # 365 Exhibit 120 (filed under seal)) (Montes, Mariliz). (Additional attachment(s) added on 7/2/2018: # 366 Exhibit 121 (filed under seal), # 367 Exhibit 122 (filed under seal), # 368 Exhibit 124 (filed under seal), # 369 Exhibit 125 (filed under seal), # 370 Exhibit 126 (filed under seal), # 371 Exhibit 127 (filed under seal), # 372 Exhibit 128 (filed under seal), # 373 Exhibit 129 (filed under seal), # 374 Exhibit 130 (filed under seal), # 375 Exhibit 131 (filed under seal), # 376 Exhibit 132 (filed under seal), # 377 Exhibit 134 (filed under seal), # 378 Exhibit 135 (filed under seal), # 379 Exhibit 136 (filed under seal), # 380 Exhibit 137 (filed under seal), # 381 Exhibit 138 (filed under seal), # 382 Exhibit 139 (filed under seal), # 383 Exhibit 140 (filed under seal), # 384 Exhibit 141 (filed under seal), # 385 Exhibit 142 (filed under seal), # 386 Exhibit 144 (filed under seal), # 387 Exhibit 146 (filed under seal), # 388 Exhibit 147 (filed under seal), # 389 Exhibit 151 (filed under seal), # 390 Exhibit 152 (filed under seal), # 391 Exhibit 153 (filed under seal), # 392 Exhibit 158 (filed under seal), # 393 Exhibit 159 (filed under seal), # 394 Exhibit 160 (filed under seal), # 395 Exhibit 161 (filed under seal), # 396 Exhibit 162 (filed under seal), # 397 Exhibit 163 (filed under seal), # 398 Exhibit 169 (filed under seal), # 399 Exhibit 170 (filed under seal), # 400 Exhibit 171 (filed under seal), # 401 Exhibit 172 (filed under seal), # 402 Exhibit 173 (filed under seal), # 403 Exhibit 174 (filed under seal), # 404 Exhibit 175 (filed under seal)) (Montes, Mariliz). (Additional attachment(s) added on 7/2/2018: # 405 Exhibit 176 (filed under seal), # 406 Exhibit 177 (filed under seal), # 407 Exhibit 178 (filed under seal), # 408 Exhibit 179 (filed under seal), # 409 Exhibit 180 (filed under seal), # 410 Exhibit 181 (filed under seal), # 411 Exhibit 182 (filed under seal), # 412 Exhibit 183, # 413 Exhibit 184 (filed under seal), # 414 Exhibit 187 (filed under seal), # 415 Exhibit 188 (filed under seal), # 416 Exhibit 189 (filed under seal), # 417 Exhibit 192 (filed under seal), # 418 Exhibit 194 (filed under seal), # 419 Exhibit 195 (filed under seal), # 420 Exhibit 196 (filed under seal), # 421 Exhibit 197 (filed under seal), # 422 Exhibit 198 (filed under seal), # 423 Exhibit 199 (filed under seal), # 424 Exhibit 200 (filed under seal)) (Montes, Mariliz). (Additional attachment(s) added on 7/2/2018: # 425 Exhibit 202 (filed under seal), # 426 Exhibit 205 (filed under seal), # 427 Exhibit 206 (filed under seal), # 428 Exhibit 207 (filed under seal), # 429 Exhibit 220 (filed under seal), # 430 Exhibit 223 (filed under seal), # 431 Exhibit 224 (filed under seal), # 432 Exhibit 225 (filed under seal), # 433 Exhibit 226 (filed under seal), # 434 Exhibit 227 (filed under seal), # 435 Exhibit 228 (filed under seal), # 436 Exhibit 229 (filed under seal), # 437 Exhibit 230 (filed under seal), # 438 Exhibit 231 (filed under seal), # 439 Exhibit 233 (filed under seal), # 440 Exhibit 234 (filed under seal)) (Montes, Mariliz). (Additional attachment(s) added on 7/2/2018: # 441 Exhibit 236 (filed under seal), # 442 Exhibit 252 (filed under seal), # 443 Exhibit 253, # 444 Exhibit 254 (filed under seal), # 445 Exhibit 255 (filed under seal), # 446 Exhibit 256 (filed under seal), # 447 Exhibit 258 (filed under seal), # 448 Exhibit 259 (filed under seal), # 449 Exhibit 260 (filed under seal), # 450 Exhibit 261 (filed under seal)) (Montes, Mariliz). Modified to fix docket text on 7/30/2018 (McDonagh, Christina). (Entered: 06/15/2018)
422 MEMORANDUM in Support re 410 Joint MOTION to Seal Certain Information Filed in Connection with the Parties' Summary Judgment Motions filed by President and Fellows of Harvard College. (Attachments: # 1 Declaration of Robin Worth)(Ellsworth, Felicia) (Entered: 06/22/2018)
423 Letter/request (non−motion) from Sean D. Reyes Utah Attorney General. (McDonagh, Christina) (Entered: 06/27/2018)
424 Assented to MOTION to Seal Portions of SFFA's Opposition to Harvard's Motion to Seal by Students for Fair Admissions, Inc..(Strawbridge, Patrick) (Entered: 06/27/2018)
425 MOTION to Unseal Document by President and Fellows of Harvard College.(Ellsworth, Felicia) (Entered: 06/28/2018)
426 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 424 Motion to Seal (Folan, Karen) (Entered: 06/29/2018)
427 Opposition re 410 Joint MOTION to Seal Certain Information Filed in Connection with the Parties' Summary Judgment Motions filed by Students for Fair Admissions, Inc.. (Consovoy, William) (Additional attachment(s) added on 7/2/2018: # 1 SEALED Memorandum of Law (unredacted)) (McDonagh, Christina). (Entered: 06/29/2018)

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428 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 425 Motion to Unseal Document (Folan, Karen) (Entered: 07/02/2018)
429 JOINT STATEMENT of counsel Regarding the Submission of Amicus Briefs. (Strawbridge, Patrick) (Entered: 07/24/2018)
430 MOTION to Seal Certain Information Filed in Connection with Harvard's Opposition to Plaintiff's Motion for Summary Judgment by President and Fellows of Harvard College.(Ellsworth, Felicia) (Entered: 07/24/2018)
431 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 430 Motion to Seal (Folan, Karen) (Entered: 07/24/2018)
432 Judge Allison D. Burroughs: ELECTRONIC ORDER entered. In response to the parties' joint statement regarding the submission of amicus briefs [ECF No. 429], the Court hereby grants leave for any interested party to file an amicus brief on the pending dispositive motions, in accordance with the deadlines set forth in the Court's order dated May 23, 2018 [ECF No. 404]. (Folan, Karen) (Entered: 07/24/2018)
433 Assented to MOTION to Seal by Students for Fair Admissions, Inc..(Strawbridge, Patrick) (Entered: 07/26/2018)
434 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 433 Motion to Seal (Folan, Karen) (Entered: 07/26/2018)
435 MEMORANDUM in Opposition re 412 MOTION for Summary Judgment filed by President and Fellows of Harvard College. (Waxman, Seth) (Additional attachment(s) added on 7/30/2018: # 1 SEALED Oppostion to Motion for Summary Judgment) (McDonagh, Christina). (Entered: 07/27/2018)
436 Amicus Curiae APPEARANCE entered by Dwight G. Duncan on behalf of National Association of Scholars. (Duncan, Dwight) (Entered: 07/27/2018)
437 Counter Statement of Material Facts L.R. 56.1 re 412 MOTION for Summary Judgment filed by President and Fellows of Harvard College. (Waxman, Seth) (Additional attachment(s) added on 7/30/2018: # 1 SEALED Response to Statement of Material Facts) (McDonagh, Christina). (Entered: 07/27/2018)
438 DECLARATION Declaration of Felicia H. Ellsworth ISO Defendant's Opposition to Plaintiff's Motion for Summary Judgment by President and Fellows of Harvard College. (Attachments: # 1 Exhibit 98, # 2 Exhibit 99, # 3 Exhibit 100, # 4 Exhibit 101, # 5 Exhibit 102, # 6 Exhibit 103, # 7 Exhibit 104, # 8 Exhibit 105, # 9 Exhibit 106, # 10 Exhibit 107, # 11 Exhibit 108, # 12 Exhibit 109, # 13 Exhibit 110, # 14 Exhibit 111, # 15 Exhibit 112, # 16 Exhibit 113, # 17 Exhibit 114, # 18 Exhibit 115, # 19 Exhibit 116, # 20 Exhibit 117, # 21 Exhibit 118, # 22 Exhibit 119, # 23 Exhibit 120, # 24 Exhibit 121, # 25 Exhibit 122, # 26 Exhibit 123, # 27 Exhibit 124, # 28 Exhibit 125, # 29 Exhibit 126, # 30 Exhibit 127, # 31 Exhibit 128, # 32 Exhibit 129, # 33 Exhibit 130, # 34 Exhibit 131, # 35 Exhibit 132, # 36 Exhibit 133, # 37 Exhibit 134, # 38 Exhibit 135, # 39 Exhibit 136, # 40 Exhibit 137, # 41 Exhibit 138, # 42 Exhibit 139, # 43 Exhibit 140, # 44 Exhibit 141, # 45 Exhibit 142, # 46 Exhibit 143, # 47 Exhibit 144, # 48 Exhibit 145, # 49 Exhibit 146, # 50 Exhibit 147, # 51 Exhibit 148, # 52 Exhibit 149, # 53 Exhibit 150, # 54 Exhibit 151, # 55 Exhibit 152, # 56 Exhibit 153, # 57 Exhibit 154, # 58 Exhibit 155, # 59 Exhibit 156, # 60 Exhibit 157, # 61 Exhibit 158)(Ellsworth, Felicia) (Additional attachment(s) added on 7/30/2018: # 62 SEALED Declaration of Felicia H. Ellsworth in Support of Defendant's Opposition to Plaintiff's Motion for Summary Judgment, # 63 Exhibit 98 Unredacted Version, # 64 Exhibit 101 Unredacted Version, # 65 Exhibit 102 Unredacted Version) (McDonagh, Christina). (Additional attachment(s) added on 7/30/2018: # 66 Exhibit 105 Unredacted Version, # 67 Exhibit 119 Unredacted Version, # 68 Exhibit 128 Unredacted Version, # 69 Exhibit 151 Unredacted Version, # 70 Exhibit 158 Unredacted Version) (McDonagh, Christina). (Entered: 07/27/2018)
439 AMICUS BRIEF filed by National Association of Scholars . (Duncan, Dwight) (Entered: 07/30/2018)
440 MEMORANDUM in Support re 417 MOTION for Summary Judgment filed by M. B., K. C., Sarah Cole, Y. D., G. E., A. G., I. G., R. H., J. L., Fadhal Moore, Arjini Kumari Nawal, R. S., Itzel Vasquez−Rodriguez, Keyanna Wigglesworth. (Attachments: # 1

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Exhibit Student Declarations)(Culleen, Lawrence) (Entered: 07/30/2018)
441 Amicus Curiae APPEARANCE entered by Natashia Tidwell on behalf of American Council on Education. (Tidwell, Natashia) (Entered: 07/30/2018)
442 AMICUS BRIEF filed by American Council on Education and 36 Other Higher Education Organizations in Opposition to Plaintiff's Motion for Summary Judgment and in Support of Defendant's Motion for Summary Judgment. (Tidwell, Natashia) (Entered: 07/30/2018)
443 Amicus Curiae APPEARANCE entered by Seth B. Orkand on behalf of Brown University, Case Western Reserve University, Columbia University, Cornell University, Dartmouth College, Duke University, Emory University, George Washington University, John Hopkins University, Massachusetts Institute of Technology, Princeton University, Stanford University, University of Pennsylvania, Vanderbilt University, Washington University in St. Louis, Yale University. (Orkand, Seth) (Entered: 07/30/2018)
444 MOTION for Leave to Appear Pro Hac Vice for admission of Matthew S. Hellman Filing fee: $ 100, receipt number 0101−7251217 by Brown University, Case Western Reserve University, Columbia University, Cornell University, Dartmouth College, Duke University, Emory University, George Washington University, John Hopkins University, Massachusetts Institute of Technology, Princeton University, Stanford University, University of Pennsylvania, Vanderbilt University, Washington University in St. Louis, Yale University. (Attachments: # 1 Affidavit of Matthew S. Hellman)(Orkand, Seth) (Entered: 07/30/2018)
445 AMICUS BRIEF filed by Brown University, Case Western Reserve University, Columbia University, Cornell University, Dartmouth College, Duke University, Emory University, George Washington University, John Hopkins University, Massachusetts Institute of Technology, Princeton University, Stanford University, University of Pennsylvania, Vanderbilt University, Washington University in St. Louis, Yale University in Support of Defendants. (Orkand, Seth) (Entered: 07/30/2018)
446 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 444 Motion for Leave to Appear Pro Hac Vice Added Matthew S. Hellman. Pursuant to Local Rule 83.5.3, local counsel shall also file an appearance in this matter. Further, local counsel shall review all filings and shall personally appear in Court for any hearings or conferences, unless expressly excused by the Court for good cause. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. (McDonagh, Christina) (Entered: 07/30/2018)
447 BRIEF by Walter Dellinger (Brief For Walter Dellinger As Amicus Curiae In Support Of Defendant On The Issue Of Standing). (Wisner, Joanne) (Entered: 07/30/2018)
448 Amicus Curiae APPEARANCE entered by Randall B. Clark on behalf of Amici Curiae Economists Michael Keane et al., in Support of Students for Fair Admissions. (Clark, Randall) Modified to correct docket text on 7/30/2018 (McDonagh, Christina). (Entered: 07/30/2018)
449 MEMORANDUM in Opposition re 417 MOTION for Summary Judgment filed by Students for Fair Admissions, Inc.. (Consovoy, William) (Additional attachment(s) added on 7/31/2018: # 1 Memorandum of Reasons in Opposition to Harvard's Motion For Summary Judgment (Unredacted and Sealed)) (McDonagh, Christina). (Entered: 07/30/2018)
450 AMICUS BRIEF filed by Amici Curiae Economists Michael Keane et al., in Support of Students for Fair Admissions . (Attachments: # 1 Exhibit)(Clark, Randall) (Entered: 07/30/2018)
451 MOTION for Leave to Appear Pro Hac Vice for admission of C. Boyden Gray, Andrew R. Varcoe, Adam R.F. Gustafson, James R. Conde Filing fee: $ 400, receipt number 0101−7251970 by Amici Curiae Economists Michael Keane et al., in Support

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of Students for Fair Admissions.(Clark, Randall) (Entered: 07/30/2018)
452 Counter Statement of Material Facts L.R. 56.1 re 417 MOTION for Summary Judgment filed by Students for Fair Admissions, Inc.. (Consovoy, William) (Additional attachment(s) added on 7/31/2018: # 1 Unredacted Version of Plaintiff's Response to Defendant's Statement of Undisputed Material Facts (Filed under Seal)) (McDonagh, Christina). (Additional attachment(s) added on 10/3/2018: # 2 Updated (10/3/2018) Redacted Response) (McDonagh, Christina). (Entered: 07/30/2018)
453 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 451 Motion for Leave to Appear Pro Hac Vice Added James R. Conde, Adam R.F. Gustafson, C. Boyden Gray, Andrew R. Varcoe. Pursuant to Local Rule 83.5.3, local counsel shall also file an appearance in this matter. Further, local counsel shall review all filings and shall personally appear in Court for any hearings or conferences, unless expressly excused by the Court for good cause. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. (McDonagh, Christina) (Entered: 07/30/2018)
454 DECLARATION of Michael Connolly in Support of SFFA's Opposition to Harvard's Motion for Summary Judgment by Students for Fair Admissions, Inc.. (Attachments: # 1 Exhibit 262, # 2 Exhibit 263, # 3 Exhibit 264, # 4 Exhibit 265, # 5 Exhibit 266, # 6 Exhibit 267, # 7 Exhibit 268, # 8 Exhibit 269, # 9 Exhibit 270, # 10 Exhibit 271, # 11 Exhibit 272, # 12 Exhibit 273, # 13 Exhibit 274, # 14 Exhibit 275, # 15 Exhibit 276, # 16 Exhibit 277, # 17 Exhibit 278, # 18 Exhibit 279, # 19 Exhibit 280, # 20 Exhibit 281, # 21 Exhibit 282, # 22 Exhibit 283, # 23 Exhibit 284, # 24 Exhibit 285)(Consovoy, William) (Additional attachment(s) added on 7/31/2018: # 25 Unredacted DECLARATION of Michael Connolly in Support of SFFA's Opposition to Harvard's Motion for Summary Judgment (Filed Under Seal), # 26 Exhibit 262 (Filed Under Seal), # 27 Exhibit 263 (Filed Under Seal), # 28 Exhibit 264 (Filed Under Seal), # 29 Exhibit 265 (Filed Under Seal), # 30 Exhibit 266 (Filed Under Seal), # 31 Exhibit 267 (Filed Under Seal), # 32 Exhibit 268 (Filed Under Seal), # 33 Exhibit 269 (Filed Under Seal), # 34 Exhibit 270 (Filed Under Seal), # 35 Exhibit 271 (Filed Under Seal), # 36 Exhibit 272 (Filed Under Seal), # 37 Exhibit 273 (Filed Under Seal), # 38 Exhibit 274 (Filed Under Seal), # 39 Exhibit 275 (Filed Under Seal), # 40 Exhibit 276 (Filed Under Seal), # 41 Exhibit 277 (Filed Under Seal), # 42 Exhibit 278 (Filed Under Seal), # 43 Exhibit 279 (Filed Under Seal), # 44 Exhibit 280 (Filed Under Seal), # 45 Exhibit 281 (Filed Under Seal), # 46 Exhibit 282 (Filed Under Seal), # 47 Exhibit 283 (Filed Under Seal), # 48 Exhibit 284 (Filed Under Seal), # 49 Exhibit 285 (Filed Under Seal)) (McDonagh, Christina). (Entered: 07/30/2018)
455 MOTION for Leave to File to Participate as Amici Curiae by Harvard−Radcliffe Black Students Association, Kuumba Singers of Harvard College, Fuerza Latina of Harvard, Native Americans At Harvard College, Harvard−Radcliffe Asian American Association, Harvard−Radcliffe Asian American Women's Association, Harvard Asian American Brotherhood, Harvard Vietnamese Association, Harvard−Radcliffe Chinese Students Association, Harvard Korean Association, Harvard Japan Society, Harvard South Asian Association, Harvard Islamic Society, Task Force on Asian and Pacific American Studies at Harvard College, Harvard Phillips Brooks House Association, Harvard Minority Association of Pre−Medical Students, Coalition for a Diverse Harvard, First Generation Harvard Alumni, Native American Alumni of Harvard University, Harvard University Muslim Alumni, Harvard Latino Alumni Alliance. (Attachments: # 1 Exhibit Amicus Brief by Harvard Student and Alumni Organizations in Support of Defendants' Motion for Summary Judgment, # 2 Exhibit Declaration, # 3 Exhibit Declaration, # 4 Exhibit Declaration, # 5 Exhibit Declaration, # 6 Exhibit Declaration, # 7 Exhibit Declaration, # 8 Exhibit Declaration, # 9 Exhibit Declaration, # 10 Exhibit Declaration, # 11 Exhibit Declaration, # 12 Exhibit Declaration, # 13 Exhibit Declaration, # 14 Exhibit Declaration, # 15 Exhibit Declaration, # 16 Exhibit Declaration, # 17 Exhibit Declaration)(Thayer, Kenneth) (Entered: 07/30/2018)
456 NOTICE of Appearance by Kenneth N. Thayer on behalf of Coalition for a Diverse Harvard, First Generation Harvard Alumni, Fuerza Latina of Harvard, Harvard Asian American Brotherhood, Harvard Islamic Society, Harvard Japan Society, Harvard

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Korean Association, Harvard Latino Alumni Alliance, Harvard Minority Association of Pre−Medical Students, Harvard Phillips Brooks House Association, Harvard South Asian Association, Harvard University Muslim Alumni, Harvard Vietnamese Association, Harvard−Radcliffe Asian American Association, Harvard−Radcliffe Asian American Women's Association, Harvard−Radcliffe Black Students Association, Harvard−Radcliffe Chinese Students Association, Kuumba Singers of Harvard College, Native American Alumni of Harvard University, Native Americans At Harvard College, Task Force on Asian and Pacific American Studies at Harvard College (Thayer, Kenneth) (Entered: 07/30/2018)
457 MOTION for Leave to Appear Pro Hac Vice for admission of Sherrilyn A. Ifill, Janai S. Nelson, Samuel Spital, Jin Hee Lee, Rachel M. Kleinman, Michaele N. Turnage Young, Jennifer A. Holmes, and Cara McClellan by Coalition for a Diverse Harvard, First Generation Harvard Alumni, Fuerza Latina of Harvard, Harvard Asian American Brotherhood, Harvard Islamic Society, Harvard Japan Society, Harvard Korean Association, Harvard Latino Alumni Alliance, Harvard Minority Association of Pre−Medical Students, Harvard Phillips Brooks House Association, Harvard South Asian Association, Harvard University Muslim Alumni, Harvard Vietnamese Association, Harvard−Radcliffe Asian American Association, Harvard−Radcliffe Asian American Women's Association, Harvard−Radcliffe Black Students Association, Harvard−Radcliffe Chinese Students Association, Kuumba Singers of Harvard College, Native American Alumni of Harvard University, Native Americans At Harvard College, Task Force on Asian and Pacific American Studies at Harvard College. (Attachments: # 1 Certification of Attorney Ifill, # 2 Certification of Attorney Nelson, # 3 Certification of Attorney Spital, # 4 Certification of Attorney Lee, # 5 Certification of Attorney Kleinman, # 6 Certification of Attorney Turnage Young, # 7 Certification of Attorney Holmes, # 8 Certification of Attorney McClellan)(Thayer, Kenneth) (Entered: 07/30/2018)
458 NOTICE of Appearance by Kathryn Rebecca Cook on behalf of Coalition for a Diverse Harvard, First Generation Harvard Alumni, Fuerza Latina of Harvard, Harvard Asian American Brotherhood, Harvard Islamic Society, Harvard Japan Society, Harvard Korean Association, Harvard Latino Alumni Alliance, Harvard Minority Association of Pre−Medical Students, Harvard Phillips Brooks House Association, Harvard South Asian Association, Harvard University Muslim Alumni, Harvard Vietnamese Association, Harvard−Radcliffe Asian American Association, Harvard−Radcliffe Asian American Women's Association, Harvard−Radcliffe Black Students Association, Harvard−Radcliffe Chinese Students Association, Kuumba Singers of Harvard College, Native American Alumni of Harvard University, Native Americans At Harvard College, Task Force on Asian and Pacific American Studies at Harvard College (Cook, Kathryn) (Entered: 07/30/2018)
459 MOTION for Leave to Appear Pro Hac Vice for admission of Gordon M. Fauth, Jr. and Lee Cheng Filing fee: $ 200, receipt number 0101−7252337 by Asian American Legal Foundation, Asian American Coalition for Education. (Attachments: # 1 Exhibit Cheng Certification, # 2 Exhibit Fauth Certification, # 3 Text of Proposed Order)(Randazza, Marc) (Entered: 07/30/2018)
460 AMICUS BRIEF filed by Asian American Coalition for Education, Asian American Legal Foundation . (Randazza, Marc) (Entered: 07/30/2018)
461 MOTION for Leave to File Brief of Amici Curiae 460 Out of Time by Asian American Coalition for Education, Asian American Legal Foundation. (Attachments: # 1 Text of Proposed Order)(Randazza, Marc) (Entered: 07/30/2018)
462 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 459 Motion for Leave to Appear Pro Hac Vice Added Gordon M. Fauth Jr. and Lee Cheng. Pursuant to Local Rule 83.5.3, local counsel shall also file an appearance in this matter. Further, local counsel shall review all filings and shall personally appear in Court for any hearings or conferences, unless expressly excused by the Court for good cause. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. (McDonagh, Christina) (Entered: 07/31/2018)

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463 NOTICE OF ATTORNEY PAYMENT OF FEES as to 457 MOTION for Leave to Appear Pro Hac Vice for admission of Sherrilyn A. Ifill, Janai S. Nelson, Samuel Spital, Jin Hee Lee, Rachel M. Kleinman, Michaele N. Turnage Young, Jennifer A. Holmes, and Cara McClellan by Amicus Parties Coalition for a Diverse Harvard, First Generation Harvard Alumni, Fuerza Latina of Harvard, Harvard Asian American Brotherhood, Harvard Islamic Society, Harvard Japan Society, Harvard Korean Association, Harvard Latino Alumni Alliance, Harvard Minority Association of Pre−Medical Students, Harvard Phillips Brooks House Association, Harvard South Asian Association, Harvard University Muslim Alumni, Harvard Vietnamese Association, Harvard−Radcliffe Asian American Association, Harvard−Radcliffe Asian American Women's Association, Harvard−Radcliffe Black Students Association, Harvard−Radcliffe Chinese Students Association, Kuumba Singers of Harvard College, Native American Alumni of Harvard University, Native Americans At Harvard College, Task Force on Asian and Pacific American Studies at Harvard College. Filing fee $ 400, receipt number 0101−7253250. Payment Type : PRO HAC VICE. (Thayer, Kenneth) (Entered: 07/31/2018)
464 NOTICE OF ATTORNEY PAYMENT OF FEES by Amicus Parties Coalition for a Diverse Harvard, First Generation Harvard Alumni, Fuerza Latina of Harvard, Harvard Asian American Brotherhood, Harvard Islamic Society, Harvard Japan Society, Harvard Korean Association, Harvard Latino Alumni Alliance, Harvard Minority Association of Pre−Medical Students, Harvard Phillips Brooks House Association, Harvard South Asian Association, Harvard University Muslim Alumni, Harvard Vietnamese Association, Harvard−Radcliffe Asian American Association, Harvard−Radcliffe Asian American Women's Association, Harvard−Radcliffe Black Students Association, Harvard−Radcliffe Chinese Students Association, Kuumba Singers of Harvard College, Native American Alumni of Harvard University, Native Americans At Harvard College, Task Force on Asian and Pacific American Studies at Harvard College. Filing fee $ 400, receipt number 0101−7253315. Payment Type : PRO HAC VICE. (Thayer, Kenneth) (Entered: 07/31/2018)
465 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 455 Motion for Leave to File Document ; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (Folan, Karen) (Entered: 07/31/2018)
466 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 461 Motion for Leave to File Document ; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (Folan, Karen) (Entered: 07/31/2018)
467 AMICUS BRIEF filed by Asian American Coalition for Education, Asian American Legal Foundation . (Randazza, Marc) (Entered: 07/31/2018)
468 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 457 Motion for Leave to Appear Pro Hac Vice Added Sherrilyn A. Ifill, Janai S. Nelson, Samuel Spital, Jin Hee Lee, Rachel M. Kleinman, Michaele N. Turnage Young, Jennifer A. Holmes, and Cara McClellan. Pursuant to Local Rule 83.5.3, local counsel shall also file an appearance in this matter. Further, local counsel shall review all filings and shall personally appear in Court for any hearings or conferences, unless expressly excused by the Court for good cause. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. (McDonagh, Christina) (Entered: 07/31/2018)
469 NOTICE by Asian American Legal Foundation NOTICE OF APPEARANCE OF LEE C. CHENG AS COUNSEL FOR AMICUS CURIAE THE ASIAN AMERICAN LEGAL FOUNDATION (Fauth, Gordon) (Entered: 08/01/2018)
470 NOTICE of Appearance by Gordon M. Fauth, Jr on behalf of Asian American Coalition for Education, Asian American Legal Foundation (Fauth, Gordon) (Entered: 08/01/2018)

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471 AMICUS BRIEF filed by Coalition for a Diverse Harvard, First Generation Harvard Alumni, Fuerza Latina of Harvard, Harvard Asian American Brotherhood, Harvard Islamic Society, Harvard Japan Society, Harvard Korean Association, Harvard Latino Alumni Alliance, Harvard Minority Association of Pre−Medical Students, Harvard Phillips Brooks House Association, Harvard South Asian Association, Harvard University Muslim Alumni, Harvard Vietnamese Association, Harvard−Radcliffe Asian American Association, Harvard−Radcliffe Asian American Women's Association, Harvard−Radcliffe Black Students Association, Harvard−Radcliffe Chinese Students Association, Kuumba Singers of Harvard College, Native American Alumni of Harvard University, Native Americans At Harvard College, Task Force on Asian and Pacific American Studies at Harvard College in Support of Defendants' Motion for Summary Judgment. (Attachments: # 1 Exhibit 2 Declaration, # 2 Exhibit 3 Declaration, # 3 Exhibit 4 Declaration, # 4 Exhibit 5 Declaration, # 5 Exhibit 6 Declaration, # 6 Exhibit 7 Declaration, # 7 Exhibit 8 Declaration, # 8 Exhibit 9 Declaration, # 9 Exhibit 10 Declaration, # 10 Exhibit 11 Declaration, # 11 Exhibit 12 Declaration, # 12 Exhibit 13 Declaration, # 13 Exhibit 14 Declaration, # 14 Exhibit 15 Declaration, # 15 Exhibit 16 Declaration, # 16 Exhibit 17 Declaration)(Thayer, Kenneth) (Entered: 08/03/2018)
472 MOTION for Leave to Appear Pro Hac Vice for admission of Brenda Shum Filing fee: $ 100, receipt number 0101−7261415 by M. B., K. C., Sarah Cole, Y. D., G. E., A. G., I. G., R. H., J. L., Fadhal Moore, Arjini Kumari Nawal, R. S., Itzel Vasquez−Rodriguez, Keyanna Wigglesworth. (Attachments: # 1 Shum Declaration, # 2 Text of Proposed Order Text of Proposed Order)(Cregor, Matthew) (Entered: 08/06/2018)
473 MOTION for Leave to Appear Pro Hac Vice for admission of Genevieve Bonadies Torres Filing fee: $ 100, receipt number 0101−7261863 by M. B., K. C., Sarah Cole, Y. D., G. E., A. G., I. G., R. H., J. L., Fadhal Moore, Arjini Kumari Nawal, R. S., Itzel Vasquez−Rodriguez, Keyanna Wigglesworth. (Attachments: # 1 Certificate of Good Standing, # 2 Declaration, # 3 Text of Proposed Order Text of Proposed Order)(Cregor, Matthew) (Entered: 08/06/2018)
474 MOTION for Leave to Appear Pro Hac Vice for admission of Emma Dinan Filing fee: $ 100, receipt number 0101−7261880 by M. B., K. C., Sarah Cole, Y. D., G. E., A. G., I. G., J. L., Fadhal Moore, Arjini Kumari Nawal, R. S., Itzel Vasquez−Rodriguez, Keyanna Wigglesworth. (Attachments: # 1 Declaration, # 2 Text of Proposed Order Text of Proposed Order)(Cregor, Matthew) (Entered: 08/06/2018)
475 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 472 Motion for Leave to Appear Pro Hac Vice Added Brenda Shum. Pursuant to Local Rule 83.5.3, local counsel shall also file an appearance in this matter. Further, local counsel shall review all filings and shall personally appear in Court for all hearings or conferences, unless expressly excused by the Court for good cause. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. (McDonagh, Christina) (Entered: 08/06/2018)
476 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 473 Motion for Leave to Appear Pro Hac Vice Added Genevieve Bonadies Torres. Pursuant to Local Rule 83.5.3, local counsel shall also file an appearance in this matter. Further, local counsel shall review all filings and shall personally appear in Court for all hearings or conferences, unless expressly excused by the Court for good cause. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. (McDonagh, Christina) (Entered: 08/06/2018)
477 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 474 Motion for Leave to Appear Pro Hac Vice Added Emma Katherine Dinan. Pursuant to Local Rule 83.5.3, local counsel shall also file an appearance in this matter. Further, local counsel shall review all filings and shall personally appear in Court for all hearings or conferences, unless expressly excused by the Court for good cause.

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Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. (McDonagh, Christina) (Entered: 08/06/2018)
478 JOINT STATEMENT of counsel Regarding the Submission of Trial Briefs. (Mortara, Adam) (Entered: 08/13/2018)
479 MEMORANDUM in Opposition re 455 MOTION for Leave to File to Participate as Amici Curiae filed by Students for Fair Admissions, Inc.. (Attachments: # 1 Exhibit 1)(Hughes, John) (Entered: 08/13/2018)
480 MOTION for Leave to File Reply by Coalition for a Diverse Harvard, First Generation Harvard Alumni, Fuerza Latina of Harvard, Harvard Asian American Brotherhood, Harvard Islamic Society, Harvard Japan Society, Harvard Korean Association, Harvard Latino Alumni Alliance, Harvard Minority Association of Pre−Medical Students, Harvard Phillips Brooks House Association, Harvard South Asian Association, Harvard University Muslim Alumni, Harvard Vietnamese Association, Harvard−Radcliffe Asian American Association, Harvard−Radcliffe Asian American Women's Association, Harvard−Radcliffe Black Students Association, Harvard−Radcliffe Chinese Students Association, Kuumba Singers of Harvard College, Native American Alumni of Harvard University, Native Americans At Harvard College, Task Force on Asian and Pacific American Studies at Harvard College. (Attachments: # 1 Exhibit 1 − Proposed Reply to Students for Fair Admissions, Inc.'s Memorandum in Opposition to Amici Organizations' Motion to Participate as Amici Curiae)(Kleinman, Rachel) (Entered: 08/16/2018)
481 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 480 Motion for Leave to File Document ; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (Folan, Karen) (Entered: 08/16/2018)
482 REPLY to Response to 455 MOTION for Leave to File to Participate as Amici Curiae filed by Coalition for a Diverse Harvard, First Generation Harvard Alumni, Fuerza Latina of Harvard, Harvard Asian American Brotherhood, Harvard Islamic Society, Harvard Japan Society, Harvard Korean Association, Harvard Latino Alumni Alliance, Harvard Minority Association of Pre−Medical Students, Harvard Phillips Brooks House Association, Harvard South Asian Association, Harvard University Muslim Alumni, Harvard Vietnamese Association, Harvard−Radcliffe Asian American Association, Harvard−Radcliffe Asian American Women's Association, Harvard−Radcliffe Black Students Association, Harvard−Radcliffe Chinese Students Association, Kuumba Singers of Harvard College, Native American Alumni of Harvard University, Native Americans At Harvard College, Task Force on Asian and Pacific American Studies at Harvard College. (Kleinman, Rachel) (Entered: 08/16/2018)
483 MOTION to Seal Certain Information Filed in Connection with Harvard's Reply in Support of its Motion for Summary Judgment by President and Fellows of Harvard College.(Ellsworth, Felicia) (Entered: 08/27/2018)
484 REPLY to Response to 417 MOTION for Summary Judgment filed by President and Fellows of Harvard College. (Waxman, Seth) (Entered: 08/27/2018)
485 Assented to MOTION to Seal by Students for Fair Admissions, Inc..(Strawbridge, Patrick) (Entered: 08/28/2018)
486 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 483 Motion to Seal (Folan, Karen) (Entered: 08/28/2018)
487 DECLARATION of Felicia H. Ellsworth ISO Defendant's Reply ISO Its Motion for Summary Judgment by President and Fellows of Harvard College. (Attachments: # 1 Exhibit 159, # 2 Exhibit 160, # 3 Exhibit 161, # 4 Exhibit 162, # 5 Exhibit 163, # 6 Exhibit 164, # 7 Exhibit 165, # 8 Exhibit 166)(Ellsworth, Felicia) (Additional attachment(s) added on 8/28/2018: # 9 Unredacted Memorandum, # 10 Exhibit 160 Unredacted Version (FILED UNDER SEAL), # 11 Exhibit 161 Unredacted Version

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(FILED UNDER SEAL), # 12 Exhibit 162 Unredacted Version (FILED UNDER SEAL), # 13 Exhibit 163 Unredacted Version (FILED UNDER SEAL), # 14 Exhibit 164 Unredacted Version (FILED UNDER SEAL), # 15 Exhibit 165 Unredacted Version (FILED UNDER SEAL)) (McDonagh, Christina). (Entered: 08/28/2018)
488 NOTICE of Appearance filed in error. Please see docket entry ECF 489 (Entered: 08/29/2018)
489 NOTICE of Appearance by Richard J. Rosensweig on behalf of Social Scientists and Scholars (Attachments: # 1 Exhibit)(Rosensweig, Richard) (Entered: 08/29/2018)
490 Assented to MOTION for Leave to Appear Pro Hac Vice for admission of Sarah E. Harrington Filing fee: $ 100, receipt number 0101−7295782 by Social Scientists and Scholars. (Attachments: # 1 Exhibit Certificate in Support of Pro Hac Vice Admission, # 2 Exhibit List of Amici Curiae)(Rosensweig, Richard) (Entered: 08/29/2018)
491 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 490 Motion for Leave to Appear Pro Hac Vice Added Sarah E. Harrington. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. Pursuant to Local Rule 83.5.3, local counsel shall also file an appearance in this matter. Further, local counsel shall review all filings and shall personally appear in Court for any hearings or conferences, unless expressly excused by the Court for good cause. (McDonagh, Christina) (Entered: 08/29/2018)
492 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 485 Motion to Seal (Folan, Karen) (Entered: 08/29/2018)
493 MOTION for Leave to Appear Pro Hac Vice for admission of Earl A. Kirkland III Filing fee: $ 100, receipt number 0101−7296869 by Coalition for a Diverse Harvard, First Generation Harvard Alumni, Fuerza Latina of Harvard, Harvard Asian American Brotherhood, Harvard Islamic Society, Harvard Japan Society, Harvard Korean Association, Harvard Latino Alumni Alliance, Harvard Minority Association of Pre−Medical Students, Harvard Phillips Brooks House Association, Harvard South Asian Association, Harvard University Muslim Alumni, Harvard Vietnamese Association, Harvard−Radcliffe Asian American Association, Harvard−Radcliffe Asian American Women's Association, Harvard−Radcliffe Black Students Association, Harvard−Radcliffe Chinese Students Association, Kuumba Singers of Harvard College, Native American Alumni of Harvard University, Native Americans At Harvard College, Task Force on Asian and Pacific American Studies at Harvard College. (Attachments: # 1 Exhibit Certification of Attorney Kirkland)(Thayer, Kenneth) (Entered: 08/29/2018)
494 AMICUS BRIEF filed by Social Scientists and Scholars in Support of Defendant. (Attachments: # 1 Appendix List of Amici)(Rosensweig, Richard) (Entered: 08/30/2018)
495 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 493 Motion for Leave to Appear Pro Hac Vice Added Earl A. Kirkland III. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. Pursuant to Local Rule 83.5.3, local counsel shall also file an appearance in this matter. Further, local counsel shall review all filings and shall personally appear in Court for any hearings or conferences, unless expressly excused by the Court for good cause. (McDonagh, Christina) (Entered: 08/30/2018)
496 Assented to MOTION to Seal Statement of Interest by United States.(Donnelly, Matthew) (Entered: 08/30/2018)
497 AMICUS BRIEF filed by United States in Opposition to Defendant's Motion for Summary Judgment 417 . (Attachments: # 1 Exhibit Fitzsimmons Dep., # 2 Exhibit Ortiz Dep., # 3 Exhibit Smith (2nd) Dep.)(Donnelly, Matthew) (Additional attachment(s) added on 8/31/2018: # 4 Unredacted Version of United States' Statement

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of Interest Opposition to Defendant's Motion for Summary Judgment) (McDonagh, Christina). (Entered: 08/30/2018)
498 NOTICE of Appearance by Derek Tam Ho on behalf of Amici Curiae Professors of Economics Susan Dynarski, et al., in Support of Defendant (Ho, Derek) (Entered: 08/30/2018)
499 AMICUS BRIEF filed by Amici Curiae Professors of Economics Susan Dynarski, et al., in Support of Defendant . (Ho, Derek) (Entered: 08/30/2018)
500 NOTICE of Appearance by Madeleine K. Rodriguez on behalf of Amici Curiae the Asian American Legal Defense and Education Fund, et al. (Rodriguez, Madeleine) (Entered: 08/30/2018)
501 MOTION for Leave to Appear Pro Hac Vice for admission of Kenneth Kimerling Filing fee: $ 100, receipt number 0101−7297870 by Amici Curiae the Asian American Legal Defense and Education Fund, et al.. (Attachments: # 1 Affidavit of Kenneth Kimerling)(Rodriguez, Madeleine) (Entered: 08/30/2018)
502 AMICUS BRIEF filed by Amici Curiae the Asian American Legal Defense and Education Fund, et al. in Opposition to Plaintiff's Motion for Summary Judgment. (Rodriguez, Madeleine) (Entered: 08/30/2018)
503 MOTION for Leave to File to Participate as Amici Curiae by Harvard Black Alumni Society, Harvard Asian American Alumni Alliance, Association of Black Harvard Women, 21 Colorful Crimson. (Attachments: # 1 Exhibit Declaration, # 2 Exhibit Declaration, # 3 Exhibit Declaration, # 4 Exhibit Declaration)(Thayer, Kenneth) (Entered: 08/30/2018)
504 AMICUS BRIEF filed by 21 Colorful Crimson, Association of Black Harvard Women, Coalition for a Diverse Harvard, First Generation Harvard Alumni, Fuerza Latina of Harvard, Harvard Asian American Alumni Alliance, Harvard Asian American Brotherhood, Harvard Black Alumni Society, Harvard Islamic Society, Harvard Japan Society, Harvard Korean Association, Harvard Latino Alumni Alliance, Harvard Minority Association of Pre−Medical Students, Harvard Phillips Brooks House Association, Harvard South Asian Association, Harvard University Muslim Alumni, Harvard Vietnamese Association, Harvard−Radcliffe Asian American Association, Harvard−Radcliffe Asian American Women's Association, Harvard−Radcliffe Black Students Association, Harvard−Radcliffe Chinese Students Association, Kuumba Singers of Harvard College, Native American Alumni of Harvard University, Native Americans At Harvard College, Task Force on Asian and Pacific American Studies at Harvard College in Opposition to Plaintiff's Motion for Summary Judgment. (Thayer, Kenneth) (Entered: 08/30/2018)
505 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 496 Motion to Seal (Folan, Karen) (Entered: 08/30/2018)
506 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 501 Motion for Leave to Appear Pro Hac Vice Added Kenneth Kimerling. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. Pursuant to Local Rule 83.5.3, local counsel shall also file an appearance in this matter. Further, local counsel shall review all filings and shall personally appear in Court for any hearings or conferences, unless expressly excused by the Court for good cause. (McDonagh, Christina) (Entered: 08/30/2018)
507 MOTION for Leave to Appear Pro Hac Vice for admission of Sarah Hinger Filing fee: $ 100, receipt number 0101−7298403 by American Civil Liberties Union, American Civil Liberties Union Foundation of Massachusetts, Inc.. (Attachments: # 1 Affidavit Affidavit of Sarah Hinger in Support of Motion to Appear Pro Hac Vice)(Segal, Matthew) (Entered: 08/30/2018)
508 BRIEF by American Civil Liberties Union, American Civil Liberties Union Foundation of Massachusetts, Inc. in Opposition to Plaintiffs Motion For Summary Judgment. (Segal, Matthew) (Entered: 08/30/2018)

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08/31/2018 08/31/2018
08/31/2018

509 MEMORANDUM in Opposition re 412 MOTION for Summary Judgment filed by M. B., K. C., Sarah Cole, Y. D., G. E., A. G., I. G., R. H., J. L., Fadhal Moore, Arjini Kumari Nawal, R. S., Itzel Vasquez−Rodriguez, Keyanna Wigglesworth. (Attachments: # 1 Exhibit Student Record)(Culleen, Lawrence) (Entered: 08/30/2018)
510 REPLY to Response to 412 MOTION for Summary Judgment filed by Students for Fair Admissions, Inc.. (Consovoy, William) (Additional attachment(s) added on 8/31/2018: # 1 Unredacted Memorandum) (McDonagh, Christina). (Entered: 08/30/2018)
511 Counter Statement of Material Facts L.R. 56.1 re 412 MOTION for Summary Judgment filed by Students for Fair Admissions, Inc.. (Consovoy, William) (Additional attachment(s) added on 8/31/2018: # 1 Unredacted Response to Statement of Material Facts) (McDonagh, Christina). (Entered: 08/30/2018)
512 DECLARATION re 510 Reply to Response to Motion for Summary Judgment by Students for Fair Admissions, Inc.. (Attachments: # 1 Exhibit 286, # 2 Exhibit 287)(Consovoy, William) (Additional attachment(s) added on 8/31/2018: # 3 Exhibit 286 (Unredacted Version FILED UNDER SEAL), # 4 Exhibit 287 (UNREDACTED VERSION FILED UNDER SEAL)) (McDonagh, Christina). (Additional attachment(s) added on 8/31/2018: # 5 Unredacted Declaration of Michael Connolly) (McDonagh, Christina). (Entered: 08/30/2018)
513 NOTICE of Appearance by Douglass C. Lawrence on behalf of Southeastern Legal Foundation, Center for Equal Opportunity, Reason Foundation (Lawrence, Douglass) (Entered: 08/30/2018)
514 AMICUS BRIEF filed by Center for Equal Opportunity, Reason Foundation, Southeastern Legal Foundation in Opposition to Defendants Motion for Summary Judgment. (Lawrence, Douglass) (Entered: 08/30/2018)
515 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 507 Motion for Leave to Appear Pro Hac Vice Added Sarah Hinger. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. Pursuant to Local Rule 83.5.3, local counsel shall also file an appearance in this matter. Further, local counsel shall review all filings and shall personally appear in Court for any hearings or conferences, unless expressly excused by the Court for good cause. (McDonagh, Christina) (Entered: 08/31/2018)
516 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 503 Motion for Leave to File Document ; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (Folan, Karen) (Entered: 08/31/2018)
517 AMICUS BRIEF filed by 21 Colorful Crimson, Association of Black Harvard Women, Coalition for a Diverse Harvard, First Generation Harvard Alumni, Fuerza Latina of Harvard, Harvard Asian American Alumni Alliance, Harvard Asian American Brotherhood, Harvard Black Alumni Society, Harvard Islamic Society, Harvard Japan Society, Harvard Korean Association, Harvard Latino Alumni Alliance, Harvard Minority Association of Pre−Medical Students, Harvard Phillips Brooks House Association, Harvard South Asian Association, Harvard University Muslim Alumni, Harvard Vietnamese Association, Harvard−Radcliffe Asian American Association, Harvard−Radcliffe Asian American Women's Association, Harvard−Radcliffe Black Students Association, Harvard−Radcliffe Chinese Students Association, Kuumba Singers of Harvard College, Native American Alumni of Harvard University, Native Americans At Harvard College, Task Force on Asian and Pacific American Studies at Harvard College in Opposition to Plaintiff's Motion for Summary Judgment. (Attachments: # 1 Exhibit Declaration, # 2 Exhibit Declaration, # 3 Exhibit Declaration, # 4 Exhibit Declaration)(Thayer, Kenneth) (Entered: 08/31/2018)
518 MOTION Participate in Trial Proceedings by M. B., K. C., Sarah Cole, Y. D., G. E., A. G., I. G., R. H., J. L., Fadhal Moore, Arjini Kumari Nawal, R. S., Itzel

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Vasquez−Rodriguez, Keyanna Wigglesworth.(Culleen, Lawrence) (Entered: 08/31/2018)
519 Amicus Curiae APPEARANCE entered by Sarah E. Harrington on behalf of Social Scientists and Scholars. (Attachments: # 1 Exhibit Exhibit A: List of Amici)(Harrington, Sarah) (Entered: 09/04/2018)
520 NOTICE of Appearance by Sherrilyn A. Ifill on behalf of 21 Colorful Crimson, Association of Black Harvard Women, Coalition for a Diverse Harvard, First Generation Harvard Alumni, Fuerza Latina of Harvard, Harvard Asian American Alumni Alliance, Harvard Asian American Brotherhood, Harvard Black Alumni Society, Harvard Islamic Society, Harvard Japan Society, Harvard Korean Association, Harvard Latino Alumni Alliance, Harvard Minority Association of Pre−Medical Students, Harvard Phillips Brooks House Association, Harvard South Asian Association, Harvard University Muslim Alumni, Harvard Vietnamese Association, Harvard−Radcliffe Asian American Association, Harvard−Radcliffe Asian American Women's Association, Harvard−Radcliffe Black Students Association, Harvard−Radcliffe Chinese Students Association, Kuumba Singers of Harvard College, Native American Alumni of Harvard University, Native Americans At Harvard College, Task Force on Asian and Pacific American Studies at Harvard College (Ifill, Sherrilyn) (Entered: 09/04/2018)
521 NOTICE of Appearance by Samuel Spital on behalf of 21 Colorful Crimson, Association of Black Harvard Women, Coalition for a Diverse Harvard, First Generation Harvard Alumni, Fuerza Latina of Harvard, Harvard Asian American Alumni Alliance, Harvard Asian American Brotherhood, Harvard Black Alumni Society, Harvard Islamic Society, Harvard Japan Society, Harvard Korean Association, Harvard Latino Alumni Alliance, Harvard Minority Association of Pre−Medical Students, Harvard Phillips Brooks House Association, Harvard South Asian Association, Harvard University Muslim Alumni, Harvard Vietnamese Association, Harvard−Radcliffe Asian American Association, Harvard−Radcliffe Asian American Women's Association, Harvard−Radcliffe Black Students Association, Harvard−Radcliffe Chinese Students Association, Kuumba Singers of Harvard College, Native American Alumni of Harvard University, Native Americans At Harvard College, Task Force on Asian and Pacific American Studies at Harvard College (Spital, Samuel) (Entered: 09/04/2018)
522 NOTICE of Appearance by Jin Hee Lee on behalf of 21 Colorful Crimson, Association of Black Harvard Women, Coalition for a Diverse Harvard, First Generation Harvard Alumni, Fuerza Latina of Harvard, Harvard Asian American Alumni Alliance, Harvard Asian American Brotherhood, Harvard Black Alumni Society, Harvard Islamic Society, Harvard Japan Society, Harvard Korean Association, Harvard Latino Alumni Alliance, Harvard Minority Association of Pre−Medical Students, Harvard Phillips Brooks House Association, Harvard South Asian Association, Harvard University Muslim Alumni, Harvard Vietnamese Association, Harvard−Radcliffe Asian American Association, Harvard−Radcliffe Asian American Women's Association, Harvard−Radcliffe Black Students Association, Harvard−Radcliffe Chinese Students Association, Kuumba Singers of Harvard College, Native American Alumni of Harvard University, Native Americans At Harvard College, Task Force on Asian and Pacific American Studies at Harvard College (Lee, Jin) (Entered: 09/04/2018)
523 NOTICE of Appearance by Rachel M. Kleinman on behalf of 21 Colorful Crimson, Association of Black Harvard Women, Coalition for a Diverse Harvard, First Generation Harvard Alumni, Fuerza Latina of Harvard, Harvard Asian American Alumni Alliance, Harvard Asian American Brotherhood, Harvard Black Alumni Society, Harvard Islamic Society, Harvard Japan Society, Harvard Korean Association, Harvard Latino Alumni Alliance, Harvard Minority Association of Pre−Medical Students, Harvard Phillips Brooks House Association, Harvard South Asian Association, Harvard University Muslim Alumni, Harvard Vietnamese Association, Harvard−Radcliffe Asian American Association, Harvard−Radcliffe Asian American Women's Association, Harvard−Radcliffe Black Students Association, Harvard−Radcliffe Chinese Students Association, Kuumba Singers of Harvard College, Native American Alumni of Harvard University, Native Americans At Harvard College, Task Force on Asian and Pacific American Studies at Harvard College (Kleinman, Rachel) (Entered: 09/04/2018)

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524 NOTICE of Appearance by Michaele N. Turnage Young on behalf of 21 Colorful Crimson, Association of Black Harvard Women, Coalition for a Diverse Harvard, First Generation Harvard Alumni, Fuerza Latina of Harvard, Harvard Asian American Alumni Alliance, Harvard Asian American Brotherhood, Harvard Black Alumni Society, Harvard Islamic Society, Harvard Japan Society, Harvard Korean Association, Harvard Latino Alumni Alliance, Harvard Minority Association of Pre−Medical Students, Harvard Phillips Brooks House Association, Harvard South Asian Association, Harvard University Muslim Alumni, Harvard Vietnamese Association, Harvard−Radcliffe Asian American Association, Harvard−Radcliffe Asian American Women's Association, Harvard−Radcliffe Black Students Association, Harvard−Radcliffe Chinese Students Association, Kuumba Singers of Harvard College, Native American Alumni of Harvard University, Native Americans At Harvard College, Task Force on Asian and Pacific American Studies at Harvard College (Turnage Young, Michaele) (Entered: 09/04/2018)
525 NOTICE of Appearance by Jennifer A. Holmes on behalf of 21 Colorful Crimson, Association of Black Harvard Women, Coalition for a Diverse Harvard, First Generation Harvard Alumni, Fuerza Latina of Harvard, Harvard Asian American Alumni Alliance, Harvard Asian American Brotherhood, Harvard Black Alumni Society, Harvard Islamic Society, Harvard Japan Society, Harvard Korean Association, Harvard Latino Alumni Alliance, Harvard Minority Association of Pre−Medical Students, Harvard Phillips Brooks House Association, Harvard South Asian Association, Harvard University Muslim Alumni, Harvard Vietnamese Association, Harvard−Radcliffe Asian American Association, Harvard−Radcliffe Asian American Women's Association, Harvard−Radcliffe Black Students Association, Harvard−Radcliffe Chinese Students Association, Kuumba Singers of Harvard College, Native American Alumni of Harvard University, Native Americans At Harvard College, Task Force on Asian and Pacific American Studies at Harvard College (Holmes, Jennifer) (Entered: 09/04/2018)
526 NOTICE of Appearance by Cara McClellan on behalf of 21 Colorful Crimson, Association of Black Harvard Women, Coalition for a Diverse Harvard, First Generation Harvard Alumni, Fuerza Latina of Harvard, Harvard Asian American Alumni Alliance, Harvard Asian American Brotherhood, Harvard Black Alumni Society, Harvard Islamic Society, Harvard Japan Society, Harvard Korean Association, Harvard Latino Alumni Alliance, Harvard Minority Association of Pre−Medical Students, Harvard Phillips Brooks House Association, Harvard South Asian Association, Harvard University Muslim Alumni, Harvard Vietnamese Association, Harvard−Radcliffe Asian American Association, Harvard−Radcliffe Asian American Women's Association, Harvard−Radcliffe Black Students Association, Harvard−Radcliffe Chinese Students Association, Kuumba Singers of Harvard College, Native American Alumni of Harvard University, Native Americans At Harvard College, Task Force on Asian and Pacific American Studies at Harvard College (McClellan, Cara) (Entered: 09/04/2018)
527 MOTION for Leave to File Amended Amicus Brief by Amici Curiae Professors of Economics Susan Dynarski, et al., in Support of Defendant. (Attachments: # 1 Exhibit A − Proposed Amended Brief)(Ho, Derek) (Entered: 09/05/2018)
528 MOTION for Leave to Appear Pro Hac Vice for admission of Meg E. Fasulo, Katherine L.I. Hacker, J. Scott McBride, and Krista J. Perry Filing fee: $ 400, receipt number 0101−7305513 by Students for Fair Admissions, Inc.. (Attachments: # 1 Fasulo Certification, # 2 Hacker Certificaton, # 3 McBride Certification, # 4 Perry Certification, # 5 Text of Proposed Order)(Strawbridge, Patrick) (Entered: 09/05/2018)
529 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 528 Motion for Leave to Appear Pro Hac Vice Added J. Scott McBride, Katherine L.I. Hacker, Meg E. Fasulo, and Krista J. Perry. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. Pursuant to Local Rule 83.5.3, local counsel shall also file an appearance in this matter. Further, local counsel shall review all filings and shall personally appear in Court for any hearings or conferences, unless expressly excused by the Court for good cause. (McDonagh, Christina) (Entered: 09/06/2018)

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530 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 527 Motion for Leave to File Document ; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (Folan, Karen) (Entered: 09/06/2018)
531 AMENDED DOCUMENT by Amici Curiae Professors of Economics Susan Dynarski, et al., in Support of Defendant. Amendment to 499 Amicus brief filed Amended Brief of Professors of Economics As Amici Curiae In Support of Defendant. (Ho, Derek) (Entered: 09/06/2018)
532 MOTION To Participate In Trial by 21 Colorful Crimson, Association of Black Harvard Women, Coalition for a Diverse Harvard, First Generation Harvard Alumni, Fuerza Latina of Harvard, Harvard Asian American Alumni Alliance, Harvard Asian American Brotherhood, Harvard Black Alumni Society, Harvard Islamic Society, Harvard Japan Society, Harvard Korean Association, Harvard Latino Alumni Alliance, Harvard Minority Association of Pre−Medical Students, Harvard Phillips Brooks House Association, Harvard South Asian Association, Harvard University Muslim Alumni, Harvard Vietnamese Association, Harvard−Radcliffe Asian American Association, Harvard−Radcliffe Asian American Women's Association, Harvard−Radcliffe Black Students Association, Harvard−Radcliffe Chinese Students Association, Kuumba Singers of Harvard College, Native American Alumni of Harvard University, Native Americans At Harvard College, Task Force on Asian and Pacific American Studies at Harvard College.(Turnage Young, Michaele) (Entered: 09/07/2018)
533 NOTICE of Appearance by Janai S. Nelson on behalf of 21 Colorful Crimson, Association of Black Harvard Women, Coalition for a Diverse Harvard, First Generation Harvard Alumni, Fuerza Latina of Harvard, Harvard Asian American Alumni Alliance, Harvard Asian American Brotherhood, Harvard Black Alumni Society, Harvard Islamic Society, Harvard Japan Society, Harvard Korean Association, Harvard Latino Alumni Alliance, Harvard Minority Association of Pre−Medical Students, Harvard Phillips Brooks House Association, Harvard South Asian Association, Harvard University Muslim Alumni, Harvard Vietnamese Association, Harvard−Radcliffe Asian American Association, Harvard−Radcliffe Asian American Women's Association, Harvard−Radcliffe Black Students Association, Harvard−Radcliffe Chinese Students Association, Kuumba Singers of Harvard College, Native American Alumni of Harvard University, Native Americans At Harvard College, Task Force on Asian and Pacific American Studies at Harvard College (Nelson, Janai) (Entered: 09/10/2018)
534 NOTICE of Appearance by Earl A. Kirkland, III on behalf of 21 Colorful Crimson, Association of Black Harvard Women, Coalition for a Diverse Harvard, First Generation Harvard Alumni, Fuerza Latina of Harvard, Harvard Asian American Alumni Alliance, Harvard Asian American Brotherhood, Harvard Black Alumni Society, Harvard Islamic Society, Harvard Japan Society, Harvard Korean Association, Harvard Latino Alumni Alliance, Harvard Minority Association of Pre−Medical Students, Harvard Phillips Brooks House Association, Harvard South Asian Association, Harvard University Muslim Alumni, Harvard Vietnamese Association, Harvard−Radcliffe Asian American Association, Harvard−Radcliffe Asian American Women's Association, Harvard−Radcliffe Black Students Association, Harvard−Radcliffe Chinese Students Association, Kuumba Singers of Harvard College, Native American Alumni of Harvard University, Native Americans At Harvard College, Task Force on Asian and Pacific American Studies at Harvard College (Kirkland, Earl) (Entered: 09/10/2018)
535 NOTICE of Appearance by Sarah R. Frazier on behalf of President and Fellows of Harvard College (Frazier, Sarah) (Entered: 09/10/2018)
536 MOTION for Leave to Appear Pro Hac Vice for admission of Danielle Conley and Brittany Amadi Filing fee: $ 200, receipt number 0101−7312062 by President and Fellows of Harvard College. (Attachments: # 1 Conley Certification in Support of Motion, # 2 Amadi Certification in Support of Motion)(Ellsworth, Felicia) Modified on 9/11/2018 (McDonagh, Christina). (Entered: 09/10/2018)

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09/12/2018 09/13/2018 09/14/2018 09/14/2018 09/14/2018 09/14/2018 09/14/2018 09/17/2018
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537 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 536 Motion for Leave to Appear Pro Hac Vice Added Danielle Conley and Brittany Amadi. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. Pursuant to Local Rule 83.5.3, local counsel shall also file an appearance in this matter. Further, local counsel shall review all filings and shall personally appear in Court for any hearings or conferences, unless expressly excused by the Court for good cause. (McDonagh, Christina) (Entered: 09/11/2018)
538 NOTICE of Appearance by Ara B. Gershengorn on behalf of President and Fellows of Harvard College (Gershengorn, Ara) (Entered: 09/12/2018)
539 Assented to MOTION for Leave to Appear Pro Hac Vice for admission of John J. Park, Jr. Filing fee: $ 100, receipt number 0101−7318306 by Center for Equal Opportunity, Reason Foundation, Southeastern Legal Foundation. (Attachments: # 1 Affidavit of John J. Park, Jr.)(Lawrence, Douglass) (Entered: 09/13/2018)
540 Assented to MOTION to Seal Portions of Pre−Trial Motions by Students for Fair Admissions, Inc..(Strawbridge, Patrick) (Entered: 09/14/2018)
541 RESPONSE to Motion re 518 MOTION Participate in Trial Proceedings , 532 MOTION To Participate In Trial filed by President and Fellows of Harvard College. (Waxman, Seth) (Entered: 09/14/2018)
542 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 540 Motion to Seal (Folan, Karen) (Entered: 09/14/2018)
543 Opposition re 518 MOTION Participate in Trial Proceedings filed by Students for Fair Admissions, Inc.. (Hughes, John) (Entered: 09/14/2018)
544 Letter/request (non−motion) from Jahjah T. Jishbite. (McDonagh, Christina) (Entered: 09/17/2018)
545 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 539 Motion for Leave to Appear Pro Hac Vice Added John J. Park Jr.. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. Pursuant to Local Rule 83.5.3, local counsel shall also file an appearance in this matter. Further, local counsel shall review all filings and shall personally appear in Court for any hearings or conferences, unless expressly excused by the Court for good cause. (McDonagh, Christina) (Entered: 09/17/2018)
546 MOTION in Limine by Students for Fair Admissions, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Hughes, John) (Entered: 09/17/2018)
547 MOTION in Limine by President and Fellows of Harvard College.(Waxman, Seth) (Entered: 09/17/2018)
550 Opposition re 532 MOTION To Participate In Trial filed by Students for Fair Admissions, Inc.. (Hughes, John) (Entered: 09/21/2018)
551 Unopposed Motion for leave to File a Reply in regards to 518 MOTION Participate in Trial Proceedings filed by M. B., K. C., Sarah Cole, Y. D., G. E., A. G., I. G., R. H., J. L., Fadhal Moore, Arjini Kumari Nawal, R. S., Itzel Vasquez−Rodriguez, Keyanna Wigglesworth. (Attachments: # 1 Exhibit)(Culleen, Lawrence) Modified on 9/25/2018 (McDonagh, Christina). (Entered: 09/21/2018)
555 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 551 Motion for Leave to File Document ; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (Folan, Karen) (Entered: 09/26/2018)

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558 REPLY to Response to 518 MOTION Participate in Trial Proceedings filed by M. B., K. C., Sarah Cole, Y. D., G. E., A. G., I. G., R. H., J. L., Fadhal Moore, Arjini Kumari Nawal, R. S., Itzel Vasquez−Rodriguez, Keyanna Wigglesworth. (Culleen, Lawrence) (Entered: 09/26/2018)
559 MOTION for Leave to File Response to the United States' Statement of Interest by President and Fellows of Harvard College. (Attachments: # 1 Proposed Response)(Waxman, Seth) (Entered: 09/26/2018)
560 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 559 Motion for Leave to File Document ; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (Folan, Karen) (Entered: 09/27/2018)
561 Response by President and Fellows of Harvard College to 497 Amicus brief filed, by the United States. (Waxman, Seth) (Entered: 09/27/2018)
562 Assented to MOTION for Leave to File Reply by 21 Colorful Crimson, Association of Black Harvard Women, Coalition for a Diverse Harvard, First Generation Harvard Alumni, Fuerza Latina of Harvard, Harvard Asian American Alumni Alliance, Harvard Asian American Brotherhood, Harvard Black Alumni Society, Harvard Islamic Society, Harvard Japan Society, Harvard Korean Association, Harvard Latino Alumni Alliance, Harvard Minority Association of Pre−Medical Students, Harvard Phillips Brooks House Association, Harvard South Asian Association, Harvard University Muslim Alumni, Harvard Vietnamese Association, Harvard−Radcliffe Asian American Association, Harvard−Radcliffe Asian American Women's Association, Harvard−Radcliffe Black Students Association, Harvard−Radcliffe Chinese Students Association, Kuumba Singers of Harvard College, Native American Alumni of Harvard University, Native Americans At Harvard College, Task Force on Asian and Pacific American Studies at Harvard College. (Attachments: # 1 Exhibit Proposed Reply)(Holmes, Jennifer) (Entered: 09/27/2018)
563 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 562 Motion for Leave to File Document ; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (Folan, Karen) (Entered: 09/27/2018)
564 REPLY to Response to 532 MOTION To Participate In Trial filed by 21 Colorful Crimson, Association of Black Harvard Women, Coalition for a Diverse Harvard, First Generation Harvard Alumni, Fuerza Latina of Harvard, Harvard Asian American Alumni Alliance, Harvard Asian American Brotherhood, Harvard Black Alumni Society, Harvard Islamic Society, Harvard Japan Society, Harvard Korean Association, Harvard Latino Alumni Alliance, Harvard Minority Association of Pre−Medical Students, Harvard Phillips Brooks House Association, Harvard South Asian Association, Harvard University Muslim Alumni, Harvard Vietnamese Association, Harvard−Radcliffe Asian American Association, Harvard−Radcliffe Asian American Women's Association, Harvard−Radcliffe Black Students Association, Harvard−Radcliffe Chinese Students Association, Kuumba Singers of Harvard College, Native American Alumni of Harvard University, Native Americans At Harvard College, Task Force on Asian and Pacific American Studies at Harvard College. (Holmes, Jennifer) (Entered: 09/27/2018)
565 Consent MOTION to Seal by Students for Fair Admissions, Inc..(Strawbridge, Patrick) (Entered: 09/28/2018)
566 Judge Allison D. Burroughs: MEMORANDUM AND ORDER entered. Accordingly, the cross−motions for summary judgment [ECF Nos. 412 , 417 ] are denied without prejudice. Consistent with this order, the parties may renew their arguments at trial. SO ORDERED. (McDonagh, Christina) (Entered: 09/28/2018)
567 Judge Allison D. Burroughs: ELECTRONIC ORDER entered.

The Courts Summary Judgment Memorandum and Order ("Opinion") cites to several paragraphs in the parties submissions that were filed with redactions. The Court has concluded that two of these paragraphs must be filed without redactions. SFFA shall

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email the Court's docket clerk an updated version of its Statement of Material Fact [ECF No. 414 −2] with the redaction in 130 removed, and an updated version of its Counter Statement of Material Facts [ECF No. 452 ] with the redaction in its response to 73 removed.

The Court finds "good cause" to maintain under seal the remaining redacted statements cited by the Opinion, which consist primarily of individuals' names and other personally identifiable information. Bradford & Bigelow, Inc. v. Richardson, 109 F. Supp. 3d 445, 447 (D. Mass. 2015). The parties disagree about whether there is sufficient cause to maintain partial or complete sealing of approximately 100 exhibits and numerous statements in the parties' submissions. See [ECF No. 422 at 21−24]. Given that the court has not relied on these materials in its Opinion and some of this information may become public during trial, the Court will defer deciding the issues raised by the parties' memoranda on sealing [ECF Nos. 422 , 427 ] until the conclusion of trial.

09/28/2018 10/01/2018
10/01/2018 10/01/2018 10/02/2018 10/03/2018 10/03/2018

(McDonagh, Christina) (Entered: 09/28/2018)
568 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 565 Motion to Seal (Folan, Karen) (Entered: 09/28/2018)
569 Opposition re 547 MOTION in Limine filed by Students for Fair Admissions, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16)(Mortara, Adam) (Attachment 6 replaced on 10/1/2018) (McDonagh, Christina). (Additional attachment(s) added on 10/2/2018: # 17 Unredacted Memorandum in Opposition (FILED UNDER SEAL), # 18 Exhibit 4 (Filed Under Seal)) (McDonagh, Christina). (Entered: 10/01/2018)
570 PRETRIAL MEMORANDUM by Students for Fair Admissions, Inc.. (Attachments: # 1 Exhibit A1, # 2 Exhibit A2, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F)(Mortara, Adam) (Additional attachment(s) added on 10/2/2018: # 8 Exhibit A1 (Filed Under Seal)) (McDonagh, Christina). (Entered: 10/01/2018)
571 Opposition re 546 MOTION in Limine filed by President and Fellows of Harvard College. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10)(Waxman, Seth) (Entered: 10/01/2018)
572 ELECTRONIC NOTICE OF RESCHEDULING Final Pretrial Conference reset for 10/3/2018 09:00 AM in Courtroom 17 before Judge Allison D. Burroughs. NOTICE IS FOR TIME CHANGE ONLY.(Folan, Karen) (Entered: 10/02/2018)
573 Electronic Clerk's Notes for proceedings held before Judge Allison D. Burroughs: Final Pretrial Conference held on 10/3/2018. Colloquy re: pending motions, trial schedule and logistics. (Court Reporter: Joan Daly at joanmdaly62@gmail.com.)(Attorneys present: various) (Folan, Karen) (Entered: 10/03/2018)
574 Judge Allison D. Burroughs: ELECTRONIC ORDER entered.

As was more fully set forth during the October 3, 2018 pretrial conference, the parties motions in limine (MIL), see [ECF Nos. 546 , 547 ], are resolved as follows:

SFFAs MIL No. 1 which sought to preclude Harvard from calling Edward Blum as a witness is denied as moot, see [ECF No. 571 ].

SFFAs MIL No. 2 which sought to preclude evidence or argument regarding portions of application files relevant to personal ratings is denied with leave to renew or object at trial.

SFFAs MIL No. 3 concerning the expected testimony of Dean Khurana is resolved as follows: Dean Khurana was not noticed as an expert and, therefore, may not be called as an expert witness. He may, however, testify as a percipient witness and based on his personal knowledge.

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Harvards MIL No.1 to exclude evidence concerning its early twentieth−century discrimination against Jewish applicants is granted in part and denied in part. In the interests of developing a complete factual record, but also recognizing the somewhat attenuated relevance, the Court will allow a very limited presentation of this topic including through exhibits, stipulations and direct and cross examination.

Harvards MIL No. 2 to preclude evidence regarding Harvards invocation of the attorney−client privilege is denied with leave to renew or object at trial in recognition of the fact that there are proper and improper uses for the documents at issue.

10/03/2018 10/03/2018 10/05/2018 10/08/2018 10/10/2018
10/11/2018 10/12/2018 10/15/2018 10/16/2018 10/16/2018

(McDonagh, Christina) (Entered: 10/03/2018)
575 Judge Allison D. Burroughs: ORDER entered. MEMORANDUM AND ORDER(McDonagh, Christina) (Entered: 10/03/2018)
576 EXHIBIT 1 by Lawrence Crawford. (Attachments: # 1 Exhibit 2, # 2 Exhibit 3, # 3 Exhibit 4, # 4 Exhibit 5, # 5 Exhibit 6) *Note that the envelop of this filing states that it is being made as 2 of 2 but Clerk's Office never received envelop 1 of 2 so there is no motion to link this to on the docket*(McDonagh, Christina) (Entered: 10/05/2018)
578 AFFIDAVIT of Lawrence Crawford re 576 Exhibit, by Lawrence Crawford. (Attachments: # 1 Affidavit, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4) *Note this is envelop 1 of 2.(McDonagh, Christina) (Entered: 10/09/2018)
577 Request for Judicial Notice by Students for Fair Admissions, Inc.. (Attachments: # 1 Exhibit DX−13, # 2 Exhibit DX−40, # 3 Exhibit P500)(Mortara, Adam) (Entered: 10/08/2018)
579 NOTICE by 21 Colorful Crimson, Association of Black Harvard Women, Coalition for a Diverse Harvard, First Generation Harvard Alumni, Fuerza Latina of Harvard, Harvard Asian American Alumni Alliance, Harvard Asian American Brotherhood, Harvard Black Alumni Society, Harvard Islamic Society, Harvard Japan Society, Harvard Korean Association, Harvard Latino Alumni Alliance, Harvard Minority Association of Pre−Medical Students, Harvard Phillips Brooks House Association, Harvard South Asian Association, Harvard University Muslim Alumni, Harvard Vietnamese Association, Harvard−Radcliffe Asian American Association, Harvard−Radcliffe Asian American Women's Association, Harvard−Radcliffe Black Students Association, Harvard−Radcliffe Chinese Students Association, Kuumba Singers of Harvard College, Native American Alumni of Harvard University, Native Americans At Harvard College, Task Force on Asian and Pacific American Studies at Harvard College re 575 Memorandum & ORDER Regarding Witnesses and Opening Statement (Thayer, Kenneth) (Entered: 10/10/2018)
580 NOTICE of Appearance by Joseph J. Mueller on behalf of President and Fellows of Harvard College (Mueller, Joseph) (Entered: 10/11/2018)
581 NOTICE by M. B., K. C., Sarah Cole, Y. D., G. E., A. G., I. G., R. H., J. L., Fadhal Moore, Arjini Kumari Nawal, R. S., Itzel Vasquez−Rodriguez, Keyanna Wigglesworth re 575 Memorandum & ORDER REGARDING TRIAL WITNESSES, REQUEST FOR DATE CERTAIN FOR STUDENT TESTIMONY, AND NOTICE OF INTENT TO PRESENT ORAL OPENING STATEMENT (Culleen, Lawrence) (Entered: 10/12/2018)
585 Electronic Clerk's Notes for proceedings held before Judge Allison D. Burroughs: Bench Trial Day 1 held on 10/15/2018. Opening statements by the parties. Dean William Fitzsimmons sworn and testifies. (Court Reporter: Joan Daly at joanmdaly62@gmail.com.) (Folan, Karen) (Entered: 10/18/2018)
582 Transcript of Bench Trial − Day One held on October 15, 2018, before Judge Allison D. Burroughs. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Joan Daly at joanmdaly62@gmail.com Redaction Request due 11/6/2018. Redacted Transcript Deadline set for 11/16/2018. Release of Transcript Restriction set for 1/14/2019. (Scalfani, Deborah) (Entered: 10/16/2018)
583 Transcript of Bench Trial − Day Two held on October 16, 2018, before Judge Allison D. Burroughs. The Transcript may be purchased through the Court Reporter, viewed at

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10/16/2018
10/16/2018 10/17/2018 10/18/2018 10/19/2018 10/21/2018 10/22/2018 10/22/2018
10/23/2018 10/24/2018 10/24/2018 10/25/2018 10/25/2018 10/26/2018

the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Joan Daly at joanmdaly62@gmail.com Redaction Request due 11/6/2018. Redacted Transcript Deadline set for 11/16/2018. Release of Transcript Restriction set for 1/14/2019. (Scalfani, Deborah) (Entered: 10/16/2018)
584 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 10/16/2018)
586 Electronic Clerk's Notes for proceedings held before Judge Allison D. Burroughs: Bench Trial Day 2 held on 10/16/2018. Testimony of William Fitzsimmons resumes. (Court Reporter: Joan Daly at joanmdaly62@gmail.com.) (Folan, Karen) (Entered: 10/18/2018)
587 Electronic Clerk's Notes for proceedings held before Judge Allison D. Burroughs: Bench Trial Day 3 held on 10/17/2018. Testimony of William Fitzsimmons resumes. (Court Reporter: Joan Daly at joanmdaly62@gmail.com.) (Folan, Karen) (Entered: 10/18/2018)
589 Electronic Clerk's Notes for proceedings held before Judge Allison D. Burroughs: Bench Trial Day 4 held on 10/18/2018. Dean Fitzsimmons testimony continues. Christopher Looby and Erica Bever sworn and testify. (Court Reporter: Joan Daly at joanmdaly62@gmail.com.) (Folan, Karen) (Entered: 10/22/2018)
590 Electronic Clerk's Notes for proceedings held before Judge Allison D. Burroughs: Bench Trial Day 5 held on 10/19/2018. Erica Bever testimony continues. Erin Driver−Linn and Marlyn McGrath sworn and testify. (Court Reporter: Joan Daly at joanmdaly62@gmail.com.) (Folan, Karen) (Entered: 10/22/2018)
588 MOTION Admit Exhibit P9 by Students for Fair Admissions, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Mortara, Adam) (Entered: 10/21/2018)
591 Letter/request (non−motion) from Jahjah Al Mahdi. (McDonagh, Christina) (Entered: 10/22/2018)
592 Electronic Clerk's Notes for proceedings held before Judge Allison D. Burroughs: Bench Trial Day 6 held on 10/22/2018. Richard Kahlenberg sworn and testifies. Marlyn McGrath testimony resumes. Rakesh Khurana sworn and testifies. (Court Reporter: Joan Daly at joanmdaly62@gmail.com.) (Folan, Karen) (Entered: 10/23/2018)
594 Electronic Clerk's Notes for proceedings held before Judge Allison D. Burroughs: Bench Trial Day 7 held on 10/23/2018. Rakesh Khurana, Michael Smith, and Elizabeth Yong sworn and testify. (Court Reporter: Joan Daly at joanmdaly62@gmail.com.) (Folan, Karen) (Entered: 10/24/2018)
593 Judge Allison D. Burroughs: ELECTRONIC ORDER entered finding as moot 588 Motion to Admit Exhibit P9 (Folan, Karen) (Entered: 10/24/2018)
599 Electronic Clerk's Notes for proceedings held before Judge Allison D. Burroughs: Bench Trial Day 8 held on 10/24/2018. Mark Hansen, Roger Banks, Charlene Kim, and Tia Ray sworn and testify. (Court Reporter: Joan Daly at joanmdaly62@gmail.com.) (Folan, Karen) (Entered: 10/29/2018)
595 AFFIDAVIT of Lawrence Crawford re 591 Letter/request (non−motion) by Lawrence Crawford. (McDonagh, Christina) (Entered: 10/26/2018)
600 Electronic Clerk's Notes for proceedings held before Judge Allison D. Burroughs: Bench Trial Day 9 held on 10/25/2018. Peter Arcidiacono sworn and testifies. (Court Reporter: Joan Daly at joanmdaly62@gmail.com.) (Folan, Karen) (Entered: 10/29/2018)
601 Electronic Clerk's Notes for proceedings held before Judge Allison D. Burroughs: Bench Trial Day 10 held on 10/26/2018. Testimony of Peter Arcidiacono resumes. Deposition testimony read into the record. (Court Reporter: Joan Daly at

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10/30/2018 10/30/2018 10/30/2018
10/31/2018
11/01/2018
11/02/2018
11/05/2018 11/05/2018 11/06/2018 11/13/2018

joanmdaly62@gmail.com.) (Folan, Karen) (Entered: 10/29/2018)
609 Opposition to SFFA's Oral Motion to Admit P438 and P588 by President and Fellows of Harvard College. (Folan, Karen) (Entered: 11/02/2018)
596 Assented to MOTION to Seal by Students for Fair Admissions, Inc..(Hacker, Katherine) (Entered: 10/27/2018)
597 NOTICE by Students for Fair Admissions, Inc. of Deposition Designations Played in Court (Attachments: # 1 Script report)(Hacker, Katherine) (Entered: 10/27/2018)
598 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 596 Motion to Seal (Folan, Karen) (Entered: 10/29/2018)
606 Electronic Clerk's Notes for proceedings held before Judge Allison D. Burroughs: Bench Trial Day 11 held on 10/29/2018. Margaret Chin, Sarah Cole, Catherine Ho, Cecelia Nunez, Thang Diep, Madison Trice, and Sally Chen all sworn and testify. (Court Reporter: Kelly Mortellite and Joan Daly at joanmdaly62@gmail.com.) (Folan, Karen) (Entered: 10/31/2018)
602 NOTICE by Students for Fair Admissions, Inc. Bench Brief Regarding Exhibits D669 Through D730 (Mortara, Adam) (Entered: 10/30/2018)
603 NOTICE by Students for Fair Admissions, Inc. Offer of Proof of Deposition Designations (Mortara, Adam) (Additional attachment(s) added on 10/30/2018: # 1 Exhibit 1 (Filed under Seal), # 2 Exhibit 2 (Filed Under Seal), # 3 Exhibit 3 (Filed Under Seal)) (McDonagh, Christina). (Entered: 10/30/2018)
604 Letter/request (non−motion) from Harvard in Response to Dkt. 602. (Waxman, Seth) (Entered: 10/30/2018)
605 Reply in Support of Admission of P438 and P588 by Students for Fair Admissions, Inc. (Mortara, Adam) Modified on 11/1/2018 (McDonagh, Christina). (Entered: 10/30/2018)
607 Electronic Clerk's Notes for proceedings held before Judge Allison D. Burroughs: Bench Trial Day 12 held on 10/30/2018. Ruth Simmons and David Card sworn and testify. (Court Reporter: Joan Daly at joanmdaly62@gmail.com.) (Folan, Karen) (Entered: 10/31/2018)
608 Electronic Clerk's Notes for proceedings held before Judge Allison D. Burroughs: Bench Trial Day 13 held on 10/31/2018. Testimony of David Card resumes. (Court Reporter: Joan Daly at joanmdaly62@gmail.com.) (Folan, Karen) (Entered: 11/01/2018)
613 Electronic Clerk's Notes for proceedings held before Judge Allison D. Burroughs: Bench Trial Day 14 held on 11/1/2018. Testimony of David Card resumes. Marlyn McGrath sworn and testifies. Plaintiff rests. Drew Faust sworn and testifies. Deposition testimony read into the record. Defense rests. (Court Reporter: Joan Daly at joanmdaly62@gmail.com.) (Folan, Karen) (Entered: 11/13/2018)
614 Electronic Clerk's Notes for proceedings held before Judge Allison D. Burroughs: Bench Trial Day 15 completed on 11/2/2018. Closing arguments by the parties. (Court Reporter: Joan Daly at joanmdaly62@gmail.com.) (Folan, Karen) (Entered: 11/13/2018)
610 NOTICE of Change of Address or Firm Name by Adam K Mortara (Mortara, Adam) (Entered: 11/05/2018)
611 NOTICE by Students for Fair Admissions, Inc. Admitted Exhibit List (Mortara, Adam) (Entered: 11/05/2018)
612 ELECTRONIC NOTICE of Hearing.Hearing on Arguments in support of proposed findings set for 2/13/2019 02:00 PM in Courtroom 17 before Judge Allison D. Burroughs. (Folan, Karen) (Entered: 11/06/2018)
615 Joint MOTION Entry of Scheduling Order by Students for Fair Admissions, Inc..(Consovoy, William) (Entered: 11/13/2018)

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11/14/2018 11/14/2018 12/18/2018 12/19/2018 12/19/2018 12/20/2018 01/08/2019 01/09/2019
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02/13/2019

616 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 615 Motion for Entry of Scheduling Order (Folan, Karen) (Entered: 11/14/2018)
617 NOTICE by President and Fellows of Harvard College Corrected Admitted Exhibit List (Attachments: # 1 Exhibit 01)(Ellsworth, Felicia) (Entered: 11/14/2018)
618 Consent MOTION to Seal by Students for Fair Admissions, Inc..(Consovoy, William) (Entered: 12/19/2018)
619 Proposed Findings of Fact by President and Fellows of Harvard College. (Attachments: # 1 Appendix Selected Exhibits)(Waxman, Seth) (Entered: 12/19/2018)
620 Proposed Findings of Fact by Students for Fair Admissions, Inc.. (Attachments: # 1 Appendix)(Consovoy, William) (Additional attachment(s) added on 12/20/2018: # 2 Unredacted Version, # 3 Appendix Unredacted Version) (McDonagh, Christina). (Entered: 12/19/2018)
621 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 618 Motion to Seal (Folan, Karen) (Entered: 12/20/2018)
622 AMICUS BRIEF filed by Asian American Coalition for Education AMICI CURIAE BRIEF OF THE ASIAN AMERICAN COALITION FOR EDUCATION AND THE ASIAN AMERICAN LEGAL FOUNDATION, IN SUPPORT OF PLAINTIFF STUDENTS FOR FAIR ADMISSIONS, INC.. (Fauth, Gordon) (Entered: 01/08/2019)
623 Proposed Findings of Fact by 21 Colorful Crimson, Association of Black Harvard Women, Coalition for a Diverse Harvard, First Generation Harvard Alumni, Fuerza Latina of Harvard, Harvard Asian American Alumni Alliance, Harvard Asian American Brotherhood, Harvard Black Alumni Society, Harvard Islamic Society, Harvard Japan Society, Harvard Korean Association, Harvard Latino Alumni Alliance, Harvard Minority Association of Pre−Medical Students, Harvard Phillips Brooks House Association, Harvard South Asian Association, Harvard University Muslim Alumni, Harvard Vietnamese Association, Harvard−Radcliffe Asian American Association, Harvard−Radcliffe Asian American Women's Association, Harvard−Radcliffe Black Students Association, Harvard−Radcliffe Chinese Students Association, Kuumba Singers of Harvard College, Native American Alumni of Harvard University, Native Americans At Harvard College, Task Force on Asian and Pacific American Studies at Harvard College. (Lee, Jin) (Entered: 01/09/2019)
624 AMICUS BRIEF filed by Amici Curiae Economists Michael Keane et al., in Support of Students for Fair Admissions . (Attachments: # 1 Exhibit A)(Clark, Randall) (Entered: 01/09/2019)
625 AMICUS BRIEF filed by Amici Curiae the Asian American Legal Defense and Education Fund, et al. in Support of Defendant. (Rodriguez, Madeleine) (Entered: 01/09/2019)
626 Proposed Findings of Fact by M. B., K. C., Sarah Cole, Y. D., G. E., A. G., I. G., R. H., J. L., Fadhal Moore, Arjini Kumari Nawal, R. S., Itzel Vasquez−Rodriguez, Keyanna Wigglesworth. (Culleen, Lawrence) (Entered: 01/09/2019)
627 Proposed Findings of Fact by Students for Fair Admissions, Inc.. (Consovoy, William) (Entered: 01/23/2019)
628 Response by President and Fellows of Harvard College to 620 Proposed Findings of Fact . (Waxman, Seth) (Entered: 01/23/2019)
629 Hearing of arguments in support of proposed findings of fact and conclusions of law is rescheduled for February 13, 2019 at 1:30 PM in Courtroom 17. This is a TIME change only. SFFA and Harvard may each have up to 60 minutes for argument. Amici groups "Students" and "Organizations" will each be allowed up to 15 minutes. See ECF No. 575 .(McDonagh, Christina) (Entered: 01/31/2019)
630 Electronic Clerk's Notes for proceedings held before Judge Allison D. Burroughs: Hearing re on arguments in support of proposed findings of fact and conclusions of law held on 2/13/2019. (Court Reporter: Joan Daly at joanmdaly62@gmail.com.) (Folan, Karen) (Entered: 02/13/2019)

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631 Transcript of Bench Trial − Day One held on October 15, 2018, before Judge Allison D. Burroughs. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Joan Daly at joanmdaly62@gmail.com Redaction Request due 5/9/2019. Redacted Transcript Deadline set for 5/20/2019. Release of Transcript Restriction set for 7/17/2019. (Scalfani, Deborah) (Entered: 04/18/2019)
632 Transcript of Bench Trial − Day Two held on October 16, 2018, before Judge Allison D. Burroughs. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Joan Daly at joanmdaly62@gmail.com Redaction Request due 5/9/2019. Redacted Transcript Deadline set for 5/20/2019. Release of Transcript Restriction set for 7/17/2019. (Scalfani, Deborah) (Entered: 04/18/2019)
633 Transcript of Bench Trial − Day Three held on October 17, 2018, before Judge Allison D. Burroughs. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Joan Daly at joanmdaly62@gmail.com Redaction Request due 5/9/2019. Redacted Transcript Deadline set for 5/20/2019. Release of Transcript Restriction set for 7/17/2019.(Scalfani, Deborah) (Entered: 04/18/2019)
634 SEALED Transcript of Bench Trial − Day Three held on October 17, 2018, before Judge Allison D. Burroughs. Court Reporter Name and Contact Information: Joan Daly at joanmdaly62@gmail.com (Scalfani, Deborah) (Entered: 04/18/2019)
635 Transcript of Bench Trial − Day Four held on October 18, 2018, before Judge Allison D. Burroughs. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Joan Daly at joanmdaly62@gmail.com Redaction Request due 5/9/2019. Redacted Transcript Deadline set for 5/20/2019. Release of Transcript Restriction set for 7/17/2019. (Scalfani, Deborah) (Entered: 04/18/2019)
636 Transcript of Bench Trial − Day Five held on October 19, 2018, before Judge Allison D. Burroughs. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Kelly Mortellite and Joan Daly at joanmdaly62@gmail.com Redaction Request due 5/9/2019. Redacted Transcript Deadline set for 5/20/2019. Release of Transcript Restriction set for 7/17/2019. (Scalfani, Deborah) Modified on 4/18/2019 (Scalfani, Deborah). (Entered: 04/18/2019)
637 SEALED Transcript of Bench Trial − Day Five held on October 19, 2018, before Judge Allison D. Burroughs. Court Reporter Name and Contact Information: Kelly Mortellite and Joan Daly at joanmdaly62@gmail.com (Scalfani, Deborah) (Entered: 04/18/2019)
638 Transcript of Bench Trial − Day Six held on October 22, 2018, before Judge Allison D. Burroughs. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Joan Daly at joanmdaly62@gmail.com Redaction Request due 5/9/2019. Redacted Transcript Deadline set for 5/20/2019. Release of Transcript Restriction set for 7/17/2019. (Scalfani, Deborah) (Entered: 04/18/2019)
639 SEALED Transcript of Bench Trial − Day Six held on October 22, 2018, before Judge Allison D. Burroughs. Court Reporter Name and Contact Information: Joan Daly at joanmdaly62@gmail.com (Scalfani, Deborah) (Entered: 04/18/2019)
640 Transcript of Bench Trial − Day Seven held on October 23, 2018, before Judge Allison D. Burroughs. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Joan Daly at joanmdaly62@gmail.com Redaction Request due 5/9/2019. Redacted Transcript Deadline set for 5/20/2019. Release of Transcript Restriction set for 7/17/2019. (Scalfani, Deborah) (Entered: 04/18/2019)
641 SEALED Transcript of Bench Trial − Day Seven held on October 23, 2018, before Judge Allison D. Burroughs. Court Reporter Name and Contact Information: Joan Daly at joanmdaly62@gmail.com (Scalfani, Deborah) (Entered: 04/18/2019)

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642 Transcript of Bench Trial − Day Eight held on October 24, 2018, before Judge Allison D. Burroughs. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Kelly Mortellite and Joan Daly at joanmdaly62@gmail.com Redaction Request due 5/9/2019. Redacted Transcript Deadline set for 5/20/2019. Release of Transcript Restriction set for 7/17/2019. (Scalfani, Deborah) (Entered: 04/18/2019)
643 SEALED Transcript of Bench Trial − Day Eight held on October 24, 2018, before Judge Allison D. Burroughs. Court Reporter Name and Contact Information: Kelly Mortellite and Joan Daly at joanmdaly62@gmail.com (Scalfani, Deborah) (Entered: 04/18/2019)
644 Transcript of Bench Trial − Day Nine held on October 25, 2018, before Judge Allison D. Burroughs. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Joan Daly at joanmdaly62@gmail.com Redaction Request due 5/9/2019. Redacted Transcript Deadline set for 5/20/2019. Release of Transcript Restriction set for 7/17/2019. (Scalfani, Deborah) (Entered: 04/18/2019)
645 SEALED Transcript of Bench Trial − Day Nine held on October 25, 2018, before First. Court Reporter Name and Contact Information: Joan Daly at joanmdaly62@gmail.com (Scalfani, Deborah) (Entered: 04/18/2019)
646 Transcript of Bench Trial − Day Ten held on October 26, 2018, before Judge Allison D. Burroughs. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Kelly Mortellite and Joan Daly at joanmdaly62@gmail.com Redaction Request due 5/9/2019. Redacted Transcript Deadline set for 5/20/2019. Release of Transcript Restriction set for 7/17/2019. (Scalfani, Deborah) (Entered: 04/18/2019)
647 SEALED Transcript of Bench Trial − Day Ten held on October 26, 2018, before Judge Allison D. Burroughs. Court Reporter Name and Contact Information: Kelly Mortellite and Joan Daly at joanmdaly62@gmail.com (Scalfani, Deborah) (Entered: 04/18/2019)
648 Transcript of Bench Trial − Day Eleven held on October 29, 2018, before Judge Allison D. Burroughs. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Kelly Mortellite and Joan Daly at joanmdaly62@gmail.com Redaction Request due 5/9/2019. Redacted Transcript Deadline set for 5/20/2019. Release of Transcript Restriction set for 7/17/2019. (Scalfani, Deborah) (Entered: 04/18/2019)
649 SEALED Transcript of Bench Trial − Day Eleven held on October 29, 2018, before Judge Allison D. Burroughs. Court Reporter Name and Contact Information: Kelly Mortellite and Joan Daly at joanmdaly62@gmail.com (Scalfani, Deborah) (Entered: 04/18/2019)
650 Transcript of Bench Trial − Day Twelve held on October 30, 2018, before Judge Allison D. Burroughs. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Kelly Mortellite and Joan Daly at joanmdaly62@gmail.com Redaction Request due 5/9/2019. Redacted Transcript Deadline set for 5/20/2019. Release of Transcript Restriction set for 7/17/2019. (Scalfani, Deborah) (Entered: 04/18/2019)
651 SEALED Transcript of Jury Trial − Day Twelve held on October 30, 2018, before Judge Allison D. Burroughs. Court Reporter Name and Contact Information: Kelly Mortellite and Joan Daly at joanmdaly62@gmail.com (Scalfani, Deborah) (Entered: 04/18/2019)
652 Transcript of Bench Trial − Day Thirteen held on October 31, 2018, before Judge Allison D. Burroughs. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Kelly Mortellite and Joan Daly at joanmdaly62@gmail.com Redacted Transcript Deadline set for 5/20/2019. Release of Transcript Restriction set for 7/17/2019. (Scalfani, Deborah) (Entered: 04/18/2019)

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653 SEALED Transcript of Bench Trial − Day Thirteen held on October 31, 2018, before Judge Allison D. Burroughs. Court Reporter Name and Contact Information: Kelly Mortellite and Joan Daly at joanmdaly62@gmail.com (Scalfani, Deborah) (Entered: 04/18/2019)
654 Transcript of Bench Trial − Day Fourteen held on November 1, 2018, before Judge Allison D. Burroughs. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Kelly Mortellite and Joan Daly at joanmdaly62@gmail.com Redaction Request due 5/9/2019. Redacted Transcript Deadline set for 5/20/2019. Release of Transcript Restriction set for 7/17/2019. (Scalfani, Deborah) (Entered: 04/18/2019)
655 SEALED Transcript of Bench Trial − Day Fourteen held on November 1, 2018, before Judge Allison D. Burroughs. Court Reporter Name and Contact Information: Kelly Mortellite and Joan Daly at joanmdaly62@gmail.com (Scalfani, Deborah) (Entered: 04/18/2019)
656 Transcript of Bench Trial Day Fifteen (Closing Arguments) held on November 2, 2018, before Judge Allison D. Burroughs. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information:Kelly Mortellite and Joan Daly at joanmdaly62@gmail.com Redaction Request due 5/9/2019. Redacted Transcript Deadline set for 5/20/2019. Release of Transcript Restriction set for 7/17/2019. (Scalfani, Deborah) (Entered: 04/18/2019)
657 SEALED Transcript of Bench Trial − Day Fifteen held on November 2, 2018, before Judge Allison D. Burroughs. Court Reporter Name and Contact Information:Kelly Mortellite and Joan Daly at joanmdaly62@gmail.com (Scalfani, Deborah) (Entered: 04/18/2019)
658 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 04/18/2019)
659 NOTICE of Withdrawal of Appearance by Michael H. Park (Park, Michael) (Entered: 05/14/2019)
660 NOTICE of Withdrawal of Appearance by Lawrence Culleen on behalf of Brenda Shum (Culleen, Lawrence) (Entered: 05/16/2019)
661 NOTICE of Withdrawal of Appearance by Lawrence Culleen on behalf of Nicole K. Ochi (Culleen, Lawrence) (Entered: 06/04/2019)
662 MOTION for Leave to Appear Pro Hac Vice for admission of Laboni Hoq Filing fee: $ 100, receipt number 0101−7721447 by M. B., K. C., Sarah Cole, Y. D., G. E., A. G., I. G., R. H., J. L., Fadhal Moore, Arjini Kumari Nawal, R. S., Itzel Vasquez−Rodriguez, Keyanna Wigglesworth.(Sellstrom, Oren) (Entered: 06/07/2019)
663 MOTION for Leave to Appear Pro Hac Vice for admission of Christopher Lapinig Filing fee: $ 100, receipt number 0101−7721517 by M. B., K. C., Sarah Cole, Y. D., G. E., A. G., I. G., R. H., J. L., Fadhal Moore, Arjini Kumari Nawal, R. S., Itzel Vasquez−Rodriguez, Keyanna Wigglesworth.(Sellstrom, Oren) (Entered: 06/07/2019)
664 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 662 Motion for Leave to Appear Pro Hac Vice Added Laboni Hoq. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. Pursuant to Local Rule 83.5.3, local counsel shall also file an appearance in this matter. Further, local counsel shall review all filings and shall personally appear in Court for any hearings or conferences, unless expressly excused by the Court for good cause. (McDonagh, Christina) (Entered: 06/10/2019)

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665 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 663 Motion for Leave to Appear Pro Hac Vice Added Christopher Lapinig. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. Pursuant to Local Rule 83.5.3, local counsel shall also file an appearance in this matter. Further, local counsel shall review all filings and shall personally appear in Court for any hearings or conferences, unless expressly excused by the Court for good cause. (McDonagh, Christina) (Entered: 06/10/2019)
666 Transcript of Closing Arguments held on February 13, 2019, before Judge Allison D. Burroughs. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Joan Daly at joanmdaly62@gmail.com Redaction Request due 7/22/2019. Redacted Transcript Deadline set for 8/1/2019. Release of Transcript Restriction set for 9/30/2019. (Scalfani, Deborah) (Entered: 07/01/2019)
667 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 07/01/2019)
668 NOTICE of Withdrawal of Appearance by Daniel Winik (Winik, Daniel) (Entered: 07/02/2019)
669 NOTICE of Withdrawal of Appearance by Andrew R. Varcoe (Varcoe, Andrew) (Entered: 08/16/2019)
671 Letter. (McDonagh, Christina) (Entered: 09/04/2019)
670 USCA Judgment In Re: Lawrence L. Crawford. Appeal No. 18−8022. The petition is DISMISSED for want of jurisdiction. All pending motions are DENIED. (Pacho, Arnold) (Entered: 08/28/2019)
672 Judge Allison D. Burroughs: ORDER entered. FINDINGS OF FACT AND CONCLUSIONS OF LAW (McDonagh, Christina) (Entered: 10/01/2019)
673 Judge Allison D. Burroughs: ORDER entered. Judgment for the Defendant President and Fellows of Harvard College (Harvard Corporation).(McDonagh, Christina) (Entered: 10/01/2019)
674 NOTICE OF APPEAL 672 FINDINGS OF FACT AND CONCLUSIONS OF LAW 673 JUDGMENT by Students for Fair Admissions, Inc. Filing fee: $ 505, receipt number 0101−7910565 Fee Status: Not Exempt. NOTICE TO COUNSEL: A Transcript Report/Order Form, which can be downloaded from the First Circuit Court of Appeals web site at http://www.ca1.uscourts.gov MUST be completed and submitted to the Court of Appeals. Counsel shall register for a First Circuit CM/ECF Appellate Filer Account at http://pacer.psc.uscourts.gov/cmecf. Counsel shall also review the First Circuit requirements for electronic filing by visiting the CM/ECF Information section at http://www.ca1.uscourts.gov/cmecf. US District Court Clerk to deliver official record to Court of Appeals by 10/24/2019. (Consovoy, William) (Modified on 10/4/2019 to Correct Docket Text and CM/ECF Document Link − Appealed Orders) (Paine, Matthew). (Entered: 10/04/2019)
675 Certified and Transmitted Abbreviated Electronic Record on Appeal to US Court of Appeals re 674 Notice of Appeal. (Paine, Matthew) (Entered: 10/07/2019)
676 USCA Case Number 19−2005 for 674 Notice of Appeal filed by Students for Fair Admissions, Inc.. (Paine, Matthew) (Entered: 10/08/2019)
677 NOTICE of Withdrawal of Appearance by Lawrence Culleen on behalf of Laboni A. Hoq (Culleen, Lawrence) (Entered: 12/09/2019)