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

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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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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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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. JA2228-

2229, 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 

of 

2010

Class 

of 

2011

Class 

of 

2012

Class 

of 

2013

Class 

of 

2014

Class 

of 

2015

Class 

of 

2016

Class 

of 

2017

Range

Asian 

American

17.6 19.5 19.1 17.5 19.8 19.3 20.3 19.5 2.8

African 

American

10.4 10.5 10.0 10.4 11.1 11.6 10.0 11.4 1.6

Hispanic 

American

9.7 9.9 8.9 10.6 8.8 11.1 9.3 10.4 2.3

Combined

African 

American 

and 

Hispanic 

American

20.1 20.4 18.9 21.0 19.9 22.7 19.3 21.8 3.8

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 

2014

Class of 

2015

Class of 

2016

Class of 

2017

Range

Asian 

American

17.9 17.6 20.5 19.9 2.9

African 

American

11.0 11.6 10.0 11.4 1.6

Hispanic 

American

10.0 12.1 11.1 11.5 2.1

Combined 

African 

American 

and 

Hispanic 

American

21.0 23.7 21.1 22.9 2.7

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; JA5735-

5742). 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 2206-

2207. 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; ADD79-

80. 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 

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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 

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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.

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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.

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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 

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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.

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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

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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. 

 s/ Matthew J. Donnelly 

MATTHEW J. DONNELLY 

 Attorney

Dated: February 25, 2020

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