Students for Fair Admissions, Inc. v. President and Fellows of Harvard College et al

Filing 124

Letter/request (non-motion) from SFFA to Judge Burroughs . (Caldwell, Benjamin) (Main Document 124 replaced on 2/9/2016) (Montes, Mariliz).

Ten Post Office Square
8th Floor South PMB #706
Boston, MA 02109
617.227.0548
www.consovoymccarthy.com

February 1, 2016
Hon. Allison D. Burroughs
U.S. District Court, District of Massachusetts
John Joseph Moakley U.S. Courthouse
1 Courthouse Way, Suite 2300
Boston, MA 02210
Re:

Students for Fair Admissions, Inc. v. President & Fellows of Harvard College,
No. 1:14-cv-14176-ADB

Dear Judge Burroughs,
Plaintiff Students for Fair Admissions, Inc. (“SFFA”) respectfully submits this letter to
propose that discovery move forward on SFFA’s following requests for production of
documents (“RFPs”). At the status conference on January 28, 2016, the Court stated
that Harvard should move forward with production of documents in response to
SFFA’s RFP Nos. 16, 18, 27, and 31. In addition, the Court invited SFFA to submit a
letter proposing additional discovery items that should move forward during the
Fisher stay. Listed below are several categories of requests targeted at material that
is relevant to this case regardless of the outcome of Fisher II.1
Policies, Manuals, and Guides. To the extent that Harvard’s production of the
following categories of documents is not already complete, it should produce all
remaining responsive materials:


Nos. 1-14: Codebooks or guides for the databases identified in requests 1-14.



No. 17: “All training manuals or other formal instructional materials from any
time used to train or guide Your admissions personnel on how to perform
admissions tasks, including the evaluation of admissions files, the preparation
of admissions reports, outreach activities, and recruitment activities.”

Harvard has agreed to produce documents responsive to most of these requests and
has objected on relevance and other grounds to others. Such objections are separate from
whether discovery can proceed during while Fisher II is pending and should be resolved
separately through motion practice, if necessary, after the parties attempt to reach agreement
through the meet-and-confer process.
1

Hon. Allison D. Burroughs
February 1, 2016
Page 2



No. 20: “All guidelines and manuals used by your admissions office during the
Relevant Period, including (but not limited to) the documents described in
Section II(I) of your Rule 26(a)(1)(a)(ii) disclosures.”

Application Files for SFFA Members. Harvard previously agreed to produce
complete application files for the individuals identified as SFFA members. Producing
these files implicates no third-party privacy concerns, is relevant to standing-related
discovery and will help SFFA and the Court understand the contents of an application
file and how they relate to or supplement electronic database information.
Documents Concerning Race and the Admissions Process. To the extent that there
are materials responsive to the following requests that do not identify individual
applicants, Harvard should produce the following:


No. 15: “All documents from the Relevant Period prepared by You concerning
the racial composition of the pool of applicants, admitted persons, or enrollees
to Harvard.”
o For example, Harvard’s Director of Admissions testified that regular
reports on the racial composition of the applicant pool were prepared
for her and for Dean Fitzsimmons during meetings of the full committee
on admissions. See, e.g., McGrath Dep. Tr. at 202, 262-63. This is
precisely the type of document the Court indicated should be produced
notwithstanding the pendency of Fisher II.



No. 22: “All communications from the Relevant Period by or among Your
employees or agents regarding the use of race in the admissions process,
including (but not limited to): the importance of diversity; any goals or targets
for the racial composition of a particular admissions cycle or subset of
applicants, admitted students or enrolled students; Your efforts to achieve
a critical mass of Underrepresented Minority students; and your efforts to
increase or decrease the number of applicants, admitted students, or enrollees
at Harvard by race.”



No. 23: “All communications from any time by or among Your employees or
agents regarding: Your use of race as a tiebreaker in the admissions process;
any adjustments made to the criteria of admissions for particular racial groups
or subsets; and any changes or evaluations of Your admissions policies in light
of U.S. Supreme Court decisions.”



No. 32: “All communications with third parties (including, but not limited to,
testing services, college boards, accreditation bodies, educational associations,
ratings providers, and secondary schools, but excluding applicants and their
families) during the Relevant Period concerning the use of race in your

Hon. Allison D. Burroughs
February 1, 2016
Page 3

admissions process or the racial composition of your applicants, admitted
students, and enrolled students.”
o For example, Harvard’s Director of Admissions testified about
communications with the Association of Black Admissions and
Financial Aid Officers of the Ivy League and Sister Schools
(ABAFAOILSS), in which Harvard officials shared “trends during the
current admissions cycle,” including “[t]rends of applicants, how the
pool—how the recruitment went, how many applicants people have”
by racial category. See McGrath Dep. Tr. at 135-36. Communications of
this type should be produced during the Fisher stay.


No. 33: “All documents from the Relevant Period that seek to measure,
estimate, or predict, using race or other demographic variables, the
application rate of high school students to Harvard, the rate at which
applicants are admitted, the rate at which admitted students enroll, the
academic performance at Harvard of enrolled students, the major selection at
Harvard of enrolled students, the dropout rate at Harvard of enrolled students,
the graduation rate at Harvard of enrolled students, or the debt levels accrued
by enrolled students while at Harvard.”
o Specifically, SFFA has requested that Harvard produce aggregate data
regarding the academic performance of students by race—a request
that Harvard was considering before it moved for a stay.

Documents Concerning Harvard’s Consideration of Race-Neutral Alternatives.
To the extent that the following requests do not require production of materials
identifying individual applicants, Harvard should produce all responsive materials:


No. 37: “All reports, analyses, surveys, or other reviews or assessments
prepared by Your employees or agents during the Relevant Period concerning
race-neutral alternatives.”



No. 38: “All documents from each admissions cycle during the Relevant Period
sufficient to show that You considered and determined that no workable raceneutral alternatives would produce the educational benefits of diversity.”

During the January 28 conference, the Court indicated its desire for this case to move
forward during the Fisher stay, provided that any discovery not include information
pertaining to specific applicants. Responses to the RFPs above concern Harvard’s
implementation of its race-conscious admissions policy and thus will be necessary
regardless of the outcome of Fisher II. Accordingly, SFFA respectfully submits that
such discovery should proceed to the extent that it does not include personally
identifiable information.

Hon. Allison D. Burroughs
February 1, 2016
Page 4

Respectfully submitted,
/s/ Patrick Strawbridge
Patrick Strawbridge
cc:

William S. Consovoy, Esq.
Paul M. Sanford, Esq.
Seth P. Waxman, Esq.
Felicia Ellsworth, Esq.