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

Filing 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)

UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF MASSACHUSETTS
BOSTON DIVISION

STUDENTS FOR FAIR ADMISSIONS, INC.,
Plaintiff,

Civil Action No. 1:14-cv-14176-ADB

v.
PRESIDENT AND FELLOWS OF HARVARD
COLLEGE (HARVARD CORPORATION),

Motion to File Under Seal Granted
June 14, 2018 [Dkt. 411]

Defendant.
DECLARATION OF FELICIA H. ELLSWORTH IN
SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
I, Felicia H. Ellsworth, hereby state under oath:
I am a member in good standing of the bar of the Commonwealth of Massachusetts and
this Court, and am a partner at Wilmer Cutler Pickering Hale and Dorr LLP. I am one of the
counsel representing Defendant President and Fellows of Harvard College (Harvard Corporation)
(“Harvard”) in the above-captioned matter. I submit this declaration in support of Harvard’s
Motion for Summary Judgment.
1.

Attached hereto as Exhibit 1 is a true and accurate copy of excerpts of the June

18, 2015 deposition of Marlyn McGrath.
2.

Attached hereto as Exhibit 2 is a true and accurate copy of excerpts of the July 12,

2016 deposition of Edward Blum.
3.

Attached hereto as Exhibit 3 is a true and accurate copy of excerpts of the March

6, 2017 deposition of Caroline Weaver.

4.

Attached hereto as Exhibit 4 is a true and accurate copy of excerpts of the March

10, 2017 deposition of Drew Faust.
5.

Attached hereto as Exhibit 5 is a true and accurate copy of excerpts of the March

24, 2017 deposition of Elizabeth Yong.
6.

Attached hereto as Exhibit 6 is a true and accurate copy of excerpts of the April 7,

2017 deposition of Grace Cheng.
7.

Attached hereto as Exhibit 7 is a true and accurate copy of excerpts of the April

11, 2017 deposition of Michael Smith.
8.

Attached hereto as Exhibit 8 is a true and accurate copy of excerpts of the April

27, 2017 deposition of Rakesh Khurana.
9.

Attached hereto as Exhibit 9 is a true and accurate copy of excerpts of the May 4,

2017 deposition of Roger Banks.
10.

Attached hereto as Exhibit 10 is a true and accurate copy of excerpts of the May

10, 2018 deposition of Richard Fisher.
11.

Attached hereto as Exhibit 11 is a true and accurate copy of excerpts of the May

16, 2017 deposition of
12.

.

Attached hereto as Exhibit 12 is a true and accurate copy of excerpts of the June

6, 2017 deposition of Sarah Donahue.
13.

Attached hereto as Exhibit 13 is a true and accurate copy of excerpts of the June

7, 2017 deposition of Tia Ray.
14.

Attached hereto as Exhibit 14 is a true and accurate copy of excerpts of the June

14, 2017 deposition of Lucerito Ortiz.
2

15.

Attached hereto as Exhibit 15 is a true and accurate copy of excerpts of the June

16, 2017 deposition of
16.

.

Attached hereto as Exhibit 16 is a true and accurate copy of excerpts of the June

20, 2017 deposition of Kaitlin Howrigan.
17.

Attached hereto as Exhibit 17 is a true and accurate copy of excerpts of the June

28, 2017 deposition of Brock Walsh.
18.

Attached hereto as Exhibit 18 is a true and accurate copy of excerpts of the June

20, 2017 deposition of Chris Looby.
19.

Attached hereto as Exhibit 19 is a true and accurate copy of excerpts of the July

12, 2017 deposition of
20.

.

Attached hereto as Exhibit 20 is a true and accurate copy of excerpts of the July

19, 2017 deposition of Mark Hansen.
21.

Attached hereto as Exhibit 21 is a true and accurate copy of excerpts of the July

20, 2017 deposition of
22.

.

Attached hereto as Exhibit 22 is a true and accurate copy of excerpts of the July

24, 2017 deposition of
23.

Attached hereto as Exhibit 23 is a true and accurate copy of excerpts of the July

27, 2017 deposition of Erin Driver-Linn.
24.

Attached hereto as Exhibit 24 is a true and accurate copy of excerpts of the July

27, 2017 deposition of
25.

Attached hereto as Exhibit 25 is a true and accurate copy of excerpts of the

August 1, 2017 deposition of Marlyn McGrath.
3

26.

Attached hereto as Exhibit 26 is a true and accurate copy of excerpts of the

August 3, 2017 deposition of William Fitzsimmons.
27.

Attached hereto as Exhibit 27 is a true and accurate copy of excerpts of the April

12, 2018 deposition of Peter Arcidiacono.
28.

Attached hereto as Exhibit 28 is a true and accurate copy of the Rebuttal Report

of Ruth Simmons, Ph.D., dated Mar. 15, 2018.
29.

Attached hereto as Exhibit 29 is a true and accurate copy of excerpts of the April

27, 2018 deposition of David Card.
30.

Attached hereto as Exhibit 30 is a true and accurate copy of excerpts of the May

1, 2018 deposition of Richard Kahlenberg.
31.

Attached hereto as Exhibit 31 is a true and accurate copy of the Expert Report of

Peter S. Arcidiacono, dated Oct. 16, 2017.
32.

Attached hereto as Exhibit 32 is a true and accurate copy of the Expert Report of

Richard D. Kahlenberg, dated Oct. 16, 2017.
33.

Attached hereto as Exhibit 33 is a true and accurate copy of the Expert Report of

David Card, Ph.D., dated Dec. 15, 2017.
34.

Attached hereto as Exhibit 34 is a true and accurate copy of the Expert Report of

Ruth Simmons, Ph.D., dated Dec. 15, 2017.
35.

Attached hereto as Exhibit 35 is a true and accurate copy of the Rebuttal Expert

Report of Peter S. Arcidiacono, dated Jan. 29, 2018.
36.

Attached hereto as Exhibit 36 is a true and accurate copy of the Rebuttal Expert

Report of Richard D. Kahlenberg, dated Jan. 29, 2018.
4

37.

Attached hereto as Exhibit 37 is a true and accurate copy of the Rebuttal Report

of David Card, Ph.D., dated Mar. 5, 2018.
38.

Attached hereto as Exhibit 38 is a true and accurate copy of Richard D.

Kahlenberg’s Supplemental Expert Report Regarding the Final Report of the Committee to
Study Race-Neutral Alternatives, dated April 26, 2018.
39.

Attached hereto as Exhibit 39 is a true and accurate copy of excerpts of Plaintiff’s

Objections and Responses to Defendants’ Second Set of Interrogatories, dated July 20, 2017.
40.

Attached hereto as Exhibit 40 is a true and accurate copy of Plaintiff’s

Supplemental Response to Interrogatory No. 5.
41.

Attached hereto as Exhibit 41 is a true and accurate copy of a document entitled

President’s Report 1993–1995, Harvard University, HARV00030365–HARV00030450.
42.

Attached hereto as Exhibit 42 is a true and accurate copy of a document entitled

Confidential Briefing for Jim Ryan, Student Diversity Committee, dated June 26, 2014,
HARV00072365–HARV00072374.
43.

Attached hereto as Exhibit 43 is a true and accurate copy of a document entitled

Committee Meeting, September 24, 2014, HARV00072343.
44.

Attached hereto as Exhibit 44 is a true and accurate copy of a document entitled

Report of the College Working Group on Diversity and Inclusion, dated Nov. 2015,
HARV00007944–HARV00007982.
45.

Attached hereto as Exhibit 45 is a true and accurate copy of a document entitled

Report of the Committee to Study the Importance of Student Body Diversity, HARV00008048–
HARV00008069.
5

46.

Attached hereto as Exhibit 46 is a true and accurate copy of a document entitled

Race Neutral Alternatives Committee Charge, dated June 9, 2017, HARV00072381.
47.

Attached hereto as Exhibit 47 is a true and accurate copy of a document entitled

Report of The Committee to Study Race-Neutral Alternatives, dated April 2018,
HARV00097310–HARV00097328.
48.

Attached hereto as Exhibit 48 is a true and accurate copy of a document entitled

For Entrance in Fall 2015, Application Supplement, HARV0005429–HARV00005431.
49.

Attached hereto as Exhibit 49 is a true and accurate copy of a document entitled

The Common Application, First-Year Application, HARV00003562–HARV00003577.
50.

Attached hereto as Exhibit 50 is a true and accurate copy of a document entitled

Universal College Application, First-Year Admissions Application, HARV00003556–
HARV00003561.
51.

Attached hereto as Exhibit 51 is a true and accurate copy of excerpts of a

document entitled New Staff Training Schedule, HARV00000371.
52.

Attached hereto as Exhibit 52 is a true and accurate copy of a document entitled

2012 Casebook, HARV00000212–HARV00000321.
53.

Attached hereto as Exhibit 53 is a true and accurate copy of a document entitled

Discussion Guide to the 2012 Casebook, Harvard College Admissions, HARV00018164–
HARV00018176.
54.

Attached hereto as Exhibit 54 is a true and accurate copy of a document entitled

Interviewer Handbook 2013–2014, HARV00001145–HARV00001191.

6

55.

Attached hereto as Exhibit 55 is a true and accurate copy of a document entitled

Interviewer Handbook 2014–2015, HARV00001392–HARV00001438.
56.

Attached hereto as Exhibit 56 is a true and accurate copy of a document entitled

Reading Procedures, Class of 2017, HARV00009881–HARV00009903.
57.

Attached hereto as Exhibit 57 is a true and accurate copy of a document entitled

Reading Procedures, Class of 2018, HARV00015410–HARV00015427.
58.

Attached hereto as Exhibit 58 is a true and accurate copy of a document entitled

Note on the Collection and Reporting of Data on Race and Ethnicity, HARV00065450–
HARV00065452.
59.

Attached hereto as Exhibit 59 is a true and accurate copy of a document entitled

Addendum on the Collection and Reporting of Data on Race and Ethnicity, HARV00030509–
HARV00030512.
60.

Attached hereto as Exhibit 60 is a true and accurate copy of a document entitled

Harvard Admissions Officer Undergraduate Minority Recruitment Coordinator Manual, dated
Summer 2012, HARV00036378–HARV00036401.
61.

Attached hereto as Exhibit 61 are true and accurate copies of redacted

applications for admission to Harvard College, HARV00070279-70354; HARV0007114671190; HARV00071702-71746; and HARV00071791-71829.
62.

Attached hereto as Exhibit 62 is a true and accurate copy of a document entitled

Demographic Breakdown of Applicants, Admits, and Matriculants, HARV00032509–
HARV00032524.

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63.

Attached hereto as Exhibit 63 is a true and accurate copy of an email from Katey

Stone to Grace Cheng and Nathan Fry, with subject line “FW: Harvard Women’s Ice Hockey,”
dated Nov. 30, 2012, HARV00022645.
64.

Attached hereto as Exhibit 64 is a true and accurate copy of a document entitled

Memorandum to Members of the Corporation from Drew Faust and Mike Smith, Proposed
Changes in Admissions Policy, dated Feb. 2, 2011, HARV00030303–HARV00030332.
65.

Attached hereto as Exhibit 65 is a true and accurate copy of a document entitled

Office of Institutional Research, Admissions and Financial Aid at Harvard College, For
Discussion, dated Feb. 2013, HARV00031687–HARV00031772.
66.

Attached hereto as Exhibit 66 is a true and accurate copy of a document entitled

Office of Institutional Research, Admissions Part II, dated Feb 14, 2012, HARV00065741–
HARV00065774.
67.

Attached hereto as Exhibit 67 is a true and accurate copy of a document entitled

Harvard College Admissions and Low Income Students, dated May 1, 2013, HARV00023548–
HARV00023555.
68.

Attached hereto as Exhibit 68 is a true and accurate copy of a webpage entitled

Mission Vision and History, Harvard College, https://college.harvard.edu/about/mission-andvision (last visited June 8, 2018).
69.

Attached hereto as Exhibit 69 is a true and accurate copy of a webpage entitled

Letter from Dean Khurana to Harvard College Students, Harvard College (Nov. 19, 2015),
https://college.harvard.edu/about/dean-rakesh-khurana/messages-students/final-report-workinggroup-diversity-and-inclusion.
8

70.

Attached hereto as Exhibit 70 is a true and accurate copy of an article entitled

Melissa C. Rodman & Luca F. Schroeder, Faculty Unanimously Endorse Student Diversity, The
Harvard Crimson (Feb. 3, 2016), https://www.thecrimson.com/article/2016/2/3/faculty-endorsestudent-diversity/.
71.

Attached hereto as Exhibit 71 is a true and accurate copy of an article entitled

Support for a Diverse Student Body, Harvard Gazette (Feb. 16, 2016),
https://news.harvard.edu/gazette/story/2016/02/support-for-a-diverse-student-body.
72.

Attached hereto as Exhibit 72 is a true and accurate copy of a webpage entitled

Harvard at a Glance, Harvard University, https://www.harvard.edu/about-harvard/harvardglance (last visited June 11, 2018).
73.

Attached hereto as Exhibit 73 is a true and accurate copy of an article entitled Let

the Admissions Begin, Harvard Gazette (Dec. 15, 2011),
https://news.harvard.edu/gazette/story/2011/12/early-action/.
74.

Attached hereto as Exhibit 74 is a true and accurate copy of a webpage entitled

Application Requirements, Harvard College Admissions & Financial Aid,
https://college.harvard.edu/admissions/application-requirements (last visited June 11, 2018).
75.

Attached hereto as Exhibit 75 is a true and accurate copy of a webpage entitled

Application Timeline, Harvard College Admissions & Financial Aid,
https://college.harvard.edu/admissions/apply/application-timeline (last visited June 9, 2018).
76.

Attached hereto as Exhibit 76 is a true and accurate copy of a webpage entitled

Transferring to Harvard College, Harvard College Admissions & Financial Aid,

9

https://college.harvard.edu/admissions/application-process/transferring-harvard-college (last
visited June 10, 2018).
77.

Attached hereto as Exhibit 77 is a true and accurate copy of a webpage entitled

Frequently Asked Questions, Harvard College, https://college.harvard.edu/frequently-askedquestions (last visited June 11, 2018).
78.

Attached hereto as Exhibit 78 is a true and accurate copy of a webpage entitled

What is FAS?, Harvard Faculty of Arts and Sciences, https://www.fas.harvard.edu/pages/whatfas (last visited June 11, 2018).
79.

Attached hereto as Exhibit 79 is a true and accurate copy of an article entitled

Financial Aid Program Draws Record Number of Applicants, Harvard Gazette (Apr. 2, 2009),
https://news.harvard.edu/gazette/story/2009/04/financial-aid-program-draws-record-number-ofapplications/.
80.

Attached hereto as Exhibit 80 is a true and accurate copy of a webpage entitled

Fact Sheet, Harvard College Griffin Financial Aid Office, https://college.harvard.edu/financialaid/how-aid-works/fact-sheet (last visited June 11, 2018).
81.

Attached hereto as Exhibit 81 is a true and accurate copy of a webpage entitled

Net Price Calculator, Harvard College Griffin Financial Aid Office,
https://college.harvard.edu/financial-aid/net-price-calculator (last visited June 11, 2018).
82.

Attached hereto as Exhibit 82 is a true and accurate copy of an article entitled

1,962 admitted to Class of ’22, Harvard Gazette (Mar. 28, 2018),
https://news.harvard.edu/gazette/story/2018/03/1962-admitted-to-harvard-college-class-of-22/.

10

83.

Attached hereto as Exhibit 83 is a true and accurate copy of an article entitled

Joan Biskupic, A Litigious Activist’s Latest Cause: Ending Affirmative Action at Harvard,
Reuters (June 8, 2015), https://www.reuters.com/investigates/special-report/usa-harvarddiscrimination/.
84.

Attached hereto as Exhibit 84 is a true and accurate copy of a document entitled

College Board, Descriptor PLUS™ Cluster Description Guide 2-4 (2011),
http://media.collegeboard.com/digitalServices/pdf/miscellaneous/ClusterDescriptionGuide.pdf.
85.

Attached hereto as Exhibit 85 is a true and accurate copy of a document entitled

Articles of Incorporation of Students for Fair Admissions, Inc., dated July 29, 2014, SFFAHarvard0000002–SFFA-Harvard0000007.
86.

Attached hereto as Exhibit 86 is a true and accurate copy of a document entitled

Organizational Action Taken by the Sole Incorporator of Students for Fair Admissions, Inc.,
dated July 31, 2014, SFFA-Harvard 0000105–SFFA-Harvard 0000106.
87.

Attached hereto as Exhibit 87 is a true and accurate copy of a document entitled

Unanimous Written Consent in Lieu of an Organizational Meeting of Board of Directors of
Students for Fair Admissions, Inc., dated August 6, 2014, SFFA-Harvard 0000068–SFFAHarvard 0000097.
88.

Attached hereto as Exhibit 88 is a true and accurate copy of a document entitled

Form 1023 (Application for Recognition of Exemption) on behalf of Students for Fair
Admissions, Inc. (EIN:47-1689810), dated Oct. 8, 2014, SFFA-Harvard 0000008–SFFAHarvard 0000051.

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89.

Attached hereto as Exhibit 89 is a true and accurate copy of a document entitled

Unanimous Written Consent In Lieu of a Meeting of the Board of Directors of Students for Fair
Admissions, Inc., Amendment of Bylaws, dated June 19, 2015, SFFA-Harvard 0000052–SFFAHarvard 0000067.
90.

Attached hereto as Exhibit 90 is a true and accurate copy of a document entitled

Annual Report of Students for Fair Admissions (SFFA), dated June 30, 2015, SFFAHarvard0000119–SFFA-Harvard0000122.
91.

Attached hereto as Exhibit 91 is a true and accurate copy of SFFA’s Form 990

filed with the IRS for the calendar year ending December 31, 2015, SFFA-Harvard0001965–
SFFA-Harvard0001986.
92.

Attached hereto as Exhibit 92 is a true and accurate copy of SFFA’s Form 990

filed with the IRS for the calendar year ending December 31, 2016.
93.

Attached hereto as Exhibit 93 is a true and accurate copy of a document entitled

Declaration of

, dated June 17, 2016, SFFA-Harvard0001955–SFFA-

Harvard0001966.
94.

Attached hereto as Exhibit 94 is a true and accurate copy of a webpage entitled

Standing Committees Listed Alphabetically, Harvard University Faculty of Arts and Sciences,
Office of the Secretary (last visited June 14, 2018),
https://wiki.harvard.edu/confluence/display/secfas/Standing+Committees+Listed+
Alphabetically.
95.

Attached hereto as Exhibit 95 is a true and accurate copy of a document entitled

Coalition Application Profile.
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96.

Attached hereto as Exhibit 96 is a true and accurate copy of the Declaration of

Ruth Simmons, Ph.D., dated June 15, 2018.
97.

Attached hereto as Exhibit 97 is a true and accurate copy of the Declaration of

David Card, Ph.D., dated June 15, 2018.
I declare under penalty of perjury that the foregoing is true and correct.
Executed on this day, June 15, 2018.

/s/ Felicia H. Ellsworth
Felicia H. Ellsworth (BBO #665232)
WILMER CUTLER PICKERING
HALE AND DORR LLP
60 State Street
Boston, MA 02109
Tel: [phone]
Fax: [phone]
[e-mail]
Counsel for Defendant President and
Fellows of Harvard College

CERTIFICATE OF SERVICE
I hereby certify that this document filed through the CM/ECF system will be sent
electronically to the registered participants as identified on the Notice of Electronic Filing, and
the sealed version of this document will be served on counsel for SFFA by email.

/s/ Felicia H. Ellsworth
Felicia H. Ellsworth
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