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)

EXHIBIT 38

Supplemental Expert Report Regarding the Final Report of the Committee to
Study Race-Neutral Alternatives
Richard D. Kahlenberg
In April 2018, long after I submitted my expert rebuttal report in Students for Fair
Admissions v. Harvard, Harvard College produced a “Report of the Committee to
Study Race-Neutral Alternatives.”1 The report is the work product of a committee
consisting of three senior Harvard officials: William Fitzsimmons, Dean of
Admissions and Financial Aid; Rakesh Khurana, Dean of Harvard College; and
Michael D. Smith, Dean of the Faculty of Arts and Sciences.
The Committee concludes, after reviewing expert reports in the litigation and other
materials, that “at present, no workable race-neutral admissions practices 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.”2
Because this report—produced at this late date in the litigation—provides new
information that I was unable to include in my opening or rebuttal reports, I have
prepared this brief supplemental report.
There are numerous issues I take issue with in the Committee report (many of
which echo points I have made in my prior reports), but I will limit myself to five
critical points.
1.

The Committee Tacitly Accepted My Race-Neutral Alternatives on
Diversity Grounds.

The Committee does not explicitly reject race-neutral alternatives I outlined on
diversity grounds. In my expert reports, I described several simulations—including
Simulations 3, 4, 5, 6, and 7—which involved modest shifts in the shares of African
American and Hispanic students but largely maintained overall levels of racial
diversity. Each of these simulations also projected large increases in socioeconomic
diversity.3
The Committee did suggest that a plan that eliminates the use of race—and puts no
alternatives in place—would be unacceptable because it would result in a nearly
50% drop in the population of students who identify as underrepresented
minorities. African-American representation would drop from 14% to 6%, and
Hispanic or Other students would drop from 14% to 9%.4 By contrast, the

1 HARV00097310-00097328.
2 HARV00097327.
3 See, e.g., Kahlenberg Opening Report and Rebuttal Report, Simulations 3, 4, 5, 6,

and 7.
4 HARV00097317.

1

Committee did not suggest that my simulations failed to produce adequate levels of
diversity.
It would have been very difficult for the Committee to reject my simulations on
diversity grounds for two reasons. First, the Committee never provided a concrete
definition of what level of diversity would be acceptable. To the contrary, the
Committee said it does not have “in mind a specific number of students of any given
racial or ethnic background who must be on campus in order for Harvard’s
diversity-related objectives to be satisfied.”5 Having staked out this ground, it
would have been difficult to reject my simulations as unacceptable on diversity
grounds for failing to meet a nonexistent standard. Indeed, when asked specifically
if he would reject a race-neutral alternative that produced a class in which 10% of
students identified as African American, Dean Michael Smith testified, “We were not
looking for any particular number.”6
The reluctance to reject my alternatives is surely bolstered by the large rise such
policies would produce in socioeconomic diversity. In the admitted class of 2019,
only 17.4% of students came from roughly the bottom two-thirds of the
socioeconomic distribution; that rises to 54.3% in Simulation 4. In considering the
educational benefits of diversity, this much-needed increase in socioeconomic
diversity is critical. As the Committee appropriately acknowledged, “Students from
modest socioeconomic backgrounds may have distinct perspectives to share with
their peers in and outside the classroom, and a class that is diverse in socioeconomic
backgrounds is an essential part of the diversity of a student body that Harvard
strives to achieve.”7
2.

The Committee Incorrectly Suggests Race-Neutral Alternatives
Compromise Academic Quality.

Having failed to discredit my race-neutral alternatives on the basis of diversity, the
Committee instead alleges that the alternatives reviewed are unworkable because
they fail to maintain “the standards of excellence that Harvard seeks in its student
body.”8 For instance, the Committee rejects one alternative involving socioeconomic
preferences, even though it produces a share of underrepresented minorities
“comparable to that of the current class” because “the proportion of admitted
students with the highest academic ratings (as assigned by admissions officers)

5 HARV00097317.
6 Michael Smith deposition, April 23, 2018, p. 125.
7 HARV00097322.
8 HARV00097327.

2

would be expected to drop from 76% to 66%.”9 Although the Committee does not
identify the simulation in question, this description matches Simulation 4.10
But consider the actual impact of Simulation 4 using objective academic indicators
that are typically employed in academic research on the viability of race-neutral
alternatives (rather than a slice of Harvard’s internal ratings). The average
composite SAT score is quite comparable, moving from the 99th percentile (2239) to
the 98th percentile (2191). Average converted GPA actually rises slightly from 77.0
to 77.1.11 These changes would hardly seem to represent a threat to “the standards
of excellence that Harvard seeks in its student body.”12
Moreover, in considering the modest change in percentage of students receiving an
academic rating of 1 or 2 (10 percentage points, from 76% to 66%), surely it is
relevant that many more of the students admitted would have overcome
socioeconomic obstacles. Indeed, the Committee itself argues that academic
accomplishments should be considered in the context of hurdles a student has had
to surmount. “Harvard understands that excellence can be found in all quarters of
society, and students who excel or show promise of excelling despite limited access
to educational and other resources often show the kind of determination and
resilience that makes them likely to benefit greatly from what Harvard has to offer
students—and show that they will in turn have much to offer Harvard,” the
Committee observed.13 At another point in the report, the Committee observed that
SAT scores should be considered “in light of an applicant’s background and ability to
prepare.”14 The report continued: Harvard has “never sought to … maximize the
SAT scores of the admitted class.”15
Presumably, the same reasoning would be applied to ratings on factors such as
extracurricular activities. A student responsible for helping to support her family
through a job waiting on tables might not be expected to assemble an array of
extracurricular activities as polished as an advantaged student who can devote all
her time to participating in such activities.

9 HARV00097323.
10 Card Opening Report, p. 193.
11 Card Opening Report, p. 193.
12 HARV0097327.
13 HARV00097322.
14 HARV00097327. See also Dean Michael Smith deposition, p. 147.
15 HARV00097327.

3

3.

The Committee Incorrectly Rejects Place-Based Approaches to
Achieving Diversity.

On principle, the Committee rejects race-neutral alternatives that focus on admitting
top students from geographic areas because it says Harvard’s nuanced admission
system does not make it possible to admit “the single ‘best’” student.16 But Harvard
engages in difficult judgments to determine the students it deems best qualified
every year.
Moreover, when using as geographic units the 33 College Board Neighborhood
Clusters that I employ in my simulations, Harvard could pick roughly the 50 best
enrolled students from each cluster, rather than “the single best.”
Finally, if Harvard believes that such a commitment to geographic diversity is too
constraining, it is possible, instead, to achieve racial, ethnic, and socioeconomic
diversity and to maintain high standards, through a race-neutral system that avoids
a place-based element. I model such approaches in Simulations 6 and 7.
4.

The Committee Incorrectly Rejects Socioeconomic Preferences Because
They May Risk Undermining Harvard’s Diversity Goals.

Although many members of the public may see African-American and Hispanic
students who have overcome economic obstacles as especially worthy of
consideration, the Committee raises a concern about a system “in which many of the
non-White students would come from modest socioeconomic circumstances.”17
This approach, the Committee says, could “undermin[e] rather than advanc[e]
Harvard’s diversity-related educational objectives.”18
A close examination of the data, however, suggest that Harvard’s student body is
hardly lacking in advantaged underrepresented minority students, nor would it be
so under a system of socioeconomic preferences.
Harvard admissions officers tag as “disadvantaged” students who come from
families with annual incomes below $80,000 or whose parents lack a four-year
college degree.19 In other words, this group includes not only students who might
conventionally be thought of as disadvantaged but also many students from middleclass families. Roughly speaking, about two-thirds of all Americans would be
characterized by Harvard as “disadvantaged.”20

16 HARV0009720.
17 HARV00097323.
18 HARV00097323.
19 Kahlenberg Report, p. 46.
20 Kahlenberg Report, p. 22.

4

Because African-American and Hispanic students are more likely to be
disadvantaged than the average American, substantially more than two-thirds are
likely to be so categorized by Harvard. Indeed, according to the Committee, fully
70% of African Americans and 60% of Hispanics nationally are disadvantaged
enough to be eligible for zero parental contribution under Harvard’s financial aid
program (earning less than $65,000 annually).21 An even higher percentage of these
students, therefore, would qualify for the disadvantaged tag (which has an $80,000
cut off and also includes families making more than $80,000 where the parents lack
a four year college degree).
While the vast majority of African-American and Hispanic students nationally would
be considered disadvantaged by Harvard’s reckoning, in the current admitted class
of 2019, only 29% of underrepresented minorities were tagged as disadvantaged.
This number would rise to approach the national averages under the race-neutral
alternatives I outlined in my report. In Simulation 4, for example, 21% of
underrepresented minority students would be advantaged, and 79% disadvantaged.
In other words, Harvard would move from its current system, which is tilted heavily
toward relatively privileged underrepresented minority students, to a situation
where the socioeconomic breakdown of underrepresented minority students would
be much closer to the national average. It thus would increase socioeconomic
diversity both within racial groups and more generally at Harvard.
5.

The Committee Disingenuously Raises New Concerns about Expanding
Financial Aid.

For the first time in this litigation, the Committee raises a new concern: that
“Harvard could not significantly increase its financial aid budget without detracting
from other commitments.”22
This is an audacious claim for the nation’s richest university, whose $37 billion
endowment exceeds the GDP of more than half the countries in the world.23 This
new claim of financial inadequacy also rings hollow in light of the earlier testimony
of leading Harvard officials. Financial Aid director Sarah Donahue testified that
Harvard has no maximum or cap on the amount of money available for financial aid.
She said that it would not present a problem if the number of students eligible for
the Harvard Financial Aid Initiative doubled (from roughly 25% of the class to
50%). Dean Fitzsimmons testified that Harvard’s charge is to admit “the best, most
interesting students” and that there is no constraint on the number of students
Harvard can admit through its financial aid initiative.24

21 HARV00097319.
22 HARV00097320.
23 Kahlenberg Report, p. 31.
24 Kahlenberg Report, p. 30.

5

Dated: April 26, 2018

/s/Richard D. Kahlenberg
Richard D. Kahlenberg

6