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 39

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

STUDENTS FOR FAIR ADMISSIONS, INC.,
Plaintiff,
v.

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

PRESIDENT AND FELLOWS OF HARVARD
COLLEGE (HARVARD CORPORATION),
Defendant.
PLAINTIFF’S OBJECTIONS AND RESPONSES TO
DEFENDANTS’ SECOND SET OF INTERROGATORIES
Pursuant to Rule 33 of the Federal Rules of Civil Procedure and Local Rule 33,
Plaintiff Students for Fair Admissions, Inc. (“SFFA”) submits the following objections
and responses to Defendant, President and Fellows of Harvard College’s (“Harvard”)
Second Set of Interrogatories, dated May 19, 2017.
GENERAL OBJECTIONS
SFFA makes the following general objections to Harvard’s Second Set of
Interrogatories, which apply to each interrogatory regardless of whether the general
objections are specifically incorporated into the specific objections below.
1.

SFFA objects to each interrogatory to the extent it calls for information

that is protected from discovery by the attorney-client privilege or the work product
doctrine, or that are otherwise protected from disclosure under the Federal Rules of Civil
Procedure, the Federal Rules of Evidence, and the relevant statutory or case law.

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Smith Tr. at 63-64; Khurana Tr. 102-109. Likewise, Harvard has not given any serious
consideration to race-neutral alternatives examined by other schools, such as a top 10%
plan, or using a holistic admissions process that does not consider the use of race. See,
e.g., McGrath Tr. 255-57; Smith Tr. 123-125; Faust Tr. 52.
Moreover, it is apparent that Harvard has myriad race-neutral alternatives at its
disposal that could achieve student body diversity without the use of racial
classifications. Such race-neutral alternatives include, but are not limited to, (1)
increasing the use of non-race-based preferences, such as socioeconomic and/or
geographic factors, in its admissions process; (2) increasing the use of financial aid,
scholarships, and recruitment to attract and enroll minority applicants; and (3)
eliminating admissions policies and practices that operate to the disadvantage of
minority applicants. See, e.g., Harvard’s Electronic Database of Applicants;
HARV00005694; HARV000069119; HARV00032626-32685.
INTERROGATORY NO. 14
If you contend that Harvard engages in intentional or invidious discrimination
against Asian-American applicants in its undergraduate admissions process,
state the basis for the contention and identify with particularity all facts
supporting your contention.
RESPONSE TO INTERROGATORY NO. 14
SFFA objects to this interrogatory as overly broad, unduly burdensome, and not
proportional to the needs of this case. SFFA further objects to this interrogatory to the
extent it seeks privileged information, including information protected from disclosure
by the attorney-client or attorney work product privileges. SFFA furthers object to this
interrogatory to the extent it seeks to impose any burdens beyond the scope of the
Federal Rules of Civil Procedure or the local rules, including the fact that this request is

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premature because discovery remains ongoing and SFFA is not yet required to serve its
expert reports. SFFA further objects to this interrogatory to the extent it is overbroad
and unduly burdensome because it seeks a response that identifies “all facts” supporting
its contention.
Subject to and without waiving its objections, SFFA responds as follows:
Harvard has intentionally discriminated against Asian-American applicants for
admission on the basis of race or ethnicity based on, inter alia, prejudicial and
stereotypical assumptions about them. Evidence produced in this case to date indicates
that Harvard’s admissions system has a disproportionately negative effect on AsianAmerican applicants for admission that is not explainable on grounds other than
intentional discrimination on the basis of race or ethnicity. See, e.g., HARV0003171831724; HARV00065741-65757; HARV00023548-23555; HARV00030303; Harvard’s
Electronic Database of Applicants.
Other evidence of intentional discrimination includes testimony from Harvard’s
witnesses confirming they were not bothered or concerned about repeated allegations of
discrimination against Asian-Americans by the admissions office. See, e.g., Faust Tr.
228-31; Khurana Tr. 257-60. Indeed, Harvard officials also have made racially
stereotypical statements assuming that, as a group, Asian Americans all have the same
academic interests, experiences, and personal attributes and that Asian Americans, as a
group, lack certain qualities that Harvard values. See, e.g., HARV00077139. Harvard
officials have also made and tolerated statements indicative of prejudicial and
stereotypical views about Asian-American applicants for admission. See, e.g.,
HARV00032339; HARV00029940-45. These statements and other evidence arise in the

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context of an admissions process that has historically been used to limit the numbers of
other disfavored groups who were qualified for admission to Harvard. See, e.g.,
Khurana Tr. 125-27; McGrath Tr. 289-290.
INTERROGATORY NO. 15
If you contend that Harvard’s undergraduate admissions process considers race
as the defining feature of an application rather than one factor within the full
context of the entire application, state the basis for the contention and identify
with particularity all facts supporting your contention.
RESPONSE TO INTERROGATORY NO. 15
SFFA objects to this interrogatory as overly broad, unduly burdensome, and not
proportional to the needs of this case. SFFA further objects to this interrogatory to the
extent it seeks to improperly shift Harvard’s burden to SFFA. Specifically, it is
Harvard’s burden (and not SFFA’s burden) to demonstrate that its admitted use of racial
classifications satisfies strict scrutiny and are narrowly tailored to achieve a compelling
interest in the alleged educational benefits of diversity it espouses. SFFA further objects
to this interrogatory to the extent it seeks privileged information, including information
protected from disclosure by the attorney-client or attorney work product privileges.
SFFA furthers object to this interrogatory to the extent it seeks to impose any burdens
beyond the scope of the Federal Rules of Civil Procedure or the local rules, including
the fact that this request is premature because discovery remains ongoing and SFFA is
not yet required to serve its expert reports. SFFA further objects to this interrogatory to
the extent it is overbroad and unduly burdensome because it seeks a response that
identifies “all facts” supporting its contention.
Subject to and without waiving its objections, SFFA responds as follows:
Harvard does not evaluate each applicant for admission as an individual. Instead, race or

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Signed under the penalties of perjury this 20th day of July, 2017.

_____________________________
Edward Blum
on behalf of Students For Fair Admissions, Inc.

As to Objections:
/s/ William S. Consovoy

Paul M. Sanford BBO
#566318
Benjamin C. Caldwell BBO
#675061
BURNS & LEVINSON LLP
One Citizens Plaza, Suite
1100 Providence, RI 02903
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]

William S. Consovoy
Thomas R. McCarthy
J. Michael Connolly
CONSOVOY MCCARTHY PARK PLLC
3033 Wilson Boulevard, Suite 700
Arlington, Virginia 22201
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
Patrick Strawbridge
BBO #678274
CONSOVOY MCCARTHY PARK PLLC
Ten Post Office Square
Boston, MA 02109
Tel: [phone]
[e-mail]

Dated: July 20, 2017

Counsel for Plaintiff Students for Fair
Admissions, Inc.

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