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

Filing 440

MEMORANDUM in Support re 417 MOTION for Summary Judgment filed by M. B., K. C., Sarah Cole, Y. D., G. E., A. G., I. G., R. H., J. L., Fadhal Moore, Arjini Kumari Nawal, R. S., Itzel Vasquez-Rodriguez, Keyanna Wigglesworth. (Attachments: # 1 Exhibit Student Declarations)(Culleen, Lawrence)

UNITED STATES DISTRICT COURT FOR
THE DISTRICT COURT 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),

Defendant.

MEMORANDUM OF AMICI CURIAE IN SUPPORT OF DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT ON REMAINING COUNTS II, III, V

TABLE OF CONTENTS
Page
INTRODUCTION AND SUMMARY OF ARGUMENT ............................................................. 1
INTEREST OF AMICI ................................................................................................................... 3
ARGUMENT .................................................................................................................................. 7
I.

Harvard Is Entitled to Consider Race in Admissions to Pursue the
Benefits of a Racially Diverse Student Body Across Multiple
Dimensions. ............................................................................................................ 7
A.

B.

II.

Diversity in Higher Education Remains Compelling—
Indeed, Vital—in Today’s Society Largely Separated by
Race............................................................................................................. 7
Diversity—and Racial Diversity in Particular—Prevents
Racial Isolation and Produces Distinct Educational
Benefits. ...................................................................................................... 9

Harvard’s Holistic Admissions Review Properly Views Race as
One of Many Factors That Contextualizes an Applicant’s Past
Achievements and Future Potential. ..................................................................... 16
A.

B.
III.

Race and Racial Barriers Remain Factors in American Life
Which Cannot and Should Not Be Ignored in the
Admissions Process. ................................................................................. 16
Harvard Flexibly Considers Race, Whereby Race is Not the
Predominant Factor in Admissions. .......................................................... 20

Race-Conscious Admissions Policies Remain Necessary to
Support the Type and Level of Demographic Representation which
Will Produce Educational Benefits for All Students. ......................................... 211
A.

SFFA Admits Its “Race-Neutral” Alternatives Would
Reduce the Admission of African Americans at Harvard,
Preventing Harvard from Harnessing the Full Benefits of
Student Diversity. ..................................................................................... 22

B.

When Highly Selective Institutions Eliminate Holistic
Admissions Students of Color Are Negatively Impacted. ........................ 25
1.

Decreased Enrollment of Students of Color ................................. 25

2.

Increased Racial Isolation ............................................................. 28

CONCLUSION ............................................................................................................................. 30
i

TABLE OF AUTHORITIES

Cases:

Page(s):

Fisher v. Univ. of Texas at Austin,
136 S. Ct. 2198 (2016) ..................................................................................................... passim
Fisher v. Univ. of Texas at Austin,
570 U.S. 297 (2013) ...............................................................................................................7, 9
Gratz v. Bollinger,
539 U.S. 244 (2003) ...................................................................................................................9
Grutter v. Bollinger,
539 U.S. 306 (2003) ......................................................................................................... passim
Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1,
551 U.S. 701 (207) .....................................................................................................................2
Regents of Univ. of California v. Bakke,
438 U.S. 265 (1978) ......................................................................................................... passim
Texas Dep’t of Hous. & Cmty. Affairs,
135 S. Ct. 2507 (2015) ...............................................................................................................8

Other Authorities
Amana Lewis, Mark Chesler, and Tyrone A. Forman, The Impact of ‘Colorblind’
Ideologies on Students of Color: Intergroup Relations at a Predominantly
White University, 69 J. of Negro Educ. 74 (2000) ...................................................................15
Angel L. Harris and Marta Tienda, Hispanics in higher education and the Texas
top 10% law, 4 Race and Social Problems 57 (2012) ..............................................................27
Angela Locks, Sylvia Hurtado, Nicholas Bowman, and Leticia Oseguera,
Extending Notions of Campus Climate and Diversity to Students’ Transition to
College, 31 The Review of Higher Education 257 (2008). .......................................................9
Annie E. Casey Found., Race for Results: Building a Path to Opportunity for All
Children, Kids Count Policy Report (2014),
http://www.aecf.org/m/resourcedoc/AECF-RaceforResults-2014.pdf ....................................17

ii

Anthony L. Antonio, Mitchell J. Chang, Kenji Hakuta, David A. Kenny, Shana
Levin, Jeffrey F. Milem, Effects of Racial Diversity on Complex Thinking in
College Students, 15 Psychological Science 507 (2004) .........................................................14
Anthony L. Antonio, The role of interracial interaction in the development of
leadership skills and cultural knowledge and understanding, 42 Research in
Higher Education 593 (2001)...................................................................................................12
Catherine Horn and Stella M. Flores, Percent Plans in College Admissions: A
Comparative Analysis of Three States’ Experiences 42, The Civil Rights
Project at Harvard University (2003) .......................................................................................26
Dalton Conley, What Is the Difference Between Race and Ethnicity?, Race: The
Power of an Illusion, PBS
(2003), https://www.pbs.org/race/000_About/002_04-experts-03-02.htm ...............................1
David Love, “Black and Brown Students Are Denied Access to Advanced
Placement Courses, the New Jim Crow in Education,” Atlanta Black Star
(June 4, 2018), http://atlantablackstar.com/2018/06/04/black-and-brownstudents-are-denied-access-to-advanced-placement-courses-the-new-jimcrow-in-education/ ...................................................................................................................18
Eleni Karageorge, The Unexplainable, Growing Black-White Wage Gap, Bureau
of Labor Statistics (Nov. 2017) ................................................................................................17
Elise Boddie, Commentary on Fisher: The Importance of Diversity Within
Diversity, SCOTUSBlog (Oct. 11, 2012),
http://www.scotusblog.com/2012/10/commentary-on-fisher-the-importanceof-diversity-within-diversity/ ...................................................................................................23
Elizabeth Y. Sun, Not Just “Asian,” Harvard Crimson (Aug. 9, 2017),
https://www.thecrimson.com/article/2017/8/9/sun-not-just-asian/ ..........................................29
Jay Rosner, How the SAT Creates “Built-In Headwinds,” Kidder and Rosner, 43
Santa Clara L. Rev. 131 (2002) ...............................................................................................18
Jeremy Ashkenas, Haeyoun Park, and Adam Pearce, Even with Affirmative
Action, Blacks and Hispanics Are More Underrepresented at Top Colleges
Than 35 Years Ago, N.Y. Times (Aug. 24, 2017), https://nyti.ms/2w0BE08 .........................17
Jerry Kang, Negative Action Against Asian Americans: The Internal Instability of
Dworkin’s Defense of Affirmative Action, 31 Harv. C.R.-C.L. L. Rev. 1 (1996) ......................3
Jiali Luo and David Jamieson-Drake, A Retrospective Assessment of the
Educational Benefits of Interaction Across Racial Boundaries, 50 J. of
College Student Development 67 (2009) .................................................................................11

iii

Julie S. Chung and Alexander Z. Zhang, Students for Fair Admissions and
Harvard Both Got It Wrong, Harvard Crimson (July 18, 2018),
https://www.thecrimson.com/article/2018/7/18/chung-zhang-sffa-harvardwrong/ ......................................................................................................................................29
Kristin Davies, Linda Tropp, Arthur Aron, Thomas Pettigrew, and Stephen
Wright, Cross-Group Friendships and Intergroup Attitudes, 15 Personality
and Social Psychology 332 (2011) ............................................................................................9
Lincoln Quillian, Devah Pager,, Ole Hexel,, and Arnfinn H. Midtbøen, “Metaanalysis of field experiments shows no change in racial discrimination in
hiring over time,” PNAS (Aug. 8, 2017),
http://www.pnas.org/content/pnas/early/2017/09/11/1706255114.full.pdf .............................16
Maria Cancian, Race-Based Versus Class-Based Affirmative Action in College
Admissions, 17 J. of Policy Analysis and Management 94 (1998) ..........................................25
Mariette Berndsen, Russell Spears, Joop van der Pligt, and Craig McGarty,
Illusory Correlation and Stereotype Formation: Making Sense of Group
Differences and Cognitive Biases, Stereotypes as Explanations (2002)..................................15
Mario L. Barnes, Erwin Chemerinsky, and Angela Onwuachi-Willig, Judging
Opportunity Lost: Assessing the Viability of Race-Based Affirmative Action
After Fisher v. University of Texas, 62 UCLA L. Rev. 272 (2015) ...................................19, 25
Mark E. Engberg and Sylvia Hurtado, Developing Pluralistic Skills and
Dispositions in College: Examining Racial/Ethnic Group Differences, 82 J.
Higher Educ. 416 (2011)..........................................................................................................13
Mark C. Long, College Applications and the Effect of Affirmative Action, 121
Journal of Econometrics 319 (2004) ........................................................................................26
Mark C. Long and Marta Tienda, Winners and Losers: Changes in Texas
University Admissions post-Hopwood, 30 Educational Evaluation and Policy
Analysis 255 (2008) .................................................................................................................27
Meike Bonefeld and Oliver Dickhäuser, “(Biased) Grading of Students’
Performance: Students’ Names, Performance Level, and Implicit Attitudes,”
Frontiers in Psychology (May 9, 2018),
https://www.frontiersin.org/articles/10.3389/fpsyg.2018.00481/full#B46 ..............................18
Mitchell J. Chang, Does Racial Diversity Matter?: The Educational Impact of a
Racially Diverse Undergraduate Population, 40 J. of College Student
Development 377 (1999) .........................................................................................................10

iv

Mitchell J. Chang, M. Seltzer, and J. Kim, Diversity of Opinions Among Entering
College Students: Does Race Matter?, Research paper presented at the
National Academy of Education Annual Meeting, Toronto, Canada (2002) ..........................14
Mitchell J. Chang, Nida Denson, Victor Saenz, and Kimberly Misa, The
Educational Benefits of Sustaining Cross-Racial Interaction Among
Undergraduates, 77 J. of Higher Educ. 430 (2006) ................................................................11
Nida Denson and Mitchell Chang, Racial Diversity Matters: The Impact of
Diversity-Related Student Engagement and Institutional Context, 46 Amer.
Educ. Research J. 322 (2009) ..................................................................................................11
Nida Denson and Shirley Zhang, The Impact of Student Experiences with
Diversity on Developing Graduate Attributes, 35 Studies in Higher Educ. 529
(2010) .......................................................................................................................................11
Nisha Gottfredson, Abigail T. Panter, Charles E. Daye, Walter F. Allen, and
Linda F. Wightman, The Effects of Educational Diversity in a National
Sample of Law Students: Fitting Multilevel Latent Variable Models in Data
with Categorical Indicators, 44 Multivariate Behavioral Research 305 (2009) .......................9
OiYan A. Poon, Do Asian Americans Benefit From Race-Blind College
Admissions Policies?, National Commission on Asian American and Pacific
Islander Research in Education 3 (2017),
https://files.eric.ed.gov/fulltext/ED573713.pdf .......................................................................27
Patricia Gurin, Eric L. Dey, Sylvia Hurtado, and Gerald Gurin, Diversity and
Higher Education: Theory and Impact on Educational Outcomes, 72 Harv.
Educ. Rev. 330 (2002) .............................................................................................................13
Patricia Odell, Kathleen Korgen, and Gabe Wang, Cross-Racial Friendships and
Social Distance between Racial Groups on a College Campus, 29 Innovative
Higher Educ. 291 (2005)............................................................................................................9
Paul Jargowsky, “Concentration of Poverty in the New Millennium: Changes in
Prevalence, Composition, and Location of High Poverty Neighborhoods,”
Century Foundation and Rutgers Center for Urban Research and Education
(Dec. 2013) ..............................................................................................................................17
Peter Salovey, Yale’s Commitment to Equity and Inclusion (May 10, 2018),
https://news.yale.edu/2018/05/10/yales-commitment-equity-and-inclusion; ............................9
Raj Chetty, Nathaniel Hendren, Maggie R. Jones, and Sonya R. Porter, “Race and
Economic Opportunity in the United States: An Intergenerational
Perspective,” Equality of Opportunity (Mar. 2018), http://www.equality-ofopportunity.org/assets/documents/race_paper.pdf ...................................................................16

v

Rakesh Kochhar and Anthony Cilluffo, Income Inequality in the U.S. Is Rising
Most Rapidly Among Asians, Pew Research Center (July 12, 2018),
http://www.pewsocialtrends.org/2018/07/12/income-inequality-in-the-u-s-isrising-most-rapidly-among-asians/ ..........................................................................................29
Rebecca L. Stotzer and Emily Hossellman, Hate Crimes on Campus:
Racial/Ethnic Diversity and Campus Safety, 27 J. Interpersonal Violence
644 (2012) ................................................................................................................................14
Samuel D. Museus and Julie J. Park, The Continuing Significance of Racism in
the Lives of Asian American College Students, 56 J. College Student Dev. 551
(2015) .......................................................................................................................................14
Samuel Museus, Uma Jayakumar, and Thomas Robinson, Modeling Racial
Differences in the Effects of Racial Representation on Two-Year College
Student Success, 13 College Student Retention 549 (2012) ....................................................15
Saul Geiser, “Norm-Referenced Tests and Race-Blind Admissions: The Case for
Eliminating the SAT and ACT at the University of California,” UC Berkley
CSHE 15.17 (Dec. 2017) .........................................................................................................18
Scott Page, The Diversity Bonus: How Great Teams Pay Off in the Knowledge
Economy (New Jersey: Princeton Univ. Press 2017)...............................................................15
Sean F. Reardon, Rachel Baker, and Daniel Kalsik, Race, Income and Enrollment
Patterns in Highly Selective Colleges 1982-2004, Center for Education Policy
Analysis, Stanford University (2012) ......................................................................................26
Sharon Fries-Britt and Kimberly Griffin, The Black Box: How High-Achieving
Blacks Resist Stereotypes About Black Americans, 48 J. of College Student
Development 509 (2007) .........................................................................................................15
Thomas Pettigrew and Linda R. Tropp, A Meta-Analytic Test of Intergroup
Contact Theory, 90 J. of Personality and Social Psychology 751 (2006)..................................9
William G. Bowen and Derek Bok, The Shape of the River: Long-Term
Consequences of Considering Race in College and University Admissions
(1998) .......................................................................................................................................12
William C. Kidder, How Workable are Class-Based and Race-Neutral
Alternatives at Leading American Universities?, 64 UCLA L. Rev. Disc. 100
(2016) .......................................................................................................................................25
William C. Kidder, Misshaping the River: Proposition 209 and Lessons for the
Fisher Case, 39 J. of College and Univ. Law 53 (2013),
http://ssrn.com/abstract=2123653 ............................................................................................28

vi

William C. Kidder, Two Decades After the Affirmative Action Ban: Evaluating
the University of California’s Race-Neutral Efforts (Oct. 2015),
https://www.ets.org/Media/Research/pdf/kidder_paper.pdf ..............................................27, 28
William C. Kidder, Situating Asian Pacific Americans in the Law School
Affirmative Action Debate: Empirical Facts About Thernstrom’s Rhetorical
Acts, 7 Asian L.J. 29 (2000).......................................................................................................3
The Campaign for College Opportunity, The State of Higher Education in
California (Sept. 2015), http://collegecampaign.org/wpcontent/uploads/2015/09/2015-State-of-Higher-Education_AANHPI2.pdf .....................18, 30
Harvard University Presidential Task Force on Inclusions and Belonging,
“Pursuing Excellence on a Foundation of Inclusion,”
http://inclusionandbelongingtaskforce.harvard.edu/files/inclusion/files/harvard
_inclusion_belonging_task_force_final_report .......................................................................23
Leadership Conference Education Fund, “Justice on Trial: Racial Disparities in
the American Criminal Justice System” (2000),
http://archives.civilrights.org/publications/justice-on-trial/ .....................................................17
NYU CARE, Asian Americans and the Benefits of Campus Diversity: What the
Research Says (2012) ...............................................................................................................13
U.S. Dep’t of Educ. Off. for Civil Rights, “Data Snapshot: College and Career
Readiness,” Civil Rights Data Collection (Mar. 2014),
https://www2.ed.gov/about/offices/list/ocr/docs/crdc-college-and-careerreadiness-snapshot.pdf .............................................................................................................18
University of Michigan, Diversity, Equity, and Inclusion: Strategic Plan Progress
Report (2017), https://diversity.umich.edu/wpcontent/uploads/2017/11/Diversity_Equity_and_Inclusion_Year_One_Progres
s_Report.pdf. ..............................................................................................................................9
“I, Too, Am Harvard,” Tumblr (Aug. 7, 2014), http://itooamharvard.tumblr.com/ ......................28

vii

INTRODUCTION AND SUMMARY OF ARGUMENT
At the heart of this lawsuit is whether Harvard has the academic freedom to value racial
diversity in ways in which our country has fallen short: bridging racial divides and instilling
greater cross-cultural understanding among its talented student body of future leaders. Plaintiffs’
lawsuit uses Asian Americans as a cover to force every institution of higher education in the
United States to ignore the reality of a society where certain ethno-racial minorities, Asian
Americans among them, encounter structural racism and implicit bias because of their identity.1
Amici are a diverse group of Asian-American, Black, Latino, Native American, and
Pacific Islander students who seek to protect Harvard’s freedom to consider race in admissions to
the full extent allowed by law (“Students”). As a racially diverse cohort of applicants, current
students, and alumni, Students2 stand in solidarity to support Harvard’s use of holistic admissions
program and right to consider race to the full extent allowed by law. Students contend that
Harvard needs to do more, not less, to ensure that underrepresented groups—Black, Latinos,
Native Americans, Pacific Islanders, and various subgroups of Asian Americans (such as
Vietnamese and Hmong)—enroll in greater numbers to fully harness the educational benefits of
diversity. While Students desire even greater diversity, there is no question that Harvard’s raceconscious admissions policy is constitutional.
1

Students use the term “ethno-racial” to recognize that an individual’s identity arises out of both
race and ethnicity, with the former generally referring to traits like skin color and the latter
referring to shared customs, culture, and history. See, e.g., Dalton Conley, What Is the
Difference Between Race and Ethnicity?, Race: The Power of an Illusion, PBS
(2003), https://www.pbs.org/race/000_About/002_04-experts-03-02.htm.
2
Students submit this 30-page brief along with their declarations in accordance with this Court’s
Order authorizing Students’ participation in this lawsuit. Memorandum and Order on Proposed
Defendant-Intervenors’ Motion to Intervene, Dkt. 52 at 23 (June 15, 2015). Consistent with the
Order, Students also intend to file a motion opposing SFFA’s Motion For Summary Judgment
and to participate in any oral argument relating to summary judgment motions. If the case
proceeds to trial, Students anticipate filing a motion for limited participation to develop a full
record in defense of race-conscious admissions.

1

Students’ brief provides the Court with information in three principal areas.

First,

Students affirm that ethno-racial diversity produces distinct benefits, including promoting
interactions between students of different racial backgrounds that heighten cross-racial
understanding, breaking down stereotypes, and enriching students’ understanding of perspectives
different than their own. See Grutter v. Bollinger, 539 U.S. 306, 330 (2003) (“The[] benefits [of
diversity] are substantial.”).

Increased enrollment of underrepresented groups also helps

alleviate the ethno-racial isolation experienced by these students at Harvard.

See Parents

Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 798 (2007) (Kennedy, J.,
concurring in part) (“[A] compelling interest exists in avoiding racial isolation[.]”).
Second, Students explain how Harvard’s current affirmative consideration of race
complies with the parameters set forth by the Supreme Court: it is individualized and flexibly
recognizes all forms of diversity and does not treat race as a predominant factor for any
applicant. It serves to appreciate, and counterbalance, the pervasive inequities that persist across
our society with regard to race, class, and the intersection between them.
Third, Students demonstrate that Harvard’s interest in promoting greater representation
of, and diversity within, students of color compels the continued consideration of race in
Harvard’s holistic, individualized admissions process, for at least two reasons. First, as SFFA’s
expert concedes, any “race-neutral” alternative would significantly reduce the admission of
African Americans, to the detriment of both Black and non-Black students. Second, experience
and prevailing research strongly suggest that when highly selective institutions stop considering
race, all students of color—including Asian Americans—lose out and intra-racial group diversity
declines.

2

Students would oppose any admissions system that intentionally seeks to negatively
suppress any racial group. But, as Students will explain in their brief to be filed in August, this
type of suppressive “negative action” is conceptually distinct from an affirmative race-conscious
admissions program that flexibly considers race to better contextualize an applicant’s prior
achievements and potential contributions.3 There is simply no causal link in the record between
Harvard’s individualized consideration of race to promote diversity and any bias against AsianAmerican students.
Accordingly, Students believe the record clearly supports summary judgment on Counts
II, III, and V4 in favor of Harvard’s individualized consideration of race in a manner that
promotes greater representation of, and diversity within, students of color admitted to one of our
nation’s most elite training grounds for educational opportunities and future leadership.
INTEREST OF AMICI
Students are a racially and ethnically diverse group that includes prospective students,
current students, and alumni of Harvard, all of whom are intimately impacted by Harvard’s raceconscious policies. Students vary along numerous various dimensions: representing no less than
8 different ethnicities, 8 different class years, and 13 different academic concentrations. But
Students share a common interest in defending Harvard’s freedom to narrowly consider race for
the purpose of achieving greater levels of diversity on Harvard’s campus.
Amici Sarah Cole, Fadhal Moore, Arjini Kumari Nawal, Itzel Libertad VasquezRodriguez, and Keyanna Wigglesworth were all students at Harvard when this action was filed
3

See William C. Kidder, Situating Asian Pacific Americans in the Law School Affirmative Action
Debate: Empirical Facts About Thernstrom’s Rhetorical Acts, 7 Asian L.J. 29, 33, 60 (2000);
Jerry Kang, Negative Action Against Asian Americans: The Internal Instability of Dworkin’s
Defense of Affirmative Action, 31 Harv. C.R.-C.L. L. Rev. 1, 3-4 (1996).
4
Students are not addressing Count I in this brief but may do so in subsequent briefs.

3

in 2014.5

Now graduates, these Students identify with ethno-racial subgroups that have

historically been underrepresented and marginalized at Harvard. While diverse in their racial
backgrounds and academic interests, they all believe ethno-racial diversity significantly impacted
their learning inside and outside of the classroom. Based on their experiences, they all desire a
greater presence of underrepresented groups on campus.

Three graduate amici submitted

supplemental declarations to inform the arguments raised at summary judgment.6 Itzel Libertad
Vasquez-Rodriguez, who identifies as an indigenous Mexican-American or “Xicana,” believes
that her ethno-racial identity “shaped my perspective and made me the critical thinker I am
today.” (Itzel Libertad Vasquez-Rodriguez Supp. Decl. at ¶ 5.) Reflecting on her time at
Harvard, Vasquez-Rodriguez found that significant representation of people of color “was
critical to persist and excel at Harvard despite racial hostilities on campus that were both overt
and subtle.” (Id. at ¶ 21.) Sarah Cole, who identifies as a Black American, is critical of the
plaintiffs’ efforts to eliminate race from holistic admissions, noting, “to try to not see my race is
to try to not see me at all.” (Sarah Cole Supp. Decl. at ¶ 6.) Cole desires a more racially diverse
Harvard “that not only sharpens folks’ critical thinking, but also develops their capacity for
empathy and regard for others by making its campus a space where the ‘others’ are allowed to
safely exist and learn and teach.” (Id. at ¶ 11.) Fadhal Moore, who identifies as AfricanAmerican, views the presence of same-race peers as critical to his success at Harvard, noting
how his peers, “who feel more like family than anything at this point, ended up actually helping

5

Sarah Cole Decl., Dkt. 31, Ex. 1.10; Fadhal Moore Decl., Dkt. 31, Ex. 1.11; Arjini Kumari
Nawal Decl., Dkt. 31, Ex. 1.12; Itzel Libertad Vasquez-Rodriguez Decl., Dkt. 31, Ex. 1.13;
Keyanna Wigglesworth Decl., Dkt. 31, Ex. 1.14.
6
Sarah Cole Supp. Decl.; Itzel Libertad Vasquez-Rodriguez Supp. Decl.; Fadhal Moore Supp.
Decl.

4

me learn many of the cultural cues necessary to navigate a white world with which I and many of
my peers were so unfamiliar.” (Fadhal Moore Supp. Decl. at ¶ 5.)
Amici Y.Z., D.L., T.D., J.L., A.Z., A.A., and S.C. are all of Asian heritage but differ in
terms of their ethnicities, their families’ income, their SAT scores, and their families’
immigration histories. They are all current students at Harvard, and they all attest that they
benefit from Harvard’s racial diversity. Y.Z., who identifies as Chinese American, immigrated
from China when Y.Z. was four, grew up in an upper-middle class suburb, and appreciates how
Harvard’s racial diversity has provided meaningful opportunities to “confront my own prejudices
and privilege.” (Y.Z. Decl. at ¶ 6.) D.L., who identifies as Chinese American, spoke about the
dangers of essentializing Asian Americans as “model minorities” while interviewing for Harvard
and believes Harvard’s admissions office favorably viewed his sensitivity to race and
discrimination. (D.L. Decl. at ¶ 5.) T.D., who identifies as Vietnamese American, moved to the
United States at age eight, lived in a working-class neighborhood, graduated as the valedictorian
of his high school, and was admitted to Harvard in spite of relatively low SAT scores. (T.D.
Decl.) J.L. was born in Korea, grew up in Texas, and felt stereotyped by peers as “a hard
working Asian.” (J.L. Decl. at ¶ 3.) J.L. freely discussed his “intersecting identities” in his
Harvard application essay “with a heavy emphasis on his Korean identity.” (Id. at ¶ 5.) At
Harvard, J.L. is engaged in research on racism, prejudice, and intersectionality. A.Z., who
identifies as Chinese American, was routinely “teased for being Asian” while growing up in a
predominately white suburb but now at Harvard “interact[s] with a much more diverse group of
peers” and “feel[s] much more comfortable interacting with and working with people of different
backgrounds.” (A.Z. Decl. at ¶¶ 4, 7.) A.A., who identifies as Chinese American and queer,
believes Harvard admitted them despite grades that were “not the best” because their application

5

reflected their passion as a person “and part of that includes [A.A.’s] ethnic and racial identity.”
(A.A. Decl. at ¶¶ 8-9.) A.A. observes that Harvard’s campus is “very diverse in some ways” but
“still has a long way to go when it comes to diversity.” (Id. at ¶¶ 13, 16.) S.C., who identifies as
Chinese American, grew up in a one-room San Francisco apartment and, to this day, serves as
her parents’ “translators.” (S.C. Decl. at ¶¶ 3, 5.) S.C. ignored advice that her “Asian immigrant
story” was overdone and her SAT scores too low for Harvard and wrote about growing up in an
immigrant family and her passion for social justice. (Id. at ¶ 5.) S.C. believes she benefited
from race-conscious admissions because it “allowed the College to look at me as a whole person
and view my qualifications in the context of both my class and race.” (Id. at ¶ 6.)
Amici S.N., M.E., and M.A. plan to apply to Harvard and identify with historically
marginalized minority groups (African American, Native American, and Pacific Islander,
respectively). S.N. lives in a community that has experienced racially-motivated hate crimes.
(S.N. Decl. at ¶ 5.) S.N. has exemplary qualifications and intends to apply to Harvard, in part,
because S.N. wishes to attend a college that values diversity. (Id. at ¶ 13.) M.E. has cultivated
strong ties to Native culture, dancing competitively at powwows and joining the Native
American Club at a previous school. (M.E. Decl. at ¶¶ 10-11.) M.E. intends to apply to
Harvard, but intends to select a college that has an active Native American community. (Id. at ¶¶
12, 14.) M.A. reflects that their “Pacific Islander and biracial identity” has already caused them
to “see that race is constructed and I can bring that important perspective to the college campus
or dorm room.” (M.A. Decl., Dkt. 230, Ex. 2 at ¶ 10.) Attending a diverse college is important
for M.A. because M.A. “would feel very isolated” without such diversity. (Id. at ¶ 9.) S.N.,
M.E., and M.A. are concerned that the relief sought by SFFA may limit access for such

6

underrepresented groups and result in an educational environment that is even less diverse and
not as welcoming.
From their various vantage points, Students are well-qualified and uniquely positioned to
deepen the Court’s understanding of: (i) the benefits that currently flow to Students based on
Harvard’s pursuit of diversity across various dimensions (ii) Harvard’s current racial climate and
the negative impact of reducing the representation of already underrepresented groups (iii) how
race and ethnicity shaped the Students’ experiences before, during, and after college and,
consequently, how it shaped their application materials and should be considered to appreciate
their accomplishments and potential contributions to Harvard’s campus community and beyond.
ARGUMENT
I.

Harvard Is Entitled to Consider Race in Admissions to Pursue the Benefits of a
Racially Diverse Student Body Across Multiple Dimensions.
A.

Diversity in Higher Education Remains Compelling—Indeed, Vital—in
Today’s Society Largely Separated by Race.

The Supreme Court has long recognized student body diversity as a compelling interest
that justifies race-conscious admissions in higher education. See, e.g., Fisher v. Univ. of Texas at
Austin, 136 S. Ct. 2198, 2210-11 (2016) (“Fisher II”). This interest stems from diversity’s
numerous benefits within the academic environment and, more broadly, for our national progress
and welfare. As recently as 2016, the Supreme Court reaffirmed that a diverse student body
“‘promotes cross-racial understanding, helps to break down racial stereotypes, and enables
students to better understand persons of different races.’” Id. at 2210 (quoting Grutter, 539 U.S.
at 330). It also facilitates “enhanced classroom dialogue and the lessening of racial isolation. . .”
Fisher v. Univ. of Texas at Austin, 570 U.S. 297, 308 (2013) (“Fisher I”). These benefits extend
beyond the college campus by contributing to the broader goal of “preparing students for work
and citizenship” in our extraordinarily diverse society. Grutter, 539 U.S. at 331. As Justice

7

Powell reflected nearly forty years ago in Bakke, nothing less than “the nation’s future depends
upon leaders trained through wide exposure to the ideas and mores of students as diverse as this
Nation of many peoples.” Regents of Univ. of California v. Bakke, 438 U.S. 265, 313 (1978)
(“Bakke”) (internal quotation omitted).
That an ethno-racially diverse group of students have joined together as Students to
champion Harvard’s right to consider race in admissions reflects the profound and continuing
impact of race and ethnicity on a student’s life. This is not an issue we as a country have
resolved: “Much progress remains to be made in our Nation’s continuing struggle against racial
isolation.” Texas Dep’t of Hous. & Cmty. Affairs, 135 S. Ct. 2507, 2525 (2015). A holistic
admissions policy that considers race, like Harvard’s, effectuates such progress by ensuring the
“path to leadership [is] visibly open to talented and qualified individuals of every race and
ethnicity” and by training “our Nation’s leaders” to engage successfully with today’s
increasingly diverse citizenry and challenges. Grutter, 539 U.S. at 331-32.
Harvard agrees that “the need for student-body diversity is even more compelling today
than it was at the time of Bakke and Grutter.”7 Student body diversity is “integral” to Harvard’s
mission because diversity exposes students to “new ideas, new ways of understanding, and new
ways of knowing,”8 and “prepares [Harvard students] to assume leadership roles in the
increasingly pluralistic society.”9 Moreover, Harvard has concluded that a reduction in AfricanAmerican and Hispanic students risks exacerbating “ongoing feelings of isolation and alienation

7

Brief for Harvard University as Amicus Curiae Supporting Respondents at 7, Fisher II, 136 S.
Ct. 2198 (2016).
8
Report of the Committee to Study the Importance of Student Body Diversity, Dkt. 419, Ex. 45
at 8.
9
Id. at 23.

8

among racial minorities in [its] community.”10 Students’ experiences confirm this conclusion
and that Harvard has a principled and legitimate goal of pursuing diversity within its student
body.
B.

Diversity—and Racial Diversity in Particular—Prevents Racial Isolation and
Produces Distinct Educational Benefits.

The benefits of ethno-racial diversity recognized by the Supreme Court11 have long been
confirmed by colleges12 and empirical research.13 These benefits accrue at the individual level
(for minority and non-minority students), the institutional level, and the societal level.
On the individual and institutional level, numerous studies confirm that greater ethnic
diversity provides vital support for underrepresented minorities, including: reducing tokenism
and isolation,14 promoting a sense of belonging,15 and furthering overall student well-being and

10

Report of The Committee to Study Race-Neutral Alternatives, Dkt. 419, Ex. 47 at 9.
See, e.g., Bakke, 438 U.S. at 315-19 (Powell, J., announcing the judgment of the Court);
Grutter, 539 U.S. at 325; Gratz v. Bollinger, 539 U.S. 244, 275-76 (2003); Fisher I, 570 U.S. at
309; Fisher II, 136 S. Ct. at 2210.
12
See, e.g., The President’s Report 1993-1995, Dkt. 419, Ex. 41; Peter Salovey, Yale’s
Commitment to Equity and Inclusion (May 10, 2018), https://news.yale.edu/2018/05/10/yalescommitment-equity-and-inclusion; University of Michigan, Diversity, Equity, and Inclusion:
Strategic Plan Progress Report 2-7 (2017), https://diversity.umich.edu/wpcontent/uploads/2017/11/Diversity_Equity_and_Inclusion_Year_One_Progress_Report.pdf.
13
See, e.g., Kristin Davies, Linda Tropp, Arthur Aron, Thomas Pettigrew, and Stephen Wright,
Cross-Group Friendships and Intergroup Attitudes, 15 Personality and Social Psychology 332,
345 (2011); Nisha Gottfredson, Abigail T. Panter, Charles E. Daye, Walter F. Allen, and Linda
F. Wightman, The Effects of Educational Diversity in a National Sample of Law Students: Fitting
Multilevel Latent Variable Models in Data with Categorical Indicators, 44 Multivariate
Behavioral Research 305, 326 (2009); Thomas Pettigrew and Linda R. Tropp, A Meta-Analytic
Test of Intergroup Contact Theory, 90 J. of Personality and Social Psychology 751, 766 (2006);
Angela Locks, Sylvia Hurtado, Nicholas Bowman, and Leticia Oseguera, Extending Notions of
Campus Climate and Diversity to Students’ Transition to College, 31 The Review of Higher
Education 257, 279 (2008).
14
See Patricia Odell, Kathleen Korgen, and Gabe Wang, Cross-Racial Friendships and Social
Distance between Racial Groups on a College Campus, 29 Innovative Higher Educ. 291, 303
(2005).
15
See Locks et al., supra note 13, at 277.
11

9

retention.16 Students’ experiences demonstrate this firsthand. As Sarah Cole, a Black American
graduate of Harvard (class of 2016), reflected:
I dream of a Harvard experience where I wasn’t the only slavedescendant black person in my philosophy class, or volunteer
program (serving black and brown kids), or teacher preparation
program… It is not sustainable to expect individual students of
color to be the lone workers helping to make their peers (and
superiors) grow less biased.
(Sarah Cole Supp. Decl. at ¶ 10.) Itzel Libertad Vasquez-Rodriguez, an indigenous MexicanAmerican graduate of Harvard (class of 2017), similarly reflected:
I often felt incredibly isolated at Harvard… I felt more comfortable
and confident sharing my opinions in spaces with higher levels of
underrepresented students of color…[This] lowered the likelihood
that I would be viewed as a “token” for my race.
(Itzel Libertad Vasquez-Rodriguez Supp. Decl. at ¶ 4.)
Greater racial representation combined with a holistic appreciation of difference also
promotes increased diversity within a given racial category (intraracial diversity),17 which in turn
can reduce isolation for students who identify with less-represented sub-groups or those with
intersectional identities. For example, A.A., who identifies as Chinese American and queer
(class of 2019), emphasized that she valued the diversity within Harvard’s Asian-American
community:
[At Harvard] I met other queer Asian Americans. I felt understood,
like I didn’t have [to] explain myself or filter myself to be
accepted. It was a great experience for me . . . . Harvard has
several activist-oriented Asian American organizations on campus
16

See Mitchell J. Chang, Does Racial Diversity Matter?: The Educational Impact of a Racially
Diverse Undergraduate Population, 40 J. of College Student Development 377, 391 (1999).
17
Grutter, 539 U.S. at 319-20 (noting testimony that when a university’s student body includes
sufficient numbers of minority students “racial stereotypes lose their force because nonminority
students learn there is no ‘minority viewpoint’ but rather a variety of viewpoints among minority
students.”).

10

that have provided me with community and opportunities to
grow . . . . [T]he people in these organizations, such as the
Harvard Queer Asian American and Pacific Islander Alliance,
understand me . . . because they also understand what it is to be
caught in liminal spaces of identity.
(A.A. Decl. at ¶¶ 11, 13, 14.)
Beyond the benefits flowing to minority students, studies confirm racial and ethnic
diversity enhances learning for all students. Such shared benefits include: reduced prejudice;18
improved cross-cultural understanding, comfort, and engagement;19 enhanced problem-solving
and academic abilities;20 and a developed capacity for teamwork and leadership.21 Students’
experiences bear this out. For example, Y.Z., a Chinese American rising senior at Harvard (class
of 2019), reflected on how Harvard’s racial diversity helped her overcome previously held
prejudices, explaining:
Coming from my suburb, Harvard seemed incredibly diverse to
me. . . . I made many African American friends during my first
year who shared perspectives with me I had previously not been
exposed to. . . . I had many conversations about race and class
with my friends that forced me to confront my own prejudices and
privilege.
(Y.Z. Decl. at ¶ 6.) Fadhal Moore, an African-American graduate of Harvard (class of 2015),
explained how having same-race peers at Harvard exposed him to a more diverse array of friends

18

See Kristin Davies et al., supra note 13, at 345; Nisha Gottfredson et al., supra note 13, at 326.
See Mitchell J. Chang, Nida Denson, Victor Saenz, and Kimberly Misa, The Educational
Benefits of Sustaining Cross-Racial Interaction Among Undergraduates, 77 J. of Higher Educ.
430, 430-55 (2006); Nida Denson and Mitchell Chang, Racial Diversity Matters: The Impact of
Diversity-Related Student Engagement and Institutional Context, 46 Amer. Educ. Research J.
322, 343 (2009); Nida Denson and Shirley Zhang, The Impact of Student Experiences with
Diversity on Developing Graduate Attributes, 35 Studies in Higher Educ. 529, 540 (2010).
20
See Chang et al., supra note 19; Jiali Luo and David Jamieson-Drake, A Retrospective
Assessment of the Educational Benefits of Interaction Across Racial Boundaries, 50 J. of College
Student Development 67, 82 (2009).
21
See Chang et al., supra note 19; Luo and Jamieson-Drake, supra note 20, at 67.
19

11

and opportunities on campus: “It was other black students who opened doors to other non-black
spaces that I ended up loving be they academic, political, musical, or for public service.”
(Fadhal Moore Supp. Decl. at ¶ 5.) D.L., a Chinese American rising junior (class of 2020), also
reflected on how Harvard’s racial diversity has increased his cross-cultural understanding and
engagement, sharing:
I am very involved in the hip hop dance team, through which I’ve
had the opportunity to learn more about the place of hip hop dance
in black culture and become friends with many brilliant students of
diverse minority racial backgrounds. Overall, the diversity at
Harvard that is made possible by its affirmative action program
contributes tremendously to the school and to my personal
experience.
(D.L. Decl. at ¶ 6.)
The benefits of racial diversity in higher education also extend to society at large.
Studies have shown that greater racial diversity is associated with increased civic engagement22
and increased preparation for leadership in a diverse, global economy.23 Consistent with this
research, Students affirm that Harvard’s racial diversity has buttressed their commitment to
public service and has better prepared them to perform such service. For example, J.L., a Korean
American rising senior (class of 2019), shared:
Since coming to Harvard, I have been very involved in the Phillips
Brooks House Association (PBHA), the nation’s largest studentrun public service non-profit that serves more than 10,000
individuals in and around the greater Boston area. PBHA is a hub
for diverse student organizing on campus and has challenged me to
develop a deeper commitment to social justice.

22

William G. Bowen and Derek Bok, The Shape of the River: Long-Term Consequences of
Considering Race in College and University Admissions (1998).
23
Anthony Lising Antonio, “The role of interracial interaction in the development of leadership
skills and cultural knowledge and understanding,” 42 Research in Higher Education 593 (2001).

12

(J.L. Decl. at ¶ 7.) Itzel Libertad Vasquez-Rodriguez, a Harvard graduate (class of 2017) who
identifies as indigenous Mexican-American, reflected on how Harvard’s diversity better prepared
her to pursue social justice work in Peru after graduation. Itzel explained:
[Harvard’s ethno-racial diversity] has given me the confidence and
grace to work cooperatively with diverse groups of people. It also
gave me the tools to promote equitable participation. By making
sure that every voice in a room is heard, I’m able to strengthen
discussions, problem-solve, and support solution-oriented
efforts. . . .
[T]he ethno-racial diversity at Harvard was
fundamental in preparing me to advance positive change in my
current and future professional endeavors.
(Itzel Libertad Vasquez-Rodriguez Supp. Decl. at ¶¶ 24-25).
As these statements underscore, the benefits of racial diversity on campus flow to
students of all backgrounds, including Asian-American students. Declarants Y.Z., D.L., T.D.,
J.L., A.Z., A.A., and S.C. identify with Asian-American ancestry; they all emphatically contest
SFFA’s implication that Harvard’s pursuit of racial diversity discriminates against Asian
Americans.24

Rather, these Asian-American Students attest that they benefit directly from

Harvard’s goal of promoting racial diversity through productive cross-racial interactions with
peers.25 Students’ sentiments are corroborated by field research. Studies have demonstrated that
interactions with a diverse student body, both in and out of the classroom, lead to positive
learning and civic outcomes for Asian-American students.26 Furthermore, research has indicated
24

Y.Z. Decl. at ¶¶ 7-8; D.L. Decl. at ¶ 8; T.D. Decl. at ¶ 8; J.L. Decl. at ¶ 6; A.Z. Decl. at ¶ 12;
A.A. Decl. at ¶ 22; S.C. Decl. at ¶ 7.
25
Y.Z. Decl. at ¶¶ 7-8; D.L. Decl. at ¶ 8; T.D. Decl. at ¶¶ 8-9; J.L. Decl. at ¶¶ 6-8; A.Z. Decl. at
¶ 10; A.A. Decl. at ¶ 23; S.C. Decl. at ¶¶ 7-8.
26
See NYU CARE, Asian Americans and the Benefits of Campus Diversity: What the Research
Says (2012); Patricia Gurin, Eric L. Dey, Sylvia Hurtado, and Gerald Gurin, Diversity and
Higher Education: Theory and Impact on Educational Outcomes, 72 Harv. Educ. Rev. 330, 351353, 354 tbl. 3 (2002); Mark E. Engberg and Sylvia Hurtado, Developing Pluralistic Skills and
Dispositions in College: Examining Racial/Ethnic Group Differences, 82 J. Higher Educ. 416,
434 (2011) (observing that while “the effects of intergroup learning on the pluralistic measure

13

that racially diverse campuses benefit Asian Americans by reducing racial prejudices targeting
Asian-American students and other students of color. A recent empirical study reported that
Asian American and Pacific Islander (“AAPI”) students experienced direct racial hostility in the
forms of racial bullying, racial slurs, and racial profiling.27 The study also indicated Asian
Americans experience indirect intimidation as a result of witnessing racist acts directed towards
other students of color.28 Studies show increased racial diversity serves to address this type of
intimidation: universities that reach the highest levels of diversity have fewer incidents of racial
hostility.29
Further, research has demonstrated that, as compared to socioeconomic or geographic
diversity, racial diversity contributes to small-group discussions in unique ways which enhances
students’ reasoning.30

Research suggests that when a topic concerning racial inequality is

addressed in a course, there will likely be greater variation in opinions and perspectives when the
students are more racially diverse than if they were more socioeconomically diverse.31 As
Student Itzel Libertad Vasquez-Rodriguez, who identifies as indigenous Mexican-American and
low-income, has explained:

were significant for all other groups,” Asian-American students “seem to demonstrate the
strongest benefit”).
27
See Samuel D. Museus and Julie J. Park, The Continuing Significance of Racism in the Lives of
Asian American College Students, 56 J. College Student Dev. 551, 553, 557-58 (2015).
28
Id.
29
See, e.g., Rebecca L. Stotzer and Emily Hossellman, Hate Crimes on Campus: Racial/Ethnic
Diversity and Campus Safety, 27 J. Interpersonal Violence 644, 654-55 (2012).
30
See Anthony L. Antonio, Mitchell J. Chang, Kenji Hakuta, David A. Kenny, Shana Levin,
Jeffrey F. Milem, Effects of Racial Diversity on Complex Thinking in College Students, 15
Psychological Science 507, 507-10 (2004).
31
See Mitchell J. Chang, M. Seltzer, and J. Kim, Diversity of Opinions Among Entering College
Students: Does Race Matter?, Research paper presented at the National Academy of Education
Annual Meeting, Toronto, Canada (2002).

14

[T]he experiences of people of color based on their appearance and
ethno-race is distinct from their experiences based on class. . . . As
a student of color, I often felt isolated and tokenized because of the
color of my skin, my name, and my features. Greater
socioeconomic diversity would not—on its own—have helped me
feel less singled out based on my ethno-racial identity.
(Itzel Libertad Vasquez-Rodriguez Supp. Decl. at ¶ 22.)
In sum, Students’ testimony highlights at least three ways that attending to demographic
representation across the student body is necessary (though not sufficient) to harness the full
benefits of diversity. First, greater numeric representation lessens the vulnerability felt by
marginalized minorities,32 thereby increasing their likelihood to participate rather than choose
disengagement.33 Second, such representation increases the likelihood that students will have
more frequent and more meaningful encounters across race that are crucial to overcoming preexisting biases.34 Third, it allows for increasing differences within a particular racial group,
which reduces prejudice and prevents the solidification of stereotypes by increasing exposure to
the variety of intra-racial identities.35

32

See, e.g., Amana Lewis, Mark Chesler, and Tyrone A. Forman, The Impact of ‘Colorblind’
Ideologies on Students of Color: Intergroup Relations at a Predominantly White University, 69 J.
of Negro Educ. 74, 82-84 (2000); Sharon Fries-Britt and Kimberly Griffin, The Black Box: How
High-Achieving Blacks Resist Stereotypes About Black Americans, 48 J. of College Student
Development 509, 514 (2007).
33
See, e.g., Samuel Museus, Uma Jayakumar, and Thomas Robinson, Modeling Racial
Differences in the Effects of Racial Representation on Two-Year College Student Success, 13
College Student Retention 549, 566 (2012).
34
See Mariette Berndsen, Russell Spears, Joop van der Pligt, and Craig McGarty, Illusory
Correlation and Stereotype Formation: Making Sense of Group Differences and Cognitive
Biases, Stereotypes as Explanations (2002).
35
See Scott Page, The Diversity Bonus: How Great Teams Pay Off in the Knowledge Economy
(New Jersey: Princeton Univ. Press 2017); see also Grutter, 539 U.S. at 319-20.

15

II.

Harvard’s Holistic Admissions Review Properly Views Race as One of Many
Factors That Contextualizes an Applicant’s Past Achievements and Future
Potential.
Race-conscious policies such as Harvard’s are designed to effectively achieve diversity

by comprehensively evaluating applicants individually and holistically.

Harvard’s race-

conscious admissions process appropriately considers race as one of many factors that may shed
light on an applicant’s past achievements and future potential. See Bakke, 438 U.S. at 316-18.
A.

Race and Racial Barriers Remain Factors in American Life Which Cannot
and Should Not Be Ignored in the Admissions Process.

Grutter recognized that present-day inequities provide a compelling justification for
considering race because “[b]y virtue of our Nation’s struggle with racial inequality,
[underrepresented] students are both likely to have experiences of particular importance to
the . . . [s]chool’s mission, and less likely to be admitted in meaningful numbers on criteria that
ignore those experiences.” 539 U.S. at 338. It cannot be disputed that race continues to impact
individuals’ opportunities and outcomes irrespective of their socioeconomic status.36
Several studies have revealed how race independently shapes our experiences and
worldviews. For example, a recent study found that in ninety-nine percent of America, Black
boys fare worse than white boys raised in the same neighborhood whose parents earn similar
incomes.37 In the workplace, employers are less likely to hire African-American and Latino job
applicants than applicants of other races with comparable qualifications and education levels.38

36

See, e.g., Raj Chetty, Nathaniel Hendren, Maggie R. Jones, and Sonya R. Porter, “Race and
Economic Opportunity in the United States: An Intergenerational Perspective,” Equality of
Opportunity (Mar. 2018), http://www.equality-ofopportunity.org/assets/documents/race_paper.pdf.
37
See id. at 6.
38
Lincoln Quillian, Devah Pager,, Ole Hexel,, and Arnfinn H. Midtbøen, “Meta-analysis of field
experiments shows no change in racial discrimination in hiring over time,” PNAS (Aug. 8, 2017)
at 2, http://www.pnas.org/content/pnas/early/2017/09/11/1706255114.full.pdf.

16

Low-income Black and Latino families are also more likely to live in neighborhoods with
concentrated poverty as compared to poor-whites.39
Racial inequities cut across multiple sectors—from education,40 to our economy, to our
criminal justice system and beyond. Children of color are more likely to be affected by exposure
to high levels of poverty and violence at a young age, the effects of “toxic stress,” and
inadequate housing and transportation.41 Entering the classroom, students of color are thus more
likely to attend schools that lack adequate funding, which means larger schools, larger class
sizes, less challenging curriculums, and less qualified teachers.42 Black workers are also paid
less than their white counterparts in comparable jobs, and the wage gap is only growing.43 In the
criminal justice system, people of color are targeted by racially discriminatory laws and
enforcement systems.44 There are also tremendous intraracial disparities, particularly within the
AAPI community. Many Southeast-Asian, Native-Hawaiian, and Pacific-Islander subgroups
suffer from school segregation,45 inadequate preparation for college,46 and other barriers to
higher education.47

39

Paul Jargowsky, “Concentration of Poverty in the New Millennium: Changes in Prevalence,
Composition, and Location of High Poverty Neighborhoods,” Century Foundation and Rutgers
Center for Urban Research and Education 5 (Dec. 2013).
40
Jeremy Ashkenas, Haeyoun Park, and Adam Pearce, Even with Affirmative Action, Blacks and
Hispanics Are More Underrepresented at Top Colleges Than 35 Years Ago, N.Y. Times (Aug.
24, 2017), https://nyti.ms/2w0BE08.
41
Annie E. Casey Found., Race for Results: Building a Path to Opportunity for All Children,
Kids Count Policy Report 3 (2014), http://www.aecf.org/m/resourcedoc/AECF-RaceforResults2014.pdf.
42
See id. at 4.
43
Eleni Karageorge, The Unexplainable, Growing Black-White Wage Gap, Bureau of Labor
Statistics (Nov. 2017) (finding that the wage gap also grew for Black women).
44
Leadership Conference Education Fund, “Justice on Trial: Racial Disparities in the American
Criminal Justice System” (2000), http://archives.civilrights.org/publications/justice-on-trial/.
45
See, e.g., Robert T. Teranishi, Southeast Asians, School Segregation and Postsecondary
Outcomes, Comm’n on Asian Am. Research in Higher Educ. 3 (2004) (describing residential

17

In light of these race-based inequities, it is perhaps unsurprising that the “academic
criteria” that SFFA vociferously promotes are laden with their own set of biases. The academic
index score is influenced by standardized test scores (such as the SATs), rigorous, SAT2 subject
tests, grades, and class rank. (SFFA Statement of Facts, Dkt. 414 at 22.) Far from being
“objective” indicators of merit, these measurements favor certain groups over other, more
marginalized communities. Numerous studies show that the SATs are skewed to favor wealthier
students and disfavor underrepresented minority groups.48 The criteria for curricular “rigor” are
equally flawed: Black and Latino children consistently have less access to AP courses and other
higher-level courses,49 and even scholastic grades themselves are subject to implicit bias against
students of color.50

In sum, there is nothing more “objective” about academic scoring as

compared to the numerous other criteria Harvard considers when selecting students that are

isolation and ethnic enclaves among poor immigrant communities from Southeast Asia and the
attendant educational inequities).
46
See, e.g., The Campaign for College Opportunity, The State of Higher Education in California
27-31 (Sept. 2015), http://collegecampaign.org/wp-content/uploads/2015/09/2015-State-ofHigher-Education_AANHPI2.pdf.
47
Id. at 22-25 (Hmong and Cambodian children have the highest rates of poverty in California;
more than two-thirds of Hmong, Samoan, Cambodian, and Vietnamese freshmen received needbased financial aid; large proportions of Vietnamese, Thai, Korean, Chinese, and Cambodian
communities have limited English proficiency).
48
See, e.g., Saul Geiser, “Norm-Referenced Tests and Race-Blind Admissions: The Case for
Eliminating the SAT and ACT at the University of California,” UC Berkley CSHE 15.17 (Dec.
2017); Jay Rosner, How the SAT Creates “Built-In Headwinds,” Kidder and Rosner, 43 Santa
Clara L. Rev. 131, 17 (2002).
49
See U.S. Dep’t of Educ. Off. for Civil Rights, “Data Snapshot: College and Career Readiness,”
Civil Rights Data Collection (Mar. 2014), https://www2.ed.gov/about/offices/list/ocr/docs/crdccollege-and-career-readiness-snapshot.pdf; David Love, “Black and Brown Students Are Denied
Access to Advanced Placement Courses, the New Jim Crow in Education,” Atlanta Black Star
(June 4, 2018), http://atlantablackstar.com/2018/06/04/black-and-brown-students-are-deniedaccess-to-advanced-placement-courses-the-new-jim-crow-in-education/.
50
Meike Bonefeld and Oliver Dickhäuser, “(Biased) Grading of Students’ Performance:
Students’ Names, Performance Level, and Implicit Attitudes,” Frontiers in Psychology (May 9,
2018), https://www.frontiersin.org/articles/10.3389/fpsyg.2018.00481/full#B46.

18

diverse across many dimensions. Harvard’s holistic, individualized review is consistent with
Grutter’s recognition that universities may need to consider race to counterbalance “criteria that
ignore those experiences [of racial inequality].” 539 U.S. at 338.These types of disparities inform
the admissions process in at least two meaningful ways. First, such inequities may indicate that
an applicant can offer a distinct perspective once on Harvard’s campus. As a Black American,
Sarah Cole asserts, “I knew the crucial importance of my voice and perspective, and many of my
classmates and professors did, as well.” (Sarah Cole Supp. Decl. at ¶ 10.) As a low-income
Chinese American, S.C. similarly testifies that her distinctive “humor, empathy, and humility,”
which was praised by Harvard’s admissions officers, derive “largely from [her] Chinese heritage
and low-income status.” (S.C. Decl. at ¶ 6.)
Second, such inequities shed light on the strengths of an applicant’s accomplishments, as
many minorities must overcome race-based hurdles. As an example, an admissions officer
reviewing T.D.’s application may view T.D.’s decision to enroll in a “humanities magnet
program in high school to explore my linguistic capabilities” with even greater admiration after
learning that T.D. (a Vietnamese immigrant) learned English in the United States, tried to
overcome their accent, and endured racial slurs. (T.D. Decl. at ¶ 4.) Thus, the allegedly “colorblind” system SFFA proposes would effectively “end[] up conferring a preference for applicants
for whom race does not matter, or more accurately, for those who do not suffer the traditional
harms stepping from structural racism.”51

51

Mario L. Barnes, Erwin Chemerinsky, and Angela Onwuachi-Willig, Judging Opportunity
Lost: Assessing the Viability of Race-Based Affirmative Action After Fisher v. University of
Texas, 62 UCLA L. Rev. 272, 294-95 (2015) (internal quotation marks omitted, emphasis
added).

19

B.

Harvard Flexibly Considers Race, Whereby Race is Not the Predominant
Factor in Admissions.

Harvard receives applications from many more academically qualified candidates than it
could ever admit.52 Admitting candidates based solely on academic scores is neither practically
realistic, nor would it be desirable. Although academic qualifications, like grade point average
and test scores, may be useful for threshold determinations about scholarly abilities, they are
incomplete in revealing an applicant’s professional potential or their ability to provide unique
contributions to the educational environment. It is only after considering whether “an individual
is capable of thriving academically at Harvard” that the Committee considers whether the
“person behind the scores” demonstrates collective qualities suggesting they will become
engaged citizens and citizen-leaders in an increasingly diverse, complex society.53 Part of this
assessment considers the applicant’s contribution to the multifaceted diversity Harvard seeks
across socioeconomic circumstances, talents, interests, viewpoints, ambitions, skills, and race.54
SFFA makes the bald assertion that race is a predominant factor in admissions for
African-American and Hispanic applicants. (SFFA Memorandum for Summary Judgment, Dkt.
413 at 46-47.)

But SFFA’s claim vastly overstates the role race plays in decisions and

effectively tries to overturn established Supreme Court precedent which allows race to play some
role in applicant decisions. See Bakke, 438 U.S. at 316; Grutter, 539 U.S. at 319.
Contrary to SFFA’s claim, any “tip” that race may provide does not operate as a trigger
for admission. In fact, race explains far less about applicants’ likelihood of admission than
numerous other factors Harvard considers. (Card Report, Dkt. 419, Ex. 33 at ¶¶ 178-81, 195.)

52

Brief for Harvard University as Amicus Curiae Supporting Respondents at 16, Fisher II, 136
S. Ct. 2198 (2016).
53
Interview Handbook 2013-2014, Dkt. 419, Ex. 54 at 13.
54
Id. at 10-13.

20

Rather, to be admitted to Harvard, applicants must demonstrate multiple areas of strength. (Id. at
¶¶ 56-57.)

Indeed, the vast majority of admitted students excel across multiple profile

dimensions: 46% of admitted students, from applicants to the classes of 2014 through 2019, had
profile ratings of 2 or better on at least three key dimensions. (Id. at ¶ 59 (1 being the highest
rating, followed by 2, etc.).) Significantly, an applicant’s race only factors into the “overall
rating” assigned by admissions officers and is never the sole factor determining admission. (Id.
at ¶ 53.)
Moreover, SFFA ignores established Supreme Court precedent recognizing that, in a
highly competitive admissions process, any attribute that is valued by the university—whether
that be artistic ability, athletics, socioeconomic status, geographic origin, or race—may affect
admissions outcomes but this does not render the policy unconstitutional. See Grutter, 539 U.S.
at 337-40; Bakke, 438 U.S. at 323. In Bakke, Justice Powell approvingly discussed Harvard’s
race-conscious admissions policy knowing that when the admissions committee “reviews the
large middle group of applicants who are ‘admissible’ and deemed capable of doing good work
in their courses, the race of an applicant may tip the balance in his favor.” 438 U.S. at 323. The
Grutter and Fisher II Courts similarly upheld race-conscious admissions plans where race may
have played an outcome determinative role for a limited number of applicants. See Grutter, 539
U.S. at 339; Fisher II, 136 S. Ct. at 2212.
III.

Race-Conscious Admissions Policies Remain Necessary to Support the Type and
Level of Demographic Representation which Will Produce Educational Benefits for
All Students.
SFFA’s own evidence reinforces the ongoing need for race-conscious admissions in order

for Harvard to achieve the educational benefits of diversity. SFFA’s simulations of race-neutral
admissions policies would significantly reduce Black students on campus, thereby impacting
ethno-racial diversity at Harvard. (Card Rebuttal Report, Dkt. 419, Ex. 37 at ¶¶ 192-93, 196-97.)

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Consequently, SFFA’s models do not offer an acceptable race-neutral alternative to its holistic
admissions program. Moreover, historical experience and prevailing research show that when
highly selective institutions stop considering race, all students of color—including Asian
Americans—lose out.
A.

SFFA Admits Its “Race-Neutral” Alternatives Would Reduce the Admission
of African Americans at Harvard, Preventing Harvard from Harnessing the
Full Benefits of Student Diversity.

Before considering race in admissions, Harvard must conduct a serious, good faith review
of workable race-neutral alternatives. See Fisher II, 136 S. Ct. at 2218; Grutter, 539 U.S. at 339.
In doing so, however, Harvard is not required to exhaust every conceivable race-neutral
alternative or “choose between maintaining a reputation for excellence [and] fulfilling a
commitment to provide educational opportunities to members of all racial groups.” Grutter, 539
U.S. at 339. Alternatives that negatively impact campus climate or would not produce the
educational benefits of diversity may be ineffective or unworkable. See id. at 340. Harvard may
therefore reject race-neutral alternatives which decrease overall diversity or the representation of
specific racial groups. See id. at 318-319 (recognizing that a critical mass of underrepresented
students may be necessary to dispel stereotypes and reduce racial isolation). It is undisputed that
all of the race-neutral alternatives proposed by SFFA are projected to significantly reduce the
number of African-American students admitted to Harvard by nearly 30% or more. (Card
Rebuttal Report, Ex. 37 at Ex. 6; see also SFFA Statement of Facts, at 190.) While such
decreases may be acceptable to SFFA, they are not to Students. “There is little enough diversity
as it is; without a conscious effort to maintain and grow a diverse student body, safe spaces and
open dialogue will become harder to find.” (A.A Decl. at ¶ 21.) Moreover, in Fisher II, the
Supreme Court found similar differences—increasing the portion of Hispanic students from 11%
to 16.9% and African-American students from 3.5% to 6.8%—had a “meaningful” effect on

22

diversity. Fisher II, 136 S. Ct. at 2212. Thus, Harvard may seek to enroll a sufficient number of
underrepresented minorities to ensure that they are “represented . . . meaningful[ly].”

See

Grutter, 539 U.S. at 316.
Holistic admissions policies rest on the premise that the consideration of individual
qualifications, characteristics and experiences is necessary to admit not only the best applicants
but to assemble the best mix of students. There are important distinctions that may exist both
within and between racial groups.

An institution may therefore be wary of race-neutral

alternatives that cause a decline in any particular underrepresented minority group.55 Minorities
are not fungible, and each group’s representation independently affects the benefits of diversity
and the conditions for meaningful participation and cross-racial interaction.56 While the lack of
diversity at Harvard contributes to “uncomfortable experiences” in the classroom, ethno-racial
diversity challenges students to think differently about issues. (See A.A Decl. and Itzel Libertad
Vasquez-Rodriguez Supp. Decl.)
Lumping different racial groups together is a tactic often used to argue that an institution
has achieved “enough” diversity and should no longer be permitted to consider race.57 Indeed,

55

Harvard has found that students of color and of diverse backgrounds are underrepresented in
certain degree programs in patterns consistent with historical trends. See, e.g., Harvard
University Presidential Task Force on Inclusions and Belonging, “Pursuing Excellence on a
Foundation of Inclusion,”
http://inclusionandbelongingtaskforce.harvard.edu/files/inclusion/files/harvard_inclusion_belong
ing_task_force_final_report.
56
Proponents of race-neutral alternatives often presuppose that all members of underrepresented
groups are interchangeable or that different racial groups contribute to campus diversity in the
same way. But the courts have recognized that such stereotypes are antithetical to the goals of
diversity: allowing nonminority students to appreciate that “there is no ‘minority viewpoint’ but
rather a variety of viewpoints among minority students.” See Grutter, 539 U.S. at 320.
57
Elise Boddie, Commentary on Fisher: The Importance of Diversity Within Diversity,
SCOTUSBlog (Oct. 11, 2012), http://www.scotusblog.com/2012/10/commentary-on-fisher-theimportance-of-diversity-within-diversity/.

23

this is what SFFA argues here. By aggregating African-American, Hispanic, and students who
self-identify as “other” in his simulations, Kahlenberg concludes that the “percentage of
underrepresented minority students basically holds steady” because a rise in the percentage of
Hispanic students counteracts the corresponding drop in the percentage of African Americans
admitted to Harvard.58 (Kahlenberg Rebuttal Report, Dkt. 419, Ex. 36 at 26-27.) This presumes
that increasing the representation of one underrepresented minority group neutralizes a decline in
another. Consequently, SFFA contends that race-neutral alternatives “would make Harvard
more racially diverse.” (SFFA Memorandum for Summary Judgment at 51 (emphasis added).)
This argument demonstrates SFFA’s misunderstanding of ethno-racial diversity.
Students assert that increasing the representation of one underrepresented group does not
eliminate the effects of decreasing another group’s representation. Students also wholeheartedly
reject SFFA’s assumption that such socioeconomic or geographic diversity would counteract any
drop in racial diversity or that these benefits are interchangeable. (Id. at 50; Kahlenberg Rebuttal
Report, Ex. 32 at 29.) Socioeconomic diversity allows students to appreciate the benefits of their
own privilege. (See Y.Z. Decl.) But it does not create the same appreciation of differences as
racial diversity: as one of the Students observed: “I felt an affinity to other people in my
neighborhood because of our shared experience with poverty, but I did not feel like people
understood my racial and ethnic identity.” (T.D. Decl. at ¶ 3.) Another Student’s views echo
this statement: “I think racial diversity and socioeconomic diversity are both important. But the

58

In his race-neutral simulations, Kahlenberg analyzes the level of admitted African-American,
Hispanic and “other” students collectively as “minority admitted shares.” Yet the Supreme
Court analyzed the impact of diversity on different racial groups separately in Fisher II, noting
that “27 percent [of undergraduate classes with at least five students] had only one AfricanAmerican student” and “[t]welve percent of these classes had no Hispanic students.” 136 S. Ct.
at 2212.

24

experiences of people of color based on their appearance and ethno-race is distinct from their
experiences based on class.” (Itzel Libertad Vasquez-Rodriguez Supp. Decl. at ¶ 22.)
B.

When Highly Selective Institutions Eliminate Holistic Admissions Students of
Color Are Negatively Impacted.

Both historical experience and prevailing research demonstrate that, when highly
selective colleges such as Harvard eliminate the use of race in admissions, white students benefit
while students of color tend to lose out because of a decline in enrollment numbers of students of
color and because of escalating racial isolation.
1.

Decreased Enrollment of Students of Color

Race-neutral policies often confer a benefit for white applicants who have not been
subjected to the harms associated with structural racism, while disadvantaging underrepresented
minorities.59 Proxies such as socioeconomic disadvantage or geographic diversity may not
produce the meaningful levels of racial diversity on campus because not all disadvantaged youth
are members of a racial or ethnic minority group and many underrepresented minorities live in
concentrated areas.60 In addition, there is research suggesting that income-based admissions

59

Mario L. Barnes et al., supra note 51, at 294-295.
See Maria Cancian, Race-Based Versus Class-Based Affirmative Action in College
Admissions, 17 J. of Policy Analysis and Management 94, 104 (1998). Socioeconomic
disadvantage can be defined a number of different ways but simulations found substantial if “far
from perfect” overlap between disadvantaged groups. Class-based preferences do not
necessarily produce the same levels of racial diversity as race-based affirmative action. While
minorities are disproportionately disadvantaged, overall there are greater numbers of low-income
whites than low-income minorities. See also William Kidder, How Workable are Class-Based
and Race-Neutral Alternatives at Leading American Universities?, 64 UCLA L. REV. DISC. 100,
111 (2016).
60

25

alone may actually reduce both racial and socio-economic diversity at some of the most selective
colleges and universities.61
The impact of bans on affirmative action on underrepresented minority students is
evident in the state systems that implemented percentage plans following such bans.62

In

addition to concerns that the success of such programs depends on underlying segregation of the
K-12 school system, research suggests that percentage plans have not effectively replicated the
level of racial diversity that institutions may have achieved prior to such a ban. This trend also is
evident at the most highly selective institutions within those states that use percentage plans.63
Texas offers one example of a state that was required to eliminate race-based admissions.
One researcher found that the end of affirmative action in Texas correlated with a decrease in the
likelihood that minority students would request that their SAT scores be sent to in-state public
colleges.64 Another study found that the Texas plan was ineffective in maintaining racial or
ethnic diversity at three of the state’s most competitive public institutions—UT Austin, Texas
A&M and Texas Tech University—in spite of the fact that two of those schools engaged in other

61

See Sean F. Reardon, Rachel Baker, and Daniel Kalsik, Race, Income and Enrollment Patterns
in Highly Selective Colleges 1982-2004, at 2, Center for Education Policy Analysis, Stanford
University (2012).
62
Percentage plans are just one example of a race neutral alternative to holistic admissions.
However, they offer the opportunity to evaluate application, admit and enrollment rates by racial
group before and after a ban on race-conscious admissions. While the mechanics of each plan
vary, as do the student-age racial demographics, it is possible to make some general observations
about the impact of such bans on underrepresented minorities.
63
See Catherine Horn and Stella M. Flores, Percent Plans in College Admissions: A
Comparative Analysis of Three States’ Experiences 42, The Civil Rights Project at Harvard
University (2003).
64
Data on where students send their SAT scores is often associated with where those students are
choosing to apply. M. Long found that the percentage plan in Texas was associated with fewer
racial and ethnic minorities applying to public flagship institutions which would make it more
difficult for those schools to admit and enroll a diverse class. Mark C. Long, College
Applications and the Effect of Affirmative Action, 121 Journal of Econometrics 319, 340 (2004).

26

measures designed to increase minority admissions.65 The first post-Hopwood class at the
University of Texas enrolled a much smaller number of underrepresented minorities and the
percentage of White students in that cohort increased immediately after the ban. When viewed
in light of the underlying demographic changes in the Texas student population, researchers have
concluded that Hispanic students were more disadvantaged than White students at the state’s top
two institutions under the percentage plan.66
At the University of California (“UC”), the end of race-conscious admissions also
reduced the likelihood that students of color were sending their SAT scores to in-state, public
schools. In the first year after Proposition 209 was implemented, there were “dramatic declines”
of 55% in admission offers to African Americans at UC Berkley and UCLA, California’s most
selective public universities.67 Asian Americans also experienced a system-wide decline in their
admit rate since Prop 209 was implemented, establishing that Asian Americans do not
necessarily benefit under a race-neutral alternatives.68

Moreover, the reduced number of

underrepresented minorities admitted were more likely to enroll elsewhere following the
enactment of Prop. 209, and survey data from eight of its campuses confirmed that Black and
Latino students felt that the ban on affirmative action and low levels of campus diversity
contributed to racial isolation and feelings that those students were less respected by their

65

See Mark Long and Marta Tienda, Winners and Losers: Changes in Texas University
Admissions post-Hopwood, 30 Educational Evaluation and Policy Analysis 255, 255-80 (2008).
66
Angel L. Harris and Marta Tienda, Hispanics in higher education and the Texas top 10% law,
4 Race and Social Problems 57, 57-67 (2012).
67
William C. Kidder, Two Decades After the Affirmative Action Ban: Evaluating the University
of California’s Race-Neutral Efforts (Oct. 2015),
https://www.ets.org/Media/Research/pdf/kidder_paper.pdf.
68
OiYan A. Poon, Do Asian Americans Benefit From Race-Blind College Admissions Policies?,
National Commission on Asian American and Pacific Islander Research in Education 3 (2017),
https://files.eric.ed.gov/fulltext/ED573713.pdf.

27

peers.69 Data on the freshman admit pools spanning over ten years shows that underrepresented
minorities were more likely to reject an offer from the University of California after Prop. 209.70
Despite significant investment in race-neutral alternatives over 20 years, the UC system has
never returned to its previous levels of diversity.71
2.

Increased Racial Isolation

Dramatic decreases in the number of African-American students on campus would surely
undercut “meaningful representation” of minorities, leaving them vulnerable to “feel[ing]
isolated or like a spokesperson for their race.” Grutter, 539 U.S. at 318-19. Students assert that
such cuts would harm all who benefit from a racially diverse campus, especially AsianAmerican, Black, Latino, and Native American students. There are courses in which there is an
observable absence of Black students; decreasing the representation of Black students on campus
would certainly impact the substantive discussion in those courses. (See Sarah Cole Supp. Decl.
at ¶¶ 8-10; Fadhal Moore Supp. Decl. at ¶¶ 5-6; A.A. Decl. at ¶ 21; J.L. Decl. at ¶ 8.) Some
student activities or groups still have a reputation for being elitist and white. (D.L. Decl. at ¶ 7.)
Recently, students of color launched a multimedia campaign to highlight, explore, and affirm the
diverse experiences and voices of Black students at Harvard and combat tokenism, stereotypes
and isolation.72 Students strongly believe that a reduction in the presence of Black students and
any students of color would profoundly weaken their ability to have such concerns addressed on
campus. (T.D. Decl. at ¶ 10; J.L. Decl. at ¶ 8.)

69

William C. Kidder, Misshaping the River: Proposition 209 and Lessons for the Fisher Case,
39 J. of College and Univ. Law 53, 55 (2013), http://ssrn.com/abstract=2123653.
70
Id.
71
William C. Kidder, supra note 67.
72
See “I, Too, Am Harvard,” Tumblr (Aug. 7, 2014), http://itooamharvard.tumblr.com/.

28

Students from underrepresented Asian sub-groups may also experience a similar decline
in enrollment and a concomitant increase in racial isolation (although it is more difficult to
measure since disaggregated data do not exist). There is a tendency to view all Asians as
a monolithic entity, which has “erased the complexity of the Asian-American experience.”73
T.D. notes that, while there is a big presence of Chinese and Korean culture and community on
campus, there is very little presence of Southeast Asian culture; the elimination of ethno-racial
considerations in the admissions process would eliminate any opportunity to remedy the
problems of isolation that Southeast Asian students like T.D. experience at Harvard. (T.D. Decl.
at ¶ 8.)
As Students can attest, the life experiences of Asian Americans and Pacific Islanders
reflect a wide variety of unique experiences reflective of a broad range of comparative privilege
and disadvantage that institutions should be permitted to consider when making an offer of
admission.74 Generic references to “Asian American” students perpetuates the “model minority”
myth and discounts the specific needs and challenges faced by distinct subgroups of Asian

73

See Julie S. Chung and Alexander Z. Zhang, Students for Fair Admissions and Harvard Both
Got It Wrong, Harvard Crimson (July 18, 2018),
https://www.thecrimson.com/article/2018/7/18/chung-zhang-sffa-harvard-wrong/. This is
particularly stark, given that Asian Americans are the most economically unequal racial group in
the United States. See also Rakesh Kochhar and Anthony Cilluffo, Income Inequality in the U.S.
Is Rising Most Rapidly Among Asians, Pew Research Center (July 12, 2018),
http://www.pewsocialtrends.org/2018/07/12/income-inequality-in-the-u-s-is-rising-most-rapidlyamong-asians/.
74
Two recent Op-Eds by Harvard students, including one of the amici that we represent, have
borne out this underrepresentation of particular sub-groups with the Asian-American label:
“[East Asian and Indian] are essentially the only two areas of Asia that I see represented at
Harvard. It takes another person to remind me that the Philippines and Southeast Asian countries
like Vietnam, Malaysia, Cambodia, and Thailand are also a part of this label.” Elizabeth Y. Sun,
Not Just “Asian,” Harvard Crimson (Aug. 9, 2017),
https://www.thecrimson.com/article/2017/8/9/sun-not-just-asian/; see also Julie S. Chung and
Alexander Z. Zhang, supra note 73.

29

students. As already noted, the monolithic treatment of underrepresented sub-groups erases their
varied ethnic, cultural, linguistic, socioeconomic, political and religious backgrounds. Research
shows that many Southeast Asian students live in poverty.75 Other Asian students, including
members of Thai, Vietnamese, Korean, Hmong and Cambodian communities, experience
significant language barriers.76 Many Native Hawaiian and Pacific Islander students have low
academic achievement, limited educational opportunities and require remediation in college.77
Students therefore believe that holistic admissions policies are necessary to allow
Harvard to consider the unique educational inequities faced by underrepresented minorities. To
realize the educational benefits of diversity, it is essential that Harvard has the freedom to better
comprehend and account for the differences in social and economic advantage and the variations
in educational opportunities experienced by these students.
CONCLUSION
Students represent a broad cross-section of Harvard’s racially and ethnically minority
students, prospective students, and alumni. Their shared experience starkly shows that there
continue to be race-based barriers to equal access and opportunity for all. Breaking down these
barriers requires an ongoing effort to promote diversity and inclusion across our shared social
institutions, including elite academic universities such as Harvard. Based on Harvard’s current
campus climate, race-conscious admissions practices remain necessary to promote such diversity
and inclusion. For the foregoing reasons, this Court should affirm through summary judgment
that Harvard’s limited, individualized consideration of race to promote diversity complies with
our Constitution.
75

See The Campaign for College Opportunity, supra note 46, at 22.
Id. at 25.
77
Id. at 27-31.
76

30

Respectfully Submitted,
/s/ Matthew Cregor
Matthew Cregor (BBO #673785)
LAWYERS’ COMMITTEE FOR CIVIL RIGHTS
AND ECONOMIC JUSTICE
61 Batterymarch Street, 5th Floor
Boston, MA 02110
Tel: [phone]
[e-mail]
/s/ Jon M. Greenbaum
Jon M. Greenbaum (pro hac vice)
Kristen Clarke
Brenda Shum
Genevieve Bonadies Torres
David Grau
LAWYERS’ COMMITTEE FOR CIVIL RIGHTS
UNDER LAW
1401 New York Avenue, NW, Suite 400
Washington, DC 20005
Tel: [phone]
[e-mail]
/s/ Nicole K. Ochi
Nicole K. Ochi (pro hac vice)
ASIAN AMERICANS ADVANCING JUSTICE
1145 Wilshire Boulevards
Los Angeles, CA 90017
Tel: [phone]
[e-mail]
/s/ Lawrence Culleen
Lawrence Culleen (pro hac vice)
Nancy Perkins (pro hac vice)
Steven Mayer (pro hac vice)
Emma Dinan
Krithika Santhanam
ARNOLD & PORTER KAYE SCHOLER LLP
601 Massachusetts Ave., NW
Washington, DC 20001
Tel: [phone]
[e-mail]

Dated: July 30, 2018

COUNSEL FOR AMICI CURIAE

31

CERTIFICATE OF SERVICE
In accordance with Local Rule 5.2(b), I hereby certify that this document filed through
the ECF system on July 30, 2018 will be sent electronically to the registered participants as
identified on the Notice of Electronic Filing.
/s/ Lawrence Culleen
Lawrence Culleen

32