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

Filing 449

MEMORANDUM in Opposition re 417 MOTION for Summary Judgment filed by Students for Fair Admissions, Inc.. (Consovoy, William) (Additional attachment(s) added on 7/31/2018: # 1 Memorandum of Reasons in Opposition to Harvard's Motion For Summary Judgment (Unredacted and Sealed)) (McDonagh, Christina).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
BOSTON DIVISION
STUDENTS FOR FAIR ADMISSIONS, INC.,
Plaintiff,
v.
PRESIDENT AND FELLOWS OF HARVARD
COLLEGE,
Defendant.

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

PLAINTIFF’S MEMORANDUM OF REASONS IN OPPOSITION
TO HARVARD’S MOTION FOR SUMMARY JUDGMENT
Adam K. Mortara
BARTLIT BECK HERMAN PALENCHAR
& SCOTT LLP
54 West Hubbard Street, Suite 300
Chicago, IL 60654
312.494.4400
[e-mail]
John M. Hughes
BARTLIT BECK HERMAN PALENCHAR
& SCOTT LLP
1801 Wewatta Street, Suite 1200
Denver, CO 80202
303.592.3100
[e-mail]
Paul M. Sanford BBO #566318
BURNS & LEVINSON LLP
One Citizens Plaza, Suite 1100
Providence, RI 02903
617.345.3000
[e-mail]

July 30, 2018

William S. Consovoy
Thomas R. McCarthy
J. Michael Connolly
CONSOVOY MCCARTHY PARK PLLC
3033 Wilson Boulevard, Suite 700
Arlington, Virginia 22201
703.243.9423
[e-mail]
[e-mail]
[e-mail]
Patrick Strawbridge BBO #678274
CONSOVOY MCCARTHY PARK PLLC
Ten Post Office Square
8th Floor South PMB #706
Boston, MA 02109
617.227.0548
[e-mail]
Michael H. Park
CONSOVOY MCCARTHY PARK PLLC
745 Fifth Avenue, Suite 500
New York, NY 10151
212.247.8006
[e-mail]

TABLE OF CONTENTS
INTRODUCTION ........................................................................................................................................... 1
STANDARD OF REVIEW ............................................................................................................................ 1
ARGUMENT..................................................................................................................................................... 2
I.

SFFA has Article III standing. ........................................................................................................... 2

II.

Harvard is not entitled to summary judgment on the merits. ....................................................... 8
A.

Harvard intentionally discriminates against Asian Americans. ........................................ 8
1.

There is significant documentary and testimonial evidence of
intentional discrimination against Asian Americans. ........................................... 8

2.

There is overwhelming statistical evidence of intentional
discrimination against Asian Americans. .............................................................14

B.

Harvard engages in racial balancing. ..................................................................................19

C.

Harvard is not using race merely as a “plus” factor to achieve student body
diversity. .................................................................................................................................25

D.

Harvard neither gave serious, good faith consideration to nor is taking
advantage of workable race-neutral alternatives. .............................................................31

CONCLUSION ...............................................................................................................................................37

i

TABLE OF AUTHORITIES
Cases
Adorno v. Port Auth.,
258 F.R.D. 217 (S.D.N.Y. 2009) ....................................................................................................................13
Already, LLC v. Nike, Inc.,
568 U.S. 85 (2013) ......................................................................................................................................... 5
Anderson v. Liberty Lobby, Inc.,
477 U.S. 242 (1986) ....................................................................................................................................... 1
Bauer v. Bailar,
647 F.2d 1037 (10th Cir. 1981)..................................................................................................................17
Blackwell v. Thomas,
476 F.2d 443 (4th Cir. 1973) ......................................................................................................................17
Bob Jones Univ. v. Johnson,
396 F. Supp. 597 (D.S.C. 1974) ................................................................................................................... 2
Cavalier ex rel. Cavalier v. Caddo Par. Sch. Bd.,
403 F.3d 246 (5th Cir. 2005) ......................................................................................................................19
Christianson v. Colt Indus. Operating Corp.,
486 U.S. 800 (1988) ....................................................................................................................................... 2
EEOC v. Md. Ins. Admin.,
879 F.3d 114 (4th Cir. 2018) ........................................................................................................................ 9
Evans v. City of Houston,
246 F.3d 344 (5th Cir. 2001) ......................................................................................................................10
Fini v. Remington Arms Co.,
No. 97-12, 1998 WL 299358 (D. Del. May 27, 1998) ............................................................................10
Fisher v. University of Texas at Austin,
136 S. Ct. 2198 (2016).................................................................................................................... 24, 28, 34
Fisher v. University of Texas at Austin,
570 U.S. 297 (2013) ...............................................................................................................................passim
Fowle v. C & C Cola, a Div. of ITT-Continental Baking Co.,
868 F.2d 59 (3d Cir. 1989) .........................................................................................................................17
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.,
528 U.S. 167 (2000) ....................................................................................................................................... 5
Fuentes v. Perskie,
32 F.3d 759 (3d Cir. 1994) .........................................................................................................................10
Gratz v. Bollinger,
539 U.S. 244 (2003) ................................................................................................................................ 3, 27
Grutter v. Bollinger,
539 U.S. 306 (2003) ....................................................................................................................2, 18, 25, 34
ii

Hamilton v. Geithner,
666 F.3d 1344 (D.C. Cir. 2012) .................................................................................................................10
Harlow v. Children’s Hosp.,
432 F.3d 50 (1st Cir. 2005)........................................................................................................................... 2
Harrington v. Aggregate Indus. Ne. Region, Inc.,
668 F.3d 25 (1st Cir. 2012)........................................................................................................................... 9
Holcomb v. Iona Coll.,
521 F.3d 130 (2d Cir. 2008) .......................................................................................................................13
Hunt v. Wash. State Apple Advert. Comm’n,
432 U.S. 333 (1977) ....................................................................................................................................... 2
In re Tyco Intern., Ltd.,
340 F. Supp. 2d 94 (D.N.H. 2004).............................................................................................................. 7
Jefferson Ins. Co. v. Roberts,
349 F. Supp. 2d 101 (D. Mass. 2004) ......................................................................................................... 2
Lewis v. Continental Bank Corp.,
494 U.S. 472 (1990) ....................................................................................................................................... 4
Lowery v. Circuit City Stores, Inc.,
206 F.3d 431 (4th Cir. 2000) ........................................................................................................................ 8
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574 (1986) ....................................................................................................................................... 2
Natural Resources Defense Council v. Mineta,
No. 04-5380, 2005 WL 1075355 (S.D.N.Y. May 3, 2005) ...................................................................... 6
Parents Involved in Community Schools v. Seattle School Dist. No. 1,
551 U.S. 701 (2007) ................................................................................................................................ 6, 19
Pegues v. Mississippi State Employment Serv. of Mississippi Employment Sec. Comm’n,
699 F.2d 760 (5th Cir. 1983) ......................................................................................................................17
Perrea v. Cincinnati Public Schools,
709 F. Supp. 2d 628 (S.D. Ohio, Apr. 20, 2010) ....................................................................................19
Piercy v. Maketa,
480 F.3d 1192 (10th Cir. 2007).................................................................................................................... 9
Pintro v. Pai,
273 F. Supp. 3d 264 (D.D.C. 2017) ..........................................................................................................10
Price Waterhouse v. Hopkins,
490 U.S. 228 (1989) .....................................................................................................................................20
Purkett v. Elem,
514 U.S. 765 (1995) ....................................................................................................................................... 9
Regents of the Univ. of Cal. v. Bakke,
438 U.S. 265 (1978) ....................................................................................................................................... 2

iii

Rhode Island Ass’n of Realtors, Inc. v. Whitehouse,
199 F.3d 26 (1st Cir. 1999)........................................................................................................................... 5
Rich v. Martin Marietta Corp.,
522 F.2d 333 (10th Cir. 1975)....................................................................................................................13
Rodriguez de Quijas v. Shearson/American Express, Inc.,
490 U.S. 477 (1989) .....................................................................................................................................25
Schuette v. Coalition to Defend Affirmative Action, Integration & Immigrant Rights & Fight for Equality
by Any Means Necessary (BAMN),
134 S. Ct. 1623 (2014).................................................................................................................................26
Sherman v. AI/FOCS, Inc.,
113 F. Supp. 2d 65 (D. Mass. 2000) .........................................................................................................20
Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll. (Harvard Corp.),
261 F. Supp. 3d 99 (D. Mass. 2017) ...................................................................................................passim
Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll. (Harvard Corp.),
No. 14-14176, 2017 WL 2407254 (D. Mass. June 2, 2017) ..................................................................25
Town of Barnstable v. O’Connor,
786 F.3d 130 (1st Cir. 2015) ........................................................................................................................ 5
Valentin v. Hospital Bella Vista,
254 F.3d 358 (1st Cir. 2001) ........................................................................................................................ 7
Weston-Smith v. Cooley Dickinson Hosp., Inc.,
282 F.3d 60 (1st Cir. 2002).................................................................................................................. 19, 20
Wisconsin Educ. Ass’n Council v. Walker,
705 F.3d 640 (7th Cir. 2013) ........................................................................................................................ 9
Woods v. City of Greensboro,
855 F.3d 639 (4th Cir. 2017) ......................................................................................................................15
Zambrana-Marrero v. Suarez-Cruz,
172 F.3d 122 (1st Cir. 1999) ........................................................................................................................ 1

iv

INTRODUCTION
Harvard’s motion is just what one would expect from a party that, quite remarkably, asked the
Court to prohibit Students for Fair Admissions (“SFFA”) from exercising its right to seek summary
judgment. Harvard leads with an issue (Article III standing) that the Court has already decided against
it, buries the most important issue in the case (intentional discrimination against Asian Americans) at
the very end of its brief, and fills the pages in between with circular talking points about “wholeperson review,” instead of confronting the powerful evidence that it is violating Supreme Court
precedent governing how, when, and why race may be used in admissions. Harvard’s motion thus
confirms why it wanted to do everything possible to bypass this stage of the case. However, that is
not how civil litigation works under the Federal Rules. Harvard cannot survive to trial if, based on the
record evidence, no reasonable factfinder could decide the case in its favor. That is the case here. As
set forth in SFFA’s motion and further explained below, SFFA is entitled to summary judgment and
nothing in Harvard’s motion undermines that conclusion.
STANDARD OF REVIEW
SFFA’s memorandum sets forth the standard of review. Plaintiff’s Memorandum of Reasons
in Support of Its Motion for Summary Judgment (“SFFA Mem.”) 3. The issue is not whether material
facts are in dispute—some are. The issue is whether a “reasonable fact-finder” could view the dispute
over those facts as “genuine.” Memorandum in Support of Defendant’s Motion for Summary
Judgment on All Remaining Counts (“Harvard Mem.”) 3. As the Supreme Court has explained, “the
‘genuine issue’ summary judgment standard is ‘very close’ to the ‘reasonable jury’ directed verdict
standard” because “the inquiry under each is the same: whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so one-sided that one party must prevail
as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986); Zambrana-Marrero v.
Suarez-Cruz, 172 F.3d 122, 125 (1st Cir. 1999). “‘Where the record taken as a whole could not lead a

1

rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.’” Jefferson Ins.
Co. v. Roberts, 349 F. Supp. 2d 101, 105 (D. Mass. 2004) (quoting Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986)).
ARGUMENT
Harvard’s summary judgment motion should be denied. First, as the Court has already ruled,
SFFA has Article III standing. Second, it is SFFA—not Harvard—that is entitled to summary
judgment because of the overwhelming evidence that Harvard is in violation of Title VI.1 SFFA Mem.
4-45. But even if the Court disagrees, the record evidence clearly is not so one-sided in Harvard’s favor
as to entitle Harvard to summary judgment. Far from it, Harvard is—at best—hanging on by a thread.
Even if Harvard somehow survives to trial, it faces a steep uphill battle.
I.

SFFA has Article III standing.
Harvard’s renewed challenge to SFFA’s Article III standing is meritless. See Harvard Mem. 11-

15. The Court has already ruled that SFFA meets all of Article III’s requirements, see Students for Fair
Admissions, Inc. v. President & Fellows of Harvard Coll. (Harvard Corp.), 261 F. Supp. 3d 99 (D. Mass. 2017)
(“SFFA”), and that ruling remains the law of the case, Christianson v. Colt Indus. Operating Corp., 486
U.S. 800, 817 (1988); Harlow v. Children’s Hosp., 432 F.3d 50, 55 (1st Cir. 2005).
First, SFFA is a “‘traditional voluntary membership organization.’” SFFA, 261 F. Supp. 3d at
109 (quoting Hunt v. Wash. State Apple Advert. Comm’n, 432 U.S. 333, 344-45 (1977)). Second, “SFFA

1 Harvard suggests that it should have greater freedom to discriminate on the basis of race under Title VI because
it is a private university. Harvard Mem. 16 n.12. But precedent forecloses the argument. Title VI bans “racial classifications
that would violate the Equal Protection Clause or the Fifth Amendment.” Grutter v. Bollinger, 539 U.S. 306, 343 (2003)
(citation omitted). If the Supreme Court is inclined to revisit this issue—at Harvard’s urging or otherwise—SFFA will
argue that Title VI is more restrictive than the Equal Protection Clause. See Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265,
415-18 (1978) (Stevens, J., concurring in the judgment in part and dissenting in part) (Title VI is “colorblind” and “has
independent force, with language and emphasis in addition to that found in the Constitution. ... Race cannot be the basis
of excluding anyone from participation in a federally funded program.”). Regardless, Harvard does not need judicial
approval to secure the freedom to discriminate on the basis of race. It can stop accepting federal funds. See Bob Jones Univ.
v. Johnson, 396 F. Supp. 597, 606 (D.S.C. 1974).

2

has provided the affidavits of a subset of its members, referred to as Standing Members, which
demonstrate that at least some of these individuals, the rejected applicants, would have standing to
sue on their own.” Id. at 109-10 (citing Gratz v. Bollinger, 539 U.S. 244, 262-63 (2003)). Third, “the
lawsuit is germane to SFFA’s purpose because, as stated in its Bylaws, SFFA’s mission is ‘to defend
human and civil rights secured by law, including the right of individuals to equal protection under the
law.’” Id. at 110. Fourth, “SFFA requests only declaratory and injunctive relief, and obtaining such
relief, based on the claims in this case, would not require individual participation by its members.” Id.
(citation omitted). Thus, “SFFA meets the prerequisites laid out in Hunt and has the associational
standing necessary to pursue this litigation.” Id. at 111. The Court could not have been clearer.
Harvard’s argument is mostly a halfhearted request for reconsideration. To that end, Harvard
claims that certain facts—namely, that SFFA amended its Bylaws after initiating this lawsuit, that only
one Board member is elected; that a “tiny fraction” of the members pay dues; that SFFA receives nonmember donations; and that Mr. Blum runs SFFA’s daily operations—prove that SFFA is not a “true”
membership association. Harvard Mem. 11-13. But Harvard made these arguments before. See Mem.
in Support of Defendant’s Mot. to Dismiss for Lack of Subject Matter Jurisdiction, Dkt. No. 184 (filed
Sept. 23, 2016) at 4 (amended Bylaws); id. at 12 (election of one Board member); id. at 13-14 (members
paying dues); id. at 14 (non-member donors); id. at 14-15 (Mr. Blum’s responsibilities). The Court
rejected them all. SFFA, 261 F. Supp. 3d at 103-11.
What actually matters for purposes of SFFA’s Article III standing, as this Court has explained,
is that:
•

A “substantial part of SFFA’s mission is to end race-based admissions policies at American
universities.”

•

“SFFA clearly communicated its mission, which has stayed consistent since its founding,
to prospective members through its website and in its outreach efforts.”

3

As an initial matter, Harvard’s argument is not about standing—it is about mootness. To be
sure, the “case-or-controversy requirement subsists through all stages of federal judicial proceedings,
trial and appellate.” Lewis v. Continental Bank Corp., 494 U.S. 472, 477 (1990). The court, accordingly,
must determine whether the plaintiff “had Article III standing at the outset of the litigation.” Friends
of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180 (2000). After that point, the issue
is whether the case has become “moot—and therefore no longer a ‘Case’ or ‘Controversy’ for
purposes of Article III—” because “the issues presented are no longer ‘live’ or the parties lack a legally
cognizable interest in the outcome.” Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013) (citation
omitted). Harvard does not point to this testimony to argue that SFFA lacked Article III standing
when it brought this action, or even when the Court ruled on the motion to dismiss. Harvard instead
argues that the testimony shows there is no longer a live controversy—i.e., that the case is moot.
The distinction matters. The “standing and [] mootness ... inquiries differ.” Friends of the Earth,
Inc., 528 U.S. at 180. “In contrast to standing, the burden of establishing mootness rests on the party
raising the issue.” Rhode Island Ass’n of Realtors, Inc. v. Whitehouse, 199 F.3d 26, 34 (1st Cir. 1999) (citations
omitted); see also Town of Barnstable v. O’Connor, 786 F.3d 130, 142 (1st Cir. 2015) (“The Supreme Court
has placed the ‘heavy burden of persuasion’ with respect to mootness on the party advocating for it.”)
(citation and quotations omitted). Harvard cannot come close to carrying that burden. Both Standing
Members declared under oath that they are “able and ready to apply to transfer to Harvard were it to
cease the use of race or ethnicity as an admissions preference and to cease its intentional discrimination
against Asian Americans.” SAF ¶¶ 61, 73. And both of them testified that their declarations were true
and accurate and that they remain ready and able to apply if Harvard stops discriminating on the basis
of race. SAF ¶¶ 62, 74. No more was required to establish their standing under this Court’s ruling.
SFFA, 261 F. Supp. 3d at 109-10.

5

seven more declarations from members who were denied admission in 2017 or 2018 and who are
ready and able to reapply if Harvard ends its discriminatory practices, SAF ¶¶ 49-56, 79-85, 86-92, 9399, 100-106, 107-113, 114-120. Harvard would have to prove that they are all insincere. The Court
then would also have to reject SFFA’s argument that “prospective college students, who have not yet
applied, or the parents of applicants have standing to sue”—an argument the Court already determined
it did not need to address. SFFA, 261 F. Supp. 3d at 110 n.12. The Court should not permit Harvard
to continue wasting “judicial and party resources,” id. at 111 n.14, in its hopeless attempt to prove that
SFFA lacks “at least one member” who would “have standing to sue in his own right,” id. at 110 n.12.
SFFA does not now—nor will it ever—lack for injured members.
For all these reasons, the Court should confirm that the Article III issue has been resolved
and it is not a matter for trial. The Court examined the record evidence and definitively resolved the
issue of Article III standing. See Valentin v. Hospital Bella Vista, 254 F.3d 358, 364-65 (1st Cir. 2001).
The Court rightly understood that it did not have to convert the Rule 12(b)(1) motion into a Rule 56
motion to decide the issue, SFFA, 261 F. Supp. 3d at 103, and that “[i]f the disputed jurisdictional
facts are separable from the merits,” it “should resolve the jurisdictional question immediately,” In re
Tyco Int’l, Ltd., 340 F. Supp. 2d 94, 97 (D.N.H. 2004) (citing Valentin, 254 F.3d at 363). Indeed, the
First Circuit has emphasized that a district court should leave the Article III issue “unresolved until
the time of trial” only if it “is inextricably intertwined with the merits.” Id. at 97 (citing Valentin, 254
F.3d at 363 n.3). The mootness issue, therefore, also should not be deferred to trial. Harvard’s hapless
argument on this point is not intertwined with the merits, and SFFA continues to have members who
would have standing to sue in their own right. In sum, Harvard’s motion for summary judgment on
Article III standing should be denied because Harvard has already fully litigated and lost that
jurisdictional issue.

7

II.

Harvard is not entitled to summary judgment on the merits.
A.

Harvard intentionally discriminates against Asian Americans.

Harvard is not entitled to summary judgment on SFFA’s Count I. Harvard Mem. 35-45. The
record evidence instead shows that SFFA is entitled to summary judgment. SFFA Mem. 5-33. If the
Court disagrees, then a trial is needed to resolve genuine factual disputes that are material to resolution
of this count.
Harvard’s premise is that SFFA’s claim of discrimination against Asian-American applicants
“is entirely statistical.” Harvard Mot. 35. According to Harvard, because there is no “documentary or
testimonial support for SFFA’s accusation that Harvard systematically seeks to limit the number of
Asian Americans or discriminates against them,” id., SFFA must establish a “gross disparity” in the
effect of Harvard’s admissions policies on Asian Americans “to survive summary judgment on its
claim of intentional discrimination based on statistics alone,” id. at 36. As explained below, Harvard’s
argument fails at every step.
1.

There is significant documentary and testimonial evidence of
intentional discrimination against Asian Americans.

Harvard wishes it were otherwise, but SFFA’s case is not entirely statistical. There is significant
documentary and testimonial evidence showing a pattern of intentional discrimination against Asian
Americans. SFFA Mem. 11-23. Chief among this evidence is Harvard’s reaction to OIR’s investigation
showing that the admissions system is biased against Asian Americans. As SFFA has explained, any
responsible university, business, charity, professional association, or social club, confronted with
reports like these would have addressed their shocking findings. At a bare minimum, follow-up
questions would have been asked, the reports would have been probed and examined, additional
research would have been performed, key admissions staff would have been questioned, and remedial
action would have been considered. In other words, university leadership would have acted like this
was news to them. Instead, Harvard’s official response to a report that said its admissions system
8

discriminates against Asian Americans was that its system is working as intended—i.e., Harvard did
nothing at all.
Confronted with proof of discrimination against Asian Americans, university leadership asked
no questions, buried the reports, and killed the investigation. SFFA Mem. 15-20. This is precisely the
kind of evidence from which an inference of intentional discrimination often is—and should be—
drawn. See id. at 15 (collecting cases); see also Lowery v. Circuit City Stores, Inc., 206 F.3d 431, 439 (4th Cir.
2000) (“Lowery and Peterson also demonstrated racial animus on the part of Circuit City by
introducing evidence that Zierden ‘buried’ two internal reports ... that were critical of Circuit City’s
promotion policies and diversity results.”); id. at 445-46 (“Countering Circuit City’s evidence of its
alleged good-faith efforts to comply with § 1981 is evidence in the record ... that one of [its] top
executives buried two internal reports reflecting a negative attitude on behalf of Circuit City against
racial minorities and failed to take any remedial action in response to the negative findings in the
reports.”).
Harvard’s excuse for its response—that OIR’s “analysis was incomplete, preliminary, and
based on limited inputs”—digs an even deeper hole. Harvard Mem. 38 (citing Harvard SMF ¶ 213).
As the Supreme Court has explained, “implausible or fantastic justifications may (and probably will)
be found to be pretexts for purposeful discrimination.” Purkett v. Elem, 514 U.S. 765, 768 (1995); see
also Harrington v. Aggregate Indus. Ne. Region, Inc., 668 F.3d 25, 33 (1st Cir. 2012) (“Weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffer can give
rise to an inference of pretext.”) (citations and quotations omitted); Piercy v. Maketa, 480 F.3d 1192,
1200 (10th Cir. 2007) (“In establishing pretext, an employee can show ‘the employer’s proffered reason
was so inconsistent, implausible, incoherent, or contradictory that it is unworthy of belief.’”) (citation
omitted); Wisconsin Educ. Ass’n Council v. Walker, 705 F.3d 640, 666 (7th Cir. 2013) (“[A]n implausible
explanation is treated as a pretext, which allows a reasonable inference of unlawful discrimination”).

9

That is the situation here. SFFA Mem. 17-19. No rational factfinder could accept Harvard’s
implausible and contradictory explanation.
At the time, not one Harvard official who saw the OIR reports—including Dean Fitzsimmons
and Dean Khurana—criticized them at the time as “incomplete, preliminary, and based on limited
inputs.” SFFA SMF ¶¶ 427, 552, 557. In fact, they offered no criticism at all. Id. These are not bashful
people who are shy about sharing their views. See, e.g., id. ¶¶ 359-361. If Fitzsimmons, Khurana, or
anyone else had concerns with OIR’s work, they would have said so at the time. But Erin Driver-Linn
(the head of OIR) and her team had a meeting with Dean Fitzsimmons to present OIR’s findings in
which no such concerns were raised by anyone. Id. ¶ 426. And OIR circulated the reports fully aware of
how explosive the findings were. See, e.g., id. ¶¶ 487-491, 492, 518, 539. Fitzsimmons and Khurana said
nothing and did nothing that would suggest that the findings should be questioned. Id. ¶¶ 428-31, 46871, 514-17, 525-28, 540-43. The lack of any contemporaneous support for Harvard’s explanation
creates a strong inference of intentional discrimination. See EEOC v. Md. Ins. Admin., 879 F.3d 114,
123 (4th Cir. 2018); Hamilton v. Geithner, 666 F.3d 1344, 1355-57 (D.C. Cir. 2012); Evans v. City of
Houston, 246 F.3d 344, 355 (5th Cir. 2001); see, e.g., Fini v. Remington Arms Co., No. 97-12, 1998 WL
299358, at *7 (D. Del. May 27, 1998) (“Given the dearth of objective, contemporaneous evidence, the
court concludes that a factfinder reasonably could infer from the evidence that defendant’s proffered
nondiscriminatory reason ‘was either a post hoc fabrication or otherwise did not actually motivate the
employment action (that is, the proffered reason is pretext).’”) (quoting Fuentes v. Perskie, 32 F.3d 759,
764 (3d Cir. 1994)).
The problem for Harvard, however, is far worse than a “dearth” of evidence supporting its
justification. A wealth of contemporaneous evidence actually contradicts Harvard’s post hoc story. As
many courts have explained, contemporaneous evidence that contradicts the defendant’s proffered

10

justification is especially powerful evidence of discriminatory intent. See, e.g., Pintro v. Pai, 273 F. Supp.
3d 264, 273 (D.D.C. 2017).
In particular, the evidence contradicts Harvard’s claim that the OIR reports were disregarded
because they were “preliminary.” Many OIR reports upon which Harvard has relied to make important
institutional decisions were also labeled “preliminary.” SFFA SMF ¶¶ 383-84. An OIR “Preliminary
Draft” report on early action, for example, was “sent to President Faust and Dean Smith and then
ultimately to the members of the Harvard Corporation,” and it was then relied upon by Harvard to
reinstate early action. Id. ¶ 383. Harvard also made the important decision to increase tuition based on
a “Preliminary Draft” of an OIR report analyzing “the effect of potential changes to financial aid.” Id.
¶ 384. It is unsurprising, then, that no one doubted or questioned the decision to rely on these OIR
studies because they were marked as “preliminary.” Indeed, OIR circulated the reports to Harvard
leadership on several occasions, covering a period greater than a year, with no substantive revisions.
Id. ¶¶ 532-33, 539. Harvard chose poorly in manufacturing this “preliminary” excuse after the fact for
a decision that, at the time, obviously was made for other reasons.
Harvard’s assertion that it disregarded OIR’s work because of its completeness or quality also
does not withstand scrutiny. No official questioned OIR about the nature of its methodological
approach or the data used to perform its analysis. Yet Harvard suggests that Fitzsimmons and Khurana
were able to conclude—immediately upon being shown detailed and extensive regression studies that
took months to complete—that the findings were untrustworthy without asking any questions, without
any further inquiry, and without mentioning this to anyone. SFFA Mem. 16-18. Yet when these same
OIR reports—using the same methodology and data—showed favorable results as to policies
concerning low-income applicants, Fitzsimmons found OIR’s work to be trustworthy and reliable.
SFFA SMF ¶ 483. Suddenly, there were no concerns. Indeed, Dean Fitzsimmons had hoped to
publicly release the findings, prompting Driver-Linn to

11

SFFA SMF ¶¶ 483, 487-491. The idea that the
completeness or quality of OIR’s work had anything to do with Harvard’s decision to kill the internal
investigation and bury the reports is not just farfetched and devoid of record support—it is a post hoc
fabrication designed to excuse damning evidence of intentional discrimination.
Regardless, Harvard’s excuses for not responding to OIR’s “preliminary” findings, even if
taken at face value, just beg the question: where are the “final” reports? Does Harvard expect a
reasonable factfinder to believe that its decision not to pursue the OIR “preliminary” findings in any
way whatsoever is evidence of benign motives? Harvard’s ostrichism on OIR’s findings, in this day
and age, proves intentional discrimination.
Moreover, Harvard’s non-reaction to the OIR investigation and reports is not SFFA’s only
documentary and testimonial evidence of intentional discrimination. Far from it. SFFA Mem. 20-23.
Harvard employees, alumni, applicants, and students have made claims of discrimination. SFFA SMF
¶¶ 325-333. Harvard officials have made or condoned offensive comments about Asian-American
applicants, have shown startling indifference to Asian-American claims of discriminatory treatment,
and have countenanced racially offensive statements directed at Asian Americans that never would
have been tolerated if directed at African Americans or Hispanics. SFFA SMF ¶¶ 333-345. The
“summary sheets” also exhibit intentional discrimination against Asian-American applicants. SFFA
SMF ¶¶ 678-698. Harvard’s ill-conceived attempt to wave this evidence away as “a handful of isolated
comments” is telling. Harvard Mot. 37 n.25. The evidence supports SFFA’s allegation that Harvard
intentionally discriminates against Asian Americans.3

Harvard also ignores its history of Jewish discrimination. SFFA Mot. 23-26. That is unsurprising given that
President Faust and Dean Fitzsimmons could not even bring themselves to admit that it occurred. See id. at 25 n.5.
3

12

Finally, Harvard points to the fact that “the percentage of self-identified Asian-American
students in the admitted class has grown by 29% in the last decade to nearly 23% of admitted students”
as evidence that it does not “limit the number of Asian-American students.” Harvard Mem. 2 (citing
Harvard SMF ¶ 113.3). Not only does this point improperly rely on facts outside the record, see SFFA
Mem. 28-29, but it actually proves the opposite. Most of this growth occurred after SFFA’s lawsuit was
filed. In March 2007, 19.6% of the admitted class was Asian-American. SAF ¶ 148. In March 2014,
just before SFFA filed suit, Harvard reported that 19.7% of the admitted class was Asian-American. Id.
¶ 149. Following the launch of SFFA’s lawsuit in November 2014, the percentage of the admitted
class that was Asian-American mysteriously grew to its highest levels ever: 21.0% in 2015, to 22.1%
in 2016, to 22.2% in 2017, and to 22.7% in 2018. Id. ¶¶ 150-153.4
This kind of manipulative behavior is evidence of discrimination. “If post filing conduct is to
be taken into account at all, it might tend to show the existence of prior discrimination and an effort
to repair the harm after discovery.” Rich v. Martin Marietta Corp., 522 F.2d 333, 346 (10th Cir. 1975); see
Holcomb v. Iona Coll., 521 F.3d 130, 143 (2d Cir. 2008) (“a reasonable finder of fact might determine
that the college hired a black coach as a way of concealing its prior discrimination”); Adorno v. Port
Auth., 258 F.R.D. 217, 233 (S.D.N.Y. 2009) (“a reasonable jury could find the high numbers of
Sergeant promotions in 2005 and 2006 were motivated to conceal past discrimination in promotions
from 2002 to 2004”). Harvard’s attempt to blunt the case SFFA has built by temporarily increasing
the number of Asian Americans it admits will not help its cause. Such behavior confirms that Harvard
knows it is caught red-handed and is looking for a way out.

4 Interestingly, this tinkering with the admissions system in response to public scrutiny appears to be a pattern.
During the period Harvard was being investigated by the Office of Civil Rights (“OCR”) for discrimination against Asian
Americans (1988-1990), it similarly increased the number of Asian Americans it admitted. See Connolly Dec., Ex. 231,
HARV00023177; SFFA SMF ¶¶ 314-15.

13

2.

There is overwhelming statistical evidence of intentional
discrimination against Asian Americans.

Because SFFA’s case is not entirely statistical, it need not show a “gross disparity,” Harvard
Mem. 36, to support an inference of intentional discrimination, SFFA Mem. 6. Regardless, Professor
Arcidiacono found overwhelming evidence of intentional discrimination against Asian-American
applicants. Id. at 7-10. He found discrimination in the personal rating. SFFA SMF ¶¶ 606-623. He
found discrimination in the overall rating. SFFA SMF ¶¶ 624-628. And he found discrimination in the
selection of applicants for admission. SFFA SMF ¶¶ 629-647. Harvard’s systematic discrimination
against Asian Americans dramatically reduced their chances of admissions and their share of the class.
SFFA SMF ¶¶ 648-669. The level of discrimination Professor Arcidiacono found is stark.5
In response, Harvard touts Professor Card’s finding “that the average marginal effect of AsianAmerican ethnicity on applicants’ likelihood of admission ... was statistically indistinguishable from
zero” and his finding of “a positive (though statistically insignificant) association between AsianAmerican ethnicity and the likelihood of admission for women applicants in four of six years (and
overall), and a similar positive (though statistically insignificant) association for all applicants from
California, which has the highest concentration of Asian-American applicants, in five of six years (and
overall).” Harvard Mem. 39-40 (citations omitted). But those findings are the direct result of Professor
Card’s modelling choices. He was able to make these findings only by including in his model specialcategory applicants, the personal rating, the unreliable parental occupation variable, and by ignoring
racial interactions with disadvantaged status. SFFA SMF ¶¶ 750-786. Professor Card has conceded
that, absent those modelling choices, he can neither defend his own findings nor dispute Professor

Harvard mischaracterizes Professor Arcidiacono’s analysis as finding that Harvard imposes a penalty on certain
dockets irrespective of the race of the applicants. Harvard Mem. 40 n.29. Professor Arcidiacono found that certain dockets
were disproportionately affected by Harvard’s campaign of intentional discrimination against Asian Americans. His point
was that dockets with high concentrations of Asian Americans exhibit more discrimination than dockets with low numbers
of Asian Americans for the obvious reason that such dockets, given the academic qualifications of Asian-American
applicants, are especially competitive. Arcidiacono Rebuttal 44, 77-78.
5

14

Arcidiacono’s finding of statistically-significant discrimination against Asian Americans across all six
years. SFFA SMF ¶¶ 787-790.
Professor Card’s modelling choices are indefensible. SFFA Mem. 26-32. First, there was no
justification—other than diluting the effect of race—for including “recruited athletes, applicants
whose parent or parents attended Harvard or Radcliffe as an undergraduate, applicants whose names
appeared on a ‘Dean’s interest’ or ‘Director’s interest’ list, and children of Harvard faculty and staff.”
Harvard Mem. 41. They were excluded from Professor Arcidiacono’s preferred model for the same
reason Professor Card insisted on including them: they are not similarly situated to the rest of the
applicant pool and, as a consequence, including them would only serve to mask the discrimination
against Asian Americans. SFFA Mem. 26-27. Take for example, applicants who receive an academic
rating of 2. Of applicants with that academic rating, the probability of admission for recruited athletes
is 70.63%; for special-category applicants who are not recruited athletes (i.e., legacy, Dean’s and
Director’s Interests List, and children of faculty or staff) it is 42.98%; for all other domestic applicants
it is 7.87%. Connolly(2nd) Dec., Ex. 284 (“Arcidiacono(2nd) Dec.”) at 3-4, ¶ 5. Clearly, these
applicants are apples and oranges.6
That Harvard would treat the small number of Asian Americans who qualify for this special
treatment better than those who are not fortunate enough to be legacies or athletes is anything but a
“strange scheme.” Harvard Mem. 42. It is exactly how one would expect a university determined to
restrict the number of Asian Americans it admits to behave. SFFA Mem. 32-33 (citing Woods v. City of
Greensboro, 855 F.3d 639, 651-52 (4th Cir. 2017)).

6 Harvard’s claim that Professor Arcidiacono concluded that special category applicants are admitted through a
“separate admissions processes” mischaracterizes his report. Harvard Mot. 41-42. Professor Arcidiacono said no such
thing. Instead, Professor Arcidiacono explained that those applicants were not similarly situated to other applicants because
they receive procedural and, more importantly, substantive benefits in the application process that makes the use of race
operate differently for these applicants than it does for other applicants. SMF ¶¶ 750-755.

15

Second, Professor Card should not have included the personal score in his model. Harvard
Mem. 42-43. There is no justification for including a variable that is tainted by racial discrimination.
SFFA Mem. 28-32. Harvard argues that “personal qualities can distinguish the few truly exceptional
students who are admitted from the thousands of accomplished and talented students who apply but
who cannot be offered admission.” Harvard Mem. 42. But all Harvard can say about those “qualities”
is that they “reflect[] a wide range of important”—but “statistically unobservable”—“information that
admissions officers take into account.” Id. at 43. For some reason, though, only Asian-American
applicants consistently lack these “unobservable” qualities. SFFA SMF ¶¶ 606-623. Professor Card’s
unfortunate and unsubstantiated assertion that the personal rating reflects systematic deficiencies in
Asian-American applicants instead of racial stereotyping and discrimination—especially when the
ratings given by alumni interviewers do not exhibit this pattern—is baseless. SFFA Mem. 29-32. Not
one witness in this case, including (when pressed at his deposition) Professor Card himself, was willing
to stand behind that explanation.
Harvard claims that Professor Arcidiacono’s attack on the personal rating is flawed because it
would necessarily mean that there is “bias in favor of Asian-Americans in academic and extracurricular
ratings” because they “show an estimated positive and statistically significant effect of Asian-American
ethnicity.” Harvard Mem. 43. This critique makes no sense. As Professor Arcidiacono explained, “the
case for discrimination is very strong when a group of applicants is strong on the observed
characteristics associated with a particular rating, yet faces a penalty.” Arcidiacono Dec., Ex. B
(“Arcidiacono Rebuttal”) 26. But the observed characteristics associated with the academic and
extracurricular ratings show that Asian Americans compare favorably to other applicants. SFFA Mem.
7. Accordingly, there is an obvious non-discriminatory reason for why they excel in these categories
and, in turn, no reason to suspect that unobserved discrimination in favor of Asian Americans is the

16

true reason for the positive effect. Asian Americans get higher academic and extracurricular scores
because they objectively have better credentials.
The same cannot be said for the personal rating. “Asian-American applicants have observed
characteristics associated with higher personal ratings, yet receive a penalty in their personal ratings.”
Arcidiacono Rebuttal 27. Harvard, therefore, needed to offer an explanation for why nondiscriminatory unobserved factors—as opposed to bias—yielded this unlikely result. In other words,
what is Harvard’s explanation for why its admissions staff systematically concludes that AsianAmerican applicants have less “humor, sensitivity, grit, leadership, integrity, helpfulness, courage,
kindness and many other qualities” than all other applicants? Harvard SMF ¶ 60. Once again, all
Harvard was able to come up with was a racial-stereotyping argument that no witness would support.
SFFA Mem. 28-30. Professor Arcidiacono thus had every reason to reject “the proposition that the
same explanation” for why Asian-American applicants excel in the academic and extracurricular
ratings “applies to the personal rating.” Harvard Mem. 43. The only rational conclusion to be drawn
from the record is that “intentional discrimination is the cause of the perceived association between
race and personal ratings.” Id.
Moreover, it is obvious why discrimination would gravitate toward the personal rating, the
overall rating, and the full-committee selection process. The academic and extracurricular ratings are
based on objective criteria that leave little or no room for the kind of discrimination that would be
difficult to detect. SFFA SMF ¶¶ 81-83. The personal rating, in contrast, is based on “a variety of
‘subjective’ factors, including whether the student has a ‘positive personality’ and ‘others like to be
around him or her,’ has ‘character traits’ such as ‘likability … helpfulness, courage, [and] kindness,’ is
‘humor[ous],’ an ‘attractive person to be with,’ and ‘widely respected,’ is a ‘good person,’ and has good
‘human qualities.’” SFFA SMF ¶ 90 (internal citations omitted). According to Harvard, the admissions
staff “‘sort of add it all up and get a feeling.’” Id. (citation omitted). The overall rating and the full-

17

committee process likewise depend on subjective judgments that can easily mask intentional racial
discrimination. SFFA SMF ¶¶ 99, 124-129.
“Obviously subjective decision making provides an opportunity for unlawful discrimination.”
Bauer v. Bailar, 647 F.2d 1037, 1046 (10th Cir. 1981); see also Pegues v. Mississippi State Employment Serv. of
Mississippi Employment Sec. Comm’n, 699 F.2d 760, 765 (5th Cir. 1983) (“Selection processes which rely
on subjective judgments, despite the corralling by objective standards, provide the opportunity for the
intentional discrimination cognizable in a disparate treatment action.”); Blackwell v. Thomas, 476 F.2d
443, 447 n.7 (4th Cir. 1973) (explaining that “subjective tests” create “wide opportunity for intentional
racial discrimination”). In sum, “evaluations that a plaintiff lacks these [subjective] qualities are more
susceptible of abuse and more likely to mask pretext.” Fowle v. C & C Cola, a Div. of ITT-Continental
Baking Co., 868 F.2d 59, 64 (3d Cir. 1989). It does not take a detective—or a Ph.D—to understand
why Harvard’s mistreatment of Asian-American applicants happens to occur in the three aspects of
its process that are most likely to mask racial discrimination.
Finally, Harvard argues that Professor Arcidiacono’s decision to use a pooled model instead
of a yearly model is “methodologically unsound” because the admissions process is a “year-by-year
process in which applicants to a particular class compete against each other.” Harvard Mem. 44. But
Professor Arcidiacono’s modelling does control for application cycle, and it thereby captures any yearto-year variations in the competitiveness of the applicant pool. Arcidiacono Rebuttal 34-35. Indeed,
his modelling quite accurately predicts variations of this kind. Thus, Professor Arcidiacono’s
methodology captures the purported benefits of the yearly-model approach Professor Card touts.
Moreover, Professor Arcidiacono’s methodology avoids the key defect in Professor Card’s
yearly-modeling approach, which disregards basic statistics principles. “Statistics is largely driven by
the law of large numbers…. In any analysis of discrimination, it is logical and important to use the
largest sample that is relevant to the comparisons involved.” Id. at 34. That is why Professor Card

18

prefers his yearly approach: “treating each year separately decreases the sample size and thus makes it
more difficult to measure the effects of race in Harvard’s admissions decisions.” Id. at 39. By using a
yearly model, “Professor Card achieves results that weaken the effect of race in Harvard’s admissions
process by adding noise to the estimated racial preferences and penalties.” Id. at 35.7 And, lest the
Court forget, Harvard’s own OIR used a pooled model—before Harvard developed a litigationinspired reason to oppose such a thing. SAF ¶ 154.
B.

Harvard engages in racial balancing.

Harvard is not entitled to summary judgment on SFFA’s Count II. See Harvard Mem. 18-21.
The record evidence instead shows that SFFA is entitled to summary judgment. See SFFA Mem. 3339. If the Court disagrees, then a trial is needed to resolve genuine factual disputes that are material to
resolution of this count.
Harvard incorrectly claims there is no evidence that it “targets a particular racial composition
of the admitted class” or “that anyone at Harvard took steps to manipulate admissions rates.” Harvard
Mem. 20. But the record is replete with this evidence. Harvard concedes that it sets

and

engineers its process (including through the use of “one pagers” during the full-committee process)
to ensure that it hits those targets. SFFA Mem. 34-36.8 Harvard then reshapes the admitted class at
the end of the full-committee process (through the “lopping” process and other means) if the racial
balance is off. Id. at 37. This is not conjecture. It is the testimony of Dean Fitzsimmons and Director
McGrath. See id. at 34-38.

Regardless, even using Professor Card’s yearly approach confirms that Harvard imposes a statistically significant
penalty against Asian-American applicants, once the key flaws in his model are corrected. Arcidiacono Rebuttal 39-44.
7

8 Harvard’s attempt to distinguish the University of Michigan Law School’s use of use of daily reports fails. See
Harvard Mem. 19 n.13. The Court in Grutter excused this practice because “the Law School’s admissions officers testified
without contradiction that they never gave race any more or less weight based on the information contained in these
reports.” Grutter, 539 U.S. at 336. But that is not the case here. Fitzsimmons and McGrath
. SFFA SMF ¶¶ 246-255.

19

Harvard tries to sweep aside this evidence in a footnote, Harvard Mem. 19 n.13, but it cannot
escape the facts: the Admissions Office takes steps to ensure
that there is not a
, and that
. SFFA SMF ¶¶ 168-170, 258. Harvard’s admissions process is the very definition of
“working backward to achieve a particular type of racial balance rather than working forward from
some demonstration of the level of diversity that provides the purported benefits.” Parents Involved,
551 U.S. at 729.
Harvard incorrectly argues that SFFA cannot win on its racial balancing claim unless it can
prove that the university “freeze[s] the representation of various racial groups” or aims for a precise
numerical target for each racial group. Harvard Mem. 19-20. The Supreme Court has never held that
the prohibition on racial balancing is violated only if a school shapes the class with surgical precision.
Indeed, the Supreme Court found racial balancing in Parents Involved where the school district sought
“black enrollment of no less than 15 or more than 50 percent.” 551 U.S. at 726. That is because it
violates Title VI no less when “the racial balance at the school falls within a predetermined range”
than if the school picks a more specific target. Id. at 710; see also Cavalier ex rel. Cavalier v. Caddo Par. Sch.
Bd., 403 F.3d 246, 248 (5th Cir. 2005) (finding a school policy requiring “a racial mix of 50% white
and 50% black, plus or minus 15 percentage points” to constitute racial balancing); Perrea v. Cincinnati
Public Schools, 709 F. Supp. 2d 628, 635, 645-46 (S.D. Ohio, Apr. 20, 2010) (a policy requiring the racial
makeup of the staff be “as close as possible” and at most “within plus or minus 10% of the
representative teacher work force” to be racial balancing) (citing Parents Involved, 551 U.S. at 712).
Nor is there any legal authority supporting Harvard’s assertion that SFFA is “limited to” claims
“discussed in [its] expert reports.” Harvard Mem. 21 n.15. Circumstantial evidence (including expert
statistical analysis) is unnecessary if there is “direct evidence of discrimination.” Weston-Smith v. Cooley

20

Dickinson Hosp., Inc., 282 F.3d 60, 64-65 (1st Cir. 2002). Evidence is “‘direct,’” inter alia, if it shows that
the “‘decisionmakers placed substantial negative reliance on an illegitimate criterion in reaching their
decision.’” Sherman v. AI/FOCS, Inc., 113 F. Supp. 2d 65, 70 (D. Mass. 2000) (quoting Price Waterhouse
v. Hopkins, 490 U.S. 228, 277 (1989) (O’Connor, J., concurring)). McGrath’s testimony is plainly direct
evidence of racial balancing. She confessed that Harvard intentionally shapes its class in the very way
the Supreme Court and the First Circuit have condemned as illegal. The same goes for Fitzsimmons.
He testified that Harvard sets racial targets and never misses them. To be sure, such remarkable
testimony is “rarely” secured. Weston-Smith, 282 F.3d at 65. But it was here. And it decisively proves
that Harvard engages in racial balancing.
Indeed, with one notable exception, see infra 21-24, SFFA does not claim that Harvard has
pursued racial balance with mathematical precision. As SFFA has explained, Harvard’s objective is to
keep each racial group with a certain range year over year. SFFA Mem. 34. Viewed in this light,
Harvard’s claim that the “racial breakdown of Harvard’s admitted class of students fluctuates
considerably from year to year” falls apart. Harvard Mem. 19-20. For the Classes of 2014 through
2019, the six years for which SFFA received database information, the admitted share of each minority
racial group was stable: the admitted share of African Americans was always between 10% and 11.7%;
the admitted share of Hispanics was always between 8.8% and 11.6%; and the admitted share of Asian
Americans was always between 19.1% and 20.6%. Arcidiacono(2nd) Dec. at 1-2, ¶ 2; Arcidiacono
Rep. B.1.1-B.1.4. No expert statistical analysis is needed to show that this is not considerable
fluctuation.
The one notable exception is the admission rate for African Americans. For that racial group,
Harvard did act with mathematical precision. As explained, SFFA Mem. 38-39, Professor Arcidiacono
found that “Harvard maintained a floor on the admission rate for single-race African Americans in
the classes of 2017, 2018, and 2019.” SFFA SMF ¶ 717. In each of these years, the admission rate for

21

single-race African Americans was “virtually identical” to the admission rate of all other domestic
applicants (a difference of -0.025%, 0.064%, and -0.025% for the classes of 2017, 2018, and 2019,
respectively). Id. ¶ 718. According to Professor Arcidiacono, the probability that this pattern occurred
by chance is “less than two-tenths of one percent.” SFFA SMF ¶ 720. Importantly, Harvard does not
dispute Professor Arcidiacono’s findings. Harvard Mem. 20-21. Instead, Harvard throws out various
theories for why this was all due “simply to chance.” Connolly Ex. 253, Card Rebuttal Report (“Card
Rebuttal”) 80; Harvard Mem. 21. None of Harvard’s theories has merit.
Harvard claims, for example, that SFFA lacks “documentary support” indicating that Harvard
purposefully implemented a floor on single-race African Americans. Harvard Mem. 20. Of course,
when SFFA has strong documentary support, Harvard protests that the evidence is irrelevant because
the proof must be statistical. See supra 20. But Harvard is wrong in any event. First, in early 2013, when
the floor was first implemented, Harvard officials internally expressed concern at the public perception
that Harvard was admitting a low number of African Americans. SFFA SMF ¶¶ 726-728. Harvard’s
concern stemmed from the federal methodology for reporting admissions statistics by race—the
Integrated Postsecondary Education Data System (“IPEDS”). Unlike Harvard’s “new methodology,”
the IPEDS reporting system requires Harvard to report a student as African American only if the
student is single-race African American—i.e., the student is not also Hispanic or multiracial. SFFA
SMF ¶¶ 180, 725. In an article drafted in early 2013, Dean Fitzsimmons lamented that “[t]he IPEDS
reporting system leads to significantly underreported percentages for all ethnicities except Hispanic
Americans” and, in particular, “self-identified Asian Americans and African Americans make up a
significantly greater portion of Harvard College’s class of 2016 than reported by the federal
government.” SFFA SMF ¶ 727; compare Connolly Ex. 139 at HARV000032520 with
HARV000032521.

22

Second, the evidence shows that Harvard took steps in early 2013 to give itself the tools to
implement this floor. Before January 12, 2013, the one-pagers that Dean Fitzsimmons received did
not contain IPEDS statistics. But starting in January 2013, the one-pagers contained admissions
statistics by racial groups under the IPEDS methodology. In other words, the Admissions Office
began regularly tracking admissions statistics for single-race African Americans at the precise time the
floor was implemented. SFFA SMF ¶¶ 729-30.
Third, Harvard relaxed its standards for admitting single-race African Americans beginning
with the 2017 admissions cycle—exactly when the floor is first observed. Before then, single-race
African Americans admitted to Harvard on average had similar academic indexes to those of multiracial African Americans. SFFA SMF ¶ 732. Starting in 2013 (during the cycle for the Class of 2017),
however, single-race African-American admits had lower academic indexes than multi-racial AfricanAmerican admits. Id. This is striking because it is just what would be expected if Harvard began
imposing a floor on single-race African-American admit rates after the Class of 2016. Id. ¶¶ 733-734.9
Harvard cites Professor Card’s conclusion in his rebuttal report that the probability of finding
a similar pattern increases (to a still highly improbable 17%) if all the “different ways to compare
admissions rates across racial groups” are searched. Harvard Mem. 21; Card Rebuttal 80 (“There are
eight racial categories under the New Methodology, eight under the IPEDS methodology, and at least
seven under the Old Methodology, for a total of 23 groups. With 23 racial groups and four possible
three-year stretches to search over, Prof. Arcidiacono has 92 opportunities (23 multiplied by four) to
find the pattern of interest.”). But this argument assumes each of these 92 opportunities is equally
likely; they demonstrably are not. As explained, there is documentary evidence indicating that Harvard

9 As Harvard notes, Harvard Mem. 21, when Professor Arcidiacono submitted his first report, he was unaware
of pre-2013 IPEDS reporting because the statistics were not included in Harvard’s main data file. But this does not
undermine his findings—it strengthens them. That the IPEDS data were reported differently in the admissions database
for the three years of the floor reinforces that a policy change occurred in 2013. SFFA SMF ¶ 731.

23

implemented a floor specifically for single-race African Americans starting with the Class of 2017.
Similarly, given the admissions penalties Asian American suffer and that Harvard has never expressed
a “concern about having too few white people,” Connolly Ex. 16, McGrath 249:15-20, it would be
illogical to implement a floor to ensure the admission of these groups. Harvard’s inclusion of these
possibilities serves merely to distract from the undisputed statistical evidence of a floor.
Finally, Harvard claims that it would have no reason to impose a floor “in this particular way”
because it does not report admission rates by race publicly or “report[] the racial composition of the
class to the Harvard community” by the IPEDS methodology. Harvard Mem. 20; Connolly Ex. 252,
Card Report (“Card Rep.”) 88. But Harvard, of course, does not argue that it is implausible that it
would impose some type of floor on the admission of African Americans. Indeed, Harvard gives
African Americans enormous preferences and has warned that their share of the admitted class would
fall sharply without racial preferences. See infra 25-31. And after Harvard implemented this floor, the
share of the admitted class that was single-race African-American jumped 18% (from 7.90% for the
Class of 2016 to 9.36% for the Class of 2017) and, not surprisingly, remained stable the two following
years of the floor (9.65% for the Class of 2018 and 9.50% for the Class of 2019). Arcidiacono(2nd)
Dec. at 3, ¶ 4. That Harvard might choose non-transparent means to achieve its discriminatory goals
is not surprising at all. See Arcidiacono Rebuttal 56.
At base, the parties have irreconcilable explanations for why each racial group’s admissions
statistics stay within a narrow band year over year. In SFFA’s view, the evidence proves that Harvard
seeks a certain racial balance and achieves it through direct manipulation of the admissions process.
Harvard counters that the evidence in no way suggests the Admissions Office is “targeting a particular
composition of the admitted class.” Harvard Mem. 19 n.13. Rather, the results are just the coincidental
byproduct of a system of “whole-person review” that “considers the entirety of every applicant’s file,
subjects every applicant to the same rigorous review as all others, treats race or ethnicity as but one of

24

many factors that might bear on the perspective the applicant might bring to Harvard, and employs
no quotas.” Id. at 17. Harvard, in other words, expects the factfinder to believe that over the six-year
period at issue here, the Admissions Office made hundreds of thousands of unique “whole person”
admissions decisions and, by pure happenstance, this is how it all shook out. No rational factfinder
could accept that farfetched explanation.
C.

Harvard is not using race merely as a “plus” factor to achieve student body
diversity.

Harvard is not entitled to summary judgment on SFFA’s Count III. See Harvard Mem. 18, 2125. The record evidence instead shows that SFFA is entitled to summary judgment. See SFFA Mem.
39-41. If the Court disagrees, then a trial is needed to resolve genuine factual disputes that are material
to resolution of this count.
Harvard spills considerable ink explaining how much it values diversity. Harvard Mem. 7-11,
18. But SFFA does not challenge Harvard’s stated belief that diversity is important to “its pedagogical
mission” or that Harvard’s judgment in this regard is entitled to deference under controlling precedent.
Id. at 17. That has no bearing, however, on whether Harvard is actually pursuing that stated objective
in a narrowly-tailored way. As the Supreme Court has explained, “there must still be a further judicial
determination that the admissions process meets strict scrutiny in its implementation .... On this point,
the University receives no deference.” Fisher v. University of Texas at Austin, 570 U.S. 297, 311 (2013)
(“Fisher I”). Harvard’s “recitation of a ‘benign’ or legitimate purpose for” its use of race thus “is entitled
to little or no weight. Strict scrutiny does not permit a court to accept a school’s assertion that its
admissions process uses race in a permissible way without a court giving close analysis to the evidence
of how the process works in practice.” Id. at 313 (citation omitted); see, e.g., Fisher v. University of Texas
at Austin, 136 S. Ct. 2198, 2208-2215 (2016) (“Fisher II”). Close examination of how Harvard’s system
works proves that it is not narrowly tailored.

25

Under Grutter, a university’s use of racial preferences in admissions is narrowly tailored only if
race is (1) used as a “plus factor” in order to (2) achieve “student body diversity.” Grutter v. Bollinger,
539 U.S. 306, 335 (2003); see also Harvard Mem. 18, 21; SFFA Mem. 39. In seeking summary judgment,
Harvard ignores entirely the requirement that race be used only to achieve student body diversity. Harvard
Mem. 21-25; see Doc. 1 at 108, ¶ 461 (alleging in Count III that “Harvard is not complying with the
requirement of narrow tailoring because it is not using race merely as a ‘plus’ factor in admissions
decision in order to achieve student body diversity”). It ignores this obligation for good reason.
Harvard is not pursuing the only conception of “student body diversity” the Supreme Court has ever
endorsed—enrolling a “critical mass” of underrepresented minority students. Grutter, 539 U.S. at 318;
SFFA Mem. 3, 39-40. Indeed, the Supreme Court endorsed the Harvard Plan in Bakke only because
it was led to believe “Harvard ... had minimum goals for minority enrollment, even if it had no specific
number firmly in mind.” Grutter, 539 U.S. at 335-39.
If that was ever true, it no longer is. Harvard concedes that it has never considered the concept,
it has not sought to achieve that goal, and it continues to have no interest in critical mass. SFFA Mem.
39-40. The words “critical mass” never even appear in Harvard’s memorandum or statement of facts.
To be sure, not everyone who has supported using race in admissions believed in the “critical mass”
conception of diversity. See Grutter, 539 U.S. at 387-95 (Kennedy, J., dissenting). But, as Harvard
knows, dissents are not law. Perhaps the Supreme Court someday will reconsider the “critical mass”
rationale. It may even rethink the use of race in admissions altogether. Until then, however, Grutter
controls. The Supreme Court has the “prerogative of overruling its own decisions,” Rodriguez de Quijas
v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989), and lower courts must follow them until it
does, see, e.g., Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll. (Harvard Corp.), No.
14-141, 2017 WL 2407254, at *1 (D. Mass. June 2, 2017) (dismissing Count VI of SFFA’s complaint
because it “would require this Court to overrule Supreme Court precedent, something it decidedly

26

cannot do”). Harvard has boldly declared its refusal to comply with Grutter. The Court therefore must
find Harvard in violation of Title VI.
Regardless, Harvard is not pursuing any other defensible conception of student body diversity.
At a minimum, the use of racial preferences must be “‘limited in time’ and ‘have a logical end point.’”
SFFA Mem. 39 (quoting Grutter, 539 U.S. at 342); see Fisher I, 570 U.S. at 312 (“In Grutter, the Court
approved the plan at issue upon concluding that it ... was limited in time”). Even the most ardent
supporters of racial preferences accept this precondition. See Schuette v. Coalition to Defend Affirmative
Action, Integration & Immigrant Rights & Fight for Equality by Any Means Necessary (BAMN), 134 S. Ct.
1623, 1660 (2014) (Sotomayor, J., dissenting) (“A Grutter-compliant admissions policy ... must be
limited in time.”). Harvard cannot meet this requirement. In fact, Harvard turns this indispensable
requirement on its head, adopting an institutional position that the use of race always will be necessary.
SFFA Mem. 40. A system of racial preferences designed to operate in perpetuity—i.e., that no level of
minority enrollment could ever make Harvard sufficiently diverse such that the use of race would no
longer be necessary—cannot be narrowly tailored.10
Unsurprisingly, then, Harvard cannot even decide if the level of minority enrollment matters
to its ill-defined and self-made conception of diversity. At times, Harvard claims that race matters only
at the individual level and that it has no aggregate racial-diversity goal at all. See, e.g., Harvard Mem. 23
(asserting that “the consideration of race in the overall rating ‘depends on the individual case,’ and
may be done ‘to reflect the strength of the case and to provide a slight tip for some students’”) (citation
omitted). That would be consistent with President Faust’s testimony that she is not “‘concerned with
the overall representation of particular groups,’ and that “there is no ‘particular designated level’ of

10 Harvard’s suggestion that it might “reexamine the availability of race-neutral alternatives five years from now”
is meaningless. Harvard Mem. 26 n.17. Harvard has nothing to “reexamine” given that it has not identified how it would
(or even could) determine when its amorphous diversity interest would be met. The promise is especially implausible given
that Harvard looked at race-neutral alternatives only after it was sued by SFFA. SFFA SMF ¶ 826.

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representation of a racial group necessary to obtain the benefits of diversity.” SFFA SMF ¶ 885
(citations omitted). At other times, Harvard argues that it does aim for a minimum level of minority
enrollment and does pay “‘attention to numbers.’” Harvard Mem. 19 n.13 (quoting Grutter, 539 U.S.
at 336) (citations and alteration omitted). It is presumably on that basis that Harvard complains that a
drop in “the proportion of African-American students ... from 14% to 6%, and the proportion of
Hispanic or Other students ... from 14% to 9% ... would not allow [it] to achieve its educational
objectives.” Harvard Mem. 27-28.
Harvard thus takes two irreconcilable positions: (1) race is an individualized—not a groupbased—factor and thus Harvard “has in mind no specific number of students of any given racial or
ethnic background who must be on campus in order for Harvard’s diversity-related educational
objectives to be satisfied”; but (2) Harvard must use racial preferences to achieve a minimum (though
unstated) level of minority enrollment because it cannot become a “truly inclusive community” if there
is “a significant decline in African-American and Hispanic enrollment.” Id. at 28-29 (citations and
quotations omitted). Both cannot be true. But given that it must reconcile its policies to controlling
precedent with which it has never seriously sought to comply, it is understandable why Harvard would
struggle to get its story straight. Harvard’s failure to narrowly tailor its use of race to Grutter’s “critical
mass” interest is, by itself, fatal under strict scrutiny.
Even if Harvard were pursuing a permissible end, however, its admissions system still is not
narrowly tailored given that race is far more than a “plus factor.” SFFA Mem. 40-41. Harvard’s
arguments to the contrary, Harvard Mem. 21-25, miss the mark. To begin, Harvard mischaracterizes
the legal inquiry. According to Harvard, race is no more than a “plus factor” so long as it “does not
overwhelm other considerations.” Id. at 22. Under that approach, Harvard says, race is merely a “plus
factor” even if it is given as much weight as a “high academic, extracurricular, or personal rating.” Id.
at 24-25. That is wrong. The relative size of the preference was one of the chief reasons the University

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of Michigan’s point-based system was unconstitutional. See Gratz v. Bollinger, 539 U.S. 244, 270 (2003)
(highlighting that the racial preference accounted for “one-fifth of the points needed to guarantee
admission”); see id. at 277-78 (O’Connor, J., concurring) (same). In Fisher II, by contrast, the Supreme
Court accepted the way the University of Texas at Austin used race because it was “but a ‘factor of a
factor of a factor’ in the holistic-review calculus.” 136 S. Ct. at 2207.
Regardless, Harvard cannot show that it uses race merely as a “plus” factor even under its own
standard. Harvard contends that it uses race permissibly because, for the class of applicants as a whole,
“it is not possible to offer any meaningful prediction of whether an applicant will be admitted based
solely on his or her race” and other factors “explain more of the variability in admissions decisions
than race.” Harvard Mem. 23-24. This is a dodge. SFFA has recognized that “racial preferences are
not relevant for uncompetitive applicants.” Arcidiacono Rebuttal 49-50. “No one would claim
otherwise, given that Harvard is a highly selective school where more than 90% of all applicants are
rejected.” Id. at 49. Moreover, by analyzing the class of applicants as a whole, Harvard ignores the
relevant inquiry: the extent to which race matters for those minority groups actually receiving a
preference because of their race.11
On this question, the answer is not in doubt. As explained, both Professor Arcidiacono and
OIR found that Harvard affords massive racial preferences to African Americans and Hispanics.
SFFA Mem. 40-41. Professor Arcidiacono, in particular, found that being African American more
than quadruples an applicant’s chance of admission, and being Hispanic more than doubles an applicant’s
chance of admission. Arcidiacono Rebuttal at 70-71. But the preferences for African Americans and
Hispanics are massive under Professor Card’s approach too. “Without making any adjustments to

11 To further illustrate the point, imagine a scenario in which Harvard admitted 5% of its applicant pool through
a strict racial quota and the remaining 95% through race-neutral factors. Under that scenario, it still would be true that
race did not affect most applicants, but this of course would be no defense of a racial quota for 5% of the applicants.
Arcidiacono Rebuttal 49.

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(extracurricular rating of 1); and those with
“outstanding” personal qualities (personal rating of 1). Ellsworth Ex. 57, HARV00015414-15. A
student’s race thus is not “just one factor of many factors that [are] considered in an applicant’s
folder.” Harvard Mem. 23 n.16 (citation omitted). For many applicants, race is determinative of their
admission to Harvard.
D.

Harvard neither gave serious, good faith consideration to nor is taking
advantage of workable race-neutral alternatives.

Harvard is not entitled to summary judgment on SFFA’s Count V. See Harvard Mot 25-35.
The record evidence instead shows that SFFA is entitled to summary judgment. See SFFA Mem. 4245. If the Court disagrees, then a trial is needed to resolve genuine factual disputes that are material to
resolution of this count.
Since Grutter, Harvard has been “required” to engage in “‘serious, good faith consideration of
workable race-neutral alternatives that will achieve the diversity the university seeks.” Harvard Mem.
25 (quoting Grutter, 539 U.S. at 339). Harvard did not just fail to comply with this command; Harvard
ignored it. SFFA Mem. 42-43. Indeed, Harvard admits that it did not begin to consider race-neutral
alternatives until 2017—nearly fifteen years after the Supreme Court imposed the obligation. Harvard
Mem. 25. Even then, Harvard’s consideration of race-neutral alternatives was neither serious nor in
good faith. It instead was a post hoc charade designed to justify a preordained outcome. SFFA Mem.
42-44. As a result, Harvard’s argument that its use of race remains necessary to achieve student body
diversity fails at the outset. See Fisher I, 570 U.S. at 312-14. Harvard is subject to the same legal
obligations as every other university, and it has no excuse for its blatant refusal to follow the Supreme
Court’s clear instructions.
Even if Harvard had seriously considered race-neutral alternatives in good faith, its argument
for continuing to use racial preferences would still fail. “Narrow tailoring also requires ... a careful
judicial inquiry into whether a university could achieve sufficient diversity without using racial
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classifications.” Id. at 312 (internal citation omitted). “The reviewing court,” in other words, “must
ultimately be satisfied that no workable race-neutral alternatives would produce the educational
benefits of diversity. If a nonracial approach ... could promote the substantial interest about as well
and at tolerable administrative expense, then the university may not consider race.” Id. (citations and
quotations omitted). Harvard cannot meet this rigorous standard given the availability of nonracial
approaches that can achieve its diversity interest without engaging in the divisive practice of classifying
applicants by race. SFFA Mem. 44-45.
Harvard’s principal argument is that eliminating racial preferences would decrease the AfricanAmerican share of the class “from 14% to 6%” and the Hispanic share of the class “from 14% to
9%.” Harvard Mem. 28. But this conclusion assumes that Harvard would eliminate racial preferences
without adopting any of the nonracial approaches that SFFA’s expert—Richard Kahlenberg—has
identified. Harvard makes a strawman argument because it knows that implementing these alternatives
would keep this “sort of dramatic decline,” id., from occurring, SFFA Mem. 44 (citing SFFA SMF
¶¶ 858-882). Under Mr. Kahlenberg’s models (Kahlenberg Simulation 6 and 7), the African-American
share of the class would be 10% and the Hispanic share would increase to 19% or 20%. SFFA SMF
¶ 876. Even under Professor Card’s model (Card Simulation 4x), the African-American share of the
class would be 10% and the Hispanic share would increase to 17%. Id. As Harvard put it: adopting
these alternatives would “avoid significant changes in the proportion of African American, Hispanic
and Other students.” Harvard SMF ¶ 188. In fact, the representation of these “historically underserved
groups” would remain roughly the same or increase. Harvard Mem. 28. There would be no decline in
minority representation—let alone a dramatic one.
Because Harvard cannot argue that adopting a race-neutral alternative policy (any of the three
proposals identified by SFFA’s expert) would make it less diverse, Harvard is left to argue that this

32

change in policy would lead to “an unacceptable sacrifice of Harvard’s educational mission.” Id. at 29.
That claim is baseless.
To begin, Harvard argues that to admit a class that is “comparable in diversity” to its current
class, it would need to increase socioeconomic preferences so much that they would “outweigh almost
every consideration in the admissions process; for many applicants, the boost would be larger than
that given to candidates with the most exceptional academic, extracurricular, personal, and athletic
ratings.” Harvard Mem. 29-30 (citations and quotations omitted). That is untrue. For example, one of
Professor Card’s simulations, Card Simulation 4x, provides greater diversity than the status quo and
uses a socioeconomic preference that is smaller than the preference Harvard currently gives to recruited
athletes. SMF ¶ 876; Card Rebuttal 96-97. Harvard reaches its conclusion by myopically defining
“diversity” as replicating the level of African-American enrollment from its most recent class (to the
exclusion of all other considerations). Card Rep. 107-08, ¶ 239. Race-neutral alternatives must work
“about as well” as racial preferences. Fisher I, 570 U.S. at 312. They are not required precisely to
replicate racial preferences in every respect.
Harvard also incorrectly asserts that “the proportion of admitted students receiving the highest
academic ratings (1 or 2) would drop substantially, as would the fraction with top extracurricular and
personal ratings,” which would undermine Harvard’s “reputation for academic excellence.” Harvard
Mem. 30 (citations and quotations omitted). Harvard’s “reputation for academic excellence” would
remain undiminished. Average test scores, GPA, and the Academic Index would remain virtually the
same. SAT scores, for example, would average at the 98th percentile. Kahlenberg Dec., Ex. B.
(“Kahlenberg Rebuttal”) 26 & n.103, 33. The change in the percentage of students receiving an
academic rating of 1 or 2 would be modest. Kahlenberg Dec., Ex. C (“Kahlenberg Supp. Rep.”) 2-3;
SFFA SMF ¶¶ 876, 890. Moreover, Harvard ignores that, as compared to its current system, many

33

more of the high-achieving students would have overcome socioeconomic obstacles, something
Harvard claims to value. Kahlenberg Supp. Rep. 2-3.
Harvard’s objection to eliminating legacy, donor, deferred admission, and faculty and staff
preferences is equally weak. Harvard claims that if it “eliminated those practices, and also eliminated
race conscious admissions, then (according to Dr. Card’s analysis) the number of African American,
Hispanic, and Other students would decrease by half from current levels.” Harvard Mem. 33 (citing
SMF ¶ 198). Again, that might happen only if Harvard refused to couple elimination of these practices
with an increased preference based on socioeconomic status. Kahlenberg Rebuttal 10-11. SFFA has
made no such proposal. Harvard cannot prove that a race-neutral alternative would be unworkable by
assuming that it would not take other steps to promote student body diversity if racial preferences
were no longer a permissible means of doing so. Cutting off your nose to spite your face is not a viable
legal defense.
Harvard alternatively argues that eliminating these admissions preferences would jeopardize
what it vaguely calls “essential institutional objectives.” Harvard Mem. 29. In particular, Harvard
claims that alumni would be unwilling “to volunteer for a variety of activities” or provide “financial
support” if their children did not receive an admissions preference. Id. at 32-33. Similarly, Harvard
argues that eliminating the admissions preference for children of faculty and staff “would place [it] at
a significant competitive disadvantage in recruiting personnel.” Id. at 33 (citation and quotations
omitted). Each of these arguments is mistaken.
First off, preserving these “essential institutional objectives” is not a justification that would
render race-neutral alternatives unworkable under Grutter. Race-neutral alternatives are unworkable if
they would not “produce the educational benefits of diversity.” Fisher I, 570 U.S. at 312 (emphasis
added); see also Fisher II, 136 S. Ct. at 2214 (race-neutral alternatives must be “‘available’ and ‘workable’
means through which the University could have met its educational goals”) (emphasis added). Eliminating

34

these kinds of preferences would in no way force Harvard to “choose between a diverse student body
and a reputation for academic excellence,” Fisher II, 136 S. Ct. at 2213, and Harvard does not even try
to argue otherwise.
If such “institutional objectives” were legitimate justifications under Grutter, then Harvard’s
desire to continue admitting applicants off the Dean’s/Director’ Interest List and the Z-List would be
legitimate justifications too. The Dean’s List “identifies the applicants who have been brought to Dean
Fitzsimmons’ attention because of their connections or importance to Harvard,” i.e., their relationship
with a donor or potential donor. SFFA SMF ¶¶ 294-295. If the continued financial support of alumni
is essential, then collecting donations from non-alumni would be as well. Indeed,

SFFA SMF ¶ 297.
The same would go for the secretive policy of offering deferred admission through the Z-List. SFFA
SMF ¶ 149. Harvard presumably has some important “institutional” reason for offering deferred
admission to candidates
SFFA SMF ¶ 147; see also id. ¶ 290 (“For the Classes of 2014-2019, 46.5% of students on the
Z-List were legacies (compared to less than 3% of the applicant pool as a whole).”); id. ¶ 302 (“For
the Classes of 2014-2019, 58.8% of Z-List students were on the Dean’s/Director’s Interest List.”).
Harvard wisely has not defended such policies as bearing on the workability of race-neutral
alternatives. But that makes its defense of legacy, faculty, and staff preferences untenable. There is no
basis for distinguishing preferences for children of legacies, faculty, and staff from those for donors
and other connected individuals whom Harvard deems important enough to grant special status. None
of these institutional interests advances Harvard’s “educational objectives.” Grutter, 539 U.S. at 315
(emphasis added).

35

Regardless, Harvard has not offered any empirical support for its assertion that eliminating
legacy preferences would “imperil[]” alumni donations and volunteer efforts. See Harvard Mem. 3233. The Smith Committee and Dr. Simmons simply assert it to be true. Id. By contrast, Mr. Kahlenberg
put forth evidence proving that eliminating legacy preferences is a workable race-neutral strategy.
“Among the top 10 universities in the widely-cited Shanghai rankings, four (Caltech, U.C. Berkeley,
Oxford, and Cambridge) do not employ legacy preferences.” Kahlenberg Dec., Ex. A (“Kahlenberg
Rep.”) 32. In addition, an examination of the top 100 universities in U.S. News & World Report found
“no evidence that legacy preference policies themselves exert an influence on giving behavior.” Id. at
32-33.12 Harvard’s argument for retaining a preference for children of faculty and staff fails for similar
reasons. There is no empirical support for the proposition that Harvard would lose out on faculty and
staff if their children are forced to compete on equal footing with other applicants. The Smith
Committee and Dr. Simmons again simply assert it as true. See Kahlenberg Rebuttal 12. That falls far
short of meeting Harvard’s burden under strict scrutiny.
Finally, Harvard identifies various practices that it contends it is already doing sufficiently
(recruiting socioeconomically disadvantaged students and providing financial aid) or believes is an
unworkable race-neutral alternative (adopting a “mechanical scheme of geographic distribution,”
increasing transfer students, or eliminating early action). But the efficacy of these policies is immaterial
to the dispute at this stage because, with one minor exception,13 none of the three simulations would
require Harvard to adopt any of these policies. In any case, these arguments are all misplaced. Harvard

12 At most, the testimony from the members of the Smith Committee indicates that, on occasion, they have seen
alumni give money to Harvard only because they believed (possibly correctly) that doing so would increase the chances of
their child being admitted. But even if Harvard could show that eliminating legacy preferences would have some minimally
negative impact on alumni giving, its argument would still fail given the university’s $37 billion dollar endowment. See
SFFA SMF ¶ 896.
13 Kahlenberg Simulation 6 (unlike Card 4x and Kahlenberg Simulation 7) removes the preference for early action
applicants. As a comparison of Simulation 6 and Simulation 7 shows, however, this change does not make either of the
modeled race-neutral alternatives unworkable. SFFA SMF ¶¶ 875-76.

36

could increase its recruiting efforts among less wealthy students from regions of the country to which
Harvard devotes little attention, SFFA SMF ¶ 897; increase its financial aid commitment, id. ¶ 896;
take into geography into consideration by, for instance, using zip codes, id. ¶ 900; Kahlenberg Supp.
Rep. at 4; admit more transfers from community colleges, SFFA SMF ¶ 899; and eliminate the
preference for those applying early action (as opposed to ending early action entirely), id. ¶ 875. Such
measures would help Harvard increase student body diversity beyond current levels. Id. ¶¶ 895-900.
In the end, Harvard asks this Court to accept on faith that eliminating preferences that mostly
benefit wealthy and white applicants would “entail an unacceptable sacrifice of Harvard’s educational
mission.” Harvard Mem. 29, 34-35. In so doing, however, Harvard seeks the very deference that the
Supreme Court found to be fundamentally incompatible with strict scrutiny. To be sure, “deference
must be given to the University’s conclusion, based on its experience and expertise, that a diverse
student body would serve its educational goals.” Fisher II, 136 S. Ct. at 2208 (citations and quotations
omitted). But that is not the issue. This dispute is over whether “a nonracial approach could promote”
the educational benefits of diversity “about as well and at tolerable administrative expense” as racial
preferences. Fisher I, 570 U.S. at 312 (citations and quotations omitted). On that important narrowtailoring issue, “no deference is owed” to Harvard and, accordingly, the university “bears the burden”
of showing that no such alternative is “available and workable.” Fisher II, 136 S. Ct. at 2208 (citation
and quotations omitted). Absent deference to unsubstantiated and counterfactual predictions, Harvard
cannot carry that heavy burden.
CONCLUSION
For the foregoing reasons, SFFA respectfully requests that the Court deny Harvard’s motion for
summary judgment.

37

Dated: July 30, 2018

Respectfully submitted,

Adam K. Mortara
BARTLIT BECK HERMAN PALENCHAR & SCOTT LLP
54 West Hubbard Street, Suite 300
Chicago, IL 60654
312.494.4400
[e-mail]
John M. Hughes
BARTLIT BECK HERMAN PALENCHAR & SCOTT LLP
1801 Wewatta Street, Suite 1200
Denver, CO 80202
303.592.3100
[e-mail]
Paul M. Sanford BBO #566318
BURNS & LEVINSON LLP
One Citizens Plaza, Suite 1100
Providence, RI 02903
617.345.3000
[e-mail]

/s/ William S. Consovoy
William S. Consovoy
Thomas R. McCarthy
J. Michael Connolly
CONSOVOY MCCARTHY PARK PLLC
3033 Wilson Boulevard, Suite 700
Arlington, Virginia 22201
703.243.9423
[e-mail]
[e-mail]
[e-mail]
Patrick Strawbridge BBO #678274
CONSOVOY MCCARTHY PARK PLLC
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Michael H. Park
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212.247.8006
[e-mail]

Attorneys for Plaintiff Students for Fair Admissions, Inc.

38

CERTIFICATE OF SERVICE
I hereby certify that this document filed through the CM/ECF system will be sent
electronically to the registered participants ass identified on the Notice of Electronic Filing.
/s/ William S. Consovoy
William S. Consovoy

39