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

Filing 455

MOTION for Leave to File to Participate as Amici Curiae by Harvard-Radcliffe Black Students Association, Kuumba Singers of Harvard College, Fuerza Latina of Harvard, Native Americans At Harvard College, Harvard-Radcliffe Asian American Association, Harvard-Radcliffe Asian American Women's Association, Harvard Asian American Brotherhood, Harvard Vietnamese Association, Harvard-Radcliffe Chinese Students Association, Harvard Korean Association, Harvard Japan Society, Harvard South Asian Association, Harvard Islamic Society, Task Force on Asian and Pacific American Studies at Harvard College, Harvard Phillips Brooks House Association, Harvard Minority Association of Pre-Medical Students, Coalition for a Diverse Harvard, First Generation Harvard Alumni, Native American Alumni of Harvard University, Harvard University Muslim Alumni, Harvard Latino Alumni Alliance. (Attachments: # 1 Exhibit Amicus Brief by Harvard Student and Alumni Organizations in Support of Defendants' Motion for Summary Judgment, # 2 Exhibit Declaration, # 3 Exhibit Declaration, # 4 Exhibit Declaration, # 5 Exhibit Declaration, # 6 Exhibit Declaration, # 7 Exhibit Declaration, # 8 Exhibit Declaration, # 9 Exhibit Declaration, # 10 Exhibit Declaration, # 11 Exhibit Declaration, # 12 Exhibit Declaration, # 13 Exhibit Declaration, # 14 Exhibit Declaration, # 15 Exhibit Declaration, # 16 Exhibit Declaration, # 17 Exhibit Declaration)(Thayer, Kenneth)

EXHIBIT 1

UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF MASSACHUSETTS
BOSTON DIVISION

STUDENTS FOR FAIR ADMISSIONS, INC,
Plaintiff,
v.
PRESIDENT AND FELLOWS OF
HARVARD COLLEGE (HARVARD
CORPORATION),

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

Defendant.

AMICI CURIAE BRIEF OF
HARVARD-RADCLIFFE BLACK STUDENTS ASSOCIATION,
KUUMBA SINGERS OF HARVARD COLLEGE,
FUERZA LATINA OF HARVARD,
NATIVE AMERICANS AT HARVARD COLLEGE,
HARVARD-RADCLIFFE ASIAN AMERICAN ASSOCIATION,
HARVARD-RADCLIFFE ASIAN AMERICAN WOMEN’S ASSOCIATION,
HARVARD ASIAN AMERICAN BROTHERHOOD,
HARVARD VIETNAMESE ASSOCIATION,
HARVARD-RADCLIFFE CHINESE STUDENTS ASSOCIATION,
HARVARD KOREAN ASSOCIATION,
HARVARD JAPAN SOCIETY,
HARVARD SOUTH ASIAN ASSOCIATION,
HARVARD ISLAMIC SOCIETY,
TASK FORCE ON ASIAN AND PACIFIC AMERICAN
STUDIES AT HARVARD COLLEGE,
HARVARD PHILLIPS BROOKS HOUSE ASSOCIATION,
HARVARD MINORITY ASSOCIATION OF PRE-MEDICAL STUDENTS,
COALITION FOR A DIVERSE HARVARD,
FIRST GENERATION HARVARD ALUMNI,
NATIVE AMERICAN ALUMNI OF HARVARD UNIVERSITY,
HARVARD UNIVERSITY MUSLIM ALUMNI, AND
HARVARD LATINO ALUMNI ALLIANCE
IN SUPPORT OF DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT

TABLE OF CONTENTS
TABLE OF AUTHORITIES ..........................................................................................................ii
INTERESTS OF AMICI CURIAE .................................................................................................1
INTRODUCTION ..........................................................................................................................1
I.

Consideration of Race, as Part of Harvard’s Holistic and Multi-Faceted Admissions
Policy, Is Constitutional Under Long-Established Supreme Court Precedent and
Essential to Foster a Diverse and Inclusive Learning Environment. ..................................4
A.

B.

Race Consciousness in Admissions Is Essential to Achieve the Benefits of
Diversity Due to Discrimination in Standardized Testing. .....................................8

C.
II.

Harvard’s Race-Conscious Admissions Policy Is Permissible Under
Well-Settled Supreme Court Precedent and Necessary to Promote Racial and
Ethnic Diversity. .....................................................................................................4

The Need for Diversity and Inclusion Continues to Be a Pressing Issue at
Harvard. ................................................................................................................ 15

A Race-Conscious Admissions Policy That Fosters Diversity of Underrepresented
Students Does Not Conflict with the Interests of Asian Americans. ................................ 20
A.

Asian Americans Benefit from Race-Conscious Remedies. ................................ 21

B.

Serious Flaws in SFFA’s Statistical Analysis Undermine SFFA’s
Arguments to Eliminate Race-Conscious Admissions. ........................................ 23

C.

SFFA’s Requested Remedy—the Erasure of Race from Harvard’s Admissions
Process—Would Not Address the Alleged Discrimination Against Asian
Americans. ........................................................................................................... 26

CONCLUSION ............................................................................................................................. 29

i

TABLE OF AUTHORITIES
PAGE(S)
CASES:
Fisher v. Univ. of Tex.,
570 U.S. 297 (2013) .................................................................................................................5-6
Fisher v. Univ. of Tex.,
136 S. Ct. 2198 (2016) ........................................................................................................ 2, 4-5
Gratz v. Bollinger,
539 U.S. 244 (2003) ....................................................................................................................5
Grutter v. Bollinger,
288 F.3d 732 (6th Cir. 2002) ......................................................................................................9
Grutter v. Bollinger,
539 U.S. 306 (2003) ...................................................................................................... 4, 5, 6, 29
Guey Heung Lee v. Johnson,
404 U.S. 1215 (1971) ................................................................................................................ 21
Regents of Univ. of Cal. v. Bakke,
438 U.S. 265 (1978) ...................................................................................................... 4, 5, 6, 29
OTHER AUTHORITIES
ACT, Condition of College & Career Readiness 2017,
http://www.act.org/condition2017 ............................................................................................ 12
Herman Aguinis, et al., Differential Prediction Generalization in College Admissions Testing,
108 J. OF EDUC. PSYCH. 1045 (2016) ........................................................................................ 14
Joan Biskupic, Special Report: Behind U.S. Race Cases, a Little Known Recruiter,
REUTERS, Dec. 4, 2012, http://www.
reuters.com/article/us-usa-court-casemaker-idUSBRE8B30V220121204............................... 28
Gene D. Block, Office of the Chancellor, The Impact of Proposition 209 and our Duty to Our
Students, Feb. 24, 2014, https://chancellor.ucla.edu/messages/the-impact-of-proposition-209and-our-duty-to-our-students/ ..................................................................................................... 8
Br. of Amici Curiae Members of Asian Ams. Advancing Justice, in Supp. of Resp’ts,
Fisher v. Univ. of Tex., No. 14-981, 2015 WL 7770251 (Nov. 2, 2015).................................. 23

ii

PAGE(S)
Bethonie Butler, ‘I, Too, Am Harvard’: Black students show they belong,
WASH. POST, Mar. 5, 2014, https://www.washingtonpost.com/blogs/she-thepeople/wp/2014/03/05/i-too-am-harvard-black-students-show-theybelong/?utm_term=.111eb82225d6 .......................................................................................... 16
Paul L. Choi, Harvard Overseers Election Candidate Questionnaire Responses (Mar. 2017),
https://www.diverseharvard.org/overseer-responses-2017 ....................................................... 20
Kat Chow, As Chinese Exclusion Act Turns 135, Experts Point to Parallels Today, NPR,
May 5, 2017, https://www.npr.org/sections/codeswitch/2017/05/05/527091890/
the-135-year-bridge-between-the-chinese-exclusion-act-and-a-proposed-travel-ban .............. 22
Julie S. Chung and Alexander Z. Zhang, Students for Fair Admissions and Harvard
Both Got It Wrong, HARV. CRIMSON, July 18, 2018,
https://www.thecrimson.com/article/2018/7/18/chung-zhang-sffa-harvard-wrong/ ................ 16
Consultation on the Validity of Testing in Education and Employment Before the
U.S. Comm’n on Civil Rights (June 16, 1989) ............................................................................ 9
Crimson Editorial Bd., Condemning Police Brutality at Harvard, HARV. CRIMSON,
Apr. 20, 2018, https://www.thecrimson.com/article/2018/
4/20/editorial-police-brutality-at-harvard/ ................................................................................ 18
Noah J. Delwiche, Emailed Death Threat Investigation Remains Open, HARV. CRIMSON,
Apr. 6, 2015, https://www.thecrimson.com/
article/2015/4/6/email-threats-investigation-ongoing/.............................................................. 18
Educ. Trust, Overlooked & Underserved: Debunking the Asian “Model Minority” Myth in
California Schools [Policy Brief], Educ. Trust West (Aug. 2010)........................................... 13
Roy O. Freedle, Correcting the SAT’s Ethnic and Social-Class Bias:
A Method for Reestimating SAT Scores, 73 HARV. EDUC. REV. 1 (2003) ................................ 12
Buck Gee and Denise Peck, Asian Americans are the Least Likely Group in the U.S. to be
Promoted to Management, HARV. BUS. REV., May 31, 2018................................................... 21
Luke Charles Harris, Rethinking the Terms of the Affirmative Action Debate Established
in the Regents of the University of California v. Bakke Decision,
6 RES. IN POL. & SOC’Y 133 (1999) .......................................................................................... 13
Hidden Biases Continue to Produce Powerful Headwinds for College-Bound
Blacks Aiming for Higher Scores on the SAT,
41 J. OF BLACKS IN HIGHER EDUC. 90 (2003) ........................................................................... 11

iii

PAGE(S)
Jasmine N. Hyppolite, A Room Full of Mirrors: Harvard Without Affirmative Action,
HARV. CRIMSON, July 9, 2013, https://www.thecrimson.com/article/
2018/7/9/hyppolite-harvard-without-affirmative-action/.......................................................... 19
William C. Kidder & Jay Rosner, How the SAT Creates “Built-In-Headwinds”:
An Educational and Legal Analysis of Disparate Impact,
43 SANTA CLARA L. REV. 131 (2002) ........................................................................ 9, 10-11, 12
Rakesh Kochhar & 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-mostrapidly-among-asians ................................................................................................................ 25
Joyce Kuo, Excluded, Segregated and Forgotten: A Historical View of the Discrimination of
Chinese Americans in Public Schools, 5 ASIAN AM. L.J. 181 (1998) ...................................... 21
Charles R. Lawrence III, Two Views of the River: A Critique of the Liberal Defense of
Affirmative Action, 101 COLUM. L. REV. 928 (2001) ............................................................... 13
Steven Lee, Students Criticize Response to Emailed Death Threat,
HARV. CRIMSON, Oct. 4, 2014, https://www.thecrimson.com/article/
2014/10/8/discussion-criticize-response-threat/ .................................................................. 18-19
Richard O. Lempert et al., Michigan’s Minority Graduates in Practice:
The River Runs Through Law School,
25 L. & SOC. INQUIRY 395 (2000)............................................................................................. 14
Letter from Harvard Black Law Students Ass’n to Harvard Univ. Cmty. & Broader Cambridge &
Boston Cmty., Police Brutality at Harvard, Apr. 13, 2018,
https://orgs.law.harvard.edu/blsa/media-gallery/police-brutality-at-harvard-april-13-2018/ ... 18
Adam Liptak, Travel Ban Case Is Shadowed by One of Supreme Court’s Darkest Moments,
N.Y. TIMES, Apr. 16, 2018, https://www.nytimes.com/2018/04/16/us/politics/travel-banjapanese-internment-trump-supreme-court.html ...................................................................... 22
Goodwin Liu, The Causation Fallacy: Bakke and the Basic Arithmetic of
Selective Admissions, 100 MICH. L. REV. 1045 (2002) ............................................................ 26
James W. Loewen, Here We Go Again: Tests for the Common Core May Be Unfair to
Some and Boring to All, HISTORY NEWS NETWORK, Nov. 18, 2014 ............................... 9-10, 11
Stephanie Mencimer, Here’s the Next Sleeper Challenge to Affirmative Action: The Guy Who
Engineered the Fisher Case in the Supreme Court Isn’t Done Yet,
MOTHER JONES, July 19, 2016, http://www.motherjones.com/politics/2016/07/
abigail-fisher-going-stay-mad ................................................................................................... 28

iv

PAGE(S)
Nat’l Comm’n on Asian Am. & Pacific Islander Research in Educ. & ETS,
iCount: A Data Quality Movement for Asian Ams. and Pacific Islanders in
Higher Educ. (2013) ................................................................................................................. 13
National Public Radio, Robert Wood Johnson Foundation, and Harvard T.H. Chan School of
Public Health, Discrimination in America: Experiences and Views of Asian Americans
(Nov. 2017), https://www.npr.org/assets/news/2017/12/
discriminationpoll-asian-americans.pdf ............................................................................... 21-22
Press Release, New Research Uncovers Hidden Bias in College Admissions Tests, Indiana Univ.
Bloomington Newsroom (Jan. 25, 2016), http://archive.news.indiana.edu/releases/
iu/2016/01/bias-found-in-precollege-tests.shtml) ..................................................................... 14
Prop. 209 Lands On UC, L.A. TIMES, Apr. 1, 1998,
http://articles.latimes.com/1998/apr/01/local/me-34867 ............................................................ 7
Ruben E. Reyes, Jr., I Should Have Gone to Stanford, HARV. CRIMSON, Oct. 16, 2017,
https://www.thecrimson.com/article/2017/10/16/reyes-latinx-longform/ ................................ 16
Sara Rimer & Karen W. Arenson, Top Colleges Take More Blacks, but Which Ones?,
N.Y. TIMES, June 24, 2004, https://www.nytimes.com/2004/06/24/us/top-collegestake-more-blacks-but-which-ones.html .................................................................................... 28
Dennis Romero, Racist, Anti-Asian Flier Rocks UCLA, USC Campuses, LA WEEKLY,
Feb. 11, 2014, http://www.laweekly.com/news/racist-anti-asian-flier-rocks-ucla-usccampuses-4431258.................................................................................................................... 22
Jay Rosner, The SAT: Quantifying the Unfairness Behind the Bubbles, in
SAT WARS: THE CASE FOR TEST-OPTIONAL COLLEGE ADMISSIONS
(Joseph A. Soares 2015) ..................................................................................................... 10, 11
Maria Veronica Santelices & Mark Wilson, Unfair Treatment? The Case of Freedle,
the SAT, and the Standardization Approach to Differential Item Functioning,
80 HARV. EDUC. REV. 106 (2010)............................................................................................. 12
SCOTUSblog on Camera: Edward Blum (Complete), SCOTUSblog,
http://www.scotusblog.com/media/scotusblog-on-camera-edward-blum-complete ........... 28-29
Statement of James W. Loewen, THE VALIDITY OF TESTING IN EDUCATION
AND EMPLOYMENT (Eileen Rudert, ed., 1993) ................................................................ 9, 12, 15
Susan Sturm & Lani Guinier, The Future of Affirmative Action: Reclaiming the
Innovative Ideal, 84 CALIF. L. REV. 953 (1996) ....................................................................... 13
Tumblr, I Too Am Harvard, http://itooamharvard.tumblr.com/ ................................................... 16

v

PAGE(S)
Kimberly West-Faulcon, More Intelligent Design: Testing Measures of Merit,
13 U. PA. J. CONST. L. 1235 (2010-11) ................................................................................. 13
David B. Wilkins & Bryon Fong, Harvard Law School Report on the State of
Black Alumni II: 2000-2016,
HLS Center on the Legal Profession Research Paper No. 2018-2 (August 1, 2017) .......... 14-15
David B. Wilkins & Elizabeth Chambliss, Harvard Law School Report on the State of Black
Alumni: 1896-2000, Harvard Law School Program on the Legal Profession (2002)............... 14
Alia Wong, ‘The Model Minority’ at the Country’s Top-Ranked Universities,
THE ATLANTIC, Sept. 24, 2015, https://www.theatlantic.com/
education/archive/2015/09/university-california-top-rankings-asian-students/407080/ ..... 25-26

vi

INTERESTS OF AMICI CURIAE1
Amici Curiae are student and alumni organizations comprised of current and former
Harvard students, who have an institutional interest in ensuring that Harvard College is an
inclusive place of learning that provides students with the critically important benefits of diversity.
As members of the Harvard student and alumni community, Amici Curiae have direct knowledge
about the vital importance of maintaining considerations of race in Harvard’s admissions process,
and believe that their institutional knowledge, as well as the knowledge and experiences of their
members, will contribute to this Court’s understanding and assessment of the issues at the center
of this important case. A description of each amicus curiae organization can be found in the Motion
to Participate as Amici Curiae and is incorporated herein by reference.
INTRODUCTION
Amici Curiae represent current and former Harvard students from myriad backgrounds,
experiences, and racial and ethnic heritages. Despite their many differences, Amici Curiae stand
unified in support of the continued consideration of race, as one of many factors, in Harvard’s
admissions process. Their unequivocal commitment in support of this consideration is based both
on the significance that their members personally ascribe to their racial or ethnic identity and
because they can attest personally to the devastating consequences that would result to the
educational experience of all Harvard students if they were deprived of the benefits of learning
from fellow students with diverse backgrounds and experiences.
Amici Curiae strongly condemn all forms of racial discrimination and urge the thorough
investigation and redress of any credible allegations of racial discrimination in admissions
1
Local counsel for Amici Curiae in this action, the law firm of Sugarman Rogers Barshak & Cohen, P.C.
(“Sugarman Rogers”), also represents the defendant, President and Fellows of Harvard College (“Harvard”), in matters
wholly unrelated to the legal and factual issues presented by this action. Neither Harvard nor its litigation counsel in
this action have provided any financial support for the preparation of Amici Curiae’s brief or authored this brief in
whole or in part.

1

practices. However, Amici Curiae equally condemn the attempt to manufacture conflict between
racial and ethnic groups in order to revive an unrelenting agenda to dismantle efforts to create a
racially diverse and inclusive student body through college admissions. Race consciousness is not
at odds with racial equality. Indeed, race consciousness is necessary to combat racial inequality
given the history of discrimination and entrenched systemic prejudices—both explicit and
implicit—against Black, Latinx,2 Asian, and Native peoples.
This Court has significant grounds to be skeptical of the claims raised by Plaintiff Students
for Fair Admissions (“SFFA”), which has demonstrated no sincere interest in advancing the rights
of Asian Americans. Rather, this litigation is spearheaded by Edward Blum, a longtime crusader
against civil rights and racial equality. Mr. Blum led the failed challenge against the University of
Texas’s race-conscious admissions policy, which the Supreme Court upheld in 2016 based on its
well-established precedent that colleges and universities may pursue racial diversity as part of their
educational mission. Fisher v. Univ. of Tex., 136 S. Ct. 2198 (2016) (“Fisher II”). Having lost
before the Supreme Court, Mr. Blum—under the guise of Plaintiff in this action—invokes the
discredited and divisive strategy of attempting to pit historically marginalized groups against each
other and demanding, to the detriment of all Harvard students, that the consideration of race be
eliminated from Harvard’s admissions process altogether. SFFA’s attempt to use this new and
divisive twist on old and rejected arguments plainly fails. Harvard’s limited consideration of race,
as part of its holistic admissions policy, is not only constitutional—it is an essential tool in
advancing Harvard’s educational mission.
Amici Curiae, therefore, support summary judgment in favor of Harvard’s race-conscious
admissions policy for two primary reasons:

The gender-neutral term “Latinx” is used herein to refer collectively to Latinos, Latinas, and non-binary
persons of Latin American background.
2

2

First, removing considerations of race from the admissions process would have devastating
consequences on the admission of historically underrepresented and marginalized groups that
could lead to further racial isolation, ignorance, or racial hostility on Harvard’s campus, as well as
significantly diminish the quality of the educational environment for all students. Amici Curiae’s
institutional knowledge of the experiences of racial isolation and, at times, even racial animus
experienced by past and present Harvard students dictates that, rather than roll back Harvard’s
progress on diversity by eliminating considerations of race in admissions, Harvard should intensify
its efforts to promote an inclusive and diverse student climate. Amici Curiae encourage the Court
to carefully review all the declarations submitted in conjunction with this amicus brief, which
contain vital information about the experiences of Harvard students that was impossible to include
in its entirety within the pages of this brief.
Second, SFFA conflates the question of whether Harvard’s race-conscious admissions
process is permissible with the question of whether Asian American applicants are subject to bias
in admissions. These two questions are not, as SFFA would have the court believe, inextricably
linked. Amici Curiae are committed to eradicating racial discrimination at Harvard, whether in the
admissions process or elsewhere. SFFA, however, has not shown—in satisfaction of its burden as
Plaintiff in this action—that any such bias exists as a direct result of Harvard’s efforts to create a
diverse and inclusive student body through a race-conscious admissions process or that any such
discrimination (if it exists) would be remedied by eliminating race-conscious admissions. The clear
incongruity between SFFA’s claim and the relief sought is demonstrated by the fact that
eliminating considerations of race would primarily benefit white, not Asian American, students.
This disconnect illuminates the true purpose of SFFA’s lawsuit as merely the latest strategy in

3

Mr. Blum’s ongoing crusade to undermine Supreme Court precedent and dismantle programs that
promote diversity.
I.

Consideration of Race, as Part of Harvard’s Holistic and Multi-Faceted Admissions
Policy, Is Constitutional Under Long-Established Supreme Court Precedent and
Essential to Foster a Diverse and Inclusive Learning Environment.
It is well-settled Supreme Court precedent that, as part of their educational mission to

promote diversity and inclusion, colleges and universities may consider race as one of many factors
in their admissions practices. As the declarations attached to this brief make abundantly clear,
however, despite efforts to promote diversity, Harvard is still a racially isolating environment for
many students of color. See Exs. 2-17 to Mot. to Participate as Amici Curiae. Harvard has yet to
fully achieve the benefits of having a truly diverse student body and, thus, should continue to make
all lawful efforts to increase campus diversity, including the use of a holistic, multifaceted raceconscious admissions process. This limited consideration of race is especially important given that
test scores are not an accurate measure of merit due to the racial bias that pervades standardized
testing instruments. SFFA’s proposal to eliminate any consideration of race from the admissions
process would set back Harvard’s efforts to achieve the benefits of diversity and inflict additional
damage on the students of color who attend Harvard.
A.

Harvard’s Race-Conscious Admissions Policy Is Permissible Under WellSettled Supreme Court Precedent and Necessary to Promote Racial and
Ethnic Diversity.

The Supreme Court has for decades recognized that universities may consider race “to
achieve that diversity which has the potential to enrich everyone’s education.” Grutter v. Bollinger,
539 U.S. 306 (2003); see also Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 311-13 (1978)
(Powell, J.) (reasoning that universities have a unique academic freedom to create a diverse student
body, including racial diversity). As recently as 2016, the Supreme Court reaffirmed the core

4

principle that a diverse student body yields numerous educational benefits for all students. Fisher
II, 136 S. Ct. at 2208. The Court assumed “as given” its prior precedent on this point in Fisher v.
Univ. of Tex., 570 U.S. 297, 307 (2013) (“Fisher I”) (citing Grutter, 539 U.S. 306; Gratz v.
Bollinger, 539 U.S. 244 (2003); and Bakke, 438 U.S. 265).
Harvard students from underrepresented backgrounds, who experience life on campus as
outsiders every day, do not feel that Harvard has yet achieved the benefits that come from enrolling
a truly diverse class. Particularly in moments of acute stress or controversy, students of color rely
on each other and their affinity groups for support where the Harvard administration has fallen
short. Moreover, there are continuing concerns as to whether student communities of color will be
sufficiently large enough to wield some power and influence, such as hosting the Black
Convocation to welcome new Black students to Harvard, Decl. of Aba Sam (“Sam Decl.”) ¶ 5,
preventing the closure of the Harvard University Native American Program, Decl. of Emily Van
Dyke (“Van Dyke Decl.”) ¶ 15, lobbying the administration for a comprehensive Ethnic Studies
program and a multicultural center, Decl. of Margaret Chin (“Chin Decl.”) ¶ 23, or becoming part
of an active network of alumni of color, Decl. of Rashid Yasin (“Yasin Decl.”) ¶ 3; Decl. of Daniel
Lobo (“Lobo Decl.”) ¶ 9; Decl. of Debra Sanchez Reed ¶¶ 7-8. It is also important for students of
all backgrounds to interact with members of other races in significant enough numbers to dispel
the myth that any racial group is a monolith. To eliminate race-conscious policies would have a
deleterious effect on the student experience by reducing the number of students of color,
dismantling their support systems, deepening their isolation, and preventing a richer educational
experience for all students.
The consideration of race in Harvard’s holistic admissions policy is sufficiently “narrowly
tailored” to attain its educational goal of racial and ethnic diversity. “‘To be narrowly tailored, a

5

race-conscious admissions program cannot use a quota system’ but instead must ‘remain flexible
enough to ensure that each applicant is evaluated as an individual and not in a way that makes an
applicant’s race or ethnicity the defining feature of his or her application.’” Fisher, 570 U.S. at
309 (quoting Grutter, 539 U.S. at 334, 337). It must “consider all pertinent elements of diversity
in light of the particular qualifications of each applicant,’” and implement “truly individualized
consideration” that may use race in a “flexible, nonmechanical way.” Grutter, 539 U.S. at 333
(quoting Bakke, 438 U.S. at 317). Harvard’s admissions process does just that by considering
applicants as a whole person, comparing their qualifications with those of all other applicants, and
assessing them in the context of the opportunities and challenges they have faced. See Report of
David Card, Ph.D, Ex. 33 to Decl. of Felicia H. Ellsworth in Supp. of Harvard’s Mot. for Summ.
J. (“Card Rep.”) at 16, 19. Race is but one consideration among multiple variables that form part
of this evaluation, including standardized test scores, an alumni interviewer evaluation, letters of
recommendation, applicant essays, the academic strength of applicants’ high schools, the
economic and demographic profile of applicants’ communities, parents’ level of education,
extracurricular activities, and optional submissions of scholarly work, artwork, or recordings of
music or dance performances. See Harvard Stmt. of Material Facts (“Harvard’s SMF”) ¶¶ 15, 22.
These myriad race-neutral factors play the dominant role in a student’s admission. Indeed,
race has less of an effect on applicants’ chances of admission than many other variables, such as
teacher and guidance counselor recommendations, alumni interviews, the character of their high
schools or neighborhoods, or their intended career or major. See Card Rep. at 82-83. Further,
applicants for whom race appears to have had a larger positive effect on their likelihood of
admission had the strongest applications—among the top ten percent of the applicant pool based
on race-neutral factors. Id. at 84. Such highly qualified candidates are impressive across many

6

metrics, and it is impossible to conclude that race was the determinative factor in their admission.
Id.
Yet, if Harvard eliminated the consideration of race, even while maintaining its existing
race-neutral efforts to achieve diversity, the population of Black, Latinx, or “Other” 3 race students
would dramatically decrease by nearly 50%. See Card Rep. at 103, 107-08 (demonstrating that
relative to the Class of 2019, African American students would decrease from 14% to 6% and
Hispanic or Other students would decrease from 14% to 9%). This outcome is neither unexpected
or theoretical. Some of this can be explained by an overreliance on standardized test scores, which
are infected by racial bias, as explained infra Section I.B. Schools that implement admissions
policies that give too much weight to test scores and grades run the risk of systematically
undervaluing the strengths and potential of many underrepresented applicants of color.
The sharp decline in Black and Latinx student populations has become a reality at highly
selective universities that have implemented colorblind admissions, such as the University of
California at Berkeley, the University of California at Los Angeles, and the University of
Michigan. Id. at 99. After Proposition 209 banned consideration of race in the University of
California system in 1996, admission of Black and Latinx students at California schools dropped
precipitously, especially at the most selective schools. Prop. 209 Lands On UC, L.A. TIMES,
Apr. 1, 1998 (reporting that the number of Black and Latinx students admitted to UC Berkeley, as
a part of the first freshman class since Proposition 209 went into effect, dropped by 66% and 53%,
respectively,

from

the

number

of

such

students

admitted

the

previous

year),

http://articles.latimes.com/1998/apr/01/local/me-34867. Almost two decades later, those student
communities have not recovered. UCLA’s Chancellor lamented that the school “continues to fall

Due to their small numbers, Harvard’s expert included students identifying as Native American and
Hawaiian/Pacific Islander into the “Hispanic” racial category. Card Rep. at 55.
3

7

far short of the diversity California’s public colleges and universities enjoyed before” Proposition
209, leaving “many of our students of color [to] feel isolated, as strangers in their own house . . .
[and] [o]thers [to] feel targeted, mocked or marginalized, rather than recognized and valued.” Gene
D. Block, Office of the Chancellor, The Impact of Proposition 209 and our Duty to Our Students,
Feb. 24, 2014, https://chancellor.ucla.edu/messages/the-impact-of-proposition-209-and-our-dutyto-our-students/.
Harvard students of color know firsthand that their school still struggles with “issues of
diversity and inclusion,” including “ongoing feelings of isolation and alienation among racial
minorities.” Harvard’s SMF ¶ 163. The significant decline in Black, Latinx, and possibly students
from Asian subgroups4 and Native students, that would result from an end to race-conscious
admissions, would only exacerbate these issues. And all Harvard students would be deprived of
the educational benefits of learning in a diverse environment that is crucial to succeeding in a
multiracial workplace and society.
B.

Race Consciousness in Admissions Is Essential to Achieve the Benefits of
Diversity Due to Discrimination in Standardized Testing.

Harvard’s ability to consider race, as one of many factors, in admissions is indispensable
to its ability to achieve the benefits of diversity. This is especially true because the test scores—
on which Harvard and other colleges and universities so heavily rely—are tainted by racial bias.
Thus, short of eliminating standardized test scores altogether, it is crucial for Harvard to consider
race, as one of many factors, as it works to identify talented and qualified students of color who
may otherwise be undervalued based on test scores that do not accurately measure their capacity
for success at Harvard and beyond.

4

The Asian race category in Harvard’s data is not disaggregated by specific ethnic groups.

8

SFFA’s erroneous assumption that test scores are a valid and reliable5 indicator of merit,
despite evidence that tests like the SAT and ACT underpredict the potential of many talented and
qualified students of color, is a fatal flaw in its challenge to Harvard’s policy.6 See, e.g., Pl.’s Br.
in Supp. of Summ. J. (“Pl.’s Br.”) at 7 (quoting one of its experts referring to test scores as an
objective measure of merit). Indeed, four Sixth Circuit judges recognized that standardized test
scores are not objective measures of merit, stating “the record indicates that LSAT scores are
neither race-neutral or gender-neutral criteria for admissions decisions.” Grutter v. Bollinger, 288
F.3d 732, 771 (6th Cir. 2002) (Clay, J., concurring), aff’d, 539 U.S. 306.
Racial bias is built into the very fabric of standardized tests. Before an experimental test
question is approved for use on a standardized test like the SAT, test manufacturers test the
question for reliability. William C. Kidder & Jay Rosner, How the SAT Creates “Built-InHeadwinds”: An Educational and Legal Analysis of Disparate Impact, 43 SANTA CLARA L. REV.
131, 146, 156 (2002). A test is reliable when its findings can be replicated: the results should be
the same for an examinee taking the test multiple times under the same conditions. See id. at 156.
Thus, a new question must generally produce the same findings as pre-existing questions. See id.
Test manufacturers deem a question reliable when “high ability” examinees are more likely than
“low ability” examinees to answer correctly. Id. at 157. But test manufacturers fail to use any
independent measure of “ability.” James W. Loewen, Here We Go Again: Tests for the Common
Core May Be Unfair to Some and Boring to All, HISTORY NEWS NETWORK, Nov. 18, 2014,

“‘Valid’ means that tests test what they claim to measure (i.e., content validity) and correlate strongly with
performance in college (predictive validity).” Consultation on the Validity of Testing in Education and Employment
Before the U.S. Comm’n on Civil Rights (June 16, 1989) (statement of James W. Loewen, Harvard-trained sociologist
and author) in THE VALIDITY OF TESTING IN EDUCATION AND EMPLOYMENT, 42 (Eileen Rudert, ed., 1993). A measure
is reliable if it produces consistent results (i.e., if multiple tests are given under the same conditions, the result should
be the same).
6
“One-third of the gender gap on the math exam, all of the gender gap on the verbal exam, and perhaps 40
percent of the black/white gap on the verbal exam, is due to test bias.” Loewen statement to the U.S. Comm’n on Civil
Rights, supra note 5, at 42.
5

9

https://historynewsnetwork.org/blog/153543. Instead, test manufacturers define “high ability” as
an examinee who performed well on the overall test and will discard as “unreliable” questions on
which high scorers do not outperform low scorers. Id.; Kidder, supra, at 157. If the test itself is
biased and unfairly depresses the scores of some examinees, test makers’ reliability check will
reproduce that bias.
“Like most other ‘standardized’ tests given widely in the U.S., researchers originally
validated the SAT on affluent white students.” Loewen, supra. As a consequence, “[a]ffluent white
students have always done better on [the SAT] than have African Americans, Hispanics, Native
Americans, Filipino Americans, or working-class whites.” Id. And because the “ability” of an
examinee is measured by the yardstick of affluent white individuals’ performance, experimental
test questions are systematically discarded as “biased” when more Black or Latinx students answer
correctly than white students, resulting in a scored test comprised entirely (or almost entirely) of
questions that favor white students, sometimes by large margins. Id.; Kidder, supra, at 133-72.
[I]f high-scoring test-takers—who are more likely to be white (and male, and
wealthy)—tend to answer the question correctly in pretesting, it’s a worthy SAT
question; if not, it’s thrown out. Race and ethnicity are not considered explicitly,
but racially disparate scores drive question selection, which in turn reproduces
racially disparate test results in an internally reinforcing cycle.
Jay Rosner, The SAT: Quantifying the Unfairness Behind the Bubbles, in SAT WARS: THE CASE
FOR TEST-OPTIONAL COLLEGE ADMISSIONS 134 (Joseph A. Soares 2015) (internal citation
omitted). This process is “used by psychometricians to construct admissions tests such as the SAT,
ACT, GRE, LSAT, GMAT, MCAT, and many other bubble tests.” Id.
An example of the bias produced by this process is an October 1998 administration of the
SAT, on which white students outperformed Black and Chicano students on every single scored
question. Kidder, supra, at 148. More than half of the questions had performance gaps so wide that
the percentage of white students who answered correctly was at least 15 percentage points higher
10

than the percentage of Black students who answered correctly.7 Id. at 148-50. If equally valid
questions—but with a less racially disparate impact—were used, the Black-white score gap could
be closed by 40%, while the Chicano-white score gap could be reduced by 25%. Id. at 172; Hidden
Biases Continue to Produce Powerful Headwinds for College-Bound Blacks Aiming for Higher
Scores on the SAT, 41 J. OF BLACKS IN HIGHER EDUC. 90, 92 (2003). Instead, “the process currently
used to construct the SAT, LSAT, GRE, and similar tests unintentionally operates to select
questions with larger racial and ethnic disparities (favoring Whites).” Kidder, supra, at 210.
Research has found that “99% of SAT math questions chosen to appear on scored sections ha[d]
to be answered correctly [in pre-testing] by . . . a higher percentage of whites than Mexican
Americans[] and a higher percentage of whites than blacks, simultaneously.” Rosner, supra, at
135. The process has “the ultimate effect of contributing to—even guaranteeing—the lower
performance of African Americans and Chicanos on the SAT.”8 Kidder, supra, at 156.
In 2003, Roy Freedle, who served for 31 years as a cognitive psychologist for Educational
Testing Services (“ETS”), the creator of the SAT, revealed that Black and Latinx students
consistently outperformed white students on hard questions, while white students outperformed
Black and Latinx students on easy questions, perhaps because the hard questions used vocabulary
taught at school, while the easier questions used words learned at home that had varying colloquial
meanings (with the test rewarding answers that matched the meaning most frequently used in

7

Another purported quality control measure—differential item functioning (“DIF”)—adds to the bias. Due
to DIF, “whites may outscore blacks on items, but the items will still get dropped because whites don’t outscore blacks
by a great enough margin.” Loewen, supra; see also id. (“Thus if 7% fewer African Americans typically get an item
correct, compared to whites, and if 6% is the cutoff point that triggers DIF, then items on which blacks do ‘only’ 1%
worse than whites will get flagged for scrutiny.”).
8
See also Kidder, supra, at 209 (noting that changes expected to be made to the SAT in 2005 would not solve
this problem).

11

white, middle class homes like those of the test creators).9 See generally Roy O. Freedle,
Correcting the SAT’s Ethnic and Social-Class Bias: A Method for Reestimating SAT Scores, 73
HARV. EDUC. REV. 1 (2003); see also id. at 28 (noting that there is “evidence for this bias pattern
across a wide span of tests” and mentioning evidence of cultural bias on Advanced Placement
exams, the GRE, and high school vocabulary exams). Because correct answers on easy
questions—those infected with cultural bias—yielded the same amount of credit as correct answers
to hard questions, test scores for Black students were artificially depressed by as much as 200 or
300 points. Id. at 12-13. Students of color “lose enough points on the easy items so that it is very
difficult, in fact impossible, for them to regain sufficient ground when responding to the hard items
to show their true ability.” Id. at 20. A 2010 study replicated Freedle’s findings, showing that the
SAT “favors one ethnic group over another.” Maria Veronica Santelices & Mark Wilson, Unfair
Treatment? The Case of Freedle, the SAT, and the Standardization Approach to Differential Item
Functioning, 80 HARV. EDUC. REV. 106, 126 (2010) (noting that the study’s findings called into
“question the validity of SAT verbal scores for African American examinees”).
Test bias likely also artificially depresses the scores of other people of color, such as Native
Americans and members of Asian American/Pacific Islander subgroups.10 For example, according
to the ACT’s benchmarks of college readiness, 50% of white examinees who tested between 2013
and 2017 met three of four benchmarks of college readiness, while only 16% of American Indian
and 23% of Pacific Islander examinees did the same. See ACT, Condition of College & Career
Readiness 2017, http://www.act.org/condition2017. Similarly, in 2010, 48% of California’s high

9
Although “ETS researchers have proven that some groups use a word in one way while other groups use it
in another,” by 1989, “ETS ha[d] never dropped or included a single item as a result of this research” and “d[id] not
use review panels to see if items might be unfairly unfamiliar to certain groups.” Loewen Stmt. to the U.S. Comm’n
on Civil Rights, supra note 5, at 43.
10
Although Kidder and Rosner’s study focused on Black and Latinx examinees, the authors suggested that,
like Freedle’s work, their finding also apply to other people of color. Kidder, supra, at 168-70.

12

school students who took the SAT scored 1500 or above (out of 2400), and they passed 58% of
the AP exams they took. In contrast, in a California high school that was 44% Hmong, only 8% of
students who took the SAT scored 1500 or above, and students there passed only 16% of the AP
exams they took. At another California high school that was 40% Filipino, the comparable
percentages were 13% and 22%, respectively. Nat’l Comm’n on Asian Am. & Pacific Islander
Research in Educ. & ETS, iCount: A Data Quality Movement for Asian Ams. and Pacific Islanders
in Higher Educ., at 18-19, Table 4 (2013); see also Educ. Trust, Overlooked & Underserved:
Debunking the Asian “Model Minority” Myth in California Schools [Policy Brief], Educ. Trust
West

(Aug.

2010)

(documenting

test

score

gaps

affecting

Laotian,

Cambodian,

Guamanian/Chamorro, Samoan, and Filipino students).
In addition to the inherent racial biases in the tests themselves, standardized test scores are
not valid measures of how well a student will perform in college.11 “[N]either cumulative grade
point averages nor national aptitude test scores have ever been shown to be anything more than
rather crude instruments for predicting first year grade point averages in given academic settings;
and after the first year their predictive value decreases sharply.” Luke Charles Harris, Rethinking
the Terms of the Affirmative Action Debate Established in the Regents of the University of
California v. Bakke Decision, 6 RES. IN POL. & SOC’Y 133, 145 (1999). A 2016 analysis of data
involving 475,000 examinees at 176 colleges across the country found that, at 62% of the colleges

11

See also Kimberly West-Faulcon, More Intelligent Design: Testing Measures of Merit, 13 U. PA. J. CONST.
L. 1235 (2010-11) (discussing the ramifications of social science research showing that standardized tests have racially
skewed scores and do not accurately predict college performance); Charles R. Lawrence III, Two Views of the River:
A Critique of the Liberal Defense of Affirmative Action, 101 COLUM. L. REV. 928, 945 (2001) (“An extensive body of
research challenges the usefulness of standardized tests in predicting the performance of poor and minority students,
and finds that the SAT does a better job predicting the socioeconomic status of the test taker's parents than predicting
college performance.”); Susan Sturm & Lani Guinier, The Future of Affirmative Action: Reclaiming the Innovative
Ideal, 84 CALIF. L. REV. 953, 957, 968-80 (1996) (arguing that SAT and other standardized tests are racially biased
and explaining that standardized test scores have limited predictive power with respect to students’ future
performance).

13

studied, there was a statistically significant difference in how well high school GPA and SAT
scores predicted the first-year college grades of Black students as compared to how accurately high
school GPA and SAT scores predicted the first-year college grades of their white classmates.
Herman Aguinis, et al., Differential Prediction Generalization in College Admissions Testing, 108
J.

OF

EDUC. PSYCH. 1045, 1053 (2016). Similarly, at 41% of the colleges studied, there were

statistically significant differences in how well high school GPA and SAT scores predicted the
first-year college grades of Latinx students as compared to how well high school GPA and SAT
scores predicted the first-year college grades of their white classmates. Id. While this study
concerned the SAT, the study’s author noted that the findings are applicable to other standardized
tests as well. Press Release, New Research Uncovers Hidden Bias in College Admissions Tests,
Indiana Univ. Bloomington Newsroom (Jan. 25, 2016), http://archive.news.indiana.edu/releases/
iu/2016/01/bias-found-in-precollege-tests.shtml.
Test scores also do not accurately predict success after college. For example, a study of
Black, Latinx, and Native American graduates from the University of Michigan’s classes of 197096 found that, despite having lower standardized test scores, they were as successful as their white
classmates in their professional life in terms of income, career satisfaction, and civic contributions.
Richard O. Lempert et al., Michigan’s Minority Graduates in Practice: The River Runs Through
Law School, 25 L. & SOC. INQUIRY 395, 468-79, 485-90 (2000); see also David B. Wilkins &
Elizabeth Chambliss, Harvard Law School Report on the State of Black Alumni: 1896-2000,
Harvard Law School Program on the Legal Profession (2002); David B. Wilkins & Bryon Fong,
Harvard Law School Report on the State of Black Alumni II: 2000-2016, HLS Center on the Legal
Profession Research Paper No. 2018-2 (August 1, 2017) (noting that “the most comprehensive
examination of the careers of the black graduates of any school ever assembled” shows that the

14

majority of Black Harvard Law School alumni surveyed have enjoyed considerable success even
though, nationally, Black LSAT examinees have, on average, lower scores than white examinees).
The impact of racial bias in standardized testing on the ability of colleges and universities
to assemble a class of racially diverse students is profound. Artificially depressed test scores hinder
students’ ability to procure offers of admission, scholarships, and other educational opportunities.
Because standardized test scores have the patina of legitimacy, students of color themselves often
do not realize that the tests are infected by racial bias, thus damaging their self-confidence if they
receive a low score. As one professor noted, “[t]eaching experience has shown me that based upon
their SAT and GRE scores, blacks think they have no chance at graduate school.” Loewen Stmt.
to U.S. Comm’n On Civil Rights, supra, at 41 n.2. “Conversely, advantaged whites showing only
a modest ability to read, write, and think, test well, and win admission to prestigious schools and
fine jobs.” Id. “Unless counter-balanced by robust affirmative action programs, standardized tests
block the dreams of many [people of color] . . . for equal access to education and employment.”
Id.
C.

The Need for Diversity and Inclusion Continues to Be a Pressing Issue at
Harvard.

There is no question that Harvard needs student diversity to improve its school climate.
Indeed, Harvard acknowledges that there is much work to do for its campus to become truly
inclusive. Harvard’s Br. in Supp. of Summ. J. at 28. Many Harvard students who come from
historically underrepresented and/or disadvantaged communities continue to feel unwelcome in
social and academic spaces on campus. The declarations provided by Amici Curiae, representing
students and alumni from an array of backgrounds, include incredibly personal stories that paint a
consistent picture of racial isolation for their members.

15

For example, many students in STEM classes have assumed that their Black classmates are
not good at math and science and, thus, declined to collaborate with them. Sam Decl. ¶¶ 7-8. And
Latinx students have, in a number of instances, been mistaken by students and staff as “laborers”
as part of an overall assumption that they do not fit the mold of a Harvard student. See Ruben E.
Reyes, Jr., I Should Have Gone to Stanford, HARV. CRIMSON, Oct. 16, 2017,
https://www.thecrimson.com/article/2017/10/16/reyes-latinx-longform/. In some cases, the social
isolation that students experience inhibits them from reaching their full academic potential. See
Van Dyke Decl. ¶¶ 10-12 (discussing a gifted Harvard classmate from the Ojibwe Tribe, who
began to struggle academically due to feelings of isolation and was tragically killed after returning
to his reservation while on academic probation). Issues of diversity and inclusion are no less urgent
for Asian, Asian American, and Pacific Islander students, who are too often treated as a monolithic
entity, or stereotyped as model minorities with high test scores, but lacking the social skills
necessary to take on leadership roles. See Decl. of Melissa Tran (“Tran Decl.”) ¶ 5; Decl. of
Jonathan Paek ¶ 10; Julie S. Chung and Alexander Z. Zhang, Students for Fair Admissions and
Harvard

Both

Got

It

Wrong,

HARV.

CRIMSON,

July

18,

2018,

https://www.thecrimson.com/article/2018/7/18/chung-zhang-sffa-harvard-wrong/.
The testimonies provided in the accompanying declarations demonstrate that ensuring race
consciousness in admissions is essential because the “Harvard administration has not done enough
to foster inclusion,” and the task often falls to students of color to support each other.12 Decl. of

12

For example, in 2014 when she was a sophomore at Harvard, Kimiko Matsuda-Lawrence, who is Black
and Japanese, wrote and directed a play based on interviews with more than 40 Harvard students of color who
expressed feelings of alienation because of false assumptions that they do not belong at Harvard. See Bethonie Butler,
‘I, Too, Am Harvard’: Black students show they belong, WASH. POST, Mar. 5, 2014, https://www.
washingtonpost.com/blogs/she-the-people/wp/2014/03/05/i-too-am-harvard-black-students-show-they-belong/
?utm_term=.111eb82225d6. Matsuda-Lawrence’s idea stemmed from discussion among members of Amicus Curiae
Kuumba Singers of Harvard College, and the play was presented as part of Kuumba’s annual Black Arts festival. Id.
The interviews developed into a highly publicized campaign in which students of color asserted their right to be
respected as members of the Harvard community. Tumblr, I Too Am Harvard, http://itooamharvard.tumblr.com/.

16

Catherine Ho (“Ho Decl.”) ¶ 4; see also Decl. of Cecilia Nuñez (“Nuñez Decl.”) ¶ 15; Lobo Decl.
¶ 6. Amici Curiae have often been compelled to compensate for the lack of sufficient support and
inclusion for students of color at Harvard by providing their members with resources to navigate
campus life and opportunities to build connections with others who share similar experiences. As
a Board member from Fuerza Latina explained, members of Amici Curiae “come together to fight
discrimination and hostility,” but without a diverse campus “we wouldn’t necessarily be able to
advocate for ourselves” or “offer that same support.” Nuñez Decl. ¶¶ 11-12. Among other things,
Amici Curiae provide mentoring and networking opportunities for students who are the first in
their family to attend college, Lobo Decl. ¶¶ 5, 9, community-building for students who experience
racial isolation, Sam Decl. ¶¶ 5, 13-14, and increased cultural awareness for all students on
campus, Ho Decl. ¶ 5. Due to insufficient equity and inclusion on campus, Amici Curiae have also
engaged in advocacy to force Harvard to take action, such as a campaign led by TAPAS, Diverse
Harvard, and other groups to secure a comprehensive Ethnic Studies program, which has not been
established by Harvard despite decades of student advocacy, Chin Decl. ¶ 23, and another decadeslong struggle involving numerous affinity groups representing people of color to have a
multicultural center on campus, Sam Decl. ¶ 20 (describing how the lack of a designated space
sends the message that the University does not value cultural diversity).
Repeated incidents of hostility on campus, including racial slurs and other forms of
aggression, are additional evidence that Harvard has not achieved an inclusive climate. See Nuñez
Decl. ¶ 10 (describing how she and other Latinx students depended on each other when they were
called “wetbacks” while walking on campus together); Sam Decl. ¶ 12 (describing an incident
when a member of BSA was harassed by a group of drunk people chanting racial slurs and confided
in fellow BSA members); Tran Decl. ¶ 6 (describing perceptions of people from Southeast Asian

17

countries as “poorer, less intelligent, and even more barbaric than people from other Asian
countries”). During the 2017-18 school year, the Cambridge Police Department (“CPD”) violently
attacked a Black Harvard College student. See Crimson Editorial Bd., Condemning Police
Brutality at Harvard, HARV. CRIMSON, Apr. 20, 2018, https://www.thecrimson.com/article/2018/
4/20/editorial-police-brutality-at-harvard/. BSA, whose members believe the student was treated
more harshly due to his race, joined other student groups in releasing a statement that criticized
the CPD for unnecessarily resorting to violence instead of providing the student with appropriate
support. See Letter from Harvard Black Law Students Ass’n to Harvard Univ. Cmty. & Broader
Cambridge

&

Boston

Cmty.,

Police

Brutality

at

Harvard,

Apr.

13,

https://orgs.law.harvard.edu/blsa/media-gallery/police-brutality-at-harvard-april-13-2018/;

2018,
Sam

Decl. ¶¶ 13-18. During the same school year, a campus organization distributed fake deportation
notices in students’ dorms for the well-intentioned purpose of raising awareness about unfair
immigration policies without realizing the possibility that some students may actually be
undocumented. See Nuñez Decl. ¶ 9.
Meanwhile, in October 2014, about 400 members of the Harvard community, most of
them Asian American women students, received an email addressed to “slit-eyes,” with the writer
threatening to come to the Harvard campus the following day to “shoot all of you” and “kill you
individually.” Chin Decl. ¶ 35. The source of the death threats continued to contact Asian women
students at Harvard throughout October, and in December 2014 a separate threatening email was
sent to 80 Asian women students at Harvard. Noah J. Delwiche, Emailed Death Threat
Investigation Remains Open, HARV. CRIMSON, Apr. 6, 2015, https://www.thecrimson.com/
article/2015/4/6/email-threats-investigation-ongoing/; Steven Lee, Students Criticize Response to

18

Emailed Death Threat, HARV. CRIMSON, Oct. 4, 2014, https://www.thecrimson.com/article/
2014/10/8/discussion-criticize-response-threat/.
In addition, Amici Curiae have had to act in response to hostility toward students of color
fanned by this lawsuit and other attacks on race-conscious admissions. See Jasmine N. Hyppolite,
A Room Full of Mirrors: Harvard Without Affirmative Action, HARV. CRIMSON, July 9, 2013
(discussing the “emotional toll” of the case on students), https://www.thecrimson.com/article/
2018/7/9/hyppolite-harvard-without-affirmative-action/. In 2016, Harvard alumni formed Diverse
Harvard to campaign against a slate of candidates running for the Harvard Board of Overseers,
four of whom had written or testified extensively against affirmative action in lockstep with the
arguments that SFFA makes in this case. See Chin Decl. ¶ 44 (“It was clear that they were using
Asian Americans as a cover to attack the whole-person admissions process and establish a
complete bar against any consideration of race, so I joined with other alumni to form the Coalition
for a Diverse Harvard.”). Amici Curiae often work in coalition with each other and are concerned
that this case could undermine their ability to collaborate with each other and receive the benefits
of a diversity student body. See Decl. of Jasmine Parmley ¶ 5 (“[Edward Blum and SFFA’s]
actions and words do not reflect how we feel, nor our lived experiences. . . . We are uncomfortable
with the way that Blum and SFFA could pit Asian Americans against Harvard and against other
people of color . . . .”); Ho Decl. ¶ 9, 12-13 (describing how AAWA would lose the richness of its
programming without being able to collaborate with other women of color to explore their
multifaceted identities).
Embedding diversity and inclusion into the academic and social environment at Harvard
requires a selection process that recognizes the value of racial diversity, as part of a larger need to
address the challenges—and, at times, hostility—that students of color experience after their

19

admission to Harvard. As Paul L. Choi, who serves on Harvard’s Board of Overseers, explains,
“having a diverse environment [is] an integral part of the learning experience for students and an
indispensable building block for making students feel welcome at Harvard.” Paul L. Choi, Harvard
Overseers

Election

Candidate

Questionnaire

Responses

(Mar.

2017),

https://www.diverseharvard.org/overseer-responses-2017. Race-, class-, and gender-conscious
admissions permit consideration of how bias affects selection criteria and enables Harvard to admit
a diverse and qualified group of students. Given these circumstances, eliminating any
consideration of race from the admissions process would only cause additional damage.
II.

A Race-Conscious Admissions Policy That Fosters Diversity of Underrepresented
Students Does Not Conflict with the Interests of Asian Americans.
Like many racial, ethnic, and religious minorities, Asian Americans have historically faced

discrimination and marginalization in this country, but they have also shared in its civil rights
successes. Rather than driving discrimination against Asian Americans, race-conscious remedies
have helped forge their path to equality. Indeed, SFFA fundamentally misconstrues the purpose of
considering race, as one of many factors in admissions: to achieve the benefits of a racially and
ethnically diverse student body, which may not otherwise be possible due to substantial barriers to
educational opportunities for certain talented students of color. Race consciousness in admissions,
therefore, is meant to further racial equality, and any intentional discrimination against a particular
racial group would be antithetical to that purpose. That is why SFFA’s extreme remedy—to end
all consideration of race—is misplaced even if their allegations of discrimination against Asian
Americans were true. This inherent disconnect between SFFA’s claims and the requested remedy
reveals the true reasons for this lawsuit. SFFA is not trying to vindicate the rights of Asian
Americans—who, like all Harvard students, would be harmed from the lack of diversity resulting
from the elimination of race consciousness—but rather to advance the hidden agenda of Edward
20

Blum in his quest to prevent all colleges and universities from achieving racially diverse and
inclusive educational environments.
A.

Asian Americans Benefit from Race-Conscious Remedies.

Asian Americans have a long and tragic history of racial discrimination in the United
States. The first immigration law banning entry of an entire ethnic group to the United States
targeted Chinese immigrants and was later extended to Japanese immigrants. See Joyce Kuo,
Excluded, Segregated and Forgotten: A Historical View of the Discrimination of Chinese
Americans in Public Schools, 5 ASIAN AM. L.J. 181, 187 (1998) (discussing the Chinese Exclusion
Act of 1882). Other laws at the time prohibited Chinese immigrants from land ownership, voting,
access to the courts, employment, interracial marriages, and naturalized citizenship. Id. at 188.
Until the Supreme Court struck down the doctrine of “separate, but equal,” Asian Americans were
frequently forced to attend segregated public schools. See Guey Heung Lee v. Johnson, 404 U.S.
1215, 1215 (1971) (“Historically, California statutorily provided for the establishment of separate
schools for children of Chinese ancestry.”). “Brown v. Board of Education was not written for
Blacks alone” but also to remedy this “classic case of de jure segregation . . .” Id. at 1215-16.
Vestiges of this history remain. Today, Asian Americans continue to face racial bias, and
are often falsely stereotyped as timid, exotic, perpetual foreigners, or model minorities. These
views translate into barriers in the workplace, where Asian Americans are the group least likely to
be promoted to management even in industries where they are employed in high numbers, such as
the tech industry. See Buck Gee and Denise Peck, Asian Americans are the Least Likely Group in
the U.S. to be Promoted to Management, HARV. BUS. REV., May 31, 2018. In a 2017 survey, onequarter of Asian Americans reported personally experiencing racial discrimination in applying for
jobs, receiving equal pay or securing promotions, and renting or buying housing. National Public

21

Radio, Robert Wood Johnson Foundation, and Harvard T.H. Chan School of Public Health,
Discrimination in America: Experiences and Views of Asian Americans (Nov. 2017) at 6,
https://www.npr.org/assets/news/2017/12/discriminationpoll-asian-americans.pdf.

This

same

survey found that one-third of Asian Americans have encountered a racial slur or offensive
comment about their race or ethnicity. Id. at 8-9.
Additionally, some colleges have struggled with incidents of racist threats against Asian
American students. See Dennis Romero, Racist, Anti-Asian Flier Rocks UCLA, USC Campuses,
LA WEEKLY, Feb. 11, 2014 (describing obscene and threatening fliers sent to Asian American
student groups at UCLA and USC in 2012 and 2014), http://www.laweekly.com/news/racist-antiasian-flier-rocks-ucla-usc-campuses-4431258; see also supra Section I.C (discussing racist threats
against Asian American female students at Harvard). Recently, in the political realm, national
leaders have evoked elements of the Chinese Exclusion Act and Japanese internment to support
unjust immigration policies, recalling the historic hostility against Asian Americans during times
of war. See Adam Liptak, Travel Ban Case Is Shadowed by One of Supreme Court’s Darkest
Moments, N.Y. TIMES, Apr. 16, 2018 (describing then-candidate Donald Trump speaking
admiringly of President Roosevelt’s approach to immigrants in the United States, which included
authorizing Japanese internment camps), https://www.nytimes.com/2018/04/16/us/politics/travelban-japanese-internment-trump-supreme-court.html; Kat Chow, As Chinese Exclusion Act Turns
135,

Experts

Point

to

Parallels

Today,

NPR,

May

5,

2017,

https://www.npr.org/sections/codeswitch/2017/05/05/527091890/the-135-year-bridge-betweenthe-chinese-exclusion-act-and-a-proposed-travel-ban.

Amicus

Curiae

recognize

the

commonalities of historical and present-day experiences of exclusion and prejudice shared by

22

multiple communities of color—although no group’s experience is the same—and maintain a
commitment to building solidarity with, and learning from, each other.
Just as Asian Americans shared in the benefits of Brown, so too have they benefitted from
other civil rights advances, including race-conscious remedies. Affirmative action programs
opened the doors of higher education to many Asian Americans in the 1960s and 1970s to increase
their numbers in higher education. See Br. of Amici Curiae Members of Asian Ams. Advancing
Justice, in Supp. of Resp’ts, Fisher v. Univ. of Tex., No. 14-981, 2015 WL 7770251, at 8-10 (Nov.
2, 2015) (“AAJC Fisher Amicus Br.”). In responses to the activism of students, Harvard began
recognizing Asian Americans as a minority for purposes of admissions in 1976. Chin Decl. ¶ 16.
Asian Americans continue to be included in race-conscious employment programs, such as public
contracting, because they remain underrepresented in many fields. See, e.g., AAJC Fisher Amicus
Br. at 7. And there are wide disparities in the socioeconomic status and educational opportunities
for various Asian American sub-groups. See Tran Decl. ¶ 5 (noting feelings of isolation among
Southeast Asian students “due to expectations that [they] have had similar opportunities as other
Asian students, when instead [they] come from a demographic with a distinctly lower educational
and economic background”). Thus, Asian Americans also benefit from an admissions process that
considers each person’s specific circumstances and experiences that stem from their race. Finally,
race-conscious policies that produce diverse educational environments benefit everyone by
teaching cross-racial understanding, debunking stereotypes, and grooming students to create and
support more equitable workplaces and communities.
B.

Serious Flaws in SFFA’s Statistical Analysis Undermine SFFA’s Arguments
to Eliminate Race-Conscious Admissions.

In trying to eliminate all considerations of race in Harvard’s admissions process, SFFA
utilizes a statistical analysis that fundamentally misconstrues the holistic nature of that process by
23

placing too much emphasis on applicants’ academic qualifications, rather than the non-academic
qualifications that distinguish competitive candidates within a pool of Harvard applicants with
exceptional academic credentials. Card Rep. at 12, 16, 28-31, 48, 65, 79; Rebuttal Report of David
Card, Ph.D., Ex. 37 to Decl. of Felicia H. Ellsworth in Supp. of Harvard’s Mot. for Summ. J (“Card
Rebuttal”) at 4, 10-15. SFFA’s misplaced emphasis on the academic qualifications of competitive
applicants, who are already in the upper margins of the pool, see Card Rep. at 6, is particularly
egregious given the racial discrimination inherent in the standardized test scores that make up a
large part of the academic criteria. See supra Section I.B.
Concerns that SFFA manipulated data to achieve its conclusions arise from questionable
decisions made in its analysis. For example, SFFA compares applicants’ data across all six years
(rather than each year individually)13 and omits applicants—such as athletes, legacies, children of
faculty, children of large donors and others who are on the Dean’s or Director’s interest list—who
receive special consideration, but nonetheless are still part of the admissions process.14 In addition,
SFFA ignores important control variables, such as parental occupation, intended career, and staff
interview ratings,15 and the analysis of the “personal rating” does not consider applicants’ personal
essays, which are a key component of that rating.16
Adjustments to SFFA’s statistical analysis raise serious questions as to whether it has met
its burden to prove that Harvard’s consideration of race, as one of many factors, in its admissions
process directly discriminates against Asian American applicants. Card Rep. at 46, 62-65, 79; Card

13

Card Rep. at 51-54, 66; Card Rebuttal at 7, 39-40, 43-46.
Card Rep. at 34-35, 57-58; Card Rebuttal at 18, 30, 46-52, 55. These applicants include recruited athletes,
children of Harvard or Radcliffe alumni, individuals on special interest lists maintained by the Dean and Director of
Admissions (which tend to include applicants related to donors), and children of Harvard faculty and staff. Card Rep.
at 34; Card Rebuttal at 46. Plaintiffs initially omitted Early Action candidates as well, but later included these
applicants in their analysis. Card Rebuttal at 46 n.84.
15
Card Rep. at 40-44, 48, 79; Card Rebuttal at 6-7, 18, 34-35, 40-43, 43, 55.
16
Card Rep. at 70; Card Rebuttal at 5, 21-22.
14

24

Rebuttal at 53-55. Indeed, rather than finding statistically significant disparities against Asian
Americans, Harvard’s expert found that, in four of the six years examined, Asian American
applicants had an increased likelihood of admission (though statistically insignificant) compared
to white applicants.17 Card Report at 67, 78-79. Moreover, being Asian American increased the
likelihood of admission (though again statistically insignificant) for women and applicants from
California, which are two large subgroups of Asian American applicants,18 thus undermining
SFFA’s assertion of an “Asian penalty.” Card Rep. at 75-78, 80; Card Rebuttal at 8, 53, 60-63.
An examination of the effect of an applicant’s intended career, which SFFA omitted from
its analysis, illustrates how certain factors (other than race) may influence the likelihood of
admission. Harvard’s statistical analysis, which included this factor, found that 30% of Asian
American applicants—compared to 19% of white applicants—identified medicine or health as
their intended career. This intended career has the lowest admission rate (5%) of all intended
careers. Card Rep. at 44. Harvard’s expert also found that intended career, as well as several other
factors, have a greater impact than race on an applicant’s admission to Harvard. Card Rep. at 83.
Of additional concern is the possible variation of admission rates among specific Asian
American subgroups, which may differ from the admission rates for Asian Americans as a
whole. Asian Americans have the most intra-group economic inequality, and viewing them as a
single entity masks significant disparities among subgroups. Rakesh Kochhar & 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-

rapidly-among-asians/; see also Alia Wong, ‘The Model Minority’ at the Country’s Top-Ranked

SFFA’s discrimination claim focuses on comparisons between Asian American and white student
applicants. SFFA has conceded that any positive effect of race on the admission of Black and Latinx applicants would
not cause the alleged negative effect of race on Asian American applicants. See Pl.’s Br. at 13.
18
One-half of Asian American applicants are female, and 30% are from California. Card Rep. at 80.
17

25

Universities, THE ATLANTIC, Sept. 24, 2015 (discussing very low rates for Laotian, Hmong, and
Cambodian American students in attaining higher education), https://www.theatlantic.com/
education/archive/2015/09/university-california-top-rankings-asian-students/407080/.

SFFA’s

overreliance on academic achievement (defined in large part by standardized test scores) in its
statistical analysis, coupled with the wide variation of test scores among Asian American
subgroups discussed above, see supra Section I.B, provide additional grounds to question its
conclusions, which are centered on a false view of “Asian Americans” as a monolithic group of
people. See Decl. of Fatima Shahbaz ¶ 13 (“[To] reduce Asian Americans to their test scores is,
quite frankly, offensive because it supports the notion that Asian Americans are just a summation
of their test scores, instead of real individuals with personal struggles and triumphs that have
shaped their lives.”).
Of course, as Harvard’s expert opined, statistical analyses have limitations in examining
subjective factors that are difficult to reduce to quantifiable variables, such as an applicant’s
personal essay that makes up a significant portion of the personal rating. See Card Rep at 32-33,
70. However, it is SFFA’s burden to prove its claims, and it has chosen to do so with statistical
analyses that, when scrutinized, are vulnerable to several important criticisms.
C.

SFFA’s Requested Remedy—the Erasure of Race from Harvard’s Admissions
Process—Would Not Address the Alleged Discrimination Against Asian
Americans.

Because far fewer Black, Latinx, and Native American students apply to elite colleges and
universities, as compared to white applicants, the decrease in their admissions due to the
elimination of race considerations would not greatly benefit Asian American student applicants.
See Goodwin Liu, The Causation Fallacy: Bakke and the Basic Arithmetic of Selective Admissions,
100 MICH. L. REV. 1045, 1046 (2002). In fact, according to Harvard’s expert, eliminating all

26

considerations of race would increase the Asian American share of the admitted class by 3
percentage points—from 24% to 27%—while at the same time increasing the share of white
students by almost triple that amount—8% percentage points, from 40% to 48%. Card Rep. at 103.
SFFA concedes that, according to its own statistical analysis, any advantage to Black and Latinx
applicants due to their race does not account for the alleged negative effect of Harvard’s admission
system on Asian American applicants. See Pl.’s Br. at 13.
If there is discrimination against Asian American applicants in the personal category
rating—whether due to implicit or other bias by Harvard or some other outside entity, such as
teachers, guidance counselors, or alumni interviewers—Harvard must take immediate action to
eliminate and/or counter this bias. But “we must be careful not to conflate society’s tendency to
view the [Asian American/Pacific Islander] experience as a monolithic one with any effects of
race-conscious admissions.” Ho Decl. ¶ 11. The solution to the question of bias is “not to erase all
applicants’ identities by eliminating race consciousness.” Yasin Decl. ¶ 5. Instead, Harvard can
better ensure that implicit bias does not infect decisionmaking by providing implicit bias training
to everyone involved in the admissions process (with a focus on understanding both the shared
experiences of Asian Americans and the varied experiences of people from different Asian
American subgroups), hiring additional Asian American admissions officers, and recruiting
additional Asian American alumni interviewers. Harvard should also reconsider its approach of
grouping all Asian American and Pacific Islander applicants together as a single ethnic
demographic in the admissions process, which cloaks the myriad distinct identities under that

27

banner and may also disadvantage members of certain subgroups. These recommendations apply
equally to eliminate and/or counter biases against all other communities of color.19
SFFA’s true motivations are laid bare by the fact that, instead of advancing remedies that
would actually help Asian Americans, it instead seeks a remedy that would dramatically improve
the rate of admission of white student applicants. Card Rep. at 103 (noting that elimination of race
would cause the white share of admitted class would increase from 40% to 48%). SFFA’s
transparent display of false concern for the real interests of Asian Americans is unsurprising given
that Edward Blum is the engine behind this litigation. Indeed, Mr. Blum has long been a foe of
civil rights on a mission to put an end to “race-based laws and policies.” Joan Biskupic, Special
Report: Behind U.S. Race Cases, a Little Known Recruiter, REUTERS, Dec. 4, 2012, http://www.
reuters.com/article/us-usa-court-casemaker-idUSBRE8B30V220121204. In this quest, he has
brought multiple lawsuits to make college admissions less diverse and inclusive, including Fisher
and a pending case brought by SFFA against the University of North Carolina (“UNC”). Stephanie
Mencimer, Here’s the Next Sleeper Challenge to Affirmative Action: The Guy Who Engineered
the Fisher Case in the Supreme Court Isn’t Done Yet, MOTHER JONES, July 19, 2016, http://www.
motherjones.com/politics/2016/07/abigail-fisher-going-stay-mad.
Mr. Blum has no history of advocacy for the Asian American community and has made
clear that the genesis of this lawsuit was his failure to prevail in the Fisher litigation. See
SCOTUSblog on Camera: Edward Blum (Complete), SCOTUSblog, http://www.scotusblog.com/
media/scotusblog-on-camera-edward-blum-complete (presenting a video of Edward Blum

19
For example, the category of “Black” applicants can include both recent African or West Indian immigrants
and African Americans who are the descendants of people who toiled under slavery and whose families have lived in
the United States for generations through the Jim Crow era and Civil Rights Movement. Both bring distinct
experiences and identities to Harvard’s campus. See Sara Rimer & Karen W. Arenson, Top Colleges Take More
Blacks, but Which Ones?, N.Y. TIMES, June 24, 2004, https://www.nytimes.com/2004/06/24/us/top-colleges-takemore-blacks-but-which-ones.html.

28

describing his plan to sue Harvard and UNC). Tellingly, the founders of SFFA include Mr. Blum,
Abigail Fisher, and her father. Harvard’s SMF ¶ 241. Mr. Blum has readily admitted that the goal
of suing Harvard and UNC “is to eliminate the use of race or ethnicity in applying. So, I needed
plaintiffs. I needed Asian plaintiffs.” SCOTUSblog, supra. Thus, SFFA cannot credibly assert that
it is seeking redress for the benefit of Asian American applicants by pursuing this case. Rather,
this litigation is a naked and cynical attempt to once again challenge well-settled law and make
spurious and controversial claims of discrimination for the sole purpose of preventing Harvard and
other colleges and universities from creating a diverse learning environment for their students.
CONCLUSION
The pressing need for diversity and equity on Harvard’s campus requires race-conscious
admissions to help foster an inclusive environment that facilitates meaningful exchanges between
students of all backgrounds. “[N]othing 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.’” Grutter, 539 U.S. at 324 (quoting Bakke, 438 U.S. at 313). As members of the Harvard
student and alumni community, Amici Curiae urge this Court to follow clear precedent and reject
Plaintiff’s dubious challenge to Harvard’s narrowly-tailored efforts to foster diversity and
inclusion by considering race, as one of many factors, in its admissions decisions.

29

Dated: July 30, 2018
Respectfully submitted,
/s/ Jin Hee Lee
Sherrilyn Ifill*
Janai Nelson*
Samuel Spital*
Jin Hee Lee*
Rachel Kleinman*
Cara McClellan*
NAACP Legal Defense &
Educational Fund, Inc.
40 Rector Street, 5th Floor
New York, NY 10006
[phone]
Michaele N. Turnage Young*
Jennifer A. Holmes*
NAACP Legal Defense &
Educational Fund, Inc.
700 14th Street NW, Suite 600
Washington, DC 20005
[phone]
/s/ Kenneth N. Thayer
Kenneth N. Thayer, BBO #61029
[e-mail]
Kate R. Cook, BBO #650698
[e-mail]
Sugarman, Rogers, Barshak & Cohen, P.C.
101 Merrimac Street (9th floor)
Boston, MA 02114-4737
[phone]
Counsel for Amici Curiae Harvard-Radcliffe
Black Students Association, Kuumba Singers
of Harvard College, Fuerza Latina of
Harvard, Native Americans at Harvard
College, Harvard-Radcliffe Asian American
Association, Harvard-Radcliffe Asian
American Women’s Association, Harvard
Asian American Brotherhood, Harvard
Vietnamese Association, Harvard-Radcliffe
Chinese Students Association, Harvard
Korean Association, Harvard Japan Society,
30

Harvard South Asian Association, Harvard
Islamic Society, Task Force on Asian and
Pacific American Studies at Harvard
College, Harvard Phillips Brooks House
Association, Harvard Minority Association
of Pre-Medical Students, Coalition for a
Diverse Harvard, First Generation Harvard
Alumni, Native American Alumni of Harvard
University, Harvard University Muslim
Alumni, and Harvard Latino Alumni
Alliance
*Pro Hac Vice Admission Pending

31