Students for Fair Admissions, Inc. v. President and Fellows of Harvard College et al
Filing
471
AMICUS BRIEF filed by Coalition for a Diverse Harvard, First Generation Harvard Alumni, Fuerza Latina of Harvard, Harvard Asian American Brotherhood, Harvard Islamic Society, Harvard Japan Society, Harvard Korean Association, Harvard Latino Alumni Alliance, Harvard Minority Association of Pre-Medical Students, Harvard Phillips Brooks House Association, Harvard South Asian Association, Harvard University Muslim Alumni, Harvard Vietnamese Association, Harvard-Radcliffe Asian American Association, Harvard-Radcliffe Asian American Women's Association, Harvard-Radcliffe Black Students Association, Harvard-Radcliffe Chinese Students Association, Kuumba Singers of Harvard College, Native American Alumni of Harvard University, Native Americans At Harvard College, Task Force on Asian and Pacific American Studies at Harvard College in Support of Defendants' Motion for Summary Judgment. (Attachments: # 1 Exhibit 2 Declaration, # 2 Exhibit 3 Declaration, # 3 Exhibit 4 Declaration, # 4 Exhibit 5 Declaration, # 5 Exhibit 6 Declaration, # 6 Exhibit 7 Declaration, # 7 Exhibit 8 Declaration, # 8 Exhibit 9 Declaration, # 9 Exhibit 10 Declaration, # 10 Exhibit 11 Declaration, # 11 Exhibit 12 Declaration, # 12 Exhibit 13 Declaration, # 13 Exhibit 14 Declaration, # 14 Exhibit 15 Declaration, # 15 Exhibit 16 Declaration, # 16 Exhibit 17 Declaration)(Thayer, Kenneth)
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
Leave to file granted on July 31, 2018
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:
2
The gender-neutral term “Latinx” is used herein to refer collectively to Latinos, Latinas, and non-binary
persons of Latin American background.
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
3
the latest strategy in 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 race-conscious 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
4
diverse student body, including racial diversity). As recently as 2016, the Supreme Court
reaffirmed the core 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 raceconscious 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.
5
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 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.
6
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 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,
3
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.
7
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
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-ofproposition-209-and-our-duty-to-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 raceconscious 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
4
The Asian race category in Harvard’s data is not disaggregated by specific ethnic groups.
8
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.
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
5
“‘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, Harvardtrained 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.
9
“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,
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.
10
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 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
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
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 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
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
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 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,
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
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 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
1970-96 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:
14
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 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 selfconfidence 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
15
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.
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
16
enough to foster inclusion,” and the task often falls to students of color to support each other.12
Decl. of 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. ¶¶ 1112. 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, communitybuilding 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 decades-long 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).
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/.
17
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 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
18
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
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
19
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
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
20
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 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
21
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, one-quarter 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 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/racistanti-asian-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
22
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/travel-ban-japanese-internment-trumpsupreme-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
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
23
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 placing too much emphasis on applicants’ academic qualifications, rather than the nonacademic 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—
13
Card Rep. at 51-54, 66; Card Rebuttal at 7, 39-40, 43-46.
24
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 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
14
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.
17
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.
25
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-sis-rising-most-rapidly-among-asians/; see also Alia Wong, ‘The Model Minority’ at the
Country’s Top-Ranked 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
26
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 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
27
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 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,
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-collegestake-more-blacks-but-which-ones.html.
28
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
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
29
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.
30
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
(212) 965-2200
Michaele N. Turnage Young*
Jennifer A. Holmes*
NAACP Legal Defense &
Educational Fund, Inc.
700 14th Street NW, Suite 600
Washington, DC 20005
(202) 682-1300
/s/ Kenneth N. Thayer
Kenneth N. Thayer, BBO #671029
thayer@sugarmanrogers.com
Kate R. Cook, BBO #650698
cook@sugarmanrogers.com
Sugarman, Rogers, Barshak & Cohen, P.C.
101 Merrimac Street (9th floor)
Boston, MA 02114-4737
(617) 227-3030
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,
31
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
*Admitted Pro Hac Vice
32
CERTIFICATE OF SERVICE
I hereby certify that on the 3rd day of August, 2018, a copy of the above and foregoing
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,
VIETNAMESE
HARVARD
ASIAN
ASSOCIATION,
AMERICAN
BROTHERHOOD,
HARVARD-RADCLIFFE
CHINESE
HARVARD
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, 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 was filed electronically with the Clerk of Court using the CM/ECF system. Notice
of this filing will be sent to all counsel of record by operation of the court’s electronic filing
system.
/s/ Kenneth N. Thayer
Kenneth N. Thayer, BBO #671029
thayer@sugarmanrogers.com
Sugarman, Rogers, Barshak & Cohen, P.C.
101 Merrimac Street (9th floor)
Boston, MA 02114-4737
(617) 227-3030
33
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