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

Filing 514

AMICUS BRIEF filed by Center for Equal Opportunity, Reason Foundation, Southeastern Legal Foundation in Opposition to Defendants Motion for Summary Judgment. (Lawrence, Douglass)

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

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

BRIEF OF AMICI CURIAE SOUTHEASTERN LEGAL FOUNDATION,
THE CENTER FOR EQUAL OPPORTUNITY, AND
REASON FOUNDATION IN OPPOSITION TO DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT AND IN SUPPORT OF PLAINTIFF’S
MOTION FOR SUMMARY JUDGMENT
Peter Antonelli, Esq.
Douglass C. Lawrence, Esq.
Curran Antonelli LLP
22 Boston Wharf Rd., 7th Floor
Boston, MA 02210
[e-mail]
[e-mail]
John J. Park, Jr. Esq.
Strickland Brockington Lewis LLP
1170 Peachtree St., Ste. 2200
Atlanta, GA 30309
[e-mail]
(pro hac vice admission pending)

TABLE OF CONTENTS
TABLE OF AUTHORITIES ……………..………………………………….……ii
STATEMENT OF INTEREST ………………….…...……………………………1
SUMMARY OF THE ARGUMENT …………………………………………...…3
ARGUMENT ……………………………………………………………………....4
I.

The Harvard admissions process discriminates against Asian-American
applicants and extends preferential treatment to African-American and
Hispanic applicants……………...…………………………………………..5
A.

Harvard penalizes Asian-American applicants……………………….6

B.

Harvard employs significant preferences in favor of African American
and Hispanic applicants…………………..…………………………12

C.

For the post-2016 admission cycles, Harvard set a floor for AfricanAmerican admissions………………………………………………..14

II.

Harvard’s plea for deference and its invocation of diversity as an explanation
should be rigorously examined……………..…….......................................15

III.

Harvard’s admissions program is not narrowly tailored because it unduly
harms Asian-American applicants……………………………………….…19

CONCLUSION...….…………………………………….………………………..20
CERTIFICATE OF SERVICE................................................................................22

i

TABLE OF AUTHORITIES
CASES
Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) .....................................15
Adarand Constructors, Inc. v. Slater, 528 U.S. 216 (2000) ......................................1
City of Richmond v. J. A. Croson Co., 488 U.S. 469 (1989) ...................... 1, 4, 5, 17
Fisher v. University of Texas at Austin, 136 S. Ct. 2198 (2016) ..................... passim
Fisher v. University of Texas at Austin, 570 U.S. 297 (2013) .................... 1, 4, 5, 15
Fullilove v. Klutznick, 448 U.S. 448 (1980) ..............................................................5
Grutter v. Bollinger, 539 U.S. 306 (2003) .................................................... 5, 15, 19
McConnell v. Federal Election Commission, 540 U.S. 93 (2003) ............................1
Northeastern Florida Chapter of Associated General Contractors of America v.
City of Jacksonville, 508 U.S. 656 (1993) ..............................................................1
Northwest Austin Municipal Utility District No. One v. Holder,
557 U.S. 193 (2009) ................................................................................................1
Regents of Univ. of Cal. v. Bakke, 438 U.S. 265 (1978)......................................4, 17
Shelby County v. Holder, 570 U.S. 529 (2013) .........................................................1
Wygant v. Jackson Bd. of Educ., 476 U.S. 267 (1986) ..............................................4
OTHER AUTHORITIES
Althea Nagai, Too Many Asians: Affirmative Discrimination in Elite College
Admissions 13 (Center for Equal Opportunity 2018) ...........................................12

ii

Harvard Investigates Harvard: “Does the Admissions Process Disadvantage
Asians?” (Center for Equal Opportunity, 2018)........................................... passim
Richard Sander & Stuart Taylor Jr., Mismatch: How Affirmative Action Hurts
Students It’s Intended to Help, and Why Universities Won’t Admit It (Basic
Books 2012) ..........................................................................................................18

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STATEMENT OF INTEREST1
Southeastern Legal Foundation (SLF), founded in 1976, is a national
nonprofit, public interest law firm and policy center that advocates for
constitutional individual liberties, limited government, and free enterprise in the
courts of law and public opinion. SLF drafts legislative models, educates the
public on key policy issues, and litigates regularly before the Supreme Court and
federal courts, including such cases as Fisher v. University of Texas at Austin,
136 S. Ct. 2198 (2016); Fisher v. University of Texas at Austin, 570 U.S. 297
(2013); Shelby County v. Holder, 570 U.S. 529 (2013); Northwest Austin
Municipal Utility District No. One v. Holder, 557 U.S. 193 (2009); McConnell v.
Federal Election Commission, 540 U.S. 93 (2003); Adarand Constructors, Inc. v.
Slater, 528 U.S. 216 (2000); Northeastern Florida Chapter of Associated
General Contractors of America v. City of Jacksonville, 508 U.S. 656 (1993);
and City of Richmond v. J. A. Croson Co., 488 U.S. 469 (1989).
The Center for Equal Opportunity (CEO) is a research and educational
organization formed pursuant to Section 501(c)(3) of the Internal Revenue Code
and devoted to issues of race and ethnicity. Its fundamental vision is
straightforward: America has always been a multiethnic and multiracial nation,
and it is becoming even more so. This makes it imperative that our national

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All parties have consented to the filing of this brief.
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policies do not divide our people according to skin color and national origin.
Rather, these policies should emphasize and nurture the principles that unify us.
E pluribus unum . . . out of many, one. CEO supports color-blind policies and
seeks to block the expansion of racial preferences in all areas.
Reason Foundation (Reason) is a national, nonpartisan, and nonprofit
public policy think tank, founded in 1978. Reason’s mission is to advance a free
society by applying and promoting libertarian principles and policies—including
free markets, individual liberty, and the rule of law. Reason supports dynamic
market- based public policies that allow and encourage individuals and voluntary
institutions to flourish. Reason advances its mission by publishing Reason
magazine, as well as commentary on its websites, and by issuing policy research
reports. To further Reason’s commitment to “Free Minds and Free Markets,”
Reason selectively participates as amicus curiae in cases raising significant
constitutional issues.
Amici advocate for a color-blind interpretation of the Constitution and the
preservation of the rights granted all citizens in the Equal Protection Clause.
They also vigorously defend the right to educational opportunities regardless of
race. This case is important because it threatens to erode the highest standards
required to include race as a consideration in college admissions.

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SUMMARY OF THE ARGUMENT
There is overwhelming evidence that Harvard uses racial preferences against
Asian-Americans as part of its admissions program. In addition to Dr.
Arcidiacono’s conclusions, a number of independently published studies show
how Harvard penalizes Asian-Americans – this includes the findings of Dr.
Althea Nagai, a research fellow at the Center for Equal Opportunity, whose
published studies inform exactly how Harvard penalizes Asian-Americans. That
evidence compels application of strict scrutiny to evaluate the constitutionality of
Harvard’s admissions program.
To satisfy strict scrutiny, Harvard must show that it is pursuing a
constitutional goal in a narrowly tailored way. Consequently, an invocation of
diversity must be justified in a particular way, not a general one. In particular,
Harvard has to show that there are compelling educational benefits that follow
from using racial preferences to limit the number of Asian-Americans admitted
in the name of greater student body diversity. Further, these benefits must be
capable of judicial evaluation and outweigh the obvious costs of discriminating
against Asian-American applicants. Likewise, Harvard’s claim of narrow
tailoring, which is not entitled to judicial deference, cannot favor one minority
over another. This Court should deny Harvard’s motion because Harvard cannot

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satisfy strict scrutiny since, among other factors, its admissions program favors
African-American and Hispanic applicants while penalizing Asian-Americans.
ARGUMENT
Before accepting Harvard’s assertion that it uses race in a constitutionally
acceptable way in its admissions process, this Court must look closely at how the
Harvard program works in practice. Fisher v. Univ. of Tex. at Austin, 570 U.S.
297, 313 (2013) (Fisher I). Harvard uses racial preferences against AsianAmericans, thereby requiring Harvard to identify a compelling interest that can
justify treating Asian-Americans differently from other applicants and showing
how its consideration of race is necessary to further that interest. City of
Richmond v. J. A. Croson Co., 488 U.S. 469, 494 (1989) (“[T]he standard of
review under the Equal Protection Clause is not dependent on the race of those
burdened or benefited by a particular classification.”); accord Wygant v. Jackson
Bd. of Educ., 476 U.S. 267, 273-74 (1986) (plurality op.).
Some 30 years ago, Justice Powell noted that Harvard’s admissions program
never used race as the decisive factor, but merely as one of the many “pertinent
elements of diversity.” Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 316-17
(1978). Undoubtedly, he did not fathom that 30 years later the evidence would
overwhelmingly show Harvard’s penchant for stacking the decks against AsianAmerican applicants. Put simply, “[i]n every admission cycle, Asian-American
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admit rates are below the average admit rate for the class and for all other racial
groups.” Decl. of Peter Arcidiacono, Expert Report 24, ECF No. 415-1; 25
Figure 1.1; see also Rebuttal Expert Report 15, ECF No. 415-2 (“The AsianAmerican admit rate was below the total admit rate every year from the Class of
2000 through the Class of 2019.”)
I. The Harvard admissions process discriminates against Asian-American
applicants and extends preferential treatment to African-American and
Hispanic applicants.
Harvard’s admissions program not only discriminates against AsianAmericans, it also gives preferences to African-American and Hispanic
applicants. “Race may not be considered [by a university] unless the admissions
process can withstand strict scrutiny.” Fisher v. Univ. of Tex. of Austin, 136 S. Ct
2198, 2208 (2016) (Fisher II) (quoting Fisher I, 570 U.S. at 309). As a result,
Harvard’s racial classifications are constitutional “only if they are narrowly
tailored to further compelling governmental interests.” Fisher I, 570 U.S. at 30910; accord Grutter v. Bollinger, 539 U.S. 306, 343 (2003) (Title VI). “[B]ecause
racial characteristics so seldom provide a relevant basis for disparate treatment,
and because classifications based on race are potentially so harmful to the entire
body politic, it is especially important that the reasons for any such classification
be clearly identified and unquestionably legitimate.” City of Richmond v. J. A.

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Croson Co., 488 U.S. at 505 (quoting Fullilove v. Klutznick, 448 U.S. 448, 53335 (1980) (Stevens, J., dissenting)).
A. Harvard penalizes Asian-American applicants.
Harvard penalizes Asian-American applicants in two ways. First, there is a
penalty for simply being Asian-American. Second, the personal ratings assigned
to Asian-American applicants by Harvard’s admissions office are inexplicably
lower than those assigned to other races. Significantly, the magnitude of the
penalty is understated.
In 2012 and 2013, Harvard’s Office of Institutional Research (OIR) issued a
report and a memorandum looking at the prospects of Asian-American applicants
for admission. Harvard kept those materials confidential until the litigation began
and now characterizes them as preliminary drafts that it never finalized. This is
likely because, as Dr. Althea Nagai notes, the statistics in Harvard’s OIR report
and memo demonstrate that Harvard’s process penalizes Asian applicants for
simply being Asian. Althea Nagai, Harvard Investigates Harvard: “Does the
Admissions Process Disadvantage Asians?” 16 (Center for Equal Opportunity,
2018) (Harvard Investigates Harvard).2 More specifically, she explains “While
it is true that OIR reached no final conclusions regarding bias against Asian
applicants, the statistics themselves might be said to be the conclusion.” Id. at 18.

2

Available at www.ceousa.org.
6

For example, the OIR statistics show that when it used a logistic regression
analysis to review admissions data for the classes of 2009 through 2016, it
“found only one negative, statistically significant factor – being Asian.” Id. at 14
and Table 1 (emphasis added). “All other things being equal, being white worked
to an applicant’s advantage (not to mention being African-American or Native
American or, to a lesser extent, being Hispanic).” Id. at 16. That negative factor
is independent of “other variables, including the personal ratings.” Id. Thus,
OIR’s logistic regression analysis demonstrates the existence of a “clearly []
separate Asian effect – lower admissions rates for Asian applicants were not just
because of lower personal ratings or less importance placed on high academic
ratings.” Id.
Consistent with Dr. Nagai’s conclusions, Dr. Arcidiacono also highlights
Harvard’s penchant for penalizing Asian-American applicants. He observes that
the academic performance and extracurricular activities of Asian-American
applicants are significantly stronger than those presented by applicants of other
racial groups. Rebuttal Expert Report 2, ECF No. 415-2, 41-42 and Table 5.1
(academic index); id. at 12-13. Indeed, if Harvard considered only academic
credentials, Asian-Americans would make up 43% of the entering class. Harvard
Investigates Harvard at 2, 6 and Figure 1; see also Expert Report 45-46, ECF
No. 415-1.
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The evidence only strengthens when one considers extracurricular activities
and other, more subjective factors. This is because Asian-American applicants
have higher extracurricular ratings and “are stronger than African-American and
Hispanic applicants on all . . . dimensions except two: the athletic and personal
ratings.” Expert Report at 37;3 see also id. at 47 and Table 5.4 (noting that
applicants with higher academic indexes generally have higher extracurricular
scores). Whereas, for school support measures like the ratings by the first and
second teachers and counselors, the results for Asian-Americans lag behind those
of comparable African-Americans and Hispanics. Id. at 48 and Table 5.5. As
candidates become more competitive on other academic measures, “AsianAmerican applicants have similar probabilities of receiving a two to whites and
Hispanics one decile below and to African-Americans two deciles below (across
all three [school support] ratings).” Id.
In her article, Dr. Nagai demonstrates how OIR’s statistics show the same
thing. She notes, “Asians experienced the biggest impact when all nonacademic
factors including race were added, resulting in an Asian admit percentage of
18%, down from the hypothetical 43%.” Harvard Investigates Harvard at 11.
More specifically, “[l]egacy plus athlete dropped them 12 percentage points;

3

The athletic rating is “relatively unimportant.” Expert Report 37, ECF No. 415-1;
see also id. at 24 n.31.
8

extracurricular plus personal ratings 5 points. From there, Asians dropped a final
8 points and made up 18% of all admits.” Id.
The differences reflecting the penalization of Asian-American applicants
“stand out” most in the personal ratings that come from Harvard’s admissions
office and alumni. Expert Report 63, ECF No. 415-1. Even though AsianAmerican applicants have the highest academic indexes, they “have the lowest
shares receiving a 2 or better on Harvard’s personal rating of the four main racial
groups.” Id. at 49, 49 Table 5.6. For example, in the top decile, Asian-Americans
get a 2 or better at half the rate that African-Americans in that decile get those
scores; Asian-Americans also trail Hispanics by 12 percentage points, and whites
by seven points. Id. at 49-50. That said, “the treatment of Asian Americans in
the scoring of alumni personal rating is much different than Harvard’s own
scoring of Asian-American applicants on the personal rating.” Id. at 50. Any
racial disparity in the alumni personal rating for Asian-American applicants is
“less than half of the disparity that exists in the Harvard personal rating.” Id.
(emphasis added). That “stark” difference “between the alumni personal ratings
and the personal ratings assigned by Harvard’s admissions office . . . is indicative
of a penalty against Asian-American applicants in the scoring of the personal
ratings.” Id. Dr. Nagai concurs, pointing out that “the low personal ratings . . .
best explain the drop in Asian admits.” Harvard Investigates Harvard, at 9. Per
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OIR’s summary: “Personal rating is important in models of the admissions
process and drive some of the demographic differences we see.” Id.
The importance of personal ratings to the process can be seen in two ways.
First, in OIR’s logistic regression analysis of various factors pertinent to the
admissions process, it found that a personal rating of a 1 or 2 was the second
most important factors, behind an athletic rating of 1 and just ahead of legacy. Id.
at 14 and Table 1. Second, as Dr. Arcidiacono finds, while 21.27% of white,
19.01% of African-American, and 18.68% of Hispanic applicants received a high
personal rating of 1 or 2, only 17.64% of Asian applicants received the same.
Rebuttal Expert Report 106, 106 Table 4.1R, ECF No. 415-2. Dr. Nagai explains,
“These differences in percentages seem small, but for a study of 200,000
applicants a few percentage-point differences among applicants result in
significant differences in the final racial composition of admits.” Harvard
Investigates Harvard at 9, n.14.
Taken as a whole, Harvard’s process puts Asian-Americans at a statistically
significant disadvantage vis-à-vis whites and, of course, also African-Americans
and Hispanics. Dr. Arcidiacono explains that a male Asian-American applicant
who is not disadvantaged with a 25% chance of admission would have a 36%
chance of admission if he were white, a 77% chance if he were Hispanic and a
95% chance if he were African-American. Expert Report 3, 7, 65-66, 65 Table
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7.1, ECF No. 415-1. Those changes in probability are both “large and
statistically significant.” Id. at 65. Even with the inclusion of the admissions
criteria that penalize Asian-Americans – the personal and overall ratings – the
substantial changes in probability persist; an Asian American male who is not
disadvantaged with a 25% chance of admission would have a 32.5% chance
admission if he were white, a 68.7% chance of admission if he were Hispanic,
and a 90% chance of admission if he were African American. Id. at 66, 65 Table
7-1.
Dr. Arcidiacono further notes that “at least three reasons” explain why his
estimates concerning the effect of the penalty on Asian-Americans and the
preferences for African-Americans and Hispanics are underestimated. Id. at 77.
First, Asian-Americans appear to be included in the percentage of applicants who
do not report their race or ethnicity. “[S]tarting from the Class of 2010
admissions cycle, rises (falls) in the share missing are accompanied by falls
(rises) in the share of both Asian-American and white applicants. A similar
pattern is not seen for African-American or Hispanic applicants.” Id. Second,
given that Asian-Americans are “incredibly strong” on the observed factors, they
are likely to be stronger on the unobserved elements as well. Id. Third, “the
results also suggest bias in the other Harvard rankings measures that are more

11

subjective,” including the way in which Asian-American application packages
are held to a higher standard.” Id. at 78 and Appendix C.
Finally, Harvard caps the number of Asians that it will admit. Dr. Nagai
reviewed data for the period from 1983 to 2016 and found that Asian-American
enrollment at Harvard was some 4% in 1980 and rose to 21% by 1993, after
which time it dropped before leveling off. Althea Nagai, Too Many Asians:
Affirmative Discrimination in Elite College Admissions 13 (Center for Equal
Opportunity 2018), (Too Many Asians). 4 She concludes, “At Harvard, AsianAmericans as a percentage of all undergraduates sharply increased to 21%, then
significantly dropped and has stayed at roughly 17%.” Id. at 1. The effect on
Asian-Americans alone requires that Harvard’s program be subjected to strict
scrutiny review.
B. Harvard employs significant preferences in favor of AfricanAmerican and Hispanic applicants.
In contrast to the cap on Asian admissions noted above, African-American
and Hispanic applicants benefit substantially from Harvard’s consideration of
race, and only from that consideration. As Dr. Nagai notes, OIR created models
showing the effect of the various factors that Harvard employs in deciding

4

available at
http://ceousa.org/attachments/article/1209/AN.Too%20ManyAsianAms.Final.pd
f
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whether to admit applicants. If only academics were considered, the entering
class would be 38% white, 43% Asian-American, 1% African-American, and 3%
Hispanic. Harvard Investigates Harvard at 6, Figure 1.5 If legacy and athletic
admissions are considered in addition to academics, Harvard’s entering class
would be 48% white, 31% Asian, 2% African-American, and 3% Hispanic. Id. at
7, Figure 2.
The effect of adding both extracurricular activities and personal scores to the
analysis would produce an entering class that is 51% white, 26% AsianAmerican, 2% African-American, and 4% Hispanic. Id. at 8, Figure 3. Low
personal ratings for Asian-Americans “best explain the drop in Asian admits”
from 31% to 26% Id. at 9. Because Asian-Americans scored the highest on
extracurricular activities, the addition of that factor “alone should have boosted
the number of Asian admits, not lowered them,” but that boost was not enough to
offset the low personal ratings given to Asian-American applicants. Id.
When race was included as a factor, the percentage of African-Americans
and Hispanics increased, and the percentage of whites and Asian-Americans
went down. In fact, African-American and Hispanic admissions increased “only”
when race was included. Id. at 11. More specifically, the resulting class would be

5

Dr. Nagai notes that those results “look[] a lot like Caltech, which has race-blind
admissions. In the fall of 2016, Asians made up roughly 43% of Caltech
undergraduates.” Harvard Investigates Harvard at 7 (footnote omitted).
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44% white, 18% Asian-American, 11% African-American, and 19% Hispanic.
Id. at 10, Figure 4. Dr. Nagai points out, “OIR’s predicted percentages in Model
4 [i.e., with race included] were within 1 percentage point of the actual
composition of each racial and ethnic group of admits.” Id.
C. For the post-2016 admission cycles, Harvard set a floor for AfricanAmerican admissions.
Dr. Arcidiacono observes that the admission rate for African-American
applicants “is virtually always above the total admit rate.” Expert Report 27,
ECF No. 415-1. In the admissions cycles for 2017 through 2019, Harvard’s
admissions rates for African-American applicants were “almost exactly the same
as the admit rates for all other domestic applicants.” Id. That phenomenon
stemmed from a change in the methodology for coding applicants who selected
more than one race or ethnicity such that a student who selected more than one
would not be coded as either; “a student who reported his or her race as both
African-American and white would no longer be coded as ‘African-American’
(as Harvard previously had done).” Id. at 28. The effect was that, where for the
19 previous admissions cycles classes the lowest admission rate for AfricanAmerican applicants was above 8%, the rate for single-race African-Americans
in 2017-2019 was below 7%. Id.
More significantly, the difference between the admission rates for AfricanAmerican and non-African-American applicants in 2017 and 2019 was less than
14

three thousandths of a percentage point. Id. and 28 Table 1.1. For 2018, it was
less than seven-hundredths of a percentage point. Id. at 28-29 and 28 Table 1.1.
He observes that these differences are “incredibly small,” and the probability that
such a result could have resulted from “mere happenstance” was vanishingly
small. He concludes, “I can say with 99.8% confidence that Harvard has
manipulated its admissions process to ensure that the African-American
admissions rate tracks the overall admissions rate—it operates as a floor for
African-American admit rates over at least those three admissions cycles.” Id. at
29-30.
Such a floor, a quota by another name, must be subjected to strict scrutiny
review. As the Court noted in Grutter, for race to be constitutionally considered,
it must be used “in a flexible, nonmechanical way.” 539 U.S. at 334. The
statistics reflect an unconstitutional “manipulat[ion]” of the admissions process
to favor African-American applicants. Expert Report 29, ECF No. 415-1
II. Harvard’s plea for deference and its invocation of diversity as an
explanation should be rigorously examined.
Under strict scrutiny, a university must show “with clarity that its ‘purpose
or interest is both constitutionally permissible and substantial, and that its use of
the classification is necessary . . . to the accomplishment of its purpose.’” Fisher
II, 136 S. Ct. at 2208 (quoting Fisher I, 570 U.S. at 309).

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Amici recognize that, in Grutter v. Bollinger, the Supreme Court “endorse[d]
Justice Powell’s view that student body diversity is a compelling . . . interest that
can justify the use of race in university admissions.” 539 U.S. at 325. They
further recognize that a university’s judgment that “diversity is essential to its
educational mission” is entitled to deference. Id. at 328.
That said, just as strict scrutiny is not “strict in theory, but fatal in fact,” id.
at 326 (quoting Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 237 (1995),
deference to a university cannot shield a flawed admissions process from
scrutiny. Rather, a university like Harvard must do more than simply claim that
“student body diversity—including racial diversity—is essential to our
pedagogical objectives and institutional mission.” Def.’s Memo. in Opp. to Pl.s’
Mot. for Summ. J. 36, ECF No. 435 (Def.’s. Memo). “[A]sserting an interest in
the educational benefits of diversity writ large is insufficient. A university’s
goals cannot be elusory or amorphous—they must be sufficiently measurable to
permit judicial scrutiny of the policies adopted to reach them.” Fisher II, 136 S.
Ct. at 2211.6

6

Harvard says that a university does not have to seek to gain the benefits of
diversity by pursuing a critical mass of underrepresented students. Def.’s Mem.
35, ECF No. 435. That said, a claim of critical mass is capable of judicial
scrutiny in a way that a more generalized claim is not. In any event, Harvard
does not claim to be pursuing critical mass.
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“The Supreme Court has never sought to define diversity with much
precision.” The Harvard Plan That Failed Asian Americans, 131 Harv. L. Rev.
604, 609 (2017). Neither have the universities, which have ringed it with a
protective layer of buzzwords. But, important questions remain: “How much
diversity is sufficient? How big a role can race play in admissions? Is racial
diversity equally important in engineering versus the liberal arts? What does
student body diversity actually look like?” Id. Harvard does not attempt to
answer these questions.
Moreover, the benefits of diversity at Harvard will be different from those at
a public university like the University of Texas or a law school like the
University of Michigan. Harvard must particularize the benefits of its pursuit of
diversity and, thereby, distinguish itself from, among others, the University of
Texas and the University of Michigan Law School. Cf. Croson, 488 U.S. at 505
(rejecting dissent’s suggestion that “findings of discrimination may be ‘shared’
from jurisdiction to jurisdiction” as “unprecedented.”).
The pursuit of diversity should also account for its potential costs and
outweigh them. As Justice Powell observed, “[T]here are serious problems of
justice connected with the idea of preference itself.” Bakke, 438 U.S. at 298
(Powell, J.). The obvious racial preferences that Harvard employs entail personal
unfairness and the rejection of better qualified students on inexplicable and soft
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grounds. To the extent that the academic ratings of African-Americans (9.19%)
and Hispanics (16.74%) trail those of whites (45.29%) and Asian-Americans
(60.21%) by substantial margins, Harvard is setting those less qualified
admissions up for failure. See Rebuttal Expert Report, ECF No. 415-2, Table
4.1R. That mismatch can foster a victim mindset and create pressure on grading
and graduations. See, e.g., Richard Sander & Stuart Taylor Jr., Mismatch: How
Affirmative Action Hurts Students It’s Intended to Help, and Why Universities
Won’t Admit It (Basic Books 2012). These and other costs should be weighed
against the claimed benefits of diversity.
Just as important questions about diversity are unanswered, it is unclear how
much of a “plus” race or ethnicity can be in an applicant’s file. Here, Dr. Nagai
shows that, when OIR added race and ethnicity as an admissions factor, AfricanAmericans went from 2% of admissions to 11% of admissions, and Hispanics
went from 4% to 10%. Harvard Investigates Harvard, 8-10 and Figures 3 and 4.
In fact, “Hispanic and African American admits only increased in number when
race was added as a factor. The other added factors hardly moved the numbers.”
Id. at 11 (emphasis added). OIR’s logistic regression analysis also shows how
important it was to be an African-American applicant; being an AfricanAmerican is the fourth most important factor, just behind legacy. Id. at 14 and

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Table 1; see also id. at 15 (“[B]eing African-American was worth almost as
much as having a high personal rating or being a legacy.”).
This Court should require Harvard to explain why diversity justifies a
penalty for being Asian, both generally and with respect to the Admissions
Office’s subjective personal ratings, and why Hispanic and African-American
admissions increase only when race is considered. Absent an explanation for
those alarming facts, Harvard’s plea for judicial deference should be rejected.
III. Harvard’s admissions program is not narrowly tailored because it
unduly harms Asian-American applicants.
“Fisher I clarified that no deference is owed when determining whether the
use of race is narrowly tailored to achieve the university’s permissible goals.”
Fisher II, 136 S. Ct. at 2208. Because preferences pose serious concerns about
justice, the burden rests on the university to show that its program is narrowly
tailored to achieve the identifiable and reviewable goals of diversity. “Narrow
tailoring, therefore, requires that a race-conscious admissions program not
unduly harm members of any racial group.” Grutter, 539 U.S. at 341.
Plainly, Harvard’s admissions regime harms Asian-American applicants,
who are just as much of a racial or ethnic group as Hispanics. But, Harvard’s
program rewards Hispanic applicants for being Hispanic and penalizes AsianAmericans for being Asian. Harvard Investigates Harvard at 14, Table 1. It
likewise rewards African-Americans for being African-American. Id. Given the
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way in which Harvard’s program rewards favored races and ethnicities and
penalizes disfavored ones, it cannot be characterized as “narrowly tailored.”
CONCLUSION
Fifteen years ago, the Supreme Court held that “race-conscious admissions
policies must be limited in time.” Grutter, 539 U.S. at 342. Harvard’s
discriminatory admissions program has now been in place for 40 years. Even to
the extent that racial distinctions may have been necessary to promote diversity,
the law demands that Harvard decrease the usage of racial factors because it
cannot satisfy its burden of showing that the use of such factors is narrowly
tailored to meet a compelling interest. It has now been at least 40 years for
Harvard’s admissions program; it is time for Harvard to think about unwinding
it. If Harvard will not do so, this Court should give it a push.

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Respectfully submitted,
SOUTHEASTERN LEGAL
FOUNDATION, THE CENTER FOR
EQUAL OPPORTUNITY, AND
REASON FOUNDATION,
By their attorneys,
/s/ Douglass C. Lawrence
Peter Antonelli, BBO# 661526
[e-mail]
Douglass C. Lawrence, BBO# 657362
[e-mail]
Curran Antonelli, LLP
22 Boston Wharf Road
7th Floor
Boston, MA 02210
Telephone: [phone]
Facsimile: [phone]
John J. Park, Jr.
Strickland Brockington Lewis LLP
1170 Peachtree St., Ste. 2200
Atlanta, GA 30309
[e-mail]
(pro hac vice admission pending)

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CERTIFICATE OF SERVICE
I, Douglass C. Lawrence, hereby certify that on this 30th day of August,
2018, a copy of the foregoing was filed electronically. Notice of this filing will be
sent by e-mail to all parties by operation of the Court’s electronic filing system.
Parties may access this filing through the Court’s system.
/s/ Douglass C. Lawrence
Douglass C. Lawrence

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