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

Filing 518

MOTION Participate in Trial Proceedings by M. B., K. C., Sarah Cole, Y. D., G. E., A. G., I. G., R. H., J. L., Fadhal Moore, Arjini Kumari Nawal, R. S., Itzel Vasquez-Rodriguez, Keyanna Wigglesworth.(Culleen, Lawrence)

UNITED STATES DISTRICT COURT FOR
THE DISTRICT COURT OF MASSACHUSETTS
BOSTON DIVISION

STUDENTS FOR FAIR ADMISSIONS, INC,
Plaintiff,
v.

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

PRESIDENT AND FELLOWS OF
HARVARD COLLEGE (HARVARD
CORPORATION),
Defendant.

MOTION OF STUDENT AMICI CURIAE TO PARTICIPATE IN TRIAL
Pursuant to the Court’s Order on June 15, 2015, welcoming Students to file a motion to
participate in the proceedings should this case proceed to trial, Students respectfully request that
they may participate in trial. (Dkt. 52.) Students would like to participate by making opening
and closing statements (to the extent the Court allows the parties to do so), presenting student
declarant testimony, and cross-examining SFFA’s expert witness Dr. Arcidiacono.
In the Court’s Order denying Students’ motion to intervene, the Court granted Students
leave to participate in this action as amici curiae, including by (1) submitting a brief or
memorandum of law on any dispositive motion in this case; (2) participating in oral argument on
any dispositive motion in this case; and (3) submitting personal declarations or affidavits in
support of their memorandum of law, which may be accorded evidentiary weight if otherwise
proper. (Id. at 23.) The Court further stated “[s]hould this case proceed to trial, amici curiae

may file a motion to participate in the proceedings, and the Court will consider the appropriate
scope of participation at that time.” (Id.)
Students are a racially and ethnically diverse group that includes prospective students,
current students, and alumni of Harvard, all of whom are intimately impacted by Harvard’s raceconscious policies. Students represent a broad cross-section of ethno-racial groups, identifying
as Asian-American, Black, Latino, Native American, and Pacific Islander. Students believe that
their participation in trial would benefit the Court because Students would provide a distinct
perspective.
Absent the participation of Students, there will be no students at trial testifying in support
of Harvard’s consideration of race in admissions as Harvard did not identify any students as part
of its Rule 26 disclosures.
Students are situated differently than both SFFA and Harvard in this litigation in light of
their lived experiences as ethno-racial minorities who have a personal stake in and insight into
racial diversity at Harvard. Students uniformly believe that Harvard’s continued right to consider
race to promote diversity is integral to their ability to access and thrive at one of our nation’s
most elite training grounds for educational opportunities and future leadership. Further, Students
believe that their own race and ethnicity shaped their experiences before, during, and after
college. Given the salience of race in their lives, Students contend that any individualized
assessment must allow students to share information about their race and allow the university to
consider it.

A system that willfully ignored race would fail to fully appreciate their

accomplishments, perspectives, and potential contributions. The outright ban proposed by SFFA
would deeply undermine their dignity by censoring their voices and their experiences as
individuals of color living in country that still reckons with its racist past and present. Moreover,

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students can testify to how Harvard’s race-conscious admissions program has benefitted them
both inside and outside of the classroom.
In addition to providing a distinct student perspective on race-conscious admissions,
Students also depart from both parties with regard to SFFA’s intentional discrimination claim.
Unlike Harvard, Students note the data in the record that suggests special category preferences
disadvantage Asian Americans in the admissions process (as well as other ethno-racial groups)
vis a vis whites but concur with Harvard that SFFA has not demonstrated intentional
discrimination. Students condemn any discrimination that is proven at trial, but fundamentally
disagree with the remedy SFFA seeks: a blanket ban on “any use of race or ethnicity in the
educational setting” in a manner that “does not permit those engaged in the decisional process to
be aware of or learn the race or ethnicity of any applicant for admission.” (Dkt. 1 at 119.)
Students also have raised arguments challenging the analysis and conclusions of Plaintiff’s
expert Dr. Arcidiacono that are different than that of Harvard, and, consistent with that, would
raise unique issues on cross-examination.
SFFA has acknowledged that Students are differentially situated than other amici in this
case, because Students moved to intervene over three years ago and filed their initial declarations
during discovery, which permitted the parties, to the extent necessary, to address the significance
of Students’ declarations. (Dkt. 479 at 4-5.) In similar fashion, Students believe that their
participation in trial would benefit the Court and not prejudice either party. Students file this
motion now to provide ample notice of the limited role Students request to play at trial. Students
also provide below the individual Students who wish to testify at trial, within the discretion of
the Court.

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Students request direct examination of individual Students who previously submitted
declarations, with a cumulative direct examination time of no more than six hours. Students are
providing witness disclosures below so that any opposition to this motion by the parties would be
due on the same day that the parties are responding to each other’s witness disclosures. Thus,
the pre-trial schedule is not compromised in any way by this Motion.
Students witness list is as follows:
1. Sally Chen, who identifies as Chinese American and is a senior at Harvard, is
prepared to provide testimony on: (a) How both her race and class intimately
impacted her educational and extracurricular experiences prior to college; (b) How
her ethno-racial identity was an integral part of both her application and interview for
Harvard; (c) How her review of her application file indicated Harvard appreciated her
perspective as a low-income Chinese American; (d) How her SAT scores and grades
did not fully capture her potential; (e) How ethno-racial diversity on Harvard’s
campus has benefitted her by providing a foundation for her student activism to
secure an Ethnic Studies program that includes Asian American Studies; and (f) How
greater racial diversity is needed at Harvard to improve the racial climate for all
students of color, including Asian Americans. (See Dkt. 440, Ex. 1.6.)
2. Thang Diep, who identifies as Vietnamese American and is a senior at Harvard, is
prepared to provide testimony on: (a) How his experience as a Vietnamese immigrant
in California intimately impacted his experiences prior to college; (b) How his ethnoracial identity was an integral part of both his application and interview for Harvard;
(c) How his review of his application file indicated Harvard appreciated his
perspective as a Vietnamese immigrant experiencing language barriers; (d) How his

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SAT scores and grades did not fully capture his potential; (e) How there is a need for
greater intra-racial diversity at Harvard of Asian Americans since lower-income
Asian subgroups (such as Vietnamese students) have notably lower representation on
campus; (f) How ethno-racial diversity at Harvard has greatly broadened his
understanding around critical academic and social issues; (g) How all students of
color have benefited from the advocacy of individual affinity groups, such as Black
student groups on campus; and (h) How greater racial diversity is needed at Harvard
to improve the racial climate for all students of color, including Asian Americans.
(See Dkt. 440, Ex. 1.8.)
3. Itzel Libertad Vasquez-Rodriguez, who identifies as an indigenous MexicanAmerican or “Xicana” and graduated from Harvard in 2017, is prepared to provide
testimony on: (a) How her experience as an indigenous Mexican-American shaped
her perspective and experiences both prior, during, and after college as she has
endured stereotypes and also derived strength from her ethno-racial identity; (b) How
in choosing colleges, it was important to her that Harvard considered ethno-racial
identity as part of the admissions process and had an ethnically diverse campus; (c)
How the representation of students of color on campus reduced her sense of racial
isolation, allowed her to thrive, and expanded her ability to understand and solve
issues both academically and socially; (d) How diversity and intra-racial diversity at
Harvard helped counteract assumptions and prejudice, although combatting
stereotypes is tiring work; (e) How she desired greater levels of racial diversity on
campus to reduce her sense of isolation; (f) How she experienced socioeconomic
differences among peers differently than racial diversity; and (g) How Harvard’s

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ethno-racial identity better prepared her to work in a diverse, global workforce. (See
Dkt. 440, Ex. 1.12.)
4. Jang Lee, who was born in Korea and is a senior at Harvard, is prepared to provide
testimony on: (a) How his experience as a Korean immigrant in a predominantly
white Texas suburb intimately impacted his experiences prior to college where he
grappled with stereotypes about Asians as academic overachievers; (b) How his
ethno-racial identity was integral to his application and interview for Harvard; (c)
How Harvard presented his first opportunity to live and learn alongside peers of
diverse ethno-racial backgrounds after growing up in a predominantly white suburb;
(d) How Harvard’s social justice initiatives and organizations are substantially driven
by students of color; (e) How Harvard’s ethno-racial diversity has enhanced his
academic studies in psychology which considers issues of racism, prejudice, and
social hierarchies; and (f) How greater racial diversity is needed at Harvard to
improve the racial climate for all students of color, including Asian Americans. (See
Dkt. 440, Ex. 1.4.)
5. Daniel Lu, who identifies as Chinese American and is a junior at Harvard, is
prepared to provide testimony on: (a) How both his race and class intimately
impacted his educational and extracurricular experiences prior to college; (b) How the
model minority myth essentializes Asians and obscures the discrimination that
underrepresented Asian ethnic groups experience; (c) How his ethno-racial identity
was an integral part of both his application and interview for Harvard; (d) How ethnoracial diversity on Harvard’s campus has benefitted him by enhancing learning
opportunities through extracurricular activities driven by students of color and

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motivated him to be more interested in activism; and (e) How greater racial diversity
is needed at Harvard to improve the racial climate for all students of color, including
Asian Americans. (See Dkt. 440, Ex. 1.3.)
6. Caroline Zheng, who identifies as Chinese American and is a senior at Harvard, is
prepared to provide testimony on: (a) How Harvard presented her an opportunity to
live and learn alongside peers of diverse ethno-racial backgrounds after growing up in
a predominantly white suburb; (b) How ethno-racial diversity on Harvard’s campus
benefitted her by exposing her to different viewpoints and provided meaningful
opportunities for her to confront her own prejudices and privilege; (c) How holistic
admissions creates a more enriching educational environment for all students by
admitting students who may not have had the resources to invest in test prep classes
and extracurricular activities but who are equally, if not more, qualified to be at
Harvard; and (d) How greater racial diversity is needed at Harvard to improve the
racial climate for all students of color, including Asian Americans. (See Dkt. 440,
Ex. 1.9.)
7. Sarah Cole, who identifies as a Black American and graduated from Harvard College
in 2016 and Harvard Graduate School of Education in 2017, is prepared to provide
testimony on: (a) How her experience as a Black American shaped her perspective
and experiences both prior, during, and after college as she has endured stereotypes
and also derived strength from her ethno-racial identity; (b) How in choosing
colleges, it was important to her that Harvard considered ethno-racial identity as part
of the admissions process and had an ethnically diverse campus; (c) How challenging
an environment can be in which students of color feel isolated and marginalized; (d)

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How ethno-racial diversity at Harvard sharpens students’ critical thinking, develops
their capacity for empathy and regard for others, and prepares them to be change
agents; and (e) How greater racial diversity is needed at Harvard to improve the racial
climate for all students of color. (See Dkt. 440, Ex. 1.10.)
8. Fadhal Moore, who identifies as African-American and graduated from Harvard in
2015, is prepared to provide testimony on: (a) How both his race and class intimately
impacted his experiences prior to college and the race-based barriers he faced both in
and out of school; (b) How his SAT scores and grades did not fully capture his
potential; (c) How the representation of students of color on campus reduced his
sense of racial isolation, allowed him to thrive, and expanded his ability to understand
and solve issues both academically and socially; (d) How extracurricular activities
driven by students of color created vital spaces to express every part of his cultural
and intellectual identity; (e) How ethno-racial diversity at Harvard has greatly
broadened his understanding around critical academic and social issues; and (f) How
greater racial diversity is needed at Harvard to improve the racial climate for all
students of color. (See Dkt. 440, Ex. 1.11.)1
Students have conferred with the parties. SFFA opposed this Motion. To the extent that
Students seek to participate in the trial by proffering some of their student or alumni witnesses,
Harvard supports this Motion.

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If Students are allowed to participate at trial, Students’ only exhibits would be the applications
of the Students who testify and the exhibit at Dkt. 509, Ex. 1. Students are willing to provide
these documents to the parties if they agree to keep them confidential unless and until they are
used by Students at trial.

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Wherefore, Students respectfully request that the Court grant them the limited role in trial
to make opening and closing statements, present student declarant testimony, and cross-examine
SFFA’s expert witness Dr. Arcidiacono.
Respectfully Submitted,
/s/ Oren M. Sellstrom
Oren M. Sellstrom (BBO #569045)
LAWYERS’ COMMITTEE FOR CIVIL RIGHTS
AND ECONOMIC JUSTICE
61 Batterymarch Street, Fifth Floor
Boston, MA 02110
Tel: [phone]
[e-mail]
/s/ Genevieve Bonadies Torres
Genevieve Bonadies Torres (pro hac vice)
Kristen Clarke
Jon M. Greenbaum (pro hac vice)
Brenda Shum (pro hac vice)
LAWYERS’ COMMITTEE FOR CIVIL RIGHTS
UNDER LAW
1500 K Street, NW
Washington, DC 20005
Tel: [phone]
[e-mail]
/s/ Nicole K. Ochi
Nicole K. Ochi (pro hac vice)
ASIAN AMERICANS ADVANCING JUSTICE
1145 Wilshire Boulevards
Los Angeles, CA 90017
Tel: [phone]
[e-mail]
/s/ Lawrence Culleen
Lawrence Culleen (pro hac vice)
Nancy Perkins (pro hac vice)
Steven Mayer (pro hac vice)
Emma Dinan (pro hac vice)
ARNOLD & PORTER KAYE SCHOLER LLP
601 Massachusetts Ave., NW
Washington, DC 20001

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Tel: [phone]
[e-mail]
Dated: August 31, 2018

COUNSEL FOR AMICI CURIAE

CERTIFICATE OF SERVICE
In accordance with Local Rule 5.2(b), I hereby certify that this document filed through
the ECF system on August 31, 2018 will be sent electronically to the registered participants as
identified on the Notice of Electronic Filing.
/s/ Lawrence Cullen
Lawrence Culleen

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