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

Filing 546

MOTION in Limine by Students for Fair Admissions, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Hughes, John)

Exhibit 5

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
BOSTON DIVISION

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STUDENTS FOR FAIR ADMISSIONS,
INC.,

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Plaintiff,
Civil Action No.
1:14-cv-14176

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vs.

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PRESIDENT AND FELLOWS OF HARVARD
COLLEGE (HARVARD CORPORATION);
and THE HONORABLE AND REVEREND
THE BOARD OF OVERSEERS,

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Defendants.
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-------------------------------x
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- HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY 13
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DEPOSITION OF RAKESH KHURANA, a

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witness called by the Plaintiff, taken

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pursuant to the applicable provisions of

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the Federal Rules of Civil Procedure,

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before James A. Scally, RMR, CRR, a

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Notary Public in and for the Commonwealth

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of Massachusetts, at the offices of

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WilmerHale, 60 State Street, Boston,

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Massachusetts, on Thursday, April 27,

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2017, commencing at 9:06 a.m.

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interests, how they want to contribute to each

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other's learnings, and their desire to contribute to

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society's well-being in consideration of their

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applications to Harvard.

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Q.

Would you favor increasing the weight given

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to legacy admissions if it resulted in decreasing the

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racial diversity of the student body on campus?

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MS. ELLSWORTH:
A.

Objection.

I would prefer having as diverse a group of

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students who come from a variety of different

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backgrounds and interests and want to study a variety

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of different subjects, learn from each other, hear

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each other, understand each other, and who share a

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desire to contribute to the well-being of society.

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Q.

So would you favor increasing the weight of

legacy if it would decrease racial diversity?

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MS. ELLSWORTH:
A.

Objection.

I would need to know much more about the

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variety of different characteristics of those

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students that you're talking about.

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Q.

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diversity?

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Which students, the legacies or the racial

MS. ELLSWORTH:
A.

Both of them.

Objection.

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Q.

You can't answer that question?

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A.

I can't answer that question.

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Q.

Have you ever heard anyone at Harvard raise

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concern that its admissions process disadvantages

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Asian-Americans?

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A.

Yes.

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Q.

Who has raised that concern with you?

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MS. ELLSWORTH:

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Remind the witness

not to disclose the contents of

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communications with counsel or advice

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of counsel.

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question without doing so, you may.

If you can answer the

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A.

I've heard it discussed as a general topic.

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Q.

By who?

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A.

I can't recall specific people.

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Q.

Have you ever reviewed any analysis by the

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university's Office of Institutional Research as to

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the extent to which Asian-Americans are disadvantaged

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by the admissions process?

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MS. ELLSWORTH:

Objection.

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A.

I may have.

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Q.

And what are you thinking of when you say you

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may have?
A.

I see a variety and saw a variety of

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different reports when I became dean.

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MS. ELLSWORTH:

If you're going to

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move into a document, can we take a

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break?

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over an hour.

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We've been going for a little

MR. STRAWBRIDGE:

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Yeah, we can

take a break.

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(Recess:

4:34 p.m. to 4:41 p.m.)

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(Exhibit 10, February 2013

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PowerPoint presentation Bates stamped

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HARV00031773 through 31858, marked.)

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BY MR. STRAWBRIDGE:
Q.

I've handed you a document that's been marked

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as Exhibit 10.

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you recognize that document?

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a particular part of the pool -- or the document.

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I'm sorry.

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suffix of 804 through 810.

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Can you look through that and see if
And I can direct you to

It's starting on the page with the Bates
(Pause.)

Have you had a chance to look at that?

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Specifically to 804 to 810, did you have a chance to

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look at that?

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A.

I did.

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Q.

Okay.

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Before we broke, I asked you whether

you had reviewed any reports from the Office of

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Institutional Research about whether Harvard's

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admissions process affects or disadvantages Asians.

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Do you recall ever seeing this document?

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A.

I may have seen some of these tables, but I

can't say for certain that I saw this document.
Q.

What do you recall about seeing some of these

tables?
A.

That there was an examination of looking at

the admittance of students.
Q.

And which tables in particular do you think

you've seen before?

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A.

I can't tell you specifically.

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Q.

Okay.

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examination?

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And what do you remember about this

MS. ELLSWORTH:
A.

Objection.

Just that I didn't think that this was --

analysis was done appropriately.

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Q.

And why didn't you think that?

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A.

There's limitations, a lot of limitations to

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doing what are called fitted models like this.
Q.

Okay.

Let's back up a little bit.

When do

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you specifically remember seeing some of these

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tables?

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MS. ELLSWORTH:

Objection.

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A.

I believe that as I familiarized myself with

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the office of the dean of Harvard College, that I

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read a variety of different analyses and perused

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several reports.

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Q.

And so is it your testimony that you think

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you saw these documents, you know, they were made

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available to you in the office of the dean?

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A.

I can't say about these specific documents,

but tables like this.
Q.

Do you -- do you specifically remember seeing

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documents that analyzed what the effect of various

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admissions variables were on Asian-Americans in the

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admissions pool?

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A.

I think so.

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Q.

And specifically with respect to what appears

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on page 810, or the page with the Bates suffix of

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810, there's a question 3 that says, "Is there bias

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against Asians in college admissions?"

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Do you see that?

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A.

Yes.

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Q.

Okay.

And do you remember reviewing some

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presentation containing these tables or other similar

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information that was addressing whether there was

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bias against Asians in college admissions?

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MS. ELLSWORTH:

Objection.

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A.

I don't remember.

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Q.

You don't remember that?

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A.

I don't remember that.

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Q.

Do you remember in what -- were these on a

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share drive, or were they emailed to you?

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remember how you were reviewing the tables that you

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think look like the tables that are in this

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presentation?

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MS. ELLSWORTH:
A.

Do you

Objection.

I think there were a variety of reports in my

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office, and I just remember reading them and going

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through them.

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Q.

Like in a hard copy binder?

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A.

In a hard copy.

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I can't say how -- whether

they were in a binder.
Q.

Okay.

Do you remember discussing those

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tables or that analysis with anybody else in the

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office?

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A.

I don't recall discussing them with anyone

else in the office.
Q.

Do you know whether you discussed them with

the interim dean who preceded you?
A.

I don't believe I discussed them.

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Q.

Do you recall whether you ever discussed them

with Dean Hammonds?
A.

I don't believe I discussed this with Dean

Hammonds.
Q.

And you can't remember discussing it with

anybody?
A.

I don't remember discussing these with

anybody.
Q.

When you say there are a lot of problems with

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a fit model such as these, what specific problems, if

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any, do you recall thinking about when you looked at

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tables like the ones in this report?

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A.

That models like this violate statistical and

hypothesis testing.
Q.

Did you discuss any of that with people at

the Office of Institutional Research?

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A.

No.

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Q.

Do you think that the people at the Office of

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Institutional Research understand statistical

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modelling?

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MS. ELLSWORTH:

Objection.

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A.

I don't know.

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Q.

Do you assume that the people who do the

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institutional research for the college and for the

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university have some background in statistical

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modelling?

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MS. ELLSWORTH:

Objection.

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A.

I do.

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Q.

Do you assume them to be competent at their

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jobs?

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A.

I do.

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Q.

So you read these things, and it occurred to

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you that you don't think this was a reliable

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analysis, or you read something like this, you're not

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sure if it was this report or something like this,

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and you didn't talk to or otherwise engage with

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anybody on it?

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A.

No.

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Q.

And the only time you remember seeing

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something like this was just sitting in your office

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catching yourself up on the things that the dean has

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access to?

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MS. ELLSWORTH:

Objection.

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A.

I can't remember if that was the setting.

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Q.

Okay.

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Do you have any idea why these were

prepared?

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A.

I don't.

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Q.

Did you take any steps to find out why they

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were prepared?

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A.

I did not.

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Q.

Did you take any steps to determine what a

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proper analysis would yield with respect to this

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information?

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A.

No.

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Q.

Did you -- have you since seen any analysis

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from the Office of Institutional Research at the

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university or the college addressing the question as

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to whether there's bias in the college admissions

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process against Asians?

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MS. ELLSWORTH:

I'll just remind

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the witness to answer the question only

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to the extend you can do so without

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disclosing communications of counsel or

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advice of counsel.

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A.

I'll be following the advice of counsel.

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Q.

Okay.

So other than in communications with

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counsel, you haven't seen any other Office of

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Institutional Research products like this except for

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this time you were in your office getting up to

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speed?

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MS. ELLSWORTH:
A.

I don't think I have.

Objection.

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Q.

And when you say -- I just want to make sure

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I understand.

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there were problems with this type of analysis when

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you picked this thing up and looked at it; correct?

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A.

Do you remember -- you remember that

I remember thinking I wouldn't use this kind

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of -- I would have not approached this question this

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way.

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Q.

Okay.

trying to determine whether an admissions process is
biased against Asian-Americans?

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How would you approach the question of

MS. ELLSWORTH:
A.

Objection.

I didn't -- what I was -- that's not the

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question I would have been asking.

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question I thought was being asked.

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Q.

That's not the

But why -- what question did you think was

being asked?
A.

How do you -- how does -- you build up a

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model to understand whether the process we used

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produces the class that we think we need and would

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want and would most benefit from a Harvard College

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education.

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Q.

Do you think Harvard should take steps to

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ensure that its admissions process is not

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disadvantaging Asian-Americans as a group?

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MS. ELLSWORTH:
A.

Objection.

I think Harvard College should take an

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admissions process that considers each student's

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background, experiences, academic aspirations,

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extracurriculars, contributions to their community,

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the benefits they would derive from a four-year

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residential experience, and their desire to

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contribute to the well-being of society in evaluating

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each application.

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Q.

Do you think that the Harvard admissions

process disadvantages Asian-Americans?

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A.

I don't know.

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Q.

You don't know?

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A.

I don't know.

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Q.

If it did, would it be something that would

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concern you?

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MS. ELLSWORTH:
A.

Objection.

I would be concerned if Harvard's admissions

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process disadvantaged students along a variety of

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different characteristics.

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Q.

Including race or ethnicity?

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A.

Including and not limited to race and

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ethnicity.

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Q.

Other than the general conversations you

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mentioned earlier, do you recall anyone else ever

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raising with you concerns that Asian-Americans were

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disadvantaged by the Harvard admissions process?

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A.

I can't recall.

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Q.

Do you know whether any student groups at

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Harvard have ever raised concerns about whether

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Harvard's admissions process disadvantages Asian-

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Americans?

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A.

I don't know.

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Q.

You don't know if they have or not?

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A.

I don't know what you mean by "student

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groups."
Q.

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Does Harvard have student affinity groups?
MS. ELLSWORTH:

Objection.

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A.

Harvard -- yes.

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Q.

Are some of those student affinity groups

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associated with nationalities or ethnicities?
A.

Some of those student groups have missions

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that advance the cultural interest of a variety of

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different identities.

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Q.

And do you recall any of those student groups

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raising concerns about whether the admissions process

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at Harvard disadvantages Asian-Americans?

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MS. ELLSWORTH:

Objection.

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COMMONWEALTH OF MASSACHUSETTS

SUFFOLK, SS.

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I, JAMES A. SCALLY, RMR, CRR, a
Certified Shorthand Reporter and Notary Public duly
commissioned and qualified in and for the
Commonwealth of Massachusetts, do hereby certify that
there came before me on the 27th day of April, 2017,
at 9:06 a.m., the person hereinbefore named, RAKESH
KHURANA, who provided satisfactory evidence of
identification as prescribed by Executive Order 455
(03-13) issued by the Governor of the Commonwealth of
Massachusetts, was by me duly sworn to testify to the
truth and nothing but the truth of his knowledge
concerning the matters in controversy in this cause;
that he was thereupon examined upon his oath, and his
examination reduced to typewriting under my
direction; and that this is a true record of the
testimony given by the witness to the best of my
ability.
I further certify that I am neither
attorney or counsel for, nor related to or employed
by, any of the parties to the action in which this
deposition is taken, and further, that I am not a
relative or employee of any attorney or counsel
employed by the parties hereto or financially
interested in the action.

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My Commission Expires:

April 8, 2022

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_________________________
James A. Scally, RMR, CRR
CSR/Notary Public