Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll.

• Decision Date: 28 September 2018
• Docket Number: Civil Action No. 14-cv-14176-ADB
• Citation: 346 F.Supp.3d 174
• Parties: STUDENTS FOR FAIR ADMISSIONS, INC., Plaintiff, v. PRESIDENT AND FELLOWS OF HARVARD COLLEGE (HARVARD CORPORATION), Defendant.
• Court: U.S. District Court — District of Massachusetts

346 F.Supp.3d 174

STUDENTS FOR FAIR ADMISSIONS, INC., Plaintiff,

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

Civil Action No. 14-cv-14176-ADB

United States District Court, D. Massachusetts.

Signed September 28, 2018

Adam K. Mortara, J. Scott McBride, Krista J. Perry, Pro Hac Vice, Barlit Beck LLP, Chicago, IL, John Michael Connolly, Thomas R. McCarthy, William S. Consovoy, Pro Hac Vice, Consovoy McCarthy Park PLLC, Arlington, VA, John M. Hughes, Katherine L.I. Hacker, Meg E. Fasulo, Pro Hac Vice, Bartlit Beck LLP, Denver, CO, Michael H. Park, Pro Hac Vice, Consovoy McCarthy Park PLLC, New York, NY, Paul M. Sanford, Benjamin C. Caldwell, Burns & Levinson LLP, Providence, RI, Patrick Strawbridge, Consovoy McCarthy Park PLLC, Boston, MA, for Plaintiff.

Brittany Amadi, Daniel Winik, Danielle Conley, Debo P. Adegbile, Paul R.Q. Wolfson, Seth P. Waxman, Pro Hac Vice, Wilmer Cutler Pickering Hale and Dorr LLP, Washington, DC, William F. Lee, Andrew S. Dulberg, Elizabeth C. Mooney, Felicia H. Ellsworth, Sarah R. Frazier, Wilmer Cutler Pickering Hale and Dorr LLP, Joseph J. Mueller, Wilmer Hale LLP, Boston, MA, Ara B. Gershengorn, Harvard Office of the General Counsel, Cambridge, MA, for Defendant.

MEMORANDUM AND ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

ALLISON D. BURROUGHS, U.S. DISTRICT JUDGE

This case involves allegations that Defendant President and Fellows of Harvard College ("Harvard") maintains an undergraduate admissions program that discriminates against Asian Americans in violation of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq. ("Title VI"). The remaining claims asserted by Plaintiff Students for Fair Admissions Inc. ("SFFA") are: "Intentional Discrimination against Asian Americans" (Count I); "Racial Balancing" (Count II); "Failure to Use Race Merely as a ‘Plus’ Factor in Admissions Decisions" (Count III); and "Race-Neutral Alternatives" (Count V). [ECF Nos. 1, 325]. On June 15, 2018, the parties filed cross-motions for summary judgment on all counts. [ECF Nos. 412, 417]. The motions were opposed on July 27 and July 30, 2018 [ECF Nos. 435, 449], and reply briefs were filed on August 27 and August 30, 2018. [ECF Nos. 484, 510]. Several interested non-parties have appeared as amici curiae in support of or in opposition to the summary judgment motions. A bench trial on the issue of liability is scheduled to begin on October 15, 2018.¹ [ECF No. 405].

For the reasons stated herein, the cross-motions for summary judgment are denied on all counts without prejudice to the parties reasserting their arguments at trial, consistent with this order. The Court will also further consider the arguments raised in the amicus briefs at trial.²

I. BACKGROUND

In February and April 2018, prior to the June 15 deadline for filing dispositive motions, the Court suggested to the parties that since the remaining claims appeared to require a fact-intensive inquiry, as well as the evaluation of conflicting expert testimony, summary judgment could be a time-consuming and duplicative effort for the parties and the Court, and perhaps not warranted in light of the upcoming bench trial. [ECF Nos. 384, 402]. Although Harvard agreed, SFFA contended that some or all of the claims could be resolved on summary judgment, while acknowledging that it would be reasonable for the Court to take any dispositive motions under advisement and proceed to trial. [ECF No. 384]. See Grutter v. Bollinger, 539 U.S. 306, 317–18, 123 S.Ct. 2325, 156 L.Ed.2d 304 (2003) (district court took cross-motions for summary judgment under advisement and conducted 15-day bench trial before ruling on the motions). The Court ultimately permitted the parties to file dispositive motions [ECF No. 387], but cautioned that if the motions presented material factual disputes, the parties should expect a summary order of denial. [ECF No. 402].

Both parties have now moved for summary judgment on all counts. SFFA submitted in support of its motion a 900-paragraph statement of allegedly undisputed facts [ECF No. 414-2] ("SFFA Facts"), approximately 700 of which are at least partially in dispute [ECF No. 437] ("Harvard Response"). SFFA disputes [ECF No. 452] ("SFFA Response") approximately half of Harvard's 278-paragraphs of allegedly undisputed facts [ECF No. 420] ("Harvard Facts"), and nearly all of Harvard's 45-paragraph supplemental statement of material facts that allegedly preclude summary judgment for SFFA. [ECF Nos. 437, 511]. Further, the parties' expert witnesses—David Card [ECF Nos. 419-33, 419-37], Ruth Simmons [ECF Nos. 419-28, 419-34], Peter S. Arcidiacono [ECF Nos. 415-1, 415-2, 415-3], and Richard D. Kahlenberg [ECF Nos. 416-1, 416-2, 416-3]—have each produced multiple expert reports that raise a plethora of conflicting opinions on key substantive issues in the case.

Except as otherwise noted, the following facts are not in dispute.

A. Harvard's Admissions Office

Located in Cambridge, Massachusetts, Harvard is a liberal arts college and the oldest institution of higher learning in the United States. SFFA Facts ¶ 4. It receives federal financial assistance and is therefore subject to Title VI. SFFA Facts ¶ 9. For the Class of 2019, more than 37,000 people applied for undergraduate admission to Harvard, 26,000 of whom were domestic applicants.³ Harvard Facts ¶¶ 1, 5. Over 8,000 domestic applicants had perfect converted GPAs and over 5,000 domestic applicants achieved a perfect math or verbal SAT score. Harvard Facts ¶¶ 6–8. Harvard offered admission to 2,003 applicants for the Class of 2019. Harvard Facts ¶ 2.

The Office of Admissions and Financial Aid at Harvard ("Admissions Office") is tasked with making admissions decisions. SFFA Facts ¶ 6. This office employs approximately 40 admissions officers who, under the guidance of the Admissions Office's leadership, handle most of the day-to-day operations of the admissions program.⁴ SFFA Facts ¶¶ 6, 13–14.

B. Applying to Harvard

Students apply to Harvard either through the Early Action program, which typically has a November 1 deadline, or through the Regular Decision program, which typically has a January 1 deadline, but the same procedures for reviewing applications generally apply regardless of whether a student has applied for Early Action or Regular Decision. Harvard Facts ¶¶ 11–12. Students apply by submitting a Common Application, Universal College Application, or Coalition Application. Harvard Facts ¶ 13. They must complete a short supplement to indicate their interest and the strength of that interest in an academic field, a career, and extracurricular activities. Harvard Facts ¶ 14. Applicants may submit scholarly work, artwork, or recordings of music or dance performances. Harvard Facts ¶ 15. The Common Application, Universal College Application, and Coalition Application permit all students to identify their race (and students may choose more than one), but Harvard does not require them to do so. Harvard Facts ¶¶ 16–18, 20. Applicants may also include information about their race in other parts of the application, such as in their personal essay. Harvard Facts ¶ 17. After submitting an application, most students are interviewed in person by a Harvard alumnus who reports his or her feedback to the Admissions Office. Harvard Facts ¶ 21. In sum, a complete application file typically includes:

1. The applicant's name, age, sex, address, citizenship, place of birth, and race (if disclosed);

2. Information about the applicant's family;

3. The applicant's standardized test scores;4. The applicant's high school transcripts and reported grade point average;

5. Information provided by the applicant's high school about the school itself, such as the number of students that attend college, the available courses, the percentage of students that receive free or reduced-price lunch, and the economic and demographic profile of the community;

6. One or more essays written by the applicant;

7. A letter from the applicant's high school guidance counselor;

8. At least two letters of recommendation from high school teachers, and often additional recommendation letters from teachers, supervisors, or others;

9. In many cases, a detailed, multi-page evaluation from a Harvard alumni interviewer; and

10. The applicant's answers to questions about his or her intended academic concentration, extracurricular and athletic participation, and post-college career.

Harvard Facts ¶ 22.

C. Application Review

Harvard organizes its review of application files into approximately twenty (eighteen domestic and two international) geographical regions referred to as "dockets," which vary widely in geographic scope but cover a roughly similar number of applications. Harvard Facts ¶¶ 36–37; SFFA Facts ¶¶ 65–66. A subcommittee of admissions officers—usually three to six "first readers" that are assigned to specific areas within the docket and a senior admissions officer serving as the "docket chair"—is responsible for the initial evaluation of all candidates within a particular docket. Harvard Facts ¶¶ 38–40.

The written guidelines as to how admissions officers should review application files are contained in the Admissions Office's "Reading Procedures," which are distributed to the admissions officers each year. SFFA Facts ¶ 68. The Reading Procedures set forth, among other things, criteria for assigning numerical ratings to each application. SFFA Facts ¶ 69. Harvard also conducts an in-person orientation and training program for all newly hired admissions officers. SFFA Facts ¶ 70. After participating in orientation, new admissions officers are typically required to share the first 50 to 100 application files that they read with a more senior admissions officer who provides feedback on the ratings assigned by the new admissions officer. Harvard Facts ¶ 30; SFFA Facts ¶ 71. The work of new admissions officers is closely monitored by more senior admissions officers during their first few years of employment. SFFA Facts ¶ 71.

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