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

• Decision Date: 30 September 2019
• Docket Number: Civil Action No. 14-cv-14176-ADB
• Citation: 397 F.Supp.3d 126
• 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

397 F.Supp.3d 126

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 30, 2019

Adam K. Mortara, Pro Hac Vice, J. Scott McBride, Pro Hac Vice, Krista J. Perry, Pro Hac Vice, Bartlit Beck LLP, Chicago, IL, John Michael Connolly, Pro Hac Vice, Thomas R. McCarthy, Pro Hac Vice, William S. Consovoy, Pro Hac Vice, Consovoy McCarthy Park PLLC, Arlington, VA, John M. Hughes, Pro Hac Vice, Katherine L.I. Hacker, Pro Hac Vice, 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, Burns & Levinson LLP, Providence, RI, Patrick Strawbridge, Consovoy McCarthy PLLC, Boston, MA, for Plaintiff.

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

FINDINGS OF FACT AND CONCLUSIONS OF LAW

BURROUGHS, D.J.

Table of Contents

I. INTRODUCTION...131

II. PROCEDURAL HISTORY...132

III. FINDINGS OF FACT: DIVERSITY, ADMISSIONS PROCESS, AND LITIGATION...133

A. Diversity at Harvard...133

1. Harvard's Interest in Diversity...133

2. Admissions Office's Efforts to Obtain a Diverse Applicant Pool...134

B. The Admissions Process...136

1. The Application...136

2. Alumni and Staff Interviews...137

3. Application Review Process...138

i. Admissions Office and Personnel...138

ii. Reading Procedures...139

iii. Committee Meetings and Admissions Decisions...142

4. Harvard's Use of Race in Admissions...145

C. Prelude to this Lawsuit...147

1. The Unz Article...147

2. Analysis by Office of Institutional Research...148

i. Mark Hansen's Admissions Models...148

ii. Low-Income Admissions Models...149

3. The Ryan Committee...151

4. The Khurana Committee...152

5. The Smith Committee...153

IV. FINDINGS OF FACT: NON-STATISTICAL EVIDENCE OF DISCRIMINATION...153

A. Sparse Country...153

B. The OCR Report...154

C. More Recent Allegations of Stereotyping and Bias...156

V. FINDINGS OF FACT: STATISTICAL ANALYSIS...158

A. Sources of Statistical Evidence...158

B. Admission Rates and Ratings by Race...160

C. Descriptive Statistics...162

1. Professor Card's Multidimensionality Analysis...163

2. Professor Arcidiacono's Academic Index Decile Analysis...164

D. Overview of Logistic Regression Models...165

E. Regression Models of School Support, Profile, and Overall Ratings...168

1. Relationship Between Race and School Support Ratings...168

2. Relationship Between Race and Personal Ratings...169

3. Regression Models of the Academic, Extracurricular, and Overall Ratings...171

F. Regression Models of Admissions Outcome...172

G. Absence of Statistical Support for Racial Balancing or Quotas...175

VI. FINDINGS OF FACT: RACE-NEUTRAL ALTERNATIVES...177

A. Eliminating Early Action...179

B. ALDC Tips...179

C. Augmenting Recruiting Efforts and Financial Aid...180

D. Increasing Diversity by Admitting More Transfer Students...180

E. Eliminating Standardized Testing...180

F. Place-Based Quotas...181

G. SFFA's Proposed Combinations of Various Race-Neutral Alternatives...181

VII. CONCLUSIONS OF LAW...183

A. Overview...183

B. SFFA Has Standing...183

C. The Supreme Court and Race-Conscious Admissions...184

D. Harvard's Admission Program and Strict Scrutiny...189

1. Compelling Interest...191

2. Narrowly Tailored...192

E. Count II: Harvard Does Not Engage in Racial Balancing...195

F. Count III: Harvard Uses Race as a Non-Mechanical Plus Factor...198

G. Count V: No Adequate, Workable, and Sufficient Fully Race-Neutral Alternatives Are Available...199

H. Count I: Harvard Does Not Intentionally Discriminate...201

VIII. CONCLUSION...204

I. INTRODUCTION

Plaintiff Students for Fair Admissions, Inc. ("SFFA") alleges that Defendant President and Fellows of Harvard College ("Harvard") discriminates against Asian American applicants in the undergraduate admissions process to Harvard College in violation of Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d et seq. ("Title VI").¹ Harvard acknowledges that its undergraduate admissions process considers race as one factor among many, but claims that its use of race is consistent with applicable law.

II. PROCEDURAL HISTORY

On November 17, 2014, SFFA initiated this lawsuit by filing a complaint that alleged that Harvard violates Title VI by intentionally discriminating against Asian Americans ("Count I"), using racial balancing ("Count II"), failing to use race merely as a "plus" factor in admissions decisions ("Court III"), failing to use race merely to fill the last "few places" in the incoming freshman class ("Count IV"), using race where there are available and workable race-neutral alternatives ("Count V"), and using race as a factor in admissions ("Count VI"). [ECF No. 1 ¶¶ 428–505]. SFFA seeks declaratory judgment, injunctive relief, attorneys' fees, and costs. Id. at 119. On February 18, 2015, Harvard filed its answer, in which it denied any liability. See [ECF No. 17]. On April 29, 2015, several prospective and then-current Harvard students filed a motion to intervene. [ECF No. 30]. Although the Court denied the motion to intervene, it allowed the students to participate in the action as amici curiae (friends of the court). Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 308 F.R.D. 39, 51–53 (D. Mass.), ECF No. 52, aff'd, 807 F.3d 472 (1st Cir. 2015).

On September 23, 2016, Harvard moved (1) to dismiss the lawsuit for lack of standing and (2) for judgment on the pleadings as to Counts IV and VI. [ECF Nos. 185, 187]. On June 2, 2017, the Court found that SFFA had the associational standing required to pursue this litigation, because it was an organization whose membership included Asian Americans who had applied to Harvard, been denied admission, and were prepared to apply to transfer to Harvard. Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll. (Harvard Corp.), 261 F. Supp. 3d 99, 111 (D. Mass. 2017), ECF No. 324. On the same date, the Court granted Harvard's motion for judgment on the pleadings and dismissed Counts IV and VI, namely the failure to use race only to fill the last few places in the incoming freshman class and the use of race as a factor in admissions. Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll. (Harvard Corp.), No. 14-CV-14176-ADB, 2017 WL 2407254, at *1 (D. Mass. June 2, 2017), ECF No. 325.²

Following the conclusion of discovery, on June 15, 2018, the parties filed cross motions for summary judgment on the four remaining counts, [ECF Nos. 412, 417], which the Court denied on September 28, 2018. Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 346 F. Supp. 3d 174, 180 (D. Mass. 2018), ECF No. 566. The case proceeded to trial on Counts I (intentional discrimination), II (racial balancing), III (failure to use race merely as a "plus" factor), and V (race-neutral alternatives), and from October 15 through November 2, 2018, the Court heard testimony from eighteen current and former Harvard employees, four expert witnesses, and eight current or former Harvard College students who testified as amici curiae . On February 13, 2019, following the parties' submissions of proposed findings of fact and conclusions of law and responses to each other's respective submissions, see [ECF Nos. 619, 620], the Court heard final closing arguments.

The Court now makes the following findings of fact and conclusions of law in accordance with Federal Rule of Civil Procedure 52(a).

III. FINDINGS OF FACT: DIVERSITY, ADMISSIONS PROCESS, AND LITIGATION

A. Diversity at Harvard

1. Harvard's Interest in Diversity

It is somewhat axiomatic at this point that diversity of all sorts, including racial diversity, is an important aspect of education. See Brown v. Bd. of Educ., 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954).³ The evidence at trial was clear that a heterogeneous student body promotes a more robust academic environment with a greater depth and breadth of learning, encourages learning outside the classroom, and creates a richer sense of community. See [Oct. 19 Tr. 185:23–187:24; Oct. 23 Tr. 24:13-20, 31:2–34:11, 59:8–14; Oct. 30 Tr. 27:20–28:8]. The benefits of a diverse student body are also likely to be reflected by the accomplishments of graduates and improved faculty scholarship following exposure to varying perspectives. See [Oct. 30 Tr. 28:9–30:11].

Harvard College's mission, as articulated in its mission statement, is "to educate the citizens and citizen-leaders for our society" and it seeks to accomplish this "through ... the transformative power of a liberal arts and sciences education." [DX109 at 1].⁴ In aid of realizing its mission, Harvard values and pursues many kinds of diversity within its classes, including different academic interests, belief systems, political views, geographic origins, family circumstances, and racial identities. See [Oct. 17 Tr. 182:17–183:7; Oct. 23 Tr. 24:13–20]. This interest in diversity and the wide-ranging benefits of diversity were echoed by all of the Harvard admissions officers, faculty, students, and alumni that testified at trial. SFFA does not contest the importance of diversity in education, but argues that Harvard's emphasis on racial diversity is too narrow and that the full benefits of diversity can be better achieved by placing more emphasis on economic diversity. See [ECF No. 620 ¶¶ 216, 231].

Consistent with Harvard's view of the benefits of diversity in and out of the classroom, Harvard tries to...