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Students for Fair Admissions, Inc. v. President And Fellows of Harvard College

United States District Court, D. Massachusetts

September 28, 2018

STUDENTS FOR FAIR ADMISSIONS, INC. Plaintiff,
v.
PRESIDENT AND FELLOWS OF HARVARD COLLEGE HARVARD CORPORATION, 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 (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.

         1. First Reader and Docket Chair

         To begin the application evaluation process, a first reader reviews the application files from the high schools in his or her area within the docket. Harvard Facts ¶ 41. First readers conduct the review using a “summary sheet, ” which is a two to three-page document that is prepopulated with information from a particular student's application, including that student's high school, citizenship, test scores, GPA, class rank, and race. SFFA Facts ¶ 74. The summary sheet also contains three blank sections that may be completed by the first reader: “Ratings, ” “Notes, ” and “Reader Comments.” SFFA Facts ¶ 74. The Ratings section contains fourteen boxes representing the following categories in which an applicant may receive numerical scores: overall, academic, extracurricular, athletic, personal, teacher recommendation (up to four possible), a school support recommendation, two staff interview ratings (overall and personal), and two alumni interview ratings (overall and personal).[5] SFFA Facts ¶ 75. The Notes section may be used to briefly summarize the application or other pertinent information, and the Comments section may be used to provide a more extensive discussion of the application. SFFA Facts ¶¶ 76-77.

         After reviewing an application file, the first reader assigns academic, extracurricular, athletic, personal, and overall ratings to the applicant, and rates the strength of the teacher and guidance counselor letters of recommendation. Harvard Facts ¶¶ 43-45. The numerical ratings generally range between 1 and 4 in all categories, with 1 being the best rating. Harvard Facts ¶¶ 46-47. Admissions officers may add a plus or a minus to a numerical rating of 2 or 3; a 2 is better than a 2 which is better than a 2-. Harvard Facts ¶ 48; SFFA Response ¶ 48.

         The academic rating summarizes the applicant's academic achievement and potential based on grades, test scores, letters of recommendation, academic prizes, and any submitted academic work. Harvard Facts ¶ 49. The extracurricular rating captures the strength of the applicant's involvement in activities during high school and his or her potential to contribute at Harvard outside of the classroom. Harvard Facts ¶ 53. The athletic rating takes into account the strength of the applicant's potential contributions to athletics at Harvard, as well as the applicant's athletic activity in high school. Harvard Facts ¶ 57. According to Harvard, the personal rating “summarizes the applicant's personal qualities based on all aspects of the application, including essays, letters of recommendation, the alumni interview report, personal and family hardship, and any other relevant information in the application, ” and admissions officers assign the personal rating based on their assessment of the applicant's “humor, sensitivity, grit, leadership, integrity, helpfulness, courage, kindness and many other qualities.”[6]Harvard Facts ¶¶ 59-60. The ratings for recommendations, referred to as “school support, ” are meant to evaluate the strength of counselor and teacher recommendations. Harvard Facts ¶ 62; SFFA Response ¶ 62. Finally, the overall rating is intended to summarize the strength of the application as a whole, although it is not determined by a formula and does not involve adding up the other ratings. Harvard Facts ¶¶ 64-65. Harvard instructs first readers to assign the overall rating by “stepping back and taking all the factors into account.” SFFA Facts ¶ 99. Admissions officers may consider race in assigning the overall rating, but are not supposed to consider race when assigning the academic, extracurricular, athletic, and personal ratings. Harvard Facts ¶ 119; SFFA Facts ¶ 214; Harvard Response ¶ 214.

         After the first reader completes his or her evaluation, the application file may be sent to the docket chair for further review. Harvard Facts ¶ 67. The docket chair may assign ratings in the same categories as the first reader and add written comments. Harvard Facts ¶¶ 68-69. The first reader and the docket chair's scores, as well as any comments from other readers, are reflected in the application file. Harvard Facts ¶ 70.

         2. Subcommittee and Full Committee Meetings

         After each application has been reviewed by a first reader, the subcommittees meet to further evaluate the applications in their dockets. SFFA Facts ¶ 113. The first reader of an application pending before the subcommittee summarizes the strengths and weaknesses of that applicant's candidacy. Harvard Facts ¶ 72. Subcommittee members then discuss the applicant and decide as a group what recommendation and level of support to convey to the full admissions committee regarding admission. Harvard Facts ¶¶ 73, 75. Dean Fitzsimmons also allegedly visits the subcommittee meetings to support applicants on the “Dean's Interest List, ” which is a list of applicants that may be of interest to Harvard. SFFA Facts ¶¶ 294-295; SFFA Response ¶ 73.

         After all of the subcommittees have decided which applications to recommend for admission, the full admissions committee (approximately 40 people) meets to make the final decisions on those applications.[8] Harvard Facts ¶ 76; SFFA Facts ¶ 125. The full committee includes, among others, all the admissions officers who read application files, as well as Dean Fitzsimmons, Director McGrath, and the Director of Financial Aid. Harvard Facts ¶¶ 77-78.[9] At a full committee meeting, the first reader of the application being discussed makes a presentation to the committee, typically emphasizing the applicant's strengths. Harvard Facts ¶ 79. After the discussion is complete, the full committee decides whether to admit, reject, or waitlist the candidate. Harvard Facts ¶ 80. In both the subcommittee and full committee meetings, each admissions officer has one vote, and a majority vote controls whether a student is admitted, waitlisted, or rejected. Harvard Facts ¶ 81; SFFA Facts ¶ 128. The subcommittee and full committee members can potentially consider race as a factor in deciding which candidates to recommend or vote to admit, deny, or waitlist. SFFA Facts ¶¶ 236, 250; Harvard Response ¶¶ 251, 264; [ECF No. 419-1 at 52-53].

         Near the end of the full committee meetings, Dean Fitzsimmons and Director McGrath confirm the final target number of admitted students and determine whether any applicants must be “lopped” or removed from the class of students on the “admit” list to reach that target. SFFA Facts ¶ 134; Harvard Response ¶ 134.

         3. Post-Ad ...


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