United States District Court, D. Massachusetts
STUDENTS FOR FAIR ADMISSIONS, INC. Plaintiff,
PRESIDENT AND FELLOWS OF HARVARD COLLEGE HARVARD CORPORATION, Defendant.
MEMORANDUM AND ORDER ON CROSS-MOTIONS FOR SUMMARY
ALLISON D. BURROUGHS U.S. DISTRICT JUDGE.
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. [ECF No. 405].
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.
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].
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.
as otherwise noted, the following facts are not in dispute.
Harvard's Admissions Office
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. 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.
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. SFFA Facts ¶¶ 6, 13-14.
Applying to Harvard
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
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.
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
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.
First Reader and Docket Chair
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). 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.
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.
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.”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.
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.
Subcommittee and Full Committee Meetings
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
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. 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. 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].
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.