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

United States District Court, D. Massachusetts

September 30, 2019

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

          FINDINGS OF FACT AND CONCLUSIONS OF LAW

          ALLISON D. BURROUGHS U.S. DISTRICT JUDGE

         Table of Contents

         I. INTRODUCTION ....................................................................................................................... 4

         II. PROCEDURAL HISTORY ....................................................................................................... 4

         III. FINDINGS OF FACT: DIVERSITY, ADMISSIONS PROCESS, AND LITIGATION ........ 6

         A. Diversity at Harvard ............................................................................................................ 6

         1. Harvard's Interest in Diversity ..................................................................................... 6

         2. Admissions Office's Efforts to Obtain a Diverse Applicant Pool ................................ 8

         B. The Admissions Process ................................................................................................... 11

         1. The Application .......................................................................................................... 12

         2. Alumni and Staff Interviews ....................................................................................... 13

         3. Application Review Process ....................................................................................... 16

         i. Admissions Office and Personnel .............................................................. 16

         ii. Reading Procedures .................................................................................... 18

         iii. Committee Meetings and Admissions Decisions ....................................... 23

         4. Harvard's Use of Race in Admissions ........................................................................ 27

         C. Prelude to this Lawsuit ...................................................................................................... 31

         1. The Unz Article .......................................................................................................... 31

         2. Analysis by Office of Institutional Research .............................................................. 32

         i. Mark Hansen's Admissions Models ........................................................... 32

         ii. Low-Income Admissions Models .............................................................. 35

         3. The Ryan Committee .................................................................................................. 38

         4. The Khurana Committee ............................................................................................ 39

         5. The Smith Committee ................................................................................................. 40

         IV. FINDINGS OF FACT: NON-STATISTICAL EVIDENCE OF DISCRIMINATION .......... 41

         A. Sparse Country .................................................................................................................. 41

         B. The OCR Report ............................................................................................................... 43

         C. More Recent Allegations of Stereotyping and Bias .......................................................... 45

         V. FINDINGS OF FACT: STATISTICAL ANALYSIS .............................................................. 50

         A. Sources of Statistical Evidence ......................................................................................... 50

         B. Admission Rates and Ratings by Race ............................................................................. 53

         C. Descriptive Statistics ......................................................................................................... 57

         1. Professor Card's Multidimensionality Analysis ......................................................... 57

         2. Professor Arcidiacono's Academic Index Decile Analysis ........................................ 60

         D. Overview of Logistic Regression Models ......................................................................... 62

         E. Regression Models of School Support, Profile, and Overall Ratings ............................... 67

         1. Relationship Between Race and School Support Ratings .......................................... 67

         2. Relationship Between Race and Personal Ratings ..................................................... 68

         3. Regression Models of the Academic, Extracurricular, and Overall Ratings .............. 73

         F. Regression Models of Admissions Outcome .................................................................... 74

         G. Absence of Statistical Support for Racial Balancing or Quotas ....................................... 80

         VI. FINDINGS OF FACT: RACE-NEUTRAL ALTERNATIVES ............................................. 83

         A. Eliminating Early Action .................................................................................................. 85

         B. ALDC Tips ........................................................................................................................ 86

         C. Augmenting Recruiting Efforts and Financial Aid ........................................................... 87

         D. Increasing Diversity by Admitting More Transfer Students ............................................. 88

         E. Eliminating Standardized Testing ..................................................................................... 88

         F. Place-Based Quotas .......................................................................................................... 89

         G. SFFA's Proposed Combinations of Various Race-Neutral Alternatives .......................... 90

         VII. CONCLUSIONS OF LAW ................................................................................................... 92

         A. Overview ........................................................................................................................... 92

         B. SFFA Has Standing ........................................................................................................... 93

         C. The Supreme Court and Race-Conscious Admissions ..................................................... 94

         D. Harvard's Admission Program and Strict Scrutiny ........................................................ 102

         1. Compelling Interest .................................................................................................. 106

         2. Narrowly Tailored .................................................................................................... 107

         E. Count II: Harvard Does Not Engage in Racial Balancing ............................................. 112

         F. Count III: Harvard Uses Race as a Non-Mechanical Plus Factor ................................... 116

         G. Count V: No. Adequate, Workable, and Sufficient Fully Race-Neutral Alternatives Are Available ...................................................................................................................... 119

         H. Count I: Harvard Does Not Intentionally Discriminate .................................................. 122

         VIII. CONCLUSION .................................................................................................................. 127

         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 (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 create opportunities for interactions between students from different backgrounds and with different experiences to stimulate both academic and non-academic learning. [Oct. 23 Tr. 39:3-17; Oct. 30 Tr. 25:11-26:6, 27:20-28:8]. As examples, student living assignments, the available extracurricular opportunities, and Harvard's athletic programs are all intended to promote a sense of community and encourage exposure to diverse individuals and viewpoints. [Oct. 23 Tr. 39:18-41:23].

         Harvard has evaluated and affirmed its interest in diversity on multiple occasions. See [Oct. 17 Tr. 182:4-14]; see, e.g., [PX302; DX26; DX53].[5] Most recently, in 2015, Harvard established the Committee to Study the Importance of Student Body Diversity, which was chaired by Dean Rakesh Khurana[6] (the “Khurana Committee”). [Oct. 23 Tr. 34:12-22]. The Khurana Committee reached the credible and well-reasoned conclusion that the benefits of diversity at Harvard are “real and profound.” [PX302 at 17]. It endorsed Harvard's efforts to enroll a diverse student body to “enhance[] the education of [its] students of all races and backgrounds [to] prepare[] them to assume leadership roles in the increasingly pluralistic society into which they will graduate, ” achieve the “benefits that flow from [its] students' exposure to people of different backgrounds, races, and life experiences” by teaching students to engage across differences through immersion in a diverse community, and broaden the perspectives of teachers, to expand the reach of the curriculum and the range of scholarly interests. [PX302 at 1-2, 6]; see also [Oct. 23 Tr. 37:14-38:17]. The Khurana Committee “emphatically embrace[d] and reaffirm[ed] the University's long-held view that student body diversity - including racial diversity - is essential to [its] pedagogical objectives and institutional mission.” [PX302 at 22].

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

         Harvard's Office of Admissions and Financial Aid (the “Admissions Office”) is tasked with deciding which students to accept to the College and which to reject or waitlist. [Oct. 15 Tr. 64:1-70:8]. Deciding which applicants to admit is challenging given the overall talent and size of the applicant pool. For example, there were approximately 35, 000 applications for admission to the class of 2019. [Oct. 17 Tr. 184:2-4]. Harvard, targeting a class size of roughly 1, 600 students, admitted only about 2, 000 of those applicants, based on its expectation that approximately 80% of admitted students would matriculate. [Id. at 184:22-185:11].[7] Among the applicants for that class, approximately 2, 700 had a perfect verbal SAT score, 3, 400 had a perfect math SAT score, and more than 8, 000 had perfect GPAs. [Id. at 184:14-21]. Clearly, given the size and strength of its applicant pool, Harvard cannot admit every applicant with exceptional academic credentials. To admit every applicant with a perfect GPA, Harvard would need to expand its class size by approximately 400% and then reject every applicant with an imperfect GPA without regard to their athletic, extracurricular, and other academic achievements, or their life experiences. Because academic excellence is necessary but not alone sufficient for admission to Harvard College, the Admissions Office seeks to attract applicants who are exceptional across multiple dimensions or who demonstrate a truly unusual potential for scholarship through more than just standardized test scores or high school grades. [Id. at 181:12-183:7].

         To help attract exceptionally strong and diverse annual applicant pools, Harvard engages in extensive and multifaceted outreach efforts. Each year, roughly 100, 000 students make it onto Harvard's “search list” through data, including test scores, that the college purchases from ACT[8] which administers the ACT, and the College Board, which administers the PSAT and the SAT. [Oct. 15 Tr. 130:2-131:1; Oct. 17 Tr. 146:2-16]. High school students who make the search list receive a letter that encourages them to consider Harvard and may also receive follow-up communications. See [Oct. 15 Tr. 131:5-134:16; Oct. 17 Tr. 146:3-12; PX55]. Harvard also uses the search list to target students as part of its extensive in-person recruiting efforts, which includes Harvard admissions officers travelling to over 100 locations across the United States to speak with potential applicants and encourage them to consider Harvard. [Oct. 15 Tr. 131:13- 20; Oct. 17 Tr. 146:7-12, 179:8-21]. The search list is also sent to Harvard's “schools committee, ” which is comprised of more than 10, 000 alumni who help recruit and interview applicants and help persuade admitted students to attend Harvard. [Oct. 15 Tr. 131:21-132:7].

         In addition to recruiting students based largely on test scores, Harvard places particular emphasis on communicating with potential low-income and minority applicants whose academic potential might not be fully reflected in their scores. Since the 1970s, Harvard has recruited minority students, including Asian Americans, through its Undergraduate Minority Recruitment Program (“UMRP”). [Oct. 24 Tr. 95:15-21]. The UMRP writes letters, calls, and sends current Harvard undergraduates to their hometowns to speak with prospective applicants. [Id. at 95:12- 102:3]. The program, led by a full-time director and an assistant director, employs between two and ten Harvard students for most of the year, with twenty-five to thirty students working for the program during its peak season. [Id. at 201:1-204:22].

         Despite these efforts, African American and Hispanic applicants remain a relatively modest portion of Harvard's applicant pool, together accounting for only about 20% of domestic applicants to Harvard each year, even though those groups make up slightly more than 30% of the population of the United States. See [PX623; DX713]; U.S. Census Bureau, QuickFacts, Census.gov, https://www.census.gov/quickfacts/fact/table/US/RHI225218. In contrast, Asian American high school students have accounted for approximately 22% of total applicants in recent years, although Asian Americans make up less than 6% of the national population. See [DX713]; U.S. Census Bureau, QuickFacts, Census.gov, https://www.census.gov/quickfacts/fact/table/US/RHI225218.

         Harvard's recruiting efforts also target low-income and first-generation college students irrespective of racial identity through a recruiting program that operates in conjunction with the Harvard Financial Aid Initiative (“HFAI”). Harvard's financial aid program guarantees full funding of a Harvard education for students from families earning $65, 000 or less per year and also caps contributions at 10% of income for families making up to $150, 000 per year. [Oct. 24 Tr. 102:10-104:19; PX316 at 6]. Harvard, through the HFAI recruitment program, employs students who return to their hometowns and visit high schools to talk about the affordability of Harvard and other colleges with need-blind admissions programs. [Oct. 24 Tr. 144:1-22]. Today, more than half of Harvard students receive need-based aid. [Id. at 150:3-6].

         B. The Admissions Process

         Several Harvard admissions officers testified generally about reviewing application files as well as about their review of specific files. The Court credits this testimony. They each described a time-consuming, whole-person review process where every applicant is evaluated as a unique individual. See, e.g., [Oct. 17 Tr. 205:6-223:10; Oct. 24 Tr. 174:19-175:23]; see also [DD1].[9] Admissions officers attempt to make collective judgments about each applicant's personality, intellectual curiosity, character, intelligence, perspective, and skillset and to evaluate each applicant's accomplishments in the context of his or her personal and socioeconomic circumstances, all with the aim of making admissions decisions based on a more complete understanding of an applicant's potential than can be achieved by relying solely on objective criteria. [Oct. 16 Tr. 16:15-22; Oct. 17 Tr. 182:17-183:7, 209:16-223:10]; see, e.g., [Oct. 18 Tr. 22:9-48:4; DX293].

         1. The Application

         Students apply to Harvard either through the early action program or the regular decision program.[10] All applications are reviewed in the same way regardless of whether a student has applied for early action or regular decision. [Oct. 18 Tr. 15:5-10]; see [PX1]. The Admissions Office may accept, reject, or waitlist applicants, or, in the case of early action applicants, defer them into the regular decision applicant pool. [Oct. 18 Tr. 124:14-125:9]. Students who apply for early action are admitted at a higher rate than regular decision applicants. [Oct. 25 Tr. 242:19-243:17].

         Students apply to Harvard by submitting the Common Application or the Universal College Application. [Oct. 17 Tr. 186:1-10; Nov. 1 Tr. 27:13-19]. A complete application generally includes standardized test scores, high school transcript(s), information about extracurricular and athletic activities, intended concentration and career, a personal statement, supplemental essays, teacher and guidance counselor recommendations, and other information about the applicant, including high school and personal and family background, such as place of birth, citizenship, disciplinary or criminal history, race, siblings' names and educations, and parents' education, occupation, and marital status. See, e.g., [DX195, DX262, DX276, DX293, DX527, SA1, SA2, SA3, SA4].[11] Applicants can also supplement their applications with samples of their academic or artistic work, which may be reviewed and evaluated by Harvard faculty. [Oct. 17 Tr. 189:5-14; Oct. 18 Tr. 31:21-32:13]; see, e.g., [DX276 at 41; DX293 at 42]. Applicants may, but are not required to, identify their race in their application by discussing their racial or ethnic identity in their personal statement or essays or by checking the box on the application form for one or more preset racial groups (e.g. American Indian or Alaskan Native, Asian, Black or African American, Native Hawaiian or Other Pacific Islander, or White) and may also select or indicate a subcategory of these groups. See [Oct. 18 Tr. 52:8-14; Oct. 26 Tr. 98:2-6; SA2 at 4; SA3 at 8].[12] If applicants disclose their racial identities, Harvard may take race into account, regardless of whether applicants write about that aspect of their backgrounds or otherwise indicate that it is an important component of who they are. [Oct. 26 Tr. 91:17- 92:1].

         2. Alumni and Staff Interviews

         Most applicants interview with a Harvard alumnus. [Oct. 15 Tr. 128:2-6]. Harvard selects alumni to interview candidates based predominantly on geographic considerations. Alumni interviewers are provided with an Interviewer Handbook that describes the admissions process. [Id. at 127:9-128:1]; see [DX5]. Although interviewers have broad discretion in deciding where to conduct the interview, what information to request in advance, and what to ask, Harvard specifies several questions that alumni interviewers should not ask and also instructs alumni not to advise applicants on their chances of admission, given that “this analysis can only be accomplished with full access to all the material in an applicant's file and through the extensive discussions shared and comparisons made through the Committee process.” [DX5 at 30-34]. Alumni interviews generally last from 45 minutes to an hour. [Oct. 17 Tr. 218:25- 219:9].

         Alumni interviewers do not have all of the information that is available to admissions officers at the time of admissions decisions, but their evaluations can be uniquely helpful to admissions officers, as alumni interviews are often an applicant's sole in-person interaction with a Harvard representative. [Id. at 219:17-220:10].[13] Alumni interviewers complete an evaluation form that requests numerical ratings for applicants in academic, personal, and overall categories that align with the rating categories later used by Harvard admissions officers. See [PX88 at 50- 52].[14] Alumni interviewers also score applicants in a single category that captures extracurricular and athletic activities, community involvement, employment, and family commitments, while admissions officers score applicants in separate extracurricular and athletic categories. See [PX88 at 51; SA1 at 29]; see also infra Section 0. Ratings generally fall between 1 and 4, with 1 being the strongest. The ratings criteria used by alumni (i.e. when to rate applicants 1, 2, 3, 4, or worse for the various rating categories) roughly correspond to the criteria used by the admissions officers. Compare [PX1 at 5-7], with [PX88 at 50-52].

         Beyond providing numerical ratings, alumni interviewers write comments explaining their ratings on the interview evaluation form, which is then placed in the applicant's file. See, e.g., [SA1 at 29]. Although the Interviewer Handbook contains a section on distinguishing excellences including “ethnic . . . factors, ” alumni interviewers are not explicitly told to boost the ratings they assign to applicants based on race or ethnicity. [DX5 at 11]. Alumni interviewers are, however, told to “[b]e aware of, and suspect, your own biases” and that awareness of one's biases is important because “no one can really be ‘objective' in attempting to evaluate another person . . . .” [Id. at 35].

         In addition to alumni interviews, which are offered to most applicants, a small percentage of applicants interview with an Admissions Office staff member. [Oct. 19 Tr. 177:14-19]. Although some staff interviews are offered on a first come, first served basis, many applicants secure staff interviews because they are well-connected or particularly attractive candidates, or because they are from a part of the country where an alumni interview may be unavailable. [Oct. 17 Tr. 219:14-220:12; Oct. 19 Tr. 175:8-181:14]. Students who have staff interviews tend to be among the strongest applicants and are admitted at a comparatively high rate. See [Oct. 19 Tr. 178:24-182:18].[15] Asian American applicants are less likely to have a staff interview than white, African American, or Hispanic applicants. [PX619]. Among applicants who receive a staff interview, 59% of African Americans, 48% of Hispanics, 53% of whites and 44% of Asian Americans are admitted. [Id.]. The lower admission rate for staff-interviewed Asian Americans is driven primarily by the fact that Asian American applicants are less likely than African American and Hispanic applicants, and far less likely than white applicants, to be recruited Athletes, Legacies, on the Dean's or Director's interest list, or Children of faculty and staff (“ALDCs”), all of whom are advantaged in Harvard's admissions process. See [id.].[16]

         3. Application Review Process

         i. Admissions Office and Personnel

         The Admissions Office is tasked with deciding which applicants to admit and which to reject or waitlist. See [Oct. 19 Tr. 160:1-11]. Dean of Admissions and Financial Aid William Fitzsimmons, [17] Admissions Director Marlyn McGrath, [18] and Financial Aid Director Sally Donahue[19] oversee the Admissions Office, which has approximately seventy employees, including the forty admissions officers who read applicant files and directly participate in the process of deciding which applicants to admit (the “Admissions Committee”). [Oct. 17 Tr. 180:3-13; Oct. 19 Tr. 232:18-20]. Harvard's admissions staff is a diverse group of individuals that includes Asian Americans. [Oct. 18 Tr. 20:22-21:2]. Several admissions officers testified at trial and forcefully denied the suggestion that racial animus or conscious prejudice against Asian Americans infect Harvard's admissions process. See, e.g., [Oct. 24 Tr. 175:11-17]. Consistent with this, the Court finds no persuasive documentary evidence of any racial animus or conscious prejudice against Asian Americans.

         There is significant turnover in the Admissions Office, which frequently hires relatively young admissions officers who leave to pursue other opportunities after a few years. [Oct. 19 Tr. 233:4-240:3]; see [DX25 at 117-20]. New admissions officers go through an orientation process that includes training on evaluating applicants and how to consider race. [Oct. 18 Tr. 187:13-188:18; Oct. 19 Tr. 43:18-44:2; Oct. 24 Tr. 139:7-24, 222:12-223:14]. The training utilizes a casebook that contains lightly edited application files from past years, and new admissions officers are guided on how to evaluate and score applicants based on those files. See [Oct. 19 Tr. 257:2-20]. The first fifty or one hundred application files reviewed by a new admissions officer are also reviewed by a more senior admissions officer who gives feedback to the less-experienced colleague as part of the training process. See [Oct. 16 Tr. 13:16-20; Oct. 24 Tr. 139:18-22]. The Admissions Office holds an annual retreat that sometimes includes professional development sessions on evaluating applicants, and admissions officers receive an annual training from Harvard's general counsel that covers the permissible use of race in the admissions process. [Oct. 19 Tr. 45:12-47:10]. The Admissions Office has not historically provided new admissions officers with any written guidance on how to consider race in the admissions process, although Harvard amended its admissions reading procedures in 2018 for the class of 2023 to explicitly instruct admissions officers that they “should not take an applicant's race or ethnicity into account in making any of the ratings other than the Overall rating” and that for the overall rating “[t]he consideration of race or ethnicity may be considered only as one factor among many.” [PX723 at 3 (emphasis omitted)]; see [Oct. 16 Tr. 19:12-17].

         ii. Reading Procedures

         Applications are divided into geographic dockets based on high school location. [Oct. 16 Tr. 8:2-20; DX5 at 16]. A subcommittee of the full Admissions Committee is responsible for the initial evaluation of applications within each docket. [DX5 at 16-17]. Docket subcommittees generally include a senior admissions officer who serves as docket chair and three to six additional admissions officers. [Id. at 17]. Each subcommittee member is responsible for reading all applications from a subset of the docket's high schools. [Oct. 17 Tr. 204:6-205:5]. Because the same reader and subcommittee review all applicants from the same high school, admissions officers develop a familiarity with their respective high schools' grading practices, academic rigor, and recommendation styles, all of which help them to fairly and consistently evaluate applicants, both from particular high schools and across high schools within their docket. [Id.]; see [Oct. 24 Tr. 110:17-111:17].

         Applications are initially reviewed by an admissions officer or “first reader” who assigns the applicant ratings based on reading procedures that are updated on an annual basis. See [PX1; DX5 at 17]. Except for the recent changes to the reading procedures to provide more explicit guidance on the use of race, the substantive guidance on rating applicants has remained largely the same in recent years. [Nov. 1 Tr. 123:19-124:21, 128:19-129:10, 168:16-172:25]; see [PX720; PX721; PX722; PX723; DX742; DX743; DX744]. First readers, and any subsequent readers, assign an overall rating; four profile ratings: (1) academic, (2) extracurricular, (3) athletic, and (4) personal; and at least three school support ratings that reflect the strength of each teacher and guidance counselor recommendation submitted on behalf of an applicant. [Oct. 17 Tr. 206:14-209:8, 217:15-218:3]. Application readers may also rate the strength of any additional recommendations submitted by an applicant. [Id. at 218:4-10]. The ratings generally range from 1 to 4, with 1 being the strongest rating. [Oct. 16 Tr. 10:19-11:17; Oct. 17 Tr. 207:13-16]. Ratings of 5 and 6 are also available and indicate either weakness or special circumstances, for example where family responsibilities prevent the applicant from participating in extracurricular activities. [Oct. 16 Tr. 10:21-11:1; PX1 at 5-7]. Admissions officers may also use “” (stronger) and “-” (weaker) signs to fine tune a rating, with a rating of 2 being stronger than a rating of 2, which is stronger than a rating of 2-. [Oct. 16 Tr. 11:11-17]; see [Oct. 18 Tr. 31:2-8]. Each of the profile ratings assigned by the first reader and any subsequent readers are preliminary and used as a starting point for any later consideration of the applicant by a docket subcommittee or the full Admissions Committee. [Oct. 17 Tr. 221:6-19].

         The academic rating reflects the applicant's academic strength and potential based on grades, standardized test scores, letters of recommendation, academic prizes, any submitted academic work, and the strength of the applicant's high school. See [id. at 209:16-210:14; Oct. 19 Tr. 55:4-9; Oct. 24 Tr. 113:5-12]. An academic rating of 1 indicates summa cum laude potential, a genuine scholar, and near-perfect scores and grades (in most cases) combined with unusual creativity and possible evidence of original scholarship; an academic rating of 2 indicates magna cum laude potential, superb grades, and mid- to high-700 SAT scores or a score above 33 on the ACT; an academic rating of 3 indicates cum laude potential, excellent grades, and mid-600 to low-700 SAT scores or an ACT score of 29 to 32; and an academic 4 indicates adequate preparation, respectable grades, and low- to mid-600 SAT scores or an ACT score of 26 to 29. [PX1 at 5-6].

         The extracurricular rating is an assessment of an applicant's involvement in activities during high school and his or her potential to contribute to the extracurricular student life at Harvard. [Oct. 17 Tr. 212:4-213:1]. It may also account for family or personal circumstances that have limited the applicant's participation in extracurricular activities. [Id. at 207:13-23]. An extracurricular rating of 1 indicates national-level, professional or other truly unusual achievement that suggests an applicant may be a major contributor at Harvard; an extracurricular rating of 2 indicates strong contributions to an applicant's high school in one or more areas, such as being class president or achieving recognition for extracurricular accomplishments on a local or regional level; an extracurricular rating of 3 indicates solid participation but without special distinction; and an extracurricular rating of 4 indicates little or no participation. [PX1 at 6].

         An athletic rating of 1 indicates that an applicant is a recruited athlete, an athletic rating of 2 indicates strong high school contribution and possibly leadership roles in athletics, an athletic rating of 3 indicates active participation, and an athletic rating of 4 indicates little or no participation in athletics. [Id.].

         The personal rating reflects the admissions officer's assessment of what kind of contribution the applicant would make to the Harvard community based on their personal qualities. [Oct. 17 Tr. 213:22-216:1; Oct. 18 Tr. 39:1-25]. Although the reading procedures have not historically provided detailed guidance on what qualities should be considered in assigning a personal rating, relevant qualities might include integrity, helpfulness, courage, kindness, fortitude, empathy, self-confidence, leadership ability, maturity, or grit. See [Oct. 17 Tr. 213:22-214:19; Oct. 19 Tr. 227:6-228:2; Oct. 24 Tr. 117:4-24]. For the application cycles that were the subject of the statistical analysis performed in this case, the reading procedures specified that a personal rating of 1 meant “outstanding, ” 2 meant “very strong, ” 3 meant “generally positive, ” and 4 meant “bland or somewhat negative or immature.” [PX1 at 6; PX71 at 6]. The personal rating criteria, perhaps in response to this lawsuit, were overhauled for the class of 2023, and the reading procedures now explicitly state that “an applicant's race or ethnicity should not be considered in assigning the personal rating” and encourage admissions officers to consider “qualities of character” such as “courage in the face of seemingly insurmountable obstacles, ” “leadership, ” “maturity, ” “genuineness, selflessness[, ] humility, ” “resiliency, ” “judgment, ” “citizenship, ” and “spirit and camaraderie with peers.” [PX723 at 5].

         The overall rating reflects the admissions officer's impression of the strength of the application, taking account of all information available at the time the rating is assigned. [Oct. 18 Tr. 186:12-15; Oct. 19 Tr. 49:3-15; PX1 at 5]. An overall rating of 1 is exceptional and a clear admit, an overall 2 reflects strong credentials, an overall 3 indicates good credentials, and an overall 4 indicates respectable credentials. [PX1 at 5; DX744 at 3].[20] Admissions officers are permitted to take an applicant's race into account when assigning the overall rating. [Oct. 17 Tr. 221:3-5].

         Applicants are also assigned school support ratings that indicate the strength of their teacher and guidance counselor recommendations. [Oct. 17 Tr. 217:15-218:10; Oct. 18 Tr. 204:3-22]. A school support rating of 1 indicates strikingly unusual support, a 2 indicates very strong support, a 3 indicates above average positive support, and a 4 indicates somewhat neutral or slightly negative support. [PX1 at 7]. Teacher and guidance counsel recommendations may inform the profile ratings, for example if a teacher discusses a student's academic or extracurricular commitments, but the school support ratings are distinct from the profile ratings and do not impact the profile ratings in a formulaic manner. See [Oct. 31 Tr. 36:10-37:16].

         Harvard also considers whether applicants will offer a diverse perspective or are exceptional in ways that do not lend themselves to quantifiable metrics. Harvard may give applicants a “tip” for “distinguishing excellences, ” such as capacity for leadership, creative ability, and geographic, economic, and racial or ethnic factors. See [Oct. 17 Tr. 191:8-200:20; DX5 at 9-11]. The Admissions Committee gives some applicants large tips for non-academic reasons where an individual's talents or background suggests that admitting them will be especially beneficial to the Harvard community. See [DX5 at 11]. ALDCs are the four most notable groups of applicants, other than racial minorities, who receive such tips. [Oct. 17 Tr. 12:10-14:23, 198:22-201:17; Oct. 18 Tr. 48:14-21; Oct. 23 Tr. 204:10-16; PX104; PX106; PX111]. Recruited athletes receive a tip in the admissions process because they are being recruited by one of Harvard's varsity sports teams and are presumably exceptionally talented, but legacy applicants, those on the dean's or director's interest lists, and children of faculty and staff obtain an admissions tip that is primarily or exclusively a product of family circumstances. Harvard's objective in giving tips to applicants based on criteria other than individual merit, such as to legacies and the children of its faculty and staff, is to promote the institution and is unrelated to the racial composition of those applicant groups. [Oct. 17 Tr. 198:22-200:11].

         When reviewing an application, “first readers” generally begin with the application summary sheet, which is a two to three page document that is prepopulated with much of the key information about an applicant, including the applicant's high school, citizenship, test scores, GPA, class rank, and race. E.g. [DX195 at 2]. The summary sheet also contains blank spaces for ratings and notes, to be filled in by the first reader and a potential second reader. [Oct. 18 Tr. 22:18-23:3]; e.g. [DX195 at 2-4]. After reviewing an application file, the first reader rates the strength of the teacher and guidance counselor letters of recommendation, assigns the academic, extracurricular, athletic, personal, and overall ratings to the applicant, and writes any notes about the applicant. [Oct. 17 Tr. 206:24-207:12]. The reader then sends the application to the docket chair if it merits further review, at which point the docket chair will review the file, record his or her own ratings of the applicant based on the same criteria, and add written comments. See [Oct. 19 Tr. 250:12-251:2]; e.g. [DX195 at 2-3]. Even if the first reader does not pass an application on for further review, the application and the first reader's scoring remain available to all admissions officers and may be discussed later in the admissions process. [Oct. 18 Tr. 12:1-13, 16:7-17:5]. Although docket chairs are frequently the “second reader, ” other admissions officers may also serve as a second reader as circumstances require, for example when the first reader is new to the Admissions Office. [Oct. 17 Tr. 206:1-13].

         iii. Committee Meetings and Admissions Decisions

         After the application files for the early action or regular decision cycle have been reviewed by the early readers, the docket subcommittees meet as a group to collectively evaluate the applications in their dockets and come up with a list of recommended admits for the full Admissions Committee. [Id. at 204:10-12; Oct. 18 Tr. 12:14-13:5]. The subcommittees consider early admission applicants in November and meet again to consider regular decision applicants in late January or February. See [DX41]. First readers act as the advocate for the applicants whose applications they initially reviewed. [Oct. 16 Tr. 8:7-9:2; Oct. 17 Tr. 204:10- 12]. Subcommittees generally go through their docket of applications high school by high school, with the first readers for each high school presenting the applicants they view as legitimate contenders for admission. [Oct. 18 Tr. 9:20-10:7]. All applications on a subcommittee's docket, including those that the first readers view as legitimate contenders and those that they do not intend to present to the subcommittee, are included in a binder which helps the subcommittee members compare and contrast applicants. [Id. at 108:8-11:25]. In some subcommittee meetings, summary information about the applicant under discussion, including race, is projected on a screen so that it can be easily viewed by all subcommittee members during the discussion of that applicant. [Oct. 24 Tr. 191:23-192:24]. The subcommittees make recommendations on applicants, including to admit, waitlist, and reject, and may also place applications on hold to await additional information or defer an early decision applicant to the regular admissions pool. [Oct. 18 Tr. 12:14-13:5]. Subcommittees may take race into account in making these initial recommendations. [Oct. 24 Tr. 128:12-25]. The initial recommendations are not final, and the application review process is fluid. It is common for some applicants who are not initially recommended for admission by a subcommittee to be admitted, and for some applicants who are initially recommended for admission to be waitlisted or rejected, especially where more information about an applicant becomes available later in the admissions process. [Oct. 18 Tr. 13:6-15].

         As the process progresses and after the subcommittees decide more definitively which applicants to recommend for admission, the full Admissions Committee, comprised of all forty admissions officers who read applications, meets to collectively decide which applicants to admit. [Id. at 13:18-21]. Additionally, there is a standing committee, which includes faculty members, that assists the Admissions Office in its review and evaluation of applications, and those faculty members are also invited to attend the full Admissions Committee meetings. [Id. at 13:19-14:8]. The full committee meets in late November and early December to discuss early action applicants and in March to consider regular decision applicants. [Id. at 14:9-11; DX41].

         Almost all applicants who are recommended for admission by the subcommittees are discussed by the full committee. [Oct. 18 Tr. 15:17-19]. Additionally, every admissions officer has access to every application file and may call the full committee's attention to applicants who have not been recommended by a subcommittee. [Id. at 12:1-13, 16:7-9]. Applications are projected on a screen while the full committee discusses the applicant, and the full application file is available to committee members electronically. [Id. at 17:6-11]. At the time of the full committee meeting, there is often more information available to the full committee than was available to the application's earlier readers and the applicable subcommittee because additional high school grades, alumni interview evaluations, and other information frequently becomes available later in the admissions process. [Id. at 17:12-20]. The full Admissions Committee makes decisions by in-person majority votes. [Id. at 17:21-18:2].

         In making admissions decisions, Harvard's goal is to admit the best freshman class for Harvard College, not merely a class composed of the strongest applicants based solely on academic qualifications. [DX5 at 9-10]. Although the reading procedures reflect the traits that Harvard looks for in applicants, Harvard does not decide which applicants to admit based on any formula. See [Oct. 17 Tr. 221:20-223:6]. As the Interviewer Handbook describes:

The Admissions Committee values objective criteria, but holds a more expansive view of excellence. Test scores and grades indicate students' academic aptitude and achievement. The Committee also scrutinizes applications for extracurricular distinction and personal qualities. Students' intellectual imagination, strength of character, and their ability to exercise good judgment-these are other, critical factors in the admissions process, and they are revealed not by test scores but by students' activity outside the classroom, the testimony of teachers and guidance counselors, and by alumni/ae interview reports. Seeking evidence of these three criteria-academic excellence, extracurricular distinction, and personal qualities- the Committee reads with care all the components of each applicant's file: the high school transcript, standardized test scores, extracurricular activities, personal statement, teacher and secondary school recommendations, and the personal interview report.
Attempts to define and to identify precise elements of character, and to determine how much weight they should be given in the admissions process, require discretion and judiciousness. But the Committee believes that the “best” freshman class is more likely to result if we bring evaluation of character and personality into decisions than if we do not. We believe that a diversity of backgrounds, academic interests, extracurricular talents, and career goals among students who live and learn together affects the quality of education as much as a great faculty or vast material resources.

[DX5 at 10].

         The Admissions Office sets a target number of students to admit based on the roughly 1, 600 spots available each year and the expected matriculation or yield rate for admitted applicants. See [Oct. 15 Tr. 160:18-161:5]. After the full committee completes its review of all applicants recommended for admission, Harvard often needs to remove some students from the admit list to reach its target number of admitted students. [Oct. 23 Tr. 191:1-4]. When it becomes necessary to reduce the list of prospective “admits”, the Admissions Committee uses a “lop process” in the closing days of the full committee meetings that involves discussing candidates again and then “lopping” some from the admit list. [Oct. 24 Tr. 130:22-131:10; Nov. 1 Tr. 244:3-245:15].[21] In aid of this, a potential lop list is prepared that may contain the HFAI status, athletic rating, legacy status, gender, and race of the applicants whom the committee is expected to consider lopping. [Oct. 24 Tr. 131:16-24]. Dean Fitzsimmons then informs the Admissions Committee of the characteristics of the admitted class, which may include racial composition, and the committee decides, as a group, which students to lop off the admit list based on many factors, which may include race. See [id. at 196:1-200:16].

         After the Admissions Committee concludes the full committee meetings, applicants are notified whether they have been admitted, wait-listed, or rejected, or in the case of early action students, whether they have been deferred into the regular decision process. See [Oct. 18 Tr. 124:16-125:9]. Additionally, some applicants may be offered deferred admission or “z-listed, ” meaning they are offered a spot in the class following the class year for which they applied. [Oct. 19 Tr. 167:25-168:23].

         Application Review Process [DD1 at 4].

         (Image Omitted)

         4. Harvard's Use of Race in Admissions

         Throughout the admissions process, the Admissions Office leadership tracks the racial composition of the applicant pool, the students recommended for admission to the full committee, and the students admitted by the full committee. The composition of applicants and admitted students helps the Admissions Office see how well its efforts to achieve a diverse class are working by showing, for example, whether Harvard is seeing increases in applications from students with the backgrounds that it has placed a special emphasis on recruiting, and whether minority students have been admitted in numbers that will likely lead to a racially diverse entering class. See [Oct. 18 Tr. 81:20-82:18].

         To do this tracking, Dean Fitzsimmons, Director McGrath, and a few other admissions officers receive “one-pagers” that provide a snapshot of the projected class and compare it to the prior year. [Id. at 80:2-5; Oct. 23 Tr. 178:21-179:10]. The one-pagers contain statistics on applications and admission rates by gender, geography, academic interest, legacy status, financial aid circumstances, citizenship status, racial or ethnic group, and on recruited athlete status and applicants flagged as disadvantaged. [Oct. 18 Tr. at 77:5-78:2]; e.g. [PX165 at 2]. The racial breakdown shown on the one-pagers is provided based on three methodologies, the “old methodology, ” the “new methodology, ” and the federal government's “Integrated Postsecondary Educational Data System” (“IPEDS”), [Oct. 18 Tr. 78:3-13]; e.g. [PX165 at 3], with the Admissions Office preferring the new methodology.[22] [Oct. 18 Tr. 81:6-19, 85:5-7].

         Dean Fitzsimmons shares the breakdown of the admitted class as reflected on the one-pagers with the full committee from time to time. [Id. at 80:6-18; Oct. 19 Tr. 195:21-196:16]. For example, at the start of the full Admissions Committee meetings, he usually states how many students are being recommended for admission by the subcommittees and how the breakdown of the class compares to the prior year in terms of racial identities and other demographics. [Oct. 24 Tr. 83:7-16; Oct. 26 Tr. 104:22-106:14]. The leadership of the Admissions Office monitors the breakdown of the class as the full committee meetings progress and through the lop process. See [Oct. 23 Tr. 181:4-23]. Although there are no quotas for subcategories of admitted students, if at some point in the admissions process it appears that a group is notably underrepresented or has suffered a dramatic drop off relative to the prior year, the Admissions Committee may decide to give additional attention to applications from students within that group. [Oct. 19 Tr. 198:23- 200:10].[23]

         In addition to giving the Admissions Office some perspective on whether it is admitting a diverse class, the collective racial composition of applicants and admitted students helps Harvard better forecast its overall yield rate because different racial groups historically accept offers to attend Harvard at differing rates. [Oct. 15 Tr. 160:18-162:7]. As examples, admitted Asian American students usually matriculate at a higher rate than white students, while admitted Hispanic, African American, Native American, and multiracial applicants matriculate at a lower rate. [Oct. 18 Tr. 80:21-81:5]; see [PX324]. Because of these variations in yield rates by racial group, Harvard uses the racial makeup of admitted students to help determine how many students it should admit overall to avoid overfilling or underfilling its class. See [Oct. 15 Tr. 162:1-15].

         In addition to monitoring the likely racial makeup of the admitted class, admissions officers use race in evaluating applicants and assigning an overall rating. [Oct. 17 Tr. 221:3-5; Oct. 18 Tr. 49:20-50:3, 186:16-25]. Although race may act as a tip or plus factor when making admissions decisions, it is only ever one factor among many used to evaluate an applicant. [Oct. 18 Tr. 49:10-16, 167:2-169:24]; see [DX5 at 11]. Race is only intentionally considered as a positive attribute. [Oct. 16 Tr. 22:18-23:4; Oct. 18 Tr. 197:5-11]; see [Oct. 30 Tr. 80:1-23].

         Admissions officers are not supposed to, and do not intentionally, take a student's race directly into account when assigning ratings other than the overall rating, but Harvard's reading procedures did not instruct readers not to consider race in assigning those ratings until 2018, when Harvard amended the reading procedures for the class of 2023 to provide more explicit guidance on the appropriate use and non-use of race. See [Oct. 18 Tr. 49:20-50:3; Oct. 19 Tr. 252:21-253:13; Oct. 24 Tr. 121:21-122:4, 140:6-25; Nov. 1 Tr. 124:3-125:11; PX723 at 1, 3]. Further, some admissions officers may take an applicant's race into account indirectly, for example when an applicant's race has influenced other personal qualities that the admissions officer believes will add to the Harvard community. [Oct. 19 Tr. 48:11-49:1; Oct. 24 Tr. 138:1-10].

         No admission officer who testified perceived Harvard to be engaged in discrimination against Asian Americans. For example, Senior Admission Officer Charlene Kim[24] was asked what her reaction was to the allegation that Harvard discriminated against Asian Americans. She responded:

I think now just concern. It's not what I know our office to be. It's not who I am. . . . I would never be part of a process that would discriminate against anybody, let alone people that looked like me, like my family, like my friends, like my daughter. And so I'm actually really grateful to be able to be here to share my little bit of my experience on the admissions committee . . . . I'm not here to say that it's perfect, but I know that we don't discriminate against anyone.

[Oct. 24 Tr. 175:11-22].

         To summarize the use of race in the admissions process, Harvard does not have a quota for students from any racial group, but it tracks how each class is shaping up relative to previous years with an eye towards achieving a level of racial diversity that will provide its students with the richest possible experience. It monitors the racial distribution of admitted students in part to ensure that it is admitting a racially diverse class that will not be overenrolled based on historic matriculation rates which vary by racial group. Although racial identity may be considered by admissions officers when they are assigning an applicant's overall rating, including when an applicant discloses their race but does not otherwise discuss it in their application, race has no specified value in the admissions process and is never viewed as a negative attribute. Admissions officers are not supposed to, and do not intentionally, consider race in assigning ratings other than the overall rating.

         C. Prelude to this Lawsuit

         1. The Unz Article

         This lawsuit followed magazine and news articles that raised the specter of Asian American students being penalized in college admissions based on their racial identity. Harvard's response to that controversy demonstrates Harvard's concern about the perception that its admissions process was racially biased but also the complexity of the statistical evidence upon which the allegations here are based.

         On or about November 28, 2012, Ron Unz, a Harvard alumnus, published an article titled “The Myth of American Meritocracy” in The American Conservative (the “Unz Article”). [PX218]. Unz asserted that elite universities were biased against Asian Americans and employed “de facto Asian quotas” as evidenced by a gap between Asian American representation among America's most academically accomplished high school students and their comparatively low representation at elite colleges. [Id. at 9]. The Unz Article, which itself included language that suggested certain unsavory biases, [25] did not attract much attention until approximately one month later when David Brooks of the New York Times published an article that promoted the Unz Article as one of the best magazine articles of the year and argued that stagnant Asian American representation at Harvard between 1995 and 2011 smelled like a quota system. See [Oct. 17 Tr. 24:19-25:17]. The two articles together and their allegations of racial bias sparked concern among Harvard's leadership and some of its alumni, who encouraged Harvard to respond to the allegations. See [id. at 25:8-37:25; PX227; PX238].

         2. Analysis by Office of Institutional Research

         i. Mark Hansen's Admissions Models

         Following the 2012 Christmas and 2013 New Year's holidays, Dean Fitzsimmons attempted to develop a response to the Unz Article, including soliciting input from Harvard's Office of Institutional Research (“OIR”). [Oct. 17 Tr. 37:14-38:16; Oct. 23 Tr. 208:13-209:21; PX230; PX236; PX238].[26] As part of OIR's initial evaluation of the statistical evidence, research analyst Mark Hansen[27] prepared four rough logistic regression models, using data on applicants and admission outcomes for the classes of 2007 through 2016, to project Harvard's admitted classes using a limited set of variables, including applicants' race. [Oct. 24 Tr. 14:5- 24]; see [PX12 at 32-35].[28] His most expansive model used applicants' academic index, [29]academic rating, legacy and recruited athlete status, personal rating, extracurricular rating, gender, and race as inputs to predict the admitted class. See [PX12 at 33]. The classes projected by this model had racial demographics that approximated the actual class based on the probability of admission assigned to applicants by the model. See [id at 34-35]. Mr. Hansen's less complete models, which did not include variables for racial identities, projected admitted classes with far more Asian students than Harvard's actual admitted classes, suggesting either that racial tips resulted in fewer Asian students being admitted or that factors correlated with Asian identity that were not included in Mr. Hansen's models were significantly affecting which applicants Harvard chose to admit. See [id at 33-34].

         Mr. Hansen's models could lead a casual observer to conclude that race plays a significantly larger role in Harvard's admissions process than it actually does. The models incorporate far fewer variables than those prepared by the parties' economic experts for this litigation and omit many variables that are important to the admissions process. Compare [PX12 at 33], with [PD38 at 26].[30] Even Mr. Hansen's most complete model almost certainly suffers from considerable omitted variable bias in light of the likely correlation between race and important variables that Mr. Hansen did not include. Most notably, his models contain no controls for socioeconomic and family circumstances that correlate with race and also affect admissions decisions. See [PX12 at 33]. Given these deficiencies in the models, they are entitled to little weight for the purpose of determining whether Harvard discriminates against Asian American applicants, particularly given the availability of the experts' far more comprehensive models and the testimony offered by fact witnesses in this case. See [Oct. 19 Tr. 19:19-20:8]. Mr. Hansen's models do suggest, consistent with other evidence, that Asian Americans applicants excel in academic metrics; that tips for legacies and recruited athletes result in more white students being admitted; that a projection of Harvard's class ...


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