Harvard Offers Pointed Response to SFFA Proposed Findings of Fact and Conclusions of Law

January 23, 2019

Harvard today filed in U.S. District Court a pointed and detailed response to the Proposed Findings of Fact and Conclusions of Law filed by Students for Fair Admissions (SFFA) following the recently-concluded trial in Students for Fair Admissions, Inc. (SFFA) v. Harvard. The document provides specific responses to SFFA’s erroneous conclusions, and again demonstrates that Harvard’s admissions process does not discriminate against Asian- American applicants, but rather, is an exemplary, lawful process dedicated to strengthening diversity and expanding opportunity.

“Two footnotes buried in SFFA’s filing make clear its real ambition: to change the law, by asking the Supreme Court to overrule its precedents and hold that Title VI forbids any consideration of race ‘by any federally funded university’…If that day ever comes, it will dramatically reduce diversity at Harvard and at colleges and universities across the country."

“It will undercut the considered judgment of educators at Harvard and elsewhere that diversity enhances the campus community and the learning that takes place in classrooms, around the tables in dining halls, and on playing fields. It will leave generations of young Americans less equipped to thrive in confronting the challenges of a complex world."

“And it will send the message—and create the reality—that America’s universities are no longer its cradles of opportunity and its beacons of social mobility. Congress cannot possibly have envisioned that Title VI, a statute enacted to expand opportunity, would produce that result.”

Worth noting in today’s filing:

Harvard does not discriminate against Asian-American applicants

“Contrary to SFFA’s misleading statistics and unsupported claims, Harvard’s efforts to achieve diversity on many dimensions have paid off; the socioeconomic and geographic diversity of the student body have increased over time. “

“The evidence showed that Harvard does not intentionally discriminate against Asian-American applicants on the basis of their race and that Harvard considers race in the manner long permitted by the Supreme Court. Harvard does not engage in racial balancing, does not consider race as more than one among many factors in evaluating otherwise competitive candidates, and could not achieve its educational objectives without considering race.”

“SFFA’s response is to rewrite the law and reimagine the facts. Time and again, SFFA’s filing offers incorrect legal arguments that it has never before presented. And time and again, SFFA recounts the evidence at trial in ways irreconcilable with the trial record.”

“…on its intentional discrimination claim, SFFA argues for the first time that Harvard bears the burden of persuasion, and it invokes a legal standard—the pattern-or-practice standard set forth in International Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977)—on which it has never previously relied. But neither of SFFA’s novel arguments is correct. It is well settled that plaintiffs bear the burden of proof under Title VI (as in civil litigation more generally); the fact that strict scrutiny applies to Harvard’s consideration of race in pursuit of diversity does not relieve SFFA of the burden to prove Harvard intentionally discriminates between Asian-American and White applicants.”

"SFFA seeks to elide in its evidence of intentional discrimination by accusing Harvard’s admissions officers of unconsciously discriminating against Asian-American applicants. But SFFA presented no actual evidence that anyone in the Admissions Office bore unconscious bias. Instead, it relies on largely extra-record evidence of societal discrimination against Asian Americans…and then makes the extraordinary suggestion that Harvard must prove it ‘has uniquely escaped [the] infiltration’ of societal prejudice...SFFA could hardly be more candid about its lack of evidence.”

SFFA’s flawed statistical evidence fails to prove discrimination

“SFFA’s statistical case is pervasively marred by its failure to model how the admissions process actually works.”

“Dr. Arcidiacono’s regression analysis is no more persuasive evidence of intentional discrimination than his descriptive statistics. On one methodological issue after another, Dr. Arcidiacono chose to exclude applicants considered as part of the same admissions process and to exclude factors considered in that process, with no sound basis for doing so. His choices appear to have been driven by the desire to reach the result that SFFA wanted to find. As a result, his analysis does not reflect an appropriate attempt to model Harvard’s admissions process and thus has little probative value.”

SFFA fails on racial balancing argument

“SFFA tries to salvage its racial balancing claim in the face of the unrebutted evidence that the racial composition of Harvard’s admitted and matriculating classes has varied meaningfully from year to year. Unable to respond to that evidence, SFFA ignores it.“

Harvard considers race in a manner permitted by precedent

“…SFFA’s challenge to the manner in which Harvard considers race once again shows that its real disagreement is with the Supreme Court precedents that have held up the Harvard process as a model of legality.”

“Contrary to SFFA’s attacks, the trial showed that Harvard considers race in the flexible, individualized manner permitted by the Supreme Court; that race meaningfully affects the likelihood of admission only for candidates who would be highly competitive no matter what their race; and that, for such candidates, race does not have an effect disproportionate to that of all other factors.”

Non-racial alternatives fall short

“SFFA is left only with the ipse dixit that the four combinations of practices proposed by its expert at trial would be viable for Harvard—even though all would produce a 30% decline in the proportion of African-American students in the student body and would meaningfully compromise Harvard’s standards of academic excellence, as the committee concluded after careful study.”

See also: Statement