On November 17, 2014, Students for Fair Admissions Inc. filed a lawsuit in the United States District Court for the District of Massachusetts under The Civil Rights Act of 1964, 42 U.S.C. §2000d against Harvard College. Plaintiff, represented by private counsel, asked the court for declaratory and injunctive relief to prohibit the consideration of race in college admissions, claiming that Harvard's current admissions policy discriminated against Asian American applicants.
Specifically, plaintiff claimed that Harvard's current admissions policy holds Asian American students to a higher standard based on their race and intentionally limits the number of Asian Americans admitted each year. Moreover, plaintiff claimed that Harvard generally considers race to an impermissible degree in violation of the Equal Protection Clause and Title VI of The Civil Rights Act by engaging in a prohibited form of racial balancing, not limiting its consideration of an applicant's race to "merely a plus factor," and not using an available, racially neutral alternative that would achieve the same goals of diversity.
As evidence of this, plaintiff pointed to admissions data that showed a disparity between acceptance for Asian American students at Harvard and at other schools, for example, the University of California, which does not employ racial considerations in its admissions process. Additionally, plaintiff pointed to the stagnant acceptance rates for Asian American students, despite increases in application rates and qualifications of Asian American applicants. According to plaintiff, this was evident of a policy indistinguishable from racially based quotas for admissions. Plaintiff also pointed to Harvard’s long history of admissions discrimination, which suggested that their current policy may have similar aims.
After Harvard denied the allegations, the two parties proceeded with discovery. Other proposed defendant intervenors, including nine potential Harvard minority applicants and five current Harvard minority students, motioned to intervene in the lawsuit in defense of Harvard’s admissions policy on April 29th, 2015. Judge Allison D. Burroughs denied their motion to intervene on June 15th, 2015. 91 Fed.R.Serv.3d 1962. The proposed-defendant-intervenors appealed this decision on July 13th, 2015. Judge Burroughs ruled that the nine potential Harvard minority applicants did not have a direct, protectable interest in the lawsuit since none of them had yet submitted a pending application, therefore making their interests too removed and speculative to justify intervention. As for the current Harvard students, Judge Burroughs ruled that, because these students had already been admitted and were currently enrolled at Harvard, they no longer had a remaining interest in Harvard’s use of race in its admissions policies. Though the current students claimed that they had a personal interest in Harvard continuing to have a racially diverse student body, the judge held that this was not a significantly protectable interest to justify intervention.
On July 6th, 2015, Harvard moved to stay the proceeding pending the Supreme Court’s resolution of Fisher v. University of Texas. On August 5th, 2015, the proposed-defendant-intervenors also moved to stay the proceeding pending their appeal to the First Circuit on whether they were rightful intervenors in the lawsuit.
Meanwhile, the two parties disputed over the scope of discovery. On July 16th, 2017, plaintiff submitted a motion to compel production of Harvard’s admissions files. They claimed that Harvard had agreed to submit a statistically significant sample of their files, which plaintiff had proposed as 400 completed application files from each of the largest racial categories from each of the past four years, split evenly between admitted and denied. However, Harvard only agreed to produce 160 completed files from the past four years, half of which they proposed to hand pick, claiming that the plaintiff could perform their proposed statistical analysis from the Admissions Office database without the complete application files and that the discovery request was too burdensome. The parties also disputed over whether Harvard should have to produce information connected to its alumni interviewer program and about its use of race in transfer admissions.
On October 9th, 2015, Judge Burroughs granted the proposed-defendant-intervenors motion to stay in part and denied it in part. The judge decided to stay the action until the Court of Appeals decided whether the proposed-defendant-intervenors had a right to intervene, but ordered Harvard to continue producing the documents that the original two parties had agreed to during their July 12th, 2015 status conference. Specifically, Harvard had to continue producing information pertaining to its admissions policies and procedures, information pertaining to its alumni interviewer program, training manuals, and electronic admissions data from its database from the past two admissions cycles.
On December 9th, 2015, the Court of Appeals affirmed the district court’s judgment to deny the proposed-defendant-intervenors’ motion to intervene. 93 Fed.R.Serv.3d 792. Subsequently, on March 11th, 2016, Judge Burroughs ordered a further partial stay on the action until the resolution of the Supreme Court case Fisher v. University of Texas. Some discovery was allowed to continue during the stay, but the parties were barred from taking depositions, requesting information pertaining to alumni interviewers, requesting discovery from third parties, and generallyrequesting any large scale electronic discovery. However, the parties were allowed to file proposals as to what other additional discovery should go forward during the Fisher stay.
The Supreme Court decided Fisher v. University of Texas on June 23rd, 2016, which held that the University of Texas at Austin’s undergraduate race-conscious admissions program was lawful under the Equal Protection Clause. Thus, on September 7th, 2016, the judge issued an order on the parties’ scope of discovery going forward. Specifically, the judge ruled that Harvard should produce comprehensive data from its admissions database from the past six full admissions cycles from 2009-2015 as well as limited admissions data for the 2007-2009 cycles. Harvard did not have to produce information from past alleged discriminatory policies towards Jewish-Americans or about its matriculated students’ academic performance—however, it did have to produce information about aggregate graduation data from 2007-2015 and anything pertaining to prior investigations or reports related to Asian American discrimination. Finally, the judge limited plaintiff to 20 depositions, 15 of which could be witnesses from Harvard.
On September 23rd, 2016, defendant motioned for judgment on the pleadings on two of plaintiff’s causes of action as well as motioned to dismiss the lawsuit for lack of subject-matter jurisdiction. Specifically, Harvard motioned for judgment on plaintiff’s claims that 1) Harvard violated Title VI of the Civil Rights Act because it was not using race merely to fill the last few places in its entering freshman class and 2) that all past Supreme Court decisions upholding the consideration of race in admissions were wrongly decided, and that the Supreme Court should now hold that diversity “is not an interest that could ever justify any consideration of race.” On the first count, Harvard claimed that plaintiff’s Title VI violation allegation was not grounded in substantive law, and indeed was contradicted by Supreme Court precedent affirming the use of holistic, individualized review that includes race. On the second count, Harvard claimed that plaintiff did not have the power to call for overruling Supreme Court precedent. Finally, in its motion to dismiss, Harvard argued that the plaintiff did not have the standing to sue on behalf of its constituents because it lacked the characteristics of a genuine membership organization, such as members having control over leadership, power to influence conduct, and financing or participating in its activities.
On June 2nd, 2017, the court denied Harvard’s motion to dismiss, ruling that the plaintiff was a genuine membership organization with standing to sue on behalf of its constituents. 2017 WL 2407255. However, the court granted Harvard’s motion for partial judgment on the two counts, ruling that plaintiff cannot overrule Supreme Court precedent and that its allegation that admissions offices can only use race-conscious admissions for the last few places in its entering class was unsupported by law. 2017 WL 2407254.
Discovery in the case closed on August 4th, 2017. The court did grant plaintiff one additional deposition on August 7th, 2017, despite the fact that the deadline had passed and that the plaintiff had already used all its requested depositions, partly because it ruled that Harvard arguably should have disclosed the party’s name earlier.
As of November 3rd, 2017, this case is still ongoing.
Patrick Branson - 02/03/2015
Sarah Du - 11/13/2017
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