United States Court of Appeals
`For the First Circuit
`
`
`
`No. 19-2005
`
`
`
`
`
`STUDENTS FOR FAIR ADMISSIONS, INC.,
`Plaintiff, Appellant,
`v.
`PRESIDENT AND FELLOWS OF HARVARD COLLEGE,
`Defendant, Appellee.
`
`APPEAL FROM THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MASSACHUSETTS
`
`[Hon. Allison D. Burroughs, U.S. District Judge]
`
`
`Before
`
`Howard, Chief Judge
`and Lynch, Circuit Judge.*
`
`
`William S. Consovoy, with whom Thomas R. McCarthy, J. Michael
`Connolly, Cameron T. Norris, Patrick Strawbridge, Consovoy
`McCarthy PLLC, Adam K. Mortara, John M. Hughes, and Bartlit Beck
`LLP were on brief, for appellant Students for Fair Admissions,
`Inc.
`Eric S. Dreiband, Assistant Attorney General, with whom
`Elliot M. Davis, Acting Principal Deputy Assistant Attorney
`General, Thomas E. Chandler, and Matthew J. Donnelly were on brief,
`for the United States, amicus curiae.
`Gordon M. Fauth, Jr., Litigation Law Group, Lee C. Cheng, and
`
`*
`Judge Torruella heard oral argument in this matter and
`participated in the semble, but he did not participate in the
`issuance of the panel's decision. The remaining two panelists
`therefore issued the opinion pursuant to 28 U.S.C. § 46(d).
`
`

`

`Asian American Legal Foundation on brief for the Asian American
`Coalition for Education and the Asian American Legal Foundation,
`amici curiae.
`Wencong Fa, Joshua P. Thompson, and Pacific Legal Foundation
`on brief for Pacific Legal Foundation, Reason Foundation, Center
`for Equal Opportunity, Individual Rights Foundation, and the
`Chinese American Citizens Alliance - Greater New York, amici
`curiae.
`Randall B. Clark, C. Boyden Gray, Adam R.F. Gustafson, James
`R. Conde, T. Elliot Gaiser, and Boyden Gray & Associates on brief
`for Economists Michael Keane, Hanming Fang, Christopher Flinn,
`Stefan Hoderlein, Yingyao Hu, Joseph Kaboski, Glenn Loury, Thomas
`Mroz, John Rust, and Matthew Shum, amici curiae.
`Jun Xiao, Yong Li, Xiaoying Yu, and Haiying Li, on brief pro
`se.
`Timothy J. Perry, Perry Krumsiek, LLP, T. Russell Nobile,
`Robert D. Popper, and Judicial Watch, Inc. on brief for Judicial
`Watch, Inc., amicus curiae.
`Cody J. Wisniewski on brief for Mountain States Legal
`Foundation, amicus curiae.
`Dwight Duncan and Dennis J. Saffran on brief for National
`Association of Scholars, amicus curiae.
`Seth P. Waxman, with whom Paul R.Q. Wolfson, Danielle Y.
`
`Conley, Brittany Blueitt Amadi, William F. Lee, Felicia H.
`Ellsworth, Andrew S. Dulberg, Debo P. Adegbile, Michelle Liszt
`Sandals, Greg Schmidt, Emma Simson, Alex Hemmer, Wilmer Cutler
`Pickering Hale and Dorr LLP, Ara B. Gershengorn, and Harvard
`University, Office of the General Counsel were on brief, for
`appellee President and Fellows of Harvard College.
`
`David Hinojosa, with whom Jon M. Greenbaum, Genevieve
`Bonadies Torres, Lawyers' Committee for Civil Rights Under Law,
`Lawrence E. Culleen, Elisabeth S. Theodore, Nancy L. Perkins,
`Janine M. Lopez, Emma Dinan, Camille Heyboer, Arnold & Porter Kaye
`Scholer LLP, Niyati Shah, Marita Etcubanez, Eri Andriola, Asian
`Americans Advancing Justice, Oren M. Sellstrom, and Lawyers for
`Civil Rights were on brief, for Students, Alumni, and Prospective
`Students of Harvard College, amici curiae.
`Jin Hee Lee, with whom Sherrilyn Ifill, Janai Nelson, Samuel
`Spital, Rachel Kleinman, Cara McClellan, Michaele N. Turnage
`Young, Jennifer A. Holmes, NAACP Legal Defense and Educational
`Fund, Inc., Kate R. Cook, Kenneth N. Thayer, and Sugarman, Rogers,
`Barshak & Cohen, P.C. were on brief, for Coalition for a Diverse
`Harvard, Association of Black Harvard Women, First Generation
`Harvard Alumni, Fuerza Latina of Harvard, Harvard Asian American
`Alumni Alliance, Harvard Asian American Brotherhood, Harvard Black
`Alumni Society, Harvard Islamic Society, Harvard Japan Society,
`Harvard Korean Association, Harvard Latino Alumni Alliance,
`
`

`

`Harvard Minority Association of Pre-Medical Students, Harvard
`Phillips Brooks House Association, Harvard Progressive Jewish
`Alumni, Harvard South Asian Association, Harvard University Muslim
`Alumni, Harvard Vietnamese Association, Harvard-Radcliffe Asian
`American Association, Harvard-Radcliffe Asian American Women’s
`Association, Harvard-Radcliffe Black Students Association,
`Harvard-Radcliffe Chinese Students Association, Kuumba Singers of
`Harvard College, Native American Alumni of Harvard University,
`Native Americans at Harvard College, Task Force for Asian American
`Progressive Advocacy and Studies, and 21 Colorful Crimson, amici
`curiae.
`Jessica L. Ellsworth, Stephanie J. Gold, Jo-Ann Tamila Sagar,
`Hogan Lovells US LLP, Peter McDonough, and American Council on
`Education on brief for American Council on Education and 40 Other
`Higher Education Organizations, amici curiae.
`
`Samuel P. Groner, Harrison D. Polans, Fried, Frank, Harris,
`Shriver & Jacobson, LLP, Steven M. Freeman, and Amy Feinman on
`brief for Anti-Defamation League, amicus curiae.
`
`Madeleine K. Rodriguez, Dean Richlin, Hemmie Chang, Sarah
`Burg, Rachel Hutchinson, Jacqueline Chávez, Foley Hoag LLP,
`Kenneth Kimerling, and Asian American Legal Defense and Education
`Fund on brief for Asian American Legal Defense and Education Fund
`and Other Asian American Education and Youth-Serving Organizations
`and Higher Education Faculty.
`
`Jaime A. Santos, Sabrina M. Rose-Smith, William Evans, and
`Goodwin Procter LLP, on brief for the National Association of
`Basketball Coaches, Women's Basketball Coaches Association, Geno
`Auriemma, James A. Boeheim, John Chaney, Tom Izzo, Michael W.
`Krzyzewski, Joanne P. McCallie, Nolan Richardson, Bill Self, Sue
`Semrau, Orlando Smith, Tara Vanderveer, Roy Williams, Jay Wright,
`and 326 Additional Current or Former College Head Coaches, amici
`curiae.
`
`Matthew S. Hellman, Ishan K. Bhabha, and Jenner & Block LLP,
`on brief for Brown University, Columbia University, Cornell
`University, Dartmouth College, Duke University, Emory University,
`Johns Hopkins University, Massachusetts Institute of Technology,
`Princeton University, Stanford University, University of Chicago,
`University of Pennsylvania, Vanderbilt University, Washington
`University in St. Louis, and Yale University, amici curiae.
`
`Maura Healey, Attorney General of Massachusetts, Elizabeth N.
`Dewar, State Solicitor, Ann E. Lynch, Assistant Attorney General
`of Massachusetts, David Ureña, Assistant Attorney General of
`Massachusetts, Xavier Becerra, Attorney General of California,
`Philip J. Weiser, Attorney General of Colorado, Kathleen Jennings,
`Attorney General of Delaware, Karl A. Racine, Attorney General for
`the District of Columbia, Clare E. Connors, Attorney General of
`Hawai'i, Kwame Raoul, Attorney General of Illinois, Aaron M. Frey,
`
`

`

`Attorney General of Maine, Brian E. Frosh, Attorney General of
`Maryland, Keith Ellison, Attorney General of Minnesota, Aaron D.
`Ford, Attorney General of Nevada, Hector Balderas, Attorney
`General of New Mexico, Letitia James, Attorney General of New York,
`Josh Shapiro, Attorney General of Pennsylvania, Peter Neronha,
`Attorney General of Rhode Island, and Mark R. Herring, Attorney
`General of Virginia, on brief for Massachusetts, California,
`Colorado, Delaware, the District of Columbia, Hawai'i, Illinois,
`Maine, Maryland, Minnesota, Nevada, New Mexico, New York,
`Pennsylvania, Rhode Island, and Virginia, amici curiae.
`Derek T. Ho, Bradley E. Oppenheimer, Minsuk Han, Joseph L.
`Wenner, and Kellogg, Hansen, Todd, Figel & Frederick P.L.L.C. on
`brief for Professors of Economics, amicus curiae.
`Sarah E. Harrington and Goldstein & Russell, P.C. on brief
`for 678 Social Scientists and Scholars on College Access, Asian
`American Studies, and Race, amici curiae.
`Anton Metlitsky, Patrick D. McKegney, Apalla U. Chopra,
`Bradley N. Garcia, Anna O. Mohan, and O'Melveny & Myers LLP on
`brief for Walter Dellinger, amicus curiae.
`Mark S. Davies, Thomas M. Bondy, Katherine M. Kopp, Sheila A.
`Baynes, Sarah H. Sloan, E. Joshua Rosenkranz, Darren S. Teshima,
`and Orrick, Herrington & Sutcliffe LLP on brief for Amgen Inc.,
`Apple Inc., Applied Materials, Inc., Cisco Systems, Inc., Cummins
`Inc., General Electric Company, Gilead Sciences, Inc.,
`GlaxoSmithKline LLC, Intel Corporation, Micron Technology, Inc.,
`Microsoft Corporation, Twitter, Inc., and ViiV Healthcare Company,
`amici curiae.
`
`Keffe B. Clemons on brief for Verizon Services Corp., amicus
`curiae.
`
`
`
`November 12, 2020
`
`
`
`
`
`

`

`LYNCH, Circuit Judge. Students for Fair Admissions,
`Inc. ("SFFA") brought suit on November 17, 2014, against the
`President and Fellows of Harvard College and the Board of Overseers
`(collectively, "Harvard"). The suit alleged that Harvard
`College's admittedly race-conscious undergraduate admissions
`process violates Title VI of the Civil Rights Act of 1964, 42
`U.S.C. § 2000d et seq. ("Title VI") by discriminating against Asian
`American applicants in favor of white applicants.
`SFFA asserts that Harvard fails to meet the Supreme
`Court's standards for the use of race in admissions which are
`asserted to be justified by diversity in these ways: (1) it engages
`in racial balancing of its undergraduate class; (2) it
`impermissibly uses race as more than a "plus" factor in admissions
`decisions; (3) it considers race in its process despite the
`existence of workable race-neutral alternatives; and (4) it
`intentionally discriminates against Asian American applicants to
`Harvard College. SFFA seeks a declaratory judgment, injunctive
`relief, attorneys' fees, and costs.
`The district court denied Harvard's motion to dismiss
`SFFA's suit for lack of Article III standing. See Students for
`Fair Admissions, Inc. v. President & Fellows of Harvard Coll.
`("SFFA I"), 261 F. Supp. 3d 99, 111 (D. Mass. 2017).
`After a fifteen-day bench trial at which thirty
`witnesses testified, the district court issued a 130-page opinion
`
`- 5 -
`
`

`

`with findings of fact and conclusions of law. See Students for
`Fair Admissions, Inc. v. President & Fellows of Harvard Coll.
`("SFFA II"), 397 F. Supp. 3d 126, 132 (D. Mass. 2019). It made
`numerous factual findings, including as to competing expert
`witness testimony and credibility determinations about the
`testimony of witnesses. See id. at 158-83. The district court
`found that Harvard had met its burden of showing its admissions
`process did not violate Title VI. See id. at 197, 199, 201, 204.
`It entered judgment for Harvard on all counts. See id.
`SFFA appeals from this judgment, and Harvard renews its
`argument that SFFA lacks standing.1
`After careful review of the record, we hold that SFFA
`has associational standing to bring its claims and that under
`governing Supreme Court law Harvard's race-conscious admissions
`program does not violate Title VI.2
`
`
`1
`The district court dismissed two of SFFA's original
`claims before trial: that Harvard uses race to fill more than just
`the last few places in its class and that Harvard considers race
`in its admissions process generally. SFFA does not challenge the
`dismissal of these claims on appeal.
`2
`We acknowledge and thank all of the amici curiae for
`their helpful submissions in this matter. The following amici
`submitted briefs in support of SFFA: the United States; the Asian
`American Coalition for Education and the Asian American Legal
`Foundation; the Pacific Legal Foundation and the four other
`institutions on the brief; Michael Keane and the nine other
`economists on the brief; Jun Xiao and the three other individuals
`on the brief; Judicial Watch, Inc.; the Mountain States Legal
`Foundation; and the National Association of Scholars. The
`following amici filed briefs in support of Harvard: Students,
`Alumni, and Prospective Students of Harvard College; the American
`
`- 6 -
`
`

`

`Facts
`I.
`We recount the relevant basic facts before we turn to
`our legal analysis.
`1)
`SFFA
`
`SFFA is a validly incorporated 501(c)(3) nonprofit
`organization. Its bylaws state that it was formed to "defend human
`and civil rights secured by law, including the right of individuals
`to equal protection under the law, through litigation and any other
`lawful means."
`SFFA was incorporated on July 30, 2014. Its original
`board of directors had three self-appointed members: Edward Blum,
`President, Abigail Fisher, Secretary, and Richard Fisher,
`Treasurer. In November 2014, when it filed suit against Harvard,
`SFFA's bylaws also provided for "affiliate members" who
`
`
`Council on Education and the forty other higher education
`organizations on the brief; the Anti-Defamation League; the Asian
`American Legal Defense Fund and the forty-five other Asian American
`education and youth-serving organizations and faculty on the
`brief; the National Association of Basketball Coaches, the Women's
`Basketball Coaches Association, and the 339 current and former
`coaches on the brief; Brown University and the fourteen other
`colleges and universities on the brief; Massachusetts and the
`fifteen other states on the brief; the eighteen Professors of
`Economics; the 678 Social Scientists and Scholars on College
`Access, Asian American Studies, and Race; Walter Dellinger; and
`the Coalition for a Diverse Harvard and the twenty-five other
`organizations on the brief. Amgen, Inc. and thirteen other
`corporations submitted a brief in favor of preserving diversity
`and inclusion efforts like those previously approved by the Supreme
`Court.
`
`
`- 7 -
`
`

`

`"support[ed] the purposes and mission of the Corporation." All
`members of SFFA were affiliate members. Membership was free, but
`affiliate members could not vote for any officers or directors of
`the organization. SFFA had forty-seven affiliate members when it
`sued Harvard, including Asian American members who had applied to
`and been rejected by Harvard. Several of these members submitted
`declarations stating that they voluntarily joined SFFA, supported
`its mission, had been in contact with SFFA, received updates about
`this litigation, and were able to express their views on it.
`In June 2015, SFFA amended its bylaws to eliminate
`"affiliate members" and replace them with "general members."
`Unlike affiliate members, general members have the right to vote
`for a member-elected director and must pay membership dues to SFFA.
`As of 2017, SFFA's membership had increased to approximately 20,000
`members.
`2)
`Harvard's Admissions Process
`Harvard's admissions process is complex and highly
`competitive. Each year, Harvard College attempts to admit a class
`of roughly 1,600 students. For its class of 2019, Harvard received
`around 35,000 applications. Because of the size of the applicant
`pool relative to Harvard's available slots, Harvard cannot admit
`all applicants who would succeed academically. Harvard has
`determined that academic excellence alone is not sufficient for
`admission. Rather, Harvard seeks students who are not only
`
`- 8 -
`
`

`

`academically excellent but also compelling candidates on many
`dimensions.
`Harvard's application process3 is accurately described
`as having six components: (1) Harvard's pre-application
`recruitment efforts; (2) students' submission of applications; (3)
`Harvard's "first read" of application materials; (4) admissions
`officer and alumni interviews; (5) subcommittee meetings of
`admissions officers to recommend applicants to the full admissions
`committee; and (6) full admissions committee meetings to make and
`communicate final decisions to applicants. Harvard also uses a
`system of "tips" for certain applicants. Tips may be considered
`during or after the third stage.
`Pre-Application Recruitment Efforts by Harvard
`
`Harvard engages in significant recruitment efforts.
`Each admissions cycle, it buys the names and contact information
`of students who do well academically and on standardized tests
`from ACT and the College Board, the two main organizations that
`administer standardized tests used in college admissions. Harvard
`uses this information to assemble a "search list." That list in
`relevant years has had more than 100,000 students. Students on
`
`
`3
`Because SFFA's allegations of discrimination relate only
`to United States citizens or permanent residents, the following
`discussion is limited to the application process for domestic
`applicants. The statistical analyses performed by the parties'
`experts exclude data from foreign applicants.
`
`- 9 -
`
`

`

`the search list receive communications encouraging them to
`consider applying to Harvard. A student's presence on the search
`list has no effect on whether Harvard will admit them.4 Harvard
`purchases information about high school students of all races,
`including Asian Americans. It purchases information for some
`groups of students, such as African American or Hispanic students
`and for students from states Harvard has labeled "Sparse Country,"5
`who have lower standardized test scores than other students.
`Harvard specifically recruits minority students --
`including African American, Hispanic, and Asian American students
`-- through its Undergraduate Minority Recruitment Program
`("UMRP"). Low-income applicants and those who are the first in
`their family to go to college are encouraged to apply through the
`Harvard Financial Aid Initiative ("HFAI"). Despite these efforts
`to expand its applicant pool, the demographics of Harvard's
`
`
`4
`Students on the search list are twice as likely to be
`admitted to Harvard as students who are not on the search list.
`But correlation does not imply causation. Because the search list
`mechanically includes students who do well academically and have
`high test scores -- students who would be stronger applicants to
`Harvard than those who have less impressive academic and testing
`credentials -- it does not follow that being on the search list
`causes these students to be admitted at higher rates.
`5
`Harvard uses "Sparse Country" as a shorthand for areas
`of the United States that are sparsely populated. Sparse Country
`includes twenty states: Alabama, Alaska, Arizona, Arkansas, Idaho,
`Louisiana, Maine, Mississippi, Montana, Nebraska, Nevada, New
`Hampshire, New Mexico, North Dakota, Oklahoma, South Dakota, Utah,
`Vermont, West Virginia, and Wyoming.
`
`- 10 -
`
`

`

`applicants and its admitted students do not mirror those of the
`United States on many criteria, including race.
`Information Contained in Submitted Applications
`
`Applicants apply to Harvard by Early Action or Regular
`Decision. The review process is identical for both. Early Action
`students receive admissions decisions more quickly.
`Harvard uses the Common Application, a standardized
`application that applicants fill out once to apply to different
`colleges and universities of their choice. As part of the Common
`Application, students submit a great deal of information,
`including about their standardized test scores, transcripts,
`extracurricular and athletic activities, awards, parents' and
`siblings' educational information, parents' occupations and
`marital status, teacher and guidance counselor recommendations,
`intended field of study, personal statement, and additional
`supplemental essays or academic material. Some information --
`like racial identity -- can, but need not, be submitted.
`Consideration of Submitted Applications: Harvard's "First
`
`Read" of Application Materials
`During the admissions cycles directly challenged by
`SFFA, Harvard's admissions office was led by William Fitzsimmons,
`the Dean of Admissions and Financial Aid, Marlyn McGrath, the
`Admissions Director, and Sally Donahue, the Financial Aid
`Director. Harvard staffs its admissions office with approximately
`
`- 11 -
`
`

`

`seventy people, forty of whom are admissions officers. Admissions
`officers read applications and decide which applicants will be
`offered admission. New admissions officers are trained and
`supervised by more experienced admissions officers. This training
`includes instruction on how to consider race.
`All admissions officers are given a copy of Harvard's
`reading procedures, which explain how to evaluate applications.6
`The reading procedures include guidelines for assigning numerical
`ratings to applicants in certain categories. The guidelines detail
`the factors admissions officers should consider when assigning
`these numerical ratings.
`Before admissions officers begin reading applications,
`they divide the applications based on geography. Admissions
`officers are organized into subcommittees dedicated to reviewing
`applications from specific regions.7 Within each subcommittee,
`admissions officers further specialize by reading all applications
`from certain high schools. Each high school has a dedicated "first
`reader" for applications from that high school. First readers do
`
`
`6
`The following descriptions reflect the reading
`instructions given to admissions officers for the class of 2018
`and were in effect during the period analyzed via statistical
`analysis in this lawsuit. Harvard has since revised them for later
`class years. Any relevant changes are discussed below.
`7
`To limit inter-geographic discrepancies in application
`evaluations, each admissions officer serves on at least two
`subcommittees.
`
`- 12 -
`
`

`

`not always have an applicant's complete application when reviewing
`a file. For example, an application might be missing an alumni
`interview report or a teacher recommendation when it is first
`reviewed. Every application has a set of numerical ratings
`assigned by the first reader. Some applications are also given
`additional rounds of ratings by additional readers.8 Faculty
`members might also review files.9
`There are six types of ratings assigned during the
`reading stage: academic ratings, extracurricular ratings,
`athletic ratings, school support ratings, personal ratings, and
`overall ratings. Each rating is numeric. Higher numbers often,
`but not always,10 indicate a worse rating. Each of the six
`categories has subjective components and none are formulaically
`
`
`8
`New admissions officers have their first fifty
`applications reviewed by second readers. Otherwise, second
`readers are rare and used if the case is complex, if the case
`raises issues of policy, or if the case would be helped by a second
`reader's subject-matter knowledge or geographic expertise. The
`chair of the docket may also serve as a third reader. This title
`is a misnomer, as an application need not receive a second read to
`be given a third read.
`9
`Faculty members review files if they have specific
`expertise relevant to an application. For example, a Visual and
`Environmental Studies professor might review an applicant's film.
`Some faculty members also volunteer to review files from certain
`regions.
`10 In some categories, ratings of five or six denote special
`circumstances (e.g., home or employment responsibilities that
`preclude participation in extracurricular activities) and are not
`necessarily worse than lower numbers.
`
`- 13 -
`
`

`

`assigned. Admissions officers fine tune their ratings with "+"
`and "-" marks. For example, an applicant with a "3+" academic
`rating would be stronger than an applicant with a "3", who would
`in turn be stronger than an applicant with a "3-" rating. Ratings
`of "1" are exceedingly rare and are predictive of admission in
`most categories.11 These ratings are preliminary and do not dictate
`a student's admission to Harvard. It is not uncommon for students
`with worse ratings to be admitted over students with better
`ratings. We describe the six categories to which these numeric
`ratings are assigned.
`Academic Rating
`
`The academic rating is designed to quantify a student's
`academic ability and is based largely, though not exclusively, on
`grades and standardized test scores. Other factors that go into
`the rating include less quantifiable characteristics like a
`student's demonstrated love of learning, potential for future
`academic improvement, teacher and guidance counselor letters and,
`if available, academic or faculty evaluations.
`
`
`11 During the period analyzed by the parties' experts, .07%
`of applicants received an overall rating of 1 and all were
`admitted. Of the .45% of applicants who received an academic
`rating of 1, 68.9% were admitted. Of the .31% of applicants who
`received an extracurricular rating of 1, 49.1% were admitted. Of
`the .82% of applicants who received an athletic rating of 1, 86%
`were admitted. And of the .03% of students who received a personal
`rating of 1, 69.6% were admitted. Schools support ratings of 1
`are relatively more frequent and less predictive of admission.
`
`- 14 -
`
`

`

`An academic rating of "1" signifies "summa cum laude"
`potential. Harvard's reading procedures describe "1" applicants
`as genuine scholars with near-perfect standardized test scores and
`grades. They may have even demonstrated an ability to produce
`original scholarship. "2" applicants have "magna cum laude"
`potential and are excellent students with top grades. If they
`submit SAT scores, they are typically in the mid- to high-700s in
`each testing area. ACT scores for "2" students are typically at
`or above 33. "3" students have "cum laude" potential and have SAT
`scores in the mid-600s to low-700s or ACT scores between 29 and
`32. Finally, "4," "5," and "6" applicants have "adequate
`preparation," "marginal potential," and "marginal or worse"
`achievement, respectively, with lower grades and standardized test
`scores.
`Extracurricular Rating
`
`The extracurricular rating measures a student's
`commitment to non-academic pursuits, broadly defined. A score of
`"1" indicates "truly unusual achievement," a score of "2" reflects
`"strong secondary school contribution in one or more areas such as
`class president, newspaper editor, etc.," a score of "3" represents
`"solid participation but without special distinction," and a score
`of "4" corresponds to little or no participation. The reading
`procedures instruct admissions officers to give scores of "5" or
`
`- 15 -
`
`

`

`"6" if special circumstances precluded the applicant from engaging
`in more traditional extracurriculars.
`Athletic Rating
`
` The athletic rating measures an applicant's commitment
`to athletic pursuits. "1" ratings are reserved for recruited
`varsity athletes. A "2" rating represents a "[s]trong secondary
`school contribution in one or more areas" of athletics with
`"possible leadership role(s)." A "3" is "active participation,"
`and "4" indicates little to no participation. Unlike "4" ratings
`in other categories, an athletic rating of "4" is not a negative.
`"5" or "6" ratings indicate circumstances that hinder or prevent
`participation in athletics.
`School Support Ratings
`
`Admissions officers also assess the strength of an
`applicant's high school support by reading teacher and guidance
`counselor recommendations. Each recommendation receives its own
`rating. "1" indicates "strikingly unusual support," typically
`indicated by phrases in recommendations like "the best ever." A
`"2" corresponds to "very strong support," a "3" is "above average
`positive support," "4" is "somewhat neutral or slightly negative,"
`and a "5" is "negative or worrisome." Admissions officers assign
`general school support ratings, but teacher and guidance counselor
`recommendations can also affect other rating scores (e.g., the
`academic and personal ratings).
`
`- 16 -
`
`

`

`
`
`Personal Rating
`The personal rating features heavily in this litigation.
`It attempts to measure the positive effects applicants have had on
`the people around them and the contributions they might make to
`the Harvard community. Factors considered include an applicant's
`perceived leadership, maturity, integrity, reaction to setbacks,
`concern for others, self-confidence, likeability, helpfulness,
`courage, kindness, and whether the student is a "good person to be
`around." Admissions officers generally assess an applicant based
`on the applicant's admissions essays, teacher and guidance
`counselor recommendations, accomplishments, and alumni interview
`report, but almost any information in a student's application can
`factor into the personal rating.
`According to Harvard's written reading procedures, a
`score of "1" is "outstanding," a score of "2" is "very strong,"
`and a score of "3" is "generally positive." Applicants who receive
`ratings of "4," "5," or "6" are typically described as "bland or
`somewhat negative or immature," having "questionable personal
`qualities,"
`or
`having
`"worrisome
`personal
`qualities,"
`respectively.12
`
`
`12 These descriptions were updated in 2018 to be more
`descriptive. For example, in the updated instructions, an
`applicant with a "1" personal rating is described as follows:
`"Truly outstanding qualities of character; student may display
`enormous courage in the face of seemingly insurmountable obstacles
`in life. Student may demonstrate a singular ability to lead or
`
`- 17 -
`
`

`

`Harvard maintains that race itself does not play a role
`in a student's numerical personal score. It does admit that
`experiences tied to an applicant's race -- for example, experiences
`with prejudice or discrimination and how the applicant has overcome
`this adversity -- could inform their personal rating. Before 2018,
`the reading procedures Harvard distributed to its admissions
`officers did not mention whether race should be included in
`assigning the personal rating. After SFFA brought this suit,
`Harvard modified these instructions to explicitly say that "an
`applicant's race or ethnicity should not be considered in assigning
`the personal rating." These updated instructions took effect
`beginning with the class of 2023.
`Overall Rating
`
`Before the admissions officers take a candidate to the
`committee stage, they assign an overall rating to each applicant.
`This rating takes all available information into account and is
`not a formulaic weighting of the other ratings. Harvard's reading
`procedures include guidelines for assigning an overall rating: a
`"1" signifies an "exceptional" candidate with >90% chance of
`admission; a "2" is a strong student with a 50-90% chance of
`admission; a "3" is a "solid contender" with a 20-40% chance of
`
`
`inspire those around them. Student may exhibit extraordinary
`concern or compassion for others. Student receives unqualified
`and unwavering support from their recommenders."
`
`- 18 -
`
`

`

`admission, a "4" is a "neutral" candidate with respectable
`credentials, and a "5" is an applicant with below-average
`credentials.
`Unlike the other ratings, Harvard acknowledges that
`admissions officers can and do take an applicant's race into
`account when assigning an overall rating. Race can be, but need
`not be, a basis for a "tip." So can other factors. We discuss
`tips later, after a description of interviews and the committee
`deliberations.
`Admissions Officer and Alumni Interviews
`
`Concurrent with the admissions office's review of
`applications, Harvard uses its alumni and admissions officers to
`interview applicants. Harvard provides all interviewers with an
`Interview Handbook. The Handbook provides guidance about what
`information interviewers should not discuss (e.g., the applicant's
`chance of admission) or questions they should not ask (e.g.,
`interviewers "should not ask questions that suggest students are
`being ethnically screened or go through a 'special' admissions
`process"). Alumni interviewers have access to some of the same
`information as Harvard's admissions officers. The information
`they receive does not include teacher and guidance counselor
`recommendations or transcripts. After conducting an interview,
`alumni give written comments and assign applicants numerical
`scores that are broadly similar to the scores assigned by an
`
`- 19 -
`
`

`

`admissions officer. However, alumni only assign academic,
`personal, extracurricular, and overall scores. They do not assign
`athletic or school support ratings.
`Subcommittee Meetings and Recommendations to Full Committee
`
`After reading applications, assigning preliminary
`scores, and gathering any additional information from faculty and
`alumni, Harvard decides those applicants to whom it will offer
`admission. Admissions subcommittees meet to discuss the
`applicants in their region over three to five days. First readers
`typically serve as advocates for applicants they believe should be
`admitted. Not every applicant is discussed, but it is common for
`members of the commit