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Case 1:14-cv-14176-ADB Document 416 Filed 06/15/18 Page 1 of 2
IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS
STUDENTS FOR FAIR ADMISSIONS, INC.,
Plaintiff,
v. Civil Action No. 1:14-cv-14176-ADB
PRESIDENT AND FELLOWS OF

HARVARD COLLEGE (HARVARD
CORPORATION),
Defendant.
DECLARATION OF RICHARD KAHLENBERG
I, Richard Kahlenberg, pursuant to 28 U.S.C. § 1746, declare the following:
1. I make this declaration at the request of counsel for Plaintiff Students for Fair
Admissions, Inc. (“SFFA”), and if called upon to testify as to the contents of this declaration
would testify competently thereto.
2. Attached as Exhibit A to this declaration is a true and correct copy of my expert
report signed October 16, 2017 and served on Harvard on the same day.
3. I have personal knowledge of the contents of the expert report attached as
Exhibit A.
4. I hereby verify that the contents of my expert report attached as Exhibit A are true
and accurate.
5. Attached as Exhibit B to this declaration is a true and correct copy of my rebuttal
expert report signed January 29, 2018 and served on Harvard on the same day.
6. I have personal knowledge of the contents of the rebuttal expert report attached as
Exhibit B.

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Case 1:14-cv-14176-ADB Document 416 Filed 06/15/18 Page 2 of 2
7. I hereby verify that the contents of my rebuttal expert report attached as Exhibit B
are true and accurate.
8. Attached as Exhibit C to this declaration is a true and correct copy of my
supplemental expert report signed on April 26, 2018 and served on Harvard on the same day.
9. I have personal knowledge of the contents of my supplemental expert report
attached as Exhibit C.
10. I hereby verify that the contents of my supplemental expert report attached as
Exhibit C are true and accurate.

I declare under penalty of perjury, under the laws of the United States, that the foregoing
is true and correct to the best of my knowledge.
Executed on this day, June 14, 2018.
/s/ Richard Kahlenberg

Richard Kahlenberg

2
Case 1:14-cv-14176-ADB Document 416-1 Filed 06/15/18 Page 1 of 84
EXHIBIT A

Plaintiff,
v.
Civil Action No. 1:14-cv-14176-
ADB

CORPORATION),
Defendant.
EXPERT REPORT OF RICHARD D. KAHLENBERG
i

TABLE OF CONTENTS
I. Professional Qualifications ...................................................................................................................... 1
II. Purpose ....................................................................................................................................................... 3
III. Summary of My Opinions ....................................................................................................................... 4
IV. Experience and academic research show that colleges and universities can maintain or
increase diversity through race-neutral alternatives without sacrificing academic quality. ........... 5
A. Experience at selective public universities shows that race-neutral strategies can produce
racial, ethnic, and socioeconomic diversity. ..................................................................................... 5
B. Academic research shows that selective universities (including elite private universities)
can employ effective race-neutral strategies. .................................................................................. 10
C. Well-crafted race-neutral strategies do not compromise academic quality. .............................. 13
V. Harvard failed to fully consider any of the numerous race-neutral alternatives that could
achieve the educational benefits of diversity. ..................................................................................... 15
A. Harvard could increase socioeconomic preferences. .................................................................... 17
1. Socioeconomic factors such as income and wealth are highly correlated with race. .......... 17
2. Harvard’s socioeconomic diversity is deeply lacking. .............................................................. 20
3. Harvard could make critical socioeconomic data available to admissions officers. ............ 23
4. Harvard could increase the weight it gives to socioeconomic factors................................... 25
B. Harvard could increase financial aid................................................................................................ 29
C. Harvard could reduce or eliminate preferences that favor non-minorities. .............................. 31
1. Legacy preferences ........................................................................................................................ 31
2. Donor preferences ......................................................................................................................... 33
3. The Z-list......................................................................................................................................... 34
4. Faculty and staff preferences ....................................................................................................... 36
D. Harvard could adopt admissions policies utilizing geographic diversity, including

percentage plans and the use of zip codes. .................................................................................... 36
ii

E. Harvard could increase its recruitment efforts. ............................................................................. 39
F. Harvard could increase its admission of community college transfers. ..................................... 41
G. Harvard could end early admissions................................................................................................ 42
VI. Simulations of Harvard’s data show that workable race-neutral alternatives exist. ................. 45
A. A careful simulation indicates that Harvard could achieve the educational benefits of
racial, ethnic, and socioeconomic diversity without sacrificing academic quality. ................... 45
B. Through inclusion of additional socioeconomic factors and better recruiting of

low-income students, the simulation could predict even greater racial and ethnic diversity.. 51
VII. Conclusion ........................................................................................................................................... 53
VIII. Appendices .......................................................................................................................................... 55
A. Appendix A – Curriculum Vitae ...................................................................................................... 55
B. Appendix B – Documents Relied Upon or Considered in Forming Opinion ......................... 73
C. Appendix C – Simulations ................................................................................................................ 75
iii

I. Professional Qualifications
My name is Richard D. Kahlenberg. I am a senior fellow at The Century Foundation, a non-
profit, non-partisan research organization founded in 1919. The views expressed in this report are
solely my own, and this report is submitted on my own behalf and not on behalf of any organization.
I am the author or co-author of six books and the editor of ten books. (For the full list, see
my Curriculum Vitae in Appendix A.) Most relevant here, I am the author of The Remedy: Class, Race,
and Affirmative Action (Basic Books, 1996), which was described by Harvard University’s William Julius
Wilson in the New York Times as “by far the most comprehensive and thoughtful argument thus far
for . . . affirmative action based on class.”1 The book was named one of the best books of the year by
the Washington Post.2
In 2003, Diverse Issues in Higher Education, a widely read industry magazine on diversity
issues, called me “arguably the nation’s chief proponent of class-based affirmative action in higher
education admissions.”3 In 2013, The New York Times identified me as “perhaps the most prominent
self-described progressive with doubts about the current version of affirmative action.”4 And in 2016,
reflecting on my time researching and writing about higher education, William G. Bowen, the former
president of Princeton University, and Michael S. McPherson, the former president of Macalester

1
William Julius Wilson, “Class Consciousness,” New York Times Book Review, July 14, 1996.
2
Norman Ornstein, “Social Issues,” Washington Post Book World, December 8, 1996.
3
Ronald Roach, “Class-Based Affirmative Action,” Diverse Issues in Higher Education, June 19,
2003.
4
David Leonhardt, “The Leading Liberal Against Affirmative Action,” New York Times, March 9,
2013.
1

College, wrote that I deserve “more credit than anyone else for arguing vigorously and relentlessly for
stronger efforts to address disparities by socioeconomic status.”5
I am also the editor of four books that address, in part or in whole, race-neutral affirmative
action strategies:
• America’s Untapped Resource: Low-Income Students in Higher Education (Century Foundation,

2004);
• Rewarding Strivers: Helping Low-Income Students Succeed in College (Century Foundation, 2010);
• Affirmative Action for the Rich: Legacy Preferences in College Admissions (Century Foundation,
2010); and
• The Future of Affirmative Action: New Paths to Higher Education Diversity after Fisher v. University
of Texas (Century Foundation/Lumina Foundation, 2014).
My law review articles on race-neutral alternatives to racial preferences include:
• “Getting Beyond Racial Preferences: The Class-Based Compromise,” 45 American

University Law Review 721 (February 1996);
• “Class-Based Affirmative Action,” 84 California Law Review 1037 (July 1996); and
• “Reflections on Richard Sander’s Class in American Legal Education,” 88 Denver University
Law Review 719 (September 2011).
I also have researched and published numerous articles on race-neutral alternatives to racial
preferences in prominent publications, including The New York Times, The Wall Street Journal, The
Washington Post, and The New Republic. (See all publications in Appendix A). Over the years, I have
served on numerous conference panels giving me an opportunity to interact with college admissions
officers at a number of selective colleges.
Before coming to The Century Foundation, I was a Fellow at the Center for National Policy,
a visiting associate professor of constitutional law at George Washington University, and a legislative

5
William G. Bowen & Michael S. McPherson, Lesson Plan: An Agenda for Change in American
Higher Education (Princeton University Press, 2016), p. 35.
2

assistant to Senator Charles S. Robb (D-VA). I graduated from Harvard College and Harvard Law
School.
I also serve on the advisory boards of the Pell Institute and the Albert Shanker Institute, as
well as the Research Advisory Panel of the National Coalition for School Diversity. In 2013, I was the
winner of the William A. Kaplin Award for Excellence in Higher Education Law and Policy
Scholarship.
II. Purpose
In 2014, I was retained in this matter by Students for Fair Admissions, Inc. (SFFA) to provide
an opinion regarding the availability and feasibility of race-neutral alternatives to Harvard’s use of race
as a factor in undergraduate admissions. In particular, I was asked to examine whether Harvard could
implement workable race-neutral alternatives that would produce the educational benefits of diversity.
The rate for my services in this matter is $295 an hour.
In making my opinions, I draw first upon my extensive knowledge of the history and study of
race-neutral alternatives. See Section I, supra, and Appendix A. I have authored, co-authored, edited,
or reviewed virtually every major study or analysis on race-neutral alternatives from the past 20 years.
I have also reviewed substantial portions of the voluminous evidence that has been produced by
Harvard in this case, including numerous deposition transcripts and several internal reports from
Harvard’s Office of Institutional Research (OIR). A full list of the documents and transcripts I
reviewed is provided at Appendix B. Finally, I have reviewed and had access to the admissions data,
analysis, and conclusions from SFFA’s other expert witness, Duke Professor Peter Arcidiacono.
It is also important to understand what I have not reviewed. I did not have access to some of
the data that I would have liked to review—either because Harvard has declined to maintain the
information or because the Court permitted Harvard to withhold the information from SFFA. This
3

includes, among other things, precise data about student income, wealth, and zip code of residence.
These data would have been helpful to me, as they would have allowed me to consider additional race-
neutral strategies and evaluate whether they would be workable as possible replacements for Harvard’s
use of race in admissions decisions. Nevertheless, I am confident about the opinions I am able to state
below.
I have not testified as an expert at trial or deposition in the past four years.
III. Summary of My Opinions
The U.S. Supreme Court has long stated that student body diversity—by race and also by
socioeconomic status—offers important educational benefits.6 But because of the heavy costs
associated with using race in governmental decision making, the Fourteenth Amendment “forbids the
use even of narrowly drawn racial classifications except as a last resort.”7 In Fisher v. University of Texas,
therefore, the Supreme Court held that colleges cannot employ racial preferences unless “no workable
race-neutral alternatives would produce the educational benefits of diversity.”8 Indeed, in pursuing the
compelling goal of diversity, universities bear “the ultimate burden of demonstrating, before turning
to racial classifications, that available workable race-neutral alternatives do not suffice.”9
With these guideposts in mind, I am prepared to give testimony on three main opinions to a
reasonable degree of professional certainty.

6
Grutter v. Bollinger, 539 U.S. 306, 330 (2003).
7
City of Richmond v. J.A. Croson Co., 488 U.S. 469, 519 (1989) (Kennedy, J., concurring in part
and concurring in the judgment).
8
133 S. Ct. 2411, 2420 (2013).
9
Id.
4

First, there is extensive empirical evidence and academic research documenting the myriad
(and innovative) ways in which colleges and universities such as Harvard can use race-neutral
alternatives to produce the educational benefits of diversity.
Second, it is apparent from my review of the deposition testimony and relevant evidence
produced that, in the years between Fisher I and the filing of this lawsuit, Harvard failed to fully
consider any of the numerous available race-neutral alternatives that could achieve the educational
benefits of diversity. These include:
• Increasing socioeconomic preferences;

• Increasing financial aid;
• Reducing or eliminating preferences for legacies, donors, and relatives of faculty and staff;
• Adopting policies using geographic diversity, including percentage plans and the use of zip
codes;
• Increasing recruitment efforts;
• Increasing the admission of community college transfers; and
• Eliminating the Early Action admissions option.
Finally, after reviewing Harvard’s admissions data and other relevant socioeconomic data, I
have concluded that there are race-neutral alternatives available that could provide Harvard with the
educational benefits of diversity without the use of racial preferences.
IV. Experience and academic research show that colleges and universities can maintain
or increase diversity through race-neutral alternatives without sacrificing academic
quality.
A. Experience at selective public universities shows that race-neutral strategies

can produce racial, ethnic, and socioeconomic diversity.
For years, supporters of racial preferences argued that no workable alternatives existed for
creating racial diversity. In the words of Justice Blackmun in his 1978 Bakke opinion, “I suspect that
it would be impossible to arrange an affirmative action program in a racially neutral way and have it
5

successful. To ask that this be so is to demand the impossible. In order to get beyond racism, we must
first take account of race. There is no other way.”10
Since then, however, numerous universities have proven him wrong. In 2012, my colleague
Halley Potter and I examined ten leading universities where racial preferences had been banned and
found that seven of the ten—the University of Texas at Austin, Texas A&M, the University of
Washington, the University of Florida, the University of Georgia, the University of Nebraska, and the
University of Arizona—had used race-neutral alternatives to meet or exceed the racial diversity levels
they had obtained in the past using racial preferences.11 These schools obtained such results through
a variety of approaches, including creating plans to encourage geographic and socioeconomic diversity,
bolstering financial aid policies, adopting programs that could attract disadvantaged students from
underrepresented demographics with the promise of financial support, and building partnerships with
K-12 schools to increase the pool of college-ready applicants.12
Many of these colleges had been adamant that race-neutral alternatives could never succeed.
For example, in 1998, the University of Washington was forced to abandon racial preferences after a
ballot initiative was passed banning the practice. At the time, Richard McCormick, the president of
the University of Washington, spoke out strongly against the referendum and made dire predictions
about its effect on racial diversity. But the University ultimately crafted new approaches to achieve
diversity, including recruiting at predominantly minority high schools, expanding financial aid, and

10
Regents of University of California v. Bakke, 438 U.S. 265, 407 (1978) (Blackmun, J., concurring).
11
Richard D. Kahlenberg & Halley Potter, A Better Affirmative Action: State Universities that Created
Alternatives to Racial Preferences (Century Foundation), pp. 26-61.
12
Id. at 76.
6

considering such factors as “personal adversity” and “economic disadvantage” in its admissions
decisions. By 2004, “the racial and ethnic diversity of the UW’s first-year class had returned to its pre-
1999 levels,” when race was still considered in admissions, and the new admissions policy also
increased economic diversity among the student body.13
Similarly, in 2000, the University of Georgia adopted a number of race-neutral strategies after
a federal court struck down the university’s use of race in admissions.14 In particular, the university
began using a number of socioeconomic factors in its admissions process, including parental education
and high school environment, began admitting the valedictorian and salutatorian from every high
school class, and stopped giving preference to children of alumni. Although alumni opposed the end
of legacy admissions, the university “has not encountered noticeable fundraising challenges as a result
of the change.”15 Although minority enrollment initially dropped after the ban on using race in
admission, it has since moved upward and “the years since 2000 have shown the university moving in
the right direction, toward increased racial, ethnic, socioeconomic, linguistic, and geographic diversity
on campus.”16
The other three universities we examined—the University of Michigan, UCLA, and the
University of California Berkeley—had not reached their prior levels of racial diversity. As an initial

13
Richard L. McCormick, “Converging Perils to College Access for Racial Minorities: Examples of
Responses that Work from Washington State and New Jersey,” in The Future of Affirmative Action:
New Paths to Higher Education Diversity after Fisher v. University of Texas, ed. Richard D.
Kahlenberg (New York: Century Foundation/Lumina Foundation, 2014), supra, p. 118.
14
See Johnson v. Board of Regents, 106 F. Supp. 2d 1362 (S.D. Ga. 2000).
15
Nancy G. McDuff & Halley Potter, “Ensuring Diversity Under Race-Neutral Admissions at the
University of Georgia,” in The Future of Affirmative Action, supra, p. 126.
16
Id. at 123.
7

matter, the data on African-American enrollment at Michigan are problematic. In 2010, the
Department of Education changed its methodology for categorizing students by race and ethnicity,
requiring colleges to report separately students who are members of two or more races. “So a drop in
the number of black students reported at a university from 2009 to 2010,” a Chronicle of Higher
Education article noted, “doesn’t necessarily mean that there were actually fewer black students.”17 In
fact, when the new “mark one or more” races methodology was proposed, civil rights groups raised
concerns that it would result in an artificial decline in African-American and Hispanic representation
in government statistics.18
To the extent that race-neutral alternatives have not been fully effective at these universities,
however, it is mostly because of their failure to utilize them fully.19 Michigan still gives preferences in
admission to the children of alumni (who, at selective colleges, tend to be disproportionately non-

17
Jonah Newman, “What Does the Education Dept. Know About Race?” Chronicle of Higher
Education, April 28, 2014. Consider, also, the case of the University of Virginia (UVA), which is not
subject to a voter-imposed ban on racial preferences and continues to use race as a factor in
admissions. In 2008, before students could use the multi-race category, UVA enrolled 1,199 African-
American students. By 2012, after the change in categories was put in place, the number of African
Americans was 946, suggesting a dramatic 21.1 percent drop. But when the 2012 data includes the 206
students who identified as African American and some other ethnicity (for a grand total of 1,152
African Americans under the old methodology), the drop was 3.9 percent. In other words, about 80
percent of the apparent decline in black enrollment at UVA was due to reporting changes. McGregor
McCance, “Analysis of U.Va.’s Incoming Class Shows Consistent Quality with Dynamic Change,”
UVA Today, May 16, 2013. Harvard has also seen changes in its methodology of reporting race and
ethnicity. See Fitzsimmons deposition, pp. 93-101.
18
See Kim M. Williams, Mark One or More: Civil Rights in Multicultural America (University of
Michigan Press, 2008).
19
U.C. Berkeley, UCLA, and the University of Michigan have also faced a special disadvantage in
recruiting minority students because they have a national pool of applicants and restrictions on using
race that were imposed by a state referendum rather than a federal court. As a result, out-of-state
competitors could continue to use racial preferences.
8

minority)20 and still provides substantial “merit” aid to wealthy students, thereby diverting funds from
need-based aid.21 U.C. Berkeley and UCLA currently employ only family income as the primary
determinant of economic disadvantage and thus are not using more accurate measures of
socioeconomic disadvantage.22 As discussed further below, using wealth alongside income would
better capture economic disadvantage than does income alone and could lead to greater racial diversity.
It is significant to note that these types of race-neutral approaches also produce much higher
levels of socioeconomic diversity than do race-based admissions.23 The enhancement of
socioeconomic diversity that flows from these plans is critical from an educational and legal
perspective, because the educational benefits of diversity arise from the interchange of ideas and
experiences with those from different financial circumstances just as surely as those from different
racial backgrounds.24

20
John Brittain & Eric L. Bloom, “Admitting the Truth: The Effect of Affirmative Action, Legacy
Preferences, and the Meritocratic Ideal on Students of Color in College Admissions,” in Affirmative
Action for the Rich: Legacy Preferences in College Admissions, ed. Richard D. Kahlenberg (Century
Foundation Press, 2010), pp. 127-32.
21
Richard D. Kahlenberg, “A Fresh Chance to Rein in Racial Preferences,” Wall Street Journal,
October 13, 2013.
22
Richard Sander, “The Use of Socioeconomic Affirmative Action at the University of California,” in
The Future of Affirmative Action, supra, p. 101 (that U.C. campuses look at parental education and
income).
23
See Matthew N. Gaertner, “Advancing College Access with Class-Based Affirmative Action: The
Colorado Case,” in The Future of Affirmative Action, supra, p. 181, Table 14.3; Anthony P. Carnevale,
Stephen J. Rose, & Jeff Strohl, “Achieving Racial and Economic Diversity with Race-Blind
Admissions Policy,” in The Future of Affirmative Action, supra, p. 192, Table 15.2.
24
See Grutter, 539 U.S. 306, 324 (2003); Bakke, 438 U.S. 265, 316 (1978). Harvard admissions Dean
Bill Fitzsimmons also testified that “economic background is a vital piece of putting together a class
that is educationally beneficial for all its members.” Fitzsimmons deposition, pp. 421-24.
9

In California, for example, students from economically disadvantaged backgrounds were
significantly more likely to be admitted to universities in California after the State banned racial
preferences.25 Likewise, when UCLA Law School adopted a socioeconomic affirmative action
program, the proportion of students who were the first in their families to attend college roughly
tripled.26
It seems hardly an accident, therefore, that the University of California dominates the list of
schools “doing the most for low-income students” in the New York Times’ “College Access Index” in
2015.27 Similarly, of the top seven institutions for social mobility, six were from the UC system, and
the seventh, the University of Florida, has also implemented race-neutral strategies in the face of a
racial preference ban.28
B. Academic research shows that selective universities (including elite private

universities) can employ effective race-neutral strategies.
In the wake of Supreme Court rulings on affirmative action, think tanks and the academic
community have been examining in earnest the use of race-neutral strategies to promote racial, ethnic,
and socioeconomic diversity on campuses. For example, the Lumina Foundation teamed up with The
Century Foundation to produce a 299-page volume (which I edited) that brought together both
supporters and skeptics of racial preferences to consider the meaning of the Supreme Court’s rulings

25
See Kate Antonovics & Ben Backes, “The Effect of Banning Affirmative Action on College
Admissions Policies and Student Quality,” The Journal of Human Resources 49, no. 2 (Spring 2014):
p. 306.
26
Sander, “The Use of Socioeconomic Affirmative Action,” supra, p. 105.
27
David Leonhardt, “California’s Upward-Mobility Machine,” New York Times, September 16, 2015.
28
Id.; Kahlenberg & Potter, A Better Affirmative Action, supra.
10

and to examine the efficacy of race-neutral strategies.29 The College Board’s Access and Diversity
Collaborative produced papers on race-neutral policies, including “The Playbook: A Guide to Assist
Institutions of Higher Education in Evaluating Race-and Ethnicity-Neutral Policies in Support of the
Mission-Related Diversity Goals.”30 And the American Council on Education surveyed 338 colleges
on their use of race-neutral strategies.31
As a result, valuable research has emerged identifying concrete ways in which universities can
increase racial diversity through race-neutral means. For example, in 2014, Professors Anthony
Carnevale, Stephen Rose, and Jeff Strohl of Georgetown University examined how socioeconomic
affirmative action programs, percentage plans, or a combination of the two, could work at the nation’s
most selective 193 institutions.32 The authors found that if these schools used class-based affirmative
action—which would include a mix of socioeconomic considerations (such as parental education,
income, savings, and school poverty concentrations)—the combined African-American and Hispanic
representation would rise from 11% to 13%—all without the use of racial preferences. Under a
different simulation (in which the top 10% of test takers in every high school was among the pool

29
Kahlenberg (ed), The Future of Affirmative Action, supra.
30
See, e.g., Arthur L. Coleman, Teresa E. Taylor, & Katherine E. Lipper, “The Playbook: A Guide to
Assist Institutions of Higher Education in Evaluating Race- and Ethnicity-Neutral Policies in Support
of the Mission-Related Diversity Goals,” College Board and Education Counsel, October 2014,
http://educationcounsel.com/wp-content/uploads/2015/06/ADC%20Playbook%20October%
202014%20(for%20posting%20to%20website).pdf.
31
Lorelle L. Espinosa, Matthew N. Gaertner, & Gary Orfield, “Race, Class, and College Access:
Achieving Diversity in a Shifting Legal Landscape” American Council on Education, 2015,
http://www.acenet.edu/news-room/Documents/Race-Class-and-College-Access-Achieving-
Diversity-in-a-Shifting-Legal-Landscape.pdf.
32
Carnevale, Rose, & Strohl, “Achieving Racial and Economic Diversity with Race-Blind Admissions
Policy,” in The Future of Affirmative Action, supra; see also David Leonhardt, “If Affirmative Action
Is Doomed, What’s Next?” New York Times, June 17, 2014.
11

admitted to this collection of schools) the authors found that African-American and Hispanic
representation would rise from 11% to 17%. Under each of these scenarios, socioeconomic diversity
and mean SAT scores would also rise.33
Similarly, in 2014, Matthew Gaertner examined admissions at the University of Colorado at
Boulder and found that a sophisticated socioeconomic affirmative action plan that gave considerable
weight to economic disadvantage could achieve even more racial diversity than using racial preferences.
Based on national research, the University of Colorado devised an index of socioeconomic
disadvantage that looked at a number of factors, including “the applicant’s native language, single-
parent status, parents’ education level, family income, the number of dependents in the family, whether
the applicant attended a rural high school, the percentage of students from the applicant’s high school
eligible for free or reduced-price lunch (FRL), the school-wide student-to-teacher ratio, and the size
of the twelfth-grade class.” Under the hypothetical program, the university gave socioeconomically
disadvantaged students a preference in admissions that was larger than what African-American and
Hispanic students had been provided in the past. When simulations were run, Gaertner found that
not only would socioeconomic diversity increase, but the acceptance rates of underrepresented

33
Carnevale, Rose, & Strohl, “Achieving Racial and Economic Diversity with Race-Blind Admissions
Policy,” in The Future of Affirmative Action, supra, p. 192, Tables 15.1, 15.2. The study’s breakdown
is as follows: Status quo (4% African American, 7% Hispanic; 14% from the bottom socioeconomic
half; 1230 mean SAT); Admissions by test score (1% African American, 4% Hispanic; 15% bottom
socioeconomic half; 1362 mean SAT); Socioeconomic affirmative action (3% African American, 10%
Hispanic; 46% from bottom socioeconomic half; 1322 mean SAT); Top 10% of test takers from every
high school (6% African American, 11% Hispanic; 31% from bottom socioeconomic half; 1254 mean
SAT). Id.
12

minority applicants would also increase—from 56 percent under race-based admissions to 65 percent
under class-based admissions.34
In addition, in a 2015 study, Professor Sigal Alon found that if the most selective 115 American
universities instituted broad reform—including effectively eliminating35 legacy, athletic,and racial
preferences—a socioeconomic boost “could not only replicate the current level of racial and ethnic
diversity at elite institutions but even increase it.”36 Professor Alon’s model looked at three variations:
(1) a “socioeconomic status” model, which looks at family-based economic disadvantages; (2) a
“structural” model, which looks at neighborhood-based economic disadvantages; and (3) a
“multidimensional” model, which looks at both. Professor Alon found that racial diversity would meet
or exceed current admissions and socioeconomic diversity would increase under all three models.
Meanwhile, because mean SAT scores would remain steady, “all this could be done without
jeopardizing academic selectivity.”37
C. Well-crafted race-neutral strategies do not compromise academic quality.
Critics may argue that race-neutral alternatives will reduce academic standards. But experience
and research refute that claim. For example, after UCLA Law School adopted a socioeconomic

34
Gaertner, “Advancing College Access with Class-Based Affirmative Action,” supra, p. 181, Table
14.3.
35
Alon effectively eliminates athletic, legacy, and racial preferences by replacing those students in the
weakest academic quartile—whom she presumes includes those for whom preferences were
decisive—with the most academically competitive economically disadvantaged students of all races.
36
Sigal Alon, Race, Class, and Affirmative Action (Russell Sage Foundation, 2015), pp. 254-56.
37
Id. at 256.
13

preferences program, the school’s California bar exam passage rate rose to an all-time high.38 Likewise,
in a national simulation, Professors Carnevale and Rose found that top universities could nearly
quadruple the proportion of students from the bottom socioeconomic half (from 10% of all students,
the level they found in their research, to 38%) without any change in graduation rates.39
These studies are buttressed by a growing body of research on “undermatching,” in which
highly qualified students do not apply to selective colleges. Professor Caroline Hoxby of Stanford and
Professor Christopher Avery of Harvard have found that 35,000 low-income students are high
achieving, but that only one-third apply to one of the country’s 238 most selective colleges. Of those
low-income, high-achieving students, roughly 2,000 are African American and 2,700 are Hispanic.40
Additional research has found that 43 percent of students who are academically qualified to gain
admission to selective colleges undermatch, and that many are Hispanic and African American.41 In
raw numbers, that translates into 4,000 Hispanic and 2,000 African-American SAT takers who have
the strongest academic credentials yet do not attend a highly selective school.42 This research indicates
that there is enormous potential to increase socioeconomic and racial diversity without in any way

38
Sander, “The Use of Socioeconomic Affirmative Action at the University of California,” supra,
p. 107.
39
Anthony P. Carnevale & Stephen J. Rose, “Socioeconomic Status, Race/Ethnicity, and Selective
College Admissions,” in America’s Untapped Resource: Low-Income Students in Higher Education,
ed. Richard D. Kahlenberg (The Century Foundation Press, 2004), pp. 148-49.
40
Caroline M. Hoxby & Christopher Avery, “The Missing ‘One-Offs’: The Hidden Supply of High-
Achieving, Low Income Students,” NBER Working Paper no. 18586, December 2012, p. 34.
41
Alexandria Radford & Jessica Howell, “Addressing Undermatch: Creating Opportunity and Social
Mobility,” in The Future of Affirmative Action, supra, p. 134,
42
Id.
14

sacrificing academic quality if colleges were aggressively to recruit high-achieving, low-income
students.
V. Harvard failed to fully consider any of the numerous race-neutral alternatives that
could achieve the educational benefits of diversity.
The Supreme Court’s instructions regarding race-neutral alternatives are clear. Colleges must
prove that “no workable race-neutral alternatives would produce the educational benefits of
diversity.”43 This requirement has been widely discussed in the academic community.44 Indeed, in a
2013 article in the Chronicle of Higher Education, Harvard professor Thomas Kane and current
Harvard Education School Dean James Ryan noted that the Fisher decision means that “[t]o consider
race in admissions . . . institutions must prove to courts that race-neutral alternatives—such as relying
on socioeconomic status or where students live—will not work.”45 The two Harvard faculty members
then suggested ways in which schools could assess the availability of race-neutral alternatives.46 They
warned that “few universities and colleges are prepared to answer the questions that courts will soon
be asking. If they fail to prepare convincing answers, they will lose. And, having been put on notice,

43
Fisher, 133 S. Ct. 2411, 2420 (2013).
44
See, e.g., Arthur L. Coleman & Teresa E. Taylor, “Emphasis Added: Fisher v. University of Texas
and Its Practical Implications for Institutions of Higher Education,” in The Future of Affirmative
Action, supra, 50-51.
45
Thomas J. Kane and James E. Ryan, “Why ‘Fisher’ Means More Work for Colleges,” Chronicle of
Higher Education, July 29, 2013.
46
They noted: “To quantify such costs, colleges could review their admissions folders (or at least a
representative sample of them) and have admissions officers flag the family-background factors that
are potential race-neutral alternatives. Analysts could then estimate how much those factors would
have to be weighted (and other factors diminished) in order to produce the outcomes now produced
with race-conscious admissions. They could then compare the results of race-conscious and race-
neutral policies on individual dimensions—like test scores or high-school grades—or on combinations
of traits such as academic indices.” Id.
15

responsibility for that loss will be with our college and university leaders, not our courts.”47 Evidence
in this case shows that the professors sent a draft of this article to Dean Fitzsimmons seeking his input
in advance of publication.48
Despite all this, it appears that Harvard—one of the nation’s great research universities—
conducted no investigation to see whether race-neutral strategies could yield the educational benefits
of diversity, as required by law. Dean Fitzsimmons testified that Harvard has conducted no formal
analysis of how race-neutral alternatives might work at the college or what would happen if the school
transitioned to a race-blind system.49 Similarly, Director McGrath testified that she could not recall
any discussion of the possibility of going to a race-blind admissions system.50 And Sally Donahue,
Director of Financial Aid, testified that she could not recall ever discussing alternatives to using race
in admissions, such as socioeconomic status.51 It appears that the sum total of Harvard’s investigation
into race-neutral alternatives is a disbanded committee led by Dean James Ryan and the establishment
of a new committee with just three members (Dean Fitzsimmons, Dean Michael Smith, and Dean
Rakesh Khurana) that as of August 3, 2017 had met only once.52

47
Id.
48
Harvard documents, 7799-7802.
49
Fitzsimmons deposition, pp. 137, 168, 180-81.
50
McGrath deposition, pp. 255, 369. See also Faust deposition, pp. 50-51; Smith deposition, pp. 62-
64.
51
Donahue deposition, pp. 70-72.
52
Fitzsimmons deposition, pp. 213-14, 224-26; Harvard’s Response to Plaintiff’s Second Set of
Interrogatories, pp. 18-19. See also Harvard documents, 72381 (Dean Smith memo calling the
formation of the committee on June 9, 2017).
16

Throughout this period of time, there were numerous race-neutral alternatives available that
have the potential to obtain the educational benefits of diversity, and which Harvard certainly could
have considered and potentially adopted. I discuss these options below.
A. Harvard could increase socioeconomic preferences.
1. Socioeconomic factors such as income and wealth are highly

correlated with race.
Well-crafted race-neutral alternatives, while not providing a racial preference, are nevertheless
cognizant of the ways in which past and present racial discrimination shapes opportunities in America.
Race-neutral alternatives based on socioeconomic factors work to produce racial diversity because
economic disadvantage is often influenced by the legacy of racial discrimination. This helps explain
why African Americans and Hispanics on average have lower incomes and smaller savings than whites
do, and why even middle-class blacks live in neighborhoods with higher poverty rates than low-income
whites.53
Research finds that when socioeconomic affirmative action programs are constructed using a
wide variety of variables—not just parental income, but factors such as wealth/net worth, and
neighborhood and school levels of poverty that are correlated with race—they can produce substantial
racial and ethnic diversity, because this wider array of socioeconomic factors better captures the
economic impact of ongoing and past racial discrimination than does income (or race) alone.
For example, Professor Dalton Conley of New York University finds that a family’s wealth
(rather than income) better reflects the nation’s legacy of slavery and segregation because wealth is

53
John R. Logan, “Separate and Unequal: The Neighborhood Gap for Blacks, Hispanics and Asians
in Metropolitan America,” US2010 Project, July 2011, p. 5.
17

handed down from generation to generation.54 African Americans typically have incomes that are 70%
of white incomes, but African-American wealth is just 10% of white wealth.55 Moreover, parental
wealth and education are far more powerful predictors of college completion than race or income,
Conley finds.56 Wealth matters more than income because “educational advantages are acquired
through major capital investments and decisions,” such as purchasing a home in a neighborhood with
good public schools.57 And because concentrated poverty is highly correlated with race, a student’s
family’s wealth will capture the lasting effects of discrimination in the housing market.58 Colleges that
give a preference to students growing up in concentrated poverty will acknowledge the challenges that,
in the aggregate, poor minority children face much more often than poor white children.
UCLA Law School is an exemplar of an institution that examined factors such as wealth and
concentrated poverty to obtain racial diversity. In the fall 2011 entering class, African Americans were
11.3 times as likely to be admitted under the socioeconomic status (SES) program as other programs,
and Latinos were 2.3 times as likely to be admitted. African Americans constituted 20.4% of those
admitted under the SES program (22 of 108) compared with 0.8% of admissions for non-SES

54
Dalton Conley, “The Why, What, and How of Class-Based Admissions Policy,” in The Future of
Affirmative Action, supra, p. 209. See also Lisa J. Dettling, Joanne W. Hsu, Lindsay Jacobs, Kevin B.
Moore, & Jeffrey P. Thompson, “Recent Trends in Wealth-Holding by Race and Ethnicity: Evidence
from the Survey of Consumer Finances,” Federal Reserve FEDS Notes, September 27, 2017 (Black
median family wealth was 10.3% of white median family wealth in 2016, and Hispanic wealth was
12.1% of white wealth. Meanwhile, black median family income was 57.8% of white median family
income and Hispanic income was 62.9% of white income.).
55
Conley, “The Why, What, and How of Class-Based Admissions Policy,” supra, p. 209.
56
Id. at 206.
57
Id. at 207.
58
Logan, “Separate and Unequal,” supra, pp. 4-6.
18

programs (12 of 1,363). Likewise, Hispanics constituted 35.2% of SES admits (38 of 108) compared
with 5.5% for non-SES admits (75 of 1,363). Even though the SES program admitted 108 students,
compared with 1,363 under non-SES, the absolute number of African Americans admitted under the
SES program (22) exceeded the number admitted under other programs (12).59 Similarly, Professor
Richard Sander and Aaron Danielson of UCLA found in a 2014 analysis that richer measures of
socioeconomic status, above and beyond income to include factors such as wealth and neighborhood
poverty levels, significantly increased the correlation between race and socioeconomic status and the
racial dividend of class-based affirmative action.60
Some criticize race-neutral alternatives as subterfuges seeking a desired racial result covertly.
But this thinking has it exactly backwards because the beneficiaries are a very different subset of
African-American and Hispanic students than those who usually benefit from racial preferences. The
new beneficiaries are more likely to be working-class and actually to live in segregated neighborhoods.
As Georgetown University Law Professor Sheryll Cashin notes, place-based approaches help “those
who are actually disadvantaged by structural barriers” rather than enabling “high-income, advantaged
blacks to claim the legacy of American apartheid.”61
Class-based preferences also avoid two important costs associated with racial preferences: a
reinforcement of negative stereotypes and an increase in racial and ethnic antagonism.62 Polls find that

59
Kahlenberg & Potter, “A Better Affirmative Action,” p. 14, supra.
60
Richard Sander & Aaron Danielson, “Thinking Hard About ‘Race-Neutral’ Admissions,” 47
University of Michigan Journal of Law Reform 967, 990-991 (2014).
61
Sheryll Cashin, Place Not Race: A New Vision of Opportunity in American (Boston: Beacon Press,
2014), p. 78.
62
Bakke, 438 U.S. 265, 298-99.
19

most Americans (including a majority of black respondents) oppose the use of race or ethnicity as a
factor in college admissions, but large majorities favor the consideration of economic disadvantage.63
Because students of all races who have overcome economic disadvantage are seen as deserving of
special consideration, such students are unlikely to face the stigma or resentment that has been directed
toward recipients of racial preferences.64
2. Harvard’s socioeconomic diversity is deeply lacking.
Both external studies and internal data from Harvard suggest that Harvard’s student body is
deeply lacking in socioeconomic diversity. Most notably, in 2017, Professor Raj Chetty (a former
Harvard professor now at Stanford University) and colleagues examined a unique data set of 30 million
college students and financial data from the IRS and concluded that “approximately 3% of children
at Harvard in the 1980-82 birth cohorts come from the lowest income quintile of families, compared
with more than 70% from the top quintile.”65 Put differently, Harvard had 23 times as many high-
income students as low-income students. The authors further found that “15.4% of students at
Harvard come from families in the top 1% of the income distribution—about the same number as

63
Scott Jaschik, “Poll: Public Opposes Affirmative Action,” Inside Higher Ed, July 8, 2016 (citing
Gallup poll finding 63%-36% opposition to race as a factor in college admissions, but 61%-39%
support for considering family economic circumstances in admissions).
64
Paul M. Sniderman & Thomas Leonard Piazza, The Scar of Race (Harvard University Press, 1993),
pp. 102-04. See also Robert P. Jones, Daniel Cox, Betsy Cooper, & Rachel Lienesch, “Anxiety,
Nostalgia and Mistrust: Findings from the 2015 American Values Survey,” Public Religion Research
Institute, November 17, 2015, p. 5 (finding resentment associated with racial preferences).
65
Raj Chetty, John N. Friedman, Emmanuel Saez, & Nicholas Turner, and Danny Yagan, “Mobility
Report Cards: The Role of Colleges in Intergenerational Mobility,” July 2017, p. 14, http://
www.equality-of-opportunity.org/papers/coll_mrc_paper.pdf.
20

from the bottom three quintiles combined.”66 In other words, about as many students at Harvard
came from the top 1% of the income distribution as the bottom 60%. Similarly, looking at data from
the cohort born in 1991 (most of whom ended up in the class of 2013), Chetty found that more
Harvard students came from the most affluent 10% of the population than came from the bottom
90%.67
Harvard testimony and evidence in this case reinforces these findings. According to Sally
Donahue, the number of students who qualify for Harvard Financial Aid Initiative (with family
incomes at or below $80,000) has remained at roughly the 25% level for a decade.68 This means that
roughly the bottom half of the income distribution (among 45-54 year olds)69 has just a 25%
representation at Harvard—and this proportion has remained constant over time. According to
Harvard documents, in the class of 2011, 302 students came from families making less than $60,000,
and a total of 430 below $80,000 in a class of more than 1600.70 In addition, Harvard’s documents
show that in the freshman year class of 2011, 38% of Harvard students were “full pay,” meaning they
came from families in the top 4% of the income distribution.71

66
Id.
67
See “Economic Diversity and Student Outcomes at Harvard University,” New York Times,
http://www.nytimes.com/interactive/projects/college-mobility/harvard-university (summary of
Chetty data).
68
69
See Bernadette D. Proctor, Jessica L. Semega, & Melissa A. Kollar, “Income and Poverty in the
United States: 2015,” U.S. Census Bureau, September 2016, pp. 6-7, http://www.census.gov/
newsroom/press-releases/2016/cb16-158.html. (For those headed by individuals ages 45-54—a
typical age for parents with college aged students—the median income was $73,857 in 2015.)
70
Harvard documents, 77540.
71
Harvard documents, 77593, 77605.
21

By comparison, at top flagship public universities such as U.C. Berkeley and UCLA, Chetty’s
data show only about a quarter of the percentage of students came from the top 1% by income as at
Harvard. A larger percentage came from the bottom 20% of the income distribution and a
substantially lower percentage from the top 20%.72
Harvard’s own data also show that the proportion of students who are first generation hovered
around just 10% for the classes of 2007-2016. Stunningly, in every one of those classes, the number
of legacy students outnumbered the number of first-generation students.73 This is remarkable in a
nation where there are 382 times as many American adults age 25 and older without a college degree
(143 million) as adults in the world with a Harvard degree (375,000).74 If African-American students
were as underrepresented in Harvard’s population as first-generation college students currently are,
blacks would constitute just 2.25% of the undergraduate student body—something Harvard would
presumably find intolerable.75
Another way to consider socioeconomic diversity is eligibility for the federal Pell grant for
students needing financial aid to pay for college. Using federal data, U.S. News & World Report found

72
See “Economic Diversity and Student Outcomes at the University of California, Berkeley,”
New York Times, http://www.nytimes.com/interactive/projects/college-mobility/university-of-
california-berkeley (summary of Chetty data); See “Economic Diversity and Student Outcomes at the
University of California, Los Angeles,” New York Times, http://www.nytimes.com/interactive/
projects/college-mobility/university-of-california-los-angeles (summary of Chetty data).
73
74
Camille L. Ryan & Kurt Bauman, “Educational Attainment in the United States: 2015,” U.S. Census
Bureau, March 2016, p. 2, Table 1; Christina Pazzanese, “Harvard’s Alumni Impact,” Harvard Gazette,
December 8, 2015.
75
Ryan & Bauman, “Educational Attainment in the United States: 2015” (68% of adults age 45-64
lack a bachelor’s degree, compared with 10% of Harvard undergraduates who are first generation
college students. This 15% representation rate, if applied to African Americans (who make up 15%
of the population) would yield a student body that is 2.25% black.)
22

that the proportion of Harvard undergraduates receiving Pell grants in the 2015-2016 school year was
18%. By comparison, at U.C. Berkeley, 33% received Pell grants, and at UCLA the figure was 37%,
more than double Harvard’s proportion. (While some Ivy League colleges had even fewer Pell
recipients than Harvard, one member of the Ivy League, Columbia University, had considerably more:
32% of students received Pell grants.)76
3. Harvard could make critical socioeconomic data available to

admissions officers.
Because Harvard has adopted “need-blind” admissions, it has placed a firewall between the
admissions and financial aid offices that prevents admissions officers from knowing the family income
or wealth of applicants.77 This policy creates an enormous barrier to implementing a central race-
neutral strategy used at numerous other colleges: one that provides a preference in admissions to low-
income and low-wealth applicants.
When asked about implementing “race-blind” admissions, President Faust dismissed the idea
because “reducing information in a file does not help advance an understanding of the whole
person.”78 Yet in the case of socioeconomic status, admissions officers lack a full picture of the
students and so must piece together clues about whether a student is economically disadvantaged.
Accordingly, admissions officers try to make educated guesses by examining whether a student

76
“Economic Diversity: National Universities,” US News & World Report, http://www.usnews.com/
best-colleges/rankings/national-universities/economic-diversity. Harvard reports on its website that
“16% of the roughly 6,600 current undergraduate students are Pell Grant recipients.” Harvard College
Griffin Financial Aid Office, “Fact Sheet,” http://college.harvard.edu/financial-aid/how-aid-
works/fact-sheet.
77
Donahue deposition, pp. 36 -38.
78
Faust deposition, p. 44.
23

According to Sally Donahue, Harvard has never discussed providing this information to
admissions officers.82 But withholding critical information about a student’s specific family income
and assets makes it impossible for Harvard to implement a sophisticated socioeconomic affirmative
action program as a race-neutral alternative for attaining the educational benefits of racial, ethnic, and
socioeconomic diversity. Because HFAI eligibility extends to families making up to $80,000 a year,
knowing a student is HFAI-eligible does not allow an admissions officer to discern whether the

79
Donahue deposition, p. 47; Harvard’s Response to Plaintiff’s Second Set of Interrogatories, p. 21.
80
Donahue deposition, p. 41. See also Fitzsimmons deposition, p. 203; Harvard’s Response to
Plaintiff’s Second Set of Interrogatories, p. 22; Kaitlin Howrigan deposition, p. 207.
81
Donahue deposition, pp. 40-41. By contrast, Harvard does not have to guess whether
underrepresented minority students are “likely” to be African American or Hispanic.
82
24

student comes from a very disadvantaged family making less than $10,000 a year, compared with one
making as much as $80,000,83 which is above the national median.84 Harvard’s current admissions
system thus asks admissions officers to treat the bottom half of the U.S. income distribution as an
undifferentiated mass.
Moreover, admissions officers have no solid information about a family’s assets. As discussed
above, that is a critical omission because wealth is an important determinant of opportunity. Indeed,
for the purposes of race-neutral analysis, wealth has a much higher correlation with race than does
income, which means the potential racial dividend of using wealth is substantially greater than it is for
using income.85
4. Harvard could increase the weight it gives to socioeconomic factors.
Harvard has long claimed to “give significant favorable consideration” to economically
disadvantaged students in pursuit of socioeconomic alongside racial and ethnic diversity.86 But
statistical analyses from both Harvard and SFFA’s expert refute that claim.

83
There is some ambiguity regarding the HFAI admissions “flag.” The HFAI program is for students
that come from families making $80,000 or less, but Director McGrath testified that Harvard considers
families making $85,000 or less to be low-income. McGrath deposition, p. 25.
84
See Proctor, Semega, and Kollar, “Income and Poverty in the United States: 2015,” supra, pp. 5-6,
Table 1. In 2015, the median household income in the United States was $56,516. Id. at 5. For those
households headed by individuals ages 45-54—a typical age for parents with college-aged students at
Harvard—the median income was $73,857. Id. at 6, Table 1. Households headed by individuals ages
45-54 is the metric Harvard has used in national comparisons. See Harvard documents, 77544.
85
Conley, “The Why, What, and How of Class-Based Admissions Policy,” supra, p. 209.
86
See “Brief of Harvard University, Brown University, The University of Chicago, Dartmouth College,
Duke University, The University of Pennsylvania, Princeton University, and Yale University as Amicus
Curiae Supporting Respondents,” U.S. Supreme Court in Grutter v. Bollinger and Gratz v. Bollinger,
February 18, 2003, p. 22, n.13.
25

First, in May 2013, Harvard’s Office of Institutional Research (OIR) examined the preferences
in admissions provided to students in the classes of 2009-2016. Looking at data from 192,359
applicants, the Harvard researchers ran a logistic regression to estimate the size of the probability of
admissions for such factors as athletic rating, legacy status, race, and income. Setting aside ratings that
were based on academic, extracurricular, or personal characteristics (which most would consider
legitimate criteria for admission),87 preferences mattered in the following order of size as denoted by
the coefficient (the larger the coefficient, the bigger the size of the preference):
Preference Coefficient
Athletic rating of 1 6.33
Legacy 2.40
African American 2.37
Native American 1.73
Hispanic 1.27
Income less than $60,000 0.98
International 0.24
Asian -0.37
Given these findings, the authors understandably conclude that “[c]ompared to athletes and
legacies, the size of the advantage for low income students is relatively small.”88
In addition, OIR also noted that another way of expressing the relative weights provided for
various preferences is the increased chances of admissions, controlling for academic ability. Among
students receiving the highest academic ratings (1 or 2),89 OIR concluded that

87
Personal rating includes teachers, guidance counselor and alumni interview evaluations along with
the student essay. Harvard documents, 65755.
88
89
According to testimony from Director McGrath, an academic ranking of 1 is rare and roughly
translates into SATs in the 700s, excellent high school grades, and award-winning distinctions. An
academic rank of 2 is typically SATs in the 680s to high 700s. An academic rating of 3 is typically SATs
26

• Recruited Athletes received a 67-percentage point boost (83% chance of admission vs.
16% for nonathletes).
• Legacies received a 40-percentage point boost (55% chance of admission vs. 15% for
nonlegacies).
• Low-income students received a 9-percentage point boost (24% chance of admission vs.
15% for non-low income).
Second, SFFA’s expert witness, Peter Arcidiacono of Duke University, provides similar (and
confirming) analysis. Arcidiacono reviewed data from the 216,334 applicants from the class of 2014
to the class of 2019 admissions cycles, of which 150,701 were identified as an appropriate dataset. He
provides logit estimates of admission (with the largest numbers suggesting the largest boost). In rank
order of importance, his results (using his Model 6) show the relative weight of certain preferences in
Harvard’s admissions:
Preference Logit Estimate of

Admission
Recruited Athlete 7.849
African American 2.659
Legacy 1.84
Faculty/Staff Dependent 1.704
Hispanic 1.419
Early Action 1.282
Disadvantaged 1.083
First-Generation 0.023
Asian -0.271
Moreover, Arcidiacono finds that while Harvard provides a preference for disadvantaged
applicants, that preference is smaller for Hispanics, who already receive a large bump, and non-existent
for African Americans. A perverse effect of giving such a big preference for race is that it negates the

in the 600s and B grades. An academic rating of 4 is 500 SATs or below. McGrath deposition, pp.
167-69.
27

incentive to give minorities a socioeconomic preference. Indeed, Arcidiacono’s analysis of the six-year
period covering the classes of 2014-2019 finds that 70.5% of underrepresented minority students are
advantaged.
Finally, it is worth noting that these findings are in line with prior studies examining similar
schools (including Harvard). Empirical research—from four sets of supporters of racial preferences—
suggest that universities do not in fact provide much of a leg up to economically disadvantaged
students, at least so long as direct racial preferences are available to them.
• In a 2004 study of the nation’s most selective 146 institutions, Georgetown professors
Anthony Carnevale and Stephen Rose found that race-based preferences on average triple
the representation of blacks and Hispanics students compared to admission based on
grades and test scores, but that universities do nothing to boost socioeconomic
representation.90 In fact, the representation of poor and working class students is slightly
lower than if grades and test scores were the sole basis for admissions, the researchers
found.91 Harvard was among the institutions included.
• In a 2005 study of highly selective institutions, the Mellon Foundation’s William Bowen
and colleagues found that being an underrepresented minority increases one’s chance of
admissions by 27.7 percentage points; that is, an applicant with a 40% chance of
admissions has a 68% chance if she is African American, Hispanic, or Native American.
By contrast, being in the bottom income quartile (relative to the middle quartiles) has no
positive effect.92 Harvard was among the 13 colleges examined.93
• A 2009 analysis by Thomas Espenshade of Princeton and Alexandria Radford finds that,
at highly selective private institutions, the boost provided to African-American applicants
is worth 310 SAT points (on a 1600 scale), compared with 130 points for poor students,
70 points for working-class applicants, and (distressingly) 50 points for upper-middle class

90
Carnevale & Rose, “Socioeconomic Status, Race/Ethnicity, and Selective College Admissions,”
supra, p. 135.
91
Id. at 142.
92
William G. Bowen, Martin A. Kurzweil, & Eugene M. Tobin, Equity and Excellence in American
Higher Education (University of Virginia Press, 2005), p. 105, Table 5.1.
93
Id. at 289, Appendix Table 5.1.
28

students, relative to middle-class pupils.94 The authors did not disclose the identity of the
institutions studied.95
• A 2015 study of 40 selective colleges by Sean Reardon of Stanford and colleagues using
2004 data concludes that “racial affirmative action plays (or played, in 2004) some role in
admissions to highly selective colleges but SES-based affirmative action did not.”96
In the end, these regression analyses indicate that Harvard is dramatically undervaluing
socioeconomic status compared with race.
B. Harvard could increase financial aid.
In 2007, Harvard made headlines by announcing it would require no parental contribution for
families making less than $60,000 and would cap tuition at 10% of income for families making between
$80,000 and $180,000.97 Since then, however, Harvard has “scaled back” its commitment to families
making between $150,000 and $180,000, as Sally Donahue testified.98 Likewise, the cutoff for
Harvard’s financial aid program (which now stands at $80,000) has not been updated for several years,
failing to keep up with inflation, even as the “free college” movement has become more prominent
nationally.
These reductions in aid obviously matter for socioeconomic diversity but they also matter for
racial diversity. Unaided students come from the wealthiest families in the country, so it is relevant to

94
Thomas J. Espenshade & Alexandria Walton Radford, No Longer Separate, Not Yet Equal
(Princeton University Press, 2009), p. 92, Table 3.5.
95
Id. at 411.
96
Sean F. Reardon, Rachel Baker, Matt Kasman, Daniel Klasik, & Joseph B. Townsend, “Can
Socioeconomic Status Substitute for Race in Affirmative Action College Admissions Policies?
Evidence From a Simulation Model,” Educational Testing Service, 2015, p. 6.
97
“Harvard Announces Sweeping Middle-Income Initiative,” Harvard Gazette, December 10, 2007,
http://news.harvard.edu/gazette/story/2007/12/harvard-announces-sweeping-middle-income-
initiative.
98
Donahue deposition, p. 84.
29

note that whites constitute 96.2% of the nation’s top 1% of earners and African Americans just 1.4%.99
Overall, Harvard has seen a decline in the number of aided freshman students since a peak for the
class of 2012, when 68% of students received financial aid. By the freshman class scheduled to
graduate in 2017, the proportion of aided students declined to 55%.100 Reductions in financial aid were
projected to save Harvard $46 million for freshmen entering in the class of 2022.101
Harvard may claim that increasing financial aid would be too expensive. But Harvard officials
repeatedly testified that the institution could handle the expenses related to providing financial aid for
more economically disadvantaged students. Sally Donahue testified that Harvard has no maximum or
cap on the amount of money available for financial aid. Indeed, she said, it would not present a
problem if the number of HFAI students doubled.102 (Doubling would take HFAI students from 25%
to 50% of the class.) Likewise, Dean Fitzsimmons testified that Harvard’s charge is to recruit and
admit “the best, most interesting students,” and that there is no economic restraint on the number of
students Harvard can admit through its financial aid initiative.103

99
Shartia Brantley, “Who Are the Black ‘1 Percent’?” The Grio, November 21, 2011 (based on
calculations from Federal Reserve data).
100
101
102
Donahue testimony, pp. 43-44. See also id. at 95-96.
103
Fitzsimmons deposition, pp. 46, 203. See also Howrigan deposition, p. 204.
30

That Harvard has the financial means to significantly increase its financial aid awards is not
surprising. Harvard’s endowment is $37.1 billion.104 This is the largest endowment in the nation,
exceeding the GDP of more than half the countries in the world.105
C. Harvard could reduce or eliminate preferences that favor non-minorities.
Harvard also insists on retaining a number of preferential programs that disproportionately
benefit wealthy and white students—policies whose elimination would increase socioeconomic and
racial diversity. These include preferences for the children of alumni, donors, and faculty and staff. I
discuss each in turn.
1. Legacy preferences
Harvard has a long and shameful history of using legacy preferences for the offspring of
alumni. As Peter Schmidt of the Chronicle of Higher Education has noted, Harvard began using legacy
preferences for the children of alumni as a strategy for reducing the admissions of Jewish students.106
To this day, legacy preferences disproportionately benefit white students to the detriment of Asian-
American, African-American, and Hispanic students. Recall that Harvard’s own analysis shows that
legacies received a 40% boost in their chances of admissions (compared with just a 9% boost for low-

104
N.P. “Narv” Narvekar, “Message from the CEO,” Harvard Management Company, Inc.,
September 2017, 1, p. 1, http://www.hmc.harvard.edu/docs/Final_Annual_Report_2017.pdf.
105
Adam Vaccaro, “Harvard’s Endowment Is Bigger Than Half the World’s Economies,”
Boston.com, September 25, 2014, http://www.boston.com/news/business/2014/09/25/harvards-
endowment-is-bigger-than-half-the-worlds-economies.
106
See Peter Schmidt, “A History of Legacy Preferences and Privileges,” in Affirmative Action for the
Rich: Legacy Preferences in College Admissions, ed. Richard D. Kahlenberg (New York: Century
Foundation press, 2010), p. 42.
31

income students).107 And Arcidiacono’s analysis finds legacy status provided a bigger boost than other
preferences except for African Americans and recruited athletes.
Harvard persists in promoting legacy preferences despite ample evidence that doing so
undermines its efforts to promote racial and socioeconomic diversity. As the former chief counsel for
the Lawyers Committee for Civil and Human Rights, John Brittain, and his coauthor Eric Bloom have
noted, at Harvard, only 7.6% of legacy admits in 2002 were under-represented minorities, compared
with 17.8% of all students. The authors note that “affirmative action does not offset legacy preference:
the use of legacy preference, in fact, requires college admission officers to rely more heavily on
affirmative action.”108 Likewise, Harvard’s own data show that legacies are disproportionately wealthy.
In the six years for the classes of 2009-2014, 12% of the class consisted of legacies, and of legacies, an
astonishing 76% did not apply for financial aid.109 Arcidiacono’s modeling suggests eliminating legacy
would have a small, but positive influence on African-American representation and on Hispanic
representation.
Finally, it should be noted that eliminating legacy preferences is a workable race-neutral
strategy. Among the top 10 universities in the widely-cited Shanghai rankings, four (Caltech, U.C.
Berkeley, Oxford, and Cambridge) do not employ legacy preferences.110 Research also finds that the
existence of legacy preferences does not increase alumni donations to an institution. In an examination
of the top 100 universities in U.S. News & World Report, Chad Coffman of Winnemac Consulting

107
108
Brittain & Bloom, “Admitting the Truth,” supra, p. 132.
109
110
Richard D. Kahlenberg, “Introduction,” in Affirmative Action for the Rich, supra, p. 8.
32

and colleagues found “no evidence that legacy preference policies themselves exert an influence on
giving behavior.”111
In his testimony, Dean Fitzsimmons suggested that providing legacy preferences is “essential
to Harvard’s well-being.”112 Nevertheless, Fitzsimmons could not point to any empirical evidence that
legacy preferences had boosted alumni giving at Harvard.113 Dean Khurana’s testimony on the
purported educational benefits of legacy preferences seemed particularly strained. He suggested it was
important for Harvard to favor the children of alumni in order to bring students who “have more
experience with Harvard” together with “others who are less familiar with Harvard.” The ability of
these different groups to “exchange perspectives, points of view,” he claimed, would make “them
more effective citizens and citizen leaders for society.”114 I am aware of no research to support this
claim.
2. Donor preferences
Harvard also generally provides preferential admissions to the children of major donors.
Director McGrath testified that applicants related to substantial donors are noted by admissions
officers.115

111
Chad Coffman, Tara O’Neil, & Brian Starr, “An Empirical Analysis of Legacy Preferences on
Alumni Giving at Top Universities,” in Affirmative Action for the Rich, supra, p. 113.
112
Fitzsimmons deposition, p. 189.
113
Fitzsimmons deposition, pp. 192-94. By contrast, Dean Smith testified that he did not think of
legacy admissions as tied to alumni giving. Smith deposition, p. 236.
114
Khurana deposition, p. 247.
115
McGrath deposition, p. 207.
33

According to Daniel Golden’s book, The
Price of Admission, Harvard has formalized this system for the wealthiest donors, those giving $1
million or more, through the creation of Harvard’s Committee on University Resources (COUR).
Golden found that 336 children of COUR members have gone on to attend Harvard, “an astonishing
enrollment rate of one child per major donor.”117 Ending admissions preferences to the children of
donors obviously would help increase socioeconomic diversity.
3. The Z-list.
Relatedly, Harvard operates a unique form of admissions known as the “Z-list” in order to
admit a group of mostly advantaged students, including legacies, who would probably not be admitted
through the ordinary course.118 The Z-list is a method by which Harvard admits a select group of
students but only on the condition that they take a year off before enrolling at Harvard. As Golden
explained, “If wealthy or well-connected aren’t admitted to Harvard in the standard fashion, they need
not despair... They may be placed on the ‘Z-list’—a Harvard admissions office term for a little-known
policy that compromises standards in the interest of alumni and donors, enabling their children to
enter America’s most famous university by a side door.”119
Harvard’s admissions data confirm Golden’s analysis:

116
Fitzsimmons deposition, pp. 275-78.
117
Daniel Golden, The Price of Admission: How America’s Ruling Class Buys Its Way into Elite
Colleges—and Who Gets Left Outside the Gates (Crown Publishers, 2006), p. 26.
118
Id.
119
Id. at 37.
34

In the six years covered in Arcidiacono’s database, Harvard admitted on average almost 60
students each year through the Z list. While Harvard boasts of having a majority-minority student
population overall, 70% of Z-list students were white, 14% were Asian, 4% were Hispanic, and just
2% black. A whopping 58.8% were on the special “Dean’s Interest” list and 46.5% were legacies. By
contrast, just 1.2% were disadvantaged, and 1.8% first generation. Grace Cheng, a former Harvard
admissions officer, explained the Z-list is not designed for students of modest means. “We had
concerns of lower income, underresourced students not knowing what to do for a year, for a year off
35

of traditional schooling.”120 Academically, Z-list admits fell far below the typically admitted student;
indeed, their academic records on average fall about as close to rejected students as they do to admitted
students. Eliminating this preferential program for largely white, wealthy, and well-connected students
would be an important way to increase Harvard’s racial and socioeconomic diversity.
4. Faculty and staff preferences
Harvard also provides a substantial preference in admissions to the offspring of faculty and
staff. According to Arcidiacono’s analysis, the boost provided for this favored category of applicants
is bigger than that provided to Hispanics, those applying early admission, disadvantaged students, and
first-generation students. Arcidiacono also observes that the applicants receiving the faculty and staff
are disproportionately white, and that African-American and Hispanic applicants are underrepresented
compared to their share in the applicant pool as a whole..
D. Harvard could adopt admissions policies utilizing geographic diversity,

including percentage plans and the use of zip codes.
Harvard says it seeks geography diversity in its student body, but the commitment appears to
be weak, which in turn undercuts its efforts to promote student body diversity. For example, the 2010
U.S. Census finds that 37% of Americans (and 55% of African Americans) live in the South.121
Nevertheless, in the class of 2021, just 18.8% of Harvard students came from the South.122

120
Cheng deposition, p. 141-42.
121
U.S. Census Bureau, “2010 Census Shows Black Population has Highest Concentration in the
South,” September 29, 2011, http://www.census.gov/newsroom/releases/archives/2010_census/
cb11-cn185.html; U.S. Census Bureau, “Population by Region,” http://www.census.gov/popclock/
data_tables.php?component=growth.
122
Harvard University, “Admissions Statistics,” http://college.harvard.edu/admissions/admissions-
statistics.
36

Dean Fitzsimmons testified that Harvard has not conducted a formal analysis into the use of
precise geographic factors, including zip codes.123 This omission is remarkable given that the race-
neutral zip code strategy has been championed by Harvard Professor Danielle Allen, who holds one
of the school’s prestigious university professorships, Harvard’s “highest faculty honor.”124 According
to Professor Allen, programs that enhance geographic diversity (and thus leverage the unfortunate
reality of residential and high school segregation by race and class for a positive purpose) can promote
integration in higher education. Professor Allen has noted that zip codes provide an important way
for national universities to provide geographic diversity and also contribute to racial, ethnic, and
socioeconomic diversity.125 Allen has described how “[g]eographically based structures for seeking
talent are tried and true” and “the pursuit of geographic diversity in admissions is our best hope of
merging the goals of diversity and excellence.”126 Such geographic diversity could “be taken to the
level of ZIP codes and, in particular, to the level of the ZIP+4 system, which divides the United States
into geographic units as small as a city block or group of apartments.”127 Professor Allen suggests that
a university might sort students through a “geographic diversity algorithm” and then “review the
identified admits, case-by-case, confirming or disconfirming [each] selection.”128 A university might

123
124
Anna Steinbock, “Danielle Allen Named University Professor,” Harvard Gazette, November 14,
2016, http://news.harvard.edu/gazette/story/2016/11/danielle-allen-named-university-professor/.
For a related idea, see Cashin, Place Not Race, supra.
125
See Danielle Allen, “Talent is Everywhere: Using ZIP Codes and Merit to Enhance Diversity,” in
The Future of Affirmative Action, supra.
126
Id. at 147.
127
Id.
128
Id. at 148.
37

also “determine the combination of SAT score and GPA that would constitute its entrance threshold”
and then choose the highest performing applicants within specific ZIP codes.129 Given the increasing
number of “ethnic census tracts,” in which certain minority groups constitute more than 25% of the
tract population, Professor Allen expects that “at selective colleges and universities a stronger
orientation toward geographic diversity could well support diversification of student populations by
ethnicity, thereby permitting us to slip free of the contested terrain of affirmative action.”130
Such methods have already been put into action. For example, Halley Potter and I have written
about public charter schools in San Diego, California, which have used zip codes to ensure
socioeconomic and racial diversity.131 Such geographic and socioeconomic diversity can succeed
because, unfortunately, concentrated poverty is often highly correlated with race. African Americans
and Hispanics are much more likely to live in neighborhoods with concentrated poverty than whites.
For example, while 6% of young whites live in neighborhoods with more than 20% poverty rates,
66% of African Americans live in such neighborhoods.132 Indeed, Carnevale’s simulation, noted above,
finds that a comparable approach—admitting high test scorers within schools—promotes
socioeconomic and racial diversity.133 Harvard’s failure to examine excellence within zip codes—what

129
Id. at 147.
130
Id. at 155-56.
131
See Richard D. Kahlenberg & Halley Potter, A Smarter Charter: Finding What Works for Charter
Schools and Public Education (Teachers College Press, 2014), p. 186.
132
See Patrick Sharkey, Stuck in Place: Urban Neighborhoods and the End of Progress Toward Racial
Equality, Figure 2.1 (University of Chicago Press, 2013), p. 27.
133
Carnevale, Rose, & Strohl, in “Achieving Racial and Economic Diversity with Race-Blind
Admissions Policy,” supra.
38

might be considered a private university alternative to the Texas top 10 percent plan—represents a
major missed opportunity.
E. Harvard could increase its recruitment efforts.
Although Harvard touts its recruitment of underrepresented minorities, it exerts far less effort
to recruit economically disadvantaged applicants, many of whom are underrepresented minorities. For
example, Dean Fitzsimmons testified that while Harvard purchases information from institutions such
as the College Board to recruit high achieving underrepresented minority students (those scoring
between 1100-1600 on the SAT), it does not appear to make a similar effort to purchase information
about high achieving but socioeconomically disadvantaged students.134 Harvard fails to purchase this
information despite Fitzsimmons’ testimony that there are socioeconomically disadvantaged students
who could succeed at Harvard who are not currently in the applicant pool.135
Harvard does an especially poor job of recruiting into its applicant pool students whose
parents do not have a college degree. For the classes of 2007-2011, such students comprised just
12.5% of all applicants. For the class of 2016, the percentage was 12.7%.136 By comparison, as noted
above, 68% of adults age 45-54 lack a college degree.137 Looking at very high achieving students (SAT
scores of 1450 and higher), nearly half (43%) of those students from families making more than

134
Fitzsimmons deposition, pp. 59-67.
135
136
137
Ryan & Bauman, “Educational Attainment in the United States: 2015,” supra, p. 2, Table 1.
39

$100,000 applied to become members of the Harvard class of 2009. By contrast, less than a quarter
of those very high test scorers making less than $100,000 applied.138
Part of Harvard’s problem is that it recruits disproportionately from areas that have few high-
achieving low-income students. For example, the Midwest and Mountain states produce 21.2% of
high-achieving low-income students, which is six times as many as exist in New England (3.5%).139
Yet in the class of 2021 Harvard enrolled more students from New England (16.5%) than in all of the
Midwest and Mountain states combined (13.4%).140
More specifically, Harvard relies heavily on a relatively small number of “feeder” schools to
fill a significant part of its class. For the classes of 2007-2016, 20.3% of matriculates and 12.9% of
applicants, came from schools that represent just 0.6% of American high schools.141 Viewed through
the lens of the College Board’s high school cluster designations, which sort schools by demographics,
Harvard’s data produced in this case reveals that it recruits 54.5% of domestic students from just two
of 29 clusters.142
This failure to recruit high-achieving, low-income students, including thousands who are
African American and Hispanic, is an enormous missed opportunity. As discussed above, there is a
very large reservoir of such students whom Harvard, the nation’s oldest and wealthiest university, is
not recruiting.

138
139
Cashin, Place Not Race, supra, p. 47.
140
“Harvard Statistics,” https://college.harvard.edu/admissions/admissions-statistics
141
142
For background on College Board’s 29 high school clusters, see College Board, “Segment Analysis
Service: An Educationally Relevant Geodemographic Tagging Service,” 2011, p. 4, http://
media.collegeboard.com/mSSS/media/pdf/segment-analysis-service-overview.pdf.
40

F. Harvard could increase its admission of community college transfers.
Harvard also fails to provide the opportunity for a meaningful number of high-achieving
community college students to transfer to Harvard—a strategy used by many selective public and
private colleges to promote socioeconomic and racial diversity in their student bodies. Community
colleges have many more African-American, Hispanic, and low-income students than selective four-
year colleges.143 According to the American Association of Community Colleges, “the majority of
Black and Hispanic undergraduate students in this country study at [community] colleges.”144
While other colleges began ramping up community college transfers, Harvard has for years
lagged in this arena.145 For the Classes of 2014 through 2019, only two community college students
transferred to Harvard. By contrast, Amherst College, a highly competitive institution, enrolls between
12 and 15 community college transfer students annually to its undergraduate population of 1790.146 If
Harvard, which has an undergraduate population of 6700, adopted a similarly scaled program, it would
include between 44 and 55 community college transfer students per year. This rate would translate
into about 300 community college transfers over a six-year period, rather than the two actually

143
See Bridging the Higher Education Divide: Strengthening Community Colleges and Restoring the
American Dream – Report of The Century Foundation Task Force on Preventing Community
Colleges from Becoming Separate and Unequal (Century Foundation Press, 2013), pp. 18-21.
144
American Association of Community Colleges, “Students at Community Colleges,”
http://www.aacc.nche. edu/AboutCC/Trends/Pages/studentsatcommunitycolleges.aspx.
145
See Arianna Markel, “Harvard Lags in Community College Recruitment,” The Harvard Crimson,
December 12, 2007.
146
Jennifer Glynn, “Opening Doors: How Selective Colleges and Universities Are Expanding Access
for High-Achieving, Low-Income Students,” (Jack Kent Cooke Foundation, April 2017), p. 37; see
www.jkcf.org/assets/1/7/JKCF_Opening_Doors_Executive_Summary.pdf.
41

admitted.147 The failure represents another missed opportunity to add racial and socioeconomic
diversity to Harvard.
G. Harvard could end early admissions.
Finally, Harvard could increase racial, ethnic, and socioeconomic diversity if it were to drop
its “early admissions” program that disproportionately benefits wealthy and white students. Early
admissions is a practice in which schools allow students to submit their application in the early Fall if
they apply to only one school. For several years, Harvard eliminated early admissions, citing the
unfairness to low-income and minority students. But then, in 2011, it abruptly reversed course,
reinstating a policy that advantages the already advantaged. According to Arcidiacono’s model,
applying early has a positive logit estimate of 1.282 at Harvard—meaning that students who apply
early receive a bigger boost than Harvard provides to first-generation and disadvantaged students.
Early admission programs, like Harvard’s program, usually benefit wealthier and better-
informed students because these students have the resources to submit their application early and do
not need to hold out for the prospect of financial aid.148 By contrast, low-income students and
minorities face a disadvantage under early admissions because they often receive inadequate
information and counseling and lack the economic resources to commit to a school so early in the
process. According to a 2011 study by Julie J. Park of Miami University and M. Kevin Eagan of the
UCLA Higher Education Research Institute, students who applied early-action to 290 colleges and

147
Harvard at a Glance, https://www.harvard.edu/about-harvard/harvard-glance.
148
See Alan Finder & Karen W. Arenson, Harvard Ends Early Admission, New York Times,
September 12, 2006, http://www.nytimes.com/2006/09/12/education/12harvard.html.
42

universities across the country are more economically advantaged and more likely to be white than
those who did not apply early.149
Because early admissions undermine the chances of low-income and minority applicants,
Harvard terminated early admissions in 2006. According to Harvard’s then-President Derek Bok: “We
hope that doing away with early admission will improve the process and make it simpler and fairer.
Early admission programs tend to advantage the advantaged. . . . Students from more sophisticated
backgrounds and affluent high schools often apply early to increase their chances of admissions, while
minority students and students from rural areas, other countries and high schools with fewer resources
miss out.”150 Similarly, Dean Fitzsimmons supported ending early admissions, noting: “An early
admission program that is less accessible to students from modest economic backgrounds operates at
cross-purposes with our goal of finding and admitting the most talented students from across the
economic spectrum.”151 Nevertheless, in 2011, Harvard reinstated early admissions. Harvard did so
because it was concerned that its yield rate (those accepting their offer of admission) had declined.
The decline occurred among white and Hispanic students, while yield among African-American
students remained steady and increased for Asian students.
Part of the rationale for restoring early admission, according to internal documents, was that
Harvard was losing out to other colleges in the competition for students from certain high schools.
“At some of Harvard’s most productive ‘feeder’ high schools . . . up to 90% of students apply early

149
Julie J. Park & M. Kevin Eagan, “Who Goes Early? A Multi-Level Analysis of Enrolling via Early
Action and Early Decision Admissions,” Teachers College Record, 2011.
150
Harvard documents, 77577-77578.
151
43

somewhere. By not offering an admission option, therefore, Harvard has placed itself at odds with
trends in the market.”152 Yet Harvard’s data showed that even without early admissions, it was winning
the competition for students who were also admitted to Yale, Stanford, and Princeton two-thirds of
the time.153 Regardless, it appears that Harvard’s concerns about its place in the market outweighed its
earlier stated concerns about equity.
In 2013, after the introduction of early admissions, Harvard analyzed its admissions process
and found that significant differences remained between the types of students who applied for early
versus regular admissions. White students and legacy students were more likely to apply early than a
typical student. African-American students, Hispanic students, international students, those whose
parents had no college degree, and those seeking a fee waiver were all more likely to apply regular
admission than the typical student.154 Harvard could increase student body diversity by eliminating
early admissions as several other selective colleges have.155

152
153
154
Harvard documents, 65579. The differences were statistically significant in all these cases in 2016
except for African Americans and Hispanics. In 2016 African Americans represented 8.9% of the
early action pool and 9.9% of the regular pool. Hispanics represented 9.0% of the early action pool
and 10.3% of the regular pool. Harvard documents, 65609.
155
Christopher Avery & Jonathan Levin, “Early Admission at Selective Colleges,” Stanford Institute
for Economic Policy Research, March 2009, p. 4 (noting that the University of Michigan, and four
top University of California colleges did not employ early admissions).
44

VI. Simulations of Harvard’s data show that workable race-neutral alternatives exist.
A. A careful simulation indicates that Harvard could achieve the educational

benefits of racial, ethnic, and socioeconomic diversity without sacrificing
academic quality.
To simulate the likely results of adopting race-neutral strategies at Harvard, Professor
Arcidiacono tested the results of a few race-neutral options using the admissions data provided by
Harvard. At my request, he conducted simulations of multiple race-neutral alternatives to forecast the
likely outcomes thereof.156 These simulations, and the underlying assumptions, are set forth in the
charts set forth in detail in Appendix C.157 For discussion purposes in this report, I will focus on
Simulation 4.
To replicate as closely as possible Harvard’s existing system of admissions, Arcidiacono began
by using the model he developed that accounts for numerous criteria for admission and characteristics
of the applicants, including Harvard’s four-part rating system, which rates applicants on in four areas:
academics, extracurricular activities, athletics, and personal ratings.158 I asked Arcidiacono to exclude

156
I have worked in the past with researchers such as Anthony Carnevale at Georgetown University
to measure the effectiveness of race-neutral alternatives through similar simulations. See supra Section
IV.B.
157
Some of the simulations include an “expanded pool,” in which I assume that Harvard—through
increased recruiting efforts focused on socioeconomically disadvantaged areas and high schools—
could double the number of disadvantaged students in its applicant pool. This assumption is
reasonable, given data that suggest that in the past, Harvard had twice as many high-achieving, high-
income students apply as high-achieving, lower-income students. Harvard documents, 77538 (Among
high achieving students (SAT scores of 1450 and higher), nearly half (43%) of those students from
families making more than $100,000 applied to become members of the Harvard class of 2009. By
contrast, less than a quarter of those very high test scorers making less than $100,000 applied.) The
expanded pool scenarios assume that the expanded pool would contain students with characteristics
identical to Harvard’s current socioeconomically disadvantaged pool.
158
This is based upon Model 6 illustrated in Table B.8.2 in the Arcidiacono report, with two
adjustments. In addition to race interacted with year, the model also contains an interaction between
disadvantaged and year. Second, the overall rating is excluded as a control.
45

from the model Harvard’s overall rating, which may reflect admissions preferences. The advantage
associated with the various preferences were then “turned off”—specifically, the preferences for race,
legacy, recruited athlete, early decision, faculty and student children, the Dean/Director list, fee waiver,
first generation, and financial aid recipients. With those preferences off, admissions probabilities could
be generated and the applicants could be ranked in order of strength under the remaining aspects of
Harvard’s admissions process. This approach allows for simulating the effects of a variety of race-
neutral options on racial diversity, socioeconomic diversity, and academic readiness.
Before beginning Simulation 4, Arcidiacono turned Harvard’s existing preferences for
recruited athletes back “on.” He did this at my direction, because I have found that removing athletic
preferences in connection with race-neutral alternatives is sometimes perceived as radical. This
particular simulation thus avoids any concern that eliminating recruited athletes is unworkable or
otherwise inappropriate when seeking a race-neutral alternative.
The first step in the simulation involved providing a preference to students that Harvard has
designated as economically “disadvantaged.” The disadvantaged tag is one applied by admissions
counselors through a somewhat subjective process: it would include those students whose parents do
not have a bachelor’s degree, whose family income is likely to be $80,000 or lower, who live in a
neighborhood admissions officers deem disadvantaged, or who requested a fee waiver on the
application.159

159
See supra Section V.A.3. Because the disadvantaged tag doesn’t identify where family income falls
in the range from $0 to $80,000 or the net worth/wealth of applicants, the broad designation does not
allow for consideration of the available economic data that is most highly correlated with race. As a
result, the simulations likely form a lower bound estimate of the racial dividends of these strategies.
Better data could produce higher levels of racial diversity.
46

The magnitude of the preference for disadvantaged students in the simulation is somewhat
larger than the one currently provided to African-American students, but only half the size provided
to recruited athletes (who currently receive the largest preference). The simulated preference is larger
than that provided to African Americans because evidence suggests that socioeconomic obstacles to
academic achievement are greater in magnitude than racial obstacles. An economically disadvantaged
student who managed to overcome hurdles may have a more promising future than her academic
profile on paper.160 Moreover, as William Bowen, the former President of Princeton University, has
noted, SAT scores do not over-predict the college grades of low-income students as they do those of
African-American students.161 At the same time, the preference is calibrated to be smaller than those
provided to recruited athletes. Even though Harvard recruited athletes are, on average, fairly
wealthy,162 they receive a very large preference that, if provided in a simulation to economically
disadvantaged students, would overwhelm the freshman class with such students.
This first step by itself underestimates the potential of Harvard to create race-neutral strategies
to promote diversity because it does not directly consider geographic residence of applicants. As noted
above, a number of leading state universities have created racial diversity by employing “percentage

160
See, e.g., Anthony P. Carnevale & Jeff Strohl, “How Increasing College Access Is Increasing
Inequality, and What To Do About It,” in Rewarding Strivers 170, Table 3.7 (Century Foundation,
2010), p. 170, Table 3.7 (estimating the SAT scores socioeconomically disadvantaged students on
average are 399 points below socioeconomically advantaged students, while for African American
students, the expected score is 56 points lower).
161
Bowen, Kurzweil, & Tobin, Equity and Excellence in Higher Education, supra, p. 118 (SAT’s do
not over-predict college grade point average for low-income students); and William Bowen and Derek
Bok, The Shape of the River, p. 77 (SAT’s over-predict college grade point average for African
American students.)
162
See Harvard documents, 77643. (In the six-year period for the classes of 2009-2014, 53% of varsity
athletes did not apply for financial aid.)
47

plans” that enroll top students in a variety of high schools.163 Harvard could take top students from
various geographic locales, as Harvard professor Danielle Allen has suggested.164 Although Harvard
refused to provide zip code data of applicants, it ultimately did provide data on whether applicants
reside in one of 33 “Educational Neighborhood Clusters,” provided by the College Board.165 This
approach is consistent with Harvard’s stated commitment to socio-geographic diversity.
The second step of Simulation 4 combines a commitment to geographic diversity, which
admits top-ranked students within each neighborhood cluster, and a preference for socioeconomically
disadvantaged students. After disadvantaged students are given a boost equivalent to half of that given
to athletes, applicants are then sorted according by rank and year within a neighborhood cluster. An
even number of the top applicants are then selected from each cluster, so that the total number of
admits in each year approximates the observed number of admits in each year.166 This combination of
approaches provides a sizable increase in socioeconomic diversity and maintains racial diversity to a
remarkable degree, yielding a net plus in overall diversity, while maintaining academic excellence. See
Appendix C for the full results (Simulation 4). But take the most recent class of 2019 as an example:

163
See supra Section IV.B.
164
See supra Section V.D.
165
See College Board, “Segment Analysis Service: An Educationally Relevant Geodemographic
Tagging Service,” 2011, p. 4; College Board, “Descriptor PLUS: Cluster Description Guide—
Educational Neighborhood Clusters; High School Clusters,” 2011.
166
A small percentage (3.5%) of the applicants considered in this model were not listed with a
neighborhood cluster. To ensure full representation of these students, they were merged with the
smallest cluster.
48

Harvard – Admitted Class of 2019

Status Quo Simulation
Race-Based Admissions Race-Neutral Admissions
White 40.4% White 39.6%
African American 13.6% African American 10.1%
Hispanic 12.9% Hispanic 13.5%
Asian American 23.7% Asian American 27.6%
Other minority 9.3% Other minority 9.2%
Disadvantaged 17.4% Disadvantaged 54.3%
Advantaged 82.6% Advantaged 45.7%
Academic Index 227.8 Academic Index 225.9
Several observations about these findings are worth highlighting.
First, under the simulation, socioeconomic diversity would increase considerably, with the
“advantaged” proportion of the admitted class dropping from 82.6% to 45.7%. In considering these
numbers, it is important to recognize that “disadvantaged” in the context of Harvard’s extremely
wealthy student body would be thought of as a “typical American family” in any other context. The
“disadvantaged” designation covers more than two-thirds of American families headed by individuals
between the ages of 45 and 54 because simply having parents who lack a bachelor’s degree earns the
disadvantaged tag. This is in addition to those students with a parent holding a college degree making
less than $80,000 (roughly the median family income for adults age 45-54) or who live in a
disadvantaged neighborhood.167At 54.3% of the admitted class, these “disadvantaged” students would
still be underrepresented compared with the general population, but far less than under the status quo.
Second, under the simulation, overall racial and ethnic diversity would hold basically stable,
with Hispanic students rising from 12.9% to 13.5% of the class and African-American students
declining from 13.6% to 10.1% of the class. (The “other minority” category would remain basically

167
See supra Section V.E.
49

even.) The small decline in African-American representation could be addressed by using a wealth
measure (see discussion below). But it is important to recognize that this level of African-American
representation is not unusual for Harvard or in relation to other schools. A 10.1% representation is
greater than the representation found at Harvard throughout most of the affirmative-action era.
Harvard has prided itself for decades on providing the educational benefits of diversity, boasting that
“diversity is the hallmark of the Harvard experience.”168 Yet in the classes graduating in the 1970s and
early 1980s, Harvard’s African-American representation ranged from 7-8%, which seemed to satisfy
Harvard’s claimed interest.169 Even accounting for yield rates, this simulation would result in
comparable representation. In any event, Harvard President Drew Faust testified (repeatedly) that the
particular racial composition of the Harvard class is of no interest to Harvard officials.170 Moreover,
this simulation would greatly increase the share of disadvantaged African-American and Hispanic
students.
Third, in looking at the educational benefits of diversity, the Supreme Court—and Harvard
officials—have repeatedly suggested that both racial and socioeconomic diversity are important.171
While media reports often focus solely on the racial impact of alternatives, the critical measure is the
net impact on socioeconomic and racial diversity taken together. Given the large increase in

168
Elizabeth Bangs, “Harvard Adds Another ‘Hallmark’ ‘Distinction and Diversity’ Now Central to
Your College Experience,” Harvard Crimson, September 16, 1994 (noting Harvard touting diversity
“for years”).
169
Alan M. Dershowitz & Laura Hanft, “Affirmative Action and the Harvard College Diversity-
Discretion Model: Paradigm or Pretext?” 1 Cardozo Law Review 379, 383 (1979).
170
Faust deposition, pp. 25-26, 91, 107-08.
171
See Grutter, 539 U.S. 306, 324 (2003); Bakke, 438 U.S. 265, 316 (1978); Fitzsimmons deposition,
pp. 421-23; McGrath deposition, p. 231; Faust deposition, p. 196; Khurana deposition, pp. 66, 75;
Smith deposition, p. 48.
50

socioeconomic diversity and the mixed effect on racial diversity, the simulation suggests a substantial
net increase in the educational benefits of diversity.
Fourth, it is important to put the impact on the “academic index” finding—a modest drop
from 227.8 to 225.9—in context. The 225.9 academic index is well within Harvard’s range of what it
considers to be academically qualified: it is comparable to the average academic index of Hispanic
students for the classes of 2014-2019 (225.9) and exceeds the average academic index of African-
American students and athletes (221.5 and 213.5 respectively). Indeed, Harvard officials repeatedly
testified that all students at Harvard—including the lowest scoring—are academically qualified.
President Faust, for example, said none of the current students were academically mismatched because
Harvard “would not want to have any students on the campus who were not able to thrive and succeed
in our academic environment.”172
This simulation is not the only way that Harvard could achieve its goals without the use of
race. But it confirms—using information about Harvard’s current process, and data already available
to Harvard—that such alternatives are both available and workable. Harvard no doubt could identify
alternative methods, if it were committed to doing so.
B. Through inclusion of additional socioeconomic factors and better recruiting of

low-income students, the simulation could predict even greater racial and
ethnic diversity.
As noted above, this simulation could have achieved a more robust racial dividend if I had
access to additional information about critical socioeconomic factors the Court permitted Harvard to

172
Faust deposition, pp. 225-26, 228, 291-93, 295-96, 304. See also Khurana deposition, pp. 194-95
(that academic mismatch is not a problem at Harvard College.)
51

withhold from SFFA or which Harvard could not make available, or if Harvard had recruited more
aggressively.
More accurate income data. I was limited to using Harvard’s economic disadvantage flag,
which includes roughly the bottom half of the income distribution among 45-54 year olds nationally.
This metric, however, masks considerable variation. For instance, I could not model providing a bigger
boost in the analysis to a remarkable student who performed well academically despite coming from
a very disadvantaged household compared to a student near the median income nationally. This
limitation has important implications for the racial dividend of class-based affirmative action because
African-American and Latino students are far more likely to be in the bottom quarter of the country’s
income distribution. In 2016, the median income of white families was $61,200 but median family
income for black families was $35,400 and for Hispanic families was $38,500.173
Wealth data. Second, I did not have access to data on the wealth of applicants. As discussed
earlier, these data have enormous implications for the racial dividend of class-based affirmative action.
While African Americans make roughly 60% of what whites make in annual income, the median
wealth of African Americans is just 10% the median wealth of whites.174
Better recruitment. Third, the simulation necessarily understates the racial and
socioeconomic dividend of the alternatives studied because it was limited to the existing pool of
applicants even though evidence suggests that Harvard does a poor job of recruiting disadvantaged

173
See Dettling, Hsu, Jacobs, Moore, & Thompson, “Recent Trends in Wealth-Holding by Race and
Ethnicity,” supra.
174
Id.
52

students to apply.175 Recall that for the class of 2009, for example, Harvard found that roughly twice
as many very high achieving applicants from families making more than $100,000 applied to Harvard
than similar students from families making less than $100,000.176 (There are more than 20,000 very
high achieving low-income applicants who do not attend any of the most selective 238 colleges, much
less Harvard.)177 A more robust applicant pool thus likely could have increased the racial divided in
our simulations.
VII. Conclusion
Under the Fourteenth Amendment, Harvard bears “the ultimate burden of demonstrating,
before turning to racial classifications, that available, workable race-neutral alternatives do not
suffice.”178 Harvard officials have claimed the college is “doing everything possible” to use race-neutral
strategies to promote socioeconomic and racial diversity, and has engaged in “a massive good-faith
effort to do everything that seemed to be effective.”179
The record refutes that assertion. Experience and research demonstrates that there are
numerous ways that universities can achieve the educational benefits of racial and socioeconomic
diversity without using race. Despite all of its financial and academic resources, Harvard has failed to
take even the most rudimentary steps to determine whether there are workable race-neutral strategies

175
See supra Section V.A.1.
176
177
Hoxby & Avery, “The Missing ‘One-Offs,’” supra, p. 35 (finding that two-thirds of 35,000 high
achieving low income students do not attend a selective colleges); see David Leonhardt, Better
Colleges Failing to Lure Talented Poor, New York Times, March 16, 2013,
http://www.nytimes.com/2013/03/17/education/scholarly-poor-often-overlook-better-
colleges.html?pagewanted=all.
178
Fisher, 133 S. Ct. 2411, 2420.
179
Fitzsimmons deposition, pp. 172, 175. See also id. at 176, 179, 204.
53

available. Moreover, a careful investigation of Harvard’s admissions data and practices confirms that
Harvard has at its disposal viable race-neutral alternatives that would provide a net increase in racial
and socioeconomic diversity without requiring the use of race.
Dated: October 16, 2017 s/ Richard D. Kahlenberg
Richard D. Kahlenberg
54

VIII. Appendices
A. Appendix A – Curriculum Vitae
55

RICHARD D. KAHLENBERG
Senior Fellow
The Century Foundation
2040 S Street, N.W.
Washington, D.C. 20009
202-683-4883
kahlenberg@tcf.org
EDUCATION
1986-1989 Harvard Law School, Cambridge, Massachusetts.

J.D., cum laude, June 1989.
1985-1986 University of Nairobi School of Journalism, Nairobi, Kenya.

Certificate, Mass Communications, June 1986.
Rotary International Fellowship.
1981-1985 Harvard College, Cambridge, Massachusetts.

A.B. in Government, magna cum laude, June 1985.
Senior Honors Thesis “Coalition Building and Robert Kennedy’s 1968 Presidential
Campaign”
EMPLOYMENT HISTORY
1998- The Century Foundation (formerly Twentieth Century Fund), Washington, D.C.
Senior Fellow. Coordinating programs involving elementary, secondary and higher
education and organized labor.
1996-1998 Center for National Policy, Washington, D.C.

Fellow. Coordinated project on New Strategies to Promote Equal Opportunity.
1994-1995 Professorial Lecturer and Independent Writer, Washington, D.C.

Taught Cases in Public Policy, George Washington University Department of Public
Administration and completed book on affirmative action.
1993-1994 George Washington University National Law Center, Washington, D.C.

Visiting Associate Professor of Law. Taught Constitutional Law.
1989-1993 Senator Charles S. Robb, Washington, D.C.

Legislative Assistant. Advised Senator on issues relating to Crime, Energy,
Environment, Judicial Appointments, Campaign Finance, and Civil Rights.
56

PUBLICATIONS
I. BOOKS
A Smarter Charter: Finding What Works for Charter Schools and Public Education
(coauthored with Halley Potter) (Teachers College Columbia University Press, 2014). The Washington
Post called A Smarter Charter, “A remarkable new book...Wise and energetic advocates such as
Kahlenberg and Potter can take the charter movement in new and useful directions.”
Why Labor Organizing Should Be a Civil Right: Rebuilding a Middle-Class Democracy by

Enhancing Worker Voice (coauthored with Moshe Z. Marvit) (Century Foundation Press, 2012).
The book was called “a must read” by NAACP President and CEO Benjamin Todd Jealous and “a
persuasive roadmap for extending the protections of the Civil Rights Act to workers who want to
organize a union” by American Federation of Teachers President Randi Weingarten.
Tough Liberal: Albert Shanker and the Battles Over Schools, Unions, Race and Democracy
(Columbia University Press, 2007). The Wall Street Journal called the book “a well researched and
engaging biography,” and Slate labeled it a “stirring account.” The book has also been reviewed in
The Nation, The American Prospect, The Weekly Standard, Newsday, New York Sun, City Journal,
Publishers Weekly, and The Washington Monthly. The book was written with the support of the
Hewlett, Broad and Fordham foundations. It was named one of the Five Best Books on Labor in
the Wall Street Journal
All Together Now: Creating Middle Class Schools through Public School Choice (Brookings
Institution Press, 2001). The book, labeled “a clarion call for the socioeconomic desegregation of
U.S. public schools” by Harvard Educational Review, was said by the Washington Post to make “a
substantial contribution to a national conversation” on education. The book was also reviewed in
Teachers College Record, Education Next, and National Journal. One author called Kahlenberg
“the intellectual father of the economic integration movement.”
The Remedy: Class, Race, and Affirmative Action (Basic Books, 1996). The book was named
one of the best of the year by the Washington Post and William Julius Wilson’s review in the New
York Times called it “by far the most comprehensive and thoughtful argument thus far
for...affirmative action based on class.” The book was also reviewed in The American Lawyer, The
New Yorker, The Progressive, The Washington Monthly, The Detroit News, National Review,
Legal Times, The Atlanta Journal-Constitution, and Publishers Weekly
Broken Contract: A Memoir of Harvard Law School (Hill & Wang/Farrar, Straus & Giroux,
1992). The book, which details the way in which idealistic liberal law students are turned to
corporate law, was called “a forceful cri de coeur” by the L.A. Times. The book was reviewed in
The New York Times, The Washington Post Book World, The Harvard Law Review, The
Washington Monthly, Legal Times, The Boston Globe, The Hartford Courant, The Baltimore
Evening Sun, The St. Petersburg Times, The Detroit News, The Cleveland Plain Dealer, The Dallas
Morning News, and Publishers Weekly. In 1999, the book was reissued by University of
57

Massachusetts Press with a new afterword. The book has also been translated into Japanese and
Chinese.
Editor, The Future of Affirmative Action: New Paths to Higher Education Diversity after
Fisher v. University of Texas (Century Foundation Press, 2014). Chapters include, “Defining the
Stakes,” by Nancy Cantor and Peter Englot; “Promoting Economic Diversity for College
Affordability,” by Sara Goldrick-Rab; “Fisher v. University of Texas and Its Practical Implications
for Institutions of Higher Education,” by Arthur L. Coleman and Teresa E. Taylor; “New Rules for
Affirmative Action in Higher Education,” by Scott Greytak; “Transitioning to Race-Neutral
Admissions,” by Halley Potter; “Striving for Neutrality,” by Marta Tienda; “The Use of
Socioeconomic Affirmative Action at the University of California,” by Richard Sander; “Converging
Perils to College Access for Racial Minorities,” by Richard L. McCormick; “Ensuring Diversity
Under Race-Neutral Admissions at the University of Georgia,” by Nancy G. McDuff and Halley
Potter; “Addressing Undermatch,” by Alexandria Walton Radford and Jessica Howell; “Talent is
Everywhere,” by Danielle Allen; “Reducing Reliance on Testing to Promote Diversity,” by John
Brittain and Benjamin Landy; ‘Advancing College Access with Class-Based Affirmative Action,” by
Matthew N. Gaertner; “Achieving Racial and Economic Diversity with Race-Blind Admissions
Policy,” by Anthony P. Carnevale, Stephen J. Rose, and Jeff Strohl; “The Why, What, and How of
Class-Based Admissions Policy,” by Dalton Conley; “A Collective Path Upward,” by Richard
Sander; and “Increasing Socioeconomic Diversity in American Higher Education,” by Catharine
Hill.
Executive Director (and primary author and editor), Bridging the Higher Education Divide:
Strengthening Community Colleges and Restoring the American Dream (Century Foundation
Press, 2013.) The task force on community colleges, cochaired by Anthony Marx and Eduardo
Padron, included John Brittain, Walter Bumphus, Michele Cahill, Louis Caldera, Patrick Callan,
Nancy Cantor, Samuel Cargile, Anthony Carnevale, Michelle Asha Cooper, Sara Goldrick-Rab,
Jerome Karabel, Catherine Koshland, Felix Matos Rodriguez, Gail Mellow, Arthur Rothkopf,
Sandra Schroeder, Louis Soares, Suzanne Walsh, Ronald Williams, and Joshua Wyner. In addition,
the volume included background papers by Sandy Baum and Charles Kurose; Sara Goldrick-Rab
and Peter Kinsley; and Tatiana Melguizo and Holly Kosiewicz.
Editor, The Future of School Integration: Socioeconomic Diversity as an Education Reform

Strategy (Century Foundation Press, 2012). Chapters include, “Housing Policy is School Policy:
Economically Integrative Housing Promotes Academic Success in Montgomery County, Maryland,”
by Heather Schwartz; “Socioeconomic Diversity and Early Learning: The Missing Link in Policy for
High-Quality Preschools,” by Jeanne L. Reid; “The Cost-Effectiveness of Socioeconomic School
Integration,” by Marco Basile; “The Challenge of High-Poverty Schools: How Feasible is
Socioeconomic School Integration?” by An Mantil, Anne G. Perkins, and Stephanie Aberger; “Can
NCLB Choice Work? Modeling the Effects of Interdistrict Choice on Student Access to Higher-
Performing Schools,” by Meredith P. Richards, Kori J. Stroub, and Jennifer Jellison Holme; “The
Politics of Maintaining Balanced Schools: An Examination of Three Districts,” by Sheneka M.
Williams; and “Turnaround and Charter Schools that Work: Moving Beyond Separate but Equal,”
by Richard Kahlenberg.
58

Editor, Affirmative Action for the Rich: Legacy Preferences in College Admissions (Century
Foundation Press, 2010). Chapters include “Legacy Preferences in a Democratic Republic,” by
Michael Lind; “A History of Legacy Preferences,” by Peter Schmidt; “An Analytical Survey of
Legacy Preferences,” by Daniel Golden; “An Empirical Analysis of the Impact of Legacy
Preferences on Alumni Giving at Top Universities,” by Chad Coffman, Tara O’Neil and Brian Starr;
“Admitting the Truth: The Effect of Affirmative Action, Legacy Preferences, and the Meritocratic
Ideal on Students of Color in College Admissions,” by John Brittain and Eric Bloom; “Legacy
Preferences and the Constitutional Prohibition of Titles of Nobility,” by Carlton Larson; “Heirs of
the American Experiment: A Legal Challenge to Preferences as a Violation of the Equal Protection
Clause of the Constitution and the Civil Rights Act of 1866,” by Steve Shadowen and Sozi Tulante;
“Privilege Paving the Way for Privilege: How Judges Will Confront the Legal Ramifications of
Legacy Admissions to Public and Private Universities,” by Boyce F. Martin Jr. with Donya Khalili;
and “The Political Economy of Legacy Admissions, Taxpayer Subsidies, and Excess ‘Profits’ in
American Higher Education: Strategies for Reform,” by Peter Sacks.
Editor, Rewarding Strivers: Helping Low-Income Students Succeed in College (Century

Foundation Press, 2010). Chapters include: “The Carolina Covenant,” by Edward B. Fiske, and
“How Increasing College Access is Increasing Inequality and What to do About It,” by Anthony P.
Carnevale and Jeff Strohl. William Fitzsimmons called the book part of Century’s “trailblazing
mission to prevent the tragic waste of human talent that threatens America’s future,” while Anthony
Marx declared, “Kahlenberg again gathers the best thinkers on how to challenge this status quo;
what to do, what works, and what does not.”
Editor, Improving on No Child Left Behind: Getting Education Reform Back on Track
(Century Foundation Press, 2008). Chapters include: an analysis of the under-funding of the No
Child Left Behind Act, by William Duncombe, John Yinger and Anna Lukemeyer; a discussion of
the rights of students in low performing schools to transfer to better performing public schools
across district lines, by Amy Stuart Wells and Jennifer Holme; and an exploration of how to improve
the accountability provisions of the act, by Lauren Resnick, Mary Kay Stein, and Sarah Coon. Diane
Ravitch called Improving on No Child Left Behind “the best of the books on this topic.”
Editor, America’s Untapped Resource: Low-Income Students in Higher Education (Century

Foundation Press, 2004). The chapters include: “Socioeconomic Status, Race/Ethnicity, and
Selective College Admissions,” Anthony P. Carnevale and Stephen J. Rose; “Improving the
Academic Preparation and Performance of Low-Income Students in American Higher Education,”
by P. Michael Timpane and Arthur M. Hauptman; and “Low-Income Students and the Affordability
of Higher Education,” by Lawrence E. Gladieux. Carnevale and Rose’s finding, that 74% of
students at selective colleges come from the top socioeconomic quartile and 3% from the bottom
quartile is widely cited.
Editor, Public School Choice vs. Private School Vouchers (Century Foundation Press, 2003).
The volume consists of a compilation of new and previously published materials, including articles
by Edward B. Fiske, Helen F. Ladd, Sean F. Reardon, John T. Yun, Amy Stuart Wells, Richard Just,
Ruy Teixeira, Thad Hall, Gordon MacInnes, Richard C. Leone, and Bernard Wasow.
59

Executive Director (and primary author and editor), Divided We Fail: Coming Together
Through Public School Choice. The Report of The Century Foundation Task Force on the
Common School, (Century Foundation Press, 2002). The task force on school integration, chaired
by Lowell Weicker, included Joseph Aguerrebere, Ramon Cortines, Robert Crain, John Degnan,
Peter Edelman, Christopher Edley, Kim Elliott, Jennifer Hochschild, Helen Ladd, Marianne
Engelman Lado, Leonard Lieberman, Ann Majestic, Dennis Parker, Felipe Reinoso, Charles S.
Robb, David Rusk, James Ryan, Judi Sikes, John Brooks Slaughter, Dick Swantz, William Trent,
Adam Urbanski, Amy Stuart Wells, and Charles V. Willie. In addition, the volume included
background papers by Duncan Chaplin, David Rusk, Edward B. Fiske, William H. Freivogel,
Richard Mial, and Todd Silberman.
Editor, A Notion at Risk: Preserving Public Education as an Engine for Social Mobility
(Century Foundation Press, 2000). The book identifies individual sources of inequality and
proposes concrete public policy remedies. The chapters include: “Summer Learning and Home
Environment” by Doris Entwisle, Karl Alexander and Linda Olson of Johns Hopkins; “Equalizing
Education Resources for Advantaged and Disadvantaged Children” by Richard Rothstein of the
Economic Policy Institute; “High Standards: A Strategy for Equalizing Opportunities to Learn?” by
Adam Gamoran of the University of Wisconsin; “Inequality in Teaching and Schooling: Supporting
High-Quality Teaching and Leadership in Low Income Schools” by Linda Darling-Hammond and
Laura Post of Stanford; “Charter Schools and Racial and Social Class Segregation: Yet Another
Sorting Machine?” by Amy Stuart Wells, Jennifer Jellison Holme, Alejandra Lopez, and Camille
Wilson Cooper of UCLA; “Student Discipline and Academic Achievement” by Paul Barton of the
Educational Testing Service; and “Critical Support: The Public View of Public Education,” by Ruy
Teixeira of the Century Foundation
II. BOOK CHAPTERS
“The Bipartisan, and Unfounded, Assault on Teachers’ Unions,” in Michael B. Katz and Mike Rose
(eds.), Public Education Under Siege (Philadelphia: University of Pennsylvania Press, 2013.)
“Socioeconomic Integration and Segregation,” in James A. Banks (ed.), Encyclopedia of Diversity in

Education (Thousand Oaks, CA: Sage Publications, 2012).
“Socioeconomic School Integration: Preliminary Lessons from More than 80 Districts,” in Erica
Frankenberg and Elizabeth DeBray-Pelot (eds.), Integrating Schools in a Challenging Society: New Policy and
Legal Options for a Multiracial Generation, (Chapel Hill, N.C.: University of North Carolina Press, 2011)
“Combating School Segregation in the United States,” in Guido Walraven, Dorothee Peters, Eddie
Denessen and Joep Bakker (eds.), International Perspectives on Countering School Segregation (Dutch
National Knowledge Centre for Mixed Schools, 2010).
“Levelling the School Playing Field: A Critical Aim for New York’s Future,” in Jonathan P. Hicks
and Dan Morris (eds.), From Disaster to Diversity: What’s Next for New York City’s Economy? (New York:
Drum Major Institute, 2009).
60

“Higher Education Access,” in RobertMcKinnon (ed), Actions Speak Loudest (Guilford, CT: Globe
Pequot Press, 2009)
“Socioeconomic School Integration,” in Marybeth Shinn and Hirokazu Yoshikawa (eds), Toward
Positive Youth Development: Transforming Schools and Community Programs (New York: Oxford University
Press, 2008).
“The History of Collective Bargaining Among Teachers,” in Jane Hannaway and Andrew J.
Rotherham (eds) Collective Bargaining in Education: Negotiating Change in Today’s Schools (Cambridge, MA:
Harvard Education Press, 2006).
“Socioeconomic School Integration: A Symposium,” in Chester Hartman (ed), Poverty and Race in
America: The Emerging Agendas (New York: Rowman and Littlefield, Publishers, 2006).
“The Return of ‘Separate but Equal,’” in James Lardner and David Smith (eds), Inequality Maters: The
Growing Divide in America and Its Poisonous Consequences (New York: New Press, 2005).
“Economic School Integration,” in Stephen J. Caldas and Carl L. Bankston III (eds), The End of
Desegregation? (New York: Nova Science Publishers Inc., 2003).
“President Clinton’s Race Initiative: Promise and Disappointment,” and “How to Achieve One
America: Class, Race, and the Future of Politics,” in Stanley A. Renshon (ed), One America? Political
Leadership, National Identity and the Dilemmas of Diversity (Washington DC: Georgetown University
Press, 2001).
III. LAW REVIEW ARTICLES
“‘Architects of Democracy’: Labor Organizing as a Civil Right,” (with Moshe Marvit) 9 Stanford
Journal of Civil Rights & Civil Liberties 213 (June 2013).
“Reflections on Richard Sander’s Class in American Legal Education,” 88 Denver University Law
Review 719 (September 2011).
“Socioeconomic School Integration,” 85 North Carolina Law Review 1545 (June 2007).
“Remarks: Symposium – Brown v. Board of Education at Fifty: Have We Achieved Its Goals?” 78
St. John’s Law Review 295 (Spring 2004).
“Socioeconomic School Integration Through Public School Choice: A Progressive Alternative to

Vouchers,” 45 Howard Law Journal 247 (Winter 2002).
"Class-Based Affirmative Action," 84 California Law Review 1037 (July 1996). .
61

"Getting Beyond Racial Preferences: The Class-Based Compromise," 45 American University Law
Review 721 (February 1996).
IV. PERIODICAL ARTICLES
Have written articles in the popular press for the American Educator, American Prospect, American
School Board Journal, Atlantic Monthly, Baltimore Sun, Boston Globe, Boston Review, Chicago
Sun Times, Christian Science Monitor, Chronicle of Higher Education, Civil Rights Journal,
Education Next, Education Week, Educational Leadership, Forward, Inside Higher Education,
Jurist, Journal of Blacks in Higher Education, Journal of Commerce, Legal Affairs, Legal Times,
New Labor Forum, Nation, New Republic, New York Daily News, New York Times, Orlando
Sentinel, Philadelphia Inquirer, Political Science Quarterly, Poverty and Race, Principal Magazine,
Slate, Wall Street Journal, Washington Monthly, Washington Post and Wilson Quarterly.
Articles on Affirmative Action:
4/3/95 Author, “Class, Not Race: A Liberal Case for Junking Old-Style Affirmative Action
in Favor of Something that Works,” The New Republic (cover story).
7/17/95 Author, “Affirmative Action by Class,” Washington Post, A19
7/17/95 Author, “Equal Opportunity Critics: Class vs. race, round 2,” New Republic.
2/96 Author, “Getting Beyond Racial Preferences: The Class-Based Compromise,”

American University Law Review.
6/2/96 Author, “Bob Dole’s Colorblind Injustice: On Affirmative Action, He Caves to Big
Business,” Outlook Section, Washington Post.
7/96 Author, “Class-Based Affirmative Action,” California Law Review.
8/23/96 Author, “The Sound of Affirmative Action,” The Forward.
9/13/96 Author, “Dishonest Defenders of Racial Preferences,” Wall Street Journal.
10/7/96 Author, “Goal Line,” (re Jack Kemp and affirmative action), The New Republic.
11/4/96 Author, “Need-based affirmative action,” Christian Science Monitor.
12/96 Author, “Defend It, Don’t Mend It: Clinton’s affirmative action man has little bad to
say about racial preferences,” The Washington Monthly.
12/2/96 Author, “A Sensible Approach to Affirmative Action,” The Washington Post.
62

4/20/97 Author, “Need-based affirmative action in the spotlight,” Orlando Sentinel.
1/19/98 Author, “Affirmative Action? Yes: But let’s base it on need rather than on race,”
Philadelphia Inquirer.
Spring ’98 Author, “Class-Based Affirmative Action: A Natural for Labor,” New Labor Forum.
6/98 Author, “In Search of Fairness: A Better Way,” The Washington Monthly.
11/98 Author, “Style, not Substance,” The Washington Monthly, pp. 45-48.
1/19/99 Author, “Class-based affirmative action,” The Boston Globe.
9/21/99 Author, “The Colleges, the Poor, And the SATs” Washington Post, A19.
7-8/00 Author, “Class Action: The good and the bad alternatives to affirmative action,” The
Washington Monthly, 39-43.
9/15/01 Author, “President Clinton’s Racial Initiative: Promise and Disappointment,”

(Chapter 4); and “How to Achieve One America: Class, Race, and the Future of Politics,” (Chapter
11), in Stanley A. Renshon (ed) One America? Political Leadership, National Identity, and the Dilemmas of
Diversity (Georgetown University Press)
Spring/02 Author, Review of John David Skrentny “Color Lines,” Political Science Quarterly, pp.
144-145.
9/9/03 Author, “The Conservative victory in Grutter and Gratz,” Jurist (symposium with
Derick Bell, Peter Schuck, Susan Low Bloch and others).
1/14/04 Author, “Q&A: Low-income college students are increasingly left behind,” USA
Today, p.7D.
3/19/04 Author, “Toward Affirmative Action for Economic Diversity,” Chronicle of Higher
Education.
5/05 Author, “Class Action: Why education needs quotas for poor kids,” Washington
Monthly
11/10/06 Author, “Time for a New Strategy,” [re the Michigan affirmative action vote] Inside
Higher Education.
3/07 Author, “Invisible Men: Race is no longer the unacknowledged dividing line in
America. Class Is,” The Washington Monthly.
63

2/4/08 Author, “Obama’s RFK Moment: How he could win over working class whites,”
Slate.
5/12/08 Author, “Barack Obama and Affirmative Action,” Inside Higher Education.
5/23/08 Author, “A touch of class” (Obama and affirmative action), Guardian America.
11/6/08 Author, “What’s Next for Affirmative Action?” The Atlantic.
9/30/09 Author, “The Next Step in Affirmative Action: Class-based systems can skirt court
and ballot defeats – and do a better job of addressing socioeconomic diversity” Washington Monthly
Online. [Referenced in Steve Benen, “Political Animal,” Washington Monthly.Com 9/30/09]
12/16/09 Author (along with Julian Bond, Lee Bollinger, Jamie Merisotis and others),
“Reactions: Is It Time for Class-Based Affirmative Action?” The Chronicle of Higher Education.
3/3/10 Author, “Disadvantages,” [review of Thomas Espenshade and Alexandria Walton

Radford, No Longer Separate, Not Yet Equal], New Republic.
4/2/10 Author, “The Affirmative Action Trap,” The American Prospect
5/23/10 Author, “Five myths about college admissions,” Outlook Section, The Washington
Post, p. B3 [
5/30/10 Author, “Toward a New Affirmative action,” Chronicle of Higher Education Review.
6/10/10 Author, “A Response to the Critics of Class-Based Affirmative Action,” Innovations

Blog, Chronicle of Higher Education.
6/18/10 Author, “Rewarding Strivers,” Innovations Blog, Chronicle of Higher Education.
7/7/10 Author, “The French Twist on Affirmative Action,” Innovations Blog, Chronicle of
Higher Education.
7/20/10 Author, “Ross Douthat, White Anxiety and Diversity,” Innovations Blog, Chronicle of
Higher Education.
7/28/10 Author, “Next Week’s Court Hearing on Affirmative Action,” Innovations Blog, The
Chronicle of Higher Education.
9/17/10 Author, “Colorado’s Affirmative Action Experiment,” Innovations Blog, Chronicle of

Higher Education.
9/22/10 Author, “10 Myths about Legacy Preferences in College Admissions,” Chronicle of
Higher Education.
64

9/24/10 Author, “A Response to Supporters of Legacy Preferences,” Innovations Blog,

11/3/10 Author, “Arizona’s Affirmative Action Ban,” Innovations Blog, Chronicle of Higher
Education.
11/22/10 Author, “New Ways to Achieve Diversity in California,” Innovations Blog, Chronicle
of Higher Education.
11/24/10 Author, “South Africa’s Affirmative Action Debate,” Innovations Blog, Chronicle of
Higher Education.
11/29/10 Author, “Does it Matter Where You Go to College? Numbers Favor Top Schools,”
Room for Debate, The New York Times.
12/10/10 Author, “Oxford’s Research-Based Affirmative Action,” Innovations Blog, Chronicle

1/6/11 Author, “Do Legacy Preferences Count More than Race?” Innovations Blog,
1/27/11 Author, “The Next Big Affirmative-Action Case,” Innovations Blog, Chronicle of
Higher Education.
2/11/11 Author, “Nick Clegg’s Attack on Social Segregation in Higher Education,”

Innovations Blog, Chronicle of Higher Education.
3/3/11 Author, “Are Legacy Preferences ‘Defensible Corruption?’” Innovations Blog,

3/10/11 Author, “Who Benefits Most from Attending Top Colleges?” Innovations Blog,
4/5/11 Author, “The ‘Reverse Discrimination Sentiment,’” Innovations Blog, Chronicle of

Higher Education. [cited in “Attitudes Toward Access to Higher Education Affected by Race, Study
Shows,” Huffington Post, 4/6/11]
4/29/11 Author, “The Decline of Legacy Admissions at Yale,” Innovations Blog, Chronicle of
Higher Education.
5/11/11 Author, “Purchasing Seats at Top British Universities,” Innovations Blog, The
65

5/26/11 Author, “Restoring LBJ’s Original Vision of Affirmative Action,” Innovations Blog,
The Chronicle of Higher Education.
6/21/11 Author, “Is Affirmative Action Headed Back to the Supreme Court?” Innovations
7/5/11 Author, “Steps Forward and Back on Affirmative Action, Innovations Blog, Chronicle
8/4/11 Author, “Achieving Racial Diversity Without Using Race,” Innovations Blog,
8/17/11 Author, “Race, Class and the New ACT Results,” Innovations Blog, Chronicle of
Higher Education.
9/13/11 Author, “An Affirmative Action Success,” Innovations Blog, Chronicle of Higher
Education.
9/27/11 Author, “Reflections on Richard Sander’s Class in American Legal Education,”

Denver University Law Review.
9/28/11 Author, “Economic Segregation in American Law Schools,” Innovations Blog,

10/3/11 Author, “The First Monday in October,” [re Fisher v. Texas], Innovations Blog,
10/17/11 Author, “A Third Path on Affirmative Action?” Innovations Blog, Chronicle of Higher
Education.
11/2/11 Author, “The Amicus Briefs on Affirmative Action,” Innovations Blog. Chronicle of
Higher Education [re Sander and Taylor brief]
11/13/11 Author, “Affirmative Action for the Rich,” (with Stephen Joel Trachtenberg, John
Brittain, Peter Sacks, Michele Hernandez, Terry Shepard and Debra Thomas), “Why Do Top
Schools Still Take Legacy Applicants?” Room For Debate Blog, New York Times.
11/17/11 Author, “Legacy Preferences at Private Universities,” Innovations Blog, Chronicle of

Higher Education.
11/21/11 Author, “What Should Obama Do on Affirmative Action?” Innovations Blog,

11/29/11 Author, “The Days of Legacy Admissions May be Numbered,” Minding the Campus
Blog.
66

12/5/11 Author, “Obama’s New Guidance on Diversity,” Innovations Blog, Chronicle of Higher
Education
1/8/12 Author, “The Broader Significance of Fisher v. Texas,” Innovations Blog, Chronicle of
Higher Education.
2/9/12 Author, “Waiting on Fisher v. Texas,” Innovations Blog, Chronicle of Higher Education.
2/21/12 Author, “Fisher v. Texas: How Obama Should Talk About Affirmative Action,”
Slate.
2/22/12 Author, “Will the Supreme Court Kill Diversity?” Innovations Blog, Chronicle of
Higher Education.
3/29/12 Author, “Three Myths about Affirmative Action,” Innovations Blog, Chronicle of
Higher Education.
4/20/12 Author, “Does the Texas Top-10%-Plan Work?” Innovations Blog, Chronicle of Higher
Education.
5/10/12 Author, “A Bad Week for Elizabeth Warren - and Affirmative Action,” Chronicle of
Higher Education.
5/29/12 Author, “Overturning or Modifying ‘Grutter v. Bollinger’?” Innovations Blog,

6/1/12 Author, “Asian Americans and Affirmative Action,” Innovations Blog, Chronicle of
Higher Education. [cited in Asian American Educational Foundation, 6/4/12
6/25/12 Author, “Should Colleges Consider Legacies in the Admissions Process? No: It
Hurts the Deserving,” (debate with Stephen Joel Trachtenberg), Wall Street Journal.
7/11/12 Author, “Transparency About Legacy Preferences,” (re MIT), Innovations Blog,
8/8/12 Author, “The University of Texas’s Weak Affirmative-Action Defense,” Innovations

67

8/10/12 Author, “President Obama’s Affirmative Action Problem and What He

Should Do About It,” The New Republic.
8/16/12 Author, “Obama’s Affirmative-Action Brief,” Innovations Blog, Chronicle of

Higher Education
9/4/12 Author, “Fisher Symposium: Race-neutral alternatives work,” SCOTUSblog.
9/11/12 Author, “In defense of race-neutral alternative jurisprudence,” Fisher

Symposium, SCOTUSblog,
9/17/12 Author, “3 views on whether US still needs affirmative action: A middle way
- Use affirmative action to help economically disadvantaged students of all races,” Christian
Science Monitor.
10/3/12 Author (with Halley Potter), “A Better Affirmative Action: State Universities
that Created Alternatives to Racial Preferences,” The Century Foundation.
10/3/12 Author, “A New Kind of Affirmative Action Can Ensure Diversity,”

10/10/12 Author, “A Liberal Critique of Racial Preferences,” Wall Street Journal, A17.
10/10/12 Author, “The Race to the Flop – The Problem with Affirmative Action,” The
New Republic.
10/11/12 Author, “The Achilles Heel of Affirmative Action,” Conversation Blog,

Chronicle of Higher Education
10/22/12 Author, “Diversity or Discretion? Essay questions motives of U. Of Texas

in affirmative action case,” Inside Higher Education.
11/7/12 Author, “Another Nail in Affirmative Action’s Coffin,” The Conversation

11/9/12 Author, “Economic Affirmative Action,” The Washington Post, A27. [

12/13/12 Author, “Supreme Court Double Header: The Arguments for Gay Marriage
Undermine Affirmative Action,” Slate.
12/19/12 Author (with John Brittain), “When Wealth Trumps Merit,” in Room for
Debate (along with Ron Unz, S.B. Woo and others), “Fears of an Asian Quota in the Ivy
League,” New York Times.
1/17/13 Author, “Where Sotomayor and Thomas Agree on Affirmative Action,”

Conversation Blog, Chronicle of Higher Education.
3/12/13 Author, “Presidents in denial on use of race-based admissions preferences,”

Inside Higher Ed.
68

3/19/13 Author, “The Untapped Pool of Low-Income Strivers,” The Conversation

5/13/13 Author, “Addressing the Economic Divide,” in “Diversity Without

Affirmative Action?” Room for Debate (with Patricia Williams, Richard Vedder, Marta
Tienda, and John Brittain), New York Times.
6/2/13 Author, “End race-based affirmative action? Yes: Class matters much more,”
New York Daily News.
6/24/13 Author, “The Next Affirmative Action? Universities Should Respond to the
Supreme Court Ruling by Giving a Bigger Admissions Boost to Low-Income Students,”
Slate.
6/24/13 Author, “A new affirmative action based on class,” USA Today.
6/25/13 Author, “The Class-Based Future of Affirmative Action,” The American

Prospect.
6/26/13 Author, “Why Everyone Is Wrong about Fisher vs. University of Texas,”
Washington Monthly9/2/13 Author, “A Refreshingly Honest Book About
Affirmative Action,” The New Republic.
9/27/13 Author, “The Misleading Administrative Guidance on Affirmative Action,”

Chronicle of Higher Education. [
10/14/13 Author, “A Fresh Chance to Rein in Racial Preferences: The Supreme

Court’s Fisher decision last spring has been largely ignored. Now the justices can strengthen
it.” Wall Street Journal, A15.
11/21/13 Author, “In defense of proxies,” (symposium with Sigal Alon, John Skrentny
and others), Contexts: American Sociological Association, Fall 2013.
3/11/14 Author, “No Longer Black and White: Why Liberals Should Let California’s
Affirmative Action Ban Stand,” Slate.
4/10/14 Author, “Good News for Low-Income Students: A campaign to challenge

racial-preference policies at three universities should move higher education toward
affirmative action based on class,” Conversation Blog, Chronicle of Higher Education.
4/22/14 Author, “Did the Supreme Court Just Kill Affirmative Action? No. But it’s
clearly on its deathbed. That might not be such a bad thing,” Politico.
4/27/14 Author, “Affirmative Action Fail: The Achievement Gap By Income is

Twice the Gap by Race,” The New Republic.
69

4/27/14 Coauthor (with Halley Potter), “Focus on Class Instead,” in Room for
Debate, “Should Affirmative Action Be Based on Income?” New York Times.
6/17/14 Author, “What Sotomayor Gets Wrong About Affirmative Action,” Chronicle
7/17/14 Author, “Affirmative-Action Ruling Could Be Pyrrhic Victory for UT-
Austin,” Chronicle of Higher Education.
9/12/14 Author (with Peter Dreier), “Making Top Colleges Less Aristocratic and
More Meritocratic,” The Upshot Section, The New York Times.
11/20/14 Author, “Achieving College Diversity Without Discriminating by Race,” Wall

Street Journal, p. A17.
12/2/14 Author, “Why Labor Should Support Class-Based Affirmative Action,” New
Labor Forum; and “Richard D. Kahlenberg Responds” (to Julie Park), New Labor Forum.
2/13/15 Author, “Affirmative Action for the Advantaged at UT-Austin,” The

Conversation Blog, Chronicle of Higher Education.
5/18/15 Author, “For the Sake of Working-Class Students, Give ‘Fisher’ Another
Chance,” Chronicle of Higher Education.
6/4/15 Author, “Race-Based Admissions: The Right Goal, but the Wrong Policy”
(re LBJ 50th anniversary of affirmative action), The Atlantic.
7/23/15 Author, “How a New Report May Hasten the End of Racial Preferences in
Admissions,” Chronicle of Higher Education.
12/8/15 Author, “Texas’ college admissions policies give the well-to-do a leg up,” Los
Angeles Times.
12/8/15 Author, “The Future of Affirmative Action: How a conservative decision at

the Supreme Court could lead to a liberal outcome,” The Atlantic.
12/11/15 Author, “Right-wing judge for working-class kids: In praise of Samuel

Alito’s stand on affirmative action in higher education,” New York Daily News.
12/14/15 Author, “Scalia’s Rant and Alito’s Reasoning: What will influence Anthony
Kennedy and determine the fate of affirmative action in Fisher?” Slate.
12/24/15 Author (with Anthony Carnevale and Jeff Strohl) “Should Race Be a Factor
in College Admissions?” Letter to Editor (re Sigal Alon oped), New York Times, A18.
1/11/16 Coauthor (with Jennifer Giancola), “True Merit: Ensuring Our Brightest
Students Have Access to Our Best Colleges and Universities, Jack Kent Cooke Foundation.
70

3/14/16 Author, “Racial Diversity Without Racial Preferences: The growing case for
class-based affirmative action in college admissions,”, Washington Monthly.
6/23/16 Author, “A win for wealthy students,” Fisher II Symposium, Scotusblog.
7/1/16 Author, “How the Legal Victory on Affirmative Action Undermines the
Progressive Coalition: The University of Texas’ policies make it harder to build an enduring
cross-racial class-based coalition in American politics,” The Washington Monthly.
1/4/17 Author, “How to Protect Diversity During Trump’s Presidency: Liberals

should expand the concept to include socioeconomic status,” The New Republic.
4/14/17 Author, “Harvard’s Class Gap: Can the academy understand Donald
Trump’s ‘forgotten’ Americans?” Harvard Magazine, May-June 2017, 35-39.
8/3/17 Author, “The right fix to affirmative action: Progressives should answer the
President’s apparent plans with their own reforms” New York Daily News.
V. ACADEMIC/PUBLIC POLICY APPEARENCES
Have spoken before audiences in numerous settings: government (U.S. Commission on

Civil Rights; U.S. Department of Education); academic associations (American Educational
Research Association; Association for Public Policy Analysis and Management); colleges and
universities (American, Amherst, Centre, Columbia, Flagler, George Washington,
Georgetown, Harvard, Howard, Marymount, Middlebury, Missouri Western, National
Defense University, New York University, Oberlin, Pitzer, Rutgers, St. Johns, St. Louis,
Stanford, Stetson, Suffolk, University of Chicago, University of Maine, University of
Maryland, University of North Carolina, University of Pennsylvania, University of
Richmond, University of Southern California, University of Virginia, West Chester, William
and Mary, Yale); and public policy forums (American Association of Community Colleges,
American Enterprise Institute, Brookings Institution, Cato Institute, Center for American
Progress, Chautauqua Institution, College Board, Committee for Economic Development,
Council for Opportunity in Education, Economic Policy Institute, Demos, Education Law
Association, Education Sector, Ethics and Public Policy Center, Fordham Institute,
Hechinger Institute, KnowledgeWorks Foundation, National Academy of Sciences Board on
Testing and Assessment, National Alliance for Public Charter Schools, National Council of
Educational Opportunity, New America Foundation, New York Historical Society, New
York Public Library, Pioneer Institute, Progressive Policy Institute, William T. Grant
Foundation, and Woodrow Wilson Center).
VI. AWARDS
William A. Kaplin Award for Excellence in Higher Education Law and Policy Scholarship,
Stetson Law School National Conference on Law & Higher Education (2013).
VII. EXPERIENCE CONSULTING WITH SCHOOL DISTRICTS
71

Chicago Public Schools (Illinois) (2008-2010). Helped school district create a

socioeconomic school integration plan for magnet and selective enrollment schools.
Charlotte-Mecklenburg Schools (North Carolina) (2016). Helped school district create a

socioeconomic school diversity plan.
New Haven Public Schools (2017). Helping school district implement a socioeconomic
diversity plan for magnet schools.
Pasadena Educational Foundation (California). (2006 and 2016). Prepared reports for
educational foundation associated with Pasadena Unified School District recommending
adoption of socioeconomic diversity policies.
72

B. Appendix B – Documents Relied Upon or Considered in Forming

Opinion
73

In addition to the academic literature cited above, I considered the following facts and data
specific to this case:
• SFFA Complaint
• Harvard Answer to SFFA Complaint
• SFFA Notice of Subpoena to U.S. Department of U.S. Department of Education
• Harvard’s Responses to SFFA’s Second Interrogatories
• Deposition Transcript of Roger Banks and Exhibits Thereto
• Deposition Transcript of Grace Cheng and Exhibits Thereto
• Deposition Transcript of Sally Donahue and Exhibits Thereto
• Deposition Transcript of Erin Driver-Linn and Exhibits Thereto
• Deposition Transcript of Drew Faust and Exhibits Thereto
• Deposition Transcript of William Fitzsimmons and Exhibits Thereto
• Deposition Transcript of Kaitlin Howrigan and Exhibits Thereto
• Deposition Transcript of Rakesh Khurana and Exhibits Thereto
• Deposition Transcript of Christopher Looby and Exhibits Thereto
• Deposition Transcript of Marlyn McGrath and Exhibits Thereto
• Second Deposition Transcript of Marlyn McGrath and Exhibits Thereto
• Deposition Transcript of Lucerito Ortiz and Exhibits Thereto
• Deposition Transcript of Tia Ray and Exhibits Thereto
• Deposition Transcript of Michael Smith and Exhibits Thereto
• Deposition Transcript of Brock Walsh and Exhibits Thereto
• HARV00002730
• HARV00007396-7398
• HARV00007799-7802
• HARV00007803-7864
• HARV00022931-22936
• HARV00023547-23555
• HARV00031687-31772
• HARV00032957-33022
• HARV00065570 -65612
• HARV00065741-65774
• HARV00072381
• HARV00075704-75715
• HARV00077521-77822
74

C. Appendix C – Simulations
75

Simulation One: Half-Athlete Preference

Turn off Preferences: Legacy, Athlete, Race, Early Decision, Staff Kid, Faculty Kid, Dean Director, Disadvantaged,
Waiver, First Gen, Fin Aid Applicant
Assign Disadvantaged Applicants Half-Athlete Preferences
Estimation is based on Extended Sample and Excludes Overall Rating
Exclude Heterogeneity in Demographic Effects
2014 2015 2016 2017 2018 2019

Status Quo
White 0.505 0.474 0.455 0.431 0.443 0.404
African American 0.122 0.130 0.112 0.128 0.132 0.136
Hispanic 0.099 0.124 0.103 0.115 0.132 0.129
Asian 0.219 0.217 0.228 0.219 0.214 0.237
Other 0.055 0.055 0.101 0.106 0.080 0.093
Non-Disadvantaged 0.821 0.815 0.840 0.846 0.865 0.826

Disadvantaged 0.179 0.185 0.160 0.154 0.135 0.174
Academic Index 227.2 227.2 227.9 227.8 228.5 227.8

Extracurricular Rating 2.425 2.410 2.440 2.390 2.430 2.390
Personal Rating 2.253 2.270 2.270 2.280 2.260 2.300
Assign Half-Athlete Preferences

White 0.478 0.445 0.417 0.414 0.412 0.383
Hispanic 0.094 0.103 0.105 0.091 0.108 0.114
Asian 0.325 0.335 0.307 0.317 0.341 0.340
Other 0.040 0.048 0.110 0.115 0.081 0.097

Disadvantaged 0.363 0.378 0.375 0.348 0.347 0.460
Academic Index 228.56 228.53 228.54 229.28 229.53 228.74

Personal Rating 2.28 2.28 2.29 2.29 2.27 2.31
Simulation Two: Half-Athlete Preference, Expanded Pool

Turn off Preferences: Legacy, Athlete, Race, Early Decision, Staff Kid, Faculty Kid, Dean Director, Disadvantaged, Waiver, First Gen, Fin Aid
Applicant
Assign Disadvantaged Applicants Half-Athlete Preferences
When running counterfactual, double number of disadvantaged applicants
2014 2015 2016 2017 2018 2019
Status Quo White 0.505 0.474 0.455 0.431 0.443 0.404

Hispanic 0.099 0.124 0.103 0.115 0.132 0.129
Asian 0.219 0.217 0.228 0.219 0.214 0.237
Other 0.055 0.055 0.101 0.106 0.080 0.093

Disadvantaged 0.179 0.185 0.160 0.154 0.135 0.174
Academic Index 227.2 227.2 227.9 227.8 228.5 227.8

Personal Rating 2.253 2.270 2.270 2.280 2.260 2.300
Assign Half-Athlete Preferences White 0.428 0.390 0.373 0.369 0.370 0.346
Hispanic 0.123 0.131 0.135 0.117 0.136 0.137
Asian 0.328 0.338 0.308 0.320 0.345 0.345
Other 0.039 0.050 0.104 0.111 0.078 0.091

Disadvantaged 0.585 0.602 0.599 0.566 0.562 0.681
Academic Index 227.52 227.29 227.19 228.06 228.41 227.65

Personal Rating 2.26 2.28 2.26 2.27 2.27 2.29
Simulation Three: Neighborhood Percentage Rule

Turn off Preferences: Legacy, Athlete, Race, Early Decision, Staff Kid, Faculty Kid, Dean Director, Disadvantaged, Waiver, First Gen,
Fin Aid Applicant
Assign even number of admits from each neighborhood cluster
2014 2015 2016 2017 2018 2019

NO SES Boost White 0.508 0.480 0.445 0.439 0.448 0.437
Hispanic 0.099 0.109 0.093 0.102 0.105 0.100
Asian 0.284 0.290 0.277 0.276 0.295 0.291
Other 0.038 0.043 0.111 0.107 0.078 0.095

Disadvantaged 0.188 0.190 0.199 0.166 0.160 0.200
Academic Index 228.41 228.50 228.84 229.28 229.80 229.84

Personal Rating 2.30 2.28 2.31 2.30 2.27 2.29
Half Athlete Boost White 0.460 0.433 0.409 0.402 0.417 0.379
Hispanic 0.119 0.131 0.128 0.122 0.126 0.137
Asian 0.285 0.288 0.269 0.276 0.298 0.295
Other 0.041 0.045 0.096 0.104 0.072 0.093

Disadvantaged 0.451 0.470 0.469 0.443 0.441 0.570
Academic Index 226.20 226.45 226.51 227.03 227.66 227.00

Personal Rating 2.32 2.33 2.33 2.33 2.31 2.34
Status Quo White 0.505 0.474 0.455 0.431 0.443 0.404

Hispanic 0.099 0.124 0.103 0.115 0.132 0.129
Asian 0.219 0.217 0.228 0.219 0.214 0.237
Other 0.055 0.055 0.101 0.106 0.080 0.093

Disadvantaged 0.179 0.185 0.160 0.154 0.135 0.174
Academic Index 227.2 227.2 227.9 227.8 228.5 227.8

Personal Rating 2.253 2.270 2.270 2.280 2.260 2.300
Simulation Four: Half-Athlete Preference, Neighborhood Percentage Rule, Athlete Preference Turned On
Turn off Preferences: Legacy, Race, Early Decision, Staff Kid, Faculty Kid, Dean Director, Disadvantaged, Waiver, First Gen, Fin Aid Applicant
Keep athlete preferences
2014 2015 2016 2017 2018 2019

Hispanic 0.100 0.109 0.094 0.099 0.098 0.100
Asian 0.263 0.264 0.257 0.256 0.275 0.269
Other Minority 0.040 0.048 0.109 0.106 0.074 0.091

Disadvantaged 0.185 0.186 0.199 0.160 0.157 0.196
URM Non-Disadvantaged 201 205 174 196 195 192

URM Disadvantaged 146 161 139 132 115 130
Academic Index 226.92 226.97 227.41 227.82 228.29 228.35

Personal Rating 2.33 2.30 2.34 2.33 2.31 2.31
Hispanic 0.117 0.134 0.127 0.119 0.122 0.135
Asian 0.267 0.265 0.253 0.252 0.276 0.276
Other Minority 0.042 0.047 0.096 0.102 0.070 0.092

Disadvantaged 0.435 0.448 0.451 0.423 0.430 0.543

Academic Index 224.97 225.26 225.41 225.90 226.30 225.92

Personal Rating 2.34 2.34 2.36 2.35 2.35 2.34
Status Quo White 0.505 0.474 0.455 0.431 0.443 0.404

Hispanic 0.099 0.124 0.103 0.115 0.132 0.129
Asian 0.219 0.217 0.228 0.219 0.214 0.237
Other Minority 0.055 0.055 0.101 0.106 0.080 0.093

Disadvantaged 0.179 0.185 0.160 0.154 0.135 0.174

Academic Index 227.2 227.2 227.9 227.8 228.5 227.8

Personal Rating 2.253 2.270 2.270 2.280 2.260 2.300
Simulation Five: Neighborhood Percentage Rule, Expanded Pool

Turn off Preferences: Legacy, Athlete, Race, Early Decision, Staff Kid, Faculty Kid, Dean Director, Disadvantaged, Waiver, First Gen,
Fin Aid Applicant
2014 2015 2016 2017 2018 2019

Hispanic 0.105 0.112 0.101 0.111 0.109 0.107
Asian 0.286 0.288 0.267 0.281 0.293 0.293
Other 0.040 0.043 0.109 0.102 0.080 0.093

Disadvantaged 0.298 0.289 0.304 0.263 0.255 0.304
Academic Index 228.66 228.49 228.77 229.33 229.83 229.89

Personal Rating 2.25 2.24 2.25 2.26 2.23 2.25
Hispanic 0.140 0.147 0.141 0.135 0.143 0.146
Asian 0.284 0.294 0.267 0.271 0.292 0.300
Other 0.044 0.048 0.090 0.100 0.072 0.088

Disadvantaged 0.652 0.656 0.653 0.636 0.635 0.742
Academic Index 225.94 225.91 225.91 226.68 227.33 226.81

Personal Rating 2.28 2.29 2.28 2.29 2.29 2.30
Status Quo White 0.505 0.474 0.455 0.431 0.443 0.404

Hispanic 0.099 0.124 0.103 0.115 0.132 0.129
Asian 0.219 0.217 0.228 0.219 0.214 0.237
Other 0.055 0.055 0.101 0.106 0.080 0.093

Disadvantaged 0.179 0.185 0.160 0.154 0.135 0.174
Academic Index 227.2 227.2 227.9 227.8 228.5 227.8

Personal Rating 2.253 2.270 2.270 2.280 2.260 2.300
EXHIBIT B

Plaintiff,
v.
Civil Action No. 1:14-cv-14176-ADB

CORPORATION),
Defendant.
REBUTTAL EXPERT REPORT OF RICHARD D. KAHLENBERG
i

TABLE OF CONTENTS
I. Executive Summary ................................................................................................................................... 1
II. Harvard’s Witnesses Fail To Refute the Substantial Body of Evidence Showing That Selective
Colleges and Universities Can Maintain or Increase Diversity Through Race-Neutral Strategies
Without Sacrificing Academic Quality. ................................................................................................... 2
A. Card incorrectly concludes that most research fails to find viable race-neutral strategies. ....... 2
B. Card incorrectly claims race-neutral strategies are ineffective at highly selective colleges
such as Harvard.................................................................................................................................... 5
III. Harvard’s Experts Cannot Refute Harvard’s Complete Failure To Fully Consider Numerous
Race-Neutral Strategies.............................................................................................................................. 5
A. Socioeconomic Preferences................................................................................................................ 6
B. Increasing Financial Aid ..................................................................................................................... 9
C. Eliminating Preferences for Non-Minorities ................................................................................. 10
D. Utilizing Geographic Diversity ........................................................................................................ 13
E. Increasing Recruitment...................................................................................................................... 15
F. Increasing Community College Transfers....................................................................................... 17
G. Ending Early Admissions ................................................................................................................. 18
IV. Simulations of Harvard’s Data Demonstrate That Race-Neutral Alternatives Exist. .................... 20
A. Card incorrectly concludes that Arcidiacono Simulation 4 and Card’s Simulation 4x are
not viable race-neutral alternatives. ................................................................................................. 21
1. Arcidiacono Simulation 4 and Card Simulation 4x both produce the educational benefits
of racial, socioeconomic, and geographic diversity.................................................................... 24
2. Arcidiacono Simulation 4 and Card Simulation 4x do not harm academic preparation. ..... 26
3. Arcidiacono Simulation 4 and Card Simulation 4x are viable race-neutral alternatives

despite their minimal effect on expected majors and athletes.................................................. 28
B. A new simulation from Card’s model (Simulation 6) demonstrates viable race-neutral

alternatives. ......................................................................................................................................... 29
1. My new model improves upon Card’s simulations.................................................................... 29
2. Results of Simulation 6 demonstrate the viability of another race-neutral alternative. ........ 33
3. Through the inclusion of additional socioeconomic factors and better recruitment of

low-income students, the simulation could produce even greater racial, ethnic and
socioeconomic diversity. ................................................................................................................ 34
ii

V. Conclusion................................................................................................................................................. 36
VI. Appendix A ............................................................................................................................................... 38

iii

I. Executive Summary
In my opening expert report, I outlined the several ways in which Harvard could use
race-neutral alternatives to achieve the educational benefits of racial, ethnic, and
socioeconomic diversity.1 In response, Harvard’s proffered expert witnesses, Professor David
Card and President Ruth Simmons, submitted reports suggesting, among other things, that
race-neutral strategies would be unworkable.2 In this rebuttal report, I refute their assertions.
My opening report reached three conclusions: (1) experience and academic research
show that selective colleges and universities can maintain or increase diversity through race-
neutral strategies without sacrificing academic quality; (2) Harvard failed to fully consider
numerous race-neutral strategies, including increasing socioeconomic preferences, increasing
financial aid, eliminating preferences that favor non-minorities, utilizing geographic diversity,
increasing recruitment, increasing community college transfers, and ending early admissions;
and (3) simulations of Harvard’s data demonstrate that race-neutral alternatives exist.
Highlights of my rebuttal report are as follows:
• Harvard’s experts failed to rebut the substantial body of research and experience
finding that a variety of viable race-neutral alternatives are available to highly
selective institutions such as Harvard.
• Harvard’s witnesses do not—and cannot—dispute that Harvard failed to take any

meaningful steps to comply with its obligation to seriously consider race-neutral
alternatives before the advent of this lawsuit.
• Harvard’s witnesses failed to discredit a powerful menu of race-neutral

alternatives. These strategies, when used in tandem with one another, can produce
the educational benefits of diversity without resorting to racial preferences.

1Report of Richard D. Kahlenberg, Students for Fair Admissions, Inc. v. President and Fellows of Harvard
College, October 16, 2017.
2 Report of David Card, Students for Fair Admissions, Inc. v. President and Fellows of Harvard College,
December 15, 2017; and Report of Ruth Simmons, Students for Fair Admissions, Inc. v. President and Fellows
of Harvard College, December 15, 2017.
1

• Simulations of race-neutral alternatives using actual Harvard applicant data show

that Harvard has at its disposal multiple race-neutral pathways that would sustain
and even boost diversity while maintaining Harvard’s excellence along many
dimensions.
II. Harvard’s Witnesses Fail To Refute the Substantial Body of Evidence Showing
That Selective Colleges and Universities Can Maintain or Increase Diversity
Through Race-Neutral Strategies Without Sacrificing Academic Quality.
In my opening report, I discussed extensive evidence from academic research and the
experience of selective colleges that race-neutral alternatives to racial preferences can produce
the educational benefits of diversity.3 In response, Card claims the academic research does not
support the viability of race-neutral strategies and that the most selective colleges—those most
closely resembling Harvard—have not been able to sustain diversity. Card’s analysis is wrong
on both counts.4
A. Card incorrectly concludes that most research fails to find viable race-
neutral strategies.
To begin, Card cites studies by Thomas Kane and Sean Reardon finding that using
income instead of race in admissions will not produce the same level of racial diversity.5 But
these studies are of little value here because they measure only the use of income and not, as
I propose, a broad set of socioeconomic variables, such as neighborhoods or family wealth,
which better capture the effects of racial discrimination.6
Next, Card cites a variety of studies by researchers finding that racial preferences are
more “efficient” at producing a given level of racial diversity than race-neutral strategies.7
These studies make the pedestrian point that if a school wants to obtain a certain racial

3 Kahlenberg Report, pp. 5-10.
4 In setting forth my opinion in this rebuttal report, I have not relied on any materials other than those identified
herein or in the original report.
5 Card Report, p. 97.

7 Card Report, pp. 98-101.
2

admission level, then the most direct way to do so is through the use of racial preferences. But
administrative convenience is not the goal of this exercise. We examine race-neutral
alternatives in order to avoid using racial classifications, because “[d]istinctions between citizens
solely because of their ancestry are by their very nature odious to a free people, and therefore
are contrary to our traditions and hence constitutionally suspect.”8 A school thus must
examine whether a nonracial approach could promote a substantial interest “about as well”
and at “tolerable administrative expense.”9 Card’s studies also ignore the obvious point that a
plan that produces additional socioeconomic diversity, alongside racial diversity, should not
be characterized as “inefficient.”10
Finally, Card claims that a number of the studies I cite actually undermine my position
about the viability of race-neutral alternatives.11 Card quotes Gaertner to suggest there are
academic costs associated with class-based affirmative action because the college GPAs and
graduation rates of class-based admits lag behind other students.12 But Card fails to mention
that Gaertner concludes that low-income students do about as well academically as
underrepresented minority students admitted through race-based affirmative action
programs.13 And Gaertner argues that academic support for low-income students should be
the proper response, not ceasing to admit such students.14

8 Fisher v. Univ. of Texas, 133 S. Ct. 2411, 2418 (2013) (citations and quotations omitted).
9 Fisher, 133 S. Ct. at 2420 (quotation omitted).
10 See infra Section IV.
11 Kahlenberg Report, pp. 11-13 (discussing studies by Matthew Gaertner, Anthony Carnevale, and Sigal Alon).
12Card Report, p. 101 n.160.

13Matthew N. Gaernter, “Advancing College Access with Class-Based Affirmative Action: The Colorado Case,”
in Richard D. Kahlenberg (ed), The Future of Affirmative Action after Fisher v. University of Texas (Century
Foundation/Lumina Foundation, 2014), p. 184.
14 Gaertner, “Advancing College Access,” pp. 184-185.

3

Card also quotes a 2004 study by Anthony Carnevale and Stephen Rose concluding
that “[w]hile socioeconomic preferences help produce some racial diversity, a credible
procedure that can reproduce the level of racial diversity that exists in society today without
purposefully singling out African Americans and Hispanics at some point in the selection
process has yet to be found.”15 But Card fails to mention that ten years later, these same
professors found two alternatives that produced greater racial diversity and higher mean SAT
scores than the current system of racial preferences.16
Next, Card notes that simulations by Sigal Alon “do not consistently show that
African-American and Hispanic representation would meet or exceed the levels achieved by
considering race,” and that one of Alon’s simulations results in “a decline in academic
selectivity.”17 These statements are true, but largely unhelpful. The U.S. Supreme Court has
never suggested that every race-neutral alternative must be viable, but rather that universities
cannot employ race preferences unless “no workable race-neutral alternatives would produce
the educational benefits of diversity.”18 (emphasis supplied). The point is that race-neutral
alternatives have been found to be successful. Indeed, even Alon herself has found a workable
race-neutral alternative, which I cited in my opening report.19

16 Kahlenberg Report, pp. 11-12 (describing Carnevale simulations to (a) provide a socioeconomic preference in
admissions and (b) admit the top 10% of high school test takers).
18 Fisher, 133 S. Ct. at 2420.
19Kahlenberg Report, p. 13 (describing Alon simulation which effectively eliminates legacy, athletic, and racial
preferences and provides a socioeconomic preference)

4

B. Card incorrectly claims race-neutral strategies are ineffective at highly

selective colleges such as Harvard.
In his report, Card acknowledges that the majority of flagship universities in a 2014
Century Foundation study were able to maintain or exceed black and Hispanic enrollment
with race-neutral strategies, but he discounts this finding by noting that the most highly
selective public colleges in the study—“UC-Berkeley, Michigan and UCLA, the schools most
similar to Harvard”—had the most difficulty maintaining racial diversity.20 As I note in my
opening report, however, this study analyzed what these selective colleges did to increase racial
diversity, not what they could have done. As I explained, each of these universities could have
done more to promote diversity by, for example, using a wealth variable in admissions.21
In addition, UC Berkeley, UCLA, and Michigan faced a special disadvantage in
recruiting minority students because they were prohibited by state law from using racial
preferences, but their competitors were not. These three institutions have a national pool of
applicants and compete against other colleges and universities that are not subject to similar
prohibitions. If all schools were playing by the same rules, then the outcomes at UC Berkeley,
UCLA, and Michigan would have been very different.
III. Harvard’s Experts Cannot Refute Harvard’s Complete Failure To Fully

Consider Numerous Race-Neutral Strategies.
In my opening report, I noted that despite the clear instructions of the U.S. Supreme
Court that universities must demonstrate that “no workable alternatives would produce the
educational benefits of diversity,” Harvard conducted no such investigation until the advent
of this litigation.22 No formal analysis was conducted of the effects of moving to a race-blind

22 Fisher, 133 S. Ct. at 2420.
5

system or of the feasibility of using alternatives, such as socioeconomic status. I suggested that
the sum total of Harvard’s investigation appears to have been the creation of a disbanded
committee led by Dean James Ryan and the establishment of a three-member committee that
as of August 3, 2017, had met only once.23
Tellingly, Card and Simmons do nothing whatsoever in their reports to address this
stunning failure to take the elementary steps required by the law. In point of fact, there were
numerous alternatives available, which Harvard could have adopted. I discuss these options
below.
A. Socioeconomic Preferences
My opening report outlined extensive evidence showing that Harvard could increase
racial and ethnic diversity by increasing socioeconomic preferences. I provided evidence that
(1) socioeconomic factors (especially wealth) are highly correlated with race; (2) Harvard’s
socioeconomic diversity is deeply lacking; (3) Harvard does not give its admissions officers
access to critical income and wealth data that could be used to implement a race-neutral
alternative; and (4) Harvard could increase the weight it provides to socioeconomic status
compared to race. (My report also included a simulation of socioeconomic preferences
conducted by Arcidiacono—to which Card responds—which I discuss separately in part IV
of this report.)
Card makes no serious effort to dispute my first three points: that socioeconomic
status (especially wealth) is highly correlated with race; that Harvard is lacking in
socioeconomic diversity; or that Harvard admissions officers are denied access to critical data
through a system of “need-blind” admissions. Instead, Card focuses on the fourth point: the

23 Kahlenberg Report, p. 16.
6

relative weight provided to race versus “context variables,” which includes socioeconomic
status. Card claims that Harvard already gives significant consideration to “contextual factors”
(including socioeconomic status) that are larger in magnitude than considerations of race and
ethnicity.24 As explain below, that is not true.
In my report, I cite evidence from Arcidiacono’s regression analysis showing that the
coefficient signifying the preference Harvard provides for African-American students (2.569)
is substantially larger than that provided for Disadvantaged students (1.083) or First-
Generation students (0.023).25 Importantly, Card does not conduct a similar analysis
specifically comparing the impact of these variables. Instead, Card suggests race plays a small
role and that “contextual factors” (which include socioeconomic status) matter much more.
Specifically, Card claims that “contextual factors . . . such as College Board high school and
neighborhood variables, parental occupation, and intended career—explain more about
admissions decisions than race.”26 In Card’s analysis, the McFadden Pseudo R-Squared for
Context Variables is 0.13, the Detailed High School and Neighborhood Variables (a subset of
the Context Variables) is 0.06, and the impact of Race is a mere 0.002.27 Card concludes that
“race alone explains almost nothing about admissions outcomes.”28
In his rebuttal expert report, Arcidiacono explains why his model is superior to Card’s
model and thus why his results are more reliable. But even accepting Card’s numbers as true,
Card’s conclusions are problematic for several reasons.29

24 Card Report, p. 82-83.
27 Card Report, p. 83, Ex. 27.

29 See Peter Arcidiacono Rebuttal Report, January 29, 2018, sections 3, 7-9.
7

First, Card’s claim that “race alone explains almost nothing about admissions
outcomes” is difficult to square with his other conclusion that African-American and Hispanic
admissions would plummet without racial preferences. Card concludes: “if Harvard did not
consider race in the admissions process . . . the share of African-American students in the
admitted class would drop from 14% to 6%. The fraction of Hispanic or Other students would
fall from 14% to 9%.”30 And “[t]he fraction of admitted students who are Asian-American
would rise from 24% to 27%.”31 His simulation thus demonstrates that race does have a
substantial role in admissions, and it calls into question his earlier claim that “race alone
explains almost nothing about admissions outcomes.”32
Second, Card’s analysis that contextual factors matter much more than race in
admissions does not square with the regression analysis performed by Harvard’s own Office
of Institutional Research, which found that the coefficient for African Americans (2.37) was
more than twice as large as the coefficient for Income Less than $60,000 (0.98).33
Third, Card’s findings are at odds with the findings of several studies of elite colleges,
which consistently conclude that race plays a much larger role in college admissions than
socioeconomic status.34 Card does not address this dissonance.

31 Card Report, p. 103 (emphasis added).
34 Kahlenberg Report, pp. 28-29 (citing four studies of supporters of racial preferences).

8

B. Increasing Financial Aid
In my opening report, I explained that Harvard could attract more racial and
socioeconomic diversity by increasing its commitment to financial aid. I also showed that
Harvard—which has a $37.1 billion endowment—likely could afford such a commitment.35
Card does not contest Harvard’s ability to increase financial aid. Indeed, in his analysis
of one of Arcidiacono’s simulations of socioeconomic preferences, he estimated that financial
aid would have to increase by $62 million per year (above Harvard’s current $170 million
commitment to financial aid).36 Professor Card himself provides data to suggest this additional
$62 million commitment would represent a 26.7% increase, far smaller than the 75% increase
in aid Harvard has absorbed in the years between 2007 and 2017.37
Instead, Card suggests that financial aid increases, by themselves, are unlikely to be
effective in increasing the applications of African-American and Latino students. Analyzing
historical application data, Card claims that “[s]hare[s] of African-American, Hispanic or Other
applicants rose, then plateaued, as Harvard expanded financial aid.”38 The initial increases in
financial aid for the classes of 2008, 2010, and 2012 did result in increases in the
underrepresented minority share of all applicants, Card says, but the effect appears to have
been tapped out. Citing the change in financial aid rules for the class of 2016, Card says:
“Importantly, the most recent expansion of financial aid did not result in an increase in the
share of AHO [African American, Hispanic, or Other] applicants.”39

36 Card Report, p. 153 & n.220.
37Card Report, p. 153 n.220. The additional $62 million commitment projected would also be smaller in absolute
terms than Harvard’s earlier multiyear increase of $73.4 million.
9

Card’s analysis has two major weaknesses. First, my opening report never suggested
that increasing financial aid is a stand-alone strategy that would automatically increase racial
diversity. Increasing financial aid succeeds when done in combination with other strategies—
including the use of socioeconomic preferences, more aggressive recruiting efforts, and the
like.
Second, the historical data presented by Card actually suggest the opposite of what he
contends. Boosts in financial aid did have a positive impact on the share of applicants who are
underrepresented minorities in Harvard’s classes of 2008, 2010, and 2012.
It is true that applications did not increase after the class of 2016 change, which Card
characterizes as “the most recent expansion of financial aid.”40 But for the class of 2016,
Harvard’s new policy had the effect of reducing the amount of money spent on financial aid.
For the class of 2016, Harvard coupled a small increase in the income cutoff for students
requiring no parental contribution (from $60,000 to $65,000—less than 10%) with what a
Harvard financial aid officer described as a “scaled back” commitment to providing aid for
families making between $150,000 and $180,000. The overall savings for Harvard from these
two changes was projected to be $46 million for the freshman entering the class of 2022.41
C. Eliminating Preferences for Non-Minorities
In my opening report, I discussed extensive evidence that Harvard currently provides
considerable preferences in admissions to several categories of students who are
disproportionately wealthy and white: the children of alumni, of donors, and of faculty and
staff. Many of these students are admitted through Harvard’s special Z-list of applicants—


10

where Harvard admits a student (most often the child of an alumni) on the condition that the
student enroll the following year (a practice Card euphemistically calls “deferred admission”).42
Eliminating these various preferences and practices would increase racial, ethnic, and
socioeconomic diversity.
Card and Simmons do not dispute that preferences are provided to students who fall
into these various categories. Nor do they dispute that being the child of an alumni, a donor,
or faculty or staff has nothing to do with the individual merit of applicants but rather the
actions of their parents. Instead, Card and Simmons make two broad claims: that eliminating
these preferences would (1) not increase racial diversity, and (2) harm Harvard’s ability to
provide an excellent education. Both claims are flawed.
With respect to Card, he does not simulate the racial impact of eliminating the specific
practices I outlined in my report—preferences for the children of alumni, donors, faculty and
staff, and those admitted through the Z-list. Instead, he presents results for eliminating “the
consideration of race, lineage, athletic-recruit status, whether an applicant’s parents are
Harvard faculty and staff, and the Dean’s and Director’s interest lists.”43 He finds that under
these scenarios the share of African Americans would drop from 14% to 5%, and the share
of Hispanic and other from 14% to 9%.44
Card’s analysis is problematic in a couple of respects.
First, Card includes in the composite simulation the elimination of athletic preferences,
which is an option I specifically rejected.45 Removing athletic preferences is sometimes

42 See Kahlenberg Report, pp. 34-36; Card Report, p. 104.
43 Card Report, p. 105, Exhibit 35.

11

perceived as radical, so it is peculiar that Card insisted on eliminating the preference in his
model.46 Second, the elimination of preferences that tend to favor wealthy and white students
was not meant to be a stand-alone race-neutral alternative; ending those preferences would
have the most power in connection with other race-neutral alternatives (such as
socioeconomic preferences and/or geographic approaches), as Card’s subsequent simulations
acknowledge.
In Simmons’ testimony, she claims that ending legacy preferences would entail
“substantial costs” for Harvard, and that there are “strong reasons” to employ preferences for
the children of faculty as a way of retaining talent. She said she makes these statements “[b]ased
on my experience.”47 Tellingly, President Simmons cites not a single study or empirical analysis
of either statement. Nor does she seek to rebut or in any way discredit the 2010 study I
included in my opening report that examined legacy preferences at 100 universities and found
“no evidence that legacy preference policies themselves exert an influence on giving
behavior.”48
Simmons also does not deny that excellent institutions such as Oxford, Cambridge,
UC Berkeley, and UCLA admit exceptional students and provide superb educations without
using legacy preferences.49
Tellingly, with respect to preferences for the children of donors, Simmons provides
no defense whatsoever.

46 Harvard’s own expert, President Simmons, argues, “Based on my many decades of experience in higher
education, it is also clear to me that athletics plays an important role on college campuses in the United States.
Athletic competition is a deeply engrained part of the history and traditions at many our nation’s finest
institutions of higher education, including Harvard.” See Simmons Report, p. 22.
47 Simmons Report, pp. 20-22.

12

Finally, Simmons cites no study to suggest that giving the children of faculty a
preference makes a meaningful difference in strengthening the education universities can
provide or that giving the children of professors an advantage in the admissions process is
critical for retention. Nor am I aware of any. Indeed, it strains credulity to assert that an
individual would turn down the opportunity to teach at Harvard without the promise of
admission preferences for his or her children.
The bottom line is that Harvard employs extensive preferences for some of society’s
most privileged children—the offspring of alumni, donors, and faculty—and those advantages
disproportionately harm low-income and underrepresented minority students.50 The attempts
of Harvard’s experts to defend these practices fall short in all respects.
D. Utilizing Geographic Diversity
In my opening report, I identified a number of universities that employ place-based or
geographic approaches to admissions.51 The University of Texas and the University of Florida
have been particularly successful in creating high-quality and racially and socioeconomically
diverse student populations by admitting top students within each high school in the state.
Because Harvard has a national pool of applicants and does not draw most of its students
from a single state, I discussed Harvard professor Danielle Allen’s suggestion of admitting top
students by Zip Code. In my report I provided a variation on this approach: taking top
students from each of several “neighborhood clusters” identified by the College Board.52


13

Card dismisses this idea as impractical for Harvard.53 Because there are many types of
excellence, he says, it is impossible to identify the “best” student in various locations.
Moreover, he claims, given Harvard’s size (fewer than 1,700 students in each class) it is
impractical to literally take the top student from each of every one of the nation’s 41,000 high
schools or the more than 33,000 Zip Codes (or even the 7,500 high schools and 4,000 cities
and towns represented in Harvard’s applicant pool for the class of 2019).54
My place-based approach, however, is far less radical than Card makes it out to be.
While it is always difficult to discern the “best” students, Harvard nevertheless every year
assembles a class with students it considers excellent in many regards. Moreover, Harvard has
long committed itself to creating a class that has geographic diversity, which, if taken seriously,
requires identifying excellence in its many forms with consideration of place as a factor.55
The race-neutral strategy I outline simply holds Harvard to its stated commitment to
geographic diversity in a more rigorous fashion that it currently does.56 Unlike the Texas top
10% plan, which bases admissions on class rank via high school GPA, Harvard could continue
to identify excellent students holistically as it currently does (i.e., considering race-neutral

53Card Report pp. 128-129. Card also suggest it would be unworkable based on simulations. Card Report, pp.
130-139. For example, Card models a version of Arcidiacono’s Simulation 4 by providing a socioeconomic
preference within neighborhood clusters. Card Report, p. 135, Exhibit 51. But Card’s results do not call into
question Arcidiacono’s results because Card eliminates consideration of test scores as well as athlete preferences,
and therefore departs from Arcidiacono’s simulation in meaningful ways. Card Report, p. 134.
55 See, e.g., Regents v. Univ. of Calif. v. Bakke, 438 U.S. 265, 316, 379 (1978) (quoting the “Harvard plan” in
which “the race of an applicant may tip the balance in his favor just as geographic origin or a life spent on a farm
may tip the balance in other candidates’ cases. A farm boy from Idaho can bring something to Harvard College
that a Bostonian cannot offer.”); Simmons Report, Appendix, HARV00008052, Report of the Committee to
Study the Importance of Student Body Diversity (chaired by Rakesh Khurana) (noting the importance of
“geographic” diversity).
56 Kahlenberg Report, p. 36 (Noting that Harvard currently does a relatively poor job of seeking geographic
diversity. Some 37% of Americans and 55% of African Americans live in the American South, yet only 18.8% of
the class of 2021 hails from the South.)

14

criteria like grades, test scores, extracurricular activities, athletics, etc.). Although Harvard
could not literally take an equal number of students from each and every high school or Zip
Code, it could easily seek excellence and socio-geographic diversity by enrolling top students
from all of the College Board’s 33 “Educational Neighborhood Clusters,” as we model, or
some variation of Harvard’s choosing.57
E. Increasing Recruitment
In my opening report, I noted that Harvard could do a much better job of recruiting
economically disadvantaged applicants, many of whom are underrepresented minorities.58
Although 68% of adults in the United States ages 45-54 lack a college degree, only 12.5% of
Harvard applicants for the classes of 2007-2011 had parents without a college degree. For the
class of 2009, for example, nearly half of very high-achieving, high-income students applied to
Harvard, compared with less than a quarter of very high-achieving, low-income students.59
Card, by contrast, lauds Harvard’s current recruitment efforts. According to Card,
“Harvard already well understands the need to engage in outreach, and already engages in
extensive efforts on this front.”60 Citing a number of such programs, Card claims it is
“unlikely” that Harvard could double the number of disadvantaged applicants. He further
suggests it would be especially hard to recruit new disadvantaged students who “would be as
qualified as current applicants.”61
Card’s claim is unsupported for multiple reasons.

57 This is precisely the model we simulated in the original report. See Kahlenberg Report, pp. 48-50. Alternatively,
Harvard could create its own buckets of Zip Codes and seek to admit top students from each of the buckets.
59 Kahlenberg Report, pp, 39-40.


15

First, Card’s report itself confirms that Harvard—the nation’s oldest and wealthiest
university—could do far more to attract applicants. According to Card, for the class of 2019,
Harvard received applications from only 7,561 of the nation’s 41,368 high schools.62 In other
words, 82% of American high schools have not a single applicant to Harvard, one of the world’s
best known colleges.
Second, doubling the applicants to Harvard from disadvantaged students would be a
modest accomplishment given the enormous disparity Harvard currently faces in its applicant
pool. Doubling the number of applicants from first generation students (now 12.5%) would
still leave first generation applicants grossly underutilized in a country where 68% of adults
ages 45-54 lack a college degree.
Third, on the question of whether Harvard could attract more highly qualified
disadvantaged applicants, Card does not dispute the evidence from Stanford Professor
Caroline Hoxby and Harvard professor Christopher Avery that “there is a pool of talented
low-income students who do not apply to selective institutions.”63 Hoxby and Avery identify
35,000 high-ability low-income students, of which only one-third apply to a selective college.
Of all low-income high-achieving students, roughly 2,000 are African American and 2,700 are
Hispanic.64 More recently, research by Anthony Carnevale and Martin Van Der Werf of
Georgetown University identified 86,000 Pell Grant recipients who have test scores
comparable to those of students at selective colleges but who do not now attend such

63 Card Report, p. 122 n.198.

16

institutions. These high-achieving, low-income students include 5,160 who are Hispanic and
2,580 who are African American.65
F. Increasing Community College Transfers.
In my opening report, I demonstrated that Harvard could increase racial, ethnic, and
socioeconomic diversity by increasing transfers from community colleges, institutions that are
far more likely to have underrepresented minority and low-income students than Harvard.
This is an approach employed by a number of highly selective private and public institutions
to promote diversity.66
Card rejects this approach for two reasons: (1) this policy “is not likely to be effective”
because current transfer students are less diverse than regular applicants; and (2) allowing more
transfers “would be a dramatic change” for Harvard because so few students drop out of
Harvard that the only way to make space would be to reduce the size of the freshman class.67
Card’s assertions are problematic on both fronts.
First, the racial makeup of current transfers to Harvard is not particularly relevant. To
begin with, the sample size is very small, due to Harvard’s current policy limiting transfers.
Moreover, almost all were transfers from four-year colleges. For the classes of 2014-2019, only
two community college students transferred to Harvard.68 Card does not dispute the national
data showing that community colleges are far more likely to have underrepresented minority
and low-income students. Second, increasing community college transfers would not

65Anthony P. Carnevale & Martin Van Der Werf, “The 20% Solution: Selective Colleges Can Afford to Admit
More Pell Grant Recipients” (Georgetown Univ. Center on Education and the Workforce, 2017), pp. 9 and 12,
Figures 4 and 5.

17

necessarily require smaller freshman classes if Harvard were willing to modestly increase the
size of its junior and senior classes. For example, Amherst College, a highly competitive private
college with an undergraduate enrollment of 1790, has increased the number of community
college students transfers from 0 or 1 per year prior to 2006 to 12-15 per year.69 Like Harvard,
Amherst has a very high retention rate (96% in 2016-2017).70 But to accommodate the change,
Amherst did not reduce the size of its freshman class; indeed, the freshman class has expanded
since 2006.71 Finally, my contention is not that community college transfers alone is the
answer; it is that increasing the number of community college students at Harvard is one piece
of a larger solution to moving away from a system in which a student’s race is a factor in
whether he or she is admitted to college.
G. Ending Early Admissions
In my opening report, I concluded that Harvard could increase its racial and
socioeconomic diversity by dropping its early admissions program, which disproportionately
benefits wealthy and white students.72 Indeed, Harvard eliminated early admissions (before
reinstating it later) for this very reason, concluding that “[a]n early admission program that is
less accessible to students from modest economic backgrounds operates at cross-purposes
with our goal of finding and admitting the most talented students from across the economic

69 Jennifer Glynn, “Opening Doors: How Selective Colleges and Universities are Expanding Access for High-
Achieving, Low-Income students,” (Jack Kent Cooke Foundation, April 2017), p. 37.
70 Amherst College, Common Data Set 2017-2018, p. 4,
https://www.amherst.edu/system/files/B%2520Enrollment%2520and%2520Persistence_2.pdf.
71 Scott Jaschik, “Size Matters: From Amherst to Pomona, liberal arts colleges are increasing enrollments—and
trying to keep a small college environment,” Inside Higher Ed, February 24, 2006 (regarding Amherst’s plan to
expand its freshman class by 15-25 students per year), https://www.insidehighered.com/news/2006/
02/24/libarts.

18

spectrum.”73 Both Card and Simmons, however, defend Harvard’s current use of early
admissions.
Card does not dispute the evidence showing that those applying through early
admission are more likely to be accepted and that such applicants are disproportionately
wealthy and white.74 Instead, Card seeks to question the efficacy of eliminating early
admissions by examining application and admission shares for underrepresented minority
students during the period of time when Harvard dropped and then subsequently reinstated
early admissions. He suggests this historical pattern represents a “natural experiment” to test
the effect of early admissions.75 He concludes that reinstating early admissions did not decrease
the number of underrepresented minorities applying to or admitted by Harvard.76
But Card’s method of analysis—drawing causal inferences from the changes in early
admissions policies (its abolition for the class of 2012 and its reinstatement for the class of
2016)—is problematic. Early admissions were not the only changes during this time period
that might have affected applications and admissions. As Card himself notes, changes in
financial aid rules were also implemented during these years.77 Numerous other factors could
have come into play, including demographic changes in the population of high school seniors,
fluctuations in the state of the economy that affect whether students will apply, changes in
Harvard’s recruitment efforts and those of its competitors, and changes in the weight Harvard
or others may have applied to various preferences. In short, it is exceedingly difficult to isolate
the independent effect of the change in early admissions policies.

73 Kahlenberg Report, p. 43 (quoting Dean Fitzsimmons).

19

Given the difficulty in drawing conclusions based on the historical patterns, it would
be preferable to simulate the effect of turning off the early admissions preference on
admissions shares for underrepresented minorities. Card, however, declines to do so because
he says Harvard values early admissions.78 By contrast, in modeling presented below,
Arcidiacono turns early admissions off and demonstrates a positive racial dividend.
Similarly, Simmons claims that eliminating early action “would have substantial costs”
and that she rejected such an approach when she was President of Brown University for fear
of “losing out on some of our most talented students” to competitor institutions.79 But this
argument is also weak. Simmons cites no studies to support her claim and no anecdotal
evidence or reasoning to show why her belief is justified. Moreover, her focus on losing
talented students to other colleges ignores the principle issue: that many low-income and
minority students are at a disadvantage because they lack counselors telling them to apply early.
IV. Simulations of Harvard’s Data Demonstrate That Race-Neutral Alternatives

Exist.
In my opening report, I discussed findings from a number of race-neutral simulations
that Professor Arcidiacono conducted at my request. In his report, Professor Card conducted
a number of additional simulations predicting the effect of various race-neutral alternatives.
As Arcidiacono explains in his rebuttal report, there are a number of problems with how Card
constructed his dataset. Because it is Harvard’s burden to show that there is not a single race-
neutral alternative that can produce the educational benefits of diversity, I need not discuss
every simulation Card creates.80

78 Card Report, p. 150 n.219.
79 Simmons Report, p. 22.
80I thus do not dispute that some of the simulations Card produced are unsatisfactory. See, e.g., Card Report, p.
108, Exhibit 36 (for 1x low-SES boost); Card Report, p. 133, Exhibit 50 (taking top students from every low-
income high school).
20

Instead, in this section, I show that (1) Card incorrectly concludes that Arcidiacono
Simulation 4 and Card’s Simulation 4x are not viable race-neutral alternatives; and (2) a new
simulation from Card’s model (Simulation 6) demonstrates viable race-neutral alternatives.
Broadly speaking, the simulations that Card and Arcidiacono separately ran can be
placed into one of three buckets: (1) simulations that did not produce satisfactory results,
either because overall diversity suffered or academic selectiveness was seriously impaired; (2)
simulations that did produce satisfactory results but were nevertheless rejected by Professor
Card because he used faulty criteria for evaluating the outcomes; or (3) new simulations
produced for this report that produce satisfactory results.
In considering these various simulations, it is important to remember the heavy burden
Card faces: if a single race-neutral alternative can produce adequate results, race cannot be
employed by Harvard.81 Card cannot carry that burden here.
A. Card incorrectly concludes that Arcidiacono Simulation 4 and Card’s

Simulation 4x are not viable race-neutral alternatives.
Contrary to Card’s report, some of the simulations do produce satisfactory results. I
will highlight two in particular, one from Arcidiacono and one from Card. Elsewhere,
Arcidiacono explains why his model is superior to Card’s.82 But by highlighting results from
each of the two models, my conclusion here does not depend upon which model is ultimately
deemed preferable.
In Arcidiacono’s Simulation 4, he ranks students based on their Harvard ratings; turns
off race and other preferences; provides a new preference to socioeconomically disadvantaged

81Fisher, 133 S. Ct. at 2420 (examining whether “no workable race-neutral alternatives would produce the
educational benefits of diversity”).
82 Arcidiacono Rebuttal Report, section 3, 7-9.

21

students; and admits top students from each of 33 College Board Neighborhood Clusters.83
Looking at the admitted class of 2019, the percentage of underrepresented minority students
basically holds steady, with Hispanic students rising from 12.9% to 13.5% of the class and
African-American students declining from 13.6% to 10.1%. Socioeconomic diversity
increases, as the economically disadvantaged population rises from 17.4% to 54.3%. The
academic index remains fairly stable, changing from 227.8 to 225.9—well above the average
academic index for African-American students and athletes, all of whom, Harvard’s president
testified, are able to “thrive and succeed” at Harvard.84
In Card’s model with a socioeconomic preference 4x relative to the baseline, he follows
Arcidiacono’s model in most respects. But instead of admitting students in equal shares by
Neighborhood Cluster, he provides a socioeconomic preference that includes neighborhood
characteristics. He applies this weight four times.85 Under this model, underrepresented
minority admitted shares basically hold steady at 27% for the class of 2019 (10% African

83 More specifically, Arcidiacono uses Harvard’s four-part rating system (including academics, extracurricular
activities, athletics, and personal rating), and turns off the preferences for race, athlete, legacy, early decision,
faculty and staff children, the Dean/Director list, fee waiver, first generation, and financial aid recipients. He
then turns the preference for athlete back on, and provides a new preference (half the size of the athletic
preference) for students tagged as economically disadvantaged. Then Arcidiacono admits top students in each of
33 College Board Neighborhood Clusters.
Card makes an error in describing Simulation 4. He says the simulation “repeats Simulation 3” yet allows athletes
to retain preferences, but that is incorrect. Card Report, p. 152. Simulation 3 involves no socioeconomic
preference and instead simulates an admission system involving the top students from each Neighborhood
Cluster. Simulation 4 involves a socioeconomic preference within each Neighborhood Cluster.
85 More specifically, Card starts with Harvard’s four-part rating system (including academics, extracurricular
activities, athletics and personal rating), and turns off the various preferences as Professor Arcidiacono does. And
he provides a socioeconomic preference for economically disadvantaged students. But here Card makes several
departures. First, he leaves the athlete preference off. Second, he abandons the system of admitting top students
by Neighborhood Cluster. Third, rather than providing a preference for students tagged disadvantaged, he
provides an equally weighted preference to students with each of the following four socioeconomic factors: 1)
tagged economically disadvantaged; 2) eligible for fee waiver; 3) first generation college; and 4) from
neighborhoods with a median income below $65,000. Card Report, pp. 105-106. The 4x preference is roughly
equivalent to the preference Professor Arcidiacono and I simulated, according to Card. See Card Report, p. 108-
109 & n.177.

22

American and 17% Hispanic and Other), very similar to the status quo’s 28% share of
underrepresented minorities (14% African American and 14% Hispanic and Other).86 The
share of disadvantaged students increases from 17.7% to 52.1%.87 The Academic Index sees
a small decline, from 228 to 225.88
Card claims that Arcidiacono’s Simulation #4 is unsatisfactory because, among other
things, it results in a small decline in African-American student representation; because legacy
children would decline as a fraction of the student body; because the percentage of students
expected to concentrate in biological sciences would rise; and because the increase in
socioeconomic diversity would require the expenditure of $62 million more in financial aid.
He concludes, “I find that Mr. Kahlenberg’s proposed race-neutral alternatives do a poor job
of generating racial diversity, while also coming at a cost in terms of other class characteristics
I understand Harvard values.”89
Likewise, Card rejects his own 4x weight for SES as unsatisfactory. Even though it
would replicate the total population of underrepresented minorities, as he acknowledges, he
alleges that “numerous measures of excellence in Harvard’s class would drop substantially.”90
He cites, among other things, declines in the fraction of students rated academically excellent,
the proportion who are children of alumni, the share who are athletes, and the fraction

87 Card Report, p. 113, Exhibit 39. Although a 52.1% “disadvantaged” population might seem large, Harvard’s
definition of disadvantaged encompasses more than two-thirds of American students. See Kahlenberg Report,
p. 49.

23

intending to concentrate in the humanities or social sciences. He also noted the amount
Harvard would have to spend on financial aid would increase by $59-$71 million.91
Professor Card’s rejection of these alternatives is fundamentally flawed because (1) it
is at odds with the way Harvard itself describes the educational benefits of diversity; (2) it is in
conflict with the way Harvard itself evaluates the importance of academic criteria; and (3) other
measures cited, such as a modest change in the expected majors of incoming students, are too
trivial to justify differential treatment by race.92
1. Arcidiacono Simulation 4 and Card Simulation 4x both produce

the educational benefits of racial, socioeconomic, and
geographic diversity.
First, in evaluating simulations of race-neutral alternatives, Card does not appear to
appreciate the meaning of the educational benefits of diversity, as outlined both by the U.S.
Supreme Court and by Harvard College. The Supreme Court has long recognized that the
educational benefits of diversity flow not only from racial diversity but from other factors,
such as socioeconomic diversity and geographic diversity.93 Harvard officials have also
recognized that socioeconomic and geographic diversity are critical to the education of
students.94 Indeed, Simmons’s expert report includes as an appendix the Report of the
Committee to Study the Importance of Student Body Diversity (chaired by Rakesh Khurana),
which declares that diversity has “[m]ultiple [d]imensions,” including socioeconomic and

91Card Report, pp. 110-112.
92Card also raises a fourth concern—that race-neutral alternatives would increase financial aid costs—but he
never claims that Harvard could not afford this additional expense. See discussion supra. As I noted in my
opening report, Harvard officials repeatedly testified that their financial aid budget was not capped. Kahlenberg
Report, p. 30.
93See, e.g., Grutter v. Bollinger, 539 U.S. 306, 324 (2003); Bakke, 438 U.S. at 316.
94See, e.g., Fitzsimmons deposition, pp. 421-424; McGrath deposition, p. 231; Faust deposition, p. 196; Khurana
deposition, pp. 66, 75; Smith deposition, p. 48; Bakke, 438 U.S. 316 (on “geographic” diversity); Simmons Report,
Appendix, HARV00008052, Report of the Committee to Study the Importance of Student Body Diversity
(chaired by Rakesh Khurana) (noting the importance of “geographic” diversity).

24

geographic. “Harvard’s students should be children of the ‘rich and poor,’ the ‘educated and
uneducated.’”95 The report also indicates: “As is true for other demographic characteristics
such as race, the life experiences of low-income students have been shaped by their
circumstances. They add healthy pluralism to the campus and, as part of the alchemy that
results from a diverse student body, benefit from and contribute to an enriched educational
experience of everyone.”96
Given this broad conception of diversity, it is jarring that Professor Card’s report does
not consider diversity as a whole (including its racial, socioeconomic, and geographic
components) in evaluating the costs and benefits of various race-neutral strategies. To the
contrary, he treats increases in socioeconomic diversity as a liability rather than a benefit—a
cost to Harvard College’s bottom line.97 As I outlined in my opening report, Harvard is grossly
lacking in socioeconomic diversity, with 23 times as many high-income students as low-income
students.98 Under the models, such as Card’s 4x socioeconomic boost, Harvard would see a
much-needed increase in the educational benefits of socioeconomic diversity. The proportion
of first generation college students, for example, would increase from 7.2% to 25.5%—a very
positive change which surely should be weighed against any small declines in racial diversity.99
Card also fails to highlight in his discussion major gains in geographic diversity that
his own data suggest would occur under his 4x socioeconomic preference plan. The

95 Simmons Report, Appendix, HARV00008063.
96 Simmons Report, Appendix, HARV00008064.
97 See, e.g., Card Report, p. 153 (Simulation 4 “would increase Harvard’s [financial aid] spending by about $62
million per year”); Card report, p. 112 (Card’s 4x socioeconomic model “would likely increase the financial need
of the accepted class” and “could necessitate an increase in Harvard’s financial spending by roughly $59-71
million per year.”).
99 Card Report, p. 113, Exhibit 39. At 25.5%, Harvard would still be underrepresented among first generation
students in a country where 68% of adults lack a college degree. See Kahlenberg Report, p. 22 n.75.

25

proportion of students in the Midwest, South, West, and rural America would all see increases,
while the greatly overrepresented Northeast would see a decline.100
Finally, throughout his report, Card seems to assume that the current level of racial
diversity Harvard has achieved is the minimum level required to achieve the educational
benefits of diversity. Card rejects as inadequate any race-neutral alternative that produces
anything less than the threshold of racial diversity achieved under the status quo’s application
of racial preferences. But this is at odds with Harvard President Drew Faust’s own testimony
that Harvard is not looking for any particular racial composition.101
2. Arcidiacono Simulation 4 and Card Simulation 4x do not harm

academic preparation.
Card’s concerns about changes in the academic preparedness of students under race-
neutral alternatives are also unwarranted. To begin, the changes in the academic profile of
students are very small under both Arcidiacono’s Simulation 4 and Card’s 4x socioeconomic
preference. Under Arcidiacono’s Simulation 4, Card reports that the mean SAT score for
admitted students would decline from 2239 to 2191 for the class of 2019.102 In 2014, when
applicants were taking the SAT, that drop represented just a single percentile point, from the
99th to 98th percentile.103 Meanwhile, average high school GPA actually increases slightly, from
77.0 to 77.1.104

100 Card Report, p. 112, Exhibit 38; Kahlenberg Report, p. 40 (on overrepresentation of New England students
at Harvard).
102Card Report, p. 193.

103Justin Berkman, “SAT Historical Percentiles for 2015, 2014, 2013, 2012, and 2011,” PrepScholar, March 11,
2017. Professor Card’s 4x socioeconomic preference also involves a small SAT drop, from the 99th to 98th
percentile. See Card Report, p. 111, Exhibit 38.
104 Card Report, p. 193

26

Card’s heavy focus on minor changes in academic preparation is at odds with
statements from Harvard administrators about the College’s values. They are also at odds with
Harvard’s other expert witness, President Simmons, who notes that “highly selective
institutions of higher education like Harvard rightly consider more than a student’s academic
achievement and academic potential in deciding whom to admit.”105 Harvard, she says, has
“thousands of applicants with similarly strong academic qualifications.”106 Indeed, Card’s
objections are in tension with his own statements in his report. In the context of racial
differences in entering grades and test scores, Card concludes that “Harvard’s admissions
process values many dimensions of excellence, not just prior academic achievement.”107
Moreover, there is a particular reason to be less concerned with changes in academic
preparation when admitting more students from economically disadvantaged backgrounds. As
Justice William O. Douglas once recognized, “[a] black applicant who pulled himself out of
the ghetto into a junior college may thereby demonstrative a level of motivation, perseverance,
and ability that would lead a fairminded admissions committee to conclude that he shows
more promise for law study than the son of a rich alumnus who achieved better grades at
Harvard. That applicant would be offered admissions not because he is black, but because as
an individual he has shown he has the potential, while the Harvard man may have taken less
advantage of the vastly superior opportunities offered him.”108 Such an applicant “may not
realize his full potential in the first year of law school or in the full three years, but in the long

105 Simmons Report, p. 14.
106 Simmons Report, p. 15. See also Kahlenberg Report, pp. 50-51.
108 DeFunis v. Odegaard, 416 U.S. 312, 331 (1974).

27

pull of a legal career, his achievements may far outstrip those of his classmates whose earlier
records appeared superior by conventional criteria.”109
Douglas’s contention is supported by empirical research conducted at Harvard.
Harvard Law Professor Lani Guinier has noted that a “Harvard study of graduates over three
decades found that students with low Scholastic Aptitude Test scores and blue-collar
backgrounds tended to be more successful, with success defined by income, community
involvement and professional satisfaction. This suggests that a student’s drive to succeed—
along with an opportunity to do so—may be a better indicator of future success than test
scores.”110
3. Arcidiacono Simulation 4 and Card Simulation 4x are viable

race-neutral alternatives despite their minimal effect on
expected majors and athletes.
Card raises additional concerns about race-neutral alternatives: that they may produce
more students whose expected major is in the biological sciences, or that they will result in the
admission of fewer athletes.111
These are, however, relatively minor concerns. The intended major indicated by a 17-
year-old applicant can change in college and almost always does. According to the National
Center for Education Statistics, 80% of college students end up changing their major.112 (It is
my understanding that Harvard refused to disclose to Students for Fair Admissions any data
regarding Harvard undergraduates’ decisions about changing their majors.) Likewise, it is odd

109 DeFunis, 416 U.S. at 331.
110 Lani Guinier, “The Real Bias in Higher Education,” New York Times, June 24, 1997.
National Center for Education Statistics, cited in Donna Rosato “A Surprising Way to Limit Student Debt:
112
Most students today take more than four years to earn a bachelor’s degree,” Consumer Reports,
November 17, 2016, https://www.consumerreports.org/student-debt/surprising-way-to-limit-student-debt/.

28

that Card complains about any decline in athletes when it was he who decided to depart from
the parameters of the simulations Arcidiacono and I conducted, which retained athletic
preferences.113
B. A new simulation from Card’s model (Simulation 6) demonstrates viable

race-neutral alternatives.
As noted above, considerations of geography are a tried and true approach in higher
education to obtaining diversity, so it is appropriate to model a place-based approach that
admits top students from different regions, using metrics such as College Board
Neighborhood Clusters. But even if one shares Card’s concerns about such a system,
additional alternatives are viable. For this rebuttal report, I asked Arcidiacono to conduct new
simulations that follow Card’s model of providing a preference for students in
socioeconomically disadvantaged neighborhoods (as opposed to top students from various
neighborhoods), as well as disadvantaged families. Below, I describe (1) several improvements
to Card’s simulations; (2) the results of the new simulations; and (3) how the inclusion of
additional socioeconomic factors and better recruitment could produce even greater racial,
ethnic, and socioeconomic diversity.
1. My new model improves upon Card’s simulations.
To improve upon Card’s model, I asked Arcidiacono to make five changes to Card’s
analysis, using Card’s 4x socioeconomic status boost. Note that although Arcidiacono
criticizes multiple aspects of Card’s approach, I based these simulations upon Card’s models
in order to (1) fairly compare the improved simulations to Card’s prior ones; and (2)
demonstrate that race-neutral alternatives are available to Harvard even under the conception
of the admissions process that it is advancing in this litigation.

29

First, in the conception of socioeconomic disadvantage, Arcidiacono adds to Card’s
four-part definition of socioeconomic disadvantage a fifth variable: attending a high school
whose student body is, as a whole, socioeconomically disadvantaged.114 Attending a
disadvantaged high school constitutes an additional obstacle for students, so those who have
overcome that hurdle deserve special consideration.115 Moreover, leaving out low-
socioeconomic status high school as a factor unfairly penalizes African-American and
Hispanic students, on average, because they are more likely to attend high poverty schools
than whites of the same income.116
Second, I asked Professor Arcidiacono to employ a more sophisticated definition of
disadvantaged neighborhood (and high school) than one that relies solely on income levels. I
asked him to provide equal weight to three factors—(a) parental income, (b) parental
education, and (c) percentage of families speaking a language other than English at home—to
create a single composite measure of neighborhood and high school socioeconomic status.

114 Card’s four variables are: 1) first-generation college, 2) eligible for fee-waivers, 3) from disadvantaged
neighborhoods, and 4) tagged by a Harvard admissions officer as “disadvantaged” (which could be because they
are from disadvantaged families or disadvantaged neighborhoods).
115 See, e.g., Richard D. Kahlenberg, All Together Now: Creating Middle-Class Schools through Public School
Choice (Brookings Press, 2001).
116 See, e.g., Emma García, “Poor black children are much more likely to attend high-poverty schools than poor
white children,” Economic Policy Institute, January 13, 2017, http://www.epi.org/publication/poor-black-

children-are-much-more-likely-to-attend-high-poverty-schools-than-poor-white-children/ (81.1% of poor black
children attend high poverty schools compared with 53.5% of poor white children.).

30

These factors are all associated with academic outcomes in the academic literature.117 And
these factors have been employed in other contexts to denote socioeconomic disadvantage.118
Third, I asked Arcidiacono to provide a preference to those in the least disadvantaged
third of neighborhood Census tracts (and high schools) in the data set.119 This is preferable to
the measure that Card employs to provide a preference to those living in a neighborhood with
a median income below $65,000.120 The problem with Card’s $65,000 threshold is that it
includes middle-class as well as economically disadvantaged neighborhoods. (In 2016, the

117Income: Stanford University’s Sean Reardon has found that “the income achievement gap (defined here as the
average achievement difference between a child from a family at the 90th percentile of the family income
distribution and a child from a family at the 10th percentile) is now nearly twice as large as the black-white
achievement gap.” Sean F. Reardon, “The widening academic achievement gap between the rich and the poor:
New evidence and possible explanations,” in Greg Duncan & Richard Murnane (Eds.), Whither Opportunity?
Rising Inequality and the Uncertain Life Chances of Low-Income Children (New York: Russell Sage Foundation
Press, 2011), https://cepa.stanford.edu/content/widening-academic-achievement-gap-between-rich-and-poor-
new-evidence-and-possible.
Parents Education: According to a 2011 Brookings Institution analysis, for example, looking at family income and
maternal education and the relationship to child outcomes, “[t]he range in average math readiness outcomes
between the lowest and highest education and income groups … is 1.3 standard deviations for education and 1.1
for household income.” Julia Isaacs & Katherine Magnuson, “Income and Education as Predictors of Children’s
School Readiness,” Brookings Institution, December 2011, p. 11, https://www.brookings.edu/wp-
content/uploads/2016/06/1214_school_readiness_isaacs.pdf.
English Language Leaners (ELLs): ELL students have lower levels of academic achievement than native English
speakers. Being able to read adequately by the end of 3rd grade and having adequate math skills by the end of
8th grade are seen as key predictors of future success. According to the National Assessment of Educational
Progress in 2013, English Language Learners lag behind non-English Language Learners by about 40 percentage
points on meeting “basic or above” levels in both cases. Across the U.S., 72% of non-ELL students score at or
above basic in reading in 4th grade, compared with 31% of ELL students. In 8th grade math, 75% of non-ELL
students score at or above basic compared with 31% of ELL students. David Murphey, “The Academic
Achievement of English Language Learners: Data for the U.S. and Each of the States,” Child Trends, December
2014, pp. 2-3, https://www.childtrends.org/wp-content/uploads/2015/07/2014-
62AcademicAchievementEnglish.pdf.
118 See Richard D. Kahlenberg, “School Integration in Practice: Lessons from Nine Districts” Century
Foundation, October 14, 2016 (describing the use of Census tract data involving median family income, adult
educational attainment, and percentage of population that is non-English speaking among other factors, by
Chicago and Dallas school districts), https://tcf.org/content/report/school-integration-practice-lessons-nine-
districts/.
119The definition of “neighborhood” in the simulation comes from the College Board and can be one or many
Census tracts. The bottom third is calculated from the distribution of neighborhoods with at least one applicant
to Harvard. Because neighborhoods were not uniquely identified, they were discerned from unique combinations
of observable characteristics.

31

median household income was $57,617.)121 By setting the neighborhood income threshold for
disadvantage too high, Card’s measure unfairly penalizes African-American and Hispanic
students who, on average, live in more economically disadvantaged neighborhoods than
whites of the same income.122
Fourth, I asked Arcidiacono to reinstate the athletic preference. For reasons outlined
above, a realistic race-neutral alternative would not eliminate athletic preferences.123
Fifth, I asked Arcidiacono to turn off the preference for early admission, something
Card failed to do in his simulation.124
The results of the new simulation (which is labeled Simulation 6), are presented
below.125 (For the full results, see Appendix A.)

121Gloria G. Guzman, “Household Income: 2016,” U.S. Census Bureau American Community Survey Briefs,
September 2017, p. 1.
See Kahlenberg Report, p. 38 (noting that while 6% of young whites live in neighborhoods with more than
122
20% poverty rates, 66% of African Americans live in such neighborhoods).

123 Card eliminates athletic preference. Card Report, p. 104.
124 For completeness, I include in the appendix the results of a version of Simulation 6 which includes the early
admission preference turned back on. It is designated Simulation 7. The results are very similar to those in
Simulation 6, though with a slightly smaller Hispanic and Other share.
125 Simulations 1-5 were presented in Kahlenberg Report, Appendix C.
32

2. Results of Simulation 6 demonstrate the viability of another

race-neutral alternative.
Harvard – Class of 2019
Status Quo Simulation 6

Race-Based Admissions Race-Neutral Admissions
White 40% White 32%
African American 14% African American 10%
Hispanic and Other 14% Hispanic and Other 20%
Asian American 24% Asian American 31%
Race Missing 8% Race Missing 7%
First Generation College 7% First Generation College 25%
SAT score (percentile) 2244 (99th) SAT score (percentile) 2173 (98th)
HS GPA converted 77 HS GPA converted 77
A few observations are worth highlighting.
First, under Simulation 6, combined racial and ethnic diversity of underrepresented
students actually rises from 28% under the status quo (14% African American and 14%
Hispanic and Other) to 30% (10% African American and 20% Hispanic and Other). The
Hispanic and Other share increases by 43%. As discussed elsewhere, the decline in African-
American representation could be addressed with the use of better socioeconomic data (wealth
and single parent family in particular).126 Moreover, it is notable that the 10% African-

126 Kahlenberg Report, pp. 17-20, and 52. See also discussion infra.

33

American admitted shares under Simulation 6 is greater than Harvard’s enrolled share
throughout most of the affirmative action era.127
Second, socioeconomic diversity, which the courts and Harvard also value for
promoting the educational benefits of diversity, increases dramatically under Simulation 6.
The percentage of first generation college students, for example, more than triples (from 7%
to 25%). Given Harvard’s lopsided socioeconomic profile currently, the changes predicted by
the simulation should significantly enhance the educational benefits of diversity.
Third, academic preparedness of students remains stellar under Simulation 6. The
average composite SAT score (2173) is at the 98th percentile, just 1 percentile point different
than under the current system employing racial preferences (2244 at the 99th percentile).
Average converted high school GPA remains identical at 77. All in all, Simulation 6 would
provide a viable path for Harvard to maintain academic excellence while promoting higher
levels of overall racial/ethnic and socioeconomic diversity.
3. Through the inclusion of additional socioeconomic factors and

better recruitment of low-income students, the simulation could
produce even greater racial, ethnic, and socioeconomic
diversity.
If I had been given access to additional socioeconomic information that Harvard did
not make available or if Harvard had recruited more aggressively, I could have created a
simulation with even higher levels of racial, ethnic, and socioeconomic diversity. Thus, it is
likely that my Simulation 6 is understating Harvard’s ability to employ a viable race-neutral
alternative.
More accurate income data. Harvard has access to the precise family income of
applicants, but I was limited to rough proxies, such as whether students were eligible for fee

127 Kahlenberg Report, p. 50
34

waivers or tagged by Harvard admissions officers as disadvantaged. Card did not deny that
these factors can mask considerable income variations. Nor did he deny that given large
income differences by race in the United States, the lack of precise income data blunted the
potential racial dividend of class-based affirmative action.128
Wealth data. Harvard has data on the wealth (net worth) of applicants, to which I
was denied access. Card did not deny that wealth differences by race are much greater than
income differences in the United States, and that the use of wealth in admissions could
therefore provide a larger racial dividend than other socioeconomic factors.129
Family Structure. Harvard also has data on whether or not applicants are from single
parent households, but refused to produce this information. Family structure can be an
important ingredient in a socioeconomic affirmative action program. Children growing up in
single parent families have lower academic achievement and attainment than children growing
up in two parent households, on average. This is partly true because children growing up in a
single parent household have lower incomes on average than households with two parents.
According to the U.S. Census Bureau, for example, families headed by single mothers are
much more likely to live in poverty than families with two parents.130 But single parent
household data do not simply mimic income data, rendering the former data point
superfluous. “Research has shown that FA children [children raised in father-absent homes]
graduate from high school and attend college at a lower rate, perform worse on standardized
tests, and are more likely to use drugs than children from FP [father-present] homes. ... Even

129 Kahlenberg Report, pp. 17-20 and 52.
U.S. Census Bureau, America’s Families and Living Arrangements: 2016, Table C8, https://www.census.gov
130
/data/tables/2016/demo/families/cps-2016.html.

35

when controlling for economic and racial differences of the family, children from two-parent
households outperform children from one-parent households across a variety of measures.”131
Considering family structure in a socioeconomic affirmative action program would
disproportionately benefit African-American applicants. In 2015, 66% of black children and
42% of Hispanic children were raised in single parent households, compared with 25% of
white children.132
Better Recruitment. Finally, Simulation 6 understates its racial and socioeconomic
potential because it is limited to the existing pool of applicants even though there is good
reason to believe that Harvard does a poor job of recruiting students from disadvantaged
backgrounds.133
V. Conclusion
The Fourteenth Amendment requires that institutions such as Harvard bear “the
ultimate burden of demonstrating, before turning to racial classifications, that available,
workable, race-neutral alternatives do not suffice.”134 In the years leading up to the current
litigation, Harvard failed to take even elementary steps to make this showing. Harvard’s
experts, likewise, have failed to rebut the research and evidence suggesting that viable race-
neutral strategies are available to it. Custom-made simulations using actual Harvard applicant
data demonstrate at least four viable race-neutral pathways by which Harvard can maintain its

131Mark S. Barajas, “Academic Achievement of Children in Single Parent Homes: A Critical Review,” The
Hilltop Review, Vol. 5, Issue 1, December 2011, pp. 13-14 (citations omitted),
http://scholarworks.wmich.edu/cgi/viewcontent.cgi?article=1044&context=hilltopreview.
132Annie E. Casey Foundation, “Children in single-parent families by race,” Kids Count Data Center (2018),
http://datacenter.kidscount.org/data/tables/107-children-in-single-parent-families-
by#detailed/1/any/false/573,869,36,868,867/10,11,9,12,1,185,13/432,431.
134 Fisher, 133 S. Ct. at 2420.
36

strong academic reputation while doing an even better job than it does today of attaining the
educational benefits of racial, ethnic, and socioeconomic diversity.
Dated: January 29, 2018 s/ Richard D. Kahlenberg
37

VI. Appendix A
38

Results of Race Neutral Alternatives Using Adjusted Card Model - Class of 2019
Status Quo Status Quo Simulation 6 Simulation 6 Simulation 7 Simulation 7
(Numbers) (Percentages) (Numbers) (Percentages) (Numbers) (Percentages)
Total Admitted 1679 100% 1679 100% 1679 100%
White 676 40% 541 32% 561 33%
Black 234 14% 164 10% 160 10%
Hispanic 233 14% 330 20% 313 19%
Asian 402 24% 523 31% 521 31%
Race Missing 134 8% 121 7% 123 7%
Northeast 694 41% 615 37% 630 38%

Midwest 207 12% 164 10% 170 10%
South 379 23% 392 23% 391 23%
West 399 24% 509 30% 488 29%
Legacy 259 15% 61 4% 81 5%

Athlete 180 11% 144 9% 159 9%
Disadvantaged 297 18% 865 52% 815 49%
First Generation 120 7% 423 25% 400 24%
Financial Aid 1102 66% 1420 85% 1389 83%
Waiver 309 18% 888 53% 832 50%
Rural 59 4% 87 5% 82 5%
Avg. Comp. SAT 2244 2173 2180

Avg. Comp. ACT 33 32 33
Avg. Academic Index 228 225 225
Avg. Converted GPA 77 77 77
*Simulation 6 adjusts Card model (4x socioeconomic boost) as described in Section IV(B)(1).
**Simulation 7 identical to SImulation 6 but assumes early action preferences remain.
EXHIBIT C
Supplemental Expert Report Regarding the Final Report of the Committee to

Study Race-Neutral Alternatives
In April 2018, long after I submitted my expert rebuttal report in Students for Fair
Admissions v. Harvard, Harvard College produced a “Report of the Committee to
Study Race-Neutral Alternatives.”1 The report is the work product of a committee
consisting of three senior Harvard officials: William Fitzsimmons, Dean of
Admissions and Financial Aid; Rakesh Khurana, Dean of Harvard College; and
Michael D. Smith, Dean of the Faculty of Arts and Sciences.
The Committee concludes, after reviewing expert reports in the litigation and other
materials, that “at present, no workable race-neutral admissions practices could
promote Harvard’s diversity-related educational objectives as well as Harvard’s
current whole-person race-conscious admissions program while also maintaining
the standards of excellence that Harvard seeks in its student body.”2
Because this report—produced at this late date in the litigation—provides new
information that I was unable to include in my opening or rebuttal reports, I have
prepared this brief supplemental report.
There are numerous issues I take issue with in the Committee report (many of
which echo points I have made in my prior reports), but I will limit myself to five
critical points.
1. The Committee Tacitly Accepted My Race-Neutral Alternatives on
Diversity Grounds.
The Committee does not explicitly reject race-neutral alternatives I outlined on
diversity grounds. In my expert reports, I described several simulations—including
Simulations 3, 4, 5, 6, and 7—which involved modest shifts in the shares of African
American and Hispanic students but largely maintained overall levels of racial
diversity. Each of these simulations also projected large increases in socioeconomic
diversity.3
The Committee did suggest that a plan that eliminates the use of race—and puts no
alternatives in place—would be unacceptable because it would result in a nearly
50% drop in the population of students who identify as underrepresented
minorities. African-American representation would drop from 14% to 6%, and
Hispanic or Other students would drop from 14% to 9%.4 By contrast, the

1 HARV00097310-00097328.
2 HARV00097327.
3 See, e.g., Kahlenberg Opening Report and Rebuttal Report, Simulations 3, 4, 5, 6,
and 7.
4 HARV00097317.
1
Committee did not suggest that my simulations failed to produce adequate levels of
diversity.
It would have been very difficult for the Committee to reject my simulations on
diversity grounds for two reasons. First, the Committee never provided a concrete
definition of what level of diversity would be acceptable. To the contrary, the
Committee said it does not have “in mind a specific number of students of any given
racial or ethnic background who must be on campus in order for Harvard’s
diversity-related objectives to be satisfied.”5 Having staked out this ground, it
would have been difficult to reject my simulations as unacceptable on diversity
grounds for failing to meet a nonexistent standard. Indeed, when asked specifically
if he would reject a race-neutral alternative that produced a class in which 10% of
students identified as African American, Dean Michael Smith testified, “We were not
looking for any particular number.”6
The reluctance to reject my alternatives is surely bolstered by the large rise such
policies would produce in socioeconomic diversity. In the admitted class of 2019,
only 17.4% of students came from roughly the bottom two-thirds of the
socioeconomic distribution; that rises to 54.3% in Simulation 4. In considering the
educational benefits of diversity, this much-needed increase in socioeconomic
diversity is critical. As the Committee appropriately acknowledged, “Students from
modest socioeconomic backgrounds may have distinct perspectives to share with
their peers in and outside the classroom, and a class that is diverse in socioeconomic
backgrounds is an essential part of the diversity of a student body that Harvard
strives to achieve.”7
2. The Committee Incorrectly Suggests Race-Neutral Alternatives
Compromise Academic Quality.
Having failed to discredit my race-neutral alternatives on the basis of diversity, the
Committee instead alleges that the alternatives reviewed are unworkable because
they fail to maintain “the standards of excellence that Harvard seeks in its student
body.”8 For instance, the Committee rejects one alternative involving socioeconomic
preferences, even though it produces a share of underrepresented minorities
“comparable to that of the current class” because “the proportion of admitted
students with the highest academic ratings (as assigned by admissions officers)

5 HARV00097317.
6 Michael Smith deposition, April 23, 2018, p. 125.
7 HARV00097322.
8 HARV00097327.
2
would be expected to drop from 76% to 66%.”9 Although the Committee does not
identify the simulation in question, this description matches Simulation 4.10
But consider the actual impact of Simulation 4 using objective academic indicators
that are typically employed in academic research on the viability of race-neutral
alternatives (rather than a slice of Harvard’s internal ratings). The average
composite SAT score is quite comparable, moving from the 99th percentile (2239) to
the 98th percentile (2191). Average converted GPA actually rises slightly from 77.0
to 77.1.11 These changes would hardly seem to represent a threat to “the standards
of excellence that Harvard seeks in its student body.”12
Moreover, in considering the modest change in percentage of students receiving an
academic rating of 1 or 2 (10 percentage points, from 76% to 66%), surely it is
relevant that many more of the students admitted would have overcome
socioeconomic obstacles. Indeed, the Committee itself argues that academic
accomplishments should be considered in the context of hurdles a student has had
to surmount. “Harvard understands that excellence can be found in all quarters of
society, and students who excel or show promise of excelling despite limited access
to educational and other resources often show the kind of determination and
resilience that makes them likely to benefit greatly from what Harvard has to offer
students—and show that they will in turn have much to offer Harvard,” the
Committee observed.13 At another point in the report, the Committee observed that
SAT scores should be considered “in light of an applicant’s background and ability to
prepare.”14 The report continued: Harvard has “never sought to … maximize the
SAT scores of the admitted class.”15
Presumably, the same reasoning would be applied to ratings on factors such as
extracurricular activities. A student responsible for helping to support her family
through a job waiting on tables might not be expected to assemble an array of
extracurricular activities as polished as an advantaged student who can devote all
her time to participating in such activities.

9 HARV00097323.
10 Card Opening Report, p. 193.
11 Card Opening Report, p. 193.
12 HARV0097327.
13 HARV00097322.
14 HARV00097327. See also Dean Michael Smith deposition, p. 147.
15 HARV00097327.
3
3. The Committee Incorrectly Rejects Place-Based Approaches to

Achieving Diversity.
On principle, the Committee rejects race-neutral alternatives that focus on admitting
top students from geographic areas because it says Harvard’s nuanced admission
system does not make it possible to admit “the single ‘best’” student.16 But Harvard
engages in difficult judgments to determine the students it deems best qualified
every year.
Moreover, when using as geographic units the 33 College Board Neighborhood

Clusters that I employ in my simulations, Harvard could pick roughly the 50 best
enrolled students from each cluster, rather than “the single best.”
Finally, if Harvard believes that such a commitment to geographic diversity is too
constraining, it is possible, instead, to achieve racial, ethnic, and socioeconomic
diversity and to maintain high standards, through a race-neutral system that avoids
a place-based element. I model such approaches in Simulations 6 and 7.
4. The Committee Incorrectly Rejects Socioeconomic Preferences Because
They May Risk Undermining Harvard’s Diversity Goals.
Although many members of the public may see African-American and Hispanic
students who have overcome economic obstacles as especially worthy of
consideration, the Committee raises a concern about a system “in which many of the
non-White students would come from modest socioeconomic circumstances.”17
This approach, the Committee says, could “undermin[e] rather than advanc[e]
Harvard’s diversity-related educational objectives.”18
A close examination of the data, however, suggest that Harvard’s student body is
hardly lacking in advantaged underrepresented minority students, nor would it be
so under a system of socioeconomic preferences.
Harvard admissions officers tag as “disadvantaged” students who come from
families with annual incomes below $80,000 or whose parents lack a four-year
college degree.19 In other words, this group includes not only students who might
conventionally be thought of as disadvantaged but also many students from middle-
class families. Roughly speaking, about two-thirds of all Americans would be
characterized by Harvard as “disadvantaged.”20

16 HARV0009720.
17 HARV00097323.
18 HARV00097323.
4
Because African-American and Hispanic students are more likely to be

disadvantaged than the average American, substantially more than two-thirds are
likely to be so categorized by Harvard. Indeed, according to the Committee, fully
70% of African Americans and 60% of Hispanics nationally are disadvantaged
enough to be eligible for zero parental contribution under Harvard’s financial aid
program (earning less than $65,000 annually).21 An even higher percentage of these
students, therefore, would qualify for the disadvantaged tag (which has an $80,000
cut off and also includes families making more than $80,000 where the parents lack
a four year college degree).
While the vast majority of African-American and Hispanic students nationally would
be considered disadvantaged by Harvard’s reckoning, in the current admitted class
of 2019, only 29% of underrepresented minorities were tagged as disadvantaged.
This number would rise to approach the national averages under the race-neutral
alternatives I outlined in my report. In Simulation 4, for example, 21% of
underrepresented minority students would be advantaged, and 79% disadvantaged.
In other words, Harvard would move from its current system, which is tilted heavily
toward relatively privileged underrepresented minority students, to a situation
where the socioeconomic breakdown of underrepresented minority students would
be much closer to the national average. It thus would increase socioeconomic
diversity both within racial groups and more generally at Harvard.
5. The Committee Disingenuously Raises New Concerns about Expanding
Financial Aid.
For the first time in this litigation, the Committee raises a new concern: that
“Harvard could not significantly increase its financial aid budget without detracting
from other commitments.”22
This is an audacious claim for the nation’s richest university, whose $37 billion
endowment exceeds the GDP of more than half the countries in the world.23 This
new claim of financial inadequacy also rings hollow in light of the earlier testimony
of leading Harvard officials. Financial Aid director Sarah Donahue testified that
Harvard has no maximum or cap on the amount of money available for financial aid.
She said that it would not present a problem if the number of students eligible for
the Harvard Financial Aid Initiative doubled (from roughly 25% of the class to
50%). Dean Fitzsimmons testified that Harvard’s charge is to admit “the best, most
interesting students” and that there is no constraint on the number of students
Harvard can admit through its financial aid initiative.24

21 HARV00097319.
22 HARV00097320.
5

Dated: April 26, 2018 /s/Richard D. Kahlenberg

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Case 1:14-cv-14176-ADB Document 416 Filed 06/15/18 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT

STUDENTS FOR FAIR ADMISSIONS, INC.,

PRESIDENT AND FELLOWS OF

DECLARATION OF RICHARD KAHLENBERG

I, Richard Kahlenberg, pursuant to 28 U.S.C. § 1746, declare the following:

would testify competently thereto.

2. Attached as Exhibit A to this declaration is a true and correct copy of my expert

3. I have personal knowledge of the contents of the expert report attached as

5. Attached as Exhibit B to this declaration is a true and correct copy of my rebuttal

are true and accurate.

8. Attached as Exhibit C to this declaration is a true and correct copy of my

9. I have personal knowledge of the contents of my supplemental expert report

Exhibit C are true and accurate.

is true and correct to the best of my knowledge.

Executed on this day, June 14, 2018.

/s/ Richard Kahlenberg

IN THE UNITED STATES DISTRICT COURT

STUDENTS FOR FAIR ADMISSIONS, INC.,

PRESIDENT AND FELLOWS OF

EXPERT REPORT OF RICHARD D. KAHLENBERG

I. Professional Qualifications ...................................................................................................................... 1

II. Purpose ....................................................................................................................................................... 3

III. Summary of My Opinions ....................................................................................................................... 4

C. Well-crafted race-neutral strategies do not compromise academic quality. .............................. 13

A. Harvard could increase socioeconomic preferences. .................................................................... 17

2. Harvard’s socioeconomic diversity is deeply lacking. .............................................................. 20

4. Harvard could increase the weight it gives to socioeconomic factors................................... 25

B. Harvard could increase financial aid................................................................................................ 29

C. Harvard could reduce or eliminate preferences that favor non-minorities. .............................. 31

1. Legacy preferences ........................................................................................................................ 31

2. Donor preferences ......................................................................................................................... 33

4. Faculty and staff preferences ....................................................................................................... 36

D. Harvard could adopt admissions policies utilizing geographic diversity, including

E. Harvard could increase its recruitment efforts. ............................................................................. 39

F. Harvard could increase its admission of community college transfers. ..................................... 41

G. Harvard could end early admissions................................................................................................ 42

B. Through inclusion of additional socioeconomic factors and better recruiting of

VII. Conclusion ........................................................................................................................................... 53

VIII. Appendices .......................................................................................................................................... 55

A. Appendix A – Curriculum Vitae ...................................................................................................... 55

B. Appendix B – Documents Relied Upon or Considered in Forming Opinion ......................... 73

C. Appendix C – Simulations ................................................................................................................ 75

My name is Richard D. Kahlenberg. I am a senior fellow at The Century Foundation, a non-

the Washington Post.2

stronger efforts to address disparities by socioeconomic status.”5

• America’s Untapped Resource: Low-Income Students in Higher Education (Century Foundation,

My law review articles on race-neutral alternatives to racial preferences include:

• “Getting Beyond Racial Preferences: The Class-Based Compromise,” 45 American

officers at a number of selective colleges.

The rate for my services in this matter is $295 an hour.

III. Summary of My Opinions

to racial classifications, that available workable race-neutral alternatives do not suffice.”9

reasonable degree of professional certainty.

alternatives to produce the educational benefits of diversity.

benefits of diversity. These include:

• Increasing socioeconomic preferences;

educational benefits of diversity without the use of racial preferences.

A. Experience at selective public universities shows that race-neutral strategies

first take account of race. There is no other way.”10

K-12 schools to increase the pool of college-ready applicants.12

increased economic diversity among the student body.13

levels of socioeconomic diversity than do race-based admissions.23 The enhancement of

In California, for example, students from economically disadvantaged backgrounds were