Students for Fair Admissions, Inc. v. President and Fellows of Harvard College et al

Filing 150

Letter/request (non-motion) from Students for Fair Admissions . (Attachments: # 1 Affidavit Ex A, # 2 Exhibit Ex B, # 3 Affidavit Ex C, # 4 Affidavit Ex D, # 5 Affidavit Ex E)(Consovoy, William)

3033 Wilson Boulevard
Suite 700
Arlington, VA 22201
703.243.9423
www.consovoymccarthy.com

April 29, 2016
VIA ECF
Hon. Allison D. Burroughs
U.S. District Court, District of Massachusetts
John Joseph Moakley U.S. Courthouse
1 Courthouse Way, Suite 2300
Boston, MA 02210
Re:

Students for Fair Admissions, Inc. v. President & Fellows of Harvard College,
No. 1:14-­‐cv-­‐14176-­‐ADB

Dear Judge Burroughs,
Plaintiff Students for Fair Admissions, Inc. (“SFFA”) submits this opposition to
Harvard’s April 15 motion seeking production of what it mischaracterizes as “basic
documents and information relating to SFFA’s operations.” Harvard Motion (“Mot.”)
at 1. Harvard seeks to discover the identity of every SFFA member, details about
every financial contribution to SFFA, all documents concerning SFFA’s governance
and strategy, and every communication between SFFA and its members, prospective
members, and donors. This sweeping request far exceeds the scope of permissible
discovery and should be denied.
SFFA has already produced the documents relevant to establishing its associational
standing (the only matter at issue). Specifically, SFFA has produced the names of
(and relevant information about) the members on whose behalf this action is
brought, its application to become an IRS-­‐approved 501(c)(3) entity, the IRS’s
approval letter, its Articles of Incorporation and Bylaws, its Annual Report, and
numerous other documents. It also has provided interrogatory responses describing
its members’ rights and its organizational structure. Federal courts uniformly agree
that any further inquiry into the plaintiff’s internal operations is improper when,
like SFFA, it is a voluntary membership association. But even if the material Harvard
seeks were relevant, the First Amendment would protect it from disclosure. As the
appended declarations show, SFFA’s associational rights would be significantly
chilled, and Harvard cannot come close to establishing any compelling need for this
information.
SFFA—like the NAACP, the ACLU, the Sierra Club, and all voluntary membership
associations—should not be subjected to the sweeping discovery Harvard seeks.
Indeed, we are aware of no such association that has ever been forced to submit to
this kind of intrusive and abusive investigation merely because it brought litigation
on behalf of its injured members. Simply put, Harvard’s discovery requests are
unprecedented and should be rejected.

Hon. Allison D. Burroughs
April 29, 2016
Page 2

I.

The Information Harvard Seeks Is Not Relevant To SFFA’s Standing.

“Parties may obtain discovery regarding any nonprivileged matter that is relevant to
any party’s claim or defense and proportional to the needs of the case.” Fed. R. Civ. P.
26(b)(1). Thus, discovery requests that are “irrelevant” and which have “no bearing
on the jurisdictional analysis” must be denied. Noonan v. Winston Co., 135 F.3d 85,
94-­‐95 (1st Cir. 1998); Salk Inst. v. Acceleron Pharma, Inc., 2013 WL 6622946, at *2
(D. Mass. Dec. 12, 2013) (denying motion to compel because “the discovery sought is
not relevant” and the “issues can be decided without [such] exhaustive production”).
“Moreover, the party seeking discovery information over an adversary’s objection
has the burden of showing the information’s relevance.” Waugh v. BJ’s Wholesale
Club, Inc., 2014 WL 458203, at *3 (D. Mass. Feb. 3, 2014). The issue thus is not which
party will prevail on the merits of the standing question. Mot. at 2 n.3. It is whether
the documents Harvard seeks are relevant to associational standing. As explained
below, they are not.
A.

SFFA has provided Harvard with documents in its possession that
are relevant to associational standing.

By definition, relevance must be measured against the governing legal standard. “An
association may assert standing on behalf of its members if: (1) at least one of its
members possesses standing to sue in its own right (by meeting the Article III
requirements, including, inter alia, injury-­‐in-­‐fact); (2) the interests that the suit
seeks to vindicate are germane to the organization’s objectives; and (3) neither the
claim asserted nor the relief demanded necessitates the participation of individual
members.” Sea Shore Corp. v. Sullivan, 158 F.3d 51, 55 (1st Cir. 1998). SFFA has
produced responsive documents relevant to that standard.
First, SFFA has produced the names of (and relevant information about) the
members on whose behalf it has sued. In particular, SFFA has identified four Asian-­‐
American members rejected by Harvard, five who intend to apply to Harvard, and
six parents of rejected or future applicants. “[O]ne form of injury under the Equal
Protection Clause is being forced to compete in a race-­‐based system that may
prejudice the plaintiff.” Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551
U.S. 701, 719 (2007). That is the injury SFFA alleges on behalf of its members. As to
those members whom Harvard rejected, any further information that could possibly
be relevant is already in Harvard’s possession (e.g., admissions files containing
those applicants’ race, grades, test scores, and rejection letter). As to members who
plan to apply to Harvard or their parents (who may bring a claim on their behalf, see
id.), SFFA has produced the relevant responsive documents. Thus, nothing Harvard’s
motion seeks is relevant to whether “at least one of [SFFA’s] members possesses
standing to sue in [his or her] own right.” Sea Shore Corp., 158 F.3d at 55.
Second, SFFA has produced detailed information showing that this suit is germane to
its mission. The “requirement of germaneness is undemanding; mere pertinence
between litigation subject and organizational purpose is sufficient.” Bldg. & Const.
Trades Council of Buffalo, New York & Vicinity v. Downtown Dev., Inc., 448 F.3d 138,

Hon. Allison D. Burroughs
April 29, 2016
Page 3

148 (2d Cir. 2006) (quoting Nat’l Lime Ass'n v. EPA, 233 F.3d 625, 636 (D.C. Cir.
2000)); Ass'n of Am. Physicians & Surgeons, Inc. v. Texas Med. Bd., 627 F.3d 547, 550
n.2 (5th Cir. 2010) (describing germaneness as a “low threshold”); Presidio Golf Club
v. National Park Serv., 155 F.3d 1153, 1159 (9th Cir. 1998) (“[C]ourts have generally
found the germaneness test to be undemanding”). The requirement’s limited
purpose is to keep suits that have “nothing whatsoever to do with the association’s
area of competence or reason for existence” out of federal courts. Humane Soc. of the
U.S. v. Hodel, 840 F.2d 45, 57 (D.C. Cir. 1988).
SFFA has produced the responsive documents relevant to this inquiry, including its
application to become a 501(c)(3) entity, the IRS approval letter, its Articles of
Incorporation, and its Bylaws. These documents explain that SFFA’s purposes “are
to defend human and civil rights secured by law, including the right of individuals to
equal protection under the law, through litigation and other lawful means.” SFFA-­‐
Harvard 000002, 000059. SFFA’s IRS-­‐approved application further describes it as a
“coalition of prospective applicants and applicants to higher education institutions
who were denied admission to higher education institutions, their family members,
and other individuals who support the organization’s purpose and mission of
eliminating racial discrimination in higher education admissions.” SFFA-­‐Harvard
000041. The Bylaws provide that SFFA has a five-­‐member Board (one of whom the
members elect), that members (other than initial members) pay dues, and that SFFA
has a President, Secretary, and Treasurer. SFFA-­‐Harvard 000053, 000059-­‐000063.
SFFA also has produced its Annual Report, which describes in detail the
association’s activities, membership, and institutional goals. SFFA-­‐Harvard 000119-­‐
000122.
These are the documents relevant to assessing SFFA’s associational standing. See,
e.g., Ctr. for Sustainable Economy v. Jewell, 779 F.3d 588, 598 (D.C. Cir. 2015) (“CSE’s
bylaws, along with the declarations of CSE’s members and its President, adequately
demonstrate that it is an organization eligible to assert associational standing.”).
Indeed, SFFA’s production likely is already cumulative given the limited showing
needed to establish associational standing. See, e.g., Gay-­‐Straight Alliance of
Okeechobee High Sch. v. Sch. Bd. of Okeechobee Cty., 477 F. Supp. 2d 1246, 1248,
1251-­‐52 (S.D. Fla. 2007) (“unincorporated, voluntary association of students” called
the “Gay-­‐Straight Alliance of Okeechobee High School” had standing to challenge
high school policies).
Third, and last, there are no documents responsive to whether SFFA members must
participate individually because the First Circuit has decided the issue as a matter of
law. A “request for declaratory relief … does not require any individual member’s
participation as a party. Such declaratory relief turns on a question of law which is
not particular to each member of the Association …. The same is true for injunctive
relief which parallels the declaration.” Playboy Enters., Inc. v. Pub. Serv. Comm’n of
Puerto Rico, 906 F.2d 25, 35 (1st Cir. 1990). Here, SFFA seeks only declaratory and
injunctive relief. Doc. 1 at 119 (Complaint).

Hon. Allison D. Burroughs
April 29, 2016
Page 4

In sum, Harvard’s assertion that “SFFA’s production to date is woefully insufficient”
is unfounded. Mot. at 1. SFFA has produced the documents relevant to the three-­‐part
test for associational standing. That there are not more than 114 such documents is
unsurprising. The key question is whether the association has members who have
been injured by Harvard’s admissions policies—and Harvard has the documents
relevant to that issue. Beyond that, the purpose of the associational-­‐standing test is
merely to ensure that the “injury to an association’s members has some reasonable
connection with the reason the members joined the organization and with the
objectives of the organization.” Hodel, 840 F.2d at 59. SFFA has produced the
documents relevant to assessing whether the association can meet this “modest but
sensible standard.” Id.
B.

Harvard’s proposed “bona fide membership organization” test
misstates applicable precedent and would authorize defendants
to conduct abusive and irrelevant discovery in all cases brought
by voluntary membership associations.

Harvard nevertheless claims that it is entitled to discovery relating to whether SFFA
is a “bona fide membership organization,” including “documents and information
relating to SFFA’s operations, including the recruitment and selection of members,
the sources of its funding, and how members participate in the organization.” Mot. at
1. Harvard’s position has no legal support. The top-­‐to-­‐bottom audit that Harvard
proposes to conduct is irrelevant to associational standing when the plaintiff is an
IRS-­‐approved, 501(c)(3) voluntary membership association.
In seeking far-­‐reaching and irrelevant discovery, Harvard confuses the discovery
rules for non-­‐membership organizations with the rules for voluntary membership
associations like SFFA. The Supreme Court’s decision in Hunt v. Washington State
Apple Advertising Commission, 432 U.S. 333 (1977), makes this distinction clear. In
Hunt, the Washington State Apple Advertising Commission, a State agency with no
members, brought suit on behalf of Washington state apple growers and dealers. Id.
at 341-­‐42. That raised a novel issue. Although the Court had “recognized that an
association may have standing to assert the claims of its members even where it has
suffered no injury from the challenged activity, the Commission [was] not a
traditional voluntary membership association such as a trade association, for it had
no members at all.” Id. at 342. “If the Commission were a voluntary membership
association—a typical trade association—its standing to bring this action would be
clear under prior decisions of this Court.” Id.
The issue thus was whether “the Commission’s status as a state agency, rather than
a traditional voluntary membership association, preclude[d] it from asserting the
claims of the Washington apple growers and dealers who form its constituency.”
Hunt, 432 U.S. at 344. Under those unusual facts, it was appropriate to examine the
Commission further to see whether it “performs the functions of a traditional trade
association representing the Washington apple industry.” Id. The Court held that the
agency “possess[ed] all of the indicia of membership in an organization.” Id. The

Hon. Allison D. Burroughs
April 29, 2016
Page 5

Court emphasized that this examination was appropriate only “[u]nder the
circumstances presented” to ensure “form” was not misused to deny standing to an
“association representing individual growers and dealers who collectively form its
constituency.” Id. at 345. In short, Hunt did not alter the settled rule that applies
here: standing for a voluntary membership association is judged under the three-­‐
part test without any further examination of its operations.
Parents Involved confirms the distinction. “Parents Involved in Community Schools”
was “a nonprofit corporation comprising the parents of children who have been or
may be denied assignment to their chosen high school in the district because of their
race.” Parents Involved, 551 U.S. at 713. At no point did the Supreme Court or the
lower courts allow the kind of intrusive investigation into the association’s activities
that Harvard demands here. Parents Involved was not required to disclose the name
of every member. Id. at 718-­‐20. Nor was there any discovery into its fundraising,
membership involvement in day-­‐to-­‐day decision-­‐making, or communications. As a
voluntary membership association, Parents Involved could sue because one of its
members was injured, id. at 718-­‐19, and because it met “the other requirements for
associational standing,” Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 377
F.3d 949, 958 (9th Cir. 2004) (citing Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.
(TOC), Inc., 528 U.S. 167, 181 (2000)).
No Supreme Court decision draws a different line. The unprecedented audit-­‐via-­‐
discovery that Harvard seeks here was not performed on the associational plaintiff
seeking to defend racial preferences in Schuette v. Coalition to Defend Affirmative
Action, Integration & Immigrant Rights & Fight for Equality By Any Means Necessary
(BAMN), 134 S. Ct. 1623 (2014). Indeed, no discovery of the kind Harvard seeks here
was conducted even though BAMN’s standing was litigated in the district court. See
Coal. to Defend Affirmative Action, Integration & Immigrant Rights & Fight for
Equality By Any Means Necessary v. Schuette, 539 F. Supp. 2d 924, 947 (E.D. Mich.
2008). Friends of the Earth likewise was not subjected to this intrusive scrutiny in
Laidlaw. See 528 U.S. at 181-­‐88. In fact, Harvard can point to no Supreme Court case
in which the standing inquiry went beyond the three-­‐part test when the plaintiff
was a voluntary membership association.
Camel Hair and Cashmere Institute of America v. Associated Dry Goods Corp., 799 F.2d
6 (1st Cir. 1986), the only First Circuit case upon which Harvard relies, reaches the
same conclusion. The Institute was a voluntary membership association formed “to
promote the use of camel hair and cashmere fibers and to safeguard the interests of
the cashmere and camel hair industry.” Id. at 7. The Institute had no employees; the
executive director was an attorney; and it only had six members. Id. The First Circuit
upheld the Institute’s right to sue over a labeling issue, rejecting a challenge to its
associational standing. As the court explained, “suits by associations operate to the
benefit of the individuals represented and the judicial system as a whole.” Id. at 11.
“[T]he very forces causing individuals to band together in association provide some
guarantee that the association will work to promote the members’ interests.” Id.
“Given this strong endorsement of the associational standing doctrine,” id., the Court

Hon. Allison D. Burroughs
April 29, 2016
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rejected the challenge under the three-­‐part test, id. at 11-­‐12. The First Circuit did
not endorse the kind of discovery Harvard seeks here.
The other cases upon which Harvard relies similarly provide it no support. In each,
the plaintiff was not a voluntary membership association. See Fund Democracy, LLC
v. SEC, 278 F.3d 21, 25-­‐26 (D.C. Cir. 2002) (“informal consortium” with no “discrete,
stable group of persons with a definable set of common interests”); American Legal
Found. v. FCC, 808 F.2d 84, 87-­‐88 (D.C. Cir. 1987) (“nonprofit media law center”
representing “all members of the public who regularly watch ABC News”);
Washington Legal Found. v. Leavitt, 477 F. Supp. 2d 202, 208 (D.D.C. 2010) (“public
interest law firm, not a representative of a special group”); Group Health Plan, Inc. v.
Philip Morris, Inc., 86 F. Supp. 2d 912, 915 (D. Minn. 2000) (HMOs); Health Res.
Group v. Kennedy, 82 F.R.D. 21, 24-­‐25 (D.D.C. 1979) (public-­‐interest organizations
with no members). In one other case, standing failed mainly for lack of “injury to any
individual member of the organization.” Nat’l Coal. for Students with Disabilities
Educ. & Legal Def. Fund v. Wiley, 2007 WL 951559, at *6 (N.D.N.Y. 2007).
Harvard claims that this discovery is relevant because “an association can have
standing to assert its members’ interests in court only if it meaningfully represents
them.” Mot. at 3. But germaneness already takes that into account. Harvard’s claim
that it is entitled to “documents and information sufficient to identify all of SFFA’s
members, not the few cherry-­‐picked by SFFA” misses the mark too. Id. at 3-­‐4. The
members SFFA identified were not “cherry-­‐picked”; they are the members on whom
SFFA relies for standing. Harvard has no more right to the name of every SFFA
member than States have to the name of every NAACP member in that group’s
challenge to voter-­‐ID laws. See, e.g., North Carolina State Conf. of NAACP v. McCrory,
997 F. Supp. 2d 322 (M.D.N.C. 2014). The same goes for the requests for “documents
relating to SFFA’s recruitment and selection of members,” SFFA’s communications
with members, and “SFFA’s sources of funding and its communications with
donors.” Mot. at 4-­‐5. All of these requests far exceed the permissible scope discovery
on germaneness.
That is why courts agree that the discovery Harvard seeks here is irrelevant. See,
e.g., Jewell, 779 F.3d at 596-­‐599; Brooklyn Ctr. for Indep. of the Disabled v. Bloomberg,
290 F.R.D. 409, 416 (S.D.N.Y. 2012); Cal. Sportfishing Prot. All. v. Diablo Grande, Inc.,
209 F. Supp. 2d 1059, 1066 (E.D. Cal. 2002). The “inquiry into the ‘indicia of
membership,’” or what Harvard terms the inquiry into whether SFFA is a bona fide
membership organization, “is necessary only when an organization is not a
‘traditional membership organization.’” Brady Campaign to Prevent Gun Violence v.
Salazar, 612 F. Supp. 2d 1, 29 (D.D.C. 2009).
These courts understand that this is not a trivial matter. Granting Harvard’s motion
would have profound ramifications. If this Court were to hold that Harvard is
entitled to this discovery, then every voluntary membership association could be
subjected to this same probing discovery into its operations in every case it brings
on behalf of its members. That means the NAACP, ACLU, Sierra Club, League of

Hon. Allison D. Burroughs
April 29, 2016
Page 7

Women Voters, Conservation Law Foundation, and the Brady Center, to name a few,
also would be forced to produce all “documents and information relating to [their]
operations, including recruitment and selection of members, the sources of [their]
funding, and how members participate in [their] organization[s].” Mot. at 1. That
discovery would include the names of, contact information for, and communication
with members, all member recruitment communications, all documents concerning
organizational governance and strategy, and all fundraising documents. That would
be unimaginable.
That result must be avoided. “[F]ederal courts are not to reach constitutional issues
where alternative grounds for resolution are available.” ACLU v. U.S. Conf. of Catholic
Bishops, 705 F.3d 44, 52 (1st Cir. 2013). “A court should interpret a statute to avoid
a serious constitutional flaw unless such a saving construction plainly contradicts
the clear intent of Congress.” United States v. Shields, 522 F. Supp. 2d 317, 336 (D.
Mass. 2007) (citing Zadvydas v. Davis, 533 U.S. 678, 689, 696-­‐97 (2001)). That duty
applies with equal force to discovery disputes, see, e.g., City of Greenville v. Syngenta
Crop Prot., Inc., 2011 WL 5118601, at *3 (C.D. Ill. Oct. 27, 2011), and makes this an
easy case. Not only would granting Harvard’s motion run contrary to the entire body
of judicial precedent on associational standing, it would, as explained below, violate
the First Amendment.
II.

The First Amendment Protects SFFA’s Membership Lists, Financial
Information, And Internal Communications.

Even if the materials Harvard seeks were somehow deemed relevant to SFFA’s
associational standing, the First Amendment would shield them from production.
The First Amendment protects the “freedom to engage in association for the
advancement of beliefs and ideas.” NAACP v. Alabama ex rel. Patterson, 357 U.S. 449,
460 (1958). That freedom “is entitled to no less protection than any other First
Amendment right.” Bates v. City of Little Rock, 361 U.S. 516, 528 (1960) (Black &
Douglas, JJ., concurring). As a result, once a litigant makes “a prima facie showing of
a first amendment infringement” of its associational rights, “the burden then shifts
to the [discovery proponent] to show both a compelling need for the material
sought and that there is no significantly less restrictive alternative for obtaining the
information.” United States v. Comley, 890 F.2d 539, 544 (1st Cir. 1989). Harvard’s
discovery requests must be denied under this standard. The significant threat to
SFFA’s associational freedom far outweighs any alleged need Harvard has for the
information it seeks.
A.

Granting Harvard’s invasive discovery requests would chill the
First Amendment associational rights of SFFA and its members.

There can be no dispute that Harvard’s discovery requests implicate SFFA’s First-­‐
Amendment rights. “[W]e have long understood as implicit in the right to engage in
activities protected by the First Amendment a corresponding right to associate with
others in pursuit of a wide variety of political, social, economic, educational,
religious, and cultural ends.” Roberts v. U.S. Jaycees, 468 U.S. 609, 622 (1984). To that

Hon. Allison D. Burroughs
April 29, 2016
Page 8

end, the Supreme Court, in NAACP v. Alabama, sustained the NAACP’s constitutional
challenge to a discovery order requiring production of a list of its members. The
Court “recognized the vital relationship between freedom to associate and privacy
in one’s associations,” and held that “[i]nviolability of privacy in group association
may in many circumstances be indispensable to preservation of freedom of
association, particularly where a group espouses dissident beliefs.” 357 U.S. at 462.
Finding that Alabama had not shown “a controlling justification for the deterrent
effect on the free enjoyment of the right to associate which disclosure of
membership lists is likely to have,” the Court reversed the order. Id. at 466.
Since NAACP v. Alabama, courts have routinely relied on the First Amendment to
prohibit invasive discovery requests like Harvard’s here. Courts routinely reject
attempts to gain access to rank-­‐and-­‐file membership lists. See, e.g., FEC v. Machinists
Non–Partisan Political League, 655 F.2d 380, 389, 397 (D.C. Cir. 1981); Int’l Action
Ctr. v. United States, 207 F.R.D. 1, 2-­‐3 (D.D.C. 2002); Sierra Club v. Union Elec. Co.,
2015 WL 9583394, at *4 (E.D. Mo. Dec. 31, 2015). Courts also reject attempts to
obtain: internal communications, see, e.g., Perry v. Schwarzenegger, 591 F.3d 1147,
1160 (9th Cir. 2009); Sexual Minorities of Uganda v. Lively, 2015 WL 4750931, at *2,
*4 (D. Mass. Aug. 10, 2015); information about financial contributions, see, e.g., Int’l
Action Ctr., 207 F.R.D. at *3; Tree of Life Christian Sch. v. City of Upper Arlington, 2012
WL 831918, at *4 (S.D. Ohio Mar. 12, 2012); and information concerning governance
and strategy, see, e.g., Perry, 591 F.3d at 1163-­‐65; Sierra Club, 2015 WL 9583394, at
*5. In other words, all of the discovery Harvard seeks squarely implicates the First
Amendment rights of SFFA and its members.
The issue, therefore, is not whether SFFA has associational rights under the First
Amendment. It does. The issue is whether granting Harvard’s motion may result in
“(1) harassment, membership withdrawal, or discouragement of new members, or
(2) other consequences which objectively suggest an impact on, or chilling of, the
members’ associational rights.” Perry, 591 F.3d at 1160. The prima facie showing
SFFA must make in this regard is “light”—“[a] party resisting discovery need not
make a showing of harm or other coercion[] but … must at least articulate some
resulting encroachment on their liberties.” New York State Nat’l Org. for Women v.
Terry, 886 F.2d 1339, 1355 (2d Cir. 1989); In re Motor Fuel Temperature Sales
Practices Litig., 641 F.3d 470, 492 (10th Cir. 2011) (Kelly, J., concurring) (“[T]he
burden for establishing this prima facie showing is not difficult when supported by
available evidence.”); Christ Covenant Church v. Town of Sw. Ranches, 2008 WL
2686860, at *6 (S.D. Fla. June 29, 2008) (“[I]n making a prima facie case of harm, the
burden is light in view of the crucial place speech and associational rights occupy
under our constitution.”).
This “light” burden is typically satisfied through submission of declarations or other
evidence suggesting “that enforcement of the disclosure requirement will result in
harassment of current members, a decline in new members, or other chilling of
associational rights.” Comley, 890 F.2d at 544. The burden also is satisfied by

Hon. Allison D. Burroughs
April 29, 2016
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submitting evidence that “the requested information would ... stifle full and frank
discussions within and among the trade associations.” In re Motor Fuel, 641 F.3d at
490. Declarations or letters from members describing their intention to curtail their
participation in the event of compelled disclosure are generally sufficient to meet
the association’s prima facie burden. See, e.g., Perry, 591 F.3d at 1163; AFL-­‐CIO v.
Fed. Election Comm'n, 333 F.3d 168, 176-­‐78 (D.C. Cir. 2003); Dole v. Serv. Emps.
Union, AFL-­‐CIO, Local 280, 950 F.2d 1456, 1460 (9th Cir. 1991). The appended
declarations clearly make out a prima facie case of a potential chilling effect.
First, SFFA members reasonably fear harassment, including even threats of physical
violence, if Harvard can compel disclosure of their names. SFFA’s President has been
called a white supremacist, regularly receives threatening or vile emails and text
messages, and has twice received death threats for his advocacy work against racial
preferences. Exhibit C, Declaration of Edward Blum (“Blum Decl.”) ¶ 22. An SFFA
Board member who is a named plaintiff in a similar case against the University of
Texas is being subjected to an online campaign of harassment. Exhibit D, Declaration
of Abigail Fisher (“Fisher Decl.”) ¶ 6. She has been called vile and sexist names, been
told to “kill yourself,” and been the subject of other threats of physical violence. Id.
¶¶ 4-­‐6. There is every indication that SFFA members will be subjected to the same if
their identities are disclosed. Indeed, opponents of this suit have already begun to
engage in these deplorable tactics. Blum Decl. ¶ 8. This type of harassment would
lead any reasonable person to reconsider their involvement in challenges to the use
of race in college admissions. Fisher Decl. ¶¶ 11-­‐12.
Second, if the names of rank-­‐and-­‐file members or donors are disclosed to Harvard, it
would likely deter participation in and contributions to SFFA. Disclosure and the
potential for retaliation by Harvard is a major concern of SFFA’s membership; the
assurance of confidentiality was essential to securing members’ participation and
contributions to the organization. Blum Decl. ¶¶ 9-­‐12, 20-­‐21; Exhibit E, Declaration
of John Doe (“John Doe Decl.”) ¶¶ 7, 9, 11. SFFA Members and donors similarly (and
justifiably) fear retaliation from other universities, graduate schools, prospective
employers, and current employers. Blum Decl. ¶¶ 15-­‐16; Fisher Decl. ¶¶ 8-­‐10; John
Doe Decl. ¶¶ 8-­‐9. The First Amendment privilege is designed to shield associations
from having to bear these heavy costs.
Third, the disclosure of internal communications is also likely to lead SFFA members
and leaders to substantially curtail their discussions or limit their participation.
Blum Decl. ¶¶ 12, 15, 17-­‐19; John Doe Decl. ¶ 11. Forcing SFFA to reveal to Harvard
its internal communications, which may include strategic planning involving this
and other litigation, is no different than forcing NAACP to reveal its communications
in its voter-­‐ID challenges. There is no doubt that the defendants in those cases
would be interested in discovering what is discussed at NAACP board meetings, the
nature of the communications between the NAACP and its standing members,
communications revealing how the NAACP identified members lacking voter-­‐ID, and

Hon. Allison D. Burroughs
April 29, 2016
Page 10

communications revealing which State the NAACP may next sue. But allowing such
discovery would obviously chill that organization’s associational rights. So too here.
Harvard’s responses are meritless. Harvard incorrectly argues that SFFA’s evidence
is “speculative” and “boilerplate.” Mot. at 6. To the contrary, the declarations draw
upon personal experience and are based on repeated and deplorable incidents of
harassment. They are precisely the kind of evidence sufficient to make out a prima
facie case. See, e.g., NAACP v. Alabama, 357 U.S. at 462 (possibility of “threat(s) of
physical coercion, and other manifestations of public hostility”); Bates, 361 U.S. at
524 (“harassment and threats of bodily harm”). Likewise, courts have routinely
credited statements that discovery would lead members to limit or withdraw their
participation. See, e.g., Perry, 591 F.3d at 1163; In re Motor Fuel, 641 F.3d at 490.
There is no doubt that Harvard’s far-­‐reaching requests for SFFA’s membership list,
its list of all financial contributions, and its non-­‐public communications infringe its
members’ right to freedom of association. Had Harvard genuinely engaged in the
meet-­‐and-­‐confer process, SFFA would have welcomed the chance to share this
evidence of harassment, which corroborates counsel’s representations. See Exhibit
B, SFFA Letter dated Apr. 15, 2016.1
Harvard also contends that the existence of the protective order eliminates any First
Amendment threat. Mot. at 6. Harvard is in no position to advance this argument.
Harvard has argued—often successfully—that the protective order is insufficient to
meet the generic privacy concerns it has raised in resisting discovery of anonymous
data that might identify a few individuals if it is misused or inadvertently disclosed.
See, e.g., Harvard Letter to Court dated Feb. 5, 2016, at 7 (arguing that disclosure
under the protective order “will inevitably—even if [the recipient] makes best
efforts to avoid it—leach into his public commentary and litigation activity”); Feb.
25, 2016 Conf. Tr. at 34:7-­‐23 (counsel for Harvard arguing against disclosure of
documents under the terms of protective order as nonetheless “an intrusion on the
student and applicant privacy”). Basic principles of fairness and estoppel preclude
Harvard from having it both ways. Alternative Sys. Concepts, Inc. v. Synopsys, Inc., 374
F.3d 23, 33 (1st Cir. 2004). If the protective order cannot solve Harvard’s derivative
concerns, it clearly cannot remedy SFFA’s First Amendment objections to disclosing
the actual identities of its members and contributors.
Regardless, Harvard’s argument fails on its own terms. SFFA’s submissions show
that the protective order is incapable of safeguarding the First Amendment rights of
SFFA and its members. It is difficult for many members to appreciate the practical
distinction between disclosure to Harvard’s attorneys and disclosure to Harvard
itself or to the public. Blum Decl. ¶ 13. Indeed, it is disclosure to Harvard and the
prospect of retaliation by Harvard that is most feared by SFFA’s members. Id. ¶¶ 9,
Harvard wrongly implies that SFFA is withholding responsive documents. Mot. at 3 n.4. To the
contrary, SFFA was willing to consider producing some additional documents, notwithstanding their
irrelevance, to avoid burdening the Court with unnecessary disputes. Harvard declined to pursue
that compromise and instead filed this Motion. See Exhibit A.
1

Hon. Allison D. Burroughs
April 29, 2016
Page 11

11, 14-­‐15; John Doe Decl. ¶ 9. Members’ communications, which may include
information about organizational strategy, also will be chilled by the knowledge that
opposing counsel is effectively listening in on these conversations and reviewing
documents of this nature. Blum Decl. ¶¶ 18-­‐19.
More fundamentally, SFFA’s leadership and members are right to conclude that the
protective order cannot guarantee that this sensitive information will not be made
public. After all, Harvard wants this discovery to challenge SFFA’s associational
standing. The “right of access” to judicial filings “extends to materials on which a
court relies in determining the litigants’ substantive rights.” In re Providence Journal
Co., 293 F.3d 1, 9-­‐10 (1st Cir. 2002). “Only the most compelling reasons can justify
non-­‐disclosure of judicial records.” FTC v. Standard Fin. Mgmt. Corp., 830 F.2d 404,
410 (1st Cir. 1987). Accordingly, “a protective order may not prevent disclosure of
information produced in discovery that is used to underpin a judicial decision.” City
of Greenville, 2011 WL 5118601, at *10. This Court thus has emphasized its
independent duty to scrutinize confidentiality designations at later stages of this
case. See Doc. 55 at 1. There can be no guarantee that depositions, exhibits, and
other discovery will remain sealed in this action. The distinct possibility of future
disclosure is enough to chill SFFA’s associational rights.
For these reasons, numerous courts have held that a protective order does not cure
the First Amendment violation. “Even assuming compliance with the protective
order … it is not possible to guard against all possibility of exposure.” Sexual
Minorities of Uganda, 2015 WL 4750931, at *4; see also Perry, 591 F.3d at 1164 (a
“protective order limiting dissemination of this information will ameliorate but
cannot eliminate these threatened harms”); Tree of Life Christian Sch., 2012 WL
831918, at *3 (“Even assuming that a protective order would prevent public
disclosure, revelation of the donor’s identity will still adversely impact the
associational rights of Plaintiff and its donor.”).
Finally, Harvard contends that SFFA’s mission to seek fairness in the admissions
process waives its members’ First Amendment rights—i.e., that its members “should
reasonably have expected that their identities would be disclosed during litigation
brought by SFFA.” Mot. at 7. That is wrong. Harvard may be correct as to those
members whom SFFA relies on for associational standing—information SFFA has
produced. But rank-­‐and-­‐file members and donors do not sacrifice their anonymity
by joining an association that advances its mission, in part (see Blum Decl. ¶¶ 3-­‐5),
through litigation. In NAACP v. Alabama, the Supreme Court recognized that one of
the NAACP’s express goals was to “promote equality of rights and eradicate caste or
race prejudice among the citizens of the United States” and “to advance the interest
of colored citizens . . . and to increase their opportunities for securing justice in the
courts[.]” 357 U.S. at 451 n.1; see Grandbouche v. Clancy, 825 F.2d 1463, 1467 (10th
Cir. 1987) (rejecting argument that “a plaintiff waives his First Amendment
privileges simply by bringing suit”). Nor could rank-­‐and-­‐file members and donors
have realistically anticipated such an unprecedented discovery request. Blum Decl.

Hon. Allison D. Burroughs
April 29, 2016
Page 12

¶ 10. Judicial precedent (and common sense) foreclose Harvard’s argument that an
organization’s initiation of litigation negates its associational rights.
Harvard’s reliance on the district court decisions in Nat’l Org. for Marriage v. McKee,
723 F. Supp. 2d 236, 241-­‐42 (D. Me. 2010), and Nat’l Org. for Women v. Sperry Rand
Corp. (“NOW”), 88 F.R.D. 272, 275 (D. Conn. 1980), is misplaced. McKee’s reliance on
the protective order to cure all First Amendment concerns is a distinctly minority
view that cannot be reconciled with the weight of authority. Regardless, SFFA’s
evidence of threats, harassment, and other chilling effects is qualitatively stronger.
See McKee, 723 F. Supp. 2d at 242-­‐43. The same was true for the NOW decision. 88
F.R.D. at 274-­‐75. Moreover, the NOW court limited the requested discovery to the
identity of those members who were alleging an actual injury. See id. at 274 (“The
defendant is not entitled to the requested information regarding any other member
of NOW, since no injury to other members has been alleged.”). Again, SFFA has
already produced that information. Requiring it to comply with Harvard’s requests
would violate the First Amendment.
B.

Harvard has not demonstrated any compelling need for the
information it seeks.

To meet its burden, Harvard must demonstrate “both a compelling need for the
material sought and that there is no significantly less restrictive alternative for
obtaining the information.” Comley, 890 F.2d at 544. The need must go above and
beyond the ordinary rules of discovery; Harvard “must show that the information
sought is highly relevant to the claims or defenses in the litigation—a more
demanding standard of relevance than that under Federal Rule of Civil Procedure
26(b)(1).” Perry, 591 F.3d at 1161 (emphasis added); Sexual Minorities of Uganda,
2015 WL 4750931, at *4 (“The requesting party’s ‘interest in disclosure [of the
requested information] will be relatively weak unless the information goes to “the
heart of the matter,” that is, unless it is crucial to the party’s case’”) (quoting Black
Panther Party v. Smith, 661 F.2d 1243, 1268 (D.C. Cir. 1981)).
Harvard cannot come close to making the required showing here. Its requests are
not even relevant to the standing inquiry, let alone crucial to it. See supra at 2-­‐4. As
the court in Sierra Club v. Union Elec. Co. recognized when facing a similar motion to
compel, “the identities and communications of non-­‐standing members are irrelevant
to any issue in this case.” 2015 WL 9583394, at *4; id. at *5 (holding that “discovery
relating to Plaintiff’s alleged motive for bringing this lawsuit ... is irrelevant to any
issue in this case”).
Harvard’s reliance on Natural Resources Defense Council, Inc. v. Illinois Power
Resources, LLC, 2015 WL 4910204 (C.D. Ill. Aug. 17, 2015), illustrates the flaw in its
position. In that case, the district court affirmed a magistrate judge’s order finding
that a carefully circumscribed set of communications between an organization and
its standing representatives were probative as to whether those members could
credibly allege an injury from the activity of the defendants. See id. at *4-­‐*5. But the

Hon. Allison D. Burroughs
April 29, 2016
Page 13

alleged injury in this case—Harvard’s unconstitutional use of race in the admissions
process—turns only on whether the individuals SFFA relies upon for standing have
applied, or intend to apply, to Harvard if it ceases using race in admissions. Gratz v.
Bollinger, 539 U.S. 244, 261-­‐62 (2003). Harvard’s sweeping requests for information
about SFFA’s membership, financial supporters, and internal communications have
nothing to say about that specific question.
But even if there were some theoretical relevance to the documents in question,
Harvard’s requests hardly “go to the heart” of any standing challenge. As explained
below, the basic information Harvard needs already has been produced in a manner
that does not implicate the First Amendment rights of its members.2
III.

Each Of Harvard’s Requests Should Be Denied.

To aid disposition of Harvard’s requests, SFFA provides the following individual
explanations as to why each request should be denied:
RFP No. 7 & Interrogatory No. 6
These requests seek detailed information about the identity of all past or present
members of SFFA—not just those members SFFA relies upon for standing. Harvard’s
demand for rank-­‐and-­‐file membership lists seeks irrelevant information and
violates the First Amendment. Indeed, this request is perhaps the most prototypical
example of one that threatens to chill freedom of association and should be denied.
RFP Nos. 8(b)-­‐(c), 8(f)
Although specific to standing members, the request for the details of any “financial
contributions paid by them to SFFA,” “all documents relating to their participation in
the litigation,” and “all communications with SFFA, its directors, officers, members,
or other representatives” are irrelevant to the inquiry because they do not address
these members’ injuries or their membership status. SFFA already has disclosed
their names, the dates they joined, and the information Harvard needs to confirm
their application status. That supplies any information “crucial” to or “at the heart
of” the standing inquiry; Harvard’s requests threaten to chill communications within
SFFA and should be denied.
RFP No. 10
This request for documents sufficient to show SFFA’s finances, including “bank
statements, financial statements, past and projected sources of revenue and
expenditures, forecasts, and budgets,” is irrelevant to associational standing and
threatens to chill SFFA’s activities. Moreover, SFFA already has provided Harvard
In addition to being irrelevant and unconstitutional, Harvard’s sweeping discovery requests are
unduly burdensome to the extent they require SFFA to search for, review, and produce all of its
internal communications, financial documents, and other information not previously compiled about
every one of its thousands of members.
2

Hon. Allison D. Burroughs
April 29, 2016
Page 14

with an interrogatory response describing its contributor base, including the
number of members (more than 500) who have contributed to it. Requiring more
would violate SFFA’s associational privacy for no compelling reason.
RFP No. 11
Harvard’s request for all “documents relating to SFFA’s identification, recruitment,
and selection of members and potential members,” seeks irrelevant information and
would violate the First Amendment. Notwithstanding (and without waiving) its
objections, SFFA has produced published communications to others regarding its
mission, goals, and the process for joining and contributing. SFFA also has described
its outreach efforts in an interrogatory response.
RFP Nos. 12 & 13
Harvard’s requests for “[a]ll communications or correspondence between SFFA, its
directors, officers, members, or other representatives and its donors or other
financial supporters relating to the Litigation,” and for “[a]ll communications or
correspondence among or between SFFA and its members or potential members, its
Board of Directors, POFR, or any other person relating to the Complaint or the
Litigation,” seek irrelevant information and would violate the First Amendment.
Further, these requests seek information that is not crucial to standing. In contrast,
requiring SFFA to comply with these requests will have an obviously chilling effect
on all of SFFA’s internal communications.
RFP No. 15
Finally, SFFA already has produced the primary documents responsive to Harvard’s
request for “documents relating to membership in SFFA, including . . . membership
policies; . . . all rights members may have to elect or remove SFFA’s leadership,
participate in its decision-­‐making, or otherwise control its conduct; and all
documents relating to SFFA members’ responsibilities, if any, to pay dues, render
services, or otherwise contribute to SFFA’s work.” Specifically, SFFA has produced
its Bylaws and other corporate organizational documents, which set forth members’
rights, and has described the extent of members’ participation in an interrogatory
response. No more is relevant to the associational standing inquiry, especially when
the disclosure of SFFA’s internal communications would chill members’ ability to
communicate within the organization.
Accordingly, Harvard’s motion should be denied in its entirety.
Respectfully submitted,
/s/ William S. Consovoy
William S. Consovoy
cc:

ECF recipients