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

Filing 172

Letter/request (non-motion) from SFFA to Judge Burroughs responding to Harvard's 7.27.16 Letter . (Strawbridge, Patrick)

Ten Post Office Square
8th Floor South PMB #706
Boston, MA 02109
617.227.0548
www.consovoymccarthy.com

July 28, 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 letter to respond to
Harvard’s uninvited July 27 submission to the Court attempting to re-argue various
points made at last week’s status conference, and to dictate the terms under which
SFFA may conduct discovery in this case.
To begin, Harvard’s letter is procedurally improper. Per the Court’s direction, the
parties conferred after the Supreme Court’s decision in Fisher v. University of Texas
at Austin, --- S. Ct. ---, No. 14-981 (June 23, 2016) (“Fisher II”). The parties then
submitted simultaneous letters of agreed-upon length to the Court outlining their
positions on post-Fisher discovery. One week after the July 20 conference—and
without any effort to meet and confer or even provide notice of its intent to do so—
Harvard has submitted yet another unsolicited letter seeking to shore up several
points it already has had two chances to address. This practice flouts the parties’
agreement and creates unnecessary and repetitive filings. SFFA requests that the
Court disregard Harvard’s submission.
To the extent the Court does consider the substance of Harvard’s letter, it should
reject its last-ditch attempt to dictate how SFFA litigates its own case and the scope
of discovery it is entitled to under the Federal Rules.
Harvard’s Revised Offer of 15 Custodians is Insufficient.
At the hearing, the Court indicated that Harvard’s proposal of eleven custodians was
insufficient and that SFFA’s proposal of 40 was excessive. It suggested splitting the
difference—which would be 25 custodians. That number is consistent with the offer
of 24 custodians UNC made in parallel litigation with SFFA, represents a reasonable
middle ground at this juncture, and permits sufficient discovery into the Complaint’s

Hon. Allison D. Burroughs
July 28, 2016
Page 2

allegations regarding Harvard’s use of race and history of invidious discrimination
against Asian Americans.1
Only now, after the Court rejected its proposal, has Harvard begrudgingly offered
four additional custodians, contending that “this would be more than sufficient to
complete the picture for SFFA.” Harvard Letter at 2. But SFFA is not seeking a
“picture” of Harvard’s admissions practices. It is seeking evidence of discrimination,
as well as the necessary information to support this Court’s required “close analysis”
of how Harvard’s race-based admissions system “works in practice.” Fisher v. Univ. of
Texas, 133 S. Ct. 2411, 2421 (2013) (emphasis added). Harvard’s proposal thus has
it backwards. “Broader discovery is warranted when a plaintiff’s claims are
premised on a pattern or practice of discrimination at the organization-wide level,
as opposed to specific allegations of discrimination made against an individual
supervisor.” Chen-Oster v. Goldman, Sachs & Co., 293 F.R.D. 557, 562 (S.D.N.Y. 2013).
With respect to non-admissions custodians, SFFA believes that the list should at
least include Lisa Coleman, Harvard’s Chief Diversity Officer since 2009, in light of
the Supreme Court’s recent instruction “to scrutinize the fairness of [the
university’s] admissions program; to assess whether changing demographics have
undermined the need for a race-conscious policy; and to identify the effects, both
positive and negative, of the affirmative-action measures [the university] deems
necessary.” Fisher II, Slip Op. at 19 (emphasis added). This same concern
underscores the need for at least anonymous, aggregate data regarding performance
of matriculating students. In short, denying this discovery will effectively preclude
SFFA from litigating an allegation set forth in the complaint: that it is not
“‘necessary’ for [Harvard] to use race to achieve the educational benefits of
diversity.” Fisher v. Univ. of Texas at Austin, 133 S. Ct. 2411, 2420 (2013).
The Court Correctly Observed That SFFA’s Request For Six Years Of Additional
Data Was Justified And Reasonable.
Despite Fisher II’s specific statement that three years’ worth of data was a “narrow”
sample that “might yield little insight,” and the centrality of data, studies, and other
material generated over the course of eight years, id. at 9, Harvard seeks to restrict
discovery of its admissions data on the theory that it has the right to determine
what is “sufficient” for SFFA’s needs. But relevance—not Harvard’s opinion as to
how SFFA should litigate its case—is what dictates the scope of discovery.
The data SFFA seeks is irrefutably relevant. As the Court explained at the hearing,
the data are necessary to establish patterns of both racial balancing and invidious
discrimination—claims that require information on the comparative quality of the
individual applicants. Moreover, the applicant-level data are essential to limit the
need for discovery of individual files.
SFFA is available any day during the next two weeks (other than August 8) for a conference in
chambers to discuss the disputed fields.
1

Hon. Allison D. Burroughs
July 28, 2016
Page 3

Harvard’s privacy objections are misplaced. SFFA has agreed to the redaction of
personally identifiable information, and Harvard already has produced two years
worth of this information. Other privacy concerns can be resolved through the
parties’ separate dispute over the hundreds of withheld fields—not by unreasonably
limiting the admissions data to the highest level of generality. The Court thus should
reject Harvard’s attempt to limit SFFA to only two more years of applicant-level
data. Six additional years is the appropriate number—as Fisher II underscores.
Harvard’s Attempt to Prevent Discovery Into Relevant Third-Party Witnesses
Is Unfounded and Premature.
In a footnote, and without any authority, Harvard makes the extraordinary request
that this Court “prohibit SFFA from directly contacting alumni interviewers without
this Court’s prior permission.” Harvard Letter at 2 n.1. First, the Federal Rules
provide for a process regarding third-party discovery, and there is no basis for
replacing those provisions with a sweeping prior restraint. Second, SFFA has
already presented evidence from Harvard’s own admissions director confirming
that some alumni interviewers have direct, relevant testimony regarding SFFA’s
claims. See SFFA Letter of July 8, 2016, at 6. Third, Harvard’s request could
conceivably prevent SFFA from contacting willing witnesses or even its own
members, if they happen to serve as alumni interviewers. Finally, the parties
previously agreed in their June 8 submissions that third-party discovery issues were
not yet ripe. Harvard’s back-door attempt to introduce the issue now is not made in
good faith.
At this stage, SFFA is seeking the identity of a reasonably limited subset of Harvard’s
alumni interviewers who are most likely to have discoverable information about the
extent to which race affects the admissions process. SFFA has never suggested
that any alumni interviewers should be custodians, and if it seeks formal
discovery from any of them, they and Harvard will then have the right to object and
the Court can evaluate the issue in the context of an actual dispute. If individual
interviewers do not object, then Harvard has no right to bar them from this case.
Harvard’s attempt to categorically exclude them from discovery underscores its
attempt to flout the Federal Rules and to engage in discovery only on its own terms.
Respectfully submitted,

cc:

ECF recipients

/s/ Patrick Strawbridge
Patrick Strawbridge