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

Filing 218

REPLY to Response to 185 MOTION for Judgment on the Pleadings on Counts IV and VI filed by President and Fellows of Harvard College. (Waxman, Seth)

UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF MASSACHUSETTS
BOSTON DIVISION
STUDENTS FOR FAIR ADMISSIONS, INC.,
Plaintiff,

Civil Action No. 1:14-cv-14176-ADB
Motion for Leave to File Granted
November 3, 2016 [Dkt. 215]

v.
PRESIDENT AND FELLOWS OF HARVARD
COLLEGE (HARVARD CORPORATION),

Oral Argument Requested

Defendant.

REPLY MEMORANDUM IN SUPPORT OF DEFENDANT’S
MOTION FOR JUDGMENT ON THE PLEADINGS ON COUNTS IV AND VI

TABLE OF CONTENTS
ARGUMENT ...................................................................................................................................2
I.

The Court Can And Should Resolve Harvard’s Motion Now .............................................2

II.

Count IV Asserts A Nonexistent Legal Standard ................................................................3

III.

Harvard Is Entitled To Judgment On Count VI ...................................................................6

CONCLUSION ................................................................................................................................8

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TABLE OF AUTHORITIES
Page(s)
Cases
Barrett v. L.F.P., Inc.,
1986 WL 7698 (N.D. Ill. June 27, 1986) ...................................................................................3
City of Los Angeles v. Lyons,
461 U.S. 95 (1983) .....................................................................................................................2
Curran v. Cousins,
509 F.3d 36 (1st Cir. 2007) ........................................................................................................2
DeMayo v. Nugent,
517 F.3d 11 (1st Cir. 2008) ........................................................................................................2
Dysart v. Remington Rand,
31 F. Supp. 296 (D. Conn. 1939) ...............................................................................................3
Fisher v. University of Texas at Austin,
136 S. Ct. 2198 (2016) ...............................................................................................................7
Garcia-Catalan v. United States,
734 F.3d 100 (1st Cir. 2013) ......................................................................................................5
Gratz v. Bollinger,
539 U.S. 244 (2003) ...................................................................................................................5
Grutter v. Bollinger,
539 U.S. 306 (2003) ...........................................................................................................1, 4, 5
Kelly v. United States,
809 F. Supp. 2d 429 (E.D.N.C. 2011).................................................................................... 2-3
Motown Record Corp. v. George A. Hormel & Co.,
657 F. Supp. 1236 (C.D. Cal. 1987) ..........................................................................................2
Najas Realty, LLC v. Seekonk Water Dist.,
821 F.3d 134 (1st Cir. 2016) ......................................................................................................2
Picker Int’l, Inc. v. Mayo Found.,
6 F. Supp. 2d 685 (N.D. Ohio 1998)..........................................................................................2
Regents of University of California v. Bakke,
438 U.S. 265 (1978) .......................................................................................................1, 3, 4, 5
Rodriguez v. California Highway Patrol,
89 F. Supp. 2d 1131 (N.D. Cal. 2000) .......................................................................................8
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Sinclair Ref. Co. v. Jenkins Petroleum Process Co.,
289 U.S. 689 (1933) ...................................................................................................................8
Stark v. Hartt Transp. Sys., Inc.,
2013 WL 358266 (D. Me. Jan. 28, 2013) ..................................................................................8
Federal Rules of Civil Procedure
Fed. R. Civ. P. 8 ...............................................................................................................................5
Fed. R. Civ. P. 12 .............................................................................................................................5

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SFFA offers three objections to Harvard’s motion for judgment on the pleadings on
Counts IV and VI. None of those objections has merit.
First, SFFA argues that this Court has no power to grant judgment under Rule 12(c) on
fewer than all counts in the complaint. In fact, federal courts routinely address motions for
partial judgment on the pleadings, and the First Circuit has itself directed judgment on the
pleadings to be entered as to some but not all claims asserted.
Second, SFFA argues that Bakke and Grutter set forth two different standards for
consideration of race in admissions, and that Justice Powell’s opinion in Bakke approved only
the consideration of race to fill the “last few places” of a university’s incoming class. That
argument is simply wrong; Justice Powell endorsed the consideration of race as one of many
factors for “each applicant.” Regents of University of California v. Bakke, 438 U.S. 265, 317
(1978). SFFA’s contention that Grutter approved a form of race-conscious admissions
meaningfully distinct from the consideration of race contemplated by Bakke is contradicted by
the Grutter opinion, which described the Michigan Law School admissions policy as “like the
Harvard Plan.” Grutter v. Bollinger, 539 U.S. 306, 337 (2003). Count IV should not proceed
because it asserts a violation of a nonexistent legal standard.
Finally, SFFA concedes that this Court cannot grant it relief on Count VI, but nonetheless
asks the Court to deny (or delay) entry of judgment to Harvard. SFFA offers no principled
justification for such delay, instead delving into an irrelevant discussion of its desired injunction.
An injunction would be an appropriate remedy only if SFFA proved a legal violation, but SFFA
concededly cannot establish a legal violation under the theory asserted in Count VI. That count,
too, therefore fails as a matter of law.

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ARGUMENT
I.

The Court Can And Should Resolve Harvard’s Motion Now
SFFA contends that Harvard’s motion seeking judgment on the pleadings on Counts IV

and VI is procedurally improper, and that this Court lacks power under the Federal Rules to grant
Harvard’s motion. Opp. 8-9. SFFA’s argument cannot be squared with First Circuit decisions
recognizing the propriety of entering judgment on specific counts under Rule 12(c). See Najas
Realty, LLC v. Seekonk Water Dist., 821 F.3d 134, 140, 146 (1st Cir. 2016) (affirming district
court order granting judgment on the pleadings on fewer than all counts); Curran v. Cousins, 509
F.3d 36, 43 (1st Cir. 2007) (same). Indeed, the First Circuit has itself “render[ed] partial
judgment on the pleadings” under Rule 12(c) after reversing a district court’s failure to do so.
DeMayo v. Nugent, 517 F.3d 11, 19 (1st Cir. 2008). And the Supreme Court has recognized that
a motion for judgment on the pleadings may be directed to specific counts. City of Los Angeles
v. Lyons, 461 U.S. 95, 98-99 (1983) (noting that the district court “granted the City’s motion for
partial judgment on the pleadings”).
SFFA points to a few cases discussing whether “partial judgment on the pleadings” is
available under Rule 12(c), but none of those decisions actually holds that district courts lack
authority to render judgment on fewer than all courts of the complaint. One of SFFA’s cases
accurately notes that “[t]here are numerous cases [in] which . . . a trial court granted partial
judgment on the pleadings” and declines to decide the issue. Motown Record Corp. v. George A.
Hormel & Co., 657 F. Supp. 1236, 1238 (C.D. Cal. 1987); see also Picker Int’l, Inc. v. Mayo
Found., 6 F. Supp. 2d 685, 688 (N.D. Ohio 1998) (suggesting issue “is not clear”). Two other
cases merely hold that a plaintiff cannot use Rule 12(c) to strike specific defenses because the
plaintiff would not be entitled to judgment as long as other defenses remain; neither case
addressed whether a defendant may obtain judgment under Rule 12(c) on specific counts. Kelly
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v. United States, 809 F. Supp. 2d 429, 433 & n.2 (E.D.N.C. 2011); Dysart v. Remington Rand, 31
F. Supp. 296, 297 (D. Conn. 1939). And SFFA’s final case—a 31-year-old unpublished decision
from an out-of-circuit district court—merely noted the issue and then converted a motion for
judgment on the pleadings into a motion for summary judgment. Barrett v. L.F.P., Inc., 1986
WL 7698, at *3 (N.D. Ill. June 27, 1986).
SFFA points to no reason in logic or policy why district courts should lack such
authority. SFFA suggests that it would be more efficient for the Court to delay judgment on the
pleadings until the close of discovery. Opp. 9-10. But nowhere does SFFA identify any
potential efficiency gains. In fact, SFFA acknowledges (at 9) that Harvard’s challenge to Count
IV presents a pure question of law, and admits (at 13) that this Court cannot grant it relief on
Count VI as a matter of law. Discovery is therefore unnecessary to decide the merits of
Harvard’s motion for judgment on the pleadings, and entry of judgment for Harvard on both
counts is appropriate now.
II.

Count IV Asserts A Nonexistent Legal Standard
Harvard is entitled to judgment on Count IV because it fails to state a claim on which

relief may be granted, resting entirely on a purported legal standard that has no basis in
governing law. SFFA contends (at 11) that the Supreme Court has sanctioned “two types of
race-based admissions policies”—one in Bakke and one in Grutter—and that Count IV is
directed to a “Bakke-style admissions policy.” That argument misreads both Bakke and Grutter
and misinterprets the relationship between the two decisions.
Justice Powell’s opinion in Bakke did not adopt the “last few places” standard asserted by
SFFA. Rather, Justice Powell approved of a “flexible” admissions program that “consider[ed]
all pertinent elements of diversity in light of the particular qualifications of each applicant.” 438

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U.S. at 317 (emphasis added). The Harvard Plan appended to Justice Powell’s opinion explained
that only a small number of Harvard applicants would be admitted principally on the basis of
“extraordinary” intellectual potential, and that all other applicants would be reviewed on the
basis of many factors, including the applicants’ interests, talents, and backgrounds. See id. at
322. Although the Harvard Plan included examples of decisions that might be made by an
admissions committee “with only a few places left to fill,” id. at 324, those examples did not
purport to describe the entirety of the consideration of race under the Harvard Plan, nor did
Justice Powell characterize the examples as articulating an outer bound on the permissibility of
other plans. To the contrary, Justice Powell endorsed admissions policies that considered the
broad range of diversity offered by “each applicant.” Id. at 317.
Second, SFFA contends (at 11) that “[t]he Harvard Plan that Bakke endorsed was not the
same as the admissions policy that Grutter endorsed.” But nothing in Grutter draws the
distinction from Bakke that SFFA posits. Quite the contrary, the Court in Grutter expressly
viewed itself as embracing a plan “[l]ike the Harvard Plan,” explaining that “the Law School’s
admissions policy ‘is flexible enough to consider all pertinent elements of diversity in light of the
particular qualifications of each applicant, and to place them on the same footing for
consideration, although not necessarily according them the same weight.’” 539 U.S. at 337
(quoting Bakke, 438 U.S. at 317(emphasis added)); see also id. (“We also find that, like the
Harvard plan Justice Powell referenced in Bakke, the Law School’s race-conscious admissions
program adequately ensures that all factors that may contribute to student body diversity are
meaningfully considered alongside race in admissions decisions.” (emphasis added)). It is also

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noteworthy that none of the dissenters in Grutter suggested that Bakke was distinguishable from
Grutter on the basis that SFFA suggests. 1
The Supreme Court clearly did not view itself as embracing a second “type[] of racebased admissions polic[y]” in Grutter (Opp. 11). Rather, the Court reaffirmed Justice Powell’s
endorsement of student body diversity as a compelling interest in Bakke and the constitutionality
of admissions programs that consider race as one of many factors for each applicant in order to
advance that compelling interest. It is therefore unsurprising that SFFA identifies no authority
that recognizes or even suggests its theory that Bakke and Grutter should be viewed as distinct
decisions that approve of meaningfully different admissions policies.
SFFA’s demand (at 11-13) that Harvard disavow its use of “a Bakke-style admissions
policy” is thus misplaced. It rests on a false dichotomy that the Supreme Court has never
adopted. Moreover, SFFA’s attempt to shift the burden to Harvard to disavow certain facts is
unwarranted. It is SFFA’s obligation to allege facts that, if established, would constitute a legal
violation. Fed. R. Civ. P. 8(a)(2), 12(c), 12(h)(2); Garcia-Catalan v. United States, 734 F.3d
100, 102-103 (1st Cir. 2013). Because Count IV rests on a nonexistent legal standard, it fails to
allege any legal violation, and Harvard need not do anything more to entitle it to judgment on
this Count.

1

In the companion case to Grutter, Gratz v. Bollinger, 539 U.S. 244 (2003), the Court also
made no suggestion that Justice Powell had approved only plans that allowed consideration of
race to fill a few places. Gratz invalidated the University of Michigan’s undergraduate
admissions plan on the ground that it was insufficiently flexible, and the Gratz opinion includes
an extensive discussion of the Harvard Plan as described by Justice Powell in Bakke. See id. at
272-274. Nowhere in that discussion, however, does the Gratz Court suggest the distinction
advanced by SFFA. Had the Court thought that Bakke was limited in the way SFFA suggests,
that would have been an obvious place for the Court to make that point.
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III.

Harvard Is Entitled To Judgment On Count VI
SFFA concedes (at 13) that this Court cannot grant it relief on Count VI, but it

nonetheless asks that the Court delay entry of judgment until the close of discovery. SFFA’s
request is premised on the odd rationale (at 14) that “[g]ranting judgment on Count VI will not
alter discovery.” But even if that assertion were accurate (and it is not), it would provide no
basis to defer entry of judgment on a count on which SFFA cannot obtain relief.
SFFA argues that discovery will not be affected by now asserting (at 14) that it has no
interest in “the admissions policies of other universities.” But that supposed assurance conflicts
with the actual allegations in Count VI, which repeatedly refer to the manner in which “Harvard
[or] any other college or university uses race.” Compl. ¶ 498; id. (“Harvard, and many others,
are not pursuing this interest.”); id. ¶ 499 (“[T]here is overwhelming evidence that colleges and
universities will take advantage of any leeway.”); id. ¶ 501 (referring to “compelling evidence
that racial preferences impose significant costs on the university community, society in general,
and the very minority students these programs are purported to benefit”). Those allegations
plainly contemplate discovery that extends far beyond Harvard, potentially including both fact
discovery of third parties and expert discovery. 2 Harvard (and this Court) should not be saddled

2

SFFA has already made clear its interest in obtaining materials from other universities for
use in this litigation. In March 2015, SFFA wrote to the Presidents of all other Ivy League
universities to put them “on notice that undergraduate student admission files may be subject to
subpoena as” SFFA’s case against Harvard “proceeds to the discovery phase,” and to notify
them of a purported “legal duty to preserve all admissions files in [their] possession or control.”
See, e.g., Letter from Edward Blum to President Amy Gutmann, University of Pennsylvania, at 2
(March 19, 2015) (emphasis added), available at: http://samv91khoyt2i553a2t1s05iwpengine.netdna-ssl.com/wp-content/uploads/2015/03/PennLetter.pdf.

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with the burden of discovery (beyond the extensive discovery that will take place in this case in
any event) on a claim that SFFA concedes it cannot win. 3
SFFA’s lengthy detour (at 14-17) into the law of structural injunctions is wholly
irrelevant. SFFA concedes (at 16) that there is no reason to consider the possible type or scope
of an injunction “unless … Harvard is found to have violated Title VI.” Yet Count VI does not
provide a basis for establishing a violation of Title VI because it requires this Court to reverse
multiple Supreme Court precedents. SFFA suggests (at 15-16) that Harvard may be barred from
considering race at all as a remedy for being found to have intentionally discriminated against
Asian-Americans, in violation of other counts of the complaint. But even if that were correct,
the scope of relief that SFFA seeks on its other counts has no relevance to whether Harvard is
entitled to judgment on Count VI. Similarly, although SFFA implies (at 16) that it is entitled to
broad, additional discovery on the basis of the broad injunction it apparently seeks, that has no

3

In response to student-amici’s brief in support of Harvard’s motion (Dkt. 199), SFFA
suggests that it might be entitled to discovery on the so-called “mismatch theory” regardless of
this Court’s decision on Count VI because “the mismatch issue is principally relevant to Count
V” (Opp. 17 n.2). Aside from the fact that the “mismatch theory” is thoroughly discredited (see
generally Dkt. 199, at 2-5; Harvard Letter of July 8, 2016 (Dkt. 157-1), at 8), and that a
paraphrased version of it is asserted within the allegations of Count VI (Compl. ¶ 501 (referring
to “evidence that racial preferences impose significant costs on the university community,
society in general, and the very minority students these programs are purported to benefit”)), the
“mismatch theory” is not relevant to Count V. That count alleges that Harvard has “available
race-neutral alternatives capable of achieving student body diversity.” Compl. ¶ 478. The
“mismatch theory” does not bear on whether such alternatives are “available” nor whether the
alternatives would be “workable.” Fisher v. University of Texas at Austin, 136 S. Ct. 2198, 2208
(2016). Instead, “mismatch theory” focuses on whether student-body diversity is a worthy goal
in itself—a determination squarely within a university’s academic judgment and on which it is
afforded substantial deference. Id.
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bearing on whether Count VI should go forward. 4 Because Count VI does not present a viable
legal theory, the Court should grant Harvard judgment on Count VI.
CONCLUSION
The Court should grant Harvard judgment on the pleadings on Counts IV and VI of the
Complaint.
Respectfully submitted,
/s/ Seth P. Waxman
Seth P. Waxman (pro hac vice)
Paul R.Q. Wolfson (pro hac vice)
Daniel Winik (pro hac vice)
WILMER CUTLER PICKERING
HALE AND DORR LLP
1875 Pennsylvania Ave. NW
Washington, D.C. 20006
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]

4

None of SFFA’s cases suggests that it would be entitled to broad, additional discovery
related solely to the scope of a potential future injunction. First, SFFA relies on a case standing
for the basic proposition that a party is entitled to discovery on damages to prepare for trial.
Sinclair Ref. Co. v. Jenkins Petroleum Process Co., 289 U.S. 689, 693 (1933) (“The remedy of
discovery is as appropriate for proof of a plaintiff’s damages as it is for proof of other facts.”).
Second, SFFA cites a case denying a motion to dismiss a claim that required plaintiffs to prove
an “immediate threat of future injury” where discovery might allow the plaintiff to prove that
threat. Rodriguez v. California Highway Patrol, 89 F. Supp. 2d 1131, 1142 (N.D. Cal. 2000).
Count VI raises no such concern; SFFA cannot succeed on Count VI regardless of discovery, and
Rodriguez says nothing about discovery related to the scope of a potential injunction. Finally,
SFFA cites a case that permitted the defendant’s requested discovery of the plaintiff’s medical
records because the records were essential to both the claims of liability and relief—hardly
support for the proposition that SFFA would be entitled to broad discovery of Harvard based on
its desired injunction. Stark v. Hartt Transp. Sys., Inc., 2013 WL 358266, at *11 (D. Me. Jan.
28, 2013). None of those cases supports SFFA’s contention that it is entitled to substantial
additional discovery—beyond that relevant to the counts alleged in its complaint on which
Harvard has not sought judgment on the pleadings—solely on the basis of its desire for a broad
injunction based on an unproved legal violation.
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Debo P. Adegbile (pro hac vice)
WILMER CUTLER PICKERING
HALE AND DORR LLP
7 World Trade Center
250 Greenwich Street
New York, NY 10007
Tel: [phone]
Fax: [phone]
[e-mail]
William F. Lee (BBO #291960)
Felicia H. Ellsworth (BBO #665232)
WILMER CUTLER PICKERING
HALE AND DORR LLP
60 State Street
Boston, MA 02109
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Dated: November 4, 2016

Counsel for Defendant President and
Fellows of Harvard College

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CERTIFICATE OF SERVICE
I hereby certify that this document filed through the CM/ECF system will be sent
electronically to the registered participants as identified on the Notice of Electronic Filing.
/s/ Seth P. Waxman
Seth P. Waxman

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