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

Filing 220

REPLY to Response to 187 MOTION to Dismiss for Lack of Jurisdiction (Redacted) filed by President and Fellows of Harvard College. (Waxman, Seth) (Additional attachment(s) added on 11/8/2016: # 1 Sealed Reply Memorandum in Support of Defendant's Motion to Dismiss) (Montes, Mariliz).

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 to File Under Seal Granted
November 3, 2016 [Dkt. 217]

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

Oral Argument Requested

Defendant.

REPLY MEMORANDUM IN SUPPORT OF DEFENDANT’S
MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION

TABLE OF CONTENTS
ARGUMENT ................................................................................................................................1
I.

SFFA Cannot Avoid The Indicia-Of-Membership Standard Simply By Labeling
Itself A Voluntary Membership Organization ..................................................................1
A.
B.

II.

The Law Of The Case Doctrine Does Not Bar Harvard’s Argument ...................1
Courts Regularly Apply The Indicia-Of-Membership Standard To
Determine The Associational Standing Of Membership Organizations...............3

SFFA’s Members Do Not Exhibit The Indicia Of Membership That Would
Enable It To Sue On Their Behalf ....................................................................................6
A.

It Is Improper To Focus Solely On SFFA’s Standing Members ..........................6

B.

SFFA’s Members, Including Its Standing Members, Exercise No
Meaningful Control Over The Organization.........................................................8

CONCLUSION ...........................................................................................................................13

i

TABLE OF AUTHORITIES
Page(s)
American Canoe Association v. Murphy Farms, Inc.,
326 F.3d 505 (4th Cir. 2003) .....................................................................................................2
Brady Campaign to Prevent Gun Violence v. Salazar,
612 F. Supp. 2d 1 (D.D.C. 2009) ...............................................................................................5
California Sportfishing Protection Alliance v. Diablo Grande, Inc.,
209 F. Supp. 2d 1059 (E.D. Cal. 2002)......................................................................................5
Camel Hair & Cashmere Institute of America, Inc. v. Associated Dry Goods
Corp.,
799 F.2d 6 (1st Cir. 1986) ..........................................................................................................4
Christianson v. Colt Industries Operating Corp.,
486 U.S. 800 (1988) ...................................................................................................................2
Citizens Coal Council v. Matt Canestrale Contracting, Inc.,
40 F. Supp. 3d 632 (W.D. Pa. 2014) ..............................................................................7, 11, 13
Concerned Citizens Around Murphy v. Murphy Oil USA, Inc.,
686 F. Supp. 2d 663 (E.D. La. 2010) .....................................................................................3, 6
Disability Advocates, Inc. v. N.Y. Coalition for Quality Assisted Living, Inc.,
675 F.3d 149 (2d Cir. 2012).......................................................................................................5
Doe v. Stincer,
175 F.3d 879 (11th Cir. 1999) .................................................................................................12
Friends of the Earth, Inc. v. Chevron Chemical Co.,
129 F.3d 826 (5th Cir. 1997) .................................................................................................3, 6
Funeral Consumers Alliance Inc. v. Service Corporation International,
2010 WL 3817159 (S.D. Tex. Sept. 27, 2010) ..........................................................................4
Funeral Consumers Alliance, Inc. v. Service Corporation International,
695 F.3d 330 (5th Cir. 2012) .................................................................................................4, 5
Gay-Straight Alliance of Okeechobee High School v. School Board of
Okeechobee County,
477 F. Supp. 2d 1246 (S.D. Fla. 2007) ....................................................................................12
Harlow v. Children’s Hospital,
432 F.3d 50 (1st Cir. 2005) ........................................................................................................2

ii

Hunt v. Washington State Apple Advertising Commission,
432 U.S. 333 (1977) ......................................................................................................... passim
International Union, United Automobile, Aerospace & Agricultural Implement
Workers of America v. Brock,
477 U.S. 274 (1986) ...................................................................................................................7
Oregon Advocacy Center v. Mink,
322 F.3d 1101 (9th Cir. 2003) ...................................................................................1, 7, 12, 13
Package Shop, Inc. v. Anheuser-Busch, Inc.,
1984 WL 6618 (D.N.J. Sept. 25, 1984) .......................................................................3, 6, 8, 10
Perez-Ruiz v. Crespo-Guillen,
25 F.3d 40 (1st Cir. 1994) ..........................................................................................................2
Platten v. HG Bermuda Exempted Ltd.,
437 F.3d 118 (1st Cir. 2006) ......................................................................................................1
Playboy Enterprises, Inc. v. Public Service Commission of Puerto Rico,
906 F.2d 25 (1st Cir. 1990) ....................................................................................................3, 6
Sylvia’s Haven, Inc. v. Massachusetts Development Finance Agency,
397 F. Supp. 2d 202 (D. Mass. 2005) ................................................................................12, 13
U.S. Telecom Association v. FCC,
359 F.3d 554 (D.C. Cir. 2004) ...................................................................................................5
Washington Legal Foundation v. Leavitt,
477 F. Supp. 2d 202 (D.D.C. 2007) .......................................................................................3, 4

iii

SFFA’s suggestion that an organization can evade the indicia-of-membership standard set
forth in Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333 (1977), simply
by labeling its supporters as “members,” finds no support in the law. And SFFA’s argument that
it satisfies the indicia-of-membership standard is no more persuasive, not least because it
improperly limits the analysis to its handful of so-called “standing members.”
SFFA’s own cases have explained that the key question under Hunt is whether an
organization genuinely constitutes a gathering of members who have come together to pursue
their common goals. See, e.g., Oregon Advocacy Center v. Mink, 322 F.3d 1101, 1111 (9th Cir.
2003) (what “undergird[s] the concept of associational standing” is the need to ensure “that the
organization is sufficiently identified with and subject to the influence of those it seeks to
represent as to have a ‘personal stake in the outcome of the controversy’”). Because SFFA’s
members do not genuinely constitute the organization, SFFA lacks standing to represent them,
and this action should be dismissed for lack of jurisdiction.
ARGUMENT
I.

SFFA Cannot Avoid The Indicia-Of-Membership Standard Simply By Labeling
Itself A Voluntary Membership Organization
A.

The Law Of The Case Doctrine Does Not Bar Harvard’s Argument

SFFA first suggests (at 7-8) that statements by the Court at the April 29, 2016 status
conference constitute law of the case. That is incorrect for several reasons.
First, the Court was not deciding at that status conference whether SFFA had standing to
sue; it was rendering an oral ruling on a discovery dispute. Even as to that discovery ruling, the
Court invited Harvard to file a motion for reconsideration (which remains pending). An oral
ruling on a discovery dispute does not bar the Court from later examining the fundamental
threshold question whether the Court has jurisdiction to adjudicate the case. See Platten v. HG

1

Bermuda Exempted Ltd., 437 F.3d 118, 129 n.8 (1st Cir. 2006) (law of the case “does not apply
to tentative or preliminary rulings”); see also American Canoe Ass’n v. Murphy Farms, Inc., 326
F.3d 505, 515-516 (4th Cir. 2003) (district court erred in applying law-of-the-case doctrine to an
earlier decision holding that plaintiffs had standing, because “the value of correctness in the
subject matter jurisdiction context overrides at least some of the procedural bars in place to
protect the values of finality and judicial economy”).
Second, even if the Court’s statements at the hearing might be construed as a ruling that
SFFA need not satisfy the indicia-of-membership standard to establish its standing, such
“[i]nterlocutory” rulings “remain open to trial court reconsideration, and do not constitute the
law of the case.” Perez-Ruiz v. Crespo-Guillen, 25 F.3d 40, 42 (1st Cir. 1994). The First Circuit
stated that principle in a decision on which SFFA relies: A district court may “review prior
interlocutory orders as long as that review is not an abuse of discretion.” Harlow v. Children’s
Hosp., 432 F.3d 50, 55 (1st Cir. 2005). 1
Even if the Court’s statements at the April 29 hearing were determinative of Harvard’s
motion to dismiss, it would certainly be appropriate for the Court to reexamine them. SFFA
waited until the morning of that hearing to file what the Court described as a “dense,” “singlespaced, 14-page document” addressing the applicability of the indicia-of-membership standard.
Dkt. 152 at 6:11-12, 24:18-19. Harvard barely had an opportunity to review that filing, let alone
reply to it, before the hearing. This is hardly the full airing that is due to the foundational
question of Article III jurisdiction raised by Harvard’s motion. And SFFA recognizes (at 8) that
courts may reconsider any prior ruling that was “clearly erroneous and would work a manifest

1

The law-of-the-case discussion in Christianson v. Colt Industries Operating Corp., 486
U.S. 800, 815-818 (1988), on which SFFA also relies, refers to decidedly non-interlocutory
rulings—decisions by courts of appeals that they lacked jurisdiction over a particular case.
2

injustice” if adhered to. Allowing SFFA to evade the indicia-of-membership standard required
to establish this Court’s jurisdiction easily satisfies that standard.
B.

Courts Regularly Apply The Indicia-Of-Membership Standard To
Determine The Associational Standing Of Membership Organizations

As Harvard’s motion to dismiss explains, numerous courts have looked beyond the
“membership” label in analyzing whether organizations could sue on their members’ behalf. See
Mem. 9-11 (discussing Playboy Enters., Inc. v. Pub. Serv. Comm’n of Puerto Rico, 906 F.2d 25,
35 (1st Cir. 1990); Friends of the Earth, Inc. v. Chevron Chem. Co., 129 F.3d 826, 827, 829 (5th
Cir. 1997); Concerned Citizens Around Murphy v. Murphy Oil USA, Inc., 686 F. Supp. 2d 663,
675-676 (E.D. La. 2010); Washington Legal Found. v. Leavitt, 477 F. Supp. 2d 202, 209-210
(D.D.C. 2007); and Package Shop, Inc. v. Anheuser-Busch, Inc., No. 83-cv-513, 1984 WL 6618,
at *40-41 (D.N.J. Sept. 25, 1984)). SFFA attempts to distinguish those cases (at 9-10) on the
theory that the membership organizations involved were somehow not “traditional membership
organizations” (emphasis added). But SFFA is attempting to fashion a distinction that does not
exist in the law of associational standing, which marks no difference between “traditional” and
“non-traditional” membership organizations. The Supreme Court used the phrase “traditional
voluntary membership organization” in Hunt only in distinguishing a non-membership
organization from membership organizations. 432 U.S. at 342, 344. And by any standard, the
organizations in the cases cited in our opening brief were “traditional.” For example, the
plaintiffs in Package Shop and Playboy Enterprises were trade associations—a type of
organization that Hunt itself describes as a “traditional” type of “voluntary membership
organization,” 432 U.S. at 342—and the plaintiffs in Friends of the Earth and Concerned
Citizens Around Murphy were environmental advocacy groups, another traditional type of

3

membership organization. Yet the courts scrutinized them to see if they truly represented the
interests of their constituents. 2
SFFA does not explain why it is any more “traditional” than the organizations in those
cases or why it should be immune from such scrutiny if the organizations in these cases were not.
SFFA is not a group whose members have “pool[ed] their interests, activities and capital under a
name and form that will identify collective interests,” Camel Hair & Cashmere Inst. of Am., Inc.
v. Associated Dry Goods Corp., 799 F.2d 6, 11 (1st Cir. 1986). Rather, it is the alter ego of its
founder, Edward Blum, who created it as a vehicle to bring this case and the parallel action
against the University of North Carolina.
Aside from its misplaced efforts to distinguish Harvard’s authorities, SFFA tries to
counter them with five cases of its own. But those cases are no more availing. One of them—
Funeral Consumers Alliance, Inc. v. Service Corporation International, 695 F.3d 330 (5th Cir.
2012)—supports Harvard, to the extent it is relevant at all. The associational plaintiff in that
case was “a non-profit consumer rights organization … that claim[ed] 400,000 individuals as
members.” Id. at 335. The district court held that the organization lacked standing to assert a
Clayton Act claim for its members, because it lacked sufficient mechanisms of representation to
ensure that it would speak on their behalf. Funeral Consumers All. Inc. v. Serv. Corp. Int’l, 2010
WL 3817159, at *7 (S.D. Tex. Sept. 27, 2010) (finding “no indication that a representative
procedure [was] in place” for “Affiliate” members, that “Supporting members” had “no voting
2

SFFA argues (at 9-10) that the Washington Legal Foundation was not a “traditional
membership organization[]” because it “was a ‘public interest law firm’ that tried to sue on
behalf of three individuals who were subscribers to its mailing list”—but SFFA is itself a vehicle
for litigation suing on behalf of members who are little more than subscribers to its mailing list
(Mem. 1, 3-6). SFFA cites the fact that the members on whose behalf WLF brought suit were
“not members as defined by WLF’s Articles of Incorporation,” 477 F. Supp. 2d at 208, but fails
to appreciate the irony of that argument, given that SFFA’s own Articles of Incorporation state
that it “shall have no members.” Ex. B, Articles of Incorporation of SFFA, at ¶ 2.
4

rights,” and that “[p]ersons who [held] membership as a ‘Friend’ [were] not permitted to
participate in the governance of the [organization]”), aff’d in part, rev’d in part on other
grounds, 695 F.3d 330 (5th Cir. 2012). On appeal, the Fifth Circuit declined to “determine
whether” the plaintiff organization had “members as defined by Hunt” only because the
organization failed to meet a different element of the Hunt standard. 695 F.3d at 344 n.9.
The other appellate decisions on which SFFA relies—Disability Advocates, Inc. v. N.Y.
Coalition for Quality Assisted Living, Inc., 675 F.3d 149 (2d Cir. 2012), and U.S. Telecom
Association v. FCC, 359 F.3d 554 (D.C. Cir. 2004)—are also inapposite. Both decisions applied
the indicia-of-membership standard to organizations without members. See 675 F.3d at 152-153,
157 (“not a membership organization”); 359 F.3d at 593-594 (“not [a] voluntary membership
organization[]”). Those cases presented no occasion to decide whether an organization can
evade the indicia-of-membership standard simply by labeling its supporters as members.
Finally, SFFA relies on two decisions—California Sportfishing Protection Alliance v.
Diablo Grande, Inc., 209 F. Supp. 2d 1059 (E.D. Cal. 2002), and Brady Campaign to Prevent
Gun Violence v. Salazar, 612 F. Supp. 2d 1 (D.D.C. 2009)—that are inapposite for reasons
Harvard has previously explained, in that neither involved an organization whose members
exercised as little control as SFFA’s members do. Mem. at 11 n.3; Dkt. 154 at 4-5. 3 To the
extent those decisions contain anything more than dicta about whether the indicia-of-

3

In California Sportfishing, the plaintiff’s members were required to pay annual dues, and
there was no indication the plaintiff did not genuinely embody the members’ collective interests.
209 F. Supp. 2d at 1066. Brady Campaign relied on the fact that the organization’s members had
“‘voting rights as prescribed in [its] By-Laws.’” 612 F. Supp. 2d at 29. Although SFFA’s
members have
rights—
—those rights are illusory for the reasons explained in Harvard’s motion to dismiss (at 4-5,
11-13).
5

membership standard applies to organizations like SFFA, they are inconsistent with the weight of
precedent and should not be followed.
II.

SFFA’s Members Do Not Exhibit The Indicia Of Membership That Would Enable
It To Sue On Their Behalf
SFFA argues alternatively that it satisfies the indicia-of-membership standard. That

argument is misplaced for two reasons. First, SFFA makes no effort to explain how members
other than its “standing members” reflect the necessary indicia of membership. That is a fatal
deficiency, as courts apply the indicia-of-membership standard by considering an organization’s
overall membership policies and practices, not just the attributes of a select few so-called
standing members. Second, even if the analysis were limited to SFFA’s standing members,
SFFA fails to explain how those members can actually wield influence over the organization’s
direction.
A.

It Is Improper To Focus Solely On SFFA’s Standing Members

SFFA claims to satisfy the indicia-of-membership standard almost entirely on the basis of
its

purported “standing members” (Opp. 14-18)—
. That approach speaks volumes about

SFFA’s ability to argue that the rest of its “

members” (Opp. 1) actually control,

influence, or participate in the organization. It is also legally unsound. In applying the indiciaof-membership standard to membership organizations, courts do not cabin their inquiry as SFFA
suggests; rather, they evaluate the membership policies and practices of the organization as a
whole. See, e.g., Friends of the Earth, 129 F.3d at 829; Playboy Enters., 906 F.2d at 35;
Concerned Citizens Around Murphy, 686 F. Supp. 2d at 675-677; Package Shop, 1984 WL 6618,
at *39-41.

6

SFFA relies (at 13) on two cases—Citizens Coal Council v. Matt Canestrale Contracting,
Inc., 40 F. Supp. 3d 632 (W.D. Pa. 2014), and Oregon Advocacy Center v. Mink, 322 F.3d 1101
(9th Cir. 2003)—for the proposition that the rights and roles of members other than those
designated as standing members are irrelevant. Neither case so holds. The court in Citizens
Coal Council examined whether the plaintiff’s “standing witnesses” bore the requisite indicia of
membership only because the defendant’s standing challenge specifically focused on those
individuals. 4 Harvard has never limited its standing challenge in that fashion. And when the
Ninth Circuit stated that an organization must be “sufficiently identified with and subject to the
influence of those it seeks to represent,” 322 F.3d at 111, the court did not use the phrase “those
it seeks to represent” to refer only to the specific individuals on whom an organization bases its
standing. To the contrary, the paragraph containing that statement examined the membership
policies and practices of the organization as a whole. Id. 5
SFFA’s rule would obviate the whole theory of associational standing, which is that it is a
device available only to the kinds of organizations in which individuals genuinely come together
to “create an effective vehicle for vindicating interests that they share with others,” International
4

See 40 F. Supp. 3d at 637 (“[Defendant] argues that [Plaintiff] cannot establish standing
through its Standing Witnesses,” on the theory that “[n]one of them possesses the necessary
indicia of membership … since none have the right to vote, elect the governing body, serve on
the board of directors … , or otherwise control[] the actions of the officers or delegates to the
Coordinating Committee whom they did not elect.”); see also Defendant’s Memorandum in
Support of Motion to Dismiss Based on Lack of Standing, 2014 WL 2738495 (W.D. Pa. May 28,
2014) (“Dismissal is warranted because … [Plaintiff’s] standing witness members do not possess
the necessary ‘indicia of membership[.]’”).
5

SFFA also relies on Harvard’s supposed “admi[ssion] that the key issue is whether SFFA
may ‘stand in the[] shoes’ of those it seeks to represent in court.” Opp. 13-14 (quoting Mem. 8).
What Harvard actually said in the quoted sentence was that an organization’s ability to satisfy
the Hunt factors other than the indicia-of-membership standard “does not on its own satisfy the
threshold requirement that an organization must genuinely embody the collective interests of its
members to be permitted to stand in their shoes in federal court.” That argument does not
remotely resemble an “admi[ssion]” that the only members of an organization who must exhibit
indicia of membership are those on whose individual standing the organization relies.
7

Union, United Auto., Aerospace & Agr. Implement Workers of Am. v. Brock, 477 U.S. 274, 290
(1986). Under SFFA’s theory, any corporate entity or unincorporated association could sue on
behalf of a single person as long as it was controlled by that person. That is not what
associational standing is meant for. The crux of the indicia-of-membership standard set forth in
Hunt is not whether an entity is controlled by the single person or handful of people on whose
behalf it is suing but “whether the organization, in fact, does have a true membership.” Package
Shop, 1984 WL 6618, at *39 (emphasis added). Unless the organization has a membership—a
whole body of people who bear indicia of membership—then it is not the kind of organization
that can invoke associational standing consistent with Article III.
B.

SFFA’s Members, Including Its Standing Members, Exercise No Meaningful
Control Over The Organization

SFFA’s submission suffers from yet another deficiency: SFFA has not shown that even
its standing members exhibit any meaningful degree of influence or control over the
organization.
As Harvard’s motion explains (at 11-16), even the record before the Court makes clear
that SFFA’s membership does not fulfill the indicia described in Hunt. Neither SFFA’s standing
members nor its other members actually control its leadership;

. 6 Mem. 4, 11-12. And neither SFFA’s standing members nor its other members
play a meaningful role in funding the organization or participating in its day-to-day operations.

6

SFFA points out (at 19-20) that certain membership organizations whose standing has
been upheld have “self-perpetuating boards,” but none of the cases on which SFFA relies for that
proposition actually addressed the nature of the organizations’ board structure.
8

Mem. 13-15. 7 SFFA claims (at 13) that “[n]early

” of its “nearly

” members—

—“have contributed financially … to support its mission,” and that they contributed
“more than

in 2015.” But those assertions hardly show that SFFA is in any meaningful

sense funded by its members. Nearly

of SFFA’s members have contributed no money at

all, and
(see Mot. Ex. E, 8 Virginia Charitable Organization Remittance Form, Form 102, at
SFFA-Harvard 0001932 (Statement of Profit & Loss)). What is more, because
(Ex. A, Transcript of
Deposition of Edward J. Blum as Rule 30(b)(6) Designee of SFFA, Supplemental Excerpts
(“Supp. Blum Tr.”), at 152:2-8), it is impossible to know
.9
7

SFFA’s argument relies heavily on the “uncontroverted” declarations of its standing
members, which use rote language copied and pasted from one member’s declaration to another.
Opp. 14; see id. at 13-19; see, e.g., Opp. Exs. D, L-N, P-T. But those declarations stop well short
of establishing that the standing members (let alone the rest of SFFA’s members) actually play
any meaningful role in directing the organization. At any rate, the declarations are
“uncontroverted” only because SFFA has blocked Harvard from inquiring into SFFA’s actual
relationship with its standing members—for example, by instructing its Rule 30(b)(6) witness
not to answer numerous questions at his deposition, such as questions about the extent to which
SFFA’s members participated in the decision to initiate this litigation. See Dkt. 168 (letter
regarding improper 30(b)(6) deposition instructions); Ex. A, Transcript of Deposition of Edward
J. Blum as Rule 30(b)(6) Designee of SFFA, Supplemental Exhibits, at 114:4-20, 117:21-118:15,
118:17-21. The Court should reject SFFA’s suggestion (at 1 n.1) that it be permitted “to submit
additional evidence and/or seek an evidentiary hearing to the extent that the Court believes SFFA
cannot establish standing based on the present record.” Having resisted Harvard’s efforts to
learn basic facts about how it operates, SFFA should bear any adverse consequences.
8

“Ex.” citations refer to exhibits to the Declaration of Felicia H. Ellsworth (Dkt. 219)
accompanying this reply memorandum. “Mot. Ex.” citations refer to exhibits to the Declaration
of Felicia H. Ellsworth (Dkt. 188) accompanying the memorandum in support of Harvard’s
motion. “Opp. Ex.” citations refer to exhibits to the Declaration of William S. Consovoy (Dkt.
205) accompanying SFFA’s opposition.
9

SFFA hyperbolically asserts (at 12) that Harvard is trying to conduct a “full-blown audit”
and that, if accepted, Harvard’s theory would produce such “audit[s]” of other organizations.
But many of the organizations SFFA cites are, unlike SFFA, transparent about the rights of their
9

their collective views and protect their collective interests.” Id. at 640 (internal quotation marks
omitted).
SFFA’s other authorities are equally unhelpful to it. Both Oregon Advocacy Center v.
Mink, 322 F.3d 1101 (9th Cir. 2003), and Doe v. Stincer, 175 F.3d 879 (11th Cir. 1999), involved
the same unusual type of organization—an office created under the Protection and Advocacy for
Mentally Ill Individuals Act (PAMII), 42 U.S.C. § 10801 et seq., to advocate for people with
disabilities. The courts concluded that such offices could sue on behalf of the individuals whose
interests they were statutorily created to represent. E.g., Oregon Advocacy Center, 322 F.3d at
1110 (recognizing that the office’s “constituents” were “the functional equivalent of members”
given the office’s “statutory mission and focus under PAMII”). Even in that unusual context,
however, the courts relied on the fact that there were means by which the organizations’
constituents could influence them. For example, the Ninth Circuit observed that “[u]nder
PAMII, the governing board of an organization like [the Oregon Advocacy Center] ‘shall be
composed of … members … who broadly represent or are knowledgeable about the needs of the
clients served by the system,’ … includ[ing] ‘individuals who have received or are receiving
mental health services and family members of such individuals.’” Id. at 1111. Moreover,
PAMII-authorized advocacy offices had to “‘establish an advisory council’” that included
recipients of “‘mental health services’” and their family members. Id. at 1111-1112; see also
Doe, 175 F.3d at 886. 12

12

The decision in Gay-Straight Alliance of Okeechobee High School v. School Board of
Okeechobee County, 477 F. Supp. 2d 1246 (S.D. Fla. 2007), never mentions the indicia-ofmembership standard. And SFFA’s inference from that case—that “[i]f an ‘unincorporated,
voluntary association of [high school] students’ meets the demands of associational standing,
then” so must SFFA (Opp. 13)—is backwards; unlike SFFA, which is the archetype of a topdown organization, an alliance of high school students genuinely reflects the collective interests
of its members. And although the court in Sylvia’s Haven, Inc. v. Massachusetts Development
12

Much of SFFA’s argument relies on the fact that courts have upheld the standing of some
organizations that did not satisfy one or another of the factors that Hunt referred to as indicia of
membership—for example, organizations that were not funded by their members or
organizations whose members lacked voting rights. But Harvard has never suggested that an
organization must satisfy every one of Hunt’s criteria to possess associational standing. The
indicia of membership are not a mandatory checklist. They are a set of factors for the Court to
consider in answering what SFFA’s own cases have identified as the ultimate question: Does the
organization genuinely constitute a gathering of members who have come together to pursue
their common goals? See Oregon Advocacy Center, 322 F.3d at 1111 (what “undergird[s] the
concept of associational standing” is the need to ensure “that the organization is sufficiently
identified with and subject to the influence of those it seeks to represent as to have a ‘personal
stake in the outcome of the controversy’”); Citizens Coal Council, 40 F. Supp. 3d at 640 (“[T]he
purpose of the Hunt inquiry is to determine whether an organization provides its members with
the means to express their collective views and protect their collective interests.” (internal
quotation marks omitted)). The totality of SFFA’s circumstances leaves only one possible
answer to that question in this case: SFFA is a mouthpiece for Mr. Blum, not for its members,
and it therefore cannot sue on their behalf.
CONCLUSION
The action should be dismissed for lack of subject-matter jurisdiction.

Finance Agency, 397 F. Supp. 2d 202 (D. Mass. 2005), suggested in dicta that an organization
serving homeless mothers and children could satisfy the indicia-of-membership standard, the
decision turned on the fact that the organization did not meet the separate requirement of
showing that any of its constituents would have individual standing. Id. at 207-208. Moreover,
while SFFA argues (at 18) that the members of that organization “provided no funding to the
organization,” the court expressly observed that the organization (which ran a transitional
residence) “require[d] all residents to share in the expenses related to the residence.” Id. at 207.
13

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]
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]

Dated: November 4, 2016

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]
Counsel for Defendant President and
Fellows of Harvard College

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CERTIFICATE OF SERVICE
I hereby certify that this document will be sent by email to the registered participants as
identified on the Notice of Electronic Filing.
/s/ Seth P. Waxman
Seth P. Waxman

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