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

Filing 294

Opposition re 272 First MOTION to Quash Plaintiff's Subpoena to BLS filed by Students for Fair Admissions, Inc.. (Attachments: # 1 Notice of Subpoena to Boston Latin School, # 2 Notice of Subpoena to Thomas Jefferson High School for Science and Technology, # 3 Notice of Subpoena to Stuyvesant High School, # 4 Notice of Subpoena to Monta Vista High School)(Strawbridge, Patrick)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

STUDENTS FOR FAIR ADMISSIONS, INC.,
Plaintiff,
v.

Civil Action No. 1:14-cv14176-ADB

PRESIDENT AND FELLOWS OF
HARVARD COLLEGE (HARVARD
CORPORATION),
Defendant.
PLAINTIFF’S OPPOSITION TO MOTION TO QUASH OF BOSTON LATIN SCHOOL
Pursuant to Rules 26 and 45 of the Federal Rules of Civil Procedure, Students for Fair
Admissions, Inc. (“SFFA”) respectfully submits this opposition to the motion to quash of Boston
Latin School (“BLS”). Before BLS filed its motion, SFFA conferred with BLS in an attempt to
avoid involving the Court, yet BLS declined even to negotiate with SFFA regarding the scope
and timing of the subpoena. This senseless attempt to obstruct discovery is legally untenable. As
this Court is aware, SFFA seeks a declaratory judgment that will protect BLS’s own students
against racial discrimination in Harvard’s admissions process. Instead of cooperating with SFFA,
BLS has chosen to pursue this meritless motions practice, making unsubstantiated burden
arguments and blanket assertions that BLS—one of the best high schools in the country with
many Asian-American students and one of Harvard’s top “feeder schools”—has no relevant
information. The Court should deny BLS’s motion to quash.

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BACKGROUND
In its complaint, SFFA alleges that Harvard is “employing an undergraduate admissions
policy that intentionally discriminates against Asian-American applicants on the basis of race or
ethnicity.” Doc. 1 at 101, ¶ 429. It does so by imposing a significantly higher bar for admissions
than it does for other racial groups and by enforcing a quota on the number of Asian-American
students it admits. Id. at 43-67, ¶¶ 200-287. Because Harvard has conceded that it considers race
in admissions decisions, this case turns on whether Harvard can satisfy strict scrutiny by proving
that its use of race is “narrowly tailored to further compelling governmental interests.” Fisher v.
Univ. of Texas at Austin, 133 S. Ct. 2411, 2419 (2013). Strict scrutiny is a “searching
examination” that requires the court to give “close analysis to the evidence of how the process
works in practice,” and so this case requires a complete record with evidence sufficient to
understand Harvard’s admissions decisions. Id. at 2421; see also Grenier v. Jonas, 2011 WL
1791093, at *2 (D. Vt. May 10, 2011) (“The great weight of the policy in favor of discovery in
civil rights actions supplements the normal presumption in favor of broad discovery.”) (quoting
Floyd v. City of New York, 739 F. Supp. 2d 376, 381 n.21 (S.D.N.Y. 2010)). Thus, SFFA is
entitled to extensive fact discovery into Harvard’s admissions practices.
One of the key points of discovery concerns the experiences of high school guidance
counselors and other school officials who are witnesses to Harvard’s discriminatory admissions
practices. As SFFA’s complaint alleges, many guidance counselors and advisors “recognize that
discrimination against Asian Americans occurs at elite universities such as Harvard and thus tell
Asian Americans to hide their identity, to emphasize personal characteristics that avoid Asian
stereotypes, and, in many cases, to lower their expectations and apply elsewhere.” Doc. 1 at 57,
¶ 252. For example, one high school guidance counselor advised a Korean student with near-

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perfect test scores not to apply to the Ivy League because “it was a long shot at best” and that he
should “lower his expectations to second- and third-tier schools.” Id. at 63-64, ¶¶ 276-77. Such
views are so widespread that even the Princeton Review advises as follows:
If you are an Asian American—or even if you simply have an Asian or Asiansounding surname—you need to be careful about what you do and don’t say in
your application…. You need to avoid being an Asian Joe Bloggs. Asian Joe
Bloggs is an Asian American applicant with a very high math SAT score, a low or
mediocre verbal SAT score, high math- or science-related SAT II scores, high
math and science grades, few credits in the humanities, few extracurricular
activities, an intended major in math or the sciences, and an ambition to be a
doctor, an engineer, or a research scientist. The more you sound like this person,
the more likely admissions officers will be to treat you as part of the ‘Asian
invasion’ and reject your application, or at the very least make you compete
against other Asian applicants with similar characteristics, rather than against the
applicant pool as a whole.
Id. at 58, ¶¶ 254-55.
In order to obtain discovery on these issues, SFFA served subpoenas on four high
schools: (1) Boston Latin School in Boston, Massachusetts; (2) Thomas Jefferson High School in
Alexandria, Virginia; (3) Stuyvesant High School in New York, New York; and (4) Monta Vista
High School in Cupertino, California. See Exs. A-D.1 Each subpoena included the same five
document requests, which seek evidence of racial discrimination by Harvard against the schools’
students. SFFA sent subpoenas to these schools because they are among the best high schools in
the nation, they regularly send their students to the top universities in the country, including
Harvard, and they enroll a student body with a significant population of Asian Americans. See
America’s Top High Schools 2016, Newsweek, https://goo.gl/gYvUha. For example, BLS is one
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To date, only one of the other subpoenaed high schools, Thomas Jefferson High School,
has contested its respective subpoena. See In re Subpoena to Testify at a Deposition in a Civil
Action Issued to Thomas Jefferson High School for Science & Technology, No. 17-mc-7 (E.D.
Va.). The Eastern District of Virginia recently transferred that action to this Court. See id., No.
1:17-mc-91107-NMG (D. Mass.). Both Stuyvesant High School and Monta Vista High School
have told SFFA that they will comply with the subpoena and submit to a deposition.
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of the top 30 high schools in the country, according to Newsweek, see id.; it has a student body
that is almost 30 percent Asian American, see U.S. News & World Report, Boston Latin School
(2016), https://goo.gl/3H7ORT; and it boasts of being “[i]n most years … the #1 feeder school to
the freshman class at Harvard University,” BLSA Announcement at 2 (Jan. 4, 2016),
https://goo.gl/w47qTz. Thus, BLS is likely to be a witness to discrimination by Harvard against
BLS’s students.
ARGUMENT
Under the Federal Rules of Civil Procedure, “[i]t is well-settled that the scope of
discovery under a Rule 45 subpoena is the same as that permitted under Rule 26.” Chamberlain
v. Farmington Sav. Bank, 2007 WL 2786421, at *1 (D. Conn. Sept. 25, 2007). Thus, a party
serving a subpoena on a nonparty 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). “Because ‘discovery itself is designed to help define and clarify the issues,’ the
limits set forth in Rule 26 must be ‘construed broadly to encompass any matter that bears on, or
that reasonably could lead to other matters that could bear on, any issue that is or may be in the
case.” Rockstar Consortium US LP v. Google, 2015 WL 5972422, at *4 (D. Mass. Oct. 14, 2015)
(quoting Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 353 (1978)). A request for discovery
“should be considered relevant if there is any possibility that the information sought may be
relevant to the subject matter of the action.” Id. (citation omitted).
Under Rule 45, a court may quash or modify a subpoena that: “(i) fails to allow a
reasonable time to comply; (ii) requires a person to comply beyond the geographical limits
specified in Rule 45(c); (iii) requires disclosure of privileged or other protected matter, if no
exception or waiver applies; or (iv) subjects a person to undue burden.” Fed. R. Civ. P.

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45(d)(3)(A). “The party seeking to quash the subpoena bears the burden of demonstrating that
the requirements of Rule 45 are satisfied.” Malibu Media, LLC v. John Does 1–15, 2012 WL
3089383, at *5 (E.D. Pa. July 30, 2012); Wright & Miller, Federal Practice & Procedure § 2459
(same). “‘In meeting this burden, such party may not rely on conclusory allegations or mere
statements in briefs.’” Ellis v. Arrowood Indem. Co., 2014 WL 4365273, at *6 (S.D. W. Va.
Sept. 2, 2014) (quoting Suggs v. Whitaker, 152 F.R.D. 501, 505 (M.D.N.C. 1993)). Rather, the
party must provide “specific demonstration of facts supporting the requested protection,”
preferably “through affidavits from knowledgeable persons.” Id. If a party fails to meet this
burden, the party’s motion will be denied. Id.
Here, BLS argues that SFFA’s subpoena should be quashed because it (1) places an
undue burden on BLS; (2) is an unwarranted “fishing expedition”; (3) seeks irrelevant and
duplicative documents; and (4) seeks confidential student records. See Memorandum in Support
of Motion to Quash (“Mem”) at 3-6. These arguments all fail.
I.

Compliance with the Subpoena Will Not Place an Undue Burden on BLS.
In a single paragraph, BLS summarily claims that responding to the subpoena would

place “an undue burden and expense” on BLS “by “divert[ing] a number of resources and
personnel … away from serving the children of the school.” Memorandum in Support of Motion
to Quash (“Mem.”) at 4-5. These conclusory statements are woefully insignificant. “To prevail
on the grounds of burdensomeness or breadth, the objecting party must do more to carry its
burden than make conclusory and unsubstantiated arguments.” In re C.R. Bard, Inc. Pelvic
Repair Sys. Prod. Liab. Litig., 2014 WL 1660386, at *3 (S.D. W. Va. Apr. 22, 2014). Courts will
consider an unduly burdensome objection only when the objecting party demonstrates how
discovery is “overly broad, burdensome, or oppressive, by submitting affidavits or offering
evidence which reveals the nature of the burden.” Convertino v. United States Dep’t of Justice,
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565 F. Supp. 2d 10, 14 (D.D.C. 2008); see also Bank of Mongolia v. M & P Global Fin. Servs.,
Inc., 258 F.R.D. 514, 519 (S.D. Fla. 2009) (same); Cory v. Aztec Steel Building, Inc., 225 F.R.D.
667, 672 (D. Kan. 2005) (same). BLS has submitted no affidavit or any other evidence of the
burdens it claims it will suffer.
Regardless, BLS’s claims of burden must fail. SFFA is seeking to conduct a single
deposition and obtain relevant documents that will require, at most, an electronic search of a
handful of custodians’ inboxes for key documents discussing discrimination by Harvard against
Asian-American applicants. It is implausible that responding to SFFA’s five, narrowly drawn
document requests will impose a significant financial or staffing burden on BLS. Moreover,
SFFA offered to negotiate the scope of the requests to minimize any burden on BLS.
II.

SFFA’s Subpoena Is Not a “Fishing Expedition.”
BLS argues that it should not have to produce documents responsive to SFFA’s requests

because SFFA’s subpoena is a “fishing expedition” and “there has been no allegation or proof of
a reasonable belief that a witness from BLS would have knowledge of the facts at issue” in this
case. Mem. at 5. But this is misguided. SFFA identified BLS because it is one of the best schools
in the country, has a substantial number of Asian-American students, and is—by its own
description—consistently “the #1 feeder school to the freshman class at Harvard University.”
Supra at 4. Indeed, according to James Montague, a counselor at BLS, “[t]here’s a joke that
Harvard was started a year after our school as a place for our students to go.” Meg P. Bernhard,
The Making of a Harvard Feeder School, The Harvard Crimson (Dec. 13, 2013),
https://goo.gl/xKMRmG. By BLS’s count, the school recently contributed 15 students to
Harvard’s current freshman class—“one of only a handful of schools to send 10 or more
students” to Harvard that year. Id.

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BLS thus is uniquely positioned as a witness to Harvard’s discriminatory admissions
practices. One of SFFA’s allegations is that high school guidance counselors—especially those
with large numbers of high-achieving Asian-American students—are fully aware that Harvard
discriminates against their best and brightest Asian-American students. To avoid such
discrimination, counselors may advise these students to hide their identity, to emphasize personal
characteristics that avoid Asian stereotypes, and in many cases, to lower their expectations and
apply elsewhere. See supra at 2-3. There is little doubt that BLS has relevant documents and
knowledge regarding these types of claims.
BLS also claims that SFFA’s requests are not relevant because “[t]here are no allegations
that BLS or its students were involved in any alleged discrimination or other improper acts.”
Mem. at 5. As an initial matter, BLS incorrectly asserts that there are no allegations of
discrimination against BLS students. SFFA has brought this complaint for declaratory and
injunctive relief in order to stop Harvard’s widespread discriminatory practices. The relief SFFA
seeks will directly benefit the students at BLS, including its Asian-American students who are
disadvantaged by Harvard’s race-based admissions process.
In any event, even if this lawsuit had no effect on BLS students, whether Harvard has
discriminated against other similarly situated students unquestionably is relevant to SFFA’s
claims. This type of “comparator evidence is relevant to prove that [Harvard] discriminated
against other [students] and therefore had a discriminatory motive, that there was a pattern or
practice of discrimination, or that [Harvard] implemented policies that encouraged or permitted
discrimination.” Paananen v. Cellco P’ship, 2009 WL 3327227, at *5 (W.D. Wash. Oct. 8,
2009); cf. Hollander v. Am. Cyanamid Co., 895 F.2d 80, 84 (2d Cir. 1990) (“[P]atterns of
discrimination against a group of employees increas[es] the likelihood that an employer’s offered

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explanation for an employment decision regarding a particular individual masks a discriminatory
motive.”); Spulak v. K Mart Corp., 894 F.2d 1150, 1156 (10th Cir. 1990) (same). In other words,
whether BLS guidance counselors and other officials have witnessed discrimination by Harvard
against its students on the basis of their race—students who are in the same situation as SFFA’s
members—is highly relevant to SFFA’s claims of discrimination.
III.

The Subpoena Seeks Highly Relevant Documents that Cannot Be Obtained
Elsewhere.
In addition to its broad assertion that the subpoena seeks irrelevant documents, BLS

challenges three of SFFA’s document requests as seeking irrelevant and duplicative information.
BLS contends that the documents sought in Request 2, which seeks “communications ... by or
among [BLS] employees or agents regarding Harvard’s use of race in the admissions process,”
should be obtained from Harvard because it is “the obvious best source” of this information.
Mem. at 3. But Harvard’s personnel will have no evidence of internal communications by BLS
about Harvard’s use of race in the admissions process. BLS likely possesses documents
responsive to this request, such as communications discussing Harvard’s admissions process and
its effect on Asian Americans, and internal analyses of its students’ likelihood of admission to
Harvard based on their race or ethnicity. BLS should be required to produce these documents.
BLS next contends that it should not have to produce documents under Request 1
(documents “prepared by [BLS] concerning the racial composition of applicants, admitted
persons, or enrollees to Harvard”) or Request 3 (communications “to, from, or copying Harvard
regarding the use of race in the admissions process”) because SFFA can obtain the documents
and information from other sources. Mem. at 3-4. As an initial matter, it is not necessarily true
that these documents are available from Harvard. Harvard would not possess, for example,
documents prepared by BLS analyzing the racial composition of applicants to Harvard. Nor is it
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certain that Harvard will produce the relevant communications between BLS and Harvard in
response to SFFA’s document requests. In any event, “[m]erely because [a party] may be able to
obtain certain information from other sources does not render the subpoena unnecessary.”
Ellora’s Cave Pub., Inc. v. Dear Author Media Network, LLC, 308 F.R.D. 160, 162 (N.D. Ohio
2015). Unless responding to these requests would impose an undue burden on BLS, there is no
basis for it to resist the subpoena. See Fed. R. Civ. P. 45(d)(3)(A).
Importantly, BLS does not challenge Requests 4 or 5 as irrelevant or duplicative. Nor
could it. Request 4 seeks documents “describing alleged discrimination by colleges, including …
Harvard, against persons of Asian descent from Boston Latin School … in the college
admissions process.” And Request 5 seeks documents concerning SFFA, Edward Blum (SFFA’s
president), or SFFA’s litigation against Harvard. These requests fit squarely within the federal
rules’ definition of “relevance” and unquestionably are not duplicative. See Rockstar Consortium
US LP, 2015 WL 5972422, at *4.2
IV.

Concerns About Student Privacy Do Not Justify Quashing the Subpoena.
BLS claims that the subpoena should be quashed because it “requests confidential student

record information and/or would create a chilling effect as a matter of public policy.” Mem. at 5.
As an initial matter, BLS appears to assert that it cannot comply with the subpoena because of
the Family Educational Rights and Privacy Act (“FERPA”). See Mem. at 6. But FERPA
authorizes the release of educational records if they are “furnished in compliance with judicial
To the extent that the Court accepts any of BLS’s arguments regarding burden or
relevance, the proper remedy is not to quash the subpoena, but to modify it so as to cure any
overbreadth. See Wiwa v. Royal Dutch Petroleum Co., 392 F.3d 812, 818 (5th Cir. 2004)
(“Generally, modification of a subpoena is preferable to quashing it outright.”); see, e.g., Fadalla
v. Life Auto. Prod., Inc., 258 F.R.D. 501, 507 (M.D. Fla. 2007). Indeed, SFFA has offered to
work with BLS to try to alleviate any concerns about the scope of the requests, but BLS refused
to negotiate and insisted on quashing the subpoena entirely.
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order, or pursuant to any lawfully issued subpoena.” 20 U.S.C. § 1232g(b)(2). That is obviously
the case here. Alternatively, because FERPA applies only to educational records with
“personally identifiable information,” id., it is well-settled that “[t]here is nothing in FERPA that
would prohibit [a school] from releasing education records that had all ‘personally identifiable
information’ redacted.” Ragusa v. Malverne Union Free Sch. Dist., 549 F. Supp. 2d 288, 293
(E.D.N.Y. 2008); see United States v. Miami Univ., 294 F.3d 797, 824 (6th Cir. 2002) (same).
BLS thus can avoid FERPA by simply redacting any “personally identifiable information.”
Moreover, there are a number of steps BLS can take to maintain the privacy of its
students and avoid any “chilling effect.” In addition to or instead of redacting “personally
identifiable information,” BLS can enter into the protective order in this case, which provides
ample protection of third-party information. Protective safeguards ensuring student privacy thus
are readily available. BLS cannot use the mere existence of such information to justify the
wholesale rejection of the subpoena.
CONCLUSION
For the foregoing reasons, the Court should deny BLS’s motion to quash.

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Respectfully submitted,
/s/ Patrick Strawbridge
Paul M. Sanford BBO
#566318
Benjamin C. Caldwell BBO
#67506
BURNS & LEVINSON LLP
One Citizens Plaza, Suite 1100
Providence, RI 02903
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]

William S. Consovoy
Thomas R. McCarthy
J. Michael Connolly
CONSOVOY MCCARTHY PARK PLLC
3033 Wilson Boulevard, Suite 700
Arlington, VA 22201
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
Patrick Strawbridge
BBO #678274
CONSOVOY MCCARTHY PARK PLLC
Ten Post Office Square
Boston, MA 02109
Tel: [phone]
[e-mail]

Dated: April 20, 2017

Counsel for Plaintiff SFFA

CERTIFICATE OF SERVICE
I hereby certify that this document filed through the CM/ECF system will be sent
electronically to all counsel of record via the CM/ECF system and that on the day of the filing a
copy will be emailed to counsel for non-party Boston Latin School (Jennifer N. Seich Kelly,
Esq., Boston Public Schools – Office of Legal Advisor, 2300 Washington Street, 4th Floor,
Roxbury, MA 02119, [e-mail]).
/s/ Patrick Strawbridge

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