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

Filing 37

MEMORANDUM in Opposition re 30 MOTION to Intervene In Defense of Harvard's Admission Policy filed by Students for Fair Admissions, Inc.. (Consovoy, William)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
STUDENTS FOR FAIR ADMISSIONS, INC.
Plaintiff,
v.
PRESIDENT AND FELLOWS OF HARVARD
COLLEGE (HARVARD CORPORATION)
Defendant.

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Civil Action No: 1:14-cv-14176

PLAINTIFF’S MEMORANDUM IN OPPOSITION
TO MOTION TO INTERVENE
A group of minority Harvard students and prospective applicants to Harvard (“Movants”)
have filed a Motion to Intervene (“Motion”) in this matter under Federal Rule of Civil Procedure
24(a) as of right and, in the alternative, they seek permissive intervention under Federal Rule of
Civil Procedure 24(b). For the reasons set forth below, the Motion should be denied and Movants
instead should be allowed to participate as amicus curiae.
I.

INTRODUCTION
The use of racial preferences at Harvard and other elite universities is an issue of national

importance. Plaintiff thus has no desire to foreclose Movants from weighing in on the relevant
legal issues in this case and believes the Court should exercise its discretion to allow Movants to
participate in this case as amicus curiae. Doing so would allow Movants to be heard on the legal
and policy issues they wish to raise without impairing the parties’ ability to conduct discovery in
an expeditious fashion.
Intervention, however, is not justified. Intervention as of right is not warranted for several
reasons. First, Movants do not have a protectable legal interest in the continued use of racial

preferences. Unlike Plaintiff’s members, whose Title VI rights are jeopardized by Harvard’s
discriminatory policies, Movants would not suffer a cognizable injury if Harvard discontinued
the use of racial preferences, either voluntarily or in compliance with an order from this Court.
The Supreme Court has made clear that there is no legal right to preference on the basis of race.
Second, Harvard will adequately represent any conceivable interest Movants might possess.
Harvard and Movants share the same ultimate goal—the rejection of Plaintiff’s challenge—and
Harvard is vigorously defending this challenge to its admissions system. Third, Movants’ failure
to seek intervention for more than five months after the Complaint was filed and more than two
months after Harvard filed its Answer has prejudiced the parties. If intervention is granted, the
parties will not be able to complete discovery in the timeframe the Court established; indeed the
schedule would need to be extended by at least two months.
Permissive intervention should be denied for these same reasons. The Court enjoys broad
discretion under Rule 24(b) to assess whether permissive intervention is appropriate under the
circumstances of this case. Given Movants’ lack of a protectable interest, Harvard’s willingness
to strongly defend its admissions system, and the discovery complexities that Movants would
introduce, the Court should exercise its discretion to deny permissive intervention and allow
Movants instead to participate as amicus curiae. That is what the district court did in Fisher v.
University of Texas at Austin when confronted with a similar intervention motion. Following that
course allowed the district court in Fisher, and would allow the Court here, to efficiently manage
a complex case while allowing students to share their views on legal issues relevant to the case.
The Court should deny the Motion.

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II.

ARGUMENT
A.

Movants Are Not Entitled To Intervention As Of Right

“A party that desires to intervene in a civil action under Rule 24(a)(2) must satisfy four
conjunctive prerequisites: (1) a timely application for intervention; (2) a demonstrated interest
relating to the property or transaction that forms the basis of the ongoing action; (3) a satisfactory
showing that the disposition of the action threatens to create a practical impairment or
impediment to its ability to protect that interest; and (4) a satisfactory showing that existing
parties inadequately represent its interest.” Pub. Serv. Co. of New Hampshire v. Patch, 136 F.3d
197, 204 (1st Cir. 1998) (citation omitted). In this Circuit, “[a]n applicant for intervention as of
right must run the table and fulfill all four of these preconditions. The failure to satisfy any one
of them dooms intervention.” Id. (citation omitted). Here, Movants cannot meet any of the
preconditions to intervention as of right.
1.

Movants lack a “demonstrated interest” in this action.

Movants lack a “demonstrated interest” in this action and hence are unable to show that
denial of intervention threatens to impair their rights. “While the type of interest sufficient to
sustain intervention as of right is not amenable to precise and authoritative definition, a putative
intervenor must show at a bare minimum that it has a significantly protectable interest that is
direct, not contingent.” Id. at 205 (citations and internal quotations omitted); see also United
States v. Metro. Dist. Comm’n, 761 F. Supp. 206, 207 (D. Mass. 1991) (explaining “intervention
of right” is allowed only when “the putative intervenor has a direct, substantial and legally
protectable interest in the subject of the action and the disposition of that action may adversely
affect the ability to protect that interest”) (citing Travelers Indemnity Co. v. Dingwell, 884 F.2d
629, 638 (1st Cir. 1989)). Furthermore, “the intervenor’s claim must bear a sufficiently close
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relationship to the dispute between the original litigants.” Travelers Indem. Co., 884 F.2d at 638
(citations and quotations omitted)).
The Supreme Court recently held that Movants have no protectable interest—let alone a
significant and direct interest—in the continued use of racial preferences at Harvard or anywhere
else. See Schuette v. Coal. to Defend Affirmative Action, Integration & Immigrant Rights & Fight
for Equal. by Any Means Necessary (BAMN), 134 S. Ct. 1623 (2014). The Schuette plaintiffs,
who included “prospective applicants to Michigan public universities,” filed suit claiming that a
ballot initiative banning the use of racial preferences in admissions violated their legal rights. Id.
at 1629-30. The Court disagreed. While use of racial preferences in admissions is presumptively
unconstitutional and thus subject to strict scrutiny, a university’s decision to refrain from using
or to discontinue use of such racial preferences is never illegal. See id. at 1629-36. As the Court
explained, a university’s decision to shift from a race-based admissions system to a race-neutral
admissions system does not cause any potential applicant “specific injury of the kind” needed to
create a protectable legal interest. Id. at 1636. The Equal Protection Clause could never “forbid”
a university “from banning a practice that the Clause barely—and only provisionally—permits.”
Id. at 1639 (Scalia, J., concurring in the judgment). Indeed, even the dissent (which objected to
the particular way in which Michigan pursued the change) agreed that a university is perfectly
free to eliminate racial preferences in admissions without offending the Constitution. See id. at
1652-53, 1669-70 (Sotomayor, J., dissenting).
Thus, Schuette is fatal to Movants’ assertion of a significantly protectable legal interest.
Movants claim to have an interest “in race-conscious programs from which they benefit.”
Memorandum in Support of Motion to Intervene (“Memo”) at 10. Under Schuette, however,
Movants would lack any legal interest in objecting even if Harvard voluntarily decided to
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discontinue racial preferences. Movants’ legal rights are no greater because that same question
arises here in the context of a Title VI lawsuit seeking to compel Harvard to discontinue racial
preferences in admissions. Whether Harvard’s challenged conduct is ended voluntarily or by
court order, the end result would be a race-neutral admissions system at Harvard that would in no
way disparage the protectable legal rights of any applicant for undergraduate admission,
including Movants.
Finally, although whether Rule 24(a)(2) requires Movants to have Article III standing to
intervene as of right remains an open question, “in the ordinary case, an applicant who satisfies
the ‘interest’ requirement of the intervention rule is almost always going to have a sufficient
stake in the controversy to satisfy Article III as well.” Cotter v. Massachusetts Ass’n of Minority
Law Enforcement Officers, 219 F.3d 31, 33 (1st Cir. 2000). Movants clearly lack Article III
standing given that they could not sue Harvard for discontinuing the use of racial preferences in
admissions. That alone is a powerful signal that intervention as of right should be denied. But
Movants’ lack of injury provides an additional reason to deny intervention as of right, because
standing certainly would be required to continue the case in the event Harvard declined to appeal
an adverse judgment or settled the case. See Hollingsworth v. Perry, 133 S. Ct. 2652, 2661
(2013) (explaining that “standing ‘must be met by persons seeking appellate review, just as it
must be met by persons appearing in courts of first instance.’” (quoting Arizonans for Official
English v. Arizona, 520 U.S. 43, 64 (1997)). That Movants would lack appellate standing further
counsels against granting intervention as of right.
2.

Harvard adequately represents Movants’ interests.

Even assuming that Movants have a protectable interest in the continued use of racial
preferences, which they do not, Harvard will adequately represent that interest. As the First
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Circuit has explained, “in cases where the intervenor’s ultimate objective matches that of the
named party, a rebuttable presumption of adequate representation applies.” B. Fernandez &
Hnos., Inc. v. Kellogg USA, Inc., 440 F.3d 541, 546 (1st Cir. 2006) (citation omitted). That
presumption applies here. Movants’ ultimate objective in intervening is the rejection of SFFA’s
claim and the continued use of racial preferences in undergraduate admissions at Harvard. See
Memo at 12. Harvard shares that objective.
Movants claim a divergence of interests because they disagree with certain aspects of
Harvard’s admissions system, including legacy preferences, early action admissions, and reliance
on standardized tests. See id. at 13. But Movants have not sought intervention to challenge these
policies—nor could they. However they dress up their argument, Movants seek intervention to
defend Harvard’s use of race in admissions decisions. Any policy dispute between Movants and
Harvard is beyond the scope of this case. At most, Movants might offer additional “arguments,”
Memo at 14, for why, in their view, it is important to retain racial preferences in undergraduate
admissions, i.e., the ultimate objective they and Harvard share. But that is not a basis for
intervention as of right. See Little Rock Sch. Dist. v. N. Little Rock Sch. Dist., 378 F.3d 774, 780
(8th Cir. 2004) (“It is not sufficient that the party seeking intervention merely disagrees with the
litigation strategy or objectives of the party representing its interests.”). It was precisely these
types of arguments that led to the denial of intervention in Fisher v. University of Texas at
Austin. See Order, Case No. A-08-CA-263-SS, at *2 (W.D. Tex. Aug. 11, 2008) (Doc. 83)
(“Specifically, the Court finds movants’ interests adequately represented by the existing parties,
specifically the defendants, in this litigation. The Court also finds denial of the motions to
intervene to be in the best interest of an efficient resolution of this case.”). If there was adequacy
of representation in Fisher, there is adequacy of representation here.
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In fact, this is exactly the type of intervention application of which a district court should
be especially wary; “piling on parties” can “result in delay as parties and court expend resources
trying to overcome the centrifugal forces springing from intervention, and prejudice will take the
form not only of the extra cost but also of an increased risk of error.” Mass. School of Law at
Andover, Inc. v. United States, 118 F.3d 776, 782 (D.C. Cir. 1997). A district court that grants
party status to those who “only marginally satisfy the standing requirements” and are not “truly
aggrieved” will be “repeatedly required to respond to vague hypotheticals and speculation rather
than concrete and actual harms.” Ind. Democratic Party v. Rokita, 458 F. Supp. 2d 775, 825 n.75
(S.D. Ind. 2006).
Finally, Movants’ suggestion that Harvard is not sufficiently motivated to defend the use
of racial preferences in admissions, see Memo at 14, is untenable. Harvard has made clear it will
vigorously defend its admissions system. See Suit Alleges Race-Based Discrimination in
Harvard Admissions Practices, The Harvard Crimson, November 18, 2014 (“University General
Counsel Robert W. Iuliano … wrote in a statement that [Harvard’s] ‘admissions processes
remain fully compliant with all legal requirements and are essential to the pedagogical objectives
that underlie Harvard’s educational mission.’”), available at http://www.thecrimson.com/article/
2014/11/18/law-suit-admissions-alleged-discrimination. Furthermore, for decades Harvard has
been at the forefront in the use of racial preferences in admissions. See Complaint ¶¶ 125-174.
There is no basis to suppose that Harvard is going to suddenly and voluntarily abandon a practice
it deems essential to its institutional mission. And, given their lack of standing, Movants would
have no recourse even if they did.

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3.

Movants’ application is untimely.

Although this action was filed on November 18, 2014, Movants delayed seeking
intervention until April 29, 2015—more than five months later. Movants claim they could have
not sought intervention earlier because Harvard did not make “known its legal position” until
“the Joint Statement [was] filed on April 23, 2015.” Memo at 9. But Harvard made its position
regarding this lawsuit publicly known from the outset and certainly no later than when it filed its
Answer on February 18, 2015—more than two months before Movants sought intervention.
Movants were obligated “to proceed with reasonable dispatch to protect [their] interests.” R & G
Mortgage Corp. v. Fed. Home Loan Mortgage Corp., 584 F.3d 1, 9 (1st Cir. 2009). They failed
to do so.
More fundamentally, the existing parties will be “prejudiced by the failure of would-be
intervenors to act in a timely fashion.” Fiandaca v. Cunningham, 827 F.2d 825, 834 (1st Cir.
1987) (citation and quotations omitted)). Between February 18, 2015 and April 23, 2015, the
parties worked diligently to produce a discovery schedule that would lead to as expeditious a
resolution as possible of this complex case. Although the parties were unable to agree on the
length of fact discovery (a dispute the Court resolved by ordering a fact-discovery period of 11
months), they were able to agree on an expert-discovery period of approximately four and a half
months. Both of these discovery periods will need to be revisited and expanded if Movants are
permitted to intervene. Movants claim they will accept the established schedule. See Memo at 9.
But they have made equally clear that they plan to participate to some degree in fact discovery
and plan to participate extensively in expert discovery. As a result, the established discovery
schedule likely would need to be expanded by at least two months if Movants are granted
intervention to allow for extra time to review, conduct additional fact discovery (if necessary),
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rebut additional expert reports, and depose those additional experts. That is reason enough to
deny the request.
B.

Movants Should Be Allowed To Participate As Amicus Curiae Instead Of
Being Granted Permissive Intervention.

“The discretion afforded to the district court under Rule 24, substantial in any event, is
even broader when the issue is one of permissive intervention.” Puerto Rico Tel. Co. v. San Juan
Cable, LLC, 298 F.R.D. 28, 30 (D.P.R. 2014) (citing R & G Mortgage Corp., 584 F.3d at 11-12).
Permissive intervention should be denied here because, as explained above, the parties will be
prejudiced by Movants’ participation in discovery. See id. at 31 (“[A] timeliness inquiry is more
rigorous when a movant is seeking permissive intervention.”). Moreover, denying permissive
intervention will not harm Movants because they have no protectable interest at stake in this
litigation and Harvard will adequately protect any conceivable interest they do have. See 6 James
Wm. Moore et al., Moore’s Federal Practice ¶ 24.10[2][d] (2000) (“Courts are understandably
reluctant to grant permissive intervention to an applicant where interests are already fully
represented by one of the existing parties.”). In short, Movants should be denied permissive
intervention for the same reasons it should be denied intervention as of right.
Indeed, even “the existence of a common question of law or fact will not automatically
entitle a movant to intervene; the court has the discretion to determine the fairest and most
efficient method of handling the lawsuit.” Hopwood v. State, No. CIV. A-92-CA-563-SS, 1994
WL 242362, at *2 (W.D. Tex. Jan. 20, 1994) (citations omitted); see also id. at *1 (denying
intervention in part because “as a practical matter, the prospective intervenors and the
Defendants have the same ultimate objective in this lawsuit—the preservation of the admissions
policy and procedure currently used by the law school”). Here, the fairest and most efficient path
forward is to allow Movants to participate as amicus curiae. Movants are chiefly concerned with
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matters of law and policy; they wish to share with the Court “the perspective of underrepresented
minority students and give light to the aspects of Harvard’s admissions policy and history that
result in underrepresentation of highly qualified Native American, and Latino students.” Memo
at 16. That is precisely the kind of “perspective” that can be shared through an amicus brief. See,
e.g., Fisher, supra at *2 (“[A]t the conclusion of the trial on the merits in this case, each group of
proposed interveners will be permitted to file an amicus brief no more than twenty (20) pages in
length.”).
III.

CONCLUSION
For all of these reasons, Plaintiff respectfully requests that the Court deny the Movants’

Motion to Intervene.
Respectfully submitted,
STUDENTS FOR FAIR ADMISSIONS, INC.
By its attorneys,
Date: May 13, 2015

___/s Williams S. Consovoy____________
William S. Consovoy
Thomas R. McCarthy
J. Michael Connolly
CONSOVOY MCCARTHY PLLC
3033 Wilson Boulevard
Suite 700
Arlington, Virginia 22201
[phone]
[e-mail]
[e-mail]
[e-mail]
(admitted pro hac vice)
Paul M. Sanford BBO #566318
Benjamin C. Caldwell BBO #675061
BURNS & LEVINSON LLP
125 Summer Street
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Boston, MA 02110
[phone]
[e-mail]
[e-mail]

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CERTIFICATE OF SERVICE
I hereby certify that this document filed through the ECF system will be sent
electronically to the registered participants as identified on the Notice of Electronic Filing (NEF).

_/s William S. Consovoy_________
William S. Consovoy

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