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

Filing 39

MOTION for Leave to File REPLY MEMORANDUM IN SUPPORT OF THE MOTION TO INTERVENE by M. B., K. C., Sarah Cole, Y. D., G. E., A. G., I. G., R. H., J. L., Fadhal Moore, Arjini Kumari Nawal, R. S., Itzel Vasquez-Rodriguez, Keyanna Wigglesworth. (Attachments: # 1 Exhibit Proposed Reply)(Hall, Rahsaan)

UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF MASSACHUSETTS
BOSTON DIVISION

STUDENTS FOR FAIR ADMISSIONS,
INC,
Plaintiff,
v.
PRESIDENT AND FELLOWS OF
HARVARD COLLEGE (HARVARD
CORPORATION),

Civil Action No. 1:14-cv-14176-ADB

Defendant.

PROPOSED REPLY MEMORANDUM IN SUPPORT OF
PROPOSED DEFENDANT-INTERVENORS’ MOTION TO INTERVENE

SFFA and Harvard (the “Parties”) each have filed responses to the motion to intervene in
which they argue that Movants fail to satisfy the requirements for intervention as of right. These
arguments, however, misstate the applicable legal standards under Rule 24(a)(2). Movants’
interests in the outcome of this case are both sufficient to justify intervention and distinct from
Harvard’s. Like the defendant-intervenors in Grutter v. Bollinger, 188 F.3d 394 (6th Cir. 1999),
the only Court of Appeals decision squarely on point, Movants fulfill all four requirements for
intervention as of right. The Parties’ suggestion that Movants participate as amici is therefore
inapposite: “The right to file a brief as amicus curiae is no substitute for the right to intervene as
a party in the action under Rule 24(a)(2).” Coalition of Arizona/New Mexico Counties for Stable
Econ. Growth v. Dep’t of Interior, 100 F.3d 837, 844 (10th Cir. 1996).

When the Court applies the correct legal tests for the requirements of Rule 24(a), it will
arrive at the same conclusion as did the Sixth Circuit in Grutter: the students whose lives and
educational prospects will be most affected by Harvard’s right to consider race in admissions
must be allowed to intervene to defend that right. Grutter, 188 F.3d at 401. In contrast, the
district court’s order denying intervention in Fisher did not explain its determination that the
defendant university would adequately represent the student-movants’ interests. See Order,
Fisher v. University of Texas at Austin, Case No. 08-00263, at *2 (W.D. Tex. Aug. 11, 2008)
(Docket No. 83). Accepting that Movants meet all four requirements for intervention by right,
the Court must grant their motion and allow them to participate as full parties.
Even if Movants could not satisfy, as they do, all four requirements for intervention as of
right, Movants should be granted leave to intervene permissively based on their unique ability to
develop issues relevant to the Court’s decision at every stage of the litigation. Participation by
Movants merely as amici would deprive the Court of the full benefit of Movants’ contribution to
the record and would deprive Movants of the ability to protect their interests. The Parties’
arguments to the contrary are unavailing.
I.

MOVANTS ARE ENTITLED TO INTERVENTION AS OF RIGHT.
In arguing that Movants do not satisfy all four requirements for intervention as of right,

the Parties rely upon incorrect legal tests. First, Plaintiff overstates the “interest” requirement,
raising the irrelevant contention that Movants could not independently sue Harvard over its
admissions policy. Second, both Plaintiff and Harvard misstate the test for inadequacy of
representation. Third, Plaintiff is wrong to suggest that the timeliness of Movants’ motion is
measured by the time or expense they would add to discovery.

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A.

Movants’ Interests Are Protectable Within the Meaning of Rule 24(a)(2) and
Movants Could Establish Article III Standing If It Were Necessary.

Plaintiff incorrectly suggests that Rule 24(a)(2) requires that the outcome of the litigation
must impair Movants’ “legal rights”. See Pl.’s Opp. 3-5. But there is no requirement that the
“interest” required by Rule 24(a)(2) be a legal right that a would-be intervenor could vindicate in
a separate lawsuit. In fact, the advisory committee’s note on the rule indicates just the opposite:
“If an absentee would be substantially affected in a practical sense by the determination made in
an action, he should, as a general rule, be entitled to intervene”. Fed. R. Civ. P. 24 advisory
committee’s note; see also Natural Res. Def. Council, Inc. v. U.S. Nuclear Regulatory Comm’n,
578 F.2d 1341, 1345 (10th Cir. 1978) (noting that Rule 24 “refers to impairment ‘as a practical
matter.’ Thus, the court is not limited to consequences of a strictly legal nature.”).
In fact, the First Circuit, in Conservation Law Foundation of New England, Inc. v.
Mosbacher, 966 F.2d 39 (1st Cir. 1992), rejected the “legal interest” argument Plaintiff proffers
here.

In that case, the plaintiffs were conservation groups that had sued the government

requesting the pertinent agency to alter its regulations. The plaintiffs opposed the motion to
intervene of several regulated entities that sought to defend the status quo, arguing that the
movants’ mere “economic” interests were not “legally cognizable.” Id. at 41. The First Circuit
rejected that argument, holding that the regulated entities must be allowed to intervene because
they “are the real targets of the suit and are the subjects of the regulatory plan. Changes in the
rules will affect the proposed intervenors’ business, both immediately and in the future.” Id. at
43 (citing Natural Res. Def. Council, Inc., 578 F.2d 1341); see also Pub. Serv. Co. of New
Hampshire v. Patch, 136 F.3d 197, 205-06 (1st Cir. 1998) (recognizing potential economic harm
to a putative intervenor as an interest).

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In this case, the applicant-Movants are the real targets of Plaintiff’s suit because they are
the prospective beneficiaries of Harvard’s current admissions plan. The changes to that plan that
Plaintiff seeks will adversely affect Movants’ undeniable interests in being admitted to Harvard.
Because Movants do not need to demonstrate that they could vindicate a legal interest by
suing one of the parties to the litigation, the Supreme Court’s decision in Schuette v. Coal. to
Defend Affirmative Action, Integration & Immigrant Rights & Fight for Equal. By Any Means
Necessary (BAMN), 134 S. Ct. 1623 (2014), on which Plaintiff heavily relies, is irrelevant.
Movants concede they have no constitutional right to have their race considered by Harvard. But
Movants are entitled to protect their interests in Harvard’s right to consider race in admissions
regardless of whether Harvard is legally compelled to do so. The injunctive relief Plaintiff seeks
would have a direct, immediate, and harmful effect upon Movants by preventing Harvard from
considering race in admissions. Because Harvard’s right to consider race is inextricably linked
to benefits that will accrue to Movants, Movants have satisfied the “interest” test of Fed. R. Civ.
P. 24(a)(2).
Plaintiff is also incorrect that Movants could not appeal an adverse determination in this
case for lack of Article III standing. See Pl.’s Opp. 5. The First Circuit has reserved judgment,
as has the Supreme Court, on whether Article III standing is required of defendant-intervenors.
See Cotter v. Mass. Ass’n of Minority Law Enforcement Officers, 219 F.3d 31, 33-34 (1st Cir.
2000) (citing Diamond v. Charles, 476 U.S. 54 (1986)); cf. City of Lockhart v. United States, 460
U.S. 125, 130 (1983) (noting probable jurisdiction where defendant-intervenor continued to
defend the case on appeal after the original defendant decided not to). But, even assuming that
Article III standing would become necessary if Harvard settled or acquiesced in an adverse
judgment and Movants appealed, the First Circuit has held that the concrete interest that gives

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rise to a right to intervene is sufficient to confer standing on a defendant-intervenor. In Cotter, in
response to the appellee’s challenge to the standing of defendant-intervenor to appeal a ruling
that had impaired its interests, the court explained that “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.” Id. at 33-34. Similarly, in
Daggett v. Comm’n on Governmental Ethics & Election Practices, 172 F.3d 104 (1st Cir. 1999),
the First Circuit held that the “rather modest requirements of Article III” were amply satisfied by
defendant-intervenors’ “concrete stake in the outcome” of the case even though they were mere
beneficiaries of a government policy that the plaintiffs there sought to change. Id. at 109-11.
Likewise here, Movants have a concrete stake in the outcome of the case as actual or prospective
beneficiaries of Harvard’s admissions policy, and could therefore appeal any judgment adverse
to them.
B.

Harvard May Not Adequately Represent Movants’ Interests.

Both Parties argue that Harvard will adequately represent underrepresented minority
students. See Pl.’s Opp. 5-7; Harvard’s Response 3-7. Plaintiff does so despite its contention
that Harvard has a long history of failing to act in the best interest of minority students. See
Compl. ¶¶ 35-124. But neither Party allows for the possibility—which is all that Rule 24(a)(2)
requires—that Harvard “may” fail to represent zealously the student beneficiaries of the
admissions policy in lieu of the myriad other constituents that Harvard must serve. See Trbovich
v. United Mine Workers of Am., 404 U.S. 528, 538 n.10 (1972) (“the burden of making that
showing should be treated as minimal”); accord Patch, 136 F.3d at 207.
Both Parties also argue that, because Movants seek to vindicate Harvard’s right to
consider race in admissions, Movants have the same “ultimate objective” or “goals” as Harvard.
See Pl.’s Opp. 6; Harvard’s Response 1. Both rely on the First Circuit’s statement that “in cases
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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), accord Daggett, 172 F.3d at 111. But this statement
cannot bear the weight that the Parties place upon it. Indeed, in Fernandez itself, the court held
that the putative intervenor in that case satisfied the “minimal” showing required, and stated that
the district court focused too narrowly on the solely “illustrative” grounds of “adversity of
interest, collusion, or nonfeasance” for rebutting the adequate representation presumption. Id.
The court stressed the case-specific nature of this inquiry and discouraged district courts from
identifying only a limited number of “cubbyholes” for inadequate representation claims. Id.
(citing Maine v. United States Fish & Wildlife Serv., 262 F.3d 13, 19 (1st Cir. 2001) and Mass.
Food Assoc. v. Mass. Alcohol Beverages Control Comm’n, 197 F.3d 560, 567 n.5 (1st Cir.
1999)). The court also cited the reasoning of the First Circuit in another case that “‘without a
perfect identify of interests, a court must be very cautious in concluding that a litigant will serve
as a proxy for an absent party.’” Id. at 547 (quoting Tell v. Trustees of Dartmouth Coll., 145
F.3d 417, 419 (1st Cir. 1998)).
Movants do not have the same ultimate objective as Harvard: their interests diverge from
Harvard’s in at least two ways. First, applicant-Movants seek to protect their interests not only
in a diverse student body, but also in the individual consideration that may be afforded to their
own applications under Harvard’s current admissions policy. An admissions process that puts
increased emphasis on the SAT or that fails to recognize the contributions of students who have
diverse racial and ethnic backgrounds would impair applicant-Movants’ access to Harvard.
Second, although Harvard seeks to protect its right to use race in admissions, Harvard has several
policies—such as Early Action, legacy admissions, and heavy reliance on SAT scores—that it

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must defend notwithstanding their adverse impact on minorities. Movants are the only party that
will argue that one justification for considering race and ethnicity in college admissions is to
remedy the adverse impact that legacy preferences, Early Action, and heavy reliance on the SAT
have on the diversity profile of the admitted class. These differences in priorities were sufficient
reason to find a risk of inadequate representation in Grutter. See 188 F.3d at 401 (intervenors
had “legitimate and reasonable concerns about whether the University will present particular
defenses of the contested race-conscious admissions policies” including “the disparate impact of
some current admissions criteria”).
Harvard urges the Court not to follow Grutter because Sixth Circuit precedent “defin[es]
a far less stringent standard for inadequacy than the First Circuit has applied.” Harvard’s
Response 7 n.3. The lenient standard for inadequacy of representation, however, does not vary
by circuit. The Supreme Court has stated definitively that the burden is “minimal.” Trbovich,
404 U.S. at 538 n.10. Moreover, both the First Circuit and Sixth Circuit look to whether the
named party would advance each of the movant’s potential arguments. See B. Fernandez &
Hnos., Inc., 440 F.3d at 546 (that proposed intervenors would emphasize different arguments
was a reason to find a risk of inadequate representation); Grutter, 188 F.3d at 401.

In

Fernandez, the First Circuit cited to Daggett to explain that because of the proposed intervenor’s
“direct interest” in preventing injunctive relief for the Plaintiff, “the burden . . . to show
inadequate representation is lighter than if its interest was ‘thin and widely shared.’”

B.

Fernandez & Hnos., Inc., 440 F.3d at 546 (citing Daggett, 172 F.3d at 113-14). In contrast to
Daggett, Movants are not claiming that Harvard represents “broader” public interests at some
abstract level; rather, Movants point to specific, divergent arguments that Harvard, as a private
institution, plans to make that would adversely impact Movants’ direct interests in the outcome

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of this case. See Daggett, 172 F.3d at 113-14. This is more than just a difference in “litigation
strategy,” as Harvard has styled it. See Harvard’s Response 2, 5-6.
The record reflects that Harvard is unlikely to argue that achieving a critical mass of
underrepresented minority students is necessary to achieve diversity. Although it filed amicus
briefs supporting affirmative action in Regents of the Univ. of California v. Bakke, Grutter v.
Bollinger, and Fisher v. Univ. of Texas at Austin (see Answer, Docket No. 17, ¶¶ 133, 139, 143),
in neither Grutter nor Fisher did Harvard contend that a critical mass of minority students will
reduce racial isolation and the spokesperson status of minority students. And in its 1977 brief in
Bakke, Harvard referred only once to racial isolation, and then only in the appendix to its brief,
which includes a copy of the Harvard College Admissions policy. See Brief for Columbia Univ.,
Harvard Univ., Stanford Univ., and the Univ. of Pennsylvania as Amici Curiae at 3, Bakke, 438
U.S. 265 (No. 76-811).
In contrast, Movants intend to argue that a race-conscious admissions policy is necessary
to achieve a critical mass of underrepresented minority students that effectively reduces racial
isolation. Because there is a concrete risk that Harvard will not take this position, as it has not
done so in three separate Supreme Court cases, Movants have satisfied the Rule 24(a)(2)
requirement that Harvard may not adequately represent their interests.
C.

The Motion to Intervene Was Timely Filed.

Plaintiffs argue Movants’ motion was not timely because, if granted, it will prejudice the
discovery schedule. Pl.’s Opp. 8. But it is irrelevant to intervention by right whether Movants’
participation would add time or expense to discovery if it was not the late filing of the motion
that caused that purported prejudice. Plaintiff was not prejudiced in the setting of the discovery
schedule because Movants filed the motion to intervene before the April 30, 2015 scheduling

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conference. Plaintiff was therefore on notice and had the full opportunity to argue for the longer
discovery schedule that it purports to need.
II.

PERMISSIVE INTERVENTION
MOVANTS TO AMICI.

IS

PREFERABLE

TO

RELEGATING

The orthodox view of the amicus curiae role “is, that of an impartial friend of the court—
not an adversary party in interest in the litigation.” United States v. Michigan, 940 F.2d 143,
164-65 (6th Cir. 1991) (citing Miller-Wohl Co. v. Comm’r of Labor & Indus., State of Montana,
694 F.2d 203, 204 (9th Cir. 1982)). When “a real party in interest” needs to proceed in an
adversarial fashion in order to protect its interests, it requires the “litigating status” of an
intervenor. Id. at 165. As the Supreme Court has explained, “an amicus—with the exception of
the right to file a brief—might be unable adequately to present all the relevant data to the court.”
Int’l Union, United Auto., Aerospace & Agr. Implement Workers of Am. AFL-CIO, Local 283 v.
Scofield, 382 U.S. 205, 216 (1965). An amicus cannot file pleadings; create, extend, or enlarge
an issue before the court; challenge the validity of testimony; or challenge an injunction while it
remains in effect. See Forest Conservation Council v. U.S. Forest Serv., 66 F.3d 1489, 1498 (9th
Cir. 1995); United States v. Michigan, 940 F.2d at 165. These limitations, if imposed on
Movants, would preclude them from assisting to develop a full record, including by gathering
evidence, providing expert testimony, and raising issues that no other party might want to raise.
For example, Movants would want to present evidence of the discriminatory effects of the SAT
and facts regarding the financial aid needs of underrepresented minorities.
Additionally, as amici, Movants would not be able to participate in any pre-judgment
settlement, nor could they appeal an adverse decision. See United States v. City of Los Angeles,
288 F.3d 391, 400 (9th Cir. 2002). Movants need these powers in case Harvard has different
settlement considerations or less appetite for appeal.

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Courts sometimes request amicus briefs in lieu of granting intervention when the movant
would not be affected by the outcome of the case itself but rather by the stare decisis effect of
the outcome. See, e.g., Bethune Plaza, Inc. v. Lumpkin, 863 F.2d 525, 533 (7th Cir. 1988) (“We
conclude that stare decisis effects may satisfy the standard of Rule 24(a)(2) only when the
putative intervenor's position so depends on facts specific to the case at hand that participation as
amicus curiae is inadequate to convey essential arguments to the tribunal.”) (citing FDIC v.
Jennings, 816 F.2d 1488, 1492 (10th Cir. 1987), for the proposition that “intervention [is] not
allowed when factual differences dilute the effect of stare decisis and intervention might
complicate the case”).

Here, Movants are future Harvard applicants and current Harvard

students and the effect of the outcome of the case is specific to them. That Movants have some
additional stake in the stare decisis effect on every private university subject to Title VI
regulations is only a supplementary reason to allow them to intervene. Relegating Movants to
amici would therefore be inappropriate.
Plaintiff and Harvard both argue that the Court should exercise its discretion in granting
permissive intervention in order to prevent discovery from becoming unwieldy in this case. See
Pl.’s Opp. 1-2; Harvard’s Response 7-10. Movants reiterate that they have already stipulated
they will abide by the Court’s May 4, 2015 Scheduling Order; therefore, any concern over timing
is unwarranted. Furthermore, Movants do not expect to need additional fact discovery beyond
what the Parties plan—Movants seek only the right to be present and involved in the planned fact
discovery so as to fully develop issues, such as the discriminatory effect of the SAT and
Harvard’s history of discrimination against underrepresented minorities, that one or another party
may not have the incentive to explore. Movants note that the district court in Grutter managed

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discovery and a full trial with intervenors both efficiently and effectively, and there is no reason
to doubt that this Court can do the same.
Finally, Harvard’s concern over the sensitive nature of applicant information is
unwarranted. Whatever protective order that would resolve this concern with the Plaintiff could
apply equally to the Movants. Thus, if confidential information regarding other Harvard College
students and applicants is revealed under a protective order only to counsel, and not to their
clients, Movants’ counsel can abide by those same terms.
III.

CONCLUSION
For the reasons given above, and in Proposed Defendant-Intervenors’ opening

memorandum, the Motion to Intervene should be granted.

Respectfully submitted,
Dated: May 15, 2015

/s/ Rahsaan D. Hall
Rahsaan D. Hall, BBO # 645369
LAWYERS’ COMMITTEE FOR CIVIL
RIGHTS AND ECONOMIC JUSTICE
294 Washington St. Suite 443
Boston, MA 02108
Tel: [phone]
[e-mail]
/s/ Jon M. Greenbaum
Jon M. Greenbaum, DC Bar # 489887 (pro
hac motion pending)
LAWYERS’ COMMITTEE FOR CIVIL
RIGHTS UNDER LAW
1401 New York Avenue, NW, Suite 400
Washington, DC 20005
Tel: [phone]
[e-mail]
ATTORNEYS FOR PROPOSED
DEFENDANT-INTERVENORS

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CERTIFICATE OF SERVICE
In accordance with Local Rule 5.2(b), I hereby certify that this document filed through
the ECF system on May 15, 2015 will be sent electronically to the registered participants as
identified on the Notice of Electronic Filing.
/s/ Rahsaan D. Hall
Rahsaan D. Hall