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

Filing 482

REPLY to Response to 455 MOTION for Leave to File to Participate as Amici Curiae filed by Coalition for a Diverse Harvard, First Generation Harvard Alumni, Fuerza Latina of Harvard, Harvard Asian American Brotherhood, Harvard Islamic Society, Harvard Japan Society, Harvard Korean Association, Harvard Latino Alumni Alliance, Harvard Minority Association of Pre-Medical Students, Harvard Phillips Brooks House Association, Harvard South Asian Association, Harvard University Muslim Alumni, Harvard Vietnamese Association, Harvard-Radcliffe Asian American Association, Harvard-Radcliffe Asian American Women's Association, Harvard-Radcliffe Black Students Association, Harvard-Radcliffe Chinese Students Association, Kuumba Singers of Harvard College, Native American Alumni of Harvard University, Native Americans At Harvard College, Task Force on Asian and Pacific American Studies at Harvard College. (Kleinman, Rachel)

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
Leave to file granted on August 16, 2018

Defendant.

REPLY TO STUDENTS FOR FAIR ADMISSIONS, INC.’S
MEMORANDUM IN OPPOSITION TO
HARVARD-RADCLIFFE BLACK STUDENTS ASSOCIATION,
KUUMBA SINGERS OF HARVARD COLLEGE,
FUERZA LATINA OF HARVARD,
NATIVE AMERICANS AT HARVARD COLLEGE,
HARVARD-RADCLIFFE ASIAN AMERICAN ASSOCIATION,
HARVARD-RADCLIFFE ASIAN AMERICAN WOMEN’S ASSOCIATION,
HARVARD ASIAN AMERICAN BROTHERHOOD,
HARVARD VIETNAMESE ASSOCIATION,
HARVARD-RADCLIFFE CHINESE STUDENTS ASSOCIATION,
HARVARD KOREAN ASSOCIATION,
HARVARD JAPAN SOCIETY,
HARVARD SOUTH ASIAN ASSOCIATION,
HARVARD ISLAMIC SOCIETY,
TASK FORCE ON ASIAN AND PACIFIC AMERICAN
STUDIES AT HARVARD COLLEGE,
HARVARD PHILLIPS BROOKS HOUSE ASSOCIATION,
MINORITY ASSOCIATION OF PRE-MEDICAL STUDENTS,
COALITION FOR A DIVERSE HARVARD,
FIRST GENERATION HARVARD ALUMNI,
NATIVE AMERICAN ALUMNI OF HARVARD UNIVERSITY,
HARVARD UNIVERSITY MUSLIM ALUMNI, AND
HARVARD LATINO ALUMNI ALLIANCE
MOTION TO PARTICIPATE AS AMICUS CURIAE

On July 30, 2018, Amici Organizations1 filed a Motion for Leave to Participate as Amici
Curiae, an amicus brief in support of the summary judgment motion filed by Defendant President
and Fellows of Harvard College (Harvard Corporation) (“Defendant” or “Harvard”), and sixteen
declarations from representatives of Amici Organizations. ECF No. 455, 455-1–17. Leave of the
Court was not required to file an amicus brief under the Court’s July 24, 2018 Order, ECF No.
432, but Amici Organizations did seek leave of the Court to submit declarations and participate in
this action under the same terms granted by this Court to certain individual student amici. See
Amici Organization’s Motion to Participate as Amici Curiae, ECF No. 455 at 2. This motion was
granted by the Court on July 31, 2018, ECF No. 465, and Amici Organizations subsequently filed
their Declarations along with their Amicus Brief, ECF No. 471.
Plaintiff Students for Fair Admissions, Inc. (“Plaintiff” or “SFFA”) now argues that,
despite this Court’s Order, the Amici Organizations’ Declarations should be struck from the record
and excised from the brief. Through its Opposition, ECF No. 479, SFFA is attempting to silence
the unique voices of Harvard students and alumni organizations, which represent the interests of
thousands of Harvard students and alumni of color and other students and alumni who are deeply
committed to fostering diversity on Harvard’s campus and, thus, have a deep interest in this case.2

Amici Curiae include Harvard-Radcliffe Black Students Association (“BSA”), Kuumba Singers of Harvard
College (“Kuumba”), Fuerza Latina of Harvard (“Fuerza Latina”), Native Americans at Harvard College (“NAHC”),
Harvard-Radcliffe Asian American Association (“AAA”), Harvard-Radcliffe Asian American Women’s Association
(“AAWA”), Harvard Asian American Brotherhood (“AAB”), Harvard Vietnamese Association (“HVA”), HarvardRadcliffe Chinese Students Association (“CSA”), Harvard Korean Association (“HKA”), Harvard Japan Society
(“HJS”), Harvard South Asian Association (“SAA”), Harvard Islamic Society (“HIS”), Task Force on Asian and
Pacific American Studies at Harvard College (“TAPAS”), Harvard Phillips Brooks House Association (“PBHA”),
Harvard Minority Association of Pre-Medical Students (“MAPS”), Coalition for a Diverse Harvard (“Diverse
Harvard”), First Generation Harvard Alumni (“FGHA”), Native American Alumni of Harvard University
(“NAAHU”), Harvard University Muslim Alumni (“HUMA”), and Harvard Latino Alumni Alliance (“HLAA”)
(collectively “Amici Organizations”).
1

It bears emphasis that, since the Court granted the Amici Organizations’ motion to file its brief and
declarations (ECF No. 465), the proper vehicle for Plaintiffs’ opposition here is actually a Motion for Reconsideration
under Rules 59(e) and 60(b) of the Federal Rules of Civil Procedure. The granting of a motion for reconsideration is
2

2

Plaintiff’s objections should be rejected, not only because they would prevent this Court from
considering important information and perspectives from student and alumni organizations that
have long dealt with—and have been concerned about—the issues at the heart of this case, but also
because they fail to explain how Amici Organizations’ declarations are untimely or will cause
unfair prejudice.
This Court granted leave to participate in this action as amici plus to a group of current and
prospective Harvard students (“Individual Amici”) on June 15, 2015. ECF No. 52 at 23.3 The Court
later extended the same amicus plus status to other student amici. See ECF No. 244 (granting
individual students J.F. and M.A. leave to participate as amici curiae under the same terms). Amici
Organizations sought the same inclusion under the June 15 order. ECF No. 455 at 2. SFFA’s
contention that the Amici Organizations are not similarly situated to those additional student amici
is incorrect. Amici Organizations took the same steps as the additional student amici, including:
(1) moving the Court to seek the same status granted Individual Amici; and (2) filing declarations
by the July 30 amicus deadline, the very same day that declarations were filed by Individual Amici
who were already granted this status. See ECF No. 40-1.
SFFA’s purported interest in seeking discovery from Amici Organizations, despite not
seeking discovery about any other amici over the years it has been litigating this case, warrants
skepticism and is not a ground for excluding the declarations of the Amici Organizations.

“an extraordinary remedy which should be used sparingly.” 11 Charles Alan Wright et al., Federal Practice and
Procedure § 2810.1 (2d ed.1995). “To obtain relief, the movant must demonstrate either that newly discovered
evidence (not previously available) has come to light or that the rendering court committed a manifest error of law.”
Palmer v. Champion Mortg., 465 F.3d 24, 30 (1st Cir. 2006) (citing cases). Plaintiff has not met this exacting standard.
3
The Court ordered that these amici curiae, who are current and prospective students, may through their
counsel: (1) submit a brief or memorandum of law not to exceed 30 pages (exclusive of exhibits) on any dispositive
motion in this case; (2) participate in oral argument on any dispositive motion in this case; and (3) submit personal
declarations or affidavits in support of their memorandum of law, which may be accorded evidentiary weight if
otherwise proper. ECF No. 52 at 23.

3

Moreover, SFFA has two months before trial commences to seek discovery from Amici
Organizations and, thus, has demonstrated no prejudice from the declarations. Thus, SFFA’s
request to exclude Amici Organizations’ declarations on the basis of timeliness is meritless and
should be rejected. See Albert v. Warner–Lambert Co., No. 99-11700, 2002 WL 745822 at *1. (D.
Mass. Apr. 24, 2002) (recognizing that “even in cases where a party cannot demonstrate that its
failure to comply with a . . . disclosure deadline was justified or harmless,” a more measured
approach is required because preclusion of evidence is an extreme sanction).
By seeking to strike Amici Organizations’ declarations entirely, rather than cure any
prejudice through additional discovery, SFFA reveals the true motivation behind its Opposition:
to exclude the voices of Harvard student and alumni organizations. See ECF No. 479-1 (proposing
to broadly strike the perspectives of Harvard student and alumni declarants from nearly every page
of Amici Organizations’ brief). This is especially troubling because Amici Organizations include
longstanding and prominent organizations for Black, Latinx, Asian American, and Native
American students at Harvard, and can offer the Court institutional knowledge otherwise missing
from this important case. See ECF No. 455 at 10. The perspectives of underrepresented student
and alumni groups are crucial to understanding why a race-conscious admissions policy is needed
and should not be erased from the record. Id. at 13-14.
SFFA also argues that Amici Organizations’ declarations should be struck because they
include opinion testimony. This contention is also incorrect. The testimony of Amici Organizations
should be admitted under Federal Rule of Evidence 701 because it is based on the declarants’
perceptions and personal experiences and can help the court determine factual issues as to how
race-conscious admissions affects Harvard students. See United States v. Valdivia, 680 F.3d 33,
50 (1st Cir. 2012) (“If a witness is not testifying as an expert, testimony in the form of [opinions or

4

inferences] is limited to [those which are] (a) rationally based on the witness’s perception;
(b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and
(c) not based on scientific, technical, or other specialized knowledge within the scope of Rule
702.” (quoting Fed. R. Evid. 701 (emphasis removed)). The portions of the declarations that SFFA
challenges describe how Harvard organizational leaders experience the admissions process and
student life on campus and are not only permissible lay person testimony, but directly inform the
key issues in this case. See also Friend v. Leidinger, 446 F. Supp. 361, 381 (E.D. Va. 1977), aff’d,
588 F.2d 61 (4th Cir. 1978) (holding in a case alleging racial discrimination against black firemen,
affidavits of firemen opining about the conditions relating to their employment could be considered
under Federal Rule of Evidence 701). Moreover, even if portions of the declarations are not
permissible under Rule 701, the correct remedy would be to strike only those portions of the
declarations that are impermissible, not the declarations in their entirety.
For the above reasons, Amici Organizations respectfully request that the Court deny
SFFA’s request to strike their declarations and those portions of their amicus brief that reference
the declarations.

Dated: August 16, 2018

Respectfully submitted,
/s/ Rachel Kleinman
Sherrilyn Ifill*
Janai Nelson*
Samuel Spital*
Jin Hee Lee*
Rachel Kleinman*
Cara McClellan*
NAACP Legal Defense &
Educational Fund, Inc.
5

40 Rector Street, 5th Floor
New York, NY 10006
[phone]
Michaele N. Turnage Young*
Jennifer A. Holmes*
NAACP Legal Defense &
Educational Fund, Inc.
700 14th Street NW, Suite 600
Washington, DC 20005
[phone]
/s/ Kate R. Cook
Kate R. Cook, BBO #650698
[e-mail]
Kenneth N. Thayer, BBO #61029
[e-mail]
Sugarman, Rogers, Barshak & Cohen, P.C.
101 Merrimac Street (9th floor)
Boston, MA 02114-4737
[phone]
Counsel for Amici Curiae Harvard-Radcliffe
Black Students Association, Kuumba Singers
of Harvard College, Fuerza Latina of
Harvard, Native Americans at Harvard
College, Harvard-Radcliffe Asian American
Association, Harvard-Radcliffe Asian
American Women’s Association, Harvard
Asian American Brotherhood, Harvard
Vietnamese Association, Harvard-Radcliffe
Chinese Students Association, Harvard
Korean Association, Harvard Japan Society,
Harvard South Asian Association, Harvard
Islamic Society, Task Force on Asian and
Pacific American Studies at Harvard
College, Harvard Phillips Brooks House
Association, Harvard Minority Association
of Pre-Medical Students, Coalition for a
Diverse Harvard, First Generation Harvard
Alumni, Native American Alumni of Harvard
University, Harvard University Muslim
Alumni, and Harvard Latino Alumni
Alliance
*Admitted Pro Hac Vice
6

CERTIFICATE OF SERVICE
I hereby certify that on the 16th day of August, 2018, a copy of the above and foregoing
REPLY TO STUDENTS FOR FAIR ADMISSIONS, INC.’S

MEMORANDUM IN

OPPOSITION TO HARVARD-RADCLIFFE BLACK STUDENTS ASSOCIATION, KUUMBA
SINGERS OF HARVARD COLLEGE, FUERZA LATINA OF HARVARD, NATIVE
AMERICANS AT HARVARD COLLEGE, HARVARD-RADCLIFFE ASIAN AMERICAN
ASSOCIATION, HARVARD-RADCLIFFE ASIAN AMERICAN WOMEN’S ASSOCIATION,
HARVARD

ASIAN

ASSOCIATION,

AMERICAN

BROTHERHOOD,

HARVARD-RADCLIFFE

CHINESE

HARVARD
STUDENTS

VIETNAMESE
ASSOCIATION,

HARVARD KOREAN ASSOCIATION, HARVARD JAPAN SOCIETY, HARVARD SOUTH
ASIAN ASSOCIATION, HARVARD ISLAMIC SOCIETY, TASK FORCE ON ASIAN AND
PACIFIC AMERICAN STUDIES AT HARVARD COLLEGE, HARVARD PHILLIPS
BROOKS HOUSE ASSOCIATION, MINORITY ASSOCIATION OF PRE-MEDICAL
STUDENTS, COALITION FOR A DIVERSE HARVARD, FIRST GENERATION HARVARD
ALUMNI, NATIVE AMERICAN ALUMNI OF HARVARD UNIVERSITY, HARVARD
UNIVERSITY MUSLIM ALUMNI, AND HARVARD LATINO ALUMNI ALLIANCE
MOTION TO PARTICIPATE AS AMICUS CURIAE was filed electronically with the Clerk of
Court using the CM/ECF system. Notice of this filing will be sent to all counsel of record by
operation of the court’s electronic filing system.
/s/ Rachel Kleinman
Rachel Kleinman*
NAACP Legal Defense &
Educational Fund, Inc.
40 Rector Street, 5th Floor
New York, NY 10006
[phone]
*Admitted Pro Hac Vice
7