Students for Fair Admissions, Inc. v. President and Fellows of Harvard College et al
Judge Allison D. Burroughs: ORDER enteredMEMORANDUM AND ORDER ON PROPOSED DEFENDANT-INTERVENORS' MOTION TO INTERVENE the Proposed Intervenors Motion to Intervene 30 is DENIED; however, the Proposed Intervenors are granted leave to participate in this action as amici curiae. (Montes, Mariliz)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
STUDENTS FOR FAIR ADMISSIONS,
PRESIDENT AND FELLOWS OF
HARVARD COLLEGE (HARVARD
MEMORANDUM AND ORDER ON PROPOSED DEFENDANT-INTERVENORS’
MOTION TO INTERVENE
In this action, Plaintiff Students for Fair Admissions, Inc. (“SFFA”) alleges that
Defendant Harvard College (“Harvard”) employs racially and ethnically discriminatory policies
and procedures in administering its undergraduate admissions program, in violation of Title VI
of the Civil Rights Act of 1964 and the Equal Protection Clause of the Fourteenth Amendment to
the United States Constitution. SFFA’s Complaint sets forth two types of allegations. First,
SFFA asserts that the general manner in which Harvard considers race in its undergraduate
admissions program violates the Equal Protection Clause. As opposed to using race as a mere
“plus” factor in admissions decisions, SFFA alleges that Harvard engages in prohibited “racial
balancing.” Second, SFFA alleges that Harvard’s policies invidiously discriminate against AsianAmerican applicants in particular. Because Harvard allegedly limits the number of AsianAmerican applicants to whom it will offer admission every year, SFFA contends that those
applicants are forced to compete against each other for a limited number of openings.
Consequently, a large number of otherwise highly qualified Asian-American applicants are
allegedly denied admission to Harvard on the basis of their race or ethnicity. 1 Harvard denies
these allegations, insists that its admissions policies fully comply with federal law, and maintains
its intention to mount a vigorous defense to SFFA’s claims.
Presently before the Court is a Motion to Intervene in Defense of Harvard’s Admission
Policy, which was filed on April 29, 2015 [ECF No. 30]. The movants and proposed intervenors
are nine minority high-school students who intend to apply for admission to Harvard College at
some time in the future (the “Future Applicants”), and five minority college students who are
currently enrolled in Harvard’s full-time undergraduate program (the “Harvard Students”)
(collectively, the “Students”). In contrast to SFFA, these Students support Harvard’s
consideration of race in its admissions process, and they seek to intervene “in order to ensure that
Harvard retains the right to consider race in its admissions decisions to the full extent allowed by
law.” [ECF No. 31, p. 3]. For the reasons set forth herein, the Court finds that the Students do not
meet the criteria for intervention as of right pursuant to Fed. R. Civ. P. 24(a), and it declines to
allow permissive intervention pursuant to Fed. R. Civ. P. 24(b). Consequently, the Court will
deny the Students’ Motion to Intervene, but allow them to participate in this litigation as amici
SFFA filed its Complaint with this Court on November 17, 2014, and Harvard filed its
Answer on February 18, 2015. On May 4, 2015, the Court issued a Scheduling Order governing
SFFA purports to be a coalition of applicants and prospective applicants to institutions of
higher education, along with their parents and other individuals. It further alleges to have at least
one Asian-American student member who applied for and was denied admission to Harvard’s
2014 entering class [Complaint ¶¶ 12-24, ECF No. 1].
the timing of discovery, dispositive motions, and other matters. At this point, the case has not
advanced beyond the early stages of discovery. On April 29, 2015, the Students filed their
Motion to Intervene with the Court [ECF No. 30], along with a supporting Memorandum of Law
[ECF No. 31]. In addition, each of the Students filed a declaration explaining their purported
interest in this case [ECF No. 31-1].
The Future Applicants
Movant M.B. is a high school junior, who identifies as African American and Caucasian.
Movant K.C. is a high school sophomore and identifies as a Native American. Movant Y.D. is a
high school junior and a member of the Oneida Tribe. Y.D. identifies as Native American.
Movant G.E. is a high school freshman and an enrolled member of the Gila River Indian
Community. G.E. identifies as Native American. Movant A.G. is a high school junior of
Hispanic and Filipino descent. Movant I.G. is a high school freshman and is also of Hispanic and
Filipino descent. Movant R.H. is an African American high school junior. Movant J.L. is a high
school sophomore and states that his or her tribal affiliation is Jemez Pueblo and Zuni Tribe. J.L.
identifies as Native American. Movant R.S. is a high school freshman and identifies as Native
American, of the Confederated Tribes of the Umatilla Indian Reservation.
These students’ declarations detail their impressive academic accomplishments, high
grade-point-averages, involvement in extracurricular programs, and participation in activities
related to their cultural and ethnic heritage. In addition, each student expresses a desire to
experience a racially diverse environment in college, and a belief that his or her own unique
cultural and ethnic background will contribute to the educational experiences of his or her peers.
Further, each of these students states that he or she intends to apply for admission to Harvard’s
undergraduate program, and to apply for financial aid. None, however, claims to have submitted
an application to Harvard at this point in time.
The Harvard Students
Movant Sarah Cole is a full-time undergraduate student at Harvard, who identifies as
Black or African American. Movant Fadhal Moore is a full-time undergraduate student at
Harvard and identifies as African American. Movant Arjini Kumari Nawal is full-time
undergraduate student at Harvard, who identifies as Asian American, of Sri Lankan descent.
Movant Itzel Libertad Vasquez-Rodriguez is a full-time undergraduate student at Harvard
College. She identifies as Native American and Latina, of Mexican Ancestry. Movant Keyanna
Wigglesworth is a full-time undergraduate student at Harvard, who describes her race and
ethnicity as Black American. Each of these students professes to experience academic and/or
personal benefits from Harvard’s racially diverse student body, and each believes that his or her
education would be harmed if Harvard stopped considering race in its admissions policy. Each
student also states that he or she would like to see an increase in the number and diversity of
underrepresented minority groups admitted to Harvard.
SUMMARY OF THE STUDENTS’ POSITION
The Students argue that Harvard must remain free to address the underrepresentation of
certain racial and ethnic minority groups in its student body, so as to secure for these students
access to opportunities associated with attending Harvard. Further, the Students believe they are
in the best position to advance these interests, because their educational goals, career aspirations,
and life experiences would be adversely affected if Harvard were prohibited from considering
race in its admissions process. They seek to intervene because they believe that Harvard may not
adequately represent their interests in this litigation, for a number of reasons. First, the Students
wish to emphasize certain arguments that they fear Harvard may not present to the Court. For
example, the Students believe that Harvard should remain free to consider race and ethnicity in
order to offset the disparate impact of certain other aspects of Harvard’s admissions policy –
including Harvard’s consideration of so-called “legacy” applicants whose parents may have
attended Harvard; the school’s Early Action admissions program; and its reliance on SAT scores
as a factor in admission. Each of these policies or criteria, the Students argue, has a negative
impact on the admission of minority applicants. Accordingly, the Students want to argue that
Harvard’s continued use of race and ethnicity in its admissions process is critical to offsetting the
disparate impact of such programs. And because Harvard is unlikely to concede that its own
admissions policies have adverse effects on minority applicants, the Students argue that Harvard
does not adequately represent their interests in this regard [ECF No. 31 pp. 4-5]. In addition, the
Students claim that they will argue – and that Harvard is unlikely to argue – that achieving a
“critical mass” of minority students is necessary to reduce the racial isolation of minority
students on campus [ECF No. 42 p. 8].
Second, the Students suggest that Harvard’s defense of its admissions procedures “may
be affected by concern over its public perception or by the need to serve myriad constituencies
such as alumni, faculty, and the academic community . . . .” Essentially, the Students argue that
Harvard would not be as zealous an advocate as they, and “[t]o the extent Harvard would seek to
settle or would otherwise avoid politically sensitive topics,” their intervention would ensure that
those arguments are presented as fully and forcefully as possible [ECF No. 31 p. 5].
Third, the Students claim that Harvard lacks the ability to defend its race-conscious
admissions policy adequately because “Harvard, as an institution, does not have the personal
experiences that Movants do with respect to race and ethnicity.” [ECF No. 31 p. 14].
The Students argue that these considerations entitle them to intervene in this matter as of
right, pursuant to Fed. R. Civ. P. 24(a). Alternatively, they argue that the Court should allow
permissive intervention pursuant to Fed. R. Civ. P. 24(b).
SUMMARY OF SFFA AND HARVARD’S POSITIONS
Both SFFA and Harvard oppose the Students’ full-fledged intervention in this action,
and both argue that the Students are not entitled to intervene as of right under Fed. R. Civ. P.
24(a). Harvard submits that intervention is not warranted because Harvard will adequately
represent the Students’ interests [ECF No. 38]. SFFA agrees, and it further argues that the
Students lack a “demonstrated interest” in this litigation, and that the Students’ motion to
intervene was not timely filed [ECF No. 37]. In addition, both parties are concerned that fullscale intervention could interfere with the expeditious and orderly resolution of this case, by
adding additional parties, broadening the scope of discovery, and engendering delays. Harvard
has also cited concerns for the privacy of its students and applicants, which would be
exacerbated by the intervention of additional parties.
However, neither SFFA nor Harvard opposes a more limited form of participation by
the Students. SFFA suggests that the Students be permitted to participate as amici curiae [ECF
No. 37 pp. 9-10]. Harvard submits that if the Court permits intervention, it should limit the
Students’ participation to the submission of briefs, the presentation of their own declarations, and
participation in any oral argument that the Court may choose to hear. Alternatively, Harvard is
not opposed to the Students’ participation as amici curiae, as suggested by SFFA [ECF No. 38
A. Legal Standard
The Federal Rules of Civil Procedure contemplate two types of motions to intervene:
intervention as of right, as set forth in Fed. R. Civ. P. 24(a), and permissive intervention,
pursuant to Fed. R. Civ. P. 24(b). R&G Mortg. Corp. v. Fed. Home Loan Mortg. Corp., 584 F.3d
1, 8 (1st Cir. 2009). “The differences are significant.” Id. Faced with a motion to intervene as of
right, the court must apply a four-factor test, and its discretion is “somewhat more constrained
than in the case of a motion for permissive intervention.” Id. In contrast, when deciding whether
permissive intervention is warranted under Fed. R. Civ. P. 24(b), the district court “can consider
almost any factor rationally relevant,” and “enjoys very broad discretion” in allowing or denying
the motion. Daggett v. Comm’n on Governmental Ethics & Election Practices, 172 F.3d 104,
113 (1st Cir. 1999).
1. Fed. R. Civ. P. 24(a) – Intervention as of Right
Federal Rule of Civil Procedure 24(a) provides an “authoritative recipe” that lists the
“essential ingredients” for intervention as of right. Ungar v. Arafat, 634 F.3d 46, 50 (1st Cir.
2011). In the absence of a federal statute providing for a right to intervene, and on a timely
motion, the court must permit anyone to intervene who:
claims an interest relating to the property or transaction that is the
subject of the action, and is so situated that disposing of the action
may as a practical matter impair or impede the movant's ability to
protect its interest, unless existing parties adequately represent that
Fed. R. Civ. P. 24(a). “It follows that a would-be intervenor must demonstrate that: (i) its motion
is timely; (ii) it has an interest relating to the property or transaction that forms the foundation of
the ongoing action; (iii) the disposition of the action threatens to impair or impede its ability to
protect this interest; and (iv) no existing party adequately represents its interest.” Ungar, 634
F.3d at 50.
Although “[e]ach of these requirements must be fulfilled, [and] failure to satisfy any one
of them defeats intervention as of right,” id. at 51, the “inherent imprecision of Rule 24(a)(2)'s
individual elements dictates that they ‘be read not discretely, but together,’ and always in
keeping with a commonsense view of the overall litigation.” Pub. Serv. Co. of N.H. v. Patch, 136
F.3d 197, 204 (1st Cir. 1998) (citation omitted). Further, the First Circuit has noted that deciding
whether each of these requirements has been met “requires a series of judgment calls—a
balancing of factors that arise in highly idiosyncratic factual settings.” Ungar, 634 F.3d at 51.
2. Fed. R. Civ. P. 24(b) – Permissive Intervention
In contrast to the four-factor test for intervention as of right, permissive intervention has
only two criteria. Upon a timely motion, the court has discretion to allow permissive intervention
“when an applicant’s claim or defense and the main action have a question of law or fact in
common.” Daggett, 172 F.3d at 112-13; see Fed. R. Civ. P. 24(b)(1)(B). 2 Permissive
intervention, however, is “wholly discretionary,” and when exercising its discretion, the court
may consider “almost any factor rationally relevant . . . .” Daggett, 172 F.3d at 113. In addition,
Rule 24(b)(3) expressly provides that the court must consider “whether intervention will
prejudice the existing parties or delay the action.” Fed. R. Civ. P. 24(b)(3); see Glass
Dimensions, Inc. ex rel. Glass Dimensions, Inc. Profit Sharing Plan & Trust v. State St. Bank &
Trust Co., 290 F.R.D. 11, 14 (D. Mass. 2013).
In addition, the claim or defense asserted by the proposed intervenor must be supported by
independent jurisdictional grounds. Int'l Paper Co. v. Inhabitants of Town of Jay, Me., 887 F.2d
338, 346 (1st Cir. 1989).
B. The Students’ Motion to Intervene Is Timely
As a threshold matter, the Court finds that the Students’ Motion to Intervene is timely for
purposes of Fed. R. Civ. P. 24(a) and (b). Rule 24’s timeliness inquiry “is inherently factsensitive and depends on the totality of the circumstances.” R & G Mortgage Corp., 584 F.3d at
7. Generally, the court should consider
(i) the length of time that the putative intervenor knew or
reasonably should have known that his interests were at risk before
he moved to intervene; (ii) the prejudice to existing parties should
intervention be allowed; (iii) the prejudice to the putative
intervenor should intervention be denied; and (iv) any special
circumstances militating for or against intervention.
Id. (citation omitted).
SFFA argues that the Students’ motion is untimely because they waited more than five
months after the Complaint was filed to move for intervention. SFFA further submits that the
existing parties would be prejudiced by the Students’ delay, as the Court has already entered a
scheduling order setting discovery deadlines, which would need to be modified to accommodate
the proposed-intervenors. These arguments are not sufficiently persuasive. In evaluating the
timeliness of a motion to intervene, “the status of the litigation at the time of the request for
intervention is ‘highly relevant.’” Id. (quoting Banco Popular de Puerto Rico v. Greenblatt, 964
F.2d 1227, 1231 (1st Cir. 1992)). Although SFFA filed its Complaint in this case on November
17, 2014, Harvard did not answer the Complaint until February 18, 2015. The Students filed their
Motion to Intervene on April 29, 2015, before an initial scheduling conference had taken place,
and before the Court had issued the Scheduling Order. The Court does not find this to be an
unreasonable delay. Furthermore, if the Students were permitted to intervene, any corresponding
adjustments to the Scheduling Order would not prejudice the parties, as this case is in the very
early stages of discovery. Compare Glass Dimensions, Inc., 290 F.R.D. at 15 (denying motion to
intervene as untimely, where intervention would require, among other things, re-opening fact and
expert discovery and re-briefing summary judgment), with Geiger v. Foley Hoag LLP Ret. Plan,
521 F.3d 60, 64-65 (1st Cir. 2008) (finding that nine-month delay was not untimely, in part
because the case had not progressed beyond its initial stages and no discovery had taken place).
Under these circumstances, the Court finds that the Students’ Motion is timely.
C. The Students Lack a Sufficiently Protectable Interest to Warrant
Intervention as of Right
To satisfy intervention as of right, however, Fed. R. Civ. P. 24(a) also requires a
proposed intervenor to demonstrate “an interest relating to the property or transaction that is the
subject of the action,” and that the disposition of the action “may, as a practical matter impair or
impede the movant’s ability to protect its interest . . . .” Fed. R. Civ. P. 24(a)(2). Although the
interest requirement has eluded precise definition, the First Circuit has established some
guidelines. At a bare minimum, the proposed intervenor must show that it has a “significantly
protectable interest,” Patch, 136 F.3d at 205 (quoting Donaldson v. United States, 400 U.S. 517,
531 (1971)), “that is ‘direct, not contingent.’” Id. (quoting Travelers Indem. Co. v. Dingwell, 884
F.2d 629, 638 (1st Cir. 1989)). Further, the intervenor’s claim must “bear a sufficiently close
relationship to the dispute between the original litigants.” Travelers Indem. Co., 884 F.2d at 638
(internal quotations and citation omitted).
In this case, because the proposed intervenors are comprised of two distinct groups (nine
Future Applicants to Harvard, and five current Harvard Students), and because each group’s
purported interest in this matter is slightly different, the question of “interest” must be analyzed
separately for each group.
1. Future Applicants
The Court agrees with SFFA that the Future Applicants do not have a direct, protectable
interest in this litigation that warrants intervention as of right under Rule 24(a). As a practical
matter, although each of the Future Applicants has stated his or her intent to apply to Harvard at
some point in the future, none of them has even a pending application. Therefore, there is little
that distinguishes the proposed intervenors currently before the Court from any other minority
student in America, or indeed, the world, who may potentially be affected by Harvard’s
consideration or non-consideration of race and ethnicity in its admissions decisions, if he or she
should decide to apply. This is not a case where the proposed intervenors “belong to a small
group, quite distinct from the ordinary run of citizens,” who would be affected directly by the
outcome of the case. Daggett, 172 F.3d at 110. These students’ purported interests in Harvard’s
admissions policies are simply too removed, too speculative, and too contingent, to justify
intervention as of right under Rule 24(a).
The First Circuit’s holding in Public Service Co. of New Hampshire v. Patch is
instructive in this regard. 136 F.3d 197 (1st Cir. 1998). In Patch, a citizens’ group of several
hundred residential and commercial electricity consumers sought to intervene in an action
brought by utility companies against the state of New Hampshire’s public utilities commission.
Id. at 203-04. Although the intervenors argued that they had an interest in the outcome of the
litigation, because it would affect their ability to obtain lower utility rates, the First Circuit found
that this theory “operates at too high a level of generality,” as “every electricity consumer in
New Hampshire . . . yearns for lower electric rates.” Id. at 205. Further, the court found that the
interest articulated by the consumers had an “overly contingent quality,” where the intervenors
“root their professed economic interest in an as yet unrealized expectancy of lower electric
rates.” Id. at 205-06. The court noted that this was not a case “in which ongoing litigation
directly threatens an economic right or benefit presently enjoyed by any would-be intervenor.”
Id. at 205. Here, like the New Hampshire consumer group in Patch, the purported interests of the
Future Applicants in Harvard’s continued consideration of race and ethnicity in its admissions
process are too general and too contingent to warrant intervention as of right.
The Court also finds that the Future Applicants’ purported interest is not sufficiently
“protectable” to warrant intervention as of right. The Students concede that they have “no
constitutional right to have their race considered by Harvard,” assuming that they eventually
apply [ECF No. 42, p. 4]. They argue, however, that they are nonetheless “entitled to protect
their interests in Harvard’s right to consider race in admissions regardless of whether Harvard is
legally compelled to do so.” [Id.]. This argument is not persuasive. As the Students seem to
acknowledge, this interest is indirect, as it is derivative of Harvard’s right to consider race in its
admissions process. 3
Nor do the Students have a protectable interest that is on-par with that of the Plaintiff in
this case. SFFA’s claims in this action derive from their members’ constitutional right to be free
from unlawful discrimination based on race. It does not follow, however, that all prospective
applicants have an equally protectable interest in the school’s continued consideration of race in
its admissions policies, or that they may maintain a legal claim in support of those practices. In
other words, the Plaintiff’s interest in preventing Harvard from considering race in its admissions
decisions is qualitatively different from the proposed-intervenors’ interest in supporting
Harvard’s admissions policies. The former gives rise to a constitutional claim, while the latter
And, to the extent that the Students share in Harvard’s interest, that interest is adequately
represented by Harvard, as will be discussed, infra.
Similarly, the Future Applicants also lack a protectable interest in obtaining the many
benefits of a Harvard education, or Harvard’s financial aid program. To borrow from the
language of Article III standing, “the ‘injury in fact’ in an equal protection case of this variety is
the denial of equal treatment resulting from the imposition of the barrier, not the ultimate
inability to obtain the benefit.” Ne. Florida Chapter of Associated Gen. Contractors of Am. v.
City of Jacksonville, Fla., 508 U.S. 656, 666 (1993). 4 Although the Court understands why the
Future Applicants are interested in the outcome of this litigation, their interest is not a
significantly protectable one that warrants intervention. See Travelers Indem. Co., 884 F.2d at
638 (citing Flynn v. Hubbard, 782 F.2d 1084, 1092 (1st Cir. 1986) (Coffin, J., concurring)
(noting that interest must be “direct, substantial, [and] legally protectable”)).
In addition, though the Students argue that courts “routinely” grant intervention as of
right to parties “seeking to protect their interests in race-conscious programs from which they
benefit,” [ECF No. 31 p. 10], the cases they cite are largely distinguishable. See, e.g., Johnson v.
San Francisco Unified Sch. Dist., 500 F.2d 349, 352 (9th Cir. 1974) (per curiam) (parents of
children of Chinese ancestry had a right to intervene in action challenging compulsory
desegregation program in their public school district); Black Fire Fighters Ass’n of Dallas v. City
of Dallas, Tex., 19 F.3d 992, 994 (5th Cir. 1994) (group of city firefighters had right to intervene
This Court recognizes that neither the Supreme Court nor the First Circuit has expressly
decided whether the “interest” referred to in Rule 24(a) requires a proposed intervenor to possess
Article III standing. See Daggett, 172 F.3d at 109 (citing Diamond v. Charles, 476 U.S. 54, 6869 & n.21 (1986) (declining to resolve the issue)); see also Igartua v. United States, 636 F.3d 18,
19 (1st Cir. 2011). The First Circuit has noted, however, that although the two concepts may not
be identical, “the ‘interest’ required under Rule 24(a) has some connection to the interest that
may give the party a sufficient stake in the outcome to support standing under Article III.”
Daggett, 172 F.3d at 110. The First Circuit has also suggested that while it may not be
impossible for an intervenor to demonstrate a Rule 24(a) interest without possessing Article III
standing, such cases would be “unusual” and involve “peculiar circumstances.” Cotter v.
Massachusetts Ass’n of Minority Law Enforcement Officers, 219 F.3d 31, 34 (1st Cir. 2000).
in action, where consent decree would affect their promotional opportunities). In Johnson, the
intervenors were not simply “potential” applicants to a private university and possible
beneficiaries of its resources – they were established residents of a public school district, whose
children would be compelled to follow the district’s reassignment policies. 500 F.2d at 352. In
City of Dallas, the intervenors were firefighters, presently employed by the city, whose
opportunities for promotional advancement would be immediately and directly impacted by the
outcome of a racial discrimination suit. 19 F.3d at 994-95. Thus, these intervenors’ interests were
not speculative, indirect, or contingent.
The Students also rely heavily on Grutter v. Bollinger, in which the Sixth Circuit held, in
circumstances very similar to these, that prospective minority applicants had a substantial
interest in an action challenging the University of Michigan’s admissions policy, and a
corresponding right to intervene in the litigation. 188 F.3d 394. The Court has carefully reviewed
the Grutter opinion, and notes that the Sixth Circuit applied, in its own words, “a ‘rather
expansive notion of the interest sufficient to invoke intervention of right’” under Rule 24(a). 188
F.3d at 398. This is in contrast to a more restrictive test employed by some other circuits, which
rejects interests that are “speculative, indirect, or contingent.” Conservation Law Found. of N.e.
v. Mosbacher, 966 F.2d 39, 42 (1st Cir. 1992) (discussing different Circuits’ approaches to the
“interest” required for intervention). The First Circuit has declined to adopt either of these
approaches, and opts instead for a fact-based, case-by-case determination. See id. at 41-42.
Consistent with the pragmatic approach counseled by the First Circuit, and cognizant of its
instruction to analyze the elements of Rule 24(a) intervention “in keeping with a commonsense
view of the overall litigation,” Patch, 136 F.3d at 204, the Court finds that the Future Applicants
do not, on these facts, have a sufficient interest in this litigation to warrant intervention as of
right under Rule 24(a).
2. Harvard Students
The current Harvard Students are in a different posture. In contrast to the Future
Applicants, these students were admitted to Harvard, chose to matriculate, and are currently
enrolled in the full-time undergraduate program at the College. Therefore, they have no
remaining interest in Harvard’s continued consideration of race and ethnicity with respect to
their own applications. Rather, their purported interest is in continuing to enjoy the academic and
personal benefits that they believe arise out of Harvard’s racially diverse student body, and their
desire to see an increase in the number and diversity of underrepresented minority groups
admitted to Harvard [ECF. No. 31-1, Exhibits 1.10-1.14]. Although this interest is less
speculative and less contingent than the interest articulated by the Future Applicants, it is still not
a significantly protectable interest. For the same reasons that the Future Applicants lack a
protectable interest in Harvard’s continued consideration of race in its admissions policies, so too
do the current Harvard Students. 5 Further, to the extent that the current Harvard Students have
any interest in the continued consideration of race in Harvard’s admissions process, they have
not established that Harvard may not adequately represent those interests, as more fully set forth
D. The Students Have Not Established Inadequate Representation
Both Harvard and SFFA argue that the Students are not entitled to intervene as of right,
because the Students have not demonstrated that Harvard may not adequately represent their
Although the Students rely on Conservation Law Foundation of New England, Inc. v.
Mosbacher, 966 F.2d 39 (1st Cir. 1992), for the proposition that intervention as of right does not
require a “legally cognizable” interest [ECF No. 42, p.3], the Mosbacher case does not stand for
interests. The Court agrees. The Students claim that their ultimate goal in this litigation is to
“ensure that Harvard retains the right to consider race in its admissions decisions to the full
extent allowed by law.” [ECF no. 31 p. 3]. Harvard shares this same objective and intends to
mount a “vigorous defense” of its admissions policies [ECF No. 38 p. 1]. Where, as here, “the
goals of the applicants are the same as those of the plaintiff or defendant,” “adequate
representation is presumed.” Daggett, 172 F.3d at 111. Although the Students advance several
arguments in support of Harvard’s inadequacy, none of these arguments is persuasive, and all are
speculative. Cf. Massachusetts Food Ass’n v. Massachusetts Alcoholic Beverages Control
Comm’n, 197 F.3d 560, 567 (1st Cir. 1999) (noting that burden of overcoming a presumption of
adequacy is on the would-be intervenor). In short, the Students have not sufficiently rebutted the
presumption of adequacy.
First, the Students suggest that their interests would not be adequately represented should
Harvard decide to settle this suit, or decline to appeal an unfavorable outcome. However, merely
speculating about this possibility does not establish inadequacy. See Daggett, 172 F.3d at 112
(noting that there was no indication Attorney General would “compromise or would decline to
appeal if victory were only partial”). Harvard has argued that it would be “inconceivable” for
Harvard to accede to SFFA’s demands [ECF No. 38, p. 4], and the Court agrees that this
possibility currently appears to be “extremely remote.” Patch, 136 F.3d at 208. Moreover, in the
unlikely event that Harvard settled this action or failed to appeal, the Students could renew their
motion to intervene at that point in time. See Massachusetts Food Ass’n, 197 F.3d at 568;
Daggett, 172 F.3d at 112.
In addition, the Students allege that even if Harvard is not inclined to settle, it may want
to “avoid politically sensitive topics” surrounding racial and ethnic diversity when defending its
admissions policies. In other words, the zealousness and thoroughness of Harvard’s defense may
be compromised by “concern over its public perception or by the need to serve myriad
constituencies such as alumni, faculty, and the academic community, who may all have differing
opinions about the propriety of the goal of achieving racial and ethnic diversity.” [ECF No. 31 p.
5]. The Students, however, do not cite any evidence to substantiate this fear. Further, courts have
held that “[i]t is not sufficient that the party seeking intervention merely disagrees with the
litigation strategy or objectives of the party representing its interests. Little Rock Sch. Dist. v. N.
Little Rock Sch. Dist., 378 F.3d 774, 780 (8th Cir. 2004). Thus, subtle differences in approach or
rationale in pursuit of a common goal do not demonstrate inadequacy.
The Students further argue that Harvard lacks the ability to defend its race-conscious
admissions policy adequately because “Harvard, as an institution, does not have the personal
experiences that Movants do with respect to race and ethnicity.” [ECF No. 31 p. 14]. This
argument is also unavailing. Harvard is perfectly capable of gathering and presenting evidence of
its students’ interests and experiences, and it is not necessary for these Students to intervene as
full-fledged litigants for this to occur. See Daggett, 172 F.3d at 113 (noting that there was “no
obvious reason why” the state defendant could not offer the testimony of the proposed
intervenors, treating them as friendly witnesses). However, to the extent that the Students’
individual experiences and viewpoints may be enlightening, the Court is more than willing to
permit the Students to participate as amici curiae, and to submit these views through
declarations, substantive briefs and, in appropriate cases, oral argument.
Next, the Students identify specific arguments that they claim Harvard is unlikely to
make in this litigation, and that the Students wish to present to the Court. For example, although
the Students support Harvard’s continued consideration of race and ethnicity, they oppose other
aspects of Harvard’s admissions policies and programs, including (1) Harvard’s reliance on SAT
scores; (2) the school’s “early admission” program; and (3) the so-called “legacy” factor,
pursuant to which Harvard sometimes considers whether an applicant’s parent(s) are alumni of
the school. The Students wish to argue that all of these policies have a negative impact on
minority applicants’ chances for admission, and that Harvard should be able to consider race and
ethnicity in its admissions decisions in order to offset or “remedy” the disparate impact of these
criteria [ECF No. 31 pp. 2, 5, 13-14]. As a preliminary matter, the Students do not clearly
explain why this “remedy” theory would be a constitutionally sufficient reason to uphold
Harvard’s admissions practices. 6 Furthermore, the Students’ interest in exposing the allegedly
disparate impact of other admissions criteria is already represented in this case, if not by
Harvard, then by SFFA. For example, SFFA alleges in its Complaint that Harvard’s alleged use
of “legacy” preferences, as well as other policies, has a disparate impact on minorities, and it
suggests that Harvard can achieve diversity in its student body without using race as a factor in
admissions decisions, by simply eliminating policies such as legacy preferences. [Complaint ¶¶
341-355, ECF No. 1]. Thus, such issues are likely to surface over the course of discovery, even
absent the Students’ intervention.
In the context of school admissions cases, the Supreme Court has recognized that achieving the
educational benefits of a more diverse student body may be a compelling interest justifying the
use of racial classifications. See Fisher v. Univ. of Texas at Austin, 133 S. Ct. 2411, 2417, 186 L.
Ed. 2d 474 (2013) (citing Grutter v. Bollinger, 539 U.S. 306, 325 (2003)). The Court, however,
has also suggested that a university may not employ racial classifications to remediate past
instances of discrimination or injustice, because a “university’s ‘broad mission [of] education’ is
incompatible with making the ‘judicial, legislative, or administrative findings of constitutional or
statutory violations’ necessary to justify remedial racial classification.” Id. at 2417 (alteration in
original) (quoting Regents of Univ. of California v. Bakke, 438 U.S. 265, 308-09 (1978) (opinion
of Powell, J.)).
The Court is also unpersuaded by the Students’ argument that “[t]he record reflects that
Harvard is unlikely to argue that achieving a critical mass of underrepresented minority students
is necessary to achieve diversity,” and to “reduce racial isolation and the spokesperson status of
minority students.” [ECF No. 42 p. 8]. In support of this statement, the Students cite the absence
of such arguments in Harvard’s amicus briefs filed in other school admissions cases, such as
Regents of the University of California v. Bakke, 438 U.S. 265 (1978); Grutter v. Bollinger, 539
U.S. 306 (2003); and Fisher v. University of Texas at Austin, 133 S.Ct. 2411 (2013). Critically,
however, Harvard’s admissions policies were not being challenged in those cases. The fact that
Harvard did not emphasize a particular argument in an amicus brief does not plausibly suggest
that it will fail to do so in this case, which mounts a full-scale challenge to its own admissions
policies. Further, the Court notes that any unique arguments the Students wish to advance can be
submitted via amicus briefs and their personal declarations. See Massachusetts Food Ass’n, 197
F.3d at 568 (noting that amici curiae can advise the court of missing arguments).
Overall, the Students have identified only relatively minor, and very speculative
divergences in interests, which do not establish that Harvard’s representation may be inadequate.
Although the burden of showing inadequacy has been described as a “minimal” one, B.
Fernandez & Hnos., Inc. v. Kellogg USA, Inc., 440 F.3d 541, 545 (1st Cir. 2006), this does not
mean that raising a mere possibility of inadequacy triggers an automatic right to intervene.
Because the elements of Rule 24(a) intervention must be considered holistically, Patch, 136 F.3d
at 204, the required showing of inadequacy “tend[s] to vary depending on the strength of the
interest [at stake].” Daggett, 172 F.3d at 113. “Courts might require very little ‘inadequacy’ if the
would-be intervenor’s home were at stake and a great deal if the interest were thin and widely
shared.” Id. at 113-14. Here, the Court has found that the Students lack a significantly
protectable interest in this litigation. But even assuming that they possessed some limited
interest, it would fall on the “thin and widely shared” end of the spectrum. Id. Given the relative
weakness of the Students’ purported interests, the potential inadequacies they cite are not
sufficiently compelling to warrant intervention as of right. The Students’ Motion to Intervene as
of right pursuant to Fed. R. Civ. P. 24(a) is therefore DENIED.
E. The Court Declines to Allow Permissive Intervention
In the alternative, the Students have moved for permissive intervention under Fed. R.
Civ. P. 24(b), which provides that a court may allow intervention upon a timely motion, “when
an applicant’s claim or defense and the main action have a question of law or fact in common.”
Daggett, 172 F.3d at 112-13; see Fed. R. Civ. P. 24(b)(1)(B). Permissive intervention, however,
is “wholly discretionary,” and the court should consider “whether intervention will prejudice the
existing parties or delay the action.” Glass Dimensions, Inc., 290 F.R.D. at 14; see Fed. R. Civ.
The Court declines to allow permissive intervention here, for a number of reasons. First,
as discussed earlier in this Memorandum, Harvard should adequately represent the interests of
both the Future Applicants and the Harvard Students in this litigation. Second, both SFFA and
Harvard have objected to the Students’ full-fledged intervention, citing concerns for expediency,
and, in Harvard’s case, privacy. Harvard is also concerned that the Future Applicants could
become privy to the inner workings of Harvard’s admissions process, which could pose an unfair
advantage. The Court shares the parties’ concerns. In their moving papers, the Students suggest
that if permitted to intervene, they will be “present and involved” in fact discovery, and that they
may gather evidence and present expert testimony beyond that sought by the parties [ECF No. 42
pp. 9-10]. In all likelihood, allowing fourteen Students to intervene as parties would further
complicate proceedings, lengthen the discovery process, add expense, and significantly delay the
ultimate resolution of this case. See Massachusetts Sch. of Law at Andover, Inc. v. United States,
118 F.3d 776, 782 (D.C. Cir. 1997) (noting that the “delay or prejudice” standard referenced in
Rule 24(b) captures “all the possible drawbacks of piling on parties; the concomitant issue
proliferation and confusion will 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”).
In sum, the Court finds that the Students’ intervention would add undue delay, cost, and
complexity to these proceedings, and that such intervention is unwarranted where Harvard
adequately represents the Students’ interests. See State v. Dir., U.S. Fish & Wildlife Serv., 262
F.3d 13, 21 (1st Cir. 2001) (affirming denial of permissive intervention, where district court felt
that intervention “would delay and complicate matters”); Daggett, 172 F.3d at 113 (deferring to
district court’s judgment on whether permissive intervention would cause disruption and delay).
Consequently, the Students’ Motion to Intervene pursuant to Fed. R. Civ. P. 24(b) is also
F. Amicus Curiae Status
Although the Students may not intervene in this case as parties, the Court will permit the
Students to participate as amici curiae. The role of an amicus curiae, meaning “friend of the
court,” is to “assist the court ‘in cases of general public interest by making suggestions to the
court, by providing supplementary assistance to existing counsel, and by insuring a complete and
plenary presentation of difficult issues so that the court may reach a proper decision.’” Sierra
Club v. Wagner, 581 F.Supp.2d 246, 250 n.1 (D.N.H. 2008) (quoting Newark Branch,
N.A.A.C.P. v. Town of Harrison, N.J., 940 F.2d 792, 808 (3d Cir. 1991)). The Court finds that
amicus status will be sufficient for the Students to present their views and arguments in this case.
As amici curiae, the Students will be permitted to submit their own declarations, file substantive
briefs on dispositive motions, and participate in oral arguments on those motions.
The Students argue that amicus status is not sufficient, because an amicus cannot “file
pleadings; create, extend, or enlarge an issue before the court; challenge the validity of
testimony; . . . challenge an injunction while it remains in effect;” gather evidence; or provide
expert testimony [ECF No. 42 p. 9]. Although this is not entirely accurate, the Court takes their
point. Nonetheless, the Students have not demonstrated any significantly protectable interest, or
sufficiently inadequate representation, to justify their full-scale participation in discovery.
Further, the Court has declined to permit discretionary intervention precisely because the
addition of fourteen additional parties propounding discovery, presenting expert testimony,
cross-examining witnesses, and participating in all other aspects of the adversary process would
inevitably slow and unduly complicate the progress of this litigation.
The Students also note that as amici, they would not have the right to appeal an adverse
decision. That may be true, but the Students would arguably lack standing to appeal even if the
Court were to permit intervention. “[A]n intervenor’s right to continue a suit in the absence of
the party on whose side intervention was permitted is contingent upon a showing by the
intervenor that he fulfills the requirements of Art[icle] III.” Diamond v. Charles, 476 U.S. 54, 68
(1986); see Rio Grande Silvery Minnow v. Keys, 46 F. App’x 929, 932-33 (10th Cir. 2002)
(unpublished) (holding that intervenors-appellants lacked Article III standing to appeal, where
they lacked injury in fact). The issue of Article III standing, however, is not presently before the
Court. In the unlikely event that Harvard declined to appeal from an unfavorable decision, the
would-be intervenors could renew their motion to intervene at that time. See Massachusetts Food
Ass’n, 197 F.3d at 568; Daggett, 172 F.3d at 112.
For the foregoing reasons, the Proposed Intervenors’ Motion to Intervene [ECF No. 30] is
DENIED; however, the Proposed Intervenors are granted leave to participate in this action as
amici curiae as follows: (1) amici curiae may, through their counsel, submit a brief or
memorandum of law not to exceed 30 pages, exclusive of exhibits, on any dispositive motion in
this case; (2) amici curiae may, through their counsel, participate in oral argument on any
dispositive motion in this case; (3) amici curiae may submit personal declarations or affidavits in
support of their memorandum of law, which may be accorded evidentiary weight if otherwise
proper; (4) as appropriate, the Defendant may take full advantage of amici curiae’s offers of
resources, evidence, or assistance, where doing so would help Defendant in preparation for and
during trial. However, amici curiae will not be granted leave to propound discovery, participate
in depositions, obtain copies of documents requested in discovery, or otherwise participate in
discovery in this case. Nor will amici curiae be permitted to participate in expert discovery or
present expert testimony. Should this case proceed to trial, amici curiae may file a motion to
participate in the proceedings, and the Court will consider the appropriate scope of participation
at that time.
Dated: June 15, 2015
/s/ Allison D. Burroughs
ALLISON D. BURROUGHS
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