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

Filing 541

RESPONSE to Motion re 518 MOTION Participate in Trial Proceedings , 532 MOTION To Participate In Trial filed by President and Fellows of Harvard College. (Waxman, Seth)

UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF MASSACHUSETTS
BOSTON DIVISION
STUDENTS FOR FAIR ADMISSIONS, INC.,
Civil Action No. 1:14-cv-14176-ADB

Plaintiff,
v.
PRESIDENT AND FELLOWS OF HARVARD
COLLEGE (HARVARD CORPORATION),
Defendant.

HARVARD’S RESPONSE TO MOTIONS OF
AMICI CURIAE TO PARTICIPATE IN TRIAL
Defendant President and Fellows of Harvard College (“Harvard”) hereby responds to the
Motion of Student Amici Curiae to Participate in Trial (Dkt. 518) (“Student Amici”) and the
Motion of Amici Curiae Harvard Student and Alumni Organizations to Participate in Trial (Dkt.
532) (“Organization Amici”) (collectively “Amici”). Harvard supports Amici’s request to
present testimony at trial. Harvard takes no position, however, with respect to the number of
witnesses Amici should be permitted to present or the number of hours allotted to such testimony
if Amici’s motions are granted, nor does it take any position with respect to Amici’s requests to
present opening and closing arguments, both of which are matters within the Court’s discretion.
Harvard opposes Student Amici’s request to cross-examine Students for Fair Admissions, Inc.’s
(“SFFA”) statistical expert, Professor Peter Arcidiacono. 1

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Organization Amici have not requested leave to cross-examine Professor Arcidiacono.
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ARGUMENT
Harvard supports Amici’s request to present testimony from Harvard students and
alumni, in recognition of Amici’s position that those witnesses can offer important and
distinctive perspectives on the importance of a racially diverse student body at Harvard. Harvard
has not sought to call students or alumni at trial out of respect for their privacy and other
considerations, but in light of Amici’s independent requests to testify, with the advice of their
legal counsel, Harvard recognizes that the proposed witnesses may provide testimony that would
be of use to the Court about the salience of race in the witnesses’ lived experiences, including
their time at Harvard. Harvard expects that the proposed witnesses will also be well positioned
to speak to the effect that student body diversity achieved through Harvard’s whole-person
admissions program—in which race is considered as one factor among many—has had on their
Harvard experience. Amici’s alumni witnesses can also offer testimony about the enduring
benefits conferred by their diverse Harvard experience, including the effects of this experience
on their professional and personal lives.
Harvard takes no position on the number of witnesses Amici should be allowed to call or
the appropriate duration of any such testimony. Such matters are firmly within the Court’s
discretion. See Bamberg v. Goldman Sachs & Co., No. 10-10932-PBS, 2013 WL 4812443, at *2
(D. Mass. Sept. 6, 2013) (“District courts may impose reasonable time limits on the presentation
of evidence ...” (quoting Borges v. Our Lady of the Sea Corp., 935 F.2d 436, 442–43 (1st Cir.
1991))); Animal Prot. Inst. v. Martin, No. CV-06-128 BW, 2007 WL 647567, at *1 (D. Me. Feb.
23, 2007) (“Although there are rules governing the participation of amicus curiae on appeal,
there is no provision in the Federal Rules of Civil Procedure as to the conditions under which a
trial court should permit amicus appearances and the restrictions, if any, that should attend its

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appearance.” (citations and internal quotations omitted)); Alliance of Auto. Mfrs. v. Gwadowsky,
297 F. Supp. 2d 305, 307 (D. Me. 2003) (holding that “[i]t remains within the discretion of the
court to determine the fact extent, and the manner of participation by the amicus” (citations and
internal quotations omitted)).
Harvard opposes Student Amici’s request to cross-examine Professor Arcidiacono,
because such cross-examination would likely be duplicative of Harvard’s cross-examination. In
their motion, Student Amici argue that they have “raised arguments challenging the analysis and
conclusions of Plaintiff’s expert Dr. Arcidiacono that are different than that of Harvard, and,
consistent with that, would raise unique issues on cross-examination.” Dkt. 518 at 3. Student
Amici do not specify, however, what “unique issues” they would raise on cross-examination that
Harvard would not also address. Indeed, Harvard’s interests are aligned with those of the
Student Amici; both Harvard and Student Amici oppose SFFA’s requested relief, which is to
enjoin Harvard from considering race in its undergraduate admissions process, id. (students
“disagree with the remedy SFFA seeks”), and Harvard is vigorously defending itself against
SFFA’s claims, including those purportedly supported by Professor Arcidiacono’s analyses, as
demonstrated by the robust analysis conducted by Harvard’s expert, Dr. David Card. Harvard
will therefore adequately represent Student Amici’s interests during its cross-examination of
Professor Arcidiacono. To the extent Student Amici have additional points about Professor
Arcidiacono’s testimony that they wish to make, Student Amici can raise them in a written
submission.
In addition, as non-parties, Student Amici have not had access to the datasets analyzed by
Professor Arcidiacono, and they did not participate in any of the expert depositions; nor do they
have the unredacted expert reports of both parties or the full deposition transcripts of both

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statistical experts and other witnesses. Harvard, by contrast, is fully immersed in the record and
has deposed Professor Arcidiacono before, and is therefore better situated to cross-examine
Professor Arcidiacono at trial. Given the expected length and complexity of the trial, Harvard
respectfully submits that there is no need to allow non-party amici to examine any party’s
witness. See Alliance of Auto. Mfrs., 297 F. Supp. 2d at 307-308 (granting amicus plus status but
prohibiting amicus plus from examining or cross-examining the same witness as the party).
CONCLUSION
For the foregoing reasons, Harvard: (1) supports Amici’s motion to offer testimony at
trial; (2) takes no position with respect to the number of witnesses Amici should be permitted to
call or the duration of such testimony if the motions are granted, or to Amici’s request to
participate in opening and closing arguments; and (3) opposes Student Amici’s motion to crossexamine SFFA’s expert witness Peter Arcidiacono.

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Respectfully submitted,
/s/ Seth P. Waxman
Seth P. Waxman (pro hac vice)
Danielle Conley (pro hac vice)
Paul R.Q. Wolfson (pro hac vice)
Brittany Amadi (pro hac vice)
Daniel Winik (pro hac vice)
WILMER CUTLER PICKERING
HALE AND DORR LLP
1875 Pennsylvania Ave. NW
Washington, D.C. 20006
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
William F. Lee (BBO #291960)
Felicia H. Ellsworth (BBO #665232)
Andrew S. Dulberg (BBO #675405)
Elizabeth Mooney (BBO #679522)
Sarah R. Frazier (BBO # 681656)
WILMER CUTLER PICKERING
HALE AND DORR LLP
60 State Street
Boston, MA 02109
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Debo P. Adegbile (pro hac vice)
WILMER CUTLER PICKERING
HALE AND DORR LLP
7 World Trade Center
250 Greenwich Street
New York, NY 10007
Tel: [phone]
Fax: [phone]
[e-mail]
Dated: September 14, 2018

Counsel for Defendant President and
Fellows of Harvard College

CERTIFICATE OF SERVICE
I hereby certify that this document filed through the CM/ECF system will be sent
electronically to the registered participants as identified on the Notice of Electronic Filing.
/s/ Seth P. Waxman
Seth P. Waxman