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

Filing 562

Assented to MOTION for Leave to File Reply by 21 Colorful Crimson, Association of Black Harvard Women, Coalition for a Diverse Harvard, First Generation Harvard Alumni, Fuerza Latina of Harvard, Harvard Asian American Alumni Alliance, Harvard Asian American Brotherhood, Harvard Black Alumni Society, 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. (Attachments: # 1 Exhibit Proposed Reply)(Holmes, Jennifer)

EXHIBIT 1

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 IN SUPPORT OF
MOTION OF AMICI CURIAE
HARVARD STUDENT AND ALUMNI ORGANIZATIONS
TO PARTICIPATE IN TRIAL
Plaintiff Students for Fair Admissions (“SFFA”) offers no compelling reason why 25
Harvard student and alumni organizations (“Amici Organizations”), which play a crucial role in
fostering cross-cultural engagement on campus and rely on a diverse student body to survive,
should be precluded from offering their unique perspective to the Court during trial. First, SFFA
misconstrues Amici Organizations’ request for limited involvement in trial as a request for party
status. Second, SFFA fails to acknowledge what the Court has already recognized: that Amici
Organizations (as well as Student Amici) occupy a unique position in this case that makes them
distinct from other amici.

Finally, contrary to SFFA’s claims, the limited involvement

contemplated by Amici Organizations’ motion will not disrupt judicial efficiency and will only
minimally enlarge the trial.

Amici Organizations have never sought to obtain party status in this case. Rather, they
request a limited role at trial commensurate with their unique institutional knowledge about the
need for—and benefits of—racial and ethnic diversity at Harvard and their direct interest in the
outcome of the case. The Court has already recognized the unique position of Amici Organizations
by granting them amicus plus status, similar to that of the Student Amici. See ECF Nos. 465 &
516. The Court also contemplated that such amici could move to participate at trial. See ECF No.
52 at 23. This approach makes sense because Amici Organizations are not “typical” amici. Other
amici in this case—such as economists, social scientists, other colleges and universities, and
academics—have provided helpful information in amicus briefs but, unlike Amici Organizations,
lack a direct connection to Harvard and will not be directly affected by the resolution of this case.
Should SFFA prevail, the predicted drop in admission of students of color from underrepresented
groups would decimate the membership ranks of many Amici Organizations and deeply hinder
their ability to serve students of color and promote cultural awareness and exchange. Moreover,
part of Amici Organizations’ institutional missions is to ensure that Harvard supports and benefits
from the racial and ethnic diversity of its students and alumni, and those missions will be directly
affected by the Court’s ruling in this case. Amici Organizations’ interest in this action, therefore,
goes beyond “an interest in the educational benefits of diversity.” Pl.’s Opp’n to Amici Orgs.’
Mot. to Participate in Trial (ECF No. 550) (“Opp’n”) at 2. For some Amici Organizations, this
case presents an existential threat, and its outcome will determine whether the groups continue to
exist and flourish on campus and whether they can fulfill their institutional goals.
In addition, Amici Organizations will offer facts and perspectives that would otherwise be
absent from the trial. Collectively, Amici Organizations have long-term institutional knowledge
about the student experience of diversity on Harvard’s campus, including from past years when

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such diversity was grossly insufficient. Although SFFA claims they have no personal knowledge
of the admissions process, Opp’n at 1, many Amici Organizations engage in recruitment of
prospective students, have members who have participated in and coordinated alumni interviews,
and have historically lobbied Harvard to increase diversity in its admissions process—not to
mention the fact that every organizational member personally went through Harvard’s admissions
process and can reflect on that experience. Moreover, Amici Organizations play an instrumental
role in helping Harvard and its students realize the educational benefits of a diverse campus.
Testimony about how these organizations facilitate cross-cultural engagement; serve as a forum
for dialogue, education, and debate; and engage in advocacy on behalf of communities of color
will help develop a thorough and concrete trial record about how Harvard reaps the benefits of a
diverse campus and what would be lost should Harvard be unable to maintain such diversity.
Further, contrary to SFFA’s claims, Amici Organizations’ involvement at trial will not
undermine judicial efficiency or delay the progress of trial. Collectively, Amici Organizations’
proposed testimony and presentation of opening and closing statements amounts to less than a day
of trial, perhaps significantly less. Amici Organizations can also adjust their timing and/or number
of witnesses according to the Court’s needs and preferences. When weighed against the gravity
of the matters at stake in this litigation, and the importance of a robust trial record in a case that
will almost certainly face appellate scrutiny, this modest enlargement of trial is justified. Although
concerns about judicial efficiency are valid, “concerns that the case be decided on the basis of a
fully developed factual record and briefing, or at least as full as the circumstances permit, may
carry similar weight” when the case involves “significant and difficult” “constitutional issues.”
Daggett v. Comm’n on Gov’t Ethics & Election Practices, 172 F.3d 104-115 (1st Cir. 1999). In
such cases, amicus “participation restricted to briefing of legal issues in amicus briefs may prove

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to be least satisfactory,” and “some courts have offered proposed intervenors ‘amicus-plus’ status,
or the right to call and cross-examine witnesses as well as to submit briefs.” Id. Such amicus
participation is not “rare” in this Circuit and others. See, e.g., Maine v. Dir., U.S. Fish & Wildlife
Serv., 262 F.3d 13, 14 (1st Cir. 2001) (granting amici-plus a “limited right to call and crossexamine witnesses”); Daggett v. Webster, 190 F.R.D. 12, 14 (D. Me. 1999) (permitting amici to
examine and cross-examine witnesses); see also United States v. Hooker Chems. & Plastics Corp.,
749 F.2d 968, 992 (2d Cir. 1984) (affirming ruling that offered proposed intervenors an “elevated
amicus status” that included allowing them to call their own witnesses and to cross-examine the
witnesses); Hoptowit v. Ray, 682 F.2d 1237, 1260 (9th Cir. 1982) (affirming ruling granting amicus
“participat[ion] in the case with the full rights of parties”); Moore’s Federal Practice 3d § 24.23[2],
at 24-88 (“Amicus status allows the applicant to present legal argument, and, in some cases, to call
and cross-examine witnesses.”).
Finally, Harvard supports the presentation of Amici Organization witnesses and took no
position on whether counsel for Amici Organizations can present opening and closing statements.
See ECF No. 541 at 1. Harvard declined to present student or alumni testimony itself “out of
respect for their privacy and other concerns,” but expressed no desire to exclude their voices from
trial. Id. at 2. Indeed, Harvard recognized the usefulness to the Court to hear testimony from
Amici Organization witnesses regarding the “salience of race in the witnesses’ lived experiences,
including their time at Harvard,” “the effect that student body diversity achieved through
Harvard’s whole-person admissions program” that includes race as one of many factors, and “the
enduring benefits conferred by their diverse Harvard experience, including the effects of this
experience on their professional and personal lives.” Id. Moreover, if SFFA would have no
objection to the presentation of these witnesses if put on by Harvard’s counsel, then its purported

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concerns about judicial efficiency and delay ring hollow. Thus, one may surmise that SFFA
objects to Amici Organizations’ participation in trial merely because the testimony may not
advance SFFA’s own self-interests, rather than based on issues of relevance or judicial efficiency.
CONCLUSION
For the foregoing reasons and those articulated in the Motion, Amici Organizations
respectfully request that the Court grant their Motion to Participate at Trial.
Respectfully submitted,
/s/ Jennifer A. Holmes
Jennifer A. Holmes *
Michaele N. Turnage Young*
NAACP Legal Defense &
Educational Fund, Inc.
700 14th Street NW, Suite 600
Washington, DC 20005
[phone]
Sherrilyn Ifill*
Janai Nelson*
Samuel Spital*
Jin Hee Lee*
Rachel Kleinman*
Cara McClellan*
Earl Kirkland*
NAACP Legal Defense &
Educational Fund, Inc.
40 Rector Street, 5th Floor
New York, NY 10006
[phone]
/s/ Kenneth N. Thayer
Kenneth N. Thayer, BBO #671029
[e-mail]
Kate R. Cook, BBO #650698
[e-mail]
Sugarman, Rogers, Barshak & Cohen, P.C.
101 Merrimac Street (9th floor)
Boston, MA 02114-4737
[phone]

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Counsel for Amici Curiae 21 Colorful
Crimson, Harvard Black Alumni Society,
Association of Black Harvard Women,
Coalition for a Diverse Harvard, First
Generation Harvard Alumni, Fuerza Latina
of Harvard, Harvard Asian American
Alumni Alliance, 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, and Task Force on Asian
and Pacific American Studies at Harvard
College.
*Admitted Pro Hac Vice

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CERTIFICATE OF SERVICE
I hereby certify that on the 27th of September 2018, a copy of the above and foregoing
[PROPOSED] REPLY IN SUPPORT OF MOTION OF AMICI CURIAE HARVARD STUDENT
AND ALUMNI ORGANIZATIONS TO PARTICIPATE IN TRIAL 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/ Jennifer A. Holmes
Jennifer A. Holmes*
NAACP Legal Defense &
Educational Fund, Inc.
700 14th Street NW, Suite 600
Washington, DC 20005
[phone]
*Admitted Pro Hac Vice

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