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

Filing 59

MEMORANDUM in Support re 58 MOTION to Stay filed by President and Fellows of Harvard College. (Attachments: # 1 Exhibit A)(Waxman, Seth)

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.

MEMORANDUM IN SUPPORT OF HARVARD’S MOTION TO STAY
Defendant President and Fellows of Harvard College (“Harvard”) respectfully moves for
a stay of this action pending the Supreme Court’s decision in Fisher v. University of Texas at
Austin, No. 14-981 (Fisher II). The Supreme Court granted certiorari in Fisher II on June 29,
2015 and will hear that case during its upcoming Term, with a decision likely no later than June
2016. The petitioner in Fisher II, represented by the same counsel as plaintiff in this case,
Students For Fair Admissions, Inc. (“SFFA”), is raising before the Supreme Court issues that
bear directly on this case. Staying proceedings in this case pending the Supreme Court’s
decision in Fisher II will promote efficient judicial administration and defer the immense
burdens of discovery in this case until the Supreme Court clarifies the applicable legal
framework and standards and provides material guidance regarding the law in this area that will
shape the analysis of this case before the Court. After Fisher II is decided, discovery and the
resolution of this matter can then proceed under the framework and standards articulated by the
Supreme Court in its decision in that case.

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I.

The Disposition Of Fisher Has The Potential To Significantly Affect This Litigation
Because Fisher II presents the Supreme Court with an opportunity to clarify the law

governing how public universities may consider race in the admissions process—as requested by
the petitioner in that case—it will almost certainly affect the standards that inform this
litigation. 1
This is not the first time the Supreme Court has granted review in Fisher. When the
Court first did so, several years ago, it clarified the standard of review for a public university’s
consideration of race in the admissions process and remanded for the Fifth Circuit to apply the
standard. Fisher v. University of Texas at Austin, 133 S. Ct. 2411 (2013) (Fisher I). On remand,
the Fifth Circuit held (as it had before) that the University of Texas’s holistic consideration of
race in admissions comported with the Equal Protection Clause. 758 F.3d 633 (5th Cir. 2014). It
is that decision after remand that the Supreme Court has now agreed to review. 2015 WL
629286 (U.S. June 29, 2015).
The petition for certiorari in Fisher II (attached as Exhibit A), filed by the same counsel
as represent SFFA here, asks the Supreme Court to clarify further how public universities may
permissibly consider race in admissions and how courts should review the universities’ actions.
Whatever guidance Fisher II provides is thus likely to inform the litigation and resolution of this
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Because Harvard is a private institution, it is not subject to the Equal Protection Clause,
which is at issue in Fisher II. Harvard is a recipient of federal funds and therefore subject to
Title VI of the Civil Rights Act of 1964. SFFA in its Complaint contends that Title VI
incorporates all aspects of the constitutional standard. See Complaint ¶ 402 (“An institution that
accepts federal funds violates Title VI when it engages in racial or ethnic discrimination that
violates the Equal Protection Clause[.]”). That question—whether Title VI, as applied to private
universities (which have their own rights under the First Amendment), incorporates every aspect
of case law under the Equal Protection Clause—is unsettled, and Harvard reserves the right to
argue that Title VI does not incorporate the Supreme Court’s equal-protection jurisprudence
wholesale. For present purposes, however, that potential issue does not lessen the need for a stay
of this case pending the decision in Fisher II, for any clarification or elaboration of the Supreme
Court’s constitutional standard in Fisher II will surely inform that question.
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action, which is part of the same attack by SFFA and its counsel on the use of race-conscious
policies in higher education admissions. SFFA has also sued the University of North Carolina
(“UNC”) in the Middle District of North Carolina, No. 1:14-cv-954, in a Complaint containing
allegations comparable to those levied against Harvard here and the University of Texas in
Fisher, similarly challenging UNC’s undergraduate admissions process and claiming that
process violates the Constitution and federal civil rights laws. 2 Fisher I, Fisher II, and the
lawsuits against Harvard and UNC present a multi-front challenge to the current legal standards
governing the consideration of race in admissions. Indeed, these lawsuits are so inextricably
linked that the plaintiffs in all three suits are backed by the same individual, Edward Blum, and
represented by the same counsel.
Further underscoring the relevance of Fisher II to this action, SFFA bases its Complaint
largely on the premise that Harvard’s admissions policy cannot survive the standard set forth in
Fisher I—the standard that SFFA’s own counsel are now asking the Supreme Court to clarify in
Fisher II. Not surprisingly, then, the questions before the Supreme Court in Fisher II are closely
related to those in this case:
•

The petition for certiorari in Fisher II argues that a university’s decision to consider race
in admissions must be measured against the reasons that the university expressed at the
time of making that decision. Petition for Certiorari, Fisher v. University of Texas at
Austin (U.S. Feb. 10, 2015) (No. 14-981) (“Fisher II Pet.”) 14-19. Similarly, SFFA
alleges in this case that Harvard’s admissions practices violate Title VI on the theory that
it did not “stud[y] all of the available race-neutral alternatives and ha[ve] a strong basis in

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Harvard understands that UNC also intends to move for a stay of that action in light of
the Supreme Court’s grant of certiorari in Fisher II.
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evidence that none would work about as well as a race-based approach before turning to
racial preferences.” Complaint ¶ 483.
•

The petition for certiorari in Fisher II asks the Supreme Court to reject the University of
Texas’s assertion of a “qualitative” interest in diversity, arguing that the attainment of
diversity must be measured in a precise, quantitative manner. Fisher II Pet. 19-25. Here,
SFFA similarly alleges that “Harvard is not pursuing the critical-mass interest found
permissible in Grutter.” Complaint ¶ 427.

•

The petition for certiorari in Fisher II argues that a university may not consider race as a
factor in all of its admissions decisions but may do so only for a small subset of
applicants. Fisher II Pet. 25-29. In this case, SFFA devotes an entire count of its
Complaint to the allegation that Harvard “does not merely use race as a factor in filling
the last ‘few places’ in the entering freshman class.” Complaint ¶ 467; see id. ¶¶ 466476.

•

Although the petition for certiorari in Fisher II does not ask the Supreme Court to
overrule any of its precedents, it argues that if the University of Texas can prevail under
those precedents, “the Court will need to rethink its endorsement of” diversity as a
compelling interest sufficient to justify a public university’s consideration of race in
admissions. Fisher II Pet. 30. Here, SFFA urges that “[a]ny decision allowing the use of
racial preferences in the educational setting should be overruled.” Complaint ¶ 502.
Thus, although Harvard is confident that its admissions process comports with Title VI

and the Constitution, the Supreme Court’s decision in Fisher II is very likely to shape the legal
standards that govern SFFA’s theory of this case. That upcoming clarification of the law by the
Supreme Court has at least two important consequences for the litigation of this case.

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First, by clarifying the importance—or unimportance—of various facts under the
constitutional standard, Fisher II is likely to affect both fact and expert discovery in this case.
Fisher II may affect the discovery that the parties seek from each other to establish their claims
and defenses, the issues that the parties ask their testifying experts to address, and the parties’
strategies in seeking and using all that information. For example, to the extent Fisher II clarifies
whether and how a university may define diversity in a “qualitative” manner, it will undoubtedly
shape the types of discovery that SFFA will take about how Harvard defines its interest in a
diverse student body and how it pursues that interest through its admissions process. SFFA has
already propounded discovery requests of sweeping breadth and intrusiveness—for example,
seeking 6,400 full applicant files as a preliminary sample and the electronically stored
information of no fewer than 54 custodians over four years. Harvard does not regard the
discovery that SFFA currently seeks as appropriate, but to permit even a subset of this discovery
to go forward for a full year before the Supreme Court issues an opinion that will clarify the
applicable legal standards—and possibly to open the door to even more discovery later, to
account for the guidance the Supreme Court has provided—would be a monumental waste of the
parties’ and the Court’s resources. Additionally, the Supreme Court will undoubtedly clarify the
contours of narrow tailoring in Fisher II, providing guidance that will affect the type of evidence
SFFA seeks and the evidence that Harvard may wish to present to show that it permissibly
considers race in its holistic admissions process and that no race-neutral alternatives would
achieve the level of diversity in its undergraduate student body required to satisfy its educational
objectives.
Second, the Supreme Court’s decision in Fisher II may (as requested by the petitioner)
alter the legal standard for the use of race in university admissions. A change in that legal

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standard—which Harvard does not believe is warranted—would require Harvard (even in the
absence of this pending litigation) to review and evaluate whether its admissions process
comports with that standard. If that review causes Harvard to change its admissions policies and
practices in any way, the discovery SFFA currently seeks—as to Harvard’s existing admissions
policies and practices—would become largely irrelevant. SFFA’s forward-looking claims for
injunctive and declaratory relief against Harvard’s current admissions process would be moot if
Harvard were to alter that process, and SFFA does not seek retrospective relief. SFFA could
certainly choose to pursue a new claim against Harvard’s revised undergraduate admissions
process, but the fact and expert discovery in such a suit would be completely different from the
discovery in this case. The Court should not allow the sweeping discovery that SFFA seeks to
pursue in this case to go forward at all, but it certainly should not do so before Harvard has had
the opportunity to review its admissions process in light of the Supreme Court’s forthcoming
guidance and to determine whether any revision to that process is necessary.
II.

A Stay Is Warranted Under These Circumstances
This Court “is vested with the power ‘to control the disposition of the causes on its

docket with economy of time and effort for itself, for counsel, and for litigants.’” New Balance
Athletic Shoe, Inc. v. Converse, Inc., No. 14-cv-14715, 2015 WL 685070, at *1 (D. Mass. Feb.
18, 2015) (quoting Landis v. N. Am. Co., 299 U.S. 248, 254 (1936)); see also, e.g., Marquis v.
FDIC, 965 F.2d 1148, 1154 (1st Cir. 1992) (“It is beyond cavil that, absent a statute or rule to the
contrary, federal district courts possess the inherent power to stay pending litigation when the
efficacious management of court dockets reasonably requires such intervention.”). The Court
may “stay proceedings in its discretion through ‘the exercise of judgment, which must weigh
competing interests[.]’” New Balance, 2015 WL 685070, at *1 (quoting Landis, 299 U.S. at
254-255); see id. at *2-*3 (staying action pending related proceedings). As the First Circuit has
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explained, a district court may stay a given action “pending resolution of another” even if the
other action would “‘not dispose of all the questions involved,’” as long as it would “narrow the
issues in the pending cas[e] and assist in the determination of the questions of law involved.’”
Taunton Gardens Co. v. Hills, 557 F.2d 877, 879 (1st Cir. 1977) (quoting Landis, 299 U.S. at
253).
A stay pending the Supreme Court’s decision in Fisher II would serve the interests of
justice and of efficient judicial administration by avoiding the immense costs and burdens of
discovery until the Supreme Court has clarified the law that will shape the discovery and affect
the legal standards in this case. A stay will not unduly prejudice SFFA in light of the early stage
of this litigation. Numerous other courts have stayed litigation in parallel situations. See, e.g.,
Cardenas v. AmeriCredit Fin. Servs. Inc., No. 09-cv-4978, 2011 WL 846070, at *3 (N.D. Cal.
Mar. 8, 2011) (staying litigation pending the Supreme Court’s decision in AT&T Mobility LLC v.
Concepcion, 131 S. Ct. 1740 (2011), because of the “possib[ility] that the Supreme Court
[would] provide general guidance on” the key question of law); Cent. Valley Chrysler-Jeep, Inc.
v. Witherspoon, No. 04-cv-6663, 2007 WL 135688, at *11 (E.D. Cal. Jan. 16, 2007) (staying
litigation pending the Supreme Court’s decision in Massachusetts v. EPA, 549 U.S. 497 (2007),
on the basis “that the legal issues in this case will be greatly simplified if the Supreme Court
reaches the merits of the Massachusetts v. EPA case”); In re Literary Works in Electronic
Databases Copyright Litigation, No. M-21-90, 2001 WL 204212, at *3 (S.D.N.Y. Mar. 1, 2001)
(“The Supreme Court’s review of Tasini is likely to have a significant, if not dispositive, impact
on the cases here. Proceeding with this litigation several months before the Supreme Court more
precisely defines the claims at issue would be unnecessarily wasteful of both the Court’s and the
litigants’ resources.”); Sikhs for Justice v. Nath, 893 F. Supp. 2d 598, 622 (S.D.N.Y. 2012) (a

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court may “properly exercise its staying power when a higher court is close to settling an
important issue of law bearing on the action”); Carter v. U.S., No. 06-cv-225, 2007 WL
2439500, at *3 (D. Vt. Aug. 23, 2007) (“It is common practice in [the Second] Circuit to
postpone the final disposition of a case pending an upcoming decision in the United States
Supreme Court.”). This Court should follow these examples and stay this litigation pending the
Supreme Court’s resolution of Fisher II.

/s/ Seth P. Waxman
Seth P. Waxman (pro hac vice)
Paul R.Q. Wolfson (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]
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]
Felicia H. Ellsworth (BBO #665232)
WILMER CUTLER PICKERING
HALE AND DORR LLP
60 State Street
Boston, MA 02109
Tel: [phone]
Fax: [phone]
[e-mail]

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Dated: July 6, 2015

Counsel for Defendant President and
Fellows of Harvard College

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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 and
that paper copies will be sent to those indicated as non-registered participants on July 6, 2015.
/s/ Seth P. Waxman
Seth P. Waxman

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