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

Filing 71

Opposition re 58 MOTION to Stay filed by Students for Fair Admissions, Inc.. (Strawbridge, Patrick)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

STUDENTS FOR FAIR ADMISSIONS, INC.,
Plaintiff,
v.

Civil Action No.
1:14-cv-14176ADB

PRESIDENT AND FELLOWS OF HARVARD
COLLEGE (HARVARD CORPORATION),
Defendant.
PLAINTIFF’S OPPOSITION TO MOTION TO STAY
Plaintiff Students for Fair Admissions, Inc. (“SFFA”) respectfully requests that
the Court deny the Motion for Stay filed by Defendant President and Fellows of Harvard
College (“Harvard”).
I.

Introduction
Harvard’s request for a stay pending a decision in Fisher v. University of Texas at

Austin, No. 14-981 (“Fisher II”), is baseless. Harvard grossly exaggerates the overlap
between Fisher II and this case. But the Court need not resolve that dispute. Where a stay
would harm the non-moving party, as here, it must be denied absent a clear case of
hardship. Harvard cannot meet that standard. Whatever the Supreme Court says in Fisher
II, Harvard will still have to prove that its use of race in admissions satisfies strict
scrutiny. There is no reason to delay discovery that is inevitable. Any marginal impact
Fisher II might have on the legal standard can be accommodated under the existing
summary-judgment schedule. Harvard’s motion should be denied.

1

II.

Legal Standard
Although “[f]ederal courts have the inherent power to stay an action … this

inherent power … must be balanced against the federal courts’ ‘strict duty to exercise the
jurisdiction that is conferred upon them by Congress.’” Goldhammer v. Dunkin’ Donuts,
Inc., 59 F. Supp. 2d 248, 251 (D. Mass. 1999) (quoting Quackenbush v. Allstate Ins. Co.,
517 U.S. 706, 716 (1996)). “Only in rare circumstances” then “will a litigant in one cause
be compelled to stand aside” while another proceeds—even if the other case will “settle[]
the rule of law that will define the rights of both.” Landis v. N. Am. Co., 299 U.S. 248,
255 (1936). Therefore, a stay “is rarely appropriate” when the parallel litigation “will not
dispose of the entire case.” Chavous v. D.C. Fin. Responsibility & Mgmt. Assistance
Auth., 201 F.R.D. 1, 3 (D.D.C. 2001) (citations and quotations omitted); see also Consol.
Edison Co. of New York v. United States, 30 F. Supp. 2d 385, 389 (S.D.N.Y. 1998) (“A
stay is as much a refusal to exercise federal jurisdiction as a dismissal. When a district
court decides to dismiss or stay, it presumably concludes that the parallel litigation will
be an adequate vehicle for the complete resolution of the issues between the parties.”)
(citation omitted)).
“The proponent of a stay” therefore “bears the burden of establishing its need.”
Clinton v. Jones, 520 U.S. 681, 708 (1997). In deciding whether to grant a stay, this
Court considers the: “(1) potential prejudice to the non-moving party; (2) hardship and
inequity to the moving party without a stay; and, (3) judicial economy.” Alves v. Prospect
Mortgage, LLC, 2013 WL 5755465, at *2 (D. Mass. Oct. 22, 2013) (citations and
quotations omitted). But these are not co-equal factors. The proponent “must make out a
clear case of hardship or inequity in being required to go forward, if there is even a fair
possibility that the stay for which he prays will work damage to some one else.” Landis,

2

299 U.S. at 255 (emphasis added). Further, a stay is especially difficult to secure in cases
where the plaintiff has “alleged … continuing harm and sought … injunctive or
declaratory relief.” Lockyer v. Mirant Corp., 398 F.3d 1098, 1110 (9th Cir. 2005). Such
cases are distinguishable from those where only damages are at issue. Id.
III.

A Stay Is Unjustified Even Accepting Harvard’s Conception of the Overlap
Between This Case and Fisher II.
Harvard argues that a stay is appropriate because Fisher II raises issues that “bear

directly on this case.” Memorandum in Support of Harvard’s Motion for Stay (“Mot.”) at
1. That is a gross overstatement of the relationship between the two cases. See infra at 1115. But the Court need not resolve the dispute over Fisher II’s potential impact on the
legal issues raised in this case to deny Harvard’s stay motion. As explained below, the
motion is meritless even assuming that Fisher II will “clarify the law” and “affect the
standards that inform this litigation.” Mot. at 2.
First, there is far more than a “fair chance” that granting Harvard’s motion will
harm SFFA—it is a certainty. SFFA has brought this suit on behalf of its members who
allege a direct and concrete injury as a result of Harvard’s admissions policies. See
Complaint ¶¶ 15-28. Those members include applicants Harvard has rejected, high school
students who plan to apply to Harvard in the coming months and years, and the parents of
both rejected and future applicants. See id. These members will have their equalprotection rights prejudiced if resolution of this case is delayed by a year. This is
especially true for those SFFA members who will be applying either for transfer or
undergraduate admission in the 2016-2017 cycle—the first admissions cycle in which a
judgment in SFFA’s favor likely would take effect. For some of these applicants, then, a

3

one-year delay means losing forever the “opportunity to compete for admission on an
equal basis.” Gratz v. Bollinger, 539 U.S. 244, 262 (2003).
Remarkably, Harvard gives the shortest of shrift to the potential harm to SFFA’s
members; in fact, Harvard nowhere even uses the words “harm” or “hardship,” let alone
bothers to analyze the impact of its request for a year-long pause in this litigation.
Harvard would prefer to make the case about the attorneys, individuals, and non-profit
organizations advocating on these applicants’ behalf. See Mot. 3. It is disconcerting that
Harvard believes the outcome of this stay request (and perhaps other aspects of this case)
should be influenced by SFFA’s litigation strategy, the decision of its President to
support Ms. Fisher, or its choice of counsel. This litigation tactic is not new. See, e.g.,
NAACP v. Button, 371 U.S. 415, 429 (1963); Mark Tushnet, Some Legacies of Brown v.
Board of Education, 90 Va. L. Rev. 1694, 1701 (2004).
In reality, this case is about Harvard’s discriminatory policies and the countless
applicants these policies harm. SFFA’s members are entitled to a judicial determination
as to whether the process to which they have been (and soon will be) subjected “is fair
and constitutional in every phase of implementation.” Grutter v. Bollinger, 539 U.S. 306,
394 (2003) (Kennedy, J., dissenting). That some of them would be denied that right as a
result of a stay is reason enough to deny Harvard’s motion. See Hines v. D’Artois, 531
F.2d 726, 737 (5th Cir. 1976) (“We must always have great respect for a trial court’s
judicial discretion in the control of its docket, but we cannot abdicate our roles in
monitoring that discretion to prevent the ossification of rights which attends inordinate
delay. . . . If plaintiffs were not to be permitted forthwith to tell their story to the court,
the tale might be stale indeed by the time it reached judicial ears.”). After all, “it is well-

4

established that … a stay should not be for an indefinite period of time.” In re Lernout &
Hauspie Securities Litig., 2003 WL 23341390, at *2 (D. Mass. June 12, 2003). For these
applicants, the stay would not only be indefinite; it would operate as a dismissal.
But even those applicants who will “only” have vindication of their constitutional
rights delayed will suffer harm sufficient to defeat Harvard’s motion. Stays are
disfavored in civil-rights cases, see Costantino v. City of Atl. City, 2015 WL 668161, at
*3-8 (D.N.J. Feb. 17, 2015), as such delay materially impairs pursuit of claims Congress
and the public consider “profoundly important,” see Kelly v. City of San Jose, 114 F.R.D.
653, 660 (N.D. Cal. 1987). “While the stay is in effect, through no fault of the parties,
relevant evidence could be lost or destroyed, memories could fade, and pertinent
witnesses could move out of the jurisdiction.” I.K. ex rel. E.K. v. Sylvan Union Sch. Dist.,
681 F. Supp. 2d 1179, 1193 (E.D. Cal. 2010) (citation omitted); see New York v. Hill, 528
U.S. 110, 117 (2000) (“Delay can lead to a less accurate outcome as witnesses become
unavailable and memories fade.”). Delay is a particular concern where, as here, many of
the “relevant documents … are not computerized” given that it puts them at greater “risk
of being lost or misplaced.” Costantino, 2015 WL 668161, at *4. In sum, there is a
certainty, not merely a “fair chance,” that a stay will damage SFFA.1
Second, Harvard cannot make out a clear case of hardship or inequity it will suffer
in the absence of a stay. Harvard claims that “Fisher II is likely to affect both fact and

1
Most of Harvard’s cases are distinguishable on this ground. In some, it appears
that most or all of the non-moving parties agreed to the stay. See In re Literary Works in
Electronic Databases Copyright Litigation, No. 21-90, 2001 WL 204212, at *3
(S.D.N.Y. Mar. 1, 2001); Carter v. United States, No. 06-225, 2007 WL 2439500, at *2
(D. Vt. Aug. 23, 2007). In others, the stay imposed minimal or no harm upon the nonmoving party. See Sikhs for Justice v. Nath, 893 F. Supp. 2d 598, 622 (S.D.N.Y. 2012);
Cent. Valley Chrysler-Jeep, Inc. v. Witherspoon, No. 04-6663, 2007 WL 135688, at *14
(E.D. Cal. Jan. 16, 2007).

5

expert discovery in this case.” Mot. at 5. That is not only wrong, see infra at 7-11, it is
beside the point. Harvard does not argue, for example, that Fisher II will make the
discovery SFFA currently seeks inappropriate or duplicative. See, e.g., Wittman v. Aetna
Health, Inc., 2014 WL 4772666, at *2 (D. Me. Sept. 24, 2014). Harvard mainly argues
that the decision in Fisher II might “possibly … open the door to additional discovery”—
not that Fisher II would render discovery currently being sought wasteful or irrelevant.
Mot. at 5. There is no reason to “defer the immense burdens of discovery,” Mot. at 1,
when those same burdens (and perhaps new ones based on the inclusion of an additional
admissions cycle) will be there waiting one year later. In any event, even the “possibility
of duplicative discovery does not establish a clear case of hardship in the face of
Plaintiff’s objections to the stay.” Hunt Const. Grp., Inc. v. Brennan Beer
Gorman/Architects, LLP, 2009 WL 2424529, at *1 (D. Vt. Aug. 5, 2009). Harvard’s
argument as to the burdens of hypothetical additional discovery after Fisher II is even
weaker.2
The only other argument Harvard offers as to the possibility of hardship is that
Fisher II might “cause Harvard to change its admissions policies and practices” in a way
that would “moot” SFFA’s claims. Mot. at 6. Here too, even aside from Harvard’s
mischaracterization of Fisher II, the argument is disingenuous. SFFA has filed suit
challenging “Harvard’s existing admissions policies and practices.” Mot. at 6. It is
therefore true that this case would be over if Harvard is unable to defend its existing

2
The potential burdens that the stay avoided in Cardenas v. AmeriCredit Fin.
Servs. Inc., No. 09-4978, 2011 WL 846070 (N.D. Cal. Mar. 8, 2011), the other case upon
which Harvard relies, were markedly different. There, the district court stayed the case
because the issue—the enforceability of an arbitration clause—could require the
dismissal of the case from Court. See id. at *4. Harvard does not (and cannot) make such
a claim here.

6

policies in the wake of Fisher II. But that would be because SFFA would be entitled to
judgment as a matter of law (along with the accompanying declaratory and injunctive
relief)—not because SFFA’s claim would “become largely irrelevant.” Id.; see City of
Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289 (1982) (“It is well settled that a
defendant’s voluntary cessation of a challenged practice does not deprive a federal court
of its power to determine the legality of the practice.”). The idea that Harvard is entitled
to a stay so it can wait and see if the Supreme Court’s decision in Fisher II makes any
defense of its admissions system impossible is absurd.
Harvard’s argument is made even more galling by its conspicuous reservation of
the option to argue later that Fisher II is not controlling with respect to it. Mot. 2 n.1.
Harvard argues that its policies would not be impaired even if Fisher II outlaws racial
preferences in admissions because, as a private institution, it is subject to Title VI, not the
Fourteenth Amendment. The argument is not just legally indefensible, see Gratz, 539
U.S. at 275 n.23, but Harvard’s intention to pursue it thoroughly discredits the stay
request. Harvard cannot credibly seek a stay pending the outcome of a case while
reserving the right not to be bound by the outcome. Indeed, Harvard cannot conceive of
any outcome in Fisher II that would terminate these proceedings. This Court cannot
accept Harvard’s claim that Fisher II could change everything while knowing that
Harvard will claim that Fisher II changed nothing as soon as the stay is lifted.
Third, a stay will not advance judicial economy. Harvard argues it would be
inefficient to proceed because “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

7

information.” Mot. at 5. Harvard is wrong three times over: Fisher II will not impact fact
discovery, it will not impact expert discovery, and any guidance the opinion provides as
to the applicable legal standard can be addressed in the parties’ summary-judgment
briefing under the established schedule.
As an initial matter, whatever impact Harvard (incorrectly) believes Fisher II will
have on the legal standard, it will not affect fact discovery. The point of discovery is to
build a comprehensive record. See United States v. 23.76 Acres of Land, 32 F.R.D. 593,
596 (D. Md. 1963) (“It is the rare law suit in which there are not at least two versions of a
single transaction or occurrence. The purpose of discovery is to permit each party to learn
of the other party’s version.”). Fisher II will not alter the facts of this case. It will not
alter Harvard’s reasons for having chosen to consider race in admissions decisions. It will
not alter how Harvard has used and currently uses race in its admissions process. And it
will not alter Harvard’s reasons for having determined that there are no workable raceneutral alternatives to using race.
But even if Fisher II refines the applicable legal standard in some way that
impacts the kind of facts that might be admissible on summary judgment or at trial, it still
would not impact the scope of fact discovery. “The Federal Rules of Civil Procedure
contemplate open and generous discovery.” McCarron v. J.P. Morgan Sec., Inc., 2008
WL 2066940, at *2 (D. Mass. May 14, 2008) (citations omitted); see also Fed. R. Civ. P.
26(b)(1) (“Relevant information need not be admissible at the trial if the discovery
appears reasonably calculated to lead to the discovery of admissible evidence.”). In short,
“relevancy is broadly construed at the discovery stage of litigation and a request for
discovery should be considered relevant if there is any possibility that the information

8

sought may be relevant to the subject matter of the action.” Gagne v. Reddy, 104 F.R.D.
454, 456 (D. Mass. 1984). Harvard cannot credibly contend that Fisher II will so
fundamentally alter the legal standard as to make otherwise irrelevant facts relevant or
vice versa.
Indeed, Harvard barely tries to do so. Harvard offers no argument as to how
Fisher II will impact any discovery it plans to take of SFFA. As for SFFA’s discovery
requests, all Harvard will say is that Fisher II may clarify the legal standard on
“qualitative” diversity, which, in turn, could shape discovery on that issue. Mot. at 5. But
Harvard has never claimed to pursue the “diversity within diversity” interest that the
University of Texas at Austin (“UT”) belatedly advanced in Fisher II. See infra at 14-15.
Even if Harvard had done so, it would not affect the scope of fact discovery. SFFA has
already propounded discovery (and will continue to do so through additional document
requests, interrogatories, and deposition testimony) seeking evidence as to how Harvard
defines diversity. If Harvard claims an interest in qualitative diversity, all facts
concerning it will come to light in due course. SFFA does not need the benefit of Fisher
II to investigate this issue in full.
Beyond this feeble example, Harvard offers only vague generalities about how
Fisher II’s clarification of the legal standard “will affect the type of evidence SFFA seeks
and the evidence that Harvard may wish to present” in support of its program. Mot. at 5.
Such generalities fall far short. See, e.g., Honeywell Int’l, Inc., 20 F. Supp. 3d at 132
(rejecting argument “broadly assert[ing]” a “substantial overlap in legal and factual issues
between this case and the related cases” as “speculation … unaccompanied by reasoning,
analysis, or supporting authority”). SFFA is not concerned with proceeding at the same

9

time as Fisher II. Nor does it anticipate seeking any additional discovery based on its
outcome. And if Harvard has evidence that it “may wish to present” in defense of its
program, it would be well advised to timely produce it in response to SFFA’s discovery
requests to which such evidence is surely responsive. At base, Harvard “can give the
court no assurances or even convincing arguments that a stay will achieve the ends of
judicial economy which would be its justification.” Dow Chem. Co. v. Composite
Container Corp., 1984 WL 1245, at *1 (D. Mass. Apr. 10, 1984).
Fisher II likewise will not affect expert discovery. Harvard offers nothing specific
on this point—not even the vague generalities it throws out in support of its argument
concerning fact discovery. If Harvard is suggesting that the same issues that purportedly
support staying fact discovery support staying expert discovery, the argument is equally
meritless. An expert’s job is to provide “testimony concern[ing] scientific, technical, or
other specialized knowledge” that “will assist the trier of fact in understanding or
determining a fact in issue.” Correa v. Cruisers, a Div. of KCS Int’l, Inc., 298 F.3d 13, 24
(1st Cir. 2002). “Expert testimony that consists of legal conclusions” therefore “cannot
properly assist the trier of fact.” Nieves-Villanueva v. Soto-Rivera, 133 F.3d 92, 100 (1st
Cir. 1997) (quotation omitted). Here, the parties’ experts will testify about how Harvard’s
admission system works, to what extent (and in what way) race is a factor in admissions,
and the ability (or inability) of race-neutral alternatives to achieve diversity in the student
body. Experts will not be testifying as to the relevant legal standard, however it may be
shaped by Fisher II (if at all). Fisher II thus has no more bearing on expert discovery than
it will on fact discovery—which is precisely none.

10

Finally, even if Fisher II “affect[s] the legal standards in this case,” Mot. at 7, the
parties can address it in their summary judgment briefs. Harvard correctly observes that
Fisher II will be issued “likely no later than June 2016.” Id. at 1. Summary judgment
briefing in this case is schedule to commence on October 13, 2016. Thus, judicial
economy will not be served by staying this case to address any impact Fisher II has on
the prevailing legal standard. Indeed, given the additional witnesses, statistical data,
admissions files, and other documents that will become relevant through the addition of
another admissions cycle, a stay will only disserve judicial economy. For all of these
reasons, Harvard’s stay motion should be denied.
IV.

Harvard Badly Misapprehends the Legal Question at Issue in Fisher II and
Its Impact on This Litigation.
The above argument firmly establishes that the Court should deny the stay request

even accepting Harvard’s argument regarding the overlap between Fisher II and this
case. But Harvard’s argument is, in truth, built on sand. Harvard’s motion is premised on
the proposition that a stay is justified until Fisher II “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.” Mot. 1; see also id. 2 (“Fisher
II presents the Supreme Court with an opportunity to clarify the law” and “will almost
certainly affect the standards that inform this litigation”). Even a cursory review of the
Supreme Court’s decision in Fisher I and the certiorari pleadings in Fisher II flatly
disproves this assertion.
Fisher I clarified the applicable law. In that decision, the Supreme Court held that
the Fifth Circuit “did not apply the correct standard of strict scrutiny” and set forth the
proper legal framework. Fisher v. Univ. of Texas at Austin, 133 S. Ct. 2411, 2415 (2013).

11

In particular, the Court walked through the strict-scrutiny requirements established in the
“decisions that directly address the question of considering racial minority status as a
positive or favorable factor in a university’s admissions process” and explained that
“additional guidance may be found in the Court’s broader equal protection jurisprudence
which applies in this context.” Id. at 2417-18. The Court held that the Fifth Circuit’s
deferential review of UT’s reasons for reinstating racial classifications was in conflict
with this “controlling standard” and remanded the matter “so that the admissions process
[could] be considered and judged under a correct analysis.” Id. at 2421.
On remand, the Fifth Circuit purported to apply “the ordered exacting scrutiny”
and again upheld UT’s use of race in its admissions system. Fisher v. Univ. of Texas at
Austin, 758 F.3d 633, 637 (5th Cir. 2014). Ms. Fisher, in turn, sought certiorari on the
ground that the Fifth Circuit erred in concluding that UT’s use of racial preferences could
withstand “the demanding scrutiny that Fisher I mandates.” Petition for Certiorari, Fisher
v. Univ. of Texas at Austin (U.S. Feb. 10, 2015) (No. 14-981) (“Fisher II Pet.”) at 2.
Thus, Ms. Fisher is not “now asking the Supreme Court to clarify” the “standard set forth
in Fisher I.” Mot. at 3. Far from it, her position is that the “Court’s decision in Fisher I
could not have been more clear. On remand, the Fifth Circuit was to review the record
under the traditional and demanding constraints of strict scrutiny.” Fisher II Pet. at 14.
Ms. Fisher thus argued that the Court should grant certiorari a second time not because of
doubt as to the applicable legal standard, but because the Fifth Circuit “contravened” that
clear standard “in multiple ways.” Id. at 15.
In reality, then, Harvard’s stay request is not premised on the need for guidance as
to the governing legal framework. Fisher I settled that issue, and it is not up for review in

12

Fisher II. Harvard seeks a stay on the theory that the application of strict scrutiny in
Fisher II will resolve issues “closely related to those in this case.” Mot. at 3. Even as to
that, however, Harvard’s argument misses the mark. There is almost no overlap between
the case-specific issues raised in Fisher I and those raised here. Moreover, any minimal
overlap that does exist provides an insufficient basis to grant a stay given that the
established schedule will allow those issues to be addressed fully in the parties’ summary
judgment briefs.
Foremost, almost all of SFFA’s claims have no overlap with Fisher II. SFFA
alleges that Harvard has engaged in a campaign of invidious discrimination against
Asian-American applications. See Comp. ¶¶ 428-42. Such racial discrimination has been
unlawful for more than a century. See Yick Wo v. Hopkins, 118 U.S. 356 (1886). SFFA
also alleges that Harvard has engaged in racial balancing. See Compl. ¶¶ 433-55. Racial
balancing likewise “is patently unconstitutional.” Grutter, 539 U.S. at 330. Furthermore,
SFFA alleges that Harvard is using race neither as a “plus” factor in accordance with
Grutter, see Compl. ¶¶ 456-65, nor to fill the “last few places” in the freshman class in
accordance with Regents of Univ. of Cal. v. Bakke, 438 U.S. 265 (1978), see Compl.
¶¶ 466-76. Fisher II raises none of these issues.
Harvard’s attempts to establish even minimal overlap between Fisher II and this
litigation are thus unsustainable. First, Harvard argues that both cases raise the question
whether “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.” Mot. at 3.
In fact, neither case raises that issue. It is settled law that a university’s reasons for
employing racial classifications must be “genuine, not hypothesized or invented post hoc

13

in response to litigation.” United States v. Virginia, 518 U.S. 515, 533 (1996). The issue
in Fisher II is not the validity of this legal rule, but whether UT adhered to it or instead
invented post hoc rationales for its use of race. See Fisher II Pet. at 15-16. 3 That issue is
not raised in this litigation—at least not yet.
Second, Harvard argues that Ms. Fisher’s challenge to UT’s “assertion of a
‘qualitative’ interest in diversity” tracks SFFA’s claim that “‘Harvard is not pursuing the
critical-mass interest found permissible in Grutter.’” Mot. at 4 (quoting Compl. ¶ 427).
But the two arguments have nothing to do with each other. Ms. Fisher challenges UT’s
argument that it has not yet achieved “critical mass” because the minorities admitted via
Texas’s race-neutral Top 10% Law “are inherently limited in their ability to contribute to
the University’s vision of a diverse student body.” Fisher II Pet. at 21 (citation and
quotations omitted). That issue is not raised here: Harvard does not admit any minorities
through race-neutral means and, unlike UT, Harvard has not (yet) argued that race-neutral
alternatives are unworkable because they would admit the kind of minority applicants that
lack “unique talents and higher test scores … required to enrich the diversity of the
student body.” Id. at 12 (citations and quotations omitted).
Third, Harvard claims that both Ms. Fisher and SFFA are arguing that universities
may “consider race … only for a small subset of applicants.” Mot. at 4. That is not true.
Under Grutter, a university may use race as a comprehensive element of its admissions
process in order to enroll a critical mass of underrepresented minorities. See 537 U.S. at

3
Harvard also notes that SFFA challenges its failure to consider race-neutral
alternatives before using racial preferences. Mot. at 3-4. That too is a settled principle.
See Fisher, 133 S. Ct. at 2420 (“But strict scrutiny imposes on the university the ultimate
burden of demonstrating, before turning to racial classifications, that available, workable
race-neutral alternatives do not suffice.”).

14

343. The issue in Fisher II is that UT seeks to defend its interest in intra-racial diversity
not under Grutter, but under Bakke, which, again, allows the use of race in comparing
applicants only when there are “‘a few places left to fill’” in the freshman class. Id. at 27
(quoting Bakke, 438 U.S. at 324). That issue has little or nothing to do with this case.
Harvard has not asserted an intra-racial diversity interest and has already acknowledged
in discovery that its admissions system is intended to employ racial classifications in the
manner Grutter allows—not the way Bakke envisions.
Fourth, Harvard suggests that both Fisher II (implicitly) and this case (explicitly)
ask the Supreme Court to overrule equal-protection precedent authorizing the use of
racial preferences in the educational setting. Mot. at 4. Harvard is half right. If this case
reaches the Supreme Court, SFFA will seek, as one form of potential relief, a ruling that
altogether prohibits racial preferences in admissions. See Compl. ¶¶ 489-505. But that
issue was not before the Supreme Court in Fisher I and it is not within the question
presented in Fisher II. See Fisher, 133 S. Ct. at 2421; Schuette v. BAMN, 134 S. Ct. 1623,
1630 (2014). The issue is thus irrelevant for purposes of Harvard’s stay request. Whether
the Supreme Court will overrule Grutter and Bakke if and when this case reaches it has
nothing to do with Fisher II, is not the subject of fact or expert discovery in this
litigation, and is not relief a district court could grant to SFFA in any event.
*

*

*

Harvard’s strategy is clear. It first requested a compressed discovery schedule that
never would have allowed for the thorough and complete review of its admission system
that strict scrutiny demands. Having been rebuffed by the Court, Harvard then turned to
stalling tactics. It has invented excuse after excuse for failing to (or in some cases flatly

15

refusing to) produce any documents to date (more than eight months since this case was
filed), notwithstanding their obvious relevance to this litigation and the ample time it has
had to gather them. See Memorandum of Law in Support of Plaintiff’s Motion to Compel
Production (Doc. 65). Harvard also has reneged on a written promise to the Court that it
would produce a statistically significant sample of application files, and it has tried to
distract attention from its policies by seeking to make this case about those who have
chosen to advocate on behalf of the applicants harmed by Harvard’s policies instead of
showing concern for these students’ right to have their day in court. Now, faced with the
imminent prospect of finally having to disclose information shedding light on its use of
racial preferences, Harvard requests a one-year stay based on the flimsiest of reasons.
The Court must bring this to an end. Rather than welcoming the opportunity to
defend its policies, Harvard seeks to delay or evade judicial review in a manner sadly
reminiscent of the obstructive tactics once employed to continue racial discrimination
against the underrepresented minorities Harvard now claims to champion. The Supreme
Court is watching to see whether the difficulty of case-by-case review under strict
scrutiny ultimately outweighs any marginal educational benefit of racial preferences.
Harvard’s behavior only lends further support to the conclusion that the costs of allowing
racial preferences in admissions decisions—even in a limited way—far exceed the
benefits. This case should proceed as scheduled and without further delay.4

4
In the event the Court is inclined to grant Harvard’s motion, SFFA respectfully
requests that the Court issue a written explanation of its reason in order to aid the First
Circuit and potentially the Supreme Court in reviewing that decision. See Microfinancial,
Inc. v. Premier Holidays Int’l, Inc., 385 F.3d 72, 77 (1st Cir. 2004) (explaining in the
context of reviewing a district court’s resolution of a discretionary stay motion that
“[t]here is no question that a trial judge can facilitate the appellate task by spelling out his
rationale, and we encourage such elaboration”).

16

V.

Conclusion
For the foregoing reasons, Plaintiff SFFA respectfully requests that the Court

deny the Motion for Stay.

Respectfully submitted,
/s/ William S. Consovoy

Paul M. Sanford
BBO #566318
Benjamin C. Caldwell
BBO #67506
BURNS & LEVINSON LLP
One Citizens Plaza, Suite
1100 Providence, RI 02903
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]

William S. Consovoy
Thomas R. McCarthy
J. Michael Connolly
CONSOVOY MCCARTHY PARK PLLC
3033 Wilson Boulevard
Suite 700
Arlington, Virginia 22201
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
Patrick Strawbridge
BBO #678274
CONSOVOY MCCARTHY PARK PLLC
Ten Post Office Square
Boston, MA 02109
Tel: [phone]
[e-mail]

Dated: July 20, 2015

Counsel for Plaintiff Students for Fair
Admissions, Inc.

17

CERTIFICATE OF SERVICE
In accordance with Local Rule 5.2(b), I hereby certify that I filed the preceding document
through the ECF system, and that this document will be sent electronically to the
registered participants as identified on the Notice of Electronic Filing.
s/ Patrick Strawbridge________

18