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

Filing 73

MOTION for Leave to File Reply Memorandum In Support Of Motion To Stay by President and Fellows of Harvard College. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Ellsworth, Felicia)

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
Subject to Harvard's Motion
to File Under Seal [Dkt. 72] & Motion
for Leave to File [Dkt. 73]

Defendant.

PROPOSED REPLY MEMORANDUM
IN SUPPORT OF HARVARD’S MOTION TO STAY
In an opposition laden with more invective than analysis, Plaintiff Students for Fair
Admissions, Inc. (“SFFA”) portrays as radical the common-sense notion that before the parties
undertake a year’s worth of costly and intrusive discovery, they should wait for the Supreme
Court’s imminent clarification of the law—a clarification invited by SFFA’s own counsel, in a
suit backed by its President. In addition to misstating this Court’s substantial discretion to
manage its docket, SFFA overstates the prejudice its members would purportedly suffer from a
temporary stay and sharply understates the relevance of Fisher II. By entering a stay pending the
Supreme Court’s resolution of that case, this Court would not be licensing “the obstructive
tactics once employed to continue racial discrimination” during the Civil Rights era (Opp. 16); it
would be exercising its discretion in the manner most consistent with fairness, efficiency, and
judicial prudence.
I.

SFFA Misstates The Law Governing Stays
“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
1

dockets reasonably requires such intervention.” Marquis v. FDIC, 965 F.2d 1148, 1154 (1st Cir.
1992). Harvard does not dispute that the power to stay litigation requires “‘the exercise of
judgment, which must weigh competing interests[.]’”

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, 254-255 (1936)).
SFFA errs, however, in suggesting that any potential prejudice to its members (which, as
explained below, SFFA significantly overstates) is the only factor that should weigh in the
Court’s discretionary judgment. As SFFA’s own cases establish, prejudice to the non-movant is
just one factor that bears on the appropriateness of a stay. In Alves v. Prospect Mortgage, LLC,
No. 13-cv-10985, 2013 WL 5755465, at *2 (D. Mass. Oct. 22, 2013), for example, this Court
identified three factors affecting whether to stay litigation pending the outcome of related
proceedings: “(1) potential prejudice to the non-moving party; (2) hardship and inequity to the
moving party without a stay; and, (3) judicial economy” (internal quotation marks omitted). And
in Goldhammer v. Dunkin’ Donuts, Inc., 59 F. Supp. 2d 248 (D. Mass. 1999), the Court
identified six factors that courts weigh “in determining whether to grant a stay because of
parallel litigation in a foreign forum,” of which prejudice to a party is just one. Id. at 252-253.
Notably, although SFFA cites Goldhammer for the proposition that the power to grant a stay
should be exercised sparingly, the Court in that case granted a stay (id. at 253), despite finding
that doing so would cause some prejudice to the non-moving parties (id. at 255).1
SFFA’s suggestion that prejudice to the non-movant is at least the preponderant factor
relies on the Supreme Court’s statement that “the suppliant for a stay must make out a clear case
1

See also Consol. Edison Co. of New York v. United States, 30 F. Supp. 2d 385, 389
(S.D.N.Y. 1998) (identifying “five factors courts consider in deciding whether to grant a stay”
pending overseas litigation).

2

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, 299 U.S. at 255. But that
statement does not imply that where granting a stay would prejudice the non-movant and
denying it would prejudice the movant, the former harm should outweigh the latter. It addresses
only the fact that a movant—who bears the burden of justifying the stay—must carry that burden
to demonstrate that these competing harms weigh in favor of a stay. Moreover, the Supreme
Court clarified that “[c]onsiderations such as these … are counsels of moderation rather than
limitations upon power.” Id. Here, the balancing of the applicable factors weighs in favor of a
delineated stay, and this Court’s discretion to manage its docket authorizes it to take that action.2
Finally, SFFA argues (at 2) that “a stay ‘is rarely appropriate’ when the parallel litigation
‘will not dispose of the entire case.’” But the case from which SFFA quotes—Chavous v. D.C.
Financial Responsibility & Management Assistance Authority, 201 F.R.D. 1 (D.D.C. 2001)—
says nothing of the sort. It says that “a stay of discovery pending determination of a motion to
dismiss is rarely appropriate when the pending motion will not dispose of the entire case[.]” Id.
at 3 (internal quotation marks omitted) (emphasis added). On the question that is actually before
this Court—whether to stay this case pending related litigation—the First Circuit has said quite
the opposite, holding that 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

2

SFFA also argues (at 3) that “a stay is especially difficult to secure in cases where the
plaintiff has ‘alleged … continuing harm and sought … injunctive or declaratory relief.’” But
the language that SFFA quotes from Lockyer v. Mirant Corp., 398 F.3d 1098 (9th Cir. 2005),
says no such thing; it simply mentions that a prior case declined mandamus to disturb a stay in
part because the plaintiff was seeking only damages.

3

involved.’” Taunton Gardens Co. v. Hills, 557 F.2d 877, 879 (1st Cir. 1977) (quoting Landis,
299 U.S. at 253).
II.

SFFA Overstates The Prejudice That A Stay Would Cause
SFFA also overstates the degree of prejudice that would actually result from a temporary

stay pending the resolution of Fisher II. 3 There are two principal problems with SFFA’s
argument.
First, even an eleven-month delay in this litigation (from the current date to the last
possible date for resolution of Fisher II in June 2016) would not be particularly significant, in
light of the fact that (1) more than a quarter-century has elapsed since the Department of
Education examined (and exonerated) Harvard’s race-conscious admissions practices against
essentially the same challenge SFFA now brings; (2) SFFA has taken the position that discovery
in this case should extend well into 2016 in any event; and (3) this delay is the direct result of
parallel litigation (in three courts at once) brought by SFFA’s counsel and backed by its
President.
Second, at most a small handful of SFFA’s purported members 4 —and quite possibly
none—would be affected by that delay. Although SFFA suggests (at 3) that “the 2016-2017
cycle” is “the first admissions cycle in which a judgment in SFFA’s favor likely would take
effect” absent a stay, that is unlikely. Summary judgment motions are not due until mid-October

3

Because this is not a class action, the only prejudice alleged by SFFA that could possibly
be relevant to the Court’s consideration of a stay is the prejudice that a stay would cause to
SFFA’s own members.
4

Harvard refers to SFFA’s purported members as “members” for purposes of this motion,
but reserves the right to argue that SFFA lacks standing to pursue this litigation because its
purported members lack any genuine membership relationship with the organization, and further
reserves the right to argue that the only members whose individual standing can be attributed to
SFFA are those who joined prior to the filing of this action.

4

2016, with briefing through late November 2016. Even if the Court were to rule quickly on the
motions, any judgment in SFFA’s favor would be unlikely to issue before Harvard was already
well into its regular admissions cycle for 2016-2017. Thus, the earliest admissions cycle to
which any judgment in SFFA’s favor could apply would be 2017-2018.
The proposed stay would therefore not affect any of SFFA’s rejected-applicant members
(see Declaration of
Felicia H. Ellsworth (“Ellsworth Decl.”), Ex. B), as those members would by that point be
ineligible to apply for transfer admission.5 And it would not affect the ability of all but three of
SFFA’s future-applicant members to apply for freshman admission. The only three members
who intend to apply for admission in 2017-2018 or subsequent cycles plan to apply in three
different years (

, see Ellsworth Decl., Ex. B), so a

temporary stay of no more than a year could affect at most a single one of them.
Moreover, Harvard would have ample grounds to seek a stay pending appeal of any
adverse judgment—and given the typical timeline of proceedings in the First Circuit and the
Supreme Court, it is far likelier that the first admissions cycle affected by any decision would be
2019-2020, an admissions cycle in which SFFA has identified no member who plans to apply.
See id. (identifying future-applicant members who plan to apply in
). Since the

applicant would not be adversely affected by

delaying the effect of an adverse judgment from 2019 to 2020, the likeliest scenario is that not
one of SFFA’s members would be harmed by a stay.

5

See Harvard College Admissions & Financial Aid, Transfer Eligibility,
https://college.harvard.edu/admissions/application-process/transferring-harvard-college/transfereligibility (last visited July 20, 2015).

5

SFFA thus substantially overstates the likelihood that a stay in this matter would cause
any prejudice. Such a stay might well have zero effect on any of SFFA’s purported members.
At most, a stay could conceivably affect one of SFFA’s three members who claim that they plan
to apply for freshman admission during the

admissions

cycles.
The likelihood of prejudice to a non-movant is, as noted above, just one among the
factors that a district court must balance in determining whether to enter a stay. Here, the
speculative possibility of an adverse effect on a single hypothetical applicant does not justify
allowing eleven months’ worth of costly and burdensome discovery, much of which implicates
serious individual privacy considerations, to proceed against a non-profit educational institution
while—at the behest of SFFA’s own counsel—the Supreme Court clarifies the governing law.6
III.

SFFA Understates The Relevance Of Fisher II
SFFA seriously understates the connection between this case and Fisher II.

Ellsworth Decl., Ex. A. SFFA’s President, who has also been heavily
involved in the Fisher litigation, has explained publicly that he sees that case and this one as
parts of an integrated litigation strategy.7 Even aside from the fact that Fisher II will provide just

6

SFFA has even less basis to suggest (at 5) that a temporary stay could result in the
destruction of evidence.
7

See Houston Chinese Alliance, Edward Blum Speaks About The Legal Battle Against
Harvard University, YouTube (Apr. 26, 2015),
https://www.youtube.com/watch?v=VVVuhD0KelQ (“When we filed [Fisher], we didn’t ask the
Court to [end the use of race and ethnicity in higher education], because we felt that it would
take a couple of cases to develop our theories and find the right set of facts to do it. But if we
6

the fifth occasion in the past four decades for the Supreme Court to address the permissible
consideration of race in university admissions, it strains credulity for SFFA to contend that
Fisher II bears only marginal relevance to this case.
As Harvard’s opening Memorandum explains, the petition for certiorari in Fisher II asks
the Supreme Court to resolve a number of questions that lie at the very heart of SFFA’s theory of
this litigation. It asserts, for example, 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, as opposed to those that the university asserts in litigation. Petition for Certiorari,
Fisher v. University of Texas at Austin (U.S. Feb. 10, 2015) (No. 14-981) (“Fisher II Pet.”) 1419.

It asserts (at 19-25) that a university must measure its attainment of diversity in a

quantitative, not qualitative, manner. And it asserts (at 25-29) that a university may consider
race only in filling the last few places in a class.
In its opposition, SFFA now claims (at 12) that these issues have all been so clearly
settled that Fisher II cannot clarify the law. But the Fifth Circuit obviously did not regard them
as settled, or SFFA’s lawyers would not be asking the Supreme Court for relief. And while
SFFA claims that certain of the issues are not even before the Court in Fisher II, that assertion is
impossible to square with the petition for certiorari.8 Despite SFFA’s effort to paint the grant of

win again at the Supreme Court, we think the hurdle that they articulated the first time in 2013,
that hurdle will be raised, it will be more fully fleshed out, and at least for the next two or three
years while the Harvard lawsuit is being pursued and the UNC lawsuit is being pursued, it will
be harder for universities to use race and ethnicity[.]”).
8
Compare Opp. 13 (arguing that Fisher II does not “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’) and id. (“SFFA alleges that
Harvard is using race neither as a ‘plus’ factor in accordance with Grutter nor to fill the ‘last few
places’ in the freshman class in accordance with [Bakke]. Fisher II raises none of these issues.”
(citations omitted)) with Fisher II Pet. 15 (criticizing the Fifth Circuit for having been
“‘persuaded’ by UT’s … post hoc rationalizations for its decision to reintroduce racial
7

certiorari in Fisher II as a drama-less and irrelevant affair, SFFA’s own President has stated that
he expects the Supreme Court’s resolution of Fisher II to “flesh[] out” the law governing the
consideration of race in admissions and to “continue[] to narrow the use of race.”9
SFFA accuses Harvard of insufficient specificity in addressing how the Supreme Court’s
resolution of Fisher II will affect discovery in this case. It is, of course, difficult to be precise in
addressing the effect of an opinion without knowing its contents. But Harvard has identified the
issues on which Fisher II could well shape the law, and any clarification of the law on those
issues surely would affect not only the scope of permissible fact and expert discovery, but also
the parties’ discovery and litigation strategies, which naturally operate under the Supreme
Court’s guidance on the governing standards for the use of race in university admissions. As this
Court is already aware (see SFFA’s Motion to Compel, Doc. 64), the parties disagree about
whether SFFA is entitled to discovery of the massive scope it seeks. The balance the Court will
need to strike on this and other disputes regarding the scope of permissible discovery will
undoubtedly be influenced by the contours of the governing law.10

preferences”) and id. at 27 (“Bakke never contemplated the wholesale use of race in the scoring
of all applicants.”).
9

See supra note 7; Tamar Lewin & Richard Pérez-Peña, Colleges Brace for Uncertainty as
Court Reviews Race in Admissions, N.Y. Times, July 1, 2015, at A14 (“‘Like most Americans, I
hope this case presents the court the opportunity to end racial classifications in higher education,
in total,’ said Edward Blum, the president of the Project on Fair Representation, which provided
counsel to Ms. Fisher …. ‘But if the court just continues to narrow the use of race, we would see
that as a great victory, too.’”).
10

SFFA also derides as “absurd” (Opp. 7) the notion that Fisher II might cause Harvard to
reexamine its admissions practices, causing this litigation to become moot and wasting the
intrusion and expense of a year’s worth of discovery. But SFFA’s suggestion that this case
would not be mooted by a change to Harvard’s admissions practices depends on the notion that it
would fall within the voluntary-cessation exception to mootness. Opp. 7 (citing City of Mesquite
v. Aladdin’s Castle, Inc., 455 U.S. 283, 289 (1982)). That exception does not apply where it is
“absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur”
(Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 170 (2000)), as
8

*

*

*

For the foregoing reasons and those expressed in Harvard’s opening Memorandum,
Harvard respectfully requests that the Court enter a temporary stay of this litigation pending the
Supreme Court’s forthcoming decision in Fisher II.11
/s/ Felicia H. Ellsworth
Felicia H. Ellsworth (BBO #665232)
WILMER CUTLER PICKERING
HALE AND DORR LLP
60 State Street
Boston, MA 02109
Tel: [phone]
Fax: [phone]
[e-mail]
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
would surely be true if the Supreme Court’s ruling in Fisher II led Harvard to substantially
revise, and perhaps abandon altogether, a practice it considers essential to its educational
mission.
11

SFFA asks (at 16 n.4) that the Court “issue a written explanation” of any decision
granting the requested stay, so as “to aid the First Circuit and potentially the Supreme Court in
reviewing that decision.” Of course, whether or not accompanied by written reasoning, a
temporary stay of litigation is not ordinarily appealable. See, e.g., Moses H. Cone Mem’l Hosp.
v. Mercury Const. Corp., 460 U.S. 1, 10 n.11 (1983) (“[A] stay is not ordinarily a final decision
for purposes of § 1291, since most stays do not put the plaintiff ‘effectively out of court.’”).

9

New York, NY 10007
Tel: [phone]
Fax: [phone]
[e-mail]

Dated: July 21, 2015

Counsel for Defendant President and
Fellows of Harvard College

10

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 21, 2015.
/s/ Felicia H. Ellsworth
Felicia H. Ellsworth

11