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

Filing 82

NOTICE by President and Fellows of Harvard College re 58 MOTION to Stay - Supplemental Submission (Ellsworth, Felicia)

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

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

HARVARD’S SUPPLEMENTAL SUBMISSION
REGARDING ITS MOTION TO STAY
Harvard maintains that a temporary stay of all proceedings in this litigation is warranted
pending the Supreme Court’s ruling in Fisher II. As set forth more fully in Harvard’s
memoranda (Dkts. 59, 78), the Supreme Court’s decision in Fisher II will provide important
guidance on the legal standards governing this litigation, guidance that will be highly relevant to
defining not only the applicable legal framework but also the scope of permissible discovery—
including in a way that will inform the resolution of the discovery disputes now pending before
the Court. In light of this legal uncertainty, Harvard should not be subjected to the substantial
burden and intrusion of discovery SFFA has acknowledged is “broad-sweeping,” while SFFA’s
counsel simultaneously litigates the legal boundaries of race-conscious admissions in the
Supreme Court. 1 This is particularly the case in light of the significant privacy concerns
associated with the bulk of the discovery requested by SFFA.

1

During the July 21, 2015 status conference, the Court inquired of the parties whether the
Court lost jurisdiction during the pendency of the Proposed Intervenors’ appeal to the First
Circuit (Dkt. 60). It is Harvard’s understanding that an appeal by intervenors typically does not
deprive the trial court of jurisdiction. See United States v. Hurley, 63 F.3d 1, 23 (1st Cir. 1995)
(“even after [an] appeal is filed the district court retains authority to decide matters not

During the Court’s July 21, 2015 status conference, the Court invited the parties to
articulate a proposal for whether there might be steps that could be taken to advance the case in
certain respects while the balance of proceedings is stayed during the pendency of Fisher II, with
the goal of allowing full discovery to proceed expeditiously once a stay is lifted. Counsel for
Harvard and counsel for SFFA met and conferred about each party’s proposal for limited
discovery, during which Harvard communicated its proposal to SFFA. Counsel for SFFA
informed counsel for Harvard that SFFA’s proposal for “limited” discovery included the full
contents of the admissions database (including all applicant data), as well as whatever number of
admissions files the Court orders Harvard to produce in connection with SFFA’s pending motion
to compel (Dkt. 64). SFFA also identified several categories of document discovery that it
thought should proceed during the pendency of a stay, and suggested that it would propose that
discovery against third parties be allowed to proceed forward during the pendency of a partial
stay. SFFA’s proposal, at least as communicated by counsel during the parties’ conference, does
not in Harvard’s view limit discovery in any meaningful way. The parties agreed that separate
submissions, rather than a single joint submission, would be appropriate in light of the
divergence in approaches.

inconsistent with the pendency of the appeal”); Connecticut v. Spellings, 453 F. Supp. 2d 459,
467-68 (D. Conn. 2006) (pendency of appeal of denial of motion to intervene did not strip
district court of jurisdiction to decide motion to dismiss). However, the Proposed Intervenors’
pending appeal also weighs in favor of granting Harvard’s request for a temporary stay of all
proceedings. In the event the First Circuit concludes that the Proposed Intervenors should be
allowed to participate in this litigation as parties, this Court may conclude that the new parties
should be allowed to participate in discovery that has already occurred (as occurred in the
Grutter litigation). See Grutter v. Bollinger, No. 97-cv-75928, (E.D. Mich. Aug. 30, 1999) (Dkt.
132). Although the First Circuit has not yet set a briefing schedule in that appeal, briefing is
likely to be complete by late October, and thus a decision likely to issue before the decision in
Fisher II is expected (by June).
2

Some or all of the discovery identified below may be mooted if Fisher II changes the law
in important respects or if Harvard revisits its admissions practices in light of the Supreme
Court’s decision. Moreover, the scale and sweep of SFFA’s proposed discovery, even following
this Court’s direction that the parties confer to seek to identify reasonable limitations, remains so
broad that the case for a stay becomes even more compelling. This notwithstanding, and
reserving all rights, Harvard submits the following proposal.
In light of the Court’s question as to whether the parties could exchange information that
would position the parties to move forward with data analysis once a stay is lifted, the Court
could consider the production of a list of the variables or fields in the applicant database
maintained by Harvard’s Office of Admissions from which Harvard intends to produce data, as
well as any manuals or guides relating to the operation of this database. This information will
allow SFFA and its expert to understand the types and format of the data that, depending on
Fisher II, would be produced in full discovery, and should also allow SFFA to prepare its
statistical model in order to be fully prepared to move quickly once the stay is lifted.
The following might be other options the Court could consider during the pendency of a
partial stay:
•

Documents sufficient to show Harvard’s current training materials (policies, procedures,
case studies) relating to undergraduate freshman admissions;

•

Documents sufficient to identify current Admissions Office personnel and their roles and
responsibilities;

•

Documents sufficient to show the current forms used to evaluate undergraduate freshman
applicants by the Admissions Office;

•

The Dean of Admissions’ Annual Report to the President;

•

Documents sufficient to describe the categories of materials Harvard receives from
applicants for freshman admission; and

3

•

A sample redacted freshman application file.
In the event that the Court enters anything less than a complete stay of proceedings, and

thus allows discovery to proceed forward against Harvard, Harvard should also be allowed to
proceed with its discovery relating to SFFA’s standing to pursue this litigation, including the
standing of the members on whom SFFA relies for its organizational standing, which would
include communications between SFFA and its members, policies and practices relating to
member selection, the membership’s roles in contributing to and participating in SFFA’s
decisionmaking, and, during the stay, no more than two depositions of SFFA’s membership
and/or leadership on these topics.
Harvard submits that discovery concerning specific applicants or prospective applicants
would not be appropriate during the pendency of any stay. Accordingly, in the event the Court is
inclined to allow any discovery to proceed at this point, Harvard requests that the Court
specifically prohibit any discovery concerning specific applicants (by document, database,
deposition, application file, or otherwise) while the case is stayed.

Respectfully submitted,
/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
4

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]
Dated: July 28, 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 28, 2015.
/s/ Felicia H. Ellsworth
Felicia H. Ellsworth

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