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

Filing 83

Supplemental 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 SUPPLEMENTAL MEMORANDUM
IN OPPOSITION TO MOTION TO STAY
Plaintiff Students for Fair Admissions, Inc. (“SFFA”) respectfully submits this
supplemental memorandum to respond to issues raised by the Court at the hearing of July
21, 2015, regarding the Motion for Stay filed by Defendant President and Fellows of
Harvard College (“Harvard”).
I.

Harvard’s Stay Motion Should Be Denied In Its Entirety.
SFFA continues to believe that Harvard’s request for a stay pending a decision in

Fisher v. University of Texas at Austin, No. 14-981 (“Fisher II”), is baseless. As SFFA
has explained, its members face undeniable hardship if the adjudication of their civil
rights claims is delayed for even one additional admissions cycle. See SFFA Opposition
(Dkt. 71), at 3-5. In its last-minute reply, Harvard offered pages of speculation about
which admissions cycle is most likely to be affected by an adverse decision. Reply at 3-5.
But in the end, Harvard does not (and cannot) deny that a one-year stay is likely to affect
at least some of SFFA’s 16,000 members—to say nothing of the thousands of Asian-

1

American applicants who seek admission to the university each year.1 And, try as it
might, Harvard cannot escape the Supreme Court’s requirement that the proponent of a
stay “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 v. N. Am. Co., 299 U.S. 248, 255 (1936).

This is no

“misstatement” of the governing legal standard; indeed, the First Circuit reads Landis
precisely as SFFA does. See Austin v. Unarco Indus., Inc., 705 F.2d 1, 5 (1st Cir 1983)
(noting that “[t]he Supreme Court has indicated, however, that to be entitled to a stay, a
party must demonstrate a clear case of hardship if there is a danger that the stay will
damage the other party”) (citing Landis).
Moreover, Fisher II will, at most, affect only the legal standard by which some of
SFFA’s claims about Harvard’s consideration of race may be judged. It will not affect
SFFA’s claims for invidious discrimination or racial balancing. SFFA made this point in
its Opposition, see id. at 13, and at the status conference, and Harvard has not contested
it. These claims alone require the same type of fact discovery about Harvard’s actual
practices, and the effect they have on Asian-American admissions. Even with respect to
those claims for which Fisher II may provide some general guidance, any Supreme Court

1
Harvard’s attempt to minimize the impact of a stay on SFFA’s membership
relies in part on the initial disclosure by SFFA of nine student members (in addition to
three sets of parents) from a variety of past or future Harvard admissions cycles. Given
the exponential growth in SFFA’s membership during the past year, SFFA continues to
identify and, as necessary, will disclose additional members who have applied, or intend
to reply, to Harvard during the pendency of this case. Nor does Harvard cite any authority
to support its suggestion that this Court may only consider the harm to SFFA’s current
membership when determining whether to issue a stay. Reply at 4 n.3. To the contrary,
the First Circuit has identified “the interests of third parties” as a factor for the Court to
consider when contemplating a discretionary stay. Microfinancial, Inc. v. Premier
Holidays Int'l, Inc., 385 F.3d 72, 78 (1st Cir. 2004).

2

decision will not—and cannot—change the facts about how Harvard is using race.
Indeed, Harvard has failed to articulate any actual example of how a decision in Fisher II
could change the scope of fact discovery in this case, despite having had three chances to
do so (in its Opening Memo, its Reply, and at the July 21 status conference). As a result,
Harvard has fallen far short of demonstrating any hardship, much less a “clear case of
hardship,” that would justify a stay in this case.
Harvard’s strategy is transparent. Having had a civil rights complaint filed with
the Department of Education by dozens of Asian-American groups dismissed because
those claims will be adjudicated in this litigation,2 it now seeks to put the entire case on
ice for one year. It then lays the groundwork for further delay, asserting the possibility
that it will need to “review” and potentially “revise” its admissions policies after Fisher
II, even as it conspicuously reserves the right to argue that Fisher II is wholly
inapplicable to its own admissions policies. Opening Memo (Dkt 59) at 2 n.1. And still
Harvard has yet to make its first production of documents, and hopes to avoid any actual
inquiry into the way it actually uses race in the decision-making process. These are not
the actions of a party that welcomes any scrutiny of its admissions practices. This Court
should not aid Harvard in its efforts to delay, and in doing so condemn at least another
year’s worth of applicants to an ongoing violation of their civil rights. The motion should
be denied, and the case should proceed.3

2
See, e.g., Molly Boigon, Why the Education Dept. Dismissed a Discrimination
Complaint Against Harvard,
WGBH
(July
8,
2015),
available at
http://www.pbs.org/newshour/rundown/education-department-dismisses-discriminationcomplaint-harvard/
3

At the status conference, the Court raised the question whether the pending
appeal of this Court’s order denying a motion of intervention deprived it of jurisdiction.

3

II.

If the Court Believes Harvard’s Claim That Fisher II Is Reasonably Likely
To Render All Discovery Unnecessary, A Complete Stay Should Be Granted.
As noted, Harvard has failed to articulate any specific category of pending

discovery that is (a) not equally relevant to SFFA’s claims that are not implicated at all
by Fisher II; and (b) will not eventually be required post-Fisher II for evaluation of
SFFA’s other claims. Instead, Harvard’s primary contention is that it should be allowed
to avoid the burden of discovery in its entirety because Fisher II may actually moot this
entire case. Reply at 8 n. 10; see also Opening Memo at 6.
Of course, there is no realistic basis for assuming that Fisher II will have so
sweeping an impact. The briefing in that case makes clear that neither party in Fisher II
expects the Court to overrule Grutter v. Bollinger, 539 U.S. 306 (2003), and the Supreme
Court has twice indicated that the Fisher litigation does not present that question. See
Fisher, 133 S. Ct. at 2421; Schuette v. BAMN, 134 S. Ct. 1623, 1630 (2014). Moreover,
even if the Supreme Court were to take such a dramatic step, Harvard has specifically
reserved the right to challenge whether Fisher II controls its admissions process.
Opening Memo at 2 n.1. As a result, there is no basis to assume that Fisher II will create
such a dramatic change in the law so as to render all discovery moot.

Although “[a]n order flatly denying a motion to intervene in a judicial proceeding is an
immediately appealable collateral order,” Rhode Island v. U.S.E.P.A., 378 F.3d 19, 26
(1st Cir. 2004), this Court is deprived of jurisdiction only over matters related to the order
on appeal. “Even after the appeal is filed the district court retains authority to decide
matters not inconsistent with the pendency of the appeal,” United States v. Hurley, 63
F.3d 1, 23 (1st Cir. 1995) Indeed, the intervenors conceded in this Court that they “do
not expect to need additional fact discovery beyond what the Parties plan,” See Reply
Memorandum in Support of Proposed Defendant-Intervenors’ Motion to Intervene (Dkt
42) at 10. In any event, the appeal is likely to be complete long before the current
discovery deadline closes. The pending appeal of the denial of the motion to intervene
thus provides no support for any stay.

4

But if this Court really believes that there is a realistic chance Fisher II will moot
this case in its entirety, then the Court should clearly state so, stay discovery completely,
and avoid imposing the burden of any discovery on any of the parties. In that event,
SFFA respectfully reiterates its request for a written decision so it may pursue appellate
remedies to defend the rights of its members who will suffer prejudice from any delay in
their ability to apply to or transfer to Harvard.
III.

If the Court Believes a Partial Stay is Appropriate, Discovery Should Be
Evenhanded And Help The Parties Meaningfully Move Their Cases
Forward.
As set forth above, SFFA does not consider a partial stay an appropriate or

workable solution to this case. But if the Court nonetheless decides that a partial stay of
discovery is appropriate (notwithstanding Harvard’s inability to articulate any particular
category of discovery that would be affected by a decision in Fisher II) the focus should
be, as the Court indicated during the status conference, on moving the case forward so
that it can proceed quickly to summary judgment (and trial, if necessary) after Fisher II is
issued.
With that goal in mind, SFFA firmly believes that any partial discovery must
provide its experts with the opportunity to make use of the anticipated eleven-month
delay by providing them with sufficient data to conduct preliminary analysis of Harvard’s
actual admissions process. Any partial stay, then, should at a minimum, require:
•

Production of a preliminary sample of application files. Both parties

and the Court have recognized that some production of application files is necessary and
inevitable in this case. The parties already have invested substantial time in briefing the
question of how many files are appropriate to support statistically defensible conclusions

5

about how Harvard scores applications for undergraduate admissions. Once those files
are turned over, SFFA’s expert will need time to analyze their content and determine
what they suggest about Harvard’s admissions practices (as well as whether statistics
principles require a larger sample). To the extent there are privacy concerns or redaction
questions associated with the production of any files, these issues could also be addressed
(and litigated, if necessary) during the partial stay. Given the time that process could take,
the inevitability of discovery of these files, and the importance of these files to expert
analysis of key factual issues in this case, any stay should permit the production of the
preliminary sample, in whatever amount the Court decides, to proceed.
•

Production of electronic admissions databases. Harvard has repeatedly

agreed in writing to produce individual and aggregate admissions data that it maintains in
electronic format. These data are readily accessible and can be produced without
inordinate delay or burden. Both parties agree that the data are relevant and will further
enable experts to prepare their analysis and identify the extent to which the files and the
data complement or contradict one another.4
This type of preliminary discovery would allow the experts and parties to make
meaningful progress during the period while Fisher II is pending, while still
(temporarily) sparing Harvard from compliance with a substantial portion of its discovery
obligations. Under this approach, Harvard would be able to delay the production of any
email or other electronically-stored information, even though this eventually (and
inevitably) will represent a substantial portion of the discovery in this case. It also would

4
In its meet-and-confer session following the status conference, counsel for
Harvard offered to produce the list of fields in the database, but firmly resisted the
suggestion that it should produce the data itself. Perusing a list of database fields will not
t would hardly suffice to move this case forward.

6

delay discovery into policy areas that might be impacted, however slightly, by Fisher II,
such as the extent to which Harvard has considered race-neutral alternatives to achieving
its diversity goals.
To be sure, there are other categories of basic policy, guidance and training
materials that Harvard no doubt should produce under a partial stay—indeed, that it
should have produced weeks, if not months, ago. But the limited discovery identified
above is the minimum necessary to enable SFFA to make any significant progress during
a year-long stay. Otherwise, SFFA believes the Court should issue a reasoned order
granting a full stay, which would allow SFFA to pursue the appellate remedies necessary
to protect the rights of members for whom a delay in discovery may preclude them from
ever obtaining a fair consideration of their application to attend Harvard.
Finally, to the extent that Harvard may suggest that a “partial” stay should
nonetheless permit it to engage in full discovery, and even motion practice, on SFFA’s
associational standing, while at the same time avoiding even a limited inquiry into any
applicant-specific information, Harvard is really seeking a unilateral stay of discovery.
There is no basis whatsoever for any approach that would impose the full burdens of
discovery on SFFA, while at the same time permitting Harvard to avoid almost any
burden itself, particularly when the stay is sought largely on the basis that the entire case
could be resolved in SFFA’s favor.
Such one-sided discovery orders are routinely rejected on grounds of basic
fairness. See, e.g., Inland Am. (LIP) SUB, LLC v. Lauth, No. 109-CV-00893-SEB-JMS,
2010 WL 670546, at *2 (S.D. Ind. Feb. 19, 2010) (rejecting request because “Defendants
want to be able to conduct discovery on their counterclaims, while denying Plaintiff the

7

ability to conduct discovery on its claim”); Bank of Am. v. Veluchamy, No. 09C5109,
2010 WL 1693108, at *4 (N.D. Ill. Apr. 26, 2010) (noting that “it would be unfair to
impose a one-sided stay that would allow Counterplaintiffs to pursue discovery, while
preventing Bank of America from engaging in the discovery necessary to defend against
the nine-count counterclaim brought by Counterplaintiffs”); Pendergest-Holt v. Certain
Underwriters at Lloyd's of London & Arch Specialty Ins. Co., No. CIV.A H-09-3712,
2010 WL 3199355, at *3 (S.D. Tex. Aug. 11, 2010) (rejecting a stay of discovery that
was “one-sided and would impose an undue hardship” on other party).

This

asymmetrical discovery would be particularly inappropriate when a partial stay would
frustrate the ability of a civil-rights plaintiff to obtain injunctive relief vindicating their
right to be free form unlawful racial discrimination. In the unlikely event the Court were
to consider that sort of so one-sided an approach, SFFA would request a temporary stay
of that order, so it could seek emergency relief from the First Circuit.
*

*

*

Given SFFA’s members’ strong interest in having their applications reviewed
without the improper use of race, and Harvard’s utter failure to identify any specific
discovery request that will be affected by a decision in Fisher II, SFFA respectfully urges
the Court to simply deny the motion and permit the parties to resume building the full
record necessary to determine just how Harvard uses race in its undergraduate admissions
program.

At the summary judgment stage, with the benefit of any legal guidance

provided by Fisher II, this Court can determine whether Harvard is able to carry its
burden in light of its practices below. A partial stay is particularly inappropriate, given
the all-or-nothing nature of Harvard’s wholly speculative argument that Fisher II could

8

do away with the use of race altogether. But if the Court is determined to issue a partial
stay, it should do so in a manner that ensure evenhanded discovery and permits a
meaningful inquiry into Harvard’s actual use of race in considering at least a subset of its
applicants.

Anything else is functionally equivalent to a full stay at best, and an

inappropriate unilateral stay at worst.

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 28, 2015

Counsel for Plaintiff Students for Fair
Admissions, Inc.

9

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________

10