STUDENTS FOR FAIR ADMISSIONS, INC. v. UNIVERSITY OF NORTH CAROLINA, et al

Filing 40

MEMORANDUM filed by Intervenor Defendants Luis Acosta, Ramonia Jones, Angie Mills, Kevin Mills, Julia Nieves, Laura Ornelas, Cecilia Polanco, Tamika Williams, Star Wingate-Bey, Intervenor Plaintiff Christopher Jackson re 39 MOTION to Intervene filed by Luis Acosta, Christopher Jackson, Ramonia Jones, Angie Mills, Kevin Mills, Julia Nieves, Laura Ornelas, Cecilia Polanco, Tamika Williams, Star Wingate-Bey. (COLFAX, REED)

UNITED STATES DISTRICT COURT FOR
THE MIDDLE DISTRICT OF NORTH CAROLINA
STUDENTS FOR FAIR ADMISSIONS,
INC.,
Plaintiff,
v.

Civil Action No. 1:14-cv-954-LCB-JLW

THE UNIVERSITY OF NORTH
CAROLINA AT CHAPEL HILL, et al.,
Defendants.

MEMORANDUM OF LAW IN SUPPORT OF
PROPOSED DEFENDANT-INTERVENORS’
MOTION TO INTERVENE

Proposed Intervenors are four minorities who currently attend University of North
Carolina at Chapel Hill (“Student Intervenors”) and five high-achieving minority high
school students who intend to apply to the University of North Carolina at Chapel Hill
(“Applicant Intervenors”).1
I.

FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Students for Fair Admissions (“SFFA”) alleges that one of its white

members was denied admission to the University of North Carolina at Chapel Hill
(“UNC-Chapel Hill”) because he or she was not permitted to compete for admission on
equal footing with other applicants and that it has members who “may be denied
admission to UNC-Chapel Hill because of these discriminatory policies” in the future.
Compl. ¶¶ 13-19, 21-24. Plaintiff asserts that UNC-Chapel Hill’s consideration of the
race of its applicants violates the Constitution and Title VI. Plaintiff seeks a permanent
injunction to prevent UNC-Chapel Hill2 from using race as a factor in future
undergraduate admissions decisions and to prevent admissions officers from knowing the
race or ethnicity of any applicants. Compl. at p. 64. Plaintiff seeks a declaratory judgment
that UNC-Chapel Hill’s admissions policies and any other “use of race or ethnicity in an
educational setting” violates the Fourteenth Amendment and Title VI. Id.

The Applicant Intervenors are minors. Accordingly, their claims are brought by their
parents and each Applicant Intervenor is identified by his or her initials.
2
Proposed Intervenors will collectively refer to all remaining Defendants as “UNC-Chapel
Hill.”
1

1

II.

PROPOSED INTERVENORS
The Applicant Intervenors are: 1) C.J., an African American who will be a senior,

has survived cancer, and has a 4.03 GPA with a difficult schedule of Advanced
Placement and honors courses, see Decl. of C.J. (attached as Ex. 1.1); 2) Q.M., an
African American who will be a senior, has a GPA of 4.40, participates in numerous
extracurricular activities related to science, biology, and robotics, and intends to major in
biology and eventually attend medical school, see Decl. of Q.M. (attached as Ex. 1.2);
3) R.J., an African American who will be a senior, is consistently on her school’s honor
roll, belongs to the National Junior Honors Society, and participates in cheerleading,
choir, and a conflict resolution group, all while working part-time as a hostess at a
restaurant, see Decl. of R.J. (attached as Ex. 1.3); 4) A.J., a rising junior who identifies as
African American and American Indian, has a 3.8 GPA, has taken numerous honors
courses, and is heavily involved in extracurricular activities related to both art and
computer science, see Decl. of A.J. (attached as Ex. 1.4); and 5) I.N., a rising sophomore
who identifies as African American and Hispanic, has taken a number of honors courses,
has been dancing since she was two-years old, works as a baby sitter, and volunteers at an
agricultural project and a children’s services program, see Decl. of I.N. (attached as Ex.
1.5). With the exception of R.J., all Applicant Intervenors are North Carolina residents
currently enrolled in North Carolina high schools. R.J. is a resident of the District of
Columbia and if admitted to UNC-Chapel Hill, she will apply for a D.C. Tuition
Assistance Grant, which will provide up to $10,000 toward the difference between instate and out-of-state tuition at UNC-Chapel Hill.
2

The Applicant Intervenors will all have competitive applications for admission to
UNC-Chapel Hill. They seek to ensure that their applications are judged under an
admissions process that considers the whole of their applications, including the racial and
ethnic diversity they will bring to UNC-Chapel Hill, and that the admissions process
resulting from this litigation complies with the Constitution and Title VI, including not
having a disparate impact on minority applicants.
The Student Intervenors are: 1) Cecilia Polanco, a rising senior at UNC-Chapel
Hill who identifies as Hispanic, received the Morehead Cain Scholarship, supports the
current admissions policy, and although UNC-Chapel Hill was her dream school, often
feels invisible as a minority student, see Decl. of Cecilia Polanco (attached as Ex. 1.6);
2) Luis Acosta, a rising junior at UNC-Chapel Hill who identifies as Hispanic, is the first
member of his family to attend college, learned English as a second language, and
although UNC-Chapel Hill is more diverse than his hometown, observes that “sometimes
students can be unfair or insensitive to each other when an issue involving race or
ethnicity comes up on campus,” see Decl. of Luis Acosta (attached as Ex. 1.7); 3) Star
Wingate-Bey, a rising senior at UNC-Chapel Hill who always imagined herself going to
UNC-Chapel Hill, identifies as Black and Moorish American, seeks an educational
experience where there is “an increase in the number and diversity of underrepresented
racial groups admitted,” and notes that the administration sometimes responds to protests,
like the protests related to a campus building named after a noted Ku Klux Klan member,
in a way that “does not make students of color feel welcome on campus,” see Decl. of
Star Wingate-Bey (attached as Ex. 1.8); and 4) Laura Ornelas, a rising junior at UNC3

Chapel Hill who identifies as Hispanic, was one of only a handful of minority students
from her high school to attend a top-tier university, and observes that Latinos are
underrepresented at UNC-Chapel Hill, see Decl. of Laura Ornelas (attached as Ex. 1.9).
The Student Intervenors seek to ensure that the UNC-Chapel Hill educational
experience continues to be enhanced by a diverse student body and to present evidence of
the historical and current state of race relations and diversity at UNC-Chapel Hill.
III.

ARGUMENT
A.

Proposed Intervenors Are Entitled to Intervene as a Matter of Right

To intervene as of right under Federal Rule of Civil Procedure 24(a), a proposed
intervenor must establish that: 1) the application to intervene is timely; 2) the proposed
intervenor has an interest in the subject matter of the underlying action; 3) the denial of
the motion to intervene would “impair or impede the applicant’s ability to protect its
interest;” and 4) the applicant’s interest is “not adequately represented by the existing
parties to the litigation.” Houston Gen. Ins. Co. v. Moore, 193 F.3d 838, 839 (4th Cir.
1999) (citations omitted). “As a general matter, liberal intervention is desirable to dispose
of as much of a controversy involving as many apparently concerned persons as is
compatible with efficiency and due process.” United States v. Exxonmobil Corp., 264
F.R.D. 242, 245 (N.D. W. Va. 2010) (internal quotation marks and citations omitted).
1.

Proposed Intervenors’ Motion Is Timely

Although Rule 24 requires that a motion to intervene be “timely,” it does not
“define the term or specify rigid time limits.” Scardelletti v. Debarr, 265 F.3d 195, 202
4

(4th Cir. 2001) (quoting United States v. South Bend Comm’y Sch. Corp., 710 F.2d 394,
396 (7th Cir. 1983)), rev’d sub nom. Devlin v. Scardelletti, 536 U.S. 1 (2002). “In order
to properly determine whether a motion to intervene in a civil action is sufficiently
timely, a trial court in this Circuit is obliged to assess three factors: first, how far the
underlying suit has progressed; second, the prejudice any resulting delay might cause the
other parties; and third, why the movant was tardy in filing its motion.” Alt v. Envtl. Prot.
Agency, 758 F.3d 588, 591 (4th Cir. 2014) (citation omitted). Considering all three
factors, Proposed Intervenors have sought to intervene in a timely fashion.
First, the underlying suit is in its nascent stages. This motion coincides with the
deadline for Plaintiff to join additional parties or amend pleadings and is well in advance
of the deadline for Defendants to join additional parties or amend pleadings. See Order
(ECF No. 34) (adopting Defendants Rule 26(f) Report); Defs.’ Rule 26(f) Rep. at 4-5
(ECF No. 33). The discovery period set by the Court has just commenced and has eight
months remaining. See id. Courts have found motions to intervene timely at much later
stages of the litigation process. See, e.g., Grubbs v. Norris, 870 F.2d 343, 345-46 (6th
Cir. 1989) (allowing intervention nine years after the filing of complaint); Skinner v.
Weslaco Independent Sch. Dist., 220 F.3d 584, 584 (5th Cir. 2000) (unpublished)
(overturning district court’s finding that proposed intervenors’ motion was untimely
when it was filed over a year after the case was filed).
Second, the current parties are not prejudiced by any delay in the bringing of this
Motion. “[P]rejudice must be measured by the delay in seeking intervention, not the
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inconvenience to the existing parties of allowing the intervenor to participate in the
litigation.” Sierra Club v. Espy, 18 F.3d 1202, 1206 (5th Cir. 1994).
Here, there is no relevant prejudice to the parties. The Proposed Intervenors will
complete the discovery they would seek within the existing discovery deadlines and
would not otherwise disrupt any aspect of the litigation schedule. Although Proposed
Intervenors intend to submit evidence for the Court’s consideration, much of it will be
presented through declarations and expert testimony. Accordingly, the number of
depositions and the amount of written discovery would not be significantly increased by
permitting the participation of Proposed Intervenors.
Third, it did not become clear that the Proposed Intervenors’ interests would not
be fully represented in this litigation until Defendants submitted, and the Court adopted,
Defendants’ Rule 26(f) Report. Defendants’ list of areas and subjects on which they plan
to conduct discovery, see Defs.’ Rule 26(f) Rep. at 3, fails to include evidence that is
necessary to the most comprehensive defense of UNC-Chapel Hill’s consideration of race
in admissions and to ensure that the admissions process resulting from this litigation
complies with Proposed Intervenors’ rights under the Constitution and Title VI. See
Sierra Club, 18 F.3d at 1206 (noting that the appropriate “gauge of promptness is the
speed with which the would-be intervenor acted when it became aware that its interests
would no longer be protected by the original parties.”) (citation omitted).
For example, UNC-Chapel Hill does not seek to adduce or introduce evidence
related to UNC’s own past history of discrimination. This topic is critical to
6

understanding how the consideration of race in the admissions process helps remedy the
long history of segregation and discrimination in North Carolina, including within the
University itself. This history is also important to understanding UNC-Chapel Hill’s
interest in maintaining a diverse student body. Relatedly, UNC-Chapel Hill does not list
as a topic for discovery how a diverse student body enhances the lives and educations of
all UNC-Chapel Hill students, which is the compelling interest that, by UNC-Chapel
Hill’s own account, justifies its use of race in its admissions process.
UNC-Chapel Hill does not list as a discovery topic the issue of how certain racial
and ethnic groups are disadvantaged in the admissions process by certain factors such as
early admissions, standardized test performance, and alumni status, which currently
receive great weight. Such evidence is critical to establishing that UNC-Chapel Hill’s use
of race in admissions helps ameliorate an unwarranted disparate impact on minority
applicants caused by these, and potentially other, aspects of the admissions process. Any
court-ordered or voluntary resolution of this matter that eliminated or reduced the
consideration of race and ethnicity in the holistic review of applications would increase
the disparate impact on minority students.
2.

Proposed Intervenors Have a Significant Protectable Interest in
this Litigation

Proposed Intervenors have a protectable interest in this action. “While Rule 24(a)
does not specify the nature of the interest required for a party to intervene as a matter of
right, the Supreme Court has recognized that what is obviously meant . . . is a
significantly protectable interest.” Teague v. Bakker, 931 F.2d 259, 261 (4th Cir. 1991)
7

(quoting Donaldson v. United States, 400 U.S. 517, 531 (1971)) (internal quotation marks
omitted).
The Applicant Intervenors have a significantly protectable interest in having their
applications considered under a holistic admissions process that includes appropriate
consideration of race and thus complies with Title VI and the Constitution. Although
Applicant Intervenors have not yet submitted applications, three of them are rising high
school seniors who will submit college applications in the next few months. Applicant
Intervenors have an interest in preserving the aspects of the admissions process that
ensure their fair chance of admission to a school that, for North Carolina residents, stands
alone. See Sweatt v. Painter, 339 U.S. 629, 633-35 (1950) (observing that flagship state
university may offer benefits, including resources, faculty, prestige, and alumni networks,
that are superior to those available at other state universities). For North Carolina high
school students, there is no comparable school that offers the same quality education for
the same low in-state tuition, distinguishing it from a school like Harvard College where
applicants throughout the country have a similar level of interest in the school. See
Students for Fair Admissions, Inc., v. President & Fellows of Harvard Coll., 14-cv14176-ADB, 2015 WL 3683230, at *6 (D. Mass. June 15, 2015).
Courts have recognized that individuals whose chances of admission would be
tangibly and directly affected if an existing educational policy were ceased have a
protectable interest for purposes of intervention to defend that program. See Grutter v.
Bollinger, 188 F.3d 394, 398 (6th Cir. 1999) (proposed intervenors had “a substantial
8

legal interest in educational opportunity, which requires preserving access to the
University for African-American and Latino/a students and preventing a decline in the
enrollment of African-American and Latino/a students”); cf. Podberesky v. Kirwan, 38
F.3d 147, 162 n.* (4th Cir. 1994) (discussing minority students allowed to intervene to
defend scholarship program for African Americans at University of Maryland); Wooden
v. Board of Regents, 247 F.3d 1262, 1268 (11th Cir. 2001) (noting that organizations
representing minority applicants and African-American individuals had successfully
moved to intervene to defend the consideration of race in remedying Georgia’s formerlysegregated system of higher education). Courts have even found that individuals have a
protectable interest in educational policies whose benefits they have not yet received. For
example, in Brumfield v. Dodd, 749 F.3d 339 (5th Cir. 2014), the Fifth Circuit, which
applies a more stringent standard for a protectable interest than the Fourth Circuit,
concluded that parents who wanted their children to obtain school vouchers under a
program that had yet to be implemented had “an interest justifying intervention” into a
lawsuit regarding the program. 749 F.3d at 344.
Here, Applicant Intervenors have an interest in defending a program that enhances
their fair chance for admission to UNC-Chapel Hill. Plaintiff’s arguments for banning the
consideration of race in the admissions process and its proposed remedies squarely
implicate the Applicant Intervenors’ own rights to have their applications considered
under a policy that does not have a disparate impact on minorities.

9

Student Intervenors have an interest in ensuring that future applications are
considered under a holistic process that includes the lawful consideration of race.
Otherwise they cannot obtain the “educational benefits that flow from a diverse student
body,” including breaking down racial stereotypes, enabling students to better understand
persons of different races, preparing students for an increasingly diverse workforce and
society, and diminishing stereotypes and beliefs regarding minority students. Grutter v.
Bollinger, 539 U.S. 336, 330-33, 343 (2003); see Regents of Univ. of Cal. v. Bakke, 438
U.S. 265, 306 (1978) (controlling opinion of Powell, J.) (recognizing interest in
“obtaining the educational benefits that flow from an ethnically diverse student body”);
see, e.g., Decl. of Luis Acosta (attached as Ex. 1.7) (“I have been able to spend time with
some Indian and Asian students at UNC-Chapel Hill from whom I have learned a lot and
who broke down a lot of the stereotypes I held about people of their ethnic
background.”); Decl. of Cecilia Polanco (attached as Ex. 1.6) (“Having a diverse student
body exposes us to people who think, solve problems, and communicate differently – an
exposure that makes us more culturally competent and capable of interacting well with
people from different backgrounds.”); Decl. of Laura Ornelas (attached as Ex. 1.9) (“I
want to work in an international setting, so it is important for me to be around people who
have different backgrounds and world views.”); Decl. of Star Wingate-Bey (attached as
Ex. 1.8) (“If I am the only Black person or Black woman in a classroom setting it often
feels like I have to be the fact checker for a conversation or the spokesperson for my
entire race or gender.”).
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3.

Proposed Intervenors’ Interests May Be Impaired If
Intervention Is Denied

Parties seeking intervention need not establish that their interests will be impaired
– only that they may be impaired. Brumfield, 749 F.3d at 344-45; Grutter, 188 F.3d at
399 (“[A] would-be intervenor must show only that impairment of its substantial legal
interest is possible if intervention is denied. This burden is minimal.”) (quoting Mich.
State AFL-CIO v. Miller, 103 F.3d 1240, 1247 (6th Cir. 1997)). Proposed Intervenors’
interests may be impaired if intervention is denied.
First, as potential beneficiaries of the race-conscious admissions system currently
in use at UNC-Chapel Hill, Proposed Intervenors will clearly be harmed if the Court
finds the system unconstitutional and the replacement system reduces their chances of
admission. Grutter, 188 F.3d at 400 (“There is little room for doubt that access to the
University for African-American and Latino/a students will be impaired to some extent
and that a substantial decline in the enrollment of these students may well result if the
University is precluded from considering race as a factor in admissions.”). It is extremely
unlikely that UNC Chapel-Hill could devise an alternative admissions process that would
fully recreate its current level of diversity, maintain and encourage diversity within
different racial and ethnic groups, and otherwise fully protect Proposed Intervenors’
interests. And even if it could, Proposed Intervenors would still meet the impaired
interests prong because a finding that UNC Chapel-Hill’s current admissions policy is
unconstitutional “would make the ‘task of reestablishing the status quo . . . [more]
difficult and burdensome.’” Crossroads Grassroots Policy Strategies, No. 14-5199, 2015
11

WL 3513990, at *7 (D.C. Cir. June 5, 2015) (quoting Funds for Animals Inc. v. Norton,
322 F.3d 728, 735 (D.C. Cir. 2003)).
Second, Proposed Intervenors’ interests would be impaired if the resolution of the
case leads to an alternative admissions policy that limits UNC-Chapel Hill’s ability to
foster diversity or that violates Proposed Intervenors’ rights to be considered under a
process that does not have a disparate impact on minorities. This outcome could result if
the Court does not consider or weigh (or cannot consider or weigh because the record is
insufficiently developed) the history of discrimination at UNC-Chapel Hill, the
inextricable link between that history and UNC’s current compelling interest in student
body diversity, and the adverse effect that elements of the current admissions process
have on the diversity of the student population.
The failure to allow the intervention of parties with a greater interest in developing
the record can limit the arguments available not only to the trial court but also to the
appeals courts. For example, in Bakke, the Supreme Court rejected the University of
California’s proffered compelling interest in remediating the effects of past segregation,
noting that no evidence had been put on record of any “judicial, legislative, or
administrative findings of constitutional or statutory violations.” Bakke, 438 U.S. at 307
(Powell, J.). Earlier in that case, the trial court had denied the NAACP’s motion to
intervene to submit evidence on exactly that point. Pet. of NAACP for Leave to File as
Amicus Curiae on Pet. for Rehearing at 6, Bakke v. Regents of the Univ. of Cal., 553 P.
2d 1152 (Cal. 1976). By contrast, in Grutter, the trial court permitted intervenors to
12

participate fully in discovery and at trial. Grutter v. Bollinger, 137 F. Supp. 2d 821, 856
(E.D. Mich. 2001). In fact, the intervenors offered significantly more evidence than any
other party. See William C. Kidder, Affirmative Action in Higher Education: Recent
Developments in Litigation, Admissions, and Diversity Research, 12 Berkeley La Raza
L.J. 173, 176 & n.14 (2001).
The evidentiary record is critical in cases involving race-conscious admissions
programs because courts must conduct a detailed review of the evidentiary record. Bakke,
438 U.S. at 307, 310 (rejecting argument as to compelling interest because there was
“virtually no evidence in the record” on that point); see, e.g., Fisher v. Univ. of Tex. at
Austin, 133 S. Ct. 2411, 2421 (2013) (courts must “giv[e] close analysis to the evidence
of how the process works in practice”). A race-conscious admissions program must be
justified with tangible evidence as to a number of factors, including the compelling
interest that justifies considering race, the success of the program in meeting that interest,
the justifications for why alternative race-conscious programs would not sufficiently
satisfy that interest, and the experiential effect of the program on all affected participants.
Proposed Intervenors’ interests will be impaired if they are not allowed to intervene and
ensure such a record is built.
4.

UNC-Chapel Hill Will Not Adequately Represent Proposed
Intervenors’ Interests

In order to satisfy the last requirement for intervention by right, Proposed
Intervenors need only show that UNC-Chapel Hill’s representation of the Proposed
Intervenors’ interests “may be inadequate.” Trbovich v. United Mine Workers of Am., 404
13

U.S. 528, 538 n.10 (1972) (citation and internal quotation marks omitted). The
intervenor’s “burden of showing an inadequacy of representation is minimal.” Virginia v.
Westinghouse Elec. Corp., 542 F.2d 214, 216 (4th Cir. 1976).
There are two circumstances where courts presume that an attempted intervenor is
adequately represented, but neither applies here. First, a party’s representation is
presumptively adequate “where a proposed intervenor’s ultimate objective is the same as
that of an existing party[.]” Stuart v. Huff, 706 F.3d 345, 350 (4th Cir. 2013). This
presumption applies only where the interests of the intervenor and the party “align
precisely.” Brumfield, 749 F.3d at 345.
UNC-Chapel Hill’s interests diverge from Proposed Intervenors’ interests in
significant ways. UNC-Chapel Hill may not include certain defenses or develop specific
evidence that would not only support a finding that the existing admissions process is
permissible under the applicable constitutional and statutory provisions, but also show
that the current admissions process is necessary to comply with minority students’ rights
under the Constitution and Title VI. Cf. Ricci v. DeStefano, 557 U.S. 557, 563 (2009)
(“We conclude that race-based action like the City’s in this case is impermissible under
Title VII unless the employer can demonstrate a strong basis in evidence that, had it not
taken the action, it would have been liable under the disparate-impact statute.”) (emphasis
added).
UNC-Chapel Hill will not want to gather and emphasize the evidence of historical,
recent, or current race discrimination and segregation on its campus and in its admissions
14

process. Proposed Intervenors, however, will present evidence showing that UNC-Chapel
Hill’s current admissions policy is necessary in part because it helps remedy the long
history of segregation and discrimination in North Carolina, including within the
University itself. This history is inextricably linked to UNC-Chapel Hill’s compelling
interest in student body diversity. Proposed Intervenors will also present evidence related
to continuing racial tensions on campus, which reflect the need for even greater emphasis
on diverse perspectives and racial backgrounds within the campus community. See, e.g.,
Decl. of Cecilia Polanco (attached as Ex. 1.6) (stating, “I often feel like the
administration contributes to negative experiences among students of color by not
affirmatively standing in support of underrepresented students.”); Decl. of Star WingateBey (attached as Ex. 1.8) (stating, “when many UNC students of color were attempting to
have Saunders Hall, which is named after a UNC alumnus and member of the Ku Klux
Klan, renamed, it was very clear from the administration’s response to protestors that
UNC-Chapel Hill would not entertain that action . . . Such an attitude does not make
students of color feel welcome on campus.”).
Proposed Intervenors will further develop and present evidence that a critical
mass, or meaningful representation, of certain racial and ethnic groups – which is
necessary to produce the educational benefits that diversity is designed to produce – has
not yet been created on campus. Grutter, 539 U.S. at 318, 329-30. Proposed Intervenors
will also develop evidence regarding how certain aspects of UNC-Chapel Hill’s current
admissions process, such as its early action program, legacy and other preferences, and
15

consideration of SAT scores have a disparate impact on the admission of racial
minorities.
All of this evidence is relevant to the question of whether, in the absence of any
consideration of race or ethnicity, UNC-Chapel Hill’s admissions process violates Title
VI. UNC-Chapel Hill has been held liable for such violations in the past. See Adams v.
Bell, 711 F.2d 161, 163-64 (D.C. Cir. 1983) (discussing Title VI claims against North
Carolina that were unresolved until 1981). In sum, Proposed Intervenors will gather and
submit evidence that UNC-Chapel Hill is institutionally inclined – and has a strong
incentive – to avoid. This is a quintessential divergence of interests and, thus, the
interests here do not “align precisely.” Brumfield, 749 F.3d at 345.
Second, “where the party who shares the intervenor’s objective is a government
agency, the intervenor has the burden of making a strong showing of inadequacy.” Stuart,
706 F.3d at 350. In contrast to the circumstances here, this presumption has been applied
where government agencies or officials were obligated to defend a particular statute or
legislation. See State Police for Automatic Ret. Ass’n v. Difava, 164 F. Supp. 2d 141, 152
(D. Mass. 2001) (“[C]ourts have adopted a presumption in favor of adequate government
representation when the government sues as a plaintiff in its parens patriae capacity or
when the government defends a statute against attack.”); see also Stuart, 706 F.3d at 351
(in adopting the presumption of adequate representation by a government agency, noting
that the government is the best party to defend a duly-enacted statute). Here, Plaintiff
challenges a college’s admissions policy adopted by its governing board rather than a
16

statute adopted through a democratic legislative process. UNC-Chapel Hill is not
obligated to defend or maintain its admissions policy in the same way that the North
Carolina Attorney General has an “obligation to aggressively defend laws duly enacted
by the General Assembly.” United States v. North Carolina, No 13-cv-861, 2014 WL
494911 at *3 n.1 (M.D.N.C. Feb. 6, 2014); see also Marie v Moser, No. 14-cv-02518,
2014 WL 5800151, at *3 (D. Kan. Nov. 7, 2014) (whether or not a government entity is
obligated to defend a statute or policy is reviewed as part of adequacy determination).
It is quite plausible that UNC-Chapel Hill’s position on considering race in its
admissions process will change. UNC-Chapel Hill should not be presumed to be an
adequate representative because it is subject to shifting political pressures and can change
its admissions policy with a simple vote by its Board. See, e.g., N.M. Off-Highway
Vehicle Alliance v. U.S. Forest Serv., 540 F. App’x 877, 881 (10th Cir. 2013) (finding
that the government agency could not adequately represent the intervenors’ interests in
part because “there is no guarantee that the Forest Service’s policy will not shift during
litigation”); Kleissler v U.S. Forest Serv., 157 F.3d 964, 973–74 (3d Cir. 1998) (finding
inadequate representation and granting intervention in part because the court did not
believe that it was “realistic to assume that the [government agency’s] programs [would]
remain static or unaffected by unanticipated policy shifts”).
The political makeup of the UNC Board of Governors has changed dramatically
since the University, faced with the risk of losing federal funding, first began making
efforts to integrate and achieve greater diversity on campus. In recent months, the Board
17

of Governors has demonstrated a marked shift in governance by abruptly announcing the
resignation of UNC system president Tom Ross; closing three campus academic centers,
including UNC-Chapel Hill’s Center on Poverty, Work, and Opportunity; and voicing
concerns related to the work of UNC-Chapel Hill’s Center for Civil Rights, which was
founded by civil rights attorney Julius Chambers to advocate on behalf of minority and
low-income individuals.
Even if the governmental interest presumption were applied in this context,
Intervenors can overcome it. A showing of a likelihood of conflict or a divergence of
interests will defeat the presumption that the applicant’s interest is adequately represented
by existing parties. Cotter v. Mass. Ass’n of Minority Law Enforcement Officers, 219
F.3d 31, 35 (1st Cir. 2000) (finding inadequate representation where government was
unlikely to defend affirmative action based on deficiencies in current testing, rather than
past discrimination). As described above, such a divergence of interests is present here
because UNC-Chapel Hill and Proposed Intervenors will adduce and present different
evidence to defend the consideration of race and ethnicity in the current admissions
process and to describe why eliminating or altering the consideration of race and
ethnicity would violate minority applicants’ Title VI rights.
Moreover, UNC-Chapel Hill does not solely represent the interests of its students.
Rather, the University is accountable to a large consortium of different individuals and
entities, including faculty members, administrative officials, employees, parents, alumni,
state and federal government agencies, and funders. Courts have found that state actors
18

should not be presumed to represent the interests of individuals who have more targeted,
narrow interests than the existing party. See Brumfield, 749 F.3d at 346 (“We cannot say
for sure that the state’s more extensive interests will in fact result in inadequate
representation, but surely they might, which is all that the rule requires.”); In re Sierra
Club, 945 F.2d 776, 779-80 (4th Cir. 1991) (finding inadequate representation when state
agency represented “all of the citizens of the state” and proposed intervenor only
represented “a subset of citizens” concerned with a particular outcome); Kleissler, 157
F.3d at 972 (“[T]he presumption notwithstanding, when an agency’s views are
necessarily colored by its view of the public welfare rather than the more parochial views
of a proposed intervenor whose interest is personal to it, the burden is comparatively
light.”).
No presumption of adequate representation should be made here, where UNCChapel Hill is not defending a duly enacted statute, where UNC-Chapel Hill and
Proposed Intervenors have a divergence of interests regarding the evidence that needs to
be adduced and presented, and where UNC-Chapel Hill must consider the interests of a
wide array of parties.
B.

PROPOSED INTERVENORS ARE ENTITLED TO PERMISSIVE
INTERVENTION

Should the Court determine that Proposed Intervenors are not entitled to intervene
as of right, Proposed Intervenors urge the Court to allow permissive intervention. Federal
Rule of Civil Procedure 24(b) provides, in relevant part, that “[o]n timely motion, the
court may permit anyone to intervene who . . . has a claim or defense that shares with the
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main action a common question of law or fact.” Fed. R. Civ. P. 24(b)(1)(B). “In
exercising its discretion, the court must consider whether the intervention will unduly
delay or prejudice the adjudication of the original parties’ rights.” Fed. R. Civ. P.
24(b)(3).
First, as described above, this Motion is timely. Second, it is indisputable that
UNC-Chapel Hill and Proposed Intervenors’ defenses share common questions of law
and fact. Third, permitting intervention will not cause undue delay or prejudice to the
parties. Discovery has just begun and nearly eight months remain in the discovery period.
As discussed above, Proposed Intervenors intend to submit the majority of their evidence
in the form of declarations and expert testimony, ensuring that their intervention will not
compound discovery and cause undue delay. Proposed Intervenors will comply with the
schedule set by the Court and their participation would not require any party to seek to
alter any existing deadlines.
IV.

CONCLUSION
For the foregoing reasons, Proposed Intervenors request that the Court grant them

intervention as a matter of right under Federal Rule of Civil Procedure 24(a), or
alternatively, permissive intervention pursuant to Federal Rule of Civil Procedure 24(b).

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Dated: June 29, 2015

Respectfully submitted,
/s/ Reed Colfax
Reed Colfax*
Glenn Schlactus*
Sasha Samberg-Champion*
Laura Gaztambide-Arandes*
RELMAN, DANE & COLFAX PLLC
1225 19th Street NW, Suite 600
Washington, DC 20036
[e-mail]
[e-mail]
[e-mail]
[e-mail]
Tel: [phone]
/s/ Jack Holtzman
Jack Holtzman, N.C. Bar No. 13548
Christine Bischoff, N.C. Bar No. 41792
NORTH CAROLINA JUSTICE CENTER
224 South Dawson Street
Raleigh, NC 27601
[e-mail]
[e-mail]
Tel: [phone]
/s/ Jon M. Greenbaum
Jon M. Greenbaum*
LAWYERS’ COMMITTEE FOR CIVIL
RIGHTS UNDER LAW
1401 New York Avenue NW, Suite 400
Washington, DC 20005
[e-mail]
Tel: [phone]
ATTORNEYS FOR PROPOSED
DEFENDANT-INTERVENORS
* Special Appearance

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CERTIFICATE OF SERVICE
In accordance with Local Rule 5.3(b)(2), I hereby certify that this document filed
through the CM-ECF system on June 29, 2015 will be sent electronically to the registered
participants as identified on the Notice of Electronic Filing.
/s/ Reed N. Colfax
Reed N. Colfax

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