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

Filing 47

MEMORANDUM filed by Defendants ROGER AIKEN, W. LOUIS BISSETTE, JR, JAMES W. DEAN, JR, STEPHEN M. FARMER, JOHN C. FENNEBRESQUE, CAROL L. FOLT, H. FRANK FRAINGER, HANNAH D. GAGE, ANN B. GOODNIGHT, PETER D. HANS, THOMAS J. HARRELSON, HENRY W. HINTON, JAMES L. HOLMES, JR, RODNEY E. HOOD, W. MARTY KOTIS, III, G. LEROY LAIL, SCOTT LAMPE, STEVEN B. LONG, JOAN G. MACNEILL, HARI H. MATH, MARY ANN MAXWELL, W. EDWIN MCMAHAN, W.G. CHAMPION MITCHELL, ANNA SPANGLER NELSON, ALEX PARKER, R. DOYLE PARRISH, JOAN TEMPLETON PERRY, THERENCE O. PICKETT, DAVID M. POWERS, ROBERT S. RIPPY, THOMAS W. ROSS, HARRY LEO SMITH, JR, J. CRAIG SOUZA, GEORGE A. SYWASSINK, RICHARD F. TAYLOR, RAIFORD TRASK, III, UNIVERSITY OF NORTH CAROLINA, UNIVERSITY OF NORTH CAROLINA AT CHAPEL HILL, UNIVERSITY OF NORTH CAROLINA BOARD OF GOVERNORS, PHILLIP D. WALKER, LAURA I. WILEY re 46 MOTION to Stay Proceedings In Support filed by ROGER AIKEN, W. LOUIS BISSETTE, JR, JAMES W. DEAN, JR, STEPHEN M. FARMER, JOHN C. FENNEBRESQUE, CAROL L. FOLT, H. FRANK FRAINGER, HANNAH D. GAGE, ANN B. GOODNIGHT, PETER D. HANS, THOMAS J. HARRELSON, HENRY W. HINTON, JAMES L. HOLMES, JR, RODNEY E. HOOD, W. MARTY KOTIS, III, G. LEROY LAIL, SCOTT LAMPE, STEVEN B. LONG, JOAN G. MACNEILL, HARI H. MATH, MARY ANN MAXWELL, W. EDWIN MCMAHAN, W.G. CHAMPION MITCHELL, ANNA SPANGLER NELSON, ALEX PARKER, R. DOYLE PARRISH, JOAN TEMPLETON PERRY, THERENCE O. PICKETT, DAVID M. POWERS, ROBERT S. RIPPY, THOMAS W. ROSS, HARRY LEO SMITH, JR, J. CRAIG SOUZA, GEORGE A. SYWASSINK, RICHARD F. TAYLOR, RAIFORD TRASK, III, UNIVERSITY OF NORTH CAROLINA, UNIVERSITY OF NORTH CAROLINA AT CHAPEL HILL, UNIVERSITY OF NORTH CAROLINA BOARD OF GOVERNORS, PHILLIP D. WALKER, LAURA I. WILEY. (Attachments: # 1 Exhibit)(SCUDDER, MICHAEL)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
CASE NO. 1:14-CV-954
STUDENTS FOR FAIR
ADMISSIONS, INC.,
Plaintiff,
MEMORANDUM IN SUPPORT OF
DEFENDANTS’ MOTION TO STAY
PROCEEDINGS

v.

UNIVERSITY OF NORTH
CAROLINA et al.,
Defendants.
INTRODUCTION
The University of North Carolina at Chapel Hill (the “University”) and other
Defendants respectfully submit this Memorandum in Support of Defendants’ Motion to
Stay Proceedings. A stay of these proceedings is warranted because of the recent
decision by the Supreme Court of the United States to grant review in Fisher v.
University of Texas at Austin, No. 14-981 (“Fisher II”).
The primary issue before the Supreme Court in Fisher II—whether the Fifth
Circuit properly concluded that the University of Texas at Austin’s (“UT-Austin”) use of
racial preferences in its undergraduate admissions program complies with the Supreme
Court’s precedents—is the central issue in this case brought by Plaintiff Students for Fair
Admissions, Inc. challenging the University’s undergraduate admissions policy. Critical
questions in Fisher II will be whether UT-Austin’s admission policy is narrowly tailored
to achieve the educational benefits of diversity, what evidence UT-Austin must present to
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prove that proposition, and how a court must apply strict scrutiny to evaluate whether
UT-Austin has met its burden. Because Fisher II presents the Supreme Court with an
opportunity to clarify further the law governing how public universities may consider
race in the admissions process, it is certain to affect the standards that govern this
litigation.
Plaintiffs here seek declaratory and injunctive relief and challenge the current
operation of University’s admissions program. By any assessment, Fisher II will provide
dispositive guidance on the legal standards that will control this Court’s evaluation of
Plaintiff’s claims and, more immediately, the decisions the parties make in devising their
respective strategies and then assembling and acquiring evidence—fact and expert
evidence alike— to advance those strategies to prosecute and defend against Plaintiff’s
allegations. The potential benefit Plaintiff may obtain from a decision in this case prior
to the Supreme Court’s decision in Fisher II is outweighed by the practical ramifications
and benefit to both the parties and the Court that a stay will afford. Accordingly, the
Court should grant Defendants’ Motion to Stay.
STATEMENT OF FACTS
I.

PLAINTIFF’S COMPLAINT
Students for Fair Admissions, Inc. challenges the University’s undergraduate

admissions policies under 42 U.S.C. §§ 1981, 1983, and § 2000d and the Fourteenth
Amendment to the U.S. Constitution. According to the Complaint, one of Plaintiff’s
members (identified only as “Applicant”), who is not named in or a party to this lawsuit,
applied for but was denied admission to the University’s 2014 entering class. (Compl. ¶¶
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13-20.) Plaintiff alleges that the University’s undergraduate admissions process violates
the Fourteenth Amendment and federal civil rights laws for at least two reasons: (1)
although the University claims to use an applicant’s race and ethnicity only as one of
many factors within its holistic system, Plaintiff contends that statistical and other
evidence establishes that race is a “dominant factor” in admissions decisions; and (2) the
University is using race in admissions decisions when race-neutral alternatives exist that,
if adopted, would allow the University to achieve the desired diversity in its student body.
(Id. ¶¶ 5, 17, 65-66, 119-20, 125, 140-41, 145.)
Plaintiff’s Complaint is replete with references to the Supreme Court’s higher
education admissions decisions in recent years, including Grutter v. Bollinger, 539 U.S.
306 (2003) and Fisher v. University of Texas at Austin, 133 S. Ct. 2411 (2003) (“Fisher
I”). (See, e.g., Compl. ¶¶ 2, 4, 7, 147, 181, 185-186, 188-196.) Indeed, Plaintiff devotes
an entire section of its Complaint to the “Governing Law,” going to great lengths to recite
and quote extended passages from Grutter and Fisher I, among other decisions, on the
contours and requirements of strict scrutiny and narrow tailoring. (Id. ¶¶ 174-195.) At
one point—again quoting Fisher I—Plaintiff strives to underscore that “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.” (Id. ¶
195.) There is no question, in short, that the Supreme Court’s admissions precedents
provide the foundation for Plaintiff’s Complaint.
In answering the Complaint, Defendants denied Plaintiff’s allegations and
underscored their confidence that the University’s undergraduate admissions policy,
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which permits race and ethnicity to be considered as one among many factors as part of a
holistic review of each applicant, reflects careful adherence to the legal direction
provided to date by the Supreme Court. (Doc. 30.) In light of the Supreme Court’s
decision to grant review in Fisher II, however, that framework may soon be altered. At
the very least, very significant additional direction is certain to be forthcoming from the
Supreme Court in Fisher II.
II.

STATUS OF LITIGATION
Plaintiff filed its Complaint on November 17, 2014. (Doc. 1.) After agreeing with

Plaintiff to a stipulation that narrowed the causes of actions and defendants within the
case (Doc. 29), Defendants answered the Complaint on March 24, 2015. On May 4,
2015, the parties submitted competing Rule 26(f) Reports to the Court. Following the
Initial Pretrial Conference, on May 14, 2015, Magistrate Judge Webster issued an order
adopting Defendants’ Rule 26(f) Report with a single modification. (Doc. 32, 33, 34.)
Pursuant to that order, the parties must conclude discovery by February 15, 2016 and
submit dispositive motions on March 31, 2016. (Doc. 34.) Discovery is currently
underway, with the parties having exchanged initial interrogatories and document
requests.
It is clear from the parties’ discovery requests and related discussions that both
sides—as the Court would expect in litigation of this importance—are approaching
discovery and the development of evidence with great care and attention to the precise
requirements of the legal framework set forth in Grutter and Fisher I, among other
decisions, and informed by Justice Powell’s separate opinion in Regents of the Univ. of
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Cal. v. Bakke, 438 U.S. 265, 305 (1978). That framework is now sure to be refined in
light of the Supreme Court’s decision once again to revisit the constitutional precepts
governing higher education admissions.
III.

THE SUPREME COURT’S GRANT OF REVIEW IN FISHER II
On June 29, 2015, the Supreme Court granted Abigail Fisher’s petition for a writ

of certiorari. In doing so, the Court agreed to consider for the second time in as many
years whether UT-Austin’s undergraduate admissions program—specifically, the
program in place to fill seats in the incoming class not filled as a result of the Texas law
admitting any applicants who graduated in the top 10% of their high school class—is
narrowly tailored and otherwise complies with recent precedents on affirmative action in
higher education. Without modification, the Court granted review on the question
presented by Ms. Fisher in her petition:
Whether the Fifth Circuit’s re-endorsement of the University of Texas at
Austin’s use of racial preferences in undergraduate admissions decisions
can be sustained under this Court’s decisions interpreting the Equal
Protection Clause of the Fourteenth Amendment, including Fisher v.
University of Texas at Austin, 133 S. Ct. 2411 (2013).
The issues before the Court in Fisher II, as explained more fully below, are at the
epicenter of the challenge Plaintiff has leveled here at the University’s admission policy.
Indeed, there is no question that the present litigation against the University is part of a
broader effort, as Plaintiff makes clear in its Complaint—filed by the same counsel who
represent Ms. Fisher—to persuade the Supreme Court to change the legal standards
governing considerations of race and ethnicity in higher education admissions. (See, e.g.,
Compl. ¶¶ 216-218, 221-223.)
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ARGUMENT
The Supreme Court has “long recognized that courts have inherent power to stay
proceedings and ‘to control the disposition of the causes on its docket with economy of
time and effort for itself, for counsel, and for litigants.’” Stone v. I.N.S., 514 U.S. 386,
411 (1995) (quoting Landis v. N. Am. Co., 299 U.S. 248, 254 (1936)). In exercising its
authority to grant a discretionary stay, the court “must weigh competing interests and
maintain an even balance.” Landis, 299 U.S. at 254.
The Fourth Circuit has made clear that a district court may exercise its discretion
to stay a civil matter pending a Supreme Court decision that could control the outcome.
See Hickey v. Baxter, 833 F.2d 1005, 1005 (4th Cir. 1987) (unpublished table decision)
(“We find that the district court acted within its discretion in staying proceedings while
awaiting guidance from the Supreme Court in a case that could decide relevant issues.”).
Consistent with this principle, district courts within this Circuit have exercised this
discretion in staying cases when a forthcoming higher court decision is poised to resolve
a central issue in the pending litigation. See Harris v. Rainey, No. 5:13-cv-00077-MFU,
2014 WL 1292803, at *2 (W.D. Va. Mar. 31, 2014) (granting motion to stay until the
Fourth Circuit ruled in a separate matter); Norville v. Anne Arundel Cnty. Bd. of Educ.,
No. CIV.A. MJG-99-764, 1999 WL 1267696, at *6 (D. Md. Nov. 23, 1999) (“Given the
issues identified for decision, the Supreme Court’s decision will control the Board’s
Eleventh Amendment immunity argument in the instant case. Accordingly, this Court
will stay all proceedings against the Board pending the Supreme Court’s decision.”);
Stoddard v. Wyeth, No. 4:08-cv-00173-H (E.D.N.C., Jan. 11, 2011) (granting motion to
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stay proceedings to promote judicial efficiency and noting that the Supreme Court’s
pending decision would likely have a direct impact on the litigation).
Indeed, district courts within this Circuit have sua sponte stayed proceedings
because of a pending Supreme Court decision. See McGee v. Cole, No. 3:13-cv-24068
(S.D.W.Va., Sept. 16, 2014) (“Because of the overlap in the issues present in that case
and the one before this Court, the Court sua sponte orders that the instant case be stayed
pending a decision from the Supreme Court.”); Collins v. Hodges, 2:01-2343-RBH
(D.S.C., June 28, 2006) (sua sponte staying the case because “[i]nasmuch the decision by
the South Carolina Supreme Court in Cannon may have some import regarding the issues
in the within case, the Court finds it appropriate to stay the case”).
Other courts around the country have similarly recognized that a court is
empowered to “properly exercise its staying power when a higher court is close to
settling an important issue of law bearing on the action.” Sikhs for Justice v. Nath, 893 F.
Supp. 2d 598, 622 (S.D.N.Y. 2012); see also Carter v. U.S., No. 1:06-cv-225, 2007 WL
2439500, at *3 (D. Vt. Aug. 23, 2007) (“It is common practice in this Circuit to postpone
the final disposition of a case pending an upcoming decision in the United States
Supreme Court.”); Colby v. Publix Super Mkts., Inc., No. 2:11-cv-590-RDP, 2012 WL
2357745, at *3 (N.D. Ala. June 15, 2012) (staying action where the “Supreme Court’s
decision in [First Am. Fin. Corp. v.] Edwards may affect the outcome of this matter”);
Cardenas v. AmeriCredit Fin. Servs. Inc., No. 09-cv-4978, 2011 WL 846070, at *3 (N.D.
Cal. Mar. 8, 2011) (staying litigation pending the Supreme Court’s decision in AT&T
Mobility LLC v. Concepcion).
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I.

AWAITING A DECISION IN FISHER II WILL PROMOTE JUDICIAL
ECONOMY AND AVOID HARDSHIP TO THE PARTIES AND THE
COURT ITSELF.
A.

Fisher II Is Certain To Provide Essential Guidance And Clarity On
The Standards That Will Control The Resolution Of Plaintiff’s Claims
In This Litigation.

A stay of the proceedings will conserve judicial resources as the issues front and
center in Fisher II are the same issues certain to dominate this litigation, as evidenced by
the allegations in the Complaint and Plaintiff’s initial discovery requests. Among other
issues, the Supreme Court is likely to provide some degree of guidance, if not dispositive
direction, on at least the following issues:
 The legal and evidentiary requirements of the narrow tailoring test
announced in Grutter and reinforced in Fisher I.
 The requirements of the obligation imposed upon universities, as part of the
narrow tailoring test, to examine race-neutral alternatives before permitting
consideration of race in admission decisions.
 The facts and evidence pertinent to establishing how an admissions
program is being implemented in practice.
 The evidence required to establish the educational benefits sought to be
achieved through a race-conscious admission program designed to yield or
increase student body diversity.
 The definition and contours of what constitutes a “critical mass” of
diversity.
Granting a stay to await guidance from the Supreme Court to resolve issues
directly relevant to the case at hand is a proper use of the Court’s inherent power to stay
proceedings. See Hickey, 833 F.2d at 1005 (affirming district court’s stay of proceedings
in light of pending Supreme Court decision); Fisher-Borne v. Smith, No. 1:12-cv-589-

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WO-JEP (M.D.N.C., June 2, 2014) (staying proceedings pending the Fourth Circuit’s
decision in a separate case in part because any decision issued by the district court
“would need to be re-evaluated in light of the decision ultimately issued [by the Fourth
Circuit], which would cause inefficiency and uncertainty in the near term”); Norville,
1999 WL 1267696, at *6 (granting stay because pending Supreme Court decision would
address argument at issue within the litigation).
Staying these proceedings until Fisher II is decided would avoid the waste of
judicial resources that would result from the Court evaluating and deciding dispositive
motions under what is certain to be a refined—if not changed—legal framework.
B.

A Stay Will Avoid Hardship To Both Parties Caused By Duplicative
Discovery and Briefing.

A stay of proceedings will conserve not only the resources of this Court, but also
those of the parties. Although the University is confident that its admissions policies
comply with the law, the decision in Fisher II is certain to provide controlling direction in
this litigation. If the Supreme Court in any way alters the legal standards governing the
use of race in university admissions, the University would have to review and evaluate its
admissions process to determine whether it comports with those new standards. If the
University, as a result of that determination, modifies or refines its existing policies, the
discovery Plaintiff seeks relating to the University’s current policies and practices may
be largely irrelevant or, at the very least, incomplete.
Even if the Supreme Court somehow does not modify the main attributes of the
legal framework, it is difficult to conceive of an outcome in Fisher II that will not

9

directly and significantly influence the ways in which the parties approach their
respective burdens—both from an evidentiary and strategic perspective—and assemble
their respective positions.
These points are not abstract. Take, for example, the narrow tailoring test. What
the Supreme Court says (and does not say) in Fisher II about the precise contours and
mandates of that requirement may modify existing law, in ways big or small. The
guidance provided by the Supreme Court will directly affect the facts and evidence,
including expert evidence, the University must marshal to demonstrate that it is
permissibly considering race and ethnicity in admissions decisions and further whether
any race-neutral alternative is available to yield the same desired critical mass of
diversity on the Chapel Hill campus.
All of this work is presently occurring at significant expense. Litigating a case
like this is expensive—the discovery phase especially so. The University must produce
very substantial amounts of documents that require significant time and effort to
assemble and prepare for production. Some of the documents and information being
sought in discovery also implicate serious individual privacy considerations—an issue
that will consume considerable time and expense by the parties (and almost certainly the
Court) to address and properly manage.
Granting a stay would allow the parties to know with clarity the legal standards
and burden they must meet and would eliminate the significant risk that, once Fisher II is
decided, the Court will be forced to call a false start and send the parties all or part of the
way back to the starting line on discovery matters—all at significant time and expense.
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Granting Defendants’ Motion to Stay would all but eliminate the possibility that the
original burden and expense endured by the parties would be for naught.
II.

A STAY WOULD NOT UNDULY PREJUDICE PLAINTIFF.
If there is a possibility that the stay could be detrimental to another party, then the

movant must justify it by “clear and convincing circumstances outweighing” such
possible harm. Williford v. Armstrong World Indus., Inc., 715 F.2d 124, 127 (4th Cir.
1983). Although Defendants acknowledge that Plaintiff may view a stay as detrimental
given the interest the alleged “Applicant” purportedly has expressed to transfer to the
University in the event Plaintiff prevails in the litigation (Compl. ¶ 20), this prejudice is
minimal and outweighed by the substantial benefits that a stay would achieve for all
parties and the Court.
Defendants do not seek an open-ended, indefinite stay, but rather a stay to await a
decision by the Supreme Court that, as explained, will provide essential and indeed
controlling direction to the Court and parties here. While it is undeniable that a decision
in Fisher II cannot reasonably be expected before June 2016—near the end of the Court’s
next Term—it is equally true that this case is in its early stages and of significant
complexity.
Unlike other circumstances where a case is in the midst of discovery or on the eve
of trial, a stay now would not impose additional harm upon Plaintiff. Indeed, under the
current scheduling order, dispositive motions are due March 31, 2016. Because the
Supreme Court has already granted review in Fisher II, the decision can be expected by
or before the end of June 2016. Therefore, it is likely that by the time dispositive motion
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briefing is complete and this Court is ready to issue a decision, Fisher II could be decided
and the parties sent back to redo or supplement their discovery efforts or to recraft their
summary judgment briefing. Consequently, the stay will not delay the litigation any
more than if the parties reached a full and final resolution and then had to effectively redo discovery and dispositive motion briefing as a result of a June 2016 Fisher II decision.
In these circumstances, the judicial efficiencies achieved and hardships that all
parties would avoid as a result of a stay are clear and convincing circumstances that
outweigh any potential harm to Plaintiff.
CONCLUSION
For these reasons, the Court should grant Defendants’ Motion to Stay Proceedings.
Respectfully submitted,
/s/ Michael Scudder
Michael Scudder
Skadden, Arps, Slate,
Meagher & Flom, LLP
155 North Wacker Drive
Chicago, IL 60606-1720
[phone]
E: [e-mail]

ROY COOPER
Attorney General

/s/ Lisa Gilford
Lisa Gilford
Skadden, Arps, Slate,
Meagher & Flom, LLP
300 South Grand Ave.
Suite 3400
Los Angeles, CA 90071
[phone]
E: [e-mail]
Attorneys for Defendants

/s/ Matthew Tulchin
Matthew Tulchin
Assistant Attorney General
NC State Bar No. 43921
E: [e-mail]
NC Department of Justice
Post Office Box 629
Raleigh, NC 27602-0629
T: [phone]
F: [phone]
Attorneys for Defendants

/s/ Stephanie Brennan
Stephanie Brennan
Special Deputy Attorney General
NC State Bar No. 35955
E: [e-mail]

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CERTIFICATE OF SERVICE
I hereby certify that, on July 6, 2015, I electronically filed the foregoing
MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS’ MOTION TO
STAY PROCEEDINGS with the Clerk of Court using the CM/ECF system, which will
send notification of such filing to all registered CME/ECF users in the case.
This 6th day of July, 2015.

/s/ Michael Scudder
Michael Scudder
Skadden, Arps, Slate,
Meagher & Flom, LLP
155 North Wacker Drive
Chicago, IL 60606-1720
[phone]
E: [e-mail]
Attorney for Defendants