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

Filing 51

RESPONSE in Opposition re 39 MOTION to Intervene filed by ROGER AIKEN, W. LOUIS BISSETTE, JR, JEFFERSON W. BROWN, W. LOWRY CAUDILL, PHILLIP L. CLAY, HAYWOOD D. COCHRANE, DONALD WILLIAMS CURTIS, JAMES W. DEAN, JR, CHARELS G. DUCKETT, STEPHEN M. FARMER, JOHN C. FENNEBRESQUE, CAROL L. FOLT, H. FRANK FRAINGER, HANNAH D. GAGE, ALSTON GARDNER, ANN B. GOODNIGHT, PETER T. GRAUER, PETER D. HANS, THOMAS J. HARRELSON, HENRY W. HINTON, JAMES L. HOLMES, JR, RODNEY E. HOOD, KELLY MATTHEWS HOPKINS, W. MARTY KOTIS, III, G. LEROY LAIL, SCOTT LAMPE, STEVEN LERNER, 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, ANDREW HENRY POWELL, DAVID M. POWERS, ROBERT S. RIPPY, THOMAS W. ROSS, SALLIE SHUPING-RUSSELL, HARRY LEO SMITH, JR, J. CRAIG SOUZA, DWIGHT D. STONE, 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, UNIVERSITY OF NORTH CAROLINA BOARD OF TRUSTEES, PHILLIP D. WALKER, LAURA I. WILEY. Replies due by 8/10/2015. (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2, # 3 Exhibit Exhibit 3, # 4 Exhibit Exhibit 4)(BRENNAN, STEPHANIE)

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,
DEFENDANTS’ RESPONSE TO
MOTION TO INTERVENE

v.

UNIVERSITY OF NORTH
CAROLINA et al.,
Defendants.
INTRODUCTION
Five high school students who have expressed an intent to apply to the University
of North Carolina at Chapel Hill (the “University”), together with four current University
students, seek to intervene as parties to this case in defense of the University’s
admissions program “to ensure that the UNC-Chapel Hill educational experience
continues to be enhanced by a diverse student body.” (Dkt. 40 at 4) The University
values the perspectives and experiences of these movants, appreciates their desire to
defend the University’s admissions policy, and welcomes their participation in the case in
some capacity. The movants’ chosen vehicle to participate in the case, however, raises
concerns about the case management challenges certain to arise if these movants (along

with other potential intervenors who may seek intervention in the future) 1 are granted full
party status.
The University stands behind its admissions process and is ready and able to
vigorously defend its constitutionality. Accordingly, movants’ interests are adequately
represented and the standards for intervention as of right are not met.

Moreover,

although the Court has the discretion to grant permissive intervention, allowing these
movants and other interested parties to be involved in the case as parties would
significantly complicate the litigation, particularly with respect to the conduct of
discovery and management of privacy issues. Thus, if the Court is inclined to grant
permissive intervention, the University respectfully requests that movants’ participation
in the case be subject to reasonable limitations for the efficient conduct of the case.
In the parallel case filed by Plaintiff against Harvard, potential intervenors also
represented by the Lawyers’ Committee for Civil Rights Under Law were denied the
opportunity to intervene. The court there determined that their perspectives could be
heard more properly through their participation as amicus curiae. Here as well, allowing
participation in that manner would allow for the movants’ views to be heard without
unduly complicating or delaying the case.

1

These movants are not the only students and potential students who may assert an interest in
the litigation. Indeed, counsel for Defendants understands that another organization is
considering a motion to intervene in this case on behalf of a different group of potential
intervenors. It might be difficult to justify inclusion of one group of students over another,
but the potential complications from multiple intervenors (and their various lawyers) are
substantial.

2

ARGUMENT
I.

Movants Should Not Be Granted Intervention As Of Right, Because Their
Interests Are Adequately Represented By Defendants.
Federal Rule of Civil Procedure 24(a)(2), providing for intervention as of right,

states that:
On timely motion, the court must permit anyone to intervene
who . . . claims an interest relating to the property or
transaction that is the subject of the action, and is so situated
that disposing of the action may as a practical matter impair
or impede the movant’s ability to protect its interest, unless
existing parties adequately represent that interest.
Fed. R. Civ. P. 24(a)(2).
The Fourth Circuit has interpreted Rule 24(a)(2) to provide for intervention only if
three conditions are met. Teague v. Bakker, 931 F.2d 259, 260-61 (4th Cir. 1991). First,
the proposed intervenors must prove an interest in the subject matter of the litigation. Id.
at 260-61; United States v. North Carolina, No. 1:13CV861, 2014 WL 494911, at *2
(M.D.N.C. Feb. 6, 2014).

Second, the proposed intervenors must show that the

protection of their interests would be impaired because of the litigation. Teague, 931
F.2d at 261; North Carolina, 2014 WL 494911, at *2. Finally, the proposed intervenors
must demonstrate that their interests are not being adequately represented by the existing
Defendants.

Teague, 931 F.2d at 261; North Carolina, 2014 WL 494911, at *2.

Although the Fourth Circuit construes the standard for intervention liberally, the
proposed intervenors still must meet every element of the test. See Feller v. Brock, 802
F.2d 722, 729 (4th Cir. 1986); see also Stuart v. Huff, No. 1:11-CV-804, 2011 WL
6740400, at *1 (M.D.N.C. Dec. 22, 2011) aff'd, 706 F.3d 345 (4th Cir. 2013) (same).
3

Here, the movants cannot demonstrate that their interests are not being adequately
represented by the University and its counsel. “When the party seeking intervention has
the same ultimate objective as a party to the suit, a presumption arises that its interests are
adequately represented. . . .” Virginia v. Westinghouse Electric Corp., 542 F.2d 214, 216
(4th Cir. 1976). In the present litigation, adequacy is presumed, because movants and the
existing Defendants have precisely the same goal: a determination that the University’s
admissions process complies with the Fourteenth Amendment and other federal law.
Both movants and the University share a commitment to diversity in admission and
support the University’s current admissions policy. Cf. Stuart, 2011 WL 6740400, at *3
(denying intervention and finding adequacy of representation where both proposed
intervenors and State sought to uphold abortion law).
Moreover, the Fourth Circuit has held that movants “must mount a strong showing
of inadequacy,” where the party is a governmental agency. Stuart v. Huff, 706 F.3d 345,
352 (4th Cir. 2013). “To hold otherwise,” the Fourth Circuit has emphasized, “would
place a severe and unnecessary burden on government agencies as they seek to fulfill
their basic duty of representing the people in matters of public litigation.” Id. Here, the
University is a state agency, Huang v. Bd. of Governors of the Univ. of N.C., 902 F.2d
1134, 1139 (4th Cir. 1990), and the University Defendants are represented by the North
Carolina Department of Justice, another state agency, as lead counsel.

Given the

governmental status of the University, any showing of inadequacy must be strong.
Movants’ contention that this high standard should not apply simply because the
University is defending the constitutionality of a duly-enacted program rather than a
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statute is unavailing. As with Stuart and the other cases in which this high burden has
been applied, this case is a “public law litigation that may affect great numbers of
citizens.” See Stuart, 706 F.3d at 351. The University has the responsibility, by statute,
of serving the public interest, as it is “dedicated to the service of North Carolina and its
people,” N.C.G.S. § 116-1(b); thus, the public representation rationale for a high standard
is squarely applicable.
In any event, the movants can neither overcome the presumption of adequacy nor
make any showing of inadequacy as required for intervention as of right. To rebut the
presumption of adequacy, movants ordinarily must show “adversity of interest, collusion,
or nonfeasance.” Westinghouse, 542 F.2d at 216.
Movants do not claim collusion or nonfeasance. They contend only that there is
adversity of interest, but such adversity does not exist based on differences of opinion
related to strategy where Defendants share the movants’ ultimate goal. The movants
maintain that there is a divergence of interests because they would develop record
evidence and highlight particular factors that they speculate the University might not
choose to focus on, such as a history of discrimination against minorities and current
campus climate issues. (Dkt. 40 at 14-15)
Movants’ assertions about Defendants’ strategy choices are premature at this stage
of the litigation. 2 Regardless, differences “over how to approach the conduct of the

2

Movants’ attempt to rely on the Rule 26(f) report’s list of subjects about which the parties
anticipate taking discovery is misplaced. Not only is that document an early effort to distill
topics for discovery in the case, but the subjects about which Defendants may seek discovery
(cont’d)

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litigation,” including which evidence to develop and present, do not demonstrate
inadequacy of representation. Stuart, 706 F.3d at 353-54; see also Perry v. Prop. 8
Official Proponents, 587 F.3d 947, 954 (9th Cir. 2009); Saldano v. Roach, 363 F.3d 545,
555 (5th Cir. 2004); Chiglo v. City of Preston, 104 F.3d 185, 188 (8th Cir. 1997). As the
Court recognized in Stuart:
It is not unusual for those who agree in principle to dispute
the particulars. To have such unremarkable divergences of
view sow the seeds for intervention as of right risks
generating endless squabbles at every juncture over how best
to proceed. There is much to be said, frankly, for simplifying
rather than complicating the litigation process.
Stuart, 706 F.3d at 354.
The movants also contend that the University could reverse course on their
defense of the admissions program due to political influences. (Dkt. 40 at 17) This claim
however is pure speculation and, in any event, any such possibility does not support
movants’ intervention now. Despite movants’ allegations about political changes in the
UNC System, Defendants have demonstrated, through their negotiation of the dismissal
of certain claims by stipulation, Dkt.29, the filing of a detailed and thorough answer, Dkt.
30, the retention of a national law firm to assist with the litigation, and otherwise, that
they are committed to forcefully defending the University’s admissions program. The
Harvard court addressed a similar contention by the proposed intervenors in that case and
________________________
(cont’d from previous page)

of Plaintiff would not necessarily overlap with the subjects for which Defendants will seek to
present their own evidence. For example, there is no reason Defendants would seek
discovery from Plaintiff – a non-profit organization representing a rejected applicant – about
historical discrimination at the University or the campus climate.

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rejected it, noting that if the remote possibility Harvard decided to settle or fails to
appeal an adverse ruling, the movants could renew their intervention request at that time.
(Ex. 1, Students for Fair Admissions v. President and Fellows of Harvard, No. 14cv-14176-ADB (D. Mass) (“Harvard lawsuit”), Order, Dkt. 52 at 16)
Movants further assert that their interest in the litigation is more specific than that
of the University. Notably, the Fourth Circuit has squarely rejected the argument in
support of intervention that, as the class of beneficiaries protected by a law, the interests
in defending it are “stronger” and more “specific” than the state’s general interest.
Stuart, 706 F.3d at 353.
The motion to intervene here follows similar motions in other cases involving
challenges to the consideration of race in the admission process. Courts considering
those motions in recent cases have rejected the arguments being made by intervenors
here.

In the Harvard lawsuit, the court rejected the proposed intervenors’ similar

arguments and determined that their interests were adequately represented by Harvard.
See Ex. 1, Harvard lawsuit, Order, Dkt. 52, at 15-20. Likewise, in the Fisher case, the
district court denied motions to intervene where the potential intervenors argued that they
would present evidence on issues the defendants might not raise. See Ex. 2, Fisher v.
Univ. of Texas at Austin, No. 08-cv-263 (W.D. Tex.) (“Fisher lawsuit”), Cortez Mot. to
Intervene, Dkt. 72 at 19 (noting that the defendants might “be hesitant to advance any
relevant arguments advocating affirmative action as a remedial step that would expose
their own history of past discrimination or to address ongoing problems with race
relations on the campus”); Ex. 3, Fisher lawsuit, Stanton Mot. to Intervene, Dkt. No. 63
7

at 18 (“Proposed Intervenors may present evidence regarding … areas of concern that
Defendants may be reluctant, if not unwilling to raise,” including “the disparate impact
on African-American applicants of other admissions criteria used by UT” and “existing
and past racial tensions and discrimination experienced by African-American students at
UT[.]”).; Ex. 4, Fisher lawsuit, Order, Dkt. No. 83 (denying motions to intervene). So,
too, here: Defendants’ representation is adequate and intervention as of right should be
denied.
II.

Intervention Could Delay The Case And Heighten Already Difficult
Privacy Issues; Thus, If The Court Were To Grant Permissive
Intervention, It Should Reasonably Limit Participation In The Case.
Under Federal Rule 24(b), a district court may grant permissive intervention when

the proposed intervenor “has a claim or defense that shares with the main action a
common question of law or fact.” Fed. R. Civ. P. 24(b)(1)(B). District courts are “vested
with substantial discretion to deny permissive intervention where inappropriate.” Shaw v.
Hunt, 154 F.3d 161, 168 (4th Cir. 1998). In exercising this discretion, district courts are
required to consider “whether the intervention will unduly delay or prejudice the
adjudication of the original parties’ rights.” Fed. R. Civ. P. 24(b)(3); see also North
Carolina, 2014 WL 494911, at *5 (denying permissive intervention where participation
of the intervenors would “consume additional and unnecessary judicial resources, further
complicate the discovery process, potentially unduly delay the adjudication of the case on
the merits, and generate little, if any, corresponding benefit to the existing parties”).
In Stuart, the Court of Appeals affirmed the district court’s denial of a motion to
intervene.

706 F.3d at 355.

The district court had denied permissive intervention
8

because (1) “[a]dding three groups of intervenors would necessarily complicate the
discovery process and consume additional resources of the court and the parties”; (2)
intervention would “likely result in undue delay in an adjudication on the merits”; and (3)
there was no countervailing benefit, because the existing defendants were pursuing the
same ultimate objectives as the proposed intervenors. Id.
The same reasoning should control here.

Adding two groups of intervenors

(students and potential applicants) would pose significant case management challenges
and privacy concerns. At Defendants’ request, the Court placed this case on the Middle
District’s exceptional case management track and allowed nine months total of fact and
expert discovery. (Dkt. 34 & 33) The parties have each served written discovery and
have otherwise been moving forward in accordance with the schedule. If movants are
permitted to participate in discovery, it could add to the parties’ discovery burdens,
complicate the discovery process (by adding multiple layers of coordination challenges),
and cause unnecessary delays. Furthermore, Plaintiffs have requested access to highly
personal and sensitive materials, including applications for admission that are protected
under the Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. § 1232g, and
North Carolina law, N.C.G.S. § 132-1.1(f).

Allowing other students and potential

applicants to access these materials elevates the privacy intrusion and, for potential
applicants, poses the possibility of an unfair advantage in the admissions process.
If the Court nonetheless decides to grant permissive intervention, it has full
discretion to impose limitations on the intervenors’ participation. See e.g., Wright &
Miller at al., 7C Fed. Prac. & Proc. Civ. § 1922 (3d ed.) (“Since the trial court has full
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discretion to grant or deny an application for permissive intervention under Rule 24(b), it
may if it chooses impose conditions on its grant of the application. There are many
reported instances in which conditions of this kind have been imposed.”); Backus v. S.
Carolina, No. 3:11-CV-03120-HFF, 2012 WL 406860, at *3 (D.S.C. Feb. 8, 2012)
(conditioning a grant of permissive intervention on the condition that the intervenor
comply with the existing scheduling order).

If the Court were to grant permissive

intervention, therefore, Defendants respectfully request that the Court limit the
participation of intervenors to briefing on dispositive motions and the submission of
declarations and order that movants not have access to any confidential information that
may be produced in discovery between the parties.
III.

As the Court Determined In The Harvard Case, These Movants Can
Meaningfully Participate In The Case As Amici Curiae.

Where, as here, proposed intervenors’ interests are aligned with an existing party
but they nonetheless may possess helpful information and views, courts may deny
intervention and instead allow the third parties to appear in the litigation as amicus
curiae. Cf. Stuart, 706 F.3d at 355 (“Appellants retain the ability to present their views in
support of the Act by seeking leave to file amicus briefs.”); North Carolina, 2014 WL
494911, at *5 (denying intervention but recognizing that the proposed intervenors offered
a “useful perspective and expertise” and stating that they were free to seek leave to file an
amicus brief to raise a “unique contention” or additional argument). As the Stuart court
explained:
While a would-be intervenor may prefer party status to that of
friend-of-court, the fact remains that amici often make useful
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contributions to litigation. The availability of such alternative
avenues of expression reinforces our disinclination to drive
district
courts
into
multi-cornered
lawsuits
by
indiscriminately granting would-be intervenors party status
and all the privileges pertaining thereto.
Id.
In the parallel litigation brought by Plaintiff against Harvard, a group of current
Harvard students and potential applicants, who were similarly represented by the
Lawyers’ Committee for Civil Rights Under Law, moved to intervene in defense of
Harvard’s admissions policy. In a detailed opinion, the court denied the motion to
intervene as of right, denied permissive intervention, and noted that the potential
intervenors could participate in the case as amici curiae. (Ex. 1, Harvard lawsuit, Dkt. 52
at 1-23) Likewise, in the Fisher case, the court determined that potential intervenors
could participate in the case as amicus curiae. (Ex. 4, Fisher lawsuit, Order, Dkt. 83 at 2)
In short, allowing the movants to participate as amicus curiae would permit them
to provide the Court with their views—which the University welcomes—but without the
complexity of allowing them the rights of parties.
CONCLUSION
For all of these reasons, Defendants respectfully request that the Court deny the
motion to intervene and instead grant the movants’ leave to participate in the case as
amici curiae.

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Respectfully submitted this 22nd 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]

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 22, 2015, I electronically filed the foregoing
DEFENDANTS’ RESPONSE TO MOTION TO INTERVENE with the Clerk of Court
using the CM/ECF system, which will send notification of such filing to all registered
CME/ECF users.

This, the 22nd day of July, 2015.
/s/ Stephanie A. Brennan
Stephanie A. Brennan
Special Deputy Attorney General
NC Department of Justice
Post Office Box 629
Raleigh, NC 27602-0629
T: [phone]
F: [phone]
Attorney for Defendants

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