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

Filing 52

RESPONSE in Opposition re 46 MOTION to Stay Proceedings filed by STUDENTS FOR FAIR ADMISSIONS, INC.. Replies due by 8/13/2015. (RULEY, DANIEL)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF NORTH CAROLINA
CASE NO. 1:14-CV-954
STUDENTS FOR FAIR ADMISSIONS, INC.
Plaintiff,
v.
THE UNIVERSITY OF NORTH
CAROLINA, et al.,
Defendants.

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PLAINTIFF’S MEMORANDUM IN OPPOSITION
TO MOTION TO STAY
Plaintiff Students for Fair Admissions, Inc. (“SFFA”) respectfully requests that the
Court deny the Motion for Stay filed by Defendants (collectively, “UNC-Chapel Hill”).
I.

Introduction
UNC-Chapel Hill’s request for a stay pending a decision in Fisher v. University of

Texas at Austin, No. 14-981 (“Fisher II”), is baseless. UNC-Chapel Hill grossly
exaggerates the overlap between Fisher II and this case. But the Court need not resolve
that dispute because a stay is not warranted in any event. Where a stay would harm the
non-moving party, as here, it must be denied absent a clear case of hardship. UNCChapel Hill cannot meet that standard. As UNC-Chapel Hill itself concedes, this case is
about “the current operation of [UNC-Chapel Hill]’s admissions program.” Mem. in
Supp. of Defs.’ Mot. to Stay (“Mem.”) at 2. Nothing the Supreme Court says in Fisher II
will change the facts regarding the current operation of UNC Chapel-Hill’s admissions
1

program or its use of race as a factor therein. UNC Chapel-Hill may wish to change those
facts, but that is no reason to delay discovery. Indeed, courts routinely reject requests to
stay litigation where a decision by the Supreme Court would not moot the entire
litigation. On top of that, Fisher II is unlikely to materially impact even part of this case.
UNC-Chapel Hill’s motion should be denied.
II.

Legal Standard
Although “the power to stay proceedings is incidental to the power inherent in

every court to control the disposition of the causes on its docket,” Landis v. N. Am. Co.,
299 U.S. 248, 254 (1936), this inherent power is constrained by the federal courts’ “strict
duty to exercise the jurisdiction that is conferred upon them by Congress.” Quackenbush
v. Allstate Ins. Co., 517 U.S. 706, 716 (1996); see also Meade v. Parsley, 2011 WL
1464852, at *1 (S.D. W.Va. Apr. 15, 2011) (“A district court has broad discretion to stay
an action as part of its inherent authority to manage its docket. Nevertheless, the court’s
discretion has limits.”). Thus, courts within this circuit have recognized that “a stay of a
civil case should be undertaken only in extraordinary circumstances.” Harris v. Rainey,
2014 WL 1292803, at *2 (W.D. Va. Mar. 31, 2014).
More particularly, the existence of parallel litigation is an insufficient justification
for a stay. “Only in rare circumstances … will a litigant in one cause be compelled to
stand aside” while a parallel proceeds. Landis, 299 U.S. at 255. This is true even if the
parallel case will “settle[] the rule of law that will define the rights of both.” Id.; see, e.g.,
United States v. Clements, 655 F.3d 1028, 1029 (9th Cir. 2011); id. at 1030 (explaining
2

that “the Supreme Court will definitively decide th[e] question” at issue) (O’Scannlain,
J., dissenting). Naturally, then, a stay “is rarely appropriate” when the parallel litigation
“will not dispose of the entire case.” Chavous v. D.C. Fin. Responsibility & Mgmt.
Assistance Auth., 201 F.R.D. 1, 3 (D.D.C. 2001) (citations and quotations omitted); see
also Consol. Edison Co. of New York v. United States, 30 F. Supp. 2d 385, 389 (S.D.N.Y.
1998) (“A stay is as much a refusal to exercise federal jurisdiction as a dismissal. When a
district court decides to dismiss or stay, it presumably concludes that the parallel
litigation will be an adequate vehicle for the complete resolution of the issues between
the parties.”) (citation omitted)). It is thus unsurprising that federal courts routinely will
reject any request to stay litigation pending a decision of the Supreme Court where that
decision “would have the potential to moot only a portion of” the litigation. United States
ex rel. Lindsey v. Trend Cmty. Mental Health Services, 88 F. Supp. 2d 475, 477
(W.D.N.C. 1999).1

1

See, e.g., Walker v. Medtronic, Inc., 2008 WL 346384, at *2 (S.D. W.Va. Feb. 6,
2008) (denying stay pending decision by the Supreme Court and explaining that,
“although Riegel holds the potential to limit or otherwise affect plaintiff’s legal theories,
it is unlikely that its outcome will entirely alter the scope of discovery to be conducted in
this litigation”); United States v. Town of Oyster Bay, 66 F. Supp. 3d 285, 292-93
(E.D.N.Y. 2014) (“find[ing] that a stay of the proceedings would not serve the interests of
fairness or efficiency and is not warranted” because a decision by the Supreme Court
could at most moot only a portion of the case); Jones v. Travelers Cas. Ins. Co. of Am.,
2013 WL 4511648, at *2 (N.D. Cal. Aug. 22, 2013) (“Travelers argues that the Supreme
Court’s decision in Mount Holly directly impacts this case, so a stay is warranted. The
Court disagrees. Mount Holly speaks only to Plaintiffs’ disparate impact claim under the
FHA. … Even if the Supreme Court ultimately determines that disparate impact is not a
cognizable claim under the FHA, Plaintiffs still have three other theories to pursue in this
Court. The Court thus finds that a stay pending the outcome of Mount Holly does not aid
in streamlining the case or helping the Court manage its docket.”); see also Meade v.
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“The proponent of a stay” therefore “bears the burden of establishing its need.”
Clinton v. Jones, 520 U.S. 681, 708 (1997). Under Landis, three factors guide whether to
grant a stay: “(1) the interests of judicial economy; (2) hardship and equity to the moving
party if the action is not stayed; and (3) potential prejudice to the non-moving party.”
White v. Ally Fin. Inc., 969 F. Supp. 2d 451, 462 (S.D. W.Va. 2013). But “the Landis
factors,” id. at 462 n.8, are not co-equal factors. The proponent “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,
299 U.S. at 255 (emphasis added); see also Williford v. Armstrong World Indus., Inc.,
715 F.2d 124, 127 (4th Cir. 1983) (“The party seeking a stay must justify it by clear and
convincing circumstances outweighing potential harm to the party against whom it is
operative.”); Aventis CropScience, N.V. v. Pioneer Hi-Bred Interational, Inc., No.
1:00CV00463, 2001 WL 604185, at *5 (M.D.N.C. Apr. 23, 2001) (same). Further, a stay
is especially difficult to secure in cases where the plaintiff has “alleged … continuing
harm and sought … injunctive or declaratory relief.” Lockyer v. Mirant Corp., 398 F.3d
1098, 1110 (9th Cir. 2005). Such cases are distinguishable from those where only
damages are at issue. Id.
III.

A Stay Is Unjustified Even Accepting UNC-Chapel Hill’s Conception of the
Overlap Between This Case and Fisher II.

Parsley, 2011 WL 1464852, at *2 (S.D. W.Va. Apr. 15, 2011); Laumann v. Nat’l Hockey
League, 2013 WL 837640, at *2 (S.D.N.Y. Mar. 6, 2013); In re Tremont Sec. Law, State
Law, & Ins. Litig., 2013 WL 4730263, at *4 (S.D.N.Y. Sept. 3, 2013).
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UNC-Chapel Hill argues that a stay is appropriate because “[t]he 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.” Mem. at 1. To state UNC-Chapel Hill’s argument is to
refute it. Nothing about UT-Austin’s admissions program is on trial here. Although UNCChapel Hill exaggerates any relationship between the two cases, see infra at 15-18, the
Court need not resolve the dispute over Fisher II’s potential impact on the legal issues
raised in this case to deny UNC-Chapel Hill’s stay motion. As explained below, the
motion is meritless even assuming that Fisher II will “clarify further the law governing
how public universities may consider race in the admissions process.” Mem. at 2.
First, there is far more than a “fair chance” that granting UNC-Chapel Hill’s
motion will harm SFFA—it is a certainty. More than eight months ago, SFFA brought
this suit on behalf of its members, challenging UNC-Chapel Hill’s use of racial
classifications in undergraduate admissions decisions. Delaying adjudication of
Plaintiff’s claims for approximately a year—or more, see United States ex rel. Lindsey,
88 F. Supp. 2d at 477 (“Contrary to [Defendant]’s assurances, there is no guarantee that
the Supreme Court will dispose of this case during its next term”)—is harm enough to
defeat UNC-Chapel Hill’s request for a stay, see id. (finding that “impair[ed] access to
the courts” outweighs “the potential to moot only a portion of this action”); Doe v. Bayer
Corp., 367 F. Supp. 2d 904, 916 (M.D.N.C. 2005) (“A stay of discovery duplicates costs
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because counsel must reacquaint themselves with the case once the stay is lifted. Matters
of importance may be mislaid or avenues unexplored. … While time may heal some
disputes, in others it merely permits more opportunity for festering.”).
Weighing even more heavily against a stay is the fact that SFFA members have
suffered injuries of constitutional magnitude. See Grutter v. Bollinger, 539 U.S. 306, 323
(2003) (“[W]henever the government treats any person unequally because of his or her
race, that person has suffered an injury that falls squarely within the language and spirit
of the Constitution’s guarantee of equal protection.” (quotation omitted)). Those
members include applicants UNC-Chapel Hill has rejected, high school students who
plan to apply to UNC-Chapel Hill in the coming months and years, and the parents of
both rejected and future applicants. See generally Complaint. These members will have
their equal-protection rights further harmed if resolution of this case is delayed by a year
or more. This is especially true for those SFFA members who will be applying for
transfer admission in the 2016-2017 cycle—the first admissions cycle in which a
judgment in SFFA’s favor likely would take effect. For those applicants, a one-year delay
means losing forever the “opportunity to compete for admission on an equal basis.” Gratz
v. Bollinger, 539 U.S. 244, 262 (2003).
UNC-Chapel Hill gives short shrift to the harm to SFFA members. UNC-Chapel
Hill acts as if the only possible harm here relates to the typical burdens and costs
attendant to litigation. It is, however, undeniable that “when governmental decisions
‘touch upon an individual’s race or ethnic background, he is entitled to a judicial
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determination that the burden [they are] asked to bear on that basis is precisely tailored to
serve a compelling governmental interest.’” Grutter, 539 U.S. at 323 (quoting Regents of
Univ. of Cal. v. Bakke, 438 U.S. 265, 299 (1978)). Yet nowhere does UNC-Chapel Hill
acknowledge the constitutional injury suffered by SFFA members who have applied to
UNC-Chapel Hill or awaiting SFFA members who will apply to UNC-Chapel Hill in the
future. Worse still, such delay would mean that UNC-Chapel Hill would inflict an equalprotection injury upon tens of thousands of more applicants in the interim, a fact that
weighs further against the requested stay. See Landis, 299 U.S. at 255 (“damage to some
one else”) (emphasis added); see also Klaver Const. Co. v. Kansas Dep’t of Transp.,
2001 WL 1000679, at *3 (D. Kan. Aug. 23, 2001) (“[T]he public has an interest in
prompt resolution of constitutional claims.”).
In short, this case is about UNC-Chapel Hill’s discriminatory policies and the
countless applicants these policies harm. SFFA members are entitled to a judicial
determination as to whether the process to which they have been (and soon will be)
subjected “is fair and constitutional in every phase of implementation.” Grutter, 539 U.S.
at 394 (Kennedy, J., dissenting). That some SFFA members would be denied that right as
a result of a stay is more than sufficient reason to deny UNC-Chapel Hill’s motion. See
Hines v. D’Artois, 531 F.2d 726, 737 (5th Cir. 1976) (“We must always have great
respect for a trial court’s judicial discretion in the control of its docket, but we cannot
abdicate our roles in monitoring that discretion to prevent the ossification of rights which
attends inordinate delay.... If plaintiffs were not to be permitted forthwith to tell their
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story to the court, the tale might be stale indeed by the time it reached judicial ears.”).
After all, Landis makes clear that a stay should not be for an indefinite period of time.
See Landis, 299 U.S. at 255 (“[A] stay of indefinite duration in the absence of a pressing
need” constitutes an abuse of discretion.); United States ex rel. Lindsey, 88 F. Supp. 2d at
477 (same). For these applicants, the stay pending the Supreme Court’s resolution of
Fisher II would not only be indefinite, see id. (stay pending decision by the Supreme
Court is a “stay of indefinite duration”); it would operate as a dismissal.
But even those applicants who will “only” have vindication of their constitutional
rights delayed will suffer harm sufficient to defeat UNC-Chapel Hill’s motion. Stays are
disfavored in civil cases, see Harris, 2014 WL 1292803, at *2, and particularly so in
civil-rights cases, see Costantino v. City of Atl. City, 2015 WL 668161, at *3-8 (D.N.J.
Feb. 17, 2015), as such delay materially impairs pursuit of claims Congress and the
public consider “profoundly important,” see Kelly v. City of San Jose, 114 F.R.D. 653,
660 (N.D. Cal. 1987); see also Klaver Const. Co., 2001 WL 1000679, at *3 (“In
evaluating the competing interests, the Court concludes that plaintiff's interest in pursuing
its constitutional claims outweighs defendants’ interest in staying the case.”). “While the
stay is in effect, through no fault of the parties, relevant evidence could be lost or
destroyed, memories could fade, and pertinent witnesses could move out of the
jurisdiction.” I.K. ex rel. E.K. v. Sylvan Union Sch. Dist., 681 F. Supp. 2d 1179, 1193
(E.D. Cal. 2010) (citation omitted); see also Suntrust Mortgage, Inc. v. Busby, 2009 WL
4801347, at *8 (W.D.N.C. Dec. 7, 2009) (“A stay that is unrestricted in scope will
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certainly prejudice Plaintiff by risking the loss of documents [and] the fading of
witnesses’ memories[.]”); New York v. Hill, 528 U.S. 110, 117 (2000) (“Delay can lead to
a less accurate outcome as witnesses become unavailable and memories fade.”). In sum,
there is a certainty, not merely a “fair chance,” that a stay will damage SFFA.2
Second, UNC-Chapel Hill cannot make out a clear case of hardship or inequity it
will suffer in the absence of a stay. UNC-Chapel Hill argues that “it is difficult to
conceive of an outcome in Fisher II that will not 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.” Mem. 9-10. As an
initial matter, the Court should be skeptical of this argument. If the Fifth Circuit decision
is affirmed, the law will be the same as it is now; but if the Fifth Circuit decision is
reversed, UNC-Chapel Hill will almost certainly argue that Fisher II has no effect on this
case because of differences between the University of Texas’s admissions program and
the details of UNC-Chapel Hill’s.3

2

UNC-Chapel Hill relies entirely on unpublished and/or out-of-circuit cases for
the proposition that a stay may be appropriate pending a Supreme Court decision in a
related case. Aside from being of minimal precedential value, every one of these cases is
easily distinguishable as each involved an agreed-to stay, see, e.g., Stoddard v. Wyeth,
No. 4:08-cv-00173-H (E.D.N.C. Jan 11, 2011), or a situation in which a decision by the
Supreme Court could (or would) control the outcome of the litigation, see, e.g., Norville
v. Anne Arundel Cnty. Bd. of Educ., 1999 WL 1267696 (D. Md. Nov. 23, 1999), or both,
Carter v. United States, 2007 WL 2439500 (D. Vt. Aug. 23, 2007).
3

If UNC-Chapel Hill believes that a loss for UT-Austin before the Supreme Court
necessarily would result in defeat here for UNC-Chapel Hill, then a stay of these
proceedings might well be appropriate. But UNC-Chapel Hill should state whether a loss
for UT-Austin would bind it here. It should not be permitted to argue both that Fisher II
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Moreover, whatever strategy UNC-Chapel Hill might choose to adopt (if different
than its current strategy of delay) or whatever evidence it might choose to highlight in its
defense has nothing to do with what is discoverable here. The facts are the facts; “the
current operation of [UNC-Chapel Hill]’s admissions program,” Mem. at 2, is what it is.
Wishing away those facts will not change the scope of discoverable information here.
Of course, UNC-Chapel Hill knows this—which is why it does not even argue that
Fisher II will make the discovery SFFA currently seeks inappropriate or duplicative. See,
e.g., Wittman v. Aetna Health, Inc., 2014 WL 4772666, at *2 (D. Me. Sept. 24, 2014).
UNC-Chapel Hill mainly argues that the decision in Fisher II might render discovery as
to its “current [admissions] policies and practices … incomplete,” opening the door to
additional discovery. Mem. at 9. But this falls far short of the showing necessary to
justify a stay. Indeed, even the “possibility of duplicative discovery does not establish a
clear case of hardship in the face of Plaintiff’s objections to the stay.” Hunt Const. Grp.,
Inc. v. Brennan Beer Gorman/Architects, LLP, 2009 WL 2424529, at *1 (D. Vt. Aug. 5,
2009).
The only other argument UNC-Chapel Hill offers as to the possibility of hardship
is that Fisher II might make discovery relating to its current admissions policies
irrelevant if Fisher II requires a “modifi[cation]” to those policies. See Mem. at 9. Here
too, even aside from UNC-Chapel Hill’s misunderstanding of Fisher II, the argument is

has everything to do with this case, see Mem. at 1 (“the central issue in this case”), and
nothing at all to do with this case.
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disingenuous. SFFA has filed suit challenging UNC-Chapel Hill’s existing admissions
policies and practices. Mem. at 2, 9. It is therefore true that this case would be over if
UNC-Chapel Hill is unable to defend its existing policies in the wake of Fisher II. But
that would be because SFFA would be entitled to judgment as a matter of law (along with
the accompanying declaratory and injunctive relief)—not because SFFA’s claim (or
discovery relating thereto) would become “largely irrelevant.” Id. at 9; see City of
Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289 (1982) (“It is well settled that a
defendant’s voluntary cessation of a challenged practice does not deprive a federal court
of its power to determine the legality of the practice.”). The idea that UNC-Chapel Hill is
entitled to a stay so it can wait and see if the Supreme Court’s decision in Fisher II makes
any defense of its admissions system impossible is absurd.
At bottom, UNC-Chapel Hill’s assertions of harm rest on its speculation that
Fisher II will “clarify further the law governing how public universities may consider
race in the admissions process [and] affect the standards that govern this litigation.”
Mem. at 2. But a possible clarification in the law does not create any meaningful burden
on defendants, and cannot overcome the harm to SFFA. See Klaver Const. Co., 2001 WL
1000679, at *3 (“The mere possibility that the Supreme Court may clarify the legal
standards which apply to these separate claims does not justify the potential prejudice of
a delay to plaintiff. Compared to the potential prejudice to plaintiff, the burden on
defendants is small.”) “‘[B]eing required to defend a suit, without more, does not
constitute a ‘clear case of hardship or inequity’ within the meaning of Landis.’” Sunbeam
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Products, Inc. v. Hamilton Beach Brands, Inc., 2010 WL 1946262, at *4 (E.D. Va. May
10, 2010) (quoting Lockyer v. Mirant Corp., 398 F.3d 1098, 1112 (9th Cir. 2005)).
Third, a stay will not advance judicial economy. Just as a possible clarification in
the law could create only a minimal burden on UNC-Chapel Hill, there is almost nothing
to gain from a stay in terms of judicial economy. See Klaver Const. Co., 2001 WL
1000679, at *3 (“The convenience to the Court of having the benefit of a Supreme Court
decision does not outweigh the potential prejudice to plaintiff.”).
As noted above, whatever impact UNC-Chapel Hill (incorrectly) believes Fisher
II will have on the legal standard, it will have no meaningful effect on fact discovery. The
point of discovery is to build a comprehensive record. See United States v. 23.76 Acres of
Land, 32 F.R.D. 593, 596 (D. Md. 1963) (“It is the rare law suit in which there are not at
least two versions of a single transaction or occurrence. The purpose of discovery is to
permit each party to learn of the other party’s version.”). Fisher II will not alter the facts
of this case. It will not alter UNC-Chapel Hill’s reasons for having chosen to consider
race in admissions decisions. It will not alter how UNC-Chapel Hill has used and
currently uses race in its admissions process. And it will not alter UNC-Chapel Hill’s
reasons for having determined that there are no workable race-neutral alternatives to
using race.
Even if Fisher II refines the applicable legal standard in some way that impacts the
kind of facts that might be admissible at trial, see Mem. at 8-11, it still would not impact
the scope of fact discovery. The Federal Rules of Civil Procedure contemplate liberal
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discovery. See Mylan Labs., Inc. v. Akzo, N.V., 2 F.3d 56, 64 (4th Cir. 1993) (“Discovery
under the Federal Rules of Civil Procedure is, of course, broad in scope and freely
permitted.”); Ralston Purina Co. v. McFarland, 550 F.2d 967, 973 (4th Cir. 1977); see
also Fed. R. Civ. P. 26(b)(1) (“Relevant information need not be admissible at the trial if
the discovery appears reasonably calculated to lead to the discovery of admissible
evidence.”). UNC-Chapel Hill cannot credibly contend that Fisher II will so
fundamentally alter the legal standard as to make otherwise irrelevant facts relevant or
vice versa. Indeed, UNC-Chapel Hill offers no argument as to how Fisher II will impact
any specific discovery it plans to take of SFFA or any of SFFA’s discovery requests.
Instead, it relies on vague generalities about how Fisher II’s clarification of the legal
standard will affect its strategy and the evidence it may marshal in the defense of its
program. Mem. at 2, 8-10. Such generalities fall far short. See, e.g., Honeywell Int’l, Inc.,
20 F. Supp. 3d at 132 (rejecting argument “broadly assert[ing]” a “substantial overlap in
legal and factual issues between this case and the related cases” as “speculation …
unaccompanied by reasoning, analysis, or supporting authority”). SFFA is not concerned
with proceeding at the same time as Fisher II nor does it anticipate seeking any additional
discovery based on its outcome. And if UNC-Chapel Hill has evidence that it “may wish
to present” in defense of its program, it would be well advised to timely produce it in
response to SFFA’s discovery requests to which such evidence is surely responsive. At
base, UNC-Chapel Hill “can give the court no assurances or even convincing arguments
that a stay will achieve the ends of judicial economy which would be its justification.”
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Dow Chem. Co. v. Composite Container Corp., 1984 WL 1245, at *1 (D. Mass. Apr. 10,
1984).
Fisher II likewise will not affect expert discovery. UNC-Chapel Hill offers
nothing specific on this point—not even the vague generalities it makes concerning fact
discovery. If UNC-Chapel Hill is suggesting that the same issues that purportedly support
staying fact discovery support staying expert discovery, the argument is equally
meritless. An expert’s job is to provide “opinions on scientific matters, technical matters,
or matters involving other specialized knowledge [that] will assist the trier of fact to
understand the evidence or to determine a fact in issue.” United States v. Offill, 666 F.3d
168, 175 (4th Cir. 2011). Expert testimony that consists of legal conclusions therefore
will not “assist the jury in its determination.” United States v. Barile, 286 F.3d 749, 760
(4th Cir. 2002). Here, the parties’ experts will testify about how UNC-Chapel Hill’s
admission system works, to what extent (and in what way) race is a factor in admissions,
and the ability (or inability) of race-neutral alternatives to achieve diversity in the student
body. Experts will not be testifying as to the relevant legal standard, however it may be
shaped by Fisher II (if at all). Any possible clarification of the law thus will have no
meaningful effect on expert discovery.
Finally, even if Fisher II were to clarify the law in some respect during or after
briefing on summary judgment, see Mem. at 11-12, this is no reason to stay the case.
Parties to litigation routinely submit their views on clarifications in the law during the
course of motions practice. Indeed, the Local Rules of this Court expressly contemplate
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such submissions. See M.D.N.C. Rule 7.3(i) (“Suggestion of Subsequently Decided
Authority. As an addendum to a brief, response brief, or reply brief—or after oral
argument but before decision—a suggestion of subsequent pertinent and significant
authorities may be filed at any time prior to the Court’s ruling and shall contain only the
citation to the case relied upon, if published, or a copy of the opinion if the case is
unpublished.”). Perhaps more importantly, granting a stay out of concern for deadlines
over eight months away would be wildly premature. If the Court is concerned about the
timing of briefing on dispositive motions, the appropriate solution would be to order a
modest extension of the discovery calendar that would result in briefing on dispositive
motions (and the close of discovery) being delayed until after Fisher II is likely to be
decided. This extension is likely necessary anyway, given that UNC-Chapel Hill has yet
to produce a single document in this case despite having received requests for production
more than two months ago and that it forecasts discovery disputes “that will consume
considerable time and expense by the parties (and almost certainly the Court) to address
and properly manage.” Mem. at 10. For all of these reasons, UNC-Chapel Hill’s stay
motion should be denied.
IV.

UNC-Chapel Hill Misapprehends the Legal Question at Issue in Fisher II and
The Possible Extent of Its Impact on This Litigation.
The above argument firmly establishes that the Court should deny the stay request

even accepting UNC-Chapel Hill’s argument regarding the overlap between Fisher II and
this case. But UNC-Chapel Hill’s argument is, in truth, built on sand. UNC-Chapel Hill’s
motion is premised on the proposition that a stay is justified until Fisher II “clarif[ies]
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further the law governing how public universities may consider race in the admissions
process [and] affect[s] the standards that govern this litigation.” Mem. at 2. Even a
cursory review of the Supreme Court’s decision in Fisher I and the certiorari pleadings in
Fisher II flatly disproves this assertion.
Fisher I clarified the applicable law. In that decision, the Supreme Court held that
the Fifth Circuit “did not apply the correct standard of strict scrutiny” and set forth the
proper legal framework. Fisher v. Univ. of Texas at Austin, 133 S. Ct. 2411, 2415 (2013).
In particular, the Court walked through the strict-scrutiny requirements established in the
“decisions that directly address the question of considering racial minority status as a
positive or favorable factor in a university’s admissions process” and explained that
“additional guidance may be found in the Court’s broader equal protection jurisprudence
which applies in this context.” Id. at 2417-18. The Court held that the Fifth Circuit’s
deferential review of UT-Austin’s reasons for reinstating racial classifications was in
conflict with this “controlling standard” and remanded the matter “so that the admissions
process [could] be considered and judged under a correct analysis.” Id. at 2421.
On remand, the Fifth Circuit purported to apply “the ordered exacting scrutiny”
and again upheld UT-Austin’s use of race in its admissions system. Fisher v. Univ. of
Texas at Austin, 758 F.3d 633, 637 (5th Cir. 2014). Ms. Fisher, in turn, sought certiorari
on the ground that the Fifth Circuit erred in concluding that UT-Austin’s use of racial
preferences could withstand “the demanding scrutiny that Fisher I mandates.” Petition for
Certiorari, Fisher v. Univ. of Texas at Austin (U.S. Feb. 10, 2015) (No. 14-981) (“Fisher
16

II Pet.”) at 2. Her position is that the “Court’s decision in Fisher I could not have been
more clear. On remand, the Fifth Circuit was to review the record under the traditional
and demanding constraints of strict scrutiny.” Fisher II Pet. at 14. Ms. Fisher thus argued
that the Court should grant certiorari a second time not because of doubt as to the
applicable legal standard, but because the Fifth Circuit “contravened” that clear standard
“in multiple ways.” Id. at 15. Indeed, UNC-Chapel Hill concedes that Ms. Fisher asked
the Supreme Court to review UT-Austin’s use of race under the strict-scrutiny standard
the Court clarified in Fisher I and the Supreme Court granted review on that precise
question. Mem. at 5.
In reality, then, UNC-Chapel Hill’s stay request is not premised on the need for
guidance as to the governing legal framework. Fisher I settled that issue, and it is not up
for review in Fisher II. UNC-Chapel Hill seeks a stay on the theory that the application
of strict scrutiny in Fisher II to UT-Austin’s use of race in admissions will somehow be
“central” to this case. Mem. at 1. Of course, UNC-Chapel Hill never explains how this is
so. And this is because it is demonstrably incorrect.
The most that UNC-Chapel Hill can muster is to suggest that the Supreme Court
may provide further guidance on the various elements of the strict-scrutiny analysis. See
Mem. at 8. But UNC-Chapel Hill identifies these elements at such a level of abstraction
as to completely undermine its argument. For example, UNC-Chapel-Hill suggests that
the Supreme Court might provide direction on “[t]he legal and evidentiary requirements
of the narrow tailoring test announced in Grutter and reinforced in Fisher.” Id. But if this
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level of generality were to suffice, then any case in which strict scrutiny were the
governing standard would be subject to a stay pending the Supreme Court’s decision in
Fisher II. That, of course, is an absurd proposition.
V.

Conclusion.
For the foregoing reasons, Plaintiff SFFA respectfully requests that the Court deny

the Motion for Stay.
Respectfully submitted,
STUDENTS FOR FAIR ADMISSIONS, INC.

By its attorneys,

Date: July 27, 2015

/s/ Thomas R. McCarthy
Thomas R. McCarthy
William S. Consovoy
J. Michael Connolly
CONSOVOY MCCARTHY PARK PLLC
3033 Wilson Boulevard
Suite 700
Arlington, Virginia 22201
[phone]
[e-mail]
[e-mail]
[e-mail]
(admitted pro hac vice)
/s/ Alan M. Ruley
Alan M. Ruley
N.C. State Bar No. 16407
Bell, Davis & Pitt, P.A.
P.O. Box 21029
Winston Salem, NC 27120-1029
[phone]
[e-mail]
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CERTIFICATE OF SERVICE
I hereby certify that on July 27, 2015, I filed a true and correct copy of the
foregoing with the Clerk of Court using the CM/ECF system.

/s/ Alan M. Ruley
Alan M. Ruley
N.C. State Bar No. 16407
Bell, Davis & Pitt, P.A.
P.O. Box 21029
Winston Salem, NC 27120-1029
[phone]
[e-mail]

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