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

Filing 55

REPLY, 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, to Response to 46 MOTION to Stay Proceedings (Oral Argument Requested) 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. (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,
REPLY IN SUPPORT OF
DEFENDANTS’ MOTION TO STAY
PROCEEDINGS

v.

UNIVERSITY OF NORTH
CAROLINA et al.,

ORAL ARGUMENT REQUESTED

Defendants.
Throughout its Opposition to Defendants’ Motion to Stay Proceedings, Plaintiff
Students for Fair Admissions contends that there is no need for the parties to wait before
undertaking expansive, costly, and intrusive discovery largely because the Supreme
Court’s decision in “Fisher II is unlikely to materially impact even part of this case.”
(Mem. in Opposition (“Opp.”) at 2.) This position strains credulity.
The Supreme Court takes cases not just to resolve disputes between two parties
but to decide important legal questions of national significance and provide essential
guidance to the lower courts. What the Court says (and does not say) in Fisher II about
the strict scrutiny and narrow tailoring mandates applicable to race-conscious admissions
practices; how the Court analyzes the Fifth Circuit’s application of those standards; and
any other guidance the Court chooses to provide will have a controlling and dispositive
effect on this litigation. Even Plaintiff’s President has recognized the import of Fisher II

in recent public comments about the direct impact that he hopes Fisher II will have on the
use of race in higher education admissions—and on this very litigation.
Additionally, the University does not request an open-ended, indefinite stay.
Waiting less than a year to receive controlling direction from the Supreme Court that
could prevent costly re-litigation is an appropriate use of this Court’s well-established
discretion.
On balance, the equities weigh strongly in favor of a stay.
I.

PLAINTIFF’S POSITION THAT THAT FISHER II WILL HAVE NO
EFFECT ON THIS LITIGATION IS UNTENABLE
Plaintiff does not dispute that its Complaint is replete with references to the

Supreme Court’s higher education admissions decisions in recent years. (See, e.g., Defs’
Mem. of Law in Supp. of Mot. to Stay Proceedings (“Memo”) at 3 (citing Compl. ¶¶ 2, 4,
7, 147, 181, 185-186, 188-196).) Those precedents provide the entire legal underpinning
of this litigation, establishing the burden each party must satisfy, what evidence they
must present, and what this Court must ultimately decide.
Fisher I provides apt illustration. There, the Supreme Court held that the Fifth
Circuit erred in affording deference to UT-Austin’s assessment that its race-conscious
admissions policy was narrowly tailored. Fisher v. Univ. of Tex. at Austin, 133 S. Ct.
2411, 2420-21 (2013). UT-Austin, the Supreme Court stressed, was required to “make a
showing”—with concrete evidence and not merely “‘assurances of good intention’”—
that “its plan is narrowly tailored” to achieve the permitted benefits of student-body

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diversity, where race or ethnicity are but one of a range of “‘qualifications and
characteristics’” considered in the admissions process. Id. at 2421 (citations omitted).
On remand, the Fifth Circuit took all of its cues from Fisher I. The Fifth Circuit
emphasized that the Supreme Court in Fisher I, despite remanding for a more rigorous
narrow tailoring analysis, reaffirmed its prior conclusion in Grutter v. Bollinger, 539 U.S.
306 (2003), that universities have a compelling interest in achieving the educational
benefits of diversity. Fisher v. Univ. of Tex. at Austin, 758 F.3d 633, 642 (5th Cir. 2014),
cert. granted, 1355 S. Ct. 2888 (2015). The Fifth Circuit therefore focused its attention
on the narrow tailoring inquiry, ultimately concluding that UT-Austin had carried its
burden under the standards articulated in Fisher I and previously in Grutter and Gratz v.
Bollinger, 123 S. Ct. 2411 (2003).
Fisher II reflects the next evolution of this developing legal landscape. The
Supreme Court granted review to determine whether the Fifth Circuit’s analysis “can be
sustained under this Court’s decisions interpreting the Equal Protection Clause of the
Fourteenth Amendment, including Fisher [I].” (Memo at 5 (quoting the question
presented in Fisher II).)
There is an air of unreality to Plaintiff’s position that Fisher II is relevant only at
the fringes and that the proper approach here is to barrel ahead with blinders on as to
what comes forth from the Supreme Court next spring or early summer. This position
also defies the economic realities of litigation of this magnitude, in which the parties face
very substantial discovery and other legal costs in circumstances where the legal ground
may shift in important ways. Do-overs make little sense for anyone here, including the
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Court. The proper course is to stay the matter and await further guidance from Fisher II
on how a university must satisfy a test of strict scrutiny in proving that its use of raceconscious admissions practices is narrowly tailored to achieve a compelling interest.
Even Plaintiff’s own President has recognized the strong connection between
Fisher and this litigation. In public comments, he has explained that he sees Fisher and
both the University of North Carolina at Chapel Hill and Harvard lawsuits as parts of a
broader integrated litigation strategy:
When we filed [Fisher], we didn’t ask the Court to [end the use of race and
ethnicity in higher education], because we felt that it would take a couple of
cases to develop our theories and find the right set of facts to do it. But if
we win again at the Supreme Court, we think the hurdle that they
articulated the first time in 2013, that hurdle will be raised, it will be more
fully fleshed out, and at least for the next two or three years while the
Harvard lawsuit is being pursued and the UNC lawsuit is being pursued, it
will be harder for universities to use race and ethnicity [.]
Houston Chinese Alliance, Edward Blum Speaks About The Legal Battle Against
Harvard University, YouTube (Apr. 26, 2015),
https://www.youtube.com/watch?v=VVVuhD0KelQ; see also Tamar Lewin & Richard
Perez-Pena, Colleges Brace for Uncertainty as Court Reviews Race in Admissions, N.Y.
TIMES, July 1, 2015, at A14 (“‘Like most Americans, I hope this case presents the court
the opportunity to end racial classifications in higher education, in total,’ said Edward
Blum, the president of the Project on Fair Representation, which provided counsel to Ms.
Fisher. . . . ‘But if the court just continues to narrow the use of race, we would see that as
a great victory, too.’” (citation omitted)).

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In the end, there is little question that in light of the Supreme Court’s decision to
grant review in Fisher II, the current operative legal framework may soon be altered. At
the very least, significant additional direction is certain to be forthcoming from the
Supreme Court. The Court would be on rock solid ground exercising its discretion to
stay this case pending that decision.
II.

PLAINTIFF OVERSTATES BOTH THE LEGAL SIGNIFICANCE OF
POTENTIAL HARM TO ITS MEMBERS AS WELL AS THE POTENTIAL
HARM ITSELF
Plaintiff also misfires in suggesting that any potential prejudice to its members is

the determinative factor that should weigh in the Court's discretionary judgment. To the
contrary, and as Plaintiff’s own cases demonstrate, prejudice to the non-moving party is
just one factor that a court must consider. See Landis v. N. Am. Co., 299 U.S. 248, 25455 (1936) (in exercising its authority to grant a discretionary stay, a court “must weigh
competing interests and maintain an even balance”). Moreover, Plaintiff overstates the
potential harm from a stay.
A.

Plaintiff Misstates The Legal Principles That Guide Whether A Court
Should Grant A Stay.

Plaintiff incorrectly asserts that the factors the Court must consider “are not coequal factors” and that prejudice to the non-moving party is the most important factor.
(Opp. at 4.) In doing so, Plaintiff relies on the Supreme Court’s statement that the
suppliant for a stay “‘must make out a clear case of hardship or inequity in being required
to go forward, if there is even a fair possibility that the stay for which he prays will work
damage to someone else.’” Id. (citing Landis, 299 U.S. at 255). That proposition,

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however, establishes only that the moving party carries the burden of demonstrating that
competing harms weigh in favor of a stay. See Williford v. Armstrong World Indus., Inc.,
715 F.2d 124, 127 (4th Cir. 1983) (quoting Landis, 299 U.S. at 254-55). Moreover,
Plaintiff ignores that the Supreme Court also clarified that “[c]onsiderations such as
these, however, are counsels of moderation rather than limitations upon power.” Landis,
299 U.S. at 255.
Plaintiff also argues that “a stay ‘is rarely appropriate’ when the parallel litigation
‘will not dispose of the entire case.’” (Opp. at 3.) But the case that Plaintiff cites for this
proposition, Chavous v. D.C. Fin. Responsibility & Mgmt. Assistance Auth., 201 F.R.D. 1
(D.D.C. 2001), is factually inapposite. In Chavous, the district court stated that “a stay of
discovery pending determination of a motion to dismiss is rarely appropriate when the
pending motion will not dispose of the entire case.” Id. at 3 (internal quotation marks
omitted) (emphasis added).
In advancing this position, Plaintiff fails to mention—much less distinguish—the
Fourth Circuit’s decision to grant a stay while awaiting the Supreme Court’s guidance.
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.”);
see also Landis, 299 U.S. at 256 (“True, a decision in the cause then pending in [another
jurisdiction] may not settle every question of fact and law in suits by other companies,
but in all likelihood it will settle many and simplify them all.”); Stoddard v. Wyeth, No.
4:08-cv-00173-H (E.D.N.C., Jan. 11, 2011) (granting motion to stay proceedings to
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promote judicial efficiency and noting that the Supreme Court’s pending decision would
likely have a direct impact on the litigation).
B.

Plaintiff Overstates The Potential Harm A Stay Would Inflict.

In addition to overstating the weight that the Court must afford to any harm to the
non-moving party, Plaintiff overstates the purported harm that might result from a stay.
Instead, Plaintiff provides only general allegations of harm to its members’ equalprotection rights and asserts that “SFFA members who will be applying for transfer
admission in the 2016-2017 cycle” will be “especially” harmed. (Opp. at 6.) Contrary to
what Plaintiffs assert, 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 controlling direction to the Court and parties here. Granting a stay will allow the
parties to litigate this case—and the Court to decide these issues—once and in the most
efficient manner under fresh and controlling guidance from the Supreme Court. These
considerations outweigh any allegations of generalized harm.
The risk of any purported harm to potential transfer applicants is also exaggerated
because Plaintiff overestimates how quickly this litigation will proceed—even without
any extensions to the existing schedule. Indeed, opening dispositive motions are not due
until March 31, 2016. Even if the Court were to rule very quickly on the motions and
issue judgment in Plaintiff’s favor, the University would already be well into its regular
admissions cycle for 2016-2017. If this case were to proceed to trial or if either party
were to appeal—which is likely—any purported harm to Plaintiff’s members becomes
even more remote.
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III.

A STAY PROMOTES JUDICIAL EFFICIENCY
Plaintiff contends that the University has provided only “vague generalities” (Id. at

13) about how the Supreme Court’s decision in Fisher II will influence fact and expert
discovery. Not so. (See, e.g., Memo at 8-11.) And Plaintiff cannot explain why judicial
efficiency would not be served by a stay other than to assert that it will not be. (See Opp.
at 12.) But perhaps the most telling illustration of the untenable nature of Plaintiff’s
position is the assertion that because the Local Rules expressly contemplate submissions
of supplemental authority, no stay is needed. (Id. at 14-15.)
CONCLUSION
For these reasons as well as those discussed in Defendants’ Memorandum of Law,
the Court should grant a stay of this litigation.
The University also respectfully requests the opportunity to present oral argument
on this Motion.

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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 August 7, 2015, I electronically filed the foregoing
REPLY 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 7th day of August, 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