Students for Fair Admissions, Inc. v. President & Fellows of Harvard College , 807 F.3d 472 ( 2015 )

United States Court of Appeals
For the First Circuit
No. 15-1823
STUDENTS FOR FAIR ADMISSIONS, INC.,
Plaintiff, Appellee,
v.
PRESIDENT AND FELLOWS OF HARVARD COLLEGE (HARVARD CORPORATION),
Defendant, Appellee;
SARAH COLE; FADHAL MOORE; ARJINI KUMARI NAWAL; ITZEL VASQUEZ-
RODRIGUEZ; KEYANNA WIGGLESWORTH; M.B.; K.C.; Y.D.; G.E.; A.G.;
I.G.; R.H.; J.L.; R.S.,
Movants, Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Allison D. Burroughs, U.S. District Judge]
Before
Howard, Chief Judge,
Lynch and Kayatta, Circuit Judges.
Taylor Owings, with whom Lawrence E. Culleen, Nancy L.
Perkins, Steven L. Mayer, Arnold & Porter, LLP, Jon M. Greenbaum,
Lawyers' Committee for Civil Rights Under Law, Iván Espinoza-
Madrigal, and Lawyers' Committee for Civil Rights and Economic
Justice, were on brief, for movants-appellants.
Seth P. Waxman, with whom Felicia H. Ellsworth, Eric F.
Fletcher, Paul R.Q. Wolfson, Daniel Winik, and Wilmer Cutler
Pickering Hale and Dorr LLP, were on brief, for defendant-appellee.
Patrick Strawbridge, with whom Consovoy McCarthy Park
PLLC, Paul M. Sanford, and Burns & Levinson LLP, were on brief,
for plaintiff-appellee.
December 9, 2015
KAYATTA, Circuit Judge. This appeal arises out of a
lawsuit brought by an organization that calls itself Students For
Fair Admissions, Inc. ("SFFA") challenging Harvard College's
consideration of race in its undergraduate admissions decisions.
An opposing group of current and prospective Harvard students
("Students") who claim to be benefited by the school's current
practice sought to intervene, over the objection of both parties,
in order to advocate "vigorously" for the defeat of SFFA's claims.
The district court denied Students' motion to intervene, instead
granting Students leave to file amicus briefs. Students for Fair
Admissions, Inc. v. President & Fellows of Harvard Coll., 308
F.R.D. 39, 52–53 (D. Mass. 2015). Students now appeal, arguing
that the district court either committed an error of law or abused
its discretion in denying their motion to intervene. For the
following reasons, we affirm the district court's ruling.
I. Background
The underlying lawsuit in which Students seek to
intervene commenced on November 17, 2014, when SFFA filed a
complaint with the district court alleging that Harvard's
undergraduate admissions policy is racially and ethnically
discriminatory, in violation of Title VI of the Civil Rights Act
of 1964 and the Equal Protection Clause of the Fourteenth
Amendment. Harvard admits, indeed proclaims, that it does consider
an applicant's race, among many other factors, in deciding whether
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to admit the applicant. Harvard says that it considers race in
order to increase "student body diversity, including racial
diversity." It denies that this consideration is unlawful.
During the early stages of discovery, Students filed a
motion under Federal Rule of Civil Procedure 24(a)(2) and (b),
seeking to intervene in this lawsuit either by right or by
permission of the court. The district court denied the motion to
intervene, holding that although Students' motion was "timely,"
Students failed to satisfy the remaining requirements of Rule 24(a)
and (b). Students do not appeal the denial of their motion for
permissive intervention under Rule 24(b). Rather, they focus this
appeal on the district court's denial of their motion to intervene
by right under Rule 24(a)(2).
II. Analysis
Federal Rule of Civil Procedure 24(a)(2) states:
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.
Successful intervention by right under this rule
requires intervenors to demonstrate that (1) their motion is
timely; (2) they have an interest related to the property or
transaction that forms the foundation of the ongoing action;
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(3) the disposition of the action threatens to impair or impede
their ability to protect their interest; and (4) no existing party
adequately represents their interest. Ungar v. Arafat, 634 F.3d
46, 50 (1st Cir. 2011). Failure to satisfy any one of the four
requirements defeats intervention by right. Id. at 51.
Applying these requirements calls for discretion in
making "a series of judgment calls--a balancing of factors that
arise in highly idiosyncratic factual settings." Id. While "the
district court's discretion [in the context of intervention by
right] is somewhat more circumscribed than in the context of
intervention generally," Negrón-Almeda v. Santiago, 528 F.3d 15,
22 (1st Cir. 2008), we will only reverse "[i]f the district court
either fails to follow the general recipe provided in Rule 24(a)(2)
or reaches a plainly incorrect decision." Ungar, 634 F.3d at 51.
Rather than reviewing blow-by-blow each challenge to the
district court's opinion, we train our analysis on the district
court's finding that Students have failed to show that no "existing
part[y] adequately represent[s] [Students'] interest." Fed. R.
Civ. P. 24(a)(2). In conducting this analysis, we begin with a
recognition that Students' burden of establishing inadequate
representation "should be treated as minimal" and can be satisfied
by showing "that representation of [the] interest 'may be'
inadequate." Trbovich v. United Mine Workers of Am., 404 U.S.
528, 538 n.10 (1972) (emphasis added). On the other hand, we
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require putative intervenors to produce "something more than
speculation as to the purported inadequacy" of representation.
Moosehead Sanitary Dist. v. S.G. Phillips Corp., 610 F.2d 49, 54
(1st Cir. 1979).
In trying to sustain even this minimal burden, Students
buckle at the outset. The interests they claim (increasing their
chances of gaining admission and/or being educated "among a
critical mass of students who can relate to their racial
identities") lead them to adopt four-square Harvard's goals of
"defend[ing] Harvard's right to consider race and [] defeat[ing]
SFFA's request for declaratory judgment."1 Given such a congruence
in goals, this court presumes adequate representation. B.
Fernández & Hnos., Inc. v. Kellogg USA, Inc., 440 F.3d 541, 546
(1st Cir. 2006); Daggett v. Comm'n on Governmental Ethics &
Election Practices, 172 F.3d 104, 111 (1st Cir. 1999); Moosehead,
610 F.2d at 54. Adding heft to that presumption in this case are
the facts that Harvard has the resources necessary to litigate the
case, that it has retained counsel of whom Students offer no
criticism, and that it has publicly characterized the lawsuit
1 Because we affirm the district court's denial of Students' motion
to intervene based on the fact that Harvard will provide adequate
representation, we need not decide whether Students' interests in
this case are "significantly protectable." Pub. Serv. Co. of N.H.
v. Patch, 136 F.3d 197, 205 (1st Cir. 1998) (quoting Donaldson v.
United States, 400 U.S. 517, 531 (1971)).
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through its highest officials as a threat to its "most fundamental
values."
With that factually reinforced presumption in mind, we
next consider Students' specific arguments for why we should
nevertheless find as a matter of law that Students raise
"sufficient doubt about the adequacy" of Harvard's representation
in pursuing the shared goal of preserving Harvard's ability to
consider an applicant's race in its admissions decisions. B.
Fernández, 440 F.3d at 547 (quoting Trbovich, 404 U.S. at 538).
We undertake that consideration "in light of the issues at stake
in the particular litigation", Pub. Serv. Co. of N.H. v. Patch,
136 F.3d 197, 208 (1st Cir. 1998), as they reveal themselves based
on a "commonsense view of the overall litigation." Id. at 204
(citing United States v. Hooker Chems. & Plastics Corp., 749 F.2d
968, 983 (2d Cir. 1984)).
Students point to what they claim is "Harvard's
unwillingness to recognize the need for race-conscious admissions
policies to balance the adverse effect of other admissions criteria
and practices . . . like the legacy policy," referring to Harvard's
practice of giving some admissions preference to certain relatives
of alumni. Students claim that Harvard will not discuss the
effects of those policies, but that they will.
To establish that a party's representation of the
intervenor's interest will be per se inadequate because the party
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might not make a particular argument, we ask whether pursuit of
the shared goal obviously calls for the argument to be made. See
Daggett, 172 F.3d at 112; see also Maine v. Dir., U.S. Fish &
Wildlife Serv., 262 F.3d 13, 19–20 (1st Cir. 2001). It is by no
means obvious to us that the goal of defeating SFFA's claims calls
for chronicling and highlighting the manner in which Harvard's
other voluntary admissions practices supposedly decrease
diversity. To the contrary, such an undertaking would seem to cut
against Harvard's essential position that race-conscious
admissions practices are necessary to increase diversity. See
Fisher v. Univ. of Tex. at Austin, 133 S. Ct. 2411, 2420 (2013)
(stating that a university's consideration of an applicant's race
is permissible, provided that it is necessary to achieve the
educational benefits of diversity). This may well be why the
district court reasoned that SFFA was likely to try to show
precisely what Students say they would seek to show about the
effect of legacy preferences.2 Students for Fair Admissions, 308
F.R.D. at 51. In this respect, Students' intervention in the
action would seem more likely to hinder rather than to help the
pursuit of the very goal they share with Harvard.
In a slightly different variation on this theme,
Students argue that they will be more single-mindedly zealous than
2 SFFA's complaint suggests that because Harvard could increase
diversity by voluntarily eliminating legacy preferences and
policies, race-conscious admissions practices are not necessary.
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Harvard because Harvard's balancing of competing priorities may
pose a "settlement risk: if Harvard prioritizes practices, like
the legacy policy, that encourage donors and continued financial
support of the institution and it perceives them to be at risk in
this litigation, then it might modify or abandon its race-conscious
policies in order to settle." Exactly how any relief ordered by
the court on SFFA's complaint might require Harvard to terminate
practices like the legacy policy, Students do not explain. Their
argument also assumes that intervention would somehow enable
Students to limit Harvard's discretion in deciding whether to
settle or fight. Yet Students point to no basis for such an
assumption. To the contrary, Students concede that they lack any
legal basis for requiring Harvard to maintain its current
practices. Therefore, if Students' theory that putting legacy
practices under scrutiny during the litigation might cause Harvard
to settle were correct, then once again Students would seem to be
seeking intervention to do something that would work against the
goal they profess to share.
Of course, we doubt that Students and their able counsel
would really pursue such a counter-productive approach if they
believe what they claim about Harvard's relative priorities.
Nonetheless, the fact that these arguments are the best that they
can offer in trying to say why Harvard will not adequately defend
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the lawsuit suggests quite strongly that Students' participation
as a party is not needed to fill in a hole in Harvard's defense.
We recognize that our holding is on the surface contrary
to a holding reached sixteen years ago by the Sixth Circuit in
Grutter v. Bollinger, 188 F.3d 394 (6th Cir. 1999). But see
Hopwood v. Texas, 21 F.3d 603, 605–06 (5th Cir. 1994) (per curiam).
Grutter, however, seemed to rely on the premise that "evidence of
past discrimination by the University itself or of the disparate
impact of some current admissions criteria . . . may be important
and relevant factors in determining the legality of a race-
conscious admissions policy." Grutter, 188 F.3d at 401. Prior
and subsequent Supreme Court decisions, however, cast doubt on the
relevance of such factors in sustaining a race-conscious
admissions policy. See Fisher, 133 S. Ct. at 2421 (stating that
the "only interest this Court has approved in" the context of
higher education is "the benefits of a student body diversity that
'encompasses a . . . broa[d] array of qualifications and
characteristics of which racial or ethnic origin is but a single
though important element'") (quoting Regents of Univ. of Cal. v.
Bakke, 438 U.S. 265, 315 (1978)). In any event, even putting to
one side any question concerning Grutter's suggestion that
evidence of past discrimination might justify the indefinite
continuation of race-conscious admissions to a student population
that rolls over every four years, we still prefer our analysis to
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that offered by the split Grutter circuit court given that,
intervention or not, Harvard could decide to settle without
Students even being at the table.
Nor does our own prior decision in Cotter v. Mass. Ass'n
of Minority Law Enforcement Officers, 219 F.3d 31 (1st Cir. 2000),
require reversal in this case. Cotter was, by its own terms,
virtually sui generis, eschewing a "simple formula" as "difficult,
if not impossible, to contrive," id. at 34, and concerning itself
"with matters of degree and a particular fact pattern," id. at 37.
See Patch, 204 F.3d at 204 ("Because small differences in fact
patterns can significantly affect the outcome, the very nature of
Rule 24(a)(2) inquiry limits the utility of comparisons between
and among published opinions."). The Cotter plaintiffs' claims
against the defendant employer actually put at risk the existing
jobs of the proposed intervenors and those whom they represented.
Id. at 34–35. Unlike Harvard, the defendant in Cotter neither
opposed intervention nor professed to be in a position to
adequately represent intervenors' interests. Id. at 33. Most
importantly, the intervenors in Cotter proposed to argue that the
defendant was "in violation of law," id. at 36, and that the
practices challenged in the lawsuit were defensible as a remedy
for past unlawful discrimination, id. at 35, which is precisely
the type of legal argument Students acknowledge their advocacy
will lack because it has no toehold in this case. All in all,
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Cotter left ample room for the district court's ruling in this
materially different litigation.
We have also considered Students' argument that their
inability to keep Harvard from settling does not per se defeat
their motion to intervene by right, citing Conservation Law
Foundation of New England, Inc. v. Franklin, 989 F.2d 54, 59 (1st
Cir. 1993). In that case, though, we merely said that the fact
that a party was allowed to intervene did not mean that it would
later necessarily have standing to oppose entry of a consent
decree. Id. Here, we simply hold that, when a party cites a fear
of settlement as a reason to intervene, it is not an abuse of
discretion to find that reason insufficient if the intervention
will not reduce the likelihood of settlement, much less if
intervention might increase the likelihood.
III. Conclusion
For the reasons set forth above, we can find no reason
to criticize the district court's thoughtful and carefully
considered disposition of Students' motion, and we are confident
that Students will find that amicus briefs will provide them with
a fair opportunity to voice their views concerning the issues posed
by the litigation.3 Therefore, we affirm.
3 In granting Students leave to participate as amici curiae, the
district court permitted them to do the following: 1) "submit a
brief or memorandum of law not to exceed 30 pages, exclusive of
exhibits, on any dispositive motion in this case"; 2) "participate
in oral argument on any dispositive motion"; and 3) "submit
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personal declarations or affidavits in support of their memorandum
of law, which may be accorded evidentiary weight if otherwise
proper." Students for Fair Admissions, 308 F.R.D. at 53.
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