A Desire To Say “Me Too” Is Not A Basis For Intervention As Of Right

Harvard University proudly proclaims that it considers race in its admissions decisions in order to increase “student body diversity.” Students for Fair Admissions, Inc. (“SFFA”) has a different view of Harvard’s admissions policy and filed a complaint challenging that policy as racially and ethnically discriminatory in violation of both Title VI of the Civil Rights Act of 1964 and the Equal Protection Clause of the Fourteenth Amendment. There is, however, one aspect of the litigation on which SFFA and Harvard see eye-to-eye – that a group of current and prospective Harvard students benefitted by Harvard’s current admissions policy (the “Students”) should not be permitted to intervene on behalf of Harvard’s position. The dispute over the Students’ effort to intervene culminated in Wednesday’s decision by the First Circuit in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, No. 15-1823.

The Students filed a motion under Fed.R.Civ.P. 24(a)(2) and (b) seeking to intervene both as a matter of right and by permission of the court. The District Court denied their motion, but did grant the Students leave to participate in the case as amici curiae. Wanting full party status for themselves, the Students appealed from the District Court’s denial of their motion seeking to intervene as a matter of right.

The First Circuit focused on the District Court’s finding that the Students failed to show that their interests were not adequately represented by an existing party, i.e., Harvard. Although characterizing the Student’s burden on this issue as “minimal,” the First Circuit nevertheless found the Students’ position to be wanting, noting that: (1) the Students and Harvard have the identical goal of defending Harvard’s right to consider race in its admissions decisions; (2) Harvard has plenty of resources with which to litigate; (3) the Students had offered no criticism of Harvard’s choice of counsel (a former U.S. Solicitor General); and (4) Harvard exhibited plenty of incentive to defend the case by going so far as to characterize it as a threat to its “most fundamental values.” To further drive home the point, the Court pointed out that the Students’ stated desire to highlight the effects of Harvard’s legacy policy (admissions preference given to relatives of alumni), which allegedly decreases diversity, would actually hinder, rather than help, Harvard’s defense of the case.

The takeaway: when the best you can do is agree with the arguments of an existing party fully capable of advancing them, you should reconsider filing that intervention motion.