Case: 19-2005 Document: 00117622842 Page: 1 Date Filed: 07/31/2020 Entry ID: 6356957
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`IN THE UNITED STATES COURT OF APPEALS
`FOR THE FIRST CIRCUIT
`___________________________
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`No. 19-2005
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`STUDENTS FOR FAIR ADMISSIONS, INC.,
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`Plaintiff-Appellant
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`v.
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`PRESIDENT AND FELLOWS OF HARVARD COLLEGE,
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`Defendant-Appellee
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`___________________________
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`ON APPEAL FROM THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MASSACHUSETTS
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`RENEWED MOTION OF THE UNITED STATES AS AMICUS CURIAE
`TO PARTICIPATE IN ORAL ARGUMENT
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`Pursuant to Federal Rule of Appellate Procedure 29(a)(8), the United States
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`respectfully renews its request to participate in oral argument of this appeal, which
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`this Court has now scheduled for September 16, 2020. The United States asks that
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`the Court grant it ten minutes of argument time and add that time to the total time
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`given to the parties. In support of this renewed motion, the United States provides
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`the following:
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`IN THE UNITED STATES COURT OF APPEALS
`FOR THE FIRST CIRCUIT
`___________________________
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`No. 19-2005
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`STUDENTS FOR FAIR ADMISSIONS, INC.,
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`Plaintiff-Appellant
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`v.
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`PRESIDENT AND FELLOWS OF HARVARD COLLEGE,
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`Defendant-Appellee
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`___________________________
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`ON APPEAL FROM THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MASSACHUSETTS
`___________________________
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`RENEWED MOTION OF THE UNITED STATES AS AMICUS CURIAE
`TO PARTICIPATE IN ORAL ARGUMENT
`___________________________
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`Pursuant to Federal Rule of Appellate Procedure 29(a)(8), the United States
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`respectfully renews its request to participate in oral argument of this appeal, which
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`this Court has now scheduled for September 16, 2020. The United States asks that
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`the Court grant it ten minutes of argument time and add that time to the total time
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`given to the parties. In support of this renewed motion, the United States provides
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`the following:
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`Case: 19-2005 Document: 00117622842 Page: 2 Date Filed: 07/31/2020 Entry ID: 6356957
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`1. On February 25, 2020, the United States filed an amicus brief in support
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`of plaintiff-appellant Students for Fair Admissions, Inc. (SFFA) and urging
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`reversal, pursuant to Federal Rule of Appellate Procedure 29(a).
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`2. On June 23, 2020, the United States filed a motion for leave to participate
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`in oral argument in this case.
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`3. Later on June 23, 2020, the parties jointly responded to multiple amici’s
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`motions for oral argument time, stating that they do not object to amici
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`participation in oral argument as long as “Harvard and SFFA[] have equal and
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`adequate time for oral argument” and “Harvard and any amici supporting its
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`position * * * have the same amount of total time to argue as SFFA and its
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`amicus.” See Dkt. ID No. 6347775, at 1.
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`4. On July 9, 2020, this Court denied all amici motions to participate in oral
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`argument (including the United States’ motion) without prejudice to refiling once
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`the case was calendared for oral argument.
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`5. On July 28, 2020, this Court issued a Calendaring Notice scheduling the
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`case for oral argument on September 16, 2020. The United States now renews its
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`request to participate in the argument.
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`6. This appeal presents the important question whether Harvard College
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`carried its burden at trial of proving that its overt consideration of race in its
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`admissions process is narrowly tailored to advance a compelling interest, as
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`Case: 19-2005 Document: 00117622842 Page: 3 Date Filed: 07/31/2020 Entry ID: 6356957
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`required by Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d et seq., and
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`Supreme Court precedent. Title VI commands that “[n]o person in the United
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`States shall * * * be subjected to discrimination under any program or activity
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`receiving Federal financial assistance” based on her “race, color, or national
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`origin.” 42 U.S.C. 2000d. By accepting millions of dollars in federal funding,
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`Harvard has subjected itself to Title VI’s restrictions on the use of race.
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`7. As discussed in the United States’ amicus brief, because Harvard
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`intentionally uses race in its admissions process, it bears the burden of proving that
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`its process satisfies strict scrutiny by showing that its use of race is narrowly
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`tailored to a compelling interest. The amicus brief argues that Harvard did not
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`carry that burden. Accordingly, the United States urges that this Court reverse the
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`judgment of the district court below, which rejected the challenge to Harvard’s
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`admissions process.
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`8. The United States has a strong interest in the resolution of this appeal and
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`believes that its participation in oral argument would be particularly helpful to this
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`Court. The United States has a substantial interest in protecting its citizens from
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`racial discrimination. It enforces multiple statutes that prohibit race discrimination
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`in public accommodations, housing, voting, education, and employment, among
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`other contexts. The United States also has a fundamental interest in ensuring “that
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`public dollars, drawn from the tax contributions of all citizens, do not serve to
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`Case: 19-2005 Document: 00117622842 Page: 4 Date Filed: 07/31/2020 Entry ID: 6356957
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`finance the evil of private prejudice.” City of Richmond v. J.A. Croson Co., 488
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`U.S. 469, 492 (1989) (plurality opinion). The United States distributes billions of
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`dollars in federal financial assistance every year—of which Harvard is one
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`beneficiary—and it has a significant interest in ensuring that recipients of such
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`assistance comply with Title VI’s anti-discrimination mandate.
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`9. The United States filed amicus briefs and participated in oral argument in
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`the Supreme Court cases that are central to the disposition of this appeal—e.g.,
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`Fisher v. University of Tex. at Austin, 136 S. Ct. 2198 (2016); Fisher v. University
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`of Tex. at Austin, 570 U.S. 297 (2013); Parents Involved in Cmty. Schs. v. Seattle
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`Sch. Dist. No. 1, 551 U.S. 701 (2007); Grutter v. Bollinger, 539 U.S. 306 (2003);
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`and Gratz v. Bollinger, 539 U.S. 244 (2003).
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`10. The Assistant Attorney General for the Civil Rights Division of the
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`Department of Justice, Eric S. Dreiband, would present oral argument on behalf of
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`the United States.
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`11. The United States respectfully requests that this Court grant it ten
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`minutes of argument time and add that time to the total time the Court grants the
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`parties. Counsel for the United States has conferred with counsel for both parties.
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`Both parties stated that their positions on this renewed motion are the same as
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`expressed in their previous joint response to the original motions to participate in
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`Case: 19-2005 Document: 00117622842 Page: 5 Date Filed: 07/31/2020 Entry ID: 6356957
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`oral argument. See Dkt. ID No. 6347775 (filed June 23, 2020). The United States
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`is the only amicus supporting SFFA that has requested oral argument time to date.
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`CONCLUSION
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`For the foregoing reasons, the United States respectfully renews its request
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`for leave to participate in oral argument in this appeal and asks that the Court allot
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`the United States ten minutes of argument time.
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`Respectfully submitted,
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`ERIC S. DREIBAND
` Assistant Attorney General
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`s/ Matthew J. Donnelly
`THOMAS E. CHANDLER
`MATTHEW J. DONNELLY
` Attorneys
` U.S. Department of Justice
` Civil Rights Division
` Appellate Section
` Benjamin Franklin Station
` P.O. Box 14403
` Washington, D.C. 20044-4403
` (202) 616-2788
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`Case: 19-2005 Document: 00117622842 Page: 6 Date Filed: 07/31/2020 Entry ID: 6356957
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`CERTIFICATE OF COMPLIANCE
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`I certify that the attached RENEWED MOTION OF THE UNITED
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`STATES AS AMICUS CURIAE TO PARTICIPATE IN ORAL ARGUMENT:
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`(1) complies with Federal Rule of Appellate Procedure 27(d)(2)(A) because
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`it contains 848 words; and
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`(2) complies with the typeface requirements of Federal Rule of Appellate
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`Procedure 27(d)(1)(E) because it meets the typeface requirements of Federal Rule
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`of Appellate Procedure 32(a)(5) and the type style requirements of Federal Rule of
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`Appellate Procedure 32(a)(6) having been prepared in a proportionally spaced
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`typeface using Microsoft Word 2019, in 14-point Times New Roman font.
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`s/ Matthew J. Donnelly
`MATTHEW J. DONNELLY
` Attorney
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`Dated: July 31, 2020
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`Case: 19-2005 Document: 00117622842 Page: 7 Date Filed: 07/31/2020 Entry ID: 6356957
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`CERTIFICATE OF SERVICE
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`I certify that on July 31, 2020, I electronically filed the foregoing
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`RENEWED MOTION OF THE UNITED STATES AS AMICUS CURIAE TO
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`PARTICIPATE IN ORAL ARGUMENT with the Clerk of the Court for the
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`United States Court of Appeals for the First Circuit by using the appellate CM/ECF
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`system. I certify that all participants in this case are registered CM/ECF users and
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`that service will be accomplished by the appellate CM/ECF system.
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`s/ Matthew J. Donnelly
`MATTHEW J. DONNELLY
` Attorney
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