An intervenor in the DOJ’s suit against Yale!

Students for Fair Admissions, Inc. (SFFA) has filed a motion to intervene in the Department of Justice’s suit against Yale. The DOJ’s suit alleges discrimination by Yale against Whites and Asians/Asian Americans in undergraduate admissions. You can read SFFA’s motion and proposed complaint here.

If SFFA is permitted to intervene — and I can think of no reason why it won’t be — this will mean the case can go forward even if Joe Biden is elected president and his administration decides to drop the case against Yale (as it surely would). Hence the exclamation point in the title of this post.

SFFA is the organization that sued Harvard for discrimination. Harvard won in the district court. The case has been argued in the Second Circuit and is awaiting decision. However, one of the three judges who heard the case, Juan Torruella, died yesterday.

SFFA is represented in the Yale case by the same law firm that represents it in the Harvard litigation — Consovoy McCarthy. One couldn’t ask for more experienced lawyers in a case like this.

The case against Harvard, filed years ago, seemed tailored to the thinking of Justice Kennedy, who was then the swing vote on the Supreme Court. There is no longer any need to cater to Kennedy. It is probably for this reason, at least in part, that the proposed complaint accompanying SFFA’s motion has a somewhat different emphasis than its complaint against Harvard, and follows the DOJ’s lead in important respects.

Assuming no “court packing,” the current Supreme Court will be more receptive to the action against Yale than the Court would have been in Justice Kennedy’s times. In addition, the Second Circuit Court of Appeals, which will have jurisdiction over any appeal from the district court, will very likely be more receptive to this case than the First Circuit seems to be in the case against Harvard. And at the district court level, the DOJ drew a considerably less liberal judge than SFFA got in the Harvard case.

The six claims against Yale by SFFA are: (1) intentional discrimination, (2) racial balancing, (3) using race as more than a mere “plus factor,” (4) using race for more than filling the “last few” seats in an entering class, (5) failing to use race-neutral alternatives, and (6) unlawfully using race as a factor in admissions. SFFA seeks to forbid Yale from using race as a factor in all future admissions decisions.

In terms of “standing” to bring the case, SFFA says:

At least one of SFFA’s members was denied admission to Yale’s 2020 entering class on account of his race. This applicant is ready and able to apply to transfer to Yale when it stops discriminating against applicants on the basis of race and ethnicity.

That applicant is Asian-American. However, the complaint alleges discrimination against White applicants, as well.

It would be nice if SFFA finds a White member to whom Yale has also denied admissions on account of race. (Yale is probably discriminating against White applicants as I write this post.) However, I don’t believe that allegations of discrimination against a White member of SFFA are essential in order for SFFA effectively to challenge Yale’s admissions policies.

Explaining SFFA’s decision to intervene in this case, Edward Blum, the organization’s president, said:

It is important that this lawsuit continues to be vigorously litigated through the courts during the coming months and years. Using race and ethnicity in college admissions decisions is unfair, unconstitutional and is fraying the social fabric that holds our nation together.

By moving to intervene, SFFA pretty much ensures that the lawsuit will, in fact, be vigorously litigated, regardless of the outcome of the presidential election.

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