          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



                                      - 3 -
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;



                                        - 4 -
(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



                                   - 5 -
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)).


                                          - 6 -
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



                                     - 7 -
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.


                                     - 8 -
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




                                      - 9 -
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



                                            - 10 -
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,



                                    - 11 -
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


                                         - 12 -
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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