misapplying the requirements for intervention as of right under rule twenty four the purpose of rule twenty four is to ensure that parties like the student who are the real beneficiaries of harvard's right to consider race in admissions aren't excluded from participating in the litigation that will determine their fate you need to have your clients need to have a protectable interest harvard potential problem for you and waited to hear these hoes the question is suppose you were allowed to intervene and then the next day the other two parties announced they were settling the case and pla dismissing the case in their honor if you would how would you oppose the on the other party says yes we're happy to dismiss a what interest of yours would you say to the poor requires that the litigation go forward even if the other parties are happy to go home you're out of this was precisely the fact pattern at issue in most bachar where the applicants for intervention came to the courts on a proposed consent decree and the proposed it must not do so in the court can require them to do so and unless you can say that it's hard to me to see how you have the protectable interest i understand you have an interest your honor the issue here that would allow the court to say even though you are willing to drop consideration of race and go away you can do so your honor that the reason the court would say that is to preserve ut point in time i think the discretion it might have later to reconsider its use of race in admissions that would bind not only harvard but the student's interests going forward the protect  were were applying to defend the government's discretion to enact that policy or another policy at different points in time so the court has a harvard's ability to represent the students the district court erred in this case by holding the bar for intervention too high and by creating a burden for the students does not exist in the law district court essentially acknowledged that harvard would be unwilling to raise an important defense is of their right to consider race in admissions when it acknowledged that the students would have to rely on the plaintiff to develop evidence as to harvard's other admissions criteria legacy early action and the f a t and acknowledging that harvard would not develop  evidence and would not admit to the detrimental effects that those policies have on its diversity goal it essentially found the facts necessary to grant to that have its policy is at issue here the district court essentially admitted that amica status is insufficient if you have no further questions decision on appeal should be affirmed by this court it's important to recognize that the students retained substantial rice to participate in the briefing and trial well that is more than sufficient participation for them to show their perspectives and legal arguments in defense of har race in its admissions decisions the i think the important point to remember is that not only were they granted rights to submit briefing but they also were here in the rights to participate in oral argument to submit declarations to assist harvard in the preparation of its case and if the trial comes about the district court reserve the right to reconsider the extent to which they may actually participate in trial this court has made clear that the application of will twenty four eighty two is  series of judgment calls a balancing of factors that arise and how the use in credit factual settings and the district court's decision here properly applied the twenty forty two standard to the facts before it i want to government action because of wide variety of folks that might be impacted by government action but apart from that this court has always indicated that whether or not you actually have to have article three standing to justify that intention when he stands before you and we think the district court's decision entirely applied the presumption that because harvard shares the same desired outcome of the litigation as the students  standard of review is minimal representation but i think that that case is quite clear that the minimal standard only applies when the parties do not share the same desired outcome as they do here at there's no other questions i'm happy to rest protected from the fishing restrictions that would have been the subject of a consent decree and that's what distinguishes the students in this case from the fishing interests the students here have a profound interest the same profound interest that harvard had in being able to maintaining harvard's ability to consider race as part of a holistic admissions process in order to achieve campus diversity that will maximize their educational experience and prepare them for peter ship but and harvard has absolutely no intention whatsoever of settling this case we will defend our legal ability to do exactly what we're doing to the maximum of the law the president of harvard only two months ago reconfirmed that the issue at stake here is central and fundamental to everything that harvard stands for but if we decided in fact to change and decide for the first time in at least fifty years not to consider race in our holistic admissions process unlike the interveners and mosbacher in the interveners and daggett that were referenced the students interest however a profound is not protected well there's no question that harvard could decide however unlikely it is that it's no longer going to consider race and it's going to use the same admissions process that you know cal tech uses which is it's going to try and find the sixteen hundred most brilliant engineers no matter what they what their cultural background is no matter what other factors they bring and we think that's an important distinction in this case the the students are as i understand it are arguing that they should be allowed to intervene as full parties and the students have not appealed the denial of permissive intervention and they have not suggested even to judge produced about twelve hundred documents to the plaintiffs during the while this appeal has been pending we have been directed to produce to them a database of student applications for a two year period which we will shortly do and the district judge has said that it will she will hold a status conference promptly after this court decides in order to determine  what what further discovery should proceed while she awaits the supreme court's decision in fisher two and i think the problem with the students argument of inadequacy in addition to their burden of overcoming a presumption  establishing an abuse of discretion is that they want to they want to justify harvard's consideration of race on the basis of arguments that harvard is not going to pursue that and specifically they have an argument that harvard should consider race in order to offset what they claim an alignment with the plaintiffs in this case are supposedly discriminatory effects of other admissions considerations other factors that harvard takes into account that is that does not establish inadequacy for two interlocking reasons first under the supreme court's cases whether how and why to pursue diversity is a matter of academic judgment that only harvard can render and in this court as opposed to as participants on campus the students reasons why harvard should be considering race are irrelevant secondly to the extent that the student's legal premise is simply that the narrow tailoring prong of the strict scrutiny inquiry should consider every feature of harvard's administrations process and what effects they may have again we agree we think as the students do that the  of harvard's holistic use of race conscious admissions should take as a given that harvard employees of araya be a factor as in considerations that it considers essential to further its educational goals unless the chaotic let me return to your question the answer is that in the short term there is nothing the students could do if the plaintiff and harvard reached a settlement agreement but they could continue in the litigation until  conclusion of it and secure from harvard the right to consider race in admissions if it ever were to change its mind so the prior cases on on on this in this circuit and in other circuits where the  interviewer was defending the discretionary right of an entity to choose the policy that it wanted are directly on point for that reason because if it hovered for some reason decided today to throw up its hands the find other cases in which the same phenomenon that i'm pointing out to you he who would be present in the intervening party in fact would have been able to do nothing had the other party's resolved the case and yet you found intervention there before entering a settlement agreement your honor yes that would be that would be the proper time to allow intervention to protect their concrete interests thank you ok thank you both