A Secret Joke Clouds Harvard's Affirmative Action CaseBreaking News
tags: Harvard, affirmative action
Jeannie Suk Gersen is a contributing writer to The New Yorker and a professor at Harvard Law School.
Last fall, some mysterious new activity appeared on the Supreme Court’s docket. It was one week after oral arguments in Students for Fair Admissions v. Harvard, which—along with a case involving the University of North Carolina—will, later this term, likely end race-conscious affirmative action in university admissions. The Court had taken the unusual step, on the eve of the arguments, of asking the district court to provide the entire trial record, including transcripts—meaning that, up to that point, the record the Justices had was incomplete. The district court then transmitted the record, including a “password protected and encrypted” thumb drive containing materials sealed from the public. The Supreme Court’s late request suggested that the Justices wanted to see for themselves what really happened at the trial, which had exposed some of the inner workings of Harvard’s admissions process. I wondered what the district court didn’t want the public to know.
The trial, which I’d attended, had been held in October of 2018, before Judge Allison Burroughs, who was appointed by President Obama, after decades as a federal prosecutor and then as a litigator at a law firm in Boston. The trial lasted three weeks and spotlighted dozens of witnesses and hundreds of documents, as part of an effort to determine whether Harvard intentionally discriminated against Asian American applicants. On the whole, Harvard gave Asian American applicants higher academic and extracurricular ratings but lower “personal ratings” than they gave white applicants. The plaintiff, Students for Fair Admissions, alleged that Harvard used the personal ratings to depress Asian American admissions and effect an unspoken quota. Judge Burroughs rejected this argument. She found that “the majority of the disparity” in the personal ratings was “more likely caused by race-affected inputs to the admissions process” (such as high-school recommendation letters) or “underlying differences in the attributes” of Asian American and white applicants (meaning that the scores accurately reflected the groups’ qualities). Her bottom line was that Asian Americans’ low personal ratings were “not the result of intentional discrimination” by Harvard.
During the trial, the judge often had S.F.F.A.’s and Harvard’s lawyers approach the bench for lengthy sidebar discussions, which others in the courtroom couldn’t hear. I assumed that they would be available later, in the trial transcripts, as is customary, but it turned out that the judge automatically sealed all the sidebars. Soon after learning that the district court sent the Supreme Court sealed records, I filed a letter with the court, asking, in my capacity as a researcher and a reporter, that Judge Burroughs unseal the sidebars from 2018, so that the public, like the Court, could see the complete trial transcripts. I thought that the request would be easy to grant. Since the Supreme Court was considering a case that could significantly affect education, discrimination, and equality across the nation, the press had a right to see the complete record, minus anything that would identify particular applicants.
To my surprise, Seth Waxman, who argued the case for Harvard, quickly objected on behalf of the university—the one that employs me as a tenured law professor, whose job it is to freely conduct research and pursue knowledge. He wrote that the sidebars contained “personal and confidential information that should remain sealed,” providing examples of specific transcript pages that included information about applicants or “information that was not admitted into evidence at trial.” S.F.F.A. denied that Harvard’s examples contained confidential information and even claimed that one involved “discussion of documents that were produced in response to a public records request under the Freedom of Information Act.” Within days, the Times, the Reporters Committee for Freedom of the Press, and The New Yorker filed their own letters to the court, supporting my unsealing request.
Judge Burroughs held a hearing on the request in mid-November. I represented myself in court. She said, “There are a lot of things in those sidebars that were really just meant to be out of the hearing of the jury, not meant to be out of the hearing of the entire world for all time.” Strange, since there was, in fact, no jury at that trial. She explained that she would consider unsealing some contents of the sidebars but added, “In response to Harvard’s letter, I think that the secret sauce will stay under seal, which I suspect is what all these news medias really want.”
What was this “secret sauce”? It appeared to refer to aspects of the admissions process that Harvard wanted to keep secret—much like Coke or Heinz wouldn’t want to release their secret recipes. Yet that commitment to secrecy sat awkwardly in a case about whether a hidden process masked racial discrimination.
Judge Burroughs held two hearings about which trial sidebars to unseal and which to keep secret, but she closed the proceedings to everyone except the attorneys for Harvard and S.F.F.A. Then, at a public hearing, in mid-December, Judge Burroughs announced her decision: she would unseal most sidebars but keep some portions sealed. Some sidebars, she revealed, contained discussions of “a very poor, ill-advised, and in bad taste joke” that a Department of Education official at the Office for Civil Rights—who, in the late eighties, had led a federal investigation of Harvard—sent to Harvard’s dean of admissions. According to Judge Burroughs, the joke, which took the form of a mock memo from the Harvard admissions office, “referenced certain Asian stereotypes” and included “anti-Asian remarks.” Judge Burroughs said that she would keep sealed “the exact words” of the federal official’s “joke memo,” taking into account the “privacy interest” of the “gentleman” who wrote and sent it.
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