The Secret Joke at the Heart of the Harvard Affirmative-Action Case

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.

The trial in S.F.F.A. v. Harvard had been about whether the university discriminated against Asian Americans in admissions. But the judge was saying that a privacy interest in words she deemed anti-Asian, written by a government official who oversaw a federal investigation of Harvard’s alleged discrimination, outweighed the public’s right to access court records. “What he said was clearly in poor taste, but I don’t think the details of what he said is what’s important,” she added. I argued to Judge Burroughs that “the interest of the public in knowing what that joke was, the actual content, the words, would be extremely important.” She disagreed, assuring me that, although the precise words would be blocked out, “you won’t be mystified about what was said.”

I also asked Judge Burroughs to unseal the transcripts of the closed proceedings that she’d held on the unsealing issue (again, with redactions of any confidential information). I thought that the public had an interest in knowing what arguments the two sides made to the court about the need for secrecy. Seeming to refuse the request, she said, “If I thought this was going to put this to bed, I would tell you right now what the arguments were, but I don’t think it will put it to bed, so I’m not going to spend any more time doing it.” She nevertheless proceeded to summarize some of the arguments that were made. To me, this only underscored the point—that a judge describing the legal proceedings (and telling the press not to concern itself with the details) is not an adequate substitute for public access to them. As I began to say as much, Judge Burroughs cut me off: “Yes, I know. I get it.” And then: “I hear you. I got it. I got it.” I wouldn’t have anticipated or believed what she said next, but there it is in the transcript: “Greedy, though, Ms. Gersen.” I said that I objected to that characterization, and she soon ended the hearing, without committing to unsealing the closed hearing transcripts.

In January, Judge Burroughs did release those hearing transcripts. They show that Harvard argued vigorously against unsealing certain sidebars, reminding the judge that concern about “the press gallery” was the reason she had sealed some discussions in the first place and maintaining that she should keep them sealed “because of the increased or the continuing public attention on this case.” Regarding the “inappropriate, anti-Asian, stereotypical, poor attempt at a joke,” Judge Burroughs explained, “What I’m trying to do is give them”—the press—“a flavor of it without really being awful about it, I guess.” She acknowledged that because the joke memo was a public document, obtained through a public-records request, she couldn’t order parties not to give it to the press, but said, “I wish you wouldn’t.” She also said, “I would love some buy-in from all of you” on the rulings. The parties, who knew that they would be in front of her again when the Supreme Court sends back the case, gave assurances that they would not appeal her rulings about sidebars. (The Reporters Committee for Freedom of the Press did file an appeal on the issue of unsealing court records, which is now pending in the First Circuit.)

What was Judge Burroughs trying to hide? I eventually obtained the joke memo and the surrounding e-mails, and what I read didn’t strike me as having been worth the fight to keep them secret. But the fight itself showed that both Harvard and the court expect the public to operate on trust that their decisions are not biased—an expectation that is all the more troubling as the Supreme Court’s likely ban on using race in admissions will drive the consideration of race further underground.

William Fitzsimmons began working in Harvard admissions more than fifty years ago and has been the dean of admissions and financial aid since 1986. The federal official who wrote the joke memo, Thomas Hibino, worked at the Boston location of the Office for Civil Rights, eventually serving as the regional director; he retired in 2014. Earlier in his career, he had worked at the Japanese American Citizens League. After Hibino oversaw the federal investigation into Harvard’s alleged discrimination against Asian American applicants, decades ago, he and Fitzsimmons became friends, and by 2012 their exchanges included banter about lunch dates and running races together, and teasing when one opted to sleep in. But the relationship wasn’t all palling around, because Hibino was still at the federal agency regulating Harvard. In April of 2013, he wrote to Fitzsimmons, “Regarding the impact of legacy on Asian American applicants, what proportion of AA applicants are legacies and what proportion of white applicants are legacies? Of course I’m happy to talk about this if necessary!” More than anything, the e-mails reveal the coziness of the federal regulator toward the regulated entity.

On November 30, 2012, amid a friendly back-and-forth about lunch plans, Hibino e-mailed Fitzsimmons an attachment that he described as “really hilarious if I do say so myself!” Hibino explained, “I did it for the amusement of our team, and of course, you guys”—presumably Harvard admissions officers—“are the only others who can appreciate the humor.” The joke memo had been written on Harvard admissions-office stationery, during the earlier investigation. It was purportedly from an associate director of admissions and parodied the admissions officer downplaying an Asian American applicant’s achievements. The memo denigrated “José,” who was “the sole support of his family of 14 since his father, a Filipino farm worker, got run over by a tractor,” saying, “It can’t be that difficult on his part-time job as a senior cancer researcher.” It continued, “While he was California’s Class AAA Player of the Year,” with an offer from the Rams, “we just don’t need a 132 pound defensive lineman,” apparently referring to a slight Asian male physique. “I have to discount the Nobel Peace Prize he received. . . . After all, they gave one to Martin Luther King, too. No doubt just another example of giving preference to minorities.” The memo dismissed the fictional applicant as “just another AA CJer.” That was Harvard admissions shorthand for an Asian American applicant who intends to study biology and become a doctor, according to the trial transcript.

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