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.
Fitzsimmons e-mailed Hibino back, “I’m stunned!” Fitzsimmons apparently believed that the admissions officer whose name was on the Harvard stationery had actually authored the memo. She “passed away a few years ago and I’d forgotten that she had such a sense of humor,” he wrote. “We’ll ‘de-construct’ at lunch. Where should we go?” Hibino wrote to clarify, “No, no! I did that from purloined stationery from your shop! Pretty convincing, huh?!!!!! I forget—are we getting together here or there?” (Through Harvard’s press office, Fitzsimmons declined to comment, and calls and messages to Hibino were not returned.)
The sidebars about the memo show that S.F.F.A. wanted to question Fitzsimmons, during his courtroom testimony, about his reaction to the memo’s “stereotypical comments about Asian Americans.” S.F.F.A. argued that the dean of admissions was “laughing along” with a joke including Asian stereotypes. Harvard objected that the memo and Fitzsimmons’s reaction should be excluded as “irrelevant,” because it was “so tangentially related to anybody’s credibility” or to a claim of Harvard’s “discriminatory animus” against Asian Americans. Furthermore, Harvard claimed that the move to introduce this evidence was “calculated to be handed to the press” and “intended to embarrass Dean Fitzsimmons.”
Judge Burroughs did not think that it was fair to assume that Fitzsimmons found the stereotypes in the memo funny, and she didn’t want what she saw as his “wholly ambiguous” comment to be public. “It has the potential to be explosively prejudicial, not to me because I take it for what it is, but in terms of the external world’s response to this,” she said. “At some point, I feel for the guy,” she added, asserting that asking him about the memo on the stand would be “designed for media consumption and not for any great search for the truth.” She ruled the memo and e-mails not relevant, and excluded them; if there were a jury, it would not have heard about them. And because she also sealed the sidebars, the press and the public knew nothing of them, either.
Now that I’ve read the joke memo and the related sidebars, I don’t agree that they were irrelevant to the issues at trial. Judge Burroughs eventually ruled that Harvard’s admissions process was not intentionally discriminatory, but she also suggested that there were “perhaps some slight implicit biases among some admissions officers that, while regrettable, cannot be completely eliminated in a process that must rely on judgments about individuals.” Allowing Fitzsimmons to be questioned about his reaction to the memo could have helped to illuminate his attitude toward Asian stereotyping. It also would have given Fitzsimmons a chance to explain his reaction and say directly what he meant. If he were asked about it at trial, he might have rebuked the stereotypes and explained, as the judge speculated, that his response was that of a nervous regulated entity “dealing with a regulator who he may feel like he has to kind of jolly along.” Or he might have said that the fact that Hibino, who is Asian American, found it “really hilarious” informed his seemingly nonchalant reaction. Or he might have said something altogether different. But the record would reflect his own words and views, rather than Judge Burroughs’s suppositions of what he thought. Whatever he would have said, it’s unlikely to have affected Judge Burroughs’s own conclusions on the merits of the discrimination claim.
Judge Burroughs’s opinion also addressed the striking fact that, when sending recruitment letters to potential applicants in “Sparse Country” (underrepresented states in the Harvard applicant pool), Harvard used an SAT score cutoff of 1310 for white students, 1350 for Asian American females, and 1380 for Asian American males. There were gasps in the courtroom when this evidence was revealed at trial. (When asked on the stand why a white boy who scored 1310 would receive a recruitment letter while his Asian American male classmate who scored 1370 would not, Fitzsimmons said, among other things, that “there are people who, let’s say, for example, have only lived in the Sparse Country state for a year or two,” and, by contrast, “there are people who have lived there for their entire lives under very different settings.”) Judge Burroughs downplayed the relevance of this disparate treatment, finding that it didn’t happen every year, it didn’t “seem to be linked to efforts to advantage or disadvantage any particular racial group,” and it was “unclear” whether it was accidental or intentional. And, despite acknowledging that receiving the recruitment letter “is correlated with a higher likelihood of admission,” she deemed it “fundamentally a marketing tool that does not affect individual admissions decisions”—thereby neutralizing one of the most troubling facts to emerge at trial.
In the sidebars, Judge Burroughs’s downplaying of the relevance of the admissions dean’s reaction to the joke memo that “referenced certain Asian stereotypes” seemed similar—neutralizing evidence that a reasonable observer might interpret as Harvard discriminating. Perhaps she was simply confident that Fitzsimmons’s “wholly ambiguous” e-mail response was unrelated to the discrimination alleged in the case. But we also know that Judge Burroughs thought that the material could “explosively” affect how the public saw the facts. So, her decision was not just to exclude the evidence but also to seal it and attempt, even long after the trial ended, to prevent the public from knowing about a federal official’s allegedly anti-Asian remarks. An attorney familiar with the case told me, “Judge Burroughs mistakenly conflated admissibility under the rules with her own decision, as the fact finder, that this evidence would have no weight with her. And then, because it would have no weight, it would be sealed to prevent embarrassment to Harvard witnesses.”
An uncomfortable subtext of the case is that Asian Americans, who now make up more than a quarter of Harvard’s freshman class—and that number could climb higher after the Supreme Court’s ruling this year—may be grabbing up a disproportionate share of coveted resources in a pluralistic society. This raises complicated questions about how we define racial discrimination—if white applicants are implicitly favored over Asian American ones, is it right to place the blame for that on race-conscious affirmative action? Or does that instead suggest that an even more transparent consideration of race for underrepresented minorities could help reduce the risk of hidden discrimination against racial minorities who are overrepresented? Oddly, though, instead of confronting these questions, a federal judge, in open court, told me that I was “greedy” for seeking public access to court proceedings.
There is another element to this unsealing saga, which has little to do with Harvard’s alleged bias. Instead, it concerns Judge Burroughs’s. During the trial, an anonymous letter, titled “Federal Judge Hides Her Own Painful History of Harvard Rejection,” was mass e-mailed to reporters. It contended that Judge Burroughs was biased because, decades earlier, her own application to Harvard College had been unsuccessful. Judge Burroughs and the parties discussed the matter in a sidebar on the trial’s sixth day. The Times reported that the “whispered sidebar” consisted of “considerable debate, along with a few chuckles,” but reporters and others present couldn’t hear its content. To this day, those pages of the transcript remain covered in large blocks of black ink.
At one hearing on my unsealing request, Judge Burroughs said that the letter “was clearly written by somebody that knew my family very well, and included sort of a lot of personal information about it.” She explained that the sealed sidebar was “about whether or not I should recuse myself” and that she wanted to keep it sealed because “I don’t think it’s germane to anything that anybody is interested in.”
Yet a core reason for the public to monitor court proceedings is to check judicial bias. Judge Burroughs’s decision to keep hidden the discussion of whether she should recuse herself is troubling, not because there’s merit to the anonymous allegation but because our faith in courts’ impartiality depends on our ability to access judicial proceedings—especially when they address an allegation of judicial bias. If anything, the part of the proceeding that was most essential for the public to access is the one that remains sealed.
I understand Judge Burroughs’s desire not to disclose personal information at trial. And I can sympathize with her possible reluctance to expose facts about Harvard’s process that might too easily be interpreted as discrimination, lest they give the Supreme Court more reason to undermine affirmative action. But I won’t easily forget her commitment to keep hidden Harvard’s “secret sauce.” If the sauce is secret, how is the public supposed to confirm whether a court is right that the sauce does or does not have bias as an ingredient? The rules of evidence and procedure are meant to protect the judicial process from prejudice, not to prevent the public from forming its own views. But, in this case, sealed sidebars and court hearings obscured private understandings between officials from Harvard and the federal government, who shared a joke about racial stereotyping, and between judge and litigants, who agreed to keep hidden a discussion of alleged judicial bias. It makes sense that, in a supercharged case, a judge may want to control not just her court but also the court of public opinion, and that Harvard would prefer that potentially unflattering material not see the light of day. But it is not greedy for the public to expect the transparency on which the courts’ legitimacy depends. ♦
