Affirmative action battle brewing at Harvard

Printed from:

CAMBRIDGE — An organization currently suing Harvard, alleging that the university discriminates against qualified Asian applicants, is now fighting the Ivy League institution’s efforts to force it to disclose its membership list and funding sources.

Describing Harvard’s request as “a fishing expedition,” Patrick Strawbridge, an attorney for Students for Fair Admission, told Harvard’s litigation team in an April 1 letter that the school’s discovery request is “unreasonable” and not relevant to the merits of the lawsuit

The suit, filed in Massachusetts federal court in November 2014 on behalf of a a group of applicants and potential applicants, including an unnamed Chinese-American student who graduated first in the class from a nationally ranked high school and was denied admission to the Harvard class of 2014, claims that Harvard discriminates against Asian American applicants.  Specifically, plaintiffs allege that Harvard sets unlawful “target percentages” for certain racial and ethnic groups and caps the number of Asian students admitted in violation of Title VI of the Civil Rights At of 1964. The case is currently in the discovery phase, meaning the time period in which the parties are required to exchange information about the evidence and witnesses to be presented at trial.

On April 15, attorneys for Harvard filed a motion asking Judge Allison D. Burroughs to compel SFFA to disclose its membership list and funding sources.  Harvard claims the information is necessary to determine whether SFFA is “in fact a bona fide membership organization,” despite the fact that SFFA has already turned over the names of the members who introduced the complaint, the organization’s Internal Revenue Service application and subsequent approval paperwork, and a copy of its annual report.

SFFA contends not only that the information is irrelevant to the legal issues in the case but that disclosure would but members and the organization at risk.  In an April 29 filing, SFFA President Edward Blum and SFFA Board Member Abigail Fisher stated that they have been repeatedly harassed for their opposition to racial preferences

In a declaration that amounts to sworn testimony, Fisher, who sued the University of Texas in 2008 alleging that affirmative action policies were behind the school’s decision not to admit her, said that since 2008 thousands of people have publicly questioned called her a racist, threatened her, and demeaned her “in very vulgar terms” using the social media “hashtag” #StayMadAbby.”

Fisher stated she can personally understand why SFFA members are fearful about having their identities disclosed.

“It would not be fair for someone who expected confidentiality and did not volunteer for a public role to endure anything like what I have gone through because of my participation in the Fisher case,” she wrote.

Fisher’s case is still ongoing and is slated to be decided by the U.S. Supreme Court in June.

Blum, in his declaration, relayed concerns from members who are concerned that disclosure of their identities would prompt “retaliation” that is “based on the fact that there are many people who are hostile to SFFA and to those who support its mission.”

Blum wrote about his own experiences, noting that he “routinely receives hate mail and threats,” including “vile text messages” calling him a “racist bigot” and others that “have maligned my Jewish heritage in derogatory ways.”

Blum noted that the membership list also includes Asian-American parents and potential future Harvard students, whose prospects for admission could be derailed if their identities are known and added that fear of public backlash has also kept several current parents and students from joining SFFA as standing members.

“They believe that Harvard’s admissions process is unfair, but they are uncomfortable doing so because of fear that their identities could be disclosed and that they could suffer retaliation by Harvard and hostility from the public,” Blum noted.

Disclosure of SFFA’s donor network, Blum added, could also have a disastrous financial impact on the organization.

“Some of these donors are willing to contribute to SFFA on the condition that they will remain confidential due to concerns about negative publicity or other consequences if their identities and contributions were publicized,” he wrote.

SFFA currently has more than 20,000 members, according to the organization’s website.

Reached Tuesday, Blum said the case overall is nowhere close to being decided. The timeline of the discovery phase, he added, also hinges on Fisher’s Supreme Court case.

“The judge has slowed discovery down substantially until the Fisher case comes down from the Supreme Court,” Blum noted.

Most recently, attorneys representing Harvard and SFFA participated in a status conference, which was described in a docket entry as focusing on a “discovery dispute.”

A message left Wednesday afternoon with the office of Robert Iuliano, Harvard’s senior vice president and general counsel, was not immediately returned.

According to past court filings, Harvard has placed testimony delivered by admissions officers, in addition to admissions policies and statistics, under seal.  According to a transcript of the conference held on Jan. 28, however, attorneys representing Harvard acknowledged there are about 1,600 admission “fields,” or specific areas where prospective students are evaluated. The disclosure prompted a comical exchange between the various attorneys involved and the judge.

“I don’t know if I should be starting to feel better or worse about the fact that I didn’t get into Harvard,” Burroughs said. “If there is 1600 fields, I could have been deficient in a lot of them. If there is only 10, I feel like I hopefully would have made the cut.”

A message left with Strawbridge on Wednesday was not immediately returned. In his letter to attorneys representing Harvard, Strawbridge called the request to divulge SFFA’s membership list, donors and internal emails as “unprecedented.”

“SFFA — like the NAACP, the ACLU, the Sierra Club, and all voluntary membership associations — should not be subjected to the sweeping discovery Harvard seeks,” Strawbridge wrote.

“Indeed, we are aware of no such association that has ever been forced to submit to this kind of intrusive and abusive investigation merely because it brought litigation on behalf of its injured members.”

Contact Evan Lips at [email protected] or on Twitter at @evanmlips.