BOSTON — A collection of Asian-Americans contesting Harvard University’s affirmative action policies in federal court are gaining the backing of a significant ally in their quest to force the elite Ivy League institution to fork over admissions data.
The U.S. Department of Justice on Friday submitted a letter to the court to voice its “substantial interest in this suit and in public access to the summary judgment briefing and materials in this case,” which was filed by an organization calling itself Students for Fair Admission in 2014.
Court records show that lawyers representing Harvard are bent on keeping what they call “confidential material” out of the public record, as a potential summary judgment ruling looms. Since the time when Students for Fair Admission filed suit, the organization has managed to pry a limited cache of admissions data from the university, information the group claims proves that white, African-American, and Hispanic applicants have been admitted at a rate unfair to Asians. Students for Fair Admission is now asking Massachusetts U.S. District Court Judge Allison Burroughs, ahead of a planned motion for summary judgement, to order Harvard admissions officials to lift their “blanket seal” over relevant records.
“No doubt recognizing the uphill battle it faces, Harvard has proposed that the Court should issue a blanket sealing order over the entire summary judgment record, and then the parties should determine later (through a “reasonable schedule”) whether any of it was properly sealed,” SFFA’s attorneys wrote in a recent letter to Burroughs. “That is not how this works.”
The matter of a “blanket seal” on public records has also apparently drawn the attention of the New England First Amendment Coalition, an organization dedicated to defending press freedom and which lists the Boston Globe and other major news outlets as its major supporters. Sigmund D. Schutz, a lawyer representing the coalition who practices out of Portland, Maine, submitted a brief on Friday as well.
Writes Schutz:
“Because public access to records filed with the court to support or oppose disposition of civil litigation on the merits is a critical part of an open and transparent justice system, amici curiae the New England First Amendment Coalition, the Reporters Committee for Freedom of the Press, the Massachusetts Newspaper Publishers Association, and GateHouse Media, LLC respectfully request that the court allow sealed summary judgment filings only if inescapably necessary. The amici are public interest groups, an association of Massachusetts newspapers, and the owner of numerous weekly and daily newspapers in Massachusetts and throughout the United States.”
(The Latin term amici curiae means “friends of the court”; it refers to third parties that are not parties in the case but have an interest in it.)
Schutz notes in his letter that the coalition’s concern is “not whether Harvard’s admission process violates federal civil rights law, but instead that judicial records shedding light on this dispute — which is of exceptional public importance and community interest — remain open to the public,” and later claims that “less restrictive alternatives are available.”
Schult argues that student confidentiality “can be protected without a provisional seal on all filings.”
Meanwhile, the Justice Department’s public interest notice points out that Harvard receives federal funding, while “the United States has authority and responsibility to investigate alleged violations of, and to enforce, Title VI and other federal civil rights statutes.”
The Justice Department months ago launched an inquiry of its own into whether Harvard’s admissions policies discriminate against Asians.
“The United States agrees that applicants to Harvard, their families, and the general public have a presumptively paramount right to access the summary judgment record in this civil rights case,” acting U.S. Assistant Attorney General John Gore wrote.
Gore’s letter appears to have been spurred partly by dual March 30 letters submitted by lawyers from both sides. Gore specifically took aim at Harvard’s proposal “that the briefs and supporting documents be filed provisionally under seal on the established schedule” with scheduled viewing set aside for the two parties to “assess the filings” and “identify areas of disagreement concerning the sealing of those documents.”
The Department of Justice says in its letter that the public would benefit from having the curtain lifted entirely on Harvard’s cloaked admissions process.
Gore argues that the university’s proposal “would create substantial obstacles to the ability of non-parties to participate in summary judgment — and, more likely, might even eliminate that opportunity entirely.”
Harvard argued in its March 30 letter to the judge that while the university “understands that there is a public interest in the case, those interests, however, must be balanced against the need to protect individual privacy and confidential and proprietary information about the admissions process.”
Students for Fair Admission’s attorneys have vowed to work with Harvard ahead of summary judgment to redact any information that could lead to the identification of specific students and graduates, an offer Harvard’s attorneys say would be “extremely burdensome, and entirely unnecessary, for the parties or Court to engage in a document-by-document review of every single document[emphasis added by Harvard] produced in this litigation before knowing which of those documents are even at issue.”
Students for Fair Admission’s attorneys have disputed claims that Harvard’s admissions policies constitute “trade secrets.”
On Monday attorneys representing Harvard filed another letter with Burroughs in which they labeled the Department of Justice’s interests in the lawsuit as “perplexing.”
Harvard’s attorneys also criticized the timing of the Justice Department’s decision to involve itself in the case.
“SFFA’s complaint was filed in November 2014, and yet for reasons that are not articulated, the Department waited until April 2018 to suggest that it has a ‘substantial interest’ in this litigation,” the letter states, while pointing out it was the “new leadership” at the Justice Department under President Donald Trump that in September “initiated” its own investigation.
“The Department’s belated interest in this case, and its submission on this confidentiality issue in particular, cannot help but give pause,” Harvard’s attorneys added. “Aside from the cases establishing its own authority, the Department cribs all but one of the cases it cites from SFFA’s March 30 letter, and for certain issues it provides no authority beyond simply citing SFFA’s letter.”
Harvard’s attorneys subsequently pointed out that the Justice Department’s own investigation will provide the federal agency with sealed admissions information.
“And, because the Department has or will have access to all the confidential documents and filings in question, its submission is entirely unnecessary,” the letter theorizes. “To the extent the Department wished to ensure its own access to the summary judgment materials in this case, it already has that access.”
A hearing is scheduled for Tuesday in Boston. Late Monday afternoon, a group opposing the Students for Fair Admission lawsuit calling themselves Students — which describes itself as “prospective and current Asian American, Black, Latino, and Native American students who seek to protect Harvard’s right to consider race in admissions to the full extent allowed by law” — wrote Burroughs to inform her they plan to attend.
“Given the ease with which students can be identified – despite having their names redacted – through both complex computer science techniques and even basic internet searches, Students likewise agree with Harvard that it is difficult to predict in advance which documents should remain sealed. Thus, SFFA’s proposal of immediate, virtually unfettered public access to the case record poses the serious risk of releasing Students’ and other applicants’ highly personal, private information,” the Students letter states.
Harvard University Widener Library (Wikimedia) 
