Did the New Yorker Just Sink Harvard?

You seldom look to The New Yorker for support for a conservative cause, but today the storied magazine published a devastating article by Harvard Law professor Jeannie Suk Gersen on the Harvard affirmative action case now pending at the Supreme Court. The article, “The Secret Joke at the Heart of the Harvard Affirmative-Action Case,” is devastating not only on the merits, but also for the conduct and rulings of District Court Judge Allison Burroughs (an Obama appointee) who ruled in favor of Harvard at the trial phase of this momentous case.*

Everyone should read the entire article—The New Yorker gives everyone a couple free articles a month—because it is impossible to summarize the richness of telling detail Prof. Gersen includes in this admirably compact piece.

Much of the narrative surrounds the parts of the district court trial record—chiefly long sidebars on issues of evidence to be admitted—that Judge Burroughs had sealed, until the Supreme Court, in a rare move, asked to see the entire trial record. Prof. Gersen writes: “I wondered what the district court didn’t want the public to know.”

Keep in mind that this trial was not a jury trial, but a bench trial. I don’t know if it is typical for a federal district bench trial to have lengthy sidebars on evidentiary questions, but in this instance Prof. Gersen makes a good case that Judge Burroughs wanted to suppress potential evidence embarrassing to Harvard from being mentioned in open court where reporters and the audience would hear it.

One of things Harvard successfully kept out of the trial record was a joke told by a Harvard admissions official to a Dept. of Education civil rights bureaucrat looking into things. Judge Burroughs attempted to keep this joke out of a FOIA release Gersen and several other news organizations brought, but Gersen got her hands on it somehow. Here’s Gersen’s account:

On November 30, 2012, amid a friendly back-and-forth about lunch plans, Hibino [the Dept. of Education civil rights official] e-mailed Fitzsimmons [a Harvard admissions official] 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.

Thought experiment: Swap out Asian for Black in this memo, and do you think an Obama-appointed judge would have excluded it, and the plaintiff’s request that it examine Fitzsimmons about it on the witness stand? And what would the reaction to this have been?

This is just one part—the headline part—of this remarkable article. I don’t know much about Prof. Gersen, except that she led a group of Harvard Law faculty several years ago in an attack on the lack of due process protections under Title IX.

* Students for Fair Admissions, who brought the Harvard and UNC cases, assumed they would lose at the trial court stage. What liberal-appointed judge sitting in Boston is going to rule against Harvard? But they assumed the trial record established at the district court level would provide a strong basis for the eventual Supreme Court appeal. Looks like they were more right than they knew.

P.S. A couple stray excerpts that speak for themselves:

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. . .

And maybe the most telling part about this post-trial controversy:

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. [Emphasis added.]

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