Seal Kept in Place for Harvard Affirmative-Action Case

BOSTON (CN) – A plea for transparency by the U.S. Department of Justice failed to sway a federal judge Tuesday to unseal records in a challenge to Harvard University’s affirmative action policies.

Citing privacy interests in student records and admissions procedures, U.S. District Judge Allison Burroughs issued her ruling from the bench Tuesday at a brief status conference.

The group Students for Fair Admissions brought the underlying suit in 2014, saying that Harvard discriminates against prospective white and Asian students by allowing race to be one of several different factors in admission acceptance.

With the parties facing a June 15 deadline to submit briefing on summary judgment, Harvard accused the group in a March 30 letter of engaging in a publicity-seeking media campaign by trying to have the supporting documents it plans to cit filed on the public docket.

Rejecting the attack on April 6, however, the group accused Harvard of using “generalizations about the ‘proprietary’ nature of the ‘inner workings of its admission process’ … to stonewall SFFA.”

“Harvard needed to bring forth compelling evidence and documentation that specific (or at least types of) documents warrant protection as a trade secret or something approximating one,” the letter said. (Parentheses in original.)

Along with this letter, Judge Burroughs received input from the New England First Amendment Coalition and the Reporters Committee for Freedom of the Press.

Identifying themselves as friends of the court, this group called the doctrine of public access “a critical part of an open and transparent justice system.”

The United States threw its hat in the ring as well on Friday, noting that the millions of dollars that Harvard takes every year gives the pubic “a paramount interest in any proof of these allegations, Harvard’s response to them, and the court’s resolution of this dispute.”

With Attorney General Jeff Sessions now at the helm, the Justice Department confirmed in 2017 that it has been investigating Harvard’s use of race in its admissions policies.

Attorneys for Harvard at the firm Wilmer Hale meanwhile responded in their own letter Monday that the efforts to make Harvard’s confidential documents public now “would render the protective order entirely meaningless.”
As for the Justice Department’s interest, Wilmer Hale attorney William Lee said it has already provided the government with all of the documents and deposition testimony at issue.

“Harvard does not, of course, dispute the department’s authority to uphold the nation’s civil rights laws for all its citizens,” the letter states. “But the Department’s belated interest in this case, and its submission on this confidentiality issue in particular, cannot help but give pause.”

Representatives for the Justice Department did not respond to an email seeking comment, did the law firm Consovoy McCarthy Park, which represents the group Students for Fair Admissions.

In her ruling Tuesday, Judge Burroughs said she would stick with the “common court practice” of letting the parties make redacted filings public while filing unredacted materials under seal.

Eric Penley with the New England First Amendment Coalition meanwhile applauded this approach.

“She’s clearly very concerned that the parties not withhold lots of stuff that shouldn’t be redacted,” Penley said in an interview after the hearing. “We thought it was a good result that she is following the law in the First Circuit, which is that there is a presumption in favor of public disclosure of filings with the court.”

In December 2015, the First Circuit blocked a group of individual students from joining the case on Harvard’s side. The students claimed that the school’s consideration of race benefitted them.

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