That this article even exists is striking because it involves an Obama judicial appointee and a legal case that every progressive assiduously defends as the core of social justice: Students for Fair Admissions v. Harvard.
The New Yorker article by Jeannie Suk Gersen doesn’t necessarily expose anything that would change the outcome of the case, but it does show how thoroughly Judge Allison Burroughs, an Obama appointee, was biased toward protecting Harvard’s affirmative action discrimination against Asians.
And it sheds light on the larger culture of the Harvard mafia. That raises the question of whether a fair trial can even happen when the plaintiff is not only Harvard, but the system around it that discriminates in the name of social justice.
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).
Try and make that argument with black students or a minority group that isn’t a ‘model’ and see what happens.
But that we already know. What’s troubling is how much of the case was kept a secret to protect Harvard and its cronies.
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…
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…
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…
There was no legal basis for sealing anything except serious proprietary trade secrets. But in this case the seal of secrecy was protecting the kind of thing that gets you canceled if directed at non-model minorities. And which demonstrated that Harvard and the Fed regulators who were supposed to be protecting civil rights had contempt for Chinese-American applicants.
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.
Apparently, DOE officials and Harvard officials have a right to privacy. Who knew?
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.”
This goes on for a while and you can read the original article to get the full content and context, but what it does reveal is the degree to which the system is inherently biased in its own favor. In the era of pulpit-pounding about systemic racism and cancel culture, the system is very invested in protecting certain kinds of systemic racism and bigotry.
Burroughs went to great lengths to keep a racist joke about Chinese applicants written by an Office of Civil Rights official and sent to a Harvard admissions official that cast light on how they viewed these applicants.
The Supreme Court demanded the whole thing.
The (Supreme) 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.
Should all of this really be “password protected and encrypted”?
Do the courts serve the public or political elites?
If this case had involved discrimination by some local bakery in Georgia or police department in Arkansas, there’d be nothing secret about it. Every single piece would have been dragged through the media.
But Harvard is different. And with a judicial system dominated by Ivy League people, maybe that’s the problem.