A federal official wrote a parody of Harvard’s attitude toward Asian Americans and shared it with Harvard’s dean of admissions. Why did a judge try to hide that from the public?
, which—along with a case involving the University of North Carolina—will, later this term, likely end race-conscious affirmative action in university admissions. The 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.
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.
I also asked Judge Burroughs to unseal the transcripts of the closed proceedings that she’d held on the unsealing issue . I thought that the public had an interest in knowing what arguments the two sides made to the court about the need for secrecy. Seeming to refuse the request, she said, “If I thought this was going to put this to bed, I would tell you right now what the arguments were, but I don’t think it will put it to bed, so I’m not going to spend any more time doing it.
On November 30, 2012, amid a friendly back-and-forth about lunch plans, Hibino e-mailed Fitzsimmons 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.
Now that I’ve read the joke memo and the related sidebars, I don’t agree that they were irrelevant to the issues at trial. Judge Burroughs eventually ruled that Harvard’s admissions process was notdiscriminatory, but she also suggested that there were “perhaps some slight implicit biases among some admissions officers that, while regrettable, cannot be completely eliminated in a process that must rely on judgments about individuals.
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