Asks Jeannie Suk Gersen, in "The Secret Joke at the Heart of the Harvard Affirmative-Action Case" (The New Yorker). The case, pending before the Supreme Court, it Students for Fair Admissions v. Harvard.
During the trial, [Judge Allison Burroughs] 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.... [T]he judge automatically sealed all the sidebars. ... I filed a letter with the court, asking, in my capacity as a researcher and a reporter, that Judge Burroughs unseal the sidebars...
To my surprise, Seth Waxman, who argued the case for Harvard, quickly objected on behalf of the university—the one that employs me as a tenured law professor, whose job it is to freely conduct research and pursue knowledge. He wrote that the sidebars contained “personal and confidential information that should remain sealed,” providing examples of specific transcript pages that included information about applicants or “information that was not admitted into evidence at trial.”....
Various news organizations joined Professor Gersen's request.
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.”
But there was no jury.
“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.”
Secret sauce?! Did that refer to some sort of trade secret of Harvard's? But that sounds like it would be the secret to how Harvard manages to accomplish its racial balancing, the very subject of the lawsuit.
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. 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....
Why would protecting this man, who exercised federal power, outweigh the interest in finding out about his bias?!
“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.”
I also asked Judge Burroughs to unseal the transcripts of the closed proceedings that she’d held on the unsealing issue... She [would only] summarize some of the arguments that were made.... As I began to [argue], Judge Burroughs cut me off: “Yes, I know. I get it.” And then: “I hear you. I got it. I got it.” I wouldn’t have anticipated or believed what she said next, but there it is in the transcript: “Greedy, though, Ms. Gersen.”...
Greedy!!
In January, Judge Burroughs did release those hearing transcripts. They show that Harvard argued vigorously against unsealing certain sidebars.... Regarding the “inappropriate, anti-Asian, stereotypical, poor attempt at a joke,” Judge Burroughs explained, “What I’m trying to do is give them”—the press—“a flavor of it without really being awful about it, I guess.”
If it's that awful, that's why we need it. Gersen does get hold of the joke memo, because it was a public document, so why work so hard to suppress it? Gersen says it's because "both Harvard and the court expect the public to operate on trust that their decisions are not biased."
The federal official who wrote the joke memo, Thomas Hibino, worked at the Boston location of the Office for Civil Rights.... After Hibino oversaw the federal investigation into Harvard’s alleged discrimination against Asian American applicants, decades ago, he and [Harvard admissions official William Fitzsimmons] became friends....
On November 30, 2012, amid a friendly back-and-forth about lunch plans, Hibino e-mailed Fitzsimmons an attachment.... 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.
Fitzsimmons e-mailed Hibino back, “I’m stunned!” Fitzsimmons apparently believed that the admissions officer whose name was on the Harvard stationery had actually authored the memo. She “passed away a few years ago and I’d forgotten that she had such a sense of humor,” he wrote. “We’ll ‘de-construct’ at lunch. Where should we go?” Hibino wrote to clarify, “No, no! I did that from purloined stationery from your shop! Pretty convincing, huh?!!!!! I forget—are we getting together here or there?”....
Hibino and Fitzsimmons are still around and both declined to comment on this article.
Judge Burroughs excluded the memo as irrelevant because Fitzsimmons' reaction was ambiguous. She said: “It has the potential to be explosively prejudicial, not to me because I take it for what it is, but in terms of the external world’s response to this.... At some point, I feel for the guy.”
