As Harvard’s admissions lawsuit unfolds at the Supreme Court, Massachusetts District Court Judge Allison D. Burroughs unsealed parts of 2018 Harvard admissions courtroom transcripts of private conversations between the judge and the lawyers — known as sidebars — last month.
Harvard law professor Jeannie C. Suk Gersen filed a request to unseal on Nov. 11, arguing that the high-profile case required greater transparency. Several days after Gersen, The New York Times and the New Yorker — for which Gersen is a contributing writer — also filed in support of unsealing the sidebars.
“When I went to go look at the transcripts back from 2018 to try to make sure I had a complete record of what happened at trial, I discovered that all of the sidebars were sealed, and that certainly is not normal,” Gersen said in an interview with The Crimson. “In fact, I can hardly think of other civil cases where a blanket sealing of every single sidebar of a trial would have occurred.”
Some transcript excerpts from the sixth, seventh, and tenth days of the three-week trial between Harvard and anti-affirmative action group Students for Fair Admissions, which alleges that the College discriminates against Asian American applicants, remain sealed.
Ten days after the Dec. 19 order to unseal, the Reporters Committee for Freedom of the Press filed an appeal, stating that the “undefined category” of applicant information is not “sensitive enough to overcome the presumption of access.” On Jan. 11, the New Yorker filed another letter of appeal.
Burroughs said in her decision that the Court weighed the “sensitivity of the information, the nature and degree of the harm, the reliability of the information, and the interest that the public has in the information” when deciding which sidebars should be unsealed.
The sealed transcripts include an email exchange between Thomas J. Hibino, director of the Department of Education Office for Civil Rights, and William R. Fitzsimmons ’67, dean of Admissions and Financial Aid.
According to Burroughs, Hibino’s email contained a “joke memo” written as if a Harvard admissions officer was “inappropriately satirizing” Asian American applicants.
Hibino had previously headed the investigation of Harvard College’s admissions process for discrimination against Asian American applicants. Burroughs did not specify the date the email was sent.
“The material is dated, it implicates the interests of a third party who was never cross-examined at trial, and its relevance to the case is limited only to the Dean’s response, which shall be unsealed,” Burroughs wrote.
“Further, the offensive attempt at humor includes inappropriate and inflammatory language that does not need to be repeated or aired,” Burroughs added. “The specific words used are not relevant to the case — the salient information is the recipient’s reaction to the email, which will be unsealed.”
In response to Hibino’s email, Fitzsimmons wrote, “I’m stunned. This person passed away a few years ago, and I had forgotten she had such a sense of humor. Will deconstruct at lunch. Where should we go?”
Harvard spokesperson Rachael Dane declined to comment on the decision or Fitzsimmons’ response.
In a Nov. 15 letter to Burroughs, Harvard lawyer Seth P. Waxman ’73 requested that trial transcripts containing sidebars remain sealed to protect “personal and confidential information.”
On Nov. 17, SFFA filed a letter agreeing that identifying information should remain sealed, but opposed Harvard’s blanket request to keep the sidebars sealed.
“SFFA had no objections to unsealing,” SFFA President Edward J. Blum said in an emailed statement to The Crimson on Friday.
Burroughs ruled in favor of Harvard in the 2018 admissions trial, striking down allegations of discrimination against Asian Americans in the College’s admissions process.
“I was surprised that Harvard objected to unsealing the sidebars because it really had been four years since the trial,” Gersen said. “And the case is now at the Supreme Court of the United States.”
The Supreme Court is expected to hand down a decision ending race-conscious admissions in higher education in early spring or summer.
Corrections: January 25, 2023
A previous version of this article incorrectly stated that Thomas J. Hibino emailed a “joke memo” to Dean of Admissions and Financial Aid William R. Fitzsimmons ’67 while heading an investigation into Harvard College’s admissions practices. In fact, the email to Fitzsimmons was sent after the investigation’s conclusion.
A previous version of this article incorrectly stated that the New York Times filed an additional letter of appeal on Jan. 11. In fact, the New Yorker filed the additional letter of appeal.
—Staff writer Michelle N. Amponsah can be reached at firstname.lastname@example.org. Follow her on Twitter @mnamponsah.
—Staff writer Emma H. Haidar can be reached at email@example.com. Follow her on Twitter @HaidarEmma.
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