Affirmative Action or Transparency, Pick One

In the hierarchy of court systems, lower-level courts (typically referred to as trial courts or district courts) handle the dirty work of sifting through an ass-load of witness testimonies, pretrial hearings, exhibit litigation, etc. across what can amount to months or even decades of lawfights. For context, one of my felony criminal trials took about 4 days of testimony and generated about 1000 pages in transcripts. A civil trial with well-heeled and sophisticated litigants is going to kill way more trees.

Normally, appellate courts (such as SCOTUS) don't want to concern themselves with the nitty gritty detail of what exactly was said at every hearing of every trial. Generally speaking, appellate courts will only deal with questions of law rather than of facts, so if they're going to get anything at all, appellate courts want a tidy streamlined package of only the bare minimum information they'd need to answer the limited questions in front of them.

Public trials are one of the bedrocks of the American legal system. Even if you're not directly involved, the presumption for any legal case is one of transparency and the exceptions are limited. During a trial, jurors are expected to come to a decision based solely on what was admitted into evidence in front of them, and so whenever the parties have to discuss whether the jurors are allowed to see anything, this naturally has to be done outside of the presence of the jury (known as a “sidebar”). Keeping the jury out of the loop is routine, but lasts only until their job is done, and sidebar conversations are absolutely still part of the open record.

The only other shroud used by the court system is sealing. The most common applications, such as redacting bank account information or social security numbers, are banal and trivial to justify. At least on paper, if a court is going to seal anything, it must make a determination that there is an “overriding interest” requiring secrecy that trumps the presumption of openness. But in practice, parties routinely ask the court to seal either dockets, and sometimes even ask to seal the motions to seal (Eugene Volokh has done heroic work on this front, watching dockets across the country like a hawk and regularly filing successful motions to unseal).

The big affirmative action case before SCOTUS at the moment involves a lawsuit against Harvard for anti-Asian discrimination. SCOTUS made the unusual step of requesting everything from the trial court. The only reason this would happen is if SCOTUS has a reason to think they're not seeing the full picture, and at least in this case it seems like the trial judge has indeed been trying to hide some skeletons. Jeannie Suk, a Harvard law professor, has been watching this case with interest and noticed that the transcripts for the multiple sidebars were automatically sealed by the judge. Suk wrote about her efforts to pry open this sealed vault and what she found hidden inside.

What was Judge Burroughs trying to hide? I eventually obtained the joke memo and the surrounding e-mails, and what I read didn’t strike me as having been worth the fight to keep them secret. But the fight itself showed that both Harvard and the court expect the public to operate on trust that their decisions are not biased—an expectation that is all the more troubling as the Supreme Court’s likely ban on using race in admissions will drive the consideration of race further underground.

William Fitzsimmons began working in Harvard admissions more than fifty years ago and has been the dean of admissions and financial aid since 1986. The federal official who wrote the joke memo, Thomas Hibino, worked at the Boston location of the Office for Civil Rights, eventually serving as the regional director; he retired in 2014. Earlier in his career, he had worked at the Japanese American Citizens League. After Hibino oversaw the federal investigation into Harvard’s alleged discrimination against Asian American applicants, decades ago, he and Fitzsimmons became friends, and by 2012 their exchanges included banter about lunch dates and running races together, and teasing when one opted to sleep in. But the relationship wasn’t all palling around, because Hibino was still at the federal agency regulating Harvard. In April of 2013, he wrote to Fitzsimmons, “Regarding the impact of legacy on Asian American applicants, what proportion of AA applicants are legacies and what proportion of white applicants are legacies? Of course I’m happy to talk about this if necessary!” More than anything, the e-mails reveal the coziness of the federal regulator toward the regulated entity.

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. 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.

Like Suk, I can't think of any possible justification to keep something like this hidden under seal. In a case about racial discrimination against Asians, it seems patently absurd to claim how Harvard officials and federal regulators pally around and openly mock Asians is somehow not relevant to the issue. It seems plain to me that the judge chose to hide it because it's embarrassing and inconvenient to Harvard. Anti-Asian bias also came up from education officials in the Thomas Jefferson High School case, where text messages plainly revealed their intent was to reduce the number of Asian students enrolled.

I'm very much against Affirmative Action policies. Although I'm not opposed in principle to remedial measures designed to narrowly target affected groups (although the amounts were pitiful, see Japanese internment compensation), painting entire groups with such a broad brush doesn't work when we have such an incoherent taxonomy of race. Beyond that, although Affirmative Action is often cited as evidence of a “woke pro-minority” institutional bias it seems just as plausible to conclude that privileged white people are hiding behind the “black & hispanic” veil as a way to disguise their motivation to avoid having to compete against Asians for the top spots (I'm open to evidence showing one way or another).

Harvard plainly wants to be able to discriminate on the basis of race. They may offer lofty justifications about why their particular kind of racial discrimination is justified or warranted or morally right, but no one is obligated to accept their statements at face-value. The fact that Harvard (with the help of a federal judge) is working so hard to avoid transparency only makes suspicion that much more warranted as a response to their actions.