Law Professor Jousts With Harvard Over Secret Affirmative Action Transcripts

The Cambridge-based school worries that the ‘secret sauce’ of its admissions process could be spilled.

AP/Elise Amendola, file
The campus of Harvard University at Cambridge, Massachusetts. AP/Elise Amendola, file

The request by a law professor, Jeannie Suk Gersen, that a district court judge unseal sidebar conversations in a high-profile affirmative action case — Students for Fair Admissions v. Harvard — pits the university against one of its celebrated faculty members in a battle over access that Harvard worries could disclose the “secret sauce” of its admissions process. 

Mrs. Suk Gersen has written that she is an “Asian American supporter of affirmative action who attended élite universities, and the first Asian American woman to be tenured at Harvard Law School.” 

According to Mrs. Suk Gersen’s faculty webpage, she teaches “constitutional law, criminal law and procedure, family law, and the law of art, fashion, and the performing arts.” She is a contributing writer to the New Yorker magazine.     

The conversations at the crux of the conflict between Mrs. Suk Gersen and her employer transpired four years ago in district court. The transcripts in that case have long been publicly available, but the conversations between the attorneys and Judge Allison Burroughs have been redacted. 

In that case, which eventually made its way to the Supreme Court on appeal, Judge Burroughs found for Harvard because there were “no quotas” involved in the admissions process, which she acknowledged was marred by “identifiable imperfections” and “implicit bias.”  

In a filing to Judge Burroughs, Mrs. Suk Gersen asked the jurist to “unseal the transcripts of sidebars, so that the entire trial transcript may now be available to the public.” She notes that she is a “scholar who is conducting research and writing on the case” as both a professor and a journalist.

A sidebar conversation is one that takes place next to the judge’s bench, out of earshot of the jury that will render a verdict. Lawyers can initiate these conclaves by asking, “May I approach the bench?” Every sidebar is required to include counsel from both sides. 

The public and the press’s right of access to criminal trials and the records that they generate on the basis of the First Amendment was codified by the Supreme Court in a 1980 case, Richmond Newspapers, Inc. v. Virginia. This right, however, is qualified, not absolute. Subsequent cases extended access to  jury selections and preliminary proceedings, but not grand jury proceedings. 

Allowing the public to lay eyes on a particular case depends on whether the proceedings would have been historically accessible under common law, and whether “public access plays a significant positive role in the functioning of the particular process in question.”

Even as closed courtrooms have become rare, sidebars and discussions in judge’s chambers have long been presumed private. However, they are recorded by a court reporter, and are occasionally released after trial, if requested.

Harvard has resisted the effort to broadcast the sidebar conversation, arguing in response to Mrs. Suk Gersen that the sidebars contain “personal and confidential information that should remain sealed.” The lawyer whose John Hancock is on that filing, Seth Waxman, represented the school before the high court.

In a hearing to weigh the merits of Mrs. Suk Gersen’s request and Harvard’s resistance, Judge Burroughs mused that she thought that the “secret sauce will stay under seal, which I suspect is what all these news media really want,” Law.com reports.

At trial, Harvard argued that if its formula became known its “competitors might try to utilize information” about the “number of students Harvard seeks to admit” to “their advantage and to Harvard’s detriment.” It also fretted that “students would try to “game the system” to “conform to what they believe Harvard wants from them.”   


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