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U.S.

Asian-Americans Suing Harvard Say

Admissions Files Show Discrimination
By ANEMONA HARTOCOLLIS APRIL 4, 2018

A group that is suing Harvard University is demanding that it publicly release

admissions data on hundreds of thousands of applicants, saying the records show a
pattern of discrimination against Asian-Americans going back decades.

The group was able to view the documents through its lawsuit, which was filed in
2014 and challenges Harvard’s admissions policies. The plaintiffs said in a letter to
the court last week that the documents were so compelling that there was no need for
a trial, and that they would ask the judge to rule summarily in their favor based on
the documents alone.

The plaintiffs also say that the public — which provides more than half a billion
dollars a year in federal funding to Harvard — has a right to see the evidence that the
judge will consider in her decision.

Harvard counters that the documents are tantamount to trade secrets, and that
even in the unlikely event that the judge agrees to decide the case without a trial, she
is likely to use only a fraction of the evidence in her decision. Only that portion, the
university says, should be released.

“This is an important and closely watched civil rights case,” William S.

Consovoy, the lawyer for the group, Students for Fair Admissions, said in his letter to
the court. “The public has a right to know exactly what is going on at Harvard. Even if
this were a commercial issue — as Harvard would like to portray it — the public

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would have a right to know if the product is defective or if a fraud is being

perpetrated.”

At stake in the dispute is the secrecy of the university admissions process, especially
at elite institutions like Harvard that are competing for a small pool of highly
qualified students, and whether and how race and ethnicity play a role.

Students for Fair Admissions includes more than a dozen Asian-American

students who applied to Harvard and were rejected. They contend in their lawsuit
that Harvard systematically and unconstitutionally discriminates against Asian-
American applicants by penalizing their high achievement as a group, while giving
preferences to other racial and ethnic minorities. They say that Harvard’s admission
process amounts to an illegal quota system.

A spokeswoman for Harvard, Rachael Dane, while declining to comment on the

specifics of the litigation, said: “Harvard College does not discriminate against
applicants from any group in its admissions processes. We will continue to vigorously
defend the right of Harvard, and other universities, to seek the educational benefits
that come from a class that is diverse on multiple dimensions.”

Harvard gave the court the documents in question, which include six years of
admissions data on hundreds of thousands of high school students, as part of the
pretrial discovery process. About 40,000 students apply to Harvard each year.

The judge in the case, Allison D. Burroughs of the Federal District Court in
Boston, has scheduled a hearing on April 10 for both sides to present oral arguments
on whether the documents should be made public.

The two sides provided lengthy letters to Judge Burroughs, giving a preview of
their arguments. The judge has set a trial date for next January, though Harvard in
its letter said it was prepared to go to trial as soon as October.

The contents of the documents have been only roughly sketched out in court
papers. But Harvard said in its letter that the parties have exchanged more than
90,000 pages, including “deeply personal and highly sensitive information about
applicants to and students at Harvard and the inner workings of Harvard’s
admissions process.”

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“Harvard understands that there is a public interest in this case and that the
public has certain — though not unfettered — interests in access to judicial
materials,” the university said. “Those interests, however, must be balanced against
the need to protect individual privacy and confidential and proprietary information
about the admissions process.”

The leader of Students for Fair Admissions and the architect of the case against
Harvard is Edward Blum, a longtime crusader against affirmative action who has
recruited plaintiffs, hired sympathetic lawyers and raised millions of dollars from
conservative groups to challenge voting rights laws and affirmative action policies,
often successfully.

One of Mr. Blum’s landmark cases was a lawsuit by Abigail Fisher, a white
applicant who said she was denied admission to the University of Texas at Austin
because of her race. The United States Supreme Court ruled 4-3 in favor of the
university in 2016, saying that it is constitutional to use race as one of many factors
in admissions decisions.

Critics have seen the lawsuit against Harvard, which seems intended to go to the
Supreme Court, as an attempt to reignite that battle.

The Trump administration has taken an interest in the issue, opening a parallel
investigation based on a separate 2015 complaint to the Justice Department by a
coalition of Asian-American organizations.

In its letter to the judge, Harvard said that it had an obligation to protect the
identities of applicants, who take it on faith that their applications will remain
private. While names and other information that could directly identify applicants
have been redacted from the documents, the university said that hometowns, awards
and other elements could reveal applicants’ identities through simple internet
searches.

The documents also include deposition testimony concerning the procedures

Harvard used to evaluate applications; internal correspondence among admissions
officers about applicants’ qualities; and statements by admissions officers about why
they liked some applicants better than others.

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“That information is highly proprietary to Harvard and of great interest to

college admissions consultants and others who seek any advantage they can muster
in the highly competitive admissions process,” Harvard said in its letter. Releasing it
“would put Harvard at a severe competitive disadvantage,” the university said, and
would prompt applicants to try to game the system.

Students for Fair Admissions scoffed at the notion that the admissions
procedure was akin to a trade secret. “This case does not involve anything like
‘national security, the formula for Coca-Cola or embarrassing details of private life,’ ”
the group said, citing case law.

The group noted that Harvard officials have repeatedly said that there is no
formula for being admitted, and that books and articles have been written about how
the Harvard admissions process works.

The plaintiffs cited a landmark affirmative action case, Gratz v. Bollinger, in

which the Supreme Court ruled in 2003 that the University of Michigan was using an
unconstitutional scoring system for undergraduate admissions. The system
automatically awarded 20 out of 150 points toward admission to members of
underrepresented minorities.

“There is no way the public could have understood the dispute,” the group said,
“if the facts had been hidden.”

A version of this article appears in print on April 5, 2018, on Page A20 of the New York edition with the
headline: Asian-Americans Suing Harvard Say Documents Prove Discrimination.

© 2018 The New York Times Company

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