A lawsuit brought against Harvard’s practice of affirmative action has moved into the discovery stage with both sides stuck in a protracted back-and-forth battle over access to documents.
However, the negotiations are advancing slowly during the partial suspension of court proceedings pending the Supreme Court’s ruling on affirmative action expected later this year.
The case was brought forward by an anti-affirmative action group known as Students for Fair Admissions and alleges that Harvard’s admissions process discriminates against Asian American applicants. The case is in a stage known as “discovery,” during which both Students for Fair Admissions and Harvard’s attorneys have the opportunity to request information from each other for use in court proceedings.
Although the plaintiffs originally brought the suit against the University in the fall of 2014, Harvard argued that discovery should be placed completely on hold pending a decision in the related affirmative action Supreme Court case Fisher v. Texas.
In the last month, lawyers for both sides have filed a combined total of four motions to seal documents, according to court records. Judge Allison D. Burroughs, who is presiding over the case, is thus able to view unredacted copies of documents containing sensitive information. Information about Harvard’s admissions process, as well as excerpts from testimony by Harvard Director of Admissions Marlyn E. McGrath, have been redacted from the publicly released versions of those letters.
Edward Blum, the president of Students for Fair Admissions, said the discovery process has been “pretty garden-variety.”
Specifically, Blum criticized Harvard for withholding information about the role race plays in its admissions process while requesting information about the unknown claimants behind the lawsuit.
“Harvard has data and documents that will contain personal information about students and application information that they would like only the attorneys for the litigants to see, and we would like the same courtesy concerning our students and who they are,” he said.
While the discovery process “hasn’t been stopped completely,” Blum said, “it is on slow motion until the Fisher decision is released.”
Experts have previously predicted Fisher could affect Harvard’s case, although the University of Texas is a public university and the outcome would not necessarily apply to Harvard, a private university. Further litigation would likely be required to hash out the legal implications for private universities.
Peter F. Lake ’81, a professor at Stetson University who specializes in higher education law, said he was not surprised by the challenges arising in the discovery process, which he termed “border wars over who gets to see which documents.”
Lake said the conflict seemed in part due to disagreement between both sides over how best to protect the confidentiality of students and applicants.
“There’s a number of people whose privacy could be compromised,” he added. “Most admissions committees like to operate with a certain amount of autonomy, so that they can have candid discussions about individual applicants.”
Harvard administrators have strongly advocated for current affirmative action practices.
University President Drew G. Faust has promised a “vigorous defense” of Harvard’s consideration of race in its admissions process. Harvard’s General Counsel, Robert W. Iuliano ’83, has also said in response to the lawsuit that colleges “must continue to have the freedom and flexibility to consider each person’s unique backgrounds and life experiences” in their admissions processes.
Faculty of Arts and Sciences Spokesperson Anna Cowenhoven declined to comment.
—Staff writer Aidan F. Langston can be reached at email@example.com Follow him on Twitter @AidanLangston.
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