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In the months leading up to the Supreme Court decision on Fisher v. University of Texas at Austin, Harvard continued a prolonged dispute with an anti-affirmative action group over the discovery period in a similar, pending lawsuit challenging the University’s admissions policies.
The suit—filed in 2014 by Students for Fair Admissions—alleges that Harvard discriminates against Asian American applicants in its admissions process in order to maintain racial “quotas” on the campus.
Currently, Harvard’s case is still in the process of discovery, a stage during which both parties can request information from one another to use in subsequent court proceedings.
Now, counsel from both sides of the dispute are debating which information should be obtainable during discovery. Harvard has sought information on Students for Fair Admissions’ membership so it can determine whether the organization has “standing” to sue on behalf of its constituents. Students for Fair Admissions has requested demographic information from Harvard’s admissions records to mount an argument proving that Harvard is rejecting academic talent for its goal of creating a diverse campus.
Lawyers from both Harvard and Students for Fair Admissions convened at a status conference in late February to discuss several elements of the case. One of those disputed was the negotiated protective order upon which both parties had previously agreed. The order would shield “highly confidential” material, like individual student records, from court scrutiny.
In the February status conference, Patrick Strawbridge, a lawyer for Students for Fair Admissions, voiced concern that the protective order would prevent their lawyers and expert witnesses from relaying relevant information to their clients.
Additionally, Strawbridge requested that Harvard make public data about academic performance broken down by racial demographics, asserting that the University has a burden to prove that their consideration of race in the admissions process is “achieving their stated goal which presumably is a diverse campus climate that stretches beyond the date of admission.”
Judge Allison D. Burroughs was hesitant to provide that information ahead of a decision on the Fisher case, citing concerns about the implications of making that data available.
“If, you know, if you are going to suggest that certain demographic groups perform or underperform or over-perform other demographic groups, I mean, that can have sort of political implications that I am not entirely comfortable putting out there unless we need to,” Burroughs said, according to a transcript of the status conference.
It is unclear whether the conclusion of Fisher will result in a large document dump, but because Fisher reinforced the point that universities have a burden to prove their due diligence in the admissions process, Burroughs may call for more data to be shared.
In April, both parties agreed to draft letters once Fisher’s decision was released, detailing the ways they believed the Supreme Court decision would affect the ongoing litigation. Another status conference is scheduled for July 20.
Harvard called for Students for Fair Admissions to release details of its membership and funding sources to determine whether Students for Fair Admissions’ members have significant control over the organization's function. In response, Students for Fair Admissions sent Burroughs a letter in late April arguing that releasing its membership details would encroach on their first amendment rights and pose a danger to individuals who have chosen to stay anonymous.
At the April conference, Burroughs denied nearly all of Harvard’s requests for Students for Fair Admissions’ membership details, noting that she did not see the relevance of those documents in the current litigation.
In June, William F. Lee ’72, the senior fellow of the Harvard Corporation and a partner at Wilmer Hale, the DC firm representing Harvard, filed to be admitted to the court as counsel for the University. According to Tania deLuzuriaga, Harvard decided to beef up its litigation team in the event that the case became more active in the wake of Fisher. Lee has since been added to the list of attorneys representing the Harvard in the court’s public database.
—Staff writer Brandon J. Dixon can be reached at email@example.com. Follow him on Twitter @BrandonJoDixon.
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