UPDATED: April 8, 2018 at 11:07 p.m.
The Department of Justice called for the unsealing of admissions data Harvard has repeatedly argued should remain private in an amicus brief the department filed Friday as part of an ongoing lawsuit that alleges Harvard discriminates in its admissions process.
The filing also directly connected the admissions lawsuit to the department’s ongoing probe into Harvard’s admissions processes. It argued the suit—brought by anti-affirmative action group Students for Fair Admissions in 2014—“overlaps” with and could “directly bear” on the separate Justice Department investigation. The filing also asserts the department could join the case as a “friend of the court,” depending on how the Students for Fair Admissions suit plays out.
The department’s actions show the Trump administration is likely to support Students for Fair Admissions in their attempts to challenge Harvard’s admissions processes. The outcome of the lawsuit and the probe could have far-reaching implications for affirmative action policies across the United States.
The filing calls for “public access” to all “summary judgment materials” in the case unless a party requests privacy for a “most compelling reason.” The filing also directly urges the court to reject the University’s previous request that case-related admissions information remain private.
“To be sure, there is weighty interest in protecting the private identities of students and applicants,” the filing reads. “But neither that interest nor any of Harvard’s other generalized arguments warrant adoption of Harvard’s proposal to file all summary judgment materials under seal.”
“In fact, Harvard’s proposal contravenes the governing law and should be rejected for that reason as well,” the filing reads.
The Justice Department argued immediate public access is needed to allow outside parties to effectively participate in the case by filing amicus briefs.
“The United States and any amici can identify, understand, and contribute to the legal arguments and factual support that the parties present to the Court only if they can access the summary judgment briefs and materials,” the filing reads.
The department further asserts a “paramount interest” of the public in the case, noting that “the public funds Harvard at a cost of millions of dollars each year.” The University reported it received $618 million in federal funding in fiscal year 2017.
Harvard and Students for Fair Admissions previously battled over the privacy of the College’s admissions data in clashing briefs both organizations filed last week. Harvard asked for sensitive documents to be “filed provisionally under seal.” Students for Fair Admissions, however, requested that the documents be filed publicly.
The Justice Department’s filing took particular issue with arguments the University previously advanced in favor of keeping the admissions data under seal.
“Harvard offers no justification for this approach other than generalized assertions regarding student privacy and a purportedly proprietary admissions process,” the filing reads.
The Students for Fair Admissions lawsuit alleges Harvard discriminates against Asian-Americans in its admissions process. Roughly three years after that suit began—and under a new presidential administration—the Department of Justice launched an investigation into Harvard’s admissions practices to explore that same claim.
Under the Obama administration, the Justice Department and the Department of Education decided to take no action on a similar complaint about Harvard’s admissions filed May 2015.
As part of the Justice Department’s ongoing probe, Harvard offered to provide redacted student records to the department after the body threatened to sue for the documents. The Justice Department said in December it was “reviewing” the University’s offer. That review appears to be over—and the department has concluded the offered material is not sufficient.
Harvard spokesperson Rachael Dane wrote in an emailed statement Friday that the College will seek to protect applicants' privacy going forward.
"Harvard College is responsible for protecting the confidential and highly sensitive personal information that prospective students—none of whom asked to be involved in this dispute—entrust to us every year in their applications," she wrote. "We are committed to safeguarding their privacy while also ensuring that the public has the access that it is entitled to under the law."
Dane also pointed to a previous statement she issued last week asserting Harvard does not discriminate against "applicants from any group" in its admissions process; something Harvard has repeatedly and publicly insisted across the past few months. Dane wrote the College will continue to "vigorously defend" the right of Harvard and other universities to seek the "educational benefits" that stem from "a class that is diverse on multiple dimensions."
Seth P. Waxman ’73, a partner at the law firm representing Harvard, previously wrote a letter to the Justice Department in December noting the University does not believe the department should have access to applicants' personal information.
“Harvard is hard-pressed to identify a reason why the Department would need, for example, the names, personally identifying information, and other highly sensitive personal information of its applicants and students,” Waxman wrote.
Justice Department spokesperson Devin M. O’Malley declined to comment on the filing Saturday.
The Justice Department is not the only outside party that has expressed interest in making Harvard’s admissions data public. At least four free press advocacy groups filed briefings requesting the public release of the data Friday.
The court has set a tentative timeline for the progression of the litigation, with Jan. 2, 2019, as a possible date for a trial, if the case is not decided by summary judgement—that is, without a trial.
Harvard and Students for Fair Admissions will meet on April 10 at the U.S. District Court in Boston to discuss the handling of confidential materials in the case and discuss a timeline for future proceedings in the trial.
—Staff writer Delano R. Franklin can be reached at firstname.lastname@example.org. Follow him on Twitter @delanofranklin_
—Staff writer Samuel W. Zwickel can be reached at email@example.com. Follow him on Twitter @samuel_zwickel