In Clashing Briefs, Harvard and SFFA Duel Over Confidential Status of Admissions Data

The University and anti-affirmative action group Students for Fair Admissions filed clashing briefs Friday outlining opposing arguments on whether the College’s admissions data should become public as part of an ongoing lawsuit against Harvard.

In its brief, Harvard argued sensitive documents should “be filed provisionally under seal,” asserting the documents must remain confidential to protect applicants’ privacy and to safeguard the details of its admissions process. Students for Fair Admissions, though, asserted documents should be publicly filed.

The group cited strong public interest and a “strong presumption of public access” in the case, claiming both considerations outweigh Harvard’s stated need for privacy.

Both parties submitted the Friday briefings as part of a lawsuit filed by Students for Fair Admissions in 2014. The suit alleges Harvard discriminates against Asian-American applicants in its admissions process; the College has repeatedly denied any such discrimination.

The Friday filings do not mark the first time Harvard and Students for Fair Admissions have gone to battle over College admissions data. Harvard agreed to provide the group with redacted admissions documents in Dec. 2017. Though the University redacted “directly identifying information,” the documents still contain data points Harvard officials fear could be used to identify students—like awards earned during high school or hometowns.

“Such information can easily be used to locate and identify a student through a simple internet search,” Harvard’s Friday briefing reads.

Harvard lawyers also wrote in the filing that publicly releasing “highly proprietary” information like application data, deposition testimonies, and internal communications could compromise the College’s admissions system.

“Publicizing this information would cause applicants and college consultants to seek to orient their applications to what they perceive Harvard wants, to the detriment of the authenticity of the information Harvard receives and its ability to make its best judgments,” the briefing reads.

College spokesperson Rachael Dane wrote in an emailed statement that Harvard considers many factors when deciding whether or not a student is admitted.

“Many highly academically qualified individuals apply to Harvard College,” Dane wrote. “To deliver on our educational mission, our admissions practices consider the whole person, their capacity not only for academic excellence, but also their ability to contribute to and learn from people profoundly different from themselves.”

The Friday briefing noted that, while any admissions-related documents Harvard releases may not necessarily render individual students identifiable, it would be necessary to individually evaluate every single document to determine whether this is the case. Therefore, University lawyers wrote, Harvard opposes publicly filing the documents in bulk.

The lawyers cited a number of cases in which confidential documents were filed under seal. Students for Fair Admissions, on the other hand, questioned whether this practice is permissible.

“Other than individual student identities, the record that the court will analyze in Students for Fair Admissions v. Harvard should be made available to the American public,” Students for Fair Admissions President Edward Blum wrote in an emailed statement Monday. “Public disclosure and complete transparency of court proceedings is the bedrock of our judicial system.”

In its briefing, lawyers for the anti-affirmative action group wrote Harvard has not proven it is necessary to seal the documents for either privacy or proprietary reasons. The briefing further argued the public has a strong interest in civil rights litigation, especially as it relates to the consideration of race in college admissions.

“It would be impossible for the public to understand whether Harvard’s admissions system—especially the pivotal internal mechanisms used to sort and advance applicants through the process—is being manipulated if they are prevented from knowing how the system is supposed to work in the first place,” the group’s briefing reads.

Andrew D. Bradt ’02, an assistant law professor at University of California, Berkeley, said it would be atypical if the court decides to weigh Students for Fair Admissions’ claim that the public has significant interest in the case over Harvard’s privacy concerns.

“It's unusual for the plaintiff's view of the groundbreaking nature of their case to overwhelm a defendant's legitimate interest in confidentiality,” Bradt said.

In their brief, lawyers for the advocacy group also argued Harvard’s admissions procedures do not constitute a “trade secret” and therefore are not confidential.

The lawyers cited several publications—including the New York Times and The Crimson—that previously published articles touching on the details of the admissions process. The lawyers also cited a number of previous cases in which courts rejected the “blanket sealing” of documents.

Bradt said the judge has essentially total power to decide whether Harvard or Students for Fair Admissions—or neither—win the day regarding the confidentiality of admissions documents. Bradt added whatever the judge concludes will likely hold throughout future litigation.

“This is an area where the judge has enormous discretion, and the rules give the judge a lot of leeway to balance the interests of the parties and the public interest. Whatever the judge ultimately decides is probably unlikely to be reversed by an appellate court,” Bradt said.

The Friday briefs come in the wake of a March 14 order from Judge Allison D. Burroughs requiring Harvard and Students for Fair Admissions to “meet and confer regarding the treatment of confidential materials to narrow the areas of dispute.” Burroughs scheduled a follow-up hearing on the subject slated to be held April 10 at the U.S. District Court in Boston.

The judge’s order also laid out a tentative timeline for the overall lawsuit, setting Jan. 2 as the potential start date for a four-week trial. In its briefing, Harvard raised several concerns with the proposed timeline, in particular arguing the schedule means College administrators will be forced to deal with the lawsuit during admissions season, when officials review thousands of applications.

Both parties will discuss the timeline at the April 10 hearing.

Bradt said that, as the lawsuit moves forward, he thinks it is possible more of the material Harvard hopes to protect will become public—no matter what the judge decides.

“If there would ultimately be a trial, then it's inevitable that some of the information that the University wants to keep confidential would be aired,” Bradt said. “That might not mean the particular circumstances of individual applicants, but the longer the litigation goes, certainly the more likely it is that more information will come to light.”

As Harvard deals with the Student for Fair Admissions lawsuit in coming months, it also faces an ongoing probe by the Department of Justice into the College’s admissions practices.

—Staff writer Delano R. Franklin can be reached at delano.franklin@thecrimson.com. Follow him on Twitter @delanofranklin_