A Harvard Law School professor is asking the federal judge who presided over the high-profile 2018 Harvard admissions trial to release currently-sealed transcripts of courtroom discussions from the proceedings.
In a court filing last month, professor Jeannie Suk Gersen, a constitutional law scholar, asked Massachusetts District Court Judge Allison D. Burroughs to unseal transcripts of sidebar discussions — private conversations between lawyers and the judge — from the trial.
Burroughs ruled in favor of Harvard following the three-week trial, rejecting arguments brought by the anti-affirmative action group Students for Fair Admissions that the College’s race-conscious admissions program violates federal law by discriminating against Asian American applicants.
A federal appeals court upheld Burroughs’s decision in 2020 before SFFA appealed the case to the Supreme Court. Justices heard oral arguments in October, and a decision is expected in the spring or summer of 2023.
Gersen wrote in a Nov. 11 letter that she wants the documents unsealed “for purposes of knowledge, transparency, and reporting about a case of great public importance.”
“There was no jury, it was a bench trial, so the existence of so many sidebars that the public couldn’t have any access to — it’s definitely something that raises an eyebrow,” Gersen said in an interview Wednesday. “I wondered why that had occurred, and it wasn’t really clear from looking at the record as to why every single sidebar had been sealed.”
Gersen said releasing the sidebars from the trial is unlikely to have an impact on any court ruling on the case, given that it has been four years since the trial took place.
Harvard’s lawyer in the case, Seth P. Waxman ’73, wrote in a Nov. 15 letter to Burroughs that the University opposes Gersen’s motion since the sidebar discussions “contain confidential information, including information designated by both Harvard and SFFA under the Protective Order entered in this case,” as well as “other personal and confidential information that should remain sealed.”
In a letter, SFFA rejected Harvard’s argument that the sidebars should stay under full seal, but said information about specific applicants should remain redacted.
“The examples Harvard relies upon do not contain ‘confidential’ information. One example involves information that Harvard itself asserted was so publicly available at the time that anyone casually investigating the subject would know,” SFFA lawyer Patrick Strawbridge wrote. “Because any sealing must be narrowly tailored, the handful of examples Harvard cites cannot justify sealing every sidebar discussion.”
The New York Times and The New Yorker magazine both filed letters in support of Gersen’s request to unseal the sidebars. (Gersen is a New Yorker contributor who has reported on the affirmative action case for the outlet since 2017.)
Burroughs will hold a private hearing on Dec. 9 to discuss the materials under seal.
Gersen said she expects the judge to rule in favor of her request based on a Nov. 21 court hearing on the issue.
“I think that was clear at the hearing — that there would be some unsealing, but that [Burroughs] understood that the parties may disagree about some portions of the sidebar transcript,” Gersen said.
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