Unexpectedly, the unabashed leftist New Yorker published an article exposing how a federal official and a Harvard dean of admissions shared a joke lovingly poking fun at how Harvard discriminates against Asian-American applicants, and how a federal judge sought to hide the joke from view during a lawsuit that Students for Fair Admissions (SFA) filed charging that Harvard’s admission policies are illegal.

In 2014, the SFA sued Harvard, alleging that the college’s admissions process was effectively a quota system suppressing the number of Asian-Americans admitted. Under a purely merit-based admissions policy, Harvard would have become predominantly Asian, with a smaller number of white students, and an even smaller number of blacks and other minorities.

Judge Allison Burroughs, an Obama appointee, tried the case without a jury. In 2019, Judge Burroughs ruled in Harvard’s favor, holding that its actions comported with existing Supreme Court rulings regarding race-based affirmative action. In 2020, a federal appellate court affirmed the rule.

The United States Supreme Court accepted the case, and something very interesting happened: the Court demanded that the federal trial court produce all the records in the case. This included evidence that the court had sealed from public view. And that’s where Jeannie Suk Gersen, a Harvard Law Professor, picks up the story in an article published (most surprisingly) in The New Yorker.

Image: College graduates by freepik.

Gersen attended the trial, during which evidence showed that, “[o]n the whole, Harvard gave Asian American applicants higher academic and extracurricular ratings but lower ‘personal ratings’ than they gave white applicants.” While the SFA contended that this showed a racial quota system, Judge Burroughs held that these low personal ratings were “not the result of intentional discrimination.” She did this even though evidence showed that “Harvard used an SAT score cutoff of 1310 for white students, 1350 for Asian American females, and 1380 for Asian American males.”

When it came to evidence, things got a little weird. In a jury trial, the judge will often summon the lawyers to confer with her, either in whispers at the bench or in the judge’s private office, where they can argue for and against admitting specific evidence. Conducting these conversations in secret ensures that the jury is not tainted by learning about evidence that the judge ultimately deems inadmissible.

When there’s no jury, these private conferences are unnecessary. The judge hears all the evidence and then (theoretically) makes a judgment based on admissible evidence. Thus, the evidentiary discussions occur in open court.

However, Gersen describes something unusual in Burrough’s court: “During the trial, the judge often had S.F.F.A.’s and Harvard’s lawyers approach the bench for lengthy sidebar discussions, which others in the courtroom couldn’t hear.”

After the trial, Harvard objected to opening the trial records regarding these secretive conversations and the underlying evidence, and the court agreed. Remarkably, Burroughs pointed to the jury to justify the secrecy:

She said, “There are a lot of things in those sidebars that were really just meant to be out of the hearing of the jury, not meant to be out of the hearing of the entire world for all time.” Strange, since there was, in fact, no jury at that trial.

The evidence she was most desperate to protect was a “joke” that, in 2012, Thomas Hibino, a Department of Education official in the Office of Civil Rights, emailed to William Fitzsimmons, the Harvard dean of admissions, who had held that position for roughly 25 years. Hibino had earlier overseen the federal government’s investigation into Harvard’s Asian admission policies:

On November 30, 2012, amid a friendly back-and-forth about lunch plans, Hibino e-mailed Fitzsimmons an attachment that he described as “really hilarious if I do say so myself!” Hibino explained, “I did it for the amusement of our team, and of course, you guys”—presumably Harvard admissions officers—“are the only others who can appreciate the humor.” The joke memo had been written on Harvard admissions-office stationery, during the earlier investigation. It was purportedly from an associate director of admissions and parodied the admissions officer downplaying an Asian American applicant’s achievements. The memo denigrated “José,” who was “the sole support of his family of 14 since his father, a Filipino farm worker, got run over by a tractor,” saying, “It can’t be that difficult on his part-time job as a senior cancer researcher.” It continued, “While he was California’s Class AAA Player of the Year,” with an offer from the Rams, “we just don’t need a 132 pound defensive lineman,” apparently referring to a slight Asian male physique. “I have to discount the Nobel Peace Prize he received. . . . After all, they gave one to Martin Luther King, too. No doubt just another example of giving preference to minorities.” The memo dismissed the fictional applicant as “just another AA CJer.” That was Harvard admissions shorthand for an Asian American applicant who intends to study biology and become a doctor, according to the trial transcript.

Fitzsimmons initially believed that the joke came, not from Hibino, but from Harvard itself. It was his response that the SFA’s attorney wanted to investigate and that Burroughs foreclosed on grounds of prejudice (to the non-existent jury) and irrelevant. Gersen believes it was very relevant for showing Harvard’s attitudes toward Asian admissions.

I’ve summarized the article as best as I can, but there’s so much more. We already knew that Harvard discriminated against Asians and whites to achieve what it believes is the perfect racial mixture, irrespective of merit. However, the letter also reveals the racial rot at the heart of our government, whether in the Department of Education (under the aegis of which American education has steadily declined) or our federal court system, wherever activist judges are located.