If the Supreme Court finds that Harvard’s consideration of race in its admissions policy is an offense to the Constitution, to which court will the justices be able to turn to give its ruling effect? That question has come into focus as it appears as if remand could require recusal on the part of Judge Allison Burroughs, in whose courtroom the case was first heard.
That reality surfaces after a bombshell report from a professor at Harvard Law School, Jeannie Suk Gersen. In the New Yorker, Ms. Gersen discloses that what Judge Burroughs called an “inappropriate, anti-Asian, stereotypical, poor attempt at a joke” emerged as potential evidence at trial, only to have been kept under seal by the very judge who was tasked with determining whether Harvard discriminated against Asian-Americans applicants.
The case, Students for Fair Admission v. Harvard, heard in 2018, turns on whether Harvard intentionally discriminated against Asian-American applicants, who received lower “personal ratings” than their white counterparts. Judge Burroughs found for Harvard, ruling that the disparity was “not the result of intentional discrimination” but rather “underlying differences.”
After the case reached the high court, Ms. Suk Gersen requested that private “sidebar” conversations between Judge Burroughs and the lawyers be released “for purposes of knowledge, transparency, and reporting about a case of great public importance.” The press supported her request.
Harvard has argued for those transcripts to remain under seal, maintaining that they “contain confidential information,” including the “secret sauce” it uses to determine to whom it offers admission. The school argued that “competitors might try to utilize” that information to “their advantage and to Harvard’s detriment.” Judge Burroughs decided to release some, not all, of those conversations.
It turns out, though, that Judge Burroughs decided to keep under…
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