LAW & EDUCATION
Confidentiality of Review of College Applications
By Arthur Katz, JD
Should a college be able to keep confidential its process of reviewing applications for admission?
This is an issue which has arisen as a by-product in a lawsuit instituted by the group ‘Students for Fair Admissions’ (the “SFA”) against Harvard College (the “SFA/Harvard Litigation”).
The SFA represents a number of Asian-Americans who were denied admission to Harvard and contends that, because of the disproportionate large number of Asian-Americans applying to Harvard, the College, in effect, has applied quotas for Asian-Americans (similar to the pernicious un-official quotas which had been established for Jewish applicants and applicants having Jewish-sounding names in the first half of the 1900s). The SFA contends that these quotas have put Asian-Americans at a disadvantage when compared to other applicants having identical, and even lower, qualifications and, as a result, has set a higher admissions standard for Asian-Americans and forced them to compete against each other.
The principals of the SFA also were instigators in the Fisher v University of Texas litigation, which I discussed in two previous columns [Education Update Sep/Oct 2013 and Jan/Feb 2016] and resulted in the U.S. Supreme Court permitting a holistic approach to college admissions in certain circumstances provided that the principals of strict scrutiny were applied.
Although the SFA/Harvard litigation was commenced in 2014, the parties agreed to put it ‘on hold’ during the pendency of the Fisher litigation in the hope that the decision of the Supreme Court would be determinative. As a result, the SFA/Harvard Litigation still is in its early stages in the U.S. District Court for the District of Massachusetts. Discovery has commenced and the SFA has asked for eight years of admissions data, which Harvard contended is excessive and unnecessary. The District Court then ordered Harvard to release six years of such data (for the period 2009 through 2014). The SFA thereafter sent a letter to the court saying that the documents that it received were so compelling that there was no need for a trial on the issue and indicated that the SFA would move for a summary judgment based solely upon the submitted documents. Harvard countered with a request that the court keep its submitted documents ‘under seal’.
This request drew the ire of the New England First Amendment Coalition, which includes the Massachusetts Newspaper Publishers Association (among other organizations), who in early April submitted a letter to the court arguing that the judicial records shedding light on the instant dispute “is of exceptional public importance and community interest” and should remain open to the public, and pointed out that “the presumptively paramount right of the public to know the content of judicial records in civil cases may be overcome only for the most compelling reasons.”
Then, the U.S. Justice Department weighed in and submitted a ‘Notice of Interest’ to the District Court urging the court NOT to seal the submitted information since Harvard had not shown a “most compelling reason” to overcome the normal presumption of access. While the Justice Department acknowledged that “there is a weighty interest in protecting the private identities of students and applicants” (a principle that both parties to the SFA/Harvard litigation agree on), “neither that interest nor any of Harvard’s other generalized arguments warrant adoption of Harvard’s proposal to file all summary judgment documents under seal. In fact, Harvard’s proposal contravenes the governing law.”
Both the Department of Justice and the Publishers Association contend that the public would benefit from a better understanding of the currently hidden admission process used by Harvard, and that such information could, and therefore should, be revealed without needing to identify particular students or applicants.
However, the battle is not yet over, as Harvard further responded, first by stating that “we are committed to safeguarding [applicants’] privacy while also ensuring that the public has access that is entitled to under law” and then by criticizing the Justice Department for its intervention (which Harvard called “perplexing”) and contending that redacting all private information would be burdensome, is unnecessary and would reveal Harvard’s intellectual thought process which, in effect, should be treated as a ‘trade secret’ and be afforded the appropriate protection.
Since then, the District Court has determined that two sets of Harvard’s previously confidential documents should be submitted to the court – an un-redacted set which initially will be filed under ‘seal’ and the same documents redacted to remove applicants’ identification, which documents eventually are expected to become public.
Once these documents become public, a significant portion of the applicant reviewing process will at last be revealed, permitting future applicants to analyze and finally start to comprehend how a highly-selective college makes its admission decisions. #
Arthur Katz, a corporate attorney, is a member of the New York City law firm Otterbourg, Steindler, Houston & Rosen, P.C.
