FOIAengine Explores a Courtroom Sideshow in SFFA v. Harvard
Amid the sprawling, years-long litigation in Students for Fair Admissions v. Harvard that ultimately reshaped the legal landscape for affirmative action in college admissions, a little-noticed courtroom sideshow was quietly playing out two years ago.
The dispute seemed trivial: whether a tasteless joke – emailed from a federal civil-rights official to the Harvard admissions dean and introduced as evidence at the 2019 trial – should be made public. The trial itself had been open, after all, and four years had passed since the verdict. Didn’t the public’s right to know outweigh Harvard’s fear of embarrassment? It seemed an easy call – until the presiding federal judge decided otherwise, ruling that the joke should remain under wraps.
In the wake of the landmark case, this courtroom scrap over a tasteless joke raised bigger questions about secrecy. We got interested because the federal Freedom of Information Act also came into play. Six years before the trial-secrecy issue broke into the open, a FOIA request from the plaintiff to the Department of Education signaled an early warning of Harvard’s trouble to come. Once the existence of the embarrassing email to Harvard became known, its disclosure under FOIA became an issue all over again. Spoiler alert: Neither the judge in the case nor the Education Department comes off well in this example of forensic FOIA.
By the time the judge released most (but not all) of the joke email, lawyers for the Reporters Committee for Freedom of the Press, the New York Times, and the New Yorker had jumped into the courtroom fray. All three media organizations were supporting the Harvard Law School professor who kicked up the furor over trial secrecy in the first place, and who was representing herself in court – in direct opposition to her employer, Harvard, which had its own illustrious lawyer (former Clinton solicitor general and permanent honorary FBI Special Agent Seth Waxman, Harvard ’73) arguing for secrecy.
All because of a tasteless emailed memo that poked fun at Harvard’s Asian applicants and suggested that Harvard had a casual tolerance for anti-Asian bias. (You can read more about the 2012 memo here.)
What made the email especially tantalizing as evidence in SFFA v. Harvard were the identities of the sender – a Department of Education civil rights regulator – and the recipient, Harvard’s dean of admissions.
For SFFA, the email was a potential smoking gun, but the plaintiffs first had to convince the trial judge to allow it into evidence. If the judge did so, SFFA would be able to use the memo during the 2018 trial to drive home its assertion that Harvard discriminated against Asian applicants. It went to the heart of SFFA’s case.
But Harvard vehemently opposed the email’s introduction as evidence. The federal judge in the case, Obama appointee Allison Burroughs, ultimately sided with Harvard and ruled that the memo was inadmissible. Burroughs kept the memo and her related sidebar conversations with the lawyers sealed.
When the case finally arrived at the Supreme Court, the justices had to make a special request to see the material she’d excluded – subject matter that Burroughs later dismissed as an “inappropriate, anti-Asian, stereotypical, poor attempt at a joke.”
We’re writing about this now because Students for Fair Admissions (SFFA for short), the organization whose lawsuit against Harvard led to the Supreme Court’s 2023 decision eliminating race as a factor in college admissions, is back in the news. In the wake of the organization’s successful lawsuit against Harvard, the Trump Administration started going after others in the Ivy League, announcing pattern-setting settlements with Brown University and Columbia University over what the White House called “violations of federal civil rights laws and to restore fairness, merit, and safety in higher education.” Columbia agreed to pay a $200 million penalty over multiple years. Brown agreed to pay $50 million, also in annual installments. The settlements presage more to come.
Amid publicity about the monetary penalties, a key provision buried in the agreements was mostly overlooked. Going forward, the Trump Administration will gain access to anonymized information about the standardized test scores and grade point averages of all applicants, including information about their race – a provision that potentially sets up Columbia, Brown, and other universities for new discrimination charges in the future.
The settlements emanating from SFFA v. Harvard are all the more noteworthy given that the non-profit group that set up Harvard for its fall, Students for Fair Admissions, is miniscule by comparison. SFFA pursued its litigation against Harvard for almost a decade, and lost every step of the way before finally succeeding at the Supreme Court. SFFA appears to have no paid staff and operates on a shoestring. The organization’s most recent report to the IRS showed 2023 contributions of $223,641.
We plugged Students for Fair Admissions into PoliScio Analytics’ competitive-intelligence database FOIAengine to learn more. We wanted to see whether the organization has been an active FOIA requester. This got interesting.
The first hint that SFFA was looking for a smoking-gun memo came in a FOIA request to the Department of Education two years before the SFFA v. Harvard trial began. J. Michael Connolly, one of SFFA’s lawyers on the case, filed a request on June 19, 2017 with the Education Department for “all emails between William Fitzsimmons of Harvard University and Thomas Hibino of the U.S. Department of Education Office for Civil Rights. This request includes all emails, regardless of whether they have been designated by the submitter as protected from disclosure under the exemptions of the Freedom of Information Act.”
In naming Hibino and Fitzsimmons, SFFA attorney Connolly revealed that he was on to something. Hibino and Fitzsimmons were, literally, the regulator and the regulated. Hibino’s mandate at DOE included investigating and enforcing federal civil rights laws in education, including discrimination complaints against universities. Fitzsimmons was (and still is) Harvard’s dean of admissions and financial aid, whose office’s policies and practices could be subject to Hibino’s investigation.
The Education Department’s press office didn’t respond to our questions. But a subsequent request, found in FOIAengine, indicates that the Department of Education produced some relevant records to Connally in March 2018, and later produced additional records in October 2018 in response to Connolly’s June 2018 administrative appeal. Connolly’s FOIA request became the lodestar for others later on.
By the time of the SFFA v. Harvard trial, it was clear that the lawyers for SFFA knew about the joke memo. They tried, unsuccessfully, to get the document introduced during sidebars with the judge. All this happened out of earshot of media covering the bench trial.
As SFFA v. Harvard made its way on appeal and four more years went by, a Harvard Law School professor named Jeannie Suk Gersen started asking questions about those sealed sidebars. Gersen had attended the trial. Now, she was curious about a request from the Supreme Court.
The justices wanted to review a portion of the trial transcript that hadn’t been transmitted: the sealed sidebars. Judge Burroughs responded by sending the justices an encrypted, password-protected thumb drive containing the requested material. Burroughs plainly did not want the sidebars and related documents to get out.
Gersen sent a letter to the judge. “Given that it has been four years since the trial,” she wrote, “and assuming the sidebars do not contain information that is properly designated as confidential, I am respectfully requesting that you unseal the transcripts of sidebars, so that the entire trial transcript may now be available to the public, for purposes of knowledge, transparency, and reporting about a case of great public importance.” Four days after sending the letter, Gersen filed a notice of appearance in the case. She wanted to be heard, in front of the judge. (You can track the entire chronology of events here.)
Gersen had an interesting role to play in this, because she was, at once, a Harvard faculty member at odds with her employer; a lawyer; and a contributing writer to the New Yorker making a journalist’s case for openness.
A month later, Gersen went further. On December 23, 2022, she filed her own FOIA request with the Education Department, referencing Connolly’s earlier request. Gersen wanted “all documents produced in response to FOIA request 17-02007-F from Michael J. Conolly of Students for Fair Admissions, Inc. on 06/19/2017 [and] all emails between William Fitzsimmons of Harvard University and Thomas Hibino of the U.S. Department of Education, Office of Civil Rights.”
A similar request from Michael Stratford of Politico soon followed. He too, cited Connolly’s original 2017 request. “My understanding is that the Department of Education produced these records to SFFA in March 2018 and then subsequently produced additional records to SFFA in October 2018 in response to SFFA’s June 2018 administrative appeal.”
Gersen didn’t respond to questions sent to her Harvard email address. But it’s clear she, too, eventually obtained enough of the joke memo to go public with it in a New Yorker story published on March 23, 2023. Her subhead: “A federal official wrote a parody of Harvard’s attitude toward Asian Americans and shared it with the dean of admissions. Why did a judge try to hide that from the public?”
Gersen’s story quoted at length from the memo, and also from a transcript of the hearing where she confronted the judge, who called Gersen’s efforts to force disclosure “greedy.”
In her New Yorker article, Gersen called the whole episode “strange.” A month after Gersen’s article came out, Burroughs unsealed most of the sidebar material. But she made an exception, among other things, for the “inflammatory quotations from a memorandum, on purloined Harvard letterhead.” In other words, the joke memo.
Four days after Gersen’s article appeared, a blogger named Dave Pifke followed up. He asked the Education Department for “a copy of the ‘joke memo’ . . . created by Mr. Hibino ‘for the amusement of our team, and of course, you guys’ (referring to the Harvard admissions staff) on fake Harvard stationery.”
Pifke told us the department never provided any documents in response to his request. Instead, he received an unsigned letter from an unnamed employee at the department. “The scope of your FOIA requests requires the Department to conduct a vast search across multiple program offices,” the letter said, “which we anticipate will result in a large amount of responsive records.”
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John A. Jenkins, co-creator of FOIAengine, is a Washington journalist and publisher whose work has appeared in The New York Times Magazine, GQ, and elsewhere. He is a four-time recipient of the American Bar Association’s Gavel Award Certificate of Merit for his legal reporting and analysis. His most recent book is The Partisan: The Life of William Rehnquist. His next book, Summer of ’71, about events before Watergate, will be published in May 2026. Jenkins founded Law Street Media in 2013. Prior to that, he was President of CQ Press, the textbook and reference publishing enterprise of Congressional Quarterly. FOIAengine is a product of PoliScio Analytics (PoliScio.com), a new venture specializing in U.S. political and governmental research, co-founded by Jenkins and Washington lawyer Randy Miller. Learn more about FOIAengine here. To review FOIA requests mentioned in this article, subscribe to FOIAengine.
Write to John A. Jenkins at JAJ@PoliScio.com.
