Students for Fair Admissions, Inc. v. President and Fellows of Harvard College et al

Filing 121

Letter/request (non-motion) from Harvard In Response to Letter/request (non-motion) from SFFA . (Ellsworth, Felicia)

January 27, 2016
By ECF

Felicia H. Ellsworth
[phone] (t)
[phone] (f)
[e-mail]

Honorable Allison D. Burroughs
U.S. District Court, District of Massachusetts
John Joseph Moakley U.S. Courthouse
1 Courthouse Way
Boston, MA 02210
Re: Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (Harvard
Corporation), No. 1:14-cv-14176
Dear Judge Burroughs:
This letter is submitted on behalf of Defendant President and Fellows of Harvard College
(“Harvard”) in response to the letter filed earlier today by Plaintiff Students for Fair Admissions,
Inc. (“SFFA”) (ECF No. 118).
As an initial matter, SFFA’s submission is procedurally improper. Under the guise of a “letter,”
SFFA has filed what is plainly a motion: it has requested a court order, in writing, stating
grounds, and specifying relief. See Fed. R. Civ. P. 7(b); Rogers v. Ausdal Fin. Partners, Inc.,
2015 WL 5972423 (D. Mass. Oct. 14, 2015) (court “has the power to treat” a filing “as a motion
if, despite its form, its substance is that of a motion”). This is not a matter of form over
substance. SFFA has every right to file a motion, but by the same token, Harvard has every right
to its full time within which to respond. Here, despite the scheduling of the conference over
three weeks ago, SFFA has waited until one day before the conference to file its “letter” in an
obvious attempt to gain a tactical advantage. The Court should reject such gamesmanship, and
afford Harvard the 14-day period authorized under Local Rule 7.1 to respond. In the meantime,
Harvard addresses some of the more extraordinary claims in SFFA’s submission, in an effort to
provide the Court with sufficient information to make productive use of tomorrow’s conference.
I.

Harvard’s Document and Database Productions

In the three months since this Court granted a partial stay (ECF No. 110), Harvard has complied
with the Court’s Order and has provided SFFA with extensive discovery. Among other
materials, Harvard has produced training binders distributed to admissions officers, reading
procedures setting forth the manner in which admissions officers evaluate applicant files,
instructions used in the evaluation of applications, casebooks and discussion guides regarding the
evaluation of applications, and interviewer handbooks that provide guidance to Harvard’s alumni
volunteers before they interview candidates for admission.

Honorable Allison D. Burroughs
January 27, 2016
Page 2

Harvard has also produced voluminous electronic admissions data—information contained in
over 900 fields for more than 70,000 applicants. The produced information reveals the race and
ethnicity, standardized test scores, high school grade point averages, ratings assigned by
Harvard’s admissions officers, ratings assigned by alumni interviewers, and much more, for each
applicant, and is more than sufficient to achieve this Court’s goal of enabling SFFA to begin to
undertake its statistical analysis.
This Court recognized the important privacy interests at stake here not only in refusing to order
Harvard to produce applicant files, but in urging in its Order that the parties “resolve any
disputes pertaining to potential privacy issues.” In accordance with those instructions, the parties
have had a lengthy dialogue, through letters, emails, and phone calls, relating to specific database
fields that either play no role in the admissions decision, or for which, due to the intrusiveness of
production on the privacy of applicants, students, and other third parties, such production is
inappropriate, at least until the Supreme Court has clarified the governing law. Completely
absent from SFFA’s submission is the fact that the fields in dispute represent a fraction of the
entire database.
In the face of these facts, SFFA’s accusation that Harvard is “avoiding compliance with the
Court’s orders in an effort to obstruct and delay” this litigation is completely unfounded. Despite
the fact that this litigation has been stayed for the past three months, Harvard has produced a
wealth of qualitative and quantitative information that relates directly to the core of SFFA’s
claims and Harvard’s defenses. SFFA, in contrast, has not been subjected to any discovery nor
has it produced a single page.
II.

The Scope Of Proceedings Pending The Resolution Of Fisher II

Because Harvard has not had a full opportunity to respond to what is effectively a motion to
compel filed by SFFA on the eve of the conference, Harvard respectfully submits that the
upcoming status conference should focus on the scope of these proceedings pending the Supreme
Court’s decision in Fisher II, a decision that is expected to issue in less than five months. The
parties have fully explicated their positions on this issue (see ECF No. 111 (Harvard’s proposal);
ECF No. 112 (SFFA’s proposal)), and Harvard is prepared to address these proposals at
tomorrow’s status conference.
The appropriateness of a further stay in light of the production Harvard has already made is even
more apparent today. The Supreme Court heard oral argument in Fisher II on December 9,
2015, and is expected to issue a decision within the next five months. It makes little sense for
the parties to ramp up an extensive, expensive, and intrusive document review and production
effort, burden third parties with subpoenas and depositions, and compromise sensitive personal

Honorable Allison D. Burroughs
January 27, 2016
Page 3

information of applicants and students, within mere months of a decision that may meaningfully
alter the scope of relevant discovery in this litigation.
III.

Harvard’s Confidentiality Designations Are Appropriate, And The Protective
Order Should Not Be Modified

Harvard strongly disagrees with SFFA’s attempt to rewrite the terms of the Protective Order,
which the parties negotiated extensively. For the reasons noted above, Harvard will not in this
submission respond to SFFA’s arguments in an exhaustive manner, but it bears emphasis that the
fact that much of the information SFFA is seeking in discovery falls within the agreed-upon
definition of Highly Confidential information should come as no surprise—documents and
information relating to how Harvard conducts its undergraduate admissions process is by its
nature extremely sensitive.
Similarly, SFFA’s request that the Court alter the Protective Order to give its President, Edward
Blum, access to information that Harvard has designated as Highly Confidential, is without
merit. As Harvard has already advised SFFA in discussions over this issue—and as SFFA
neglects to mention—the Protective Order already permits counsel to “advis[e] their clients with
respect to this Action based in whole or in part upon Protected Materials, provided that counsel
does not disclose the Protected Materials themselves, the content of those Protected Materials, or
the fact of those particular Protected Materials’ existence except as provided in this Order.” ECF
No. 55, ¶ 5(b). Nothing in SFFA’s letter explains why that common-sense provision, negotiated
equally by the parties, has proven inadequate.
IV.

Any Further Data Production Should Await Fisher II

As noted above, Harvard has produced voluminous database information for more than 70,000
applicants to the classes of 2018 and 2019. The produced fields contain an extraordinary array
of information. They include, for example, applicants’ demographic characteristics, including
race or ethnicity; high-school GPA and standardized test scores; class rank; intended academic
concentration; ratings assigned by Admissions Office readers and alumni interviewers; nonidentifying information regarding applicants’ extracurricular activities; and information about
applicants’ parents. At SFFA’s request, Harvard identified the basis for withholding each of the
fields not produced. 1

1

SFFA’s statement that it took “repeated requests” for Harvard to “eventually disclose[] that it was
withholding” database fields is a canard. Harvard produced information from the database on November 6, 2015,
and concurrently produced a complete list of fields in the database and a list of all fields that were produced. It was
a trivial matter for SFFA to compare the two lists, and when SFFA complained about the difficulty of doing so,
Harvard provided a list of withheld fields in SFFA’s preferred format.

Honorable Allison D. Burroughs
January 27, 2016
Page 4

SFFA now seeks the production of an additional 296 database fields. Harvard is prepared to
respond in full to a Motion to Compel should SFFA choose to file one. For present purposes,
however, the privacy intrusion of producing the information in this subset of highly sensitive
fields is not warranted while the governing law remains unsettled. Once the Supreme Court has
clarified in Fisher II what if any of the information in these fields will actually be relevant to the
adjudication of this case, Harvard believes it would be entirely appropriate to revisit whether any
of the additional fields should be produced.
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Harvard looks forward to addressing these issues at tomorrow’s conference and to submitting a
further response to SFFA’s letter (if the Court construes it as a motion) or to any motion SFFA
files in a procedurally proper manner.
Sincerely,
/s/ Felicia H. Ellsworth

cc: Counsel of record (via ECF)