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

Filing 173

Transcript of Status Conference held on July 20, 2016, before Judge Allison D. Burroughs. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Carol Scott at [e-mail] Redaction Request due 8/25/2016. Redacted Transcript Deadline set for 9/5/2016. Release of Transcript Restriction set for 11/2/2016. (Scalfani, Deborah)

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UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

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* * * * * * * * * * * * * * *
STUDENTS FOR FAIR
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ADMISSIONS, INC.,
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Plaintiff,
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vs.
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PRESIDENT AND FELLOWS OF
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HARVARD COLLEGE, et al,
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Defendants.
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CIVIL ACTION
No. 14-14176-ADB

BEFORE THE HONORABLE ALLISON D. BURROUGHS
UNITED STATES DISTRICT JUDGE
STATUS CONFERENCE
A P P E A R A N C E S

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CONSOVOY McCARTHY PARK PLLC
Ten Post Office Square, 8th Floor
Boston, Massachusetts 02109
for the plaintiff
By: Patrick Strawbridge, Esq.

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CONSOVOY McCARTHY PARK PLLC
3 Columbus Circle, 15th Floor
New York, New York 10024
for the plaintiff
By: Michael H. Park, Esq.

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Courtroom No. 17
John J. Moakley Courthouse
1 Courthouse Way
Boston, Massachusetts 02210
July 20, 2016
3:15 p.m.

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APPEARANCES CONTINUED

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CONSOVOY McCARTHY PARK PLLC
3033 Wilson Boulevard, Suite 700
Arlington, Virginia 22201
for the plaintiff
By: William S. Consovoy, Esq.

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BURNS & LEVINSON LLP
One Citizens Plaza, Suite 1100
Providence, Rhode Island 02903
for the plaintiff
By: Paul M. Sanford, Esq.

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WILMER CUTLER PICKERING HALE and DORR LLP (Bos)
60 State Street
Boston, Massachusetts 02109
for the defendants
By: Felicia H. Ellsworth, Esq.
William F. Lee, Esq.

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WILMER CUTLER PICKERING HALE and DORR LLP
1875 Pennsylvania Avenue, NW
Washington, D.C. 20006
for the defendant
By: Seth P. Waxman, Esq.
LAWYERS' COMMITTEE FOR CIVIL RIGHTS UNDER LAW
294 Washington Street, Suite 443
Boston, Massachusetts 02108
for the intervenor defendant
By: Matthew M. Cregor, Esq.

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CAROL LYNN SCOTT, CSR, RMR
Official Court Reporter
One Courthouse Way, Suite 7204
Boston, Massachusetts 02210
[phone]

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P R O C E E D I N G S

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THE CLERK:

This is civil action 14-14176,

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Students for Fair Admissions versus President and Fellows of

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Harvard College, et al.

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for the record.

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Will counsel identify themselves

MR. CONSOVOY:

Good afternoon, Your Honor.

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Will Consovoy for Students for Fair Admissions along with

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Patrick Strawbridge, Paul Sanford and Michael Park.

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MS. ELLSWORTH:

Good afternoon, Your Honor.

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Felicia Ellsworth for Harvard, with Seth Waxman and Bill Lee

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who has newly appeared and two individuals from General

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Counsel (indicating).

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THE COURT:

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MR. LEE:

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MR. CREGOR:

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Mr. Lee, welcome aboard.

Thank you, Your Honor.
Good afternoon, Your Honor.

Matt

Cregor on behalf of the student intervenor.

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THE COURT:

All right.

You guys are going to

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have to help me out here because this jury verdict threw off

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my whole afternoon so I have read all your letters but I

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read them when they came in so that three and four are very

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fresh in my mind.

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I have read them so you all are going to have to help me out

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here.

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One and two are less fresh in my mind but

There is an agreed upon discovery schedule;
correct?

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MR. CONSOVOY:

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THE COURT:

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MR. CONSOVOY:

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THE COURT:

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9.

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11 months?
Yes.

Harvard thinks they could do it in

They're willing to give you 11.

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Correct.

MR. CONSOVOY:

We're happy with the 11, Your

Honor.
THE COURT:

Okay.

I am, since I didn't have

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time, I would normally parse through this and ratchet you

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right back to where I think you should be but because I've

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been sort of just a little bit flat out I'm going to give

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you the 11 that you agreed to.

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schedule the last couple months, so the schedule is fine.

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You can benefit from my

And then, I can't -- I know your motion for

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reconsideration is still pending but I can't get to that

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today, I'm just not prepared to do it, but I will get to

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that in the next couple of weeks.

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And you are looking for much more expansive
discovery than Harvard is willing to agree to; correct?

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MR. CONSOVOY:

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THE COURT:

Correct, Your Honor.

Okay.

You want, you're willing to

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agree to sort of the higher ups and you want more of the

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individual admissions officers with the third-party people;

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do I have that generally right?

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MR. STRAWBRIDGE:

Yes.

To the extent that

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we're talking about custodians, we think it's certainly

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important to have some of the high-level admissions officers

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included.

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the Admissions Office who we have reason to believe are

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going to have relevant information.

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parties are pretty far apart on the number of custodians.

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We've attempted to pare our list once.

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response from the other side.

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there is a place to meet in the middle here but

We've identified some selective people outside

You know, obviously the

We've gotten no

You know, it may well be that

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unfortunately we have been unable to get there without some

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help from the Court.

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THE COURT:

So you want something like four

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and you were offering something like ten; do I have that

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right?

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MS. ELLSWORTH:

Your Honor, we've offered 11.

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There are three individuals not in the Admissions Office:

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The President, the Dean of the College, and the Dean of the

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Faculty of Arts and Science and then the remaining eight are

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admissions officers.

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and the director as well as several what I would call more

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like blind (ph.) admissions officers but certainly not every

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member of the 40 plus member staff.

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any documents from any of them yet so I'm not sure how we

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then know it's insufficient, or excuse me, that SFFA says

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they know is insufficient but that's what our offer has

And it includes the Dean of Admissions

And we haven't produced

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been.

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MR. STRAWBRIDGE:

So a couple, just a couple

quick rejoinders from that.

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We know for a fact that the first read on every

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application that is done is done by a junior admission

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officer.

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what are more fairly characterized as senior admissions

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officers.

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their colleagues than they are with their supervisors.

All the Admissions Office, they've offered I think

Certainly people are much more forthcoming with
And

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at the end of the day these are the people who do the first

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read on the applications.

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They have an integral role in it.

I'll just note that, you know, among the list of

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people we want from outside the Admissions Office is the

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Chief Diversity Officer as well as the Provost for Diversity

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and Inclusion.

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case we wouldn't get them in as custodians.

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It's kind of hard to imagine in this kind of

And then the other data point that we offered up

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which I think is reasonable is given UNC, which actually has

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a smaller admissions office, there are 70 people in their

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Admissions Office, there is fewer than that at UNC, we made

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an opening offer of 24 custodians in the parallel litigation

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which hasn't progressed beyond that point, but I think that

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kind of shows a more realistic assessment of what would be

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typical for a case like this.

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MS. ELLSWORTH:

There are 40 admissions

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officers.

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who don't perform reading functions but the number is 40

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give or take one or two, not 70.

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There may well be staff members and other people

We don't think what UNC has or has not offered has

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any bearing on what should happen in this litigation.

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also, I'm not sure that it's entirely true that none of the

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folks who we offered do first reads at all.

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prior points in their career they have.

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when you're talking about ESI searching, what we're talking

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about is information that might bear on the workings of the

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office as opposed to individual applicant decisions or

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applicant information that's not going to be coming up in

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searching email or other documents.

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in the database information that's already been produced so

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I just don't see the need for it.

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And I

Certainly at

I think, you know,

That's files alone or

On the diversity officers point that

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Mr. Strawbridge raised, again, the Dean of the college, Dean

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Khurana, has oversight overall of that so what we're, we're

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offering fairly senior level people but the right and the

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important people who could speak to Harvard's approach to

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diversity, the interest in diversity and from an ESI

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perspective we're going to have the final versions in the

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relevant we think communications on those topics.

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THE COURT:

All right.

Well, I'm inclined to

give them some of the senior admissions people.

I guess I

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don't fully understand how the process works so I'm not sure

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how the Chief Diversity Officer and the Provost would have

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any -- do they have any role in the application process?

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MR. STRAWBRIDGE:

I mean, I don't think that

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we have enough information to say what role they have but

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they certainly have a role in fostering diversity-inclusive

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policies on the campus which is really what the admissions

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process is all about achieving so I think certainly Your

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Honor is well aware of the fact we have a mismatched claim,

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that we have some other post admissions relevant data and

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relevant information in this case.

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asking for everybody who works under that person but we

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think that at least those two examples are prime people in

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the case about diversity and inclusion and Harvard's alleged

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interest thereof.

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THE COURT:

And, you know, we're not

I know what you meant, you say

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Diversity Officer and then the Chief Diversity Officer and

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that it's easy to sort of throw them in there but, I mean,

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we are looking at the admissions process, not what happens

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after the admissions process, at least as of this stage of

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the game.

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MR. STRAWBRIDGE:

Well, I guess I don't think

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that those two things are necessarily seamless.

We don't, I

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mean, we just, we don't have enough discovery yet to know

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what extent.

It's hard for me to imagine that the Diversity

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Officer doesn't have any interest in both how applicants get

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admitted and what the student body looks like and what sort

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of arrangements are made once they're there.

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point is --

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THE COURT:

And the

The arrangements that are made

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once they're there I'm not concerned about but do the Chief

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Diversity Officer and the Provost have any role in

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admissions?

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MS. ELLSWORTH:

No, Your Honor, no role in

admissions.
To the extent Your Honor is inclined to, if you

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think the more junior admissions officers are relevant, I

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guess what we would suggest is we think that 11 or

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thereabouts is a good number for this case given the federal

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rules on deposition limits, given the deposition limits that

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are, at least provisionally have been put in place by the

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Court for this case.

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So if more junior officers are needed, I guess what

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I would suggest is Your Honor can set a number from which

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SFFA can choose who, within reason who these admission

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officers should be rather than adding to the ones we've

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already offered.

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THE COURT:

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your letters.

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this size and magnitude.

I mean, I can go back and look at

Honestly 11 seems skimpy to me in a case of
On the other hand, 40 seems

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excessive to me in any case regardless of its size or

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magnitude so I guess I have two choices.

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parse your letters more carefully than I have which I'm

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happy to do or I can send you two back to the drawing board

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or you eight back to the drawing board, however many you

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are, and come up with another list.

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I can go back and

I don't want to just pick a number arbitrarily so I

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don't want to say that you want 10, you want 40, I would

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rather parse through it a little bit more but I think that

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the Admissions Office, they should get somebody sort of in

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each strata so they can sort of figure out what's going on

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at each level where the selections are being made that are

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relevant to them.

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So if you take the higher level people that I'm

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sure they want, that 11 number doesn't leave very many

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people actually in the Admissions Office and down in the

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weeds in the process.

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MS. ELLSWORTH:

We can certainly take that

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guidance in terms of people in each strata and also the

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guidance that even 11 seems not quite enough.

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with that but I understand your position.

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THE COURT:

We disagree

I mean, if I do go back and parse

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through these and you want me to make these decisions, I'm

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disinclined to order the Chief Diversity Officer, I'm

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disinclined to order the Provost and I'm disinclined to

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include alumni interviewers, sort of the third-parties that,

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whatever you want to call it, third-party interview types of

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people but I think they should get a representative sample

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of what's going on in the Admissions Office and it's hard to

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think they can do that with 11.

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MR. STRAWBRIDGE:

Can I just say a couple

things in response?

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THE COURT:

Sure.

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MR. STRAWBRIDGE:

First of all, I just want to

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make sure that we're clear.

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about here is the custodians.

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third-party alumni interviewers as custodians in this case.

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There is a separate issue with respect to identifying

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potential witnesses.

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I think what we're talking
We haven't asked for any

But with respect to custodians, the other people

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that we -- the alumni interviewers (ph.) are people who were

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actually mentioned in a deposition as the people who

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interfaced with the Admissions Office when there are

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requests from alumni or from donors to have certain people

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admitted.

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neutral alternatives available to Harvard and their

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admissions process directly so I guess I don't agree that

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those people have no role in the admissions process.

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That plays right into both some of the race

We do have evidence we'd be happy to submit in
support of that, if you'd like, but, you know, my only

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concern about going back is we have been trying to negotiate

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this for a while.

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I know that you think our number seems high.

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rights case.

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we've been willing to meet in the middle.

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movement out of them so I guess I'm a little worried that if

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we, you know, that it's just going to be, we're just going

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to be back here in another month and we're not making

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progress.

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We've come down from our initial number.
It's a civil

We think that the number is appropriate but

THE COURT:

All right.

We've gotten no

So, I mean, I'm happy

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to, I mean, now that this trial has resolved itself, I'm

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happy to take a deeper dive into the letters and just issue

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an opinion and an order, both on the discovery issue and the

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motion for reconsideration.

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MR. STRAWBRIDGE:

I think we would be fine

with that.

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THE COURT:

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MS. ELLSWORTH:

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THE COURT:

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Anything else today?

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MR. WAXMAN:

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That's fine, Your Honor.

Okay.

That's what I'll do then.

Congratulations on finishing your

trial.

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Okay.

THE COURT:

Have you been following this

trial?
MR. WAXMAN:

Yes.

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THE COURT:

Really good, cutting edge kind of

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and interesting, good lawyering all the way around which

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made it nice.

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MR. CONSOVOY:

A couple more, we have a couple

more points, Your Honor.

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Quickly though, I think we are getting to stuff

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inside the protective order and I think there may be people

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in the room who are not covered by that protective order, I

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just want to be careful about that.

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MS. ELLSWORTH:
think, not yours.

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It's our protective order I

MR. CONSOVOY:

Right, there are people in the

courtroom who are not covered by that protective order.

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MS. ELLSWORTH:

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What order, is it database?

(Whereupon, counsel conferred.)

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MR. CONSOVOY:

Database, I want to talk a

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little bit more about matriculating students and the

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issue --

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MS. ELLSWORTH:

So, Your Honor, if we're going

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to talk about individual database fields, we have designated

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those as "attorneys' eyes only" under the protective order.

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We would ask that our folks here from our firm could stay

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and there are others we'd ask might be excused or we can try

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and talk at a high level of generality, whichever Your Honor

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prefers.

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THE COURT:

I'm fine either way.

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to -- I am not going to clear the courtroom.

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I am happy

back and do this.

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MR. CONSOVOY:

We can go out

I can keep it high level.

I

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just wanted to make sure we -- I didn't want to jeopardize

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your interests as well.

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THE COURT:

Who is here who is not covered by

the protective order?

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(Pause in proceedings.)

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THE COURT:

If we need to step out, we can.

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MR. CONSOVOY:

Sure.

So a couple other

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points.

I take it Your Honor is going to look at the

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letters and all the issues because you covered only a couple

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of them.

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THE COURT:

Yes.

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MR. CONSOVOY:

There are many issues but I

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just want to, if I could briefly highlight some that we

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think are more urgent than ours.

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On the databases, Your Honor --

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THE COURT:

Yes.

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MR. CONSOVOY:

-we think that the number of

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years is quite insufficient.

When I was here in one of the

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earlier hearings, I raised a concern that I would be empty

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handed at the podium in front of an appellate court because

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we didn't have the record we needed.

And I think Fisher II

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bears out my concern that, and I was told I was empty handed

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there, that three terms of data was insufficient to prove

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what needed to be proved in Fisher and in all candor was

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held against us.

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And so I just want to underline that point as Your

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Honor goes back and reviews those letters that the Supreme

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Court indicated, there have been eight years of data, it

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would be inappropriate to have in a case just like this that

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we're alleging, I just want to make sure we understand what

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kind of claims, I know it has been a while since we got into

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the merits of this.

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We're alleging that Harvard is engaging in racial

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balancing of the class over a four-year period.

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all four years in that period to prove that claim.

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asking for two full-year periods of data, data that Harvard

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has, that it can easily produce, that it's not burdensome

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and that they've already produced two years quite quickly

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and that it is not privileged.

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You need
We're

We have also said that we are willing to table any

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request for application files while we review that data.

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is our hope, we understand from, we're trying to listen as

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well, that the Court is concerned about requiring Harvard to

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produce application files.

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It

We hear that.

This is the solution in the short term.

If we can

get those eight years, we think, and get the fields that we

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need within them, they have redacted fields that are

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essential to understanding the process.

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charge of this case deciding what fields are relevant and

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what fields are not.

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Harvard can't be in

Our experts have to figure that out for themselves.

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Things like -- I'm going to try to stay general here.

We've

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identified those fields in our letters.

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what they are but they are central to determining how

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applicants are compared head-to-head, how different schools

I won't tell you

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are compared, how different regions in the country are

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compared.

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If you review the deposition transcripts which

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we've highlighted, this is essential to what they do.

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think our general frustration in this case has been -- and

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without getting into the very particular issues -- that we

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have asked for information that is relevant, that is not

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covered by any federal or state common law privilege, that

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is not burdensome to produce or duplicative.

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said no because of a general privacy concern and because

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they don't think it's important enough for us to get.

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I

Harvard has

That's just now how discovery works in a civil
rights case.
THE COURT:

Okay.

I am going to go back to

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these letters but just so you understand where I am coming

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from, I limited discovery significantly while Fisher was

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pending because it wasn't clear to me what would be

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relevant, how much of your case would be left, how, what

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they would do in response to Fisher.

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came out where it came out.

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have some reason to be emboldened (ph.) but now we are going

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to have real discovery, like we are going to get to this and

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it is going to get done.

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And, you know, Fisher

Your case lives on.

They can

I am, I remain concerned about the applicant files
and if I can balance it out, I will.

As I sit here, I am

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happy to hear you on it.

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me, especially where it limits the applicant files which is

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what I am really concerned about, but we are going to do

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sort of fulsome discovery at this point.

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Eight years doesn't sound crazy to

Now we know what the parameters are.

We know what

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the legal standard is more or less.

To the extent it

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clarified it, it clarified it.

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less limited than it has been, now that you know what the

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parameters are and we won't, we're not so much at risk of

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having to do it and then do it again.

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going to be broader than it's been.

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happy to hear you on it but eight years doesn't sound crazy

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to me.

And it is going to be a lot

So, I mean, it's

And eight years -- I'm

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MR. WAXMAN:

Before you rule --

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THE COURT:

I'm not ruling today.

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MR. WAXMAN:

-- it is a serious misreading of

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Fisher to say three years in any case, and this is a case in

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which two years has produced 70,000, records of 70,000

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applicants.

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been hard at work on this, have not been able to come up

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with statistically significant trends that they can talk

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about out of the sample of 70,000, that's simply because

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they aren't there.

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If their empirical people, who I am sure have

Now, I understand the argument that more years is
better and we're talking about data.

We're not just talking

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about data.

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possibly the year before and the following year, are

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essentially using, the same data is being colleted under the

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same conventions.

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The two years that we produced, and I believe

As you go back farther and farther, we haven't

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looked at this except to know that different data was

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collected using different criteria and there will be

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significant work to sort of harmonize it so that year

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after -- year against year can be evaluated.

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I think it's important to understand this is not a

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damages case.

This is a case asking for prospective

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injunctive relief.

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any meaningful discovery into the standing of this case but

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they've identified, quote, "members" in the classes for the

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years in which we've produced.

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has a claim or has made a claim with respect to, you know,

They have some -- we still don't have

They don't have anybody who

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all of these prior years.

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whole admission cycle, that is four years, I think it's

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important to understand here that there is no dispute that

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Harvard is assembling classes among an extremely large

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number of highly qualified applicants class by class.

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have two full classes and they can evaluate the extent to

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which the decisions that are made over an admission cycle

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reflect intentional discrimination.

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argument for somehow including a four-year range --

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THE COURT:

And if the argument is we need a

They

Even if there were an

Let me ask you this:

So if they -- one of their claims is that there is

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an impermissible quota system.

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some class of people, I don't care, we can talk about any

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one you want, Asian Americans or, you know, whoever else,

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and the percentage of them in those two classes is the same,

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which I think is what they allege in their Complaint, right?

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That the percentage is the same year after year?

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MR. WAXMAN:

That's what they allege.

It's

not what they can prove but --

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And let's just say there is

THE COURT:

But how do you prove or disprove

that by the statistics of two years?

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MR. WAXMAN:

Those numbers are publicly

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available.

They have them just as we have them.

Harvard

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publishes every single year.

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hundreds of thousands of other applicant files on a huge

They don't need a database of

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number of variables to know what the percentage of Asian

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Americans, African Americans, Hispanic Americans, Pacific

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Islanders, White Anglos, Jews have been accepted every year.

4

THE COURT:

But is it not relevant, I mean, if

5

you have -- and I'm just making it up, I'm Jewish so I'll

6

say that, I'll use Jewish.

7

people every year, isn't that relevant to the significance

8

of that number how many Jewish applicants you had?

9

isn't that what changes year over year?

10

If you have ten percent Jewish

And

Because if it is ten percent out of the exact same

11

number, that means one thing, but if it's always ten percent

12

and the number of applications fluctuates, does that not

13

mean something else?

14

MR. WAXMAN:

Sure, if there were wild

15

fluctuations in applications and the same percentage were

16

accepted every year, that would be a data point to argue

17

that what was going on was, in fact, ethnic or racial

18

balancing.

19
20
21

THE COURT:

How are they supposed to know that

with only seeing two years?
MR. WAXMAN:

Yeah, I mean, we can do this very

22

simply without transferring hundreds of thousands -- data

23

from hundreds of thousands of files.

24

aggregate for them the number of Asian American applicants,

25

the number of Jewish applicants, all the self-reporting data

Simply, we can simply

21

1

going back eight years if that's the issue.

2

The question is whether we have to turn over for

3

years and years before any plaintiff ever had any claim in

4

this case or any member of a plaintiff had any claims in

5

this case in order to show them that, yes, in, you know, in

6

2012 we had X number of Jewish applicants who self-reported

7

as Jewish and Y number of Jewish matriculants, that can be

8

done.

9

That's not the whole database.
I think if there is any argument for more than

10

70,000, the data from 70,000 files, it certainly wouldn't be

11

for more than four years.

12

experience.

13

than two years but I don't understand how we immediately

14

devolved to eight years.

That's an entire college

I don't think there is an argument for more

15

MR. CONSOVOY:

16

Fisher eight years was the right number.

17

read the opinion.

18

would like to have the last eight years to evaluate the

19

current system.

20

years was essentially woefully insufficient.

21
22
23

The Supreme Court said in

They weren't guessing.

Your Honor can
They said we

That is direct -- and they said that three

So, I don't need to re-read the opinion for Your
Honor but it's there.
Second, this kind of argument is exactly what I

24

have been talking about.

Harvard has been trying to

25

litigate the merits of the case on the first day of

22

1

discovery.

2

information in them that is likely to lead to discoverable

3

evidence.

4

All we're looking for are databases with

This is a Title VI claim.

If this were a Title VII

5

claim for a pattern and practice of racial discrimination,

6

that would similarly be for prospective relief; but, of

7

course, when you're evaluating the pattern and practice you

8

have to look backwards to evaluate what the current policy

9

is.

And Your Honor hit it exactly on the head in terms of

10

needing more, it's actually much more than Your Honor said

11

but you said it right.

12

That is conveniently the one field that Harvard doesn't make

13

publicly available.

14

applicants but they won't tell you how many from each racial

15

group applied.

16

it's the information behind that that's equally important.

17

We don't just have the quota claim.

18

claims.

19

have a claim that under Grubb (ph.) race is more than a

20

non-predominant factor in admissions.

21

We don't know how many applied.

They tell you everything about their

That has always been interesting to us.

But

That is one of our

It's, you know, one of our main claims but we also

Now, you have to do a head-to-head -- and Your

22

Honor brought this point up in a previous status conference.

23

Head-to-head comparisons are going to be very important over

24

time.

25

dissimilarly?

Are people of similar qualifications being treated
We need to know.

And I'm not talking about

23

1

what's actually in the database now.

2

same high schools?

3

They've withheld aspects of a person's application that they

4

deem essential to the admissions decision.

5

I'll leave -- I won't belabor it but this is my point:

6

Do people go to the

They've withheld extracurriculars.

So this is, and

Harvard wants to be in charge of what we get to

7

see.

If they haven't, if they don't know what their systems

8

look like over the past year of this stay, then they haven't

9

been looking.

How could they not know at this point -- I,

10

mean, Your Honor asked us to all be diligent and be ready --

11

not know how they kept their data and whether it would be

12

easily -- we've been asking for a year.

13

for multiple years for a long time now.

14

We've been asking

All we're asking for are databases to avoid getting

15

files.

16

years, it's two cycles of experience.

17

This is a, I think just straightforward.

It's eight

And the last point is it's not just that it's ten,

18

ten, ten every year.

Our claim is that if it bumps up one

19

year, they bump it down the next, right, so that over a

20

four-year period the Jewish number would average out to ten

21

and so you need to see those bumps, right, and you need to

22

see them over multiple cycles.

23

At summary judgment if they want to argue that

24

it's, you know, not good evidence, not strong evidence,

25

that's what summary judgment is for.

That's what a trial is

24

1

for.

Discovery goes beyond the bare essential claims and

2

says what's out there.

3

I think this is straightforward.

MR. WAXMAN:

So this is an odd case in that

4

the discovery in this case is, I mean, I understand Your

5

Honor is considering our reconsideration motion but even if

6

it were warranted, it is unbelievably lopsided.

7

talking about discovery of an institution that is, A,

8

nonprofit, and, B, imbued with protection of the First

9

Amendment.

We're

I mean, other than the Fisher case it's hard to

10

recall an opinion that the Supreme Court has in which the

11

Supreme Court has adjudicated what goes on in universities

12

without hearing about the First Amendment and the extent to

13

which the First Amendment protects.

14

Secondly, with respect to the database fields,

15

we're happy to come in and talk with Your Honor about what

16

fields, particularly what fields, what it is that we're not

17

producing, but we are concerned as, Your Honor knows, with

18

the privacy of people who apply to Harvard and who attend

19

Harvard and who did not choose to be part of this lawsuit.

20

And the things that we have, the fields that we haven't

21

produced are fields that we believe would either implicate a

22

FERPA notification but more importantly would permit the

23

identification of a student, a student who had the following

24

extracurriculars and went to this high school.

25

THE COURT:

So, I mean, we've been around

25

1

this, we've been around this before, but let me ask you this

2

so I understand.

3

So we get to summary judgment or trial, wherever

4

we're going on this, and they say these few applicants are

5

equal and this one that's selected wasn't.

6

to that and say no, this guy was captain of his football

7

team.

8

not giving them, if you're not giving them information that

9

they need to differentiate?

10

And then you get

How are they supposed to guard against that if you're

MR. WAXMAN:

Well, look, obviously we are not

11

going to be -- we are going to be constrained in the same

12

way that they are.

13

If we're talking about applicant, applicant files,

14

I don't know how they're going to be able to say this guy is

15

the same as this guy based on a database record.

16

THE COURT:

17

MR. WAXMAN:

18

THE COURT:

19

MR. WAXMAN:

20

THE COURT:

But something like -If all we produce is the data -Something like being captain -Excuse me?
Something like being captain of

21

the football team, let's say that you're like, let's just

22

say that you're an African American captain of the football

23

team in a predominantly white area.

24

something important about that candidate, it says a lot of

25

important things about that candidate.

That tells you

How are they

26

1

supposed to know that if you're not kind of giving them what

2

makes that kid unique?

3

MR. WAXMAN:

There is going to be, I mean,

4

they are getting deposition testimony from -- I mean,

5

they've already deposed the Director of Admissions.

6

undoubtedly will depose the Dean of Admissions and others

7

within the Admissions Office about how this works and how

8

these individual considerations work.

9

They

If you're asking about a head-to-head between

10

candidate X and candidate Y, that's an argument which I

11

think requires a disclosure.

12

have an admissions officer say, yeah, I looked at this file

13

and I looked at this file and here's why I think the

14

committee of 40 voted this way in this case and voted this

15

way in another case.

16

On those terms you'd have to

We're not talking about -- we're not talking here

17

about the number of electronic, the data -- the size of the

18

database and the fields that are identified.

19

understand, and maybe it would be easier for us to argue

20

about the case if we had, if we didn't have the privacy

21

constraints that we're operating under.

22

that this is a balance and we have to live by whatever it is

23

that the Court rules just as the other side does.

24
25

I fully

But we understand

You know, I've heard from Mr. Consovoy a number of
times about this is not how discovery works.

They made

27

1

their allegations.

2

we have to defend against it and we can't haul out at trial

3

something that we have refused to produce to them, and Your

4

Honor has upheld, as a way of defending the case.

5

They're going to put on their case and

THE COURT:

If I ordered you to produce the

6

database in a way that, you know, arguably like, like, let's

7

just say that you give a certain zip code, there's only one

8

high school in that zip code and there's only one football

9

captain, if that.

10

Arguably you've put out enough data to

figure out who this kid is.

11

If I ordered you to produce a database that have

12

these three pieces of information, does that trigger your

13

FERPA obligations do you think?

14

MS. ELLSWORTH:

I think we would take the

15

position that a FERPA notice with that combination would

16

require FERPA.

17

MR. CONSOVOY:

Your Honor, it might implicate

18

that one isolated, it's just a notice.

19

about -- it's just a notice that has to go out to comply

20

with FERPA.

21
22

If Harvard wants to make a privacy argument -THE COURT:

It is not just a notice.

It's not

just a notice.

23

MR. CONSOVOY:

24

THE COURT:

25

We're not talking

opportunity to object.

I believe it's just a notice.

The other person gets an

It's a process.

28

1

MR. CONSOVOY:

Sure.

UNC sent out notice to

2

all the people.

3

If that came up, then we'd actually have, but then we'd

4

actually have a real issue; right?

5

issue right now.

6

extracurriculars are going to be withheld in determining

7

whether their admission decisions are legitimate.

8

There has been -- nobody has weighed in.

We don't have a real

We have Harvard saying, remarkably, that

The deposition itself, the deposition itself

9

identified all of the characteristics essential to the case.

10

We would prefer to be able to litigate our own case the way

11

we'd like to.

12

admission decision.

13

contrary to that.

14

given us.

15

We believe the information is relevant to the
I promise you Harvard will not say

It's in the database they've already

We just want the field to be not disclosed.

We have a protective order in place.

It was, Your

16

Honor noted, heavily negotiated.

17

purpose, so that the parties could freely produce the data

18

that was necessary to resolve the case.

19

data.

20

It was negotiated for this

We simply need the

We cannot litigate our case without it.
MR. WAXMAN:

Well, it's true that the FERPA

21

notice permits objections and there could be litigation

22

about that but the privacy interest here that FERPA is aimed

23

at protecting, and, frankly, it's an institutional concern

24

(ph.) at Harvard is, yes, so everybody now knows that, you

25

know, I could apply to Harvard, I can apply to Yale, I could

29

1

apply to Stanford, I could apply to Duke, but if I apply to

2

Harvard, you know what?

3

that is likely to be produced or could be produced or has

4

been ordered to be produced in other years that would allow

5

me to be identified.

6

that the notice goes out that, yes, these personally

7

identifying features in the files will be disclosed.

8

weren't for that concern, we would be very happy to produce

9

all of these files insofar as there are data -- these

10
11

There is information from my file

It's a competitive concern for Harvard

If it

database fields insofar as they bear on determinations.
There is no question that the high school that an

12

applicant went to is a factor that the Admissions Office

13

considers in an effort to achieve the broadest form of

14

diversity possible.

There is no question about that.

15

The question is where you draw the line in order to

16

protect the privacy of individual people who never wanted to

17

be part of this lawsuit, the vast majority of whom aren't

18

even at Harvard, against the interests in finding out

19

everything possible that might possibly be relevant to what

20

the plaintiffs think they want to show.

21

THE COURT:

Well, so I don't really buy the

22

idea that this would put Harvard at a competitive

23

disadvantage.

24

about not so much just generally identifying it, you know,

25

some kid applied to Harvard but more than that, the personal

I am somewhat concerned about people's --

30

1
2

stuff in their application.
So, I mean, let's just say, I mean, what is the

3

exact privacy interest sort of implicated here in the

4

database?

5

data, right, in the database?

You get who applied and you get sort of objective

6

MS. ELLSWORTH:

Yes, there are certain -- some

7

of the fields that are in question have the narrative

8

entries so they're going to be, it's going to be descriptive

9

self-entered information about an individual's

10

extracurricular or honors, other biographical type

11

information.

12

relate to, sort of a rating or something that an Admissions

13

Officer has provided, some of which doesn't relate to the

14

admissions process at all.

15

like that, are taken into account in the admissions

16

decision.

17

been produced in fields we're talking about here that were

18

raised in SFFA's letter, they are the narrative fields that

19

say "captain of X" as opposed to football or however many

20

hours per week were spent on football, just to use that as

21

an example.

22

There is some other fields at issue that

The extracurriculars, things

Lots of extracurricular information has already

So it's not that no extracurricular information has

23

been produced and no honors information has been produced.

24

The vast majority of the information that bears on the

25

admissions decision has been produced.

It's these fields

31

1

that have the more narrative descriptions of what somebody

2

did or the role that they played which we think, you know,

3

has poured over into the personally identifiable limit and

4

then we get into just serious privacy concerns.

5

THE COURT:

I don't think just, I don't think

6

just identifying somebody raises a very high privacy concern

7

but to be able to link somebody's identity with some

8

personal background information seems to me a bigger

9

intrusion.

10

MR. STRAWBRIDGE:

I just want to remind Your

11

Honor that the protective order in this case already

12

relieves them of any obligation to produce actual names and

13

addresses, anything like that.

14

We also agreed that to the extent the narrative

15

field included that actual information, that they could

16

redact data on a field-by-field basis.

17

THE COURT:

But what they're saying is that if

18

you put together some of those fields in a small school in a

19

small town in a rural state or whatever, that you could

20

figure out who these people are.

21

MR. STRAWBRIDGE:

So that's true, although if

22

you recall, the protective order actually has a provision

23

that they insisted on that we agreed to that actually

24

prohibits us from doing that upon, you know, pain of

25

contempt of this Court.

We actually agreed that we weren't

32

1

going to try to do that gumshoe work.

2

identify anybody.

3

predominant factor in the admissions decision.

4

We're not trying to

We're trying to understand what is the

And I don't understand, if the narrative field says

5

that you're the captain versus just a player, if the

6

narrative field says that you were the leader of your

7

extracurricular club as opposed to just a member, that the

8

narrative field says that you did this or you achieved this

9

accomplishment, how can that not be a factor that is

10

relevant to the admissions decision in trying to weigh as to

11

whether --

12

THE COURT:

It's clearly relevant to the

13

admissions process and I'm trying to sort out whether the

14

privacy intrusion outweighs the relevance.

15

telling you is they have just been able to identify the

16

person sort of doesn't unduly distress me but are there

17

things beyond that that should?

18

MS. ELLSWORTH:

And what I'm

Well, I guess I'm not sure

19

what it is that would be concerning to Your Honor.

There is

20

a whole wealth of information about marital status, parents'

21

marital status, financial, socioeconomic status, whether

22

someone is disadvantaged or eligible for financial aid,

23

things like that that may spill more over into the types of

24

information that is more than just identifying who the

25

person is by very personal facts about themselves or their

33

1

family or their background.

2

MR. CONSOVOY:

Disadvantage is at the heart of

3

this case.

4

answered.

In answering they're saying our allegations are

5

plausible.

Every -- and it's in our letter, Your Honor.

6

Everything we're asking for is directly tied to an

7

allegation that they answered saying it's plausible.

8
9

I mean, again, we filed a Complaint.

Harvard

We argue in Count 6, Count 5 and Count 6, that
race-neutral alternatives, socioeconomic benefit as a

10

preference instead of race would eliminate the use of race.

11

Harvard is withholding who is socioeconomically

12

disadvantaged.

13

I know how it is not relevant.

14

They answered the Complaint.

MR. WAXMAN:

It's relevant.

Our argument is it's not relevant

15

and we think that we've produced fields that actually

16

disclose that.

17

here, Your Honor, is we know what the fields are that we

18

produced and they are arguing about names of certain other

19

fields that aren't being produced.

20

Your Honor's time or tell you how to run your courtroom but

21

it might be worth simply having, you know, one lawyer from

22

each side come in and walk Your Honor through all of the

23

fields that have been produced for 70,000 files already and

24

understand what it is that we're not withholding and then

25

Your Honor can decide how the line is drawn.

I think, one of the problems we're having

I don't want to offer up

I think we've

34

1

articulated what we think the right balance is and the

2

concern that we have.

3

THE COURT:

Well, so that's not a bad idea.

4

And just the way that my day unfolded, I am just not as

5

prepared for this conference as I ought to be so why don't

6

we recess this, unless there are other topics that you want

7

to discuss today, I will go through this, get further along

8

on the decision trail and then have somebody in to sort of

9

talk through whatever issues that remain.

10

MR. CONSOVOY:

11

I have two really short ones.

12
13

That sounds great, Your Honor.

THE COURT:

That's fine.

I'm not in any

hurry.

14

MR. CONSOVOY:

One is we respect Your Honor's

15

rulings about the, or leanings on the diversity officer but

16

it has raised one, the overall approach did raise one

17

concern.

18

I just want to be heard on that briefly.
We do have claims in this case that go to the

19

experience of matriculating students.

We have a claim and

20

it's in the Supreme Court's opinion on Fisher.

21

says, In reviewing these programs as to whether they reach

22

strict scrutiny, you have to weigh the benefits of them,

23

which Harvard counts, but also the costs.

24

that one of the costs of having these programs is what's

25

called a "mismatch effect."

Fisher II

We have alleged

It's in our Complaint.

35

1

I am not saying we're going to get everything we

2

want on matriculating students.

3

may be different than the custodian issue.

4

understand that, although I do think the Chief Diversity

5

Officer would probably -- communications have real insight

6

into the cost and benefits of using race as an admission

7

criteria.

8
9

We're asking for a less, it
Emails, I

But putting that aside, I just don't want the Court
to be under the impression that this is just about the

10

applications.

11

their program isn't meeting their desired needs.

12

think it would be relevant to the finder of fact not just

13

what the freshman class looks like but what the senior class

14

looks like.

15

Harvard?

16

Are they failing out?

17

cross-racial understanding, which is the premise of their

18

program, occurring at Harvard?

19

point.

20

superficial.

21

We can win this case if we can show that
I would

How are these students doing when they get to

Are they succeeding in the majors they've chosen?
Are they having a positive -- is

This was Justice Kennedy's

This can't be a paper case.

This can't be

These are deep, important issues.

I understand that there are going to be, that's why

22

they chose to use race in the admissions.

23

price.

24

the Courts.

25

That comes with a

The price is there is going to be some intrusion by

And I just want to let the Court know that the

36

1

matriculating students are not part of our case.

2

indirectly relevant.

3

MR. WAXMAN:

They're

Look, the -- I think we will be

4

arguing for however long Your Honor has this case about what

5

Fisher II decided.

6

point that it is the university and the university gets

7

great deference in defining what success is and defining

8

what an appropriately diverse class is.

9

Fisher II was very, very clear on the

And in direct response to the points that my

10

friends here were making in Fisher, that if you simply

11

didn't take race into account, you would have, I don't know,

12

smarter students, more academically-prepared students.

13

The Supreme Court said, The University gets to

14

decide this.

15

theory I think is over in light of Fisher II.

16
17

And this so-called and quite odious mismatched

Now, Your Honor can decide that at an appropriate
time but --

18

THE COURT:

19

Scalia.

20

It may be over given the death of

but --

21

That itself might have been but for the death now

MR. WAXMAN:

Well, the author, the person who

22

wrote the book on the Mismatched Theory, Stuart Taylor, one

23

of the -- a friend of mine and one of the intellectual

24

pro-genders of the plaintiff's case has already published

25

something saying this litigation is over unless the next

37

1

President gets to support, gets to appoint two presidents

2

with extremely different views.

3

a one-off case, these theories are gone.

4

These theories, this is not

Now, I'm not saying that that's how Your Honor

5

should rule in this case; but the notion that a case about

6

race discrimination in admissions requires intrusive

7

discovery about matriculating students and how they're doing

8

so that they can make their own case about Harvard, how

9

Harvard should be defined in success is beyond the pale.

10

MR. CONSOVOY:

Harvard is making my initial

11

point every time Mr. Waxman stands up.

12

litigate our case for us.

13

We have a claim.

They want to

The claim has merit.

14

answered.

15

we would have heard from them in their letter to the Court

16

about Fisher II that, there is nothing in there that says

17

that.

18

these programs.

19

Nothing in Fisher II forecloses it.

It was
If it did,

It says we must measure the costs and benefits of

Deference is a summary judgment issue, Your Honor.

20

He makes my point.

21

judgment today so don't give them the information that is

22

relevant to their claim.

23

Harvard wants to say we win summary

We're asking for limited information.

I would

24

think -- I don't understand how it couldn't be relevant, I

25

am just hypothesizing this, it is not the case.

If all

38

1

minority students were having unsuccessful experiences at

2

Harvard, if they were dropping out of their majors, could

3

anybody say that that's not relevant to Harvard's compelling

4

government interest in the use of race?

5

relevant.

6

time later in the case -- they agreed to an 11-month

7

discovery for a reason.

8

litigate how far deference goes, how much, what is the line

9

between good faith and bad faith.

All we want is the data.

10

that yet.

11

Of course it's

There will be plenty of

There will be plenty of time to

We are nowhere even near

basic data.

12
13
14
15

We have a long way to go here.

We just want some

And all we're saying today is matriculating
information is relevant to the case.
MR. WAXMAN:

That's it.

The fact that we answered the

Complaint and denied it doesn't say anything.

16

THE COURT:

17

MR. WAXMAN:

And --

I agree.
And there may very well be at an

18

appropriate point in time in which we can identify for the

19

Court counts of the Complaint that are no longer viable in

20

light of Fisher II.

21

The point here is that the privacy interests of the

22

matriculating students are greatly implicated by this, a

23

case which challenges race discrimination in admissions.

24

have, we understand that we have two prongs that we have to

25

satisfy to carry our burden.

And the first one is to

We

39

1

explain what we are looking for in a student class and how

2

we go about getting it.

3

And the second is to demonstrate why there are no

4

appropriate and sufficient, quote, race-neutral alternatives

5

that get us there.

6

burden to -- since we have acknowledged that we engage in

7

race-conscious admissions, we have to prove those two things

8

to the Court.

9

We understand that that, it is our

And we will.

But inquiries into the records and successes and

10

performances and failures of matriculating students is

11

unbelievably intrusive and quite orthogonal to what the

12

legal theory in this Complaint should be or is.

13
14

MR. CONSOVOY:

It should be was, again, my

point.

15

THE COURT:

I get it, I get it.

16

MR. CONSOVOY:

My only point is if there was a

17

motion to dismiss it would have been filed, which means the

18

allegations are plausible and the discovery rulings as I

19

understand it are tied to whether the information is

20

relevant to a claim that has been entered.

21

point.

22

I've said my piece on that.

23

That was my only

And I don't think anybody disagrees that it is.

I just want to add, there is an issue we want to

24

raise for Your Honor.

It's not before you today.

25

do with Mr. Lee's appearance.

It has to

He is on the Board of Fellows

40

1

for Harvard.

2

THE COURT:

Yes.

3

MR. CONSOVOY:

It has raised a concern about

4

whether he may or may not be a potential witness in this

5

case.

6

this issue right now.

7

Court.

8

information we need to evaluate the question.

9

it never has to come before the Court but we want to make

10

sure that you're aware of the concern and that the parties

11

are working through it.

The parties are both in good faith working through
We're not putting it before the

Everyone has -- we are working to get the

12

THE COURT:

13

MR. LEE:

We hope that

Okay.

And, Your Honor, I called

14

Mr. Consovoy the day I entered my appearance to explain to

15

him that I had acted as Senior Fellow but before I entered

16

my appearance I completely recused myself from all of my

17

fiduciary obligations having anything to do with this case.

18

I have actually given them information to prove that to

19

them.

20

am not participating in anything at the corporation level

21

that has to do with the case.

They're communicating with

22

Mr. Waxman and Ms. Ellsworth.

I'm just here to be one of

23

the foot soldiers at the trial.

And that once I did that and entered my appearance, I

24

MR. CONSOVOY:

25

THE COURT:

I don't want to --

An impressive foot soldier.

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1

(Laughter.)

2

MR. LEE:

Thank you.

3

MR. WAXMAN:

4

MR. CONSOVOY:

We think so.
We respect him.

We don't want

5

this to be an issue but I have a duty to my client and our

6

concern goes to things that were done before or earlier than

7

when that switch was made.

8
9

THE COURT:

Okay.

That's fine.

If it comes

before me, I will deal with it.

10

You look like you want to speak back there.

11

MR. CREGOR:

Thank you, Your Honor.

12

Cregor for the student intervenor.

13

Matt

matters.

14

Just a quick two

First, I'm very happy to be here in the role that

15

you granted us.

16

We ask that if matters come up for which we need

17

clarification that we have the opportunity to seek it.

18

As intervenor we're monitoring discovery.

For example, we wondered, Your Honor, if there is

19

some way to be generally informed of discovery such that

20

when the dispositive motion arises we have some sense of

21

what's leading up to it.

22

now for consideration later.

Just something to raise for you

23

And then, lastly, we received a great deal of

24

Interest from both current and prospective students at

25

Harvard about this case.

As the school year starts we would

42

1

wish to add some students to our group of Amici.

2

wanted to flag it for the Court now.

3

THE COURT:

I just

I mean, I'll let the parties speak

4

on that but I don't have any issue with you adding or

5

subtracting people as is appropriate.

6
7

MR. CONSOVOY:

On the

other we would have concerns.

8

MS. ELLSWORTH:

9

THE COURT:

10

On that issue, no.

No concerns.

Okay.

We will cross that bridge

when we get there.

11

MR. CREGOR:

12

THE COURT:

Thank you very much, Your Honor.
All right:

We'll get working on

13

this.

I'm sorry, I've been just a little bit -- I tried

14

that criminal case, it was eight weeks.

15

ten to four which has left just literally around the margins

16

so my bad on that but it just ended up being more consuming

17

than I anticipated.

18

MR. CONSOVOY:

We tried it from

Your Honor, one final

19

technicality.

20

we can start doing that we don't have to wait on your --

21

Is the stay lifted?

THE COURT:

Yes, the stay is lifted other than

22

the issues that you raised in here.

23

to that too.

24
25

Because there are things

I mean, it's lifted as

I just don't perceive any progress until I -MR. CONSOVOY:

We may have additional

discovery to propound and things like that.

43

1
2

THE COURT:
Okay.

That's fine.

All right.

3

VOICES:

4

THE CLERK:

Thank you.

Thank you, Your Honor.
Court is adjourned.

5
6

(WHEREUPON, the proceedings were recessed at 4:00

7

p.m.)

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C E R T I F I C A T E

I, Carol Lynn Scott, Official Court Reporter for
the United States District Court for the District of
Massachusetts, do hereby certify that the foregoing pages
are a true and accurate transcription of my shorthand notes
taken in the aforementioned matter to the best of my skill
and ability.

/S/CAROL LYNN SCOTT

_________________________________________
CAROL LYNN SCOTT
Official Court Reporter
John J. Moakley Courthouse
1 Courthouse Way, Suite 7204
Boston, Massachusetts 02210
[phone]

DATE: August 3, 2016