March 23, 2023

"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?"

Asks Jeannie Suk Gersen, in "The Secret Joke at the Heart of the Harvard Affirmative-Action Case" (The New Yorker). The case, pending before the Supreme Court, it Students for Fair Admissions v. Harvard.

During the trial, [Judge Allison Burroughs] often had S.F.F.A.’s and Harvard’s lawyers approach the bench for lengthy sidebar discussions, which others in the courtroom couldn’t hear.... [T]he judge automatically sealed all the sidebars. ... I filed a letter with the court, asking, in my capacity as a researcher and a reporter, that Judge Burroughs unseal the sidebars...

To my surprise, Seth Waxman, who argued the case for Harvard, quickly objected on behalf of the university—the one that employs me as a tenured law professor, whose job it is to freely conduct research and pursue knowledge. He wrote that the sidebars contained “personal and confidential information that should remain sealed,” providing examples of specific transcript pages that included information about applicants or “information that was not admitted into evidence at trial.”....

Various news organizations joined Professor Gersen's request. 

Judge Burroughs held a hearing on the request in mid-November. I represented myself in court. She said, “There are a lot of things in those sidebars that were really just meant to be out of the hearing of the jury, not meant to be out of the hearing of the entire world for all time.”

But there was no jury. 

“In response to Harvard’s letter, I think that the secret sauce will stay under seal, which I suspect is what all these news medias really want.”

Secret sauce?! Did that refer to some sort of trade secret of Harvard's? But that sounds like it would be the secret to how Harvard manages to accomplish its racial balancing, the very subject of the lawsuit.

Judge Burroughs held two hearings about which trial sidebars to unseal and which to keep secret, but she closed the proceedings to everyone except the attorneys for Harvard and S.F.F.A. Then, at a public hearing, in mid-December, Judge Burroughs announced her decision: she would unseal most sidebars but keep some portions sealed. Some sidebars, she revealed, contained discussions of “a very poor, ill-advised, and in bad taste joke” that a Department of Education official at the Office for Civil Rights—who, in the late eighties, had led a federal investigation of Harvard—sent to Harvard’s dean of admissions. According to Judge Burroughs, the joke, which took the form of a mock memo from the Harvard admissions office, “referenced certain Asian stereotypes” and included “anti-Asian remarks.” Judge Burroughs said that she would keep sealed “the exact words” of the federal official’s “joke memo,” taking into account the “privacy interest” of the “gentleman” who wrote and sent it....

Why would protecting this man, who exercised federal power, outweigh the interest in finding out about his bias?! 

“What he said was clearly in poor taste, but I don’t think the details of what he said is what’s important,” she added. I argued to Judge Burroughs that “the interest of the public in knowing what that joke was, the actual content, the words, would be extremely important.” She disagreed, assuring me that, although the precise words would be blocked out, “you won’t be mystified about what was said.”

I also asked Judge Burroughs to unseal the transcripts of the closed proceedings that she’d held on the unsealing issue... She [would only] summarize some of the arguments that were made.... As I began to [argue], Judge Burroughs cut me off: “Yes, I know. I get it.” And then: “I hear you. I got it. I got it.” I wouldn’t have anticipated or believed what she said next, but there it is in the transcript: “Greedy, though, Ms. Gersen.”...

Greedy!!  

In January, Judge Burroughs did release those hearing transcripts. They show that Harvard argued vigorously against unsealing certain sidebars.... Regarding the “inappropriate, anti-Asian, stereotypical, poor attempt at a joke,” Judge Burroughs explained, “What I’m trying to do is give them”—the press—“a flavor of it without really being awful about it, I guess.”

If it's that awful, that's why we need it. Gersen does get hold of the joke memo, because it was a public document, so why work so hard to suppress it? Gersen says it's because "both Harvard and the court expect the public to operate on trust that their decisions are not biased."

The federal official who wrote the joke memo, Thomas Hibino, worked at the Boston location of the Office for Civil Rights.... After Hibino oversaw the federal investigation into Harvard’s alleged discrimination against Asian American applicants, decades ago, he and [Harvard admissions official William Fitzsimmons] became friends....
On November 30, 2012, amid a friendly back-and-forth about lunch plans, Hibino e-mailed Fitzsimmons an attachment.... The joke memo had been written on Harvard admissions-office stationery, during the earlier investigation. It was purportedly from an associate director of admissions and parodied the admissions officer downplaying an Asian American applicant’s achievements. The memo denigrated “José,” who was “the sole support of his family of 14 since his father, a Filipino farm worker, got run over by a tractor,” saying, “It can’t be that difficult on his part-time job as a senior cancer researcher.” It continued, “While he was California’s Class AAA Player of the Year,” with an offer from the Rams, “we just don’t need a 132 pound defensive lineman,” apparently referring to a slight Asian male physique. “I have to discount the Nobel Peace Prize he received. . . . After all, they gave one to Martin Luther King, too. No doubt just another example of giving preference to minorities.” The memo dismissed the fictional applicant as “just another AA CJer.” That was Harvard admissions shorthand for an Asian American applicant who intends to study biology and become a doctor, according to the trial transcript.

Fitzsimmons e-mailed Hibino back, “I’m stunned!” Fitzsimmons apparently believed that the admissions officer whose name was on the Harvard stationery had actually authored the memo. She “passed away a few years ago and I’d forgotten that she had such a sense of humor,” he wrote. “We’ll ‘de-construct’ at lunch. Where should we go?” Hibino wrote to clarify, “No, no! I did that from purloined stationery from your shop! Pretty convincing, huh?!!!!! I forget—are we getting together here or there?”....

Hibino and Fitzsimmons are still around and both declined to comment on this article. 

Judge Burroughs excluded the memo as irrelevant because Fitzsimmons' reaction was ambiguous. She said: “It has the potential to be explosively prejudicial, not to me because I take it for what it is, but in terms of the external world’s response to this.... At some point, I feel for the guy.” 

50 comments:

Robert Marshall said...

What a knee-slapper!

The no-doubt pro-DEI federal official, doing a little wink-wink-nudge-nudge-ha-ha with the Harvard Dean of Admissions, the man who is in charge of disemboweling as many Asian applicants as possible. "Look, there goes another no-personality slope-eye! Har-de-har-har. Let's find a black guy to take his place."

The more I hear and see from these DEI'd-in-the-wool racists who populate our universities and our government, the more I hate them. What an awful infestation!

Expat(ish) said...

What strikes me here is that our supposed betters are hiding the fact that they did the exact racist sh*t we did and are still paying for as deplorables.

Again. And as usual.

-XC

Pete said...

Boy, they (the Judge, Harvard, U.S. government officials, etc.) really do feel like they deserve to run the world, and to hell with all us plebeians.

NorthOfTheOneOhOne said...

I may be a bit dense, but perhaps the parody was written to prove a point? Also, Hibino appears to be a Japanese surname.

Sebastian said...

"At some point, I feel for the guy."

And there you have it. Several things, actually. Progs protect progs. Feelz rule. Asians be damned.

But the real reason for not exposing the "parody" is that it would have made the judge's decision look more egregiously wrong.

Greg the Class Traitor said...

Why would protecting this man, who exercised federal power, outweigh the interest in finding out about his bias?!

Are you really that clueless?

He was mocking Harvard. The Judge tried to hide it because that judged ruled in favor of Harvard's bigoted policies, and the joke makes the judge look bad, too

The joke memo had been written on Harvard admissions-office stationery, during the earlier investigation. It was purportedly from an associate director of admissions and parodied the admissions officer downplaying an Asian American applicant’s achievements. The memo denigrated “José,” who was “the sole support of his family of 14 since his father, a Filipino farm worker, got run over by a tractor,” saying, “It can’t be that difficult on his part-time job as a senior cancer researcher.” It continued, “While he was California’s Class AAA Player of the Year,” with an offer from the Rams, “we just don’t need a 132 pound defensive lineman,” apparently referring to a slight Asian male physique. “I have to discount the Nobel Peace Prize he received. . . . After all, they gave one to Martin Luther King, too. No doubt just another example of giving preference to minorities.” The memo dismissed the fictional applicant as “just another AA CJer.” That was Harvard admissions shorthand for an Asian American applicant who intends to study biology and become a doctor, according to the trial transcript.


IOW, that "joke" showed the reality of Harvard's bigotry, and the judge's bigotry

And that's why the judge tried to hide it

Michael K said...

The judge seems to have less "feeling" for the Asians discriminated against.

rhhardin said...

Always go with the joke.

Richard Dolan said...

Very unfortunate how badly the trial judge botched these rulings. There is a strong presumption against sealing any part of a trial record (or any other proceedings in a court bearing on the exercise of judicial power), which a desire to avoid adverse publicity or negative commentary is plainly insufficient to overcome. That the trial judge did so in a case in which she clearly knew that the judicial decision-making would be viewed through a heavily politicized lens was really poor judgment.

gspencer said...

“We’ll ‘de-construct’ at lunch. Where should we go?”

"How about some fried chicken and watermelon? That'll get me in the mood. The committee has a bunch of those folks to go through this afternoon."

n.n said...

Diversity (e.g. racism) including affirmative discrimination.

Diversity of individuals, minority of one.

Big Mike said...

[Judge Allison Burroughs] said: “It has the potential to be explosively prejudicial, not to me because I take it for what it is, but in terms of the external world’s response to this.... At some point, I feel for the guy.”

Doesn't it have the "potential to be explosively prejudicial" because beneath the alleged humor there is real prejudice? Does Judge Burroughs "feel for the guy" because it's the sort of thing she might write herself? Or if she received it, would she laugh instead letting the letter writer know that it's out of line?

boatbuilder said...

I'm confused as all get out. Why didn't Gersten just ask the S.F.F.A for the memo? Or her employer, Harvard?

She seems to think that her "reporter" and "researcher" status outweigh's the judge's authority to control her courtroom. It sounds like evidence that the judge deemed irrelevant and prejudicial (it wasn't written by Harvard). A sidebar is sort of like an in-chambers discussion, and isn't supposed to be "public". The memo is the memo. The memo is not "the sidebar."

Birches said...

There's no way Harvard is going to win this case.

Left Bank of the Charles said...

“Why would protecting this man, who exercised federal power, outweigh the interest in finding out about his bias?!”

Althouse and Judge Burroughs are playing the same game. This rather long blog post avoids mentioning the salient fact that the federal official Thomas Hibino is an Asian American who earlier in his career worked at the Japanese American Citizens League.

Why did Hibino write a parody memo on purloined Harvard stationery that played with Asian American stereotypes? Was it “a very poor, ill-advised, and in bad taste joke?” Or was he needling the Harvard admissions director, William Fitzsimmons? Why was Hibino making lunch plans with Fitzsimmons? Was Hibino reminding Fitzsimmons that he was operating under the watchful eye of an Asian American federal official?

If Harvard loses its case in the Supreme Court as expected and the failure to admit this Easter egg into evidence is cited in support of that decision, Hibino will be the winner.

Achilles said...

Harvard is a blatantly racist institution.

Our entire regime is made up of these racist sexist mediocrities.

Left Bank of the Charles said...

“The memo dismissed the fictional applicant as “just another AA CJer.” That was Harvard admissions shorthand for an Asian American applicant who intends to study biology and become a doctor, according to the trial transcript.”

How do you get CJer out of intends to study biology and become a doctor?

RJ said...

The Ivy League: always racist, just changing the target of their racism.

Amadeus 48 said...

Yup. Those jokers are the judge's kinda folks. Seth Waxman's kinda folks, too. Not like those faceless Asians who work their butts off to get somewhere in life.

I wonder how little Jeannie Suk's parents would have felt about that?



rcocean said...

WHy are these federal judges given free rein to "Seal" anything they wish? Their ability to do this, should be serverly restricted. We, the tax payers, are paying for these public trials, it should ALL be made public.

rcocean said...

WHy are these federal judges given free rein to "Seal" anything they wish? Their ability to do this, should be serverly restricted. We, the tax payers, are paying for these public trials, it should ALL be made public.

rhhardin said...

It doesn't show bigotry to me, just a sense of humor.

Narayanan said...

are not jokes layman equivalent of hypothetical in legal wrangleings

so is this a joke or hypothetical?

robother said...

Wow. Sometimes the Deep State really shows itself as the Derp State. A couple of mediocrities chuckling about their power over their intellectual superiors, with another mediocrity, the judge, to cover for them.

Old and slow said...

It's not so much evidence of bigotry as it is poor judgement. You simply don't send things like this via email unless you feel very secure and untouchable indeed. As I said, it shows very poor judgement and a certain degree of entitlement. It was actually pretty funny, and not clear exactly what the intent was without a bit more context. The judge should not have tried to hide it.

Greg the Class Traitor said...

Left Bank of the Charles said...
Why did Hibino write a parody memo on purloined Harvard stationery that played with Asian American stereotypes? Was it “a very poor, ill-advised, and in bad taste joke?” Or was he needling the Harvard admissions director, William Fitzsimmons?

Congratulations, Left Bank of the Charles, unlike far too many here, including our hostess, you actually figured out what was going on.

Here's a link to an entire article by someone who also figured out that the joke was slamming Harvard, not agreeing with their bigoted, racist policies

https://hotair.com/john-s-2/2023/03/23/behind-the-scenes-of-the-harvard-affirmative-action-case-a-joke-about-asian-applicants-n538968

Aggie said...

So the social leaders and vested officials in the Affirmative Action cause are banal, unimaginative creatures that snicker over stereotypes and inadvertently tend to reinforce their prejudices and preserve their position with their own heavy-handed abuses of power?

Wow - how times have changed since the Bad Old Days of Racism and Patriarchy.

tim maguire said...

If the memo is a public document, then it’s hard to see the public interest in sealing the discussion of the memo.

TheDopeFromHope said...

“There are a lot of things in those sidebars that were really just meant to be out of the hearing of the jury...."

Does this judge have dementia like her fellow racist, anti-semite Joe Biden? How do you forget you presided over a 15-day bench trial (non-jury)?

Patrick Henry was right! said...

Who can possibly still defending affirmative action? Because it's, like really hard to be LeBron James' kid, or Tyler Perry's kid???

tim maguire said...

Greg the Class Traitor said...
"Left Bank of the Charles said...
Why did Hibino write a parody memo on purloined Harvard stationery that played with Asian American stereotypes? Was it “a very poor, ill-advised, and in bad taste joke?” Or was he needling the Harvard admissions director, William Fitzsimmons?"

Congratulations, Left Bank of the Charles, unlike far too many here, including our hostess, you actually figured out what was going on.


Really? I thought it was completely obvious what was going on. Right there in the headline it's described as a parody.

Václav Patrik Šulik said...

This entire article is so damning - that one excerpt is bad - but the entire thing shows the veniality and corruption of the system. The Harvard administrators for intentionally discriminating based on race, the "Civil Rights" official who makes a joke of this (Thomas Hibino retired in 2014 as a GS-15 with a salary of $157,100), and District Court Judge Allison Burroughs (an Obama appointee) who ruled in favor of Harvard AND covered up this material. It's shameful at best.

TheDopeFromHope said...

For all you trial lawyers out there: Is it standard practice for the trial judge to keep sidebars out of the trial record in bench trials?

boatbuilder said...

"“In response to Harvard’s letter, I think that the secret sauce will stay under seal, which I suspect is what all these news medias really want.”

Is this just bad grammar? If not, is she saying that the "news medias" don't really want the secret to be told?

Weird, but the "news medias" in Boston is The Globe, so that may be exactly what she is saying.

Krumhorn said...

Of course, the judge was appointed by Our Savior, Obummer.

“this was the moment when the rise of the oceans began to slow and our planet began to heal ..."

- Krumhorn

roundeye said...

As a rule, I would not want my sidebar remarks made part of the record. However, this was part of an argument and there was a ruling. Can't seal that, especially on appeal...except if the plaintiffs did not perfect the record.

MikeR said...

Actually it sounds very funny.

Left Bank of the Charles said...

What could CJ mean?

Chief Justice
Cranberry juice
Ceiling joist
Claim jumper
Code jockey
Caffeine junkie
Contact juggling
Crazy jackass
Circle jerk
Christ Jesus

Expat(ish) said...

I think a lot of commentators are very involved in what kind of 3D chess move this was - writing the memo, hiding the memo, pretending to think it was or wasn't real, etc.

Let me shorten this for ya'll a bit.

Had I sent this memo contemporaneously at Big Tech and anyone heard about it, I'd have been fired. Immediately. Ten years before that - fired too.

If I'd written this memo way back when and my current employer found out about it, I'd be fired. If I applied for a job and this sh*t came up in my background check, they'd rescind the verbal job offer. (This does happen.)

I don't really care if Harvard discriminates against left handed Peruvian polo players with polio. I really don't.

The real story to me is that her-derp, our betters can do ANYTHING with impunity. Even get exposed. It sucks being a deplorable, I'm gonna have a talk with my parents about why the didn't plan better.

-XC

Balfegor said...

I think Hibino, like many Asian Americans, is probably just resigned enough to the persistent reality of anti-Asian discrimination that he feels comfortable joking about it. It's not Asians who are the butt of that joke -- it's Harvard. And it is somewhat funny, though embarrassing for Harvard, and probably uncomfortable for Hibino to have to explain why it's funny (because he's parodying a real tendency on Harvard's part) and, perhaps more importantly, why the federal government decided not to crack down on Harvard when they could.

Left Bank of the Charles said...

I’m wondering if CJer could mean something offensive, like Copycat Jew. That, of course, is at the root of the complaint, that college admissions officers have been treating Asian Americans like they used to treat Jewish Americans.

Lyle said...

Didn't FDR in the 20's get Harvard to lower the percentage of Jewish students at Harvard? FDR and a coterie of wasp affluent alumni.

wendybar said...

Progressive Diversity IS RACISM. They hide behind cute little slogans.

lamech said...

It might be worth it for someone (perhaps a law student) to do make a FOIA request seeking the emails and memo as a federal record, on the chance that Hibino sent it from a U.S Department of Education account.

Ernest said...

There could be another factor here. If Mr. Hibino is Japanese, it is in very poor taste for him to make the subject of his joke a Filipino - given the history of Japanese-Filipino relations. See WW2.

Lurker21 said...

One of Harvard's former consultants (Julie J. Park of College Park, MD) made much of the difference between public schools (which most of the Asian-American applicants attended) and private schools (which other Harvard applicants attended). Guidance counselors at private schools have fewer students and devote more time to them, which results in applications that are more attractive to Harvard. Hibino's fake student stands a good chance of getting into Harvard, and would provide fodder for many self-congratulatory articles about Harvard, but many Asian applicants wouldn't.

That doesn't seem like an adequate explanation, but the controversy opens up a real can of worms. Harvard would say that it doesn't want to become another pre-professional diploma mill like Johns Hopkins. Given what Harvard has become, that's a weak excuse, but it does suggest some of the difficulties supposedly elite schools have between maintaining their exalted self-image and providing equal access to qualified applicants.

Greg the Class Traitor said...

tim maguire said...
Greg the Class Traitor said...
Congratulations, Left Bank of the Charles, unlike far too many here, including our hostess, you actually figured out what was going on.

Really? I thought it was completely obvious what was going on. Right there in the headline it's described as a parody.


Anyone writing as if the guy who wrote the parody APPROVED of what Harvard was doing completely missed the point.

And so far as I can tell, >90% of the comments here are by people assuming he was "laughing with" Harvard, not "laughing AT" Harvard

Balfegor said...

Re: Greg the Class Traitor:

And so far as I can tell, >90% of the comments here are by people assuming he was "laughing with" Harvard, not "laughing AT" Harvard

In a sense, he was laughing "with" Harvard, because he was literally exchanging notes with the man who was overseeing these discriminatory policies at Harvard, and the man found it humorous too. If anything, though, that just makes it more embarrassing for Harvard: their officials chortle along merrily when people joke about their flagrantly discriminatory conduct.

It's like if you joked about a company flyspecking personnel records for Black employees to do whatever they could to avoid promoting any Black employees, and then their HR director wrote back, "Haha, nice!" You're both laughing, but one of you probably shouldn't be . . . except then the judge sided with Harvard, and tried to conceal the joke from the public, so perhaps I'm just a naive fool. But I still hope we shall have the last, longest laugh at the end before the high court.

SciVo said...

Re: CJer: I made some web searches last night of Harvard CJ and Harvard pre-med, attacking the question from both directions, and found two possibilities. They're both a real reach, but it's all I've got.

For the first, AA CJer could be African-American with an interest in Criminal Justice. In this interpretation, the joke is multi-layered. It only works if black applicants to Harvard in 2012 were submitting essays on social justice with a focus on racial disparities in police encounters and incarceration, to the point that it was a trite stereotype, while Harvard treated each one like a unique and special snowflake.

For the second, CJ could be "cool job." A Harvard pre-med student used that term in a blog post cheering on prospective students that might share her goal, and even third-tier regional liberal arts colleges are aversive to "vocational" degree plans. This interpretation depends on different unknowns, namely whether Asian-American applicants to Harvard commonly use the term "cool job" specifically just for the practice of medicine.

As I said, they're both a reach. Best I could do. Hope someone with actual inside knowledge can shed some light on this mysterious acronym.

Greg the Class Traitor said...

Balfegor said...
Re: Greg the Class Traitor:

And so far as I can tell, >90% of the comments here are by people assuming he was "laughing with" Harvard, not "laughing AT" Harvard

In a sense, he was laughing "with" Harvard, because he was literally exchanging notes with the man who was overseeing these discriminatory policies at Harvard, and the man found it humorous too. If anything, though, that just makes it more embarrassing for Harvard: their officials chortle along merrily when people joke about their flagrantly discriminatory conduct.


He was literally exchanging notes, saying "you guys are a bunch of racist pigs and are completely full of shit."

If the Harvard guy was laughing along with that, it's because he's not ashamed of being a racist pig who's full of shit

Whit would make him like all modern DEIers