U.S. Justice Department headquarters in Washington, D.C. Credit : Diego M. Radzinschi/ ALM Media

The U.S. Department of Justice, citing its continuing investigation into discrimination against Asian-Americans in Harvard's admissions policies, urged a federal judge on Friday to provide public access to key materials in a pending race discrimination lawsuit against the college.

The Justice Department told U.S. District Judge Allison Burroughs in Massachusetts that while it may not intervene in the lawsuit, the government may file a “statement of interest” at the summary judgment phase of the case, Students for Fair Admissions v. President and Fellows of Harvard College.

“Given the overlap between this suit and the United States' investigation, this court's resolution of issues presented here may bear on the scope and resolution of the United States' investigation and enforcement of federal civil rights laws,” lawyers from the Justice Department's Civil Rights Division said in the court filing.

In the lawsuit, Students for Fair Admissions alleged that Harvard College has engaged in intentional discrimination against Asian-Americans in its admissions process in violation of federal civil rights law.

The Justice Department, acting on a similar complaint filed by more than 60 Asian-American organizations, is investigating whether Harvard has violated Title VI of the Civil Rights Act of 1964. Title VI prohibits discrimination based on race, color and national origin in programs and activities receiving federal funds. John Gore, a former Jones Day partner, is the acting assistant attorney general of the Civil Rights Division. The Trump administration's nomination of Jones Day's Eric Dreiband is pending.

“We applaud DOJ's support of our efforts to allow the American public access to the record we have assembled during the last three-and-a-half years of litigation. Public access and transparency is the bedrock of our judicial system,” Edward Blum, director of the Project on Fair Representation and an architect of the Harvard suit, said in a statement.

Harvard's lawyers at Wilmer Cutler Pickering Hale and Dorr told the court in a March 30 letter that the parties had exchanged more than 90,000 pages of documents in discovery that had been designated as confidential or highly confidential but only a small fraction would be used in summary judgments briefs. Wilmer's Felicia Ellsworth proposed filing briefs and supporting documents provisionally under seal.

“Harvard understands that there is a public interest in this case and that the public has certain—though not unfettered—interests in access to judicial materials,” Harvard's lawyers told the court. “Those interests, however, must be balanced against the need to protect individual privacy and confidential and proprietary information about the admissions process.”

The Justice Department said Harvard's proposal, if accepted by the court, “would create substantial obstacles to the ability of nonparties to participate in summary judgment—and, more likely, might even eliminate that opportunity entirely.”

Harvard spokeswoman Rachael Dane said in a statement:

“Harvard College is responsible for protecting the confidential and highly sensitive personal information that prospective students—none of whom asked to be involved in this dispute—entrust to us every year in their applications. We are committed to safeguarding their privacy while also ensuring that the public has the access that it is entitled to under the law.”

A coalition of media groups also filed a letter with the court on Friday urging public access to materials in the lawsuit.

“The coalition's concern is not whether Harvard's admission process violates federal civil rights law, but instead that judicial records shedding light on this dispute—which is of exceptional public importance and community interest—remain open to the public,” wrote Sigmund Schutz of Preti, Flaherty, Beliveau & Pachios in Portland, Maine, for the New England First Amendment Coalition, the Reporters Committee for Freedom of the Press, the Massachusetts Newspaper Publishers Association and GateHouse Media.

 

The Justice Department's notice is posted below:

 

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