If the Supreme Court finds that Harvard’s consideration of race in its admissions policy is an offense to the Constitution, to which court will the justices be able to turn to give its ruling effect? That question has come into focus as it appears as if remand could require recusal on the part of Judge Allison Burroughs, in whose courtroom the case was first heard.

That reality surfaces after a bombshell report from a professor at Harvard Law School, Jeannie Suk Gersen. In the New Yorker, Ms. Gersen discloses that what Judge Burroughs called an “inappropriate, anti-Asian, stereotypical, poor attempt at a joke” emerged as potential evidence at trial, only to have been kept under seal by the very judge who was tasked with determining whether Harvard discriminated against Asian-Americans applicants. 

The case, Students for Fair Admission v. Harvard, heard in 2018, turns on whether Harvard intentionally discriminated against Asian-American applicants, who received lower “personal ratings” than their white counterparts. Judge Burroughs found for Harvard, ruling that the disparity was “not the result of intentional discrimination” but rather “underlying differences.”

After the case reached the high court, Ms. Suk Gersen requested that private “sidebar” conversations between Judge Burroughs and the lawyers be released “for purposes of knowledge, transparency, and reporting about a case of great public importance.” The press supported her request. 

Harvard has argued for those transcripts to remain under seal, maintaining that they “contain confidential information,” including the “secret sauce” it uses to determine to whom it offers admission. The school argued that “competitors might try to utilize” that information to “their advantage and to Harvard’s detriment.” Judge Burroughs decided to release some, not all, of those conversations. 

It turns out, though, that Judge Burroughs decided to keep under seal what she called at a public hearing a “very poor, ill-advised, and in bad taste joke” that an official at the Office for Civil Rights, Thomas Hibino, sent to Harvard’s dean of admission, William “Bill” Fitzimmons. The jurist acknowledged that the “joke memo” referenced “certain Asian stereotypes” and included “anti-Asian remarks.” 

Judge Burroughs allowed that this discretion was motivated by the “privacy interest” of the “gentleman” who wrote the memo. She told Ms. Suk Gersen that “you won’t be mystified about what was said” and called her “greedy” for requesting the records. Greedy and resourceful, apparently, as she  secured the memo despite Judge Burroughs’s stonewalling.  

The memo itself, Ms. Suk Gersen explains, was written by Mr. Hibino on Harvard stationary about a fictional son of a “Filipino farm worker.” It joked: “I have to discount the Nobel Peace Prize he received” because “after all, they gave one to Martin Luther King, too. No doubt just another example of giving preference to minorities.” Mr. Hibino was tasked with regulating Harvard’s compliance with anti-discrimination law.     

Mr. Fitzsimmons evidently thought the memo was real, inviting Mr. Hibino to “de-construct” it at lunch and asking  “where should we go?” Mr. Hibino wrote back 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?”

Judge Burroughs excluded the memo from trial despite Students for Fair Admissions’s argument to include it as evidence of animus — it argued that the exchange regarding the memo amounted to Mr. Fitzsimmons “laughing along” with its contents. She thought that questioning him about it would be “designed for media consumption and not for any great search for the truth.”

Harvard argued that the memo was “irrelevant.” Judge Burroughs agreed, suggesting that admitting it was a tactic “intended to embarrass Dean Fitzsimmons” and that the “joke” did not help Students for Fair Admission meet its burden of showing intentional discrimination. The colloquy over that bit of evidence comes as the justices are weighing that question among a wider consideration of the use of race in college admissions.

SFFA’s lawyer, Cameron Norris, argued in his opening statement before the Nine that “race is a minus for Asians, a group that continues to face immense racial discrimination in this country.” He added that “what Harvard is doing to Asians, like what it was doing to Jews in the 1920s, is shameful.”  

Should the Supreme Court find, in Justice Neil Gorsuch’s parlance, that Harvard and other schools have “Asian quotas effectively, if not in name,” the case would be remanded back to Judge Burroughs’s courtroom, where Harvard would be required to show that its policy conforms to the new constitutional framework.  

Ms. Suk Gersen writes that during the original trial an email blast sent to the parties was titled “Federal Judge Hides Her Own Painful History of Harvard Rejection.” Its anonymous author argues that because the judge had been rejected from the school, she would be biased against it. 

Judge Burroughs has kept the sidebar conversations concerning her bias under seal. The United States Code requires recusal whenever a judge’s “impartiality might reasonably be questioned.” The Legal Information Institute notes that “what matters is that even if the judge is not biased, the high probability of bias still damages the integrity of the judicial system.”