WILMERHALE October 6, 2017 Seth P. Waxman +1 202 053 6800 By E-mail +1 202 663 6363 seth.waxman@wilmerhalecom John M. Gore, Acting Assistant Attorney General Civil Rights Division US. Department of Justice 950 Ave. NW Washington, DC. 20530 Dear Mr. Gore: I write in response to your letter of September 20, 2017, notifying Harvard University that the Civil Rights Division has commenced a Title VI investigation of Harvard?s undergraduate admissions practices. This letter memorializes the points made by my partner, Felicia Ellsworth, in her discussion earlier today with your colleague, Matthew Donnelly. As a recipient of federal funding, Harvard is well aware of its obligations under Title VI and other statutory and regulatory requirements, takes those obligations seriously, complies with them, and cooperates with all reasonable efforts to audit its compliance. For the reasons Harvard explained when we met on September ll, and that we repeat below, the opening of an investigation in the current circumstances is, to our understanding, so outside ordinary practices that Harvard is obliged to clarify the authority and rationale for the Department?s decision. In particular: I As you know, the Department?s Title VI regulations require it to ?make a prompt investigation whenever a complaint indicates a possible failure to comply with? Title VI and the regulations. 28 C.F.R. 42.107 (emphasis added). Yet, according to widespread media reports con?rmed by the Department, the complaint to the Department that prompted this investigation is some two and half years old. It is exceptionally unusual for the Department to resurrect a complaint filed nearly two and a half years earlier. 0 The Department?s decision to launch an investigation now is even more unusual because, as you know, identical issues are being litigated in federal court. Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, No. l4-cv?l4176 (D. Mass). The federal action was ?led nearly three years ago. Extensive fact discovery is now complete, and expert discovery is underway. As the Division?s Title VI Investigation Procedures Manual observes, funding agencies commonly decline to investigate an administrative complaint where ?[l]itigation has been filed raising the same Wilmer Cutler Pickering Hale and Dorr LLP, 1875 Avenue NW, Washington, DC 20006 Beijing Beriin Boston Brussels Denver Frankfurt London Los Angeles New York Palo Alto Washington WILMERHALE John M. Gore October 6, 2017 Page 2 allegations.?1 That is why the Department of Education declined to investigate the same complaint that is the apparent basis for the Division?s current investigation. 0 The Of?ce for Civil Rights, within the Office of Justice Programs (OJP), is ?[t]he principal of?ce for receiving discrimination complaints against recipients of federal assistance from the Justice Department.?2 It is unusual for the Civil Rights Division to investigate whether a recipient of OJ funding violated Title VI. In light of the nature and timing of the Department?s actions, Harvard therefore asks for the Department?s responses to the following inquiries about the basis for the Division?s investigation: 1. Please identify the federal grants to Harvard University that in your View support the Department of Justice?s jurisdiction to investigate Harvard?s undergraduate admissions practices. 2. To the extent any of the grants originated from a component of the Department of Justice other than the Civil Rights Division, please identify the source of the Division?s authority to investigate Harvard?s compliance With conditions of that grant. 3. Your letter of September 20, 2017, states that ?Harvard University signed contractual assurances agreeing to permit the Department to examine records and access other sources of information and facilities.? Please provide copies of any such assurances. 4. Your letter of September 20, 2017, states that the Department of Justice has received ?complaints that Harvard University is discriminating against Asian Americans in its admissions.? Please provide a copy of each complaint; Harvard is willing to agree to receive these complaints with the names and identifying information of the complainants redacted. 5. Please provide a copy of the investigative case ?le for each complaint identi?ed in response to question 4, including in particular c0pies of all external correspondence from the case ?le. Please also indicate whether a decision was previously made that any of the complaints did not warrant investigation. US. Department of usticc, Investigation Procedures Manual for the Investigation and Resolution of Complaints Alleging Violations of Title VI and Other Nondiscrimination Statutes (Sept. ?998). 2 US. Department of Justice, Protecting Against Race, Color, and National Origin Discrimination by Recipients of Federal Funds, i see also Of?ce for Civil Rights, Of?ce of Justice Programs, (?The OCR is the principal DOJ of?ce that enforces Title V1 through the administrative process?). WILMERHALE John M. Gore October 6, 2017 Page 3 6. The Division has in the past published a Title VI Investigation Procedures Manual that accompanied its Title VI Legal Manual. Please provide a copy of the operative Investigations Procedures Manual, if the September 1998 version is not the operative version. 7. Please provide copies of all written communications regarding Harvard University or the subject matter of this investigation, and agendas or calendar invitations for any meetings or telephone or video conferences regarding those topics, between the Civil Rights Division, or the of?ces of the Attorney General, Deputy Attorney General, or Associate Attorney General, and any of the following: Students for Fair Admissions, Inc.; its representatives, including its outside legal counsel; Edward Blum; the Project on Fair Representation; Roger Clegg; or the Center for Equal Opportunity. In addition, I would appreciate your providing a proposal for how the Division intends to safeguard the con?dentiality of the extremely sensitive information to which it has sought access?information like application ?les that contain deeply private information from high school students from across the country and beyond, and candid evaluations of those students. As you know, the Freedom of Information Act (FOIA) allows interested parties to request access to public records. In fact, the New York Times has already ?led a lawsuit seeking access to records concerning the subject matter of this investigation, and Students for Fair Admissions (the plaintiff in the District of Massachusetts action) has filed a FOIA suit seeking records from the Department of Education. Harvard cannot agree to provide sensitive records to the Division under any conditions that could not guarantee their confidentiality. As this letter re?ects, Harvard believes that there are several issues to address before we turn to the production of any records, and we look forward to your responses to the points we have raised. My colleagues and I would be pleased to discuss these issues with any member of your team. Sincerely, Cc: Matthew Donnelly November 7, 2017 By E-mail Seth P. Waxman +1 202 663 6800 (t) +1 202 663 6363 (f) seth.waxman@wilmerhale.com Matthew J. Donnelly Civil Rights Division U.S. Department of Justice 950 Pennsylvania Ave. NW Washington, D.C. 20530 Dear Mr. Donnelly: Thank you for your letter of October 19, as well as your letter of the same date to my colleague Felicia Ellsworth. We appreciate your responses to some of Harvard's questions regarding the nature of and basis for your investigation. I write to respond to a few of your points, to follow up on the remaining questions in my October 6 letter, and to propose a plan for complying with your information request. As an initial matter, I am surprised that you characterize Harvard's position as "an about-face" from our meeting on September 11. At that meeting, as in your letter, you explained the need for discovery to "facilitate the United States' informed participation as an amicus curiae in the SFFA suit." Notably, in every previous case concerning the use of race in university admissions, the Department has participated as an amicus curiae without ever expressing a need for discovery. We offered nonetheless to make available to the Department, under appropriate assurances of confidentiality, everything that either party relies upon in the upcoming motions for summary judgment (including each party's expert reports). We have not taken any position inconsistent with that; to the contrary, we continue to believe that would be the most sensible approach. Furthermore, while you refer to Harvard's inquiries as "irregular," the inquiries are necessary here because of the Department's irregular decision to investigate a years-old complaint, despite the pendency of litigation addressing identical allegations. It is entirely reasonable for Harvard to seek assurances that this investigation is (as your letter states) "like any other." Indeed, Harvard would be neglecting its obligations to its students and applicants, whose sensitive information the Department is seeking to access, if it did anything less. All that said, I appreciate your forthcoming responses to certain questions Harvard has raised. I hope that you will be able to answer a few additional questions prompted by those responses. First, your letter notes that it is not uncommon for the Civil Rights Division to lead Title VI investigations. But as you also know, the Department's regulations implementing Title VI vest authority to request access to records and conduct investigations in "the responsible Department official or his designee," 28 C.F.R. ?? 42.106(c), 42.107(c), defined as the official "that has been assigned the principal responsibility within the Department for the administration of the law extending" financial assistance to the recipient in question, id. ? 42.102(a). Based on the grants Matthew J. Donnelly November 7, 2017 Page 2 and contractual assurance agreements you have identified, the responsible Department official here is the Assistant Attorney General for the Office of Justice Programs. Your letter states that the Department has delegated the authority to pursue this matter to the Division. We recognize that the Division can (and sometimes does) receive delegated authority from OJP; we are simply making the reasonable request, given the unusual circumstances of this investigation, that the Division identify the date and source of that delegation. See, e.g., United States v. Harris Methodist Fort Worth, 970 F.2d 94, 103 (5th Cir. 1992) (compliance with internal procedures is a factor in assessing the reasonableness of an agency's Title VI review). Second, Mr. Gore's letter of September 20 stated that the Department has received "complaints ... that Harvard University is discriminating against Asian Americans in admissions" (emphasis added). Yet your October 19 letter mentions only one such complaint. Can you confirm that the Department is not investigating other complaints? If the investigation does pertain to other complaints, please provide copies as requested in my October 6 letter. Third, my October 6 letter asked that you provide a current version of the Civil Rights Division's Title VI Investigation Procedures Manual or confirm that the September 1998 version, published online in the past, remains current. Your response does neither. Is the September 1998 version in fact current? Fourth, your letter declines to respond to the fifth and seventh inquiries in my October 6 letter, which requested copies of investigative case files and the Department's correspondence with various individuals and groups, on the ground that "a response could interfere with the investigation." Given the pending litigation, we believe it is particularly appropriate for Harvard to be made aware of communications with outside parties related to the investigation. We therefore reiterate our request for the communications with outside parties set forth in my October 6 letter. In addition, we ask that you clarify whether your response means that, if Harvard were to request the same materials under the Freedom of Information Act (FOIA), the Department would take the position that the materials fall within Exemption 7(A). We note that the Division's Title VI Investigation Procedures Manual advises federal funding agencies that FOIA exemptions cannot "generally be used to deny access to an entire [Title VI complaint] file." Tab 2 of the Investigation Procedures Manual, https://www.justice.gov/crt/tab-2investigation-procedures-manual (visited Nov. 6, 2017). As noted in my October 6 letter, Harvard is committed to meeting its responsibilities under Title VI, the relevant federal grants, and associated law, and to cooperating with all reasonable efforts to evaluate its compliance with its non-discrimination obligations. To that end, despite its concerns about the highly unusual nature of this investigation, Harvard will provide you and your colleagues with access to documents requested by your First Request for Information dated October 19, 2017. Although the regulation contemplates that the Department will review a Matthew J. Donnelly November 7, 2017 Page 3 funding recipient's "books, records, accounts, and other sources of information" on site, 28 C.F.R. ? 42.106(c), we assume you would prefer to review the documents without having to travel to Cambridge, and we are therefore willing to make the documents available during normal business hours on mutually convenient dates at WilmerHale's Washington, D.C. office. Given the focus of your request on the discovery in the SFFA litigation, we will make the documents available as produced in the SFFA litigation--that is, with redactions for relevance, privacy, and privilege/work product protection. For several reasons, we do not think it makes sense to make available the database information that Harvard produced to SFFA. First, review of that information at WilmerHale's office would be impractical. Second, although we do not understand them to be "books [and] records" as defined in 28 C.F.R. ? 42.106(c), and without waiving any rights, Harvard remains prepared to give you access to the expert reports in the SFFA litigation. These reports analyze the database information in detail. If after reviewing the reports you believe you have a need to review discrete additional elements of the database, we would be pleased to discuss whether Harvard is able to provide access to that additional information. To the extent you and your colleagues have a demonstrated need for copies of certain documents--although Harvard does not believe the Title VI regulations and associated contractual undertakings require it to provide such copies--Harvard is willing to explore with the Department whether a confidentiality agreement could provide sufficient assurances that the materials would remain confidential. As you know, the protective order agreed upon by the parties and approved by the Court in the SFFA litigation imposes extensive obligations on the recipients of confidential information, including obligations not to (1) share the information with others, (2) use the information for any purpose other than the litigation, or (3) ascertain the identity of any individual student or applicant. These are the sort of assurances that would be important to Harvard as it seeks to discharge its responsibilities to protect the privacy of students and applicants. We believe the approach outlined above should be more than sufficient to fulfill the objectives you have identified--namely, enabling the Department to assure itself that discovery in the SFFA matter has been fulsome and to determine whether and how to participate in the SFFA matter--while minimizing unnecessary burden either to you or to Harvard. We are happy to discuss our proposal, and your responses to the questions set forth above, at your convenience. Sincerely, /s/ Seth P. Waxman Seth P. Waxman US. Department of Justice Civil Rights Division DJ 1 6 "72 Assistant Attorney Generai 950 Ave, NW - RFK Washington, DC 20530 November 17, 2017 Via email Seth P. Waxman Wilmer Cutler Pickering Hale and Dorr LLP 1875 Avenue, NW Washington, DC 20006 Dear Mr. Waxman: I write in response to your November 7, 2017, letter that came ?ve days after the November 2 deadline for Harvard to comply with the Department of Justice?s ?rst written document request. Rather than provide the documents and materials that the Department requested, your letter again erroneously challenges our authority to investigate Harvard under Title VI of the Civil Rights Act of 1964 and proposes an unacceptable plan to provide the United States restricted access to limited documents. See Letter from Seth P. Waxman, Harvard Counsel, to Matthew J. Donnelly, Civil Rights Division (Nov. 7, 2017) (?Waxman Nov. 7, 2017, Letter?). Nothing in your letter affects, much less eliminates, Harvard?s obligation to provide the requested documents as a condition of its receipt of Title VI funding from the Department. Moreover, Harvard has these documents readily available because it already has produced them to the plaintiffs in Stadentsfor Fair Admissions, Inc. v. President and Feilows of Harvard College (Harvard Corporation), No. l4cvl4176 (D. Mass.) suit). Indeed, at our September 11, 2017, meeting, Harvard suggested that the Department participate as amicus curiae in that case and offered to work collaboratively to provide the Department with access to those documents. Yet in the intervening two months, Harvard has pursued a strategy of delay and has not yet produced even a single document. Accordingly, the Department is left with no choice but to conclude that Harvard is out of. compliance with its Title VI access obligations. The Department therefore is simultaneously serving Harvard with a separate notice of this determination. I. The Department Has Authority To Request the Documents, and Harvard Is Obliged To Comply with Those Requests Your letter does not dispute that Harvard receives Title VI funding from the Department. Your letter also does not dispute that, as a condition of that funding, Harvard agreed to provide the Department with broad?ranging access to documents regarding Harvard?s admissions policy and practices. Your letter therefore makes no serious effort to dispute the dispositive point: that the Department has authority to request the documents it seeks and that Harvard is obliged to comply with those requests. In fact, your letter expresses that ?Harvard is committed to meeting its responsibilities under Title VI, the relevant federal grants, and associated law.? Waxman Nov. 7, 2017, Letter at 2. Your letter nonetheless attempts to side-step Harvard?s Title VI obligations. In particular, while your letter does not challenge the Department?s authority to conduct this investigation, it once again challenges the Civil Rights Division?s involvement in the investigation. This challenge again sails wide of the mark. First, your letter requests the date and source of the Department?s delegation of authority to the Civil Rights Division to conduct this investigation. Id. at 1-2. The authority to conduct this investigation was properly delegated- to the Civil Rights Division before the investigation was opened. That delegation followed the Department?s longstanding internal delegation protocols that govern assignment of Title VI responsibilities. Your colleague Mr. Driscoll may be aware of the protocols in place when he worked for the Division. Second, your letter again requests information on any complaints regarding Harvard?s admissions policy and practices that underlie the Department?s investigation. Waxman Nov. 7, 2017, Letter at 2. The subject matter of the SFFA suit captures the subject matter of any complaints the Department is investigating. Moreover, as the Department previously stated, beyond the publicly?available complaint that the Department already shared with you, the Department will not supply any other complaints it may be investigating because the release may interfere with an active investigation. Letter from Mathew J. Donnelly, Civil Rights Division, to Seth P. Waxman, Harvard Counsel at 2 n.1 (Oct. 19, 2017) (?Donnelly Oct. 19, 2017, Letter?). Third, your letter asks whether the ?Title VI Investigation Procedures Manual? is current. Waxman Nov. 7, 2017, Letter at 2. As I previously explained, that Manual was written to aid other agencies conducting Title VI investigations and does not constrain the Civil Rights Division?s investigations or create any legal rights in any member of the public. Domielly Oct. 19, 2017, Letter at 2. Your request thus misses the point: if you are looking for the current procedures governing the Division?s Title VI investigations, 1 direct you to the Department?s Title VI regulations. Finally, your letter reiterates your previous irregular requests for the Department?s communications with outside groups and our ?investigative case ?les.? Waxman Nov. 7, 2017, Letter at 2. For obvious reasons, the Department of Justice generally does not share its civil investigative case files with the targets of its investigations. The Department therefore will not reSpond to these irregular requests because a response could interfere with the investigation. My understanding is that the Department would give you the same response if you made your irregular requests under the Freedom of Information Act 5 U.S.C. 522, but you may make an of?cial FOIA request through the normal Department procedures if you would like an of?cial FOIA response. II. Harvard?s Proposed Access Plan Is Inconsistent with Harvard?s Obligations and I Improperly Limits the Department?s Rightful Access to Documents Your letter also proposes providing restricted access to a subset of the documents the Department has requested, but your proposal is inconsistent with Harvard?s Title VI obligations and improperly limits the Department?s rightful access to documents. First, Harvard improperly attempts to limit the scope of its production, indicating that it Will not produce to the Department important database information that it already has produced to the private plaintiffs in the SFFA suit. Waxman Nov. 7, 2017, Letter at 3. Harvard, however, identi?es no authority for limiting its Title VI obligations in this manner. Nor could it: this database already has been deemed relevant and subject to production in the private litigation. And expert reports describing that database, see id, are no substitute for the database itself. Second, your proposal also states that, despite the Department?s request for unredacted copies, Harvard will produce only documents with the redactions for ?relevance? and ?privacy? that Harvard used for its production set to the private plaintiff in the SFFA suit. Id. The Department, however, is not subject to those redaction requirements, and nothing in Title VI, the implementing regulations, or the governing law restricts the Department?s access to only portions of documents that the funding recipient deems appropriate. Quite to the contrary: for obvious reasons, Title VI does not allow entities under investigation to dictate what information quali?es as relevant to the investigation. Third, Harvard suggests that it will not provide copies of documents to the Department unless the Department shows a ?demonstrated need for copies of certain documents? and ?explore[s]? entering into a con?dentiality agreement acceptable to Harvard. Id. But Harvard has no right to demand, much less determine, a ?demonstrated need? for the documents that Title VI already requires it to produce or a con?dentiality agreement. Indeed, the Department is under no obligation to, and ordinarily does not, enter into con?dentiality agreements with any entity subject to a Title VI investigation. There is no need to' do so here: as the Department already has explained, the Department routinely protects con?dential information in its investigations, shares Harvard?s interest in shielding private information from public disclosure, and will take all appropriate measures to do so here. Donnelly Oct. 19, 2017, Letter at 3. Indeed, several federal statutes that we previously provided you already protect from disclosure the information that Harvard seeks to safeguard. Id. (citing Privacy Act of 1974, 5 U.S.C. 552; Family Educational Rights and Privacy Act of 1974, 20 U.S.C. 1232g(b)(3)). Your letter, however, omits any mention of those statutes, and offers no explanation as to why they are inadequate to protect con?dential information in this investigation. Finally, Harvard indicates that it will not provide copies of the requested doctunents, but will allow the Division to access the documents at your law ?rm ?during normal business hours on mutually convenient dates.? Waxman Nov. 7, 2017, Letter at 3. If your position is that our Title VI regulations do not require Harvard to allow us to make copies, we have consistently interpreted our own regulations differently and routinely require copies of documents in ottr investigations. Moreover, your proposal is impractical and unnecessary. Having to review voluminous discovery materials on the defendant?s schedule without the unrestricted ability to organize the information would substantially impair our analysis and delay the investigation. Indeed, you even concede, in denying any access to the database information, that review of voluminous information at the law ?rm ?would be impractical.? Id. And Harvard?s proposal breaks with its past practice with the Department of Education; Harvard provided copies of documents for that Department?s similar Title VI investigation in 1990. In all events, the Department is willing to travel to your law firm or to Cambridge to copy and download all of the documents and information that the Department requested in the formats in which the Department requested them. Such an arrangement may reduce the cost in attorney?s fees and time to Harvard. The Department, however, will not allow any such arrangement to justify further delays by you or your client. The United States remains committed to conducting a full, complete, and fair investigation, and to working collaboratively with Harvard to achieve a just and appropriate resolution of this matter. To that end, the Department requested the existing SFFA suit discovery materials, which Harvard previously offered to provide, in an effort to alleviate the burden Harvard would encounter in responding to the Department?s nomial requests for information. Harvard has responded with delays, challenges to our authority to investigate, and a belated, unacceptable proposal to restrict our investigation. The Department hOpes that Harvard will quickly return to its collaborative approach and voluntarily comply with the information requests and the investigation, which is in the best interest of all parties. Sincerely MATTHEWJ. DONNEQC Attorney Civil Rights Division c'c via email: Felicia H. Ellsworth Robert N. Driscoll U.S. Department of Justice Civil Rights Division DJ 1 Assistant Attorney General 950 Ave, NW - RFK Washington. DC 20530 November 17, 2017 Via email Seth P. Waxman Wilmer Cutler Pickering Hale and Dorr LLP 1875 Avenue, NW Washington, DC 20006 Dear Mr. Waxman: I write to notify you of the United States? determination that Harvard is not complying with its Title VI access requirements, and that Harvard?s actions indicate that this noncompliance cannot be corrected by informal means. See 28 C.F.R. At Harvard?s request, several Department of Justice attorneys met with you and other representatives of Harvard on September 11, 2017. At that meeting, Harvard?s representatives offered to work collaboratively to provide the United States with access to materials to which it is entitled under Title VI, the implementing regulations, and the governing law. Harvard, however, subsequently responded to the Department?s informal attempts to obtain documents with delays and challenges to the Department?s authority. The Department therefore sent a formal document request on October 19, 2017, with a deadline for compliance of November 2. You sent a belated response on November 7 that again challenged our authority to investigate Harvard and proposed providing the United States only restricted access to limited documents in contravention of Harvard?s Title VI obligations. We responded separately to that unacceptable proposal today. More than two months have passed since our September meeting, and Harvard has not yet produced a single document. We sincerely hope that Harvard will quickly correct its noncompliance and return to its collaborative approach. In a further effort to secure voluntary compliance, the Department will give Harvard until December 1, 2017, to comply with its October 19 document request. As we indicated in our separate response letter today, Department lawyers are Willing to travel to your law ?rm or Cambridge to copy and download all of the documents and information that the Department requested in the formats in which it requested them. Please be advised that if Harvard does not comply with the document request in full by that deadline, we may file a lawsuit to enforce Harvard?s Title VI access obligations. 28 C.F.R. cc via email: Felicia H. Ellsworth Robert N. Driscoll Sincerely, 7 Meg.? M. Gore Aeting Assistant Attorney General Civil Rights Division