BFV Perspectives, Noncompete & Trade Secrets, | Oct 25, 2018

Is Harvard’s Admissions Process a Trade Secret?

Harvard University’s admissions practices are on trial in federal court in Boston. The plaintiffs in the case accuse Harvard of setting a restrictive quota for the number of Asian-Americans students it accepts.  The University denies the claim. This case has a little bit of everything from politics to college admissions to issues of class and privilege … and of course … Trade Secrets!  

You might ask how a case about college admissions could involve trade secrets. One of the hotly contested issues in the case is how much of Harvard’s admissions process will be disclosed to the public during the course of the trial.  The public’s right of access to information exchanged in discovery and introduced into evidence in court is outside the scope of this blog entry (and is a highly controversial issue).  However, every trial, even ones involving highly sensitive trade secret and confidential information, requires balancing the public’s right of access to evidence presented in court with the privacy and business interests of the litigants and other witnesses.  Not surprisingly, Harvard has argued vociferously against public disclosure of key elements of its admissions process. 

Harvard argues that two interests protect the information being admitted into the court record. The first is third-party privacy interests (the privacy of the applicants).  That interest is not usually one that arises in the trade secret context.  Harvard’s second argument is more relevant here: business information that might harm a litigant’s competitive standing may also be protected from disclosure. 

In making its arguments in favor of shielding evidence regarding its admissions process from the public’s view, Harvard admits that the commercial interests at stake in this case differ from the interests in cases concerning for-profit companies. Nevertheless, Harvard argues that they are no less legally compelling.  Harvard argues that its commercial interests include (1) preventing applicants from attempting to “game the system” by modifying their conduct or their applications to conform to what they believe Harvard wants from them; (2) preventing the college counseling industry from using what would otherwise be non-public information to help well-resourced applicants at the expense of applicants with lesser access to information and advice; and (3) preventing other universities from using Harvard’s information to shape their recruiting messages to potential applicants. 

Harvard appears to have met with mixed success in its efforts to shield this information from public disclosure. Most of the information that has been kept from public disclosure has been the result of stipulations based on agreements reached with the plaintiffs.  However, in her summary judgment order, Judge Allison D. Burroughs provides a fairly detailed description of the Harvard admissions process.  This order is publicly available.  Harvard is probably not thrilled with this information now being public, particularly as a result of litigation it did not initiate or want.

Unfortunately, there do not appear to be any rulings in the case that provide any significant guidance for protecting trade secrets in cases in which those trade secrets constitute relevant and admissible evidence.  However, it is evident from Judge Burroughs’s order on the parties’ summary judgment motions that many details about Harvard’s admissions process will be revealed at trial, particularly through the expert testimony each side intends to present.  While the transcript of the trial is not yet fully available, the media has been eagerly reporting on every detail of the process disclosed during the trial.  Although Harvard may be able to keep some of the process secret, much of it is likely to be out in the public domain as a result of this lawsuit and trial.

One thing is certain: Harvard’s level of success in arguing that portions of its admissions process merit trade secret protection can either pave the way or halt expansion of trade secret protection in unexpected contexts.

BFV Perspectives, Noncompete & Trade Secrets, | Oct 25, 2018
Benjamin I. Fink
Benjamin I. Fink

Benjamin Fink is known for his work in noncompete, trade secret and competition-related disputes. A shareholder at Berman Fink Van Horn, Ben concentrates his practice in business and employment litigation.