Almost every time I'm with a group of Asian-American lawyers, the talk inevitably turns to the Harvard University admissions case in which the Big-H was accused of discrimination against Asian-American applicants. The headline-grabbing trial took place this fall, but what's the upshot?
Rest assured, it's still alive. It's in a quiet phase, as both sides await federal judge Allison Burroughs' decision, which is expected sometime in the spring or summer of 2019.
As you might recall, Harvard got hit with a lawsuit by Students for Fair Admissions, a group that's against race-based admissions. (The group was founded by conservative Edward Blum, who's behind several suits challenging affirmative action.) SFFA's central argument is that Harvard discriminates against Asian-Americans by setting a higher bar for them in order to gain admission.
As an Asian-American and a parent of a child in the throes of applying to colleges, I'm naturally intrigued by this case. So I decided to go directly to the source to get the inside scoop: the lawyers who argued the case.
Over cups of cappuccino at New York's Regency Hotel on a blustery afternoon, I met with Harvard's lawyer William Lee, a partner and former co-chairman at Wilmer Cutler Pickering Hale and Dorr, to discuss his views. Below is an edited version of that conversation, plus additional exchanges over the phone and email. (In my next post, I’ll talk with Barlitt Beck partners John Hughes and Adam Mortara, lawyers for SFFA.)
How did you—an intellectual property litigator—get tapped to represent Harvard on this high-profile trial? Harvard had hired my partner Seth Waxman for the case because it might go the Supreme Court. But then-president of Harvard Drew Gilpin Faust called me and said, "Bill, why don't you handle the trial part?" I had been involved with Harvard for a number of years: I was a senior fellow of the Harvard Corporation, then chair. During the trial, we had an old Chinese guy, an old Jewish guy, a young woman partner Felicia Ellsworth and an African-American partner Danielle Conley. The other side had four Clarence Thomas clerks—all white!
This case is full of hot-button racial issues. Some say the case is an attempt to destroy affirmative action by pitting Asian-Americans against other minorities. Do you see it that way? It’s a risk that could occur. But, you know, the Asian-American response is not monolithic. Some feel that they're being used as a vehicle to attack other minorities. Others feel differently. What it shows is that Asian-Americans are diverse, robust and open to different views.
So you don't see a nefarious intent behind the lawsuit? I don't think there's nefarious intent. But I do think the people bringing the suit would like to return to a day that’s long passed. The same people who might have thought it odd for Harvard to offer me a spot back in 1968 are probably the same ones who want to drastically decrease the number of African-Americans and Hispanics at Harvard today.
I think Asian-Americans are struggling with this case. Many support diversity and affirmative action, but the information that came out of the trial suggests that Harvard holds Asians to higher standards. For instance, it came out that a white high school junior from a rural area with a 1310 on the PSAT will get invited by Harvard to apply, while an Asian girl needs a 1350 and an Asian guy needs a 1380. Opposing counsel was being unfair. They picked one year in which sparse country whites had lower scores than Asian-Americans. They also ignored the fact that it's the ACT not the SAT that students in that group tend to take. In other years, the scores for Asian-Americans were lower than whites. You have to look at the evidence carefully.
What about the fact that Asians get consistently low ratings from Harvard on personality? Doesn't that suggest bias? The personal rating is based on the student’s essay, recommendation by the guidance counselor, other recommendations, alumni interview or staff interview and faculty review. The personal rating is based on input by a variety of people.
But doesn't that low personality rating go to the stereotype that Asians are not outgoing or likable? Asians came out ahead in academics and extracurricular. And their score on personality was not that different from whites. I don’t think the personal rating requires you to be outgoing. I don’t know where that idea comes from. Just walk around Harvard Yard, and you'll see students who are outgoing, and some who are quiet and contemplative—and that’s true for all ethnicities.
What kind of reaction are you getting from the public about this case? I've gotten a significant amount of emails, and 95 percent are supportive. I appreciate people who contacted me to tell me their support as well as those who disagree. I did hear from a lawyer in Texas who called me a "stupid, little Asian."
Wow. Well, at least this person didn't say "stupid, little Oriental." Any blowback from Asian-Americans? I have an Asian-American friend who calls you a traitor. She asked me, “How can Bill Lee undertake such a representation?” I've had discussions with Asian-Americans who disagree with me, and I'll be happy to talk with your friend. Look, each application that comes in is read, first, by the person assigned to that region, then it goes to a committee of seven people, then it goes to the full committee where 40 people are sitting in a room. Folks calling me a traitor would have to believe that a process that involves voting by 40 people results in discrimination against Asians.
Are you feeling upbeat that you'll prevail in this case? No, not upbeat. I think the case raises an important issue—one that's now being discussed openly. The question of whether race can be used in college admissions is a critical one. We asked for a trial so that facts would be on record. Harvard wanted a trial because we think facts count. It's important that people base their conclusion on facts, particularly in this current climate. I think Harvard has been honest and open. What’s missing is generous listening.
Contact Vivia Chen at firstname.lastname@example.org. On Twitter: @lawcareerist.