While Bill Lee of Wilmer Cutler Pickering Hale and Dorr has become practically a household name for representing Harvard University in the high-profile case over its college admissions policies (click here for my recent Q&A with Lee), most of us know little about opposing counsel—the team of lawyers who are sometimes described in the press as “the four former Clarence Thomas clerks.” (The four are Adam Mortara and John Hughes, partners at Barlit Beck; and William Consovoy and Patrick Strawbridge, partners at Consovoy McCarthy Park.)
I decided to find out more about these lawyers who represent Student for Fair Admissions (SFFA), the group suing Harvard for allegedly discriminating against Asian-Americans by setting a higher admissions bar for them. I caught up with Hughes and Mortara, the two who argued the case before Federal Judge Allison Burroughs. Below is an edited version of our phone conversation:
Do you believe diversity is a worthy goal? Or should it be irrelevant in high-stakes competition?
AM: We support diversity on college campuses—all types of diversity. The Supreme Court has ruled that all types of diversity are worth pursuing—just not one type of diversity. But racial diversity is the hallmark of Harvard’s admission process.
Is your goal to get rid of race in college admissions?
AM: SFFA’s website’s stated goal is to end the use of race for admissions in higher education. But the law today is that race can be used—that’s what the Supreme Court said. Our case is about whether Harvard exceeded its bounds in its use of race.
Your client advocates a race-blind policy. Wouldn’t that kill racial diversity?
AM: Evidence shows that the answer is no. We put on an expert witness, Rick Kahlenberg [fellow at The Century Foundation, a progressive think tank] who personally doesn’t agree with SFFA. He testified that if Harvard increased consideration for the economically disadvantaged and got rid of the advantage for children of alumni, major donors and recruited athletes, Harvard can end up with a racially diverse class.
Speaking of sacred cows—legacies, jocks and children of big donors—it came out during the trial that they get a huge advantage. Legacy candidates are admitted at a 30 percent rate, while recruited athletes have an 80 percent rate—two groups that take away a sizable chunk of seats from Asian-Americans. Those preferences are notable, considering that Harvard’s general admit rate is under 5 percent.
AM: Before this case, no one knew how massive the preference was for this group. Harvard has an endowment that’s larger than the GDP of most nations on earth. They could be a more socially minded university. They shouldn’t have a pay-to-play policy, and they shouldn’t stick a pan out for more money. Oxford and Cambridge do not have legacy preferences, nor Caltech.
Wow. You guys sound like socialists. Do you think there’s any appetite to get rid of these privileges?
AM: Probably not. But you have to remember that the legacy system massively disadvantages Asian-Americans, and the legacy system overwhelmingly benefits whites.
JH: Harvard’s own experts said whites have a multidimensional advantage. We were shocked by that. That’s also true in sparsely populated states, where higher scores are required of Asians.
To me, the big surprise in the trial was that whites, rather than other minorities, are taking seats away from Asians in the admissions process. But the press describes the case as pitting minorities against each other.
AM: It wasn’t the press but Harvard that put that out there. The line that this case is about the future of affirmative action is Harvard’s. The case is about the atrocity against Asians.
Many Asian-Americans were disturbed by the low personal rating scores that are assigned to Asian candidates in the Harvard admissions process. Do you think that’s a sign of bias?
AM: Two weeks before the trial, Harvard changed its guidance on personal ratings. Essentially, it said, “don’t penalize applicants because they lack extroversion.” That’s Exhibit 1 that Harvard knew what was going on. [Harvard admissions dean] William Fitzsimmons saw Harvard’s internal study in 2013 about how Asians were disadvantaged by the admissions system. Then, when the trial was about to start, the rank and file sought to fix the problem. They’re not bad people, but everyone is subject to biases. Harvard’s leadership wants to keep it as white as possible by having just enough minorities because they don’t want Harvard to look like another Caltech.
So you think Harvard would have a stronger case if it never commissioned the internal reports?
JH: Yes. Their own office looked at the issue of how Asians are affected, and the dean of admissions chose to do nothing. I know of no other university that investigated the issue but did nothing about it. This is unique to Harvard.
What kind of reaction are you getting about your role in this case?
JM: I’ve gotten over 200 emails from Asian-Americans thanking us in sincere and intimate terms about our representation.
JH: I’ve gotten the same. People are supportive because everyone wants a fair shot for their kids to get into Harvard.
Since you’re representing a conservative organization that’s associated with anti-affirmative action efforts, have you received any disquieting reactions—like support from racists?
AM: The only disquieting thing is the casual racism of people like Bill Lee. Some people say that Asian-Americans only make up 5 percent of the population and that Harvard is already 20 percent Asian-American. Some say they’re getting their fair share, so what’s the big deal? It matters because it’s a matter of fairness, and they shouldn’t have to outperform themselves.
Contact Vivia Chen at firstname.lastname@example.org. On Twitter: @lawcareerist.