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Dissecting the Harvard Admissions Case with Bill Lee

The Careerist

October 22, 2019

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The war over affirmative action is bound to get nastier in the next few years, but for the moment William Lee, a partner at Wilmer Cutler Pickering Hale and Dorr, is savoring his win for Harvard University.

Earlier this month, federal judge Allison Burroughs ruled that Harvard’s undergraduate admissions policy, which considers race as a factor, does not discriminate against Asian Americans. The case was brought by Students for Fair Admissions (SFFA), an anti-affirmative action group spearheaded by Edward Blum.

So what’s it like to score a win for the Big-H in such a high-profile trial? And what did Lee think of Burroughs’ long-awaited, 120-page decision? (It took longer than the gestation period for a human baby; the trial concluded last fall and final arguments took place in February.)

Since Lee and his cohort Seth Waxman prevailed, I had little doubt that Lee would say nice things about Burroughs’ ruling. That said, I’ve interviewed Lee numerous times (click here and here) over the years and always found him to be insightful.

But before I get to Lee’s postmortem of the trial, may I share a little nugget from Burroughs’ decision? Guess who ignited the controversy over Harvard’s admission of Asian Americans? New York Times columnist David Brooks. According to Burroughs, Brooks lauded an article by Harvard alum Ron Unz, who accused elite colleges of using “de facto Asian quotas.” Brooks picked up that thread, arguing “that stagnant Asian American representation at Harvard between 1995 and 2011 smelled like a quota system,” says the ruling.

Sorry for the digression, but who would think a columnist could cause so much trouble?

Without further ado, here’s an edited version of my chat with Lee:

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Congrats on the win. I have an Oprah-style question: Was it an emotional experience to try the case as both an Asian American and Harvardian (alum and member of the Harvard Corporation)? 
The fact that I am Chinese American and have deep ties to Harvard made the case special and more challenging in many ways. As a trial lawyer, the key was to set aside those ties and relationships and try the case as best we could.

What did you think of the judge’s ruling? Any surprises? Not for us. We thought the opinion was thorough and comprehensive. She understood the statistical evidence, listened very carefully to the witnesses and evaluated their credibility, looking for consistency. It was instructive that she cited the testimony of Harvard students and alums. She listened to people who lived the experience.

Speaking of lived experiences, your side used a highly personalized approach to address the role of race in admissions, the opposite of what the opposing counsel did. I remember Judge Burroughs asking the SFFA’s lawyers at the closing arguments why they didn’t present an individual plaintiff, and she went back to that point again in her opinion. BakkeGruttner and Fisher [the three major affirmative action challenges] all put forth people who claimed discrimination. But this case didn’t have a single name attached to it—they didn’t identify anyone. SFFA had the full admissions data on 160,000 Harvard applicants over six years and full files on 400 of them, but they didn’t pull a single person out from that pile.

So did SFFA make a strategic boo-boo by not producing a real-life plaintiff? They had fine lawyers who litigated robustly. It was less a question of legal strategy but more about the facts. It was hard to prove that Harvard discriminated against Asian Americans, African Americans, whites, sparse country individuals, or anyone else because the admissions process is designed with checks and balances. The process involves 40 people who sit in a room voting on applicants.

You say Harvard benefited from the facts. But not all the facts that spilled out were flattering. I’m thinking of the big admissions boost enjoyed by athletes and children of alumni, big donors and faculty, the group that’s called A.L.D.C. That’s true. It wasn’t all positive. But that preference for legacies, athletes, etc. was out there, long before the case. It’s on the admissions information page.

Yes, but the case unveiled the gory details. I’m curious: Do you think the Varsity Blues college admissions scandal that broke out affected people’s view of the Harvard case? I know that’s a totally different matter, but it suggested to me that the admissions process is rigged and fairness goes beyond race considerations. Varsity Blues and Harvard are unrelated, although the interest in both matters reflected the intense public interest in college admissions. Harvard was not part of [college consultant] Rick Singer’s scandal. We weren’t implicated because the 40-person review process made it unlikely. People are so wound up about where their kids go to college. That’s a problem and it manifests itself in the intense interest in Varsity Blue and our case.

I’ve always been puzzled why SFFA decided to target Harvard. It seems it would be much harder to prove discrimination at Harvard, given the number of overqualified applicants that it gets and rejects. (The opinion stated that Harvard received 35,000 applications for a class size of 1,600. Among those applicants, 2,700 had perfect verbal SAT scores, 3,400 had perfect math SAT scores and more than 8,000 had perfect GPAs.) [Admissions dean William] Fitzsimmons said during the trial that there are 10 qualified applicants for every slot. They are going after Harvard because it’s an example of a good admission process. In Bakke, the court attached an appendix describing an exemplary admissions program, and that was the Harvard program. If you’re going to blow up race consideration, go after Harvard.

SFFA has already filed a notice of appeal. It seems quite determined to take this case up to the Supreme Court. What do you expect from SFFA and its lawyers? My bet is that they will revisit all the issues. They will seek to eliminate race as a consideration in college admissions.

And will you be soldiering on for the next phase? Yes. I will be working on it and so will Seth [Waxman]. He’s more the appeal guy. I carried the baton during the trial, and he will do so going forward.

 

vchen@alm.com

On Twitter @lawcareerist

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The Careerist takes an inside look at how lawyers shape their careers and manage their lives. The blog aims to dissect developments in the profession, provide useful information and advice, and give lawyers a platform to voice their views. The goal is to provide a fresh, provocative take on the state of lawyering.

About Vivia Chen

Vivia Chen

Vivia Chen, The Careerist's chief blogger, has been covering the business and culture of law firms for a decade. A former corporate lawyer, Chen is fascinated by those who thrive (as well as those who don't) in the legal profession. Her take: Success in the law (and life) doesn't always travel a linear path. If you have topics you'd like to discuss or information to share, contact her: VChen@alm.com

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