Lead Counsel for Harvard in Bias Trial Recalls His Run-Ins With Discrimination

BOSTON — Before the trial accusing Harvard of racial discrimination began its second day Tuesday, the university’s lead lawyer, Bill Lee, wandered the hallway in the federal courthouse, chatting with spectators, reporters and colleagues.

In a case that examines whether Harvard unfairly limits the number of Asian-Americans admitted to the school, one crude and perhaps inevitable assumption is that Harvard’s choice of Lee to litigate this case was in part strategic, because it put an Asian-American face on the team.

To that, Lee, looking amused, said that at this stage of a career that has included investigating racial bias in the criminal courts and helping prosecute the Iran-Contra affair, he had earned it.

“When I arrived here in Boston, I was the only Asian-American lawyer in the entire city,” he said. “Forty-two years later, I hope I’m still doing it because I’m good at it.”

Among his opponents, he faces four lawyers, all white, who are former clerks of Justice Clarence Thomas, perhaps the most conservative member of the Supreme Court and one of the fiercest critics of affirmative action. This trial has brought them together, in a reunion of sorts.

In many ways the trial turns on symbolism, beginning with the choice of Harvard, of all possible universities, as a target of the plaintiff, an anti-affirmative action group that represents Asian-Americans rejected by the college.

A ruling against Harvard would send a strong message to institutions schooling the elite that merit should determine the future leaders of American society. A victory for Harvard would vindicate the university’s claim that it is motivated by a quest for an ideal, diverse society.

The trial has brought out Drew Faust, the former Harvard president, and Rakesh Khurana, the dean of Harvard College, who have sat in the gallery this week. It has divided Asian-Americans: Those favoring the plaintiff, Students for Fair Admissions, scuffled a bit Monday with those favoring the defense.

A contingent of Harvard supporters, including alumni, have come to court every day wearing blue T-shirts emblazoned with the word “Diversitas,” a play on Harvard’s motto, “Veritas,” which means truth.

John Hughes, one of those former clerks for Thomas, questioned Harvard’s dean of admissions Tuesday about whether consideration of race affects the “personal rating” given to applicants. The rating is one of five that admissions officers use to evaluate applicants, along with “academic,” “extracurricular,” “athletic” and “overall.”

The dean, William Fitzsimmons, acknowledged that the personal rating for Asian-Americans was lower than it was for other races. But he said that many factors went into that score, including information from high school guidance counselors and teachers.

“The strength of the teacher recommendations and counselor recommendations for whites is somewhat stronger than those for Asian-Americans,” he said, adding that it “could be one factor” in lowering personal ratings.

Hughes asked Fitzsimmons about a 1990 report from a federal investigation of Harvard admissions, which examined the issue of discrimination against Asian-American applicants and cleared the university of wrongdoing. The investigators, Hughes said, had found some instances of admissions officers making comments about Asian-Americans being bland, reflecting a common stereotype.

“We do not endorse, we abhor stereotypical comments,” Fitzsimmons said. “This is not part of our process. This is not who I am. This is not who our admissions committee members are.”

Fitzsimmons acknowledged that race was a factor in admissions. But he said that a candidate’s race was given weight only if it was reflective of life experience, such as “the fact that they had overcome and surmounted these kinds of obstacles.”

In remarks in the hallway, Lee said the testimony had offered only one side of the story, adding that the federal investigation report was “from 1990, when people said in the midst of 110,000 files, they found a few comments.” And it ultimately found that Harvard did not discriminate, he said.

The government found that although Asian-Americans were admitted at a lower rate than whites, the difference could be explained by the preference given to recruited athletes and the children of alumni, who were more likely to be white.

Lee, a managing partner at WilmerHale, has close ties to Harvard. He was the first Asian-American to serve on the Harvard Corp. He graduated from Harvard in 1972.

He said that his parents came to the United States from China in 1948, at a time when there were still restrictions on Asian immigration. Lee was born two years later. His father was university-educated in Shanghai. Lee said he had a strong childhood memory of sitting with his mother while their eventual neighbors in Philadelphia voted to let them move in by lifting a restrictive covenant, once used to restrict the racial makeup of neighborhoods to white people.

When it was time to go to middle school, he could not be in the honors program because English was not his first language. He was the first in his high school, now known as Strath Haven High School, to go to Harvard. He was followed there by his two younger brothers, who both went on to medical school.

Two of his three children did not apply to Harvard as undergraduates; they went to Bowdoin and Williams. The middle one, a daughter, was admitted to Harvard and became captain of the women’s swim team.

Lee is a leading intellectual property litigator. But, he said, early in his career, he investigated bias in the Massachusetts courts, as a special assistant to the state attorney general.

His opening statement Monday was mostly dispassionate. But it took a turn at the very end, when Lee described being the only Asian-American lawyer in the courtroom when he started out 42 years ago. Discrimination, he said, is “something I have lived.”