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April 30, 2019

From Ex Lib Yogurts to Attacking Admissions Practices


Law School lecturer Adam Mortara (J.D. '01), center, stands with other Students for Fair Admissions lawyers.

Courtesy of Amy Y. Li for The Harvard Crimson

Adam Mortara, the lead trial counsel for Students for Fair Admissions (SFFA) in their lawsuit against Harvard University, was a high school slacker. While his young clients’ whole lives have revolved around school and getting into college, Mortara would refuse to turn in homework assignments and either skipped or slept in class. Mortara felt his spare time was better spent playing Dungeons and Dragons and working on his underground newspaper. Cs and Ds decorated his report card. He took his AP Physics examination in crayon. In his senior year of high school, Mortara accrued approximately 50 detentions, the vast majority of which he ultimately never served. “Succeeding in high school was not particularly interesting [to me],” Mortara said. “I was smart enough to get by without doing anything, and so I did nothing.” 

In contrast with Mortara, SFFA appellants are high-achieving Asian Americans who have done everything right—and who feel cheated by the college application system on the basis of their race and wish to correct the flaw of race-conscious admission practices. 

Given Mortara’s subpar high school record and his brother’s enrollment at the University of Chicago, his college application process raises questions as to whether Mortara possibly benefited from legacy preferences. “It is possible, but I have no way of knowing whether that’s true,” Mortara said. “But I don’t have any doubt that I belonged at the University of Chicago.” He further pointed out that acceptance rates for the University of Chicago were close to 50 percent and admitted that, had he applied today, he would never have received an offer of admission. 

While Mortara was a high school slacker, he was anything but lazy in college. Mortara estimates that he closed out Regenstein Library at least half the nights he spent on campus. He left Hyde Park fewer than 12 times throughout all four years of college.  

“My idea of a date was studying at the Regenstein and maybe meeting…a woman that maybe I already knew and then say[ing], ‘Would you like to go for a yogurt at Ex Libris?’” he said. 

When he wasn’t studying or working in the lab, Mortara worked as the business co-chair for Doc Films. He graduated with a B.S. in chemistry and an offer of membership to the graduate research fellowship of the National Science Foundation, then went to the University of Cambridge to study astrophysics on a Marshall Scholarship. 

Mortara attributes much of his transformation to his older brother, Justin Mortara (A.B. ’92), who, upon entering the University, adopted a new work ethic and sent home grades that Mortara distinctly remembered being proudly displayed on the fridge. “Human Being and Citizen—A. Self, Culture, and Society—A. Honors Freshman Physics—A,” Mortara said. 

Mortara also wanted to make his father, whom he did not have a relationship with at the time, proud. Mortara speculated this was due to his father viewing him as a disappointment. 

“Constantly getting into trouble, not doing well in school will do that to you,” Mortara said. “But he was paying for college, and in that sense, I felt very obligated.” 

Every quarter, Mortara would call home to remind his father that he was paying for more than a straight-A chemistry student. “It clearly made him happy, and it made me happy to make him happy,” Mortara said. 

 Mortara didn’t seriously consider studying law until one night during his final year at the University of Cambridge, when he received a phone call from an old lab colleague informing him that one of his closest mentors at the time, the chairman of the chemistry department, Jeremy Burdett, had suddenly passed away. This left Mortara’s chemistry ambitions hamstrung.

“I think the first thing I said was something to the effect of, ‘This is a joke in really poor taste,’” Mortara said. Burdett had gone to Cambridge’s Magdalene College, which Mortara attended under his Marshall Scholarship. Upon finishing his scholarship, Mortara intended on tendering his fellowship offer and completing his Ph.D. under Burdett’s mentorship. 

“I realized that I had defined myself so narrowly [with] what I wanted to do in chemistry that…Jeremy’s death took away from me what I wanted to do next.” 

Law school was an opportunity to start his life over. His college friends told him he would love it. He decided to go back to Hyde Park to attend the University of Chicago Law School, realizing how much he wanted to be in the neighborhood again. 

After graduation, Mortara worked as a law clerk under Supreme Court Justice Clarence Thomas from 2002 to 2003. At the time, the affirmative action case Grutter v. Bollinger was on trial, in which rejected white applicant Barbara Grutter accused the University of Michigan Law School for using race as a “predominant” factor in their admissions process. 

 Through this first real exposure to the legal landscape of affirmative action, Mortara came to be skeptical about those who claimed to value racial diversity. 

“It was quite clear to me…that the diversity for the University of Michigan and its law school was really only skin-deep,” Mortara said. “They didn’t really care that there had been an incredibly lopsided female-to-male ratio within the African-American students at Michigan Law School, [and] it didn’t seem to concern them in any way, shape, or form. They just wanted black faces.” 

Mortara claims that he could write a whole book on the things he learned from Thomas, but settled for a piece of advice instead. 

“Never, ever back down on a matter of principle,” Mortara said. “And never be afraid to say what you think, because the instant you do either one of those two things, you’ve lost an essential part of yourself.”  

Mortara became involved in SFFA v. Harvard on the basis of one of those principles, along with another maxim:

“I think one thing in life is you do have to kind of trust your friends,” Mortara said. “Trust people that have never given you a reason not to.” 

Last spring, a close friend of Mortara’s, William Consovoy, reached out to him for help. Consovoy’s firm, Consovoy McCarthy Park, has represented the SFFA since 2014. The firm, which has fewer than ten attorneys, was about to go head-to-head with WilmerHale, a “BigLaw” firm hired by Harvard. When Consovoy told him that the case was likely to head to trial, Mortara suggested a few names to call. Two weeks later, Consovoy called again. “I've decided that the person that should really try this case with me is you,” he said. 

Initially, Mortara was extremely hesitant to join the case.

“My first reaction was, ‘Oh boy, I really can’t do this…. I do not want to go down in history as the lawyer who led the crusade to end affirmative action,’” Mortara said. 

Though Mortara opposed affirmative action, it was never a stance that he felt passionate about. However, Consovoy told Mortara that once he joined the legal team and obtained access to the confidential evidence for the lawsuit, Mortara would realize that the Harvard lawsuit would be the most important thing he would ever do in his life. After some deliberation, Mortara agreed to help Consovoy out. Later, looking back to that phone call, Mortara realized that Consovoy was right. 

“I remember being moved to tears by…internal PowerPoints shared with the admissions office at Harvard acknowledging they had a bias against Asians in their system,” he said. “Back in 2014. And they did nothing.”

The lawsuit, which began in 2014 and had its first federal trial this past October, charges Harvard with systemically discriminating against Asian Americans as well as implementing racial balancing and a restrictive quota in their admissions process. 

Part of Harvard’s admission process includes rating the applicant in five main categories, according to The New York Times: academic, extracurricular, athletic, personal, and an overall score (The Crimson listed 14, adding recommendations and alumni ratings, among other things). Applicants receive a score on a scale of one to six for each category, with one being the best. As evidence of discriminatory admission practices, the SFFA submitted filings demonstrating that admission officers consistently scored Asian-American applicants worse in the personal categorywhich accounts for things like likability, courage, and community respect, than other races. This is despite Asian-American applicants being the highest-performing racial group in the academic and extracurricular categories and receiving higher personal ratings from alumni interviewers.

The SFFA also argued that a confidential study done by Harvard’s Office of Institutional Research in 2013 proved there were discriminatory admission practices. The study stated that the college’s admission policies produced “negative effects” for Asian Americans, but the study never elicited action from Harvard. According to an article published by The Harvard Crimson, the university dismissed the results for being “inconclusive and incomplete.”  

The SFFA v. Harvard lawsuit has the potential to upend decades of affirmative action policies for colleges and universities across the United States, leading to its heavy scrutiny. The verdict from the first trial is expected to be released this summer, and both sides are ready to appeal to the Supreme Court. 

Mortara, who is Caucasian, has faced harsh criticism for his role in the SFFA v. Harvard lawsuit, due both to his race and the fact that he is effectively advocating for the end of race-conscious admission practices. 

When the Federalist Society invited Mortara to speak at Stanford Law School about his work on the lawsuit this past April, an e-mail sent to the Asian Pacific Islander Law Students Association (APILSA) by a concerned student mentioned him: 

“I am seriously horrified that Mortara is using our community to further his anti-blackness/white supremacy and feel like it’s important that we as Asian Americans at SLS rebuke him/clarify that this is not happening in our name.”

About a month after the lawsuit’s first trial concluded, the U of C PanAsia Solidarity Coalition released a letter in The Chicago Maroon denouncing Mortara and his claim to allyship with Asian Americans. As far as Mortara is concerned, he could do with having more people pay attention to his work and is disappointed nobody has protested in person at his talks. “Did either of you sign the [letter] denouncing me?” he asked two other university students at our interview. Neither did, and Mortara appeared disappointed at the lack of initiative.

“I think [many] younger people [today]…derive a lot of value from having spoken on something,” Mortara said. “And not so much value from having listened.” He invited the Stanford student who sent the e-mail to talk to him about her gripes with his work after his talk. She never responded. 

I first met Mortara at his office near the Loop, at a firm specializing in trial practice and corporate transactions called Bartlit Beck. The firm’s building, Courthouse Place, is also steeped in legal history and has a UChicago connection: It served as the site for the Leopold and Loeb murder trial, in which two wealthy UChicago students were sentenced to life imprisonment for kidnapping and murdering a 14-year-old boy.

Mortara is 45 years old and bald, putting the focus on a pair of full-frame gray glasses. His hands sometimes jab the table he’s talking over so hard that the countertop shakes a little. Mortara lectures part-time at the University of Chicago Law School, but his full-time job is at Bartlit Beck, where he works as a patent trial lawyer, with a specialty in the pharmaceuticals industry. 

Not everyone in court found his work for SFFA well-intentioned.

“Pretty much the first time I can remember being called out in a negative way for my skin color was at the Harvard trial, where, effectively, my teammates [and I] were called out for being white,” he said. “So…over the trial I kind of made an effort to communicate to the courtroom, not just [to] the judge, but to everybody there, that I had a personal stake in this.” 

Mortara’s own college application process was nothing like that of his clients’. The University of Chicago was one of only two schools to which he wanted to apply, and his interest in the college was mostly derived from his desire to follow in his brother’s footsteps, who had enrolled at the University of Chicago three years prior. Had he not been admitted to the University, Mortara would have most likely gone to the University of Minnesota, even though most of his classmates went to the University of Wisconsin–Madison, just to go against the crowd. At a time when many people typed up their college applications, Mortara submitted his application to the University of Chicago in ballpoint pen. 

In high school, Mortara was heavily invested in learning about Chinese culture. Spanish class was the status quo and “Spanish teachers kind of hated me,” he said. Initially drawn to the unfamiliarity of Mandarin, he came to love the non-phonetic nature of the language, the challenge of memorizing Chinese characters, and the beauty of Chinese poetry. Mortara begged his parents to let him enroll in a language immersion camp called Concordia Language Villages in Becker County, Minnesota. For two summers, he spent four to five hours a day learning new characters with camp counselors who attended the Tiananmen Square protests and/or were high-ranking members of the Communist Party. During the summer of his junior year, Mortara traveled extensively to cities in China, an experience he found extremely moving because of the kindness he was shown. 

“It was the way I was treated by the Chinese adults,” Mortara said. “The instant connection that you could build by showing that you were interested enough in their culture…. I got led into people’s homes or was allowed to sleep on the floor.”  

Mortara’s interest in Chinese culture followed him to the University of Chicago, but when his second-year Chinese class and freshman honors chemistry class had conflicting time slots, he ultimately had to decide between furthering his studies in Chinese or chemistry, the only other subject he felt passionate about in high school. Mortara chose chemistry.

At Chicago, Mortara’s closest friends were Asian-American. Mortara met his first close friend, Saleem Zafar (A.B. ’96), a Pakistani Muslim premed student and fellow chemistry major, during Mortara’s first year of college. They both ended up joining Sigma Phi Epsilon, a fraternity in which about half of its members were Asian-American. Through the fraternity, Mortara then befriended Kalpesh Patel (A.B. ’97), a Gujarati Indian Hindu, and Mike Gomez (A.B. ’97), a Catholic Filipino.

Over the three weeks of the trial, Mortara attempted to leverage these experiences to communicate his personal stake in this case, including speaking Mandarin in court. 

“I’m here because of my three best friends in college: Mike Gomez, Kalpesh Patel, and Saleem Zafar,” Mortara said in his closing statement. “They have children my daughter’s age. Asian children. Asian children who deserve the same chance to go to Harvard that my white daughter has.”

A common concern that opponents of the lawsuit have is that Asian Americans are being used as pawns for anti-affirmative action policies. Many people against the lawsuit particularly take issue with Edward Blum, the president of the SFFA and a conservative activist commonly villainized for his history of overturning race-conscious laws. Blum is famous for his involvement in Fisher v. University of Texas, in which he helped white student Abigail Fisher sue the University of Texas on the charges that the university’s consideration of race in their admission process was unconstitutional. The university guarantees the top 10 percent of each in-state graduating high school class a seat and considers race in their admissions for the remaining spots. Blum lost the lawsuit. 

From his personal experience, Mortara finds it hard to equate Blum with the nefarious profile online media frequently assigns to him. “There's absolutely no way that Edward Blum does not feel extremely [passionately about] working to help Asian-American students get justice. That is not inconsistent with him feeling extremely passionately that affirmative action is wrong and that it needs to be ended here.” 

Mortara’s attack on Harvard is also not intended to promote a whiter campus. “I would not be part of this case if I thought…that a win for Students for Fair Admissions on every claim we’re bringing would result in there being significantly lower racial diversity,” he said. 

According to a Supreme Court case ruling made by a previous affirmative action lawsuit, Grutter v. Bollinger, universities are not to employ racial preferences in their admission processes unless they have first had “serious, good faith consideration of workable race-neutral alternatives.” 

However, Mortara does not believe that Harvard has seriously considered these alternatives. According to a study done by Richard Kahlenberg, boosting socioeconomic preferences while reducing those for legacies and donors would enable Harvard to maintain about the same level of racial diversity. Nevertheless, Harvard claims that the analysis is flawed, stating that such an emphasis on socioeconomic preferences would drastically reduce the academic caliber and overall quality of its incoming classes. 

Looking forward, Mortara is optimistic that 20 to 30 years down the line, there will be books written about Harvard’s discrimination towards Asian Americans. “Those books might say that Harvard let the wolf of racial bias in through the front door,” Mortara said in his closing statement at the trial. “[Harvard’s attorneys] point out that this summer, Harvard took a small step to start to close the door.” 

He concluded: “We hope those books will say that this court slammed that door shut.” 

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