SFFA v. Harvard College: The Guts Of The Case

The Chronicle of Higher Education begins it daily report from the Boston trial today by noting that “two economists are set to square off in the case challenging Harvard University’s use of race-conscious admissions — one who says Harvard definitely discriminates against Asian-American applicants, and one who says there’s no evidence to suggest that.” The outcome of the case is quite likely to turn on which of these competing analyses is most persuasive.

Conveniently, the article incorporates readable versions of both reports: for the plaintiffs, Duke economist Peter Arcidiacono (168 pages); for Harvard, Berkeley economist David Card (197 pages). Arcidiacono’s report can also be found here, and Card’s here.


Actually, I have another suggestion: if you don’t have time to read both of those reports (and we all know that it is only lack of time that will keep you from doing so, right?), read Prof. Arcidiacono’s Rebuttal to Prof. Card’s report. It’s only 185 pages and crystallizes the issues between them nicely.

You really should read that Rebuttal (and, of course, the two underlying reports) to get a full understanding of where the plaintiffs and Harvard disagree, but let me highlight one especially important and revealing disagreement, which I briefly discussed in one of my earlier essays on the case:

[Prof. Card] criticizes Prof. Arcidiacono for limiting his model to competitive applicants, i.e., for excluding applicants who were clear rejects or who received substantial non-racial preferences, such as legacies and children of staff. However, by including such applicants, Prof. Card’s model has the effect of “making these penalties and preferences appear to be of smaller magnitude than they actually are.” [Arcidiacono Rebuttal Report, 17]

Since this is such a crucial difference it’s worth diving into it a bit more deeply. Here’s how Prof. Arcidiacono puts it in his Rebuttal:

Harvard is a highly selective school. More than 90% of all domestic applicants were rejected over this period, and a substantial number of them are not at all competitive for admission. Those that are affected by racial preferences are competitive applicants. In my report, I showed that Asian-American applicants who had particular characteristics would see substantially higher probabilities of admission were it not for their race. For example, I showed that a male Asian- American applicant who was not disadvantaged with observed characteristics that would dictate a 25% probability of admission would see his probability of admission rise to over 36% if treated as a white applicant and to over 95% if treated as an African-American applicant.

Professor Card argues that I am distorting the picture by examining the effects for competitive applicants. Professor Card’s approach, however, seeks to dilute the estimates of preferences by including many applicants whose characteristics are such that rejection is assured…. By including applicants who are perfect rejects in his models, Professor Card is able to artificially hold down the average marginal effect of race with respect to any particular racial group.

Professor Card’s insistence on including perfect predictions in his model implies that he believes Harvard’s discrimination against certain racial groups and in favor of others is of no consequence unless Harvard actually discriminates against or in favor of every applicant within the affected racial/ethnic groups. This is an absurd proposition. It is a given that Harvard’s low admittance rate means a large number of applicants will be denied without their race ever becoming a factor. But that does not exonerate Harvard for its use of race among the competitive pool. “We don’talways engage in racial discrimination” is not a defense….

Professor Card makes a similar modeling error by always including recruited athletes, children of faculty and staff, applicants who are on the Dean’s List or Director’s List, and legacies in his models. Harvard acknowledges that it affords significant preferences to applicants in these special recruiting categories. By including these special recruiting categories in his models, Professor Card is able to obscure the extent to which race is affecting admissions decisions for those not fortunate enough to belong to one of these groups.

The inclusion of applicants in these special categories specifically tends to obscure the penalty Harvard imposes on Asian-American applicants. Professor Card’s inclusion of these applicants reflects his position that there is no penalty against Asian-American applicants unless Harvard imposes a penalty on every Asian- American applicant. But I am not claiming, for example, that Harvard penalizes recruited athletes who are Asian-American because of their race. My claim is that the effects of Harvard’s use of race occur outside these special categories. There is no reason for their inclusion in his models … other than to conceal the extent to which Harvard penalizes Asian-American applicants in the admissions process.

To Harvard’s embarrassment, strong support for Prof. Arcidiacono’s approach rather than Prof. Card’s is provided by … Harvard itself. Harvard’s own Office of Institutional Research faced exactly the same choice of which applicants to include in its data set to analyze when conducting its studies in 2012 of Harvard’s admission practices (which I have just discussed here, and earlier here). OIR chose the same approach as Prof. Arcidiacono did, and for the same reasons.

The plaintiffs hit this point hard in their Memorandum in Support of Motion For Summary Judgment:

Professor Card refuses to exclude “special category” applicants—recruited athletes, children of faculty and staff, applicants who are on the Dean’s List or Director’s List, and legacies—from his data set. Of course, before there was litigation, OIR did exactly what Professor Card now refuses to do in his analysis. The reason that OIR and Professor Arcidiacono excluded these groups is evident. The task here is to determine whether “similarly situated” applicants have been treated differently on the basis of race; “apples should be compared to apples.” SBT Holdings, LLC v. Town ofWestminster, 547 F.3d 28, 34 (1st Cir. 2008). Because certain applicants are in a special category, it is important to analyze the effect of race without them included. Excluding them allows for the effect of race to be tested on the bulk of the applicant pool (more than 95% of applicants and more than two-thirds of admitted students) that do not fall into one of these categories, i.e., the similarly- situated applicants. For special-category applicants, race either does not play a meaningful role in their chances of admission or the discrimination is offset by the “significant advantage” they receive. Either way, they are not apples.

At bottom, SFFA’s claim is that Harvard penalizes Asian-American applicants who are not legacies or recruited athletes. Professor Card has shown that he is unwilling and unable to contest that claim.

Finally, at least for my purposes today, there is the matter of the personal evaluation of applicants, the area where marking Asians down for deficient “likability,” etc., raised concerns about actual bias. Prof. Card, the plaintiffs argue, “accepts the personal rating as non-discriminatory on the assumption that Asian-American applicants have weaker ‘personal qualities based on “individualized unobservable’’ factors that cannot be quantified by a statistical model.’” In his view, “‘unobserved factors’  like ‘recommendation letters and the applicants’ personal essays’ —not racial bias—explain the difference in personal ratings between Asian-American and white applicants, and, in turn, the difference in their chances of admission.”

There is, however, a serious legal problem with Prof. Card’s argument here. From the plaintiff’s summary judgment memo linked above:

Legally, Harvard has conceded that it may not rely on information concerning aspects of its admissions process not produced in discovery. Harvard resisted producing a statistically significant sample of application files that would have afforded SFFA access to essays, recommendations, and other information not captured by the data Harvard turned over to SFFA instead. In so doing, Harvard recognized that it would be “constrained in the same way” as SFFA…. Harvard understood that, by resisting production of this information, it would not be permitted to “haul out at trial something that we have refused to produce to them…. Yet that is precisely what Professor Card’s report does. “For example,” Card asserts, “testimony in the record indicates that the applicant’s essay is an important consideration in the personal rating, but there is no quantifiable measure of the essay in the data I analyze. This means that the disparity Prof. Arcidiacono labels ‘bias’ may very well be explained by factors other than race that the model does not include.” Essentially, Professor Card claims that SFFA’s expert analysis is incomplete because it fails to consider the very information Harvard fought, and was permitted, to withhold (yet now seeks to rely on).

Summary judgment was not granted, and the trial is now in its second week (of a projected three).

Say What?