Harvard Discrimination Lawsuit: Judge Burroughs on Racial Balancing and "Unhooked" Applicants

As has been widely reported (WSJ):

U.S. District Judge Allison Burroughs found that Harvard’s practices were “not perfect” and could use improvements, including implicit bias training for admissions officers, but said “the Court will not dismantle a very fine admissions program that passes constitutional muster, solely because it could do better.”

I anticipate that this case will end up before the Supreme Court.

While I have not read the entire decision (PDF), I was curious to see how two important arguments made by the plaintiffs (Students For Fair Admissions, SFFA) were addressed. You can evaluate Burroughs' logic and use of evidence for yourself. In the excerpts below I first quote from the SFFA filing, and then from the decision.

Issue #1: Racial Balancing:

SFFA: ... Harvard is engaging in racial balancing. Over an extended period, Harvard’s admission and enrollment figures for each racial category have shown almost no change. Each year, Harvard admits and enrolls essentially the same percentage of African Americans, Hispanics, whites, and Asian Americans even though the application rates and qualifications for each racial group have undergone significant changes over time. This is not the coincidental byproduct of an admissions system that treats each applicant as an individual; indeed, the statistical evidence shows that Harvard modulates its racial admissions preference whenever there is an unanticipated change in the yield rate of a particular racial group in the prior year. Harvard’s remarkably stable admissions and enrollment figures over time are the deliberate result of systemwide intentional racial discrimination designed to achieve a predetermined racial balance of its student body.

This is a relevant figure from the Economist. It shows the increase in Asian representation at Caltech (mostly race-neutral admissions), tracking the overall population of college age Asian Americans, versus the suspicious Ivy league convergence at 15-20% of each class.

From page 80 of the decision:

Although Harvard tracks and considers various indicators of diversity in the admissions process, including race, the racial composition of Harvard’s admitted classes has varied in a manner inconsistent with the imposition of a racial quota or racial balancing. See [Oct. 31 Tr. 119:10–121:10; DX711]. As Figures 1 and 2 show, there has been considerable year-to-year variation in the portion of Harvard’s class that identifies as Asian American since at least 1980.   [ italics mine ]

Figure 1 seems merely to show that admittance by race tends to fluctuate by 5-10% from year to year. No attempt at analysis of correlations across years -- i.e., to detect racial balancing.

Figure 2 seems to show that Asian American applicants are a smaller fraction of the class relative to their share of the applicant pool, whereas, e.g., this ratio is reversed for African Americans. Racial balancing would be found only in detailed comparisons of these ratios across several years, adjusting for strength of application, etc.

Rather than giving a serious analysis of racial balancing (is it actually happening?), Burroughs seems to explicitly support the practice in her comments on racial diversity:

p.30 To summarize the use of race in the admissions process, Harvard does not have a quota for students from any racial group, but it tracks how each class is shaping up relative to previous years with an eye towards achieving a level of racial diversity that will provide its students with the richest possible experience. It monitors the racial distribution of admitted students in part to ensure that it is admitting a racially diverse class that will not be overenrolled based on historic matriculation rates which vary by racial group. [ Isn't this just a definition of racial balancing? ]

Quota Bad, Soft-Quota Good! Is this now the law of the land in the United States of America? SCOTUS here we come...


Issue #2: Is discrimination against Asian Americans especially obvious when one considers "unhooked" applicants separately?

SFFA: ... 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 of Westminster, 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.

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 he is not a lawyer and he is wrong. It is illegal to discriminate against any Asian-American applicant or subset of applicants on the basis of race. Professor Card cannot escape that reality by trying to dilute the dataset. The claim here is not that Harvard, for example, “penalizes recruited athletes who are Asian-American because of their race.” The claim “is that the effects of Harvard’s use of race occur outside these special categories.” Professor Arcidiacono thus correctly excluded special-category applicants to isolate and highlight Harvard’s discrimination against Asian Americans. Professor Card, by contrast, includes “special recruiting categories in his models” to “obscure the extent to which race is affecting admissions decisions for those not fortunate enough to belong to one of these groups.” 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.

The judge seems to have ignored or rejected the claim that discrimination within the pool of unhooked applicants (95% of the total!) is worth considering on its own. This seems to be an entirely legal (as opposed to statistical) question that may be tested in the appeal. (ALDC = Athletes, Legacies, Deans interest list (donors), and Children of Harvard faculty.)

p.52 Although ALDCs represent only a small portion of applicants and are admitted or rejected through the same admissions process that applies to other applicants, they account for approximately 30% of Harvard’s admitted class. [Oct. 30 Tr. 153:6–154:8, DX706; DD10 at 38, 40]. For reasons discussed more fully infra at Section V.F, the Court agrees with Professor Card that including ALDCs in the statistics and econometric models leads to more probative evidence of the alleged discrimination or lack thereof.

See also Former Yale Law Dean on Harvard anti-Asian discrimination case: The facts are just so embarrassing to Harvard... Quotas and a climate of dishonesty and comments therein.