Harvard Expert Testifies Racial Bias Can't Be Ruled Out

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Law360, Boston (October 31, 2018, 5:40 PM EDT) -- Harvard University's star expert witness faced a spirited cross-examination Wednesday by an attorney for the group suing the Ivy League school over its affirmative action admissions policies, and acknowledged that he cannot rule out a racial bias in one of Harvard's admissions ratings being the reason Asian-Americans receive lower scores.

University of California, Berkeley professor David Card has testified that his analysis of six years worth of Harvard admissions data shows no evidence of discrimination against Asian-Americans. Students for Fair Admissions, the organization leading the closely-watched suit, has argued that, while Asian-Americans outperform white Harvard applicants in academic and extracurricular profile ratings assigned by admissions officers, the school dings them due to their ethnicity in the highly subjective personal rating.

Card called the alleged "Asian penalty" the SFFA has claimed "implausible," but Adam Mortara of Bartlit Beck Herman Palenchar & Scott LLP pressed him on an "unexplained gap" that exists between the personal ratings of Asian-American applicants and white Harvard hopefuls.

"You can't actually rule out racial bias as the reason for that gap, can you?" Mortara asked.

"No," Card replied, "not on the basis of statistical evidence."

Card had dug into the personal rating, which has been central to the SFFA's claims, during direct examination earlier in the day. He said he has a hard time squaring the idea put forth by the group's expert, Duke University professor Peter Arcidiacono, that the same admissions officer digs through files for factors, both observable and unobservable, and gives Asian-Americans a boost, only to unfairly dock them on the personal rating.

"I find that extremely hard or impossible to reconcile with Mr. Arcidiacono's claim, that the personal rating is the mechanism by which discrimination against Asians is operating," he testified. "It just doesn't make any sense."

The data-saturated bench trial, which has spanned full days for two-and-a-half weeks in a Boston courtroom before U.S. District Judge Allison D. Burroughs, turned testy late in the day after Card gave Mortara a lengthy answer explaining one of his many statistical models.

"Are you done?" Mortara asked, as WilmerHale's Seth P. Waxman, counsel for Harvard, sprang to his feet.

"It's one thing to be asking questions," Waxman said, "it's another thing to make snide remarks like this. I think it says more about the questioner."

Mortara told Judge Burroughs he would move to strike the next time he got "three paragraphs" after an answer he felt should be answered yes or no.

"Experts often answer with three paragraphs instead of a one word answer," the judge said, "your expert did the same thing."

"Respectfully, Your Honor, no he didn't," Mortara said before returning to the questioning.

Mortara seemed to just be winding up in his cross-examination of Card before the trial broke for the day, and he will resume his colloquy with the economist Thursday morning. After Card had spent the past day-and-a-half trying to rebut the testimony of Arcidiacono, Mortara tried to show flaws in the work done by Harvard's economist of choice.

"I want to talk about some, I'm not going to say 'mistakes,' but some 'inaccuracies' in your slides," Mortara said at the start of the cross.

Through the questioning, Mortara pointed out that Card had labeled several of his charts with the wrong statistic and added up Harvard's profile ratings in another chart, effectively giving the same weight to each even though the SFFA has argued the personal rating in which Asian-Americans are allegedly penalized matters much more in determining whether an applicant is admitted.

The dueling data is expected to be a central part of deciding the case. Judge Burroughs noted in denying cross summary judgment motions pretrial that summary judgment was, in part, precluded by her option that the credibility of the expert witnesses and their "critical modeling and analytical choices" is best evaluated at the trial.

"Under the circumstances of this case, the parties' heavy reliance on statistical evidence and expert testimony precludes summary judgment on Count I," Judge Burroughs wrote in the late September ruling.

Mortara's lively cross-examination followed the second day of a painstaking review of dozens of models compiled by Card that he argues contradict claims made by the SFFA and by the U.S. Department of Justice, which accused Harvard of "racial balancing" in a pretrial filing.

One graph showed swings in Harvard's admissions demographics, when broken down by race. In one year, the number of African-Americans admitted dipped four percent, relative to the previous year, before shooting up 14 percent the next year. Asian-Americans had back-to-back years of seeing an uptick in their admissions rate, dipped 11 percent, and then rose 17 percent in subsequent years.

"What does this tell you, if Harvard is trying to match, year by year, the racial composition of their class?" Waxman asked.

"They are not doing a very good job," Card replied, drawing a few chuckles from the full courtroom. "It doesn't seem like that can possibly be going on. ... There is not any evidence of trying to stabilize the racial shares of the year to year class."

Harvard admits it uses race as a boost, or "tip," in its admissions process, but in a way that falls in line with the narrowly tailored guidelines set forth by the U.S. Supreme Court. Card said the race-based boost seems like more of a factor for African-American and Hispanic students who are already "on the bubble" for admission to the Ivy League school, having demonstrated strengths in a variety of other areas.

"When you get to highly competitive applicants in the upper ranges of skill, you have characteristics that already put them in the bubble and in a range where they are competitive," Card said, "then the presence of being an African-American or Hispanic can be one more factor that increases their probability of admission."

Card said that race, evaluated in isolation, is a relatively small factor in admissions, but Mortara said a reading of a graph displaying the average marginal effect of race shows a 300 percent increase in the change of admissions for African-Americans and a 200 percent increase for Hispanic applicants, relative to their Asian-American peers.

Harvard claims Arcidiacono, who left out a number of variables in his analyses that Card used in his, cherry-picked data to make the SFFA's case.

"Did Dr. Arcidiacono make any choice that made the Asian-American effect less negative?" Waxman asked earlier in the day.

"No," Card replied.

"What does that tell you?" the attorney inquired.

"It suggests that these exclusions are very one-sided," the economist answered.

Card also said there are no viable, "race-neutral" alternatives in the admissions process that could achieve Harvard's goals of a diverse and highly accomplished class.

Arcidiacono, who took the stand last week, has watched both days of testimony from the front row of the Boston courtroom, sitting next to Edward Blum, the anti-affirmative action legal strategist leading the landmark suit. Most observers feel the case is bound for the Supreme Court.

Students for Fair Admissions is represented by Adam K. Mortara, J. Scott McBride, John M. Hughes, Katherine L.I. Hacker and Krista J. Perry of Bartlit Beck Herman Palenchar & Scott LLP, William S. Consovoy, Thomas R. McCarthy, Michael H. Park, John Michael Connolly and Patrick Strawbridge of Consovoy McCarthy Park PLLC, and Paul M. Sanford of Burns & Levinson LLP.

Harvard is represented by Seth P. Waxman, Paul R.Q. Wolfson, Daniel Winik, Debo P. Adegbile, William F. Lee, Felicia H. Ellsworth, Andrew S. Dulberg, Elizabeth C. Mooney and Danielle Conley of WilmerHale.

The case is Students for Fair Admissions v. President and Fellows of Harvard College, case number 1:14-cv-14176, in the U.S. District Court for the District of Massachusetts.

--Editing by Dipti Coorg.

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Harvard Expert Testifies Racial Bias Can't Be Ruled Out

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