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In my last post yesterday on “the guts of the case,”I noted that the outcome will be heavily influenced, perhaps even determined, by which of the dueling expert witnesses (Duke economist Peter Arcidiacono for SFFA; Berkeley economist David Card for Harvard) is more persuasive. Readers will not be surprised that I find Prof. Arcidiacono’s analysis compelling, and yesterday I discussed at some length one of the main reasons.

The Chronicle of Higher Education’s daily report today discusses Prof. Arcidiacono’s testimony yesterday. He testified, among many other things, that? “two-thirds of African-American admits are admitted as a result of racial preferences and roughly half of Hispanics.” Harvard officials, the Chronicle is quick to point out, “adamantly deny that admissions officials discriminate against Asian-American applicants. They say that while they do consider race in their admissions process, it can only help an applicant.”

As I emphasized in my post yesterday, a — in fact, probably the — main difference between the two experts, the Chronicle agrees,

is which types of applicants they included. Arcidiacono excluded recruited athletes, the children of alumni, the children of Harvard faculty and staff members, and students on a “Dean’s List” made up partly of children of donors. Those applicants — about 7,000 out of the roughly 150,000 students in the six-year data set — are admitted at a much higher rate than the rest of the pool, which Arcidiacono said made them difficult to compare with the other applicants.

In my recent Minding The Campus essay?I argued that many commentators on this case tend to conflate discrimination and bias. Harvard, I wrote, “seeks to limit the number of Asians not primarily or maybe even at all out of bias on the part of Harvard officials or admissions officers (unlike the attitudes of those officials toward Jews early in the last century, when ‘holistic review’ was invented for similar purposes and to identical effect) but because ‘too many’ Asians would result in numbers of blacks and Hispanics below what their devotion to ‘diversity’ demands.”

It is possible that the judge, Allison D. Burroughs of the Federal District Court, is suffering from that same confusion. As the Chronicle reports,

She wondered how many Asian-American applicants in those excluded categories are admitted. As it turned out, they are admitted at higher rates than the white applicants.

“It looks to me like what you’re arguing is you have an admissions office that’s discriminating against Asians, but they only do it in certain places,” she said. Arcidiacono agreed.

“If you’re discriminating against a group, wouldn’t you expect them to discriminate across the board?” she asked. Arcidiacono disagreed with that one.

One might expect to find discrimination “across the board” if Harvard’s “diversity” admissions policy were based on bias against Asians. But if Harvard’s concern, as I believe it is, is rather to ensure that it does not admit “too many”Asians, it need not discriminate against every Asian applicant. It can accomplish its goal quite nicely, as I believe Arcidiacono’s (and Harvard’s OIR) analysis shows it has, simply by reducing the flow of Asian applicants through a couple of carefully selected choke points.

As Prof. Arcidiacono emphasizes, if one’s purpose is to discover whether Asian applicants face a higher admissions barrier, it does no good to look at applicants such as legacies, Dean’s favorites, and athletes whose race or ethnicity was not a factor in their admission. The same is true for the large number of applicants whose qualifications did not earn them serious consideration and so for whom their race or ethnicity was not even “one factor.”

Again, let me urge you to read (or even better, re-read) my “guts of the case” post from yesterday to get a fuller picture of the richness of Arciadiacono’s analysis and his entirely persuasive (at least to me, and I hope others) argument that Harvard’s insistence that the inclusion of non-competitive applicants in the data set to be analyzed is based on a desire to disguise its discrimination (not, again, its bias).

Say What?