Students for Fair Admissions, Inc. v. President and Fellows of Harvard College et al

Filing 421

DECLARATION re 412 MOTION for Summary Judgment by Students for Fair Admissions, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28, # 29 Exhibit 29, # 30 Exhibit 30, # 31 Exhibit 31, # 32 Exhibit 32, # 33 Exhibit 33, # 34 Exhibit 34, # 35 Exhibit 35, # 36 Exhibit 36, # 37 Exhibit 37, # 38 Exhibit 38, # 39 Exhibit 39, # 40 Exhibit 40, # 41 Exhibit 41, # 42 Exhibit 42, # 43 Exhibit 43, # 44 Exhibit 44, # 45 Exhibit 45, # 46 Exhibit 46, # 47 Exhibit 47, # 48 Exhibit 48, # 49 Exhibit 49, # 50 Exhibit 50, # 51 Exhibit 51, # 52 Exhibit 52, # 53 Exhibit 53, # 54 Exhibit 54, # 55 Exhibit 55, # 56 Exhibit 56, # 57 Exhibit 57, # 58 Exhibit 58, # 59 Exhibit 59, # 60 Exhibit 60, # 61 Exhibit 61, # 62 Exhibit 62, # 63 Exhibit 63, # 64 Exhibit 64, # 65 Exhibit 65, # 66 Exhibit 66, # 67 Exhibit 67, # 68 Exhibit 68, # 69 Exhibit 69, # 70 Exhibit 70, # 71 Exhibit 71, # 72 Exhibit 72, # 73 Exhibit 73, # 74 Exhibit 74, # 75 Exhibit 75, # 76 Exhibit 76, # 77 Exhibit 77, # 78 Exhibit 78, # 79 Exhibit 79, # 80 Exhibit 80, # 81 Exhibit 81, # 82 Exhibit 82, # 83 Exhibit 83, # 84 Exhibit 84, # 85 Exhibit 85, # 86 Exhibit 86, # 87 Exhibit 87, # 88 Exhibit 88, # 89 Exhibit 89, # 90 Exhibit 90, # 91 Exhibit 91, # 92 Exhibit 92, # 93 Exhibit 93, # 94 Exhibit 94, # 95 Exhibit 95, # 96 Exhibit 96, # 97 Exhibit 97, # 98 Exhibit 98, # 99 Exhibit 99, # 100 Exhibit 100, # 101 Exhibit 101, # 102 Exhibit 102, # 103 Exhibit 103, # 104 Exhibit 104, # 105 Exhibit 105, # 106 Exhibit 106, # 107 Exhibit 107, # 108 Exhibit 108, # 109 Exhibit 109, # 110 Exhibit 110, # 111 Exhibit 111, # 112 Exhibit 112, # 113 Exhibit 113, # 114 Exhibit 114, # 115 Exhibit 115, # 116 Exhibit 116, # 117 Exhibit 117, # 118 Exhibit 118, # 119 Exhibit 119, # 120 Exhibit 120, # 121 Exhibit 121, # 122 Exhibit 122, # 123 Exhibit 123, # 124 Exhibit 124, # 125 Exhibit 125, # 126 Exhibit 126, # 127 Exhibit 127, # 128 Exhibit 128, # 129 Exhibit 129, # 130 Exhibit 130, # 131 Exhibit 131, # 132 Exhibit 132, # 133 Exhibit 133, # 134 Exhibit 134, # 135 Exhibit 135, # 136 Exhibit 136, # 137 Exhibit 137, # 138 Exhibit 138, # 139 Exhibit 139, # 140 Exhibit 140, # 141 Exhibit 141, # 142 Exhibit 142, # 143 Exhibit 143, # 144 Exhibit 144, # 145 Exhibit 145, # 146 Exhibit 146, # 147 Exhibit 147, # 148 Exhibit 148, # 149 Exhibit 149, # 150 Exhibit 150, # 151 Exhibit 151, # 152 Exhibit 152, # 153 Exhibit 153, # 154 Exhibit 154, # 155 Exhibit 155, # 156 Exhibit 156, # 157 Exhibit 157, # 158 Exhibit 158, # 159 Exhibit 159, # 160 Exhibit 160, # 161 Exhibit 161, # 162 Exhibit 162, # 163 Exhibit 163, # 164 Exhibit 164, # 165 Exhibit 165, # 166 Exhibit 166, # 167 Exhibit 167, # 168 Exhibit 168, # 169 Exhibit 169, # 170 Exhibit 170, # 171 Exhibit 171, # 172 Exhibit 172, # 173 Exhibit 173, # 174 Exhibit 174, # 175 Exhibit 175, # 176 Exhibit 176, # 177 Exhibit 177, # 178 Exhibit 178, # 179 Exhibit 179, # 180 Exhibit 180, # 181 Exhibit 181, # 182 Exhibit 182, # 183 Exhibit 183, # 184 Exhibit 184, # 185 Exhibit 185, # 186 Exhibit 186, # 187 Exhibit 187, # 188 Exhibit 188, # 189 Exhibit 189, # 190 Exhibit 190, # 191 Exhibit 191, # 192 Exhibit 192, # 193 Exhibit 193, # 194 Exhibit 194, # 195 Exhibit 195, # 196 Exhibit 196, # 197 Exhibit 197, # 198 Exhibit 198, # 199 Exhibit 199, # 200 Exhibit 200, # 201 Exhibit 201, # 202 Exhibit 202, # 203 Exhibit 203, # 204 Exhibit 204, # 205 Exhibit 205, # 206 Exhibit 206, # 207 Exhibit 207, # 208 Exhibit 208, # 209 Exhibit 209, # 210 Exhibit 210, # 211 Exhibit 211, # 212 Exhibit 212, # 213 Exhibit 213, # 214 Exhibit 214, # 215 Exhibit 215, # 216 Exhibit 216, # 217 Exhibit 217, # 218 Exhibit 218, # 219 Exhibit 219, # 220 Exhibit 220, # 221 Exhibit 221, # 222 Exhibit 222, # 223 Exhibit 223, # 224 Exhibit 224, # 225 Exhibit 225, # 226 Exhibit 226, # 227 Exhibit 227, # 228 Exhibit 228, # 229 Exhibit 229, # 230 Exhibit 230, # 231 Exhibit 231, # 232 Exhibit 232, # 233 Exhibit 233, # 234 Exhibit 234, # 235 Exhibit 235, # 236 Exhibit 236, # 237 Exhibit 237, # 238 Exhibit 238, # 239 Exhibit 239, # 240 Exhibit 240, # 241 Exhibit 241, # 242 Exhibit 242, # 243 Exhibit 243, # 244 Exhibit 244, # 245 Exhibit 245, # 246 Exhibit 246, # 247 Exhibit 247, # 248 Exhibit 248, # 249 Exhibit 249, # 250 Exhibit 250, # 251 Exhibit 251, # 252 Exhibit 252, # 253 Exhibit 253, # 254 Exhibit 254, # 255 Exhibit 255, # 256 Exhibit 256, # 257 Exhibit 257, # 258 Exhibit 258, # 259 Exhibit 259, # 260 Exhibit 260, # 261 Exhibit 261)(Consovoy, William) (Additional attachment(s) added on 6/18/2018: # 262 Unredacted version of Declaration, # 263 Exhibit 1 (filed under seal), # 264 Exhibit 2 (filed under seal), # 265 Exhibit 5 (filed under seal), # 266 Exhibit 6 (filed under seal), # 267 Exhibit 7 (filed under seal), # 268 Exhibit 8 (filed under seal), # 269 Exhibit 9 (filed under seal), # 270 Exhibit 10 (filed under seal)) (Montes, Mariliz). (Additional attachment(s) added on 6/18/2018: # 271 Exhibit 11 (filed under seal), # 272 Exhibit 12(filed under seal), # 273 Exhibit 13 (filed under seal), # 274 Exhibit 14 (filed under seal), # 275 Exhibit 16 (filed under seal), # 276 Exhibit 17(filed under seal), # 277 Exhibit 18(filed under seal), # 278 Exhibit 19 (filed under seal), # 279 Exhibit 20 (filed under seal), # 280 Exhibit 22 (filed under seal), # 281 Exhibit 23 (filed under seal), # 282 Exhibit 24 (filed under seal), # 283 Exhibit 25(filed under seal), # 284 Exhibit 26 (filed under seal), # 285 Exhibit 28 (filed under seal), # 286 Exhibit 29 (filed under seal), # 287 Exhibit 31 (filed under seal), # 288 Exhibit 32 (filed under seal), # 289 Exhibit 33 (filed under seal), # 290 Exhibit 35 (filed under seal), # 291 Exhibit 36 (filed under seal), # 292 Exhibit 37 (filed under seal), # 293 Exhibit 38(filed under seal), # 294 Exhibit 39 (filed under seal), # 295 Exhibit 40 (filed under seal), # 296 Exhibit 41, # 297 Exhibit 42 (filed under seal), # 298 Exhibit 43 (filed under seal), # 299 Exhibit 44(filed under seal), # 300 Exhibit 45 (filed under seal), # 301 Exhibit 46 (filed under seal), # 302 Exhibit 47 (filed under seal), # 303 Exhibit 48 (filed under seal), # 304 Exhibit 51 (filed under seal)) (Montes, Mariliz).

EXHIBIT 3

Highly Confidential Attorneys' Eyes Only

Page 1
1
2

HIGHLY CONFIDENTIAL-ATTORNEYS EYES ONLY

3

IN THE UNITED STATES DISTRICT COURT

4

FOR THE DISTRICT OF MASSACHUSETTS

5

Civil Action No:

1:14-cv-14176-ADB

----------------------------X
6

STUDENTS FOR FAIR ADMISSIONS,
7

INC.,

8
9
10

Plaintiff,
v.
PRESIDENT AND FELLOWS OF
HARVARD COLLEGE

11

(HARVARD CORPORATION),

12
13
14

Defendant.
-----------------------------X
VIDEOTAPED DEPOSITION OF

15

DAVID CARD, Ph.D.

16

Washington, DC

17

April 27, 2018

18

9:07 AM

19
20
21

Reported by:

22

Karen Brynteson, RMR, CRR, FAPR

23

Job No. 139809

24
25

TSG Reporting - Worldwide

800-702-9580

Highly Confidential Attorneys' Eyes Only

Page 27
1

D. Card

2
3

MS. ELLSWORTH:

Object to the

form.

4

THE WITNESS:

I have read the

5

phrase, and I have some

6

understanding of it.

7
8

BY MR. STRAWBRIDGE:
Q.

You're aware that that's --

9

that's -- that's the phrase that Harvard

10

applied to its own admissions process, I

11

assume?

12

A.

I am, yes.

13

Q.

Okay.

Have you written any

14

papers that actually analyze the -- the

15

extent to which various factors play a

16

role in admission under a holistic

17

admissions process?

18

A.

Well, if one interprets

19

holistic to mean evaluating different

20

characteristics of students, potentially,

21

I studied that indirectly, but I have not

22

written any papers, I believe, that would

23

use the word holistic admissions in them.

24
25

Q.

Have you looked at -- have you

written any papers that are specific to
TSG Reporting - Worldwide

800-702-9580

Highly Confidential Attorneys' Eyes Only

Page 28
1

D. Card

2

the question of how race affects college

3

admissions decisions by universities?

4

MS. ELLSWORTH:

5

Object to the

form.

6

THE WITNESS:

I have written a

7

paper on the effect of ending

8

affirmative action policies in

9

Texas and California on the

10

probabilities that students send

11

their SATs to different colleges,

12

which would indirectly affect that,

13

what colleges can do, I guess.

14

BY MR. STRAWBRIDGE:

15

Q.

Am I right that that paper was

16

about basically analyzing applicant

17

behavior?

18

A.

Yes.

19

Q.

It wasn't -- it wasn't about

20

analyzing what colleges did with those

21

applications once they were received, was

22

it?

23

A.

Well, indirectly.

There are

24

-- there are figures and tables in that

25

paper which show the changes in admission
TSG Reporting - Worldwide

800-702-9580

Highly Confidential Attorneys' Eyes Only

Page 29
1

D. Card

2

rates of different groups.

3

evidence on that.

4

Q.

So it has

Did you -- did you purport in

5

that paper to analyze the strength of

6

various factors that were actually used

7

by the Admissions Department in deciding

8

who to admit and who to reject?

9

A.

Well, indirectly I -- I guess

10

it does show that because it has changes

11

in admission rates of different racial

12

groups as a result of the end of

13

affirmative action policies.

14

Q.

Did you build a multivariate

15

logit model to analyze the admissions

16

processes for the universities that were

17

the subject of that study?

18

A.

No.

19

Q.

You just basically reported

20

how the -- how the rates of -- the

21

admission rates of various groups changed

22

in two different periods of time?

23

A.

Among other things, yeah.

24

Q.

What else?

25

A.

Well, there was many
TSG Reporting - Worldwide

800-702-9580

Highly Confidential Attorneys' Eyes Only

Page 30
1

D. Card

2

institutions involved and there was

3

multiple periods before and after.

4

Q.

But until this case, I guess

5

what I'm getting at, is have you ever

6

been involved in the creation of a -- of

7

a -- of a multivariate logit model to

8

estimate the effects of factors on

9

college admissions decisions?

10

A.

I don't believe so, no.

11

Q.

On -- have -- and I guess

12

because my earlier questions were about

13

papers you have written, I assume that

14

your answer that you haven't built that

15

kind of a model to measure the effect on

16

college admissions of various factors

17

necessarily means you haven't published

18

any papers on that question either?

19
20
21

MS. ELLSWORTH:

Object to the

form.
THE WITNESS:

Well, if I

22

haven't written them, they haven't

23

published them, yes, that's

24

correct.

25

BY MR. STRAWBRIDGE:
TSG Reporting - Worldwide

800-702-9580

Highly Confidential Attorneys' Eyes Only

Page 47
1

D. Card

2

should exclude any other variables based

3

on the potential that race was affecting

4

them?

5

A.

I -- when I was finishing my

6

-- in the process of trying to finish my

7

rebuttal report, it was very clear that

8

there were a number of disagreements

9

between Professor Arcidiacono and me on a

10

couple of issues.

11

And so I -- I was able to ask

12

Dean Fitzsimmons directly in a telephone

13

conversation if race was involved in the

14

personal rating, for example, and he said

15

no.

16
17

Q.

his testimony?

18
19

MS. ELLSWORTH:

22

Object to the

form.

20
21

Did you do anything to verify

THE WITNESS:

No.

BY MR. STRAWBRIDGE:
Q.

You're familiar with what it

23

means to interact a variable in the

24

multivariate logit model?

25

A.

In general terms, yes.
TSG Reporting - Worldwide

800-702-9580

Highly Confidential Attorneys' Eyes Only

Page 53
1

D. Card

2

a difference in a model?

3

MS. ELLSWORTH:

4

Sorry.

Object

to the form.

5

THE WITNESS:

Well, I think I

6

just showed that it does make a

7

small difference.

8

that's self-evident from what I

9

just said.

10

So I think

BY MR. STRAWBRIDGE:

11

Q.

You and Professor Arcidiacono,

12

I think you just acknowledged, you made

13

some adjustments to your models after

14

reviewing each others' reports in this

15

case?

16

A.

Yes.

17

Q.

Okay.

For example, in your

18

rebuttal report you adopted Professor

19

Arcidiacono's ratings methodology?

20

A.

Yes.

21

Q.

That had the effect of

22

dropping many, but not all, of the

23

perfect predictions from your model?

24

A.

Yes.

25

Q.

Do you know about how many
TSG Reporting - Worldwide

800-702-9580

Highly Confidential Attorneys' Eyes Only

Page 54
1

D. Card

2

perfect predictions are still in your

3

model, even after making that change?

4

A.

No, not precisely.

There is

5

some perfect predictions that are perfect

6

predict admits, so some people who would

7

be predicted to get in with 100 percent

8

probability, and there is some who would

9

be predicted to not get in with

10
11

100 percent probability.
Q.

Do you know what the relative

12

breakdown is between the perfect predicts

13

of admission and the perfect predicts of

14

rejection?

15
16

MS. ELLSWORTH:
form.

17
18

Object to the

THE WITNESS:

Not precisely,

no.

19

(Card Deposition Exhibit 7,

20

New Hard Models printout, was marked

21

for identification.)

22

BY MR. STRAWBRIDGE:

23

Q.

I have handed you what has

24

been marked as Exhibit 7.

25

represent to you that this is information

I will

TSG Reporting - Worldwide

800-702-9580

Highly Confidential Attorneys' Eyes Only

Page 55
1

D. Card

2

that's taken from your workpaper that

3

just shows the number of perfect

4

predictions both for admits and rejects

5

in your new model versus your old model.

6

And I will also note for the

7

record, and apologize that this should

8

have been printed landscape form, so you

9

kind of have to tear the two pages apart

10

and hold them next to each other to read

11

the exhibit.

12

If you flip over, if you are

13

looking for the final in the old models,

14

you have to flip over the page.

15

A.

Okay.

16

Q.

Sorry about that.

Do you have

17

any reason to doubt that these numbers

18

accurately reflect the number of perfect

19

predictions in your models?

20
21

A.

my workpaper, then it is correct, yeah.

22
23

If it is accurately taken from

Q.

I will represent that it has

been.

24

A.

Okay.

25

Q.

Certainly if that's wrong, I'm
TSG Reporting - Worldwide

800-702-9580

Highly Confidential Attorneys' Eyes Only

Page 56
1

D. Card

2

sure the folks on the other side of the

3

table will let us know.

4

But this indicates that for

5

the old models that you used, that a

6

number of perfect predictions was 29,445

7

perfect predictions of reject; is that

8

right?

9

A.

Right.

10

Q.

And 527 perfect predictions of

11

admit?

12

A.

Correct.

13

Q.

And in the new model, the

14

number of perfect predictions of reject

15

is 5,675?

16

A.

Yes.

17

Q.

And the number of perfect

18

predictions of admit is one.

19

A.

Right.

20

Q.

So that shows that the vast

21

majority of perfect predictions both in

22

your old model and in your new model, if

23

this is accurate, were for rejects,

24

correct?

25

A.

Correct.
TSG Reporting - Worldwide

800-702-9580

Highly Confidential Attorneys' Eyes Only

Page 57
1
2

D. Card
Q.

You also updated your model to

3

incorporate the activity variables for

4

extracurricular activities that Professor

5

Arcidiacono used?

6

A.

In one of the robustness

7

analysis, I did, I used his preferred

8

measures, yes.

9

of my rebuttal report.

10

Q.

This would be Exhibit 16

And is it your testimony that

11

that adjustment is -- is in your new

12

preferred model or only for one of the

13

robustness models?

14
15

MS. ELLSWORTH:

Object to the

form.

16

THE WITNESS:

I believe that

17

the full set of his preferred

18

specification is -- is in

19

Exhibit 16, his robustness

20

analysis.

21

BY MR. STRAWBRIDGE:

22
23

Q.

Did -- do any -- strike that.
Professor Arcidiacono's models

24

in both his first report and his second

25

report include two different samples,
TSG Reporting - Worldwide

800-702-9580

Highly Confidential Attorneys' Eyes Only

Page 63
1

D. Card

2

any difference for the statistical

3

analysis, so.

4
5
6

BY MR. STRAWBRIDGE:
Q.

And athletes is the only group

that you do that for?

7

A.

Yes.

8

Q.

Okay.

And the reason why, and

9

I guess you say it right -- right --

10

right here in footnote 97, that your

11

understanding is that recruited athletes

12

are part of the same admissions process

13

as all other applicants.

14

correct?

Is that

15

A.

Yes.

16

Q.

I'm sorry, before we go there,

17

let me just ask:

18

that you are referencing in footnote 97,

19

you don't do any other modeling in either

20

of your reports that looks separately at

21

the non-ALDC population from the ALDC

22

population?

23

A.

Other than this model

No, because as I explain in my

24

original report and, again, in my

25

rebuttal report, I believe that there is
TSG Reporting - Worldwide

800-702-9580

Highly Confidential Attorneys' Eyes Only

Page 64
1

D. Card

2

a variety of evidence from the

3

documentary -- or from the evidence from

4

the depositions and from the other

5

sources, including my direct query to the

6

dean by telephone.

7

But also there is a question

8

that was asked that shows up on a web

9

site, asking about whether athletes at

10

Harvard are part of the regular

11

admissions process.

12

Anyway, my understanding is

13

that these four groups are all part of

14

the regular admissions process.

15
16
17
18
19

Q.

And when you say on the web

site, whose web site do you mean?
A.

I believe it was on the

Harvard admissions web site.
Q.

And the dean himself told you

20

that they are part of the regular

21

admissions process?

22
23
24
25

MS. ELLSWORTH:

Object to the

form.
THE WITNESS:
they were.

I asked him if

He said they were.

TSG Reporting - Worldwide

800-702-9580

Highly Confidential Attorneys' Eyes Only

Page 99
1
2

D. Card
Q.

And from that baseline, you

3

then do a number of simulations that

4

analyze the effect of various

5

race-neutral alternatives, correct?

6

A.

Correct.

I do the kind of

7

simulations that have been done in the

8

literature before and that Professor

9

Arcidiacono performs for Mr. Kahlenberg

10
11

as well, yeah.
Q.

And, in fact, your method

12

closely follows that used by Mr.

13

Kahlenberg, assisted by Professor

14

Arcidiacono.

15

A.

Right?

Right, but this is a method

16

that is pretty standard in the literature

17

and was used by several of the other

18

papers in the area.

19

Q.

There were two key

20

differences, I think, between your

21

approach with -- between your approach

22

and those of Mr. Kahlenberg's, at least

23

in your initial report?

24
25

MS. ELLSWORTH:

Object to the

form.
TSG Reporting - Worldwide

800-702-9580

Highly Confidential Attorneys' Eyes Only

Page 123
1
2

D. Card
Q.

But in your -- I guess I just

3

-- I just want to understand.

4

record as saying that this doesn't, this

5

simulation, does a poor job of generating

6

racial diversity.

7

You're on

Do you think it does a poor

8

job of generating socioeconomic

9

diversity?

10

MS. ELLSWORTH:

11

THE WITNESS:

Objection.
Well, the

12

difference is that these are the

13

categories of race that I'm using

14

in this analysis.

15

Now, there are other

16

categories of race, but -- and

17

other ways of counting, for

18

example, who is Asian American or

19

who is African American.

20

But in socioeconomic

21

diversity, for instance, I have, in

22

my preferred specification of the

23

model, I would like to take account

24

of, in the admissions process, I

25

would really like to take account
TSG Reporting - Worldwide

800-702-9580

Highly Confidential Attorneys' Eyes Only

Page 124
1

D. Card

2

of parental occupation.

3

also want to take account of

4

parental education.

5

You might

So socioeconomic status is a

6

very, very broad category, very

7

important for understanding things.

8

These are the categories that

9

I was able to come up with quickly,

10

but -- in this analysis, come up

11

with in this analysis, but you

12

could -- I would be reluctant to

13

make an assessment of socioeconomic

14

diversity just on these four

15

numbers.

16
17

BY MR. STRAWBRIDGE:
Q.

So basically the size of the

18

increases here are not sufficient to

19

convince you that this scenario does a

20

good job of increasing socioeconomic

21

diversity?

22
23
24
25

MS. ELLSWORTH:

Objection,

asked and answered.
BY MR. STRAWBRIDGE:
Q.

That's your testimony?
TSG Reporting - Worldwide

800-702-9580

Highly Confidential Attorneys' Eyes Only

Page 147
1
2
3
4
5

D. Card
BY MR. STRAWBRIDGE:
Q.

And, again, I'm just staying

in paragraph 192.
A.

He eliminates the preferences,

6

yeah, and he changes the -- the four SES

7

characteristics slightly.

8
9

Q.

Right.

And you determined

that these simulations, you know, as he

10

-- as he -- as he makes those

11

adjustments, are insufficient because the

12

race-neutral alternative "produces a

13

class that is different from the current

14

class in the dimensions I understand

15

Harvard cares about."

16
17

That's in paragraph 195,
correct?

18

A.

Yes, that's what I say, yes.

19

Q.

All right.

20

So looking at the

Exhibit 26 in your report.

21

A.

Okay.

22

Q.

Which differences in your view

23

render this as insufficient because it

24

produces a class that is different from

25

the current class in dimensions that you
TSG Reporting - Worldwide

800-702-9580

Highly Confidential Attorneys' Eyes Only

Page 152
1
2

D. Card
Q.

It's 26 percent compared to

3

the 30 percent drop that you termed as

4

dramatic, correct?

5

A.

Right.

6

Q.

But, again, do you -- do you

7

have a -- do you have any understanding

8

of what difference would be acceptable to

9

Harvard, even if it were a decline in any

10

of these racial categories?

11
12

MS. ELLSWORTH:
form.

13
14
15

Object to the

THE WITNESS:

No.

BY MR. STRAWBRIDGE:
Q.

And you don't have a personal

16

understanding as to what you think is an

17

acceptable or not acceptable decline for

18

purposes of a race-neutral alternative?

19
20

MS. ELLSWORTH:
form.

21
22
23

Object to the

THE WITNESS:

No.

BY MR. STRAWBRIDGE:
Q.

Did the committee tell you

24

that an African American class that

25

represents 10 percent of the admitted
TSG Reporting - Worldwide

800-702-9580

Highly Confidential Attorneys' Eyes Only

Page 180
1
2

D. Card
table?

3

A.

So if we look in my Exhibit

5

Q.

Your Exhibit 13?

6

A.

Um-hum.

4

13.

We can see how

7

starting with -- with my model at the

8

bottom, now this is -- already I'm

9

including ALDCs in my analysis, how the

10

effect of interactions and personal

11

rating and so on, of parental occupation,

12

changes the -- changes the coefficients

13

in my model and gets you from my model to

14

Professor Arcidiacono's model.

15

Q.

Right.

Do you actually cite

16

Table 4.2N anywhere in your rebuttal

17

report?

18

A.

I can't say for sure I do cite

19

that table directly, but I cite or

20

address each of the issues, I think, that

21

he is trying to address here.

22

Q.

Setting aside the

23

disagreements that I know you have with

24

Professor Arcidiacono about his modeling

25

choices, anywhere in your expert report
TSG Reporting - Worldwide

800-702-9580

Highly Confidential Attorneys' Eyes Only

Page 181
1

D. Card

2

do you challenge the calculations on

3

Table 4.2N?

4
5

MS. ELLSWORTH:

Object to the

form.

6

THE WITNESS:

So, in other

7

words, you're asking me if we took

8

what Professor Arcidiacono says is

9

his model and estimated it the way

10

he says he's doing it here, you

11

would get these numbers?

12

BY MR. STRAWBRIDGE:

13

Q.

Right.

14

A.

Yes, I believe that's correct.

15

Q.

I mean, do you think he is

16

misstating his model?

17

disagree with his modeling decisions, but

18

do you think he is not actually

19

reflecting -- do you think his

20

calculations somehow reflect a

21

misunderstanding of his own model?

22
23
24
25

Not -- not do you

MS. ELLSWORTH:

Object to the

form.
THE WITNESS:
not his model.

Well, this is

This is his

TSG Reporting - Worldwide

800-702-9580

Highly Confidential Attorneys' Eyes Only

Page 182
1

D. Card

2

adjustments to my model in my

3

original report.

4
5

BY MR. STRAWBRIDGE:
Q.

Thank you.

Thank you.

That's

6

correct.

7

you think he is misstating your -- you

8

referred to his understanding of the

9

model.

So I guess my question is do

Like I guess my question is do

10

you think that, setting aside the

11

modeling choices, there's something in

12

here that makes the calculations

13

incorrect because he is not accurately

14

reflecting the data that underlies your

15

model?

16

A.

I think these calculations are

17

correct.

18

to understand if these -- if his row

19

descriptions are a complete description

20

of everything he has done, but my

21

understanding, for example, row 1, tells

22

us that right from the beginning, this is

23

different than my -- the model in my

24

original report because he has excluded

25

the ALDCs.

I would have to read carefully

And then row 2 says he is
TSG Reporting - Worldwide

800-702-9580

Highly Confidential Attorneys' Eyes Only

Page 183
1
2

D. Card
doing interactions and so on.

3

Q.

Right.

But he didn't -- he

4

didn't, as far as you know, and I guess

5

your report doesn't contain any challenge

6

to the calculations of the numbers that

7

are reported here?

8
9
10

A.

I don't believe we found any

errors in this, I found any errors in
this calculation, no.

11

Q.

Okay.

You mention the fact

12

that you do what you call a robustness

13

analysis.

14

Exhibits 14 through 16 of your report or

15

18 of your report, rebuttal report?

16
17

A.

And that's set forth in

And sometimes in the footnotes

and other places, yes.

18

Q.

Right.

So let me just ask you

19

about Exhibit 13, which you just referred

20

to.

21

A.

Yes.

22

Q.

This is -- this is -- this is

23

a chart in which you purport to

24

demonstrate that if you make adjustments

25

to Professor Arcidiacono's model, it has
TSG Reporting - Worldwide

800-702-9580

Highly Confidential Attorneys' Eyes Only

Page 216
1

D. Card

2

A.

Yes.

3

Q.

And that is, in fact, what

4

this exhibit suggests, correct?

5

A.

Yes.

6

Q.

Okay.

Did you ever construct

7

a model of the personal rating in either

8

of your reports?

9

A.

No.

10

Q.

You referred several times to

11

Professor Arcidiacono's model, but you

12

did not do your own model of personal

13

rating, correct?

14

A.

Correct.

15

Q.

And is that because you felt

16

that there was not enough observables in

17

the data to estimate a reliable model of

18

the personal rating?

19

A.

I personally felt like we

20

could use the personal rating and the

21

academic rating and the extracurricular

22

rating as ratings.

23

other variables, some of the other

24

variables that go into the determination

25

of those ratings, and that it would be

We could include the

TSG Reporting - Worldwide

800-702-9580

Highly Confidential Attorneys' Eyes Only

Page 272
1
2
3
4

D. Card
BY MR. STRAWBRIDGE:
Q.

of racial bias?

5
6

MS. ELLSWORTH:

9
10

Object to the

form.

7
8

But it could also be because

THE WITNESS:

Well, I can't

actually rule that out.
BY MR. STRAWBRIDGE:
Q.

Can you come up with a logical

11

explanation as to why the essays would

12

explain that difference?

13

MS. ELLSWORTH:

14

THE WITNESS:

Objection.
No.

I haven't

15

really given any thought to that.

16

I -- it's pretty standard in this

17

kind of statistical analysis to

18

have unobserved components and to

19

be carefully thinking about what

20

exactly is missing and how that

21

could potentially play a role, but

22

it's -- in my experience it isn't

23

always useful to speculate much

24

more beyond that, just other than

25

to notice that there are lots of
TSG Reporting - Worldwide

800-702-9580

Highly Confidential Attorneys' Eyes Only

Page 277
1

D. Card

2

look at is Professor Arcidiacono's model,

3

correct?

4

A.

Correct, because I'm -- my

5

personal view is that we should use the

6

personal rating, rather than a model of

7

the personal rating.

8

personal rating as given.

9
10

Q.

Because Dean Fitzsimmons told

you race doesn't affect it?

11
12

You should take the

MS. ELLSWORTH:

Object to the

form.

13

THE WITNESS:

Well, because

14

among other pieces of evidence in

15

the records, it seems like the

16

general belief is that race is not

17

a component of a personal rating,

18

yeah.

19
20

BY MR. STRAWBRIDGE:
Q.

Do you think that -- do you

21

think that -- do you agree that there is

22

a gap in the personal ratings that white

23

applicants receive versus Asian

24

applicants?

25

A.

Yes.

Well, that's what we

TSG Reporting - Worldwide

800-702-9580

Highly Confidential Attorneys' Eyes Only

Page 282
1
2

D. Card
incentives of Harvard.

3

And I disagree with that type

4

of analysis -- that type of conclusion on

5

the basis of statistical evidence.

6
7

MR. STRAWBRIDGE:

Can we take

a short break?

8

MS. ELLSWORTH:

9

THE VIDEO OPERATOR:

10

is 3:13.

11

Okay.
The time

We are off the record.

(A recess was taken at

12

3:12�p.m., after which the deposition

13

resumed at 3:28 p.m.)

14

THE VIDEO OPERATOR:

15

is 3:28.

16

The time

record.

17
18

We are back on the

BY MR. STRAWBRIDGE:
Q.

Do you think that Asian

19

Americans on average have less attractive

20

personal qualities than white applicants

21

in Harvard's application pool?

22

MS. ELLSWORTH:

Objection.

23

Are you asking for a personal

24

opinion?

25

MR. STRAWBRIDGE:

No.

TSG Reporting - Worldwide

800-702-9580

39

Highly Confidential Attorneys' Eyes Only

Page 283
1

D. Card

2
3
4
5

THE WITNESS:

I have no way of

knowing that.
BY MR. STRAWBRIDGE:
Q.

Can you think of -- do you

6

have any reason to believe that Asian

7

Americans are not as effervescent as

8

whites in Harvard's applicant pool?

9

MS. ELLSWORTH:

10
11
12
13

THE WITNESS:

BY MR. STRAWBRIDGE:
Q.

So it could be true?
MS. ELLSWORTH:

15

THE WITNESS:

17
18

I have no way of

knowing that.

14

16

Objection.

Objection.
May or may not

be true.
BY MR. STRAWBRIDGE:
Q.

It is one possible explanation

19

for the difference in their personal

20

ratings?

21
22
23

MS. ELLSWORTH:

Object to the

form.
THE WITNESS:

Well, if -- if

24

effervescence was, indeed, a

25

significant determinative personal
TSG Reporting - Worldwide

800-702-9580

Highly Confidential Attorneys' Eyes Only

Page 284
1

D. Card

2

rating conditional on the other

3

factors then -- and you could

4

measure effervescence and you found

5

that, I guess I would -- then I

6

would say, well, you found that and

7

I would agree with it, but no one

8

has done that exercise so I don't

9

really know what to say.

10
11

BY MR. STRAWBRIDGE:
Q.

Well, someone's assigned

12

personal ratings to all of the

13

applicants?

14

A.

They are, yes.

15

Q.

Right.

So I am just asking,

16

do you -- do you think that an

17

explanation for the gap in the personal

18

ratings between Asian Americans and white

19

applicants is a lack of effervescence in

20

the Asian American pool?

21
22
23

MS. ELLSWORTH:

Object to the

form.
THE WITNESS:

I think the --

24

my understanding is that the

25

readers look for something they
TSG Reporting - Worldwide

800-702-9580

Highly Confidential Attorneys' Eyes Only

Page 285
1

D. Card

2

call personal qualities.

3

don't exactly know what those are,

4

but they -- they talk about that in

5

some of the materials I've seen.

6

And so I think that what I

And I

7

would probably believe to be true

8

is that they see slightly fewer

9

personal qualities conditional on

10

academic qualities.

11

all conditional on academic

12

qualities.

13
14
15

Again, this is

BY MR. STRAWBRIDGE:
Q.

And why do you think that's

the case?

16

A.

I don't know exactly.

17

Q.

Well, you can't rule out the

18

fact that it is racial bias.

19

explanation could there be for why the

20

white applicants in Harvard's pool

21

receive higher personal ratings than the

22

Asian American applicants?

23

MS. ELLSWORTH:

24

THE WITNESS:

25

What other

Objection.
I don't really

-- I haven't really given that any
TSG Reporting - Worldwide

800-702-9580

Highly Confidential Attorneys' Eyes Only

Page 286
1
2
3
4

D. Card
thought directly.
BY MR. STRAWBRIDGE:
Q.

Isn't that the entire question

5

that we need to answer when we decide

6

whether the personal ratings should be

7

included in the model?

8
9

MS. ELLSWORTH:

Object to the

form.

10

THE WITNESS:

No, not at all,

11

because we see a difference between

12

Asian applicants and white

13

applicants in their extracurricular

14

rating and their academic rating,

15

statistically significant positive

16

gap.

17

I don't think that -- and, in

18

fact, I would never conclude that

19

that means that there is positive

20

racial bias in favor of Asian

21

applicants.

22

significant coefficient doesn't say

23

that there is a racial animus

24

against whites in the assignment of

25

academic credentials.

So the presence of a

TSG Reporting - Worldwide

800-702-9580

Highly Confidential Attorneys' Eyes Only

Page 289
1

D. Card

2

break, one question would be:

3

Americans as a whole have higher or lower

4

or the same personal qualities as, say,

5

white Americans?

6

Do Asian

But that's not really what's

7

relevant for my statistical model.

8

-- my interpretation of how someone might

9

answer that would be they might be

And I

10

thinking, well, as a whole, they are the

11

same, but when I'm assigning the personal

12

rating, what's relevant is I have got

13

some of these characteristics that I can

14

see, and some that I can't.

15

deficit on some of the ones that I can't

16

see.

17

There is a

So that could contribute to a

18

negative coefficient for Asians in that

19

assignment, just as there must be some or

20

there -- my interpretation is there must

21

be some unobserved characteristics of the

22

academic credentials of Asian Americans,

23

conditional on this broad set of other

24

academic qualities that we can observe in

25

the data and that Professor Arcidiacono
TSG Reporting - Worldwide

800-702-9580

Highly Confidential Attorneys' Eyes Only

Page 310
1
2

D. Card
A.

Let me look at my -- the

3

appendix -- you don't have tabs on

4

appendices here, so I am having a little

5

bit of trouble finding the right tabs.

6
7

Q.

If I told you it was 46, does

that number sound more or less correct?

8

A.

46 per year?

9

Q.

46 parental occupations.

10

A.

It seems to show in my

11

Exhibit 28 of my -- of my rebuttal report

12

that there is 28 categories -- 23

13

categories, excuse me.

14
15

Q.

23 categories for fathers,

right?

16

A.

Yes.

17

Q.

And 23 categories for mothers?

18

A.

Yes.

19

Q.

So that's 46, right?

20

A.

Correct.

21

And then there is

one omitted for each.

22

Q.

So 47?

23

A.

44.

24

Q.

48?

25

A.

44.
TSG Reporting - Worldwide

800-702-9580

Highly Confidential Attorneys' Eyes Only

Page 315
1

D. Card

2

prevent them from performing a stronger

3

role as they would in the model, if I had

4

some measures that did not have that

5

misclassification error.

6

Q.

We discussed this earlier, but

7

I just want to make sure I understand.

8

When you were deciding to put the

9

parental occupations in, did you test for

10
11

statistical significance?
A.

I'm not entirely sure of

12

whether, at what stage of the analysis

13

that kind of exercise would have been

14

done, so I can't say for sure.

15

Q.

You don't dispute that some of

16

the parental occupation categories vary

17

substantially from year to year?

18
19

MS. ELLSWORTH:

Object to the

form.

20

THE WITNESS:

I don't dispute

21

that, for example, the category

22

unemployed disappears in some

23

years, and so one of the reasons --

24

or is much less frequent in some

25

years.
TSG Reporting - Worldwide

800-702-9580

Highly Confidential Attorneys' Eyes Only

Page 320
1
2

D. Card
for each race, your model?

3

A.

No.

4

Q.

None of that is disclosed

5

anywhere in your report, I take it?

6

A.

That I --

7

Q.

There is no -- there is no

8

such estimations disclosed anywhere in

9

your report?

10

MS. ELLSWORTH:

11

form.

12

Object to the

BY MR. STRAWBRIDGE:

13
14

Q.

If you didn't do it, you

couldn't put it in your report?

15

A.

I believe that would be true.

16

Q.

It's not a trick question.

17

It's just late in the day.

18
19
20
21

Can you turn to Table 5.1N of
Mr. Arcidiacono's rebuttal report.
A.

Would this be in the text or

in the appendix?

22

Q.

It is page 47 of the report.

23

A.

Okay.

24

Q.

Did you in your rebuttal

25

report disclose any -- any dispute with
TSG Reporting - Worldwide

800-702-9580

Highly Confidential Attorneys' Eyes Only

Page 321
1
2

D. Card
the calculations on this table?

3

A.

No, I don't think so.

4

Q.

Is it also true with respect

5
6
7
8
9

to Table 5.2N, which is on page 50?
A.

12
13
14

Q.

And is that also true with

respect to 5.3N?
MS. ELLSWORTH:

What is the

question exactly?
BY MR. STRAWBRIDGE:
Q.

Does he have any dispute with

those calculations?

15
16

I agree with the calculations

underlying this table, yeah.

10
11

No.

MS. ELLSWORTH:

Just want to

know if there is any dispute --

17

THE WITNESS:

I do have a

18

dispute with the calculation in

19

Table 5.3N, yes.

20
21
22

BY MR. STRAWBRIDGE:
Q.

Did you disclose that dispute

in your rebuttal report?

23

A.

No.

24

Q.

What is your dispute?

25

A.

Well, this gets to a question
TSG Reporting - Worldwide

800-702-9580

Highly Confidential Attorneys' Eyes Only

Page 370
1

D. Card

2

A.

Oh.

3

Q.

So you conclude that the --

Yes.

4

that given the years that you just

5

described and the different racial

6

categories, that the actual probability

7

of seeing a pattern over a three-year

8

period is about 17 percent?

9

A.

Assuming for the sake of

10

simplicity that there's a 0.2 chance that

11

the group's average rate matches the

12

average admission rate for other

13

applicants, so that would be the same

14

kind of calculation that he does, so

15

assume that number, then take the 92

16

combinations, that's what I did.

17

Q.

You earlier said you didn't

18

challenge that number, you hadn't

19

challenged that calculation?

20
21

MS. ELLSWORTH:
form.

22
23
24
25

Object to the

THE WITNESS:

That 0.2 is his

calculation, yes.
BY MR. STRAWBRIDGE:
Q.

The -- your calculation
TSG Reporting - Worldwide

800-702-9580

Highly Confidential Attorneys' Eyes Only

Page 371
1

D. Card

2

assumes that each of those outcomes is

3

independent with one another?

4

A.

Yes.

5

Q.

Is that true?

6

A.

It would not be exactly true.

7

It would be -- it might be approximately

8

true, depending on the race group you are

9

thinking of.

10
11

Q.

What makes something

"approximately true"?

12

A.

Well, the actual calculation

13

for the permutations, I didn't try and

14

do.

15

calculation.

16

here.

17

I tried to do a simplified

Q.

That's what I have done

For example, you would agree,

18

right, that the Hispanic methodology

19

between IPEDS and the new methodology

20

does not differ?

21
22
23
24
25

MS. ELLSWORTH:

Object to the

form.
THE WITNESS:

No, I would

disagree with that.
BY MR. STRAWBRIDGE:
TSG Reporting - Worldwide

800-702-9580

Highly Confidential Attorneys' Eyes Only

Page 378
1

D. Card

2

one-pagers -- do you know what I mean by

3

a one-pager?

4

A.

5
6

I have a vague understanding

of what that is, yeah.
Q.

Have you seen any one-pagers

7

prepared by the admissions office during

8

the committee meeting process listing

9

IPED statistics before January 2013?

10
11

MS. ELLSWORTH:
form.

12
13
14
15

Object to the

THE WITNESS:

Repeat the

question again?
BY MR. STRAWBRIDGE:
Q.

Have you seen a one-pager

16

prepared by the admissions office during

17

the committee meeting process that lists

18

the IPED statistics prior to January

19

2013?

20
21
22

MS. ELLSWORTH:

Object to the

form.
THE WITNESS:

I have -- I have

23

only seen a couple of these forms,

24

and so I can't say I have done an

25

exhaustive search.

I was never

TSG Reporting - Worldwide

800-702-9580

Highly Confidential Attorneys' Eyes Only

Page 379
1

D. Card

2

searching for that.

3

believe I would have seen that.

4

But I don't

I believe the forms I looked

5

at are the ones that are referred

6

to in Professor Arcidiacono's

7

report.

8
9
10

BY MR. STRAWBRIDGE:
Q.

And you also referred to some

in some documents in your report, right?

11

A.

I did.

12

Q.

Have you -- did you see

13

Professor Arcidiacono's note that the

14

IPEDS' number was stored differently in

15

the admissions database as it was

16

produced to him before the 2017

17

admissions cycle versus after?

18

A.

I believe that there is a

19

different field that it is captured in,

20

that's right.

21

Q.

And your report doesn't

22

challenge the -- that statement in

23

Professor Arcidiacono's report?

24
25

MS. ELLSWORTH:

Objection to

form.
TSG Reporting - Worldwide

800-702-9580

Highly Confidential Attorneys' Eyes Only

Page 380
1

D. Card

2

THE WITNESS:

I don't know

3

whether that field existed before,

4

but that's my understanding.

5

information has to be obtained from

6

a different field.

7
8
9

That

BY MR. STRAWBRIDGE:
Q.

You noted that there was a

calculation error in calculating the

10

standard error of his double difference

11

in chart 2.6N in your rebuttal report?

12

A.

Yes.

13

Q.

He has acknowledged that

14

error?

15

A.

Yes.

16

Q.

I will go ahead and mark the

17

supplemental report.

18

(Card Deposition Exhibit

19

14, Errata to Rebuttal Expert Report of

20

Peter S. Arcidiacono, was marked for

21

identification.)

22
23
24
25

THE WITNESS:

Yes.

BY MR. STRAWBRIDGE:
Q.

Do you dispute the math for

his new calculation for standard error?
TSG Reporting - Worldwide

800-702-9580

Highly Confidential Attorneys' Eyes Only

Page 387
1

NAME OF CASE:

2

DATE OF DEPOSITION:

3

NAME OF WITNESS:

4

Reason Codes:

5

1.

To clarify the record.

6

2.

To conform to the facts.

7

3.

To correct transcription errors.

8

Page ______ Line ______ Reason ______

9

From _____________________ to _____________________

10

Page ______ Line ______ Reason ______

11

From _____________________ to _____________________

12

Page ______ Line ______ Reason ______

13

From _____________________ to _____________________

14

Page ______ Line ______ Reason ______

15

From _____________________ to _____________________

16

Page ______ Line ______ Reason ______

17

From _____________________ to _____________________

18

Page ______ Line ______ Reason ______

19

From _____________________ to _____________________

20

Page ______ Line ______ Reason ______

21

From _____________________ to _____________________

22

Page ______ Line ______ Reason ______

23

From _____________________ to _____________________

24
25

________________________
TSG Reporting - Worldwide

800-702-9580

SFFA v. Harvard, D. Mass. 14-cv-14176
April 27, 2018
David Card

Please see attached errata sheet.

Page

Line

Instruction

Reason for Change