Problematic Gender Quotas at Harvard Law

20 Responses

1. David Glenn says:

That’s is why some people say it’s hard to make it to Harvard Law School. Is it?

2. Brett Bellmore says:

Are you willing to entertain the idea that the prior hiring pattern was simply a result of neutral application of existing standards? Not conclude it, mind you, but entertain it?

Unless you’re willing to contemplate a non-discriminatory process not reproducing the output of a strict quota, how are you not demanding a quota? What are the odds a non-discriminatory process would actually produce strict numerical results?

3. prometheefeu says:

Doesn’t this depend upon the causes of the prior hires? If social pressures as a whole shrink the pool of qualified female applicants, Harvard can hardly be blamed for that and a strict 50-50 quota is going to lower the quality of professors.

4. You either did not notice that “my” post was a clip and paste (using TypePad’s “blog it” feature) of a Nick Rosenkranz post at Volokh’s blog or thought it unnecessary to point that fact out.

5. Brett Bellmore says:

I noticed your last line, which I was responding to.

You really need to at least be open to the possibility that statistical disparities are the result of something other than discrimination. If you’re going to declare any divergence from strict statistical equality to be proof positive of discrimination, which must be remedied, then all you’re doing is imposing a quota in the guise of opposing discrimination.

6. Brett, that’s pretty simple. The odds of a 3/3 gender split in a group of six new hires is about 1 in 3.

I tried to run the math on the likelihood that a neutral process would create a 75 to 17 disparity. I had trouble calculating it; perhaps one of our more mathematically talented readers can run it. Unless I’ve completely miscalculated, I believe it’s well under a 1 in 10,000 chance.

7. Kaimi says:

Professor Bainbridge,

Sorry for the mix-up. I saw that it was a portion of the Volokh post. Because it was quoted in the manner it was, I thought you were intending to focus on the issue that the 3/3 divide was probably the result of a quota. If that wasn’t your intent, I’m sorry that I misrepresented you.

Brett Bellmore says,

“You really need to at least be open to the possibility that statistical disparities are the result of something other than discrimination.”

Well, of course. The prior pattern could have been the result of something other than discrimination. Absolutely. That is definitely a statistical possibility.

How _much_ of a statistical possibility?

A friend of mine pointed me to some tools to calculate the probability: If we have a fair coin, and we flip it 92 times, the likelihood that we will end up with 17 heads is about 0.000000028%. When you add in the possibility of zero-to-17 heads, the likelihood is very slightly higher. In fraction terms, it’s about a one-in-three-billion chance.

So, let’s be consistent here. If we should “at least be open to the possibility” that a one-in-three-billion result (17 of 92) is the product of something-other-than-discrimination, then shouldn’t we be significantly more forgiving — say, a billion times more — of a result (3 of 6) that has a one-in-three chance of simply being how the cards fell?

And if on the flip side, we have any suspicion that 3-of-6 might be an indicator of impropriety — then, holy cow, we ought to be livid about 17-of 92.

Right?

8. Brett Bellmore says:

“I tried to run the math on the likelihood that a neutral process would create a 75 to 17 disparity. I had trouble calculating it; perhaps one of our more mathematically talented readers can run it. Unless I’ve completely miscalculated, I believe it’s well under a 1 in 10,000 chance.”

I’m not suggesting chance. I’m suggesting that the assumption that there are no differences in the numbers of qualified applicants of one gender compared to the other is just that, an assumption, and not a very well grounded one, at that.

9. anon says:

Kaimi,

You are assuming *both* an equal number of men and women candidates in all hiring years *and* that the men and women actually on the market were equally qualified. The first assumption is demonstrably false. The second may be false, too.

10. Anon, do you have actual hiring data?

11. As to your assertion about my claim – no, I’m not making either of those statements.

12. Brett Bellmore says:

No, clearly you are, because absent those assumptions, there’s no reason to expect that a non-discriminatory process would result in equal numbers of male and female candidates being accepted.

13. Kaimi says:

Brett, no I’m not. Let’s go through this slowly.

First, I’m not saying that exactly equal numbers are the only appropriate result. There’s going to be some variation, absolutely.

Your claim that I’m demanding a strict quota is a straw man. Or straw woman, as the case may be.

Second, I’m not starting from any assumption that there must be equal numbers of both genders in the applicant pool. In fact, I’m reasonably sure that for at least some portions of the hiring of some of these professors, there were _not_ equal numbers in the applicant pool.

Your claim that a 72 to 15 disparity (slightly more than 80-20 by percentage) could only be an indicator of discrimination if the hiring pool was 50-50, is bizarre and obviously not sustainable.

If the hiring pool is 60-40 and the decisions are 80-20, that could definitely be evidence of a discriminatory pattern. If the pool is 66-33 and the decisions are 80-20, that could definitely be evidence of a discriminatory pattern. And so forth.

Thus, it is NOT the case that, unless the hiring pool is 50-50, an 80-20 hiring pattern could not be evidence of discrimination.

Does that make sense? This seems pretty basic to me, and your insistence to the contrary is a little bewildering.

14. Kaimi says:

As for my purported demand for a strict quota, I’ve made no statement of the sort, here or elsewhere, and I don’t believe that.

I do think that a highly out-of-whack hiring pattern is something that ought to “raise a suspicious judicial eyebrow” (to borrow a phrase) and trigger some serious discussion. It’s not impossible that this particular set of hiring decisions is in fact the product of neutral factors applied without bias; but, when the already-dominant group is favored at an 80-20 ratio, it’s a pretty basic next step to say, this looks a little out of line, and it raises obvious concerns that the decisionmaking process may not be unbiased.

15. Brett Bellmore says:

Kaimi, what you’ve just demonstrated is my point: The claim of discrimination, far from being established by the 72-15 disparity and a bit of math, is fundamentally dependent on an empirical investigation of the nature of the hiring pool and the selection process. Without investigating those two factors, there simply isn’t any basis for claiming discrimination. Because the disparity we should be looking for is not one between those hired, and the general population, but between those hired, and the appropriately qualified pool of applicants.

And yet, those factors don’t enter AT ALL into your analysis I was objecting to. You talk about a “fair coin”, but we have no a priori knowledge of the actual coin weighting. None at all.

We have as much basis for declaring the 1-1 ratio “out of whack” as we do the 72-15 ratio. That’s what I want the Prof. to notice.

16. Empiricist says:

Kaimi –

All of this talk of “if the hiring pool was 50-50,” “if the hiring pool was 60-40,” etc., is really getting on my nerves. AALS collects these numbers. They publish them on their website (at least through 2009 or so). You don’t need to guess or use hypotheticals. Just go look them up. (I did over the weekend. It looks like the pool usually skews between 60-40 and 67-33 in favor of male candidates).

Also, I’ll just note that the 72-15 ratio is for faculty members, and not new hires, and it likely includes members hired decades ago. It might be evidence that past hiring practices were discriminatory, or tenure review is discriminatory, but it says very little about current entry-level hiring.

17. Lawrence Cunningham says:

It would have been wonderful if our civilization would have allowed the Dean and faculty of given schools to chart their own faulty hiring strategy as they deem fit. It is a shame that we have to have these conversations second-guessing, and debating without resolution, what the Harvard Dean and faculty have decided to do.

18. Brett Bellmore says:

I don’t see why schools should be any less subject to second guessing when it comes to discrimination than pizza parlors are. If anything, they appear to be more prone to engaging in deliberate discrimination, not less.

19. anon says:

(1) When I said you were making the two assumptions, I meant that the assumptions were necessary for the particular math you had in mind to be accurate. If the total pool for HLS alone were 17 women and 75 men, then you’ve got 100% chance of choosing 17 women and 75 men if you need 92 faculty members. The contents of the pool matters. And as for quality, your analysis assumes a fair coin, as others have noted.

(2) The point about variation in quality and pool over time is especially important. When Charles Fried was hired, I’m pretty sure there weren’t a ton of women “on the market.”

(3) This thing about comparing the 3-3 to the 17-75 is ridiculous. For the most recent years, we don’t have to infer anything from the data because we actually know the plan: Barron told us they have a quota/balancing rule at each stage.

20. AYY says:

“It would have been wonderful if our civilization would have allowed the Dean and faculty of given schools to chart their own faulty hiring strategy as they deem fit.”

That’s an interesting comment from a law prof who blogs. Are you saying we shouldn’t have fair employment laws or that we shouldn’t have legal blogs (or both)?