The Amicus Brief is fantastic. I was concerned at first because there are two specific areas that I initially disagreed but I'm re-thinking.
My first disagreement was the idea that race is a group rather than an individual trait. I see most of the problems caused by race-based thinking as resulting from ingroup-outgroup psychology, that thinking of race as a group that you are a "member" of, rather than an individual trait like hair color or eye color, tends toward evoking tribalist "us vs them" instincts and ultimately both stereotypes and fallacies of division.
That is, saying "men are taller than women" is true statistically at the group level but cannot be applied to individual members to claim that a 5' man has "height privilege" and a 6' woman is short. Yet, that is the type of fallacy of division that CRT and related beliefs have at their core, and is the basis of the irrationality of the Harvard/school preferential treatment of individuals based on group statistics.
Hence, I think/thought the proper objection is to note that race is a feature of individuals, not a group membership, in the same way that height is a feature of individuals and not a group membership, and using race as a proxy for different experiences is no different from using genders as a proxy for height; it is a form of stereotyping by group membership rather than measuring the individual trait, which may correlate but are unnecessary and crude proxies. (The amicus makes this argument well on page 12 about actual hardships, joy, etc.)
But, from reading this brief, I accept the nuance espoused in it that does a good job to explain why race is better seen as a group membership in the context of this case, that Grutter allows for consideration of race as an individual trait (which would be somewhat consistent with what I say above), but that it has no practical use at the individual and can only ever be applied to individuals based on group contexts such as statistics and stereotypes, as is done by these schools. (It also further implicitly argues that, unlike height, race cannot be defined at the individual level by only in the context of statistical differences of genetics and ancestry, and imprecisely at that.)
OK, I'm swayed. Good argument.
My second concern is, perhaps, addressed in a different way. From my perspective, one of the practical problems (as opposed to moral problems) of adding "points" for race instead of merit-based is that it simply trades one statistical difference for another.
For example, lets take SAT as one measure of merit. If you have a purely merit-based system based on SAT, but there is a correlation of SAT scores with race. OK, then you will have a statistically disproportionate number of different races at the school, but they will be distributed across the grade range, given the correlation between SAT and grades.
Now suppose Woke U decides to adjust entry criteria to achieve numerical proportionate outcomes by general population. To do this they decrease the minimum SAT required by individuals of Race A (who are overrepresented) to get in and increase the minimum SAT required by Race B (who are underrepresented) to get in.
The effect then is to essentially remove all of the Race A students who get low marks in the class (e.g., C, D, F), and add in a lot of students from Race B who should (by SAT correlation) get even lower marks (mostly D and F). What this does is artificially inflate the average mark of Race A and artificially deflate the average marks of Race B.
So now Woke U has created an artificially inflated grade inequality which exacerbates stereotyping of Race A as the smart ones and Race B as the less intelligent race. And, it supplies statistical measurements by which people can now (incorrectly) claim is an objective measurement of how each race performs statistically. Even if marks are hidden, you can't hide who in class answers questions well, is more proficient in group discussions, study partners, etc.
To cover up that inequality, you'd need to now keep students from mingling, force grading on curves by race, and hide marking results from teachers to avoid them getting stereotypes. But that still just kicks the can down the road for when people have to apply that education in practice in which case the racial differences would be readily apparent. The ultimate result is that you can't possibly end discrimination this way.
I don't see this exact problem identified in the amicus. But, it does have a related proxy argument in the case of the mere knowledge of racial preference on entry now tainting all people of that race, creating an unconscious bias even within themselves, even for students of Race B who could have gotten there purely on their own merit. So I think the tradeoff is still there; it is just not as objectively measurable as to the artificially increased grade disparity example.
Overall, I think it is a great amicus, well-argued and well-cited.
The Amicus Brief is fantastic. I was concerned at first because there are two specific areas that I initially disagreed but I'm re-thinking.
My first disagreement was the idea that race is a group rather than an individual trait. I see most of the problems caused by race-based thinking as resulting from ingroup-outgroup psychology, that thinking of race as a group that you are a "member" of, rather than an individual trait like hair color or eye color, tends toward evoking tribalist "us vs them" instincts and ultimately both stereotypes and fallacies of division.
That is, saying "men are taller than women" is true statistically at the group level but cannot be applied to individual members to claim that a 5' man has "height privilege" and a 6' woman is short. Yet, that is the type of fallacy of division that CRT and related beliefs have at their core, and is the basis of the irrationality of the Harvard/school preferential treatment of individuals based on group statistics.
Hence, I think/thought the proper objection is to note that race is a feature of individuals, not a group membership, in the same way that height is a feature of individuals and not a group membership, and using race as a proxy for different experiences is no different from using genders as a proxy for height; it is a form of stereotyping by group membership rather than measuring the individual trait, which may correlate but are unnecessary and crude proxies. (The amicus makes this argument well on page 12 about actual hardships, joy, etc.)
But, from reading this brief, I accept the nuance espoused in it that does a good job to explain why race is better seen as a group membership in the context of this case, that Grutter allows for consideration of race as an individual trait (which would be somewhat consistent with what I say above), but that it has no practical use at the individual and can only ever be applied to individuals based on group contexts such as statistics and stereotypes, as is done by these schools. (It also further implicitly argues that, unlike height, race cannot be defined at the individual level by only in the context of statistical differences of genetics and ancestry, and imprecisely at that.)
OK, I'm swayed. Good argument.
My second concern is, perhaps, addressed in a different way. From my perspective, one of the practical problems (as opposed to moral problems) of adding "points" for race instead of merit-based is that it simply trades one statistical difference for another.
For example, lets take SAT as one measure of merit. If you have a purely merit-based system based on SAT, but there is a correlation of SAT scores with race. OK, then you will have a statistically disproportionate number of different races at the school, but they will be distributed across the grade range, given the correlation between SAT and grades.
Now suppose Woke U decides to adjust entry criteria to achieve numerical proportionate outcomes by general population. To do this they decrease the minimum SAT required by individuals of Race A (who are overrepresented) to get in and increase the minimum SAT required by Race B (who are underrepresented) to get in.
The effect then is to essentially remove all of the Race A students who get low marks in the class (e.g., C, D, F), and add in a lot of students from Race B who should (by SAT correlation) get even lower marks (mostly D and F). What this does is artificially inflate the average mark of Race A and artificially deflate the average marks of Race B.
So now Woke U has created an artificially inflated grade inequality which exacerbates stereotyping of Race A as the smart ones and Race B as the less intelligent race. And, it supplies statistical measurements by which people can now (incorrectly) claim is an objective measurement of how each race performs statistically. Even if marks are hidden, you can't hide who in class answers questions well, is more proficient in group discussions, study partners, etc.
To cover up that inequality, you'd need to now keep students from mingling, force grading on curves by race, and hide marking results from teachers to avoid them getting stereotypes. But that still just kicks the can down the road for when people have to apply that education in practice in which case the racial differences would be readily apparent. The ultimate result is that you can't possibly end discrimination this way.
I don't see this exact problem identified in the amicus. But, it does have a related proxy argument in the case of the mere knowledge of racial preference on entry now tainting all people of that race, creating an unconscious bias even within themselves, even for students of Race B who could have gotten there purely on their own merit. So I think the tradeoff is still there; it is just not as objectively measurable as to the artificially increased grade disparity example.
Overall, I think it is a great amicus, well-argued and well-cited.