A fairly recent book on the overview on the Court's use of these standards (arguing they serve as a gatekeeper function) can be found in: Gerstmann, Evan. 1999. The Constitutional Underclass: Gays, Lesbians and the Failure of Class-Based Equal Protection. Chicago: University of Chicago Press.
On what the exact components mean, Croson, for example, had a much more detailed explanation of what counts as "compelling" (statistical test of disparity between available and utilized minority contractors) and "narrowly tailored" (5 part test) than do the Bollinger cases. The circuit courts following Croson battled it out for unanswered questions (e.g., post-enactment evidence, federal gov't vs. states, gender and disability standards, standing) until the Court ruled again on some of these questions (Northeastern Contractors; Adarand). These Michigan cases are fairly weak on the details, but there are some vague contours there that will be clarified over the next several years at the lower court level. On another note, anyone else struck by (troubled) by the reliance on social science for the proposition that diversity is a positive in education. If a book comes along disputing (skewering) Shape of the River, should Grutter be overruled? Martin J. Sweet Dickinson College >===== Original Message From Discussion list for con law professors <[EMAIL PROTECTED]> ===== > I have a minor (I hope) question about strict scrutiny and Grutter. >Justice O'Connor maintains that the Court should defer to the University >regarding whether diversity is essential to the University's educational mission. >She then denies that this implies that the court's scrutiny is any less strict >as a result. I seem to recall similar deference in Korematsu. My understanding >of strict scrutiny is that when the test is applied deference is >inappropriate. My question then is this: Is there a general account (or for that matter >any account at all) of when (how?) deference is permissible when strictly >scrutinizing government action. > > One quick additional question. Is there literature specifically >examining the justification of judge-made tests such as "strict scrutiny." >And, as a reporter asked yesterday, how do we know what the definition of >"compelling purpose" or "narrow tailoring" is? Thanks. > > >Bobby Lipkin >Widener University School of Law >Delaware ******************* Martin J. Sweet Assistant Professor Department of Political Science Dickinson College Carlisle, PA 17013
