Perhaps my view is skewed by my Masters degree in Library Science, but I am
shaken by the Court's deference to elite educators of future (legal) leaders
in the Michigtan law school case as contrasted with the unspoken (but
clearly visibile) contempt for librarians in the software filtering case
(notice that librarians are seen as mere servants by the majority as opposed
to lawyers being legal champions against government overreaching in the
earlier case on funding legal aid lawyers).
Seems to me a shadowy reflection of the unacceptable aristocratic bias
the anti-federalists saw in the Federalist's proposed constitution back in
1780's. I had thought this edge had been at least somewhat removed from the
docutment by later amendments.
Malla Pollack
Visiting, Univ. of Oregon, Law
541-346-1599
[EMAIL PROTECTED]
----- Original Message -----
From: "sweetm" <[EMAIL PROTECTED]>
To: <[EMAIL PROTECTED]>
Sent: Tuesday, June 24, 2003 8:17 AM
Subject: Re: Puzzles re: Grutter and Korematsu
> 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
>
>
