RE: whether Grutter is consistent with other Supreme Court uses of the strict scrutiny standard:.
I think it is clear that there has never been a uniform strict scrutiny standard, so I don't think anything is new here. Strict scrutiny for First Amendment issues is different than for equal protection is different than for substantive due process etc. And, even within equal protection race cases, the Bakke strict scrutiny test with its "race okay as a factor" diverged from the Croson "race ok only used as minimally as conceivably possible to achieve narrowly defined goal." Indeed, probably the key UMICh litigation issue was whether the Bakke more deferential scrutiny survived Croson/Adarand. Hopwood said it didn't. Grutter made clear that it did. As to whether a uniform level of deference should apply whenever the "strict scrutiny" label is used, I think it can't if you want to make wise and just decisions. Again as O'Connor stated in Grutter "context is everything." For example, the Croson objective mathematical statistical analysis simply won't work for the more subjective fact specific university admission context, unless you turn university admissions into a strictly by the numbers game, which the Court has consistently rejected. Croson's government contracting decisions are by their nature more mathematical (lowest bid has to win to avoid patronage problems). Ditto the interest of "remedying past discrimination" . You can put a number to it, to some extent, at least as narrowly defined by the court. What were the actual depressive effects of City's own past discrimination on the number of minority contracts with the City of Richmond? What is the minimum race preference that is needed to reverse those depressive effects? How did one arrive at these numbers? Were the methods statistically valid? Are there less discriminatory means that would achieve those same numbers? These are questions capable, at least theoretically, of numerical proof. In contrast university admissions decisions are notoriously contextual, factor-based decisions. of academic judgment which are hard to review. Is candidate A better than candidate B.? How is a court to know? The court must defer to an academic judgment based upon expertise of the admissions people. What number of minority students is needed to achieve the educational benefits of diversity? Is this precisely quanitifiable without deference to the judgment of academics? How does a court determine the least discriminatory admission method that a school can use to achieve diversity without second guessing the subjective academic judgment of the school as to how to best carry out its educational mission? What if your lesser discriminatory means have adverse effects on the school's ability to accomplish its other academic goals? How is a court to objectively determine whether the school must sacrifice these academic goals to use lesser discriminatory means? So, to rigidly apply Croson to the state's academic judgment here, the court must either 1) toss out diversity, 2) require admissions by the numbers, with either a minority quota (bakke), or an automatic numerical diversity boost (Gratz). This way the court would have numbers to plug into its "narrowly tailored" statistical analyses. Is the numerical diversity boost larger than necessary to achieve the discrete diversity numerical goal?, or 3) require the state to sacrifice its other academic missions if doing so would achieve diversity by "race neutral means" . (this is basically the Thomas/Scalia approach - if the school wants to achieve diversity, it should be required to sacrifice selectivity, before it can use race as a factor). None of these approaches work. 1) Seven justices concluded diversity was a compelling governmental interest, so jettisoning it doesn't seem to be an option, 2) The Court considers numerical diversity "boosts" even more discriminatory and burdensome for nonminorities than the subjective "race as a factor" analysis, and 3) Requiring a state to sacrifice its central academic mission or educational judgment to achieve an admittedly compelling governmental goal seems a particularly perverse price to demand. Must the state may achieve its compelling governmental interest only at the expense of every other academic and institutional value? Anyway, where does the Court get the expertise to make this call. Isn't it better to simply recognize that 1) the Croson non-deferential narrowly statistical analysis simply doesn't fit the subjective academic decisionmaking present here, and to require them simply distorts the analysis in perverse ways, and 2) this "loosey-goosey" subjective academic decisionmaking, however amorphous, is, at least within reasonable boundaries, the least burdensome means of achieving the compelling governmental interest of diversity, 3) judicial deference to academic judgment is is warranted, as O'connor noted, where you have no evidence of racist, stereotypical or protectionist uses of race, which she posited, the strict scrutiny analysis was designed to smoke out. (Of course, as far as I can tell, for equal protection cases, the Supreme Court has only explicitly applied strict scrutiny to reverse discrimination cases - socalled "benign" discrimination against white plaintiffs (exception Korematsu, but, then the smoke-out didn't work too well there. Of course, the court ignored evidence of racist motives for the internment - among which the Korematus policies' drafter, General de Witt was a notorious racist. in any event, using race as one factor in choosing among thousands of applicants for a few hundred university seats to which no one applicant has any entitlement is obvioulsy a less destructive use of ethnicity race than member of a particular national origin within a five state area in a concentration camp is obviously a much more burdensome use of race than yb ********************************************* Professor Yvette M. Barksdale Associate Professor of Law The John Marshall Law School 315 S. Plymouth Ct. Chicago, IL 60604 (312) 427-2737 (email:) [EMAIL PROTECTED] ***************************************************** > ---------- > From: sweetm[SMTP:[EMAIL PROTECTED] > Reply To: Discussion list for con law professors > Sent: Tuesday, June 24, 2003 10:17 AM > To: [EMAIL PROTECTED] > 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 >
