Sorry everyone, my keyboard has a mind of its own and sends out emails if i hit some accidental combo of keystrokes I have yet to understand.
The last paragraph of prior post should read. (and sorry for the length). The older I get the more longwinded I am. > (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 obviously less burdensome than placing every > member of a particular national origin within a five state area in a concentration > camp.) > 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: Barksdale, Yvette > Reply To: Discussion list for con law professors > Sent: Tuesday, June 24, 2003 7:03 PM > To: [EMAIL PROTECTED] > Subject: Re: Puzzles re: Grutter and Korematsu > > 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. > > 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 > > >
