Bobby Lipkin writes: "Instead of such skepticism Justice O'Connor's insists that "[t]the Law School's educational judgment that such diversity is essential to its education mission is one to which we defer." At this point when I first read the opinion I lost my breath."
Okay, I see where you could read this statement as deferring to the state even on the question of whether its interest was compelling. I agree that would rewrite the strict scrutiny requirement wholesale - not simply adapt it fit a particular context. However, the statement can be read in a less breathtaking way, to defer to the university only on the factual question of whether diversity is essential to its educational mission, but to decide herself , as a judicial matter, whether such diversity is a compelling governmental interest for purposes of strict scrutiny. For example, she later discusses in more detail the educational benefits of diversity not just for the school's educational institution, but for the society at large, and relies upon these broader benefits to support her conclusion that the university has a compelling governmental interest in attaining a critical mass of racial and ethnic minorities. These benefits range from 1) a diversity savvy populace (see her reference to military argument that diverse armed forces is essential to national security), to 2) better educated citizens, to 3) a racially and ethnically integrated and thus more legitimate civic life and power structure ( She states e.g., "Effective participation by members of all racial and ethnic groups in the civic life of our Nation is essential if the dream of one Nation, indivisible, is to be realized" ; and " to cultivate .... leaders with legitimacy in the eyes of the citizenry, ..... the path to leadership [must] be visibly open to talented and qualified individuals of every race and ethnicity.). I don't think such a use of deference is inconsistent with strict scrutiny. After all, how could the Court second guess the university on the factual question of whether diversity is essential to the school's educational mission, beyond evaluating, for example, whether it is making the argument in good faith, and requiring that it have a strong, well reasoned factual basis for this judgment. (she does both here) But, the ultimate legal question remains judicial - is protecting such an educational mission a compelling governmental interest which justifies using race in university admissions?. I think she makes this judgment herself and concludes yes, because of the institutional and larger social benefits that flow from such diversity. I agree that any deference to the state in racial discrimination cases is a potential double edged sword that could open up the doctrinal door to Korematsu like deference to the state in less salutory ways, including the state's knowing (or unwitting) reliance upon stereotypical or racist assumptions or attitudes But her Grutter opinion I think is really an anti racist argument about the importance of a racially inclusive society. And she leaves hooks to rein in a state that would use race in more destructive ways (she requires governmental good faith for example, and refers to strict scrutiny as a tool to "smoke-out" illegitimate governmental objectives, thus suggesting stricter scrutiny where there are suspicions of such objectives.) I also agree that this isn't the acontextual "symmetry is everything" O'Connor of Adarand. But I like to think her views perhaps have evolved (maybe due to the well-developed record in this case). 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: Robert Justin Lipkin[SMTP:[EMAIL PROTECTED] > Reply To: Discussion list for con law professors > Sent: Wednesday, June 25, 2003 4:14 PM > To: [EMAIL PROTECTED] > Subject: Re: Puzzles re: Grutter and Korematsu - is deference compatible > with strict s... > > In a message dated 6/25/2003 4:30:58 PM Eastern Daylight Time, [EMAIL PROTECTED] > writes: > > > > Contrast, Korematsu, for example, in which the Court simply accepted > wholesale, without any justification, government blanket assertions that the > wholesale removal of an entire ethnic group from a five state area was necessary to > protect national security interest. I agree Korematsu's deferential review was not > strict scrutiny, and maybe Grutter arguably goes too far. But that doesn't mean that > strict scrutiny precludes all deference. > > > > > But perhaps it should. The problem with the "degrees of deference" position > is that is begins to collapse the distinction between the different levels of > scrutiny. Consider Justice O'Connor's opinion in Grutter. In section IIIA, Justice > O'Connor writes "the Law School asks us to recognize, in the context of higher > education, a compelling state interest in student body diversity." She then argues > against the notion that Bakke forecloses using diversity in this manner or that > language in subsequent cases do also. Get ready for the denouement: "Today, we hold > that the Law School has a compelling interest in attaining a diverse student body." > At this point, one would expect skepticism, namely, something about how often the > government has used race to stigmatize and restrict minorities, etc. Instead of such > skepticism Justice O'Connor's insists that "[t]the Law School's educational judgment > that such diversity is essential to its education mission is one to which we def! er." At this point when I first read the opinion I lost my breadth. Is this same Justice O'Connor who wrote Adarand and rejected the distinction between benign and invidious discrimination because strict scrutiny of any racial classification is required to smoke out the invidious motive? I do not find any skepticism here at all. > > The problem with such terms as subtle, nuance, judgment, and degrees of > whatever is that these features of discursive discourse are too much like the best > of political reasoning. It raises the issue that if this is what courts do they need > to be significantly (directly?) accountable to the electorate in a deliberative > democracy or a republic.. That's the only guarantee that the electorate is truly > engaged in self-rule. > > Don't get me wrong. I'm in favor of affirmative action, but for the right > reasons, namely, to attempt to remedy incrementally our dreadful racial history. And > speaking bluntly, I find offensive the use of race in diversity as the only > compelling interest the Court will allow. It seems to me that race can be used as a > factor for reasons of diversity because that benefits whites as well. > > Bobby Lipkin > Widener University School of Law > Delaware >
