Re: Puzzles re: Grutter and Korematsu - is deference compatible with strict s...

[Robert Justin Lipkin]

In a message dated 6/26/2003 3:21:17 AM Eastern Daylight Time, [EMAIL PROTECTED] writes:

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.

       The judgment that diversity is a compelling interest is based on the factual judgment that diversity is essential to the Law School's educational mission. Deferring to the factual judgment is tantamount to deferring to the judgment of what counts as a compelling interest in this case. There doesn't appear to be much (any?) room between the former judgment and the latter judgment. And Justice O'Connor has no further reason further reason for regarding diversity as a compelling interest other than the Law School's educational mission and everything else that entails. (The educational mission is the first step--and is tied to--all the other social benefits of diversity.)

       The Court is in effect holding that "[t]he Law School has a compelling interest in attaining a diverse student body" because it defers to the Law School's educational judgment that "diversity is essential to its educational mission." If such deference is legitimate, it applies to both the question of fact and the question of law.  Indeed, the question of fact is necessary to the question of law.  Thus, I do not see how one can separate these two issues in this case.

       Think of it this way.  Suppose the standard of review in Plessy was strict scrutiny.  The Court might then say that segregation is a compelling interest. It might go on to say that the State's judgment that segregation is essential to its mission of safely transporting blacks and whites across the country is one to which the Court defers. It is precisely this 'factual' judgment tying segregation to safe transportation that the Court should challenge so that it may further challenge the Court's judgment that segregation is a compelling interest. But if Justice O'Connor had written Plessy instead of Justice Brown, she might have deferred to the State's judgment tying segregation to safe transportation.  It is precisely at this point that strict scrutiny should prompt the Court's skepticism. In short, strict scrutiny should be made of sterner stuff.

Bobby Lipkin
Widener University School of Law
Delaware