While it's true that Justice O'Connor recited that she deferred to the Law School's
educational judgment that diversity is essential to their mission, she also included a
long passage on the overriding national importance of the principle of broad access to
education: "the diffusion of knowledge and opportunity through public institutions of
higher education must be accessible to all individuals regardless or race or
ethnicity," and "ensuring that public institutions are open and available to all
segments of American society, including people of all races and ethnicities,
represents a paramount government objective, " (from U.S. brief as Amicus Curiae) and
"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 "In order to cultivate a set of leaders with legitimacy in the eyes of
the citizenry, it is necessary that the path to leadership be visibly ope!
n to talented and qualified individuals of every race and ethnicity." And more.
Justice O'Connor's use of the language about deferring to the law school's educational
mission is consistent with her endorsement of experimentation later in the opinion,
her general sense of states as a locus of hands-on judgments, and her point that
universities do not have to choose between diversity and excellence.
But the vision of a society with a compelling interest in broad access, for all
segments of society, to public institutions and to education belongs to the court.
O'Connor's paragraph on deferring to universities could perhaps have used a bit more
tweaking: it had more to do with with letting universities choose the package that
contains in it diversity and specific institutional missions than with the larger
conclusion, drawn from education cases (Plyler, Brown), that access to education, with
no group being shut out, is a fundamental interest of society.
Mae Kuykendall
R. J. Lipkin: "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.
