But isn't this recognition of the value of wide public access to knowledge shown to be only for the elite by the refusal to recognize the place of public libraries in Am. Lib. Assn v. USA? [obviously, I am being hyperbolic] Malla Pollack Visiting, Univ. of Oregon, Law 541-346-1599 [EMAIL PROTECTED] ----- Original Message ----- From: "Mae Kuykendall" <[EMAIL PROTECTED]> To: <[EMAIL PROTECTED]> Sent: Thursday, June 26, 2003 3:38 PM Subject: Re: Puzzles re: Grutter and Korematsu - is deference compatiblewith strict s...
> 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. > >
