Earlier in this thread, someone wondered whether the Court was operating
within a Marshallesque framework along the lines of his dissent in Rodriguez
where he said that the court had "applied a spectrum of standards" with the
Court's scrutiny dependent upon "the constitutional and societal importance
of the interest adversely affected and the recognized invidiousness of the
basis upon which the particular classification is drawn."
My own conclusions, drawn from reflecting on the alienage equal protection
cases, are that Marshall got it backwards. "Partial Membership: Aliens and
the Constitutional Community, 81 Iowa Law Rev. 707 (1996). I read the
Court's equal protection cases as a spectrum of standards controlled by the
Court's own perception of how much flexibility the governmental body needs
in carrying out its task. And thus, I concur with Mae's analysis that "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."
In the alienage arena, the court (if it is to be taken at face value) said
that aliens are a "discrete and insular minority" entitled to strict
scrutiny review of laws that classify aliens in a discriminitory manner.
The Court applied strict scrutiny in cases involving discrimination in state
welfare benefits, state civil service jobs, law licenses, etc. But, when
the Court faced situations where it thought that the state needed
flexibility to discriminate, it changed the test (what happened to strictly
scrutinizing the state's alleged reasons?) and gave deference to the states,
allowing states to discriminate in the hiring of teachers, police officers,
and probation officers. When the court faced challenges to federal
discrimination against aliens (federal law discriminating against aliens in
the civil service, for example), the court applied a rational basis standard
of review deferring to the government.
Outside of the immigration context, the same factor - the court's perception
of the governmental agency's need for flexibility - seems to control.
Cleburne is a prime example. Consistent with the court's prior cases, I see
no reason why the mentally retarded shouldn't have been treated as a
discrete and insular or quasi-discrete and insular minority except for the
fact that the Court (rightly, I might add) saw the need for government
flexibility in addressing the problems of the mentally retarded. Not
wanting to give absolute discretion, the court used its more active rational
basis review.
Could it be that "deference" to the Univ. re "diversity" is one more
instance where the Court, without deference to anyone, has concluded that
the powers that be require a degree of flexibility in carrying out its
mission? Discrimination against minorities is strict in theory and fatal in
fact because the Court can't concieve of any reason that the university
would need flexibility to discriminate *against* minorities, but it need not
be fatal-in-fact in the diversity/affirmative action area because the Court
wants to leave open some flexibility.
Sincerely,
Michael
-----Original Message-----
From: Robert Justin Lipkin
To: [EMAIL PROTECTED]
Sent: 6/26/2003 4:49 PM
Subject: Re: Puzzles re: Grutter and Korematsu - is deference compatible
with strict s...
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
