Plessy
really doesn't work as the comparison case here, since that was a case of the
majority (caucasians) using the political process to advantage themselves and
(more importantly) to disadvantage a political minority ... a political minority
that was virtually powerless politically.
Affirmative action is a case where the majority (caucasians) are using
the political process to DISadvantage themselves, and to advantage a political
minority.
It
seems to me analytically essential that we remember that O'Connor did NOT say
that Michigan MUST practice affirmative action, but rather that Michigan MAY
practice affirmative action.
Does
this settle the question of the constitutionality of affirmative action? Not at
all ... but it is very important that we recognize critical political and legal
distinctions in these cases.
-
Gordon
*************************************************
Gordon Silverstein
Assistant Professor of Political
Science
210 Barrows Hall, #1950
The University of California,
Berkeley
Berkeley, CA
94720-1950
**************************************************
-----Original Message-----
From: Discussion list for con law professors [mailto:[EMAIL PROTECTED] On Behalf Of Robert Justin Lipkin
Sent: Thursday, June 26, 2003 2:49 PM
To: [EMAIL PROTECTED]
Subject: Re: Puzzles re: Grutter and Korematsu - is deference compatible with strict s...
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
