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

[Robert Justin Lipkin]

In a message dated 6/26/2003 7:48:06 PM Eastern Daylight Time, [EMAIL PROTECTED] writes:

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.

       I don't think one can escape from Plessy this easily. In both cases, laws burden members of a disfavored class (disfavored at least with respect to a certain benefit or entitlement). In Plessy, as we all of course know, the disfavored class was a demographic minority, namely, blacks. In Grutter, the class is those non-black-latino-native-americans who compete with the favored class. The fact that the drafters of the Law School plan were mostly white (I suppose) may be relevant to the overall evaluating of affirmative action, it does not entail, in my view,  rejecting Plessy as a good analogy regarding the issue of deference (and I would add, in my view, only regarding deference).

       Regarding the issue of deference in Grutter, I do not think the existence of additional social and political benefits of diversity is sufficient to separate Justice O'Connor's deference regarding the question of law--diversity as a compelling interest--and the question of fact--diversity is essential to the Law School's mission.  While the social, military, economic, and so forth effects of diversity would be sufficient generally to permit a Justice to regard diversity as a compelling interest, in this case, the judgment that diversity is a compelling interest derives, I would think, from diversity in education which represents the most obvious route to diversity in these other areas.

Bobby Lipkin
Widener University School of Law
Delaware