I appreciate the distinction between general societal benefits of diversity, as
refelected in the military, social, and economic sectors, and diversity in education
as a route to these other benefits. I believe that Justice O'Connor, at least
verbally, articulates broad access to education as a primary value. She gives a lot
of reasons why access to education serves society, but she also adopts the principle
of access as one cherished for deep reasons of societal legitimacy that transcend one
particular goal. In the past, when the court has explained why education is
important, it has tended to go into practical recitations of why denying a segment of
the population, such as the children of illegal immigrants, an education, is not in
our interest, since someday the ill educated will cause us (the privileged class being
defined by the comparison at issue--thus, the average Texas school child, the
leadership class from the top schools, the unsuspended school child) trouble !
in the long run. Brown, by contrast, had a vision having to do with noninstrumental
concerns about the effect on black children of state educational segregation.
The more frequent instrumental rhetoric, however, would not seem to destroy the
court's sometime ownership of a broad vision of a society striving to provide fair
access to education in the interests of "the hearts and minds" of those asking for
access. The vision can be critiqued as lacking clarity, given that the plaintiffs in
Grutter were claiming denial of access, but the vision nonetheless has sufficient form
to rate as the court's own charter for educational access. That the court implements
the vision uncertainly, reserving it for the elite at times while occasionally
scanting it, as with permission for disparities in school funding or impaired access
in libraries to the internet window on the world, does not undo the factor in the
court's jurisprudence of a judicial vision of a rough justice in regulating access to
education. Finally, the factor of deference seems best understood as a willingness to
credit the university's good faith when it offers an expert view,!
based on experience, that it knows how to do diversity to enhance education, without
doing "simple racial politics."
Mae Kuykendall
>>> RJLipkin:
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
