Bobby Lipkin writes: "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."
Actually, I think O'Connor's opinion has an out for this Plessy problem. She argues deference is inappropriate if evidence state is motivated by illegitimate considerations, (racist or stereotypical assumptions. Pandering to individuals with these racists or stereotypical assumptions might qualify here) See e.g., VMI in which the Court refused to defer to VMI's judgment that same sex education was essential to providing diverse educational options in the state, concluding high likelihood that stereotypical ideas about gender roles motivated the decision. Here, no such evidence of bad Michigan motivation to distrust their judgment here. Also, even if O'Connor deferred to the educational judgment as a primary basis for finding a compelling governmental interest, that doesn't mean that she abdicated independent review. Her standard of review didn't require that she defer, even though she might decide she should defer in a particular circumstances. . For example, she could have decided that Michigan's educational mission, although important to the school, was so socially destructive that the society's interest trumps the universities and wasn't compelling enough to satisfy strict scrutiny . (I think the plessy situation would also fit here - even if court defers to state's conclusion that segregation is essential to the state's interest in safe travel, (perhaps 19th century whites were so hostile to black seat mates that would riot if forced to integrate, etc.,), she could still decide that segregation was such a destructive social force it cannot be held to have a compelling governmental interest). Here, O! 'Connor concluded that the school's interest was also a compelling interest for the society (and 6 other justices agreed with her.) But she didn't have to. It's up to the Court which is still in control. Contrast, if her position really was that the Court has no authority to override the state's judgment that it has a compelling governmental interest. Maybe she was doing this - perhaps taking a cue from folks who argue the Court ought to get out of the strict scrutiny business and these decisions to the political process. BUt I don't think her opinon has to be read that way yb ********************************************* Professor Yvette M. Barksdale Associate Professor of Law The John Marshall Law School 315 S. Plymouth Ct. Chicago, IL 60604 (312) 427-2737 (email:) [EMAIL PROTECTED] ***************************************************** > ---------- > From: Robert Justin Lipkin[SMTP:[EMAIL PROTECTED] > Reply To: Discussion list for con law professors > Sent: Thursday, June 26, 2003 4:49 PM > To: [EMAIL PROTECTED] > 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 mi> ssion 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 >
