JB

Stuart Buck points to some very puzzling language in Justice O'Connor's opinion:

The Law School's educational judgment that such diversity is essential to its educational mission is one to which we defer. The Law School's assessment that diversity will, in fact, yield educational benefits is substantiated by respondents and their amici. Our scrutiny of the interest asserted by the Law School is no less strict for taking into account complex educational judgments in an area that lies primarily within the expertise of the university. Our holding today is in keeping with our tradition of giving a degree of deference to a university's academic decisions, within constitutionally prescribed limits. See Regents of Univ. of Mich. v. Ewing, 474 U.S. 214, 225 (1985); Board of Curators of Univ. of Mo. v. Horowitz, 435 U.S. 78, 96, n. 6 (1978); Bakke, 438 U.S., at 319, n. 53 (opinion of Powell, J.).

Stuart points out that this makes little sense if the court is applying the strict scrutiny that it says applies to all racial classifications, and regardless of whether whites or minorities are harmed or benefitted.

[N]ever have I seen a case in which a court announced that an entity accused of racial discrimination was to be given deference as to its claim that the discrimination at issue produced positive benefits. Supporters of affirmative action would do well to think hard and long before applauding this sort of analysis. (Unless, that is, the Court takes the unprincipled route of limiting the application of deference to this particular case.)

[Is that last parenthetical a reference to Bush v. Gore?]

I also found the language about deference rather striking, although for somewhat different reasons. The issue at stake in Grutter is whether Michigan is unconstitutionally discriminating on the basis of race. The Court seems to be giving them the benefit of the doubt because, presumably, it thinks that Michigan's decisionmaking process is benign rather than invidious.

I think this demonstrates, rather conclusively, that the majority is not applying strict scrutiny, even if they say they are. And it also seems to demonstrate that the Court has effectively adopted a distinction between benign and invidious motivation even though they deny it. Both of these positions are inconsistent with what the Court says in Adarand. (Although, I must point out, even Adarand is not really consistent with the rule it announces, because had the government contracting policies in that case favored whites instead of minorities, the Court would not have sent the case back for further hearings to see if the policy satisifed strict scrutiny but would have struck the policy down immediately.)

Thus, it seems that to this extent Justice Marshall and Justice Brennan's position in Bakke has won out, although nobody is willing to admit it. Even though Stuart and I probably don't agree about the result in Grutter, I am sure that he agrees with me that it would be better to be honest about what the Court is doing rather than to hide behind these particular legal fictions.