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Grutter redo, part 2

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6 Responses

  1. Ian Samuel says:

    I agree. I posted something similar at Greyhame; I think this will be another split-the-difference pair, with one scheme upheld and the other scheme not.

  2. Michelle says:

    You beat me by a few hours. Great minds think alike!

  3. Shavar Jeffries says:

    Kozinski’s position seems farfetched. The Supreme Court’s approach to strict scrutiny, unfortunately, is much more formalistic: The Court does not decide whether to apply strict scrutiny on the substantive basis of the extent to which a classification racially stigmatizes one group or another; rather, after Croson and Adarand, the Court reflexively applies strict scrutiny whenever race-conscious decisionmaking is involved irrespective of the kind of racial harm caused by a particular classification.

    I surely would prefer an equal-protection clause in which judicial scrutiny turned, at least in part, on a qualitative evaluation of the kind of racial harm at issue, but the conservative majority of the Supreme Court has already foreclosed that possibility.

  4. Michelle says:

    I agree that Kozinski’s position seems “farfetched” particularly when you factor in Johnson v. California, which reaffirmed that strict scrutiny should apply to all racial classifications. Except . . . note how Kozinski distinguishes Johnson, essentially saying it was about forced “segregation” so, of course, strict scrutiny should apply. But in this case, there is no such “baggage,” and he argues that “there is much to be said for returning primacy on matters of educational policy to local officials.” Extremely shameless plug — Kozinski is essentially adopting a theory I floated in The Last Wave of Affirmative Action, Wisc. L. Rev.(1998). Obviously, Kozinski is “out there,” but his emphasis on local control may appeal to Kennedy, and his theory provides cover allowing Kennedy to occupy the vital center — where of course much of the power is.

  5. Simon says:

    The Supreme Court’s approach to strict scrutiny, unfortunately, is much more formalistic: The Court does not decide whether to apply strict scrutiny on the substantive basis of the extent to which a classification racially stigmatizes one group or another; rather, after Croson and Adarand, the Court reflexively applies strict scrutiny whenever race-conscious decisionmaking is involved irrespective of the kind of racial harm caused by a particular classification.

    I tend to think that is very much a good thing, myself. Scalia’s concurrences in the two cases you cite are some of the most powerful things he’s written on the bench, and I am at a loss to understand why you seem to use the term “formalist” as if it were an epithet.

  6. Shavar Jeffries says:

    Simon,

    I don’t think formalism on matters of practical significance is a good thing. Not all racial classifications are created equal precisely because the social reality of the way race affects our society is determinant and contextual.

    There’s a broad social distinction between laws designed to subordinate historically stigmatized groups and laws designed to counteract the effects of that subordination. As Justice Stevens wrote in his Adarand dissent, the empty formalism espoused by Scalia “disregard[s] the difference between a ‘No Trespassing’ sign and a welcome mat.’”

    Formalism results in the same standard being applied to classifications that are wildly dissmilar in social and cultural import. Whether a court should find constitutional any particular set of race-conscious decisions by government is of course a different question. But the formalism that essentially ignores the social realities of racial harm and deems any racial classification — irrespective of the quality of the harms it generates — presumptively invalid is of an altogether different order.

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