Friday, July 01, 2005

Maybe this will speed up the clock 

I'm not going to speculate on the succession of Justice O'Connor or filibusters or the like. I'm sure you'll hear some of that talk tomorrow on NARN, coming live again from the White Bear Lake Superstore where there's going to be a Fourth of July party going on. But for conservatives in higher ed, O'Connor's departure is a good thing because it's worrying the left in academia no end.
Her departure is being lamented by many lawyers working on higher-education issues, who saw her as a voice of moderation and pragmatism at the Supreme Court. Her retirement could lead to a bitter fight in the Senate over her successor....

Justice O'Connor's biggest impact on higher education may have come through the majority opinion that she wrote in the Supreme Court's 2003 ruling in Grutter v. Bollinger, in which the court voted, 5 to 4, to uphold the use of race-conscious admissions by the University of Michigan at Ann Arbor's law school.

In that opinion, she concluded that the educational and societal benefits of a diverse student body justified colleges' consideration of the race or ethnicity of applicants, but she also cautioned that colleges needed to consider race-neutral alternatives to such policies and to consider applicants as individuals. She suggested that such policies may be much harder to defend in court 25 years down the road.

She is portrayed as a champion of gender equity, including expansion of the use of Title IX in a flip-flop of an opinion she gave a year earlier, and she's the author of Adarand v Pena decision. While I am not a court-watcher, I think it's likely her successor is going to get a great deal of scrutiny over gender-equity issues; it's a less visible litmus test than Roe, but cuts on the same bias.

Scholar Dave, now in comfortable retirement, reminds us of O'Connor's bizarre sunset provision for race-based admissions policies.

Anyway, the show should be fun tomorrow. We're collecting items for Operation Minnesota Nice, and we'd like to see many of our listeners come out and support our troops. If you can't make it, tune in.