In Grutter, the Court held that a state university has a compelling interest "grounded in the First Amendment, of educational autonomy: The freedom of a university to make its own judgments as to education includes the selection of its student body." Moreover, the Court decided to defer to the university's "educational judgment" about whether racial diversity "is essential to its educational mission."
If this is a correct application of strict scrutiny, then doesn't it follow that VMI should have easily passed intermediate scrutiny when it argued that its educational autonomy and educational judgment required it to select a student body that was the most likely to thrive under "the unique VMI method [i.e. the adversative approach] of character development and leadership training?"
Was the intermediate scrutiny employed by the Court in VMI actually more strict (more "well done") than the so-called strict scrutiny applied in Grutter?
If so, is the Court acting like a court applying the law, or like an unelected national legislature decreeing its own particular version of good curricula on state universities? Should the Court be taken seriously when it uses this kind of subjective jurisprudence that seems to have so little contact with the actual Constitution, or even with the Court's own tests and standards of review?
The web log for Prof. Duncan's Constitutional Law Classes at Nebraska Law-- "[U]nder our Constitution there can be no such thing as either a creditor or a debtor race. That concept is alien to the Constitution's focus upon the individual. In the eyes of government, we are just one race here. It is American. " -----Justice Antonin Scalia If you allow the government to take your liberty during times of crisis, it will create a crisis whenever it wishes to take your liberty.
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I. Tinker A student's right to speak (even on controversial subjects such as war) in the cafeteria, the playing field, or "on the...
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Monday August 28 : Handout on Moore v Harper (PDF has been emailed to you); Originalism vs. the "Living Constitution": Strau...
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Jack Phillips of Masterpiece Cakeshop (art by Joshua Duncan) "We may not shelter in place when the C...