When asked what she thought about the Michigan Civil Rights Initiative after a speech at Miami University (Ohio), former Justice O’Connor replied: “It is entirely within the right and privilege of voters….”
The legal import of O’Connor’s disappointing opinion in Grutter is that, in certain narrowly constrained circumstances, universities may practice racial preference, certainly not that they must, but it is abundantly clear from her opinion that she thinks doing so is a good idea.
Fortunately the citizens of Michigan disagreed with her and chose to reject the license to discriminate that she granted them.
John, that’s fabulous news that someone cornered on the issue. Her statement gives MCRI even more political cover than it already has against the frivolous lawsuits – and it might even affect the Louiseville and Seattle cases.
On the other hand, it’s a stinging acceptance of state’s rights to discriminate, just as her ruling was.
We may have reached a turning point in the long-term evolution of this issue.
It looked dire after Grutter. To go back to the football game analogy, Grutter was like the first possession in a college overtime contest. Michigan scored the touchdown and took a seven point lead. Had MCRI failed, the game would have ended. MCRI was the precise counter-point, a resounding quick-answer touchdown that has tied the game and maybe even a second touchdown in the second overtime turning the tide. The next plays are already playing out in the Supreme Court, although I don’t suspect they will be winning plays by themselves.