Filliping for and against Bakke
Zirkel, Perry A., Journal of Law and Education
In the April 2002 issue of the JOURNAL,1 Einat Philip, then a third-year law student at Syracuse University, asserted that the time is ripe for the Supreme Court to reconsider Justice Powell's "diversity as a compelling interest" tie-breaking standard in Regents of the University of California v. Bakke.' After analyzing the intervening and divided lower court case law, Philip cautiously predicted that the Rehnquist Court will reject Justice Powell's view, thereby "making clear that achieving student diversity will not suffice to withstand strict scrutiny review."3 She based her prediction on Justice Powell's narrow holding, the Court's denial of certiorari in the much publicized reverse discrimination case won by University of Texas law student applicant Cheryl Hopwood,4 the perceived positions of current key members of the Court, and the prevailing view in the academic and popular press.' Consequently, in terms of legal requirements as compared to voluntary efforts, Philip concluded: "[Ilt seems clear that the days of affirmative action are numbered. How large that number is the unknown."
In the attached Counterpoint, Philip T. K. Daniel, a professor at The Ohio State University, on the one hand praises Philip for her "avid attempt at being even handed," but with the other criticizes her for adding nothing but repetition to the well-worn arguments in Hopwood and its supporters.6 To the extent that Philip largely overlooked the previous point-counterpoint in the JOURNAL on this issue, Daniel may be correct.' But, in fairness, he points out that some of the pertinent case law, including the Sixth Circuit's reversal in Grutter v. Bollinger,8 appeared after Philip's article. In any event, after a rather thorough, albeit impassioned analysis of the precedents, Daniel's prediction is that "the United State Supreme Court is more likely to uphold its decision in Bakke than to overturn it."9
Who will be right? The Supreme Court is still considering whether to grant certiorari in Grutter.10 If the Court does, we will presumably soon see which prediction is correct, although the resulting ruling may not be "right. …