If you’re interested in the debate over racial preferences, this column on NRO by U.S. Civil Rights Commission member Peter Kirsanow is a must-read. Kirsanow does what I had hoped to do with the Michigan decisions if I’d had time, and then some: walk through all the practical problems that will face university administrators in defending additional litigation brought under the Gratz/Gruttinger standards. One of the key unsettled issues Kirsanow doesn’t address — but that will become very important in these cases — is the pleading standards required to sustain a claim before discovery becomes available.
Of course, whether or not you agree with Justice O’Connor’s resolution of the issue, the fact that her decision encourages protracted and highly fact-intensive (read: expensive) litigation can’t really be seen as a good thing.