BURDEN OF PROOF
While there is nothing unconstitutional about such a practice, it nonethe- less suffers from a serious disadvantage.* It is the disadvantage of deliberate obfuscation. The “percentage plans” are just as race conscious as the point scheme (and fairly so), but they get their racially diverse results without saying directly what they are doing or why they are doing it. In contrast, Michigan states its purpose directly and, if this were a doubtful case for me, I would be tempted to give Michigan an extra point of its own for its frank- ness. Equal protection cannot become an exercise in which the winners are the ones who hide the ball.
*Of course it might be pointless in the State of Michigan, where minorities are a much smaller fraction of the population than in California, Florida, or Texas.
A remarkable feature of the line of cases from Plessy through Brown to Bakke, Grutter, and Gratz is the extent to which interpretations of the equal protec- tion clause turn on the matter of burden of proof. Under the rational-relation test that governed Plessy, the state bears a light burden when it is asked to show that its actions do not conflict with the equal protection clause. In con- trast, the strict-scrutiny test that governed Brown, that Powell applied in Bakke, and that the Court applies in Grutter and Gratz places a very heavy burden on the state to justify any use of a suspect classification or any inter- ference with fundamental rights.
It may seem peculiar that an important legal decision can turn on such a technical and procedural matter as burden of proof. But the question of bur- den of proof often plays a decisive role in a legal decision, so it is worth knowing something about it.
