Post-Hopwood plans

[Mark Tushnet]

Frank Cross writes:  "I can't imagine the constitutional attack on the 10% plan."  Here's the structure of the argument.  Facially neutral laws, etc., with a disparate racial impact are constitutional (if they are supported by a rational basis), *unless* they are adopted with the purpose of achieving (or "in order to" achieve) the disparate racial impact, in which case they must satisfy strict scrutiny.  But that is precisely a description of the post-Hopwood plan:  achieving a racially disparate impact (reproducing as best the state can the outcomes under affirmative action) is the point of the plan.

Mark Tushnet
Georgetown University Law Center
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tushnet at law.georgetown.edu