Post-Hopwood plans

[gayle binion]

Professor Tushnet has clearly captured the argument of the opponents of
diversity...but "racially disparate" impact as compared to what?  This
approach assumes that status quo is "normalcy" despite the racially
"disparate impact" of its criteria for selection which may
unduly/unnecessarily depress minority eligibility or promote segregation.
Their approach to "equal protection" treats the impulse to integrate and
the impulse to segregate as equally prohibited.  Is this the larger goal?

gayle binion

At 10:23 AM 6/25/00 -0400, you wrote:
>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
>600 New Jersey Ave. NW
>Washington, DC  20001
>     202-662-9106
>     202-662-9497 (fax)
>tushnet at law.georgetown.edu
>
>
Gayle Binion, Ph.D.
Professor of Political Science
and Law & Society
UC Santa Barbara
Santa Barbara, Cal. 93106
(805) 893-2114 (office)
(805) 969-0380 (residence and fax)