was that your stomach or mine?

So Hopwood v. Texas, 78 F. 3d 932 (5th Cir. 1996) has indeed been overruled, since diversity is now a compelling interest that can justify the narrowly tailored use of race in selecting applicants for admission to public universities. Or at least, it has been overruled for the next 25 years...

UT seems to be rejoicing. Good news for Austin. Bad news for Texas!

I've had a mixed reaction to the ruling. I was certainly dismayed to see that the Court still follows the antiquated notion that a different color of skin is prima facie evidence of different ideas, a different culture, different life experiences, etc, that will presumably contribute to a rich learning environment. This is probably the least impressive notion out there in the affirmative action debate. Today's kids have no culture, no matter what their skin color. All they have is their MTV. I am always impressed by how homogenous people really are in their philosophies. From black to white to east to west, their value systems remain remarkably constant. To suggest that a hispanic person will contribute something startlingly new due to their skin tone simply flies in the face of the reality of the everyday world. It's almost as if people don't want to believe that a minority in America today is just like all the white people as far as their culture is concerned; that is, they have none to speak of. Culture is not a color! It is a way of valuing the world around you.

Furthermore, I fear that the opinion of the Court is way too flexible and nebulous. They have essentially reaffirmed their anti-quota stance in Bakke, but I've come to believe that such a stance is lacking in substance. Sure, quotas are no longer allowed de jure, but de facto quotas are inevitable. The Court has stated that there is a compelling interest in having a "critical mass" of diverse peoples in law school, but what does that mean? I suppose it means that there must be some basic minimum number of minorities--just enough so that the minorities don't feel like spokespeople for their race. But this just begs the question: how much is the basic minimum? 1%? 5%? 10%? A reversion back to language steeped in the fundamental aspects of quotas--without actually saying the word "quota"--is bound to happen, and indeed is already happening, and has been happening for 25 years since Bakke. This is why the Court's ruling is so perplexing. It's as if they have avoided the issue altogether.

Because of the lack of a bright-line rule, Scalia is correct to point out that there will be a lot of litigation stemming from the Grutter and Gratz cases. The debate is far from over.

Well, at least until the year 2028. ha!