File: powell final for Darby 2009] Created on: 3/15/2009 12:55:00 PM Last Printed: 4/3/2009 10:11:00 AM POST-RACIALISM OR TARGETED UNIVERSALISM 787 bigotry of bad state actors, whose policies can be simply purged or reversed in an election cycle or by excising the offending de jure rules. According to this individualistic point frame of analysis, if one does not engage in conscious acts of racism, or better still does not see race as a reality, then there can be no racism or racialization.7 At the same time, we have more consciously embraced a public position of racial equalitarianism. Virtually all sectors of society eschew racism.8 To call someone racist does not just impugn the legality of his or her actions, but also the morality of the person. To call someone racist today is seen as incendiary and a form of character assassination. The good American not only refuses to engage in conscious racially motivated behavior, he also refuses to see race or call it out. In other words, he is race-blind.9 This is a principle purportedly embraced in the dream of Dr. Martin Luther King Jr.10 The good American can claim that, to the extent that others share his blindness, race does not matter. The conservative mode of race blindness has been at times extremely callous. Consider the plurality’s opinion in Parents Involved.11 From this perspective, racial hierarchy is legally irrelevant to the Constitutional principle of Equal Protection unless state-sponsored, conscious discrimination is directly implicated and is a proximate cause.12 The conservative uses colorblindness not just as a bar to engage the issue of race, but also as a justification to preclude any intervention. It is a narra7. See Washington v. Davis, 426 U.S. at 245-46; McCleskey v. Kemp, 481 U.S. 279, 312-13 (1987). 8. See generally GUNNAR MYRDAL, AN AMERICAN DILEMMA: THE NEGRO PROBLEM AND MODERN DEMOCRACY (50th Anniversary ed. 1996) (discussing racial subordination and equalitarianism). 9. Cf. Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. One, 127 S. Ct. 2738, 278788 (2007) (Thomas, J., concurring). 10. Dr. Martin Luther King, Jr., I Have a Dream (1963), in A TESTAMENT OF HOPE: THE ESSENTIAL WRITINGS AND SPEECHES OF MARTIN LUTHER KING, JR. 217, 219 (James M. Washington ed., 1986). The oft-cited line is: “I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.” Id. This line is used to suggest that, were King alive today, he would oppose policies such as affirmative action or race-conscious voluntary integration efforts. 11. Id. at 2743-44. 12. Some conservatives assert that “moving beyond race” is not just an aspiration or a description of where we ought to be, but also the best means to get us there. See id. at 2742-43 (Roberts, C. J.). See also Chief Justice Roberts’s opinion in Parents Involved, at 2768 (“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”). Most legal jurists and conservatives trace their argument to Justice Harlan’s dissent in Plessy v. Ferguson. 163 U.S. 537, 559 (1896) (Harlan, J., dissenting) (“Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.”). While arguing for a colorblind constitution, Justice Harlan was not claiming that it would create an end to racial hierarchy. See id. On the contrary, he believed that adherence to colorblindness would support the continued dominance of the white race. Id. (“The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth, and in power. So, I doubt not, it will continue to be for all time, if it remains true to its great heritage, and holds fast to the principles of constitutional liberty.”). Though Chief Justice Roberts asserts that colorblindness is the appropriate mechanism for addressing our racial hierarchy, this assertion is not consistent with empirical evidence. Not only has a race-blind stance failed to address racial conditions, it also has failed to avoided the divisiveness that many conservatives are attempting to mitigate in the United States.