File: powell final for Darby 790 Created on: 3/15/2009 12:55:00 PM Last Printed: 4/3/2009 10:11:00 AM DENVER UNIVERSITY LAW REVIEW [Vol. 86.Obama the intent of the design, but not the effects of these policies. If an otherwise neutral program is overlaid on practices that are themselves racially unfair, it is likely to not only leave such arrangements undisturbed, but perpetuate and exacerbate them. Consider the fact that black veterans returning from World War II received federal monies to attend colleges that were highly segregated and uneven in quality.22 Awarding federal college grants to all soldiers on a racially neutral basis would only exacerbate inequality in educational outcomes as whites receive a greater advantage for the same tax dollar. Fairness is not advanced by treating those who are situated differently as if they were the same.23 For example, it would make little sense to provide the measured protections against hurricanes for Midwestern communities as coastal communities or to provide the same degree of health resistance investment for diseases such as malaria where an outbreak is much less likely. But even the goal of race neutrality in the effect is too narrow to redress racial disadvantage. Even if the institutions where such resources will be used are themselves neutral, it may not be enough to aim for neutrality in effect if the beneficiaries of such efforts are situated differently. Equality of effect can produce very different outcomes depending on the needs of the beneficiaries. With those considerations in mind, what are we to do with our existing racialized conditions and arrangements, from schools, to housing, to the criminal justice system? Will these issues be automatically addressed by the passing of time? Many conservatives say that the proper response—the only possible response—is to do nothing.24 They argue that colorblindness prohibits us from doing anything that would be either 22. See IRA KATZNELSON, WHEN AFFIRMATIVE ACTION WAS WHITE 129–33 (2005). 23. Aristotle, who gave us much of our understanding of equality, asserted that it is just to treat those who are situated similarly the same, but it would be unjust to treat those who are situated differently the same. See Maureen B. Cavanaugh, Towards a New Equal Protection: Two Kinds of Equality, 12 LAW & INEQ. 381, 384 (1994). Once stated, this seems obvious, yet we have difficulty even acknowledging that some are situated differently than others. Even when we are more attuned to the fact that differences matter, we are inclined to focus on a single factor, which causes us to misunderstand our situatededness. The debate over neutrality has a particular jurisprudential history. Herbert Wechsler argued that Brown was not rightly decided because it was not based on the neutrality principle. See Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 HARV. L. REV. 1 (1959). According to Wechsler, even if segregation harmed blacks, legal neutrality required also considering the harm of integration and association for whites. This argument was rejected by other legal scholars such as Charles Black, who asserted that the 14th amendment and other Civil War Amendments were not meant to be neutral but embodied certain constitutional values. CHARLES L. BLACK JR., A NEW BIRTH OF FREEDOM: HUMAN RIGHTS, NAMED AND UNNAMED 24 (1997). The Supreme Court has been moving toward the neutrality principle, effectively overturning Brown and changing the meaning of the Civil War Amendments. See john powell & Stephen Menendian, Little Rock and the Legacy of Dred Scott, 52 ST. LOUIS U. L.J. 1153 (2008). 24. Compare RICHARD J. HERRNSTEIN & CHARLES MURRAY, THE BELL CURVE: INTELLIGENCE AND CLASS STRUCTURE IN AMERICAN LIFE 117-18 (The Free Press 1994) (arguing that class is determined by intelligence, rather than racial or social advantages or disadvantages), with BROWN ET AL., supra note 14 (arguing that racism persists and that organized racial advantage exists across many institutions in American society).