File: powell final for Darby 796 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 benefit the marginal group. This would allow race-blind universal policies to do race-sensitive work. This approach is not only favored by policy makers but also by the Supreme Court, which has limited the remedial efforts to those where the harms are most visible.54 While the idea is intuitively appealing, in fact it is often wrong. A number of efforts to use income as a soft proxy for race simply do not deliver.55 On closer examination the reason is clear. As Gunnar Myrdal noted in 1944, poor Blacks and poor whites are not similarly situated.56 Blacks suffer from cumulative causation or mutual reinforcing restraint.57 Let us assume for simplicity that there are ten constraints reducing opportunity for group A, and two of those constraints are reducing opportunity for group B. If fifty percent of group A is constrained by 1 and 2 and only ten percent of group B is constrained by 1 and 2, we might assume that since A is disproportionally constrained by 1 and 2, group A would disproportionally benefit from the removal of 1 and 2. Suppose that the presence of any of the constraints is sufficient to deny opportunity. A universal policy that removed constraints 1 and 2 would vastly increase the opportunity movement of group B. It would not, however, change the conditions of group A because there are still eight remaining constraints reducing opportunity for that group. Yet the failure of group A to translate the policy into opportunity might be seen as a failure on the part of group A, and not a failure of policy. What this false universalism fails to address is that groups of people are differently situated in relation to institutional and policy dynamics. If one only looks at one or two constraints, one is likely to inaccurately assume that groups who are in very different circumstances are in fact similar. The flaw in this false universalism is not overcome by anti-discrimination policies. One could argue that the disfavored group is not being discriminated against in a traditional sense. Instead, their situatedness is the cause of the disadvantage.58 It is important and ap54. See Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. One, 127 S. Ct. 2738, 2792 (2007) (Kennedy, J., concurring); City of Richmond v. J.A. Croson Co., 488 U.S. 469, 509–10 (1989). 55. Sean F. Reardon, John T. Yun & Michael Kurlaender, Implications of Income-Based School Assignment Policies for Racial School Segregation, 28 EDUC. EVAL. & POL’Y ANALYSIS 49, 50 (stating that SES will not adequately racially integrate schools even where non-whites are over represented). 56. 1 GUNNAR MYRDAL, AN AMERICAN DILEMMA: THE NEGRO PROBLEM AND MODERN DEMOCRACY 70 (Harper & Brothers Publishers 1944). 57. Id. at 75–76. 58. See Rebecca M. Blank, Tracing the Economic Impact of Cumulative Discrimination, Am. Econ. REV., May 2005, at 99, 100 (explaining that a labor economist’s analysis of labor market discrimination controlling for background characteristics and educational preparation of workers ignores prior discrimination in education, housing, and health markets, and the way in which those earlier factors contribute to the more immediate question. Racialized outcomes are the product of cumulative effects of discrimination “over time and across domains.”). One may object to considering our situatedness since we are all situated differently. Which conditions should count or be considered for policy concerns? There are a couple of responses to this. One is that we are discussing group and not just individual differences. But more importantly, it is critical in a democracy that we