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 799 comes difficult to justify race-sensitive or race-specific polices or laws. The colorblind proponents who oppose considering race at all are on firmer ground. If race is irrelevant, what is the justification legally or otherwise for using it? The conservative position, while concerned about the socially explosive consequence of using race, is not concerned about racial conditions. But the very assertion that the use of race is explosive belies their claim that race does not matter.63 The conservative position would not only reject the use of race, it would also be very skeptical of race-sensitive policies.64 Consider the issue of voluntary integration measures implemented by democratically elected school boards struggling to overcome legacies of residential separation.65 The plurality makes the colorblind case in Parents Involved, arguing that no matter how well intentioned, the Constitution absolutely forbids the use of racial classifications.66 Furthermore, according to the plurality, this is the clear meaning of Brown.67 According to them, Brown was not about racial conditions or subordination, but classification.68 Fortunately, this position is not the law at this point because Justice Kennedy, the tie-breaking vote, rejected that claim that the Constitution is colorblind.69 But the post-racial proponents have not stated a justification of when and why race should be considered in this post-racial world. Consider also how post-racial advocates might argue for maintaining Section 5 of the Voting Rights Act of 1965 (VRA), which the Supreme Court has agreed to review. Overall the VRA prohibits voting practices or procedures that discriminate on the basis of race, color, or membership in one of the language minority groups. Section 5 requires that certain state and local governments, mostly in the South, obtain permission, or “preclearance,” from the Justice Department or a federal court before making changes that affect voting.70 A Texas municipal 63. Grutter v. Bollinger, 539 U.S. 306, 347-49 (2003) (Scalia, J., concurring in part and dissenting in part). 64. See id. 65. Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 127 S. Ct. 2738 (2007). Of course it is clear that there are some situations where race and racialization matters more than other situations. But our simplistic notion makes that difficult to see. We need help not only in seeing that race matters, but also when and how. Race blindness is incapable of doing that work. 66. Id. at 2765. 67. Id. at 2767-68. “Racial classifications are suspect, and that means that simple legislative assurances of good intention cannot suffice.” Id. at 2764 (quoting City of Richmond v. J.A. Croson Co., 488 U.S. 469, 500 (1989)). 68. Id. 69. Id. at 2791-92 (2007) (Kennedy, J., concurring). 70. National Voting Rights Act of 1965, 42 U.S.C.A. § 1973-1973aa-6 (2009). “The requirement applies to nine states—Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, and Texas and Virginia—and scores of counties and townships in other states that Congress found had a history of discrimination at the polls.” Adam Liptak, U.S. Supreme Court takes HERALD TRIB., Jan. 9, 2009, available at voting rights case, INT’L http://www.iht.com/articles/2009/01/09/america/10scotus.php. The same reasoning that race does not matter would greatly change cases decided under the 13th Amendment, such as Jones v. Alfred H. Mayer, Co., 392 U.S. 409 (1968) and Runyan v. McCrary, 472 U.S. 160 (1976) which extend to private action claims denied by the Court under the 14th Amendment.