Post-racialism or targeted universalism?

Denver University Law Review

Volumn 86, Issue SPEC. ISS., 2009, Pages 785-806

  Powellt, John A ^a  

^a OHIO STATE UNIVERSITY   (United States)

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EID: 68049121789     PISSN: 08839409     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (98)

1. Already, there are claims being advanced that Section 5 pre-clearance provisions of the Voting Rights Act are no longer necessaiy, since they are predicated on polarized racial voting patterns, which the election of Obama supposedly refutes. See Adam Liptak, Supreme Court Takes Voting Rights Case, N.Y. TIMES, Jan. 10, 2009, at A13, available at http://www.nytimes.com/2009/01/l0/washington/10scotus.html?-r=1&hp.
2. Much of this could be said about a proper understanding of race and racism. These terms have a long history that is also sensitive to location and socio-political conditions. But this is not how most Americans think of these terms. Most Americans would be surprised to learn that the term "racism" did not come into use in the United States until the 1930's. For a good discussion of changing meaning and practices of race, see generally GEORGE M. FREDRICKSON, RACISM: A SHORT HISTORY (2002); STEVE MARTINOT, THE RULE OF RACIALIZATION: CLASS, IDENTITY, GOVERNANCE (Temple Univ. Press 2003); DAVID R. ROEDIGER, HOW RACE SURVIVED U.S. HISTORY: FROM SETTLEMENT AND SLAVERY TO THE OBAMA PHENOMENON(Verso 2008); john a. powell, The Race Class Nexus: An Intersectional Perspective, 25 LAW & INEQ. 355 (2007).
3. MICHAEL OMI & HOWARD WINANT, RACIAL FORMATION IN THE UNITED STATES: FROM THE l96Os TO THE 1990s 66-68 (1st ed. 1986) (describing racial formation as a function of the interaction between micro- and macro-levels of social relations).
4. AUDREY SMEDLEY, RACE IN NORTH AMERICA: ORIGIN AND EVOLUTION OF A WORLDVIEW 332 (Westview Press 3d ed. 2007).
5. Alan David Freeman, Legitimizing Racial Discrimination Through Antidiscrimination Law: A Critical Review of Supreme Court Doctrine, in CRITICAL RACE THEORY: THE KEY WRITINGS THAT FORMED THE MOVEMENT 29, 29-30 (Kimberlé Crenshaw et al. eds., The New Press).
6. Compare Washington v. Davis, 426 U.S. 229, 242 (1976) (establishing the Court's discriminatory purpose doctrine, which requires the plaintiff to prove discriminatory intent), with Charles R. Lawrence HI, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 STAN. L. REV. 317, 373-78 (1987) (critiquing the Supreme Court's discriminatory purpose doctrine and proposing an alternative test that would take unconscious racism into account).
7. 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 Tnvolved in Cmty. Sch. v. Seattle Sch. Dist. No. One, 127 S. Ct. 2738, 2787-88 (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.
13. See ABIGAIL THERNSTROM & STEPHAN THERNSTROM, NO EXCUSES: CLOSING THE RACIAL GAP IN LEARNING 76-78 (Simon & Schuster 2003).
14. MICHAEL K. BROWN ET AL., WHITEWASHING RACE: THE MYTH OF A COLOR-BLIND SOCIETY 7-8 (Univ. of California Press 2003). Conservatives are likely to explain existing racial arrangements as caused by a culture of poverty of non-whites. But their use of the term is often used to justify making culture essential, and all but immutable.
15. Grutter v. Bollinger, 539 U.S. 306, 353 (2003) (Thomas, J., concurring in part and dissenting in part) ("The Constitution abhors classifications based on race, not only because those classifications can harm favored races or are based on illegitimate motives, but also because every time the government places citizens on racial registers and makes race relevant to the provision of burdens or benefits, it demeans us all."). In Parents Involved, Thomas and the plurality assert that only harms caused by intentional state action can be remedied using race, with a very limited set of exceptions. Parents Involved 127 S. Ct. at 2755-59. Justice Kennedy, while also expressing concern about racial classification, did not join them in this view. Id. at 2791 (Kennedy, J., concurring in part and concurring in the judgment).
16. President Obama specifically rejects the claim that we are in a post-racial world, citing the continued racial disparities as proof that we are not in a post-racial world: [w]hen I hear commentators interpreting my speech to mean that we have arrived at a "postracial politics" or that we already live in a color-blind society, I have to offer a word of caution. To say that we are one people is not to suggest that race no longer matters - that the fight for equality has been won, or that the problems that minorities face in this country today are largely selfinflicted⋯ as much as I insist that things have gotten better, I am mindful of this truth as well: Better isn't good enough.
17. BARACK OBAMA, AUDACITY OF HOPE 232-33 (Crown 2006). Yet, there is and will likely be stubborn persistence that we are indeed in a post-racial world evidenced, most poignantly by President Obama's success. See Debra Dickerson, Class Is the New Black, MOTHER JONES, Jan./Feb. 2009, http://www.motherjones.com/news/ feature/2009/01/class-is-the-new-black.html; Joel Kotkin, The End of Upward Mobility, NEWSWEEK, Jan. 26,2009, http://www.newsweek.com/id/ 180041.
18. GLENN C. LOURY, THE ANATOMY OF RACIAL INEQUALITY 142 (Harvard Univ. Press 2002).
19. This was the chant that Obama supporters made after he won the South Carolina primary, and it was not challenged by the campaign. Ginger Thompson, Seeking Unity, Obama Feels Pull of Racial Divide, N.Y. TIMES, Feb. 12, 2008, at A1, available at http://www.nytimes.com/2008/02/12/us/ politics/l2obama.html?emc=etal.
20. Adolph Reed asserts that we should stop using race and deal with the real issue of class. See Adolph L. Reed, Jr., The Real Divide, PROGRESSIVE, Nov. 2005, at 27, available at http://progressive. org/mag-reed1105. Some post-racialists also use the changing demographic to support the claim that we are beyond race. See RICHARD J. PAYNE, GETTING BEYOND RACE 78 (1998); GWEN IFILL, THE BREAKTHROUGH: POLITICS AND RACE IN THE AGE OF OBAMA (2009).
21. As racial attitudes improved, there has been a move from expressed racial hostility to racial resentment. DONALD R. KINDER & LYNN M. SANDERS, DIVIDED BY COLOR: RACIAL POLITICS AND DEMOCRATIC IDEALS 92-93 (Univ. of Chicago Press 1996). There was also a period where many young Americans rejected materialism. Many assumed that this would lead to a country where materialism would decline as the young became the leaders of the country. But the counter-culture hippie movement did not develop into a less material America. Likewise, we should not assume that the hope we now have will naturally lead to racial nirvana.
22. See Douglas Laycock, Formal, Substantive, and Disaggregated Neutrality Toward Religion, 39 DEPAUL L. REV 993 (1990), and Liza Weiman Hanks, Note Justice Souter: Defining "Substantive Neutrality" in an Age of Religious Politics, 48 STAN L. REV. 903 (1996), for a similar discussion of formal and substantive neutrality in the First Amendment Free Exercise Clause. Justice Souter is critical of approaching neutrality from only a formal perspective. Id. at 922.
23. See IRA KATZNELSON, WHEN AFFIRMATIVE ACTION WAS WHITE 129-33 (2005).
24. 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 jurispmdential 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).
25. 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).
26. See City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493-94 (1989); Metro Broadcasting, Inc. v. FCC, 497 U.S. 547 (1990) (O'Connor, J., dissenting); Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995).
27. See, e.g. WILLIAM JULIUS WILSON, THE DECLINING SIGNIFICANCE OF RACE (2d ed. 1980). Wilson has been on of the most influential and persistent advocates for a post-racial universal approach. In his most recent book, WILLIAM JULIUS WILSON, MORE THAN JUST RACE (2009), Wilson explicitly rejected his earlier position: "The question is not whether the policy should be race-neutral or universal; the question is whether the policy is framed to facilitate a frank discussion of the problems that ought to be addressed and to generate broad political support to alleviate them. So now my position has changed: in framing public policy we should not shy away from an explicit discussion of the specific issues of race ⋯." Id. at 141. Wilson argues for frame that recognizes both the universal and the particular aspects of race. He also asserts that the discussion of poverty and race must put a structural approach not at the exclusive focus but certainly the primary focus. The shift in Wilson's position is very significant and should give serious pause to liberals that shy away from race. It is still important to figure out how to talk about race and link it to a broader discussion.
28. While President Obama expresses a preference for universal programs to address the issue of racialized disparities and some hesitance for race specific programs, he also acknowledges the need for targeted programs. In particular, he asserts that a targeted focus will be needed for both "under class" blacks and undocumented immigrants. See OBAMA, AUDACITY OF HOPE, supra note 16. While the approach I am advocating here is in much agreement, there is a difference in scope. Programs should be universal in approach, but without being targeted the goal of fairness and inclusion will falter-not just for inner city blacks and the undocumented, but for many other racialized and non-racialized groups, such as rural groups, disabled groups, the elderly, etc. This is in part an empirical claim. Where untargeted universal approaches fall short, we should be willing to adjust. There is also a way to communicate this need that should be able to avoid most of the racial divisiveness.
29. ROBERT C. LIEBERMAN, SHIFTING THE COLOR LINE: RACE AND THE AMERICAN WELFARE STATE 227-28 (Harvard Univ. Press 2001). Lieberman argues that there are a number of ways a program that purports to be universal can in fact be particular. He does not just focus on the targeting, but also the administration and funding of a program. He sees social security as our best example of a truly universal program. But others have challenged even this claim. See, e.g., Alice O'Connor, The "New Institutionalism" and the Racial Divide, 29 REV. AM. HIST. 111, 117-18 (2001). If we look at not just social security itself but how it interacts with other systems, it is clearly not universal. Even President Bush cynically noted that social security is not fair to blacks because they die earlier than whites. Michael Kranish, Bush Argues His Social Security Plan Aids Blacks, BOSTON GLOBE, Jan. 30,2005, at A1.
30. Targeted policies and programs (poorhouses in the 19th Century, mother's pensions in 1910, the War on Poverty in the 1960s) are likely to be viewed through the prism of zero-sum politics. At a time of perceived scarcity and contracting government budgets, targeted policies may be viewed as favoring some constituent group rather than the public good. If the target group is historically disfavored or considered "undeserving," targeted policies risk being labeled "preferences" for "special interests." In order to avoid alienating voters, policies are often packaged for broad appeal. See THEDA SKOCPOL, SOCIAL POLICY IN THE UNITED STATES: FUTURE POSSIBILITIES IN HISTORICAL PERSPECTIVE 250-51 (Princeton Univ. Press 1995).
31. See LIEBERMAN, supra note 28, at 34.
32. See IRA KATZNELSON, supra note 22, at43.
33. Many liberals are concerned that any targeted or particular program will not work because it will not maintain the necessary support. See Theda Skocpol, Targeting within Universalism: Politically Viable Policies to Combat Poverty in the United States, in THE URBAN UNDERCLASS 411 (Christopher Jencks & Paul E. Peterson eds., 1990); WILLIAM JULIUS WILSON, THE TRULY DISADVANTAGED (1990). They may be right to be skeptical of a targeted program, but this does not speak to the problems of false universalisms. A number of scholars who are skeptical of targeted programs have started to embrace a form of targeted universalism instead.
34. There is much to suggest that racial resentment is not so neat. BROWN ET AL., supra note 14, at 55-56 (arguing that white opposition to affirmative action is based mostly on the fear of losing white privileges); see also Lawrence, supra note 6, at 323.
35. GEORGE LIPSITZ, THE POSSESSIVE INVESTMENT IN WHITENESS: HOW WHITE PEOPLE PROFIT FROM IDENTITY POLITICS (Temple Univ. Press 1998).
36. Id. at 229-31; see also IAN HANLEY LOPEZ, WHITE BY LAW: THE LEGAL CONSTRUCTION OF RACE 131 (N.Y. Univ. Press, 10th anniversary ed. 2006).
37. DAVID R. ROEDIGER, HOW RACE SURVIVED U.S. HISTORY (2008).
38. Id.
39. DONA COOPER HAMILTON & CHARLES V. HAMILTON, THE DUAL AGENDA (1997).
40. Id. at 236. The Hamiltons suggests that targeted universal programs were indeed pushed by civil rights groups, but that racial resentment was so high that even these programs could not garner support. Id. at 241. There is some work today dealing with symbolic racism that suggest white are more willing to support some targeted universal programs. This might represent a meaningful shift in attitudes.
41. KATZNELSON, supra note 22, at x.
42. Kevin Douglas Kuswa, Suburbification, Segregation, and the Consolidation of the Highway Machine, 3 J.L. SOC'Y 31,47 (2002).
43. KATZNELSON, supra note 22, at 115.
44. Id. at 116.
45. Id.
46. Id.
47. Id. at 114-15; see also Theda Skocpol, The G.I. Bill and U.S. Social Policy, Past and Future, SOC. PHIL. & POL'Y 95, 114 (June 2007).
48. KATZNELSON, supra note 22, at 127.
49. 442 U.S. 256 (1979).
50. Id. at 284.
51. Id. at 279-81.
52. KATZNELSON, supra note 22, at 112.
53. Id. at 107.
54. AMARTYA SEN, DEVELOPMENT AS FREEDOM 136 (Alfred A. Knopf, Inc. 1999).
55. 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).
56. 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).
57. 1 GUNNAR MYRDAL, AN AMERICAN DILEMMA: THE NEGRO PROBLEM AND MODERN DEMOCRACY 70 (Harper & Brothers Publishers 1944).
58. Id. at 75-76.
59. 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 are attentive to how opportunity is distributed and for whom. While we cannot determine the outcome of such a discussion, it would be beneficial to have such a discussion. It would also be useful for the policy maker to deliberately consider our situatedness and its relevance when adopting policies.
60. S. Burlington County N.A.A.C.P. v. Mount Laurel Twp., 336 A.2d 713,717 (N.J. 1975).
61. Naomi Bailin Wish & Stephen Eisdorfer, The Impact of Mount Laurel Initiatives: An Analysis of the Characteristics of Applicants and Occupants, 27 SETON HALL L. REV. 1268, 1302-05 (1997).
62. IRIS MARION YOUNG, INCLUSION AND DEMOCRACY 121-22 (Oxford Univ. Press 2000).
63. Jeanne Brooks-Gunn et al., Do Neighborhoods Influence Child and Adolescent Development?, 99:2 AM. J. SOC. 353 (1993). Tama Leventhal & Jeanne Brooks-Gunn, Moving to Opportunity: An Experimental Study of the Neighborhood Effects on Mental Health, 93:9 AM. J. PUB. HEALTH 1576(2003).
64. Grutter v. Bollinger, 539 U.S. 306, 347-49 (2003) (Scalia, J., concurring in part and dissenting in part).
65. See id.
66. 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.
67. Id. at 2765.
68. 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)).
69. Id.
70. Id. at 2791-92(2007) (Kennedy, J., concurring).
71. 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 voting rights case, INT'L HERALD TRIB., Jan. 9, 2009, available at http://www.iht.com/articles/2009/01/09/ america/l0scotus.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.
72. Nw. Austin Mun. Util. Dist. No. One, v. Mukasey, No. 06-1384 (D.D.C. May 30, 2008) (opinion withdrawn from bound volume because it has been amended).
73. Adam Liptak, Supreme Court Takes Voting Rights Case, N.Y. TIMES, January 10, 2009, at A13.
74. U.S. DEP'T OF HOUS. & URBAN DEV., UNEQUAL BURDEN: INCOME AND RACIAL DISPARITIES IN SUBPRIME LENDING IN AMERICA (2000).
75. See powell, supra note 2, at 355; see generally KATZNELSON, supra note 22.
76. CHRISTY ROGERS, A KIRWAN INSTITUTE REPORT: SUBPRIME LOANS, FORECLOSURE, AND THE CREDIT CRISIS: WHAT HAPPEHED AND WHY?-A PRIMER, (Kirwan Inst. for the study of Race and Ethnicity, Ohio State Univ., Dec. 2008), available at http://tinyurl.com/bn5ln6.
77. See also Board of Governors of the Federal Reserve System, Staff Analysis of the Relationship between the CRA and the Subprime Crisis, at 8 (Nov. 21, 2008) (table demonstrating that that only 6% of banking institutions within the CRA assessment area gave high-priced loans to lower-income individuals).
78. Thomas L. Friedman, Finishing Our Work, N.Y. TIMES, Nov. 5, 2008, at A35, available at: http://www.nytimes.com/2008/11/05/opinion/ 05friedman.html?ref=opinion.
79. See Adam Nossiter, For South, A Waning Hold on National Politics, N.Y. TIMES, NOV. 11, 2008, at Al, available at: http://www.nytimes.com/2008/11/11/us/politics/11south.html.
80. DREW WESTEN, THE POLITICAL BRAIN 221 (2007).
81. OBAMA, AUDACITY OF HOPE, supra note 16, at 138.
82. See Andrew Grant-Thomas & john a. powell, Structural Racism and Colorlines in the United States, 119 Twenty-First Century Color Lines: Multiracial Change in Contemporary America (Eds. Andrew Grant-Thomas & Gary Orfield, 2009); john a. powell, Structural Racism: Building Upon the Insights of John Calmore, 86 N. C. L. Rev. 791 (2008).
83. ASPEN INST. ROUNDTABLE ON CMTY. CHANGE, STRUCTURAL RACISM AND COMMUNITY BUILDING 11 (2004); Project Implicit, http://www.projectimplicit.net/ generalinfo.php (last visited Jan. 9,2009).
84. Project Implicit, supra note 81.
85. Because of these implicit biases, identical actions or opinions of two people of different social groups often are interpreted differently, depending upon the group to which each belongs. See also Jerry Kang, Trojan Horses of Race, 118 HARV. L. REV. 1489 (2005).
86. Project Implicit, supra note 81.
87. OBAMA, AUDACITY OF HOPE, supra note 16, at 139.
88. Parents Involved, 127 S. Ct. at 279 1-92 (Kennedy, J., concurring). In a complex real world setting, policies have unintended consequences and resistance that thwart policy intentions. It is critical that targeted universal policies set clear goals and use mechanisms to closely monitor and correct for negative feedback loops and other resistance to achieve those goals
89. LANI GUINIER & GERALD TORRES, THE MINER'S CANARY (2002).
90. OBAMA, AUDACITY OF HOPE, supra note 16, at 146.
91. Most of the infrastructure funds may go to routine fixes. See Alec MacGillis & Michael Shear, Stimulus Package to First Pay for Routine Repairs, WASH. POST, Dec. 14, 2008, at AO1, available at http://www.washingtonpost.com/wp-dyn/content/article/2008/12/13/ AR2008121301819-pf.html.
92. OBAMA, AUDACITY OF HOPE, supra note 16, at 247.
93. WINTHROP JORDAN, THE WHITE MAN'S BURDEN (1974).
94. Id. at 170.
95. See ORLANDO PATTERSON, FREEDOM: FREEDOM IN THE MAKING OF WESTERN CULTURE 10 (1991).
96. See Ian Haney Lopez, Colorblind White Dominance 18 (2006) (unpublished article on file with author).
97. GEORGE YANCEY, WHO IS WHITE? LATINOS, ASIANS, AND THE NEW BLACK/NON- BLACK DIVIDE 149-164 (2003).
98. This approach is not uniquely race sensitive. All groups and people at time will be situated in ways that are important to consider if they are to be full members of our society. See generally john a. powell, The Needs of Members in a Legitimate Democratic State, 44 SANTA CLARA L. REV. 969 (2004).