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52 U. Louisville L. Rev. 105 (2013)
Critiquing Neutrality: Critical Perspectives on Schools, the First Amendment, and Affirmative Action in a "Post-Racial" World
Cedric Merlin Powell*
Abstract

The doctrinal linchpin of the Roberts Court’s post-racial constitutionalism is neutrality. This commentary advances a critique of neutrality in three jurisprudential contexts: school desegregation-integration cases, the First Amendment and the marketplace of ideas, and affirmative action by theorizing that neutrality promotes inequality. This critique deconstructs neutrality by scrutinizing the distinct underpinnings of race in purportedly neutral societal discourse and, by extension, to decisions of the Court.

* Professor of Law, University of Louisville Louis D. Brandeis School of Law. This commentary is based on the inaugural Faculty Showcase Lecture sponsored by the Student Bar Association and University of Louisville Law Review on November 7, 2012. Special thanks to Jacob Giesecke (SBA President, 2012–2013, J.D., 2013) and Edward M. O’Brien (Editor-in-Chief, Volume 51, University of Louisville Law Review, J.D., 2013), for inviting me to be the first speaker in the series and for recognizing the value of faculty scholarship.