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Diversity and Candor: How Should We Talk About Our Differences
Peter H. Schuck, Simeon E. Baldwin Professor of Law at Yale University, delivered these remarks at an "Ethics at Noon" presentation, Oct. 21, 2004. Schuck is the author of Diversity in America: Keeping Government at a Safe Distance (Harvard University Press, 2003).
The book Diversity in America is an effort to understand what we mean by diversity, what diversity has meant in our history, and how diversity has been advantageous to the United States. Law is not the only tool for managing diversity, nor do I think it is the most important one, but it is the one that has created the most recent disputes over diversity.
I will tell you a little bit about the structure of the book so that you can get a sense of my basic argument. I will try to use the book to situate the discussion that we are having today. I begin with an introduction explaining that the United States is the most diverse country in the world (with the possible exception of India), certainly the most diverse advanced industrial country of the world, and that his is true regardless of how one defines diversity.
Diversity can be defined in a lot ways. The second chapter analyzes the concept of diversity in order to show the different ways of thinking about it. I develop a number of useful distinctions, for example: the difference between group diversity and individual diversity, the difference between official and unofficial diversity, and many other such binary categories. Analyzing these different ways of chopping up the concept helps to clarify what we might mean when we discuss diversity as we do, so very casually. Our public discourse about diversity is very shallow and superficial. We haven't thought hard about what we mean by it, and we are the bearers of a great tradition of demographic and ethnic diversity of which most of us are very proud and whose character and implication we often don't want to question.
The U.S. Embrace of Diversity
The third chapter examines the history of diversity in the United States. The United States has always been an extraordinarily diverse society, but what I think is newor more accurately 40 years old, coming out of the civil rights movement and the Immigration Act of 1965and what is unique in the world (with the possible exception of Canada and a few other countries) is the affirmative ideal of diversity: the notion that diversity is a good thing in and of itself. In the past, the focus was on how to manage our diversity, how to reduce conflict, even, in many cases, how to reduce the diversity. Many Nativist, anti-Catholic, and other exclusionary ideologies competed for dominance in the United States, and they succeeded in some respects up until the 1960s. My former colleague Rogers Smith details the history of citizenship in his wonderful book, Civic Ideals, where he argues that through 80 percent or so of American history, most people who are now citizens would have been excluded from American citizenship for a variety of reasons. Our relatively universal conception of citizenship, Smith shows, is a relatively new thing. Our affirmative embrace of diversity as an ideal, as a vision of the good society, is likewise new. It was most importantly launched by the the Immigration Act of 1965, which eliminated the national origins quotas and produced an extraordinarily diverse flow of migrants from throughout the world.
Just as an aside, I would say that some of us might despair about anti immigrant sentiments that arise from time to time and that are never really absent. But those anti-immigration movements have not taken hold in any significant way. (Proposition 187 is an exception to that, and it was held unconstitutional, as the new Arizona referendum may be.) The striking political fact is that America has no nativist party, and has not had a nativist party for more than a century. The Republican party, which might seem a source of anti-immigrant sentiment, is actually quite pro-immigration now, and its nativist elements, which are very much on the fringe of the Republican party, have been neutralized. No significant effort has been made to change the basic structure of the Immigration Act or to significantly reduce the number of immigrants coming into the United States or the diverse source countries from which they come. There are lots of disputes about asylum policy, the detention of undocumented aliens, the treatment of criminal aliens, and so forth, but there has been no significant assault on the basic notion that we ought to accept immigrants from throughout the world. Apart from Canada, which adopted a pro-diversity constitution in 1982, I can't think of another country on Earth that has embraced diversity in this affirmative way.
Political Theory and Attitudes Toward Diversity
At the end of Chapter 3, I make a point that I believe is very pertinent to our understanding of diversity: how one thinks about diversity, if one thinks coherently about it, depends a great deal on the political theory to which one subscribes. I lay out a number of different political theories or ideologies or social theories, and I ask the question, "How would a person who adheres to this particular position think about diversity? Would such a person think it's a very good thing or a bad thing or in which respects good or bad?" I discuss the liberal view of diversity, the utilitarian view, the communitarian view, and what I call the functional view. The functional view, which is pretty much my position, is that we ought not be driven by the orthodoxies of liberalism, communitarianism, or utilitarianism, but rather by what works and what enables us as a society to adapt to changing conditions in the world. There are strong functional arguments for diversity in terms of learning about a very complex world and adjusting to that through experimentation and new ways of thinking about problems.
At the same time, all of these theories, particularly communitarianism, have some serious misgivings about diversity, if not opposing it entirely. The communitarian believes that what we ought to be about as a society is to organize ourselves in ways that advance certain communal goals. In doing that, diversity poses a real threat because if it is robustthat is, not just diversity among liberal democratsit will become much more difficult than otherwise to identify areas of agreement and to pursue those in ways that will help us to reach a consensus. Communitarianism is all about identifying areas in which we are not diverse and in which commonalities drive us. The costs of decision-making and the likelihood that social agreement can be reached are very much affected by the degree of diversity, and not always for the best.
The next four chapters are the heart of the book, and they examine certain areas and ways in which the law has been used to manage diversity. I use the word manage in a way that is fairly neutral. I say this because managing diversity seems to imply a very active role by government with respect to diversity, but I don't take management to imply that at all. In fact, the subtitle of my book is "Keeping Government at a Safe Distance," which does not bespeak any hostility to government, but does suggest that the relationship between government and diversity is a problematic one. Indeed, in certain respects that I discuss in the book, law is, as I put it, "a natural enemy to diversity." By that, I mean that the modalities of law always reduce complexity and look for bright line rules and perhaps binary categories, ways of rendering the world simpler and more manageable. This is not a conspiracy. It's just the way the law has to work. Regulatory law, for example, almost always suppresses diversityagain, often with good intentions. By management, then, I mean to include a variety of different techniques, some of which involve non-intervention by government, or by certain institutions of government.
These chapters use case studies to illustrate how these various techniques have been used and what their consequences have been. One chapter is on immigration, which also discusses citizenship, multiculturalism, and bilingual educationobviously a very important issue in California. A second analyzes affirmative action. The third concerns the integration of residential communities, either by race or by class. There, I examine three detailed case studies, which some of you who follow urban policy disputes will know about. One of these case studies is the Mt. Laurel controversy, which has been very active in New Jersey for three decades. It is an effort to use the courts and now an administrative agency to integrate suburban communities by class and by race. Another case study is the Yonkers dispute, which roiled a community just outside New York City and led to a series of Supreme Court decisions. The third is the Gautreaux case, a very important decision by the U.S. Supreme Court, involving the effort to desegregate Chicago's public housing projects.
The next chapter is about religion. Here, I discuss the problems that have arisen as we work out the principles for protecting religious diversity without establishing religion in ways that might be held unconstitutional under the Establishment Clause of the First Amendment. I analyze several specific religion-related policy disputes, particularly "charitable choice" and school choice and school vouchers. Religion is deeply involved in school choice because under a system of school choice, most of the private schools receiving government support would be of a religious nature.
The final chapter seeks to distill what I think we can learn from all this. I divide it into premises, which are factual findings that emerge from this; principles and policies, which are normative prescriptions that arise out of my analysis; and punctilios, by which I mean patterns of private conduct that are not readily regulated by law but that govern the way we treat each other, the way we speak to one another, the way we think about one another. In many ways, these are as important as law in determining the success of our efforts to manage a diverse society.
Improving the Discourse on Diversity
As I said, the book begins with a discussion of why our sense of diversitythe way we see, think, and talk about ithas been so impoverished and how this has led to many efforts to manage diversity that are either unrealistic or actually perverse. I want to improve that discourse. We have tried to sweep a lot of real conflicts about diversity under the rug because it is so closely associated with the ways in which we think of ourselves and in which other people think of themselves. We hope to avoid conflict by suppressing certain facts about our diverse society and about the dynamics of group competition, group formation, and group ideologies that are associated with a competitive, sharp-elbowed society like ours. In talking about punctilios, I am trying to identify ways in which we can improve our discourse about diversity and come to a more realistic appraisal of it, to achieve a better understanding of what might be done to draw the benefits of diversity without also courting its dangers. This should enable us to be more honest with one another and to carry the conversation forward, as we will increasingly have to do as our society becomes more, not less, diverse. It is becoming more diverse, even as we speak, because of immigration, because of certain ideologies or political strategies that emphasize our differences rather than our commonalities (including what some have called "identity politics"), and because people's interests, behaviors, and identities become more fragmented and more differentiated as society grows more complex. We must learn how to deal with this in a productive way.
I think that the United States has found a way, through our political principles and our social characteristics (which go back to colonial times) to live with diversity. This is one of the successful features of American life that we can offer the rest of the world. They may not want to hear this, particularly now with the war in Iraq and the rise of anti-American sentiment, but I am convinced that one of the great lesson America can give the world is how to arrange social and political institutions in ways that not only accommodate diversity, but actually exploit its most valuable features.
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