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Thursday, June 12th, 2003


 

Diversity in America: Keeping Government at a Safe Distance

by Peter H Schuck

The One and the Many

A review by Alan Wolfe

"As a developing municipality, Mount Laurel must, by its land use regulations, make realistically possible the opportunity for an appropriate variety and choice of housing for all categories of people who may desire to live there, of course including those of low and moderate incomes." So spoke the New Jersey Supreme Court in 1975, in Southern Burlington County NAACP v. Township of Mount Laurel. In so doing, the court assumed almost as a matter of natural law — note the throwaway "of course" — that the common good is best served when suburban communities, which ordinarily would attract only middle-class residents, contain people who are different from one another, including differences in the amount of money that they make.

Yet the Mount Laurel decision also indicates how confused, if not incoherent, our national discussion of diversity has become. By force of public opinion, and increasingly by force of law, Americans now believe that it is wrong for communities (or clubs and associations) to be composed of people exclusively of one race or gender. The same is not true of class. Suburbia has long been defined by its distance, geographic and economic, from the city and the poorer people who live there. Suburbia's rejection of economic diversity, far from constituting an infringement of individual rights, has generally been viewed as the embodiment of them. We are allowed to claim on the basis of income the very exclusivity that is no longer available to us on the basis of race, gender, or religion. Thus it is that the Augusta golf club faced considerable pressure to integrate its members by race and is now under attack for excluding women, but nobody has questioned its requirement that only people of considerable means can become members, and only by invitation.

To say that Mount Laurel cut against the grain of the ways Americans think about diversity is to put it mildly. The considerable effort made by New Jersey's judiciary to bring people of different class backgrounds to the suburbs was met with passionate resistance. Two years after its initial decision, the court, recognizing how far it needed to go to impose its will on reluctant New Jerseyans, issued what Peter H. Schuck calls "one of the most extraordinary judicial opinions ever written." To further the goal of economic diversity, the court produced Mount Laurel II, which instructed lower courts to allow subsidies for developers in order to encourage them to make suburban housing available to the poor. More noticeably, it took unprecedented steps to enforce its edicts. Responding to efforts on the part of municipalities to bring lawsuits against its findings and chastising the legislature for its failure to join with the court in imposing its views on the people of the state, Mount Laurel II divided the entire state into three zones and assigned to each zone a trial judge responsible for any litigation that emerged around the issues raised by the court. Mount Laurel II, Schuck observes, "was a breathtaking assertion of judicial power, policy-making initiative, and remedial innovation."

It was also a failure. Many years after the decision, New Jersey had little to show for it. Of the 243,736 housing units required to meet the court's goals, only 28,392 had been built by 2001. The most obvious way to integrate suburban communities by income involves establishing a required earnings amount so low that only poor people could meet it. Yet it turns out that middle-class youngsters holding entry-level jobs — "junior yuppies," as one observer of the Mount Laurel imbroglio called them — also qualified, and they became the prime beneficiaries of Mount Laurel II. "The court in Mount Laurel did not just select the wrong tool for reforming affordable housing generally," Schuck concludes. "It also chose the wrong target and offered the wrong justification for what it was doing."

The Mount Laurel controversy nicely illustrates the two major contributions to the way we think about diversity that are elaborated with insight and subtlety in Peter Schuck's book. The first is the idea that that diversity, which is generally a good thing, is not a good in and of itself; it becomes valuable only when it contributes to other objectives. In the debate over affirmative action, for example, the value of diversity, according to those who support the ideal, is that it exposes students to different points of view; and without that additional educational rationale, there would be no reason to take special steps to ensure that a student body is composed of people of different races. (As Peter Wood's recent book Diversity noted, this argument undercuts those who defend all-female institutions of higher learning, no matter how many minority women are admitted.) Even those who support affirmative action with some reluctance do so on the basis of what may be called "diversity plus." Those who argue that no state can allow its publicly funded educational institutions to depart radically from the demographic profile of the state in general are making their case on the basis of fairness and representation, not on the basis of diversity as such. One reason that Schuck is so critical of the Mount Laurel decision is that the judges never spelled out the rationale behind their insistence on economic diversity. The court promoted diversity as an end in itself, and, lacking any further rationale, was forced to ratchet up its compliance mechanisms because so few citizens of New Jersey could understand why they were being asked to sacrifice for the sake of a principle that had no immediately observable purpose.

Schuck's second major idea about diversity is also illustrated by Mount Laurel. He believes that we are best off leaving the pursuit of diversity to the choices made by private individuals. Courts are often reluctant to do this because they believe that Americans prefer to live, to work, and to study with people like themselves; and, lacking sufficient compliance mechanisms, diversity, in their view, will never be achieved. Schuck confronts this point of view at every level. Compared to any other country in the world, he contends, Americans welcome diversity. Many countries, most notably France, insist on unity as a precondition for citizenship; and even ethnically diverse societies such as Nigeria, India, and Indonesia fear diversity for its potentially disruptive impact.

Our commitments to diversity, moreover, generally flow from the bottom up rather than from the top down. Since the Immigration Act of 1965, Americans have found themselves surrounded by people from Asia, Latin America, and the Middle East, and they have, with few exceptions, responded positively to the sense of entrepreneurship and opportunity that immigrants bring with them. Although we segregate ourselves into lifestyle ghettos and allow ourselves to be organized into "niche" markets, Schuck writes, "we welcome (or at least tolerate) different ways of speaking, dressing, eating, praying, working ... and living, which seems to evince a remarkably easy-going, shoulder-shrugging attitude toward cultural differences that many first-time visitors find striking."

Given the failures of courts to win widespread backing for plans as ambitious as those proposed for Mount Laurel, or the sometimes equally complicated formulae used to ensure a targeted racial mix in a university's student body, we are best off applying the lessons of economics to those of politics and culture. Private initiative, Schuck asserts forcibly, can be more efficient, and produce fewer unexpected side effects, than public action. Ever the opponent of absolutist thinking, Schuck recognizes that sometimes government will have to be used to promote the goals that go along with diversity. But it ought to be something of a last resort, relied on only when private efforts fail.

Even our diversity is diverse, Schuck points out. We celebrate differences rather than difference. And our differences take at least four major forms: Americans come from different countries of origin, they have different racial and ethnic identities, their residential patterns are different from one another, and they adhere to different faiths. Diversity in America devotes chapters to the ways Americans have approached each of these differences.

Historians tend not to find idealistic motives among policymakers — it is accepted as a given by most academic historians these days that, the United States being a racist society, all its laws have racist content — but the Immigration Act of 1965 really did repudiate a quota system based on national origins. Even more impressively, Americans — now that they grasp just how many immigrants have joined their society — have not chosen to repeal the law; if anything, public policy toward immigrants has become more generous since 1965. Organized labor, which once viewed immigrants as threats to full employment, argues on behalf of an amnesty for illegal immigrants. Higher fertility rates among immigrants compared to non-immigrants have not set off well-received eugenic alarm bells for restriction. Nobody has suggested revising the principle of jus soli, under which anyone born within the United States is automatically entitled to American citizenship. Unlike many other countries, the United States now allows its immigrants to retain dual citizenship; 90 percent of legal immigrants are eligible to keep the citizenship of their country of origin. (Immigration is an arena that allows Americans to lecture the French on their own moral failings; they, after all, have Jean-Marie Le Pen and we do not.)

Should we encourage immigrants to assimilate to American culture? Despite the fact that significant numbers of immigrants now live in subcommunities that enable them to preserve aspects of their language and religion, there is no need for us to debate this question. "By almost any definition," Schuck writes, "assimilation of immigrants to American life is proceeding rapidly, fueled by market incentives, the need and desire to learn English, the allure of sports, and a powerful, mass media-shaped national culture." The best we can do is to allow the process to run its own course. The worst — and this, alas, we seem all too anxious to do — is to use government to enable immigrants to preserve their cultures of origin.

As with Mount Laurel, courts have involved themselves in the dynamics of immigrant assimilation, often with disastrous results. Lau v. Nichols in 1974 upheld guidelines generated by the U.S. Office of Civil Rights that effectively established the right of immigrants to have their cultural heritages protected and promoted by American public schools. Schuck, never one to mince words, calls the governmental mandates that followed Lau "expansive, intrusive, and prescriptive." By emphasizing cultural maintenance, public policy stood in opposition to the wishes of many immigrant parents (who wanted rapid assimilation), the needs of children (whose learning was held back by dubious pedagogical schemes), and the strong preferences of non-immigrant Americans (who welcome people from other countries while insisting on the importance of fluency in English). Commitments to bilingualism, in Schuck's view, stand as a model of how to get everything wrong when it comes to diversity: "What had begun as an ostensibly professionalpedagogical dispute over how best to help children transition quickly to the agreed-upon goal of English proficiency now became a struggle over the value-laden and ideologically divisive issues of multiculturalism, the nature and pace of assimilation, and even the character and future of American citizenship."

"I know of no other public policy since the rise of the administrative state during the New Deal that has remained so intensely unpopular ... yet that has survived so long." Schuck was not thinking of bilingualism when he wrote this sentence; his description applies to affirmative action. His one chapter on this touchy subject is worth more than any — maybe even all — of the books devoted to the issue. He notes that there are many good reasons that have been offered on behalf of affirmative action, among them: the need to make restitution to African Americans for past racism; to acknowledge that merit has not always been the criterion used to admit students to prestigious universities; to counter the caste-like status of African Americans in today's still often racist environment; to train future leaders from minority groups; to compensate for the racial stereotypes that prevent markets from operating efficiently; to allow institutions some autonomy in deciding what goals they wish to serve; and, last but not least, to promote diversity. But it is precisely the presence of so many rationales for affirmative action that suggests why we ought to question it. It seems clear to Schuck that for many of its advocates, the techniques of affirmative action (which so often resemble quotas) come first and the rationales come afterward. This is what makes affirmative action resemble the New Jersey experiment with mixed housing. Americans are being asked to support something called diversity without being told what secondary values they are also supporting — or, more correctly, while being told that the secondary values are so plentiful that they frequently shift around in importance.

In the meantime, affirmative action, since it relies so strongly on either enforcement by government or on dubious means never fully exposed to the public, inevitably produces unexpected consequences that undermine whatever validity the many rationales offered on its behalf are said to promote. Schuck illustrates his point with an example from racial profiling. New Jersey — that state again — wants its state troopers to avoid singling out black drivers and treating them differently from white drivers. Nobody can object to such a purpose. But to monitor their performance, data has to be kept on how many stops troopers make that involve members of racial minorities compared to whites. And how do the troopers know the race of those they stop? All 2,700 troopers had to take mandatory classes, paid for by the taxpayers, to learn how to tell one race from another based on "skin color" and "facial characteristics." If this does not send a chill up the spine of those who insist on having government classify by race, nothing will.

As ought to be obvious from his comments on Mount Laurel, Schuck is also highly critical of governmentally sponsored efforts to tamper with private choices in housing markets. Mount Laurel was not the only attempt by judges to impose their conceptions of diversity on reluctant citizens. In Yonkers, Judge Leonard Sand spent most of the 1980s trying to do the same thing. In an extremely complicated and extraordinarily litigious environment, Sand held the city of Yonkers directly responsible for housing segregation and ordered the city to remedy the problem. His order, Schuck writes, was "perhaps the most sweeping ever entered by a federal court." The judge's objective was not merely to build new public housing for those often excluded from the private housing market; instead, Sand, like the New Jersey court in Mount Laurel II, would not be satisfied by anything short of integrating city residents by race and class. Yonkers officials, not the most liberal politicians in the world, went apoplectic at the idea of disturbing residential patterns that many of them viewed as part of the natural order of things.

Schuck believes that better options existed. He is particularly fond of the Gautreaux Assisted Housing Program in Chicago, which offered publicly funded vouchers to inner-city residents to help them pay fair-market rents in suburban communities. Although many who took advantage of the program were greeted with noticeable if non-violent hostility in their new communities, eventually the tensions subsided. And there can be little doubt that those who moved were better off from the experience, which brought within their reach safer streets and better schools. (Schuck does not mention this, but inner-city Chicago politicians were the only significant opponents of Gautreaux: they worried about the possible dilution of their electoral base.) Vouchers have the advantage of invisibility, Schuck notes; no one knows who is being subsidized and who is not, thereby eliminating a potential source of stigma. No wonder that Gautreaux succeeded where Mount Laurel and Yonkers failed. Some 7,100 families had moved by the fall of 1998, when the program formally came to an end, and the experiment encouraged other "mobility-based" housing programs around the country.

Unlike many treatments of diversity, Schuck's book pays considerable attention to religion. Of all the diverse ways in which people can be diverse, religion has been the source of greatest strife. It is all the more remarkable, then, that the United States, almost alone among liberal democracies, proclaims religious diversity as an ideal. As with any other form of diversity, we do not value a plurality of faiths merely because it is good to have many different beliefs; religious diversity is inevitably linked to the objective of tolerance. Between the choice of insisting on communitarian objectives best represented by an established church and accepting an individualism that includes the right to believe in any faith that makes sense to you, we have opted for the latter. Schuck would reinforce our individualistic inclinations by making choice central to the way we think about the requirements of faith. In Goldman v. Weinberger in 1986, the U.S. Supreme Court ruled that an Orthodox Jewish soldier could be required to take off his yarmulke without having his religious rights violated. (Congress soon thereafter passed a law giving him back his right.) For Schuck, it matters whether the soldier was conscripted or volunteered to join the army. If he had no choice in the matter, forbidding him to wear the yarmulke would be more serious than if he had chosen of his own free will to join the Armed Forces.

As much as possible, Schuck would have the courts adopt a "choice-facilitating approach" to church-state controversies, allowing both those who believe and those who do not maximum scope to pursue their objectives. If religious believers insist on compulsion to realize their objectives — as they once did by mandating prayer in public school — they are engaged in the equivalent of forcing racial integration through government and ought to be resisted. (But Schuck warns against a loose definition of compulsion: it is not coercive, in his view, when non-denominational prayers are offered at school graduations.) More recent efforts to recognize a role for faith in public policy — such as reliance on school vouchers or promoting charitable choice — are acceptable to Schuck, since many different religious traditions can rely on them to pursue aims of their own choosing.

Those who claim to be in favor of diversity nearly always invoke the authority of government to promote their cause. But government and law, Schuck writes, "are natural enemies of diversity, especially when they are most eager to create it." Law generally seeks uniformity, not diversity. Hence the paradox that efforts to rely on government to achieve diversity have about them a remarkable sameness. Affirmative action, to take the most obvious example, is designed to bring to universities students with widely contrasting backgrounds and experiences, but universities in every state and region of the country, irrespective of whether they are private or public, promote affirmative action in nearly identical ways. Let diversity become a pronounced objective of public policy, and spontaneity, improvisation, and voluntarism give way to standards, percentages, and plans.

Building on this paradox, Schuck argues that we value diversity most when we perceive it as "authentic, natural, and uncontrived." Those who recall Jane Jacobs's book The Death and Life of Great American Cities will immediately recognize the ideal that Schuck is describing. Uniformity was Jacobs's great enemy. Turn a city neighborhood over to a single commercial use, build within it just one kind of housing, or crisscross it with streets of the same length, and the area will die. Against city planners, Jacobs praised the spontaneous ecology of urban life, the often invisible habits that led the workaholic to leave her key with the grocer so that the telephone repairman could have access to her apartment. Greenwich Village contained its diverse mixture of Italian ethnics and bohemian artists because nobody ever developed a scheme that threw them together. Schuck applies the same way of thinking to our national community. We risk losing our diversity because we care so much about it. Were we a bit less vigilant, we would find ourselves with a great deal more of it.

Other paradoxes abound when it comes to diversity. The accomplishment of diversity in some spheres of life is made possible by uniformity in other spheres of life. To serve the goal of diversity, we may be best off allowing those who feel strongly enough about a common characteristic to exclude those who lack that commonality. For one thing, restricting membership in a group to Asians, heterosexuals, Christians, or men means that some considerable diversity will still exist, since those broad categories will still contain many different kinds of people. And this is not the only reason to tolerate homogeneity in pursuit of heterogeneity. Evangelical colleges that exclude Jews and Catholics are intellectually poorer because of their policy, but they are also among the first to defend the rights of other religions to fashion communities of their own choice. To deal forthrightly with people different from yourself can require the kind of self-confidence that flows from dealing with people like yourself.

As a consequence of such ironies, diversity management is a complicated business that can never produce perfect results. It is a fact of life that law schools that choose to emphasize racial diversity will sacrifice a substantial degree of intellectual diversity, for the consensus necessary to achieve the former goal carries with it the implication that fewer conservatives, or even liberals who have qualms about affirmative action, will be hired. The least we can do, Schuck insists, is to recognize that trade-offs, unanticipated consequences, and sometimes zero-sum games will influence how we make choices about diversity. This we rarely do. All too often we pursue diversity as if we know exactly what it is and believe we can achieve it without considerable cost.

While government should not develop plans for how diversity ought to be realized, it does have two roles to play, in Schuck's view, in the process of diversity management. It should continue to insist on principles of anti-discrimination. The Civil Rights Act of 1964 and the Americans With Disabilities Act of 1990 are designed, technically speaking, to achieve equal opportunity for individuals, not to ensure diversity among groups. In both cases, moreover, those singled out for protection are individuals who belong to groups that were, before the passage of anti-discrimination protection, treated by majorities with distinct disrespect. We ought to be judicious, Schuck believes, in applying anti-discrimination principles. There is less reason to insist on anti-discrimination rights when the people to be protected are in the majority: parents, for example, or women, both of whom can rely on the market to achieve greater equality rather than the state.

Schuck also sees a role for government in preventing the formation of cultural monopolies. Just as antitrust laws in the economic sphere encourage competition and the First Amendment in the political sphere is designed to facilitate the expression of many points of view, so, too, diversity can be advanced when people have more choices. They should be able to assert their own racial or ethnic identity without having one imposed on them. If they want religious schooling for their children, they ought to be allowed vouchers. Instruction in a particular language should not be forced upon them. The greater our tendency to monopolize, the more fierce become our battles over multiculturalism; and the more we learn to rely on private solutions such as vouchers, the more likely that the passions will be diffused. Some national standards will still be necessary. We might conclude as a society, for example, that the desire of some parents to give as much time to creationism as to evolution fails to meet the test of science and ought not to be permitted in the name of diversity. But we should be judicious in establishing such standards and allow as much role for choice as we can.

The timing of Peter Schuck's important book could not be better. As the wars over political correctness wane and the extraordinary impact of immigration reform becomes more fully accepted, the United States finally seems prepared to avoid some of the more extreme positions that have arisen in our debates over diversity. On the right, xenophobia has given way to electoral realities. (Consider the swing states of Michigan and Florida, and the need of both parties to win Muslim votes in the one and Latino votes in the other.) On the left, the idea that society cannot impose any requirements on cultural groups is all but dead; even liberal Massachusetts recently passed, by an overwhelming majority, a Ron Unz-sponsored measure designed to bring official bilingualism to an end. When it comes to diversity, the center has held; and Schuck's book essentially defines that center. He has made the legal case for common sense.

Within the center, there is not, and there ought not to be, agreement on all questions of diversity management. I do not agree with Schuck's treatment of two of the four kinds of diversity that he analyzes. Discrimination in housing requires more active governmental steps to achieve diversity than he acknowledges. As Schuck himself points out, white residents of Yonkers and the politicians who appealed to them "violated the constitutional rights of its minority residents, demonstrated contempt for the rule of law, and nearly destroyed the community, leaving wounds that may never heal." Intransigence so strongly entrenched may not justify the determination of Judge Sand to impose integration by fiat, but it makes it understandable. There are times when the force of law must be used to set an example, even when resistance is fierce. Yonkers had been allowed to segregate its neighborhoods by race for too long, and at too high a cost to its significant African American population, to justify any further reliance on private means to achieve fairness.

Along similar lines, I find myself unpersuaded by Schuck's conclusion that affirmative action has outlived whatever usefulness it may have had. Public universities, since they are funded by all taxpayers within a state, are under an obligation to represent, in one way or another, those who finance their activities. And private universities have used their autonomy from government in ways so corrosive of admission by merit — especially by reserving places for legacies or athletes — that they have undercut any rationale for denying similar admissions preferences on the basis of skin color. Indeed, recent evidence that universities lower their admissions requirements for future donors makes it all but impossible for courts to rule against affirmative action: corrupt quotas have become so much a part of the retreat from merit in Ivy League institutions that to deny them to African Americans at this point would constitute an egregious example of a racially motivated double standard. The recently concluded oral arguments before the Supreme Court on the Michigan affirmative action case seemed to suggest some surprising resistance, even from conservative judges, to abolishing preferences entirely, and even the Bush administration chose not to opt for the most conservative position available to it in its briefs. For all the troubling questions raised by affirmative action (and there are many), if we have to choose between abolishing it and maintaining it, the latter is perhaps the wiser course at this time.

Whichever direction we take on affirmative action, however, we will take it with a greater understanding of the issues at stake because of Peter Schuck's intervention. Diversity in America is a model of academic scholarship. The United States was given a significant amount of diversity before it had the law and theory in place to understand what it was doing. Thanks to Schuck, how we think about diversity is finally catching up to the complexities and the nuances of diversity itself.


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