The One and the Many

By

Diversity in America: Keeping Government at a Safe Distance

by Peter H. Schuck

(Harvard University Press, 444 pp., $35)

Click here to purchase the book."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 lawnote 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 themalso 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 policymakersit
is accepted as a given by most academic historians these days that,
the United States being a racist society, all its laws have racist
contentbut the Immigration Act of 1965 really did repudiate a quota
system based on national origins. Even more impressively,
Americansnow that they grasp just how many immigrants have joined
their societyhave 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
worstand this, alas, we seem all too anxious to dois 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 anymaybe even allof 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 supportingor, 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 Jerseythat state againwants 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.; "Unlike many treatments of diversity, Schuck's book pays
considerable attention to religion...."

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 objectivesas they once did by mandating prayer in
public schoolthey 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 policysuch as reliance on school vouchers or
promoting charitable choiceare 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 meritespecially by reserving places for
legacies or athletesthat 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.

By Alan Wolfe

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