Vol. 13 No. 8 (August 2003)

DIVERSITY IN AMERICA:  KEEPING GOVERNMENT AT A SAFE DISTANCE by Peter H. Schuck.  Cambridge:  Harvard University Press, 2003.  444 pp.  Cloth. $35.00.  ISBN:  0-674-01053-1.

Reviewed by Timothy J. O’Neill, Department of Political Science, Southwestern University.  Email:  oneillt@southwestern.edu.

I confess to being envious of Peter Schuck’s book.  Unfortunately, my mother taught me that envy is a sin.  DIVERSITY IN AMERICA is original, insightful and persuasive.  Its uncommon sense places it high on my “I wish I had written this” scale.

The book’s thesis can be summarized in five statements.  America is not only the most diverse nation in the world today but, for the first time in history, diversity has moved beyond being a fact to becoming a central social value.  Where other polyglot nations tolerate if not fear the ethnic, religious, and cultural divisions within them, America has come to celebrate these divisions.  What began in the mid-1960s as an effort to root out invidious discrimination against minorities has become part of America’s central ideology.  Protagonists in law and government played a part in this transformation, but in their efforts to direct, champion, and sometimes mandate diversity, their well-intentioned contributions have often been meager and even outright perverse.  The free market and informal social norms are usually the best guarantors of individual autonomy and the best sources of group diversity. 

All of this may come across as strident, even ideological.  Schuck, the Simon E. Baldwin Professor at Yale Law School, is neither.  He is a classical liberal.  Individual choice and autonomy are his paramount values.  But his liberalism is refreshingly open-minded and even-handed.  He anticipates and fairly presents the opposing theories and perspectives on diversity in America.  Neither free market champions nor central planning advocates will find aid and comfort here.

Schuck opens his book with the factual bases for his claims and his general interpretive approach.  Chapter Two, for example, lists and describes the distinctions Schuck finds relevant to any analysis of diversity—diversity-in-fact and diversity-as-ideal, normative and descriptive diversity, individual and group diversity, demographic and substantive diversity, among many others.  Yes, this part of the book is as tedious as this listing, and Schuck cautions the reader twice to skip this section and turn to the more substantive chapters.  Since he actually uses these distinctions later in his analysis, it might have been more useful to cut this taxonomic chapter and explain the distinctions as he uses them to explore actual diversity issues and conflicts. 

The substantive chapters tackle immigration, bilingual education, residential housing segregation, affirmative action, and religion and politics.  The 1965 immigration law was “the most powerful engine of ethno-racial diversification in the history of any nation” (p.75).  The repeal of the century-long restriction on immigration from non-European nations enriched American life, but it also posed the greatest threat to national unity since the Civil War (p.99).  How has America overcome the centrifugal forces of diversity without squelching diversity?  Schuck finds the answer in the good fortune of the unparalleled growth of the American economy since 1965, one that expanded the pie for competing factions, and in the rise of popular and corporate cultures that treasure diversity as a vital resource for a rapidly adapting post-modern society.  Schuck is convinced that the rhetoric of diversity has become the reality.  America sees the strength of its unity in its multiplicity.

The question of English language competence accompanied immigration.  Studies indicate that fluency in English is the immigrant’s ticket to entry into the American civic and economic system.  Bilingual education, an idea Schuck believes was hijacked by ethnic group activists and the public school establishment, obstructs rather than facilitates such fluency.  The well-intentioned efforts to preserve subgroup cultures impose grave costs on non-English speaking children and deny genuine choice to their parents.  Schuck argues that cultures are cherished “insofar as they are authentic and spontaneous” (p.105).  Bilingual education imposes an ersatz culture and trumps parental choice.  He champions school vouchers as a device to permit parents to finance their children’s education, while permitting parents to choose the proper tradeoffs between cultural allegiances and their children's entrance into America’s corridors of power.

Immigration contributed powerfully to both the human and social capital of America.  Rather than undermining it, immigration has enlarged the “reservoir of civic trust and interactivity that supports political stability and a rich civil society” (p.151).  Bilingual education, however, is an example of how the government’s efforts to advance diversity are distorted by the law’s deficiencies.  Law reduces the complexity of parental choice, pedagogical claims, and interest group pleadings to a “one hat fits all” formula that stifles rather than liberates genuine diversity.

Affirmative action is the most contentious and unpopular social program since the 1930s (p.134).  Affirmative action’s “ethno-racial categories” lack coherence, as increasing numbers of non-black minorities view themselves as white and a growing number of Americans describe themselves in multi-racial terms.  The categories lack normative justification, since a small number of the targeted groups receive the greatest benefits, while the social costs in terms of unfairness to individuals, the corruption of public discourse on the meanings of justice, and the pernicious effects of race as a central principle of distributive justice are insufficiently weighed.  Moreover, few colleges and universities pursue genuine diversity of perspective.  The greatest predictor of this kind of diversity is one’s political affiliation, with religion being equally significant to race as the second most predictive (p.163).  Few schools use political or religious affiliation explicitly in admissions.

Schuck calls for the courts to reject affirmative action as a constitutional principle and to leave its fate to the robust workings of the ordinary political process.  The lone exception is the constitutional principle permitting specific redress for invidious discrimination against identifiable victims.  Schuck would further ban affirmative action by commercial organizations.  The values of associational freedom and individual choice would permit private, non-profit groups to use affirmative action so long as the basis of, and the mechanism for, their programs are transparent.

Schuck’s account of judicial activism on behalf of residential housing integration is one replete with “compulsive persistence, mythic hubris, and tragic failure” (p.219).  Courts’ efforts have resulted in undermining not only judicial authority but also the appeal of the diversity ideal.  He offers an extended – perhaps too extended – examination of Judge Leonard B. Sand's effort to integrate Yonkers’ residential areas that were segregated by individual housing choices.  Here is the dismal tale of the ham-handed efforts of lawyers and judges to achieve residential diversity.  Delivering “perhaps the most sweeping” order ever issued by a federal court (p.247), Judge Sand squandered money, political capitol and community trust when he moved beyond punishing discrimination against blacks to requiring integration of white communities. 

How earnest judges ignore the complexities of human motives and interests is not a new story.  At least since Muir (1967) and Horowitz (1977), those of us who study judicial competence are familiar with the severely limited capacity of courts to construct new social or institutional arrangements, as opposed to banning systematic patterns of discrimination or to supporting more politically sophisticated actions by politicians and bureaucrats.  DIVERSITY IN AMERICA adds a significant chapter to this now familiar tale.

Schuck’s discussion of religion and politics is his most interesting chapter.  America is not only one of the most religious nations in the world; it is the most religiously diverse.  After recounting how this variety has unfolded, Schuck turns to the courts and evaluates their effectiveness in balancing the legitimate needs of a religious people and a secular nation.  “[T]he law [should] accommodate any religious practice or claim that does not threaten compelling governmental interests” (p.263).  Informal social norms, not governmental authority, should settle debates over such issues as school prayer or moments of silence.  Faith based organizations and school vouchers advance individual choice more than they threaten it.

Ultimately, DIVERSITY IN AMERICA is a fable, a story with a point to it.  This book is a story about “the paradox of an earnest government defeating its own best efforts” to promote diversity.  “In truth, government and law are natural enemies of diversity, especially when they are most eager to create it.  This has nothing to do with motives or incentives and has everything to do with the nature of law, government and diversity” (p.323).  Law’s reductionism oversimplifies complexity and thus threatens diversity.  Inevitably, law helps some values and interests while handicapping others.  And law swiftly becomes a weapon used by those advantaged by it to exploit social resources and processes.  In brief, the Crits are right:  law is a weapon.  However, they are wrong to say that it can only be a weapon of the rich.  Government’s responsibility should extend only to preventing invidious discriminations against protected groups or classes and to checking the various forms of monopoly power that crushes emergent diversity.

Schuck is no Pollyanna.  He describes well the real tension between our diversity rhetoric and our willingness to retire to racially homogenous neighborhoods.  He is alert to the failings of school vouchers and resists the temptation to claim too much for them or any other suggested panacea for our time.  He admits that it is ultimately the quality of the teachers, not the public or private context, that most influence educational outcomes.  Finally, he acknowledges the real threat that fundamentalism in its Christian and Moslem forms can pose to America.  But the world is a grey one to him.  The very things that pose great threats can give rise the things that make nations noble and decent.

For so ambitious a book, Schuck is a modest author.  He concedes that his arguments, indeed even some of his factual assertions, are contentious.  But he hopes that his writing “will help stimulate much-needed and empirically based public and scholarly debates on government’s role in managing American diversity” (p.18).  Once his book is widely read, as it should and will be, we can begin such debates, and the many Americas that compose the United States will be the better for it.

REFERENCES:

Horowitz, Donald L. 1977. THE COURTS AND SOCIAL POLICY. Washington, D.C.: Brookings Institution.

Muir, William K. Jr. 1967. LAW AND ATTITUDE CHANGE. Chicago: University of Chicago Press.

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Copyright 2003 by the author, Timothy J. O’Neill.