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Overview
Although most discussions of diversity have focused on race and ethnicity, Levinson is particularly interested in religious diversity and its implications. Why, he asks, do arguments for racial and ethnic diversity not also counsel a concern to achieve religious diversity within a student body? He considers the propriety of judges drawing on their religious views in making legal decisions and the kinds of questions Senators should feel free to ask nominees to the federal judiciary who have proclaimed the importance of their religion in structuring their own lives. In exploring the sense in which Sandy Koufax can be said to be a “Jewish baseball player,” he engages in broad reflections on professional identity. He asks whether it is desirable, or even possible, to subordinate merely "personal" aspects of one’s identity—religion, political viewpoints, gender—to the impersonal demands of the professional role. Wrestling with Diversity is a powerful interrogation of the assumptions and contradictions underlying public life in a multicultural world.
Product Details
| ISBN-13: | 9780822385141 |
|---|---|
| Publisher: | Duke University Press |
| Publication date: | 10/27/2003 |
| Sold by: | Barnes & Noble |
| Format: | eBook |
| Pages: | 352 |
| File size: | 767 KB |
About the Author
Sanford Levinson is W. St. John Garwood and W. St. John Garwood Jr. Centennial Chair in Law at the University of Texas School of Law. He is the author of Written in Stone: Public Monuments in Changing Societies (also published by Duke University Press) and Constitutional Faith.
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Wrestling with diversity
By Sanford Levinson
Duke University Press
ISBN: 0-8223-3239-6
Chapter One
Diversity
Introduction
As Princeton political theorist Stephen Macedo says at the very beginning of his important book, "[d]iversity is the great issue of our time: nationalism, religious sectarianism; a heightened consciousness of gender, race, and ethnicity; a greater assertiveness with respect to sexual orientation; and a reassertion of the religious voice in the public square are but a few of the forms of particularity" that we confront daily under the general rubric of diversity.
My own interest in the topic may truly be described as overdetermined. As a teacher of constitutional law for a full quarter-century, I have invariably assigned and discussed various cases and materials involving affirmative action or the toleration that is due particular religious sects whose behavioral norms are radically at odds with those of most of their fellow Americans. Indeed, I have offered seminars on multiculturalism and the Constitution. I might add that I also address some of these subjects in a second-year course that I often teach on the particular role that the Constitution plays in structuring the contemporary American welfare state, for many of the constitutional struggles about diversity are strongly interlaced with the realities of the modern welfare state. Were there, for example, no state universities providing education to their students at significantlybelow-market cost, then many of the most volatile debates about affirmative action-i.e., the use of racial or ethnic preferences to select those who shall receive such benefits-would be off the table. Similarly, as Chief Justice Rehnquist has argued, we would not be debating whether the state must pay unemployment compensation to someone who has left a job for religious reasons-another issue that tests one's views on the practical meaning of diversity and multiculturalism-if the modern state were not, in fact, supplying such compensation. Thus my teaching interests alone could adequately explain my interest in the topic of diversity.
It is scarcely irrelevant, though, that my home setting, the University of Texas Law School, has the unique distinction (if that is the right word) of being the defendant in two of the three most important cases involving the particular topic that probably most often comes to mind upon hearing the word "diversity"-the use of racial classifications in higher education. What to many of my colleagues elsewhere is quite literally only an "academic interest" has, for us at the University of Texas, become extraordinarily important in shaping the circumstances of our daily lives as teachers. Whatever one's teaching interests, it is impossible for anyone at the University of Texas to avoid grappling with the implications of diversity-or its absence-as a reality of contemporary American life.
Some Relevant Cases
I begin with the three cases to which I have previously alluded, not because I intend in this discussion to break new doctrinal ground or, for that matter, even offer suitably elaborate explication of contemporary doctrine, but, rather, simply to set the stage for the more theoretical issues that are my principal focus. The first case is Sweatt v. Painter, in which Heman Sweatt, who was denied admission to the University of Texas Law School for no reason other than his being African American, successfully challenged the school's admissions policy on constitutional grounds. Texas had, in a desperate attempt to come under the "separate but equal" doctrine that had not yet been invalidated in Brown v. Board of Education, established a so-called downtown law school that nonwhites could attend. The Supreme Court aptly cut through any arguments that this facility was in fact equal because courses were taught by University of Texas faculty in classes with a better ratio of students to teachers than existed across town at the "real" University of Texas. As Chief Justice Vinson wrote, "[t]he law school, the proving ground for legal learning and practice, cannot be effective in isolation from the individuals and institutions with which the law interacts." He noted that Texas's policy excluded African Americans from contact with "the racial groups which number 85 percent of the population of the State and include most of the lawyers, witnesses, jurors, judges and other officials with whom petitioner will inevitably be dealing when he becomes a member of the Texas Bar."
Although the word was not then in common use, I do not believe it is an undue stretch to interpret the Court as pointing out that legal education, practically speaking, demands that students be exposed to the diversity of groups within the state if they are to be effectively prepared for the various tasks of the practicing lawyer. Although Vinson made no argument that white students were significantly harmed by being deprived of access to the remaining 15 percent of the population, it seems impossible to believe that the Court then, or anyone now, would question the presence of such harm, even if it was, as a practical matter, far less damaging to white students' future effective ability to practice law than to African American law students deprived of an integrated educational setting.
The second great case is, of course, Regents of the University of California v. Bakke, which tested the legitimacy of an admissions program established by the Regents in regard to the medical school at the University of California-Davis. The Court was bitterly divided and incapable of producing a majority opinion, as has often been true of cases involving racial preferences. Four "liberal" justices would have upheld the Davis program, which set aside sixteen places to which only members of certain racial and ethnic minorities-in particular, "Blacks, Chicanos, Asians, and American Indians"-could apply. Four others would have flatly rejected it, though they relied on a federal statute forbidding the taking of race into account rather than on the Constitution itself. The "swing" opinion was that of Justice Powell. Like the four "liberals," Powell held that the statute meant only that race could not be taken into account in any way that would violate the Equal Protection Clause of the Fourteenth Amendment. One must, therefore, determine not whether California had taken race or ethnicity into account, which it obviously had, but, rather, whether it had sufficiently good (and constitutional) reasons for doing so. Although Powell agreed with the "conservatives" that the particular program was indeed illegal because it operated as a hard-and-fast quota, he nonetheless agreed with the "liberals" that race and ethnicity could be taken into account by universities in the admissions process so long as it wasn't part of a process that included rigid quotas (as distinguished from "goals").
Most important, Powell justified the possibility of racial or ethnic preferences on the grounds that they represented a reasonable way to achieve diversity within a student body, a goal that he thought legitimate. Earlier in his opinion, he had explicitly rejected the legitimacy of such preferences as a way, for example, of responding to (and thus seeking to remedy) the past history of American racial discrimination or of providing "role models" of achievement by members of the benefited minorities that would, presumably, both inspire others of their own group and serve to dispel invidious stereotypes on the part of the majority population.
In discussing the diversity rationale, Powell quoted, with seeming endorsement, a Harvard statement about its own admissions criteria. The drive to produce "diversity" within the student body had led the Harvard admissions committee to pay special (and, presumably, favorable) attention to the race of applicants. "'[T]he race of an applicant may tip the balance in his favor just as geographic origin or a life spent on a farm may tip the balance in other candidates' cases.'" Furthermore, Harvard explained that the desire to "provide a truly heterogeneous environment that reflects the rich diversity of the United States" required paying some attention to the numbers of applicants admitted.
It would not make sense, for example, to have [only] 10 or 20 students out of 1,100 whose homes are west of the Mississippi. Comparably, 10 or 20 black students could not begin to bring to their classmates and to each other the variety of points of view, backgrounds and experiences of blacks in the United States.
One way of interpreting Harvard's policy is simply the recognition that no sane person could in fact believe that there is a singular "black point of view" or "black experience," any more than there is a singular identity binding together persons from "west of the Mississippi." That is, even if the addition of persons from the category of African Americans, relative to a homogeneously white population, represents a net gain in diversity, along at least one dimension, it is also the case that one must pay attention to the diversity within any of the relevant racial or ethnic groups. Critics of affirmative action, including members of the United States Supreme Court, sometimes write as if supporters of affirmative action ignore the presence of intragroup diversity, but this is clearly false. I know of no one who is so stupid as to believe that all (or even most) members of any given group necessarily have similar opinions on a variety of important issues.
In any event, because of Justice Powell's emphasis on the almost unique legitimacy of diversity as a constitutional value, it has become the favorite catchword-indeed, it would not be an exaggeration to say "mantra"-of those defending the use of racial or ethnic preferences. As Eugene Lowe has written, "[c]elebrating the value of racial and ethnic diversity has become routine in educational circles," not least, it should be obvious, because such celebrations seem licensed and, indeed, encouraged by the Supreme Court. Whatever the actual efficacy of the Supreme Court in changing the behavior of American institutions, it seems indisputable that the Court sometimes fulfills the function of the French Academy in establishing the conventions of "law talk," so that all properly socialized lawyers, and many nonlawyers as well, adopt certain conventions of argument because the Court leads the way. It is a version of the old children's game of "Simon Says." If Simon says, "Stop talking about the difference between commerce and manufacture," then a mode of analysis that had been constitutive of law talk only a few years before=? disappears almost overnight. More to the present point, if Simon says, "Start talking about diversity-and downplay any talk about rectification of past social injustice," then the conversation proceeds exactly in that direction.
Diversity is thus a ubiquitous topic of contemporary discourse. Indeed, it has joined family values and good medical care as something that everyone is for, as demonstrated by the fact that it is becoming ever more difficult to find anyone who is willing to say, in public, that institutional or social homogeneity is a positive good and diversity a substantive harm. Opponents of affirmative action almost never attack the merits of diversity per se, but, rather, the specific means thought necessary to assure the achievement of a desired degree of diversity. Were that degree attainable by nonobjectionable means, most opponents of affirmative action insist, they would be utterly delighted.
"Diversity" is, however, not a self-interpreting word. Political theorists have for several decades now posited the notion of "essentially contested concepts," i.e., notions that are extremely important but, nonetheless, without truly definite meaning. Consider the crucial American value of "freedom"; one is foolish indeed to believe that Americans have ever agreed on precisely what that term entails, although all have agreed that it is a term worth fighting (and killing) for. Perhaps my favorite example of "essential contestedness" can be found in the very title of a marvelous book, Equalities, where Yale professor Douglas Rae and his coauthors elaborate no fewer than 128 logically coherent notions of "equality." One reason why debates about, say, the Equal Protection Clause are so bitter is because one person's cogent notion of equality may differ drastically from another's equally cogent notion, though each prefers to believe, falsely, that only his or her particular notion represents "real" equality. Would that it were that easy! The same, I fear, is increasingly true of those who raise the banner of "diversity" and then argue bitterly about its meanings, especially in a context where one seeks not only, if at all, the agreement of the trained philosopher but also, and as a practical matter far more importantly, the imprimatur of a court trained to think that some legal magic resides in a program's being successfully described as contributing to diversity.
Consider now the third of the key cases-and the second one to involve the University of Texas Law School-Hopwood v. Texas, in which Cheryl Hopwood successfully challenged the admissions program at the University of Texas Law School insofar as it took race and ethnicity into account. Although the federal district judge had upheld the admissions process in operation at the time of the judgment, a three-judge panel of the Fifth Circuit Court of Appeals reversed the judge and held that the law school must design an entirely race-neutral admissions process. But what about Bakke and its toleration of a race- and ethnic-sensitive, diversity-seeking admissions policy? A majority of the panel held that Bakke no longer stated the effective view of the Supreme Court and, therefore, the operative meaning of the Equal Protection Clause.
The majority noted the undoubted fact that Justice Powell spoke for himself alone, as well as perhaps the even more embarrassing fact, at least in retrospect, that the four justices who would have upheld the Davis program did so not by reference to the value of a diverse student body-a notion wholly absent from their opinions-but, rather, by emphasizing the program's utility in overcoming an egregious heritage of past discrimination. The majority held that subsequent decisions had so undercut Justice Powell's pro-diversity rationale that the panel, however "inferior" it might be within the structure of federal courts, was no longer bound by it. Instead, it interpreted post-Bakke cases as holding "that the use of ethnic diversity simply to achieve racial heterogeneity ... is unconstitutional." The Hopwood panel came as close as any court has yet done to reading the Fourteenth Amendment as indeed requiring the "color-blind[ness]" of which Justice Harlan spoke in his canonical dissent in Plessy v. Ferguson.
Does this mean that university admissions must be based on a single metric from which no deviation is allowed? Not at all. The court points to "a host of factors" that can legitimately be considered in the admissions process, including "ability to play the cello, make a downfield tackle, or understand chaos theory. An admissions process may also consider an applicant's home state or relationship to school alumni." Which means, for example, that the most important affirmative action program at the University of Texas Law School-the rigid setting aside, as a quota, of a full 80 percent of seats at the school for residents of Texas, whatever their "merit" may be when compared with nonresident applicants-is apparently safe from any kind of attack. Moreover, law schools "specifically may look at things such as unusual or substantial extracurricular activities in college, which may be atypical factors affecting undergraduate grades." Finally, schools were given permission to "consider factors such as whether an applicant's parents attended college or the applicant's economic and social background." It should be obvious that the court cannot fairly be described as hostile to diversity as such (but only to the specific kind of diversity that is at the heart of the contemporary debate).
The point is best demonstrated by Judge Jerry Smith's own gratuitous comment in the majority opinion that
Plaintiff Hopwood is a fair example of an applicant with a unique background. She is the now-thirty-two-year-old wife of a member of the Armed Forces stationed in San Antonio and, more significantly, is raising a severely handicapped child. Her circumstance would bring a different perspective to the law school.
(Continues...)
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Table of Contents
Acknowledgments ixIntroduction 1
1. Diversity 11
2. Promoting Diversity in Public Schools (Or, To What Extent Does the Establishment Clause of the First Amendment Hinder the Establishment of More Genuinely Multicultural Schools?) 62
3. "Getting Religion": Religion, Diversity, and Community in Public and Private Schools, with Meira Levinson 90
4. Identifying the Jewish Layer: Reflections on the Construction of Professional Identity 124
5. National Loyalty, Communalism, and the Professional Identity of Lawyers 159
6. The Confrontation of Religious Faith and Civil Religion: Catholics Becoming Justices 192
7. Abstinence and Exclusion: What Does Liberalism Demand of the Religiously Oriented (Would-Be) Judge? 233
8. Is Liberal Nationalism an Oxymoron? An Essay for Judith Shklar 256
9. "Culture," "Religion," and the Law, with Rachel Levinson 278
Bibliography 319
Index 331
What People are Saying About This
“Sandy Levinson’s essays are real page-turners. You want to turn the page to find out how he comes out on the incredibly provocative questions he poses. Whether it be ‘Does diversity have any real value?’ or ‘Was Sandy Koufax a “Jewish pitcher”?,’ Levinson’s answers always surprise. He is one of those rare academics who belong to no club and subscribe to no overarching ideology. He actually thinks for himself and always poses questions and suggests answers that make you think. To read these essays is to engage in a dialogue with one of America’s most interesting minds.”
“Issues of identity, diversity, and multiculturalism sit at the center of our public debates, but discussions of these related terms are too often partisan, over-heated, and without nuance. Not so Sanford Levinson's Wrestling with Diversity. At once thoughtful and passionate, it is evenhanded without being in any way equivocal. It provides readers with examples to think on and with analyses that deepen the questions they raise. A wonderful book.”
“People talk a lot about language being performative: Sanford Levinson's kind of high level analysis and his extraordinary sensitivity to the positions of others make his method the very model of what one would hope for in a ‘multicultural’ society.”