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Diversity in America by Peter H. Schuck (Belknap Press, 444 pages, $35) The slim majority of the Supreme Court that, in the recent Grutter v. Bollinger decision, concluded that diversity in higher education can be an interest of the state so compelling as to justify preferences based on race, mirrored commonly held popular beliefs in at least one respect. The notion that diversity is a desirable social ideal and a legitimate institutional goal is widely accepted. In their own ways, for example, both major political parties extol diversity as a core American value. Our wrenching debates about diversity concern the tools, if any, that the government can use to influence the natural progress of social development towards greater heterogeneity. Peter H. Schuck, a professor at Yale Law School, strives in Diversity in America: Keeping Government at a Safe Distance, to “think more deeply and systematically about what diversity means, how it should be managed, and how law and other social processes can best contribute to that endeavor.” Schuck has ably tackled a daunting task. Drawing on many sources, he details the racial, ethnic, religious, and other diversities of the nation; explores the many ways we define diversity as a social ideal; analyzes how we have employed state power to encourage, restrain, and control diversity; and sifts out lessons that can be derived from the failures and successes we have had, both in private and public sectors, in the management of our diversity. Schuck ultimately seeks to persuade us of a conclusion evident from the subtitle of his book — that reposing in government the power to manage diversity is unwise. The state, he contends, has been a notoriously inefficient and unprincipled administrator of diversity. More objectionable, Schuck argues, is that government tends to regulate diversity through means that are fundamentally inconsistent with bedrock liberal values, as he conceives them, because it distributes state benefits on the basis of classifications rather than individual merit. To correct that flaw, Schuck proposes alternative schemes of diversity management in several policy arenas. Schuck’s proposals will strike some readers as unduly trusting of private institutions and overly cynical about government’s track record, but his book is nevertheless a thoughtful, probing, and fair-minded exploration of diversity issues. Schuck begins with the observation that America is unique in celebrating diversity as not merely a means to other ends, but as a goal in and of itself, as having normative content. “In the pantheon of unquestioned goods, diversity is right up there with progress, motherhood, and apple pie.” But, Schuck laments, public discourse about diversity is often superficial and imprecise. To rectify that, he examines the concept of diversity from many angles — why we have the demographic variety we do; the ways we classify each other; how we ascribe to each other certain affinities arising from those classifications, rightly and wrongly; what we mean by the term diversity in different contexts; and how diversity can contribute to our welfare or detract from it (by, for example, making communication more awkward and agreement on common purposes more difficult). Schuck reminds us how deep the nation’s roots as a heterogeneous culture are, for reasons both admirable (a tradition of accepting immigrants) and ignominious (the importation of slaves and subjugation of native peoples). The heart of the book, however, is Schuck’s assessment of the government’s efforts to manage diversity in four policy areas: immigration, affirmative action, residential desegregation and public housing policy, and regulation of religious freedom. In each of these areas, he suggests approaches that he believes will more effectively serve legitimate state diversity interests and strike a better balance between competing group and individual values. For each of his four subjects, Schuck recaps historical developments and current tensions, then concentrates on specific programs, legal standards, regulatory actions, or governmental policies to assess results and draw conclusions. In his review of immigration matters, he zeroes in on laws mandating the primacy of English, bilingual education policy, and “diversity visas” authorized under the Immigration Act of 1990. Schuck concludes that bilingual education laws have usually been an unacceptable “instrument of government-promoted cultural maintenance.” A better route than coercive state action, he advocates, is a voucher concept that, in varied forms, recurs as a recommendation throughout the book. The state should give vouchers to students and parents with low English proficiency so they can purchase the English-language training services they believe will be best-suited to their needs, and thus strike their own balance between monolingualism and multiculturalism. Schuck maintains that government-sponsored vouchers, which fund the exercise of private choices, insulate the state from making classification-based decisions, but still encourage diversity. ASSESSING AFFIRMATIVE ACTION Schuck’s chapter on affirmative action is perhaps the book’s most searching discussion. His focus is not the constitutionality of affirmative action programs. Rather, he assesses whether such programs serve their intended purposes and are consistent with liberal values. Schuck comprehensively reviews the rationales offered for affirmative action, largely in the context of education, but also in government contracting, Federal Communications Commission licensing, and elsewhere. He critiques the effectiveness of preference programs in serving those rationales and considers whether further tinkering (“mend it, don’t end it”) will fix the flaws he detects. Schuck asks tough questions about many of the premises on which affirmative action is based — for example, that persons of the same race are more likely to share common experiences or views; that affirmative action usually helps those who would not otherwise have access to government benefits and only marginally affects members of the majority; that resegregation is likely if such programs are terminated; and that the traditional ethno-racial classifications are still legitimate in the face of increasing diversity within minority groups. Although Schuck concedes that some of the justifications for governmental affirmative action models have merit, he concludes that they inevitably ” ‘essentialize’ race in a way that utterly contradicts liberal, egalitarian, scientific, and religious values.” But Schuck would permit affirmative action in private institutions if they satisfy two conditions: full disclosure of the preferences to be used in allocating benefits or opportunities, and strict compliance with the nondiscrimination laws that safeguard constitutionally protected classes. Nongovernmental affirmative action under these restrictions furthers the principle of individual autonomy by preserving “a limited space for private, voluntary preferences,” but ensures that those preferences cannot rise to impermissible discrimination. Yet Schuck’s reasoning rests on debatable premises. For example, is there an elemental difference between the government affirmatively demonstrating partiality based on classifications and simply guaranteeing that private institutions have the room to do so? Will the majority provide genuine opportunities to minorities and serve the interest of diversity, especially if government sanctions exist only for verifiable discrimination? Note also that Schuck would assign to the government the role of nondiscrimination enforcement. Yet he would shield from discrimination in the private sphere only those persons who fall into classifications constitutionally protected from bias. Distinctions made on the basis of disability, sexual orientation, age, and certain other nonmerit grounds would not be proscribed, so persons falling into those classifications will have limited ability to participate meaningfully in the “diversity marketplace” Schuck envisions. In addition, Schuck does not address a contradiction in his positions. If it is true that the racial, ethnic, and other classifications through which preferences have been applied are fatally imprecise and simplistic, why then are those classifications nonetheless adequate for defining which persons are protected by nondiscrimination laws? Conversely, if they are sufficient for nondiscrimination enforcement, why are they too illusory to serve as a foundation for preferences? Schuck’s chapter on residential housing issues concentrates on three of the most significant litigations over public housing policy in recent decades: the Township of Mount Laurel cases in New Jersey, which led to a state regulatory program aimed at promoting low-income housing in all towns; United States v. Yonkers, which involved years of judicial micromanagement of local housing policy; and Hills v. Gautreaux in Illinois, which gave rise to a voucher program that enabled low-income residents to move into previously unaffordable, segregated neighborhoods. Schuck views only the last of these cases as having a favorable outcome. Government compulsion of residential mobility has generally failed, he concludes. The state’s proper and more efficient role is to fund the exercise of private choices through “voucher-type mobility remedies” and to police the market through nondiscrimination laws. ‘CHARITABLE CHOICES’ Schuck’s final topic is religion and the state. Although he explores the diverse religious practices extant in this country and the tensions between mainstream and marginal religions, the bulk of this chapter is Schuck’s critique of establishment clause and free exercise clause jurisprudence. Not surprisingly, he argues that the courts have construed the Constitution in ways that unduly constrain private choices to pursue religious interests. He proposes that faith-based organizations should play an essential role in performing some secular public purposes, but would support them by funneling government funds to the clients of those organizations, who can exercise “charitable choices” over where to purchase their social service needs. Similarly, Schuck supports publicly funded voucher programs that allow parents to educate their children in private schools that meet certain accountability requirements. The overarching conclusion of Diversity in America, therefore, is that government should serve two purposes in managing diversity: to “protect existing diversities against invidious discrimination” and to “clear a path for the emergence of other, privately generated diversities.” In essence, Schuck has confidence that a “free market” in diversity interests, funded in part by minorities with government-sponsored buying power, will more efficiently encourage diversity than the state has. One need not agree with that philosophy to find this an insightful book. In the analysis that leads Schuck to his conclusions, he discusses with intelligence and nuance many complex issues. Patrick McGlone is an attorney with ULLICO Inc. in Washington, D.C.

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