Diversity Part II

Some further thoughts on diversity, prompted by a reader's response (alright, he was really the only one, so no prizes for guessing who it was).

Race and diversity. There is far more to diversity than race. But we are visual creatures, and make many judgments, both conscious and subconscious, on the basis of what we see. What stands in opposition to diversity, is the "us-them dichotomy." What sociologists like to call the problem of "the other," and what I think Jesus would say is our failure to understand who is our neighbour, and failure to obey the command to love our neighbours as ourselves. We naturally have preferences for people like us and naturally engage in discrimination against people not like us. We seek out people like us, and in some sort of collective self-preservation instinct, band together against "the others." Some argue that this inherent bias will always exist; all that we can do is to consciously counter-balance it.

Someone's skin colour (in honour of a cross-border contribution, I'll be adopting the Queen's English for this post) is one of the most obvious visual cues available when you meet someone, one of the easiest ways to figure out who is "us" and who is "them," "the other." Most of us naturally rely on colour-keyed heuristics when initially judging someone. These judgments can be wrong, and as we get to know someone, our judgments are revised (hopefully) in the light of new evidence. Penultimately (because I have hope this will not always be so), race matters because we make "us-them" distinctions on the basis of race.

This in turn influences our viewpoints (I prefer this to ideology - there is more to a person than just their ideology). Because so much of our world works on the basis of visual heuristics (including skin colour), our interactions with others are necessarily influenced by their visually-based heuristics. And our interactions with them in turn influence our viewpoints. E.g. it is more likely than not that growing up Chinese in a majority Chinese society has given me a different outlook on the world, than if I grew up belonging to the only Chinese family in the city. (Note I say more likely than not. There are exceptions, of course, but they do not invalidate the empirical truth of the general). So if our purpose in seeking diversity is to promote a diversity of viewpoints and ideas (note that I don't think this should be the sole motivation), then race matters because people of a particular race tend to have similar experiences (more likely than not) that create similar points-of-view, due to their growing up in a world that operates largely on visually-based heuristics. It would be a different world if we were blind and unable to distinguish skin colour or differences in biological features. We probably would not discriminate on the basis of race then (but we'd probably seize upon some other differentiating characteristic).

Achievement, affirmative action, and merit. Of course minorities can achieve as much as the majority; if minorities were not as inherently capable as the majority, then the majority would need to patriarchally take care of them (noblesse oblige, as the French used to call it). I hope we've moved on from such a blatantly racist (even if possibly well-intentioned) take on racial differences. And yes, minorities should be grateful to those who have gone before us and fought and worked extremely hard, to prove that we are not inferior and can achieve just as much, that we are children of God just as much as the next white man.

And certainly, hard work is always required. But there was a time that no matter how hard you worked, there was a ceiling imposed on you because of the colour of your skin, whether explicitly or implicitly, directly or indirectly. I would argue that those ceilings still remain for all sorts of minorities (including women). I am not against working hard, but I am against minorities having to work harder than the majority. I don't believe that life is meant to be easy, and life is never fair. But that doesn't mean that it shouldn't be, especially when it comes to how we treat each other. It is a deontological necessity that we treat all people fairly, and it is unfair for minorities to have to work harder than the majority. This was what motivated the Civil Rights struggles and the landmark social changes that those activists wrought upon our cultural landscape. If achievement is nothing but a matter of working hard, and the architecture of our institutions and systems does nothing to impede the achievement of minorities, then there would have been no need for the Civil Rights struggle. Less than a hundred years ago, I could not have been a citizen of the United States, simply because of the colour of my skin. If that isn't an institutional inequity, I'm not sure what is.

One of the key questions behind affirmative action and positive action in favour of diversity, is if there is equal opportunity for all, or if systemic and institutional bias still exists. I firmly believe in the latter.

Affirmative action (AA) or like programs are often construed as lowering standards for minorities because they can't meet the ostensibly merit-based criteria that have been set (by the majority). But this view of AA makes the assumption that the standards are fair and race-neutral to begin with, and that they measure merit objectively. These assumptions are certainly questionable. Racism is usually NOT conscious. I highly doubt that the people who craft LSAT questions deliberately set out to disadvantage minorities. But I'm willing to wager with you that most of them belong to the majority. Their general cultural experience has predisposed them to identify certain forms of knowledge as more meritorious than others.

I remain uncertain and perhaps even skeptical, of our ever devising a measure of merit that does not advantage or disadvantage some groups because of racial or ethnic difference. Furthermore any monolithic and homogeneous measure of merit that is universally or even largely accepted by society, will impose great pressure upon minorities to conform to the pre-established (presumably by the majority) definition of merit. In other words, "To be successful, you have to be like us." I think that no matter how our metric for merit evolves, we must always be aware of its limitations, and the value of perspectives and strengths not encompassed by our metric.

At the same time, I recognize the oddity of AA: we select out presumably qualified members of the majority based on the fact that they are the wrong race, thus engaging in race-based (and critics would say racist) decision-making, the very thing that we are supposed to be fighting against. I will admit that I would rather not have AA. Unfortunately, no one has stepped forward with realistic and workable alternatives to rectify the unacceptable status quo. The hope of AA is to effectively force diversity upon as many levels of the social strata as possible, chiefly education and employment, in the hope that the opportunities given to minorities will translate into greater socio-economic advancement and greater integration of society's different segments. I don't know if it will work. It certainly cannot work solo; it must operate in tandem with concerted and deliberate efforts on a variety of other levels through a panoply of other media, to break down the use of race-based heuristics. My fear is that people will not learn who are their neighbours (and to love them), and all the AA in the world can only do so much to change that.

Making whites feel guilty about their success. They should. We all should. Is our success something that we earned for ourselves with clean hands at no expense to others? The decimation of First Peoples as a result of the conquest and colonialization of the Americas certainly argues against that. The slavery of black people and the indenture of "Orientals" in the history of the United States is further evidence that our present-day success was not achieved righteously. Of course, the chains of causation can be tied up by invoking proximate causation. But proximate cause is a legal fiction invented to limit liability. I think the chains of causation for the success of present-day America can indeed be clearly linked to the oppression of minorities.

But I am not interested in guilt, and I daresay I speak for many people who have been the subject of more injustice than I. Guilt is useless unless it galvanizes us to repentance, by word and deed. Keep the guilt and give me the justice, give me the change, give me the breaking down of walls and the reconciliation of peoples. No, better yet, express the guilt just as those who have been oppressed express their forgiveness and seek forgiveness in return. All of us have unclean hands, and all stand in need of forgiveness from each other.

Speaking to those who claim or seek to follow Jesus Christ. Our blessings are not for us to enjoy. Rather, they are meant to be shared. For some strange reason, American theology has taken a decidedly individualistic bent that is unsupported by the weight of Scripture. No one talks about communal sins, no one talks about interceding for the sins of others or assuming communal responsibility. Yet that is the clear pattern in Scripture, beginning as far back as Genesis. If you think that Jesus only came to save people, and not societies, cultures, nations... then your God is too small and you insult Jesus and the full meaning of the Cross. From the very beginning, we have been our "brother's keeper," made responsible for each other. A theology of pure individualized responsibility cuts against the clearly established grain of Scripture, and somehow I doubt that God will look very favorably upon a "it wasn't my business" defense.

As applied to discrimination and diversity: when Paul wrote that in Christ there was neither Jew nor Greek, slave nor free; when Peter received his vision wherein God told him not to call anything unclean that God had made clean; and most of all, when Jesus by his words and deeds demonstrated the equal worth of all persons, they gave us no excuse to tolerate discrimination.

Conclusion (for now). All of us need each other. I know there are some in the majority who resent the politically correct push for diversity, and see it as a bunch of liberal whack-jobs undermining the greatness of our nation, or coddling lazy whiners who just can't make the grade. I respectfully disagree. Diversity isn't just for the minorities today; it's also for the majority today who will become the minority tomorrow. Within my lifetime, I full expect to see white people become a racial minority in the United States. I think it's highly likely that one day, white people will be pointing to their under-representation and clamouring for AA as well. It's even possible that they will be discriminated against (I think it's overly idealistic to believe that minorities won't discriminate) by the majority. We need to emphasize diversity now, for the benefit of everyone, not just today but also in the years to come.

If you actually read all that, I'm very impressed and grateful for your attention. Please share your thoughts. I think a rational, well-informed, and civil dialogue is critical if we are going to do something about the status quo.

S.H.A.R.E. J.D.

Dear blog, it's been a long time, sorry I've neglected you. Please blame (in no particular order) Law Review, Deals, Federal Income Tax, Research Assistant-ism, one gazillion other things, for alienation of affection. But I'm back. I definitely thought about posting further inanity on your pages, but the exigencies of the moment always overrided the urge to write and the importance of what I had to say. Until today.

Today was the inaugural meeting of S.H.A.R.E. J.D. at UCLA School of Law. Students Helping Assure Racial Equity, Justice, & Diversity, a coalition of students and student groups who are alarmed at the increasing homogeneity of our law school and the precipitous decline in racial diversity, and united to try and convince the law school administration that there is a problem and it needs to be addressed.

Back in January, I posted some thoughts on diversity. Since then, it's been pointed out to me that the conventional understanding of merit is itself not race-neutral, and reflects the imprint of decades, if not centuries, of racial and cultural bias. Since I used to teach the SAT and GRE, and since I took the LSAT, you'd think I knew this, right? (And I did, just that I consider those standardized tests flawed enough in other ways that I'm uncertain if they're truly indicative of merit, even entirely apart from racial bias.)

But let's make some statistics public. The Class of 2008 at the UCLA School of Law has only 6 black students. The administration counts 9, including 3 students who are enrolled in joint degree programs but not currently taking classes in the law school (from what I've heard, the administration also counts those 3 students as members of the incoming Class of 2009). We currently have fewer black students than we did in 1969. The racial make-up of the law school doesn't reflect the demographics of Los Angeles, or California, or the United States.

What troubles me more than the depressing statistical evidence, is the apathy or ambivalence of the administration. There is a reluctance to admit the existence of a problem (and everyone who's even remotely familiar with any twelve-step program knows the first step is always to...). Even when the administration does admit that there might be cause for some concern, it is quick to defend its actions and assert that it is both doing enough and doing all it can to promote diversity. However, the fact that it is not the most diverse or even close to being the most diverse public law school in California (Boalt, from what I hear), must surely cause us to reconsider that claim.

S.H.A.R.E. J.D. has been formed to address the implicit segregation at the UCLA School of Law. One of the students tonight made a good point: Giving minorities a seat at the table is only the beginning. A seat won't do you much good if no one else at the table is willing to acknowledge or engage your difference, and you're expected to be just like them. The point of diversity is not assimilation. There are two ways to mix paint: You can mix all the colors together on one palette and produce a bland mush, or you can juxtapose the colors to produce vibrance, contrast, art. Desegregation and diversity should not be like the first (the mush) but rather the second - the art.

There are still many issues to consider, and a lot of intense discussion and debate to be had; I am not oblivious, unmindful, or dismissive of the concerns of those who oppose affirmative action and what they might consider the negative implications of an emphasis on diversity. But the status quo is simply unacceptable, and the world seems to be increasingly polarized along both racial and religious lines in both the "developed" world and the "developing" one. To remain silent or passive is itself a wrong.

what the world needs now

Don't tell the Environmental Law Program (do we have an Environmental Law Program?), but after reading an editorial at The Onion, I think we really do need more nuclear reactors to solve the world's problems.

Bruce Banner, where are you? Oh, and while I got most of the superhero references in the editorial, I did miss some. Anyone out there who can name them all beyond a reasonable doubt?