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Doubts About Diversity

I am skeptical that any of us embraces “diversity” as much as we might believe.

We claim to be multicultural, but our conception has limits. These lines become apparent in any dispute involving vaguely liberal norms on the one hand, and a truly different way of life on the other hand. The easiest example to offer has reached the Supreme Court repeatedly and recently: faced with the dilemma of religious communities that reject anti-discrimination standards based on their faith, and the protection of persons toward whom they would express bias based on identity, we must make a decision which trumps which.

Our rights conflict. That is understandable. As individuals and society, we are capable of contradiction; it is the human condition.

There also are global versions of the same choice. A government that does not follow Western, specifically American, concepts of democracy, whether expressly or not, presents a challenge. The problem is there are not principles that can be imagined by humans without some sort of origin in a specific set of traditions. Yet the incompatibility of customs of one place with another place is real. The discrepancy cannot be reconciled by abstract reasoning.

A sign in a storefront that declares “all are welcomed” is as sincere as it must be false. The list of who is welcomed excludes a group that only its members are aware of.

“All are welcomed” does not accept those who reject that very proposition. There are people, however, who are decent, kind and nice, at least toward those who are like them, who are not willing to embrace everyone. They may be intolerant about other religions or those in interracial or same-sex relationships (or those who would compare interracial to same-sex relationships), and so on. A strict vegan who would like to convert carnivores cannot also be a multiculturalist. She or he is against the consumption of meat, which might extend to the killing of animals, which in turn might encompass the possession of firearms.

“Liberals” can be faulted. Not liberals in the crude, partisan sense, but liberals who are self-assured that simple recognition of individual rights will take care of injustice. They are hypocrites, since they cannot help but be so. They are counting on consistency. If individual rights all aligned in a single direction, then rights could determine case outcomes. But even if we all agreed – which it is clear many do not – on rights, these rights point in multiple directions. They cannot be relied upon as a guide.

The more rights, the more complex the situation. That is why rules are arranged in a hierarchy. In addition to rules, we must have “meta-rules,” meaning rules about rules. “Choice of law” rules are such meta-rules. The infamous Dred Scott opinion of 1857, rendering African-Americans as non-citizens and preferring the law of a slave state to the law of a free state, was, in technical terms, about which jurisdiction’s law would be respected. Appellate authority prevails over trial court decisions; federal law can pre-empt state law; and the professional responsibility duty of maintaining an attorney-client confidence defeats the obligation to report misconduct if another attorney consults you about ethics.

All of the above is complicated by the need for advocacy. No matter how thoughtful an argument appears to those advancing it, the content is not the same to the audience receiving it. What seems considerate and fair to the speaker can be much less than that to the listener. Communications among us are affected by the messenger and the relationships among the parties involved.

Even those who are the intended beneficiaries of a change imposed from the outside may resist it, because of the insensitivity of the proposal on the inside and the symbolism of the two sides. Criticism about gender equality may be interpreted as criticism about ethnic practices. What could have been persuasive is overwhelmed by backlash.

“Diversity” as a legal doctrine does not function as expected. It was introduced as an alternative justification for the consideration of race in college admissions, i.e., affirmative action. The former, backward-looking defense was to remedy the wrongs of the past. That was increasingly untenable, as racial segregation ceased to be the norm and it became less straightforward to document the present effects of past practices. Thus, a new, forward-looking justification was offered about how to improve for the future. “Diversity” was suggested as a “compelling state interest,” especially appropriate for a representative democracy. In the landmark University of Michigan cases, Justice Sandra Day O’Connor adopted it.

The trouble is that virtually everyone asserts she is diverse in some manner, and, indeed she is, even identical twins who have the experience of that bond. So it becomes possible for a school with hardly any native-born African-Americans nonetheless to promote its campus as diverse. The expansion of diversity was not anticipated. Even Whites invoke diversity on their own behalf.

I am not sure what, if anything, can be done to resolve the issues raised by diversity. It might be impossible. In 1931, a mathematician-philosopher named Kurt Godel identified the “incompleteness” of all systems of logic. He proved that a formal system could not prove itself, however elegant its axioms — its foundations depend on assumptions. Perhaps the same is true of the law of diversity. But there can be hope in the ongoing process of dialogue about diversity.

Frank H. Wu is a Distinguished Professor at University of California Hastings College of the Law, where he formerly served as chancellor and dean.

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