Timing matters a good deal in the world of legal scholarship. Scholars who address constitutional issues, for example, frequently write with an eye to an audience of nine individuals—the chief justice and eight associate justices of the U.S. Supreme Court. It is no mystery, then, that one of the most comprehensive discussions of diversity in American life arrived on bookstore shelves on the eve of decisions in two of the most important cases concerning affirmative action in the previous quarter century. In the pair of cases, Grutter v. Bollinger (2003) and Gratz v. Bollinger(2003), the Supreme Court addressed admissions policies at the University of Michigan that took the race of applicants into account as a means of promoting educational diversity. These cases revisited the uneasy peace the Court made with affirmative action policies in higher education twenty-five years earlier in Regents of the University of California v. Bakke (1978). There, a sharply divided Court ruled that the use of racial quotas in the admissions processes of colleges and universities was unconstitutional but that the consideration of race as one factor among others designed to foster a diverse student body was acceptable.
In the wake of the Bakke decision, the quest for diversity became a prominent feature in many organs of American public life, most notably colleges and universities. Proponents of diversity insisted that various institutions should “look like America”—that is, reflect the kind of racial diversity that exists in the United States. Often, the celebration of diversity proceeded at least partially from a desire to remedy past and present instances of discrimination against racial minorities.
Diversity in America adds breadth to standard debates about affirmative action. It does so by considering not only diversity in higher education but also the ethnic and cultural diversity fueled by immigration, the racial and social diversity often frustrated by patterns of residential housing, and the religious diversity implicated in the United States’ pursuit of free exercise of religion. To all these aspects of diversity in the United States, Schuck brings a common inquiry: How does government attempt to manage diversity in these various contexts, and how successful is it in these attempts? By “managing” diversity, the author has in mind uses of the law “to protect, import, define, certify, subsidize, mandate, [and] exploit” diversity. Insisting in the first place that diversity is an important American value, “glorified in American ideals and practices,” Schuck concludes generally that government is least effective when it attempts to manage diversity directly, more effective when it supports and leaves room for private efforts to promote diversity.
The reality of ethnic diversity in America owes much to generous immigration provisions dating especially from 1965. Diversity in America focuses significant attention on the ways in which American law has attempted to manage the diversity associated with immigration, emphasizing in particular bilingual education and other language policies. Venturing into the controversial territory of debates concerning multiculturalism, Schuck states a position respectful of the cultural differences that exist within the United States but unambiguously hostile to government efforts to maintain these differences. “Cultural maintenance,” as he describes it, is not an appropriate public goal. Thus, Schuck opposes bilingual education programs designed to shield immigrants from cultural assimilation or to preserve their indigenous cultures. In the main, government should restrict itself to the work of protecting constitutionally protected rights of minority cultures, such as freedom of speech and freedom of religion. Otherwise, according to the author, it should refrain from more overt attempts to sponsor the preservation of minority cultures.
In his discussion of affirmative action policies, Schuck argues that “the ethno-racial categories on which affirmative action relies are losing whatever coherence and normative appeal they may once have had.” Nevertheless, he ultimately advances a nuanced proposal that would permit certain private institutions and associations (such as private universities) to engage in affirmative action practices, while prohibiting public institutions and agencies from doing so. Schuck’s skepticism toward the legitimacy of official race-based policies arises out of his insistence that standard forms of ethno-racial identity are continually being subverted by social realities such as immigration and intermarriage practices. The author couples this insistence with an articulation of the standard pros and cons of affirmative action policies, siding ultimately with the...
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