The Surpreme Court has now ruled by 5-4 that school districts cannot use race as a means of determining placement to maintain integrated class rooms. Unsurprisingly, the four of the Court's “Conservative” wing (Scalia, Thomas, Roberts, and Alito) believe that any race conscious consideration by government is intrinsically harmful and would overturn the 2003 decision in Grutter v. Bollinger that upheld the use of race as one of several factors to promote diversity in higher education. (Technically, Roberts only goes so far as narrowing Grutter's holding to higher education, but it amounts to the same thing.) Kennedy, the eternal swing vote, still affirms that diversity (including racial and gender diversity) is an important value that the government can support, without really indicating how the school systems can do so.

Reflections on the fallacy of “color blindness,” and how a completely unrelated folksong by the Canadian folksinger Heather Dale makes the point about the need for diversity and role models more eloquently than I ever could, below...

Unlike many others, I do not attribute the decision of the majority to outright racism. It is the far more subtle and pernicious problem of refusal/inability to understand a life outside your own. Roberts, et al. live in a world where anything is achievable, merit (and blind fortune) are the ultimate arbiters of one's fate, and government efforts to recognize disparties and alter them inevitably create a worse result for some individual somewhere. That the failure to take action has disparate impact on some more than others, or weakens us as a society overall, is regarded as at best misguided and at worst elitist. Either way, these five believe, it is dangerous folly that threatens true eqaulity for the law to engage in “social engineering.”

This is in particular raised with regard to race. Whatever value may lie in trying to equalize things between “neutral” factors such as rural v. urban, or wealthy v. poor (permissible criteria for educational diversity), these five believe deeply that categorization by race for purposes of achieving visual diversity is pernicious and self-defeating. They argue that it encourages the stereotype that all peolle of a particular race see things in a specific way way or have a specific perspective. “How racist,” says the majority. “How much better if we all just pretended color did not matter. Wouldn't that be a far more equal world?”

There are many reasons why I answer the above question “no.” But for the moment, I will stick to one that the majority in Grutter discussed. In determining that Michigan Law School's goal of achieving a racially diverse student body was permissible, the Grutter majority wrote:

In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity. All members of our heterogeneous society must have confidence in the openness and integrity of the educational institutions that provide this training. As we have recognized, law schools “cannot be effective in isolation from the individuals and institutions with which the law interacts.” See Sweatt v. Painter, supra, at 634, 70 S.Ct. 848. (emphasis added)

An often under appreciated fact is how much we look for people like ourselves to help us define what we can and cannot do. Yes, there are the trailblazers, the contrarians, the celebrated few who feel compelled for whatever reason to buck tradition, break down stereotype, and prove that he/she can do what no man/woman/white person/black person/whatever person traditionally doesn't/does. Our movies and television show are a never ending celebration of the bravery and commitment of the maverick who does what he/she isn't supposed to do and ultimately teaches us that what matters is what's inside, not what's outside. Whether it's the poor son of an appalcian coal miner being the first in his family to go to college, the first woman proving she can “cut it” in a traditionally man's profession, the African American determined to show that he can be succesfull in the all white corporate boardroom, we love to celebrate the crusader whose personal bravery, sacrifice and determination ultimately triumph and open doors for the rest of us.

True enough. But 99% of the rest of us follow the path of expectation and look to see people like us when we chose a career or social setting or even a hobby. There's a reason for the cliche of “___? Is that really something for a nice Jewish boy/girl?” Human beings are, by and large, social creatures who seek the comfort of confirmation that we are behaving in a socially acceptable way. That includes seeing people like yourself in situations you are thinking about trying.

When you're in the majority, it is trivially easy to forget this, because you see people like yourself everywhere. Please note that the term “majority” is slippery and rather hard to define. Ask Evangelicals what they think of TV portrayals of religious characters, for instance, and you will understand why so many Southern Conservatives believe in the evil Liberal Hollywood conspiracy. Ask stay at home Dads who have tried to join “Mother and Me” groups about their experiences. I myself wince whenever I watch “Magic School Bus” and see the wonderfully diverse crowd of children, which includes the hyper-intelligent physically cowardly Jew-boy and his greedy, grasping uber competitive Jewish female cousin. Because writers who wouldn't dream of making the Italian kid's father a mafiosa don't have a problem writing Jewish charaters that mirror the likes of Woody Allen and Northern Exposure's Joel Fleischman.

So visual representation of diversity matters a lot, both to people outside the mainstream aspiring to different things, and to whoever is the majority of the moment to come into contact with the “other”. Because, absent real world contact with people different from us, human beings do what human beings generally do — don't think about what's not in front of us and rely on very surface generalizations (which, with regard to our fellow human beings, we call “stereotypes).

Which brings me, at last, to Canadian folk singer Heather Dale and her song ”One of Us.“ (Reproduced below with permission, sound clip and other info available here.) Like me, Heather also participates in the Society for Creative Anachronism, a living history group that has its own form of tournament fighting. The SCA is a modern organization and one not overly devoted to historical accuracy (the unofficial slogan of the org is ”The Middle Ages As They Should Have Been“ or ”Middle Ages: The Good Stuff Version.“ This is why the SCA has rather a bad reputation in academic circles, but it still provides a lot of educational value and fun). So tournament fighting is open to anyone, male or female. Nevertheless, as Heather writes in her song, men dominate the tourney sport. One reason, I suppose, is that more men than women find it attractive to strap on heavy armor and hit each other real hard with wooden sticks in the blazing sun.

I love Heather's song because it maes the point about the need for visual diversity and the importance of role models beautifully, without getting all angry and therefore puting people on the defenisve. And the grand scheme of thing, participation in a sport as part of a broader hobby is minor. But it is precisely by focusing on these ”little things“ that we can achieve greater understanding of the bigger issues where the complexity and passion make it hard to pick the pieces apart. The weightier questions of social justice that naturally append to the diversity debate in education and elsewhere make it much harder to capture the simple point that most people look for people like themselves when deciding what to do with their lives and what is the scope of the achievable. Whether it is a woman deciding if she wants to try fake medieval tournaments, or a Latino teenager chosing a career, or an Orthodox Jewish family deciding where to live, we look for examples of others ”like us“ — and their presence or absences weighs in our calculus of how we direct our lives.

So read the song below, check out the Heather's website, and buy her music (since I happent o really love it and think Heather is cool.) And after the next time you debate ”diversity,“ whether it perpetuates stereotypes or ”punishes white people“ or compensates for past and current injustice, listen to ”one of us“ and consider the value of visual diversity of all kinds in its own right.

And to Heather and all my brothers and sisters in the progressive public policy shieldwall, I lift my sword in salute.

Stay tuned . . . .
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Written and performed by Heather Dale, from her CD ”The Hidden Path“.
Visit www.HeatherDale.com for sound clips and info.
(copyright Amphisbaena Music 1999)


Before I got to fighting, or when fighting got to me,
I looked to find examples on the field of chivalry.
I saw mighty arms, much stronger than my arms would ever be
And I thought perhaps the field was not for me.

But I stayed and watched the fighting 'til one figure stood apart
In armour newly fashioned, and a helm more pot than art,
But each blow was thrown with honour and a lightness of the heart
So I took the step that soon became a start.

(CHORUS:)
She was not the biggest fighter, nor one to make a fuss,
But I remember being proud that she was one of us.
We might never stand together in the shieldwall side by side,
But because of her I lift my sword with pride.

She was ladylike and lively, not ”the type you would expect"
With a braver heart than many and a slot-shot to respect.
I guess she'd once decided this was where she'd like to be
And I thought, if she could do it, why not me?

She was not ....

So now as I gather armour, bits and pieces here and there,
I think about examples: how you act, and what you dare.
'Cause you never know who's watching or how far the story goes
And where'er that Lady is, I hope she knows.

'Cause she was not .....

We might never stand together in the shieldwall side by side,
But because of her I lift my sword with pride.