Making All the Difference

Inclusion, Exclusion, and American Law

Martha Minow

• Publisher: Cornell University Press
• Year: 2016
• ISBN:
  9781501705090
• Topic: Jura
• Subtopic: Rechtswissenschaft

Should a court order medical treatment for a severely disabled newborn in the face of the parents' refusal to authorize it? How does the law apply to a neighborhood that objects to a group home for developmentally disabled people? Does equality mean treating everyone the same, even if such treatment affects some people adversely? Does a state requirement of employee maternity leave serve or violate the commitment to gender equality?Martha Minow takes a hard look at the way our legal system functions in dealing with people on the basis of race, gender, age, ethnicity, religion, and disability. Minow confronts a variety of dilemmas of difference resulting from contradictory legal strategies—strategies that attempt to correct inequalities by sometimes recognizing and sometimes ignoring differences. Exploring the historical sources of ideas about difference, she offers challenging alternative ways of conceiving of traits that legal and social institutions have come to regard as "different." She argues, in effect, for a constructed jurisprudence based on the ability to recognize and work with perceptible forms of difference.Minow is passionately interested in the people—"different" people—whose lives are regularly (mis)shaped and (mis)directed by the legal system's ways of handling them. Drawing on literary and feminist theories and the insights of anthropology and social history, she identifies the unstated assumptions that tend to regenerate discrimination through the very reforms that are supposed to eliminate it. Education for handicapped children, conflicts between job and family responsibilities, bilingual education, Native American land claims—these are among the concrete problems she discusses from a fresh angle of vision.Minow firmly rejects the prevailing conception of the self that she believes underlies legal doctrine—a self seen as either separate and autonomous, or else disabled and incompetent in some way. In contrast, she regards the self as being realized through connection, capable of shaping an identity only in relationship to other people. She shifts the focus for problem solving from the "different" person to the relationships that construct that difference, and she proposes an analysis that can turn "difference" from a basis of stigma and a rationale for unequal treatment into a point of human connection. "The meanings of many differences can change when people locate and revise their relationships to difference, " she asserts. "The student in a wheelchair becomes less different when the building designed without him in mind is altered to permit his access." Her book evaluates contemporary legal theories and reformulates legal rights for women, children, persons with disabilities, and others historically identified as different.Here is a powerful voice for change, speaking to issues that permeate our daily lives and form a central part of the work of law. By illuminating the many ways in which people differ from one another, this book shows how lawyers, political theorist, teachers, parents, students—every one of us—can make all the difference,

PART I

DILEMMAS OF DIFFERENCE

CHAPTER 1

The Dilemma of Difference

Now suddenly she was Somebody, and as imprisoned in her difference as she had been in anonymity.

—Tillie Olsen, “I Stand Here Ironing”

To gain the word
to describe the loss
I risk losing everything.

—Cherríe Moraga, This Bridge Called My Back

All the teachers in the San Francisco public schools during the 1960s taught their classes in English, just as they always had. But by the end of the decade a group of parents sought out a lawyer to object that this instruction deprived their children of the chance for an equal education. Their children, who spoke primarily Chinese, were falling far behind in classes taught only in English. The parents pushed the courts to consider whether according the same treatment to people who differ—to the students who speak English and those who speak Chinese—violates commitments to equality.

Ultimately, the Supreme Court of the United States heard the case. In 1974 the Court concluded that “the Chinese-speaking minority receives less benefits than the English-speaking majority” from the schools and that therefore the school system “denies them a meaningful opportunity to participate in the educational program.”1 The Court directed the school system to take affirmative steps to rectify the language deficiency.2 “Special,” not similar, treatment was the legal solution to the question of equality. The decision encouraged bilingual education programs that separated the students lacking English proficiency from their peers for part of the school day or provided months or even years of specialized schooling.

Also during the 1970s, parents and lawyers challenged traditional educational practices for children with physical or mental disabilities, claiming that those children were being denied equal treatment. Here, though, the challengers objected to the exclusion of disabled children from the public school classrooms attended by their peers. Borrowing rhetoric and legal analysis from the crusade for racial desegregation, advocates for the rights of handicapped students urged their integration into mainstream classrooms, along with services to facilitate such programs.3

Perhaps ironically, then, educational policymakers and law reformers during the 1970s and 1980s switched allegiance to bilingual programs that pull students at least part time from the mainstream classroom, while simultaneously sponsoring special education programs that integrate handicapped students into either the mainstream classroom or the “least restrictive alternative.” The apparent contrast between these two responses to students who differ from their peers, however, suggests a deeper similarity. Schools, parents, and legal officials confront in both contexts the difficult task of remedying inequality. With both bilingual and special education, schools struggle to deal with children defined as “different” without stigmatizing them. Both programs raise the same question: when does treating people differently emphasize their differences and stigmatize or hinder them on that basis? and when does treating people the same become insensitive to their difference and likely to stigmatize or hinder them on that basis?

I call this question “the dilemma of difference.” The stigma of difference may be recreated both by ignoring and by focusing on it. Decisions about education, employment, benefits, and other opportunities in society should not turn on an individual’s ethnicity, disability, race, gender, religion, or membership in any other group about which some have deprecating or hostile attitudes. Yet refusing to acknowledge these differences may make them continue to matter in a world constructed with some groups, but not others, in mind. The problems of inequality can be exacerbated both by treating members of minority groups the same as members of the majority and by treating the two groups differently.

The dilemma of difference may be posed as a choice between integration and separation, as a choice between similar treatment and special treatment, or as a choice between neutrality and accommodation. Governmental neutrality may be the best way to assure equality, yet governmental neutrality may also freeze in place the past consequences of differences. Do the public schools fulfill their obligation to provide equal opportunities by including all students in the same integrated classroom, or by offering some students special programs tailored to their needs? Special needs arise from “differences” beyond language proficiency and physical or mental disability. Religious differences also raise questions of same versus different treatment. Students who belong to religious minorities may seek exemption from courses in sex education or other subjects that conflict with their religious teachings. Religiously observant students may ask to use school time and facilities to engage in religious activities, just as other students engage in other extracurricular activities. But the legal obligation of neutrality is explicit here, in a polity committed to separating church and state. Do the schools remain neutral toward religion by balancing the teaching of evolution with the teaching of scientific arguments about creation? Or does this accommodation of a religious viewpoint depart from the requisite neutrality?

The difference dilemma also arises beyond the schoolhouse. If women’s biological differences from men justify special benefits in the workplace—such as maternity leave—are women thereby helped or hurt? Are negative stereotypes reinforced, in violation of commitments to equality? Or are differences accommodated, in fulfillment of the vision of equality? Members of religious groups that designate Saturday as the Sabbath may desire accommodation in the workplace. Is the commitment to a norm of equality advanced through such an accommodation, or through neutral application of a Saturday work requirement that happens to burden these individuals differently from others?

These knotty problems receive diverse labels and inconsistent treatment in the legal system. The dilemma of difference—sometimes treated as a constitutional question of equal protection, due process, or religious freedom; sometimes treated as a problem of statutory interpretation in civil rights, education, employment, housing, or income maintenance benefits—produces heated legal controversies that reverberate beyond courtrooms and legislatures. They occupy the attention of students and teachers, parents and neighbors, mass media and scholars. These controversies enact the political dramas of a diverse society committed to equality and to pluralism.

I suggest that the dilemma of difference is not an accidental problem in this society. The dilemma of difference grows from the ways in which this society assigns individuals to categories and, on that basis, determines whom to include in and whom to exclude from political, social, and economic activities. Because the activities are designed, in turn, with only the included participants in mind, the excluded seem not to fit because of something in their own nature. Thus, people have used categories based on age, race, gender, ethnicity, religion, and disability to decide formally and informally who is eligible to enroll in a given school, who is excluded from a particular sports activity, who may join a particular club, who may adopt a given child, and a variety of other questions.

An organization that holds its meetings in a club that excludes women, non-Christians, or nonwhites, for example, reflects the assumptions held by its conveners about who will be members. Yet if the organization tries to remedy the historical exclusion by heralding that the former blackballing category is now a basis for inclusion, the dilemma of difference becomes palpable. This solution still focuses on a category rather than treating persons as unique individuals, each one an intersection of countless categories; moreover, this solution reemphasizes the particular category that has mattered in the past. Racially segregated schools thus are changed by a focus on the racial identity of the individual students and an enrollment design to balance the composition of the school on this, and only this, basis. Similarly, when an organization that has excluded women in the past seeks to change by soliciting women members, it runs the risk of treating such new members as eligible and welcome only because they are women. Besides reducing people to one trait, this solution risks new harms if the category itself still carries stigmatizing or exclusionary consequences in other contexts.

The dilemma persists when legal reasoning itself not only typically deploys categorical approaches that reduce a complex situation, and a multifaceted person, to a place in or out of a category but also treats those categories as natural and inevitable. A complex legal dispute becomes focused on a narrow question: for example, does an employer’s refusal to hire a woman fall within the statutory exemption from the antidiscrimination statute as a business necessity?4 Both the social and legal constructions of difference have the effect of hiding from view the relationships among people, relationships marked by power and hierarchy. Within these relationships, we each become who we are and make order out of our own lives. Yet, by sorting people and problems into categories, we each cede power to social definitions that we individually no longer control.

Difference, after all, is a comparative term. It implies a reference: different from whom? I am no more different from you than you are from me. A short person is different only in relation to a tall one; a Spanish-speaking student is different in relation to an English-speaking one. But the point of comparison is often unstated. Women are compared with the unstated norm of men, “minority” races with whites, handicapped persons with the able-bodied, and “minority” religions and ethnicities with majorities.5 If we identify the unstated points of comparison necessary to the idea of difference, we will then examine the relationships between people who have and people who lack the power to assign the label of difference. If we explore the environmental context that makes some trait stand out and some people seem not to fit in, we will have the opportunity to reconsider how and for what ends we construct and manage the environment. Then difference will no longer seem empirically discoverable, consisting of traits inherent in the “different person.” Instead, perceptions of difference can become clues to broader problems of social policy and human responsibility.6

This switch in the focus of attention from the “different person” to the social and legal construction of difference challenges long-established modes of reasoning about reality and about law. Yet this new focus is enabled by the flowering of theoretical works in a striking array of fields, ranging from literary theory to sociology, feminist theory to metaphysics and biology. Thus, an exploration of the dilemma of difference also means a journey through historical shifts in patterns of knowledge in law and in many other fields.

Dilemmas of Difference in Education

The U.S. education system offers clear examples of the dilemma. Historically, school programs for children who are not native speakers of English have often ignored the difference between those children and their peers; more recently, through bilingual education progr...