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Making All the Difference: Inclusion, Exclusion and American Law.

Making All The Difference: Inclusion, Exclusion and American Law Making All The Difference: Inclusion, Exclusion and American Law. Martha Minow. Cornell University Press, $29.95. When victims of discrimination look to the courts to remedy unequal treatment, a court has the option of ordering special treatment or a remedy requiring equal treatment.

Both of these options, Minow says, have problems: mandating equality of treatment ignores the circumstances that have led to the inequality in the first place, while mandating special treatment marks the plaintiff as "different" and may perpetuate the presumptions of difference that led to the inequality. In this book, Minow tries to resolve this "dilemma of difference," of which affirmative action provides the most familiar example.

The problem of bilingual education offers a clear illustration of the dilemma in a policymaking context. Before 1923, when the Supreme Court handed down its decision in Meyer v. Nebraska prohibiting such laws, some communities enacted statutes requiring that all education be conducted in English, forbidding the use of any non-English language, even in private schools. The aim was to promote homogeneity in a culture composed, in large part, of recent immigrants. Such a rationale is unattractive because it is largely xenophobic, but it is clear, on the other hand, that an education system does no favors to its students if it fails to make them proficient in the dominant language.

Minow argues that the dilemma of difference is not necessary or natural, but rather proceeds from legal--and popular--conceptions. Individuals or groups raising civil rights issues are treated by the legal system as if they were "different," and these differences nearly always carry a stigma.

Legal analysis treats difference as a deviation from an unacknowledged norm. So when the issue involves gender, men are treated, but never acknowledged, as the norm, while women are considered the deviation. When the issue is race, whites are treated, but never acknowledged, as the norm, while blacks are considered the deviation. In special education cases, it's an intelligence level above a certain limit that's selected as the norm, while an intelligent level below the limit is deemed a deviation.

When a woman is discriminated against, for example, this legal analysis leads to one of the following conclusions: she should be treated as if she were a man (the equality approach), or she should be given special help because of her deviations from the norm (the special treatment approach). But each of these conclusions, as well as the legal remedies they give rise to, re-create exclusion--the one by ignoring past wrongs, the other by emphasizing--and stigmatizing--differences.

The challenge is to find a way to analyze "difference" in a way that will not result in this dilemma. This requires understanding the characteristics that differentiate a class without freezing the group in the classification or marking it off as a deviation that must somehow be "dealt with." The answer, Minow suggests, is what she calls the "social relations" approach, which does not concentrate on the rights at stake but instead on how the interests of all parties could be made to intersect at the point of controversy.

Getting away from stridency about rights and bias about differences is a good thing, but Minow's approach simply amounts to overcoming exclusion by overemphasizing inclusion. For example, when she considers the case of deaf students seeking instruction along with hearing students, she rightly sees that the issue is not only the rights of the deaf students (after all, the hearing students and the teacher have a stake in this as well), but her solution is a howler: all the students should learn sign language. Nice idea in principle, and it would have some real social benefits for all the students, but it also means a net educational loss for all if it's a class in, say, French.

Minow is correctly apprehensive that her approach wil be understood as nothing but a plea for compassion and enlarged understanding of the disadvantaged. She claims to have in mind a project more radical than this, part of a broad range of contemporary developments in philosophy, literary criticism, psychology, and feminist theory. She remains vague, however, about how the legalsystem can implement the social relations approach to resolve the dilemma of difference. She says, "Legal rights ... should be understood as the language of a continuing process rather than a fixed rules." This has a fine academic ring to it, but the victims of discrimination are hardly interested in an invitation to join a "continuing process," and courts carrying a crushing case load will be no more interested.

But at the same time that Minow's attempted resolution of the dilemma of difference seems merely academic, it may also be, from aother perspective, entirely realistic. Calling for a continuing dialogue among parties and an unceasing suspicion of the categories used in analysis demands that our conception of the "legal system" be expanded to include policymaking and even individual human relations. This seems historically right and even practical in the era of the generally unsympathetic Rehnquist court: Minow's cause will have to find an arena beyoond the courtroom if it is to prosper. For all her aspirations to radical theory, the "social relations" approach sounds a lot like something we already know well. It's called politics.
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Author:Johnson, Stuart
Publication:Washington Monthly
Article Type:Book Review
Date:Nov 1, 1990
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