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In Diversity We (Sorta) Trust—A Commentary by Peter Schuck

The following commentary was published in the December issue of The American Lawyer.

In Diversity We (Sorta) Trust
By Peter Schuck

America’s unique level of diversity is widely celebrated, especially among well-educated, cosmopolitan people like the readers of The American Lawyer. Political leaders from both parties, professors and pundits of all stripes, savvy business executives, and most other members of the public believe that it is a major source of America’s strength, dynamism, and creativity.

In truth, racial and ethnic diversity have little popular support outside the United States and Canada. The diversity ideal appears to be a distinctively, if not uniquely, American
(or at least North American) theme. Most of the democracies that now tolerate ethnic diversity have done so only recently—and perhaps only temporarily, until their anti-immigrant forces can mount an effective counterattack.

Even in the U.S., diversity mongering is a recent innovation, dating only to the aftermath of the civil rights movement in the late 1960s. Many Americans still oppose diversity, while many others support it only because they assume that it will be merely a temporary condition. Newcomers, they suppose, will quickly assimilate to American ways, shedding their distinctive ones. In most cases, they are right.

I am firmly convinced that ethno-racial diversity is good for American society, and that the law should protect it. This conviction, however, is more an article of my faith in the vitality and inclusiveness of American democracy and the rule of law than it is an unassailable fact. Reasons for skepticism abound. Nothing could be clearer, for example, than the timeless record of diversity-generated war, social conflict, enduring hatreds, oppression of “outsider” groups, and murderous communal violence, sometimes on a colossal scale. Just in the last century, the Armenian massacre, the Holocaust, the Muslim-Hindu carnage in India after partition, and the recent ethnic wars in Northern Ireland, the Balkans, Rwanda, and Congo remind us that 250 years after the Age of Enlightenment, the dark side of diversity is very much with us.

Are Americans right to think that we are somehow different, that we can escape the carnage and conflict that diversity has wrought in countless other societies since the beginning of time? Few questions are more vital for our society’s future.

Optimists like me can cite our dedication to the equality protections of our Constitution (at least the modern, post–civil rights version), our rising levels of education and cosmopolitanism, our widespread ethos of tolerance, the fragmentation of political power, and the merciful absence of communal violence since the 1960s. Where diversity is concerned, American society seems to be a great, if incomplete, success story.

Now, into this extraordinarily sensitive and important debate, comes Robert Putnam. A widely respected political scientist at Harvard University’s Kennedy School of Government, Putnam is the author of a much-discussed book, Bowling Alone, published in 1995. In that book, Putnam analyzed the nature of “social capital,” which he defined as “social networks and the associated norms of reciprocity and trustworthiness.” Putnam emphasized the enormous value of these networks, both for those who are in them, and for the rest of us. His boldest claim, drawn mostly from survey data, was that America’s stock of social capital had significantly declined, that Americans who used to congregate and interact in communal activities (e.g., bowling leagues) were now “bowling alone.” This claim was, and remains, highly controversial. For example, Putnam’s critics cited the growth of soccer teams, book  clubs, religious communities, and the like, arguing that social capital had not declined but merely changed form.

Putnam, who had speculated that increased TV watching might be reducing social capital, is now testing other causal theories. In a new article, he brings a mountain of social science data to bear on how diversity affects social capital. His core finding? As immigration and ethnic diversity increase, social capital and solidarity decrease.

An earlier generation of social scientists, Putnam points out, had been more optimistic. They advanced a “contact” theory, which posited that more intensive interaction among groups would foster greater trust, harmony, and feelings of community, as people learned that “we are all the same under the skin.” Instead, Putnam concludes, the evidence seems to support a “conflict” theory, which holds that greater physical proximity among different ethnic groups causes increased suspicion among them, and a retreat to the security of narrower in-group loyalties.

Putnam’s most important and unexpected finding is that the more ethnically diverse a community is, the less people tend to trust others, including members of their own ethnic group in their own neighborhoods. This pattern, moreover, holds for every demographic and ethnic group and every definition of neighborhood. It also holds regardless of the degree of economic inequality within or among the groups. In Putnam’s words, “inhabitants of diverse communities tend to withdraw from collective life, to distrust their neighbors, regardless of the color of their skin, to withdraw even from close friends, to expect the worst from their community and its leaders, to volunteer less, give less to charity and work on community projects less often, to register to vote less, to agitate for social reform more but have less faith that they can actually make a difference, and to huddle unhappily in front of the television.”

Nevertheless, Putnam remains optimistic that ethnic diversity may eventually build social capital rather than erode it. He speculates that although many Americans retreat in the face of ethnic diversity, this may change over time as people become more comfortable with it. But where might this comfort come from if they are busy hunkering down? Putnam suggests that ethnic identity may give way to, or at least coexist with, more overarching identities such as occupation, consumption patterns, and neighborhood, that make ethnicity less salient to people. Citing improved race relations in the military, increased religious tolerance, and rising rates of ethnic intermarriage, Putnam contends “that in the short run there is a trade-off between diversity and community, but that over time wise policies (public and private) can ameliorate that trade-off.” As examples of such policies, he mentions building more public facilities for common use, aiding local communities, encouraging churches to be more inclusive, and offering greater support for English instruction for immigrants.

Some of Putnam’s readers are more skeptical. Political scientist James Q. Wilson reminds us that neighborhoods—where social capital must largely be built—are different than the military, churches, or professional sports (where integration has also been successful).Unlike those domains, he argues, neighborhoods lack the authority and discipline to induce people to desire more diversity there. He cites evidence—including Putnam’s findings, economist Thomas Schelling’s modeling of how neighborhoods’ ethnic  composition often changes to produce even less integration than their residents may want, and my own analysis of legally mandated residential integration by race and class—for the proposition that “people enter into more useful and fulfilling social networks in ethnically homogeneous areas.”

Putnam’s work is very important in providing a firm empirical confirmation of what many close students of diversity thought we already knew. Organizational economists, for example, have shown that diversity can raise the decision and governance costs of corporations, worker-owned firms, cooperatives, and nonprofit groups. If social capital manages to form in such organizations, the chronic indecision and embedded conflict generated by this diversity will likely squander it.

The truth is that the value of diversity, like the value of most everything else, is in the eye of the beholder. It is an acquired taste, and its attractiveness depends on social context. Those of us who celebrate it have a hard time understanding why others might find it threatening or disturbing or even hateful. As Putnam shows, however, this reaction is not necessarily racist or ethnocentric (although it may be); once triggered, it can cause one to turn away even from members of one’s own group.

What does all this have to do with law? A great deal, as it turns out. Managing diversity wisely while also building, or at least maintaining, social capital is among the most compelling and difficult tasks facing all societies today. To accomplish this vital goal, we have a number of different but related tools to work with: politics, law, markets, social norms, and a wide variety of civil society institutions such as families, voluntary associations, and education. Each of these tools has its distinct advantages and disadvantages, of course, which is why we often deploy several, and sometimes all, of them when attempting to solve complex social problems like diversity-magnified conflict. The trick, however, is to combine them optimally in light of the nature and magnitude of the specific problem being addressed.

Law is essential for this task, but law—for a variety of reasons that lawyers understand very well—can be heavy-handed and counterproductive. Where the delicate task of diversity management is concerned, law must be used as a scalpel, not a bludgeon. Broadly speaking, law can do eight things: Law can import and assimilate it (as with immigration policy). Law can define and certify it (as with affirmative action). Law can subsidize diversity (as with housing) and mandate it (as with legally required integration). Law can protect existing and emergent diversities (under the First Amendment) and exploit them for the good (by using existing religious and other diversities and voucher-type programs to promote public policy goals, such as increasing the choice and quality of education).

My own study of diversity management in the U.S. suggests to me that the law is most legitimate and effective when used to import and assimilate diversity and to protect and exploit existing diversities. The best examples of the latter are laws that promote competition and that prohibit invidious discrimination. Law is least effective in managing diversity when the government seeks to define, certify, subsidize, and mandate it.

Where its goals are to manage diversity and build social capital, law should wherever possible create (or unleash) positive incentives rather than impose coercive and inevitably crude rules. For example, government gives tax-free status to nonprofit associations, which can then experiment with different types of associational and programmatic models, rather than having government choose the “best” model and then regulate it. Rules will be necessary, however, to protect diversity against discriminatory and monopolistic conduct. These principles are especially important in a liberal society like ours that relies so heavily on individual choice and market dynamics. Americans most resist government intervention in areas that they consider deeply private—notably, the decision to live in one neighborhood rather than another, and to interact with some people rather than others. (The fact that the government heavily subsidizes such housing choices does not much affect most Americans’ view that this choice is essentially private.) More generally, the same is true of our choices about how much diversity we want, of which kind, with which individuals, and through which interactions.

Much in American culture—our individualism, our immigration, our religiosity, our First Amendment—demands and nourishes diversity. But we must struggle to understand what diversity actually means, how much it costs, whether and how law can effectively manage it, and when other social processes might do it better. The bad news is that we have only begun to ask these immensely difficult questions; Putnam’s data should inform our thinking. The good news is that no other society in history has been better equipped to answer them than twenty-first-century America.

Peter Schuck, a law professor at Yale, is the author most recently of Targeting in Social Programs (Brookings) and Meditations of a Militant Moderate (Rowman & Littlefield).