diversityDiversity pervades American public life. It is a policy, an ideology, and a regime. That is, diversity is a full governing system its proponents want to spread throughout society, with its own rules, goods, rights, and duties. The goal is revolutionary—establishment of a new way of life in which chosen “differences” are affirmed and valued for their own sake and for the kind of society they shape. What this means in practice is that groups, habits, images, and practices (both public and private) associated with mainstream American culture are to be de-emphasized and de-valued so that what diversity proponents see as the homogeneous vision of an “Ozzie and Harriet” lifestyle may be eliminated. The alternative proposed is something new, more fragmented, and predominantly populated by formerly less visible and valued groups and practices. The revolutionary change is demanded largely on the grounds of justice, and it is undeniable that grave injustices were committed, and still are committed, in the name of America, abstractly defined. But the goal is not an end to abuses; it is, rather, an end to our pre-existing way of life and its replacement by a very new one.

Diversity is very much about appearances—about making institutions and communities “look like America,” by which is meant consisting of a specific mix of ethnic, racial, and gender groups. But the diversity regime also entails rejecting the “liberal” values of individual virtue and merit, and of constitutional procedures and protections many had thought compatible with both individualism and more “progressive” ways of ordering public and private life. Critics of diversity often highlight the highly tendentious nature of its claims that Hollywood and Madison Avenue images oppressed most Americans before diversity became the ruling ideology. But the very point of diversity is that there is no real distinction between public imagery, public policy, and society. That is, the diversity regime rests on a distinctly non-liberal conception of society as intrinsically and pervasively political.

What I would call the diversity regime is a state in the old, total conception. It is a ruling structure and ideology that seeks to reconfigure all of society, including our personal lives. It is a return to the ancient Greek conception of the polis as a city-community. In ancient times, and in revolutionary regimes patterned thereon (one thinks, here, of Jacobin France) the “constitution” of the community constructed all of life, including where the people would eat (and who bakes the cakes), and how and who they would worship.

Like many utopian ideologies, diversity does have a governing logic. But it is not the logic of liberal tolerance, or even of individual autonomy. As Charles Taylor pointed out many years ago,[i] diversity’s logic is one of recognition. Taylor, a qualified supporter of diversity politics (and all things left) sees their origins in the collapse of “social hierarchies,” by which he means much more than the downfall of feudalism and aristocracy. On Taylor’s view, through the rejection of hierarchical structures of politics, society, and religion, all of us have come to see human dignity as an essential part of our being, and as requiring recognition and affirmation of each of our own authentic selves. Those selves being formed in significant measure by social identities (i.e. not purely “inwardly generated”) we must be “recognized” for social identities as well.


Charles Taylor

Taylor’s argument distorts history and especially the powerful role once played by religion in promoting the dignity of persons, but his is the dominant view among our politicized intellectual class. He in effect endorses the diversity regime by arguing that all societies must recognize the limits of liberal proceduralism. “Some” liberal rights are universal and must be protected, but others (including non-discrimination) are negotiable. The negotiations, Taylor argues, in large measure should take place in university-level debates; investigation of the worth of various cultures should begin from a presumption of worth, but may result in the determination that the culture in question, or parts of it, are in fact not worthy of respect. Here one thinks, again, of the diversity regime’s hostility toward those seen as having too much power, or those Taylor would deem “arrogant” for not wanting to re-evaluate their culture through the ideological lens of diversity.

The Canadian regime, much further along in institutionalizing diversity than the American, shows the direction in which Taylor’s multiculturalism tends. In it, members of various groups (especially Francophones but also various indigenous groups and even smaller immigrant groups) demand recognition from the state, including employment quotas and linguistic services on account of the social and political relevance of their categories, experiences, and oppressions. More generally, in any diversity regime these groups in effect compete for positions in government, private business, media, and the university on the grounds of their historically grounded disabilities. The state serves as the arbiter of grievances and, more important, the source of benefits and rules for their distribution. Those benefits, from cash payments to placement on preference lists for employment quotas, are the stuff of public debate and political power.

This is hardly a unique regime. As Thomas Sowell pointed out a decade ago,[ii] a significant number of countries, including India, Malaysia, Indonesia and Nigeria, for many years have implemented preferential programs, justified on grounds highly similar to those for American affirmative action, which in effect institutionalized diversity regimes. As Sowell points out, such regimes not only treat citizens differently according to their membership in various groups, they come to re-constitute their societies in accordance with a vision of relative power and worth according to such memberships.

Like utopian visions in general, diversity it is at war with nature; it foments distrust and conflict among groups (one need only look at current conditions from Baltimore to New York, to Ferguson and now Cleveland) leading to further radicalization of politics, to violence, and tends toward public bankruptcy regime breakdown. In India recently this has meant a veering toward communist regimes and movements in some provinces, along with a general “backsliding” toward Hinduism at the center. Within an intermediate time frame, though, the state relies on force and fraud to rule, meaning that it cannot operate according to law. Its conception of the person and society requires impositions that by nature undermine central concepts and institutions of our lives (e.g. the family). These impositions also damage the exoskeleton, as it were, of constitutional governance. Three social institutions in particular—freedom of association, limited government and the rule of law—are at risk, here. These institutions are crucial to constitutional governance and as they crumble under the force of the diversity regime, so does constitutional government itself.


Yuval Levin

In a perceptive piece of commentary[iii] Yuval Levin examines contemporary conflicts over same-sex marriage in terms of the new power wielded by what he calls the Church of the Left. This church, in Levin’s view, should be seen as a kind of religious establishment; it allows for more or less toleration of divergent viewpoints and actions depending on their level of deviation and perceived danger to its ability to promulgate and enforce what it deems correct policies. Diversity has become the creed of an established church in the old world sense of an orthodox institution with a creed, a hierarchy, and the ability and willingness to use coercion to maintain its authority.

Thus, for example, we have the problem of those who happen to be Christian and do not want to participate in celebrations of same-sex unions by making custom wedding cakes or working as photographers. As we know, these people are told that they have a duty to perform as demanded, requiring that they change their viewpoints or ignore them, or else withdraw from their chosen profession. Otherwise, fines, license revocation, and potential jail time may ensue as punishment for a lack of celebration of diversity. It would be easy to point to the hypocrisy of the “diverse” position, here. In particular, one does not hear of Muslim bakers, at least as likely as Christians to refuse to engage in this rather specific form of intimate commerce (taking part in a celebration), being punished for such refusals. The implication is that there is an inconsistency, one that, for example, violates the rule of law by punishing different people differently for violating the same rule. It is important to understand, however, that there is a logic—though not a legal logic—to the disparate treatment of these suspect groups.

Like all establishments, the diversity regime (and its Church of the Left) treats dissenters, not merely according to their violation of established rules, but also according to the level of danger it sees particular dissenting groups as presenting to its own power. In the United States, there are far more Christians than Muslims. Moreover, our culture is deeply rooted in Christian ideas, associations, and presumptions. Thus, Christianity’s ways of thinking and acting constitute more of a barrier than Islam’s to construction of a new, diverse society. Because the goal is structural, to root out and replace a particular way of life, it is important to choose one’s adversaries according to the level of danger they present.

As to Muslims in America, they may be incorporated into the new regime in a different manner, as officially oppressed minorities whose insular practices for now are irrelevant because not powerful in the public square. As the French example shows (scarves, crosses, and the like), the secular authorities are quite willing to put down resistance from minority religious groups when they feel it necessary. But the overall goal is the smashing of traditional structures of thought and value, of which Islam is not yet recognized as a major part in Europe, to produce a “new” way of life.

This “way” is not precisely communitarian, certainly not as any conservative such as Robert Nisbet would understand the term. The local associations that once were the center of social and cultural life all stand under the judgment of the diversity regime—as Taylor argued, all cultures are presumed worthy, but may be found unworthy after examination. Moreover, individualism remains key because individual persons will be protected in their decisions as to which groups to join and/or exit. Gender and even (as with Elizabeth Warren) race may be accepted as the result of choice. That said, the state will organize society in such a way as to prioritize the identities chosen by individuals. Government benefits, rights, and even jobs will be distributed according to the status and power of various groups within the system. Diversity quotas and the diversity hiring machine, as I have argued here before, aim to produce a certain look to all institutions and communities but, more important, a specific ideological cast of mind that rejects Western traditions.

Several problems arise from this vision of political society. First, while individuals in principle will have utter freedom, even to define who they are, meaningful freedom of association is eliminated. This is so because the diversity regime is hostile toward practices it deems “discriminatory” or even “exclusive” or “non-inclusive.” Moreover, numerous groups will need to be kept in check lest they “empower” what the diversity regime would consider retrograde views—racism, sexism, homophobia, and so on. In addition, the state must not, in principle, be limited in its ability, or even in the tools it may use, to “fix” individuals and groups to bring them in line with the ruling ideology. Thus, limited government must go, and so must the rule of law.


Harold J. Berman

Freedom of association is perhaps the central, most crucial means of maintaining ordered liberty. As Harold J. Berman argued,[iv] the western legal tradition (and with it constitutional government as we know it) began with the conflict between the Catholic Church and various monarchs who asserted their right to choose their own bishops and, through them, to control all spiritual lives and communities within their realms. The Pope’s (partial) victory in this struggle allowed for establishment of a separate, ecclesiastical jurisdiction helping to check the secular power and foment the growth of legal rights and restrictions. Separate customs, rights, and even court systems developed for religious issues (including family law and, for many years in many areas, laws relating to poverty and even, in the law merchant, much commercial law). The result was, in a phrase, limited, constitutional government.

The rights of communities buttressed the rights of all by limiting the powers of any central government. Today we see an aggressive reversal of this process, in large measure on the grounds that diversity requires it. Thus, for example, judges in the state of California cannot serve as Boy Scout leaders because this would be seen as violating ethical rules barring discriminating against homosexuals. This rule may be rescinded at any time, however, because the Boy Scout leadership is moving to eliminate its ban on openly homosexual scout leaders—itself another victory for diversity politics as traditional religious groups struggle to find and found alternative groups.

Also relevant is the Supreme Court decision in Christian Legal Society v. Martinez.[v] In this case the Supreme Court upheld the decision of the University of California Hastings School of Law to deny equal status and defund the local chapter of the Christian Legal Society (CLS). The decision was made in response to CLS’s policy limiting the right to vote for leadership positions to those who signed its statement of purpose, which used overtly religious language in stating that sexual relations should be engaged in only within traditional marriage. While the terms of this statement clearly would deny leadership roles to heterosexual students engaging in such conduct (presumably the majority on campus) it also denied such roles to homosexual students on the same grounds, and this latter element was found discriminatory. As a result, CLS was forced off campus. The Supreme Court majority upheld the law school action in part on the grounds that the price paid by CLS was minimal, something highly doubtful under the circumstances and, involving as it did official recognition, certainly not something it would have deemed negligible had the parties’ positions been reversed. In effect, diversity criteria are being used to determine which groups merit recognition, and which should be “recognized” as illegitimate, fringe elements that might not merit police action, but should be marginalized.

OLYMPUS DIGITAL CAMERAIn effect, non-diverse (one might today say “countercultural”) associations are being intentionally stigmatized and marginalized so that they cannot undermine the ability of the diversity regime to redefine standards of conduct. We already have seen where this leads. One prominent example is the Supreme Court refusal to hear a challenge to the California Supreme Court’s decision upholding a state requirement that Catholic Charities pay for insurance providing abortifacients to its employees.[vi] The organization might have been allowed to maintain its religiously-based position against birth control and abortion, but only by being so pervasively religious that it would neither hire nor serve non-Catholics, meaning that it would have to give up its outreach, its public face, and its mission as a Christian organization in public life. Freedom of association, the key to liberty, and also the key to protecting people against an overreaching state, is only what the state decides it can be.

This points to the problem of limited government. State and increasingly the federal government now are in a strong position to regulate the conduct and membership of various organizations. As well, the federal government, through Obamacare, now is determining the healthcare insurance decisions of private organizations, including even the Little Sisters of the Poor.[vii] The distinction between public and private (or, more accurately, governmental and social) spheres being rejected by diversity’s ideology, the distinction no longer serves to limit the power of the regime.

Perhaps most worrisome is the Obama Administration’s decision to pursue its diversity policies without abiding by the rule of law. In particular, many of the major decisions affecting the rights of associations and even the conduct of public institutions are being made, not by the legislature, and not according to settled rules, but through executive branch decrees. The most powerful tool of executive overreach has been “disparate impact analysis.” This creed is enshrined in law in only highly narrow and specific circumstances, but widely adopted as an investigative policy and outcome-demand nonetheless.

Disparate impact analysis is the quasi-law of the land. That is, while not called for in the law (other than in a very few sad, damaging instances) it is enforced as part of the law of the land by the Justice Department, and even the Department of Education through internal memos, policy statements, and other sub-legal orders. According to disparate impact analysis, the state should assume discriminatory motives are behind even the most neutral policies (such as, for example, an employer’s requirement that workers obtain a high school diploma) effect members of one racial group more than another. The assumption is utterly specious because it intentionally ignores highly relevant factors (e.g. poor schools in given areas).[viii] It also is a powerful tool for asserting executive control over everything from hiring policies in private businesses to local city policing, to school district suspension policies.

As an example, in the Minneapolis Public Schools, among others, it now is official policy that within four years the district must eliminate “disproportionality between black and brown students and their white peers.” “Disproportionality” in what, exactly? School suspensions for non-violent offenses. The school system is to enforce policies by the (racial) numbers.[ix] There now will be suspension quotas. As I noted in a previous article, here, according to the new Minneapolis policy:

Moving forward, every suspension of a black or brown student will be reviewed by the superintendent’s leadership team. The school district aims to more deeply understand the circumstances of suspensions with the goal of providing greater supports to the school, student or family in need. This team could choose to bring in additional resources for the student, family and school.

As bad as this policy’s clear violation of any notion of equal protection of the laws, as bad as its clear message that “black or brown” students are somehow by nature in need of additional nanny-state protections, is its imposition through executive fiat. No legislation is behind this massive attack on equal treatment under the authority of government agencies (e.g. public schools and the national education bureaucracy). It is an ideological policy implemented through the bullying of local organizations, with the power of the federal government to deny funding or initiate expensive, time-consuming review and even lawsuits used as an effective cudgel to force compliance.

Increasingly throughout our nation executive branch policies are being implemented through Executive Orders and simple policy statements that are enforced through the threat of legal action. Those subjected to these threats sign “consent decrees” in order to protect themselves from bankruptcy. Those decrees then turn diversity ideology into diversity policy. Of course, such tactics are unnecessary in many institutions, where administrators simply institute diversity policies on their own, secure in the knowledge that the federal government will “have their back,” should anyone challenge the policies as violating former constitutional rights.

In sum, where the radical politics of the 1960s began with the cry that “the system” was to blame for society’s ills, today a new system has been constructed with the goal of restructuring society along new ideological lines. The price has been high, not just for those in disfavored groups who have lost job opportunities, not just for those whose voices are being stifled, who are forced to act in ways that undermine their most deeply held beliefs, but for the millions of people seen (often even by themselves) as beneficiaries of the new regime. The culture of dependency forged by mandated programs and quotas, the group hostility fomented by conflict over access to political power, and the breakdown of norms of public civility, voluntary association, and recognition of internal merit have created a public sphere dominated by resentment. Violence is all but inevitable under such circumstances, as is further erosion of long-held constitutional rights. Only a rejection of the diversity at the heart of this regime can bring peace and any hope of restoring a way of life that promises mutual respect and ordered liberty.

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[i] Charles Taylor, Multiculturalism and the Politics of Recognition (Princeton: Princeton University Press, 1992).

[ii] Thomas Sowell, Affirmative Action Around the World: An Empirical Study (New Haven: Yale Nota Bene, 2005).

[iii] http://www.nationalreview.com/corner/416421/church-left-yuval-levin

[iv] Harold J. Berman, Law and Revolution: The Formation of the Western Legal Tradition (Cambridge: Harvard University Press, 1983).

[v] 561 U.S. 661 (2010).

[vi] Catholic Charities of Sacramento v. Superior Court, 32 Cal.4th 527, 85 P.2d 67 (2004).

[vii] http://www.christianpost.com/news/little-sisters-of-the-poor-appeal-to-federal-court-over-obamacare-contraception-mandate-115155/

[viii] For a powerful critique addressing disparate impact analysis in regard to policing see Heather MacDonald’s piece here.

[ix] http://reason.com/blog/2014/11/11/schools-implement-explicit-racial-bias-i

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