Sharon L. Davies, John C. Elam/Vorys Sater Professor
Executive Director, Kirwan Institute for the Study of Race & Ethnicity
Moritz College of Law, 1L Orientation
August 15, 2012
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SLIDE (wordle). The question of this session, ladies and gentlemen, is “Why do we celebrate diversity?”
And, I might add, what makes that question so important that the law school wants you to spend time thinking about it on your first day of Orientation, when you are just getting settled into your new homes, still unpacking your bags, making new friends, doing a crap load of reading for next week’s classes, and handling 1L jitters?
Diversity, di-schmersity. Why can’t we just let you get back to your reading?
Actually, it is a legitimate question, one that I’m certain some of you have been asking yourselves, why should you think on this important day about why we celebrate diversity?
I am going to offer you a few possible answers, some relating to our connections to and relationships with each other in the broad schemes of our lives, and some that relate more specifically to the value of embracing and celebrating diversity in light of your future roles as members of the legal profession. Being a lawyer may seem a long way off on your first day walking the corridors of the Moritz College of Law as a 1L, but I can assure you, that day will be here sooner than you can imagine.
SLIDE (question). But before I offer some suggestions, I want first to ask you to do what lawyers do quite often, and focus more closely on the question itself: “Why do we celebrate diversity?”
Perhaps it has occurred to some of you that, as a trial lawyer might say when making an objection: the question assumes a fact not in evidence.
After all, to answer the question “Why do we celebrate diversity?” we must first assume the truth of the underlying premise—that we actually do celebrate diversity. So perhaps we should start with that question first. Do we celebrate diversity?
I think I may have just felt the blood pressure of Dean Northern/Solomon/Smith ratcheting up a bit. None of them received a pre-publication of my talk.
But again, I think this is a legitimate question. It has been a topic of high profile discussion of late in fact. I won’t say which one, but one of the candidates recently running for President, was quoted as saying that we shouldn’t celebrate diversity, because that leads to divisiveness. And about a month ago a columnist for the Washington Post (I won’t say which one) wrote a column that criticized all the money being spent on college campuses on Diversity and Inclusion administrators and programs.
SLIDE (Do we?): So I think it’s a fair question. Do we celebrate diversity?
Certainly if we took the long view, a view informed by history, we would not inevitably conclude that we actually do celebrate diversity. At least, we haven’t always done so.
SLIDE (We the People): And maybe we have to take a moment to define our terms, such as who is the “We” we are talking about? Even if we confine ourselves to thinking of the “We” in that question as “We the People of the United States of America…” as in our founding constitutional charter:
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
We quickly see in our own history plain evidence that the We excluded a bunch of folks who were here, suggesting that if there was a celebration of diversity going on, not everyone was invited.
SLIDE (Native peoples): When those words were first penned they certainly were not intended to include the Native peoples who were here before the European settlers. Only by excluding them from the “We” could our government direct the forced removal from their homelands in documents like SLIDE:
May 28, 1830–Indian Removal Act
Congress passes the Indian Removal Act, authorizing the president to pursue ownership of all Indian lands east of the Mississippi River. Under the act, the Indians will be compensated with new lands drawn from the public domain west of the Mississippi River.
And their slaughter when they resisted.
There was no celebration of the diversity of the native peoples of America, at least not back then.
SLIDE (Black Americans): And of course the “We” did not include Black Americans.
Art. I, sec. 2 made it clear that blacks at the time counted only as 3/5 of a person for legislative apportionment purposes, and the Supreme Court in the infamous 1857 Dred Scott decision, the decision roundly considered the worst decision in the history of the Court, Chief Justice Taney wrote without apology or a whiff on conscience that Blacks were so unfit that they had no rights the white man were bound to respect.
SLIDE (fugitives) Art. IV, sec. 2 of that document provided that:
3: No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.
It seems clear that we weren’t celebrating the contributions that Black Americans made to our nation’s diversity very much back then.
DON’T MOVE YET.
Even after the Civil War, the bloodiest in American history, and the passage of the 14th Amendment guaranteeing Black Americans equal protection of the law, you all know that the country in fact continued to deny the Black citizens equal rights and fair treatment.
SLIDE (lynching): Instead there began a reign of terror. The KKK was born and thousands of Black Americans were lynched in acts of lawless mob rule as communities across the south, west and elsewhere sought to establish and then enforce a system of White Supremacy. When protests were heard in the nation’s capital. Congress refused to pass anti-lynching legislation;
SLIDE (banner): If anything was being celebrated during this period, it was not the diversity contributions of African Americans.
SLIDE (Plessy): And make no mistake the highest Court in our nation was centrally involved in this. In 1896 decided, the Supreme Court had an opportunity to interpret the language of the 14th Amendment passed after the Civil War to guarantee Blacks equal protection of the law. The Court in Plessy v. Ferguson interpreted that guarantee to establish the Separate but Equal doctrine, which would survive for the next half century, and would support the era of state mandated segregation — of public schools, public parks, and public transportation, restrooms, restaurants, drinking fountains, and more.
SLIDE (troops) As for the U.S. military—the races were to be kept strictly apart. The Court denied this was unequal treatment of black troops, they had a seat a table, even if the table was not one any white soldier would care to sit at;
SLIDE (Lovings): Interracial lovers were not to be tolerated. States used the criminal law to police that line. And you know whenever the criminal sanction is employed, we are dead serious. It is the most blunt and powerful tool a state has to control unwanted conduct.
The law was used to police all those things—until voices of protests grew louder and began to be heard, and our society itself started to change…
SLIDE (newspaper): A key moment reflecting that change was is roundly considered the most important decisions in Supreme Court history, its landmark decision in Brown v. Board of Education in 1954, which ordered the desegregation of our public schools, and
SLIDE (Loving): Loving v. Virginia, 1967, struck down laws that prohibited interracial intimacy
During the same time period other hard fought battles of the Civil Rights era were waged, for equal voting rights, and equal employment opportunity, fair treatment of Blacks by the police, and more. Congress passed the Civil Rights Act and the Voting Rights Act.
SLIDE (Birmingham dogs): But what I want you to remember is that these victories were slow in coming. Had you been alive then you might have questioned whether you would live to see some of the victories.
They were not won easily. There was massive state resistance. There was blood shed.
SLIDE (MLK): Many brave ones lost their lives.
These are not pictures of a nation with a deep history of celebrating our diversity, ladies and gentlemen.
SLIDE (Women, sign): Neither did we care to celebrate the equal value and worth of women in America in the nation’s beginning centuries.
SLIDE (19th Am., 1920): It was not until 1920 that women would win the right to vote, and the battles for fair treatment for women proceeded slowly from there. Whole courses are taught on exactly how slow.
SLIDE (Mad Men): Fast forward to the 50s and 60s, any fans of Mad Men in the house? ‘Nuff said about the slow progress of the fair treatment of women.
Not much celebrating of our diversity to be seen in that history.
In fact, I think it is reasonable to conclude that through most of our history if the nation celebrated its diversity, it was the diversity of only some of us and the celebrations were
SLIDE (logo): “By invitation only.”
But what does all that have to do with law, and lawyers, and you on your first day of law school orientation? You’re not History PhDs candidates.
Can’t we relegate all that to peers over in the history department, and simply answer the question: “Yes! we do celebrate diversity—at least today, and get on with the question of Why?
Or is it more accurate to say that we are still engaged in a negotiation of whose diversity we are willing to celebrate?
SLIDE (Wade Michael Page): Just a little over a week ago 6 innocent people gunned down before a prayer service in a Sikh temple in Oak Creek Wisconsin.
That rampage of violence was anything but a celebration of our diversity.
But no doubt many of you are thinking that we can call that aberrational—the act of an isolated mentally unbalanced bigot. There are reports that he is a neo-Nazi, surely that places him on the fringe of society.
Fair enough. But I want you to think hard on this.
SLIDE (anti-Muslim): Even if most Americans would never do anything like that, do we truly celebrate the value and worth of Muslim Americans today?
SLIDE (anti-gay): Do we celebrate the value of gay, lesbian, bisexual, and transgender Americans? They add to our diversity. Do we celebrate it?
Surely not always, surely not everyone.
SLIDE (Faulkner): What was it that Faulkner once said? “The past is not dead. It is not even past.”
Still today, on this happy day, as I look across this room, and I reflect on the diversity of this group, it strikes me that there is some powerful evidence sitting here in this room that at the Moritz College of Law and at The Ohio State University we do celebrate diversity.
SLIDE (Class of 2015) Dean Northern sent me some stats about you.
So perhaps I have answered my own question—do we celebrate diversity? Yes we do.
DON’T DON’T DON’T MOVE TO NEXT SLIDE
But in truth, the profile of this class only speaks to the celebratory attitude the College of Law and this university have toward diversity. It does not automatically follow that you all will or do value diversity as highly as do we do. For that celebration of diversity to occur, our celebrations must be a party that you want to join.
Which finally leads me back to my assignment here: perhaps what the administration really wanted me to talk with you about is “why we celebrate diversity,” to increase the chances that you would want to come to our party.
Not everyone does. Some stay home. Some throw their own parties. And some of those will still be by invitation only.
Why do we celebrate diversity?
If looking across this room doesn’t provide reason enough to explain it, let me try to offer a few reasons more. There are many reasons, I’ll give you 3.
NOW SLIDE (Reason 1): Reason #1—We celebrate diversity because some of our worst moments in human history have been moments when we have failed to celebrate the value and worth of all of us.
I started my comments with a brief look back at a number of moments in our nation’s history when we failed fully to value our diversity, and I think we can agree at minimum that those moments don’t make us proud. Some of history is embarrassing, some of it shameful, some of it is inhumane. When we look at this picture of babies forced to wear Stars of David, and think about the atrocities of the Holocaust, it is good to feel distant from that. That feeling that this is ancient history is a good thing—to feel so differently about matters that used to fill those who came before us with fear, hate and even drive them to violence. It is good to feel distant from that.
But remember the words of Twain SLIDE (Twain): History may not repeat itself exactly, but it does rhyme.
SLIDE (Reason 2, class of 1950): Reason #2—We celebrate diversity because diversity deepens our understanding of those not like us and makes us better thinkers.
When women were excluded from law schools, ladies, it was no coincidence that Criminal Law textbooks—all written by men—failed to include materials on the law of rape. Rape was a crime, but no criminal law professor, also all men, spent any time teaching it in the basic criminal law course. It is also no coincidence that rape statutes seemed to focus more attention on the behavior of rape complainants than their alleged attackers. No matter their size and strength differential, women were required by the law to fight their attackers “to the utmost;” and they had to have the bruises and broken bones to prove they had done it; their allegations had to be corroborated, either by their physical injuries, or by the word of someone beside themselves in order for their complaints to go forward, their sexual histories became public fodder, and their juries were to be specifically warned that rape was easy to claim, hard to defend against, a virtual presumption of falsity. It is no accident that when women began to be admitted into law schools and when their numbers began to grow in state legislatures that those laws began to be reformed.
SLIDE (reason 3): Reason #3—we celebrate diversity because we understand the error and danger of prejudice and bias, and we want to arm ourselves against them in every way we can.
We have little difficulty today associating events from the past with racial or ethnic bigotry. But it is important to remember the folks involved in those events did not see themselves as bigots. (Chief Justice Taney believed that the idea that whites need not respect any rights claimed by blacks was simply a straightforward statement about natural social order; Gov. Wallace and his constituents frequently pointed to the authority of God’s law and the Bible as the basis of their belief in the separation of the races). So here’s the question for us: If they could convince themselves that their acts were not motivated by prejudice, what judgments of ours might we be capable of fooling ourselves about today?
SLIDE (implicit bias): It turns out we are less skilled at knowing when we are being influenced by unconscious automatic racial associations that can impact our thoughts and judgments of others unlike us. Social psychologists have conducted hundreds of studies showing the reality of implicit bias, unconscious racial associations that fire off in our brains, even the brains of people deeply committed to egalitarian principles.
SLIDE (Trayvon Martin): These unconscious biases help explain how a person can see danger and criminality even where there is no danger and criminality.
SLIDE (baby in carriage): Happily, research also shows that regular meaningful contact with others not like ourselves can help disrupt automatic unconscious biases. But that doesn’t happen by itself. We don’t get the benefit from those contacts simply by sitting 5 seats away from somebody of a different racial or ethnic background.
In other words, ladies and gentlemen, we have do more than just be at the same party, we have to genuinely talk with and listen to each other for that learning to occur.
Fisher v. University of Texas (if there is time).
SLIDE (4 ARMS): I want to conclude with a few words about a case that is in the news now, and will be subject of a lot of media attention throughout your first year. Its name is Abigail Fisher v. University of Texas, some of you may know that it questions whether college admissions officers can constitutionally consider a college applicant’s race along with other parts of his or her biography when putting together a diverse entering class, or must admissions be race blind. You should know that this will be most important case the Court will decide next term.
The Ohio State University has joined one of the amicus briefs submitted in support of the University of Texas, and the Kirwan Institute has helped draft another brief in support of the university as well. You can find all of the briefs on both sides on-line, but it would take you weeks to read them all and I don’t advise it.
It is a controversial topic; I believe you will cover it in your 2d semester Constitutional Law course, but for the purposes of today let me just say this. The argument in the case is not about whether student body diversity is a positive social good, the argument is over how we can go about pursuing that diversity.
And if that is our beginning point, ladies and gentlemen you can see that we have come a long way.
Thank you very much. Welcome to law school. I wish you great success this semester.