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

• Author: Johnson, Stuart

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...