One Artist’s View of Diversity from Pixabay

“Beauty is truth, truth beauty, — that is all ye know on earth, and all ye need to know.”

Indians know diversity, and knew it before Columbus got lost. My people, woodland hunters and farmers, traded with coastal tribes in one direction and in the other direction copper ornaments smelted in Cherokee country turned up in Southwestern pueblos, where they grew the Three Sisters crops on dry land farms and built with stucco. When the Spanish proved unable to keep track of their livestock, many tribes took up the buffalo culture on the Great Plains. Athabascan speakers live in icy Alaska and desert Utah. We know diversity.

To the colonists, we are all “Indians,” one of the most exotic minorities in modern politics. We all have this experience at some point if we leave home: “Do you want to be called Indian or Native American?” Tribal identity requires explanation, and it does get tiresome.

African-Americans, by the tragedy they have endured, bigfoot any discussion of diversity in the United States. The Civil War was, much as the Confederates denied it afterwards, about slavery.

The Civil War added three amendments to the Constitution, 13 to 15, but it was the Fourteenth Amendment that most clearly imported into law the statement of faith in the Declaration of Independence that “all men are created equal.”

Republicans, then the anti-slavery party, controlled the Congress and the Presidency, but the Supreme Court changes much more slowly and it remained in the hands of Democrats. The Democratic Court quickly gutted the Privileges and Immunities Clause of the Fourteenth Amendment in The Slaughterhouse Cases (1873) and the Equal Protection Clause in Plessy v. Ferguson (1896). When the Court informed us in The Civil Rights Cases (1883) that the laws passed to enforce the Thirteenth and Fourteenth Amendments could not reach private acts of discrimination, legal equality died for another half century.

Homer Plessy’s case was particularly ironic. Plessy was one-eighth African-American by blood quantum, and so considered himself a white man — but the Court found he was not white enough to sit where he pleased on public transportation. There things stood until Rosa Parks came along not claiming to be a white woman, but merely insisting she was a human being.

The fight to pry education loose from “separate but equal” started at the graduate level, where facilities were too scarce to be made equal. Texas was sued in the seminal law school case, Sweatt v. Painter, a case that began in the courthouse where I spent my first career. The first thing the state court did was give Texas time to create a “Negro Law School.” This law school was staffed by practicing black lawyers, not the widely published scholars found at any top law school like the University of Texas.

In 1950, the Supreme Court cut though this transparent nonsense. On any level, schools are not “equal,” and the Justices on the Supreme Court, graduates of excellent law schools, knew that. It would be satisfying to end this by pointing out that the state courthouse where Heman Sweatt vainly sought justice was renamed in 2005 “The Heman Marion Sweatt Travis County Courthouse,” but the fight for equality goes on.

The “separate but equal” fiction finally died as a matter of law in the famous 1954 case, Brown v. Board of Education. Prevailing counsel in that case was Thurgood Marshall, who himself had been denied admission to the University of Maryland School of Law on account of his race. Later, President Lyndon Johnson appointed Marshall to the Supreme Court and today the University of Maryland Law Library is named after Marshall, the man not good enough to study there.

Brown killed segregation as a matter of law, but housing patterns continued segregation as a matter of fact. For a few years, there were attempts to achieve racial integration by having kids ride school buses, but that turned into a cultural wedge issue and was eventually beaten back. I personally bought a house in a racially integrated neighborhood in Austin both because I favored integration and because I would rather my son be able to walk to school.

K-12 schools in the United States have been re-segregating since 1988. It should be no surprise that predominantly minority schools lag in per pupil spending, teacher salaries, and results, whether measured by test scores or by college admission rates. The race that experiences the most going to school with children of the same color is…the “white” race. That’s diversity in K-12, and it takes little imagination to see how segregating K-12 leads to mostly white universities.

Affirmative action as policy has barely survived the claim that it is discrimination against the oppressed white majority and therefore banned by the Fourteenth Amendment — the legal sword provided to freedmen seeking equality having changed hands. There are two policy goals served by affirmative action that remain legal, one clear and one a bit fuzzy.

The clear rationale for affirmative action is that it may be imposed as a present remedy for past discrimination. In those schools with affirmative action plans imposed by court order, those plans will remain until some white rights organization is able to bring a lawsuit and prove that the poison of racism has been eradicated root and branch or the order expires by its own terms.

A fuzzier rationale that began more as a make-weight than as a primary reason for affirmative action is balled up in the term “diversity.”

There is nothing fuzzy about the advantages of a diverse classroom for certain teaching tasks, says the man who has taught civil rights and family violence law and policy.

I am partial to the Socratic method, and a conversation about family violence is simply a different conversation with no women in the room. The same applies to conversations about enactment of and enforcement of civil rights laws in an all-white classroom.

The teaching advantage of diversity is related to the social advantage. In a top shelf university, there is as much learning going on among students as there is between students and professors. The content of the conversations among students differs when the students are all male and/or all-white.

Do I not betray a bias when I state a preference for having my class discussions leavened with diverse points of view? Perhaps, but respect for diverse points of view is the very foundation of democracy.

There are many ways to approach democracy just as there are many ways to approach autocracy, but the essential fork in the philosophical road between the two ideas — bottom up or top down? — is as open for discussion as all ideas are at a great university. It does not follow from that openness to having the debate that the two ways of understanding government are equal or that a professor does his or her students a service by pretending that democracy and autocracy are equal.

The great misunderstanding of the diversity rationale for affirmative action is embedded in a public debate that assumes the beneficiaries of affirmative action are minority students. That assumption is at least misleading but persons of my ilk consider it flatly false.

“My ilk” is that hardy minority that still stumbles along with the purblind view that one does not attend a great university for the purpose of getting a job. I quit the best job I had in my life to enter the University of Texas and I have every reason to believe my lifetime earnings are less than they would have been had I stayed in the data processing trade. I know for certain I took pay cuts to go from law practice to judge and from judge to teacher.

It is common for the judge to be the lowest paid lawyer in the courtroom. I knew that and still wanted to be a judge. When I took an entry level job as assistant professor, my salary went from $103,000 to $33,000. That is not opinion; it’s arithmetic. The value of working in a collegial group primarily devoted to searching for truth cannot be easily reckoned, but that was my motivation in both of my major career moves.

I am suggesting that the value of a top shelf liberal arts education is best measured by metrics other than money. I make that suggestion understanding that your mileage may vary and, if it does, you are in the majority at this time.

The U.S. has gone from measuring student debt in billions of dollars to trillions of dollars — or, at least, one and a half trillion with the meter still running briskly. It is more of a simmering crisis than mortgage debt was before the collapse of derivative instruments propped up by flaky mortgages gave us the Great Recession. Student loans are being similarly bundled now and the difference — we can all hope — is that the creation of SLABS (“Student Loan Asset Backed Securities”) is better regulated than the mortgage backed securities that blew up in and around 2008.

One policy result of the student debt crisis has been valuation of degrees by the size of the paycheck they command. Degrees in the arts come at the bottom of that scale and many social science degrees look scarcely better. At the very time when a degree in history is getting no respect, we have the president of the United States putting on a clinic in the many things that can go wrong when an executive acts in ignorance of history.

I can’t deny that what we call STEM (“Science, Technology, Engineering, and Mathematics”) is critical to all education and particularly higher education. But STEM without the social sciences and the arts will produce a society that may be diverse in terms of ethnicity and color and religion and all the other things we pour into the empty vessel called “race,” but still lacking in necessary skills.

STEM may show us how, but not why. And a world without the arts is a world without beauty as interpreted through as many sets of eyes as there are artists by as many means as there are arts. That understanding of beauty is a pursuit of the truth John Keats apprehended in his Ode on a Grecian Urn and it is, in the final analysis, the value of diversity.

Enrolled Cherokee, 9th grade dropout, retired judge, associate professor emeritus, and (so far) cancer survivor. Memoir: Lighting the Fire (Miniver Press 2020)

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