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Speaker: Heather Gerken, Professor of Law, Yale University
In her talk, Gerken advanced a view of minority empowerment that connected three important areas of constitutional law: federalism, equal protection, and free speech. At the core of Gerken's theory was a novel conception of diversity, which she calls second-order diversity. In our common understanding of diversity, or what Gerken calls first-order diversity, an institution is diverse to the extent its constituent groups mirror the composition of the population at large; a diverse institution is one in which all the different groups that make up the population are proportionally represented. Gerken put forth an idea of diversity on which the goal is to make our entire set of institutions diverse, so that we have variation across institutional bodies, with some institutions being "dominated by minorities." Citing majority-minority voting districts and minority-dominated school districts as potential examples of second-order diversity, Gerken drew lessons from the debate on federalism to argue for a strategy of "federalism all the way down" as a way to promote minority rights.
Gerken then applied her vision to issues of racial minority rights, on the one hand, and political dissent, on the other. In both areas, Gerken argued, creating institutions at the state and local level in which "global minorities" would be the "local majorities" would afford us benefits unavailable to us in our traditional conception of first-order diversity. So, for example, majority-minority districts would allow racial minorities to have the same sense of efficacy as majorities usually enjoy; instead of always being the "junior partner" who merely influences decisions, minorities would be in the position actually to make the decisions at stake. Likewise, second-order diverse institutions would give political dissenters the chance, at least on some issues, not just to negotiate with the majority to a decision somewhat closer to their own view, but rather to actually implement their own dissenting views. Gerken added that this way of dissenting, which she calls dissenting by deciding, also has the benefit of fostering the aims of the First Amendment in a novel way. Dissenting by deciding, in Gerken's view, adds to the marketplace of ideas by showing us real examples of how a dissenting viewpoint would play out in the world, as, for instance, in the case of San Francisco granting gay marriages.
A benefit common to the areas of racial minority empowerment and political dissent, Gerken believes, is the experience of the majority having the "tables turned" on its traditional position in civic life. Gerken argued that it was a good thing for everyone to occupy varying positions of power and influence over others. So, second-order diversity and federalism all the way down, in making majorities sometimes to be ruled by the minority, would also be beneficial to the majority.
Gerken admitted that her view had trade-offs. For example, by making our institutions second-order diverse, we would concentrate minority influence to only a part of our entire set of institutions. Gerken urged her audience nonetheless to take seriously the benefits of minority visibility at the state and local levels.
Many of the questions that followed the talk asked Gerken to delve into the specifics of the ideas she had sketched during the talk. Frances Kamm wondered whether Gerken would prefer segregated institutions. For example, would Gerken prefer segregated schools to integrated ones, since blacks would be able to rule themselves in "separate-by-equal" all-black schools? Kamm noted that one reason Gerken would not prefer a school system like this might be because of the value Gerken placed on white sometimes being put "under the black thumb," but argued further that this seemed an odd motivation; the goal of equal protection ought to be to advance the interests of racial minorities rather than to make things more difficult for racial majorities. Several others asked questions in the same vein, and Gerken made clearer her commitment to the value of having the tables turned: there really is a benefit, Gerken held, to the actual experience of standing in the shoes of the minority and having one's views and preferences overruled. A related question was whether second-order diverse institutions would actually lead to this sort of table-turning, inasmuch as we already have various majority-minority institutions but do not seem to see that kind of change in the majority for which Gerken hopes. Gerken resisted the certainty of this diagnosis, and noted that there has not been sufficient empirical investigation into the question. On a different topic, Lani Guinier worried that some of the minority-dominated institutions Gerken favors would not actually benefit those minorities who are really oppressed. For example, majority-minority racial districts may end up becoming "fiefdoms" for middle-class black politicians without benefiting poor blacks. Gerken felt the force of the worry but did not think it was a problem that her particular theory could solve.
Jiewuh Song, Graduate Fellow in Ethics, 2008-09