I found this going through a bunch of old files of “misc” stuff that I never organized into an actual file.
Larry Cata Backer* Executive Director, Tulsa Comparative & International Law Center, Professor of Law, University of Tulsa College of Law; B.A. 1977 Brandeis University; M.P.P. 1979 Kennedy School of Government, Harvard University; J.D. 1982 Columbia University University of Arkansas at Little Rock Law Review Summer, 1999
Our goal must be fairness. Fairness is a condition with perhaps an immutable definition but with a complex and transitory application. Fairness tolerates difference, but fairness ought not to tolerate disadvantage, either within a group or between groups. Fairness can be a trap and a cover for promoting separation. I mention only one problem here, that of the measure of fairness. Much has been made of the difference between equality of opportunity and equality of result. n105 Both contain within them culturally significant risk. Equality of opportunity as a measure of fairness contains strong leanings toward sameness. It suggests unity and minimizes difference yet provides little in the way of mechanisms for mediating situations where difference has an effect on the quality of opportunity. It can provide less protection against abuse by the dominant in a society of difference. At its limit it can suggest implosion of difference and provide a potent cultural weapon for involuntary assimilation n106 and disappearance. n107 On the [*875] other hand, equality of result as a measure of fairness contains strong leanings toward difference. It suggests separation and minimizes sameness yet provides little in the way of mechanisms for mediating situations where difference would overcome any sense of meta-group cohesion. It can provide less protection against abuse by non- dominant groups and can result in reverse hegemony. It suggests the power of cultural veto by the smallest minority. It thus contains the danger of providing little protection against the unfairness of the smaller (instead of the larger) groups. At its limit it can suggest explosion of difference and provide a potent cultural weapon for separation. n108
Fairness requires that we be willing to acknowledge as part of our cultural common sense that we all are part of the same group. Without a master unity, our differences can overcome us. Concentrating on what pulls us together as a group vitiates the strength of what distinguishes us as people. This is no task reserved solely for the group suffering disadvantage, but is the greatest challenge to the group imposing disadvantage on others. To suggest that no such meta-commonality exists is to suggest separation and disunity. Without a commitment to cultural unity, there is no point in engaging in dialog.
The penalty for rejecting an affirmation of sameness is the loss of the means of speaking in culturally significant ways; the ultimate penalty for rejection of sameness at some level is separation. Unless we acknowledge our differences within a context of shared culture at some meaningful level (and not at some abstract level of meaninglessness) we increase rather than decrease the separation effects of difference. Groups listen in culturally significant ways only to “family.” If your are not family, then you have nothing culturally significant to say. At its limit, rejection of sameness at a meaningful level suggests that as a result of difference we cannot [*876] speak the same cultural language. Babel and recent world history instruct us that the consequence is a scattering.