Fairness Impact

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.

3 thoughts on “Fairness Impact

  1. Rishee Batra

    In theory debates when would you want to read cards instead of just making analytics? And I don’t understand how a team running an illegit counterplan or something hurts the idea that we are all part of the same group or prevents us from acknowledging our differences

  2. Scott Phillips


    I doubt you would ever read this to impact conditionality bad. You would read this most likely as part of a “framework” argument where the other side has either critiqued the idea that fairness is a good goal, or where they have said some other form of critical education is more important than fairness because it “outweighs” with some sort of real world violence impact.

  3. Ben

    Lulz, paragraph right under:

    “We must expect to fail. To speak in culturally significant speech is no guarantee that our vision of what ought to be will become what is. Perseverence is a necessary ingredient of meaningful culturally significant speech. But an equally necessary ingredient is the willingness to question the validity of one’s own views of fairness. As important is the ability to hear the culturally significant speech of others. Groups must be as willing to effect change within one’s own group as they are to seek change in others. In a world of fluid difference one cannot ask one group to do what another will not.”

    and a couple paragraphs under that

    “The cultural detritus of half a millennium of African slavery cannot be overcome in a mere century. The formal work of lawyers, legislators and judges, the dismantling of the official markers of difference disparity is hardly enough to complete our project. We must capture the hearts of people and not be satisfied or fooled by their gestures. n111 This overcoming will require the blood of many martyrs. Much blood remains to be shed. It requires the voice of many millions repeating, by word and deed, a new cultural language of racial re-conception. Thus is the power inherent in the act of the scattering of language to keep us apart. Thus also is the human limitations of speaking shared conceptualization of sameness and difference. The brightest example of this power and these limitations remains the Jews. The transformation and re-transformation of the Jews during last two millennia is breathtaking. n112 They have been categorized as race, religion, ethnicity, language-and none of these-by the dominant societies in which the Jewish people have sought to settle. Today’s model minority is yesterday’s despised example of sub-humanity and tomorrow’s lethal threat to the identity of the majority-and other minorities-with whom they share space. n113 The only sure solution, the [*878] final solution, for difference is disappearance. Here again, the Jews teach us that even disappearance through assimilation, and the reconceptualization of difference may be illusory. n114”

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