Reaction Paper for

Making All the Difference:

Inclusion, Exclusion, and American Law

Written by Sandra L. Nelson

Martha Minow, author of Making All the Difference: Inclusion, Exclusion, and American Law, details the legal and political perceptions and their contrasting approaches to "difference." Minow further examines how unstated assumptions that affect our view on the "different," also affect the inflexibility of our legal system.

The author begins by describing the dilemma of difference. Minow (p. 20; ch. 1) explains the dilemma of difference in question format: "…when does treating people differently emphasize their differences and stigmatize or hinder them on that basis? And when does treating people the same become insensitive to their difference and likely to stigmatize or hinder them on that basis?" Throughout the book, Minow applies the dilemma of difference to the legal system and the political arena.

Using historical contexts and the evolution of unstated assumptions, the author supports her theory that the legal system is a crucial element in changing views of "different." Minow examines the evolution of unstated assumptions in the cases of Plessy v. Ferguson and Brown v. Board of Education of Topeka. Both cases were fighting to exercise their rights as stated in the 14^th Amendment of the Constitution (requiring every state give equal protection under the law to all persons, without regard to race).

The U.S. Supreme Court in Plessy v. Ferguson ruled that the Constitution begged for equality of all citizens. Under the same ruling, the Justices granted constitutional sanction to the "separate but equal" doctrine. This permitted segregation as long as the facilities were equal. Minow examined how the Justices individual perceptions and unstated assumptions of "difference" affected their ruling (pp. 64-65; ch. 2).

Sixty years later (1954) in Brown v. Board of Education of Topeka, the U.S. Supreme Court ruled quite differently. The Justices determined that the "separate but equal" doctrine had no place in public education. Minow suggests that the unstated assumptions and perceptions of the Justices affected their view of the meaning of the 14^th Amendment of the Constitution. Due to the Plessy ruling, it took numerous lawsuits, federal legislation, and the effort of the civil rights movement to dismantle the southern legal system that became deeply rooted in racial segregation (p. 64; ch. 3; p. 132; ch. 5).

These two cases are just two examples the author uses throughout the book to support her theory that perceptions and unstated assumptions of "different" affect legal rulings. Minow uses three contrasting approaches (abnormal-persons approach, rights analysis approach, and social-relations approach) to examine contemporary legal theories and arguments. Within the abnormal-persons approach and the rights analysis approach, the unstated assumptions and perceptions are blatant in how they affected the judges' rulings. The social-relations approach is an alternative to traditional legal treatments of difference. This alternative approach emphasizes learning the perspective of another (p. 379; Afterword).

Minow's well-done overview of how society defines "difference" as something inherent in others is the backbone to her theory. Society tends to look at what is different from the norm, rather than looking at what is the same. Unstated assumptions of "normal" and "different" are found in the legal system, the political realm and institutional policies. One way Minow suggests to perpetuate change is to understand other peoples' perspectives. Altering the unstated assumptions that exists in our society is a way to address the dilemma in difference.

The author did a thorough interpretation of what "difference" means and the dilemma for individuals who happen to fall into the various definitions. She supported her explanation of prejudice due to stereotyping (based on unstated assumptions and perceptions) through examples of legal arguments and theories. These practical illustrations strengthened her interpretation of the dilemma of difference. Unless we change the unstated assumptions and the perceptions, prejudice and discrimination will always exist.

This book was published in 1990, before the enactment of two major laws that helped bridge the gap that exists between normal and different. Legal arguments are still defining the application of the American with Disabilities Act of 1990 (ADA); however, this Act has opened the doors of opportunity for many people who are disabled. The Individuals with Disabilities Education Act (IDEA), and its Amendments in 1997, ensure that all children will receive an appropriate public education in the least restrictive environment. The interpretation and enforcement of the IDEA also continues in the courts. However, the implementation of these Acts has made the concept of inclusion more real. The more intergration that occurs in our society, the more individual perceptions and unstated assumptions that define "difference" will change.