In this brief contribution, we highlight some of the ways Iris Marion Young's Justice and the Politics of Difference has served as both a touchstone and a challenge to feminist political theorists struggling to deal with the complexities of “equality” and community. We look briefly at three seemingly different cases, showing how Young's critique of impartiality in this book helps to illuminate what is wrong with the recent Supreme Court decision in Parents Involved in Community Schools vs. Seattle School District No. 1 et al. Footnote ¹ It also helps us clarify our thinking about how to remedy unequal access to reproductive technologies and shows how the recognition of group difference is an important counterweight to a false universality.

When the Court handed down its decision in Parents Involved, it seemed to us to manifest the prescience of Young's warnings in Justice about the dangers of viewing justice as “impartiality” and treating equality as the elimination of difference. At issue in the case were the plans by which two school districts—Seattle, Washington, and Jefferson County, Kentucky—sought to maintain a racial balance within each school roughly equal to that of the population of the school district as a whole. Both systems placed the vast majority of their students on the basis of residence and student choice, but assigned some students on the basis of race. In each case, the parents of white children sued, claiming that the race-based assignment was unconstitutional. Both circuit courts upheld the plans, but on appeal, the Supreme Court held that “allocating children to different public schools based solely on their race violates the Fourteenth Amendment's equal protection guarantees.”Footnote ² Chief Justice John Roberts argued that there must be a compelling governmental interest in order for the plans to survive the “strict scrutiny” required when a racial classification is at issue. Schools not only are not required to maintain a racial balance similar to that in their districts, but in fact are wrong to do so through race-based assignment. In response to the districts' arguments that local efforts were necessary to prevent resegregation as a result of de facto segregated housing patterns, Roberts contended that Brown vs. Board of Education established that “the Equal Protection Clause prevents states from according differential treatment to American children on the basis of their color or race.”Footnote ³ Then, in a statement that seems to us contrary to the established record, he asserted that it was “not the inequality of the facilities but the fact of legally separating children based on race” that was the basis of the Court's decision in Brown.

Justice and the Politics of Difference offers us a number of ways to think about (what is wrong with) this decision. One is what Young called the misleading idea of “impartiality”: the notion that there is a single vantage point and perspective available to rational beings, that it is the role of judges to articulate that perspective, and that the true meaning of “justice” is the “impartial” application of rules to everyone, regardless of the particularities of their situations. Young criticized “the ideal of impartiality in moral theory [that] expresses a logic of identity that seeks to reduce differences to unity.” And she argued that “the stances of detachment and dispassion that supposedly produce impartiality are attained only by abstracting from the particularities of situation, feeling, affiliation, and point of view” (1990, 97). Justice Roberts refused to see the difference between a system that denied black children admission to all-white schools by an absolute exclusion and plans that sometimes denied black and sometimes white children admission to a school in the interest of racial balance. For him, context was (and remains) irrelevant; “justice” requires only the “impartial” application of universal rules.

Young, by contrast, insisted on the importance of context, and on recognizing, naming, and according significance to (what might have been dismissed as “background”) relationships of domination and oppression. As opposed to an idea of equality as the elimination of differences, she argued for a “politics of difference”: “[E]quality as the participation and inclusion of all groups sometimes requires different treatment for oppressed or disadvantaged groups” (1990, 158). In a context of structural inequality, formal “impartiality” actually perpetuates domination and oppression. Indeed, what Roberts's careful, if specious, arguments show are precisely the evils of such impartiality in a situation of inequality.

To be sure, the Brown decision itself drew on a language of impartiality and universal principles. But in making its ruling, the Brown Court paid careful attention to context and acknowledged that contexts could change. While the briefs and oral argument in Brown had focused largely on what the writers of the Fourteenth Amendment intended with respect to separate facilities for blacks and whites, the justices concluded that this effort to discern the “original intent” of the Amendment's Framers was not dispositive. Few blacks attended any schools at all in 1868. What was relevant was the fact that, in the United States of 1954, “Separate educational facilities are inherently unequal.”Footnote ⁴ In making this judgment, the Court recognized both the role education plays in preparing a child for citizenship and the effects of segregation: “To separate [black school children] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.” The argument in Brown was about the meaning of the Equal Protection Clause, but the decision recognized not simply inequality but what Young (in Chapter 5 of Justice) would call “oppression,” that is, social relationships that led her to call for a “politics of difference” that required treating people differently in an effort to overcome the socially generated oppression.

Justice Stephen Breyer's dissenting opinion in Parents Involved vs. Seattle reflects the same kind of attention to context that is central to Young's analysis. In each of the following sentences from his dissent, Justice Breyer insists on the relevance of actual societal patterns, lived experience, and history: “The issue here is whether the Constitution permits, rather than prohibits, voluntary State action aimed toward reducing and eventually eliminating de facto school segregation.”Footnote ⁵ “The context here is one of racial limits that seek, not to keep the races apart, but to bring them together.”Footnote ⁶ “[S]egregation policies did not simply tell schoolchildren ‘where they could and could not go to school based on the color of their skin’ . . .; they perpetuated a caste system rooted in the institutions of slavery and 80 years of legalized subordination.”Footnote ⁷ “[Brown] sought one law, one Nation, one people, not simply as a matter of legal principle but in terms of how we actually live.”Footnote ⁸

Both the Court in Brown and Justice Breyer in Parents Involved acknowledge race as a category of oppression. Both opinions recognize that slavery, and the segregation that followed it, created a “caste” system that entailed more than simply inequality before the law, or numerically unequal representation. To acknowledge that history is to recognize systemic oppression. But Young would have insisted that that recognition (however progressive it is in 2007, let alone in 1954) is in tension with the assumption that the ultimate goal (of educational policy) is to treat everyone equally, or even to achieve real and lasting integration.

In Young's view, integration, in itself, will not get rid of, or even address, the relationships of domination and subordination that underlie and maintain such inequalities. Integration alone does not guarantee equal educational opportunity (and certainly not equal educational outcomes). Thus, in Chapter 2 (“Five Faces of Oppression”) and Chapter 6 (“Social Movements and the Politics of Difference”) of Justice, Young argued for both the acknowledgment and the representation of group differences. This might mean not integrated schools but, for example, all-black male schools in the interest of providing for the development of self-confidence or empowerment; schools for the deaf that are exclusively for the deaf; all-women's colleges in the name of affording women the group consciousness and solidarity that could combat the pervasive sexism of U.S. society; or a veto power for minority groups (particularly Native Americans) over issues affecting them. The decision in Brown, in speaking of a “caste” system resulting from slavery, gestured toward this understanding of systemic oppression that cannot be dismantled by nondiscrimination alone. A few, although faint (almost inaudible), echoes of that insight appear in Justice Breyer's dissent in Parents Involved. Young would probably have applauded Breyer's dissent for its attention to social facts rather than abstractions, but she would have insisted that attention to race must include dissimilar treatment when dissimilar treatment is the instrument by which to achieve lived equality. Neutral rules applied in a situation of inequality may mask, and therefore leave in place, structural dimensions of domination and oppression (1990, 18, 21–22).

Young's critique of distributive justice as a solution to social oppression was related to her critique of neutral principles as a remedy for inequality. She wrote that a “focus on the distribution of material goods and resources inappropriately restricts the scope of justice” because it leaves untouched the social practices that underlie people's differing ability “to participate in determining their actions and their ability to develop and exercise their capacities” (Young 1990, 21–22). She cautioned us that distributive justice is not identical to social justice: There is a difference between giving all equal rights and equal opportunity within the existing (and oppressive) system (i.e., distributive justice), and altering the conditions under which the inequality or oppression arises (i.e., social justice).

The power of Young's insight can be seen when it is brought to bear on discussions of people's differing opportunities to form families, and, in particular, to overcome infertility. The fact that infertility treatment is expensive, especially when it includes the use of in vitro fertilization (IVF), has led many ethicists concerned with equal access to health care to argue that considerations of justice require mandatory insurance coverage of infertility treatment, including some access to IVF (for example, up to three cycles, or with a lifetime expenditure cap of $30,000). Moreover, while the cost to an individual for treatment is great, studies have shown that premium costs (both in state systems and smaller private ones) would increase only modestly. Distributive justice, achieved through mandatory insurance coverage of infertility treatment, would seem to provide both the principle and the mechanism by which society could redress the preference given the wealthy in their efforts to form families.

Addressing infertility by extending health insurance coverage suggests, however, that infertility is an individual and private condition, the “luck of the draw” in terms of physical capability and condition. It obscures the fact that a significant amount of infertility stems from two quite different (and oppressive) social conditions that affect rather different populations: untreated pelvic inflammatory disease (PID) and delayed childbearing. Infertility resulting from PID (often the result of untreated sexually transmitted disease and HIV infection) affects mainly poor populations (disproportionately minorities). Infertility resulting from delayed childbearing disproportionately affects professional and white collar women caught in the “double bind” that presents them with the choice of conforming to the demands of the workplace and delaying having children, or having a child in their twenties and being perceived as not serious about their careers. Often portrayed as “solutions” to this dilemma, reproductive technologies in fact accommodate “the very social inequities which limit women's opportunities to simultaneously pursue careers and families equal to their male counterparts” (Goodwin Reference Goodwin2005, 52).

Peggy Cooper Davis (Reference Davis1997) argued persuasively in Neglected Stories that the right to form and maintain family ties is a right of U.S. citizenship. We agree. Mandatory insurance coverage puts the power of the state (and of society) behind the proposition that money alone should not determine people's ability to have a family. At the same time, however, a focus on insurance shifts attention away from socially produced causes of infertility and puts great emphasis on the genetic tie. Mandatory insurance for infertility treatment illustrates Young's contention that distributive justice can mask, rather than address and rectify, the structural inequalities underlying existing social and economic arrangements.

Furthermore, as Young insisted, overcoming oppression is not just about gaining access to material goods, or even to institutions; it is also about participation and empowerment. But what kinds of societal and institutional arrangements best promote such engagement? She offered a critique of both liberal individualism and of communitarian, face-to-face relationships as bases for democratic politics. As we noted, liberal individualism, particularly in its focus on distributive frameworks, ignores the differing contexts of, and constraints operating upon, seemingly individual choices. But communitarian relationships, often presented as the only meaningful alternative to liberal individualism, can lead, all too often, to an expected or enforced homogeneity, the assumption of transparency, and the denial of precisely those differences that characterize complex modern societies. Young insisted that a politics of justice necessarily involves confrontation with difference, indeed, with unassimilable and unassimilatable difference, the kinds of differences that are paradigmatic of urban life. In Chapter 7 of Justice (“City Life and Difference”), she put forward the city as a model arena in which people enter into civic space with their differences, rather than withdrawing into idiosyncratic or exclusionary homogeneous communities.

At the same time, and given her critique of individualism, Young was aware that the ability to enter into such arenas may well depend upon the existence of homogeneous communities that can “ground” or support individuals in those confrontations.Footnote ⁹ The truth of this insight is reflected in the fact that one key to the success of the National Congress of Neighborhood Women (NCNW) in enabling cross-ethnic solidarity among working-class women in Brooklyn was an acknowledgment of the women's rootedness in diverse ethnic-cultural communities and a careful structuring of ongoing face-to-face interactions that validated those differences.Footnote ¹⁰ It is worth noting, in fact, that Young suggested that it is precisely in the urban model of regionally based decision making that the strategies for group representation she called for in “City Life and Difference” should “be guaranteed by right” (1990, 253). In short, while the paradigm of entering into a civic space of difference is a powerful and compelling one, the experiences of NCNW and other relatively less-powerful groups remind us that Young's critique of distributive justice is as relevant to the context of democratic political participation as it is to material considerations. Simply calling for participation without addressing deeper structural impediments to such participation may also mask continuing inequality. As she noted, “the problems of atomism are the same, whether the atoms are individuals, households, or cities” (Young 1990, 250). Hence, her insistence on group representation as a corrective to what a number of feminist and other critics have identified as the pseudo-equality of a Habermasian public space.

Of course, Young's critique of distributive justice and, in particular, her views on group representation were not without their critics. Over the years, her interlocutors asked a number of important questions, among them: 1) How do we identify the relevant groups? 2) Who speaks for the groups? And 3) What about overlapping oppressions/memberships? Our purpose here has not been to attempt to solve these dilemmas and difficulties, regardless of how fruitful we find them and Young's responses to them. Rather, we hope, however briefly, to have provided some additional “real world” examples of the dangers of impartiality and of equality understood as sameness.

We began with a discussion of the trajectory from Brown vs. Board of Education to Parents Involved in Community Schools vs. Seattle School District No. 1, and argued that that trajectory illuminates the knot of complexity or irresolvable tension between universality and similar treatment on the one hand and oppression and different treatment on the other. In a society characterized by relationships of domination and subordination, that is, every known society, it is important both to hold onto the goal of equality and, at the same time, to resist the notion that equality means sameness or is achieved by similar treatment. Similarly, the attempt to address and redress the inequality in accessing new reproductive technologies by universalizing mandatory insurance coverage masks the unequal social conditions that themselves contribute to infertility. And the call for reforms aimed at removing formal barriers to electoral access and participation in the political process may miss entirely the need to create social conditions that empower both groups and their individual members.

How we will act to overcome conditions of inequality and oppression will change over time and will depend on circumstance. Because circumstances constantly change, we must ask, as Young did continuously in her life, her work, and in conversation with others, what do we do? How do we live our lives in the context of this political complexity? Young was clear that academic work alone is not enough; even academics working on questions of social justice must engage with the world independently of that work. And, further, that academic work alone cannot provide solutions: It is precisely because of these complexities that it is only from the interaction between activist and theoretical work that meaningful change will come.