Lani Guinier

Lani Guinier (IPA: [ˈlɒni gwəˈnɪər], born 1950) is an American civil rights scholar. The first black woman tenured professor at Harvard Law School, Guinier's work spans a range of topics, including professional responsibilities of public lawyers, the relationship between democracy and the law, the role of race and gender in the political process, equity in college admissions, and affirmative action.

Early Life & Career

Lani Guinier was born in 1950 in New York City. Guinier is the daughter of a Jewish mother, Eugenia Paprin, and the Jamaican-born scholar Ewart Guinier, who also served as Harvard professor (and chair) of the Afro-American Studies Department in 1969.

She wanted to be a civil rights lawyer. She tells an early story of being an 8-year-old member of her Brownie troop when they held a hatmaking contest. The winner was a girl whose mother was a milliner, a professional hatmaker, who made her daughter's entry in full view of all the participants. The rules were not fair, the young Guinier concluded, and because she was too young to be able to change them, she promptly resigned. Since then, she wrote, her life has been motivated by "a deep-seated commitment to democratic fair play--to playing by the rules as long as the rules are fair. When the rules seem unfair, I have worked to change them, not subvert them." Guinier graduated from Radcliffe College and Yale Law School.

After graduation, she joined the NAACP Legal Defense and Educational Fund (LDF) as an assistant counsel. She left the LDF for four years to serve as special assistant to then Assistant Attorney General Drew S. Days in the Civil Rights Division in the Carter Administration. She left the Justice Department after Ronald Reagan took office and rejoined the LDF, eventually becoming head of its Voting Rights project.

Nomination for Assistant Attorney General

Guinier is probably most well-known as President Bill Clinton's nomination for Assistant Attorney General for Civil Rights in late 1993. A combination of factors led to the failure of this nomination.

An intense media campaign by various conservative critics labeled Guinier 'anti-Constitutional' and 'a quota queen,' citing her views on proportional representation in local elections. In addition, Democratic Senators such as David Pryor of Arkansas and even Ted Kennedy of Massachusetts informed President Clinton that her interviews with Senators were going poorly and urged him to withdraw the nomination.

According to Clinton's autobiography, even Democratic Senator Carol Moseley-Braun of Illinois, the only African-American who was serving in the upper chamber at that time, urged the President to withdraw Guinier's nomination. President Clinton took the advice of these seasoned politicians and withdrew her nomination, claiming he was unfamiliar with her writing and that he didn't realize that she advocated pure racial quotas as opposed to affirmative action, even though he was close friends with Guinier for years.

Clinton's White House counsel, Bernard Nussbaum, later acknowledged that the President was in fact aware of Guinier's positions on these issues but thought that her overall resume would overcome such handicaps. The voting systems proposed by Guinier would arguably strengthen the chances of minority candidates getting elected but are opposed in most mainstream legal circles as going against the system of "one man, one vote" and instead having "one man, many votes", as Clinton notes in his autobiography. Liberals argue that the media blitz was notable for focusing on purported representations of Guinier's academic law review articles; her critics allegedly chose select excerpts from her academic work without context, reducing complex legal arguments (see below) to simplistic phrases (CJR 32:3, 36). Guinier was not allowed to defend herself in the media (NYT 6/4/93 p. A1), and most notably, the Clinton administration did not defend the nomination in the media before withdrawing it.

Guinier herself described the aborted process as "censorship imposed against me [that] points to a denial of serious public debate or discussion about racial fairness and justice in a true democracy" (1994:19).

A critical component of the Guinier nomination controversy was the issue of race. From an early article by libertarian attorney Clint Bolick in the Wall Street Journal headlined "Clinton's Quota Queens," and a Newsweek cover story titled "Crowning a 'Quota Queen'?", Guinier's name became linked to unpopular media images of quotas, affirmative action, and "welfare queens." Ironically, in her work, Guinier had explicitly rejected quotas in voting rights cases, and substantially criticized affirmative action. The unpopular racial images lingered, however, as did a focus on her work for "black power" rather than basic civil rights for all.

Guinier argues that in trying to productively and openly discuss race and racism, she was branded "race obsessed" and "antidemocratic." Much of her work is now dedicated to broaching issues of race and racism in public forums and discussions, such as the RaceTalks Initiatives, in the belief that more public dialogue, not less, is necessary.

Civil Rights Theories

Alternative Voting Systems

Guinier's own ideas were finally aired in part with her 1994 publication, The Tyranny of the Majority in which she laid out her lifelong and "deep-seated commitment to democratic fair play—to playing by the rules as long as the rules are fair...." She states: "To me, fair play means that the rules encourage everyone to play. They should reward those who win, but they must be acceptable to those who lose. The central theme of my academic writing is that not all rules lead to elemental fair play. Some even commonplace rules work against it." (1994:1)

In the book, she explains that much of her work is based on the writings of James Madison and other founding fathers, particularly Madison's warning about the tyranny of the majority that "'If a majority be united by a common interest, the rights of the minority will be insecure.'" When power remains in the same hands, she cites Madison, "'whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny'" (1994:3-4). A majority group—any majority group—she argues, can become indifferent to the needs and concerns of minority groups. A vibrant democracy, she concludes, doesn't settle for a "winner-take-all" mentality, but needs "a positive-sum solution ... an integrated body politic in which all perspectives are represented and in which all people work together to find common ground" (1994: 5).

In this work and others, Guinier suggests various solutions that will ensure that minority groups have a reasonable chance of representation. She makes clear that she is talking not only about racial minorities, but any numerical minority group, such as fundamentalist Christians, the Amish, or in the Alabama case, Republicans; she also makes clear that she does not advocate any single procedural rule, but rather that all alternatives be considered in the context of litigation "after the court finds a legal violation" (1994:14).

Some of the solutions she considers are:

• cumulative voting, a system in which each voter has "the same number of votes as there are seats or options to vote for, and they can then distribute their votes in any combination to reflect their preferences"--this system is commonly used on corporate boards in thirty states, as well as by school boards, and county commissions. In the case of Chilton County, Alabama (1988), cumulative voting gave a previously all-white-Democrat county commission its first black member, first three white Republican members, and first woman member.
• Multi-member "superdistricts" is another strategy which "modifies winner-take-all majority rule to require that something more than a bare majority of voters must approve or concur before action is taken." The Reagan administration approved the use of supermajority voting in Mobile, Alabama, where "the special five-out-of-seven" threshold remains today.

These strategies were and are probably the most controversial elements of Guinier's work since they demand that we reconsider the ultimate fairness of majority rule. She points out that only five Western democracies (including Britain) still use the 'winner-take-all' system, while Germany, Spain, Sweden, the Netherlands, all use proportional representation.

Revising Affirmative Action

Since 2001, Guinier has been working on issues of fairness in higher education, coining the term "confirmative action" to reconceptualize issues of diversity, fairness, and affirmative action. The process of confirmative action, she says, "ties diversity to the admissions criteria for all students, whatever their race, gender, or ethnic background—including people of color, working-class whites, and even children of privilege."

Because public and private institutions of higher learning are all to some extent publicly-funded (i.e., federal students loans and research grants), Guinier argues that the nation has a vested interest in seeing that all students have access to higher education, and that these graduates "contribute as leaders in our democratic polity." By linking diversity to merit, Guinier "confirms the public character and democratic missions of higher-education institutions. Diversity becomes relevant not only to the college's admissions process but also to its students' educational experiences and to what its graduates actually contribute to American society. (ChronHigherEd 12/14/01).

Academic Career

Teaching

Guinier was Professor of Law at the University of Pennsylvania Law School for 10 years, before being hired by Harvard Law School in 1998. She regularly lectures at top law schools and universities nationwide including Yale, Stanford, New York University (NYU), UT Austin, Berkeley, UCLA, Rice, University of Chicago, and over 100 others. She is currently a visiting professor at Columbia Law School.

Writing

Guinier has written six books, 29 law review and journal articles, and at least 25 newspaper editorials.

Guinier's publications include many law review articles and op-ed pieces, as well as her books:

• The Miner's Canary: Rethinking Race and Power (2002)
• Lift Every Voice: Turning a Civil Rights Setback into a New Vision of Social Justice (1998)
• The Tyranny of the Majority (1994)
• Becoming Gentlemen: Women, Law Schools and Institutional Change, 1995).

Civil Rights Projects

She is also involved in multiple civil rights projects, including The Miners Canary and The Racetalks Initiative.

Honors

She has been honored with various awards, including the Champion of Democracy Award from the National Women's Political Caucus; the Margaret Brent Women Lawyers of Achievement Award from the ABA Commission on Women in the Profession; and the Rosa Parks Award from the American Association of Affirmative Action.

She has received ten honorary degrees from schools including Smith College, Spelman College, Swarthmore College, and the University of the District of Columbia. She has also been recognized for excellence in teaching by the 1994 Harvey Levin Teaching Award at the University of Pennsylvania Law School and the 2002 Sacks-Freund Award for Teaching Excellence from Harvard Law School. In 2007 she delivered the Yale Law School Fowler Harper Lecture entitled, "The Political Representative as Powerful Stranger: Challenges for Democracy." In 2007, she was given the honor of speaking and marching on the campus of Grand Valley State University for Martin Luther King Jr. Day, following previous guests including Benjamin Carson and Michigan Governor Jennifer Granholm.

Quotes

• "My nomination became an unfortunate metaphor for the state of race relations in America. My nomination suggested that as a country, we are in a state of denial about issues of race and racism. The censorship imposed against me points to a denial of serious public debate or discussion about racial fairness and justice in a true democracy. For many politicians and policymakers, the remedy for racism is simply to stop talking about race" (1994:19).

• "Gifted with second sight, we can share our stories... build coalitions, develop a voice.... We shall speak until all the people gain a voice." (1994)

• "If we can't talk about race, then when we talk about crime, we're really talking about other things, and it means that we're not being honest in acknowledging what the problem is."

• "For those at the bottom, a system that gives everyone an equal chance of having their political preferences [by which she means political representatives] physically represented is inadequate. A fair system of political representation would ensure that disadvantaged and stigmatized minority groups also provide mechanisms to have a fair chance to have their policy preferences satisfied."

• "The absence of diversity is a valid critique. But the presence of diversity is not a sufficient solution."

• "Single member districts improve the prospects of minority representation only to the extent that there is substantial residential segregation at the appropriate geographic scale. Thus, for Latinos who live in barrios that are dispersed throughout a jurisdiction, districting does not capture either their real or potential power."

• "When asked, as I frequently am, 'Why do you call yourself black?' I say, I am a black woman whose Jewish mother taught me about the Holocaust and about slavery. I am a black woman who grew up 'black' because that was how others saw me and because it was black people who embraced my mother when she married my father in 1945. I am a black woman who grew up celebrating both Passover and Easter, and who still occasionally sprinkles Yiddish words in my speech." (1998: 67)

References

• Clinton Bolick, "Clinton's Quota Queens," Wall Street Journal (op-ed), April 30, 1993
• "Clinton faces liberal backlash as he drops civil rights radical," The Times (London, England), June 4, 1993, 14
• "Clinton ready to abandon civil rights radical; Lani Guinier." The Times (London, England), June 3, 1993, 13
• Lani Guinier, The Tyranny of the Majority (Free Press: 1994)
• Lani Guinier, Lift Every Voice: Turning a Civil Rights Setback into a New Vision of Social Justice (Simon and Schuster: 1998).
• Laurel Leff, "From legal scholar to quota queen: what happens when politics pulls the press into the groves of academe," Columbia Journalism Review 32:3 (Sept-Oct 1993), 36

NY Times, 6/4/93 p. A1

• "Specter of Guinier Haunts Clinton’s Handling of Civil Rights Pick," The Fresno Bee, (Fresno, CA), December 2, 1997, B5

External links

• Guinier's publications at the Harvard site Bibliography
• Substantial list of Guinier's publications with online links to various articles
• The Miner's Canary project
• The Racetalks Initiative
• Interview with Lani Guinier in Dollars & Sense magazine