Lani Guinier

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Lani Guinier (born 1950) is one of the foremost civil rights scholars in the United States today. The first black woman tenured professor at Harvard Law School, Guinier's work spans a range of topics including the 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.

A graduate of Radcliffe College and Yale Law School, Guinier worked as a civil rights attorney for more than ten years including seven years as a litigator for the National Association for the Advancement of Colored People and a stint in the Civil Rights Division of the Carter Administration as special assistant to then Assistant Attorney General Drew S. Days. Before being hired by Harvard in 1998, she was Professor of Law at the University of Pennsylvania for ten years. Guinier is the daughter of Jamaican-born scholar Ewart Guinier, who also served as Harvard professor (and chair) of the Afro-American Studies Department in 1969.

Guinier's publications include many law review articles and op-ed pieces as well as her books The Miners 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), and Becoming Gentlemen: Women, Law Schools and Institutional Change, 1995). She is also involved in multiple civil rights projects, including The Miners Canary and The Racetalks Initiative.

Guinier is probably most well-known as President Clinton's nomination for Assistant Attorney General for Civil Rights in late 1993. After an intense media campaign by various conservative critics labeled Guinier 'anti-Constitutional' and 'a quota queen,' President Clinton later withdrew her nomination, saying he was unfamiliar with her writing.

She later spoke of her belief in a "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).

Guinier responded in part to critics 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 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:

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 surfers; 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.
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 alternative democratic strategies.

A critical component of the Guinier nomination controversy was the issue of race. Guinier argues that in trying to productively and openly discuss race and racism, she was branded "race obssessed" 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.

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).

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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."

"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."

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