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Still Having Her Say

Still Having Her Say

More than a decade after becoming a household name, Harvard Law professor Lani Guinier holds true to her beliefs, principles.

By Ronald Roach

That Lani Guinier is one of the most publicly visible and outspoken scholars in the American academy should not come as a surprise to anyone who has followed her career or read her books. The first and only African American woman to hold a tenured faculty position at the Harvard University law school, Guinier has put her visibility to use by speaking out on issues of race, gender and democratic decision-making and by urging honest public discussion on these issues.
In July 1998, Guinier joined the Harvard law school faculty. At Harvard, she teaches courses on professional responsibility for public lawyers, law and the political process, and critical perspectives on race, gender, class and social change. Interestingly, her Jamaican-born father, Ewart Guinier, had been the first chairman of Afro-American Studies at Harvard in 1969. The elder Guinier, who was a labor organizer and lawyer, had attended Harvard as an undergraduate in the early 1930s, but left disenchanted after experiencing considerable racial discrimination.
Prior to her Harvard law school appointment, Guinier had been a tenured professor at the University of Pennsylvania law school in Philadelphia, Pa. A civil rights attorney during the late 1970s and 1980s, Guinier had worked in the civil rights division in the U.S. Justice Department during the Carter administration and the NAACP Legal Defense Fund, where she headed the voting rights program.
In 1993, Guinier came to national prominence when President Bill Clinton nominated her to head the civil rights division of the Justice Department. After conservatives crusaded against the nomination over her views on proportional democratic representation and voter participation, the nomination was withdrawn without Guinier having the benefit of a hearing to defend her ideas.
Guinier is the author of The Tyranny of the Majority; Lift Every Voice: Turning a Civil Rights Setback into a New Vision of Social Justice, and the co-author of The Miner’s Canary: Rethinking Race and Power and Becoming Gentlemen: Women, Law Schools and Institutional Change. In recent years, she and collaborators have launched Web sites, and, to promote public discussions on race and gender equity.
Black Issues spoke to Guinier at her law school office this past January.

BI: As we celebrate the 50th anniversary of Brown v. Board, how would you characterize the progress we’ve made in the march toward racial equality?

LG: As a Black person, I certainly would prefer to be born now than before 1950, which is when I was born. And yet in some ways I feel we’ve made progress; things are better. You don’t hear the same overt bigotry being proclaimed without apology.
But in other ways I wouldn’t want to trade the experiences that I’ve had over the past 50 years for a chance to be part of the new generation that’s trying to continue to remake America. Because in some ways the challenges that we faced in the 1950s and 1960s were more clear. And there was a sense of community and a sense of collective commitment and consciousness that was affirming. Where as now, I think students feel very torn between the call to improve themselves individually and the tension that they have looking at the rest of the Black community and seeing that so many of their relatives or their friends, their peers, are being left further and further behind. There’s a sense of confusion and paralysis.
BI: Are you optimistic that we will see continued progress for racial justice?

LG: Of course, I’m always optimistic. I think I read somewhere that when you consider that chattel slavery for centuries had been accepted, and now in the year 2004 it’s considered universally condemned, that shows that in the space of 150 years our understanding of justice has expanded. So maybe that’s an example.
On the other hand, the fight against slavery was clear. And the fight against institutional racism, or the way in which racism is used to justify poverty in this society — the relationship between race and class, or race, class and geography — is deeply embedded in our constitutional structure, in the foundations of our political and economic system, and yet it is not as visible. And so it makes the challenges more complicated.

BI: Looking back on 1993 when the Clinton Administration failed to support your nomination as the civil rights chief for the U.S. Justice Department, do you think the public discourse on civil rights changed for the better? Why or why not?

LG: I think it’s changed for the better. I think in 1993 people were really intimidated by the right-wing assault and by the co-optation of the rhetoric by the conservative groups that were mounting a challenge using the rhetoric of color-blindness. Where as by now, I think people understand the mood and are better prepared to respond.

BI: How could the Clinton Administration have better handled your nomination?

LG: By not backing down. First of all, there was a great op-ed in yesterday’s (Jan. 29, 2004) New York Times by Robert Reich. He was describing the difference between the Democrats and the Republicans. This is a long way of answering your question. But he said that the Republicans have developed a conceptual frame that organizes their ideas in relatively simple and accessible terms around the notion that success is defined individually by hard work and personal responsibility, and failure is defined collectively. He doesn’t say this so I’m adding — Blacks with the aid of the federal government have stolen the American Dream. So, everybody can take credit for their own success because it’s a function of their individual hard work and when it comes time to explain failure you just figure out what Black person, or Latino, or gay person is getting more than their fair share of the federal government’s resources, and then that explains failure.
They have a very clear, simple taxonomy. And they have also been able to tap into a popular, grass-roots movement around social issues. So even between elections, they have a base that is mobilized, that supports their efforts. The Democrats, on the other hand, had especially in the Clinton years a charismatic politician with no base and with no frame that enabled people either to decode what the Republicans and the Right were doing, or provided an organizing frame that was visionary about the future.
Dr. Marshall Ganz, who is (a lecturer) at the Kennedy School, said to me just as Eisenhower legitimated FDR’s New Deal, Clinton legitimated Reaganomics. You had a Republican who governed using the assumptions of the New Deal, and then you had a Democrat govern using the fundamental assumptions of Reaganomics. And they tweaked the assumptions, but essentially, more importantly, they legitimated those assumptions.
And Clinton said the era of big government is over and Reaganomics became the standard by which we measure everything.
So what could they have done differently? They could have tried to develop a set of principles that they stood for, rather than just a set of short-term victories that they were using to define themselves. So they sacrificed principle for pragmatism. And in the end, they ended up without either, meaning they didn’t win long-term control of the government, of the House, the Senate or the presidency, and they no longer had any principles.

BI: Since your historic appointment to the Harvard law school faculty do you think your ideas have gotten a more positive and wider reading? Why or why not?

LG: I do think that the Harvard name has a certain resonance. It may be undeserved, but it does exist in part because it’s such a well-known brand. And also I think it’s just the sheer persistence of my efforts that I never backed off of my principles. And I think at some point folks are just curious because they wonder what is it that she believes so fervently.

BI: Some of your ideas have surfaced in discussions around the emergence of new democracies.

LG: Part of it is that my ideas were not all that radical. They were just unfamiliar because we have a provincial view of democracy. We define democracy by what the Founding Fathers — many of whom were also slave owners — thought was in the best interest of their particular vision of democracy. So, we are the ones who are limited.
People talk about American Exceptionalism, but I would call it American Provincialism. And if you look around the world in terms of democracy, the only countries that do what we do — the only countries that still use winner-take-all, single-member districts for all of their national elections are basically former colonies of Great Britain. Even all of the former colonies of Great Britain don’t do what we do.
So, a lot of the modifications, or the improvements I should say, the way of making election systems more democratic were just not known in the 1700s. They are known now, but we refuse to change. We’re still governing as if this were an eighteenth-century society.

BI: What’s been the greatest challenge of being a Harvard Law school professor?

LG: I’m not allowing people to put me on a pedestal. (People try) because Harvard’s got the brand. When I was first offered this professorship, I didn’t accept it. It took me two years before I left (the University of Pennsylvania), and part of the reason was that I didn’t want coming to Harvard to change me. It was really important that I could figure out a way to remain connected to the issues and the communities I cared about the most.
You can get caught up in the sense that Harvard is the royalty of the educational establishment, and then you start thinking about yourself as if you’ve inherited this position, or you were entitled to it.

BI: How would you describe the environment at Harvard law school for women and minorities?

LG: According to statistics — these are a little bit dated — from the American Bar Association (in) 2001, Harvard ranks at the bottom of its peer schools with regard to the hiring of women professors. I am still the only (tenured) woman of color professor at Harvard — six years later. On the other hand, we have a woman who is dean. So, it’s a game of inches.

BI: Is the new dean, Elena Kagan, bringing positive change to the law school?

LG: Well, we have an ice skating rink. … My point about the ice skating rink is that she’s not afraid of change. She is willing to invest in community building and providing space. The first thing she did was to expand the area right outside of what’s called Harkness Commons. So when it’s nice weather, which is a few weeks in September and April and May, students can sit outside with tables and chairs and talk to each other.
So she’s interested in promoting an atmosphere that is not only about studying and developing your intellect, but it’s also about creating social connections and reinforcing the sense that you are not just here as an individual, but you’re part of a community.

BI: Do you consider the community-building measures to be significant change?

LG: Yes. Prior to her administration, the governing ethos was one of was privatization, meaning everybody was encouraged to work independently, individualistically, and to measure their success based on what they individually accomplished, rather than how they contributed to the common good, or to the greater good.
I’m not saying that building community has solved all of the problems. I’m saying it’s a good first step. 

BI: Do you think there’ll be changes that go beyond the community building?

LG: You mean actually hire more women professors and not just build an ice skating rink? We’ll see who’s there when the rubber meets the road. It’s too early to say.
And not just more women professors, but I would like to have another woman of color. It could be another Black woman; a Latina, an Asian American woman. I would like to see more students of color admitted to the law school. I’d like to see more Black men admitted to the law school; there’s a real imbalance in terms of the gender ratio among Black students.
I would also like to see more students who are committed to public service, who define themselves as part of a larger community and not just lucky or entitled winners of a big career opportunity. When I (went) to law school, so many students thought that they wanted to change the world. They felt a commitment; they were passionate.

BI: You’ve been outspoken about the reliance of elite academic institutions on standardized testing in admissions. What do you propose as an alternative to reliance on standardized tests, such as the SAT? How would this proposal achieve racial and ethnic diversity at elite institutions?

LG: The basic point is that affirmative action has been a distraction from the larger crisis confronting higher education. The larger crisis confronting higher education involves the way in which elite schools have used pseudo-scientific methods to perpetuate the privilege of those who are already quite privileged. And the difference between what they’re doing now and what was being done in the 1930s and 1940s as well as the 1920s when my father (went) to Harvard College is that instead of calling it privilege they now call it merit. But essentially it functions in the same way, meaning it perpetuates those who are already privileged. The SAT correlates with not just your parent’s wealth, but your grandparent’s wealth, and it does not predict first-year college grades any better than your high-school grades predict first-year college grades. …
It doesn’t predict what’s really important, which is, what are you going to do for the larger society when you graduate? Are you going to contribute back to the society that has made possible your education? Even if you go to a private institution, society provides taxpayer subsidies in terms of tax-exempt status, the federal grants, Pell Grants and other ways.   
Higher education has become (as Dr. Anthony Carnevale pointed out at the affirmative action forum in which I participated last spring) a gift from the poor to the rich. And the Reagan administration convinced the larger society that the individual benefits from education more so than the society. The understanding had been the society invests in education because the society benefits when it has the more educated populace. The Reagan administration said, “Oh no, it’s the individual who primarily benefits from education and therefore the individual should pay for education.”
That was the justification for reducing federal support of education. At the same time, people believed that college is more important than ever so you have more people wanting to go to college. College tuition is going up because they’re getting the same government subsidies that they had before, and elite schools are trying to maintain their elite status using this pseudo-scientific measure that is marketed under the brand name of the SAT, the GRE or the ACT, etc.
What I’ve been arguing is that the experience of Blacks and Latinos who don’t do as well on these SATs is the diagnostic tool that (indicates) maybe we shouldn’t be using the SAT as the measure of merit.
So then what do we do instead? One (step) would be to reduce dramatically the role that the SAT is playing, and in law school the LSAT. The LSAT is in some ways the sun and the moon. In college, the SAT is just the sun. The Texas 10 percent plan, for example, accompanied by recruitment and financial incentives has diversified at least the University of Texas in Austin, which is the flagship school there, not only by race but also by class.
The Texas 10 Percent Plan has restored the levels of racial diversity back to the levels they were when affirmative action was being used, and it has prompted more class diversity. And the students who come in under the 10 percent plan actually outperform the students who come in under the SAT in terms of first-year grades. They have higher first-year grade point averages whether they are Black or White or Latino or Asian. The group with the highest retention rate — meaning the group that comes back after their freshman year to enter as sophomores — is Black women, which says to me that we have to be willing to experiment. I’m not saying the Texas 10 percent plan is a panacea; it’s an experiment.
So when you ask what’s the alternative, I think we should experiment. We should try lots of different ways of admitting students to connect our admissions criteria to our educational and our democratic mission. The process of experimentation and getting feedback from that experimentation will enable us to see what works and what doesn’t. The key is to experiment as opposed to being committed to this one size fits all testocracy.”

BI: How would you describe your most significant achievement as a scholar?

LG: That (question is) hard. You know why it’s hard? One of the things my mother always tells me — in some ways, my mother helped me get through 1993 because she always told me (not to) internalize criticism. But it wasn’t just that she told me not to internalize criticism, she gave me a lot of criticism so I was practiced in the art of handling the criticism and really taking it seriously.
The thing that she always hates about articles that focus on me is she thinks they’re too focused on me. So (in answer to) this question of what I have accomplished? Well, nothing really in the sense that I alone have done nothing. I can’t do anything alone. It’s about connecting to other people, and inspiring my students, mentoring my students, engaging with them in a critique in which they often push me to think differently.
So, I would say my biggest accomplishment is being able to collaborate with others and learn from them, and not to be afraid of making mistakes. 

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