Emory Report

Mar. 15, 1999

 Volume 51, No. 23

Guinier measures 'atmosphere' in Women's History talk

Instead of despairing about her "humiliating" experience in 1993, Harvard law professor and former Clinton appointee Lani Guinier developed a "failure theory of success," which she explained to a couple hundred people in Tull Auditorium March 2 in her Women's History Month keynote address.

Guinier, who was appointed head of the civil rights division of the Department of Justice by President Bill Clinton, came under political fire from conservatives for her alleged belief in quotas and her support of affirmative action. After asking her to remain silent before the Senate confirmation vote, Clinton opted to withdraw Guinier's nomination before the vote was even held.

"My mother said it was a blessing in disguise--but the important lesson was not to internalize the criticism and rejection," said Guinier, who added that she was ridiculed not only for her supposed political beliefs but for her name, her looks and her background. "The point of Mom's lesson was not to take our own loss and sit with it, but to stand above and look at it from multiple perspectives."

What Guinier decided after doing just that was that she needed to travel the country and educate the country about what her convictions truly were. Those convictions, she said, could be summed up in a simple story about her son: one day she was looking at Sesame Street magazine with him when they came upon a page explaining voting. Six children were to vote on what game to play; four chose tag, and two chose hide-and-seek. When Guinier asked her son what game the children then would play, he replied: "First they'll play tag, then they'll play hide-and-seek."

"That was the essence of my controversial theories," Guinier deadpanned.

America's straight-majority, winner-take-all system of democracy often discriminates against minorities, Guinier said, and a solution could lie in "cumulative voting." Already used in other democracies worldwide and in U.S. corporate shareholder voting, cumulative voting is when each voter is given multiple votes and then allowed to distribute those votes however he or she chooses among several candidates.

"This is a way of assuring that the majority picks the majority of elected officials, but not 100 percent of them," she said.

Cumulative voting is one way of empowering minorities, something Guinier feels strongly about. "The experience of women and people of color is the experience of the miner's canary," she said. "The lesson of affirmative action was that the problem is in the canary, and the solution was to fix the canary. I want to move from fixing the canary to fixing the atmosphere in the mines."

Guinier explained how she observed male and female law students while a professor at the University of Pennsylvania and even surveyed the students to study their apparent behavioral differences. She found that two-thirds of first-year female law students never talked in class and were bothered by that fact (two-thirds of the male first-years talked regularly), but more distressing was that two-thirds of third-year female law students never talked in class--and it no longer bothered them.

"Perhaps another reason is men see law school as a game, and the goal is raise their hand first," Guinier said, even though they may not know exactly what they're going to say. As a result, she said, men learn to think on their feet, and they learn leadership skills and how to hold an audience. "The women thought they were in a learning environment and they needed to say something relevant; women would outline their responses and edit the outline."

A healthy learning environment, Guinier continued, is one way to "fix the mines." "We cannot rely on a meritocracy if it's defined as a 'testocracy,'" she said, "because it's a one-size-fits-all that cannot encompass the potential of all members of society to fix society's problems.

"The experience of those who are left out is the experience of insight; it helps us rethink the experience of being included," Guinier said. "The canaries are not just women and people of color but the disabled and all those who have a particular angle of vision to help us see the atmosphere in the mines."

--Michael Terrazas

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