ON THE RECORD: Lani Guinier

Last week she spoke about her views, her experiences this summer and her plans during an interview with Daily Pennsylvanian staff writers Stephanie Desmon, Peter Morrison and Charles Ornstein. Daily Pennsylvanian: What would you say was the toughest part of your nomination controversy? And what was your greatest regret? Lani Guinier:The toughest part was not talking. Basically, not being able to respond when The Wall Street Journal and some of the other newspaper columnists took on my writing and some of my ideas but distorted the ideas beyond recognition and distorted me in a way that even my own mother never recognized me. She kept saying, "Lani, they're using your name but I don't know who they're talking about." And I don't know if you're familiar with the White House policy but they don't want nominees to speak to the press until after, or actually until, the Senate confirmation hearing as a courtesy to the senators so that they hear from the nominee first. And the rule extends not just in terms of speaking on the record to reporters but also giving public speeches?.They basically want you to remove yourself from public view and from the "public controversy" while it's swirling around. So that was hard. And my greatest regret is related to that. I never got a hearing. I never had a chance to respond on the record in a formal Senate hearing to the distortion of my views. And the reason I regret not having had the hearing is not because I feel entitled to the job, but I did think of the Senate or the hearing process as an important public opportunity to have a national conversation about some of the ideas that I was writing about. And we never had that debate. The debate was shut down and I was sent home. DP: How would you have responded if you had the opportunity? Guinier: Well, one of things I'm doing now is that I'm publishing a collection of my Law Review articles which is coming out in March in a book called, The Tyranny of the Majority. And I have written an intro[duction] to the article in which I tried to lay out my ideas in one place. Part of the problem with the Law Review articles – in particular the two that became the subject of the most intense scrutiny – they are written for an academic audience. They were written in my case before I got tenure and they were written as part of a scholarly project where you scrutinize or explore intensely one or two or three ideas. And the challenge is to make an argument or to propose an idea and then in the process explore all the competing arguments [and] identify other scholars who have written in your area. So you tend to write this very dense, very nuanced piece of scholarship that if somebody sits down to just get your argument or get your idea quickly, it's impossible because that's not what you wrote. You didn't write it for someone who wants to read about the Voting Rights Act or my ideas about the political process in a five-minute sit-in. It was written for someone who was going to take an hour, hour and a half to read the article and then possibly look at the footnotes – not just to support ideas that I may have made in the text, but then take the footnotes as potential references for their own work. It's a very different kind of conversation. So what I've done with this intro to the law articles for the general public is try and write a different kind of article which is an article that is meant to be read quickly, that somebody could even skim and still understand what I'm talking about. I use examples from conversations that I've had with my six-year-old son so I'm trying to make sure that I'm not speaking over anyone's head. I don't mean to insult people by saying that, but to concede that legal academics tend to talk primarily to each other and not to the outside world. But I think that's a problem that I think we have to try and overcome. So I'm looking forward to having a larger audience debate these ideas because they now understand these ideas and not because they are taking sides in a partisan confirmation battle. DP: How has this process affected you as a person? Guinier: I think in some ways it has made me more comfortable with who I am because when you've experienced the nightmare of public humiliation and people calling you all sorts of names in public and in print there's not too much that somebody can throw at you. It's almost as if they've said it all. And so I've survived and now I can be who I am because, in that sense, whatever someone says to me I've heard it before. When I was a kid, my greatest nightmare was the first day of school: when I was in high school, I would go to class and I would be wearing pants – and this was a time when girls had to wear a skirt or a dress. Or I would think that I would be walking down the halls of my high school and I would be wearing a slip and I'd forget to put my skirt on on top of it. And so my greatest nightmare was this fear of being publicly humiliated, of being publicly scrutinized and having people all pointing at me and laughing. And obviously I have lived to survive that and in fact I mentioned this in a speech I gave. It was a dinner party and I mentioned it to someone who teaches psychology and he said "Oh Lani, you're cured." So in that sense I am who I am. DP: What are your plans for the immediate and long-term future? And do you ever see yourself re-entering the political spotlight? Guinier: Well, I hope if I re-enter the political spotlight I am more prepared for the political climate and that I am part of a team and not just being scrutinized in some sense as an isolated individual. I am not interested in running for office?as somehow a celebrity or a famous person. If I do something political it is because there are other people that I want to work with and we are committed to some political endeavor. I say that really as a way of saying I don't know what that endeavor is so I'm not thinking about re-entry. I'm thinking about grading my students exams and looking at their papers and being a good teacher. I am, of course, interested in having people read my Law Review articles when they come out in March and I am also writing another book for Simon and Schuster that I'm going to be working on, and I hope to be able to work with the Annenberg Center here at Penn. And the other project [is one] in which I look at the role of the media in shaping the conversation that we have about issues involving race and justice, because I really do feel that in many ways my nomination was an unfortunate metaphor for the state of denial in which we find ourselves on issues of race. We don't want to talk about it. There are many issues which we decided don't belong in polite conversation and I think as a result when conversations do take place they tend to be very polarized, they tend to be very argumentative, they tend to be seen as establishing hierarchies of victims and perpetrators. Because we are not used to having just civil discourse on important issues and so there's too much at stake in these conversations and I would like to slow down the process a little and open it up at the same time. So I would like to some way participate in whatever it takes to get a national conversation going that might have been possible at a Senate confirmation hearing. But since that didn't happen, I still think its still something that the country could benefit from. And not just over my particular ideas but just getting a lot of people into thinking in innovative ways about how to confront what W.E.B. DuBois called the problem of the 20th century – the problem of the color line. I don't know if you saw the Newsweek about two weeks ago, it excerpted something from Ellis Cosis book called The Rage of a Privileged Class. It talked about the fact that in many ways our public discourse functioned as a racial Rorshach test where you have one thing seen one way by people who are white and seen a different way by people who are Asians and still another way by African Americans and there's no intergroup communication. So everyone is perceiving what they think is the same phenomenon very differently but they don't realize that they are perceiving it differently and as a result they become, I think, unfortunately very polarized. DP: Has your life returned to normal since the withdrawal of your nomination? How did that affect your teaching and your family? Guinier: I think it has made me a better teacher. The fact that it [my life] has come back to normal has made me a better teacher. It was hard last spring when I had to teach and go through all this at the same time. That was in some ways unfair to my students, although I hope that it didn't affect the educational quality. I didn't get that impression, but it was very stressful for me to have to, in some sense, keep my day job while I'm being considered for another job. I think my family has weathered it fine except for my mother. My mother is still really upset. If it was torture for me not to be able to speak, I don't know what you would consider to be the next degree past torture, but it was really painful for her. So I think she suffered the most. My son, on the other hand, has given me?a great perspective on the whole thing. My son, for example, said to me that when he grows up he wants to be famous but not like I was famous. He said "Mom, remember when you were famous," and I said "What are you talking about?" and he said, "Oh yeah, when your picture was on the front page of all those newspapers. Well I want to be famous too one day but not like you. I don't want people to come up to me and the first thing they say is 'I'm so sorry.'" So he was obviously eavesdropping in his own way but then he reinterpreted it in a way that he could use it and move on. DP: What do you think of the state of race relations at the University of Pennsylvania from what you've seen? Guinier: I think that the University of Pennsylvania is no different than the country as a whole. We're in a state of denial here too, but at least at the Law School people manage a sort of civilized silence. I don't think it's necessarily a healthy silence, but it's civil, so you don't hear people engaged publicly in raucous debate. But, on the other hand, I think in private conversations with a lot of students, we have many wounded psyches walking around without any outlet or without any opportunity to open up and, in that sense, I think the rest of us suffer as well because they have a lot to offer in terms of teaching us how we can be a better multi-cultural institution, how we can incorporate more diverse points of view. For example, I have had students tell me about a professor who used a hypothetical in class which he incorporated in the hypothetical the word "nigger" and he was using that to explain the First Amendment, in the context of First Amendment problems, and it's a very large class and a lot of the white students mimicked the teacher and in reciting in class incorporated the same racial epithet in their hypotheticals. So that several of the black students sat there during the entire session and what they said is that they were getting hot, their body temperature was very hot but they were very cool, in fact passive, in terms of their participation in the class. They couldn't speak, they felt so chilled by what was happening around them, that they were in a class where people over and over were saying "nigger," "nigger," "nigger" and not a single black student responded. Well, I think that's unhealthy. I think that it would be much healthier if the students who are offended could speak out and say at the same class session these are the reasons that either your particular hypothetical is a problem or these are the reasons why I think the court's approach to this particular rule is unfortunate. But the conversation was one way. DP: What do you think the reason is that people are sitting there passively? Guinier: I think part is that we just don't have any practice. Senator Bill Bradley asked a question which I think is the right question. He said when is the last time any of us have had a conversation about race with a person of another race? And most people say it has been a long time or never. I have friends of another race, but I don't talk about race.? Race is a "four letter word." We don't say it in public. If you can't even have a private conversation with somebody of another race about race, how are you even possibly going to start that conversation in a class of 100 people where all eyes are on you and you are considered, because you are in a minority, to be speaking not only for yourself, but for your whole race, for your whole group? So you are performing when having a conversation, you're not just informing. DP: What is your opinion of the University's Racial Harassment Policy and what do you think of Interim President Claire Fagin's decision to replace it at the end of June? Guinier: I actually have never looked at the University's Racial Harassment Policy, so I couldn't speak in any informed way about the specific policy. I have spoken not to Claire Fagin, but to [Interim Provost] Marvin Lazerson, about the efforts that are underway to try and come up with a new policy. And what I have said to him in that context is that I think it is very important to include the students in the process of formulating the policy. And not only include them in terms of getting their input, but include them in terms of developing a policy that will lie primarily on the students for self-enforcement. I think it is very difficult for the University to play cop and also to be the judge. It could because of my legal training, but you really don't want to have the same institutional actor being the fact finder, the prosecutor and the jury, because you have a lot of role confusion there. I think it's much better if you can develop a more informal grievance procedure, which is my understanding they're working toward, where you try and establish, at least symbolically, what the University's values are. And then having announced those values, you rely on the students to work through them, but obviously in settings that are both informal enough so you can develop trust and settings where the emphasis is not on adversarial decision making, where the emphasis is not on pointing blame and identifying the guilty party and also exonerating the victim. I think in that sense, my legal training says that we should take it out of the lawsuit or courtroom context because again that just reinforces the notion I referred to earlier of people being permanently polarized. DP: You seem to have become a civil rights figurehead through all this. Do you feel that that's an ironic thing? Guinier: If it's true then I think it's ironic. I hope it's not true, because I especially take issue with the idea of a figurehead or a person who other people turn to when they're interested in a sound-bite, a simple rendition of an entire community's position. I am committed to making America better and I am committed to speaking out and I am committed to being a voice of conscience, but I really do resist the symbolism, both positive and negative, that other people have attached to me. DP: Bill Clinton has nominated people whom he has known from his past. Has your relationship with the Clintons changed from before your nomination to after your withdrawal? Guinier: Yes, it has changed. I think that it's difficult to have a relationship under the very public circumstances I've been through. I basically don't have a relationship with them. DP: Is there any feeling of resentment or anger on your part? Guinier: I would say more disappointment. Then I would use the term the way people suggest dis-appointment, that I was disappointed. I came back to Penn and they gave me a big queen of hearts that a lot of people signed and it was dedicated to Lani. I have been called a quota queen and they said, Lani, you're not a "quota queen," you're a "misquoted queen."