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Lani Guinier    

One of the Foremost Civil Rights Scholars in the United States; First Black Female Professor to Tenure at Harvard

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. Currently, Guinier is the Bennett Boskey Professor of Law at Harvard.

Her most recent book The Tyranny of the Meritocracy: Democratizing Higher Education in America was released in 2015.

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. Guinier was never allowed to defend herself against critics who chose piecemeal excerpts from her academic work and reprinted them out of context, reducing complex legal arguments to buzzwords and simplistic phrases.

Guinier was finally able to respond in part to these 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" (1994:1)

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.

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