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Affirmative Action and Reaction

Think Tank Transcripts:Affirmative Action and Reaction

ANNOUNCER: 'Think Tank' has been made possible by Amgen, arecipient of the Presidential National Medal of Technology. Amgen,bringing better, healthier lives to people worldwide throughbiotechnology.

Additional funding is provided by the John M. Olin Foundation, theRandolph Foundation and the Lynde and Harry Bradley Foundation.

MR. WATTENBERG: Hello, I'm Ben Wattenberg. On this special editionof 'Think Tank,' we will be talking one on one with Professor LaniGuinier of the University of Pennsylvania. Our topic is the heatedissue of affirmative action in America and what we should do aboutit.

Affirmative action and reaction this week on 'Think Tank.'

Joining us today is Professor Lani Guinier. Prior to her teachinglaw at the University of Pennsylvania, she was assistant counsel atthe NAACP Legal Defense and Educational Fund. In 1993, she wasnominated as assistant attorney general for civil rights by PresidentClinton. A media firestorm erupted over her views on election lawsand affirmative action, and President Clinton withdrew hernomination. She then published, 'The Tyranny of the Majority:Fundamental Fairness in Representative Democracy,' which became abest-seller in Washington, DC. And most importantly, I think, LaniGuinier has been a frequent panelist on 'Think Tank.'

At a recent discussion to celebrate 'Think Tank's' firstanniversary, comments by Professor Roger Wilkins and Judge RobertBork on affirmative action provided a rich sense of the issuesinvolved in the debate.

ROGER WILKINS (Professor of History, George Mason University):(From videotape.) I am here to tell you out of my own experience thatwhite people did not start doubting the abilities of black peoplewhen we started having affirmative action. White people have alwaysdoubted the abilities of black people. Now, this affirmative actiondidn't come down out of the sky to punish white men. We Americansdeveloped affirmative action because we had significant problems ofexclusion, of denial and of unfairness and of limited opportunity fora whole range of people.

ROBERT BORK (Legal scholar, American Enterprise Institute): (Fromvideotape.) Today in the United States, affirmative action applies totwo-thirds of the American population. Now, I think black Americansare the only ones of all the groups we have fit in here that have aclaim to affirmative action. I don't think women do, I don't thinkother ethnic groups do.

But it's going to be very hard to hold a -- I think the othergroups could end affirmative action right now. I think with respectthe blacks, it has to be phased out in some way that does not causegreat pain and suffering.

MR. WATTENBERG: Clearly, a big battle lies ahead. Shouldaffirmative action be reformed? And perhaps more important, how canAmericans navigate through this issue of civil rights in a civilmanner?

Lani Guinier, what do you make of this current tense situationabout affirmative action in the United States?

MS. GUINIER: Well, I think what's happening with the issue ofaffirmative action in many ways symbolizes what's wrong with publicdiscourse in general and the way in which we don't talk directlyabout issues of race or even gender. But indirectly, those issuesaffect the discourse, and because we are not confronting ourprejudices, and I don't mean that in terms of bias, but justpreconceptions and misconceptions, we have a conversation in whichwe're talking past each other. We use words and they mean verydifferent things.

MR. WATTENBERG: Why don't you give me some examples, concreteexamples within the dialogue on affirmative action?

MS. GUINIER: Well, I think, for example, for manyAfrican-Americans, affirmative action means an effort to openopportunities to people who have been excluded previously. And Ithink for many whites, affirmative action means the hiring oradmission of unqualified people based on race or gender.

Well, those are really very different assumptions. ForAfrican-Americans, they are not assuming that affirmative actionrelates to unqualified candidates. They are suggesting that peoplewho have been denied the opportunity to compete have to be given thatopportunity, and perhaps universities or employers have to berequired to go beyond ordinary employment routes in order to makethose opportunities available, whereas for whites I think theassumption is that the ordinary channels are okay, that the ordinarychannels are based on merit and that the ordinary channels areproducing or making available to people, on an equal or color-blindbasis, the opportunities to compete.

MR. WATTENBERG: Who's right?

MS. GUINIER: Well, part of the problem with the debate is thatboth are right and there are legitimate concerns on both sides of thedebate. And so because in this country, and this is my initial point,we tend to think of conversation in the frame of either a sports orbattle metaphor, that somebody has to be right and somebody has to bewrong, somebody wins, somebody loses, we don't think that maybe --

MR. WATTENBERG: We have food fights on television, right? And weall throw things at each other, right?

MS. GUINIER: Well, that's -- yes, when we get really juvenile.

MR. WATTENBERG: Right. Not on 'Think Tank,' but on other programs,right? MS. GUINIER: Absolutely. Absolutely not on 'Think Tank.'


MS. GUINIER: I think we need to shift the paradigm. I think wehave to see if there are ways in which we can identify the legitimateconcerns on both sides of the issue and then come up withalternatives that don't say one person or one group or one positionis right. It could be vaguely right, but that doesn't mean that wehave to ignore the ways in which another position is also vaguelyright. I don't think that it's helpful to just take a vote and -- asthey are proposing to do in California, and say, well, this is wrongand we're never going to allow this kind of approach under anycircumstances, because that by itself polarizes people to the pointwhere they can't hear each other.

MR. WATTENBERG: That California ballot referendum doesn't do muchmore, as I recall reading it, than rephrase the 14th Amendment andthe 1964 Civil Rights Act. And those are fairly absolute laws. Why --why -- what is wrong with restating the 14th Amendment and saying,but this time we really mean it for blacks and whites both.

MS. GUINIER: Well, I guess part of my problem with the approach byreferendum is that it is a direct referendum in which you are givingthe majority the absolute right to prevail, without taking intoaccount the views of the minority. And the difference in terms of aconstitutional amendment is that both the Congress has to approve itand then it has to be approved by the states. It's a much moredeliberative process. It is not simply an up or down vote that istaken on one day in one year that is going to govern decisions forthe rest of the century.

MR. WATTENBERG: But we already have a constitutional amendment.The 14th Amendment says 'equal protection under law,' and it doesn'tsay just for blacks or just for women, it says for everybody.

MS. GUINIER: Well, that's true. I think what is prompting theanimus or what is motivating the desire to have a referendum is thatthere is a backlash, or a sense that the way in which the courts havebeen enforcing the 14th Amendment is tipping the scales unfairlytoward one group compared to another. And if, and I think this is thepresident's point, if in fact that is happening because ofbureaucratic calcification or because of ways in which something thatwas done in 1965 doesn't make sense in 1995, then certainly it'sappropriate to reconsider.

But an across-the-board referendum, if it's being done as it is inCalifornia, in my view is really, it's sort of a battle cry. It's away of saying that people who are unhappy with one or two situationsor circumstances are now going to prevail across the board. I thinkwe need to have a much more context-driven conversation where wedon't have a universal solution or a simple solution for complexproblems.

MR. WATTENBERG: All right, let me ask you a question. You talkedearlier about the animus that seems to be growing, I guess you weretalking about among whites. And we have had this phenomenon of theso-called 'angry white male' that allegedly drove the elections intothe Republicans' hands in 1994. You've had -- I interviewed ReverendJackson recently, and he said he thinks the 1990s are going to belike the 1890s, sort of the post-Reconstruction era when blacks, ashe describes it, were re-oppressed. And he thinks this is a dreadfulmoment where people are scapegoating, and whites feel that this is avery important issue and they are getting angry.

Do you find the temperature going up in this country on the issuesgenerally of race?

MS. GUINIER: Yes, I think that the temperature is going up withoutthe sort of store of information going up to meet it, so that youhave people who are feeling very angry without a lot of informationto help channel their anger. I think what is happening is that a lotof Americans feel insecure, feel afraid, feel that they can't dependon their government or their employer to provide them some of thethings that they in the past depended on. They can't be sure thatthey can pass on to their children the same quality of life that theynow enjoy.

But I don't believe that the correlation has been made, except interms of political rhetoric, between the source of their anger ordisappointment and affirmative action.

MR. WATTENBERG: Lani, you had talked a little bit about thetenseness in the dialogue, and we just were touching on politics, andI was talking about my interview with Jesse Jackson. And he indicatedthat he was of a frame of mind now that unless he saw real evidencethat the Clinton administration was not going to back off, it soundedto me, at all on affirmative action, he would consider stronglyrunning a third-party effort against both parties, but it would hurt,obviously, the Democrats more than the Republicans. How would youcome out on that?

MS. GUINIER: I think that we need a real debate in this countryand that part of the problem with our present two-party system isthat we are denying the American people a genuine conversation onsome of these issues, because the politicians are so consumed -- it'snot that the politicians are ill-intentioned, but they are soconsumed with a politics of re-electability that we have lost thenotion of a politics of accountability.

I support the idea that everyone should have an opportunity toparticipate in the national dialogue, and sometimes the only way toget that opportunity is to run for office. I wish that were not thecase, but if Jesse Jackson feels that the only way he can get hisviewpoint on the sort of agenda is to run for office, then I thinkthat's a positive, because I don't measure what's good and bad simplybased on who's going to get elected and who's going to be defeated. Ireally see politics as an opportunity to have a genuine democraticconversation.

MR. WATTENBERG: We have heard, around Washington at least, insidethe beltway, that this situation seems to be tense enough that if infact there is a concerted effort to roll back affirmative action,that this could lead to turbulence and perhaps even violence in theblack community. Is that -- does that make sense to you? Is that --is it boiling that hot? MS. GUINIER: Well, I think that there is arage. Ellis Cose wrote a book last year called 'The Rage of aPrivileged Class,' and he was talking about the rage in blackmiddle-class, college-educated Americans. And I think that that rageis at the boiling point. I think that people have been afraid oftalking about their experiences because they are afraid, according toCose -- I agree with him, of being punished twice, first for beingblack and second for being angry, so that that has kept their viewsunder the surface.

And many white Americans are simply unaware of the deep feelingsof many blacks who are doing apparently very well, but are harboringtremendous feelings of resentment and of anger that they have beengiven no opportunity to channel so that the real --

MR. WATTENBERG: What is the basis for that resentment amongsuccessful blacks?

MS. GUINIER: I think there are a number of bases, and I haven'tstudied it as thoroughly as Ellis Cose.

MR. WATTENBERG: No, but just, you know, what you've picked up.

MS. GUINIER: I think the fact that they experience discriminationpresently, it's not something of the past. They experiencediscrimination not as being denied the opportunity to go to the samebathroom or being denied the opportunity to go to a publicaccommodation, but they experience it as micro-aggressions, as beingtreated differently, as being questioned, as having differentexpectations that are made of them compared to some of their otherpeers, of simply not being --

MR. WATTENBERG: For example? What are some examples of that? MS.GUINIER: Oh, the stories of blacks who, you know, who are in suits --I can tell you a story of a judge I clerked for, who was at aconference wearing a suit and a tie in Williamsburg, Virginia, andwas asked by a white gentleman to park his car for him, gave him thekeys and said, you know, 'Could you please take care of this?'

Well, that may seem trivial because, after all, nobody -- hewasn't hosed by police, but it is a sense of not being consideredequal and a sense of not being accepted and --

MR. WATTENBERG: Have you been discriminated against in your lifebecause of race?

MS. GUINIER: Yes, but -- but my approach is not to dwell -- Iguess I'm in a privileged position because I have had the opportunityto speak out, to write, to channel some of my sense of unfairness.And I have also had the opportunity to work as an attorney on behalfof people that I think have been treated even more unfairly than I.And so it's a very cathartic experience so that it enables you to puta lot of your own experiences into perspective. But I don't thinkthat everyone has been that fortunate.

MR. WATTENBERG: Would the same thing apply to a -- to use yourexample before -- a well-dressed black man who is passed by by ataxicab and doesn't pick him up?

MS. GUINIER: Well, that's the classic example.

MR. WATTENBERG: Yeah, I know. That's why I brought it up.

MS. GUINIER: That doesn't happen to me, first of all, because I'ma female, and second of all, I don't look typically black. So thatit's hard for me to speak on something that happens to other people,but it happens to my husband all the time, and therefore I have to goout and get the taxi. Now, you may say that's a small price to pay.

MR. WATTENBERG: No, I'm not saying that's a small thing. But I --what I wanted to -- I think it's a very big thing, but what happenswhen a black cabdriver passes by a potential black fare because hetoo knows the crime statistics and says it's five timesdisproportionate? How do you deal with that? I mean that's -- theblack cabdriver is certainly not a racist.

MS. GUINIER: It's not that the white cabdriver is a racist. See,I'm trying to get away from the notion -- we tend to think of racismin the George-Wallace-standing-in-the-schoolhouse-door mode. Andthat's not what I think is the problem. I don't think that people areconsciously harboring bad feelings toward other people. I think thatwe are subconsciously harboring assumptions that affect a group ofpeople in a way that denies them the same opportunity to compete. MR.WATTENBERG: Let me ask you this. We had a conversation on race andaffirmative action at the American Enterprise Institute not long agowith Judge Robert Bork and Professor Roger Wilkins, both of whom Iknow you know. Now, Judge Bork said he would really like to do awaywith affirmative action. He thinks that there are enoughanti-discriminatory protections that you don't need it. But he made avery interesting point, which was he said, if we can't do away withaffirmative action in some, you know, fairly moderate to quick way,then we ought to retain it only for blacks, because blacks really dohave a special and tragic history, obviously the slavery experienceand so on. But that he just said women, that's, you know, it is notthe same, it is different, certainly now. I mean you now have womenmore likely to go to college than men, for one example. How does thatsit with you?

MS. GUINIER: Well, it's an argument that has appeal in that manyAfrican-Americans do feel that the experience of slavery and theexperience of Jim Crow is an experience that no one else hassuffered. And so the notion that at least the country is going toacknowledge in some formal way that experience is important in termsof assuaging some of the anger and the bitterness that we werediscussing earlier that middle-class, not just poor blacks, feel.

But I disagree that the way in which you remedy unfairness is tosimply take those who have been most unfairly treated and bring themin. I think if we have been unfair, then we have to become fair, andthe way you measure fairness is the fact that everyone has an equalshot at competing.

And I think for women in particular, and especially your exampleof women in academia, you have women graduating from college andgetting into law school and then not doing as well in law school.They're not being mentored; they bring different needs or interestsor values to the law school experience, and their skills and theirpotential are not being realized. And as a result, you have men withthe same incoming credentials -- same LSATs, same undergraduate GPAs,same rank in class -- three times as likely to graduate in the top 10percent of the class as the women who come in with the samecredentials. And because the men --

MR. WATTENBERG: Haven't you written that that's because of theculture of the law schools, that they are sort of male-oriented?

MS. GUINIER: I think it's -- it's not just that it'smale-oriented, whatever that means. It's adversarial, it'shierarchical, it --

MR. WATTENBERG: Male-oriented, right? (Laughter.)

MS. GUINIER: But what I am saying is that it's not about ensuringthat the same number of women are in the top of a male-orientedhierarchy as are men. It's about rethinking the hierarchy. It's aboutrethinking what we are trying to do in training lawyers, becauselawyers are not just adversarial litigators. They are public andprivate problem-solvers, and every problem does not require a fightin order to resolve it.

I'm reminded, I spoke at the Global Ministries of the UnitedMethodist Church, and a man raised his hand and he said, 'You know,what you're talking about reminds me of what my wife has been sayingto me for the last 30 years of our marriage.' He says, 'You fight towin and I fight to resolve.'

So that part of what the experience of women is about is gettingus to rethink public dispute resolution, private dispute resolution,to become better adapted to 21st century problems.

MR. WATTENBERG: When affirmative action was first instituted inthe United States, there was an argument about it then, in the 1960sand the early 1970s. The people who were in favor of affirmativeaction said, don't worry, it's only a temporary remedy. Well, now aquarter of a century has gone by, roughly. I mean it's about 25 yearsor 30 years, depending on how you date it. How long? When is --whendoes temporary end?

MS. GUINIER: Well, in some ways, affirmative action is a veryconservative remedy. It is a temporary conservative remedy because itis accepting the conventional norms, the conventional admissionsstandards, the conventional criteria, and saying, well, we'll makeexceptions for some people who have been under-utilized in the jobmarket or in the admissions pool.

So in my view, perhaps it's time to reconsider the conservativenature of affirmative action. Maybe we need to go the next step andchallenge the conventional norms. So it's not about making exceptionsfor other people, it's about questioning whether the assumption thatthe ordinary course of business is itself fair and we just have toget more women and blacks and Latinos into that ordinary course ofbusiness.

MR. WATTENBERG: But do we want to live in a society where thejudgments are made about people, whether they're getting into schoolor going into a job or getting aid for a small business or whateverit is, that says, you get some because you're a woman, you get somebecause you're a black, you get some because you're Hispanic, you getsome because you're a Tongan, you get some because you're a SriLankan? I mean that --

MS. GUINIER: Is that our vision?

MR. WATTENBERG: -- it seems to me that is so contradictory to theessential nature of what American life and experience has been about.It's been about treating individuals fairly, not cutting up the piefor groups. I mean that's what Lebanon did. They cut up the pie bygroups. MS. GUINIER: Well, but you know what's so interesting? Iagree with what you're saying except as it applies to the past. Ithink that in fact America is not in reality in our past abouttreating individuals fairly, and that's the reason we need remedies.

Now, you may object to the particular remedies, and I'm happy tohear what your alternative remedies are. I'm not committed to aparticular remedy, especially one as affirmative action, that I thinkis actually very conservative. But we have to accept the fact thatsome remedy is necessary because we have not treated people asindividuals. Blacks have not been treated as individuals for thefirst 300 years of their experience on this continent. So that it isa vision, yes, but it is not a reality.

MR. WATTENBERG: Okay, thank you very much, Lani Guinier.

MS. GUINIER: Thank you. I had fun.

MR. WATTENBERG: Yeah, I did, too. And thank you. Please send yourcomments and questions to: New River Media, 1150 17th Street, NW,Suite 1050, Washington, DC, 20036. Or we can be reached via E-mail And thank you.

For 'Think Tank,' I'm Ben Wattenberg.

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Additional funding is provided by the John M. Olin Foundation, theRandolph Foundation, and the Lynde and Harry Bradley Foundation. END

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