By Jill Goetz
Fairness does not mean treating everyone the same, and diversity does not mean mixing predetermined numbers of people together -- be they women or people of color -- and stirring the pot. Instead, achieving a more equitable system of opportunity in America will require a "transformative agenda."
That was the message conveyed by Lani Guinier, University of Pennsylvania law professor, in an April 11 lecture before a packed house in Statler Hall Auditorium.
Guinier's been making that call since long before 1993, when conservatives interpreted it as a call for quotas and special treatment for people of color and derailed her nomination by President Bill Clinton to serve as assistant attorney general in the U.S. Justice Department.
In her evening lecture and at an afternoon session with the news media, Guinier said that while her views haven't changed much since 1993 -- she didn't favor quotas then and she doesn't now, but she remains committed to affirmative action and the need for fundamental changes in the electoral process -- those of most Americans haven't, either. They continue to view the issue of race as one to be avoided at all costs, she said; and when they do address it, they take either one approach to solve every problem or the wrong approach altogether.
"Can we really predict merit using one-size-fits-all tests?" asked Guinier, whose career has included serving as special assistant to the chief of the Civil Rights Division and as assistant counsel for the NAACP Legal Defense and Educational Fund.
To make her point, she cited the LSAT, a traditional yardstick for evaluating merit for law school applicants. In a study she conducted with colleagues at Penn law school, for nearly all students, their LSAT scores correlated not with later academic performance -- but with parents' income levels. That is, the higher the LSAT score, the higher was the parents' income.
"So, often, what they're testing for is wealth -- not for who can listen or who can advocate, but whose parents had enough money so that they could learn how to take the SAT and LSAT," Guinier said. "Is that merit? It sounds like a very arbitrary system to me. We are using proxies for wealth and calling it merit."
Guinier said affirmative action provides a way of providing alternatives to such one-size-fits-all measures of ability. "We need to find more adaptive ways of evaluating merit," she said, "of rethinking the whole process of selection. That's what affirmative action is all about."
The Penn study also suggested that treating every student the same is not necessarily treating them equitably, she said. In the study, the male and female students had entered law school with identical credentials, but by the end of their first year, the men had risen to the top of the class. Guinier believes this was a result of the varying success of the Socratic, "sage on the stage" style of teaching; she believes it works better with male than female students. The women students tended to listen, she said; the male students are more interested in being heard.
"Treating everyone the same is not treating everyone in a way that is going to bring out the best in these students," she said. Other studies have shown that alternative teaching approaches, such as having students work in groups, result in better performance by women students, she said.
But the problems of inequity go beyond the ivory tower and into the voting booth, Guinier said.
"I think the political process in this country is seriously broken. In our winner-takes-all majority system of government, 51 percent of the people get 100 percent of the power. We may have been the first democracy, but many other countries that became democracies later have learned not from our successes but from our failures; their elections are based on proportional representation rather than majority rule," she said.
Further, too few Americans even vote. "Ordinary Americans can change things when they get involved," Guinier said. "But our turnout figures are deplorable. Less than 40 percent of eligible voters participated in the 1994 election, and they elected the freshman Republican congressmen by a very small percent. That's not democracy."
Guinier has been speaking widely in the past year and is writing a book about her experience of, as her son calls it, "being dumped by the president." When asked if it had made her bitter, she said it had made her not bitter, but sad, because it was a "missed opportunity" (without benefit of a Senate hearing on her views). Instead, she let it create new opportunities, she said.
"I have to tell you that my 'dis-appointment' has had some very positive personal consequences," Guinier said. "It has given me the opportunity to come before you and speak about those same ideas that got me in so much trouble in '93."