A “Commonplace” Conversation with Lani Guinier

By Lise Funderburg

African American Review
Volume 30, Number 2, 1996

Funderburg: What do you hope to remedy with Commonplace, your recently established, not-for-profit group?

 Accomplish would be a better word; remedy sounds much too ambitious for the shoestring operation that we are presently. Perhaps in a year we might feel emboldened to discuss what we’re remedying. But at this stage, we are struggling to transform public discourse, particularly about issues of race.

We’re proceeding along several different axes at once. The first one is an academic research agenda where we are trying to develop a methodology for structured dialogue, for multiracial deliberation, for collective decision-making and collaboration among people of diverse backgrounds and perspectives. We’re designing focus groups to study competing hypotheses about the barriers to candid or honest public communication–particularly on race. And we’re testing two major theses. One is that you have to get people together to talk about race by providing them a mutual task that doesn’t have an explicit racial text. The second hypothesis we’re testing is that you have to confront, magnify, and explode stereotypes before you can get people to the point of trust and intimacy.

We then want to apply that methodology to public conversations that involve people in the media, public policy activists, to structure conversations–again across difference, not just of race or of gender, but of perspective and discipline–so that the journalists can learn how to see nuance and the academics can learn how to be more clear. In this take-it-on-the-road part of the project, we could actually try to intervene in local communities that are confronting conflict or–and this is where we’re more inclined to intervene–we could try to change the way the media covers the issue of race, because the media plays such an important role as the connective tissue in our national and local community.

Funderburg: Why does public discourse need to be restructured?

Guinier: We are operating from the premise–and it is not an original premise [laughs]–that there is a breakdown in our ability to talk to each other on a number of issues. Unfortunately, political discourse resembles, to a great degree, the worst excess of the adversary model of litigation, the “winner take all” model of sports, and the “only one of you is going to be left standing” model of war. When we use that structure to talk about something like race, it reinforces all the divisions and polarities we are experiencing on so many other levels, in terms of segregated housing patterns, people not going to school together or not watching the same television shows–basically, the prediction of the Kerner Commission from almost thirty years ago that we are becoming two nations, one white and one black. Even though it’s a more heterogeneous nation in some ways, it is still very segregated.

 How is it more heterogeneous?

Guinier: Number one, we can’t just talk about race in a context of black and white. We have to think about other people of color in a global sense and the relationship not just between whites and people of color, but among and within communities of color. Second, there has been some progress: There is at least the appearance of increased diversity–on college campuses, in public legislatures and city councils and school boards, and on television–in what we see as representational icons. On the other hand, much of that is superficial; it’s cosmetic, and it’s temporary. People may work in a multiracial environment, but then go home to a very homogeneous neighborhood.

Funderburg: Also, it seems that many multiracial environments are still tiered hierarchically. A company with a history of having white employees can say it’s become diverse, but what positions are held by those people who bring the “diversity”?

Guinier: Michael Lind recently wrote a terrific article in Harper’s on the haves and the have-nots. And he talks about the haves as the contemporary counterparts to feudal lords who are creating structures, both architecturally and figuratively, to barricade themselves from the rest of the population. Once you enter a major corporation, the headquarters of a major television station, a bank building–as soon as you leave the street–you enter a world in which most of the people are now the same.

Funderburg: In Commonplace’s first brochure, the suggested topics for debate are race, gender, class, and America’s future. What would we talk about on the second day?

Guinier: [Laughs.] Well, the first thing I have to say is it’s not a debate, okay? It’s a conversation. But it’s not just talk, it’s a predicate to collaboration. We’re searching for a vocabulary to express the idea that the way in which we presently communicate is very hierarchical. The communication, in some sense, describes a ritual in which the goal is to win–perhaps through persuasive argument, perhaps by demonizing your opponent, depending on the particular rules of engagement. Only one side can win. We’re trying to rethink the nature of this conversation so that the focus is not just on performance and on talking, but also on listening, mutual understanding, and mutual respect. We think that, through genuine conversation, collaboration will emerge.

Funderburg: When you talk about Commonplace and what “we” are trying to do, who is the “we”?

Guinier: I’m working with a number of people, some informally, some formally. I have a colleague at the University of Pennsylvania Law School who is an expert on mediation and alternative dispute resolution models. I’m working with a program officer at a foundation in New York and with graduate students in the psychology department at Penn who are the principal investigators for trying to develop this methodology. I’m trying to enlist the support of CEOs and other executives within major corporations who are allowing us to study their problems to try not only to learn about them as academics, but to develop an approach that is portable, that can be adapted by others.

Funderburg: You propose three possible models: National Conversations, Public Juries–a legal term–and Table Talks. What are these?

Guinier: Table Talks is our way of describing the focus group research– people sitting around a table talking to each other. It’s informal, it’s not highly public, but it’s among strangers. It’s an effort to study what will get such a group of people to a place that they’re not at yet but that they want to be at.

So it’s a project that assumes some preconditions: This is not for everyone and anyone. These are people who really are committed to a different kind of discourse.

The Public Juries are an application of the methodology. We haven’t conducted any yet. You mention that it’s a legal term, and in some sense that’s deliberate, because the jury is a democratic institution in which you have ordinary citizens participating in deliberation. We worried about the connotation that a public jury is deliberating to come to a verdict, because in the context of a trial that is their goal. This is not a trial, just as it’s not a debate. So the public jury is more like a grand jury that issues recommendations or takes testimony and really provides an opportunity to empower ordinary citizens, to give them permission to have a public voice.

Jim Carey, a professor at Columbia, calls the contemporary public conversation the equivalent of an academic tea party held in a football stadium–meaning it’s a very small group of people participating in a conversation in which only they know all the rules and use lots of jargon and shorthand, focusing primarily on process and in some sense dictating who’s winning and losing without discussing what’s at stake or the implications of either outcome. The assumption of the present model is that the “fans” are passive spectators who are watching all of this, entirely absorbed in the ongoing game. The problem is that the fans have turned off and the citizens are going home. The 1994 elections, which are hailed as this huge mandate for the Contract With America, were actually elections in which more than half the Americans boycotted the process.

Funderburg: And what was the average turnout preceding those elections?

Guinier: Well, unfortunately, the average turnout has been very low in mid-term elections. This was not unusual. About 38 or 39 percent of the eligible voters showed up. If we were to step out of our xenophobia and become true democrats, with a small d, we would realize that we are not the premier democracy and that we have a lot to learn from other democracies around the world, where twice as many citizens compared to the United States participate in elections.

 For example?

Guinier: Sweden. A number of the Scandinavian countries have larger voter participation rates. South Africa! In part, this has to do with the election rules: Ours are structured in an adversarial, winner-take-all fashion. But it also has to do with the way in which we conduct debate prior to the election. And that’s where Commonplace is trying to intervene.

Funderburg: Your greatest hurdle may be the legacy of language. You want us to use deliberation, not debate, because there’s a taint attached to debate. Or there’s a history attached to jury.

Guinier: You’re absolutely right that attention to language is very important. But the language is simply a proxy, a representation of a process that also reinforces argument as hierarchy, as combat. I should say that the adversary system–litigation to resolve dispute, the way we teach students in law school, the Socratic method–all of that plays a very useful role. This is not to suggest that there should never be conflict; we are not that idealistic. We are saying we need to incorporate a pluralism of approaches, that not everything has to be resolved in which I win and you lose.

I gave a talk about Commonplace to the Global Ministries of the United Methodist Church. A gentleman raised his hand after I spoke and he said, ‘What you’re saying is what my wife has been saying for the past 30 years of our marriage. She says she fights to resolve and I fight to win.”

Funderburg: So some of this falls along gender lines?

Guinier: Yes, I think there are gender linkages. This is not to say that all women are x and all men are y, or that no men have an intuition or a sympathy for cooperation. It is to say, however, that, for either biological or social reasons, many women–some men, but many women–feel marginalized and alienated by an argumentative style of communication. They see it, perhaps rightly or wrongly, as a game, but as a game that they don’t want to win. They don’t want to play! Which is not to say they don’t have useful information or that their questions are not relevant. That’s the point. We are marginalizing their potential contribution by relying exclusively on one way of communicating or deciding outcomes.

Funderburg: Is that why, in your race and gender class here at the law school, you rotate responsibility for leading the class?

Guinier: That’s part of it–and, in part, because different students bring different strengths not only to the facilitation of the project, but also to the rules of engagement. Who calls on the next person, and how much time can people speak, and what are the ways in which we can communicate? Some students may suggest we do role plays or divide up into smaller groups to create greater opportunity for people who are shy or who are quiet to participate. So in that sense it’s gender-linked, but it’s also related to the idea that in any conversation we have to be more attentive to process, that the quality of the process helps to frame the nature of the outcome. And what we may in advance think is the desired outcome may not be the actual outcome that we can also live with. It’s a process of learning in which, by giving the students so much responsibility, we allow them not only to make a contribution, but to learn differently.

Funderburg: When you and the dean of Penn Law School, Colin Diver, were interviewed together about your 1994 study on women’s and men’s learning differences at Penn, at one point he called the study “a piece of advocacy.” That seemed to have the potential to really polarize the conversation between you two. Would you agree?

Guinier: Yes, I think it was a dismissive comment. But in terms of how language polarizes and your example of the dean’s comment, I want to answer that in a second way. The dean has been very supportive of our research and in fact gave us permission to look at all of this data because he said he wants to know what is happening at the law school that he administers. So that’s another example of how language was not revealing of the whole picture, and suggested that he was an adversary when his actions were not dismissive.

Funderburg: What will keep people from resorting to polarizing comments or attacks–which may be human nature–even if they’re trying to have Commonplace conversations? When you were nominated for Assistant Attorney General and someone very publicly talked about your “wild hair”…

Guinier: Oh, yeah, my “strange hair.”

Funderburg: Was it about race or was it about your being a woman, or was it about difference in general?

Guinier: Well, there were so many examples of polarizing language applied to me that we don’t have to quibble over any particular one. [Laughs.] In fact, the columnist Ben Wattenberg, with whom I now work frequently, even though we disagree, called me a range of names at the time of my nomination: “The Czarina of Czeparatism . . . the Princess of Proportionality. . . .” He later invited me on a show he was hosting entitled Media Feeding Frenzies. And in some sense as a mea culpa, to show how he got caught up in it he started to read the list of names he had called me a second time! I had to stop him and say, “Look, the first time was enough!”

So that’s why I say that oftentimes our words or our choice of words are weapons. We think of public discourse as if this is gladiators going into the medieval wars, or we think of any kind of public policy difference as a duel in which you must kill your opponent before he or she kills you.

Funderburg: Can you think of any current issues or events that people need to talk about and not end up polarized?

Guinier: Yes, Affirmative Action. What do we mean when we say the words Affinnative Action? For many Americans, the term is a code for preferences based on gender, but primarily based on race, for unqualified minorities. So that race trumps qualifications. But is that what in fact people who are implementing Affirmative Action think they are doing? What does it mean to be qualified to do a particular job? Is there a relationship we are actually thinking of and are relying on and are comfortable with between the so-called credentials that we use as gatekeepers and the job that needs to be done and the ability of people to do that job? Going back to my study of women and men in law school is there a correlation between incoming credentials and performance first year? It turns out that the LSAT, which is the major “objective” indicator on which many law schools rely, is a very weak predictor of first-year performance–and that’s what it’s best at! It has no correlation with success at the Bar and being a contributing member of society.

But we have, in our performance-ritual discourse, elevated the score on the LSAT to a status that’s almost mystical. If you challenge it, you must be an atheist! In fact, it’s an efficient tool–there’s no doubt about it–and there is some correlation with performance, especially for those who are at the very high end of the scale; that is, those in the top one or two percent. But below that–meaning people who do well but are not stars–it is random who continues to do well at law school or at the Bar. We have terms–merit, qualifications, just like Affirmative Action on the other side–that need to be interrogated. What do we mean?

Now, at bottom, I think what we all mean is fundamental fairness. In a heterogeneous society that is committed to excellence, that wants people to do the job who are capable of doing it and are capable of doing it well, what is the best way of being fair?

 Fairness might also address the concerns of Affirmative Action beneficiaries who are troubled because of the suggestion that they were less qualified.

Guinier: This is an explicit premise of the way in which we conceptualize Affirmative Action. If Affirmative Action, by definition, means the preference for less-qualified people based on race or gender, it’s definitional. You can be differentially qualified, but in our hierarchical thinking, difference has to be better or worse; it cannot simply be different.

 Which brings us back to language. People are defining and redefining Affirmative Action all the time with language that sounds awfully bigoted. Then, when pressed, they claim to have misspoken. But that’s the point: People are misspeaking all the time, or saying things they would later take back if called on them.

Guinier: Okay, but that’s another premise of Commonplace’s substantive process idea. We believe you can’t have just one conversation on race or on Affirmative Action. The process of mutual understanding requires engagement; it requires an opportunity to think and reflect and come back and perhaps even change your mind. It requires the opportunity to clarify, if in fact you’ve been misunderstood. Because we are in a sound-bite culture, we define you by no more than three or four words–in my case, two: Quota Queen. It had nothing to do with what I had written, but it was a very useful, alliterated metaphor that served partisan purposes at the time.

And it was for this reason, in fact, that I was so committed to having a hearing, since a hearing is an opportunity for engagement. Not that people would agree with me, but they could at least listen to what I had to say and, in the process of participating, by empathetic or active listening, maybe rethink what they were saying or maybe respond in a way that would cause me to rethink what I was saying.

Many people are being spoken about and spoken for, but they’re not being spoken to and they’re not speaking. And that, in and of itself, is very dis-empowering and contributes to the sense of alienation and withdrawal that we see on so many different levels in our culture.

Funderburg: So Commonplace is just all about you! It’s all about that darn nomination, isn’t it? [Both laugh.]

 I would say that experience, without denying the personal effect, was confirming of views and fears and skepticisms I had well before that. I had been a litigator for years with the NAACP Legal Defense Fund, and one reason I left is that I was frustrated with how litigation tended to polarize Civil Rights issues. Within that polarized model, we were losing our sense of genuine social transformation and were becoming defenders or enforcers of particular positions. So this is an evolving idea. It did not hatch solely in the two months that I was experiencing my public nightmare.

 I have to admit that I’m a little skeptical about your project. I’d say, as Cornel West often does in response to people who ask if he’s optimistic about the future: “I’m not optimistic, but I’m hopeful.” I wonder, for example, who you’re going to get to participate in these conversations that haven’t existed before.

 You’re right that, on the one hand, as Americans we are attracted to something new and innovative; but as Americans we are also very resistant where the change means us. But I am actually optimistic, not just hopeful. I believe that the glass is half-full, but I am committed to filling the rest of the glass, to changing the future in a way that is more inclusive and is consistent with basic fundamental values: mutual respect, cooperation, equal opportunity, and fairness.

I spoke with a gentleman who recited to me a study from Boston in which they asked parents: What do you want for your kids? And the first thing that all of these parents–who crossed ethnic and class lines–said they wanted their kids to do was to learn how to swim. The second thing the parents wanted their kids to do was to go to college or to do better than they had in terms of education. But the third thing they wanted their kids to learn was how to get along with people who are different, because it was a skill the parents did not have and wanted their kids to have. So that’s one reason I’m optimistic. It’s not the parents we may reach, but it may be the children.

Other studies corroborate this. The National Conference of Christians and Jews did a study a year ago in which they exhumed stereotypes–Blacks having very hostile views about Asians, Latinos having hostile views about Blacks, Whites having hostile views about Asians, Blacks, and Latinos. But when the same people were asked, “Would you sit down with a member of the group you have just described in resistant or stereotyped ways to solve a local school problem or to collaborate about issues of crime or to talk about the common good?” 95 percent of the people said, “Yes.”

 Because the goal was a common interest?

 Because people want to do better, because they want America to be better, but they’re not being given the opportunity to collaborate.

Another reason I’m optimistic is because of my son, who’s in second grade. When I went for a parent-teacher conference, his teacher told me that they went around the room to mention what each of their parents did, and Nicholas’s friend was very proud that his mother was the vice president of a bank. At this point Nicholas just burst out and said, “Well, why isn’t she president?” If we plant the right seeds and if we provide deliberative space and an opportunity for people to really interact cooperatively, people will surprise us.

Funderburg: Can you give an example of what happens if that opportunity is provided?

 The New York City police used to have a height requirement. You had to be five-foot-eleven or six feet tall. It was a height requirement that discriminated against women and women brought suit, and they not only opened up the opportunity to be police for other women but for Latino men, for Asian men, and for short white men. You could say that this was an Affirmative Action program, but it wasn’t just for women. It was really challenging the assumption that being six feet tall was somehow merit-based. The requirement treated everyone the same, it’s true–you were six feet tall or you were not–but it was not necessarily a valid criterion for being a police officer.

In the process of talking about this, I learned that, when women went to resolve domestic violence cases, they turned out to be more effective than some of the six-feet-tall men because their approach was to try to defuse the situation, not to confront it. And then in terms of keeping housing projects safe, the women were more effective because their approach to the young men most likely to get into trouble was to mentor them, to treat them with respect, so the young men did not have to demand respect. In response, the young men checked their own behavior, because they didn’t want to disappoint an adult who was showing interest in them and in their futures.

So it’s a way of helping us reconceptualize police work, which again goes right back to the notion: When women were hired as police, did that mean we were getting lesser qualified women because they were not as tall, or did it mean we were getting differentially qualified women? There are certainly instances where a tall and strapping young male police officer is quite effective, but that is not the only way to be a good police officer. So it’s an opportunity to rethink the structure of the job in a way that not only provides the opportunity for more diverse people to do that job, to support their families, but it also makes the citizens better off, because they are being policed by a work force that is approaching the task in a pluralistic and adaptive fashion.

Funderburg: What are Commonplace’s next steps?

 We were going to have a National Conversation on race in the fall, but we decided to do the focus groups then and to start more slowly so that we could approach the National Conversation with confidence in our methodology. Very few people are participating in the national conversation right now whether they are White, Black, Latino, middle-class, working-class, or under-class. The conversation is taking place within a very elite stratum of the society, and in some sense it is taking place among repeat players who often went to similar schools, live in very similar neighborhoods, and talk to each other all the time.

To cite one example, welfare mothers are not part of the conversation about welfare reform. I read a wonderful piece, an exception to this, in the New York Times. They interviewed a group of women who had been on welfare and formed a support group to reinforce each other to stay off welfare. They finally asked them, “What would you do to change welfare?” The women’s response was that they would require everyone on welfare to come up with a plan as to how they’re going to get off welfare. They said no one does that! Then they said they would have a review board that includes some former welfare recipients-to review the plans! Well, that made a lot of sense to me, but I wouldn’t have thought of it because I am not a part of the system. We don’t ask the people who use the system. That’s really what Commonplace is trying to do: to give those people, ordinary people, across race and class lines, not only the opportunity but the vehicle for having a public voice.

They have done studies asking Americans, “Who do you trust?” On the bottom of the list are journalists, politicians, and lawyers–the three groups most engaged in the conversation right now. And who do they trust? Other ordinary Americans. Those are the only people they don’t think have an agenda.