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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 which 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 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 my be human nature-even if we'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 Affirmative 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 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?

Funderburg: 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 definition. You can be differentially qualified, but in our hierarchical thinking, difference has to be better or worse; it cannot simply be different.

Funderburg: 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 disempowering and contributes to the alienation and withdrawal that we see on so many different levels in our culture.

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