Lani Guinier comments regarding
Diversity language committee draft
Diversity bylaw committee documents
From: Lani Guinier
Thank you for clarifying the background to the streams of email language I have recently received. Your email, which is very, very helpful, prompts me to ask the question directly about your timing. The Supreme Court is certain to issue its decision in the Michigan cases before the end of this month or at least prior to its summer recess. As you no doubt know, the Court is deciding two cases involving the permissible use of race as well as the diversity rationale in the context of higher education. Although there are, as cited in one or another of the documents I have been sent, several lines of relevant cases that could be useful to your deliberations, I would still urge you to wait until the Michigan case is decided. Why speculate on what the legal terrain looks like when your lawyers will find out at least temporarily much more information about the Court's thinking in a related area very soon? There may be political issues that press for immediate resolution, but legally I see no reason to act now rather than in July or August. Lani Guinier
At 06:42 PM 6/6/2003, sheilahamanaka wrote:
Thank you for your letter of June 2, 2003. Your response was most reasonable, given the volume of material sent to you. I apologize for the confusion and inadequate introduction.
The Diversity Language Committee of the interim Pacifica National Board (DLC) has been meeting over the past few months to develop bylaws language which will govern the affirmative action policy of the Pacifica Foundation with regard to governance, staffing, and programming. Given the role of Pacifica in alternative media, its ability to reflect and influence the progressive movement in the United States, the outcome of such language will be profound. As a result, affirmative action has generated considerable debate within Pacifica that is both political and legal in nature.
While there is general agreement in Pacifica about the spirit of affirmative action, there is disagreement over whether putting affirmative action language in the bylaws will put the foundation at serious risk given the current political climate. Some consider the affirmative action remedies included in the Committee's drafts to be "illegal". (Whether Pacifica is willing to take on any risk at all is a political question which Mr. Lubell declined to consider.)
To that end, the interim Pacifica National Board has charged the DLC with seeking the opinions of several attorneys known and respected for their work in the area of civil rights. Jonathan Lubell has generously assisted the Committee by reviewing our previous draft diversity language in relationship to the drafts of the complete bylaws. His most recent comments are included herewith as an attachment. Aside from yourself and Mr. Lubell the DLC has sent its work to Ted Shaw of the NAACP Legal Defense Fund.
The Committee did not intend for you to review all of the work which was sent to you. In a desire to fairly represent the disparate views of the various committee members, it voted to send all materials to all lawyers in order that all might understand the context of the language. That move superceded an earlier and perhaps more well considered decision to have Mr. Lubell first review the material and then send his conclusions to you for your feedback.
The Diversity Language Committee of the interim Pacifica National Board had its final meeting last night and completed the Final Draft Diversity Language for the Pacifica Bylaws, arrived at after consideration of the June 2, 2003 report of Jonathan Lubell, "Legal Issues Concerning Pacifica's Bylaws and Diversity," appended herewith as an attachment.
The Committee would be most grateful if you could read the Final Draft and Mr. Lubell's comments and if possible given the constraints of your time, answer the following question:
Is this plan likely to provoke and have the courts sustain a legal challenge, and if so how might the content be remedied?
Or, if you prefer, your input on of any or all of the following issues in regard to the above question would be deeply appreciated:
1. basing diversity goals in general and composition of candidate pools for the Local Station boards upon the demographics of the local signal area and the Pacifica Mission (see ARTICLE FOUR, SECTION 5. DIVERSITY OF DELEGATE NOMINEE POOLS, first paragraph, first sentence, in bold.)
2. adding seats to the Local Station Boards to increase diversity (see: ARTICLE FOUR, SECTION 7. SELECTION OF ADDITIONAL DELEGATES FOR DIVERSITY, Second paragraph, third sentence - in bold)
3. seating additional delegates to the Local Station Board on the basis of inadequate representation consistent with demographics (see: ARTICLE FOUR, SECTION 7. SELECTION OF ADDITIONAL DELEGATES FOR DIVERSITY, Second paragraph, fourth sentence - underlined)
The Committee values your expertise and opinions and we appreciate your contribution to the development of affirmative action in the Pacifica Foundation. The interim Pacifica National Board may meet as soon as next week to vote on bylaws language. I apologize for this schedule and hope to receive your comments in time for the board to consider your input.
If you have any questions please call Ray Laforest at (917) 603-0227. Please cc any correspondence to firstname.lastname@example.org
Thank you very much.
For Ray Laforest,
< DLC final draft was included here >
Additional questions and comments...
Ms. Guinier has provided a response to Pacifica regarding the draft bylaws, as shown below. But she did not answer the question I thought she was asked, namely: Are the draft bylaws legally viable?
Perhaps she was led to understand that we were asking a different question, namely: Should we delay approving the bylaws? At any rate, that is the question she answered. Her response does not provide a legal assessment of the draft bylaws.
Pacifica urgently needs to pass bylaws in some form as soon as possible. Quite bluntly, the lack of bylaws is placing the foundation in jeopardy. We need to proceed with elections and get ourselves a functioning, permanent board of directors. We cannot do so until the bylaws are approved. Apparently, she is unaware of the urgency of Pacifica's need for operational bylaws.
I am afraid her comments do not provide appropriate and useful information for Pacifica in its present situation and for that reason, I am sorry to say, they are not relevant.
But there is a simple and straightforward way to end this never-ending crisis: Pass Draft B of the bylaws now. It has been approved through straw votes by the iPNB and by two LABS (KPFA and KPFT). Draft B does not raise the legal issues associated with the alternate drafts and requires no further legal review.
I urge the iPNB to reaffirm its straw vote approval of Draft B and to submit the draft to the LABs. Since two LABs have already approved it, only one more LAB would need to vote for it and we would have our new bylaws.
Then we can proceed with our long-delayed elections.
~ Ted Friedman
From: evan davis
Clearly Ms. Guinier was only asked to comment on the legal viability of the proposed by-laws language that allows for set-aside seats based on race and gender. That was the crux of the debate ( superficially) and that question IS relevant but it is not the only one. I doubt that Ms. Guinier would offer a partial reply if she had been asked the other key questions such as whether, as written the Draft B by-laws are legally sound ( which we already know they are and no one is disputing that) and whether the foundation might be harmed by the amendments in question. The Michigan case will decide whether race can be considered as a criteria in college admissions but here we are talking about electing representatives. We don't "elect" students. Students don't determine university / foundation policy or elect national boards / boards of regents or manage the assets of Pacifica/ universities. Students also do not oversee the personnel affairs of administrators and review them and engage in the hiring/firing process. In other words students do not have to be accountable to the entire community of university officers and clients.
In our case it is both the welfare of the foundation and the soverignty of the listeners and staffs' votes that we are seeking to protect and we want to assure diversity within that framework. I wonder how Ms. Guinier may have responded if she had been asked if it would be better to have REAL affirmative action policies that center on outreach rather than place the foundation at POTENTIAL risk by including a dubious clause in our by-laws.
I wonder what Ms. Guinier's answer might have been if she had been asked to comment on the sensibility of adding seats to our boards affter the elections have been tallied and of allowing a committee to do the electing, etc.
I wonder what her responses would have been if she were asked any of these questions by someone we know and trust or by anyone whe doesn't have a partisan agenda. In fact we have not been allowed to see WHAT questions she was asked at all ( and we may never know). Evan Davis
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