The Man Behind Critical Race Theory – The New Yorker

The town of Harmony, Mississippi, which owes its origins to a small number of formerly enslaved Black people who bought land from former slaveholders after the Civil War, is nestled in Leake County, a perfectly square allotment in the center of the state. According to local lore, Harmony, which was previously called Galilee, was renamed in the early nineteen-twenties, after a Black resident who had contributed money to help build the town’s school said, upon its completion, “Now let us live and work in harmony.” This story perhaps explains why, nearly four decades later, when a white school board closed the school, it was interpreted as an attack on the heart of the Black community. The school was one of five thousand public schools for Black children in the South that the philanthropist Julius Rosenwald funded, beginning in 1912. Rosenwald’s foundation provided the seed money, and community members constructed the building themselves by hand. By the sixties, many of the structures were decrepit, a reflection of the South’s ongoing disregard for Black education. Nonetheless, the Harmony school provided its students a good education and was a point of pride in the community, which wanted it to remain open. In 1961, the battle sparked the founding of the local chapter of the N.A.A.C.P.

That year, Winson Hudson, the chapter’s vice-president, working with local Black families, contacted various people in the civil-rights movement, and eventually spoke to Derrick Bell, a young attorney with the N.A.A.C.P. Legal Defense and Educational Fund, in New York City. Bell later wrote, in the foreword to Hudson’s memoir, “Mississippi Harmony,” that his colleagues had been astonished to learn that her purpose was to reopen the Rosenwald school. He said he told her, “Our crusade was not to save segregated schools, but to eliminate them.” He added that, if people in Harmony were interested in enforcing integration, the L.D.F., as it is known, could help.

Hudson eventually accepted Bell’s offer, and in 1964 the L.D.F. won Hudson v. Leake County School Board (Winson Hudson’s school-age niece Diane was the plaintiff), which mandated that the board comply with desegregation. Harmony’s students were enrolled in a white school in the county. Afterward, though, Bell began to question the efficacy of both the case and the drive for integration. Throughout the South, such rulings sparked white flight from the public schools and the creation of private “segregation academies,” which meant that Black students still attended institutions that were effectively separate. Years later, after Hudson’s victory had become part of civil-rights history, she and Bell met at a conference and he told her, “I wonder whether I gave you the right advice.” Hudson replied that she did, too.

Bell spent the second half of his career as an academic and, over time, he came to recognize that other decisions in landmark civil-rights cases were of limited practical impact. He drew an unsettling conclusion: racism is so deeply rooted in the makeup of American society that it has been able to reassert itself after each successive wave of reform aimed at eliminating it. Racism, he began to argue, is permanent. His ideas proved foundational to a body of thought that, in the nineteen-eighties, came to be known as critical race theory. After more than a quarter of a century, there is an extensive academic field of literature cataloguing C.R.T.’s insights into the contradictions of antidiscrimination law and the complexities of legal advocacy for social justice.

For the past several months, however, conservatives have been waging war on a wide-ranging set of claims that they wrongly ascribe to critical race theory, while barely mentioning the body of scholarship behind it or even Bell’s name. As Christopher F. Rufo, an activist who launched the recent crusade, said on Twitter, the goal from the start was to distort the idea into an absurdist touchstone. “We have successfully frozen their brand—‘critical race theory’—into the public conversation and are steadily driving up negative perceptions. We will eventually turn it toxic, as we put all of the various cultural insanities under that brand category,” he wrote. Accordingly, C.R.T. has been defined as Black-supremacist racism, false history, and the terrible apotheosis of wokeness. Patricia Williams, one of the key scholars of the C.R.T. canon, refers to the ongoing mischaracterization as “definitional theft.”

Vinay Harpalani, a law professor at the University of New Mexico, who took a constitutional-law class that Bell taught at New York University in 2008, remembers his creating a climate of intellectual tolerance. “There were conservative white male students who got along very well with Professor Bell, because he respected their opinion,” Harpalani told me. “The irony of the conservative attack is that he was more respectful of conservative students and giving conservatives a voice than anyone.” Sarah Lustbader, a public defender based in New York City who was a teaching assistant for Bell’s constitutional-law class in 2010, has a similar recollection. “When people fear critical race theory, it stems from this idea that their children will be indoctrinated somehow. But Bell’s class was the least indoctrinated class I took in law school,” she said. “We got the most freedom in that class to reach our own conclusions without judgment, as long as they were good-faith arguments and well argued and reasonable.”

Republican lawmakers, however, have been swift to take advantage of the controversy. In June, Governor Greg Abbott, of Texas, signed a bill that restricts teaching about race in the state’s public schools. Oklahoma, Tennessee, Idaho, Iowa, New Hampshire, South Carolina, and Arizona have introduced similar legislation. But in all the outrage and reaction is an unwitting validation of the very arguments that Bell made. Last year, after the murder of George Floyd, Americans started confronting the genealogy of racism in this country in such large numbers that the moment was referred to as a reckoning. Bell, who died in 2011, at the age of eighty, would have been less focussed on the fact that white politicians responded to that reckoning by curtailing discussions of race in public schools than that they did so in conjunction with a larger effort to shore up the political structures that disadvantage African Americans. Another irony is that C.R.T. has become a fixation of conservatives despite the fact that some of its sharpest critiques were directed at the ultimate failings of liberalism, beginning with Bell’s own early involvement with one of its most heralded achievements.

In May, 1954, when the Supreme Court struck down legally mandated racial segregation in public schools, in Brown v. Board of Education of Topeka, the decision was instantly recognized as a watershed in the nation’s history. A legal team from the N.A.A.C.P. Legal Defense and Educational Fund, led by Thurgood Marshall, argued that segregation violated the equal-protection clause of the Fourteenth Amendment, by inflicting psychological harm on Black children. Chief Justice Earl Warren took the unusual step of persuading the other Justices to reach a consensus, so that their ruling would carry the weight of unanimity. In time, many came to see the decision as an opening salvo of the modern civil-rights movement, and it made Marshall one of the most recognizable lawyers in the country. His stewardship of the case was particularly inspiring to Derrick Bell, who was then a twenty-four-year-old Air Force officer and who had developed a keen interest in matters of equality.

Bell was born in 1930 in Pittsburgh’s Hill District, the community immortalized in August Wilson’s plays, and he attended Duquesne University before enlisting. After serving two years, he entered the University of Pittsburgh’s law school and, in 1957, was the only Black graduate in his class. He landed a job in the newly formed civil-rights division of the Department of Justice, but when his superiors became aware that he was a member of the N.A.A.C.P. they told him that the membership constituted a conflict of interest, and that he had to resign from the organization. In a move that would become a theme in his career, Bell quit his job rather than compromise a principle. He began working, instead, at the Pittsburgh N.A.A.C.P., where he met Marshall, who hired him in 1960 as a staff attorney at the Legal Defense Fund. The L.D.F. was the legal arm of the N.A.A.C.P. until 1957, when it spun off as a separate organization.

Bell arrived at a crucial moment in the L.D.F.’s history. In 1956, two years after Brown, it successfully litigated Browder v. Gayle, the case that struck down segregation on city buses in Alabama—and handed Martin Luther King, Jr., and the Montgomery Improvement Association a victory in the yearlong boycott they had organized. The L.D.F. launched desegregation lawsuits across the South, and Bell supervised or handled many of them. But, when Winson Hudson contacted him, she opened a window onto the distance between the agenda of the national civil-rights organizations and the priorities of the local communities they were charged with serving. In her memoir, she recalled a contentious exchange she had, before she contacted Bell, with a white representative of the school board. She told him, “If you don’t bring the school back to Harmony, we will be going to your school.” Where the L.D.F. saw integration as the objective, Hudson saw it as leverage to be used in the fight to maintain a quality Black school in her community.

The Harmony school had already become a flashpoint. Medgar Evers, the Mississippi field secretary for the N.A.A.C.P., visited the town and assisted in organizing the local chapter. He told members that the work they were embarking on could get them killed. Bell, during his trips to the state, made a point of not driving himself; he knew that a wrong turn on unfamiliar roads could have fatal consequences. He was arrested for using a whites-only phone booth in Jackson, and, upon his safe return to New York, Marshall mordantly joked that, if he got himself killed in Mississippi, the L.D.F. would use his funeral as a fund-raiser. The dangers, however, were very real. In June of 1963, a white supremacist shot and killed Evers in his driveway, in Jackson; he was thirty-seven years old. In subsequent years, there was an attempted firebombing of Hudson’s home and two bombings at the home of her sister, Dovie, who was Diane Hudson’s mother and was involved in the movement. That suffering and loss could not have eased Bell’s growing sense that his efforts had only helped create a more durable system of segregation.

Bell left the L.D.F. in 1966 for an academic career that took him first to the University of Southern California’s law school, where he directed the public-interest legal center, and then, in 1969, in the aftermath of King’s assassination, to Harvard Law School, as a lecturer. Derek Bok, the dean of the school, promised Bell that he would be “the first but not the last” of his Black hires. In 1971, Bok was made the president of the university, and Bell became Harvard Law’s first Black tenured professor. He began creating courses that explored the nexus of civil rights and the law—a departure from traditional pedagogy.

In 1970, he had published a casebook titled “Race, Racism and American Law,” a pioneering examination of the unifying themes in civil-rights litigation throughout American history. The book also contained the seeds of an idea that became a prominent element in his work: that racial progress had occurred mainly when it aligned with white interests—beginning with emancipation, which, he noted, came about as a prerequisite for saving the Union. Between 1954 and 1968, the civil-rights movement brought about changes that were thought of as a second Reconstruction. King’s death was a devastating loss, but hope persisted that a broader vista of possibilities for Black people and for the nation lay ahead. Yet, within a few years, as volatile conflicts over affirmative action and school busing arose, those victories began to look less like an antidote than like a treatment for an ailment whose worst symptoms can be temporarily alleviated but which cannot be cured. Bell was ahead of many others in reaching this conclusion. If the civil-rights movement had been a second Reconstruction, it was worth remembering that the first one had ended in the fiery purges of the so-called Redemption era, in which slavery, though abolished by the Thirteenth Amendment, was resurrected in new forms, such as sharecropping and convict leasing. Bell seemed to have found himself in a position akin to Thomas Paine’s: he’d been both a participant in a revolution and a witness to the events that revealed the limitations of its achievements.

Bell’s skepticism was deepened by the Supreme Court’s 1978 decision in Bakke v. University of California, which challenged affirmative action in higher education. Allan Bakke, a white prospective medical student, was twice rejected by U.C. Davis. He sued the regents of the University of California, arguing that he had been denied admission because of the school’s minority set-aside admissions, or quotas—and that affirmative action amounted to “reverse discrimination.” The Supreme Court ruled that race could be considered, among other factors, for admission, and that diversifying admissions was both a compelling interest and permissible under the Constitution, but that the University of California’s explicit quota system was not. Bakke was admitted to the school.

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