Critical Race Theory (crt) in the Legal Academy: Derrick Bell's Seminal Law Review Articles and Critical Race Theorists Scholarship; Crt Opponents Conflicting Views and Potential Consequences of Critics' Cancellation Strategy
| Publication year | 2023 |
Critical Race Theory (CRT) in the Legal Academy: Derrick Bell's Seminal Law Review Articles and Critical Race Theorists Scholarship; CRT Opponents Conflicting Views and Potential Consequences of Critics' Cancellation Strategy
Cynthia Elaine Thompkins
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A couple of decades and some years ago, when I was a civil rights attorney in Washington D.C., I stopped by a bookstore café for a quiet lunch and to review a case file before an afternoon meeting. A book jacket of a man looking forward with intention and purpose captured my attention. The words on the cover corroborated his gaze: Confronting Authority: Reflections of an Ardent Protester.1 He was Derrick Bell, a civil
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rights attorney, activist, law school professor, and writer. I had read several of Professor Bell's law review articles but not his autobiographical writings and had never seen his photograph before seeing the dignified cover, so I purchased the book and read it that evening. Bell's words were stunning: "Four years have passed since I announced on April 24, 1990, that I would take an unpaid leave from my position on the Harvard Law School faculty until at least one woman of color was appointed to the faculty on a permanent basis."2
The "ardent protester's" reflections on his decision to take unpaid leave from his prestigious law school faculty position were unmatched.3 It is rare for one to consider, much less relinquish prestige, tenure, and income for a declaration of principled reasons. And yet, Bell was confident that Harvard Law School (HLS), like all law schools, needed tenured women of color on the faculty.4
Before joining the HLS faculty, Bell graduated from the University of Pittsburgh School of Law in 1957 and started his legal career as an attorney in the United States Department of Justice (DOJ) Honor Graduate program in Washington, D.C., eventually assigned to the DOJ
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Civil Rights division.5 His time at the DOJ was brief, as supervisors found his participation in the National Association for the Advancement of Colored People (NAACP) a conflict of interest. They asked Bell to withdraw his NAACP membership, and he refused; DOJ supervisors responded by giving him mundane work assignments and a new workstation in the hallway.6 Bell resigned.7
He returned to his home state of Pennsylvania to work as the Executive Director at the city of Pittsburgh's NAACP branch office.8 A short time later, Bell met United States Supreme Court Justice Thurgood Marshall, who was, at that time, the Director and Counsel of the Legal Defense Fund (LDF).9 Marshall created the LDF as a civil rights organization to address racial injustice.10 Initially, LDF was a subdivision of the NAACP, but since 1957, it has been a separate organization.11 Marshall offered Bell a job at the LDF New York office.12 Bell accepted the position and said he spent "six exciting and rewarding years" from 1960-1966, advancing the legal strategy in about 300 school desegregation cases that helped shape his scholarship when he became a law professor.13 In 1969, when appointed to the HLS faculty, Bell was the first Black14 male; he earned tenure two years later.15
For years, Bell was concerned about the lack of full-time Black women on the HLS faculty, so he challenged the Dean and faculty's explanations for the Law School's failure to appoint tenured women of color.16 In 1981,
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he resigned, leaving the school for a few years to serve as Dean at the University of Oregon Law School (OLS).17 Bell's departure left HLS with no tenured faculty of color and a gap in the curriculum with no one prepared to teach his Constitutional Law and Minority Issues course. Black law students protested the curriculum gap and wanted the HLS to, in their words, "Desegregate Now!" and employ full-time tenured Black faculty.18 Their protests grew after the Dean responded with an explanation that the students considered commonly offered by organizations that fail to effectively recruit, hire, and retain diverse people of color: the Dean noted an insufficient pool of qualified or willing applicants.19
When Bell began serving as Dean of the OLS, most of the student body was Asian American.20 He served as the OLS dean for five years.21 Still, with no Asian American faculty, Bell wanted to hire an Asian American woman, but the faculty voted against a candidate he considered well-qualified.22 Bell said he found their decision untenable, so he resigned, asserting the need to follow the dictates of his conscience.23 He taught a constitutional law course at Stanford Law School and then returned to HLS.24 Still, his time there again rested on whether the faculty would shatter the glass ceiling and appoint a permanent woman of color.
After two years back at HLS, nearly two decades since he first joined the faculty, Bell remained concerned that his and student protests of the Law School's failure to hire women of color had not resulted in any faculty appointments.25 So, he decided to leave the school again; this time, he
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went without pay for two years in a bold protest.26 Nothing changed. The faculty hired no women of color during his absence.27 Therefore, Bell said, "I refused to return, citing the school's failure to act on my protest, Harvard dismissed me and forfeited my tenured position."28 He accepted a visiting professor job at New York University law school and taught there as a visiting law professor until he died in 2011.29 Bell had decided he could live without the prestigious tenure appointment at the HLS. He wrote:
Leaving jobs and engaging in other activities to protest what I felt was wrong did not destroy my career. To the contrary, those actions, while not always easy to take, enriched my life and provided me with the perhaps unrealistic but no less satisfying sense that I was doing God's work.30
Publicity surrounding Bell's protests raised awareness throughout the legal academy of the benefits students gain from a faculty that includes tenured women of color with legal practice experience and distinct backgrounds. Bell believed women of color bring to law schools perspectives and experiences from communities of color, enhancing students' legal education and better preparing them to represent people from different backgrounds.31 His protests and influence were widespread. Countless scholars recognize Bell's immense contributions
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to their success in the legal academy.32 Angela Onwuachi-Willig,33 Dean of the Boston University School of Law, an expert in Critical Race Theory, prolific scholar and professor of law, and among many other outstanding accolades, founder of the Lutie A. Lytle Black Women Law Faculty Workshop, assisting women in gaining tenure at law schools throughout the United States, said this about Bell:
In the end, Professor Bell taught us—meaning the many professors of color who followed him into the academy—how "to have the nerve" to both survive and thrive in our institutions as teachers, scholars, and citizens, and he did so with just his deep belief in our true belonging in academia. Over and over in his career, he displayed that belief by walking away from privilege, power, and prestige in academia when other law professors failed to hold his same strong belief in our belonging on law school faculties and instead refused to extend to candidates of color any offers for tenure-track or tenured employment.34
During his four-decade career in the legal academy, Bell wrote over 100 law review articles and ten books.35 When he finished his work and journey on earth, some may have assumed that his bold scholarly viewpoints and research findings would diminish in importance, but nothing could be further from the truth. Bell's civil rights counsel, activism, teaching, and, significantly, his critical race scholarship are remembered and cited extensively within and outside the legal academy.36 He studied and examined issues of racial justice and racism. He is best known for his research and writing, examining systemic racism and concluding that racism is permanent in the United States and institutionalized in law.37
Bell's dedication to developing scholarship that addressed critical race theories was opposed and criticized.38 Public resistance has been extreme recently (2020-2023), with critics and opponents categorizing most teaching about race and the relationship to law, systemic racism, racial
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justice, and race history as Critical Race Theory (CRT),39 despite CRT's origination and general application primarily for law students in the legal academy.40 Educators and scholars argue that the criticisms marginalize teaching and aim to deter academics from writing about the necessary topic of American race history, racial justice, and the relationship between race and law.41
What is systemic racism, and is it the same as structural racism? Cambridge Dictionary defines systemic racism as "policies and practices that exist throughout a whole society or organization, and that result in and support a continued unfair advantage to some people and unfair or harmful treatment of others based on race."42 Similarly, structural racism includes: "Laws, rules, or official policies in a society that result in and support a continued unfair advantage to some people and unfair or harmful treatment of others based on race."43
What is Critical Race Theory? Professor Derrick Bell provided this definition: "[C]ritical race theory is a body of legal scholarship . . . a majority of whose members are both existentially people of color and ideologically committed to the struggle against racism, particularly as
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institutionalized in and by law."44 Bell also...
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