Professor of Law, Seattle University. J.D., U.C. Berkeley School of Law, 1974. Thanks to Jean Stefancic for comments and suggestions; to Jen Claypool and Mike Clayburn for research assistance; and to Tina Ching for bibliographic support.
Anniversary occasions like this one invite us to look backward, at origins, as well as to reflect on our current situation and prospects for the future. Written to commemorate critical race theory's twentieth year, this article, a piece d'occasion, focuses on the organization's early period and is primarily retrospective in character. Yet, an examination of our beginnings and the stories we tell about them may yield insight into our current condition as well as the forces that may shape us in the years ahead.
Stories oforigin are essential components of almost every group's self-understanding. 1 Native American cosmology, for example, offers an account of how the earth and its creatures came into being.2 For Latinos, the mythical land of Aztlan serves a similar constitutive function.3 And, of course, Americans of every description learn the story of their country's revolutionary origins, including their colonial forebears' righteous grievances against the Crown and their subsequent westward march in pursuit of Manifest Destiny-a story that, naturally, differs dramatically from that of the Native Americans.4
Like the abovementioned stories, critical race theory's accounts of its own beginnings are multiple and contested but perform many of the same functions-designating an official ideology, selecting a set of heroes, and avoiding the appearance of contingency and luck in explaining how the group came into existence.5
One suspicion that emerges when one encounters competing stories of origin is the possibility that an unarticulated, broader version might better explain events than any of the others alone. Moreover, it may turn out that no one account holds an exclusive claim to the truth, but that a hitherto unidentified material force may be at work as well. 6
In 1980, Derrick Bell startled the legal world when he posited, in an article entitled Brown v. Board of Education and the Interest Convergence Page 1507 Dilemma,1 that this groundbreaking decision arrived when it did, not because of a belated spasm of conscience on the part of the Supreme Court, but because of a fortuitous combination of material and sociopolitical circumstances.8 The NAACP Legal Defense and Education Fund, Bell pointed out, had been litigating school desegregation cases throughout the South for decades and achieving, at most, narrow victories.9 Yet the skies opened in 1954 when the Supreme Court, in a unanimous decision, appeared to grant the organization everything it wanted.10
Why just then? Based on fragmentary evidence coupled with some highly astute intuition, Bell posited that America's need to burnish its image in the eyes of the international community set the stage for the breakthrough decision.11 At the time, the United States was competing with its Soviet adversaries for the loyalties of the uncommitted Third World, much of which was black, brown, or Asian.12 Every time the world press featured front-page stories and photographs of lynchings and Jim Crow treatment in the South, our Cold War rivals made capital at our expense. 13
Thus, it behooved America's establishment to arrange a spectacular victory for African Americans as a way to improve our competitive position vis-a-vis the Soviet bloc. In addition, the country was then absorbing back into its civilian population tens of thousands of black servicemen and women who had served in World War II and Korea.14 Having for the first time experienced an environment where a person of color might advance more readily than in civilian life and having risked their lives in the defense of democracy, these men and women were unlikely to return meekly to lives of menial labor and deference to whites. For the first time in years, domestic unrest loomed.15 A breakthrough demonstrating that America had blacks' best interests at heart would go far to quell any incipient uprising.
When newly discovered evidence from governmental files confirmed Bell's hypothesis, "interest convergence" took its place as a powerful tool of critical analysis. 16 Bell later expanded his material-determinist approach to Page 1508 the full sweep of American history in his monumental casebook, Race, Racism, and American Law,11 while other scholars employed the tool to understand such areas as labor history18 and Latino legal fortunes.19
What might interest convergence tell us about the origins of critical race theory? Can a concept which has helped historians understand the twists and turns of black fortunes help explain how critical race theory itself arose and then saw its fortunes wax and wane? My thesis is that it can and does. Part I of this Article briefly reviews competing stories of critical race theory's origin, in particular the Harvard story, the Berkeley story, and the Los Angeles story.20 These narratives generally place the origin of the movement in the organizational or intellectual skills of individual actors.
Part II then examines broader currents in American society during and just before this period.21 Like Bell, I begin with Brown v. Board of Education,"
I posit that this wave of what I call liberal McCarthyism occurred because America's guardians foresaw the arrival of growing numbers of black and Latino applicants knocking at the doors of America's leading colleges and universities.25 This early generation of undergraduates of color, who would have entered the nation's newly desegregated grade schools beginning in the mid and late 1950s, their ranks now swollen by affirmative Page 1509 action, seemed poised to become the nation's first large generation of black and brown schoolteachers, social workers, mayors, college professors, lawyers, executives, and doctors.
Establishment figures were not at all eager for these future leaders to learn social analysis from far-left professors of law, history, criminology, and political science.26 Having just lived through the turbulent sixties, these visionary figures preferred the new cohort of minorities moderate, responsible, and above all, not angry. Accordingly, the establishment removed the white radical professors in a series of tenure denials that spread across the country during this period. I describe a number of these removals in Part II.27 Culling from newspaper reports, personal interviews, and archival material, I show how two prominent law professors, a professor of history, and one of criminology were forced out of their jobs at elite universities.
In Part Ill, I connect four of the most prominent removals with the rise of critical legal studies and critical race theory.28 Specifically, I show how these leftists used their periods of unemployment (in one case) or underemployment (in three others) to nurture radicalism in the hinterlands in ways that contributed to the rise of these two schools of radical thought.
A short, final Section draws lessons from the foregoing.29 One message, hopeful in nature, is, simply, that it is hard to kill an idea. 30 A related insight holds that, as much as the establishment might wish to confine education to that which it finds useful, it cannot, in the end, do so. A "theory of surplus education"-a correlate of Marx's famous proposition31-holds that if you teach a worker enough mathematics to use a machine or operate a cash register, he will use that knowledge to figure out that you are raking off a great deal of profit and ask for a raise.32 If you teach Chicano children to read well enough that they can follow the directions on a bag of fertilizer or pesticide, they may also read the rest of the label, including the health warnings, and may one day get a lawyer and file a class action against you for personal injury. If you teach grade-school students the revolutionary ideals that led to the Boston Tea Party, you may find them using that same rhetoric Page 1510 against you if you have been tyrannizing them in the classroom. Like capitalism, education inevitably generates its own contradictions and pressures for reform. 33
I hasten to add that nothing I say here should diminish the brilliance or courage of the founding figures of the critical-race-theory movement. Rather, I seek to explain why we may have been successful when we were; who among our intellectual predecessors paid a...