By Inimai Chettiar, cross-posted from American Constitution Society
Professor Derrick Bell, who passed away on Wednesday, was a racial
justice pioneer and teacher who enlightened many. His actions spoke as
loudly as his words and influence the work we do today at the ACLU. He
was the first black law professor at Harvard Law School, yet in 1990 he
vowed to take an unpaid leave of absence
until the school hired a black woman for its tenured faculty. That
didn’t happen until 1998, and by then Bell had moved on to NYU Law
School, where he remained until the end of his career.
It is groundbreaking scholarship like that of Professor Bell that gives life to the ACLU’s current work. In his book, Faces at the Bottom of the Well: The Permanence of Racism, he described, among other things, the forces that prevented Harvard from hiring black women as tenured law professors.
Professor Bell (pictured) was not afraid to state the truth: that
structural and insidious racism pervades our society, institutions, and
thinking. He pioneered the development of critical race theory
– which recognizes that racism is embedded deep beneath the surface of
our laws and legal institutions. He explained that, even where there is
no de jure segregation or explicit racism, there are often far more harmful subtle forces that hinder access to equality and result in de facto segregation.
In order to understand the structural nature of racism, we need to
follow Professor Bell through the proverbial “looking glass.” Things
aren’t always what they seem. The work of Bell and other scholars showed that, in order to achieve true racial equality, it’s insufficient to eliminate de jure
segregation laws if the majority of our institutions continue to be
created by, for, and around heterosexual white men of privilege. When
our societal or legal “norm” automatically leaves out women and people
of color, it may look like these groups are asking for a handout or an
“unfair advantage” when what they are really asking is to be included in
the creation of our institutions and laws.
Take, for example, Judge Richard Posner’s criticism
of the signature use of narrative and allegory in the legal writing of
Professor Bell and other critical race theorists. Judge Posner argued
that “by repudiating reasoned argumentation, the storytellers reinforce
stereotypes about the intellectual capacities of nonwhites.” The very
notion that “reasoned argumentation” is somehow intellectually superior
to narrative and allegory as a means to explain legal theory is embedded
in racism. (Not to mention that Plato - a father of Western philosophy -
wrote in allegory.) Critical theorists explain that our entire system
of legal education and scholarship was built by and for white men of privilege.
Others are forced to fit these so-called “objective” academic criteria,
or else be branded as not smart enough. But criteria for what makes
someone the “best” cannot be objective when it is decided by the
preferences of those in power.
Professor Bell eloquently identified and challenged the underlying
inequalities that keep black Americans and other marginalized groups “at
the bottom of the well.” These inequalities are reinforced by policies
that provide inadequate resources to inner-city schools populated with
poor black children, criminalize children’s behavior in these schools,
fail to provide families with affordable healthcare, make healthy foods
prohibitively expensive, selectively enforce drug policies in
communities of color, strip away our voting rights, and build housing
projects in environmentally unsound areas. The law doesn’t become race
neutral just because it doesn’t mention race. It only becomes race
neutral when it accounts for and corrects its disparate impact on people
of color, and is built by and for all of us.
We are far from living in a post-racial society, and Professor Bell
knew that. In 1992 he put forward the notion that black Americans were worse off and more subjugated then than at any time since slavery. Startlingly, right now this country controls more black men through our incarceration system
than it ever enslaved. Black Americans continue to live unequal lives
and have unequal futures, but yet society clings to the notion that
racism no longer exists simply because the law no longer mentions race. A
false belief in a post-racial society is dangerous and will prevent us
from achieving true equality.
Had it not been for Professor Bell’s courage – the courage to walk
away from jobs in protest, the courage to loudly state that racism
remains, and the courage to continue to speak the unpopular truth until
the end – racial justice advocacy would be far behind where it is today.
We draw strength from his courage and hope to carry on his struggle
with our work against structural racism in our education, healthcare,
employment, voting, immigration, and criminal laws. As the ACLU fights
on, we stand on the shoulders of this giant.
Inimai Chettiar, policy counsel for the ACLU’s Center for
Justice, and Courtney Bowie, senior staff attorney for the ACLU's Racial