The Legacy Of Derrick Bell

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 Justice Project