Bernie D. Jones
abstracted From: Bernie D. Jones, Critical Race
Theory: New Strategies for Civil Rights in the New Millennium?, 18
Harvard BlackLetter Law Journal 1-90, 1-5 (Spring, 2002) (378 Footnotes)
The development of critical race theory points to a new direction
taken by civil rights activists in the wake of civil rights setbacks in
the 1970s and 1980s when official government policy no longer supported
an expansive civil rights agenda. The United States Supreme Court began
limiting and eviscerating precedents that once promised full equality
for African Americans under the law. Critical race theorists who fought
against this declension from civil rights began storytelling, in which
they gave voice to the contemporary civil rights struggle. They
explained the situation of "outsiders," people of color
dispossessed by the law.
The Parts of this Article--civil rights litigation before the Supreme
Court under Earl Warren and under Chief Justices Burger and Rehnquist,
the breakup of the African American liberal coalition, the storytelling
response, and protest--explain the development of critical race theory,
its antecedents in the legal liberalism that enabled the civil rights
movement, and its rejection of formalism on the Supreme Court. The
critical race theorists had as their objective, ending exclusive
reliance upon civil rights litigation, storytelling to broaden public
consciousness of racism and discrimination under the law, and protest
reminiscent of the civil rights movement of the 1950s and 1960s.
In 1969, the civil rights movement was in crisis. The decade-long
struggle for equal rights in the South had crested, and the momentum
that began with Brown v. Board of Education had begun to dissipate.
Although Congress had passed two pieces of legislation that promised to
eradicate the evils of Southern apartheid, the Civil Rights Act of 1964
and the Voting Rights Act of 1965, the future looked bleak. Martin
Luther King had been assassinated the year before, and his attempts to
bring the civil rights movement to the North had come to naught.
Northern blacks had never experienced legal segregation and
discrimination; instead, they experienced it on an unofficial basis.
Long-standing housing discrimination relegated them to ghettos and their
children to neighborhood schools inferior to those attended by white
children. Blacks from Watts to Newark had rioted against an unseen
enemy: their lack of economic opportunity, for which no Jim Crow
institution could be blamed.
African American intellectuals, in their long-standing position as
leaders and activists, tried to determine what the next strategies
should be. Was the movement over? Had the legal aspects of the movement
done all it could do? Was the movement in the hands of a federal
government, seemingly pledged to eradicate the problems, stemming from
decades of discrimination, subservience and poverty? Should blacks rely
upon group-based remedies such as affirmative action? What was the best
means of ensuring empowerment? Some said it lay in individual effort;
all official barriers to full participation in American society had
already been blasted away by the force of civil rights legislation.
Others looked to black power, removal from dependency upon whites,
buttressed by a determination to do for self. In their view, dependency
only led to vulnerability, because whites decided how and when blacks
would become empowered, on terms palatable to them, but not necessarily
beneficial to blacks.
At the same time, American politics began to move right and officials
abandoned the liberal activism that had been central to the civil rights
movement. White voters looked at "black power" with fear. In
their minds, this new nationalism had a sinister tone, one that
resonated with violence in the city streets and a disregard for law and
order. It was a blackness rooted in arrogance and disdain for whiteness,
in which every white became culpable for the sins committed against
African Americans over centuries of slavery and disempowerment. This was
far different from the liberalism of 1950s-era activists who made
appeals to Christian morality and notions of justice.
The white response to the evolution within the civil rights movement
varied. While some remained loyal, others abandoned the civil rights
project, believing that the movement was over, because civil rights
legislation had been passed. Banding with conservatives who rejected
liberal judicial activism, they joined a growing populist movement,
arguing that it was time to circle the wagons and take care of whites.
Along with their white liberal allies, the "bleeding heart
liberals" supportive of expansive civil rights policy, and the
upper class "armchair liberals," blacks seemed to these newly
conservative whites to be bent upon using government to take away the
rights of working and middle class whites. Affirmative action thus meant
reverse discrimination, as innocent whites were sacrificed for the
actions of long-dead slaveholders.
White populism meant the rise of the Republican party and rejection
of the Democrats, as the coalition between white ethnic laborers in the
Northeast and blacks fell apart. Nixon, Ford, Reagan, and Bush made it
into the White House, as compared to only Carter and Clinton. As
presidential politics began more and more to determine the nature of
judicial policy and politics, the Supreme Court reflected this new
trend, as Republican presidents nominated like-minded judges to the
The Court became the means by which Republican presidents could
ensure the end of liberal civil rights policy because Justices have life
tenure. These justices promulgated a formalist position on civil rights
that marked a return to narrow concepts of jurisprudence and a rejection
of liberal judicial activism. In the eyes of activists, the Supreme
Court was no longer an articulate voice in favor of civil rights and
liberties; instead, it became a threat, for the justices seemed able to
limit precedents or do away with them altogether. Law professors of
color such as Derrick Bell were among the first to notice this trend.
Derrick Bell was an activist lawyer in the civil rights movement; he
once worked for the National Association for the Advancement of Colored
People (NAACP) Legal Defense Fund in fighting for full equality under
the law. He believed in an expansive civil rights project which would
guarantee protection of African American rights on all fronts. He
supported Brown. But in the wake of white conservative populism, the
rise in black nationalism and the failure of liberal judicial activism
to insure the promise of Brown, he began to question the liberal legal
ideal. By this time, Bell was a law professor; both his scholarship and
pedagogy reflected his developing perspective.
Bell came to believe Brown was a failure, because the lawyers who
litigated the case sought a formal remedy--desegregation--without
considering the heart of the true claims African Americans made.
Inequality in resource allocation was the true problem, and it was one
that could not be disguised by cosmetic remedies. The mere presence of
African Americans in all-white institutions meant nothing as long as
whites retained full power and control over decision-making processes.
African Americans thus remained supplicants to white benevolence, and
whites made changes only to the point at which their personal interests
were not compromised.
As a legal educator in the early 1970s, Bell transferred his activism
to a different milieu. He began to train the next generation of lawyer
activists. Harvard Law School hired him because he had practical civil
rights experience, and the trend of legal education at the time
encouraged the presence of seasoned civil rights veterans. Civic-minded
law students were gravitating toward civil rights practice; thus, Bell
had a special role. But in addition, his presence as an African American
was important, as greater numbers of law students of color started
entering law school. The law students looked to him for mentoring and
for instruction on what they could expect as civil rights lawyers. They
learned his critique of civil rights practice and followed his examples
of activism. Bell criticized the law as an institution; insofar as
Harvard was part of that institution, he criticized it too and raised
the rallying cry of protest.
Bell's students took the lessons he taught them and critiqued
Harvard's traditional role in society as an elite mainstream
institution, responsible for supplying the lawyers who populated the
ranks of high court judges, practitioners and legal educators. They
blamed Harvard for failing to contribute to a true liberal agenda that
would empower communities of color. They followed Bell's example of
legal activism in academia and raised protests within the law school at
various times during Bell's tenure. When Bell took over as dean of the
University of Oregon's law school in 1983, they boycotted a civil rights
class being offered, on the ground that there remained no tenured
instructors who could serve as effective mentors to students seriously
interested in civil rights.
Among the Bell students who became academics, one can find founding
members of a group of legal scholars who built upon Bell's critique of
legal liberalism through their own scholarship, such as Kimberlé
Williams Crenshaw and Patricia J. Williams. Following in Bell's
footsteps, they adopted "storytelling," an approach to
scholarship and pedagogy in which they articulated the worldview of the
downtrodden. They explained how people of color experienced the law, how
it limited them and corralled them into subservience. Telling stories
had the potential to liberate people of color made powerless by the
forces of law, as the critical race theorists offered therapeutic
consciousness-raising. As scholars themselves, they were seeking their
own liberation, an understanding of the "dual consciousness"
that came with their status as law professors of color. They were
supposedly empowered under the law, but they felt disempowered by the
white institutions that employed them. But they were also powerful
arbiters of the law, articulate in its language, leaders of their
people. They had a special responsibility to engage the law and use it
for their community's liberation, even though the law traditionally
operated to dispossess people of color.
Within the legal academy, critical race theory generated controversy.
Traditionalist legal scholars rejected it as not being scholarly enough.
Storytelling as an approach to scholarship did not resemble anything the
traditionalists could recognize. There was little discussion of law, of
legal rules, or of jurisprudence. In the eyes of some, storytellers
simply told tales with no legal context. These were "agony
tales," with no corresponding explanation of how legal rules
mattered to the story. They did not propose alternative ways of looking
at legal rules and did not develop new ones. To that extent,
traditionalists claimed the critical race theorists neglected their
responsibilities as lawyers, scholars and professors.
Notwithstanding rejection bythe traditionalists, critical race theory
continued to develop. Early members of the critical race theory cohort
were teaching at law schools throughout the country, and by the late
1990s, other scholars became interested in it. Some were curious
observers, others were students of the early cohort who gained
employment at law schools. They began writing in the storytelling
tradition. Most significant in this movement however, was Bell's ability
to marshal popular support for critical race theory storytelling in the
early 1990s. He turned his long-standing criticism of Harvard Law School
into an indictment of American civil rights policy as a whole.
Bell took a protest leave from Harvard. He claimed that Harvard
engaged in a long-standing practice of offering visiting professorships
to qualified African American female law professors, but then declined
to offer them tenured positions. Instead, the administration routinely
offered such positions to visiting white male professors. This protest
brought Harvard and Bell to national attention, as the struggle over
affirmative action within the legal academy raised serious policy
questions being debated throughout the country.
Within the African American middle and professional class, Bell
became a hero and was held up as an example to emulate, even as
political conservatives, formalist justices and traditionalist legal
scholars rejected him. He was leading the contemporary civil rights
movement in a period when discrimination was no longer a straightforward
issue as it had been during the period of legalized segregation prior to
Brown. In the wake of changing ideas about discrimination law when
formalism threatened to undo the gains of the 1960s, Bell's protest
articulated the concerns of many blacks who perceived that although they
made headway into white mainstream society and middle class professional
status, racism and discrimination always threatened to rise up to and
thwart their ambitions.
The acceptance of Bell and critical race theory was made possible
through storytelling. Once Bell and other critical race theory
storytellers such as Richard Delgado and Patricia J. Williams reached
beyond an academic audience and addressed the public through fiction
writing, story-telling became popularized. Divorced from the debates
within the legal academy, it became cultural criticism, and the critical
race theorists became well-known critics of the conservative right and
of the legal system in general. Looking at current events, they pointed
out the inconsistencies of the term "equal justice under the
law," whenever the legal system failed to live up to its promises
and instead denied justice to African Americans.
Commenting upon well-known and controversial cases of the mid to late
1990s, such as Rodney King, they explained what seemed inexplicable to
many. At a time when many African Americans thought they were
experiencing a backlash against civil rights and greater tolerance for
racism seemed to be in vogue, the critical race theorists explained that
the law upheld and provided justification for racist behavior. Political
liberals thus celebrated critical race theory as a literature that
demonstrated why the civil rights struggle had not ended. They welcomed
scholars of color who explained the changing discourse on civil rights
as it was being developed by formalist justices on the Supreme Court.
[a1]. Ph.D. candidate in history, University of Virginia. J.D., New
York University School of Law, 1992; M.A., University of Virginia, 1997.
This Article is part of a dissertation in progress.