Derrick Bell died last week at the age of 80. Though his passing was overshadowed by the death of Steve Jobs, Bell’s achievements were recounted in the New York Times and elsewhere: First African American law professor to be tenured at Harvard Law School; First, and perhaps only, tenured Harvard Law Professor to give up his position as a form of political protest.
Bell will also be remembered for his path-breaking scholarship. In Brown v Board of Education and the Interest Convergence Dilemma, Bell argued that the outcome of Brown was as much a product of other factors, including the realpolitik of U.S. statecraft, as of beneficent attitudes toward black progress. It was bad foreign policy for the U.S. to continue to discriminate against blacks, and this, according to Bell, reflected a larger theme in civil rights law. Whites, Bell observed, would only advance the civil rights interests of blacks when it served white interests to do so. It is a sobering and skeptical thesis, but it was an important antidote to the dry and abstracted debates about neutral constitutional principles, and it served as a building block for Bell’s larger message. In all of his scholarly work, from Neutral Principles through the narrative explorations with his fictional interlocutor, Geneva Crenshaw, Bell pushed us to see that legal principles can only go as far as politics will allow. While some found Bell’s message to be overly cynical or even stereotyping of whites, others, including this writer, found it refreshingly open and even hopeful. First, although his views were sometimes caricatured, Bell acknowledged that some whites are motivated by equality, anti-subordination, and other altruistic principles. Bell’s point was that without other motivations, the numbers often won’t add up to achieve racially progressive policies: “Here, as in the abolition of slavery, there were whites for whom recognition of the racial equality principle was sufficient motivation. But, as with abolition, the number who would act on morality alone was insufficient to bring about the desired racial reform.”
Second, Derrick Bell, as a person, was warm and encouraging of all students interested in using the law to make the world more just. He gave a speech at Berkeley in 1990 during my third year of law school, after he had taken his leave from Harvard to protest the school’s failure to hire African American women as tenure track professors. Before his lecture, Professor Bell led us in a song, “Swing Low, Sweet Chariot.” He transformed the courtroom that we associated with our collective anxiety about moot court into a church, a concert hall, a celebration of black music, spirituality and overcoming injustice. The message, echoed in his writings, was to go out there and do good things. Make the world a place where the most expansive civil rights agenda will flourish. The law will land where it will, reflecting the converged interests of the many and the few, so push the world a bit, even as you advocate for legal change. For my law school friends and me, that was Bell’s message, delivered in a medium that brought us to our feet and made us sing.