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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 bench.
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 Kimberl 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.