Race, Rights, and Redemption: The Derrick Bell Lectures on the Law and Critical Race Theory

By Janet Dewart Bell

Leading legal lights weigh in on key issues of race and the law—collected in honor of one of the originators of critical race theory

“Penetrating essays on race and social stratification within policing and the law, in honor of pioneering scholar Derrick Bell.” —Kirkus Reviews (starred review)

When Derrick Bell, one of the originators of critical race theory, turned sixty-five, his wife founded a lecture series with leading scholars, including critical race theorists, many of them Bell’s former students. Now these lectures, given over the course of twenty-five years, are collected for the first time in a volume Library Journal calls “potent” and Kirkus Reviews, in a starred review, says “powerfully acknowledge[s] the persistence of structural racism.”

“To what extent does equal protection protect?” asks Ian Haney López in a penetrating analysis of the gaps that remain in our civil rights legal codes. Sherrilyn Ifill, president and director-counsel of the NAACP Legal Defense Fund, describes the hypersegregation of our cities and the limits of the law’s ability to change deep-seated attitudes about race. Patricia J. Williams explores the legacy of slavery in the law’s current constructions of sanity. Anita Allen discusses competing privacy and accountability interests in the lives of African American celebrities. Chuck Lawrence interrogates the judicial backlash against affirmative action. And Michelle Alexander describes what caused her to break ranks with the civil rights community and take up the cause of those our legal system has labeled unworthy.

Race, Rights, and Redemption (which was originally published in hardcover under the title Carving Out a Humanity) gathers some of our country’s brightest progressive legal stars in a volume that illuminates facets of the law that have continued to perpetuate racial inequality and to confound our nation at the start of a new millennium.

With contributions by:
Michelle Alexander
Anita Allen
Derrick Bell
Stephen Bright
Paul Butler
John Calmore
Devon W. Carbado
William Carter Jr.
Emma Coleman Jordan
Richard Delgado
Annette Gordon-Reed
Jasmine Gonzales Rose
Lani Guinier
Cheryl I. Harris
Ian Haney López
Sherrilyn Ifill
Charles Lawrence
Kenneth W. Mack
Mari Matsuda
Charles Ogletree
Angela Onwuachi-Willig
Theodore M. Shaw
Kendall Thomas
Patricia J. Williams
Robert A. Williams

• Language: English
• Publisher: The New Press
• Release date: Nov 16, 2021
• ISBN: 9781620977354

Book preview

Introduction

CONGRESSWOMAN BARBARA LEE

As a student during the 1970s, I was also a community worker with the Black Panther Party in Oakland, California. There were very few academics who, for me, spoke about systemic and structural racism in an honest and forthright manner. Derrick Bell was one of the few professors who, in many ways, embodied the principles guiding the work of black, progressive, revolutionary organizations. Derrick’s visionary work and clarity about racism, the laws that continue to perpetrate this system, and how to dismantle them and create a true system of justice, helped me formulate my political consciousness and work.

I remember that, while I was working for a great warrior for peace and justice—the late Congressman Ronald V. Dellums—I had the privilege to meet Derrick Bell, mainly at conferences and lectures, and thought he should run for public office. I told Ron that, and we concluded that Derrick was too valuable as a renowned attorney and scholar, whose work should undergird the agenda of black elected officials committed to transforming this country. Derrick Bell’s brilliance was as important then as it is today—as we witness the movement for black lives throughout the country. We owe Derrick Bell a debt of gratitude for his brilliant legal mind as he addressed racism at its core. I am privileged to have been a student from afar of this great human being.

A bold legal scholar, educator, author, activist, veteran, husband, father, brother, mentor, and friend, Professor Derrick Bell was a preeminent intellectual and a fearless harbinger of change. He was a man who inspired many to advocate for civil rights, hiring equity, and judicial reform, and his stories of individual protest will be a timeless call to action for all who stand for justice. We continue to look to Professor Bell’s legacy and the outstanding quality of his life’s work.

Derrick Albert Bell Jr. was born to Derrick Albert and Ada Elizabeth Childress Bell on November 6, 1930, in Pittsburgh, Pennsylvania. He graduated from Schenley High School and became the first member of his family to attend college, receiving his bachelor’s degree in 1952 from Duquesne University. In 1957, after serving as an Air Force officer for two years, Professor Bell earned his law degree at the University of Pittsburgh School of Law, where he was the only black student.

With the recommendation of U.S. Associate Attorney General William Rogers, Professor Bell took a position with the Civil Rights Division of the U.S. Department of Justice, where he was the only black staff member. When, in 1959, the department asked him to relinquish his membership in the National Association for the Advancement of Colored People (NAACP), Professor Bell resigned. This would be the first of several high-profile resignations proffered in protest of racial injustice. He soon joined the NAACP Legal Defense and Educational Fund, where he oversaw more than three hundred school desegregation cases.

In the mid-1960s, Professor Bell served as faculty and executive director of the University of California’s Western Center on Law and Poverty. In 1969, partially as a result of black students’ protests for a minority faculty member, Professor Bell was recruited to teach at Harvard University—where after two years he became the Ivy League school’s first black tenured professor of law. He established new coursework and published law review articles dedicated to civil rights law, became an invaluable mentor to students of color, and called on the university to improve its minority hiring record. In 1972, he published Race, Racism, and American Law, a book that became a staple in law schools and is now in its sixth edition.

In 1980 Professor Bell left Harvard to become one of the first African American deans of a non–historically black law school, at the University of Oregon School of Law. However, he resigned five years later when the school did not offer a teaching position to an Asian American woman. After returning to Harvard in 1986, he led a five-day sit-in inside his office to protest the school’s failure to grant tenure to two professors whose work involved Critical Race Theory. In 1990 he took an unpaid leave of absence, pledging not to return until Harvard Law School asked a woman of color to join tenured faculty for the first time. (Eight years later, Professor Lani Guinier achieved that milestone.)

By the time the school refused to extend his leave, Professor Bell was already teaching at New York University School of Law, where he continued to be a visiting professor until his passing. Professor Derrick Bell’s long legacy as a pioneer of Critical Race Theory and as an unwavering upholder of principles earned him a comparison by Barack Obama, a Harvard law student at the time, as a civil rights hero akin to Rosa Parks.

Professor Bell dedicated his life to challenging academic paradigms and seeking justice for the systemically marginalized. His legacy will serve as a reminder that we must not be afraid to ask critical questions and to defend individual principles on behalf of future generations. The Derrick Bell lectures, established as a wonderful birthday tradition by Professor Bell’s wife Janet, perpetuate that tradition, bringing some of the deepest and most creative legal minds of our lifetimes to bear on the questions that mattered most to Derrick Bell.

1

No Justice, No Peace

CHARLES OGLETREE

1995

Charles Ogletree is the Jesse Climenko Professor at Harvard Law School and Founding and Executive Director of the Charles Hamilton Houston Institute for Race and Justice. He is a recipient of the ABA Spirit of Excellence Award, the National Black Law Students Association’s Lifetime Achievement Award, and the City of Boston’s inaugural Rosa Parks Civil Rights Award, and he has also been recognized as one of Ebony magazine’s 100 + Most Influential Black Americans. He obtained his BA and MA from Stanford University, and his JD from Harvard Law School. His most recent publication is a book co-edited with Professor Austin Sarat of Amherst College entitled Life Without Parole: America’s New Death Penalty? Other publications include The Presumption of Guilt: The Arrest of Henry Louis Gates, Jr. and Race, Class, and Crime in America.

It is indeed an honor and a privilege to have the opportunity to give the first Derrick Bell Lecture on Race in American Society. If I ever had to pose a question to my students about Derrick Bell, this is the question that would be on the exam: is Derrick Bell brilliant or crazy or both? And I think if they had to answer that question, they would say that there is some brilliance in Derrick Bell that’s indicated in his struggle as a lawyer, for he had to tolerate racist judges who would turn their backs on him when he argued for the government against segregation. There was something brilliant about his decision to think about progressive lawyering and start an institution in Southern California. There was something brilliant about his decision to resign from the government because they didn’t like the fact that he joined the NAACP; they thought that was a conflict of interest, as you can imagine.

And yet, there is something that’s also kind of crazy about Derrick Bell. The craziness is that he has such insight and foresight that it’s unimaginable. When Derrick Bell left Harvard out of protest recently, it was not for the first time. This was not Derrick’s first time leaving Harvard, and I’m not sure it’s his last time. The first time he left because Harvard had not tenured other people of color and wanted him to carry the entire burden. Once he left, they did find some people they could tenure, and Derrick went on to Oregon, a small but progressive law school, where he was the dean. When that school chose not to tenure an Asian American woman, the crazy Derrick Bell resigned and left. He went to Stanford, California, to Stanford Law School, to teach constitutional law. But instead of talking about the Commerce Clause and separation of powers, and the rule against perpetuities, and things like that, he talked about slavery. Can you imagine someone associating slavery with constitutional law? His law students complained because they didn’t think slavery had anything to do with constitutional law, and they wanted to study the Commerce Clause. And the brilliant and somewhat crazy Derrick Bell then agreed to be part of the student protest against his own class.

The brilliant-but-crazy Derrick Bell for some reason came back to Harvard, and when he came back, he set a tone as well. At Harvard Law School, the foreword to the Harvard Law Review is the most important part of the Law Review on an annual basis. It’s been around for generations, and has offered up some very provocative and creative thought. In 1985, the Harvard Law Review had its second woman president, Carol Steiker. She asked Derrick to write about the Constitution. And in 1985, the brilliant Derrick Bell had this crazy idea of writing about an African American woman who goes back to 1787, to the founding fathers, to try to explain to them what happened as a result of two hundred years of constitutional law. She first had to explain to them how in the hell a black woman could even be talking to them. And only the brilliant-but-crazy Derrick Bell was able to pull that off with the 1985 Law Review. And then the brilliant-but-crazy Derrick Bell came forward and offered us his first important book, And We Are Not Saved, which told us about the problems of racism in America and introduced us in a much more passionate way to Geneva Crenshaw. The brilliant-but-crazy Derrick Bell brought us Faces at the Bottom of the Well and set off a firestorm of talk about the permanence of racism in our society.

Today, in my imagination, the brilliant-but-crazy Derrick Bell, if you can imagine—you’ve read his allegories and his narratives—wakes up on his sixty-fifth birthday this morning at about five a.m., and, as he wakes up, he hears that voice again: it’s Geneva Crenshaw. She says, Derrick you fool, you finally got what you wanted.

Still trying to clear his head and wake up, Derrick says, What are you talking about, Geneva? What do you mean?

Derrick, remember at one of those speeches at Harvard in 1990, you said that if Harvard Law School ever tenured a woman of color, you would agree to be a white man. She says, Derrick, your wish has come true. Harvard has just tenured six African American women. They’re teaching law and economics, the principles of market analysis, estate planning and insurance law.

Derrick says, That’s great, Geneva. But what does that have to do with me?

It means you have to keep your promise, and you will become a white man.

And, of course, Derrick says, It will be a cold day in hell before that happens, Geneva.

She says, Okay, fool. You wouldn’t listen to me then, and now you’re going to regret it.

Still a little bit hazy, Derrick stumbles to the bathroom and there he turns around and looks in the mirror. He is a white man. He has blond hair, crystal blue eyes, and a bad case of acne. He can’t believe what is happening, and he shouts out, Janet, Janet, come here! And of course Janet comes to the bathroom, 5’ 9", 110 pounds, with her bright red hair, green eyes, and crystal clear white face.

Yes, Derrick, what’s your problem?

Janet, what happened to you?

Nothing, Derrick, why do you say that?

Janet, you are white!

Derrick, I’ve been white as long as I’ve known you. Is there a problem?

Derrick assumes he is losing his mind. He can’t believe this, so he rushes and heads to NYU Law School. He goes into his office, and there on his wall, where he has all of that famous and expensive African art, are a number of prominent pictures. Right in the center of his desk is one of General Robert E. Lee. There’s another picture of Derrick firmly shaking hands with former President Richard Nixon. And then the one that takes everyone’s eye, a picture of Derrick Bell, a bright, energetic law clerk, sharing a smile and a laugh with Chief Justice Warren Burger. And the final picture, blown up out of proportion, is Derrick in his tennis shorts talking and enjoying a friendly game of tennis with Chief Justice William Rehnquist.

Overcome by this, Derrick runs to the Federal Courthouse and into the chambers of his dear friend and colleague and mentor, Robert Carter. As Derrick bursts into Judge Carter’s chambers, before he can even speak, Judge Carter swings around, and he too is a white man. Derrick rushes from the judge’s chambers and heads back to NYU, where a student rally is waiting for him. He says, this is where I’ll have my moment. He runs to the student rally and he sees signs that say White Students’ Union, End affirmative action, No more immigrants, and States’ rights now. As Derrick is turning away, they say, no, no, no, come on up, Derrick! And there to introduce him as a speaker is none other than the Speaker of the House, Newt Gingrich. I’m very proud to introduce my friend, my colleague and compatriot, Derrick Bell.

Derrick again, in complete shock, leaves and runs back to his home. In another conversation with Geneva he says, What can I do? What can I do to change the situation?

She says, You better pray.

So Derrick gets on his knees and says, Dear Lord, please forgive me, for I have sinned. I know I’ve spent a lifetime criticizing white folks, but I really didn’t want to be like them. I wanted to enjoy being black, Lord, and I want my life back. If you give me just one more chance as a black man, I promise I’ll never criticize white people again.

And the Lord says, Derrick are you sure you want to keep this promise?

Derrick looks up and says, Well, never mind.

For Derrick’s sake, that’s simply a hypothetical. But it brings me to the topic of No Justice, No Peace, which stems from a little-remembered quote from Frederick Douglass more than a century ago. Douglass said that the justice system is bound to treat people differently because of their race, and that a black man hauled into court will never have the rights of a white man. The topic moves forward with the eloquent words of W.E.B. Du Bois who told us clearly that the problem of the twentieth century was the problem of the color line. And then a stranger to this land came here in 1944: Gunnar Myrdal. And he looked at our system and told us that something was amazing in America. He recognized the subordinate position of negroes and saw it as the most glaring conflict in the American conscience and the greatest unsolved task for American democracy.

Unfortunately, what Mr. Myrdal observed more than fifty years ago has a striking resemblance to America for African Americans today. It has a striking resemblance because Myrdal talked about the egregious situation of African Americans in the Southern states in the 1930s and 1940s and forward, and alluded to the less egregious situation of African Americans in Northern states, where he found the situation stemming more from blacks being poor and uneducated than from the color of their skin. While he tried to make that connection, what we all learned was that one’s race was largely determinative of whether justice could be found, particularly in the criminal justice system. What he noticed back in 1944 was that policemen stand not only for civic order by formal laws and regulations, but also for white supremacy and a whole set of social customs.

In both the North and the South, blacks were treated more harshly by police than whites. Blacks were more likely to be arrested under suspicious circumstances. Once in custody, the third degree was common, with brutal beatings to try to force confessions. Myrdal talked about police having a philosophy that made sure that blacks were kept subordinate: blacks should be punished, and punishment was the only device to keep blacks in their place. He cited cities where the rates of blacks being murdered by police were shockingly high. He also noted that more than half of all African Americans killed by whites at that time were killed by the police. He talked about the unequal distribution of justice throughout the system: Prosecutors preferred to target the disenfranchised African American population. They could run for office and continue to get re-elected as long as they continued to lock up blacks. He noticed the fact that many blacks did not have any kind of a representative or advocate on their side. They simply depended on the justice system to save them. He also noticed the fact that many of them had inexperienced lawyers to represent them in perfunctory ways in the system. Moreover, it was clear that there was greater reliance on any white man’s testimony in the case of an African American. He wrote that when the defendant was black, there was an astonishing atmosphere of informality and lack of dignity in the courtroom, and speed more than justice was the ultimate goal. He also talked about the disparities in punishments between blacks and whites.

Since Gunnar Myrdal’s findings in 1944, we’ve had major changes in the law, from the revolution of Gideon v. Wainwright to Miranda v. Arizona, and other progressive cases. But the black man’s burden is still the criminal justice system. We find in 1995, as we talk about the justice system and extreme punishment, that it is no longer South Africa, which has abolished the death Penalty, or the Soviet Union, which has been destabilized, that are the leading perpetrators of the ultimate injustice. It is the United State that is now the leading advocate and proponent of capital punishment and that continues to warehouse hundreds and hundreds of African American men and women facing the ultimate Penalty, many without competent counsel or resources to defend themselves.

We find in 1995 that one in three African American males between the ages of twenty and twenty-nine is in prison or jail, awaiting trial, on probation or parole, and the number will only get worse by the end of this century. We find that so many African American males who are in prison, seem to see it as a step up in society, because they have rent-free lodging, twenty-four-hour medical service, free heat, and room and board. It is an irony that prison has become the preferred abode of so many African American males. We find in 1995 that there are over 800,000 African American men in prison, and that this country spends over six billion dollars annually to house and incarcerate them. We find as well that they represent over 50 percent of those incarcerated in our jails, while they represent less than 12 percent of the nation’s population. And even as we talk about disparity and differences and discrimination, our most revered leaders play into this racial narrative.

It started long ago, when President Reagan very effectively talked about welfare mothers, and never once mentioned that the vast majority of people on welfare are white. We found President Bush, when he ran for office, bringing out the Willie Horton argument that blacks are going to rape and injure and kill white women, effectively destabilizing the candidacy of Mike Dukakis. We found Jesse Helms telling North Carolinians that if they voted for Harvey Gantt, they were voting for affirmative action and preferences for blacks. We found in Boston a white man, Charles Stuart, telling the police that the person who took his wife and stillborn child’s lives was a black man—when in fact it was Stuart himself; black men were beaten and brutalized in Boston as a result. We found a white woman, Susan Smith, using as her defense in the tragic death of her children in South Carolina, the powerful claim that a black man had driven away with her two sons, and the nation stood in shock wondering whether or not it was true, when in fact Smith herself had drowned her own children. As much as we think we’ve made progress from the time of Gunnar Myrdal’s days, we are still in a mire when it comes to the criminal justice system.

And now it’s time for somebody to stand up and say something about what’s going on in this system. In the O.J. Simpson case, we have a jury comprised of some of the most conscientious and remarkable citizens, listening to the evidence, weighing the evidence, and coming back and saying, whether you like it or not, the government did not prove Simpson’s guilt, and reasonable doubt matters. The same people who condemned this jury were the people who talked about four white police officers being acquitted in the Rodney King beating and said, Well, the system works. The same people laughed and grinned when an all-white jury would not deliver a conviction for Medgar Evers’s killer; they still said the system worked. The same people thought it was okay for Emmett Till’s murder to go unanswered. And now they are outraged and talking about justice in the O.J. Simpson case. We still find today a dual system of justice, one black and one white.

The dichotomy extends beyond the criminal justice system. We also find it in our country’s selected leader for black America and our rejected leader for black America. The great military man, the brilliant strategist, the man who went into the Gulf and turned it around in an incredibly short period of time, is now deemed to be black America’s choice for president. In Colin Powell, the country has found an acceptable black man. Isn’t that amazing? Colin Powell. The country found Colin Powell because what was effective about him is that he’s articulate. Hmm, what does that mean? The country found Colin Powell, but what they haven’t found is that in every major poll taken, black people don’t know who he is. Many wouldn’t recognize him if they saw him, and they certainly don’t see him as the savior of the day. And yet, he is the selected black leader of America in 1995.

And then there’s the rejected leader. Louis Farrakhan has said so many awful and ugly and unforgiveable things, dominating the press while people ignore the African American public’s scream for leadership, for direction, for hope. We find Farrakhan being condemned and people saying you can’t separate the messenger from the message. And yet, a lot of people on the mall for the Million Man March came away saying, I’m going to go back home, and I’m going to stop being an abuser. I was there, and Derrick was there, and you didn’t see anybody who wasn’t sober, you didn’t see anybody selling or using drugs. The phrase of the day was Brother, where are you from? A term of endearment, not a threat. I stepped on more brothers’ feet that day than I’ve ever done before, and all anyone said was, It’s alright, Brother. Everything’s alright. The black men there were joined together in an incredible bond, with a sense of pride and respect and dignity, but also responsibility. It wasn’t enough to march, that was only the beginning. It was time to go back home and do something. And that’s what we must do.

The men at the March noted the great ironies in the criminal justice system, and realized that the responsibility to change them does not belong to anyone else but us. Just one example of the irony of our system is the drug courier profile. According to law enforcement, you can tell a drug courier when they’re traveling through the airport, not because they’re African American, but because when they buy their tickets they always use cash … or a check … or a credit card. And when they buy their ticket, they’re always traveling alone … or with another person … or with several people so they won’t be detected. And as they travel on the plane, it’s not that they’re black, but that they’re always carrying no luggage … or a small amount of luggage … or a lot of luggage, so you won’t notice them. But most important, you can always tell the drug courier profile because they’re always the first off the plane … or the last … or somewhere in the middle, so they won’t be detected. You can always tell the drug courier profile not by the color of their skin, but because they’re always flying from a city where drugs are sold … or to a city where drugs are sold … or over a city where drugs are sold. The drug courier profile is just one small example of the great irony of our criminal justice system.

So, when Derrick Bell told us the horror harvest has come, the summer has ended, and we’re not saved, that has currency today. When he told us to look at the face at the bottom of the well, and you will see the permanence of racism, he was not talking about 1787, 1863 with Frederick Douglass, the 1900s with W.E.B. Du Bois, 1944 with Gunnar Myrdal, or even 1995. He was talking about what appears to be the permanence of racism in its ugliest form, presented to us every single day in the criminal justice system.

Justice William Brennan had the unfortunate task of writing a dissent in McCleskey v. Kemp, a death Penalty case in 1987. He told Warren McCleskey that one day McCleskey was going to ask his lawyer, Why am I dying? Why am I as a black man, of all the people charged with homicides, going to get the death Penalty? And Justice Brennan said, a truthful answer from the lawyer would have to be, It’s not because of the charge or your past record, or where the offense was committed. It’s because of race. He would have to say that, if your victim is white, that’s almost a guarantee that you will be given the death Penalty. And if, as a defendant, you are black, that only increases the possibilities. But the court, in responding to Justice Brennan, said, "racial disparities in our criminal justice system are inevitable."

This takes us back to my friend and mentor’s words that racism in our system is inevitable. But it’s not forever, I hope. And I hope that when we see black men going through the revolving door of our justice system, someone will stand up and say it’s wrong. I hope when we see these drive-by shootings of blacks shooting blacks for target practice, that someone will stand up and say it’s wrong. I hope when we see police like those who beat Rodney King and police like the racist Mark Fuhrman in the O.J. Simpson case, who injured all of us, somebody will stand up and say it’s wrong. I hope when we see people like Malice Green being beaten to death in Detroit that somebody will stand up and say it’s wrong. I hope when we see black police officers in New York City working the subway undercover, and white police officers shooting them not once, not twice, not five, not sixteen times, but nineteen times, that somebody will stand up and say it’s wrong.

What makes me have a sense of hope and inspiration is that one person has already stood up to say it’s wrong and has given me the sense that we can overcome these injustices, and that is my dear friend, colleague, and mentor, Derrick Bell. Justice may be blind, but we cannot be blind to injustice. And if we are going to make a change in this society, we have to listen to Derrick and not think he’s crazy, but recognize his brilliance and recognize that if we are going to survive in the twenty-first century, we had better start now in erasing the problems of racial prejudice in our society.

2

Each Other’s Harvest

CHARLES LAWRENCE

Spring 1998

Charles Lawrence is a professor at the William S. Richardson School of Law and University Centennial Professor, Emeritus, at the University of Hawai’i, Manoa. He began his teaching career at the University of San Francisco in 1974, and has been a tenured professor at Stanford and Georgetown. Professor Lawrence obtained his BA from Haverford College and his JD from Yale Law School, and he is best known for his prolific work in antidiscrimination law, equal protection, and Critical Race Theory. He received the University of San Francisco School of Law’s Most Distinguished Professor Award, Stanford Law School’s John Bingham Hurlburt Award for Excellence in Teaching, and the Society of American Law Teacher’s national teaching award. His most recent book, We Won’t Go Back: Making the Case for Affirmative Action, was co-authored by Professor Mari Matsuda.

The title of my talk tonight, Each Other’s Harvest, comes from a poem by an individual with much greater talent and skill than mine at poetry, Gwendolyn Brooks. But I can’t do a lecture in Derrick Bell’s name without reading a poem that I wrote for him, quite a long time ago, when Derrick Bell first received the Society of American Law Teachers teaching award. The poem is titled Derrick Bell Superstar. And the subtitle of the poem is And He Looked Good Doing It, Too.

DERRICK BELL SUPERSTAR

They called it affirmative action.

"If you want to play in the big leagues," they said,

"you’ve got to prove you’re qualified."

And he knew the you’re meant us as well as him.

You’ve got to dance in the classroom, though we seldom do.

"To be a podium Fred Astaire," they said,

"you’ve got to prove you’re qualified."

And he showed them the James Brown and the Michael Jackson too.

"You’ve got to write a deathless prose, and lots of it too

To be Stravinsky of the printed page," they said.

"You’ve got to prove you’re qualified."

And he introduced them, to Duke Ellington and Stevie Wonder.

"You’ve got to make a contribution to the law school

To be our conscience and our spokesman too.

You’ve got to prove you’re qualified."

And he took the loaves and fishes of his 24-hour day and fed the multitudes.

"You’ve got to walk on water," they said.

And when he did, and looked good doing it too

They said, By God, we think you’re qualified.

And Derrick cried because he knew the you’re meant him not us.

But we rejoiced as our man took it to the hoop.

We said, Right on, blood. And slapped high-fives.

And each of us took careful notes.

We knew we’d have to walk on water too.

A recent Doonesbury cartoon depicts Joanie Caucus returning to the Berkeley Law School for alumni weekend.

Here’s your reunion packet, an earnest young man from the Development Office, says to Joanie. Welcome back to Berkeley.

Thanks very much, says Joanie.

Is this your first visit since graduation? the young man asks Joanie.

Yes. I guess it is, she says.

Well, I think you’ll find Boalt Hall is the same fine place you remember in every respect, practically.

Practically? Joanie asks.

Well, we no longer admit black people, but other than that.

Trudeau’s genius is the truth his characters speak. The earnest young man’s face exudes liberal angst. But rather than the expected excuses and euphemisms, he simply says, We no longer admit black people.

In fact, the law school at Berkeley admitted fourteen African American students last year, seventy-five fewer than had been admitted the year before. All of them wisely, I think, decided to attend law school elsewhere. Leaving as the lone black person in this year’s entering class a young man who had deferred his admission from the previous year. At UCLA, only twenty-one black students had been admitted, an 80 percent drop from the year before, and the lowest number of African Americans offered admission since 1970. The decline among Latino students at each law school was similar. At the University of Texas at Austin law school, there are three black students in the first-year class, and only fifteen African American students overall—this at a school that had almost 150 African American students in its most recent graduating class.

The stark reality is that, unless something is done to reverse this trend, these will soon be segregated institutions, in fact if not in law. If you do not believe that the re-segregation of these state flagship law schools is significant and even tragic, consider that the University of Texas has 650 African American alumni. That’s since the very recent case of Sweatt v. Painter. The University of Texas has 1,350 Mexican American alumni. Berkeley and UCLA have, together, graduated more than 600 black lawyers and more than 800 Mexican American lawyers in just the past ten years. Take a look around NYU and think about the colleagues who would not be here but for a door pushed open by affirmative action.

There were four black students in my class at Yale Law School. When I first met Derrick Bell, in 1969, the minority professors at the Association of American Law Schools Conference could all sit down at one not-very-large table. I began my law teaching career at the University of San Francisco in 1974. I was one of four new professors hired by USF that year. Three of us—Stephanie Wildman, David Garcia, and I—did not look like what our students expected to see when they walked into their classes. USF had never had a Chicano law professor before. And, while a black woman had taught there two years previously, her stay was short-lived. Stephanie and I were, respectively, the only woman and the only African American on the faculty. We were the law school’s first diversity hires. We were pioneers integrating a segregated institution. And we were proud to be the beneficiaries of affirmative action.

The student body was as white as the faculty. There was one black student in my first constitutional law class. Later, I learned that after my first class, a small delegation of white students had gone to the dean to complain that they had been assigned to my con law section. They felt shortchanged that they were being taught by the affirmative action hire. I remember feeling a mixture of pain and anger at hearing this. I was certain that they had not bothered to find out who I was, to discover that, even by traditional criteria, I was easily as well qualified as my colleagues. However, I was not surprised. The ideological attack on affirmative action had already begun in earnest, and the legal attack would soon follow.

Even at this early stage in the integration of these institutions, when the number of people of color teaching and studying at law schools was minuscule, white students were familiar with the rhetoric of reverse discrimination and preferential treatment, and fearful that our presence would somehow mean less room for them. In later years, when I welcomed first-year minority students who’d been admitted under USF’s fledgling affirmative action program, I would tell them the story of my first days as a law teacher. I wanted them to know that their black professor, who by then had won the Law School’s teaching award and begun to build a reputation as an up-and-coming young scholar, understood what they were about to experience.

They would be asked what they had scored on the LSAT, as if that score defined their whole being. Their classmates would tell them about a white college roommate with better scores whose place they had taken. They would be accused of lowering the standards of the entire school and told that they were responsible for the declining bar pass rate. The message would not always be explicit. It might take the form of lowered expectations or surprise at demonstrated excellence. But they would hear the message: you do not belong here. And their first lesson was to know that this message was false. I wanted them to understand that these were words spoken in defense of privilege disguised as merit. They were as bright as any of their classmates. If separate and unequal educational systems had deprived them of skills given to their white classmates, these were skills that could be learned and mastered.

They could match their peers at every task that was put before them. But I wanted them to remember that they were not there simply to play the game as it had always been played, to add a soupçon of colorful pigment and exotic culture to the world of the privileged. They were there to help change the law school, and when they graduated, the institutions where they would work: the firms, the boards, the prosecutors’ and public defenders’ offices, the judiciary, the boards of supervisors, and state legislatures. They had been admitted because, in addition to their intellect and academic skills, they brought with them special gifts of experience, understanding, insight, anger, compassion, and even love that are the legacy of the struggle against oppression.

When they graduated, they would take these gifts back home again to their families and communities, enhanced by new skills and an increased understanding of the politics of power that is law. Just as important, these were gifts to be shared with white classmates, teachers, and colleagues, and with friends and allies from other communities of color. These were the gifts most necessary to the achievement of our collective liberation from the disease of racism. Several years ago, I was invited to speak at the induction ceremony of a former student, Maria-Elena James, who had just been appointed United States Magistrate in the U.S. District Court of the Northern District of California.

Maria had been one of my students at USF. She was admitted under our affirmative action program and graduated with distinction. She had, during ten years as a public defender and family court judge, become a highly regarded and much-valued member of the San Francisco bar. The auditorium at the Federal Court building in Oakland was filled to overflowing with Maria’s large and loving family, and with people from every walk of life whose lives had been touched by this gifted and generous woman. It was a multicultural gathering that embodied what is best about this country. When the dignitaries in the audience were introduced, I could not help but swell with pride. Among them were two superior court judges, Martin Jenkins and Peggy Hora, and the U.S. attorney, Mike Yamaguchi; all had been my students, as had many others in the room.

On the stage with the other federal judges sat Saundra Brown Armstrong. Saundra had received one of the two highest grades in my evening constitutional law class. I smiled as I remembered the day Saundra came to talk with me in my office. As she rummaged through her handbag to find a pen, she pulled out a rather large gun and placed it on my desk. Oh, you didn’t know I was a police officer? she said when she saw the shocked look on my face. Saundra had earned straight As in the evening division while working days as an Oakland police officer. She had come to see me that day to seek my counsel. She had interviewed at several prestigious downtown San Francisco law firms, and, despite her outstanding record, none had made her an offer.

These individuals, and many others like them, who have changed the face of California and the nation’s bar, were part of a generation of minority and women students who came to law school in the early years of affirmative action. They ignored the many messages that told them they did not belong and became valued members of these law school communities. They founded the Black American Law Students Association (BALSA), La Raza, the Asian-Pacific American Law Students Association (APALSA) and the Women’s Law Association. They made life-long friends of all races.

When Allan Bakke filed his reverse discrimination suit and the first full-scale assault was launched against affirmative action, these students were in the front lines of resistance against that assault. They marched and held rallies and teach-ins. They signed petitions and helped draft amicus briefs. An understanding of what would be lost if the doors of these institutions were once again shut to folks of their communities, and a deep commitment to racial justice, were their gifts to their teachers and classmates. The struggle itself was a critical part of the education that makes them what they are today.

On October 12, 1977, the United States Supreme Court heard oral arguments in the Bakke case. Across the street from the Court and in cities from New York to Berkeley, multiracial crowds of young people raised placards and shouted, We won’t go back, putting the Court and the world on notice: Whatever the outcome of the proceedings inside the velvet-curtained courtroom, the struggle would continue in the streets. The protestors would not accept the return to the days when they and their communities were excluded from institutions of power and privilege.

When the Court announced its decision it was sharply divided. Four justices voted to strike down the medical school affirmative action program and order Bakke’s admission. They avoided the constitutional issue of whether a race-conscious affirmative action program violated the Equal Protection Clause and concluded that Bakke