Excerpted from “First Annual HLS Critical Race Theory Conference: Reclaiming Our History of Scholar-Activism,” published April 12, 2019
In these perilous times, we must do no less than they [our ancestors] did: fashion a philosophy that both matches the unique dangers we face, and enables us to recognize in those dangers opportunities for committed living and humane service.
– Derrick Bell, Faces at the Bottom of the Well (1992), 195
Derrick Bell (1930-2011), a civil rights lawyer, a scholar-activist, and the first black tenured professor at HLS, helped found Critical Race Theory (“CRT”) in the 1970s. CRT is a movement that examines and seeks to transform the relationship between the intersections of our identities (e.g. race, ethnicity, gender, sexuality, and national origin) and state power, violence, and subordination. CRT scholars have three core tenets. First, racism and other forms of subordination are deeply embedded in the legal system and in the ordinary functions of our society. Second, both elite and working-class whites accrue benefits from this system and thus are often induced into helping to maintain it. This is known as interest-convergence theory. Third, racism and other forms of subordination are socio-political and economic constructs used to preserve the subordination of minority groups in an effort to preserve white supremacy.
Accordingly, CRT rejects the traditional civil rights incrementalist approaches and questions theories of “color-blindness,” liberalism, and neutral principles of constitutional law. Thus, CRT’s goals are to help lawyers, scholars, activists, and communities build social movements that are anti-oppressive and to dismantle systems of oppression rather than reform them. CRT uses various methods to accomplish these ends, including legal storytelling and narrative analysis of how people are marginalized by systems of subordination. This practice is deeply rooted in Latinx, Indigenous, and Black communities as a way to describe their conditions, unmask the gentility of their oppressors, dream of freedom, organize, and demand reparations. Bell was committed to this struggle and organized to get more faculty and students of color at HLS because he understood that law professors are complicit in preserving the dominant legal system of subordination. If law students are not trained to recognize how the legal system is designed to harm historically marginalized people, then students will go on to harm these communities, too. While his commitment was unwavering, HLS did not accept his asks. So Bell left HLS in 1980. But his teachings, mentorship, and scholar-activism sparked a CRT movement.
History of CRT Activism at HLS
The decades-long battles to get CRT, faculty of color, and students of color at HLS was led by students of color, namely the Black Law Students Association (BLSA). In the midst of national affirmative action litigation,[1] BLSA, La Alianza, and the Third World Coalition carried on Bell’s charge. After years of negotiating with the HLS administration to provide a substantive curriculum on race and law and hire more faculty of color, the administration only offered a three-week J-term course. After boycotts, a school-wide referendum where over 75% of students supported these demands, and threats to sue HLS for discriminatory hiring practices failed,[2] students walked out in front of Langdell Library. Joseph Garcia (’83), then-president of La Alianza, shared demands for more faculty and students of color and a course on race and the law (i.e., CRT).[3]
In Spring 1983, a coalition of students, led by Kimberlé Crenshaw and Mari Matsuda, had enough and organized their own 14-week “Alternative Course” titled “Racism and the American Law” based on Bell’s textbook, Race, Racism, and American Law.[4] [5] Organizers stated that the Alternative Course was the “affirmative vision of what a course which purports to address the needs of their communities can and should be.”[6] With the financial support of student groups, the Alternative Course brought different scholars and practitioners to teach a different course each day. These instructors included Richard Delgado, Lizette Cantres (attorney at the Puerto Rican Legal Defense and Educational Fund), Linda Greene, Neil Gotanda, Charles Lawrence, Denise Carty-Bennia, and Haywood Burns. The course was supported by Critical Legal Studies (“CLS”) professors like Duncan Kennedy, Morty Horowitz, and Jerry Frug who provided students with independent credits for taking the Alternative Course. The course “was designed both to show the HLS administration that talented and qualified minority legal scholars [did] exist and to enable interested students to learn about racism and the development of civil rights litigation.”[7]
The course was immensely popular and demonstrated that the problem was not that there were no faculty of color or critical race theorists available but rather that HLS was acting as a gatekeeper, preventing qualified scholars of color and critical race theory from advancing. During and after the course, student organizers continued to engage with the HLS administration via public forums to get more faculty of color and a course on race and the law.[8] Student frustration grew when, in response to a question about what faculty members were doing to educate themselves regarding the needs of minorities and women, Professor Philip Heymann stated, “No one ever told you to come to Harvard Law School to learn how to be a woman or to learn how to be a Black …. Those are terribly important things in life, but this isn’t the place for you to come learn them.”[9] Student activism intensified. Then, in 1990, Derrick Bell took an unpaid leave, refusing to lecture again until HLS hired a black female professor. This act of resistance ultimately cost him his professorship because HLS failed to hire a black woman before Bell’s contract expired. Shortly thereafter, the HLS Coalition for Civil Rights in ‘89, made up of the affinity groups on campus, sued HLS claiming that HLS was engaging in discriminatory faculty hiring practices.
The Alternative Course was in many ways the first institutionalized expression of a CRT program at HLS. As a result of this organizing, students pursued careers as CRT scholars, lawyers, and activists fighting to dismantle systems of oppression. We recognize the labor that former and current HLS students and professors invested so that we could organize this conference this week. We recognize the successes achieved through years of HLS student activism: hiring the first black faculty member Derrick Bell in ‘69, founding the Latinx Law Review in ‘94, granting tenure to the first woman of color Lani Guinier in ‘98, removing a slaveholder’s crest from the HLS seal in 2016, and securing a memorial in 2017 in honor of African-Americans whose enslavement enabled the foundation and wealth of HLS.
Student Activism at HLS Today
In many ways, students of color, womxn, and queer folx at HLS are still fighting the same decades-long battles. We are still asking HLS to establish a critical race theory program, hire CRT tenured faculty, more racially diverse faculty, and more womxn. In a recent meeting with the Law School’s Curriculum Committee on April 10, 2019, students asked the Committee what they were doing to hire more diverse faculty and get a CRT tenured Professor. The Committee responded with the same tired response of “we’re looking into it but there are not many candidates and this process takes a long time.” Yet, when asked by a group of FedSoc members to bring more originalist and Conservative faculty to HLS, the Committee responded with “We’ve made two offers.”
…[W]e recognize that in order to bring change, students must organize and demand it. We also recognize that our long struggle to bring CRT to HLS is deeply connected to other students calling for gender equity at HLS, ending harassment and discrimination in the legal profession, a graduate student union, better financial aid policies, ending racism on campus, reparations, divestments from Prisons, establishing a movement lawyering clinic, and ending the US-backed Israeli settler-occupation and genocide in Palestine.