Critical Race Theory

One of a family of related progressive movements in the law—others include critical legal studies, Latino critical legal studies ("Lat/Crit"), and feminist legal theory—critical race theory sprang up in the late l970s in response to a widespread perception that the powerful civil rights coalition of the 1960s and early 1970s had stalled. Conservative administrations and an American public that seemed increasingly weary of hearing about race required new strategies and theories to deal with subtle, institutional, or color-blind forms of racism and a judiciary that no longer seemed eager to champion civil rights.

Derrick Bell, an African-American professor of law at Harvard Law School (later at New York University) and Alan Freeman, a white scholar teaching at SUNY-Buffalo Law School, laid the foundations of the movement that came to be called critical race theory and that would go on to transform our understanding of the relationship among race, racism, and official power. For his part, Bell contributed groundbreaking analyses of conflict of interest in civil rights litigation and of the role of white elite self-interest in explaining the twists and turns of blacks' racial fortunes. In an impressive article in Yale Law Journal, Bell pointed out that lawyers for elite civil rights organizations like the NAACP (National Association for the Advancement of Colored People), where he himself worked before entering law teaching, often were eager to pursue one agenda—law reform and innovation—while the client community wanted something else—say, better schools. The NAACP Legal Defense Fund, for example, relentlessly and courageously pursued school desegregation, while black parents often wanted something different—better funding for black schools.

If the first essay produced consternation and soul-searching among his colleagues in the civil rights movement, a second piece, on the role of interest convergence in determining the course of racial reform and retrenchment, raised eyebrows even higher. In "Brown v. Board of Education and the Interest Convergence Dilemma," Bell posited that the breathtaking advances of the early civil rights years came about not so much because of moral breakthroughs by the American public or liberal judges. Rather, they were needed in order to burnish America's tarnished image in the eyes of the rest of the world and also to avert the possibility of racial unrest at home. At the time, the United States had just concluded a world war of mammoth proportions and was in the early stages of a Cold War against the forces of godless, soulless communism. In this campaign for the loyalties of the uncommitted Third World (much of which was black, brown, or Asian), it ill served this nation for the world to see front page stories and photographs of lynchings, the Emmett Till murder, and southern sheriffs turning vicious police dogs loose on peaceful civil rights leaders such as Martin Luther King Jr.

At the same time, wartime service in the U.S. military had exposed black and brown servicemen and -women to environments comparatively free of racism, in which diligent service brought rewards, promotions, and even battlefield commissions. These black and brown soldiers, having fought and exposed their lives in defense of American democracy and freedom, were unlikely to return to the former regime of menial jobs and servile relations with white society. Unrest loomed.

This convergence of black and white self-interest—rather than altruism or advancing morality—brought about Brown v. Board of Education (1954), the l964 Civil Rights Act, and other reforms of that era. And when black advances no longer served the interests of elite whites, they were quietly withdrawn or limited by narrow judicial interpretation, administrative foot-dragging, or delay. Although his skeptical hypothesis was met at first with cries of outrage, Bell subsequently applied his interest-convergence hypothesis to explain the full sweep of black civil rights history, showing how the material interests of elite whites explain practically every major advance or retreat. And Mary Dudziak, a white professor teaching at the University of Southern California Law Center, verified Bell's hypothesis by examining a host of documents, memos, and archival material related to Brown v. Board of Education.

Around the same time Bell was writing, Alan Freeman was carrying out an extraordinary reinterpretation of the role of the U.S. Supreme Court in guiding the course of civil rights progress. Freeman showed how our usual interpretation of the role of the liberal Warren court was both right and wrong. The Court did indeed champion civil rights causes. But in doing so, it also served as a powerful legitimating tool by confining change to manageable dimensions and denying relief for any but the most clear-cut violation.