Concluding our last post, we asked, how, within the space of just twenty years, was the Civil Rights revolution so successfully stymied in making lasting substantive changes to the circumstances of African Americans? The signs had indeed come down, formal equality had been legally established, massive victories were won for civil rights throughout the nation at every level of government, yet the historically expected and inevitable social and economic disparities suffered by African Americans seemed obstinate by the end of the 1980’s, even entrenched. Further, how did the “traditional segregationist discourse” that we outlined, trimmed of a few unacceptable phrases, become the dominant discourse in American society?

It was, in fact, the dilemmas caused by this rapid civil rights retrenchment that ultimately led to the formation of a critical theory of race—a peeling back of the common, normative assumptions of American life to find the root of racism’s hearty persistence, even where it was so publicly and universally condemned. As promised in the last post, we will now consider some essays written between the civil rights era and the formal emergence of Critical Race Theory in 1989, serving as exemplars of formative attempts to address these dilemmas.

A Bridge: Dr. Derrick Bell and School Desegregation

One important site of civil rights retrenchment was education. Beginning long before the Supreme Court upheld the Jim Crow doctrine of “separate but equal” in Plessy v. Ferguson (1896), civil rights litigators had been busy testing every legal aspect of segregation throughout the South, but to little avail. Suddenly, it seemed, in 1954 the Court made an abrupt pivot, ordering the end of state-mandated school segregation with its decision in Brown v. Board of Education. And this was no mean shift.

As Judge Robert L. Carter put it, Brown transformed blacks from beggars pleading for decent treatment to citizens demanding equal treatment under the law as their constitutionally recognized right. (Derrick Bell, “Brown v. Board of Education,” p. 518)

In our first group of articles under consideration, Dr. Derrick A. Bell, Jr. grapples both with the reasoning for this abrupt change and the reasons for its ultimate substantive ineffectiveness. And Dr. Bell was in a unique position to be able to address these issues, having himself litigated nearly 300 school desegregation cases at the height of the civil rights movement, becoming the first tenured Black professor at Harvard Law School, and then mentor to many of the Critical Race Theory (CRT) scholars we will be studying throughout this series. We might say that Bell was unique in having had one foot in the early civil rights establishment (CRE) and one foot in the more radical reaction to its retrenchment, making him a helpful bridge as we move toward the advent of CRT in the late 1980’s.

“Serving Two Masters: Integration Ideals and Client Interests in School Segregation Litigation”

In his 1976 “Serving Two Masters: Integration Ideals and Client Interests in School Segregation Litigation,” Dr. Bell called into question the tangible benefits of the civil rights establishment’s (CRE) push for formally desegregated schools as an end in itself. Alternatively, he argued, emphasis on the quality of education received by African American children should outweigh the goal of mere “racial balance,” and that, in practice, these goals were not synonymous as CRE lawyers (including Bell himself) had assumed.

Rather than widespread desegregation and educational equality, as Brown had seemed to promise, Dr. Bell concluded that “[t]he great crusade to desegregate the public schools has faltered” (p. 471). And the CRE itself shared some of the responsibility, though not due to lack of courage and commitment to the civil rights cause.

The Strategy

In 1934, explains Bell, the NAACP began a formal campaign to make public schools the site of legal pressure, with the stated goal of overturning legal segregation throughout the South.

The public schools were chosen because they presented a far more compelling symbol of the evils of segregation and a far more vulnerable target than segregated railroad cars, restaurants, or restrooms. (p. 473)

With the separation of the NAACP Legal Defense and Educational Fund (LDF) under Thurgood Marshall in 1939, cases were carefully selected throughout the nation to establish specific precedents, intending to build one upon another, creating a legal lattice of resistance to state sanctioned segregation. At first these legal activists struck at specific inequalities between White and Black institutions, but with the 1954 Brown ruling—and the following order that schools be integrated with “all deliberate speed,” kicking implementation down to lower courts—the NAACP focused its energies on bringing local districts into accordance with Brown.

The Theory

Throughout the early court battles, it became clear that the opinion of both the courts and the NAACP/LDF was that Brown mandated “equal educational opportunity”; but given the intrinsic nature of public schooling, the courts had left unclear what that would mean in practice. That is,

Desegregation efforts aimed at lunchrooms, beaches, transportation, and other public facilities were designed merely to gain access to those facilities. Any actual racial “mixing” has been essentially fortuitous; it was hardly part of the rights protected (to eat, travel, or swim on a nonracial basis). The strategy of school desegregation is much different. The actual presence of white children is said to be essential to the right in both its philosophical and pragmatic dimensions. In essence the arguments are that blacks must gain access to white schools because “equal educational opportunity” means integrated schools, and because only school integration will make certain that black children will receive the same education as white children. (pp. 477-478)

Hence, the emphasis was placed on the formal achievement of “racial mixing.” But by the time of Bell’s writing, such court ordered mixing had not achieved the stated ends of equal educational opportunity, the substantive goal of the CRE. In fact, the more districts were pressed to integrate, the more White families fled the districts’ neighborhoods, requiring increasingly disadvantageous means of integration, such as busing and consolidation of local districts into metropolitan districts, to achieve “mixture.” More and more, even Black parents began to reject these methods in favor of policies intended to make sure Black children received equal education, while the commitment of judges to the increasingly difficult project began to wane altogether. It was becoming clear that even schools properly integrated according to the “within 10% to 15%” rule were still poorly educating their minority Black students and predominantly Black schools continued both “separate” and “unequal.” According to Dr. Bell, what even the CRE had not yet reckoned with was that “court orders mandating racial balance may be (depending on the circumstance) educationally advantageous, irrelevant, or even disadvantageous” (p. 480).

Alternatives to the Rigidity of Racial Balance

If the original goal of the NAACP, the LDF, and the civil rights movement was to substantively change the subordinated circumstances of African American children, it was becoming clear, by the time of Bell’s writing in 1978, that the narrow, formal, focus of Brown inspired racial mixing litigation would not prove the adequate means to that end.

[N]either the NAACP nor the court-fashioned remedies are sufficiently directed at the real evil of pre-Brown public schools: the state-supported subordination of blacks in every aspect of the educational process. Racial separation is only the most obvious manifestation of this subordination. (p. 487)

Because of the deeply symbolic nature of school desegregation—an unquestionably important symbolism—civil rights lawyers had overemphasized the formal aspects of the movement at the expense of “the economic and political conditions that so influence the progress and outcome of any social reform improvement” (p. 513).

In the end,

… even successful school litigation will bring little meaningful change unless there is continuing pressure for implementation from the black community. The problem of unjust laws, as Professor Gary Bellow has noted, is almost invariably a problem of distribution of political and economic power. The rules merely reflect a series of choices by the society made in response to these distributions. “‘[R]ule’ change, without a political base to support it, just doesn’t produce any substantial result because rules are not self executing: they require an enforcement mechanism.” (p. 514)

Though Dr. Bell concludes, “[t]here is nothing revolutionary in any of the suggestions of this article” (p. 17), this piece caused a stir in the civil rights establishment of the mid 70’s. Brown had been the holy grail of civil rights lawyers, the basis for desegregation litigation throughout the nation. Anyone who opposed these integration efforts was either a civil rights heretic or a racist. But Dr. Bell prioritized the circumstances and well-being of Black children over the mere legal equality symbolized by “racial balance.” According to CRT scholars Kimberlé Crenshaw, Neil Gotanda, Gary Peller, and Kendall Thomas,

All that was necessary was a race-conscious perspective that focused on the effect of integration on the black community. That change in perspective is the intellectual starting point of Critical Race theory. (Critical Race Theory: The Key Writings That Formed a Movement, p. 2)


“Brown v. Board of Education and the Interest Convergence Dilemma”

Which brings us to our next article, “Brown v. Board of Education and the Interest Convergence Dilemma” (1978). As Dr. Bell noted in “Serving Two Masters,” the Black community had looked to the courts for legal remedies in frustration for decades, long after the 14th Amendment had supposedly granted equal protection. But “for a number of complex reasons,” the court finally responded in 1954. What, wondered Bell, was the legal basis of this shift in the Court? Not only did Bell believe the answer would solve an intellectual and historical curiosity, but would help to explain the failure of Brown to achieve its stated ends; as Bell notes, 22 years after the desegregation decision, “most black children attend public schools that are both racially isolated and inferior” (“Brown v. Board,” p. 518).

The Search for a Neutral Principle

After assessing several options for the legal principle which served as the basis of the Court’s reversal—suggested by professors Herbert Wechsler and Charles Black—and finding them all wanting, either ideologically or practically, Bell argued alternatively that “it is possible to discern in more recent school decisions the outline of a principle, applied without direct acknowledgement, that could serve as the positivistic expression of the neutral statement of general applicability sought by Wechsler” (p. 523), viz., the principle of “interest convergence.”

Translated from judicial activity in racial cases both before and after Brown, this principle of “interest convergence” provides: The interest of blacks in achieving racial equality will be accommodated only when it converges with the interests of whites. However, the Fourteenth Amendment, standing alone, will not authorize a judicial remedy providing effective racial equality for blacks where the remedy sought threatens the superior societal status of middle and upper class whites.

It follows that the availability of Fourteenth Amendment protection in racial cases may not actually be determined by the character of harm suffered by blacks or the quantum of liability proved against whites. Racial remedies may instead be the outward manifestations of unspoken and perhaps subconscious judicial conclusions that the remedies, if granted, will secure, advance, or at least not harm societal interests deemed important by middle and upper class whites. Racial justice—or its appearance—may, from time to time, be counted among the interests deemed important by the courts and by society’s policymakers. (p. 523)

That is, progress in “racial justice” has not been the result, primarily, of good will, moral integrity, or change of heart, but of temporary alignment of subordinated Black interests with predominating White interests; “the majority group tolerates advances for racial justice only when it suits its interest to do so” (Delgado and Stefancic, p. 176).

In the case of Brown, Bell cites as examples of compelling White interests the need for the United States to build credibility in the eyes of third world peoples in its struggle against communism, the pressure for equal treatment of returning Black veterans from participation in two world wars and the recently paused Korean War, and the middle and upper class White need for the South to finally transition “from a rural plantation society to the sunbelt with all its potential and profit” (p. 525). (There is, in fact, a preponderance of evidence now in support of the first reason suggested by Bell, the struggle with communist USSR. See, e.g., “Desegregation as a Cold War Imperative,” by historian Mary Dudziak.)

Dr. Bell argues that Jim Crow laws were first created by elite Whites to appease poor Whites with higher relative social status to Blacks, without thereby having to share power and wealth with their poor White laborers. But when the interests of elites had shifted, due to the international stage and national economic exigencies, those with power moved toward slackening Jim Crow segregation. When Brown, then, signaled the removal of this distinct social status enjoyed by Whites, they responded with outrage, “fear[ing] loss of control over their public schools and other facilities” (p. 525).

Interest Convergence Remedies Under Brown

Nevertheless, for a time, the courts continued to enforce desegregation remedies—but now, Bell argued, in order to assert the authority of federal courts in the face of the South’s “massive resistance” campaign.

For some time, then, the danger to federalism posed by the secessionist-oriented resistance of southern state and local officials provided courts with an independent basis for supporting school desegregation efforts. (pp. 529-530)

That is, continued enforcement, for a time, was yet another mere fortuitous convergence of interests between the courts and Black Americans.
But again, the intention of the court to wear an equitable face for the third world, to appease returning Black soldiers, to encourage economic advancement, and to serve the interests of federalism was not necessarily in the long term interest of Black students.

[T]he remedies set forth in the major school cases following Brown … have not in themselves guaranteed black children better schooling than they received in the pre-Brown era. Such racial balance measures have often altered the racial appearance of dual school systems without eliminating racial discrimination. Plans relying on racial balance to foreclose evasion have not eliminated the need for further orders protecting black children against discriminatory policies, including resegregation within desegregated schools, the loss of black faculty and administrators, suspensions and expulsions at much higher rates than white students, and varying forms of racial harassment ranging from exclusion from extracurricular activities to physical violence. (pp. 530-531)

And just ten years following the assassination of Martin Luther King, Jr., Bell could sadly report that the interests of the courts and the public had already began to diverge from those of Black American children, thus rendering the long term expectation of the CRE’s ongoing litigation increasingly ineffectual in achieving the substantive goals of the civil rights movement.

Given that the Brown decision is still considered the most important anti-discrimination ruling in American history, the implications of its basis in interest convergence speak profoundly to civil rights victories all throughout history. What it suggests is that even the greatest civil rights victories may themselves reinforce the subordination of Black Americans, only granting relief inasmuch as it is in White interests to do so. Again, in the words of Crenshaw et al.,

[L]aw is an undependable ally in the struggle for racial liberation. According to Bell, the traditional liberal image of law as the neutral, impersonal mediator of group conflict masks its function in producing and insulation white dominance. (p. 2)

And further, what happens when White and Black interest again diverge? We see the very retrenchment that we discussed in the last post. Of course, the laws remain on the books, the “White Only” signs are still removed, but without the felt interest of majority elites, the subordinated circumstances of African Americans continue unremedied.


“Racial Remediation: An Historical Perspective on Current Conditions”

In this next article, published in 1976, we gain a broader understanding of Bell’s approach. In particular, Bell suggests a revised understanding of past racial progress with an eye toward coordinating remediation efforts with historical realities. He begins by citing the common understanding of his day, among both “liberals,” “conservatives,” and the CRE, that racial progress, though gradual, was nevertheless inevitable:

Unquestioned belief in the eventual resolution of the country’s racial conflicts is an accepted article of American faith. In political terms, there is a national assumption that in several more years (the conservatives), or after the enactment of still more civil rights laws (the liberals), remaining obstacles to liberty and justice for all will finally fade away. (“Racial Remediation,” p. 5)

That is, after decades of civil rights work, the remedy is time. Bell, of course, demurs. He notes that the Founding Fathers included protections for slavery in the Constitution, assuming it would “soon expire of natural causes”; it did not. Others had more recently argued that amalgamation would soon enough turn everyone beige, naturally solving the problem of racism; but not only is the goal of eliminating distinctively African features a “gratuitous insult” according to Bell, but is unlikely on the current trajectory anyhow. And even though legal discrimination had been outlawed, “optimism must be tempered by past experience and contemporary facts.”

Racial discrimination, stifled but not stilled by a generation’s worth of civil rights laws and court decisions, continues to flourish wherever the spur of profit or the fear of loss is present. (p. 5)

Measurable improvement in the status of some blacks, and predictions of further progress have not substantially altered the maxim: white self-interest will prevail over black rights. This unstated, but firmly followed principle has characterized racial policy decisions in this society for three centuries. Racial policies are still based on the sense—no less deeply held when it is unconscious—that America is a white nation, and that white dominance over blacks is natural, right and necessary as well as profitable and satisfying. This pervasive belief, the very essence of racism, remains a viable and valuable national resource. The commitment to white dominance is no less potent because it is usually unrecognized, frequently unintended, and virtually never acknowledged.

He goes on to argue that optimism was often inspired by civil rights victories, not because Black interests were truly embraced and defended by elites, but because any change in the conditions under which Black Americans had suffered were, due to the sheer magnitude of the suffering, considered significant strides toward substantive equality. But, again,

… even a rather cursory look at American legal history suggests that in the past, the most significant political advances for blacks resulted from policies which were intended and had the effect of serving the interests and convenience of whites rather than remedying racial injustices against blacks … . (p. 6)

Black Rights—White Benefits

He first considers abolition in the North following the Revolutionary War. Though idealistic abolitionist propaganda abounded, what ultimately turned the tide, according to Bell, was the superior economic advantage of wage labor given the nature of northern industry and the interest of voting White laborers who did not desire to compete with slave labor. Even the emancipation plans themselves, Bell notes, effectively required the slaves to work off their own “purchase value” through gradual release and then left them without any rights of citizenship following their emancipation.

Second, Bell considers the Emancipation Proclamation during the Civil War. Again, as is well-known, the proclamation only freed slaves in the South with the clear intention to serve northern war interests, not primarily Black interests. Third, Bell considers the “Post Civil War Amendments,” viz., the 13th – 15th amendments, only to conclude:

Within a decade it became apparent that the 13th amendment abolishing slavery was obsolete. Southern planters could achieve the same benefits with less burden through the sharecropping system and simple violence. The 15th amendment, politically obsolete at its birth, was not effectively enforced for almost a century. The 14th amendment, unpassable as a specific protection for black rights, was enacted finally as a general guarantee of life, liberty and property of all “persons.” Corporations, following a period of ambivalence, were deemed persons under the 14th amendment and for several generations received far more protection from the courts than did blacks. Indeed, blacks became victims of judicial interpretations of the 14th amendment and legislation based on it so narrow as to render the promised protection meaningless in virtually all situations. (p. 11)

And, last, Bell considers the many desegregation victories, some already discussed above, arguing that three factors consistently characterized the outcome of these cases:

(1) the judicial relief sought is to curb conduct or policies clearly harmful to blacks, but relief is more likely to be forthcoming if the complained of activities are also damaging and embarrassing to the country’s stated ideals solidly embraced in the concepts of equal protection, free speech and due process; (2) the relief actually granted tends primarily to improve the country’s democratic image and only secondarily or collaterally to repair the harm which initially prompted the litigation; (3) subsequent non-racial decisions relying on the initial civil rights precedent often bring greater substantive benefit to the community at large than was obtained by blacks. (p. 14)

The Compromises of Civil Rights

Next, Dr. Bell discusses a “no less disturbing pattern” (p. 16), a pattern of conflicts between Whites being solved by disadvantaging Blacks. He first points to the Constitution itself, whose drafters “provided for [slavery’s] protection, representation, and supposed eventual elimination” (p. 19), in order to strike a compromise between pro- and anti-slavery delegates. Second, Bell discusses the colonial compromises which had preceded, creating the very institution of race-based chattel slavery itself on the North American continent. In the beginnings of colonial America, White and Black indentured servants worked together, slept together, and ate together. But when Black and White servants also began to run away together, protest together, and threaten violence against elite planters together, rights were granted to White laborers and removed from Black laborers, leaving the latter and their children as the only legal subjects of life-long servitude, while gaining the permanent allegiance of exploited White laborers. (I don’t think these facts are even disputed anymore.)

Third, he points to the failure of the Populist Party to represent both poor White and poor Black Americans in the common cause of economic justice. What had begun as a rainbow coalition of southern working poor soon descended into a lily White organization as leaders realized that Black votes could not effectively be corralled to White interests, leading to the exclusion of Black voters altogether through state constitutional amendments.

The fourth example of White compromise at Black expense offered by Bell is the so-called “Hayes-Tilden Compromise” following the presidential election of 1876. The Democrat Samuel J. Tilden had won the popular vote and led by one electoral vote, but the returns from the three states still largely influenced by Black leadership, office holders, and voters before the final demise of Reconstruction—South Carolina, Florida, and Louisiana—were questioned and recount orders issued. The recounts did not resolve the challenge and a commission of Congressmen, Senators, and Justices were convened to resolve the challenges. Eight of the fifteen were Republicans and each was decided in favor of Hayes, strictly upon party lines. In exchange for Democratic capitulation, the Republicans and Hayes promised to remove the final federal troops and protections remaining in the South to protect Black interests following the Civil War, effectively giving the Republican controlled South Carolina, Florida, and Louisiana over to Democratic control. This was accomplished in short order and Black Americans were dismissed from their elected state offices, voters disenfranchised, Black properties and businesses were lost, and state violence accompanied KKK violence with none of the federal protections promised after the War remaining. Bell cites Professor C. Vann Woodward to conclude the section:

The determination of the Negro’s “place” took shape gradually under the influence of economic and political conflicts among divided white people—conflicts that were eventually resolved in part at the expense of the Negro …. Just as the Negro gained his emancipation and new rights through a falling out between white men, he now stood to lose his rights through the reconciliation of white men.

The Second Reconstruction

Bell then moves to his intended application:

The parallels between the political, economic and social events of 1876, and the erosion in all three areas blacks are experiencing in 1976 are too remote to enable prediction and too close to ignore. (p. 20)

If, as I have suggested, rights for blacks require for survival a climate permeated with white self-interest, those rights can be expected to wither in the far more hostile atmosphere that exists when the interests and priorities of whites change. The post-Civil War experience teaches us that minority rights are worth only as much as those in the majority responsible for their enforcement are willing to invest. When interests change, support fades. The rights may remain on the books, but they are evaded rather than obeyed, repealed rather than enforced. (p. 21)

He goes on to detail the many ways in which the substantive gains of the Civil Rights Movement were rapidly being eroded, reversed, and retrenched before his eyes. The courts had begun to lose their will to address policies with clear discriminatory impact, as they had just following Brown, now requiring discriminatory intent be demonstrated; various means to disenfranchise voters, including redistricting and annexation, were now being allowed as supposedly based on “neutral” decision making; protesting and picketing had been curtailed by prosecuting civil rights leaders as criminal conspirators; etc.

The reactionary trend of these decisions, which show no indications of abating, illustrates again that while legal rights have strategic and tactical usefulness, black people cannot afford the luxury of viewing rights as more than they are. The Constitution, despite the benefits of the last two decades, could prove a very poor shelter if blacks rely entirely on it to save them from future political storms. (p. 22)

In the end, Dr. Bell doubts, based on the very history he has surveyed, that anything will ever substantially change. America was built on Black exploitation and even social scientists agree (Bell suggests Tilden W. LeMelle) that societies are unlikely to reconfigure themselves from the roots, “particularly a culture from whose inception racial discrimination has been a regulative force for maintaining stability and growth and for maximizing other cultural values” (p. 25). Again, the United States only acts against racism inasmuch as it predominantly serves the White majority, likewise causing them as little pain in the process as possible. As soon as the political or economic “irritant” is removed, the commitment to change rapidly retrenches.

To be clear, Bell does not suggest that White people don’t actually desire remediation of centuries of Black suffering, but, rather, he recognizes that this desire falls on a scale of priority; “racial equality, like whale conservation, should be advocated, but with the understanding that there are clear and rather narrow limits as to the degree of sacrifice or the amount of effort that most white Americans are willing to commit to either crusade” (p. 23).

Reformulating Racial Strategies

Taking into account this 300-year experience, argues Bell, suggests the need for a radically different path of remediation, a more historically informed path than that of natural momentum, inevitability, and legal incrementalism.

According to Bell, Black Americans’ traditional reliance on “rights” and voting have been misplaced. First, “[l]egal rights, whether based on legislative enactments or judicial decisions, should be pursued, but cannot be relied on to either improve or protect the black community.” Certainly rights exist, can be acknowledged, and can even be created (in a sense), but none of this, if history is to be our guide, ensures that application and remedies will follow. In many cases, the mere granting of the “right” encourages the public to decry any attempt by the disempowered to demand the substance.

Second, he argues, “Blacks must not depend on voting and the political process to protect their rights” (p. 26). This, Bell recognizes, is “the final heresy” among the CRE. Though acknowledging the many important advancements in voting rights and Black representation, he still believes that the socio-economically disadvantaged gain little from the process, and are regularly excluded anyhow. Even those Black representatives elected to office themselves “will likely find that black political power will be defused, diluted and discouraged before it can play more than a subsidiary role in the decisions that most affect blacks.” Rather, argues Bell, substantive programs, including “jobs for all who would work, decent housing and healthcare on a universal basis and educationally effective schools,” should be the focus of remediation, not simply abstract rights. And though these reforms would benefit more Whites than Blacks, Bell nevertheless believes that because a “disproportionately large percentage of the victims of social neglect are black,” Americans are unlikely to seek such remedies. He quotes Robert Heilbroner:

Programs to improve slums are seen by many as programs to “subsidize” Negroes; proposals to improve conditions of prisons are seen as measures to coddle black criminals; and so on. In such cases, the fear and resentment of the Negro take precedence over the social problem itself. The result, unfortunately, is that the entire society suffers from the results of a failure to correct social evils whose ill effects refuse to obey the rules of segregation. (p. 27)

In other words, “the class-buffer and compromise catalyst roles black people have performed” throughout American history makes it unlikely White Americans will seek such remedies, even those ultimately beneficial to themselves.

To conclude, Dr. Bell states that any program of remediation must be informed by the historical lessons culled from the events discussed above, including:

1) The nature, extent and probable permanence of racism in our society. Its pervasive influence in the improvement as well as regression in black status may be reduced by more careful consideration of how it works.

2) The necessity of remediation strategies that are pragmatic and flexible. Undue commitment to ideology, whether integration or separation, direct action or emigration, serve better individual actors rather than those for whom they claim to act.

3) The quest for racial equality cannot be delegated. Programs and policies should be structured to harmonize with the principle: “no one can free black people but themselves.”

4) Legal rights are not synonymous with substantive racial progress. Dedication to the enactment and enforcement of rights should be based on their actual rather than symbolic value.

5) Racial equality will not be achieved by requiring blacks to sacrifice their integrity, dignity, and sense of pride in race and self. (p. 28)

In retrospect, this list serves as a veritable research and action plan for those CRT scholars who would later follow Bell.



What each of Bell’s articles discussed above so clearly manifest is an approach that, while consistent with what we have called the “Traditional Civil Rights Discourse,” nevertheless embarks on a substantive departure from the growing civil rights establishment compromises of the 1970’s and 80’s. Bell’s work signaled a return to the more “radical” elements of W.E.B. Du Bois, Oliver C. Cox, Stokely Carmichael, and even Dr. King, with a renewed emphasis on race-consciousness, power dynamics, economic explanations, and substantive equality over symbolic equality. And Bell builds this departure (or return?) on a studied acknowledgement of the historically entrenched nature of racism—a racism not so much built on hatred as on perceived social exigency and self-interest. In response, Bell calls for an approach to remediation that’s less reliant on mere formal equality and legal rights, and more on substantive social, political, and economic reforms that target the subordinated circumstances of African Americans, rather than just their subordinated legal status.

Returning again to the questions revisited at the beginning of this post—those which we’ve argued ultimately led to the creation of CRT—the short answer suggested by Bell is, we see such rapid retrenchment of substantive civil rights progress because Black interests were only ever served inasmuch as they were byproducts of the legal pursuit of powerful White interests. When these interests diverge, or when Black interests are fruitfully sacrificed to create stabilizing compromises among the White majority, the priority scale dictates that efforts toward substantive equality be subordinated to the mere verbiage of formal equality.

In our next post, we will continue the intellectual bridge between the civil rights era, retrenchment, and the emerging Critical Race Theory by considering how antidiscrimination law itself had become a means of discrimination by the end of the 1970’s.

Some Questions
1. Dr. Bell was often criticized for his pessimism. Do you think, as a Christian, we should be optimistic about the prospects of godly social change, or pessimistic? In what ways do you think your eschatological view affects this answer, specifically with reference to racism?

2. At one point in Bell’s essay on racial remediation, he states: “The roots of those racial motivations seem too deep for anything short of miraculous eradication” (p. 23). In what ways does the good news of Jesus Christ answer to this need for “miraculous eradication”? Does one have to deny Bell’s historical assessment and suggested remedies in order to see the gospel as the solution to the “roots of those racial motivations”?

3. If you read the suggested articles at the end of our first post by W.E.B. Du Bois, does it make sense that Dr. Bell saw himself as carrying on Du Bois’ work? In what ways were they similar? In what ways did they differ?

4. Last, whether you agree or disagree with Dr. Bell’s arguments and conclusions, can you nevertheless see his motivation? See what dilemmas he was trying to answer? See what, as a civil rights veteran, had led him to offer views diverging from the CRE?

5. In what ways might interest convergence help explain the current national uprising against racism following the murder of George Floyd? Will we experience the same retrenchment? Are we already experiencing it?


Further Reading for Part 3

The Derrick Bell Reader, edited by Richard Delgado and Jean Stefancic

Faces at the Bottom of the Well, by Derrick Bell

White Superiority in America: Its Legal Legacy, Its Economic Costs,” by Derrick Bell

The ‘World,’ the Social Pathology of Sin, and the Comprehensive Solution : A Brief Reflection,” by Bradly Mason


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Bradly Mason

Bradly Mason

Bradly Mason is a husband, father of four, member of a historically Reformed church, and a cabinet maker by trade. Brad blogs occasionally at and can also be followed on Twitter, @AlsoACarpenter.

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