The Void That Critical Race Theory Was Created to Fill

In 1971, Derrick Bell, a forty-year-old civil-rights attorney, became the first Black professor to gain tenure at Harvard Law School. A soft-spoken and prolific scholar, with glasses and a short fro coming to a widow’s peak, Bell was a Pittsburgh native and Air Force veteran who, before his career in academia, had worked with Thurgood Marshall composing legal strategies against school segregation in the South, at the N.A.A.C.P. Legal Defense Fund, and as the deputy director of civil rights at the U.S. Department of Health, Education, and Welfare. At Harvard, he created and taught the school’s first course of its kind on civil-rights law, providing students the only sanctioned opportunity for left-of-liberal legal training on the interworking of race and power. As a scholar, he published studies such as “Serving Two Masters,” in which he argued that the pursuit of racial balance in schools following the landmark ruling in Brown v. Board of Education was eclipsing efforts to improve the quality of education for Black children, leaving civil-rights lawyers compromised between their clients’ interests and the law.

Bell was a knowing token of sorts. “It became untenable for them to be an all-white institution,” he recalled, of Harvard, in an interview in 1993. “The status quo was better stabilized by moving in this direction a little bit.” But over the years Bell grew increasingly displeased with the school’s stagnant hiring practices regarding minority professors. He threatened to leave, and, in 1980, he did, moving on to the University of Oregon, to become the dean of its law school. (He would later resign from that post, and from a second post at Harvard, over the institutions’ resistance to hiring women of color.) Upon his departure from Harvard, Constitutional Law and Minority Issues was dropped from the curriculum. The following academic year, the Black Law Students Association met with the school’s dean, James Vorenberg, urging that the course be continued and that a Black professor qualified to teach it be hired. According to the scholar Kimberlé Crenshaw, who was a Harvard Law School student at the time, Vorenberg asked the students what was “so special” about Constitutional Law and Minority Issues. In terms of hiring, would they not prefer an “excellent white professor” over a “mediocre Black one”? Rebuking this false choice, the students compiled a list of thirty Black professors whom the school might consider. (All ten of the professors hired that year were white.)

In the spring of 1982, Vorenberg announced a three-week course on civil-rights litigation, to be taught by two part-time hires, including the prominent white civil-rights attorney Jack Greenberg. To the students, this was a placative offering, which would remedy neither the void in their legal training left by Bell’s departure nor the need for a full-time minority hire. They boycotted the mini-course and held rallies and sit-ins. In response, the dean sent a letter to second- and third-year students (which he later released publicly), lodging what was more or less an accusation of reverse racism: protesting the course because it was co-taught by a white lawyer worked “against, not for, shared goals of racial and social justice,” he wrote. Even the civil-rights leader Bayard Rustin, in a letter to the Times, chastised the students for what he said was their “blatant racism.” (Never mind that many of the students who joined the protests were white—this was Harvard, after all.) At a picket outside the course’s first session, in January of 1983, Crenshaw, in her third year at the school, gently refused such framings. “This whole charge of reverse racism has done what it was intended to—to obscure the real issue,” she told an A.P. reporter. (Harvard Law School declined to comment.)

In the midst of this protracted conflict, students led by Crenshaw and another future scholar and professor of law, Mari Matsuda, devised a means of accessing the education that they needed. They designed what they called the Alternative Course, premised upon a concept of the law not as a static, neutral entity but as “fundamentally political.” More robust than a reading group or a workshop, the course featured guest lecturers such as Charles Lawrence, Linda Greene, Neil Gotanda, and Richard Delgado, all experts in the legal dimensions of civil rights who were developing studies of the law as a racial document. The Alternative Course laid the groundwork for understanding not only racism within the law but also “how law was a constitutive element of race itself: in other words, how law constructed race,” as the editors of “Critical Race Theory: The Key Writings That Formed the Movement,” from 1995, wrote. Its core text was a book, from 1973, by the man who had inspired the program’s founding: Bell’s “Race, Racism, and American Law.” The course, Crenshaw later wrote, “set in motion a chain of events that would provide fertile ground for the emergence of CRT,” or critical race theory (a term that, along with “intersectionality,” she has been credited with coining).