The Permanence of American Racism: Harvard, Derrick Bell, and the Origins of Critical Race Theory

Critical Race Theory emerged as one of the stiffest challenges to conventional late-twentieth-century legal thought. Its theorists, lead among them its founding thinker, Derrick Bell, drew upon older anthropological notions about the social construction of race to explain how the American legal system was complicit in the persistence—or more ominously, the permanence—of American racism. This paper will argue that Derrick Bell’s experiences at Harvard University influenced his pessimistic rendering of American law and society.

Harvard Law School hired Bell in 1969 to placate black student protests that were part of a nationwide movement to make universities more amenable to minority students. In 1971, Bell became the first African American to gain tenure at Harvard Law. Bell’s courses on law and race were legion among students, as was his famous casebook, Race, Racism, and American Law (1973). When he left Harvard in 1980 to become the dean of law at the University of Oregon, students organized protests to compel administration to replace him with a minority professor. When administration refused, students held their own course, where they continued to read Bell’s casebook. Bell returned to Harvard in 1986 for another four stormy years. In 1990, when Bell threatened to remain on unpaid leave until the law school hired a woman of color, Harvard fired Bell.

Out of these experiences at Harvard, Bell innovated the scholarship that formed Critical Race Theory. He took stock of how racism manifested in a supposedly colorblind institutional setting that operated much like the legal system. Just as Bell critiqued the hidden biases of the so-called Harvard meritocracy, he also leveled a sustained scholarly analysis of, in Cornel West’s words, “the historical centrality and complicity of law in upholding white supremacy.”