The arc of injustice appears to have swung full circle with the January 22 banning of Critical Race Theory by the Mississippi State Senate and the subsequent walk-out of all 14 Black senators that was televised around the world.
The late attorney and Harvard Law professor Derrick Bell, who played a big role in desegregating Mississippi’s schools and colleges in the 1960s, saw the current predicament coming and in later life seriously questioned whether the fight was worth it.
Bell first came to Mississippi in late 1961 as an NAACP Legal Defense Fund lawyer to provide legal support for Freedom Riders, voting rights activists, and for James Meredith’s epic challenge to the Ole Miss Law School admissions policy in 1962.
“I spent so much time in Mississippi that officials there assessed, and I paid state income taxes,” Bell once said.
Bell was arrested by Jackson police in January 1962 for using the telephone inside the white side of the Greyhound Bus Station. He was one of five Black people who had been arrested between November 1, 1961 and February 2, 1962 for attempting to either buy bus tickets or use the facilities at the station, although the federal courts had banned racial segregation in all commercial transportation facilities in November 1961.
Bell was most noted in Mississippi for his work with Winson and Dovie Hudson in the desegregation of the Leake County schools. But it was his arrest and appearance in court as one of three plaintiffs in the April 1962 case The United States v. The City of Jackson, Mississippi that began to sow his doubts about possible justice for Black people in the South or elsewhere in the United States. The case was decided in favor of the plaintiffs.
“There is in the deep South legions of whites determined, often valiantly determined, that the court’s desegregation orders would never be enforced,” Bell wrote in the foreword to Winson Hudson’s 2002 autobiography Mississippi Harmony. “For them separate and unequal was more than a racial policy; it was a narcotic under the influence of which even the lowliest white person could feel superior.”
Bell won the case of Hudson v. Leake County School Board for desegregation in 1964, but he came to realize that the historic Rosenwald school in Harmony would be closed.
Winson Hudson was the first woman to organize an NAACP chapter in Mississippi and was hoping to restore the traditionally Black school – an old Rosenwald Foundation gift to the community, while the NAACP pushed for the desegregation of the public schools in the community. The desegregation cause won out and the first Black child to enroll in an all-white public school – Debra Wilson – was admitted in fall 1963.
“Years later, I was talking to the Hudson sisters at a conference,” Bell wrote in Mississippi Harmony. “By that time, they had fought and won battles to vote, to integrate public facilities, to get their fair share of government loans and subsidies – mainly through persistence and most of it without litigation. I reminded them of the counsel I had offered when they came to Jackson seeking legal help in reopening their Harmony school.
“‘Looking back, I said, I wonder whether I gave you the right advice.’ I may have been seeking sympathy. I didn’t get it. ‘Well, Derrick,’ Winson responded. ‘I also wondered whether that was the best way to go about it.’”
By this time in 2002, Bell had twice been a tenured professor at Harvard Law School and the dean of the law school at University of Oregon.
His questions about the seeming futility of the battle for racial equality gave rise to Critical Race Theory (CRT), reporter Jelani Cobb says in the September 13, 2021 edition of The New Yorker.
“Within a few years, as volatile conflicts over affirmative action and school busing arose, those victories began to look less like an antidote than like a treatment for an ailment whose worst symptoms can be temporarily alleviated but which cannot be cured,” Cobb said.
“He drew an unsettling conclusion: racism is so deeply rooted in the makeup of American society that it has been able to reassert itself after each successive wave of reform aimed at eliminating it. Racism, he began to argue, is permanent. His ideas proved foundational to a body of thought that, in the nineteen-eighties, came to be known as critical race theory.”
Bell, Cobb reports, had many doubts about the impact of his efforts to integrate at the expense of losing a Black school.
There is a direct line that traces CRT back to classical philosophy, especially to Immanuel Kant’s Critique of Pure Reason (1781). Kant was to explore the elements of the mind (reason) independent of real-world objects (phenomena). His successor, Hegel, sought to unite the inner world of reason with the objective world through his system of “dialectical” analysis.
Karl Marx’s Capital: A Critique of Political Economy (1859) used Hegel’s ideas to establish “dialectical materialism,” the foundation of an economic system that could lead to a classless, and therefore, egalitarian society bound by the principle of “from each according to his/her ability, to each according to his/her needs.”
Modern Critical Theory is a social philosophy first developed at the University of Frankfurt in Germany and is known as the Frankfurt School. After the Nazis came to power, the school’s director Max Horkheimer, in 1935, transferred his operation to Columbia University. Adherents of the new Critical Theory sought to combine the thought systems of Marx and Sigmund Freud to varying degrees and gained a wide following among American social theorists.
In the 1970s, a group of young lawyers sought to use the principles of Critical Theory as a method for lending substance to the legal system that came to be known as Critical Legal Theory or Critical Legal Studies (CLS). CLS asserts that the wealthy and the powerful use the law as an instrument of oppression in order to maintain their place in the social hierarchy. Many of the ideas that were important in CLS were adopted by some of the students who were influenced by the writings of Derrick Bell.
Kimberlé Crenshaw enrolled in Harvard Law in 1981 to study under Bell but found that he had accepted the law school deanship at the University of Oregon. When she and other interested students discovered that none of Bell’s former courses dealing with racial issues under American law were being taught, they organized a forum in 1982 and invited top legal scholars from across the nation to come and give lectures on the theories developed by Bell.
“Some students interpreted this omission as disregard for issues of race, and it gave rise to the first of two events that, in particular, led to the creation of CRT,” Cobb said. “The legal scholar Kimberlé Crenshaw, who was a student at the law school at the time, told me, ‘We initially coalesced as students and young law professors around this course that the law school refused to teach.’ In 1982, the group organized a series of guest speakers and conducted a version of the class themselves. The collection of course lectures was later published under the title Critical Race Theory: The Key Writings that Formed the Movement.
Cobb reported that towards the end of his life, Bell responded to the question of what Critical Race Theory is by saying, “I don’t know what that is.”
“He was just telling his story,” Cobb said. “He was telling his truth, and that’s what he wanted everyone to do.”
Derrick Bell died in 2011, a professor of law at New York University at the time. Bell had given up his job at Harvard in 1991 to protest the university’s neglect to hire a Black woman to the law school faculty.
He accepted a visiting professorship at NYU, offered to him in 1991 by the dean of the law school who happened to be one of his former students. Harvard did not add a Black woman to its law faculty until 1998. She was Lani Guinier. Bell remained at NYU until his death at age 80.