Politics

For Whom the Bell Tolls

By

Derrick Bell has a flair for the dramatic exit. The one that made him famous was his highly publicized decision in 1990 to leave his tenured position at Harvard Law School, where he had been the first black scholar ever hired. Bell quit after Harvard refused to offer tenure to a black woman he supported. But Bell had done the same thing at the University of Oregon six years earlier. And he had made the same threat at Harvard ten years before that. And back in 1959 he had quit the first job he ever held, at the Justice Department, over a matter of principle. Bell's extraordinary career has taken on the shape of a parable: it's the story of a black intellectual and activist, torn between engagement and disengagement with the white world, between belief in reform and repudiation.

For the past two years Bell has been leaching at NYU Law School. Despite New York's tumultuous racial politics, and despite his own position as one of the very few black intellectual celebrities, Bell has largely kept to himself. But this fall he published Fates at the Bottom of the Well, a book of fictional narratives that is sure to become an important part of America's ongoing racial debates. Faces poses the question Bell has asked for the last twenty years: Should blacks put their trust in the legal process that began with the civil rights movement? He has now reached a definitive answer; "Black people will never gain full equality in this country," he writes. "Even those Herculean efforts we hail as successful will produce no more than temporary "peaks of progress,' short-lived victories that slide into irrelevance as racial patterns adapt in ways that maintain white dominance." Bell has lost faith in engagement. Because of who he is, and because this issue seems to be splitting black culture in two right now, Bell's migration should not be taken lightly.

Bell himself has not been scarred by racial exclusion. In fact, his life has been one trailblazing success after another. Born into a working-class family in Pittsburgh in 1931, he put himself through Duquesne College and the University of Pittsburgh Law School, where he was the only black in his class. He graduated fourth. In his first job Bell recalls that he was the only black among 1,000 lawyers in the Civil Rights Division of the Justice Department. He quit the job when he was told to resign his membership in the NAACP, It was an act of principle, but it was also the confident act of a man who expected to land on his feet. Bell was immediately hired by Thurgood Marshall, the head of the NAACP Legal Defense and Education Fund, where he became an integral part of the desegregation struggle in the Deep South.

Bell supervised hundreds of school desegregation cases, stood his ground before racist judges and spent a night in a Mississippi jailhouse. But what he took away from the civil rights struggle was an overwhelming sense of failure. As he watched the legal victories pile up, and then saw them neutralized as whites abandoned the public schools and then the cities themselves, Bell came to feel that the legal side of the civil rights battle had been built on a series of illusions, above all the illusion of the efficacy of law--a radical, and grim, conclusion for a crusading lawyer. "The time has come for civil rights lawyers to end their single-minded commitment to racial balance," he wrote in "Serving Two Masters," a 1976 article in the Yale Law Review. Black parents, he argued, wanted good schools, integrated or not. Lawyers who cannot accept the validity of all-black schools "should reconsider seriously the propriety of representing blacks."

It's clear now that Bell was right about the feelings of many black parents. In Oklahoma City, Dallas and elsewhere, blacks have joined with whites to accept partial resegregation in exchange for a fairer distribution of educational resources.

 

But Bell was also drawing racial battle lines. He had virtually accused civil rights lawyers, most, of them white, of defrauding their black clients. After the article appeared, he says, "I was kind of drummed out of the civil rights movement," He says he was never again invited to attend the annual Airlie House retreat sponsored by the Legal Defense and Education Fund. (Julius Chambers, the former head of the fund, says he recalls no such ostracism.)

Bell drinks from the cup of failure with a peculiar gusto. Sitting in a wing chair in his very large NYU office, he compares himself to Calhoun, the scheming lawyer of the "Amos 'N' Andy" stories: "You know how Amos and Andy went along with Calhoun even though he fooled them before, because here he is with this new get rich quick scheme? I think the clients went along with us despite their better judgment, because we were the lawyers," Bell can't quite suppress a mischievous grin at the audacity of the comparison. His easy laughter seems hard to square with the bitterness of his beliefs. He is the kind of man who chuckles at your jokes and reaches out to touch your arm. His voice is soft and almost wistful.

Bell is less interested in attacking racism, whose prevalence he takes for granted, than liberal reformism, which he considers a False god. His disillusionment and complete lack of sentiment give Faces at the Bottom of the Well a kind of scourging clarity. In "The Racial Preference Licensing Act," Bell recounts the story of a hypothetical president who, recognizing the futility of trying to legislate racism out of existence, proposes a law that would tax, rather than prohibit, discrimination. Employers or store owners could exclude blacks in exchange for a stiff fee to be paid into a fund dedicated to developing black economic interests--just as chemical factories can now buy "pollution rights."

 

Of course, the Fourteenth Amendment prohibits racial discrimination, and ever since Brown the Supreme Court has repudiated the doctrine of "separate but equal." Bell remarks that "civil-rights professionals will view legalizing racist practices as nothing less than a particularly vicious means of setting the struggle for racial justice back a century." But Bell's premise is that civil rights professionals are too invested in the mechanisms of law to see that civil rights statutes don't work, for more or less the same reason that Prohibition didn't work: the desire to evade the law is too strong and too widespread. Civil rights law is another failed effort to legislate morality. "Racial realism" is a new model, without the false hopes.

Leaving aside the question of whether we should think of the Civil Rights Act, the Equal opportunity Act and the Voting Rights Act as failures because racism and black poverty persist, Bell is surely right in saying that the central issue today is resources, not rights. But how do you bring jobs, housing, good schools to the ghetto? These are issues on which sincere people differ. For Bell the answer is reparations--or, coyly, a tax on discrimination. (Of course, if whites won't admit their guilt, they will hardly agree to the payoff.)

Racial realism isn't so much a proposal for a new social order as it is an ingenious, and deeply troubling, indictment of the current one. Bell seems to have lost interest in the business of imagining better futures, "If I have any role at all," he says, "it's to strip away this kind of comforting cloak of a better Supreme Court, more enforcement of the civil rights laws, and so on ... . If I had a new vision, shoot, I'd give it. But I don't think I do."

In the mid-'60s Bell began looking for teaching jobs. He sought a position at Harvard Law School in 1964 and again in 1966, he says, and was turned down. He had graduated from a "regional" law school, hadn't served on the law review and hadn't clerked for a Supreme Court justice. In its 130-year history Harvard had never taken a candidate with such meager credentials. At that time especially, the Harvard Law School faculty was the sanctum sanatorium of the establishment. Then Martin Luther King was assassinated, and black Harvard Law School students began agitating for a minority faculty member. In 1969 Bell was suddenly hired--an early beneficiary of a new racial dynamic. Bell, of course, has no illusions on this score. "It became untenable for them to be an all-white institution," he says. "The status quo was better stabilized by moving in this direction a little bit."

Bell was, without question, a token. But he set out to prove his merit with a vengeance. He established a new course in civil rights law, as he had been hired to do. In 1972 he published a highly respected casebook, Race, Racism and American Law, thereafter he produced a stream of law review articles. As the first tenured black professor in Harvard's history, he also became a role model, guide to an entire generation of minority law students who remain personally loyal to him today no matter what their politics. "He was a wonderful mentor," says one. "You could always count on him to stand up for principle."

Bell walked a fine line at Harvard. He goaded the law school to give tenure to more black scholars, but he also wanted to be part of an institution that symbolized professional achievement. He wanted to be an insider, though not at the cost of letting Harvard off the hook. And that may have been too much to ask. Bell was never invited to join the prestigious appointments committee, despite his overriding concern with hiring issues. Randall Kennedy, a black law professor less disposed to rock Harvard's boat, was given a seat on the appointments committee soon after he was tenured in 1987.

In 1980 Bell accepted an offer to become dean of the University of Oregon Law School--the first, and still the only, black to serve as dean of a non-black law school. Oregon was a disaster. The state went into a near-depression between the time Bell was hired and the time he arrived. He was bored by the details of administration, and was off on the lecture circuit while the university whittled away at (he law school's budget. In the fall of 1984 a delegation of faculty members asked him to resign, but Bell demurred. Several months later he played the rare card as a fare-saving pretext to step down. At a meeting at which three of the twenty or so members of the law school faculty voted against granting tenure to an Asian woman, Bell stood up and announced. "I cannot preside over a law school that makes such decisions." The faculty had earlier tenured a black woman, a Bell prot?g? with "marginal credentials," according to a former Oregon professor; now Bell was accusing the school of racism.

Bell's career seemed more and more driven by his politics. He left Oregon to become a visiting professor at Stanford. When students in his constitutional law class complained that his lectures were too disorganized and too politicized, Stanford took the extraordinary step of convening a parallel series of lectures, tactfully including Bell himself among the projected speakers. The incident served to show the subtle operations of racism inside elite, liberal institutions. "I don't think it would have happened if he had been a white scholar who was criticized for being right-wing and rigid," says a .member of the Stanford faculty. The students might have thought that they just weren't smart enough to get it. But with a black scholar who's very politicized, there's a train of thought that says. 'Oh, he must be an affirmative action hire. Maybe he is incompetent.'"

Bell returned to Harvard, though scarcely with the same sense of triumph with which he had left. His tactics became increasingly confrontational. Soon after his return he staged a five-day sit-in in his office to protect the law school's failure to gram tenure to two members of the radical Critical Legal Studies movement, both of them white. The tactic led Robert Clark, a conservative member of the increasingly polarized faculty, to remark, "This is a university, not a lunch counter in the Deep South." Clark later apologized, but the point was clear: Harvard would not be mau-maued.

Bell, like other so-called "critical racial theorists" such as Richard Delgado and Mari Matsuda, believes that places like Harvard serve as the intellectual pillars of the white, male order. In an essay included in his 1987 book, And We Are Not Saved, Bell argued that Harvard would never take more than a certain number of even supremely qualified minorities because, as a fictional dean explains, "we want to retain our image as a white school." And in Faces at the Bottom of the Well he argues that a combination of "white superiority, faculty conservatism, scholarly conformity and tokenism" has ensured racial and ideological uniformity at Harvard. He argues not for a minority quota, but for a diversity of voices and backgrounds, and for a new definition of the proper a qualifications of a law school professor.

 

This is a question that goes to the heart of affirmative action. What constitutes "merit"? Patricia Williams, a Bell prot?g? who now teaches at Columbia Law School, has written that "standards are concrete monuments to socially accepted subjective preferences." Standards, in other words, are designed to legitimate an existing order. Candidates for positions at the top law schools are generally expected to have received their degree from such a school and to have ground their way to law review and a Supreme Court clerkship. Wry few minority students have made it into that pool.

Many non-"crits" agree that the pool needs to be widened but wonder what alternative standard will preserve the idea of excellence that is at the heart of meritocratic judgment. Is "diversity," for example, a good in itself, and if so, what is being diversified? Bell once remarked--of Randall Kennedy--that "the cause of diversity is not served by someone who looks black and thinks white." Would it be served by someone who looks white and "thinks" black, whatever that means? Or does he or she have to be black as well? Some of Bell's colleagues have argued that minorities should have a preference in teaching civil rights courses, since they are likelier to have a superior understanding of suffering. Does that mean that white men should have a preference in the teaching of property?

Bell set about to demonstrate the problems with this theory. In April 1990 he announced he would leave Harvard if a black woman was not hired. He said he had done everything possible to get Harvard to do the right thing, and was now forced to take the ultimate step. He insisted Harvard was the same smug bastion of privilege he had joined in 1969, In fact, though Harvard had not yet hired a black woman, it was among the least hidebound of the great law schools. The tenured faculty now included white radicals, three black men and two women.

Since Harvard had already made its view of sit-ins and non-negotiable demands perfectly clear--the crits had not been tenured--Bell's threat was less a bargaining tactic than a form of moral one-upmanship. Even many of Bell's friends viewed it as a serious miscalculation. As a minority law professor and former student of his puts it, "Bell is amazingly good at making powerful statements that basically burn all his bridges with people around him. If you're actually trying to secure changes in these elite institutions, do these tactics make sense? I think the answer is no."

Bell wanted Harvard to hire Regina Austin, a visiting professor from the University of Pennsylvania. But since he couldn't claim that Austin was an indisputably deserving candidate, he seemed to be saying that she should be granted tenure simply because she was a black woman. In fact Austin wasn't even considered a close call: the appointments committee refused to vote on her candidacy. Bell wound up taking more heat from feminists, who viewed his chivalry as chauvinism, than from conservatives. And Bell concedes that Austin has never forgiven him for the public humiliation she endured. When I called, more than two years after the event, she said, in a voice coiled in anger, "I have nothing to say about that."

Bell himself has set high standards for courage and done very well by sacrifice, but you have to wonder if the game was worth the candle. "It was a very courageous and dramatic thing to do," says Henry Louis "Skip" Gates, head of the black studies department at Harvard, "because I think he really loved Harvard." Harvard has a rule that after two years' absence a professor automatically loses his tenure; last spring the law school revoked Bell's tenure. Bell may have betrayed his real feelings when he petitioned the board of the Harvard Corporation for a special hearing on his argument that his status should not have been affected by his departure. The request was unprecedented. Last summer the corporation heard Bell out and reaffirmed its decision.

 

The stories in Faces at the Bottom of the Well all revolve around Bell's bedrock belief that the fundamental reality of America is race, and that whites will never willingly diminish their privileged position. In "The Afrolantica Awakening" Bell luxuriates in the fantasy of black immigration to an Edenic homeland--a permanent solution to the problem of racial injustice. In "Space Traders" Bell considers emigration in its negative form, as exile. In this tale a group of spacemen arrives on Earth offering the devil's bargain: in exchange for vast stores of gold and magic solutions to the problems of energy and pollution, they will be permitted to take away, for an unspecified purpose, all of America's black people. Black Armageddon, in other words, is posed against white deliverance. Unsurprisingly, after token and largely self-interested opposition, Americans agree to sell black people back into slavery.

There is one passage in Faces that comes across as menacing and ugly. In "The Rules of Racial Standing," which is not a story but an angry lecture. Bell defends Louis Farrakhan. "Smart and superarticulate," writes Bell, "Minister Farrakhan is perhaps the best living example of a black man ready, willing and able to 'tell it like it is' regarding who is responsible for racism in this country." Arid yet because he offends white people, "every black person important enough to be interviewed is asked to condemn Minister Farrakhan--or any other truly outspoken black leader." Black people who comply are rewarded with "superstanding status."

Bell's defense of Farrakhan has drawn a withering response from other black intellectuals. In the current issue of Reconstruction, Kennedy accuses Bell of "an egregious toleration of bigotry." Bell, he writes, refuses to see "that the minister is an unreconstructed bigot and, worse, that a substantial and widespread sector of black Americans are willing either to applaud or to ignore his bigotry." Gates says, "How can you call yourself an intellectual and not find anti-Semitism nauseating?"

On the question of "superstanding status" Bell is probably right. The willingness to criticize affirmative action and welfare policies from "the inside" may explain an inflated reputation or two among black intellectuals. But Bell's racial politics are too schematic for him to see that the opposite is true as well. Why was Andrew Hacker's unexceptional Two Nations so warmly received, except that it declared that racism was the sole obstacle to black economic progress? Why, for that matter, has Faces been so equably reviewed in the liberal media? The dynamic of racial guilt functions alongside the dynamic of racial vindication.

In the course of our three-hour conversation Bell's genial expression slipped only once--when I suggested that he was "endorsing" Farrakhan. "I'm not endorsing him," Bell flashed, pounding the air with his fist. "No, no. I resent being asked because I'm black to jump up and denounce Farrakhan when he says things that are despicable when nobody comes and asks me when [Pat] Robertson made his despicable comments [at the Republican Convention] to jump up and do that." I asked Bell about Gates's argument, advanced in a New York Times op-ed piece last summer, that black intellectuals have an obligation to denounce black bigots. Bell wasn't interested in the question. "If that's what Skip wanted to do," he shrugged, "that's fine. My criticism would only enhance his standing. The only thing it does is serve as a comfort to whites who are upset."

That's Derek Bell's bottom line: if it comforts whites, it's bad; if it comforts blacks--i.e., Farrakhan--it's good. Bell, along with Farrakhan and so many others, offers victimization as a consolation. The law won't help; politics won't help; even the truth, as Bell argues in a parable called "Racism's Secret Bonding," won't help. Bell says he hopes for "a resurrection based on the realization of righteous futility." But despair leads to alienation and sullen withdrawal, not to renewal.

Faces at the Bottom of the Well is a blunderbuss designed for use in the endless, debilitating war of conscience over issues of race. All victories in this war are Pyrrhic. If you convince whites that their racism is ineradicable, what are they supposed to do? And what are blacks to do with their hard-won victim status? Bell offers us a kind of M?bius strip, with racism and victimization turning on themselves again and again. Can't we find a way of breaking out of this sterile pattern? We can say that racism still impinges deeply on the lives of black people, and yet also say that the world has changed in such a way that black people have opportunities they were once denied. The pressing question is not how we can end racism, but how we can expand opportunity. Bell concedes that the problems of inner-city black youth may have less to do with racism than with the devastating pathology of ghetto life. That's not a matter of fault any longer, but of responsibility.

The struggle to create a better life for black people has not been a failure. The civil rights statutes that Bell so casually dismisses have changed the face of American life, as his own career vividly attests. Bell's opportunities have been fully equal to his gifts. The tragedy is that Bell has had to turn on his own career in order to vindicate his critique.

James Traub is writing a book about the City College of New York.

By James Traub

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