Andrew Breitbart’s great talent was a stubborn, Barnumesque willingness to trumpet anything he had at his disposal as the Greatest Scandal on Earth. Sometimes it was genuinely compelling (Wienergate); sometimes it was a cruel illusion (Shirley Sherrod); sometimes it was smoke and mirrors (a shocking Michael Miner column). So it is with his posthumous masterpiece: archival video of young Harvard Law student Barack Obama speaking about—and hugging!—faculty member Derrick Bell.
A short history to bring you up to speed. At his final CPAC appearance, Breitbart promised videos of Obama’s college years that would “show you why racial division and class warfare are central to what hope and change was sold in 2008.” One of these, apparently, was a 1991 video of Obama addressing a Harvard Law protest, speaking highly of Bell, the school’s first tenured black professor. Buzzfeed broke Breitbart’s “exclusive”; Breitbart.com’s Joel Pollak said the video had been “selectively edited”; and then PBS’s notorious yellow-journalism outlet Frontline posted the full video—which had previously aired as part of the program’s 2008 election coverage.
So it wasn’t exactly an exclusive. It wasn’t exactly a scoop, either; the protest, and Obama’s role in it, was mentioned in David Remnick’s Obama biography, for which Bell was a source.
But it would be naïve to assume that Breitbart, his writers, and fans are delusional to call it shocking or exclusive or a scoop, any less than it is to assume Rush Limbaugh doesn’t know how contraception works. It’s like professional wrestling: of course it’s ludicrous. Of course it’s a circus of hostility. The point isn’t a reasoned narrative; the point is to watch someone get hit with a chair. It doesn’t work without kayfabe.
And it does work. The video spilled out into yet another circus on the cable scrematoriums. The late Harvard and NYU prof, like Alinsky and Sherrod before him, was immediately turned into a caricature as menacing and real as the Undertaker.
Which is a shame: Bell was a storied veteran of the civil-rights movement and a fascinating legal scholar. And he was radical. I happen to have Mr. Bell right here… come over here for a second, tell him:
[Critical race theory] is often disruptive because its commitment to anti-racism goes well beyond civil rights, integration, affirmative action, and other liberal measures. This is not to say that critical race theory adherents automatically or uniformly “trash” liberal ideology and method (as many adherents of critical legal studies do). Rather, they are highly suspicious of the liberal agenda, distrust its method, and want to retain what they see as a valuable strain of egalitarianism which may exist despite, and not because of, liberalism.
There is, as this description suggests, a good deal of tension in critical race theory scholarship, a tension that Angela Harris characterizes as between its commitment to radical critique of the law (which is normatively deconstructionist) and its commitment to radical emancipation by the law (which is normatively reconstructionist).
That’s from “Who’s Afraid of Critical Race Theory?”, a paper published in the Illinois Law Review and adapted from a 1995 lecture Bell gave at the University of Illinois. Put in its historical context, Bell was addressing in part the success of Murray and Herrnstein’s infamous The Bell Curve… with considerable, typical heterodoxy: “while The Bell Curve, as published, is condemned as a perversion of truth and a provocation for racial stereotyping, we should view it less harshly for what it is, and more sympathetically for what it might have been.”
“Highly suspicious of the liberal agenda"? Quite. Before Bell was adopted this week as a specter of black radicalism, his most charged battles were fought within the academy, against establishment liberalism and its proponents in the legal community, both black and white. Long before critical race theory was a movement, over a decade before he met Obama, this veteran of the civil rights movement’s legal arm caused a stir with his Harvard Law Review paper ”Brown v. Board of Education and the Interest-Convergence Dilemma,” in which he critically revisits the battles he fought as an attorney.
[The] 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…. 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.
Of these societal interests, Bell mentions three: “provide immediate credibility to America’s struggle with Communist countries to win the hearts and minds of emerging third world peoples,” an argument used by both the NAACP and the federal government; offer “much needed reassurance to American blacks that the precepts of equality and freedom so heralded during World War II might yet be given meaning at home”; and that state-sponsored segregation was a barrier to the South in making a “transition from a rural, plantation society to the sunbelt with all its potential and profit.”
It is not a full-throated condemnation of Brown, which Bell calls “the Supreme Court’s most important statement on the principle of racial equality.” Instead, it was an argument that where the “interest convergence” of Brown stopped, so did its real-world progress in addressing racial disparities. And Bell pushes this further: in concentrating on separate, no progress was made on equal.
A preferable method is to focus on obtaining real educational effectiveness which may entail the improvement of presently segregated schools as well as the creation or preservation of model black schools.
Civil rights lawyers do not oppose such relief, but they clearly consider it secondary to the racial balance remedies authorized in the Swann and Keyes cases. Those who espouse alternative remedies are deemed to act out of suspect motives. Brown is the law, and racial balance plans are the only means of complying with the decision. The position reflects courage, but it ignores the frequent and often complete failure of programs which concentrate solely on achieving a racial balance.
Desegregation remedies that do not integrate may seem a step backward toward the Plessy “separate but equal” era. Some black educators, however, see major educational benefits in schools where black children, parents, and teachers can utilize the real cultural strengths of the black community to overcome the many barriers to educational achievement. As Professor Laurence Tribe argued, “[J]udicial rejection of the ’separate but equal’ talisman seems to have been accompanied by a potentially troublesome lack of sympathy for racial separateness as a possible expression of group solidarity.”
No matter your view of this, it’s clear that Bell was playing with fire:
Policies necessary to obtain effective schools threaten the self-interest of teacher unions and others with vested interests in the status quo. But successful magnet schools may provide a lesson that effective schools for blacks must be a primary goal rather than a secondary result of education. Many white parents recognize a value in integrated schooling for their children but they quite properly view integration as merely one component of an effective education. To the extent that civil rights advocates also accept this reasonable sense of priority, some greater racial interest conformity should be possible.
Bell’s interest-convergence critique of Brown—which includes his own considerable role as a lawyer in school desegregation—was preceded by a more arcane yet similarly radical critique, his 1976 Yale Law Journal paper “Serving Two Masters: Integration Ideals and Client Interests in School Desegregation Litigation,” a section of which addresses “civil rights litigation and the regulation of professional ethics.”
In it, Bell discusses NAACP v. Button, the NAACP’s challenge to Virginia legislation that forbid “the solicitation of legal business by ‘an agent for an individual or organization which retains a lawyer in connection with an action to which it is not a party and in which it has no pecuniary right or liability.’” The legal principle at stake was the prevention of ”barratry, maintenance, and champerty“—all essentially meant to prevent lawyers from filing malicious, unwanted, or vexatious litigation by ensuring they have a real stake in the matter. The NAACP correctly perceived that the legislation was targeted against school desegregation, and the Supreme Court shot it down on First Amendment grounds.
Justice Harlan dissented, finding that, as Bell writes, “NAACP policy required what he considered serious departures from ethical professional conduct,” beginning with the fact that “NAACP attorneys were required to follow policy directives promulgated by the National Board of Directors or lose their right to compensation,” which included “many subjects relating to the form and substance of the litigation.”
In other words, Harland feared that the NAACP, as an organization, held more power in the litigation than the plaintiffs themselves. This concerned Harlan not just on abstract ethical grounds, but also in real-world terms; he argued that (and these are Harlan’s words, as quoted by Bell) “after authorizing action in his behalf, a Negro parent, concerned that a continued frontal attack could result in schools closed for years, might prefer to wait with his fellows a longer time for good-faith efforts by the local school board than is permitted by the centrally determined policy of the NAACP.” The parent could withdraw, but the lawyer, as Bell suggests in his title, was “serving two masters": the plaintiff and the organization.
Bell concluded that, in some particulars, the majority was right, but he also concurred with Harlan on several counts: “although a plaintiff could withdraw from the suit at any time, he could not influence the primary goals of the litigation.” Keep in mind, this is a former NAACP counsel, who directed more than 300 school-desegregation cases, concurring in substantial part with the dissent in a case that made the NAACP’s work possible.
He did not recommend stepping back from Button, describing the possibility as “a disaster, not an improvement,” though in the same breath as saying that Justice Harlan “accurately prophesied the excesses of derailed benevolence,” and concluding that the divided allegiance “has developed in a far more idealistic and thus a far more dangerous form.” He pleads not for further legal remedy, but for civil-rights lawyers to exercise their judgement more on behalf of their clients, even when that diverges from post-Brown integration strategies:
[T]o the extent that civil rights laywers have not recognized the shift of black parental priorities, they have sacrificed opportunities to negotiate with school boards and petition courts with judicially enforceable educational improvements which all parents seek. The time has come for civil rights lawyers to end their single-minded commitment to racial balance, a goal which, standing alone, is increasingly inaccessible and all too often educationally impotent.
Radical? Yes. It would do Bell a disservice to claim otherwise.
Not all of his battles stayed within the confines of academic legal journals; his most public conflict with his peers came shortly after his appearance with Obama at Harvard Law. In 1991, Bell published “The Law of Racial Standing” in the Yale Journal of Law and Liberation, an essay on Louis Farrakhan:
Personally, I am glad to see Farrakhan’s return after about a two year absence from the national T.V. scene. Very smart and super-articulate, he 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.
Bell’s desire to praise and not to condemn Farrakhan stems from his concept of “racial standing":
The law grants litigants standing to come into court based on their having sufficient personal interest and involvement in the issue to justify judicial cognisance. Black people (while they may be able to get into court) are denied such standing legitimacy in the world generally when they discuss their negative experiences with racism or even when they attempt to give a positive evaluation of another black person or of his or her work.
The usual exception to this rule is the black person who publicly disparages or criticises other blacks who are speaking or acting in ways that upset whites. Instantly, such statements are granted “enhanced standing” even when the speaker has no special expertise or experience in the subject he or she is criticising.
[T]hose who decide that, despite all, they must speak out against blacks who are threatening to whites, must not be surprised when blacks subjected to public criticism, cry ‘Foul.’ And when the black critics are later criticized themselves, this is not intended to—and certainly does not—silence the black speakers, as is claimed by Professor Stephen Carter. After all, they now have enhanced or super standing. White people want to hear their views, almost ad nauseam. Rather, some of the rest of us are saying, ‘Now, see what you have done. Knowing the consequences, you should have communicated your criticism in some other way.’”
This argument is problematic enough as it is, and caused Bell a considerable backlash; Randall Kennedy, a frequent opponent of Bell, called it “an egregious toleration of bigotry.” To make matters worse, Bell not only refuses to condemn Farrakhan on tactical grounds—say what you will, it at least has a logic behind it—he tries to free Farrakhan from accusations of anti-semitism:
Thus, when Farrakhan attempts to explain that his statement [that Judaism is a “gutter” or “dirty” religion] was aimed at Israel as a state and not at Judaism as a religion, his explanation is rejected out of hand.
Rejected, yes; out of hand, no.
The year after Bell’s article was published, Henry Louis Gates Jr. wrote a New York Times op-ed warning black scholars from irreparably damaging a vital civil-rights-era alliance:
The strategy of these apostles of hate, I believe, is best understood as ethnic isolationism – they know that the more isolated black America becomes, the greater their power. And what’s the most efficient way to begin to sever black America from its allies? Bash the Jews, these demagogues apparently calculate, and you’re halfway there.
James Traub, who profiled Bell for The New Republic in 1993, asked him to respond to Gates’s call to “denounce black bigots.” Bell responded that “the only thing it does is serve as a comfort to whites who are upset.”
How did Bell, who played such a crucial role in the civil-rights movement, end up there? In an excellent essay on critical racial theory—a movement that was not named or led by Bell, but which grew out of his work—for Lingua Franca, “The Color of the Law,” Larissa
For the first generation of critical race theorists – the ones who have tenure now and came of political age during the Sixties – the story of their evolving thought is about the reevaluation of liberal principles that took place after the ebullience of the civil rights movement gave way to a more pessimistic assessment of the country’s willingness to reform. By the mid- to late-Seventies, it had become apparent to them that racism was too ingrained, widespread, and subtle a feature of American life to be neutralized by laws addressing only its more obvious manifestations. Thus, the traditional ideals of integration, color blindness, and equality came to seem inadequate and even counterproductive.
Bell’s interest in moving beyond those “traditional ideals,” in the realm of law, led him to ask some challenging questions, and to take unusual (if widely criticized) routes there—such as his adoption of fables and narratives as legal arguments, which Macfarquhar discusses at length, and which resulted in a HBO movie that should be notorious for another week or so. In the case of Farrakhan, it took him well beyond the point of logic, always a danger when moving beyond the strictures of the academy and into the world of media and politics. Beyond it to a point where outcomes outweighed equality—even when fairness would dictate backing down.
A year after his death, Bell is back in that troublesome place. What rubbed off when the radical legal scholar hugged Obama? Nothing, it would seem, that resembles Bell’s politics or political strategy. Charles Ogletree told David Remnick that, while Obama’s speech “stood out for its eloquence and emotional force,” Obama “wasn’t the most vocal and central advocate in that debate.” Bradford Berenson, a classmate of Obama’s who went on to serve as associate White House counsel in the early George W. Bush administration, dismissed the significance of the video to NPR, and in an interview for the Frontline documentary Dreams of Obama, described Obama’s approach to the highly-charged atmosphere at Harvard Law as conciliatory, moderate and ably political:
I think Barack took 10 times as much grief from those on the left on the Review as from those of us on the right. And the reason was, I think there was an expectation among those editors on the left that he would affirmatively use the modest powers of his position to advance the cause, whatever that was. They thought, you know, finally there’s an African American president of the Harvard Law Review; it’s our turn, and he should aggressively use this position, and his authority and his bully pulpit to advance the political or philosophical causes that we all believe in.
He had some discretion as president to exercise an element of choice for certain of the positions on the masthead; it wasn’t wide discretion, but he had some. And I think a lot of the minority editors on the Review expected him to use that discretion to the maximum extent possible to empower them. To put them in leadership positions, to burnish their resumes, and to give them a chance to help him and help guide the Review. He didn’t do that. He declined to exercise that discretion to disrupt the results of votes or of tests that were taken by various people to assess their fitness for leadership positions.
He was unwilling to undermine, based on the way I viewed it, meritocratic outcomes or democratic outcomes in order to advance a racial agenda. That earned him a lot of recrimination and criticism from some on the left, particularly some of the minority editors of the Review.
At the time, Bell had walked out on his position at Harvard, taking a leave of absence and threatening to quit if a black woman was not appointed to the faculty. He proposed that the school hire Regina Austin, then a visiting professor; in an example of how Bell could conflict with likely allies, Traub writes that he “wound up taking more heat from feminists, who viewed his chivalry as chauvinism, than from conservatives,” and that—at least in 1993—"Bell concedes that Austin has never forgiven him for the public humiliation she endured.” (Austin refused to speak about the matter to Traub.) When his leave of absence ran out and he refused to return to work, Harvard revoked his tenure.
Obama spoke warmly of Bell during his walkout. But he was leading the Harvard Law Review in a much different direction than that suggested by his professor’s protest.
This now-infamous video of Barack Obama and Derrick Bell, the future president and the civil-rights vet passing each other in time, is not a scoop. But it’s not nothing, either. In the context of history—Bell’s, Obama’s, and ours—it’s an evocative moment as part of a larger narrative. And it’s much greater, and more interesting, than the one Big Government is selling.
Related: Jonathan Chait on Bell, Obama, Romney, and Ron Paul.Edit Module