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Brown v. Board's Unacknowledged Lessons

November 19-20, 2004
at Dillard University and Xavier University of Louisiana, New Orleans, Louisiana

Following are excerpts from the Keynote Address at the conference:

Speaker: Derrick Bell, Professor of Law, New York University School of Law

"We who believe in freedom cannot rest along the way / We who believe in freedom cannot rest another day."

We who strive for racial justice are facing hard times. The barriers of race are large and, as a result of the November 2nd election, are growing larger. Diversity is the subject of this conference, but for at least three reasons the concept of diversity, far from a viable means of ensuring affirmative action in the admission policies of colleges and graduate schools, has been a distraction in the ongoing efforts to achieve racial justice.

(1) It distracts courts and the country from addressing directly the continuing discrimination that affects so many minority applicants.

(2) It enables a distinction from other affirmative action policies that the court has rejected under the strict scrutiny standard.

(3) Diversity serves to give legitimacy to traditional admissions reliance on grades and test scores that privilege well-to-do, mainly white applicants.

Had I not been litigating, teaching, and writing about the difficulties of providing effective schooling for black and other children of color for most of my 45-year career, I might have joined civil rights advocates' expressions of satisfaction, enthusiasm, and relief at the Supreme Court's approval of the Michigan Law School's admission program. These are difficult times for those working for racial equality. And while there is value in declaring victory after years-long litigation, I fear that subsequent events have rendered this latest civil rights victory, like so many before it, hard to distinguish from defeat.

To the surprise of many justices, Sandra Day O'Connor provided the swing vote in the [Michigan] law school case, and she wrote the majority opinion. She generally voted with the court's four conservative justices to defeat race-sensitive policies intended to remedy continuing effects of discrimination. But in this case her vote gave new life to Justice Powell's opinion in the Bakke case, written 25 years ago.

owell suggested college admissions policies could, if carefully considered, use race to ensure diversity in the classroom. Of course, that has been the source of both determined litigation and unrelenting controversy. Actually, the Michigan decision should provide me with some measure of a prophet's cry. After all, for more than three decades I've been writing and teaching that no matter how much harm black people have suffered because of racial hostility and discrimination, we can't obtain any meaningful relief until those in policy-making positions perceive that the relief blacks seek furthers interests or resolves issues of more primary concern to them. Read together, the two Michigan decisions provide a definitive example of my interest in convergence theory.

Justice Ginsberg, one of the dissenters in the undergraduate case, the one that was defeated, said that past and continued racial bias justifies the school's outward use of race in the admissions process. She reminded the court that the effects of centuries of the law sanctioning inequality remain painfully evident in our communities and our schools. She said the system of racial chaos, ended only recently, created large racial disparities that endure in unemployment, poverty, and health care. She added that equally credentialed job applicants received different receptions depending on their race, and that irrational prejudices still endured in real estate markets and consumer transactions.

I don't think many people could deny the obvious in Justice Ginsberg's statements, but her position simply could not gain five votes on the current court. Recognizing this, Michigan lawyers and their allies shifted their focus from remediation for past discrimination to the value of diversity to the school and to society, and, almost brilliantly, they lined up 64 advocates briefs that represent more than 300 organizations including academics, labor unions, scores of Fortune 500 companies, and nearly 30 retired military civilian and defense officials.

These briefs all maintain that a racially diverse workforce is essential to the success of their operations. But it was diversity in the classroom, on the work floor, and in the military—not the need to address past and continued racial barriers—that gained Justice O'Connor's vote. Once again, blacks and Hispanics were the fortuitous beneficiaries of a ruling motivated by other interests.

One professor wrote that Justice O'Connor's decision reflects her commitment as a protector of the institutionalized rights of whites. He said that when she perceived in the Michigan Law School's program an affirmative action program that minimizes the importance of race while offering maximum protection to whites and those aspects of society that she identified with, then she supported it. There was a lengthy dissenting opinion in the case: our good friend Clarence Thomas wrote in passionate terms his opposition to affirmative action in all its forms. He dismissed diversity as "a faddish slogan." His firm opposition to using racial classification in any form seems based on both his conviction that all such remedies are unconstitutional and his personal belief that "blacks can achieve in every avenue of American life without the meddling of university administrators."

Thomas could very well be named to replace Chief Justice Renquist, should Renquist be required to step down. Now, the Democrats would probably not oppose Thomas. That would leave the door open to replace Thomas's position with an extreme conservative. That almost certain prediction puts in focus that this election has placed all our lives, and especially black lives, in extreme danger. And it's well to consider how we came to this lonely and extremely vulnerable place.

First, it would appear that the presidential campaign has made it all too evident how poor the educational system is for most of our citizens. Critical thinking is not respected, and those who engage in it to reach conclusions not in keeping with the government line about the Iraq war or terrorism have been treated with suspicion, even branded as unpatriotic traitors.

The New Yorker magazine's Hendrik Hertzberg spoke for most of us liberals when he wrote, "The election's outcome defies logic, and perhaps that is the point. The early analysis credited Bush's victory to religious conservatives, particularly those in the evangelical movement. In voting for Bush, as 80% of them did, many of these formerly non-voting evangelicals are remaining true to their unworldliness. In voting for a party that wants to tax work rather than wealth, that scorns thrift, that sees the natural world not as a common inheritance but as an object of exploitation, that equates economic inequality with economic vitality, they have voted against their own material and, some might imagine, spiritual well-being. The moral values that stirred them seem not to encompass botched wars or economic injustices or environmental depredations. Rather, moral values are about sexual behavior in its various manifestations, about family structures, and about a particularly demonstrative brand of religious piety."

Hertzberg writes, "What was important to these voters, it appears, was not Bush's public record but what they conceived to be his private soul. He is a good Christian, so his policy failures are forgivable. He is a saved sinner, so the dissipations of his earlier years are not indications of weak character but testaments to the transformative power of his faith. He relies on God for guidance so his intellectual laziness is not a danger." It's not a danger, and I would add it seems to be a comfort.

Even so, I also agree with Rabbi Michael Lerner that we cannot simply dismiss those who voted for Bush as stupid or evil, authoritarian, racist, sexist, homophobic, wishing to impose their religion on everyone, wishing to dominate the world. They may be wrong, but they are not crazy. Thus we must look further to ascertain why so many voted as they did.

First, there is the matter of information. It is a sad fact that most Americans do not read newspapers, and in many regions the papers give them precious little of real substance to read. Television news programs, where many seek the news, are more committed to crime, scandal, sports, and the weather, in that order, than to solid news coverage of matters that substantively affect our lives. Entertainment is the name of the news, and profit is the game of the news. At least one-third and up to one-half of those programs are devoted to expensively presented commercial messages offering cures for all manner of bodily ills and dysfunctions. When it comes to actual news, much of the media is blatantly partisan, so committed to what they call neutrality that criticism of those in power is rare.

How many truly progressive voices appear on public radio and television? As a result, Americans know far more about the latest sex-related criminal trial or their favorite sports team than about a balanced discussion of the issues of health, employment, policies, schools, or taxes that so determine our economic condition, our physical health, and the burdens and benefits of our citizenship.

Candidates even for the highest office dare not appear too intelligent, too well educated. As one commentator, Charlie Reese of the Orlando Sentinel, put it, It's unfortunate that in our poorly educated country Kerry's very intelligence and refusal to adopt simplistic slogans might doom his election effort. Mr. Reese's fears proved correct, but there remains the question of whether an ill-informed public was all that the Republicans had going for them. In a recent lecture, Columbia law professor Kendall Thomas suggested that in finding these voters irrational we fail to consider the role of fantasy in politics—how those harmed by political policies come to identify with and support those who are responsible for those policies, whatever their level of education or attainment.

There certainly are major reasons for fear and uncertainty in our country today. Again, the war in Iraq has alienated our friends abroad and enraged the enemies who can reap great destruction on us without owning nuclear submarines, supersonic planes, and smart bombs. The budget surplus built by the tax-and-spend Democrats has been transformed by conservative Republicans into the largest budget deficit in history, both to pay for the war and provide tremendous tax breaks to the already rich.

Social programs are being cut. Social security and Medicare are being targeted for revisions from which neither may survive. Fewer and fewer jobs in our country are secure, and more and more families are at risk of financial disaster. Here we come to see the Republican strategy—their repeated evocation of foreign terrors and domestic fears of economic uncertainty combine with promises to protect our security that their own actions have endangered. That, strangely enough, can lead many to come to rely on those responsible for those terrors and the resultant fears. Responses to these fears manifest themselves through identification with the policy perpetrators as a kind of collective imaginary.

This is not a new phenomenon. Remember the history of American slavery indicates that some slaves identified with their slave masters, warned their masters of slave revolts, and risked their lives to save their masters when the big house was on fire. The oppression of slaves in long imprisonment, or those taken hostage, often leads to compliance and identification with the oppressors rather than revolt against them. Recall the Holocaust. Some Jewish prisoners tried to dress, walk, and talk like their German guards even as many in their midst were being taken away to the gas chambers.

Now in these cases, the concern is for basic survival. But some writers see a similar manifestation in political identification with oppressive leadership for reasons that, to those in danger, seem rational and necessary. As an example, one professor has reported that Margaret Thatcher was elected PM of England three times, holding office for almost 12 years, partly as a result of waging this war with Argentina over the Falkland Islands and despite a poor economy—and she did this while winning the support of many of those harmed by her anti-union and generally anti-social welfare policies. This needs to be understood not just in terms of material needs but images and identification. The conservatives were unpopular in terms of their policies, but they had mobilized a new, ideological constituency. Politics is not only policies but also a matter of fantasies in which the way people imagine themselves is crucial. People identify not with their immediate material interests but with the place where they can see themselves potentially making good.

This provides some understanding of the votes of so many in the recent presidential campaign. The Republicans skillfully, if maliciously, evoked the fear of 9/11, the threat of further terrorism, the need to support our leader in wartime, and the need to stay the course. Slogans such as "Freedom is on the march," amplified by right-wing radio commentators, were intended and had the effect of highlighting a sense of danger that only the current leaders could protect us from. So when Bush and company continue to assert, despite all the hard evidence to the contrary, that we have discovered weapons of mass destruction in Iraq and that we were justified in launching a preemptive war over the objections of most of the world's nations, including our allies, the resulting confusion and controversy caused many to side with the leadership to ease their own personal anxiety and fear that they did not wish to openly acknowledge.

There are the so-called social issues of abortion and same-sex marriage and guns. These are certainly issues that further the fear of many that their view of the world, their sense of who they were in the world, was in jeopardy. I'm not saying that those who voted Republican were not serious in their opposition to abortion, same-sex marriage, and stem cell research while supporting the death penalty and relaxed gun control laws, because they were! I believe, though, admittedly based on my racial experience that has slowly turned to racial paranoia, that support for so-called moral issues served as a more acceptable way of both reflecting their fears and endangered security and status and quietly, underhandedly, manifesting their continuing opposition to affirmative action, school desegregation, and other race-related reforms sought by blacks.

These racial issues were seldom mentioned by either party. We can't forget that long before this election, many whites opposed all social reform as welfare programs for blacks. This opposition is not less strong because poor whites also have employment, education, and social service needs; in fact, whites tend to benefit more from civil rights policies than blacks who brought those policies into being. Affirmative action policies, for example, have been a far greater benefit to white women than to blacks and Hispanics.

The Republican Party has little interest in the challenging task of bringing together black and white voters by emphasizing the similarity of their interests and needs. To the contrary, in the last two decades Republicans have been the dominant political force in the South and increasingly across the country, and they have achieved this position not by championing social reform but by claiming that the Democratic Party was the party of special interests, meaning, of course, the party for blacks. This position, along with attacking big government, has enabled Republicans to dominate Southern politics at least since Ronald Reagan's election to the presidency in 1980. It wasn't a mere fortuity that Reagan launched his campaign with a speech in Philadelphia, Mississippi, near the site where the three civil rights workers were murdered in 1964.

Consider as well the Willie Horton scare ads in the elder Bush's campaign as well as the many efforts to keep blacks from voting or from having those votes counted in both 2000 and 2004. This is a nonpartisan critique. The Democrats had played this protective role for whites since the early twentieth century. They maintained control by making big promises regarding social reform while emphasizing their determination to protect whites from liberal (read blacks) threats to vote to desegregate the schools and public facilities. Even President Roosevelt's New Deal policies were implemented with substantial amounts of racial discrimination and segregation. And FDR refused to give his support to anti-lynching legislation that never passed because he feared it would cost him Southern votes.

When after World War II President Truman began desegregating the armed forces, as more and more blacks moved to the north and became a significant factor in politics, it led to the formation of the Dixiecrat party led by Strom Thurmond. And because of the great migration of blacks to the north, post-war pressures including civil rights activism led President Johnson to sign the Civil Rights Act of 1964 and the Voting Rights Act of 1965. In doing so, he predicted accurately that his support for civil rights would cost the Democratic Party the Southern vote for years to come.

Today much of the Democratic Party leadership, while absolutely dependant on black votes, particularly in national elections, goes to great lengths to avoid acknowledging this reliance. Indeed, Democrats also seek elusive white votes by claiming they are not catering to special interests. Reading the platform positions and speeches of both parties in the recent campaign, one might conclude that race is not a major issue in the campaign.

I would differ, and I want to illustrate that difference with a question: Can you think of any black person with Mr. Bush's record who could be reelected instead of being in danger of impeachment? I can't. At one point Secretary of State Colin Powell was one of the most respected men in America. In spite of his race he was considered by both parties as a potential candidate for president. He rejected those overtures. But had he accepted the vice presidential post, and after the president was incapacitated was sworn in and followed the domestic and foreign policies quite like those of President Bush, could he seriously be running for reelection? Is there a message here regarding the continuing racial alienation in this country that is too scary to seriously contemplate?

I'm not saying that the country is racist, though racism is certainly alive and flourishing. I am suggesting that racial reform to many is viewed as a threat to safety, stability, and security, and even a black president opposed to social reform, furthering economically disadvantageous policies, would not be able to obtain the fear and status-based support that George Bush was able to garner.

Beyond the racial appeal to whites the Republican Party has generated over the last quarter century, there is an identification with Mr. Bush based on his folksy whiteness. Because a great many whites—and some blacks and Hispanics, God save us—ignore his shortcomings and even feel comforted by them, and are ready to believe whatever he says as opposed to what his administration has done and continues to do.

This fantasy, this kind of collective imaginary becomes realism out of the fear of change, out of the fear of loss of security and status. Racism plays a continuing if not always identifiable role in maintaining a political and economic system that is accepted despite—and perhaps because of—the great and growing disparities in income, wealth, and opportunity in this country.

You may be saying at this point, what about the Brown v. Board decision of 1954. Didn't that landmark decision provide us with adequate bases to challenge violations of our civil rights in the courts? We have, during the many celebrations of the Brown decision over the last year or so, applauded the courage and persistence of the lawyers who for 20 years supported school desegregation litigation that finally led to the 1954 decision.

I also question whether our civil rights leaders back in the 1930s acted at least in part out of their quite justified fears and powerlessness when they rejected those who urged continued economic development. Imagine instead a fantasy in which they could eliminate racial discrimination through the courts that had mainly rejected their petitions for decades. There is little basis in reality for believing that the society and its courts that relegated black children to segregated and horribly unequal schooling would change if we could convince the Supreme Court that such schools were unconstitutional.

In the early and mid-1930s blacks and whites in the NAACP debated whether blacks should develop economic and political structures as defenses against racial hostility, or whether they should seek decisions in court that invalidate the laws and policies based on that hostility. W.E.B. DuBois and a few others urged that blacks needed neither integrated schools nor separate schools. What he needed was education. He urged that we recognize this society's racial hostility, build economic and political structures as defenses against it. He was not only ignored but forced out of his position as editor of The Crisis, a publication he created, when he persisted in calling for strengthening black institutions, including schools, rather than launching an all-out desegregation drive.

Again, I must ask with some pain how did our fantasy that the law would provide equal educational opportunity for our children, how did that differ from the view carried by a majority of the voters last week that George W. Bush is a great leader whose policies of the last four years justified granting him another term in office?

You will remind me that the lawyers did gain the Brown decision holding segregated schools unconstitutional, and that is true. But we now know that the decision was much influenced by the need to respond to Communist nations who were gaining adherence among third world peoples by publishing stories about racial discrimination and abuse and lynching in this country. While nowhere mentioned in the Brown decision, Justice Frankfurter and other members of the court surely were able to make a connection between the foreign difficulty abroad described by Secretary of State Dean Acheson at great length, the fear of subversives at home exploited during the McCarthy era, and the adverse effects on blacks and the barriers to their freedom and equality that had been so widely trumpeted as available to all during the war.

Looking back to that time, it was likely that not since the Civil War had the need to remedy racial justice been so firmly aligned with the country's vital interests at home and abroad. And this hysteric attraction to granting recognition and promising reform of racial justice when such action converges with the nation's interests provided a very real, if unacknowledged, motivation for the court's ringing statement in Brown. The statement provided a symbolic victory for petitioners and the class of blacks they represented, while in fact giving both a new and improved face of the nation's foreign policy in responding to charges of blatant racial bias at home.

Brown, then, is the definitive example of a fact indicated earlier, that the interests of blacks achieving racial equality will be accommodated only when those interests converge with the interests of whites in policy making positions. The convergence is far more important to gaining relief than the degree of harm suffered by blacks or the character offered to prove that harm.

It may be heresy, but consider whether our long-heralded civil rights campaign may have had its roots in fantasy based on fear and powerlessness, again a collective imaginary that, pursued long enough, fortuitously merged with the political needs of white leadership and resulted in what appeared to be great legal victory. But as we know from throughout our history, unfortunately when this convergence results in impressive legal decision the remedy is abrogated at the point policy makers fear that the remedial promise is threatening the superior status of whites, particularly in the upper and middle classes.

We in the civil rights movement were several years into the difficult implementation phase of Brown before a few of us recognized, as Judge Robert L. Carter, one of the NAACP lawyers who had directed Brown litigation, wrote several years later, "The existing (or pre-existing) pattern of white superiority and black subordination remains unchanged. Few in the country, black or white, understood it before, but racial segregation was merely the symptom, not the disease. The real sickness is that our society in all its manifestations is geared to the maintenance of white superiority."

Brown's advocates expected that the decision would cut through the dark years of racial segregation with something like laser-like intensity. Thurgood Marshall, the leader of the Negro team, predicted that the schools would be segregated within five years, and why not? After all, black people that had been burdened with racial segregation for six decades were willing to let bygones be bygones now that the court acknowledged in law what they had experienced. In fact, would not whites, the beneficiaries of segregation, comply with what was now the new law of the land?

Those who thought that were wrong. Resistance to Brown was massive, open, and determined. Beyond the high-sounding proclamations like the Southern manifestos, the declared purpose of which was to use all lawful means to reverse Brown, opposition was much reliant on intimidation and threats aimed at both blacks who dared seek the rights that the Supreme Court said they were entitled to and whites who, by either word or deed, indicated their support of what was now the law. The campaign to desegregate the public schools through court orders finally gained judicial support in the late 1960 and early 1970s, but our hard-won orders led school boards to close black schools, dismiss black teachers and principals, and send black children to white schools—not the best ones, of course—where they were more often that not met with hostility rather than acceptance. Droves of white parents responded to school desegregation by enrolling their children in private schools and moving to suburbs where they hoped blacks would not be able to follow.

Today the Brown decision, as far as the law is concerned, is of little beyond symbolic value. And because of a range of subsequent decisions it is hard to imagine a case in which citing the Brown decision would evoke more than a sad smile from even a liberal court. With regard to contemporary race jurisprudence, Brown is irrelevant.

I'm not here to argue that racial reform would be further along today if there had been no Brown decision, though I could. I agree with Judge Carter that Brown's indirect consequences have been awesome, in that it completely altered the style and the spirit of race relations. But I also agree with Georgetown law professor Michael Sideman, who reminds us that the Supreme Court in taking on school segregation cases faces massive contradictions between the nation's commitment to equality and the great values many whites place on racial preferences approved by the court in Plessy v. Ferguson.

Given blacks' lack of political and economic power, it appeared that our demand for equality could never be satisfied. The court resolved the problem by definitional fiat. Separate facilities that had been deemed inherently equal in Plessy were, in Brown, declared to be inherently unequal. Notice that the decision didn't find any liability. There were no wrongdoers. There was no financial relief to individuals or groups for their loss. Definitional fiat was the substance of Brown, and once white society through its court was willing to declare separate but equal and lawful, the demand for equality, as far as much of white society was concerned, was satisfied.

Black people no longer had just cause for complaint. The existence of Brown served to legitimize current arrangements, including those of racial discrimination and segregation. Many blacks remained poor and unempowered. But their status was no longer deemed the result of the denial of equality; instead, it marked a personal failure to take advantage of one's definitionally equal status.

Brown thus served to reinforce the fiction that by the decision's rejection of racial barriers the path to progress would be clear. Everyone can and should make it through individual ability and effort, so that the fears and powerlessness-rooted fantasy that may have prompted the litigation made against racial segregation has eventually led to reforms without much lessening of economic and political powerlessness that today is taking a toll less dramatic than overt segregation and the violence of lynching, but that is not less destructive.

Destruction today takes the form of poor schools, higher levels of joblessness and poverty, resort to crime and prisons that hold more blacks than are enrolled in colleges, and large disparities in income, housing, health, and all the other indicia of subordinate status. Paradoxically, these very manifestations of our dire plight both feed the sense of superiority in the whites and the fear in many more that blacks are a danger from which they need the protection that their leaders in one way or another promised to provide. The Brown decision, in fact, while providing blacks with symbolic relief that did not alter our subordinate economic status, did provide politicians with a racial issue in which they could again raise the fears of relatively powerless whites, initially in the South but far more generally as efforts to implement the decision moved across the country.

It seems, then, that both those who oppose racial reform and those of us who advocate it may be acting out of political fantasies based on our sense of powerlessness and fear for our security and well-being. Some may say that there is a difference, that our opponents' fantasies are based on fear while we who urge racial reform are acting out of a fantasy based on an abiding faith in this country's ideals, even though those ideals are more often recited than adhered to.

Maybe. Yet it is essential that we make the ongoing effort to understand when we are speaking and acting and voting out of fear rather than faith. This anniversary of Brown vs. Board provides an opportunity to celebrate the courage of black parents and their children who undertook, at our behest, the risk of economic retaliation and physical harm to become plaintiffs in those schools. They did act out of a faith in America's ideals that those who opposed them could neither match nor even understand. And certainly we must continue the struggle against racism, but we should do so enlightened by and not ignoring what we have learned in the half century since Brown was decided.

What appears to be victory is not always what it seems. And because of the role of fantasy in serving the security and status needs of both proponents and opponents of racial justice, even what is real can mislead and misrepresent usually in ways that serve the status quo and those who benefit from it. The desire to work for good and oppose evil remains praiseworthy. It is simply that determining what is good requires a more constant effort of evaluation, a greater willingness to admit error, than is usually the case in our complex and dangerous world.

The teacher's role in all of this is to try to understand what is happening, and try to teach that understanding both in and out of the classroom, quite often to those who do not want to hear unsettling truths. To expand on what Dr. DuBois urged in 1935, rather than either integrated or separate schools what black children need and what white children need— indeed all children—is education in a larger sense. DuBois's call must be our calling.