Nothing about this moment — COVID-19’s disproportionate impact on Black people, Trump’s explicit anti-Black racism, or the mass demonstrations following lethal police use of force against Black people — would have surprised Professor Derrick Bell. These fault lines are not new; rather, these events merely expose longstanding structural damage to the nation’s foundation. A central theme of Bell’s scholarship is the permanence and cyclical predictability of racism. He urged us to accept “the reality that we live in a society in which racism has been internalized and institutionalized,” a society that produced “a culture from whose inception racial discrimination has been a regulating force for maintaining stability and growth.” Bell would have also foreseen Trump’s presidency as the likely follow-up to eight years of the nation’s first Black President. Any amount of racial advancement, Bell argued, signified “temporary ‘peaks of progress,’ short-lived victories that slide into irrelevance as racial patterns adapt in ways that maintain white dominance.” In this reflection, I revisit Bell’s arguments, including his interest convergence theory, to provide clarity on the current moment and to reflect on the way his scholarship has impacted my work as a civil rights lawyer, scholar, and teacher.
I first encountered Professor Bell in 2005, as a student at New York University School of Law. By then, he had maintained a visiting professorship for nearly two decades in an arrangement made with his former student, NYU Law Dean and later University President, John Sexton. Bell’s legendary status as the father of Critical Race Theory and as a champion of faculty diversity was firmly ensconced. At the time, I was active in a student group demanding more faculty of color, and our group asked Bell for advice. Soft-spoken and impeccably dressed, he was surprisingly accessible. Bell was intimately aware of our concerns, having experienced them in nearly every professional space he had entered. His advice was gentle and encouraging, but decisive. With his support, we regularly staged silent protests before faculty meetings, lining the hallway armed with posters, as our professors walked past to vote on candidates. Bell likely sensed that staging the protests would be more beneficial for our development as social justice lawyers than for hiring more people of color for the faculty.
To the casual observer, Bell’s warmth, wit, and gentle demeanor belied his radical beliefs and scholarship. But what made his writings, actions, and teaching so effective was that Bell embodied all these qualities. As his student and teaching assistant in Constitutional Law, it was hard for me to reconcile what I perceived as pessimism and cynicism in his writings with the affable and charming professor presiding over the classroom. At first read, the ending of Space Traders made me shudder, but I could not deny the allegory’s accuracy in depicting the plight of Black people at the hands of white people in power; given the opportunity to access wealth, unlimited energy, and technological advances in exchange for Black people, white America made the trade. It is one of Bell’s many works to which I often turn, as I did last year when I transitioned to teaching law. And I frequently recommend it to my students.
Only after I started practicing did I cease seeing Bell as a pessimist and recognize him for what he was: a realist. Working on capital cases as an appellate defender in Tennessee, no federal judge wanted to acknowledge the gross racial disparities in death sentencing in a state where Black men convicted in a single county made up the largest subgroup on death row. The draconian rules of procedural default prevented these same clients from securing relief on otherwise meritorious claims of racial discrimination in jury selection. Later, as a lawyer at the NAACP Legal Defense and Educational Fund, Inc. (LDF), I inherited one of the Mississippi school desegregation cases that Bell filed with his colleagues Mel Leventhal and Marian Wright Edelman. Despite five decades of federal court monitoring, the public school district was still failing to adhere to the law established in Brown v. Board of Education. My colleagues and I reengaged members of the original plaintiff class, now grandparents of children enrolled in the same district. The district no longer operated a dual school system separated by race; instead, it operated a single, virtually all-Black, under-resourced school system that funneled children into the criminal legal system. In civil rights and the criminal legal system, I was fighting the same fight as my forebearers with similarly racist results.
So, as Bell posed, “Now what?”
For the answer, I turn to Bell’s theory of interest convergence: that the rights of Black people only advance when they converge with the interests of white people. Twenty-five years after the U.S. Supreme Court’s ruling in Brown v. Board of Education, Bell argued that the holding “cannot be understood without some consideration of the decision’s value to whites, not simply those concerned about the immorality of racial inequality, but also those whites in policymaking positions able to see the economic and political advances at home and abroad that would follow abandonment of segregation.” How else, Bell argued, could one account for the country’s “sudden shift . . . away from . . . separate but equal . . . towards a commitment to desegregation?” Then, the world was in the midst of the Cold War, and the nation’s hypocrisy in its treatment of Black people at home was not lost on our adversaries abroad.
It is through this lens that I view the actions that have transpired since George Floyd’s murder: the rapid passage of law enforcement reforms (that had previously stalled), swift actions and statements from corporations decrying anti-Black racism (from corporations that had previously denied it), and the sudden cross-racial embrace of “Black Lives Matter” (by white people who had previously resisted it). To be clear, my argument here largely applies to the sharp increase in (public) racial consciousness among white people. What has changed is not the legal, or even social status of Black people, but rather the social (media) acceptability of anti-Black racism. Said another way, it is now popular and financially advantageous to be anti-racist.
The popularity and profitability of anti-racism is nowhere more evident than on social media. With many Americans either out of work or working from home, we are all glued to pocket-sized screens. The hyper focus online created a higher stakes platform for the performance of protesting anti-Black racism. Social media enables users to measure the popularity and reach of each post. Yes, millions marched against anti-Black racism in cities and small towns across the nation, but these demonstrations were largely captured and shared via social media. Appearing at a Black Lives Matter demonstration showed solidarity, but appearing and then posting a photograph of it had measurable social currency. Consumer-driven corporations were all quick to showcase their anti-racist positions. Never mind that some of these corporations had engaged, or continue to engage, in anti-Black practices. Although retail spending decreased during the pandemic, companies could not possibly lose more money speaking out against racism, but they could by remaining silent, or worse, condoning racism.
I argue that a major motivating factor for many white peoples’ actions and corporations’ pronouncements against racism was not to advance Black equality. Rather, it was the realization that the nation cannot maintain its economic, political, and social superiority over the rest of the world while remaining silent about anti-Black racism in America. Racism is a bad look. Silence in the wake of racist events is even worse. And just as in the 1950s, the world is watching America. Only now, the world is consuming America’s hypocrisy in real time on social media. Instead of America decrying human rights abuses across the globe, the globe is protesting human rights abuses in America. We all witnessed the responses: Democratic members of Congress donned West African kente cloth to announce their police reform bill, later kneeling in long-belated solidarity with Colin Kaepernick. Broadcast from the Rose Garden, Trump gave lip service to the experiences of Black people at the hands of law enforcement. Quaker Oats changed the name and image of its Aunt Jemima brand. NASCAR prohibited confederate flags from its events and properties. All abrupt, performative displays of wokeness, despite prior unanswered complaints of anti-Black racism.
And lest we forget, just a few years ago many white people responded with distaste and hostility to the expression “Black lives matter” following the murders of Trayvon Martin and Michael Brown. With earnestness, well-meaning white people asked, “don’t all lives matter”? Yet, here we are, roughly six years later, witnessing millions of people posting black squares on their Instagram accounts with long captions or simple hashtags denouncing anti-Black racism. Again, these were largely white people. I observed many of my Black peers posting variations of: “I’m tired” or nothing at all. On my bike rides and runs through New York City, whenever I pass wealthy, white enclaves I frequently observe signs in windows or draped flags adorned with the words: “Black Lives Matter” and “White Silence is Violence.” Where were these signs when New York City police officers fatally shot Amadou Diallo, unarmed and standing in the doorway of his home, 41 times?
Will this moral posturing online translate into substantive changes in the law and in society for Black people? It was lost on no one that police used excessive force on Black people protesting excessive police force against Black people. Law enforcement officials murdered Rayshard Brooks on camera weeks after officers murdered George Floyd, his death also captured on camera. Officials have not yet arrested the officers who murdered Breonna Taylor. The wave of police reforms is not insignificant, but when we closely examine these measures, they fail to provide paths to redress for Black victims of excessive police force or even address the practices that result in a disproportionate use of force against Black people. For that, we would need to eradicate the presumption of criminality and dangerousness that society assigns Black people. But according to Bell, that is unlikely because “white people desperately need . . . black people — or most blacks — in a subordinate status in order to sustain . . . the . . . preferential treatment to which every white person is granted…”
Bell warned us that “yearning for racial equality is fantasy.” There is no vaccine for America’s illness. Like Bell, I do not believe we can eradicate racism from a nation built and dependent upon it. The subordination of Black people provides “whites with a comforting sense of their position in society. . . whether or not [white people] want it.” But this acknowledgment does not mean we should abandon the fight to challenge the racial hierarchy.
To counter the permanence of racism, Professor Bell advocated that our fight against it must be equally persistent. He implored us to “realize with our slave forbearers that the struggle for freedom is, at bottom, a manifestation of our humanity that survives and grows stronger through resistance to oppression even if that oppression is never overcome.” Although many of my death-sentenced clients — now represented by successor counsel — still await rulings from federal judges, there was nevertheless something meaningful about the process of post-conviction litigation. For many of my clients, the work my team and I performed on their behalves enabled them for the first time to feel listened to, heard, and seen. In investigating and presenting their habeas claims, we told their stories and elevated their humanity. The collective effort reminded our clients that their lives have value. Later, while working for LDF, I encountered an older woman in Meridian, Mississippi. She had grandchildren enrolled in the same school district as her children were during the desegregation litigation Bell initiated. She recalled that the white townspeople threatened to kill her and her children if she got involved in the lawsuit. This was no idle threat: James Chaney had been teaching her children to read when he was lynched during Freedom Summer. I asked why she nevertheless agreed to put her name on the lawsuit. She responded: “At least I’d die fighting with my babies.” Sometimes, the whole point is to resist. Professor Bell was a brilliant scholar, activist, and civil rights litigator, but he was also an exceptional teacher and mentor. He gifted me with the knowledge that there is power in amplifying the voices and experiences of those most impacted by racial inequality. And although I may not see the change for which I advocate, there is value in the struggle against oppression. I will continue to bear witness, amplify stories of injustice, and encourage my students to do the same.