Rethinking the interest-convergence thesis

Northwestern University Law Review

Volumn 105, Issue 1, 2011, Pages 149-198

  Driver, Justin ^a  

^a UNIVERSITY OF TEXAS SCHOOL OF LAW   (United States)

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EID: 79959276587     PISSN: 00293571     EISSN: None     Source Type: Journal    
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References (362)

1. 539 U.S. 306 (2003).
2. Lynette Clemetson, NAACP Legal Defense Fund Chief Retires, N.Y. TIMES, Jan. 16, 2004, at A10. In announcing her departure from an organization for which she had worked for thirty-two years, Jones cited the positive result in Grutter as enabling her to retire with a clear conscience: After that I knew I thecould go.
3. Id. (internal quotation mark omitted). Professor Lani Guinier invoked precisely the same basketball metaphor as Jones did to describe the complete nature of the Grutter victory.
4. See Lani Guinier, The Constitution Is Both Colorblind and Color-Conscious, CHRON. HIGHER EDUC., July 4, 2003, at B11 (The Supreme Court's decision was a slam-dunk victory for affirmative action.).
5. 347 U.S. 483, 484 (1954).
6. See Jack Greenberg, Diversity, the University, and the World Outside, 103 COLUM. L. REV. 1610 (2003). For an argument viewing Grutter as a reaffirmation of Brown,
7. see Harry T. Edwards, The Journey from Brown v. Board of Education to Grutter v. Bollinger: From Racial Assimilation to Diversity, 102 MICH. L. REV. 944, 946 (2004): Through the ideal of diversity, Grutter reaffirmed Brown's commitment to racial equality.
8. Greenberg, supra note 4, at 1618-19 (noting that Grutter conceptualized affirmative action for what it does for society as a whole). As is well known, Justice O'Connor's opinion for the Court in Grutter validated the University of Michigan Law School's affirmative action policy, in part, by citing amicus briefs from retired military officers and Fortune 500 companies. Grutter, 539 U.S. at 330-31.
9. Greenberg, supra note 4, at 1621.
10. Id. For a similar analysis that preceded Grutter,
11. see Jack Greenberg, Affirmative Action in Higher Education: Confronting the Condition and Theory, 43 B.C. L. REV. 521, 522-25 (2002).
12. See, e.g., Lino A. Graglia, Grutter and Gratz: Race Preference to Increase Racial Representation Held Patently Unconstitutional Unless Done Subtly Enough in the Name of Pursuing Diversity, 78 TUL. L. REV. 2037, 2048 (2004).
13. Derrick Bell, Diversity's Distractions, 103 COLUM. L. REV. 1622, 1624 (2003) [hereinafter Bell, Diversity's Distractions];
14. see also DERRICK BELL, SILENT COVENANTS: BROWN V. BOARD OF EDUCATION AND THE UNFULFILLED HOPES FOR RACIAL REFORM 149 (2004) [hereinafter BELL, SILENT COVENANTS] (referring to Grutter as a prime example of the interest-convergence thesis). Professor Bell referred to interest convergence as a dilemma in his 1980 Harvard Law Review article.
15. Derrick A. Bell, Jr., Brown V. Board of Education and the Interest-Convergence Dilemma, 93 HARV. L. REV. 518 (1980) [hereinafter Bell, Interest-Convergence Dilemma]. Throughout this Article, however, I generally use the terms thesis and theory interchangeably. I do so for two different reasons. First, Professor Bell uses these terms in his subsequent scholarship. Second, the terms are-to my ears, at least- less loaded than the term dilemma.
16. Bell, Interest-Convergence Dilemma, supra note 10.
17. See id. After Professor Bell observed the Cold War implications of Brown, Professor Mary Dudziak discovered extensive documentation that was designed to underscore how anti-Communist concerns played an important role in motivating the U.S. government to advocate racial desegregation.
18. See Mary L. Dudziak, Desegregation as a Cold War Imperative, 41 STAN. L. REV. 61, 66 (1988) (I conclude by suggesting that this article demonstrates Derrick Bell's interest-convergence thesis: The consensus against racial segregation in the 1950s resulted from a convergence of interests on the part of whites and persons of color.). There is no question that anti-Communist sentiment exerted some influence in motivating the Solicitor General's office, among other offices within the U.S. government, to oppose racial segregation.
19. See id. at 62-63. As Professor Curtis Bradley has noted, however, it is also possible that the role of anti-Communism in motivating the government to end desegregation has been overstated.
20. See Curtis A. Bradley, Foreign Affairs and Domestic Reform, 87 VA. L. REV. 1475, 1476 (2001) ([T]o say that Cold War foreign affairs played a role in U.S. civil rights reform does not tell us much about its relative influence as compared with other influences, a difficult if not impossible empirical question. Even in light of the substantial evidence that Professor Dudziak presents suggesting that U.S. government officials linked race relations to Cold War politics, one still might conclude that the influence of the Cold War concerns on civil rights reform was relatively minor when compared with other, domestic influences.).
21. BELL, SILENT COVENANTS, supra note 10, at 151 (Diversity in the classroom, the work floor, and the military, not the need to address past and continuing racial barriers, gained her vote.).
22. Bell, Diversity's Distractions, supra note 10, at 1624.
23. See MICHAEL J. KLARMAN, FROM JIM CROW TO CIVIL RIGHTS: THE SUPREME COURT AND THE STRUGGLE FOR RACIAL EQUALITY 344-63 (2004);
24. GERALD N. ROSENBERG, THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? 52 (2d ed. 2008).
25. BELL, SILENT COVENANTS, supra note 10, at 151.
26. See Michelle Adams, Shifting Sands: The Jurisprudence of Integration Past, Present, and Future, 47 HOW. L.J. 795, 827 (2004) ([W]e have come full circle to the 'interest-convergence' idea articulated by Derrick Bell a generation ago.);
27. Tomiko Brown-Nagin, Elites, Social Movements, and the Law: The Case of Affirmative Action, 105 COLUM. L. REV. 1436, 1484 (2005) (The predominant line of reasoning running through the Michigan opinion remained that affirmative action furthers the interests of whites as a group, even if such programs sometimes deny individual whites access to certain selective institutions of higher education. In other words, the interests of the majority converged with the interests of the minority, and it is this convergence that justified programs that otherwise would be deemed unlawful.);
28. Paul Frymer & John D. Skrentny, The Rise of Instrumental Affirmative Action: Law and the New Significance of Race in America, 36 CONN. L. REV. 677, 678 (2004) (Perhaps [Grutter] is just another example of what Derrick Bell has called 'interest-convergence'-that civil rights progress occurs only in moments when it benefits white elites, whether for economic profit or national security. Just as Brown v. Board of Education's historic prohibition of segregation came in a context of the United States military promoting diversity on behalf of national security, here again in the wake of terrorist attacks-a new national crisis-the Court appears to be paying attention to the views of retired military leaders and powerful business forces that claim affirmative action protects their interests. (footnote omitted));
29. Steven A. Ramirez, Games CEOs Play and Interest Convergence Theory: Why Diversity Lags in America's Boardrooms and What to Do About It, 61 WASH. & LEE L. REV. 1583, 1612-13 (2004) (This alignment of interests was achieved in the Grutter opinion fifty years [after Brown], where it succeeded in securing qualified support for affirmative action from a fundamentally conservative Court.);
30. Daria Roithmayr, Tacking Left: A Radical Critique of Grutter, 21 CONST. COMMENT. 191, 213 (2004) (Derrick Bell writes that material gains come to communities of color only when those gains serve white interests. Grutter demonstrates Bell's point. (footnote omitted)).
31. Sheryll D. Cashin, Shall We Overcome? Transcending Race, Class, and Ideology Through Interest Convergence, 79 ST. JOHN'S L. REV. 253, 271 n.67 (2005).
32. See also Richard Delgado, Two Ways to Think About Race: Reflections on the Id, the Ego, and Other Reformist Theories of Equal Protection, 89 GEO. L.J. 2279, 2284 (2001) [hereinafter Delgado, Two Ways] (describing Interest-Convergence Dilemma as a classic article);
33. Dudziak, supra note 12, at 64 (deeming Interest-Convergence Dilemma important and suggestive);
34. Neil Gotanda, Towards Repeal of Asian Exclusion, in ASIAN AMERICANS AND CONGRESS: A DOCUMENTARY HISTORY 309, 313 (Hyung-Chan Kim ed., 1996) (labeling the theory an influential suggestion);
35. Lani Guinier, From Racial Liberalism to Racial Literacy: Brown v. Board of Education and the Interest-Divergence Dilemma, 91 J. AM. HIST. 92, 94 (2004) (describing Interest- Convergence Dilemma as an influential article);
36. David A. Singleton, Interest Convergence and the Education of African-American Boys in Cincinnati: Motivating Suburban Whites to Embrace Interdistrict Education Reform, 34 N. KY. L. REV. 663, 671 (2007) (deeming the work an influential article);
37. Alexander Tsesis, Justice at War and Brown v. Board of Education, 47 HOW. L.J. 361, 367 (2004) (labeling the work an influential article);
38. Book Note, Brown's Potential, Still Unrealized, 115 HARV. L. REV. 2034, 2036 n.22 (2002) (reviewing WHAT BROWN V. BOARD OF EDUCATION SHOULD HAVE SAID: THE NATION'S TOP LEGAL EXPERTS REWRITE AMERICA'S LANDMARK CIVIL RIGHTS DECISION (Jack M. Balkin ed., 2001) (contending that the theory offers compelling analyses of the Court's motivations for outlawing segregation)).
39. The Interest-Convergence Dilemma played a significant role in establishing Professor Bell as the most prominent black law professor of his era.
40. See Richard Delgado, Derrick Bell's Toolkit-Fit to Dismantle that Famous House?, 75 N.Y.U. L. REV. 283, 284 (2000) (listing the Interest-Convergence Dilemma first among the treasure trove of ideas [that] Derrick Bell has showered on an entire generation of his readers!). For testaments to Professor Bell's prominence,
41. see Richard Delgado, Enormous Anomaly?: Left-Right Parallels in Recent Writing About Race, 91 COLUM. L. REV. 1547, 1550 (1991) (reviewing DERRICK BELL, AND WE ARE NOT SAVED: THE ELUSIVE QUEST FOR RACIAL JUSTICE (1987) [hereinafter BELL, AND WE ARE NOT SAVED]) (Derrick Bell is perhaps the country's leading African- American legal scholar.);
42. Randall L. Kennedy, Racial Critiques of Legal Academia, 102 HARV. L. REV. 1745, 1786 (1989) (Derrick Bell is the most widely-known black legal academic in the country.). Not every commentator was convinced that Professor Bell's scholarship warranted its preeminence.
43. See, e.g., Lino A. Graglia, Book Review, 5 CONST. COMMENT. 436, 437 (1988) (reviewing BELL, AND WE ARE NOT SAVED) ([T]here can be no sin for which reading Professor Derrick Bell is not, for me, adequate punishment.).
44. See Dudziak, supra note 12, at 66.
45. See Ruth Bader Ginsburg, Brown V. Board of Education in International Context, 36 COLUM. HUM. RTS. L. REV. 493, 493 (2005) (Although the Brown decision did not refer to the international stage, there is little doubt that the climate of the era explains, in significant part, why apartheid in America began to unravel after World War II.);
46. Justice Richard J. Goldstone & Brian Ray, The International Legacy of Brown v. Board of Education, 35 MCGEORGE L. REV. 105, 108 (2004) (Derrick Bell's 'interest convergence' theory highlights the domestic significance of the prevailing international situation for the Brown decision. (footnote omitted)).
47. See Cashin, supra note 18, at 254 (contending that the interest-convergence thesis offers a key insight into human nature and American race relations);
48. Angela Onwuachi-Willig, For Whom Does the Bell Toll: The Bell Tolls for Brown?, 103 MICH. L. REV. 1507, 1510 (2005);
49. john a. powell, The Race and Class Nexus: An Intersectional Perspective, 25 LAW & INEQ. 355, 412-13 (2007);
50. Christine H. Rossell, The Convergence of Black and White Attitudes on School Desegregation Issues During the Four Decade Evolution of the Plans, 36 WM. & MARY L. REV. 613 (1995). For applications of the interest- convergence theory to the quest for reparations for the enslavement of blacks in the United States,
51. see Kevin Hopkins, Forgive U.S. Our Debts?: Righting the Wrongs of Slavery, 89 GEO. L.J. 2531 (2001),
52. Van B. Luong, Note, Political Interest Convergence: African American Reparations and the Image of American Democracy, 25 U. HAW. L. REV. 253, 263 (2002).
53. See Richard Delgado, Rodrigo's Roundelay, Hernandez v. Texas and the Interest-Convergence Dilemma, 41 HARV. C.R.-C.L. L. REV. 23, 63 (2006) (applying interest-convergence to explain the Court's decision prohibiting the exclusion of Mexican-Americans from juries and contending that interest- convergence is a helpful method for understanding all of Latino history);
54. María Pabón López, Reflections on Educating Latino and Latina Undocumented Children: Beyond Plyler V. Doe, 35 SETON HALL L. REV. 1373, 1377 (2005) Plyler v. Doe may join Brown v. Board of Education as a decision embodying the interest convergence covenants in which educational opportunities for minority students L. REV. 2034, 2036 n.22 (2002) (reviewing WHAT BROWN V. BOARD OF EDUCATION SHOULD HAVE SAID: THE NATION'S TOP LEGAL EXPERTS REWRITE AMERICA'S LANDMARK CIVIL RIGHTS DECISION (Jack M. Balkin ed., 2001) (contending that the theory offers compelling analyses of the Court's motivations for outlawing segregation)). The Interest-Convergence Dilemma played a significant role in establishing Professor Bell as the most prominent black law professor of his era.
55. See Richard Delgado, Derrick Bell's Toolkit-Fit to Dismantle that Famous House?, 75 N.Y.U. L. REV. 283, 284 (2000) (listing the Interest-Convergence Dilemma first among the treasure trove of ideas [that] Derrick Bell has showered on an entire generation of his readers!). For testaments to Professor Bell's prominence,
56. see Richard Delgado, Enormous Anomaly?: Left-Right Parallels in Recent Writing About Race, 91 COLUM. L. REV. 1547, 1550 (1991) (reviewing DERRICK BELL, AND WE ARE NOT SAVED: THE ELUSIVE QUEST FOR RACIAL JUSTICE (1987) [hereinafter BELL, AND WE ARE NOT SAVED]) (Derrick Bell is perhaps the country's leading African- American legal scholar.);
57. Randall L. Kennedy, Racial Critiques of Legal Academia, 102 HARV. L. REV. 1745, 1786 (1989) (Derrick Bell is the most widely-known black legal academic in the country .). Not every commentator was convinced that Professor Bell's scholarship warranted its preeminence.
58. See, e.g., Lino A. Graglia, Book Review, 5 CONST. COMMENT. 436, 437 (1988) (reviewing
59. BELL, AND WE ARE NOT SAVED) ([T]here can be no sin for which reading Professor Derrick Bell is not, for me, adequate punishment.).
60. See Dudziak, supra note 12, at 66.
61. See Ruth Bader Ginsburg, Brown V. Board of Education in International Context, 36 COLUM. HUM. RTS. L. REV. 493, 493 (2005) (Although the Brown decision did not refer to the international stage, there is little doubt that the climate of the era explains, in significant part, why apartheid in America began to unravel after World War II.);
62. Justice Richard J. Goldstone & Brian Ray, The International Legacy of Brown v. Board of Education, 35 MCGEORGE L. REV. 105, 108 (2004) (Derrick Bell's 'interest convergence' theory highlights the domestic significance of the prevailing international situation for the Brown decision. (footnote omitted)).
63. See Cashin, supra note 18, at 254 (contending that the interest-convergence thesis offers a key insight into human nature and American race relations);
64. Angela Onwuachi-Willig, For Whom Does the Bell Toll: The Bell Tolls for Brown?, 103 MICH. L. REV. 1507, 1510 (2005)
65. john a. powell, The Race and Class Nexus: An Intersectional Perspective, 25 LAW & INEQ. 355, 412-13 (2007);
66. Christine H. Rossell, The Convergence of Black and White Attitudes on School Desegregation Issues During the Four Decade Evolution of the Plans, 36 WM. & MARY L. REV. 613 (1995). For applications of the interest- convergence theory to the quest for reparations for the enslavement of blacks in the United States,
67. see Kevin Hopkins, Forgive U.S. Our Debts?: Righting the Wrongs of Slavery, 89 GEO. L.J. 2531 (2001), and Van B. Luong, Note, Political Interest Convergence: African American Reparations and the Image of American Democracy, 25 U. HAW. L. REV. 253, 263 (2002).
68. See Richard Delgado, Rodrigo's Roundelay, Hernandez v. Texas and the Interest-Convergence Dilemma, 41 HARV. C.R.-C.L. L. REV. 23, 63 (2006) (applying interest-convergence to explain the Court's decision prohibiting the exclusion of Mexican-Americans from juries and contending that interest- convergence is a helpful method for understanding all of Latino history);
69. María Pabón López, Reflections on Educating Latino and Latina Undocumented Children: Beyond Plyler v. Doe, 35 SETON HALL L. REV. 1373, 1377 (2005) (Plyler v. Doe may join Brown v. Board of Education as a decision embodying the interest convergence covenants in which educational opportunities for minority students make the possibility of Title VII suits a real deterrent to employers who would discriminate, they must believe that their own self-interests are furthered.
70. See Kevin K. Washburn, A Different Kind of Symmetry, 34 N.M. L. REV. 263, 286-87 (2004) (contending that while certain states are willing to credit tribal court convictions because it serves the public safety interests of the non-Indian majority.the recognition of tribal civil judgments serves no such interest and, thus, under Professor Bell's theory, the non-Indian majority is less willing to respect such judgments (footnote omitted)). For additional examples of the interest-convergence theory's application to other doctrinal fields,
71. see, e.g., Gabriel J. Chin, The Civil Rights Revolution Comes to Immigration Law: A New Look at the Immigration and Nationality Act of 1965, 75 N.C. L. REV. 273, 283-84 (1996) (applying the insights of interest convergence to immigration law). These examples of interestconvergence importation present merely an illustrative rather than an exhaustive list.
72. See, e.g., Bryan L. Adamson, The H'aint in the (School) House: The Interest Convergence Paradigm in State Legislatures and School Finance Reform, 43 CAL. W. L. REV. 173 (2006);
73. Singleton, supra note 18.
74. See, e.g., Dorothy A. Brown, Pensions, Risk, and Race, 61 WASH. & LEE L. REV. 1501, 1505 (2004) ([B]ecause employer sponsored pension plans exclude a majority of Whites and people of color, according to Professor Derrick Bell's interest-convergence thesis, this may be a unique opportunity to effectuate pension reform. (footnote omitted)).
75. See, e.g., Joseph Lubinski, Note, Screw the Whales, Save Me!: The Endangered Species Act, Animal Protection, and Civil Rights, 4 J.L. SOC'Y 377, 411-12 (2003).
76. See, e.g., Adele M. Morrison, Changing the Domestic Violence (Dis)Course: Moving from White Victim to Multi-cultural Survivor, 39 U.C. DAVIS L. REV. 1061, 1114-18 (2006).
77. See, e.g., Justin Stec, The Deconcentration of Poverty as an Example of Derrick Bell's Interest- Convergence Dilemma: White Neutrality Interests, Prisons, and Changing Inner Cities, 2 NW. J.L. & SOC. POL'Y 30 (2007), http://www.law.northwestern.edu/journals/njlsp/v2/n1/2.
78. See, e.g., Eric K. Yamamoto et al., American Racial Justice on Trial-Again: African American Reparations, Human Rights, and the War on Terror, 101 MICH. L. REV. 1269, 1329 (2003) ([I]n the short run, the United States will lack unfettered moral authority and international standing to sustain a preemptive worldwide war on terror unless it fully and fairly redresses the continuing harms of its own historic government-sponsored terrorizing of a significant segment of its populace.);
79. Stephanie M. Weinstein, Note, A Needed Image Makeover: Interest Convergence and the United States' War on Terror, 11 ROGER WILLIAMS U. L. REV. 403, 428 (2006).
80. See, e.g., Kenji Yoshino, Marriage Partners, N.Y. TIMES, June 1, 2008, § MM, at 26. Professor Kenji Yoshino asserted that advocates of same-sex marriage should incorporate the strategic insights of Professor Bell's interest-convergence thesis into the campaign to achieve marital equality. Contemplating recent and upcoming popular votes regarding the permissibility of same-sex marriage, Professor Yoshino suggested that if unmarried heterosexual couples thought that prohibiting same-sex marriage would imperil their own lives (e.g., through lost health care coverage), measures designed to limit marriage would more likely be defeated at the ballot box. Professor Yoshino wrote: If more straights could come to see marriage as a universal right that belongs to all human beings, that would, indeed, be a convergence of interest.
81. See, e.g., Andrews V. City of Monroe, 513 F. Supp. 375, 380 n.11 (W.D. La. 1980).
82. See, e.g., LANI GUINIER & GERALD TORRES, THE MINER'S CANARY: ENLISTING RACE, RESISTING POWER, TRANSFORMING DEMOCRACY 291-92 (2002);
83. Cashin, supra note 18, at 276-77;
84. Douglas E. Litowitz, Some Critical Thoughts on Critical Race Theory, 72 NOTRE DAME L. REV. 503, 525-26 (1997);
85. Onwuachi-Willig, supra note 21, at 1510-11;
86. Suzanna Sherry, All the Supreme Court Really Needs to Know It Learned from the Warren Court, 50 VAND. L. REV. 459, 483 (1997).
87. See ISAIAH BERLIN, THE HEDGEHOG AND THE FOX: AN ESSAY ON TOLSTOY'S VIEW OF HISTORY 1-3 (Phoenix 2009) (1953) (dividing influential writers into two broad categories: hedgehogs, whose work is dedicated to advancing one large proposition, and foxes, whose work resists distillation to a single notion or theme).
88. Dudziak, supra note 12, at 66-67 (discussing the role international relations played in setting civil rights agendas).
89. 40 See, e.g., Cashin, supra note 18, at 271 n.67 (Bell first articulated his enormously influential interest- convergence theory in a Harvard Law Review article published in 1980. (italics added)).
90. Derrick A. Bell, Jr., Racial Remediation: An Historical Perspective on Current Conditions,
91. NOTRE DAME LAW. 5 (1976) [hereinafter Bell, Racial Remediation].
92. Id. at 6.
93. Id. at 7. Professor Bell also postulates that abolition had the benefit for whites of, inter alia, eliminating ubiquitous fears of slave revolt.
94. See id. at 7-8 (President Lincoln was no friend of slavery, but his primary objective was to save the Union.).
95. See id. at 9-11.
96. Professor Bell expressed some initial hesitation, which he later overcame, about assessing a legal development that had occurred so recently.
97. See id. at 11 ([I]t would be presumptuous to attempt almost contemporaneous conclusions about the Brown years.). This caveat indicates how dramatically the scholarly world has changed since the mid-1970s. To think that a Supreme Court case may not yet be ripe for scholarly analysis some twenty-two years after it was decided is a jarring conception to the current era.
98. See id. at 11-12.
99. See Derrick A. Bell, Jr., The Unintended Lessons in Brown v. Board of Education, 49 N.Y.L. SCH. L. REV. 1053, 1054 (2005) [hereinafter Bell, Unintended Lessons] (claiming that people who believe that Brown was a valuable judicial victory subscribe to a hopelessly outmoded worldview).
100. See id. at 1056 (characterizing Brown as the definitive example that the interest of blacks in achieving racial justice is accommodated only when and for so long as policymakers find that the interest of blacks converges with the political and economic interests of whites).
101. Bell, Racial Remediation, supra note 41, at 12.
102. Id. Bell also noted that [t]he foreign policy advantages of a pro-civil rights result in Brown were specifically argued to the Court in the federal government's amicus curiae briefs.
103. Brown V. Bd. of Educ. (Brown II), 349 U.S. 294 (1955).
104. See Bell, Racial Remediation, supra note 41, at 13 (Spurred by the need to confront a political or economic danger to the nation as a whole, serious racial injustice is acknowledged and enjoined, but necessary remedies are not implemented once the economic or political irritant is removed.).
105. Id. at 21 (If, as I have suggested, rights for blacks require for survival a climate permeated with white self-interest, those rights can be expected to wither in the far more hostile atmosphere that exists when the interests and priorities of whites change.).
106. Id. at 14-16.
107. I emphasize these two doctrinal areas because I will return to them in my theoretical critique.
108. See infra text accompanying notes 195-210. The other two areas that Professor Bell contended were indicative of his theory regarding black advancement were (1) due process requirements regarding expulsions in public schools, and (2) the cooptation of NAACP v. Button, 371 U.S. 415 (1963), which held that the application of a Virginia law to the NAACP's activities violated the freedom to associate protected by the First and Fourteenth Amendments of the United States Constitution. Bell, Racial Remediation, supra note 41, at 14,16.
109. 380 U.S. 202 (1965).
110. Bell, Racial Remediation, supra note 41, at 15-16 (footnote omitted).
111. 364 U.S. 339 (1960).
112. Bell, Racial Remediation, supra note 41, at 1516.
113. See id. at 16 ([W]hen blacks seek to show that election districts are drawn or policies such as atlarge voting are followed that dilute seriously their political potential, they must prove that the lines or policies were intended to have a racially discriminatory effect. This is not difficult in blatant situations like the Tuskegee case, but it becomes almost impossible in many urban districts where there is no recent history of systematic exclusion and election officials are able to offer nonracial justifications for boundaries and procedures that have a discriminatory effect. (footnotes omitted)).
114. See Bell, Interest-Convergence Dilemma, supra note 10, at 519 (citing Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 HARV. L. REV. 1 (1959)). Professor Wechsler's article caused quite a stir among legal academics. For particularly forceful responses to Neutral Principles's questioning of Brown's constitutional legitimacy,
115. see Charles L. Black, The Lawfulness of the Segregation Decisions, 69 YALE L.J. 421 (1960);
116. Louis Pollak, Racial Discrimination and Judicial Integrity: A Reply to Professor Wechsler, 108 U. PA. L. REV. 1 (1959).
117. Wechsler, supra note 63, at 28-29.
118. Id. at 29. Neutral Principles is, of course, concerned with a good deal more than Brown's constitutional legitimacy, but the Brown portion of the piece is its most controversial-and, not coincidentally, its most memorable.
119. See id. at 33.
120. See id. at 34 (Its human and its constitutional dimensions lie entirely elsewhere, in the denial by the state of freedom to associate, a denial that impinges in the same way on any groups or races that may be involved.). Professor Wechsler's concern with the associational implications of Brown finds an avatar in Zora Neale Hurston, who asked: How much satisfaction can I get from a court order for somebody to associate with me who does not wish me near them? Zora Neale Hurston, Court Order Can't Make Races Mix, ORLANDO SENTINEL, Aug. 11, 1955, reprinted in ZORA NEALE HURSTON, FOLKLORE, MEMOIRS, AND OTHER WRITINGS 956,58 (1995).
121. Wechsler, supra note 63, at 34 (Given a situation where the state must practically choose between denying the association to those individuals who wish it or imposing it on those who would avoid it, is there a basis in neutral principles for holding that the Constitution demands that the claims for association should prevail? I should like to think there is, but I confess that I have not yet written the opinion. To write it is for me the challenge of the school-segregation cases.).
122. See Bell, Interest-Convergence Dilemma, supra note 10, at 522 (To doubt that racial segregation is harmful to blacks, and to suggest that what blacks really sought was the right to associate with whites, is to believe in a world that does not exist now and could not possibly have existed then.). Professor Bell cast his lot with Professor Black, who correctly viewed racial equality as the neutral principle which underlay the Brown opinion.
123. see Black, supra note 63.
124. See Bell, Interest-Convergence Dilemma, supra note 10, at 523. Professor Bell's method of offering two cheers for Neutral Principles bears striking similarity to his treatment of Professor Alexander Bickel's prediction that Brown may be headed for-dread word-irrelevance. ALEXANDER M. BICKEL, THE SUPREME COURT AND THE IDEA OF PROGRESS 151 (1970). Bell wrote: When, in 1970, [Bickel] questioned the long-term viability of the Brown decision in a highly praised book, civil rights lawyers and liberal scholars were annoyed. Few of us at that time had any doubts that we would eventually prevail in eradicating segregation 'root and branch' from the public schools. Now, more than three decades later, Professor Bickel's prediction, heavily criticized at the time, has become an unhappy but all too accurate reality. BELL, SILENT COVENANTS, supra note 10, at 94 (italics added).
125. See Bell, Interest-Convergence Dilemma, supra note 10, at 523 ([I]t is clear that racial equality is not deemed legitimate by large segments of the American people, at least to the extent it threatens to impair the societal status of whites. Hence, Wechsler's [Neutral Principles].suggests a deeper truth about the subordination of law to interest-group politics with a racial configuration.).
126. Id. (emphasis added).
127. See id. at 524-26. Given that blacks had long sought judicial relief from racial segregation in educational facilities, Professor Bell asked: What accounted, then, for the sudden shift in 1954 away from the separate but equal doctrine and towards a commitment to desegregation
128. Id. at 524 & n.31 (citing Roberts v. City of Boston, 59 Mass. (5 Cush.) 198 (1849)).
129. Id. at 526.
130. Id. at 528.
131. Id. at 532.
132. Id. at 533 (If [Brown].is to remain viable, those who rely on it must exhibit the dynamic awareness of all the legal and political considerations that influenced those who wrote it. Professor Wechsler warned us early on that there was more to Brown than met the eye. Criticism, as we in the movement for minority rights have every reason to learn, is a synonym for neither cowardice nor capitulation. It may instead bring awareness, always the first step toward overcoming still another barrier in the struggle for racial equality.).
133. BELL, SILENT COVENANTS, supra note 10, at 58.
134. See DERRICK BELL, RACE, RACISM, AND AMERICAN LAW 211 (5th ed. 2004) [hereinafter BELL, RACE, RACISM].
135. Id. The quoted passage continues: Then, as now, blacks can progress in the society only when that progress is perceived by the white majority as a clear benefit to whites, or at least not a serious risk.
136. Id. For earlier declarations that conditions for blacks in the modern era bore a striking similarity to conditions for slaves,
137. see Derrick A. Bell, Jr., Bakke, Minority Admissions, and the Usual Price of Racial Remedies, 67 CALIF. L. REV. 3, 16 (1979) [hereinafter Bell, Bakke].
138. Derrick Bell, Racial Realism, 24 CONN. L. REV. 363, 374 (1992) [hereinafter Bell, Racial Realism].
139. Id. at 363;
140. see DERRICK BELL, FACES AT THE BOTTOM OF THE WELL: THE PERMANENCE OF RACISM, at ix (1993) [hereinafter BELL, FACES] ([R]acism is an integral, permanent, and indestructible component of this society.).
141. Bell, Racial Realism, supra note 85, at 363.
142. Id. at 373 (emphasis omitted).
143. See Bell, Interest-Convergence Dilemma, supra note 10, at 523,6.
144. See id. at 526.
145. See id.
146. Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1856), superseded by constitutional amendment, U.S. CONST. amend. XIV.
147. Plessy v. Ferguson, 163 U.S. 537 (1896), abrogated by Gayle v. Browder, 352 U.S. 903 (1956) (per curiam).
148. MARY PATTILLO, BLACK ON THE BLOCK: THE POLITICS OF RACE AND CLASS IN THE CITY 2 (2007) (dismissing the concept of a unitary black political agenda);
149. see id. at 12 (The fact of racial homogeneity does not preclude the importance of difference, divisions, and distinctions.).
150. See CAROL M. SWAIN, BLACK FACES, BLACK INTERESTS: THE REPRESENTATION OF AFRICAN AMERICANS IN CONGRESS (2006);
151. Lani Guinier, The Triumph of Tokenism: The Voting Rights Act and the Theory of Black Electoral Success, 89 MICH. L. REV. 1077, 1080 (1991).
152. See Pamela Karlan, The Rights to Vote: Some Pessimism About Formalism, 71 TEX. L. REV. 1705, 1733 (1993) (Republicans have advanced a pure aggregation model of voting rights, assuming that the creation of majority-black districts will deprive white Democrats of a critical element of their base of support and thereby allow Republicans to win
153. Grant M. Hayden, Resolving the Dilemma of Minority Representation, 92 CALIF. L. REV. 1589, 1615 (2004).
154. 99 See, e.g., Gary Orfield, Why Segregation Is Inherently Unequal: The Abandonment of Brown and the Continuing Failure of Plessy, 49 N.Y.L. SCH. L. REV. 1041, 1051-52 (2004).
155. See, e.g., Kevin Brown, Reflections on Justice Kennedy's Opinion in Parents Involved: Why Fifty Years of Experience Shows Kennedy Is Right, 59 S.C. L. REV. 735, 739-40 (2008) (suggesting that even ardent advocates of school integration must recognize that demographic realities make achieving integration difficult).
156. See Derrick A. Bell, Jr., Serving Two Masters: Integration Ideals and Client Interests in School Desegregation Litigation, 85 YALE L.J. 470, 512 (1976) (claiming that NAACP lawyers elevated their interest in achieving racial integration above their clients' interest in obtaining a strong education independent of concerns regarding racial composition). For a thoughtful, historically based rejoinder to Professor Bell's Serving Two Masters,
157. see Tomiko Brown-Nagin, Race as Identity Caricature: A Local Legal History Lesson in the Salience of Intraracial Conflict, 151 U. PA. L. REV. 1913 (2003). More recently, Professor Bell authored a mock judicial opinion contending that the Supreme Court should have affirmed Plessy and actually enforced the equal portion of the separate but equal doctrine. Derrick A. Bell, Bell, J., Dissenting, in WHAT BROWN V. BOARD OF EDUCATION SHOULD HAVE SAID 185, 186 (Jack M. Balkin ed., 2001) (I regret that the Court fails to
158. see in these cases the opportunity to lay bare the simplistic hypocrisy of the 'separate but equal' standard, not by overturning Plessy, but by ordering its strict enforcement.).
159. See Richard H. Sander, A Systematic Analysis of Affirmative Action in American Law Schools, 57 STAN. L. REV. 367 (2004).
160. See, e.g., Daniel E. Ho, Affirmative Action's Affirmative Actions: A Reply to Sander, 114 YALE L.J. 2011 (2005);
161. David B. Wilkins, A Systematic Response to Systemic Disadvantage: A Response to Sander, 57 STAN. L. REV. 1915 (2005).
162. See Eric J. Miller, Role-Based Policing: Restraining Police Conduct Outside the Legitimate Investigative Sphere, 94 CALIF. L. REV. 617, 625, 670 (2006) (criticizing the over-policing of minority neighborhoods and advocating a form of policing that rejects the aggressive enforcement of low-level, nonviolent crimes).
163. See RANDALL KENNEDY, RACE, CRIME, AND THE LAW 19 (1997) ([T]he principal injury suf of the laws.). For a dispute over the wisdom of black jurors nullifying convictions of black criminal defendants accused of committing nonviolent crimes, compare Paul Butler, Racially Based Jury Nullification: Black Power in the Criminal Justice System, 105 YALE L.J. 677 (1995), which extols the virtues of jury nullification, with KENNEDY, supra, at 12.28, 295,310, which condemns jury nullification because such methods violate the politics of respectability.
164. See E. FRANKLIN FRAZIER, BLACK BOURGEOISIE 111 (Simon & Schuster 1997) (1957) (When the Negroes started a campaign for their admission to the 'white' cinema and the 'white' restaurant, the Negro political leader discouraged them and urged them to be loyal to Negro business enterprises.).
165. J.L. CHESTNUT & JULIA CASS, BLACK IN SELMA 172 (1990).
166. Bell, Interest-Convergence Dilemma, supra note 10, at 523.
167. Id. at 52526.
168. Id. at 523, 52526.
169. See Eugene L. Horowitz, Race Attitudes, in CHARACTERISTICS OF THE AMERICAN NEGRO 139, 20305 (Otto Klineberg ed., 1944) (reporting divergent attitudes among northern college students regarding racial equality).
170. KWAME ANTHONY APPIAH, THE HONOR CODE: HOW MORAL REVOLUTIONS HAPPEN (2010) (noting that appeals to honor have motivated individuals and societies to alter their conduct);
171. DANIEL A. FARBER & PHILIP P. FRICKEY, LAW AND PUBLIC CHOICE: A CRITICAL INTRODUCTION 7 (1991) (challenging the notion in public choice theory that voters, legislators, and interest groups invariably and exclusively act out of pure greed).
172. See supra text accompanying note 12.
173. This Article engages principally with the theoretical underpinnings of interest convergence rather than its historical claims. But two brief historical points merit mentioning here. First, during the 1950s, anti-Communist sentiment pervaded American society. Although many desegregation advocates attempted to claim the mantle of anti-Communism, it is important to note that segregationists often claimed that advocates of integration were in fact Communists.
174. See JASON SOKOL, THERE GOES MY EVERYTHING: WHITE SOUTHERNERS IN THE AGE OF CIVIL RIGHTS, 1945-1975, at 40 (2006) (Soon after the Brown decision, Senator Eastland charged that the Supreme Court was under communist control. The Court has become 'indoctrinated and brainwashed by left-wing pressure groups,' Eastland contended. The Supreme Court justices must be communists, many white southerners agreed. Jewell Lamm of Middlesex, North Carolina, wrote to her congressman, 'Personally I think all nine of the old political hacks ought to be exiled to Russia.'). Second, if Chief Justice Warren's opinion for the Court in Brown was exclusively or even principally motivated by anti-Communism, why did he neglect to mention it? Chief Justice Warren's opinion was, of course, written to be reprinted in newspapers around the nation and was designed to maximize acceptance among white Southerners.
175. See RICHARD KLUGER, SIMPLE JUSTICE: THE HISTORY OF BROWN V. BOARD OF EDUCATION AND BLACK AMERICA'S STRUGGLE FOR EQUALITY 699 (rev. & expanded ed. 2004) (1975) (noting that Chief Justice Warren wanted the opinion to be short, readable by the lay public, non-rhetorical, unemotional and, above all, nonaccusatory). It seems reasonable to believe that even an oblique statement regarding America's place interesting the world or the Cold War may have been a powerful rhetorical point in achieving the Chief Justice's aims. Although it may be objected that a Cold War reference would be improper in a Supreme Court opinion, there are at least two responses: (1) the brief filed by the United States government made the argument, Brief for the United States as Amicus Curiae at 6-8,
176. Brown V. Bd. of Educ., 347 U.S. 483 (1954) (No. 8), 1952 WL 82045, at 6-8, and (2) Brown is not exactly known for its adherence to traditional legal authorities,
177. see Brown, 347 U.S. at 49495 n.11 (citing psychological studies on the effects of segregation).
178. For example, despite widespread prohibition of the death penalty in Europe, the United States continues to uphold the death penalty.
179. See, e.g., Baze V. Rees, 553 U.S. 35 (2008) (upholding imposition of capital punishment in the form of lethal injection). Similarly, the Court has upheld the right to gun ownership in the face of European prohibitions on handgun ownership.
180. See, e.g., District of Columbia v. Heller, 554 U.S. 570 (2008) (holding that the Second Amendment protects an individual right to possess firearms in the home for self-defense).
181. Professor Bell's early articulation of the interest-convergence theory allowed some space for multiple motivations.
182. See Bell, Racial Remediation, supra note 41, at 12 (suggesting that among the factors explaining Brown was a humane as well as politically aware Supreme Court). But such allowances have generally receded from Professor Bell's analysis.
183. See, e.g., RICHARD A. POSNER, THE ECONOMICS OF JUSTICE 1 (1981) (Although the traditional subject of economics is indeed the behavior of individuals and organizations in markets, a moment's reflection on the economist's basic analytical tool for studying markets will suggest the possibility of using economics more broadly. That tool is the assumption that people are rational maximizers of their satisfactions.).
184. By extension, this analysis applies with equal force to claims of social justice made by members of other oppressed groups on their own behalf.
185. See supra Part I.
186. Bell, Bakke, supra note 84, at 16;
187. see also BELL, RACE, RACISM, supra note 82, at 211.
188. Bell, Racial Realism, supra note 85, at 374.
189. See Marshall H. Medoff, Discrimination and the Occupational Progress of Blacks Since 1950, 44 AM. J. ECON. & SOC. 295, 295 (1985) (finding that the occupational position of Blacks relative to Whites showed substantial improvement between 1950 and 1980 in both the North and South and the United States as a whole);
190. Tamar Jacoby, Whatever Became of Integration?, WASH. POST, June 28, 1998, at C2 (Blacks as a group have made enormous progress in the past three or four decades. The black middle class has quadrupled, education levels have soared and blacks are increasingly represented in electoral politics and other influential realms of national life.).
191. See, e.g., MICHELLE ALEXANDER, THE NEW JIM CROW: MASS INCARCERATION IN THE AGE OF COLORBLINDNESS 2 (2010) (What has changed since the collapse of Jim Crow has less to do with the basic structure of our society than with the language we use to justify it. We have not ended racial caste in America; we have merely redesigned it.);
192. Charles Ogletree, Jr., Black Man's Burden: Race and the Death Penalty in America, 81 OR. L. REV. 15, 23 (2003) ([T]he only difference between lynching and capital punishment is the gloss of legality and procedural regularity that the latter enjoys. In this regard, application of the death penalty may be fairer than the vigilante justice that characterized the Jim Crow era, but not by much.).
193. See, e.g., RICHARD THOMPSON FORD, THE RACE CARD: HOW BLUFFING ABOUT BIAS MAKES RACE RELATIONS WORSE 67 (2008) (describing how pop singer Prince claimed that his record label had made him a slave).
194. Philip Elman, who worked in the Solicitor General's office during the fall of Jim Crow, offers a pithy portrait of black life in Washington, D.C., before the Court deemed state-sanctioned racial segregation impermissible. Philip Elman, The Solicitor General's Office, Justice Frankfurter, and Civil Rights Litigation, 1946-1960: An Oral History, 100 HARV. L. REV. 817, 823,24 (1987) (You have to remember that in 1952 the District of Columbia was a southern city; it had separate black and white school systems. Negroes were barred from eating in downtown restaurants. The only places they could eat were in the black ghettos. If Thurgood Marshall came to Washington to argue a case in the Supreme Court, he could not stay in a downtown hotel; he had to go out to Fourteenth and U Street, to the Dunbar Hotel. Even at the Supreme Court, the only blacks were messengers. There was no black in the Clerk's or Marshall's office, no black on the police force; they were considered white man's jobs. It seems incredible today, but that's the way it was not too long ago.).
195. Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 407 (1856), superseded by constitutional amendment, U.S. CONST. amend. XIV.
196. Plessy v. Ferguson, 163 U.S. 537, 549 (1896), abrogated by Gayle v. Browder, 352 U.S. 903 (1956) (per curiam).
197. Martin Luther King, Jr., Letter from Birmingham City Jail (1963), reprinted in A TESTAMENT OF HOPE: THE ESSENTIAL WRITINGS OF MARTIN LUTHER KING, JR. 289, 292-93 (James Melvin Washington ed., 1986).
198. 376 U.S. 650 (1964).
199. Bell, Interest-Convergence Dilemma, supra note 10, at 523. Professor Bell has sometimes explicitly suggested that racial status includes an economic component.
200. See Derrick A. Bell, Jr., Waiting on the Promise of Brown, 39 LAW & CONTEMP. PROBS. 341, 345 (1975) (Full implementation of Brown remains an uncertain future prospect because of the continuing resistance of many whites who fear that the realization of 'equal educational opportunities' for blacks will mean the loss of economic and status benefits that they and their children now enjoy solely on the basis of race.).
201. Bell, Interest-Convergence Dilemma, supra note 10, at 523.
202. 346 U.S. 100 (1953).
203. KLUGER, supra note 114, at 598.
204. 409 U.S. 205, 209-10, 212 (1972).
205. Wechsler, supra note 63, at 34.
206. See SOKOL, supra note 115, at 4 (The civil rights movement altered race relations, overturned ingrained practices, subverted traditions, ushered in political change, transformed institutions, undermined a way of life, and even turned cities upside down.).
207. See, e.g., Michael Powell, Decades of Gains Vanish for Blacks in Memphis, N.Y. TIMES, May 31, 2010, at A1 (noting that rising unemployment and growing foreclosures in the recession have combined to destroy black wealth and income and erase two decades of slow progress).
208. See Michael Powell, 45 Years Later, Witnesses to Dr. King's Dream See a New Hope, N.Y. TIMES, Aug. 28, 2008, at A1 (reporting the comments of Congressman and former civil rights activist John Lewis who said, When people say nothing has changed, I feel like saying, 'Come walk in my shoes.').
209. There are, of course, nonblack citizens and nonwhite judges who are important actors in shaping American race relations. This Article addresses black citizens and white judges because they are, from the interest-convergence vantage point, at the opposite ends of society's power structure. It is worth noting, though, that Professor Bell does not discuss black members of the judiciary in the context of the interest- convergence theory. Were interest-convergence adherents to contemplate black judges, they might advance two principal arguments. First, they might contend that black people who are sufficiently palatable to the establishment so as to be nominated by the President and confirmed by the Senate are, virtually by definition, disinclined to seek profound racial reform.
210. Lewis M. Steel, A Critic's View of the Warren Court-Nine Men in Black Who Think White, N.Y. TIMES, Oct. 13, 1968, § 6 (Magazine), at 56. Second, they might contend that, even assuming that a few right-thinking black judges could sneak through the process with their righteous views undetected, not enough such judges could be confirmed so as to make any meaningful difference in the lives of black people.
211. BELL, SILENT COVENANTS, supra note 10, at 59 (While blacks had been petitioning the courts for decades to find segregation unconstitutional, by 1954 a fortuitous symmetry existed between what blacks sought and what the nation needed.). Professor Bell was not, of course, the only person who viewed Brown as the product of fortuity. Indeed, Justice Frankfurter famously viewed the unanimous decision in Brown as the result of divine fortune.
212. See JAMES T. PATTERSON, BROWN V. BOARD OF EDUCATION: A CIVIL RIGHTS MILESTONE AND ITS TROUBLED LEGACY 57 (2001) (describing how Justice Felix Frankfurter called the death of Chief Justice Fred Vinson the first indication I have ever had that there is a God).
213. BELL, SILENT COVENANTS, supra note 10, at 9.
214. Again, Professor Bell's early formulation of the interest-convergence thesis demonstrated considerably greater awareness of both black agency and the need to pursue multiple strategies for racial reform simultaneously.
215. See Bell, Racial Remediation, supra note 41, at 28 (The quest for racial equality cannot be delegated. Programs and policies should be structured to harmonize with the principle: 'no one can free black people but themselves.');
216. id. at 14 ([T]he quest by blacks for racial justice has resulted in dozens of major court decisions that led to social reforms of general significance. These decisions are seldom society's gifts. The litigation is usually carefully planned and intelligently executed. (footnote omitted)). Such statements, alas, seldom appeared in subsequent iterations of the interestconvergence thesis and were typically watered down when they did appear.
217. See, e.g., BELL, SILENT COVENANTS, supra note 10, at 71 ([R]acial policy actions may be influenced, but are seldom determined, by the seriousness of the harm blacks are suffering, by the earnest petitions they have argued in courts, by the civil rights bills filed in legislative chambers, or even by impressive protests conducted in the streets. None of these change blacks' status as fortuitous beneficiaries.). This strikingly passive approach to agency afflicts many adherents to the interest-convergence theory. For example, Professor Yoshino contends, in explaining Professor Bell's thesis, that Brown happened in part because of the Cold War.
218. See Yoshino, supra note 35. Supreme Court cases do not, of course, simply happen[];
219. rather, parties brief cases, and Supreme Court Justices decide those cases.
220. See also Lubinski, supra note 31, at 412 (The [interest-convergence] theory.provides animal advocates with the rhetoric required for a successful campaign and the precedent to persist-eventually the individstars will align and breakthroughs will ensue.). Although Lubinski's excerpted analysis sounds lmost satirical, read in context it appears to be sincere.
221. BELL, SILENT COVENANTS, supra note 10, at 77.
222. See, e.g., STEVEN HAHN, A NATION UNDER OUR FEET: BLACK POLITICAL STRUGGLES IN THE RURAL SOUTH FROM SLAVERY TO THE GREAT MIGRATION (2003).
223. See generally KLUGER, supra note 114, at 125-31, 147-56 (providing Houston's biography and detailing his involvement in the campaign for civil rights);
224. GENNA RAE MCNEIL, GROUNDWORK: CHARLES HAMILTON HOUSTON AND THE STRUGGLE FOR CIVIL RIGHTS 13155 (1983) (describing Houston's work as Special Counsel for the NAACP);
225. MARK V. TUSHNET, THE NAACP'S LEGAL STRATEGY AGAINST SEGREGATED EDUCATION, 1925-1950 (1987) (discussing the NAACP legal strategy).
226. See DAVID J. GARROW, BEARING THE CROSS: MARTIN LUTHER KING, JR., AND THE SOUTHERN CHRISTIAN LEADERSHIP CONFERENCE 8586 (First Quill 1999) (1986);
227. see also Randall Kennedy, Martin Luther King's Constitution: A Legal History of the Montgomery Bus Boycott, 98 YALE L.J. 999, 102024 (1989) (describing King's background and involvement in the beginning of the bus boycotts).
228. See Bell, Racial Remediation, supra note 41, at 24.
229. Professor Bell's emphasis on the legitimation aspect of black success may well stem from a desire to avoid a sense of complacency on the part of individuals who are now interested in pursuing racial equality. This anti-complacency motivation may also account for his insistence that America's racial climate remains largely unchanged since slavery. Although I share Professor Bell's concern that profound racial inequality continues to plague this nation, we appear to part company regarding which tactics will prove most helpful in addressing that inequality. In contrast to Professor Bell, it is my sense that forthrightly acknowledging considerable racial progress will-in addition to having the virtue of striking people as accurate-prevent individuals from believing that racial problems are intractable. Of course, it is also distinctly possible that a combination of approaches may well prove most effective in combating racial inequality.
230. See Bell, Interest-Convergence Dilemma, supra note 10, at 524 ([T]he decision helped to provide immediate credibility to America's struggle with Communist countries to win the hearts and minds of emerging third world peoples. At least this argument was advanced by lawyers for both the NAACP and the federal government.).
231. See Bell, Unintended Lessons, supra note 49, at 1066 (Once revealed as a motivating factor, interest convergence can be transformed into useful strategy. Those that defended the University of Michigan's affirmative action plans, for example, utilized interest convergence by promoting diversity as being in the self-interest of the University. Interest convergence was part of their strategy, planned for in advance, rather than a happy coincidence recognized in retrospect. (footnote omitted)).
232. See supra Part II.A.
233. See KLARMAN, supra note 15, at57.
234. On the moral implications of Brown,
235. see J. HARVIE WILKINSON, FROM BROWN TO BAKKE: THE SUPREME COURT AND SCHOOL INTEGRATION 62 (1979) (No single decision has had more moral force than Brown;
236. few struggles have been morally more significant than the one for the racial integration of American life.).
237. See, e.g., United States v. Classic, 313 U.S. 299 (1941) (protecting a citizen's right to participate in primary elections).
238. See, e.g., Shelley v. Kraemer, 334 U.S. 1 (1948) (deeming racially restrictive covenants uneforceable).
239. See, e.g., Brown V. Bd. of Educ., 347 U.S. 483 (1954);
240. McLaurin v. Okla. State Regents, 339 U.S. 637 (1950);
241. Sweatt v. Painter, 339 U.S. 629 (1950).
242. See Robert C. Post, The Supreme Court 2002 Term-Foreword: Fashioning the Legal Constitution: Culture, Courts, and Law, 117 HARV. L. REV. 4, 110 (2003) (Because the Court in Brown was deeply committed as a matter of professional belief to the constitutional value of nondiscrimination, it was willing to undertake extraordinary efforts to transform constitutional culture.).
243. Professor Bell has, on at least two occasions, singled out particular Justices for writing opinions worthy of praise
244. See Derrick A. Bell, Jr., California's Proposition 209: A Temporary Diversion on the Road to Racial Disaster, 30 LOY. L.A. L. REV. 1447, 145758 (1997) (praising Justice Stevens's dissenting opinion in Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) (Stevens, J., dissenting), for encouraging the Court to acknowledge the constitutional distinction between programs designed to perpetuate racial subordination and programs designed to eradicate racial subordination);
245. Bell, Diversity's Distractions, supra note 10, at 1624 (praising Justice Ginsburg's dissenting opinion in Gratz v. Bollinger, 539 U.S. 244 (2003) (Ginsburg, J., dissenting), for its acknowledgement that the current racial disparities are owed to historical injustices). It is no coincidence that both of these opinions are in dissent.
246. See, e.g., Bell, Racial Remediation, supra note 41, at 6 ([E]ven a rather cursory look at American legal history suggests that in the past, the most significant political advances for blacks resulted from policies which were intended and had the effect of serving the interests and convenience of whites rather than remedying racial injustices against blacks.).
247. See LUCAS A. POWE JR., THE SUPREME COURT AND THE AMERICAN ELITE, 1789-2008, at 279 (2009) (contending that none of the Justices realized that Roe v. Wade, 410 U.S. 113 (1973), would become an intensely reviled decision);
248. Carol S. Steiker & Jordan M. Steiker, Sober Second Thoughts: Reflections on Two Decades of Constitutional Regulation of Capital Punishment, 109 HARV. L. REV. 355, 362-63 (1995) (observing that, although the Supreme Court may have thought that its decision in Furman v. Georgia, 408 U.S. 238 (1972), inflicted a fatal blow to the practice of capital punishment within the United States, that decision may have in fact helped to revive the practice).
249. See, e.g., KLARMAN, supra note 15, at 389-408 (suggesting that Brown did not bring integration to the South but that it did succeed in eliminating the space for Southern moderate politicians on the racial question).
250. See id. at 81 (labeling Justice James McReynolds a notorious racist).
251. See J.W. PELTASON, FIFTY-EIGHT LONELY MEN: SOUTHERN FEDERAL JUDGES AND SCHOOL DESEGREGATION 10 (1961). Another example of a federal judge who was driven from the South is Judge J. Skelly Wright of Louisiana, who was labeled by local whites Judas Wright and a traitor to his class. PATTERSON, supra note 141, at 107;
252. see also PELTASON, supra, at 237 (describing how Louisiana legislators called for Judge Wright's imprisonment and condemned President-elect Kennedy for refusing to repudiate Judge Wright);
253. see generally JACK BASS, UNLIKELY HEROES (Univ. of Ala. Press 1990) (1981) (chronicling the Fifth Circuit's response to the Court's decree of all deliberate speed in Brown II, 349 U.S. 294 (1955), focusing upon Judges Richard Rives, John Brown, John Minor Wisdom, and Elbert Tuttle).
254. 98 F. Supp. 529 (E.D.S.C. 1951).
255. Id. at 547-48 (emphasis omitted).
256. Bell, Diversity's Distractions, supra note 10, at 1624.
257. For an early critique of this point,
258. see Litowitz, supra note 37, at 525-26.
259. Derrick Bell, The Supreme Court 1984 Term-Foreword: The Civil Rights Chronicles, 99 HARV. L. REV. 4 (1985) [hereinafter Bell, Foreword]. It seems worth noting here that Professor Bell was the first, and for more than thirty years the only, black law professor to ever write the Foreword for the Harvard Law Review, perhaps the most esteemed platform that exists in legal academia. Professor Guinier recently became the second member of that exclusive club.
260. See Lani Guinier, The Supreme Court 2007 Term-Foreword: Demosprudence Through Dissent, 122 HARV. L. REV. 4 (2008).
261. See Bell, Foreword, supra note 170, at 32. Even expressing the notion that white people would be shock[ed] or embarrass[ed] by blatant racism,
262. id., evinces a great deal of progress on the racial front.
263. Delgado, Two Ways, supra note 18, at 2294 n.133 (citation omitted);
264. see also Richard Delgado, Derrick Bell and the Ideology of Racial Reform: Will We Ever Be Saved?, 97 YALE L.J. 923, 923-24 (1988) [hereinafter Delgado, Will We Ever Be Saved?] (reviewing BELL, AND WE ARE NOT SAVED, supra note 18) ([O]ur system of civil rights statutes and case law serves a homeostatic function, assuring that society has exactly the right amount of racism: Too little would forfeit psychic and financial benefits, too much would risk disruption.).
265. Bell, Unintended Lessons, supra note 49.
266. Id. at 1059.
267. Id. at 1060. This critique of legitimation was also voiced in the first sustained treatment of law and race by a scholar associated with the Critical Legal Studies movement.
268. See Alan David Freeman, Legitimizing Racial Discrimination Through Antidiscrimination Law: A Critical Review of Supreme Court Doctrine, 62 MINN. L. REV. 1049, 1051 (1978) (claiming that Supreme Court decisions that appear to benefit blacks in fact operate to validate a racially unjust legal structure);
269. see also Charles J. Ogletree, Jr., Tulsa Reparations: The Survivors' Story, 24 B.C. THIRD WORLD L.J. 13, 21 (2004) (contending that whites permit short-term gains for African Americans when doing so furthers the short- or long-term goals of the white elite. This is an important check on widespread disaffection that may end in revolution.);
270. Louis Michael Seidman, Brown and Miranda, 80 CALIF. L. REV. 673, 717 (1992) (The mere existence of Brown thus served to.legitimate current arrangements. True, many blacks remained poor and disempowered. But their status was now no longer a result of the denial of equality. Instead, it marked a personal failure to take advantage of one's definitionally equal status.).
271. Bell, Foreword, supra note 170, at 32 (internal quotation mark omitted).
272. 100 U.S. 303 (1880).
273. Bell, Foreword, supra note 170, at 32.
274. See Plessy v. Ferguson, 163 U.S. 537, 551 (1896) (We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.).
275. See Mark V. Tushnet, The Politics of Equality in Constitutional Law: The Equal Protection Clause, Dr. Du Bois, and Charles Hamilton Houston, 74 J. AM. HIST. 884, 886 (1987).
276. 189 U.S. 475 (1903).
277. For an illuminating discussion of Giles,
278. see Richard H. Pildes, Democracy, Anti-Democracy, and the Canon, 17 CONST. COMMENT. 295 (2000).
279. It seems worth noting here that two Justices dissented in Strauder.
280. See Strauder V. West Virginia, 100 U.S. 303, 339 (1880) (Field, J., dissenting).
281. Id. at 308 (majority opinion).
282. See, e.g., JEFFREY ABRAMSON, WE, THE JURY: THE JURY SYSTEM AND THE IDEAL OF DEMOCRACY (Harvard Univ. Press 2000) (1994);
283. Benno C. Schmidt, Jr., Juries, Jurisdiction, and Race Discrimination: The Lost Promise of Strauder v. West Virginia, 61 TEX. L. REV. 1401 (1983).
284. 461 U.S. 574 (1983).
285. 466 U.S. 429 (1984).
286. See Bob Jones, 461 U.S. at 595-96.
287. See Palmore, 466 U.S. at 434.
288. Bell, Foreword, supra note 170, at 32 n.94.
289. Cf. Kennedy, supra note 18, at 1749 (contending that the scholarship of several prominent Critical Race Theorists, including Professor Bell, reveal[s] significant deficiencies-the most general of which is a tendency to evade or suppress complications that render their conclusions problematic).
290. 364 U.S. 339 (1960).
291. Bell, Racial Remediation, supra note 41, at 15-16.
292. 446 U.S. 55 (1980).
293. See Frank R. Parker, The Results Test of Section 2 of the Voting Rights Act: Abandoning the Intent Standard, 69 VA. L. REV. 715, 716 (1983).
294. 478 U.S. 30, 5051 (1986).
295. BELL, RACE, RACISM, supra note 82, at 210.
296. Id. at 509-10.
297. See Guinier, supra note 96, at 1079-80 (expressing skepticism about whether the election of black officials necessarily advances black interests).
298. See James U. Blacksher & Larry T. Menefee, From Reynolds v. Sims to City of Mobile v. Bolden: Have the White Suburbs Commandeered the Fifteenth Amendment?, 34 HASTINGS L.J. 1 (1982).
299. Bell, Racial Remediation, supra note 41, at 15.
300. 476 U.S. 79 (1986).
301. See, e.g., Shaila Dewan, Blacks Still Being Blocked from Juries in the South, Study Finds, N.Y. TIMES, June 2, 2010, at A14.
302. See Batson, 476 U.S. at 102-03 (1986) (Marshall, J., concurring) (contending that the only way to end the racial discrimination that peremptories inject into the jury-selection process is to eliminat[ e] peremptory challenges entirely).
303. See Miller-El v. Dretke, 545 U.S. 231, 268-69 (2005) (Breyer, J., concurring) (advocating a reconsideration of peremptory strikes in light of discriminatory usage).
304. See, e.g., Snyder v. Louisiana, 552 U.S. 472 (2008) (reversing the Louisiana Supreme Court's determination that no Batson violation occurred where the prosecutor's explanation for peremptorily striking a black juror also would have required him to strike white jurors);
305. Miller-El, 545 U.S. at 237 (finding a Batson violation where a prosecutor struck ten out of eleven black jurors from the venire).
306. See, e.g., john a. powell, Racial Realism or Racial Despair?, 24 CONN. L. REV. 533, 550 (1992) (observing that Professor Bell's analysis is unsuccessful in avoiding despair).
307. See, e.g., BELL, FACES, supra note 87, at 10;
308. Tracy E. Higgins, Derrick Bell's Radical Realism, 61 FORDHAM L. REV. 683, 692 (1992) (reviewing BELL, FACES, supra note 87) (Bell's description of racism as a permanent condition is calculated to lead not to despair but, perhaps ironically, to freedom- the freedom from false hope in the unrealized and perhaps unrealizable promise of racial justice.).
309. See George W. Dent, Jr., Race, Trust, Altruism, and Reciprocity, 39 U. RICH. L. REV. 1001, 1026 (2005) (Expressions of despair like Professor Bell's become self-fulfilling prophecies. One who despairs does not bother to strive for racial progress. (footnote omitted)).
310. Bell, Interest-Convergence Dilemma, supra note 10, at 528.
311. Id. at 523 (emphasis added).
312. E.g., Cashin, supra note 18, at 254-55 ([T]he thesis of interest convergence advanced by Professor Derrick Bell, while pessimistic in its outlook, offers a key insight into human nature and American race relations that can and should be harnessed in order to build the sustainable multiracial coalitions that will be necessary if we are to close existing gaps of racial inequality.);
313. Robert S. Chang & Peter Kwan, When Interests Diverge, 100 MICH. L. REV. 1532, 1537 (2002) (The implications of this principle, if true, are far-reaching since the corollary of the principle is that where the judiciary perceives that interests of the white middle and upper class diverge from those of African Americans, they will not be willing to grant racial remedies to African Americans.);
314. powell, supra note 21, at 413 (Derrick Bell's interest convergence formula holds that the interest of Blacks in achieving racial equality will be accommodated only when it converges with the interests of Whites. In a contest between White selfinterest and White racism, justice is the product. This equation tells us that there are opportunities for social justice where allies of social progressives can identify and harness support of whites. (footnotes omitted));
315. Luong, supra note 21, at 274 (Professor Bell's interest convergence theory is instructive because it helps identify the forces that animate civil rights victories and enable a strategic incorporation of legislative and political action.).
316. See Lubinski, supra note 31, at 412 (The [interest-convergence] theory.provides animal advocates with the rhetoric required for a successful campaign and the precedent to persist-eventually the stars will align and breakthroughs will ensue.).
317. See Bell, Interest-Convergence Dilemma, supra note 10, at 525.
318. See supra text accompanying notes 11113.
319. See Yamamoto et al., supra note 34;
320. Weinstein, supra note 34.
321. Yamamoto et al., supra note 34, at 1329.
322. Professor Bell contends that many people incorrectly view blacks as not truly American. See BELL, SILENT COVENANTS, supra note 10, at 195 (Beyond the ebb and flow of racial progress lies the still viable and widely accepted (though seldom expressed) belief that America is a white country in which blacks, particularly as a group, are not entitled to the concern, resources, or even empathy that would be extended to similarly situated whites.).
323. See Singleton, supra note 18, at 664 ([B]lack boys' interest in obtaining a quality education will only be accommodated when it converges with the interests of suburban whites.).
324. Id. at 674 (As Professor Bell argues, blacks' interest in achieving racial equality will not be accommodated unless it converges with the interests of whites. Therefore, given the highly charged politics surrounding interdistrict desegregation remedies, economic integration of Greater Cincinnati schools will not occur unless white, suburban school districts are persuaded that such integration serves their interests.).
325. Id. at 675 (People who live in the Cincinnati metropolitan area can scarcely pick up the morning newspaper without reading about crime rates spiraling out of control. If emphasized, could the marlink between black males' low graduation rates and increasing crime rates persuade white suburbanites to tolerate, if not embrace, interdistrict economic integration?).
326. Id. at 675 (Emphasizing this link.reinforces the stereotype of young black men as dangerous individuals who commit crime, the kind of people suburban families have fled Cincinnati to get away from.).
327. See PELTASON, supra note 165, at 226 (describing Thurgood Marshall as arguing before a threejudge court in New Orleans in 1960 that [t]his is no longer a case of Negro children seeking their constitutional right. This is now a challenge of the officials of the State of Louisiana to the sovereignty of the United States.).
328. Comments revealing racially conspiratorial thought among African-Americans are legion. In one of the more recent such comments, filmmaker Spike Lee stated: Many African-Americans-and I include myself in this group-don't put anything past the United States government when it comes to black people. John Colapinto, Outside Man, NEW YORKER, Sept. 22, 2008, at 52, 61. Instances of racialized conspiracies abound.
329. See, e.g., Daniel Goleman, Anatomy of a Rumor: It Flies on Fear, N.Y. TIMES, June 4, 1991, at C1 (discussing the widespread rumor that the Ku Klux Klan was responsible for a soft drink called Tropical Fantasy that contained an ingredient that would sterilize black men);
330. Nara Schoenberg, Exposing the Output of America's Busy Racial Rumor Mill, CHI. TRIB., Jan. 18, 2002, § 5, at 1 (detailing myriad tales of racial conspiracy surrounding fried chicken: that KFC founder Col. Har preland Sanders stole his recipe from a black domestic worker, that Church's Fried Chicken contained an ingredient manufactured by the KKK to sterilize black males, that the founder of Popeye's fried chicken made a major contribution to the Senate campaign of former KKK Grand Dragon David Duke.).
331. See Michiko Kakutani, It's a Plot!, No, It's Not: A Debunking, N.Y. TIMES, Feb. 16, 2010, at C1;
332. see also CASS R. SUNSTEIN, GOING TO EXTREMES: HOW LIKE MINDS UNITE AND DIVIDE 108, 113 (2009) (dismissing the idea that subscribing to conspiracies is evidence of individual pathology and that [f]or purposes of understanding the spread of conspiracy theories, it is especially important to note that group polarization is particularly likely, and particularly pronounced, when people have a shared sense of identity and are connected by bonds of solidarity).
333. See Jennifer Crocker et al., Belief in U.S. Government Conspiracies Against Blacks Among Black and White College Students: Powerlessness or System Blame?, 25 PERSONALITY & SOC. PSYCHOL. BULL. 941, 946 (1999). Just 9.5% of white respondents agreed with that assessment.
334. Id. 231
335. Id. Just 4.2% of white respondents agreed with that assessment.
336. Here, I have in mind the United States Constitution's accommodation of slavery as a prime example of systemic racial oppression.
337. See, e.g., U.S. CONST. art. I, § 2, superseded by U.S. CONST. amend. XIV;
338. U.S. CONST. art. IV, § 2;
339. superseded by U.S. CONST. amend. XIII. In more recent years, the government targeted only black men to examine the effects of syphilis in the notorious Tuskegee Syphilis Study.
340. See Susan M. Reverby, Special Treatment: BiDil, Tuskegee, and the Logic of Race, 36 J.L. MED. & ETHICS 478, 480 (2008).
341. This expression has been attributed to many people over the years. One such person is Huey P. Newton.
342. See Delgado, supra note 22, at 59.
343. EDWARD C. BANFIELD, THE UNHEAVENLY CITY: THE NATURE AND FUTURE OF OUR URBAN CRISIS 87 (1970).
344. I do not mean to suggest that certain members of the black race are the only people capable of falling into racially conspiratorial viewpoints. Whites may be no more immune to baseless, racially conspiratorial viewpoints than blacks.
345. See, e.g., Peter Beinart, Erasing the Race Factor, WASH. POST, Aug. 13, 2008, at A15 (suggesting that Democratic presidential nominee Barack Obama should adopt policy positions to mitigate the concern that an Obama administration would be dedicated to assisting primarily African-Americans).
346. FORD, supra note 124, at 19 (suggesting that unwarranted accusations of racial discrimination invite the dangers of crying wolf). It is important to note that policies that disproportionately impact blacks are distinct from conspiracies.
347. Bell, Bakke, supra note 84, at 14.
348. BELL, SILENT COVENANTS, supra note 10, at 141.
349. See id. Professor Bell also views white opposition to Brown as evincing a perverse form of racial paranoia: [T]he generation-long struggle over school desegregation sparked by the Brown decision has brought far more attention to the plight of the public schools-and far more money and resources to improve their quality-than would ever have occurred had blacks not made the effort to achieve an 'equal educational opportunity.' Today, public schools are improved, but remain mainly segregated and unequal. Bell, Bakke, supra note 84, at 14-15.
350. See BELL, SILENT COVENANTS, supra note 10, at 141.
351. See, e.g., Glenn C. Loury, A Dynamic Theory of Racial Income Differences, in WOMEN, MINORITIES AND EMPLOYMENT DISCRIMINATION 153, 176 (Phyllis A. Wallace & Annette M. LaMond eds., 1977) (contending that one's informal social network shapes not only what knowledge one can access but also whether one can harness that knowledge in a productive manner). This analysis could intend to suggest that a different (i.e., less well-connected) variety of white man would benefit from a more transparent hiring system, but Professor Bell should spell out precisely how white men stand to benefit.
352. See, e.g., Kenneth L. Shropshire, Minority Issues in Contemporary Sports, 15 STAN. L. & POL'Y REV. 189, 206 (2004).
353. See DANIEL A. FARBER & SUZANNA SHERRY, BEYOND ALL REASON: THE RADICAL ASSAULT ON TRUTH IN AMERICAN LAW 134-35 (1997) (criticizing radical legal scholarship broadly for the negative effects of emphasizing the subtlety that is supposedly required to unmask conspiracy).
354. BELL, SILENT COVENANTS, supra note 10, at epigraph.
355. Delgado, Will We Ever Be Saved?, supra note 175, at 926.
356. Professor Bartlett has identified a similar phenomenon among some feminists. See Katharine T. Bartlett, Tradition, Change, and the Idea of Progress in Feminist Legal Thought, 1995 WIS. L. REV. 303, 323-24.
357. Bell, Racial Realism, supra note 85, at 378.
358. Bell, Unintended Lessons, supra note 49, at 1054.
359. Delgado, supra note 22, at 48 (internal quotation mark omitted).
360. See Richard Delgado & Jean Stefancic, The Racial Double Helix: Watson, Crick, and Brown v. Board of Education (Our No-Bell Prize Award Speech), 47 HOW. L.J. 473, 478 (2004) (No, [Professor Bell] will never win a Nobel Prize, you can bank on it, and probably not a MacArthur 'genius' grant, either. Instead, glory, laud, and honor go to legal figures who obscure how power works, how law operates so that the haves always come out ahead, and how our system, even of race-remedies law, subjugates its supposed beneficiaries.).
361. Bell, Interest-Convergence Dilemma, supra note 10, at 533.
362. FARBER and FRICKEY, supra note 112, at 5 (Public choice can at least provide us with some overall concept of the dynamics of democratic government. So long as we remember that the theory is incomplete, it can provide a useful framework for analysis. The danger lies only in confusing the map with the territory.).