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Derrick Bell, at 80; former Harvard legal scholar worked to expose racism

Professor Bell was a pioneer of “critical race theory,’’ legal scholarship that explores how racism is embedded in laws and legal institutions. Professor Bell was a pioneer of “critical race theory,’’ legal scholarship that explores how racism is embedded in laws and legal institutions. (Associated Press/file 1980)
By Fred A. Bernstein
New York Times / October 7, 2011

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NEW YORK - Derrick Bell, a legal scholar who worked to expose the persistence of racism in America through his books and articles and such provocative career moves as giving up a Harvard Law School professorship to protest the school’s hiring practices, died Wednesday of carcinoid cancer in a New York hospital. He was 80.

Mr. Bell was the first tenured black professor at Harvard Law School and later the first black dean of a law school that was not historically black.

But he was better known for resigning from prestigious jobs than for accepting them.

In his 20s, while working at the Civil Rights Division of the US Justice Department, he was told to give up his membership in the NAACP, which his superiors believed posed a conflict of interest. Instead, he quit the Justice Department, ignoring the advice of friends to try to change things from within.

Thirty years later, when he left Harvard Law School, he rejected similar advice. At the time, he said, his wife, Jewel Hairston Bell, asked him, “Why does it always have to be you?’’

In “Ethical Ambition,’’ a memoir published in 2002, Mr. Bell wrote that his wife’s question trailed him afterward, as did another posed by his colleagues: “Who do you think you are?’’

Addressing law students grappling with career decisions, he extolled what he called “a life of meaning and worth,’’ even though, he wrote, he sometimes alienated associates who saw his actions as “futile and foolish.’’

Mr. Bell, soft-spoken and erudite, wrote that he was “not confrontational by nature.’’ But he attacked both conservative and liberal beliefs. In 1992, he told The New York Times that black Americans were more subjugated than at any time since slavery. And he wrote that in light of the consequences of the Supreme Court’s 1954 desegregation decision, Brown v. Board of Education, things may have worked out better if the court ordered governments to provide both races with truly equivalent schools.

He was a pioneer of “critical race theory,’’ a body of legal scholarship that explored how racism is embedded in laws and legal institutions, even those intended to lessen injustice. He “set the agenda in many ways for scholarship on race in the academy, not just the legal academy,’’ said Lani Guinier, the first black woman hired to join Harvard Law School’s tenured faculty.

At a rally while a student at Harvard Law School, Barack Obama compared Mr. Bell to the civil rights hero Rosa Parks.

Mr. Bell’s core beliefs included what he called “the interest convergence dilemma,’’ the idea that whites would not support efforts to improve the position of blacks unless it was in their interest.

Asked how the status of blacks could be improved, Mr. Bell said he generally supported civil rights litigation, but cautioned that even favorable rulings were likely to yield disappointing results and that it was best to be prepared for that.

Much of his scholarship rejected dry legal analysis in favor of allegorical stories. In books and law review articles, he presented parables about race relations, then debated their meaning with a fictional alter ego, a black professor named Geneva Crenshaw, who forced him to confront the truth about the persistence of racism in America.

One of his best-known parables is “The Space Traders,’’ which appeared in his 1992 book, “Faces at the Bottom of the Well: The Permanence of Racism.’’ In the story, as he later described it, creatures from another planet offer the United States “enough gold to retire the national debt, a magic chemical that will cleanse America’s polluted skies and waters, and a limitless source of safe energy to replace our dwindling reserves’’ in exchange for one thing: its black population, which would be sent to outer space. The white population accepts the offer by an overwhelming margin. (In 1994, “The Space Traders’’ was made into a television movie titled “Cosmic Slop.’’)

Not everyone welcomed the move to narrative and allegory in legal scholarship. In 1997, Richard Posner, the conservative law professor and appeals court judge, wrote in The New Republic that “by repudiating reasoned argumentation,’’ storytellers such as Mr. Bell “reinforce stereotypes about the intellectual capacities of nonwhites.’’

But in Mr. Bell’s hands, the narrative technique became an accepted mode of legal scholarship, giving female, Latino, and gay scholars a new way of introducing their experiences into legal discourse. Reviewing “Faces at the Bottom of the Well,’’ Linda Greenhouse of The New York Times wrote: “The stories challenge old assumptions and then linger in the mind in a way that a more conventionally scholarly treatment of the same themes would be unlikely to do.’’

Derrick Albert Bell Jr. was born in Pittsburgh. He attended the University of Pittsburgh Law School, where he was the only black student. He served as a US Air Force officer for two years, one of them in Korea.

After his brief tenure at the Justice Department, he went to work for the NAACP Legal Defense and Educational Fund Inc. As head of the fund’s Pittsburgh office, he led efforts to integrate a public swimming pool and a skating rink. Later, assigned to Mississippi, he supervised more than 300 school desegregation cases.

In 1968, he accepted a teaching position at the University of Southern California. But he was recruited by Harvard Law School, where students were pressuring the administration to hire a black professor. Mr. Bell conceded that he did not have the usual qualifications for a Harvard professorship, such as a federal court clerkship or a degree from a top law school.

In 1980, he became the dean of the University of Oregon School of Law, but resigned in 1985 when an Asian woman was denied tenure. After returning to Harvard in 1986, he staged a five-day sit-in in his office to protest the school’s failure to grant tenure to two professors whose work involved critical race theory.

In 1990, he vowed to take an unpaid leave of absence until the school, which had never had a black woman on its tenured faculty, hired one. Two years later, the school refused to extend his leave, effectively ending his employment. By then, Mr. Bell was teaching at New York University Law School, where he remained a visiting professor until his death.

Harvard Law School hired Guinier in 1998.

“Most people think of iconoclasts as lone rangers,’’ Guinier said. “But Derrick was both an iconoclast and a community builder. When he was opening up this path, it was not just for him. It was for all those who he knew would follow into the legal academy.’’

Mr. Bell said his personal decisions took a toll on his wife, who had cancer when he left Harvard in 1990 and died that year. In 1992, he began a correspondence with Janet Dewart, who was the communications director of the National Urban League. Dewart proposed marriage before the couple even met. A few months later, he accepted.

Mr. Bell also leaves three sons from his first marriage, Derrick and Douglas, both of Pittsburgh, and Carter of New York; two sisters, Janet of Pittsburgh and Constance of Akron, Ohio; and a brother, Charles of New York.

In “Ethical Ambition,’’ Mr. Bell wrote: “It is not easy to look back over a long career and recognize with some pain that my efforts may have benefited my career more clearly than they helped those for whom I have worked.’’

But a decade earlier, he had said: “I cannot continue to urge students to take risks for what they believe if I do not practice my own precepts.’’