When black law professors shy away from the hard, traditional work of scholarship, they are not seen as serious contenders in the academy.

Webster’s Dictionary defines “lightweight” as “a person lacking in strength of character or intellectual depth,” “a person inadequately qualified for the position he or she fills or the duties he is charged with,” “not to be taken seriously.” In the legal world, Critical Race Theory is so regarded.

The Promise of Better Things to Come

The earliest writings on Critical Race Theory can be traced to the works of Derrick Bell, the founding father.  Bell had come out of the litigation struggle during the 1960s. Rightly concerned with the “snail pace” of racial progress, he began writing arguments critical of traditional civil rights law. He continued his provocative work after his appointment to the Harvard Law School faculty in 1969 and tenure in 1971. Bell wrote with power in those days. His writing was fresh and original. I can recall being captivated by reading his classic Race, Racism, and American Law in the early 1980s as a University of Virginia student. I wanted to be Bell in those days.

Along the way, he became more confrontational and pessimistic about life and the law. He left Harvard Law School in a huff in 1980 when it became clear that Harvard was not going to appoint an African-American woman to its law faculty. Bell fled to the University of Oregon as Dean, a post he held for five years until he returned once again to the Harvard faculty.

Because he taught at the premier law school in the country, Bell’s thoughts had a disproportionate impact on the best and the brightest black law students.  Bell became more of a fiction writer than a scholar of constitutional doctrine. He devised more and more imaginary narratives that infused the law with the experience of racism. He wrote about space ships that came to take blacks away. He wrote about imaginary civil rights lawyers, to keep it real.  And the bright ones took their lead from Bell’s troubled sojourn into irrelevance. Kimberle Crenshaw graduated from Harvard Law in 1984 and began to expand upon the mysticism that became loosely coined “Critical Race Theory.” It is ironic that Crenshaw’s LLM in the law was paid for with a William H. Hastie fellowship, named for one of the leading civil rights traditionalists on the federal bench from 1949 to 1971. Did Crenshaw think deeply about Judge Hastie and that his career path might offer a model for her? No.

After an obligatory State Supreme Court clerkship, Crenshaw took up the fictional narratives of Bell. She wrote about the hopelessness of law making a difference in the real lives of people, work dressed up in the jargon of the day. Bell was pleased. I imagine phone calls were made and Crenshaw became tenured at UCLA.

The Bell-Crenshaw effect began to snowball during the 1980s and 1990s as more and more African-American law professors saw a proven path to career security. Write about the Man, vet your articles to Bell, Crenshaw and company, and pay homage to the futility of it all. To their credit, some African-American law professors rejected the siren call of the pied pipers at Harvard and UCLA.  Professor Stephen Carter at Yale became a well-respected scholar of constitutional law with an emphasis on Separation of Powers and Religion. Professor William Gould, IV at Stanford wrote the treatise on Labor Law and, accordingly, received a Presidential appointment to chair the National Labor Relations Board. Professor Barack Obama at Chicago focused on public service and became U.S. Senator from Illinois. The African-American community has been well served by their work.

But for every Carter, Gould, and Barack, there were tens of Ivy League law professors agonizing over the best way to say that Blacks suffered under the law compared to whites. Too many professors of upper-middle class backgrounds forced themselves to sing a foreign tune of revolution and to stay within the Critical Race Theory box. The titles of some pieces are just ridiculous — The Black Body as Fetish Object, A Hair Piece: Perspectives on the intersection of Race and Gender, etc.
 
What had begun as one man’s private despair turned into a full-fledged intellectual movement. It would be laughable if it were not so true.

The Lost Generation

Bell and Crenshaw spawned a lost generation.

A generation of our best and brightest minds have become disillusioned by shortcomings in the law. They are cynical. They are disdainful of Brown-era notions that the law can be a constructive force for change. They may mouth the words of homage to Charles Hamilton Houston and Thurgood Marshall but they have succumbed to fatalism and despair. That they see themselves as faces at the bottom of the wall is a testament to the senselessness of Critical Race Theory.

But why should you and I care if a few hundred law professors drop out? Why does it matter to African-American life?

When black law professors shy away from the hard, traditional work of scholarship, they are not seen as serious contenders in the academy. The Civil Rights generation understood that everyone was watching when you were the first black in the office. You had to be the best that you could possibly be so that it would be easier for others. One of the quirks in history is that blacks who attended elite schools in the 1910s, 1920s, 1930s, and 1940s were few but they were more likely to be at the top of their class than blacks in the affirmative action generation. Why is that? Ralph Bunche was first in his class at UCLA in 1927. William T. Coleman, Jr. was first in his class at Harvard Law School in 1946.  Theodore McMillian was first in his class at St. Louis University Law School in 1949.  Barack Obama’s father was first in his class at the University of Hawaii in the 1960s. And even Hastie, namesake of the fellowship held by Crenshaw, was first in his class at Amherst in 1925.

That sense of being the best has been lost. In its place reigns a fad of psuedo-fiction where sophomoric stories are wheeled out “to give voice to the voiceless.” These stories have absolutely nothing to do with mastering legal doctrine and the literature. Even if the use of narratives has a place in constructive scholarship, the narratives only matter if they involve an African-American victimized by racism. I can think of many stories from my Black experience that would be censored by the Critical Race Theory club. For example, the narrative of a white-appearing ancestor who steals a large sum of money from his white father and parlays that sum into a 400-acre grubstake for the security of his descendants. There is the tale of an Uncle who through frugality and hard work becomes one of the wealthiest African-Americans in terms of net worth, only to have his estate stolen by a nephew from the sole heir with a forged will. What about the account of a slave who buys his freedom only to become a slave owner himself in
Georgetown, South Carolina? These are stories as well. And they really happened. But they do not fit within the philosophical box of Critical Race Theory. The narratives of real Black people controlling their destinies in the past are censored. Space traders from outer space are more appealing.

White law professors observe and they take note.

But the harm done is greater than the ridicule of white law professors behind closed doors. Black law professors are a unique resource. They have life-long job security. They have the time to reflect deeply about the law. They are duty-bound to write and engage students every day in the complexities of the law. It is not surprising that many great Justices have come from the law professorate. Olive Wendell Holmes, Jr., William O. Douglas, Harlan Fiske Stone, Felix Frankfurter, and Joseph Story were all former law professors. Their great talents were honed in the legal academy. Accordingly, they became regarded as heavyweights in the law. Their writings influenced judges well before their appointments to the U.S. Supreme Court.

Where is the Black Oliver Wendell Holmes, Jr.? Where is the African-American William O. Douglas? Can you identify our Joseph Story today?

To satisfy my curiosity, I decided to conduct an electronic search query on Westlaw. If Critical Race Theory were truly an “exciting new legal genre,” then its impact would be felt in the chambers of federal judges across the country. Would you expect a growing list of citations to Bell, Crenshaw and the newer adherents to the movement? Would you imagine that hundreds of law professors swept up in Critical Race Theory have made a difference in how real cases are decided every day?

You would be wrong.

Out of tens of thousands of federal cases at every level — U.S. Supreme Court to the lowest federal district court — only one judge has ever cited to “Critical Race Theory.” And that lonely cite was in one obscure case involving a challenge to New York City’s termination of fire and police employees for participating in a parade.  Locur v. Giulani, 269 F. Supp. 2d 368, S.D. N.Y. (2003). For all intents and purposes, Critical Race Theory is a non-issue in the real world.

Our Black law professors have written themselves into oblivion. Absolute oblivion. And as long as radical chic holds its grip on their hearts, our potential greats will go unacknowledged and unrecognized. We all suffer in the Black community when talent is wasted away.

Our Grandparents’ Day

I began this essay with Bell and Crenshaw. That they have created a lost generation of law professors is plain. If they care, then they know what they have done. But once the genie got out of the bottle and the ambitious saw that critique worked for tenure, the die was cast. The forward movement was too strong to stop.

The readers of this essay, however, have the distance to step back and see what despair has wrought. It is a national disgrace that our best and brightest have bought into a scheme that is ignored by the federal bench. Our talented should be cranking out treatises and testifying before the U.S. Senate Judiciary Committee and garnering the attention of Judges on the bench. They should not be spending their energies planning the next hot Critical Race Theory workshop where the irrelevant write for one another.

In our grandparents’ day, African-American law professors understood their mission in life. John Mercer Langston, Dean of Howard’s Law School, used his skills in the public service. Langston became the first Black congressman from Virginia and President of Virginia State College and a recognized leader, second only to Frederick Douglas.  Spottswood W. Robinson, Jr. used his law professor position to train as any black lawyers as possible in Virginia during the 1920s. Spottswood W. Robinson, III parlayed a Howard deanship into a judgeship on the U.S. District Court for D.C. and a judgeship on the D.C. Circuit Court of Appeals before retiring as Chief Judge of the D.C. Circuit Court of Appeals. Charles Houston trained a generation of black lawyers out of Howard to fight segregation. And his cousin, William Hastie, used law teaching as a platform to develop skills before moving in and out of influential government positions such as Assistant Solicitor to the Interior Department, race relations advisor to President Roosevelt, U.S. Magistrate in the Virgin Islands, Governor of the Virgin Islands, Judge on the Third Circuit Court of Appeals, and ultimately Chief Judge of the Third Circuit Court of Appeals.

I wrote this essay because a generation has been lost. If we can return to the values and attitudes of our grandparents’ day, we will have more influence as a community in the law. Black law professors will make a difference again.  And the lightness of Critical Race Theory will come to an end.