And We Are Not Saved

...One could make the different argument, of course, that fulfillment of the promise of Brown does not adequately address the problems of blacks—more accurately, of the black underclass, defined largely in terms of single-parent, female-headed homes—as the severe persistence of those problems clearly indicates...

...But they do hate to see blacks do well, because they want to "ensure their domination and maintain their control...

...Any notion that the appointment of Marshall to the Court would provide a "role model" for blacks, as a standard argument for "affirmative action" would have it, was, therefore, clearly without basis...

...Negro kids are not fools...

...Why, he asks, has Brown v. Board of Education's "promise of racial equality escaped a fulfillment that thirty years ago appeared assured...

...T he "Chronicle of the Sacrificed 1 Black Schoolchildren" deals with compulsory school racial integration, one of the greatest of "civil rights" victories, one would think—it wasn't whites, after all, who urged the courts to order racial busing...

...American society should do what it can to help the black underclass, not because it is the result of past wrongs, but because it is, in any event, a blot on American society and inconsistent with the maintenance of a healthy, prosperous, and secure society...

...More important, the case for doing what can be done to improve the present condition of the black underclass should not depend crucially on the extent, if any, to which that condition can be traced to past discrimination...

...Bell's concern is "the salvation of racial equality...

...At least one more black on the Court, it seems, will be necessary for that purpose...

...The control of faculty hiring by such bigots would seem to make it difficult to explain how leading law schools came to have so many faculty members—and, indeed, deans—who are Jewish and not of upper-class backgrounds, unless it is they who are now acting to keep blacks out...

...Bell's hypothetical dean (apparently not a man of great subtlety) explained to Geneva that "a law school of our caliber and tradition simply cannot look like a professional basketball team...

...Black enterprise was no match for the true basis of majoritarian democracy," which, as Professor Bell of the Harvard Law School understands it, is "white economic and military power...

...Geneva usually takes a position even more despairing and disparaging of whites, if possible, than Bell's...

...They know when you tell them there is a possibility that someday you'll have a chance to be the o-n-l-y Negro on the Supreme Court, those odds aren't too good...

...And insofar as courts are seen as the principal actors, as they are by Bell, a "remedy" rationale is probably necessary: the compulsory school integraTHE AMERICAN SPECTATOR NOVEMBER 1988 45 tion (busing) and "affirmative action" decisions all purport, incredibly, to be "remedying" past wrongs...

...The more costly and wasteful the busing, on this analysis, the more it advances the economic interest of whites...

...In the first Chronicle, Geneva attempts unsuccessfully to convince the 1787 Philadelphia constitutional convention not to compromise with slavery—ignoring that the choice was not between abolishing or permitting slavery, which would have continued in the South in any event, but between forming or not forming a stronger union...

...The resulting elimination of "the present social programs, which even now manage only to stave off starvation while keeping the 46 THE AMERICAN SPECTATOR NOVEMBER 1988 masses too weak to recognize their true status," may serve finally "to incite [the] radical reform that is so clearly necessary...

...The fact is that law schools, particularly leading law schools, actively pursue, hire, and grant tenure to black professors who would not be considered if they were white...

...Bell's real complaint seems to be that, although most law schools feel compelled by political and other pressures (which Bell hopes to increase) to hire blacks despite their lack of the usual qualifications, the sense of urgency tends to decline after the first few such hires...

...Bell's inquiry as to the cause of the low socio-economic status of many blacks today is, therefore, entirely misdirected...

...The success of many recent Asian immigrants and West Indian blacks is a further embarrassment to the argument from discrimination...

...Because whites are "threatened by black initiative and comforted by black indolence," however, they quickly actedto reverse these developments by banning the teaching of slave history and destroying the stones...

...Lawyers, like Bell, naturally think in terms of remedying past wrongs...

...The sum of her wisdom on racial matters is, as she states at the beginning, that her "worst fears have been realized" and "equal opportunity" (in quotes) has been transformed from a "guarantee of racial equality into one more device that the society can use to perpetuate the racial status quo...

...Diane Ravitch of Columbia Teachers College believes that Bell is "one of the most original and brilliant thinkers in America today," whose "reflections on civil rights are astonishingly perceptive...

...Marshall undoubtedly would still find it useful to point out to young blacks, however, that their chance would then be to be one of "o-n-l-y" two blacks on the Court and that the odds, therefore, still "aren't too good...

...The mistaken premise of Bell's lament is that a promise of racial equality before the law is a promise of equal outcomes in all endeavors for all racial groups regardless of other factors...

...The deplorable condition of the black underclass is not any less of a serious social problem, however, if it is not primarily due to past discrimination...

...but it takes a social critic of Bell's perception to see that equality of opportunity is also oppression...

...Of all the fantasies in Bell's book, surely none is more fantastic than the notion that one of the worries of today's law school deans is the danger of "surfeits of superqualified minority job applicants...

...The principal problems today of the black underclass are teenage pregnancy and crime, and these have increased in recent years as racial discrimination has decreased...

...In the ensuing discussion, Bell cites statistics meant to show the poor economic condition of blacks relative to whites...

...People often say to Marshall, "We've come a long way" and "You ought to go around the country and show yourself to Negroes, and give them inspiration...

...In short, Bell concludes, "virtually every white person in the city would benefit directly or indirectly" from court-ordered busing...

...The burden of being white should not be so great, despite Bell's efforts, to require countenancing his argument that the two requirements are "close in intent" and different only "in form...

...But it is no help—it is in fact preposterous—to insist, as Bell does, that the source of the problem is "white policy makers' racial motivations," and that "the country's contemporary leaders, . . . having every reason to know that we are not inferior, seem determined to maintain racial dominance even if that aim destroys us and the country...

...Geneva lives in a world where blacks "have always been able to outsmart white folks," but where, unfortunately, you cannot "win an argument with a white man by proving that you were smarter than he was"—views that would be somewhat less acceptable if the racial references were reversed...

...Conservatives who "wage a ceaseless campaign against the liberal orientation" of the Supreme Court's decisions are foolish, therefore, not to recognize that "a conservative and uncaring Supreme Court" might actually be best for blacks...

...The answer, of course, is that Brown's promise has been not only fulfilled but fulfilled beyond any contemplation possible at the time...

...White law teachers," Bell concedes, "aren't bigots in the redneck, sheet-wearing sense...

...According to the dust jacket, no less a personage than Erwin Griswold, former Dean of the Harvard Law School and Solicitor General of the United States, believes that the book is "a stimulating mine of ideas, well worthy of the careful consideration of all thoughtful Americans...

...Here he is not only obviously mistaken but perversely mistaken...

...Bell's argument rests on the contention that racial discrimination has not been eliminated or greatly reduced Lino A. Graglia is Rex G. Baker and Edna Heflin Baker Professor of Constitutional Law at the University of Texas School of Law since Brown—that there are "patterns of contemporary racial discrimination . . . close in intent to, if different in form from, those practiced in earlier times" and an "increasing viability of concepts of white superiority...

...In terms of "racial justice" or "racial equality," there is all the difference in the world between a requirement that, say, police officers be white and a requirement that all applicants for police officer positions pass minimum competency tests, even though one effect of such tests is to disqualify a disproportionate number of blacks...

...It's reassuring to know that his Harvard colleagues, many famous for their burning egalitarian-ism, are not members of the Ku Klux Klan...

...Foolishly, whites fail to realize just how good for them, at least economically, court-ordered busing for racial balance really is: it typically produces, Bell says, such THE AMERICAN SPECTATOR NOVEMBER 1988 47 The chief qualification for such positions, this illustrates, is "a white face, preferably from an upper-class background...

...It puts forth the basic Marxist proposition that there is a "much-needed transformation of an industrial nation's social structure that, as presently organized, espouses liberty for the individual but prospers through the systematic exploitation of the lower classes'!—to which Bell adds, characteristically, "particularly those who are not white...

...The promise of Brown was, to the contrary, that racial groupings would thereafter be legally irrelevant, that the law would no longer know any individual's race...

...Perhaps a guarantee of four or five seats for blacks would be sufficient to reduce Marshall's bitterness at the treatment he has received.benefits as increased teacher salaries, the purchasing of schoolbuses, new school construction, increased availability of federal and state funds, additional tax revenues for school boards, and annexations...

...AND WE ARE NOT SAVED: THE ELUSIVE QUEST FOR RACIAL JUSTICE Derrick Bell/Basic Books/$19.95 Lino A. Graglia Like his Marxist Critical Legal 1.-./ Studies colleagues on the faculty of Harvard Law School—which he nonetheless criticizes as too conservative and eager to avoid controversy—Derrick Bell believes that "America's continuing commitment to white domination" makes it an "alltoo-real world of racial oppression...

...The final two Chronicles tell of blacks who become extraordinarily industrious, studious, and law-abiding—indeed, "out-achieving whites in every area save sports and entertainment"--by studying the history of slavery in certain scrolls and swallowing certain magic stones...

...Everyone knows oppression is oppression...

...The second Chronicle is devoted to showing that civil rights victories by blacks have actually been of greater benefit to whites...

...Another Chronicle explains that "affirmative action" in law school faculty hiring is actually a scheme not to expand but to limit opportunities for blacks...

...Suffering and injustices [are] being visited by the system on the exploited groups," but "exploited working-class whites—lulled by a surfeit of sports, sex, and patriotic fervor—readily acquiesce in so oppressive a system...

...This is nothing other than the preaching of race hatred...

...It is only fair to note, however, that my view of Bell's book is not unanimously held among academic leaders...

...To "explain just how disillusioned some of us have become," Bell quotes a speech by Supreme Court Justice Thurgood Marshall, "our best-known legal advocate," at Howard University, his alma mater, in which he spoke "frankly and bitterly of what he and his fellow civil rights lawyers had failed to achieve...

...Bell's argument enables him to avoid considering any cause of the problems of the black underclass other than past or present racial discrimination...

...The need, therefore, is for a "restructured society" and changed "structure of government...

...America's "white society," he writes, is a society of "moral corruption" where "whites as well as blacks are being exploited, deceived, and betrayed by those in power...

...W. E. B. DuBois pointed out, only because of "the world pressure of communism...

...The "racial equality before the law" promised by Brown has been realized by effective constitutional and statutory prohibitions of discrimination against blacks by government, state or federal, or by government-supported institutions...

...To deal with this situation, Geneva suggests convincing "the upper classes and their representatives that their selfish interests can best be protected by an even greater-than-usual lack of concern for the plight of the working classes and the poor...

...A hypothetical black, who with the credentials Bell gives him would have been the best candidate in the country for a faculty position, was rejected by the dean of "one of the oldest and finest law schools in the country" because of the need to avoid a "predominantly minority faculty," even though the faculty would actually have been only 25 percent minority...

...The rest of the book is more of 1 the same...

...Marshall responds, "For what...

...E ach of Bell's ten chapters begins with a "Chronicle" related by "Geneva Crenshaw," a fictional formerlawyer-colleague of Bell's in NAACP Legal Defense Fund civil rights litigation and a woman of "impressive intelligence," "stunning looks," and "keen wit...

...Bell has "no doubt" that "reforms resulting from civil rights litigation invariably promote the interests of the white majority," which apparently somehow takes the edge off the accomplishment...

...These appraisals of Bells book by persons of such eminence and qualification clearly establish either that I am entirely mistaken in considering it a piece of mindless ranting or that Bell's view of America is so common and so entrenched in our institutions of higher education as to raise the question whether the continuation of such institutions is in the national interest...

...But it does not appear that the problems of the black underclass today are in any direct sense primarily due to past or present racial oppression...

...Bell is pleading for a regime, different from if not the opposite of the one promised by Brown, in which the law must know each individual's race and in which almost nothing can be done by government except on the basis of race...

...Looked at simply as a matter of social policy, the only question is: What, if anything, can usefully be done to improve that condition...

...Even the Brown decision was possible, Dr...

...Small wonder, then, that Bell has little enthusiasm for expenditures for national defense...

...To repeat: there is no doubt that the situation of the black underclass should be a matter of high national priority...

...But it turns out to be just another example of white mistreatment of blacks...

...After each Chronicle, Geneva and Bell enter into a discussion...

...Paul Brest, Dean of the Stanford Law School, believes that And We Are Not Saved "makes an illuminating and gripping contribution to legal scholarship...

...Economics, it seems safe to say, is not Bell's strong suit...