The Living Memory of Derrick Bell

In a 1990 photograph, Derrick Bell, the first tenured Black professor at Harvard Law School, speaks into six microphones as a crowd of students rally behind him. Some students stare down the camera with their fists thrust in the air, while others raise signs. In the front row, five students clutch a banner that reads, “Harvard Law School: On Strike for Diversity.”

The photograph was taken during Bell’s controversial announcement that he would be taking a “leave of conscience,” refusing to return until HLS hired a Black, female, tenured professor. Bell’s move attracted conflicting national media attention, including explicit and implicit criticism — the photograph appeared in a New York Times article with the racist headline “The Charms of a Devoutly Angry Man."

“I cannot continue to urge students to take risks for what they believe if I do not practice my own precepts,” Bell said in his announcement. “I hope students will be moved by my example to continue their efforts to gain, sooner rather than later, the diversity in our faculty that is now so positive a force in our student body.”

At the time of Bell’s voluntary leave of absence, a quarter of HLS students were people of color and nearly 40 percent were female. However, the faculty did not reflect the makeup of the student body. There were only five tenured female professors and three tenured Black professors. There were no Black female tenured professors.

Bell began the second stage of his career at Harvard, after working on hundreds of cases for the National Association for the Advancement of Colored People. During his time at the University, he wrote some of his most powerful scholarship, including “Race, Racism and American Law,” a text still referenced in law schools today.

Far before his leave from Harvard, Bell created waves demanding more diversity in the HLS faculty body. For instance, Bell organized a five-day protest in 1986 to challenge HLS’ denial of tenure to two professors who contributed to critical race theory.

Despite Bell’s advocacy, HLS largely neglected his cause. Associate Dean of HLS Louis Kaplow expressed no urgency to diversify HLS even as Bell threatened to leave the University.

“Even though we’re a fairly large place, our positions are often permanent positions that may last 40 years, given the nature of tenure,” Kaplow said. “As a result, when we’re going to hire someone essentially for a lifetime these decisions are made carefully, cautiously and gradually.”

Bell’s leave was planned to be two years long. But ultimately, he never returned to HLS. In the spring of 1992, Bell returned to Harvard and, seeing no progress upon his return, appealed to the HLS Board of Overseers to extend his leave of absence.

Professor Frank Michelman, who still teaches at HLS, represented Bell in his case. Michelman argued that Bell’s decision to leave was in line with the President’s “concerted effort to diversify the faculties of Harvard University,” Michelman recalls. HLS denied his appeal.

Instead of returning to Harvard, Bell chose to continue teaching as a visiting professor at NYU, where he remained for the rest of his career.

Shortly after denying his appeal, in the winter of 1992, HLS actually added four white male professors to its faculty, a move that some viewed as a flippant response to the protests.

Though Bell never returned to HLS, his protest inspired student movements to push for faculty diversity. After Bell’s leave in 1990, students from six minority student organizations and the Women’s Law Association formed the Coalition for Civil Rights, which held a strike day during which students attended teach-ins on faculty diversity instead of their classes. As tensions mounted throughout the year, the Coalition sued HLS in November, alleging that the school’s hiring practices violated state anti-discrimination laws.

Although the Coalition gained some surprising early victories, the Massachusetts Supreme Court ultimately dismissed the case, reasoning that its claim that a lack of diverse faculty impedes their education could “hardly amount to a denial of the same contractual benefits enjoyed by white male students.”

In recent years, Bell’s work has received national attention yet again for his contributions to critical race theory. Much of the attention has been negative, particularly in conservative circles. According to an August 2021 study by Media Matters, Fox News mentioned “critical race theory” 1,300 times in less than four months. Teaching critical race theory has even been banned in some secondary schools.

Still, Bell’s ideas on race and law — and the body of literature he contributed to — persevere.

Michelman attributes Bell as a contributor to a body of work which influenced his own thinking on affirmative action, which he found “puzzling” at first. “My views shifted over time, in ways that scholarship, like Derrick Bell’s, might have helped to cause,” he says.

In the decades since Bell left HLS, the faculty body has become slightly more diverse. As of 2018, 67 percent of tenure-track professors are female, though only 11 percent percent of tenured faculty are underrepresented minorities.

Years pass, and parts of the story remain the same. Just like the students 0f Bell’s time, current students continue to push HLS to appoint a more diverse faculty body.