BLSA is right, and it’s only beginning


Our whole community has been shaken by the events described in the Black Students’ Law Association’s open letter of last week. However, I found the response to that letter even more distressing. I have heard many people suggest that BLSA is overreacting, that their demands are unreasonable, and that the proper administrative response is to sanction some or all of the offenders and move on. After all, they reason, these are “rare and exceptional incidents.”

The fact is that these incidents are not isolated occurrences, but indicative of deep institutional failures to confront issues of race. Professor Rosenberg’s comments about “the blacks” are disturbing enough, but the silences every student encounters during their law school education say much more about our university and its priorities. For many students, felon disenfranchisement, racial profiling, high incarceration rates for black males, draconian sentencing disparities between cocaine (which more affluent people use) and crack (which less affluent people use), discriminatory application of the death penalty, and low standards for indigent defense counsel are among the most pressing issues in criminal law, but they rarely get more than a day’s throwaway discussion in the first year class on that subject, if indeed they come up at all. Likewise in constitutional law, the role of the Court’s state action jurisprudence in perpetuating “private” patterns of discrimination and racial apartheid does not seem to merit much attention. Countless other examples exist.

Harvard Law School is part of a University that for years has refused to pay all of its workers a living wage. Harvard’s poorest workers, many of them black and Latino, have been eating at soup kitchens and working 80 hours a week, rarely seeing their families. Somehow, Northeastern, Tufts, MIT and most of the other Boston schools have managed to do what Harvard would not, even though none of them has a fraction of Harvard’s endowment.

The faculty at Harvard is largely white and male, even more so now that President Larry Summers has precipitated the departure of Cornel West and K. Anthony Appiah, two of our nation’s most prominent black scholars. Apparently, President Summers thought that West’s attempts to appeal to a broader audience, and to address what he considered to be the fundamental problems confronting all black people, did not constitute “good scholarship.”

Of course, many of the complaints about Harvard’s failures extend beyond race to issues of ethnicity, religion, gender, sexual orientation and poverty. As Professors Guinier and Torres suggest in their new book, “The Miner’s Canary,” looking closely at the injustices suffered by the most marginalized members of communities of color reveals the deep structures of inequality that impact many people outside those communities. Employment discrimination affects not only people of color, but also women, the disabled, homosexuals, and members of many other groups.

While the poverty that U.S. policies have created falls especially hard on communities of color, over half the people living in poverty in this country are white. The disenfranchisement of communities of color reveals the power structures that underlie our winner-take-all system of “democratic” representation. If we start by addressing issues of race and building a movement with the people directly affected by those issues, we can ultimately face the larger issues of hierarchy and injustice in our community and our nation.

One reason it has been so difficult to start the sort of discussion and movement Professors Guinier and Torres describe is that, as in so many other arenas, conservatives have cowed liberals into adopting their rhetoric on race. “Colorblindness” is the order of the day. In particular, modern political discourse on race erroneously assumes that any mention of issues of race implies widespread, active race-hatred. While there is plenty of racial hatred in this country, much of the racial inequality here results more from the unconscious stereotypes and assumptions that many well-intentioned people have than from active pursuit of racial inequality.

I agree that it would be nice to live in a society where people were treated the same no matter what they looked like, but we do not live in such a society. To the extent we pretend race no longer matters, we ignore and perpetuate the continuing legacies of slavery, Jim Crow, and the racial injustice that has long characterized American political, economic, and social institutions. We also silence those who would seek to end those legacies.

I hope that the administration will take BLSA’s demands seriously, and develop permanent institutional mechanisms to confront both harassment and the deeper issues of race, gender, ethnicity, religion, gender, sexual orientation and poverty, of which harassment is a symptom. To the extent HLS fails to fundamentally reexamine its institutions, it ensures that the leaders it sends out into the world, and the governing institutions that they control, will repeat that failure.