by Peter Slevin
For many black students, the hill seemed yet steeper. Robert Wilkins would go on to become president of Harvard’s Black Law Students Association and a judge on the high-profile U.S. Court of Appeals for the D.C. Circuit. But as he finished his undergraduate chemical engineering degree at a small school in Terre Haute, Indiana, Harvard seemed a mirage. “I almost didn’t apply,” he said. “And if I applied, I probably couldn’t afford it. And if I could afford it, I probably wouldn’t like it. The Paper Chase was all I knew.” Wilkins described himself as a “small-town kid who didn’t really know that much about the world.” But he did apply, and he got in. In spring 1986, the Black Law Students Association (BLSA) invited him to its annual gathering of students past, present, and future. He remembers being broke and unable to afford the trip until a visiting fraternity brother said he could drive him as far as Philadelphia, where he could catch a train to Cambridge. Wilkins felt welcomed that weekend. The students he met, including Michelle—“You can’t really forget her because she’s a tall, striking woman”—impressed him not only as smart and substantive, but caring.
The discovery of community and common cause was unexpected, considering the school’s cutthroat reputation. Yet the attitude, a kind of constructive embrace, would shape many of the black students who enrolled at Harvard in the mid-1980s, particularly those who became active in campus efforts to diversify the faculty and curriculum. “The black community at Harvard was really sustaining to me,” said Verna Williams, a close friend of Michelle’s who grew up in Washington, D.C., and preceded Wilkins as BLSA president. Williams moved uncertainly into one of the world’s great crossroads of the elite, doubting that she would measure up, yet she discovered people with similar experiences “who were really, really smart and really cool—the most amazing people I had ever met.” Harvard struck her as a better fit than Yale, particularly because of her interests in race and social justice. True, she found the whiteness and maleness of the Harvard faculty “stunning.” But she felt encouraged by the recent recruitment of black professors, and the black students, numbering 170 among the 1,796 students on campus in 1985, struck her as “more active and more dynamic” than their counterparts in New Haven. “We had a critical mass of black folks,” she said. “Why would you go to Yale?”
It was certainly a contrast from twenty years earlier, when barely one percent of U.S. law students were black, and one-third of those attended predominantly African American schools. Being at Harvard with smart, committed black people, Williams said, was “a lifesaver for me. It contributed to the formation of my identity as a black professional, as a black woman. Feeling like I have this opportunity, I have this incredible opportunity, and it’s not just about me. It wasn’t just about me when I got here, and it can’t be just about me when I get out of here.” Williams remembered bull sessions in the cluttered basement offices of the Black Law Students Association, where friends including Michelle discussed conundrums of obligation and purpose. “ ‘What are you going to do for black folks when we get out of here?’ We did think a lot about that, about what it means to be a lawyer, what it means to be a black lawyer.” Such questions became central to Michelle’s thinking at Harvard and beyond, connecting the lessons of the South Side with her experiences at Princeton and the looming decisions about where to aim her career.
The 575 1L students of the Harvard Law School class of 1988 split into sections to move through their introductory year of torts, contracts, and constitutional law. The required classes tended to be less than scintillating, with plenty of rote learning in the mix. It was law school, after all, and it was all-consuming. Michelle had been known for her discipline at Princeton, so self-controlled that she imposed a personal ban on all-nighters. At Harvard, too, she stayed focused and, according to friend Jocelyn Frye, avoided being “caught up in all that goes with being at an elite law school. She was a regular person. We had fun.” To help pay the bills, she held a campus job and added to her Princeton debt by taking out loans. One year, she worked as a research assistant for Randall Kennedy, the law professor brother of Angela, her college roommate. With her friends, she sat in front of a big television set in the BLSA office on Thursday nights to watch L.A. Law and The Cosby Show, the most popular show on television, featuring the Huxtables, an upper-middle-class black family headed by Cliff, a gregarious obstetrician, and Clair, a smart and plainspoken lawyer. Their oldest daughter, Sondra, went to Princeton and planned to be a lawyer, but veered in another direction, deciding to open a wilderness store, instead. When she announced that she had changed her mind, her mother erupted. “Change it back!” she demanded. “After all that money we spent sending you to Princeton? Sondra, you owe us $79,648.22 and I want my money now!” The line got a big laugh, but Clair was also making a deeper point about contributing to society, according to Phylicia Rashad, the actress who played her. “Parents know their children,” Rashad said, “and Clair wasn’t telling her daughter to become a lawyer just to be a lawyer—but don’t cop out.”
As the Harvard students bumped along with varying degrees of competence and sanity, Williams noticed that her classmate seemed unusually serious and self-possessed, but not in a preening, call-on-me way. “She was not the person in class who was constantly raising her hand, showing she’s smarter than everyone,” Williams said. “But you know she’s got it going on. She’s got the quiet air of confidence—and it’s confidence, not arrogance.” Jocelyn Frye saw her in similar terms, describing Michelle as “down-to-earth, reasonable, practical, solution-oriented.” She explained, “The thing about law school is that you get caught up in the theory so much. She has always been a person who’s thinking about the bottom line—here’s what makes sense, here are the practical results we can and should be trying to achieve.”
Toward the end of every Harvard student’s first year came the moot court competition, the first exercise where the students could stand up in a courtroom setting and act the part of the lawyers they would soon become. When it came time to choose partners, Williams made a beeline for Michelle. Her calculation was simple: “She’s really cool and really smart, I’d better ask her before someone else does.” It was a criminal case. The details escaped her memory, but Williams recalled that as they set to work, there was an easy way and a harder way to proceed. They chose the harder way: an evidentiary hearing to prevent the prosecution from entering a weapon into evidence. Williams was struck again by Michelle’s cool forcefulness. “Damn, she is good,” she thought to herself, watching as Michelle pushed the envelope and drew objections from opposing counsel. “She is saying something that she knows is objectionable, and she’s just going to do it. The kind of question, ‘How long have you been beating your wife?’ Look at her, she knows she’s not supposed to be doing that. She’s so confident.”
They lost the motion to suppress the evidence, but their friendship blossomed. Williams was the more overtly vocal and political, while Michelle generally preferred roles out of the spotlight—helping indigent clients of the school’s legal aid bureau, adding heft to BLSA’s annual conference, and doing some editing for a student-run law journal that aspired to be a vehicle and a voice for African American legal minds. “Michelle always, everything she wrote, the things that she was involved in, the things that she thought about, were in effect reflections on race and gender,” said Charles Ogletree, a high-profile Harvard professor who mentored her. “And how she had to keep the doors open for women and men going forward.”
IN THE SPRING of 1986, Michelle’s first year in Cambridge, she volunteered as an editor for the Harvard BlackLetter Journal, which had been created a few years earlier on the largely white campus to address questions of race and rights from a black perspective. This was the journal’s third issue and the editors presented a discussion of “The Civil Rights Chronicles,” an allegorical essay by African American law professor Derrick Bell published in the November 1985 issue of the Harvard Law Review. The article ran as The Foreward, the review’s annual disquisition
on the previous Supreme Court term. In selecting Bell to write the piece, student editors Elena Kagan, Carol Steiker, and William B. Forbush III signalled the prominence of discussions about race and the law. “All the talk and the debates were shifting to race,” said Kagan, a 1986 graduate who would become dean of the law school and a Supreme Court justice.
The BlackLetter Journal had gotten its start in the late 1970s as a blend of essays, poetry, news, and interviews. “A voice for black expression,” later editors would say. In 1984, students relaunched the journal as a race-conscious alternative to the lofty law review, which had never had a black president until Barack was elected to the position in 1990. The goal was to produce “scholarly presentations of legal issues of interest to blacks.… without some of the stylistic constraints of other law reviews.” The editors were hungry to squeeze into the conversation, but the journal was underfunded, understaffed, and decidedly outside the mainstream. Entirely different, in other words, from the hypercompetitive law review, which was as much a part of Harvard’s self-image as the elegant law library, with its 1.4 million volumes and the inscription over the main entrance that read Non sub homine sed sub deo et lege, or “Not under man, but under God and law.”
For African Americans, the law review had long proved difficult to navigate, even from the inside. Kenneth Mack, a Harvard student in the late 1980s and later a faculty member, called his time on the law review “the most race-conscious experience of my life.” He said prejudices crossed political and ideological lines. “Many of the white editors were, consciously or unconsciously, distrustful of the intellectual capacities of African-American editors or authors. Simply being taken seriously as an intellectual was often an uphill battle.” Bradford Berenson, politically conservative and white, said, “I’ve worked at the Supreme Court. I’ve worked at the White House. I’ve been in Washington now for almost 20 years. And the bitterest politics I’ve ever seen, in terms of it getting personal and nasty, was on the Harvard Law Review.”
In the Spring 1986 issue of the BlackLetter Journal, nine of the twelve articles directly responded to Bell’s “Chronicles.” Two others dealt with affirmative action, including one by Harvard professor Elizabeth Bartholet entitled “The Radical Nature of the Reagan Administration’s Assault on Affirmative Action.” The staff dedicated the issue to Bell’s fictional protagonist and muse, Geneva Crenshaw, a confident black lawyer in the 1960s whose “pride in her color and her race,” Bell wrote, “flourished at a time when middle class ‘Negroes’ (as we then insisted on being called) were ambivalent about both.” Crenshaw saw herself continuing the work of nineteenth-century black abolitionists Sojourner Truth and Harriet Tubman, crediting them with an inner vision that allowed them to “defy and transcend the limits that the world tried to impose on their lives.” In Bell’s telling, Crenshaw, recently hired as a law professor at Howard University, is driving to a voter registration meeting during the Mississippi Freedom Summer of 1964 when a white driver runs her off the road. She survives in a catatonic state, emerging twenty years later to survey American race relations and conclude, “We have made progress in everything, yet nothing has changed.” She says, “It is incredible that our people’s faith could have brought them so much they sought in the law and left them with so little they need in life.”
Despite a string of victories for African Americans in courthouses and statehouses across the land, Crenshaw is perplexed that the United States has made so little progress on racial fairness. “What is impossible is making the public understand that blacks continue to endure subordinate status, despite the legal advances of the last two decades,” Crenshaw laments. “Blacks demand nothing more than their rightful share of opportunities long available to whites. But whites believe that blacks are demanding privileges they have not earned to remedy injustices they have not suffered.”
Charismatic and soft-spoken, Bell was an engaging provocateur and high-profile protests against Harvard’s disappointing minority-hiring practices put him at the center of the school’s racial politics. Prone to wage his fights through sit-ins and threats to resign, he challenged the persistence of racial bias, questioning not just Ivy League demographics, but the very role of laws and lawyers in building a more equitable society. He believed that racism was pervasive in the American establishment and could not be sliced out with a scalpel or a lawsuit. As a principal proponent of critical race theory, he argued that racism was more than simply a random array of bigots who said and did bigoted things. Rather, he posited racism as an attitude and an affliction embedded in laws, legal institutions, and relationships—“a legal system which disempowers people of color.” He considered it the product of a history of black subjugation so distant in the minds of most white people that attempts to shift the balance were dismissed as a form of racism in reverse. Bans on overt discrimination allowed some talented African Americans—“the spotlighted few,” he labeled them; W. E. B. Du Bois called them “the talented tenth”—to rise and prosper. Yet, even as they rose, the vast majority of black people remained hostage to stubbornly enduring patterns of inequality.
Bell cited the work of William Julius Wilson, the prominent Chicago sociologist who wrote in The Declining Significance of Race that “the patterns of racial oppression in the past created the huge black underclass, as the accumulation of disadvantages were passed on from generation to generation.” In Bell’s view resistance was essential. He believed significant progress, if it ever came, would emerge from the ground up, assisted by a recognition by white people that black advancement served their own interests. “History gets made through confrontation. Nothing gets done without pushing,” Bell said during one of his many standoffs with the Harvard administration. Harvard professor Robert Clark cracked in 1987, “This is a university, not a lunch counter in the Deep South.” Bell’s retort: “I feel that Harvard is long overdue for change, just like the South was.”
When it came to the Harvard curriculum, Bell’s thinking led him to develop a set of positions about faculty diversity that went well beyond the assertion that women and African Americans deserved to join the faculty as a matter of equitable hiring practice. In an argument that Michelle would advance in a 1988 essay for incoming students, Bell said that women and faculty of color enhance university teaching because of who they are, how they teach, and what experiences they carry into classrooms and corridors. “Even liberal white scholars have to imagine oppression, and have to imagine they are not oppressors,” Bell said upon the publication of We Are Not Saved, his book based on the “Chronicles.” “Black people have stories and experiences that provide the basis not only for their lives but for their scholarship.”
As a former NAACP attorney who did not attend a prestigious law school or clerk for a federal judge, Bell did not forget that he owed his own job to students who pressed Harvard to hire a tenured black professor during the civil rights ferment of the late 1960s. “You’ll be the first, but not the last,” Harvard president Derek Bok told him when offering him a spot on the faculty. That proved true, but barely. In 1967, Harvard Law School had fifty-three tenured faculty, all of them white men. Twenty years later, when Michelle was there, the school had sixty-one tenured faculty, including five white women, but still only two black men and not a single woman of color. In other words, 96 percent of the faculty at one of the country’s most elite and ostensibly progressive law schools was white.
THE CAMPUS AIR may have been rarefied, but developments at Harvard reflected the dawning national realization that so much and yet so little had changed in matters of race and opportunity. More than thirty years after Brown v. Board of Education, African Americans were winning elections and stepping into academic and corporate positions in greater numbers. But the decade in race relations was largely defined by the presidency of Ronald Reagan, who launched his 1980 campaign with an endorsement of states’ rights in Neshoba County, Mississippi, where three civil rights workers were murdered in 1964. He peppered his public speeches with e
xaggerated or apocryphal stories about Cadillac-driving welfare queens and “young bucks” who bought T-bone steaks with food stamps. Reagan opposed affirmative action programs, a product of the Civil Rights Act of 1964, as a fount of unfair advantage. He curtailed the enforcement work of the Justice Department’s civil rights division and tried to defund the Legal Services Corporation. To run the Equal Employment Opportunity Commission, he appointed Clarence Thomas, a future Supreme Court justice and unabashed foe of affirmative action.
The political debate between Reagan and his antagonists carried over to the law school. In 1987, as the country celebrated the two-hundredth anniversary of the Constitution, Harvard and the National Conference of Black Lawyers hosted a scholarly conference, “The Constitution and Race: A Critical Perspective.” The gathering provided “time for re-evaluation in the midst of the pomp and circumstance.” Bell was the keynote speaker, and black Harvard professors Charles Ogletree and David Wilkins led workshops. For all of the glorification of “original intent” by conservatives—this was the year of Reagan’s highly contentious nomination of Robert Bork to the Supreme Court, an event that drew campus protests—many Harvard students and faculty thought “original sin” was more like it. After all, the men who built the framework of American democracy wrote a contradiction into the nation’s founding documents when they promised liberty but permitted slavery. They did not endorse voting rights for women, black people, or men without property. Indeed, many of the founders owned slaves.
On campus, students and instructors not only discussed the causes and costs of three centuries of racial inequality, but asked what could change and how. Was it appropriate to promote diversity as a tool of learning? Was affirmative action a legitimate approach? “We were trying to search for the meaning of all that. We were writing about that and talking about it,” Robert Wilkins said. In the fiery debate over affirmative action, critics not infrequently questioned the abilities of African American students, who were outnumbered nine to one. “The absence of minorities feeds the perception that blacks are not qualified to be here … as students, as professors, and as future lawyers,” Verna Williams said at the time. “The idea that we’re here as a twist of fate is totally false, when in fact to be here we’ve had to sustain a great deal of stress, along with the abuse that we experience on a daily basis as African Americans.” Williams’s comments appeared in a profile written for a special report of the Black Law Students Association’s Memo, a newsletter designed to share the wisdom of the class of 1988 with newer students. That year seemed “as good a time as there has ever been to recognize, celebrate and preserve the achievements of black students at Harvard Law School,” according to an editor’s note. Black students in the class led more Harvard organizations than ever before. Among them were the Women’s Law Journal, the Harvard Journal on Legislation, and the Civil Rights and Civil Liberties Law Review, as well as the Legal Aid Bureau, Students for Public Interest Law, and even the Harvard Law School Republicans. The longest essay in the fifty-page newsletter was written by Michelle, who devoted more than three thousand words to an appeal for greater faculty diversity.
