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61 Calif. L. Rev. 165 (1973)
Racism in American Courts: Cause for Black Disruption or Despair

handle is hein.journals/calr61 and id is 189 raw text is: Racism In American Courts: Cause For Black Disruption Or Despair? Derrick A. Bell, Jr.* Beat and cuff the slave, keep him hungiy and spiritless, and he will follow the chain of his master like a dog, but feed and clothe him well, work him moderately and surround him with physical comfort, and dreams of freedom will intrude. . . . You may hurl a man so low beneath the level of his kind, that he loses all just ideas of his natural position, but elevate him a little, and the clear conception of rights rises to life and power, and leads him onward. Frederick Douglass The insidious destruction of the human spirit is the essence of both slavery and the worst aspects of contemporary white racism.' Perhaps unconsciously, those who have major authority in the legal process tend to underplay the seriousness of racism in the judicial sys- tem, acknowledging the need for more progress, while extolling the elimination of overt segregation in the courts. These attitudes show * Professor of Law, Harvard Law School. A.B., Duquesne University, 1952; L.L.B. University of Pittsburgh, 1957. This Article is based on a paper prepared for the Special Committee on Courtroom Conduct of the Association of the Bar of the City of New York. I wish to acknowledge the many hours of research performed by Robert Graham, J.D. Harvard, 1972. 1. F. DOUGLASS, LIFE AND TIMES OF FREDERICK DOUGLASS 150 (Collier ed. 1962). 2. The United States Commission on Civil Rights has defined racism as: any attitude, action, or institutional structure which subordinates a person or group be- cause of his or their color. A. DowNs, RACISM IN AMERICA AND How TO COMBAT IT, 5-6 (U.S. Comm'n on Civil Rights, 1970). In defining this highly provocative term, Mr. Downs distinguishes between: overt racism, the use of color per se (or other visi- ble characteristics related to color) as a subordinating factor, and institutional sub- ordination, placing or keeping persons in a position or status of inferiority by means of attitudes, actions, or institutional structures which do not use color itself as the sub- ordinating mechanism, but instead use other mechanisms indirectly related to color. Implicit in any definition of racism is the assumption that the majority group has the political and economic dominance necessary to translate its racial biases and pre- judices into racial discrimination. See LeMelle, Forward to R. BuRKEY, RACIAL DIs- CRIMINATION AND PUBLIC POLICY IN THE UNITED STATES at x (1971). While racist poli- cies facilitate exploitation of the minority group, their crucial impact comes from the denial by the majority group of the minority's basic humanity, and over time, results in the majority's absolute inability (often unconscious) to perceive members of the mi- nority as humans no different from themselves. Unhappily, this notion has a built-in potential for self-fulfillment. As Frederick Douglass warned, You may hurl a man so low beneath the level of his kind, that he loses all just ideas of his natural position.

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