In the spirit of fostering a community-wide conversation, we wanted to respond to Randall Kennedy’s provocative op-ed.  

Although Randy is unperturbed by the black tape recently placed over his photograph, he is quite concerned about something else: the potentially destructive effects of taking the outrage and demands of some students at Harvard Law School – and at universities around the country – too seriously.

These students perceive racism not only on the walls of Harvard Law School but also in its history, culture, curriculum, and personnel. Having asked some of those students to explain “with as much particularity as possible” the sources of their discontent, Randy is largely unconvinced. Some of their “complaints” may have “a ring of validity,” but others “are dubious.” True, their “accusations warrant close examination and may well justify further reforms,” but his primary concern is with the intensity and unintended consequences of their grievances. On the pages of The New York Times, he cautions those youngsters to avoid “exaggerat[ing] the scope of the racism” or “minimizing their own strength and the victories that they and their forebears have already achieved.”

Randy suggests that the students are being childishly hyperbolic – losing sight of the big picture on which he and other seasoned observers are focused. But couldn’t the gap between Randy’s reaction and the protesters’ complaints at Harvard Law School and around the country have another source? Is the problem one of oversensitivity or insensitivity? Exaggerated racism or understated racism?

Like many others in the HLS community, we have been engaging with students on these topics extensively for some years. In those discussions, we have noted two very different, but often overlapping and confused, definitions of “racism” in play. We suspect that these profoundly different definitions are at the core of the disagreement between student protesters and the administrations and faculties they are protesting.

The version that is most common and that seems to animate Randy’s op-ed assumes a force that is conspicuous and malevolent: Bull Connor, George Wallace, the KKK, and so on. Racism of that sort is no longer of us or from us. It is foreign – an alien from another time. It is pathology, sickness, and a deviation from the norm. And it is ugly and despised. Like a bloodthirsty dragon emerging from its lair, we would eagerly join forces to chase it down and slay it. In fact, that has been the project of previous generations, to which this group of students should be grateful and deferential. That is why such explicit racism is relatively rare these days and why we need to be painstaking not to mislabel some behavior “racist,” lest some innocent be hurt or some values be compromised.

The student protestors understand that version of racism, but they (and, to be clear, we) are focused on a second, very different version. This type of racism can be hard to see and is often easy to dismiss. It is malleable and insidious. It’s in the architecture of expectations, the ranking of authorities, the sway of circumstance, the nudge of defaults, and the grammar of culture. It hides behind flowery truisms and elaborate self-deceptions. It’s in the norms, customs, precedents, and incentive structures of institutions, jobs, and roles. It’s in the decorative euphemisms for revenue sources, the devilish details of doctrine, the artful camouflaging of motives, the clever rationalization of outcomes, and the river of neural synapses that link some concepts more definitively than others. It’s in the hard-to-see privileging of certain ideas – buffered by unexamined baselines, illusions of neutrality, and elastic categorical boundaries. It’s in the body language of dominance and submission, the harness of manners and professionalism, the limits of suitable conversation topics, and the hierarchy of acceptable emotional reactions. It’s in the traditions that make us “us” (and them “them”) and the selective memory and beneficence those traditions memorialize. It resides in the familiar. It is of us, around us, and within us. This version of racism is in the epistemic, existential, and relational systems that constitute us.

That systems-based understanding of “racism” is therefore deeply unsettling. It sees threads of a translucent web moving within the interstices of structures, rituals, and ideologies to maintain racial oppression and advantage – much of it bolstered, girded, and legitimated by law and legal theory. It connects Laquan MacDonald’s horrible killing to criminal law and housing policies. It connects Freddie Gray’s grisly death to environmental law and local government law. And it connects Laquan MacDonald to Freddie Gray and both to many other victims of police violence who have not become household names. It connects anger at Mizzou and Yale with anger on our campus. It connects the Royall crest to the Confederate flag. It connects Derrick Bell to Kim Crenshaw and Derek Bok to Martha Minow. It connects Harvard Law School and our legal system to the broken world that some students observe in their lives and others read about on the very pages in which Harvard Law faculty admonish students to count their blessings and tread cautiously.  

For the same reasons, it is possible to “see” connections that do not exist or to overstate the significance of some factor that is connected. But the difficulty in identifying the precise causes of systemic racism does not necessarily undermine the conclusion that systemic racism is at work. In the context of our country’s history of racism and of ongoing racial disparities in everything from wealth and education to health and incarceration, our presumption should be to listen carefully to students (and scholars) claiming to identify the sources of systemic racism and to join the effort to understand and alter the confluence of causes. 

There are, then, two very different understandings of what “racism” is. The first focuses on racial animus, and the second, on racial systems. The first type of racism leaps out, while the second fades into the background. The first places blame on the racist individual. The second places responsibility on everyone, and particularly on those who benefit from or control the systems themselves. The law has grown responsive to the first, but ignores and obscures the second.

Randy is not alarmed by the defacement of his photograph, because “the identity and motives of the person or people behind the taping have not been determined.”  Absent clear evidence of racial animus, there is no racism, by his definition.

When Randy argues that “[r]acism and its kindred pathologies are already big foes,” he again misses the point. Yes, animus-based racism may be strongly opposed, but systemic racism is formidable precisely because it is interwoven in who we are and defended even by those who are sometimes its victims.

When Randy highlights the “brightly colored stickers expressing respect and appreciation, and rejecting bigotry” on those same photos, he reveals the gulf between his definition and theirs. Post-it notes, according to Randy, constitute proof that ours is not a racist space, at least not any more racist than other “major institutions in America.”  Yes, those “brightly colored stickers” were certainly soothing and reassuring. It was heartwarming to be reminded of the many people in our community who were upset and willing to help slay the dragon of racial animus. Many felt, as we did, that the stickers were a beautiful moment of solidarity in an otherwise ugly day. Those stickers do not, however, suggest an absence of systemic racism and do not constitute a systemic response.  They were a fleeting effort that could represent the height of collective attention given to the issue of racism in an institution that has, with some important exceptions, been acquiescent in the face of racial inequalities for most of its two hundred years.

From the students’ perspective, Randy is not offering sage counsel to like-minded youth on how to challenge systemic racism more effectively. He is redefining racism and trivializing the experience, insights, and courage of the students who perceive something that he doesn’t. They are saying “this is real, and it matters,” and he and many others are saying “um, perhaps so, but you may be making it up.”  These students are struggling to teach their teachers and their classmates, who require more proof but are not moved to search for it themselves.

Why is that their task? Why are not the profound and obvious racial disparities, connected to systemically racist laws and policies and linked to historical oppression and cultural stereotypes, not enough to shift the burden?

Randy, like many in our community, demands particulars – but those particulars are subject to the defense of individualized exceptions and the motivated exploitation of inevitable ambiguities. Unless students can decisively establish that the photograph defacer was a white member of our community motivated “to convey anti-black contempt or hatred for the African-American professors,” and that those actions were “characteristic,” then we need to “calibrate carefully” and not become too agitated about race and racism at Harvard Law School or elsewhere.

Ambiguity, in this way, is deployed to maintain the status quo and insulate our institutions from any sense of responsibility. “Beyond a reasonable doubt” makes sense for the courtroom, but why shouldn’t our own default be to interrogate our institution and the norms and conventional practices within it?

Students point out that the topic of race and racial inequalities (among other topics) are largely omitted from the basic curriculum. Why is that the norm?  It is true, as Randy emphasizes, that an individual professor’s “decision . . . to focus on a seemingly dry, technical issue rather than . . . race might well reflect a justifiable pedagogical strategy,” but it is also true that the racism baked into law has long been obscured by the sweet frosting of convention and technicalities.  What have those “justifiable pedagogical strategies” done to stem the tide of mass incarceration, to name just one salient manifestation of our broken legal system? Is there no connection? Do we have no responsibility to consider the consequences of our legal system? Does it matter who is teaching the law, and what counts as a “justifiable pedagogical strategy?” Why is there no critical race theorist on our faculty? Why not several?  

Students concerned about systemic racism face a quandary. In the absence of explicit animus their claims about racism go unheard because systemic racism is unseen by those in power, but when they point to examples of explicit racism, such as defacement of photos, hoping to use them as a foothold to discuss the broader problem of racism, they are cautioned to be careful and not to become “unglued” by an episode that may just be an “outlier.” When they respond that it reflects broader systemic forms of racism, they find themselves back where they started, dismissed for failing particularize their allegations and provide evidence of explicit racism. If their understandable frustration manifests in anger, they are further discredited.

Randy encourages “[a]ctivists who are demanding that universities do more to advance racial justice . . . to be encouraged by what has transpired in recent weeks.”  His point is not exactly clear to us, but he seems to be suggesting that student activists should be more or less satisfied with those gains, as if a couple difficult, truncated conversations and the promise of modest reforms have somehow dismantled the profound structural problems that some students have been devoted to exposing and repairing.

Randy’s assertion that students are actually engaged in “self-diminishment by displaying an excessive vulnerability to perceived and actual slights and insults,” is similarly skewed. In fact, he may unwittingly be a source of their disempowerment. After all, students are not cowering in response to the racism they perceive. They are not asking for sympathy. They are standing up and insisting that they be heard; they are pointing out what others have denied; they are mobilizing even when their elders tell them not to. They are pushing against powerful institutional forces – including the amplified voices of our faculty and administration.

To recognize subtle forms of power and those who are harmed by it is hardly disempowering. Even identifying as a “victim” of unjust power is not inconsistent with asserting one’s autonomy. In fact, locating the sources and causes of subordination can be a necessary step toward self-determination. We would never advise that Randy embrace “victim status,” but neither would we characterize the students’ complaints as self-diminishing.

The question is not whether these students risk undermining their own power; it is whether institutions like Harvard Law School will dare to take seriously systemic racism (and other forms of injustice), to scrutinize our practices and their effects, and to imagine and implement reforms that go beyond redecorated surfaces. Given this country’s history, this institution’s record, and the current state of our society, why haven’t racism and other sources of profound injustice been at the core of our mission and the center of our curriculum? 

Whether or not defaced photographs are the product of racial animus, there is so much more that Harvard Law School could do to acknowledge, understand, and resist the deep racism that shapes our institutions and our society. We could start that process by giving students the benefit of the doubt and by devoting ourselves to meaningful self-examination and, if necessary, reinvention, led by those who perceive a problem, not by those who still need convincing.  

Jon Hanson & Jacob Lipton