A newly discovered editorial by Derrick Bell and a response by Harvard Law School sheds light on the current controversy over Elizabeth Warren's self-identification as a "Native American." Pushback on the story has focused on the fact that Warren did not need minority status to be hired at the prestigious law school. But the real beneficiary of Warren's minority claims wasn't Warren herself; it was Harvard Law.

In 1969, Derrick Bell became the first black law professor at Harvard. He was given tenure in 1971 and over time felt that not enough minorities professors were given a place at the school. By 1986, he was leading student protests at Harvard for their failure to grant tenure to two black law professors who were teaching his critical race theory.

The pressure to hire more minority law professors continued over the next several years. This 1988 report in the NY Times announces the conclusion of a 24-hour sit-in of the office of James Vorenberg, then Dean of Harvard Law. Minority students at the law school staged the protest to demand that Harvard hire "20 women or members of minority groups in the next four years as tenured or tenure-track professors." Barack Obama would enter Harvard Law just a few months later.

In 1989, Derrick Bell took his protest to a new level. At the time there were five black men who were tenured professors at Harvard but no black women, no minority women at all in fact. Bell decided to go on an unpaid leave of absence until this situation was rectified. One year later, in 1990, Bell was celebrated on campus by a group of students led by a young Barack Obama. When Bell requested an extension of his leave of absence, his tenure ended and he effectively left Harvard for good.

In 1995, with this controversy still swirling around the school, Harvard hired its first minority woman law professor, Elizabeth Warren. In fact, the position was offered to her in 1993, according to the Harvard Crimson, and she accepted two years later. The 1993 article covering the story states, "The vote marks an advance in the student and faculty effort to improve faculty diversity."

Warren had identified herself as Native American in legal directories since 1986. Her claim to minority status (1/32nd Cherokee, and even that is questionable) was later touted by the law school's spokesman in a 1996 Crimson article. He wrote, "Of 71 current Law School professors and assistant professors, 11 are women, five are black, one is Native American and one is Hispanic."

In 1998, Harvard Law hired Lani Guinier, the first black woman professor at the school. Despite having left Harvard years earlier, Derrick Bell considered this a victory. He wrote an op-ed in the January 29 edition of the NY Times which, for some reason, is not available on the web. It was, however, possible to track down a copy at the local library.

 

Bell opens his op-ed: "There has been a breakthrough at Harvard Law School. It has hired Lani Guinier as its first tenured black female professor. What took Harvard so long?" In response to the broadside, Harvard's News Director (the same individual quoted by the Crimson two years earlier) sent a letter to the editor which was published by the Times on February 1, 1998.

Re the Jan. 29 Op-Ed article on hiring at Harvard Law School: Since 1989 the school has appointed to the faculty or voted tenure for four African-Americans, a Hispanic professor and eight women, including a Native American.

The Crimson also published a story welcoming Lani Guinier to the faculty, once again touting Elizabeth Warren's minority status:

Guinier will become the first female African-American professor in the 181-year history of HLS. A former Clinton nominee and former NAACP lawyer and an expert on voting rights and civil-rights law, Guinier is a welcome addition to the HLS faculty. However, her appointment is the first in what continues to be a painfully slow process of bringing professors of minority ethnicities to the Harvard University faculty.

Harvard Law School currently has only one tenured minority woman, Gottlieb Professor of Law Elizabeth Warren, who is Native American. The racial makeup of the HLS Faculty has been an issue before as well: in 1989, Harvard dismissed Weld Professor of Law Derrick A. Bell after 18 years of teaching because the noted expert on race and law refused to end his leave in protest of the absence of minority women on HLS faculty. [emphasis added]

After the story about Warren's minority status broke last month, the NY Times published a pushback piece which claimed Warren's race had nothing to do with her being hired by various law schools. It quotes a chairman of the University of Texas law school saying, "To suggest that she needed some special advantage to be hired here or anywhere is just silly."

What's truly silly is the way the NY Times ignores the obvious context of Warren's hiring. Being "Native American" may or may not have benefited Elizabeth Warren, but there's no doubt that it benefited Harvard Law School. Harvard had been under fire for decades by Derrick Bell and others who felt the school lacked sufficient commitment to diversity in hiring. In this ongoing conflict, Warren's minority status was used as a shield against criticism on at least two occasions: once in the Crimson in 1996 and once more in the Times in 1998. Given Harvard Law's history of protests, sit-ins, and high profile departures over diversity hiring, it's difficult to believe Warren's minority status, repeatedly touted by school officials after she was hired, wasn't noticed during her hiring.