Cheryl I. Harris

Whiteness as Property

Issues regarding race and racial identity as well as questions pertaining to property rights and ownership have been prominent in much public discourse in the United States. In this article, Professor Harris contributes to this discussion by positing that racial identity and property are deeply interrelated concepts. Professor Harris examines how whiteness, initially constructed as a form of racial identity, evolved into a form of property, historically and presently acknowledged and protected in American law. Professor Harris traces the origins of whiteness as property in the parallel systems of domination of Black and Native American peoples out of which were created racially contingent forms of property and property rights. Following the period of slavery and conquest, whiteness became the basis of racialized privilege - a type of status in which white racial identity provided the basis for allocating societal benefits both private and public in character. These arrangements were ratified and legitimated in law as a type of status property. Even as legal segregation was overturned, whiteness as property continued to serve as a barrier to effective change as the system of racial classification operated to protect entrenched power. Next, Professor Harris examines how the concept of whiteness as property persists in current perceptions of racial identity, in the laws misperception of group identity and in the Courts reasoning and decisions in the arena of affirmative action. Professor Harris concludes by arguing that distortions in affirmative action doctrine can only be addressed by confronting and exposing the property interest in whiteness and by acknowledging the distributive justification and function of affirmative action as central to that task.

Bell's Blues

absence from Harvard Law School in protest over the schools failure in its 150-year history to hire a woman of color in a tenured or tenure-track position. See Fox Butterfield, Harvard Law Professor Quits Until Black Woman is Named, NY Times Al (Apr 24, 1990). His decision was accompanied by student protests at the school in support of his stance and in vocal opposition to Harvards claim that it had found no qualified candidates. See Fox Butterfield, Harvard Liw School Torn by Race Issue, NY Times A20 (Apr 26, 1990). In 1991, Professor Bell remained on leave for the same reasons. In 1992, Professor Bell requested a renewal of his leave of absence as the continued failure of the law school to add a woman of color to its faculty constituted an ongoing violation of the commitment to affirmative action, an unjustified rejection of eminently qualified candidates, and a diminution of his status as a member of the faculty. See unpublished letter of Professor Derrick Bell to Dean Robert Clark, Harvard Law School, February 26, 1992 (on file with U Chi L Rev). See also Fox Butterfield, Professor Steps Up Fight with Harvard, NY Times A12 (Feb 28, 1992). Harvard Law School declined his request on the ground that it would violate the Universitys policy that restricts leaves of absence to two years. Professor Bells appeal of the decision to the Harvard Corporation was denied and his tenure was terminated on July 1, 1992. Harvard Law Notifies Bell of Dismissal for Absence, NY Times A19 (Jul 1, 1992). He is presently a visiting professor at New York University Law School. Id.