Abstract 

Excerpted From: Justin Driver, Rethinking the Interest-Convergence Thesis, 105 Northwestern University Law Review 149 (Winter 2011) (256 Footnotes) (Full Document)

When the United States Supreme Court validated the limited use of race as an admissions criterion in Grutter v. Bollinger eight years ago, many veterans of the civil rights struggle greeted the decision with elation. Elaine R. Jones, then-President of the NAACP Legal Defense and Educational Fund, Inc., called the decision upholding the University of Michigan's law school admissions program “a slam-dunk victory affirming the principles we have been fighting for.” Professor Jack Greenberg, one of Jones's predecessors at the Legal Defense Fund and part of the litigation team who won Brown v. Board of Education, also viewed Grutter as an affirmation of the organization's efforts to achieve black advancement. Professor Greenberg expressed particular admiration for Grutter's conception of affirmative action not as a policy that benefits primarily blacks but instead as a policy that benefits all of American society--including the armed services and the business communities. Referring to Justice O'Connor's opinion for the Court in Grutter, Professor Greenberg commented that she kept “[h]er eye . . . on the condition of society and what affirmative action can do to help fix it, not what caused the condition.” This holistic perspective was, in Professor Greenberg's estimation, deeply commendable. “In this I think she is not only right,” Professor Greenberg wrote, “but it is what has been the driving force of affirmative action all the time: affirmative action to make ours a better country.” was not, of course, praised in all circles. In addition to criticism launched at the opinion from the right for its refusal to prohibit racial classifications, legal scholars on the left also criticized Grutter for precisely the feature that Professor Greenberg lauded: its justification of affirmative action as a compelling government interest on the ground that such programs enhance leading American institutions rather than on the ground that such programs benefit racial minorities.

Most prominently, Professor Derrick Bell viewed Grutter as a “definitive example” of his “interest-convergence” thesis. According to this thesis, blacks receive favorable judicial decisions to the extent that their interests coincide with the interests of whites. The Court's decision in Brown, by these lights, was not motivated by a desire to redress black suffering under racial segregation; instead, the United States eliminated Jim Crow in order to improve its international image during the Cold War. Writing nearly five decades after Brown was decided, Professor Bell detected similar motivations animating the Court's decision in Grutter: “When [Justice O'Connor] perceived in the Michigan Law School's admissions program an affirmative action plan that minimizes the importance of race while offering maximum protection to whites and those aspects of society with which she identifies, she supported it.” Professor Bell contended that Grutter “should provide [him] with some measure of a prophet's pride” because he has long asserted “that no matter how much harm blacks were suffering because of racial hostility and discrimination, we could not obtain meaningful relief until policymakers perceived that the relief blacks sought furthered interests or resolved issues of more primary concern.” Just as Brown did not immediately lead to desegregated schools in much of the country, Professor Bell predicted that Grutter would prove to be a fleeting victory for racial minorities: “Once again, blacks and Hispanics are the fortuitous beneficiaries of a ruling that can and probably will change when other priorities assert themselves.” Bell was far from alone in viewing Grutter as evidence of the interest-convergence theory at work. Indeed, a strikingly large number of scholars independently identified the Court's decision as a vivid illustration of racial interests converging. Grutter thus provides a clear view of the central position that the interest-convergence theory occupies in constitutional law scholarship in general and race relations law in particular. Even though Professor Bell introduced the theory more than thirty years ago, many scholars who explore how race interacts with the law continue to regard it as “enormously influential.” Aided by the historical scholarship that has supported Professor Bell's assertion regarding the primacy of the Cold War in achieving desegregation, the interest-convergence thesis has become a part of the standard account of the Court's motivations for Brown. Scholars particularly concerned with the plight of blacks, furthermore, continue to find vitality in the interest-convergence thesis. In addition, scholars have applied the interest-convergence theory to explain legal developments among nonblack racial groups, including Latinos and Asian-Americans. The influence of the interest-convergence theory has extended well beyond the borders of race relations law as legal academics have imported the interest-convergence thesis into a wide array of doctrinal areas. Constitutional law scholarship, apart from the theory's implications for Brown, has imported the interest-convergence thesis to explain judicial interpretation of the First Amendment's religion clauses and the subordination of non-Christian religions. Criminal law scholarship has imported the interest-convergence thesis to explain why courts sometimes permit “cultural defenses” to prevail. Employment discrimination law scholarship has imported the interest-convergence thesis to explain when employees will receive legal relief in challenging employment policies. Indian law scholarship has imported the interest-convergence thesis to explain why state courts give effect to tribal courts' criminal convictions but not to tribal courts' civil judgments. these examples of the theory's application to assorted doctrinal areas, many scholars have looked to it as providing a strategic method for producing social and political change. Among the extremely broad range of issues that scholars believe the interest-convergence theory can remedy or illuminate are the following: educational reform, pension reform, animal rights, domestic violence, concentrated poverty, and even the war on terror. The interest-convergence theory's strategic implications have also been adopted by the popular press, and the theory has been cited approvingly in federal judicial decisions. Given the theory's prominence within the legal academy and beyond, it is surprising that virtually no sustained scholarly attention has been dedicated to examining the interest-convergence thesis, the assumptions that undergird the thesis, and the consequences that flow from accepting the thesis. Although the interest-convergence thesis is cited with great regularity, the articles that refer to the idea almost invariably invoke the idea as a kind of received wisdom. The few scholarly works that criticize the thesis, moreover, tend to do so in a fleeting manner. This Article initiates a critical discussion of the interest-convergence thesis--a discussion that is long overdue.

This Article proceeds in three principal parts. In order to contextualize my critique, Part I provides a brief overview of the interest-convergence theory. Rather than merely summarizing the article that coined the term, however, this overview identifies the theory's precursors within Professor Bell's work. The overview then closely examines the article that unveiled the “interest-convergence” terminology and explores how that notion has subsequently been offered to explain contemporary racial developments. This Part and the ensuing critique draw upon many of Professor Bell's writings throughout his career in order to gain a full appreciation of the interest-convergence theory. This eclectic approach is not only appropriate but necessary because Professor Bell has repeatedly returned to the theory, both explicitly and implicitly, in his scholarly efforts to address contemporary racial dynamics. In the parlance of Isaiah Berlin, Professor Bell more closely resembles a hedgehog than a fox, and confining this examination of the interest-convergence theory to only its earliest manifestations would artificially constrain the inquiry.

With a foundational understanding of the interest-convergence theory in place, Part II identifies and examines four analytical flaws that diminish the theory's persuasiveness. First, the theory's overly broad conceptualization of “black interests” and “white interests” obscures the intensely contested disputes regarding what those terms actually mean. Second, the interest-convergence theory incorrectly suggests that the racial status of blacks and whites over the course of United States history is notable more for continuity than for change. Third, the interest-convergence theory accords insufficient agency to two groups of actors--black citizens and white judges--who have played, and continue to play, significant roles in shaping racial realities. Fourth, the interest-convergence theory cannot be refuted? and, thus, cannot be examined for its validity?because it accommodates racially egalitarian judicial decisions either by contending that they are necessary concessions in order to maintain white racism or by ignoring them altogether.

The interest-convergence theory's analytical flaws, in turn, lead to harmful consequences, which are explored in Part III. The insistence that fortuitous moments of converging racial interests account for favorable judicial and policy decisions may regrettably lead the theory's adherents to limit their strategies for achieving genuine racial equality. In addition, the theory's irrefutability strengthens the racially conspiratorial viewpoint that is disturbingly prevalent within the black community.

At the outset, it merits emphasizing that I believe the interest-convergence theory warrants examination not only because it is influential, but also because it contains at least some persuasive force. To be sure, much of the following analysis levels serious criticism and expresses deep misgivings about the theory's analytical underpinnings and the consequences that flow from the theory. But the interest-convergence thesis cannot simply be deemed beyond analysis. While the theory is too often categorical where it should be nuanced and too often focused on continuity where it should acknowledge change, the theory nevertheless serves as a valuable corrective to the narrative of unambiguous triumph that plagues a disconcertingly large portion of scholarship regarding racial considerations in constitutional law. The interest-convergence thesis, moreover, demonstrated an admirably early understanding among legal scholars of the way in which domestic events cannot be viewed in utter isolation from the surrounding international context. Whatever the theory's shortcomings, it is crucial not to overlook its considerable contributions to legal discourse.

[. . .]

The article that coined the term “interest convergence” ended with the suggestion that “awareness” is “always the first step toward overcoming still another barrier in the struggle for racial equality.” Although the preceding pages have offered many theoretical criticisms of the interest-convergence thesis, this Article heartily endorses that conclusion. Indeed, this Article has been animated by the proposition that advocates of racial equality, who demonstrate intimate familiarity with the theory's virtues, would benefit from an increased awareness of the theory's vulnerabilities.

Beyond the racial context, moreover, my broader hope is that legal scholars and other individuals who have incorporated the insights of interest convergence wholesale into various legal and political arenas will critically examine both the theory and its applications. The interest-convergence theory can offer valuable and formidable insights into the way that change occurs; it should not, however, be viewed as either flawless or all-encompassing. Instead of adhering to any unified theory, reformers seeking change would do better to think of the interest-convergence thesis as but one weapon in the fight for progress rather than as the entire arsenal. Advocates for change, moreover, should be particularly circumspect of attempting to implement the interest-convergence strategy when doing so may further the very inequalities that they seek to erase. Initiating this conversation about the frailties of interest convergence, then, may well help to advance the nation's continuing struggle for equality?not only regarding race but along the many stubborn dimensions of inequality.

Assistant Professor, University of Texas School of Law.