abstract. An assumption that dominates the discourse on race in the United States is that racial subjugation is only harmful to the subjugated. Many people take for granted that White people have nothing to gain from disrupting the existing racial hierarchy. Indeed, efforts to uplift people of color are typically viewed as coming at the expense of White people. This perspective is reflected in Derrick Bell’s influential interest-convergence thesis, which asserts that Black interests in racial equality are accommodated only if and when they converge with White interests. Because Bell accepted that White people did not have any inherent self-serving interest in racial equality, he believed that White and Black interests would only rarely and temporarily converge to bring about racial progress.

This Note challenges that paradigm. It offers a bold and novel adaptation and rehabilitation of the influential interest-convergence thesis by arguing that there are White interests, particularly in spiritual well-being and membership in a democratic society, which perpetually converge with Black interests in racial equality. Recognition of these perpetually convergent spiritual and democratic interests is necessary to undermine the notion that racial equality is a zero-sum game and to ultimately attain sustained and meaningful progress toward equality.

After establishing this theoretical framework, the Note explores the rich but thus far disappointing legacy of the perpetually convergent interests in various landmark race and education cases such as Brown v. Board of Education, Grutter v. Bollinger, and, most recently, Students for Fair Admissions v. Harvard (SFFA). In Brown, the Court failed to recognize how segregation harmed White students and, in doing so, both implicitly affirmed Black inferiority and canonized a zero-sum perspective of racial equality that has infected legal and public discourse. Grutter, on the other hand, was a rare instance in which the Court relied on White perpetually convergent interests and adopted an affirmative-action doctrine that recognized, though incompletely, how all people benefit from policies that mitigate or remedy racial subjugation. SFFA, as widely expected, marked the end of Grutter, but the Court’s rejection of the perpetually convergent interests in that case represents a more fundamental barrier to racial equality than many might realize.

In the wake of SFFA, it is important to recognize the perpetually convergent interests, both within and without the courts, if we are ever to make meaningful and sustained progress toward a more egalitarian society.

author. Yale Law School, J.D. 2023; University of Texas at Dallas, B.S. 2020. This Note’s publication would not have been possible without Gerald Torres, whose teaching provided an opportunity and foundation with which to begin this project; Daphne Peng and Sherry Maria Tanious, who provided early feedback and encouraged me to pursue publication; and the Yale Law Journal Notes & Comments Committee and team of editors, who saw promise in what this project could be and worked diligently to bring it through to publication. For invaluable feedback at various points in the drafting process, I am deeply grateful to Justin Driver; Monica C. Bell and the participants in our Race, Inequality, and the Law writing group; Emma Kaufman; LaToya Baldwin Clark; Russell C. Bogue; Zachary Shelley; Helen Malley; Kacey Manlove; and Anastasia Zaluckyj. Finally, a special thanks is warranted to Valentina Guerrero for her wonderful insight, endless patience, and dedication throughout the editing process. This Note has been improved by those mentioned above and others unnamed.

The Negro came to the white man for a roof or for five dollars or for a letter to the judge; the white man came to the Negro for love. But he was not often able to give what he came seeking. The price was too high; he had too much to lose. And the Negro knew this, too. When one knows this about a man, it is impossible for one to hate him, but unless he becomes a man—becomes equal—it is also impossible for one to love him.

—James Baldwin1

[S]ometimes I get awfully tired of trying to save the white man’s soul.

—Thurgood Marshall2

Introduction

Thurgood Marshall was almost lynched in Tennessee.3 He had come to town as a lawyer for the NAACP Legal Defense Fund to defend Blackpeople who were rounded up after the Columbia Race Riot of 1946. The “riot” was an act of racial terror during which the White4 residents of Columbia, city police, highway patrolmen, and state troopers violently descended upon the city’s Black neighborhood.5 Businesses were destroyed, phone lines into and out of the neighborhood were cut off, and dozens of Black people were injured, killed, or arrested.6

After winning the acquittal of two Black men who were alleged to have shot and wounded a state highway patrolman during the riot, the townsfolk wanted “justice”—the type of justice that ended with the bodies of NAACP lawyers in “the famous Duck River.”7 Marshall and his colleagues, aware that tensions were high, attempted to escape the sundown town before it was too late.8 But police were waiting on the road toward Nashville.9 They identified Marshall and arrested him on a phony charge of drunk driving.10 Once he was in the police car, the officers drove straight to Duck River.11 Marshall was lucky to survive the night.

His two colleagues bravely followed the police to the river and refused to leave.12 The presence of these extra witnesses somehow pressured the officers to abandon the lynching—at least for a couple of hours.13 The officers took Marshall to the Columbia courthouse so that a magistrate could rubber stamp the arrest. From there, the locals could simply “storm[] the jail with some rope and finish[] the job” later that night.14 Yet, as fate would have it, Marshall appeared before the only magistrate in town that had refused to sign warrants for the bogus arrests of Black people during the riot.15 The judge released Marshall, but there was still the matter of getting out of town alive. A decoy driver was placed into Marshall’s car and sent toward Nashville, while Marshall took a different car and left town through backroads.16 Though Marshall was finally able to escape Columbia, the decoy driver was stopped and beaten so badly that he was hospitalized for a week.17

This was the evil that Thurgood Marshall and his colleagues faced for years on their many travels into the Deep South. Yet, despite the death threats, the lynch mobs, and the Klansmen moonlighting as judges and police officers, Marshall continued his crusade to fight for racial justice. By 1951, Marshall was litigating what would become two of the most important Supreme Court cases of his career.18 In the lower courts, he was taking up the fight to desegregate public schools19 in an effort that would ultimately culminate in Brown v. Board of Education.20Meanwhile, Marshall was litigating before the Supreme Court to overturn the racially motivated convictions of two of the Groveland Four who were wrongfully punished for allegedly raping a White teenager and assaulting her husband.21 It was around this time that one of Marshall’s colleagues had begun to “notice[] the ‘battle fatigue’ setting in on the lawyer.”22 “‘You know,’ Marshall said to him, ‘sometimes I get awfully tired of trying to save the white man’s soul.’”23

This was a profound admission. Thurgood Marshall, a leader of the NAACP who spent years fighting on behalf of Black clients to challenge the violence and injustice of White supremacy, had characterized his mission as an effort to save White people.24 In doing so, he acknowledged an often unrealized (or perhaps ignored) truth about racial equality—that the fight against racial subjugation and the fight for “the white man’s soul” are two sides of the same coin. They are coextensive. This is because White supremacy exacts a heavy spiritual toll on its beneficiaries who perpetuate, or at least tolerate, the subjugation of others.

Marshall’s comment expressed a frustration with White America’s failure to appreciate its own interest in ending White supremacy because it fueled a fierce and unyielding opposition to racial justice. This failure has persisted throughout the nearly seventy years since Marshall fought for desegregation in Brown. And despite the progress that has been made, the nation is still woefully far from achieving racial equality. This Note argues that if we are ever to do so, it is imperative that the nation understands how White supremacy necessarily always harms White people as well as people of color.

The idea that there exists a White spiritual interest in ending racial subordination that coincides with a Black interest in our own liberation, as exemplified by Marshall’s comment about saving the White man’s soul, supports a bold intervention in and expansion of the renowned interest‑convergence thesis.25 The thesis, developed by legal scholar and civil rights activist Derrick Bell, argues generally that “[t]he interest of blacks in achieving racial equality will be accommodated only when it converges with the interests of whites.”26 Notably, Bell’s conception of white interests, though he did not emphasize this, is limited to material self‑interest or interest in other manifestations of power.27 Thus, it disregards the significance of idealistic self‑interest, such as an interest in saving one’s soul or an interest in being a member of a genuine and robust democratic society. Such disregard is a mistake. One cannot fully appreciate the universality of the harm wrought by White supremacy, to White, Black, and indeed all people in society, without recognizing White idealistic self‑interest.

This Note introduces a new conception of the interest-convergence thesis that better reflects this universal harm and offers a different paradigm through which we should orient our legal and public discourse on racial equality. The Note proceeds in four Parts. Part I explains Bell’s traditional interest-convergence thesis and highlights a few flaws that undermine its usefulness as a framework for achieving robust and sustainable racial equality. In so doing, it excavates an underacknowledged hallmark of Bell’s traditional thesis—“interest divergence.”

Part II then introduces the concept of “perpetually convergent interests” as an adaptation or rehabilitation of Bell’s interest‑convergence thesis. I identify two such interests: the spiritual interest and the democratic interest. The Part then concludes that appealing to these interests could present a powerful means to win support for racial justice, legally, politically, and socially.

Part III explores the legacy of these perpetually convergent interests in the courts by examining how they have been invoked, ignored, or relied upon in landmark racial-justice cases. I focus on the education context here because judicial recognition of the perpetually convergent interests is most salient in that area of law. This Part establishes that the perpetually convergent interests are legally cognizable and have rich historical roots. It explains how the Supreme Court failed to recognize the perpetually convergent interests at stake in Brown v. Board of Education, and that this failure both was rooted in an assumption of Black inferiority and unfortunately canonized a zero-sum perspective on racial equality that has become entrenched as the norm in legal and social discourse today. Finally, the Part discusses the affirmative-action cases. Specifically, it explains how the Court’s adoption of the diversity rationale in Bakke and Grutter was a unique instance in which the perpetually convergent interests were invoked, though incompletely, as a driving force of a doctrine that ostensibly promoted racial equality. However, with the recent decision in Students for Fair Admissions (SFFA), that doctrine has ended. In SFFA, the Court deemed the diversity rationale, and thus also the particular manifestations of the perpetually convergent interests on which it relied, to involve too “amorphous” of concepts to allow for adequate judicial scrutiny. In doing so, the Court has potentially erected a larger threat to racial equality than many might realize.

Part IV concludes by highlighting the importance and prospects of the perpetually convergent interests in the wake of SFFA. It is more important than ever for the nation to recognize the perpetually convergent interests as the battles over the legacy of SFFA are beginning to be waged. Such recognition does not depend on the existence of some profound legal doctrine like what existed during the Bakke/Grutter era. Rather than a change in doctrine, the perpetually convergent interests require a change in mindset. Accordingly, the interests can be applied in subtle ways beyond the context of education law or even the law itself. Indeed, at a time when the Supreme Court has used the existing paradigm to consistently weaken the law’s potential to bring about meaningful progress toward racial justice, the perpetually convergent interests would likely be more effectively utilized within a larger social movement where litigation plays only a supporting role.

Before turning to the argument itself, I write to briefly address a concern that some may initially have with this intervention. Some may argue that this Note wrongly emphasizes White interests rather than those of the people of color who bear the brunt of White supremacy’s harm. Their hesitation is understandable and appreciated. By virtue of our humanity, people of color are entitled to being treated with equal dignity to our White compatriots. Recognition of this truth alone should provide sufficient motivation and justification for the nation to actualize racial equality. Any appeal to separate, uniquely White interests in reaching that goal seems like a frustrating and counterproductive concession of Black inferiority. However, this Note should not be misunderstood to condone the nation’s failure to vindicate Black equality for its own sake. Nor should it be misunderstood to equate the magnitude of White supremacy’s harm to White people with its harm to people of color.

Rather, this Note highlights White interests in addition to (not at the expense of) Black interests for two reasons. First, doing so reflects the reality that all races in this nation “are caught in an inescapable network of mutuality” and “tied in a single garment of destiny.”28 Throughout this nation’s history, racial equality has been continuously impeded by a perception that we are playing a “zero-sum game, in which material and status gains for Blacks and other racial minorities are viewed only as losses for
Whites.”29 Such a destructive perspective is undermined by discourse which emphasizes how White people benefit from racial equality.

The second reason to highlight these White interests is a practical rather than idealistic one: the interest-convergence thesis. Bell’s basic idea, which this Note adopts, is that as a descriptive matter, appealing to the interests of White America is necessary to achieve equality. This Note offers a more sustainable and hopefully more authentic framework through which to do so.