Julia Penny Clark Complete Oral History

Julia Penny Clark, Esq.

Oral History Project

The Historical Society of the District of Columbia Circuit

Oral History Project United States Courts

The Historical Society of the District of Columbia Circuit

District of Columbia Circuit

Julia Penny Clark, Esq.

Interviews conducted by:

Moxila Upadhyaya, Esq.

November 30 and December 15, 2015

October 23 and 30, 2018

December 27, 2018

NOTE

The following pages record interviews conducted on the dates indicated. The interviews were

recorded digitally or on cassette tape, and the interviewee and the interviewer have been afforded

an opportunity to review and edit the transcript.

The contents hereof and all literary rights pertaining hereto are governed by, and are subject to, the

Oral History Agreements included herewith.

PREFACE

The goal of the Oral History Project of the Historical Society of the District of Columbia

Circuit is to preserve the recollections of the judges of the Courts of the District of Columbia

Circuit and lawyers, court staff, and others who played important roles in the history of the Circuit.

The Project began in 1991. Oral history interviews are conducted by volunteer attorneys who are

trained by the Society. Before donating the oral history to the Society, both the subject of the

history and the interviewer have had an opportunity to review and edit the transcripts.

Indexed transcripts of the oral histories and related documents are available in the Judges’

Library in the E. Barrett Prettyman United States Courthouse, 333 Constitution Avenue, N.W.,

Washington, D.C., the Manuscript Division of the Library of Congress, and the library of the

Historical Society of the District of Columbia

With the permission of the person being interviewed, oral histories are also available on the

Internet through the Society’s Web site, www.dcchs.org. Audio recordings of most interviews, as

well as electronic versions of the transcripts, are in the custody of the Society.

TABLE OF CONTENTS

Preface. ……………………………………………………………………………………………………………….. i

Oral History Agreements

Julia Penny Clark, Esq.. ……………………………………………………………………………….. iii

Moxila Upadhyaya, Esq.. ………………………………………………………………………………..v

Oral History Transcripts of Interviews

November 30, 2015 ………………………………………………………………………………………..1

December 15, 2015 ………………………………………………………………………………………37

October 23, 2018 ………………………………………………………………………………………….68

October 30, 2018 ………………………………………………………………………………………..116

November 5, 2019 ………………………………………………………………………………………155

Index …………………………………………………………………………………………………………….. A-1

Table of Cases and Statutes …………………………………………………………………………………B-1

Biographical Sketches

Julia Penny Clark, Esq ………………………………………………………………………………..C-1

Moxila Upadhyaya, Esq. ……………………………………………………………………………. D-1

Attachments

1974-10-1 JPC Memorandum to Justice Powell …………………………………………….. E-1

1974-11-1 JPC Memorandum to Justice Powell …………………………………………….. F-1

1976 Letter from Justice Craven, Jr. ……………………………………………………………. G-1

Weinberger v. Wiesenfeld ………………………………………………………………………….. H-1

ORAL HISTORY OF JULIA PENNY CLARK

Schedule A

Voice recordings (digital recordings, cassette tapes) and transcripts resulting from five

interviews with Julia Penny Clark, Esq., conducted on the following dates:

Description of Media

Interview No. and Date Containing Voice Recordings Pages of Transcript

November 30, 2015 All on one CD 1-36
December 15, 2015 37-67
October 23, 2018 68-115
October 30, 2018 116-154
November 5, 2019 155-192

The transcripts of the interviews are contained on one CD.

ORAL HISTORY OF JULIA PENNY CLARK

Schedule A

Voice recordings (digital recordings, cassette tapes) and transcripts resulting from five

interviews with Julia Penny Clark, Esq., conducted on the following dates:

Description of Media

Interview No. and Date Containing Voice Recordings Pages of Transcript

November 30, 2015 All on one CD 1-36
December 15, 2015 37-67
October 23, 2018 68-115
October 30, 2018 116-154
November 5, 2019 155-192

The transcripts of the interviews are contained on one CD.

ORAL HISTORY OF JULIA PENNY CLARK

First Session

November 30, 2015

Ms. Upadhyaya: Okay, it is November 30th, approximately 6pm. I’m at the offices of Bredhoff &

Kaiser. This is Moxila Upadhyaya taping session one of the oral history of Julia

Penny Clark and the only individuals in the room are myself and Ms. Clark. So

Ms. Clark where were you born?

Ms. Clark: I was born in a very small town called Oak Grove, Louisiana which is in the far

northeastern corner of the state.

Ms. Upadhyava: When you say very small town?

Ms. Clark: Oh, maybe a 1,000 people. Probably fewer than that at the time.

Ms. Upadhyava: When were you born?

Ms. Clark: 1948.

Ms. Upadhyava: Do you know the hospital you were born at?

Ms. Clark: The Biggs Clinic.

Ms. Upadhyava: And were both of your parents from Louisiana?

Ms. Clark: No, my father was and that’s why the family was there at the time. My mother

was from Texas, from Waco, Texas but my father had been in the armed

forces during World War II and the Army Air Corps and was given a period

of leave because his father was ill or had died, probably had already died and

he was needed to farm the land that his family had. So he went back to Oak

Grove to keep the farm running for some period of time, I’m not sure quite

how long and I was born while the family was there.

Ms. Upadhyava: And your paternal side of your family were, your grandfather was a

farmer. Was his father a farmer, if you know?

Ms. Clark: I assume so but I don’t know that for sure. They, it was a Louisiana farm so

they grew cotton and vegetables and nothing really exotic.

Ms. Upadhyava: How large was the farm?

Ms. Clark: I think it was quite small. I don’t know for sure but my father plowed the

fields with a horse, so it was not, you know it wasn’t like your modern

factory farms with great big tractors and things like that.

Ms. Upadhyava: Do you know whether, was your father married when he was in the service or

so when he came back from the service or took a leave?

Ms. Clark: My parents married in 1943. My father, they met in San Antonio, Texas where

he was in training in the Air Force. The Air Force had maybe five large

training bases around San Antonio at the time and he was there. My mother

was there working for a local newspaper as a bookkeeper in the classified ads

department.

Ms. Upadhyava: Your father’s name, full name was?

Ms. Clark: Elton Willis Clark.

Ms. Upadhyava: And your mother’s name?

Ms. Clark: Pauline Ruth Smith Clark. So they married in ’43 and my sister was born in

’45 at a time when my father was on Guam waiting for what would have been

the invasion of the Japanese home islands. But the atomic bomb ended that

and he came home as soon as he was given transport back.

Ms. Upadhyava: What was your sister’s name?

Ms. Clark: Anna Beth Clark.

Ms. Upadhyava: So he, you said he came back home?

Ms. Clark: He must have got back home in the spring of ’46. It took a while for them to

transport everybody back. And the people who had been over there in combat

got first priority as you might expect and he had not been in combat. He had

just been shipped over there to be ready for the invasion.

Ms. Upadhyava: When your father left for, was Guam his first deployment as far as you know?

Ms. Clark: His first overseas assignment, yes.

Ms. Upadhyava: So he joined the Air Force, went from Louisiana to San, straight to San

Antonio for training?

Ms. Clark: I’m pretty sure that’s right.

Ms. Upadhyava: And your mother I presumed had moved from Waco to San Antonio for

work or for?

Ms. Clark: Yeah, she actually spent most of her childhood and her young adulthood in

Gatesville, Texas which is even smaller than Waco. But when she graduated

from high school, it was the Depression. There was, she wanted to go to

nursing school but the family didn’t have enough money to send her so she

decided to seek her fortune in San Antonio.

Ms. Upadhyava: What was the line of work that your maternal grandparents were in?

Ms. Clark: My maternal grandfather ran a credit bureau in Gatesville, so doing credit

checks on people. In those days not quite as easy as it is now. And my maternal

grandmother taught children with intellectual disabilities in her home so she

had students with Down Syndrome and she taught them to read and

rudimentary skills like that.

Ms. Upadhyava: Wow.

Ms. Clark: She did that for years.

Ms. Upadhyava: Did she have professional training? Had she gone to school somewhere in the

area for?

Ms. Clark: She went to Baylor University but I don’t think she graduated. And my

grandfather also went to Baylor University. I would guess that he did graduate

but I’m not sure.

Ms. Upadhyava: So your maternal grandmother and grandfather met at Baylor?

Ms. Clark: Yes.

Ms. Upadhyava: You presume?

Ms. Clark: Yes.

Ms. Upadhyava: Ok. How many sisters or bro, did your mother have any siblings?

Ms. Clark: She had one sister and two brothers.

Ms. Upadhyava: Ok. Do you know what…how old she was when she moved to San Antonio?

Ms. Clark: I would say she was probably about 17 or 18. But I might, yeah.., I mean, I

don’t know how long she stayed in Gatesville before she decided to head for

San Antonio. I don’t know that for sure.

Ms. Upadhyava: Do you know how old she was – how old she was – when she met

your father.

Ms. Clark: Well, 1943 she was twenty three.

Ms. Upadhyava: Do you know how they met?

Ms. Clark: In church.

Ms. Upadhyava: Ok. And, how long did they date before they got married.

Ms. Clark: Not very long at all…

Ms. Upadhyava: Chuckles.

Ms. Clark: They met on Mother’s Day and married on Labor Day.

Ms. Upadhyava: Chuckle…Ok. Great!

Ms. Clark: 1943

Ms. Upadhyava: Did umm… so then he was de… so… after how…how long after they were

married did was he deployed? You said 19…

Ms. Clark: Yeah, It was ‘45. It would have been the ummm…

Ms. Upadhyava: …a year and a half or two years.

Ms. Clark: Right. And when she got pregnant with my sister, uh… she was fired from her

job. The instant that her employer knew she was pregnant, was not gonna have

any pregnant women – she was working as a bookkeeper in a classified ad

department of the newspaper. I mean, it was not exactly a strenuous job, but

the [sighing] culture in those times, those days was ‘we will not have any

pregnant women working’… and she was fired from her job, and she went to

live with her sister in Kansas, which is where my sister was born.

Ms. Upadhyava: Where in Kansas was your sister born?

Ms. Clark: Horton.

Ms. Upadhyava: Where is that? I’m from Miss…

Ms. Clark: No idea.

Ms. Upadhyava: I’m from Missouri, so that’s why that’s why I ask.

Ms. Clark: Yeah I know [Laughs]…. I just know the name of the town. Horton,

Kansas.

Ms. Upadhyava: Because your father was deployed, she was…

Ms. Clark: He was overseas…right.

Ms. Upadhyava: She went to live with her sister?

Ms. Clark: Yes.

Ms. Upadhyava: Um…how old w…so when your…so your father came back in the spring of ’46,

so I suppose Anna was, Anna Beth was about one?

Ms. Clark: Yeah.

Ms. Upadhyava: When he met her there?

Ms. Clark: Yes, she was born in November so she was…

Ms. Upadhyava: About 6 – 8 months when he met her?

Ms. Clark: Probably, yeah, maybe…maybe a little older. It could have taken longer for

him to get a slot on the transport back from Guam.

Ms. Upadhyava: Umm…Do you know what his duties were when he was deployed?

Ms. Clark: He was um…throughout his career in the Air Force an Aircraft Maintenance

Technician.

Ms. Upadhyava: Mhm….

Ms. Clark: So he maintained the airplanes. He did engine work and whatever else needed

to be done.

Ms. Upadhyava: Was that his only deployment overseas?

Ms. Clark: No. He also was um…deployed for the Berlin Airlift. He was stationed at one

of the outer ring of bases where they were servicing the airplanes, loading them

up, turning them around and sending them back to Berlin. Just around the clock.

Seven days a week. Um…for as long as that lasted, which I think was about a

year and a half, and I don’t know how long he was there specifically. Cause I

was a baby. [laughs]

Ms. Upadhyava: So you were born at this time?

Ms. Clark: I was born before he left for the Ber…he was in, he was in Oak Grove when I

was born.

Ms. Upadhyava: Ok.

Ms. Clark: My mother stayed there when he was sent overseas for the airlift, and she

stayed there until he came back. He did a later deployment for the Korean

War, he was stationed in Tokyo…

Ms. Upadhyava: mhm…

Ms. Clark: …and maintained aircraft there. That was a year and a half he was there.

And then his next overseas service was the Vietnam War, when he was

stationed in Hanoi…

Ms. Upadhyava: mmm…

Ms. Clark: No, I’m sorry…no, no, no, Hanoi was the enemy

Ms. Upadhyava: mhm

Ms. Clark: umm…Saigon,

Ms. Upadhyava: Mhh…

Ms. Clark: …right, ya Saigon, Tan Son Nhut Air Force Base, it was called in Saigon.

And that was his last overseas deployment.

Ms. Upadhyava: Chronologically, um…let me make sure I get this right, so um…Anna

Beth was born during the time that your father was in Guam.

Ms. Clark: Right.

Ms. Upadhyava: He comes back in the spring of ’46, do they move – do your parents move to

Oak Grove um…at that time?

Ms. Clark: I, I…

Ms. Upadhyava: She must have from Kansas.

Ms. Clark: I don’t know exactly whether they were directly from Kansas to Oak Grove,

they may have…

Ms. Upadhyava: mhm…

Ms. Clark: …it would make sense. And I don’t know of, you know I mean I’ve got picture

albums and everything and I don’t think there are any pictures between Horton

and Oak Grove, I think it’s all [inaudible] so they must have gone directly to

Oak Grove.

Ms. Upadhyava: And are you the second born? Ms. Clark: I am,

Ms. Upadhyava: Ok

Ms. Clark: and the last.

Ms. Upadhyava: Ok.

Ms. Clark: So there were just the two of us.

Ms. Upadhyava: Ok. So you are born and then your father was deployed to

Germany.

Ms. Clark: Mhm.

Ms. Upadhyava: Do you know how old you were, when that happened?

Ms. Clark: No. I don’t have that timeline that clear in my head, exactly when the

Berlin Airlift started or when he was sent over.

Ms. Upadhyava: Do you recall him being gone for long periods of time?

Ms. Clark: Yeah, I remember him being gone for Japan,

Ms. Upadhyava: Mhm.

Ms. Clark: and for Vietnam.

Ms. Upadhyava: Ok.

Ms. Clark: umm…Japan was a year and a half, and I was in first grade.

Ms. Upadhyava: Mhm.

Ms. Clark: Vietnam, I was in high school, and it was a year.

Ms. Upadhyava: I’d like to go back for a moment…let me finish the chronology. Between

deployments were your parents maintaining the farm.

Ms. Clark: No…no…once… after he came back from Germany, um…he stayed in the

Air Force on active duty,

Ms. Upadhyava: Mhm.

Ms. Clark: …and so we lived at various places in the south where there were Air

Force bases.

Ms. Upadhyava: Mhm.

Ms. Clark: Umm…I mean my earliest memory is of a place where we lived in Panama

City, Florida.

Ms. Upadhyava: That’s where my parents currently live.

Ms. Clark: Is that right?! How wonderful.

Ms. Upadhyava: Panama City Beach.

Ms. Clark: Yeah. Well, we weren’t on the beach we were we were more inland but uh..

Ms. Upadhyava: Ok.

Ms. Clark: …at a place they called a Tourist Court, which was just a cluster of little houses

that people would come and go for about a week or two weeks or whatever. But

we were long term tenants there.

Ms. Upadhyava: Ok.

Ms. Clark: Um…and then we went to Valdosta, Georgia, for a temporary

assignment. I think it must have been a training assignment that

he had.

Ms. Upadhyava: Mhm.

Ms. Clark: And…

Ms. Upadhyava: You can get that if you need to.

Ms. Clark: Alright. [Speaks on phone]. Um, and then we moved back to Panama City for

my year in first grade and I guess the whole time he was in in Tokyo we were

in Panama City.

Ms. Upadhyava: Mhm.

Ms. Clark: And then we moved to Charleston South Carolina right after I finished first

grade and right after he came back from Tokyo.

Ms. Clark: So he stayed then in Charleston, except for one brief training assignment in

Texas. He stayed in Charleston for an unthinkably long time for a military

family, especially an Air Force family. We were there from the time I

finished first grade – we moved during that summer – until I was partly into

the ninth grade.

Ms. Upadhyava: Hmmm.

Ms. Clark: So I guess that’s eight full years, which is….which was really quite nice. I

mean, the same community, although we didn’t live in the same house.

Different houses at different times.

Ms. Upadhyava: Nice in the sense that you were staying put.

Ms. Clark: Yeah, we weren’t being transferred every year or two. And I went from third

grade through eighth in the same school system. So I had stable friends in

school and we were in the same church throughout that period of time and it

was just…it was much more stable than most military families enjoy.

Ms. Upadhyava: When you reached ninth grade…so your father was in Vietnam in high school.

So where were you living when he was deployed to Vietnam?

Ms. Upadhyava: In Waco, Texas.

Ms. Clark: Okay, so you went to Waco after Charleston.

Ms. Clark: Yeah, he asked for a transfer because my mother’s parents were still in

Gatesville, which is fairly close to Waco and there was then an Air Force base

in Waco. The transfer was granted and then so we moved to Waco.

Ms. Upadhyava: Did he ask for the transfer because he knew he was going to be deployed and

he wanted the family to be near your mother’s family?

Ms. Clark: No. No, in fact that uh….So that was…I’m counting back…60…1960 or

And there really wasn’t much going on in Vietnam. So no, he didn’t

know he was going to be deployed. It was…we went on a vacation to visit the

grandparents and everybody had a good time and he thought “Gee, you know

this would be a nice place to live.” So he asked for the transfer and quite

surprisingly got it.

Ms. Upadhyava: How did you feel about moving at that time? Because I’ve moved and I

had a similar upbringing and I resented having to move in the eighth grade,

which I had to do.

Ms. Clark: You know, I guess, it was sort of, it was a good time for me to move. Uhm, but

they had moved me out of the high school. I started high school in the eighth

grade, at least the North Charleston schools had 8th through 12th in high

school, didn’t have any middle school. So I started eight grade in one high

school, and they redrew the attendance lines and moved me to a completely

different high school for ninth grade. A few of my friends were there but not

many. And so those ties had kind of been broken already. And I, as I recall it, I

was happy for the thought of moving to Texas. So it worked out fine for me. If

it had happened the year before when I was still in school with all the friends, I

had gone to elementary school with I might have thought about it differently.

Ms. Upadhyava: What was the culture like in, cultural difference between Charleston and

Waco? Did you…I mean, how different was it?

Ms. Clark: Charlestown is deep South and I was keenly aware by then, certainly is the kind

of thing you become aware of gradually, but I was keenly aware of outright

segregation. Signs on water fountains, white and colored, restrooms white and

colored, school buses going past our school loaded with young African

American children taking them to their school, which was farther away. All of

those things were really obvious, and not so much in Waco. The school, the

high school I went to in Waco was segregated and there was no African

American student there, until I think it was my senior year. And they started a

very gradual, tentative integration of bringing in students of a school that had

been entirely African American, but you know it was not as blatant by any

means as it was in Charleston. In Charleston, the segregation was very blatant

when we left there.

Ms. Upadhyava: You went to segregated schools the whole time you were in Charleston, yes?

Ms. Clark: Yeah, oh yeah, yes, absolutely.

Ms. Upadhyava: Did you know any African American families, or did you have any African

American friends?

Ms. Clark: No. Nobody in our neighborhood; there was just no one I would have any

contact with. Church was segregated, everything was segregated. It just

absolutely everything was segregated in those days.

Ms. Upadhyava: What church did your family belong to?

Ms. Clark: A Baptist church.

Ms. Upadhyava: And was segregation at that time in Charleston now, I guess let’s stick with

Charlestown for the time being, something that was discussed?

Ms. Clark: Well this was during the time that Brown v. Board of Education was decided

and then the first few court rulings after that addressed the question of how

quickly the Supreme Court was going to require that segregation be ended. So

there was a lot of news about it. And I remember hearing it even as early as

second or third grade. There was some point while we were in Charleston that

would have been somewhere between my third grade and my eighth grade that

a decision was announced that sounded like it was going to require some more

rapid changes, of course it never did, at least not while we were there. And my

father announced that he wasn’t going to allow us to go to integrated schools, if

they integrated the schools, he was going to take us out of school. Well, I

thought that was the most horrifying thing I could think of because I was really

good at school. That was what I did well. And I knew the family didn’t have

money to send me to a private school, and the thought that he would take me

out of school was the worst thing I could think of, and I couldn’t imagine why

it would matter to him so much that there would be African American students

in my school. I mean, how can that hurt me?

Ms. Upadhyava: Umhum.

Ms. Clark: But that was his mindset and he didn’t, very late in his life, and I’ll say this

now. Very late in his life he came to have some very close friends who were

black, and his attitude changed dramatically. But at the time that we were in

Charleston in the late fifties, ah it was, segregation was the way he saw the

world and he was going to defend with whatever he could defend it with.

Ms. Upadhyava: No, we’re good. I have to come back to your mother’s firing.

Ms. Clark: Umhum.

Ms. Upadhyava: Okay. You did not think you were going to go away without talking about that.

Ms. Clark: No, no, right.

Ms. Upadhyava: Because I know that must have had an impression. But I don’t want you to lose,

I want to come back to that this session. But more on this point, did you have,

as you were growing up and your father is saying that if the schools are

integrated, he was going to pull you out of school. Was the notion was that you

were going to be homeschooled if that happened, or was it?

Ms. Clark: He didn’t go that far.

Ms. Upadhyava: He didn’t go that far, right.

Ms. Clark: He wasn’t taking the progression, and we will do X, it was just I’m going to

take you out of school.

Ms. Upadhyava: Right, did your mother have any particular view if you can remember?

Ms. Clark: She was not going to disagree with my father; that was just the nature of their

marriage. She was probably as horrified as I was at the thought that he would

pull us out of school. And maybe was just thinking it would never come to this,

for whatever reason, I’m guessing that was her approach. But I knew I couldn’t

go to her and say: “You got to disagree with Daddy” that just didn’t happen in

our household.

Ms. Upadhyava: What about Anna Beth? What was her take on it?

Ms. Clark: I, much the same as mine, which was no you can’t do that.

Ms. Upadhyava: Did you, at this point you were in second, third, fourth grade?

Ms. Clark: Yeah third or fourth.

Ms. Upadhyava: Did have a view on a grander scale, or on a more substantive scale about

integration and civil rights, or were you really thinking more at that point in

time that you just don’t understand why it would make any difference and you

wanted to stay in school, were you at that time developing any views on

segregation, or integration, or the Civil Rights Movement to the extent that it

was really truly taking shape at Charleston at that time, I mean you’re in fourth

grade I’m not, I’m assuming you’re not marching at that time, or anything…

Ms. Clark: No.

Ms. Upadhyava: But how were you looking at the world? I mean was it really, I want to stay

in school, what’s the big deal, or were you starting to form any views?

Ms. Clark: I mean certainly the thing I remember most is just the thought is how absolutely

unfair it would be that I wouldn’t be able to go to school if the courts required

integration of my school. And I remember just being generally puzzled by why

there was this rigid segregation, why you know: “mommy why does it say

colored water here?” You know what I mean, it made no sense to me as a child.

And my mother never manifested any prejudice, so I think I kind of channeled

her views to the extent that it left me just kind of puzzled. Why would anybody

think that this would be a reason? And I would watch the school buses go by

with all the black children in them and wonder, you know, why they would

have to pass my school and go somewhere further away? And I was generally

aware that the schools for black children were not as good as ours were, um,

and I can’t remember how I knew that, I certainly have never been inside one.

But somehow, I knew that.

Ms. Upadhyava: I’m sorry go ahead.

Ms. Clark: Yeah, no, it may just be that there was sufficient news coverage during that

period of time of the background of the Brown versus Board of Education and

the cases that followed it, but I was aware that people were saying, no no, these

children didn’t have good schools. Not that ours were great, ours were rather

pathetic too, but theirs were much worse.

Ms. Upadhyava: Do you remember Brown versus Board coming down or do you

remember?

Ms. Clark: I think I was too young for that decision itself, because I think it was 54’ wasn’t

it?

Ms. Upadhyava: Yes.

Ms. Clark: Because I was only six then.

Ms. Upadhyava: Right. I think it was ’54 or ’56. I think it was ’54.

Ms. Clark: Yeah, it was really the cases that came after that I remember hearing.

Ms. Upadhyava: All the implementation cases. Was there…did your teachers ever talk about

integration?

Ms. Clark: I don’t think so. I don’t remember any of them talking about it. I remember a

lot of news about Little Rock. I remember news about sit-ins at lunch

counters. Lunch counter was something that I was very familiar with because

our Walgreens that we would visit from time to time had a lunch counter and

my mother would sometimes take us in there if we were downtown buying

school clothes and have a milkshake or a coke float. I remember those, so I

knew about the lunch counters and so I, I mean that was something that

definitely resonated with me, at least the idea of it. People were being turned

away and being told they couldn’t sit there and they couldn’t order food just

like we would.

Ms. Upadhyava: Would you, where would you place your family in the social-economic

scale?

Ms. Clark: Lower middle class.

Ms. Upadhyava: Okay, for the duration of your upbringing?

Ms. Clark: Yeah, there was rarely any discretionary income, you know it was my father

made enough that there was always food on the table, we always had clean

clothes. You know, my mother could keep house very well, but nothing fancy

and but my father supplemented our diet by fishing and hunting. I mean, he

brought dead animals, you know he would go out and shoot things and bring

them home and that probably made up a third of the meat that we ate. So it

was always a matter of, you know budget was always a matter of real concern

to my mother and my father. Can they afford this? Can they afford that?

Ms. Upadhyava: Did your mother work again after she was fired?

Ms. Clark: Not until my father went to Vietnam and she worked briefly while he was

overseas then.

Ms. Upadhyava: What did she do?

Ms. Clark: She took an office job. I don’t know if it was bookkeeping or reception or

something. She didn’t type, so it couldn’t have been typing. And that didn’t last

very long because the owner of the business, it was a very small business,

decided and I didn’t know the word sexual harassment at the time but I guess he

thought that with her husband overseas, she was probably fair game and he

would and I mean literally chased her around the desk. Literally chased her

around the desk and she tried to get away from him and she just said enough of

this I quit. So that didn’t last very long at all and then she mostly filled up her

time with babysitting, taking care of other people’s children on short term basis

until he came back, but he never wanted her to work when he was at home.

Ms. Upadhyava: Whoa.

Ms. Clark: And that was a part of the arrangement.

Ms. Upadhyava: What a deal. So you left Charleston in the ninth, partly into the ninth

grade?

Ms. Clark: Right.

Ms. Upadhyava: And the schools never were integrated?

Ms. Clark: Never, never. Now, I’m sure they were after we left but they weren’t before

that. So that was 1960 or 61.

Ms. Upadhyava: Wow, you know when you think about Brown vs. Board in those years that

followed, it’s unbelievable how long it took to implement.

Ms. Clark: In those areas where there was such strong resistance, it took an enormously

long time.

Ms. Upadhyava: Do you recall any discussions about segregation in church?

Ms. Clark: No, the churches were just as segregated as everything else. There were

black Baptist churches and there were white Baptist churches.

Ms. Upadhyava: Let’s take it to a different line of I guess of discussions of church. Did your

church leaders, ministers ever discuss integration or segregation or share

views on those topics during their sermons?

Ms. Clark: I don’t remember it. You know, the one thing that I remember of that sort was

during the 1960 presidential campaign when our minister, who in every other

respect seemed to be a generally enlightened person, preached multiple times

about what a terrible thing it would be to have a Catholic as a president. And I

thought that was just bizarre. I could not imagine how it could make a real

difference in our government if our president were Catholic. I didn’t believe for

a minute that he was going to be on the phone to the Pope asking instructions

which was sort of the way people put it in those times.

Ms. Upadhyava: Right, right.

Ms. Clark: So that’s the only thing I remember of that kind of prejudicial thinking

showing up in the church, but it was just as racially segregated as the schools.

Even events that as a teenager I would attend where there were people from

lots of different churches in the area attending were always white only. I

cannot recall ever encountering someone of African-American descent

involved in those programs in any capacity.

Ms. Upadhyava: Were there any Latino families in the area at the time that you can remember?

Ms. Clark: No, not in Charleston. When we moved to Texas, I encountered people from

Mexico for the first time.

Ms. Upadhyava: Anecdotally, any discussions among family friends in church or your friends

in church talk about segregation or integration? And what I’m trying to get at

here is were people vocal about keeping the schools, the churches, public

accommodation segregated or was it simply the way things were? That’s what

I’m trying to understand.

Ms. Clark: I’m sure that my father wasn’t the only one voicing his views –

Ms. Upadhyava: I’m sure he wasn’t.

Ms. Clark: – in favor of preserving “our Southern way of life.” I don’t remember any other

specifics. I certainly, I don’t remember anybody else saying they were going to

take their children out of school if the schools were integrated, but no it was, but

it was definitely the way that people in that community at that time thought this

is the way things should be, it’s the way they always have been and it’s the way

it should continue to be and. Did Strom Thurman start running for office in

those, he must have already been in office.

Ms. Upadhyava: That would have been 1954 at the earliest, I would think so.

Ms. Clark: Yeah, I think so. My family was not political. My mother always voted.

My father sometimes voted but political issues were not a huge topic of

discussion in the house.

Ms. Upadhyava: Do you know how they voted? Were they a member of any particular party?

Ms. Clark: They weren’t really but I think my mother generally voted Democrat. Certainly

in her later years she did and of course in those days there really weren’t any

Republicans in the South so it was more like the race was decided in the

Democratic primary and then whoever won the Democratic primary would be

elected. That certainly was the way it was in Texas when we moved there and

when I started becoming aware of Texas politics.

Ms. Upadhyava: So let’s go back to your mother’s first job. How do you know about that? I’m

fascinated by your detailed knowledge of some of the events –

Ms. Clark: She told me.

Ms. Upadhyava: – of your parents. So tell me about that event and how did you, when did you

learn about it?

Ms. Clark: You know I think it was just kind of part of the family narrative that she would

say that when she got married it was hard enough to keep her job then but I’m

sure that she was protected to some degree because so many of the men were in

the service, so the newspaper had to keep women on the payroll. Who else was

going to be doing their bookkeeping, right? But it was just, when she would

talk about how she came to move to Horton when my, when she was pregnant

with my sister and why she was there, because Kansas was just totally out of

the whole family history right? I mean you got all of these Southern places

where everything else of importance happened and my sister was born in

Horton, Kansas. Well, why were you there, mom? That’s kind of the narrative

included that she was fired as soon as she got pregnant so she didn’t have any

income, she couldn’t support herself and her sister invited her to come and live

there and that’s what she did.

Ms. Upadhyava: Where did, how did her sister get from Waco to Horton?

Ms. Clark: She was married to a preacher and I assumed he had a congregation in

Kansas at that time. They also lived at various times in Colorado and in

Washington State.

Ms. Upadhyava: And your two uncles? On your maternal side.

Ms. Clark: One of them was in the navy and spent most of his life up in the Seattle area. I

never met him. The other one was a missionary for years in Indonesia and

moved back to the States when he and his wife retired and he now lives in

Tennessee.

Ms. Upadhyava: Whereabouts in Tennessee?

Ms. Clark: You know he moved recently and I’m not sure of the name of the town. I

have been trying to get the address.

Ms. Upadhyava: I grew up in west Tennessee for a part of my childhood.

Ms. Clark: I think it’s northern Tennessee, so for some period of time I think it

was Jackson, Tennessee.

Ms. Upadhyava: Jackson, Tennessee was about ten miles from where I grew up.

Ms. Clark: Oh really?

Ms. Upadhyava: I grew up in for a small period of time in Trenton which was very small and

then the next biggest town over was Humboldt and then Jackson was the city.

Ms. Clark: Oh wow. That’s funny.

Ms. Upadhyava: Yeah Jackson was kind of more, yeah that’s, I’m curious. It helps me to

understand kind of the areas because I do think that places really do influence

individuals as my personally held belief but your mother’s job, do you know

the newspaper’s name?

Ms. Clark: The San Antonio Light.

Ms. Upadhyava: And how did she tell, how does she tell the story? If she were sitting here and

telling me the story, how would she relate it?

Ms. Clark: You know, I think years ago she would have related it more or less matter of

factly. When they found out I was pregnant, they fired me. They weren’t going

to have any pregnant women working there. And she would describe it, she

thought it was unfair. She could certainly continue doing the work for quite a

while longer but she didn’t tell it with any tone of outrage. “How could they

possibly do this?” But as she got older, and of course the values of our society

moved in the direction of that’s wrong. Then, she did once or twice describe this

and say, and describe it then with a tone of outrage how could they do this. How

could they think that that was right thing to do and how much better the world

would have been if they hadn’t done things like that? And she was certainly

outraged when, in the sixties when the boss was chasing her around the desk and

she just said I’m not going to put up with that. I hate to give up the job, it’s a

nice job but I’m just not going to do that. So that was years before there was any

sense in the law that this is wrong and should not be tolerated.

Ms. Upadhyava: So the years that she’s in San Antonio working for the San Antonio Light,

roughly ’43 ’42. If they met, if your parents married in ’43, it would have been

probably sometime in ’41 ’42.

Ms. Clark: Might have been, yeah.

Ms. Upadhyava: And I take it, she accepted the termination and moved on, I mean there’s no.

Ms. Clark: There was nothing she could do. There was no equal employment law.

Ms. Upadhyava: Do, I’m sorry.

Ms. Clark: But yeah, she accepted it. She said okay, so what do I do now. Here I am,

pregnant. I’ve lost my job and my husband is overseas. She may well have had

some allowance from his salary. That was common for families on the homefront

but she did not have enough to live on her own in San Antonio and I

guess that was when her sister stepped in.

Ms. Upadhyava: Do you know how they found out she was pregnant?

Ms. Clark: No.

Ms. Upadhyava: Does she ever talk about that?

Ms. Clark: I don’t remember her ever telling anything about that.

Ms. Upadhyava: When was the earliest that you can remember her telling you about this event?

Ms. Clark: A long time ago.

Ms. Upadhyava: Before you went to college or law school?

Ms. Clark: Oh yes absolutely. It was just as I say just a part of the family lore. Why was she

in Horton, Kansas when my sister was born?

Ms. Upadhyava: People often ask why is anyone in Kansas. I get to say that as a person from

Missouri. What was your father’s reaction? Did he, do you know, do you recall

him ever having a reaction to this event?

Ms. Clark: I don’t remember him ever speaking about it. No, I don’t.

Ms. Upadhyava: Did you. How do I put this? Did that part of your family narrative have any

impression on you and did that change as you grew older?

Ms. Clark: Well, I certainly internalized my mother’s sense that it was unfair and I could,

even as a child, I could see that there’s no reason why a woman in early

pregnancy couldn’t do a desk job. It just didn’t make sense to me that they

wouldn’t allow her to continue to work. But you know there were a lot of

things that were unfair about the way women were treated in those days. It

wasn’t as bad as the way the African Americans were treated in Charleston,

but it was, you know I grew up thinking the only career choices are teaching,

being a nurse or being a secretary. And my mother’s attitude was well of

course you should have some career because you might need to support

yourself if something happens to your husband. I mean, that was what she

would say to me when I was a young, you know 9, 10, young teenager or

whatever, that was her view really even when I went off for college.

Ms. Upadhyava: Was that a divergent for you?

Ms. Clark: No, I don’t think it was. I think it was really not common that there were

women that we knew who worked outside their homes. One or two of my

friends’ mothers worked outside the home. Not many. Most were at home

when I would go over to play with my friends but there were one or two that

worked and there was a housekeeper at home minding the children and doing

all the housework. But it was definitely the exception not the rule and they just,

the norm was very definitely for women who were married to be the stay at

home mother and keep house. So, you know I saw my teachers of course, I saw

them all the time and most of them were married. Many of them had children,

but of course they were in this bucket called teachers and the nurses that we

would see when we would go see the doctor were in a bucket called nurses.

And of course they were all women. I don’t know that I ever encountered a

man who was a nurse until I was possibly in high school.

Ms. Upadhyava: What was Anna Beth like or what is Anna Beth like? Is she?

Ms. Clark: She is deceased now.

Ms. Upadhyava: Okay.

Ms. Clark: She was not as much of a scholar as I was. She didn’t love school. She would

do what she had to do to keep a passing grade.

Ms. Upadhyava: Did she go by Anna or Anna Beth?

Ms. Clark: She went by Pepper.

Ms. Upadhyava: Okay.

Ms. Clark: She preferred Beth to all of those other names, but she was Pepper which was

the nickname my father gave her when he came back from Guam and didn’t

like Anna Beth as a name.

Ms. Upadhyava: And where did the nickname Pepper come from?

Ms. Clark: The story is that she had, if you ever looked at a Dr. Pepper cap, it has 10, 2

and 4 on a kind of clock face which is said to be the hours when you should

be having a break to have a Dr. Pepper. And according to my mother, her

feeding schedule was something close to that and so my father nicknamed

her Pepper. Dr. Pepper first and then went to Pepper. That’s how I got Penny

as a name, it was very similar. When I was born, according to the family

story, my father had nothing in his pocket but pennies and his view was that

all children needed a nickname so he nicknamed me Penny. My birth

certificate is Julia Clark, no middle name, but when I started school, they

had Penny added as an official middle name and so the birth certificate copy

that I have is Julia typed, Penny handwritten, Clark typed. It was just, I don’t

know.

Ms. Upadhyava: I have never heard of someone with an amended birth certificate. I love it.

Ms. Clark: Well I’ve got one and it’s amended.

Ms. Upadhyava: I would want to see it.

Ms. Clark: Oh, I’ll bring it to you. It’s the old white on black reproduction style and

it’s Penny handwritten in there.

Ms. Upadhyava: Did you like that name?

Ms. Clark: Penny?

Ms. Upadhyava: Yeah.

Ms. Clark: Oh sure, I was fine.

Ms. Upadhyava: I mean did you have a-

Ms. Clark: Unlike my sister.

Ms. Upadhyava: Unlike your sister, okay.

Ms. Clark: She never liked Pepper as a nickname. I was perfectly happy with Penny, it

was fine. I seldom used Julia until you know law school and even maybe when

I signed up for my law license. I thought let’s see should I fill in the whole

name and I thought, yeah, I think I’ll better, so I put the whole thing in there.

Ms. Upadhyava: Does anyone call you Julia?

Ms. Clark: Only people who don’t know me. My husband used to laugh back before we

had caller ID and could figure out who was calling before we answered the

phone. If somebody called and asked for Julia Clark, he would automatically

say she’s not here because he knew it was somebody I didn’t know and

wasn’t interested in talking to.

Ms. Upadhyava: Did you get along with your sister?

Ms. Clark: Not very well. My father had a bad habit of playing favorites and I was his

favorite and that was not a good thing. It was really very destructive in the

family and when she grew up, she married right out of high school and moved

away and was kind of distant from the family for the rest of her life. After my

mother died, Beth and I would have phone conversations pretty regularly

which was just astonishing and new because other than that I think sometimes

we would go for years without hearing from her and I would send her cards

and letters and hoped she would respond but she often didn’t.

Ms. Upadhyava: Where did she live?

Ms. Clark: Louisiana. She moved to Pineville, Louisiana which is right in the middle of

the state.

Ms. Upadhyava: Do you have any nieces or nephews?

Ms. Clark: I have two nephews and I stay in touch with one of them and the other one I

hear from occasionally.

Ms. Upadhyava: When did she pass away?

Ms. Clark: 2011. She had a massive stroke at, right after her 65th birthday and she lingered

in a kind of a twilight condition for eight months and then died.

Ms. Upadhyava: Sorry to hear that.

Ms. Clark: Yeah, thank you. No, it was a hard way to lose somebody. Her oldest son is

the one I stay mostly in touch with. We were allies in that period of time in

trying to sort through legal problems and get Social Security benefits to help

support her in nursing homes and things like that.

Ms. Upadhyava: Your parents, are they both deceased?

Ms. Clark: They are.

Ms. Upadhyava: May I ask when they passed?

Ms. Clark: My father died in 1983 of lung cancer. He was a lifelong smoker. My mother

died in 2008. She just wore out. She was in her mid-eighties and she had a

variety of chronic health problems like high blood pressure and the like and it

just finally caught up with her.

Ms. Upadhyava: Were they together until your father’s death?

Ms. Clark: They were, yeah.

Ms. Upadhyava: In Texas?

Ms. Clark: In Waco.

Ms. Upadhyava: They stayed in Waco for the rest of their lives?

Ms. Clark: They did. Yeah, they bought a house while I was in my last year of high school

and we still own the house. I’m trying to sell it now. The Waco real estate

market has recovered. It was in the tank when my mother died and there was

no way to sell the house at that time, but yeah, it’s, they stayed there.

Ms. Upadhyava: Your mother’s stint, I’m sorry I’m coming back to this but your mother’s stint

at the San Antonio Light, was it consciously any influence on you at all in

deciding what path you were going to take in life?

Ms. Clark: No, I don’t think so. I’ve come to have a real appreciation for how adventurous

she was to do that, but as a child I didn’t really understand what a big step it

was for her to leave the small town where her parents were and go to San

Antonio which was you know not a big city as it is now but it was a pretty big

city and live in a boarding house and go to work on the street car everyday

which is the way she described it. And not long ago I was going through a

scrap book she kept during that period of time and saw train tickets to a church

conference she went to in Mexico and I was just astonished. I thought here is

this young woman on her own that she would do something that adventurous

was really quite striking to me. She was a strong person and that certainly had

an influence on me that she was intelligent and she was strong and you know I,

so yes in the sense that I didn’t feel like anybody was telling me I couldn’t do

anything. And despite the fact that my parents had rather low expectations for

what I might be able to do with an education, they were supportive, they were

very much in favor of my going to college, and very much in favor of my going

to law school, except it kind of ended my father’s dream that I would come

back to Waco and teach school, but then he shifted that to a dream that I would

come back to Waco and be a lawyer.

Ms. Upadhyava: And practice law. [Laughter].

Ms. Clark: But you know, it, they really, they were really supportive, and never, I mean I

knew that I was going to find a way to finance it myself.

Ms. Upadhyava: Umhum.

Ms. Clark: And fortunately, state school in Texas is very inexpensive, or it was at the time.

And I was able to get some scholarships that helped, and so I came out of

college with zero debt, and law school I think I owed five thousand dollars

when I left law school. So, I worked part time through college, I knew that one

could work your way through school, that was my, that was sort of the pattern I

had in mind. My uncle, the missionary, had worked his way through college.

And I, again, that was part of the family lore, so, I knew that could be done,

and that was my strategy. I had enough in scholarships to get through most of

my first year in college, and I toward the end of the year, I found a part time

job typing for a group of orthopedic surgeons.

Ms. Upadhyava: Reports, medical reports?

Ms. Clark: Right. They would, after seeing every patient, they would dictate a report of

their examination of the patient. And, I was one of the typists to transcribe

those reports, and I worked at that job until I graduated from college. And

sometimes I was working close to forty hours a week. You know, I just fit it

in my school schedule. I mean I had really flexible work hours. They were

very, very good. They never objected if I wanted to come in at night, and

type some dictabelts at night, I could pick my own hours, weekends no

problem. there are a couple questions, more questions I want to ask you. And

then I know, I know I promised to try to get you out of here 20 minutes ago.

Ms. Clark: Ok…yeah, no it’s fine. I actually, some nights I would be saying I have to run

and catch a bus at the other end of my subway ride, but I have a car parked at

the subway station.

Ms. Upadhyava: I’ll ask you a few more questions because what I’d like to do is, I’d like to talk

about the move from Charleston to Waco, during our… start with that during

our next session and go in a little bit more into the college experience. I’m

really interested to know what happened and how life changed. Um, I’m

surprised to hear you say that it was less segregated in Waco than it was

Charleston, to be honest with you.

Ms. Clark: I never saw the signs, the white and colored signs in Waco not that I

remember. The schools were definitely rigidly segregated, as were the

churches. There were no, just no one in our church who wasn’t white skinned.

Right, that was, in fact some people say that churches now are probably the

most segregated institution in this country. Although, my church is not, it’s got

a very nice variety of ethnic groups there, which I like.

Ms. Upadhyava: And you’re still are member of the Baptist Church?

Ms. Clark: No. I go to a Presbyterian Church now. But, yeah, I mean you know Waco,

from one thing there weren’t as many African American people in Waco. It’s

not as large a percentage of the population as it was in Charleston, I wouldn’t

be surprised if somebody told me that there was an African American majority

in Charleston when we were living there, it could well be. Certainly, in the

older downtown areas of Charleston whenever we would go down there to

Sears. We drove through neighborhoods that were completely African

American and it was a very, if they were minority, it was a very substantial

minority so approaching half. Texas not nearly so much and particularly Waco

which is right in the middle of Texas so it’s not the southern part. Galveston

probably has a high, even Houston has a higher percentage of African

American population but Texas, central Texas as they called it, was more

substantially white with some percentage of people from Mexico, Mexican

Americans, what did they call them then? Probably just said Mexicans, but of

course most of them were born there in Texas and not in Mexico.

Ms. Upadhyava: No that’s not Mexico.

Ms. Clark: Yeah, and I had high school classmates who were from the Mexican

American community. I ran into them mostly in Spanish class.

Ms. Upadhyava: Did you, the incident with your mother where her boss literally chased her

around her desk happen when you were in high school?

Ms. Clark: Yes, yes. I think I was probably a junior in high school at the time.

Ms. Upadhyava: And let’s I guess end with that if you could tell me what you remember about

that I think we could close the session. I want to know about please if you

could tell me what your time as opposed to – in the house.

Ms. Clark: Right, right I’m the person in the house and it was just the two of us. My

sister was married by then.

Ms. Upadhyava: Had already left, okay.

Ms. Clark: And so it was the two of us in the house together and she came home one day

and she said I’ve quit my job. And I said so, I mean she was clearly upset and

that’s what happened and she said well this guy had been making inappropriate

comments, I don’t remember exact words. She would have been very delicate

about it because I was still innocent and naïve to know that.

Ms. Upadhyava: What grade were you in? Do you remember?

Ms. Clark: I think I was a junior in high school.

Ms. Upadhyava: Okay.

Ms. Clark: And I do remember her saying you know he was trying to hug and kiss me and

I moved away from him and he came closer and I moved away and she said he

was literally chasing me around the desk. I mean it was at some point kind of

comical because you don’t think of your parents as sexual beings, right?

Ms. Upadhyava: Yes.

Ms. Clark: And yet she was very upset because she really liked the idea of working while

my father was overseas and having something to do as well as having a source

of income and you know I could just, I never met the man who was her boss

but she hadn’t been there very long. I don’t remember quite how long, maybe a

few weeks.

Ms. Upadhyava: Was she crying?

Ms. Clark: I don’t remember her crying at that, when she told me about that.

Ms. Upadhyava: What was your reaction?

Ms. Clark: Well this is terrible, you know, why would he do such a thing? And if, but

obviously it was just I think just the two of them in the office. I don’t think

there were any other employees in the office. I don’t even remember what kind

of business it was, but there was nobody that could protect her. There was

nobody she could turn to to say you know can you, can I tell him to stop? You

know, nobody who was going to say don’t do this.

Ms. Upadhyava: Did she tell your father?

Ms. Clark: I don’t know. I’m sure she had some explanation for him for why she quit but

she might have been, I mean he was in Vietnam, it wasn’t like he was going to

go down with his shotgun and shoot the guy.

Ms. Upadhyava: Right.

Ms. Clark: But she might have been concerned about him doing something

inappropriate when he got back. She may not have told him, I’m not sure.

Very interesting.

Ms. Upadhyava: Did you ever tell Pepper or did you not have much of a relationship with

her at that point?

Ms. Clark: She was still living very close to us at that time. I don’t remember a

specific conversation, but my mother probably did tell her.

Ms. Upadhyava: And was there any discussion of let’s do something about this?

Ms. Clark: No.

Ms. Upadhyava: Or any notion that something could be done?

Ms. Clark: No notion that anything could be done other than to quit. You know, it was like

he’s the boss in control, if he’s done this once he will do it again. She certainly

had no confidence that she could draw a hard line and say absolutely do not

touch me, and, she probably could not have succeeded in that if that was his

mindset.

Ms. Upadhyava: What’s remarkable to me is that in the, I guess it would be 1960 to ’61 right?

In that time period that she quit after-

Ms. Clark: Yeah, probably the fall of ’63.

Ms. Upadhyava: Okay. There are individuals who endure as you know that type of harassment

for…

Ms. Clark: Years.

Ms. Upadhyava: Months, years and don’t quit and so it’s quite remarkable to me that during

that time period-

Ms. Clark: Well she was just you know–

Ms. Upadhyava: Being, you know while your father was away-

Ms. Clark: But I mean her values were this is just wrong, this is wrong and you know she

was not going to allow another man to touch her. That was very clear. I mean

hugs from the pastor yeah but not anything like this and I mean she really, I

mean in that sense as I said she was a strong woman and she had very strong

morals/values and there was no way that she was going to leave herself in that.

And you know to be fair, it was not like many women who don’t have a choice

because they need the income, they’re absolutely dependent on it. Maybe

they’re the sole support for their families, she had a check coming from my

father every month and you know it was sufficient to support us. Really her

main reason for wanting to work as I understood it at the time was that she

wanted to have something to do, I was in school all day. It wasn’t like she was

needed in the house and she just felt that she wanted something to do and not

be there alone all day long.

Ms. Upadhyava: Nevertheless I, it strikes me if you put, if I put myself in the time and place that

that event occurred that’s remarkable.

Ms. Clark: It is.

Ms. Upadhyava: And strong.

Ms. Clark: It is and I sometimes wonder if that colored or made a difference as after my

father died there were a number of years when she was still quite healthy and I

always thought she would probably be happier if she found a job that she could

do and she was a personable woman. She could have been a receptionist in a

doctor’s office, you know there were any number of things she would have

been very good at even without typing skills. And she never even looked for a

job and I sometimes wonder if it was because of that experience that she felt

you know it’s, she would be exposing herself to that kind of inappropriate

behavior if she went out and found a job but she never did look for a job and

she did a lot of church work after my father died but that only takes up so

much time. There’s just really, she spent a lot of time in her house alone and I

think she would have been healthier and happier if she had done something

else but no she never did.

Ms. Upadhyava: The repercussions of things like that are very strong. I understand it.

Ms. Clark: They are.

Ms. Upadhyava: Well may we close out this session then?

Ms. Clark: Sure, sure.

Ms. Upadhyava: Thank you, thank you. Time is 7:17 and a half hour after I promised Ms. Clark

we would end.

ORAL HISTORY OF JULIA PENNY CLARK

Second Session

December 15, 2015

Ms. Upadhyava: It’s December 15th at 5:40pm at the offices of Bredhoff & Kaiser. We are

celebrating Penny Clark’s fortieth anniversary at the firm today. So I’m going

to start with asking Penny a little bit about her anniversary with the firm and

then we will go back to resuming sequentially the taking of your oral history if

that works for you.

Ms. Clark: Sure!

Ms. Upadhyava: So is today your actual fortieth anniversary.

Ms. Clark: It is! By my recollection, I started on December 15th 1975. Now my office

manager says that her records show that I started on December 1st but I know

it was not the first day of the month. So somebody must have just put

December 1st for who- knows-what reason, healthcare coverage, or

something.

Ms. Upadhyava: Right.

Ms. Clark: It was December 15th 1975.

Ms. Upadhyava: And… did you start as a Summer…, as a first-year associate?

Ms. Clark: I started as an Associate. I had had two years as a federal law clerk so they

gave me credit for that time. I mean it was such a small firm, it’s not like there

was a tenure track and I had to be in step with anybody else but I was

considered, I guess, a third-year associate for that reason.

Ms. Upadhyava: Are you a partner with the longest tenure at the firm?

Ms. Clark: At the moment I am! Yes

Ms. Upadhyava: Congratulations.

Ms. Clark: Everybody ahead of me has retired.

Ms. Upadhyava: Ok…. [both laugh lightly] And what will you be doing….will the whole firm

be joining you for dinner tonight?

Ms. Clark: No,…we invited some of the people who were here when I started just to keep

it as a small group, and so I’m looking forward to seeing people who I thought

of as my mentors and who taught me most of what I know by way of how to

practice law.

Ms. Upadhyava: Do you keep in touch with your mentors…

Ms. Clark: Oh yes

Ms. Upadhyava: for the most part?

Ms. Clark: Yes yes. So these are Michael Gottesman who is a Professor of Law at

Georgetown Law School now; George Cohen who after he retired from the firm

was head of the Federal Mediation and Conciliation Service and is now retired

from that; and Bob Weinberg who is retired from the firm.

Ms. Upadhyava: That’s wonderful.

Ms. Clark: So they’re all great lawyers.

Ms. Upadhyava: So where will you be celebrating tonight?

Ms. Clark: The Equinox.

Ms. Upadhyava: Excellent! Excellent! Well, congratulations! So last time we spoke on our

first session we had discussed your upbringing in mostly in Charleston,….

Ms. Clark: Mhm…

Ms. Upadhyava: and.your move to Waco in the ninth grade, partially into the ninth grade.

Ms. Clark: Right

Ms. Upadhyava: A we talked a little bit about the differences in culture and the fact that Waco

was not as overtly a culture

Ms. Clark: Racist is the code word you can use it.

Ms. Upadhyava: Racist.

Ms. Clark: [laughs]

Ms. Upadhyava: Thank you. Even though it was segregated, it was not overtly… the culture

of racism was not so overt. And we talked a little bit about your time in high

school, but we didn’t get too far into it. So I wanted to pick back up there.

We talked about your mother having gone back to work for a short period of

time when you went back to Waco.

Ms. Clark: Yes.

Ms. Upadhyava: And pretty traumatic.

Ms. Clark: When my dad was in Vietnam.

Ms. Upadhyava: Right. A pretty traumatic experience that she had and then she never went

back to work after that I understand it.

Ms. Clark: Right.

Ms. Upadhyava: Your father was in Vietnam…around what grades were you in just to put it

in context while he was serving there.

Ms. Clark: I was a junior in high school.

Ms. Upadhyava: Ok.

Ms. Clark: For the year that he was there.

Ms. Upadhyava: And was he serving in Vietnam or..

Ms. Clark: Yes at Tan Son Nhut Air Force base in Saigon.

Ms. Upadhyava: At the time did you have any views about the war? And about American

service men and women serving in Vietnam?

Ms. Clark: No, it was early in the war that was 1963, and I didn’t, you know, I think…I

had not been very conscious even that there was a war going on before that.

You know if you think back to it, it was ’68 when concerns about the war

caused Lyndon Johnson to step down. This is this is while Kennedy was still

President.

Ms. Upadhyava: Mhm…

Ms. Clark: So August of ’63 was when my father left to go to Vietnam and he came back

in August of ’64. So this is…this is the Kennedy presidency Vietnam War.

And while my father was there, there was a coup that some army group

Vietnamese army bombed the palace and I can’t remember what happened to

the fellow who was president/prime minister – I don’t know what the titles

were – but um…he was he was certainly ousted from office. And the Tet

Offensive also happened while my father was there. So that was really kind of

the beginning of full on combat. The U.S. Air Force was dropping Agent

Orange from the air at the time. My father after he came back would describe

that the planes would come back and they had all this powder all inside

[chuckles] and the powder I’m not sure it was actually orange, I think it might

have been that it was just it had a that maybe the packages were orange, but

there was some connection there but it would come back with all this powder

all over it. Of course the maintenance crews had to clean the planes out. As a

result of that my mother got compensation after he died. He died of lung

cancer.

Ms. Upadhyava: Lung cancer [softly spoken].

Ms. Clark: And initially I guess, he made a claim for compensation and it was denied. She

had made another claim for compensation shortly after he died, and that was

also denied. And then Congress passed a law that provided that anyone who was

in the functions of handling Agent Orange and who died of certain kinds of

cancer would be entitled to compensation without having to prove causation.

Ms. Upadhyava: Mhm.

Ms. Clark: And she made another application and it was granted. And it’s kind of a

digression, but I would not necessarily ever have known about that, except I

was working really late one night here at the firm writing a brief in opposition

to a petition for certiorari, and we had decided, given what time of year it was,

we wanted to get our opp. cert. immediately. We actually filed it the day after

the petition was filed. And I was here with one of my colleagues and we

worked until about 3 in the morning and finished our brief, and I hailed a cab

to get home, and the taxi driver had this radio program on in his taxi that was

talking about this new legislation. And I go “wow!” you know that could help

my mother, and the next day after I woke up [chuckles] I called her and I said –

have you heard about this? – and she said no, and I said well, let’s look into it.

And ..

Ms. Upadhyava: Oh wow.

Ms. Clark: So it’s just one of those amazing coincidences that just kind of hits at just the

right time, just the right place and normally I don’t listen to the radio at 3 in

the morning…

Ms. Upadhyava: at 3 am… [laughing lightly]. Although at that time you just wanna stay up so

I’m guessing you’re attentive to anything that’s being played.

Ms. Clark: Well I would have been happy to go to sleep at the back of the taxi but I’m not

sure could trust the driver to get me home.

Ms. Upadhyava: Right

[both laughing]

Ms. Upadhyava: This would have been the early 80s?

Ms. Clark: It was…

Ms. Upadhyava: Or late 70s…?

Ms. Clark: No. No. My father died in ’83…

Ms. Upadhyava: Echoes ’83…Right.

Ms. Clark: …and this would have been in this would have been in the ‘90s.

Ms. Upadhyava: Oh ok. I see…

Ms. Clark: So ’94 probably.

Ms. Upadhyava: Ok. Did your father, when he was gone, and what was life like without him

there versus when he was home?

Ms. Clark: I had my mother all to myself, which was, for a junior in high school, not a

bad thing.

Ms. Upadhyava: Mhhm.

Ms. Clark: I, you know, we missed him. He was a very lively personality and was always

around kind of keeping things busy. And things were quieter without him. But I

don’t think we were particularly worried about his safety except these specific

events like the coup and the Tet Offensive were brief but that’s before any kind

of electronic communication, so we just got letters after the fact.

Ms. Upadhyava: Mhm

Ms. Clark: He was sick for a brief period of time, something like a.., an antibiotic that he

took caused him to lose his eyesight briefly and they sent him to a hospital

outside of Vietnam so maybe in the Philippines where he stayed for a week,

and recovered his eyesight. So it was a rather strange thing.

Ms. Upadhyava: Did he ever talk about the war with…? I mean, did you ever speak on

phone while he was away or was it just letters?

Ms. Clark: Nooo….It was just letters.

Ms. Upadhyava: That must have been stressful for your family.

Ms. Clark: Sure, no we.., you know the communication, the fastest means of

communication would be either a telegram, or you could call-there was an

office at the Air Force base that was involved in , you know, taking care of the

families back home and we didn’t call on them for very much. But if you

needed to get an immediate communication to the service member or vice

versa, then they had some means of doing it. But I’m sure we never heard his

voice on the phone during that whole time.

Ms. Upadhyava: Was that his last time away in combat duty.

Ms. Clark: It was his last time outside the US, yes, I’m sure.

Ms. Upadhyava: Alright, and did you speak to him while he was away…um (just making

sure that we…ok) did you speak to him um, I’m sorry…when he came

back about his time in Vietnam? I mean, did he talk about it with you or….

Ms. Clark: He had, he brought back boxes full of photographic slides which he had taken

while he was there, and I still have them

Ms. Upadhyava: Oh do you really?…

Ms. Clark: Yeah. And I know he showed us the slides more than once [both laugh],

hopefully, or maybe he was actually sending them back while he was away.

They would come back, he would send the film back and we would have them

developed at home. So we were getting these pictures the whole time and after

he came back, I know that he – you know – would invite over people that he

knew and do a slide show for them and talk about what was in the pictures and

what had been going on there. His own experience was very different from

people who are out in combat because he was at the Air Force base, and except

for some threat with the Tet Offensive, which I think there was some concern

that the North Vietnamese might actually reach the Air Force base. My

recollection is that they didn’t, but it was it was not a…he wasn’t under

physical threat. He was just there at the Air Force base taking care of these

airplanes as they would come back from the combat runs, bombing runs,

spraying runs, whatever and so um, I do remember one this he told us that

General Westmoreland insisted that every time he came back that his plane be

hand-polished with glass wax.

Ms. Upadhyava: Laughs]

Ms. Clark: Now I once mentioned that to an Air Force officer who said “maybe there’s less

drag” [both laugh]

Ms. Clark: And I kind of took that to mean…

Ms. Upadhyava: Maybe…

Ms. Clark: You know… I suppose you could in theory suggest that the airplane might

need it but if that the case then wouldn’t you do that for all the planes

Ms. Upadhyava: That is too funny…all of them.

Ms. Clark: Not only the General’s plane…

Ms. Upadhyava: Exactly, that’s funny…(laughs a little) Did he travel? Did he get a chance

to travel much? Out of the country?

Ms. Clark: I don’t think very much at all. No, I mean he was able to go into Saigon and as

we see took a lot of pictures in Saigon. He had an R & R, whatever – the rest

and relaxation/rest and recreation –whatever it is in Bangkok while he was

there. But I don’t, and other than the trip to the hospital in the Philippines, I

don’t think he did any other traveling.

Ms. Upadhyava: What did, did he have any impressions of the country or his time there, that

he…any strongly held views I guess…let me put it that way that he brought

back with him, or was it really back to business as usual when he came home?

Ms. Clark: It’s hard to say. He was…I would say he was more outwardly religious

when he came back and I don’t know if that’s an effect of having being

there or not.[short silence] But, it wasn’t like him to change his personality

in any way or you know…he didn’t seem to be suffering any kind of posttraumatic

stress or anything. I mean, I think just the nature of his duty was

such that he wasn’t under that kind of stress.

Ms. Upadhyava: I see.

Ms. Clark: I mean, not like people who were actually in combat in the rice paddies.

Ms. Upadhyava: Right. And I assume at the time neither he nor your family or anyone really

knew what the long-lasting effects of any of the chemicals…

Ms. Clark: No of course not

Ms. Upadhyava: …was going to be – I take it – right?

Ms. Clark: No. I’m sure that’s right. Nobody even suspected at that

point in time. It was quite a bit later that we started hearing

about Agent Orange and its effects on both the people who

were on the ground who were sprayed, and the people who

were exposed to it in combat operations.

Ms. Upadhyava: Did he have a job when he came home?

Ms. Clark: He stayed in the Air Force for about another year. Actually I wrote down his

retirement – at least I thought I wrote down his retirement date (looking over

some documents)…no, I don’t think I did. But he was still working at the Air

Force base in Waco through my senior year of high school. And they were in

the process of closing that base, in fact, they had already announced it before he

came home. And he was identified for a transfer to San Antonio, but he said he

didn’t want to take me out of high school in my senior year and move me to a

whole new place. And so he put in his application for retirement. That allowed

him to work at the Waco Air Force Base until it was closed. And at that point

that was when he retired.

Ms. Upadhyava: And so you said that closed during your senior year or after your senior

year?

Ms. Clark: Sometime around, yes, so it would have been around mid ’65. I don’t

remember precisely when but it was some point about that time.

Maybe even late ’65.

Ms. Upadhyava: Now, he came home from Vietnam, and just a couple of months, a few

months later, President Kennedy was assassinated. Do I have the time

correct?

Ms. Clark: The assassination was while he was in Vietnam.

Ms. Upadhyava: Ok…

Ms. Clark: It was November of ’63.

Ms. Upadhyava: Ok. Do you have a memory of that?

Ms. Clark: Oh yeah. Absolutely.

Ms. Upadhyava: Do you want to share with me what you remember?

Ms. Clark: I was in my government class, and they broke in on the loud speaker to say

that shots had been fired in Dallas. I mean I was aware that President Kennedy

was visiting Dallas – it’s kind of a big deal, it’s a hundred miles away but still

kind of close, and um, they broke in to say shots had been fired and I can’t

remember if at that first announcement they said that the President had been

taken to the hospital. And then they kept coming in with more updates, kind

of every few minutes about something new. And and… I remember the

announcement (in a whisper – you think after all these years it wouldn’t be

this emotional)…I remember the announcement that he had been given

Catholic Last Rites, and there was one Catholic student in my classroom and

she said that – “that means he’s dead”. [trying to control the tears] And then

everything just kind of fell apart. I think they dismissed class…they..we had

an entire weekend, where there was nothing on television but all of the funeral

related events. And I remember being in the house by myself. So my mother

may have been baby-sitting for somebody, maybe doing church activities –

I’m not sure – but I remember being in the house by myself and just watching

endless broadcasts of all of the ..you know…everything you know – Jack

Ruby coming in being shot, I mean, I was watching the TV when he was shot,

the arrest of Lee Harvey Oswald, the coming in with bits and pieces of

information about who he was, and that he had travelled to Russia, and that he

had travelled to Cuba. I mean, all these things which were just kind of

coming, you know…you may remember September 11, 2001.

Ms. Upadhyava: Sure! Of course!

Ms. Clark: Then it’s the same kind of thing with just bits and pieces coming and you

know…and broadcasters on air crying. And then the funeral which was really

moving. Both the service in the Cathedral and the parades, and you’ve seen all

the pictures…I’m sure one time or another. But it was like from Friday midday

which is when all the shooting took place until certainly all the way

through Sunday and there was nothing else on television except the coverage

of these events. That was back in the day when there were only 3 broadcast

stations. We didn’t have cable, we didn’t have the variety of things that might

otherwise have been available to provide distraction…not that anybody I knew

wasn’t just glued to the TV, we were glued to the TV we were watching all of

these events and everything that had happened. LBJ being sworn in, and flying

back to Washington and all of the things that were happening during that

period. Not that long ago I read the 4th Volume of Robert Caro’s The Years of

Lyndon B. Johnson – one of the wonderful biographies. I’m particularly

drawn to them because of the Texas connection but that was the volume that

described the shooting and his stepping into the Presidency and it’s a powerful

book. It’s really powerfully written. I couldn’t put it down. [laughs…] One of

those things where you read much later at night than you intend to or should.

Ms. Upadhyava: Right, right. Why does this have such an effect on you at this time do you

think?

Ms. Clark: You know…I was…I was…fascinated with President Kennedy. You know…it

was the whole Camelot, the glamor, the…I mean… he conducted the wittiest

news conferences. I mean he would just parry these reporter’s questions in

charming ways and Jackie was so beautiful. I think…I mean…I’m sure there

must have been people who didn’t like the Kennedys, but I just found them

particularly appealing, and my first kind of making a connection with them

and…– I always think of this as really funny – we were still in Charleston

during the campaign and I was in 8th grade, and the social studies teacher

wanted to have mock presidential debates. Because for the very first time that

anybody was really aware they were holding these Kennedy- Nixon debates –

on TV. And we could watch them and sort of keep track of what the issues

where they were debating. And so the teacher says, “we are gonna have

presidential debates, who wants to be Kennedy?” And nobody volunteered!

Ms. Upadhyava: [laughs lightly]

Ms. Clark: And I said ok, that’s me I’ll be Kennedy. So I started learning about all of the

issues, and Kennedy’s position on the issues; and the more I learned about him

the more I liked him. And even though the huge sentiment in, at least in my

school was for pro-Nixon, it was a great experience for me, sort of…doing the

debates as John Kennedy, and then I was really, you know…everything about

him and his administration was very appealing. We didn’t know the dark side

in those days,

Ms. Upadhyava: Sure.

Ms. Clark: And all that didn’t come out until years later. But I read Profiles in Courage and

PT109. He was a war hero. He was a very attractive, young, to all appearances,

healthy man. As it turns out he wasn’t all that healthy. But that was not apparent

other than we knew he had a rocking chair because of his bad back, and

generally it was put out that his back had been injured in the PT109 incident as

opposed to it being as a result of the chronic condition that he had.

Ms. Upadhyava: What was the sentiment like about his presidency in Waco? I mean…were

most people supportive of the President?

Ms. Clark: I think so, you know there were space shots going on. They were launching, the

initial, I guess the first… before Gemini, I think they call it the first round of….

Ms. Upadhyava: Mercury?

Ms. Clark: Mercury, right. So they were launching the Mercury capsules and that was

all really exciting and we were doing all these great things. And I don’t

recall experiencing any hostility towards Kennedy and I don’t recall anyone

responding to his assassination by saying “Oh he got what was coming…

Ms. Upadhyava: Right…

Ms. Clark: …or anything like that.” It was really…I think he was very well liked

in general.

Ms. Upadhyava: What was high school like for you in Waco?

Ms. Clark: The school was better equipped than I had had in Charleston. It was a smaller

school than I had been in so there were only about a hundred people in each

class.

Ms. Upadhyava: Mhm.

Ms. Clark: I had been from age 3, I mean this was my thing… I could do book learning, I

could do anything that had to do with reading, I was decently good at math

and science – that wasn’t my strongest point but I had every expectation that I

was going to go to college, and I was just…I mean, I loved it! I really enjoyed

school. And I tried sports – I was never any good at sports, but I did drama, I

did debate partly just because there wasn’t anybody else to volunteer.[both

laugh…] It was just one of those things where I was, had done some of the

drama, and so speech and drama were all kind of under the same faculty

sponsor, and he said, “We really ought to send our girls debate team to district

competition and I don’t have any girl debaters.” And a friend of mine, who

wasn’t really that close a friend until we started debating together, said “I’ll do

it if you will.” And so we volunteered and I started learning all about what

high school debate was like. She and I spent a lot of time together working

through our little cards. Everything was done on cards in those days, you

know…like 3 x 5 index cards, all your little nuggets of information that you

would use, and um, one of the topics was disarmament -I did it two years- one

was disarmament, and the other was Medicare. You know before Medicare

was enacted.

Ms. Upadhyava: Interesting!

Ms. Clark: And we just had boxes and boxes full of our little cards. We did research at the

library, and she was always the opening statement person, and I guess… she

also did some kind of a closing statement…because that could be a set piece.

You know and she felt more comfortable being the one who had a written script,

and she could deliver it with great vigor and drama. And I was the one who did

the counterpunches. So I did all of the rebuttal, and it was great fun! I really…I

really got a lot of pleasure out of that. We won district, at least one year…I think

we won district during both years…

Ms. Upadhyava: Really?!

Ms. Clark: …but didn’t win regionals so…we didn’t go really far in the competition, but

it was…it was great fun! And I, you know, I doubled in on other things, extra52

curricular activities like the high school choir, and high school yearbook even

for a while, newspaper, that was what I did mostly – was the high school

newspapers. So I wrote for the high school newspaper and did the debate and

some drama, and it was a great experience for me.

Ms. Upadhyava: Did you miss Charleston at all?

Ms. Clark: I don’t think I ever did. I don’t recall ever feeling like you know…I’m home

sick for Charleston, I wish I were back there…

Ms. Upadhyava: And did Pepper move away… I guess, would you have been in high school,

early high school, did she move away?

Ms. Clark: She got married in ’63 right after she graduated. I was … That was just

before my father left for Vietnam. And she and her husband, he was also in

the Air Force and was stationed there at the Waco Air Force base. And they

lived there for about a year. Before he… could it have been as long as 2

years? Because he was in Vietnam during my freshman year of college, and

I’m trying to think where they were when I was a senior. [Short pause…] I’m

not sure. They may have moved to Louisiana about the time that I was a

senior.

Ms. Upadhyava: Did you see her often?

Ms. Clark: When, for that first year, they lived very close to us, just 2 blocks away. So we

saw them regularly.

Ms. Upadhyava: Describe your group of friends in high school. Or you know, who your friends

were.

Ms. Clark: Well, they were… (sigh) it was quite a mix of people. There were actually

some who weren’t thinking about going to college. Um, Linda Beth

Cunningham, no, not Cunningham…Linda Beth…it started with a C… Texas is

big for the double names…

Ms. Upadhyava: [laughs]

Ms. Clark: …you know like Linda Beth, Joe Tom, Jim Bob…

Ms. Upadhyava: Laughing

Ms. Clark: That’s not just a joke…Right. Yes. There’s some part of that. I remember some

of the girls I spent a lot of time with were not college bound. Most of them

were. It was not the popular group, it was not the cheerleaders, it wasn’t the

people who dated the football team. It was people who went to my church, for

one thing. Probably, primarily, people who went to my church. But then others

that I had just come to know and it wasn’t a huge group but probably, I would

say maybe about a dozen people that I spent a lot of time with and enjoyed their

company. None of them went to University of Texas, where I went, so except

my debate partner who came a year later. She was a year behind me in high

school and we were actually roommates for a year.

Ms. Upadhyava: Oh really!?

Ms. Clark: Yeah.

Ms. Upadhyava: Did uh, when you…, what was her name?

Ms. Clark: Linda Brown.

Ms. Upadhyava: Linda Brown…and when you debated in competitions were you against

other female competitions?

Ms. Clark: Oh yeah. Rigidly segregated by gender… (Enthusiastically says…) was only

girls’ debate and boys’ debate.

[both laugh]

Ms. Upadhyava: Really?

Ms. Clark: Yes.

Ms. Upadhyava: Ok, interesting. So if you won’t mind putting this period of time, I guess, let’s

talk a little bit about your later years in high school. Um…what was the climate

like in terms of segregation? Or were you conscious of it? Was it something

you were starting to form further beliefs on?… I know you said earlier in your

life, your view was you recall that schools were segregated, and that public

accommodations were segregated, and your reaction, you mentioned in our last

session was, you know….what…you couldn’t really see the point of it, and you

just didn’t see why it was necessary.

Ms. Clark: Yeah, and I was never conscious of public accommodations being segregated in

Waco. Which is not to say that they weren’t. It’s just that they weren’t as

visibly segregated as they were by then I think all the signs had gone down, and

certainly by ’64 – would have been after the Public Accommodations Act was

passed in Congress – ’64 Civil Rights Act. So there was definitely, and I was

very aware of the fact that there were separate high schools for the black

students. And there was talk about how they are going to integrate these schools.

So there was the…you know… the local school district. (In a whisper….) did

our school district have…our school district must have had a black high school.

It’s a very small school district. Texas has these things they call independent

school districts which tend to be, in some places, quite small. This was a very

small one, it was called “La Vega” two words – independent school district –

and it was on the east side of Waco. It was outside the city limits, Waco had its

own independent school district which covered the Waco city limits. So there

must have been at least one black high school in the La Vega independent

school district. But I don’t have a clear recollection, I certainly couldn’t tell you

the name. But so they were making plans, you know….how are we going to go

about doing this, and my senior year there were a small number of black

students who were integrated into my school. In fact, when my daughter and her

husband were home over Thanksgiving, I pulled out my high school yearbook,

because I think they asked me something about that; and I looked and I think

there were three or four black students in my graduating class. And I would have

told you only one. I didn’t remember that there were three or four, but they

were, I mean their pictures were there so quite clearly that was the case. And

then there were a few more in each of the lower classes, and life must have been

miserable for those kids. It must have been just miserable because they didn’t

have any friends except each other…in the school of something like 400

students. And they did not do a very good job of integrating them into the

school. I don’t think, I don’t believe that any of them were in any of my classes.

And it’s not that there was any tracking going on in the classes, but I was taking

trigonometry, that was kind of advanced math, not everybody took math in their

senior year. And I (whispering – what else did I take in my senior year…) other

than Senior English, everybody took Senior English, and…it’s hard even to

remember now. One of them was in the chorus. I had one period a day that was

high school chorus, and there was one black young woman in the chorus.

Ms. Upadhyava: Is that the one student that you mentioned earlier that you remember?

Ms. Clark: That’s the one I remember, yes, yes.

Ms. Upadhyava: Ok

Ms. Clark: But I did… you know, other than the picture of the chorus which was there in

the yearbook, I’m not sure I would have remembered her. But, it was, you

know, I think they were trying to be, as low key as they possibly could

be……and I think in that sense they succeeded. Nobody was protesting,

nobody was boycotting, there wasn’t anything going on of the sort that had

happened that was so awful in Arkansas and Mississippi and Alabama in prior

years. So it was just very quiet in matter of fact. And it was sometime later I

guess I learned that now they were fully integrated and there was no longer any

distinct effort to say we’re gonna have a certain number of black students at La

Vega High School. So La Vega High School became The High School.

Ms. Upadhyava: Do you know if there was any resistance to integration in that school district?

Ms. Clark: I don’t know of any at least at that point. There were certainly

people who were speaking out and saying ‘oh we have to be really

careful about this’, and that’s … that’s sort of what I remember is

people saying that we have to do this carefully so that people

don’t…I don’t know what it is that they wanted to be careful about.

Ms. Upadhyava: (laughs)

Ms. Clark: They didn’t want us white women dating the black men.

Ms. Upadhyava: Sure

Ms. Clark: That was probably the horrors that they all thought in their heads that if oh

no….if they are in school together, they might start forming romantic

attachments and we can’t have that.

Ms. Upadhyava: That would be such… that would be the most horrible thing in the

world! Right?! (Laughs)

Ms. Clark: Absolutely! And and…which why it was surprising to me when I went

back and looked at the pictures in the yearbook and there were actually

some males that they brought in. My recollection would have been that

it was all women in that first year.

Ms. Upadhyava: Really. And they were bused in from other parts of Waco?

Ms. Clark: No, it would have been just within our little school district.

Ms. Upadhyava: Oh just within the school district.

Ms. Clark: So…they probably didn’t have to bus them very far, at all.

Ms. Upadhyava: Ok.

Ms. Clark: Because the limits of that school district were quite small. I mean, there were

people who lived out in the country who had to be bused in much farther than

these kids had to be bused in, I’m sure.

Ms. Upadhyava: How big was Waco at that time?

Ms. Clark: It was about 100,000.

Ms. Upadhyava: Oh so it was quite big?

Ms. Clark: Yeah and where the suburb where La Vega school district is was quite smaller

it’s called Bellmead. But I couldn‘t begin to estimate what its population was,

it was just a lot smaller than Waco.

Ms. Upadhyava: So you graduate in May of 1965?

Ms. Clark: Right.

Ms. Upadhyava: Do I have that right?

Ms. Clark: Mhm.

Ms. Upadhyava: And when did you…did you have an idea when you were in high school

what you wanted to do? I know you said you assumed that you would go to

college, but did you have an idea in your mind of the career that you wanted

pursue?

Ms. Clark: I was thinking about journalism.

Ms. Upadhyava: Okay.

Ms. Clark: I really…you know and as I said I worked on the high school newspaper, and

that was kind of what appealed to me. And I, in fact, started off at a Journalism

School at UT when I started there but it didn’t last very long. I decided that that

really wasn’t for me. So reading, writing, and all of the things that go into a

journalism career was what I had in mind at that time. And I mean, I was just

incredibly fortunate because number one, there was no doubt that I was going to

be admitted to the University of Texas. The admission policy then was that if

you were a valedictorian of a Texas high school then you were automatically in.

Ms. Upadhyava: So you took care of another question I had which is were you valedictorian you

would be admitted no questions asked, right?

Ms. Clark: Yes, and I knew I was gonna be in. I thought about applying to other schools,

and I kind of think now I didn’t apply to other schools, I think I decided that I

knew I could get into UT, and I think I just applied there. I gave some thought

to Rice University but um…, they had just opened to women at that time. And

they were still very much a technical school so engineering and sciences and

math, and that really wasn’t where I wanted to focus. I don’t recall, I mean, we

did a college visit at one point but I think that was because my mother wanted

me to think about Mary Hardin Baylor, which was where my Uncle Leslie, had

attended.

Ms. Upadhyava: I was going to ask about Baylor.

Ms. Clark: Baylor, I just…given that my family was really kind of in that place like this

is what I’m gonna do…, I know I made it clear to my parents early on ‘I’m not

going to Baylor, I don’t want to live at home, and I didn’t even apply to

Baylor.’

Ms. Upadhyava: Really

Ms. Clark: I know she must have made me visit the campus because I do remember

taking a tour of the campus. But I just, you know…no, I’m not going to

Baylor, that’s that.

Ms. Upadhyava: laughs…

Ms. Clark: …which actually kind of distressed one of my best friends because she had in

mind that she and I should go to school together, and her family wasn’t

prepared to pay for her to be living away from home. So she had to go to

Baylor and she was kind of distressed that I wasn’t gonna do it and I said, you

know, I’m not gonna live at home I’m gonna go away…

Ms. Upadhyava: Laughs…

Ms. Clark: Now all of 100 miles to the University of Texas

Ms. Upadhyava: Still a hundred miles!…laughing…

Ms. Clark: Right! It was good for me and um, and the other thing that I was incredibly

lucky about was that the University of Texas system is very very well

financed from oil land. Now in the late 1800s, one of the biggest oil strikes in

the state, was put in trust for the University of Texas System. They had, when

I was on campus – I don’t know if it’s still there – a working model of the

rocker arm, you know the oil pump which you’ve undoubtedly seen when

you’ve gone to west Texas.

Ms. Upadhyava: Yes.

Ms. Clark: They had one of them on the campus as a memorial. So in-state tuition for

the University of Texas was as close to free as it could possibly be. It crept

up a bit while I was in school there but my last year of law school my total

fees for tuition and all the fee…the mandatory fees for one semester was

$125.

Ms. Upadhyava: (laughs and mutters…) Wow!

Ms. Clark: You know…, so what that means is all you had to take care of was your living

expenses and your books. And so, I got a national merit scholarship form the

Air Force, they had a certain number of, at the Air Force foundation that

awarded a certain number of scholarships to National Merit finalists who were

Air Force dependents. The local Air Force base officer’s wives’ club gave me

a very small scholarship, and I had a small scholarship that came from the

University or the state for being a valedictorian in my high school. Those with

a little money from my parents the first few months was enough. I didn’t live

high, I was in a dormitory that was sponsored by the Methodist Church and it

was very reasonably priced. And you know it just didn’t cost very much.

And…and I was really fortunate. So I went through undergraduate school

without incurring any student debt, and for law school I borrowed a sum total

of about $5000 from the state of Texas, which came with a very low interest

rate. And I had it all paid back before I finished my clerkships.

Ms. Upadhyava: (Whispers) Wow!

Ms. Clark: So I just felt incredibly lucky to be in a state that had such a well-financed

public university system. And maybe if I had gone far afield and applied to

Harvard, Stanford or whatever, I might have gotten financial aid which I didn’t

even dream existed. My high school counselor wasn’t well enough informed to

be able to tell me about such things. But I mean it worked out perfectly. I got a

high quality education for almost nothing.

Ms. Upadhyava: Did you like being at UT?

Ms. Clark: I loved UT! Yeah! I was quite .. I mean it was huge, so it was the kind of

school where you have to be a self-starter, or you can just kind of get lost.

Um…but the first two years I was in a small Methodist dormitory with you

know…maybe, a hundred-two hundred young women, and dormitories were

of course segregated by gender in those days, for sure.

Ms. Upadhyava: Yes. And race?

Ms. Clark: You know, I don’t think so. I think… I know, I mean I had close friends

who were identified as Mexican, who were in the dormitory. I don’t

recall there being any sort of division racially visually. University of

Texas did not have a lot of black students in those days, but it did have

some…

Ms. Upadhyava: So it was an integrated University?

Ms. Clark: Yeah. I’m confident of that.

Ms. Upadhyava: How did your parents feel about you moving away? And how did you feel?

Ms. Clark: Ooh… I felt liberated! (Both laugh). I remember in October of my freshman

year, I was on the phone with my parents. It was one pay phone in the

dormitory and you could call home collect, and I was on the phone with my

parents and my father said, “So how about coming home for a visit some

time?” And I thought “visit”? It had not even occurred to me that I ought to go

home and visit my parents.

(both laugh)

Ms. Upadhyava: How long was it?

Ms. Clark: And I said ok…. Alright let’s make some nice big plans for a visit. And then

usually I would take the Greyhound Bus and would go back and forth between

Austin and Waco.

Ms. Upadhyava: I was gonna ask…

Ms. Clark: Sometimes they would come pick me up, or they would bring me back to

Austin after I got home on the bus. I mean, you know a hundred miles is

nothing,Greyhound Bus is easy to do.

Ms. Upadhyava: So a hundred miles, yea.

Ms. Clark: Waco is just about a hundred miles from both Dallas and Austin; it is

squarely in the middle.

Ms. Upadhyava: Ok.

Ms. Clark: So it was not a hard trip, I didn’t have a car for sure. No way I could

have afforded maintaining a vehicle, with the little bit of incomeresources

that I had, but the Greyhound Bus was cheap.

Ms. Upadhyava: And did they have any…did your parents have any opposition to you

moving? I think we have about 5 more minutes and then, I now you have to –

is it 6:45 you have to end or 6…

Ms. Clark: 6:45.

Ms. Upadhyava: Okay we’ll get over in about 10 minutes. Did your parents have any opposition

to you moving away for college?

Ms. Clark: I know my father wasn’t happy about it, and his theme from then on until he

died was ‘when are you coming back to Waco?’ But he didn’t do anything to

stand in the way, I mean, and I credit him with that. You know, he didn’t say

no, and there was never any kind of an argument where I said I wanna go to

Austin and he said no. He just…he respected my choice so, I know he was not

happy but he was prepared to live with it. And my mother never complained

either, other than the early efforts to persuade me that I should go to Baylor.

Ms. Upadhyava: Baylor…(chuckles..). Did your sister go to college?

Ms. Clark: No she didn’t.

Ms. Upadhyava: Ok. Did she…did you have any discussions with her about why she chose

not to go to school? Or why you chose to go to school?

Ms. Clark: No…you know I think it was just that for so long I had been bound in that

direction, that it didn’t surprise anybody around me that I was going to

college. When she graduated from high school I, when she was nearing

graduation, say like for spring of her senior year, um…she wanted to join the

Air Force…and my parents said no. And the only explanation they gave was

that women in the armed services had a reputation for being loose.

Ms. Upadhyava: Laughs quietly…..

Ms. Clark: I think the Air Force would have been fantastic for my sister. You know she

tried to learn to type, she wasn’t very physically coordinated, and she was

never able to type fast enough to be able to do an office job. And she didn’t

really have any specific career ambitions. As it turned out she met her husband

during spring of her senior year and decided to get married, that’s the way she

went. But I think being in the armed services would have been fantastic for

her. And I certainly thought so at the time, partly because of my selfish

thought that she’d be graduating from high school so she should leave the way

I thought big sisters should go away when they graduate from high school.

Ms. Upadhyava: I think we shared that view…coz I have a big sister!

Ms. Clark: Laughs loudly…

Ms. Clark: An idea which I thought was fantastic…but even putting my, taking my head

out of that younger sister-get rid-of the older one phenomenon…

Ms. Upadhyava: Uhuh…

Ms. Clark: …I think…it would have been very good for her. And she never did anything

else until her husband and she divorced in 1975. She had 4 young children, and

she went to work at Burger King, and she worked there until she died in 2011.

And she was obviously a very faithful employee. She was the person who

made the biscuits every morning, and did other things as well. She never drove

a car, she would ride her bicycle to the Burger King every day and work an

early morning shift…you know if you are going to be there to make biscuits by

the time they open…you know she was there by five o’clock every morning.

And that was her life. I think she would have had… she read voraciously. My

nephew and his wife described her apartment at the time that she died, and I

never saw it, but as…there are bookshelves, and there are bookshelves standing

in rows in the middle of rooms, it’s like being in a library. You know there was

just room enough to walk between the bookshelves. And she had one corner

where her chair and the lamp are. And she knows where every book is. She’s

got them all color coded. She’s got them organized. She knows which ones she

has read. And so she spent all of her disposable income on books. And I just

think a wider world would have been fantastic for her. On the other hand then I

wouldn’t have had my nephew and his children which I treasure. But…

Ms. Upadhyava: Hmh…And so she stayed in Waco, for the rest of her life.

Ms. Clark: No no she was in Louisiana.

Ms. Upadhyava: Oh Louisiana. I’m sorry…

Ms. Clark: They moved to Louisiana.

Ms. Upadhyava: That’s where she divorced?

Ms. Clark: Right. And she lived in Louisiana from about…it would have been around

1966-67. She lived there the rest of her life. Various parts of Louisiana but the

longest period of time in some place called Pineville, which is right in the

middle of the state.

Ms. Upadhyava: Let’s talk for just a minute about when you left for Austin. You said you didn’t

come home very much (laughing)

Ms. Clark: Not for a while… (both lightly laugh..)

Ms. Upadhyava: And did you adjust pretty quickly to college?

Ms. Clark: Oh yeah. Absolutely! It was just a lot of fun.

Ms. Upadhyava: And develop a group of friends?

Ms. Clark: Yeah, most of my friends there were people that I knew there in the dormitory

and, I mean…yeah, it was all dormitory friends for the first year or two.

Ms. Upadhyava: What was the ratio of men to women and men to men at UT at that time?

Ms. Clark: Definitely a majority men. But not by a huge amount.

Ms. Upadhyava: Ok…

Ms. Clark: I can’t remember precisely but it might have been like one and a half to one or

something like that.

Ms. Upadhyava: Were you in a sorority?

Ms. Clark: No. No. That was not my thing. Not the social scene and besides you

needed to have money to be in the sorority.

Ms. Upadhyava: Ok. I have the same reaction by the way when someone asks me if I was in a

sorority in University of Missouri, I say oh not my thing.

Ms. Clark: No, that was a very different scene.

Ms. Upadhyava: Ok.

Ms. Clark: In fact, when I arrived at the dormitory, they assigned me a roommate who

was…in…totally involved in rush week. And she and a group of her friends

like 3 or 4 friends spent into the wee hours of the night, every night, in our

room, talking about these various sororities and things. And I wasn’t getting

any sleep, and I was not interested. (Lightly laughs) And fortunately, there was

another young woman in the dorm who had a similar situation, and we got

together and we arranged to swap.

Ms. Upadhyava: Laughs…

Ms. Clark: And my roommate then as a result of that was from Big Spring, which is also

out there in West Texas.

Ms. Upadhyava: Ok…

Ms. Clark: And she and I had a great deal in common. And that was the other group of my

friends in fact that reminds me, the Baptist Student Union, I hung out there a

lot. And so between the people I knew at the dormitory, and the people I knew

at the Baptist Student Union, that really made up my cohort of friends. The few

people that I knew, there were a few of my high school classmates who went to

UT, and I would see them occasionally or on campus. But I wasn’t big on the

social life, and if I was in the dormitory on… all weekend it was a really wasn’t

a big deal for me.

Ms. Upadhyava: So did you go to church regularly in college?

Ms. Clark: I certainly did for the first year or two, and then I think it kind of tapered

off.

Ms. Upadhyava: Ok…Well, let me…let us…I guess wind down although I feel like we’ve

barely scratched the surface today. Um, ok…it’s about 6:44 or so…

Ms. Clark: Ok.

ORAL HISTORY OF JULIA PENNY CLARK

Third Session

October 23, 2018

Ms. Upadhyava: Okay it’s October 23rd, 2018, and this is the next session of the oral history of

Julia Penny Clark held at the offices of Bredhoff & Kaiser. I am the

interviewer, Moxi Upadhyaya, and Miss Clark is here. So we’re going to pick

up right where we left off, which is that you had made the decision instead of

going to Baylor to, which your mom made you tour, to go to UT Austin, and I

think that at the beginning of your college career you had considered studying

journalism but quickly pivoted away from that. Could you speak to a little bit

what it was like kind of this first, you know, first year or two at UT Austin

and how you ultimately landed on what you wanted to major in and focus

your studies on?

Ms. Clark: I don’t have a very clear memory of making the decision on the major. I took

some courses in the journalism school, certainly my first semester, maybe the

first two semesters and they just felt rather not academic, they felt more tradecraft.

And I was more interested in the academic side so I, what I don’t

remember at all was making the decision that it would be English instead, but

that’s where I moved my focus. I started taking more courses in the English

department. I also ended up with a double major in Spanish. I liked the

language and they gave me an opportunity to study Spanish literature as well as

just the mechanics of the language, and that was something I really enjoyed.

So I did the double major, English-Spanish, I worked through my second, third,

and…so I finished mid-year of my fourth year. So I was on a, I guess a

somewhat accelerated schedule. I stayed and took courses every summer. And

that made the difference in my being able to graduate a little bit early.

Ms. Upadhyava: And so this would have been December of ’68?

Ms. Clark: It was January of ’69. In those days, the exams weren’t until after Christmas.

They made that…

Ms. Upadhyava: For better or for worse.

Ms. Clark: …reform much later, yes. So, I, it was January ’69 when I graduated, and just

purely by happenstance, I ran across an advertisement, about that time, for a

bilingual secretary at the local Legal Aid office. So it was Travis County, the

county where Austin is located. And the advertisement said we need a secretary

who speaks Spanish to be both a translator and a secretary. And I had been

thinking I would go onto graduate school in English, after I finished my

undergraduate, but I was sort of tired of always having something to study

when I wasn’t working or in class. And I thought it would be nice to just take a

little time off and do a job that paid me a little more than I was making as a

typist for the doctors. So I went and applied and interviewed for that job. The

Director of the Legal Aid office who, I have a fairly clear recollection of his

face, interviewed me personally and said “You know, you’re terribly overqualified

for this job, and I know you won’t stay very long, but I really think

you’ll be good for us while you’re here so I’m willing to take a chance on you.”

And so he hired me and I was the secretary for three lawyers in their downtown

office, which was right in the county courthouse. And I stayed there for long

enough to decide I wanted to go to law school.

Ms. Upadhyava: Was this the first real interaction you’d had with the law, or total practice of

law?

Ms. Clark: Yes. I had never, no one in my family had any background in the law, I had

never encountered anyone else except, you know maybe now and then I would

meet somebody who was a law student, but that was really my total exposure to

the law. So I started, you know, day one I’m typing away and they had a huge

docket of divorce cases and child custody cases and other domestic matters.

They had forms, pleadings forms that they would use like a form complaint and

a form judgement and the like. And I re-wrote them all because they just didn’t

seem like English and everybody was fine with that. So they started using my

forms, you know it had the substance in it, it was just re-worded so that it read

like English instead of legalese. And I did translations in the office, I had one

occasion when I was able to translate in the courtroom for a client who spoke

only Spanish. Typically, the courtroom translation was done by a full-time

investigator they had in the office who was a native Spanish speaker, and also

he spoke extremely good English, so he was the go-to person, but for some

reason or other he was unavailable that one day. So I got to be the courtroom

translator. Which went very smoothly until the lawyer for the husband who

was resisting divorce asked the client, our client, “And isn’t it true that you

were extremely nervous after the hysterectomy you had following the birth of

the twins?” And I go, oops, what’s the…

Ms. Upadhyava: What’s the word?

Ms. Clark: And I did the best I could and she understood me and she responded and

everything was fine. But that was a memorable moment.

Ms. Upadhyava: Medical terms weren’t covered in your Spanish major

Ms. Clark: No.

Ms. Upadhyava: So you worked for three lawyers and you said was it mostly civil cases, all

civil cases?

Ms. Clark: All civil. They did no criminal work. They had a few non-domestic relations

cases but not very many, it was just mostly divorces and child custody

matters and child support.

Ms. Upadhyava: How long were you at the Legal Aid office?

Ms. Clark: I started law school in September of 1970, so I was there about a year and a

half.

Ms. Upadhyava: Okay. And one question I had about your studies at UT, why did you decide,

was there a particular reason that you were accelerating your studies such that

you finished about five months, six months, well I guess about five months

early? Or did you just want to be done with school and start working?

Ms. Clark: No, I think it was just that I was there during the summers. I had the job and

I didn’t want to give it up, the job typing for the doctors. So I was going to

be in Austin for the summers anyway and they had some good courses that

they offered in the summer. Some of the good professors would be there and

the classes tended to be a little bit smaller, and so I just enrolled in those

classes and got some more credits. It never sort of occurred to me, this will

necessarily mean you’ll graduate early or whether that was a good thing or a

bad thing, it was just natural to work through the summers and take classes as

well.

Ms. Upadhyava: When you, is it safe to say that during your time at Legal Aid that’s when

you decided that you wanted to go to law school?

Ms. Clark: Oh, absolutely. Yeah.

Ms. Upadhyava: So what was it about the experience, if the two are correlated, what was it

about the experience that made you head in that direction instead of go to

graduate school?

Ms. Clark: I think it was that what the lawyers were doing seemed much more practically

useful than what I imagined I would be doing as an English graduate student

and ultimately an English professor, supposedly that would be the career path

that I would suppose I would have been following. And I’ve always had a bent

toward the practical. I like things that are useful. My major hesitation once I

started thinking about “I could do this and it’s more fun that what I’m doing

now” was that the women lawyers in Travis County at that time, there weren’t

many, there might have been three, were all doing divorce work. And while I

thought the law looked interesting, I could see enough of the divorce practice

that I knew I didn’t want to do that. It was highly repetitive. The whole idea of

form pleadings, for example. And so I gave a lot of thought to that, you know I

could go to law school, three years, I come out at the end and there’s nothing

there for me except being a divorce lawyer. And I ultimately decided I was

willing to take that chance and figure that maybe when I came out at the other

end I could forge my own path and do what interested me rather than just

divorce law.

Ms. Upadhyava: Did you speak to anyone at Legal Aid or elsewhere about the decision or was

there any particular person who was particularly influential on you at that time

to, when you made the decision?

Ms. Clark: I might have talked to one or two of the lawyers. They were young men,

they were a year, two years, out of law school. And it’s possible that I talked

to them about it, but I don’t specifically remember.

Ms. Upadhyava: So when did you start to take your, did you take the LSATs and start preparing

for that at some point?

Ms. Clark: I don’t remember when I took them, it was probably the summer before I

started law school, maybe the spring.

Ms. Upadhyava: And so how did you decide where to go to law school?

Ms. Clark: It was just kind of natural. I was living in Austin and I was there, it was in-state

tuition, it was a good law school. I knew it had a good reputation. And I was

fairly confident that I’d be accepted so I didn’t apply anywhere else, I just

applied to the UT law school. And the, it’s kind of interesting, my assumption

was I’ll do what I did in undergraduate school and I’ll work part-time while I’m

in school. And I went into the financial aid office after I got my letter of

acceptance saying it, and applied, saying you know, “I’d like to apply for any

financial aid that’s available to me” and they gave me the surprising news that

they really don’t like their students, their law students, to work especially not in

the first year. And I’m thinking, “You know, I don’t have a lot of savings,” I

had some, but secretary for the Legal Aid Society wasn’t being paid a whole lot

of money in those days.

Ms. Upadhyava: Or these days I guess.

Ms. Clark: And not, probably not even these days. And so I said, “well, I’ll apply for any

legal aid, I mean any financial aid you can give me” and they said “well we

have some one-year aid, we don’t have any, some one-year scholarships, we

don’t have any full three-year scholarships but we’ll consider you for whatever

you’re eligible for.” And then a few weeks later I got a letter saying I’d been

awarded a three-year scholarship.

Ms. Upadhyava: What? Amazing!

Ms. Clark: So I went back to the legal aid office on the day I was starting school to sign

up for this scholarship and get the first year’s check, and I met the woman who

was in charge of the financial aid office and she said “We had a donor, a

widow of a lawyer who lived in Beeville Texas” B-E-E-V-I-L-L-E just like it

sounds, “and she came to us and said she wanted to provide a three-year

scholarship for a student, and for a deserving student who was very good and

would need it”, and so we chose you. But when we told her, she said “Oh no

you can’t give it to a woman because she’ll never practice law! My money

would be wasted. She’s just coming to law school to meet a husband!” And

the scholarship office, to their credit, stood their ground and said, “This is the

student we’ve chosen, and we’re going to give her the scholarship.”

Whereupon the widow said, “Okay, then I’m gonna give you another identical

scholarship, but you have to promise me it’s gonna go to a man.” So they did,

they agreed, they awarded it to a man. And I’ve been married to him almost

38 years, yeah.

Ms. Upadhyava: Oh my gosh!

Ms. Clark: Yes!

Ms. Upadhyava: Okay, well that opens, okay that opens a huge line of questioning.

Ms. Clark: No it was, it was, I mean it was…

Ms. Upadhyava: Oh my gosh!

Ms. Clark: …such a coincidence, we met in law school of course, and so that was sort of

the initial link that brought us together, and…

Ms. Upadhyava: So did you, what was the name of the scholarship?

Ms. Clark: It didn’t have a name.

Ms. Upadhyava: Okay. What was the name of the lawyer and the widow?

Ms. Clark: I can’t remember, I wish I could. And I can’t even remember the name of the

wonderful woman in the scholarship office. She died that year, mid-year,

suddenly. She had wanted to take us down to Beeville to meet the donor in

person, and it never happened.

Ms. Upadhyava: So did you meet your husband as the, you know you were introduced

as the two recipients of this scholarship, or was it more of a, you met

in class, or?

Ms. Clark: Well, we each knew that the other existed. She told me his name, and I

promptly forgot it. So I went around just sort of wondering “Who is this man

who has this other scholarship?” He has a better memory for names than I do,

and he said, in modern terms you would say he stalked me for most of the first

semester. He was just sort of trying to figure out, which classes was I in and

what was I doing and so forth. And at some point in the spring semester, I was

in the law school canteen, I forget what they called it, but it was just a little

lunch spot. And I was sitting there between classes, maybe having a cup of

coffee, and this man sat down next to me and said, “I have to, I have you to

thank for the fact that I have a scholarship. I think I owe you a dinner at least.”

And we started talking and got to know each other, and before long we were

dating, and…

Ms. Upadhyava: That’s wonderful. And his name is?

Ms. Clark: William Bryson. Bill, for short.

Ms. Upadhyava: That’s, what a great story.

Ms. Clark: But, you know, we would have met even apart from the scholarship. Even

though it’s a big law school with fifteen hundred students, we were both on law

review and so that’s a much smaller group of people. We would certainly have

met in law review if nowhere else, but it’s still, it’s that she was so worried that

I was going to law school just to meet a husband and, which wasn’t the case,

but in fact it was her scholarship that brought us together!

Ms. Upadhyava: I wonder did she ever know that story?

Ms. Clark: No.

Ms. Upadhyava: What a great…

Ms. Clark: No.

Ms. Upadhyava: What a great outcome.

Ms. Clark: Because we never had a chance to go down and visit her and tell her.

Ms. Upadhyava: Well, you know in a way your, in a way the circumstances did, you know,

pave, allow someone else to go to school. So, that’s wonderful.

Ms. Clark: It was good. It was, but that was, that year was really kind of the, excuse me I

swallowed badly, the beginning of the women just kind of rushing, flooding

into law school. When I started in the fall of 1970, the class that had just

graduated, so May 1970 graduates, several hundred strong, because each

entering class had five hundred students in it, had one woman graduate. She

became a good friend of mine. My class was about 10 percent women.

Ms. Upadhyava: Oh wow.

Ms. Clark: And the following year there were so many women in the law school they had

to convert one of the men’s bathrooms into a women’s bathroom. So it really

just began at that point and was moving at a very rapid pace, expanding in

number.

Ms. Upadhyava: I had no idea that the growth was that intense and that quick. Do you know

what it could be attributable to? At that time?

Ms. Clark: Well, the Vietnam War was underway, a lot of young men were overseas.

Although not so many when you think about it as a percentage of the total

population, it was not at all like World War II, where all the men were away,

and the women had to work in the factories. But, I think it was the

combination of just the, we’d gotten through the ‘60s, there was all of the talk

about women’s liberation and women being able to control their own destinies

and have careers, and I think it just began to settle in at that point. It seemed

like it was possible for us to do something other than be a teacher or a nurse or

a homemaker, or a secretary, and those jobs seemed very interesting.

Ms. Upadhyava: Your class must have been about 150 women then? If I’m doing the math

correct?

Ms. Clark: Well, 10 percent, probably about 50.

Ms. Upadhyava: Oh 50. Okay.

Ms. Clark: Somewhere in that range. I mean I definitely knew all the women in the

class. There were not so many that I wouldn’t recognize them all and have

a name to put to their faces.

Ms. Upadhyava: And did you ever rub it in Bill’s face that you got the scholarship

before he did?

Ms. Clark: No, no, no, I was just…everything I was grateful for it all the way it

worked out.

Ms. Upadhyava: You started dating you said around spring semester of your first year?

Ms. Clark: Summer.

Ms. Upadhyava: Summertime, okay. And what were the, what was the first year or two like,

anything that you recall being notable?

Ms. Clark: Well, here’s the funny thing I guess. I did, I loved law school from the very

first day. I liked the subject matter, I liked the way we were learning. I just

really got into it, and, but my first semester grades were the worst grades I’d

ever gotten anywhere. I’ve never gotten more than one B in a semester in my

life and that was on some really, really challenging class. I couldn’t

understand why I’d done poorly. So I went to visit one, maybe two,

professors to say I really want to really understand why my exams weren’t

better. And what I learned, which nobody had clued me into, was that the

exam writing process was totally different. So in English literature, if

somebody put a question to you, you choose what you think is the very best

answer and write a high-quality essay around it. So that’s what I did in law

school. Here’s a hypothetical question. I would choose what I thought was

the very best answer and write an essay around it. Instead of issue- spotting,

where you’re rewarded for saying, “Oh well there’s six or seven different

ways that you could look at this and explain each of them.” So whoever it

was that I talked to and I don’t have a very clear memory of the conversation

explained to me that this was the way law school exams were graded and I,

okay I can do that, so I proceeded from then on. I was at the top of my class,

and it was a very different way of going about writing, but I was successful at

it once I knew what to expect.

Ms. Upadhyava: When did you, what would you have done in the summers between your

first and second year and your second and third year in law school, if you

recall?

Ms. Clark: Let’s see. The first year, one of the lawyers I had known at Legal Aid had

gone into private practice and I worked for him and his partner as a

combination law clerk/secretary. So I did legal research for them, and I

typed for them, and that was a full-time job that summer, right there in

Austin. The second year I did what almost everybody on law review did,

which was to go to work for a big Houston law firm. And that was, the one I

worked for was Vinson & Elkins. It had more names in it at the time but it’s

the same firm. And I worked there for probably half the summer maybe a

little longer and did Law Review the rest of the summer.

Ms. Upadhyava: When did you, what was the Law Review process for how are people chosen for

Law Review? Based solely on grades?

Ms. Clark: That year I think it might have been solely on grades. The following year

and maybe both of the next two years, there was also a writing competition

that allowed people to compete for slots by doing research and writing.

Ms. Upadhyava: And you mentioned that Bill was on Law Review as well?

Ms. Clark: Yes. Yeah he was editor-in-chief and I was an editor of the student-submitted

pieces our senior year.

Ms. Upadhyava: How many people were in Law Review relative to the class itself, do you recall?

Ms. Clark: Probably a little under 10 percent. So probably, I’m thinking there might have

been 25 or 30 people who were actively working on the, maybe that’s, yeah, I

don’t think it was, it might have been. So maybe the editorial board had about

10 and then there had to be another 20 or 25 people who were on law review but

weren’t on the editorial board.

Ms. Upadhyava: I see. So…

Ms. Clark: But that would then represent two classes that would be both the second and the

third year of classes.

Ms. Upadhyava: Did you enjoy Law Review?

Ms. Clark: I did. Yeah, I always liked writing. And so you know, the first year on law

review, so my second year in law school, I wrote and blue-booked things,

like all first year Law Review people do. And in my, and then the third year

of law school I was on the editorial board and also wrote a longer piece

which was on a labor law subject, which grew out of a seminar that several of

us took on labor topics. And we ended up publishing three student-written

long pieces in one issue of the Law Review out of that seminar.

Ms. Upadhyava: And was your piece one of them?

Ms. Clark: Mine was one of the three, yeah. Bill’s was another one and then there was

another one, by two friends of ours who collaborated on a piece.

Ms. Upadhyava: What was Vinson & Elkins like?

Ms. Clark: I enjoyed it. They made a big point of introducing me to their woman

lawyers, but they didn’t have many.

Ms. Upadhyava: Yeah I was going to ask how many were there.

Ms. Clark: I think there were two at the time and the firm may have had about 150

lawyers.

Ms. Upadhyava: Okay.

Ms. Clark: And that’s how I met the woman who had graduated just before me. She was at

Vinson & Elkins at the time. But I had a really, I guess for most of the time I

was there, I was working on research for a particular piece of litigation and so I

was working with the same small team of lawyers and doing research on

connected topics for practically, if not entirely the whole time I was there, it

may have been the whole time. But I was working with a very talented lawyer

named Harry Reasoner who was a middle-range partner in those days, but was

one of their superstars and it was fun to work with him.

Ms. Upadhyava: Did you get a chance to sit in on any depositions or hearings?

Ms. Clark: I don’t believe so. I think I was just entirely in the office.

Ms. Upadhyava: And you liked the process of researching and being in that environment?

Ms. Clark: It was, yes. It was challenging and fun and interesting to do it on somebody’s

real case instead of more hypothetical, theoretical things.

Ms. Upadhyava: What did Bill do for that summer?

Ms. Clark: He worked in O’Melveny’s office in Los Angeles.

Ms. Upadhyava: So you were apart for part of the summer?

Ms. Clark: Yes.

Ms. Upadhyava: Okay. And at this point in your law school career, did you have a sense of

what you wanted to do after you graduated?

Ms. Clark: We were both focused on clerkships as most Law Review students were in those

days. So we were thinking about going for a federal appellate clerkship the

following year. Not thinking much about what would follow that, it’s just,

that’s the next step.

Ms. Upadhyava: Was that considered to be the step that one would take if they were at the

top of their class on Law Review, clerkships…

Ms. Clark: Sure.

Ms. Upadhyava: …even if they weren’t necessarily interested in litigation?

Ms. Clark: Yes. There were relatively few people who were at the top of the class who

didn’t apply for federal clerkships. I think of one woman, but she already had

small children, so it may be that it was her choice to go directly into practice at

that point.

Ms. Upadhyava: So was the process of, what was the process of applying for clerkships like

when did you do it and how?

Ms. Clark: It was in the summer. I came back from Houston and had a resume printed and

I was getting ready to put them into envelopes and send them out when I got a

call that came down to the Law Review office from Professor Bernie Ward

who was one of the two federal civil procedure gurus at our school. We had

Charlie, Charles Alan Wright and Bernard Ward. And I had taken my federal

courts class from Professor Ward. So I’m thinking, well that’s okay I’ll go up

and talk to him. Maybe he wants to have something published in the Law

Review. So I walked into his office and he said, “I have a clerkship for you if

you want it.” And he said, “I have a very good friend who’s a judge on the

Fourth Circuit, Braxton Craven, and I talked to him about you while I was at

the Fourth Circuit legal judicial conference last week and your clerkship is his

if you want it.” Mainly I had the same reaction you had, mind you, my jaw had

dropped. And I said, “Well let me give this some thought.” So I, at that

moment, a woman who had graduated the year before was clerking for him.

And so somehow or other I got her phone number and I talked to her and I said,

“Is this the clerkship I should want?” And she said, “Oh yes, of course.”

Which she probably would have said no matter what but that’s fine. And so

without ever sending out a single application, I got this clerkship and after I got

to North Carolina, where Judge Craven had his chambers in Asheville, which is

a beautiful place to spend a year. He said Bernie, as he called him, he was very

close friends with both Professor Ward and Professor Wright, and he said,

“Bernie has highly recommended you, he said you write like an angel.” And

somehow or other I had occasion to repeat that to Professor Ward who said, “I

never said that. I said you write as does an angel.” Now I don’t know how he

thought an angel would write, but that’s fine. Apparently I had written an

exam in his federal courts class that he was quite impressed with and so that’s

how I got the clerkship. So it wasn’t much of a process for me as it turned out.

Ms. Upadhyava: That’s really remarkable. You must have left an impression on Professor

Ward. Did you know that he was, did he know that you were interested in

clerking?

Ms. Clark: He probably assumed it because that or perhaps I had gone up to him and

asked him if he would be willing to be a reference for me, I can’t remember

now for sure.

Ms. Upadhyava: At what point did you meet Judge Craxton?

Ms. Clark: Craven.

Ms. Upadhyava: Craven, sorry.

Ms. Clark: Braxton Craven.

Ms. Upadhyava: Craven.

Ms. Clark: I met him when I showed up for my first day on the job. Actually he wasn’t

even in the office on the first day. It was about a week because he was, he

always spent about a week at Wrightsville Beach in Wilmington, North

Carolina in the summertime and he was at the beach when I showed up, so it

was about a week before I ever met him.

Ms. Upadhyava: And did he have, so he’s on the Fourth Circuit, would he have had four clerks

at that time or two?

Ms. Clark: Only two.

Ms. Upadhyava: Okay. And did you and your co-clerk begin on the same day or did he

stagger his clerkships?

Ms. Clark: You know I think we started on the same day. It’s possible. The other clerk

was named Jim Dean Cooley. He might have started before I did, but he was

there when I started.

Ms. Upadhyava: Well, I definitely don’t want to skip over years three and your graduation, but

I guess kind of going back to wrapping up law school, what was Bill doing at

the time and were you sufficiently serious that you both were considering

what the future would look like for you?

Ms. Clark: Well we had had some just sort of idle conversation about wouldn’t it be nice if

we could find clerkships in the same city. But once I got this offer in North

Carolina, that just wasn’t going to be possible. Although I think Professor

Ward said, “I also know Clement Haynsworth and if Bill would be interested in

his clerkship, then I’d be happy to recommend him to Judge Haynsworth.” But

Bill had his application in at the time for Judge Friendly and had gotten an

interview and he was ultimately hired by Judge Friendly. So that was clearly

the right place for him to go, was to spend the year with Judge Friendly. So and

we wouldn’t have been in the same city anyway. Judge Haynsworth was over

the mountains in Greenville, South Carolina. But we would have been closer,

two hour drive instead of a flight.

Ms. Upadhyava: Yeah, right.

Ms. Clark: But definitely he made the right choice. Judge Haynsworth was a lovely

man but the experience clerking for Judge Friendly was, I think, a much

higher level of both challenge and a learning experience.

Ms. Upadhyava: So you’re, so when, if there’s anything you want, particularly remember about

your third year, but because I’m curious to know at that time was anything

taking shape as to what you wanted to do after your clerkship or still just kind

of gearing ahead towards the clerkship?

Ms. Clark: I was focused toward the clerkship and somehow had gotten into my head that

I should apply for a Supreme Court clerkship but I didn’t really, I don’t think I

had any real sense of what that process was like or how many law students all

around the country were applying. But I had, that seminar on labor law had

certainly made me more interested in labor law than many of the other things.

I was definitely focused on federal subjects. The UT law school offers a widerange

of classes in Texas-based subjects, oil and gas law for example, and

Texas civil procedure and I took none of those. I really focused on the federal

subject matter. And so it was just, it was a good year. It was very intense,

both being on the Law Review and keeping up my studies for my classes and

writing the major paper that ended up being published. But I will tell you one

other incident which has to do with the attitude toward women at the time.

The three big Houston firms did heavy recruiting of the Law Review people.

It was hardly a weekend that would go by that you couldn’t get at least one

free dinner off them. Anytime any of their people were in town they’d invite

the law review, particularly the editorial board out. Sometimes small dinners,

sometimes huge dinners. There was one really big dinner which I remember

in a hotel ballroom. And they had us sitting at tables with maybe eight people

per table with one of the partners at each table and this partner was presiding

over his recruiting dinner and he started going around the table and asking

each of the men what kind of law they thought they would practice. And you

know, each of them was answering and he got to me and he said, “So, do you

intend to practice law or are you just…” and he caught himself before he

finished the sentence and one of my classmates came to the rescue and said,

“Oh she’s putting all of us to shame. She’s at the top of the class.” And he

kind of corrected himself and proceeded to “so what kind of law do you think

you’re going to practice?” It was a very telling moment and one other thing

from one of those dinners, which was another mass dinner, maybe it was the

same one, in the ladies room, there was a young woman who was at that firm.

And she was just gushing about what a great place it was to work that she was

allowed to work on anything that the men worked on except she couldn’t work

late at night because the partners’ wives got jealous. And I thought you mean

to tell me if there’s a project that requires late-night work, you’re not allowed

to work on it? And you’re saying that you have all the same opportunities that

the men do? It was enough to persuade me that Houston wasn’t a place that I

wanted to practice law. It was just very definitely not along the lines that I

had envisioned for my career.

Ms. Upadhyava: And the fact that that didn’t occur to her…

Ms. Clark: …that it was maybe a negative.

Ms. Upadhyava: …that was something remarkable, right?

Ms. Clark: Yes.

Ms. Upadhyava: Right. Right. Ms. Clark: It was surprising.

Ms. Upadhyava: So do you, how was graduation? Did Bill meet your family?

Ms. Clark: We both skipped graduation.

Ms. Upadhyava: Are you kidding me? Okay.

Ms. Clark: It was sort of like, no, but we had met each other’s families before then so it

wasn’t like graduation was going to be the occasion for that. No, we skipped

graduation, and looking back on it, I should’ve done it for my parents. I wish I

had.

Ms. Upadhyava: Any particular reason you skipped?

Ms. Clark: I think we were both just in the mode of we’re done with this and ready to

move on and somehow the ceremony seemed gratuitous. It didn’t mean

much to us but I’m sure it would’ve meant a lot to my parents. I’m sorry I

didn’t.

Ms. Upadhyava: Yeah. What did you do the summer before you started your clerkship?

Ms. Clark: I worked with an organization called CLEO which provided a kind of head

start for minority and low-income entering law students. It was in Houston

and it was an intensive summer program that was designed to give them an

introduction to what they needed to know for law school.

Ms. Upadhyava: I think it actually still exists.

Ms. Clark: I hope so.

Ms. Upadhyava: It sounds very, very familiar. I think it does actually, or it did when I entered

law school because I recall, is it, was it something like a week-long or few

weeks long program?

Ms. Clark: It was longer than that. I think about a month. It could have been longer but

because I know I was in Houston for several weeks at least and it was housed

at the University of Houston Law School. And I and one other, yeah one other

law student, a woman who was in the class behind ours was also working there

that summer and we taught legal research, legal writing, that sort of thing, sort

of like there were actual faculty members who were involved but the really

young ones basically and they had at least the two of us students recent

graduates who were like teaching assistants, and so we worked with the group.

Ms. Upadhyava: Now when you got out of law school, did you see what, was there a big change

in terms of how many women were going to law school? Kind of, I guess what

were your observations about what female attorneys were doing at that time as

opposed to when you went in which was you said there was a really small

number of women who were practicing divorce law in Austin?

Ms. Clark: Well certainly, there were a lot. I mean my class, the bulge hadn’t yet gotten

through the snake. When I was in Houston, I did see there several women who

were practicing at a very high level and I guess I took some encouragement

from that thinking okay it is going to be possible. I’m not going to be

necessarily relegated to just divorce work. But I hadn’t yet encountered a lot

of other women lawyers. You did sort of in that contained environment of the

law school. I don’t, other than the classmate that was with me in Houston, I

don’t remember any other women in the CLEO program that summer.

Ms. Upadhyava: I see. So when you left for, or I guess when you started your clerkship in

Asheville, what was, that was really the first time in several years you’d lived

outside of Texas, right?

Ms. Clark: Yes.

Ms. Upadhyava: And was your family still in Waco at the time?

Ms. Clark: They were.

Ms. Upadhyava: Okay. And if you could describe for me what the clerkship process was like

for you, what the judge was like, and how, if at all, North Carolina was

different from Texas in a sense of how many women were practicing law?

Ms. Clark: I don’t think I was exposed to any other women practicing law other than

the judge’s wife. And she was working in, I think, the US Attorney’s

office there.

Ms. Upadhyava: No other law clerks that were?

Ms. Clark: No, we were the only appellate chambers in Asheville. There was a district

court judge but he didn’t have any women clerks. And I don’t remember any

other women clerks in the Fourth Circuit group. We all gathered in Richmond

for a week out of every month for arguments and socialized with the other

clerks there and I don’t believe there were any other women in the group. I

think I was the only one. But in North Carolina was, it’s a, I mean, Asheville

is a city that has a lot of retirees even at the time it had a lot of retirees. It was

not nearly the cultural oasis that it is now. It’s quite a fine city now.

Ms. Upadhyava: I’ve heard really nice things about it.

Ms. Clark: But at the time, the downtown area was really kind of empty, a lot of vacant

storefronts and the like, now full of craft shops and coffee shops and it’s

really quite a good place and the judge was wonderful to work for. He was a

man with a big heart, big personality, very smart, good lawyer. He wanted

his opinions to be researched and written well, and he had a, I mean if you

think of Senator Sam Ervin I don’t know if you had enough, I mean he came

across a lot like Senator Sam.

Ms. Upadhyava: From Texas, right?

Ms. Clark: No he was North Carolina, too.

Ms. Upadhyava: Okay.

Ms. Clark: He was also from the mountains and in fact was sort of a mentor for Judge

Craven. So he was I mean, and that was before North Carolina turned quite so

politically conservative. It was more, Judge Craven was a very politically

liberal judge as were most…certainly about half of the judges on the Fourth

Circuit were then. The Circuit veered very conservative for a while and then

back to more liberal and now I think it’s sort of middle. But Judge Craven was

one of the more liberal judges on the circuit.

Ms. Upadhyava: What had he done in his career as an attorney?

Ms. Clark: He was a prosecutor, he was a state court judge, and he was a federal district

court judge.

Ms. Upadhyava: So, could you tell how, if at all, his, I guess mindset, about women attorneys

had been shaped by the fact that his wife was a prosecutor I guess?

Ms. Clark: He was, I mean, I just, I never thought of him as treating me any differently

from the male law clerk. We were all kind of a happy family in chambers, we

worked together, apart, we socialized together occasionally, not all the time,

but yeah I didn’t feel like there was any, that he treated me any differently

from his male law clerk. He, I went, I came to Washington to interview for

Supreme Court clerks, clerkships, almost immediately after he’d met me. So

maybe a week he’d known me, and Justice Powell called him for a reference,

and I guess I got this story from Judge Craven, he said Justice Powell asked

him was I the kind of woman who would get along with the women secretaries

in the office, and Judge Craven said, “Oh absolutely, she’s already fast friends

with my secretary and my junior secretary.” He had a senior and a junior

secretary. And he said that Justice Powell asked him, “Is she the sort of

woman who’s going to break down and cry if things get tough?” And Judge

Craven said, with absolutely no factual basis for this, “No, she’s not afraid of

anything, she’s absolutely tough.” Bless his heart, because Justice Powell

hadn’t had any women law clerks before that.

Ms. Upadhyava: Really? Okay.

Ms. Clark: And I was his first, so, he had a daughter who was a lawyer. So he knew

that women could be lawyers and I won’t say whether he had practiced

with any at Hunton & Williams, he might have, but at least, and he was

definitely inclined toward hiring his first woman clerk. But obviously he

wanted to make sure that I wasn’t going to be, either the kind of person

who was going to treat his long-time secretary like trash or something like

that.

Ms. Upadhyava: That’s understandable.

Ms. Clark: Or that I wasn’t going to be somebody who would not bear up under the

necessary pressure of getting things done. So it was, I’d thought Judge

Craven deserved real blessings for having gone out on a limb for me

that way.

Ms. Upadhyava: How did your application get to Justice Powell? Were you generally applying to

all Supreme Court clerkships that were open at the time?

Ms. Clark: I think I applied…I did not apply to the Chief Justice, I did not apply to Justice

Rehnquist….and I may not have applied to Justice Douglas. But I think I

applied to everyone else. And the, I mean, Justice Rehnquist was sort of

regarded as the far-right on the Court. I knew enough about, I guess I’d heard

some rumors that the Chief Justice’s clerks didn’t get to mingle with other

clerks, which turned out to be true.

Ms. Upadhyava: Who was the Chief at the time?

Ms. Clark: Burger.

Ms. Upadhyava: Okay, right.

Ms. Clark: And there were always rumors about how badly Justice Douglas treated his

clerks so I think those were the ones I did not apply to. I interviewed with

Justice Powell and Justice White, but no one else. And Justice Powell offered

me a job almost immediately after the interview.

Ms. Upadhyava: What was the interview like?

Ms. Clark: He asked me what my SAT scores were. And fortunately I still remembered

them, I don’t now, and he asked me some questions about the kinds of things I

had done in law school and what my interests were, and I don’t think he, I

mean Justice White kind of quizzed me on subject matters, I remember that, I

don’t remember specifically what they were, but I do remember coming away

with the thought that I’d just had an oral exam. Not the case with Justice

Powell. But he definitely wanted to sort of get a sense of what kind of person

I was. He also had his clerks interview me, which he did with us as well the

following year, had us interview his candidates for the next year’s clerkship.

But he also knew Professors Ward and Wright. And toward the end of the

year, his secretary showed me the file that had the correspondence from when

I was hired. And in it he had written to Ward and Wright and said, “I’ve

interviewed Penny and I’ve interviewed Bill, and I’m trying to decide which

of them I should offer a job to.”

Ms. Upadhyava: Your Bill?

Ms. Clark: My Bill, yes.

Ms. Upadhyava: Oh, wow.

Ms. Clark: And Professor Wright wrote back, “Hire them both.” And Justice Powell

said, “No, I don’t really think I want to have two clerks from the same school.

But I think it’s time I had a woman law clerk.” And so he picked me. Bill

was hired by Justice Marshall. So he clerked for Justice Marshall the same

year, so we were in the building together there working.

Ms. Upadhyava: Wow. What a remarkable process.

Ms. Clark: Yes. It really was. And I mean Justice Powell certainly didn’t have a strong

dependence on any small group of professors to send him clerks, nor did he

have any kind of a pipeline from Court of Appeals judges at the time. He

might have developed one in later years, but I was just fortunate. I was in the

right place at the right time and had professors that both of these judges

respected, and had managed to make a good enough impression on both of the

professors that it served me well.

Ms. Upadhyava: I’d say. How was, when you were clerking on the Fourth Circuit was it, did

you ever see, and I guess you’re watching all the oral arguments for the cases to

which you were assigned. At this point, are you thinking that there’s a

particular avenue that you’d like to pursue?

Ms. Clark: I think all appellate clerks fall in love with appellate law and think how much

fun it would be to be the one arguing there. And of course it’s a skill that just

comes quite naturally, both writing briefs and arguing. You can easily imagine

yourself doing both of those things. There were not at the time any mock trial

programs that I know of. There were moot courts, of course, but I don’t think

very many law students came out of law school with trial skills unless they had

worked in a clinical program of some sort. And there wasn’t even a lot of that.

Most law schools were really just academic. And so making the transition

from law school and even clerkship to trial work would be a good deal more

challenging. District court clerkship, you would learn something about how

good lawyers try a case, you hope.

Ms. Upadhyava: I hope. Well having done one myself, I’d say I definitely learned about what

not to do. That list grew very long in the 18 months I was clerking on the

district court. Were there many women arguing in the Fourth Circuit at the

time?

Ms. Clark: I remember one in particular who was there several times for the Department

of Labor, Wage and Hour Division. And she was very good, she really knew

what she was doing. She knew both her subject matter and she knew how to

make a good oral argument. And every time she came back I was very

impressed with her performance. I don’t remember any others, she’s the only

one that stands out.

Ms. Upadhyava: How did you get along with your co-clerk?

Ms. Clark: We were good friends. We got along very well.

Ms. Upadhyava: Did you feel, given that you were the only female clerk, was there anything

really in that insular environment of the court system, and I guess I’m speaking

about the whole Fourth Circuit group of clerks, anything remarkable or

anything that you remember as being something of note, kind of being a female

clerk in that environment, or the only female clerk in that environment?

Ms. Clark: No, I don’t really. There’s nothing out of the ordinary that happened. I was

just doing my job like the others.

Ms. Upadhyava: When did you take the bar exam?

Ms. Clark: After my Supreme Court clerkship.

Ms. Upadhyava: Okay. I was wondering when you fit that in.

Ms. Clark: Yes, no, because, I worked the summer after I finished law school. And then I

didn’t take the bar exam then, and I worked on the Fourth Circuit right up until

I started here. So there was no time in between there and definitely not while I

was clerking.

Ms. Upadhyava: What was the Supreme Court clerkship like? Did you and Bill start at the same

time?

Ms. Clark: No, he had the good fortune of getting to the Court before the Nixon tapes case

was decided. Maybe even before it was argued, and I came in after it was over.

So, I missed out on the Nixon tapes case. But we had plenty of interesting law

that year. It was very intense. There were four law clerks, Justice Powell was

one of a few Justices who took the option to expand to four that year. So he

had originally hired three clerks, they got the budget for a fourth and he added

the fourth clerk after the other three of us had started. And so we were kind of

crammed into chambers, there wasn’t a lot of space, but it’s a beautiful

building, it’s a wonderful place to work. The library, not only is it just

physically a beautiful facility, you could go up there and there’s like a balcony,

that has all the state law, that’s a little bit above the main floor of the library.

And there was at least one occasion that year that I was, I found it necessary to

look at the state law on something in every state. And I just made the rounds

of the balcony. There was another time when I was doing research and

drafting an opinion on a Fourth Amendment issue that went back to the history

of search and seizure law in England. And I asked the librarian for a copy of

“Coke,” or Blackwell – one of those that gets cited in all the really old, old

cases. And within a couple of hours, the library attendant trundled up to my

office with this book cart with a leather-bound book that was about two and a

half feet long and about 18 inches wide that had, as I was using it, in between

the pages I found a piece of a Philadelphia newspaper from the early 1800’s

that somebody had used as a bookmark. It was like I was using, I was sitting

there doing my historical research in the real thing. They had borrowed this

book from the Library of Congress, which was just next door. They had an

arrangement that if there was something that wasn’t in the Supreme Court’s

library they would borrow it from the Library of Congress. I felt like I needed

white gloves to handle that book. It was just amazing. And Justice Blackmun

had breakfast with his clerks almost every morning in the court cafeteria and

other clerks were welcome to sit down and join them, and that’s where I had

my breakfast most mornings is with Justice Blackmun and his clerks. The

cafeteria was open for lunch as well, so I was getting two meals a day right

there in the Court cafeteria. I lived on First Street, just across the street from

the Court. I had just very fortunately gotten a basement apartment in a row

house. It was so close that the guards could watch me walk home at night.

And it was always at night. But that was an apartment that was sort of handed

down from one Supreme Court clerk to another as the new year turned over.

And so I didn’t have to waste any time commuting, it was a two minute walk.

Ms. Upadhyava: What were the hours like?

Ms. Clark: Oh, as long as you can stand. It really, there was a lot of work to do, and there

were deadlines coming in because they’ve got to have oral argument and the

Justice has to be ready for oral argument. He wants to know what’s in this

case. He read the briefs himself, of course, but in terms of, is the law that the

parties have presented a thorough and accurate description of the state of the

law? Do these arguments make sense in the context of the Supreme Court’s

other cases or, if it’s a matter that the Supreme Court has never considered,

what about the Court of Appeals cases, how do they break out on this? And a

lot of think pieces. So early on, there were I think four cases before the Court

that term that involved women’s rights, so it was discrimination against

women. Ruth Bader Ginsburg argued two of them.

Ms. Upadhyava: And Title 7 would have been five years old, six years old? No. I’m sorry.

Six years.

Ms. Clark: About. It took effect I think in ’76.

Ms. Upadhyava: Oh, okay.

Ms. Clark: So it was…

Ms. Upadhyava: Why do I have…

Ms. Clark: No! It was ’66.

Ms. Upadhyava: ’65.

Ms. Clark: ’65-’66, I got it. I’m a whole decade off. Right so it was about eight years

old at that time.

Ms. Upadhyava: Okay.

Ms. Clark: Because this was the ’74-’75 term of the Court, but these were constitutional

cases. So one of them was Weinberger v. Weisenfeld, which involved a

widower whose wife had died in childbirth, and he was raising his son and

was denied the Social Security benefit that a man would have gotten if his, no,

that a woman would have gotten if her husband had died. And so that was one

of the cases that was briefed and argued. There were…

Ms. Upadhyava: That was Justice Ginsburg’s argument right?

Ms. Clark: Yes. argument before the Court?

Ms. Clark: No, she had been there before.

Ms. Upadhyava: Okay.

Ms. Clark: There were a couple that involved jury service, excluding women from juries.

And the other one was Schlesinger v. Ballard, which was giving women in the

military more time to qualify for promotion. And so Justice Powell was, his

view of this was, yes women should have, they should be free from

discrimination solely because they’re women. He was inclined to think that

there were certain things that men had a natural advantage over women on, like

Major League Baseball, sensible things like that. But he was not at all willing

to give up on the idea that women could have greater protection than men, and

that was something that, the drive at that point was from, to some extent, men

trying to get the advantage of the kinds of protections that the law had provided

for women. So for instance in that, before Title 7 and probably even after, you

would often find state laws that would say “women employees have to have

extra rest periods.” So, you know they’re treating us like delicate flowers, and

so of course we have to be permitted to sit down and take a rest somewhere in

the middle of our shift of work and those were called protective laws. And

while Justice Powell wanted not to limit women’s opportunities, he also didn’t

think that they should necessarily lose these special protections. And so he

asked me, probably in the summer before any of the cases started to be argued,

to give him a memo that would help him think of a way to work through these

cases that were coming up in the term that he would be comfortable with, both

not limiting women’s opportunities, but also not taking away their protections.

And that ended up being something that was very important to him in the

Weinberger v. Weisenfeld case. His vote wasn’t decisive as it turned out, there

was a large majority in favor of this young widower who needed the money

from Social Security to raise his son, but Justice Powell, he went from initially

thinking, “well of course women should get support payments when their

husbands die, because women are going to have a hard time making a living

and men will of course always work,” to realizing that this scheme of Social

Security was actually denying the woman equal benefits based on the work and

the contributions she had made into the system. And to realize that as a

woman who was working would have to buy life insurance to make up the

difference, that a man would otherwise have for the very same Social Security

contributions. And that ended up being his rationale for concurring with the

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judgment of the Court. So, we were doing all of those things, we were reading

the hundreds of cert petitions that come through, and trying to advise on which

presents an issue that’s really worth the Court taking its time on, preparing for

oral arguments. And the Court’s caseload was much greater than it is now.

Ms. Upadhyava: Oh really?

Ms. Clark: The Court used to grant a lot more cases. So I think it was, they would hear

four arguments a day, three days in argument weeks. Now they hear two a day.

So the caseload has effectively been cut in half from what it was then. We were

working on helping him prepare for arguments, once the arguments started,

then we were helping him judge to vote with you on your opinion. And also

doing these kinds of long-term think pieces like, later in the term we’re going to

have a cluster of cases about this so help me think about those in advance and

the workload was very, very heavy and it was quite intense.

Ms. Upadhyava: So the think piece that you did on the women’s issues, did you approach that

like a legal analysis type of piece or more policy directed?

Ms. Clark: Well, both really. To say, here’s what this Court’s cases so far have done on

the subject, and I think there was one or maybe two prior cases that, now

Justice Ginsburg had done that had established sort of the beginnings of the

principles that the Court was applying in the field of women’s rights. And so it

was, you take these, and what is a sensible way to read those cases and apply it

to the variety of other issues that may be coming along? So it was partly

thinking in an imaginative way of what are the other issues that are out there,

besides these four case that the Court had for that term. And how can you

reach a result that you would be comfortable with based on this law, and all of

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these possible ways of applying that law.

Ms. Upadhyava: Who were your other co-clerks?

Ms. Clark: One of them is Joel Klein, who later became the Chancellor of the New York

City school system and worked in the Clinton White House screening judges

and probably doing a number of other things. I think he was in the White

House Counsel’s Office for a large part of Clinton’s presidency. David Boyd

who has practiced here in the district….I’m trying to think what the name, you

would recognize the name of the firm if I could remember the name of the

senior partner of the firm but it’ll come to me. [Boies, Schiller] And the other

one was Ron Carr who was an incredibly brilliant lawyer from the University

of Chicago law school who really, really had the mind for the law and

economics model, and went on to practice antitrust law. But he died young, so

there’s only three of us left. It was a good group, really smart, capable

lawyers.

Ms. Upadhyava: Were you all working 7 days a week?

Ms. Clark: Seven days a week, probably…the other three were all married, the men were

married. I had the advantage that my romantic interest was right there in the

building with me working the same hours I was, so there was not much of a,

other than now and then the two of us would just decide we really need to get

away from here for an afternoon or something, go for a drive. One of my

husband’s interests is astronomy and I remember once we wanted to go out

and look at the stars. I guess we had reason to think it was going to be a clear

sky, and Justice Powell lent us a pair of binoculars. He said, “Stop by my

apartment, I’ll lend you the binoculars.” And it was a leather binocular case

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that, these were his binoculars when he served in the Army in North Africa in

World War II, so it was “Lieutenant Colonel Lewis F. Powell” engraved on

this case.

Ms. Upadhyava: Being trusted with these!

Ms. Clark: Yes! Well, we did return them in good condition, we didn’t break them. So we

occasionally got away for an afternoon drive in the country or something like

that, so that we weren’t 24 hours a day. But it was very intense. I would go

over to the Court in the morning, most mornings 7:00 probably. And we would

leave the building briefly around 6:30-7:00 and get something for dinner.

Usually just right on Capitol Hill, there was a place called the Tune In

and…there was one other place that was open for dinner where you could just

get a hamburger or something. And then go back to the Court and work until

you just couldn’t stay awake any longer. So, and then I would just walk across

the street and fall into bed and just sleep as long as I could and wake up the next

morning and do it all over again.

Ms. Upadhyava: What was, for you, the most memorable case of that term, that you

worked on?

Ms. Clark: Probably the one that sticks in my mind most, it was a labor case. It

was Connell Construction Company. They’re from Texas so they

pronounced it Conn-ell, C-O-N-N- E-L-L Construction Company

against the NLRB and I think it was a pipe fitters union that had, they

refused to work on a job unless the general contractor made sure that

certain other jobs were being done by union labor, and the National

Labor Relations Board had said you can’t do that and the Supreme

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Court affirmed that ruling. There was also an antitrust issue in that

one, and the opinion that I ended up drafting, sort-of, I thought of it at

the time, now I go back and read it and I think there’s nothing

particularly remarkable about this, but it was, at the time I thought of it

as sort-of carving out a different way of dealing with what we call the

labor antitrust exemption, which is a doctrine that says that a labor

union is not the combination or conspiracy in restraint of trade and

there are certain things that labor unions can do without being in

violation of the antitrust laws. To some extent, that exemption is

squarely required by the Norris-La Guardia Act, but not completely,

and it is largely, in addition to that, a creature of court-made law, and

this was dealing with the scope of the court-made side of that

exemption. So, I remember it because it was a labor case, because I

struggled mightily with trying to find a rationale for the Court’s

decision that would be sustainable and defensible. And after I came to

work in this law firm on the union side of labor law, I, someone

pronounced to me, a very, very smart lawyer who was then General

Counsel of the AFL- CIO, that is the most vicious opinion I have ever

read.

Ms. Upadhyava: Did he know that you were, that you had worked on it?

Ms. Clark: Well, that was why he had made that remark. Yes.

Ms. Upadhyava: Oh, I see.

Ms. Clark: No, when he found out, he said that is the most vicious opinion I’ve ever read.

Ms. Upadhyava: At what point during your clerkship were you starting to give some thought

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to what the future was going to look like after that year was over?

Ms. Clark: Too late, according to Joel Klein. I was being remarkably uninterested in what

was going to happen the following year.

Ms. Upadhyava: I take it, I’m sorry to interrupt, I take it you were clerking from August to

August or August to September?

Ms. Clark: That’s pretty much it. Yeah, pretty much August to August. And I was the

one clerk in chambers who had some labor law interest and background and

this was true in the Fourth Circuit as well, both of my clerkships, I was the

clerk who got all the labor cases because I was the one who was interested

and had the knowledge. So I was doing a fair amount of labor and laborrelated

work, and Joel who just kept fretting because I wasn’t thinking about

what I was going to be doing after the clerkship was over. The law firms and

the law schools were recruiting. Anytime they had a chance they would show

up and they were allowed to meet with clerks, they would be there and they

were all very eager to hire women at that point and I figured there’ll be a job

for me, you know, I’ll find something interesting and I was so focused on

getting the work done because there was so much of it. But Joel one day said

I’m worried about you because you don’t have any plans for next year. He

said, I have a friend in a union-side labor firm that’s a really good firm and I

think you ought to meet him. And I said okay, that’s fine, why don’t you

arrange for that. So, Joel took me to lunch with a lawyer who was then in this

firm and I liked what I heard and I said well, that’s very interesting. When I

finish clerking I’m going to go back to Texas and take the bar exam in

October, they had an October bar exam, may still, but they did it three times a

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year…

Ms. Upadhyava: Oh, yeah. That’s kind of odd timing.

Ms. Clark: …very odd timing, but it was perfect for me because it meant I could take

some time off after the clerkship, recuperate…

Ms. Upadhyava: You mean like a week?

Ms. Clark: I actually took longer than that…

Ms. Upadhyava: Oh you did? Okay.

Ms. Clark: …and then take the bar exam, I mean the bar prep course, and take the bar

exam and I said, I’m going to go back to Texas and take the bar exam, I’ll be

back in D.C. somewhere, you know, early November and I’ll get in touch

with you then. Bill had already, I guess he took the D.C. bar that summer and

I’m pretty sure he had already decided to work for, my memory for names is

getting worse and worse, the firm, do you know Jamie Gorelick, the firm, she

was in Miller & Cassidy.

Ms. Upadhyava: Okay, I was going to say Hale & Dorr, but that’s where she is now right?

Ms. Clark: Yeah. That’s where she is now. Right, Miller & Cassidy, he and Jamie started

on the same day at Miller Cassidy and so I think he had already decided he was

going to be here for Miller Cassidy, so my first, you know, sort of okay, so I’m

going to come back to Washington and I’ll look for a job in Washington and I

just assumed I’d find something that I liked and so, that’s what I did when I got

back from taking the bar exam. I applied to this firm and to several others and

did some interviews and decided this is where I wanted to be.

Ms. Upadhyava: So that would’ve been the late fall of 1975?

Ms. Clark: That’s right.

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Ms. Upadhyava: Okay. And when did you start here?

Ms. Clark: December 15th, 1975.

Ms. Upadhyava: And you’ve continuously been an attorney at this firm ever since?

Ms. Clark: Yeah. It will be 43 years in December.

Ms. Upadhyava: I recall that we were, I was here for your, I was here the night of your 40th

celebration.

Ms. Clark: Yes. That’s right.

Ms. Upadhyava: We spoke, one of the previous times, yeah. So, what was it about this

particular firm that attracted you, over the others?

Ms. Clark: I really, really liked the people. There were, I was lawyer number eight, so

there weren’t a lot of them, but the people that I met seemed like really smart

talented lawyers and people that I could learn from how to be a lawyer. So, I

had a little bit of hesitation about whether the subject matter might end up being

too narrow, that I might get tired of it, but it never even came close to being too

narrow. There are parts of this firm’s practice that I’ve never touched. So for

now, almost, 43 years, it really, if I could have been smart enough at the time to

design the perfect career for myself it would’ve been this one.

Ms. Upadhyava: That’s really remarkable.

Ms. Clark: It really is remarkable. I just fell into it by chance, that Joel had a friend who

was here and who didn’t stay all that long, I guess he left in the mid-eighties

and went to an even smaller firm where he’s practiced, I think he’s still in

practice, but it was just happenstance and a lot of good luck.

Ms. Upadhyava: When was the firm founded?

Ms. Clark: In the fifties by Arthur Goldberg before he was Secretary of Labor. He was

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General Counsel to the CIO and also to the Steelworkers’ Union and he

created an office in D.C. to represent those two clients, essentially, and it grew

into this law firm and various changes in personnel over the years. He left,

President Kennedy appointed him to be Secretary of Labor and then put him

on the Supreme Court, so he left in the, obviously between ’61 and ’63.

Ms. Upadhyava: Right. Were there any women attorneys when you joined?

Ms. Clark: I was number one.

Ms. Upadhyava: Okay. Was the firm called Bredhoff & Kaiser at that point?

Ms. Clark: No, it had a long unwieldy name, Bredhoff, Cushman, Gottesman & Cohen,

but we had the good fortune in 1981 to merge with a firm that was headed by

Henry Kaiser who was a lion in the labor bar, and we became Bredhoff &

Kaiser and we’ve kept that name, so whatever changes there have been in the

partnership since then, it remains Bredhoff & Kaiser, hopefully will forever.

Ms. Upadhyava: Was it a foregone conclusion that you were going to come back to D.C., at

the end of your clerkship I mean?

Ms. Clark: This is where I wanted to be. I found the city much more congenial and I had

the impression that people here were practicing very interesting law. Justice

Powell’s advice to me was go back to some small city where you will be the

very best lawyer in town and make a name for yourself there, which is what he

had done in Richmond. I’m glad I disregarded his advice on that score. I think

it worked out perfectly for me. And if there had been any doubt in my mind, I

went back to Waco to visit my parents in the interim between finishing this

clerkship and when I took the bar review course and the bar in Austin. In

between there I stayed with them for probably a week and they said we really

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would love to have an up-to-date photograph of you, could you go have a

picture taken and I said oh sure, I’ll do that. So I went to a picture studio that I

had used when I was in high school and then took the yearbook photos. I was

there posing for a photograph and the photographer says so what have you been

doing since you were here last, and I said, well I went to college, I went to law

school and I’ve been, you know, off as a law clerk at the Court of Appeals and

the United States Supreme Court. He said something like, you got to be really

careful not to be too smart because you’re going to want to find a husband, and

I thought that’s just the attitude I want to get away from. I didn’t respond in

any way at all other than just thinking to myself, Texas is not for me. Some of

our good friends stayed in Austin and had wonderful careers there, one working

for the Texas Attorney General’s Office for 25 years or longer. Some practiced

in Dallas. Some in Houston, but I think Washington was the right place for me.

Ms. Upadhyava: And when had Bill started with Miller & Cassidy and what practice was he

pursuing at that time?

Ms. Clark: He was doing general civil litigation and working with Nat Lewin, primarily,

and Jack Miller. He did some work for NASCAR, which was of course kind

of fun, and then he was in trial in Chicago for several weeks. They were

defending, there were some brothers who had been accused and convicted of

bribing Chicago officials. Oh the horror, right? And I think this was, Jack

Miller was defending one brother and the other one was being defended by a

really, really top-flight trial lawyer out of Nashville. And here my name

aphasia is going to hit me again, but it will come to me. So, Bill had some

really fine experience there. But his aim at all times was to go to the Solicitor

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General’s Office and as soon as his two-year waiting period was up he started

at the S.G.’s office.

Ms. Upadhyava: Oh in the, with respect to…

Ms. Clark: Former Supreme Court…

Ms. Upadhyava: Supreme Court clerks. Okay. So at this point…

Ms. Clark: Jim Neal, that was the lawyer from Nashville. Jim Neal.

Ms. Upadhyava: …so, at this point in 1975, as you’ve done all this, you said you went back

home to visit your family, what did your family make of all that you had

achieved in this period of time?

Ms. Clark: They understood it enough to know that they were very proud.

Ms. Upadhyava: And were they supportive of you staying?

Ms. Clark: My dad always wanted me to come back to Waco and practice law. That was

what he always wanted, but I just, this is one of those charming things that

comes around. He had never had anything to do with labor unions in his entire

life. Being in the military, there aren’t any labor unions in the military,

certainly not representing enlisted personnel. But he, as a second career after

he retired from the military, he became a meat cutter and he was working in a

meat-cutting plant in Waco. And there were various things about the way they

were treated that would’ve made anybody think this isn’t really right. And one

time when I was home visiting, he says, “I think maybe we need a union.” And

I thought, wow. He really, they never formed a union, at least not while he was

there, but the mere fact that he was open to it was quite touching, I’d say.

Ms. Upadhyava: Wow. And when you started, and now as you’re practicing, what was going

on in your relationship with Bill? Were you both…

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Ms. Clark: We were off and on for a while, we finally got married in 1981, in January.

And it was the right thing for both of us to do.

Ms. Upadhyava: That’s great. Did he stay in the Solicitor General’s Office?

Ms. Clark: He stayed there for quite some time. He was for a period the Chief of the

Appellate Section of the Criminal Division. Then he persuaded his good

buddy who was running the Organized Crime Section, that the Organized

Crime Section needed its own appellate lawyer. Because he’d gotten tired of

the administrative work of being a Section Chief. And so he was the Organized

Crime Section’s appellate lawyer during a period of time when they were

putting a lot of big organized crime figures into prison. And he argued a lot of

very, very high-profile cases in the Courts of Appeals all over the country.

And then the Deputy Solicitor General slot for Criminal opened up and he

became the Deputy Solicitor General on Criminal Matters. And stayed in that

position with a couple of brief stints as Acting Solicitor General when new

administrations would come in, until 1994…’93 maybe, late ’93 possibly.

Clinton’s Deputy Attorney General got into trouble. The name will come to

me, it’s not there on the tip of my tongue right now, but his Deputy Attorney

General got sent back to Arkansas in disgrace, [Web Hubbell]. Bill became

the Acting Deputy Attorney General for a brief period, working with Janet

Reno, who was the Attorney General. And our good friend Joel Klein found a

slot on the Court of Appeals for Bill because he was screening judges, and so

Bill was named to the Court of Appeals for the Federal Circuit, and he took

that position in ’94. And he’s still there.

Ms. Upadhyava: Does he like being a judge over being the one to argue cases?

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Ms. Clark: Yes, he never liked arguing cases. He argued lots of cases in the Supreme

Court and he said he was always terrified. He would never let me come to his

arguments, because he said it would make him more nervous if I…

Ms. Upadhyava: So you’ve never seen him argue?

Ms. Clark: I’ve never seen him argue an appellate case, that’s true. There were two

occasions when he was doing Court of Appeals cases, that he and I had Court

of Appeals arguments, in the same Court of Appeals, on the same day. In both

of those occasions, I couldn’t see his argument because it was in a different

courtroom and it was before mine. So I missed the chance to see him argue,

ever.

Ms. Upadhyava: So, two questions I definitely want to fit in our session tonight is, at the time

now, in 1975 and your first several years practicing, can you describe what it

was like to be a female lawyer, woman lawyer in this town? Was it anything of

note? Was it still a pretty male-dominated profession? Or did you find D.C. to

be quite different from Austin in that regard, or Houston, in that regard?

Ms. Clark: Most, a very large majority of the lawyers were still men. There were

essentially no women judges, that came later. The women who were practicing

in D.C. were primarily in government jobs. There was a time sort of soon after

1975 when I got a letter. There was no email of course, so you couldn’t

communicate by email, that said, we think that it would be nice if we got the

women who are practicing labor law together, occasionally, just to share our

experiences and we’ll schedule a brunch and make it potluck, and everybody

bring something. And I thought “terrific, I’ll get to meet the older women and

find out what it’s been like practicing labor law in this city” and there were

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three who were older than me. One of them I had…

Ms. Upadhyava: And you were what, 24, 25?

Ms. Clark: Yeah I was in my 20’s. Most of them were younger than me. There was one

that I had had some dealings with. She did work for the AFL-CIO, and I

knew her already, and there were two women who were working at the

Department of Labor at the time. And so no, there weren’t a lot of role

models for me, I had to kind of make my own way. I was fortunate that the

people I was working with here as far as I could tell never treated me any

different because I was a woman.

Ms. Upadhyava: That was my next question.

Ms. Clark: Yeah, no, they were very, very good. They lived their beliefs. This is as a

firm representing working people and representing a lot of Title 7 plaintiffs

over the years. They really, they acted the same way they argued, so it was a

very, very congenial relationship here. I never felt that I was treated in any

way differently. I mean, occasionally, there was a client who was not on

board, or an opposing lawyer who would treat me like some kind of little girl.

There was one, one that I did a whole week of deposition defense in Houston

that involved a case where a company had sued the union because there had

been strike violence on a picket line. And the lawyer representing the

company had been the national campaign chairman for George Wallace’s

presidential campaign only a few years before that. And he was one of those

who would just, you know, I don’t know that he ever actually said the words,

“You’re cute when you’re mad,” but that was kind of the message that I kept

getting. And he would…

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Ms. Upadhyava: That just makes me cringe!

Ms. Clark: Oh I know! He would call me things like, you know, sweetie or cutie, I, you

know, I don’t know. I controlled myself every day through those long

depositions and then I would go back to the hotel, which my local counsel

had, bless his soul, had booked me. He said, “What kind of hotel do you

want?” And I said, “well something with a swimming pool would be great,”

so I could swim laps. He booked me into a hotel that had an Olympic size

swimming pool. And I would go back to that hotel and I’d swim for an hour

and just kind of wash it all away, it was the only thing that got me through

that week of just really, really distasteful behavior by a male lawyer. But

most of the time, it was really, I never felt that I was being treated any

differently from other lawyers, and you know, if anything there was kind of

a…I may have benefited from the fact that I would walk into a room and as

soon as I established that I knew what I was talking about, that would usually

it would be like, “Oh, she talks. She knows what…she’s, she’s smart!”

Ms. Upadhyava: She speaks!

Ms. Clark: She speaks! Right. And as one of our friends, a woman who was in the

Solicitor General’s Office with Bill, said, “It was like Boswell’s dog,” she says,

“We women lawyers.” This is Boswell from like the 18th century London.

And his remark was that, it was just that his dog could talk, and everybody

marveled at the fact that the dog could talk, even though the dog didn’t talk

very well, and it was hard to understand what the dog was saying. And Sarah

said, “We’re like Boswell’s dog. Nobody expects very much from us,” she

says, “but when we can do it right, they take notice.” And I think that’s exactly

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the way it was. It was, you can go into a courtroom and start to speak and

you’re still a kind of novelty that not many judges had seen a lot of women

arguing cases. And you do it well, and it makes even more of an impression,

perhaps, than a man would have made arguing the same thing and doing just as

well. Still, there were places, there was a San Francisco courtroom I was in in

the mid 1980’s when I went in for a massive calendar call. So all the cases that

that district court judge had pending, somebody was there to tell him the status

of their case. Courtroom full of lawyers, I was the only woman in there.

Ms. Upadhyava: In the mid-80s?

Ms. Clark: In the mid-80s! Yeah. So this would have been about ’84, it might have been

’85, and I was shocked. I was sitting there looking around and thinking,

“Where are the women lawyers?” Now maybe there weren’t a lot of women

practicing trial law in San Francisco at the time, or maybe it was just a really

fluke coincidence that there weren’t any others there for that particular

calendar call, but it was very striking.

Ms. Upadhyava: How long, and I think we’re well past our time, so let me just ask, how long

before the next female, the second female attorney was hired at this firm?

Ms. Clark: You know I was just talking to one of my former partners about her today. I

think it was 1980, or early ’81.

Ms. Upadhyava: You were the only female attorney at the firm for about five

years?

Ms. Clark: Yes.

Ms. Upadhyava: Five, six years, okay. Well, I really wanted to next tackle, and we can do this

if you’d like in our next session, your most, I guess the first appellate

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argument you did and what that was like, because mine still gives me

nightmares, and your most memorable argument, to either the Courts of

Appeals or Supreme Court.

Ms. Clark: Okay.

Ms. Upadhyava: So, if that would be a good place to start on the next, I’m happy to keep going,

but I know we’ve been going for, you’ve been talking for about 2 hours and 15

minutes so…

Ms. Clark: Right, well, it seems like a good place to break, because it’s a slightly different

topic. So, definitely.

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ORAL HISTORY OF JULIA PENNY CLARK

Fourth Session

October 30, 2018

Ms. Upadhyava: October 30 at the Law Offices of Bredhoff & Kaiser, 5:28 pm. I’m here with

Julia Penny Clark. This is Moxi Upadhyaya. This is our fourth session and

oral history of Ms. Clark. During the last session, we discussed a few items

that Ms. Clark mentioned that she had prepared in the course of her clerkship,

and in correspondence, that she had discussed, but actually was lucky – well, I

was lucky to receive copies of them in between the last session and this

session; so we wanted to discuss them and we will append them to the oral

history. I’d like to start with Ms. Clark’s resume, which we found, which

appears, which she found, I can take no credit, appears to be possibly, I’m

guessing dated some time circa 1975.

Ms. Clark: Yes, I’m almost certain, yeah, well, it was the resume I used in applying for

a law firm job for when I finished the Supreme Court clerkship.

Ms. Upadhyava: And what Penny and I both sat and thought was interesting looking at the

resume today is that the resume reflects her incredible achievements in her

distinguished undergraduate career – the fact that she was first in her class at

UT Austin, Order of the Coif, and her service on law review, and other

accolades, as well as her first two employ – her published note and her first

two employers, Justice Lewis F. Powell of the U.S. Supreme Court and Judge

Braxton Craven of the U.S. Court of Appeals for the 4th Circuit, as well as her

references which I think any person would have loved to have. Justice

Powell, Judge Craven, Dean Keaton at UT law school, Professor Ward and

Professor Charles Allen Wright of Wright & Miller fame; and these

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phenomenal references, achievements, are listed in her resume but we were

both talking a little bit about the fact that one of the first sections of the

resume, or the first section of the resume, is information, personal information

– where she was born, when, her marital status and her height and weight and

I just have to ask Penny if you can talk a little bit about whether this was the

convention at the time in 1975 and what you understood other people to be

submitting in connection with their job applications or their resumes because

today, that would not – I certainly would not be putting my height or weight.

Ms. Clark: Neither would I. laughs.

Ms. Upadhyava: I don’t even think my husband knows that, so I just, I am really curious to –

and frankly, I mean it’s not in any way controversial, but I wouldn’t be

naming where I – I wouldn’t necessarily put my birthplace and it’s just a

really interesting section about your biographical information. I was curious if

you could talk a little about that.

Ms. Clark: Well, it certainly was my impression at the time that that was the convention

in resumes – that they did include that kind of personal information. The thing

that struck me when I read this was that it was in the top line rather than the

very bottom. Now, when you see personal information on a resume, certainly

an application for a law firm job, it’s the very last item, if it tells you that the

individual is married, or not married, or what their language skills and hobbies

are. It’s usually interesting but it’s the very last thing. The other thing that I

recall is that for at least students at the University of Texas law school,

preparing resumes for job applications and clerkship applications – they all

had a photograph on them, so that’s exactly what I was looking for when I

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found this was a copy of the resumes that I had printed for my law clerkship

applications from law school, and I could not find that but I do recall having a

photograph on mine, as did everybody else in my class.

Ms. Upadhyava: Oh you did?

Ms. Clark: Yes. No, I that was what we did, we would all go and have a photograph taken

and I can’t even now remember where I had a photograph taken. Nothing

comes to mind in the neighborhood of the law school, where I could have done

that; but there was a picture because I remember it quite clearly.

Ms. Upadhyava: Well, I have to ask a follow-up question which is the fact that you listed your

marital status and your height and weight. I mean, I cannot imagine a

scenario in which your height or weight would come up in a legal job

interview, but did your marital status ever come up in an interview for a

clerkship or a job?

Ms. Clark: Not that I recall. But it was right there on my resume. Laughs.

Ms. Upadhyava: That’s right.

Ms. Clark: No, I don’t remember anyone ever asking, but I didn’t – I haven’t applied

for any jobs since 1975.

Ms. Upadhyava: Lucky.

Ms. Clark: Yes.

Ms. Upadhyava: Do you know whether the men were putting this sort of biographical

information in their resumes? Do you recall whether Judge Bryson had done

so?

Ms. Clark: I think so. That’s my recollection was that was the standard practice.

Everyone did.

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Ms. Upadhyava: That’s really, really interesting and I had to ask about it because it’s really

interesting that, you know, now days, all the resumes I see, you’re right.

At the very end, have some, sometimes concocted personal interests so

that someone stands out, but clearly you didn’t need any such flourishes

on your resume, but yeah, that’s just a really interesting convention at the

time, so.

Ms. Clark: It is. It’s an artifact.

Ms. Upadhyava: Well, we will append that to it as long as you have no objections, we’ll

append that to your oral history. We also received a letter dated March 15,

1976, which is after Penny finished her U.S. Supreme Court clerkship and

appears had been probably a first or second year associate at Bredhoff &

Kaiser, although—

Ms. Clark: First year, right.

Ms. Upadhyava: Right. You may have received – I don’t know if you received credit for

your clerkship when you came in with a different status or that you were a

junior associate.

Ms. Clark: I was “the” junior associate in the firm, yes, and at that point, I’d been

practicing for three months, so, March 15, 1976.

Ms. Upadhyava: Okay. So it’s interesting to me – this is a letter that’s written – directed to

you, from Judge Craven on the Fourth Circuit and appears after some

introductory comments that you had sent him a brief that you had potentially

assisted on or worked on that had been filed in the Fourth Circuit and it

seems that you had reported to Judge Craven that you liked the work and he

writes to you that, “I’m so glad that you like your work. I had all but

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despaired of women really liking the practice of law, which has very little to

do with whether or not they can do it, but things are looking up.” Beginning

the first week of January, Susan, who is, as you said, Judge Craven’s wife,

but—–

Ms. Clark: Yes, yes, Susan Craven.

Ms. Upadhyava: —“got turned on by participation in a trial and has been turned on ever since.

This morning, she is in Bryson City before a federal jury trying to talk them

into a verdict in excess of $100,000. The defendant’s last offer was $75,000.

She works at least a 60 hour week but seems to love every minute of it and

previously did not. This is really interesting to me because it appears that at

this point, Judge Craven’s at least commenting, seeing some sort of shift in

women becoming more involved in the practice of law, as well as what clearly

appears to have been his long-standing hope that he would see that shift of

more women joining the practice of law. It’s clear from his letter that he’s

pleased with this.

Ms. Clark: Oh he was – oh yes, he was very much in favor of women practicing law and

generally had the view and expressed the view multiple times that he thought

in many respects women would be better lawyers than men. But he was

definitely not one to discriminate against women practicing law.

Ms. Upadhyava: Do you know whether the law clerk class after you, did he have more women

among his law clerk ranks after you?

Ms. Clark: He certainly had some after I left. I was not the last, but I don’t remember

any precise names or numbers.

Ms. Upadhyava: Another couple of documents that Penny was able to find is a

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memorandum that she wrote to Justice Powell, while she was a law clerk

on his staff, dated October 1, 1974. This is a memo, Penny, that I believe

is the one you were referencing in our previous session; is that correct?

Ms. Clark: Yes.

Ms. Upadhyava: You mentioned that the purpose of this memorandum was to advise Justice

Powell and give a recommendation for how he might tackle the problems of

equal protection, cases of equal protection laws applying to women.

Ms. Clark: Yes, that’s right. There were several cases that term and he, I assume he

asked me to do this, but I doubt that I undertook it entirely on my own

because it’s essentially a law review article. It’s 30 pages, no, 40, 48 before

the footnotes.

Ms. Upadhyava: Yes, yes. 54 is what I counted, but yeah, you’re right.

Ms. Clark: Yeah.

Ms. Upadhyava: That’s including the footnotes.

Ms. Clark: That the idea was to help him have a framework for thinking about the

several cases involving gender discrimination that the Court had to decide

that term. It may be that some of these had not yet – the petition had not yet

been granted. That seemed to be the impression I got as I was reading

through it. This didn’t, interestingly, this memo didn’t deal with Weinberger

Weisenfeld at all, so they must have granted cert in Weinberger v.

Weisenfeld at a later date, and then we addressed that afterwards, but I don’t

have a copy of that separate memorandum – at least not in that folder. I

might conceivably have one somewhere else.

Ms. Upadhyava: When you found this in your files, when was the last time you had read this?

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Ms. Clark: Oh goodness, probably 1974. I had totally forgotten that I had kept it and I

just looked in an old folder thinking I might find those resumes that I was

looking for and there were two memos on onion skin paper typed with carbon

paper that were definitely old memos. I had stashed them away.

Ms. Upadhyava: What was your impression when you reviewed this, October 1, 1974

memo?

Ms. Clark: My impression was that as a law clerk, I knew a lot less than I thought I

did. Laughs.

Ms. Upadhyava: Laughs. Why do you say that?

Ms. Clark: I suppose the tone of it comes across as rather overly confident that I figured

out just how to resolve all these problems. Laughs.

Ms. Upadhyava: Laughs.

Ms. Clark: I find that as I get older and older I have more doubt about things I used to

think were certain, but I did, I still agree with most of what I said here. I

wouldn’t, I think events have overtaken us in a number of respects and

now, 26 plus 18, 44 years since I wrote this, but I think I still have the

basic beliefs and inclinations that this memo reflects.

Ms. Upadhyava: There are few parts of the memo that I wanted to point out and get your take

One overall comment I’ll make is that there are portions of the memo

where you definitely discussed pending cases, past jurisprudence of the

Supreme Court and recommendations that you make based on the standard

and the law; but there are also sections where you are discussing the climate,

the history of the civil rights movement, the differences between the equal

rights movement for women versus the civil rights movement for minorities,

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or African Americans, and it appears that a lot of your observations, your

opinions, may have been based on your personal experience or possibly your

opinion which obviously was borne out of your having reviewed a significant

amount of case law and statutory authority. I’m curious to know whether you

think that you were probably the only person in chambers who could have

taken on a memo like this and given this sort of nuanced overview of the

movement itself and opinions as to how to move forward; and if you’re too

modest to say whether you were, whether you think Justice Powell asked you

to do this for that reason?

Ms. Clark: You know, it’s hard for me to say. I think, and the chances are good that I

discussed this with my fellow clerks as I was working on it. I probably

wasn’t just totally isolated and not talking with them about their views. I

would guess that – and you also have to take into account that to some extent

this is colored by the fact that my audience, Justice Powell, had already stated

some views in the area and had signed onto some decisions so that clearly I

wasn’t going to come in and say, I think you should throw overboard

everything you’ve done so far in the area of gender equality and gender

discrimination. So the objective was to try to help him think about these new

issues as well as the other issues that were likely to be coming up after this

immediate batch of cases; and harmonize them with the views he had already

mapped out for himself. One of the things to recall is that when he was

appointed to the Court, he had a long and very distinguished career in

business law. He had very little exposure to Constitutional law of any

character, except as it related to taxation, which he had done some of. He had

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very little exposure to criminal law, so he made clear to us law clerks early on

that he was relying heavily on us to provide for him the background that he

would need in any constitutional or criminal law cases, to understand where

the immediate issue fit into the broader jurisprudence in that area. He was

much more inclined to feel that he could, on his own, work his way through a

business law case without special help from his clerks, so I think he must

have asked me for this soon after I arrived in chambers. It represents a lot of

research and it’s dated October 1, so whether he particularly thought that I, as

his first woman law clerk, was the right person to help him find his way

through a thicket of rather challenging gender discrimination issues at the

time, or whether it was the outgrowth of just some kind of random

assignment process that I ended up with these cases and then I was the one to

write it. I’m not sure. But I, somehow I wouldn’t be surprised if it was not

random – either because my fellow clerks may have said, oh you should take

these cases; these will interest you – not that they would have necessarily

thought about them differently, but they may well have been thinking, well,

of course you should take the gender discrimination cases.

Ms. Upadhyava: Well, you managed to turn the memo around pretty quickly because you started

in August.

Ms. Clark: In August, yes.

Ms. Upadhyava: By October 1 had submitted it to the Justice.

Ms. Clark: Right. And in between that —-

Ms. Upadhyava: —-not enough work to do—

Ms. Clark: —right. As I was telling you last time, this was a very, very intense job and

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there was a lot of work going on in chambers. That was between August and

October 1, we were also getting ready for the first conference on cert

petitions. The first Monday in October, you come in and you’ve got a pile of

cert petitions up to the ceilings and the court has to vote on which ones it’s

going to take and we were preparing for the first month of oral arguments, so

there was a lot of work going on during that period of time. I see that I cited

some law review articles. I am quite impressed that I managed to find time

to read them.

Ms. Upadhyava: Laughs. Well, it’s really impressive. I have to direct your attention to page 10

of the memo. This is – in reviewing this – there are really interesting, really

interesting parts of this memo, but in analyzing the differences between – one

of the threshold ideas that you had to explain and distinctions you had to

make, or thought you had to make at the beginning of this memo was the

difference between the civil rights movement and the movement for women’s

equality and you make a really cogent argument, you know, persuasive

argument for how they are different and one of the primary reasons being that

women have been – or have either – if they haven’t been directly involved in

the political process, they’ve had access to those who are directly involved in

the political process. At least they had more access than oppressed, other

oppressed minorities; and in your analysis, you state, and I quote, “the most

critical difference between racial discrimination and sex discrimination is that

many women still want and need the special protection of sex based

distinction. It might be reasonable to take the special protection away from

women of my generation. At this time you’re about 25, 26?

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Ms. Clark: 25, I think. 26 at most, yeah.

Ms. Upadhyava: Who have had much the same educational and career opportunities that men

have had. Equal pay laws could take up the slack, but many women were

denied the opportunity to prepare themselves for equality. They want and need

laws that give them economic protection and it would be unwise, if not unjust,

to take their protection away in the name of equality. I wanted to get your

thoughts on that comment and looking back on it, what you were thinking at

the time, if you recall, and what you think of it now.

Ms. Clark: Well the context of course was that there were many people at the time

including now Justice Ruth Bader Ginsburg who are arguing that sex should

be determined to be a suspect classification with what was widely regarded

as the necessary effect that no gender classifications could withstand equal

protection review; so if it’s a suspect classification basically, there will be no

laws that make a gender classification; and it seemed to me, and I knew from

conversations with Justice Powell, that he was strongly of the view that there

are indeed differences between men and women which can, and should be,

taken into account for certain purposes, but that the law needed to deal with

the kinds of things that were – that the Constitution needed to deal with –

laws that were intended to keep women from advancing, to keep women

from being equally educated and having equal opportunities. One of his

daughters is a lawyer and so he clearly had her in his mind. His wife was a

stay-at-home mother/housekeeper, not housekeeper – she always had a

housekeeper – but house, uh a stay-at-home—-

Ms. Upadhyava: A homemaker.

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Ms. Clark: Right. She had a very gracious home. She played tennis. She had lunch with

her friends. [She also did community work and was on the Board of the

Colonial Williamsburg Foundation.] Lovely, lovely person, but I doubt she

had ever worked for salary or a wage and in fact, I think it was our first – I

think it was the year we were law clerks, she invited the law clerks over to

their apartment for Thanksgiving dinner and she told us, this is the first turkey

I ever cooked myself. So, in his mind were these two distinct groups of

women: the younger generation who were trying to make their way as equals

in the world of work and economics and on the other side, the women who

had devoted their lives to making homes for their husbands and their children.

I was very much in tune with that because my mother was one of those

women. She didn’t have all the advantages that Jo Powell had but she had

given up her career to make a home for her husband and her children, and I

felt very strongly that it would be a very poor use of equal protection law to

say that those laws that were intended to protect her and women like her, such

as social security provisions providing income to widows, that you should take

those away in the name of equality when those women had no choice. They

couldn’t go back and retool as you would retool a factory or a business and

say, okay, things have changed. They were past the point that they could then

go back and prepare themselves for a career and earn a significant amount of

money. So the challenge in the gender area was to say how do we distinguish

between those things that are legitimate and that are needed given what our

society has done to hold women back up until this point; and those things

which would continue to hold women back if you don’t change them; and so,

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one of the points I made in here – I reread this this morning – was that some of

these kind of transitional things really have to be done, not by the courts, but

by legislators – that there need to be the kind of refined attention that could

say we’re going to protect a group of people who have reasonably relied on a

situation that has been in place for a long time, while at the same time making

sure that this distinction based on gender doesn’t hold back women who are in

the new generation and ready to move forward. So that was definitely one of

the themes of my thesis – that, and I knew that it resonated with him. I knew

that it was important to him as well because he recognized that there were

many women like Jo , who needed the protections the laws provided for

widows who had devoted their lives to making a home for their family.

Ms. Upadhyava: You had – your opportunities – you’ve received – you thought by that time,

given your own experience, that you – things had reached ———

Ms. Clark: —an acceptable level. It’s interesting because obviously we had a long way to

go and we still have a long way to go, so it’s not as though the problem was

magically solved by – and I don’t mean to even imply that—-

Ms. Upadhyava: Yeah, no.

Ms. Clark: I think I was probably overly optimistic at that time and I was assuming that

things were better than they were, and better than they even are now, maybe,

but it certainly – I could see the change as we’ve discussed before. It was a

period of rapid change, women entering professions and entering fields that

they had long been excluded from, or at least had been tiny minorities in.

Ms. Upadhyava: Continuing on about the memo, is there anything that stood out to you,

that you were, you know, as you were reading it?

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Ms. Clark: Oh, quite a few things did, but one of them, again on the gender classification

theme on page 16, I was discussing a Utah statute, which required child

support for males to the age of 21 and child support for females to the age of

18, except that marriage would terminate it in either case, at a younger age.

But the Utah Supreme Court tried to justify the favored treatment of males on

the ground that it is quoted as a salutary thing for the male to get a good

education and/or training before he undertakes the responsibilities of

providing a home for his family, and then women, females, the court said,

tend to get married sooner. Since the earlier age of marriage was going to cut

off child support in either case, that wasn’t a suitable basis for the distinction

and I noted the only distinction left is the notion that the state should give

males an enforceable source of support up to the age of 21 so that they can

educate themselves while the female is left on her own at age 18 because she

has a lesser need for education and then I put in, Pardon my outrage! I was

clearly not buying the notion that fathers should be able to stop supporting

their daughters when they reach age 18.

Ms. Upadhyava: Was this one of the cases that the court was reviewing? Or was this in your –

actually I can…..here’s what it was. Stanton v. Stanton.

Ms. Clark: It looks like there was an appeal pending so this was under the Court’s

jurisdiction, which was an appeal as of right, from a State Court of Last Resort

upholding a statute against the constitutional challenge. I don’t recall what the

Court did. I would hope they did exactly what I recommended which was

simply to reverse summarily.

Ms. Upadhyava: That might be interesting——–I’ll have to go back and take a look.

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Ms. Clark: ——–yeah, it should be reported in that term.

Ms. Upadhyava: Any other thing that stands out – any other parts of the memo you’d like to

discuss.

Ms. Clark: Well, one of the things that really struck me because I was discussing racial

discrimination in a lot of places as the pattern against which gender

discrimination issues should be judged, not necessarily ending up with the

same result is that I used the word “Negroes” to refer to what we now call

African Americans, and I remembered that Justice Marshall strongly

preferred the word Negroes and as he described it, he said, I fought so many

years to get people to use the word Negroes, I’m not giving up on it now; and

that was when there was a tendency to use the term “black” or “blacks” as a

substitute and he really did not like the substitute. So, I think, at least within

the Court, there was a tendency to use the word Negroes at the time. You’d

have to go back to look at the Court’s opinions from that term to know if

that’s the way the Court, in its public- facing writings, did the same thing.

But that was something Justice Marshall had a very, very visceral reaction to.

Ms. Upadhyava: And he had communicated that to other members of the Court?

Ms. Clark: Oh yes, yes. He was not shy about making his preference clear.

Ms. Upadhyava: It’s a period piece.

Ms. Clark: It definitely has its time and place in those days when the debate was should

gender be a suspect classification. Should everything, every distinction based

on gender be nullified and so at least to the extent that my answer was no, I

guess I come out on the right side of history.

Ms. Upadhyava: I’d say. Then we have a November 1, 1974, you liked – a memo to Justice

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Powell – you liked to give him memos on the first day of every month.

Ms. Clark: Well, because the cases were argued in the first week.

Ms. Upadhyava: Ah, okay.

Ms. Clark: So that would be the reason. This is the case that I mentioned in the last

interview of Connell Construction Company. I got some details wrong, as I

learned in reading that; and the issues were, as I said in the first line, this is a

complex labor antitrust case and when I reread it, it was so complex, I still

didn’t understand everything I wrote here. (Laughs) But looking back after all

this time, I have had many occasions to reread the opinion in my practice for

labor unions and I think, as I may have said last time, basically I took too

much credit in writing the opinion for thinking I had come up with something

new when it would have been simpler and more direct to deal with it without a

construct that law clerks love to put out there.

Ms. Upadhyava: Well, thank you for these papers. Like I said, we will add them to the

appendix.

Ms. Clark: And we probably should just make a note that the originals are in the Powell

archives at Washington & Lee Law School and they are open to researchers

along with all of the other memos that went back and forth.

Ms. Upadhyava: Well, I appreciate that because when you sent them to me, my first question

before I got the end of your email was whether these were documents that we

could release and so I appreciate that we have that liberty. We spoke in the

last session about your first several years at Bredhoff & Kaiser and the work

you were doing. I wanted to, kind of as a way to discuss, some of the

hallmarks of your career here – talk about some of your more notable cases

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and one thing I always like to talk about is a person’s first, a litigator’s or an

appellate advocate’s first oral argument because I find, at least in my

experience, I remember every single minute of it and preparation, the

argument itself and the nerve wracking anticipation waiting for the opinion,

and then getting the opinion and I wanted to talk to you about your first oral

argument and what the case was about and what your experience was like.

Ms. Clark: The first oral argument that I did was in a case called Cooper v. Kingsville

Independent School District. It was on behalf of a classroom teacher, Janet

Cooper, who was teaching middle school social studies, and Kingsville is in

Texas near the King Ranch, Kleberg County, which Kingsville is the county

seat of. It’s the location of the King Ranch so it’s a lot of open range, very

western and southern. She was doing a unit on civil war reconstruction and

she had a teaching device that was called the Sunshine Simulation. She

assigned roles to the various students in the class and some of them were

northerners doing reconstruction. Some of them were white southerners and

some of them were former slaves. The community erupted. That was – the

parents of the students who were assigned roles as slaves were outraged.

Ms. Upadhyava: To a person.

Ms. Clark: Well enough of them that it came to the attention of the school board and she

was fired. Now they had a kind of a flimsy excuse that there were some other

complaints about her, but those were all extremely minor. She was a member

of the National Education Association, which is a union of teachers and one of

the programs they have had for many years is called the DuShane Fund, which

funds First Amendment and due process litigation on behalf of teachers who

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have had their constitutional rights denied. For a long time we did a large

number of the appeals in those cases. Someone else would try the case and then

the appeal would come to us if it was approved – if the people running the

DuShane Fund concluded there was enough merit, that it ought to be one of the

ones to be financed and then we, there were two other law firms that did the

DuShane Fund appeals, but we had a pretty steady flow of them for a long

time. The union now does these mostly in house with a very good legal staff

there. But at the time, we were assigned to the Cooper v. Kingsville

Independent School District case on First Amendment grounds. This was a

teacher who was teaching and she was exercising her First Amendment rights

within the bounds of the curriculum and she was fired for it. So, a very good

trial lawyer tried the case and won it at trial and the school district appealed so

this was to the Fifth Circuit and I must have spent hundreds of hours writing

that brief. It was sort of my only focus at the time and I researched every

conceivable issue that might come up. I can’t remember now if there were

procedural issues as well as the First Amendment issue. The First Amendment

issue was clearly the main issue. When it came time to argue it, I remember

being in New Orleans the night before the argument, and practicing my

argument over and over again in front of a mirror. I must have been up until

midnight just doing my – I was of course petrified with fear and nervous

tension – and I don’t remember a thing about the argument itself. But when

the Court had finished its thinking about the case, they came out with an

opinion in favor of the teacher and they ordered the school district to reinstate

her to her position, pay her back pay and pay her attorneys’ fees. I do

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remember my one occasion ever having to testify in a courtroom was in

support of the attorneys’ fees. (Laughs) Several years later, but I remember

that it was a good one. We had others. My favorite of all the DuShane Fund

cases, which was one that I was unable to argue because of a scheduling

conflict and I had to turn it over to somebody else. I think I had written the

brief. It was in Kentucky. It’s in this list. Let’s see if I can find the name

quickly. It was – well, I thought I had marked it, and I probably did but now I

don’t see it. It’s Banks v. Burkett. That’s it. Banks v. Burkett, Sixth Circuit.

And this was a teacher who had the bad judgment to campaign against the

wrong candidate for the school board and when his candidate lost, he was

suddenly transferred. He wasn’t fired. He was transferred to a place that was

about an hour and a half drive away, over the mountains and this, and I swear

this is true. The name of the place to which he was transferred was “Kingdom

Come”. They sent him to Kingdom Come and I really, really wanted to be the

one to do that oral argument but somebody else had to argue it. We won it, so

he was also ordered reinstated to his job near his home where he wouldn’t have

to drive over the mountain every morning no matter how rainy or icy it was.

So he was brought back from Kingdom Come.

Ms. Upadhyava: Oh my gosh.

Ms. Clark: But we had a steady flow of those and they were a lot of fun.

Ms. Upadhyava: Now how is it that as a fifth year, a fourth year associate, you were able to

argue a Fifth Circuit appeal.

Ms. Clark: Small firm. And a lot of appellate work, so that was, I would think it was

relatively standard for us at the time that people were actually on their feet

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arguing appellate cases in their first few years at the firm.

Ms. Upadhyava: Did you feel after the Kingsville v. Cooper case, did you feel that you had

done a good job isn’t the right phrase. Were you happy with the actual oral

argument that you gave?

Ms. Clark: I’m sure I came away, as I have after every single argument that I’ve ever

done, thinking there was at least one question that I could have answered

better. But I don’t remember that specifically from that one case. I just don’t

think I’ve ever come away from an oral argument without thinking that I’ve

missed an opportunity – that there was something I could have done better.

Ms. Upadhyava: How did your clerkships on the Fourth Circuit and in the U.S. Supreme

Court shape the way you approached your preparation for these oral

arguments?

Ms. Clark: Well, I definitely had a good sense of what works in oral argument and what

doesn’t. I knew point number 1, do not read your argument. I knew that I

needed to be prepared for the hardest questions with the best answer that I

could think of ahead of time, not trying to do it all on the fly, and I had a

pretty good sense that within those bounds, if I prepared, if I knew my record

and I knew the case law that applied to the issues the parties had briefed, and

then I thought about are there any other things that are kind of lurking out

there that the Court may want to know, even though the parties didn’t brief it,

then I would be prepared and that’s sort of, that’s informed all of my

arguments ever since.

Ms. Upadhyava: Okay. Well, there are two Supreme Court cases that you argued. I’m happy

to go to those, if you like, unless there is another argument or case that you,

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along the way, want to discuss, that you’ve handled before you got to those

two cases.

Ms. Clark: There were a lot of them actually. I’ve done – I was counting them on this

list – more than 30 appellate arguments of which I count only 7 to be losses.

Two of them were sort of either a split verdict or a split ruling so we won on

some things, lost on others, or it wasn’t entirely clear who won. Yeah, it is

remarkable; and I’ve done nine or more trials, all of them in federal court,

plus some trials of arbitration cases. So, to kind of round it out, for the last 30

years, almost 43 years. I’ve also had a very substantial practice counseling

employee benefit funds, so that I always felt I had the benefit of I was a

person sitting at the trustee table who not only knew the law, but I also had a

good basis for judging could you win this in litigation if the issue came up.

That’s kind of unique. Most employee benefit lawyers are either litigators or

they do the counseling work and I’m one of the very few who has done both

and I always thought it helps me on both sides. In litigation, I understood the

decision-making process; and sitting around the table with trustees, I was able

to say to them, you really should do X because you’ll never be able to

persuade a court that Y is the right answer. So, it’s been a busy practice but

there was a whole complex of cases in the late 1980s and early 1990s that

were known in the office here and by a lot of other people as The Evergreen

cases, which involved the United Mine Workers pension and health benefit

funds. There was a contract clause that had been negotiated in 1978, which

essentially said as long as the Bituminous Coal Operators Association, which

was the big multi-employer association at the time for coal employers. As

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long as the association is party to a collective bargaining agreement that

requires contributions to these benefit funds, the employers who have signed

onto the funds must stay and must contribute at the same rate as the

Association has agreed to. But there was a period of time when lawyers for

the fund were somewhat skeptical that that clause could possibly mean what

it said, or could be enforced if it did and so it fell into disuse and it didn’t

spring back up again until the Pittston Company went into a long strike

in1988 and everybody said we can’t let Pittston leave this fund; it’s a very big

coal producer. Somebody said, we’ve heard rumors that this clause over here

is something that would make the employer stay in the fund. They came to

We hadn’t been representing them on anything else. I guess they thought

given the history of other people ignoring or being skeptical on it, they

wanted to get a fresh opinion and we took a close look at it and said, yeah, it

certainly seems to say what you think and we don’t see any reason why it

shouldn’t be enforced. We embarked on a long period of litigation to enforce

that clause, which we won on summary judgment in Judge Hogan’s court and

then managed to multi-district a whole bunch of other cases into his

courtroom. We went to oral argument in the D.C. Circuit, which would have

been around ’94, ’93 or ’94. What I recall from that argument, which was

really a very good one, we were the appellee and so, as is always the case

when you’re the appellee, the other side files a reply brief that you don’t get

to respond to. In the reply brief, the lawyers on the other side had dredged up

a bunch of cases that really didn’t have anything to do with our issue, but they

were presenting them as dispositive cases and I’m preparing for the oral

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argument and I’m thinking somehow in my 15 minutes I’m not only going to

have to make my affirmative case, but I’m going to have to explain why it is

that these three cases don’t do what the employer says they do. So, I’m

sitting at counsel table and up comes the employer’s lawyer and he hadn’t

gotten three words out of his mouth when Judge Edwards, who was the

presiding judge, said, you have cited these three cases. They have nothing to

do with this case. I’m sitting there going, “oh yes, yes, yes, yes, yes.”

Laughs. It went uphill from there, so it was one of those wonderful,

wonderful moments when the court has seen through a ruse that the other side

has come up with and it’s a delightful experience, one of my best. That

litigation carried on for several years after we won the Court of Appeals

decision. There were other Court of Appeal cases. There were other District

Court decisions. Ultimately the Funds collected something on the order of

$170 million as a result of our efforts in supporting that clause.

Ms. Upadhyava: I’m sorry, go ahead.

Ms. Clark: No, go ahead. I’m done.

Ms. Upadhyava: At this time, are you, as you’re giving – do you remember what year you

became partner?

Ms. Clark: ’81.

Ms. Upadhyava: Okay. So, a quick five-year trajectory from—-

Ms. Clark: —-which answers the question, did I have credit for my clerkship years?

That was the answer.

Ms. Upadhyava: Laughs, yes. Or, you know, they just didn’t want to lose you and wanted to

make sure you made partner. How is business development coming into all

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of this? How are the cases coming into the firm? Did you have participation,

in that did you bring these cases into the firm? Or was it that you had some

institutional clients who may be the NEA or from the DuShane Fund that

were providing these really high quality, interesting cases.

Ms. Clark: The core of the law firm’s work has always been the large institutional clients.

The United Steelworkers of America, the National Education Association were

the two largest at the time I joined the firm. There was one other which was

called the Industrial Union Department of the AFL-CIO, which was

effectively the old CIO under the AFL-CIO umbrella. It was a slightly smaller

volume of work, but primarily it was Steelworkers and NEA. Initially, that

made up nearly all of my work. There was plenty of work to do for those two

clients and a few smaller clients that I worked on, but starting fairly early, I

would get calls with some one-off case that somebody would want me to work

on, so I was bringing in little dribs and drabs of business over the years. Like

all successful practices that line has sloped upwards, so at this point, I get calls

from people who want me to represent them and then the work is coming to

me and I parcel it down to younger people who worked with me and for me.

There was just a gradual progression over the years as my work came to be

known and my clients would talk to other clients or people would see me in

certain areas of litigation. My focus since about the mid-80s has been work

for multi-employer pension and benefit funds and it’s not exclusive, but that’s

been a large majority of what I’ve done and I think that’s where I’m best

known. So in 2010 or maybe 2011, a group of multi-employer funds, pension,

health and 401k plans came to me and said, we lost a lot of money in Madoff

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investments and we’ve got some litigation going, most of it in groups of other

clients against the bad actors in the matter, but we really think that we need to

have somebody look at and advise us whether there are other people out there

who we ought to be suing on our own and so that led to a large volume of

work that we did for those funds and ended up recovering a significant amount

of money for them, in addition to what they recovered from other sources.

That was fascinating work. We dug into the whole, all the details about how

Bernie Madoff got into this Ponzi scheme, from being a very well respected

broker, President of the Stock Exchange, and Chairman, whatever the right

title is, whatever he was, and how it had gone undetected for so long, which

was fascinating. So the kinds of details – like I go from the coal industry and

how the parties negotiated their collective bargaining agreements for

contributions to the health and retirement funds, and then Bernie Madoff’s

Ponzi scheme and lots of other things in between. It’s been a wonderful

variety of things.

Ms. Upadhyava: Was there an expectation that I’d say when you first became partner and then

as your career has progressed to today, has there been an increased pressure

on business development. I found litigation and business development, it

can be difficult and have heard that from many others who are in litigation.

Or did you find that people generally found you, based on the work you’ve

been doing?

Ms. Clark: More the latter. We always had these stable clients, which most of the time

brought in enough work to keep the lawyers who were here busy and so

nobody was ever saying, you need to be going out and generating work. I

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mean there were a few things we did like they would ask me to make a

presentation to, there’s a whole organization of lawyers representing labor

unions, for example, and I was regularly asked to do a presentation of some

sort or another at one of their conferences, so that the lawyers who were

making decisions about hiring outside firms for their labor union business

would see me there and bring work. In fact, there was the one case that I

got from that which was I can’t even remember what the presentation I did

was. I don’t think it had anything to do with this, but the New York Transit

Union represented subway workers, had gone on a strike. This was

probably their last actual strike in the early 80s, ’82, maybe and they got

sued by a couple of law firms that said we incurred damages because you

were on strike. We had to put up our employees in hotels and we had to

pay for limousines to bring them to work and so we’re suing you on behalf

of a class of all the businesses in New York City for all of the damages that

all the businesses in New York City suffered for however long the strike

was, 3 days or something like that. For that purpose, I had to learn all

about a New York state doctrine called the Prima Facie Tort, which I had

never heard of before, and essentially it’s often described as the Court

thinks it’s bad; therefore it’s a tort. But it’s not quite that simple and I

spent, and I remember this was the summertime because it was deadly hot,

in the dustiest parts of the Justice Department Library digging through

really, really old New York Court of Appeals volumes and finding what

there was, like Justice Cardozo and opinions that went way back like that,

about the limits on the prima facie tort. I didn’t argue that case. The client

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argued that case in the New York Court of Appeals but we won it, so the

lawsuits were dismissed, no damages. So I mean, these kinds of things

would just kind of drop down like a manna from heaven, at various times,

like I would do these conferences but there was never a lot of pressure to

do it and I think primarily it was just referrals either from clients that were

satisfied or people would see my work and would come and ask me to do

things. In ’93, the autoworkers’ union came to us. We’d done some work

for them now and then over the years, but they’d never been one of our

steady clients. They came and asked me to do a case involving a lawsuit

against Navistar International, which makes big tractor trailers – not really

tractor trailers, like construction equipment tractors – those sorts of things,

and their retiree health benefits. We did some litigation – well, most of it

was about venue, fighting over where the case was going to be litigated –

and then the parties reached a settlement, which I can’t take any credit for.

It was a class action settlement on behalf of all the retirees and we had to

get court approval; so not only did I have an argument before a very good

judge in the southern district of Ohio, who I’ve seen several times since

then, Judge Walter Rice, but we went on a dog and pony show to the cities

where most of the Navistar employees were. In one place, they rented this

huge arena and we were up on the stage explaining the terms of the

settlement in an effort to persuade the retirees to not object, I guess is the

way you would have to put it. But that led to a long stretch of work for the

auto workers on other retiree health cases, including the last trial that I did

in 2010, a jury trial in Abingdon, Virginia, for Volvo truck assembly

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workers. So, these things, you know, you get one thing and then over time,

it would turn into a lot more activity and it’s been nice.

Ms. Upadhyava: Yeah. Very interesting cases too, which you don’t always get – that’s the

really interesting part.

Ms. Clark: That’s right. They are very interesting cases, very interesting cases and—-

Ms. Upadhyava: So, Penny, you had mentioned there was a trial that you had participated in that

you wanted to discuss.

Ms. Clark: Right. This is a – in 2010, it was for the autoworkers representing a class of

retired truck assemblers. They worked at a Volvo truck assembly plant that is

in Dublin, Virginia, way out in the western stretches of Virginia, and the trial

was a week long. One of my class representatives whom I was … there were

probably five retirees, that were class representatives … and one of them was

a very large man, like, 6’7”, 6’8”, maybe a couple hundred pounds, really still

very strong, even though he had been retired for several years. After the jury

came back with the verdict in our favor and everybody pretty much left the

courthouse, there were still some retirees around. This one client said to one

of his friends, he said, “You know, he says, she can’t build a truck but she’s a

pretty damn fine trial lawyer”. Then I came back here to my office I got a call

from a woman who was one of the retirees who wasn’t a named plaintiff but

she had been one of our kind of liaisons to people; helping find witnesses and

the like. She said, I just have to tell you this. She said, all this time you’ve

been coming out to the local union and meeting with people and getting ready

for trial. I had one associate working with me and she was a second-year

associate, so it was – and the paralegals were all women – so it was an all144

female trial team. And she said, “I heard a lot of grumbling. Why did the

international union send us these women to represent us; and they were all

very skeptical that you guys could do the job”. She said, “I was in the

courtroom when you gave your opening statement and when we went out and

took a break after that, somebody came up to me and said “Wow, she knows

everything”. And she said, “I haven’t heard a single complaint since then.”

So, my takeaway from that is sort of back to Boswell’s dog, which is people

are surprised when we women lawyers can do anything at all. They don’t

expect us to be really good. But when we’re really good, it blows them away.

So here we are in this tiny corner of rural western Virginia. There are at least

now a few dozen, a few score, we had a lot of people in the courtroom over

the course of the trial…so maybe a couple of hundred folks who know that

women lawyers can do a really good job for them. So, you know, I feel like

that kind of experience makes it easier for the next woman lawyer who’s

going to go in and represent people in that area. But at least the ones who are

in the courtroom and who knew that we … that our all-female trial team

managed to beat the pants off that all-male trial team on the other side of the

courtroom and preserve their retiree health benefits.

Ms. Upadhyava: And this is in 2010?

Ms. Clark: This is in 2010, yes. Yes.

Ms. Upadhyava: Well, I will surmise that I’ve served … that I still think that a trial bench …

that the bar of trial lawyers is still heavily male dominated. But, you’re

right. I’ve had the same experiences when I’ve had a good day in court and

… you’re right. It’s almost a war won really on these singular battles and

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moments.

Ms. Clark: Yeah, individual accomplishments and in public so that people see that

women lawyers can be just as good as or better than the men. So, anyway, I

just wanted to pass that along.

Ms. Upadhyava: And, I appreciate it.

Ms. Clark: But, you had asked me to talk about the Supreme Court cases?

Ms. Upadhyava: Yes.

Ms. Clark: I’m going to start with the one that should have been my first Supreme

Court case but wasn’t. Goodman v. Lukens Steel which was a case I tried

in Philadelphia probably in 1981 or thereabouts. It was about a 32-day

bench trial; and then I argued the Third Circuit appeal and the Supreme

Court granted cert on our petition and … actually, I guess it was the

plaintiff’s petition but we cross-petitioned on our issue, and they were both

granted. It would have been mine to argue except my first child had the

bad judgment to be born the week before the argument. So, I wasn’t about

to try to prepare for an argument for a Supreme Court case a week after

giving birth. I’m sure there are some women who are tough enough to do

that, but I didn’t think it was a good idea. So, I sat at counsel table and

participated as a first chair to the lawyer who actually argued it. I passed

him notes and corrected him at least once when he misstated the record.

Ms. Upadhyava: A week after having your first child?

Ms. Clark: Yeah.

Ms. Upadhyava: You were sitting at counsel’s table?

Ms. Clark: Yeah, I was. My mother came and she took care of the baby while I

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went to court.

Ms. Upadhyava: Okay.

Ms. Clark: But, the first case that came to me actually to argue was Beck v. Pace

International Union in 2007. To say that it was a highly technical pension

issue is an extreme understatement. But the gist of it was that an employer

wanted to terminate its own defined benefit pension plan and purchase an

insurance company’s annuities to pay those benefits in the future. The union

tried to persuade the employer instead of purchasing annuities, to merge the

assets of that plan into a multi-employer plan where the employees could

continue to earn more benefits. So, for instance, you take somebody who’s

maybe got 10 years of service, their benefit is going to be very small. If they

can continue earning benefits then when they came to retirement they would

actually be able to retire with a decent pension. The employer wasn’t

interested – simply said no, and the union sued. We weren’t even involved in

any of this. The union sued in California to get a judgment to say that the

employer had breached a fiduciary duty by not even considering that

possibility of the merger; and, they won it in the Ninth Circuit, at which point

the Supreme Court granted cert. The client, which was the Steelworkers, the

union Pace was the paper workers, which had merged into the Steelworkers

somewhere about that time. The Steelworkers’ general counsel knew why the

Court had granted it. It was a total one-off case. It was a unique case and

there was no conflict in the Circuits. There was nothing except there were at

least four justices of the Supreme Court that thought this was wrong and by

God we’re going to fix it. So the Steelworkers’ general counsel hired us to do

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the Supreme Court brief and argument and asked specifically if I could do it,

and bless his soul, he said “We don’t expect to win this case.” He said, what

we want to do is to, at all costs, preserve the ruling of all of the Courts of

Appeals that when an employer is trying to figure out what to do with the

assets of a pension plan that it is subject to its fiduciary duty, it has to make

those decisions in the best interest of the people who are benefitting from the

plan, which is a pretty important ruling. It means that if they were then going

to go to that insurance company and buy annuities, they would have to make

sure the insurance company was a solid insurance company, that it wasn’t just

the cheapest bid for the annuities. So, that took a lot of pressure off me. I

mean, here we were briefing and arguing this incredibly technical issue on a

sub-sub-subsection of ERISA and many opinion letters by the Pension Benefit

Guaranty Corporation that sort of tangentially had some relevance to it. As it

turned out, we ended up with a major Chevron deference question, and Justice

Scalia was still alive and he was really big on Chevron deference. So, we

wrote the brief and I prepared for argument with the total intent of yes I want

to win this case if at all possible. Just affirm the Ninth Circuit; it’s okay. But

also knowing that my client was not going to be devastated if we lost as long

as we could preserve this legal principle that they were most concerned about.

So, it took a lot of the pressure off being my first Supreme Court argument;

and, the main thing I remember as I was getting ready … I went over the day

before my argument and listened to some totally unrelated arguments, just

because it had been a number of years before I, since I had been at the

Supreme Court for any oral argument; and I just wanted to kind of get myself

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back into that atmosphere. I remember thinking I wasn’t nearly as nervous as I

had been just a couple of years before when I was going into the Fourth

Circuit to defend a jury verdict on behalf of a different class of retirees, a class

of retired rubber workers. That was really fresh in my mind at that time, and I

had been just absolutely terrified because in the Fourth Circuit you don’t know

who your panel is until you show up the morning of the argument, and there

were still plenty of conservative judges who could have been on my panel; and

judges are surprisingly resistant to these retiree cases, and so … I had come to

really, really love my retirees when I was trying the case in North Carolina. It

was a two-week trial and they were there for us every day bringing us home

baked zucchini bread and hugging us in the hallways between, when there was

breaks, and I really, really cared about those retirees and I really, really cared

about the outcome of that case and I went into that argument terrified. I went

into the Supreme Court argument just nervous. It was a big difference, and to

me, the biggest difference was just that there were nine of them, and I knew

who each of those nine was, and I had a pretty good idea where each of them

was coming from, compared to the Court of Appeals where you walk in and

you find out the panel the morning of the argument and you get three names to

put with faces, but you don’t really know the jurisprudence that each of those

judges represents. So, there’s a lot more uncertainty in the Court of Appeals

argument. With the Supreme Court, you know pretty much where each of

them is coming from, and I thought I did quite well at the argument. I, the

questions came rapidly and I fielded them all. There was one when Justice

Breyer asked me a question and it wasn’t one that I had anticipated, so I was

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sort of turning over in my head, what’s the best answer to this, and he leaped

in and said, “I knew it; you wouldn’t be able to answer that question.” I just

smiled and said, “Justice Breyer, I was just trying to make sure that I

understood the question before I started to answer it.” I thought why would he

be “I knew it, you wouldn’t be able to answer that question.” As it ended up, I

lost nine to nothing, but Justice Scalia who wrote for the Court said that I

made my clients’ position seem almost reasonable and we preserved the

fiduciary principle that the client cared about. So, I counted that as a victory in

a case they had granted for the clear purpose of reversing the Ninth Circuit.

That was the best I could come out of that case with.

Ms. Upadhyava: Sure.

Ms. Clark: The second one was harder. I’m not going to say we lost it because in a way

we won it, but Courts of Appeals have taken it the wrong way. I think that is

the fairest way to put it. But, it’s M&G Polymers v. Tackett. There was a

split in the circuits for about 25 years on the legal standard that would apply

in determining whether a collective bargaining agreement was intended to

create vested health benefit rights for retirees. So, there’s a theme. This is

the theme for both of my Fourth Circuit trials had been that very question.

Did these collective bargaining agreements create vested health benefits for

retirees? The Sixth Circuit, for years and years and years, had essentially said

if it’s a collective bargaining agreement and it creates retiree health benefits

we’re going to kind of presume that they’re vested. It was always a

questionable proposition, but they stuck to it for a very long time. The other

Courts of Appeals varied from the opposite extreme, which is we’re going to

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presume that they’re not vested, to what always seemed to me to be the right

approach which is it’s a contract. You’re going to interpret it like you would

interpret any other contract. What are the words the parties have used? If

that’s ambiguous, what other evidence do you have of what they intended?

So, after all of those years, cert denied, cert denied, cert denied. One petition

after another went to the court with there’s a conflict in the Circuits. It is

creating all of this forum shopping which was the reason why we had to fight

about the forum in the Navistar case way back when. Suddenly to

everybody’s surprise, in 2014 the arguments that had been made in the op

certs for all of those years weren’t good enough. The Supreme Court granted

cert. So, a case which we didn’t try or argue on appeal was the Steelworkers’

case, and they asked us to handle it in the Supreme Court. So, the employer

was arguing, of course, go with those courts that say we presume no vesting.

Then they kind of secondarily argued, but if you don’t do that, at least say that

it’s ordinary principles of contract interpretation – no presumptions in favor

of vesting. We were convinced that there was no way we were going to get

the Supreme Court to adopt the Sixth Circuit’s point of view and so we

argued very strenuously normal principles of contract interpretation, and

here’s what those are. You look at the words of the contract and if the words

of the contract are ambiguous, then you look at your extrinsic evidence –

pretty straight forward. The argument seemed to go extremely well. I had

Justice Kagan and Justice Ginsburg and Justice Breyer all asking questions

very favorable to my side. Even Justice Sotomayor had questions that were

favorable. On the other side, I had Justice Scalia saying I could care less.

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These people wrote this contract. If it’s unclear, well it’s their fault – sort of a

pox on both their houses approach and I’m going hmmm, maybe that’s okay.

Justice Roberts wanting to go off in a direction of saying these are really

expensive benefits. Surely, we have to have clearer contract language than

this and we had anticipated that and said there are many more contracts with

far more money at stake than these and the courts have never adopted a rule

that says okay, if it’s a really, really big deal, we’re going to try to figure out

which of the two parties has the bigger incentive to make it clear and punish

them if it’s not. The basic standard rules of contract interpretation apply.

That’s what they are, and we ended up with a very odd ruling, which for the

first 12 pages says, use the normal principles of contract interpretation. That

phrase shows up, I counted them, 16 times in a 13 page opinion. Then, and

this is an opinion by Justice Thomas, and then, it says a few things which are

just kind of from left field, like to create a lifetime benefit you need clear

language. Well, there’s no such principle; in fact, the only thing that

anybody’s ever cited for that is a Corbin treatise, which says on the very next

page, okay, we’re talking about perpetual benefits, not lifetime benefits.

Lifetime benefits aren’t perpetual. People die. So, we end up with these kind

of weird things pulled in that have been interpreted by several courts of

appeals, including sadly, the Sixth Circuit, to effectively say, you’ve got to

have something clear in your contract for these retiree health benefits to be

vested. So the aftermath of that opinion has not been especially happy for my

clients. I’ve argued since then two cases in the Sixth Circuit for retiree

classes under the new regime and one of them, it was just the Supreme Court

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case on remand and the Sixth Circuit kicked it back down to the District

Court for the District Court to look at it in the first instance. Then the

employer went bankrupt, so that one kind of fizzled out. The other one, I

argued in August and the parties have reached a settlement, which will be

presented to the District Court for approval on behalf of the class, so the

likelihood is we’ll never get a Sixth Circuit ruling on that one.

Ms. Upadhyava: But if language has been clear, to be vested, I mean the question of whether

the language is clear is a question of law.

Ms. Clark: So you still have to have the Court delve into whether something is clear or—–

Ms. Upadhyava: Is, are the two opposites clear and unclear or is it unclear and ambiguous

because those are not ——

Ms. Clark: No, that’s exactly one of the key issues, because the Sixth Circuit,with Jeffrey

Sutton taking the lead, has effectively said it’s not ambiguous if you have

language like, these benefits are for life. One of the absolute killers has been,

and he says, and this has been repeated in almost every one of the Sixth

Circuit’s post-Tackett opinions, because the collective bargaining agreement

says that pensions are vested, that means the parties knew how to use the

language of vesting and if they didn’t use that language for the health

benefits, then that’s clear evidence that they didn’t intend the health benefits

to be vested. The problem is the Internal Revenue Code says “thou must put”

in your pension benefit agreement that the benefits are vested. You have to

say it and so, when the parties merely complied with the Internal Revenue

Code’s requirement for pensions, you wouldn’t normally then think that

carries over to give you any information about their use of different language

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in other parts of the agreement that aren’t covered by that very specific

requirement. Unfortunately, we seem to have lost that battle in the Sixth

Circuit, and every collective bargaining agreement will have vesting language

for pensions because it must. I’m sure Judge Sutton knew that when he

adopted that way of looking at things, so we’ve battled and we’ve battled and

we’ve battled and I’m afraid that the employers are carrying the day on that

now. For our retirees that we had previously won cases for and gotten

affirmed, then there’s no reopening. We don’t have to worry about that, at

least so far, knock on wood. Nobody has come back and said, Rule 60(b),

there’s been a change of law; you should revisit this. I haven’t heard of any

such things at all. That’s the stuff of which nightmares are made.

Ms. Upadhyava: Right. Things that keep you up at night.

Ms. Clark: But the Fourth Circuit in the two cases I won at trial and got affirmed in the

Court of Appeals, were based on normal principles of contract interpretation.

The Fourth Circuit understood. That’s what we argued to them. We said,

here’s your normal principles of contract interpretation. Look at this

language. If it’s clear, enforce it as written. If it’s ambiguous, they need

extrinsic evidence. So, I think those are stable. I don’t think we have to

worry about those going away.

Ms. Upadhyava: Well, this new standard seems to be just a different way of saying applying,

you know, principles of contract interpretation except it’s made more

difficult.

Ms. Clark: Right. It’s principles of contract interpretation, but then we pretend that

these kinds of special rules are normal principles of contract interpretation.

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I guess now that the Supreme Court has declared them so, they are.

Ms. Upadhyava: Right.

Ms. Clark: So, that was a challenging argument, but it seemed a lot better at the time.

Maybe because I was assuming too much from Justice Scalia’s remark about if

the contract is not clear, I don’t care.

Ms. Upadhyava: Do you go back and listen to your oral argument.

Ms. Clark: No. I cannot. I absolutely cannot listen to my oral argument tapes. I

sometimes have to read a transcript for some reason, but no.

Ms. Upadhyava: Too painful. Well, I guess we could conclude for tonight unless there’s

something you—

Ms. Clark: Yeah, no. Let’s conclude for tonight.

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ORAL HISTORY OF JULIA PENNY CLARK

Fifth Session

December 27, 2018

Ms. Upadhyava: It’s December 27, 2018 this is the fifth session of the oral history of Julia

Penny Clark and the time is 5:23. So last time we met, Penny, we were talking

about some of the cases that you argued and some of the cases that you tried—

there is a 32 day bench trial I think you were telling me about as well as two of

your arguments before the Supreme Court, one that you argued and one that

you were at counsel table supporting an attorney who was arguing. I think you

wanted to talk about some additional cases you worked on and describe for me

your experiences on some other matters.

Ms. Clark: Sure. So the—I guess not necessarily in any particular order but fun stories

really is what this amounts to. In the early 1980s the law firm was defending

the Steelworkers Union in a lawsuit that was brought by a group of widows and

orphans in Northern Idaho right up in the narrow panhandle section. There had

been a fire in a silver mine up there and the Steelworkers represented the

miners. A fire in a hard rock mine was absolutely unheard of and it never

occurred before. Unlike coal, the walls of a metal mine like silver aren’t

flammable. There is no coal dust, there is nothing to explode. And

approximately 90 miners were killed in that underground fire. The widows and

orphans collected their pathetic small amounts of workers compensation and

then proceeded to sue every institution in sight, all the way to the United States

Government, saying that somebody should have perceived the hazards and

protected the miners from it. The Union was in that line because it had a right

in its collective bargaining agreement to form a safety committee and to walk

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through the mine periodically and point out hazards to the management. They

had been no better than anybody else at anticipating this unprecedented fire.

It’s easy to find records about this. It was called the “Sunshine Mine Fire” it

was, the mine was named the Sunshine Mine. There is an interstate highway

near Kellogg, Idaho where this happened and there’s a very very tall statue in

memory to the miners. It’s about I’d say 50-60 feet tall and it’s a miner with a

helmet that has a perpetual light in the helmet so it’s really quite touching. But

we had been litigating that case for a long time and I was brought into the trial

team as we were anticipating the possibility of having to go to trial. There

were multiple things that were quite amazing about it. It actually ended up

finally going to the Supreme Court of the United States and we won there. But

the, at first, let’s see when exactly did this happen…so the biggest issue in the

case from our perspective was a federal preemption question, because the

Union’s function in representing its members in the safety area, like everything

else, is heavily covered by federal law. We had made a motion to dismiss that

had been—I think it had gone up to the Idaho Supreme Court once before and

now—

Ms. Upadhyava: So you were in state court?

Ms. Clark: We were in state court.

Ms. Upadhyava: Okay. Okay.

Ms. Clark: Idaho state court! And so we were busy trying to get ready for a trial and

making a motion for summary judgment and so it was early 80s. ‘83 I think it

was. We were scheduled for trial to begin right after Thanksgiving. And you

imagine defending a claim made by widows and orphans in the Thanksgiving

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through Christmas holiday. And as it turned out—we couldn’t know it at the

time—it was the snowiest winter they had in Northern Idaho in many years and

the mountain pass that we would’ve been using to get our witnesses over from

Spokane was snowed in for days. So it was a good thing that the state court

granted our motion for summary judgment just a few weeks before trial was

supposed to start. And then the plaintiffs appealed that to the Idaho Supreme

Court. I don’t think there is an intermediate appellate court in Idaho so it went

straight to the Idaho Supreme Court. My colleague George Cohen argued the

appeal and the big issue was preemption, “Is this cause of action preempted by

federal law?” and if so, what does federal law say would have to be proven to

make out any kind of claim? And so we’re in the Idaho Supreme Court

hearing room which was very unpretentious. It was a ground floor hearing

room with windows all around and the judges, as I recall, were sitting almost

down on the same level as us. It’s not like they were on an elevated bench. If it

was elevated it was only barely elevated. And there was an U.S. flag at one

end and an Idaho flag at the other end. And just as George said “In this area,

federal law sweeps away all state law,” the Idaho flag fell over. It just

spontaneously fell down and everybody in the courtroom laughed, of course. It

was absolute perfect timing! You could not have made it happen any better

and nobody ever could figure out why the flag fell over but it did.

Ms. Upadhyava: That’s funny.

Ms. Clark: We still didn’t win in Idaho. That’s why it went to the Supreme Court of the

United States and the Supreme Court of the United States did rule that federal

law preempted. And that merely proving negligence would not be a cause of

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action and as a result the Steelworkers’ long, long case was finally over.

Ms. Upadhyava: And so it would have had to have been an intentional tort or extreme

negligence.

Ms. Clark: Pretty nearly yes. Deliberate disregard for some danger as opposed to

merely not noticing that there was some hazard there that nobody had

ever perceived before in such a mine. But that was totally one of my

favorite moments ever. It couldn’t be topped.

Ms. Upadhyava: How did the court react to that?

Ms. Clark: They laughed.

Ms. Upadhyava: Okay. Okay. That’s good!

Ms. Clark: And then the courtroom bailiff went and set it back up on its stand. And the

argument proceeded. But what a moment of great levity.

Ms. Upadhyava: And what was the name of the case?

Ms. Clark: In the U.S. Supreme Court it was United Steelworkers against Rawson. It

must have been in the Idaho Supreme Court Rawson v. Steelworkers. I don’t

have the Idaho case on my list here but Steelworkers v. Rawson is on here. It’s

a great moment. It was a great moment.

Ms. Upadhyava: Can’t plan that.

Ms. Clark: No. And one of my others was my first jury trial which was a retiree health

care case like my other jury trial was. This one was in the mountains of North

Carolina in federal court in Asheville in 2004 I believe.

Ms. Upadhyava: Would this have been the same courthouse that you—

Ms. Clark: The same courthouse I clerked in.

Ms. Upadhyava: Right okay.

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Ms. Clark: Absolutely. And in fact the district court judge had my judge’s

chambers.

Ms. Upadhyava: Oh wow.

Ms. Clark: So when we had chambers conferences I was up in the same offices where I

had worked as a law clerk. And this was very similar to the other case I

described where it was a collective bargaining agreement that called for the

company to provide healthcare to retirees. The people involved were rubber

workers who worked in a Dayco facility. But the—Trull vs. Dayco Products

is the name of the case. And it was a, ended up maybe being a seven day trial.

It was a little more than a week. But the thing that really stuck in my mind,

other than my first time before a jury, was that at the end of the trial after the

jury came back with a favorable verdict, one of the courtroom security officers

came over to me and said, “If we ever have a problem with our retiree

healthcare, I want you and your whole team to represent us.”

Ms. Upadhyava: Wow what a compliment!

Ms. Clark: And I thought what a great compliment.

Ms. Upadhyava: That’s a great compliment.

Ms. Clark: We had been there working really, really hard and we—I thought we did a

really good job for our clients and it was nice to have that kind of informal

recognition. So that was a fun moment.

Ms. Upadhyava: Did you like being before a jury?

Ms. Clark: Oh I loved it. Yes. And it’s hard to say why but it’s more of a connection. I

think when you’re trying a case to a judge, you’re thinking the judge has all of

his or her experience as a judge and is listening to the evidence in a different

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way and I think with a jury it’s just a sense that you can make a much more

direct connection with them and anticipate what members of this community

would be thinking about this case.

Ms. Upadhyava: Right.

Ms. Clark: It’s hard to really put a finger on it but I did very much enjoy the two jury trials

that I did.

Ms. Upadhyava: And what was the question for the jury? The interpretation of the collective

bargaining agreement? Or—

Ms. Clark: Yes it was. So the court decides that this agreement is reasonably susceptible

to the reading that we were putting forward which was that the employer’s

obligation to pay for these benefits would continue even after they, as they did,

closed the facility and there was no longer an active collective bargaining

agreement there. So that was the question. Does this obligation end when

there is no longer a collective bargaining agreement in force? Or does it carry

on for the lifetimes of the people who worked in the plant and who were

promised these benefits while they were working. You know they were told if

you work here so many years, 20 years, 25 years whatever the criteria were in

that particular collective bargaining agreement, when you retire the employer

will pay for your retiree healthcare. And it had always been administered that

way even to the point that the employer was maintaining about five different

health plans so that each group of retirees were frozen to the benefits that they

had when they retired. Even though the collective bargaining agreement that

had been in effect when they retired had long expired. So the employer was

acting as if these benefits were really guaranteed to those people based on the

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agreement in effect when they retired. Not subject to any later changes as the

employer had in fact on some occasions made benefits better and on other

occasions had started taking benefits away. And so the question for the jury

was, do you find that this collective bargaining agreement was intended to

provide benefits for the lifetime of the retirees rather than expiring when the

collective bargaining agreement ended? And so we had an awful lot of

evidence about what the bargaining had been between Union and the company

over the years. We put in a lot of evidence about what I call the stair step

arrangement of benefits so that it changes not at all when the collective

bargaining agreement expires but stays in effect for that cohort of retirees. We

had management witnesses who came in and said we always understood that

these were for lifetime and that the people who were working in the bargaining

unit had better benefits than we as management employees had; we always

knew that. I think there was even evidence of somebody who had been in the

bargaining unit, had moved into management, and when he retired, he had

chosen to retire with the bargaining unit benefit. Because he knew that they

were lifetime. So it was a very engaging trial and a lot of interesting evidence

from the people from the mountains. We had some people who were driving a

couple of hours each way to come in as jurors because the district extends so

far out into the farthest reaches of western North Carolina.

Ms. Upadhyava: And in those cases, you know the cases in North Carolina or in Idaho I

mean are these cases in which you engaged local counsel or did you feel

sufficiently comfortable?

Ms. Clark: I did. I had local counsel in North Carolina who came with me for jury

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selection and I asked him to do that because I number one had never tried a

jury case before and number two I thought if there are any special practices

here that they do locally, I don’t want to do something wrong and get the judge

impatient with me. So I had him there to advise me on that first day but then

he said, “You don’t need me anymore.” And off he went and the judge was

fine with that.

Ms. Upadhyava: Wow.

Ms. Clark: In Idaho we did have local counsel and I think, I just really don’t

remember If local counsel was going to play a meaningful role in the

trial itself.

Ms. Upadhyava: In the trial case Trull v.. Dayco Products case were you lead counsel?

Ms. Clark: Yes, I was.

Ms. Upadhyava: And what sort of teams did you have at the time or I guess this was your first

trial, jury trial. What sort of team did you have with you?

Ms. Clark: I had two associates. One was a young woman who had been a district court

clerk so she knew a lot about presenting cases to juries which was extremely

valuable for me. And the other was a young man from the office who…I

can’t remember. I mean he had more experience than she had as a lawyer but

I can’t remember exactly I don’t think he was a member of the firm yet. I

think he was still an associate. And we had one paralegal who was there

with us throughout the trial. And I gave my two colleagues witnesses to

examine and cross examine because there was just way more than I could do

on my own. And they did a very fine job. I was very pleased.

Ms. Upadhyava: Did you have more jury trials after this particular case?

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Ms. Clark: The other one that I had was the one in the Western District of Virginia which I

described to you before, the Volvo truck assembly plant in Dublin, Virginia.

Which had very similar issues.

Ms. Upadhyava: So in the Trull case your client is the Union?

Ms. Clark: Yes. The Union paid our legal fees and expenses, but the actual client

relationship was with several of the retirees.

Ms. Upadhyava: And how do you…I guess we can talk a little—I still want you to address

which matters—additional matters—you wanted to talk about but how did

you…I wanted to talk a little about client development. Who’s your client

representative and how do you engage with this person that’s representing

thousands of people?

Ms. Clark: Oh sure yeah.

Ms. Upadhyava: Tens of thousands of people?

Ms. Clark: Well the law firm has a very long relationship with Steelworkers Union. In

fact it’s probably—it was the firm’s first client because Arthur Goldberg, who

was then General Counsel to the Steelworkers Union, founded this firm in the

50s. And we deal with the Union through its General Counsel’s office. It has

a very good quality General Counsel in house and probably five or six lawyers

in the General Counsel’s office at all times. So this case, the one in North

Carolina had come to me in about 1999 when the company first started

charging the retirees for their medical insurance. And there was a succession

of lawyers in the General Counsel’s Office over the five-year history of the

case that I coordinated with. Two or three different people. But essentially they

would give me the contacts at the local Union and say “these are the people

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that you need to work with.” There, since the plant had long been closed, there

was no longer an active local Union but the people who had been officers of

the local union when the plant was open were still sort of like shepherding their

flock. And they coordinated with us.

Ms. Upadhyava: That’s impressive.

Ms. Clark: It was very impressive. Really good people. I mean these were elderly people

who gave up lots of their time to call their neighbors and to say, “Do you have

any testimony you might give?” and then they brought people into the

courthouse during the trial. They had about an hour-long drive over the

mountains. This was in summer so we didn’t have to worry about snow ever.

But they were bringing carloads of people and coordinating car and van pools

to bring people into the courtroom. And they did that throughout the trial. They

did it before as we were meeting with witnesses and they would just organize

everything. They’d find a place and bring people in to sit there and talk to us

and answer our questions and it was really an incredibly valuable service that

they provided. But coordination through the Union really had more to do with

the cost. You know they obviously wanted to know that we were litigating this

case at efficient cost because they were fronting the costs. They ended up with

a fee award that reimbursed them for I think everything they had laid out. But

at the time, of course, we didn’t know that and they were advancing the fees

and all the expenses so the litigation on behalf of this class of retirees…there is

simply no way that retired blue collar workers, even if they pooled all their

resources, could have paid for the costs of the transcripts, the depositions, the

lawyers’ travel costs. And there was nobody locally who knew these issues

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who would have been able to take the case and do a proper job of it. So it

really—the Union made it possible for these people to keep their benefits

that—it was a service the Union provided. It was a service that these former

local Union officers provided and we developed some wonderful relationships

with the local people and I just came to be very fond of them and still exchange

Christmas cards with some of them. They’re really good people.

Ms. Upadhyava: And were they mostly based out of North Carolina? Were there any members

or officers that you were dealing with outside of that District?

Ms. Clark: No. The people —other I mean Steelworkers are headquartered in Pittsburgh

but the people we were working with were all in the western part of North

Carolina. There was one former management person who was a very valuable

witness for us who had moved to Spartanburg South Carolina which is an hour

and a half drive away. And he was the only one outside of western North

Carolina that we were dealing with. So to give you a sense of the community

here…so the morning we were choosing the jury, and the lawyers on the other

side, they came from Michigan. The whole team on the other side were based

in must have been Grand Rapids. They’re anxious of course to find out if

anybody in the jury knows the witnesses or particularly key witnesses. So with

the entire jury pool sitting there the lawyer who’s representing the Company

says so “Do any of you know AJ Plemmons or Sam Wiggins?” But AJ

Plemmons is the former President of the Union and he was one of my chief

coordinators. And Sam Wiggins had been the plant manager and was

testifying on our behalf. He was one of the ones who said, “I understood those

were lifetime benefits.” And he bargained the contracts on behalf of the

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company so if we’re talking about testimony of how the parties dealt with each

other you know it was very valuable testimony. So the company’s lawyer

asked, “Does anybody here know either of these men?” And one woman

raised her hand, and he said, “So how is it that you know these two men?” She

says, “Oh I know them from church.” And the lawyer from the other side said

“Well…if they were to testify in this case and you heard their testimony, could

you possibly believe that they are not telling the truth?” And she paused for a

while and then she said “No.” In front of the entire jury pool! And I’m sitting

there going “Yes! Yes! Yes! Yes! Yes!” But of course suppressing it

completely because you have to keep the poker face.

Ms. Upadhyava: Why would you do that in front of the entire courtroom?

Ms. Clark: Before the entire jury pool! He’s asking “Is there any way…”

Ms. Upadhyava: Careful what you wish for…

Ms. Clark: “You know these two men from church. Is there any way at all that you could

believe they’re not telling the truth?” And she says “No.” Well he excused

her but I don’t think that it undid the harm that was done. So that was one of

the—

Ms. Upadhyava: I wonder if he realized that he had stepped in that.

Ms. Clark: I think he did. I think he did. So it goes he was also—the judgment that he

exercised in such things as pretrial I was trying to get some stipulations about

something. How much money these people had been required to pay out of

pocket so far to keep their insurance because the company had insisted on

charging them. And this was something that was based on the company’s

records. They could have very easily stipulated this is how much they

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received and he just refused. Because he was convinced that we weren’t

going to be able to prove it. And so he just wanted to put us at the

disadvantage of having to prove how much people had paid. And I said to

him on the phone in one conversation I said, “You’re making a big mistake

here. I’m going to call witnesses and they’re going to come onto the witness

stand and they’re going to give testimony about how much they’re paying for

their insurance.” And he says, “Be my guest.” So we proceeded to put a

parade of witnesses on the witness stand. People that we had to help up into

the jury box. I mean witness box. People who were on walkers. People who

were just you know absolutely the salt of the earth. Who were just like the

jurors and the jurors’ fathers and mothers. And you know one after another

we’d ask, “So how much are you being required to pay for your health

insurance?” And they’d give us a figure and we’d say, “So how much is your

monthly pension check?” And they’d give us a figure which was usually just

a little above what they were paying for their health insurance. And then,

because we had to call these people, we also had been asking them about,

“And what did they tell you when you retired about your health insurance?”

And one after another after another after another they told us that the

company’s chief negotiator, who was also head of the HR department, he had

negotiated—he been at the table negotiating all these contracts. One after

another they told us, “He said to me ‘You have your health insurance for life.

Enjoy.’” And he was dead so he couldn’t come testify. And witness after

witness after witness, very sympathetic people who have been very careful to

tell the truth—you know I would say, “So how many years did you work for

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Dayco?” And they’d say, “32…no 33 years.” So they were being careful.

Very very careful. And they would tell us about Arnold Robinson’s meeting

with them when they retired and how he told them, “congratulations. You’re

going to have your health insurance until you retire. And after you die, if your

spouse is still alive, he or she will still have your insurance.” We reached a

point with those witnesses that the judge said to me, “I think you have enough

evidence on that point. I believe you’re at the point of being cumulative.”

And it was really all because my opponent would not stipulate to the simple

fact of how much money people had been required to pay for their insurance.

So we had some fun moments. And I think maybe you recognize that he made

a few errors. Maybe.

Ms. Upadhyava: So that’s an instance in which a union’s officers and members, have been—

you know were very helpful I assume in helping you develop your record

and develop the facts.

Ms. Clark: Oh absolutely. We couldn’t have done it without them.

Ms. Upadhyava: Have you ever had the inverse issue where you had a more difficult time and

not say one specific or any specific case but how do you deal with a situation

where you don’t have as cooperative of a client or have you ever had any

problems in that regard?

Ms. Clark: I did have one and this is in the…it was a long time ago. It was probably still in

the 1970s. At the time, the federal law laid down by multiple Courts of

Appeals, was that under Title 7, a seniority system could be held to be unlawful

if it had the effect of locking people into their initial job assignments. Where

the initial job assignments were done in discrimination by the company. So if

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you think of a steel mill, which is where these cases were, there are a wide

variety of departments in a steel mill. There’s the blast furnace which was the

hottest and the loudest and the most unpleasant place to work according to

everybody. There was the open hearth where basically the only jobs were the

people running the cranes that lift those huge ladles full of molten steel and

carry them down the long platform and pour them out at the other end. There

were other rolling mills where people are operating machines that are rolling

bars or plates of steel. Those were less hot because the control rooms where

they operated the machinery were enclosed so it was better than being in the

open hearth or blast furnace. Traditionally, and this sort of went back to —there

was a period in the 1960s when a great many African American people migrated

north for jobs in the steel industry. And the employers had overwhelmingly

assigned them to the blast furnaces. And then seniority, the way the seniority

systems worked, your seniority was good in your department so you could

promote up within your department. But if you transferred over to another

department you started over at the bottom. And there was a series of these

Court of Appeals decisions that said because the seniority system, which is not

itself meant to discriminate, is having the effect of locking people into these

discriminatory job assignments, the seniority system violates Title 7. And they

were issuing injunctions that said you can’t enforce your seniority system. The

Supreme Court changed that in I think it was 1977. It was right in the middle of

one of my trials. But that was a bench trial. But until then, what the

Steelworkers had been trying to do was to go into the steel mills and negotiate

changes in the seniority system that would allow people to take their seniority

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with them when they transferred from one job to another. You use it both to bid

on jobs in other departments so that the people who were stuck in the blast

furnace could bid on a job in the rolling mill based on their seniority for the

company and then could promote from within the rolling mill. Well, as you

might expect, that was not very popular with the workers in the rolling mill

because suddenly they’ve got all of these very senior people who were moving

in and taking what they perceived to be their jobs. They’re in line for that

promotion and now somebody comes over from another department. While that

was still going on, that is while the law was still this seniority system itself can

be unlawful because of the company’s discrimination, I was given the

assignment to go in a small steel company —it was called Lukens Steel in

Pennsylvania. At the time it seemed a long way out of Philadelphia but now it’s

just in the Philadelphia suburbs. The plant has long since closed but I was to go

in there and try to negotiate this kind of company seniority system that would

allow people to take their seniority with them and use it in other departments.

And the person—there was a lawsuit pending which is why I was tapped to do

this and not somebody with a lot of collective bargaining experience, but I knew

the law. And so I was sent in along with a, I guess his title was an International

Staff Representative, so he was an employee of the International Union but his

roots were in that local. His name was Earl Zittarelli and his nickname was

“Horsey” because he like to bet on the horses when he wasn’t working. And he

ostensibly was on board with what the International wanted to do. Would never

say a word about not wanting to negotiate this company-wide seniority system.

But he was undermining the effort in any way that he could think of to do it,

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you know. He would raise all kinds of objections that were sort of off point and

he’d drag his feet and we couldn’t schedule meetings and most memorably I’m

sitting with him next to me and I was very young and I mean I wasn’t even 30

I‘m sure. And across the table are a couple of lawyers from the company and

probably somebody from the company’s labor relations department and I’m

making the case for why this absolutely has to be done and here is how we

believe you could do it. Do it the same way as it’s been done at bigger steel

mills by the Steelworkers and so forth. And “Horsey” turned to me and said

something to the effect of “You’re really cute when you get mad.” And so it

was one of those, “Horsey, we need to have a word outside in the hall.”

Ms. Upadhyava: Oh my gosh.

Ms. Clark: As it happened, because the Supreme Court changed the law, we never had to

go forward with that but we did have to defend the lawsuit and so that was the

32 day bench trial that I told you about which came later. And that was the one

that ultimately was argued in the Supreme Court right after my first child was

born, same case. But Horsey Zitterelli was quite a case. And you know I

could complain about him and his superiors could tell him you know you’ve

really got to get with the program here but at the same time he was the one

who knew the local plant. He was the one who had the means of making some

progress possible, and it didn’t happen. I didn’t have many of those problems.

By and large the people in the unions I think lived what they spoke and they

talked about equality. We never—I mean the place where women had the

hardest trouble breaking in has been the construction unions and we’ve never

done a lot of construction industry work. Most of ours were industrial plants

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and that’s been I think a big difference. But I didn’t have very much difficulty

with lack of cooperation from people who were my clients in name or in

reality.

Ms. Upadhyava: One thing that you mentioned that’s. . . I, I think is interesting, uh, it occurred

to me as you were telling the last story that a lot of your cases must have

tracked the sweep of civil rights cases or at least had to have. . .there was some

part of that movement that you must have seen in some sort of way through the

matters, right?

Ms. Clark: Oh you’re right, yeah.

Ms. Upadhyava: Who, who were. . . who were the lawyers bringing these discrimination cases

that. . .um. .

Ms. Clark: A number of the steel industry seniority system cases were brought by the

NAACP legal defense fund. . . very good lawyers. They really knew what

they were doing and, um, the cases that I did in Philadelphia, two long bench

trials, the first one was 85 days and the second one was 32 days, um, and the

first one was the one that the Supreme Court changed the law in the middle

of the case, and said,”You can set aside the seniority system only if you

prove that the seniority system itself was discriminatory, was intended to

discriminate.” Which meant that the second trial then, um, the one involving

Lukens Steel, required witnesses who had been around when the seniority

system had first been negotiated. Which was, at that time, uh, early forties,

so we were litigating in the 19-, early eighties, and the witnesses that the

plaintiffs were bringing in were people who had been part of the original

organization of the union at the plant, so they were bringing in folks that

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were in their eighties and older, and trying to remember what they could

about the conditions at the time that the seniority system was initially

negotiated. That issue we won in the trial court.

Ms. Upadhyava: You were actually able to prove that the seniority system…

Ms. Clark: We were on the other side.

Ms. Upadhyava: Oh you were on a different side.

Ms. Clark: So they had the burden of proof which was of course was very difficult.

Ms. Upadhyava: Okay, yeah.

Ms. Clark: That many years after the fact. There were some, um, some cases involving

sex discrimination that were also brought against, well certainly in some of the

steel mills, um, there were not very many women working in the steel mills in

those days. Trying to remember who counsel were. They were also really

good, coming out of women’s legal defense funds, or affiliated with them

somehow, I don’t know if women’s legal defense fund funded cases fully in

those days but they did have cooperating lawyers, there were some of those.

And, um, trying to remember, uh, those were the two, the sex discrimination

and race discrimination were the two major subject matters at that time. Um,

this was before anybody ever heard of sexual harassment. And the I, I came to

think, in fact when I made the decision to start focusing on employee benefits,

I just, had the illusion that I’d seen all the issues that involved Title 7, there

weren’t going to be any new Title 7 issues and I might as well move on and

learn something new. And different, but I was wrong. I had not seen all the

issues involving Title 7.

Ms. Upadhyava: Well, the law changed in the nineties, right? Or the early nineties, right?

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Ms. Clark: Yes, very much so. Even by the late eighties, it was changing.

Ms. Upadhyava: Were you, did you see a lot about. . .did you have occasion to work on a lot of

those issues, or see, kind of in dealing, negotiating, or counseling the unions,

um, dealing with a lot of the sexual harassment or gender discrimination

cases?

Ms. Clark: Not at the time. I know we did several gender discrimination cases and we had

some pregnancy cases, um, early on when the Supreme Court said no

pregnancy is not, you can discriminate based on pregnancy without

discriminating in violation of title 7. I’m trying to remember there was a, there

was one infamous Supreme Court case which was the reason the Supreme

Court adopted page limits on briefs, that was briefed by a woman lawyer. I

can’t remember her name now. It had something to do with sex

discrimination. But there were, like the Johnson Controls case, are you

familiar with that one? I think it was a case where a company said, “We’re not

gonna have any women who are capable of bearing children in our workplace

because we’re convinced that our, our products are hazardous to the fetus and

so, we’re going to protect all women by just, not allowing anybody who’s of

really an age and not otherwise disabled from having children,” I’m pretty

sure the Supreme Court said, “Can’t do that.” Maybe after the Pregnancy

Discrimination Act was passed, but, but that might be the case or it might be

an earlier one that had a similar kind of sex plus aspect to it, but I do remember

this one case where the woman who we were cooperating with her in some

fashion I guess we may have written an amicus brief for one of our union

clients in favor of getting rid of this sex discriminatory practice, and her brief

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was like a hundred and fifty pages. Huge! It went on and on and on, with the

legislative history or whatever, so, and it wasn’t long after that that the

Supreme Court adopted a page limit for briefs. I want say her name was Ruth.

Not Ruth Bader Ginsburg, but Ruth something-else. I can’t capture it,

accurately now.

Ms. Upadhyava: Uh-huh

Ms. Clark: But there were a lot of such issues, and one of the unions we had represented

for a very long time, the National Education Association. Which is of course,

very heavily female, and the leadership has long been heavily female and

they’re very much against sex discrimination in all of its forms, and so, we

were often prosecuting sex discrimination issues just as likely as we might be

defending them for our industrial unions. There was even one case where our

law firm filed amicus briefs on both sides of the case with the Supreme Court,

and I think the Bar Association later said, “Eh, we don’t think that’s a very

good idea.” You know, we built a, we built a wall, and one team was working

on one brief and another team was working on the other brief and we didn’t

talk to each other; we had absolutely no communication across the wall. But

some of us thought, at the time, “this is a little sketchy.”

Ms. Upadhyava: So, um, I guess I want to be able to, a, were there other matters you want to go

over?

Ms. Clark: Um, no, probably not, I think, uh, I’ve told you enough war stories.

Ms. Upadhyava: Oh no, I. . . they’re fun. I like the war stories, I’m happy to uh, I’m happy to

hear them. I’m curious now what you know, what sorts of matters you work on

now. What still are, what are areas that you still want to work on, that maybe

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you’re not, have gotten and what excites you, what seems to excite you right

now?

Ms. Clark: The thing that I just did a summary judgment motion on is a, is an employee

termination issue that’s in super-secret arbitration. It’s, it’s very frustrating

because it’s a very interesting case, but I can’t talk about it. But um, and we’ll

probably never be able to talk about it, because. . .

Ms. Upadhyava: I was going to suggest. . . a follow up

Ms. Clark: They just never release these things, the client is under a confidentiality

agreement that was part of her employment agreement and, she has to go to

arbitration over the termination issues and it’s super-secret, double-secret

arbitration you might say, yes, total bummer! Um, but, I have done, in the last

several years, so let’s see that would be the first one, the first one was decided

in 2015 so that’s when I argued it, um a series of highly technical ERISA, court

of appeals arguments. For a lawyer in Brooklyn who is a, I’ve read his

transcripts, is a brilliant trial lawyer. He doesn’t feel quite so confident about

appeal work, and he has brought a series of really big cases. The one I did in

2015 was against PricewaterhouseCoopers, a huge class-action and it’s coming,

it has been briefed and there will be an argument in the Second Circuit

someday if the government shutdown ends, which I’ll do again, then there was

one against Foot Locker, for a class that I argued in 2017 and won that one as

well. And. . .

Ms. Upadhyava: Was it in the Second Circuit?

Ms. Clark: Second Circuit, both of those Second Circuit, and a Fourth Circuit that I

argued earlier this year, in March that sadly we lost. There is a cert petition

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pending at this point. That was Pender v. Bank of America. But they’re really,

really technical ERISA issues but all of them with an aspect of the company

misled the employees about their retirement plan, they made a change in the

retirement plan and didn’t really tell the employees what they needed to know

about the new retirement plan. And, and those have been a lot of fun. They’re

very demanding because of the technical issues I’ve got to master like in the

PricewaterhouseCoopers case, I had to master a huge volume of IRS

regulations on the question of retirement age. And in that case,

PricewaterhouseCoopers had come up with this brilliant retirement system

design in which they defined normal retirement age as five years of service.

Ms. Upadhyava: Oh, really? Okay, I, I thought you were gonna say as 50 or 55. . .

Ms. Clark: No, five years of service!

Ms. Upadhyava: I understood the retirement age to be pretty low.

Ms. Clark: It was extremely low and the court of appeals saw through their little ruse, and

said, “whatever that is, it’s not a normal retirement age.”

Ms. Upadhyava: Haha.

Ms. Clark: And so that was a big win. Oddly enough, the two Second Circuit cases, the

PricewaterhouseCoopers case and the Foot Locker case I have had the same

two of the three judges on the panels were the same, Jose Cabranes and Gerald

Lynch, were on both panels, which is just almost unheard of. . .

Ms. Upadhyava: Right

Ms. Clark: . . . in such a short period of time. I’d love to have them again, they were

great. But those were fun.

Ms. Upadhyava: How does having such a short, I don’t know what to call it, a young

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retirement age help the company?

Ms. Clark: Let’s see if I can explain in brief and in non-technical terms. This is what the

company calls a “cash-balance retirement plan,” which is something that was

kind of invented for the first time in the nineties, and it, it kind of mimics a

401k plan, except the balance is only hypothetical, you don’t have any real

assets that belong to you, you have a cash balance which everybody

understands, they might call it nominal, or they might call it. . . there’s some

other word they use, sounds good, but it’s hypothetical, and the IRS

regulations, until 2006 said that when somebody in one of those plans retires

and elects to withdraw their account value in cash, if they’re younger than

normal retirement age, you have to increase their nominal balance by what you

expect that balance will earn all the way to their normal retirement age, and

then you discount it back at a particular rate, which is benchmarked to US

Treasuries. So, since the company was, one of their selling points to the

employees was, “we’re gonna let you earn hypothetical earnings on your

hypothetical balance based on stock market returns or a balance between stock

market and fixed income investment.” They wanted to credit people more than

the Treasury rate. So, if you credit it going forward at a higher rate and then

discount it at a lower rate, you end up paying more than that nominal balance to

the person that’s retiring. They call this the “whip-saw effect.” And

PricewaterhouseCoopers said, brilliantly, “Aha! We can escape having to pay

somebody more than the balance by just defining five years of service as

normal retirement age, and they don’t get vested until they have five years of

service. So, everybody who retires, and is owed anything at all, will have five

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years of service and we don’t have to project anything forward for normal

retirement age.” They say, “problem solved, our normal retirement age is five

years of service.” And the question in that case was whether that was

consistent with these IRS regulations and statute, and the statutory definition

and so forth. All before 2006 when congress amended the law.

Ms. Upadhyava: And did PWC seek cert on that case?

Ms. Clark: They did, and it was denied.

Ms. Upadhyava: Even though there was a. . .

Ms. Clark: There was a conflict in the circuits, because the Seventh Circuit had seen the

same kind of a five-year plot in a different case and they said, “eh, it’s. . .

perfectly fine. You call it normal, it’s normal.” But because, I mean,

obviously as you could expect our, our opposition to certiorari leaned heavily

on the fact that Congress had amended the law and this was no longer a live

issue. So, we’re saying, “yeah there’s conflict in the circuits, but who cares?”

Ms. Upadhyava: So, so the Pender v. Bank of America case, you have, it’s your cert

petition that’s pending?

Ms. Clark: Yes.

Ms. Upadhyava: And what arguments have you made to get the Supreme Court to consider the

case?

Ms. Clark: That’s a tougher one, because the issue there is, whether, let’s see how to put

this, the bank there persuaded employees with more than $3 billion assets in a

401k plan to move those assets into their regular defined benefit plan with the

promise that, “we will let you designate how you want to have it invested, the

same you could in your 401k plan. But we’ll guarantee you that you’ll never

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lose anything, your balance will never be lower than what you transferred in.”

And the reason they were willing to do that is because the bank thought, “okay

people will be conservative like most people are with their retirement money

and they’ll put most of it into fixed income. We, the bank, will go off and

invest the money in the stock market and we’ll pocket the difference.” What

the bank wasn’t counting on was the 2008 financial meltdown, and, um, the

IRS caught them at their little game and said, “You can’t, you can’t just do

that.” In 2009, they made them put the money back in the 401k plan, because

there are rules that say you can’t just take away 401k money and use it for the

benefit of the employer. Which is what they were doing, obviously. They

were gonna make money on the spread. So, the lawyer in Brooklyn sued them

on behalf of the class , in fact I think he had his class action pending when the

IRS told the bank they had to undo this. And, his theory of recovery was, um,

the old equitable rule that if a wrongdoer takes your money and makes a profit

off of it, the wrongdoer has to disgorge that profit to the victim. The IRS

settled with the bank for some specified return on the money, and I couldn’t

tell you what it was, but it wasn’t the full amount of profit that the bank made

on the pooled pension fund while the money was in the pension fund. That

was a net gain of about 37% over the period of time that it was in the pool

fund, it’s more than one year, so that is not an annual return, but it’s like three

years, four years return. So, the Brooklyn lawyer says, “this ancient rule of

equity applied here, because ERISA is equity,” and the Supreme Court in case

after case after case has said to the lower courts, “when the statute says that

the plaintiff can sue for equitable relief, we the Supreme Court are telling you,

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lower courts, that they mean,” and you may find this surprising, “they mean,

the rules of equity as they would have been applied by the federal courts in the

days of the divided bench, 1937, go back to the 1937 restatement of remedies

and those are the remedies that you may have in federal court under ERISA if

you’re suing under this one subsection that says equitable relief.” So the issue

in the Fourth Circuit this year was the following: when the Fourth Circuit had

seen this case once before, before I was brought into it, and the Fourth Circuit

had said, “go back and apply this ancient equitable remedy for disgorgement,

you’ve got to turn over the proportional share of the profits on the pooled

money, because you wrongfully commingled the money. And, the bank came

up with this brilliant accounting strategy in which they said, “Well, we don’t

really have to disgorge the money on what we earned on the whole pool,

because we were separately tracking the investments on the transferred money

and we can tell you to a high degree of certainty that we lost money on those,

and the profit was all made on the rest of the assets.” And the district court

bought that. And we took it to the Fourth Circuit, and we did get one

dissenting judge who said, “The old remedy says, very clearly, if a wrongdoer

commingles the money, they’ve got to pay their proportionate share of the

commingled profits. They don’t get to say, “We can tell you what we didn’t

make on your money.” But two members of the panel said otherwise. So in

this one, we don’t have a conflict in the circuits, and we admitted it, very

quickly. But we said, “Look, you the Supreme Court, have been telling these

courts of appeals, over and over and over and over again, that there is only one

source from which you are to find what is equitable relief under that

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subsection of ERISA, and that source tells you that you’ve got to look at the

commingled whole and you award a proportional share of the profits on the

commingled whole, not letting the defendant come back and say, “Oh but we

kept close track of what this money was doing.” The panel in the Fourth

Circuit said, effectively, “We think that the federal courts have broad

equitable discretion that overrules this old rule, and therefore, the district court

had the discretion to say this is a special case and we’ll let the bank keep the,

the profits on the whole pool.” So, the hope, obviously, is that the Supreme

Court will say, “Yeah, we’ve been telling them over and over and over and

over again that the congress meant go back to 1937 and apply those rules.

There is no broad equitable discretion that overrides those rules.” So that’s

the pending cert petition.

Ms. Upadhyava: And when do you expect to hear?

Ms. Clark: The opp. cert. hasn’t yet been filed. So it will probably be, yet, another

month or two. Depending on whether the Supreme Court is affected by the

shutdown. [The petition was denied.]

Ms. Upadhyava: Is there something about the financial crisis in 2008 that, is there a reason

you’re seeing these particular types of challenges under ERISA, or, or did you

see an uptick in challenges of kind of how companies handle employee

benefits plans or retirement or pension plans after the financial crisis? How did

your practice change if at all during that time?

Ms. Clark: Most of what I saw was the effect on multi-employer pension funds. Those

are collectively bargained, so unions bargain with a lot of different employers

and they all pool their contributions into a central fund and it saves

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administrative costs, and for individual employer’s financial risk is limited. In

a single employer plan, like Bank of America’s plan, the law says, “you the

employer, must make sure that this plan is funded to certain standards under

the statute.” In a multiemployer plan, number one the standards are different

for funding; but number two, the employer’s obligation is not to fund the

whole difference. The employer’s obligation, if it continues in the plan, it

doesn’t have an obligation to pay for any unfunded liability. If it leaves the

plan, after the employees have already gotten vested benefits, then it will have

to pay its proportional share of any underfunding in the plan, according to

some really, really technical rules. But even though the stock market came

back after the recession, the way actuaries calculate what you need to fund a

pension plan, assumes that you’re gonna have steady growth every year. So,

they take a rate and they say, you know, “Based on the last fifty years, 7%

annual compounded return is a reasonable assumption,” and we take that

experience and we just project it forward. So we’ll say, and 7% is kind of a

conservative number; most plans use 7 ¼, or 7 ½. And so, you start with what

the assets were at the beginning of 2008, and you assume those assets are

gonna earn 7% and then next year they’re gonna earn another 7% and this is

compounded on and on and on and on. In 2008, most diversified investment

assets that were diversified investments, lost about 25-30%. So, there, they’ve

just gone into this big hole, and not only are they supposed to be reaching

where they were at the beginning of the year plus 7%, but now even the 7%

that they earn on that money is smaller because it’s being earned on the

smaller pot. And, most multi-employer plans are still struggling from their

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losses from 2008. Because, even though the stock market has gone up. . .

they’re diversified, so they’ve also got fixed income investments, which have

been historically low during this period of time. But they’re also working

really, really hard to make up for those 7% that they didn’t earn and in that, so

in that ten-year period, you would say, now it’s almost eleven years, but, ten

years since the beginning of 2008 the actuaries’ projections would have had

the asset almost doubling, because 7% times 11 years, and it’s compounded, I

don’t know what the exact number is, but you can see that it would have been

something more that 77%, so it’s well up there. And, the stock market, or,

most diversified investment pools have not doubled since the beginning of

2008, so, they’re still struggling, there. And this year is not going to do

anybody any favors, judging from where the stock market is, for December.

Ms. Upadhyava: Do, did you see, that there were- there was a lot of malfeasance or

mishandling of funds, or was just really the victims of circumstance, yeah?

Ms. Clark: Yeah, no. The funds that I represent have top-notch investment consultants

that advise them about how to invest the money, they’re working with

investment managers that are totally on the up and up and completely honest

and capable and they just suffered from the fact that everybody’s assets went

down and then they’ve been struggling to get back. So, so most of them have

been having to take special measures to try to get more money from the

employers, and there’s certain ways that the law allows them to reduce

benefits to participants which is always a very painful thing to do and uh, and

so we’ve been doing a lot of that since 2008. One of the other cases that I

argued in the Fourth Circuit this year was the Bakery and Confectionery

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Pension Fund against Just Born, which is the maker of Peeps. It’s a great

name, because….

Ms. Upadhyava: That is a great…

Ms. Clark: because it’s a family that founded the company, who are the “Borns,” and

somebody came up with the great idea that we’d get these little, fluffy,

newborn chicks and call it “just born.” But they tried to kick back against

one of the rules that the Bakery and Confectionery Pension Fund had

adopted for recovering the funding going back, not only to the 2008

financial crisis, but also in 2012, their largest contributing employer,

Hostess Brands, went bankrupt and shut down basically everything. They

sold a few plants to buyers, but they had been contributing about 24% of the

annual contributions in the Bakery Pension Fund before they shut down.

And, so between those two things, this pension fund has been really

struggling and congress had enacted a new law at the very end of 2014, that

put a new obligation on employers for contributions to help boost the

funding of plans like this one. And, um, Just Born’s lawyers advised them,

“Eh, you don’t have to comply with that, we’re gonna say that the National

Labor Relations Act supersedes that. That congress couldn’t do that.” And

so, we won it in the district court, and the district court quite rightly said,

“Here’s the statute, it’s very clear: National Labor Relations Act was

enacted first,” you know, “and this was enacted second, and we don’t see

any way that you get out of it,” and that’s essentially where the Fourth

Circuit ended up after the argument. The one fun twist there is that the

company came up with this notion that our argument was, the “Hotel

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California” for employers and pension funds because you can check-in, but

you can never leave. And, but. . .

Ms. Upadhyava: Cute.

Ms. Clark: Yes, it was cute. It was cute. But they had the, um, the brilliant idea of

sending in a lawyer to argue the case who is a big name but doesn’t know

anything about pension law. And this was, of course, a very technical

question under one “sub sub sub sub sub sub sub sub” section of ERISA.

And, he had no, he also didn’t know labor law. So, so their argument was that

8(a)(5) of the National Labor Relations Act should override this new statute;

and, early in his argument, one of the judges on the bench said, “Mr. Rifkin,

tell us, what, what is the section of the Labor Relations Act that you’re relying

on?” And he had this, moment of complete panic. He turned around, like deer

in the headlights, to one of his colleagues, behind him at counsel table. Who,

maybe flashed fingers at him or something, but he turned back around and

said, “Section 8.” Well Section 8 is practically the entire National Labor

Relations Act. I mean it’s just full of rules, and this was one subsection,

8(a)(5) that he was relying on. He didn’t even know what, what he was

relying on and it was all over his brief. So, I was left to think he didn’t even

read his brief. Because anybody who had spent any time preparing for that

argument and wasn’t just up there with talking points, would have known that

8(a)(5) was the section that they were relying on. He had two, two arguments.

One was the statute shouldn’t have been interpreted the way the district court

did. The other was that he had defenses that the district court shouldn’t have

dismissed, and the brief was about evenly split between those two issues. I

187

don’t know whether the judge was perceiving that he might be able to make

his job easier, by taking advantage of this lawyer who didn’t know what he

was arguing. But he said, “So let’s understand here. So your only issue is the

interpretation of the statute, right?” And he says, “Yes.” Giving away the

other half of his case. So, it really was an object lesson to number one, do

your own preparation. You know, no matter how big a reputation you may

have in the field or any field. Don’t think you can go up there with somebody

else’s notes and argue a case. I would never have thought that there was any

need to tell an experienced lawyer that until I saw that performance. After the

argument, I was waiting for a train at the Richmond train station, and this man

in a suit came up to me and said, “Ms. Clark?” and I said, “Yes, yes?” I didn’t

recognize him, I thought maybe somebody who was in the courtroom. Well it

was. He was, he was a vice president for Just Born, and he had been in the

courtroom. And he said, he was traveling with a couple of his colleagues and

he introduced me to them. And he said, “You really know this pension stuff,

don’t you?” And I said, “Yes. Actually I do. This is, what you might say this

is my bread and butter. I do this all the time.” And, and I’m thinking, “unlike

the lawyer you paid $1,000 an hour, or whatever the going rate is, to come in

here without any clue what he was arguing about.” And obviously, I didn’t

say that, but that was the thought that I had. Well, it just goes to show you

need to know your stuff.

Ms. Upadhyava: No question. And how did the Fourth Circuit that was this year that you won. . .

Ms. Clark: That was this year, yup, we won it. We won it and, um, and after the decision

came down, Just Born threw in the towel and they paid us. So. It was a

188

little…they didn’t see any need to litigate further.

Ms. Upadhyava: So, any interesting cases coming down the pike other that the super-secret,

double super- secret case you can’t talk about? And you won’t be able to talk

about, even in a follow up session?

Ms. Clark: Well, there’s the, there’s a second round of the PricewaterhouseCoopers case

with the district court when the court of appeals sent it back down and said

“Five years is not a normal retirement age, district court come up with the

right remedy.” The district court granted a motion that the employer filed,

saying, “There’s no standing.” Which is a problem under the mandate rule,

among other things, because that issue could have been raised in the first

appeal in the Second Circuit. But it’s also just plain wrong under ERISA. So,

so, we’re going back to the Second Circuit with the standing argument, to try

to again, get some relief for the class of PricewaterhouseCoopers participants

who have been waiting a very long time. This, this all happened before 2006,

when the law first was enacted. So, it’s a long time.

Ms. Clark: That’s the one big thing that I have scheduled, other than the arbitration.

Ms. Upadhyava: So one of the issues we were talking about earlier, I had asked you about, you

know how, how work comes into the firm and, and how its allocated and I

wanted to ask you to describe that because I think it’s a really interesting firm

model that I have not seen before, but think that people should hear about.

Ms. Clark: Well, we’re a small firm, as Washington firms go, and we’re part of the labor

movement. So, seniority basically governs everything. It governs

compensation for our associates, it governs compensation for members of the

firm. Our formula for dividing up profits is based on seniority, and so, I as

189

the senior person here, have been taking home the largest share of the money

for the last several years until I’m due to retire at the end of 2019, so I’m on a

glide path and my share is now gradually diminishing and moving to the other

folks; which, I’m glad for. But in my mind, what that does is that it

completely eliminates any sense of competition within the firm; so that, for

members, my compensation is in no way dependent on how many clients I’m

credited with being the partner for. The only thing that my being the liaison

partner with a client means is that I have the burden of billing them, and so,

it’s more…I’m happy to pass that along to somebody else as soon as I can.

But there is no withholding client contact from fellow members because of the

fear that somebody will establish a relationship with the client and kind of

take them away. I’ve been very free over all these years to bring my partners

into relationships with clients and, and I encourage them because it- I mean,

well, and here’s an example: one of my colleagues, who also does benefits

work, but probably, I mean he’s certainly done more in representing single

employer benefit plans than I have, I do more multi-employer, um benefit

plans. The United Auto Workers started coming to me in the 19-, eh, that

may be the early 2000s, to mid-2000s with a number of cases that had some

relationship to retiree healthcare issues. And I argued several cases in the

Sixth Circuit for them, did some district court litigation, and then right after

the jury trial that I did in Western Virginia, they came in with a new matter

and I said, “I am just absolutely swamped, let me hand that over to one of my

colleagues.” And they said, “Fine.” So, he then established a relationship with

them and worked on that case until he retired last year. One of my other

190

colleagues has gradually, because I was sending them to him to answer kind

of discrete questions, has gradually become their go-to person for all of their

benefit plans for their staff, so they’re in the capacity of the employer of

people who work for the United Auto Workers; they now go to my colleague

with all of those questions. I never even know they’re going on, until, in fact

he’s now doing the billing, which is terrific. So, these are the, and I- it

doesn’t affect my compensation by a single penny, that he’s now the billing

partner, that he’s now the one who is, who is handing out the work to other,

younger lawyers when he needs some help. And, and I can just have a great

big smile on my face that somebody else is helping with that workload. It’s

not, it’s not something that takes away from me. Similarly, with the

associates, you know, they know that their colleagues aren’t going to

somehow get a jump on them by working harder or working longer or making

them look bad, in the converse of that. So I see associates volunteering to

help each other out when they hit crunch times in litigation, because nobody is

looking over their shoulder and thinking they can somehow get ahead by, um,

making somebody else look bad or leaving somebody else to, to struggle and

perhaps, drown in a, in an overwhelming workload.

Ms. Upadhyava: It allows you to put a premium on just focusing on the work.

Ms. Clark: Yes, absolutely. I mean, and that’s, and that’s the objective is, and we all

understand this, the objective is to do the highest quality work for the

client. And whatever that takes is what everybody is expected to help out

with. And, it’s not my client, it’s the firm’s client.

Ms. Upadhyava: That’s a great system.

191

Ms. Clark: Yeah. I think it has worked extremely well for us and, and I’m very pleased for

it.

Ms. Upadhyava: So, you mentioned, um, that you’re set on a glide path to retirement at the end

of 2019. Will you actually retire, or, what are your plans?

Ms. Clark: Well, I’ve begun to identify some organizations, non-profit organizations that

provide legal services to low-income people in the employment area that I

would hope I can, one or two days a week volunteer with and help them and

would probably not involve sort of, hands-on client intake or litigation, but

more being a resource for young volunteers who are there to do the clientfacing

work and the actual litigation. That’s my hope. I don’t want to work

five days a week, I would like to dial that back a bit.

Ms. Upadhyava: Are there plans beyond work that you are looking forward to?

Ms. Clark: Well that all depends on whether my husband can be persuaded to reduce his

schedule at all, which is unclear, he loves what he’s doing and he says, “I want

to do it as long as I can,” so, that’s, that’s a matter of some discussion and

negotiation as you might imagine.

Ms. Upadhyava: Ah, sure. Well, I mean, I guess you could travel through Europe by

yourself, but it wouldn’t be as much fun.

Ms. Clark: It wouldn’t nearly be as much fun, no, nope I would rather have a companion.

Ms. Upadhyava: Well, this has been fantastic, I don’t know if there was more that you

wanted to add.

Ms. Clark: No, I can’t think of anything else, it’s been, yeah it has been a lot of fun.

Ms. Upadhyava: It’s been a real pleasure for me and I’ve, I know that the Historical

Society really appreciates it, I’ve been keeping them apprised and it’s,

192

it’s really been a treat.

Ms. Clark: Good!

Ms. Upadhyava: So, thank you so much for your time.

Ms. Clark: Oh, well, thank you for your time and effort.

A-1

ORAL HISTORY OF JULIA PENNY CLARK

Index

AFL-CIO, 103, 112, 139

Agent Orange, 40-41, 45

Bakery and Confectionery Pension Fund v. Just Born (case), 184-85

Banks v. Burkett (case), 134

Beck v. Pace International Union (case), 146

Bituminous Coal Operators Association, 136

Blackmun, Harry, 96

Boies, Schiller, 101

Boswell, James, 113

Boswell’s dog, 113, 144

Boyd, David, 101

Breyer, Stephen, 148-50

Brown v. Board of Education, 13, 16, 18

Brown, Linda, 53

Bryson, William (husband), 75, 77, 79-81, 84, 87, 93, 95, 105, 108-10, 118

Solicitor General’s Office, 109-10, 113

United States Court of Appeals for the Federal Circuit, 110

Cabranes, Jose, 177

Cardozo, Benjamin, 141

Caro, Robert, 48

Carr, Ron, 101

Chevron deference, 147

Civil Rights Act, 54

Civil Rights Movement, 15

Clark, Anna Beth “Pepper” (sister), 2, 6-7, 14, 25-26, 33-34, 52

Clark, Elton Willis (father), 1-5, 13-14, 19-20, 24-29

Berlin Airlift, 6-8

death, 40, 42

Guam, 2-3, 6-7, 25

Korean War stationed in Tokyo, 7, 10

Vietnam War, 7-8, 10-11, 17, 33-35, 39-40, 43-44, 46, 52, 77

Tet Offensive, 40, 42, 44

Clark, Julia Penny (personal)

Baptist Student Union at the University of Texas, 66

Charleston, South Carolina, 10-13, 15, 18-19, 24, 30-31, 38, 49-50, 52

Horton, Kansas, 5, 8, 21, 23

Oak Grove, Louisana, 1, 6, 7, 8

Panama City, Florida, 9-10

University of Texas, 53, 58-61

A-2

University of Texas Law School, 23, 26, 29-30, 60, 69, 71-72, 75-76, 78, 84, 87-88, 92, 95, 101,

108, 116, 118

financial aid, 61, 73-74

Law Review, 79-82, 85

Valdosta, Georgia, 9

Clark, Julia Penny (professional)

Bredhoff & Kaiser, 1, 37, 68, 116, 119, 131

Bredhoff, Cushman, Gottesman & Cohen (now Bredhoff & Kaiser ), 107

CLEO (Council on Legal Education Opportunity), 87-88

Fourth Circuit clerkship, 135

lack of role models, 112

Legal Aid, 69, 71-73, 79

Library of Congress, 96

Supreme Court clerkship, 116, 119, 135

transition from law school to clerkship, 94

Vinson & Elkins, 79-81

Clark, Pauline Ruth Smith (mother), 1-4, 7, 11, 13-17, 20, 22, 24, 34-35, 41, 127

death, 27-28

Cohen, George, 38, 157

collective bargaining, 137, 140, 149, 152, 155, 159-60, 170, 182

Connell Construction Company v. NLRB (case), 102-03, 131

Cooley, Jim Dean, 84

Cooper v. Kingsville Independent School District (case), 132-33

Cooper, Janet, 132

Corbin, Arthur, 151

Craven, Braxton, 82-83, 90-91, 116, 119-20

Craven, Susan, 120

discrimination against women, 97-98

DuShane Fund, 132, 134, 139

Edwards, Harry T., 138

equal rights movement for women, 122

ERISA, 147, 176-77, 180-82, 186, 188

Evergreen (cases), See United Mine Workers of America 1950 Benefit Plan and Trust v.

Bituminous Coal Operators’ Association, Inc

First Amendment, 132

Foot Locker, See Osberg v. Foot Locker Inc. Retirement Plan

Friendly, Henry, 84, 85

gender classification, 126, 129

gender discrimination, 121, 124, 130, 174

gender equality and gender discrimination, 123

Ginsburg, Ruth Bader, 97-98, 100, 126, 150, 175

Goldberg, Arthur, 106, 163

Goodman v. Lukens Steel (case), 145, 170, 172

A-3

Gorelick, Jamie, 105

Gottesman, Michael, 38

Haynsworth, Clement, 84

Hogan, Thomas, 137

Hostess Brands, 185

Hubbell, Web, 110

Hunton & Williams, 91

Idaho Supreme Court, 156-158

integration, 12, 15-16, 18-19, 56

Johnson Controls (case), 174

Just Born, 185, 187

Kagan, Elena, 150

Kennedy, John F., 40, 46-50, 107

Kingsville v. Cooper (case), 135

Klein, Joel, 101, 104, 106, 110

Lewin, Nat, 108

Lukens Steel See Goodman v. Lukens Steel

Lynch, Gerald, 177

M&G Polymers v. Tackett (case), 149, 152

Madoff, Bernard (Bernie), 139-40

Marshall, Thurgood, 93, 130

Miller & Cassidy, 105, 108

Miller, Jack, 108

NAACP (National Association for the Advancement of Colored People), 172

NASCAR (National Association for Stock Car Auto Racing), 108

National Education Association (NEA), 132, 139, 175

National Labor Relations Act (NLRB), 182, 185-86

Navistar (case), 142, 150

Neal, Jim, 109

New York Transit Union, 141

Norris-La Guardia Act, 103

Osberg v. Foot Locker Inc. Retirement Plan (case), , 138 F. Supp. 3d 517 (S.D.N.Y. 2015), 176-77

Pender v. Bank of America (case), 177-79

Pension Benefit Guaranty Corporation, 147

Pittston Company, 137

Plemmons, AJ, 165

Powell, Josephine, 127-28

A-4

Powell, Lewis, 91-93, 95, 98, 101-02, 107, 116, 121, 123, 126, 131

women’s opportunities and special protections, 99

Pregnancy Discrimination Act, 174

PricewaterhouseCoopers, 176- 78, 188

Profiles in Courage (Kennedy), 49

PT109 (Kennedy), 49

Public Accommodations Act, 54

racial discrimination, 125, 130

Rawson v. Steelworkers (case), 158

Reasoner, Harry, 81

Reno, Janet, 110

Rice, Walter, 142

Roberts, John, 151

Robinson, Arnold, 168

San Antonio, 2-4, 22-23, 28-29, 46

San Antonio Light (newspaper), 22-23, 28

Scalia, Antonin, 147, 149-50, 154

Schlesinger v. Ballard (case), 98

segregation, 12-13, 15, 18-19, 54

sexual discrimination, 125, 173-75

sexual harassment, 17, 173-74

Sotomayor, Sonia, 150

special protection of sex based distinction, 125

Stanton v. Stanton (case), 129

Steelworkers Union, 107, 146, 150, 155, 163

Sunshine Mine Fire, 156

Sutton, Jeffrey, 152-53

The Years of Lyndon B. Johnson (Caro), 48

Thomas, Clarence, 151

Thurman, Strom, 20

Title 7, 97, 99, 112, 168-69, 173

Trull v. Dayco Products (case), 159, 162-63

United Auto Workers, 142, 189, 190

United Mine Workers of America 1950 Benefit Plan and Trust v. Bituminous Coal Operators’

Association, Inc. (case), 136-37

United States Court of Appeals for the Fifth Circuit, 133-34

United States Court of Appeals for the Fourth Circuit, 82, 84, 89-90, 93-95, 104, 119, 135, 148-49,

153, 176, 181, 184-85, 187

United States Court of Appeals for the Ninth Circuit, 146, 147

United States Court of Appeals for the Second Circuit, 176-77, 188

United States Court of Appeals for the Seventh Circuit, 179

United States Court of Appeals for the Sixth Circuit, 134, 149-53

United States Court of Appeals for the Third Circuit, 145

A-5

United States Supreme Court, 13, 85, 91-92-97, 103, 107-09, 111, 115-16, 122, 135, 145-48, 150-

51, 154, 156-58, 169, 171-72, 174-75, 179-82

United Steelworkers of America, 139

Utah Supreme Court, 129

Vietnam, 7, 8, 10, 11, 17, 33, 39, 40, 43, 46, 52, 77

See also Clark, Elton Willis

Waco, Texas, 1, 3, 10-12, 21, 28- 31, 38-39, 46, 50, 52, 54, 57, 62-63, 65, 89, 107, 109

Ward, Bernie, 82, 83, 84, 93, 116

Washington & Lee Law School, 131

Weinberg, Bob, 38

Weinberger v. Weisenfeld (case), 98-99, 121

White, Byron, 92

Wiggins, Sam, 165

women

arguing cases, 114

equality, 126

excused from juries, 98

in law school, 5, 20, 22, 24- 25, 35, 39, 56-58, 61, 63, 65, 72, 76-77, 85, 88-99, 121, 125

the law, 88-91, 94, 107, 111, 120, 125, 144-45

in the military, 98

issues, 100

judges, 111

law firms hiring women, 104

rights, 97, 100

Wright, Charles Alan, 82-83, 93, 116

Zittarelli, Earl, 170-71

B-1

ORAL HISTORY OF JULIA PENNY CLARK

Table of Cases and Statutes

Cases

Bakery and Confectionary Union v. Just Born II, Inc., No. 17-1369 (4th Cir. 2018), 146

Bank of Carolinas v. Burkett, 725 S.E.2d 473 (N.C. Ct. App. 2012), 134

Beck v. Pace International Union, 551 U.S. 96, 146

Brown v. Board of Education, 347 U.S. 483, 13

Connell Construction Company v. Plumbers and Steamfitters Local Union No. 100, 483 F.2d 1154

(5th Cir. 1973), 106

Goodman v. Lukens Steel, 482 U.S. 656 (1987), 145

Kingsville Independent School District v. Janet Cooper, 611 F.2d 1109 (5th Cir. 1980), 132-33

M&G Polymers v. Tackett, 135 S. Ct. 926, 149

Osberg v. Foot Locker, Inc., 15-3602-cv (2d Cir. 2017), 176-77

Pender v. Bank of America, 756 F. Supp. 2d 694 (W.D.N.C. 2010), 138

Rawson v. United Steelworkers of America, 726 P.2d 742 (Idaho 1986), 156-58

Schlesinger v. Ballard, 419 U.S. 498, 102-03

Shy v. Navistar International, 11-4143 (6th Cir. 2012), 142, 160

Stanton v. Stanton, 421 U.S. 7, 109

Steelworkers v. Rawson, 495 U.S. 362, 156-158

Trull v. Dayco Products, 329 F. Supp. 2d 658 (W.D.N.C. 2004), 123

United Automobile Workers v. Johnson Controls, Inc., 499 U.S. 187 (1991), 174

United Mine Workers of America 1950 Benefit Plan and Trust v. Bituminous Coal Operators’

Association, Inc, 898 F.2d 177 (D.C. Cir. 1990), 136-37

Weinberger v. Weisenfeld, 95 S. Ct. 1225, 43 L. Ed. 2d 514 (1975), 98, 101

B-2

Statutes

Civil Rights Act of 1964, (Pub.L. 88–352, 78 Stat. 241, enacted July 2, 1964), 54

National Labor Relations Act, 29a U.S.C. §§ 203.1-203.77 (1946), 146-47, 186

Norris-La Guardia Act, 47 Stat. 70 (1932), 103

Pregnancy Discrimination Act, (Pub.L. 95–555), 135

Public Accommodations Act (Title II of the Civil Rights Act), 42 U.S.C. §2000, 54

.r\

/t/

PERSONAL:

EDUCA,TION:

JULTA PENNY CI.ARK

Born February 23, L948, ín Oak Grove,

LouÍsiana

Sinele

HeÍ[ht 5’6rr; weighr LzO lbs.

UnÍversity of Texas School of Law Austin, Texas

J.D. May 1973

Grade Average z 89.4

Cl-ass rank: l-st in class of

approxÍrnately 500

Honors and actÍvíties:

Order of Ëhe Coif

Note & Comunent Editor, Texas Law

Review

OuËstanding Editor L972-73 (Selected

by Board of Editors)

Seníor Student Most Líke1y to Achieve

Distinctíon ín Ëhe Practice of Law (a Law Day award; selection by

student conrnittee)

ChanceLLor (Scho1-astíc honorary)

Outstanding Midlaw StudenË

(a Law Day award)

Best casenote in the fiel-d of

Ëorts L972

SemifinaLíst ín freshman mooË court

competítion

UniversÍty of Texas at AustÍn

B.A. with híghest honors, L969

Grade poínt average:

3.9 on 4-poínË scal-e

Major subjects: EnglÍsh and Spanish

Honors: Phi Beta Kappa (junior year)

Undergraduate Spanish

departmental- award L966

La Vega High School, Bellmead, Texas

Graduated 1965

VaLedíctorÍan (class of 100)

National Merit Scholar

PUBLICATIONS:

EMPLOYÏ\,IE}[Ï

REFERENCES:

NoËe, 50 Texas L. Rev. 4LL (L972)

Connnãnt, The Labor Unionrs Duty of

Fair RepresenËation: A

TheoreticaL StrucËure,

51 Texas L. Rev. 11-l-9 (1973).

Law CLerk Ëo LewÍs F. Powell, Jr.

Assocíate JustÍce of UnÍted States

Supreme Court. AugusË L974 vo

presenË.

Law Cl-erk to Judge J. BraxËon Craven, Jr.,

Uníted States CourË of Appeals for

Ëhe Fourth Circuit, Ashevill-e,

North CaroLína. AugusË L973 to

July L974.

Teachíng Assistant, CLEO InstituEe,

University of HousËon Law School.

June-JuLy L973.

Sunrner Law Clerk, VÍnson, ELkÍns, Searls, , Connally & Smith, Houston, Texas

June-JuLy L972.

Secretary/Law Clerk, Fowl-er & Fowler,

Austin, Texas. StÍmner L97L.

SecreËary/Interpreter, Legal- Aid & Def

SocíeËy of Travis CounËy, Texas (Austín). February L969 to

AugusË L970.

enderr

Secretary, AustÍn Orthopaedic Clinic,

AustÍn, Texas. May L966 Ëo

January L969 (part Ëíme during school

Ëerms, fuL1 time in surmners) .

T-y pist, Lã Vega Independent School District Bellmead, Texas. Suqrner L965

Mr. JusËice Lewís F. PoweLl, Jr.

UníËed SËates Supreme Court

I’IashíngËon, D.C. 20543

Judge J. Braxton Craven, Jr.

UníÈed StaËes Court of Appeals for the

Fourlh Círcuit

AshevÍlle, North CaroLina

Dean Page Keeton

University of Texas School- of Law

25OO Red River

AustÍn, Texas 78705

Professor Bernard J. trIard

Universíty of Texas School of Law

Professor CharLes Alan tr’lright

UníversÍty of Texas School of Law

/ Biographies

Moxi Upadhyaya is an experienced trial attorney who has represented businesses and individuals in numerous bench and jury

trials and depositions. Although she maintains a national practice, Moxi is often sought out for her extensive knowledge of the

District of Columbia federal and local courts and administrative agencies, given her unique prior government service in the

District.

Moxi’s clients include universities, hospitality companies, medical systems and practices, energy companies, commercial real

estate developers and owners, professional services organizations, and local businesses. In addition to handling complex

commercial disputes, including breach of contract, breach of fiduciary duty, and defamation claims, she has represented large

organizations in Title VII employment suits. Her practice includes regulatory and administrative litigation challenging

regulations and agency orders in the DC Circuit and other DC courts.

Moxi is uniquely familiar with practice in the DC federal and state courts. While serving as a law clerk to the Honorable Robert

Wilkins of the U.S. District Court for the District of Columbia, Moxi advised on pending complex civil, administrative, and

criminal matters involving high-profile issues of first impression. She regularly confronted questions of constitutional law,

contract interpretation, statutory interpretation, federal civil procedure, and DC law. Prior to joining Venable, Moxi served a

two-year term as law clerk to the Honorable Eric T. Washington, former chief judge of the District of Columbia Court of

Appeals. While there, Moxi was involved in numerous complex civil, criminal, and administrative cases that presented issues of

first impression affecting the District of Columbia.

Moxi serves on the U.S. District Court for the District of Columbia Committee on Grievances, as well as the Board of Directors

of the Council for Court Excellence and the D.C. Access to Justice Foundation. She previously served as co-chief of the D.C. Bar

Litigation Section Steering Committee. For her pro bono work, she has been given the Defender of Innocence Award from the

Mid-Atlantic Innocence Project, Venable’s Benjamin R. Civiletti Pro Bono Lawyer of the Year and the David W. Goewey

Lawyer of the Year award. Moxi received her J.D. from American University, Washington College of Law, cum laude. She also

holds a B.J. magna cum laude, from the Missouri School of Journalism, and an A.B., with honors, in Latin from University of

Missouri.

Moxila A. Upadhyaya

Partner

maupadhyaya@Venable.com

Washington, DC | +1 202.344.4690

pc/sa 10/1/74

TO:

FROM:

MEMORANDUM

Mr. Justice Powell

P@Ht\’ Cla~Rwe.1.1, Jr.

DATE: October 1, 1974

No. 73·7S9 Edwards v. Hea.ly

No. 73•776 Schlesinger v. Ballard

No . 73-5744 Taylor v. Louisiana

These three ca es were grouped together for memorandum

treatment because each involves the validity of a gender

classification. One is a man’s challenge to a sex-differentiatac

aspect of the Navy’s promotion system. The other two cases

are challenges to Hoyt v. Florida, 368 U.S. 57 (1961), end

the Louisiana practice of calling women for jury service only

if they volunteer. I have attempted to outline an approach

to sex discrimination that will harmonize with your opinions

on equal protection, with special attention to the role the

Court should play in this controversial area.

I , YOUR OPINIONS ON EQUAL PROTECTION

The opinions you have w:tttten, in chronological order,

are: Weber v. Aetna Ca ualty & Surety Co., 406 U.S. 164 (1972);

James v. Strange, 407 U.S. 128 (1972); McGinnis v. Royster,

410 U.S. 263 (1973); San Antonio Independent School District

Rodriguez, 411 U.S. 1 (1973); Frontiero v. Richardson,

411 u.s. 677, 691 (1973) (concurring opinion); In re Griffiths,

413 U.S. 717 (1973); Cleveland Board of Education v. LaFleur,

414 u.s. 632, 651 (1974) (concurring a-pinion). Although the

opinions vary, in that so use the classic two-tier review

and others avoid it, they outline a consistent framework of

equal protection principles.

Strict Scrutiny

You have not applied the “fimdamental

rights” branch of strict scrutiny, but the opinion ‘\n

odriguez limits it by holding that the doctrine applies oni~

to rights that are “explicitly or implicitly guaranteed by the

Constitution.” 411 u.s. at 33-34. As Justice Marshall notes

in dissent, id. at 100 n. 59, this limitation relegates the

“fundamental rights” doctrine to s small corner of equal

protection law. When a state classification intrudes on the

exercise of a fundamental constitutional right, it will .

frequently be invalid under the clause that guarantees that

right, without resort to the equal protection clause. In any

event, the “fundamental rights” doctrine ‘has no special role

to play in sex discrimination.

Suspect Classifications. In Rodriguez you outlined

the factors that govern the determination whether a particular

class should be labeled “suspect” for purposes of equal

“Protection law: whether the class is “saddled with such

disabilities, or subjected to such a history of purposeful

uneQual treatment, or relegated to such a position of political

powerlessness as to command extraordinary protection from the

majoritarian political process.” 411 U.S. at 28. In In Re

Griffiths. you followed the Court’s precedents declaring

alienage a suspect classification, but in Frontiero you resisted[

the plurality’s haste to declare sex a suspect classification.

Griffith outlines the analysis that applies to

~I legislation that discriminates against a suapect{the state

must have a constitutionally permistible and substantial purpose1

and the classification must be necessary to achieve it.

“Lower-Tier”

Your opinions have departed from the classic pattern of

“rational basis” review, a stated in McGowan v. d,

366 u.s. 420, 425~26 (1961):

?<-

Al though no precise formu a has been deve oped, t e

Court has held that the Fourteenth AmendmentsJ rmits

the St tes a wide scope of di cretion in nae ng

laws which affect some group of citizens d ff ntly

t others. The con titutional saf~~ rd is offended

only if the classification rests on ~ounds wholly

irrelevant to the achievement of the 3tat ‘ objectiv •

State legislatures are pr sumed to have scte within

their constitutional power despite the fact that, in

practice, their laws result in some inequality. A

statutory discrimination will not be set aside if

any state of facts reasonably may be conceived to

justify it. ·

Your first equal protection opinion, Weber v. Aetna Cas alty

& Surety Co., held that the eQUal protection clause reQuirea

“that a statutory classification bear some rational relation·

ship to a legitimate state purpose.” 406 u.s. at 172. This

Stat ment was taken by Justice Rehnquist, g. at 181, and by

Gerald Gunther (8.Dlong others), as a sign that the Court

E-3

would make more active use of the equal protection clause.

Your subsequent opinions have elaborated on Weber. The

basic question ie “whether the challenged dietinction

rationally further.a some legitimate, articulated state purpose.”

McGinnis, 410 u.s. at 270. Answering this Question requires

two stages of inquiry: identifying the state interest, and

deciding whether the classification promotes it. As to the

fi:tst atage, McGinni refused to supply an “imaginary” basis

to uphold a statutory distinction, id. at 277. but your

opinion in LaFleur deviated slightly from the McGinnis auggastiort

that the state’s purpose must be articulated, stating that the

classification “must at least rationally serve some legitimate

fl::,

articulated or obvious state interest.” 414 u.s. at 653 n. 2

(emphasis added). From 1cGinnie comes also the proposition

that the state’s primary purpose ’11 not controlling for equal

protection analysis; a secondary purpose may also ~uatain the

classification. Finally; there is the obvious requirement that

the state’s purpose be constitutionally permissible ’11tis

requirement is usually implicit in the use of the word

“legitimate”, hut at times it emerges more clearly. For

inatance. James v. Strange recognized the state’s legitimate

interest in recouping the costs of providing counsel for

indigent defenda~te, but invalidated the harsh treatment of

criminal defendants because the state’s scheme smacked of

“punitiveness and discrimination.” 407 U.S. at 141-42. Your

opinion in LaFleur hinted that a school board’s delire to

E-4

to keep children from seeing pregnant teachers would not support

the mandatory maternity leave program. 414 U.S. at 653. And

Weber, of coura9, refu1ed to let the state discriminate against

illegitimate children in order to punish their wayward parents.

406 u.s. at 175-76.

‘nle a cond stage of the inquiry–whether the classification

in fact promotes the state’s purpose–is more subjective. In

Rodriguez you rejected the contention that th classification

must fall if better alternatives can be found, 411 U.S. at Sl.

Nonetheless, exploration of alterna~ives is sometimes helpful

in deciding whether the characteristics of the class correspond

to the state’s purpose. If the classification is “irrationally

overinclusive”, as in r. Fleur, it may be impermissible even

though the state’s purpose is fully operative with respect to

some members of the designated class.

Dealing with overinclusive classifications is perhaps

the moat difficult problem in “lower-tier” eQ~ill protection

review. Classifications almost inevitably include some persons

whose individual characteristics do not fit the legislature’s

underlying purpose. But at least in “lower-tier” review,

the Court haa not demanded a perfect correlation. Dandridge

Williams, 397 u.s. 471, 485 (1970). In some areas,

particularly in ta,x “aoci 1 welfare” schemas, the Court

has been very tolerant of this overinclusivenesa. In Gi:th~s ,,

particularly the illegitimacy cases, ~ v. ~, 407 u.s. 1

(1971), and the “irrebuttable presumption” cases, it baa

E-5

1 –

found the interests of the aberrant individuals to outweigh

the state’s rea$0ll for proceeding by classification. The

prinae examples are Vlandie v. Kline, 412 u.s. 441 (1973),

and Stanl y v. Illinoi , 405 u.s. 645 (1972), although both

disguised as due process cases. Chief Justice Burger’s opinion

last term in Jimenez v. w inberger, 416 u.s. —· 94 s.ct.

2496 (1974), is one of the few such cases premised on equal

protection. The •tate interest regularly asserted in thee

cases to justify an overincluaive classification is

administrative convenience because :ndividualized determitta-

tiona are often the only alternative to classifications,

Justice White views the problem in terms of the importance of

~t-,

the individual interest:

[I]t must now be obvious, or ha been all along,

that, as the Court’s assessment of the weight and

value of the individual i ·nte st es ca lat s, the

less likely it ia that mere administrativ

convenience and avoidanc of hearings or

investig tions will be sufficient to justify

wh t otherwi e would app ar to be rrational

discriminations.

Vlandis v. Kline, 412 U.S. at 459 (White J., concurring).

This rationale explains Stanley, and perhap.s Vlan i , but it

does not explain ~ or Ji nez, both of which appear to turn

on the sensitivity of the classification rather than the

importance of the individual interest. In -Reed the woman’s

interest in admirtietering her son’s estate was relatively

minor; in Jimenez the children’s interest in Social Security

payments was greater, but the case is too close to Dandridg

to allow distinctions ba1ed on the nature of the interest.

E-6

rhe difference in intereets and hardahipa does, however,

seem to explain the Courtls continuing use of • “minimum

rationality” test for taxation and (perhaps) welfare ola•sificatiana.

You alluded to such cases in Rodriguez, 411 U.S. at

40•41, and quoted a 1940 case that required “hostile and

oppressive discrimination” to overcoma a tax claaaificatlon’1

presumption of constitutionality. The Court applied the eame

teat in Lebnhausen v. Lake Shore Auto Parts Co., 410 U.S.

3.56 (1973)’, and referred to it again in Kahn v. Shevin, 416

u.s. ____ , 94 s.ct. 1734 (1974).

I I. SEX DISCRIMINATION

~ and Frontiero have already taken discrimination

against women out of the “minimum rationality” standard of

review. They also have implicitly overruled the Court’s

earlier cases considered sex a permissible classification,

whatever the legislative purpose, Professor Kurland,

suggesting an approach to the Equal Rights Amendment, anticipstec

the Court’s current stance on sex discrimination:

The mere fact that there are two sexes should not

be re son in itself for distinguishing between

them in legislation. On the other handJ the

mere fact that a distinction was drawn betw en

them ought not suffice to invalidate the law.

Kurland, lbe Eouel Rights Amendment: Some Problems of

Construction, 6 Harv. Ci~. Rts.-Civ. Lib. L. Rev. 243, 249-SO

(1971). What the Court has not yet decided is what reasons

will justify gender distinction• and what role the Court

E-7

should play in the moveinent toward sexual eouality.

Four members of the Court, of course, would declare

gender a “suspect classification.” The great bulk of current

law review commentary also argues (o

statu should b accorded to ~IMWP8″1!

assumes) that ”susp ct”

classifications. The

issue is usually approached in doctrinaire fashion. Aided

by philosophical essays comparing the status of women to that

of Negroes, the equal rights proponents contend that “suspect”

status is appropriate: women have been the victim9 of

discrimination and oppression, they are s discrete and

highly visible class (some even try to argue that women are

an “insular minority”), and they traditionally have had little

J ·. 4

voice in the political process. What is seldome explicit

in these discussions is the ultimate goal behind labeling

sex a suspect classification: the abolition of all, or

virtually all, distinctions between the sexes. One of the

leading articles on this point of view would concede only

a limited role for sex in legislation: laws dealing with

physical characteristics ‘Ul\ique to one sex. tm.der thi

umbrella the authors would place rape laws, laws relating

to determination of fatherhood, and few others. Brown,

Emerson, Falk, & Freedman, t:

A Constitutional sis for Eo al Rights for Women, 80 Yale

L.J. 871, 893·96 (1971), Others (though few are bold enough

to express moderate views in print) have a more limited

goal: the elimination of “those vestigial laws that work

E-8

an injustice to women, ·that are exploitative or impose

oppressive discrind.nations on account of sex.” Freund, I!!!.

Equal Rights Amendment Is Not the Way, 6 Harv. Civ. Rts.•Civ.

Lib. L. Rev. 234 (1971).

The difference between the two camps is more than a

matter of goals. They also differ in their perception of

the judicial role. The activist groups see the courts as

the primary protectors of equality. They want the courts,

and this Court especially, to take the lead in eliminating

sex discrimination. They want a Brown v. Board of Education s

for women. What they often overlook are the differences

between racial discrimination and sex discrimination, and the

limits on the judiciary’s role in the latter area.

Although there may be some parallels between racial .

discrimination and discrimination against women, there are

fundamental differences. Women have never been an isolated

class. Although society has given women a distinct and, in

some respects, inferior role, women have participated in the

discrimination. Nor have women been completely isolated from

the political process. Although they were long excluded

from the process itself, they have always had ready access

to ita i>articipants. ‘ftle chief difference is that many

sex-based distinctions were written to protect women. The

protectionist laws have often been misguided, many are

anachronistic, and large numbers of women now consider them

insulting, but special laws for women were never intended

E-9

10.

to eliminate contact between the aexes. The discrimination

has had its psychological eff•cts, but they are different

both in kind and degree, from Jim Crow apartheid.

The moat critical difference between racial diacrimina·

tion and sex discrimination is that many women still want

and ne d the special protection of sex-based distinctions .

It might be reasonable to take the special protection away’,

from women of my generation, who have had much the same

educational and career opportunities that men have had.

Equal pay laws could take up the alack. But many women were

denied the opportunity to prepare themselves for eauality.

They want and need laws that give them economic protection,

!.<

and it would be unwise, if not unjust, to take their protection

away in the name of equality.

For these reasons, the moveinent toward legal equality

for women requires political solutions. Until recently,

special laws for women accurately reflected the nation’s

social structure. As the social structure changes, the

laws will also change. But only legislation can acconmodate

the demand for equality with the continuing need for special

protection. The laws governing family ppoperty and support

arrangements are a good example of the limits on the judicial

process. Proponents of full .sexual e(1uality insist that the

aims of property and support laws can be achieved by rewriting

statutes in sex-neutral fashion. But a federal court cannot

declare that a state statute requiring a man to support hi1

E-10

11.

children should be construed to impose a support obligation

on a spouse who eams money. The court is limited to two

altematives: it can nullify the entire statute because it

discriminates against men. or it can hold that the statute

must apply to both fathers and mothers. The former result

would leave children without an enforceable right to support;

the latter would be unjust to women who have relied on their

I special legal status in choosing not to develop job skills.

It may/ ultimately be desirable to reshape society so that

both parents share the responsibility for supporting their

children, but the courts are unsuited to the task.

Finally, there is an essential irony in the activists’

?•:.

arguments. They begin by asking for “suspect classification”

‘• status, on the ground that the history of discrimination

I against women rectuires that courts give them extraordinary

protection from the majoritarian political process. The

same groups, however, would use the suspect classification

doctrine to strike down laws that discriminate against men.

There is surely no reason’to give men extraordinary protection

from the majoritarian political process. Since men have

controlled the political process all along. they have imposed

these discriminations on themselves. The only justification

for striking down laws that benefits women is an analogy to

the still questionable proposition that the Constitution is

color-blind. But the analogy has serious flaws. The history

of the fourteenth amendment can be mustered to support a

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12.

judicial judgment tbat eQual treatment for the races demands

that the law avoid all racial distinctions. There ia no

explicit support in the Constitution for the proposition that

all sexual distinctions are verboten; that proposition depends

on an essentially social judgment. And that social judgm nt

falls outside the usual role of the courts under the eQual

protection clause.

Despite the _obje~tions t.o giving sex “s1111peet:” statu•

under the equal protection clause, the usual role of the. courts

can acconmodate a standard of review that offers more protection

than the old standard of minimum rationality. ~ and

Frontiero have begun the process by committing the Court to

I.·

a more careful review of sex distinctions. True, neither case

purported to overrule Coesaert v. Cleary, 335 u.s. 464 (1948),

which approved “drawing a sharp line between the sexes” without

investigating the reasons behind it, or Muller v. Oregon,

208 U.S. 412 (1908), which suggested that woman’s “habits of

life” could be invoked in support of almost any sexual

distinction. But Reed disapproved a sexual classification

in an area where any other classification would have been

accorded only minimwn ‘review. For example, Oregon’s probate

statute provided that the children of the deceased would be

given preference over the par nts. There is no doubt that

the Court would have passed quickly over a parent’s claim

of discrimination. Nor can it be $aid that preference for

men over women was wholly arbitrary; statistical information

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13.

would no doubt suet in the- state’s contention that men as •

class have more administrative experience than women a1 a

class. Although the Court did not say so explicitly, the

import of the opinion is th t sexual distinctions must be

supported by something more than assumptions about the re•peotive

roles of men and women. The result in Frontiero follows the

same principle, rejecting the assumption that married women

have no dependents because their hushands can be expected to

support theinselves.

Such an interpretation of -Reed. a nd Frontiero is consistent

with the Court’s proper role in preventing discrimination

against disfavored groups. Even though the discrimination

,,t1.

against women has not been as pernicious or pervasive as the

discrimination against racial minorities, it is historical

fact. Women are just now beginning to enjoy an active role in

the political process. Some sex-based laws have excluded

women from job markets; other have either encouraged or tolerated

discrimination against women in the private sector. There is

~ reason to tolerate delib~rate discrimination against women.

Moreover, the changing role of women in society demands that

the courts be increasingly sensitive to laws that draw sexual

distinctions. Assumptions about women’s behavior may no longer

correlate with fac.t, and legislation based on those assumptions

may be irrationally overinclu1ive.

‘111.e touchstmae of review should be injury to women. The

equal protection clause should not strike down laws that off r

E-13

14.

women protection. Frequently such protection can be viewed

as compensation for past discrimination •• !!bB, v. Shevin is

a good example of this kind of legislation, and the proper

reeponse to it, and Schle inger v . Ballard i1 an even stronger

case (to be diacuaaed fully in a later section). Laws that

giv women special privileges in the area of marital wealth

are not strictly compensatory, but they can be viewed as

legitimate protection for those women who were denied opt>Qrtunitiea

for self-sufficiency. Protective labor legislation

presents special problems. Some pr~tective laws offer

legitimate protection to women workers. Thus, a law prohibiting

employers from requiring women to lift specified weights could

be sustained. Other protective laws are economic discrimination

in disguise. For instance, one state had a law that

prohibited women from taking jobs that required them to lift

. 6

more than 15 pounds. Some states have laws that prohibit

giving women overtime work, even at premium ~ay. Other state

still bar women from particular occupations. Title VII may

effect changes in these laws. Insofar as they require job

discrimination against women, the EEOC has ruled that employers

cannot follow them. They will nonetheless pose difficult

problems on equal protection review. If their effect ia to

protect women without excluding them from economic benefits,

they should be upheld. Bu,t if their major effect is to keep

women out of the job market o.r to preserve jobs for male

workers, they should be invalidated. For tho1e laws that

E-14

effedt both discrimination-and protection. the best approach

may be to compare the harm of excluding willing women from

certain jobs, w1 th the harm of taking protection away from

those who want it.

15.

Other laws that protect women are subject to challenge

only by men. For example. the selective service 1aws work a

clear discrimination against men, but no women can claim injuey

as a victim of their discritnination. Some TJnTnQTI may perceive

insult in being excluded from “first-class citizenship.” but

I should hope something more would be required for standing.

The draft is such a touchy is·sue that the Court would be well

advised to avoid the question if possible. But if the Court

is forced to take a case on the question, it would be far

b8tter (symbolically) to hold that the equal protection clause

was not designed to protect the po• litical majority from itself

than to rely on generalizations about the respective roles of

men and me •

Whetl there is no pretense of protection and the discrimina•

tion is apparent on the face of the law, there will seldom be

a legitimate reason for making a sexual distinction. .;:;.S.-t==

Stanton, No. 73•1461 (appeal pending; on the discuss 11 t

for the October conference), presents a clear ca e of

discrimination ag•inst n without any pretense of protection.

The case ia a mother’s suit for child support. Appellant

and appellee were divorced in 1960. 11\e divorce decree required

appellee to pay $100 per month for each minor child’s support,

E-15

16.

The daughter turned 18 in 1971, and pp llee stopped contributing

to her support, Utah court• require child support only thl:’ough

the perlod of minority, and 1.5•2•1 Utah Code Amt. define• the

period of minority:

The p riod of minority ext d in mal s to the

21 y ar and in femal 1 to th t of 18 years;

but 11 minor obtain thier majority hy marriage.

The Utah Supr Court rejected appellant•• contention t t this

statute waa unconstitutional when applied to deprive females of

1upport at age 18, It justified the distinction on the ground

that “it ia a salutary thing for [the male} to get a good

education and/or t~aining before he undertsk a [the]

reaponaibil:ltiea” ,o f providing a home for hi family. Femal s,

the court said, “tend generally to mature pby ically, emotionally

and tally befor boys, and • • • they generally tend to

marry arlier.” Th earlier age of marriage, of course, a ot

support the distinction, since marriage end1 the support

obligation in any event. The only distinction left is th

notion that the state should give males an enforceable source

of support up to th ge of 21 so that they c educate th maelvee,

while the f le i• left on her own at age 18 bee uee

has a le ser n ed for education Pardon my out• ge. Thia

kind of aaeumption about b havioral differences b tween

, and e1,.cially. t aasumption that women do not

have to support t mselves. is at the heart of economic

diecn.mination again•t women. Moreover, the aaumption t t

women do not need education may no longer have a factual b ala.

E-16

17.

In 1973 52.3 percent of all women between the ages of 18 and

64 were in the labor force, and a 1ub1tanti 1 percentag of

th m w re the sol •ourae of eupport for themaelvea and th ir

children.

The Utah Supreme Court gave another r aeon for leaving

th diacrimination intact: if both male and femal a muat

be governed by the aame age rules, the court would hav no

baai for choo1ing 21 rath r than 18. Thi• could be a

significant problem in other states, but in Utah it is nothing

short of speciou1. .Another Utah statute, 78·45·2 Ut h Cod

Ann., imposes an obligation of support on both parents for

children of both sexes up to the age of 21. Even if the Utah

courts hav not applied this latter statute to poet-divorce

support obligations, it provides a aolid guide to the Utah

1 gi1lature’ wish that both males and femal 1 should be given

parental upport up to the age of 21. The exiatenc of this

statut• makes St ton an ideal case for resolving the question

of sex di crim.t.nation in aup~ort obligations. I recommend that

you note the appeal and rever••·

Other age dif ferential1 on the basil of sex may not

pres t the same problems. Many atatee pr scribe differ t

ag•a for marriage. for making contract• or buying liquor, or

for jurisdiction in juvenil courts. All euch claa ifications

should be subjected to a “1egitimate state int rest” teat.

S will be baaed on fact (for instance, different agea for

driv r licensing baaed on teen gers’ safety records). Othere

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18.

may be baaed on the • aasurnption that the Utah Supreme

Court employed. If the age differential discriminates against

men; it should not stand unlea1 it is baaed on fact or an

as umption that accords with fact.

In aU1DDtAry, 1 would recommend using the “legitimate state

interest” formula in 1ex discrimination case , with a few

epeci 1 touch••· First, lawa that protect w or give them

special treatment should be sustained. Moat will be supported

by a 1 gitimate state interest in protecting the victims of

p st discrimination. Because of thi1 principlei a man’s

challenge to legislation that favors w n will seldom succe d.

If the law cannot be vi d as compensatory, the man’s

challenge should be teated by a “minimum rationality” atandard

b cau a there is no reason to give him special protection from

the majoritarian political process.

Second, laws that use sex as a classifying device without

good reasons (preferably factual) should fall under Reed.

Third, laws that discriminate againet woman will usually be

‘

” “11a\1.W under the “legitimate stat interest” standard.

Legi lative assumptions about women’s prope~ role should be

vie d with grave aul!lpicion. And finally1 laws that

discriminate against s women and protect others should

be analyzed with an eye toward reaching a rough acconnodation

of the opposing interests.

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19.

I II • THE CASES

Sohl singer v . Ballard

Lt. Ballard 11 a Navy lieutenant. He was an enlisted

man for 7 years b fore h waa conmi1 ioned, and he has b n

an officer for about 10 y are. Becauee he bad been up fo~

promotion twic without being ele~ted, Lt. &allard wa1

1cheduled for diacharge in June 1972 under th Navy’• “up ‘or

out” program. He brought thi1 suit to enjoin the diacharg •

contending that he waa the victim of ex diacrimination b cause

I a female lieutenant could not be di charged und r the eame·

circumatancea, but would be entitled to a 13 year tenure •

an officer. If Lt. Ballard could claim the same 13 year1,

h could opt for retir t rather than di charge.

A thrae-judg district court was conv d. It first

i1aued a temporary r straining order to block Ball rd’• di •

aharg • Then, after n arly a year had pas1ad, it ia ued a

permanent injunction under.which Ballard has remained in th

Navy. If he can hang on until February, he will have accumulated

nineteen and one-half years of service, a tenure that would

ordinarily entitle him to retirement benefits. The Navy aaye

it do • not know wh ther the time under injunction will count

tow rd retire nt if thie Court reverses the lower court after

February.

The district court’• opinion ia diama1. The court de

no attempt to put the diacharg statute in context, but

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20.

characterized it solely •• -a fiscal device to wee’ll. out a urplua

of N vy officere. Taking this narrow view of the legislative

purpose, the court could find no rational baaia for giving

women officer• a longel’ t ure. The court alao held that aex

wa a auspect claasificaticm under Fronti ro and that the

Fronti ro rule applies both to lawe that favor men and la a

that f vor wo n.

The government deserves part of the bl for the district

court’• superficial opinion. At the beginning it gave the

court very little information about the promotion syata11l.

th court’• opinion c out, the government apparently r lized

for th firat time that it risked lo1ing the case. It th n

filed two affidavt’ta and a motion for a ”new trial.” ‘!hie

motion was deftied. Appellee here argues that the affidavits

offel’ed after the case w 1 d cided’are not properly befor

this Court unle•• the district court abused its discretion

in denying the motion for n trial. Teclmically he is corr ct,

but the problem is subject to a large fudge-factor. Virtually

all the material in the post•decialon affidavits is subject to

judicial notice. It largely consists of statutory material•,

the history of the women’s program in the Navy. and stat:i tics

on th number of officers in various categorie1. The only

material in the affidavit• that ie not clearly subject to

judicial notice appears on pages 24A and 25A of the appendix.

‘this, too, may be aubject to an eXpanded standard of judicial

notice. But, in any event, it ie not essential to resolution

of the caae.

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21.

The discharge statute•- in isaue are 10 u.s.c. § 6382( )

and 10 u.s.c. § 6401. They are part of a complex 1tatutory

system goveming promotion in the Navy. I will describe it

aa briefly aa possible.

The Navy maintains separate promotion lin s for each of

a v ral categories of offic ~•· There i• one promotion lin

for Reserve officers, another for officer• in each staff

corpa <.!.. &• , JAG, dical Corpe • Nurse a Corp a) , and another

for “line” officers. Separate promotion line• are maintained

for male and female olficers in each cat gory except four of

10 ‘

the ataff corps. Each year the Secretary of the Navy conven e

a selection board ,f or each rank in each category. 10 u.s.c. ‘

§ 5701, .5702, .5704. From a list of eligible officers, th

aa1action board makes recommendations for promotion on the

basis of merit. By tatute, -a lieutenant must serve four years

in that rank before he is eligible for promotion, §§ S7.51(a)(4),

S752(a)(3), but the time-in-grade requirement for men was

suspended by executive order during the Vietnam conflict.

The number of lieutenants that can be promoted in a giv year

d pends on the number of vacancies in the rank of lieutenant

commander. II 5756, 5760(a), 5762(d), 5763. The DMkXimum

numb r of male lieutenant connnandera is set by statete.

15 .5442, 5447(a). The number of women officer is set by

the Secretary. § 5452.

After calculating the numb r of promotion• available in

a given year. the Secretary establishes a “promotion zone”

E-21

22,

with reference to anticipated personnel needs over a 5•year

peioiod. S S764(a) 1 (d). The “promotion zone” is a section of

the list of officer• eligible for promotion, arranged in order

of seniority. It do • not affect promotion eligibility; officers

below the zone are atill eligible for aeleotion. Its only

fmction r late• to the “up or out” program: it designates

those of ficera who will be deemed to have “failed of selection”

if they ar• not cho1en for p~omotion. I 5776.

The chief operative provi1ion ol the “up or out” program

is 10 u.s.c. I 6382, which appliea to all male line officer•,

to male officers in a 1taff col’pl other than the Nurse Corpa,

and to many femal staff corps officers. Subsection (a),

which applies to lieutenants, provtde1:

Each offic r on the active list of the Navy

serving in the grade of lieutenant, except an

officer in the Nurse Corpe • • • shall be honorably

discharged on June 30 of the fiscal year in which

h i considered as having failed of selection for

promotion to the grade of lieutenant COUIQ8.nder

•• for the second time. However, if he so

requeatsr he may be honorably discharged at any

time dur1ng that fiscal.year.

Subsection (c) provides for severance pay, to b calculated

with reference to length of service, but not to exceed two

years’ basic pay.

Women lieutenants appointed under 5 .5.590 (this includes

all women line officers and some wotaan staff corpa officer•)

are subject to involuntuy diacharge under I 6401:

Each woman officer on the active list of the

Navy. appointed under section 5590 of thi• title,

who holds a permanent appointment in the grade of

E-22

lieutenant • • • ahall be honorably diacharged on

June 30 of the fi1c 1 year in which·-

(1) h i not on a promotion list; and

(2) she has compl t d 13 years of active

comniaaioned service in the Navy • • •

~Ho er if sh so r qu ats, sh may be

~1- honor ble discharged at any ti during that

i cal year.

Separation pay is 24 times the officer’s monthly basic pay,

23.

but it may not exceed $15,000. Li•utenante in the Nurse Corps

(both male and f male) ar 1ubject to I 6396 , which is id tlcal

to I 6401 except for the maount of aepar tion pay.

There are two differ c • between I 6382 (a), on the on

aide, and II 6401 and 6396 1 on the other. ’11l most obviou

difference is the ti factor. A male lieutenant ia not

guaranteed a 13•year t nure under I 6382(a). If t ti •in•

grad requir nta ware not under au1penaion, h v r, th

w rage tenur of a male 11 utenant who had twice failed of

promotion would be 13 y ara: he would 1pend 3 years as en ign,

3 y ars ae a lieutenant (j.g.), and 6 yeara as a lieutenant

before being placed in a pi:oanotion zone the firat time. I 5768.

On mor year. making a total of 13, would pa•• before hi•

aecOltd failure of sel ction, The inequality la therefore

t result of an accel ration of promotion made nacesaary

by the Vietnam conflict.

‘l’he aecond difference is tht neither f 6401 nor I 6396

requir a that the offic r have “failed of selection” befor

involuntary diacharg • ‘I1l reason for this difference is

historical. Until 196 7 neither Hurse Corps officers nor wot11181l

E-23

24.

lin officers were covered by the “failure of selection” statute,

and the Secretary wa1 not authoriz d to establish promotion

zon • for women line officers. Act of Aug. 10, 1956, ah. 1401,

I 5776. 70A Stat. 361. Instead, women officers were eubject

to f orc d retirement after specified time perioda or at specified

ages, without regard to the number of time• they had been

eligible for promotion. Moreover, their promotional opportunities

were aeverely limited. Commander w 11 the highest

rank that aauld b occupied by a woman line officer, and th

number of women who could be prOQloted to comnander or lieuteoant

commander was limited by statute. In 1967 Congress removed

a lmoat all of th •• restrictions. Pub. L. 90-130, 81 St t.

~ …

The purpo•e of Pub. L. 90·130 was to authorize permanent

appointments of women to the rank of captain (Navy) and to

bring women’s promotions under th8 general •tandard~ that

governed men’s promotions. s. Rep. No. 676, 90th Cong., lat

Sass., at 2. The bill established the promotion zone system

for women and Nurse Corps officers and brought them under the

“failure of selection” con~ept. It is not et\tirely clear

from the legislative history why Congress did not go the full

distance and convert the 13•year “selection•out” period of

II 6396 and 6401 into a “twtce•fa:lled” provision. Both t

House and Senate ~ports acknowledge that the 13•year provi•

sion were being retained. noting that they “cloaely parallel

present provision• with respect to male of ficera •~capt that

the discharge of male officers probably occurs about 2 years

E-24

25.

earlier.” s. Rep. No. 676, supra, at 12; H. :a.p. No. 216.

90th Cong., lat Se••·• at 17. The only otlMar direct reference

to the 13•y .. r provision hints obliquely at the reaaon for

retaining it. ‘l1te House Report deecribea a severe crunch in

the Navy promotion lines:

A particularly sever problem of promotion

stagnation exists among WAVE offic rs in the Navy.

The present grad limitation on promotion of WAVE

officers to the grades of commander-lieutenant

commander have so r duced the vacancies that the

Navy will be foro d to di charge molt regular WAVE

11 utenanta when they reach their 13th ye r of

a rvice if r lief is not provided.

• • The Navy estimates that without legia …

lativ relief the attrition among women lin

lieutenants ;!11 average 50 percent or more over

the next 5 years. The Navy conaic:lers such heavy

attrition tmacceptable.

Rep. No. 216, supra, at 6. Unfortunately, it is not clear

that r taining the 13•year provision would have been expected

to eave more women lieutenant• than immediate adoption of •

“twice failed” system. No woman officer would have been considered

aa having twice failed until two years after the new

syatem ent into effect. It is poa ible that the line• for

promotion were o jamnad up that making room at the top would

not hav opened enough lieutenant conmandar poaiticna by th

aecond year. On the other hand, keepingtbhe 13-year system

would save the younger lieutenants from rapid attrition but

it Qould have forced out older lieutenant• pr maturely if

promotion• to lieutenant commander came too slowly.

E-25

26.

Despite this ambiguity, Congress probably thought retention

of the 13-year provision would be better than immediate adoption

of a twice-failed 1ystem, and it probably believed the Navy would

lose fewer women lieutenants over the short ruJt. The Department

of Def4Rl1e told the Armed Services conmitteea that it waa then

planning a major overhaul of the military officer promotion

systems. That plan is now pending in Congress as H.R. 12405,

93rd Cong., 2d Seas. The bill would establish an integrated

promotion system for male and female officers, making both

subject to discharge following the aecond failure of selection.

There ia one other difference between the program for

attrition of male lieutenants and that applicable to female

lieutenants. As in most other promotion categories for male

officers, the number of male lieutenants 11 limited by statute,

and the number of promotion opportUnitiaa for lieutenants

(j.g.) ia limited by the number of vacancies in the lieutenant

rank•. I S7S6. But the women’s selection board may recoD1Dend

all eligible lieutenants (j.g.) for promotion to lieutenant

without regard to vacancies. I S760(b). Consequently,

retaining male lieutenants for a 13-year tenure would force

increased attrition of ‘ lieutanants ~j.g.) under§ 6382(b),

which is identical to § 6382(a). Retaining women lieutenants.

on the other hand, would not be as likely to require whole•

sale discharge of lieutenants (j.g.) and instead might further

the Navy’s efforts to increase the number of women officar1.

E-26

27.

When seen in this context, Lt. Ballard’• claim of sex

discrimination is very w ak. First, the lines are not dr

solely on the baaia of sex. ty-1 ven female staff corps

lieut nants are aubject to the provision• of I 6’82(a);

v nty-six male Nurse Corpe lieutenants are given the advantage

of a 13-year tenure. Aa to lin lieutenanta, the category in

which there ie no croeaav r between the ay1te , it is clear

that the Navy i legitimately attempting to increase the numb r

Of WO • Thia program ia not invidiously di1criminatory.

ainoe its purpose is to overcome the ~ffects of past discrimination

against omen, both in recruiting and promotion. In thi

reep ct Ballard’• case parallel• Kahn v. Shevin.

~. —-

It is even stronger than !S!J!n v. Shevin in another r apect.

Lt. 8-llard ia complaining of only one aspect of a complex

system. He ia claiming for himself the one provision that

favor• f la lieut ants over male lieut81\ant1. In the context\.

of the entire system, he has not suffered discrimination. On

th contrary, he baa bean on the favored side in every other

respect. There ia no indication, out ide the integrated 1t ff

corp1, that male and female officer• compete for the same 1lot1.

Female officers ar atill ineligible for combat duty and moat

1 duty, I 6015, and would therefor be diaedvantaged in

head•to-head conipetition with le officer1. Con1equently,

the du 1 promotion 1ystem i~ itself justified by a legit t

gov rnmental interest, at least a• to an attack launched by

a male officer.

E-27

28.

The Louisiana Jury Cases

Article VII, § 41, of the Louisiana Constitution provide•

that “no woman shall be drawn for jury service unless she shall

have previously filed with the Clerk of the District Court a

written declaration of her desire to be subject to such service.”

Article 402 of the I.ouisiana Code of Criminal Procedure

implements this provision in criminal cases and until July 1972

La. Rev. Stat. 13:3055 implemented the constitutional exemption

in civil cases. The 1972 legislature repealed 13:3055 and

enacted a voluntary exemption for women with children under

16 and other women whose a.bsence from the home would cause

family hardship. A similar exemption was added to the code

of criminal procedure, but art. 402 was not repealed. Apparently

these statutory changes were designed to accompany a constitution•

amendment that would have re~ealed the women’s exemption, but

the constitutional referendum was defeated in the November 1972

election. The record suggests that the repeal of 13:3055 has

not affected the ”volunteers-only” system. .Appellees in

Edwe~ds v. Healy suggest that the special hardship exemptions

for women have been applied only to those who had already

volunteered for jury service.

In April 1974 the people of Louisiana approved a new

constitution. It does not contain any special exemptions for

women, but simply authorizes the Louisiana Supreme Court to

provide for juror exemptions by rule. The current draft of

E-28

‘

29.

juror rules makes no distinctions on the basis of sex. The

new constitution will take effect on January 1, 1975. No other

state has a ”volunteers-only” jury exemption for women like

that of the current Louisiana constitution.

Both Taylor and Edwards v. Healy arose in St. Tannnany

Parish, which, together with Washington Parish, comprises the

22nd Judicial District. Women constitute about 53 percent

of the population of the two parishes. In St. Tammany Pa.rish

women’s names are only 10 percent of the total in the jury

wheel. and during the twelve-month period from December 1971

to December 1972, only 13 of the 1850 persons drawn for petit

jury service were women. In Washington Pariah no more than

~·

two women have ever volunteered for jury service, and on only

one occasion has a woman been included in a petit jury venire.

Teylor v. Louisiana

Taylor was convicted of aggravated kidnapping in St.

Tannnany Parish in April 1972. The petit jury venire was all

male. Taylor moved to quash the venire on the ground that

it would violate his due process right to a. jury selected

from a cross-section of the community, but his motion was

denied. The trial court sentenced him to death, but Purman

Georgia was ~ounced whil his appeal was pending, and

the Louisiana Supreme Cour~ ordered the sentenced reduced

to life imprisonment. It rejected hie other claims, including

the challenge to the “volunteers-only” jury exemption for

women.

E-29

30.

Taylor argues on appeal that Hoyt v. Florida , 368 U.S.

57 (1961), should be overruled. He does not try to claim

special prejudice from the absence of women jurors; on the

contrary, his brief seems intent on hiding the facts of the

case. According to the Louisiana Supreme Court opinion, Taylor

forced his way into a car containing two women and a child.

Armed with a butcher knife, he made them drive to a deserted

spot, where he robbed them and raped one of the women. He

released them after they promised not to report the crime.

Edwar v Hee y

This case began as a class action for a declaratory

t.:~

judgment and injunction against the women’s jury exemption.

They attacked art. VII, § 41, of the state constitution, art •

402 of the code of criminal procedure, and 13:3055 (though it

had already been reμealed). There were to classes of plaintiffs:

(1) jury-eligible women in St. Tammany· ‘Parish who had never

been called to serve; and (2) jury-eligible men in St. Tammany

Parish. The women claimed that the exemption stigmatized

them, made it difficult for them to serve on juries, and

diminished the likelinood that they would have juries with

female representation if they should ever be involved in a

trial. The men claimed that they were doubly burdened with

jury service because women were exempted. The three-judge

district court did not rule on the standing of these two

classes, but indicated that their standing was doubtful

E-30

31.

because the two groups together represented almost the entire

body politic of the two parishes. The court granted standing

instead to a class of intervenors, represented by two women

who engaged in civil litigation in St. Tanunany and Washington

Parishes. And, having ruled that the intevenors could challenge

the exclusion of women from their soon-to-be-convened juries,

the district court proceeded to declare the exemption

unconstitutional in both civil and criud.nal litigation. It

held that the exemption denied equal protection to wo n

litigants and denied due process to all litigants. The court

held that Hoyt was no longer binding because it had been

undermined by ~ and Frontiero . Then it issued an injunction

A~–

in the names of all plaintiffs (but, curiously, omitting the

names of the intervenore) against the application of the

constitutional and statutory provisiOO:s. The judgment has

been stayed pending this appeal.

Feder 1 Law of Jury Exclu ion

The federal constitutional law of dttJry exclusion is

complex. There is, first of all, a limited use of equal

protection principles originating in Straud r v. West Virgi i ,

100 U.S. 303 (1879). Strauder was a Negro’s challenge to

his conviction under a Weit Virginia law that excluded Negroes

from juries. The Court held that trying Strauder before an

all-white jury violated the equal protection clause. The

Court reasoned that excluding prospective Nego jurors from

E-31

———-~—-

32.

participation in the administration of ju1tice resulted in

a denial of equal protection to Negro defendants. Because

white defendants would never be tried by a jury from which

members of their race were excluded, the Negro defendants

suffered a comparative disadvantage, stemming prilQ&rily from

the danger of racial prejudice. The Court noted two limitations

on its holding: (1) a defendant had no right to a jury com- ,

posed in whole or in part of persons of hie own race, but

only to a jury “selected and impanelled without discrimination

against his race or color, because of race or color”; and ‘ (2)

the fourteenth amendment does not prevent the •tat• from

prescribing juror qualifications such as gener, property ownership,

citizen1hip, age or education.

In Hernandez v. Texas, 347 u.s. 475 (1954), the Court

applied Strauder to the systematic excluaion of Mexican•

American•. Chief Justice Warren’s opinion for a unanimous

Court outlined a framework for the equal protection principle.

First, the defendant must be a member of the excluded class.

Second, the excluded class must be a distinct group that

1uffers community prejudice. Third, there 1111st be prima

facie evidence of systematic exclusion, In finding that

Mexican-Americans constituted a distinct, disadvantaged class,

the court swmnarized evidence in the record showing that

Mexican-Americana w re the victima of discrimination similar

to that suffered by Negroes.

E-32

33.

The equal protection principle has a much narrower scope

outside the area of racial and ethnic pr judice. In Fay v,

New York, 332 U.S. 261 (1947), involving New York’s uae of

”blue•ribbon” juries in difficult criminal cases, the Court

held that “(t]he inquiry under [the equal p~otection] clause

involve• defendant•’ standing before the law relative to

that of oth X”S accu1ed.” li· at 285. Since there wa1 no

evidence that blue-ribbon juries returned more guilty verdict•

than regular juriee, or that they were “organized to convict,”

the Court held there was no violation of equal protection.

‘:the due process limits on jury selection procedures are

no so well delineated. Before the sixth amendment wae applied

~.·,

to the 1tate1, the Court held that the right to jury trial

embodied the concept of the jury as a “body truly representative

of the conmmity.” Glasser v. United States, 315 U.S. 60, 85·86

(1942). Five years later in Fay v. New York. the court

con1picuou1ly applied a different standard to a state court

jury. Acknowledging that the fourteenth amendment did not

require jury trial in state criminal proceedings, the Court

held that if the state provided a jury. due process required

that it be “neutral,” th t is, the state could not use a

1y1tem of exclusions to impanel a jury before which defendant•

would have no chance of a decision on the evidence. Such a

proceeding would fall under the prohibition of “sham” trials,

332 U.S. at 288. Neither the excluaion of women nor the

disproportionate representation of working•claaa defendant•

E-33

34.

on the blue-ribbon jury was a violation of due process under

this atandard. Though it retained the rule that racial

exclusions were “presumptive constitutional violations,” it

held that other excluaions must be “such aa to deny a fair

trial before they can be labeled as unconetitutional.~ !!!•

at 293.

In~ v. Florida, 368 U.S. S1 {1961), the Court again

refrained from applying the croea-sectional principle as auch,

to state juries. Mrs. Hoyt waa convicted of killing her

philandering husband with a baseball bat. She appealed, 1

claiming that Florida’ a ”volunteers-only” system had resulted

in systematic exclusion of women from her jury. She clai•d

that women jurors would have been more sympathetic to her

defense of temporary insanity.

In an opinion by Justice Harlan, the Court formulated

a new standard for 1tate jury exclusions. Inatead of

delineating aeparate principles of equal protection 81\d due

process as in Fay v. New York, the Court spoke simply of the

fourteenth ll!Dendmant. Citing Hernandez v. Texaa and Fay v.

New York, the Court held that the fourteenth amendment requires

“that the jury be indiacriminately drawn from among those

eliglble in the community for jury service, untrammelled by

any arbitrary and 1y1tematic exclusions.” This principle was

not restricted to exclusions based on race or color, but

applied as well to “all other exclusions which ‘single out’

E-34

35.

any class of persona ‘for different treatment not based on

some reasonable classification.'” 386 U.S. at 59-60. The

Court held that an exemption could be the source of an

impermissible exclusion saying, ”Where, as here. an exemption

of a cl 11 in the community is sserted to be in substance

an exclusionary device, the relevant inquiry is whether the

exemption it1alf la based on some reasonable classification

and whether the manner in which it is exerci1able rests on

some rational found4tion.” Id. at 61.

It is not clear what constitutes a “reasonable” clasaifica•

tion, In federal ca1e1 1 the Court had held that the “general

principles underlying jury selection” prohibited excluding

a substantial portion of the cOIDDIUllity on grounds that were

irral vent to their capacity to serve on juries. Eligible

juror• could be excuaed only for 1ignificant hardship.

Thiel v. Southern Pacific Co., 328 U.S. 217, 223-24 (1946)

(exclusion of man working for a daily w ge). The Court had

also bald that the exclusion ~f women, where they were

eligible to serve violated the cross-sectional principle.

Ballard v. United St tea. 329 u.s. 187, 193•94 (1947) (Douglas.

J.). ;su~1both Thiel and B llard were federal cases, and the

Court r lied on federal statute• and its power to uperviae

federal courts. Justice Frankfurter, di11enting in Thiel,

suggested an outline of principles for jury selection. Trial

by jury presupp•••• a jury drawn from a pool representative

of the community and impartial in the specific case. Since

E-35

36.

race is unrelated to a person’s fitness aa a juror, Negroes

cannot be excluded solely because of race. But a group can

be exQluded for reaaona not relevant to their fitness if there

are ”competing coneid i:ations of public interest.” 328 u.s.

at 227. An early opinion by Justice Holmes had indicated that

a state could exclude certain occupational groups from jury

service if it believed that “it was for the good of the community

that their regular work should not be interi:upted.”

Rawlins v. Georgia, 201 U.S. 638, 640 (1906).

Although the use of terms like ‘.’arbitrary” and “reasonable”

suggeata that the atate•a exemption is to be judged on equal

protection standard•• Justice Harlan’s analysis in Hoyt seemed

1–<

to invoke the “good of the community0 standard. Because

“woman is still regarded as the center of home and family life,”

the Court held that the 1tate1 “acting in pursuit of the

general welfare, [could) conclude that a woman should be

relieved from the civic duty of jury service unless she heraelt

determines that such 1ervice is consistent with her own

special responaibilitie1.”‘ 368 U.S. at 62. The Court recognized

that Florida could have achieved this objective more narrowly

by exempting only those women with family reapon1ibilitie11

but held that the broad exemption was justified by the state’s

intere•t in avoidiitg the administrative burden of ruling on

each claim of exemption. -Id. at 63. The Court also concluded that the “volunteers-only” system was permiasible, either as

a means of fully effectuating the exemption by relieving women

E-36

37.

of the necessity of claiming it, or as a means of avoiding the

adminiatrative burden of processing individual claims of

exemption. Having decided that the exemption was based on

a reaaonable claseification, the Court held that the Constitution

wa• not of fended by the underrepresentation o.f woman in Florida’ a

jury pools.

Now that the Court hae held that the sixth amendment applies

to the atate11 Duncan v. Louisiana, 391 u.s. 145 (1968), there

i• preasure to hold that all the ”essential attributes” of

trial by jury in federal courts apply to the 1tatea. .§!.!.

Peters v. !!£!, 407 u.s. 493, 500 (1972) (opinion of Marshall,

J.) • The concept of a jury drawn from a croas-aection of the

community waa recognized aa fundamental in Glasser, and the

representative function of the jury was emphasized in Duncan.

-Id. at 156. The Court’• opinion in Williama v. Florida, 399

u.s. 78, 100 {1970)(White, 3.) 1 and Juatice White’• plurality

opinion in Apodaca v. Oregon, 406 U.S. 404, 412·413 (1972),

a110 sugg at that cro1a-sectional representation is fundamental

to the concept of jury trial. According to appelleea in

Edwards v. Healy, these recent developments require the Court

to overrule Hoyt and substitute Ballard in its place. But I

am not convinced that the Hoyt rule varies greatly from the

federal standard. Ballard reached a different re1ult1 but

it rests at least a• much on statutory grounds as on the

conclusion that an all-male jury pool is not a croea•eection

E-37

3.8.

of the conmunity. The Hoyt rule that a jury must be

indiscriminately drawn from those eligible in the conummity.

without any artibrary exclusions, could be read as an

alternative descriptiQn of the federal rule that a defendant

is entitled to a jury drawn from a cross•aectional pool, with

the addition of a rule allowing exemptions on competing considerations

of public interest. If Hoyt’s “reasonableness”

standard is read to coincide with the “public intereat”

tandard for exemptions, the difference between the two i1

18 .

slight. Nonetheless, Duncan and its progeny bring the

~problem into sharp relief. The reasonableness of a

state’s decision to protect its women from jury service must

J’

be judged in light of a criminal defendant•• right to a jury

drawn from a representative pool. Ballard’ s declaration that

the sexes are not fungible is a strong statement of the interest

that opposes the state’s concern for women. The major short•

coming of Hoyt is that it dismisses the defendant’s interest

too easily.

In the interest of keeping legal principles clear, I think

it is important to avoid the concept of standing in the due

process casea. The issue is not whether a male defendant

has standing to raise the omen’s claim that they are

discriminatorily excluded from juries. (Justice Marshall’s

opinion in Peters v. fil!, 407 u.s. 493 (1972), not:withstanding).

It is whether a defendant. male or femal • has a due process

right to a jury selected without systematic exclusion of o •

E-38

39.

Sex diacrilllination principles do not govern. the resolution

of the question, unless the “reasonabl sa” concept of !!!XS

ia held coextensive with equal protection analysis. The

question is not rely whether th re is a legitimate state

int•X”••t 1n xempting omen from jury duty, but whether that

interest is strong enough to juatify giving defendants a jury

that does not represent a cross-section of the community. To

that extent, the equal protection may be in1tructiva. Th

reasonableness of the xemption may depend on whether the

exemption ia irrationally overinclua~ve, or whether it ia

baaed on unsupported generalizations about women’ behavior.

Louisiana as erts only one interest in support of the

broad ex mption for women: “the state interest in the gen ral

welfare of its citizena and women as th center of home aad

family life.” State’s brief (Taylor) at 6. It contends that

the jury exemption is part of an attempt “to regulate and

provide stability to the state’s own idea of i amtly life.”

!!!· at 12. The state doe not suggest how jury service ia

incon i1tent with family stability or wo n’s family

reaponaibilitiea. Taylor and th• appelleea in Edw rds v.

H aly offer statistics to indicate that the state’s all-inclusive

exemption ia irrationally ovet’inclusive. If the state’s concem

is for mothers, it ha• ov rlooked the fact that S9 percent of

its adult female populati~ have no children under the age of

By the time of decision in Edw rds, Louisiana had alr dy

provided a special exemption for mothers of children under 16.

E-39

40.

That would surely cover any concern that children would be left

untended while their mothers served on jut:ie1. The state baa

also ignored the fact that of those women who do have children

under 18• over a third are in the labor force rather than at

home. Appellant’s brief ( lor) at 9. Moreover, the

”volunteers-only” ayatem may aggravate the overincluaiveneas

of the classification. If the state called o n for jury

service but allowed them to claim an exemption after being

called, it would probably get more wo en jurors than the mall

number. who think to volunteer.

The exemption might also be found unreasonable because

it l grounded on an overbroad generalization about women’

lifestyles.

based on assumptions about women • in ~ that they had le s

busine a experience than men, and ‘in Frontiero that they did

ttot have dependent husbands. Both assumptions would probably

hav accorded with atatiatical fact, but neither was held

adequate to sUpport a law that disadvantaged WOllrten. Strictly

speaking, this as ct of !!..J! and Frontiero does not apply

to jury exemption cases, there is no disadvantage to the

who choose not to volunteer for jury service, but the

n w suspicion of generalit:ationa about wo

~ and Frontiero have one other impact on lJoyt. The

.l2n. Court held that the br adth of the exemption and the

choice of a ”volunteers-only” system could be justified by

E-40

41.

the state• desire to avoid the administrative burdens of

either a “family responsibilities” exemption or a system that

required women to claim their exemptions individually. ed

and Frontiero have circumscribed the impact of admini•trativ

inconvenience in discrimination ca1ea1 and they are persuasive

here. Beeidea, Loui iana disclaims reliance on administrative

convenience. State’• brief (Taylor) at 11-12. There is also

suggestion that requiring women to claim an exemption when

having to cull their na a out of the lists that are u ad a

ource for jurors.

If the Court overrule• !J.2Il, in the context of Louisiana’

”volunteers-only” syatem, the deciaion will cast doubt on

the “opt•out” eyate used in five or six states, including

Virginia. nies atatea give wtime\il an absolute exemption ‘but

th m to claim it individually. Since the major fault of th

“volunteers-only” ayatem 11 it overincluaiv n sa with re1p ct

to the atat•’• interests, the “opt-out” states should prob bly

fare no better. Still, if ·the “opti-e>ut” sy tem produces a

higher proportion of women on jury venirea, it could be up ld

on the ground that th exemption does not cause substantial

exclusion of women. Thia is simply the converse of Hoyt’s

holding that an exemption would be invalid if it caused al\

unreasonable or arbitrary exclusion.

E-41

42.

Pr1bleme Raised by These case

overruling Hoyt would raise a serious practical probl m

in criminal cases, It 1• likely, if not certain. that every

inmate of the Louiaiana prisons waa convicted by a jury choaen

from a venir• compoaed almost entirely of males. It would

be unthinkable to make Louisiana retry them all. The state

should be allowed to rely on decisions aa ~•cent as !!!%£•

rhere are at least two methods of keeping the pri on doors

shut: requiring a suggestion of prejudic in individual cases,

or ruling that the decision will not’be given retroactive

effect.

The first alt rnative has the advantage of letting the

Court affirm Taylor’• conviction, since Taylor’s brief make•

no claim of special prejudice. There are seeds of such a

requirement in the caa • involving nonracial jury excluaione,

in particular, FaJ: v. New York. There the Court hinted that

the exclusion of working•claaa jurors, even if unreasonable,

would not require reversal.unless it could have affected

the outcome of the case. 332 u.s. at 292·93. The Court

distinguished the raci•l cases, in which it had never

requir d a showing of pr judice, on two ground1: first,

a federal statute prohibited jury exclusions on account of

race, and aecond, thsr is no reason to assume the existence

of hoatility betw en other ‘claaeea of juror• and defendants.

Both of these distinctions are still valid, and a “possible

E-42

43.

prejudice” rule could be applied in cases of nonracial exclu•ion

without affecting the .2!I. !!. rule in racial cases.

The major drawback of using a “possible prejudice” rule

to limit the effect of overruling Hoyt 1• the danger of

precipitating hundreds of federal habeaa petitions. It 11

not clear that failure to jbect to the venire would constitute

a federal waiver under Fay v. !21!.• If it does not, the federal

courts would have to make a factual inquiry in every case.

The other alternative, nonretroac,tiv,ity, would leave

untouched all convictions except Taylor’s. To my surprise,

1 found persuaaive precedent for a nonretroactive rule.

In Destefano v. Woods, 392 U.S. 631 (1968), the Court held

that an v. Louisiana and Bloom v. Illinois were not

retroactive. The ruling on Bloom is almost directly analogou

to the Louisiana case. Even though a nonrepre1entative jury

may be thought to have an effect on the integrity of the

factfinding process, the use of a “volunteers-only” exemption

for women was firmly established in law, and invalidating all

conviction• under the former practice would have substantial

adverse effects on the administration of justice. See ~.

at 634-35.

Ed rds v. Healy raise• two substanti 1 Questions that

do not appear in Taylor: (1) whether Strauder’s equal protection

principle should be applied to women, and (2) whether due

process governs the composition of juries in civil cases. It

may be possible to avoid both Queetions on mootne1s grounds.

E-43

44.

The new constitution will take effect on January 1. The

state supreme court has proposed jury exemption rules that

make no gender distinctions. Unle11 it change• those rules

before final adoption, this case will be moot as of January l.

The Court could either hold the case until then or give it

an ticipatory dismissal, as in DeFunis v. Odegaard, 94 S.Ct.

1704 (1974), when the Supreme Court•s rules are finalized .

The equal protection rationale of S,trauder and progeny

holds the moat promise for civil cases, since it does not

require due process supervision over state civil juri 1.

’11\e Court has already held, a.lbeit obliqUely, that racial

:,I.

exclusion is invalid in both civil and criminal ‘arias. The

Court has already held, albeit obliquely, that racial

exclusion is invalid in both civil and criminal juries.

Jury Commi sion of Greep.a Count)!’, 396 .U.S. 320 (1970).

carter

The r~.cionale of Strauder – comparing the poaition of Negro

litigants to that of white litigants – would apply to civil

cases as well as criminal, ·and there is no reason to suppose

that the potential for racial prejudice is diminished, although

it• conseouences are leas severe.

The only equal protection claim involved in the Edwards

appeal is that of the women litigants . Appelleea have not

pressed their earlier contention that the “volunteers-only”

system denies all women an equal opportunity to participate

in the administration of justice. The contention had no

merit; since any woman may participate equally by volunteering,

E-44

45.

no woman is excluded from jury service. Their claim that

the burden of volunteering waa itself a denial of equal

protection is also weak. Apparently all that is required ii

a letter to the court clerk. If the burden were subatanti,al,

such as a requirement that the woman appear in person to

volunteer, it might constitute a denial of equal protection.

But no such claim is made on appeal. Appellees have also

abandoned the contention that men are doubl’ burdened with jury

service because women are excluded.

An uncritical eye could find parallels between racial

exclusion and exclusion of women, and Hernandez supplies a

ready framework. But wo en are not quite as disfavored as

Negroes or Mexican-Americans, and there is less reason to

presume that male jurors will be harsher to female litigant&

than to male litigants. ~11 appellees offer in support of

their contention is a study that showed juries composed

predominantly of one sex tended to give larger judgments to

litigants of their own sex.. This is too weak to support a

Strauder extension.

The three-judge court glossed over the due process problem.

It held:

Similarly, it is unnecessary to e arch the

limits of th Constitution for a right to jury trial

in civil cases. “Once the State choo e to provide

grand and ‘Petit juries, whether or not con titutionally

reouir d to do so, it must hew to feder 1 constituti al

crit ria in ensuring that th selection of member hip

is free from racial bias,” Carter v. Jury Co isaion

of Greene County, 1970, 396 U.S. 320, 330, ••• and,

we add, every other type of unc stitutional

discrimination.

E-45

46.

This Court had adhered to its early cases holding that

the seventh amendment does not require juries in •tate civil

trials. Chicago, R.I. & P. Ry. v. £2!!_, 251 U.S. 54 (1919);

Walker v. Sauvinet, 92 U.S. 90 (1875). It is no solution to

say that if a state chooses to provide juries in civil ca1ea

it must follow federal standards governing their composition.

’11\e issue, as I see it, is whether due process limits the

composition of civil juries.

Although this Court has held that the right to jury trial

in criminal cases encompaaaes the right to a jury drawn from

a representative pool, Glasser v. United State ; 315 U,S. 60,

85-86 (1942), it has not en1hrined the ·ame principle as a

constitutional limit on civil jury trial. In ’11\iel v. Southern

Pacific Co., 328 u.s. 217 (1946), the Court reversed a civil

judglQ&nt because daily wage earners had been left off the jury

liata. Although it declared that the “American tradition of

trial by jury, considered in connection with either criminal

or civil proceedings, neceasarily contemplates an impartial

jury drawn from a cross-section of the community,” and spoke

of “the democratic ideals of trial by jury,” _M. at 220, the

Court baaed its holding on federal statutes and its “power

of supervision over the administration of justice in the

federal courts,” 14. at 225, rather than the seventh amendment.

But even if the requirement of a croaa-sectional jury is

considered a fund ntal part of the seventh amendment, it

would not follow that due process requires the same in state

E-46

—————– –

47.

civil cases. The function of the jury in criminal cases, aa

outlined in Duncan v. Louisiana, 391 U.S. 145 1 155-56 (1968),

ia “to prevent oppression by the Goverl’ID8nt.” But in most

civil cases the jury is simply a mechanism for settling

private di1putes. Due process would probably require an

impartial jury, just as it requires an impartial factfinder

in many state administrative proceedings, Goldberg v. Kelly,

397 U.S. 254, 271 (1970), but impartiality in this context

.probably means nothing more than an absence of actual bias

or prior involvement in the in the c~se. The requirement

of cross-sectional representation is not essential for

impartiality.

Recommendations

In Schlesinger v. Ballard, I would reverse the ground

that § 6401, in the context of the entire promotion system,

does not discriminate against male lieutenants.

In Taylor v. Louisiana I would overrule ~ v. Florida

on the ground that Duncan requires closer attention to the

principle of cross-sectional representation in state criminal

cases, and that, by analogy, recent cases on sex discrimina•

tion render the exemption irrationally overinclusive in light

of the state’s claimed interest. I would include in the

opinion a strong suggestion that the case will be applied

only to trials occurring after the date of decision.

E-47

48.

In Edwards v. Healy I would hold the case until the n.ew

jury rules are finalized. Then I would vacate the judgment

and remand for dismissal on ground of mootnesa, thus avoiding

the constitutional questions.

E-48

FOOTNOTES

Gunther. Foreword: In Search of Evolv ng Doctrin on

Changing Court: A Model for a New r Equal Protection, 86

Harv. L. Rev. 1 (1972). .@!.!. !1!.q_ Getman, Th Emerging Constitutional

Principl of Sexual Equality, 1972 Sup. Ct, Rev.

1.57. 162-63.

Fronti ro v. Richardson, 411 u.s. 677 (1971) (opinion

of Brennan, J.).

!•&•, GetJnan., supra.
!!_.. Note, S x Discr.imination and Egu 1 Protection: Do

We Need a Constitutional Amendm t?, 84 Harv. L. Rev, 14991

1507-08 (1971). Unlike sev ral other articles, this one

I ‘·

acknowledges that the pa~allel is not perfect •

.5. One of the bast statements of this view appears in

Profe aor ‘Kanowitz’• book:

Not only do 1 gal norms tend to mirror the eocial

norms th t gov rn male-femal relationships; th y

1 o exert a profound inf lu ce upon th develop•

ment and change of those social norms. Rule of

law treat of the sexes ~er se inevitably produce

inevitably produce far- aClifng effects upon social

psychologic 1 and economic spect of male•fe le

relationships b yond the limited confines of legislative

chambers and courtrooms. A long

organiz d legal B!St ms, at one the most respect d

and most feared of social institutions, continu

to differ ti t shat”Ply, iu treatment or in words,

b tween men and cm the b sis of 1 lev t and

artificially er at d distinctions. the likelihood

of men and w coming to regard on another

primarily s fellow human beings and only secondarily

as repres tativee of another sex will contin to

be r mote.

Kanowitz, Wo

4 (1969).

and the Law: The Unfinished Revolution

E-49

This Utah law, ha• now been repealed. Twenty-five

pOUnda may be the 1 st weight•lifting limit now extant.

Ohio Rev. Code I 4107.43 (1974).

7 • .§.•&•• Ohio R.eV. Code§ 4107.46 (1974). This statute

prohibits hiring women to work more than 48 hours p r week,

or 8 hours JHlr day, or 6 day1 r week. There are a number

of exceptions listed, including profe atonal peettiona.

may work in moi:”e than one jiob , but only if the aggregate hours

of work do not exceed 8 per day or 48 per k.

Again, Ohio ie tha chief vil,.ain. Women may not work

in any of the following jobs: crossing watchman, section d,

bell hop, night-time taxi driver, or metei: r ader. They may

not be employed in blast furnaces, 1melter1, mine• or quarries

(except as office work rs), in shoeahine parlor•, or in

drinking eatabli1 ta with excluaively male customers.

’11ley may not work in delivery aervice,on vehicles over 1 ton

capacity, or on freight or baggage elev tors that do not hav

automatic doors. They may not be employed for b ggage handling,

freight handling1 or handliUg heavy materials with hand twcka.

Ohio Rev. Code § 4107.43 (1974).

29 C.F.R. I 1604.2(b) (1973). The EEOC takes th

position that state protective laws cannot be used 88 a d f •

to an otherwise established unl w.ful mployment practice, or

81 a basis for a bona fide occupational qualification. Court•

hav followed this ruling. !•&•, Ros fre1d v. Southern P cific

!t•• 444 F.2d 1219 (9th Cir. 197ll.

E-50

These four staff corps are the Medical Corps, the

Dental Corps. JAG. and the Medical Service Corpe. The difference

between these and other staff corps in that women may be appointed

directly into these corps. 10 u.s.c. I§ SS74, SS78 1 SS78a 1

Other staff corps nominally exclude women. I§ SS7S,

5576, 5577, but the general statute authorizing women officer

appointments authorizes indirect appointments of women, I 5590.

All women who are appointed under 115590 are placed in a

promotion line for female officers only.

Exec. Order No, 11,437 3 C.R.F. 754 (Supp, 1967-1970).
I.e., the four “int•grated” staff corps listed in

note 10, supra.

Congress provided for this problem in the Nurse

Corps by allowing delay of diecharge under a “twtce … failed”

standard. It is unclear why a similar provision could not

have taken care of the problem with women line officers.

Women lieutenants (j.g.) are forced out after 7

years • § 6402 •

lS. St. Tammany and Washington Parished are in the

“toe” of the Louisiana ”boot,” north of Lake Pontchartrain.

Slidell and Bogalusa are the largest towns in the two

parishes.

Actually the narrow holding was that Strauder was

entitled to remove his prosecution to the federal courta

under a statute that authorized removal by a person who

could not enforce any right secured to him.by a law providing

E-51

for “equal civil rights.” As a preliminary atep of the analy1ia,

the Court held that excluding Negroes from jury service was a

denial of equal protection to Negro defendants.

For instance, the Court noted that Mexican.•Americans

had be n placed in segregated schoola, that at least one

restaurant in town displayed a sign that said “No Mexican•

Served,” and that Maxican•Americansparticipation in busin se

and conmunity affairs was alight. 347 u.s. at 479-80.

Federal juror exemption• are governed by 28 u.s.c.

I 1863 (b) (6). Local jury plans may exempt “groups of per•ona

or occupational claaaea” only on the ground ”that their

exemption is in the public interest.” At a minimum, the plan

must provide exemptions for member• of the Armed Forces,

member• of fbe and police departments, and “public officers”

of federal and state government. Section 1863(b)(S) requires

jury plane also to specify groups or class• whose members

ull be excused from s•rvice, on individual request, on grounds

of undue hard1hip or extreme inconvenience.

The state bas furnished the Court a transcript of

the debates over jury exemptions at its recent constitutional

convet’ltion. Delegate A. Landry explained the current system:

Now in order to secur jurors, it ts nece sary

for the jury commie ioner to get up a list of

individuals and it is usually selected, not

select d, but it is taken from telephone books,

from lists of high chools giving the list of aames

of person who have reached the age of eighteen.

You have to take it from the city directories,

You have to take a list fr01111, in my pariah, from

E-52

the water district, which is all the water meters

in the parish, and also all of the register d voter

of th p rish, which means you have approximately

fift en to twenty thousand names in the large hopper.

You cannot sep rate th women from the men and then,

when you dr w a criminal jury, you must draw them at

random. In my p rish, I us the capsul type of

drawing where the jury commission rs do not even

know what name they are drmdng. Only 1 st week,

in ord r to suppl ment the jury venir list, we

had to draw av r fourteen hundr d names to put in

1ix hundr d and fifty namea in th jury venire

list, because women kept cropping up.

The i1aue is whether the Fay v. !21!, “intentional

relinquishment of a known right” standard should apply to a

claim that could have been raised but would have been futile

at the time. This Court haa never decided what waiver

standard applies to a defendant’s collateral attack on a

!!’··

conviction (not a guilty plea) on the ground of racial exclusion

from his grand jury. Tollett v. H. Jenderson, 411 U.S. 258, 260

1 (197~); Parker v. North Carolina, 397 u.s. 790,, 798-99

(1970). Circuit court• that apply the “intentional relinquish•

ment” standard to racial cases have held that failure to

object to the vanire or the grand jury is not an automatic

waiver. McNeil v. North Carolina, 368 F.2d 313 (4th Cir.

1966′; Labat,’tv. Bennett, 365 F.2d 698 (Sth Cir. 1966). That

reasoning would apply !. fortiori to a right• unknown to anyone

at the time of conviction, to a jury selected without exclusion.

of women. The he~rt of the dilem:na is ratroactivity.

E-53

391 u.s. 194 (1968).
Unless, that is, the Court accept• the appeal in

Batas v. Edwards (motion for docketing to be diacuaaed at

October 7 Conference) in which several Louisiana citizen•

claim that the constitutional convention violated Baker v •

..Q.!!!:. because the governor appointed 27 at-large delegates

out of a total of 132. The other 105 delegates were elected

by the voters in established atate legislative districts.

Carter was a declaratory judgment auit brought by

jury•eligible Negroes who complained that they had been

systematically excluded from jury lists. The Court allowed

their suit, without diatinguishing between civil and criminal

juries. 396 u.s. at 329-30.

Appellee1u~dercut even this contention by suggesting

that male juror• tend to favor attractive young female litigants.

Appall•••’ brief at 17. There is good rea1on to suppose that

the opposite would also obtain: some women jurors might be

unduly harsh or attractive young female litigants. The

atereotype of the jealous woman is not entirely fallacious.

E-54

pe/sa 11/1/74

TO:

ROM:

BENCH MEMO

Mr. Justice Powell

Penny Clark

DATE: November 1, 1974

No. 73·12.56 Connell Con1truction co. v.

Plumbers Local 100

Thie is a complex labor•antitrust case with two i11ue1:

(1) whether a hot-cargo contract between Local 100 and Connell

ia entitled to immunity from federal antitrust laws, and (2)

wheth r state antitrust law is preempted.

The events underlying this case occurred in 1970sand

1971 in Dallas. Local 100 had a collective bargaining agree•

ment with a multiemployer unit, the Mechanical Conctractors .

Aa1 1n, setting uniform wages for all members of the aaaoci tion

and binding the union to impose the same wage terms on any

other contractor with which it obtained a contract. There

were a large number of mechanical contractors in the Dallas

area that did not have bargaining agreements with Local 100.

As a part of it1 campaign to organize these subcontractor •

Local 100 approached a number of general contractors and a1ked

them for an agreement that they would subcontract work only

to those mechanical contractors that had collective bargaining

ag~eementa with Local 100. Connell refused to 1ign, and Local

100 sent a lone picket to one of its construction projects.

About 150 work rs walked off the job.

F-1

– —- –

————~–~

Connell filed a suit in Texa• court, alleging a violation

of Texas antitrust law and asking for injunctive relief. Local,

100 removed the case to federal court. and COnnell’• motion to

remand was denied, Connell then sign d the agreement under

prot st. The caee was tried on the merits. though there is

little or no dispute over the facts, and Judge Sara Hughes

gra ted Local 100 a declaratory judgment (on its counterclaim)

that the contract with Connell was legal under § 8(e) of the

NLRA and that it violated neither federal nor state antitru1t

laws. CA5 (Morgan and Ingraham) affirmed over Judge Clark’s

dissent. Connell brought the case here.

FEDERAL ANTITRUST LAW

There are three theories on which Local 100 could be held

to forfeit its labor exemption from the antitrust laws:

(1) That a labor union has no antitrust immunity

for activities that are illegal under the laws governing

labor relation • This ts the position Judge Clark took

in his dissent. lt would require the Court to decide

whether the agr ement with Connell violated § 8(e) of

the NLRA.

(2) That the subcontracting agreement ie not entitled

to the labor exemption under Justice White’s analysis in

tJMW v. Pennington, 318 U.S. 657 (1969) (opinion for the

Cour~, and Meat CUtters Local 189 v, Jewel Tea Co •• 381

676 (1965) (opinion for three Justices).

F-2

(3) That Local .100 waa not entitled to antitrust

immunity becau1e forcing Carmell to sign the subcontracting

agre t wa• part of a conspiracy with unionized sub•

contractor• to limiaate competition from nonunion

1ubcontractora.

Judge Cl rk’ s Th on

Two reasons are advanced for holding the ubcontraating

agreement invalid under 8(e): (1) Connell has no bargaining

relationship with Local 100, and the 8(e) proviso for the

construction industry was intended only to authorize hot cargo

agreeimt\ts betweetf!’Parties who have an obligation to bargain

with each other; and (2) picketing to obtain hot cargo agree•

ment is illegal under § 8(b)(4)(B). The Board and several

courts of appeals have decided the latter question iii the union’s

favor, holding that picketing to obtain a legal 8(e) agre ent

ia l egal despite the general prohibition of secondary picketing.

To my knowledge there is no contrary authority. On the fir•t

point, there is no direct NLRB precedent. The General Coun al

ha1 refused to issue complaints on the queetion, interpreting

the Board’s decisions on other questions to authorize sub•

contracting agreements b tween unions and contracts that do

not stand in a proximate empl oyer-employee relationship.

Becau1e of the General C0U111el’1 default on the issue, the

amici urg this Court to hold 1uch agreement• unlawful und r

8(e) and 8(b)(4)(B). They also aak the Court to diaapp~ove

F-3

the exi•tillg preo dent and hold that a union may not pick t

to obtain a lawful 8(e) agreement. I think it i• unnecessary

to decide the•• question• because Judge Clark’s view of the

antitrust exemption ia untenable in this context.

The legislative hietory of Taft-Hartley strongly indicates

that Conaresa intended to give Ullion1 complete antitruat immunity

for aeoondary activities. The Hartley bill1 which paaeed the

Hou e, included a provision that would have repealed antitrust·

illlmlnity for secondary activities of all types. The Hartley

bill ould alao have codified this Court’s Allen ~radley decision,

which held that union• are subject to antitrust laws when they

join in a classical antitrust conspiracy among employera.

Allen Bradley Co. v. IBEW Local 3, 325 u.s. 797 (1945). The

Senate bill contained no antitrust provision, but Senator Ball

introduced an amendment similar to the House bill’s antitrust

section. After extensive debate the Ball amendment wa1 def ated.

t..tHi6~S

Senator Taft then offered a compromise amendment to makeAliable

for actual damages wheneve~ they engage in illegal secondary

activities. Taft’s amendment was approved by a handy ipa.jority.

In conference the House agreed to drop its antitruat rem dy,

with its treble damages, injunctions. and criminal penalties,

and to accept the Senate’s actual•damagee remedy in1tead.

Section 303 of the Taft-Hartley Act was the compromise.

There is some ambiguity in the legialative hietory. The

focus of the deb te on antitE’Uat liability was the spect r

of a retum to “govemment by injunction,” the judicial abuses

F-4

.5.

that had prompted the Norri1•LaGuardia Act. The Ball amen t

would hav limit•d th Norri •L Guardia Act’ role in prohibiting

injunction• against labor activities under the antitrust 1 w •

The House bill would have 1u1pended Norris•LaGuardia al togebhe~

in antitrust actions. Still, the rejection of the antitrust

proposals i1 strong evidence that Congress compromieed on an

actual-damages remedy, rejecting the possibility of treble

damages and criminal penalties, as well as injunctions, for

a11 violations of the secondary-boycott provisions.

If the subcontracting agreement with Connell is illegal

for either of the reasons suggested, the evidence will establish

a violation of 8 (b) (4). If the agreement does not come within

the construction industry prtviso because Connell and Local

100 have no bargaining relationship, Local 100 ~as violated

8(b)(4)(A) by picketing to obtain an agreement that is prohibited

by 8(e), or alternatively, has violated 8(b)(4)(B) by forcing

Connell to “cease doing business” with nonunion subcontractor •

If picketing to obtain a lawful 8(e) agreement is illegal, itl

illegality stems from 8(b)(4)(B). In either case, Local 100

would be liable to Connell for actual damages under § 303.

~o’f’irie&~

But sine Connell neither pleaded a violation ofC :I 303 -M!i~~~

a’5e. OV\ 4″.<Jt~”‘~’ -tk ,·ssu.a,. of § 303 \ ia’1ilH~

A :l not b fore the Co t.

There is a strong practical reaaon to read the legislative

history as I auggest. Secondary boycotts were restraints of

trade at common law. They were among the first practices to

be outlawed under the Sherman Act. !•&•, Lo w v. La lor,

F-5

208 u.s. 274 (1908) (the Danbuiry Hatters caae). Congress

act d a clear ex mption for them in the Norris•LaGuardia

Act, and although the Supreme Court’s acqui aaence wa1 both

reluctant and late, it was complete. _s..;..;…….-…;;,;;;;;;,,,;;o–……-…-…-..–..-.

Hutch eon, 312 u.s. 219 (1941). When Congress set out to

r gulate secondary boycotts, it did not return to the readily

Ac.t

av ilable Sh rmanAr dy but enacted S 8(b)(4) of the NLRA,

defining illegal activities with more care than it had ev r

done under the antitrust laws, and entrusting their enforc t

to the NLRB. ‘l11e law governing secondary boycotts is highly

technical. It would be undesirable to enforce it through the

)’luni:tiv.e remedies of the Sherman and Clayton Acts, when

Congress has provided a specific remedy in I 303.

Justice Whit ‘s Theo!Y

In Pennington and Jewel Tea Justice White outlined a

fairly complex theory of labor immunity, Writing for the Court

in Pepnington, he said that the complete inmmity conferred

by the Clayton and Norria-LaGuardia Acts applies only when

unions act alone. It does not apply to “arrangamettts or agreements

between unions and employers.” 381 u.s. t 661•62.

#JZ. ~road. i~ l•’c-.;..s of

As to the holding in Penningtan, Athi stat t dictum.

Pennington could have been decided under the precedent of

All n Br dley, for there was evidence that the UMW had conspired

with the coal operators aaeociation to eliminate marg4lnal

operators from the industry, limit production, and preempt the

F-6

market for the conapir&tora. Justice White’• opinion for himself

and two other Justices (including Justice Brennan) in

J wel Tea 1ugge1t1 that he con.aiders any contract between a

union and a nonlabor party • including an ordinary single•

employer collective bargaining agreement – out ide the scope

of Clayton and Norris•LaGuardia immunity. To such agreement•

he applies a “balancing” analy is, comparing the anticompetitive

effect on the product market with the legitimate interests of

union members under the labor laws. The agreements may y t be

exempt from antitrust laws if the labor interests prevail, but

thi1 im:nunity derives from judicial doctrine instead of atatute1.

It is possible that Justice White would apply this balancing

analysis to Local lOO’s subcontracting agreement, even if ha

accepted my analysis of the Taft-Hartley legislative history,

by confining the implied exemption for secondary activitiea

to union actions t en without employer participation or agreement.

If so, the factors that would ateer his analysis are

as follows: (1) how strongly the agreement implicates national

labor policy, including whether it involves a compulaory subject

of bargaining, whether the agreement is consistent with the

union’• obligation to its memh•r•. and whether the labor 1 wa

protect or encourage the agreement; (2) how strongly tha

agreement violate antitrust policy, including whether the

employ r ie primarily interested in hi• competitive poaition

rather than his labor relations, whether th• agr emant ha

1t’l’ong • ticompetitive potential, and whether the union h

F-7

aut’r”endered its freedom of action with respect to its bargaining

policy.

In the context of this case, it would be highly relevant

that th agreement between Local 100 ad COnnell, even if not

prohibited by I 8( ), i1 not within a traditional bargaining

relationship, and that Local 100 made no pretense of

repreeenting Connell’• employee•. Still, the agreement i1

related to the union’s traditional concern of preserving work

for it1 members. If Local lOOoperates a hiring hall, and 1

presume that it does although the record is not clear, ita

member would be vitally interested in getting more jobs for

unionized subcontractors. The agreement With Connell would

also aid Local 100 in its efforts to organize other subcontractors.

Again, if there is a hiring hall, the union

members would benefit directly from an increase in the number

of unionized contractors. If there is no hiring ball, the

union members would still benefit from unionization of other

subcontractors, because their. employers would face less

competition from subcontractors who pay low wages. Their

employers would have a better position in competitive bidding,

and the employees would benefit from the lax-ger number of jobs,

The1e are the con iderations that the CA5 majority found to

be “legitimate \.D\ion intere•ta.”

The subjectivity of thi• analysis illustrate• the dang r

of Justice Whit•’• approach. In almost every case, the union’s

antitrust immunity will depend on the predilections of the

F-8

judges that decide the case. As one notawriter put it,

Thia balancing act would seem to return the 1tatua

of 1 bor ‘ s exemption to the days of the Dupl x case

[Du2lex Printin~ Pres Co . v. De ring, 254 u.s. 443

(19 1)], durlngld\lch Judici 1 notions of th paop r

balance in the industrial struggle wer determinative

of 1 bor1e antitrust liability. This practic w

condemn d in Hutch son, wher in the Court found that

Congress had aeffned labor interest and th r by

xclud d any ubstitution of judicial policy

jud t cone ming union purpo e •

It would be difficult for a union to determine in advance whether

a contemplated agreement could lead to treble damages under

the antitrust laws.

If the balancing approach must be faced, 1 would recommend

some hard thinking to come up with a more concrete approach to

the labor exemption. After only preliminary thinking, I am

inclined to favor a return to the Allen Bradley approach: a

union is statutorily exempt unless it has entered a traditional

antitrust conspiracy among employers, that is, a conspiracy

with an object of fixing prices, dividing markets, excluding

competitors, or the like/ Since the allegations in Pennipgton

fit thi1 mold, it would be possible to establish such a rule

without overruling any cases.

F-9

10.

e Conspiracy

The -‘1t«A oK of All me to the narrowest

ground for deciding thi• case: Local lOO’a participation in a

claaeical ntit~at conspiracy among the members of the multiemploy

r bargaining unit.

Connell tried this ca e below on the theory that the

t~me1t favoX”ed nations” clause in the multiemployer agreement

established a ~,ima facie case of conspiracy. Local 100 had

agreed, contrary to the usual behavior of unions, that it

would not sign up any new subcon•ractors at a wage structure

different from that in the multiemployer contract. The only

conceivable purpose of the agreement would be the elimination

of competition among union con• tractors, including those outside

the multiemployer unit, Reduction of competition based on wage

level ‘# among parties to a multiemployer agreement is tolerated,

but no labor policy allows o~ encourages the multiemployer unit

to prescribe wages for other bargaining units. Local lOO’s

attempts to from general

alleged conspiracy.

The union subcontractors would benefit from the partial

elimination of competition. Any succea that Local 100 ha•

in getting “exclusive dealing” agreements froni general

contractors would increase the number of jobs available to

unionized subcontractors. And aucceaa in organizing eubeontracto1

would reduce competition baaed on low ‘?tfage scales.

F-10

11.

The DC did not rule on the conapiracy issue. Judge

Hughe• did not reach the issue because she held the 1ubcontractin1

‘ agreement legal under 8(e), and therefore automatically exempt

from the antitrust laws. The CAS majority held that no such

conspiracy was established, taking an unjustifiably narrow

view of the kind of conspiracy that would invoke the Allen

Bradley rule.

The CAS majority ignored the multiemployer agreement

altogether. It emphasized that the complaint alleged no

conspiracy betweeen Local 100 and the unionized subeontractors.

Then it said that the proof at trial alluded to no such

conspiracy, auotiff~ from the· testimony of Connell’s president.

H was asked if he had any evidence that Local 100 had

conspired “to try to drive Texas Distributor• [a nonunion

subcontractor], or anyone else, out- of business,” or any

evidence that it had conspired “to create a monopoly in the

Dallas area for certain contractors.” To both ctUestions, he

answered that he had no su~h information. CAS regarded these

answers as conclusive, apparently because it read Pllen ra<lley ,

Pennington, and anotbeir CAS case to withdraw ioununity only

from union conspiracies that “create a monopoly among fellowconspiratory

busine11 interest .” This formulation is too

narrow when it ignores the existence of a conspiracy to reduce

price competition from contractors outside the multiemployer

unit and to secure “exclusive dealing agreements” from general

contractors to foreclose nonunion contractors from competing

for ~b1.

F-11

12.

Thus, as of the time of trial, there was evidence

suggesting that Local +oo w~s participating in a conapiracy

among unionized contractors, with the purpose of insulating

themae ~ve s from .outside competition. As an integral part of

that ~onspirscy , the agreement with Connell should have been

held outside the scope of Local lOO’s antitrust immunity.

Whe~her it was also an antitrust violation has not been decided

be ~ow. Unless the Court wanta to treat it as a per se violation

($nd I do not · think it fits the classic psttern. of a group

boycott or concerted refusal to deal, e.2. , Klor’s. Inc . v.

Broadwav-Hale Stores Inc., 359 U.S. 207 (1959)), it would

seem preferable to remand for decision whether the agreement

~,,

was illegal.

‘nl.ere is one final problem. Local 100 1s counsel informs

us that the “most favored nstions1• clause in the multiemployer

agreement was eliminated in 1973. Connell has not asked for

damages (surprise!) but only for declaratory and injunctive

relief. In a footnote. Local lOO’s counsel says that insofar

as Connell’s claim depends on the “most favored nations”

clause, it is now moot. Connell’s brief does not respond to

the point.

Whatever this problem is, it is not mootness. There is

a continuing live controversy between Connell and Local 100

over the legality of the “exclusive dealing” agreement. The

only question is what evidence ia to be used in ruling on its

legality: whether it ia to be determined as of now or as of

F-12

13.

tri 1. Local 100’• analogy to repeal of challenged statutes

i• not very helpful, because the agreement between Local 100

and the multiemployer group could continue quietly without an

express contractual provision. Moreover, if the “exclusive

dealing” agreement was illegal at it• inception. it would be

highly artificial to disregard thati!-llegality in determining

whether Connell is entitled ,to declaratory or injt.mctive relief

now. Accordingly, I would decide the case on the record created

at trial.

STATE ANTITRUST, LAW

The current rule for preemption of state law ia expressed

in Amalgamated St”r'”e et Employees v. Lockridge, 403 U.S. 274, 284

(1971): “the National Labor Relations ..t:1ct pre-empts the juria•

diction of state and federal courts to regulate conduct ‘arguably I

subject to § 7 or § 8 of the Act.'” -aef-ore this principle i

was announced as a rule of general application in San Diego

Building Trades Council v. Garmon, 359 U.S. 236 (19S9), it had

been applied to preemption· of state antitrust law. Weber v.

Anheuser-Bu eh, Inc., 348 U.S. 468 (19S5). Nor does, state

antitru1t law fit any of the eubsequent exceptions to the

Garmon rule. See Lockridge, 403 U.S. at 297-298; Cox, Labor

Law ~eemption Revisit d, 85 Harv. L. Rev. 1337, 1357 (197 ,.

Application of the Garmon principle would allow the use

of state antitrust laws in Allen Bradley conspiracies. EYen

if particular aspects of the union’s conduct are arguably

F-13

14.

protected or prohibited by the NLRA, the over-all conspiracy

would not be, and there would be no danger of a claah between

state antitrust policy and federal labor policy. To that

extent labor’s exemption from federal antitrust law would

coincide with the preemption of state antitrurat law. But

Justice White’s approach to the federal law, allowing antitrust

law to apply to some collective bargaining agreements on

mandatory subjects of bargaining. could not carry over into

state•law preemption. doctrine without undermining the Garmon

principle. To me, this furnishes another reason for rejecting

Justice White’s approach. Lockridge recognizes the need for

simplicity in state-law preemption doctrine, 403 U.S. at 289-290.

For the same reasons, congruence between the use of federal

antitrust and state antitrust would be desirable. Although

the federal antitrust exemption is found in the Clayton Act

and the preemption of state antitrust law has a judicial aource,

the two doctrines have a common purpose: to avoid the application

of conflicting legal principles in an area that Congress

has selected for detailed regulation. The only possible

justification for giving federal antitrust law a wider sweep

than state antitrust law is a willingness to trust federal

courts more than state courts. But federal judges, despite

their greater familiarity with federal labor policy, have a

poor track record. For all these reasons, I recommend a rule

that allows federal and state antitrust law to apply only when

F-14

15.

there is proof of union participation in a classical antitrust

conspiracy.

P.C.

F-15

FOOTNOTES

I think the USDC was wrong in denying the remand

because there was no federal ouestion in Connell’• complaint.

But after the motion was denied. Connell amended its complaint

to state a cause of action under the federal antitrust laws.

and there is now no dispute about fedaral jurisdiction.

From all indications. the leading figures in the

‘

passage of the Landrum•Griffin Act in 1969 believed that the

lag lity of picketing tw obtain a hot cargo agreement was an

unlettled que1tion. Conmittee reports and sp che on the

Ul\’\ai” ~l.~us dite-tAJ:s ‘illlt iJ~) WA~ MOt

floor of the House and the SenateAintended to chang existing

law on the point, as it pertained to the construction industry

agreements authorized by the proviso to 8(e). H. Rep. No.

1147, 86th Cong., lat Saas., st 943-944 (conference report);

II Legislative History of the Labor-Management Reporting and

Diaclosure Act of 1959, at 1433 (19S9» (statement of Sen.

Kennedy). A memorandum inserted in the Congressional Record

by Sen. Goldwater. a member of the labor com:nittee respon1ible

for the bill1 indicates that the committee recognized that

i1:

the ouestion had not been decided and intended to leaveAin

“in the same unresolved status ••• and [intended] that the

Board and the ciurt1 decide the issue for the building

construction industry as if these new amendments contained in

I 8(e) had not been enacted and in accordance with the

previou1ly applicable law.” Il Legislative History of the

~A. at 18S8.

F-16

Section 303, codified as 29 u.s.c. I 187. provides:

(a) It shall be unlawful, for th purpose of

this section only, in an indu try or activity

affecting commerce, for any labor org nizstion to

engage in any activity or conduct defined as an

unfair labor practice in I 158(b)(4) of this title.

(b) Whoever ehall be injured in hi business

or property by reason of any violation of subsection

(a) of this section may sue therefor in any district

court of the United States • • • without respect to

the amount in controversy, or in any other court

having jurisdiction of the parties, and shall recover

the damages by him sustained snd the cost of the suit.

As originally enacted, S 303 listed the practices that supplied

a cau1e of action, but in 19S9 the detailed listing was dropped

because it merely tracked the proviaiona of 8(b)(4).

I disagree with Justice White’s emphasis on this final

point. His Pennington opinion says that the union’• surrender

of its bargaining freedom “run[s] counter to antitrust policy,”

381 U.S. at 668, citing cases involving buainesse1. Treating

unions as “economic units” and lumping them together with

b uaineases ignores the history of labor policy. The Clayton

Act flatly declares that antitrust policy shall not prohibit

concerted action by workers, and the Wagner Act converted

the exemption into affirmative protection. This Court should

not undermine that strong policy by careless declarations that

a union’• participation in concerted action is contrary to

antittust policy. The illegality in Pennington was not that

the union tied its own hands, but that it aided a conspiracy

to eliminate competition among the mine operators.

F-17

UNITED STnTeS CoURT oF APPEALS

FOURTH JUÞISIAL CTiRCUIT

March 1þ, 19T6

ai.

CHAMBERS OF J. BRA,XTON CRAVEN JR.

UNrrEÞ STATES crRcutr JUÞGE

AeHEVILLE, NoRTH CAROLTNA 2AAO2

Dear Penny,

Thank you for sendi-ng me a copy of your brief in Assaf. I couldntt figure out how you turned up Judge lüinÏe’e

memorandum decision in research. Then I remembered your

memory. It does not surprise me that your brief is very

good and that you found time to wrlte a short one rather

than a long one. This year we are having so many teacher

cases that Mike Almond made up for me a do-it-yourself

teacher dismissal kit.

I4v concern with schott I s white sidewall- has developed into

a rough draft of a law revlew article for Duke. Slnce you have a practical interest in the subject matter, I

enclose a copy.

ï am so glad that you líke your work. I had all but

despaired of women really liking the practice of Iaw,

which has very little to do with whether or not they can

do it. But things are looking up. Beginning the first

week of January, Susan got turned on by participation in

a trial, and has ‘oeen turned on ever since. This morning

she is in Bryson City before a federal jury trying to talk

them into a verdict in excess of $foOrOOO. The defendantfs last offer was $T5.OOO. She works at- least a 6o-hour week, but seems to love every minute of it, and ‘previously did

not.

hlhen you get to Richmond, let me know, and f will feed you if I am not one of your judges the next morning.

Kindest regards.

Very sincerely y urs,

Enclosure

J.B raven, Jr.

Washington & Lee University School of Law

Washington & Lee University School of Law Scholarly

Commons

Supreme Court Case Files Powell Papers

10-1974

Weinberger v. Wiesenfeld

Lewis F. Powell Jr.

Follow this and additional works at: http://scholarlycommons.law.wlu.edu/casefiles

Part of the Civil Procedure Commons, Constitutional Law Commons, and the Courts Commons

This Manuscript Collection is brought to you for free and open access by the Powell Papers at Washington & Lee University School of Law Scholarly

Commons. It has been accepted for inclusion in Supreme Court Case Files by an authorized administrator of Washington & Lee University School of

Law Scholarly Commons. For more information, please contact osbornecl@wlu.edu.

Recommended Citation

Weinberger v. Wiesenfeld. Supreme Court Case Files Collection. Box 23. Powell Papers. Lewis F. Powell Jr. Archives, Washington & Lee

University School of Law, Virginia.

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