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.
© 2021 Historical Society of the District of Columbia Circuit.
All rights reserved.
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.
i
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.
iv
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.
vi
1
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?
2
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
3
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
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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!
5
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,
6
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.
7
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…
8
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
9
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.
10
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.
11
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.
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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
13
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.
14
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
15
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
16
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.
17
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
18
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
19
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
20
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
21
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.
22
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
23
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
24
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,
25
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
26
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?
27
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.
28
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
29
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
30
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
31
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.
32
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?
33
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
34
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
35
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
36
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.
37
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.
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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
39
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?
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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
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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
42
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
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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
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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?
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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
46
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?
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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.
48
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
49
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
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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
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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
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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]
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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
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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
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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)
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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
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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.
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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.
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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
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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
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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
63
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
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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
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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?
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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
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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.
68
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
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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?
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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.
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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.
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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
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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
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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…
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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.
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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
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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.
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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.
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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
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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
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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…
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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.”
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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
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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
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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
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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…
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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
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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
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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
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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
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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.
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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
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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
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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?
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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
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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
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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…
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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
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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
186
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/
I
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
t,
2.
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
3
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
2.
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
3.
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
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Gerald Gunther (8.Dlong others), as a sign that the Court
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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
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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
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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-
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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.
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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
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should play in the moveinent toward sexual eouality.
Four members of the Court, of course, would declare
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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”
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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
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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
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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
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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 .
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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,
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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
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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
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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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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
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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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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
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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
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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
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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
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more than 15 pounds. Some states have laws that prohibit
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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
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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
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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,
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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.
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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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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
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” “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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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
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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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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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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
11
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,
12
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
13
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.
I
There ia one other difference between the program for
attrition of male lieutenants and that applicable to female
I
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•
14
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
‘
.1
J
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
15
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
I
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
16
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
17
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
I
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
19
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
20
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
21
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.
22
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
23
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
24
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).
2.
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
J.
- 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
4.
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.
5,
- 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
– —- –
————~–~
2.
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
l
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.
(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.
2
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
4.
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.
3
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,
6.
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
7.
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
8.
aut’r”endered its freedom of action with respect to its bargaining
4
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 •
9.
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
I
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•
I
I
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
I
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.
88
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
I
2,
- 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.
i
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
\,
fi
a
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.