Complete Oral History of Marcia Greenberger, Esq.David McCarthy2020-11-06T17:30:58-05:00
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May 26, 2006; June 2, 2006; September 11, 2006; March 7, 2008
Transcript of Interview with Marcia Greenberger (May 26, 2006; June 2,
2006; Sept. 11, 2006; Mar. 7, 2008),
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Dates of Interviews:
ABA Senior Lawyers Division
Women Trailblazers in the Law
Interviewer: Sheila Slocum Hollis
May 26, 2006
June 2, 2006
September 11, 2006
March 7, 2008
Interview conducted on May 26, 2006 by Sheila Hollis
Interviewee: Marcia Greenberger -Tapes 1 & 2
TAPE 1, SIDE A
This interview is being conducted on May 26,2006 by Ms. Hollis: Hollis and the
interviewee is Marcia Greenberger. This is the first of several audio tapes that
we are beginning to record for the Trailblazers Project of the ABA and the
Commission on Women. And I’m here today in Marcia’s office, which is
beautiful, overlooking DuPont Circle. Filled with beautiful mementos. Marcia
is wearing a beautiful pink top; looks very Caribbean today like we should be
sipping pina coladas and I have a bowl of magnificent stemmed strawberries on
the table in front of me and a very wonderful hostess.
“So Marcia, thank you for setting aside time today. I’m going to be asking you
questions about your childhood and your family’s background and how it came
to pass that you have the passion and capabilities that you’ve exhibited so ably
over the years. So Marcia, first question, where were you born?
Ms. Greenberger: I was born in Philadelphia.
Ms. Hollis: When was that?
Ms. Greenberger: 1946. April 24, 1946.
Ms. Hollis: Well, happy belated birthday.
Ms. Greenberger: Well I just had my 601h.
Ms. Hollis: For the record, Marcia doesn’t look 60. She looks a lot younger.
Ms. Greenberger: For the record I have a very good and biased friend here making these
Ms. Hollis: Now, Marcia, tell me about your family and their interest in social issues and the
Ms. Greenberger: Well, my father and mother are both children of immigrants. All four of my
grandparents came from Russia and met here in the United States, and all four
struggled to establish themselves. My father was a college graduate and the first
one in his family to graduate from college. He was really a very brilliant man.
He was a math and science teacher in the Philadelphia public school system and
also taught at Temple University. He was also a wonderful musician and at one
point thought about becoming a professional violinist. My mother had gone to
business college after high school, married my father when she was 20, and had
a brief stint working in an office. But once she got married, she devoted herself
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to her family. I was one of three daughters and the middle child. I have an older
sister who is five years older, and a younger sister who’s five years younger than
I am. My mother is very musical herself, a talented pianist, and had been a
dancer in her youth. We grew up in a very intellectual and active household,
where it was unheard of not to have music lessons, and dance lessons, and art
lessons, and achievement in school was absolutely essential. If my grades were
not what they should be as far as my parents were concerned, there was never an
excuse that would be acceptable. My father was never willing to assume that it
was the teacher who was unfair. Rather, the approach my father and mother took
was to spend a lot of time with the three of us in our training and education. My
parents were very progressive politically and very engaged. For example, my
father was supportive of teachers joining a teacher’s union in Philadelphia during
a period when that was very controversial and a new idea.
Ms. Hollis: When was that Marcia?
Ms. Greenberger: I’m really not sure. I’m guessing somewhere in the 50s, but I’m not sure. I
remember those conversations and the debates about whether or not unionization
was professional, but I’m not certain exactly whether it was the 50s or into the
60s. Probably somewhere in the 50s.
Ms. Hollis: Yes.
Ms. Greenberger: And I remember coming home from school with the McCarthy hearings on TV.
I remember big debates in our house about Medicare and Medicaid and my
parents being very supportive of strong government health programs. They were
ardent Democrats. I went to elementary school with an Adlai Stevenson button
and was shocked to find out that hardly anybody else was supporting Adlai
Stevenson. The other kids were Eisenhower supporters, but until then, I had no
idea that anybody supported Eisenhower. That was the beginning of my
education in being on the losing end of elections. So, while dinner table
conversations certainly touched on school achievements, activities and the dayto-day, also, we did get involved in discussions about public policy and politics
and the like.
Ms. Hollis: Was that your father and mother?
Ms. Greenberger: Both my parents. When I went to elementary school, kids would walk to school
in the morning then walk home for lunch. Then go back for the afternoon and
then come back after school. My mother would be home making lunch. And
when I think back on it now, I realize what a very different time that was. She
would make a hot lunch and I remember having lamb chops and mashed
potatoes and things that would be a dinner-type meal for lunch. Of course, it
didn’t cross my mind about what that would have entailed in terms of her own
day and how little time she would have to be able to do anything but take care of
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the house and her three children. And, so it was very much a full-time
occupation. And, a lot of our activities were in the neighborhood; but because
they cared very much about our getting very good quality instruction, we would
also go into center city Philadelphia for dance lessons, for piano lessons and the
like. We were not allowed to stop taking these lessons until we were in our
teens, an~ if my father had had his way I would still be taking piano lessons.
Ms. Hollis: Where did you live vis-a-vis center city?
Ms. Greenberger: We lived in sort of the northern part of the city. In an area call East Oak Lane.
Ms. Hollis: How do you spell that?
Ms. Greenberger: 0 a k La n e.
Ms. Hollis: Got it.
Ms. Greenberger: While it was within the city limits, we would have to take a bus to the subway
and then the subway to center city. My mother did not learn to drive until she
was about 40. We only had one car. She would never drive into center city. We
used a lot of public transportation. Once I started junior high school and then
high school, I took public transportation. The high school that I went to was
Philadelphia High School for Girls, which exists to this day and is an all-city
academic high school. You took a test for admission and well over 90% of the
students went on to higher education.
Ms. Hollis: What about grade school?
Ms. Greenberger: Grade school was a neighborhood grade school called Rowen Elementary
Ms. Hollis: R o w s?
Ms. Greenberger: e n. I think. R o w e n. And it probably took maybe 20 minutes to walk to
school. Actually we were between two school districts so I went to a different
elementary school than my older sister did. It was very much of a neighborhood
school and the kids all walked home for lunch as I said. And, it went through 61h
grade and then junior high school began at ?1h. I was actually part of the very,
very beginning of the baby boom generation. I was born in the spring of 46, and
the Philadelphia public schools had A and B grades with kids starting in
September or starting in January. I, because of my birthday, would normally
have started in the January Kindergarten. But because there was a bulge of kids
my age, they pushed some kids ahead by half a year to try to even out the classes
a little bit. And so I have very distinct memories of going to take a test, which
included puzzles, to determine if I could be pushed ahead.
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Ms. Hollis: This is a continuation. Pardon the lunch noises and the chewing. Marcia was
just telling me an interesting fact about the way the school lunch system worked.
Which was there was no school lunch. Children were expected to go home and
the mother or someone was expected to be there to provide lunch for the
Ms. Greenberger: Right, so everybody had to leave the school at lunchtime and I actually do
remember at one point feeling very badly for a friend whose mother worked and
trying to figure out what she did for lunch. Now, I went to this elementary
school through 6th grade so this is 7 years of coming home for lunch, and I
remember only once that my mother couldn’t be there for lunch for some reason
or another. And so I got to go to a diner in the neighborhood with a friend of
mine. I must have been in 6th grade and I just thought this was the cat’s meow.
What could be better than to be given money to go to a diner and order whatever
I wanted for lunch? I mean it was just such freedom and so grown-up.
Ms. Hollis: Did you have aunts and uncles around or other family around?
Ms. Greenberger: Yes, I had an aunt, my father’s sister, and uncle who actually lived with their
children on the same block as we and one of my cousins, their youngest
daughter, was a year or so older than I. We used to spend a lot of time together.
And my mother’s sister and her family lived in the suburbs. It was probably a 15
minute drive, so we didn’t see them during the week, but our families were very,
very close. They had two girls that were younger cousins, and we spent a lot of
time together on the weekend. We usually had dinner every Sunday together.
My father had another sister with two daughters, one about my age-but they
lived about an hour away, so we did not see them as much. And my mother had
a brother who lived in New York, and who had no children.
Ms. Hollis What about grandparents?
Ms. Greenberger: My mother’s father died right before I was born. I was named after him. His
name was Marcus. My grandmother lived close to us and was very much a
presence in our house and a very frequent visitor. She died when I was about 11.
My father’s parents lived in South Philadelphia, which was probably a 45 minute
drive from where we lived. We would visit them every Sunday. They were both
immigrants, as I said, and they had a corner grocery store. As a young child, that
store was still in operation. It was a great treat to go and see it. They lived
literally above the store. Behind the store they had a living/dining room and
kitchen, and the bedrooms were on the second story. While we would visit in
the dining room/living room, we would go into the store and look at the pickles
in a big barrel that particularly fascinated me, and at the other supplies. By great
coincidence, one of the lawyers at the National Women’s Law Center, Judy
Waxman, was from Philadelphia, and we were talking one day about our
backgrounds. She grew up in South Philadelphia and as a little girl she went to
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my grandparents store almost daily and she remembered this elderly couple very
Ms. Hollis: Amazing.
Ms. Greenberger: She was maybe five years old, but in those days five year olds could go to the
neighborhood store by themselves. She could pick out what she wanted and put
it on a tab. I was heart-broken that my father had died before we learned of the
connection, and therefore he never talked to Judy himself about her memoirs.
He told many stories of their helping neighbors make it through the Depression
when they didn’t have enough money to pay for food and being very much a part
of this neighborhood. For him to hear that a friend and colleague of mine was a
little girl coming and remembering this elderly couple fondly would have really,
really meant an enormous amount to him.
Ms. Hollis Those are the times when you really miss him, when you get ready to pick up the
phone and call him.
Ms. Greenberger: Yep, yep, yep. So it was a very bittersweet thing, but a wonderful thing to learn.
Ms. Hollis: Do they speak Russian?
Ms. Greenberger: Neither of my parents spoke Russian but my grandparents, all four grandparents,
spoke Yiddish. My parents were fluent in Yiddish. My father’s parents used to
read a Yiddish newspaper, and I would see it on their dining room table when we
would come and visit. They spoke in accented English, but all my grandparents
were very fluent in English. When my parents did not want us to know what
they were talking about, they would speak in Yiddish. And my sisters and I
never really learned it. We know a few expressions, probably the same
expressions anybody knows who listens to comics on TV; but when it is
described as a dying language, we are a case in point as to why.
Ms. Hollis Did you go to grade school with children with similar backgrounds?
Ms. Greenberger: Honestly, I’m certain I did. But I don’t remember ever talking to people about
their backgrounds, their religions or their ethnicity. It was a pretty homogeneous
neighborhood economically and racially. It was a very modest middle class
neighborhood. It was certainly not a well-to-do neighborhood. The houses were
row houses. Pretty much everybody, though, was going on to college. As was
true for many families at that time, most women were not working outside the
home, and the families were able to make it on one earner’s salary.
Ms. Hollis Not much divorce or trouble?
Ms. Greenberger: I don’t remember divorces or any big scandals. The things I remember were
illnesses and an older brother of a friend who was killed in an automobile
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accident when he was 16. Those are things that I remember being shocked by,
but not divorce.
Ms. Hollis Were you a religious family?
Ms. Greenberger: We very much identified ourselves as a Jewish family. All four grandparents
were Russian Jews, our Jewish identity was important to my parents, and we
went to religious school. It was one of those things that were important,
especially to my father, that we did. I hated going to Hebrew school in the
afternoons, but everybody that I knew hated going. So it was just sort of
something that you endured. But we were not a family that went to the
synagogue for religious services every week, though we always attended high
holiday services every fall. We celebrated Jewish traditions. So we were very
certainly culturally strongly Jewish. There ~ere many Jewish kids in our school
but by no means all. There were a number of Jews in the neighborhood, but it
wasn’t a neighborhood that was uniformly a Jewish neighborhood.
Ms. Hollis Did you have a Bat Mitzvah?
Ms. Greenberger: I did. Which was highly unusual at the time. My family belonged to a
“conservative” synagogue, which is not reformed, nor orthodox, but in between.
The conservative movement was loosening up and they were willing to Bat
Mitzvah girls, and my Bat Mitzvah service was done in a group of three girls. At
that point girls weren’t allowed to read from the Torah. We could do other parts
of the service, but it wasn’t equivalent to what happened to boys when they were
Bar Mitzvahed, either in the religious service itself or the celebratory parties
afterward. In those days, the big party for a girl would have been a sweet sixteen
and most girls weren’t Bat Mitzvahed.
Ms. Hollis: We’re turning, just about to go back, to the grade school experience. Were there
any classes in which you particularly excelled that you really enjoyed more than
Ms. Greenberger: Well we didn’t break into specific classes with different teachers. We were
pretty much with one teacher for every subject. But, there were teachers that I
liked more than other teachers over the course of the years, and it was the teacher
more than the specific subject that sparked my interest. But I never thought of
myself as very good in math. Of course my father was a math teacher. I
remember when I was very young, maybe in second grade, I came home with a
report card and my grade in math was not good. I don’t remember what it was
but whatever it was it wasn’t good. I was mortified, and also knew that this was
just not going to be acceptable to my father. So he would sit down and do my
math homework with me every night. So in elementary school I didn’t
particularly like math. We didn’t have languages in those days until junior high
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TAPE 1, SIDE B
Ms. Greenberger: Both of my sisters were math majors in college. I would never have considered
becoming a math major. In fact, when my father died, I spoke at his funeral and
I talked about what a wonderful man he was and what a wonderful teacher he
was, but that he met his match with me in math.
Ms. Hollis: Now, did you think as a child that, gee, I want to be a teacher or a ballerina or …
what were you thinking?
Ms. Greenberger: You know, I’m not sure that I remember very clearly thinking about becoming
any particular thing. Certainly as a young child, I’m sure that I expected to get
married and have children, and probably, if I were pressed, in elementary school,
I probably would have thought that I would be a homemaker like my mother. I
expected to be knowledgeable and engaged in the issues of the day and an
accomplished person, but not to be a ballerina or a teacher or any of those things.
High school was much more important in shaping my aspirations. I went to an
all girls’, college-preparatory high school. My parents were not wild about my
going because I had no brothers at home and they worried that it could be too
limiting. My older sister actually had gone to a more traditional neighborhood
co-ed, multi-purpose high school. Girls High had been in center city when she
was in high school, and it had just moved into our general neighborhood in a
brand new building when I was starting high school. When it moved to our
neighborhood, the girls who were more academically oriented started going to
Girls High, and my parents viewed its academic rigor as more important than
being in a co-ed high school. In fact, there already was an all-academic high
school for boys-Central–only a block away from the new Girls High for many
years, where many neighborhood boys went to school. So I went to Girls High.
There was certainly no sense in my family of going to a girls’ school because it
was going to be empowering or anything like that. But it was very empowering
in fact. It was when I was in high school that Kennedy was President and I was
just absolutely enthralled by the Kennedys, the Kennedy administration, the
glamour of Washington, the politics that my parents were interested in. They
weren’t particular Kennedy fans, but they certainly were supportive of him over
Nixon in the election. I thought, at that point, that the most wonderful thing in
the world would be to be able to go to Washington, to work in Washington, and
to have a career in public policy and government in Washington. My older sister
and I remember having conversations about how wonderful that kind of thing
would be. But it seemed much more like a dream than something that I could
actually plan for and achieve. But, my high school fostered the notion that girls
should achieve, that academic achievement was important, and that girls should
think about a career. I started, I guess, in ’58 or ’59 and graduated in ’63. I had
very, very strong positive feelings about my high school experience and Girls
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Ms. Hollis: Does it still exist?
Ms. Greenberger: It still exists. When I started working on women’s rights issues, a lawsuit was
brought, which I didn’t have anything to do with, on behalf of ~iris who wanted
to attend Central. That particular lawsuit brought under the 14t Amendment,
argued that separate can’t be equal as a matter of law for gender any more than it
could be for race. The case was brought with the plaintiffs’ stipulation that the
educational program in both schools was largely the same.
Ms. Hollis: What year was this?
Ms. Greenberger: It was, I guess, in the early to mid-70’s. The Third Circuit, in light of the
stipulation that Girls High and Central were basically the same, held that the sexsegregation was constitutional. The Supreme Court took the case and split 4/4.
Rehnquist was on the court by then but the case had gone through the Justice
Department while he was there so he recused himself and never voted on it.
Interestingly enough, several years later, the Women’s Law Project in
Philadelphia, who we work very closely with, brought another case under the
state Equal Rights Amendment. Pennsylvania has a state equal rights
amendment. This case looked at the actual facts and found that the schools
weren’t equal at all. Central had very substantial advantages over Girls High in
concrete ways, such as in the size of the library, the number of teachers with
advanced degrees, an endowment that Girls High didn’t have, and, of course, the
sports program. When I went to Girls High, there were hardly any sports teams.
The girls went to Central to be cheerleaders for the Central teams. The math and
science offerings were also far superior at Central. And the list went on. And so
the stipulated premise of the earlier case was wrong. The court held that unde~
the state equal rights amendment, Central had to accept girls. And it is now coed. I was shocked when I read the facts. I had no idea there was that kind of
disparity in resources, in teachers, in library size and many other things that were
not so apparent. Obviously, I knew about the sports program. The opinion
detailed the math and science offerings that Central had but Girls High didn’t.
And, of course, the case also talked about the network of alumni at Central that
held enormous sway in Philadelphia’s business life, political life, in all facets
really of Philadelphia life, as well as nationally. In those days Girls High didn’t
have an extensive alumni network of prominent women in all walks of life
because opportunities for women had been so limited.
Ms. Hollis: Do you think that was the case when you were there?
Ms. Greenberger: In important ways it still was. This case was documenting those differences in
place for generations, that for the most part either escaped people’s attention or
were deemed to be acceptable.
Ms. Hollis: I see. I see.
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Ms. Greenberger: But they and I didn’t think about them. Nobody talked about them. We had
home ec classes. But we didn’t have shop. And the boys at Central learned how
to wire a lamp at shop. But they didn’t learn how to sew an apron or cook
applesauce-the things we did. So, when you think about that kind of thing
now, of course, those differences are obvious and glaring. But in those days I
took them as a given, and perfectly understandable, and the fact that we didn’t
have sports teams didn’t really phase me. It’s the way life was. We played halfcourt basketball. Philadelphia was a prominent region for field hockey and that
was one of the few team sports we played in gym, and I liked field hockey very
much. But, you know, of course the sports program paled in comparison to that
offered to the boys, as was the case with the math and sciences programs. We
had calculus, we had physics, which I took, but the offerings were much more
extensive at Central.
Ms. Hollis: And what about art, music and that type of thing? Are those classes everybody
Ms. Greenberger: There were certain required courses and so we did have art classes and music
classes at Girls High. But once they became electives, I didn’t take them. By
then I had developed views of my strengths and my weaknesses. I was not much
of an artist and I struggled, actually, with foreign languages. But at that point I
really began to love history. I ultimately became a history major in college. But
it was in high school that I had some wonderful history teachers. I found history
and politics, public policy really, something that engaged me.
Ms. Hollis: Did you take speech or debate?
Ms. Greenberger: I didn’t and I don’t really remember whether they were offered. They could well
have been. But I wasn’t a very assertive person.
Ms. Hollis: Really?
Ms. Greenberger: In high school, I was pretty quiet and so I think there could well have been those
possibilities offered. I’m really not sure. But I would not have thought of
myself as somebody who would benefit from them.
Ms. Hollis: Did you know any lawyers during that time or did you start forming any notion
of women in law or lawyers, judges?
Ms. Greenberger: Absolutely not. Absolutely not. I cannot remember knowing any lawyers.
There must have been some lawyers who I came into contact with. My parents
had friends and family who were doctors, accountants, teachers, other
professionals, not lawyers.
Ms. Hollis: They did have or didn’t?
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Ms. Greenberger: Did not have. One ofmy close friend’s father was a lawyer. But I never knew
what kind of law he practiced. And it wasn’t of any particular relevance to our
friendship that he was a lawyer. I don’t remember being particularly engaged in
trying to find out what he did or what kind of practice he had. I never really
thought about the law as the way to get involved in public policy or government.
I wasn’t sophisticated enough to even draw those connections.
Ms. Hollis: Did your parents ever say, you know, “have you thought of being a doctor or a
Ms. Greenberger: No. I think my parents really thought, in traditional terms for the 50’s and early
60′ s, that I· needed to have a profession that would be a good compliment to
being married and having children. And so in their minds, it was important to be
able to get a teaching degree because that was a career that could work well with
family responsibilities. So, I went to the University of Pennsylvania and that …
Ms. Hollis: Did you go there … did a lot of people you know went there?
Ms. Greenberger: Well, it was common in the public high school where I went, for people to go to
college in Philadelphia, or maybe Penn State, if they were going away. Many
people lived at home. My older sister went to Penn but she lived at home and
commuted every day. I certainly remember some people in high school going
away to college. But the college counselors were not encouraging us to think
about schools around the country. We knew very little about financial aid. I
applied to three colleges: I applied to Penn, Penn State and Temple. And
nobody suggested to me that I might think about other possible schools-or
which schools would work well for me. Those kinds of conversations I never
Ms. Hollis: I don’t think they existed except maybe for a few guys, a few boys.
Ms. Greenberger: Or in maybe very elite or suburban high schools, possibly, or private schools.
But that whole process I went through with my own children–questioning
whether they preferred a big school, a small school, in a big city, what part of the
country-none of that was anything that I thought about as options for myself in
high school. I really did not want to live at home. I really wanted to have a
college experience of dorm life and an active campus. And so from my
perspective, Penn State was the best option because my family would pay instate tuition and that would make living away from home economically possible.
Penn was more academically challenging and more difficult to get into. My
older sister went to Penn and loved it even as a commuter. I’ll never forget
coming home and seeing that I’d gotten into Penn, which was really an
achievement in my high school. There were a substantial number of kids that
went to Penn. But it was still not the majority by any means.
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Ms. Hollis The toughest schools too, for most people to get in.
Ms. Greenberger: Right. I felt gratified that I got in, but thought to myself that I was probably still
going to go to Penn State because I really, really wanted to go away for college.
And then after about a half an hour in my room, puttering around or doing
whatever I was doing, I turned over the letter and noticed that I had gotten a
scholarship. I burst into tears because that meant that I could go to Penn and live
there. So, I went to Penn because of that scholarship which I hadn’t expected to
get. It never occurred to me in a million years that if I could get into Penn and
have a scholarship to attend, that maybe I could have applied someplace else and
gotten a scholarship to go there. Nobody ever suggested it; it never crossed my
Ms. Hollis: And there were no high school counselors. Did they have meetings with high
Ms. Greenberger: Clearly not in a way that provided any true guidance.
So, I did go to Penn. As it turned out, they had a housing shortage for students
and so my first year I could not get a dorm room. So I had to commute my first
year, which I was very miserable about. And I …
Ms. Hollis How old were you then? 18?
Ms. Greenberger: Yeah, I guess I was 18. Well, I was 17 going to be 18. I was a little bit younger.
Ms. Hollis Yes. You started earlier.
Ms. Greenberger: You know, baby boom situation. So I was a little bit younger. And I will never
forget, going to the housing office and bugging them and bugging them, with an
aggressiveness that was not natural to me then. It has very much become more
natural to me now. But I was so, so yearning to be able to live at school that I did
assert myself. I had an appointment on November 22°d, 1963, with somebody at
the housing office to see there if there was any chance of my moving up on the
waiting list and being able to move in to a dorm in January. It took me a long
time to get that appointment and I had all my arguments ready-including how
far I lived, and how dangerous the commute had become because of assaults in
the public transportation system. I got there and the woman said “Oh, I
completely forgot you were coming. You have to understand, of course, we
can’t meet. Goodbye.” I didn’t know what she was talking about. What do you
mean, of course, we can’t meet? I’d been waiting for this for weeks. I had my
heart set on this. I had my whole case ready to deliver. But I said “Oh, okay.”
And I turned around and walked out and I was devastated. I got on the subway
to go home, miserable that she had just blown me off and that’s when I learned
that President Kennedy had been shot. That was the day. I never did get off the
waiting list that year. But I did live at Penn for the following three years. To go
back to the point about being a teacher, you could not get an education degree at
Penn. They did offer some education classes which you would have to take if
you were to be certified as a teacher in the Philadelphia schools. But those
courses did not count as part of your undergraduate credits. So I actually took
· those education courses in summer school, so that I could be certified to be able
to teach. It was very important to my parents and made perfect sense to me.
Teaching was the career that I envisioned having, and my interest in the
Kennedy Administration and politics, as I said, was much more of a dream than
it was anything that I thought of as something to plan for.
Let me change tapes. I’m almost to the end here.
TAPE 2, SIDE A
Ms. Hollis: Ms. Greenberger:, during your period at Penn, did you become politically active then?
Obviously, you’re interested in government but, you’re pursuing yo~r teaching
certificates as well. When did you first awaken to an interest in the political
environment of an undergraduate and that path?
Ms. Greenberger: Well, I was always interested in the political issues of the day, but I didn’t
necessarily connect those interests with a career path. Those, of course, were pretty
turbulent times. There was obviously a lot of activity around civil rights. Though
interested, I never went down to Mississippi or got involved to that degree in civil
rights issues. But I went to many kinds of forums and discussions around civil
rights issues. There were many, many speakers who came to Penn, and I went to
many different kinds of events. There was a major sit-in while we were undergrads
because a building was going to be built on the quad and take valued open space.
There wasn’t a whole lot of open space at Penn’s campus at the time, and it wasn’t
any great building that was being built. So there was a sit-in and I remember
participating in that. And then, of course, the Vietnam War started to heat up and
get more attention. And, I went to a number of teach-ins and debates around the
Vietnam War. But Penn’s campus was pretty quiet compared to others around the
country. In the meantime, I became a history major. I really, really loved history,
and I loved Penn, and I loved being in a university setting. I loved the intellectual
vibrancy of the university. I took art history as a sophomore, an introductory
course., and I especially loved that. I had a quite fabulous professor and was sorry
that I couldn’t major in art history, but it wasn’t feasible·. I was interested in a lot of
things, and really loved a whole range of topics, particularly if they were taught by
good professors. By my junior year, I thought what I’d really like to do is become a
university professor. I wanted to go to graduate school and get a Ph.Din history
and teach at the university level.
Ms. Hollis: In what area?
Ms. Greenberger: History.
Ms. Hollis: And what aspect of history?
Ms. Greenberger: It probably would have been American history. I had a very renowned American
history professor as my advisor, and I also took an honors class and wrote an
honors thesis in my senior year with him. I asked him to be a reference for me
and to get advice about where to go to graduate school, and he was very
discouraging. I knew at the time that I was the strongest of the students that he
had in the honors course. ·
Ms. Hollis: You were doing very well academically?
Ms. Greenberger: I was doing very well. I did very well academically. Also, it was a pretty small
honor’s class. What he said to me was that he would provide a reference for me,
but he couldn’t honestly be very encouraging·about my taking this path because I
would get married, have children and getting a Ph.D. was a very arduous process
that he didn’t think I’d finish. Then I would end up without a Ph.D., I would get
a Master’s degree instead, and I’d be teaching history at a high school level
which I could do without going through the Ph.D. program. He really thought I
should think this path through because it was going to require a lot of investment
and support and was it really going to be worth it for me and for him to go down
that path if I really wasn’t going to complete it. And that was very sobering. In
the meantime ….
Ms. Hollis: Were you surprised at him or were you just surprised at his assessment or were
you disappointed in him that he couldn’t see ….
Ms. Greenberger: I was mixed. On the one hand, I thought here he was being very fatherly, taking
an interest in me, trying to think about what was going to really be practical and
make the most sense. On the other hand, I did want him to be a reference. I did
want to do this and I wasn’t happy that he was being discouraging. And I was
confused about whether or not the advice he was giving was the advice I actually
should take. Maybe he was doing it because he was really trying to be helpful to
me. And maybe he was right that it was biting off more than I could chew. And
I also found getting a Ph.D. was somewhat daunting in terms of stories I knew of
people who worked on their dissertation for their whole life, who could never,
ever actually finish their Ph.D. I thought of it as a daunting process that required
a lot of discipline. So I needed a lot of encouragement, and I was getting the
Ms. Hollis: Yes.
Ms. Greenberger: Not that I didn’t have the capacity necessarily but that the circumstances were
going to conspire against me. I didn’t realize, until Ruth Bader Ginsburg was
nominated to the Supreme Court, and a woman made a comment that when she
had had her as a law school professor, she was the first female professor that this
woman had ever had, that I had never had a female professor at Penn during the
whole four years I was there for any topic, including history. And in fact, when I
went to law school I never had a female professor either. There was only one
woman professor at Penn during the three years I was there, Martha Field, who
ultimately left Penn and is at Harvard now. I never took a course with her and so
I never had a female professor through my 4 years of college or my 3 years of
Ms. Hollis: At the University of Pennsylvania?
Ms. Greenberger: There was one graduate assistant who was a young woman in the history
department, and I was very intrigued by her. When you talk about role models
and ask if I knew any lawyers, of course, I knew many woman teachers in
elementary and secondary school. There were some woman professors at Penn,
but few enough that I didn’t have one. And I can picture to this day this young
woman graduate assistant who was leading one of the break out sections from a
big survey class who made an impression on me just because she was a young
woman. I can’t remember the faces of most of my professors, but I do remember
that young woman.
Ms. Hollis: Yes.
Ms. Greenberger: … even though she wasn’t really a professor, so you know those were very, very
different days. Also, when I went to Penn, there was a College for Women and a
College and Wharton undergrad and an Engineering school and a Nursing school.
But for liberal arts, there was a separate college for women. It wasn’t named
separately the way Radcliffe was with Harvard or Pembroke was with Brown.
But you were admitted as a woman to the College for Women. It was smaller
than the College, the admission standards were higher, overtly higher. There was
no secret about it. We all thought, isn’t it great that we’re so much smarter than
Ms. Hollis: Was this on the basis of SAT and grades or?
Ms. Greenberger: Both.
Ms. Hollis: Yes.
Ms. Greenberger: Yeah. And our degree came from the College for Women, not the College. Also,
we had curfews in the dorms. The guys did not. So, we had to be in Friday
nights by 12:15 or 12:30 and Saturday night was 2:15. We also did not socialize
readily in groups of women or in groups of friends unlike students do today. We
went on dates.
Ms. Hollis: Right.
Ms. Greenberger: The guy had to ask you out.
Ms. Hollis: Oh, yeah.
Ms. Greenberger: So, if you didn’t have a date, you didn’t go.
Ms. Hollis: Right.
Ms. Greenberger: And you were dependent on some guy for what you did.
Ms. Hollis: Right.
Ms. Greenberger: For a big part of your social life.
Ms. Hollis: Yes.
Ms. Greenberger: And, I certainly had girl friends who missed their curfews and were disciplined
and worried about getting suspended or expelled and not getting their degree on
time. Guys never had those concerns. Men, including fathers, were allowed in
DM2\711089. l 15
women’s dorms only one Sunday a semester from 3 to 5.
Ms. Hollis: Hah.
Ms. Greenberger: And a freshman male student didn’t have any of these curfews, didn’t have any of
these discipline issues. We had to wear skirts to classes, skirts to dinner.
Ms. Hollis: Wow.
Ms. Greenberger: There was a breakthrough during the time I was in college so that women could
wear pants to the library on Sundays.
Ms. Hollis: (laughs) Gotta love it.
Ms. Greenberger: It really was ….
Ms. Hollis: (laughs)
Ms. Greenberger: Also, there were young women in my suite at the time, my dorm suite, who
wanted to set up a crew team for women. It was very controversial. What are
they doing? Is this just a lark? Do they want a crew team just because they think
they’re going to get better known on campus?
Ms. Hollis: Meet guys.
Ms. Greenberger: Meet guys. What do they need a crew team for? To show the big change over
time, when my younger daughter went to Penn, she was moving into a freshman
dorm, which had been the male dorm when I was in school, and young women
came over and tried to recruit her to come out for the women’s crew team. Going
back to those days when I was in college, my history professor told me that as a
woman I should really think long and hard before going down the long path of
getting a Ph.D. There had been many, many, many experiences throughout all of
my schooling, most of which I noticed to some degree or other but took as a
given that sent the very clear message that girls do not do what boys do, should
not do what boys do, and that these differences led to second class treatment in
many ways. But those differences were all presented as being for the girl’s own
Ms. Hollis: Right.
Ms. Greenberger: It’s also true that many young women in my class were getting married before
they graduated. There was a big rush after sophomore year when lots of girls
came back engaged in the fall of their junior year. There was an expectation that
by college graduation many would be married. Many of my best friends were
married right after college. I did not get married until after the second year of
law school. I was just twenty-three, but I felt like that was old at the time.
Ms. Hollis: Oh no. Twenty-three you know ….. you’re way out there on the edge … who
Ms. Greenberger: Yes. So, you know, there was very much during all this period, a reliance on
men to take charge. Much of your social life was dependent on whether or not
some guy was going to ask you on a date and take you some place. People
getting engaged, people getting married, making those plans during college. All
of that affected many young women’s, including my own, notions of career and
future. So when this history professor told me it would require seven years to get
a Ph.D. and that young women like me would leave before completion to get
married and have children, I was coming at it with a lot of trepidation. I didn’t
see very many women with Ph.Os. I was seeing lots of women getting married
and not pursuing careers.
Ms. Hollis: Weren’t taught by any?
Ms. Greenberger: I wasn’t taught by any. Seven years seemed like an eternity. You know, gosh if I
wasn’t married in seven years, I really was going to be old. And then, who
knows where I’ll be and all of that. So when you ask, well, how did you take it?
I was disappointed to some degree because I really did want to start the program.
But on the other hand, what he said to me didn’t sound crazy.
Ms. Hollis: Were you participating in outside, you know, other types of experiences, belong
to clubs or sororities?
Ms. Greenberger: I did. I didn’t belong to a sorority. But I did belong to several different clubs,
including some clubs involving international students. As I said before, I really
loved the richness of the student body, the diversity of the people and their
experiences and I did some volunteer community work also, through some clubs.
But the agendas of the clubs weren’t really defining, motivating parts of my
school experience. The things that really stuck with me were much more the
professors that I met, the people that I met, the new worlds that were opened up
to me. I traveled in Europe, for example, with two friends.
Ms. Hollis: What year?
Ms. Greenberger: The summer between my junior and senior year, 1966, I had saved up money and
we went following Frommer’s travel guide on $5.00 a Day.
Ms. Hollis: Oh yes.
Ms. Greenberger: And we literally spent $5.00 a day, including tickets to go see plays or whatever
else we were going to do.
Ms. Hollis: You could do it?
Ms. Greenberger: We lived on $5.00 a day, and were three young women who had just an
extraordinary experience. It was a dramatic change from anything I had done
before. I never was even on a plane until I was fifteen years old.
Ms. Hollis: Where’d you go?
Ms. Greenberger: In Europe, we went to London, to Paris, to Switzerland, several places in Italy,
Ms. Hollis: Everywhere.
Ms. Greenberger: Florence, Rome, Brussels. It was a few nights in a lot of places with longer stops
in some. We traveled for about two and a half months. Well, these two young
friends of mine were very committed to going to law school.
Ms. Hollis: How did they come to their conclusion that they’re going to … ?
Ms. Greenberger: I am really not sure. I’m really not sure. They were good friends of mine, but, I
don’t know. Their parents were not lawyers, but they really settled on that as
something that they wanted to do and they urged me to think about law school
and come with them. They argued that I’d always been interested in politics and
they had very similar kinds of political leanings and interests. Plus law school is
only three years, and no worries about a dissertation. I knew I could walk in and
take an exam. I could work during the summer and earn money to help with the
tuition costs and it just seemed doable. Plus, at the same time I was being
discouraged by my history advisor from getting a Ph.D., he was very enthusiastic
about law school. At that point, there was a young guy in our class who he was
very supportive of, but I was a stronger student. I wondered whether he was
delighted at the prospect that I would go off to law school and he could put all his
support behind the male student. The unfairness of these things was beginning to
sink in even the …
Ms. Hollis: Click. Yes.
Ms. Greenberger: thick skull of mine. So all of my political interests and my dreams of having a
job like those in the Kennedy Administration started to come together with these
two friends of mine, whose moral support and encouragement really, really
Ms. Hollis: Did you stay in touch?
Ms. Greenberger: Absolutely. They were great friends and supporters throughout. I didn’t have the
mentoring experiences in a traditional sense. But I had those two girlfriends to
thank. My older sister was also very, very supportive of my continuing school,
and she thought law school was a wonderful idea and she really, really
encouraged me. My parents were happy that I was doing it, and they were proud
of me. If I had become a high school history teacher, they would have been
DM2\711089. I 18
Ms. Hollis: Wonderful also.
Ms. Greenberger: That would have been wonderful also. So the idea of trying to expand and do
something beyond what was expected wasn’t anything that they were urging.
They were happy and supportive about it. But it wasn’t anything that they had in
their mind to press me to do. But my older sister really thought it was a
wonderful and exciting opportunity and my two friends were there so the three of
us went to law school. Now, it was Spring of ’67 when this whole decisionmaking process was underway. By then, the Vietnam War had heated up very
dramatically. Graduate school deferments from the draft were still in place. So
for male students in my class who did not want to be drafted, going to graduate
school was absolutely essentials there were very, very few who wanted to go into
the war — very, very few.
Ms. Hollis: Sure.
Ms. Greenberger: And they were thinking about deferments and graduate school was the obvious
and easiest way to get one. So when my two friends and I went to take the
LSAT, we were accosted as we were walking up the steps of the building. We
went together to Temple University where it was being given on a Saturday, and
we were approached by young men who were enraged that we were taking the
LSA Ts and taking seats away from men who were going to be drafted if they
were not in law school. As far as they were concerned, there we would be sitting
in a law school where we didn’t belong and sending someone off to unknown
dangers. So people were yelling at us about why we were taking the LSA Ts.
And my two friends, who were less meek than I, were outraged as they should
have been, and gave me the gumption to keep going. So I did apply to history
graduate school and to law school. And I was accepted at Columbia, both to the
law school and the history program. So my advisor, as discouraging as he was,
did support my application at the end of the day. By then, though, I had decided
that law school was really appealing to me. I actually went to visit some law
classes at Penn. And I received a sufficient amount of financial aid that it looked
very doable to go. I intended to go to Columbia, but was concerned that even
with financial aid New York City was so expensive that I was going to· have to
live in a graduate dorm, which seemed very unappealing to me at the time. The
law school was very, very business oriented and had a reputation at the time of
being very competitive and unsupportive.
TAPE 2, SIDE B
Ms. Greenberger: The more I thought about it, the more I thought that even though I was looking for a
different experience than staying at Penn, Penn Law School had a lot more appeal. It
was a much smaller school. It had a reputation for being a much more nurturing
atmosphere and financially, it would have been a lot easier for me to manage. I had
the prospect of roommates to share an apartment with at the time. So, at the last
minute I switched to go to Penn Law School and, as it turns out, my husband also had
plans to go to Columbia, had registered at Columbia, and at the last minute decided on
Ms. Hollis: Did you know him from undergraduate?
Ms. Greenberger: No, he didn’t go to Penn as an undergrad.
Ms. Hollis: Oh, where did he go?
Ms. Greenberger: He went to Lafayette College, a small college in Pennsylvania.
Ms. Hollis: Yes.
Ms. Greenberger: And so we met in law school.
Ms. Hollis: Isn’t that amazing?
Ms. Greenberger: So it is a great irony that we were each on our way to Columbia, each switched to
Penn. So that’s how I ended up going to Penn Law School. One of the two young
women who had encouraged me was going to Penn also. And the other went to
George Washington. They both stayed active in the law, and they each have had very
Ms. Hollis: Oh, you know, I think we should probably stop there and then go to law school and
really start about your legal career. It’s been a wonderful, wonderful discussion, really
great. It’s so funny, you know, there’s so many parallels to my experiences.
Interview conducted on June 2, 2006 by Sheila Hollis
Interviewee: Marcia Greenberger -Tapes 1 & 2
TAPE 1, SIDE A
Alright. We’re beginning our second recorded session for the Trailblazers
project. It is now June 2nd, Friday, Washington, DC. I’m back with Marcia
Greenberger in the National Women’s Law Center offices and it’s a hot muggy
day. She’s in a very pretty green suit. We’ve had a few laughs and we’re
ready now to begin our session. So, Marcia, have a seat. We have made it up
to the doorstep of the University of Pennsylvania law school and it’s now time
for us to talk about your law school experience and the things that interested
you and got you moving in the law in the direction that you have ended up
which is involved in public policy issues and women’s issues. So, with that,
Marcia, so you got to the University of Pennsylvania Law School and I’m
interested in hearing about those first few months in law school, and where you
were headed and basically your view of the law and what it meant to you.
Well, I must admit there was a fair amount of culture shock when I went to law
school. First of all, there were very few women in my law school class. There
were about IO and the class started with about 240 students. So, it was a very
small percentage to begin with.
What year was this Marcia?
This was the Fall of 1967 and it was a very tumultuous time because of the
Vietnam War. By the fall, things really had heated up. The antiwar movement
was very strong and in the fall of my first year of law school, graduate school
deferments were taken away. So, for many of my male classmates, their
expectations that they would be able to stay in law school for 3 years were
dashed. Many of them then had to scramble to figure out what they were
going to do: whether they would be drafted; whether they would be able to find
some way of staying in law school; or whether in order not to be drafted they
were going to have to do something else entirely. And the demonstrations on
college campuses, the political activity, all of that was exploding during my
first year. By the midpoint of the Fall of my first year of law school, that really
dwarfed almost everything else in terms of the whole atmosphere of the law
school. There was an enormous amount of political activism, and a sense that
the federal government had an enormous impact on every human being in my
law school, the country and the world at large. So, building on the civil rights
movement and student activism generally that had been percolating while I
was in college, as well as the idealism from the Kennedy years, students felt it
was their role to speak out and take action. So, for example, my now-husband
Michael, (who I met in our first year), was in charge of a series of sessions at
the law school that pressed the administration to examine the whole curriculum
of the law school, whether it was relevant and why it should take 3 years to get
a law degree. The students came to the conclusion that really one year of law
school was probably adequate, a year and a half at most, and the rest was
unnecessary. But the Penn Law School campus was actually pretty placid for
those days. There were enormous upheavals in other law schools. The
Columbia campus, for example, was shut down because of demonstrations and
violence, and there were no grades for three out of the six semesters for the law
school class that graduated in 1970.
That was Columbia?
That was Columbia, yes. That never happened at Penn Law School but it
really still was a very, very tumultuous period. Skipping to my third year,
there were invasions in Cambodia and a major march on Washington, which
Michael. and I went to, by then married. We were finishing law school with
one eye on law school and one eye on what was going on in the world and
politics and the war and what it meant. So it was a very, very unique period in
history that especially permeated the law school in every way. (cell phone
rings) Can I just take that?
There was, as I said, the enormous impact of the Vietnam War. Ultimately my
class of 240 ended up being a class of about 120 or so that actually graduated.
So, in those years, there was an enormous dislocation by many of the students
leaving either the first or the second year. The number of women remained
about the same, with some transfers out and some transfers in. But we were
certainly dramatically affected by what was going on with the war and with
husbands or boyfriends or brothers or friends. These times reinforced the
feelings I had had before about interest in politics and interest in what was
going on in Washington. Our class really was unique. For the class ahead,
draft boards were letting the 2nd _year students finish. And for the class coming
in, they came in knowing that law school wasn’t going to provide a deferment.
We were caught up in that same period too.
Beyond the war, there was a second issue about law school I had to adjust to. I
had loved being an undergrad. I had loved so many varied courses. I had
loved the intellectual atmosphere of the university campus. I had thought
about becoming an academic and teaching, because I loved the whole
intellectual feel of the university campus. Law school was a rude awakening.
The Socratic method was something that I wasn’t use to. Most of the classes
that I remember in college were either lecture classes or classes where you
volunteered if you spoke. In the very beginning of law school I raised my
hand, wanting to participate. The sections were about 100 students each for
our first year class, and the way the law school worked, which was typical then
of law school and probably still is to this day, is that you have all your classes
with one section that you were assigned to. In this big auditorium of about 100
students, I raised my hand to volunteer to answer some questions, but then
after having witnessed what happened to the other volunteers who were
demolished by the law professor through the Socratic method, I just decided I
was never volunteering lest the same thing happen to me. Also, the topics of
my law school classes that first year, except for constitutional law, were not as
interesting to me as the classes I had taken in college. I wasn’t that interested
in contracts, torts, or civil procedure. I struggled to shift into the kind of very
analytical, linear thinking that law schools teach you. And like many others in
the first year, I got caught up with studying all the time. I would spend time at
the library, eat lunch at the law school cafeteria and so it was a pretty all
consuming experience. At the same time, I felt very aware of being a woman
student in a somewhat hostile environment. From the experiences I had had
when I went to take the LSAT, and because of the draft, I really felt uneasy
and like an oddity in law school to begin with. The women law students were
called on for the rape cases and jokes were made openly about us. I was called
on, for example, to discuss the Mann Act and transporting women across state
lines for prostitution. I had this feeling that many of the guys in my class
assumed that there was something weird about the women who went to law
school and we had to demonstrate that we were regular human beings. So, I
was kind of retreating, especially during those early months. We had a classic,
elderly torts professor who was very much of the old school, named Clarence
Morris. Early in the semester he called on me for a case and he asked some
very, very detailed question about some mechanical problem with an airplane
in the case. While I had read the case, I had absolutely no idea how to answer
the question. So, I made up an answer and he said, “Nooooo.” My given
name was Devins, and he boomed “Miss Devins, try again.” So, I came up
with another answer. “Nooooo, Miss Devins, try again.” I tried 4 answers.
None of them was right. It was obvious I had no idea. I said, well, I’m going
to try one more time but if I can’t answer this time, you’ re going to have to call
on somebody else because obviously I don’t know, at which point the entire
class erupted in laughter. After class, people came over to reassure me. That
broke the ice, and I joked with my good friend, the woman I went to law
school with, that I had demonstrated to the entire class that I was no threat
whatsoever and that I would bring up the rear of the class. But in truth,
although I had this sense of having humiliated myself in front of the entire
class, it was also a defining moment. I was forced to speak out, to perform
under pressure, and to answer on the spot. I was wrong, but I survived, and
even made friends as a result because I handled it with humor. That kind of
toughening, which I got in law school, was very important. I’m very grateful
to that professor for persevering and breaking through my reticence. I
remember there were some other young women in my class who never really
did speak out the whole three years. They were not called on, and remained
intimidated through law school. We all had an incredible awareness of being a
woman all the way through those three years. Also, in our moot court
competition the first year, I partnered with my good friend that I had gone to
law school with and we won the competition. Recently, when we were
reminiscing, she reminded me that the two guys who were our opponents, after
the judges found that we had won, loudly complained and sputtered in outrage
that they were beaten by two girls. And these were the kinds of things that
people said out loud in those days.
…. without any sense that there was anything in the least bit inappropriate about
Right. Remember it well.
At the same time, there was also something else at work in my law school. A
woman in my law school class started dating a guy in our class. They were
very public about the fact that they were dating each other — and it became the
source of total gossip for the entire law school. They were not in our section
but that didn’t stop any of the people in my section from talking about it, let
alone the people in their section. That taught me to be pretty leery about
having any romantic relationships with anybody in my class. Ultimately, their
relationship ended, which then only stirred the gossip all the more. It
reaffirmed my view that it was much better to have any kind of relationship
that I was going to have outside of law school and not inside. Then I met
Michael, whom, of course, I eventually married. I didn’t know my husband
during the first semester although we were in the same section. We were
studying one night late in the law school and having dinner in the cafeteria and
ended up sitting with mutual friends at a big table. We got introduced. Of
course, he knew who I was because as a woman I was so visible. I probably
had some vague notion of who he was. And, so we became friendly, but our
relationship really developed over the summer outside of law school and
outside of the watchful eye of all of our classmates. When we came back in
our second year we were very purposeful in trying to be discrete and not have
people know that we were seeing each other. And, so very few people in the
law school, only our closest friends, knew that there was this relationship. We
got married after our second year over the summer and came back in our third
year married. Most people were very surprised. These days, I think, it’s a
common thing for people to date in law school. But in those days, I felt as if it
was reinforcing a stereotype that I went to law school to find a husband. But
even with the awkwardness of so few women in our class, over time, law
school became more comfortable and more rewarding. There were a number
of faculty members in the law school who I thought were wonderful role
models, brilliant, articulate, interested in public policy. Legal reasoning
became more natural. I became relaxed about how I was doing in law school,
and I began to enjoy it more. I became a research assistant to a law professor
who had worked in Washington and who ultimately actually became a Special
Prosecutor, Henry Ruth.
Oh! Henry Ruth, my goodness.
He was somebody that I came in contact with again over the years when I
practiced in Washington, he actually became a partner in my husband’s law
firm and became a friend. Also, Paul Bender, my professor who made
Constitutional Law so interesting, came to Washington as Deputy Solicitor
General in the Clinton Administration. I met with him on a number of sex
discrimination cases in the Supreme Court and he actually argued the Virginia
Military Institute case
In his argument to the Supreme Court about the Virginia Military Institute
claim that they couldn’t have women in the class because women couldn’t take
the tough adversarial method of teaching used by the school, Paul used an
analogy that clearly resonated with the Justices: the inappropriateness of a law
school deciding that it really couldn’t accept women because women wouldn’t
be able to take the Socratic method of teaching.
It was a great analogy and clearly the Court came out on the right side as far as
we were concerned in the Virginia Military Institute case. But it resonated
very personally with me too about the importance of getting that kind of
training for professional life and life in general and not to be treated like a
wilting flower and with an expectation that you will dissolve in tough
situations. I surprised myself in another way because one of my favorite
classes turned out to be the tax class that I took in my second year. I had a
wonderful professor named Bernard Wolfman. Even then he was a quite well
known professor who ultimately became the dean of the law school. He then
taught at Harvard. He was a fabulous professor to begin with, and was really,
really interesting and engaging in class. He taught the tax code as a reflection
of public policy. In fact, it really was a public policy course on why the tax
code favors certain kinds of activities and not others, supports certain kinds of
arrangements and not others and how it shapes society. I loved it. I worked
the summer between my second and third year for the Internal Revenue
Service in Philadelphia, the regional office, because I really did like the tax
class so mµch and was so engaged by it. And I must also say that I was taken
aback by the interview process with law firms in those days, where I was asked
questions about my seriousness about becoming a lawyer, drilled about being a
woman, and feeling quite uncomfortable. Most of the law firms did not have
any women lawyers at that point. Of course, there were hardly any women in
my class to begin with and I just decided to go to the IRS that summer. By my
third year, when I was married and thinking about what to do next, I also
needed to coordinate with what my husband, who was finishing third year of
law school too, was going to be doing. He wanted to clerk for a federal
appellate judge, and was offered a clerkship with Judge Carl McGowan on the
DC Circuit. Michael was the editor-in-chief of our law review; and because
that was such a prominent position, the clerkship for him was resolved very
early on just as our third year was beginning. I was very enthusiastic about his
taking the clerkship in Washington. We thought at that point we probably
would end up coming back and living in Philadelphia, and I had never lived
anywhere outside of Philadelphia. Washington had had this great appeal to me
ever since I had been in high school because of the Kennedy Administration.
And so I just thought that would be a very exciting thing to do. I talked to
some faculty about the possibility of my having a clerkship, but they were very .
discouraging. They said most of the federal judges wouldn’t take women law
clerks to begin with. Secondly, in the DC Circuit there was only one judge
who would — Judge Edgerton, who was a retired judge. The fact that my
husband, Michael, had already gotten a clerkship on the DC Circuit made it
even less likely that any judge would consider me. And so I never really did
do a serious effort to try. to get a clerkship. Ironically, our older daughter Sarah
recently clerked on the DC Circuit for Judge David Tatel, having graduated
from Penn Law School. Of course, now there are many, many women who are
clerking, though not a majority yet. But it is hardly unusual to have a woman
clerk, and most judges have no problem with spouses clerking for judges in the
TAPE 1, SIDE B
So what seemed pretty unthinkable at the time, or radical at the time, now has
become much more commonplace and routine with individuals being selected
on the basis of their merit and not whether or not they may have a relationship
with someone or be married to someone. I worked during my third year for a
law firm, having worked that second summer for the government, to see what a
law firm would be like. I went to one of the big Philadelphia law firms,
Ballard Spahr Andrews & Ingersoll. The idea was that I would start out
working in one department and rotate to others over the course of my third
year. I started in the tax department and liked it very much and just stayed
working in the tax department through my third year. And the firm was very
supportive, very wonderful. I was very impressed by the lawyers and there
were a number of lawyers there who I was inspired by. It was a point at which
law firms were really trying to develop pro bono activities and …
That was about 1970?
Yes. This would be the Fall of ’69, the Spring of ’70. One lawyer worked full
time doing public interest work for the firm, and another lawyer was very
interested in doing public interest work who subsequently left to start a public
interest law firm in Philadelphia — Ben Lerner and Michael Churchill — who
were very important role models and mentors to me that I think about to this
day. The firm had one woman who was not on a partnership track. She’d been
there for a number of years and …
This is Ballard?
Yes. No woman associates. I don’t know what her formal status was then. I
think she ultimately did become partner. But in those days she was either a
permanent associate or a contract lawyer or in an “of counsel” position. But it
was something that was pretty unusual and outside the normal associate-topartnership track. · But the firm was very reassuring when giving me an offer
about being open to women lawyers, wanting women lawyers, and being
enthusiastic about my coming back as an associate after graduation. Which is
what I thought I would probably do after my husband finished his clerkship.
Also at the time, when Michael’s clerkship was going to start in the fall of
1970, Nixon was President. It was not an administration whose political
philosophy was aligned with mine. A number of possible government agency
jobs of interest to me, for example in the Office of Economic Opportunity were
being dismantled, and I certainly didn’t have a very sophisticated
understanding about possible other places to consider in the government. I
really didn’t look into the Justice Department or other possibilities which I’m
sure could have been very rewarding. I was very nervous through the Fall
about the prospect of not going through the usual recruitment and hiring
routine focused on law firms that the law school set up. And in those days
there were very, very few government agencies that came to interview at the
law school. And so I did interview with Washington law firms and I ended up
focusing on a few. One was Covington & Burling. At that point it was the
largest law firm in Washington, though not very big by today’s standards at all.
It was the best known outside of Washington, and since I was planning to
return to Philadelphia I was advised it_ would be a good place to have come
from. The firm had very few women lawyers and it had a reputation for
placing the women associates in the trusts and estates department. Trusts and
estates did not interest me, so although I did have an offer from the firm, I
broadened my search. I interviewed at another Washington firm and to this
day I remember sitting in a partner’s office. This was a firm that had no
women at the time, and the partner said to me that he really didn’t see how the
firm could hire women because Washington was very unsafe and there was
much crime. He didn’t see how the firm could justify having a young woman
lawyer because lawyers work very late hours. They’d be in the office late at
night and it would be terrible if something were to happen to a young woman
when leaving to go home. I walked out of that office feeling upset, and
thinking about the secretaries who were staying late at night typing the briefs at
the firm. And I was very upset with myself for not marching back into the
partner’s office and saying to him that any security precautions they followed
for the secretaries would be fine for me. But I didn’t, and my regret at not
speaking up has stayed with me all these years. I also interviewed at a
wonderful firm called Caplin & Drysdale. They specialized in tax law and it
was a small firm, then about 20 lawyers and a relatively young firm. Mortimer
Caplin had been the commissioner of the Internal Revenue Service in the
Kennedy Administration. It was a wonderful combination of a small firm
comprised of many people who cared about public policy and public service
and practicing tax law which to me was very interesting and engaging. And so
I decided to go to Caplin & Drysdale. They had no women lawyers either. I
told them that my husband was clerking on the DC Circuit for one year, and
there was a very good possibility that I might only stay for a year. I was very
worried that they would hire me as their first woman and then, if I didn’t stay,
say, “Oh, you see, you hire these women and they only stay for a year.” But
they laughed and said. “Oh, that’s what everybody says. Tell us in 10 years
after you’ve been in Washington about your intention to go back.” In those
days, staying at a firm only for a year or two years was not routine. Of course,
we didn’t leave Washington as it turned out, just as they had predicted. So, I
graduated from law school in 1970 feeling as if it had worked well for me
beyond my wildest dreams. I ended up doing well academically. I left with
some very dear friends, both female and male. I met my husband of now
almost 39 years. And I had a job I was thrilled with. I have very, very strong
positive ties and feelings about the law school to this day, even with some of
the discrimination that I faced at the time. I come back to the law school often.
I served on the Board of Overseers of the law school and my older daughter
just graduated from Penn Law. It gave me a career that I’ve loved, it changed
me as a person, and it allowed me to realize this dream that had started in high
school of getting involved in public policy in Washington. Law school
allowed me to take advantage of opportunities as they presented themselves.
My path all seems to make a lot more sense in retrospect than it would have
prospectively: that my husband chose a clerkship in Washington over
someplace else; that we stayed in Washington; that I did go to law school and
not ultimately to graduate school in the first place. All of these things in
retrospect seem to make sense, from my childhood, from my parents and the
McCarthy era, from our dinner table conversations. But I can’t say growing up
I ever expected that they would all come together the way they did.
So, you arrive at Caplin & Drysdale?
I arrived at Caplin & Drysdale and began to attend lunches that were set up by
young women associates in some other Washington firms to provide each other
with support. There were very few of us in those years, and we decided that
we would have an informal set of lunches. I remember women from
Covington, Wilmer and other large firms participating. One of our big issues
at the time was whether women could wear pantsuits to the office.
I remember it well.
They were quite stylish at the time, but the whole idea of coming to work in
pantsuits was pretty revolutionary. And there was no such concept as dress
down anything. And, of course, I was of the era when even young women in
college had to wear skirts to classes and skirts to the library and skirts to dinner
in dorms. Although, in those days the hemlines for the skirts I was wearing to
work were pretty short. I’m not sure that, in fact, it wasn’t more businesslike
and professional to wear pantsuits than some of those very short skirts. I
dutifully raised the issue with my firm and the leadership of my law firm
agreed that women working at the firm, including secretaries, could wear
pantsuits to the office but they had to have matching jackets and they had to
bring the jacket to work. They couldn’t just claim there were matching jackets
somewhere. It had to be a real suit. That was one of our first successes. Of
course, the whole concept of arguing a case in a pantsuit was never something
that anybody thought to even put on the· table. This was a pretty progressive
response. And I did wear pantsuits.
I stayed at the firm for a couple of years. To explain my dramatic career shift
to woman’s rights advocacy, I should actually go back to law school just for
another minute. When it was clear that we were going to come to Washington,
I really had hoped to try to do something in public policy, but I had no idea
how to go about getting a job on the Capitol Hill, and as I described I thought
that the Administration in office at the time was not likely to be compatible
with my policy views. I had very little understanding of the vast array of
possible positions in the federal government. One of my law professors, Henry
Ruth, had some connections with the Senate Administrative Law Committee,
· as it was then called, and it was chaired by Senator Kennedy. He wrote a letter
on my behalf. But this was in the Fall of 1970 and, of course, as I now know,
the idea of applying in the Fall for a job that I was not going to be available to
take until after I took the bar in the summer was ludicrous. When jobs come
up on the Hill, they tend to look to fill them right then and there. When I
learned that for that kind of job I was probably gotng to have to wait until
closer to the time that I was in Washington, I was, frankly, afraid to take that
chance. There weren’t very many public interest groups and the Center for
Law and Social Policy had barely, barely begun. I hadn’t even heard of it. I
did know about the ACLU, but they weren’t hiring. The whole idea of coming
to Washington and then going through several months without a job was not
only unacceptable and scary but then I wasn’t even going to necessarily have a
whole year of working at a job. But when I went to Caplin & Drysdale, I also
tried to get more involved in some of the public interest efforts that were
developing in Washington at the time. I was the law firm’s representative to
the Lawyers’ Committee for Civil Rights, and served on the executive
committee of the Washington Lawyers Committee. I also took on some pro
bono criminal law cases. As it turned out, one of the great, fortuitous
experiences in my life was going to Caplin & Drysdale for many reasons. It
was a superb firm, and I was imbued with a sense of the importance of doing
excellent legal work. I also met terrific people there who valued public
service, and most specifically was exposed to one of the best mentors anyone
could have. Justice Arthur Goldberg, who had been practicing law in New
York City after he had left the Supreme Court to become the U.S.
Representative to the UN, decided that he wanted to come back to Washington
and set up his own practice. But he wanted to associate with another firm. He
had been in the Kennedy Administration as Secretary of Labor with Mort
Caplin and there were a number of former Supreme Court law clerks who were
associates at Caplin & Drysdale, along with other superb lawyers there. So he
arranged to set up his firm within Caplin & Drysdale’s offices and to use
Caplin & Drysdale’s associates to work with him on legal matters. And so I
had this unexpected and really unique opportunity to work with Arthur
Goldberg and he was fabulous to me. He was a wonderful teacher and advisor.
Never for a minute did I feel as if he was less interested in me because I was a
young woman lawyer, or that he took my career any the less seriously than any
of the other young lawyers in the firm. He just was terrific.
How old was he then?
Gosh. I don’t know. I would guess in his 60’s. I’m really not sure. It’s an
interesting question, since my perception of age then was very different than
what it is now.
At that time, he also had agreed to help the Center for Law and Social Policy,
one of the first public interest law firms in the country, to get started. He
agreed to chair the Board and to help it get funding from foundations. With his
help, the Center for Law and Social Policy started in 1969 with four young
lawyers who saw that the justice system was not working as it should. The
system is premised on the notion that competing interests will be represented
with a neutral judge able to weigh the arguments on both sides. But too often
one side wasn’t being represented at all. The problem was largely because
many important interests simply did not have the economic wherewithal to
secure legal representation. Environmental concerns were a prominent
example of the problem. Because each individual person didn’t have enough
of an economic interest, or the capacity, to hire a lawyer in the way that a
company would, the environmental perspective was often absent. The same
was true with consumer protection issues. The Center was created to provide
representation for these interests. The Center was an innovator regarding
clinical legal education as well. It made arrangements with five law schools
(Penn, Yale, UCLA, Michigan and Stanford) to provide their students with full
credit for working for a semester at the Center. The Center lawyers taught
seminars and had luncheons and other programs to supplement the hands-on
experience of the students. After I had been at Caplin & Drysdale for a couple
of years, I found that my interests were more with tax policy than tax practice.
And given that Caplin & Drysdale specialized in complicated tax matters, the
practice required intense focus that I did not want to commit to give. By this
time, my husband and I also became excited by the vast array of legal
opportunities in Washington, and so I began to think about what else I might
do. I had had exposure to the Lawyers’ Committee, some criminal law, and I
also had done some volunteer work on a political campaign for a presidential
Harold Hughes, a senator from Iowa.
And I got to work on some cases with Arthur Goldberg, and learned about the
Center for Law and Social Policy from him. So my horizons were broadening.
By my second year at Caplin & Drysdale, my husband had begun to work at
the law firm Wald, Harkrader and Ross.
I remember the firm well.
That firm was started by Robert Wald, a wonderful public spirited lawyer.
Bob Wald’s wife, Pat Wald, was an extraordinary lawyer as well. A graduate
of Yale Law School, she had cut back on her practice to raise five children.
But during the time that I was at Caplin & Drysdale, she had begun to work at
the Center for Law and Social Policy on a range of matters.
Interview conducted on September 11, 2006 by Sheila Hollis
Interviewee: Marcia Greenberger -Tape 1
SPEAKER: CONVERSATION TEXT:
TAPE 1, SIDE A
Ms. Hollis Alright. Well, I pick it up at the Pat Waid connection.
Ms. Greenberger: Pat Waid mentioned to me that the Center was about to hire some young
lawyers to work on a range of different issues at the Center, and that might be
of interest to me. It seemed too good of an opportunity to be true. The Center
had a grant to hire a bunch of young lawyers to work on Center projects, and
also there was a possibility that the Center would designate one of those
lawyers to work on women’s rights. At this period, now 1972, except for Pat
Wald, who was not full time, the lawyers were basically all male. The
administrative support staff was almost all female. Along with the women law
students working full time at the Center, the administrative support staff
presented a list of demands to their male bosses. First of all, they wanted the
Center to hire women lawyers. Secondly, they wanted the Center to work on
women’s rights issues. By 1972, Ruth Bader Ginsburg had started the ACLU
Women’s Rights Project and had won her first case in the Supreme Court, Reid
v. Reid. Decided in 1971, that case was the first time there was a successful
equal protection challenge based on sex discrimination. Statutes were also
beginning to be considered in Congress banning sex discrimination, and so the
administrative staff and law students argued that there was exciting work the
Center could do on women’s rights. The third demand was that they get better
pay given their very demanding jobs requiring high level skills. They prepared
a very sophisticated memoranda making what has become a comparable worth
analysis of why their jobs were underpaid and undervalued because they were
largely held by women. And their fourth demand was that they not have to
serve coffee. The lawyers at the Center responded well generally, and
specifically agreed to hire someone to explore whether there was enough work
to keep one lawyer busy working on women’s rights. If so, that person would
work on these issues.
Ms. Hollis: Yes, full time! (laughs)
Ms. Greenberger: I heard from Pat Wald about this as well as the other openings at the Center,
and I interviewed for a job. I was offered a position either to work on
women’s rights if I could come up with a program that was worthwhile or to
work on other Center programs. At the time, there were no other full time
lawyers working on women’s rights in Washington. So, when the question
was being raised about whether there was enough work to keep one lawyer
busy full time, this was a question of whether there was enough work for one
lawyer in the entire city whose job it would be to work full time on women’s
Ms. Hollis Crazy.
Ms. Greenberger: So, there was very little understanding at the time of what it would really mean
to be a women’s rights legal advocate, but a real openness on the part of the
Center lawyers to give it a try. Just the year before when, in 1971, the
Supreme Court, in Reid v. Reid, struck down a state statute that discriminated
on the basis of sex for the first time under the Equal Protection Clause, the
Court did not articulate any new standard for reviewing sex discrimination
cases. So it was unclear at the time what the decision really meant. So, the
Center lawyers asked a very fair question reflecting how little had been
developed in the area of sex discrimination law at that period of time.
Ms. Hollis: Fascinating.
Ms. Greenberger: By then, I saw things very differently. What had seemed very routine and
acceptable to me growing up-going to a girl’s high school where we would
go and cheer for the boy’s teams but not have teams of our own, going to Penn
where the girls had to meet more rigorous admissions criteria, having to abide
by stricter rules and curfews than the guys, being told it would be better as a
woman ifl didn’t pursue a Ph.D., the experiences in law school, the
experiences of looking for a job– I finally saw as deeply unfair and reflecting
a systemic denigration of women. Also looking back, I realized how
empowering my parents were as well. While they certainly came from very
traditional backgrounds, they had very high expectations of achievement for
me and my two sisters. We were all expected to excel in everything we did.
There wasn’t the sense on the part of my mother or my father that we didn’t
have to worry about how we do in school or what our achievements were
because we were girls who would eventually get married-which, by the way,
each of us did.
Ms. Hollis: No pressure thoughMs. Greenberger: ….. right none of that. They certainly hoped I would get married but that didn’t
lessen any of the pressure on achievement in general. So, by the time that I
was faced with the prospect of coming to the Center for Law and Social Policy,
and deciding which area I would work in, it was no surprise that I was so very
excited about the idea of women’s rights. I discussed it with my husband, and
he was very enthusiastic about this choice as well. Though it is fair to say that
neither of us expected at the time that this would become the focus of my
career over all of these years. I never envisioned the creation of a separate
organization with a staff of 60 or that the fight for equality would still require
so much effort and so many resources. Looking back, I realize that I’ve never
been a great prognosticator or planner, but I have certainly been the beneficiary
of luck, of doors opening, and of having the good sense to go through them.
Ms. Hollis: So, where was the office located on the first day when you walked into the
Ms. Greenberger: I can almost see the building from my office now-it is just a few blocks
away. It was in a beautiful, historic townhouse, a building where Public
Citizen is now. It’s north of Dupont Circle on Connecticut Avenue. I’m not
sure that I have also described how important Justice Goldberg was in opening
this door for me. Arthur Goldberg was Chair of the Board for the Center for
Social Policy, and he encouraged me to go to the Center. He thought it would
be a wonderful thing to do as opposed to continuing in private practice.
Moreover, the fact that I had been able to work with him and he could vouch
for me and my work was important, I’m sure, in my getting the offer to come
to the Center. The lawyers at the Center were extremely talented and superb
colleagues. Ben Heineman came at the same time I did. He has had a varied
and stellar career in government and the private sector, including as general
counsel of General Electric for many years. Paul Gewirtz also started at the
same time and went on to become a law professor at Yale. Joe Onek was the
head of the Center, a truly superb lawyer and person, who also had a varied
career in public service and the private sector. And, of course, Pat Wald, an
icon as a lawyer and judge, was at the Center, among many others. I have
stayed in touch with many of these outstanding lawyers, who remained great
supporters of the work on women’s rights that I began. Finally, one other
young lawyer, Margaret Kohn, started when I did. Though she began her work
on health issues at the Center, at law school she had been dedicated to
women’s rights and was very knowledgeable about a range of women’s legal
issues. She became a close ally and friend from the very beginning, and was
absolutely essential in helping me to shape my work and focus.
Ms. Hollis: So, that first day, and this will wrap up the interview today, but that first day
when you walked in and sat down behind the desk, what did you say to
Ms. Greenberger: In the law firm or the ….
Ms. Hollis: In the Center.
Ms. Greenberger: Well, I went from a law firm where I had my own office, where I got new,
very business-like furniture in a traditional office building, where wearing
pants to work was a great break-through, to a beautiful townhouse, but one that
had seen better days. Also, the Center was expanding and hiring all these new
lawyers and was pretty much out of space. So, my first days were in a room
with several other people, with a desk that had been donated probably by a law
firm that had originally purchased it in the 1940s. There were not the support
systems that came with a successful law firm. But, on the other hand, there
was an enormous vibrancy with people working in a very informal atmosphere,
law students around, a lot of enthusiasm and excitement. But I must admit I
felt some trepidation about exactly what I was going to do, how I was going to
figure this all out and whether I was going to be able to create something of
Ms. Hollis: Did you have a to-do list in your hands that first day?
Ms. Greenberger: From the beginning, I believed that the most important thing for me to do was
to learn from people and talk to people who were doing ground-breaking work
on women’s rights but also in the public interest movement which was also
new. I had terrific resources at the Center with respect to public interest
strategies. But, I was going to have to do some digging to figure out where the
women’s rights expertise was going to come from, although I certainly had
some obvious names to start with.
Ms. Hollis: Good start!
Ms. Greenberger: I should say one other thing when describing the people that were important.
By way of example, I will mention Morgan Hodgson who was a law student at
the Center at the time, and was part of the cadre of young women who
developed the four demands. She became managing partner of Steptoe and
Johnson, one of the major law firms in Washington. From those early years, it
was apparent that one of the wonderful aspects of the Washington community
was a real sense of women wanting to be supportive of each other. And that
commitment to help remained with those early young women law students and
associates who have moved on to do many different and important things over
time. With the public interest world more broadly, with Pat Wald helping,
with Arthur Goldberg and so on, it was a real network of support that I think
marked the Washington community. I really had a sense I was going to be
able to tap into that community when I started the job and that was both very
reassuring and turned out to be very true.
Ms. Hollis: Great. Alright.
Ms. Greenberger: Alright.
Ms. Hollis: Then we will do this again in a couple of weeks right on time.
Interview conducted on March 7, 2008 by Sheila Hollis
Interviewee: Marcia Greenberger – Tape 1
TAPE 1, SIDE A
This is March 7, 2008, and I’m in Marcia’s very pretty office, and she’s
looking elegant, annoyingly elegant as always, so we’re getting ready to
launch into the next phase of her career and the birth of the National
Women’s Law Center.
To add just a few more points about the years leading up to the National
Women’s Law Center. When I started at the Center for Law
and Social Policy, and my first assignment was to do a memorandum to
determine whether there would be enough work to keep one lawyer busy
full time, I want to explain why it was at a time when there was no other
full-time legal advocate working on women’s rights in Washington,
D.C. The Women’s Legal Defense Fund, which had been started in
1971, was all-volunteer at that point and had no legal staff in place. So
when I started to meet with people to talk about possible issues, many
were suggested immediately, and to the credit of the lawyers at the
Center, when I described what I might work on, they said it was a stupid
waste of time to write this memo, that I ought to just pick some projects
and get started, obviously there was more than enough important work
to be done. And the Women’s Rights Project of the Center for Law and
Social Policy was born.
I picked three areas to focus on: employment, education, and health, for
a variety of different reasons. First of all, they were all three obviously
very important for women. Secondly, especially in education and
employment, the legal tools were beginning to be developed. Title IX
had just been passed that summer of 1972; Title VII had been amended
and strengthened in 1972, and it was at that point that problems of sex
discrimination in employment were seen as really important and
explicitly intended to be addressed by Title VII; and there was energy
around getting an Equal Credit Act passed, which happened in 1973. So
these were times when the laws were just getting established, and
employment and education were obviously very central. And I picked
health as the third area because the Center was working on health issues,
and it seemed important to try to harness some of the interest and
support of the other lawyers at the Center. So to the extent that they
were working on health issues, there was an overlap that it seemed to me
could be very helpful in broadening the resources beyond just me.
I thought that litigation would be a major part of what I was going to do.
One of the first, most important cases that I considered arose from
discussions I had with a set of advocates working with NOW and an
organization called Women’s Equity Action League, among others.
They had worked very hard to get Title IX passed, which became
effective in July of 1972. I started in November of 1972. Title IX was
modeled after Title VI of the 1964 Civil Rights Act, and they both
prohibited discrimination in federally funded programs. Title VI applied
to all federally-funded programs and barred discrimination on the basis
of race, national origin and religion. Title IX, because of the need to
compromise, only prohibited sex discrimination in federally- funded
education programs or activities. When Title VI was passed in 1964, it
was part of the ’64 Civil Rights Act; it took six months for the
implementing regulations to be promulgated for the whole program, and
then enforcement began.
By 1973, it was becoming clear that there was little prospect of the Title
IX implementing regulations getting shaken loose from the Department
of Health, Education and Welfare. And, in the meantime, the
government was taking the position that until the regulations were
issued, they weren’t going to enforce Title IX. There was a lawsuit that
had been brought based on Title VI in the D.C. Circuit, Adams v.
Richardson, which established in an en bane decision that the
government had an obligation to enforce laws. The courts couldn’t
direct the government as to how to enforce, but the government had no
discretion to simply refuse to enforce the law. We relied on that holding
and brought our own lawsuit and filed it in 1974. It took me some time
to put the case together, but it was a major and important first venture. I
did sue both the Department of Health, Education, and Welfare and the
Department of Labor, the two agencies with the primary responsibility
for dealing with the sex discrimination laws in schools at every level
because they were simply refusing to promulgate regulations, address
complaints that were being filed, and were doing virtually no
What time was that? When was-what year?
It was 1973 when I started to work on the case, and 1974 when I filed it.
To explain, the case was primarily based on non-enforcement of Title
IX, but it also included Executive Order 11246, which Lyndon Johnson
issued in 1964, that the Department of Labor enforced. It required nondiscrimination and affirmative action for any institutions that got
government contracts over a certain minimum amount.
And that Executive Order program was amended to include sex
discrimination effective as of 1969. Well, almost every industry in the
country gets government contracts from insurance to banking to
universities. University women faculty were organized to file
complaints under this Executive Order for all the sex discrimination they
were facing, which was rampant at the time. And they were an activist,
informed set of employees.
Sheila Slocum Hollis: Is that AAUW?
Ms. Greenberger: Many AAUW members were active, but there was also a woman,
Bernice Sandler, who played a major role in the development and
passage of Title IX. She had worked on Capitol Hill to get Title IX
passed, and knew about this Executive Order. She worked at the
Association of American Colleges when I met her in 1973, and she had
informed women faculty of the fact that the Department of Labor had an
obligation to resolve sex discrimination complaints against these
covered universities that got millions of dollars in research grants. So
hundreds of complaints were filed; the Department of Labor sat on those
complaints, as did the Department of Health, Education, and Welfare;
and the women, who filed these government complaints started being
retaliated against. They were in terrible straits having put themselves
out on a limb to file these complaints; the complaints languished, and
the women faculty had no protection. Also, Title IX generally, which
protected students as well as employees and went from K through 12 all
the way through post-graduate education, was sitting there languishing
because the implementing regulations weren’t being promulgated.
So we put a lawsuit together and it was styled Women’s Equity Action
League, et. al. v. originally Richardson, because Elliott Richardson was
the Secretary of HEW at the time. This case basically lasted 16 years,
going through many administrations.
I represented the Women’s Equity Action League, NOW, the
Association of Women in Science, the National Education Association
among others. There were also a number of individual plaintiffs who
had filed complaints, and experienced discrimination. We also had
taxpayers because in those days, you could have taxpayer standing to
bring lawsuits, and a purpose of these civil rights laws, including Title
IX and the Executive Order, was to make sure that taxpayer dollars
weren’t being used to subsidize discrimination in federally funded
programs or government contracts. One of our taxpayer plaintiffs was
Mama Tucker, who, of course, became a national leader in the bar. It
took quite a bit of time to engage in the discovery, to research the legal
issues, and develop the case.
By 1975, we got a court order, based on a partial settlement, that the
government would issue regulations implementing Title IX, and, as a
result, regulations were issued in 1975. That was a major
accomplishment that I am very proud of to this day-for the regulations
remain in place and form the backbone of Title IX. The government
also committed to investigate those Executive Order complaints, and to
conduct compliance reviews of at least ten university systems around the
One of the things that had kept those Title IX regulations from being
promulgated was athletics. After Title IX was passed and the coaches
realized that this law might have something to do with them and
football, they went crazy. And they started lobbying like crazy. And
HEW had a hornet’s nest to deal with. If HEW issued regulations with
any kind of equality principles applied to athletics, men’s athletics,
football in particular, athletic directors and alums would be up in arms.
And so HEW was simply kicking the can down the road until our
The regulations dealt with athletics, nepotism and nepotism principles
that have prevented women from getting positions in universities, and
many other thorny issues, but the thorniest was athletics.
So in ’75 the regulations set out very general principles that allowed for
single-sex teams to continue, but required equal opportunity in general
within the teams and among the teams, and the male and female athletic
programs as a whole. The WEAL case was an important piece of
litigation, to be sure, but it also brought me and the Women’s Rights
Project of the Center into a broad women’s rights coalition and made
our lawsuit a part of the movement. So that unlike a traditional law firm
where you might be brought in to bring one case and then another
unrelated case and then yet another different case–this effort established
a model that actually, I think, fit the developing practice of law in
Washington. Law firms saw legal advocacy as covering a range of
strategies from the actual lawsuits to getting implementing regulations,
advocating before government administrative and enforcement agencies
about what those regulations should look like, to getting laws passed to
Right. Working on the Hill. In those days, also, there was a law that
required certain regulations, including Title IX regulations to be
reviewed by Congress. Congress had a certain number of days within
which to disapprove regulations. That law got us involved in work on
the Hill. Because once these regulations were promulgated by HEW,
then the lobbying began in Congress by opponents to weaken or
disapprove them. So I got into legislative advocacy as well as
administration advocacy very early on. The regs, as I started to say,
with respect to inter-collegiate athletics laid out very general principles
and gave universities and colleges three years to come into compliance,
until 1978. The reasoning was that pre-Title IX, there were almost no
inter-collegiate athletic programs for women, and virtually no
scholarships for women athletes, so schools were starting from scratch.
They had to build their teams. They had to build their programs. But
the way many colleges and universities read that three-year period was
as a free pass for three years before they even had to start to come into
compliance. Schools said, “Well, okay, if we don’t have to be in
compliance yet, we’re just not going to worry about it yet.”
When 1978 came, virtually no school, college or university was in
compliance. Schools then said the 1975 regulations were far too general
and far too confusing for schools to have any idea of what they were
really supposed to do, so they couldn’t possibly be expected to comply.
And the Office for Civil Rights, facing the same pressures that had
caused it to punt to begin with, as they say, in issuing those ’75
regulations, kept delaying and delaying providing further details and
clarification. So, the Center went back to court and we brought a
contempt of court motion based on enforcement never having begun in
the area of athletics. To this day, I meet very prominent lawyers and
people who had served in both HEW and the White House in
Republican and Democratic administrations, because by now we’re into
the Carter administration, who remember being lobbied by Notre Dame
and by Michigan and by all of these coaches and university presidents
over Title IX and athletics.
In fact, in 1975, Caspar Weinberger was Secretary of HEW, and when
he went to the Hill during the review of the regulations, he testified that
he had no idea that the biggest issue facing the country was Title IX and
football-there had been an avalanche of comments, requests for
meetings, pressure over their inter-collegiate athletics policies.
And you look like such a nice lady.
Right. I was ruining the fabric of America! I was attacked for trying to
turn women into men by making them athletes on talk radio shows that
existed even in those days, which certainly took me aback. It was
argued that strong policies would mean the demise of colleges and
universities because alumni would never give any money if their schools
didn’t have winning football teams. The schools argued they couldn’t
possibly divert resources to women’s athletics, and worst of all, we were
trying to build women’s athletic programs that women didn’t even want.
Women never had played athletics, so why should we ever think they
want to now? A contempt of court hearing was held in 1979, and by
then we were dealing with the new Department of Education. The
general counsel for the Department of Education was Jodi Bernstein, Pat
Wald’s roommate at Yale Law School, a wonderful pioneer woman
lawyer. Shirley Hofstetler, was the first Secretary of the Department.
And the head of the Office for Civil Rights was Cindy Brown.
At the hearing, the lawyer representing the Department of Education
committed to the judge that the Department would issue a policy
clarification promptly and start processing these athletics complaints to
avoid a citation of contempt of court. And they did. The Department
issued the now widely-cited 1979 policy clarification, which was very
strong. It has become the basis for enforcement of Title IX in intercollegiate athletics from then to now. I have to say in all modesty for
the Center and for my own work, it’s one of the most important things I
think we have done, and over all these years from that beginning lawsuit
we have been involved in virtually every case involving Title IX that has
gone to the Supreme Court in every area, and in almost all the major
inter-collegiate cases, and in dealing both with congressional as well as
administrative actions. The Bush administration was committed to
weakening the 1979 clarification.
This Bush administration?
This current Bush administration. The 1979 policy clarification had
been challenged in court and every circuit to consider it, now about nine,
has upheld it. The Center has been involved in all the challenges
through all these years. Brown University tried to get the Supreme
Court to review and overturn the clarification, but failed.
When the Supreme Court refused to take the case, the higher education
community was shocked, even though there was no split in the circuits.
–they simply couldn’t believe that these strong policies were truly going
to have to be taken seriously.
That it wasn’t just an experiment.
Exactly. And they still were arguing that even with the explosion of
women and athletics and how proud the country was with the women’s
World Cup soccer team and the Olympics and women’s scholarships
and Little League and girls playing soccer, that Title IX is taking slots
away from boys who really are the ones who want to play.
When Dennis Hastert moved up to become Speaker of the House, we
were told he was promised by the Bush administration that it would
weaken the 1979 Clarification. In the House he had been one of the
leading foes of Title IX for many years and repeatedly introduced
legislation to weaken Title IX’ s coverage of athletics, but the public
support for Title IX was too great to allow for the passage of any
legislation so the preferred route was to weaken the clarification
So the Department started to hold hearings around the country with the
stacked question of whether Title IX was hurting men’s sports, and
those hearings proved to be galvanizing for women athletes, coaches,
parents all over the country in support of Title IX. We worked with
many across the country and I actually testified at the first hearing.
Right before the 2004 election, when Bush was up for re-election, on a
Friday, late in the day, during a period in March when many colleges
and universities were on spring break, the Department of Education
issued a statement that it was not going to change the policy
clarification. But I was quietly advised at the time by some at the White
House that was a victory for then, but not to count on it staying in place
after the election. And sure enough, without any fanfare, without any
hearing, without any notice and comment, after the election, the
administration changed the policy clarification and weakened it
How did they do that, through what mechanism?
They just published further clarification in the Federal Register.
The Department of Education?
The Department of Education.
So they clarified the 2004 ….
They clarified the 2004 retention of the 1979 clarification. There was a
Republican-controlled House and Senate at the time, and the relevant
Committee chairs refused to hold hearings on the change. We are still
fighting on those policy clarifications to this day.
And as for the lawsuit which we brought in 1974, I brought it when my
first daughter, Sarah, was just born. That lawsuit remained in place for
sixteen years. Through Democratic and Republican administrations we
brought contempt of court motions because of persistent serious
enforcement problems, not just related to athletes.
There were similar court orders in place that dealt with race, national
origin and disability discrimination. Ultimately, the D.C. Circuit, after a
series of court orders that kept enforcement and Title IX on track, issued
a decision that Supreme Court jurisprudence had changed and that our
original organizations and individuals could no longer have brought this
kind of case to begin with. Therefore, under the new principles, we no
longer had access to the courts to force enforcement of the law. And
that is the state of the law currently.
And when was that?
That was sometime during the Bush 1 Administration. I remember that
all of the cases involving Title VI, Section 504 as well as our Title IX
case, came together in a contempt of court motion and a hearing was
held when Clarence Thomas was the Secretary of the Office for Civil
Rights in the Department of Education. At the hearing, Clarence
Thomas testified as to the then-current state of enforcement, and why in
his view the court order should be lifted. The district court judge, not a
particularly liberal judge, Judge Pratt, kept the court orders in place. He
said, after having heard the testimony, that he had no confidence that
without a court order, civil rights enforcement would remain in place.
That finding went up on appeal, and the D.C. Circuit then issued its
decision that under new Supreme Court precedent, these cases could no
longer be brought and that the courts no longer had jurisdiction to hear
them. Despite the end of the case, for the 16 years it continued it had
enormous impact-getting Title IX enforcement started, continuing it
when there was government unwillingness to go forward such as in
athletics, and prying loose regulations and policies that remain in place
to this day. That case launched our efforts to secure Title IX
enforcement across the board-in the courts, in Congress, in the
Executive Branch and with schools, parents and students directly.
We’ve had two recent Title IX Supreme Court wins that were Center
cases that I played a major role in. The most recent Title IX case that
the Supreme Court has taken was in Sandra Day O’Connor’s last term.
It was a Title IX athletics case, in which a girls’ high school basketball
coach in Alabama, Roderick Jackson, complained to his school that the
girls’ team was treated as second-class. The team had to practice in an
old, unheated gym. Its practices were always scheduled after the boys,
at more inconvenient times. Even their games had to be scheduled
around the boys’ team’s practices. The girls had no trainers. They
didn’t even have access to the ice machine, so that if the girls got
injured, no ice was readily available. And the list of inequities went on
and on. When the coach complained, as he described, “up the chain of
command,” he kept thinking, if he just told people what the inequities
were, they would take care of the situation. But what they did was to
fire him as the coach. He sued and ended up representing himself. The
legal issue in the case was whether Title IX’ s prohibition against sex
discrimination covers retaliation against someone who complained of a
possible Title IX violation. The question applied to the coach in this
case, who complained on behalf of the students on his team, but the
question presented was so broad that it also applied to whether even the
students themselves would be protected against retaliation if they had
We won that case, 5 to 4, and the opinion that Sandra Day O’Connor
wrote for the majority held that Title IX would be stripped of its
meaning and effectiveness if protection against retaliation for those
seeking its enforcement was not part of its scope. That central victory
for Title IX was also one for Title VI, Section 504, and the Age
Discrimination Act because those statutes are all modeled after each
Another big 5-4 Title IX case that the Center won with Sandra Day
0′ Connor on our side held that Title IX protects students who were
harassed by other students. It was long-established that an employer can
be held responsible for dealing with co-worker harassment under Title
VII. The question in the case we won was, under Title IX, if a student is
harassed by another student, can the school be held responsible. The
Supreme Court held, with Sandra Day O’Connor again writing the
opinion, that when the harassment is severe and pervasive enough to
interfere with the educational opportunity of the student, and when the
school has actual notice of it and exhibits deliberate indifference and
refuses to address it, the school can be held liable. Four Justices
dissented, writing that even under those conditions (which were far
more stringent than apply in employment), the school still should not be
held liable. I was second chair in each of these arguments, and proudly
display in my office the quill pens I got that were at the counsel table in
the Supreme Court.
There are a number of cases in the Supreme Court dealing with
retaliation in this term that have yet to be decided, where our Jackson
retaliation case is being cited. One is a case that comes up under age
discrimination, but the principles of the Jackson case apply, and we’re
involved in that case. And, we’re dealing with major harassment cases
under Title IX currently. Of course, what will happen in the future, with
these narrow wins, is one of the questions and challenges that we’re
I’ll tell you about another very early project involving Title IX
enforcement that I started working on that also continues to this day to
be a major effort and concern of the National Women’s Law Center.
The first, the WEAL case-it’s Women’s Equity Action League, et al.-
is the case I’ve been describing about non-enforcement of Title IX and
other anti-sex discrimination protections that lasted all these years.
A second case that I basically starting to work on in 1973, involved a
practice that was then very common, and also has carried forward in the
Center’s work today. It addresses the discrimination against women
based on pregnancy and pregnancy-related conditions. At that time,
employers provided health insurance and disability insurance, very
comprehensive insurance that covered all conditions, but routinely
excluded maternity coverage.
Yes. I’m very familiar with that case. I was a union member at that
Yep. So the IUE, the International Union of Electrical Workers, had in
its general counsel’s office a real hero of the law, a woman named Ruth
Weyand, since deceased, who had been involved in the labor movement
since the 1940’s. She was a very senior lawyer in 1973, and the women
union members who were pregnant came to her when they were
disabled because of a complication of pregnancy or because they were
delivering. They had no insurance disability protection. If their coworkers were in a fight on Saturday night and got injured, if they had
elective surgery, if they were in a skiing accident, they got disability
coverage. But, if a woman had hypertension and had to be laid up
because of her pregnancy, she got no salary protection through disability
insurance. And when a woman went into the hospital, her hospital and
doctor’s costs were excluded, whether the pregnancy had complications
or was routine. Employer health insurance at the time also routinely
excluded pregnancy coverage.
Right. I had my daughter in 1969. That was it. I was a member of the
International Typographical Union. There was no coverage.
Right. The idea was that pregnancy was your business, your problem,
your choice, and so you paid for it. While extremely difficult to find,
there were some insurance riders an individual could buy to cover
pregnancy. But the only people who bought the rider were the people
who thought they were going to get pregnant. There was no sharing of
the risk the way there is in insurance generally. So, for example, when
you pay your insurance premium as a 20-year-old, you’re probably not
going to get sick, but you’re helping to share the risk with those who are
older. You may not get a heart attack, but you’re helping to cover those
costs. The only people who would buy a pregnancy rider were the
people who thought they might get pregnant, which made it so
expensive to buy that nobody bought it, since they might as well just
save their money for the pregnancy.
So Ruth Weyand brought this case against General Electric, and she was
working on this case all by herself. General Electric, of course, had a
major law firm with substantial resources at its disposal defending the
case. She had filed a complaint in the Eastern District of Virginia with a
wonderful judge, Robert Mehridge. She was pulling the facts together,
pulling the legal argument together, trying to figure out how she was
going to frame the case. This issue had never been raised as a Title VII
employment discrimination violation, ever, and she was in need of help.
So I discussed with the lawyers at the Center the prospect of my
becoming co-counsel with Ruth. There was concern at the time that as a
non-profit public interest law firm, being co-counsel with a union might
not be the best use of Center resources, because the union had resources,
and the idea of a public interest law firm was to provide legal assistance
to people who couldn’t afford to pay. So we decided that I would
participate as counsel to amici and represent NOW and Women’s Equity
Action League again and a few other women’s organizations, but in a
very active way.
I got some of the lawyers at the Center to help, and we wrote the first
brief in the case, a pre-trial brief, describing the legal theories of the
case that we filed in district court in Virginia comparing pregnancy to
other physical conditions that were covered by insurance. GE argued
that pregnancy is elective, we countered that when it’s disabling, it’s no
more elective than a ski accident. It’s no more elective than cosmetic
surgery. Complications of pregnancy obviously aren’t elective at all,
and in the case of routine pregnancies that all have some disability
period, we analogized to the other kinds of disabling health conditions
which might have come as a result of something done voluntarily. That
was true with elective surgeries that were covered, fights that led to
injuries that were covered. We dissected all of the arguments against
coverage and found analogous conditions that were covered.
Hold on. I think we’re getting to the end of the tape. We’re pretty
close. Do you mind if I switch now?
Ms. Greenberger: Sure.
TAPE 1, SIDE B
Okay. Let’s start when you get ready to roll again. I think we’re in
So we filed the very first brief setting out the context of why it was sex
discrimination under Title VII’ s prohibition against sex discrimination
in employment to provide these insurance benefits when all of male
employees’ health care needs were met, but this very key aspect of
women’s health care needs was not met. We won in the district court. I
also helped, working with Ruth Weyand, to get the Equal Employment
Opportunity Commission to agree with our interpretation of Title VII
and to come in on our side of the case, which they did. We won in the
Fourth Circuit. General Electric petitioned to the Supreme Court, and it
took the case.
During this period, another case had been brought in California under
their state disability insurance plan. There were a handful of states in
the country, then and now, that provide disability insurance for workers
who can’t work because they’re disabled. And, like GE’s plan, they
were very extensive in the conditions covered except for pregnancy.
Equal Rights Advocates, based in San Francisco, challenged that
exclusion as sex discrimination under the state constitution in state court
in California. The California constitution was interpreted by then to
provide stronger protections against sex discrimination than existed in
the federal constitution. But another case was brought by another entity
in federal court under the U.S. constitution, and the ERA case got
removed to federal court. This constitutional challenge moved more
quickly than the Title VII challenge against GE, which was unfortunate.
The Supreme Court took the case. It was called Geduldig v. Aiello, and
the Supreme Court ruled in that Geduldig case that there was no
unconstitutional sex discrimination because pregnancy is a sui generis
condition and discriminating on the basis of pregnancy is not
discriminating on the basis of sex. The Court acknowledged that only
women get pregnant, but stated that there are also non-pregnant women,
and therefore the discrimination is not sex-based.
So, by the time the General Electric case got up to the Supreme Court,
the Geduldig case had already been decided. The Supreme Court
overturned the Fourth Circuit, and held that GE’s practice wasn’t a
violation of Title VII because, since it’s not sex discrimination, it
doesn’t fall within Title VII’s prohibition against sex discrimination.
After the decision, we turned to Congress to get an amendment to Title
VII that would overturn Geduldig’s interpretation of Title VII’s
prohibition and to explicitly state that sex discrimination included
discrimination on the basis of pregnancy.
So, similar to our Title IX work, I ended up getting involved with
legislation as a core part of our employment work early on. Working
with a broad coalition, we got the Pregnancy Discrimination Act of 1978
passed. I worked very hard on that legislation with a broad coalition of
people and organizations, including Ruth Bader Ginsburg, who was still
at the ACLU Women’s Rights Project at that time. And then I worked
with the Equal Employment Opportunity Commission to get the
implementing guidelines on the Pregnancy Discrimination Act.
Securing enforcement of the Pregnancy Discrimination Act is still a
central piece of what we work on today, both to protect pregnant women
against discrimination in the workforce, and also to assure equality in
the provisions of benefits for pregnancy-related conditions.
After the Pregnancy Discrimination Act passed, employers began to
cover pregnancy, and, if you ask young women today, they are shocked
to hear that it wasn’t always so. Interestingly enough, if you go into the
private market and you want to buy individual insurance, a lot of those
plans still have riders for maternity insurance because Title VII does not
apply to the non-employer based individual market. With my Center
colleagues, I am working today to cure that problem. In addition,
another problem arose when employers added prescription drug
coverage to the health plans they provided. Employer plans often
covered all prescription drugs except contraceptives. We were
determined to do something about that as well-and the impetus came
during the Clinton Administration in the context of the debate around
health care reform.
Under the Clinton plan, the issue arose immediately of what would be
included in a standard benefit package to be available to everyone.
And, of course, I knew from my past work on insurance coverage that it
would be important for the National Women’s Law Center to work to be
sure women’s health needs were protected. Clearly, we needed
reproductive health needs covered, including pregnancy, termination of
pregnancy and contraception. But, beyond reproductive health, there
was very little research or analyses that had been done on women’s
health needs broadly. Of course, the Clinton health plan never did come
to be, but out of that effort I wanted to create a widely-used document
that would identify key women’s health indicators. Out of that effort
came a women’s health report card that we created, first with the
University of Pennsylvania Medical School and now with Oregon
Health and Science University.
That’s great! Now, every few years we issue a national women’s health
report card that lists key indicators that measure the state of women’s
health. We put together an advisory committee to select a broad set of
indicators, and based on these indicators grade and rank each state and
the nation as a whole on how women are faring. We also collect key
health policies that can advance women’s health and identify which
states have adopted them. And we just issued the latest Report Card a
few months ago. It’s distributed all over the country. It’s used by
Offices for Women’s Health all over the country, as well as by
advocates and researchers. And it provides a key base for the Center’s
own women’s health work. When we learned that employer-provided
plans offered extensive prescription drug benefits that covered
everything that men needed but excluded contraceptives just like they
used to exclude maternity benefits, I thought “Aha!” That’s a violation
of the Pregnancy Discrimination Act. Because clearly contraceptives
are related to pregnancy. The ·final spur to action was when Viagra
came out. It was automatically covered by all of these health insurance
plans, yet contraceptives were routinely excluded by these plans.
And that provided the political impetus and the outrage to make people
pay attention. So I worked with Center colleagues to put together a
petition of about 70 organizations, to the Equal Employment
Opportunity Commission, because like the General Electric case, 20-
plus years before, there had been no legal cases or regulations on the
issue. We at the Center developed the legal argument just as I had in
1973, and we asked the EEOC to issue policy guidance that it’s sex
discrimination for employers to exclude contraception from their
otherwise comprehensive drug benefit packages that they gave to their
employees. We got such a ruling from the EEOC in 2000 and then
began to litigate cases in the courts and to work with insurance
companies to change their policy so that, instead of only including
contraceptives when employers asked for it, they routinely put it into the
package. And the truth is, many, many employers had never paid a bit
of attention to the fact that it wasn’t in their packages to begin with.
And there were a number of studies that show that it cut costs to include
So I and others at the Center worked with a broad coalition to also get
the federal government to include it in the insurance provided to its own
employees. In the first year, the Office of Personnel Management
worked out an arrangement with the private insurance companies that it
would make up any costs of the new coverage in the next year. In fact,
the insurance companies didn’t raise the premiums because there was no
I secured a letter from the Office of Personnel Management officially
confirming that that was their cost experience. And the Center has been
a part of the effort to get state laws passed that would require the
inclusion of contraceptives in private insurance for the individual market
where Title VII doesn’t apply.
So that the General Electric case and the principles that we began
working on in 1973 are still a very big piece of our program in 2008.
The big victories of the Center that I’m describing are the ones that I
myself worked on and have been a driving force behind over the years.
But, I’m proud to say, the Center now has a staff of about 60, there are
many areas where I am not the moving force, and am very proud of
what the Center has done. I am co-president of the Center with Nancy
Duff Campbell, and she, herself, brings enormous resources and skills
and imagination. And I believe that she’s being interviewed herself.
So, I won’t really go much into her sphere at the Center. But one area
that we worked on quite a bit and still do is the issue of tax treatment of
dependent care and the tax code in general and its treatment of issues of
concern to women.
Like single-headed households.
And we had a large part to play in pressing for, not just being able to file
as single or married, which gets you a family deduction, but also adding
a new category of head of household, which would apply to women who
are single heads of households, and that was very important. A second
big issue was to be sure that dependent care, child care and elder care
expenses weren’t treated any worse than oriental rug business expenses
or yacht business expenses or three-martini lunch business expenses.
And we pressed very hard to get the deductions and credits for childcare
and dependent care. When we first succeeded and got those added
deductions and credits in the tax code, we found that not that many
people took it. We learned that there was no line on the short form for
the dependent care credit. And, of course, most middle and lowerincome people in the country use the short form or the E-Z form which
then came along.
So we put a petition together to the IRS to get them to add a dependent
care line to the short form. And the guy who was there had told the
Center that no one had ever petitioned the person responsible for tax
forms before, and he was thrilled to meet with us. But, of course, the
point of the short form is to keep it short-which means not putting
everything in it. And he said he was sorry, but other things took
Elizabeth Dole was in charge of constituency outreach in the Reagan
White House at the time. She thought this was a terrific issue. We
organized both Republican and Democratic women in the Congress to
write letters to the IRS to put it on the short form, which they ultimately
did. Millions of dollars of these tax credits and deductions began to be
taken by people all over the country based on this policy. So, again, a
lesson we learned from those early days that still applies is that these
tools are interrelated, litigation is essential, getting laws passed is
essential, getting administrative enforcement is essential, and you are
always going back and forth between them.
You know, you try to explain that to young lawyers coming out and into
the Washington scene, and it’s always a big shock to them to find out
that they won’t just be doing one thing hopefully, that they will be doing
things on the Hill–they might have to do things on the Hill, they might
have to do things with the agencies, they might be in the court, they
might be in the states, they could be all over if you want to do a total
package of effective representation. Especially in such a broad and
Right. And so Sheila, picking up exactly on your point, while we started
with very much of a federal focus, and we certainly have a major federal
focus today, it’s very limiting to look only at the federal government and
to ignore the states. You need state experience often and
experimentation in the states to see whether adopting a policy on a
national scale makes sense, and you need state advocates helping to
press for federal policy.
And sometimes you want the dual enforcement mechanisms in the
federal system and the state system. So, for example, right this minute I
targeted our work not only to get the Title VII contraceptive coverage
principles enforced in federal court, but in state courts as well. Every
state but one has its own fair employment practice law that prohibits sex
discrimination in employment, but most don’t have policies regarding
So the state courts and the state enforcement agencies are not really
available to deal with these issues, and we want people to be able to go
into state courts and use the state mechanisms as well as the federal
mechanisms. There is now a major backlog at the EEOC, but there are
also state enforcement agencies that could also resolve complaints
without filing a court case. So we are trying to get all of these state laws
interpreted to include the protections that we have succeeded in securing
on the federal level.
Now, let’s see, I have covered some of our employment work, some of
our Title IX and education work, some of our reproductive rights work.
There are many, many other kinds of things that the Center and I have
worked on that time prevents me from describing. But I must mention
that now, in 2008, one of the very big issues I am working on and the
Center is focusing on is health care coverage and health care reform.
Just as our work in ’92 borrowed heavily from all the work we had done
through the ’80’s and the ’70’s, we lead a national women in health
coalition based on the experience and expertise we have gained over all
these years. We expect health care reform to be addressed in earnest in
2009 and beyond, and, therefore, the Center not only formed and now
leads a women’s health coalition, but we have begun to research and
issue reports and analyses of different possible approaches and what
they would mean for women.
I should say also that, while the bulk of our program staff are lawyers,
we now have policy people on our staff as well who have quantitative
skills so they can analyze Social Security policies and what they might
mean for women, different health coverage mechanisms and what they
might mean for women, .and high school dropout statistics and see the
problems affecting young women as well as young men who drop out.
Looking at the data and looking at what different policy implications
might mean to women at different stages in their lives or different
economic circumstances is an important part of what the Center does
now. As the federal courts have become less hospitable to some of the
cases that we have brought, we are more involved in state litigation and
also in public policy both in Congress and in the states. We still
certainly do bring federal cases, but we look at policy development in
many other arenas, and that is where these other skills and talents of
staff are essential.
We also now have a field outreach team of people who are skilled in
Internet and chat rooms and webinars and ways of reaching advocates
all over the country that can broaden our reach and effectiveness. We
have thought over the years of whether we ought to have state offices,
but we worried about the expense and the difficulty of keeping a
cohesive unit. Now, with the communications technology improving so
dramatically, we have opted to begin to invest in these kinds of
techniques and to refine and improve our communications tools and our
field outreach tools. So our staff now includes many different
disciplines and areas of expertise than I never would have thought
would be the case when I started the Center. We have a growing
communications team as well, because whether operating in the courts
or in legislatures, or in agencies-if the public is not behind us, then the
change we seek is either going to be fleeting or non-existent.
To tum to a last example of our work, I should really discuss our work
on constitutional protections for women and also its relationship to our
work on judicial nominations. In 1973, when Roe v. Wade was decided,
one of the young lawyers at the Center for Law and Social Policy ,who
started at about the same time as I did, George Frampton, had clerked
for Justice Blackmun and had worked on Roe v. Wade. As I’ve shared,
in those early years when I was the only women’s rights lawyer at the
Center, I was very, very open to and looking for opportunities to work
with the other wonderful young lawyers at the Center. Together,
George and I decided to hold a conference on the future of Roe v. Wade,
how the opinion was structured and what legal issues and controversies
might arise in the future. Roe v. Wade, applying the right to privacy to
women, was one major cornerstone of constitutional protection for
women. The second was formally recognized in Frontiero v.
Richardson, a 1973 decision that was also Ruth Bader Ginsburg’s case,
which for the first time explicitly said there was heightened scrutiny
under the equal protection clause for government-based sex
discrimination. And so those twin pillars of equal protection and the
right to privacy have been mainstays for our legal work ever since.
When Robert Bork was nominated to the Supreme Court, he had a
history of legal writings that were highly critical of both. He did not
think there was any right to privacy in the Constitution and, of course,
was highly critical of Roe v. Wade. But he was also dismissive of Craig
v. Boren, decided in 197 5. It was the key sex discrimination case after
Frontiero that established an intermediate tier of scrutiny for
government-based sex discrimination under the equal protection clause.
He wrote an article about how ridiculous that case was. Well, most
people had never heard of Craig. Of course, they had heard of Roe v.
Wade, but they knew nothing of Craig v. Boren. But we saw in Robert
Bork somebody who had frontally challenged the very constitutional
underpinnings of women’s legal rights. And so, for the first time, after a
lot of agonizing and analysis, the Center staff and the Board determined
that we would take a position on an appointment. I felt very strongly
that we should, and took a laboring oar in preparing our analysis and
public announcement. We had never taken a position on any
governmental appointment or judicial appointment until Bork. We did a
major analysis of what his writings meant for women and held a press
conference to release our findings. Our conference room was packed,
our report got enormous attention. And it was one of the largest press
conferences I had ever participated in at that point. Almost nobody,
until we brought it to their attention, understood what Bork’s attack on
Craig v. Boren meant to women’s legal rights.
I will never forget a member of the Senate Judiciary Committee who
was key at the Bork hearings-a senator from Arizona, DeConcini.
Senator DeConcini was seen as a swing vote on the nomination.
Yes. Dennis DeConcini had three daughters. And his wife, Susie
DeConcini, was a very strong Equal Rights Amendment proponent, and
he was a very strong Equal Rights Amendment proponent. He was also
anti-choice and was not going to oppose Robert Bork on the grounds
that Bork was critical of Roe v. Wade. On the other hand, he was
concerned about the right to privacy. However, he was very suspicious
that people were using Bork’s opposition to the right to privacy as a
front for actually opposing him because he was critical of Roe v. Wade.
When we brought to his attention that Bork actually did not believe that
the 14th Amendment reached sex-based discrimination, even with the
lesser protection the Supreme Court offered in Craig v Boren than
would apply if the Equal Rights Amendment were ratified, he was
shocked. He could not believe that that was true, and challenged
whether our analysis was accurate. We showed him Bork’s writings, we
explained the importance of Craig v. Boren, I briefed him personally, I
briefed his staff. He was convinced we were right and that issue became
his major line of questioning of Bork at the hearings. When he
ultimately voted against Bork, a major reason why he did so was on the
basis of Craig v. Boren and equal protection. Fair treatment of his
daughters, his wife, the importance of the government treating citizens
equally weighted heavily on him. Since then, nominees have been
routinely asked about their views of equal protection and its application
to sex discrimination.
And while, of course, many have refused to answer questions on Roe v.
Wade since Bork, they all have said they support the middle tier
standard of sex discrimination under the Constitution and they would at
least apply that, if not anything stronger. So it really was a seminal
moment for bringing to the public’s attention what legal rights for
women really mean, and it has affected confirmation hearings ever since
up through Alito and Roberts. Now, of course, what confirmed Justices
mean by upholding heightened scrutiny is another story.
But it sent a message to all of these justices and judges who get asked
those questions that the body politic, in the best sense of the word, the
majority of the country, would not tolerate an elimination of equal
protection for women under the Constitution. And that is, I think,
something that I and my Center colleagues can look back on with pride.
Because of our legal expertise, our understanding case law and
litigation, our having an understanding of the political process, the
confirmation process, we could put that all together and bring it to bear
on behalf of women. And that became, since Bork, something we have
done with respect to key judicial and executive branch nominees. I have
had the major responsibility for this work. We have done it sparingly;
we don’t take positions with respect to most nominees. We do evaluate
now every Supreme Court nomination. We did get involved with the
Thomas nomination. I was invited by the Judiciary Committee to testify
at his confirmation hearings that were held before Anita Hill came
forward. We have been asked to brief senators repeatedly-at large
sessions and small; because, when you think about what women’s legal
rights really mean now, they are so broad based that they encompass
many key legal protections for all. They cover equal protection, and
how it applies to all the groups who rely upon it, whether it is
affirmative action principles or non-discrimination principles to begin
with. Right to privacy and what does that mean? Health and safety,
Congress’ ability under the Commerce Clause to pass the laws such as
Family Medical Leave, Violence Against Women Act, and health care.
So we have been seen as a leader in the coalitions around judicial
nominations because of our broad understanding of the interpretation of
a whole wide range of legal rights and responsibilities. And I have
chaired or co-chaired a number of these coalition efforts over the years.
Amazing. Now was the Bork nomination, was that 1989 or 1990?
It was in the, I think it was probably ’87. You know, there are a couple
of other things, Sheila, that I would feel badly if I didn’t say about the
Center. When I first got started, the Center for Law and Social Policy’s
board was all male, and, needless to say, having a Women’s Rights
Project at the Center was a wonderful thing, but it seemed inappropriate
for it to be directe~ by an all-male board. Of course, the board over the
years became more diverse, but we started a Women’s Rights Project
Advisory Board in 1973, with Brooksley Born as the chair and Mama
Tucker as an Advisory Board member. Both became Center for Law and
Social Policy Board members, too. In those days, women lawyers were
so few and far between and by and large those women were
extraordinarily supportive of each other. That has been a hallmark, I
think, of women lawyers in Washington, at all levels. As they became
partners in law firms over the years, the women partners began, from
then to now, to meet together. When I started at the tax firm, women
associates were so few and far between that we started meeting together.
Yes. When I was at Caplin and Drysdale, as I said, one of our first
issues as young women associates in firms in D.C. was whether we
should demand to be allowed to wear pantsuits to our offices.
I remember that fight. [Laughter].
When we formed our Board, Mama was working for the ABA.
Brooksley was at Arnold and Porter, where she had been made partner
working part-time, which was absolutely unheard of in Washington,
and, as far as we know, we don’t think there were any major firms that
had done that anywhere in the country. The two of them, very
successful budding lawyers, taught the first women and the law classes
at Georgetown and Catholic and maybe a couple other law schools in
Washington. We were so, so fortunate that these pioneering women
lawyers in the late 60’s, they, Sally Determan and others, had a
commitment to women’s rights at the same time that they committed to
building their own careers. And so in 1973 when I went on my rounds
of meetings to figure out what I should work on, it wasn’t hard to
identify who the people were to talk to who could help me come up with
an agenda. Brooksley and Marna were both very willing to be involved
with the Women’s Rights Project. Brooksley has now been the chair of
the National Women’s Law Center Board, with a break during her
government service, since we became independent in 1981, as she had
chaired the Women’s Rights Project Board si~ce 1973. And Marna now
is no longer on the board but only after over 30 years of service, because
she went on the ABA Judicial Evaluation Committee and felt that it
would be a conflict for her to remain on our board. As for our own
relationship, Sheila, yours and mine, it’s not such a surprise that we
would have known each other over all these years, that you, such a
prominent woman lawyer, would be involved and supportive of the
Center, that I would be able to get to know you, and that you would be
part of our original network.
It’s amazing, isn’t it?
It has enriched our lives, I think, because the successful women lawyers
in Washington have included such wonderful women; it’s part of what
has been so rewarding about my career, for sure, to get to know people
Oh, you’re a wonderful, sweet person.
It’s really true. To know that people whom you genuinely like and
respect enormously are pushing for you, wish you well, want to help,
and care about you. That in between all their work demands they will
take time out to do interviews like this and even digress a little bit to talk
about what’s happened with our kids or ….
It’s a privilege.
It’s a wonderful part of what we’ve been able to do in growing up
together, whether you’re working on women’s rights per se or not.
That’s an aspect of the women’s legal community in Washington that
has been so fabulous.
It is really a very unique group that survived…. You look back, you see
the 60’s, the 70’s, the 80’s, the 90’s, and now we are almost to the first
decade of the millennia. It’s just amazing, and you think, have I really
been doing this this long, and you think of all the wonderful people you
have known and many, many magnificent women and the great men
who are out there who said, hey, yes, let’s do this, this is an idea whose
time has come, let’s do what we can to support it.
It’s so true, and I don’t think-you know, none of us had role models.
None ofus thought, okay, now what do you do if you are in your
twenties, what do you do if you are in your thirties, what do you do in
your forties, what do you do in your fifties, I hate to say it but now it’s
up to sixty.
So, you know, it has its implications into the future. First of all, as
women of our generation are starting to retire from their firms or
wherever, they’re not ready to retire from the practice of law or from
making a difference. One of the exciting challenges for the Center is to
figure out how to harness these women’s willingness to help now they
even have even more time to offer. Ifwe could figure out how
How to plug it in.
… to use that time. It is an extraordinary resource. You mentioned the
wonderful men, I should also add a bit on the major role men played
when the Center went from a Women’s Rights Project of the Center for
Law and Social Policy to the National Women’s Law Center in 1981
and what happened there.
We started, as I have explained, with me as the first lawyer. And it
became obvious within 30 seconds that there was more than enough
work to keep one lawyer busy full-time, and so the question became
how to get more lawyers, more help, not only among the young male
lawyers who were at the Center and willing to work with me and willing
to help, but also to add to the actual official staff of the Women’s Rights
Project. The head of the Center for Law and Social Policy at the time
was Joe Onek, a wonderful, wonderful, prominent lawyer in Washington
who remains a stalwart friend to the Center, and Charlie Halpern, who
had been one of the original four founders of the Center with Joe.
The Ford Foundation was the original major donor getting the Center
started. Justice Arthur Goldberg went to Ford with this new idea of a
broad-based public interest law firm, and Rockefeller Brothers
Foundation was the second. But the Ford Foundation was the one that
provided most of the support. When I started the Women’s Rights
Project, Joe and Charlie took me in hand to go up to New York to visit
those two foundations. My hope was to be able to find enough
resources to hire a second lawyer. I met with a young woman named
Susan Berresford who had just started at the Foundation. She was so
junior that she was not even a program associate, which is sort of the
lower level of program staff in a big foundation like Ford. But she
wanted to start a women’s rights funding program, and she gave us a
grant to hire a second women’s rights lawyer. We hired Lois Schiffer.
The Center had also hired another woman lawyer, Margaret Kohn when
they hired me, but not to work on women’s rights. I was very successful
in co-opting her; she worked on health issues, and ultimately became the
third lawyer in the Women’s Rights Project. Although she had other
work assignments, she worked closely with me, and then with me and
Lois, and the male Center lawyers were supportive of her doing so.
When President Carter came into office, Lois left to go the Justice
Department and to work on environmental issues, and she has since
become one of the most prominent environmental lawyers in the
country. But she has remained a personal friend, and a great supporter
of the Center over all these years, in the classic fashion of so many of
these women lawyers that we’ve just been·talking about.
Oh yes, through thick and thin.
Through thick and thin, everyone through thick and thin.
It’s hard to imagine, it’s been going on four decades. It’s astonishing.
Right. It’s really true. Both Margie Kohn and Lois Schiffer knew this
woman, Nancy Duff Campbell, who was at that point teaching law, first
at Catholic Law School and then at Georgetown. So when Lois went
into the Administration, they thought Duffy would be great to come to
the Center and fill Lois’s spot. So that’s how Duffy came. A number of
lawyers left the Center for Law and Social Policy to go into the Carter
administration, including Joe Onek, and the ties to the funding
community were weakened for a time. The Center lost some of its
funding at a time when the Women’s Rights Project was continuing to
grow. And so we ultimately became almost half the size of the Center
for Law and Social Policy-not that we were all that big.
But still … yes.
It did not make a lot sense to remain a project of the Center for Law and
Social Policy at that point. And there were other reasons, in addition to
our relative size, that supported the wisdom of becoming independent.
It was hard, for example, ifwe wanted to do a fundraising dinner, to
secure support to do it as a project of the Center. It was constraining.
But we had no problems working with the Center for Law and Social
Policy and the legal staff, who were wonderful and very supportive. We
had a number of joint projects together. So we talked together about the
· Women’s Rights Project becoming independent, and the leadership of
the Center was totally supportive. We wanted to be sure, for example,
that attorney’s fees that we had secured in our WEAL case, among
others, could go with us to use as a cushion. It was, after all, a little
scary to think about our going off and creating the National Women’s
Law Center on our own. I remember so clearly that Julius Chambers,
who was a very prominent civil rights icon at the NAACP Legal
Defense Fund, came to the seminal board meeting where the Woman’s
Rights Project separation was being considered. He said, “Take the
attorney’s fees, we want you to succeed.” And Arthur Goldberg took
that position as well. The Board agreed.
The Center for Law and Social Policy offices were in a townhouse at the
time. We all stayed in the townhouse, and we shared administrative
· support; but we became the National Women’s Law Center, and our
advisory board became the board of the new National Women’s Law
Center. At the time, Patsy Mink, who had been in Congress and often
called “the mother of Title IX,” was then not in Congress, and she was
on our board. I remember our debating back and forth about what we
should call ourselves. We had to come up with a name. We thought of
catchy names and acronyms, but we finally opted for something simple.
It was going to be the Women’s Law Center. I remember Patsy Mink
saying, “Put ‘National’ at the beginning; it’s going to make us sound
more important; we have to sound serious; we have to sound important.
Call ourselves the National Women’s Law Center.” So that’s how we
got our name, which turned out to be a wonderful name. It sounded like
an organization that you probably had heard of. We began to say we are
from the National Women’s Law Center, and people would say, “Oh,
yeah, I’ve heard of you,” when, of course, we knew we’d never existed
But it sounds like they should have.
Right. Right. So we were the National Women’s Law Center, and we
got this wonderful sendoff by the Center for Law and Social Policy. Our
two organizations have continued to work together over all these years.
And our fundraising dinners became a big success. People are always
surprised to see the number of men in the room. I can’t say, with our
annual dinners, that they’re the majority, but they are very, very
substantial in number. I would say maybe 40% of the audience is men.
The male partners in law firms have supported the Center.
My husband’s come along on numerous occasions.
Yes, absolutely, and men I don’t think feel the least bit as if there’s
anything unusual about being there.
Glad to do it.
Yup. I don’t want to paint an overly rosy picture, but whether these
guys who attend are in law firms or in some of the corporations where
we get support now, or are there as supportive husbands, we’ve had
wonderful male friends and champions too.
Yep. Personally and professionally.
Yes. And Arthur Goldberg was one of my great mentors, as I’ve
explained, but it is really, I think, something about the Washington legal
community too. And I’m not sure it’s totally replicated in other parts of
the country, but there’s been this very wonderful bond of support that
started, I believe, with the core of the success of women lawyers, but
they were able to get their male compatriots willingly to come along, in
just the way that the Women’s Rights Project got started-with these
law students and the women administrative staff standing up for their
rights, but the male lawyers saying, “Okay, sure if there’s enough work,
we’ll do it.”
Let’s do it.
“Oh, there’s enough work, don’t write that memo, get started.”
Yes, go forth.
Go forth, and so that’s where we are. At this point we have had many
generations of law students coming through, and they have now
developed their skills and careers. Now, we are looking at where the
future will take us. Susan Berresford worked her way up through the
Ford Foundation to become the president of the Ford Foundation, and
she was responsible for giving the Center an endowment of ten million
dollars if we could raise five to match it, a two-to-one match, which is
very unusual. We’re at the very, very tail end of trying to get to that five
million; we’re determined that we will do it, and so the Center then will
have an endowment for the first time in our history, and a legacy. I wish
we could have patted ourselves on the back and said, “Well, we took
care of all those challenges. But we know that we’ve got loads of work
· Ms. Greenberger:
ahead of us.” So, the Center is an institution with a future, but that also
creates a source of satisfaction to me.
Well, it works like a living human being in some ways, that the issues
mutate with change but they go on and on forever. It’s too-the issues
are too important to be static. That is, I think, one of the fallacies of
doing business in Washington is that you think, oh, well, we’ve got that
problem solved, but the problems are never truly solved because the
stakes are too high, and nobody’s going to leave it alone.
It’s always amazing to me, the metamorphosis of issues and the remetamorphosis of them. Fascinating.
Very, very true.
Well, it’s been a magnificent experience talking to you and just having
the privilege of getting to know more, you know, piece it together, and
obviously read the reports and all that over the years. But it’s so great to
actually get to know you with this intensity. I feel like I’ve known you
my whole life now.
Well, I feel the same way. It may sound trite perhaps to say, but I think
the rapport that we have for each other is based on tne common
experiences that we now have had an opportunity to identify, but we
instinctively knew were there all along.
It’s amazing. This whole discussion on the coverage of pregnancy, as
an insurance issue. I was so young, and I was so willing to accept. I
was not a lawyer; I was just a union member. I was a union printer for
three years, very young, and I just accepted, well, that’s just the way it
is, I’ve just got to keep marching.
Yep. Well, you know, that was certainly the lesson ofmy growing up.
All those things were things I just assumed were a part oflife, that’s
what you do. That’s the way life is, and it took a very long time to
figure out-wait a minuteThis doesn’t sound right.
As you said, these are issues where the stakes are very, very high.
People do not share power easily. But we are in the middle of a very
historic presidential election as we are talking about this effort to
achieve equality, and it will be debated, I’m sure, for decades, decades,
decades to come. A woman running, an African American running28
these are big transitions.
Heads are spinning-you know, where do I go, what do I do?
Very true. Well, thank you, Sheila …
Well, thank you.
… so very much for doing this. Nobody has ever chronicled my
background and work before, and you’ve been so warm and
encouraging, even about my childhood.
I could say you were the apple of your parents’ eye.
At least one of three apples, but you’ve been great; thank you so very
Well, and now that we have this ready to go, we’ll get it all typed up, get
this to the people in our support services in Philadelphia, back to your
hometown, and get it all together. Then you can read the transcripts top
to bottom, and we can make all the corrections necessary.
Okay, all right.
All right. Thank you again.
God bless you for working with the schedule.