Judith C. Areen Interview 3

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Oral History of DEAN JUDITH C. AREEN
February 26, 2004
This interview is being conducted on behalf of the Oral History Project of the
District of Columbia Circuit. The interviewee is Judith C. Areen, Dean of Georgetown
University Law Center, and the interviewer is Timothy G. Lynch. The interview took place in
Dean Areen’s office on Thursday, February 26, 2004. This is the third interview.
Mr. Lynch: This is Thursday, February 26, 2004. This is the third session in the Dean Areen
Oral History. At the last session you were just about to describe your trip to
Mississippi, and you were just about to describe a very important person.
Dean Areen: This was, of course, Marian Wright Edelman, although at the time she was still
Marian Wright. There may have been other speakers, but she was such a standout
because she had a lot of good information to give all of us about some of the
challenges we faced in the summer of ‘67 in the communities we were visiting.
She was so forceful. You looked at her, and you didn’t see a large forceful
person; you saw this petite young woman. But she was forceful by virtue of her
courage and her passion for what she was doing, what she encouraged us to do.
Mr. Lynch: Do you remember anything about the substance of what she said?
Dean Areen: My memory’s not good enough to give you verbatim, but it was one of those
moments that has stayed with me all these years and will continue to do so. One
of the nice things about life is it comes full circle. She later becomes Marian
Wright Edelman, and I met with her briefly when I was working in Cambridge.
Later, I got the pleasure of getting to know Marian better as a faculty wife; her
husband is Professor Peter Edelman. At different stages our paths crossed.
Mr. Lynch: What year in law school were you?
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Dean Areen: This is after my first year, so it’s summer of 1967.
Mr. Lynch: What was the name of the group for which you worked?
Dean Areen: It’s LSCRRC, the Law Students Civil Rights Research Council, and it was an
organization focused on finding law students who were willing to come and work
in a variety of settings in the South as part of carrying forward the battle for civil
rights. I had been assigned by the organization to the Southern Regional Office of
the ACLU, which was located in Atlanta. I met a very interesting man,
Charles Morgan. He was an attorney in Birmingham; in fact, he was very much
part of the community. As I recall, he made the speech that changed his life at a
junior chamber of commerce luncheon, so he was very much part of the white
legal community in Birmingham. It was just after the church bombing, where
four young girls were killed. He said something no more inflammatory than we
all share some responsibility for an environment in which this could happen. It
destroyed his legal practice. He began receiving death threats. It was written
about in the Northern press. He said he received notes of support from around the
country, but only two job offers. As to the one, there was some encouragement
but it did not work out. The other was the job he took with the ACLU. He found
himself by that circumstance suddenly living an entirely different life than he had
envisioned or imagined. There was a curious range of cases that came into the
office that summer. The other student in the office with me who was also a law
student between first and second year was Norman Siegel. Norman went on later
and I think is best known in legal circles because he was head for a while of the
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New York Civil Liberties Union. During our summer together, he was a student
at NYU. We had a range of cases, including some civil rights matters. There was
one important case involving a doctor, Dr. Howard Levy, who protested against
the war in Vietnam. There was at least one prison case in which an extremely
long sentence had been given to a black defendant for possession, if I recall, of
marijuana. It seemed disproportionately harsh. Here we were, two young law
students, contacting the national office of the ACLU about this injustice that we
thought the ACLU would care about, and they said, “No, actually we don’t have a
position on drug sentencing, so you’re pretty much on your own on that one.” So
I found myself writing on a range of matters that were important, briefs, motions
– we couldn’t argue in court – but we did all the written work. One I remember
well was a case involving privileges at the main hospital in Mobile, Alabama.
They were not directly discriminating, but to have attending privileges at that
hospital, you had to be a member of the Mobile Medical Association, and it
permitted no black members. We argued that the hospital could not rely on a
private discriminatory organization to determine privileges. I worked on a range
of cases that opened my eyes to the fact that lawyers could make a difference, and
it was a learning experience. I look back on it with very warm feelings.
Mr. Lynch: Do you remember the result in that hospital case? This was a state action?
Dean Areen: A state action issue. Our brief went to the Fifth Circuit, and the doctors won their
case. [Foster v. Mobile County Hospital Board, 398 F.2d 227 (1968).]
Mr. Lynch: How did you get the job?
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Dean Areen: You had to apply. I remember being interviewed and again it’s funny how things
come full circle. There were three or four students who interviewed me. One was
a second year named Charles Lawrence, and Chuck is today a member of the
faculty here. We first met when I was being interviewed for this job, and in the
air was the sense that we should all go and do something, something that would
make a difference. There were a lot of students who interviewed to get one of
these positions, even though it was unpaid, or if you were paid, it was like $40 a
week. My parents were not pleased, I will say. It was not that long after the three
civil rights workers had been killed.
Mr. Lynch: What was the nature of your parents’ objection?
Dean Areen: I think it really was safety. There was only one day that I did feel at risk, and in
retrospect, it was because we were very foolish. There had been a complaint
called in from Sylvester, Georgia, and for some reason there was a third law
student who came with us. So, here we are, three young people, one law student
who was African-American, my friend Norman, who was white, and me. It was
not a usual group to drive into town. The issue was about the black community in
the town still being asked to sit in the balcony in the movie theater. We had the
names of some people to visit and talk to in the black community. We found
ourselves being followed as we went through town by the deputy sheriff’s car and
they were carrying visible weapons (shotguns). It was probably foolish to be as
visible as we were. Once we were starting to be followed by the deputy sheriff,
people understandably did not want to talk to us. Fortunately, we were able to
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leave town without being injured or arrested. There were other interesting
moments that summer. One occurred when we visited our prisoner in the
maximum security federal prison in Atlanta because the only people who could
visit other than families were lawyers. That meant they didn’t have many young
people visit the prison and certainly no young white women. We did go and had a
very good talk. There were also lots of conversations, all by phone, with
Dr. Howard Levy. He had first run into problems when he was first assigned to a
military base in the South, I believe it was in South Carolina. He had trouble with
some of the local social customs. He was from New York and more liberal in his
views and friendships than the people around him. Ultimately, he was singled out
and ordered to train Green Berets in his specialty [dermatology]. He was in fact
punished for speaking out against the way some of the Green Berets were using
their medical knowledge to recruit people in political ways. He felt that
participating in this effort would be a violation of the Hippocratic oath. Don’t ask
me the resolution of the case.
Mr. Lynch: No, no, I won’t. There was a courts-martial?
Dean Areen: Yes. It was the ACLU’s case, but we were helping. [After my summer work was
over, Dr. Levy was sentenced to three years in prison. He was released in 1969,
but challenged the provisions of the Military Code of Justice that were used to
sentence him as unconstitutionally vague. Chuck Morgan handled his challenge.
He won in the Third Circuit, Levy v. Parker, 478 F.2d 772 (3d Cir. 1973), but lost
in the Supreme Court, Parker v. Levy, 417 U.S. 733 (1974).]
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Mr. Lynch: Did you get on Law Review?
Dean Areen: I did not get on my first year, because my grades were not good enough. Several
people encouraged me to take the alternative path which was to write a paper. If it
was accepted for publication than you were made a member of the Law Journal. I
wrote about Constitutional limits on the privilege against self-incrimination.
Mr. Lynch: Did you write anything else? Was that paper on the Fifth Amendment that you
wrote published?
Dean Areen: I wrote it and it was accepted, but by the time it had been accepted, another note
came out in the area, so it was viewed as preempted. So it didn’t get published in
the Journal, but it qualified me for membership. It was a great experience for me
to have. When I didn’t get on the first year, you know, I was disappointed, but I
didn’t think much about it. When I walked into Chuck Morgan’s office in
Atlanta, I was expecting a warm welcome. After all I had traveled a long distance
and I was braving certain cultural conventions to be there. When his first
question to me was: “So, are you on the Law Review?” I remember thinking
how much this said about the world.
Mr. Lynch: You were also coming from Yale, too. Did you write anything else in law
school?
Dean Areen: I didn’t publish anything else. I wrote papers for a number of seminars. I took a
good seminar from Professor Ed Sparer who was visiting and his focus was on
health care that’s delivered if you have private insurance versus if you do not. He
arranged for students in his seminar to spend several days observing at Yale New
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Haven Hospital. We’d go in small groups – we didn’t go on rounds, to the
emergency room and we would see all sorts of cases come in and follow and
observe the kinds of care delivered. I ended up admiring the people in emergency
rooms who have an impossible task. Everyone has access to the emergency
rooms of our major hospitals. They are not equipped for delivering ordinary
medical care, but because it’s not available any other way, that’s what ends up
happening,. Many people come in who don’t have an immediate emergency,
although they have a serious medical need and end up waiting hours. I still
remember the experience and writing about it. It seemed to me then that wasn’t
the way health care ought to be delivered in a democracy – especially one with
the resources of the United States.
Mr. Lynch: Did you participate in any clinics in law school.
Dean Areen: There were no clinics at the time. In a way the Sparer seminar was a kind of
preclinical notion. There’s something very effective about sending law students
into the reality of the lives of some of the most vulnerable citizens in the
community as a way to understand their experiences.
Mr. Lynch: And to find the substantive justice in an opinion and that part of it is the business
of socializing people.
Dean Areen: It was clearly pushing students to see the injustices.
Mr. Lynch: It sounds like Section 3 at Georgetown. What were your favorite law school
classes?
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Dean Areen: Well, certainly a class that made an enormous difference – I can’t remember if I
talked earlier about Anna Freud.
Mr. Lynch: You mentioned that you had taken her family law class.
Dean Areen: Right, exactly. I took Anna Freud and Jay Katz’s class in family law. And, it was
a great course. When I first started teaching at Georgetown and you go through
negotiations with the law school about what to teach, one of the possibilities
suggested was family law. I was delighted because it had been such an interesting
course for me as a student.
Mr. Lynch: When you were writing your textbook, is there anything that you can remember
particularly or maybe more interesting about what she [Anna Freud] was teaching,
what she was able to teach at that point?
Dean Areen: She was particularly interested in issues that touched on the lives of children and
how they were treated by the law. She had operated an institution for children
outside London during World War II – it was not an orphanage but children were
sent out of London during the bombing, so they were away from their parents for
long periods of time. Given her knowledge about child development, you could
be sure that she had operated the best possible institution for young children.
Even so, she was very clear looking back on it that it was never as good as
spending time with a family. Even with the best doctors or staff in the world, it’s
not the same. That was certainly something that has influenced my teaching and
writing. I went on to take a course my third year with two other Yale faculty
members, Jay Goldstein and Al Solnit who together authored “In, Before, and
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Beyond the Best Interests of the Child.” All of the books were not out when I did
the first edition of my casebook on Family Law, but one of them was.
It was very important to me to encourage students and other readers of the book to
focus on some of the most difficult issues in family law. Because most family
law cases involve individuals rather than corporations, and because it is very
expensive to litigate, there are few cases appealed. As a result, family law does
not have as developed a jurisprudence as there is in say corporate law. It was also
important to me, therefore, to give students a feel for what happens in family
course cases at the trial level. I spent considerable time locating a transcript of a
child custody dispute– and was able to find a very interesting transcript. The
transcript in the Casebook is a condensed version of the much-longer transcript
that involved many days in court. The reason the transcript was available is
because the parties appealed the decision made by the trial court—and that was
possible only because the grandparents on each side funded the litigation costs.
The transcript is thus a good illustration of what would happen in more child
custody disputes if the parties had money to hire expert witnesses and to appeal
adverse decisions. One of the experts called in the real case was Professor Joseph
Goldstein himself. I changed the names of most participants to protect the family
members and the child—and the expert witnesses too. He’s the one name I didn’t
change in the transcript. So, both in their books and then in Joe Goldstein’s
testimony in the transcript, student who use my book are introduced to their
ideas—particularly that courts should award a child to the parent who is the
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“psychological” parent of the child. The rationale is to provide continuity of care
for the child by the person who is most important in his or her life. In the
transcript Joe Goldstein is asked whether he would push this principle so far that
custody should be awarded to a person who kidnaps a child and keeps him or her
for a long period of time.
Mr. Lynch: I think it would be in case a stranger kidnapping cases where obviously —
Dean Areen: Obviously not, right, but it’s between —
Mr. Lynch: — one parent. Did you think at all during your law school experience about
becoming a law professor?
Dean Areen: I wasn’t sure what I was going to do, and I worried a lot about it by my last year.
And so by April-March of my third year, I was getting very worried because I
literally didn’t have a job. I had made a decision that I did not want to go to a law
firm.
Mr. Lynch: You had done that during your second summer?
Dean Areen: The second summer. That’s right.
Mr. Lynch: Where did you go?
Dean Areen: I divided that summer; I spent the first half working for Ralph Nader, and I had
committed earlier to a law firm, so I moved to them in the second half of the
summer, Irell & Manella, a very good Los Angeles firm.
Mr. Lynch: You did go out to Los Angeles.
Dean Areen: I did. I spent the second part of the summer out there. It was a very good firm,
and I liked the people very much, but it didn’t seem to be for me the way I wanted
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to use my legal training probably in part because of the environment both at Yale
and in the country.
Mr. Lynch: I know it was a very short number of weeks you were there. Were there any other
female summer associates?
Dean Areen: No, and I can’t remember if I told this story. Originally I had accepted a job with
one of the Wall Street firms. I was seeing a young man fairly steadily at that
point, a third-year student, who took a permanent job in Los Angeles. It was at
that point that I thought well I really didn’t want to be across the continent from
him, so at the last minute I went to a faculty member who knew people at this
firm. It was after the regular recruiting season for summer jobs, so they weren’t
at all sure about making an offer. They had no women partners or associates so
they called a meeting of the partnership – this was all recounted to me by the
faculty member — and had a long discussion. It culminated when somebody said,
“Well, I think it would make working at night and on weekends very difficult,” to
which another partner is reported to have said, “Oh, I don’t know,” and it went
through, and they hired me for the summer. I had a terrific time.
Mr. Lynch: If I can get you more to tell more about that I don’t know, it sounds like there is
some interesting experiences there. Who was the professor —
Dean Areen: The kind faculty member. It was Jan Deutsch, who taught Business Law. So,
actually the firm job had all worked out, I need to get the sequencing just right, I
guess by December or January. And Ralph Nader was going around to several
law schools. He wanted to recruit law students from leading law schools. He was
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evaluating a problem area in the federal government, which was the Federal Trade
Commission. I was persuaded by what he had to say, so agreed to spend part of
the summer here in Washington. So, it was my second time in Washington after
serving as an intern between college and law school for Congressman John
Brademas.
Mr. Lynch: Was Ralph Nader half the summer after your second year?
Dean Areen: Half the summer and then the other half with Irell & Manella. So, it’s just half a
summer with Nader.
Mr. Lynch: And after your third year, did you go back?
Dean Areen: No.
Mr. Lynch: Okay.
Dean Areen: That was all the summer of 1968.
Mr. Lynch: The reason I asked is, the Nader book refers to you as a third-year student.
Dean Areen: By the time they were writing the book – when it came out, I was at that point a
third year.
Mr. Lynch: Do you remember what Mr. Nader said, anything that he said, in his speech?
Dean Areen: He at that point had done his study of the Corvair, and he’d been followed by a
detective hired by General Motors. That had brought him into public prominence
more than anything else. He was someone who was very committed to focusing
on problems whether they were consumer protection or the proper functioning of
good government. He had come up with this notion of why not get some law
students to commit their time to this project.
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Mr. Lynch: Did you have an interview with him?
Dean Areen: I must have, but I don’t remember how it all worked. I don’t have a clear
memory, but I think, you know, based on his being there names went in and since
we had to be able to volunteer, it was the lack of pay that cut down on the number
of students who could do it for the summer.
Mr. Lynch: What was that experience like?
Dean Areen: He is very dedicated to his work, and when you’re a young law student, that’s sort
of dashing and appealing. In retrospect it must be a very lonely life, so he’s an
extraordinary person to continue working in the public interest for so many years.
He was understandably in my judgment at that time very cautious about being
overheard, having had private eyes follow him and go through his trash, and so
forth. So, an example of it, rather than scheduling a meeting in advance, sort of at
the last minute, we’d get a call at the end of the day, “Well, we’ll meet,” and his
favorite place was the Scholl’s Cafeteria [on Connecticut Avenue] that’s now
gone. He’d always sit in a different place so the booth couldn’t be bugged. At
the time it sort of added to this feeling of “oh, we must be doing something
significant, because who knows, somebody may care enough about it to want to
overhear our plans,” which were, you know, nothing more than to find ways to
interview people in the agency and to understand how the agency worked. It
wasn’t even that much time because it was only half the summer. I was basically
there maybe six weeks. I remember going along to meetings with Phil Elman,
who was a Commissioner of the Federal Trade Commission. Other times I would
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go with the other law students who would, you know, go off and interview
someone. It was a different kind of lawyering than I’d done for the ACLU, but it
was once again fact finding, organizing the facts, finding a way to pull it together.
Whatever its weaknesses, and there are many, I will say our final report prompted
the ABA to set up a special committee. Robert Pitofsky, my predecessor as dean
at Georgetown, was on that committee; he may have been Chair, I don’t recall.
Their report probably had more of an impact than ours, but the end result was that
Casper Weinberger was brought in as a reform Chair of the Commission.
Mr. Lynch: It’s a long book. Do you remember a particular chapter or particular piece that
you worked on?
Dean Areen: No, because I was not involved in much of the writing as I was there only the first
part of the summer and did not stay on.
Mr. Lynch: We’re back on tape, having solved the problem with the tape recorder.
Dean Areen: The mystery.
Mr. Lynch: We are in your third year, and were you thinking much about what you wanted to
do after law school?
Dean Areen: Right, so I think I mentioned when I got to March I was really very worried and
uncertain. A faculty member, John Simon, sent me to a friend, a man named
Eli Evans, who appears later in the story because he later became President of the
Revson Foundation, which has funded our Women in Law and Public Policy
program at Georgetown for the past 20 years. He was very kind to talk to this
third-year law student who didn’t know what to do in career terms. He gave me
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wonderful advice that I’ve tried to give to third-year students ever since, which is,
“don’t worry about it so much, because, remember, whatever job you take, you’re
probably not going to be there forever.” That took the pressure off because I
realized that’s what I was doing. I was worrying if I picked a job here and it
would shape all of my life and what if it were the wrong choice? Of course he
was right and it was very liberating. I was interested in education. I wasn’t yet
thinking about teaching, just the subject and it grew out of some of the course
work I had done at that point. There were several students who had worked
regularly in the Lindsay Administration, which was then one of the really
interesting administrations going on anywhere in the country.
Mr. Lynch: Why was that?
Dean Areen: Lindsay was elected as a reform mayor in New York. He was personally quite
charismatic. It was a time of heightened racial tension, and he walked some of
the streets. He attracted young, committed people who wanted to come to work
for this person who was a breath of fresh air in a landscape where not a lot of
similarly progressive things were going on. I interviewed and ended up working
in the Bureau of the Budget. There was a wonderful man in charge of the budget,
the Budget Director for the City of New York, Frederick O’Reilly Hayes, and he
had a terrific team of relatively young people. We were each given an area to
work on, not just to look at the budget. I mean there were many financial
professionals who could add up the numbers. But it was to try and think about the
challenges in your particular area. So, given my interest, I was assigned to be one
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of the two people in the Office who looked at higher education. It was a very
challenging time for the City because, just over the past year, there had been sitins
and great unrest; so the resolution of all the sit-ins around City University was
to announce they would begin open enrollment. It was a political compromise
that left impossible administrative challenges ahead. What did that mean? If you
are admitting people who really didn’t have high school level skills to a
university, what would that do? To compound it, there was the question of who
was going to pay for [open enrollment,] because there would be this sudden huge
increase in the number of students coming, whether they went to a community
college or City University itself. There’s often a tension between a major city and
its state, and that was certainly true for New York in the late 1960s. So there was
a tension between Lindsay and Rockefeller. The Budget Bureau examiners, as
junior as we were, were in the midst of this evolving cauldron of debate. It was a
terrific introduction to the city and to some of the politics of higher education.
Mr. Lynch: What were some of the specifics – you were a program —
Dean Areen: Planner.
Mr. Lynch: What were some of the specific things you did in that position?
Dean Areen: We had to come up with estimates, guesstimates I would call them, of how many
students would be coming. We worked with the City University people as they
developed standards. They tried to in effect have different levels depending on
how many challenges it appeared you had in terms of being ready for what level
of work. Essentially, the change was forcing the higher education system to
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provide what the high schools had failed to do, so they were almost put in the
business of remedial education, which did not make the faculty happy, as you can
imagine. It was a very stressful period that I think in some ways is still being
worked through in the City. You would hear people talk about, before this period,
City University being one of the great universities in the country and, for a period
of time, that was lost or put as a secondary goal to this larger goal of equality of
opportunity. It was being fought out and lived as we were part of it. Ours was the
smaller piece, not only of making judgments about how many people, then there
were technical disputes about what did it mean to be in need of remedial
education; because, depending on how the statutes were interpreted, that would
mean you were entitled to state subsidies, so there were economic incentives for
the City to position and categorize in a particular way and that’s what we were in
the midst of.
Mr. Lynch: Where did you live in New York?
Dean Areen: I lived on the West Side, near the Village on Tenth Street, about two blocks from
where the townhouse blew up that summer. Remember they were making bombs
in a townhouse?
Mr. Lynch: Was it the Weather Underground?
Dean Areen: Yes.
Mr. Lynch: Did you know anyone –
Dean Areen: No, fortunately.
Mr. Lynch: So you spent a year there?
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Dean Areen: There? Not even a full year. I started as soon as we graduated so I was there in
late May or early June and by February I had taken another job. I’ll tell one more
story and bombs is the connection. Did I tell you my night mayor story?
Mr. Lynch: No.
Dean Areen: There had been bombs planted in several department stores that summer. It
wasn’t quite clear by which group and which protest, but that was the
environment at the time. This was just before the Blank Panther trial began the
next year in New Haven. There were very raw feelings in many parts of the
country. The Mayor came up with the idea that he would have someone stand in
for him as the night-owl mayor. Basically your only responsibility was to decide
if there were a crisis that night whether to wake the mayor. They didn’t really
need a city official. I mean, the telephone operators were perfectly able to do this,
but it made everybody feel involved. The novelty of the idea wore off pretty
quickly after each of the commissioners, you know, the parks commissioner or the
deputy mayor had spent several nights in City Hall; so it got passed on down the
bureaucracy and you can imagine how far down the bureaucracy it went
(laughing). One night, this program planner from Indiana finds herself serving as
night mayor. I remember I was at dinner with friends, whatever night of the week
it was, up in the Upper West Side, and I went out and got a cab and said “take me
to City Hall.” The driver looks at me and says, “Hey lady, City Hall is closed.” I
said, “I know, but I really need to go to City Hall.” He takes me downtown and I
arrive and go up the steps and there’s sort of a burly, large policeman with ruddy
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checks who looks at me and says, “What do you want?” I said, “Well, I’m the
night mayor.” He looks at me up and down with a lot of skepticism but finally
lets me in. I find myself in this small space and there are the operators at the
telephones who are really doing everything. There’s a little room they set aside
with a telephone and they said it’s an open line, so feel free to call anybody.
There was also a desk and a pull-out couch. So, I brought some work and I called
my mother, I mean, who do you call? You won’t believe this, Mom, and she
didn’t. Finally, it got late; and it was clear nothing is happening, so I pulled out
the bed – and this is the part of the story I remember best. The bed was made up
with sheets were all labeled “Bellevue.” That sort of summarized the whole
strange moment. But the city survived and that was fine and there was no
emergency that night.
Mr. Lynch: What made you go to Cambridge?
Dean Areen: I was contacted by friends. I don’t recall the first call that came, but a project had
been started. They just received a grant from OEO, and Don Rumsfeld was in
charge of the office. It was the big Nixon program to help the war on poverty. A
grant proposal had been put in by a group of academics in Cambridge who were
Harvard faculty. In retrospect I’d better understand that they chose to set up the
project outside the university so they didn’t have to pay overhead to Harvard
University (laughs). As a dean I better understand that. They proposed to study
using vouchers. The focus was on the large urban systems where individual
parents had so little to say about the direction of the education of their children.
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The challenge for our group was to find whether vouchers could be provided in a
way that would promote access and equality rather than avoid it, because the only
use of vouchers until then going back a few years was in some of the southern
states when they resisted the holding in Brown v. Board. In other words,
vouchers were tried as a way to preserve segregation, which the courts did not
permit. Our basic recommendation was if somebody gets public money, even if it
is in the form of vouchers, they should live up to public responsibilities in terms
of equality opportunity.
Mr. Lynch: This was actually just –
Dean Areen: Called the Center for the Study of Public Policy; that was the name of the group.
Mr. Lynch: You were a fellow when you first started and later the Director of the Education
Voucher Study.
Dean Areen: Voucher Study, right. So I was contacted. The project sounded very interesting
to me and I was finding it difficult, just on a personal level in New York. I had
not grown up in a big city. I had friends through work, but not a large group, and
it was pretty lonely. I knew people in Cambridge where the project would be and
it was certainly something interesting to work on, so I agreed.
Mr. Lynch: Who else was there at the time working on the project?
Dean Areen: The Director was a man named Christopher Jencks. He was then on the faculty at
Harvard. He then went to Northwestern for a while. He’s actually now back at
Harvard. He writes broadly on topics of inequality and education and race. There
was a small staff and it was a very interesting project to be part of because the
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government was willing to give us money to set up an experiment. It’s amazing
how life comes full circle, because as you know, vouchers are now very much a
live issue for the District of Columbia. But the federal government was not
willing to put their money into the vouchers; so, to get state money to flow into –
in a way, today we would use the term charter school, but the concept didn’t exist
at the time to support charter schools. You had to get legislation at the state level
to approve state education funds flowing through vouchers into these schools. A
lot of my work over the two years was actually lobbying in state legislatures to
get enough flexibility for there to be a test of vouchers. We got legislation
through, I remember, in Connecticut, in the State of Washington; in California,
we came close and we didn’t in a few other legislatures. What we found was,
even when we got the legislation through, the urban school systems were in such
distress at that point, they couldn’t think about the next six months, much less
taking on our three- or four-year experiment. So it was very, very difficult, but
finally a poor sub-district of San Jose, California, called Alum Rock, did agree to
begin testing the experiment. It was put into place and contracts were let. I
believe the Rand Corporation got the contract to evaluate it, so our work was
more or less done at that point. I never really had thought about teaching myself
until I became part of the project. I was working with a number of people who
were themselves faculty members. I remember I had to consult with several of
the Harvard faculty on some of the legal issues because the issues were novel and
challenging at that time. Is it constitutional if you include parochial schools? For
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the first time I thought about teaching because I began to realize of course one of
the open secrets about teaching: it is a way to go on being a student. It’s a
wonderful opportunity to pursue questions that interest you in depth, and that
certainly interested me. So I made a few inquiries indirectly and word came back.
Nope. First of all, you are too young and worse, you’re a woman. That got my
back up. It’s not the best motivation for making a career decision, but it had a lot
to do with it. I became more systematic about where I wanted to apply and
reached out to several schools and ended up getting an offer here at Georgetown.
I have been grateful ever since.
Mr. Lynch: What was the process at the time? Now it’s called not altogether affectionately
the “meat market.”
Dean Areen: That exists, but you know, it’s still not the most important process at top schools.
The process is still school-by-school. And yes, there is this large professional
meeting where people apply and schools go. But, for a lot of schools, the most
attention is paid to the indications of interest that come in directly to the
appointments committee of the school.
Mr. Lynch: Was that large-scale meeting process in 1972?
Dean Areen: No, there wasn’t.
Mr. Lynch: Before we get there because I just want to sort of tap off that issue. What are your
views on vouchers today?
Dean Areen: Very much what we developed over the two years I was there, which is the term
“voucher” doesn’t tell you enough. I think there are good voucher programs and I
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think there are inappropriate voucher programs–the attempts to get around
desegregation being an example of the later. So, for me it always depends on the
kind of rules you are going to put in play. To the extent you make schools operate
with public responsibility, then I think it is a way to give particularly poor
families some say over the quality of education in their neighborhood school,
because otherwise, you’re stuck, what can you do? If you have a threat of saying
“all right, if you’re not going to make this a better school, I’m going to go to the
school six blocks away or maybe across the city,” that’s what wealthier parents
can do, and I think that’s a good kind of consumer balance. We don’t usually
think about school systems as being monopolies, but they are and there are
problems with that. On the other hand, if you set it up inappropriately, so that
only the kids with – it’s not so much economic wealth, but let’s say those with
parental interest, benefit from the vouchers, and so the public systems are left
with the students who are not only poor, but have families who are not willing to
make the time – that’s a bad result. So, for me it turns on what are the rules going
to be. Because one of the great things about America is our public school system
in the sense of people from all classes and backgrounds and religions being in one
place. I wouldn’t want to lose that.
Mr. Lynch: So it gets right at the issue of tracking?
Dean Areen: Yes.
Mr. Lynch: Do you have a view on that?
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Dean Areen: I benefitted from being in, as we talked about, some specialty classes in
South Bend, but it was not a track, and I think that’s very important. So maybe
you have advanced classes in some subjects, but I think it’s important that people
are in one school and in some classes together. We have so much to learn from
each other, and I don’t want to lose that. It’s one of the values, I think, of the
diversity we have here at Georgetown.
Mr. Lynch: Do you know of a particular voucher program now that meets your test for —
Dean Areen: I’m not current enough to know.
Mr. Lynch: How did you go about applying to law schools? Did you have an article that you
had written? What was the process for you at that time?
Dean Areen: I had written a number of analyses as part of my work for the Project. And one of
them – I don’t know if it had been published yet, but it was certainly a manuscript
if it hadn’t been published – touched on some of these constitutional issues of
voucher programs. I remember it eventually came out in the Harvard Civil Rights
Civil Liberties Law Review. So yes I had examples of my writing, if you will. I
certainly could not get a job at Georgetown today based on the record I had then.
For one thing, I had not clerked.
Mr. Lynch: Did you ever think about clerking?
Dean Areen: Oh, I tried (laughs). I didn’t tell you that story? I didn’t think about it in law
school. No one suggested it and, in retrospect, it’s interesting because it’s clear
some people were encouraged to do it. No women were encouraged. As I began
to think about this, I realized that, and so I sent off some applications.
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Mr. Lynch: This is after you graduated?
Dean Areen: Yes, when I was working on the voucher project, and I remember getting a call
from Judge Coffin in the First Circuit who was very interested and very gracious
about it. You know, I’m wrong, I’m mixing up my time. I did apply, I guess as a
third-year student, to judges in California, that’s right. I remember being
interviewed by a Ninth Circuit judge, whose name I forget, which is a good thing,
who was just very clear: we don’t have girl clerks.
Mr. Lynch: And yet he had gone through the trouble of interviewing you?
Dean Areen: I guess he felt he had to do that. In retrospect, it was true on the Supreme Court
too, not that I would have had the credentials to go directly, but I think I may have
earlier mentioned the story of dinner on the Presidential Yacht Sequoia with Ben
Heineman when I was here in Washington. It would have been 1972 or 1973,
going with a friend who was a clerk then for Justice Stewart for an evening. One
of the women at the party asked Justice Stewart why he had never had a woman
law clerk and he explained, “Well my secretaries wouldn’t put up with it.” It was
just such a different time, so had they been more open to women might I have
clerked? Perhaps.
Mr. Lynch: But you did interview with Judge Coffin?
Dean Areen: No. We just talked by phone. He was very nice, but he had picked his clerks at
that point and then it didn’t work out.
Mr. Lynch: It sounds like you interviewed earlier with someone else.
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Dean Areen: There were two judges in California, and the other didn’t have a problem with
women, but he only hired clerks who graduated from particular law schools. I
think it was Texas and USC and Yale didn’t qualify, so I ran into –
Mr. Lynch: Parochialism. Do you recall which law schools to which you applied for
teaching?
Dean Areen: I knew there was no point in applying if there wasn’t going to be any interest, and
there were no women on the Harvard faculty at that point. They had invited Ruth
Ginsburg to visit. She was on the Columbia faculty and at the end of the visit
they did not make her an offer. I learned this because Columbia is one of the
schools to which I applied and was interviewed, as were several young women;
but, when Harvard didn’t make Ruth an offer and she returned to Columbia, they
were certainly not going to have a second woman on the faculty, so that was the
environment.
In Washington, I may have told you this, I wrote to GW and they sent me a nice
note back saying basically they weren’t hiring. They didn’t have any positions
that year, but they understood Georgetown did. So, when people ask me who sent
me to Georgetown, it was GW. I applied, and they really did take a risk. There
were so many schools that had no women at that point, and I had not clerked, so it
was not a traditional resume. And I’m still grateful.
Mr. Lynch: Which women were on the faculty?
Dean Areen: There was one woman on the faculty when I arrived, Helen Steinbinder, who
retired a dozen years ago. I was not the only woman when I came on the faculty.
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There were two other women who joined with me, Anita Martin and
Monica Gallagher, but neither stayed beyond two years. Fortunately, the next
year Patricia King came to the faculty, and two years after that Wendy Williams;
so, I was never the only woman or even the only non-tenured woman. From the
beginning I had wonderful colleagues, women as well as men.
Mr. Lynch: Who did you interview with when you came to Georgetown?
Dean Areen: I don’t remember specific names. Certainly our tradition is the entire faculty,
although in small groups, so that’s my memory of it – meeting lots of faculty
members.
Mr. Lynch: What is your memory of Georgetown’s physical structure at the time?
Dean Areen: Well, it was this building, so I was never in the building at 5th and E. I never saw
it. And it was quite new, but the land around here was absolutely undeveloped
and it was not a neighborhood you walked around in. Indeed, I can remember
because I would occasionally call for a cab and would give the address and they’d
say, “There ain’t no such address, Lady.” I mean, it was kind of an outpost. It
was very, very crowded, that’s my other memory, because if you can imagine the
student body was larger than it is today since we had 500 in the entering day class
rather than today we have 450. It was even larger but only in the one building, so
it was crowded.
Mr. Lynch: The library?
Dean Areen: The library was the middle two floors of this [the McDonough] building.
Mr. Lynch: What did you teach your first year?
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Dean Areen: Family law and real property. The latter was not my choice, but it was
understood that you had to carry your weight and it was a year-long first year
course. I had only had a semester of property in law school, so I remember
struggling to try to keep ahead of my students, and I’m sure they knew it.
Mr. Lynch: Did you have Charles Reich for property at Yale, the professor who wrote The
Greening of America?
Dean Areen: No.
Mr. Lynch: Do you remember who you had for Property?
Dean Areen: Yes. I had Quintin Johnstone. What I remember at the time is Reich was sort of
very much into the free spirit of the time, as his book suggests. Even at Yale as
progressive as it was, you could not get credit as a student for your property
requirement for taking Reich’s course because it was considered too nontraditional
(laughs).
Mr. Lynch: Was he teaching it as a first-year class?
Dean Areen: Only the first semester is required at Yale, so it could have been but the faculty
said it won’t count, so you can take his class, but it won’t count for your real
property requirement.
Mr. Lynch: Even at Yale this wouldn’t fly.
Dean Areen: Right.
Mr. Lynch: That was your first year of teaching. What was your experience like putting
together a curriculum, and when you were hired, did you have the summer to
work on curricula?
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Dean Areen: I can tell the full story. I interviewed to have started in 1971-72, and so that
would have been the spring of 1971, and was not given an offer. I remember
getting a phone call from Roy Schotland, who was an Associate Dean and who
was amazingly candid since he didn’t really know me. He said, “I’m calling to
tell you about this. You need to understand it had nothing to do with you. This
faculty was not ready to hire a young woman, but we’ve hired five more young
men and that’s going to tip the vote for next year, so would you come and be an
adjunct and teach whatever you want. That way people would get to know you
better, and that’s what you should do.” So I commuted from Boston that Spring
and taught my course. That meant I had put it together so it was ready when I
started full time the next year.
Mr. Lynch: Who were the five young men?
Dean Areen: Let’s see if I can name them. It would have been Pete Wales, Chuck Gustafson,
Bill Vukovich, John Steadman and Paul Rothstein. And Roy was right because
indeed the year I came on full time they made offers to three women, all of whom
accepted.
Mr. Lynch: So you commuted the spring of –
Dean Areen: Spring of 1972, but became full time in the fall of 1972.
Mr. Lynch: What was your experience being in the classroom on the other side of the
podium?
Dean Areen: It was very hard because I was in classes larger than I had ever taken. It was hard
for the students, too. There’s a lot of anxiety starting law school, if you recall,
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and if your law professor doesn’t look like Kingsfield, you worry: can this person
possibly know enough to teach me what I need to know because I need to learn
this to be a good lawyer and pass the bar? I didn’t look the part and I was young
and frankly, they were right. I didn’t know very much about real property. So
they were full of challenges. Not everybody, some people. I was someone who
didn’t fit the traditional mold. There were certainly people at the time who were
not prepared to take a course from a woman. Now, in non-first year classes, it’s
generally not an issue because if someone feels strongly and it’s an upper-class
elective, then they just don’t take the class. The challenge was in those large firstyear
courses, and so property was very hard for me. Family law was fun because
by definition anybody who was there wanted to be there and was prepared to have
a woman, and it was a subject I knew the most about and cared most about. I
struggled with property.
Mr. Lynch: Were there any particular exchanges or experiences you had with students who
gave you trouble or any particular incidents in the classroom?
Dean Areen: Well, I remember people did not challenge in that way in the class, although I
remember struggling and all the teachers did, not just women or minorities, with
the fact that as much as I prepared, and I prepared a lot, there would inevitably be
some questions I didn’t know the answer to and I struggled at the time with
saying “I don’t know, but I’ll get back to you,” which today, I comfortably say all
the time. But, that confession of lack of knowledge really troubled me. Now the
second year of teaching a course, it isn’t that you are that much smarter, but it
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turns out the questions aren’t that different, and that’s helpful. Even at this point
to do a new course it takes a while to really get into it. But when you are first
starting out and there was nobody to tell me that in retrospect. That’s one of the
things we’ve tried to do. We try and mentor our new teachers more so they’ve
got people to talk to and someone can say, “It’s your first year. It’s okay. You
don’t have to know everything. You won’t lose control if you confess there’s
something you don’t know, and just stay with it.” So I had to struggle alone.
Mr. Lynch: Were you enjoying yourself?
Dean Areen: Not my first year (laughs). My life was fine, but property was a real struggle.
I’m very glad that I had family law because I knew then it wasn’t me, it wasn’t
about being able to teach, it was the challenge of this big class and a subject I
didn’t know.
Mr. Lynch: Did you have time to start working on scholarship at that first period?
Dean Areen: I tried, and certainly started. I also — probably because I was teaching family law
early on, I was approached, I’m hazy on the specifics, but some of the advocacy
groups in the District got to me to focus on children in child abuse and neglect
cases because there was in theory a right to counsel in the District, but there was
no money and there were very few volunteer lawyers. There were a few women,
volunteer lawyers, and we had a clinical program in a few discreet areas so there
was a criminal law clinic and a landlord/tenant clinic. I was able to write a grant
proposal, something that I had learned to do at my previous job, and got funding
from a foundation to start a clinic my second year in juvenile justice. At first the
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clinic focused on abuse and neglect cases. Of course I had never been in court, so
I knew I needed to hire someone to teach with me. I hired Wally Mlyniec, and I
should have stopped right there. I will never hire as well as I did then. He not
only made the clinic work, which he did and taught me a lot of everything I know
about litigation, but he went on as you know to become the dean of our clinics.
He runs the best clinical program in the country. He’s never taken on something
he doesn’t do very, very well.
Mr. Lynch: Was there a Family Court Division in D.C. Superior Court?
Dean Areen: We’ve gone back and forth. There was certainly a docket. It wasn’t a separate
division. It was just after the reform. There had been for many years a Family
Court only and, just before I started so I won’t have the years precise, the reform
was to get rid of the Family Court as separate with its own judges, because they
frankly weren’t as good. So, the reform was to rotate the Superior Court bench
into the Family Court Division, because that would improve the quality of judges.
Every once in a while, as you know, that debate comes back. Should we set it off
as a separate court? On paper, it’s very appealing, but certainly the experience
when I started in the early ‘70s was it had not worked in Washington.
Mr. Lynch: You said some advocacy groups came to you. How did they know to come to
you? Was it a big deal for a woman to be on the faculty here? Was it well
known?
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Dean Areen: I suppose that that was how it happened, and I don’t recall exactly how word went
out on the network, but I’m very glad they did. That was a focus of a lot of my
energy my first year and then we started it my second year.
Mr. Lynch: Do you remember which groups?
Dean Areen: FLOC, For Love of Children, is the program.
Mr. Lynch: Is that still around?
Dean Areen: Yes.
Mr. Lynch: 1972, now we’re getting into –
Dean Areen: I have it over here [on plaque on wall]. The first clinic was 1973-74, so that’s
when it was.
Mr. Lynch: And that was the Juvenile Justice Clinic, which is still going today?
Dean Areen: Alive and well.
Mr. Lynch: How was Watergate experienced at Georgetown?
Dean Areen: As you know, Sam Dash was on leave from the faculty and there he was very
much a part of the Senate Watergate Committee and John Dean was a graduate of
the Law School. Even apart from the Georgetown ties, I mean, that’s what was
going on in this city and everybody was glued to his or her TV set and focused on
all the revelations.
Mr. Lynch: When did Professor Dash leave? When did he come back? Is there anything that
you can remember about the institution then?
Dean Areen: No. I don’t have anything to add. John Sirica was also a graduate of the Law
School. People from Georgetown played key roles in the whole thing.
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Mr. Lynch: Was the legal ethics requirement instituted for law students at Georgetown related
in any way to John Dean?
Dean Areen: No. Quite independently, the ABA adopted a resolution that all law schools
should provide additional training in ethics because there were lawyers involved.
Now, they weren’t necessarily functioning as lawyers, but they had been trained
as lawyers. Schools either adopted the immersion view that you did lectures and
were supposed to focus some in each course or they did a mandatory course. To
this day Georgetown has a requirement that every student must take a course in
professional responsibility.
Mr. Lynch: You said you started working on some scholarly pieces your first year. Do you
remember what you were working on that year?
Dean Areen: I started early on seeking a better understanding of the strange statutes that guide
social workers when we take children from their parents. I began what turned out
to be quite a long exploration back into the history of these actions. The history
turns out to be an economic history. The first statutes, which were developed in
England, were to take children of the poor because there was no welfare at the
time and the state would essentially auction them off. You go back to Colonial
America; we had similar auctions. The needy child would go to the low bidder.
The town would put up kids and whoever bid the least, that’s what they would
pay and they would go and work for them. A perverse kind of auction – it wasn’t
really foster care.
Mr. Lynch: Was it based on the least?
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Dean Areen: Yes. The first removals were poor children and then –
Mr. Lynch: That’s 18th century.
Dean Areen: That’s 18th century. The 17th century is when it really started. In the late 19th
century, the Society for the Prevention of Cruelty to Animals started, so out of
concern for them, we took care of animals. There’s a lawyer in New York who
goes to court and says, well if we can protect animals, we need to protect this
child. And there was an abused child and that’s what began the movement to go
after child abuse, not just animal cruelty. For the first time at least in theory,
children could be removed for their physical protection as opposed to the fact that
their parents were too poor to take care of them properly.
Mr. Lynch: That case in New York. Was that –
Dean Areen: Little Mary Ellen Wilson, I think was her name, and there are photographs of the
scissors with which she was abused. I don’t have a good sense, I don’t know that
we do, of how much it was chosen as the breakthrough case.
Mr. Lynch: But this was a case litigated by the State, or?
Dean Areen: No, it was by an individual lawyer.
Mr. Lynch: On behalf of her?
Dean Areen: On behalf of her, and that prompts the rewriting of the statutes, which previously
had basically been written that you could remove poor children. That was the
statute. Suddenly it was not just poverty, but it was poverty and abuse and as
welfare is adopted – let’s see, it’s not until really the 1930s that we have AFDC,
then poverty is no longer a justification and we begin to focus on abuse or neglect
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apart from the question of poverty. But, as you know and as I know, if you go to
Superior Court, you don’t find many middle-class families; so, in theory, poverty
is no longer the rationale, but in practice it is very much a factor.
Mr. Lynch: If we could go back to that case. This suit that was brought by a private
individual, was it a suit against the State of failure to act case?
Dean Areen: No. It was to remove the child.
Mr. Lynch: The suit by the child brought –
Dean Areen? Yes, on behalf of the child, brought by a lawyer who had been involved with the
Society for the Protection of Cruelty to Animals and he brings the breakthrough
case. In a way, it’s a citizen suit doing what the government should have done,
but the government didn’t do it, and that begins the period of time when the
statutes were revised.
Mr. Lynch: Contract theory, or theory –
Dean Areen: Oh, you’re testing my memory.
Mr. Lynch: I know, I’m sorry. This is terrifically interesting.
Dean Areen: It is. It’s very interesting. You should look at my article, which was my tenure
piece. See Judith Areen, Intervention Between Parent and Child: A Reappraisal
of the State’s Role in Child Neglect and Abuse Cases, 63 Geo. L.J. 887 (1975).
At the same time I was having trouble finding a book to use for my family law
course. The same Jay Katz and Joe Goldstein had a case book on family law,
Goldstein and Katz, but it had been done a number of years before, so it was quite
dated and it wasn’t really comprehensive. I got in touch with them and said I’m
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now teaching and I’m putting together all these materials to supplement it. Have
you thought about doing a new edition? They said, “Well, we’re thinking about
it. We’d actually talked with another law professor, but maybe you want to come
and be part of it, too.” We all talked and had an agreement that we’d start
working on a revision of their book, and I worked on it a lot over that first
summer, but that fall the other faculty member decided he really wanted his
scholarship to go off in another direction. They didn’t want to proceed at that
point, and I had the makings of a case book. I found myself just building that
material for the next couple of years. To teach my course, I ended up basically
having to put together what became my case book.
Mr. Lynch: How does one put together a case book?
Dean Areen: It takes a lot of time (laughs), because in a way, I don’t know, there’s eleven or
twelve chapters, and each one is like its own law review article in the sense that
you have to fully understand the field to present materials that will teach it.
Teaching it is different than writing about it. You don’t just tell people, you want
to engage them and find cases that will be memorable. The facts are interesting or
the people involved so they’re not just memorizing, as you know, black letter law,
but they are getting the feel. I tried very hard to think about different kinds of
materials – a section on incest, one of the early state rules on marriage bans on
incest; but there’s lots of very interesting material on incest from anthropology.
What is and what isn’t incest? What’s the function? I mixed in non-traditional
legal material. I was always very curious, particularly in family law, about how
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the law really interacts; so, in a number of key cases, I came up with the notion of
writing to the lawyers. Some of them, not all, would talk about their client and
what happened one year, or five years down the road. You come to understand
that the intervention of the law in a family isn’t over the day you have a judicial
opinion. That’s something you need to think about, particularly as a lawyer.
Those are some of the things I got very caught up in. Teaching is wonderful
because a lot of it comes from those questions in class you can’t answer. You go
and look and sometimes you can’t find anything, either a case or an article, then
you have to do some writing or thinking yourself to put it together as something
that will be interesting in the classroom.
Mr. Lynch: I think we’ re going to stop here, if that’s ok.
Dean Areen: That’s fine by me.