Michael Davidson Interview Transcript

This item is featured in:

Michael Davidson Oral History

    Legal Defense Fund Oral History Project 

   

  

 

Michael Davidson 

Interviewed by Susie Penman 

May 6, 2024 

Washington, D.C 

Length: 03:43:19 

 

   

  

  

Conducted in collaboration with the Southern Oral History Program at University of North 

Carolina at Chapel Hill 

LDF Archives, Thurgood Marshall Institute, NAACP Legal Defense & Educational Fund, Inc. 



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This transcript has been reviewed by Michael Davidson, the Southern Oral History Program, and 

LDF. It has been lightly edited, in consultation with Michael Davidson, for readability and clarity. 

Additions and corrections appear in both brackets and footnotes. If viewing corresponding video 

footage, please refer to this transcript for corrected information.  

  

 

 

 

 
 
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 



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[START OF INTERVIEW] 

Susie Penman: This is Susie Penman from the Southern Oral History Program at the 

University of North Carolina at Chapel Hill. It is May 6th, 2024, and I am here in 

Washington D.C. with Michael Davidson in his home to conduct an interview for the LDF 

Oral History Project. Thank you very much for doing this and being here. 

Michael Davidson: And thank you for coming. 

SP: Will you just begin by introducing yourself, telling us who you are? 

MD: Sure. As you said, I'm Michael Davidson, and this oral history is a welcome 

opportunity for me to think again, to do some reading and ask myself some questions about 

an extraordinary experience and time that I had at the NAACP Legal Defense Fund. So, I 

thank you very much for doing this. Should I start from the beginning? 

SP: We'll begin, you grew up in Brooklyn. Can you tell us a little bit about the 

Brooklyn of your childhood and your growing up? 

MD: Sure. Well, let me tell you a little bit about our family, and provide a Brooklyn 

setting for that because I think the family narrative does contribute to my own personal 

narrative. So let me start far away. My father was born in Belaya Tserkov, Russia, which is 

now Bila Tserkva, Ukraine. [00:02:00] I think he had always identified in the course of his 

life as [having been born in Russia, not Ukraine] and not making a political statement about 

now, but this was prior to the independence of Ukraine. His dad, my paternal grandfather, 

migrated to the United States in 1907 or close to that, preceding his wife’s, my 

grandmother's, coming to the United States, together with my dad who came here [in 1908] 

as a five-year-old. They settled in Hartford, Connecticut, where my dad grew up. And I 

think first discovered his, not I think, it definitely was the place he first discovered his 



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interest in theater. I mention theater because theater has been an important part of our total 

family life.  

My [Hartford] grandfather was a fruit and vegetable person [peddler]. He had a 

horse and wagon and plied his [way and sold his] fare in neighborhoods. My older brother 

remembers coming to Hartford, as a kid, going out with our grandfather, and calling out the 

wares to bring people out of their homes to buy fruits and vegetables. My grandfather was a 

religious man. I think [he] prayed daily and certainly on the Sabbath, and my father grew up 

as someone very attentive to his religious practices, although never in a way in which he 

sought to impose in any way on his children with what his approach [was] to be. [00:04:21] 

But we were very mindful of it and very mindful of how Judaism shaped his fuller life in 

terms of public theater [theater in general], readings, acting, and directing. He was a strong 

supporter of Yiddish theater and its preservation. After a process in which I think he 

excluded several professional lines that maybe his Mom would have preferred, like dentistry 

or some solid profession, education and theater became his life. After studying theater in 

Boston, both at Boston University and then at the Leland Powers School of the Spoken 

Word, he came down to New York. 

Just at the time that Brooklyn College, as a branch of the City University of New 

York, was being opened in downtown Brooklyn, he completed a Master’s at Columbia 

University.  He very much shaped the theater [in Brooklyn] in the course of the next four 

decades in which he was on the faculty, directing plays for evening students and day 

students, and taking people through quite a repertoire of plays. One of which I’ll mention, 

because the University of North Carolina and oral histories is obviously in the background 

here, he directed a play called In Abraham's Bosom in 1938. [00:06:31] In Abraham’s 



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Bosom had won the Pulitzer Prize several years before. It was a play based on racial 

experiences in North Carolina. I think Paul Green was the playwright. Then [he] did 

something, but he had to do it even more fully in relationship to this production, because 

there weren't very many Black students in the university system [at that time]. Obviously 

that changed over the course of time, but far less in the 1930s—recruiting Black students 

and staging a production in which I think all but two of the roles were to be played by Black 

actors [was both the challenge and opportunity of the production]. And I can tell from what 

was written at the time at the College, that this was a very important experience at the 

College.  

And so, we actually learned a lot by being observant of the kinds of plays Dad chose 

and how he related to his students in their opportunity now to broaden their own 

experiences. [00:08:05] Well, that’s getting a little bit ahead, [so going back to] because in 

the year after he came down to New York and began teaching at Brooklyn [College] the fall 

of 1930], he was staying at a relative’s house in what was called East New York, which is 

actually part of Brooklyn, very close to Queens and where he had this very romantic 

experience of walking to the subway to go to downtown Brooklyn and hearing this young 

pianist from the second floor of a house on his walk. After a while, he met the pianist, and 

after a [further] while, they married. And that was my Mom, Alice. Her dad, also, with his 

family, migrated from [Borisov, near Minsk in] Russia, but from the part of Russia [then 

called] Bielorrusia and that became Belarus. He was a tailor and in the United States, as a 

tailor, moved to the garment trade, and he was a presser [with] long, hard days. My Mom 

would describe his coming home [with underarms] just being raw from the heat of the 

sweatshops in which he worked. But he loved music and he loved gardening, and he loved 



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animals. [00:10:10] And they had a sort of a wonderfully active house in which the arts, 

here, the musical arts were a very important thing. I had an uncle who was a painter. 

Another uncle who played in a mandolin orchestra. And then my Mom who was a pianist. 

Her dad, Max, died early. My mom may have been 16 or so, and she then had to give up her 

own aspirations to be a concert pianist and focus on giving piano lessons in order to support 

my grandmother.  

I can assure you that her musical abilities totally bypassed me. But my older brother 

[Gordon], as he matured, developed a life in the theater and directed and produced 

extensively in Los Angeles, but also in New York and elsewhere, had a musical strand [that] 

included opera in the course of his [work]. [Here] in D.C., he directed the opening of the 

Kennedy Center, the Bernstein Mass. The other thing I think I’d feature about it is as a 

family, [including] as a Jewish family, [our Dad was an avid reader in public performances 

of Sholom Aleichem stories. In his selection of plays to direct and in his own performances] 

there was continuing exposure to forms of arts, themes in arts, [and] subjects in arts that 

were very broad. [00:12:11] It was something I've always appreciated and valued about the 

opportunity that my parents and my older brother had provided.  

So, anyway, that takes you through some of those early days. I'll jump a couple of 

years, when my older brother was seven, he was born in 1933 and I was born in 1940. My 

parents moved to a place in East Flatbush, and that’s the place [where] I grew up. New 

Yorkers tend to refer to the Old Neighborhood, the place people lived long ago. This was 

actually a fairly new neighborhood at the time, as population in Brooklyn spread out, as the 

mass transit system enabled people to live further and further away [from Manhattan] and 

still commute. 



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SP: And what is the neighborhood again? Say it again? East. 

MD: East Flatbush. 

SP: Okay. 

MD: And that's where I grew up, where I spent my first 13 years. One of the things I 

always valued about that neighborhood is that it was a mixture of people. Our landlord was 

an Italian family, the Randazzos, the Iafrates lived next door, the DiGiovannis lived a couple 

of houses away. This was a neighborhood that was anchored in actually two synagogues, the 

Roman Catholic Church, and a rather extraordinary elementary school in which a quite 

innovative principal developed a program for students in that neighborhood, but also 

students who came from outside of the neighborhood, in which we all learned at a rather 

challenging and rewarding level. [00:14:39] One of the things I remember most about her 

[our principal, Elsa Ebeling], is that in addition to conceptualizing this school, she was a 

person with deep faith too. She was one of the few Protestants I knew growing up, that was 

just the nature of a Catholic and Jewish [Brooklyn] neighborhood. She would begin her 

assemblies with Bible readings, and I never thought that to be an unusual thing. It was just 

her deep expression of faith and never in a proselytizing way. But it was trying to help us be 

aware of an even larger world than we might have otherwise immediately have known. Very 

few Black students, but a couple, including a very deep friendship and a first opportunity to 

visit another family in [Brooklyn’s] Bedford-Stuyvesant [neighborhood]. I valued that very 

much. [00:16:01]  

[Then, after my family moved to a neighborhood west of the College], I then went to 

a high school called Midwood High School. And the one thing I’ll mention about Midwood 

High School is that we had an award. I was very active in student government and was 



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elected to be the mayor of the [City of Midwood]. The student government was modeled 

after urban New York [the city]. And so, the student body president was the mayor. We had 

an annual Franklin Delano Roosevelt Award. Some of the nomenclature changed over time, 

but it was basically a human rights award. In my junior year, the student body voted to 

confer that award on Thurgood Marshall. And just sort of tuck that away. It was a process in 

which we all learned and studied about Marshall. And, of course, at that point in 1956, it 

was just two years away from [after] Brown v. Board of Education. And I had no idea that I 

would ever connect in any way to the NAACP Legal Defense Fund, but that was a first 

introduction. 

SP: Do you remember when Brown v. Board was passed? 

MD: I think I do, and I don't want to deceive myself in my memory to say I 

remember that, but I believe our conversations at school were of a nature that that would 

have been discussed. [00:18:10] But clearly within two years, I think I knew a lot more, 

because of the process of conferring that award. 

SP: And so, after that, you graduated and you went to Cornell for undergrad. And 

you finished up there in 1961. Can you tell us about first of all, the decision to apply and 

attend Cornell? 

MD: I'm sorry? 

SP: The decision to go to Cornell. To apply and attend. 

MD: Sure. At Cornell, there was a branch of an organization called Telluride 

Association. And a house, a student residence house, which actually had not only students, 

but a number of faculty guests. It was a scholarship house. My brother Gordon had also 

gone to Cornell, obviously some years before I did, and he was awarded a scholarship to 



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reside at that house. I was interested in it initially because by the summer of 1956, it had a 

program for high school juniors, 16 or so of us. That particular summer program dealt with a 

comparison of theories of communism and democracy. [00:20:00] I attended that and then 

applied for a residence scholarship to begin my studies at Cornell. [Our] Dad worked 

extraordinarily hard. He taught days, he taught evenings, he taught summers. But our 

financial circumstance was such that scholarship aid was very important. And Cornell fit 

that bill completely. I also liked the democratic aura of Cornell. Cornell is now going 

through its issues [similar to those of] other schools. [But there was a spirit of Cornell, from 

its beginning, that was]  now but it began, I think unique in the Ivy Leagues, as a school not 

[not limited in gender] and not based upon any particular religious affiliation, as Yale did in 

its early origins [or as Harvard in its origins.  In sum, Cornell seemed to me to have] an 

approach and a level of belief that education should be more diversely available. That didn't 

mean that it was doing a terribly good job on recruiting African American students. There 

was a lot to improve along those lines. But there was a spirit to the place that I liked, and I 

was able to do it without any cost to my parents. [00:22:00] 

SP: What did you study? What did you study there? 

MD: I started studying [as] a government major and then switched to history. 

SP: You’ve described Cornell a little bit for us, but can you describe a little bit more 

the climate when you were in college? This is the late [19]50s, early [19]60s. 

MD: Well, there was the beginning of a sense of change. Some of that I think I can 

describe in terms of some issues that I became particularly involved in at Cornell. One was, 

Cornell at the time and for decades before had a compulsory reserve officer training 

requirement. We all had to do two years of ROTC. And that troubled me greatly that in a 



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school which had a foundation in ideas of freedom that there was a requirement for military 

studies. Not that I had any objection to an active reserve officer training program at the 

school. But I did have strong initial feelings about the compulsory aspect of it. So, I ran a 

campaign. It was pretty much [at first] an individual campaign of studying, writing reports 

to the student government, [which raised the issue] to the faculty who ultimately passed on 

to [brought it before] the trustees. And within three years, it became a voluntary program. 

[00:24:06]  

My other main locus of activity is [was] the student government Human Rights 

Committee. In my junior year, I was asked by the student government to be the chair of that 

committee. I think I'd like to go back and try to understand more about what we were able to 

do or not do. Some amount of the issues we dealt with I can illustrate this way. In the course 

of that [chairmanship], I learned [about] and brought to the attention of the administration 

that roommate assignments in college dormitories were on the basis of religion. Students 

were deliberately paired. There was nothing written about it, but they were deliberately 

paired to be only with students of the same faith. I have some correspondence, which I am 

so glad my father kept a box of papers. This kid's papers. This kid's papers. I was able to 

recreate some of the things I did, just by the things I brought home, and he saved. In the 

capacity as chairman of the Human Rights Committee, I brought that to the attention of the 

administration. And they were good enough to recognize that needed to be changed. 

[00:26:05] They also revealed, I think something that is very true, unfortunately, about many 

organizations and college organizations is at a certain level at the top, people are not aware 

of what day-to-day administrators are doing. At least they would indicate [say] that they 

were surprised by it. 



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I'll tell you, one other thing I did in relation to that [Human Rights Committee] 

undertaking, and then connect it to the Legal Defense Fund. Reading again, going back, and 

looking at archival records of the Cornell Daily Sun, which was not only the campus paper, 

but a morning paper in Ithaca, refreshed my recollection of [the] early [1960s at Cornell]. Sit 

ins began in Greensboro, North Carolina, and there were quite promptly, within the month 

that followed, empathetic activities at college campuses all around the country. They 

included a student protest [at] and picketing of the Woolworth store in downtown Ithaca. 

The Greensboro sit ins had occurred at a Woolworth. Obviously, there were many, many 

other places, but Woolworth became a particular subject of it. The student government [at 

Cornell] took up the question of, “Should there be a campus protest at Cornell?” [00:28:08] 

They ended up vacillating about it. At first, it [the thought] was trying to create a protest 

which was student government run. I think that the university had a reaction to that about 

liabilities, whatever those might be. 

And so, a separate organization was created to [sponsor the picketing of the Ithaca 

Woolworth], but they [the student government] also had a meeting. I happily came upon, [in 

anticipation to our conversation today], a Cornell Daily Sun article, an archived article. The 

Human Relations Committee, which I was chairing, became active in sending 

communications to U.S. senators and representatives supporting then pending civil rights 

legislation, very, very modest legislation at the time, but [which] had been stalled in a 

filibuster. The article I was reading said the student government agreed to ask Davidson to 

write the telegram, which he proposed to write, to support students at Alabama State 

Teachers College in Montgomery. For all the attention and deserved attention given to sit-ins 

in North Carolina and elsewhere, the sit-in that was engaged in by the Alabama students was 



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[different because it was] in a public facility. The officials’ reaction was severe, charging 

students with criminal trespass and so forth. [The] students were well represented in that 

process, ultimately by the Legal Defense Fund. [00:30:09] But students were expelled, and 

they were expelled at the insistence of the [Alabama] governor. And I was, just in reflection 

[years later], very happy to have discovered that we, the student government [then], with the 

committee that I was working on, was responsive to that circumstance and had joined in 

[supporting] that protest. 

Those protests of course far milder than many others that have been experienced and 

recently. And there were other things going on, which many other people were engaged in. 

And I’ll only tell you one last thing about it [Cornell]. In my senior year, the student 

government, then moving [the issue to] the faculty, legislated, directed against fraternities 

and sororities that had clauses that were restrictive. This fraternity was of this faith and that 

faith and no other, and also racial identifications. I was asked to and then submitted a 

document to student government, [on behalf of Telluride and other organizations], with my 

evaluation of the action that they were proposing, which was to require fraternities and 

sororities to eliminate those clauses, many of which were imposed by national organizations. 

[00:32:00] The piece that I wrote, members joined in and we [argued] “but that's not 

enough.” You can take out the requirement of discrimination but if you still have the 

mechanisms of discrimination, you won't have succeeded in moving the ball. The 

mechanism of discrimination was the blackball system, allowing the vote of one person to 

reject someone who was seeking to pledge to a fraternity or sorority or 10 percent or some 

small number. And that, of course, is an issue that has stayed with us, systems in which 

small minorities, could be the Senate filibuster [laughs], can be used to exclude. So anyway, 



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in preparation for this interview, going back to that, I said to myself, “I welcome that 

opportunity to revisit thinking about something then, which has some vibrations now.” 

SP: Well, it sounds like these things that you were involved in while you were in 

college maybe shaped these later decisions you made in the rest of your career. You went to 

law school at the University of Chicago after Cornell. Can you talk about the decision to go 

to law school and maybe how it was shaped by your experiences in undergrad? [00:34:04] 

MD: Sure. I got to add one more thing about Cornell, which connects to the Legal 

Defense Fund. In between sophomore and junior years. So, this would have been the 

summer of 1959. Having been appointed to chair of this Human Rights Committee, I went 

to Champaign-Urbana, Illinois, representing Cornell at a meeting which was preliminary to 

an annual congress of the National Student Association. And this meeting that was 

preliminary to it was on human rights issues on campuses. One day, at that session, sitting 

on the steps of a university building, this fellow comes over and says, “Are you with that 

group?” I said, “Yes.” And we struck up a conversation. His name is Charles Jones. Chuck is 

how we called Charles at the time, and we developed a friendship. I’m going to return to 

that because that's how I got to the Legal Defense Fund. 

SP: You went to law school? What drew you to law? Why did you decide to go to 

law school? 

MD: I don't think I did a lot of analysis of it. My father had this way of 

communicating, which was never didactic. [00:36:15] But I'll always remember that for my 

high school graduation he gave me a book of Clarence Darrow’s speeches. Maybe I saw 

something in that, or just generally I thought of some public life and law was a way of doing 

it. And I had no talent for theater, so I needed to do something else, although a good deal of 



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theater can be found in settings of trials and other proceedings. But not a lot of analysis. And 

I did have a financial reason. At the time, Chicago was an extraordinary school, but it was 

less of a national school than it has been in the decades since that time. It had an interest in 

attracting students from a number of diverse places, going beyond Illinois. And so, 

therefore, it had dedicated scholarships, one of which was available to a Cornell graduate 

coming to Chicago and I was able to secure that. That further led to being able to go to that 

that law school without calling upon my parents for much support. [Although] they of 

course supported [me] to some degree, but I was pretty much able to finance it. [00:38:15] 

So, Clarence Darrow’s speeches, cost of college, put together. Never been to Chicago, hadn't 

gone to Chicago to make the decision. But, got out there.  

SP: And when did you realize what kind of lawyer you wanted to be and what kind 

of law you wanted to practice? 

MD: I think it probably demonstrates that I've gone through much of life not quite 

knowing what my next step would be, but then experiencing it. Clearly, I wanted to deal 

with public issues of some kind, but I didn't have a focus on civil rights or civil liberties, but 

just some sense of generally dealing with matters of public concern. And I think Chicago is, 

this is simple to say, but an extraordinary place. But it didn't shape my thinking to any 

degree that I can honestly attribute. I thought the first year that I spent there was the most 

extraordinary academic year that I ever experienced. [00:40:02] It was a year that dealt with 

the history of the law, the development of the law of contracts and development of the law 

of property, going back through English development and into American development. 

Thinking about general principles of the law. And I felt really good about that. The next two 

years were far more of a focus on business. Taxes and corporations and so forth and my 



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interest just tailed off. Glad I finished there but I wasn't being inspired by it, but the first 

year was for me, so terrific that my general recollection and feelings about the school are 

extraordinarily positive. But they were two different experiences. Nonetheless, to do course 

work on constitutional law, I was aware of racial issues as they were being presented in the 

courts. And so, I was building familiarity. It wasn't part of a specific plan. But I'll make a 

connection to the Legal Defense Fund. So, I told you about a conversation on the steps at 

Champaign-Urbana, [with] Chuck Jones. Chuck, a couple of years older, was from Chicago 

and based in the Hyde Park area. [00:42:05] We reconnected there. So, put that data point 

there. With a couple of other [law] students, we shared an apartment and that friendship, it 

was nurtured and developed. But then, I [graduated from law school], came back East and 

Chuck came to New York to work for the NAACP Legal Defense Fund. Put that data point 

over there. Unless I should add something [else] about law school? 

SP: No, no. I was going to move on to you going to Kenya because you graduated. 

MD: Okay. That's exactly. So, this is now June of 1964. May, June, graduation time, 

and I had student deferments and so needed to confront, either I go into some form of 

military service which would have been judge advocate general work as an officer, or do 

something else that would allow me an alternative. And that something else I thought might 

be the Peace Corps. I first was interested in a program in Malawi in which Peace Corps 

volunteers would, at least this was as it was described, would go out into rural settings, sit 

with village elders, take notes about dispute settlement procedures and principles and, I 

think—codified would be the wrong word—but to give people a recorded opportunity to 

understand how legal issues were confronted. [00:44:26] I expressed an interest in that, got a 

response of, “Well, you could do that, but we've got this great program in Kenya.”  



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That program was a program that dealt very much with a fundamental issue in the 

independence of Kenya. So, if you picture Kenya, the Highlands of Kenya, which came to 

have the appellation of the White Highlands, 5,000 feet to 8,000 feet, temperate climate, and 

very amenable to an agriculture that was both profitable and one that Europeans would find 

from their own experiences that they could benefit from. That had an impact on the tribes of 

Kenya, and particularly the Kikuyu tribe, whose land opportunities were severely 

constricted by European settlement. 

So, independence, the independence struggle in Kenya [accelerated], which had very 

early manifestations, but became public and had some degree of violence associated with it. 

[00:46:16] Actual conflict in the 1950s into the 1960s was about land and political freedom, 

those two together. As part of the independence bargain between Kenya and Great Britain 

was a program for the acquisition of European farms, some significant number of European 

farms in the Highlands and their resettlement with Kenyan African farmers. Generally called 

land settlement, land settlement involved acquiring these European farms, putting together 

groups of them, settling Kenyan African farmers on them, providing assistance, providing an 

administrative structure, which included veterinarian, agricultural, and health and co-

operative assistance. The Kenyan government was interested in a Peace Corps involvement 

in that program, to assist them in providing a bridge between the initial days of the land 

settlement program in which many of the land settlement officers were, in fact, the British or 

South African farmers who had worked that land, and a new generation of Kenyan African 

settlement officers. Peace Corps allowed for some bridge. It was an unusual Peace Corps 

program because [we] actually, for a period of time, exercised the responsibilities of 

government officials in administering these settlement schemes. [00:48:28] And all of that 



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was quite attractive. At the same time, I was applying for a JAG commission. Peace Corps 

came first. I said, “I'll do that.” 

And now I’ll make another small connection to the Legal Defense Fund. We’ll 

weave this all together. So, I’m talking about 1964, [we go] to Kenya at the very end of 

1964, and through much of 1966 is when I'm in Kenya. In 1960, Thurgood Marshall had 

been asked by Tom Mboya [to provide legal assistance to the independence movement]. 

Tom Mboya, Kenyan, [was] a brilliant, charismatic, young, labor organizer. While Kenyatta 

was still under detention by British authorities, having been tried on various charges, they 

were quite faulty but was tried, convicted, incarcerated, and then even restrained after the 

completion of his sentence, unable to function openly politically.[00:50:09] Mboya was one 

of the young people who helped put together [international support for] the independence 

movement. That included his coming to the United States, talking a great deal around the 

country, and taking a significant role in organizing airlifts of Kenyan students to the United 

States to study at American, some Canadian, institutions, [students who would then] be a 

part of, an important part of, the generation that would then have responsibilities when 

independence came, as it would inevitably come.  [In the U.S.,] Mboya had made a 

connection to Marshall who, supporting [working] together with other important African 

Americans in the United States, Jackie Robinson among them, [encouraged] interest the 

United States in supporting that program of education of the next generation of Kenyan 

officials. Mboya together [with] others, asked Marshall to join them at a conference, the first 

of several conferences, at what they called the Lancaster House in Great Britain, [a 

significant event] which moved the country [Kenya] to independence. It was a conference in 

which white settlers and government officials and Black Africans and Asians would come 



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together with British officials and try to come to some agreement about the future. 

[00:52:13] Marshall was brought [in by Mboya] as an expert, causing a great deal of 

consternation within the British government at the time of who this person is. “Who is an 

American who's trying to help us?” I don't know whether they had any particular feelings 

about the kind of work that Marshall had done, but “Who is this American?” 

Marshall tells this story that, again, I promise I will connect all this. He tells the story 

[that] in 1960, to prepare himself to go to this Lancaster House conference, to come to 

Kenya to meet people. He had met Mboya. But to meet Mboya again and to meet others—

he tells this story in his own reminiscences of coming to a place where there was a large 

meeting, in which British officials were meeting with representatives of African groups at 

some setting in which they [the African representatives] weren't allowed to speak to the 

public. [The] British sort of had an approach to things. You could do this, but you can't do 

that kind of thing. So, Marshall was not allowed into the meeting. And there are hundreds, 

maybe thousands of Kenyans who were also excluded from this and they're out in a field. 

Marshall says, because he can't go into the meeting. He says [to a British official], “I've got 

to be able to speak to these people. We have come a long way. They're expecting me to 

speak to them.” [00:54:20] “So, what if I just said one word,” and the British official in 

charge is somewhat grudging and says, “Okay. One word.” Then Marshall somehow is 

helped to get on top of a car, and he delivers his one word, which is “Uhuru,” Swahili for 

“freedom.”  And the crowd goes wild [laughs]. So, it was just Marshall's brilliance. One 

word, and he picked it. 

Eventually he gets to the conference in early 1960, and the British actually begin to 

warm to his presence, which was, in the main, to propose a draft Bill of Rights to the 



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Constitution of the free Kenya to come. His commitment to that idea and his interest in 

persuading people to that idea, is that it was important to give to white settlers’ confidence 

about their future. And that should be done through an articulated set of rights. Part of that, 

there is some irony in all of this, was to assure that as the transition in land ownership was 

effectuated, it was done under a set of rules. There was mention of keeping to American 

rules, although a good deal of what they looked at were aspects of the Nigerian Constitution 

and other constitutions, that if land was to be taken then it would be taken according to legal 

process with compensation and the like. [00:56:38] He helped this group articulate a Bill of 

Rights. That's 1960.  

SP: And you were there [19]64 to [19]66? 

MD: Yeah. We started training in Milwaukee at the University of Wisconsin -

Milwaukee in September of [19]64, actually arrived [in Kenya] just before New Year's 

[Day]in [19]65. And I leave Kenya in September of [19]66. 

SP: And how do you think your time in Kenya with the Peace Corps affected what 

you then went on to do? 

MD: I hope I'm not making this up, but I believe it. I think it had a major effect, call 

it a profound effect. And when I thought about it, I want to be very careful about that. Life 

isn't always seamless, with one thing contributing to another. [00:58:02] But [here’s] what I 

think I gained from it, and I've had some pleasure reading my correspondence home to my 

parents, I said my father saved everything. So, it all ended up in a box to be read. It was how 

to be very, I’m going to say modest, and maybe there's another word, about a role in relating 

to issues and people who have their own experiences. I remember my experiences. So, the 

worst kind of Peace Corps volunteer would be the one who says, “I'm going to tell you how 



20 
 

to do it. You do this and you do that and that's how we do it.” Because that's not the idea at 

all. The idea is to work through a process in which people develop their own solutions to it, 

to whatever range of issues they may be dealing with, that the outsider can help reduce the 

amount of time it takes to come up with answers by engaging in discussions. What can we 

learn about what just happened here? And what ideas do you have about what might be done 

differently, which can lead to frustration if things don't happen that quickly. [01:00:05] I 

have a letter to my parents in which I described working with a group of farmers, the 

cooperative society for the first settlement scheme that I worked on, to repair the cattle dip. 

A cattle dip is a structure in which cattle are put through in order to be washed by a chemical 

solution that would eradicate ticks and tick-borne diseases [that] are endemic in the tropics 

and can be devastating. I described how we gathered people together and there was this 

great process and considerable progress was made, and we just had a little more to do. Then 

I write a couple of weeks later and I say, sad to report we haven't made any progress since 

that. It really would only take a couple of people going up to the mountain to work on some 

pipe that would flow water down to this dip, and it wasn't happening. And I said, you know, 

I realize I could gather up a couple of people, we go up into the mountain and fix the pipe 

and so forth, but that's not the idea. Eventually it happened, but it had to happen on its own 

path and with people making that decision. 

I think one of the things I carried forward [to] working at the Fund were experiences 

representing community groups in negotiations. [01:02:07] The importance of just being 

very modest about that, of not yielding to the lawyer’s temptation, which is “Okay, you 

hired me, I'm going to be your voice. And you are going to be a voice. There are certain 

settings in the courtroom, in which you have to be [the] voice. But the important thing is 



21 
 

their voice, and how they work through issues and how you, [their lawyer], can be of 

assistance to it. And I've developed that thought, and I've treasured it. I think it's right. 

SP: So, tell me about getting the job at LDF and coming back to the States. 

MD: Oh, yes. I told you I would connect all of that.  

SP: You came back in late 1966. Can you tell us a little bit about your understanding 

of LDF at that point and what you thought you would be doing? 

MD: Well, I'll tell you specifically how I got the job or how I think I might have 

gotten the job. And then what my understanding would have been. I came back, and I still 

had the issue. What am I going to do about the military? I went in to see my draft board, 

and, they basically said, “Well, you're not quite too old, but you're getting there.” I was 26, I 

guess, and I reconnected with Chuck Jones, who I met on the steps of the University of 

Illinois, Champaign-Urbana, and then we shared an apartment [in Chicago]. I think I just 

called to say, “Hi.” [01:04:16] And went up, had lunch with Chuck and with some others. 

Within a couple of weeks, had met Jack Greenberg and got the job. I can tell you one thing 

that was specifically happening there. At that very time, within days, the Legal Defense 

Fund was completing an arrangement with the Ford Foundation to establish a National 

Office for the Rights of the Indigent. The attempted shortening of that was NORI. [The short 

name for the Legal Defense] Fund was the Fund. 

This is of course, soon after, Marshall, after his visit to Kenya and to the Lancaster 

House conference, was appointed to the Second Circuit and then Solicitor General, and [in 

1967] then soon to be on the Supreme Court. The Fund knew that things were changing. 

What it wanted to do, to be responsive to change, was to broaden its reach across the nation. 

It always had some matters that were outside the South. But, obviously historically it was 



22 
 

Southern oriented. [01:06:11] To broaden its [the Fund’s] reach to be universal within the 

United States would include subject matters that it had not developed as a main subject, 

consumer rights law and so forth or approaches to issues. There always had been a housing 

component, [but now there should be] approaches to issues which saw those problems more 

generally. So, for example, in housing, dealing with the impact of urban renewal and 

highway placement and so forth. And that would also involve connecting with lawyers and 

groups of lawyers, who were at that point themselves in development. And so, being near, 

[connecting, not only with legal aid societies but also with newer] Office of Economic 

Opportunity legal assistance programs. [There were], which either have been more historical 

legal aid or more contemporary legal assistance programs. And so, there were whole new 

groups of potential clients, potential lawyers, geography, and subjects. Literally within a day 

or two of my having these conversations with Jack and, of course they knew this was 

happening, the Ford Foundation confers this [NORI grant. The Fund was just at the point of 

expanding to some degree [just when I showed up to have lunch with Chuck Jones]. 

[01:08:08] 

Well, we obviously talked about [the anticipated work of NORI]. But then, and this 

is at the purest level of conjecture, which I‘ve thought about subsequently, [also about] 

Kenya, of course, and the very issues that Marshall was concerned about, which was the 

transfer of land from Europeans to the Kenyan Africans. He was there before I was, but it 

was a related experience. Within just a couple of years of my starting there, the Fund hired 

three other [former] Peace Corps volunteers. Elaine Jones, who went on to become a 

Director-Counsel. I think prior to her going to law school, [Elaine] was a Peace Corps 

volunteer in Turkey, teaching. I think Drew Days had started to practice law. And then just a 



23 
 

little bit after I started [ at the Fund, Drew] went to Honduras with Ann. Drew and Ann 

Days, and they were both volunteers. [01:10:01] Drew worked on agricultural cooperatives 

in Honduras. I think they [the cooperatives] were related to tomato canning, but I'm not sure. 

But they were agricultural cooperatives. They [Drew and Ann] were based in Comayagua, a 

historic capital, early capital of Honduras. Ann did very interesting work in town including 

writing broadcast scripts for young people. They had that experience. Lowell Johnston was a 

volunteer in Venezuela [after] he had finished law school. His program in western Venezuela 

involved assistance to municipalities and brought together, [with lawyers], Peace Corps 

volunteers who were architects and city planners. There were four of us, and I got to think 

that maybe Jack and others at the Fund liked the idea of Peace Corps volunteers. Anyway, 

that happened. 

SP: Do you remember your interview with Jack Greenberg? 

MD: I should say, I remember the part which was about NORI. I don't have a 

recollection that we spoke about Kenya. That part is my speculation. I can't believe that we 

didn't do it, but I honestly couldn't say that that we did. I had one other job offer, and he just 

made it clear that his was the better offer. [01:12:03] 

SP: So, did you have an idea when you were first hired, and you'd been out of law 

school for a couple of years at that point, did you have an idea other than NORI and with 

LDF expanding and NORI was one of those new initiatives, did you know what exactly you 

would be doing at LDF? 

MD: The very first brief that I worked on [was a school case]. The story that I think 

is typical of many other people who come to the Fund, which was lots of school cases. [The 

Fund was] expanding, but still. So, lots of [school] cases for the number of people, being 



24 
 

told sat down, saying, “See that pile over there? We need to have a reply brief in, whatever, 

three weeks.” And I [hadn’t] opened a law book [for several years]., whatever that might be. 

And obviously there's some guidance in the process. And I've read [that] others tell that 

same story. Pretty early on, I began to develop this subject [area] relating to housing. 

Although I think a good deal of the maturing of that turned on a lawyer who was doing that 

and herself had been a young lawyer at the Fund, a very talented lawyer, Sheila Rush Jones, 

[Chuck’s wife], had been developing [a housing law reform area] for a year or so before. 

[01:14:24] So, I think within six months, in addition to school litigation, that became my 

field [after Sheila left the Fund for a position at the Architect’s Renewal Committee in 

Harlem, ARCH]. I won’t describe it [my housing and related urban issues] as a plan as much 

as something that was just generated by activity. 

SP: Do you want to talk about any of those school cases that you worked on? 

MD: Sure. Let me start with, in addition to this, “See that pile of paper over there, 

write a brief.” My first [trial] apprenticeship was a major case under Chuck Jones's tutelage, 

he was the senior on the case, [which] was the long pending school desegregation case in 

Mobile, Alabama. Mobile was a countywide school district, so it had urban parts, obviously 

Mobile itself, another couple of other townships in the county, and rural parts. It was a 

complex school system in contrast to school systems that had a Black school and a white 

school, and they [the two schools] needed to be melded, but they didn't involve lots of 

decisions. [01:16:09] The timing of them, [yes], but [at first], not [location of new] 

construction, [placement of] temporary classrooms, [transportation] and so forth. And we 

went down [to Mobile], and Mobile was a place in which the judge involved, Daniel 

Thomas, was as unsympathetic as could be. That's the way he was. That's the way he was 



25 
 

going to be. The school litigation there would involve hearings in the spring and summer 

and appeals to the Fifth Circuit in late summer and early fall. 

There were a couple of things about that case, some of which was at the 

impressionistic level and some at the more specific learning level. In 1967, the first long 

stretch that I had down there, the United States Department of Justice intervened in the 

lawsuit. This was approaching the end of the Johnson administration when there was a great 

deal of activity by the Department of Justice. The Department of Justice intervened. At an 

impressionistic level, I will never forget, absolutely never forget, the first time we were 

before Judge Thomas and the lawyer for the Department of Justice rises and says, “The 

position of the United States on this issue is…” I heard the words “the position of the United 

States,” and I literally, and I believe in the truth of this. [01:18:19], I just rolled around in 

my seat and I said to myself, “That's wonderful.” I just pictured legions. This is not [just] the 

position of John Doe or someone, this is the position of the United States. 

And then at the level of detail, the first thing the United States does, the Department 

of Justice [does], is to do discovery at a level that was just difficult and challenging for us. 

They sent in FBI agents to photocopy every school board record that one could imagine. It 

was so detailed that there were photographs of ashtrays. The agents were told to photograph 

everything. They photographed everything. What that meant was we had this enormous 

amount of material that was not only available to Justice Department lawyers but to us. [We 

now] had the underlying facts to know how the system was operating in Mobile. 

Mobile was not a place where, at least by that point, the school board was saying, 

this is a white school, this is a Black school. But there were white schools and Black 

schools, a result that was obtained by lots of things together. [01:20:10] How students were 



26 
 

transported, where schools were constructed, where temporary facilities were placed, how 

teachers were moved around the system. And that became the basis for our analysis of the 

methodology of discrimination in Mobile, which then, as we developed and developed very 

much in conjunction with the Department of Justice, argued, ultimately persuasively to the 

courts and the Supreme Court, that all of those methods, how students were transported, 

where schools were built, etc., which were used to segregate, should be used to integrate. 

Good enough for that, then good enough for this. And that's ultimately the issue of the 

Mobile case, which was the companion to the Swann v. Charlotte-Mecklenburg case that 

went to and was decided in the Supreme Court. 

The other totally miscellaneous thing, I'll tell you. But I said part of the fun of all this 

is thinking about the miscellaneous things. It became, that set of hearings [in 1967] was my 

first, the first putting on witnesses in court. One of the things we needed to do was to sort of 

map out where people lived by race. You could then overlay that with transportation and 

construction and the like. [01:22:12] Judge Thomas had no inclination to make things easy 

for us. So, he wouldn't let us put on, as I recall, a planning expert to work with census 

demographic information. Just wouldn't let us do the case. So, I’m the most junior person in 

the room, and I get to examine letter carriers. So, the judge won't let us put on an expert who 

could say, “I've read and aggregated the census data for a couple of years. We'll just call 

letter carriers and ask, ‘Do you deliver on that street? [laughs] Do you knock on that door? 

Can you tell us what the race of that block and this block and so forth?’” And that worked in 

conjunction with the fact that Judge Thomas wanted to adjourn court at three o’clock every 

afternoon to go fishing, ultimately to say, “Okay, you go ahead and prove the demographics 



27 
 

[with an expert].” So, from the importance of discovery to examining letter carriers, that 

[Mobile] was very important [for me]. 

There are two other things about Mobile. One was the absolute, I don't know if 

warmth is the right word, but [absolute] pleasantness and practical assistance of the Cerk's 

Office in the courthouse. Whatever the tensions in the community might be, the 

professionalism of the judicial staff was something I just marveled at. [01:24:26] I had by 

that time had some experience doing some small things in New York courts. And I was 

always afraid of going in and trying to file something with a clerk of a Manhattan court or 

Brooklyn court that I’d just get chewed out. There would have been something wrong, my 

paper wouldn't have been accepted. In the Mobile clerk's office, everything was of 

assistance. I really valued that. 

And the other thing is that for our cooperating attorney there was a wonderful person, 

Vernon Crawford. Vernon was our contact with the community, and he was our host. We had 

some delightful shrimping days on Mobile Bay. I mean, it probably was the Southern 

experience which was the most connected to the community, and that was through the 

cooperating attorney. 

SP: Had that been your first time in the South? And this whole case is Davis v. 

Board of School Commissioners? 

MD: That's right. No, my first time or few times, I had made a commitment to some 

friends who were Peace Corps volunteers. [01:26:11] I probably had made this somewhere 

before I actually got back to the United States, maybe while I was traveling back to the 

United States. I had traveled to South Africa and then to West Africa, spent a couple of 

months doing that. [Somewhere along the way] I made a commitment to help out at a Peace 



28 
 

Corps training site that they were going to work at upon coming back to the United States, at 

Tuskegee. So, our [1964 Kenya] training was in Milwaukee. Peace Corps [since then], 

realizing that Milwaukee is a great setting and a great program, but other settings might add 

value. And Tuskegee, both as a historically Black college and because of its physical setting, 

[the school in addition to its main campus also] had a rural location, in which there were 

tents and training opportunities. [My commitment was] that I would come back and teach 

[there a next group of Kenya Peace Corps volunteers] about cooperatives for a couple of 

weeks. So, in December [1966] and early January, I was down there. I started at the Fund 

and then had a period of leave. And that actually continued through my tenure at the Legal 

Defense Fund. Jack was very hospitable to this fellow who kept on coming up with teaching 

here or doing this or whatever, one of which was to take some weeks to give instructions in 

assisting cooperatives [in Kenya].  

And so, I lived in this rather rural setting in Tuskegee with some amount of [nearby 

community] tension. [01:28:19] There were colleagues in this program who would report 

coming back from visiting a bar, a Black bar and then being instructed by a policeman not to 

do that ever again. So, I was aware of the setting. I probably didn't need to be aware of it in 

that way, but those were a couple of introductory weeks. 

SP: And let's talk about the South Carolina school cases. This is the Greenville and 

Lamar cases. 

MD: Most of my work, [in addition to Mobile], concerned housing and so forth. But 

let me tell you about that. There is some space in recollections that I would like to fill in at 

some point. Lots of cases in South Carolina. And of course, historically a companion case to 

Brown was a South Carolina case. Sometime in 1970, [19]71, or so, a colleague at the Fund 



29 
 

who had responsibilities for coordinating South Carolina cases must have left the Fund. I 

can't place the person, but I was asked to undertake some amount of coordination. A good 

deal of that coordination involved bringing in other Fund lawyers to handle particular 

matters and to address some of the major issue at the time, 1969, 1970, which was bringing 

to a conclusion the all deliberate speed, non-speed, aspect of school desegregation by the 

setting of firm temporal requirements. [01:30:55] Three months from now, this will happen. 

Four months from now, this will happen. It will all be done in the course of this school year. 

So, my name appears on lots of dockets, but work in many [cases] was being really done by 

other people who I was coordinating. 

There was one set of cases in Greenville and then in Darlington County, which rose 

to the Fourth Circuit, [that I did brief and argue]. This should have been at the very 

beginning of 1970. I can fine tune these dates, one of which had the feature of a large 

setting, Greenville, and therefore some issues which resembled the Mobile’s school issues, a 

variety of school settings and a variety of techniques that had been used by the school 

system. [01:32:12] And then [Lamar in] Darlington, which is a rural setting. We had an 

argument, [which I took part in], before the Fourth Circuit in which Judge Haynsworth, 

Clement Haynsworth, was a member [of our panel], I guess the presiding judge on the 

panel. The thrust of our presentation, as I can recall it, was to bring those systems [into 

prompt compliance]. In the meantime, there were other hearings regarding many other 

districts in the state, [all intended to require desegregation] into a time requirement. Right 

now, even before the end of the school year.  

There was a certain resistance by the Fourth Circuit. But they reached a point in 

which, Haynsworth, writing for the Court, said, “We've been told, and therefore it shall be 



30 
 

done.” This, by the way, was only shortly after Haynsworth was rejected in his nomination 

to the Supreme Court. Confirmation effort rejects him. The part of that I most remember 

[from that argument] is the First Circuit [correction: Fourth Circuit] has this ritual. It's a 

really wonderful ritual of after an argument. The judges come down, and the lawyers pass 

by and shake hands. [01:34:07] It shrinks the distance between lawyers and judges, and I 

think this memory is right in what I'm saying. The NAACP, not the Legal Defense Fund but 

the NAACP, had just been significant in having him rejected, but he was as warm as could 

be. I guess I shouldn't have expected anything other than that, but I was struck by that. 

SP: There was violence in Lamar, wasn't there, in relation to this case? 

MD: There was violence in Lamar. So, we argued for, and the court system was 

responsive. It shall be done. There were a couple of weeks of reorganization in Greenville 

which had a history and aura of being more progressive. And maybe that's all a very relative 

term. Then there's Lamar and there is violence in Lamar. There is a very poignant set of 

essays in The Crisis, the NAACP magazine newsletter, describing the violence in Lamar. 

And that's a shaking experience. [01:36:11] You know, on the one hand, totally believing the 

objective, it's time to end the dilatory process, to get on with it, to effectuate the changes that 

would have to be made. But to effectuate an experience that kids go through, and it is of 

course not unique to Lamar, although they reached a point of danger, went beyond the 

terrible events of shouting at kids to the actual shaking of busses, breaking glass, and so 

forth. And that's just kind of something of a shaking experience for a lawyer. We move on to 

other cases and so forth. But there can be no pretending that it's, oh, just another event in the 

year or in the course of school kids’ lives. I'm not quite sure what the follow-up was. I think 

this is a part of the litigation that the Department of Justice took over because there was FBI 



31 
 

involvement, and a worker in Jean Fairfax's office, Jean did community relations [for the 

Fund], met with our cooperating attorneys. [01:38:10] I can get you the name. Robert 

Vogel? I can get you the name, to see whether there was follow-up. I didn't take part in any 

follow-up litigation. 

SP: Did you ever feel personally threatened and frightened when this violence did 

happen?  

MD: I can honestly say no. And not that I was in any circumstances in the South that 

would have raised that question. We were only intended to be in the main city in which the 

courthouse would be. So, I didn't have the experience that many other Fund lawyers did and 

certainly not the experiences of driving from one place to another [on country roads]. I did 

in the North, whether it be working in New York City or Newark or other places, and in 

which residential patterns were such that you could clearly identify a ghetto. And where, 

such as Newark, there had been rebellion. I tended to get around, and I felt okay about that, 

but I just didn't have the experiences in the South that may have led to apprehension. 

SP: I'd like to talk about Newark now, if you're ready to. So, it all started in Newark 

in the summer of [19]67 when some of these issues began. Can you talk about your 

involvement in Newark, your early impressions of what was happening there? [01:40:28] 

MD: Sure. If I had to identify several salient experiences I had at the Fund and 

salient in numbers of ways, the issues, the place, the people, the Newark experience was at 

the center of that. The issue in Newark, well, it's always false to say “the issue,” it was 

circumstances and places of multiple issues, but the focus of our involvement and a good 

deal of the intensity of involvement of people in Newark concerned the state's plan to locate 

a large new campus of the New Jersey College of Medicine and Dentistry smack in the 



32 
 

middle of the central ward of Newark. This was a plan that was in development over the 

course of some time. It would displace enormous numbers of people. [01:42:03] With plans 

and projections to build over 150 acres, which would mean 150 acres of displacement, a 

facility [that were would be] which by comparison to other medical schools and centers and 

related hospitals would have been far less [in size elsewhere] around the country. 

Nonetheless, the medical school and the city of Newark were plowing straight ahead.  

There was an acrimonious public hearing in, this would have been June of [19]67. 

And then within a few weeks, there was an arrest of a taxi driver, word spread of beatings in 

the police station, and the city erupted. Perhaps other events could have precipitated it but 

those were the specific ones. Our involvement with Newark came about probably in several 

ways. And it's one of those things, I think, if we were to go back and look at files of 

correspondence they sent and kept, there maybe some additional texture to it. But in that 

community, there was an extraordinary person whose name was Louise Epperson who tells 

the story of picking up the newspaper one day and reading about plans for this College of 

Medicine and Dentistry. [01:44:19] It would include where she lives and where her 

neighbors live. And part of what she was exposing how this whole system federal law and 

regulations has about public hearings and so forth would count for very little. When the 

public hearing notice says, at 10 o’clock [on a weekday] in the morning in the community in 

which people are working there will be a hearing about something, which just doesn't get to 

a community at large. Anyway, Louise Epperson reads about it and calls in neighbors, and 

they, in the course of some short amount of time, form an organization called the Committee 

Against Negro and Puerto Rican Removal. They are then connected through a truly 

extraordinary, at the time Yale law student. His name is Junius Williams. Junius had, in the 



33 
 

course of his own development, political and social development, social in the broad sense, 

connected with the Students for Democratic Society, Tom Hayden, and was asked to go to 

Newark [01:46:04] and take initial steps of community organization, how to help the various 

parts of the community come together around objectives and how to achieve those 

objectives.   

The third thing that's happening is Gus Heningburg, who was very important to the 

Legal Defense Fund. [Gus] was a fundraiser [for the Legal Defense Fund] with significant 

community connections in Newark and elsewhere. As articulate and informed as one could 

imagine, he was close to Jack Greenberg. [He contacted] the Fund and says, “Here's 

something happening that you ought to be involved with,” and so forth. I don't think 

anything matures from that. Nothing does mature from that. But it's there, that constellation 

of things, Louise Epperson, and her organization, Junius Williams, Gus Heningburg, the 

“riots” or “rebellion,” as [Newark] people came to prefer calling it, occur. And contacts with 

the Fund accelerate. By September [1967], the paper trail is clear. I had been involved and 

became involved with it. [01:48:04] Junius was doing a number of things. And we began to 

do a number of things to lay the groundwork for some kind of remedy [for the medical 

school issue]. Now, what would that remedy be? And here, I think, the point to me upon 

reflection about the Fund [in that period], is this. In fact, [an urban redress methodology] 

had been in the course of development for a year or two, not [specifically for] Newark, but, 

the methodology of approaching urban issues that involved major departments of the federal 

government and a state government as well as local government in interaction with 

communities.   



34 
 

That’s what the Fund had come to realize, and first implemented in Pulaski, 

Tennessee. I have no idea how they got to Pulaski, Tennessee. That’s an original matter, but 

it was a [good place to test new complaint procedures]. It was a manageable size community 

with an urban renewal problem, in which the urban renewal plan, as plans around the 

country, simply failed to implement, be faithful to obligations to provide alternative housing 

and alternative futures for people affected by urban renewal. [The Fund’s developing] 

methodology included developing an administrative approach to the responsible agencies of 

the federal government, significantly the Department of Housing and Urban Development. 

[01:50:08] When highways were involved, [also] the Federal Highway Administration, the 

Department of Transportation. [In an administrative complaint] an analysis would be 

provided, and a remedy sought that would become the basis, if the administrative complaint 

was disregarded, for litigation. Trying to learn something from the law of administrative 

agencies, [we sought to learn and apply] what would be expected as a foundation for a claim 

[in court] that a secretary of a department or administrator of an agency had failed to do with 

respect to legal obligations. To do that, the Fund needed to develop expertise in the impact 

of federal programs on urban communities. It's one thing to address the failure to hold an 

adequate public hearing. But another thing to actually analyze the manner in which the 

location of a project, a highway, urban renewal, and displacement [by them] would have on 

the ability of people in that community to actually find housing that complied with city code 

requirements [and provide] alternative opportunities for work in whatever neighborhoods 

that housing would be available. [01:52:05] And how that might relate to strictures that 

would be imposed by zoning requirements or other planning requirements that would either 

facilitate or retard that development. And so, the Fund brought on and formed a very 



35 
 

significant relationship with an urban planner whose name was Yale Rabin. Yale would do 

analyses and teach us how to do analyses of the availability or the non-availability of 

housing, working through demographic information, going through the details of city reports 

over time, code enforcement or other reports, in order to allow us on behalf of a community 

group to say this is what your project is actually going to do. This is how it falls short. 

So, to weave two stories together. All these stories get woven together in Nashville. 

In the fall of 1967, the African-American community around Meharry Medical College, 

Fisk, and [also] a level of the Tennessee State system in North Nashville focused on the 

plans of the State Highway Administration, funded by the Federal Highway Administration 

[and the Department of Transportation], to run a part of Interstate I-40 [through that 

community]. [01:54:20] So, the “I” being the Interstate 40, which runs across Tennessee, 

would plow through North Nashville, having a significant impact on those educational 

institutions, and, more generally, Nashville’s center for Black economic life, professional 

life, and so forth. And although this had been sort of in the works, it was in the background. 

The community retained Avon Williams to represent it. Avon, a principal [Fund] cooperating 

attorney, a giant among cooperating attorneys, brought the Fund in. I'm pretty sure I didn't 

go out to [the district court hearing in Nashville. This was still early in] trial court. I’m again 

now just some months into my time at the Fund, but I was beginning to do some work in 

other places and, of course, some work in Newark. At that time, we were very heavily 

engaged in Newark. It [the case filed by Avon] went to the Sixth Circuit Court of Appeals, 

the US Court of Appeals for the Sixth Circuit. We were turned down there and then filed a 

petition for writ of certiorari in the Supreme Court. All this was happening while Newark 

was happening. [01:55:57] That [Nashville] experience, I think, was an absolutely 



36 
 

foundational experience that I had in my personal development as a Legal Defense Fund 

lawyer. As the lowest name on the [lawyers’] list, as I recall it, I had the responsibility to 

write the draft of that part of the [certiorari] petition which told the story. We at that time had 

a preliminary injunction [hearing transcript], our expert testimony, and expert [witness] 

examination by Avon. So, there was a considerable record to put together, [including] 

government reports and the like. I can be absolutely sure that the part of the brief that I 

drafted was made literate only by the reworking by [the Fund’s Deputy Counsel] Jim Nabrit 

and others. It was one of those experiences in which you write the best you can and then get 

a schoolhouse lesson in how to turn something into a graceful and hopefully persuasive part 

of a brief. 

SP: And that was Nashville I-40 Steering Committee v. Ellington. Is that right? 

MD: Yes. That's exactly right. The other aspect of that briefing experience, which I think is 

one that's not unique to me, but part of the wonder of the experience that then young lawyers 

had at the Legal Defense Fund is the part of the effort, [especially in Supreme Court briefs], 

to tell the story. [01:58:05] And then a big part of the [further briefing] effort is to move 

from there to several larger themes that bring along, one hopes brings along, at least at the 

beginning, four Justices to grant certiorari and then a fifth or more on the merits if it gets 

there and tells a larger story. And I've got this present memory of absolutely being in awe 

about that part of the process. Jack Greenberg would say to me, but I'm sure many more 

times to others, if there was one part of a brief that he wanted to be personally involved in it 

would be how the question was formulated. You got lots of argument, what does this case or 

that case say? And what does this part of the record or that part of the record say? But the 

formulation of what the question is for the Court [is the critical first opportunity to frame the 



37 
 

issue and begin persuasion]. Something I remember from Nashville, was Jack working over 

[that question]. 

The other thing was his ability and experience in bringing in others. In this case, it was 

Charlie Black, Professor Charles Black at Yale, to also conceptualize in a large way what 

this case was all about. [01:59:58] At the heart of this case was that the record showed that 

the state, with the approval of the federal government, had an initial plan which in the 

planning phase, which had gone on for years, avoided much of the destruction that was now 

about to occur. That was a straight-line direction of the highway. And then, for reason or no 

reason, there was never an adequate explanation, the plan changes. The highway takes a jog 

[that] has this considerable impact and can't be explained. And what Charlie Black and Jack, 

and Jim, [when he] was not cleaning up my own prose on the facts, but the three of 

them together [addressed was this]. Oh, yeah all that's happening, but [then there is the 

rebuttal from the state]. You can't find the memo that says this is why we're doing it, and so 

you can't describe what the proof of the malign intent was. [The response to that was] the 

history of Legal Defense Fund litigation, which among other things, [drew upon] Chinese 

launderers in San Francisco and gerrymandering around Tuskegee. [02:02:11] You look at 

what's done, and if you can't get a good explanation for it in a setting in which there is a 

background of racial, not only indifference, but hostility, [plus racial impact], that's enough. 

You look at the effect of it and that's enough. Ultimately, the Supreme Court denied 

certiorari [in the Nashville case]. Some adjustments on the highway occurred but that issue 

remained and became a very important part of other cases and a very important part of my 

own experience in litigation [at the Fund]. How do you go beyond an effort, not to be 

fruitful, to find the secret memo, but to look at what is actually happening with expertise, 



38 
 

planning officials, and detailed examination of government records to make the case: It 

couldn't have been for a good reason.  [If it was for a good reason], they would have given 

the good reason or the good evidence [for it]. It was because of the malign intent. 

SP: I want to talk about you arriving in Newark a little bit more and starting that 

work. When you go in, it's the summer of 1967 and it had been such a charged time. What 

was it like to actually just go in there and start talking to people and working on this? Did 

you, I assume that you met with and got to know Louise Epperson a little bit? [02:04:04] 

MD: Sure. In terms of time and the continuing development of the matter, Junius 

Williams was our principal contact, but I got to know Louise and the person that she 

associated with as a principal colleague, Harry Wheeler, who was a Newark school teacher. 

Lots of time in Newark. Probably, well, it included things that, you know what I'll do? I'll 

give you a little chronology and provide the answer in connection with that. The Legal 

Defense Fund, which had begun to bring in the work of planners, brought in Yale Rabin to 

do a planning analysis of the impact of the medical school plan on housing opportunities. 

Separately, Junius engaged an architect planner at Yale, who had a class which he made 

available for public issues, to develop an alternative plan for the medical school. Not that 

they would build that plan, but to demonstrate that the medical school could do with 17 

acres and do everything that it proposed to do. [02:06:10] Probably it was even generous to 

provide 17 acres and certainly [not necessary to have] didn't need 150 or more acres. 

Junius's conception was, I think, very right, it's not enough just to say, no. It's important to 

say it can be done, but this is an alternative way of doing it. And so, the Legal Defense Fund 

planner developed the facts that Newark really doesn't have the alternative housing when 



39 
 

you look at the city [as a whole]. And the Yale architect [shows] you can do this, but you 

don't need to do it [the way proposed].  

I had a number of visits to Newark in the course of the formation of our 

administrative complaint, which is one that went beyond the relocation issues and size 

issues, both of which were prominent, to then ask a broader range of questions. And for 

these, we ended up with a number of different conversations with different people. So, 

among other things, we together with, and this is now together with Junius and Louise and 

Harry Wheeler, but a lot with Junius, asked the question, “Well, who's going to build this 

facility, [whose health needs would be met by it],  and who's going to work there?” 

[02:08:04] That’s one that Gus Heningburg had a strong interest in, working out 

relationships and requirements regarding apprenticeships and opportunities in the 

construction trades and talking with medical people interested in medical services about 

employment at the hospital itself, going beyond construction. And so, asking ourselves this 

range of issues and trying to identify who within governmental systems, federal, state, and 

local, were interested in those issues. That brought us immediately to a judgment that this 

should not only be addressed to the Department of Housing and Urban Development, but to 

the Department of Health, Education, and Welfare, and not only at the federal level, but their 

state counterparts for all that, as well as a state counterpart for community development. 

And then there were the entities on the ground level, the actual medical school, and Newark 

Housing Authority. Those discussions occurred over the course of several months leading to 

the filing of our administrative complaint, which we articulated as a complaint against the 

City of Newark and the Newark Housing Authority, but [which we also] addressed to the 

federal entities involved. I don't want to leave the impression we thought through everything 



40 
 

as finely as could be. [02:10:08] But, our general parameters were, although our immediate 

problems were with the medical school and the housing authority, we wanted the authorities 

that had the money to come to the conclusion that they needed to act in relationship to the 

state and local officials. And also that there was a likelihood that, and Jack was rather 

explicit in telegrams and other communications, we would need to take some action, not 

necessarily in a threatening way, our chances of success are never knowable, but in terms of 

clarity, that we were in this for the long haul. But we're still interested in they not being 

adversaries but being allies in this process.  

The important ally, absolutely central ally, had to then be the governor. So, it all 

began to come together after our administrative complaint was submitted, addressed to state 

and city authorities, but brought to the attention of federal secretaries and state officials. 

[02:12:00] That matured into a set of requirements that the undersecretaries of HUD and 

HEW sent to the governor. I'm paraphrasing, “We very much want to provide federal 

funding, but these questions need to be answered.” That list of questions then became the 

basis of a set of negotiations between various entities presided over by the State Chancellor 

of Education Ralph Dungan, in which community people were at the table. The city was at 

the table. The Newark Housing Authority was at the table. Leading, over after six or so long 

night sessions, to a set of agreements called the Newark Agreements. Those are agreements 

which I've been very pleased to learn in the last year or so are still discussed within the 

Newark community as a template for approaching issues which have continued. Obviously, 

the school was built on shrunken area and housing units were provided. But there were also 

continuing obligations in terms of providing medical services to the Newark community. 



41 
 

Recently there are doctors and others who have turned to these agreements as being a [long-

term] charter. [02:14:09] 

The discussions [leading to the Newark Agreements] occurred at night. This is going 

back to early 1968. They were long [sessions]. At first, the state was reluctant to call them 

negotiations, trying to keep them more in the hearing phase in which there are officials, and 

they hear the concerns of people rather than try to bargain. But they turned into negotiations. 

There was a recognition of the [community’s] negotiating team. There is a, I think quite 

remarkable, set of transcripts, which I'm not sure have ever been worked through in the 

detail that they merit. Detailed, verbatim transcripts as the negotiating team and the state 

officials, and the local officials move from issue to issue, and then move into drafting 

phases. It was in the drafting part that I probably, this is a personal [observation], had the 

fullest occasion to get deeply into the particulars of the solution. Obviously, we were heavily 

engaged in the particulars of the complaint, but also the particulars of the solution. I very 

much appreciated the welcome that the members of the negotiating team had for that kind of 

assistance. [02:16:06] In the end, it's challenging enough to be at work, or in the case of 

Junius Williams, being at Yale for two days and rushing from New Haven and getting back 

and somehow fitting in in the course of a night his reading. It's another thing to do all that 

and to fine tune the text of an agreement. So, we developed a relationship in which they 

were comfortable, the state was, and I was comfortable. I valued the chance to engage in 

that aspect of the negotiation. 

SP: Another case we want to talk about is, down in West Virginia, the Triangle 

Improvement Council v. Ritchie. And that was in Charleston, West Virginia, is that correct? 



42 
 

MD: That was in Charleston. I'm going to say of all the experiences I had—and 

there are some that worked out well in terms of an outcome, a good outcome in court, 

Newark, for example. That one was [among the] disappointing. Well, just as a little bit of 

background. There was an area of Charleston, the state capital [of West Virginia], which was 

called the Triangle. It had a rich history, but by the 1960s, 1970s, it was a worn-down part of 

Charleston. [02:18:15] I don't think there was much disagreement that it needed attention, 

whatever attention could be generated from federal officials. And, obviously, state officials 

as well. But there were people there, and they were the target of a planned removal through 

a highway that would go through it. We set out to be as modest as possible in how we 

articulated our legal theory and what our objectives were [which was to obtain for residents 

of the Triangle compliance with Congress’s mandate that they be assured adequate 

relocation housing]. So, this was not an effort like Nashville to say, “Stop building that 

highway, move it over there.” Affect white institutions as much as you affect African 

American or other minority institutions.” But this was an effort to be responsive and 

responsible to the people who [were or had been] living there, who were going through 

enormous stress, for some caused by [highway] dislocation, for others by urban renewal or 

other changes, [but had not been afforded adequate replacement housing].  

We had as inhospitable a federal district judge as one could can imagine. I knew that 

Judge Thomas in the Southern District of Alabama wanted to go fishing every three o’clock 

in the afternoon. [02:20:07] [In his court], you lived with that. But Judge Fields [in 

Charleston], I'll never forget his monologue [in court] going on and on saying, “This is Alice 

in Wonderland.” This is the judge speaking. “A federal highway, federal funds. The state is 

receiving federal funds. There was a legal services project that was immediately 



43 
 

representing the Triangle Improvement Committee, and it was receiving federal funds. This 

is all Alice in Wonderland.” He just didn't like being there and didn't like the scene in front 

of him. Normally when a judge says uncomfortable things, the better thing is just to let it go. 

But I do remember getting up and saying, “I'm here from the NAACP Legal Defense Fund. 

We receive no federal funds. We receive contributions from people who believe in the 

causes we represent.” That didn't change his view of what the outcome would be. I think it 

was the only time that I ever got up and [said in essence] to [a judge], “Why are you saying 

what you're saying?” 

What came out positively about that case was after we lost in the district court 

without an opinion, and just procuring a one-line rejection from a panel of the Fourth 

Circuit. [02:22:01], we sought rehearing [by the full Fourth Circuit] and two judges of the 

full Circuit, Judge Sobeloff and Judge Winter, with Judge Sobeloff writing, wrote this 

absolutely incisive, accurate, flowing, think of any number of good words, dissenting 

opinion. 

Then the Supreme Court granted certiorari. [That certiorari petition in Fall 1970] was 

probably one of the last things I did before my wife, and I went off on a deferred 

honeymoon to South America for the better part of a year. I wasn't in the States when the 

full case on the merits was briefed and then argued by Jack [in March 1971]. And this 

unusual thing, this infrequent thing then happened. Although the Supreme Court had granted 

certiorari, [meaning that] at least four Justices had voted to hear the case on the merits, after 

argument, the five Justices who presumably had all voted against certiorari, notwithstanding 

what they call a rule of four, which is if four Justices want to hear a case on the merits, 

they'll all hear the case on the merits and write a decision. Even if no fifth Justice moves, 



44 
 

they’ll treat this as a case which merits a full decision. They did not. [02:24:00] And Justice 

Douglas wrote a rather full dissenting opinion on that, explaining the case, contributing a lot 

to an understanding of what the federal government's relocation obligations might be. I can 

only hope, and I would imagine, that opinions like that have some kind of life, including 

within the federal organizations that run these programs. And that something was achieved 

through it, but I was forever remorseful that we were unable to do something for the people 

who had lived there. 

SP: How do you balance that feeling remorseful and then, on the other hand, 

sometimes having these wonderful victories in your work, how do you balance the wins and 

the losses? 

MD: Well, it's tough. There is Doctor Pangloss in Voltaire's Candide who always 

muses about the best of all possible worlds, even when plague and war might be happening. 

One wants to win everything or change every result. And that, of course, isn't going to 

happen. There are legal experiences along the way that do convey that good things can 

happen. I think the negotiations in Newark were an example of that. [02:26:00] To a great 

extent, we had a related experience in Selma, Alabama, in which, again, several entities 

were involved, and of course, Selma itself. Representing a community group with Yale 

Rabin, our planner’s assistance, we were able to help the federal authorities, the city, and 

local people move to some understanding, memorialized in a document called the Selma 

Accord, which helped shape planning decisions for some significant number of years in 

Selma. I think the key lesson I learned about that is it is often better to reach a settlement 

than it is to have, as satisfying as it is, a courtroom victory. Although I hope that maybe we'll 

talk a little bit about Lackawanna before we wind up. The thing about settlement, reaching 



45 
 

agreement, getting the right people in the room, which is often more than one agency of 

government or a complex system in which work gets parceled out, but effects come 

together, is [reaching] an [agreement] that gives benefit to everyone, an incentive to 

everyone to see things through. [02:28:10] So obviously in Newark, a medical school was 

built and work done on the city hospital. Perhaps someone could have hoped for something 

better or continuing with respect to the city hospital, but it occurred, and people [in Newark 

have] referred to it in times that followed as a template. And I have looked at the results of 

some online newspaper searches in terms of Selma. Although I can’t now give you the 

details, the [1972] Accord there has been referenced from time to time as a template for 

resolving subsequent issues in [Selma]. In such cases, the government would gain 

something, the community would gain something, and there would be an articulation of it, 

even if there was not a [judicial] “so ordered” part of it. Although there may have been a “so 

ordered” aspect of an urban renewal case that had been brought in the Selma area, but that's 

for other records to determine. The Lackawanna— 

SP: And this is Kennedy Parks Home Association? 

MD: That's right. The City of Lackawanna, I’m going to be using a lot of your tape 

[laughs] but let me tell you a little bit about that. [02:30:00] Lackawanna is a city adjoining 

Buffalo, New York, and this matter that I'll describe is the late 1960s, early 1970s. 

Lackawanna at the time, and I don't know how much it's changed in more current years, was 

as rigidly segregated a city as one can imagine, with all of the bad circumstances that are 

possible visited on the Black section of town, which was in the first ward of Lackawanna. 

Picture wards moving [inland] from Lake Erie. [First, the First Ward, then the Second Ward, 

and [furthest from the lake], the Third ward. The First Ward was where Bethlehem Steel’s 



46 
 

plant was located. At the time and years after, one could see grit and smoke belch from 

Bethlehem Steel facilities. I won't forget that. I've told you a number of things that I won't 

forget. So, I may be running out of those, but I won't forget walking in the First Ward and 

seeing my footprints on the pavement. There was just so much grime there. 

The Archdiocese of Buffalo, a terrific bishop, heading the diocese and two wonderful 

lawyers [for the Diocese]. [02:32:11] One was Charles Desmond, who was, for a period of 

years, the Chief Judge of the New York State Court of Appeals. In New York what we think 

of elsewhere as the State Supreme Court was the New York Court of Appeals and the State 

Supreme Court was a trial court. Charles Desmond, [former] Chief Judge of the Court of 

Appeals and the fulltime [lawyer] for the Diocese, Kevin Kennedy, together with the 

Bishop, organized a sale, initially a promise of the sale and then a sale, to a group in 

Lackawanna [named the Colored People’s Civic and Political Organization], which [as the 

name suggests], was an old civil rights group. And I can’t give you the exact name, but it 

has the name of Colored People’s Association. I just only mention the name, because you 

might get a sense of how old the organization [was]. The diocese was assisting them in 

forming a new entity called Kennedy Park Homes Association, to which the diocese would 

convey some vacant diocese land in the Third Ward, the whitest of [Lackawanna’s] wards. 

[The objective was to] enable the newly formed entity, Kennedy [Park Homes], to build 

federally subsidized housing that would be available to its members at affordable costs. 

[02:34:05]  

The city turned to the attack and began to come up with every reason why this 

couldn't happen including “Oh, my goodness. We need the space for parks. We've got 

sewerage problems in the city that wouldn’t stop any other development but would stop this 



47 
 

development.” One of the things I marvel at is that Charlie Desmond, early on, [staked his] 

considerable reputation, on saying “If you do that, that would be unconstitutional.” That sort 

of gave us a lot of confidence when the contact was made by the head of the NAACP in the 

[Buffalo] area, Will Gibson, an attorney, who asked the Fund to come in and represent the 

plaintiff organizations, Kennedy Park and the individuals involved. [Our case was tried] 

before a terrific federal judge, by the name of John Curtin, who was absolutely dedicated to 

giving us all, the city also, an opportunity to build a record. You want to win in a district 

judge’s chamber or court [Correction: You want to win in a district court]. [02:36:02] But 

you certainly want the opportunity to build that record. We had a long trial that was assisted 

by the Department of Justice intervening in one of the very last actions that Ramsey Clark, 

who was Lyndon Johnson's final Attorney General, made to authorize [at the end of 1968] 

the intervention of the Department of Justice. 

I'm going to connect this to the Clark family. I promised to connect, I’ll connect it to 

the Clark family. We had a long trial. Judge Curtin was persuaded in the end that we’d made 

the case that the invocation of the park and sewerage objections were fabrications. They 

weren't supported by the record. He granted relief. We then had to defend against an appeal 

that the City of Lackawanna filed in the Second Circuit. That was my last argument before 

going off on our extended honeymoon. And it was a wonderful argument – [important 

issues, a full trial record, terrific co-counsel representing the Church and the Department of 

Justice (a great combination), and then an added bonus.] There sitting—and in part was 

wonderful by walking into the courtroom and seeing sitting—in the middle of the three-

judge [Second Circuit] panel was retired Justice Tom Clark. I'm absolutely sure the fact that 

his son Ramsey had authorized the Department of Justice, had nothing to do. [02:38:06] But 



48 
 

what had something to do was you go back on the argument, I’ve thought of in history with 

Tom Clark's relationship with Thurgood Marshall. It was an important relationship. 

Marshall, [at the Fund], would call upon the Department of Justice, [when Clark was 

Attorney General], calling on him to intervene or take positions. They clearly had a 

connection that enabled them to see things compatibly. Marshall's not at the Legal Defense 

Fund at the time [of the Lackawanna case]. This is all historical. One example of Clark and 

Marshall’s kindred spirit was the brief Clark filed with his Solicitor General in the restrictive 

covenant case, Shelley v. Kraemer. That was 1948. Truman was beginning to take some 

steps in a good direction. He was about to, if he hadn't already, issued the orders to 

desegregate the armed services. These were all initial steps. Clark with his Solicitor General 

then came in on the side of the Legal Defense Fund and its allies in the restrictive covenant 

cases. They [submitted to the Court], wrote this detailed historical piece that went across 

government agencies on the impact of restrictions on the opportunities of Black Americans 

to live beyond those parts of urban areas designated for them. [02:40:09] One of the great 

amicus briefs, I think, in Supreme Court history. [And then, two decades later], Clark wrote 

a great decision for us in the Lackawanna case, [addressing a different, but also pernicious, 

form of housing discrimination]. 

A reason why [Lackawanna was a] part of my [Fund] experience that I remember 

most warmly is that even as the Nixon Administration began to move away from fair 

housing requirements, which it did with respect to efforts by the Department of Housing and 

Urban Development [to continue fair housing requirements] from Robert Weaver's [HUD]  

to George [Romney’s, Nixon recognized the force of the Second Circuit’s Lackawanna 

decision]. Nixon very much wanted to curtail his own agency from making [administrative] 



49 
 

requirements for fair housing opportunities available in suburban areas and so forth. Nixon 

was persuaded to say, however, “But I'm not talking about cases in which a court has found 

on the evidence, that restrictions are not based on objective grounds, but based on racial 

discrimination.”  His specific example was Lackawanna. That became clear and I think 

some of this took a little while to make public [through White House tapes], but anyway, it 

was made public. [02:42:08]. The Lackawanna case [thus had], in fact, [continuing] 

importance. [All this is to say], at least there you lose some, and then some have continuing 

viability of some cases, and the viability may be in the courts, but they may also be in the 

way administrators or perhaps Presidents articulate what their obligations are. 

SP: You left LDF eventually. And you went to teach law at the State University of 

New York in Buffalo. You worked primarily in the clinical program. Is that right? Can you 

talk about making the decision to leave LDF and go into teaching? 

MD: Okay. I’ll do that, but I’ll tell you there was one interlude between LDF and 

[teaching] which I may not have described to you, I don't know, one interlude between LDF 

and teaching. For a year plus some time, I headed a small office in New York City 

government, [a Housing Litigation Bureau, that was created] to bring legal actions to 

enforce the city's housing code in. And there was a housing litigation bureau. This was the 

very end of the John Lindsay administration. The state had passed, and this must have been 

a New York City action to create a housing court, which, among other things, would have 

enhanced abilities to enforce the city's housing code. [02:44:11] I was attracted to that 

because of one thing. And at some point we should go back to one other case at the Legal 

Defense Fund--. I was attracted by the opportunity to work on matters in which there was 

something very specific, a specific tenant who was having an adverse experience with leaks 



50 
 

in the [apartment] house or vermin in it and needed municipal assistance to have that 

remedied. [Cases] in which you could actually look at the apartment or the building or the 

individual and say, “We're doing something to achieve a better result for that individual or 

that group of individuals.” Sometimes that would arise and I'll tell you about one at the 

Legal Defense Fund. But often the Legal Defense Fund’s cases were a bit more global. And 

you want this improvement to be done, this statute to be enforced, it will have an effect on 

an individual, but it's not that immediate. Maybe you're not talking to that particular person. 

And so, I helped bring this [city] office into being. I think the best thing that I did was to say 

to the lawyers who got into this, who were great group of [young] lawyers, “We're not going 

to do this just on the basis of paper, getting something from housing inspectors and [then] 

going off to [court].”  A lot of government lawyers have that experience. [02:46:08] They 

get charging information, and then they go off to court. “We're going to go out and actually 

visit each one of these places so that when you’re up before a housing court judge 

describing something, you may rely upon records, but you also speak with the knowledge 

and intimacy of the circumstance of actually having come and spoken to someone, actually 

seen someone.” 

That experience for me wound up [concluded] with the change of administration in 

city government. And so, I needed to do something else. And I was crossing a street in 

Manhattan when a friend leaned out of a bus and said, “I hear you're going to look for 

something new. Have you thought about the State University of New York [at Buffalo] Law 

School? They're looking for someone in their clinical program.” Then the bus goes on. So, I 

said, “Okay, I'll follow up on that.” And, yes, I spent three years there. One part of which 

was initially getting a set of cases, which were open for assignment, needed assignment. 



51 
 

They were habeas cases that the District Judge, John Curtin, who had presided over the 

Lackawanna case and then become Chief Judge of the Western District of New York, had 

difficulty finding lawyers to whom to assign these cases. [02:48:26] There was no system of 

compensation at the time or one that was helpful in any significant way. The first immediate 

thing about that experience, again, one that’ll just stay with me, is sitting with the judge 

saying, “We've got 10 or so students in this seminar, and each will take a case. Do you have 

cases that could be assigned?” [The judge] calls in the clerk, describes the interest. The clerk 

brings in a ladder, climbs up, reaches on the top of a bookcase, and starts taking cases [files] 

down. And literally dust is flying off them. These were prisoners in the state system and 

there was dust on their trial jackets because the District Judge couldn't find lawyers to take 

the case. 

And so, I took the assignment, knowing that it would be students who would work, 

they’d work under supervision. They [provided] absolutely remarkable [service]. What I 

[think of as] the [main] principle involved is that it makes all the difference to have a 

lawyer—these [happened to be] third-year or some second-year law students—who is 

dedicated to that case. [02:50:20]. These are students who have work in other courses, but 

[this is] in terms of cases, the one they feel an obligation for, this is it. Their intensity and 

thoroughness [were significant]. And just like I described how I asked housing lawyers to go 

out and actually visit a site and speak to people, I said, “Even though you're going to do this 

on the basis of the written record, and you can’t add to the record on the habeas proceeding. 

It's going to be based upon the existing record. [Nevertheless], you need to go out [to a 

prison] and spend time with your client to give him,” I think they were all hims, “the chance 

to explain. Maybe you'll understand something more about the written record. But mostly 



52 
 

you'll give that person the chance to describe his experience. You'll be the better lawyer for 

that.” We lost some, but we also won some for people who deserved to either get a new trial 

or to be released. 

There were other aspects of [my teaching at Buffalo] which included my first 

argument I made in the Supreme Court, Nyquist v. Mauclet, which I did with some research 

help from the students there and also with my wife, Karen, who did some research on it, [all 

while Buffalo experienced a famous blizzard]. [02:52:06] 

SP: I want to ask you a bit about the state of clinical legal education at that time, 

because it was still pretty, it was a relatively new concept, right? 

MD: Yes, it was. And I benefited from being good friends of two pioneers in that 

effort, both of whom had been Legal Defense Fund lawyers, Michael Meltsner and Philip 

Schrag, who when they left the Legal Defense Fund, and I was still there at the time, went to 

Columbia, and did some of the truly pioneering work in clinical education. They have a 

volume out which they interviewed me for a chapter. Did I ever send it to you? But it was 

one of those things if it [some of the experiences described] hadn't been written down then, I 

think I would not be remembering now. It was a chapter on post-litigation. What do you do 

after you either win or lose a case? How do you see some relief further on? And what 

obligations do you undertake, having won, but something that needs time and further action 

to implement? 

SP: And do you want to talk a little bit about, because you just mentioned it, about 

that Supreme Court case. This is in 1977. It's Nyquist v. Mauclet. [02:54:00] 

MD: Okay. Nyquist v. Mauclet. This is going to begin with, how did I have my first 

conversation with Jean-Marie Mauclet [about his legal problem]? He was a graduate student 



53 
 

at the State University of New York in Buffalo, in the arts. Jean-Marie was painting our 

house in Buffalo. We had bought this wonderful sprawling house, part of which was built in 

1840, and other parts at other decades after. Jean-Marie was married to a [daughter of one of 

the lawyers] for the Archdiocese of Buffalo, Kevin Kennedy, [with whom I had litigated the 

Lackawanna case. Somehow that acquaintanceship led to our hiring] Jean-Marie to paint. I 

guess we hired Jean-Marie connected with the Kennedy family. Jean-Marie's painting our 

house. He’s on a ladder up to the second floor. I'm working in a room on the second floor. 

Jean-Marie knocks on the window and says, “I've got this legal issue. Can I talk to you 

about it?” So, I said, “Sure. Once you get off the ladder, come in and we'll talk.” And he 

described his having come to the United States, [becoming a permanent resident, that] he 

was eligible to apply for citizenship, but he wasn't ready to give up his French citizenship. 

Ultimately, he became a U.S. citizen and has lived his full life here in the United States. But 

he wasn't ready to do that. [02:56:04] So, we put together a case, essentially involving 

discrimination against resident permanent aliens, which ended up before Judge Curtin, who 

had the Lackawanna case. It was a case involving the constitutionality of a New York state 

law. There was a companion case involving a Canadian citizen who was attending Brooklyn 

College, who was also denied some form of state assistance because he wasn't a U.S. citizen. 

The two cases got put together [before] a three-judge [district] court and from there to the 

Supreme Court. I think it was, at least in that period of time, the last case that worked out 

successfully for an immigrant alien. Then the Court went through a period of time in which 

it was very hard to get relief. It worked out [for us] five-four, striking it down. 

I would tell this story to law students, saying, “Someone wants to talk to you about a 

legal problem, have that conversation. Don't be the kind of lawyer who shortcuts 



54 
 

conversations, [thinking or saying], ‘Oh well, that’s too big, too complicated for me, 

whatever.’ Something might be there.” [02:58:00] 

From painting a house, being on a ladder, and knocking on a window, I think that 

case, which we argued in 1977 was very helpful in my getting the job of Senate Legal 

Counsel because I was fresh from having had a very good experience in the Supreme Court. 

The thing I’ve loved most about that case, though, were my father's reflections on it. My 

mother and father came down from New York, from Brooklyn, to hear the argument in the 

case, and my father, who would be alive just for a couple of [more] years, had an oral 

history at Brooklyn College because he had a magnificent 40-year career there.  At the end 

of the oral history, after having gone through the history of the college, he says, “Now I 

want to tell you something about my family.” He wasn't going to let this end without that, 

and he spoke about my brother Gordon, who is a director and producer. And then he said, “I 

just had the chance to come down hear to my son Michael plead a case before the Supreme 

Court.” And I so loved the language, “plead [a case].” It was a kind of literary thing, [that 

my father, who had a theater life, would say]. Most people would say “argue” a case and 

here was an opportunity, and he didn't live too much longer, to hear me plead a case. 

[03:00:08] [It meant a great deal for him, as it did for me]. So, I loved the legal issues and 

all that, but I [also loved] that family part of it. 

SP: What is it like to be before the Supreme Court? 

MD: In the several times I've done it, I felt comfortable. I have treated it in each case 

as a conversation in which I had information to provide to the Court. In the several cases 

I've had [there, I paid] the greatest attention to the history of the matter, the history of a 

problem, the history of a solution. You obviously need to talk about some cases, but they get 



55 
 

to read, they know the cases, what they don't know is sort of how this all happened. And 

there [may be] aspects of the case which [may be influential even if] the final decision has 

no [express] relationship to [it]. [For] Jean-Marie, by the time all this arose, [he] was 

married to an American, had a citizen child. He had commitment to this country and the 

country had promised in return to him, even if he wasn't ready to make a citizenship 

determination. One of the Justices pointed out, “But your argument would be the same for 

anyone else.” [03:02:04] And I said, “That's right. But this is this person.” And I would 

always, of course not always in that it's a vast number, but I would try to do this in relation 

to an individual and that person's connection with this problem or non-connection with this 

problem. In any event, it happily worked out well for Jean-Marie, who unhappily for their 

marriage that somehow dissolved over the course of time. But I think each party to that then 

found a good path for them. And he [became a citizen and] went down to South Carolina to 

open an art gallery and a restaurant. 

SP: I've just noticed that so much when you're talking about a lot of your work, a lot 

of it has to do with you listening carefully to people, paying attention to the needs of 

individual clients in these really specific communities. Looking back on all of your work, 

what has it meant to you to be a civil rights lawyer? 

MD: Well, a great deal. And with some sadness of what I'm about to say, my time at 

the Fund was the most intense time that I've had, in relation to time since that time, to be in 

an interracial setting of colleagues. [03:04:14] No matter what the efforts have been, and I 

think there’ve been more efforts at the Senate and elsewhere or in academia back then. This 

was an opportunity in which my closest colleagues and mentors were people that I haven't 

had a chance to work with as much since that time. I know the question properly seeks to 



56 
 

probe, “What does it mean to affect these results in the world?” But there was another part 

of it as an experience. I value something that, just for one reason or another, hasn’t happened 

as much. But I also look at some of these experiences, and there is lasting satisfaction. 

I'll tell you one more story. I'm going to characterize this as the most satisfying 

experience that I had at the Fund. It all relates to one proceeding before a judge and one 

session in chambers before that judge. [03:06:01] The Fund in 1965, following the passage 

of the major Civil Rights Act of 1964, begins this process of looking for other ways of 

achieving progress. In the housing area, one way was through attention to urban planning. 

Another was through an effort at a creative use of the antitrust laws. Jack Greenberg, I think, 

had been interested in this as an intellectual and possible litigation matter early on. The Fund 

begins an effort, one of which is a Sherman [Act], federal antitrust suit against the Akron 

Board of Realtors, in which the Fund engaged, [likely pro bono], the assistance of a noted 

antitrust lawyer and a New York law firm and made a pitch to the Department of Justice to 

join. The Department of Justice does join and joins in the form of an amicus brief by 

Stephen Breyer, this was his one court case. He made a point of this in his Supreme Court 

[nomination] paperwork, this was his one court argument, arguing that the antitrust laws 

apply to restrictions in access to home markets, that had been a feature of Akron realty. 

[03:08:04] The Fund then brought a second case, which was brought by a realtor in 

Pittsburgh, Robert Lavelle, against the multi-list organization of greater Pittsburgh. For the 

first [year or so] of that case, the [Fund staff] lawyer was Sheila Jones, who I mentioned had 

helped to develop the approach to administrative complaints to the Department of Housing 

and Urban Development. Sheila was on the case, and in Pittsburgh, through the argument of 

[the defendant’s] motion to dismiss. [The complaint] was not dismissed, and [we] proceeded 



57 
 

to preparation for trial. I then inherited that case and had two experiences in relationship to 

it. One was with the another firm, [the law firm of] Weil, Gotshal & Manges, working with a 

young antitrust lawyer who had just come out of the Department of Justice, Carl Lobell. I 

became the beneficiary of a learning exercise in how to put together discovery demands, 

requirements, requests for documents, interrogatories, any form of information that might 

relate to the economic power of the multi-list organization, which would enable a realtor to 

have access to listings that were brought in by other realtors and therefore outside of the 

conventional area in which the original complaining minority realtor had access. [03:10:17] 

Carl really taught me a lot [and using his DOJ and private practice skills] made a great 

contribution to the decision of the multi-list organization to settle the case and grant 

membership to Robert Lavelle. I learned a lot in that process, [including] what lawyers in 

private practice can contribute to civil rights law. 

The personal experience that stays with me is, we work out the terms of a settlement. 

They're going to let Lavelle in. They're going to change their process for considering new 

members; in order to give people a chance to rebut any adverse information and they were 

going to improve their process. [Robert] Lavelle was satisfied but we needed [also] to 

satisfy the District Judge that this was a reasonable settlement. I assume by then we had 

gotten class action status. I don't remember that detail, but I assume so. [The parties, their 

lawyers, then met with the District Judge in chambers to review the facts which supported 

the settlement]. I made a presentation, and the judge approved the settlement. I received a 

letter from Mr. Lavelle a couple of days later. It was the warmest [of letters]. This had been 

a session in chambers. [03:12:05] It wasn't an open court with the public there, to the extent 

the public turned out, it was the judge, court personnel, the lawyers in the case, and Robert 



58 
 

Lavelle. It [the letter] was a “thank you” note. He wrote about how proud he was, hearing 

the presentation. A gentleman who had gone through a lot in his life. He’d been wronged. 

He'd been seriously wronged, He knew all the details of how he was wronged, but what he 

was hearing in court was an articulation of that. Someone rising before a judge, we may 

have been sitting in the chambers, and describing to someone else, a person with authority, 

[a judge], what he, Lavelle, knew all along, but had to live with, and that experience of 

[hearing] a client saying, “Yes, that's what it was like. And that's why it needs to change. 

And I deserve something, not in a selfish way, but I deserve a positive result. [03:14:04] And 

I can do good things with this result.” Because he then had an opportunity to make listings 

available throughout the community. 

I valued that. I guess it connects to the general thought, which we've done some 

sharing [today]. There’s a part of the legal experience that is global, broad, at high levels of 

principle. And there is a part of it which connects with people. The opportunity to connect 

with him in that circumstance is one that is treasured. 

SP: Do you want to talk because we've kept you here for a long time. 

MD: That's all right. 

SP: Do you want to talk a little bit about working for the Senate, being Senate Legal 

Counsel, just because I feel like we can't talk to you without mentioning this part of your 

career. 

MD: Sure. They’ve got rules or law about respecting attorney-client privilege and 

the like, so I won't intrude on any of that. The Office of Senate Legal Counsel was 

[established as] part of a major set of post-Watergate titles in [the Ethics in Government Act 

of 1978]. In that Act, Congress put together ethics matters, established [procedures for] 



59 
 

special [prosecutors which by a subsequent amendment] became independent counsel, and 

created an Office of Senate Legal Counsel, [among other titles]. [03:16:22] The Senate had 

been retaining private counsel and paying somewhat dearly for that over the course of a 

number of years in conflicts with the executive branch over the separation of powers. Those 

were matters in which the executive branch would say to the Congress, “A law is 

unconstitutional because it intrudes on executive power.” The Attorney General would 

represent the President's view of those things and not defend the law. Congress would retain 

outside counsel. It tired of that and also was looking for the development of continuity and 

representation came out of a person in [correction: by an office] in which there was learning 

about the history and authorities of the Congress. The House was reluctant to create a joint 

office with the Senate. So, Congress's legislation created one for the Senate. 

[While consideration was being given in the spring of 1979 to filling that office], I 

was finishing up at the Court of Appeals. I guess we didn't talk about it, but I spent two 

years, 1977-79, as Chief Staff Counsel at the U.S. Court of Appeals [for the D.C. Circuit]. 

[03:18:00] After coming down from teaching law and before the Senate, I learned that this 

[new Senate] office had been created and I wrote a letter to Senator Robert Byrd, who was 

the majority leader, expressing an interest in it. I met with Senator Byrd and was offered the 

job or his interest in my having the job. I also met with Senator Baker, who was the minority 

leader at the time, because the whole spirit of the office is that it's a nonpartisan office. 

Appointments have come out of the majority leader for the Counsel and the minority leader 

for the Deputy Counsel, but it's run as I had an opportunity to create it and as I believe it 

was intended, as a unitary office. So, it's not that we had majority space and minority space. 

The four lawyers were myself, the deputy, and two assistants [counsel with] a broad range of 



60 
 

responsibilities. One was defending the Senate, committees, and members when they were 

defendants in relationship to their official responsibilities. [A] second major responsibility is 

representing the Senate or committees of Senate in the civil enforcement of Senate 

subpoenas. A third major category was appearing in defense of the constitutionality of 

enactments that were not being defended by the Justice Department. [03:20:15]   

Then there were [responsibilities] that just developed. So very early on, [probably] 

connected with our representation of Senate committees in enforcing subpoenas, we were 

asked by the Senate to take the entire office, which was four lawyers and some assistants, 

and be the nucleus of the legal staff that assisted in the investigation of President Jimmy 

Carter's relationship to his brother, Billy, and the Department of Justice's interest and 

concern with Billy Carter's failure to register as a foreign agent for Libya.  A distinguished, 

retired Seventh Circuit Judge, Philip Tone, literally moved into our office to be the [lead 

counsel for the special committee established for the investigation], and we assisted him in 

the conduct of that investigation.  Although this has been a variable over time, [I long hoped 

that we had] helped to create a template of a nonpartisan investigation. [03:22:01] 

Obviously, there were Republicans and Democrats on the committee, the chair was 

Democrat Birch Bayh, Senator Thurmond was the Vice Chairman. But we worked for 

everyone. [We limited] private [one party] conversations on one matter or another. 

Everything was done for the entire committee. We worked through hearings and report in 

that manner. I can't say that [most] investigations have been done in that way since that time, 

but that was our effort. 

Very early on, we were [also] assigned cases that had, in fact, already been in 

progress for some time. The Senate had been paying for private counsel. One of those was 



61 
 

the case of Immigration and Naturalization Service v. Chadha. That case involved the 

constitutionality of a [two-part] provision of the Immigration and Nationality Act. [One part] 

empowered the Attorney General to take action to abate deportation proceedings against 

individuals who were here, not with legal authority, [such as having] overstayed [a visa, 

when the Attorney General determined that deportation would cause extreme hardship. The 

other part, which was the part whose constitutionality was before the Court, established a 

check on that authority by reserving] to the Congress the power to override through an 

action described as a legislative veto [by a resolutions to either both Houses or one House, 

[without being presented to the President for signing or presidential veto]. [03:24:06] [The 

legislative veto] was a procedure going back [in U.S. immigration law] to 1940 that had 

over time, and intensely in [the 1970s], become a favored mechanism for the Congress to 

delegate power but reserve controls over [implementation]. In the Chadha matter it was used 

by a House committee that was opposed to students overstaying visas no matter what the 

reason.  

The larger question was whether the mechanism could be used as a check on 

[presidential] war powers, unitary budget actions by a President, and controls over [agency] 

rulemaking authority. That was the Senate's concern. Our main interest was trying to 

persuade the Court to defer a broad ruling until one of those cases came up, one of those in 

which there would be considerable, current interest.  

Nonetheless, the immediate focus was this particular action in which Chadha, who 

had come from Kenya, of Indian heritage, was unable to stay in Kenya because he had not 

taken and did not want to take advantage of an early [but limited] window in which East 

Asians in Kenya could become Kenyan citizens. [03:26:21]  [He was essentially stateless], 



62 
 

unable to get to England because England didn't want an influx of immigrants, [he had 

come] to the United States to study, got his degree, [then stayed] beyond his visa. 

In an experience which [to this day] I cannot understand, somehow, I had not 

connected Chadha with a person I knew in Kenya [through friendships with other Peace 

Corps volunteers]. Walking into the Supreme Court, the day of the argument, walking in 

with his lawyer, Alan Morrison, I said to Alan, “Gee, I’d love to say hello to your client. I 

lived in Kenya for several years.” Alan says, okay, pointing to Jagdish. [We immediately 

recognized each other and spoke briefly while I was saying to myself], “Oh my God. I'm 

about to make an argument, which on a theoretical level could lead to his deportation.” And 

I don't know how I didn't connect this paper record with that person. 

I [proceeded to] make my argument, we all [made our arguments]. Chadha was now 

married to a U.S. citizen. [03:28:05] One of the things we were saying to the Court is don't 

decide big issues. All that Jagdish Chadha needed to do is to change his application to 

spouse of a U.S. citizen and he'll be okay. But he and his lawyers did not want to do that. It 

had some effect on the timing of his [future U.S.] citizenship, but it was still an approach 

which the Court often likes, we think most often likes, to avoid big issues and wait for the 

right day to do it.  

That sounds like presidential immunity as an issue. That's part of it. They make the 

argument. That afternoon. Jagdish comes over to my office with his wife, Terry. I guess we 

had enough of a conversation [at the Court] in which I said, “Come over and visit.” He 

brought champagne for our staff saying that we'd worked so hard on this matter. We spent 

some time together and he said he's always wanted to see the United States Congress in 

action. Could he do that? I said, “Come back in the morning. We'll go over to the Senate 



63 
 

gallery.” He comes over in the morning, and we went over to the Senate gallery. And in this 

absolutely rare moment [on the Senate floor], Senator Arlen Specter was giving a speech on 

school bussing and the unconstitutionality of something that the Congress was proposing to 

do. [03:30:06] His speech was about the 14th Amendment and great principles of American 

government. You hardly ever have a moment [like that]. Mostly you walk over and sit in the 

gallery to watch the Senate in action, and [it commonly does] nothing more than a quorum 

call, droning on [seemingly] for hours [with Senators intermittingly] talking about some 

unrelated things. Here [instead] was a speech about the Constitution and the most basic 

principles of the United States. Chadha said that's wonderful. And he was absolutely 

genuine about it.  

Then, time passes, we’re ready for a decision. And the Court decides that the case 

should be [reargued]. So, we have to do [the argument] all over again, which we did. There 

were some Justices who felt that the Court should not have reached the major issue but the 

majority of Justices, not only decided in Jagdish’s favor, but, in a way, which struck down 

[the legislative veto in a broad] array of laws. On reflection, not a bad result in the long term 

in terms of the structure of American government. [It’s sometimes okay to lose].  

That was my first experience arguing for the Senate in the Supreme Court. I'll only 

tell you about one other. I mentioned that my office was created in the same legislation that 

created the special prosecutor, then independent counsel, or special counsel system. It was 

inevitable that there would be a constitutional challenge to [court-appointed special 

prosecutors that would reach the Supreme Court] [03:31:58]   The case [that did involve] 

Ted Olson, a distinguished lawyer who was later a Solicitor General of the United States, 

but had gotten on the wrong side of a House committee [in a dispute over committee 



64 
 

subpoenas when he had been an Assistant Attorney General during the Reagan 

Administration.  That dispute led to the initiation of procedures for a court appointed] 

independent counsel. I argued on behalf of the Senate as amicus curiae [in support of the 

law’s constitutionality] because the Senate was interested, and at that time supportive of, 

that mechanism, which had grown out of Watergate. The Court upheld the statute [but within 

10 years] and much to the unhappiness of many, including on both sides of the aisle in the 

Senate, with the repeated use of that system [for court appointed special prosecutors] 

persuaded a clear majority in the Congress to allow that law to lapse in a sunset.  

One of the things I did after the Senate was to be the counsel for a bipartisan entity 

created by the American Enterprise Institute and The Brookings [Institution that was] 

chaired by Senators Mitchell and Dole and [whose members were] equally divided, 

Democrats and Republicans. Former Solicitor General Drew Days and John Roberts, who 

was then a former Deputy Solicitor General, [were members]. We recommended the 

termination of the [court-appointed] system. So, it was an experience of arguing [in court] 

for its constitutionality and taking part in its demise. [03:34:19]. [However, the bipartisan 

project recommended the adoption of Department of Justice regulations on the appointment 

by the Attorney General of special counsel with substantial safeguards of independence.] 

SP: You were Senate counsel for sixteen years? 

MD: Yes. 

SP: How do you think that your early years of LDF helped prepare you for that job? 

MD: Well, I like to think that one of the things I really loved about the job and 

litigating for the Senate is something, in a sort of different setting that I came to do at the 

Legal Defense Fund, which is understand how things came to be the way they are. We can 



65 
 

call that the history of the matter, history of an institution, history of a legal issue. In the 

Chadha case, in our briefing, [we] spent a lot of time in describing the challenges that 

Congress had in the 1930s in coming to a resolution of a problem of many Europeans being 

here in the United States [who] because [of] what was happening in Europe [had] 

overstayed their visas. [Describing how] Congress came to a solution, saying to the Court, 

“Don't see this as just an abstract issue. See this as having its impact on the ability to solve 

problems.” I think there's been a part of me that has tried to carry that over from all phases, 

knowing history and trying to do history at the Congress. There are all those wonderful 

resources there, the Library of Congress, the Senate historian, lots of good aides, and putting 

those stories together, [03:36:23] weaving them together. 

One  of the cases that we worked on, didn't make an [oral] argument before the 

Supreme Court but wrote an amicus brief [there] for the Senate, was a case in the latter part 

of the 1980s, Metro ]Broadcasting is] in the title of the case [Metro Broadcasting, Inc. v. 

Federal Communications Commission].  The case involved a challenge to, I'll call it 

affirmative action by the Federal Communications Commission in granting licenses to 

several broadcasters who said they were adversely affected by the favorable action given to 

minority broadcasters. [The disappointed broadcasters] challenged the constitutionality of 

[affirmative action]. The Department of Justice notified the Congress, as it's required to do 

under law, that it would not defend the constitutionality of actions that the Congress had 

taken to keep that system in place but would instead assert its unconstitutionality. [That 

notification gave] the Senate an opportunity to appear [in the Supreme Court] to defend [the 

Congress’s action]. [03:38:14] There was bipartisan interest in supporting the measures that 

the Congress had taken to keep the FCC's affirmative action program in place. I’m leaving 



66 
 

lots of detail out, but that’s the main line of it. Senators Inouye, a Democrat, and [Robert] 

Packwood, a Republican, had supported these steps by the FCC within a committee in 

which they were principals.  

That bipartisan interest became the basis for the Senate then directing me [as its 

Legal Counsel] to defend the constitutionality of what Congress had done to keep that 

[affirmative action] system in place. This connects with your question in that the 

Department of Justice was saying, among other things, “Where was the careful study by the 

Congress? What were the hearings that led the Congress to pass the enactments that it did?” 

And the fact was that the Congress's consideration of the problem of minority access to the 

airwaves was not one in which you could just look at one hearing, [imagining that the life of 

a law necessarily] begins with this hearing. [Imagining that always] you hold a hearing in 

this house and hearing in the other house, you then have debate on the floor [in each House] 

and then action in both Houses. [03:40:06] [In the FCC case], it had actually happened 

through the consideration of lots of measures, an appropriations matter in one year, another 

appropriations matter in another year, a substantive set of hearings in a third year. And then, 

Congress was persuaded to act. 

Sometimes everything is neatly packaged, but sometimes, perhaps even often, things 

are not uniquely packaged in which you look and see tied under one bow, all the 

consideration that’s gone into an enactment. It may have occurred over time. And so, our 

amicus brief was one that wove together [various legislative strands]. It was a pleasing 

experience when the Supreme Court upheld the legislation that had kept the [affirmative 

action] system in place, although it changed its mind about some of the general legal issues 

[in the case] some years later. But at the time [of the Metro Broadcasting case it] upheld it. 



67 
 

You could see in the Supreme Court's written opinion a great deal of the history that we 

were able to put together. I just offer that as something that I found continued, whether it 

was immigration in the 1930s or opportunities of minority broadcasters in the 1970s and 

[19]80s [the pleasure of weaving together histories]. The telling of stories is something that, 

for me, continued. [03:42:08] 

SP: There's so much more we could ask you. We've had to gloss over some things, 

but is there anything that you really would like to discuss that I haven't asked you today? 

MD: I think we have actually covered a fair amount, so I'm happy to [conclude]. 

SP: Well, thank you so, so much for talking with us. 

MD: Oh, you're most welcome. Now, of course, there is the story that's attributed to 

Justice Jackson about the three arguments in any one case. And he’d say, for him, and I 

guess, for others, he always had three arguments. One was the one he prepared. The second 

was the one he actually made, and the third was the one he thought of in the cab coming 

back from the Court. [laughs] So, I may think of another, but I think you've covered the 

ground. 

SP: Thanks so much. [03:43:19] 

[END OF INTERVIEW]