Michael Davidson Interview Transcript

    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: Wil 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 Bila Tserkva, Russia, which is 

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

life as Russian 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, my grandmother's, coming to the United States, 

together with my dad who came here as a five-year-old. And they settled in Hartford, 

Connecticut, where my dad grew up. And, I think first discovered his, not think, it definitely 



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was the place he first discovered his interest in theater. And I mention theater because 

theater has been an important part of our total family life. My grandfather was a fruit and 

vegetable person. He had a horse and wagon and plied his fare in neighborhoods. My older 

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

calling out the wares to bring people out of their homes to buy fruit and vegetables. My 

grandfather was a religious man. I think 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 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, 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. And 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, and just at the time that Brooklyn College, as a branch of 

the City University of New York was being opened in downtown Brooklyn. And he very 

much shaped that theater 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] And In Abraham’s Bosom had won the Pulitzer Prize 

several years before. And it was a play based on racial experiences in North Carolina. I think 

Paul Green was the playwright and then did something but he had to do it even more fully in 



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relationship to this production, because there weren't very many Black students in the 

university system and obviously it 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. 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, it's getting a little 

bit ahead because in the year after he came down to New York and began teaching at 

Brooklyn College. 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 while, they married. And that was my mom, Alice. Her dad, also, with his family, 

migrated from Russia, but from the part of Russia that's now Bielorrusia. And that became 

Belarus, near Minsk. And he was a tailor and in the United States, as a tailor, moved to the 

garment trade and it was an oppressor and long, hard days. My mom would describe his 

coming home and just being raw from the heat of the sweatshops in which he worked in. 

But he loved music and he loved gardening, and he loved 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. And I can assure you 



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that her musical abilities totally bypassed me. But my older brother 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 and included opera and in the course 

of his directions, here in D.C., he directed the opening of the Kennedy Center, the Bernstein 

Mass. And the other thing I think I’d feature about it is as a family, as a Jewish family, there 

was continuing exposure to forms of arts, themes in arts, subjects in arts that were very 

broad. [00:12:11] And 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 that I grew up. New Yorkers tend to refer to the Old 

Neighborhood, the place that long ago people lived. 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 and still commute. 

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. And 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 Alfieris lived next door, the Giovannis 

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, 



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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 is that in addition to conceptualizing this school, she was a person with deep faith too. 

She's one of the few Protestants I knew growing up, that was just the nature of a Catholic 

and Jewish 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 and 

including a very deep friendship and a first opportunity to visit another family in Bedford-

Stuyvesant. And I valued that very much. [00:16:01] And 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 elected to be the mayor 

of the city, student government was modeled after urban New York. 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. And in 

my junior year, the student body voted to confer that award on Thurgood Marshall. And just 

sort of tuck that away. And 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 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 



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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. And 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 

reside at that house. And 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] And I attended that 

and then applied for a residence scholarship to begin my studies at Cornell. And 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 sort of liked the democratic aura of Cornell. Now, Cornell is 

going through its issues with other schools now but it began, I think unique in the Ivy 

Leagues, as a school not based upon any particular religious affiliation. As Yale did in its 

early origins and Harvard did in its origins and had 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 



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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 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 and 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 had 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 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. And I ran 

a campaign. It was pretty much an individual campaign of studying, writing reports to the 

student government, to the faculty who ultimately passed on to the trustees. And within 

three years, it became a voluntary program. [00:24:06] The other main locus of activity is 

the student government Human Rights Committee and I, in my junior year, 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, I learned 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. And I have 



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some correspondence, which I am so glad my father kept a box of papers. This kid's papers. 

This kid's papers. And I was able to recreate some of the things I did, just by the things I 

brought home and he saved. But 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 that they were surprised by it. I'll tell you, one other thing I did in 

relationship to that 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 early 

1960. 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. And 

they included a student protest 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. And the student government 

took up the question of, should there be a campus protest at Cornell. [00:28:08] And they 

ended up vacillating about it. At first, it was trying to create a protest which was student 

government run. I think that the university had a reaction to that about liabilities, whatever it 

might be. And so, some separate organization was created, but they also had a meeting, and I 

happily came upon 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 



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modest legislation at the time, but had been stalled in a filibuster and 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. 

And 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 in a public facility. 

And the officials’ reaction was severe. It was not only charging students with trespass and so 

forth, and 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 

governor. And I was, just in reflection, very happy to have discovered that, we, the student 

government then and the committee that I was working on, were responsive to that 

circumstance and had joined in 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. In my 

senior year, the student government and then moving 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. And I was asked to and then 

submitted a document to student government of 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] And the piece that I wrote, 

members joined in and we made a presentation was, “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. And the mechanism of discrimination was the 

blackball system, allowing the vote of one person to reject someone who was seeking to 



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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, 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. And one day, at that session, sitting on the 

steps of a university building, this fellow comes over and says, “Are you with that group?” 

And 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, and I’m going to return to 

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

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

to law school? 

MD: You know, 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 



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high school graduation he gave me a book of Clarence Darrow’s speeches. And 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, and so I needed to do something else. Although a good 

deal of 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. 

And 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. And that further led to 

being able to go to that graduate school and that law school without calling upon my parents 

to support, as they of course supported to some degree, but I was pretty much able to finance 

it. [00:38:15] So, Clarence Darrow’s speeches, cost of college and 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] And it was a year that dealt 

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



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

And 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 

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. But 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, Chuck Jones. And Chuck, a couple of years older, was from Chicago 

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

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

was nurtured and developed, but then, I came back east and Chuck came to New York to 

work for the NAACP Legal Defense Fund. So put that data point over there. So, I graduated 

from, unless I should add something about law school. 

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

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. And 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 



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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,” and the 

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

of Kenya. So, if you picture Kenya in 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. And that had an impact on the tribes of 

Kenya and in particular the Kikuyu tribe, whose land opportunities were severely 

constricted by European settlement. So, independence, the independence struggle in Kenya, 

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 and into the 1960s was about land 

and political freedom, those two together. As part of the independence bargain in Kenya and 

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

number of European farms in the Highlands and the resettlement with Kenyan African 

farmers. And generally called land settlement, land settlement involved acquiring these 

European farms, putting together groups of them, settling Kenyan African farmers on it, 

providing assistance, providing an administrative structure, which included veterinarian, 

agricultural, and health and co-operative assistance. And 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 and Peace Corps allowed for some 



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bridge. It was an unusual Peace Corps program because they actually, for a period of time, 

sort of exercised the responsibilities of government officials in administering these 

settlement schemes. [00:48:28] And all of that was quite attractive. At the same time, I was 

applying for 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, get to Kenya at the very end of 1964, and through much of 1966 is 

when I'm in Kenya. In 1960, so Thurgood Marshall was asked by Tom Mboya. Tom Mboya, 

Kenyan, a brilliant, charismatic, young, labor organizer, who, while Kenyatta was still under 

detention by British authorities, had 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 the independence movement, and 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 and be a part of, an important part of the generation that would then 

have responsibilities when independence came, as it would inevitably come. Mboya had 

made a connection to Marshall who, supporting together with other important African-

Americans in the United States, Jackie Robinson among them, to interest the United States 

in supporting that program of education of the next generation of Kenyan officials. Mboya 

and together, the others asked Marshall to join them at a conference, the first of several 

conferences, at what they called the Lancaster House in Great Britain, which moved the 

country to independence. And it was a conference in which white settlers and government 

officials and Black Africans and Asians would come together with British officials, and try 



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to come to some agreement about the future. [00:52:13] And Marshall was brought on 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?” And, I don't know 

whether they had any particular feelings about the kind of work that Marshall had done, but, 

“Who is this American?” And Marshall tells this story that, again, I promise I will connect 

all this. He tells the story 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, and 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 and at some setting in which they weren't allowed to speak 

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

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

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

Marshall says, because he can't go into the meeting. He says, “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,” which is 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 and 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 

Constitution of the free Kenya to come. And 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 



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

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

was effectuated, it was done under a set of rules, and there was mention in keeping for 

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] And 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 just before New Year's in [19]64. 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 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. 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 

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, 



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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 are endemic in the tropics and 

can be devastating. And 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. And 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. And eventually it happened, but it had to happen on 

its own path and with people making that decision. And I think one of the things I carried 

forward in working at the Fund were experiences in which representing community groups 

and 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 to a voice, but the important thing is their voice, and how they work 

through issues and how you can be of assistance to it. And I've developed that thought, and 

I've treasured it. I think it's right. 



20 
 

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: Yeah, so 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: Okay. 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. So, 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. Somebody who I met on the steps of 

the University of Illinois, Champaign-Urbana, and then we shared an apartment, and I think 

I just called to say hi. [01:04:16] And went up, had lunch with Chuck and with some others. 

And 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 of the Rights of Indigents. The attempted short of that would been NORI, 

and this is 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 then soon to be on the Supreme Court. And the Fund knew that things were 

changing, and 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 southern oriented. [01:06:11] But broaden the reach to be universal within 

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

subject, consumer rights laws and so forth or approaches to issues. There's always been a 



21 
 

housing component, but 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, in particular, Office 

of Economic Opportunity legal assistance programs, which either have been more historical 

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

group of potential clients, potential lawyers, geography, and subjects. And 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 grant and so the Fund was just at the point of 

expanding to some degree. [01:08:08] Well, I think a significant degree, so that I was aware 

I mean, we obviously talked about that. But then and this is at the purest level of conjecture, 

which I thought about subsequently. I said Kenya, of course, and the very issues that 

Marshall was concerned about, which was the transfer of land from Europeans to the 

Kenyan Africans. And, he was there before I was, but it was a related experience. I also, and 

this is within just a couple of years of my starting there, the Fund hired three other Peace 

Corps volunteers. Elaine Jones, who went on to become a Director-Counsel, I think prior to 

her going to law school, was a Peace Corps volunteer in Turkey, teaching, I think. Drew 

Days had started to practice law. And then just a little bit after I started, went to Honduras 

with Ann. So Drew and Ann Days, and they were both volunteers. [01:10:01] Drew worked 

on agricultural cooperatives in Honduras. I think they were related to tomato canning, but 

I'm not sure. But they were agricultural cooperatives. They were based in Comayagua, a 

historic capital, early capital of Honduras. And Ann did, I think, very interesting work, in 

town and including writing broadcast scripts for young people. They had that experience and 



22 
 

then Paul Johnston was a volunteer in Venezuela, and he had finished law school. And his 

program in western Venezuela involved assistance to municipalities and brought together 

Peace Corps volunteers who were architects and city planners. So, there were four of us, and 

so I got to think that maybe Jack and others at the Fund, kind of 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. And, 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: I believe now, the very first brief that I worked on. The story that I think is 

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

Funding is expanding, but still. So, lots of cases for the number of people, being sat down 

and saying, “See that pile over there? We need to have a reply brief in, whatever, three 

weeks,” and I opened a law book, whatever that might be. And obviously there's some 

guidance in the process. And I've read others tell that same story. Pretty early on, began to 

develop this subject matter 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 and a very talented lawyer, Sheila Rush Jones, who happened to be, at least at that 



23 
 

point, Chuck's wife, had been developing that for a year or so before. [01:14:24] So, I think 

within six months, in addition to school litigation, that became the field. But I won’t 

describe it 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 

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

he was the senior on the case, was the long pending school desegregation case in Mobile, 

Alabama. And 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. And it was a 

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

school and they needed to be melded, but they didn't involve lots of decisions. [01:16:09] 

The timing of them, but not construction and temporary classrooms and so forth. And we 

went down 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 going to be. And 

the school litigation there would involve hearings in the spring and summer and appeals of 

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, so that first long stretch that I had down there, the United States Department of 

Justice intervened in the lawsuit. So, this is approaching the end of the Johnson 

administration. Great deal of activity by the Department of Justice and the Department of 

Justice intervened. And 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,” and I heard the 



24 
 

word “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, “That's wonderful.” I just pictured 

legions of them and this is not 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, is to do discovery at a level that was just difficult and challenging for 

us, which was, they sent in FBI agents to photocopy every school board record that one 

could imagine. And it was so detailed that there were photographs of ashtrays. The agents 

were told to photograph everything. They photographed everything. And what that meant 

was we had this enormous amount of material and was not only available to Justice 

Department lawyers but to us, was we 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. But it was a result that was obtained by lots of things together. [01:20:10] 

How students were 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 in conjunction with, very much in conjunction with the Department of 

Justice, argued and 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 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 



25 
 

about the miscellaneous things. It became, that set of hearings was my first, the first putting 

on witnesses in court and one of the things we needed to do was to sort of map out where 

people live by race. You could then overlay that with transportation and construction and the 

like. [01:22:12] And 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 say, “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, and to ultimately say, “Okay, you go ahead and prove the demographics.” So, 

from the importance of discovery to examining letter carriers, that was very important. And 

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

is the right way, but pleasantness and practical assistance of the clerk'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. And in the Mobile clerk's office, everything was of assistance. And I really valued 

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

Vernon Crawford. Vernon was our contact with the community and he was our host. And we 



26 
 

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

experience which is sort of most connected to the community, and that’s through the 

corroborating 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. And 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. I made a commitment to help out at a Peace Corps training site that they 

were going to work at upon coming back to the United States, at Tuskegee. So, our training 

was up in Milwaukee. Peace Corps is 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, it had a rural location, in which there were tents 

or training opportunities, that I would come back and teach about cooperatives for a couple 

of weeks. And so, in December 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. And one of which was to take some weeks and give 

instructions in assisting cooperatives and so lived in this rather rural setting in Tuskegee 

with some amount of 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 



27 
 

policeman not to do that ever again. And so, I was aware of the setting. I probably didn't 

need to be aware of it in that way, but those are a couple of introductory weeks. 

SP: And, let's talk about the South Carolina school cases. So, this is the Greenville 

and Lamar cases. 

MD: Yeah. Most of my work concerned housing and so forth. But let me tell you 

about that. And there was 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 the South Carolina cases. Sometime in 1970, [19]71, or so, some colleague at 

the Fund 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 and 

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

particular matters and to address sort 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. And so, my name appears on lots of dockets, but work 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. And this should have been at the very 

beginning of 1970. I can fine tune these dates, in 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 have been used by the school system. 

[01:32:12] And then Darlington, which is a rural setting. And we had an argument before the 

Fourth Circuit in which, Judge Haynsworth, Clement Haynsworth was a member and, I 



28 
 

guess, the presiding judge on the panel, and the thrust of the presentation, as I can recall it, 

was to bring those systems, in the meantime there were other hearings regarding many other 

districts in the state, into a time requirement. Right now, even before the end of the school 

year and there was a certain near 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 

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

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

First 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 of what I'm saying. But the 

NAACP, not the Legal Defense Fund, but the NAACP was just significant in having him 

rejected, and he was as warm as could be. And 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 is 

responsive. It shall be done. And there are 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. And 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 



29 
 

terrible events of shouting at kids to the actual shaking of busses, of breaking of 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 involvement, and a worker in Jean Fairfax's office, Jean did community relations, 

sort of 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 would be follow-up. I didn't take part in any 

follow-up litigation. 

SP: Did you ever feel personally threatened and frightened when 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. 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 not be alright. 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] 



30 
 

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 

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

course of some time would displace enormous amounts and numbers of people. [01:42:03] 

With plans and projections to build over 150 acres, which would mean 150 acres of 

displacement, a facility which by comparison to other medical schools and centers and 

related hospitals would have been far less and were far lesser around the country. And 

nonetheless, the medical school and the city of Newark were plowing straight ahead. There's 

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. The 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 was 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 



31 
 

o’clock 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. And Junius had, in the course of his own 

development, political and social development, social in the broad sense, connected with the 

Students for Democratic Society, Tom Hayden, and is 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. And the 

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

Defense Fund, was a fundraiser with significant community connections in Newark and 

elsewhere. And as articulate and informed as one could imagine, and close to Jack 

Greenberg, is in contact with the Fund and says, “Here's something happening that you 

ought to be involved with,” and so forth. And I don't think anything matures from that, well, 

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 I think 

people came to prefer calling it, occur and contacts with the Fund accelerate. And by 

September, the paper trail is clear. I had been involved and became involved with it. 

[01:48:04] And 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. Now, what would that remedy be? 

And here I think the point to me, upon reflection about the development of the Fund is this, 

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



32 
 

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

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

communities. And 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 sort of a manageable size community with an urban renewal problem, in which the 

urban renewal plan, as plans around the country, simply fail to implement, be faithful to 

obligations to provide alternative housing and alternative future for people affected by urban 

renewal. And their methodology included developing an administrative approach to the 

responsible agencies of the federal government and significantly, the Department of 

Housing and Urban Development. [01:50:08] But when highways are involved, the Federal 

Highway Administration, the Department of Highways, in which 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 laws of administrative 

agencies, what would be expected as a foundation for a claim 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. So, 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, the highway, 

urban renewal, displacement would be on the ability of people in that community to actually 

find housing that complied with city code requirements that may have provided alternative 

opportunities to 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 



33 
 

development. And so, the Fund brought on and formed a very significant relationship with 

an urban planner whose name is Yale Rabin. And Yale would do analyses and teach us how 

to do analyses of the availability or the non-availability of housing to work through 

demographic information, to go 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. One of the places, 

so to weave two stories together. All these stories get woven together. In the fall of 1967, the 

African-American community around Meharry College, Medical College, Fisk and then 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 Justice, to run a part of Interstate I-40. [01:54:20] So, the I being the 

Interstate 40 which runs across Tennessee, plowing through north Nashville and having a 

significant impact on those educational institutions, a 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 in the works and the community retained Avon Williams to represent it. And 

Avon was a principal cooperating attorney, a giant among cooperating attorneys, brought the 

Fund in. I'm pretty sure I didn't go out to trial court. I’m again now just some months into 

my time at the Fund, but 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 went to the Sixth 

Circuit Court of Appeals, the US Court of Appeals for the Sixth Circuit, returned down there 

and then filed a petition for writ of certiorari in the Supreme Court. And so all this is 

happening while Newark is happening. [01:55:57] That experience, I think, was an 

absolutely foundational experience that I had in the development as my personal 



34 
 

development as a Legal Defense Fund lawyer as the lowest name on the list. As I recall it, I 

had the responsibility to write the draft of that part of the petition which told the story. And 

we at that time had a trial and a preliminary injunction, expert testimony, expert by Avon, 

cross examination. So, there was a considerable record to put together, 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 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. So, the other aspect of that briefing experience, which 

I think is one that's not unique to me, but I think part of the wonder of the experience that 

then young lawyers had at the Legal Defense Fund is that, so part of the effort is to tell the 

story. [01:58:05] And then a big part of the effort is to move from there to several larger 

themes that bring along and one hopes brings along, at least at the beginning, four Justices 

grant of 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. Something I remember from Nashville, Jack just working 

over. And the other thing was had this ability and experience of bringing in others, and in 

this case, it was Charlie Black, Professor Charles Black at Yale, to also conceptualize in a 



35 
 

large way what this case was all about. [01:59:58] And at the heart of this case was, 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's 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, has this considerable impact, and can't be explained. And what Charlie 

Black and Jack and Jim was not only cleaning up my own prose on the facts, but the three of 

them together address the issue, oh, yeah all that's happening, but 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 and what needs to be done is. Well, it's what's done and then they put together the 

history of Legal Defense Fund litigation, which among other things, dealt with Chinese 

launderers in San Francisco, equal options, 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, that's enough. 

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

certiorari. Some adjustments on the highway occur, but that issue remains and becomes a 

very important part of other cases and a very important part of my own experience in 

litigation. How do you go beyond an effort not to be fruitful, to find the secret memo, to 

look at what is actually happening with expertise, planning officials, and detailed 

examination of government records to make the case. It couldn't have been for a good 

reason. They would have given the good reason or the good evidence. It was because of the 

malign intent. 



36 
 

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 

and 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 on 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 didn't need 150 or more acres. And 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 is developing the 

facts of Newark really doesn't have the alternative housing when you look at the city. And 

the Yale planner is an architect that, yes, states you can do this, but you don't need that to do 

it. And 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 the size issues, both of 

which were prominent, to then ask a broader range of questions. And for these, we ended up 



37 
 

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 and who's going to 

work there?” [02:08:04] And that's one that Gus Heningburg had a strong interest in, 

working out relationships and requirements regarding apprenticeships and opportunities and 

construction trade 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 this governmental systems, federal, state, 

and local, was interested in those issues. And 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 generally for 

community development. And then there were the entities on the ground level, the actual 

medical school and Newark Housing Authority. And 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 

addressed to the federal entities involved and our thinking about that as I don't want to leave 

the impression that we thought through everything 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 that 

there was a likelihood that, and Jack was rather explicit in telegrams and other 

communications, or we would need to take some action, not necessarily in a threatening 



38 
 

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 there not being adversaries, but being allies in 

this process. And the important ally, absolutely central ally had to then be the governor. So, 

it all began to come together after our administrative complaint is 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.” And 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 Duncan, 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. And 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 size and housing units were provided. But there 

were continuing obligations in terms of providing medical services to the Newark 

community. And there are doctors and others who turn to these agreements as being a 

charter. Long time. [02:14:09] The discussions occurred at night. This is going back to early 

1968. They were long. At first, I think 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, and there 

was a recognition of the negotiating team. And there is this, I think quite remarkable, set of 

transcripts, which I'm not sure have ever been worked through in the detail that they merit. 



39 
 

But, 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. And it was in 

the drafting part that I probably, this is a personal matter, 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 the particulars of the solution. And I very much appreciate 

the welcomeness 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 down to 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 develop a relationship in which they were 

comfortable, the state was, and I was comfortable and 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? 

MD: That was in Charleston. I'm going to say of all the experiences I had, and there 

are some that work out well in terms of an outcome, a good outcome in court, Newark, for 

example. That one was disappointing. Well, just as a little bit of background. So, there's an 

area of Charleston, state capital, which is called the Triangle, and it had a rich history, it was 

by the 1960s, 1970s, a worn-down part of Charleston. [02:18:15] I don't think there was 

much disagreement that it needed attention and 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. And 

we set out to be as modest as possible in how we articulated our legal theory and what our 



40 
 

objectives were. So, this was not an effort like Nashville to say, “Stop building that highway, 

move it over there. You know, 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 are living there, who were going through enormous stress and 

some of it caused by dislocation, others by other urban renewal or other changes. And 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] And you lived with that. But Judge Fields, I'll never forget there was a 

monologue of him going on and saying, “This is Alice in Wonderland.” This is the judge 

speaking. “The federal highway, federal funds. The state is receiving federal funds. There 

was a legal services project that was immediately representing the Triangle Improvement 

Committee, and it was receiving federal funds. This is all Alice in Wonderland.” He just 

didn't like to be there and didn't like the scene in front of him. And normally when the judge 

says uncomfortable things, the better thing is just to let it go. But I do remember getting up 

and saying, “I'm here for 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, but I think it was the only time that I ever 

got up and went to say something, which was, “Why are you saying what you're saying?” 

What came out positively about that case was after we lost in the district court and lost 

without an opinion, just precuring a one-liner from a panel of the Fourth Circuit. [02:22:01] 

We sought rehearing and two judges of the Fourth 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. And then the Supreme Court granted certiorari. 



41 
 

It 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. And so, I wasn't in the States 

when the full case on the merits is briefed and then argued by Jack. And this unusual thing, 

this infrequent thing happened. Although the Supreme Court had granted certiorari, 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 people want to hear a case on the merits, they'll hear the case on the merits 

and write a decision even if no fifth Justices move, 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. And I think 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 those people who live 

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, and 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. And there are legal experiences along the way that do convey that good things can 

happen. And so, I think the negotiations in Newark were an example of that. [02:26:00] And 



42 
 

to a great extent, we had a related experience in Selma, Alabama, in which, again, several 

entities were involved, and of course, Selma itself. But 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, which was actually 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 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 

partialed out, but effects come together, is finding an expression 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 referring to it in times that followed as a template. And I did look at 

some online newspaper searches in terms of Selma. And although I couldn't give you the 

details, the Accord there would be referenced from time to time, as a template for resolving 

an issue. But in all cases, the government would gain something, community would gain 

something, and there would be an articulation of it, even if there was not a so ordered part of 

it. Although there may have been a so ordered aspect of an urban renewal case brought in 

the Selma area, but that's for other records to determine. The Lackawanna— 

SP: And this is Kennedy Parks Home Association? 



43 
 

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] So, Lackawanna is a city 

adjoining Buffalo, New York, and this matter that I'll describe is the late 1960s, early 1970s. 

The city of 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 is in the first 

ward of Lackawanna. Picturing wards moving from the west of Lake Erie inland. The 

second ward, the third ward, and the first ward was where Bethlehem Steel, the plant, was 

located. And at the time and years after, one could see the 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 then two wonderful lawyers. 

[02:32:11] One named Charles Desmond, who was, for a period of years, the Chief Judge of 

the New York Court of Appeals in the New York State, what we think of as a state supreme 

court was the New York Court of Appeals and the state supreme court was a trial court. 

Charles Desmond, the Chief Judge of the Court of Appeals and the lawyer who was full-

time for the diocese, Kevin Kennedy, together with the bishop, organized a sale, initially 

promise of the sale and then the sale, to a group in Lackawanna, which is an old 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, 

assisting them in forming a new entity called Kennedy Parks Homes Association to which 

the diocese would convey some vacant diocese land in the third ward. So, the whitest of the 



44 
 

wards. To enable the newly formed entity, the Kennedy Parks, to build federally subsidized 

housing that would be available to its members and at affordable costs. [02:34:05] And 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 development.” And 

one of the things I marvel at is that Charlie Desmond, early on, the state has considerable 

reputation, on saying “if you do that, that would be unconstitutional.” And that sort of gave 

us a lot of confidence when the contact was made by the head of the NAACP in the area, 

Will Gibson, attorney, who asked the Fund to come in and represent the plaintiff 

organizations, Kennedy Parks and the individuals involved. And before a terrific federal 

judge, by the name of John Curtin, who was absolutely dedicated to giving us all, and he 

gave the city, an opportunity to build a record. We want anything from it. You want to win in 

a district judge’s chamber or court. [02:36:02] But you certainly want the opportunity to 

build that record. We had a long trial and 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 the intervention of the Department of Justice. And 

I'm going to connect this to the Clark family. I promised to connect, I’ll connect it to the 

Clark family. They had a long trial. And 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. And he granted relief, and we then had to defend 

against an appeal that the city of Lackawanna filed in the Second Circuit. This was my last 

argument before going off on our extended honeymoon. And it was a wonderful argument 

and in part was wonderful by walking into the courtroom and seeing sitting in the middle of 



45 
 

the three-judge panel retired Justice Tom Clark. So, and I'm absolutely sure the fact that his 

son Ramsey had authorized the Department of Justice, had nothing to do. [02:38:06] But 

what had something to do was you go back in history with Tom Clark's relationship with 

Thurgood Marshall was an important relationship. Marshall would call upon the Department 

of Justice to intervene, to take positions, and they clearly had a connection that enabled them 

to see things. Marshall's not at the Legal Defense Fund at the time. This is all historical. One 

example of Clark and Marshall was a brief that Clark filed with his Solicitor General in the 

restrictive covenant case, Shelley v. Kraemer. So, this is 1948. And Truman is beginning to 

take some steps in a good direction. He's about to, if he hadn't already, issued the orders to 

desegregate the armed services. But these are all initial steps. Clark with his Solicitor 

General came in on the side of the Legal Defense Fund and its allies in restrictive covenant 

cases. They wrote this sort of 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 Clark wrote a great decision for us in the Lackawanna case. 

A reason why it's part of my experience that I just 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, sort of 

carried over from Robert Weaver's Secretary shift to George Romney as Secretary. And 

Nixon very much wanted to curtail his own agency from making requirements for fair 

housing opportunities available in suburban areas and so forth. Nixon was persuaded to say, 

“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.” And his specific 



46 
 

example was Lackawanna. And so when all that became clear and I think some of this took 

a little while to make public, but anyway, it was made public. [02:42:08] The Lackawanna 

case, in fact, had that importance and say, well, at least there you lose some and then some 

have continuing viability, 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: So, you left LDF eventually. And you went to teach law at the State University 

of New York in Buffalo. And 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, 

which I may never have disclosed to you, I don't know, one interlude between LDF and 

teaching is that for a year plus some time, I headed a small office in New York City 

government to bring legal actions to enforce the city's housing code. 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] And I was attracted to that because of one thing, and at some point we are going 

to 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 in the house or vermin in the house and needed 

municipal assistance to have that remedied, 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.” And sometimes that would 

arise and I'll tell you about one at the Legal Defense Fund. But often the Legal Defense 



47 
 

Fund’s cases are a bit more global. 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 office into being and I think 

the best thing that I did was to say to the lawyers who got into this, who are great group of 

lawyers, “We're not going to do this just on the basis of paper, getting something from 

housing inspectors and going off to courts,” and 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 wound up 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, his name is Herman Schwartz, 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 Law School? They're looking for someone in their clinical 

program.” And then the bus goes on. And 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, and there 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] And there was no system of compensation at the time or one that was 

helpful in any significant way. And 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 



48 
 

this seminar and each will take a case. Do you have cases that could be assigned?” Calls in 

the clerk, describes the interest. Clerk brings in a ladder, climbs up, reaches on the top of a 

bookcase, and starts taking cases down. And literally dust is flying off them. These are 

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. And they did some 

absolutely remarkable things. What I call the principle involved was that it makes all the 

difference to have a lawyer, and these are third-year or some second-year law students, who 

is dedicated to that case. [02:50:20] They’re not trying, obviously, these are students who 

work on other courses, but in terms of cases, the one they feel an obligation for, this is it. 

And it was the intensity and thoroughness and just like I described how I asked these 

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, you can’t add something to the 

record on the habeas proceeding. It's going to be based upon the existing record. You need to 

go out 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 

you'll give that person the chance to describe his experience. And you'll be the better lawyer 

for that.” And we lost some but we also won some, and people who deserved to either get a 

new trial or to be released. There were other aspects of it which included the first argument I 

made in the Supreme Court, Nyquist v. Mauclet, which I did with some help from the 

students there and also with my wife, Karen, who did some research on it. [02:52:06] 

SP: And 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? 



49 
 

MD: Yes it was. And I benefited from being good friends of two pioneers in that 

effort, both of whom were 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. And, did I ever send it to you? But it 

was one of those things if it hadn't been written down then, I think I would not be 

remembering now. But 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. So, this is going to begin with, how did I have my 

first conversation with Jean-Marie Mauclet? He was a graduate student at the University of 

State of New York in Buffalo, in the arts. And Jean-Marie was painting our house in Buffalo. 

We bought this wonderful sprawling house, part of which was built in 1840, and other parts 

at other decades after. And Jean-Marie was married to a lawyer for the Archdiocese of 

Buffalo Kevin Kennedy, and Jean-Marie, I guess we hired Jean-Marie connected with the 

Kennedy family. Jean-Marie's painting our house, and he’s on the ladder up on the second 

floor. I'm working in a room on the second floor as 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, he was eligible to apply for citizenship, but he wasn't ready to give up his French 

citizenship, ultimately became a U.S. citizen and lived his full life here in the United States. 



50 
 

But he wasn't ready to do that. [02:56:04] And so, we put together a case, essentially 

involving discrimination against [permanent residents], which ended up before Judge 

Curtin, who had the Lackawanna case. And it was a case involving the constitutionality of a 

New York state law. And 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. And the two cases got put together in a three-judge 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]. And then the court went through a period of 

time in which it was very hard to get relief. It worked out 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 conversations, ‘oh well, 

that’s too big, too complicated for me,’ whatever. Something might be there.” [02:58:00] So, 

from painting a house, being on a ladder, and knocking on a window. and I think that case, 

which we argued in 1977, was very helpful in my getting the job of Senate Legal Counsel 

because I think it was very fresh from having had a very good experience in the Supreme 

Court. The thing I love most about that case, though, is 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 years, had an oral history at 

Brooklyn College because he had a magnificent 40 year career there, in which at the end of 

the oral history, after having gone through the history of the college, 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 plea the case before the Supreme Court.” 



51 
 

And I so love the language, plead. It was a kind of literary thing. Most people would say 

argue a case and here was an opportunity, and he didn't live too much longer, to hear me 

plead the case. [03:00:08] So, I love the legal issues and all that, but I love 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. And I have treated it in each 

case as a conversation in which I had information to provide to the courts and in the several 

cases I've had, had 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 

to read, they know the cases, but they don't know is sort of how this all happened. And I 

mean, there are aspects of the case in which the final decision had no relationship to, but I 

wanted to make. Jean-Marie, by the time all this arose, was married to an American, had a 

citizen child. He had commitments to the country and the country had promised in return to 

him, even if he wasn't ready to make a citizenship requirement and determination. And 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 relationship 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 went down to South Carolina to open an art gallery and 

a restaurant. 



52 
 

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. So, I know the question properly seeks 

to 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 a biting 

satisfaction. So, I'll tell you one more story. And I'm going to characterize this as the most 

satisfying experience that I had. And it all relates to one proceeding before a judge and one 

session in chambers before that judge. [03:06:01] The Fund in 1965, so following the 

passage of the major Civil Rights Act of 1964, begins this process of looking for other ways 

of achieving progress. And in the housing area, one way is through attention to urban 

planning. But 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 federal antitrust suit against 

the Akron Board of Realtors, in which the Fund engages the assistance of noted antitrust 

lawyer and a New York law firm and makes a pitch to the Department of Justice to join. The 



53 
 

Department of Justice does join and joins in the form of an amicus brief by Stephen Breyer, 

this is his one court case. And he makes a point of this in his Supreme Court paperwork, this 

is his one 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. And the first part of that case, the lawyer for the Fund in 

the Fund office, was Sheila Jones, who I mentioned helped developed the approach to 

administrative complaints to the Department of Housing and Urban Development. And 

Sheila was with the case, and in Pittsburgh, through the argument of some motion to 

dismiss, the case was not dismissed, and proceeded to prepare for trial. And I then inherited 

that case, and had two experiences in relationship to it. One was with another firm, 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 to. [03:10:17] And Carl really taught me a lot. And I think probably made 

a great contribution to the decision of the multi-list organization to settle the case and grant 

membership to Robert Lavelle. And I learned a lot in that process, and I learned what 

lawyers in private practice can contribute to civil rights law. The personal experience that 

then 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 



54 
 

a chance to rebut any adverse information and they were going to improve their process. 

And Lavelle was satisafied but we needed 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. Make the presentation, and the judge approves the settlement, 

and I receive a letter from Mr. Lavelle a couple of days later. And it was the warmest letter. 

So this was 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 Lavelle. It was a thank you note, and he spoke about sort of how proud he was, 

hearing the presentation and what this was essentially a communication about was, this is a 

gentleman who had gone through a lot in his life, and he had been wronged. He'd been 

seriously wronged, and 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 someone or sitting. I 

don't know if we were, we may have been sitting in the chambers. Someone describing to 

someone else, a person with authority, what he, Mr. Lavelle, knew all along, but had to live 

with, and that experience of having a client saying, “Yes, that's what it is 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 value that, and, I 

guess it connects to the general thought, which we've done some sharing with is, part of the 

legal experience, which is global, broad, at high levels of principle. And the part of it which 

connects with people. And that opportunity to connect with him in that circumstance, is one 

that gets treasured. 

SP: Do you want to talk, because we've kept you here for a long time. 



55 
 

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 privileges and 

the like so I won't intrude on any of that. The Office of Senate Legal Counsel was part of a 

major set of post-Watergate titles in which the Congress put together ethics matters, 

established or was the special prosecutor became independent counsel or special counsel 

provisions and created an Office of Senate Legal Counsel. [03:16:22] The Senate had been 

retaining private counsel and paying somewhat dearly for it over the course of a number of 

years in sort of conflicts with the executive branch over the separation of powers, 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. The Congress would retain outside counsel, it tired of 

that, but also was looking for the development of some continuity and representation, and 

representation came out of a person in an office in which there was a good deal of education 

and learning about the history and authorities of the Congress. The House was reluctant to 

create a joint office with the Senate. And so, the Congress's legislation was to create one for 

the Senate and when I was finishing up at the Court of Appeals, and I guess we didn't talk 

about it, but I spent a couple of years as Chief Staff Counsel at the Court of Appeals. 

[03:18:00] After coming down from teaching law and before the Senate, I learned that this 

office had been created. And, I just wrote a letter to Senator Robert Byrd, who was the 

majority leader, expressing an interest in it and met with Senator Byrd and was offered the 



56 
 

job or his interest in my having the job. I also met with Senator Baker, who was then the 

minority leader at the time, because the whole spirit of the office is that it's a nonpartisan 

office. Appointments come out of the majority leader for the council and the minority leader 

for the deputy counsel, but it's run as, I had an opportunity to create it as I believe it was 

intended, as a unitary office. So, it's not that we had majority space and minority space, but 

the four lawyers were myself, the deputy, and two assistant councils. With a broad range of 

responsibilities, one defending the Senate, committees, its members, when they were 

defendants in relationship to their official responsibilities. Second major responsibility is 

representing the Senate or committees of Senate in the civil enforcement of Senate 

subpoenas, and the third major category was appearing in the defense of the constitutionality 

of enactments that were not being defended by the Department of Justice. [03:20:15] And 

then there were some things that just developed. So very early on and I guess somehow 

connected with our representation of Senate committees and 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 worked through the investigation, assisted in the 

investigation of President Jimmy Carter's relationship to his brother, Billy, and the 

Department of Justice's interest and concern was Billy Carter's failure to register as a foreign 

agent for Libya. And a quite distinguished, retired, Seventh Circuit Justice Philip Tone came 

in and literally came into our office to be the counsel, and we assisted him in the conduct of 

that investigation. And I hope, this is a variable over time, really helped to create the 

template of a nonpartisan investigation. [03:22:01] Obviously, there were Republicans and 

Democrats on the committee, the chair was Democrat Paul Sarbanes, and Senator Thurmond 

was the Vice Chairman. But we work for everyone. Didn't have private conversations on one 



57 
 

matter or another. Everything was done for the entire committee. And we worked through 

hearings and report in that manner. I can't say that all investigations have been done in that 

way since that time. But that was our effort. Very early on, we were assigned cases that had, 

in fact, already been in progress for some time. The Senate was paying for private counsel 

and one of those was the case of Immigration and Naturalization Service v. Chadha. And 

that case involved the constitutionality of a provision of the Immigration and Nationality Act 

that empowered the Attorney General of the United States to take action to abate deportation 

proceedings against individuals who were here, not with legal authority, and overstayed 

visas and the like, but sought to reserve to the Congress the power to check on the use of 

that power through an action described as a legislative veto of either both houses or one 

house. [03:24:06] And this was an act going back to 1940 that had over time and then 

intensely in recent years, become a favored mechanism for the Congress to delegate power 

but to reserve controls over. And the Senate's interest was not in the deportation that was 

involved of Jagdish Chadha which had simply been an effort of a House committee that was 

very much opposed to students overstaying visas no matter what the reason. But the larger 

question, whether the mechanism could be used as a check on war powers, on unitary 

budget actions by the President without Congressional action, and controls over rulemaking 

authority of agencies. And that was the Senate's concern. And our main interest involved 

was trying to persuade the court to defer broad ruling in the case until one of those cases 

came up, one of those in which there was considerable, current interest. But nonetheless, the 

immediate focus was this particular action in which Chadha, who had come from Kenya, of 

Indian heritage, unable to stay in Kenya because he had not taken and did not want to take 

advantage of an early window in which East Asians in Kenya could become Kenyan 



58 
 

citizens. [03:26:21] And unable to get to England because England didn't want an influx of 

immigrants, comes to the United States to study, gets his degree but stays beyond his visa. In 

an experience which I cannot understand, somehow, I had not connected Chadha with a 

person I knew in Kenya. And walking into the courtroom, Supreme Court, the day of the 

argument, and walking in with his lawyer, was Alan Morrison. I said to Alan, “Gee, I’d love 

to say hello to your client. I lived in Kenya for several years.” And Alan says, okay, points to 

Jagdish. I say, “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.” But I had, so we make the argument, we all make the argument. And Chadha, 

he's now married to a U.S. citizen. [03:28:05] And one of the things we were saying to the 

court is don't decide big issues. All that Jagdish Chadha needs 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 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 in which I said, “Come over and visit,” bring 

champagne for our staff that we've 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 gallery,” and he 

comes over in the morning and we go over to the Senate gallery. And this absolutely rare 

moment in Senator procedures, Arlen Specter is giving a speech on school bussing and the 

unconstitutionality of something that the Congress is proposing to do. [03:30:06] And so, the 



59 
 

speech is about the 14th Amendment and great principles of American government. And you 

could hardly pick a moment in which you walk in and sit in the gallery, watch the Senate in 

action, and do nothing more than a quorum call, droning on for whatever hours upon hours 

or talking about some unrelated thing. Here was a speech about the Constitution and the 

most basic principles of the United States and Chadha said that's wonderful. And he was 

absolutely genuine about it. And then, time passes, we’re ready for a decision. And the court 

decides that should be re-argued, they have to do this all over again, which they did. And 

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 this array of checks and not a bad result in the long term in terms of the structure of 

American government. But a first experience arguing for the Senate in the Supreme Court. 

I'll only tell you about one other, which is I mentioned that the office was created in the 

same legislation that created the special prosecutor and then independent counsel, special 

counsel system. It was inevitable that there would be a constitutional challenge to that. 

[03:31:58] And that arose, in a case involving Ted Olson, who is a distinguished lawyer who 

was later a Solicitor General of the United States, but had gotten on the wrong side of a 

House committee, which had helped initiate the procedure for a special counsel or an 

independent counsel prosecution. And I argued on behalf of the Senate as amicus curiae. 

Because the Senate was interested and at that time supportive of that mechanism, which 

itself grown out of Watergate, and the court upheld the statute and much to the unhappiness 

of many people, including both sides of the aisle and in the Senate, the repeated use of that 

system persuaded a clear majority in the Congress to allow that to be terminated, lapse into a 

sunset. And one of the things I did after the Senate was to be the counsel for a bipartisan 



60 
 

entity created by the American Enterprise Institute and Brookings and chaired by Senators 

Mitchell and Dole and equally divided, Democrats and Republicans, former Solicitor 

General Drew Days, John Roberts, who was then a former Deputy Solicitor General. And 

we recommended the termination of the system. So, it was an experience of arguing for its 

constitutionality and taking part in its demise. [03:34:19] 

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 in the Senate is something in a sort of different setting that I came to do at the 

Legal Defense Fund, which is, that it’s very important to understand how things came to be 

the way they are. So, we can call that the history of the matter, history of an institution, 

history of a legal issue. In the Chadha case, in our briefing, spent a lot of time in describing 

the challenges that Congress had in the 1930s and coming to a resolution of a problem of 

many Europeans being here in the United States and being overstayed, because what was 

happening in Europe overstayed their visas. The Congress coming 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 wonderful trying to do history at the Congress. There’s all 

these wonderful resources, the Library of Congress, the Senate historian, lots of good aides, 

and putting those stories together. [03:36:23] But then brought together by an interest in 

weaving them together. I know I’m saying this, one of the cases that we worked on, didn't 

make an argument before the Supreme Court but wrote an amicus brief for the Senate, was a 



61 
 

case in the latter part of the 1980s, Metro broadcasting, it's in the title of the case [Metro 

Broadcasting, Inc. v. Federal Communications Commision]. And the case involved a 

challenge to, I'll call it, some affirmative actions by the Federal Communications 

Commission in granting licenses and several broadcasters who said they were adversely 

affected by the favorable action given to minority broadcasters challenged the 

constitutionality of that. And 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, and 

that would give the Senate an opportunity to appear if it so decided to defend this. 

[03:38:14] And 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 lots of detail 

out, but that’s the main line of it. And Senators Inouye, a Democrat, and Packwood, a 

Republican, had supported these steps by the FCC within a committee in which they were 

principals. And so that bipartisan interest is the basis for the Senate then directing legal 

counsel's office to direct me to defend the constitutionality of what the Congress had done to 

keep that system in place. And it connects with your question in that the Department of 

Justice was saying, among other things, “Well where was the careful study of the Congress? 

What were the hearings that led the Congress to do 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. Life begins with this hearing. And, you 

hold the hearing in this house and hearing in the other house, you then have debate on the 

floor and then action in both houses. [03:40:06] It had actually happened through the 

consideration of lots of measures, an appropriations matter in one year, another 



62 
 

appropriations matter in another year, a substantive set of hearings in a third year. And then, 

Congress is persuaded to act, and the point we made was that that's not the way in which 

you measure at all. Sometimes you can, sometimes everything is neatly packaged, but 

sometimes, perhaps even often, things are not equal evenly and uniquely packaged in which 

you look and see tied under one bow is all the consideration that’s gone into in an 

enactment. And it may have occurred over time. And so, our amicus brief was one that wove 

that together. And I think a pleasing experience is the Supreme Court upheld the legislation 

that had kept the system in place that has upheld the system. It changed its mind about some 

of the general legal issues some years later. But at that time, upheld it. And you could see in 

the Supreme Court's written opinion a great deal of the history that we were able to put 

together. So, 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 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. 

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. 



63 
 

SP: Thanks so much. [03:43:19] 

[END OF INTERVIEW]