6
FACING A TOUGH REALITY
I WAS SITTING in my Georgetown office when I received an unexpected call from Abe Chayes, with whom I had remained friends since we met at the Harvard Faculty Club. He got right to the point: “I’ve heard about the perfect job for you. They’re starting a law school in the City University of New York and looking for a new dean. It’s supposed to be a public interest law school, which means that you would have a chance to rethink what legal education ought to look like, and, perhaps, to build public interest law into a significant branch of the profession. The chancellor of CUNY called to ask if I had any ideas. I’d like to submit your name.”
I thought back to a conversation that Abe and I had in a Japanese restaurant in St. Paul in 1976, as we swiped raw fish through soy sauce and wasabi with a group of public interest lawyers and professors. Chief Justice Warren Burger had convened a meeting of leaders in the legal profession to discuss his program of law reform, the core of which was designed to make the court system more efficient in handling corporate litigation. Our group was committed to the idea that poor people were inadequately served in the justice system and that this was a matter that should receive priority attention. I had persuaded the Chief Justice’s lieutenant that it could be 144seriously embarrassing if a conference on the reasons for popular discontent with the courts included no participants who advocated for poor people and others unrepresented in the legal process. I was scheduled to speak the next morning, and Abe was encouraging me to be really tough, to confront the Chief Justice with some issues that he might not want to hear, about injustices embedded in the legal system.
I took his advice and gave a forthright speech, addressing the inadequacies of the legal process from the perspective of the people who are excluded, while Chief Justice Burger sat in the center of the front row, scowling, with his arms folded. Not even a gesture of polite applause after I finished.
“Let’s go slow with this, Abe,” I said, remembering the incident in St. Paul. “The last time you gave me advice, you told me to get up and spit in the eye of the Chief Justice. Now you want me to go to New York City, the cynicism capital of the world, to a gritty urban university that skates along the edge of bankruptcy, and invent a new kind of public interest legal education? You sound like the boxing manager pushing his man out into the ring and assuring him, ‘He can’t lay a glove on us.’”
Meanwhile, I began thinking about Abe’s proposition. Even though I doubted whether his life in the Harvard cloisters and in the world of striped-pants diplomacy gave him enough information to know what it would be like to start a public interest law school at CUNY, I asked him to nominate me for the deanship. No harm in tossing my hat in the ring. I could check out the situation and decide later if I really wanted to pursue it.
Several weeks later, I met with Saul Cohen, the President of Queens College, a unit of CUNY, at the Shoreham Hotel in Washington, 145where he was attending a convention of educational administrators. Cohen had been entrepreneurial and effective in championing the new law school concept—shepherding the proposal through the state’s education bureaucracy, assembling political supporters, and obtaining start-up money from the state legislature. The chancellor of CUNY had delegated to him responsibility for the dean search, and he apparently had concluded that I would be a good dean for the new law school. I had created new legal institutions and carried them from the stage of good ideas into real operations with lawyers and secretaries, typewriters and filing cabinets.
He was a flattering and enthusiastic recruiter. In full salesman mode, he offered a euphoric description of the opportunity awaiting me. CUNY and the legislature were solidly behind the venture. I could develop a unique program devoted to public interest law. A handsome facility would be provided in Queens. A core collection of law books for the library had already been assembled. I was in a mood to be flattered—and I wanted to believe that the law school project was broadly and generously supported. At CLASP I had launched a small program to educate public interest lawyers. Now, here was a university prepared to start a law school to carry that work forward on a grand scale. I would have the opportunity to put together the faculty and student body, as well as design the curriculum.
I was confident that I had the necessary tools to do this job. I was a different person from the Yale graduate who had begun as a corporate lawyer. I had rejected a career following the conventional path to wealth and prestige, created activist institutions to pursue a social justice agenda, and begun to explore the inner work that would nourish and deepen my work in the world. The deanship seemed a logical next step, one that would allow me to capitalize and expand on my previous work.
146Nonetheless, before making a decision, I arranged to talk to Tim Healy, the president of Georgetown University—a Jesuit and a Renaissance scholar who had previously served as the academic vice president of the City University of New York. He knew the territory intimately. He was a jovial, cosmopolitan, and engaging person with a critical mind.
Tim and I had a long lunch together at the antique refectory table in his dark-paneled office in the Gothic building at the center of the Georgetown campus. Offering an excellent Chardonnay along with his advice, he reminisced about his role in CUNY, championing open admissions and low tuition, through the struggles of the sixties. He told me about the importance of CUNY’s historic role as an avenue for generations of immigrants and poor people to get into the mainstream of American life. “There is no other university like it,” he said.
And then, as his expression became more serious, he added the caveat: “This job will test you in every way possible—intellectual, physical, emotional, and—you may not buy this—spiritual. You will have to develop the capability to understand that remarkable city and that complicated conglomerate university. Issues of race and class are hidden behind every dispute. This is not a world of abstractions. It is grit, aggression, and concrete reality. You will have to see things clearly.”
If I accepted the deanship, it would be a novel challenge for me. Even as a public interest lawyer, pushing against powerful corporations, I lived among abstract principles, bounded by the rules of civil procedure and the polite, ceremonial conventions of the federal courts. When I began CLASP, I had the back-door retreat option of returning to private law practice. This time, there would be no easy fallback if the venture crashed and burned. I would have 147to be more resourceful, move more quickly, rely more fully on intuition. I would have to jump the great and unfamiliar chasms of race and class on a daily basis, doing aerial flips without a safety net.
But Tim wasn’t finished. “When you stand up in front of your first-year class—150 people who are gambling their careers on this new law school, whose friends and loved ones have told them that they are nuts to be going to an unaccredited law school in its first year of operations—they are going to be looking hard at you, not just listening to your words, but trying to figure out who you are. Are you someone they can trust to represent this fledgling institution effectively before the skeptics in the bar association, before the Albany politicians?”
He took a sip of Chardonnay and looked directly at me. “You have done a lot of jobs where you could succeed if you were smart, like a good law review editor. This isn’t one of those jobs. You will need those skills, but they are only the beginning. I think you can do it—but don’t underestimate what is being asked of you. Several new law schools were started in the New York area in the last few years. None of the founding deans were around to hand out diplomas at the first graduation.”
It felt as if Tim were preparing me not only to get ready for a fight but to take on a dangerous combat mission behind enemy lines. He was telling me that I would have to be prepared to confront powerful adversaries who would be dubious of a law school with a public interest mission. They would have the capacity to destroy it or corrupt its mission. He was quite specifically reminding me that others with powerful minds and stellar credentials had failed, and that I could too.
He was right—I had succeeded as a public interest lawyer primarily because I was smart and focused. But that wouldn’t be enough in this new position. It reminded me of the first time I tried to paddle a canoe in a fast-moving river. I had been a confident paddler 148on lakes in all conditions—strong winds, heavy rains, high waves. But that did not prepare me for the river’s currents and eddies, or for the force of fast-moving water when the canoe spins sideways against a boulder. On the river I had to develop new skills—the ability to read the surface of the water quickly and precisely and to focus on the present moment with clarity, while at the same time anticipating the next set of rapids.
The deanship in Queens was going to require just as big a shift in skills and perspective, and the consequences could be much larger than a capsize and a swim through rapids. It would require some of the same clarity, focus, and intuition I had learned on the river so that I could find calm in the midst of contending forces and pressures, and be balanced enough to decide when to compromise and when to refuse to yield.
If I wanted to educate lawyers to be whole people, Father Healy, speaking to me as much as a priest as an educator, was telling me that I was going to have to be a whole person myself.
Susan and I sat together in our living room the night after my conversation with Tim. We added up some of the pros and cons. Phil and Ruth had already gone off to college, but Bob would be leaving his friends just as he was entering junior high school. Susan would be leaving her burgeoning career as a social worker and looking for work in a new community.
For the first time, I would be drawn out of the safe harbor of elite education and sophisticated law practice into a world of urban tension and underfunded public education. A municipal university system would confront my idealism with the reality of big city public education—scarce resources, low status, and many students who had struggled to reach law school, and were still contending with the burdens of poverty and limited educational opportunities. We talked about how big a risk we were willing to run. We could rent our house in Washington, and move back if things didn’t work out.
149The atmosphere in Washington made the decision easier. I would be leaving as the Reagan team was putting its imprint on the city, with their commitment to acquisitiveness and self-absorbed individualism, an environment in which it was hard to anticipate forward motion in public interest law activities. I had thought that the Nixon years were the low watermark for American democracy, for compassion and inclusiveness, but I had underestimated what was ahead. Reagan tapped into a different kind of conservatism. The worst abusers of the public interest became the government officials charged with protecting public values. James Watt, an alumnus of a right-wing anti-environment public interest law firm, a champion of wilderness exploitation, became Secretary of the Interior.
We decided that the move to New York made sense. The risk was great, but so was the payoff—creating a new kind of law school to prepare our graduates for work in public interest law. When Cohen called to offer me the deanship, I accepted. This law school would be a good place to work for social justice in the Reagan years, which I thought, mistakenly, were a temporary aberration. Training the next generation of public interest lawyers seemed like a worthwhile way to ride out these hard times.
My appointment was followed by a wave of good press. It was satisfying to see my picture in the New York Times with an enthusiastic article about the new public interest law school to be established within the City University system.1 The American Bar Association and groups of legal educators invited me to give speeches at their gatherings and meetings. The fact that I would have thirty-five law teaching jobs to fill over the next three years made me a person of intense interest to many people who wanted to become law professors. 150People at other law schools who were frustrated by the rigidities of the legal education system saw an opportunity for innovation and growth in the new school. All of this was exciting, and it was easy to get an inflated sense of myself and the importance of the undertaking.
I had encouraging success in recruiting an outstanding team to plan and develop the school. In the spring of 1982, while I was still teaching at Georgetown and commuting to New York, I invited Howard Lesnick, a senior professor at the University of Pennsylvania Law School and an old friend, to join the faculty as the chief academic planner. I was asking him to give up his tenured position at a high-status Ivy League law school in order to join me at a new school that existed only on paper and had no solid assurances of ever opening its doors. I was amazed that he agreed, and I felt affirmed in my decision to accept the deanship.
Howard was a visiting professor that year at New York University Law School, and he was living in an NYU penthouse high above Washington Square. I sat with him, and the other members of our planning team, on his terrace for many hours, talking about the way the school would look and run. I was doing what I enjoy most: sitting with friends, spinning out new ideas, pushing the limits of possibility, and sharpening and clarifying our ideas. Howard brought to the venture a deeper dissatisfaction with the traditional legal education, and a more fully focused plan for how to replace it. His view was that we had an opportunity for a grand experiment, and that our options would only narrow over time. “We will never again be able to be as experimental as we can be now,” he maintained.
I was more cautious, suggesting that taking on all of it at once might not be humanly possible: a wholly new curriculum; the search for physical space; developing criteria for students and faculty selection and then recruiting them; building the constituency for the law school in legal education, in CUNY, and in Queens. I 151would have been content to leave more of the traditional curriculum in place. I found myself reining in the enthusiasm of my colleagues, insisting on the “reality factor.” Howard, a strong-minded and persuasive advocate, had a short fuse. “I never thought that you would be the one with cement galoshes,” he growled.
But Howard and I had much in common; he was a former CLASP trustee and an alumnus of the Devil’s Thumb program, and we agreed on the core elements of our plan for the Law School. We had an opportunity—to create a new law school from the ground up— from admissions criteria, through curriculum design, to the placement process. We would bring a new consciousness into law studies, moving compassion and the public interest to the center. Our law school would be a humane, integrated place where the emotional complexities and the value issues that lawyers tended to slight would have a central and honored place. We would teach the traditional adversarial skills, along with the softer, collaborative side of lawyer-ing—the strategies to find agreements between disputing parties, and to assert forgiveness, generosity, and community as important values in the legal system. Our graduates would bring this perspective into their careers and begin to influence other institutions.
We wanted to present the students from the first day with an understanding of the lawyer’s reality: that law is always practiced in a human context, that the lawyer has to understand the clients’ problems fully and not immediately translate complicated real-world dilemmas into legal categories that can be dealt with by filing a lawsuit or revising a contract. A dispute between husband and wife that has implications for their children and community must be fully understood, and may best be dealt with through mediation or counseling rather than litigation. Even more radical was our idea that the life experience of the lawyer is likely to affect the way she responds to a client’s problem—and that she should be conscious of what she brings to the interaction. 152Since they wanted to become public interest lawyers, our students would have the added challenge of sharpening and clarifying their goals in their professional and personal lives. What clients and causes did they want to serve? And what kind of people did they want to become? We wanted to encourage our students to take personal responsibility for their decisions and their consequences. Each decision should draw on the resources of the whole person— their values, emotions, empathy, sense of justice. Cultivating a humanistic perspective could nurture and deepen the lawyer’s capacity for service.
It was an inspiring vision of a new legal education, well worth struggling for.2
When we came down from the penthouse terrace above Washington Square, we found that the world looked quite different at ground level. Euphoria and visionary planning quickly gave way to more pedestrian concerns and a sense of urgency as it came home to me that we were going to have to begin recruiting students in the fall of 1982, just a few short months away, if we were to have a first-year class that would begin the next year. We were scheduled to publish and distribute a credible brochure that described a new kind of law program with enough specificity and detail that serious students would think CUNY was the law school they wanted to attend. We had to list at least a few faculty members, present a coherent outline of the curriculum, and make a plausible prediction of what the building would look like and where it would be located.
When we rode the Number 7 train and the bus to our temporary quarters in a remote corner of Queens, we found a place that was truly unfamiliar. A couple of times each week, when the weather 153conditions were wrong, the roar of the planes taking off from LaGuardia Airport every few minutes made it impossible to talk or think.
The summer of 1982 was a sobering period for me, with a number of unpleasant surprises. There was New York City itself. It was hard to be in New York City and retain much confidence in public interest law—or in law itself. A layer of cynicism envelopes the city, making any kind of idealistic enterprise suspect from the start. The most frequent questions I heard when I arrived were “Who needs another law school?” and “Isn’t public interest lawyer a contradiction in terms?” Lawyers who worked for citizen groups in the state legislature were known as “goo-goos,” a term that suggests naïve do-gooders and gooey sentimentalists, people not to be taken seriously.
New York is a tough city, where no one expects to get an even break, not on the streets and not in the courts. As jaded as Washington was in those post-Watergate days, it was by comparison a city of idealists and utopians. When I thought of courts, I pictured the Grecian temple of the Supreme Court and the dignified courthouse in which I had clerked, strolling on the Mall—a far cry from the graffiti-spattered courthouse in Queens, where the judges struggle to keep the creaking and overloaded dockets ahead of the ultimate gridlock. The idea of public interest law assumed the existence of legal norms that had some vitality and courts willing to enforce those norms. In New York, as I was coming to understand it, these ideas seemed dangerously unrealistic.
I experienced the toughness of the city on a more personal level as I drove to the Law School on the Long Island Expressway, and saw the burned-out skeletons of cars lying by the side of the road. At first I assumed that people must dump their wrecks rather than undergo the expense and inconvenience of taking them to a junkyard. A taxi driver explained my error—these were functioning automobiles forced to come to a stop because of a flat tire or an 154empty gas tank. When the driver went for help, the sharks descended, stripping the car of anything of value—tires, doors, engine parts. Then they might smash the windows and set it on fire, leaving the shell standing on the side of the road, a reminder of the tenuousness of security, the foolishness of relying on the law or the social order to provide real protection. When, one sunny afternoon, I saw a group of men stripping the doors off a car on the LIE, it undermined my own sense of personal security. And it reminded me that students who had grown up in this reality might be skeptical about an educational program that asked them to let their guard down.
My sense of being in alien territory was enhanced by the remoteness of Queens, a place visited by people from Manhattan only if they were going to the New York airports. This was the place where Archie Bunker lived. The Queens College campus was far from the New York I knew—the subway system ran nowhere near it and the bus connections were slow and erratic.
Starting a law school in Queens had more in common with starting a law school in Schenectady than it did with starting a law school in Manhattan. Knowing that the NYU Law School was a hub of legal activity, I had anticipated making the new CUNY Law School a similar hub—with better connections to the community of public interest law activists. Little did I know that no program in Queens would draw Manhattan lawyers, even if the nine justices of the Supreme Court were all participating.
When I took the job, I thought I would be a colleague of the leaders of the Manhattan bar. Instead, my connections in the legal world were in the Queens bar. While I found a few lawyers in Queens who understood and supported our program, most of them were provincial small-town lawyers who happened to practice on 155the edge of one of the greatest centers of legal sophistication in the world. This realization heightened my sense of isolation and vulnerability. I discovered that the practice of law in Queens was closely aligned with the practice of politics. Success as a lawyer depended on a cordial relationship with the political machine, headed by Donald Manes, one of the last of the old-style political bosses. Lawyers who were close to Manes prospered. Any lawyer who aspired to become a judge was well-advised to stay on his good side, which raised problems for any lawyer who filed a suit alleging election fraud or challenging corruption in a Queens agency.
I first met Donald Manes (pronounced Man-ess) at a party held in honor of my appointment at Saul Cohen’s official residence, a large Gatsby-like house with two-story Ionic columns overlooking a bay of Long Island Sound, on the high-income northeastern edge of Queens. Cohen introduced me to Manes with surprising deference. Manes was a short, heavy man, with thick features, crude manners, and a quick New York–style wit—irreverent and obscene, a political Don Rickles. His friend Joe Murphy, the former president of Queens College, told him that he could never run for statewide office unless he did three things: lose weight, take speech lessons, and read a book. He never took any of Joe’s advice.
As soon as Cohen walked away, Manes grabbed the lapel of my suit jacket and drew me into a corner. At that time I had never heard of Manes, but people in the state with any political savvy knew he was a key man for getting things done in the city, and, often, in the state. Manes put his arm over my shoulder and pulled me closer to him. He looked me in the eye and said, “This law school exists because I want it. Queens has been shortchanged. Brooklyn has a great museum and music academy. The Bronx at 156least has a zoo.” Almost a decade earlier, Manes had concluded that Queens should have a new law school. “But I was a practical person,” Manes told me. “I realized that there were already a lot of law schools in the city, and that many of them—especially St. John’s, which is in Queens—would not welcome new, low-tuition competition. I also knew that a new law school was going to cost a lot of money. So I decided to call it a public interest law school. Since it had a special mission, it was different from all the other law schools and not a direct competitor. No one knew what it meant, and I liked the sound of it. We could get the approvals we needed and the start-up funding, and then we would figure out what a public interest law school is.”
So the public interest law school idea was a cynical gimmick to stifle criticism, I thought. This school is a patronage operation. I am a lieutenant in the Manes political machine! If I had believed that this new law school was simply a product of Donald Manes’s political influence, I would not have accepted the deanship. It was a hard job anyway, and this open-ended obligation made it seem impossible. I was a good-government person, a reformer. I believed in the merit selection of judges. My past success had rested on my doing good work and producing results. Now I was facing a situation where my success might be determined, not by my performance, but my ability to keep Donald Manes happy. Even worse, it wasn’t only my well-being that was at stake. The future of the school and its students depended on it. My desire to do good work in the world had led me to become a vassal of a man so cynical that he made it embarrassing to even talk about the public interest.
I began to speculate about the ways that the Law School would be expected to repay our debt to Manes. How could we start a public interest law school if Manes thought he owned it, if he saw it as an integral part of the Queens machine? I wanted to train lawyers 157to fight City Hall, to challenge the corruption and cronyism that Manes embodied.
“We want this law school to be a high-class operation,” Manes said, as if he were reading my thoughts. “You don’t have to worry about me looking over your shoulder and placing my friends on your faculty.” Nonetheless, he took this occasion to urge me to hire one of his friends at the Law School as an administrator. “She will silence any critics who feel that the school is really a foreign institution being thrust into Queens by a group of outsiders.”
A few days later he seemed surprised when I actually checked his friend’s references and tried to make an independent judgment about her qualifications. I found that she was experienced and well-regarded, but sure enough, her husband was a political wheeler-dealer in the city and Manes’s tennis partner. “She can be your ambassador to Queens,” he said.
As he surveyed the room and whispered to me perceptive and funny comments, skewering some of the prominent guests, Manes told me that Queens was full of enemies of the Law School, waiting for the enterprise to stumble, and they would come forward angrily when that happened. “When you turn down one of their sons for admission, they will smile and say that there are no hard feelings and that you are just doing your job. And then they will look for their first chance to stab you in the back.”
Yet I grew to like Manes. He was funny, lewd, and shrewd, and he had a keen ability to assess people’s strengths and weaknesses. When we had an inauguration program for the school, addressed by Governor Mario Cuomo, the room was full of well-dressed women and men. Manes came in a polyester maroon blazer and a white-on-white shirt, as if he were going to dinner at a third-rate golf club. I found this endearing, a man who was doing it his way, making his own rules. Still, his relationship to the Law School was a constant challenge.
158As we moved into the initial planning year, our time to prepare for the admission of our first class, I discovered that I could not rely on most of the commitments that Saul Cohen had given me. I viewed our letter of understanding as a contract; he considered it a statement of aspirations and a framework for negotiations. There was no building dedicated to Law School use. The funding of the Law School was tenuous and short-term. He had in mind that the Law School would be an integral part of Queens College and that the dean would be like the chairman of the English Department. He began acting on Law School matters unilaterally—such as the submission of a budget request for first-year operations—without even consulting me.
Because there was no building for the Law School, in the summer of 1983, only three months before students were to arrive, we had to scramble to renovate and furnish a rundown elementary school to house it temporarily in time for the opening. The books that had been purchased for the law library were out of date and moldering in a basement where they had been damaged badly in a flood.
More upsetting than any of this, Cohen had a fundamentally different vision for the Law School than I did. He wanted a traditional law school with only cosmetic modifications to tilt the program slightly in the direction of public interest law. He anticipated that the most successful graduates would go to prestigious corporate law firms and many of the other students would go into conventional bureaucratic careers in the city and state.
When I had originally discussed the deanship with him, I made it clear that I had something quite different in mind. I was candid in setting forth my vision before I accepted the position. Cohen had nodded his head with seeming approval, but he never gave up the ideal of a conventional law school that would be attractive to Nassau County suburbanites looking for a professional career.
159After a bruising confrontation over my authority to choose my own administrative assistant, I wondered whether I shouldn’t get out now, before our first students had been selected, while I still had my reputation and integrity intact, before I drowned in this swamp of broken promises and political corruption.
I had a moment of hope when Joe Murphy returned in 1983 as CUNY’s new chancellor, its highest officer. This was the same Joe Murphy who had been the president of Queens College in the early seventies at the time the Law School idea was conceived. Cohen had opposed Murphy’s return as chancellor, and the ill will between the two men was barely disguised. Murphy had a role in the early days of the Peace Corps and he retained some of the style and energy of the Kennedys and the New Frontier. He sometimes fell into the socialist rhetoric he had absorbed at the knees of his mother’s Jewish radical parents. I thought he would be a good ally.
Shortly after his arrival, Murphy invited me to join him at the Association for a Better New York, a power breakfast of deal-makers, at the Waldorf Astoria. He was the featured speaker. I was delighted when, before the full ballroom, he described the Law School as one of the most important new CUNY initiatives. Then he invited me to stand, and after the polite applause had faded, he said, “If any of you have any contracts—any students you want to see admitted to the Law School—just contact the Dean directly. Don’t come to me. Someone in this system has to have some integrity.”
I stood for a brief moment gasping for breath, then sat down as quickly as I could. I could not believe what I had heard. The last thing we needed was the idea that anyone with political clout and a child who couldn’t get into any other law school could find a place at CUNY. And, worse, they should call me directly with their “contracts.” 160I felt like walking out of the room. I had hoped that this man would really understand and support what we were trying to do. But he seemed totally unreliable. He was playing his own game of political postures and power maneuvers that I could not even fathom.
Later, when I complained about his irresponsible comment before that influential audience, he shrugged and said, “We rescued the Law School from the clutches of these whores and hacks and now we have to negotiate the price of it. Running an institution is a sleazy business. If you’re too pure for the job, you shouldn’t be doing it.”
One night Susan and I went down to Manhasset Bay after dinner to paddle our canoe in the still water and watch the sunset.
“I wouldn’t have accepted the position if I had known then what I know now,” I told her.
“Of course not,” she said. “But it might be too soon to declare that the job is impossible. Why not talk it over with Ralph Siu before you do anything drastic.”
I called Ralph and told him about my struggles, the political context, and the commitments to the new law school that evaporated as soon as they were examined. He suggested a lunch at the Cosmos Club on my next visit to Washington. When I arrived, he was in the lobby to greet me, with his usual gracious smile and his manner that suggested he had nothing else in the world that he would rather do than have lunch with me—an assurance that I would enjoy his undivided attention. After we were seated and I ordered, he said, “That sounds good, I’ll have the same.”
Before the food arrived, I launched into my litany of obstacles, grievances, and betrayals—Manes’s cynicism, Cohen’s interference, Murphy’s glib indifference.
161He responded with a question: “Do you know the game of Chinese baseball?”
“No, I don’t think so. I know that the Japanese are good baseball players.”
“No, Chinese baseball is something different. The game is exactly the same as American baseball but there is one rule that is different. When the pitcher throws the ball, anyone on the field can move any base—so long as the ball is in play.”
I laughed. “So a person skilled at American baseball might do very badly at Chinese baseball. He could run to second base and find that it wasn’t there.”
Ralph joined me, with his deep and hearty laugh. “Yes, that’s right. You have to be quick-witted, agile, and prepared to shift course in light of new circumstances. I hope that you are ready to play Chinese baseball in Queens.”
I was accustomed to playing games where the rules were relatively static and predictable: statutes, rules of court, and the code of civil procedure. When we created CLASP, we created new results within the old systems of rules, inventing new interpretations and stretching the boundaries. But I never had to cope with bases that were in a different place on each play.
Ralph interrupted my reflection. “Impermanence is the only thing that you can be certain about,” he said. “What if Cohen gave you the most concrete assurances in the world? If the New York economy failed, or he got an offer to go to another university, or the board of trustees decided to close the Queens College campus altogether, what would those assurances be worth? You are wise to learn as much as you can about the surrounding circumstances and get the best assurances you can, but do not mistake them for something they aren’t. You should only stay in this job if you’re prepared to live with uncertainty, if you are prepared to try your hand at Chinese baseball.”
162While Ralph spoke, the waiter cleared the table and the dining room grew quiet. Ralph continued: “In deciding whether to stay, learn as much as you can about the details, analyze the facts as closely as you can, compare the position to other possible alternatives, and then set all that aside. Step back from your analysis and make your decision based on an apprehension of the totality, listening to the voice of intuition. Once you have made up your mind, stick to your decision and—as Truman used to say—do your damnedest.”
By then, we had finished our coffee and were walking out past the wall of Nobel laureates. I wondered how many of them were skilled at Chinese baseball. Although I didn’t fully understand Ralph’s words at the time, they gave me a framework to reflect on the challenges and problems that I was facing. If I saw my life in Queens as Chinese baseball, I thought that I could learn to play pretty well. Since I had left Arnold & Porter, I had made some risky choices, forging new paths, and things had worked out for me. The new law school certainly ratcheted up the risk level, but I thought I could manage it if I followed Ralph’s advice—see the situation realistically, without illusion, and don’t expect to play on a field where the baselines were fixed and the rules unchanging.
After talking with Ralph, I decided that I could continue to build this Law School. We had a reasonable chance of creating an important new institution. The program was one I deeply believed in, and I had not been asked yet to do anything that really violated my principles. No need to quit at this point.
As my relationship with Cohen deteriorated, I had an opportunity to assess where Murphy stood on the Law School. Cohen’s challenge to the autonomy of the Law School came to a head with my 163submission of the names of the six new faculty members to develop and teach the program for incoming first-year students in the fall. We had received over a thousand applications for faculty positions and interviewed about a hundred candidates. There was a large community of people who felt themselves invested in what we were doing. We had an excellent pool to choose from.
I had kept Cohen informed in a general way about our selection process, but I did not invite him to participate as we sorted through the applicants, nor did I invite him to interview the finalists. Perhaps I should have kept him more fully engaged, but I was concerned about his excessive intrusiveness and about the core disagreement over the Law School’s public interest mission. I also wanted to bring together a faculty that was diverse in race, gender, and prior experience and shared a demonstrated commitment to public interest law. We did not use the selection criteria we had used at Arnold & Porter and at Georgetown Law School, focused single-mindedly on outstanding performance in elite law schools.
When I brought the six names forward, I was prepared for some give-and-take with Cohen. The day after I submitted their papers, his secretary called me and summoned me to a meeting in his office later that afternoon, not a good sign.
“I find your recommendations unacceptable,” Cohen said to me, even before I sat down.
“Which ones?” I asked.
“All of them.”
I caught my breath, trying to pause long enough to get calm and centered. I went through each of our recommendations, explaining to Cohen our reason for thinking that each had a special contribution to make to our public interest law program. They were an accomplished and diverse group, but he had expected a more conventional slate of candidates. The underlying gap in vision between us now starkly came to the surface.
164Fortunately, Cohen was not the last word on the matter. The Law School and Queens College were both units of the City University, and I succeeded in bringing Joe Murphy, as chancellor, into the process. I also took the precaution of calling on Donald Manes, to fill him in on the situation and try to gain his support or neutrality. I described each of our faculty selections and their qualifications. Manes agreed to stay out of the matter. Nonetheless, he gave me this cautionary advice: “Queens, despite its two million people, is really a small town. If you fill the Law School up with a bunch of Communists and lefties, I’ll drive you and the Law School out of the County.” The comment was delivered with a smile, but I believed that he meant it and that he could do it.
So it was up to Murphy, who first tried personal diplomacy, calling Cohen and me to his house for a wine-soaked, inconclusive dinner. When that failed, he decided to forward the Law School’s recommendations to the board of trustees with his support. The board approved all of the candidates, giving us the opportunity to convene the faculty in the summer of 1983 and launch the challenging process of inventing a first-year curriculum.
The battle over faculty was critical in establishing the autonomy of the Law School and its role as a CUNY-wide institution. But we had survived only because Manes had not taken a position and Murphy had supported our decisions. This was a weak foundation on which to rest the new Law School. Since I didn’t really know what had motivated their decisions, I felt insecure about the future. Cohen was still the CEO of the largest employer in Queens and a powerful player in the CUNY system. It would be touchy to keep this support together as we went forward. I couldn’t play this game of Russian roulette very often. Neither Manes nor Murphy wanted to expend their political capital, time, and effort in resolving disputes between Cohen and me.
165The battle over faculty catalyzed Cohen’s subterranean efforts to have me fired, with whispered accusations about my indifference to academic standards, my excessive commitment to minority recruitment, my unwillingness to accept his decisions. I found myself fending off his attacks, trying to maintain a civil working relationship with him, and at the same time trying to press ahead with our mission. But Cohen never succeeded in pushing me out, and recurring rumors began to circulate that he was a candidate for other jobs. In the spring of 1985, he resigned from the University to become a senior executive in a national Jewish organization.
With Cohen out of the picture, my life became easier, and I took some satisfaction in having protected our vision of the Law School in the face of this assault by a consummate bureaucratic infighter. But in order to do so, I had been forced to become a skillful bureaucratic manipulator myself. Moreover, I still had to do what was necessary to stay on good terms with Manes and the other Queens politicians who were responsible for keeping the Law School intact and its budget growing. I was drawn into a world of unprincipled compromises around student admissions. One state legislator, in the context of a conversation about an applicant, told me about the way that he had cut the budget of a state-funded university program because the dean had been unresponsive to his admissions recommendation. Manes and Murphy double-teamed me on the admission of the son of an important Queens functionary. Sometimes I stood on principle. Other times, I settled for the best compromise that I could make. I hated this pressure and was uncomfortable with the deals that I struck to keep the train on the tracks.
Though I was the founding dean, I lived with the paradox that the survival of our public interest law school rested with Donald Manes, a man who thought that every person had his price. I continued to develop a public interest law program that was prepared to deal with a multitude of legal and governmental failures but 166resolutely overlooked the abuses that were occurring in our backyard. In 1986, after his scheme for skimming money paid for parking fines was exposed, his name would be well-known , synonymous with big city corruption and violation of public trust. He committed suicide after the story reached the newspapers, before our first class had graduated.3
In 1983 we recruited students for our first class—public interest activists, diverse in race and gender, and unified by their dissatisfaction with traditional legal education and the injustices of society. Our admissions process sought to identify applicants with a demonstrated commitment to public service. We chose older students, who brought life experience to law study—the president of the black policemen’s association, the head of the nursing union at a major hospital, environmental organizers with multiple arrests at antinuclear demonstrations, former schoolteachers, welfare mothers. Many of them had been waiting for a law school like ours to appear—career shifters and activists who felt that a law degree would make them more effective in their work. Most brought grievances and a social change agenda. Many had “street smarts” and would be effective lawyers but lacked the more conventional skills rewarded by the Law School Admissions Test—and by the bar exam. The students were an intense, involved group, full of anger and empathy, mutual regard and intergroup hostility.
I was thrilled with the diversity of the student body, a sharp contrast to the homogeneous, cloistered world in which I had been educated and employed. During the first week of classes, I sat down with a group of students who were eating lunch together. “Do you realize that we have in this class a woman who worked for twenty years as a typesetter, and another woman who’s a nun?”
167“Yes,” said one of the women. “I’m the typesetter.”
And another woman, dressed in jeans and a sweatshirt, added, “And I’m the nun. I never would have gone to a regular law school, but this promises to be something special.” We began comparing notes on whom we had met in the first-year class—a sociologist on the CUNY faculty, several nurses, a man who had taken eight years to complete college because he was driving a bus at night to support his family. Many of the students had already held leadership positions in environmental action groups and in inner-city community action organizations. I could see why Tim Healy had been in love with CUNY. We looked forward to getting to know each other better. I often spoke of these early classes of students as our cocreators of the Law School, and in a fundamental sense it was true. I admired the courage and initiative that brought them to this new, unaccredited institution.
I had anticipated admitting some students with more traditional credentials, who could aspire to more established law schools but would choose to come to CUNY because of what we stood for, because they had a deep dedication to a public interest law career. In order to recruit such students, I called on my friend Stan Katz, who taught legal history at Princeton and advised the Pre-Law Club. He invited me to come and give a talk about the Law School and then meet over dinner with some students who he thought might be interested.
At the end of dinner, after a polite conversation, one of the students said, “I want you to understand why none of us is going to apply to your school even though it sounds wonderful. We have been climbing the greasy pole of academic achievement too long to quit now. We are Princeton seniors with excellent records. We couldn’t turn down Harvard Law School and accept CUNY; we wouldn’t be able to explain it to our parents who have invested in our education, or to our friends.” We successfully recruited some 168excellent students who chose us over more highly ranked schools, but the greasy-pole phenomenon limited their numbers. I was discouraged by this conversation and sobered by the fact that I, too, would not have had the commitment and confidence to take a CUNY-like opportunity when I was a college senior.
The students arrived at the Law School on a day that was electric with excitement and anticipation. We opened our doors in that converted elementary school in north Queens, near Utopia Boulevard, remote from Manhattan and from any reminders that we were near a sophisticated urban center. The school had hurriedly been repainted and full-size furniture had been moved in. We left the basketball hoop in the space that we partitioned off for the dean’s office. Despite our ambitious program and our high-minded mission, we had to persuade ourselves and the students that this was a real law school. It was impossible to take ourselves too seriously in this setting, which was a good thing.
The faculty shared with the students the gritty reality of the New York streets—the complexity and frustration of New York over race, class, and gender—and the staccato impatience of New York interactions. Their attitude toward the law was quite different from what I was accustomed to. For many of the students and faculty, the law was not their friend. It was more likely to be a source of trouble than of support. The life of a committed lawyer was one of struggle against the indifference and hostility of powerful social forces. It was not even conceivable for a lawyer to do a little pro bono work at odd hours while spending the day orchestrating corporate takeovers.
Their anger and commitment made CUNY a place of high energy and high stress. Disagreements easily morphed into all-out battles over principles. I learned what real class resentment and 169educational disadvantage looked like. I was accustomed to a lower decibel level, to reasoned debate over issues that did not have such an intense personal charge. The feminists I worked with at CLASP were concerned with equal pay for equal work, abortion rights, and stopping sexual harassment. Some of the feminists here were attacking the nuclear family as an engine of patriarchal oppression, and were skeptical that a heterosexual relationship could be anything but a mask for sexual exploitation.
We funneled this energy into our unusual academic program. Although we taught the students to carefully analyze judicial opinions, we tried to get behind the abstract legal reasoning to the human reality that lay behind the courts’ decisions. In doing so, we invited the students to draw on their own life experiences and work through the emotional content, not simply to bury it and treat the law as an elaborate intellectual chess game. We wanted them to acknowledge the pain, suffering, and anger that the legal system had to deal with.
In our first semester we introduced the students to a series of simulations, inviting them to address legal problems of major social significance and personal importance. In one simulation we invented a group of actors who wanted to start a theater in a suburban community on Long Island and live communally in a single house. The local zoning code prohibited occupancy of a house by any group other than a “traditional family” and they were unable to rent a house.
We gave the students the local zoning code, relevant provisions of the U.S. Constitution and state constitutions, and some leading cases on housing law and discrimination, and then assigned the roles of various participants—the lawyers for the group of actors, the homeowner, the town attorney, members of the zoning board, and the reviewing judge. Under supervision by faculty members, the lawyers interviewed their clients and tried to understand what their real objectives were, researched the relevant law, and addressed the 170legal issues as well as the practical problems that the various groups would be confronting. They devised legal strategies, wrote memoranda, and offered practical advice. The students were given the opportunity to critique their own work, and to rethink how they might act more effectively. They were also asked to consider the ethical dimensions of their decisions, the ways that their actions might take unfair advantage of other parties, and to consider the extent to which their quick move into the lawyer’s role might have polarized a situation unnecessarily and even undermined the goals of their clients.
Since these were not ordinary law students straight out of college, many of them had been in these situations—homeowners concerned with property values, people living communally who were excluded from neighborhoods by restrictive zoning, policemen who had been called on to defuse volatile neighborhood disagreements—and were able to bring their experiences and values into the work in the Law School. When we dealt with family law issues such as domestic violence and child abuse, students drew on their experience as social workers, rape counselors, and crisis intervention workers, as well as their own experience as participants in complicated and oppressive domestic situations.
Dealing with civil rights cases, we encouraged the students to go into their own experience of racism, homophobia, and gender discrimination. When they read the Dred Scott decision, which upheld the property rights of slave owners, our black students had to confront the Supreme Court’s ruling that their ancestors could be treated as property.4
By the end of three years, our graduates had undertaken the work of lawyers with sufficient supervision and reflection that they could assess for themselves the complex mix of analytic clarity, ethical sensitivity, and emotional control that was necessary to function effectively as public interest lawyers.
171The program was potent medicine, and educationally rich. And it made the Law School community edgy and prone to conflict. We had some impressive successes. Many of our alumni moved into leadership positions in the public interest bar and in government with unique skills developed in our program. One graduate became the director of the Gay Men’s Health Crisis. Another is head of the ACLU in Michigan. Others are leading public interest advocates in the New York legislature. And many of them are engaged in poverty law practice—in legal aid and public defender offices and in their own private law firms.
Many of us opened ourselves to relationships with people whom we would never have met in other settings. The CUNY Law School became one of the rare places where people could mix openly across deep, normally impermeable borders. It was a rewarding and important learning experience for both faculty and students. Still, it was neither smooth nor easy, incorporating the forces that make the streets of the New York vibrate with tension and energy.
There was a downside to this mix of faculty and students that I quickly came to recognize. Many of them were suspicious of authority in general, and the authority of white, male academic administrators—like me—in particular.
The Law School was its own inward-looking universe, where faculty and students had little concern for the interface between the Law School and the world outside. Since I was the person who was responsible for the interface, I was under pressure from CUNY administrators and the board of trustees. The faculty and students were New Yorkers and activists, and they were distrustful of my claims that I had to respond to outside pressure. They had learned how to survive in an environment where only a sucker lets his guard 172down. As one feminist faculty member said, “When I hear the words, ‘Trust me,’ I immediately become suspicious.”
I had anticipated being a leader in a cohesive community at CUNY, but my expectations were disappointed. Some members of the community even defined the community in opposition and resistance to me. It was not always this way, but to an uncomfortable degree this was a persistent undercurrent. I had swings between emotional highs and lows. When I was away from the Law School it was easy for me to be a convincing advocate for the school and its program. But when I was in my office, dealing with student protests over our grading system, it was harder to maintain my enthusiasm. It was a new experience for me to be part of a small white male minority. I became aware of the white male advantage that subtly and imperceptibly—at least to the beneficiaries—affects most institutions. Much as in the way women and black people often feel silenced in places where they are in the minority, I often thought twice before I spoke at the Law School.
Perhaps my informal style made the situation worse by generating a set of egalitarian expectations that were jolted every time I denied that each of us at the school had equal responsibility for decisions. I was a dean who insisted that I had the right and responsibility to make my own judgments about faculty appointments and curriculum policy, not always deferring to the majority views of the community.
In retrospect, I see that my failure to bring the practice of wisdom to the work of the Law School more explicitly and effectively was a serious omission, one that heightened the stress levels and reduced the capacity of the disparate elements of the community to come together with compassion and mutual recognition. I wasn’t ready to do more, however, and it might have been more innovation than we could take on in a Law School that was already pushing up to the limits of what CUNY and the profession could deal with.
173Frequently caught between intransigent students, hostile academic administrators, and corrupt Queens political leadership, my life as dean was full of stress, challenge, and confrontation at the same time that our fragile experiment was beginning to bear fruit.
By the time of our first graduation in 1986, we had succeeded in obtaining preliminary accreditation from the American Bar Association. There were, predictably, some tensions in the period building to the graduation. The Law School was entitled to make recommendations to the board of CUNY for honorary degree recipients. Most were uncontroversial—such as Judge Leon Higginbotham, an eminent federal judge from Philadelphia and one of the creative minds behind the civil rights movement’s legal victories leading to desegregation, and Chief Oren Lyons of the Onondaga Nation, a leader in the movement for Native American rights and a distinguished scholar. But some of the students and faculty wanted to award an honorary doctorate to Michael Hardwick, a gay man from Georgia whose claim to distinction was that he had been the defendant in the case in which the Supreme Court upheld the Georgia sodomy statute against Constitutional challenge.5 At that point the CUNY board of trustees was still closely and suspiciously supervising us, and I did not want to have an unnecessary fight with them over an issue that was not critical to our program. So I refused to recommend a degree for Hardwick, generating a nasty confrontation in the Law School and accusations of homophobia and political cowardice. Fortunately, we reached a compromise—Hardwick would not receive an honorary degree but would get a public service award from the Law School, which would not have to be approved by the trustees.
Our first graduation was a joyous celebration. Judge Higginbotham gave a moving speech, recalling the enormous progress 174made in civil rights through the courts, and encouraging the students to work at the tasks that remained undone. Chief Lyons, in full regalia with feathers and beads, received his honorary doctorate of laws and announced that he could now honestly say that he was a “doctor, lawyer, and Indian chief.” The Hardwick award was deeply important to many of our students and faculty—and to Hardwick himself, who had never received recognition for the sacrifice he made in carrying his struggle to the Supreme Court. It is remarkable that the Law School recognized the contribution of a client, rather than his lawyer—recognizing the person who is actually taking the risks and putting himself on the line, rather than the professional who serves him.
Many families celebrated their first member to receive a professional degree. Single mothers came across the stage to collect their degrees carrying their infant children in their arms. After the ceremony, I met the spouses and parents who had made it possible for our graduates to obtain a law degree. As I spoke to the parents of one graduate, who acted as an interpreter, I heard about the child care that the student’s mother had provided for three years and the sacrifices made by the whole family in order to permit the daughter to earn a law degree. I had a renewed sense of the community of effort that lay behind each of these success stories. It was a deeply moving event, and I felt lifted up by it.
There were these magical moments scattered through my years in the deanship that energized and validated my work. The recognition that our program received within the profession was important—an award from the Society of American Law Teachers for our innovative curriculum, for example—but my participation in our students’ realizations of the American dream was the most gratifying.