Special of the week; Issue 8-70

The NBER the national educational radio network presents special of the week from WG you see the University of Cincinnati part 2 of 2 September 1969 was the date set by the United States government for all school systems to complete the process of racial integration. When it was announced this past August the 33 Mississippi school district would not be forced to meet the deadline. The reaction was immediate among educational systems civil rights groups the media and the public in general. Most unexpected however was the reaction with your bros within the US Department of Justice itself. Several line attorneys in the Civil Rights Division the lawyers who prosecute such cases for the department issued a statement of protest against the decision of their superiors. One attorney Gary Greenberg was no longer with the department when the immediate controversy died down. Mr. Greenberg a graduate of the University of Chicago and the Harvard Law School and a member of the New Jersey bar has been called the leader of the lawyers

revolt in the Department of Justice. He spoke at the University of Cincinnati campus recently and explained his group's action in the light of the facts as he saw them. And in light of his view of the responsibilities of the United States attorney. Last week at this time we presented Mr. Greenberg's formal remarks concerning the situation this week. Excerpts from the question and answer period which followed his prepared presentation. His first interrogator was Mr. Greenberg to identify the participants in the protest action a little better. He wanted to know who was the we. Mr. Greenberg had been talking about how many people were involved and what part of the Department of Justice did they represent. OK. The Department of Justice is organized. Basically topically into various divisions with civil rights division being one of about six or seven as a tax evasion anti-trust evasion and so on. Now within each division there is a hierarchy of an assistant attorney general who's a presidential appointee. A number of deputy attorney assistant attorney generals

who are. Appointees of the attorney general. And then a group of supervisory basically career attorneys. And then a mass of what are called line attorneys or non-supervisory attorneys. Civil Rights Division has a. Congressional authorization for one hundred six attorneys. At the time of the revolt. There were really only about 95 within the division. Of these 95 74. Were line attorneys. The protest movement was limited. To line attorneys basically for two reasons one because we thought putting the supervisory attorneys in the position of formally joining this as some of them indeed wanted to. Would make it infinitely more difficult for Mr. Leonard and the division to function. Second of all there was also concern that and this deals with the politics of the dynamics of revolution. That if we invited some of the more conservative supervisory attorneys in they might serve

to dissuade a great many people and the protest would not have succeeded. But of the 74 line attorneys 65 signed a document. The nine who didn't involve people who were either on vacation and unreachable. Some people. Actually were afraid to sign it although they agreed with the sentiments of the state of. The of the supervisory attorneys. 75 percent roughly were wholly in accord with what was said Indeed many of them wanted to sign the documents but the supervisory people decided to act as a body. And what they did. Is that this document was delivered. To the White House. To the attorney general's office and to the assistant attorney general's office on 5 o'clock on August 29. At 5:30 the supervisory attorneys. Are convened in special session. To roast Mr. Leonard. And that session lasted about five hours and it was

in effect a trial and he was asked to explain and defend. That was the course of action that they took. So I think you can safely say that the sentiments expressed in that statement represented easily. 95 percent of all the divisions personnel. Next the same gentleman who had asked the first question wanted to know how many of the Department of Justice attorneys who participated in the protest movement were no longer with the department. Well I was the only one that was forced out. There are some people who have left in the normal course of. Turnover. During the active life of the revolt which was from about August 25th through October 1st six new attorneys people who had. Gotten out of law school and finished clerkships came on. Of these six. Or. Five immediately joined with the revolutionaries. In fact some contacted us beforehand and said Should we even bother coming. And our answer was absolutely we need you now more than ever.

And. Only one person decided not to affiliate itself and that was because he didn't feel he had enough. Knowledge about what was going on and didn't want to pass judgment. Mr. Greenberg's next interrogator was concerned about the current status of the protest movement. Does it still exist. If you mean by protest. The issuing of statements. Information in the press about the attorneys doing this. The other thing that's not going on because really there's no need. Right now. Nothing of. The dimensions of what I mentioned before the mentions of asking people to support unlawful actions. Is taking place. However the attorneys. For example by this contribution to the NWA Sepi remain an organized force. They remain committed to their point of view as to the law and as to their responsibilities and the responsibilities of the division. And in a sense they say they scrutinize the decisions of the

administration. And I should think that. If there is another decision which they can again make the judgment that they're called upon to act in violation of their own they will again protest. The next person to ask a question was concerned with Mr. Greenberg's personal role in the situation and we quote his question. How did you as an individual come to the forefront of this affair and end up as the sacrificial lamb for Mr. Leonard. Why I was the sacrificial Lamb I think only Mr. Leonard can answer. Coming to the fraud forefront. There was a good deal of discontent in the division for a long time before this. Virtually the same type of sellout had occurred in South Carolina. Nobody did anything about it. Within the area where certainly the administration has a degree of discretion such as the. Proposing of new legislation. We were convinced that the voting rights proposal was a farce. Although it was certainly not for us to object to

that because there the attorney general the president certainly were acting within the scope of their responsibilities and their mandate. But it didn't make us very happy. So there was a. This contempt now. When the Mississippi situation broke. I sent a memo to all of the line attorneys. Which I asked them to. If they felt a concern for the future course of civil rights law enforcement. To come to a meeting to discuss that problem and to see if any action would be appropriate. Or. There was. Again the Appalachian leaders a bit misleading because. In a sense I guess you'd say that this was in a way what Trotsky characterized the Russian Revolution as. Led by the mass itself. Because. Initially I thought that boy if we got 20 people at that meeting we'd be doing very well. And if we could get 25 or 30 people to sign a document We'd been a success.

Well almost everybody who was in Washington over 40 people showed up at the first meeting. And after discussing the facts of what happened in Mississippi I asked them well. What is the sentiment as far as whether we should act. And I expected that to produce a great deal of discussion. A. Lot of this unity. And incredibly most people said well there's nothing to discuss of course we're going to act. And then from that point on it was there was nothing really to lead we decided. The protest was appropriate it was really the only thing we could think of. Then we decided we'd set up a committee to draft a statement. And people just said Well I think so-and-so should go on the committee. And I think so-and-so should go on the committee and we tried to get a balance from the various sections within the division which at that time were geographical. It was an eastern section the southern section the western section and so on. And then finally I said well if we pick five people anybody here thinks he should be on the committee just say so on your on the committee. And one person said I think I should be on he was on.

When it got to debating the language of the statement we spent about four hours going over every word and. When it was done people signed it. There was no rancor. It was something that really didn't need leadership. It was a really a coming together. Of points of view and of attitudes and of commitments. And it didn't need any particular individual a catalyst to to to bring it off. And I think the initial fear that if we invited supervisory attorneys. They would have dissuaded people was probably unfounded I just don't think that could've really happened. The next question when something like this. You said you originally began this revolution because the administration had no legal basis for its action in backing off from prosecuting the school districts. Did you consciously try to divorce the legal aspects of the issue from the political ones. We didn't. Completely divorce it. We certainly recognizes a role for politics and there probably always will be in law enforcement. But the question is Where is it

appropriate for politics to get involved and what type of political pressures are appropriate. Now here you had a situation where. The government had been litigating. For about three or four years. The specific. Problem with the Mississippi school the transition from freedom of choice plan to Unitary Plan. Had been really instituted in the summer of 68 with green motions. And we've been constantly pursuing that. The government had insisted in the Fifth Circuit that the job be done in September 69 and made various commitments in open court. Everything was. Going along until. Some of the worst political arm twisting and pressures became involved. And then after having been in court and having made these commitments. After all these efforts. To go through the backdoor and to seek to withdraw the plans on the very flimsy basis. That the administration shows we thought was just a totally

inappropriate place for politics to get involved. We might not have liked it. Had pressure been brought to bear for example. After the district court. Had upheld the freedom of choice plans in May of 1969 in the attorney general said well we're not going to do this expeditiously. We'll take it as a normal appeal. Which meant that if we had filed a notice of appeal in May or June of 69 in the time. We'd printed appendix and write a brief then the case would be argued in December and. Maybe in September 70 the schools would be integrated if he had said made that type of the situation and made it for political reasons. Had been some basis for saying well. That's politics and that's. Something you have to live with. But I we thought that you go too far when you've been in court when you've been before the Court of Appeals. When you ask for certain relief when you've made commitments and then. When you come along and very surreptitiously through the back door pull the rug out from under the court from under your attorneys

for example. We had a group of attorneys in Mississippi preparing to defend the plans of a CI W. had filed in the courts. Those attorneys were not told about the withdrawal of the plans of the attempt to withdraw. And on the morning of the 20th of August one day before they would go to court. The head of that team. Went to see the district judges. To tell them that the government would be ready the next day to move in court to defend the plans. One of the reasons he did this is because Hurricane Camille had been. Through Mississippi. Had blown down half of the hotel in which they were staying. And he wanted the judges to. Rest assured that the government was not in need of delay that the government was prepared. Now while he's doing this the judges already have a letter from Secretary fish as he is ushered into their office he sees the vice president and Senator Eastland leave the offices of the judge and the judges. The judges sit there and listen to him. Knowing full well that very shortly he is going to be informed that indeed tomorrow he's not going to

defend the plans in court but he will be asked to. Seek to withdraw the plans and to be and to ask for delay. This we thought was inappropriate. When the attorney when told later that afternoon. That they would not defend the plans of court the next day but they should rather move or delay their response with the say well. We won't do it. And. As a matter of fact. What they did is they said the government needs a continuance and the assistant attorney general had to come to Jackson to do it himself. Now we think here you know you've gone beyond the line where political considerations are appropriate and legitimate. Again we will quote The next question directly. Going back to this professional responsibility a lawyer according to what you have said essentially has two obligations one to the law and the other to his client. And you affirmed your loyalty to the Constitution in this action. But at the same time you disavow firm your loyalty to the attorney general's office. Now what I question is how these other attorneys not meaning

yourself can remain in the department if as you say they are in agreement on opposing the upper echelons of the department it would seem for instance An analogy might be where you have a client you disagree with. So you don't file papers for him. And this would be a breach of professional responsibility as far as I can see. First of all. The. Premise. You begin with is that the attorney client was the attorney general. That of course is the position of John Mitchell It's not our position at all. We are not there to represent John Mitchell in court. We're there to represent the United States and. In effect the public interest in court. Now within that. View of the thing John Mitchell's responsibilities are the same and what he is is the superior officer within that same frame of representation. He has the same clientele we do. But he's just in the position in the hierarchy where he has more say in what you've done. Now. True. In that type of. Hierarchical situation a

bureaucratic situation. When you disagree. With the policies of the superior officer. Resignation certainly is of course open. But. Whereas. That may at one time have been considered the only course. I think. That no longer really should be the case. If for example and again I think you assume that what you have is a constant warfare and. The attorney is deciding which orders of John Mitchell to follow and which they won't. And that just doesn't happen if you ever get to that situation. You leave because it really would be in the best interests of the division to do so because. It's better that it does something than it completely breaks down and of nothing at all. But since that isn't the situation. Since at the same time that the attorneys were. Protesting. In Mississippi. They were also handling their own cases and pursuing those cases with the full blessing of the attorney general. What you have is a situation where the

attorneys of said John Mitchell. As we see our responsibility and your. We must adhere to what the law commands. And when you tell us. To take action or when you yourself take action in which you seek to bring us along. Which we feel. Without is without even the barest minimum support in the law. We won't go along with you. For example recently the solicitor general refused to brief the federal government filed in selective service cases. By. Your reasoning really the poster general should have resigned. Having disagreed with the attorney general who signed the brief for him. I don't think that's his only option. I think in those cases he refuses to go along to disassociate himself. But so long as he can continue to function. And he can continue to work on a daily basis. Then I could be back in the Civil Rights Division working and living with them on a daily basis and

opposing them on certain. Issues where necessary. But I think that the better course I think that the field of obligation. Mr. Greenberg's next interrogator was concerned with the freedom of the Department of Justice attorneys to make the decision which they did. He asked Is there room in our government for selectivity as far as someone who is hired to prosecute cases. But in all conscience cannot prosecute certain cases such as draft cases or drug cases or is he to be completely excluded from government employee. No not at all I think. There are certain limitations. You certainly would not want to join the criminal division of the Department of Justice where that responsibility lies. But if you were in the tax division of the Civil Division of the Anti-Trust Division or the civil rights division you wouldn't be doing that. You could join. Any of the larger United States Attorney's Office where they basically do have certain departments where you could avoid these types of cases. There is you know the federal government isn't

monolithic in the sense that if you join them as an attorney you're bound to support all the actions of the government and to prosecute. Violations of federal statutes across the board into certain selectivity. And. Prosecuting. Selective Service cases and narcotics cases offend you you just. Select that area where those cases just don't come up. The next question was concerned with the goal of the US government in the civil rights area. The interrogator said that under the court cases that had been discussed it seemed that the government is trying to bring about a unitary school system in school districts where there formerly had been segregation by law or by official action. If a unitary school system is the ideal to be reached in the self does the Justice Department have any plans or does it intend to bring suits in the east and the north and those other states where they do in fact have de-facto school segregation. The questioner wanted to know under the US Constitution doesn't guarantee everyone equality. In other words an equal number of people in school based on

race or does it merely guarantee everyone an opportunity for equality. In other words not imposed equality but equal opportunity. I think to answer the question. What you need really and I don't want to be presumptuous here but a little basic outline of the 14th Amendment obligations or abilities in this area. To begin with. For example apartment school in the northern area. We have litigation pending in Pasadena California. We have litigation pending in Waterbury Connecticut. Indianapolis. In St. Louis Illinois. Now. First of all de facto segregation. In its purest sense. Means a situation where the racial identifiability of schools. Is the product of mere for acuity. Something that came about completely by chance. It was no state involvement.

No active discrimination. Now the Fourteenth Amendment only precludes. State action. Before you have a right to a remedy under the 14th Amendment. You have to show that somehow the state imposed the. Violation of equal protection. Although the Supreme Court has indicated that Congress itself can. Enact legislation dealing with private acts in this combination. Here you need show state action. Now in the pure de-facto situation it's assumed there's no state action. That being the case there's no constitutional responsibility no right and been violated and there's no right to a remedy. However I. Frankly doubt that a pure de facto situation exists anywhere in the country. In almost every situation the racial residential patterns are not the product of fortuity. They're often the product of. Zoning ordinances enforced by the state which had certainly a racial impact. It's not a racial purpose. They also

involve restrictive covenants which are enforced by state action. Which impose racial restrictions on where blacks could live. They also involve not so much that type of affirmative action but a failure to act on the part of the state. Namely that as racial patterns. Began to develop and the neighborhood began to change. School boards would draw their lines in such a way zone lines. As to recognize and give validity to and to create all black or all white schools. Now the Fourth Circuit Court of Appeals in a. Case dealing with Norfolk Virginia has indicated that it's of the view that. The. This failure to act. Is. Taking cognizance of and drawing your zoning line. In response to racial. Residential patterns. Constitutes a violation of the 14th Amendment. I think even this is ministration. And while their motives may be political I know one question that. Is very much interested in looking into the patterns in the north.

The major practical problem you find is that. When you're dealing with in the show but County Mississippi where they have two schools. Or New Kent County Virginia also where they had two schools and where as a matter of fact there was a state imposed segregation before 1954. There's a presumption of discrimination. The schools have never been unit tiles have always been a dual system it's a very easy case to prove. On the other hand if you went to New York. Or Los Angeles or probably into Cincinnati. To make that type of school today's case would take a herculean effort. It would take going back perhaps 100 years in deeds and titles and looking at demographic patterns of the city. And going through thousands of pages of school board records and minutes and so on and it would be a very difficult case. I believe the department will probably better bring some cases. It just doesn't have the manpower and the resources to municipalities where litigation in the case. So I think there will be

fact there is litigation in the north. When you say de facto segregation. Remember what you're talking about is the norm which really doesn't exist. Or that where there is. Either active discrimination in the form of restrictive covenants or things on or a failure to act on the part of the state. There is a violation of law and there is a remedy. The final person to ask a question of Attorney Gary Jay Greenberg was a faculty member of the University of Cincinnati College of Law. He asked as you see it the problem was one of a question of professional ethics as you appraise the facts of the problem presented a conflict between what the ethics of the legal profession required of you as a member of the profession and the position of the government for whom you were really an employee. Not with tenure but really serving at will. Did you ever consider at all the possibility of raising this problem to the institutionalized way in which we get a declaration of what professional ethics means in the situation which would be through the Committee on Professional ethics of the

Federal Bar Association. Well. Right after. My. Meeting with Mr Leonard. At which. We. Rehearsed the events of the. Past six weeks and. He asked for my resignation. On pain of being fired if I didn't give it to him. Some of my colleagues said. You know. Don't resign. Will bring injunctive suit in a district court of action in district court tomorrow and we'll litigate this thing. That really is. Going to the. Ethics committee of the Bar Association was also considered. And to a certain extent I think there's merit in what you say to a full airing of this. Conflict of. Obligations. I think it's important. As you indicate because it's very likely at least with this type of administration and even perhaps the best illustration. In view of the commitment of the. Law student of today. That they'll

be more of the result whatever you want to call it and. Probably be a good idea to get some kind of clarification within the profession as to what these responsibilities are. The reason these alternatives were rejected here. Perhaps was to a certain extent. Selfish not personally but for the cause that we were involved. We thought that doing this. Would shift the main emphasis of the conflict. From civil rights to other areas. We thought that really what the administration had done is. Put the civil right policies in really sharp focus and presented to the public a certain image. And we didn't want to money that we wanted the public to understand. Where the government stood what its responses and reactions were. Again we were afraid. And I think you really can't. Appreciate. The power of the press in. What the press can do to a particular

situation. And I know I sound like Spiro here but if if his motives were better and if his rhetoric were more moderate he does deal with issues which are important. We were always afraid that the press would make us look like disgruntled employees. And we thought that would be a disaster. And I think we were afraid here also that that might occur any action of that nature would be wrong. However. We didn't think it was possible and in fact. Ramsey Clark told me this that. He was shocked that as far as. You know that no one within the judiciary or. The bar really. Spoke out on these problems. We thought there was likely to be some form of response from the bar and that perhaps the American Bar Association itself. Might. As a result of this show some interest and an inclination to study the matter. But we thought from the point of view of our particular civil rights

interests. It would harm rather than help those interests. To get into. Either a challenge within the court or anything before the Ethics Committee. I'm not saying we made the right decision I think that those are the reasons that we did it. You've been listening to Gary Greenberg the former U.S. attorney with the Civil Rights Division of the Department of Justice. He answered questions about the protest action that arose in the Justice Department following the government's decision last fall to delay integration proceedings in 33 Mississippi school districts. The program was produced at the University of Cincinnati radio station WG you see this is Bob Stevenson speaking. Our thanks to WGN seasons are not new for the recording of this program. This has been special of the week from E.R. the national educational radio network.