The U.S. District Court of Oregon Historical Society Newsletter Memories of working for civil rights 1964, My Story of Life and Death in Mississippi By Jacob Tanzer

This is an edited version of a memoir Jacob Tan- I learned of the horrors of the Holocaust when zer wrote of his summer in Mississippi in 1964. I was ten. When I was taught in Sunday School This is part one of a two-part article. and at Passover Seders of the historical oppres- sion of Jews, there was always an important y first experience in Mississippi in the late subscript: the oppression of any people or race Msummer of 1964 was a visit to a poor, or religion even in America was as immoral and humble church set in the rolling cotton country of dangerous as what had happened to the Jews of central Mississippi. It had been torched by a gang Europe and of ancient Egypt. I was taught that of white toughs and the church was no more than vigilance was a duty (particularly for Jews) that a few burned-out embers and scattered bricks. A extended to all peoples. four- or five-step cement staircase leading to the In the seventh grade I decided to be a lawyer. entrance stood like a tombstone over the remains. I didn’t know much about being a lawyer, but I It was another act of violence in a season of vio- admired my cousins Sol Stern and Maurice Suss- lence that had seen 80 arsons in the Deep South so man who were lawyers. Maurie had represented far that year. Yet this fire and the night of murder interned Japanese during the war. that followed became a historic milestone. It also I became a lawyer in 1959 and hung up a shin- began the most profoundly moving experience gle with a friend. In 1960, I was inspired by John of my life. This is my personal story of my jour- Kennedy’s vision and I worked in his campaign. ney to Neshoba County, what I saw, and what I Wanting to be part of something meaningful, learned there. in early 1962 I moved to Washington, D.C., to be a Trial Attorney in the Organized Crime & Finding My Way to Mississippi Racketeering Division of Robert Kennedy’s Jus- I was born to Russian immigrant parents. Dad tice Department. The work was heady, exciting, had learned his English on the streets and he called Continue on page 4 black people “Niggers.” Dad was a good-hearted man and meant no disrespect. He thought that was the right word. Acceptable language changes, especially the language of race. The term “black” was at that time considered pejorative. Now it is acceptable. “Negro” or “colored” were accept- able, but are now considered offensive. Like my father, whatever term I may use in this story, I use it respectfully. We moved to Portland in 1945, where we lived Jacob Tanzer’s credentials. When he showed on NE Tenth Avenue. I didn’t know any black then to a mobster in Ohio, he eyed them, looked people, although a few black kids were in my class back at Tanzer, and said, “They didn’t do you no at Irvington Grade School. favors, Mac.”

Spring 2010 1 President’s Message

Summer is looming. It is the experienced acting as mentors to Stephen Beckham, you understand graduation season, and the aspiring. To insure that future the importance of collections like soon will be wedding sea- practitioners uphold the highest stan- ours to historical researchers and son. Vacations are coming dards of the practice, experienced scholars. The creation and preser- up. Time marches on. The practitioners have to befriend them, vation of oral histories of practi- USDC Historical Society show them, and remind them, even tioners, judges, and court staff in has a couple of events casually and informally. This social Oregon is, of course, the core mis- coming this summer, as hour is a way to do that—who knows sion of the USDC Historical Soci- well as some business to who you might meet, and what part- ety. Digitization of our materials is conduct. nership might come from it? We hope an invaluable tool in that mission. On Thursday, June 24, 2010, we to see you there. We are currently seeking funding will conduct the Annual Summer This year, the Annual Picnic comes for that project from the USDC Associates Program in partnership a little early on Sunday, August 8, Attorney Admission Fund, and in with the Oregon Chapter of the Fed- 2010. The theme honors distinguished the foreseeable future may very well eral Bar Association. The Summer trial attorneys with barbeque, music, turn to you, our members and sup- Associates Program is a day for law games, with some small ceremonial porters, in a more direct appeal for school students working summer recognition that allows us all to pause funding associated with that proj- clerkships to tour the Hatfield Court- and feel good about our profession, ect. We hope you will consider that house, meet the members of the federal not to mention meeting old and new seriously. bench, observe proceedings before the friends under the trees at the Leavy We have a new, more interac- court and learn about federal practice Hop farm near Donald, Oregon. The tive and user-friendly website on here in Oregon. It’s also an opportu- picnic is always a terrific experience, the near horizon. Justin Thorp, the nity to meet fellow aspiring lawyers and we hope to see you there. USDCHS Board member who has during the day-long program, and to As you may have heard, the Oregon taken the leadership role in that meet and network with experienced Historical Society is currently under- project, has been working with practitioners at the Bench & Bar Social going some tough financial times. The Colin Love-Geiger, Jennifer Esmay, in the late afternoon. Did I just use USDCHS has worked in conjunction Jenifer Johnston, and outside ven- “network” as a verb? I guess I did, with OHS since our inception, and dors to bring the new, improved sorry about that. our original historical materials are website on-line. In the very near It is widely rumored that there may housed by OHS. That means that future, you will be able to renew not be as many summer law clerks in access to our collection has always membership, pay dues, RSVP for all areas of law practice as there have been obtained through the OHS events, pay admission to the Annual been in the past, times being what library. Because of the uncertainty Dinner, view and hear some limited they are. So the idea of “networking” surrounding the future of OHS, portions of our oral history collec- among students, clerks and practitio- both immediate and long-term, the tion, view and research back issues ners is perhaps more important this USDCHS been moving toward more of Benchmarks. There will also be year than ever. If you have summer direct management our collection an opportunity through the new clerks working with you this summer, of oral histories, photos, documents website configuration to do more or know of a law student who is work- and other items. Currently, we are of our business and communication ing as a clerk, intern, or volunteer, or making an effort to create digital electronically and use less paper. We is idle but interested, make an effort copies of our oral history materi- expect the fully upgraded website to get them over to this program. als, photos and documents in order to be on-line and functional early And make the effort to get yourself to make those materials available to in June, and for some utilities to to the social hour that afternoon. researchers directly on-line, without be added after that. Who knows, The USDCHS knows that preserving having to depend on physical entry maybe some day we’ll sell t-shirts— history helps pass on certain kinds of to OHS. If you were at the Annual it could happen. Stay tuned. knowledge and understanding, with Dinner in October 2009 to hear Dr. – David Landrum, President

2 U.S. District Court of Oregon Historical Society Oral History Today By Janice Dilg 2009 was the year of all things digi- of Oregon Historical Society as well a completed transcript by February tal. Greg Miner continued as chair as a copy provided to the narrator. 2010—a record turnaround time! of the Oral History Committee, and Once some judges oral histories were Please note additional recognition for Tom Edmonds of the U.S. Attorney’s bound and others not, the issue of the interview and transcription work in office joined committee members format of previously completed oral the sidebar. If you would like to learn Vicki Smith and Mary Ellen Farr. histories arose. Last year, the Execu- more about becoming a volunteer As reported in the Fall 2009 Bench- tive Committee decided to fund the interviewer or offer transcriptions marks, all oral history interviews are binding of three earlier oral histories services to the oral history project, now being recorded digitally, whether and selected Judges Robert Belloni, please contact Greg Miner at gminer@ audio only, or video recordings. Much Owen Panner, and Roosevelt Robin- betemanseidel.com, or Janice Dilg at of the work of the committee in 2009 son. For 2010, the committee chose [email protected]. centered on the desire of the U.S, three more histories for binding: District Court of Oregon Historical Judges Gus Solomon, John Kilkenny, Oral History Volunteers Society’s to digitize its existing oral and Donal Sullivan. history collection. The U.S. District Court of Oregon Oral histories are in progress Time volunteered by individuals and Historical Society Oral History with U.S. Court of Appeals for the law firms toward transcribing existing Project extends sincere thanks to N i nt h C i rc u it oral histories continues to be a sig- the following individuals and law firms for dedicating their time and Judges Diarmuid nificant contribution to the success of expertise to this worthwhile proj- O’Scannlain and this central com- ect. It could not happen without Susan P. Graber. ponent of the your good work! Magistrate Judge historical soci- Joh n Jelderk’s ety’s mission. Sponsored & Volunteer Interview history is nearing Several lengthy Transcription completion, as is oral histories, Justice Wallace Carson (Perkins Coie), Justice Hans Linde (Chief Justice Paul one with Bank- ones longer than Judge O’Scannlain DeMuniz, Coquille Indian Tribe, and r u p t c y C o u r t twenty recorded Oregon Historical Society), Justice Judge Henry Hess. Shorter interviews hours, remained Greg Miner Berkeley Lent (Je Nessa L. Housley, with retired Oregon untranscribed Michael G. Hanlon), Judge Douglas Attorney General after the effort to address the back- Spencer (Carl Johnson, individual) Hardy Myers and log between 2005-2007. Greg Miner Jacque Jurkins (P.K. Gott, Lane Pow- long time Clerk of determined the annual meeting was ell), Alice Plymell by (Carl Johnson, Court Bob Christ a perfect time to garner volunteers to individual). will bring other commit to transcribing some portion USDCOHS & AAF Sponsored important aspects of the interviews. Greg and I selected Interviews, Transcription of the U.S. District Justice Berkeley Lent (22 hrs.), Justice Judge Susan P. Graber, by Janice Judge Graber Court of Oregon Hans Linde (32 hrs.), Justice Wal- Dilg (in process), Judge Diarmuid and the state’s legal community to the lace Carson (22 hrs.), and Judge Lee O’Scannlain, by Michael O’Rourke oral history project. Judge Garr King Johnson (21 hrs.). The transcription (in process), Judge Henry Hess, by recently agreed to conduct an oral his- commitments were broken into por- Michael O’Rourke (out for review), tory and will begin soon. tions so volunteers could tackle an Judge John Jelderks, by Janice Dilg In 2005, the Oral History Commit- amount appropriate for their capabili- (out for review), Attorney General tee decided to bind the final transcript ties: 10, 5, or 2 hours. Brett Kenney Hardy Myers, by Michael O’Rourke (in process), Clerk of Court Robert of all judge’s oral histories. Bound of the Coquille Indian Tribe agreed to Christ, by Michael O’Rourke (out transcripts provide a more finished transcribe 10 hours of Justice Linde’s for review). product than a loose-leaf transcript, interview, and Doug Pahl of Perkins and are added to the reference library Coie arranged to transcribe 10 hours Volunteer Oral History Interviews collections at the Oregon Historical of Justice Carson’s interview. Staff Jacque Jurkins by Mary Smith Society and for the U.S. District Court members at Perkins Coie returned

Spring 2010 3 Life and Death in Mississippi continued from page one in, beat them, and sent them home. Then the church was torched. and challenging. We met with Bobby The Congress of Racial Equality The following Sunday, June 21, regularly and he proved to be a great (CORE) organized a massive cam- Schwerner and Chaney, joined by leader, holding us to high standards of paign to register black voters and Andy Goodman, a trainee, also Jew- professional performance and integ- the time became known as Freedom ish and from New York, visited the rity. It was a privilege. Summer. Black and white college stu- ashen church, distraught by what I was a volunteer marshal at the dents were recruited and trained to their activities had brought down March on Washington on August go South to promote voting. Recruits on the Mt. Zion community. They 28, 1963. After listening to hours learned community organizing, reg- left in their car. CORE workers were of speeches on my pocket radio I istration procedures, and non-violent alarmed when they didn’t arrive at worked my way to the front ranks resistance to the inevitable violence the CORE office in nearby Meridian of over 120,000 peaceful petitioners. against them. The volunteers trav- that evening. Calling local police was As I reached the front of the stage on eled to the Southern states and held useless, so CORE members called the the stairs of the Lincoln Memorial, meetings and classes to motivate and FBI, which took no action. A miss- another speech began. The timbre of train Negroes to—after centuries of ing persons report wasn’t deemed a the voice, the phrasing, and moving intimidation and oppression—over- federal crime. biblical allusions were electrifying. It come their fear, walk up the court- The men’s disappearance stretched was Martin Luther King, Jr. telling house stairs, face hostile local officials into days. Under pressure from Presi- the world that “I Have A Dream.” and intimidating crowds, pass a voter dent Johnson and Attorney General Three months later, on November eligibility exam (something never Katzenbach, J. Edgar Hoover finally 22, 1963, John Kennedy was assas- asked of white registrants), and reg- ordered the FBI into Neshoba County sinated. Two years later, Bobby Ken- ister. They were also trained in what in full force with dozens of agents. Air nedy resigned to run for the Senate. to do if the Klan came. Force reconnaissance planes left their Nicholas Katzenbach succeeded him Michael Schwerner, a white New patrolling of Cuba and made aerial as Attorney General. Yorker in his early twenties (described maps of the county looking for sus- in Klan wanted posters as “Jew-boy picious body disposal sites. Squads 1964, Freedom Summer in with a beard”) was an experienced, of sailors walked shoulder to shoul- Neshoba County hardened, and able CORE staffer. der through the swamps. The young 1964 was the year the movement He and James Chaney, a young black men’s burned out car was found, but became the Movement. Sit-ins and man who moved from the South but no bodies. Finally, the FBI developed other organized resistance to Jim returned for Freedom Summer, were an informant. The bodies were found Crow grew stronger and white resis- assigned to conduct the voter regis- in the middle of a newly-made earthen tance grew more violent. It was led tration program in Neshoba County dam. Now the FBI’s job was to find not just by thugs, but by demagogic in the heart of Mississippi. evidence to identify and convict the governors like Orval Faubus, Ross Mississippi was cotton country. murderers. Barnett, and George Wallace who The Mount Zion Baptist Church The FBI learned that soon after they famously declared as he barred the sat amidst a cotton field in Neshoba left the church, Schwerner, Chaney doorway of the University of Ala- County. Schwerner and Chaney had and Goodman had been arrested by bama to federal officials accompany- made several secret meetings with the Undersheriff Cecil Price on a traffic ing a black student as he attempted to church elders to secure their coopera- charge and taken to jail. Price released enroll, “Segregation today! Segrega- tion in organizing a voter-registration them at about 1:30 a.m. Investiga- tion tomorrow! Segregation forever!” training program. The response was tors suspected that Sheriff Laurence Governor Wallace’s words became fearful but positive. The congregation Rainey or Undersheriff Price had the battle cry of Southern resistance. decided to participate. On the hot arranged for a gang of Klansmen to James Meredith was enrolled at the evening of June 16, eight members meet and abduct the three men when University of Mississippi in Oxford and a few children of the Mount Zion they were released, but little could over Governor Barnett’s resistance community gathered at the church for be proved in the existing climate of only after a pitched battle in which their regular weekly meeting. They silence, fear and intimidation. The U.S. Marshals were wounded as noticed headlights flashing through FBI had reached a dead-end. Some- the local police stood aside for the the church windows as cars pulled thing had to be done to jumpstart the armed mob. to a stop outside. Armed men broke investigation.

4 U.S. District Court of Oregon Historical Society FBI photos of Michael Schwerner, James Chaney, and Andrew Goodman.

My Journey to Neshoba County the murder. The grand jury’s task was me. He wished me good luck. The Civil Rights Division convened to revive the investigation by stirring On a Sunday in August, 1964, our a grand jury and formed a team to the pot, giving the impression that we team of seven flew to our base in conduct it. On hearing that the team were closing in so that the conspira- Meridian, Mississippi. John Doar, needed a prosecutor with grand jury tors and witnesses might try to save the number two attorney in the Civil experience, I set about to be that themselves by talking to the FBI. Rights Division (and Bob Owen’s person. Before I left, Jim McShane invited boss) was with us. John was already One of the great privileges of work- me to drop by his office. Jim was the well-known for accompanying James ing in the Justice Department during U.S. Marshal, a tough, savvy, grizzled Meredith as he enrolled at Old Miss the Kennedy/Johnson years was the ex-cop appointed by John F. Kennedy. and for facing down angry black opportunity to meet and work with He’d recently returned from leading a rioters on the streets of Jackson. A truly outstanding people. My bosses force of U.S. Marshals who escorted legendary figure, I found him to be at Organized Crime were fine pros- James Meredith, a black man, as he unassuming, personable and thor- ecutors. Our regular meetings with enrolled at the University of Missis- oughly professional. My awe quickly Bobby Kennedy were memorable for sippi over the objection of Governor grew into respect. me. Now, I began to meet the excellent Ross Barnett. Jim warned me that it Our task was to augment the FBI’s people of the Civil Rights Division. was dangerous down there. Amid the work by turning frightened people My boss in Organized Crime rec- pictures on his credenza, I noticed the into grand jury witnesses, organiz- ommended me for the job, but the white steel infantry helmet he had ing and presenting the case to the Civil Rights Division team leader, worn during the Battle of Oxford. grand jury, and, if possible, to return Bob Owen, had to make the call. He picked it up and showed me a indictments. We planned to learn all Never famous and now gone, Bob large bullet crease in the steel. Point- we could from others who’d been in was one of the lawyer-heroes of the ing to it he told me, “Those people jail that June night and to look for civil rights movement—smart, tough, are serious.” historic patterns in the treatment of plain-spoken, and cool-headed in the He wanted to deputize me and issue prisoners, particularly black prison- hostile atmosphere of the South. He me a .38 police special to carry for ers whom the whites found offensive. questioned me about grand jury strat- my personal safety. I’d never used a Any speculation and apprehension we egy, hazards we would encounter in handgun and this didn’t seem like a created might revive the FBI’s continu- the South, and about my professional situation for on-the-job training. I ing investigation. experience. We got along fine. I was told him that he’d made his point, I John wished us good luck and transferred to the Civil Rights team took it seriously and I truly appreci- returned to Washington. Then Bob as its grand jury expert. I had two ated it, but I thought I would be in drove us to Neshoba County through weeks to absorb box after box of more danger with it than without. As slightly rolling hills covered in cotton FBI reports. The FBI was stymied. It we parted, he warned me never to be as far as the eye could see. Virtually had the basic story, but not enough alone in Neshoba County after dark every post along the highway bore a to prove who in the sheriff’s office and to beware if ever I saw a pick-up sign that warned in big red letters, called the Klan or who committed truck with guns in its racks behind Continue on page 6

Spring 2010 5 inside the jail and those surround- ing the arson. I met cotton farmers, share-croppers, and laborers, often in the hot summer sun, sometimes in their homes. I talked with prisoners who had been in jail with Schwerner, Chaney, and Goodman. We drove the red clay farm roads to talk to church elders. Sheriff’s cars cruised by, keep- ing track of us and those we talked continued from page 5 Life and Death in Mississippi to. There were few other vehicles, but most of them were pick-up trucks “YOU ARE NOW IN FEDERALLY chatting, laughing and singing, obvi- with filled gun racks, so Marshal OCCUPIED MISSISSIPPI.” After ously happy that another work day McShane’s warning quickly became some miles, we turned into a farm was done. And then another wagon moot. We were careful not to be alone road. There were a few weathered and yet another converged on the in Neshoba County after dark. grey sharecropper shacks, pickers road, each covered with cotton and My memories are incomplete and still slowly dragging their long bags pickers like the first. As the sun low- eroded by the years, but what I through the rows of cotton and a few ered toward the horizon and twilight remember, I remember vividly. I can people sitting on their porches won- turned to dusk, the golden, reddish only offer anecdotal evidence, but dering about the white strangers in cast intensified. It was unreal, as if perhaps my telling can convey some the Ford sedans. We rounded a curve the twentieth century hadn’t reached sense of the rural black community as and pulled into a dirt driveway that this corner of the world. I experienced it. In Neshoba County, led to a space of ashen rubble. In front We drove back in pensive silence blacks and whites lived and worked stood the cement staircase leading to the twentieth century in the form amongst each other, but after a certain nowhere—all else was ash, not even of the Meridian Holiday Inn. We age they didn’t eat, learn, play, pray, charcoal. Some of the lawyers, who’d unpacked, ate at the motel diner, or communicate honestly with each been there before, contemplated the and organized our work. If there was other. (White housewives and their ruins. Bob explained, “This is always any question about who we were, it black maids were the one avenue of my first stop. This is our reason to be became obvious the next morning at honest communication that we found. here. This is our shrine.” It was the breakfast when we didn’t eat our grits. This was a source of valuable informa- remains of the Mount Zion Baptist tion to help us understand the attitudi- Church. I felt a deep spiritual com- In the Cotton Fields nal climate among a white community mitment settle into my conscious- We spent most of the next few that would never talk directly of such ness. We knew that our mission was weeks in the cotton fields, usually things to federal agents.) Whites often not just another assignment; it was working alone, except after dark. spoke to blacks in harsh, authoritative profoundly serious. The emotional We asked about police surveillance tones, expecting to be obeyed. “We experience remains vivid to this day. in the period leading up to the arson. take care of our Nigras” meant that We headed off into the chang- We tracked the civil rights workers’ blacks, needed care, supervision and ing light of early twilight, the green activity in the area, setting up meet- discipline. “Our Nigras” wouldn’t rows with white puffs against the red ings, and who might have seen it. The profit from education, didn’t warrant clay hills of cotton land all around FBI had interviewed many people in material comfort. Blacks were kept us. Driving toward the highway, we the community. We assessed their “in their place” by whatever means. came upon a wooden horse-drawn potential as grand jury witnesses If blacks failed to play their assigned cart, perhaps 30 feet long, piled high and prepared those we chose for the role submissively, they were pun- with long gray bags of raw cotton, daunting process of testifying against ished physically or suffered eviction slowly making its way to the gin to the local law and other white people. from their homes. Emmett Till, a 15 be weighed. Black pickers, men and Because of my experience (at 29, I year-old boy visiting from Chicago, women, adults and kids, most of was the oldest on the team, save for had recently been lynched for being them with white or red bandannas Bob at about 32), my assignments friendly to a white woman in a way around their heads, sat on the edges tended to be the more critical potential which, up North, would have been of the cart and on top of the bags, witnesses, particularly to the events considered normal. Being president

6 U.S. District Court of Oregon Historical Society to Mrs. Cole. The living room was small, sparely furnished and very neat. There were pictures of their children in high school caps and gowns on a simple table next to a chair. A picture of John Kennedy taken from a maga- zine was pinned to the wall and there was a framed picture of Jesus. Mr. Cole gestured me to the lone chair. He described how he and his wife were forced out of the church that night and beaten. He was clearly intelligent, soft-spoken and articulate. I thought he would make a credible witness even to skeptical white grand jurors. I asked if he felt he could testify to these facts before a grand jury. “Yes,” he said. I asked how he felt about Bob Doar, James Meredith and U.S. Marshal Jim McShane on his first day at the University of Mississippi. doing so. He said that he wanted to do right by “those boys.” He said very of the Mississippi NAACP was uppity to gain their trust, to draw out their softly, eyes tearing up a little, that it enough for Medgar Evers to be shot innate honesty and courage. They was terribly wrong that those boys on his doorstep the year before. could tell that we sincerely wanted were killed when “all they wanted to Lower class whites or law enforce- to do justice. Most responded, often do was help us.” Mrs. Cole, sitting ment usually handled the rough stuff fearfully, by speaking to us honestly, beside him silently, hands together in while middle- and upper-class whites directly and, after a while, looking us her lap, nodded. looked the other way. Deep down, in the eye. For them, it reflected deep Mrs. Cole told me how the “law” many whites knew that the treatment commitment and was an act of trust had patrolled the area in sheriff’s of blacks was unjust, but if the blacks in us. For me, it was deeply moving cars, passing by frequently, during were allowed to protest, who knew that they bravely put their fears aside the period before the arson. They what chaos would result? Thoughtful and dealt with us openly. stopped to ask her whether any civil whites might treat blacks kindly, but rights workers had been seen in the they did not publicly oppose violence, Interviewing Witnesses area. How many police were there? and accepted it as a fact of life in the The first witnesses I spoke to were “Sometimes they was one law, some- segregated South. Junior Roosevelt “Bud” Cole and his times they was two laws,” usually Over generations of often violent wife, Beatrice. Mr. Cole was the presi- Sheriff Rainey or Undersheriff Price. suppression and tenuous existence, dent of the church and, at his wife’s In the local argot, each officer was a blacks had been conditioned to play urging, had supported hosting the “law,” a truism, since there was no their roles. Yet among themselves, the voter education program. The Coles constraint on an officer’s conduct. rural blacks of the Mount Zion com- lived in an unpainted house with three Mrs. Cole would also testify. munity acted very differently, display- rooms and a porch. We would call it One evening a few of us (it was after ing elaborate courtesy, addressing each a shack, but it was immaculate and dark) called on a fellow who had been other respectfully as Reverend, Dea- well-maintained. The Coles owned in jail on the night of the murder. His con or Sister and trying to look out for some surrounding farmland of their house had no electricity and was unlit. each other. Among themselves, they own, share-cropped and were rela- We knocked and announced ourselves. acted with a great dignity that disap- tively well-off. Mr. Cole, a tall, thin, When he opened the door for us, we peared when dealing with white folks. grey-haired man, probably in his six- entered the single room with our flash- Few had been outside of Neshoba ties, straight of bearing and very digni- lights on. A strange apparition on the County. Few were accustomed to fied in his manner saw me coming and wall to our left looked as if a dark white folks like us. We addressed opened the door to me. I introduced blanket was being drawn upward at them with courtesy and respect as myself and showed my credentials. a slight angle along the entire wall of Mister or Ma’am. Our first task was He invited me in and introduced me Continue on page 8

Spring 2010 7 half of the Freedom Democrats. The regulars walked out. Mr. Kirkland had great stories to tell that afternoon on his porch. I remember asking him, “Why now?” Why now, a century after the Eman- cipation, were young people sitting in at lunch counters, freedom-riding, attempting to vote, demanding equal- ity? He answered with one word, continued from page 7 Life and Death in Mississippi “television.” For the first time, he explained, young Southern blacks grey wood, making a rustling sound. didn’t have to be this way and that saw what normal life was, how nor- After a moment I realized that it was some change might come. mal people lived, and that’s what they a sheet of roaches making its way en Freedom Brown was such a young wanted and they weren’t going to let masse up and out of the range of our man and a potential witness as well. up until they got it. I don’t know if lights. His wife and two or three chil- He had migrated North with his fam- he was right, but that is as good an dren remained in the lone bed they’d ily, but returned for Freedom Sum- answer as I have ever heard. been sleeping in when we arrived. mer. He had changed his first name We talked with the father out on the from Sam to “Freedom” to symbolize Anxious Moments porch about the events of his night in what he sought. He was a big city boy One hot, humid afternoon, I drove jail with the slain civil rights workers cocky, confident, spontaneous, and off the highway and down about and, yes, he would testify. when he smiled, which was most of four or five miles of intersecting clay Most of the blacks’ houses were the time, he showed a gold front tooth farm roads through cotton fields to loosely clustered around work- with a flashy five-pointed star etched talk to Ira Jackson, a cotton picker places on the plantations, grey and deeply in the center. Freedom Brown who’d been in jail at the same time as unpainted. Some were in poor repair was neither typical nor predictable. Schwerner, Chaney, and Goodman. and the wind would blow through We could not take a chance that his He was a shy man, perhaps 30, gentle, their disjointed boards. Some had flamboyance would impress the jurors typically soft-spoken, and he had been one room, others two or three and a unfavorably. I didn’t subpoena him. drinking a bit. It took a while to gain shaded porch with a rocker or two. One afternoon, I went to Melvin his confidence. He verified that the Inside, they were sparsely furnished. Kirkland’s house to talk to his son. three had in fact been imprisoned, Decoration was simple: often a few He wasn’t home, so Mr. Kirkland and held, and released in the early morn- high school graduation pictures, I waited for him. I knew his name ing. These facts were not disputed, usually a framed picture of Jesus or because he had been a Freedom Dem- but essential to telling the story. He Mary or a biblical scene and always ocratic delegate at the 1964 Demo- spoke directly and with quiet dignity, a picture of John Kennedy, usually cratic National Convention. In a bold and then began to tear up. The murder torn from a magazine. Some had elec- move, the NAACP had organized the of the three boys affected him deeply. tricity. Those usually had a refrigera- Freedom Democrats to challenge the “Are you willing to testify?” “Yessir.” tor (sometimes on the porch to take credentials of the Mississippi regular “Do you know you will have to look up less room), and a few bare light delegation on the ground that Negroes those white people in the eye and tell bulbs or, like the Coles, a lamp or had been excluded from the election them what happened?” “Yessir.” “Do two. Occasionally there was a tele- and to offer itself as an alternate you think you have the strength to do vision set. delegation to be seated representing that?” Once again, “yessir,” he said The younger generation was more Mississippi. The Credentials Commit- quietly, but with obvious conviction. restless, still subservient, but reluc- tee held extensive televised hearings He said that he felt a duty to those tantly so. They’d heard about sit-ins featuring, among other things, Fannie murdered boys. and Dr. King, and knew that hundreds Lou Hamer’s testimony of her abuse It started to sprinkle in large drops. of young people had come South that in prison for attempting to register to I didn’t want to be stuck in wet clay, summer to work on voter projects. vote. If I recall my history correctly, so I shook Jackson’s hand, reassured There was a buzz in the air, a vague the committee decided to recognize him that he was doing the right thing, feeling in the atmosphere that things half of the elected delegation and and I drove off. The rain intensified

8 U.S. District Court of Oregon Historical Society into a tropical downpour and the red to synagogue services. We walked in ily was out working and two women clay became increasingly viscous. I and seated ourselves in the rear. The were in the kitchen making dinner, concentrated on maintaining forward temple was modern. The colors were so he and I waited together inside, in motion. Keep moving, keep moving. cool and the atmosphere was quiet. front of an unlit living room fireplace. The wheels sank ever deeper into the The congregants prayed to the same Mr. Williams was 105 years old. He clay. I didn’t want to spend the night god as did the Mount Zion worship- liked to talk and he welcomed the alone and out of sight in Neshoba pers, but from a different world. As company of a stranger who hadn’t County. I didn’t want to abandon the in any small Mississippi city, partic- heard his stories. He had been born car, hike to the highway, and hitch- ularly in federally occupied Missis- a slave in 1859. I could hardly believe hike to Meridian with a stranger or sippi, no stranger was inconspicuous. that I was actually talking to a freed worse, with a patrolling sheriff. The After only a few minutes, the presi- slave! He told me of one of his earli- car slowed almost to a stop, with dent of the temple walked back to us est memories, the day his father “was wheels spinning, gained purchase for and courteously asked who we were sold down the river,” meaning that a bit and then slowed back to a creep. and what brought us to Meridian. I he had been taken from his wife and The process kept repeating as I did answered briefly and he returned a children and sold to a new owner everything I knew to keep moving. correctly courteous welcome. I may farther south. He remembered his After a seeming eternity of inching do him an injustice, but I detected mother’s anguish and he never saw forward, the wheels caught the cement a frisson of alarm rather than the his father again. of the highway and I, in my red clay- warmth of fellowship. My sense was A century after Emancipation, the covered Ford, was safely on the road that the congregation was intuitively oral history of slavery was still very back to Meridian. torn between a duty of hospitality and much alive. I realized as I chatted One evening, a few of us took a apprehension about having a squad of with Mr. Williams that the stories of short break from our legal work. It federal agents in their midst. slavery were the stories told around was Yom Kippur evening, one of the the hearth in the evening. As I was Jewish High Holy Days. From its ear- Connected to the Ages shaped by my family’s stories of the liest days of white settlement, Jews The next morning, it was back to hardships of life in Russia and of had settled throughout the South work. There was an old man I noticed hard-scrabble immigrant survival, and became the prominent mer- regularly every time I drove by his there had been and maybe still was chants in many Mississippi towns. house on the road which went by the in every Southern black family a Mr. Their descendants moved out into the church site. He was thin, gray-haired Williams who passed on the lore of professions. The role of Jews in the and bent over a bit. I would see him slavery to the generations after. To South had always been ambiguous. snoozing in his rocker in the shade us, slavery was ancient history, like After all, Judah P. Benjamin was the of his porch, then get up, go into the the Jews in Egypt, but to the South- primary financier of the Confederacy. field right next to the house and pick ern blacks of that era, the memories Particularly with the Holocaust in a little cotton. Then he would snooze and lore of slavery remained a living recent memory, Southern Jews went a bit more and then pick some more part of their culture. along with Jim Crow—they had little cotton. He would hook his burlap Over those weeks, we had gotten to choice—but tended to have a certain bag, a typical bag about 10 feet long, know and respect the black people of feeling deep down that if it weren’t around his left shoulder, and drag it the Mount Zion community. In their the coloreds, it would be them. While slowly down the row, picking cotton dignity and understanding, they had some were active in the White Citizens puffs with his right hand and insert- overcome the poverty of their cir- Councils and publicly supported Jim ing them into the bag. He repeated cumstances. But our purpose was to Crow, most simply kept their heads the cycle all day, every day, and it gather and organize the human mate- down and tried not to call attention soon became a familiar sight which rial for our grand jury presentation. to themselves. I came to expect whenever I passed We had done so. The time had come. Though not particularly religious, the house. I was definitely curious. Two or three I went to his house one late after- Part two of this Memoir will appear other Jewish members of the team and noon to interview his great-grandson, in the Summer Oregon Benchmarks. I attended Yom Kippur evening ser- a potential witness. Four generations vices at the Reform Jewish temple in lived in the house and the old man, Meridian. Travelers and other strang- Mr. Williams, was the patriarch. ers are traditionally welcomed warmly When I got there, most of the fam-

Spring 2010 9 Judge John Cooney: Medford’s First Magistrate Judge By Joshua Smith This article was developed from an Westminster College in Fulton Mis- oral history conducted by Clark souri in the fall of 1949. Hansen in May and June, 2005. It is Despite earning a basketball schol- now housed at the Oregon Historical arship, Cooney aspired to be a profes- Society on behalf of the U.S. District sional baseball player. After his first Court of Oregon Historical Society. season of college basketball, he got his chance. In 1950, Cooney signed ohn Patrick Cooney was born in with the New York Giants baseball JSedalia, Missouri (an old railroad team and went to spring training town with a population of about in Florida. He was thrilled to have 20,000) on January 21, 1932, to the opportunity to watch, and play Harry James and Marcelline Cooney, along side legends like Willie Mays the sixth of ten children in a closely and Ted Williams. knit Irish-German Catholic family. That summer, professional base- He had two brothers and seven sis- ball brought Cooney to Medford, ters. Cooney’s father was a lawyer, Oregon, where he played first base and worked as a claims adjuster for for the Giants’ Class D baseball team the railroad. in the Far West League. Though it Cooney spoke at length about the Catholic School until he was a junior was the lowest professional league joy of growing up in a large family. in high school. He enjoyed the highly at the time, and Cooney wasn’t sure He had an extraordinarily happy disciplined environment and excelled where Medford was, he was thrilled childhood, and felt very fortunate in English and Latin studies and just to be playing baseball. His first to have been raised in a home where enjoyed being a member of the choir. season, Cooney had an impressive everyone cared so much for one He recalled that he did not excel .318 batting average, which earned another. Although the Great Depres- at math. At Sacred Heart, Cooney him a promotion to the Western sion was difficult for everyone in a developed his passion for fishing, Association league in Missouri the financial sense, Cooney recalled that basketball, and baseball. In basket- next season. “We always had enough to eat and ball, he made the Sedalia American In his second season, Cooney led we always had a roof over our head.” Legion team, which made it to the the Western Association league with Members of the family contributed state championship game in Missouri. a .344 batting average and earned by working odd jobs or doing chores In between his junior and senior another promotion. Since Mickey around the house. As a boy, Cooney year of high school, Cooney’s father Mantle had led the same league in worked at the local ice cream shop, was appointed to be the Claims Attor- batting the year before, Cooney felt and mowed lawns in the neighbor- ney for the Missouri Pacific Railroad optimistic about making it to the big hood to make extra money. and the Cooney family moved to leagues. The next year, he realized Cooney’s family remains very St. Louis, Missouri. It was an eye- that it was not to be. He was pro- close. At the time of the interview, opening experience, and one that moted to a better league, and “the Cooney’s mother had just celebrated changed the direction of Cooney’s quality of play was much superior to her 104th birthday with almost all life. He went from a small Catholic what it had been the year before,” and of her thirty-eight grandchildren, school with a hundred students to “you could see the really gifted ones seventy-seven great-grandchildren, Webster Groves High School, with still perform very well and those of us and four great-great-grandchildren more than 1,500 students. Cooney who were less gifted didn’t perform in attendance. Having a large family continued to excel in basketball and as well as we had.” that remained so close was “certainly baseball, making both varsity teams. Cooney was sent back to the one of the best things that ever hap- With hard work and guidance from Far West League. Though it was pened to me.” his new basketball coach, Cooney a demotion of sorts, it turned out Cooney attended Sacred Heart secured a basketball scholarship at to be a blessing in disguise. While

10 U.S. District Court of Oregon Historical Society playing baseball in Medford during at Willamette as a Democrat against his former the summer 1951, Cooney went on Law School. He classmate and friend Justin Smith for a blind date with Eleanor McCabe, fondly recalled Medford District Attorney. Though the daughter of an Irish brewer in his first day of Cooney lost that election, he liked Medford. She was home from Rosary classes. After to joke that Smith later told him that College for the summer visiting her p u t t i n g h i s he wished Cooney won, and he lost. family. In January 1952, they were daughter on the Cooney ultimately went into pri- married. bus to her first vate practice with Don Denman, who In 1952, Cooney retired from pro- day of school, had campaigned against him during fessional baseball after three sea- Cooney went to the election for District Attorney. Graduating from sons. Though it was an immensely Willamette Uni- his first day of That was one of the wonderful things enjoyable experience that gave him versity Law School classes, as well. about practicing in Medford, Cooney the opportunity to see the country Cooney’s law recalled, “you trusted all of the law- and make a number of long-lasting school experience was tremendously yers with whom you were dealing.” friends, Cooney didn’t regret walk- positive and he made many lasting, Medford was never a very cutthroat ing away from the game. His new treasured friends. His class was one legal community. “Even though you bride was pregnant in the summer of the largest in Willamette history, were opposed to someone and they of 1952, and it was time to move on. yet Cooney recalled being close to were trying to win their case against After retiring from baseball, many of his classmates. He met you, you trusted them and they Cooney and Eleanor settled in Med- Don Denman his first year, the man trusted you. It always amazes me to ford. Cooney loved the town after his who would be his legal partner for observe lawyers that are litigious to very positive experience there as a the majority of his career. He also the point where it becomes personal. ballplayer. He worked as a car sales- became very close with classmates I have said to many lawyers before man and a men’s clothing salesman Justin Smith, Bill McAllister, and me, ‘you’re making your work much until 1955, when he decided to go future Oregon Supreme Court Justice more difficult than it need be. If you back to school to finish his pre-law Wally Carson. just were cooperative and handled degree. In 1959, Cooney graduated After law school, Cooney was things professionally, it wouldn’t be from Southern Oregon University. invited to practice with Bernie Kelly such a difficult job for you.’” In the fall of 1959, Cooney enrolled and Bob Grant. In 1968, Cooney ran Continue on page 12

Magistrate Judge John Cooney (second from left) with his colleagues on the U.S. District Court of Oregon, circa 1995.

Spring 2010 11 time magistrate judge in Medford. than remunerative.” Nevertheless, Judge Cooneycontinued Cooney, like many lawyers, thought Cooney applied for the job. In 1988, As a private practitioner, Cooney that it would be an interesting oppor- Magistrate Judge Cooney became the focused primarily domestic relations tunity. He recalled, however, that the first magistrate judge for the Medford issues, personal injury work, and new position did not attract many Division of the U.S. District Court for criminal law. In 1988, the District of applicants because it was a part-time the District of Oregon. Oregon decided to establish a part- position, and “more time consuming Judge Cooney vividly recalled the day he was appointed to the bench. He was honored to be a part of the Dis- trict Court. Because it was a part-time Honorable Judge Owen Panner: position, Judge Cooney maintained “Positively Contribute” his law practice. Soon, however, his duties as a magistrate judge became By Jennifer Jill Esmay more time consuming. In 1993, the oday we honor Lifetime Mem- District of Oregon decided to make Tber, Honorable Owen M. Pan- the position a full-time position, ner who is a U.S. District Court although this time, there were numer- Judge for the District of Oregon and ous attorneys interested in the posi- a recipient of the Society’s Lifetime tion. After a long application process, Service Award. President Jimmy Judge Cooney was selected. Carter appointed Owen Panner to Judge Cooney noted that most non- the U.S. District Court for the Dis- lawyers do not pay much attention to trict of Oregon in 1979. Prior to his the difference between federal magis- judicial appointment, Panner worked trate judges and Article III judges. He for 30 years in general trial practice. joked that “we had the best job,” in During his career in private practice, that our responsibilities are less oner- Panner took on many difficult and Judge Owen Panner (left) and Judge ous than those of Article III judges.” John Cooney. unpopular cases. He also became For example, Judge Cooney felt that general counsel for the Confederated histories of so many lawyers and it would be very difficult and, at Tribes of Warms Springs. Today, judges. That’s what being a member times, upsetting to impose some of although Judge Panner spends most means to me. It is about helping oth- the sentences that were mandated by of his time in Medford, Oregon, he ers understand the past, so that they the federal sentencing guidelines. As still hears cases in Portland and does can truly contribute to our future.” a magistrate, Judge Cooney plays a court work that involves sentencing Sitting in front of a man who has limited role in federal criminal cases. people who have been convicted of done so much outstanding work in He is not authorized to preside over criminal matters. He also handles and out of court, Judge Panner is felony criminal trials, or impose any discrimination rights cases. humble and very active in the legal sentence of imprisonment longer than When asked what being a lifetime community in Oregon. Understand- one year. He does, however, preside member means to him, Judge Pan- ing that he had a busy schedule while over misdemeanor criminal trials, first ner said, “It’s wonderful. I love the here in Portland, when asked, the appearances, detention hearings, and Society and am involved because final question—what is the main arraignments. history is what we use in order to message you want to send out right With the consent of the parties, learn about the future. All lawyers now to members and those who will Judge Cooney has authority to preside who are active in the court system read this article? He responded, over any civil case brought in federal should be members of the Society. “I feel as if attorneys should posi- court, with or without a jury. Provided What’s important: the events—the tively contribute. The contribution that diversity jurisdiction exists, Judge educational programs that it puts on lawyers can make in committees is Cooney hears personal injury claims, to tell about history. The ability of important because they will benefit contract disputes, and run-of-the mill lawyers to get acquainted with judges from that knowledge and from that tort claims. He also hears disputes and vice versa; and the record keep- association with other people who involving federal law, including civil ing the society does of the lifetime are active.” rights claims, environmental cases, and patent and copyright cases. Envi-

12 U.S. District Court of Oregon Historical Society ronmental cases, such as timber and for making him look good. Both of have been visited on them, and I think water disputes, have been some of the them have been with Judge Cooney fair treatment as a judicial officer is most interesting and contentious cases for his entire career. Judge Cooney of primary importance. So the people he has heard. He noted that there was noted that he might have over 150 who come before you, whether they little coverage of environmental law civil cases open at any given time, are civil litigants or whether they are when he was in law school, and in and that his staff did a remarkable people convicted of crimes, or charged many ways, the District of Oregon is job of keeping everything organized with crimes, they should garner a leading the way in that field. and running efficiently. sense that you are fair, and that you Judge Cooney also described the Towards the end of his interview, are treating them with dignity.” unique and vital role that magistrate Judge Cooney talked about the cen- Judge Cooney felt blessed to have judges play in the District of Oregon. tral role that his family played in his the opportunity to serve as a magis- Cooney felt that the “Article III judges life and career. He felt blessed to have trate judge. “It’s been a wonderful in Oregon have led the nation in the a supportive wife, five wonderful life, and we’re grateful for it.” utilization of magistrate judges.” children, and several grandchildren. In March 2007, Judge Cooney In many districts around the coun- Cooney credited his wife for making retired from full-time duty as a mag- try, magistrate judges rarely (if ever) it possible for him to be a successful istrate judge. He continues to serve, preside over jury trials. As the only lawyer and judge. Law school was however, as a part-time federal mag- permanent federal judge in Southern very difficult for his wife, Cooney istrate judge on “recall” status. Pur- Oregon, Judge Cooney presides over recalled. They had four children, suant to Title 28, United States Code numerous civil trials. This is due, in living in a 10-foot by 45-foot mobile Section 375, a retried magistrate judge part, to area’s geography. For many home. “I got to go to school everyday. may agree to be recalled to serve when litigants, it is more efficient and eco- But guess who didn’t?” She enabled needed by the judicial counsel of the nomical to consent to trial by the Cooney to be a successful lawyer; circuit in which he or she was assigned magistrate judge, instead of traveling “She made it all possible.” at the time of retirement. Last year, to Portland or Eugene. Judge Cooney also discussed his for example, Judge Cooney traveled Judge Cooney also expressed grati- judicial philosophy. “Everybody to California to briefly serve as a mag- tude for the respect with which the should have the opportunity to seek istrate judge. He periodically agrees Article III judges treat magistrates redress for any wrongs that they think to accept cases in Medford as well. in Oregon. “We’re just blessed in the Oregon District, in having such a cohesive group of people. So, I’ve CALENDAR enjoyed the experience tremendously.” Judge Cooney felt fortunate to work in a district where he had absolutely no reluctance in calling any one of the Article III judges to ask them for 2 Great Events advice, or simply to chat. “It’s just been a privilege to be a part of the Dis- June 24 trict of Oregon.” Judge Cooney was Summer Associates particularly appreciative of his long- Program and Bench and time friend Judge James A. Redden, Bar Social with whom he has been friends since the early 1950s. Judge Redden and Judge Cooney practiced law together in Medford, and “like everyone else, I’ve enjoyed him immensely.” For most of his career, Judge Cooney was the only federal judge permanently assigned to the James A. Redden Federal Courthouse in Med- August 8 ford. He praised his law clerks, Win Annual Picnic Thivel-Kellerman and Karen Gilbert,

Spring 2010 13 On Our Members’ Bookshelves

Cross Purposes: Pierce v. Society of Sisters and the English literacy test. The Klan also Struggle over Compulsory Public Education played an important role in the guber- by Paula Abrams. (University of Michigan Press, 2009) natorial election of 1922. Reviewed by Susan M. Leeson (Senior Judge, State of Oregon) Appealing to “100% American- ism,” the Oregon Klan embraced a Most scholars agree that and social conflicts lead to landmark proposal by the Scottish Rite Masons the United States Supreme decisions.” to enact compulsory public-education Court’s decision in Pierce Abrams devotes most of the first laws and English-only instruction. v. Society of Sisters (1925) part of her three-part book to the The initiative process, a so-called is a landmark decision that circumstances leading to the Compul- progressive reform earlier in the cen- changed the American legal land- sory Education Act, its anti-Catholic tury, provided the mechanism. The scape in important ways. But why is animus, the campaign for and against Masons, with at least some Klan help, it a landmark? it, and its adoption by the people on quietly circulated petitions in support November 7, 1922. If the law had of the Oregon Compulsory Education Some common claims about the taken effect in 1926 as scheduled, it Act (a misleading title because Oregon case include it establishing that: probably would have put both sectar- already had a compulsory education • religious liberty can be protected ian and nonsectarian private schools law), mandating compulsory public under the Due Process Clause of out of business. education. the 14th Amendment without The political and social conflicts The Compulsory Education Act reference to the 1st Amendment leading to Pierce trace to the after- required parents or guardians of Free Exercise Clause. math of World War I. That war may most children between the ages of • the Supreme Court’s willingness have been fought to make the world 8 and 16 to send their children only to fight religious bigotry. “safe for democracy,” but it left many to public schools. Within days of the • parents and guardians have the believing that the best way to protect vote, opponents announced that they right to direct the upbringing American democracy was to purge would challenge its constitutionality and education of children under it of diversity. While the national because they knew the Klan-domi- their control. government was pursuing Attorney nated legislature probably would not • a child is “not a mere creature of General A. Mitchell Palmer’s cam- repeal it. The dynamics of those legal the state.” paign to deport leftist immigrants challenges are the foundation of the • private schools are businesses and stifle political dissent, Oregon second part of Cross Purposes. The whose contracts are entitled to was engaged in its own democracy- Catholic Church was one of the sec- constitutional protection. preserving agenda. Abrams tells this tarian groups willing to take on the • there are constitutional limits on story in part one of Cross Purposes, litigation, but it took six months for “direct democracy” as well as on recounting an unattractive period of church officials to decide whether representative government. Oregon history about which many local or national legal counsel should • the case itself is part of the are happily ignorant and some would take the lead, (eventually both were Supreme Court’s legacy of pro- rather forget. involved), and which of its Oregon tecting personal liberties not Abrams traces the arrival of the schools should be the lead plain- explicitly guaranteed in the Con- Ku Klux Klan in Oregon in the early tiff (the Society of the Sisters of the stitution or Bill of Rights. 1920s. The Klan usually is dismissed Holy Names of Jesus and Mary was as a radical but small faction noted chosen). Law professor Paula Abrams has for racial and religious intolerance. In Meanwhile, Hill Military Academy, a long-standing interest in what she Oregon, however, the Klan quickly a private nonsectarian school, filed calls this “constitutional chame- became a dominant force. A Klan- suit against Governor Walter Pierce leon.” Her 2003 law review article, controlled legislature enacted laws and other state officials in Oregon “The Little Red Schoolhouse,” traced prohibiting teachers from wearing federal district court, asserting that Pierce’s “quirky legacy” in American religious garb in public schools, the Compulsory Education Act would constitutional law. Cross Purposes restricting aliens from owning prop- deprive it of property without due pro- explains “how deep-seated political erty, and requiring voters to pass an cess, deny it the equal protection of the

14 U.S. District Court of Oregon Historical Society laws, and impair to statutes affecting individual liber- parties negotiate responses to such the obligation ties), the Court referred to Pierce as a questions in every case is the real stuff of its contracts case about religious minorities. Later of litigation, frequently overlooked in w it h pa rent s in the century, Pierce had become Constitutional Law courses. Cross and businesses. authority for rights of personal pri- Purposes bridges the gap between Its claims were vacy in cases addressing abortion and doctrinal and clinical instruction. unexceptional homosexual sodomy. The final part of Cross Purposes during the so- For law students, the second part examines the legacy of Pierce. The Paula Abrams called Lochner of Cross Purposes is as instructive as decision was a dagger in the heart of Era, when the Supreme Court pro- the first part is for history students. the progressive campaign for public- tected economic and property inter- Legal challenges involve myriad stra- only education as the preferred means ests against governmental regulation. tegic decisions, all of which were in of inculcating democratic values The Sisters’ complaint went further, play in Pierce: Who would be the in American citizens. As legal doc- asserting that the 14th Amendment strongest plaintiff? Did schools have trine, Abrams argues, Pierce was the protects the right of parents to con- standing to assert the rights of par- “bridge” to the constitutional trans- trol and direct the education of their ents to control and direct the educa- formation that occurred only a week children and the right of children tion of children? Should the case be later in Gitlow v. New York, when to attend private schools. The Sis- filed in federal or state court? Was it the Court for the first time assumed ters’ complaint also contended that premature to seek injunctive relief in that speech and press rights in the 1st free exercise of religion is one of the 1923, since the law was not scheduled Amendment limit the states as well unspecified liberty interests protected to take effect until 1926? What were as the national government. Today, by the 14th Amendment. (The com- the strongest constitutional theories Pierce is given as an example of the plaint made no mention of the 1st and arguments? Which precedents Supreme Court’s willingness to pro- Amendment, which at that time the were helpful and which were not? tect rights not explicitly enumerated, Supreme Court viewed as a limitation How far did the plaintiffs dare try such as parental and privacy rights, only on the national government.) to nudge the law in a new direction? from intrusive governmental regula- Justice James McReynolds, writ- What would be the most persuasive tion. As authority for constraining ing for a unanimous Supreme Court, way of doing so? Could the strong educational policy or the rights of declared the Compulsory Educa- personalities and egos engaged in the parents outside the sphere of educa- tion Act unconstitutional, thereby challenge maintain a unified front tion, by contrast, Pierce has had less affirming the decision of the federal despite strong internal disagreements precedential clout. For Abrams, the district court of Oregon. Neither about the best way to proceed? How Continue on page 16 court questioned the state’s power to require mandatory school atten- dance or to set academic standards and impose regulations on education. They rejected only the state’s power to compel public education. The courts seemed to have little trouble dismantling the Compulsory Education Act. Both ruled relatively quickly, and the Supreme Court’s opinion was a remarkably short five pages. Short opinions often mean that the facts pointed to a clear con- stitutional conclusion. Not so Pierce. Its lack of doctrinal clarity is well documented. In the Supreme Court’s famous Footnote 4 of United States v. Carolene Products (1938), for instance (signaling the Court’s will- The Oregon Compulsory Education Act passed with strong support from the ingness to give “heightened scrutiny Oregon Ku Klux Klan in the 1920s. OHS neg. OrHi51017

Spring 2010 15 OFFICERS: Hon. Ann Aiken, Board, Chairman, Ex- continued Officio; President, * David A. Landrum; Vice President, Review: Cross Purposes *Kari Furnanz; Treasurer, *Michelle E. Barton; Corporate/ Executive Secretary, *Kathryn P. Roberts; *Kerry Shepherd, Immediate Past President case retains vitality because it addresses “fundamental questions about the meaning of personhood in a democratic society” and reminds us of 2010 BOARD MEMBERS: Courtney Angeli, Ex-Officio; Sean Bannon; Michelle Barton; Hon. Trish M. Brown; the ongoing struggle to “protect the individual against state imposed *Marc M. Carlton; Hon. Paul De Muniz, Ex-Officio; *Thomas H. Edmonds; *Julie Engbloom; *Jennifer Esmay; identity.” *Mary Ellen Page Farr; Gary Gaydos, Ex-Officio; Colin Clearly, Cross Purposes was written by a law professor. It is thorough, Love-Geiger, *Hon. Dennis J. Hubel, *Jenifer Johnston, Ste- phen J. Joncus; *Hon. Edward Leavy; Josh Lute, *Gregory detailed, and in some places it seems repetitive, although the repetition J. Miner; *Hon. David Rees, *Bruce A. Rubin; *Carra L. Sahler; *Linda Sherry, Joshua P. Smith; *Vicki L. Smith; usually is in aid of a different perspective on Pierce. Journalistic accounts *John W. Stephens; *Justin M. Thorp; *Shannon Marie Vincent; Dr. George L. Vogt, Ex-Officio; *Cody M. Weston. of Supreme Court decisions, such as Simple Justice (Brown v. Board of Education (1954)) or Gideon’s Trumpet (Gideon v. Wainwright (1963)) 2010 HONORARY MEMBERS: The Belloni Family, Ernest Bonyhadi, Helen Burns; George Fraser; Randall Kester, are superficially more interesting. Unlike those case studies, Cross Pur- Katherine O’Neil, Hon. Owen Panner, Hon. James Redden, poses probably won’t make any best seller list or be made into a movie. Richard B. Solomon, Norm Wiener. 2010 LIFETIME MEMBERS: Jeffery Batchelor, Frank But it will inform law students who are willing to go beyond doctrinal Bauman, Owen Blank, *Hon. Anna J. Brown; Helen Burns, one-liners in their understanding of constitutional law. It will remind Donald Cinnamond, Sarah Crooks, Paul Fortino, George Fraser, Edwin Harnden, Cynthia Harrison, Douglas Houser, Oregonians of an uncomfortable period of intolerance and bigotry from Hon. Robert Jones, Randall Kester, James Knoll, James S. Leigh, Nancy Moriarty, Jeffrey Mutnick, Elizabeth which they can learn or which they may perhaps repeat. It will serve as Newcomb, Verne Newcomb, Daniel O’Leary, Hon. Owen a cautionary tale about the use and misuse of the initiative process. And M. Panner, Hon. Edwin Peterson, Dian Rubanoff, Sarah Ryan, Thomas Sand, Arlene Schnitzer, John Schwabe, it will be a reference source in the ongoing debate about what Pierce Norman Sepenuk, Arden Shenker, Richard Solomon, really means. Gayle Troutwine, Heather Van Meter, Timothy Williams, Kelly Zusman. 2010 IN MEMORIAM: John Jaqua, Hon. Donal Sullivan, Donald Wilson NEWSLETTER: *Adair Law ([email protected]); Newsletter Designer, Jeanne E. Galick; Oral History,*Jan Dilg (dilg@ teleport.com); USDC: *Linda Sherry

*Executive committee member

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