Remembrance: Shirley Hufstedler, LLB ’49
Judge Shirley M. Hufstedler, LLB ’49, at the Morrison & Foerster office where she was Senior of Counsel and her husband Seth Hufstedler is still (Photo by Trujillo Paumier)

Robert Percival, JD ’76 (MA ’78), remembers one of his first assignments when clerking on the Ninth Circuit for Judge Shirley Hufstedler was to make the coffee. “I was one of two law clerks and the only man in chambers, so she gave me that task. I think she relished that role reversal. And I was quite happy to do it,” he says.

The role reversal was a long time coming for Hufstedler, LLB ’49, who, after graduating at the top of her class at Stanford Law School—one of only two women—rose through the judiciary in California and then became an influential federal judge. She then took on the historic role of the nation’s first Cabinet-level secretary of education, building the department while putting education and issues of equity in America’s education system front and center. Her life and career were marked by perseverance, an extraordinary work ethic, and a firm belief in law and justice—her mark on the law and U.S. education lasting.

“She was someone who had a real passion about her. When I first started working for her, she said that she viewed the role of the judge to do justice—that it was very important. And she really had a passion for improving education and expanding opportunity, which, I think, she did do,” says Percival, now a professor at the University of Maryland’s law school, who, after clerking for Hufstedler in 1978 and then at the Supreme Court for Justice White, also worked for Hufstedler at the Department of Education in 1980.

“Shirley Hufstedler was in the first generation of great women lawyers along with other notables like Ruth Bader Ginsburg and Sandra Day O’Connor [LLB ’52 (BA ’50)],” says Barbara Babcock, Judge John Crown Professor of Law, Emerita. “She was not only a skilled attorney, and an admirable judge at both the trial and appellate level, she was also a great administrator. At considerable sacrifice, she gave up her life-tenured judgeship to launch the newly created U.S. Department of Education in the Carter administration.”

Shirley Mount Hufstedler, born in 1925, died on March 30, 2016, in Glendale, Calif. She was 90. She is survived by her husband, Seth Hufstedler, also LLB ’49, and their son, Dr. Steve Hufstedler.

Hufstedler began her career in 1949, but like the few other women law graduates at that time, she was unable to find an employer willing to hire her to work as a lawyer. So she began her legal career as a solo practitioner, taking on legal research assignments and writing briefs for other lawyers—eventually opening her own one-woman law office in Los Angeles in the early 1950s.

Her judicial career began in 1961 when Governor Pat Brown appointed her to the Los Angeles County Superior Court, where she was the only woman among 120 judges. She also served on the California Court of Appeal.

In 1968 President Lyndon Johnson appointed her to the U.S. Court of Appeals for the Ninth Circuit. She was, at that time, only the second woman appointed to a federal circuit court—and the only one serving during her 10-year tenure.

“She was really a pioneer. She was a feminist and a feminist icon. She was phenomenally smart, yet wonderful to work for,” says Janet Cooper Alexander (MA ’73), Frederick I. Richman Professor of Law, Emerita, who clerked for Hufstedler along with Percival in 1978-1979.

Alexander remembers Hufstedler’s reaction when she was offered a clerkship with U.S. Supreme Court Justice Thurgood Marshall.

“She said, ‘Well if you’re going to the Supreme Court next year, we’ll have to teach you to write!’ And she did,” says Alexander. “I would send her drafts of my briefs and they would come back absolutely covered in markups. I was so proud when at the end of my term, my drafts were coming back without corrections.”

Alexander recalls Hufstedler’s commitment to access to justice—for everyone.

“She was very compassionate about litigants, and there were frequent litigants. Often they were prisoners who filed many, many petitions with the court. And a lot of judges would get upset and issue warnings that certain litigants couldn’t file papers without getting advance permission. But Judge Hufstedler said, ‘there they are in prison, what have they got to occupy their time?’ She felt strongly that she and her fellow judges were there to hear claims for justice, regardless of who they were from and regardless of whether some felt they were frivolous,” says Alexander.

Hufstedler was also dedicated to her job—putting in long hours. “I once asked her how she fit it all in—combining motherhood and a husband with such a demanding job. She said she just slept less. And I thought, I am never going to measure up to this phenomenal person,” says Alexander.

In 1979, President Jimmy Carter appointed Hufstedler secretary of education, tasking her with setting up the newly independent Department of Education and running it. While negotiating Washington bureaucracy was a full-time job in itself, Hufstedler made sure to make time for the priorities—education and equal access to it. It was a daunting task, particularly because the new department was enthusiastically opposed by Republicans in Congress, and Hufstedler was met with some stiff resistance—particularly with states concerned about a federal education department created to take a more active role in what they saw as their sovereign affairs.

“She was very committed to doing everything she could to help the states improve education opportunity and the quality of education,” says Percival, who noted that the Southern state governments strongly resisted their attempts. “One of my first assignments was to work on settlements of the outstanding civil rights complaints against a lot of the state educational institutions that were set up in the era of separate but equal.”

At the end of the Carter administration, her tenure as secretary of education over after just 13 months, Hufstedler wrote an open letter to her successor—a Republican who openly called for the elimination of the Cabinet-level position. She noted her accomplishments—the implementation of management objectives, the imposition of strict financial controls, and the appointment of an inspector general, to name a few highlights. She made a strong case for keeping the position at the Cabinet-level, arguing that the education of the nation’s children was, among other things, a matter of national security, and that properly educating the future citizens of the U.S. in science and math and languages, in which the U.S. was already falling behind other industrialized nations, was of national interest. But she also made a plea for the children of the United States—all of them, rich or poor.

“Equal access to education is not a matter of local preference or personal convenience. It is a fundamental right, a truly national responsibility,” she wrote.

“She realized she might not have as much time in office as she needed, so she worked very hard to get as much done as possible,” recalls Percival. “She was also unafraid of taking bold steps. But I believe she had a lasting impact on many lives.” SL