Transcript:

First, I emphasize I’m 89 years old. A lot of my memory has faded, and what little there is left is often wrong. So if you’ll take those two caveats and let Mike correct me as he so often did, I’ll be glad to, to do that. I actually was chosen If my memory is right, in 1970, but I didn’t begin until 71. And at the time it was apparent to me and to some other faculties but faculty but certainly not all of them that we really had a very serious.
problem of a lack. We are all male faculty and it seemed to be essential that we do something about it. Fortunately at the time, and this didn’t happen later on, which is But at that year we had three vacancies on the faculty, three slots. I’m not sure exactly how many were real vacancies and how many were my negotiating with the dean, which I, with the provost, Lyman, Richard Lyman, which I did at the time that I was going to become dean, we had to have some new faculty.
I did say to the faculty this, I do remember saying we needed to have at least one woman on the faculty and at least one person of color, and I would do my best with the, with the appointments committee to help find those, but we couldn’t make appointments at all unless we satisfied that. criterion. And I also remember there was some faculty concern, aren’t we choosing the best faculty?
Why are we looking at that? But on the whole, there was support and certainly sufficient support that if we found the right faculty members, I was convinced they would get approved. And that’s why I think Barbara was the first, she was an outstanding leader in Washington, D. C. And well known in legal, legal aid circles.
And enormously impressive on any dimension. And then Bill was equally so in his world. It happened in labor law that the only person we had was our associate dean Mann. And he was not as strong a teacher as we wanted to have in that field anyway, a wonderful human being. So it made particular sense to think of Bill, who was already a very able person in the world of labor law.
And just to go on for a minute, as it Felton was and still is terrific. And he helped. designed something that started with Bayless Manning, which was that when, up to then, we had chosen students solely on the basis of doing well on LSAT and well on grades, but we shifted to say that if students of color did well enough to be admitted on either one of those, they would be admitted.
And that was not the only factor, but it was a big factor in helping to enhance the numbers of black and Hispanic students. So my understanding, Tom, is that you said in the prior conversation that you advised the faculty that although you couldn’t choose new faculty members, you could veto. Faculty members and that you made clear, as I recall, is that you advised the faculty that you weren’t going to appoint anybody unless one of them, one of them, the woman, one person of color and Mike again, please correct me if I’m wrong, but that’s what I remember.
And further, I remember that was a A nervy thing to do because if you at the beginning of your tenure deny the faculty something they want to do. That’s not a healthy way to begin. On the other hand, they chose me. I mean, the provost and president appointed me but I wouldn’t have gotten appointed. If the faculty didn’t want that.
And I knew that. So I didn’t think I would get knocked down in my first year. Tom, both you, you and Mike and given where you were coming from at that point, how did you see the support from your colleagues in going about filling two out of three of those positions with a woman and a person of color?
Was this something that, for the most part, People felt was the right thing. Was there any, you know, any kind of controversy about it? Maybe Mike, do you remember anything? I remember a couple of exceptions to this in principle. But Mike, but on the whole, I remember real support. So a couple of things in context.
First of all. I was on leave when Tom became Dean, because as we’ve discussed before, I had come to Stanford with an agreement because I came right out of law school with an agreement that after three years of teaching, I could have a leave of absence and go three years To practice and so I was actually not there in 7071 and 7172.
And I was in fact, back in the District of Columbia, and working with under Barbara Babcock as head of the public defender service and we can get to this in a bit, you know, contacted Tom about Barbara and worked on her interest and on the law school’s interest. The main thing was that for a variety of reasons, were discussed in previous programs.
The law school had made a commitment to diversification at the student body level and had found a recruiting basis. And already by the time Tom was coming, there were substantial increase in numbers of both African American and women in the student body. And there was a general or in the country that diversity was necessary, that civil rights movement was necessary so that was going to occur.
The, It was also the case, I mean, Tom was highly regarded by the faculty and, and, and, you know, people were very pleased when he became Dean after Baylis Manning left. Several things had occurred around that time that also were part of the context. In 1962, there were 12 members of the faculty.
By the time I came in 1967, there were 20. Tom was part of the group that came in between 62 and 67, along with Charlie Myers and a number of other people. So the faculty itself was changing. And a lot of the new faculty would come in had different attitudes about the world and. And the nature of recruitment.
Then then some of the faculty that have been there for a very long time, although there, there were people, like Carl Spa was, I think always committed to a broadening and diversity on the faculty. But there were people that that, that still had different attitudes. It was also the case in that
the faculty, as a general matter, held its prerogatives around, of making appointments very strongly in the faculty and the entire faculty voted on every appointment. There was a faculty appointments committee that made recommendations there. The critical part, the critical part of the team besides Tom own personality and set of values was The dean did appoint the appointments committee and so the the dean had power and Tom pointed people that were going to likely be consistent, you know, all with a set of values and priorities that he brought even you know, is that There was no power within the Dean to make an appointment on.
It was also the case generally throughout my entire career on that although the Dean did not have the power to appoint the faculty in general, although they gave Dean’s a lot of. On an individual basis, faculty members could be very demanding, as Tom could tell you. But, but the general notion was that a, a lot of deference to what the dean wanted to do in appointments because the dean was raising lots of money and building the school up.
And, and, and so on the other hand. There we, because of the, the, the lack of diversity in law schools up until 1970, there was a very, very small pool of women and African Americans and even smaller pool of Hispanics available for appointments. And, and so that was gonna make the issue difficult, that you had to do wide screening.
And there was a general. knew that as I’ve talked about before, Stanford was building to become, wanting to become one of the top law schools in the country. In doing that, there was a lot of consciousness about Continuing a tradition at the very top law schools that there was this enormous bias towards grades in law school, and having gone to Harvard, Yale, or Columbia for your law school thing so that when you’re talking about the pool of people.
Who were available, who went to Harvard, Yale, or Columbia and had very hard grades and the clerkships and the merit badges that the faculty considered at that point, that made an even smaller pool. And the only way you overcame that set of criteria that were present at that point was if you had gone to some other law school, you had to do substantial writing and be, and, and, and be recognized because of your writing.
I think what when, when Tom led the faculty toward saying we want women and and particularly African Americans at that point. Bill Gould was certainly in a group that consisted almost only of Bill Gould and a very small, small number of Black, and he’d written a great deal in the labor area.
He was and in in named journals. He had things in the Yale Journal, Law Journal. So it was a logical movement toward Bill Gould to go there. The pull after Bill Gould was not very great. To go. And that shaped the next couple of years in terms of where you where you were gonna go, as I say, because there were also very small numbers of women graduating and my wife was, you know, a classmate of mine at Yale.
At Yale and Harvard, at Yale. There were eight or nine women a year at Harvard. There might be 15. It was and not all wanted to go into academics or even most didn’t. There were job opportunities there. It meant that the pool was limited. As I say, on the women’s front in two sort of regards the number of the percentage of women went up enormously.
In, in the, the 1970s because of the active recruitment, because of the wanting to replace take into account that mes were being drafted and, and, and sort of to have adequate numbers, although there was an increase among African Americans and then Hispanics, it didn’t nearly match the kind of increase.
As women. So the pool was becoming much bigger and and, and the, and, and the availability was there. And as I say on the women’s front there had been the, the, the, the women and, and even as we’ve talked about. The Blacks and women who had gone to Stanford, Harvard, and Yale were actually quite exceptional people in the, in the 50s and 60s.
It took an exceptional group. Many had done Sally Ann Payton and Vaughn Williams at at Stanford who had been very, very strong undergraduates who became law review people at it, but it was a very small pool that was recruited from the top people. That did mean that there was a pool of people the Ruth Bader Ginsburg’s the Barbara Babcock’s the others that were at Harvard and Yale that met our criteria.
As you say, I knew Barbara from working at the Public Defender Service under her and knowing what Tom’s commitment had recommended her. Even then both Barbara had it and Tom will, you know, go into this as well. I mean, it was not just that you went to Harvard or Yale or Columbia, but it was also that you were at the very top in your ranking class.
There was a belief in the faculty. particularly among some members, that the person who was first was smarter than the person who was second, and second, third, all the way down. The ranking class was a reflection of what you would do and Stanford hired a bunch of faculty members who never wrote even But because they were first in the class or had higher grades than Jerry Gunther when they were there, you know and, and and, and it took the leadership of Tom to, to overcome that kind of mental set that ranking class Just was a reflection that you were going to be a good scholar of good everything as opposed to a good test taker.
So it’d be fair to say then that the reason why Tom, when you became Dean, there were no women, no on the faculty, no no African Americans. a combination mostly of there being such a small pool of possible candidates more than, and to some maybe more limited extent, the, the culture of the faculty as to the standards that they felt were critical for an appointment, like, you know, standing in class or whatever.
Yes, although I wouldn’t underestimate the second part too. Mike brought back to mind a flood of memories of faculty meetings where somebody who I thought was, and Mike thought was just extraordinary. Had very hard time because he hadn’t been on the law review. It happened he had written from an, he was in another university, he had written enormously and extremely well in a field in which he became, when he did come to Stanford, in spite of that, the dominant person in the world.
So it just underscore what Mike said, that was not a trivial dimension of all this. But it is also true there weren’t a great deal, and I left in 1975 to go to the Legal Services Corporation so I didn’t really stay close to it after that. But but Mike is, again, absolutely right. There weren’t many.
To choose from. Barbara and Bill were extraordinary in any, any place without regard to anything except their abilities. So it was, and we knew, of course I knew certainly that I wanted to be sure we chose. Someone who we could expect to get tenure and stay there. Bill came with tenure.
Barbara did not, because that’s my memory, and I frankly thought it was particularly important to have someone who no one could question as a, African American or Hispanic, in this case, an African American. And fortunately we got the best. He struck me immediately when I met him, of course, before all that as a quiet, very competent, very thoughtful.
But I don’t have any other vivid memory of him as except not all that different from the bill goal today, except for a few years, it took somebody like you, Tom, to say, this has to be changed and there were the difficulties of finding the right people, but a lot of deans at that point probably did not have the dedication or perception that you did.
That’s a kind compliment. And I appreciate it very much. And like anything that happens in an institution, but certainly ours, it wasn’t anybody. It wasn’t me. I happen to be in a position to know that if I didn’t approve of appointment the provost would ask me. And it would not be helpful to the potential appointee if I said, well, the majority of the faculty is for this person.
But personally, I have to tell you, I have grave concerns that would kill it. So I wouldn’t. And I wouldn’t want to do that because that would make me have a very difficult time as Leader of the faculty, but in this case, I thought it was worth doing that. And but of course I naturally talked to faculty members ahead of time.
So I knew that there was a very comfortable majority. And I don’t have any reason to believe it wasn’t unanimous. I mean, I really don’t. I just know there were some cautions about why we’re doing why we cared so much as opposed to caring about their grades as Mike just said. alone, which I always thought was as ludicrous as, as Mike does.
That one of the problems in choosing just these bright men and women is, like Mike, is that some of them, at least, and I certainly include myself, have a hard time understanding the problems students have. I can remember starting to teach contracts. And the concepts seem to be pretty easy, straightforward.
Why didn’t you understand this? Well, it took me quite a while to realize it was my job as a teacher to figure out why they didn’t understand it and to do something about it. But I didn’t learn that until a poor set of classes had to go through my tutorial. Can you describe, you know what was it like when you, you know, when you met Bill, when you started working with him?
And you know, we know from talking to many people what an incredible reputation he has, but what, what are your thoughts?
Stanford was actually, in, in some ways, had great strengths and great uniquenesses. That also had some weaknesses in that unlike Harvard and Yale, and particularly Harvard over a period of time, most of the faculty at Stanford Much of my history and during the early part, although there were different ideological positions, most of the people got along with each other and wanted and were willing to make compromises on a range of things.
And in some ways, the ideologies were much more between. People who value practice versus theory for appointments purposes than left, right, or different kinds of ideologies and, and that, I mean, it even went back to the sort of Pearl, but, and earlier times of people who were practice oriented and then I came on without much practice in value of practice Tony Amsterdam versus people who were more theory and there were, and there were efforts of compromising and valuing.
It was also as Tom’s just said, although you needed either 66 or 75 percent of the faculty to make an appointment and ultimately to make a promotion to tenure. The faculty tended to do things unanimously. It was a faculty that also, there was a lot of social life and people had dinners together. For a very long time.
John, when it was smaller, John Kaplan, had organized lunches for everybody and ordered your meals in advance and you just went out to lunch before the faculty club and ate what John Kaplan liked. And and because of that sort of attitude, the key part of appointments really came by the dean and the appointments committee doing a lot of walking the halls and talking to people individually about Prospects and and where things should go and and building it in that sort of way.
So things, by the time things got to a vote, the work had been done in the hallways, in the individual offices and and that made it very critical to have a dean who was open to doing that kind of work in the offices which Tom did, and I think that on the flip side of that is once people came, everybody was expected, they were doing their work, and Sometimes they worked in small groups together, but there was a lot of individualism on work there.
I mean, there have been people like Charlie Myers and Howard Williams who work closely together and come for that purpose. But so then when Bill came, he came into a faculty. of a lot of people individually who respected other people and were prepared to work with them. And he became an important member of that.
It was he was incorporated as part of the culture of what was the institution. The people who’ve had trouble All through the institution at some degree is if you expected special recognition people on the faculty tended to think they each were stars.
I don’t think we were unique in those days or now. Mike. It was 12 years before another. Faculty member of color was appointed after you know, after Bill, was that solely just the question of the pool that you were talking about before or just random or you think there are any reasons that that was the case?
I, I think the pool remains small during that period, even though there was a substantial increase in numbers. And of course, before, before Chuck Lawrence Miguel Mendez was added so there was another appointment of a person of color. It was not another African American there. Again, going back to what I’ve previously said, We didn’t dramatically change the notion that Most of our people were going to come from four or five law schools, or even one, two, or three law schools, if that was an important factor.
And and all of the law schools in the country were competing for the small group of people that were available. It was also the case that during the period of time, when I, when I started at Stanford, In 1967, my starting salary was $11,000. The starting salary at Wall Street that year was $9,000.
I was the highest paid person coming out of my class. The next year, wall Street went to $15,000 and the gap just kept on going up. bigger and bigger all of the time. One of the things that Tom and other deans had to deal with is now people were being offered substantial salaries in law firms and other alternatives if you were a high ranking minority at Harvard, Yale, Stanford, or whatever.
So the competition was an issue. For many African Americans particularly coming to the West Coast was a big step. I mean, Stanford and California were a different world from most African Americans had grown up in the East or the South and if an offer was there from Harvard or Yale or Columbia that would be a very hard competitive Sell at this point as it was often with students as well that for African American students, it was easier with Hispanics because of a Western structure.
So I think we weren’t going to change the criteria, which were Either grades or writing and it just took a while to the pool built up. So Mike, you, I know you were instrumental in Barbara Bailcox being hired. When, when, when you met her, were you conscious about the fact that she ought to join Stanford Law School because she was a woman?
How important was that in your decision or desire to encourage her to come to the school? I encouraged her to come to the school because she was a great lawyer a great leader of the Public Defender Service and I, it was clear from the beginning she would be a great teacher. She was teaching me and everybody else at the Public Defender Service how to be lawyers and how to do things.
We certainly did. I, I wanted the faculty to be diverse in terms of women. But Barbara had been to on law review. She had clerked on the DC circuit. She was head of a, a major organization. She brought a public interest background. I was interested in clinical stuff and more people were, we had brought in Tony Amsterdam, so Barbara filled.
All kinds of pieces that we, that we wanted. Even then, as Tom said, some people had to be persuaded because she wasn’t first in the class. You know, she was seventh. That meant six smarter people in the world. But, but the big effort was I had to spend a lot of time convincing her she wanted to teach.
And she was, she was head of the most widely regarded public defender service in the country. So was there a connection between the hiring of Bill and the hiring of Barbara? Were they coordinated in some way or it was not a tandem that right on it said, you know, we were looking for both women and racial minorities and an effort to get both them.
Well, we made pretty sure they wouldn’t get appointed to the committee though. I mean, to the full faculty. Yeah, right. It is worth also finishing playing a part of the challenge as I think Mike alluded to you guys would have been admitted to Stanford Law School no matter what. But back then, it was much more of a regional law school.
in the 60s and early 70s than it is today. That’s because of a lot of work, a lot of people that became not just a national law school, but one of the handful of top law schools, but it’s it was seen and properly. So in my view, as it’s not the very best till Mike came. The question I have is, of course, that affirmative action now has become politically a real football.
And Tom, have you thought about, or Mike, that what you did back then in saying that you had the faculty needed to hire a woman and a person of color? Is that doing something like that now would probably create a tremendous amount of controversy and may well be illegal, especially after the Supreme Court makes its decision.
Oh, I’ve thought a lot about that. And I’m afraid the Supreme Court is going to do turn the 14th amendment on its head and. do exactly the opposite from what it was intended. And yeah, I believed in, strongly in affirmative action then. I still do. And I think what our courts are doing is really shackling our societies.
In important ways, I underscore strongly. Yes, I’ve thought a lot about that. And I think it’s a sad commentary. It’s true. Yes, we have at least as many women on the student body as men. And we’ve had three deans in a row, I think, who are law school deans who are women. But we haven’t done as well as I would like there’s still significant bias against women, but even more so for very terrific people of color.
And that’s a great stain on our society. You must be very proud, though, that you were the one and I know that you’re being humble about this, but you were the one that was the catalyst and and getting this done and figuring out the strategy. Was that something that you came up with within your own about the fact that.
That they needed to hire a woman and a person of color, that they weren’t going to be able to hire anybody? Oh no, I mean, obviously I talked to faculty and said, this is what I strongly believed, and there were a number there who I knew would agree, and we did. We talked to other faculty. And it was a big advantage for that was my first year.
Faculty wasn’t going to say no to that. I also take it at the same time you felt that both Bill and Barbara were as qualified as. You know, as anybody could be for the positions that they came in. Absolutely. So, dangerous ground here but I would say, more qualified than some of Mike’s and my colleagues.
We won’t, we won’t ask you for names. The Supreme Court may unfortunately rule on the affirmative action that will have an impact on admission. of students it will not have an admission of it will not have the same sort of impact, at least legally on the hiring of faculty, since faculty are hired without clear criteria.
That would enable you to say somebody scored, you know, 20 points lower on the LSAT or have a 3. 3 grade point average instead of a 3. 4 grade point average, you know, because the faculty hiring is this notion of it isn’t good writing. Are they going to be a scholar kinds of predictions and different and different ideologies about what is good writing?
What kind of fields do you need and stuff? It’d be, I think, a lot more difficult to, to Yeah, a legal case on on the hiring basis of faculty as Tom was just alluding to, I mean, you know, the faculty is made up of 40 people, each with their own set of criteria in their heads of what makes a good scholar and what makes it a new group and the key thing.
for a dean and for a committee chair and others is to bring together those set of things. Obviously there’s a lot of overlap with things, but there’s a lot of difference of views what the scholarly world’s about. It is different though. I could not say a dean would have a hard time saying today even to the faculty because it would certainly get out that we’re have to hire a black or Hispanic if we’re going to hire anybody.
Yes. Can’t do that anymore. Unfortunately. If I could ask one final question for me. Is it so. What’s the importance of having a diverse. Students are going to go out in the world, students are going to go out in the world, in a diverse world, with diverse societies, and they better understand perspectives not that every white person has a perspective that’s the same, but they better understand a range of perspectives, and race is one of the key parts, not the only one.
Both on the, on the, Faculty level with what kinds of ideas, what kind of research, what kind of information to be generated, having diversity of views and people doing diverse kinds of scholarships, and the fact that people are teaching students. Who come in learning in different ways with different kind of backgrounds, trying to relate to them, and that we all have clients who bring different things to us.
It’s just, if you don’t have a faculty and lawyers who are able to serve a very wide set of populations who bring different backgrounds, they’re not going to be good professionals.
​