an article by Alvin Dorfman and Heather Cottin
First published in Jewish Currents – April, 1996
In addition to the usual papers submitted in any lawsuit, I prepared a brief entitled “Media and Organizational Response” in which we argued that important members and constituencies of the community were supportive of the black community in this lawsuit, including all of the local clergy, the New York and Long Island daily newspapers, the local radio stations, the teachers’ unions, and the American Jewish Congress. An amicus brief from the American Jewish Congress would, we hoped, call attention to the fact that the head of the Board of Regents (in effect the immediate superior of the Commissioner of Education) was a prominent member of the AJC.
It was very difficult to figure out the school district’s position. On the one hand they were opposed to our application but, on the other hand, they made the same arguments we did, calling upon the Commissioner to support our request for the funding of intra-district busing as an “ordinary contingent expense.” Obviously the district was trying to appease its constituents while at the same time conceding that our arguments were correct.
The attorney for the school district was the former lawyer for the Commissioner of Education and had worked for the Education Commission for a number of years, having only left that office a few weeks before. His representation of the school district in this matter therefore seemed a clear conflict of interest. The attorney for the N.A.A.C.P., after consulting with me, requested his recusal but I don’t believe any action was taken on that request. But, in general, relations with the N.A.A.C.P. were not so amicable. The March 1978 issue of their Rockville Centre/Lakeview branch published a lead article asserting that they were pursuing legal action against the Malverne School District and that certain concerned citizens (my clients) were also pursuing legal action. In this article the N.A.A.C.P. claimed that they had tried to get along “amiably” with my clients but that we had never contacted their attorney or responded to any communications from their organization so that, because of our “aggravating” behavior, they had decided to go it alone. Not a word of this was true but the branch president of the N.A.A.C.P. refused to make a move to disavow this article without the consent of the Chairperson, and she was uncooperative.
A few months after the initial papers were filed, members of the community and I attended a hearing in Albany before the Commissioner. As we set off by bus, the ten or so clergy—white, black, Jew, and Gentile—who stood by the bus, prayed for the success of our effort. I was so moved I almost cried. I must say that in all the human rights struggles I have participated, I have never witnessed such camaraderie and love.
In Albany we met with our local State Senator, asking for his support of our application. He took me off to the side and said words to the effect, “Alvin, you know I can’t do such a thing; it’s very controversial.” And when the Commissioner granted our application, ordering the school district to pay for busing all students living more than eight tenths of a mile from school, (calling it “an ordinary contingent expense”), He introduced legislation calling for the State to pick up the “transportation tab” for the integration of the school district, thereby making himself the hero of the white community. Obviously, he had no shame. If he had proposed this legislation in the first place the whole proceeding and controversy could have been avoided.
The community held a victory celebration and about four hundred people attended a wonderful dinner at the Freeport Yacht Club. My wife shared in my happiness, having also sacrificed for the cause, since I had put in hundreds and hundreds of hours on the case. Very few lawsuits that I handled seemed to work out so perfectly and to bring as much joy as this one. Representing the Lakeview Community was a two-way street. I believe I gave them zealous representation and, in turn, I had the wonderful feeling of having done an effective and devoted job.
I discovered that the New York State Chairperson of the N.A.A.C.P. was concerned that I might be taking some of the “glory” away from her organization so I called her to try to allay her fears. However, it didn’t take long for me to realize that her motives were not the same as mine; she was only concerned with how it would “look” if the Civil Liberties Union rather than the N.A.A.C.P. brought the action. I told her this wouldn’t be a problem, that I would be willing to handle the case in the name of the N.A.A.C.P. and the Civil Liberties Union. This didn’t seem to make things better and she told me she would think about my proposal. I told her that I was planning to file my papers the following Monday.
She had her lawyers work fast and they filed papers on the Friday before my scheduled filing. She was hoping to get the publicity out of this case at the expense of the Civil Liberties Union but, despite her best efforts, it didn’t work out that way. The N.A.A.C.P. papers were abysmal. They misstated the facts of the case and sought relief that made no sense. The attorney for the N.A.A.C.P. was quite bright but he wasn’t given adequate time to put together a decent set of papers. Had the NYS Commissioner of Education taken these papers seriously, they would have undermined the position of the black residents of the Malverne School District. But, as it turned out, the papers were so bad that the Commissioner decided to disregard the submission from the N.A.A.C.P. entirely. As a practical matter, their lawyer became completely dependent upon me to “lead the charge.”
Our initiating petition set forth the history of the school district and the racism of the white community in discontinuing the busing for the Lakeview students which, we argued, was part of the larger agreed-upon plan for racial integration. We claimed the black students suffered great hardships, having, for example, to cross wide avenues on their way to school, to walk across the Long Island Railroad tracks, and to walk in all kinds of inclement weather. The kids often arrived at school half frozen or wet and sometimes had to miss school altogether. At times they were dependent on getting to school by a private bus which wasn’t a bus at all but only a van in which up to twenty kids were crammed. Moreover, neither of the two elementary schools served lunch and there was no time for the black students to go back and forth to their homes for lunch. As a result, we claimed, by placing this intolerable burden of integration exclusively on the black community it was acting in an unacceptable, immoral, unlawful, and unconstitutional manner and was denying the black children the best of educational opportunities and the opportunity to develop to their full potential. In essence, their actions constituted a denial of equal educational opportunities.
It took a long time to figure out what relief we were actually going to ask for. Clearly, we would ask that the district be required to fund busing just the way the State did from 1967 to 1971. We called on the Commissioner of Education to find that the requested transportation constituted an “ordinary contingent expense” within the meaning of Section 202.3 of the Education law which would, in effect, require the district to provide the busing at the expense of the taxpayers of the district. We also decided to “scare the pants off” the larger white community.
If the Commissioner did not think he could force the local taxpayers to pay for the reinstitution of the original busing plan, we requested that the original Princeton Plan (as recommended by the Commissioner in 1963) to be reinstituted, i.e. that the Lakeview School be reopened and that the kids in the entire school district therefore attend all three schools. There was no doubt in our minds that this was the last thing in the world that the larger white community wanted. Alternately, we suggested they remedy the situation by reopening the Lakeview School and closing one of the two other schools so that the white kids would be “bussed into” the black neighborhood. We were sure the white community wouldn’t like that either.
I became deeply involved in the Malverne School Busing Case after receiving a telephone call from the Executive Director of the Nassau Chapter of the New York Civil Liberties Union. A group of residents of the Malverne School District (officially known as the Union Free School District #12 of the Town of Hempstead) had been to her office to complain about the lack of school busing for the essentially black community of Lakeview which was part of the Malverne School District. Though she had advised them that the law was far from clear and that there was a good chance they would lose any legal proceeding they brought, they were still willing to take their chances. She called me because I had some familiarity with the matter since, at the request of the American Jewish Congress, I had previously prepared an amicus brief on behalf of a number of local clergy who had supported the original concept of integrating the Malverne School District. In addition, I was the head of the Long Island Coordinating Committee for Civil Rights and, in that capacity, had worked in the Malverne District with local people supporting integration and with an organization called UCAN (United Committee for Action Now).
The legal history of the school district and the underlying facts in the case were quite complex. The Malverne School District consisted of three elementary schools, one in northern Lynbrook, one in the Village of Malverne itself, and one in the unincorporated area of Lakeview, the only area of the three which was not lily white but, in fact, almost entirely black. In 1963 NYS Education Commissioner James Allen had ordered the District to institute the “Princeton Plan” which divided the three schools into different grade levels in order to force integration. But because the parents from north Lynbrook and the Village of Malverne did not want their children to attend the Lakeview school (in the black neighborhood), they took the matter all the way to the United States Supreme Court. The court, however, upheld Allen’s order.
As a result, in 1967 a compromise was reached which closed the Lakeview school but provided busing to all students who lived six tenths of a mile or more away from school. The black community agreed to this compromise, agreeing to suffer the exclusive burden of racial integration as a magnanimous act of social and civic responsibility to avoid the continuing tumult, essentially in order to “keep the peace.” But despite the fact that the intra-district busing was an essential ingredient of this amended integration plan, in 1971 the State of New York withdrew assistance for transportation in the district; the district taxpayers followed by rejecting any payment for the busing even though the cost to the individual taxpayer would have amounted to no more than about thirteen dollars per year. In response the federal government proposed abandoning the three-school plan and paying for the building of a large elementary school, to be provided free of charge but in a referendum the local residents voted this down. The local community went on to vote down budgets or resolutions calling for the resumption of district-supported transportation another nine times.
In now pursuing a lawsuit against the Malverne School District, we would have to argue that the intra-district busing had been part of an integration agreement and order and, as a result, the busing was required, whether the community liked it or not. I met with the group and we decided to give the case our best shot even though victory was not at all certain. I was to be a cooperating attorney with the Nassau Chapter of the New York Civil Liberties Union and it goes without saying that this was a pro bono case. The group bringing the suit consisted of about twenty residents (if I remember correctly, seventeen were black and three were white) with whom I would meet every ten days or so. These clients were absolutely unusual. They got along without any arguments, seemed to like each other (and even me!), and everybody pitched in to help.
In late July of 1967 I received a telephone call from Denison Ray, an attorney practicing Civil Rights Law in Mississippi, asking for my help in one of his cases. He was head of the Jackson Mississippi office of The Lawyers’ Committee for Civil Rights Under Law but he was also a resident of Baldwin, Long Island. He had been retained by Maurice McNeill, an African-American school teacher in Baldwin, who was being accused of molesting a female student. He was being charged with conduct unbecoming a teacher and with immoral character. Though Ray had been retained by McNeill, his work in Mississippi prevented him from preparing the case for an imminent administrative hearing so he was asking me to do the preparatory work and to conduct at least part of the hearing on behalf of McNeill. Ray was doing the work pro bono and imagined I would have to do so as well. He said he knew McNeill and had confidence in his innocence.
I met with Maurice McNeill in my office and we went over the matter. He was 35 years old, had taught biology in Baldwin High School since 1959 with absolutely positive recommendations and references. He and his wife, who taught English in the Uniondale School District, had both originally come from North Carolina. They had a son and daughter who were attending the Baldwin Schools. Mr. McNeill had been accused of molesting a female student in his biology class, by touching her on the legs, knees, and breasts, and by embracing and kissing her. Susan, about 16 years of age, was a fairly good-looking, not particularly developed, bleach blond with a good academic background. Before getting a C+ from Mr. McNeill, she had never received less than a B. On August 9, 1967, the School Board issued charges against McNeill: immoral character and conduct unbecoming of a teacher.
The statement of charges was signed by the Superintendant of the Baldwin schools. He seemed to fit a phrase I’d once heard, as having a “silver fork up his ass.” He appeared to be a rigid guy who would always do what was expected of him and never anything controversial in his life. Ironically, soon after this whole McNeill matter, he left his wife and ran off with one of the subordinate clerical women working for him. It just goes to show you can never be sure about anybody.
Today the statutes on the procedures for disciplining a tenured teacher are set forth in great detail but at the time no procedures were in place at all. Who was to be the prosecutor? How was he to be selected? If the district used its general counsel as its prosecutor, could he continue giving so-called “neutral” advice to the board? Who was to judge the case? There was no end to the questions. And, keep in mind, this was not a criminal prosecution but only an administrative process to see whether any disciplinary action was appropriate.
The Baldwin School Board attorney played the role of prosecutor even before the charges were drawn up and he was absolutely partisan. In typical racist fashion, he told McNeill that if he resigned quietly, they would give him letters of recommendation and help him get another job. It was even suggested that Mr. McNeill get a job in the predominantly black Amityville School District where he might feel “more comfortable.” When McNeill had contacted the lawyer who had represented him when he had bought his house, that lawyer also recommended he resign and go to a predominantly black school district.
I tried to learn as much about the School Board as I could. One of the members of the board’s husband worked for CBS and she was most concerned that there be as little adverse publicity as possible so she went out of her way to try to prevent CBS and other media from covering the story. The Vice President of the School Board was generally viewed as a right-wing extremist so we worried that in a case with a white complainant and a black respondent he would automatically believe in the guilt of the black person. As it turned out, in fact, he wound up being the only one on the Board who voted for the guilt of my client. Another member of the Board was a psychology professor from Brooklyn College, Dr. Hamburg, who, though born and raised Jewish, was a member of the Ethical Culture Society. He played a most interesting role in eventually disposing of this matter. I was in constant touch with Denny Ray, who, contrary to what others had said about how difficult he was to work with, I found brilliant and very thorough, albeit highly competitive. He was very devoted to this client and I believe Mr. McNeill made a good judgment in retaining him; I’d like to think Ray made an equally good judgment in making me his co-counsel.
McNeill took this case to heart. He was losing a lot of weight but despite his almost uncontrolled anxiety he stood up for his defense and was just a wonderful client to represent. One of the most beautiful aspects of this case was the response of the student body which rallied en masse in support of their teacher. They saw him as a caring, helpful, devoted teacher and with the students’ support, the parents and the faculty followed. More than a hundred statements were taken from community members, students, faculty, and others, attesting to their positive experiences with Mr. McNeill and their feeling that there was no way he could be guilty of these charges. But on the other side was a small minority out for blood. These people, John Birch types, teamed up with the local newspaper, The South Shore Reporter, and they even went after my wife. Now, there’s no one less threatening than Chelly. She has her firm points of view but, far from intimidating, she is always pleasant and understanding. At the time she wore a pair of glasses with white frames and these Birch-type bastards referred to her as “the witch with white glasses.” Their hostility toward her made about as much sense as their hostility toward McNeill because he was black.
Our investigation revealed that the complainant was obsessed with McNeill. Although she testified that she had no adverse feelings towards him before this incident, we had witnesses who said she had hated him, that when he had once touched her shoulder (before the incident at issue here), she had been revulsed by him. McNeill had a reputation for touching many people’s shoulders; he was a “touchy, feely” sort of guy and no one thought the worse of it or had ever told him not to do so. It was just the way he was. Many students gave us statements about the complainant’s reputation or what they knew about her. They said she was a “hood” and hung around with “the hoods.” They said she was “loose” and “easy.” There was even talk about her having sex in the balcony of the Grand Avenue movie theater in Baldwin. On the other hand, we felt she had been a good student. However, we felt that because of her racist feelings and the racist environment, she had concocted the “cock and bull” story of the alleged molestation.
There was so much intense interest in this case that the hearing had to be moved from a lecture room to the Baldwin High School auditorium. It was in our client’s interest to have his hearing as open as possible and, in fact, it became the thing to do to attend the McNeill hearing. People would ask me to help them get in, sometimes asking me to claim they were on the McNeill defense staff. I felt like I was in charge of ticket distribution for the best play on Broadway. In conducting the hearing, the Board didn’t really know what it was doing and some of the advice it received seemed simply goofy. They had selected a lawyer by the name of Lowe to be the “impartial” advisor to the Board as well as a prosecutor. He was head of the Republican Party of Baldwin and although he specialized in criminal law, I believe he seldom tried a case. Most of the local judges were Republican and this didn’t hurt him in his practice. We were very lucky he was selected as the prosecutor because I don’t think he did much preparation and basically tried to “wing it.” Ultimately, this wound up being his big mistake. Susan retained her own lawyer, a long-time lawyer in Nassau County with his office on Sunrise Highway in Lynbrook. Though I had seen him around the courtrooms occasionally, I knew very little about him. I don’t think he was even a criminal lawyer.
Under the civil standard of a preponderance of the evidence, the burden was on the prosecutor to prove the complainant’s case; this is distinct from the burden in a criminal case where the case must be proved beyond a reasonable doubt. Thus, there was a much lesser burden of proof for the administrative prosecution. Moreover, if McNeill was acquitted in this procedure, he could still be subject to criminal prosecution. I found it odd, both personally and professionally, that an untutored board was proceeding against my client in a matter that one would expect to be handled in the criminal courts. If McNeill did what the complainant claimed, then it should have been prosecuted as a sexual offense in the Nassau County District Court. What could the attorney for the School Board have been thinking when he didn’t steer the complainant in that direction? Or did he in fact do that and then find that the District Attorney wouldn’t take the case? If it had been referred to the DA, that would have gotten the Board off the hook and whatever publicity there was wouldn’t have involved the School Board. None of these questions were ever answered nor would they be resolved.
At the time this case was being processed, the movie “To Sir With Love” was in the theaters. Sidney Poitier played a black schoolteacher in England and the film was about his relationship with his students and how they felt about him, including sexually. The complainant said she never saw the film but one of her closest friends, Stephanie, said they saw the movie together. My client was a very attractive man and we began to believe that the complainant was having sexual feelings about McNeill, feelings McNeill was unaware of. Imagine being attracted to someone and at the same time hating him because of a bad grade and because of the color of his skin.
One particular witness in this case proved pivotal. Glenn, a fellow student at Baldwin High School, testified for the prosecution. He stated that on the day in question he saw Susan on the school grounds crying and when he’d asked her why she was crying, she had recounted the tale about McNeill essentially molesting her in the school. Glenn claimed he walked Susan home and had every reason to believe she was telling the truth. If her attorney had done his homework, he would have been reticent to use this witness. It seems to me that one of the first questions to ask a potential witness is whether he gave anyone a statement, written or otherwise. But he seemed to be just going through the motions and obviously didn’t know that Glenn had given me a statement, a statement contradicting what he had just testified to.
I asked Glenn if he remembered me, and he said yes. I asked him if he had been told that I was Mr. McNeill’s lawyer, and he said yes. I asked him if in his statement to me he had intended to deceive me or whether he was telling the truth, and he said he told the truth. As my questioning and his testimony made clear, in that statement he had said that Susan had only told him that McNeill grabbed her and that she pushed him away and walked out. He said he walked Susan to the corner by which time she had stopped crying and that she had never added or said anything more about what McNeill had allegedly done to her. He also had said that Susan worried a lot about her grades and that he knew McNeill to be a good guy and couldn’t believe he would do any of the things he was being charged with. He had also directly said, “I don’t believe Susan’s story. I believe that Mr. McNeill is incapable of doing what she says.”
In his testimony, he said that Susan was never his girlfriend. However in his statement that he gave us, he said that she been his girlfriend in this past. This statement proved to be a bombshell, showing that Glenn had been lying on the witness stand in order to help Susan. The prosecution’s witnesses were gradually falling apart. When Glenn’s testimony was over, there was silence in the auditorium. Then Glenn looked at me angrily and put the forearm of his left arm in the middle of his right arm and bent his right arm upwards. We all know that means, “fuck you.” Inwardly laughing, I made believe I was aghast and told the Board that this was just awful. As if that wasn’t enough, the attorney for the complainant, who was sitting in the auditorium, got up and screamed, “fuck you, Dorfman.” For a minute I thought I was in an insane asylum.
Finally, after a few hearings, it was our turn to put on our case, if we wished to put on a case. Keep in mind that we had in excess of a hundred witnesses champing at the bit to testify, including a psychiatrist who had examined my client and given us a statement saying that he believed Mr. McNeill incapable of doing what he was charged with. In addition, we had retained the services of a prominent lie detector specialist who had found that in denying the charges my client had been telling the truth. The Board had been told that we had witnesses that were going to say all sorts of terrible things about the character and sexual activities of the complainant. So many witnesses were willing to testify about the “loose” behavior of the complainant that I began feeling bad about it. Even if all this was true about her, it was nobody’s business. However, she had opened this Pandora’s box by bringing these false charges against Mr. McNeill.
We put on a number of witnesses and things were going well; if I were the prosecutor I would have been shell-shocked. His case was going down the tubes and we were only beginning. Suddenly, out of nowhere, Professor Hamburg (from the Board) came over to me and said, quietly, “ginig,” “enough” in Yiddish. The implication was that we had already won our case and it was unnecessary to destroy the claimant, a young person with her whole life to live.
I went over to my client and told him what Hamburg had said. Mr. McNeill asked me what he should do and I said that there really was no clear answer; it was his choice. If we stopped then and there, we would probably win, but one could never be sure. I didn’t know much about Hamburg and didn’t know if we could take him at face value. Was he speaking only for himself or, acting in good faith, was he speaking for a majority of the School Board? McNeill weighed all the factors: proceed and “destroy” the complainant or have some degree of pity, stop right then and there, and take our chances? Denny Ray agreed that it was a decision only the client could make. Mr. McNeill decided to call a halt to the procedure.
Luckily, his “call” was a good one. On the charge of conduct unbecoming a teacher, the Board voting unanimously to acquit. On the charge of immoral character, the Board’s vote was four to one to acquit. The only dissent came from the Vice President of the Board who seemed to identify with the small group of John Birchers rallying for the prosecution only because the complainant was white and the respondent was black. I can’t tell you how joyous everybody was; the atmosphere was festive. Covered by the world media, the case was reported in the German Der Spiegel and the Jerusalem Post. It was on the front page in The Ladies Home Journal and on television all over the country. It had been an ongoing saga in the Long Island Press, Newsday, and The New York Times. The teacher’s union and the National Education Association affiliate even competed in taking some of the credit for the strong defense of this falsely-accused teacher: although we were handling this matter pro bono, they insisted on paying us. I don’t remember the details but I think I took just enough money to cover my disbursements, a paltry sum. I would be surprised if I was paid more than $250 in this matter.
Interestingly, when I had first approached the leaders of black organizations for their support at the beginning of this case, they had hesitated. Mr. McNeill led a very “white” life: his kids went to white schools (Baldwin was essentially a lily-white community at the time); he liked to play golf and tennis; he owned a modest vacation house. Black leaders didn’t want to identify with a black person who they felt acted too “white.” I argued that his way of life was his business and not theirs and that the issue was bigger than him. He was another example of a black man singled out for wrongful and vicious treatment because of his race. Because of my arguments and because of my standing within the civil rights community, the movement did come to his defense and proved quite helpful.
Though Mr. McNeill went back to teaching at Baldwin High School, he felt he couldn’t stay there for the rest of his career because he couldn’t forget what had happened to him. He went on to become a principal in the Amityville School District and then in Roosevelt High School. He went back to school and got his doctorate in education; I believe his last job was as a superintendent of schools in Queens, New York.
I considered the McNeills dear friends and, although we didn’t keep in regular contact, I knew that they would be there for me if I ever needed them and vice versa. Maurice has since died but I will never forget the McNeill case and the community support expressed at the time. Neighbors were constantly bringing prepared meals to the McNeill home so they could concentrate on the proceedings. When people are kind to each other, everyone benefits. Years later when I was going through difficult times, memories of such experiences as that with the McNeills gave me a lot of strength and feelings of fulfillment.
Denny Ray worked with the Civil Rights movement for quite some time but we did not keep in contact. He eventually came back to New York and I believe was with some law services type of firm that did pro bono legal work for indigent persons in civil matters. He must have made a good name for himself because the New York State Bar Association gives out an annual award in his memory. He was a fine person as well as a fine attorney. My client was well-served by him as I hope he was well-served by me.
When my kids attended the schools in the Baldwin School District the teachers would whisper that they were the children of one of the lawyers for Maurice McNeill. And when one of my daughters refused to stand for the pledge of allegiance, she was not forced to do so, perhaps because they knew that, given who her father was, they would be looking for trouble. In any event, I think my involvement with the McNeill case made my kids feel special. All the kids in the Baldwin schools at the time knew about the case, as did the teachers. The administration, of course, will never forget.
The next speaker was Rev. Williams and he gave the pitch, a fire and brimstone speech. It was quite effective and the money seemed to be pouring in. I was the next speaker, introduced as a Jewish lawyer from New York. The fact that I was Jewish seemed to mean a lot to the congregation, perhaps because of our connection to the Old Testament. In any event, if nothing else, Jesus was Jewish. Though, as an aside, I must recall that I once told my office manager that Jesus was Jewish and she glared at me, said that he was not and I shouldn’t kid around about that. In any event, I delivered a more legalistic talk and, though I don’t remember what I actually said, it was well-received and I enjoyed every second of it.
Dr. King was a lovely human being, a brilliant orator and a really nice guy, what we in Brooklyn call a “mensch.” I had met him even before I went down to Florida because he had come out to Long Island to speak at one of the civil rights movement meetings I attended. When I was in St. Augustine I was very cognizant of the possibility of violence. I only felt safe within the black community and I slept in a black person’s house instead of renting a room in a hotel or motel. I also wouldn’t drive an automobile because I didn’t want to give the local police any opportunity to charge me falsely or arrest me. In contrast, Dr. King walked around without any security that I was aware of. I told him I thought that he was taking too many chances but he said he felt otherwise, that hopefully God was protecting him.
I always felt that danger was near at hand. I recall a college kid from southern California who was a civil rights volunteer in St. Augustine. He was a tall, blonde, good-looking kid who had an attachment to a black undergraduate and they would walk around holding hands. If some of the local whites had seen the couple, there’s no telling what they would have done so I went over to the two and told them they were courting danger and urged them not to display their affection in public. They realized I was right and, for whatever it was worth, they stopped holding hands.
Dr. Hayling left town just before Dr. King arrived. Although he was the head of the local chapter of the SCLC, Dr. Hayling did not believe in non-violence. He felt that if violence was perpetrated against someone, that person had the right to respond in kind. Dr. Hayling was a very unusual person. During his undergraduate days at the University of Michigan he had been a football player and he continued at Michigan for dental school before returning to St. Augustine. Unlike most black people, who belonged to traditional churches like Baptist, Methodist, A.M.E. Zion, and so on, he belonged to the Unitarian Congregation Church in Jacksonville, a liberal, non-dogmatic church.
I particularly recall one incident Dr. Hayling recounted. He was driving his car north on US-1 when he saw a burning cross which he assumed meant that a Klan meeting was taking place. He stopped his car to watch. Moments later a white couple came by and the man pulled Dr. Hayling’s car door open and put a knife to his throat. Amazingly, this man was one of Dr. Hayling’s patients, as was his wife. She was demanding that her husband cut Dr. Hayling’s throat but her husband seemed scared to do it. She kept yelling, “Cut his throat” and eventually he did exactly that. It sounds almost unbelievable: here are two white patients of a black dentist who had had every opportunity to choose a white dentist, but had chosen this black dentist—and they almost killed him.
Dr. Hayling went to a local hospital for his lacerated throat. He was admitted and survived without any aftereffects except for a disfiguring scar. In the hospital Dr. Hayling was confined to a “black only” ward and, so that the whole incident wouldn’t be a total failure, he retained the LCDC lawyers to bring a lawsuit requiring that hospital to accommodate its black patients on a non-discriminatory basis. The lawsuit was successful and the hospital was forced to change its racist policies.
In order to practice in the Northern District of Florida, which included St. Augustine, I had to be sworn in by the Chief Judge of the Federal Court, which was located in Jacksonville. After he swore me in, the judge looked at the local lawyers in the court and admonished them with words to the effect that it was a shame that they needed lawyers from out of state to do the work that they, the local lawyers, should be doing, that is, enforcing the applicable laws and the Constitution of the United States. Those cowardly local lawyers looked embarrassed.
The Chief Judge, Brian Simpson, had been, I was told, just another local lawyer but as he aged he came to realize that racism was mean-spirited and downright wrong and, despite his background and the fact that he was a neighbor to all these local people who lived and swore by racism, he turned his back on his past and became a strong proponent of civil rights. He not only rendered decisions in favor of the applications made by the civil rights lawyers, he even helped those lawyers do their jobs. For instance, I was in the hall one day and he stopped and told me that the lawyers who had just completed their two-week assignments there and had won their civil rights case, had failed to submit the order necessary to enforce the decision of the court. I told the judge that the problem was that I (presumably like the lawyers who preceded me) was having trouble getting a competent secretary who could prepare the appropriate order. The judge then provided us with the use of his own secretary and the order was prepared forthwith.
As I said, there were one thousand criminal cases pending in the local state court in St. Augustine. We had most of them “removed” to the Federal District Court in Jacksonville so that they could be assigned to Judge Simpson. We found this removal proceeding in a statute that had been written following the Civil War but had almost never been used before. This worked out as a great tool because really there was no chance to get a fair shake in the St. Augustine court where the presiding judge made no attempt to hide his prejudice and his antipathy towards us. So one of our main jobs was to bring more removal proceedings so that no criminal civil rights case would be left in that court.
Over the years I wondered whatever happened to those one thousand or so criminal cases that were removed to Federal Court and were supposed to be resolved in that court either through trial or through some agreed-upon settlement or plea bargain. The last time I saw those cases they were sitting in several big boxes on the floor of Judge Simpson’s chambers. I suspect he never took a look at them and over the years they simply died of old age. It is not supposed to work that way but it was a very sensible outcome. A few years ago I read of the death of Judge Simpson. Because of his commitment to human rights he was socially ostracized in his community; other members of his country club would have nothing to do with him. I hope he felt confident that he was doing the right thing; he was extraordinarily courageous.
The brother-in-law of the St. Augustine judge was a bail bondsman. Since the judge didn’t release any of the defendants without bail, that bondsman was making a fortune and I’m sure that’s what the judge had in mind. I couldn’t do anything that approached the practice of law in his court because, unlike Judge Simpson, this local judge was not going to give civil rights lawyers permission to practice before him. But I could go to the local court to file papers. One day when I was doing that he accused me of practicing law without a license. I told him that I was only acting in the capacity of a clerk and he backed down. I am sure if he could have pinned it on me and the other civil rights attorneys, he would have declared that we were practicing law in Florida without a license and have tried to jail us. It would have looked terrible if we were held in contempt or put in jail because of the negative media coverage this would have generated.
1964 was the year of the “Mississippi Summer.” The civil rights movement was making its strongest challenge yet to the practices of Jim Crow in the south. Upwards of a thousand young people went to Mississippi to attempt to register black voters and help organize the black community. This effort spread throughout the south. Various civil rights groups got together and agreed that the movement needed a large number of lawyers throughout the south and formed the Lawyers’ Constitutional Defense Committee. (LCDC) Participating organizations included the NAACP, the Congress of Racial Equality (CORE), the Student Nonviolent Coordinating Committee (SNCC), the Southern Christian Leadership Conference (SCLC), the American Jewish Congress, the American Jewish Committee, and a few other organizations. They decided to send lawyers down to Mississippi, Georgia, Alabama, Florida, and a number of other states for a few weeks to support the civil rights movement. Most of these lawyers devoted their vacation time to the movement.
Under the auspices of the American Jewish Congress, I volunteered to go down south in August and, until the very last minute, I had no idea where I would be sent. I figured the odds were I would be going to Mississippi, but as it turned out I was sent to St. Augustine, Florida. Many of us know St. Augustine as a quiet town where Ponce DeLeon supposedly discovered the “fountain of youth.” It was much more complicated than that. Racism in the south was often quite surprising. For instance, there was very little housing segregation in St. Augustine and no such thing as a “black neighborhood.” Despite the racism, blacks and whites lived “next door” to each other and got to know each other. Of course, Jim Crow prevented the black and white communities from really knowing each other. Also, unlike in most of the south, the majority of the people living in St. Augustine were Catholic, not Protestant and the KKK had no use for them. Still, many of these Floridians were transplants from the north or from Canada who, on arriving in the south, became strong supporters of segregation and racial discrimination. So, since the Klan wouldn’t have them, the Catholic population formed their own organization, “Manuci’s Raiders,” named after Hoss Manuci, a local racist.
I flew into Jacksonville, Florida and got a ride to the local LCDC office in St. Augustine which was located in the waiting room of Dr. Robert Hayling, a black dentist who was the President of the local SCLC. Historical and momentous legal business was being conducted in this waiting room. The very first night I arrived, an incident took place. A member of Manuci’s Raiders approached Dr. Hayling’s building, gun drawn and shouting “c’mon out.” He sounded like he was drunk and was yelling racial epithets. The other lawyers and I who were in the waiting room at the time discussed what we could do to get rid of this guy who, I was told, was Manuci himself. One lawyer, from Newark, New Jersey, wanted to call the State Police to have Manuci removed. I told him he must be kidding: the State Police were surely in cahoots with these local “Klansmen” but he said, “Don’t worry, don’t worry. I know what I’m doing.” He called the State Police and in short order a uniformed trooper came by. The lawyer told the trooper to “get rid of that guy”—and he gave him ten bucks. This might have been a little irregular but it did the trick. The cop took the money and took care of the situation.
The lawyers at the LCDC office, aka Dr. Hayling’s waiting room, were very skilled and devoted to the cause. One fellow in particular, Alvin Bronstein from Elizabethville in upstate New York, was most effective. I believe he went on to become the head of the capital punishment section of the American Civil Liberties Union and then a professor at Harvard. Another attorney, from Washington D.C., went on to become the Legal Director of the ACLU in D. C.
When I arrived in St. Augustine the SCLC had led all sorts of demonstrations and there were one thousand civil rights criminal matters pending for which the office was responsible. In addition, there were various civil suits to force the integration of certain public facilities, including the local hospital. On the front burner was a case seeking the abolition of racial segregation and discrimination in approximately twenty restaurants and motels. A lawsuit pursuant to the Civil Rights Act of 1964 had resulted in a decision ordering these restaurants and motels to accommodate black people on a non-discriminatory basis. Several weeks had passed and most, if not all, of the restaurants and motels were not in compliance with the Federal Court Order.
We made an application to the Federal Court to hold one of these facilities in contempt and the Court found in our favor and fined the owner five hundred dollars and required him to turn in the Deputy Sheriff’s Badge he held. This made national headlines because it was the first contempt conviction under the newly-passed Civil Rights Act, which was only a month or so old at the time.
Racism could be quite complicated. The businessman who was held in contempt was leading a double life. In addition to having a (white) wife and children, he had a black lover, spent as much time with her as with his legal wife and children, and made no attempt to hide the situation. He had two or three children with his lover and, in fact, accepted full responsibility for their well-being. I was told he paid for these kids’ college education. Apparently, this whole situation was quite commonplace.
Because of the publicity surrounding the contempt citation, Martin Luther King came down to St. Augustine and staged some press conferences attended by an enormous number of reporters, cameramen, photographers, and the like. On one occasion I caught a photographer who was looking for something to “shoot” encouraging a teenager to throw an ice cream cone at a group of civil rights workers so that he would have that picture to present to his employer. I chastised him for encouraging something so stupid and he looked at me sheepishly and walked away.
I recall that at one of the press conferences there was a long table covered by white sheets that would look good for the photographers and cameramen, and Dr. King kept insisting that I sit at the middle of the table. I told him that I was not the one the media were interested in and that he should sit there. He responded with words to the effect of “C’mon. Your wife will be surprised to see you on TV.” I finally talked him into letting me sit off to the side.
I had a lot of personal contact with Dr. King and probably ate a meal with him on five or so occasions. The most memorable were the times I heard him speak, along with his associate, the Rev. Jose Williams, at two or three black churches. The way it worked was that Dr. King spoke first, then Rev. Williams, and then the “Jewish lawyer from New York,” Alvin Dorfman. Dr. King’s talk was absolutely brilliant: the content, word choice and delivery were just terrific and the audience was in awe. When he finished his talk, I noticed that some of the people in the audience were beginning to head for the door and attempt to exit the church. Rev. Jose Williams got up and shouted, “OK you niggers—get back into the church.” Obviously they expected a request for contributions and were trying to save themselves some money but they all came back and sat down.
In one landlord/tenant case before a judge who was not so swift, the landlord claimed the tenant hadn’t paid rent in three months while the tenant said he was up to date in his rent. The judge asked the tenant if he had a canceled check or receipt as proof but the tenant said the rent had been paid in cash and that he’d never thought it necessary to get a receipt. When the judge then asked if he had any witnesses to the payment, the tenant said he did: “the man upstairs.” The judge asked where the witness was and the tenant repeated that the witness was “the man upstairs.” In his wisdom, the judge then told the tenant that if he had trouble getting the witness to appear, the judge would help the tenant by issuing a subpoena. The tenant thought he was going crazy. He kept telling the judge “it’s the man upstairs” but the judge never got the message. Basically the judge was a pretty nice guy but if you got justice from him, it was purely coincidental.
Some of the other judges were not so “nice.” One judge had been an ADA in the office of District Attorney and while he thought of himself as being very smart, in reality he was a racist. If you had a black defendant in a criminal matter, you had to tell this judge that your client was a great basketball player. Otherwise he didn’t think he was worthy of consideration. This phony basketball claim kept an awful lot of clients out of jail.
One County Court judge was supposed to be very smart but he only seemed racist and abusive to me. I had a client, charged with felonious possession of a gun, who had a drug problem. His parents wanted him admitted to a facility for treatment and the District Attorney’s office had no objection but when I made an application in open court, requesting that the case be put over for a few months so that the client could be admitted to the facility, he began to berate me. He said that I pushed and pushed and never let go, that I was like a shopkeeper who always tried to make every sale. It was clear to me that this was an anti-Semitic diatribe and I told him that. He denied it, telling me that his former law partner was Jewish. He granted my application and I was convinced that had it not been for my accusing him of anti-Semitism he would have turned it down.
I tried to bring my complaint of anti-Semitism before the Administrative Judge of the County Court but he refused to see me; he did not want to get involved. When I failed to get another judge to see me, I filed a complaint with the Commission on Judicial Conduct. News of this made the rounds among the judges and lawyers and I thought I would be castigated for what I had done—but it was just the opposite. Some of this Judge’s colleagues came to me, expressing their appreciation for what I had done since they felt this particular judge was abusive and one big “pain in the ass”. Some asked me if the incident with the judge had occurred before or after lunch. They felt it had probably been after a lunch during which he had done some drinking. In reality, though, this all happened before lunch and drinking probably did not enter into it.
I’m sure these kinds of judges are to be found all over America. If the lawyer gets a smart and decent judge, the lawyer has to consider himself lucky. But even if the judge is vicious and racist, the poor lawyer has to say “Your Honor” this and “Your Honor” that. But on a few occasions, I rebelled.
My client was scheduled for sentencing on a misdemeanor charge. The judge had promised probation and that’s what I expected. However, there was one wrinkle in the case. Between the time of his conviction and his sentencing, my client was arrested on another misdemeanor charge that was still pending when I came before the judge in his chambers. He insisted the deal was off and he wanted to give my client six months in prison. I told him that one thing had nothing to do with the other and that since the second case was still pending, the client had to be presumed innocent in regard to that case. The judge insisted on the six-month sentence but I suggested one month. He went down to five months and I suggested one and a half, and we kept going on and on like that. Suddenly the judge said to his uniformed court officer, looking at me with hatred in his eyes, “Arrest that man.” The court officer told the judge she couldn’t do that because I happened to be her lawyer in a personal matter, whereupon the judge started shouting and called on her to take his blood pressure. I suggested to the judge that he recuse himself, which he did. The case was assigned to another judge.
A few days later, my associate came running to me to tell me that this same judge was about to sentence one of our clients to jail on a DWI charge when he had already submitted himself for two months to a residential facility, which clearly did him more good than what would probably have been thirty days in jail. I ran over to the judge’s courtroom which was absolutely filled with lawyers having legal matters before the court, and asked to be recognized. I suggested the judge recuse himself from the case with my client and when the judge asked for the grounds of my request, I looked him in the eyes and said, “Judge, the grounds are that you are being irrational.” You could have heard a pin drop. Everyone (including me) was expecting the judge to tell the Court Officer to arrest me at once. But to our surprise, he did no such thing. He granted my request without referring to my claimed reason and ordered the transfer of the case to another judge. On the one hand I felt sorry for the judge but, on the other, I thought of all those defendants he’d “screwed” because of his irrationality. There is something about being a judge that lends itself to a sort of tyranny. No matter what the judge says or does, you’re not supposed to say anything and I think this has gone too far. If the judge is abusive or if he is simply a fool, it should be the lawyer’s duty to do something about it.