On Saturday, October 26, 2013, the Arthur Garfield Hays Civil Liberties Program marked its 55th anniversary. For over half a century, the Hays Program has supported law students pursuing public interest careers by providing them with a stipend and academic support. The day’s celebrations included a critical discussion of Supreme Court cases by former Hays fellows, the announcement of a new fellowship named after Sylvia Law ’68, Elizabeth K. Dollard Professor of Law, Medicine, and Psychiatry and co-director of the Hays Program, and a keynote speech by the president of the American Civil Liberties Union (ACLU).
In the opening panel, former Hays fellows tussled with the question, “Which Recent Case Lost in the Supreme Court Can Civil Libertarians Best Live With (and May Even Have Been Right)?” The panelists included David Rudovsky ’67, founding partner of Kairys, Rudovsky, Messing & Feinberg; Eric Lieberman (LL.M. ’73) of Rabinowitz, Boudin, Standard, Krinsky & Lieberman; Gemma Solimene ’87, a clinical professor at Fordham University School of Law; Maddy deLone ’94, executive director of the Innocence Project; Rachel Meeropol ’02, a senior staff attorney at the Center for Constitutional Rights; and Rachel Goodman ’10, a staff attorney at the ACLU Racial Justice Program.
By posing the initial question, Norman Dorsen, Frederick I. and Grace A. Stokes Professor of Law and co-director of the Hays Program, later admitted that he had wanted to be “as fiendish as possible.” He had asked these former Hays fellows to work hard—to reframe cases that might otherwise simply be dismissed as “bad decisions” by a conservative Court. The result was a round-robin answer session of thoughtful, and sometimes surprising, responses.
In her answer, Solimene brought up Shelby County v. Holder (2013), in which the Supreme Court struck down a key aspect of the 1965 Voting Rights Act. Section 5 required select states with a history of racial discrimination to get any proposed changes to their voting laws approved. The Court’s ruling might have been wrongheaded, Solimene said, but “keeping the topic in mind, something good may come out of it.” Fixing the Court’s decision could mean the passage of a new law, one that would include the entire country, covering northern states like Pennsylvania and Ohio that today are contemplating controversial voter ID laws. Still, Solimene said that the Court’s decision is too fresh to say anything for sure. “Who knows? The jury is kind of still out.”
Before discussing his case, Rudovsky shared a poignant story. Having graduated in 1967, he could recall a time when this panel’s question would not have been so relevant. “It was the height of the Warren Court. Civil libertarians were winning not all cases but many. We were about to launch our legal careers, my fellow Hays fellows and others, thinking the future looks bright.” That didn’t last, he said. Soon after his graduation, in 1968, the Court ruled that burning a draft card was not protected by the First Amendment. He added with rueful humor, “And so now we have 45 years since then of bad law.”
And yet, as he would point out in his answer, we still find ways to live with bad decisions. In Rumsfeld v. Forum for Academic and Institutional Rights, Inc. (FAIR) (2006), law schools that objected to the “Don’t Ask, Don’t Tell” policy unsuccessfully argued that they had a First Amendment right to bar military recruiters from coming on campus. Although civil libertarians lost this case, that loss opened the door for discussion and protest. “[The students] were much more energized by that process—the protest process—than arguments in court,” Rudovsky said. In fact, the reaction to this ruling would become part of the larger conversation about LGBT rights, which culminated in the repeal of “Don’t Ask, Don’t Tell” in 2010. This case, Rudovsky concluded, affirmed “the power of reengineering our thoughts, reconsidering, and using some other methods to reach the same result.”
Watch the full discussion below, moderated by Adam Cox, Professor of Law (1 hr, 59 min):
Later that evening, Dorsen announced the Sylvia A. Law Fellowship in Economic Justice. In praise of his longtime colleague, he said, “If you want the best teacher, you’re not going to get it. If you want the best scholar, you’re not going to get it. If you want the best mentor, you’re not going to get it. But if you want all those things added up to the greatest package you could have, Sylvia Law is the person.”
At the end of the night, Susan Herman ’74 gave the keynote address. The day’s festivities had brought together many like-minded individuals, bound together by similar interests and interwoven histories. Dorsen, for instance, had been not only Herman’s constitutional law professor at NYU Law but also her predecessor as president of the ACLU. As a result, Herman centered her keynote on heroes of the past, reflecting on what she believed should be the purpose of gatherings like this: “We can give each other inspiration.”
Watch the announcement of the fellowship and Herman’s inspiring keynote here (1 hr):
Posted on November 13, 2013