RAYMOND: Turning to Plyler versus Doe. What in the world was going on?
LARRY DAVES: Okay, what do you want to know?
RAYMOND: Well, this is really—just tell us about how you got involved in that. What was going on in 1970?
LARRY DAVES: Okay. That was just after the Davis case and there were a group of folks there in Tyler, Smith County, whose kids had been going to school. I can’t remember if it came up in ‘76 or— I get confused about the years—but they had been going to school some years there in Tyler. The state legislature, at some point, maybe it was ’76—
LARRY DAVES: —seventy-five—somewhere along that time—made a decision that undocumented children, noncitizen children in other words, could not attend the public free schools of any of the public schools of Texas without paying tuition. And there in Tyler, for the first two years, the kids had continued to go to school and then, for some reason—and I don’t really know to this day what, even though I read your book and I should know by now what it was— the school board there in Tyler decided to enforce the state statute.
And therefore the kids were sent notes—their parents were sent notes: you can’t come—you can’t attend school here unless you have—unless you can prove citizenship or provide the papers to prove that you’re entitled to be here or whatever.
And so— and they came to our office and I think what happened was Peter, no not Peter— the fellow who ran the immigration project for the Catholic Church contacted, by my understanding, he contacted the Texas Civil Liberties Union to see about getting some help. They referred him to our office. I was trying a case out in, I think it was in Virginia, a Title VII case. And my partner at the time was Bobby Rodkin and when these folks actually came in Bobby was there; she talked to them. She got—I’ve given you—left with you, in fact, the basic part of that original file that Bobby put together. [paper shuffling]
No, it’s all right, it’s all right.
Bobby, at some point, contacted MALDEF in San Antonio, ‘cause we’d been working with MALDEF on some cases, told them we had a situation come up there in Tyler about not letting kids go to school, the MALDEF office referred her to Peter Roos in the San Francisco office in San Francisco and about then is when I got back in town.
We started interviewed everybody trying to figure out who’d be plaintiffs and things. Peter Roos came in. We decided to go ahead and file. They had been looking and hoping to get a case before Judge Justice. We threw together some pleadings and got—had a hearing set on a temporary restraining—not a temporary, either a temporary restraining order or probably on a temporary restraining order hearing and—and—and—started. Is all I can say is we went ahead and went on into court.
And—the—we were concerned about trying to protect the identity. At that time, there was—we were really worried. We didn’t have— the problem was there were only thirty kids at all there in Tyler affected by this, and probably ten families or so—ten or twelve families. And so it would be very easy to retaliate against these folks. They were a readily identifiable group of people, and you always have to worry as an attorney.
You don’t—it’s important to try to vindicate people’s rights, but at the same time you always have to really be profoundly worried about what the human consequences and costs are for the people.
And I’ve always, with every client I’ve ever had, I’ve always warned people about, “If you’re going to go to court, you are really making an unbelievable sacrifice, because your whole life is going to be opened up. You’re going to be attacked like you’ve never been attacked. You’re going to be—none of the presumptions are going to before you; they’re going to be all against you. You really have to believe that going to court is the only thing you can do to try to change this bad situation or you shouldn’t do it because going to court itself is such a dehumanizing and difficult process. And you’ll never be the same after you go through the process.”
And—but anyway—so we were worried about that, and we were worried about—that we were gonna need to protect the identity of these folks for fear they could be—that immigration would arrest them and send them back to the places where they had originally come from or whatever.
And so we told the clients that we would try to get protection for them, in terms of their identity, but we weren’t sure what the judge was going to do.
And so when we went before the judge with that issue—with the request for the protective order, he allowed them to proceed with an alias, which would protect themselves. And if you’ll look at the papers, you’ll see that he also allowed us to change the— to take the identifying information off the birth certificates and title records and things like that so they couldn’t be readily identifiable for public records.
But he also said, “I’m a federal judge, I’m part of the Justice Department and I’m not going and I cannot interfere with normal I.N.S. procedures and things like that. I can’t do that.”
And—so, at any rate, he conducted a hearing very early in the morning. And so early that I remember it being dark still, and he did that really just as an indication of how Judge Justice, what kind of a human being he was. He did it so that the media wouldn’t be able to readily get photographs and things of these folks.
And so he conducted the hearing prior to normal court hours is what he did, or very early in the morning. I ran back downstairs after the judge refused—told us what he was going to do to protect the—our clients and the interpreter— I’m trying to remember his name—it’s on the front page of that. No, no the file.
RAYMOND: On the file. Michael.
LARRY DAVES: Michael—met with Michael. I’m sorry—too many years. My interpreter.
RAYMOND: That’s okay.
LARRY DAVES: And so I met with Michael and—and it was back behind the courthouse, and I explained to him what the judge had done. And I made this a short little statement. “This is an important thing for your children, and it’s important— it could be important for the school children here in the state. But at the same time the judge is refusing to enter an order protecting you from being arrested for your participation in this thing. You may face the consequences of being deported.”
They all stood there and kind of talked, huddled together and talked a little bit, and then one person said, “Well, Mr. Daves, if they deport us today, we’ll just swim back tomorrow.”
Essentially, that’s what he said. I always thought that was tremendous. These folks had been there for some years. When you look in the papers, you’ll see some of these people owned houses; they’d been taxpayers; they’d been living in this community, some of them over ten years. They had children who were citizens. They had and couldn’t be touched because they were citizens. They were just a very courageous group of people.
So we went on in, and it was just so cute there in the courthouse. All those cute little kids, sitting there, and they’re so well behaved. It’s amazing— it’s just amazing. They sit there though this entire proceeding.
We had these—Judge Justice required that the Justice Department be part of the proceeding, so he had the Justice Department attorneys up there and of course us. John Ardienne, the attorney for the school board, at that time the Attorney General’s office, I don’t think was there at that particular hearing. They were later when we got down to the permanent orders hearing
– but I always just remember how well behaved those little kids were. Oh my goodness gracious, it was just such a cute little group of kids. But they sat up there and listened to the whole thing and I never heard a peep from any one of them. It was amazing, just amazing.
At any rate, Judge Justice did what Judge Justice normally does; he heard the evidence, and cracked the whip. Let justice prevail.
And later on, about three months later, Bobby was already leaving. She had gotten a job in Boston or somewhere. I had a problem with partners that first couple of years. They were all from the East and they couldn’t deal with these rural areas. But Bobby Rodkin, she was a sweetheart. She had already—she left within a few weeks of that first hearing and went up to Boston. The last I heard from her, she married an Indian doctor and was working refugee camps somewhere in India or Pakistan or something like that. She was quite a character herself.
But she had practiced law with Martha McCabe when Martha—Bobby and Martha were the first female lawyers in East Texas and they had a practice in Nacogdoches when I had my practice there. I actually—they had come through and were undecided about coming to East Texas. They were law students at Northeastern and asked for my advice.
And I said, “Oh yeah, it’s gonna be hard. But if you go anywhere, go ahead and try Nacogdoches.” Particularly because Nacogdoches has had a, though the law enforcement folks were very severe, Nacogdoches had a very loving community, particularly of the students and the professors and the people with the Voter’s League and stuff like that. So in terms of a real life and a total life, Nacogdoches was a much better place to live then. These—they would have like their own music festivals. There’d be a full life, and not just being in court and fighting all the time. I mean, you’d actually, on weekends, have a social life too.
And so I encouraged them. I said, “You’re going to need that, too. You need to also have a regular, normal life to be helpful.” And so they had set up in Nacogdoches first, and then for some reason Bobby and Martha ended up splitting up over Bill Ozosky, I think—over their—over Martha’s partner. Bobby didn’t like Bill; she couldn’t get along with Bill. And so she asked whether or not she could come to Tyler and we could work together, and we did. We formed a partnership and she was very good. She did a good job, but it was time for her to move on. It was very difficult to live in this rural world. Even Tyler was rural for her.
But we went on. Peter and I tried the case in, I want to say November or December.
And—we had a series of experts from San Antonio who came up and, I think probably, the keys really to the Doe versus Plyler case was one, Judge Justice, as always, the more important thing; two, the fact that the Justice Department was on our side, from the very beginning. That was during the Carter administration, and so the Justice Department took the position that the kids were entitled to equal protection, they were entitled to go to school, and it was just wrong to prohibit them from getting an education.
And the experts from the civil rights establishment in San Antonio, they were great; God, they were good. And I think that ultimately is what kind of carried the day. I read your thesis on it, and I agree that Doe versus Plyler doesn’t stand for a particular legal proposition that is very helpful, but what it does stand for and what we thought it stood for, even at the time, was not really an expanse of the law so much as a—we felt like—that the justices were going to have a impossible time if they found against us, or against these kids.
Because what they would have to do is, to find against us—would be essentially to be making a statement that it is okay in an egalitarian society to intentionally restrict a whole population from the critical role of education in a free society. And we had problems with whether— we had real doubts as to whether or not a majority of the justices on the court would be willing to say that we are now at a point in this society where we are just like those European societies that we’ve moved away from—the class-based tier. We just didn’t think they’d do it.
And so, though—and so—and factually, it is so difficult, and what they were dealing— the problem is they were dealing with the Rodriguez case, which was wrongly decided in the first place. And that’s what happens a lot of time. Rodriguez should have been resolved in favor of the plaintiffs in that case. In Rodriguez, of course, what they were arguing is that one school system that is totally impoverished—it’s not a fair fight where you’ve got these really rich school districts out there—lily-white. What they—unfortunately, what happened in Rodriguez, is the race issue, which is not the issue that should have been litigated, and it really was.
These San Antonio schools were ninety-nine percent Hispanic and Black. This is—to this day, the San Antonio schools are still segregated, you know what I mean? You have lily-white students out there in these exclusive school districts out on the side, rich school districts, but anyways— But unfortunately, the Supreme Court was having to deal with Rodriguez and trying to justify a wrong result. The Rodriguez case was decided—was—it had the wrong result in it. They should have found a violation of equal protection, and they didn’t and they should have, you know what I mean? And they did it, unfortunately, without dealing with the reality of the situation, and the reality of the situation is racism. And the deal—unfortunately, the court didn’t deal with the reality of racism.
That’s all I can say, and, I think, if the courts are not dealing with the real situation, the world—they’re gonna make things out there that have nothing to do with it, and then like in Doe versus Plyler, they’re having to use something that has no real relationship with the universe or rational relationship with the universe and use that, and try to use that as a legal foundation for them to make a decision.
They finally said—when you finally read what they finally did, it makes no sense whatsoever. You’ve got opinions going here and there. It makes no sense.
All they really finally said, the majority of the court said, “It ain’t right. It ain’t fair. You can’t treat kids this way. They had nothing to do with it. Their parents brought them over here. They’re innocent.”
But the more powerful part of that was not that part, as far as I was concerned. The more powerful part of it was that, if we don’t let these kids go to school and provide equal access to the public education system, we’re going to create an entire underclass of folks and essentially restore European feudalism as far as I’m concerned, and I think that was what they really—that was the core of it.
I think they had an opportunity, but Judge Justice hadn’t seized it either. We had originally argued, in the preliminary hearing, that the duty or obligation for Texas and the United States to educate these kids is international treaty. There are international treaties that required the students— Americans in Mexico have to be educated, Mexicans in the United States have to be educated. That was a much simpler solution but nobody wanted to go there, at least in the courts, because it would have been allowing international treaties and international legations to have some content to them.
And that is sad, because it would have a much easier resolution in this case than what they finally ended up doing, and what they finally ended up doing ended up not being very helpful in terms of precedent. It would have been a powerful precedent to have said, “We have to live up to our international treaty and responsibilities.” That would have been much, far as I’m concerned, that would have been better.
RAYMOND: And you argued that in the hearing?
LARRY DAVES: Yeah. It was in there. Yes.
RAYMOND: I didn’t know that.
LARRY DAVES: We did argue that. That was one of the original issues we briefed and argued. Yes. But Judge Justice discounted it, and they mentioned it in the argument—in the final—in the Supreme Court decision, they mentioned it, but just sort of pooh-poohed it. But at any rate, it was—to me, that would have been far more effective.
RAYMOND: Have you tried to use international law in other cases?
LARRY DAVES: No. I’ve honestly haven’t had it come up. No. I’ve never had it come up, that I know of, that I can think of anyway.