Two dynamos of women’s rights law crashed through the glass ceiling—part 2

Sally: Welcome back to part two of this fascinating conversation between Judy Lichtman…
Judy: …Challenging G.E.’s health and disability policy which covered everything and when I say everything, I mean everything. It covered vasectomies, it covered circumcisions, it covered injuries you received from felonies you committed. There was only one thing it didn’t cover…

Sally: …And Marcia Greenberger.

Marcia: So we actually filed the first brief before either G.E. or the union did, to set out why pregnancy is a condition that can be disabling and should fit into the model of what they were covering…

Sally: Now, fast forward, the Supreme Court decided, written by Justice, was he Chief Justice Rehnquist at the time?

Judy: No, Justice not Chief Justice.

Sally: Justice Rehnquist decided that…

Judy: That G.E.’s plan was in no way sex discriminatory and therefore not a violation of Title VII of the Civil Rights Act because you weren’t comparing men and women, you were comparing pregnant and nonpregnant people. And always when I talk about it, it’s just particularly Rehnquistian to think that that is what you were comparing. And, indeed, what we did, maybe just days, certainly not a week after that decision that came down on December 7, 1976, a true day of infamy, was that Ruth Bader Ginsburg, who was still teaching and was the head of the Women’s Rights Center at the ACLU called a meeting of all of us women’s rights lawyers to talk about, “Okay, what are we going to do? And what’s the plan to go to Congress and overturn this really horrific Supreme Court decision?” Ruth, I think, without speaking for her, brought to that table the vast expertise and sophisticated knowledge about litigating sex discrimination cases. I don’t think at that very moment she would have fashioned herself a lobbyist experienced in getting legislation passed but we had by then only a few years into our jobs, and I came with a fair amount of experience working on legislation. There was no doubt that we needed a statute to overturn this horrific…

Sally: Gilbert decision?

Judy: …Day of infamy decision. So very quickly, that coalition divided itself into a steering committee which Ruth chaired, and a number of operational implemented committees. One was the Legislative Drafting Committee, which Marcia and I both co-chaired. Another was a Public Affairs Public Education Communications Committee. There was a research committee and I’m probably leaving something out.

Sally: But you two masterminded the legislative strategy.

Judy: We did with a lot of help from a lot of very, very smart people, we did.

Marcia: Clearly, we worked very closely with people on the Hill as well. And the staff on the Hill.

Sally: Senator Kennedy, as I recall, was a champion.

Judy: He was.

Marcia: Yes, absolutely and he, throughout his tenure In the Senate, had superb staff and so we would be consulting with them.

Judy: And the unions had wonderful, wonderful staff that they lent to us. So the AFL General Counsel’s Office had a wonderful woman named Marsha Berzon, who worked very closely with us, who is now an important judge on the Ninth Circuit and has been that for more than 20 years, probably. And so it was a healthy amalgam of great brains, mostly women, but not only women.

Marcia: And to go back to your question, it seemed so outrageous to say that pregnancy discrimination isn’t sex discrimination. That is how it struck people in the public and on the Hill, that if you’re discriminating against somebody because they’re pregnant, that doesn’t have anything to do with the fact that they are a woman. So there was the immediate outcry that this isn’t right and this isn’t fair and the facts of the General Electric case that came out worked to our advantage because in fairness, G.E. at the time, had one of the most generous fringe benefit plans and disability plans that the industry had. So their very generosity worked against him because it was arbitrary just to leave out this one gaping hole of the pregnancy-related conditions.

Judy: So working on pregnancy discrimination became a very early priority of ours absent a big strategic plan that said, “Oops, I’m going to work on pregnancy discrimination.” The other major issue that I worked on from the very beginning was the enforcement of Title IX. Now, Title IX was passed in 1972, as we all just discussed a few minutes ago but when I came in ‘74, it still had no enabling regulations and without getting more wonky than any audience has a right to expect of us without regulations, without explaining what the government means and intends in terms of implementing a law that Congress passes, the law is virtually useless. The law is not worth that paper on a wall without implementing regulations. So here we were, I came in the summer of ‘74 without any regulations. Marcia was already at the Women’s Rights Project.

Sally: Did you two know each other at the time? When did you–?

Judy: I’ll let Marcia tell that story.

Sally: Tell that story because you were in parallel organizations and we want to get to your decisions to stay in parallel organizations.

Marcia: Okay. Well, I had started a year plus before and one of the other areas that was an area of focus that I decided on was education because that, of course, was central also as well as employment. The third by the way was women’s health. And Title IX had just passed and so here was an opportunity to work in a very important area and a brand new law. So, as Judy said, the law just said you can’t discriminate on the basis of sex in education programs or activities that receive federal funds. It was modeled after Title VI of the ‘64 Civil Rights Act. And the ‘64 Civil Rights Act prohibited race and national origin discrimination, not sex discrimination. So Title IX added that sex discrimination prohibition for education…

Judy: Only. For education only.

Marcia: …In 1972. A number of women’s groups had come to me and said that they were concerned because when Title VI was passed, the implementing regulations were issued within six months of the time that the law was passed. The time was going, going, going, no regulations, and the government said, and it was HEW at the time, Health, Education and Welfare.

Sally: So it was a Nixonian HEW? Dragging its feet.

Marcia: Yes.

Judy: And then a Ford administration dragging its feet.

Marcia: And so the question of well, it’s six months for Title VI, and the months are going by then more time is going by and the administration said that basically as a matter of fairness to the covered colleges and universities and all the public schools around the country that were covered by Title IX, they would wait to enforce the law until they had these implementing regulations to give the schools an idea of what it really meant. Does it mean that you have to get rid of single sex dorms which were very common at the time? Does it mean you can’t have scholarships, some for men and some for women, which were very common at the time? Does it mean that in sports, you can’t have men’s teams and women’s teams? Important questions. Does it mean that home ec. and shop could be girls only and boys only which they used to be in many schools? So some of the answers were “You can’t have just all girls or all boys like home ec. and shop” and other answers were “Yes, you can have single sex dorms” as an example on that basis.
In any event, the women’s groups were concerned that there weren’t these implementing regulations and they came to us at the Women’s Rights Project to bring a lawsuit that was modeled after a lawsuit that had been brought. Because during the same period a few years before, Title VI had been used as the weapon to desegregate the schools in the South. And when Nixon came in, Daniel Patrick Moynihan was in the White House and he said, “It’s time for some benign neglect. It’s time to just stop enforcing Title VI and let things calm down for a while.” So there was this official statement that that was going to be the end of Title VI enforcement for some undisclosed period of time.
So the NAACP Legal Defense Fund wanted to bring a lawsuit and they went to premier civil rights litigators to bring the lawsuit with them and the chief lawyer was a lawyer named Elliot Lichtman. He happened, although I didn’t focus on it at the time, to be the husband of Judy Lichtman. So the first Lichtman that I met was Elliott Lichtman giving me advice on how to structure and bring the lawsuit that would challenge the failure to enforce Title IX, because his case as it went through the courts, won this landmark victory. It didn’t go up to the Supreme Court but it went all the way through all the judges on the DC Circuit that held that while the government has a lot of discretion to decide how to enforce, it doesn’t have the discretion to simply say, “I’m not enforcing I’m ignoring a law together.”

Sally: So you sued the government?

Marcia: So we sued the government and so I knew–

Sally: When did you meet the wife of Elliot Lichtman?

Marcia: So I knew about this Lichtman clan.

Judy: When did you file the lawsuit?

Marcia: We filed the lawsuit in 1974 but in the meantime, the head at the Center for Law and Social Policy was a very good friend of the Lichtmans and knew that Judy Lichtman, his dear friend, was coming to be the first executive director of the Women’s Legal Defense Fund. So he said he would arrange a lunch for the two of us to meet. I of course–

Judy: At the Taj Mahal Indian restaurant on Connecticut Avenue.

Sally: Connecticut Avenue, okay.

Judy: I think it still exists.

Marcia: So we met and as you can–

Sally: I think it’s the Bombay Club now.

Marcia: It was not an elegant restaurant by any means, but it was very good and we had a great lunch. I remember it. And a fun lunch

Sally: This was 1974?

Judy: The Fall of ‘74. I had heard of Marcia through Elliott, but we hadn’t met before.

Marcia: I, of course, knew about the Women’s Legal Defense Fund and I knew that Judy was coming, but we hadn’t actually met. And so Joe Onek was the action forcing event that said, “I’m going to set this lunch up” and the two of us met.

Sally: Now, I’m going to take the liberty of asking you since you worked both in legal organizations. I’m sure you’ve been asked this before, but now I’ve got the two of you here. Legal organizations that both litigated and pushed for legislation. Was there a competitive of feeling between the two organizations, your boards of directors, you yourselves? You’ve remained friends, and I said I know this because I see you having lunch together on weekends so that’s a sure sign of friendship. But you were doing probably many similar kinds of work working on the same issues. And if the answer is no then did you ever think about joining forces? And I’m sure that has been suggested to you in the past because people say to me, “Sally, you run a consumer organization, why don’t you merge with the Consumer Federation of America or some other organization?” They think of us as competitors and I don’t think of us that way. Can you speak to that issue?

Judy: Yes, we are competitors and, yes, we have been asked about merging. I have zero humility about what an extraordinary business model the two organizations and the two of us with very strong partners in our respective organizations with Marcia, Duffy Campbell as her Co-President with me first my deputy and then my longtime successor, Deborah Ness in leading two organizations that manage the competition, be as transparent as possible, and at the same time, acknowledge and thrive on the collegiality between the two organizations, not just as leaders, although I’m proud of the leadership we provided from the very top to our respective quite large staffs today. I don’t think men could have pulled this off. I really don’t. I think it’s a women’s thing. And I think we are both two thriving, healthy, important organizations in a broad civil rights infrastructure for it. And I think the answer to the merger question really is there’s more than enough work for both of us. Both organizations are very trusting and reliant on the good work of the other. So that if the National Women’s Law Center is taking the lead on X, whatever X is, it would make no sense for us to take the lead and vice versa. That doesn’t mean we wouldn’t be very good colleagues and helpers on X, we would. But there’s so much work to do on any given issue, the early regulation, the fight to get strong regulations on Title IX is a monument.
I think if I went back and honestly looked at the papers that are now being warehoused, I would find drafts upon drafts upon drafts of our respective comments getting the regulations right. They were voluminous and they were all the subjects Marcia laid out and probably 10 more that she didn’t have time to talk about. So there was so much work to do, and we both really thought of the other with so much respect and therefore could defer to the expertise of others, that we needed each other and relied upon each other and at some point, more to the 90s, to jump forward from the 70s to the 90s appropriately, we diverged in some subject matters in some very healthy institutional and organizational ways but that just strengthened the need to have both of us be two strong institutions, rather than argue for the merger of the two.

Sally: So another argument that would be thrown your way, I’m sure, is there is not an endless supply of money and funding. You’re both asking very similar companies and foundations for funds and you’ve got a big budget now. We certainly know the partnership has a big budget as does the center and why would you compete for these very scarce funds? This discussion that we’re having is not just for us. It’s for people who are doing the work of public interest lawyers who are working for nonprofit organizations. And we hear that a lot that you’re competing for the same funds and so why would you sort of divide and conquer as opposed to come together?

Marcia: Well, let me say two things. First of all, sometimes it does make sense to merge and so there isn’t an automatic answer that would apply everywhere. But in our instance, I think we felt very strongly that there were several reasons that lead us to resist merging. First of all, that having two organizations in the room reinforcing each other can make us better advocates and more powerful than if there’s only one, and that often played itself out. Number two, we would sometimes find that a particular individual or foundation or corporation or whatever the sort of the donor may be, wouldn’t give more than a certain amount in a grant or a contribution. And with the both of us getting that amount, we ended up with double the resources. Now, of course, sometimes we didn’t, but often we felt that we were getting double the resources

Judy: And that the opposite would be true as well that had we merged, that merged one would not have gotten double the resources. They would have been diminished by 50 percent. We were quite confident about that.

Marcia: And thirdly, we felt, and here was some of the friendly competition, that sometimes we would see one of the organizations finding a source of funding that the other didn’t have and that would be a good idea and we would go make our case. And sometimes the second organization could make the case “You should fund us too” and sometimes we couldn’t. So our funding wasn’t always entirely identical. And so we were able to expand the pie by being two separate organizations by being able to appeal sometimes to different sources of funds. And also Judy had said something that I want to emphasize because we did and do have such a good relationship, that sometimes we didn’t work on the same issues, or did in very much of a supportive way, whereas the other organization would take the lead. And if we were working on the same issue, we would be very intentional about how we would divide up the work. So usually, for example, if there was a brief, one of the organizations would be the lead lawyers, but sometimes we both might be, but then we would divide up the issues that each would be responsible for. So there was such close coordination, that that also helped us feel confident that we had a good case to be made. And I think that because we had a good track record, in not being so duplicative, that funders who would check out at “Does this spiel that we’re giving make any sense? Are they telling us the truth?” I think that those funders when they got checked out, the answers did get reinforcement by the case that we were making.

Judy: You know, I think the counter to the beginning assertion of what you set out, Sally, as what you hear, is that rarely is funding a zero-sum game. And even the most institutional and bureaucratic of institutional donors always have a discretionary pie. There’s always some money someplace for somebody to use when the issue is

Sally: And that makes you both such successful fundraisers for your organizations.

Judy: It’s true. We’re both very entrepreneurial. It turns out that we’re entrepreneurial in the not-for-profit world as distinct for the for-profit world, but I don’t think you’re successful nonprofit executives unless you’re very entrepreneurial people and I think both our organizations reflect that kind of leadership into today.

Marcia: And because our work was mutually supportive, and while the overlaps were limited, and there was a good reason for the overlaps that we could justify, we were able to make a compelling case about why both organizations were stronger being separate than being together.

Judy: I remember one very funny incident where Eleanor Holmes Norton, who is now our non-voting delegate from DC and Marcia Greenberger and I all testified in the early ‘80s, in a republican controlled senate with a chair Orrin Hatch, on sexual harassment to take a timely topic. And at the end of the testimony, he congratulated us in a very sort of phony, gallant way about what a great job we had all done. And then he said, “And just think that you didn’t repeat yourselves.” And we just sort of laughed out loud. Of course, we didn’t repeat each other. There was so much to say we divided up what needed to be said. There’s no question that we weren’t going to repeat ourselves. I was like, “What planet are you from?”

Sally: Classic Orrin Hatch.

Marcia: When the Women’s Legal Defense Fund began as an all-volunteer organization, it had that local service component to it.

Judy: Definitely.

Marcia: It was handling individual people’s cases on name changes Judy described and it was taking on–

Judy: Or employment discrimination but an individual person.

Marcia: It was responding to individual people’s needs as they called in for legal help. And, of course, big precedent-setting cases could arise from an individual person’s case and it did, which I’m sure Judy will get to and describe at some point. But that was a very important beginning focus of the Women’s Legal Defense Fund. The Center for Law and Social Policy was thinking more in a national federal focus and it was bringing cases that we anticipated would go on for years. We were representing often organizations, not necessarily individuals or individuals with organizations and we were there to make law. Our litigation was in the service of establishing legal principles to enforce the law, etc.

Judy: And attack systemic wrongs.

Marcia: Right. [inaudible 25:28] as Judy said, affecting system-wide problems and system-wide issues. So we both ended up focusing on this pregnancy discrimination issue as an example of how the two things overlap. It’s never so neat and clean. But in the earliest years, there was a natural focus that both allowed for cooperation but also difference in emphasis. And so both of our organizations grew and Judy talked about Brooksley Born giving that speech and raising the funding for her and to get the office started. She also was one of the key people who was suggested to me when I first started, to talk to about women’s legal rights, and she and another woman Marna Tucker were teaching some of the first women in the law classes…

Sally: What year was this?

Marcia: In 1972 and 1973 when I was just starting, and she had given that famous speech and she was teaching women in the law classes in the law schools in the Washington area.

Judy: From a curriculum they developed, there was no casebook, I bet

Marcia: Right.

Sally: There was no jurisprudence at that point, right?

Marcia: Virtually none. Ruth Bader Ginsburg had won her very first case Reed v. Reed in 1971 but there were hardly any statutes yet…

Judy: And Roe v. Wade was January 1973. So that gives you a sense, 18 months before I was hired, and virtually at the time that Marcia was hired.

Marcia: Just a few months after I was hired.

Sally: And Reed v. Reed was men were preferred as executors of estates by law in the Idaho State on the books.

Marcia: Yes, exactly. The state law had categories of relatives, so it would have parents, and the father was automatically preferred over the mother regardless of whether the father was in any way, shape or form suitable to serve as an executor of an estate. Brothers were in a different [category], you know, siblings. The brothers automatically preferred over the sisters regardless of whether the brothers had ever known the person who died, etc. and so it was very arbitrary. And Ruth Bader Ginsburg brought that case to the Supreme Court and at the time, the Equal Protection Clause of the Constitution had been used to strike down unconstitutional race discrimination. And states had to show a very compelling interest of the state to justify any automatic race-based difference. As a practical matter, states could never meet that compelling state interest. Otherwise, there was something called rational basis. If the state could come up with any rational reason whatsoever, including a post hoc reason – something they made up after the fact that sounded reasonable – the courts would defer and say, “That’s okay. You can prefer redheaded people over blonde. That’s fine.”
So that was the state of the law until Ruth Bader Ginsburg began her extraordinary career litigating sex discrimination protections under the Constitution. And with Reed v. Reed, she had a situation where there was an estranged family, and the father was automatically preferred over the mother when the son died and was a very inappropriate executor of the estate. And so she brought this case and the facts were very compelling about why the mother should have been the right one to have been selected, and the court agreed. So then everybody says, “Wait a minute. Does this mean sex discrimination is no longer the rational basis low tier? Is it compelling? What is it?” And at that very first case, it was basically the first case where the Supreme Court had ever struck down a state statute as unconstitutional sex discrimination, but it didn’t spell out in that early case, what the standard would be. Eventually, it evolved and became what’s called a Middle Tier Standard. So it wasn’t a compelling state interest but an important state interest. So sometimes the states could meet the standard, and sometimes they couldn’t. And it’s been refined and fine-tuned and developed over the years in important cases. Some that Ruth Bader Ginsburg brought and others that she decided as the Supreme Court Justice. So now race is strict scrutiny of what a state does, with sex it’s skeptical schooling.

Sally: I’m going to throw another question or two at you. I’m going to ask another question. This is for this generation. You talked in your C-SPAN interview, Marcia, about coming home in the afternoon and hearing Senator Joe McCarthy’s hearings, the house on American Activities Committee. It was a very, very dark period in American history. Many people were sent to jail, lost their jobs, blacklisted. We are in a dark period in American history for progressives as well with the current administration. What advice do you have for young progressives who are trying to survive the Trump era? We’ve also lived through the Nixon era, lived through several Bush eras, the Reagan era. In fact, it seems like most of the eras that we’ve lived in and yet, all the strides, we’re not there yet, the strides that have been made in spite of those setbacks, what advice would you give?

Judy: So I think that’s a very good question and a hard question. I think a couple of things. I too remember the McCarthy hearings, but I remember watching it in public elementary school, I’m not much older than Marcia. Two things that feel a little bit contradictory or internally inconsistent but are both true. One, I think these dark hours are what we lawyers call sui generis, they’re like no other. And at the same time, I think there is enormous cause for celebration, about the strength of democracy, at what now feels like a very, very fragile time for democracy. I take that March the day after Trump’s inaugural and the outpouring of women and the good men in our lives and the 40,000 women who wanted to run for public office and the extraordinary taking back, if you will, of progressives of the House of Representatives, by women candidates. I take the Me Too movement and the ability of the strength and the courage of individual women to say, “Never again, no more.” People taking on the horrific conditions on our southwest border, saying, “Never again.” So I see the awful fear around the fragility of democracy also being a time of creating great strength and advocacy on behalf of women advocates all across the board, and I think I’ve just touched the surface.

Marcia: And I’m just going to add to that because I agree that there have been times have total despair and a feeling that the system failed. I’m not sure that any of them were as extreme as what we’re feeling now but certainly, the Clarence Thomas, Anita Hill hearings were a period when we felt as if Congress and the system completely failed us and just felt devastated that fairness simply did not prevail. And people who seem to have been allies there were not there to be relied upon it when push came to shove. But I also think that we’ve spent many years at these dark hours looking for the ways to fight back and we have always found ways to fight back. Just as Judy said, the enormity of the problems now we’ve seen these enormous precedent-setting marches and women running for office and women of diverse backgrounds getting elected to office. And we just saw with women’s soccer…

Judy: Good point. Right.

Marcia: …The incredible victory that the whole country was celebrating, and the hero that is so strong on our women’s team which is filled with heroes, of course, but here she is so proud of her strength of her politics, that she’s a lesbian. These are things that she is out front about, and strong about. And at the same time after the win, the whole crowd yells, “Equal pay”. Nike, a commercial enterprise runs this powerful commercial on women winning. And one of the issues going back to our early Title IX days that was one of the most devastating fights that kept those regulations from getting promulgated was the controversy over women playing sports, and so many people who were opposed to the very notion of women playing sports. So seeing where we have come, despite all of the setbacks, I think gives hope that there are enough of the reservoirs of our system and our population and our sense of right and wrong, that there will be ways for people to fight and ultimately prevail.

Judy: Amen.

Sally: We’re going to wrap up but I do need to ask one final question so that we can close this discussion in a positive way. We already have, you’ve given both incredibly positive messages about the resilience and strength of our democracy and the mechanisms of democracy that continue to protect our soccer players even though the President United States and many people have said that she shouldn’t be allowed to play, she’s probably got far more support than not. The leadership skills that you’ve developed over time and this is again, for our younger generation. What advice do you have for men and women coming up through the ranks about working on progressive issues, and not getting too discouraged? You’ve already talked about democracy. And finally, what do you look for in young lawyers and professionals who’d want to do this kind of public interest work?

Marcia: Well, I’ll start by saying, I look for somebody who views it as a privilege to be able to work on these issues at this time. After the election, people were in tears in my office, and we talked about what a privilege it was not to have to be depressed and feeling powerless, but rather to be in a position where you could be taking those entrepreneurial skills and talents and figure out how you are going to fight back and how you’re going to make a difference. That’s the first thing. The second thing is to think about how wherever you are, does not have to be full time but there can be lots of different ways of making a difference. And life can be filled with twists and turns and different careers, where sometimes you might be doing it in an all-out full-time way. Sometimes it may be in a volunteer way. Sometimes it may be in a part-time way, and that your own personal circumstances may change from year to year. But there will always be some way of staying involved and that can be a very empowering, uplifting thing and way to feel. And in terms of leadership skills, I think that there are some people who are born leaders, and there are some people who develop leadership skills partially from watching and modeling themselves after others, partially, perhaps through mentorship programs. I would say for young people, one of the most important things in early jobs is to look at who you’re going to be working for and working with and make sure that those are people who you can respect. And that is, in a certain sense, the best way of developing those leadership skills and a sense of accomplishment and satisfaction that sticks with you over the long haul.

Judy: So I agree with everything Marcia said, I’m not going to repeat a word of it. But I’m going to add one thing that I know she’ll agree with me about, and that is, we all including you, Sally, spend an enormous amount of time and our personal and professional capital, mentoring mostly young women and some really good men. And what I ask of them when they write me these profusely thankful notes, I say “Don’t thank me, but continue it and do it and come back and report to me what you did to mentor other people because that is my tax.” If I have been successful and you are really thankful, just keep doing

Sally: Two wonderful answers.