Counsel For The Cause
David S. Tatel was a young Chicago lawyer when the city erupted in riots 26 years ago after the assassination of the Rev. Martin Luther King Jr.
"Our first child was born the day the riot was started,'' he recalls. "We were in the hospital and could see the smoke billowing up on the South Side.''
A 1966 graduate of the University of Chicago law school, Tatel was doing antitrust and other corporate legal work at the prominent Chicago firm of Sidley & Austin. But the April 1968 riots that followed King's death would soon play a pivotal role in steering him into a professional life devoted to civil rights and educational policy.
In the summer of 1968, Sidley & Austin lent Tatel to the Chicago Riot Study Committee, a panel formed by Mayor Richard J. Daley to investigate the causes of the unrest.
"I spent the summer of '68 prowling through schools on the South and West sides,'' talking to teachers, administrators, and parents, he says. At some public schools after King's death, black students vandalized buildings and went on riotous marches, while other schools remained relatively calm.
"In schools where the disturbances were controlled, there were teachers and administrators who were tough,'' he says. "It was leadership.''
Tatel was stunned by the racial segregation he found in Chicago's schools. He returned to his law firm after his work for the riot committee, but not without developing a keen interest in civil rights and the potential for the law to improve educational opportunities for urban youths.
That interest propelled him to a career that has included a stint as the chief civil-rights enforcer in the U.S. Health, Education, and Welfare Department under President Jimmy Carter and a partnership in the Washington law firm of Hogan & Hartson, where he established an unusual education-law practice that remains committed to helping desegregate urban school districts.
Now, Tatel is said to be President Clinton's choice for a spot on the U.S. Court of Appeals for the District of Columbia Circuit, considered one of the most prestigious federal-court appointments. He would take the place vacated by Associate Justice Ruth Bader Ginsburg of the U.S. Supreme Court. His friends think it's possible that Tatel himself may become a candidate for the High Court in a few years.
If the appeals-court appointment comes through--a topic Tatel understandably declines to address for now--the federal bench would gain a jurist for whom the desegregation of public schools remains a burning issue.
Forty years have now passed since the Supreme Court's historic ruling in Brown v. Board of Education of Topeka that school segregation was unconstitutional. Today, many educators and desegregation experts seeking to fulfill the Court's mandate question whether the millions of dollars that have been spent in efforts to achieve racial integration have done any good. Others lament the long hours that children must spend riding buses, while still others contend that integration is virtually impossible for many urban districts.
But Tatel is among those civil-rights activists and thinkers who maintain that the job of desegregating school districts is far from over.
"As we move toward the 21st century and our nation becomes increasingly diverse, the argument for integrated schools becomes more, not less, compelling,'' Tatel wrote recently in the Stanford Law & Policy Review.
David Tatel was born in Washington in 1942, and grew up in the city's Maryland suburbs. His father, a physicist at the Carnegie Institution in Washington, died when Tatel was 15.
After attending the Montgomery County, Md., public schools, Tatel graduated in 1963 with a degree in political science from the University of Michigan. He was on the law review at the University of Chicago law school.
It was after law school that Tatel began to lose his sight to retinitis pigmentosa, a degenerative disease of the retina that ultimately leaves its victims blind.
The fact that Tatel is blind adds to the admiration he receives, yet it quickly becomes a virtual nonissue, colleagues and acquaintances say.
"David has always been an inspiration,'' says John A. Murphy, the superintendent of the Charlotte-Mecklenburg County, N.C., schools. "He handles himself in all settings as though he doesn't have a [vision] problem. What's amazing about David is that as a totally blind attorney, he probably reads more books than most sighted people.''
To keep up with the voluminous amount of reading involved in his job, Tatel uses a device that scans documents and converts them into audible sentences. He relies on audiotapes when he reads for pleasure, though never the abridged versions of best sellers available in most bookstores.
His blindness is no barrier to his daily morning jog with his Chevy Chase, Md., neighbors, nor did it keep him from a recent ski vacation or from frequent hiking trips with his wife and four children.
Tatel terms his blindness merely "a nuisance.''
"It would obviously be better not to be blind,'' he says. "But I'm in a very supportive environment, and I have access to technology, which helps.''
Joseph L. Rauh Jr., the veteran Washington civil-rights lawyer, once told The Washington Post that he did not realize Tatel was blind during two meetings they had before Tatel took over the civil-rights job at H.E.W.
In his political memoirs, Joseph A. Califano Jr., President Carter's Secretary of Health, Education, and Welfare and Tatel's boss, said the lawyer's disability "seems to have sharpened his mind and contributed to an extraordinary command of facts.''
"Remarkably, his eyes are singularly expressive,'' Califano continued in his book, Governing America. "They become intense in an argument, and twinkle once the argument is won.''
Although he is 52 years old and graying, Tatel's trim, athletic build makes him appear several years younger. In conversation, he often launches into a sentence, then hesitates and pulls back, as if catching himself sounding immodest.
Michael Casserly, the executive director of the Council of the Great City Schools, an association of large, urban districts and a Hogan & Hartson client, says Tatel is "passionate without ever appearing to lose his cool.''
"He is just brilliant at being able to take a complicated set of legal principles and explain them to a lay audience,'' Casserly adds.
Casserly is not alone in his estimation of Tatel. Friends, colleagues, and former legal adversaries alike term him hard-working, intellectually gifted, and even-tempered.
"David has probably done more for public education and underprivileged minority children than anyone I know in America,'' Murphy says. In 1981 and 1982, when Murphy was the superintendent of the Prince George's County, Md., school district, Tatel and Hogan & Hartson represented pro bono a group of black residents in a desegregation case against the district. Murphy has now made the Charlotte district a client of Tatel's firm.
"He represents clients well, but also does it with the children in mind,'' the superintendent says.
Michael J. Specter, a Milwaukee lawyer who was Tatel's opponent in a desegregation case filed in 1984 by the city school district against several suburban districts and the state of Wisconsin, says the lawyer "combines encyclopedic knowledge of the law with terrific common sense.''
"He is very patient and has a good sense of humor,'' says Specter, who represented some of the suburban districts in the suit.
Those virtues seem to have served Tatel well throughout his transition from corporate law to civil rights.
Even before his assignment with the committee studying the Chicago riots, Tatel had two encounters that piqued his interest in education. The first was meeting his future wife, Edith, who was a teacher at a nearly all-black high school on Chicago's South Side.
"She was into education long before I was,'' he says. Edith Tatel is now a supervisor of substitute teachers for American University in Washington.
The second was an assignment that brought Tatel into contact with Alexander Polikoff, whom he describes as the model of the private-practice lawyer concerned with doing good for the community.
In 1967, Polikoff was representing the plaintiffs in a desegregation case against the public schools in Waukegan, Ill., an older city-suburb north of Chicago.
As a pro bono lawyer for the Chicago Urban League, Tatel helped write a brief urging the Illinois Supreme Court to re-examine its decision that programs designed to create equal educational opportunities must "be administered without regard to race.'' Tatel's brief argued that racial discrimination remains "America's greatest domestic problem.''
"It would indeed be ironic if American statesmen, after decades of using racial categories for purposes of separation, could not now use those same categories to cure the sores caused by that separation,'' the brief read.
Polikoff, today the head of a public-interest law organization in Chicago, says Tatel's brief was "wonderful,'' and the young lawyer "helped marshal other organizations to support the plaintiffs. He was instrumental in putting on a full-court press.''
The state high court agreed to rehear the case and ultimately ruled for the Waukegan plaintiffs.
As a result, "we got the schools in Waukegan desegregated,'' Polikoff says.
For Tatel, the assignment was something of a revelation.
"Here I was at a big law firm and I was asked to do this really interesting pro bono project for a lawyer who I thought was exactly what every lawyer should be,'' he says.
By the following year, Tatel had begun taking steps to become that kind of lawyer himself. He was an investigator for both the panel that studied the King riots as well as the Chicago study team for the National Commission on the Causes and Prevention of Violence, which looked into the street battles that erupted during the Democratic national convention.
In 1969, he took his first full-time civil-rights job, as the director of the Chicago Lawyers' Committee for Civil Rights Under Law.
"I was perfectly happy at Sidley & Austin, but these opportunities come along and you grab them,'' Tatel explains.
After a stint in that job, Tatel returned to Sidley & Austin for a couple of years, then left Chicago for Washington and a job as the director of the National Lawyers' Committee for Civil Rights Under Law, a major civil-rights organization in the capital. He joined Hogan & Hartson in 1974, heading the firm's community-services department, which coordinates its pro bono work.
When Joe Califano took office as President Carter's H.E.W. Secretary in 1977, he hired Tatel to run the office for civil rights. Califano apparently chose him based on his reputation in the civil-rights arena.
Califano wrote in his memoirs that the office for civil rights had been a major victim of President Richard M. Nixon's "direct attack on civil rights.''
"Demoralized ... the office was no place for the bright, ambitious lawyers who had lent it prodigious energies under [President Lyndon B.] Johnson,'' he wrote.
Created by the civil-rights legislation of the 1960's, the office was charged with enforcing civil rights in programs that received federal funds.
The former Secretary recalls that his selection of Tatel for the office was meant to signal that "H.E.W. was once again serious about civil rights.''
Tatel has been credited with improving the office's efficiency, reducing its enormous backlog of cases, and restoring its reputation as a strong enforcement agency. But his stewardship of the O.C.R. was not without controversy.
One of the first thickets he walked into was the long-running effort to prod the Chicago school system into developing a desegregation plan. Somehow, while Boston and other Northern cities had been forced to adopt busing for desegregation in the 1970's, Chicago had successfully dragged its feet on integration.
Califano, a former aide to President Johnson, recalls Mayor Daley using his political clout to get the federal government to back off a threatened desegregation lawsuit in 1965. Negotiations for a settlement that had begun under Johnson were still going on when Califano and Tatel took their posts at H.E.W. in 1977.
Tatel spent months negotiating with Chicago school officials over a voluntary-desegregation plan. They reached agreement on a teacher-assignment portion of the agreement, but became hung up over the O.C.R.'s demand that no Chicago school's enrollment be more than 50 percent white. (The city's schools were about 80 percent black and Hispanic by that time, but eight out of 10 pupils attended schools that were either 95 percent black or 95 percent white.)
Chicago School Superintendent Joseph Hannon criticized Tatel at the time as "regulating for the 80's with a 1950 mentality.''
The Chicago case eventually was turned over to the Justice Department, and Assistant Attorney General Drew S. Days 3rd (now the U.S. Solicitor General) reached an agreement with Chicago officials in 1980 for a voluntary plan.
After President Carter fired Califano in 1979, his successor, Patricia Roberts Harris, criticized Tatel for showing a lack of "political sensitivity'' in the Chicago case. Tatel says Harris was a tough Secretary who was committed to civil rights.
Tatel was also integrally involved in two other high-stakes battles during his tenure at the O.C.R. One centered on the desegregation of North Carolina's system of higher education, an episode that involved numerous acrimonious meetings between Tatel and state officials, with no settlement during his tenure.
The second involved Carter Administration infighting over the federal government's position in Regents of the University of California v. Bakke, the closely watched Supreme Court case dealing with affirmative action in higher-education admissions. According to Califano, he, Tatel, and others had to battle career lawyers in the Justice Department who wanted to submit a brief that would oppose race-conscious admissions. Califano's and Tatel's views essentially won the fight in the Administration, but the Supreme Court's eventual ruling in the case dealt a blow to affirmative action.
Tatel left H.E.W. in October 1979 to return to Hogan & Hartson.
Joe Rauh, the civil-rights stalwart who had hauled federal officials into court to try to get them to act faster to desegregate the higher-education systems of the Southern states, nonetheless told The Washington Post in 1979 that Tatel was "the best thing that ever happended to civil rights at H.E.W.''
Tatel says he found it "very rewarding'' to "take an agency that had been badly treated, and restore it to an active, effective agency.''
One of Washington's largest law firms, Hogan & Hartson is housed in an I.M. Pei-designed building just a few blocks from the White House. As with other big law firms in the capital, a palpable sense of power pervades its corridors.
Outside a conference room, a corporate lobbyist greets an acquaintance at the firm, and they relate their experiences as Congressional aides. They are heading into a meeting about environmental regulation.
Just then, Tatel comes to escort a visitor to his office. He does not have a traditional desk, but a square table with legal briefs and education publications laid out in a neat stack. A wall map of the United States has pushpins indicating where Hogan & Hartson has education clients: Cleveland, Milwaukee, Kansas City, Mo., Denver, and other cities.
After leaving the H.E.W. job in 1979, Tatel returned to the law firm with the novel idea of setting up an education practice.
The education group has slowly added lawyers over the years, and now has about 15 working full time. The group represents school districts, colleges and universities, such organizations as the Council of the Great City Schools and the National Board for Professional Teaching Standards, and Education Alternatives Inc., a for-profit firm that manages public schools.
Tatel says that while much of its work for school districts involves desegregation, the firm is doing a growing amount of work in such areas as school finance, educational adequacy, and special education.
"It's unique among Washington law firms,'' he says. "All firms like to create different identities, and representing large city school districts is something the firm likes.''
Bob Odle, the managing partner of Hogan & Hartson, says the education group "has been a very exciting practice for the firm.''
"It's interesting to have people around doing something different,'' he adds. "The diversity angle has contributed to a very interesting workplace.''
And while he won't discuss the firm's income, Odle says the education group has been "productive,'' meaning profitable.
Typically, Hogan & Hartson handles major legal issues that fall outside the expertise of most school districts' in-house lawyers or local law firms.
Tatel says the group "is very attractive to young lawyers.''
"A lot of people like the idea that ... they are representing a school system of thousands of poor children,'' he says. "It's a very sympathetic client.''
The group includes a few former educators, such as former school principal Maree Sneed, who switched to law several years ago and joined Hogan & Hartson in 1985.
"I didn't plan to go into education law in law school,'' she says in a phone conversation from Cleveland, where she is visiting a client. "Civil-rights issues were something I had always been involved in. I did my dissertation in education on changing racial attitudes. It just seemed to fit together.''
Patricia A. Brannan, a partner in the section, says she enjoys dealing with "cutting-edge issues'' that come up in the firm's education cases.
Tatel, she says, is "extremely disciplined. He can be a very warm and funny person, but you know you aren't going to get away with mushy thinking.''
Hogan & Hartson also works closely with such education consultants as David W. Hornbeck, a former Maryland state schools chief, and Floretta Dukes McKenzie, a former superintendent of the District of Columbia schools. At one time, the firm had a formal partnership with McKenzie, who now has an independent business in the same building.
Tatel himself works with several of the firm's school district clients, including Milwaukee. He also spends a good portion of his time working with the Spencer Foundation, the Pew Forum on Education Reform, the National Lawyers' Committee for Civil Rights Under Law, the Disability Rights Council, and other such groups.
Although districts usually figure in school-desegregation suits as defendants battling black citizens' groups over the details of integration plans, that usually has not been the case with Hogan & Hartson's clients.
In fact, the Milwaukee district went on the offensive in its lawsuit against suburban districts and the state. The case resulted in an unusual metropolitan desegregation settlement that allows city students to enroll in suburban districts.
Specter, the lawyer who represented eight suburban Milwaukee districts, credits Tatel with "always keeping things moving forward'' during the lengthy negotiations to settle the suit. As a result of the negotiations, "we found a way to enhance racial integration in the Milwaukee area,'' Specter says.
The Milwaukee case is one variation of a desegregation strategy that Hogan & Hartson has championed elsewhere that might be described like this: Develop a plan for integrating an urban school system, then try to get the state government to pay for as much of it as possible.
A 1987 paper co-written by Tatel amplified on the strategy: "State participation in a court-ordered desegregation remedy often provides a desperately needed boost to an urban district where educational offerings, as well as the system's reputation, have suffered from state-imposed racial isolation.''
The most-watched experiment for this strategy has been Kansas City, Mo. Hogan & Hartson became involved in the district's case in 1985, after U.S. District Judge Russell G. Clark had ruled that Kansas City and the state of Missouri were jointly liable for desegregating the city's schools.
Judge Clark's desegregation order for the city did not rely on mandatory busing or opening the suburban schools to city students. Instead, he ordered massive improvements to the city schools, including building repairs, new magnet programs, and a $32 million, state-of-the-art Central High School that houses a computer magnet school and a classical-Greek program designed to promote mind and body with such enticements as an Olympic-sized swimming pool.
The judge also has required the state to pay the bulk of the program's costs, now estimated to total more than $1.3 billion. The case has led to numerous appeals to the U.S. Court of Appeals for the Eighth Circuit and the Supreme Court, perhaps insuring work for Hogan & Hartson for years to come. (In a major 5-to-4 ruling in the Kansas City case in 1990, the High Court upheld the authority of federal judges to order tax increases for desegregation.)
Now that the new Central High School has been open for a few years, and other magnet programs designed to lure suburban students have been put in place, observers of the program have begun to question its effectiveness.
"They got what they wanted,'' says Mark J. Bredemeier, the general counsel of the Landmark Legal Foundation in Kansas City, which has represented local taxpayers who are opposed to the massive desegregation plan.
With Central High, the plaintiffs "got the Taj Mahal of public school buildings in the United States, but the minority [enrollment] percentage continues to go up, white enrollment continues to go down, and test scores are flat,'' Bredemeier charges.
David Boyd, a Washington lawyer who has represented the state of Missouri before the Supreme Court, says Hogan & Hartson "has done a very good job representing the school district.''
"They have done a very effective job with a novel remedy,'' he adds. The firm's legal fees have "certainly been dollars well spent for the school district in terms of what the remedy got them.''
A study released last month by the Harvard Project on School Desegregation says the Kansas City remedy has resulted in only modest gains in academic achievement and racial integration.
Tatel declines to discuss the Kansas City case, but other Hogan & Hartson lawyers defend the plan.
"At this point, we have to be really careful about prematurely judging a mammoth effort to turn around a school district,'' Patricia Brannan says. "It's just unrealistic to expect that in this period of time we would see results much greater than we have seen.''
For David Tatel, the issue of school desegregation is a defining one. He has committed much of his adult life to the nitty-gritty of making such plans work, and he has urged the Supreme Court, and the nation, to maintain a commitment to the movement's goals.
Yet, he is also painfully aware that there are competing interests. He acknowledges, for example, that the school-reform and school-desegregation movements are in potential conflict, since they represent different constituencies.
"School desegregation is largely sought and defended by the minority community, whereas school reformers tend to be white, middle-class, and suburban,'' he wrote in the Stanford Law & Policy Review. Such reforms as open enrollment can destroy the gains of mandatory busing for integration purposes, for example.
But recent desegregation remedies "look more and more like school-reform initiatives,'' he says. Reformers should emphasize the contributions to desegregation that their proposals would make, he argues.
Programs designed to improve educational opportunities for all students, including minority students, can help eliminate the vestiges of segregated school systems, Tatel believes.
Four years ago, in the Supreme Court case of Board of Education of the Oklahoma City Schools v. Dowell, which considered when desegregation orders against districts should be lifted, Tatel urged the Justices not to back off their history of support for such plans.
"Thirty-six years after Brown we remain firmly committed to its principles and believe this Court should not back away from them,'' he wrote in a friend-of-the-court brief on behalf of urban school districts.
Another excerpt from that brief could well sum up Tatel's attitude toward school desegregation.
"We have made an enormous amount of progress toward [the] goal'' of
eliminating segregated schools, he added. "But the job is not yet