EdFix Episode 41: Justice in Focus - Judge Tatel’s Memoir and the Future of Education Law

Transcript

JUDGE DAVID TATEL:
When these cases were litigated, the courts would defer to the agency interpretations of the statute because, presumably the agency had some expertise about education and knew how to promote equal opportunity in the field of education. Judges don't know how to do that. But educators do, and the courts relied on that. Well, now that's over. 

MICHAEL J. FEUER:
Welcome to EdFix, your source for insights about the promise and practice of education. I'm your host, Michael Feuer, the Dean of the Graduate School of Education and Human Development at George Washington University. And with apologies for this raspy voice, it must be allergy season. I am delighted to be speaking today with Judge David Tatel recently retired after 30 years on the United States Court of Appeals for the DC Circuit. We're going to talk about Judge Tatel's new book today, but let me introduce him first and by just saying that Judge Tatel was appointed to the court by President Bill Clinton in 1994 to the seat that had been previously held by Justice Ruth Bader Ginsburg.

Prior to his time on the bench, Judge Tatel worked as a civil rights lawyer in private and government positions where much of his career focused on improvement of educational opportunity and access to justice. He was a director early on of the Chicago Lawyers Committee for Civil Rights under Law. He was a director of the Office for Civil Rights in what was then the US Department of Health, Education and Welfare during the Jimmy Carter administration. Judge Tatel has been involved in issues of science and science policy through service on the National Academy of Sciences Committees, which we will chat about briefly a little bit later on.

Usually in these podcasts, I save for the end a little bit of time to ask our guests to say something about themselves on a personal level that gives our listeners a little bit of a sense of where they were and how they got to what they're doing and what it was in their lives that connects to their careers. In this case, I'm inverting the order, and I'm going to start, Judge Tatel, by mentioning the name of your new book, Vision, A Memoir of Blindness and Justice. And I want to start with the question about the personal part of that, shall we say vision thing. And then we'll get to what it means in terms of your views on the courts, on justice, on education. Judge Tatel, welcome.

JUDGE DAVID TATEL:
Thank you, Michael. Good morning. That's a big first question you just asked. So, I grew up in the 1940s and fifties in Silver Spring, Maryland. Went to high school there. I went off to the University of Michigan, then the University of Chicago Law School, and then picked up the career that you just described. During that time, I was developing at a very early age, some visual problems. When I was a little kid I couldn't see at night or I had difficulty seeing in the dark, and no one knew what the problem was. Some people said to me, "Well, nobody could see in the dark. What's the big deal?" The doctors thought it was more serious, but they didn't know what it was. They told me to eat carrots, which I did.

And then by the time I was 15, which was 1957, my mother took me to the National Institutes of Health where I was diagnosed with a genetic eye disease called retinitis pigmentosa. They didn't know much about it then all they could tell me was that they knew my sight would slowly decline, that it would plateau from time to time and no one knew where it would end up. At least that's what I was told in 1957. I was pretty much fine from then until my mid-thirties. The night problems became more serious. Slowly I noticed decline in peripheral vision.

I tell the story in the book about the efforts I made, first to cover up my declining sight. As I explained in the book, what fifteen-year-old wants to be different than his friends? And I didn't want to be different, and I'm sure there was some shame or embarrassment in it. And as I got older and went off to law school and began to practice law, I feared that visual disability and possibly ultimate blindness would adversely affect my employment opportunities. By that time, I was determined to be a civil rights lawyer, and that's what I wanted to do. And then by the mid-thirties, it became impossible for me to cover it up anymore. I couldn't see well enough to read and getting around by myself, at least traveling, was not especially safe. And so, I began to, I learned braille. I started using a reader, but I still never talked about it.

I didn't want to be known as a blind lawyer. I just downplayed it as much as I could. And I included all of my tricks to function safely and the book is full of them. Some of these stories are funny, some of them were looking back on them kind of sad. Anyway, by the time I was late thirties, I finally bit the bullet and started to use a mobility cane, which made me far more visible as a blind person. But even then, I didn't want to discuss it, especially when I went on the DC circuit. When President Clinton nominated me for the court, he never mentioned that I had a disability of any kind, which is what I wanted. But of course the press reported it as first blind appeals court judge. And in my 30 years on the court, Michael, I didn't talk about it very much either.

I functioned pretty well. I had lots of techniques that I talk about in the book, but not until I wrote this book that I really begin examining why I did what I did. And one aspect of this book is my effort to explain to myself and also to my readers why I did what I did, how I functioned as a person with declining and ultimately no sight. And in the end, I hope I wrote the book in the end because I hope that story will be inspirational to people who are going through what I went through. One of the things, and then I'll stop. One of the things that readers will see in this book is how important role models were to me.

Civil rights lawyers, judges, these were my role models, very important to me. But I had no blind role models. None of the judges were blind, none of the lawyers were. And so, when I was in my thirties, it wasn't unreasonable for me to think, I need to cover this up as much as I can. I didn't think that somebody losing their eyesight would be able to succeed in this area I wanted to function. And so, I mentioned that because in a way, I hope that this book and my story will give young people going through what I went through, the inspiration that I didn't have at that time.

But I also, hope, and maybe even more that this book will be read by people without disabilities and whether they're hiring partners in law firms or administrators in school districts or universities, I hope they'll read this book and see that when they're making an employment decision and they have two or three candidates and one of them is blind or has another disability, that they make their decision based on the merits. I have a number of great blurbs on my book. One of them is by Tim Shriver, who's the chairman of the Special Olympics. And I think that blurb is very symbolic for me because I hope this book will play a role in the field of law and education that maybe the Special Olympics does nationwide in terms of demonstrating that people with disabilities can function at the very highest levels.

MICHAEL J. FEUER:
Well, since you mentioned it, I'll just take the liberty of reading the first part of Tim Shriver's blurb: "The deepest lesson of David Tatel's journey is that we can't avoid our challenges, but only survive by meeting them." Talk about inspiration. I want to pivot now to the other part of the double entendre and the title of your book, which is this word vision, and ask you now to give us, if you can, a little bit of a sense, and for those who I know will want to buy the book and read it and get the full story, a little bit of a preview of coming attractions here, but say something about your views of where we've been and where we are as a society steeped in the principles of law.

JUDGE DAVID TATEL:
So, there's two parts of the book that I think are responsive to your question, Michael. One is I spent quite a few chapters describing my work in the field of school desegregation. And I explain how historically our country went from in the sixties and seventies and maybe even early eighties, our country, with a few glitches, moved dramatically towards equal educational opportunities in our schools. And that was because the federal courts and the Congress and the executive, the president, all three branches of the government were in sync and they all worked together. And the result was pretty dramatic over those decades in terms of reducing segregated conditions in our nation's schools and improving educational opportunities for black kids and other minority kids, and especially poor minority kids.

But beginning in the late seventies and eighties, all three of those branches of the government essentially shifted sides. And the result by the nineties and today is that the level of racial segregation in our public schools is almost as bad as it was at the beginning. And it's worse now in many ways because the segregation is not just between blacks and whites, but it's between whites and poor blacks. And to me, that's the first sort of failure of the rule of law that I described in my book. The second one is much more current and I talk in the last two chapters of the book.

One is called “The Future of the Planet,” and the next one is called “The Future of Democracy,” about the way in which the current Supreme Court has been, to put it in its clearest terms, chipping away at the separation of powers, increasing its power at the expense of the two elected branches of government. And in the process severely limiting the ability of the government agencies to fulfill their missions in terms of protecting human health and safety. And in terms of the government's ability to protect the right to vote. I suppose and just to summarize, there are two instances in which the book relays my concerns about failure of the rule of law in our country.

MICHAEL J. FEUER:
Since you mentioned the Supreme Court. And you very, I think, admirably distinguish in your book concern for the Court as an institution and the way it has possibly been changing from whatever views you might have of individual justices. And I think that's a very significant nuance in the book. I'd love to hear you say a little bit more about the institution. What do you think is either at the origin of what many people view as a new tilt or a returning tilt in one direction or another? Help us unpack a little bit this idea that the institution has been in a bit of a transition. Maybe that's an understatement.

JUDGE DAVID TATEL:
Are you asking me why that's happening?

MICHAEL J. FEUER:
Both why and examples, and I'll then give you one example that I would love to hear you talk about because it relates to a big problem we're dealing with in education, and that's interpretation of the 14th amendment as it relates to something like preferential admissions. More generally, what is your sense of why and how the institution is moving?

JUDGE DAVID TATEL:
Well, why don't we use as an example, just that. Now we can, for both parts of your question, we can talk about the same thing, which is the 14th amendment.

MICHAEL J. FEUER:
Great.

JUDGE DAVID TATEL:
So, starting in the 30 years, 30, 40 years ago, partially in reaction to Roe v. Wade, to the defeat of Robert Bork, to other developments in the courts, a conservative legal movement developed under the direction of the Federalist Society, a very effective organization. And it was determined to change the direction of the federal courts, especially the Supreme Court. And it focused on a number of issues: overruling Roe v. Wade, weakening the federal administrative state, eliminating race as a factor in public decision making.

And their efforts were remarkably successful through the development of, in beginning in law schools, training of young lawyers and conservative thought. Over the past 30, 40 years, they succeeded in transforming courts. And it culminated with President Trump when he appointed three people to the court who had been vetted by the Federalist society, not primarily because they were the best judges in their country, but because the Federalist society thought that they would reach the right results. And Roe v. Wade is a perfect example. Trump campaigned on overruling Roe. He announced the judges he would appoint to the Supreme Court if he was elected, he was elected, he appointed them, and they overruled Roe. So, same thing with the administrative agencies. That was part of the campaign. And at the end of this term, the court issued a series of decisions that severely, that are likely to severely limit the ability of EPA and other federal agencies to fulfill their mission. So, basically what we've had in the past several decades is a major effort to dramatically shift the direction of the federal courts, and it succeeded beyond anybody's expectations.

MICHAEL J. FEUER:
Relating this to the recent decisions on preferential admissions, the result was also then somewhat predictable from this pattern. What's your advice to institutions of higher education that still care deeply about having a diverse environment?

JUDGE DAVID TATEL:
Well, just half an hour ago, Michael, I heard on the news that MIT just reported it's the racial composition of the first class that it admitted without affirmative action of any kind, and the dramatic drop in the number of percentage of blacks in the MIT entering class, and a dramatic increase in the percentage of Asians. I mean, it is exactly what Harvard and UNC, they were the two universities in the case, well, all universities predicted would happen if the Supreme Court overruled Bakke the decision that allowed universities to take race into account to promote a diverse student body. So, that's now the law of the land.

What's my advice? My first piece of advice is universities and school districts should not try to find ways around this decision, that is find ways to take account of race in different ways. This is the law of the land, and whether public officials agree with it or not, they have an obligation to obey it. And to me, that means that universities have to find ways to diversify their student bodies that does not account for race and isn't viewed as a subterfuge for taking account.

People say, well, we should take account of economics, socioeconomic background. Yeah, taking account socioeconomic background, really important. And I'm sure universities have been doing it for decades. It's not like it's something new. The problem with socioeconomic background in terms of affirmative action is that there are more white people who are poorer than black people. So, it doesn't necessarily produce the result you want. And I think what I just reported about MIT proves it. I'm sure they really worked hard. They pushed the socioeconomic button really hard and look what happened.

I think one of the most important things universities can do here is recruiting. There's no reason why they can't recruit more heavily in black areas, because I mean, we know that at many places in the country, people just don't know about their higher education opportunities. So, I think there's lots of things that can be done. I don't think they'll be as effective as they've been in the past, but universities have to redouble their efforts and they have to redo it. They have to do it in a way that's lawful and faithful to what the Supreme Court has ruled.

I've read a lot of the briefs in the student's prepared admission case. That's the case that overruled Bakke. Oh, by the way, I say overruled Bakke. You wouldn't know that from reading the court's opinion. The court does not honestly say that it's overruling, doesn't honestly acknowledge that it's overruling Bakke, but it did. When you read it, when Harvard and UNC, those are the two universities where they were taking account of race, their argument was that they were looking at a large pool of people who were qualified to succeed at their universities, but they couldn't admit them all. And they were picking among students who were qualified to succeed at the university who had their necessarily academic record to succeed. And they were giving many factors. They were using other factors to ensure balance of geography, economics, and race.

So, these factors weren't separating out qualified and unqualified students. They were being used in a pool of students that were already, by the university's own standards, qualified to succeed at the university.

MICHAEL J. FEUER:
You had an interest in, shall we say, the hard sciences after which you went into what I call the very hard sciences. But say a little bit about science and the law.

JUDGE DAVID TATEL:
Let me go back and tell a story. Again, a story I tell in the book. So, my father was a scientist and he used to take me on scientific expeditions with him. And when I was 15, I went on a month long expedition with him to the Peruvian Andes. This was in 1957, and they were doing seismic research on the Altiplano. That's the high plane that stretches through Peru and Chile. And there was a group of scientists, and they would fan out every morning on the Altiplano to do their scientific experiments. And they created a little experimental station for me, the 15-year-old. So, I was doing my own scientific expeditions.

And then every night we'd come back to the hotel and the scientists would sit around talking about the data they had found and what it meant. They had a hypothesis, just like scientists do. They had an idea about what they were looking for, and they were discussing their data and arguing one way or another about what it meant. So, yes, I was interested in science, and in fact, when I went off to Michigan, I went off to be a scientist. But I like to say I was hijacked by the sixties and the Civil rights movement and decided that I wanted to be a lawyer. But I've continued my interest in science, and as you mentioned in your opening statement, I've served on the National Academies of Sciences committee on science, technology and law that I've co-chaired for some 10 years.

But going back to that 15 year old's experience. During my 30 years as a judge, hearing big environmental cases, really big cases involving nationwide emission standards and climate change, and all of the big tricky scientific issues, cases whose the evidence in them is deeply scientific, full of scientific studies of all kinds in these cases. It constantly struck me that I'm doing a lot of what my dad and his friends did back there in 1957. They were scientists, I'm a judge, they were applying scientific principles, I'm applying judicial principles. We're both interested in facts. They were finding the facts through scientific experimentation. The facts came to me from administrative agencies and trial courts, and they were applying scientific principles to the facts they found in reaching conclusions. And I'm applying legal principles to the facts in reaching legal conclusions. So, I try to tease out throughout the book the way in which these two areas seemingly so different, science and law, actually to me seemed quite similar in many respects.

MICHAEL J. FEUER:
I'm going to press on this issue of science with a more specific example, which you talk about in the book, and I know means a lot to you. And that's the recent Supreme Court decision involving an important environmental protection policy problem. This Chevron decision is interesting in and of itself, but I think it also has implications for other things that even relate to the world of education.

JUDGE DAVID TATEL:
Big consequences for the world of education. Yes.

MICHAEL J. FEUER:
Tell us more.

JUDGE DAVID TATEL:
So, to simplify Chevron, probably to an extent that I hope doesn't make it not understandable, but the way our administrative agencies work since the new deal, Congress passes laws like the Clean Air Act, Food and Drug Act that are general in terms of setting goals, and they create an agency to interpret and enforce those laws. And that's what our administrative agencies do. BPA, the Department of Education, all the agencies are applying the laws that created them to accomplish their mission. The Chevron Doctrine was a Supreme Court case from the eighties, which said that courts have to accept an agency interpretation of the law it enforces if that interpretation is reasonable, unless the law is clear. If the law is really clear and the agency's violating the law, then that's the end of the matter. The court just validates it. But if a law is ambiguous, as many laws are, they're not crystal clear, Congress writes in general terms, then the agency's interpretation of the law controls.

And over the past several decades, this rule, Chevron, it's named after the case, Chevron v. Natural Resources Defense Council. It in my mind, and I spent 30 years on a court that probably did Chevron more than any other court in the country because my court reviews most of the work of federal agencies. I thought it did a really good job of ensuring that agency expertise could be harnessed in the mission of the agency and develop good emission standards, for example. Yet it preserved the right of the courts, the ability of the courts to rein in the agencies when they violated the law. So, that's what Chevron was all about. Supreme Court just overruled that, and we won't get into the details about that. But now the courts will have far more responsibility and power to interpret law than the agencies, which means that you're going to have, instead of experts in say, environment, deciding what emission standards are, you're going to have generalists federal judges like me making those decisions.

Now, we're not quite sure how this is going to work. It's going to take a good decade to work out exactly agency how much space there still is for agency expertise. I suspect there's more there than many people fear, but there's no question that this is going to cut back significantly. So, in the field of education, you have a perfect example of the problem, Title IX. Title IX is only, I don't know, 20 words, I don't have it in front of me. It says, institutions, education institution who receive federal funds cannot discriminate on the basis of sex. That's all it says.

And so what does that mean in the real world? Well, it happens to be Michael, that when I started at OCR in 1977, that was my responsibility was we were the first ones to start implementing Title IX because the Nixon and Ford Administrations had refused to do it. So, I developed the first program to interpret and implement Title IX, and the regulations go on for pages because there's so many gaps. What does it mean in the field of athletics, for example? Well, we had to work all that out. So, here we were an agency interpreting title IX, and then when these cases were litigated, the courts would defer to the agency interpretation of the statute because presumably the agency had some expertise about education and knew how to promote gender equality, equal opportunity in the field of education. Judges don't know how to do that, but educators do, and the courts rely on that.

Well, now that's over. And now we have this huge battle, and I'm not going to get into it in this podcast. Agency just issued new regulations under Title IX to deal with athletics, transgender students and things like that. And it involves extensive agency interpretation of that statute. And now that interpretation will gain little respect in the courts, and you'll have judges making these decisions. Now, the judges might be persuaded by what the agency said, but they don't have to accept it anymore. So, it's going to have a dramatic impact in the field of education. And Title IX is just not the only one. There are many other areas in which the Department of Education is interpreting general federal laws with extensive regulations and policy statements, and now those will have a lot less credibility in the courts than they did before last June.

MICHAEL J. FEUER:
Judge Tatel, what a great pleasure and honor to talk to you. I'm going to mention Edie Tatel also, who is featured in the book because she has featured in Judge Tatel's life as a partner and soulmate, and someone whom I've actually gotten to know a little bit over the years. And I just want to say thank you to both of you. And then more recently, I've had the pleasure of even meeting the newest member of the team, this absolutely charming German Shepherd named Vixen.

JUDGE DAVID TATEL:
Yeah. Well, just to say, I mean the book, it's my memoir, but it's really a memoir of my life with my wife Edie. It's a memoir of the two of us, of our marriage, of how we dealt with blindness. And at the end of the book, entering the memoir is my guide dog, Vixen. The last chapter of the book is called "The Dog That Changed My Life." And that is not an overstatement, Michael.

MICHAEL J. FEUER:
All I can say, Judge Tatel, is that you have changed many people's lives.

JUDGE DAVID TATEL:
Thank you.

MICHAEL J. FEUER:
We wish you continued good health and all good things. Your inspiration will last us many lifetimes. And I just want to thank you on behalf of EdFix, and I look forward to seeing you. And when I do, I suspect you'll say, Michael, it's good to see you again.

JUDGE DAVID TATEL:
Well, we use words differently, but Michael, I've enjoyed our conversation, just like I've enjoyed all of our conversations the years. So, thank you.

MICHAEL J. FEUER:
This has been a fabulous conversation with Judge Tatel. I hope our listeners are inspired, not just by his words, but by the possibility of reading Judge Tatel's words. The book is called Vision, A Memoir of Blindness and Justice, published by Little Brown, 2024, available from all the usual booksellers, including Amazon of course, or Little Brown directly or other booksellers. Politics and Prose and other independent stores carry the book. And it's also available in audio. I don't usually do this with the podcast, but I give this book the equivalent of a hundred Rotten Tomatoes.

To our listeners, if you've enjoyed this episode, you can subscribe to the EdFix podcast on Apple Podcasts or Spotify, iHeartRadio and others. We have a website called edfixpodcast.com. I am ever so grateful Touran Waters, our executive producer, engineer, technical guru, casting director, and all-purpose helper. 

Thank you again, Judge Tatel.

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