Listen: Edgar Cahn '56 on Community Empowerment and the Law
Edgar Cahn '56
Edgar Cahn '56 discusses his 50-plus year career as a public interest lawyer in both the criminal and civil justice arenas. Read more about his talk in the Daily Gazette.
In 1964, Cahn and Jean Camper Cahn '57 co-authored a famed Yale Law Journal article that directly led to federally funded legal services for the poor, which today provides legal counsel to more than a million citizens annually. The Cahns pioneered legal clinics for the poor, now staples in law schools throughout America.
Cahn's social justice work includes the invention of Timebanking – a formal system to allow recipients of services to pay back, or pay forward, the cost of services received with their own volunteer services. He also founded a youth court in Washington D.C which kept 60 percent of all nonviolent criminal offenders out of the juvenile justice system. Cahn's Racial Justice Initiative led to public hearings on alternatives to detention in light of the “kids for cash” judicial scandal in Luzerne County, Pa. Earlier this month, Cahn was honored at the National Constitution Center as the first recipient of the Education Works Social Justice Award for his life’s work.
Cahn, the Distinguished Professor Emeritus of Law at the University of the District of Columbia, graduated from Swarthmore with a B.A. in English literature. He later earned an M.A. and Ph.D. from Yale University and a J.D. from Yale Law School.
Edgar Cahn: It is great to be here. I met my wife, who became a Swarthmore graduate too because I was dating her roommate at Northwestern, and she was writing the letters. I could never understand why the dates were so dull, and the letters were so fantastic. She then got rheumatic fever, transferred here, and that began a rather long story.
Then there was another figure here at Swarthmore, a Paul Hillersacher, who was a political science professor. After I graduated, I didn't know where he had gone. Then I met him when Bobby Kennedy sent me to an interdepartmental meeting to talk about juvenile justice, and there he was. I said, "All of these programs are about quote, 'Helping poor people', but did it ever occur to you that maybe they have a voice, and they have something to contribute? We got to stop talking about them, or thinking of them in terms of their needs because their needs and their problems are maybe 5 or 10 percent of who they are. Whose looking at the 90 percent of all they can be?"
Well, I asked to be put on the screen to bring that home is, this is jumping forward, but I decided, at some point, and we'll get to that point, that we are locked into a way of thinking defined by money, and that in case you hadn't noticed, money defines value by price. Not surprise. Price defines it by supply and demand. If it's scarce, it's valuable. If it's abundant, it's cheaper. If it's really abundant, it's dirt cheap or worthless. Which means, I suddenly realized being a human being then, is worthless. Every universal that enabled our species to survive and evolve, we have devalued. Not a smart way for a species to continue surviving. I said to myself, "Maybe we need another medium of exchange that values what it means to be a human being".
There are things we do, believe it or not, that do not need a PhD. Caring is one, learning is another, civic engagement is another, saving the planet might just be another one, but none of those are valued by the market unless they're made scarce. I thought, we need another way of thinking about people. I know, and you may know that Gandhi was a lawyer. I don't know how many cases he won, and I don't care. Mother Theresa was a teacher. I do not know the test scores of her students, and I don't care. I'm even told that Jesus was a carpenter, and I don't know how good a carpenter he was, and I really don't care.
We've got to understand that there are domains that are not about money. That doesn't mean that money is inherently bad, but it does mean if we're locked into a definition of value defined by money, and return on investment, and cross benefit, and all the kinds of things that you are being trained to do, we are in fact, failing to value the things that maybe we really value.
I'm now already off topic, so let me get back on topic and say, I'm supposed to live in some memories. I don't live in the past very much. I live in tomorrow and the next day. I'm in a time warp because I just came back from New Zealand, so in New Zealand, I'm already speaking yesterday, okay? It may catch up with me, but we'll see.
I do want to say that coming here at Swarthmore in the 50's, and dating, then being engaged, and then marrying a woman who was African American was trouble making, and was viewed in part by some members of the administration as trouble making. Yes, it is true that we did a boycott on the barber shop. Yes, it is true that we picketed some of the fraternities that existed back then. Yes, it is true that I organized a boycott and some other things so that we could get back the Thanksgiving holiday that we had before the war, so that we could actually have that Friday, as well as that Thursday off. I was, back then, something of a trouble maker, I guess.
Since my father had taught me about justice, and he taught me that all people were equal, I sort of took that pretty literally. A little bit too literally for them initially. You see, he taught me a definition of justice that I want to share with you. If you're taking notes, this is one that's maybe worth knowing about. He said, "Justice, as an abstraction, as an ideal, is too plutonic, too perfect, too grand for human beings to comprehend". I didn't like that. He said, "But, I think we are all endowed with a sense of injustice, with an ability to recognize and respond to disparities, which we should not tolerate, to respond and to recognize unfairness". He defined justice as the process of either preventing, or remedying whatever would arouse our sense of injustice. To me, my life has been ... He said, you'll never get there, but you'll be on the right road. Stay on that road.
That's what I tried to do, and sort of my life keeps being, keep trying. It's not enough, so keep trying the next thing. Keep trying the next thing. What you'll hear about time banking is it's about time. We had a medium of exchange that responded to, I think, what is a pretty universal unmet need. I think we all want to feel that we matter. We all want to feel that we could make a difference. If we allow that to be defined by money, we're in serious trouble because in effect, we are going to discard people who, in fact, could give a great deal. What you'll hear from me tonight is some of the discoveries I made that I describe in my book, "No More Throwaway People". That's really my commitment.
I'm hoping I'm back at a place where I think those values, those commitments have a historical home, but also, nurture those values and those beliefs. We'll talk a little bit about that because I also think that academia does not adequately reward those, or let the knowledge that comes from interaction and commitment, we sort of say, "That's nice extracurricular activities". It might also be called, learning and living. Maybe we need to think about both.
That said, I'll simply recount that my wife and I had some real problems because our marriage was illegal. Our engagement was frowned on. Some of you may have heard of a singer, Paul Robeson. Paul Robeson was her godfather. We brought him to a place called Swarthmore when he was on the McCarthy list as a communist. We were very proud that Swarthmore would host him at the height of the McCarthy era. I know I'm going back into history, but I'm not yet ready for a museum. I think that part of the journey that has kept me going has been to stand up for very simple, very basic truths.
I went into English literature here at Swarthmore because every day seemed like a fight about my engagement, about my beliefs. I suddenly realized that I, in being such an advocate, I began to see people only through on lens. Which side of the line are you on? Are you prepared to fight for these things? Or do I have to watch you because you're going to split? I suddenly realized that in the process of fighting for good things, I was losing the capacity to feel and respond to human beings, but even the capacity to respond to the beauty of this campus, to the beauty of the daffodils, to the beauty of the rhododendron and the azaleas. I thought, I need to heal myself, so I went to literature. I transferred into literature here and I went to Yale graduate school where they told me that nobody had tested as high as I had in understanding, and as low as I had in knowledge.
I proceeded to do what you do in graduate school, which is to study like hell, and come up with some creative theories, and that gave me a Fulbright Scholarship to Cambridge University. I came back to Yale, was number one in my class, but they told me because of my marriage, the only job they could recommend for was teaching composition and spelling at a military academy, and maybe they could get me a job doing that, at which point I said, "I still believe in the values, but if that's what you do with values, I'm going to have to fight for them, and I don't want to be an amateur", and I got up, walked out, and went over to the law school and applied that day.
I had already been ... My wife graduated a year behind me at Swarthmore. When she came out, I said, "You need to go to law school". This is a woman who when she married me, also converted to Judaism. I thought I was bringing home a good Jewish girl, and I didn't understand the problems my parents were having. She could cook! What more could you ask for, right? Anyway, she became, I think, the first Jewish, pregnant, African American law student that Yale had ever seen. Our oldest son was born the first days of her first exams at Yale, so I had to sit in for some classes while she did something called, having a baby, and I knew a little bit about the law school.
I came out of, in the first year of law school, there was a summer internship, and she lived in Baltimore. In Baltimore, just walking down the street together, we could get arrested. We did get arrested. I know those are ancient days, but they're still very alive to me, that you did not go out on the street, and you certainly did not go out at certain times a day.
I think that ... When we went to Baltimore for that summer, I got an internship at what was then the department of health education and welfare, and that was when Kennedy ... That was before Lyndon Johnson president, and he had set up an interdepartmental committee with Robert Weaver and some other folks. I attended that and they heard I had a PhD in English, so they said, "Of course. You could write speeches". I had never written a speech in my life. They started saying, "Will you write one for Lord Owen? Will you write one? This sounds pretty good. You got a pretty good reaction. Would you write one for the attorney general?" I said, "Sure".
The first speech that I wrote for Robert Kennedy as attorney general was when he went to Missouri Bar to say that the cases they were bringing to stop integration of Brown versus the Board of Education, at some point constituted a dereliction of their responsibilities as officers of the court. You'll have to understand that an attorney general telling lawyers not to act like lawyers is a little bit difficult. Basically, you see, because a lawyer has a duty quote "to zealously represent his client, or her client". The clients they had were frankly Ku Klux Klan and segregationist groups. They were doing what lawyers do, zealously representing.
He said, "The way you do that to stop a decision is you say, 'Yes, that school that those seven kids when to in Brown, that was unequal, but our schools are equal'". Well, that was just a case about schools. It wasn't a case about swimming pools, or where you go bowling, so they were bringing case after case after case to prevent implementation of Brown. He just simply called them out and said, "You are not just lawyers. You are not just a gun for hire. You are also officers of the court with a duty to advance justice. At some point, you have to understand that courts not only decided individual cases, but they lay down general principles of law, and you're duty as an officer of the court is to make sure that the society in fact honors those rules. Yes, there are differences. Yes, we can modify them. Yes, in context, the rule changes, but the fundamental principle, that separate but equal is unacceptable, is not one of those".
That was where I started. I must admit to a little bit of embarrassment because when I went in with the first draft, he said, "Edgar, I like what you've written, but one, eliminate the word 'I' from anything you write for me. Second, what does 'Res judicata' mean?" That's the Latin term for [inaudible 00:15:39], the thing having been decided, and you learn that somewhere in the first week of law school. I was a little uneasy explaining Res judicata to the attorney general of the United States, but we got along fine.
Just by way of telling you the kind of human being he was, and I wondering, my wife and I were moving into a neighborhood that was all white in Northwest Washington DC. We could not live in either Virginia or Maryland because the marriage was illegal. When we got there, we got to within three or four blocks of the house and all the streets, cars had been parked to prevent any moving van from getting to the house for a rough circumference of about three or four blocks. That was before the day of cell phones, so we walked to the house, and stood on the porch, and said, "What the hell are we going to do right now?"
Then about five minutes into that, a neighbor comes up and says, "I was just called by the attorney general, and he said you have a memo that you've written on the Cuban Missile Crisis that he needs to see this afternoon". I said, "Yeah, okay". About five minutes later, another neighbor comes up and says, "The attorney general just called me and said you have a memo that you wrote on desegregation in Alabama, and Nic Katzenbach, the deputy attorney general is down there, and he needs that memo, and he needs the citations in that memo. Can you bring it in this afternoon?"
By the time the third neighbor came, the cars had somehow evaporated. So I went in with the memos in the afternoon, and I said, "Here they are Mr. Attorney General, but you already have these memos". He said, "I know that, but I also knew where you were moving even though you didn't. I got J. Edgar Hoover to give me the phone numbers of all your neighbors and I just didn't know how many calls I'd have to make before they figured out that maybe they shouldn't mess around you. That's the kind of human being he was. Those were extraordinary years.
Then because of this professor from Swarthmore, my wife and I got in very deep trouble. They funded a program that was called "The Gray Areas Program and Community Progress Inc.", where we were at Yale. My wife stepped down as associate counselor of the redeveloping agency to be the first neighborhood lawyer. Well, she got into trouble pretty early on because she would sue the Yale New Haven Hospital for keeping dead babies until the parents could pay the bills. She sued the police department for harassment. She sued the housing authority for doing some things like denying due process. You know, minor stuff like that.
Then she got into real trouble because the public defender was asked to represent an African American who had been charged with rape. He said, "I don't have any connections in the community. Can you find out about this?" She went to all the bars on Dixwell Avenue, and found that the two of them had been living together for five years. She was now dating a white guy, and she had a bruise, so she explained the bruise by saying she had been raped. The African American, though, had just ... Sort of found religion, found Christ, and he felt he was being punished for who he was, and there was no way he was going admit that. We had to get a physiatrist from the law school faculty who got him to testify under hypnosis. Then he told the whole story, and the guy was absolved.
You could imagine, in those days, what the headlines were on that kind of a situation. The mayor said, "I am ending this ... " I don't know what language he used, but "I am ending this program of neighborhood based legal aid". He did get two phone calls. One from the Ford Foundation saying, "We respect your right to spend the money that you have any way you want to, but just don't expect anymore money from the Ford Foundation. Then they got a call from the attorney general saying, "We respect your right to spend money the way you want to, but just don't expect anymore money for anything for urban renewal, or any municipal purpose as long as you do that". He decided then that maybe he could re-institute the legal service program, but we decided that maybe we ought to get the hell out of a town and move to Washington DC.
That's what brought me to ... I graduated then and went to the justice department. She went to the department of state and was the first African American there that had an African desk in the office of legal counsel. Then we started writing up our experience about the war on poverty. Thanks. What we wrote was a description, not that people needed free lawyers, but they needed their voice amplified and protected by access to lawyer because you can't fire a lawyer for being a zealous advocate and for amplifying the needs and views of his clients.
What we found was that when we wrote that article, I was going to be fired at the department of justice because Lyndon Johnson was the president and it looked like an attack on the war on poverty coming from Kennedy. All of Kennedy's assistants said, "You can't stay here making this attack". I said, "It's not an attack. It's really an amplification and it has to do with some stuff I did long before I came here". They said, "That doesn't matter". I went to Robert Kennedy and I said, "Would you read this and tell me what you think?" He said, "I think I need to send you to my brother-in-law, Sergeant Shriver, whose heading the War on Poverty.
He sent it to Sergeant Shriver, who said, basically, "We have to include legal services in the War on Poverty". Lyndon Johnson had already told Justice Arthur Goldberg that there was no way in which he was going to allow tax payer money to pay lawyers to sue him, but he didn't know who was going to be writing the regulations for the federal money in the War on Poverty, and that was me. Sergeant Shriver, in his biography, acknowledges that, that's the whole source of the legal service program. We did have to get the American Bar Association to support it, and there was somebody there named Louis Powell, who was head of the ABA at the time, and subsequently became a justice of the supreme court. He asked Jean to testify on his behalf because he had been on the side of segregation in some cases in Richmond, Virginia. Once he testified, [inaudible 00:23:10], who was holding the hearing said, "If Jean Cahn says you're okay, that's the beginning and end of this hearing". Those were the kinds of relationships we had.
That started legal services, then we did not like the kinds of lawyers coming out of law school. I know when I came out of Yale Law School, that I had never seen a client, never been in a court room, never written a contract, never negotiated an agreement. I was brilliant and incompetent, okay? I thought, wouldn't it be nice after three years if you could actually be of use to somebody? That was condemned by the law school world as anti-intellectual. You understand? Learning how to do something is clearly not appropriate. Not only that, but we violated the fundamental rules of academia, we declared we were not morally neutral. When they said, "That's not what academia ... Academia is supposed to be neutral, and supposed to be sort of sit on in an distant hill". I said, "There's something in the code of professional responsibility that says as lawyers we're supposed to advance justice. What happened to that? We think that means you can not be morally neutral if you're going to take a stand for justice".
Fortunately, the American Bar Association is the accrediting body for law schools, not the Association of Law Schools. The Antioch School of Law got accredited faster than any law school in history. It was fully accredited before it had even graduated it's first class. They promptly changed the rules so no other law school could be accredited that fast, but just to give you a sense of how radical what we did was, we actually required every student to live the first six weeks with the clients, and we paid room and board to the clients for that so the students would have the networks, the contacts and understand the world into which they were going.
When Antioch University got into financial trouble and said it was going to have to close the law school, we met with the Baptist ministers in Washington DC. On one Sunday, they all gave the same sermon about that was never their law school, it was always ours. The next day we had a veto [inaudible 00:25:27] vote in the city council. I now teach at the successful institution to the Antioch School of Law, and it is the public law school of the nation's capitol, so that's part of that journey.
This has been a long monologue. I'd like to take a short break and say, do you want to ask questions about that? After that comes a whole other saga that includes the radical notion that unemployed teachers call seventh graders could actually help third graders. We can eliminate most of special ed if we use the unemployed teachers. If they earn throwaway laptop computers and throwaway 286's, and then 386's, maybe they could get their parents involved and we could virtually get schools off academic probation.
It involves the creation of a youth court where when I read that 54 percent of all African American males in Washington DC between the ages of 18 and 35 were either in prison, parole, probation, or a warrant was out for their arrest, I want to congratulate the chief judge as running the most efficient pipeline to prison of any jurisdiction in the country. I said, "These folks did not commit their first offense at 18". I thought I should share with him a breakthrough discovery I made. He said, "What was that?" I know I'm the first to discover this, but teenagers don't listen to adults. Maybe we ought to think about what that means, so we created a youth court where the kids are the jury, and where they not only can sentence the offenders to community service and restitution and apology, but they can also sentence them to jury duty. Now the jurors are all former offenders and they've reduced the recidivism, rearrest, from 34% to 6%, so they're doing more for the rule of law than my law students are, you see. These are the bad kids.
I'll stop there, but there are three or four other things that I think will interest you. I work with people coming out prison. I work with parents whose kids are bipolar, schizophrenic and autistic. All of them, if you give any of them that piece of paper, which is yes, a bureaucratic intake form, all of them can check off at least a few, so don't tell me that any human being is useless because everyone is a miracle. I'm going to stop now, then we can go further, but the story continues.