by Michael Tigar
From the Editor: In the March 1989 issue of the Braille Monitor we published a speech delivered at the spring 1988 NFB of California convention by legal scholar and tenBroek student Michael Tigar. We reprint that article here, beginning with the editor’s note:
As Monitor readers know, Dr. Jacobus tenBroek (founder of the National Federation of the Blind) died on March 27, 1968. A whole generation of blind people has grown to adulthood during the years since his death, and thousands of Americans (members of the National Federation of the Blind) have come to terms with blindness and society's attitudes about blindness in these twenty-one years. All of us owe Dr. tenBroek a profound debt of gratitude, for it was his wisdom and vision that first gave blind people the courage to dream of freedom and the strength to build our own future. At the spring 1988 convention of the National Federation of the Blind of California, Federationists celebrated Dr. tenBroek's life and work. The guest speaker for this anniversary Memorial was Michael Tigar, who during the 1960's was Professor tenBroek's student at the University of California in Berkeley. In her introduction of Mr. Tigar, Sharon Gold, then president of the NFB of California, said:
Michael Tigar currently holds the Joseph D. Jamail Chair in Law at the University of Texas School of Law. He has been a tenured member of the University of Texas faculty since 1983 and also participates in litigation on a regular basis. Before joining the University of Texas faculty, he was a partner in the Washington, D.C., law firms of Williams and Connolly, and Tigar and Buffone. He was vice chairman of the Section on Litigation of the American Bar Association (1987-88) and is chair of the Litigation Section of the American Association of Law Schools (1988). Mr. Tigar received his law degree from the University of California at Berkeley. He was first in his class, served as editor-in-chief of the Law Review, and was elected to the Order of the Coif.
He has taught and lectured at Yale, Harvard, the University of Michigan, the State University of New York at Buffalo, Georgetown University, and UCLA and has spoken on national, state, local, and judicial conference programs. Mr. Tigar is the author of several books, most recently Federal Appeals: Jurisdiction and Practice, published by Sheppard's/McGraw-Hill, as well as scores of articles and essays in law reviews and other publications. He is a frequent speaker at continuing legal education programs.
We are delighted and honored to have Mr. Tigar with us today. I ask you to welcome Michael Tigar, distinguished attorney and scholar, and, like us, Dr. tenBroek's student and friend.
When I learned that Jacobus tenBroek had died, I wept. So did all of you who knew him. Why did we weep? Not for him. He was beyond the power of our tears. If there is a hereafter, he would there be judged, to use an expression that he favored, a worthy citizen. We wept for ourselves, for what had gone out of our lives. Now twenty years have passed, and perhaps our sense of loss is more muted, not quite so insistent and urgent. Yet in that perspective I see and know more of what Chick tenBroek contributed to me, to you, to generations of teachers and learners, and to the struggle for justice. Jacobus tenBroek, the teacher: I came to Berkeley in September 1958 as a freshman undergraduate. I wanted to be a lawyer. As a freshman you had to take either English 1A-1B or Speech 1A-1B. I liked the sound of Speech. When I went to register, I was told that there was a prelaw section of this course, and I chose that one. Circumstance had brought me in touch with tenBroek. It turned out, of course, that the Speech Department had become what someone called a liberal arts college in microcosm. Besides the performance-oriented speech courses of a traditional sort, you could learn rhetoric and study Aristotle and Cicero. You would learn freedom of speech from those such as tenBroek and Coleman Blease and Al Bendich, who took seriously the theories of Alexander Meiklejohn. TenBroek's prelegal class differed from other freshman speech courses partly in the nature of the material considered: questions of man and authority, of equal protection, of freedom of expression. It differed because he taught by the Socratic method. Today, of course, most law professors claim to use the Socratic method, but they do not. They are afraid of what happened to Socrates. They are afraid really to be like Socrates and to ask questions that expose prejudice, hypocrisy, and sloppy reasoning. But Professor tenBroek was Socratic in more than technique. He really compelled us to confront fundamental issues. In the university community, too, he was a fierce and formidable defender of academic freedom for students and teachers. If Socrates had had such a defender, Athens's hemlock supply would not have been depleted.
I can summon up easily the image of his class. Promptly at ten minutes after eight o'clock three mornings each week, he strode in, placed his cane in the chalk tray, took roll from Braille cards, and began with a challenge to one or more of us: Can you reconcile the seeming antinomy of Plato's Apology and Crito? What did de Tocqueville mean in saying that a society which seeks equality will find liberty to be endangered? Out of the Supreme Court's words justifying the World War II restrictions on the Japanese, what were the central assumptions which had to be made to reconcile such an interference with the constitutional guarantees of freedom of movement, freedom from arbitrary arrest, and equal protection of the laws? As students we wrestled with these questions and also with those posed by Milton's Aeropagitica and Mill's On Liberty, by the Smith Act cases, and by Alexander Meiklejohn's Theory of Free Speech.
The rewards for our persistence were more questions and unceasing pressure for deeper levels of insight. Are you sure of that reading? Haven't you overlooked the language two pages farther on? And we students were persistent, although perhaps (in reflection) not nearly so wise as we thought. Woven through the memory of our labor, however, is the voice and tone of Jacobus tenBroek questioning, arguing, challenging, nettling.
So he lives on in the work of those of us who studied with him. I had not been long his student when I learned that he had written on constitutional subjects. Thinking to gain some advantage in his class, I went to the library to find his work. This was, for me, a great part of the liberating influence of my education. This was the sort of stuff I had come to the university in hopes of finding. I had, after all, grown up in Glendale, where my Texas-born grandmother and New Orleans-born great-grandmother shepherded me to the Lake Street Baptist Church every Sunday. There in the library was tenBroek's co-authored article titled simply “The Equal Protection of the Laws.” Today, forty years after it appeared, it remains one of the most cited of all law review articles in the opinions of American appellate judges. This is a statement one can make with confidence in these days of computer legal research.
I discovered also his books, Antislavery Origins of the Fourteenth Amendment and Prejudice, War and the Constitution, still recognized as the authoritative study on the Japanese relocation of World War II. Then later, when I was editor-in-chief of the California Law Review, I was able to work with him in preparation of a volume of essays on the law of the poor. He assembled a group of the most eminent legal scholars in America, contributed two lengthy essays of his own, and worked with us on the Law Review to turn the entire symposium into a treatise on human rights. He had published pioneer work on the system of welfare law, forcing it to confront its discreditable origin as Elizabethan contempt for the destitute and vagabond and inveighing against its implacable tendency to ravage the privacy and dignity of those subject to it.
Now many people here knew Jacobus tenBroek because of his work with this organization and for the rights of those termed handicapped. I want to say that this work was of greater and more enduring worth because it was a part of his grand and consistent image of constitutional rights, an image that he shared, I must add, with Hazel, who was his partner every step of the way. TenBroek grasped, like no other scholar or lawyer of his generation, the essential meaning of equality in the constitutional sense. His was not the abstract and arid speculation grown so fashionable of late. His theory was rooted in the history of the Civil War constitutional amendments, adherence to which was exacted from the former slave states as a condition of re-entry into the life of the federal union. His theory recognized what Abraham Lincoln had known, that unless some commitment to equality came out of this great Civil War, the nation had no right to exist: It would have squandered the blood of its sons and daughters and traduced the promises made to the former slaves. The equal protection of the laws means that some differences are irrelevant for constitutional purposes. We must for almost every public purpose afford equal treatment without discrimination based upon race, or gender, or religion, or alienage, or physical handicaps. It was tenBroek's genius to see that the prohibition against invidious discrimination was offended as much by forbidding a blind person, on account of blindness, to sit on an airplane as it was by forbidding a black person on account of blackness.
But tenBroek also saw that, if the analysis stopped there, the right that he so cogently termed the right to live in the world would be hollow and incomplete. People are different, in ways of which the law may take notice. Indeed, in order that all may live in the world in as much a semblance of equality as we can devise, these differences may and often must be taken into account. For black Americans the right to live in the world means that government must redress the results of past discrimination. For women denied access for generations to large parts of the job market, the right means affirmative action programs that may include gender preferences. And for a blind person that same right means that government is obliged to pass and enforce laws that ensure, for example, equal access to places of public accommodation and, through such things as white cane laws and laws about insurance and business ownership, to the streets and byways and professions where other citizens travel and live and work.
Recognizing and honoring these differences is the essence of equal protection of the laws. Equal protection is not uniformity. It is not false equality. It is not charity. Last night I met two members of the Federation who will be attending Boalt Hall, tenBroek's law school, and I rejoiced. For today, when reactionary voices seek to have us forget the lessons he helped to teach, their presence is welcome and needed in this profession of ours.The reason that Jacobus tenBroek's work is so often cited is that it tells us this truth. It tells us based upon more than theorizing. It tells us based upon deep and compassionate study of the struggle for equality. Because this study and struggle is the source of tenBroek's insight, its power is yet felt. And, for this reason again, the memory of him fills up in some small measure our profound and enduring sense of loss and keeps us faithful to the causes for which he fought.