My BarStory

My BarStory S02E04 - James Hardiman, Raymond S. Ling, Adrian Thompson, and Dan McMullen

February 18, 2024 Cleveland Metropolitan Bar Association Season 2 Episode 4
My BarStory S02E04 - James Hardiman, Raymond S. Ling, Adrian Thompson, and Dan McMullen
My BarStory
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My BarStory
My BarStory S02E04 - James Hardiman, Raymond S. Ling, Adrian Thompson, and Dan McMullen
Feb 18, 2024 Season 2 Episode 4
Cleveland Metropolitan Bar Association

We are proud to present a new episode of our My BarStory podcast this week. The battle over the desegregation of Cleveland schools began in the 1960’s, and culminated with a 27-year series of legal actions that became one of the most important and legendary cases in Cleveland history. Learn about this pivotal case from the attorneys who were there. We feature James Hardiman, Raymond Ling, Dan McMullen, and Adrian Thompson in their own words, with the inside story of the case that forever changed our city.

Show Notes Transcript

We are proud to present a new episode of our My BarStory podcast this week. The battle over the desegregation of Cleveland schools began in the 1960’s, and culminated with a 27-year series of legal actions that became one of the most important and legendary cases in Cleveland history. Learn about this pivotal case from the attorneys who were there. We feature James Hardiman, Raymond Ling, Dan McMullen, and Adrian Thompson in their own words, with the inside story of the case that forever changed our city.

Becky Ruppert McMahon (00:05):
Hello, I'm Becky Rupert McMahon, CEO of the Cleveland Metropolitan Bar Association. Welcome to a new season of my Bar Story podcast. We began this project to create an oral history of the bar for our 150th birthday in 2023. The response has been tremendous. We've got many more great bar stories to share this year and beyond. So let's get started with another my bar story.

Dan McMullen (00:31):
My name is Dan McMullen. I'm a partner with Cal Halter and Griswold here in Cleveland, where I practice intellectual property law and lead our firm's information technology practice.

James Hardiman (00:41):
I'm James Hardiman. I'm a practicing attorney. I have my own law practice. I've been practicing 52 years now.

Raymond S. Ling (00:50):
Are you getting better at it? <Laugh>?

James Hardiman (00:51):
No. I'm starting to learn the, the system, though I know where the courthouse is. <Laugh>.

Raymond S. Ling (00:56):
It's good. Ray L with progressive Insurance associate General Counsel. Been there about 23 years. Back in the day I was an associate with the firm, Westin Herd, Fallon Paisley and Halle, and we represented the state Department of Education and the state Superintendent of Public Instruction.

Speaker 5 (01:18):
Adrian Thompson. I'm a partner at TAF Law, labor, and Employment. Back in the day, I was an associate at Forbes and Timor and represented the city school district.

Dan McMullen (01:29):
Very good. Well, I am pleased to join my esteemed colleagues today to discuss a case that embodied a pivotal chapter in the city of Cleveland's educational, racial, social, and political history, Reed v Rhodes Cleveland's school desegregation lawsuit. So for people from Cleveland or, or northeast Ohio generally particularly those who are old enough, who may recall some of the many impacts that this school case or the busing case is, it was also often called had on the citizens of Cleveland in the widespread notoriety. It commanded if you'll indulge me to share a, a, a little historical background. Many of you may recall from constitutional law class or civics class. In 1954, uni unanimous United States Supreme Court held in Brown v Board of Education, that in the field of public education, the doctrine of separate but equal has no place. Separate educational facilities are inherently unequal.

Dan McMullen (02:31):
Two years later, in Brown two, the Supreme Court directed that segregated public schools be desegregated, quote, with all deliberate speed. So throughout the period of the 1950s and sixties, student populations in Cleveland, as across the country exploded with the baby boom. And Cleveland, like other northern industrial cities, had highly racially segregated housing patterns. In addition, over the span of many years, Cleveland school officials with the complicity of state authorities repeatedly made decisions and took actions regarding the assignments of students and faculty, the locations of school buildings, the use of transportation and otherwise to establish and maintain separate black schools and white schools that built on, reinforced and exacerbated segregated housing patterns. In numerous documented instances, black students attended badly overcrowded schools, sometimes attending relay classes. So-Called meaning doubled up morning and afternoon school sessions in a given building while nearby white students sat in underutilized classrooms.

Dan McMullen (03:38):
Sometimes black students were bused out of their neighborhoods to other black schools, rather than being assigned to nearby white schools. And in some cases, school officials actually built new buildings to relieve overcrowded black schools rather than to reassign students into underutilized white schools mere blocks away. Similarly, teachers and principals were assigned by race to black and white schools, and perhaps not surprisingly, resources followed accordingly. The Cleveland schools that precipitated the lawsuit were here to discuss today were not only inarguably separate, they were also clearly unequal, following much controversy and dialogue in the community over these conditions. Prominent civil rights attorneys of the day, including the late Sixth Circuit Judge, Nathaniel Jones, and his capacity. Then as general counsel of the NAACP working with a rising young local lawyer, our fellow panelists today, James Hardiman prepared a complaint captioned Reed v Rhodes Reed, meaning a, a young African American middle school student named Robert Anthony Reed, and Rhodes being James Rhodes, then governor of the State of Ohio.

Dan McMullen (04:52):
The complaint was filed in US District Court here in Cleveland in 1973, asserting violations of the 14th Amendment's Equal Protection Clause against the state of Ohio through the Ohio Department of Education and the Board of Education and Superintendent of Public Instruction and the Board of Education of the Cleveland Public Schools for operating a Deju segregated school system in Cleveland. The case was assigned to Chief Judge Frank j Batisti. It was filed as a class action on behalf of a subsequently certified plaintiff class comprised of all black students in the Cleveland Public Schools and their parents following a lengthy trial in receipt of voluminous evidence. The US District Court on August 31st, 1976, found that the Cleveland Board of Education, the State Board of Education and their respective superintendents, had violated the Plaintiff's 14th Amendment rights to equal protection by intentionally fostering and maintaining a segregated school system within the Cleveland Public Schools.

Dan McMullen (05:53):
A unanimous panel of the Sixth Circuit Court of Appeals affirmed that finding of liability against state and local defendants. Petitions for writ of Sari were filed by defendants on two separate occasions and denied by the United States Supreme Court in 1980 and 81. Now, in response to the finding of liability for constitutional violation, the court after a lengthy process of developing a remedy, issued a comprehensive remedial order in 1978, comprised of 14 basic components intended to remedy the unconstitutional segregation and attempt to address some of the educational consequences it had fostered accordingly. In addition to assigning students to racially integrated schools and providing for transportation in support of those assignments, the remedy also included educational components, particularly emphasizing reading and remedial reading instruction, as well as counseling and guidance, testing and tracking practices, the use of magnet and vocational schools, human relations training and assignment of faculty on a desegregated basis.

Dan McMullen (06:58):
The remedial order also obliges the state of Ohio to exercise closer administrative oversight and greater responsibility for student performance and to help pay for such remedial programs. The case went on over a period of some 27 years. Let that sink in for a moment. It affected the lives of hundreds of thousands of people involving the expenditure of hundreds of millions of dollars, and was central to the narrative of Cleveland's educational, social, political, and civic life for three decades. Its effects are with us to this day, many individuals, some fairly colorful played roles, large and small in the drama of Reed v Rhodes, and you will get to hear about and from some of them now. So with that brief overview, let me pose a question to each of our esteemed panelists. Can you please describe your role in the case and explain how you became involved? And as the only person who worked on and lived with the case from its inception to conclusion, I suggest we start that with our colleague James Hardiman. James. Thanks,

James Hardiman (08:04):
Dan. I guess my main claim to fame is I attended Cleveland Public Schools. I taught in the Cleveland Public Schools, and eventually I sued the Cleveland Public Schools. And as I looked back, I did some quick and dirty research to try to recall what all had happened, and what I learned is effective tomorrow, December 12th 2023 will mark the 50th anniversary of the date that we filed this lawsuit. Oh,

Dan McMullen (08:38):

James Hardiman (08:39):
Wow. Didn't, I'd forgotten. I knew the date, but to put it all together was kind of eye an eyeopener for me. Wow. So that's notable <laugh>. But as you pointed out, Dan, this was a monumental undertaking. And at the time I was a young lawyer. I like to think I still am, but we know better than that. It kind of divided the community on many, many levels. Some people were very supportive, some people believed that the schools were intentionally segregated and the only solution was full and complete desegregation. Other people believed that this would constitute the ruination of the Cleveland Public Schools. Suffice it to say, however, the NAACP undertook the laboring or filed a lawsuit against six different defendants, the Cleveland Board and the State Boards of Education, the superintendent of the Cleveland Public Schools, the superintendent of the State Board of Education, the Governor, and the Attorney General.

James Hardiman (09:40):
After it was filed, we went to trial. And ultimately in August of 1976, judge Batisti issued his finding that the Cleveland Public Schools were segregated on the basis of race, but more importantly, the segregation was intentionally caused. At the commencement of the trial, I can still hear Judge Batisti posing questions to attorneys for the defendants and basically asking them if the Cleveland schools were segregated. And all of the attorneys, after some heming and hawing finally conceded that the schools were segregated. Of course, they contended that they had nothing to do with the segregation, that the segregation was simply the result of housing patterns over which they had no control. So the entire lawsuit was involving whether or not the Cleveland and the state defendants had done things, the practical effect of which was to create, foster and maintain racial segregation. At least that was the first part in the lawsuit.

James Hardiman (10:51):
The liability opinion was issued finding that the Cleveland Board and the state Board with their respective superintendents had engaged in conduct, which segregated or tended to segregate students that attended the Cleveland Public Schools. And at the time, we assumed that we had achieved a major victory. After all, taking on a giant, like the Cleveland and State Boards of Education was quite an undertaking. That, however, looking back, was a simple part. The more difficult part, and I think my colleagues will speak to this, involved a remedy. In other words, what do you do? And this is where the community was very, very divided. Some people thought that well, it's about time. Other people thought, no way will I ever send my child to a school that's crossed town. It's interesting to note parenthetically, that prior to the time that we filed the Reed versus Rhodes lawsuit, there was in 1964, another school case, it was known as Kragt versus the Board of Education in which a number of attorneys attempted to enjoin the Cleveland schools from constructing schools that would predictably be segregated.

James Hardiman (12:14):
Some of you may remember the name Bruce Klunder. In 1964, he laid down behind a tractor and was accidentally killed trying to stop the construction. I believe it was Steven Howell, a school on Lakeview Avenue, which was going to open segregated. Interestingly enough, Stephen Howell has been closed for many years now and been torn down, but the Kragt case was the predecessor to Reed versus Rhodes. And even though in 76 we were able to establish the segregated nature, the intentionally segregated nature of the Cleveland Public Schools, the more trying and more challenging issue involved. What do we do? How do we eliminate segregation? How do we make schools a place where people want to go, as opposed to a place where people want to get away from?

Raymond S. Ling (13:08):
Can I just ask you a question, though, because absolutely. There was a lot of case law developing constitutional law that was developing all the way up to the Supreme Court that was maturing, and that would give you, as a plaintiff's opportunities to say, oh, we see that this is working here, or maybe this isn't working in another jurisdiction. What, what did you take from some of those other cases and the green factors and things like that to start to build on? Oh, what, what sorts of remedy there should be suggested?

James Hardiman (13:44):
It's, it's kind of an interesting backstory. As I said, I was a young lawyer trying to get my feet on the ground. Yeah. When this all started, and I happened to meet Nathaniel r Jones, who was at the time, general Counsel for the naacp. And he said he took my card and said he would get in touch with me, which he did. And we were able to start to do research. And it went back, not just to some of the cases that preceded Brown, but it went back to the 14th Amendment. It went back to slavery. It went back to crag. It went back to the period just before we filed the case. Milliken versus Bradley. Mm-Hmm mm-Hmm. Was the Detroit Mm-Hmm. <Affirmative> school desegregation. Missouri XR Gains versus Canada was another case that said that school districts could not intentionally segregate but it didn't actually overrule the Plessy decision.

James Hardiman (14:47):
Plessy said that separate is permissible as long as it's equal. Mm. And to this day, the Plessy decision has never been explicitly overruled. Hmm. Now, brown versus Board of Education, the 1954 case that Dan alluded to, Mm-Hmm. <Affirmative> kind of on a defacto basis, overruled Plessy. Mm-Hmm. <Affirmative>. But it never said that Plessy was no longer good law. Hmm. So, as we sit here today, pless, they still, under certain circumstances, could be cited as a precedent. Mm-Hmm. <Affirmative> fortunate or not. But leading up to the filing, we had Detroit, we had Swan, which was

Dan McMullen (15:27):
North Carolina, Uhhuh

James Hardiman (15:29):
<Affirmative>, North Carolina. We had Keys, which was Denver, Colorado. Right. We had a lot of cases that were winding their way through the court system. Mm-Hmm. <Affirmative>. And which we used as kind of a yardstick to d determine what we would do moving forward. One of the big issues was when the Detroit case came down, Milligan versus Bradley was at the end of what we were trying to do. In other words, in Milliken the Supreme Court said that the suburban school districts could not be part of the remedy unless they were named as defendants. And Mm-Hmm. <Affirmative> and liability. Mm-Hmm. <Affirmative> was proven against them. Mm-Hmm. <affirmative>. So given that reality, we were stuck with a Cleveland only remedy Mm-Hmm. <Affirmative>, as opposed to a greater Cleveland remedy. But there were other precedents, many of them in the Sixth Circuit, which we relied upon to hopefully give us some guidance and make sure we kind of did the right thing. Mm-Hmm.

Dan McMullen (16:26):
<Affirmative> Ray Links. Say a word more about your role in the case and how you first became involved.

Raymond S. Ling (16:32):
I worked for a prominent attorney in town, Mark O'Neill. He was working with another associate in the firm who left the firm, and he asked me to come on board. And this was around 92, 93. And it was around the time when the district had decided that yes, indeed, we are at fault, but we don't have any money. So you guys over at the state, <laugh>, we'd like to see you pay up. And so that was the time when, when I got involved. People who were around back then may remember the term Vision 21, which was a new series of programs that the district was proposing in part, to improve education, in part, to address some of the inequities. They were all about it, as long as the state defendants meaning as, as was said, the Board of Education. And superintendent would write the check.

Raymond S. Ling (17:29):
So that obviously became a, a, a bit contentious because instead of plaintiff versus two defendants or multiple defendants, you had plaintiffs and the district, and then the state. So there was a realignment of the party. So it was at that point that I became involved and got to know these fine gentlemen here, <laugh>. One of the great things about working on the case is the prominence of people involved. In addition to James, we had Tom Atkins, who was a very prominent Boston based civil rights attorney. I did not work with, who was Charlie Clark? Charlie back back in the day. But Fred Nance was chief Counsel for the local defendants and then Mark O'Neill. Mm-Hmm. <Affirmative>. And so, you know, and then of course, Dan was working at the office, sun School Monitoring. And so there were some pretty interesting folks and very prominent lawyers to learn from and watch work in this whole this whole ordeal. So yeah, it was a, it was a very interesting time at that point in the case. It had lingered for a while, and I think James captured it really well. It was kind of a, what are we gonna do to try to fix this thing? And at that point, you're 15 years in Mm-Hmm. <Affirmative> and still working on what are the plans, what's, what's the best way to go about this? Right.

Dan McMullen (18:54):
Adrian Thompson. Say a bit more about your role in the case and how you first got involved.

Speaker 5 (18:59):
I was a young legal aid attorney. I think it was in my third year of practice. And I got involved because of a tragedy. Omar Abdullah was a partner at Forbes. Forbes in Timor, and he was killed by a drunk driver. Mr. Forbes came over to Legal Aid and asked Lionel Jones if he could talk to me, and he said, yes. And that's how I, he recruited me to come and work for him. He said, I have this big case I want you to work on. So that's how I got involved. And I'll just, you know, amplify what Ray said. The great thing about working on this case was working with the great attorneys, and they were great mentors, teachers. We were all, I would say we weren't allies, but we, we shared a common goal. We wanted to do, I think, what was best for the children. We had our own positions that we had to litigate about, but I think at the end of the day, we wanted to do the right thing. It was difficult, but I learned a lot from these guys.

Dan McMullen (19:52):
You know, just for the benefit of the listeners, the, the Mr. Forbes that Adrian just alluded to is former Cleveland City Council President, prominent local lawyer, George Forbes, who was a, a, a figure of considerable weight in the community for many, many, many years. And who, who influenced many things that happened in the city of Cleveland over decades time. I just add for my part, I had worked on the case as a law clerk for Judge Pati initially, and then became involved again in the late 1980s as a court appointed monitor and special master. I served in that capacity for several years. And my last principal responsibility was to mediate a comprehensive settlement agreement among the representatives of the plaintiff class, the state and local school officials. And the settlement agreement that they entered into was ultimately adopted by the court as a consent decree in 1994, and established and agreed upon path to the conclusion of the litigation including the termination of the court's jurisdiction on July one of the year 2000. So now, I want to ask each of you you know, if you, can I identify or describe some aspect of the case, whether it's a particular issue, a brief, a hearing, a board meeting, a community meeting, or other event you were involved in that you found particularly difficult or challenging or problematic? And Ray, let's start with you on that.

Raymond S. Ling (21:16):
There's a lot of things to choose from <laugh>. There's one I was involved in, and one I wasn't, one I was involved in was there were issues with the locally elected Board of Education. There were very interesting personalities involved. That's an understatement. <Laugh>. Thank you. Thank you. Thanks. I appreciate that. There was actually a hearing in which one of the members of the board almost came to blows with with Mark O'Neill. The partner I was working with

Dan McMullen (21:48):
Was that

Raymond S. Ling (21:48):
Mr. Henley? That was Mr. Henley. <laugh>. A little bit crazy. Be a lot crazy. So we had, and, and that was in federal court? That was right. Not, and it wasn't in Chambers, it wasn't outside. It was in the courtroom <laugh>. So that was always interesting. There was very early in the case, and this is from Mark. He, he told me about it later, but there was a Friday afternoon, and he was in his office at Western Herd. And, and this was in 1980. Judge Batisti sent federal marshals over late in the afternoon to collect his files on the case, which was seemingly problematic. We will leave that to other members of the bar to take up on the ethics side of things. Thankfully although it was late in the afternoon, mark was able to chase down one of the judges at the sixth Circuit who stayed the order <laugh>, but Marshals were there to capture all of his files, and he was eventually able to, to hold them off. But that was, I think, indicative of some of the struggles between the parties and the judge, who I suspect was frustrated with the, with the status and lack of progress, perhaps, Dan, you might have some more insight there, but

Dan McMullen (23:19):
I think that's a good word,

Raymond S. Ling (23:20):
<Laugh>. So, so there were, there were interesting stages, I think when the school district decided to kind of change its tactics and looked towards the state that realignment was was problematic, but it wasn't necessarily a big surprise. 'cause There wasn't a whole heck of a lot of money with the school, within the school district. No

Speaker 5 (23:48):

Raymond S. Ling (23:49):
Yeah. That, that would be another way to put that too <laugh>. And, you know, there hadn't been, correct me if I'm wrong, but I think at that point there hadn't been a, a successful levy for like 10 years. Enrollment was dropping a little bit, but we

Speaker 5 (24:03):
Had 70,000 kids.

Raymond S. Ling (24:04):
You still had 70,000 kids, which was actually only about half of what it used to be.

Dan McMullen (24:10):
It had been, right.

Raymond S. Ling (24:11):
Mm-Hmm. <affirmative>, but still a lot of kids that needed to be educated. So it, not, not that surprising necessarily, but it was surprising to council when it was announced to us <laugh>. So that was one of those things where we had to engage in further discussion. And, and but that I do believe was part of what ended up or resulted in the consent decree a year or two later. It was an interesting point in the case for the lawyers to, to sift through.

Dan McMullen (24:41):
Yeah. Adrian something you found particularly challenging or problematic? Difficult.

Speaker 5 (24:46):
It, it was probably my first or second board meeting. I mean, the law firms involved at that time were an Akron firm. Buckingham Doolittle. Oh, yes. And Forbes Worth and Timor. Mm-Hmm. <Affirmative>. And the main council was Mark Skain. Yes. Probably Jim Wyman. And there were others. But on our side, it was Mr. Forbes, Ricardo, and me. And we went to the board. We had just got on the case, but most of the board members wanted to file a motion for unitary status. I, and I'll just say this, we had just got on the case, so there was a, we went to executive session probably an hour and a half, and I remember one of the board members came out, Adrian, all you need is four votes. And we filed a motion, reary status

Raymond S. Ling (25:31):
Status, four, seven. Right. You had seven on the board.

Speaker 5 (25:32):
So that was very troubling. I knew I was in over my head <laugh> at that point. Given what happened and what we knew about the case at that time, we really hadn't read all the orders. We didn't know about all the orders, but we filed a motion re unitary status based on advice of counsel. Mm-Hmm. <affirmative>.

Dan McMullen (25:51):
Wow. Yeah. Right.

Speaker 5 (25:52):
So that was troubling for me.

Dan McMullen (25:55):
That was troubling for the court as well as you may, <laugh>. <Laugh>, yeah. Yeah. James, from your perspective,

James Hardiman (26:01):
Whoa, where do I start?

Dan McMullen (26:02):
Yeah, no, that's a, that's a tough one for you.

James Hardiman (26:04):
As I said we filed on December 12th, 1973. And much of the time between when we filed the case till the liability decision was issued in 76, we had a mountain of material to go through, but we also had the political aspects of the case to deal with. Now, this case was all about race. Arnold Pinkney, if that name rings a bell with anyone was president of the Board of Education. And Arnold Pinkney had been a mayoral candidate. I think he was also Carl Stokes's campaign manager. Mm. So when the, another

Dan McMullen (26:47):
Prominent member of the community, indeed, very prominent member of the community,

James Hardiman (26:51):
When the lawsuit was filed, Arnold Pinckney took it personally because he had been a board member emeritus of the naacp, and he felt that this was a slap in the face. So strategically, they decided that they

Dan McMullen (27:06):
Were, and for what it's worth, I'm just gonna interject for those who don't recognize the name, Arnold Pinckney was a very prominent black businessman in Cleveland who held many different roles. And yes, as you say, occupied a very, you know, respected status across the community, but I'm sure, particularly in the black community.

James Hardiman (27:24):
But when the lawsuit was filed, he took it very personally. Mm-Hmm. <Affirmative>, he wanted to make sure there was at least some black representation at the trial table. Therefore, it wasn't just bringing in Squire Sanders, it was bringing in John Bustani to sit at the trial table to have a black face at the trial table

Dan McMullen (27:43):
On behalf of the defendants, on behalf

James Hardiman (27:45):
Of the Cleveland defendants.

Dan McMullen (27:46):
Right. Mm-Hmm. <Affirmative>.

James Hardiman (27:47):
Now, in the midst of discovery members, prominent members of the black community decided that the NAACP and the attorneys that were representing the plaintiffs didn't have their best interests at heart. So they called a meeting at the call post building, which at the time was on a hundred and fifth and Chester. And at this meeting, they invited myself Terry Demcheck, Tom Atkins, and Nathaniel Jones WO Walker, who was, I guess he owned the call post. He approached me and indicated that this meeting was for black people. They didn't want any white people there, which meant I had to tell our white researcher who probably knew more about the case than anybody, that she wasn't welcome. Mm-Hmm. <Affirmative>. So we all stormed out in a huff, because if one of our team members was not welcome, then none of us were welcome.

James Hardiman (28:49):
Mm-Hmm. <Affirmative>, Nate Jones decided to stay back and explain to them what we were in ready to prove. But the rest of us all left. And in Nate's book, he makes reference to this incident when members of the black community attempted to run us out of town. And I asked George Forbes about that in subsequent years. And he said his assignment was to run us out of town on a rail, because they were local people. We were the the interlopers that were trying to create problems for the black community. Mm-Hmm. <affirmative>. And he did apologize and said he didn't understand initially what it was all about, but he was simply following his assignment to run us out of town. Interesting. Well, we didn't run <laugh>. We stuck around for a while, and we were able to establish that the segregation was intentional. Another quick story and some people may remember was JB White <laugh>. If you remember, JB White, he was a well-known criminal lawyer, and he was assigned the task filing a motion to dismiss. And he filed his motion to dismiss, and the hearing was held. And Batisti called him to the lectern, and for the next 20 or 30 minutes, ripped him up one side and down the other.

James Hardiman (30:15):
And JB White was very likable guy, but I remember Batisti telling JB White that the motion was poorly written, it was ill-conceived, and it was simply a political attempt to gain some leverage. And he was not going to be swayed by this type of thing. And it's the only time in my life having known JB White for a while, then I saw JB White without anything to say <laugh>

Speaker 5 (30:41):

James Hardiman (30:43):
So years later, I did ask JB what inspired him to do that. Who wrote the motion? That's what the judge wanted to know. Mm. And JB acknowledged that someone from Charlie Clark's camp had actually written the motion Mm-Hmm. <Affirmative>. And that JB said he was willing to stand up and file the motion. Mm-Hmm. <Affirmative> not because he believed in the merits, but because he thought there was a lot of money going around <laugh>, and he wanted to be on the receiving end of some attorney fee award, which I found somewhat troubling. But that was jb

Raymond S. Ling (31:14):
And it, it wasn't a coincidence that Judge Batisti got that case. Right.

James Hardiman (31:18):
No, that was not quite a coincidence.

Speaker 5 (31:20):
<Laugh>, was it a coincidence? Judge Kansky got the case? That's another good question. Yeah. For a late chapter in the Yeah. But can you say about the assignment Yeah. James Case,

James Hardiman (31:31):
That was the Parma housing case. Right?

Speaker 5 (31:33):
Ah, right.

James Hardiman (31:33):
That was had been decided by Judge Batisti. So when we filed the case, we filed it as related right. To the Parma Housing case, which meant it was assigned to Judge Batisti. And I understand, and I can't remember if Judge Batisti told me this, or I heard it from someone that Judge Batisti told it to. But judge Batisti allegedly told all the other judges that were starting to question why he got that particular case. If they wanted the case, and given the complexities and obviously the time commitment, none of the other judges were willing to step up and take the case.

Raymond S. Ling (32:10):
And the politics.

James Hardiman (32:11):
And the politics, obviously. Mm-Hmm. <affirmative>. And as a result of that, judge Batisti kept the case. Mm-Hmm. <Affirmative>. But I hope there were no ethical concerns there. But <laugh>, we did think that Judge Batisti was the most qualified person. I'm sure you did. Aside from the fact that he and Nathaniel Jones were friends, they were both from Youngstown, they rode together from Youngstown to Cleveland after Judge Batisti was appointed Judge by was that Kennedy?

Raymond S. Ling (32:37):
I thought that was, I thought he was a Kennedy appointed.

James Hardiman (32:38):
He was the, I think the youngest judge on the federal bench when John F. Kennedy appointed him. Mm-Hmm. <affirmative>. So if you were from Youngstown, or you went to Harvard, you had the end. Nathaniel Jones was from Youngstown. Dan McMullen went to Harvard

Raymond S. Ling (32:53):

James Hardiman (32:55):
And I had neither going <laugh>

Raymond S. Ling (32:57):
And Judge had a beautiful courtroom. Yes. That was Yes, he did.

Dan McMullen (33:01):
Yeah. The grand old courtroom in the old courthouse. I, I was in there a year or so ago. It, it is quite a spectacular room. They don't make 'em like that anymore.

Raymond S. Ling (33:08):
No, no. That was, that was Politeful. Yeah.

Speaker 5 (33:11):
As a young attorney, when you walk in there, you like,

Raymond S. Ling (33:13):
It's intimidating. Get

Dan McMullen (33:14):
Your intention. Yeah, I agree with that. You know, I wanna echo one point that James' observation about the political politically controversial nature of the case in these kinds of cases, school desegregation cases, both here in Cleveland and elsewhere in particular here, for many years, the focus that people had on busing, busing, busing, usually accompanied by adjectives like massive, or court order forced cross town busing dominated almost every story in media report on the Cleveland schools. I mean, busing was blamed for everything but the national debt and tooth decay. Mm-Hmm. <Affirmative>. And it became a favorite local political football, really for every two bit politician looking for time in front of a microphone or a camera. And I, I note that observation because what became evident over the course of my involvement with the case is that there were so many adults who shamelessly exploited the political tensions that arose around school desegregation for their own political purposes that did not serve the interest and needs of the children of Cleveland. And that is a painful reality of this case, whether it was avoidable or not, who can say? But,

Raymond S. Ling (34:37):
And it was only one component, right? Of the 14 components <laugh>

Dan McMullen (34:42):

Raymond S. Ling (34:42):
Remedial order when

Speaker 5 (34:43):
A certain judge took over the case, that became the main, his, his emphasis was ending transportation. Mm-Hmm. <Affirmative>, crosstown transportation to the, to me, to the, well, I'll just be quiet on that <laugh>.

Dan McMullen (34:58):
Yeah. No. Adrian's noting a, a chapter late in the case after Judge Batisti had had jurisdiction of the case since its inception for, you know, many, many, many years, died unexpectedly after one his annual fishing trip out to Montana. And after he passed the case was reassigned through a process that I don't, to this day yet fully understand, but reassigned by a panel on the Sixth Circuit to then Senior Sixth Circuit Judge Robert Kansky, who sat by designation as a district judge and took jurisdiction of the case. And Adrian's comment judge Grabanski had, I think it's not unfair to say a certain agenda in mind when he assumed jurisdiction of the case and that, you know, played out over the course of its last several years.

James Hardiman (35:55):
I, I, I think it's fair to say that he lobbied to get the case <laugh>.

Dan McMullen (35:59):
I I, I'm not in a basis in a position to contest that <laugh>. Yeah.

Raymond S. Ling (36:04):
One, one could say though, that Judge Batisti had a certain agenda in, in managing the case too. And, and I think what was so dramatic was it went from yes, one side to the other, right. Where you would be in chambers with Judge Batisti, and you knew who was favored and who was out of favor. And when it switched to Judge Grabanski, Adrian was

James Hardiman (36:28):

Speaker 5 (36:28):

Raymond S. Ling (36:29):
Adrian was never favored

Speaker 5 (36:31):

Raymond S. Ling (36:32):
That's what was funny.

Speaker 5 (36:33):

Raymond S. Ling (36:34):
And all of a sudden the everything had changed. Yeah. Right. And it was a dramatic thing. And that was one of the interesting pieces. 'cause I was involved, I worked with Mark as part of the trial team on the busing order. So there was that trial on the busing work just busing itself. Right.

Speaker 5 (36:53):
Even despite Gordon Foster's expert testimony. Right. About the need to continue transportation at all that,

Raymond S. Ling (37:02):
Well, with Vision 21, you had all of the magnet schools that

Speaker 5 (37:05):

Raymond S. Ling (37:06):
All people in, so you had all, I say that somewhat tongue think that that was, that was, that was part of it. Yeah. But

Speaker 5 (37:13):
That was a shock. When we, when we went in Judge Pat Kansky, remember we had a pretrial before him. He let us know in chambers that busing was going away. That was clear. And it was a new day. Right. Then it

Raymond S. Ling (37:27):
Was gonna,

James Hardiman (37:28):
I I think, Ray, you make a good point. The emphasis shifted and there was no, in my mind question that Batisti believed that separate was inherently unequal and was going to do his part to make that a reality. Now, when he went to Kansky and subsequently to Judge White, it was a whole different story. Yeah. I remember rather vividly. Well, I know for a fact that when we go to courtrooms all over the place, now we have security and metal detectors and all that, but we never had that before. Right. We just waltzed into the courtroom. Right? Mm-Hmm. <Affirmative>. And I think what happened in one particular case was the, I dunno if it was a KKK or the Nazis showed up Mm-Hmm. <Affirmative> and lined themselves around the courtroom in full uniform. Obviously there was an attempt to intimidate the judge. Mm-Hmm. <Affirmative> and maybe the plaintiffs as well. Mm-Hmm. <Affirmative>, I found it kind of humorous, but <laugh>, as it turned out, Batisti then issued an order that uniforms were not permitted in the courtroom. Mm-Hmm. <Affirmative>. And we said, wait a minute. When they had uniforms on, on, we could at least know who they were. <Laugh> <laugh>, when they took their uniforms off, they looked like anybody else that was kind of humorous. And so, but he said, well, I can't have this type of,

Raymond S. Ling (38:44):
Well, and the judge, well, Dan, you know, when he was about to issue an order, he left town, and then the order would come out the next morning, or something along those lines. And, but it was because of safety and security.

Speaker 5 (38:57):

Dan McMullen (38:58):
<Affirmative>, yeah. For many years, it, it starting, I mean, way back when I had been a law clerk in the case, we in chambers would receive, you know, anonymous phone calls, death threats of every variety on a routine basis. I mean, it, it was indicative of the level of Yeah. Heat and acrimony that you know, the case you know, tragically engendered. Well, so in light of all those many observations, let me step back and ask a, a, a, a broader, maybe a more challenging question. And Adrian, we'll start with you. What do you think the case meant to the citizens of Cleveland?

Speaker 5 (39:38):
I think it meant different things to different people. I think for the majority of black parents, it meant that the district and the state and everyone was going to be held accountable for what happened in the past. The separate schools, the relay classes just the mistreatment of students, and I'll say both black and white. Mm-Hmm. <affirmative>. And the school district had to be held accountable too, because when we got involved, we did learning walks, and there was no teaching and learning going on in the schools. The district spent millions, probably hundreds of millions dollars on reading programs, guidance programs. It was a joke. And I'll just say that you saw the data, you know, the kids came in, black kids, white kids, all the kids came in on the same level, kindergarten through third or fourth grade, when they hit a certain grade, the test scores and the won't say pro, pro proficiency proficiency scores just, you know, for the white kids, it wasn't great.

Speaker 5 (40:44):
But when you compared it with the black kids and the Hispanic kids, it, you just saw the disparities that still existed. And I think those disparities exist today because the school district, I represented them, but they were just as his fault in many ways as a state was because there was no teaching and learning going on in the district. Many other things were going on, but no teaching and learning. So I think there was a remedy. I think the remedy was appropriate. It probably lasted too long. I think that's when Judge Kansky came in. He did one thing, right. He sped up the process because we were just spinning our wheels on the educational components. And that happened, I think that was just a vestige of what happened initially is just Yeah. Generations, generations of children that did not receive proper educations. And that it continues today. I think those vestiges still exist in what you see in the c Cleveland public schools, despite their best efforts today.

Raymond S. Ling (41:46):
I think one thing it did too was to accelerate flight out of the district, which I think also hurt educational. Right. In you know, busing was part of it. But I do think that the educational offering suffered one way, however it was caused. Right. And I, I do think some of the things that were pointed out in the case were true. So the educational offering suffered. Then you, you know, you add on the busing component, which was very unpopular as Dan Mm-Hmm. <Affirmative> noted before. So people started looking for ways to get out of the district, and, you know, people who could did Right. People of means were able to do that or chose to do that. And that, I think, accelerated some of the issues didn't change what was happening from a, from a segregation standpoint, but it changed the clientele to some extent. Yeah. And that was an unfortunate byproduct.

James Hardiman (42:50):
I think it's appropriate that we look at what was happening in many cities across the country. Yeah. And starting probably in the middle sixties, people were abandoning cities. Mm-Hmm. <affirmative>. That's why PE places like Parma, east Cleveland, to a lesser degree grew Mm-Hmm. <Affirmative> because people were dissatisfied with the kind of educational opportunities that cities were providing. And one could argue that the desegregation didn't go far enough. Mm-Hmm. <Affirmative> that if in fact, the court had been so inclined to take over the system and run the system, and the court specifically said it was not its intent to run a system. Mm-Hmm. <affirmative>, they said that on more than one occasion. Right. But there had been so many missteps from before Cragt in 1964 until the middle nineties, that something had to be done. And unfortunately the legislature dropped the ball. Mm-Hmm. <affirmative>, unfortunately Richard Nixon and his appointees in the Milliken decision were able to appoint people to the US Supreme Court that did not believe that a metropolitan remedy was the solution. Mm-Hmm.

Raymond S. Ling (44:15):
<Affirmative>. Oh, and when you say the legislature, so you're talking about the Ohio General Assembly, you're talking about from a school funding standpoint?

James Hardiman (44:22):
From funding and also rules that would prohibit segregated schools. Mm-Hmm. <affirmative>.

Speaker 5 (44:28):
What would that have looked like, James?

James Hardiman (44:30):
It would have been difficult. It would've been a challenge, but I think in the long run, a lot of children would've received a better quality of education. Now Mm-Hmm. <Affirmative>, if you recall in Detroit, after the liability decision was issued, then the judge came back and tried to impose educational components on top of it. Mm-Hmm. <Affirmative> in Cleveland, the educational components were written into the live, the remedial order. Mm-Hmm. <affirmative>. So, which is the better way to do it? Mm-Hmm. <Affirmative>, the reality is we all are searching for the best solution, and we all pay lip service to the fact that we want separate and equal oh, we want equal schools that are not separate. Excuse me. Mm-Hmm. <Affirmative>, I misstated myself. But the real challenge is, do we really believe that? Mm-Hmm. <Affirmative>, and I can say on behalf of the plaintiffs, we bought that we believe that Brown versus Board of education meant what it said.

James Hardiman (45:34):
Mm-Hmm. <Affirmative> separate is inherently unequal. Mm-Hmm. <affirmative>. Yeah. And unless, or until we grapple with that Mm-Hmm. <Affirmative>, then we're going to continue to have problems. I can look right now, and I see two judges that sit on the eighth District Court of appeals that were a part of this process. Mm-Hmm. <affirmative>, did they get a better quality education because they were transported from their neighborhood schools? Mm-Hmm. <Affirmative>. There are always isolated instances that we can point to that are examples of success. Mm-Hmm. <affirmative>. There are also examples of kids that dropped out, people that ran those types of things. So it's a challenge that I think we shied away from. Right. Ultimately, but the challenge that we still are going to be dealing with Mm-Hmm. <Affirmative> maybe in the next millennium. Yeah.

Speaker 5 (46:17):
Mm-Hmm, <affirmative>, can I say this? The district had some very bright administrators who truly believed what they were doing. The problem is somehow it didn't translate to the schools. Mm-Hmm. <affirmative>, I mean, I can remember going to meetings on a daily basis where everyone would pull out their, it wasn't the orders, it was their, I've performance reviews of how they had, you know, they had a plan to meet the remedial orders and they would go through that and the data was there. And most

James Hardiman (46:43):
Checking boxes check.

Speaker 5 (46:44):
Well, well, I think it was more than checking boxes. Okay. 'cause It was actual discussion about various programs especially testing and tracking, reading guidance. I think they were real. Mm-Hmm. <affirmative> The problem is when it got to the local level to the schools, it didn't happen. Mm-Hmm. <affirmative>, and I won't blame the union, but I'll just say that union contract made it very difficult for the programs to be implemented properly. Mm. They were not partners in the process. That's, no, they were not. That's very true. And I understand the purpose of the union. I'm not, it was just, it didn't work like that. Mm-Hmm. <affirmative>.

Dan McMullen (47:16):
Mm-Hmm. <affirmative>. Mm-Hmm. <affirmative>. James, I think, you know, you point out a very profound point when you harken back to that language from brown. Separate is inherently unequal. And, and the question about how many people genuinely believe that and accept that, I think that's an open question. Yeah.

James Hardiman (47:35):
And we pay lip service to it. But do we really internalize it? Mm-Hmm. <Affirmative>, do we really believe that separate schools are inherently, by definition, unequal?

Speaker 5 (47:43):
Well, you can go to school districts across northern Ohio. Yeah. And just look in the classes. Who's in the advanced classes? Mm-Hmm. <affirmative>. And in the general education classes, it doesn't take a rocket scientist to figure out what's going on. Mm-Hmm. <affirmative>. Mm-Hmm. <Affirmative>, it's just, I'm gonna say continuation, but there are problems that still exist if you believe that those are problems.

Dan McMullen (48:02):
So I'm mindful of our time here but any closing observations that any of you want to share about your experience with the case? And I, I'll just start with one for what it's worth with my lawyer hat on in particular, one lesson that I've taken away from my observation of the case is a reminder that the law is a blunt instrument. And to accomplish something as challenging and nuanced as affording, you know, the best educational opportunity possible to our children in schools that are not separate, but are not, and not merely equal, but of high quality is a, a, a lofty aspiration. And one that the, the law, you know, I think is, is challenged to, to meet, and in particular, this is a little bit simplistic, but it was born out in the experience to me. And that is, there's a fundamental difference between negative injunctions that a court can issue. You may not do certain things in affirmative injunctions. You must do certain things. And I think the latter are harder to enforce.

Raymond S. Ling (49:18):
I think one of the interesting moments in the case for me was, if you remember, I think this was around 94, and there was a motion to intervene brought by a group of parents and their kids. And I think it was related to the proficiency test, because at that point Mm-Hmm. <Affirmative>, the, if you didn't pass, I don't know, four out of five or all of the, you didn't get a

Dan McMullen (49:44):

Raymond S. Ling (49:45):
Right. You didn't get a diploma. And I think the argument was these kids have been beneficiaries, quote unquote, I've got the air quotes going of, of a substandard education. How do you expect them to pass the <crosstalk>? Mm-Hmm. <Affirmative>. Mm-Hmm mm-Hmm. <Affirmative>. Mm-Hmm. <affirmative>. And that was I and James, I'm looking at you. 'cause That was I know a difficult time for you guys, you and Tom as well. You know, and how do you answer that question? How does the court answer that question? What's the, what's the best remedy for them? Does it make sense? How do you start to address some of those issues? So putting my legal hat on the case was fascinating just because of the legal issues involved, the societal issues involved, the politics, all of the things that we've talked about in, in the stakes were very high.

Raymond S. Ling (50:36):
Mm-Hmm. <affirmative>. Yeah. I don't know that anybody walked away from it going, Hey, we saved the world. Yeah. So, you know, and, and that's that's kind of difficult too. Yeah. So after having a lengthy history, I think some good things came of it in terms of, you know, shining the bare bulb on the issues that were presented. And talking about things like, you know, finding other ways to attract students, to build staff development programs, to get teachers more involved and so forth. And then some of the failings that, that came along with that. So your point, Dan, is very well taken that requiring whether it's court led or the court telling others to lead it, but requiring people to affirmatively do something as opposed to not do something. Mm-Hmm. <Affirmative> can be difficult. Yep.

James Hardiman (51:30):
I think we can all look back with the wisdom of 50 some odd years and say, well, we accomplished some things, but with the wisdom of Solomon <laugh>, if we had unbridled authority, we could do a hell of a lot more. Right. And, you know, we, we, we start to look at it and say, well, okay this was a mistake. We shouldn't have tried this. Mm-Hmm. <affirmative>, but we could have done something more somewhere down the line. Right. Mm-Hmm. <affirmative>. And

Raymond S. Ling (52:01):
If you, if that, if this case came up today as opposed to 50 years ago or 40 years ago, would you, do you think you would get more traction now from the community? Or would it be the same intransigence that you saw earlier?

James Hardiman (52:16):
Yeah. My, my suspicion is we would still have people and organizations and entities that would come out adamantly opposed to what we were trying to do, given the makeup of the various courts. It obviously depends on who the judge is. Right. Look at our Supreme Court. Right. Look what they've done in the last couple of years. Would they be receptive to this idea

Speaker 5 (52:42):
If the focus was on socioeconomic status other than race? Mm-Hmm. <Affirmative>, given that most of the parents and children that live in Cleveland are below the poverty line, do you think that would've made a difference in today's world given the makeup of the court?

James Hardiman (52:57):
I don't think so. <Laugh>. Yeah. I got, I I, I would hope, but trying to be a realist. Yeah. I

Raymond S. Ling (53:04):
Don't think so. Adjunct to that though, I think is in, in, in part, we're talking about, you know, the, the unions and there's, there's, there's a power component, right? So that when you guys filed originally, you were upsetting the status quo. Oh, yeah. Mm-Hmm. <Affirmative>. Mm-Hmm. <Affirmative>. And I think doing that, even if it was now, there are certain powers in place that would resist. Yeah. So whether it's the, whether it's the union, whether it's the mayor who's appointing board members now, who knows who are, where the pockets of resistant would, could be neighborhood leaders. It could be, you know, it, it, you could have some of the same things. I do wonder, I think you poses a really good question in the way, Adrian, about the, if it was focused on socioeconomic status and could

Speaker 5 (53:56):
Be 14 member. Right?

Raymond S. Ling (53:58):
Yeah. Well, you know, does, does it sell better? Yeah. You know? Yeah.

Speaker 5 (54:03):
Yeah. Yeah. It does. In that respect.

James Hardiman (54:06):
Yeah. It's, it's, it, it's, it's not race. It, it's it's

Speaker 5 (54:09):
Money. Yeah.

James Hardiman (54:11):
Type, type of argument, which we heard a lot of.

Speaker 5 (54:13):
Right? Mm-Hmm. <Affirmative>.

Raymond S. Ling (54:14):
Mm-Hmm. <affirmative>. Well, and the demographics have changed to some extent. You've, you know, you got more immigrants in the community now and so forth. Yeah. Would that make a difference? I don't know. I think it's a, I think it's an interesting question, but

Dan McMullen (54:29):
Well, certainly a shared challenge for all of us on this podcast and everyone listening, I would say, who has an interest in the welfare of the city of Cleveland and its citizens is to consider how each of us can contribute in whatever way we can to improving the educational environment for all of our children. Amen. An aspiration that I hope we all share.

James Hardiman (54:54):
Well said <laugh> Daniel.

Dan McMullen (55:00):
And with, with that any other final comments?

Raymond S. Ling (55:03):
Well, three Rs I think has been helpful from putting a plugin for the Bar Association. Yes, indeed. But I do think that's been a, it's been a nice program.

Speaker 5 (55:11):
Can I just say that one, the great thing about this case is that can, together with you guys and just being a young attorney first, a part of just being able to, you know, hold, hold books, hold suitcases, but just listen and watch great attorneys go to work. Mm-Hmm. <affirmative> and judges as well.

James Hardiman (55:27):
Well, there were some good judges. <Laugh> <laugh>, some better than others. Yes. I, I wouldn't give that blanket endorsement.

Raymond S. Ling (55:35):
I like my judge. You can keep your judge. How about that? Thank,

Becky Ruppert McMahon (55:38):
Thank you for joining us for another My Bar story. You can still sign up to record your own bar slash podcast. Watch your podcast feed for a new episode coming soon. Have a great week.