“There were two federal judges in the South who kicked ass and took names” in the late 1960s and ’70s, Texas civil rights lawyer David Richards says. “They were Frank Johnson and Wayne Justice.” Johnson died earlier this year. At 80, William Wayne Justice is still taking names.
The latest is that of Texas Governor George W. Bush, whose administration Justice rebuked for failing to provide services to children who are already qualified for Medicaid. In late August, Bush was caught flat-footed when reporters asked about a 175-page ruling in a suit, filed in 1993, in which Justice–the original judge in the case–found that the state had failed to comply with a consent decree it negotiated in 1996 to provide specific services to qualified Medicaid recipients. When Republican state Attorney General John Cornyn requested a stay, Justice denied the request (later overvalued); he observed that the state has “restricted children’s access to care and caused numerous instances of otherwise preventable disease. Any further delay in acting…will prolong the suffering.” Bush’s director of communications, Karen Hughes, dismissed Justice’s order as the work of a “liberal activist judge,” while Bush himself insisted, “We’ve got a good record signing up kids for Medicaid. We intend to continue to do so. We’re a compassionate state.”
Justice’s ruling in the case is of a piece with those he has been handing down for three decades. Many of the decisions were informed by Justice’s childhood experiences in deep East Texas, a place that thirty years ago was as rigidly segregated as the Mississippi Delta. Justice grew up in his father’s law office in Athens, where during the Depression clients would pay legal fees “with black-eyed peas and roastin’ ears.” He was bewildered by segregation, offended by the economic injustice that accompanied it and enamored of the law. If George W. Bush represents the “new Texas,” where the leisure class holds court in skyboxes at the Ballpark in Arlington or Enron Field in Houston, William Wayne Justice–a scholarly Courthouse Square lawyer who made it all the way to the federal bench–represents the best liberal tradition of the “old Texas.”
“From my perspective, he believed his job was to be an advocate for justice. He would go out of his way to listen to the evidence and try to achieve justice,” said Larry Daves, who moved to East Texas before he got out of law school so that he could begin working on cases in Justice’s courtroom.
Since his appointment to the federal bench by Lyndon Johnson in 1968, Justice has heard most of his cases in Tyler, a conservative town of 84,000 built by railroad, oil and farm money. The civil rights movement never quite arrived in East Texas, and in the early 1970s there was not a single African-American holding elected office in the forty-three counties of the Eastern District. “East Texas is the Deep South,” Justice said in his office in Austin, where he moved two years ago. “The white, or Caucasian, community there was very fearful about any threat to what it considered its traditional way of life. I didn’t have a lot of sympathy for them…when they were in violation of federal law or the Constitution.”
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In 1971 Justice sat on a three-judge panel that handed down a ruling that created single-member districts that made it impossible for the white Democratic establishment to dilute the minority vote and keep Mexican- and African-Americans out of the state legislature. David Richards was the lead attorney in that case. After he prevailed, Richards, Daves and a self-taught Dallas demographer named Jim Cline took the 1971 precedent and began filing additional lawsuits in Justice’s district. “[Justice] was the only sitting judge in the Tyler Division,” Richards said. “So you found someone to file there. Later, at one time, he was the only judge on the Sherman docket. I filed some cases there. There was a time when he was the only judge on the Paris docket, and I found a plaintiff and went and filed there.”
“He was the onliest judge we ever went to in federal court,” said Arthur Weaver, an 84-year-old civil rights worker who was Richards’s go-to plaintiff in the early seventies. “He said things I never heard a white person say…equal education and equal housing and the right to vote.”
Although Justice had known segregation all his life, he found it particularly disturbing when it occurred in a federal courtroom. “The blacks and whites in the courtroom completely segregated themselves,” he said of the 1974 suit Weaver brought against a county where African-Americans had not held office for more than 100 years (although they accounted for 22 percent of the population). “The whites would stare across the aisle at the blacks with contempt and hatred in their eyes. The blacks wouldn’t look back at the whites.”
Representing Weaver in federal court in Tyler, Richards saw the beginning of the end of East Texas apartheid. “My plaintiffs were poor black men. The defendants were white men with big bulging necks hanging over their collars and big hats sitting on the chairs behind them. And every time I made a point, the black men said ‘Amen, Amen,’ and nodded. I looked over there and saw those commissioners, and I knew they must have thought the world as they knew it was coming to an end. They were in a courtroom surrounded by black people…. And they were looking up onto the bench at Judge William Wayne Justice.”
From the bench in Tyler, Justice would later take control of the state’s brutal criminal justice system, which remains under his court’s supervision twenty-five years later. He desegregated schools that refused to comply with the Brown v. Board of Education decision, integrated East Texas’s rigidly segregated public housing, imposed humane standards on a now-defunct system of state “reform schools” and provided due process for any child facing commitment or sentencing to juvenile detention centers.
The decision he feels best about, he said, is a hometown case that made national case law and still stands today. In 1977 the Tyler Independent School District began to charge children of undocumented immigrants $1,000 a year to attend school. The average undocumented immigrant family earned $4,000 a year at the time, so the tuition had the effect of barring immigrants from school. “There was one single issue there,” Justice said of the suit. “It was very clean.” Trying the case was not so simple. Larry Daves was representing the twenty-four undocumented Mexican children who were barred from a school district with a scholastic population of 16,000. “These people had settled into Tyler,” Daves said. “They had jobs; one father was working in a restaurant, another at a meatpacking plant and another at a pottery plant. Some of these families had four or five kids already in school. These folks were terrified; if they went to court, they were afraid of being deported.”
Daves asked Justice to restrain the Immigration and Naturalization Service from deporting his clients if their identities became public because of the trial. “I said, ‘I’m a federal judge, and I can’t hide the identity of your clients…. I can’t protect them from the process of the law,'” Justice said. “I did set their hearing at 6 am. And there was not a reporter in the courtroom.”
“We went in there, and we didn’t have a prayer,” Daves said. “All the cases were against us. All the precedents were against us. But they were just wrong, and he was right.” In his ruling Justice expanded the equal protection clause of the Fourteenth Amendment to cover undocumented immigrants.
The case was heard by the Supreme Court, which affirmed Justice’s decision by a 5-to-4 vote in 1982. Said Justice: “The issue was clear-cut. And its effect was that millions of children here in the United States got an education.”
While there was satisfaction with such results, there were personal costs as well. For three decades he was socially isolated and a regular target of the Tyler Morning Telegraph and the Dallas Morning News. His wife used to drive to Athens, fifty miles away, to get her hair done because no beauty parlor in Tyler would accept her as a client. His life was threatened, contractors walked off a remodeling job at his house, crosses were burned and local merchants passively refused to serve the couple.
The case that embarrassed Governor Bush this past summer began when Susan Zinn, a lawyer with Texas Rural Legal Aid, was conducting an informal public health survey in counties on the Texas-Mexico border. The most acute problem she found was toothaches. “Children up all night crying,” she said. “The families couldn’t sleep because the kids were crying all night. The kids couldn’t pay attention in school. There were problems eating.” Most of the families Zinn surveyed were poor, so she asked why the children weren’t getting services through Medicaid. “The parents didn’t know they could take the kids to the dentist,” Zinn said. Zinn said she saw two things wrong with the program: “The outreach doesn’t work and the kids don’t go.”
With a pool of plaintiffs on the border, Zinn could have filed in the Western or Southern District. But the Medicaid failure is systemic and statewide and involves 1.5 million children. So Zinn found a name plaintiff in East Texas and filed her class-action suit fifty miles from the Oklahoma border. Only one judge heard cases in federal court in Paris–Wayne Justice.
“He signed our consent decree in 1996, then we watched and waited,” Zinn said. “Then we filed our motion to enforce the decree.” Zinn is working on the case in her private office in San Antonio, as the federally funded Texas Rural Legal Aid has been stripped of its right to engage in class-action lawsuits, the result of years of persistent assault on the Texas branch of the Legal Services Corporation by GOP Senator Phil Gramm. Zinn’s clients, however, are again on hold. On October 10, the US Court of Appeals for the Fifth Circuit granted the Texas Attorney General’s request to delay the court-ordered plan to improve the Medicaid program for children in Texas.
Justice refuses to discuss the case. Reflecting on his career, he downplays what others call his judicial activism. “I’ve been called a controversial judge, so I suppose I am. I consider myself more of a populist than a liberal,” Justice said. Nor does he agree with those who say that his judicial philosophy made his courtroom a forum of choice for lawyers doing public-interest law. Said Justice, “I think the word got out that there was a judge in Tyler who was willing to follow the law.”
