From swallowing nickels to the United States Supreme Court.

From survival to success.

From foster care to Supreme Court fanfare.

Arguably the most significant employment law case of the United States Supreme Court decided this term and decided at nine to nothing, comes from Northeast Ohio, and the case is Ames versus Ohio Department of Youth Services.

The lawyer who won that case is Northeast Ohio's own distinguished attorney and author, Attorney Edward L. Gilbert.

We are honored today to have Mr. Gilbert on Forum 360, the show with a global outlook, but local perspective.

And we're going to hear his personal story, as well as the lessons to be learned from his recent seminal case.

On behalf of Forum 360, welcome.

- Thank you Sally, great to be here.

- It's great to have you here.

And for our audience and I'm Sally Henning.

So tell us about not just this case, but before we get to this case, we'd like to talk to you about your upbringing, which is unique.

You wrote a book a few years ago called Swallowing Nickels.

- That's true.

Could you tell us about your upbringing in foster care and your struggles.

- Sally, I met my mother when I was two weeks shy of my 18th birthday.

I met my dad when I was 13 years old.

And from nine months old until 13, I was raised in foster care in Indianapolis, Indiana.

And it was a tough situation and my dad, when he found out that I was probably going to be adopted, he then came out of nowhere and was able to secure me and my brother from foster care.

And then we moved to from Indianapolis, Indiana, to Zanesville, Ohio.

And I went to high school in Zanesville, Ohio and so forth.

And unfortunately my dad was, he was abusive.

And unfortunately, we had to go back into foster care even after coming and leaving with our dad.

So I spent a good portion of my younger years, (unintelligible) with the exception of four years in foster care.

And in those days they called it welfare.

We were in welfare homes, we were welfare kids.

And so the title of my book, Swallowing Nickels, takes me back and writing that book was sort of a therapy for me, you know, therapy of— Because I never, talked about that too much.

And very few people who think they know me well do not know that I went through that because I just didn't talk about it.

- Well, they see an attorney.

- Yes.

Right.

Who is a member of every group, who's honored, who's on TV, who gets interviewed all the time, who goes to the United States Supreme Court wins nine to nothing.

If I were to recite all of your achievements and all of your education and all your courses that you went to and that you taught, that would be the entire show.

- Well, I appreciate that, yes.

But it has not been easy.

My wife and my son, they really got on me involved writing this book to see if I can maybe inspire some of the younger kids, on that.

And just to go to the title of my book, - Swallowing Nickels.

- Swallowing Nickels.

Yeah.

I was about 7 or 8 at that time, and we would- This is my second welfare home in Indianapolis.

We did not have much to eat and in fact, it was very, very, very difficult.

And we had this one guy who had come down the the alley behind our home there.

And we were what we call welfare kids.

And we always had our head shaved bald, and that was one thing and that you could tell who the welfare kids were because they were always bald head kids.

And if a teenager would come by and he just laugh and laugh, and he would always want to slap our heads and he would come to me and he says, I'll give you a cookie if you let me slap your head.

And I was hungry.

I took a cookie and he slapped my head.

But every now and then he would run out of cookies and he would have, he says, okay, I'll give you a nickel if you let me slap your head twice.

And I did and as crazy as that sounds, it's so true.

And I knew that- - It doesn’t sound like crazy it sounds like survival.

- Well, even those days it was embarrassing too.

And I would hear all the old folks talking about, boy, you know, if I had money, I could go anywhere and do anything.

And I remember them saying, money, money, if you just had money, boy, if I just had some money, I could go.

I could get out of the predicament I'm in and so forth.

I remember looking at TV, and we would only have this little small black and white TV, and all of us.

It was about 10 or 12 people that kids that stayed in that recalled welfare home.

So they'd have a number of kids in there.

And we look at that TV and I remember watching Mickey Mouse.

And if you wish upon a star, it makes no difference who you are.

If you wish upon a star, your dreams can come true.

And that's, you know, that's just insane.

And nobody really took it seriously.

But I did, and I was just, man, I wish I could get out of this and talked about money and you know, they would— This guy give me a nickel and I'd go back and I'd...

I couldn't go anywhere.

We weren't allowed to go to the store, couldn't spend or anything.

So I swallowed a nickel, in hopes that someday I would get out of my predicament and it sounds crazy.

It sounds stupid, but it was just dreaming.

I just wanted to dream to get out of that situation.

And lo and behold, nobody would come see us, but this one aunt would come by, Aunt Pearl, and every now and then Aunt Pearl would come by and see us.

I remember one day she came by and she we were sitting on the back porch eating off— We had that tin plate we would eat off and bean cans we were drinking out of and the bean can would, it would cut your mouth and cut your lip.

And I had my lip cut real bad that day.

Aunt Pearl came and she wasn't supposed to be there because they were always supposed to call before they came by.

But I remember my Aunt Pearl, we did not expect her because when we knew that she would come, they would clean us up a little bit, you know.

But that day, boy, my lip was bleeding and I was drinking out of tin cans, and Aunt Pearl just looked at me and started crying.

And I remember within a few days, we were out of there and moved to another welfare home on the other side of Indianapolis and on the east side and that particular home was really very, giving, very, nice home.

And they were very good to us.

And that's when my life kind of turned around and so forth.

And finally, my dad, he came and got us and, the rest is what you might call history, you know?

- So that was the turning point.

- That was a turning point.

That was a turning point.

And even though dad was very difficult, he's always pull, you know, guns on us and so forth.

And, threatened to kill us and so forth, and that we cost him too much money and that type of thing.

And sure enough, my brother, he only lasted two years.

And, me, I lasted four years with him.

And then we went back into the welfare system.

- What kept you on the path, we called the (unknown).

What kept you on the path?

- Fear.

I mean, that was so hard until I just said, man, I had a fear of failing.

And I was the only thing I could look for in those days.

You know, Martin Luther King, you'd see him on TV and he'd always talk about education, always talk about doing better for yourself, helping somebody.

And that just went through me.

And I remember saying, look, if I get an education, maybe things will get better.

And they did considerably.

I just wouldn't— I just can't forget that.

And I wonder about the kids today and what if they just had a Martin Luther King to really talk to them about success, about doing the best you can, be the best you can, no matter what.

I remember his one speech, he said, even if you're a janitor, be the best janitor you can be.

And that just stuck with me.

And, just so the fear of going back to where I was, and motivated me to go on to get a college degree from the College of Wooster and then going on to University of Akron and getting my law degree and ultimately becoming a lawyer.

I mean, that just the fear of failure is what, what really motivated me.

- So how many law schools in the United States?

Kudos to University of Akron also.

- Well, when I came out, you mean how many I— - No.

No.

How many law schools have graduates who got a nine to nothing decision in the United States Supreme Court?

- Well, it's a less than 2% of them total.

We're real proud of that.

And let me tell you a little bit about that case.

Miss Ames is just a nice, dear lady.

She's a heterosexual.

- And this is the case that you took to the Supreme Court?

- Yes.

And at that time, she was one of maybe 50 cases that I was working on, you know?

- Your normal caseload.

- Yeah my normal caseload, normal caseload in courts, you know, and, generally, I go to federal court.

I'm doing more state work now, but, this is one where she came to me and she explained to me two different situations, which kind of took to me.

The first one is that, you know, her main, a white heterosexual, she just indicated that she was denied a promotion and it was given to a gay person, and not because a gay person was gay.

But the point is, it was given to a person who didn't even apply for the job, did not interview for the job.

And I thought that was wrong.

That was just dead wrong.

- What was the state of Ohio's explanation for not even interviewing, getting an application from the successful applicant?

- Well, they they said that the interview pool that they had there were three people.

All of them were heterosexuals, one including Mrs. Ames.

And they said they did not have the vision for the job.

And you know, very subjective.

Oh, okay.

And the person that they actually promoted to the job did not interview for the job, indicated she did not want the job and that they basically forced her to take it.

And she went on and took the job.

But, I'm not telling you something that is guesswork.

I'm telling you something that is in the record that is sworn to deposition testimony and so forth.

And I thought that was wrong.

And then she explained to me while she was waiting for the results of the interviews, she was then demoted to a position that she had been with the agency for like 15 to almost 20 years at the time.

Very stellar record, great evaluations.

And she was demoted in favor of another gay man and he, in fact, did not interview for the job.

They just gave him the job.

And he bragged before then that he was going to get her job because he was gay.

And then he had gay friends that would make the decision and he was going to get her a job, and he was trying to force her to retire.

And she says, I don't want to retire.

But she explained both of those incidents to me.

And I said, you know, that's not right.

But the hurdle we had at that point is not the basic case.

The basic case I felt we could we could win.

But the issue was the higher degree of basic evidence that you would have to present in a case like that called background circumstances.

- One moment.

You're tuned into Forum 360.

Our very special guest today is Attorney Edward Gilbert, who recently prevailed on behalf of his client in front of the United States Supreme Court in a nine to nothing decision.

Attorney Gilbert, you're just talking about what this case was about.

- Right.

And the thing is that in the basic format, what we call McDonnell Douglas discrimination case.

All you really have to show before you get to the jury is that you apply for the job, you're qualified for the job, the job was not given to you, and that the job remained open.

We had that.

But there's another hurdle called background circumstances, which it's a judge-made rule.

And this judge-made rule was instituted in the early 1980s and the district of D.C. And that was for cases where there are a majority group people that complain about discrimination.

You have to prove according to that circuit background circumstances.

- So there's different standards if you're a majority person.

- Right.

- Filing discrimination charges, then if you're a minority person— - That's correct.

- Even though sometimes women are majorities and sometimes they're minorities.

- Well that's part of the issue because, you know, you and I went to law school together and, you know, now in those days you didn't have very many women in law school, but now the majority are women, you know.

- I have stories.

- Yeah.

So anyway, in this case, what we're saying is that you would have to be meaning that quote unquote majority group, you have to prove that you have background circumstances where the employer is an unusual employer that discriminates against the majority.

- It's quite a stereotype isn’t it?

- Yes.

And that's hard to prove.

And also it's sort of... - Discriminatory.

- And if you look at title seven, the law, you know, any discrimination, white, black, is the same.

You know, gender, race, religion, national origin, so forth.

And, you know, there's no difference.

And in fact, in the case of Thurgood Marshall, a hand that way back when he first took the bench right after title seven was passed in 1964, this case in the early 70s, called McDonald versus Santa Fe.

That was a case where there was a nine old decision from the U.S. Supreme Court that Thurgood Marshall threw which indicated that white individuals are covered by or in majority group are covered by title seven, which is the same law we're dealing with.

And so this is not a sort of a new thing, but after so long the circuit in D.C. started this background circumstances as being an additional burden, a hurdle you have to jump.

And this started moving across the country.

And our circuit is the Sixth Circuit which covers Michigan, Ohio, Kentucky and Tennessee.

They bought into that.

- And it's a different definition.

It's called reverse discrimination.

- Right.

A lot of people look at this verse.

Yeah.

And always we're saying let's look.

No matter who you are, majority or minority, you should be treated the same.

And that's what this case was all about.

And so when we took it through the trial court, the judge said, no, I got to follow Sixth Circuit precedent, and that's what we're going to do.

I asked, but what is background surface sense?

And what do we have to do to prove that?

Well, nobody knows, I mean, it bounces from court to court.

It depends on who the judge is.

So we take it up to Sixth Circuit, Sixth Circuit said no, we're going to go with background circumstances.

Then after that came out, there was one judge there on the Sixth Circuit that said he had to rule that way, but he thought it was wrong.

And, lo and behold, I got calls from at least seven law school clinics.

- Really?

That wanted to assist me in taking this case forward.

- You're right at my next question, which was what were the logistics and how complicated was it to go the Supreme Court?

- Well, you know, I had a lot of help.

I had a lot of help because I had a good seven number of law schools who have what they call Supreme Court clinics that wanted to get involved in this case.

I interviewed all of them, sat down and went through everything with them.

I selected, Xiao Wang out of Virginia Law School and he and I immediately clicked on what we wanted to do, how he wanted to do it.

He was very supportive.

His school was very supportive of it.

And I decided, well, he's the guy I want to do this with.

And so they had done a good deal of the background work in terms of statistical work, you know, because I practice in Ohio and, you know, when you go to the Supreme Court, they're going to want to know, well, what's going on in California, what's going on in Maine, what's going on in Florida.

- You don’t keep up with us?

- I don't have that on my hip pocket.

But they did.

And so, we put it all together.

Did the briefing, submitted— - So the logistics are a nightmare?

The brief has to be pleaded?

- Oh, yeah.

Yeah, you have to.

Yep.

You go through that, you spend a good 2 to $5000 just on printing and briefing.

And so, we went through that, they prepared the work, submitted to me.

We made some adjustments, some different type of things, and then we went for a writ of certiorari with the court, submitted it.

And, you know, it took a while for them to— - The writ of certiorari is you're taken into the court.

You don't just file it.

You have to ask for their permission.

- You got to make that request and you have to say, look, that it's a matter of public interest.

And we told the court that we had 19 states that required background, circumstance.

And the other states did not.

And so it was a split of authority within the US.

So that's one of the criteria.

And of course, it's a public interest.

And so we were able to put that together with the full assistance of Xiao Wang there at the University of Virginia.

And lo and behold, we hit the bell.

They said, we'll take the case and we'll hear the case.

And so at that point— - The Supreme Court accepted the certiorari?

- That's correct.

And then you have to do a full lay out brief, you know.

So that's what we did.

There was a reply, and lo and behold, we got 13 amicus briefs.

- People that were supporting ypur position.

- Agencies, primarily agencies, general, the Attorney General's office— - Of the United States.

- Of the United States wanted to come in and... - How often does that happen?

- Yeah it rarely happens, rarely happens.

The one agency that disappointed me that did not support us in the briefing stage was the NAACP Legal Defense Fund.

I thought that was really interesting.

And they indicated in their brief that they agree that Sixth Circuit was wrong, but they wanted the court to develop some type of mechanism for race cases, that type of thing.

So I wouldn't agree with that.

- And you've been involved as counsel for— - Yeah.

- For the NAACP in many cases.

- I’m still counsel for a number of the local Northeast Ohio NAACP.

And we could not get them to change their mind on this, but, at any rate they did prepare.

They were the one, I think, three amicus briefs that were against us and we had like 13 that were for us.

And it was just great.

And just going to that court and walking through that court, I will tell you this, that I was disappointed to see this huge statue in the court of Marshall, Justice Marshall, who was a slave owner.

I walked by it.

I said, wait a minute.

(Unintelligible) - He can get off the bench and go out and sell slaves.

So anyways, I was like, I couldn't believe that.

But anyway, you know, going through there and going through that and sitting there as second chair because, you know, one of the things I said to Xiao I said, “Xiao, you can do the argument.” And I said, well, I'll do the rebuttal, if they get into the factual situation, they have questions about the facts, and I would do the rebuttal.

However, if it's a continuation of his, I was open and he could do that.

Well, as you probably listened to the argument.

- I did listen to it on YouTube.

- Yeah, so that's what happened.

I mean, he did a great job on his opening and then the reverse, the state of Ohio, they did not even use up all their time.

I thought that was interesting.

- They agreed with the basic principle.

- Once they agreed with it, they did not raise the factual issues or disputes in the case.

I talk to Xiao and I said, Xiao you go ahead and do the brief rebuttal, so.

And that's what happened.

That's the way it laid out.

- Tell me about your team and the Supreme Court.

- Oh, well, you know, it was just me and Xiao.

And then he had his students.

And the students were just amazing, you know, and he had a whole group of them.

And they would do the background, particularly the statistical work, which was very interesting because, you know, a lot of questions that raised about DI and all these other questions.

- Your son, unlike you, whose parents were out your son was there watching you and your case.

- Yeah.

Yeah.

- Your son was there with the team.

- Yeah, believe it or not he's a graduate of Cleveland Marshall Law School.

- Marshall, how good.

- That's your namesake up there.

That statue, but anyway.

He was there, and he wasn't supposed to be there.

He didn't decide to come until a week before the argument.

He never thought we'd get to the Supreme Court, you know?

And I kept telling him, we're in, we're in.

But he decided to come.

And then when he got there, they wouldn't let him in.

And then he told the guard, I’m Ed Gilbert’ son and he says, come on in I'll push a seat for you.

And the place was was loaded.

I mean— - So from swallowing nickels to seeing your son watching you at the Supreme Court.

- Yeah.

- It’s been a life.

- That's been quite a run.

- And you used to say that if you just had the money, you could do all these things.

So now you have money and no time for anything, do you?

- I always have time.

Always have time for youngsters, always have time.

- Speaking of youngsters.

What advice do you have for children who might be interested in being champions?

For justice.

- Follow your heart.

Number one.

Number two, help people.

You know, like, as poor as I was and I'll tell people as poor as I am now and I'm nowhere near where I was, granted.

But the point is, I never forget where I came from.

You know, and even if you came from good background, even if you came from parents or relatives and have money, never forget that there are people out there that just need some help, you know?

And I got to tell you, you know, I got a lot of good help along the way.

- And you do a lot of help.

- Well, and I never will forget, and the only thing I can leave young people with this thought is, you know, think about people they don't have.

Think about people that are hurting, you know, and, always treat people with respect and dignity, you know, and that's one thing I insist on in my office.

And I assist on dealing with people that come into my office.

And when you call me, you'll always get through to talk to me.

- You've been tuned in today to Forum 360.

Our special guest, Attorney Edward L. Gilbert, author, counsel, just recently prevailed at the United States Supreme Court.

On behalf of Forum 360, I'm Sally Henning.

Form 360 is brought to you by John S. and James L. Knight Foundation, the Akron Community Foundation, Hudson Community Television, the Rubber City Radio Group, Shaw Jewish Community Center of Akron, Blue Green, Electric Impulse Communications, and Forum 360 supporters.