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IN MEMORIAM
JOSEPH PARKER WITHERSPOON
Joseph Parker Witherspoon, the Thomas Shelton Maxey
Professor of Law Emeritus at the University of Texas School of
Law, died June 21, 1995, after a long and incapacitating illness,
at age 78. He was survived by his wife of 58 years, Catherine;
son Joseph and his wife, Ann; son John and his wife, Patricia;
son Thomas; son James; six grandchildren: Timothy Knobloch, Kelly
Witherspoon Zabcik, Adam Witherspoon, Althea Witherspoon, Terry
Witherspoon, and Andy Witherspoon; and one great-grandson, Ryan
Zabcik. All three sons followed their father in becoming graduates
of the University of Texas Law School. Professor Witherspoon
had been a member of this faculty since 1948 until his retirement
on emeritus status in 1984.
I. The Early Years
Born in Stamford, Texas, on December 3, 1916,
Joe was reared in Wichita Falls, Texas, attended Wichita Falls
Junior College and the University of Chicago, where he was elected
to Phi Beta Kappa and received a Bachelor of Arts Degree in Political
Science. While there, he met another political science major,
Catherine Leavy, whom he married in 1937. He was employed by
a business corporation until 1942, when he was commissioned in
the U.S. Naval Reserve and served more than three years of active
duty in the Pacific Theatre during World War II. He continued
to serve in the Reserve after the war, ultimately attaining the
rank of Captain and Commanding Officer of the Naval Reserve Law
Company 8-3 in Austin. Following his service in the war, Joe
enrolled at the University of Texas School of Law. He and Catherine
("Cacki" to her friends) had two children--Vicki and
Joe--at that time. Despite his family obligations, which he took
very seriously, he achieved an exceptionally outstanding student
academic record here. He was Legislation Editor and Notes Editor
of the Texas Law Review and was elected to Chancellors, the law
school honorary society limited to students with the very highest
grade averages. Joe was ranked first in his senior class. Dean
Charles T. McCormick and the faculty were sufficiently impressed
that they offered to him a tenure-track faculty position upon
his graduation in 1948. He accepted.
II. Teacher and Scholar
Joe taught Conflict of Laws, Jurisprudence, Constitutional
Law, Civil and Political Rights, Administrative Law, Legislation,
and Antitrust Law. For some of these courses, Joe prepared his
own teaching materials.
Joe was a challenging teacher. His preparation
for classes was exhaustive. In class, he was serious, probing
and enthusiastic. He set high standards for himself and expected
his students to perform at a high level. Yet he was friendly
and caring in his relations with students. It became well known
around the school that Joe devoted an unusual amount of time
to mentoring individual students who were having academic difficulties,
especially racial minority students. For a number of years, he
served as faculty sponsor for the Thurgood Marshall Legal Society,
whose members were mainly African-American law students.
During leaves of absence, Joe served as a visiting
professor at Boston College and Southern Methodist University.
He also spent one year as a Rockfeller Foundation Fellow at the
Harvard Law School, which rewarded him a Doctor of Juridical
Science degree in 1961. His dissertation addressed the subject
of administrative discretion to determine statutory meaning,
and much of its content was published in several law review articles.
Published writings by Professor Witherspoon are
characterized by exceptional thoroughness. No relevant source
or idea seems to have been overlooked. See, for example, his
law review articles addressing thorny problems of interpretation
of statutes, particularly Administrative Discretion to Determine
Statutory Meaning: 'The Middle Road,' 40 Texas Law Review
751 (1962). After an exhaustive discussion of views of other
scholars, he set forth his own proposals for courts and administrative
agencies in statutory interpretation that would be flexible,
yet principled. [He probably would criticize this characterization
of his position as simplistic.] Later, in 1968, reflecting his
active involvement in getting civil rights legislation adopted
on state-wide and local levels, the University of Texas Press
published his book, Administrative Implementation of Civil
Rights. In this pioneering work, he reviewed existing experience
with state and local human relations commissions as well as several
model civil rights statutes which he drafted.
III. Lawyer
On several occasions, Joe applied his considerable
skills as a lawyer in non-academic venues. He was granted a leave
of absence in 1951-1952 to serve as Branch Counsel in the Office
of Price Stabilization in Washington, D.C. He was a legal consultant
on anti-trust matters for Humble Oil and Gas Company in Houston
from 1957-1962. Later he served as a legal consultant to the
United States Civil Rights Commission on legislation establishing
human relations commissions. In these and other areas, attorneys
and governments, local, state and national, frequently sought
his services, especially to draft legislation. One of the most
challenging tasks undertaken by him was drafting legislation
for Alaska concerning the difficult problems posed for the State
of Alaska by the proposed Alaska Pipeline. He generously donated
his services in support of causes important to him, particularly
civil rights and the Right-to-Life Movement. Nearly all of the
outside legal work performed by Joe pertained to aspects of law
related to his law school courses and enriched his teaching of
those courses.
Joe was sometimes retained to write briefs and
make oral arguments in cases pending in appellate courts. The
thoroughness that characterized his academic writing was also
manifested in his briefs. In a case familiar to one of the writers
of this memorial, a prominent opposing attorney conceded in oral
argument before the Supreme Court of Texas that his brief was
not nearly as complete and detailed as Joe's, and attempted to
persuade the court that deciding the case did not require delving
into many matters addressed in Joe's brief.
IV. Social Justice Advocate
To a much greater extent than most people, Joe
was committed to taking action to remedy social conditions he
perceived to be seriously harmful. Some of this was on a personal
level. He once helped a poor person get new artificial legs.
He also represented African-American barber college students pro
bono to remedy discrimination in the training they were receiving.
As mentioned earlier, his social activism often took the form
of drafting and advocating proposed legislation. A significant
example was his work to get the City of Austin to adopt a human
rights ordinance, or at least establish a human relations commission.
In that struggle as well as others, he often expressed his views
publicly, sometimes severely condemning action or non-action
by governmental entities, businesses and others. One such instance
was an article he wrote for The Daily Texan, February
14, 1967, in which he declared that, "by and large, the
members of the majority group apparently do not really care about
the welfare of their fellow citizens who are Negroes, the Latin-Americans,
and more generally, the very poor." In an earlier issue
of The Daily Texan, October 29, 1965, a news story headlined "Witherspoon
Slams Race Relation Board" reported Joe's strong condemnation
of the Austin City Council for failing to establish an official
race relations board. In 1968, he went before the Austin City
Council on behalf of Mexican-American groups to protest police
department procedures for handling charges of police brutality
in a case involving two young, unarmed Mexicans who were shot
in the back while fleeing Austin police officers after stealing
a car. The procedures were changed to conform to Joe's proposal
that in such cases officers involved in the shooting be assigned
to desk duty until the shooting can be investigated.
One not unexpected result of his activism was
his being labeled a "radical" and included in the category
of "bomb thrower" law school faculty members by then-Chairman
of the Board of Regents Frank Erwin, who tried but did not succeed
in getting legislation passed that would have allowed the governor
to control the salaries of Joe and five other of his colleagues.
Even when it came to his own university, Joe did
not hesitate to speak out against discrimination. In 1961, University
regulations excluded African-American students from participation
in sports programs, dormitories, and other services available
to other students. Black students staged a sit-in at Kinsolving
dormitory to protest the regulations. Those students who admitted
to participating in the sit-in were summarily placed on probation
while those who refused to answer the charge were given even
longer probation. Joe composed a letter to then-President Smiley,
which a number of the law faculty signed, protesting the illegality
both of the regulations and the process by which the students
were charged. Further, at a special faculty meeting called to
discuss the situation, he charged that the "procedure followed
in this instance was wholly without warrant and violated the
due process and equal protection clauses of the Fourteenth Amendment".
Joe was not content merely to criticize others.
He took action to improve social conditions. In 1968, he organized
and chaired a conference on "Human Rights and the Law," which
drew civil rights leaders from all over the United States. He
drafted a fair housing ordinance which ultimately was adopted
in large part by the Austin City Council. He also drafted and
proposed a Texas civil rights act, and testified for its adoption.
He was deeply saddened by the failure to enact it. But he continued
this struggle. He served as chairman of the Lieutenant Governor's
Advisory Panel on Civil Rights from 1969-1971.
In addition to his individual efforts, Joe was
a leader in organizing others to become directly involved in
improving the welfare of racial minorities and the poor. Perhaps
his most ambitious initiative was his role as a prime mover in
establishing in 1966 in Austin the Citywide Committee for Human
Rights (CCHR), which arose out of the early efforts to get Austin
aboard in the civil rights area. This organization brought together
for concerted action individuals and organizations concerned
about social conditions in Austin, especially in East Austin.
Perhaps the most remarkable program of this group was the establishment
of a facility for rendering services to the East Austin community.
These services included education for adults and children, job
and placement counseling, youth activities programs, and advice
about personal and family problems. The program was well received
and grew rapidly. It started with but a handful of volunteers
in 1966. By 1970 over 400 volunteers from 100 organizations were
involved in serving nearly 750 persons per month in CCHR's various
programs. In addition some 21 major public and private sector
employers regularly participated in employer interviews. At one
time about 50 students were being taught at no cost to them by
over 250 volunteer teachers, many of whom he recruited. This
program enabled a large number of persons to obtain the equivalent
of a high school diploma. With great pride, Joe once mentioned
that one of those persons had gone on to obtain a Ph. D. at the
University of Texas. Others were enabled to prepare for civil
service examinations, to obtain secretarial skills, and to acquire
training for other jobs.
In addition to his organizational and managerial
work for CCHR, Joe participated directly in its teaching and
counseling programs. The CCHR discontinued its operations in
1975. By then the Austin Community College and other government
agencies provided many of the same services.
Later, Joe increasingly devoted his time and energy
to support of the Right-to-Life movement on both state and national
levels. He participated in the meetings which led to the formation
of the Texas Right-to-Life Committee and served as legal consultant
to the National Right-to-Life Committee and the Bishops' Committee
for Pro-Life Activities. He filed a friend-of-the-court brief
in the landmark Supreme Court case of Roe v. Wade. He
later testified before a Congressional committee in support of
a constitutional amendment to override that decision.
Numerous awards were conferred upon Joe for his
social activism, including an honorary doctorate from St. Edwards
University, the Cardinal Newman Award for Human Rights Work,
an award from the Texas Division of the NAACP, and the Rotary
Club of Austin Community Service Award.
V. Character
This review of Joe's life as a lawyer, law professor,
and citizen reveals quite clearly that he was a person of the
highest integrity, passionately concerned about the welfare of
the less fortunate among us, and fully committed to using his
talents to the utmost to achieve his goals--to be a fine scholar,
teacher, lawyer, and contributor to the welfare of his society.
When he decided that a task was worth doing, he threw himself
into it without reserve. Even after his retirement from teaching,
when he turned his attention to a few avocational interests,
he approached those interests with his characteristically total
commitment. It was not at all surprising to those who knew him
to learn that he soon developed hundreds of varieties of the
hibiscus and became a recognized authority on that flower in
the local community. Joe loved the outdoors and enjoyed many
hours working on his small ranch near Liberty Hill, where he
raised cattle and goats, and also experimented with grafting
pecan trees.
Joe was courageous. He braved heavy fire as commander
of landing craft in the liberation of the Philippines during
World War II, for which he received several decorations. As a
social justice activist, he was never deterred by the certainty
that his involvement in controversial and sensitive issues would
invite criticism of him and even retaliatory action. No doubt
some persons Joe had regarded as his friends drifted away as
a consequence of their disagreement with some of his goals or
tactics. Joe continued to exhibit great courage when he suffered
a severe stroke that confined him to a hospital bed for several
years until his death.
Joe's private life was no less exemplary than
his public life. He was a good friend and congenial companion.
He was devoted to his family. Despite the long hours he devoted
to his professional and civic activities, he always found time
to be a loving husband and father. He endured with strength and
dignity the early deaths of his daughter and grandson. He willingly
and graciously accepted into his household for many years his
wife's sister and a son of his deceased daughter.
Perhaps prominent among the influences that shaped
the values and principles that guided him were his religion and
his study of philosophy and jurisprudence. He was an active member
of the Catholic Church and became a Knight Commander, Order of
the Holy Sepulchre of Jerusalem in 1977. He also was greatly
influenced during his days as a student at the University of
Chicago by courses in philosophy, including one taught by Mortimer
Adler. We have no doubt, though we do not actually know, that
Joe read all of the "Great Books" on Adler's list.
And, as has been mentioned, a very substantial part of Joe's
teaching, research and writing was in jurisprudence, with strong
emphasis on natural law.
Joseph Parker Witherspoon was a remarkable person,
who significantly influenced this law school, his many students,
the Austin community, and others, including some who never heard
his name.
<signed>
Peter T. Flawn, President ad interim
The University of Texas at Austin
<signed>
H. Paul Kelley, Secretary
The General Faculty
This Memorial Resolution was prepared by a Special
Committee consisting of Professors Corwin W. Johnson (Chairman),
Stanley M. Johanson, and J. Leon Lebowitz.
BIBLIOGRAPHY OF JOSEPH P. WITHERSPOON
Authored Works
The Legislative Process: Basis Problems in
Law-Making, Rev. Tent. Ed. Austin: The University of Texas
Law School, 1984.
Civil and Political Rights: Basic Problems
in Invidious Discrimination, Tent. Ed. Austin: University of
Texas School of Law, 1981; revised tent. ed., 1984.
The Legislative Process: Basic Problems in
Making and Administration of Law, Tent. Ed. University
of Texas Law School, 1981.
The Doctrine of Multicorporate Enterprise Conspiracy.
Austin: University of Texas School of Law, 1974.
Basic Problems in Civil and Political Rights:
the Jurisprudence of Social Change (1st tentative ed.).
Austin: 1972.
Basic Problems in Jurisprudence: The Justice
Factor in Decision Making. Austin: 5th ed. (tent.), 1974;
4th ed. (tent.), 1972; 3rd ed. (tent.), 1968.
Joint Venture Pipelines Under the Federal Antitrust
Lawns and the Proposed Alaska Pipeline Legislation. Austin:
University of Texas School of Law, 1972.
Administrative Implementation of Civil Rights.
Austin: University of Texas Press, 1968.
Cases and Materials on Antitrust Law, Temp.
ed. (reproduced from typewritten copy). Austin: 1963.
Administrative Discretion to Determine Statutory
Meaning: "The Middle Road" (part 4 of thesis).
Cambridge: 1961. Reprinted in 40 Tex. L. Rev. 751 (1962).
Administrative Law Supplement. Austin:
Hemphill's, 1950.
Cases and Materials on Antitrust Law, Temp.
ed. Austin: Hemphill's, 1950.
Supplemental Materials for Conflicts of Laws.
Austin: Hemphill's, 1950.
Articles
"Constitutionality of the Texas Statute Limiting
Liability for Medical Malpractice," (Medical Malpractice
Symposium). 10 Tex. Tech. L. Rev. 419 (1979).
"The New Pro-Life Legislation: Patterns and
Recommendations." 7 St. Mary's L. J. 637 (1976).
The Supreme Court and Administrative Impartiality:
A Testing Case for Judicial Review." 7 Tex. Tech. L. Rev.
245 (1976).
"Impact of the Abortion Decisions Upon the
Father's Role." 1 Jurist 32 (1975).
"Representative Government, the Federal Judicial
and Administrative Bureaucracy, and the Right to Life." 6
Tex. Tech. L. Rev. 363 (1975).
"Civil Rights Policy in the Federal System:
Proposals for a Better Use of Administrative Process." 74
Yale L. J. 1171 (1965).
"The Essential Focus of Statutory Interpretation
in Judicial Law Making in Relation to Statutes: A Symposium." 36
Ind. L. J. 411 (1961).
"Administrative Discretion to Determine Statutory
Meaning: 'The Low Road'." 38 Tex. L. Rev. 392 (1960).
"The Relation of Philosophy to Jurisprudence
in Human Purpose and Natural Law." 3 Nat. L. F. 68 (1958).
"Administrative Discretion to Determine Statutory
Meaning: 'The High Road'." 35 Tex. L. Rev. 63 (1956).
"Philosophy and the Law." 33 Tex. L.
Rev. 311 (1955).
"Force Majeure Clause and Partial Impossibility
of Seller's Performance." 27 Tex. L. Rev. 775 (1949).
"The New Plenary Jurisdiction of Reorganization
Courts," (comment). 26 Tex. L. Rev. 634 (1948).
"Carriers - Duty to Anticipate and Prevent
Injury to Passengers Growing Out of Racial Conflict (Case v.
St. Louis Public Service Co., 192 SW2d. 595 (Mo. Ct. App. 1946))" (casenote).
25 Tex. L. Rev. 416 (1947).
"State Legislation Banning Union Security
Agreements: The Due Process Issue and Judicial Self-Restraint," (comment).
26 Tex. L. Rev. 47 (1947).
Reviews
Stason, "Atoms and the Law" (1959).
48 Calif. L. Rev. 547 (1960) (with W. A. Seavey).
Cahn, "Moral Decision: Right and Wrong in
the Light of American Law." 1 Nat. L. F. 146 (1956).
C. P. Smith, "James Wilson, Founding Father,
1742-1798" (1956). 35 Tex. L. Rev. 294 (1956).
Snyder, "Preface to Jurisprudence: Text and
Cases" (1954). 8 J. Leg. Ed. 520 (1956).
Contributions
"The Human Life Statute Policy Issue," The
Human Life Bill, Hearings, Subcommittee on Separation of Powers,
Committee of the Judiciary, United States Senate, 97th Cong.,
1st Sess. (1982) 628.
"The Human Life Statute Policy Issue," Hearings
Before the Subcommittee on Separation of Powers of the Committee
on the Judiciary, United States Senate, on June 10, 1981 (December,
1981) (paper prepared at the request of the Subcommittee).
"The Constitutional Concept of the Person
and the Unborn Child," Congressional Record 122 (1976) S2690
et. seq. Originally published in "Proposed Constitutional
Amendments on Abortion," Hearing Before the Subcommittee
on Civil and Constitutional Rights of the Committee of the Judiciary,
United States House of Representatives, 94th Cong., 2d Sess.
on February 4-5; March 22-26, 1976 (December, 1976) 12-30 (paper
prepared at the request of the Subcommittee).
"Developments in the Law since the Supreme
Court Decisions in Roe v. Wade and Doe v. Bolton," Abortion,
Hearings Before the Subcommittee on Constitutional Amendments
of the Committee on the Judiciary, United States Senate, 94th
Cong., 1st Sess. IV. (1976) 524-537 (a paper prepared at the
request of the Subcommittee).
"Crisis," in B. Flicker (ed.), The Community
and Racial Crises (New York: PLI, 1969), 1966 229.
"Extra-Elective Representation: The Bureaucracy
as Representatives," in J. Roland Pennock and John W. Chapman
(eds.), Representation (New York: Atherton Press, 1968), 229.
"Oliver Wendell Holmes," in W. J. McDonall
(ed.), New Catholic Encyclopedia v. 7 (New York: McGraw-Hill,
1967), 57.
"Positivism in Jurisprudence," in W.
J. McDonall (ed.), New Catholic Encyclopedia v. 11 (New York:
McGraw-Hill, 1967), 623.
"Speech," before the Round Table on
Legislation, Association of American Law Schools, Dec. 28, 1953.
Audiovisual Works
"Intergroup Relations Problems in Texas," pt.
1-2 Austin: University of Texas Communications Center, 1969 (with
Barbara Jordan and Joe Bernal). [Phonotape 59]
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