Niki Schwartz, Oral History
Recorded: July 22, 2020
Interviewed by: Elizabeth Campion
Transcribed by the Kent State University Research & Evaluation Bureau
[Interviewer]: This is Liz Campion, speaking on Wednesday, July 22, 2020, at Kent State University’s Special Collections and Archives. As part of the May 4 Kent State Shootings Oral History Project, we are recording an interview over the telephone today. Could you please state your name for the recording?
[Niki Schwartz]: Niki Schwartz.
[Interviewer]: Thank you. [00:00:25] I would like to begin with some brief information about your background, so we can get to know you a little bit better. Could you tell us where you were born and where you grew up?
[Niki Schwartz]: Right. I was born in Pittsburgh. When I was six months old, my parents moved from my father’s hometown, which was Pittsburgh, to my mother’s hometown, which was Columbus, Ohio. And that’s where I grew up, in Columbus, until finishing [The] Ohio State University.
[Interviewer]: Okay. Thank you. [00:00:59] Where were you living, and what was your occupation in 1970?
[Niki Schwartz]: I was—let me just fill in the little gap between my leaving Ohio State, graduating from Ohio State Law School [editor’s clarification: The Michael E. Moritz College of Law is the professional graduate law school of The Ohio State University] in 1964, and being where I was on May 4th, 1970. My first job out of law school was as a law professor at the University of Toledo until 1968, when we moved to Cleveland and I began to practice law as a trial and appellate lawyer. And that was my occupation on May 4, 1970, in a small private practicing law firm.
And on May 4, 1970, I was in a trial, and the trial was a hearing before a suburban school board in which they were considering terminating the contract of the superintendent. My firm represented the superintendent, and the hearing board was the school board itself. It was a very contentious and lengthy trial that lasted almost six months on and off. But I spent the day of May 4, 1970, in the hearing at the board of education of the suburb where this was taking place, in Cleveland. And when I came out of the hearing at the end of the day, I learned two things, which is why the day is memorable to me. One thing was that four students had been shot and killed at Kent State during the day, and the other was a telegram from the United States Supreme Court advising me that they had agreed to hear a case I had filed there, an American Civil Liberties Union [ACLU] case challenging the constitutionality of the City of Euclid’s “suspicious persons ordinance.” So, it was a personally momentous day, as well as a momentous day at Kent State. Up to that time, I had no contact with Kent State University, and really knew little or nothing about them.
[Interviewer]: [00:03:33] After the shootings, how soon thereafter were you contacted for counsel and by whom?
[Niki Schwartz]: I was contacted by—I don’t remember whether it was the state office of ACLU or the national office. The national office, in the immediate wake of the shootings, had put out a press release offering to represent the families of the students who had been killed, pro bono, at no cost. And one of the four families, the family of Sandra Scheuer, had indicated to the national ACLU that they accepted the offer. So, I was asked—the reason I was asked is I was Chair of the Cleveland Legal Committee, at the time, of ACLU. I was asked to go to Youngstown, meet with the Scheuers, and have them sign the contract by which the ACLU would provide them with counsel for the wrongful death and civil rights actions, to be filed on behalf of the family, for the death of their late daughter.
[Interviewer]: Could you discuss your memories from meeting with the parents of Sandra Scheuer?
[Niki Schwartz]: Yes, I was not real comfortable with this arrangement, but I was doing it at the request of the national ACLU; it seemed to me a little unseemly at the time. But the one thing I remember is that the Scheuers were still sitting shiva, which is the formal, initial seven-day mourning period for the death of an immediate family member, and they were obviously very shaken and distressed by the killing of their daughter. And they confirmed that they had accepted the national ACLU’s offer and signed the agreement that I had been provided on which to get their signature. I was not going to be the lawyer handling the case, I was simply there as kind of administratively because I was—as chair of the Cleveland Legal Committee, I was kind of the closest lawyer affiliated with the organization to go to Youngstown and meet with them.
[Interviewer]: Absolutely. Thank you. [00:06:14] Could you explain your role in the ACLU, and can you also describe the establishment of the Kent State Project?
[Niki Schwartz]: Yes, as of May 4, my role in the organization was as a volunteer member of the Legal Committee of the Cleveland Chapter and in fact, I was chair of the Cleveland Legal Committee, and that was really my only role until July. And, in July, I was elected to be the state chair of the board, the Board of the ACLU of Ohio. And, in that capacity, I presided over—I think there were quadrennial board meetings, I don’t know if quadrennial was the right word, but every three months there would be a board meeting. And I worked with the full-time executive director, who really was the administrator of the ACLU of Ohio. And we worked together on many projects, along with the general counsel of ACLU of Ohio, who was a law professor at the Ohio State Law School. And I think it was the three of us who did a lot of the discussing and planning for what we called “The Kent State Project,” with the board being informed and, in fact, before a case was undertaken, unless it was an emergency, there was a requirement that the board approved the organization’s entry into or filing of the case. And we recognized that there was going to be a host of civil liberties issues arising out of the events of May 4, and that there would be a need for the ACLU to assert and defend the civil rights and civil liberties that might be in peril as a result of those events.
[Interviewer]: In reading about some of the trials that took place, I saw the ACLU had won major class action suits in regard to the students whose dorms were searched without warrants. Were you a part of that?
[Niki Schwartz]: I was not a part of the case. I was a part of the process of deciding that the ACLU would bring such a case. And ACLU typically operated, at the time, with volunteer lawyers, rather than paid staff lawyers. What had happened was, after the shootings, the university was closed and the students sent home. And, after the university had been closed and the students sent home, there was a massive search and seizure of all the dormitories and dormitory rooms. And there was a press conference held at which they displayed various items found during the search and seizure. In retrospect, it was a pretty tame collection of stuff that they gathered, but it was believed by the ACLU that it was an extremely unconstitutional search, in violation of the Fourth Amendment, there being no warrant and no particular probable cause to search any particular room, it was just a general search of all dorm rooms, and the general search is what the Fourth Amendment was designed to prevent. The ultimate decision of the court was that it was an illegal search, and the governments involved were required to return the seized items to the students.
[Interviewer]: Okay. And following that search, you were contacted by Craig Morgan, the student body president at Kent State. Can you discuss representing him?
[Niki Schwartz]: Well, there were a few intervening events. In a number of the cases of the Kent State Civil Liberties Project, there was a need for a student representative to be a named plaintiff. And because Craig Morgan was the student body president, he had been a candidate for student body president as of May 4. The election was held by mail after the university was closed, and he won the election to be student body president. Because he was student body president, he was a named plaintiff in a number of the lawsuits and class actions filed by the ACLU over the course of the next few months.
Now, one of the things that happened was that the state convened a grand jury in Portage County. And sometime, I think it was in October, the grand jury issued an indictment, and indicted twenty-three students, a professor, and one outsider for rioting. That was the community’s response to the events of May 4, was to indict the rioters, or people they believed to be rioters, and one of those indicted was Craig Morgan. And, as of that time, I hadn’t personally met Craig Morgan, but I was contacted by him and his family and asked to represent him in defending that indictment. And the national ACLU wanted to be a participant in the defense of Craig Morgan; he was the best and purest case, and I’ll explain that in a minute. They wanted to be a participant in that case and they asked me to agree to handle the case as pro bono, as an ACLU lawyer, rather than as private counsel for Craig Morgan. And, as an inducement, they offered to provide an illustrious co-counsel to work with me, and that was in the person of Ramsey Clark, who’s a lawyer from New York, who had been the Attorney General of the United States in the last couple years of the [Lyndon B.] Johnson administration. So, he was less than two years removed from having been Attorney General of the United States, and it was a welcome opportunity to work with him. And so, I did, and we handled the case together. And frequently, when you see people who are heroes close up, they have feet of clay, but Ramsey Clark was, and I assume he’s still living [editor’s clarification: since recording, Former United States Attorney General, Ramsey Clark, died on April 9, 2021], a wonderful man who really believed in the principles he espoused, and it was a pleasure to work with him.
[Interviewer]: Yeah, that had to be something to work with the former Attorney General of the U.S. That’s very impressive. I see that Craig Morgan’s case was ultimately dismissed. What were your feelings on that, and what were your reactions?
[Niki Schwartz]: All right, let me back up a little bit as background to the answer to that question. A number of the defendants had their lawyers go into federal court to try to enjoin the prosecutions. And there was a trial in federal court, before Judge William K. Thomas, who was maybe the finest judge on our federal court. There was a trial on the issue of whether or not the federal court should enjoin the prosecutions, the argument being that this was an attempt to intimidate and to displace blame on the students for the conduct of the state, and the state government, and the National Guard. And it was a lengthy trial held. We did not join in that case on behalf of Craig Morgan, feeling that Craig had been out there as a peace monitor, had not been a rioter. We were unaware of any evidence that Craig was involved in rioting. And we were anxious, at the time, to have a trial where he could be proved not guilty. And we thought going to federal court to try to enjoin the prosecutions might suggest otherwise, so we didn’t participate in that case.
And the case had an interesting outcome in that Judge Thomas, who was a very much a by-the-book judge, ruled that the plaintiffs had not proven what the case law at the time required, which was that the prosecution had been brought without any realistic hope of getting convictions, but had been brought to intimidate and chill the exercise of First Amendment rights. And he found that level of proof—that fact had not been proven by the plaintiffs, and therefore, he denied the action to enjoin the prosecutions.
However, he ruled that a report issued by the grand jury with the indictments had prejudiced the defendants’ rights to get a fair trial in the state court. And the report was one which, in effect, reviewed the events of the weekend of May 1 through 4, concluded that there had been rioting going on and who was responsible for it, and in effect, pronounced the defendants they just indicted guilty of what they were charged with. And the defendants argued and Judge Thomas found that that prejudiced the right of the defendants to get a fair trial. And so, he ordered that the report be expunged from the file and, to dramatize that, he ordered that there will be a ceremonial public destruction of the document. And, at the time, I thought, Well, that’s not very much relief. But actually, it turned out to be very perspicacious on his part, because I think that it ultimately led to discrediting the prosecutions and played a significant role in the ultimate decision of the state to dismiss all but a couple of the cases, one of which was Craig Morgan’s.
Now, we wanted a trial for Craig Morgan—let me talk a little bit about Craig Morgan. And the reason why he was such a pristine example of the phenomenon we were concerned about was he was not a radical of any kind. He was from an upper-middle-class suburb of Columbus, he was in the advanced ROTC program, he wanted to have a military career, and he was the antithesis of all the slurs about hippies and radicals that were being tossed at the students who had participated in the events of May 4. So, we wanted the opportunity to demonstrate that. We were relieved that the prosecutions were ultimately dismissed, but we were a little disappointed we didn’t get a chance to demonstrate Craig’s total innocence.
[Interviewer]: Right. Could you explain what Craig’s feelings were, could you sense any emotions? I mean, that had to have been overwhelming at such a young age to be going through these trials and what not.
[Niki Schwartz]: Well, Craig was very courageous, felt he had done nothing wrong, felt that the hysteria in the community against the students was most unwarranted, and so, that was one of the reasons why he was ready, willing, and able to cooperate in the various pieces of litigation brought by the ACLU to vindicate civil rights, civil liberties to try to place the blame for the shootings on the state government and National Guard, and not on the students. And Craig was steadfast in standing up to what had to be enormous pressure for a young man who, at the time, couldn’t have been more than twenty-one, he was a senior in college. And I have enormous respect for Craig, and I regarded it as an honor to represent him, we’ve been friends ever since. After he graduated, he did go into the military for a career in the military. After seven or eight years, he decided he didn’t want to continue a career in the military, he wanted to go to law school and he applied to Yale Law School, asked me to write a letter of reference for him. I had recent occasion [00:22:14] to go through my files and look at my letter of reference. It was so glowing, it would have supported his nomination as Attorney General of the United States, and he hadn’t even been to law school yet! But he then went to Yale Law School, got a law degree, went initially to Arizona and then to Austin, Texas, where he’s had a very successful career as an appellate lawyer.
[Interviewer]: Wow, that’s really incredible to go through all of that and come out on the other side. I see, in 1971, I believe it’s May 1971, he was re-arrested as he was a Peace Marshal at a commemorative demonstration. I know the charges were dropped. Were you at all involved with that?
[Niki Schwartz]: I probably was. I don’t have a vivid recollection of it, but I probably was, and it was the one-year anniversary, I think, commemoration.
[Interviewer]: Yes.
[Niki Schwartz]: And ultimately, the case—I think there was an ACLU case file on his behalf for wrongful arrest, which was ultimately settled for $5,000 for Craig and others who had been arrested wrongfully at that time.
[Interviewer]: [00:23:46] In addition to representing Craig Morgan and the Scheuer family, I see mentioned that a former client of yours was shooting victim, Alan Canfora. Can you speak a little bit of what capacity you dealt with Alan?
[Niki Schwartz]: Alan Canfora was not a former client of mine. And I didn’t know Alan Canfora at the time. I subsequently met him, of course. He was one of the nine students. Four students were killed, and nine students were shot and wounded. He was one of those, and I subsequently met him. I got to know him better as a result of two things. One, I came to represent his sister, who was a teacher in a suburban school system who was fired for what we believed was her notoriety as one of the Kent State student demonstrators. She hadn’t been injured by the shootings, but she had been a participant in the demonstrations. And so, I represented her in a case that challenged her termination of her contract. I can’t remember the outcome of that case now. It didn’t go to trial, it was settled and she ultimately, I think, went on to teach at another school district nearby. She was an outstanding teacher and a very interesting person. And so, as a result of representing her, I got to know Alan. I also got to know Alan because, many years later, my son went to Kent State to get a master’s degree in journalism, got active in the May 4 Committee, and met and became friends with Alan. So, that was my contact with Alan. But I never represented Alan.
[Interviewer]: Okay. [00:26:04] Is there anyone else that you had met throughout your time in legal representation that really made an impact on you during that time, whether it was someone in co-counsel, any of the victims’ families?
[Niki Schwartz]: Well, I think the people who impressed me the most, in addition to Craig, was that Craig, having been run for and becoming student body president and presiding over their student government, he had a kind of political team of fellow students who worked with and for him. And I was very impressed with them. I remember, we had a party at our house for Craig and his political allies and they were great kids. They were all undergraduates in the third or fourth year of their student careers at Kent State. And they were very impressive people and I came to know a number of them and had continuing relationships with some of them, although I haven’t had much contact with them in recent years.
[Interviewer]: [00:27:19] What was your sense of the prevailing attitudes surrounding the civil liberties cases, whether from a community standpoint, media, and so on?
[Niki Schwartz]: Well, the media was avid to report anything that were related to the events at Kent State, so there was no difficulty getting media coverage for our cases. I think that the dominant attitude of the community was unfortunate and I will tell a little story that illustrates this. The community blamed the students for what had happened. And I remember, that summer, being at a dinner party across the street and one of the women at our table, when the subject of Kent State came up, said, “They got what they deserved.” Well, I was a little less diplomatic at that age, fifty years ago, than I am now. And I just erupted, because I knew that some of the students had supposedly thrown rocks or thrown tear gas canisters back at the Guard, or so on, which they shouldn’t have done, but those weren’t capital offenses. But Sandy Scheuer wasn’t even part of the demonstration, she was walking on her way to her one o’clock class when she was killed by a stray bullet. So, to hear this woman say, “They got what they deserved,” just outraged me. But unfortunately, there was a lot of that attitude in the community and I think the grand jury indictment, the state grand jury indictment, was one of the ways the community expressing its indignation at the students.
[Interviewer]: We’ve heard that a lot, those—
[Niki Schwartz]: I’ll bet you have.
[Interviewer]: Yeah. And it is disheartening, especially when you learn more about the families, it’s very sad. [00:29:45] How long did you provide legal counsel representation for May 4 related cases after 1970? We’ve heard that a lot of them last months, even years, so just curious about kind of the timeline of how long you were involved with those.
[Niki Schwartz]: I’m going to guess that the ACLU cases, probably I was involved in one aspect or another. I didn’t try any cases, I was more involved administratively than as technically as lawyer, except for Craig Morgan, who I did personally represent. I’m going to guess those cases went on for half a dozen years.
[Interviewer]: Wow.
[Niki Schwartz]: Even longer—this is the case that I had signed up, obtained the signature for the Scheuers, was the wrongful death and civil rights cases that had a lengthy history: went to the U.S. Supreme Court twice, came back for a retrial after the initial trial resulted in a verdict for the defendants, that got reversed and it came back for a retrial and it came back to Judge Thomas, and Judge Thomas convened everybody and hammered out a settlement. And that was probably seven, eight to ten years after the shootings on May 4. And the settlement was one in which it he’d crafted a statement of regret that everybody ultimately agreed to, which didn’t include an apology but a statement of regret, on behalf of the state government, and a payment of $675,000 to the plaintiffs. That’s not a lot of money for four students killed and nine injured. One of whom, Dean Kahler, was rendered paraplegic and has spent his life in a wheelchair as a result of the injury he sustained at Kent State on May 4. So, the $675,000 was a token rather than a meaningful recovery.
[Interviewer]: [00:32:36] Could you explain the reactions of the families, particularly the Scheuers, when the statement of regret was made and the settlements?
[Niki Schwartz]: Well, I actually wasn’t involved in those cases, and so I didn’t have continuing contact with the Scheuers once I had gotten them to sign the contract. I wasn’t their lawyer, other ACLU lawyers were, so I really can’t answer that question.
[Interviewer]: Okay.
[Niki Schwartz]: I might have had some hearsay understanding of the answer to that question many years ago, but I don’t have it now.
[Interviewer]: [00:33:21] Overall, what do you think that the ACLU’s biggest victory was from all the trials that occurred?
[Niki Schwartz]: Oh, that’s a good question. Well, I think, in general, it was sensitizing the public and the government to the civil rights and civil liberties issues that were imperiled by Kent State [Shootings] and its aftermath. As I look at the cases, I don’t know if I can pick out one that I thought that I would characterize as the biggest victory.
There was a case named Frechert (?? [00:34:20]) vs. Brown, which was an ACLU federal suit to overturn a ban on students voting in academic communities. And the state eliminated that ban as a result of the lawsuit and the case was dismissed. That was a big win for students.
The other cases had a mixed bag of outcomes, and to what extent the Scheuer and the other three cases—their trip up and down the federal court system before ultimately being settled, to what extent the appellate decisions giving them the right to go to trial might have impacted the atmosphere, the state government, and precluded subsequent repetitions of that kind of experience, I don’t know, that would be pure speculation. But, I think something was accomplished by that.
[Interviewer]: [00:35:57] Could you talk about your relationships with some of the other staff attorneys, on either which side, and just how you went about preparing for these trials?
[Niki Schwartz]: Well, with the exception of the criminal case against Craig Morgan, I really wasn’t primary counsel in any of these cases. So, I wasn’t involved in trial preparation. About ten years ago, I was asked by the Ohio Law Librarian’s Association to speak to their annual meeting which, that year, was in Canton. And they had a custom of having a speaker with having something to do with the area in which their annual meeting was being held. And so, they looked at the map, and Kent State was the subject, and so they wanted me to really talk about the legal history of Kent State, which I did and really prepared an outline, that is what I reviewed in preparation for this discussion.
And one of the things that I found interesting, in the course of that review, was that after the settlement of the wrongful death cases, there were all kinds of issues about what to do with the evidence that both sides had gathered in preparation for the various trials and appeals. And Judge Thomas issued a lengthy opinion in which he indicated that, generally, the documents in question should go back to whoever had produced them in the first place. And some of which would be open, and some of which would not, and prescribed procedures that the holders of those documents would have to go through to review them and redact them and put them in some kind of form before they could be released or reviewed by other people. And it was so cumbersome that, really, nobody had the time and the resources to undertake the review that Judge Thomas had required.
And the problem is that the ACLU had many, many boxes of documents that didn’t have the time, money, staff to review. So, as of about eight years ago, those documents were still in boxes not available for public review and the ACLU didn’t have the resources to conduct the process that Judge Thomas had ordered. I don’t know what has happened since then, if anything. The ACLU, apart from those documents that could not be released according to court review, the ACLU had a ton of other documents and files that had ultimately donated to Yale University. They donated them to Yale because the ACLU and the plaintiffs were fearful of providing them to the ordinary historical archives, like the Ohio Museum [editor’s clarification: narrator is referring to the Ohio History Center located in Columbus, Ohio], that they didn’t want anything that the state controlled, so that’s why they ultimately settled on Yale as the custodian. And a woman who was working on her library science degree agreed to spend a month in New Haven to go through those documents and organize them, and I assume you have somebody who has discussed that or has provided you with the document that catalogs those documents.
But to me, one of the things that I concluded was most interesting was, and two of the questions that have never really been authoritatively answered is: why did the Guard fire? What caused the Guard to shoot? And was there an order to fire? And I have never seen a satisfactory answer to either question, and those are the continuing mysteries about the whole episode. And the answer may repose in the files of the federal grand jury that indicted the Guardsmen who were tried and found not guilty. And those federal grand jury records may answer the question that I haven’t seen answered to anybody’s satisfaction. And the question becomes, there’s some case law authority for the proposition that, after the lapse of a sufficient duration of time that there are no remaining current controversies about it and all of the participants are no loner alive, that there may be some authority to get a court to order release of grand jury documents for historical purposes. And it occurred to me that somebody who has a historical interest should be bringing such a case. That was about eight years ago. I don’t know if anybody has in the interim or if anybody will be, but that seems, to me, to be the thing that historians who are studying the events at Kent State should ultimately do.
[Interviewer]: Yes, in terms of those boxes that the ACLU has, would you or, I guess those boxes have evidence that was compiled for Craig Morgan’s trial?
[Niki Schwartz]: Good question, I don’t remember. We never got to a trial. So, and I don’t recall if there was any formal discovery—there probably was some formal discovery, those ACLU boxes may contain that information, I don’t know or remember. I tried to call the ACLU yesterday to find out what, if anything, had happened in the intervening eight years with respect to those boxes, whether they had found anybody who could undertake the task that Judge Thomas required or, alternatively, somebody who could go into federal court, to the judge who now occupies the slot that Judge Thomas had occupied, to try to get a revision of his opinion to make it more manageable, and I don’t know if that’s happened yet or not. But again, that’s something that the ACLU and those—although, the ACLU may not be the best party to do that, because they would be regarded as interested, as opposed to historians, who want to get access for purposes of compiling the history of those events.
[Interviewer]: Right, that would be something very interesting to look into, and I think it could answer a lot of questions that have been lurking fifty years later.
[Niki Schwartz]: Right. In your oral history interviews, have you come across anybody who’s dealt with any of that?
[Interviewer]: Not to my knowledge. I have to say, we’re just starting to get to kind of the legal representatives of this project so, hopefully, we hear something over the next few interviews. That would be very interesting to learn more about.
[Niki Schwartz]: Well, if you come across people who are interested in access to the documents as historians, not as parties in the controversies, you might refer them to me, and I can give them the benefit of what I found.
[Interviewer]: Okay. Great, absolutely.
[Niki Schwartz]: And suggestions for how they might go about it.
[Interviewer]: Okay. [00:45:48] I think one of my big questions for you is, could you discuss kind the long-term impact that the aftermath of the shootings and its trials had on your career and/or your personal life?
[Niki Schwartz]: Yes, I saw that in your questions and, in thinking about it, I don’t think it really had a significant impact on my career or my personal life. The reason is that I ultimately didn’t try any of the cases and so, my work was behind the scenes rather than things that got a great deal of public attention. And I compared it to an event later in my career. In 1993, I was asked by the Department of Corrections to come to the Lucasville Prison Riot to represent the rioting prisoners, and that got enormous publicity all around the world. And I was given inordinate credit for settling that riot and obtaining the surrender of the prisoners and the release of the remaining five hostages without further harm. And that made an enormous impact on my career in many, many ways in terms of getting my name known and enlarging my practice and in the esteem in which I was held around the state and the world. So, and I’m trying to think whether there’s anything that happened at Kent State that had remotely near similar impact on my life and career, and I can’t think of anything.
[Interviewer]: [00:47:58] Is there anything else you’d like to discuss that we haven’t covered yet?
[Niki Schwartz]: No, you did a good job.
[Interviewer]: Oh, okay, thank you very much. I think we’ll stop recording here, and I just want to thank you again for participating in the Oral History Project.
[Niki Schwartz]: You’re very welcome, I’m happy to be able to cooperate. And I mean it, if you come across people who want to consider spending and putting in a great deal of time and energy for historical purposes and want to talk about what’s available and where, I will be glad to talk to them.
[Interviewer]: Great, I appreciate that. Thank you.
[Niki Schwartz]: Okay, thank you.
[End of interview]
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