If you think this has been a bad year for immigrants in America, consider what happened in 1994 when California voters enacted Proposition 187. Proposition 187 would have denied health care, education and other social services to illegal immigrants. Teachers, health care workers, law enforcement officers and other civil service workers would have had to verify their clients’ immigration status and report suspected illegal aliens to federal authorities.
The day after Proposition 187 was approved, the Mexican American Legal Defense and Educational Fund (MALDEF) joined a team of organizations—including the American Civil Liberties Union (ACLU) and the League of United Latin American Citizens (LULAC)—to challenge its constitutionality. The ACLU’s Mark Rosenbaum was to be the plaintiffs’ lead counsel for the initial hearing, arguing that the law pre-empted the federal government from regulating immigration issues.
Enter Thomas Saenz, fresh out of law school. Saenz had offers to join some high-level law firms but chose instead to join MALDEF, hoping to make a difference in the world. Saenz, who had drafted a secondary challenge to Prop 187 on due process grounds, didn’t expect to play a large role. But the judge in the case said he was interested in hearing the due process argument, and Saenz was thrust into the spotlight.
“Mark [Rosenbaum] asked if I would do the argument about the due process claim,” Saenz says of his baptism by fire. “I had little choice because my boss was sitting next to me. So I said yes. I had maybe an hour to put together my thoughts on due process.
“The argument was, quite honestly, designed to be a terminal loop,” Saenz continues. With a team of lawyers, he devised the argument as a clever tactic that would ultimately cause the law to be overturned on pre-emption grounds.
“Other people thought those were the weak arguments,” says Antonia Hernandez, MALDEF’s president and general counsel from 1985 to 2004. “We thought those were the strong arguments. The legal footing that we put forward that eventually got the law struck down—it was Tom who insisted on it. He has an uncanny ability to interpret the law that other people can’t seem to see.”
Because he fared so well in that initial hearing, Saenz took on an increasingly prominent role in the case, and eventually became co-lead counsel, doing many of the arguments for the plaintiffs in district court.
In a dozen years at MALDEF, Saenz won several stunning and precedent-setting victories, including the rollback of Proposition 187. Described by numerous colleagues as one of the brightest young legal minds in the country, Saenz and his success at MALDEF attracted the attention of then-California Assembly speaker Antonio Villaraigosa.
When Villaraigosa was elected mayor of Los Angeles in 2005, he tapped the 39-year-old lawyer to be his legal counsel. Since then, Saenz has been instrumental in several of the mayor’s key achievements, including helping to create the legal framework that enabled Villaraigosa to gain partial control of Los Angeles’ sprawling school system.
When Saenz arrived at MALDEF in 1993, he was assigned to monitor the various anti-immigrant ballot initiatives that were floating around California at the time. Proposition 187 may have been the most extreme of all the proposals, but it was hardly the only one. For example, the 1998 California ballot initiative Proposition 227 required all public school instruction to be conducted in English. MALDEF again worked with a coalition of groups, and Saenz began the case as one of a team of lawyers. “Eventually, a claim that was my responsibility became the only claim left in the case.”
Ultimately, however, the courts refused the plaintiffs’ request for an injunction, and English-only instruction remains the law in California schools. “We weren’t so successful in that case,” Saenz says. “We made some very good arguments, but unfortunately, the result was not in our favor.”
More fruitful was a 2004 class action suit against Abercrombie & Fitch on behalf of women, Latinos, blacks and Asian Americans who were denied high-visibility positions in the company’s stores. “Abercrombie & Fitch was pursuing a certain look; it was reflected in their models and they wanted their employees to look like their models,” says Saenz. “As a result, they had abysmal employment figures.”
Saenz and his fellow lawyers at MALDEF, the NAACP, the Asian Pacific American Legal Center and the private law firm Lieff Cabraser saw an obvious instance of employment discrimination. But as the case dragged on through months of mediation, Saenz was surprised to see arguments in the media questioning the need for employment discrimination laws at all.
Saenz says the public and media discussion of the case focused on “what I consider to be the really extreme idea that somehow employers have a right to hire whoever they want based on whatever discriminatory prejudices they might want to employ.” In the end, though, Saenz and his colleagues reached a $50 million settlement: $40 million for the class of women, blacks, Latinos and Asian Americans, and $10 million in attorney’s fees and injunctive relief.
“Tom is an extraordinarily well-trained and creative lawyer,” says Vilma Martinez, a partner at Munger Tolles & Olson, and someone Saenz considers a mentor. They first met when Saenz was a summer associate at her firm during the 1980s. “But what pulls it all together,” Martinez says, “is that he cares so much about what his clients are looking for, and how best to get those needs met.”
Saenz’s legal victories haven’t gone to his head. “I lost more cases than I won at MALDEF,” he’s quick to say. But he allows himself the luxury of remembering “we were doing cutting-edge civil rights cases in a court system that’s not as amenable to cutting-edge civil rights cases as it once was.”
Soft-spoken and modest, he credits most of his successes to hard work, citing persistence and tenacity as two of his most valuable traits. “You’ve got to keep at it.” But he also gives his mother and father a lot of credit for stressing the value of education—both of his parents went to night school to get their associate degrees while Tom was growing up—and for instilling in him a sense of social justice.
Saenz’s father, Edward, worked for the L.A. Department of Water and Power, starting as a cable splicer and working his way through the civil service system to a district superintendent before retiring. He was also strike captain for the International Brotherhood of Electrical Workers union. “I remember waiting in the car while he took care of business on the picket line,” Saenz says. Saenz’s mother, Margaret, was at times a stay-at-home mom, a classroom aide and a secretary. She was instrumental in teaching him “about advocating for others and recognizing injustices when they might be occurring.”
Growing up in the Alhambra suburb of Los Angeles, Saenz enjoyed what he calls a “typical blue-collar” childhood. Both his parents were born in the United States and spoke mostly English with their children. “To be honest,” Saenz says, “my Spanish is not that good.”
Tom and his older brother, James, shared a bedroom until they went to college: Tom to Yale, James to West Point. Tom skipped eighth grade, so the brothers graduated from college in the same year, 1987, whereupon Tom went to Yale Law School and James became an officer in the U.S. Army Special Forces. He saw action in the first Gulf War and is currently a lieutenant colonel stationed in Vietnam.
After graduating from law school, Tom spent two years clerking, first for Judge Harry L. Hupp in District Court, and later for Stephen Reinhardt, a federal judge on the 9th Circuit.
At MALDEF, he worked on the issue that has helped define his career: the rights of day laborers. “It was the first thing I was assigned to at MALDEF and an issue I’ve been involved with my entire career,” he says.
The notion of First Amendment rights for day laborers is “an area of the law that Tom created,” says Bill Lann Lee, former assistant attorney general for civil rights at the Department of Justice during the Clinton administration. Now a partner at Lieff Cabraser, Lee also collaborated on the Abercrombie suit. “It was Tom who brought about systematic litigation on behalf of day laborers. It’s a brilliant legal strategy, and his cases were well executed and well argued.”
In the landmark case CHIRLA v. Burke (2000), Saenz and MALDEF successfully argued that a Los Angeles county law forbidding day laborers from soliciting work from passing drivers was unconstitutional. Although the CHIRLA decision is not binding (an appellate ruling is expected soon), “it was pretty persuasive reasoning that you were running a great risk” by continuing to enforce laws against soliciting day labor, Saenz says.
Since the CHIRLA decision, MALDEF has filed suit against five more California cities and threatened litigation against at least a half-dozen others. “We have succeeded in every one,” Saenz says. Nevertheless, a recent MALDEF investigation unearthed 50 cities in California that still have anti-solicitation laws on the books.
“California shamefully leads the nation” in these kinds of laws, Saenz says. Day laborers are “honest, hardworking immigrants only trying to take care of their families, and they’re targeted because of nativism, because of xenophobia.” He says he’s especially proud of his work on behalf of day laborers “not just because we won, but because we worked very closely with day laborers … and in the face of some very vicious forces on the other side.”
Saenz views many of the antisolicitation laws as part of a burgeoning tide of hostility toward immigrants. “When the economy isn’t going so well, folks sometimes look for scapegoats,” Saenz says. “People target what they see, and what they see first are guys on street corners looking for honest labor.”
For that reason, Saenz views defense of day laborers as critical to a broader immigrants’ rights agenda. “So many people have been here for so many years, contributing to our economy, paying taxes, performing work to support our industries … and have been forced to do that in the shadows, without the full protection of the law because of their status. The effects that that shadow casts on them and their citizen children is the greatest challenge we face, and one I hope we resolve in a manner that’s sensible for our nation but is also humane and cognizant of human rights and dignity.”
He’s dismayed by the tone of the current dialogue about immigration, both in California and nationally. “There is a growing exploitation of latent nativism by certain political forces who view the immigration issue as a valuable wedge issue,” Saenz says. “That was a phenomenon in the 1990s. It’s even more of a phenomenon now today because there are avenues of communication for the lunatic fringe that otherwise wouldn’t have access to mainstream media.”
Saenz gives Villaraigosa high marks for his handling of the spring 2006 demonstrations, when a half-million people took to the streets to protest a proposed federal crackdown on illegal immigration. During one of the student protests, Villaraigosa invited six high school students to come to City Hall for a “productive and informative and very articulate discussion about this issue and why it’s so important to them.”
He contrasts the mayor’s action with segregationist governors like George Wallace and Orval Faubus, who stood in the doorways of government buildings during the 1960s to prohibit black students from integrating schools and universities in the South. “I know if I was a teenager raising an issue like this, and, instead of facing opposition, was invited in by the mayor of the second-largest city of the country and engaged in positive discourse about the issue, it would make a difference.”
Saenz is alert to critics who say the mayor must represent all of Los Angeles, not just Latinos. “He’s made a conscientious effort to reach out to all the different demographic groups in the city and he has included them in his commission appointments and in hiring of staff. He’s the most successful mayor in the history of the city in reflecting the makeup of the city.”
But beyond the racial composition of City Hall, Saenz praises Villaraigosa’s creative solutions to bureaucratic problems. “His finding funding for adding 1,000 new cops is a great success. He has been a careful and aggressive manager in attempting to change the city’s bureaucracy to better serve the community. And I know this because I’ve heard it from many people inside the city: He has succeeded at making ethics a primary concern.”
Saenz also praised the mayor’s campaign to wrest control of the Los Angeles school system. “He’s sparked a debate that’s unprecedented on the critical issue of education.” (Note: At press time, Villaraigosa’s takeover of the schools had just been approved by the Legislature and the school board had filed a legal challenge.)
Saenz sees a bright future for his current boss, and for Latinos in general in politics. “There’s still a tremendous gap between the Latino population and voter participation, but there’s nothing but expansion in [both] areas.” Saenz has no intention of running for elected office of his own, but he can imagine performing his same role for Villaraigosa if the mayor moved to higher office.
He could also imagine returning to MALDEF and being the outsider again. “I believe in the essentiality of a strong organization like MALDEF for Latinos nationally.”
Hernandez, Saenz’s former boss at MALDEF, sees benefits from the power of public office, but also recognizes the freedom that legal defense funds allow. “You’re not restrained by anybody else’s agenda.” She speaks glowingly of Saenz’s prospects, no matter where he ends up: “In whatever position he assumes, Tom will be a role model not just for the Latino community, but for all lawyers who want to use the law for social change.”
Unmarried and childless, Saenz says he can also envision a future in which he spends a little less time at the office. “I’m married to my work,” he says, “but I’m looking for an amicable separation.”