16 May 9 • 2019
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Remembering the Life
and Legacy of
Judge Damon Keith
Community members recall Keith’
s ties
to the Jewish community.
jews d
in
the
D
amon Keith left our commu-
nity and our nation a better,
fairer place for all our peo-
ple, and future generations will be the
beneficiaries of his relentless pursuit
of justice.
My memories of
Damon from 55 years
ago remain vivid to
this day. His vision
was so clear and
compelling when he
became co-chairman
of the Michigan Civil
Rights Commission at
its inception in 1964,
and I became the Commission’
s first
general counsel.
The Commission took on issues
that were not yet established, such as
discriminatory practices in housing
and by city officials. As a lawyer, I
was advising caution, but Damon was
urging “full speed ahead.” Invariably,
his instincts were right because they
were grounded in fundamental val-
ues.
His opinions as a judge will stand
the test of time because he saw the
law as an instrument of justice.
Damon Keith’
s character provid-
ed timeless reminders of how fol-
lowing a moral path in life can bring
fulfillment and joy to those who
strive for it and lasting benefit for the
community in which one is a part.
Judge Keith had a special bond
with our Jewish community because
he understood that expressions of
hate and hateful actions against peo-
ple based on their being part of a
group are contagious and will unleash
violence in response. He understood
that silence in the face of hate speech
was aiding and abetting the perpet-
uation of that evil. Remembering
Damon will be a reminder of that
tragic truth. ■
Carl Levin is a former Michigan senator.
The Pursuit of Justice
Sen. Carl Levin
Moving the Constitution Forward
I
n my long career as a constitutional
law professor and civil rights lawyer,
it was my great privilege to have had
the opportunity for numerous interac-
tions with Judge Damon J. Keith.
Judge Keith was a pioneering judge
who rendered landmark decisions in
many constitutional cases, propel-
ling the Constitution
forward, so to speak,
to bring about racial
equality and the protec-
tion of individual rights
in the American consti-
tutional system.
I had followed some
of those landmark
decisions before I came
to Detroit and Wayne State in 1977.
In 1970, as a District Judge in Davis v.
School District of City of Pontiac, Judge
Keith found that the Pontiac School
District had intentionally made a series
of decisions about attendance zones
and school closures and openings that
resulted in racially segregated schools.
He ordered the school district to inte-
grate its schools.
In 1971, in United States v. United
States District Court, which has come
to be known as the “Keith case,
” Judge
Keith held that there was no “nation-
al security” exception to the Fourth
Amendment’
s warrant requirement,
so that the government’
s warrantless
wiretapping of suspects in a “bombing
conspiracy” case was an illegal search
under the Fourth Amendment. The
Supreme Court unanimously agreed
with Judge Keith. No warrant, no
wiretapping, “national security” or
otherwise. Ever since, the government
has always had to get a warrant for any
wiretapping in the name of “national
security.
”
In 1979, I wrote a friend of the court
brief for New Detroit Inc. in Baker v.
City of Detroit, where a Sixth Circuit
panel that included Judge Keith upheld
the City of Detroit’
s affirmative action
plan for the city’
s police department.
The court found that there had been
a long history of racial discrimination
against African Americans in the hiring
and promotion of police officers and
approved an affirmative action that
required the hiring and promotion of
one African American officer for every
white officer until a 50-50 percent ratio
had been achieved.
Perhaps Judge Keith’
s most famous
decision — and that for which he will
be long remembered — is Detroit Free
Press v. Ashcroft, in 2002, where he
wrote an opinion holding that an order
of the Attorney General closing depor-
tation hearings in “special interest”
cases violated the First Amendment.
The opinion included these immortal
words: “Democracies die behind closed
doors.
”
In 1995, I litigated an important
First Amendment case before Judge
Keith. Most of the players on Central
Michigan’
s basketball team were
African Americans from Detroit. They
used a colloquial term frequently used
by African American athletes that
means an athlete who is “fearless, men-
tally strong and tough.
” Although it’
s
meaning is clearly different, it sounds
like the derogatory “N-word,
” particu-
larly when used by whites. When the
university found out that the players
were using the term, and that the white
coach had used it to motivate the
players, they invoked the university’
s
“discriminatory harassment” policy.
They prohibited the players from using
that term and terminated the coach’
s
contract. I represented the players and
the coach in a First Amendment chal-
lenge to the policy and to the coach’
s
dismissal.
The policy was similar to the
University of Michigan’
s “discrimina-
tory harassment” policy, which I suc-
cessfully challenged in 1989 on behalf
of the Michigan ACLU in a case before
U.S. District Judge Avern Cohn. Judge
Keith wrote the opinion for the Sixth
Circuit. He agreed with Cohn that the
policy on its face was unconstitution-
ally overbroad and vague, in violation
of the First Amendment and enjoined
the university from enforcing it. The
coach’
s claim did not fare so well. Keith
ruled that his use of this term to moti-
vate the players was not speech on a
matter of public concern and did not
involve academic freedom. Although I
was disappointed with that part of the
opinion, I had to concede that his anal-
ysis was persuasive.
I treasure the opportunity that I have
had to interact with Judge Damon J.
Keith and engage in a remembrance of
that opportunity upon his passing. ■
Robert A. Sedler is Distinguished Professor of Law
at Wayne State University.
Robert A.
Sedler
Judge Damon Keith
continued on page 18
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