16 May 9 • 2019 jn 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 JN