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.

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in 
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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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