As our nation takes the day to celebrate the legacy of the Rev. Dr. Martin Luther King, Jr., for those of us at FIRE it’s worth pausing once again to consider the contributions of the movement King came to represent to the conception of First Amendment and due process rights FIRE continues to defend today. The reality is that FIRE would not and could not exist if not for two movements. First is the Enlightenment, which brought us (among many other things) the United States, the Bill of Rights, and the idea — enshrined in our founding documents, if not in practice — that “all men are created equal.” Second is the African-American civil rights movement of the 1950s and 1960s, which set the modern template for successful and peaceful activism. Without that movement’s example, it’s hard to imagine how FIRE, along with countless other groups of every political persuasion, would exist and thrive today.
That’s why I am so pleased to commend to you today this article in The American Prospect by Professor Randall Kennedy, a former clerk for United States Supreme Court Justice Thurgood Marshall, who is Michael R. Klein Professor at Harvard Law School. As one of America’s best-known legal scholars and author of too many publications to count, Kennedy is (or should be) an obvious potential candidate to replace Drew Gilpin Faust, who is stepping down as president of Harvard. I urge those who follow FIRE, or those who have even a passing interest in how campus rights came to their full flowering, to read the article in full. Titled “The Forgotten Origins of the Constitution on Campus,” Kennedy notes at the outset of the article that,
We should recall that in order to more militantly battle Jim Crow segregation, black high school and college student activists in the Deep South brought the federal Constitution to campus. They initiated the lawsuits that prompted judges to recognize that students at public schools are entitled to federal constitutional rights to due process and free speech. In the history of anti-racism, their demands were not atypical. Ardent champions of racial justice have typically been ardent champions of civil liberties. The Second Reconstruction of the 1960s, for example, prompted not only the emergence of law aimed at undoing racial hierarchy; it also prompted the growth of expansive constitutional doctrines on free expression.
There are those on campus today who argue that free speech is a scam, is unnecessary, or is a tool for the exclusive use of oppressors of various kinds. While our society’s respect for free speech and expression means — and must always mean — that students, faculty, and administrators have every right to argue for the elimination of freedom of expression, that doesn’t make their argument correct. To the contrary, history indicates that it is gravely, grievously wrong. Kennedy relates the story of one Alabama State student, Bernard Lee, who was expelled for the “offense” of demanding to be served at a white-only snack bar in the county courthouse. Lee, who later served alongside King, wrote the following to Alabama governor John Patterson, who pushed for the expulsion of Lee and other students involved in the sit-down strike.
We went to the snack-bar not as hoodlums, but in the same manner and spirit in which other college and university students have done in other parts of the country. Our purpose was to express our resentment of a scheme that fails to recognize its responsibility to decent and orderly persons of all creeds, color or nationalities. …
Our cause is just. We are asking that you study it with an open mind and give President Trenholm the authority to settle this issue with us.
We are reasonable and considerate. We may be crushed, but we shall not bow to tyranny.
Lee, King, and the many other figures in the civil rights movement had the courage of their convictions. They had faith that if they were only given a fair chance to make their arguments, to express their convictions, and to bring awareness to injustice, they would triumph. Looking back, it might seem like their victory was certain, but a quick survey of the state of the world shows that oppression and discrimination are more the rule than the exception. They won because despite the legally institutionalized oppression of the Jim Crow South, America had also dedicated itself to ideals that ran deeper still: the ideas of free speech and equal justice under law. This is America’s great advantage: our protections of freedom of speech, expression, press, and conscience make it possible to correct our own mistakes. At our best, we persuade our fellow citizens rather than rule over the less powerful. Martin Luther King and Bernard Lee understood that this was the promise of America. On this day, when we celebrate King’s legacy, I hope we come to fully understand it as well.