We Stood on Their Shoulders: Are they strong enough for us now?
By Melissa Ludtke
In the late 1970s I took Major League Baseball to federal court and won. The charge: gender discrimination. The remedy: the federal court mandated equal access for women reporters to interview teams in their locker rooms.
As a baseball reporter with Sports Illustrated, I’d watched male reporters troop into locker rooms to talk with players, coaches and managers. Being a woman kept me out by the conventions of baseball, not the law. If I had tried to enter, the guards at the door would have stopped me. At the 1977 World Series, Major League Baseball Commissioner Bowie Kuhn certified my unequal status when he banned me from ever going into any team’s locker room. At first, my employer, Time, Inc., tried negotiating with Kuhn, but when he refused to budge, we turned to legal action.
Ludtke v. Kuhn was filed in Manhattan’s U.S. Southern District Court late in December 1977. By fate and the federal court’s custom of randomly assigning judges, Constance Baker Motley got my case. When I entered her courtroom in April of 1978 for our two-hour hearing, I did not appreciate how my judge’s groundbreaking work as an attorney with Thurgood Marshall’s NAACP Legal Defense and Education Fund built the legal scaffolding for my case. I knew she was the first Black woman appointed to the federal bench, in 1966 by Lyndon Johnson, but the breadth and lasting significance of her fights for equal rights in racial discrimination cases had escaped me. Nor back then did I know of Ruth Bader Ginsburg, who contemporaneously was working as director of the ACLU’s Women’s Rights Project to secure this same legal equality for women.
On September 25, 1978, Judge Motley ruled in my case. Kuhn’s action, she concluded, had violated the equal protection and due process guaranteed by the Fourteenth Amendment of the Constitution by “substantially and directly” interfering with my “liberty” to pursue my profession as a sports reporter.
Women of my generation benefited enormously from the legal advances Motley made as an attorney during the Civil Rights Movement. We came to age in hopeful times when many Americans believed that we were on our way to becoming a fairer and more just nation for all citizens.
Yet, on the 40th anniversary of Judge Motley’s decision, racial and gender divides still roil our nation. Unlike those more hopeful times, clear remedies now seem further outside our grasp. By the time of my lawsuit, the Civil Rights Movement had altered societal attitudes and established vital legal precedents. Those legal principles became the cornerstones of gender discrimination cases like mine, and in courtrooms throughout the U.S. they led to decisions favoring equal treatment for women.
As the 26-year old plaintiff in Ludtke v. Kuhn, I also did not appreciate the extent to which in advancing equal rights Motley and Ginsburg had faced down many doubters and overcome discriminatory obstacles put in their way. When Motley argued racial discrimination cases in Southern courts, locals refused to call her by her name, referring to her as “that woman.” As a Black woman in possession of the legal acumen to threaten White southerners ways of life, she faced danger. Undeterred, she argued high-profile cases there and, when she lost in state courts, she appealed them to the U.S. Supreme Court, where she won nine out of ten that she argued, setting enduring precedents.
In the early- to mid-1970s, when Ginsburg brought gender discrimination cases into court, judges, who were nearly all male then, scoffed at her proposition that gender warranted a strict level of judicial scrutiny similar to what the courts applied to race. Though first in her class at Columbia Law School, Ginsburg was rejected on the basis of her gender by Supreme Court Justice Felix Frankfurter, who would not hire her as his clerk. Law firms similarly turned her away. She persisted, and her astute strategizing of cases she chose to argue led U.S. Supreme Court Justice William Brennan in 1976 to raise the level of judicial scrutiny given to gender when applying the Equal Protection Clause.
By securing equality under the law, Motley and Ginsburg changed us as a people and a nation. “Protests are important,” Ginsburg reportedly said at the time, “but changing the culture means nothing if the law doesn’t change.” After Jim and Jane Crow laws fell, commensurate shifts in cultural norms and societal attitudes showed early promise. In intervening decades, however, we’ve experienced dips in our societal commitment to supporting equal rights. Now, in our time, amid frequent flare-ups of racial injustice and rampant misogyny, the early promise of the 1970s appears to be waning.
Stoked by politics of insult and resurgence of incivility, we are backsliding in our interactions around race and gender. And I find myself wondering if the hard-fought legal precedents of the mid-20th century are strong enough to help us bridge these odious divides. With the mid-term elections ahead, I see voting as a critically restorative measure. But outside of the voting booth, on what vehicles can we rely ?
Recent appointments to federal and state benches do not bode well for those looking to the courts to advance — or maintain — equal rights and promote justice. As I write this the U.S. Senate appears resolute in advancing Judge Brett Kavanaugh to Supreme Court, an appointment that his judicial record suggests does not portend good things for racial and gender equality. If courts are not the go-to vehicles they were in Motley and Ginsburg’s time, then can protest marches lead the way? I worry that as marches multiply, their impact dissipates. Still, mass gatherings have a way of regenerating moral courage and strengthening resolve, and as Robert Putnam and Malcolm Gladwell remind us, person-to-person connection is a reliable lubricant for societal change.
Through the decades, TV shows like “All in the Family” and “Mary Tyler Moore” reframed societal thinking and shifted social mores. Music, films, and theater retain their capacity to touch hearts and change minds in ways that advance justice. But are digital media — prodding us into silos of agreement — capable of being the transformative power that our mass media once were? Or have technological advances mostly widened our societal divisions? What could make them be unifiers instead?
As trust in our institutions erodes and political fractures steal hope for bold legislative leadership, it’s left to us — “we the people” — to mend our nation. Our democracy’s founders set equality under the law as our bedrock principle even though it took two centuries to live up to this promise across race and gender. In the era of my lawsuit, we made progress, yet perfecting justice for all must be on-going work of each generation.
Judge Motley’s decision 40 years ago changed my life and opened opportunities for women who followed me into sports media. My brief time in her presence inspired me to learn what motivated her. In her 1998 book unsurprisingly entitled “Equal Justice Under the Law: An Autobiography,” I discovered the influencers of her early years. In thinking back on the people who motivated me, I remember a day five years before Judge Motley and I met, when another groundbreaking woman delivered to me a message that has reverberated throughout my life.
This happened in June 1973 when Shirley Chisholm spoke to my graduating class at Wellesley College. As the first black woman elected to Congress, she exhorted us to engage in the two struggles of our time — the movements for racial and gender equality. “Anti-feminism and anti-blackness are two of the most strident issues whose bulwarks have been tumbling within the last few years because of the overt activities of both blacks and women,” she told us. “Senseless stereotypes, dismissing members on the basis of sex and color to participate fully in the American system have been broken, one by one, especially during the past decade.”
Peering down from the podium and speaking to all but our Black classmates, Chisholm told us, “If I can do it as a black woman, you can do even more as educated white women.”
With my lawsuit, I answered Chisholm’s call, and with her decision, Judge Motley affirmed another marker for equal rights.
In my mid-sixties now, Chisholm’s words still ring loudly for me. I am trying to live up to them, Shirley. I promise.##
Melissa Ludtke was the plaintiff in Ludtke v. Kuhn, the federal court case that opened locker rooms to women sports reporters in 1978. She’s writing a social history narrative about her case called “Locker Room Talk: A Woman’s Struggle to Get Inside.”
