Thurgood Marshall on Bakke

by Thurgood Marshall

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Supreme Court of the United States
Washington, D. C. 20543

chambers of
JUSTICE THURGOOD MARSHALL

April 13, 1978

 

Re: No. 76-811, Regents of the University of California v. Bakke

 

MEMORANDUM TO THE CONFERENCE

 

I repeat, for next to the last time: the decision in this case depends on whether you consider the action of the Regents as admitting certain students or as excluding certain other students. If you view the program as admitting qualified students who, because of this Nation's sorry history of racial discrimination, have academic records that prevent them from effectively competing for medical school, then this is affirmative action to remove the vestiges of slavery and state imposed segregation by "root and branch." If you view the program as excluding students, it is a program of "quotas" which violates the principle that the "Constitution is color-blind."

If only the principle of color-blindness had been accepted by the majority in Plessy in 1896, we would not be faced with this problem in 1978. We must remember, however, that this principle appeared only in the dissent. In the 60 years from Plessy to Brown, ours was a Nation where, by law, individuals could be given "special" treatment based on race. For us now to say that the principle of color-blindness prevents the University from giving "special" consideration to race when this Court, in 1896 licensed the states to continue to consider race, is to make a mockery of the principle of "equal justice under law."

As a result of our last discussion on this case, I wish also to address the question of whether Negroes have "arrived." Just a few examples illustrate that Negroes most certainly have not. In our own Court, we have had only three Negro law clerks, and not so far have we had a Negro Officer of the Court. On a broader scale, this week's U.S. News and World Report has a story about "Who Runs America." They list some 83 persons -- not one Negro, even as a would-be runnerup. And the economic disparity between the races is increasing. According to the latest report of the United States Commission on Civil Rights:

"While the average jobless rate for whites fell from 7 percent in 1976 to 6.2 percent in 1977, the average unemployment rate for blacks increased from 13.8 percent to 13.9 percent during that period. The black unemployment rate thus was more than twice as great as that for whites during 1977. For workers of Hispanic origin, the average jobless rate dropped from 11.5 percent in 1976 to 10 percent in 1977 but unemployment among Hispanic was still 1. 6 times higher than that among whites."

The dream of America as the melting pot has not been realized by Negroes -- either the Negro did not get into the pot, or he did not get melted down. The statistics on unemployment and the other statistics quoted in the briefs of the Solicitor General and other amici document the vast gulf between White and Black America. That gulf was brought about by centuries of slavery and then by another century in which, with the approval of this Court, states were permitted to treat Negroes "specially."

This case is here now because of that sordid history. So despite the lousy record, the poorly reasoned lower court opinion, and the absence as parties of those who will be most affected by the decision (the Negro applicants), we are stuck with this case. We are not yet all equals, in large part because of the refusal of the Plessy Court to adopt the principle of color-blindness. It would be the cruelest irony for this Court to adopt the dissent in Plessy now and hold that the University must use color-blind admissions.

 

Sincerely,
T.M.