[Marshall's dissent represented one of the most passionate opinions of any case before the 20th century Supreme Court.]
I agree with the judgment of the Court only insofar as it permits a university to consider the race of an applicant in making admissions decisions. I do not agree that petitioner's admissions program violates the Constitution. For it must be remembered that, during most of the past 200 years, the Constitution as interpreted by this Court did not prohibit the most ingenious and pervasive forms of discrimination against the Negro. Now, when a State acts to remedy the effects of that legacy of discrimination, I cannot believe that this same Constitution stands as a barrier.
[Marshall begins by reminding his colleagues of the legacy of slavery. Click here to see how he applies these facts.]
Three hundred and fifty years ago, the Negro was dragged to this
country in chains to be sold into slavery. Uprooted from his homeland and thrust into
bondage for forced labor, the slave was deprived of all legal rights. It was unlawful to
teach him to read; he could be sold away from his family and friends at the whim of his
master; and killing or maiming him was not a crime. The system of slavery brutalized and
dehumanized both master and slave. 1
The denial of human rights was etched into the American Colonies'
first attempts at establishing self-government. When the colonists determined to seek
their independence from England, they drafted a unique document cataloguing their
grievances against the King and proclaiming as "self-evident" that "all men
are created equal" and are endowed "with certain unalienable Rights,"
including those to "Life, Liberty and the pursuit of Happiness." The
self-evident truths and the unalienable rights were intended, however, to apply only to
white men. An earlier draft of the Declaration of Independence, submitted by Thomas
Jefferson to the Continental Congress, had included among the charges against the King
"[he] has waged cruel war against human nature itself, violating its most sacred rights of life and liberty in the persons of a distant people who never offended him, captivating and carrying them into slavery in another hemisphere, or to incur miserable death in their transportation thither." Franklin 88.
The Southern delegation insisted that the charge be deleted; the
colonists themselves were implicated in the slave trade, and inclusion of this claim might
have made it more difficult to justify the continuation of slavery once the ties to
England were severed. Thus, even as the colonists embarked on a course to secure their own
freedom and equality, they ensured perpetuation of the system that deprived a whole race
of those rights.
The implicit protection of slavery embodied in the Declaration of
Independence was made explicit in the Constitution, which treated a slave as being
equivalent to three-fifths of a person for purposes of apportioning representatives and
taxes among the States. Art. I, § 2. The Constitution also contained a clause ensuring
that the "Migration or Importation" of slaves into the existing States would be
legal until at least 1808, Art. I, § 9, and a fugitive slave clause requiring that when a
slave escaped to another State, he must be returned on the claim of the master, Art. IV,
§ 2. In their declaration of the principles that were to provide the cornerstone of the
new Nation, therefore, the Framers made it plain that "we the people," for whose
protection the Constitution was designed, did not include those whose skins were the wrong
color. As Professor John Hope Franklin has observed, Americans "proudly accepted the
challenge and responsibility of their new political freedom by establishing the machinery
and safeguards that insured the continued enslavement of blacks." Franklin 100.
The individual States likewise established the machinery to protect
the system of slavery through the promulgation of the Slave Codes, which were designed
primarily to defend the property interest of the owner in his slave. The position of the
Negro slave as mere property was confirmed by this Court in Dred Scott v. Sandford, 19
How. 393 (1857), holding that the Missouri Compromise -- which prohibited slavery in the
portion of the Louisiana Purchase Territory north of Missouri -- was unconstitutional
because it deprived slave owners of their property without due process. The Court declared
that under the Constitution a slave was property, and "[the] right to traffic in it,
like an ordinary article of merchandise and property, was guarantied to the citizens of
the United States . . . ." Id., at 451. The Court further concluded that Negroes were
not intended to be included as citizens under the Constitution but were "regarded as
beings of an inferior order . . . altogether unfit to associate with the white race,
either in social or political relations; and so far inferior, that they had no rights
which the white man was bound to respect . . . ." Id., at 407.
The status of the Negro as property was officially erased by his
emancipation at the end of the Civil War. But the long-awaited emancipation, while freeing
the Negro from slavery, did not bring him citizenship or equality in any meaningful way.
Slavery was replaced by a system of "laws which imposed upon the colored race onerous
disabilities and burdens, and curtailed their rights in the pursuit of life, liberty, and
property to such an extent that their freedom was of little value." Slaughter-House
Cases, 16 Wall. 36, 70 (1873). Despite the passage of the Thirteenth, Fourteenth, and
Fifteenth Amendments, the Negro was systematically denied the rights those Amendments were
supposed to secure. The combined actions and inactions of the State and Federal
Governments maintained Negroes in a position of legal inferiority for another century
after the Civil War.
The Southern States took the first steps to re-enslave the Negroes.
Immediately following the end of the Civil War, many of the provisional legislatures
passed Black Codes, similar to the Slave Codes, which, among other things, limited the
rights of Negroes to own or rent property and permitted imprisonment for breach of
employment contracts. Over the next several decades, the South managed to disenfranchise
the Negroes in spite of the Fifteenth Amendment by various techniques, including poll
taxes, deliberately complicated balloting processes, property and literacy qualifications,
and finally the white primary.
Congress responded to the legal disabilities being imposed in the
Southern States by passing the Reconstruction Acts and the Civil Rights Acts. Congress
also responded to the needs of the Negroes at the end of the Civil War by establishing the
Bureau of Refugees, Freedmen, and Abandoned Lands, better known as the Freedmen's Bureau,
to supply food, hospitals, land, and education to the newly freed slaves. Thus, for a time
it seemed as if the Negro might be protected from the continued denial of his civil rights
and might be relieved of the disabilities that prevented him from taking his place as a
free and equal citizen.
That time, however, was short-lived. Reconstruction came to a close,
and, with the assistance of this Court, the Negro was rapidly stripped of his new civil
rights. In the words of C. Vann Woodward: "By narrow and ingenious interpretation
[the Supreme Court's] decisions over a period of years had whittled away a great part of
the authority presumably given the government for protection of civil rights."
The Court began by interpreting the Civil War Amendments in a manner
that sharply curtailed their substantive protections. See, e. g., Slaughter-House Cases,
supra; United States v. Reese, 92 U.S. 214 (1876); United States v. Cruikshank, 92 U.S.
542 (1876). Then in the notorious Civil Rights Cases, 109 U.S. 3 (1883), the Court
strangled Congress' efforts to use its power to promote racial equality. In those cases
the Court invalidated sections of the Civil Rights Act of 1875 that made it a crime to
deny equal access to "inns, public conveyances, theatres and other places of public
amusement." Id., at 10. According to the Court, the Fourteenth Amendment gave
Congress the power to proscribe only discriminatory action by the State. The Court ruled
that the Negroes who were excluded from public places suffered only an invasion of their
social rights at the hands of private individuals, and Congress had no power to remedy
that. Id., at 24-25. "When a man has emerged from slavery, and by the aid of
beneficent legislation has shaken off the inseparable concomitants of that state,"
the Court concluded, "there must be some stage in the progress of his elevation when
he takes the rank of a mere citizen, and ceases to be the special favorite of the laws . .
. ." Id., at 25. As Mr.
Justice Harlan noted in dissent, however, the Civil War Amendments
and Civil Rights Acts did not make the Negroes the "special favorite" of the
laws but instead "sought to accomplish in reference to that race . . . -- what had
already been done in every State of the Union for the white race -- to secure and protect
rights belonging to them as freemen and citizens; nothing more." Id., at 61.
The Court's ultimate blow to the Civil War Amendments and to the
equality of Negroes came in Plessy v. Ferguson, 163 U.S. 537 (1896). In upholding a
Louisiana law that required railway companies to provide "equal but separate"
accommodations for whites and Negroes, the Court held that the Fourteenth Amendment was
not intended "to abolish distinctions based upon color, or to enforce social, as
distinguished from political equality, or a commingling of the two races upon terms
unsatisfactory to either." Id., at 544. Ignoring totally the realities of the
positions of the two races, the Court remarked:
"We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it." Id., at 551.
Mr. Justice Harlan's dissenting opinion recognized the bankruptcy of
the Court's reasoning. He noted that the "real meaning" of the legislation was
"that colored citizens are so inferior and degraded that they cannot be allowed to
sit in public coaches occupied by white citizens." Id., at 560. He expressed his fear
that if like laws were enacted in other States, "the effect would be in the highest
degree mischievous." Id., at 563. Although slavery would have disappeared, the States
would retain the power "to interfere with the full enjoyment of the blessings of
freedom; to regulate civil rights, common to all citizens, upon the basis of race; and to
place in a condition of legal inferiority a large body of American citizens . . . ."
The fears of Mr. Justice Harlan were soon to be realized. In the
wake of Plessy, many States expanded their Jim Crow laws, which had up until that time
been limited primarily to passenger trains and schools. The segregation of the races was
extended to residential areas, parks, hospitals, theaters, waiting rooms, and bathrooms.
There were even statutes and ordinances which authorized separate phone booths for Negroes
and whites, which required that textbooks used by children of one race be kept separate
from those used by the other, and which required that Negro and white prostitutes be kept
in separate districts. In 1898, after Plessy, the Charlestown News and Courier printed a
parody of Jim Crow laws:
"'If there must be Jim Crow cars on the railroads, there should be Jim Crow cars on the street railways. Also on all passenger boats. . . . If there are to be Jim Crow cars, moreover, there should be Jim Crow waiting saloons at all stations, and Jim Crow eating houses. . . . There should be Jim Crow sections of the jury box, and a separate Jim Crow dock and witness stand in every court -- and a Jim Crow Bible for colored witnesses to kiss.'" Woodward 68.
The irony is that before many years had passed, with the exception
of the Jim Crow witness stand, "all the improbable applications of the principle
suggested by the editor in derision had been put into practice -- down to and including
the Jim Crow Bible." Id., at 69.
Nor were the laws restricting the rights of Negroes limited solely
to the Southern States. In many of the Northern States, the Negro was denied the right to
vote, prevented from serving on juries, and excluded from theaters, restaurants, hotels,
and inns. Under President Wilson, the Federal Government began to require segregation in
Government buildings; desks of Negro employees were curtained off; separate bathrooms and
separate tables in the cafeterias were provided; and even the galleries of the Congress
were segregated. When his segregationist policies were attacked, President Wilson
responded that segregation was "'not humiliating but a benefit'" and that he was
"'rendering [the Negroes] more safe in their possession of office and less likely to
be discriminated against.'" Kluger 91.
The enforced segregation of the races continued into the middle of
the 20th century. In both World Wars, Negroes were for the most part confined to separate
military units; it was not until 1948 that an end to segregation in the military was
ordered by President Truman. And the history of the exclusion of Negro children from white
public schools is too well known and recent to require repeating here. That Negroes were
deliberately excluded from public graduate and professional schools -- and thereby denied
the opportunity to become doctors, lawyers, engineers, and the like -- is also well
established. It is of course true that some of the Jim Crow laws (which the decisions of
this Court had helped to foster) were struck down by this Court in a series of decisions
leading up to Brown v. Board of Education, 347 U.S. 483 (1954). See, e. g., Morgan v.
Virginia, 328 U.S. 373 (1946); Sweatt v. Painter, 339 U.S. 629 (1950); McLaurin v.
Oklahoma State Regents, 339 U.S. 637 (1950). Those decisions, however, did not
automatically end segregation, nor did they move Negroes from a position of legal
inferiority to one of equality. The legacy of years of slavery and of years of
second-class citizenship in the wake of emancipation could not be so easily eliminated.
The position of the Negro
today in America is the tragic but inevitable consequence of centuries of unequal
treatment. Measured by any benchmark of comfort or achievement, meaningful equality
remains a distant dream for the Negro.
A Negro child today has a life expectancy which is shorter by more
than five years than that of a white child. 2 The Negro child's
mother is over three times more likely to die of complications in childbirth, 3 and the infant
mortality rate for Negroes is nearly twice that for whites. 4 The median income of
the Negro family is only 60% that of the median of a white family, 5 and the percentage of
Negroes who live in families with incomes below the poverty line is nearly four times
greater than that of whites. 6
When the Negro child reaches working age, he finds that America
offers him significantly less than it offers his white counterpart. For Negro adults, the
unemployment rate is twice that of whites, 7 and the unemployment
rate for Negro teenagers is nearly three times that of white teenagers. 8 A Negro male who
completes four years of college can expect a median annual income of merely $ 110 more
than a white male who has only a high school diploma. 9 Although Negroes
represent 11.5% of the population, 10 they are only 1.2%
of the lawyers and judges, 2% of the physicians, 2.3% of the dentists, 1.1% of the
engineers and 2.6% of the college and university professors. 11
The relationship between those figures and the history of unequal
treatment afforded to the Negro cannot be denied. At every point from birth to death the
impact of the past is reflected in the still disfavored position of the Negro.
In light of the sorry history of discrimination and its devastating
impact on the lives of Negroes, bringing the Negro into the mainstream of American life
should be a state interest of the highest order. To fail to do so is to ensure that
America will forever remain a divided society.
I do not believe that the Fourteenth Amendment requires us to accept
that fate. Neither its history nor our past cases lend any support to the conclusion that
a university may not remedy the cumulative effects of society's discrimination by giving
consideration to race in an effort to increase the number and percentage of Negro doctors.
This Court long ago remarked that
"in any fair and just construction of any section or phrase of these [Civil War] amendments, it is necessary to look to the purpose which we have said was the pervading spirit of them all, the evil which they were designed to remedy . . . ." Slaughter-House Cases, 16 Wall., at 72.
It is plain that the Fourteenth Amendment was not intended to
prohibit measures designed to remedy the effects of the Nation's past treatment of
Negroes. The Congress that passed the Fourteenth Amendment is the same Congress that
passed the 1866 Freedmen's Bureau Act, an Act that provided many of its benefits only to
Negroes. Act of July 16, 1866, ch. 200, 14 Stat. 173; see supra, at 391. Although the
Freedmen's Bureau legislation provided aid for refugees, thereby including white persons
within some of the relief measures, 14 Stat. 174; see also Act of Mar. 3, 1865, ch. 90, 13
Stat. 507, the bill was regarded, to the dismay of many Congressmen, as "solely and
entirely for the freedmen, and to the exclusion of all other persons . . . ." Cong.
Globe, 39th Cong., 1st Sess., 544 (1866) (remarks of Rep. Taylor). See also id., at
634-635 (remarks of Rep. Ritter); id., at App. 78, 80-81 (remarks of Rep. Chanler).
Indeed, the bill was bitterly opposed on the ground that it "undertakes to make the
negro in some respects . . . superior . . . and gives them favors that the poor white boy
in the North cannot get." Id., at 401 (remarks of Sen. McDougall). See also id., at
319 (remarks of Sen. Hendricks); id., at 362 (remarks of Sen. Saulsbury); id., at 397
(remarks of Sen. Willey); id., at 544 (remarks of Rep. Taylor). The bill's supporters
defended it -- not by rebutting the claim of special treatment -- but by pointing to the
need for such treatment:
"The very discrimination it makes between 'destitute and suffering' negroes, and destitute and suffering white paupers, proceeds upon the distinction that, in the omitted case, civil rights and immunities are already sufficiently protected by the possession of political power, the absence of which in the case provided for necessitates governmental protection." Id., at App. 75 (remarks of Rep. Phelps).
Despite the objection to the special treatment the bill would
provide for Negroes, it was passed by Congress. Id., at 421, 688. President Johnson vetoed
this bill and also a subsequent bill that contained some modifications; one of his
principal objections to both bills was that they gave special benefits to Negroes. 8
Messages and Papers of the Presidents 3596, 3599, 3620, 3623 (1897). Rejecting the
concerns of the President and the bill's opponents, Congress overrode the President's
second veto. Cong. Globe, 39th Cong., 1st Sess., 3842, 3850 (1866).
Since the Congress that considered and rejected the objections to
the 1866 Freedmen's Bureau Act concerning special relief to Negroes also proposed the
Fourteenth Amendment, it is inconceivable that the Fourteenth Amendment was intended to
prohibit all race-conscious relief measures. It "would be a distortion of the policy
manifested in that amendment, which was adopted to prevent state legislation designed to
perpetuate discrimination on the basis of race or color," Railway Mail Assn. v.
Corsi, 326 U.S. 88, 94 (1945), to hold that it barred state action to remedy the effects
of that discrimination. Such a result would pervert the intent of the Framers by
substituting abstract equality for the genuine equality the Amendment was intended to
As has been demonstrated in our joint opinion, this Court's past
cases establish the constitutionality of race-conscious remedial measures. Beginning with
the school desegregation cases, we recognized that even absent a judicial or legislative
finding of constitutional violation, a school board constitutionally could consider the
race of students in making school-assignment decisions. See Swann v. Charlotte-Mecklenburg
Board of Education, 402 U.S. 1, 16 (1971); McDaniel v. Barresi, 402 U.S. 39, 41 (1971). We
noted, moreover, that a
"flat prohibition against assignment of students for the purpose of creating a racial balance must inevitably conflict with the duty of school authorities to disestablish dual school systems. As we have held in Swann, the Constitution does not compel any particular degree of racial balance or mixing, but when past and continuing constitutional violations are found, some ratios are likely to be useful as starting points in shaping a remedy. An absolute prohibition against use of such a device -- even as a starting point -- contravenes the implicit command of Green v. County School Board, 391 U.S. 430 (1968), that all reasonable methods be available to formulate an effective remedy." Board of Education v. Swann, 402 U.S. 43, 46 (1971).
As we have observed, "[any] other approach would freeze the
status quo that is the very target of all desegregation processes." McDaniel v.
Barresi, supra, at 41.
Only last Term, in United Jewish Organizations v. Carey, 430 U.S.
144 (1977), we upheld a New York reapportionment plan that was deliberately drawn on the
basis of race to enhance the electoral power of Negroes and Puerto Ricans; the plan had
the effect of diluting the electoral strength of the Hasidic Jewish community. We were
willing in UJO to sanction the remedial use of a racial classification even though it
disadvantaged otherwise "innocent" individuals. In another case last Term,
Califano v. Webster, 430 U.S. 313 (1977), the Court upheld a provision in the Social
Security laws that discriminated against men because its purpose was "'the
permissible one of redressing our society's longstanding disparate treatment of
women.'" Id., at 317, quoting Califano v. Goldfarb, 430 U.S. 199, 209 n. 8 (1977)
(plurality opinion). We thus recognized the permissibility of remedying past societal
discrimination through the use of otherwise disfavored classifications.
Nothing in those cases suggests that a university cannot similarly
act to remedy past discrimination. 12 It is true that in
both UJO and Webster the use of the disfavored classification was predicated on
legislative or administrative action, but in neither case had those bodies made findings
that there had been constitutional violations or that the specific individuals to be
benefited had actually been the victims of discrimination. Rather, the classification in
each of those cases was based on a determination that the group was in need of the remedy
because of some type of past discrimination. There is thus ample support for the
conclusion that a university can employ race-conscious measures to remedy past societal
discrimination, without the need for a finding that those benefited were actually victims
of that discrimination.
While I applaud the judgment of the Court that a university may
consider race in its admissions process, it is more than a little ironic that, after
several hundred years of class-based discrimination against Negroes, the Court is
unwilling to hold that a class-based remedy for that discrimination is permissible. In
declining to so hold, today's judgment ignores the fact that for several hundred years
Negroes have been discriminated against, not as individuals, but rather solely because of
the color of their skins. It is unnecessary in 20th-century America to have individual
Negroes demonstrate that they have been victims of racial discrimination; the racism of
our society has been so pervasive that none, regardless of wealth or position, has managed
to escape its impact. The experience of Negroes in America has been different in kind, not
just in degree, from that of other ethnic groups. It is not merely the history of slavery
alone but also that a whole people were marked as inferior by the law. And that mark has
endured. The dream of America as the great melting pot has not been realized for the
Negro; because of his skin color he never even made it into the pot.
These differences in the experience of the Negro make it difficult
for me to accept that Negroes cannot be afforded greater protection under the Fourteenth
Amendment where it is necessary to remedy the effects of past discrimination. In the Civil
Rights Cases, supra, the Court wrote that the Negro emerging from slavery must cease
"to be the special favorite of the laws." 109 U.S., at 25; see supra, at 392. We
cannot in light of the history of the last century yield to that view. Had the Court in
that decision and others been willing to "do for human liberty and the fundamental
rights of American citizenship, what it did . . . for the protection of slavery and the
rights of the masters of fugitive slaves," 109 U.S., at 53 (Harlan, J., dissenting),
we would not need now to permit the recognition of any "special wards."
Most importantly, had the Court been willing in 1896, in Plessy v.
Ferguson, to hold that the Equal Protection Clause forbids differences in treatment based
on race, we would not be faced with this dilemma in 1978. We must remember, however, that
the principle that the "Constitution is colorblind" appeared only in the opinion
of the lone dissenter. 163 U.S., at 559. The majority of the Court rejected the principle
of color blindness, and for the next 60 years, from Plessy to Brown v. Board of Education,
ours was a Nation where, by law, an individual could be given "special"
treatment based on the color of his skin.
It is because of a legacy of unequal treatment that we now must
permit the institutions of this society to give consideration to race in making decisions
about who will hold the positions of influence, affluence, and prestige in America. For
far too long, the doors to those positions have been shut to Negroes. If we are ever to
become a fully integrated society, one in which the color of a person's skin will not
determine the opportunities available to him or her, we must be willing to take steps to
open those doors. I do not believe that anyone can truly look into America's past and
still find that a remedy for the effects of that past is impermissible.
It has been said that this case involves only the individual, Bakke,
and this University. I doubt, however, that there is a computer capable of determining the
number of persons and institutions that may be affected by the decision in this case. For
example, we are told by the Attorney General of the United States that at least 27 federal
agencies have adopted regulations requiring recipients of federal funds to take
"'affirmative action to overcome the effects of conditions which resulted in limiting
participation . . . by persons of a particular race, color, or national origin.'"
Supplemental Brief for United States as Amicus Curiae 16 (emphasis added). I cannot even
guess the number of state and local governments that have set up affirmative-action
programs, which may be affected by today's decision.
I fear that we have come full circle. After the Civil War our Government started several "affirmative action" programs. This Court in the Civil Rights Cases and Plessy v. Ferguson destroyed the movement toward complete equality. For almost a century no action was taken, and this nonaction was with the tacit approval of the courts. Then we had Brown v. Board of Education and the Civil Rights Acts of Congress, followed by numerous affirmative-action programs. Now, we have this Court again stepping in, this time to stop affirmative-action programs of the type used by the University of California.
---- Begin EndNotes ----
1 The history recounted here is perhaps too well known to require
documentation. But I must acknowledge the authorities on which I rely in retelling it. J.
Franklin, From Slavery to Freedom (4th ed. 1974) (hereinafter Franklin); R. Kluger, Simple
Justice (1975) (hereinafter Kluger); C. Woodward, The Strange Career of Jim Crow (3d ed.
1974) (hereinafter Woodward).
2 U.S. Dept. of Commerce, Bureau of the Census, Statistical Abstract of the
United States 65 (1977) (Table 94).
3 Id., at 70 (Table 102).
5 U.S. Dept. of Commerce, Bureau of the Census, Current Population Reports,
Series P-60, No. 107, p. 7 (1977) (Table 1).
6 Id., at 20 (Table 14).
7 U.S. Dept. of Labor, Bureau of Labor Statistics, Employment and Earnings,
January 1978, p. 170 (Table 44).
9 U. S. Dept. of Commerce, Bureau of the Census, Current Population Reports,
Series P-60, No. 105, p. 198 (1977) (Table 47).
10 U.S. Dept. of Commerce, Bureau of the Census, Statistical Abstract, supra,
at 25 (Table 24).
11 Id., at 407-408 (Table 662) (based on 1970 census).
12 Indeed, the action of the University finds support in the regulations
promulgated under Title VI by the Department of Health, Education, and Welfare and
approved by the President, which authorize a federally funded institution to take
affirmative steps to overcome past discrimination against groups even where the
institution was not guilty of prior discrimination. 45 CFR § 80.3 (b)(6)(ii) (1977).