Thurgood Marshall

“ IV 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. ”

“ 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. ”

“ The dream of America as the great melting pot has [p401] 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." ”

“ 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. ”

“ II 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”