Document Type


Publication Date



Fifty years after Brown v. Board of Education, race is still a serious issue in this country. Fortunately, we no longer debate whether it is legal for the government to operate segregated schools or to treat blacks as second-class citizens. We finally answered that question correctly—it is unconstitutional for the law to segregate and to treat blacks worse than whites.

Today, we face the more difficult question of ascertaining the constitutionality of “affirmative action” or “benign discrimination” programs. The Supreme Court first addressed this issue in 1978 in the landmark case Regents of the University of California v. Bakke. In a confusing set of six opinions, four Justices concluded that the program was constitutional, while four others held that it violated federal law. Justice Powell alone stated that the consideration of race was not necessarily unconstitutional, but that the use of quotas was. As a result, with Justice Powell’s vote controlling, there were five Justices who said race could be considered in school admissions, but also five Justices who struck down the particular program at issue.

In 2003, the Supreme Court had the opportunity to tell us more in the cases challenging the University of Michigan’s affirmative action programs. But before discussing the Michigan cases, the author sets the stage by giving the views of the man who brought us Brown v. Board of Education, Thurgood Marshall.

Justice Marshall started with the premise that the ultimate goal for our country is to be a “colorblind” society in which race is irrelevant. However, Marshall pointed out that this commonly accepted goal has led to two very different conclusions. Some people conclude that, because what is ultimately desired is a colorblind society, race-conscious remedies should not and cannot be used to eliminate the effects of past discrimination. Others, however, believe that the vestiges of racial bias in America are, in Marshall’s words, “so pernicious and difficult to remove that we must take advantage of all the remedial measures at our disposal.” Which of these conclusions one adopts, said Marshall, depends on how close one believes this country is to the desired colorblind society.

Publication Citation

52 Am. U. L. Rev. 1507-1520 (2003)