During Thurgood Marshall’s time on the Supreme Court, the nation grappled intensely with the question of how to address longstanding racial disparities in education and employment. Well into the 1970s and 1980s, debates over affirmative action—the proactive use of race- or gender-conscious programs to remedy historical discrimination—occupied courts, legislatures, and the broader public. Marshall’s jurisprudence on this issue reflected his deep conviction that equality under the Fourteenth Amendment requires more than the mere absence of overtly discriminatory laws; it also demands proactive measures to dismantle entrenched barriers. Having fought earlier in his career to topple Jim Crow, he understood that systemic racism persisted in subtler but no less consequential forms.
This section explores Marshall’s role in key affirmative action rulings, focusing especially on Regents of the University of California v. Bakke (1978)—the first major Supreme Court decision to directly confront race-based admissions in higher education. We also examine subsequent cases that tested the constitutional boundaries of affirmative action. Throughout, Marshall’s opinions and votes highlight his unwavering belief that carefully designed, race-conscious policies do not violate the Fourteenth Amendment; rather, they help fulfill its core promise of genuine equality.
From Jim Crow to Remedial Action
By the late 1960s and early 1970s, the United States had formally dismantled segregationist laws through decisions like Brown v. Board of Education (1954) and the enactment of major civil rights legislation. Yet de facto racial inequalities—manifested in patterns of underrepresentation in universities and corporate boardrooms—remained pervasive. Policymakers, civil rights activists, and educational institutions began to propose “affirmative action” as one strategy for tackling these disparities.
Affirmative action policies typically took various forms, including race-conscious admissions in schools, government contracting set-asides for minority-owned businesses, and targeted recruitment programs. Critics argued that such measures discriminated against non-minority individuals, effectively amounting to “reverse discrimination.” Proponents, including Marshall, maintained that the Fourteenth Amendment’s Equal Protection Clause did not ban race-conscious remedies when designed to counteract systemic discrimination.
Marshall’s view of the Equal Protection Clause was grounded in historical context. Ratified in the aftermath of the Civil War, the Fourteenth Amendment was intended to protect newly freed African Americans from discriminatory state laws. For Marshall, it was counterintuitive to interpret this amendment as forbidding voluntary government programs aimed at rectifying continuing racial injustices. If equal protection was to be more than a hollow promise, he believed the Constitution must allow targeted interventions to give historically oppressed groups a meaningful chance to participate in public life.
When the Court confronted affirmative action directly in the late 1970s, Marshall’s constitutional philosophy took center stage. He had long argued, as both attorney and justice, that a rigidly “colorblind” approach to law could perpetuate inequality by ignoring the real-world effects of centuries of oppression. Thus, when Regents of the University of California v. Bakke arrived on the Court’s docket, it provided Marshall an opportunity to elaborate on how race-conscious admissions align with, rather than contradict, the core aims of the Fourteenth Amendment.
The Factual and Legal Backdrop
Bakke involved the medical school at the University of California, Davis, which had reserved a certain number of seats specifically for minority applicants as part of its affirmative action admissions policy. Allan Bakke, a white applicant who was rejected twice, sued the university, alleging that the policy violated the Equal Protection Clause and the Civil Rights Act of 1964. The California Supreme Court ruled in Bakke’s favor, and the case advanced to the U.S. Supreme Court.
At stake was the constitutionality of explicitly using race as a factor in educational admissions. Supporters of UC Davis’s program argued that the special admissions category served a compelling interest: remedying past discrimination and fostering a racially diverse student body. Opponents contended that reserving set-aside spots was itself discriminatory, irrespective of the institution’s motives.
The Fractured Decision
The Supreme Court’s decision in Bakke was famously split, with multiple opinions preventing the formation of a single majority rationale. Justice Lewis Powell authored the controlling opinion, holding that quotas or set-aside seats were unconstitutional but that race could still be considered as one factor in a holistic admissions process.
Powell’s opinion rested on two key points. First, the specific 16-seat reservation system at UC Davis went too far, effectively excluding otherwise-qualified non-minority students solely because of their race. Second, universities could lawfully consider race if it served a “compelling interest” in diversity—a concept Powell borrowed from First Amendment academic freedom jurisprudence.
Marshall’s Separate Opinion
Justice Marshall authored a separate opinion in Bakke, concurring in part and dissenting in part. He agreed that diversity was a valid goal, but he disagreed with striking down UC Davis’s specific admissions plan. In Marshall’s view, a strict prohibition on any form of racial preference ignored the hard realities of inequality, effectively barring institutions from taking robust steps to ameliorate discrimination’s effects. He insisted that the Constitution should permit race-based measures where they are narrowly tailored to broaden opportunities for underrepresented minorities.
Crucially, Marshall’s opinion drew on history to argue that colorblindness was not a constitutional imperative:
“It is a moral, political, and constitutional tragedy that the Court adopts a stance of racial neutrality which ignores the reality of the situation—racial neutrality is an outright impossibility… The position of the Negro today in America is the tragic but inevitable consequence of centuries of unequal treatment.”
He recounted how African Americans had been systematically denied educational opportunities and how contemporary disparities were the legacy of that institutionalized oppression. For Marshall, the very text of the Fourteenth Amendment—born out of Reconstruction—demanded that government actively dismantle racist structures, not simply stand aside under the guise of neutrality.
Significance of the Case
Bakke left colleges and universities with a complicated directive: they could consider race, but only under certain conditions, and outright quotas were impermissible. While some observers read the decision as a partial win for the concept of affirmative action, Marshall felt that the Court had missed an opportunity to endorse a more forceful remedy for entrenched inequalities. Nevertheless, Bakke became the cornerstone for future affirmative action jurisprudence, with Marshall’s perspective continuing to inform debates over how far the Constitution permits or requires race-conscious efforts to achieve true equality.
Fullilove v. Klutznick (1980)
Just two years after Bakke, the Court tackled an affirmative action program in the area of federal contracting. Fullilove v. Klutznick concerned a congressional act requiring that at least 10% of federal funds for public works be allocated to minority-owned businesses. The Court upheld the program, reasoning that Congress has broad power under the enforcement provisions of the Fourteenth Amendment to remediate the effects of past discrimination.
Marshall joined the majority, reiterating that the Constitution does not inhibit the federal government from enacting remedial measures for historically disadvantaged communities. For him, Fullilove validated the notion that while states or localities might face stricter scrutiny when using racial classifications, the federal government could exercise its authority to redress pervasive discrimination through carefully designed legislation.
Wygant v. Jackson Board of Education (1986)
In Wygant, the Court struck down a school board’s policy that protected minority teachers from layoffs based on the board’s interest in maintaining racial diversity among the faculty. A 5–4 majority concluded that the policy violated the Equal Protection Clause because it imposed disproportionate burdens on non-minority teachers without sufficient remedial justification.
Justice Marshall dissented vigorously. He argued that the policy served a compelling goal: ensuring a diverse set of role models for students. He also pointed out that traditional seniority-based layoffs would likely perpetuate the underrepresentation of minority teachers, given the enduring vestiges of discrimination in hiring. For Marshall, the Court’s decision demonstrated a persistent reluctance to confront the structural realities that perpetuated racial disparities, instead adhering to a narrow reading of equal protection that often advantaged more privileged groups.
City of Richmond v. J.A. Croson Co. (1989)
Another critical case arrived in City of Richmond v. J.A. Croson Co., which involved a municipal set-aside program reserving 30% of city construction contracts for minority-owned businesses. The Court invalidated the program, applying what it called “strict scrutiny” to any state or local use of racial classifications. According to the majority, Richmond had not provided adequate evidence of specific, identified discrimination that would justify the sweeping quota.
Once again, Marshall dissented, lamenting that the majority’s approach demanded an unrealistic standard of proof, effectively stymying state and local governments from remedying discrimination unless they could document each instance of its existence. He reiterated that racial disparities do not arise in a vacuum; they often reflect complex histories of bias. In his view, requiring a perfect record of discrimination before allowing remedial measures misunderstood the nature of systemic racism and perpetuated an illusion that colorblindness alone could achieve equality.
A Pragmatic Reading of the Fourteenth Amendment
Marshall interpreted the Equal Protection Clause in light of its Reconstruction-era origins. Far from mandating colorblindness, he believed it was meant to undo the social and economic legacies of slavery and Jim Crow, which demanded active government intervention.
Recognition of Systemic Inequities
Marshall consistently warned that seemingly neutral policies often masked racially disparate impacts. He pointed out that individuals from minority backgrounds frequently began at a disadvantage because of inherited social and economic disparities. Affirmative action was one way to level the playing field, giving disadvantaged groups the foothold they had been historically denied.
Narrow Tailoring vs. Broad Goals
While fully supportive of race-conscious programs, Marshall also recognized that they must be sensibly tailored to withstand constitutional scrutiny. He endorsed the idea that government entities needed clear objectives—be it diversity or remedying past discrimination—and a demonstrable rationale. However, he strongly opposed the Court’s tendency to demand extremely specific proof of recent, intentional discrimination, arguing that such requirements ignore historical realities and make effective remedial action impossible.
Fairness to All vs. Reverse Discrimination
Critics of affirmative action often invoked the specter of “reverse discrimination,” suggesting that measures to aid minorities came at an unjust cost to white individuals. Marshall rejected this framing, insisting that the real inequity lay in centuries of discrimination that left minorities with fewer opportunities. By focusing on the disadvantages historically inflicted on minority communities, he reframed affirmative action as a partial corrective to an entrenched imbalance, not an unfair handout.
The Moral Dimension
For Marshall, the push for race-conscious remedies was never merely about numbers or statistics; it was also about dignity and moral justice. Laws and policies that ignore structural disadvantages perpetuate a status quo steeped in centuries of injustice. Affirmative action, in his view, advanced the Constitution’s highest aspiration: that all citizens have an equitable chance to flourish.
Although Marshall retired from the Court in 1991, his influence continues to shape debates over affirmative action, both within the Supreme Court and in the broader national conversation. The framework outlined in Bakke persisted into later cases such as Grutter v. Bollinger (2003) and Fisher v. University of Texas (2013, 2016), where the Court reiterated that diversity in higher education can constitute a compelling interest but that admissions programs must be carefully tailored to avoid undue burdens on non-minority applicants.
Marshall’s dissents in Croson, Wygant, and other cases also anticipate modern critiques about requiring exacting proof of identified discrimination before allowing race-conscious remedies. Advocates for robust affirmative action policies today often cite his arguments on systemic racism, pointing out that contemporary inequalities are the cumulative result of historical prejudices, and thus cannot be cured by colorblindness alone.
Moreover, the philosophical underpinnings of Marshall’s stance—his insistence that law must account for structural inequities, not just overt discrimination—resonate in contemporary discussions of equity in housing, criminal justice reform, and voting rights. While the Supreme Court’s composition and legal standards for affirmative action have evolved, the moral and historical arguments Marshall advanced remain central to any serious discourse on how to achieve true equal protection for all Americans.
Thurgood Marshall’s jurisprudence on affirmative action provides a revealing window into his broader constitutional philosophy. Through cases like Bakke, Fullilove, Wygant, and Croson, he repeatedly underscored that equal protection is not a static, one-size-fits-all doctrine. Rather, it is an evolving mandate that must respond to real-world inequalities and discriminatory legacies. Marshall believed it was insufficient to declare formal equality while ignoring the deep-rooted disadvantages that continue to affect minority communities.
For him, affirmative action was not about displacing one group in favor of another; it was about ensuring that the promise of the Fourteenth Amendment—shaped by the ashes of slavery and intended to guarantee full citizenship for freed African Americans—had genuine force in modern society. If the law did not allow for race-conscious remedies, the entrenched effects of racism would remain unchallenged and intact. Consequently, Marshall insisted that restricting government entities to a purely “colorblind” approach often perpetuated the very inequities the Fourteenth Amendment was designed to eradicate.
While Marshall did not always persuade a majority of his colleagues, his separate opinions and dissents have served as intellectual touchstones. They remind us that the Constitution’s commitment to equality requires more than negative liberty (freedom from state-imposed discrimination); it may also demand affirmative steps to lift historically burdened populations. Long after Marshall’s departure from the bench, his unwavering championship of affirmative action underscores a continuing tension in American constitutional law: how to balance a desire for colorblind principles with the urgent need to remedy the present-day consequences of past injustices.
In the broader arc of Thurgood Marshall’s legacy, his stance on affirmative action and equal protection extends and reframes the civil rights triumphs of his earlier career. Where Brown and the Civil Rights Acts dismantled explicit racial barriers, affirmative action sought to address the hidden residue of that discrimination in education and the workforce. Through meticulously reasoned opinions, Marshall argued that the Constitution—not just as text but as a living instrument—permits and indeed encourages such remedies. Ultimately, his perspective endures as a powerful testament to the ideal that equal protection, if it is to be truly equal, must sometimes be actively pursued rather than passively observed.