The notion that affirmative action is a new phenomenon is one of the myths surrounding a policy whose definition is murky, circular, contradictory, and fraught with myths and misinformation.

The term affirmative action was first used in 1935, and though education is largely the focus of the nation’s current affirmative action debate, the origins of the term are rooted in employment law. The term first appeared in the National Labor Relations Act of 1935, which proclaimed that employers using discriminatory labor practices would be required to take appropriate affirmative actions.

So much of the historical journey that leads to the June 2023 Supreme Court’s Affirmative Action decision begins in Baltimore with our own Thurgood Marshall. In a real sense, Thurgood Marshall helped lay the foundation for the current concept of affirmative action. In that vein, it would be interesting to know what the future justice would have said about the Supreme Court’s decision that considering race in college admissions programs is unconstitutional.

Thurgood Marshall, Associate Justice of the Supreme Court of the United States 

Photo Credit: Library of Congress (Public Domain)

It was, after all, Thurgood Marshall who was rejected from the University of Maryland Law School because he was not white. In truth, there never seemed to be an issue with race-based admissions when it came to rejecting the likes of a Thurgood Marshall, or James Meredith , or other blacks to schools created for whites.

Fortunately for Thurgood Marshall, this discriminatory act by the University of Maryland School of Law paved the way for him to come under the mentorship of Charles Hamilton Houston, Dean of the Howard University Law School. Houston encouraged him and the other law students to view law as a vehicle for social change. And so they did! Their work under Houston’s guidance would lead to the landmark 1954 decision in the Brown v. Board of Education case, which rejected the separate but equal doctrine and held segregation in public education unconstitutional.

As an act of poetic justice, one of Thurgood Marshall’s first legal victories would be Murray v. Pearson (1935), a suit accusing the University of Maryland Law School with violating the 14th Amendment’s equal protection clause by denying Donald Murray, an African American applicant, admission to the law school on the basis of race.

Other successful suits would follow, further connecting Marshall to the evolution of affirmative action and its objective of achieving full and fair participation of women and minorities. For example, in the case of Sipuel v. Board of Regents of the University of Oklahoma, Thurgood Marshall represented Ada Sipuel, who was denied admission to the law school because of her race.

Sipuel ultimately took her case to the Supreme Court, which ruled that Oklahoma must provide instruction for African Americans that was equal to that of whites. In response, the state created a separate school, Langston University of Law built exclusively for her.

It was comprised of a few rooms located in a government building in the Oklahoma capitol. Refusing to attend, Ada Sipuel took her case to the Supreme Courts where Thurgood Marshall represented her. Marshall’s strategy was to prove that the Langston School was inferior in that the accommodations for her were not equal to those of whites and that she must be admitted to the University of Oklahoma, School of Law.

On June 18th 1949 Sipuel became the first African American woman admitted to the University of Oklahoma, School of Law. Even then she was forced to sit in the back of the room behind a row of empty seats and a wooden railing with a sign designated “colored”.

Many people find it disheartening that Clarence Thomas would be selected to occupy the seat held by Thurgood Marshall. Justice Marshall fit comfortably among a liberal majority. Justice Clarence Thomas is quite at home on today’s Supreme Court dominated by a conservative, right wing majority. In fact, the two men are polar opposites and a stark study in contrasts.

Thurgood Marshall’s career, prior to becoming a Supreme Court Justice, was mainly as a lawyer for the  National Association for the Advancement of Colored People or NAACP. Arguing and winning 29 of 32 civil rights cases before the Supreme Court, he amassed a record as a strong protector of individual rights, voting rights, and civil rights.

Ironically, before becoming a Supreme Court Judge, Clarence Thomas worked as chair of the U.S. Equal Employment Opportunity Commission (EEOC) Liberal democrats and civil right groups repeatedly accused him of not aggressively enforcing anti-discrimination laws and of failing to demonstrate a commitment to civil rights and civil liberties. Thomas was vocal in his opinion that racial quotas and affirmative action programs patronized blacks. Many opponents as well as supporters of Thomas say that these views shaped his governing of EEOC.  

According to the center for American Progress, “Thomas’ positions in the court’s recent civil rights cases demonstrate that he may be more opposed than any other justice to the government’s consideration of race in programs that help African Americans”.

Like John Roberts and the Court’s other conservative justices, Clarence Thomas’ rulings reflect the myth that the pre-1965 conditions of racial discrimination that led to the Voting Rights Act or to affirmative action, no longer exist or are no longer relevant today.  Thus, Thomas voted with the rest of the right wingers in Shelby County v. Holder to strike down the “pre-clearance” requirement of sections 4 and 5 of the Voting Rights Act.  The court ruled that the pre-clearance requirement was outdated and no longer necessary since there is no longer blatant discrimination against “certain” voters. Clarence Thomas joined John Roberts in writing the opinion briefs for this major destruction to the 1965 Voting Rights Act. The Shelby County decision opened the floodgates to laws restricting voting throughout the nation.  

These short sighted conservative views run one hundred percent counter to those of Thurgood Marshall who wrote an opinion in 1986 rejecting similar arguments that the Voting Rights Act’s pre-clearance system was outdated.

Another point of difference between the two African American Supreme Court Justices is on the subject of affirmative action. It was Thurgood Marshall who stated that affirmative measures, such as busing students to ensure diversity in schools are necessary. Clarence Thomas, on the other end of the affirmative action opinion spectrum, asserts that affirmative action violates the constitutional rights of white students.

Ultimately, a major outcome of the quest by right wing conservative jurists to strike down affirmative action via the Supreme Court has perhaps been, inadvertently, an effort to erase an essential part of the legacy of Supreme Court Justice Thurgood Marshall.  I predict that history will speak more kindly of Thurgood Marshall than of John Roberts and his Right Wing Gang of Five.  Stay tuned!

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