Supreme Court of the United States
Washington, D. C. 20543
chambers of
JUSTICE THURGOOD MARSHALL
Re: No. 76-811, Regents of the University of California v. Bakke
MEMORANDUM TO THE CONFERENCE
I repeat, for next to the last time: the decision in this case depends on whether you consider the action of the Regents as admitting certain students or as excluding certain other students. If you view the program as admitting qualified students who, because of this Nation's sorry history of racial discrimination, have academic records that prevent them from effectively competing for medical school, then this is affirmative action to remove the vestiges of slavery and state imposed segregation by "root and branch." If you view the program as excluding students, it is a program of "quotas" which violates the principle that the "Constitution is color-blind."
If only the principle of color-blindness had been accepted by the majority in Plessy in 1896, we would not be faced with this problem in 1978. We must remember, however, that this principle appeared only in the dissent. In the 60 years from Plessy to Brown, ours was a Nation where, by law, individuals could be given "special" treatment based on race. For us now to say that the
