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Thomas Views on Equality Likely to Reignite Debates : Nominee: He has espoused an old-fashioned legal view of individual rights. Critics say he is blind to American history.

July 04, 1991|DAVID G. SAVAGE | TIMES STAFF WRITER

WASHINGTON — "Classifications and distinctions based on race or color have no moral or legal validity in our society," Thurgood Marshall wrote in a 1948 brief to the Supreme Court. Nearly 40 years later, Clarence Thomas declared: "I firmly insist that the Constitution be interpreted in a colorblind fashion."

Over the last decade, Supreme Court nominee Thomas has espoused an old-fashioned legal view of individual rights and equality--one that is today considered conservative.

In speeches, he quotes the Declaration of Independence, Abraham Lincoln and Dr. Martin Luther King Jr., arguing that the American legal tradition demands that all individuals--black or white--receive equal treatment under law.

His approach, he said, "reasserts the primacy of the individual and establishes our inherent equality as a God-given right."

"This inherent equality is the basis for aggressive enforcement of civil rights laws and equal employment opportunity laws designed to protect individual rights," he said.

In the late 1940s and early 1950s, Marshall, then an attorney for the NAACP, advocated the same basic position as he mounted legal challenges to segregation in public schools and universities. Later, as the nation's first black Supreme Court justice, however, Marshall came to hold a quite different view than the man who is likely to replace him.

Thomas' ideas are likely to reignite a debate that has divided the nation and the Supreme Court for nearly two decades. Were federal civil rights laws intended to stop racial discrimination against individuals? Or were they designed to bring about true equality for all blacks?

These days, most civil rights lawyers take the latter view, as does Marshall.

They say that the "colorblind" view espoused by Thomas and the Ronald Reagan Administration is, in fact, blind to American history. Since blacks as a group have been subjected to a long history of oppression, the laws must permit government, colleges and employers to take "affirmative action" to bring about true equality, they contend.

Throughout American history, "whites were a privileged caste, and people of color were an oppressed caste," said Harvard Law Prof. Randall Kennedy, a former clerk to Justice Marshall. The constitutional amendments adopted after the Civil War and the 1960s-era civil rights laws were intended to break down that caste system, he said.

"It is simply wrong to say it is enough to repeal racist laws," Kennedy said.

But 43-year-old Thomas also taps into a recurring theme in American history. From the time of the Declaration of Independence, American law has espoused in principle--if not in practice--that all persons are to be treated equally under the law, he says. These laws speak of fair treatment for "persons" and "individuals," not groups.

For example, in 1868, the Constitution was amended to say that government may not "deny to any person . . . the equal protection of the laws."

After ignoring this command for nearly a century, the Supreme Court in 1954 ruled that official school segregation denied black children the equal protection of the laws. Over the next decade, the justices insisted on an end to racial discrimination by government.

In 1964, Congress applied the same principle to the private sector. The Civil Rights Act of 1964 made it unlawful for employers to "discriminate against any individual . . . because of such individual's race, color, religion, sex or national origin."

Initially, this law was seen as forbidding all discrimination. But President Lyndon B. Johnson said that the government and private employers must take "affirmative" steps to aid black Americans, even if it meant discriminating against white employees.

By the 1970s, "affirmative action" represented the official policy of the federal government. In addition, most public agencies, colleges and employers had decided that they should give preferences to blacks and other minorities as a way to bring about true equality.

The Supreme Court seemed at first reluctant to rule on whether this "reverse discrimination" was illegal.

The Bakke case of 1978 revealed the deep division within the court. The liberals, led by Justices William J. Brennan and Marshall, said that both the Constitution and federal law permitted measures that aided the black minority.

The conservatives, led by Justice William H. Rehnquist, said that these laws demand equal treatment for all, white and black. Sitting in the middle of the divided court, Justice Lewis F. Powell Jr. announced a compromise position: Quotas are illegal, but minorities may be given some preferences in the interest of "diversity."

A year later, over a bitter dissent by Rehnquist, the court also ruled that the 1964 law permits employers to give hiring preferences to blacks.

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