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Marshall Made Lasting Mark on the Court Both on the Bench and Appearing Before It

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By Mark Walsh

Washington--Thurgood Marshall made his mark on the U.S. Supreme Court both as its first black justice and as one of the great dissenters to its increasingly conservative rulings. But he had already etched his place in U.S. history during the years he appeared before the High Court as one of the foremost legal architects of the civil-rights movement.

Justice Marshall, who late last month announced his plans for retirement after 24 years of service, strove during his tenure on the Court to preserve the legacy of the victories he had won on such issues as school desegregation while in front of the bench.

As legal director of the naacp Legal Defense and Educational Fund for 23 years, Mr. Marshall led the painstaking legal assault on the doctrine that allowed the separation of blacks and whites in schools, colleges, and elsewhere in American society.

He began by attacking separate and unequal facilities in higher education, winning important Supreme Court victories that laid the groundwork to attack segregation in elementary and secondary schools.

Mr. Marshall then headed the legal team that in five consolidated cases--from Delaware, the District of Columbia, Kansas, South Carolina, and Virginia--challenged the constitutionality of racially "separate but equal" facilities upheld by the High Court in 1896.

In its unanimous 1954 ruling in Brown v. Board of Education, the Supreme Court concluded that8"separate educational facilities are inherently unequal."

Mr. Marshall continued for several years to work as a lawyer to turn the Brown decision into a reality throughout the country. After stints on the U.S. Court of Appeals and as solicitor general, he was named by President Lyndon B. Johnson to the Supreme Court in 1967.

Frequent Dissenter

After lining up on the winning side of many decisions near the end of the liberal era of Chief Justice Earl Warren, Justice Marshall became a dissenter from important decisions on desegregation, affirmative action, and individual rights.

He often joined opinions written by his friend and fellow liberal, Justice William J. Brennan Jr., but he wrote several dissents of his own in significant education cases.

In 1974, in Milliken v. Bradley, the court voted 5 to 4 against allowing a desegregation plan that crossed school-district lines from Detroit into its suburbs.

"Desegregation is not and was not ever expected to be an easy task,'' Justice Marshall wrote in dissent. "In the short run, it may be the easier course to allow our great metropolitan areas to be divided up into two cities--one white, the other black--but it is a course, I predict, our people will ultimately regret."

In 1983, he dissented from a decision that upheld a Minnesota law establishing tax credits for parents who sent their children to private schools.

"For the first time," he said in criticizing the majority in that case, Mueller v. Allen, "the Court has upheld financial support for religious schools without any reason at all to assume that the support will be restricted to the secular functions of those schools and will not be used to support religious instruction."

This year, in his dissent to the ruling in an Oklahoma City desegregation case, Justice Marshall reiterated his objection to one-race schools.

"The persistence of racially identifiable schools perpetuates the message of racial inferiority associated with segregation," he said in Board of Education of Oklahoma City v. Dowell. "Therefore, such schools must be eliminated whenever feasible."

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