Sotomayor, J., dissenting
Amendment. That Clause commands that “[n]o State shall … deny to any person within its jurisdiction the equal protection of the laws.” Amdt. 14, §1. Congress chose its words carefully, opting for expansive language that focused on equal protection and rejecting “proposals that would have made the Constitution explicitly color-blind.” A. Kull, The Color-Blind Constitution 69 (1992); see also, e.g., Cong. Globe 1287 (rejecting proposed language providing that “no State … shall … recognize any distinction between citizens … on account of race or color”). This choice makes it clear that the Fourteenth Amendment does not impose a blanket ban on race-conscious policies.
Simultaneously with the passage of the Fourteenth Amendment, Congress enacted a number of race-conscious laws to fulfill the Amendment’s promise of equality, leaving no doubt that the Equal Protection Clause permits consideration of race to achieve its goal. One such law was the Freedmen’s Bureau Act, enacted in 1865 and then expanded in 1866, which established a federal agency to provide certain benefits to refugees and newly emancipated freedmen. See Act of Mar. 3, 1865, ch. 90, 13 Stat. 507; Act of July 16, 1866, ch. 200, 14 Stat. 173. For the Bureau, education “was the foundation upon which all efforts to assist the freedmen rested.” E. Foner, Reconstruction: America’s Unfinished Revolution 1863–1877, p. 144 (1988). Consistent with that view, the Bureau provided essential “funding for black education during Reconstruction.” Id., at 97.
Black people were the targeted beneficiaries of the Bureau’s programs, especially when it came to investments in education in the wake of the Civil War. Each year surrounding the passage of the Fourteenth Amendment, the Bureau “educated approximately 100,000 students, nearly all of them black,” and regardless of “degree of past disadvantage.” E. Schnapper, Affirmative Action and the Legislative History of the Fourteenth Amendment, 71 Va. L. Rev.
