Thomas, J., concurring
Moreover, the very same Congress passed both these laws and the unambiguously worded Civil Rights Act of 1866 that clearly prohibited discrimination on the basis of race.[1] And, as noted above, the proponents of these laws explicitly sought equal rights without regard to race while disavowing any antisubordination view.
Justice Sotomayor argues otherwise, pointing to “a number of race-conscious” federal laws passed around the time of the Fourteenth Amendment’s enactment. Post, at 6 (dissenting opinion). She identifies the Freedmen’s Bureau Act of 1865, already discussed above, as one such law, but she admits that the programs did not benefit blacks exclusively. She also does not dispute that legislation targeting the needs of newly freed blacks in 1865 could be understood as directly remedial. Even today, nothing prevents the States from according an admissions preference to identified victims of discrimination. See Croson, 488 U. S., at 526 (opinion of Scalia, J.) (“While most of the beneficiaries might be black, neither the beneficiaries nor those disadvantaged by the preference would be identified on the basis of their race” (emphasis in original)); see also ante, at 39.
Justice Sotomayor points also to the Civil Rights Act of 1866, which as discussed above, mandated that all citizens have the same rights as those “enjoyed by white citizens.” 14 Stat. 27. But these references to the station of white citizens do not refute the view that the Fourteenth Amendment is colorblind. Rather, they specify that, in meeting the Amendment’s goal of equal citizenship, States must level up. The Act did not single out a group of citizens for
- ↑ UNC asserts that the Freedmen’s Bureau gave money to Berea College at a time when the school sought to achieve a 50–50 ratio of black to white students. Brief for University Respondents in No. 21–707, p. 32. But, evidence suggests that, at the relevant time, Berea conducted its admissions without distinction by race. S. Wilson, Berea College: An Illustrated History 2 (2006) (quoting Berea’s first president’s statement that the school “would welcome ‘all races of men, without distinction’ ”).
