Page:Students for Fair Admissions v. President and Fellows of Harvard College.pdf/67

Rh did not understand how the payment system operated.” Rappaport 110; see also S. Siegel, The Federal Government’s Power To Enact Color-Conscious Laws: An Originalist Inquiry, 92 Nw. U. L. Rev. 477, 561 (1998). Thus, while this legislation appears to have provided a discrete race-based benefit, its aim—to prohibit race-based exploitation—may not have been possible at the time without using a racial screen. In other words, the statute’s racial classifications may well have survived strict scrutiny. See Rappaport 111–112. Another law, passed in 1867, provided funds for “freedmen or destitute colored people” in the District of Columbia. Res. of Mar. 16, 1867, No. 4, 15 Stat. 20. However, when a prior version of this law targeting only blacks was criticized for being racially discriminatory, “it was defended on the grounds that there were various places in the city where former slaves … lived in densely populated shantytowns.” Rappaport 104–105 (citing Cong. Globe, 39th Cong., 1st Sess., at 1507). Congress thus may have enacted the measure not because of race, but rather to address a special problem in shantytowns in the District where blacks lived.

These laws—even if targeting race as such—likely were also constitutionally permissible examples of Government action “undo[ing] the effects of past discrimination in [a way] that do[es] not involve classification by race,” even though they had “a racially disproportionate impact.” Richmond v. J. A. Croson Co., 488 U. S. 469, 526 (1989) (Scalia, J., concurring in judgment) (internal quotation marks omitted). The government can plainly remedy a race-based injury that it has inflicted—though such remedies must be meant to further a colorblind government, not perpetuate racial consciousness. See id., at 505 (majority opinion). In that way, “[r]ace-based government measures during the 1860’s and 1870’s to remedy state-enforced slavery were … not inconsistent with the colorblind Constitution.” Parents Involved, 551 U. S., at 772, n. 19 (, concurring).