Sources & Extracts

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Ann's argument is similar to that of Laughlin McDonald and John Powell. The following selections give some idea of how the authors use the distinction between benign and invidious discrimination.

In order to remedy the effects of past discrimination, race must be taken into account. . . .

In many areas where there was invidious racial discrimination, minorities remain significantly underrepresented and face disproportionately difficult challenges in achieving success.

The authors go on to emphasize their view of the difference between affirmative action and traditional discrimination.

There is a vast difference between governmental measures that classify persons according to their race to exclude them from opportunities accorded to all citizens, and governmental measures that take race into account to correct the effects of such past discrimination. . . .

The Court held [in Metro Broadcasting] that even though the measures were not 'remedial in the sense of being designed to compensate victims of past governmental or societal discrimination,' such 'benign race conscious measures mandated by congress . . . are constitutionally permissible' if 'they serve important governmental objectives within the power of Congress and are substantially related to the achievement of those objectives.'

Finally, the authors offer their view of the relationship between judicial strict scrutiny and affirmative action.

Strictly scrutinizing race conscious measures does not mean that all such measures violate equal protection guarantees. The purpose of strict scrutiny is to separate 'benign' or 'remedial' racial classifications from those 'motivated by illegitimate notions of racial inferiority or simple racial politics.'

Reference: From McDonald and Powell, The Rights of Racial Minorities, chapter X, p. 241-245. Brackets added.