The Limits of Equality and the Virtues of Discrimination


This article focuses on the application of antidiscrimination regimes to groups which have been discriminated-against de jure and de facto. This Article approaches diverges from the dominant view that discrimination is a purely destructive force. The central argument of the Article is that de jure, overt and blatant discrimination necessarily contributes to the creation of a coherent group identity recognized by law, which enables groups that are discriminated against to obtain remedial relief. In contrast, the law fails to recognize a coherent group identity for de facto discriminated-against groups and thus these groups have to overcome a structural challenge to obtain remedial relief to counter the discrimination. Thus, strangely, groups that are discriminated against de jure might be better off than groups that are discriminated against only de facto once one considers both the discriminatory and the remedial phases. After establishing the de jure/de facto distinction, the article explores the effects of this distinction on the equal protection claims of discriminated-against groups by contrasting the experiences of African-Americans and Mexican-Americans.


Civil Rights and Discrimination | Constitutional Law | Law and Society

Date of this Version

February 2006