policies must be reasonably restricted; English proficiency and educational qualifications are needed for many jobs; lending institutions cannot lend to people who cannot reasonably demonstrate an ability to repay loans. Unless carefully examined and then modified or eliminated, however, these apparently neutral rules, policies, and practices will continue to perpetuate age-old discriminatory patterns into the structure of today's society.

Whatever the motivation behind such organizational acts, a process is occurring, the common denominator of which is the denial of equality of opportunity to large numbers of minorities and women. When unequal outcomes are repeated over time and in numerous societal and geographical areas, it is a clear signal that a discriminatory process is at work.

Such discrimination is not a static, one-time phenomenon that has a clearly limited effect. Discrimination can feed on discrimination in self-perpetuating cycles:29

The employer who recruits job applicants by word of mouth within a predominantly one-race, one-sex work force reduces the chances of receiving applications from people of another race or sex. Traditionally, those holding the most desirable jobs in the work force have been white males. If word-of-mouth recruiting is the method used to fill these jobs, minorities and women will have no opportunity to apply, since they will not hear about vacancies. Since they do not apply, they are not hired. Since they are not hired, they cannot recruit other minority or female applicants. Because there are no minority or female employees to recruit others, the employer is left to recruit from among its predominantly white and male work force.30

The teacher who expects poor academic performance from minority and female students may not become greatly concerned when their grades are low. The acceptance of their low grades removes incentives to improve. Without incen

28 See discussion of the courts' use of numerical evidence of unequal results in Part B of this statement, "Civil Rights Law and the Problem."

"See U.S., Commission on Civil Rights, For All the People...By All the People (1969), pp. 122-23.

30 See note 12.

31 See note 14. Non-English-speaking students may suffer a similar fate. See.e.g., Dexter Waugh and Bruce Koon, "Breakthrough for Bilingual Education: Lau v. Nichols and the San Francisco School System," Civil Rights Digest, vol. 6, no. 4 (1974), pp. 18-26.

Structural Discrimination

Such self-sustaining discriminatory processes occur not only in employment, education, housing, and government, but also between these structural areas. There is a classic cycle of structural discrimination that reproduces itself. Discrimination in education denies the credentials to get good jobs. Discrimination in employment denies the economic resources to buy good housing. Discrimination in housing confines its victims to school districts providing inferior education, closing the cycle in a classic form.34

The cycles of discrimination that white women encounter differ from those minorities encounter, but all women face structural discrimination when they compete with men. When white women live with white men, the women share many of the material and educational advantages that the men enjoy. In addition, white males often pass such advantages on to their daughters or wives. But sharing resources is not the same as sharing power. Access to some of the same material resources that white males enjoy does not give white women the

"See notes 16 and 17.

"See Arthur S. Flemming, Chairman, U.S. Commission on Civil Rights, statement before the Subcommittee on Constitutional Rights, Committee on the Judiciary, U.S. Senate, on S.407, S.903, and S.1279, Apr. 9, 1975, pp. 15-18, based on U.S., Commission on Civil Rights, The Voting Rights Act: Ten Years After (January 1975).

"See.e.g., U.S., Commission on Civil Rights, Equal Opportunity in Suburbia (1974).

ability to obtain these resources independently. In this sense, white women are caught in a discriminatory cycle that neutralizes the advantages derived by relationships with white men. The educational experiences of white women perhaps best illustrate this cycle. Educational programs, most conspicuously vocational and athletic programs," have significantly disadvantaged white females, although not in the same ways or to the same degree as segregated minorities. On the whole, girls tend to perform at least as well as boys in elementary and high school and even in higher educational programs. Nonetheless, females as a group have yet to do as well in the employment market as do similarly or less educated males.37

For women who are minorities, discriminatory cycles may have even more devastating effects. Minority women are subject to the same types of discrimination as white women, but cannot draw on the resources available in the white community. For minority women, the cycle of discrimination is as tightly closed and rigidly self-perpetuating as it is for minority men.

Regarding the similarities and differences between the discrimination experienced by women and minorities, one author has aptly stated:

[W]hen two groups exist in a situation of inequality, it may be self-defeating to become embroiled in a quarrel over which is more unequal or the victim of greater oppression. The more salient question is how a condition of inequality for both is maintained and perpetuated-through what means is it reinforced?"

It is far more productive to understand the various forms and dynamics of the discrimination that minorities and women experience than to engage in endless, value-laden debates over who is suffering more. The nature and extent of the processes that cause the suffering should be the focus of analysis, not just the pain and unfairness caused by those processes.

See generally U.S., Commission on Civil Rights, More Hurdles to Clear: Women and Girls in Competitive Athletics (1980).

Ruth Bader Ginsburg, "Realizing The Equality Principle," in Social Justice and Preferential Treatment, ed. William Blackstone and Robert Heslep (Athens: University of Georgia Press, 1977), pp. 136-37.

"Elizabeth McTaggart Almquist, Minorities, Gender, and Work (Lexington, Mass.: Lexington Books, 1979), p. 181.

3 Chafe, Women and Equality, p. 78.

"U.S., Commission on Civil Rights, Window Dressing on the Set (1977).

"See note 18; Gregory v. Litton Systems, Inc., 472 F.2d 631 (9th Cir. 1972); Green v. Mo.-Pac. R.R., 523 F.2d 1290 (8th Cir. 1975).

The following are additional examples of the interaction among social structures that affects minorities and women:

• The absence of minorities and women from executive, writing, directing, news reporting, and acting positions in television contributes to unfavorable stereotyping on the screen, which in turn reinforces existing stereotypes among the public and creates psychological roadblocks to progress in employment, education, and housing.39

• Living in inner-city high crime areas in disproportionate numbers, minorities, particularly minority youth, are more likely to be arrested and are more likely to go to jail than whites accused of similar offenses, and their arrest and conviction records are then often used as bars to employment.40

Because of past discrimination against minorities and women, female- and minority-headed businesses are often small and relatively new. Further disadvantaged by contemporary credit and lending practices, they are more likely than white-male-owned businesses to remain small and be less able to employ full-time specialists in applying for government contracts. Because they cannot monitor the availability of government contracts, they do not receive such contracts. Because they cannot demonstrate success with government contracts, contracting officers tend to favor other firms that have more experience with government contracts."1

Discriminatory actions by individuals and organizations are not only pervasive, occurring in every sector of society, but also cumulative, with effects limited neither to the time nor the particular structural area in which they occur. This process of discrimination, therefore, extends across generations, across organizations, and across social structures in self-reinforcing cycles, passing the disadvantages incurred by one generation in one area to future generations in many related areas."

"See U.S., Commission on Civil Rights, Minorities and Women as Government Contractors (1975), pp. 20, 27, 125.

See,e.g., A. Downs, Racism in America and How to Combat It (prepared for the U.S. Commission on Civil Rights, 1970); "The Web of Urban Racism," in Institutional Racism in America, ed. Knowles and Prewitt, pp. 134-76. Other factors in addition to race, sex, and national origin may contribute to these interlocking institutional patterns. In Equal Opportunity in Suburbia (1974), this Commission documented what it termed "the cycle of urban poverty" that confines minorities in central cities with declining

These interrelated components of the discriminatory process share one basic result: the persistent gaps seen in the status of women and minorities relative to that of white males. These unequal results themselves have real consequences. The employer who wishes to hire more minorities and women may be bewildered by charges of racism and sexism when confronted by a genuine shortage of qualified minority and female applicants. The guidance counselor who sees one promising minority student after another drop out of school or give up in despair may resent allegations of racism when there is little he or she alone can do for the student. The banker who denies a loan to a female single parent may wish to act differently, but believes that prudent fiscal judgment requires taking into account her lack of financial history and inability to prove that she is a good credit risk. These and other decisionmakers see the results of a discriminatory process repeated over and over again, and those results provide a basis for rationalizing their own actions, which then feed into that same process.

When seen outside the context of the interlocking and intertwined effects of discrimination, complaints that many women and minorities are absent from the ranks of qualified job applicants, academically inferior and unmotivated, poor credit risks, and so forth may appear to be justified. Decisionmakers like those described above are reacting to real social problems stemming from the process of discrimination. But many too easily fall prey to stereotyping and consequently disregard those minorities and women who have the necessary skills or qualifications. And they erroneously "blame the victims" of discrimination," instead of examining the past and present context in which their own actions are taken and the multiple consequences of these actions on the lives of minorities and women.

The Process of Discrimination

Although discrimination is maintained through individual actions, neither individual prejudices nor random chance can fully explain the persistent tax bases, soaring educational and other public needs, and dwindling employment opportunities, surrounded by largely white, affluent suburbs. This cycle of poverty, however, started with and is fueled by discrimination against minorities. See also W. Taylor, Hanging Together, Equality in an Urban Nation (New York: Simon & Schuster, 1971).

"The "self-fulfilling prophecy" is a well-known phenomenon. "Blaming the victim" occurs when responses to discrimination are treated as though they were the causes rather than the results

national patterns of inequality and underrepresentation. Nor can these patterns simplistically be blamed on the persons who are at the bottom of our economic, political, and social order. We regard as an age-old canard of bigotry that the victims of discrimination have only themselves to blame for their victimization. Public opinion polls indicate that overt racism and sexism based on attitudes of white and male supremacy have been widely repudiated, but our history of discrimination based on race, sex, and national origin has not been readily put aside. Past discrimination continues to have present effects. The task today is to identify those effects and the forms and dynamics of the discrimination that reproduce them.

Discrimination against minorities and women should now be viewed as an interlocking process involving the attitudes and actions of individuals and the organizations and social structures that guide individual behavior. That process, started by past events, now routinely bestows privileges, favors, and advantages on white males and imposes disadvantages and penalties on minorities and women. This process is also self-perpetuating. Many normal, seemingly neutral, operations of our society create stereotyped expectations that justify unequal results; unequal results in one area foster inequalities in opportunity and accomplishment in others; the lack of opportunity and accomplishment confirms the original prejudices or engenders new ones that fuel the normal operations generating unequal results.

As we have shown, the process of discrimination involves many aspects of our society. No single factor sufficiently explains discrimination, and no single means will suffice to eliminate it. We must continuously examine such elements of our society as our history of de jure discrimination, deeply ingrained prejudices," inequities based on economic

of discrimination. See Chafe, Women and Equality, pp. 76–78; W. Ryan, Blaming the Victim (New York: Pantheon Books, 1971). "See.e.g., J.E. Simpson and J.M. Yinger, Racial and Cultural Minorities (New York: Harper and Row, 1965), pp. 49-79; J.M. Jones, Prejudice and Racism (Reading, Mass.: Addison Wesley, 1972), pp. 60-111; M.M. Tumin, "Who Is Against Desegregation?" in Racial and Ethnic Relations, ed. H. Hughes (Boston: Allyn & Bacon, 1970), pp. 76-85; D.M. Wellman, Portraits of White Racism (Cambridge: Cambridge University Press, 1977).

and social class, and the structure and function of all our economic, social, and political institutions" in order to understand their part in maintaining or countering discriminatory processes.

It may be difficult to identify precisely all aspects of discriminatory processes and assign those parts their appropriate weight. But understanding how discrimination works starts with an awareness that it is a process, and that to avoid perpetuating it, we must carefully assess the context and consequences of our everyday actions.

43 See,e.g., D.C. Cox, Caste, Class and Race: A Study in Social Dynamics (Garden City, N.Y.: Doubleday, 1948); W.J. Wilson, Power, Racism and Privilege (New York: MacMillan, 1973). "H. Hacker, "Women as a Minority Group," Social Forces, vol. 30 (1951), pp. 60-69; J. Feagin and C.B. Feagin, Discrimination American Style: Chafe, Women and Equality; J. Feagin, "Indirect Institutionalized Discrimination," American Politics Quarterly, vol. 5 (1977), pp. 177-200; M.A. Chesler, "Contemporary Sociological

The Commission believes that a more productive and pragmatic approach toward eliminating discrimination starts with an informed awareness of the forms, dynamics, and subtleties of the process of discrimination. Decisionmakers are then better able to develop programs utilizing the tools of administration to change an organization's practices to those that promote equality instead of support continued inequality. The problem-remedy approach advanced in this statement is intended as an aid toward moving in that direction.

Theories of Racism," in Towards the Elimination of Racism, ed. P. Katz (New York: Pergamion Press, 1976); P. Van den Berghe, Race and Racism: A Comparative Perspective (New York: Wiley, 1967); S. Carmichael and C. Hamilton, Black Power (New York: Random House, 1967); Knowles and Prewitt, Institutional Racism in America; Downs, Racism in America and How to Combat It.

Part B

This statement started from the premise that the remedy of affirmative action can be most productively discussed by reference to discrimination, the problem it was created to address.

Lawyers often equate "discrimination" with activities prohibited by law and commonly limit remedies to attempts to correct such illegal acts. This statement, however, defines "discrimination" to include all the expressions of discrimination related to race, sex, and national origin explained in the preceding section of this statement, whether legal or illegal. Correspondingly, the term "remedy" as used here encompasses all antidiscrimination measures, including those that take race, sex, and national origin into account.

This broader definition has been used because civil rights laws do not prohibit all forms of discrimination experienced by minorities and women, especially the more complex processes of discrimination. Such discrimination may continue due to practical difficulties in establishing that a legal violation has, in fact, occurred.1 In addition, despite consistently unequal results, some discrimination is entirely lawful. If civil rights laws are interpreted to 'Civil rights plaintiffs, for example, often have the difficult, and sometimes impossible, burden of proving discriminatory intent. See Harvard Civil Rights-Civil Liberties Law Review, vol. 12 (1977), p. 725. In Title VII cases, class action litigation and use of statistical data to show discrimination have become increasingly expensive, complex, and time-consuming. See,e.g., W. Connolly and D. Peterson, Use of Statistics in Equal Opportunity Litigation (New York: Law Journal Seminars-Press, 1979); B. Schlei and P. Grossman, Employment Discrimination Law (1976), pp. 1161-93. * For example, employers may lawfully hire only white males for certain jobs if discrimination in education or by other employers

restrict the use of affirmative action to those acts that are or may be illegal, they can put beyond remedial reach essential components of the process of discrimination described in Part A.

Civil rights law already requires the imposition of even the most controversial measures taking race, sex, or national origin into account when necessary to remedy illegal discrimination. These laws also encourage the voluntary implementation of affirmative action plans to eliminate all other forms of discrimination. Depending on the circumstances, these voluntary corrective efforts may include the use of quotas and "preferential treatment." The legal issue has evolved from the general question of whether affirmative action is ever lawful to the more particular question of what specific measures taking race, sex, and national origin into account within affirmative action plans are lawful in which circumstances to remedy what forms of discrimination.

This section examines civil rights laws as they both support and are supported by the problemremedy approach to the issue of affirmative action. It shows, first, how civil rights laws acknowledge the numerous forms of discrimination, including the has prevented minorities and women from acquiring the qualifications or experience actually necessary to perform the jobs. See, e.g., United Steelworkers of America v. Weber, 443 U.S. 193, 214 (1979) (Blackmun, J., concurring). The Supreme Court and others have referred to discrimination for which no one in particular can legally be held accountable as "societal" discrimination. See Part B of this statement, “Voluntary Affirmative Action," below. ⚫ Goals, quotas, and preferential treatment as legal issues are addressed in Part B, "Civil Rights Law and the Remedy," below; they are addressed as policy issues in Part C, "Goals, Quotas, and 'Preferential Treatment'."