Refashioning the Disparate Treatment and Disparate Impact Doctrines in Theory and in Practice

Justin D. Cummins *
Copyright (c) 1998 Howard Law Journal

Cite as: 41 How. L.J. 455

(reprinted by permission)


Spring, 1998

"You cannot get rid of the subordination without eliminating the privilege as well." 1

INTRODUCTION

In recent years, several analytical disciplines, including late modern and postmodern philosophy, 2 critical race theory and feminist jurisprudence, 3 and social psychology 4 have begun to acknowledge that the self is multiple. 5 This insight cuts to the core of not only how we understand ourselves individually and collectively, but also how we should regulate human affairs through the law. Until now, the classical liberal or modernist notion of the self as singular has dominated our thinking, particularly in the legal arena. 6 The modernist concept of the self as unitary and independent of experience is inaccurate, however, and continues to thwart the project of eliminating discrimination in the United States. 7

To show the descriptive and prescriptive inadequacy of the modernist notion of the self, this article draws primarily on critical race theory and social psychology. The analysis starts from the position that discrimination takes two main forms: conscious and unconscious. 8 Even though the ensuing analysis can be applied to various bases of discrimination - such as gender, socioeconomic status, sexual orientation, and physical ability - this article will focus on racial discrimination for the sake of clarity.

Recognizing that the self is multiple and relational has several important implications for the law. First, it enables litigators and courts to refashion the disparate treatment doctrine 9 to remedy currently unaddressed discrimination. 10 Second, this more accurate understanding of the self enables litigators and courts to reconceive the disparate impact doctrine 11 to identify and address discrimination in all forms. 12 Third, and most significantly, embracing this notion of self makes anti-discrimination law transformative, a mechanism for vindicating - in the most meaningful sense - the principles enshrined in the Fifth and Fourteenth Amendments to the United States Constitution. 13

I. CURRENT ANTI-DISCRIMINATION LAW: THE UNITARY SELF, "INTENTIONAL" AND "PARTICULARIZED" RACISM, AND FORMAL EQUALITY

In spite of the persuasiveness of arguments that the self is fractured, United States jurisprudence remains mired in the morass of classical liberal or modernist thought. 14 According to modernists, the self is one-dimensional and formed prior to experience. 15 From this perspective, there can be only one state of consciousness or level of volition, such that if one does not consciously discriminate, no illicit actions or legally cognizable harm occur. 16 This analytical stance also hinges on the flawed presumption that conduct flows only from individual, independent actors based on clearly identifiable motives; there is little recognition of the role of societal attitudes or action and hidden or mixed motives. 17 Consequently, anti-discrimination jurisprudence addresses only certain types of discrimination, and what little discrimination it does address, it does to a reprehensibly limited extent.

A. The Disparate Treatment Doctrine Under the Illusion of a Unitary Self

Anti-discrimination law remains woefully inadequate because, in accordance with the disparate treatment doctrine, it only recognizes conscious acts of discrimination and considers only conduct directly attributable to specific and independent actors. 18 In other words, the requirements of "intentional" and "particularized" discrimination mean that the disparate treatment doctrine permits unconscious discrimination and discrimination flowing from institutional or societal forces to flourish. In this area of the law, then, United States jurisprudence has lost the proverbial forest for the trees.

1. An Inequitable Requirement of "Intent"

Current anti-discrimination law requires a showing of "intent" - conscious and deliberate discrimination - in order for a defendant to be found liable. 19 This standard, which flows directly from the assumption that the self is unitary, poses a major problem. The "intent" requirement places an extremely heavy burden on plaintiffs, 20 meaning a significant amount of discrimination, especially of the unconscious variety, persists unchecked. 21

The unconscionability of this evidentiary imposition becomes even more apparent once one realizes that the burden falls on members of groups that typically have less resources, representation, and power. 22 The problem with this evidentiary burden, however, goes beyond the virtual impossibility of proving unconscious discrimination under the "intent" standard. Even in circumstances where conscious discrimination exists, discriminatory intent can be easily concealed. 23 Moreover, because behavior usually results from a variety of motives, defendants can often plausibly, in the legal sense, allege that racially neutral considerations underlay their actions. 24 Furthermore, discrimination often involves several decision makers, making it that much more difficult to pinpoint an explicit discriminatory motive. 25

The seminal case setting forth the "intent" requirement, Washington v. Davis, 26 illustrates the major problem with an analytical approach premised on the unitariness of the self. In Davis, two unsuccessful African-American candidates for the District of Columbia Metropolitan Police Department alleged racial discrimination in the Department's hiring practices. The plaintiffs asserted that Test 21, a written exam administered to test verbal ability and reading comprehension of job applicants, discriminated against African Americans.

Although the United States Supreme Court ruled against the plaintiffs, it admitted that there was no proof that Test 21 scores predicted job performance or measured success in job-related training. 27 Put simply, the Court recognized that the exam had little practical value. Moreover, the Court acknowledged that African Americans failed Test 21 at four times the rate of whites. 28 Nonetheless, the Court held that the test did not violate the law because no express "intent" to discriminate had been shown. 29 The Court argued that the Department's justification for the use of Test 21 - to upgrade the communication skills of the city's police officers - provided a lawful basis for the exam. 30 To so hold, after admitting that the only meaningful consequence of using Test 21 was the exclusion of African Americans, the Court had to disregard the likelihood that unconscious discrimination underlay the administering of the test. The Court made this analytical error because it started from the flawed premise that the self is unitary and incapable of having unacknowledged motives, discriminatory or otherwise. 31

2. An Unreasonable Standard of "Particularized" Discrimination

The concept of a unitary self, which underlies the disparate treatment doctrine creates another significant problem for those seeking to eliminate discrimination and achieve substantive equality 32 through litigation. It unduly narrows the scope of agency, so that many types of discriminatory acts fall outside the purview of anti-discrimination law. In a legal framework premised on the existence of an unchanging and autonomous self, only individual actors can be held liable for discrimination, and then only if they affirmatively choose to engage in specific conduct that courts deem discriminatory. From this perspective, it is not possible to discriminate simply by participating in human affairs as they are or, otherwise stated, to discriminate passively; one must actively decide to depart from the supposedly race-neutral status quo. 33 In other words, agency is individually, rather than intersubjectively or societally, formed and executed. 34

Given the pervasiveness of group-based and institutional discrimination regarding housing, employment, education, health care, lend ing, and other components of the opportunity structure, 35 the existing disparate treatment doctrine does not suffice. In order to obtain a legal remedy under current law, a plaintiff must identify an individualized culprit and prove that this actor affirmatively committed the precise discriminatory act(s) that inflicted the harm(s) alleged. 36 Such requirements mean a large amount of discrimination, especially of a passive or societal nature, goes unacknowledged and unaddressed by courts.

Village of Arlington Heights v. Metropolitan Housing Development Corporation 37 demonstrates the difficulties of establishing culpable agency when a unitary and rigid concept of the self undergirds the analysis. In Arlington Heights, a nonprofit development corporation acquired a purchase option on land on which it intended to build a racially and socioeconomically integrated townhouse project. The developer planned to build the housing project in a suburb of Chicago, Arlington Heights, which had an African-American population of approximately 25% at the time of the lawsuit. 38 Prior to this development proposal, Arlington Heights bodies had zoned the contemplated site of affordable housing for only single-family homes. Thus, the housing developer petitioned Arlington Heights to rezone the area to permit multi-family housing. 39

Following the recommendations of the planning commission, the Arlington Heights Board of Trustees rejected the rezoning application, alleging that the protection of property values and the preservation of the municipal zoning scheme required such action. 40 In reality, as the lower court record reflected, much of the opposition to the affordable housing project related to concern over the possible influx of people of color. 41 The United States Supreme Court considered this evidence and even admitted that opponents of the housing development "might have been motivated by opposition to minority groups." 42 Nonetheless, the Court held that Arlington Heights and its residents did not violate the law when they prevented the construction of the housing project. 43

In order to reach such an illogical conclusion, the Court had to conclude that the defendants did not choose to engage in any behavior that could be construed as discriminatory. The defendants were, according to the Court, merely seeking to preserve the zoning scheme and protect property values. 44 Such reasoning only becomes plausible if one presumes the self to be autonomous and static. In other words, the Court had to assume that the racist attitudes permeating society did not affect the self or alter the nature of its actions. 45 If, on the other hand, the Court had viewed the self as fluid and experientially shaped, it could have recognized that even "race-neutral" acts amount to racial discrimination when the individual and collective psyche have been tainted by racism. 46 Otherwise stated, merely maintaining the status quo, in this case by preserving the zoning scheme, in a racist society rises to the level of discriminatory conduct, even if the defendants had no conscious or unconscious discriminatory intent.

A brief reflection from a common-sense perspective confirms the truthfulness of this point. Decades of discrimination against people of color have resulted in fewer resources and choices for people of color. 47 Because people of color have comparatively less resources and wealth, they are disproportionately limited to living in low- or moderate-income housing. 48 Therefore, the prohibition of less-expensive housing by a municipality such as Arlington Heights perpetuates the exclusion of people of color from more desirable housing and other aspects of the opportunity structure. 49

To verify that discrimination dictated the defendants' conduct in Arlington Heights, one need look no further than the second rationalization for the denial of the zoning variance: the protection of property values. This justification rests solely on the flawed premise that the presence of people of color, especially those of low- or moderate-incomes, will automatically drive down real estate values. This fear has absolutely no basis in fact. 50 Thus, no credible explanation exists for excluding integrated housing except racist stereotyping of people of color as criminally inclined, irresponsible, or otherwise inferior. 51 The Court could not consider the defendants' conduct discriminatory, however, because the Court's view of the self as independent of experience and unchanging prevented it from seeing the role of societal racism in coloring the defendants' actions. 52

B. The Consequences of the Existing Disparate Treatment Doctrine: The Legitimation of Discrimination and the Perpetuation of Racial Hierarchy

As the discussed above, both the "intent" and "particularized" discrimination requirements imposed by the disparate treatment doctrine allow a substantial amount of discrimination to continue unremedied. 53 This should not be a surprise, especially in view of the structural flaw of current anti-discrimination law. Anti-discrimination law, as reflected by the disparate treatment doctrine, only seeks to secure formal equality 54 or "race-neutrality." Because the larger social, political, and economic structures remain racialized, formally equal treatment under "race-neutral" laws merely reproduces the racialized and discriminatory arrangements in the larger world. 55 Worse still, this discrimination and accompanying racial inequality take on an air of appropriateness and naturalness because, as the popular sentiment goes, "if it were actually discriminatory conduct, the law would address it." 56 In other words, having anti-discrimination laws, even as inadequate as they are, creates the impression that as long as the courts enforce the laws, no discrimination will occur. Therefore, the presence of anti-discrimination laws manufactures a sense of legitimacy for the legal and, by implication, the political, economic, and social status quo. 57

The legitimation of "unintentional" and "societal" discrimination means that members of the power structure can appear reasonable when attributing the negative consequences of racial subordination to the personal failings of people of color rather than to the true causes. 58 The negative outgrowths of discrimination, then, become an ex post facto justification for the past discrimination against people of color and the favoring of whites. 59 Similarly, the current social, economic, and institutional challenges faced by people of color due to past and present discrimination become a "rational basis" for discrimination in the future, perpetuating the simultaneous subordination of people of color and privilege of whites. 60 Consequently, anti-discrimination law, as dictated by the disparate treatment doctrine, ultimately ensures the continuation of racial hierarchy and precludes the realization of substantive equality. 61

II. MEANINGFUL ANTI-DISCRIMINATION LAW: THE MULTIPLE SELF, UNCONSCIOUS AND INSTITUTIONAL RACISM, AND SUBSTANTIVE EQUALITY

In order to eradicate discrimination from our institutions and society, anti-discrimination law must be informed by the insight that the self is relational, changing, and fractured. 62 What this understanding of the self means in concrete terms can be shown by the example of a hypothetical African-American woman who is lesbian and low-income. The notion of a non-unitary self embodies the recognition that this hypothetical person has distinct, but often interwoven, circumstances and realities based on being African-American, female, homosexual, and low-income. 63 In addition, this person interprets and is affected by the same phenomena differently if, in the particular context, the phenomena are experienced as an African American, as a woman, as a lesbian, or as one with little capital, or as a combination of these constructed traits. 64

While the preceding example may be extreme in that all of the traits ascribed to the hypothetical person are bases for discrimination and subordination, one should not lose sight of the fact that a white, male, heterosexual, financially wealthy person also has varied realities, multiple identities, and a fractured self. 65 The major difference is that the former person is subordinated and the latter person is privileged in the United States based on their respective, socially constructed traits. Obviously the categories assigned to either hypothetical person, and to people generally, are not fixed, clear-cut, or all-inclusive. 66 Moreover, the two hypothetical people, like every one, often experience phenomena, interact, and understand the world from more than one vantage point. 67 In short, identity and the self are multiple for every one of us. 68

A. The Disparate Treatment Doctrine in Light of the Fractured Self

This new conception of the self has important implications for the disparate treatment doctrine. The insight that the self is non-unitary canal open up litigators and courts, thinking about what it means to have discriminatory intent and agency and what constitutes a legitimate legal theory for bringing a discrimination lawsuit.

1. The Expansion of Legal Culpability

Legal analysis, guided by an understanding of the self as non-unitary and relational, will correct deficiencies endemic in anti-discrimination law. First, the disparate treatment doctrine can now recognize that racism and discrimination infect the unconscious as well as the conscious. 69 Second, a reconceptualized disparate treatment doctrine can define discriminatory agency in a manner that identifies fully, and addresses effectively, discriminatory conduct. 70

a. A More Accurate Concept of Intent

While there remains some disagreement within the psychological community as to the reasons for, and functions of, the unconscious, 71 nearly all experts agree that the unconscious exists and plays a powerful role in shaping human behavior. 72 Because unconscious racism and discrimination occur, 73 the question becomes how litigators and courts can identify when unconscious discrimination underlies the conduct at issue in a lawsuit. The adoption of a more comprehensive and equitable intent standard provides one response. This new intent requirement would necessitate a contextualized and nuanced analysis by courts. In each case, the courts should consider whether the alleged discriminatory conduct conveys a symbolic message to which our society attaches racial significance. 74 The determination that society views the alleged differential treatment in racial terms would constitute a finding that the defendants' conduct flowed from racially discriminatory intent. 75

Reconsidering Davis, in light of the non-unitariness of the self, should make this new analytical approach more concrete. After reflecting on this country's history and current circumstances, the Court would discern that, in two respects, society ascribes racial significance to the administering of Test 21 to prospective police officers.

First, the demand to demonstrate "proficiency" in verbal and written language skills harkens back to the racial "science" of the nineteenth and early twentieth centuries. 76 This racist pseudo-science purported to prove the inherent inferiority of African Americans, especially in terms of language skills and intelligence. 77 The myth of racial inferiority legitimated and perpetuated by racial "science" continues to this day, as illustrated by the persistence of social scientific work that claims to prove the superior intelligence of whites. 78 In this context, the administering of a verbal and language skills exam takes on a decidedly racialized character.

Second, the job position of law enforcement officer, for which officials administered Test 21, historically has been off limits to people of color, especially African Americans. 79 Because police officers have a position of authority and power that people of color traditionally have not had in the United States, the ongoing exclusion of African Americans from the police force has racial meaning. 80 The facts of Davis underscore this point. The African-American plaintiffs sought to join the Washington, D.C. force, which polices a predominantly African-American city. 81 If the Court were to adopt an intent standard that recognized unconscious volition and undertook the foregoing analysis, it would conclude that the defendants violated the law by administering Test 21.

b. A More Comprehensive Notion of Agency

Understanding the self as relational, changing, and multiple will enable litigators and courts to discern and remedy of discriminatory agency in all of its manifestations. In other words, they will realize that the self, and therefore individual actors, are shaped by experience and interaction with others and the overarching environment. 82 Consequently, litigators and courts can recognize that conduct, even if not motivated by a conscious or unconscious intent to discriminate, nonetheless amounts to discrimination if it perpetuates a status quo that flows from institutional or societal racism. 83 One critical race theorist succinctly described the role of societal racism in creating culpable agency among individuals that engage in "race-neutral" conduct: "the actors themselves are part of a culture and presumably could not have acted without being influenced by racial considerations, even if they were unaware of their racist beliefs." 84

A brief discussion of Arlington Heights will illustrate this refashioned concept of agency and the analytical implications. In that case, the defendants denied a zoning variance that would have allowed for the construction of racially integrated, affordable housing on the grounds that the municipal zoning scheme should be preserved and property values protected. 85 While these reasons are facially "race- neutral," they perpetuate a status quo that directly grows out of systematic discrimination at the institutional and societal levels. 86 To date, racism in various forms has distorted the housing market to the detriment of people of color. 87 Local zoning schemes have been one of the most pervasive and effective means of exclusion. 88 In this context, maintenance of the Arlington Heights' zoning scheme takes on a racially discriminatory hue.

Similarly, the property-values justification flows from institutional and societal discrimination. 89 Predominantly white suburbs, such as Arlington Heights, have high property values precisely because central city communities of color do not. 90 Throughout the twentieth century, public and private policies have concentrated poverty in certain areas and wealth in others through racial discrimination with respect to housing, education, employment, lending, and so forth. 91 Therefore, Arlington Heights' privileged position reflects past and present racial discrimination; the maintenance of that privileged position, as reflected by artificially high property values, consequently amounts to discriminatory agency.

2. The Disparate Impact Doctrine Refashioned in Light of the Relational Self

The reconceptualized intent and agency standards explored above would undoubtedly increase the opportunities for plaintiffs to litigate discrimination claims - and prevail. Acknowledgment of the non-unitariness of the self, however, would enhance the potency of anti-discrimination law litigation in another way completely independent of the expansion of the intent and agency concepts. A proper understanding of the self would provide the theoretical foundation for a new cause of action, that which shall be referred to as the disproportionate impact doctrine. Disproportionate impact theory closely resembles disparate impact theory, but it addresses both sides of the equation, so to speak. In other words, while disparate impact theory offers a remedy only for racial subordination, 92 disproportionate impact theory would provide a remedy for either racial subordination or racial privilege. 93 For example, if whites receive benefits - jobs, promotions, contracts, housing opportunities, or loans - to an extent substantially exceeding their numbers within the pool of prospective recipients or applicants, people of color would have the evidentiary basis for a cause of action. 94

Disproportionate impact theory hinges on the insight that the self is dynamic and interdependent and, consequently, that the privileging of one means the subordination of another (and vice-versa). 95 When using this analytical approach, courts must vigorously guard against the conceptual error made regarding affirmative action and voting rights - equating rigid neutrality or symmetry with fairness. 96 To put it more concretely, disproportionate benefits to people of color may be appropriate in some cases, such as when the differential results from the effort to remedy the effects of past or ongoing discrimination. Given whites' historical and current position of privilege, however, it is highly unlikely that disproportionate benefits to them would be appropriate in the immediate future. 97

Courts must always undertake this contextualized and nuanced analysis or the disproportionate impact doctrine will become yet an other tool for claimants of "reverse discrimination" to defend white privilege and rationalize racial subordination. 98

A brief discussion of Smith v. Western Electric Co., Inc. 99 will help to explicate the disproportionate impact doctrine. In Smith, six African-American employees filed a class-action lawsuit, asserting that the defendant employer had racially discriminated against African Americans concerning hiring, promotion, and other terms and conditions of employment. In ruling against the plaintiffs, the court disregarded the clear disproportionate privileging of whites and the accompanying discrimination against people of color with respect to hiring: the employer hired more than 20% of white applicants, but less than 10% of African-American applicants. 100 The court argued that these statistics did not take into account applicants' performance on the admission test given by the employer. 101 According to the court's purportedly race-neutral analysis, white and African-American applicants who performed well on the test were hired by the defendant at approximately the same rate. 102

Contrary to the court's assertions, the test used in Smith, much like Test 21 at issue in Davis, was not a neutral mechanism for evaluating job applicants. In reality, white applicants received a high score on the test, and thus were more seriously considered for employment, in disproportionate numbers. 103 Consequently, the administering of the test created and perpetuated white privilege. 104 That there was such an impact becomes even more troubling in light of the fact that performance on the test had a "low correlation with job success." 105 In other words, like Test 21 in Davis, the admission test used in Smith had little practical significance beyond its disproportionate racial impact. Nonetheless, the employer continued to use the test as the primary basis for making hiring decisions. 106 Despite such compelling evidence of racial discrimination, the court in Smith could not find the employer liable. The existing disparate impact doctrine did not allow the court to consider whether the test disproportionately privileged white applicants and, therefore, discriminated against applicants of color.

A short examination of the court's analysis in Smith regarding the plaintiffs' discriminatory promotion claim further illustrates the application of the disproportionate impact doctrine. The court concluded that the employer did not discriminate against African-American employees concerning promotions because African-American employees typically had less specialized skills and, thus, were less promotable. 107 This analysis ignored the disproportionate privileging of white employees, paradoxically, even as the analysis acknowledged it. Otherwise stated, the court admitted that white employees were better positioned concerning promotions without critically examining why that was so. The court did not undertake such an examination because the current disparate impact doctrine only permits an inquiry into whether there was a legally cognizable adverse impact on African Americans.

Had the court in Smith employed the disproportionate impact doctrine, it could have considered all evidence of racial discrimination, including the disproportionate privileging of white employees. For example, the court could have recognized the significance of the fact that the supervisors charged with promoting employees were white and were channeling the work that imparted specialized skills to fellow white employees. 108 This channeling often prevented African- American employees from being eligible for promotions because they did not have the chance to develop specialized skills. 109 If the court's analysis in Smith had turned on these facts, the court could not have plausibly relied on the lack-of-skills argument to explain away the disproportionate advantage bestowed on white employees regarding promotions. In short, the court would have recognized that white employees were more promotable precisely because of the racial discrimination engaged in by their employer.

B. Reconceptualizing the Disparate Treatment and Disparate Impact Doctrines to Eliminate Racial Discrimination and Dismante Racial Hierarchy

As illustrated above, anti-discrimination law reconceived in light of the non-unitary nature of the self would address all forms of discrimination. Expanding the definition of intent and the scope of agency would enable courts to remedy unconscious and societal discrimination, respectively. Moreover, addressing racial (white) privilege in addition to racial subordination under a disproportionate impact theory, would empower courts to identify and remedy still more discrimination because racial discrimination can manifest itself as either privilege or subordination, not just subordination. 110

By exposing and addressing the twin effects of discrimination (the privilege of whites and the subordination of people of color), refashioned anti-discrimination law would help to remove the sense of neutrality, naturalness, and inevitability that has attached to racial exclusion and inequality to date. 111 Removal of the aura of legitimacy of racial exclusion and inequality would make possible, even inevitable, greater participation by people of color in the opportunity structure; by so doing, antidiscrimination law could pave the way for dismantling racial hierarchy. 112 With the project of destroying racial hierarchy underway, the realization of substantive equality for everyone would certainly follow. 113

CONCLUSION

The philosophical debate about whether the self is unitary or non-unitary has serious implications for the law. As anti-discrimination law exemplifies, legal analysis premised on a unitary nature of the self greatly undermines the effectiveness of legal rules and mechanisms. In the context of anti-discrimination law, a unitary-based analysis fails to address unconscious and societal discrimination. Not only does anti-discrimination law fail to remedy adequately racial subordination, it also completely ignores racial (white) privilege, all in the quest to preserve formal equality. Consequently, anti-discrimination law, as dictated by the current disparate treatment and disparate impact doctrines, preserves the racial status quo.

In contrast, basing anti-discrimination law on the understanding that the self is not unitary would have several positive effects. Anti- discrimination law, so conceived, would enable litigators and courts to use the disparate treatment doctrine to address all discrimination, whether conscious or unconscious. In addition, this analytical approach will expose and root out the subtle types of discrimination that perpetuate a status quo tainted by institutional racism. Finally, the more accurate notion of the self would allow litigators and courts to refashion the disparate impact doctrine to unmask and address both subordination and privilege. The net effect will be the elimination of not only racial discrimination, but also racial hierarchy. Nothing less will achieve that which the Fifth and Fourteenth Amendments demand.


NOTES


* J.D. 1997, University of Minnesota Law School; M.A. 1996, Hubert H. Humphrey Institute of Public Affairs; B.A. 1992, Haverford College. S.T.P. The author is currently a civil rights lawyer based in Minneapolis, Minnesota.

n1 Trina Grillo, Anti-Essentialism and Intersectionality: Tools to Dismantle the Master's House, 10 Berkeley Women's L.J. 16, 19 (1995).

n2 The postmodernists are perhaps the most well-known proponents of the view that the self is non-unitary rather than unitary. In deconstructing the self, however, the postmodernists typically do not offer a positive alternative concept. See, e.g., Deconstruction in a Nutshell: A Conversation with Jaques Derrida 113-21 (John D. Caputo ed., 1997); Ian Hacking, Self- Improvement, in Foucault: A Critical Reader 235-49 (David Couzens Hoy ed., 1992); Hubert L. Dreyfus & Paul Rabinow, Michel Foucault: Beyond Structuralism and Hermeneutics 208-26 (1983). The late modernists offer a more helpful view of the self because they try to reconstruct the world and individual and communal relations, avoiding the nihilism that often underlies the postmodernist vision. See generally Selya Benhabib, Situating the Self: Gender Community and Postmodernism in Contemporary Ethics (1992); Michael J. Sandel, Liberalism and the Limits of Justice (1982). Non-western philosophers, such as thinkers within the Buddhist tradition, also have articulated a compelling concept of the self as multiple. See generally Anne Carolyn Klein, Meeting the Great Bliss Queen: Buddhists, Feminists, and the Art of the Self (1995).

n3 For accounts that weave together the insights of both critical race theory and feminist theory when describing the fractured self, see Regina Austin, "Sapphire Bound," 1989 Wis. L. Rev. 539; Kimberle Williams Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color, 43 Stan. L. Rev. 1241 (1993); Grillo, supra note 1; Angela P. Harris, Foreword: The Unbearable Lightness of Identity, 11 Berkeley Women's L.J. 207 (1996).

n4 See, e.g., 19 Sigmund Freud, The Ego and the Id, in The Standard Edition of the Complete Psychological Works of Sigmund Freud 3 (James Strachey ed., 1961); Richard E. Nisbett & Timothy DeCamp Wilson, Telling More than We Can Know: Verbal Reports on Mental Processes, 84 Psychol. Rev. 231 (1977).

n5 The fractured nature of the self results from the diversity of experiences that characterize modern-day existence. See generally Kenneth J. Gergen, The Saturated Self: Dilemmas of Identity in Contemporary Life (1991) (describing the interaction of the multi- faceted self with the larger world). The fractured self interprets and is shaped by later experiences, including interaction and conflict with other components of the self. See generally James Boyle, Is Subjectivity Possible? The Postmodern Subject in Legal Theory, 62 U. Colo. L. Rev. 489 (1991) (discussing the internal tensions within the self).

n6 See, e.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) (holding that, in awarding construction contracts, all racial classifications, whether imposed by federal, state, or local governments, shall be subjected to strict judicial scrutiny); Shaw v. Reno, 509 U.S. 630 (1993) (finding a redistribution scheme designed to enhance the voting strength of communities of color to be unconstitutional); Wards Cove Packing Co., Inc. v. Antonio, 490 U.S. 642 (1989) (ruling that a substantial racial imbalance in the work force was irrelevant to an inquiry into the existence of discrimination); Washington v. Davis, 426 U.S. 229 (1976) (holding that the racially disparate impact of a test administered to prospective employees did not violate the law absent a showing of discriminatory intent).

n7 Alan Freeman, Antidiscrimiantion Law: The View from 1989, in The Politics of Law: A Progressive Critiques 121-41 (David Kairys ed., 1990).

n8 For a detailed analysis of unconscious discrimination in the legal context, see Charles R. Lawrence III, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 Stan. L. Rev. 317, 329-43 (1987).

n9 The current disparate treatment doctrine prohibits "intentional" differential treatment on the basis of race or other perceived traits. See generally Joel Friedman & George Strickler, The Law of Entertainment Discrimination: Cases and Materials (3d ed. 1987).

n10 See infra notes 61-91 and accompanying text.

n11 This standard does not require a showing of discriminatory "intent" on the part of the defendant(s) for a plaintiff to prevail. Instead, a plaintiff need only show that the existing policies or practices have had a substantially adverse effect on members of a protected class and defendant does not make a showing of a sufficient business justification. See generally Robert G. Schwemm, Housing Discrimination: Law and Litigation (1990).

n12 See infra notes 92-109 and accompanying text.

n13 U.S. Const. amend. V, XIV. These amendments protect against federal, state, and local governmental impingement on the equality of any person because of, inter alia, race. The Fifth and Fourteenth Amendments also protect against discrimination by private actors where "state action" has been found or where the private actor has engaged in an activity traditionally performed by the government, see, e.g., Marsh v. Alabama, 326 U.S. 501 (1946) (holding that a town wholly owned by a corporation was like any other town and its operation was, therefore, a "public function" amounting to "state action"), or a symbiotic relationship exists between the government and the private discriminator, see, e.g., Burton v. Wilmington Parking Auth., 365 U.S. 715 (1961) (holding that the mutually beneficial relationship between the state and private discriminator triggered "state action" analysis).

n14 See, e.g., Hunter v. Underwood, 471 U.S. 222 (1985) (holding that Section 182 of the Alabama Constitution violated the Fourteenth Amendment after finding the presence of clear discriminatory "intent"); Washington v. Davis, 426 U.S. 229 (1976) (reasoning that a showing of discriminatory "intent" is necessary to trigger legal culpability). This anachronistic perspective holds that the self is not interdependent and experientially created and shaped. See generally John Rawls, A Theory of Justice (1971) (outlining an analytical approach - decision-making behind "the veil of ignorance" - to forge a more just society).

n15 See, e.g., Immanuel Kant, Critique of Pure Reason 154 (Norman Kemp Smith trans., 1958).

n16 See, e.g., Hunter, 471 U.S. at 222; Davis, 426 U.S. at 229.

n17 See, e.g., Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252 (1977) (holding that racially discriminatory intent must be proven to establish a violation of the Fourteenth Amendment; a racially disparate impact is insufficient to show a constitutional violation has occurred).

n18 Id.; Davis, 426 U.S. at 229. The United States Supreme Court's recent decisions regarding race conscious remedies for past racial discrimination, such as affirmative action and voting district reapportionment, also offer graphic examples of the Court's self-imposed blindness to anything but "intentional" and "clearly identifiable and attributable" racial discrimination. See, e.g., Adarand Constructors, Inc., 515 U.S. at 200; Shaw, 509 U.S. at 630.

n19 For the first articulation of this proposition, see Davis, 426 U.S. at 229.

n20 For an incisive articulation of this predicament, see generally John Hart Ely, The Centrality and Limits of Motivation Analysis, 15 San Diego L. Rev. 1155, 1160 (1978) and Kenneth Karst, The Costs of Motive-Centered Inquiry, 15 San Diego L. Rev. 1163, 1165 (1978). See also John Charles Boger, Toward Ending Residential Segregation: A Fair Share Proposal for the Next Reconstruction, 71 N.C. L. Rev. 1574, 1583-84 (1993) (discussing the difficulty of showing that a claimant has suffered a legally cognizable injury even under the more plaintiff-friendly disparate impact standard); Lawrence, supra note 8, at 369-76 (exploring strategies to overcome the substantial evidentiary burdens imposed by the "intent" standard).

n21 Id.

n22 People of color, the typical victims of invidious racial discrimination in the United States, usually have less wealth, access to resources, and political power. Melvin Oliver & Thomas Shapiro, Black Wealth/White Wealth: A New Perspective on Racial Inequality 136-151 (1995) (detailing the discrimination-induced dearth of resources in communities of color in the United States); Michael Omi & Howard Winant, Racial Formation in the United States: From the 1960s to the 1990s 66 (2d ed., 1994) (observing that throughout United States history, people of color have been excluded from critical political, social, and cultural institutions); W. Haywood Burns, Race in Early America, in The Politics of Law: A Progressive Critique 119 (David Kairys ed., 1990) (describing the comparative powerlessness of African Americans); john a. powell, Transformative Action: A Strategy for Ending Racial Hierarchy and Achieving True Democracy in the United States, South Africa, and Brazil Part I.B.1. (forthcoming 1999 by Southern Education Foundation) (analyzing the comparative disadvantage of people of color in the United States, South Africa, and Brazil).

n23 For a detailed critique of the "intent" standard, see Barbara Flagg, "Was Blind But Now I See": White Race Consciousness and the Requirement of Discriminatory Intent, 91 Mich. L. Rev. 953 (1993); Lawrence, supra note 8.

n24 Lawrence, supra note 8, at 319-20.

n25 Id.

n26 426 U.S. 229 (1976).

n27 Id. at 256-73.

n28 Id. at 237.

n29 Id. at 246, 256-73.

n30 Id.

n31 Id. at 245 ("As an initial matter, we have difficulty understanding how a law establishing a racially neutral qualification for employment is nevertheless racially discriminatory ... .").

n32 This contextualized understanding of equality avoids the mistake of equating symmetry or rigid neutrality with equality. Substantive equality embodies the idea that treating unequally situated people the same perpetuates inequality. For a more in depth discussion of the meaning of substantive equality, see Catherine MacKinnon, Only Words 85-91 (1993); Laurence H. Tribe, American Constitutional Law 1514 (1988); Kimberle Williams Crenshaw, Race, Reform and Retrenchment: Transformation and Legitimation in Anti-Discrimination Law, 101 Harv. L. Rev. 1331, 1384 (1988). See generally Roberto Unger, False Necessity: Necessitarian Social Theory in the Service of Radical Democracy (1987).

n33 For a discussion of the flawed assumption that the status quo is neutral and natural, see Martha Minnow, Making All the Difference 49-78 (1990); John O. Calmore, Racialized Space and the Culture of Segregation: "Hewing a Stone of Hope from a Mountain of Despair," 143 U. Pa. L. Rev. 1233, 1243-44 (1995). See also U.S. v. Bakke, 438 U.S. 265, 327 (1978) (plurality) ("We cannot ... let color blindness become myopia which masks the reality that many created 'equal' have been treated within our lifetimes as inferior both by the law and by their fellow citizens.").

n34 For a well-known example of this line of thinking in United States jurisprudence, see Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252 (1977).

n35 Justin D. Cummins, Recasting Fair Share: Toward Effective Housing Law and Principled Social Policy, 14 Law & Ineq. J. 339, 341-57 (1996) (documenting the extent of discrimination with respect to the opportunity structure in the United States and discussing the social, economic, and policy implications); john a. powell, The "Racing" of American Society: Race Functioning as a Verb Before Signifiying as a Noun, 15 Law & Ineq. J. 99, 122-23 (1997) (discussing people of color's lack of access to the opportunity structure).

n36 See, e.g., Village of Arlington Heights, 429 U.S. at 252. In the United States Supreme Court's most recent cases dealing with race and discrimination, the Court has repeatedly and vociferously stated the need for proof of "particularized" discrimination before a legal remedy becomes appropriate. See, e.g., Shaw v. Hunt, 517 U.S. 899 (1996); Bush v. Vera, 517 U.S. 952 (1996); Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995); Missouri v. Jenkins, 115 U.S. 70 (1995); Shaw v. Reno, 509 U.S. 630 (1993).

n37 Village of Arlington Heights, 429 U.S. at 252.

n38 Id. at 255.

n39 Id. at 256-57.

n40 Id. at 257-59.

n41 Id. at 257-58.

n42 Id. at 269.

n43 Id. at 269-71.

n44 Id. at 269-70.

n45 Id. (reasoning that the evidence of racism in the community in which the racially integrated affordable housing was to be built did not taint the motives underlying the defendants' opposition to the housing).

n46 See, e.g., Lawrence, supra note 8, at 339-44.

n47 Anthony Downs, New Visions for Metropolitan America 25-26 (1994) (discussing the role of race and racism in creating and maintaining segregated housing patterns); Dennis R. Judd & Todd Swanstrom, City Politics: Private Power and Public Policy 155 (1994) (describing the discriminatory real estate and lending practices as reasons for the exclusion of people of color from certain communities and types of housing); Oliver & Shapiro, supra note 22, at 8 (showing that governmental and private actors and policies have erected obstacles to access to housing and capital markets, undermining the ability of people of color to accumulate wealth and secure a better life); Reynolds Farley, Neighborhood Preferences and Aspirations Among Blacks and Whites, in Housing Markets and Residential Mobility 161, 183-85 (G. Thomas Kingsley & Margery Austin Turner eds., 1993) (determining that racism taints residential patterns and ultimately results in the discrimination against, and exclusion of, people of color).

n48 Id.

n49 See Judd & Swanstrom, supra note 47, at 212-13; Douglas S. Massey & Nancy A. Denton, American Apartheid: Segregation and the Making of the Underclass 160-61 (1993) (illustrating the ongoing discrimination against people of color); Michael H. Schill & Susan M. Wachter, The Spatial Bias of Federal Housing Law and Policy: Concentrated Poverty in Urban America, 143 U. Pa. L. Rev. 1285, 1333-35 (1995) (discussing the deleterious effects of discrimination and segregation on low-income communities of color).

n50 See Edward D. Goetz et al., Center for Urban and Regional Affairs, There Goes the Neighborhood? The Impact of Subsidized Multi-Family Housing on Urban Neighborhoods 12-15 (1996) (analyzing the impact of siting affordable housing on surrounding property values, reviewing over one dozen similar studies, and concluding that the presence of low- and moderate-income housing does not depress surrounding property values); Robert Lyons & Scott Loveridge, University of Minnesota's Department of Agriculture and Applied Economics, An Hedonic Estimation of the Effect of Federally Subsidized Housing on Nearby Residential Property Values I (1993) (showing that affordable housing units have little, if any, negative impact on the value of surrounding properties); Hugh Nourse, The Effect of Public Housing on Property Values in St. Louis, 39 Land Econ. 433, 440- 41 (1963) (revealing that the presence of low- and moderate-income housing has little effect on surrounding property values); William Rabiega et al., The Property Value Impacts of Public Housing Projects in Low and Moderate Density Residential Neighborhoods, 60 Land Econ. 174, 178 (1984) (illustrating that affordable housing does not harm the value of nearby real estate).

n51 Lawrence, supra note 8, at 369-70 (explaining the subtle, yet decisive, role racism plays in affecting intent and agency).

n52 Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 269-70 (1977).

n53 See supra notes 18-52 and accompanying text.

n54 This principle demands that all individuals should be treated the same, regardless of their comparative position or history and regardless of context. For cogent critiques of this view of equality, see generally Neil Gotanda, A Critique of "Our Constitution is Color-Blind," 44 Stan. L. Rev. 1 (1991); john a. powell, Racial Realism or Racial Despair?, 24 Conn. L. Rev. 533 (1992).

n55 Derrick Bell, Racial Realism, 24 Conn. L. Rev. 363, 377 (1992) (criticizing equality, in its formalistic sense, as ultimately an empty concept); Gotanda, supra note 54, at 68. See also Mari J. Matsuda, Voices of America: Accent, Antidiscrimination Law, and a Jurisprudence for the Last Reconstruction, 100 Yale L.J. 1329, 1392-96 (1991).

n56 See john a. powell, An Agenda for the Post-Civil Rights Era, 20 S.F. L. Rev. 889, 904 (1995) (noting that the United States Supreme Court has adopted this perspective).

n57 For an excellent discussion of the seemingly paradoxical phenomenon of legitimating discrimination through anti-discrimination laws, see generally Roy L. Brooks, Racial Subordination Through Formal Equal Opportunity, 25 San Diego L. Rev. 879 (1988); Crenshaw, supra note 32; Alan Freeman, Racism, Rights and the Quest for Equality of Opportunity: A Critical Legal Essay, 23 Harv. C.R.-C.L. L. Rev. 295 (1988). In the context of analyzing Harvard Law School faculty diversity efforts, a prominent critical race theorist offers an excellent description of how the power structure makes marginal modifications to the status quo to create a "safety valve" for dissent and, ultimately, to protect and reinforce existing discriminatory arrangements: "by hiring a few token people of color - but not so many as to upset the order of things - the faculty assures itself that there is no longer an irrational, color-based barrier to the admission of blacks to the Academy. Without any earth-shattering changes in the status quo, they can promote a few people of color and then claim that things are fair and even." Derrick Bell, Confronting Authority: Reflections of an Ardent Protester 77 (1994).

n58 David Theo Goldberg, Racist Culture: Philosophy and the Politics of Meaning 198 (1993) (explaining how the anti-social behavior growing out of discrimination-induced deprivation becomes a self-serving rationale for those who discriminate to continue doing so); Robert Chang, Toward an Asian American Scholarship: Critical Race Theory, Post-Structuralism, and Narrative Space, 81 Cal. L. Rev. 1243, 1286 (1993) ("[Racial] exclusion, at a certain point, becomes so pervasive that it becomes invisible. In this way, the present-day effects of exclusion become disconnected from the past. As a consequence, the oppressed are blamed for the sins of their oppressors."). See generally, Alex Johnson, Jr., How Race and Poverty Intersect to Prevent Integration: Destabilizing Race as a Vehicle to Integrate Neighborhoods, 143 U. Pa. L. Rev. 1595 (1995); Martha Mahoney, Segregation, Whiteness, and Transformation, 143 U. Pa. L. Rev. 1659 (1995).

n59 Id.; Calmore, supra note 33. See also Johnson, supra note 58; Mahoney, supra note 58. Some commentators have even argued that racial inequality, even if not flowing directly from past discrimination, induces future discrimination. See Paul Brest, Foreword: In Defense of the Antidiscrimination Principle, 90 Harv. L. Rev. 1, 43 (1976); Charles R. Lawrence, "Justice" or "Just Us": Racism and the Role of Ideology, 35 Stan. L. Rev. 831, 849 (1983) (reviewing David L. Kirp, Just Schools: The Idea of Racial Equality in American Education (1982)).

n60 See generally Derrick Bell, Race, Racism, and American Law (1992) (illustrating the subordination of people of color and the privilege of whites achieved through legal discourse and United States jurisprudence); Goldberg, supra note 58; United States National Advisory Committee on Civil Disorders, The Kerner Report (1965) (documenting the causes and effects of racial inequality in the United States) [hereinafter Kerner Commission].

n61 John O. Calmore, Exploring Michael Omi's "Messy" Real World of Race: An Essay for "Naked People Longing to Swim Free," 15 Law & Ineq. J. 25, 53 (1997) ("the new right and neoconservative right projects have ... effectively rearticulated the meaning and significance of race in a manner that supports a societal organization and culture that ... reinforces white dominion and privilege ... a majority of the Supreme Court justices is taking its lead from these projects and is intentionally solidifying the project's gains.").

n62 See generally Sandel, supra note 2.

n63 For a good discussion of this dynamic, frequently referred to as intersectionality, see, e.g., Austin, supra note 3; Crenshaw, supra note 3; Katherine P. Ewing, The Illusion of Wholeness: Culture, Self, and the Experience of Inconsistency, 18 Ethos 251 (1990); Grillo, supra note 1; Harris, supra note 3.

n64 See, e.g., Audre Lorde, Age, Race, Class, and Sex: Women Redefining Difference, in Sister Outsider 114-23 (1984) (describing the multiple nature of the self and the related bases of subordination).

n65 For a discussion of the fractured nature of identity generally, see, e.g., Gergen, supra note 5.

n66 See generally id.; Austin, supra note 3; Crenshaw, supra note 3; Grillo, supra note 1; Harris, supra note 3.

n67 Id. For a succinct analysis of courts' failure to address discrimination that occurs at the intersection of multiple facets of the self, see Kimberle Williams Crenshaw, A Black Feminist Critique of Antidiscrimination Law and Politics, in The Politics of Law: A Progressive Critique (David Kairys ed., 1990); Angela Harris, Race and Essentialism in Feminist Legal Theory, 42 Stan. L. Rev. 581 (1990).

n68 See, e.g., Amy Mullin, Selves, Diverse and Divided: Can Feminists Have Diversity Without Multiplicity, 10 Hypatia 1, 1-8 (1995); Ewing, supra note 63, at 251-55.

n69 See, e.g., Lawrence, supra note 8, at 336-39 (discussing numerous psychological studies and articles that show racism to exist at the unconscious level).

n70 See infra notes 82-91 and accompanying text.

n71 Psychoanalytic theory or Freudian psychology argues that the human mind consists of the Id and the Ego. The Id occurs outside of awareness and, thus, has become known as the unconscious. This mental process is instinctual and consists of desires that may be in conflict with the conscious mental process, otherwise known as the Ego. The Id occurs at the unconscious level because of defense mechanisms, such as repression, denial, and projection, that disguise forbidden drives of the Id, such as desires to discriminate racially, so as to make them acceptable to the Ego. See generally Freud, supra note 4. Cognitive psychology, in contrast, asserts that instinctive drives do not dictate human conduct. This school of thought asserts that an individual's effort to understand his or her relationship to the world, while maintaining personal integrity, guides behavior. According to this perspective, much of this process occurs outside of awareness, especially when tension exists between the person's need for simplicity in the face of the world's complexity or a conflict exists between perspectives, such as racially discriminatory ideas coexisting with the view of the self as being non-racist. Henri Tajfel, Cognitive Aspects of Prejudice, 25 J. Soc. Issues 79, 80 (1969).

n72 See, e.g., id.

n73 Even the United States Supreme Court has acknowledged, implicitly, the existence of unconscious discrimination. See City of Rome v. U.S., 446 U.S. 156 (1980) (holding that there is a Fifteenth Amendment violation, even without a showing of intentional or conscious discrimination, if the acts at issue nonetheless have the effect of denying the right to vote). See also Lawrence, supra note 8, at 336-39.

n74 This approach hinges on the insight that culture, including the media, family, and friends, transmits beliefs and biases in a way that is so pervasive and subtle that one does not experience the transmissions as conscious instructions. Consequently, the individual has no awareness that, for instance, the cultural stereotypes of African Americans have shaped his or her perception that African Americans are lazy or less intelligent. Lawrence, supra note 8, at 323.

n75 For an extensive discussion of this mode of analysis, see id. at 323-24, 355-81.

n76 Stephen Jay Gould, The Mismeasure of Man 30-72 (1981) (discussing the use of "science" to legitimate racist attitudes and actions).

n77 Id.

n78 See, e.g., Richard Hernstein & Charles Murray, The Bell Curve (1994); Arthur R. Jensen, Bias in Mental Testing (1980). That these "studies" are widely condemned as methodologically flawed, of dubious descriptive and prescriptive value, and racist, does not detract from the fact that this type of work continues to be done, published, and disseminated widely.

n79 See, e.g., Lawrence, supra note 8, at 370-71.

n80 Id. at 371-73 (explaining why the administration of Test 21 reflects discriminatory intent). See also U.S. v. Paradise, 480 U.S. 149, 167 n.18 (1986) (recognizing that racial discrimination by police departments in the employment context is a particularly significant contravention of public policy).

n81 Washington v. Davis, 426 U.S. 229, 232 (1976).

n82 See, e.g., Gergen, supra note 5; Sandel, supra note 2.

n83 This theory of agency closely resembles, but is distinguishable from, the theory underlying disparate impact analysis. For a discussion of the disparate impact doctrine, see supra note 10 and accompanying text. This notion of agency goes a step further than current disparate impact theory in that even if there is no differential impact on the class of which the plaintiff is a member, there can still be culpable agency. In other words, this theory of agency is akin to the application of the disparate impact analysis to an individual rather than a class. There is no need to make a showing that members of a protected class have been disproportionately disadvantaged, only that the conduct at issue disadvantaged the plaintiff and took place in the context where racism infected the institutions implicated by the legal claim(s).

n84 Lawrence, supra note 8, at 324.

n85 Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 257-59 (1977).

n86 See infra notes 87-88 and accompanying text.

n87 John A. Powell, How Government Tax and Housing Policies Have Racially Segregated America, in Taxing America 80 (Karen B. Brown & Mary Louise Fellows eds., 1996) (describing the ways that racial discrimination has disadvantaged people of color); Cummins, supra note 33, at 351-57 (discussing numerous ways that racism has plagued the housing market and citing a large body of literature that proves the persistence of racial discrimination).

n88 Judd & Swanstrom, supra note 47; Massey & Denton, supra note 49; Schill & Wachter, supra note 49.

n89 See infra notes 86-87 and accompanying text.

n90 Judd & Swanstrom, supra note 47, at 238-41 (outlining the costs of suburbanization); Massey & Denton, supra note 49, at 51-54 (analyzing the degree and consequences of segregation); Schill & Watcher, supra note 49, at 1308 (documenting segregation and racial inequality in the United States); Harold A. McDougall, Regional Contribution Agreements: Compensation for Exclusionary Zoning, 60 Temp. L.Q. 665, 672 (1987) (analyzing the advantages enjoyed by suburbanites at the expense of residents of central cities).

n91 Id.; see also Institute on Race & Poverty, McKnight Foundation, Examining the Relationship Between Housing, Education, and Persistent Segregation: Final Report 28-36 (1998) (describing the links between segregation and the concentration of poverty); Pamela Keating & Jeannie Oakes, Educ. Comm'n States, Access to Knowledge: Breaking Down School Barriers to Learning 3, 4 (1988) (documenting how racism and poverty combine to create barriers in the educational setting); Timothy Bates, Small Business Viability in the Urban Ghetto, 29 J. Regional Sci. 625, 635-37 (1989) (revealing the pervasiveness of racial discrimination in the lending industry); Cummins, supra note 35, at 342-55, 376 (discussing the vast array of discrimination regarding the opportunity structure and the concomitant polarization of metropolitan areas); George C. Galster, Polarization, Place, and Race, 71 N.C. L. Rev. 1421, 1424-46 (1993) (explaining disparities in employment and documenting discrimination in the lending and housing markets); Douglas Massey, America's Apartheid and the Urban Underclass, 68 Soc. Serv. Rev. 471, 471 (1994) (illustrating that discrimination-induced segregation undermines socio-economic mobility, causes isolation of people by race and poverty, and imposes various forms of disadvantage on isolated populations).

n92 For the seminal case adopting this doctrine in the employment context, see Griggs v. Duke Power Co., 401 U.S. 424 (1971).

n93 Although some courts have used the term "disproportionate impact," the analysis has always been limited to the disparateness of the impact - the subordination alleged. Disproportionate impact, as proposed in this article, is true to the meaning of "disproportionate" in that it refers to both subordination and privilege.

n94 As with disparate impact analysis, disproportionate impact analysis will not consider this dispositive, but rather as prima facie evidence of discrimination. Thus, the defendants will have the opportunity to offer a sufficient and genuine non-discriminatory explanation for the disproportionate privileging of members of the defendant class, in this case whites, and therefore avoid legal liability.

n95 See, e.g., Kerner Commission, supra note 60, at 2 ("What white Americans have never fully understood - but what the Negro can never forget - is that white society is deeply implicated in the ghetto. White institutions created it, white institutions maintain it, and white society condones it."); Grillo, supra note 1 (discussing the symbiotic relationship between privilege and subordination). See also powell, The "Racing" of American Society, supra note 35, at 122 ("By failing to critically examine their identity and their status, Whites fail to comprehend that the denial of opportunity for minorities has led to increased access to these opportunities for the majority."). This is not to say privilege and subordination are a zero-sum proposition; there are hierarchies among the privileged and among the oppressed, especially in our highly stratified, capitalistic system. That there are levels and degrees of privilege and subordination should not be a surprise given the multiple nature of the self. See, e.g., Austin, supra note 3; Crenshaw, supra note 3; Ewing, supra note 63; Grillo, supra note 1; Harris, supra note 3.

n96 For examples of this conceptual error regarding affirmative action, see Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995); City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989). For examples of this conceptual error concerning voting rights, see Shaw v. Hunt, 517 U.S. 899 (1996); Bush v. Vera, 517 U.S. 952 (1996); Miller v. Johnson, 515 U.S. 900 (1995); Shaw v. Reno, 509 U.S. 630 (1993).

n97 Peggy McIntosh described the comparative advantage of whites in the United States as "'an invisible knapsack' of provisions, maps, guides, codebooks, passports, visas, compasses, and blank checks." Mahoney, supra note 58, at 1665 (citing Peggy McIntosh, White Privilege and Male Privilege: A Personal Account of Coming to See Correpondences Through Work in Women's Studies 2 (Wellesley College Center for Research on Women Working Paper No. 189, 1988)). For a description of the various forms of advantage that have been, and continue to be, bestowed on whites in the United States by both public and private actors, see powell, supra note 22, at Part I.B.2.

n98 powell, supra note 56, at 892-94, 900-01 n.55 (explaining that defenders of racial hierarchy and white privilege have twisted civil rights language and concepts, most notably the call for colorblindness, and observing that most United States Supreme Court decisions incorporating the concept of colorblindness have perpetuated white privilege).

n99 770 F.2d 520 (5th Cir. 1985).

n100 Id. at 523.

n101 Id.

n102 Id. at 523 n.4.

n103 Id. at 523-24.

n104 Id. at 523.

n105 Id. at 524.

n106 Notwithstanding the test's inability to assess the current abilities or future performance of applicants, the employer explicitly acknowledged that "the test was a weighty selection factor." Id. at 523. In rendering its flawed decision, the court also noted that the test "was a very important factor in the selection process." Id.

n107 Id. at 526.

n108 Id. at 525, 528 n.8.

n109 Id.

n110 For a succinct expression of the interdependent and interactive relationship between privilege and subordination, see Grillo, supra note 1; Kerner Commission, supra note 60. See also Cheryl L. Harris, Whiteness as Property, 106 Harv. L. Rev. 1709, 1730-31 (1993) ("When the law recognizes, either explicitly or implicitly, the settled expectations of whites built on the privileges and benefits produced by white supremacy, it acknowledges and reinforces a property interest in whiteness that reproduces Black subordination ... .").

n111 See Chang, supra note 58; Flagg, supra note 23; Ruth Frankenberg, Whiteness and Americaness: Examining Constructions of Race, Culture, and Nation in White Women's Life Narratives, in Race 63 (Steven Gregory & Roger Sanjek eds., 1994); Mahoney, supra note 58, at 1665. See also powell, supra note 22, at Part I.B.3. (explaining how the virtual invisibility of racial hierarchy gives it its polarizing power and articulating the need for a transformative strategy to remove the aura of acceptability and permanence of racial inequality).

n112 See Michael Walzer, Spheres of Justice 31-79 (1983) (discussing the primacy of membership to equality and liberty). See also Chang, supra note 58 (discussing the importance of political and legal participation to the realization of meaningful equality).

n113 See generally Frankenberg, supra note 111; Iris Marion Young, Justice and the Politics of Difference (1990). See also Mahoney, supra note 58.