Extract
The elusive nature of discrimination.
PERVASIVE PREJUDICE? UNCONVENTIONAL EVIDENCE OF RACE AND GENDER DISCRIMINATION. By Ian Ayres. ** Chicago: University of Chicago Press, 2001. 433 pp. + xi.
CROSSROADS, DIRECTIONS, AND A NEW CRITICAL RACE THEORY. Edited by Francisco Valdes, ([dagger]) Jerome McCristal Culp ([double dagger]) & Angela P. Harris. ([section]) Philadelphia: Temple University Press, 2002. 414 pp. + xxi. INTRODUCTION After completing Pervasive Prejudice?: Unconventional Evidence of Race and Gender Discrimination by lan Ayres and Crossroads, Directions, and a New Critical Race Theory edited by Francisco Valdes, Jerome McCristal Culp, and Angela P. Harris, I was left with a haunting question: How could I have read over 800 pages on the subject of discrimination and still not know what discrimination means? Surely, my bafflement could not be the result of inattention. I had pored over each book and appreciated the key contributions that each made. Yet, even after a careful reading, I emerged confused and uncertain because the two volumes conceptualize problems of race and equality in such distinct ways. Ayres's work fits squarely within the tradition of evaluating whether discrimination persists in the marketplace. His innovation is to move beyond employment and housing to examine a wide array of transactions. After conducting his empirical studies, he concludes that animus remains an important explanation for racial inequality. The Crossroads reader draws on the oppositional insights of critical race theory. In contrast to Ayres, critical race theorists presume that discrimination is widespread and then explore the mechanisms that perpetuate and entrench racial disparities. These scholars question the emphasis on animus and examine race's ubiquitous impact not just in the marketplace but throughout public and private life. Pervasive Prejudice and the Crossroads reader highlight the divergent perspectives of law and economics on the one hand and critical race theory on the other. Unlike Ayres, however, many economists believe that racial animus is declining, so that other explanations must be found for the persistence of discrimination. Market theorists have turned to statistical discrimination and social networks to account for continuing racial disparities. Statistical discrimination presumes that in some instances, people can rationally rely on race as a proxy for other traits, such as skills and training. This approach raises serious questions about the legitimacy of disparate impact tests and accommodation requirements that interfere with purportedly rational decisionmaking. Social network analysis posits that informal contacts confer significant advantages in the marketplace. This work in turn raises the possibility that affirmative action programs can be used to equalize access to social capital. In contrast to law and economics, critical race theory has concerned itself with how race is constructed through unconscious bias and institutional structures. Race scholars do not presume that rational choice is the sine qua non of human behavior. Instead, they try to unpack the reflexive habits and hidden assumptions that guide racial judgments. Rather than worry about whether statistical discrimination is rational, critical race theorists question whether it is just. In analyzing how privilege is perpetuated, race scholars see social networks as only one example of the patterns and practices that entrench inequality. As a result, race theory has moved well beyond the marketplace to explore how everything from public bureaucracies to family life can make racial difference seem both natural and inevitable. Here, I hope to clarify the assumptions made in law and economics and critical race theory, show how both disciplines can benefit from paying careful attention to the other, and explore how the two fields generate different doctrinal dilemmas and policy puzzles. In the end, I do not attempt to offer a unifying conception of current research on race and inequality. Instead, I suggest that the elusive nature of discrimination is an intractable and ironic legacy of civil rights reforms. As Pervasive Prejudice and the Crossroads reader illustrate, the quest for equal opportunity has both complicated the meaning of race and enabled scholars to imagine new racial utopias. I. IS PREJUDICE PERVASIVE? AN EMPIRICAL ASSESSMENT OF DISCRIMINATION Ayres's book collects previously published case studies on discrimination in the retail pricing of cars, the distribution of kidneys for transplants, and the setting of bail for criminal defendants. The book also includes a study on affirmative action by the Federal Communications Commission (FCC) in the auction of radio licenses. (1) Ayres relies on two legal definitions of discrimination in his studies. In the analysis of retail car pricing, he focuses on disparate treatment, that is, the role of intentional discrimination, (2) while in his exploration of kidney transplants and bai...See the full content of this document
Sponsored links
