Prevention perspectives on "different" kinds of discrimination: from attacking different "isms" to promoting acceptance in critical race theory, law and economics, and empirical research.

• Author: Freshman, Clark

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

It shall soon be no secret that Ian Ayres's collection of empirical evidence of discrimination in a wide range of "markets," and the new critical race theory (CRT) collection (1) are two of the best and most important books in publishing, academic or otherwise. But both are so engaging and beautifully written that many may fail to notice that neither a book seemingly about critical approaches to "race" nor one that promises evidence of "race" and "gender" discrimination is, really, about "race" or "gender." Before getting too detailed, consider first that the Ayres book includes several studies but only two of them look at women at all--and both conclude that women in general (2) don't face discrimination in either car sales or bail rates. (African-American women pay more for cars, and, by some complex measures, African-American women and Latinas probably (3) pay too much for bail. (4)) And likewise consider that one can't even get past the dedication to the reader in the CRT reader on "race" without the first of many announcements that one really can't look at unfairness involving race without looking at "other" ("interlocking") forms of discrimination. (5) As I've suggested elsewhere, this type of confusion is pervasive in everyday life, law, and social science: We get in the habit of seeing discrimination and prejudice as if they fit some fixed natural category like race or gender. (6) Like other efforts by Ayres and other CRT scholars, then, one might take simply a "second look" at this same issue. (7) In particular, one might look again at the updated works here about how one might prove discrimination in court, change statutes, and take other similar formal action.

Instead this Review looks at this question of categories from a prevention perspective: How does one prevent unfairness (be it "racism" or "sexism" or some other "ism") in the first place? Should employee training include specific information about stereotypes of specific groups or some version of general diversity training? Pairing CRT and Ayres with this prevention focus makes sense for many theoretical, historical, and quite pressing doctrinal reasons. From a theoretical perspective, the often-neglected focus on prevention gives us some room to sidestep other well-worn and often emotionally taxing debates. (8) Consider again the metaphor of "racism" as a "disease." (9) It's easy to get lost in sorting through similarities and differences in diagnosing different diseases and their different causes. Whatever value such distinction-making may have, it may not be necessary for prevention and treatment. Syphilis and strep throat come from very different sources, and yet the best treatment for both may often be exactly the same antibiotic. (10) Likewise something as simple as aspirin may tame headaches, relax sore muscles (whether sore from doing too many bench presses or sipping too much sherry), and even slow aging in general. (11) And prevention of many diseases in the first place may often rely on common "wellness" habits like eating less unhealthy fat, exercising, and so on. So, too, the best way to quiet prejudice and promote socially healthy attitudes of acceptance may rely on quite general approaches. This may make it less necessary to debate which particular diseases deserve the most attention. (12) As we'll see below, both much psychological science and much commercially available training suggest the best approach to combating prejudice will often be a large share of such general approaches to promote acceptance rather than narrower attacks on what might be seen as particular "isms." Also, using general prevention strategies may sometimes avoid the equivalent of painful diagnoses of physical illnesses: We may avoid painful debates, such as what "kind" of discrimination hurts the most, or whether the suffering of members of this or that group is enough like the suffering of African Americans to let them participate in meetings of critical race theory. (13) (Most of the papers in the CRT collection grew out of the Yale CRT meeting, the first large CRT meeting open to people of color as well as "whites." (14)) Of course, as with physical illnesses, general treatments may not always work best: Some diseases may respond better to specific treatments. And this may lead to competition for what can seem like scarce resources, for example, debates over funding for treating men's diseases like prostate cancer versus women's diseases like breast cancer. (15)

The CRT editors' response to this Review may also be understood to raise similar concerns: How much should we try to prevent the various contagions in our society from infecting individuals; how much should we prevent the infections from ripening into more discriminatory acts; and how much should we try to change society itself. The editors ask whether this Review's call for more prevention "ask[s] the subjects of history and current subordination to accept the basics of society as they are." (16) To use malaria as a metaphor, one could try to develop inoculations, one could try to treat those infected, or one could try to limit the existence of standing water so the bugs that carry malaria go away. The CRT response seems to favor more changes to society itself so the diseases do not arise. I suggest here only that we might spend more time preventing discrimination even while we may also work for other reforms.

From a historical point of view, many who want a more inclusive society need to look to some new perspectives--if not prevention--because older, once promising alternatives seem less viable. Courts and California-style popular initiatives formally limit affirmative action. (17) So, too, voter initiatives seek repeal of laws that add sexual orientation to other lists of forbidden discrimination. (18) In part, prevention deserves a serious look for the same reasons that many looked to state courts when federal courts seemed less open to civil rights claims.

Apart from these theoretical debates, and current political realities, the scope of prevention is quite simply a crucial--and recent--practical question. Under two relatively recent United States Supreme Court cases, organizations accused of discrimination can avoid any liability, or at least avoid punitive damages, by showing that they deployed programs to prevent discrimination. (19) This alone would give employers and others the incentive to overcome their fear that training itself might somehow create records that could lead to liability. Further pressure to seek out some kind of training--broad or narrow--comes from the recent decision by many insurers to stop offering coverage for discrimination. (20) Such decisions represent dangers, opportunities, and, as we'll see, newly pressing questions for both CRT and law and economics.

Others have sounded the alarm over the danger of the prevention wave clearly enough. In a word, it's a cover-up: Prevention may give license for "investigators" and others to script potential witnesses and paper the file. (21) On this take, for example, women who get frozen out of firefighting have to battle not just prejudice but choreographed witnesses to their supposed ineptitude and bulging files documenting "problems." This is a powerful critique, and it gives still another reason why this Review, and other efforts, need to probe closely exactly what type of prevention programs deserve development--and the blessing of courts.

The CRT editors' response raises more profound alarms. (22) Alarm one: Prejudicial attitudes and institutions already pervade society, and they have survived many assaults. Alarm two: These attitudes already infect us all. One may quibble about the degree of progress, but the central point is perhaps understated. From the prevailing psychological point of view, every individual, and every society--even the society that CRT would try to build-will include to some degree an automatic tendency to prefer some and overlook others. (23) (And many societies will often include hostility towards those who seem less like us, but this is less clearly inevitable.) The same is likely true of diseases in general: We will all get sick, and we will all die. Diseases are all around us, and we face numerous risks of infection and accidents daily. Indeed, the sources of our demise, like cancerous cells, may live deep within us. Still, every society can still strive to be well more often, and to be less ill when ill.

So, too, even if sources of prejudicial attitudes lay all around us, and within us, prevention efforts offer two hopes. First, just as doctors may work to strengthen our immune systems in general, we may construct societies, institutions, and programs that promote more inclusive attitudes and, perhaps, weaken prejudicial attitudes. We may all learn to be more comfortable, even happy, with those who seem somehow "different" at first. Second, just as doctors may work to limit the harm when diseases do arise, we may work to prevent our prejudicial attitudes from ripening into prejudicial action. Even if we still feel somewhat less comfortable with those who seem different, we may learn still to rent them housing, to let them into our schools, and to let them into our workplaces and boardrooms.

Others already recognize some of this potential. Some already note that effective prevention may lead to less discrimination in the first place. (24) Because there is so little law on just what qualifies as an effective prevention program, and so little data for employers to sort through to...