Taking measures.

• Author: Haynes, Kevin
• Position: Symposium on 'Pervasive Prejudice?' by Ian Ayres and 'Crossroads, Directions, and a New Critical Race Theory' by Francisco Valdes, Jerome McCristal Culp and Angela P. Harris

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.

While shopping in Soho at Christmastime in 1986, Patricia Williams saw a sweater in a Benetton store window that she wanted to buy as a present for her mother. Like the doors of many Manhattan stores at the time, Benetton's was locked. A buzzer system allowed "desirables" in and kept "undesirables" out. It was to prevent robberies (or so stores like Benetton claimed). As Williams recounts,

I pressed my round brown face to the window and my finger to the buzzer, seeking admittance. A narrow-eyed, white teenager wearing running shoes and feasting on bubble gum glared out, evaluating me for signs that would pit me against the limits of his social understanding. After about five seconds, he mouthed "We're closed," and blew pink rubber at me. It was two Saturdays before Christmas, at one o'clock in the afternoon; there were several white people in the store who appeared to be shopping for things for their mothers. (1) Williams was both "enraged" and "humiliated" by what happened. The salesclerk's refusal to let her in was for Williams "an outward manifestation of his never having let someone like me into the realm of his reality. He had no compassion, no remorse, no reference to me." (2) More daunting still was the clerk's refusal to acknowledge Williams "even at the estranged level of arm's-length transactor. He saw me only as one who would take his money and therefore could not conceive that I was there to give him money." (3) Williams could think of herself in the abstract as an arm's-length transactor because the market formally offers this abstraction to everyone. This abstract way of thinking about ourselves in America is so powerful, and seems so universally available, that it humiliates us that someone can--and enrages us when someone does--deny our access to it.

But as cultural theorist Robyn Wiegman explains, "the abstraction necessary for replacing the historically located body with a national identity"--American citizen, arm's-length transactor--while theoretically available to everyone, has never been the equal privilege of all. (4) So it was possible for the Benetton salesclerk to see Williams as markedly other than an abstract arm's-length transactor because American culture overdetermines her as black, just as it does the countless other black Americans it casts, according to Regina Austin, as "potential shoplifters, thieves, or deadbeats" (5) whenever we try to enter retail markets on an equal footing with whites. "There can hardly be a black person in urban America," Austin concludes, "who has not been denied entry to a store, closely watched, snubbed, questioned about her or his ability to pay for an item, or stopped and detained for shoplifting." (6) And yet this experience of discrimination so familiar to most black Americans too often gets written off as "unverifiable" personal experience. Witness the efforts of law review editors to delete all reference to Williams's fury at being the victim of discrimination, to Benetton as its perpetrator, even to her race itself, from her story. (7)

Though Williams has the burden of proving the discrimination she suffered at Benetton, the (it seems only) acceptable proof--for Williams, "nothing less than the testimony of the salesman actually confessing yes yes I am a racist" (8)--is of course beyond her (and likely even the salesman's) power to produce. But it is well within Ian Ayres's, in Pervasive Prejudice? Uncommon Evidence of Race and Gender Discrimination, to produce strong evidence of race and gender discrimination in retail markets. Black self-knowledge like Williams's of such discrimination might give blacks "a better inkling than whites about the degree of disparate treatment occurring in particular retail markets," (9) yet inklings hardly count as evidence for Ayres.

People of color have better insights into what is and what is not normal service and hence are better attuned to the possibility of race discrimination. But knowledge about how other similarly situated people are treated is a crucial barrier to learning whether (and the extent to which) discrimination exists. (10) Insights and inklings are about possibilities of discrimination; they do not, under Ayres's assessment, constitute knowledge of it. (11) Whether or not prejudice is pervasive across retail markets in the United States can only be known by "amassing evidence from hundreds of different product or service markets" to "demonstrate empirically that race or gender discrimination occurs in a wide range of markets" (12)

With Ayres's in-depth study and findings of race and gender discrimination in retail car sales, the massive data-gathering project he calls for in Pervasive Prejudice? is off to an impressive start. Ayres and his research partners found that Chicagoland car dealerships demand from black women more than twice the markup they seek from white men ($864 versus $418) and from black men four times that amount ($1,550). (13) And if these findings are "representative of a larger phenomenon," they are, as Ayres writes, "truly astounding." (14) Even so they can't tell us whether or not prejudice is pervasive in America across retail markets generally. "The book's title," its author notes, "is not meant to imply that race and gender discrimination pervades all aspects of market behavior, but instead is meant to indicate that discrimination may occur in a wide range of retail markets." (15) And yet what remains a question for Ayres--Pervasive Prejudice?--is for millions of black Americans no question at all. Black Americans overwhelmingly believe that race discrimination is pervasive in the United States. Only nine percent of black Americans surveyed in a recent Gallup poll think that blacks are treated as well as whites in this country. (16) But our self-evidence will not stand up in any court of law, or even, it seems, in the court of public opinion, in part because "minority consumers have imperfect information about how their white counterparts are treated." (17) What black America locked outside of retail markets gleans from looking in on white America happily going about its Christmas shopping is not enough.

Because black self-evidence of discrimination counts for very little, Pervasive Prejudice? makes white America the key register of whether or not prejudice pervades U.S. retail markets. Naturally, in the car sales study "white male results provide a benchmark against which to measure the disparate treatment of the other (nonwhite, nonmale) testers." (18) More significant is the centrality of white America to Ayres's analysis generally: first, in his focus on disparate treatment, and consequently on race discrimination's causes, rather than on disparate impact, which foregrounds its effects; and second, in his concern for convincing whites (again, most blacks already are) that race discrimination is pervasive across retail markets in the United States. In neither case will what black America knows about race discrimination count for much. While Ayres admits "a strong preference for quantitative evidence of discrimination," he acknowledges how hidden-camera video images of disparate treatment airing on ABC's PrimeTime Live "have had a greater impact on just those people who wrongly think that disparate racial treatment is a thing of the past" than his widely reported car study might have had alone. (19) Thus for Ayres "[p]ictures and numbers are the key to convincing whites that unjustified race-contingent behavior persists in the modern marketplace." (20) Together, I suppose, pictures and numbers can prove to whites that prejudice persists by making it visible to them. But insofar as "the visible has a long, contested, and highly contradictory role as the primary vehicle of making race 'real' in the United States," (21) as Robyn Wiegman reminds us, we can anticipate problems with Ayres's reliance on them to convince white America that discrimination in retail markets still persists.

When Time magazine ran on its cover the mug-shot photo of O.J. Simpson following his arrest for the murders of his ex-wife Nicole Brown Simpson and her friend Ronald Goldman, it darkened Simpson's face in what many took for a racist attempt to make Simpson look guilty. (22) It seems hard not to reach this conclusion given Time editor James Gaines's "apologizing" the next week that "[i]f there was anything wrong with the cover, in my view, it was that it was not immediately apparent that this was a photo-illustration rather than an unaltered photograph," (23) suggesting that conspicuously darkening the photograph to illustrate something sinister in the O.J. Simpson case would have been okay. Time's darkening of the photograph may only have come to light because Newsweek's cover that same week reproduced the mug shot unaltered, and with the magazines displayed side-by-side on newsstands, Time's alteration was hard to miss. (24)

Though numbers, especially statistics, come across as...