The elusive nature of discrimination.

• Author: Moran, Rachel F.

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.

1. 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 bail, he looks at disparate impact, that is, the differential effects of particular practices and policies. (3) In the affirmative action study, Ayres is not concerned with discrimination but with the tradeoffs between equity and revenue maximization when racial preferences are given. (4) What unifies these case studies, then, is not the definition of discrimination but the application of market theory and empirical methods.

   Ayres makes several key contributions in his analysis of discrimination and affirmative action. He offers important evidence on whether competitive markets correct discrimination, and he makes a promising start in reconsidering the notion of animus. In addition, he describes how statistical discrimination operates in distinct settings. Finally, he shows that affirmative action programs need not always act as a government subsidy that undermines revenue maximization. After reviewing these valuable insights, I will turn to a few limitations of the work. Ayres does not offer a satisfying theory of the market that explains the wide array of transactions that he studies. Tackling the intellectual project of defining the market would be a useful step in framing his future research. Moreover, there are constraints that inhere in Ayres's choice of quantitative, empirical analysis, some of which he himself acknowledges. These limitations are worth considering in evaluating how other methodologies can supplement Ayres's valuable analysis of discrimination.

   1. Competitive Markets as a Corrective for Discrimination

      Ayres demonstrates that competitive markets can sometimes entrench and sometimes alleviate bias. In the competitive world of automobile dealerships, racial discrimination is a persistent problem. Salespeople offer higher prices to women and blacks than they do to white males. Black males get the worst deals, but white women and black women also receive offers that significantly exceed those made to white men. (5) When it comes to bail bonds, though, the market can effectively correct discrimination. According to Ayres, in New Haven in 1990 judges consistently set higher bail for nonwhite defendants than for comparable white defendants. However, the competitive secondary market in bail bonds systematically countered these discriminatory practices by requiring lower bonds for black than for white defendants. (6)

      Needless to say, the market theorist as well as the race reformer would like to know why the market perpetuates bias in one setting and corrects it in the other. Unfortunately, Ayres offers no explanation for the divergent outcomes. One potentially important difference is that blacks and Hispanics were the primary consumers of bail bonds in New Haven, and they could have had prior experience or networks of information that enabled them to act as sophisticated consumers. (7) By contrast, the car dealerships in Ayres's study overwhelmingly relied on white customers to meet their bottom line. In fact, only nine black-owned dealerships were among the 242 studied. (8) Although not statistically significant, dealerships in predominantly black neighborhoods did give black testers better final offers than they received in primarily white areas, according to Ayres. (9) At least preliminarily, this finding suggests that market responses to race can be shaped not only by the identity of the individual tester but also by the overall makeup of a merchant's clientele. If markets are racially segmented, a fiercely competitive market in car sales to white customers can perpetuate discrimination, while a small bail bond market that caters to a nonwhite clientele can correct it.

   2. Unpacking Animus

      In analyzing why racial discrimination occurs even in competitive markets, Ayres evaluates animus as one possible explanation. Rather than treat animus as an undifferentiated term, Ayres takes the valuable step of parsing the concept of racial distaste. In the retail car study, Ayres looks at associational and consequential animus. Associational animus is a desire to avoid contact with members of another race, while consequential animus is a desire to leave members of another race worse off than those of one's own race. (10) According to Ayres, salespeople give black males the worst deals on cars because they are motivated at least in part by consequential animus. By contrast, black and white women are quoted higher prices primarily because salespeople make rational assessments of their costs of bargaining and reservation prices. (11) As a result, women receive less favorable treatment than white men but far more favorable treatment than black males. (12) In the bail setting context, Ayres refers to voter animus in explaining why judges set bail differently based on race. Ayres posits that judges respond to the "Willie Horton" effect, a concern that voters will exact harsher punishments at the polls if minority defendants commit crimes while free on bail than if whites do. (13)

      Unpacking the concept of animus...