The Pursuit of Equality in Public Administration

• Date: 01 February 2004
• DOI: http://doi.org/10.1111/j.1540-6210.2004.00352.x
• Author: Kathryn A.L. Cheever
• Published date: 01 February 2004

118 Public Administration Review •January/February 2004, Vol. 64, No. 1

The Pursuit of Equality in Public Administration

Kathryn A.L. Cheever, The University of Memphis

Louis Kaplow and Steven Shavell, Fairness versus Welfare (Cambridge, MA:

Harvard University Press, 2002). 544 pp., $46.50 cloth, ISBN: 0-674-00622-4.

Samuel Leiter and William M. Leiter, Affirmative Action in Antidiscrimina-

tion Law and Policy: An Overview and Synthesis (Albany, NY: State Univer-

sity of New York Press, 2002). 322 pp., $29.95 paper, ISBN: 0-7914- 5510-6.

Stephen L. Ross and John Yinger, The Color of Credit: Mortgage Discrimi-

nation, Research Methodology, and Fair-Lending Enforcement (Cambridge,

MA: MIT Press, 2002). 459 pp., $39.95 cloth, ISBN: 0-262-18228-9.

Although the 50th anniversary of

Brown v. Board of Education and the

40th anniversary of the Civil Rights

Act will be observed this year, few

would argue that discrimination no

longer exists. Research as diverse as

The Boston Federal Reserve Study of

discrimination in mortgage lending,

the Housing Discrimination Studies of

1989 and 2000, and the study of em-

ployment discrimination complaint fil-

ings offer continuing evidence of both

disparate treatment and disparate im-

pact discrimination based on race, na-

tional origin, and gender.

The legal constructs of discrimina-

tion based on disparate treatment and

disparate impact form a unifying

theme in two of the three books cov-

ered by this review. Affirmative Action

in Antidiscrimination Law and Policy:

An Overview and Synthesis explains

that the common law theory of dispar-

ate treatment restricts legal liability to

cases of intentional discrimination

against specific individuals.

In The Color of Credit: Mortgage

Discrimination, Research Methodol-

ogy, and Fair-Lending Enforcement,

the authors point out that disparate

impact discrimination is said to exist

Kathryn A.L. Cheever is an assistant professor at The University of Memphis in the School of Urban Affairs and Public Policy Division

of Public and Nonprofit Administration. Her research has appeared in

Nonprofit and Voluntary Sector Quarterly

and the

International

Journal Organizational Theory and Behavior

. Her current research focuses on interagency collaboration in welfare reform, emergency

preparedness, and civil rights issues. E-mail: kcheever@memphis.edu.

if (1) a practice has a disparate impact

on a protected group and either (2) the

practice cannot be justified on the

grounds of a business necessity or (3)

the practice can be justified by busi-

ness necessity, but its disparate impact

can be avoided through the use of an

alternative policy that achieves the

same business objectives. Whether the

discrimination is based on disparate

treatment or disparate impact, human

potential is lost in continuing patterns

and practices of individual and insti-

tutional discrimination.

Offering an overview and synthe-

sis of affirmative action in antidis-

crimination law and policy, Leiter and

Leiter employ extensive casebook-

style excerpts of statutes and case law,

providing insights into the current state

of affirmative action law and practice.

The authors express concern that U.S.

policy may be backing away from the

goal of equal opportunity, let alone

equal achievement.

Also concerned about discrimina-

tion, Ross and Yinger challenge re-

searchers to improve their skills in fer-

reting out discrimination in mortgage

lending because there is ample reason

to believe that individuals are experi-

encing both disparate treatment and

disparate impact discrimination based

on race/ethnicity as they seek home

mortgage loans. Better tools must be

developed to counter arguments that

the treatment is not different; that

people of color simply have worse

credit histories, or fewer assets, or do

not meet any number of other mort-

gage underwriting criteria.

Fairness versus Welfare provides

another appeal to improve research.

Kaplow and Shavell state “our objec-

tive has been to convince legal policy

analysts to pursue a research agenda

focused on identifying which legal

rules best promote individuals’ well-

being, with due regard for the breath

of factors that may be relevant to well-

being and for the distribution of in-

come” (472). The authors contend that

as researchers evaluate any given le-

gal policy, a standard of welfare eco-

nomics that encompasses individual as

well as societal costs and benefits is a

more useful measure than fairness,

which more often addresses “what’s

right” rather than “what works” and

results in everyone being worse off.

Affirmative action policies and other

antidiscrimination laws would seem to