Vol. 14 No. 1 (January 2004)

PERVASIVE PREJUDICE? UNCONVENTIONAL EVIDENCE OF RACE AND GENDER DISCRIMINATION, by Ian Ayres. Chicago: The University of Chicago Press, 2001. 434pp. Cloth $40.00 ISBN: 0-226-03351-1. Paper $27.50 ISBN 0-226-03353-8.

Reviewed by Caren G. Dubnoff, Department of Political Science, College of the Holy Cross. Email: cdubnoff@holycross.edu .

PERVASIVE PREJUDICE? UNCONVENTIONAL EVIDENCE OF RACE AND GENDER DISCRIMINATION is primarily a book about racial discrimination and only tangentially about gender. It challenges what has become the increasingly prevalent view of white Americans that discrimination against African Americans is largely a thing of the past. Many whites believe that race is no longer an impediment to success, or if it is, it is one more often faced by whites as a result of race-based programs that advantage African Americans. According to this view, class is a far more significant determinant of one's chances and experience. If race continues to be important in our thinking, it is the fault of race-based programs such as gerrymandering along racial lines and affirmative action in employment and in admissions to higher education. This is a view that is shared by many in the political elites, including members of the current Supreme Court. Most African Americans have a very different perspective. Discrimination is a daily fact of life in shopping, in getting a taxi, in the quality of schools African American children attend, in the aspirations they have. And it is anything but trivial.

This book seeks to document that what African Americans experience is real and important. Ian Ayres argues that discrimination against people of color, and to a lesser extent against women, continues to be a significant feature of American reality. His is not the usual claim that the residual effects of past discrimination make it more difficult for African Americans to compete, but rather that active discrimination continues, as do the disadvantages brought about from the disparate impact of seemingly neutral policies. His argument is developed by exploring the consequences of race and gender in the automobile retail market, in the distribution of kidneys for transplantation and in the setting of bail. These types of settings are not generally given much attention in the scholarly literature because of the "idea that gender discrimination in the retail sale of goods is non existent or unimportant" (p.4), a position his work also challenges.

Ayres clearly establishes that African Americans, and to a lesser extent women, are disadvantaged by prevailing practices and policies. African Americans pay more for comparable cars than do whites. African American women pay more than African American men. White women pay less than African Americans, but at least in Chicago pay more than white men. African Americans have a harder time obtaining needed kidney transplants. And judges set higher bail for African Americans than for whites, though this disadvantage is at least partially offset by favorable treatment from bail bondsmen, who offer African Americans lower rates than whites receive. The perception of many African Americans that they continue to be treated unequally is thus supported by Ayres' empirical data.

But is this evidence of discrimination? And if it is, is government intervention the appropriate response? The case that this inequality is the result of unfair treatment, in the sense that race and gender animus provided the basis of societal practice and that the market did little to prevent it, is most clearly developed in the four chapters of Part I addressing discrimination in retail car sales. It is also the only one of the studies in which Ayres makes a case for the existence of unlawful behavior. Chapter 2, the first chapter of this section, was written with Peter Siegelman and examines the Chicago retail car market. Some of the material presented here is not new, and is based on two studies, a pilot study conducted in 1989, and a more extensive study conducted the following year. Using testers paired for their similarities except for race and gender, and trained to follow identical negotiating strategies, Ayres and Siegelman compare various aspects of car retail transactions at a variety of dealerships in urban and suburban Chicago. They look at initial offers, the negotiation experience, time spent, and final offers. They find that African Americans, and to some extent women, were afforded different and less favorable treatment than were white males. Although some scholars have criticized aspects of these studies, the findings were confirmed by later evidence reported in Chapter 4 from actual sales in an Atlanta dealership that was itself the subject of a discrimination suit.

The demonstration of unequal treatment does not explain the reasons for such differences, which would be important in the selection of an appropriate remedy. Ayres identifies four possible seller motivations: "associational animus," the cost paid by associating with someone one considers undesirable; "consequential animus," a desire to disadvantage certain buyer types; "cost-based statistical discrimination," a perception that serving minorities or women costs more; and "revenue-based statistical discrimination," a profit-motive rationale based on an assessment that the buyer will pay more. Whether or not there is animus, either a distaste for associating with people of color or with women, or a desire to disadvantage them, is an important issue in the assessment of discrimination, since disparate treatment based on race and traceable to animus is potentially actionable under prevailing civil rights law. But as Ayres' work shows, it is difficult to establish whether a disparate result is truly due to animus. Ayres believes it does play a significant role, but admits, "it may prove impossible to parse out the various elements of animus and rational inferences from irrational stereotypes" (p.64).

Ayres also seeks to explain how price discrimination can persist in a competitive economic marketplace. He contends that the market is imperfect in that the buyer often lacks sufficient knowledge or sufficient choice to protect against discrimination. This was certainly the case for African Americans who lived in Chicago. African Americans could avoid discrimination by shopping at dealerships in urban Chicago, but prices there were higher for all buyers than at suburban dealerships that discriminated.

This section concludes with an examination of the legal implications. Ayres claims that his data are sufficient to demonstrate "unlawful discrimination under both the civil rights and consumer protection laws" (p.126), but concludes that legal action under present law is too costly and therefore does not provide a particularly effective remedy and though he urges some legal reforms, seems to acknowledge that ultimately the market may provide the best remedy. "The rise of the Internet and 'no haggle' dealerships may be enough by themselves to reduce prospectively the opportunities for race discrimination" (p.126).

In Parts II and III, Ayres looks at two policies-kidney transplants and the setting of bail in New Haven, Connecticut-that he sees as neutral on their face but having disparate impacts. The bail study is the only one that has much to do with potentially illegal discrimination. In fact Ayres seems more interested in using this analysis as a vehicle for developing a methodology for the assessment of discrimination. Ayres finds that judges repeatedly require higher levels of bail for nonwhite defendants than for comparable white defendants. This disparate treatment is offset somewhat by the lower charges offered nonwhite compared to white defendants in the bail bond market. Ayres argues that the secondary bail bond market provides evidence that the judicial setting of disparate bail was unjustified. Bail bondsmen, who forfeit money in the event of nonappearance, would be reluctant to offer bond to individuals who are likely to flee before the trial. The argument depends on at least two assumptions, first that the purpose of bail is to assure the appearance of the defendant at trial, and second that the "sample of defendants is representative of the underlying defendant population" (p.290). The facts revealed in the bail study invite questions about Ayres' characterization, or perhaps more generally about the distinctions drawn between disparate treatment and disparate impact. As in the case of the car sales, African Americans have to pay more than do similarly situated whites, so it is possible to see this as a case of unequal treatment rather than disparate impact, but absent proof that judges acted consciously on the basis of race, there is no evidence of illegal discrimination. And as Ayres admits, there may be a number of nondiscriminatory explanations as to why bail bondsmen offer African Americans lower fees than whites. If white defendants have more money than equivalent African American defendants, bondsmen might conclude that the affluent defendant who "would want to go to a bond dealer" is the one most likely to flee. Still Ayres contends that the results are sufficiently dramatic to suggest that race was an important factor in the setting of bail. He then speculates on possible judicial considerations. The judges may have been reluctant to release African American defendants because of bias among voters, but surprisingly, given his careful attention to empirical evidence in much of this book, Ayres offers no empirical support for this proposition. The legal implications of the data presented in this chapter are not pursued. Nevertheless drawing attention to the fact that bail is set higher for African Americans is itself important. It may promote a reevaluation by the judges, media attention and further assessments. The study illustrates the difficulty of proving discrimination where there is a mix of factors that determine action, a reality that has long complicated efforts to litigate civil rights claims.

The chapter on kidney transplants is quite fascinating, and I enjoyed reading it. It provides a very good discussion of what initially could have been characterized in the words of Guido Calabresi as a "tragic choice," where decisions must be made regarding who, given scarce resources and high costs, receives particular treatments. It is also a study that produced salubrious effects. It is not really however about discrimination, and arguably the racial disparity found would not have had a satisfactory remedy had the underlying clinical science not changed.

The facts presented are as follows. For those with kidney failure, kidney transplants are preferable to treatment by dialysis. There is a scarcity of kidneys for transplants, and the initial science suggested that the closer the match between the antigens of the donor and the recipient, the more likely the kidney would be accepted. For many years, kidneys were therefore allocated according to the compatibility level of the matches. This allocation mechanism, color-blind on its face, resulted in African Americans have a harder time getting kidney transplants because it was much harder to find good antigen matches for African American recipients. This was a consequence that was not initially given much attention. In the early stages of the transplants, it probably would have made little difference even if the racial disparity was widely publicized, since there would be little gain for African American patients in receiving a kidney that was likely to be rejected. However in more recent years several drugs have been developed that block the rejection response, making antigen matching less important. Ayres' research showed that while antigen profiles are important when very closely matched, they provide little added benefit otherwise when the newer drugs are used. Continuing to use antigen matching criteria as the only basis for allocation thus would have a devastating impact on the availability of functional kidneys for African Americans. Ayres' work actually produced a change in this policy.

Kidney transplant policy is an example of a policy that is neutral on its face, was adopted for legitimate policy reasons, and has been changed in response to research that demonstrated the effects of the policy on African-Americans. Ayres acknowledges that the issue would be more complicated if there continued to be a closer connection between antigen compatibility and successful transplantations.

Ayres' concluding chapter examines the effects affording women and minorities bidding preferences in the sales of sections of the radio spectrum. He finds that contrary to conventional wisdom, enhancing the market by providing minorities with subsidies and thus a chance to compete enhances government revenues by bidding up the price for stations. I found this chapter to be the least interesting largely because it seem so unrelated the rest of the material, and because it addressed an issue that is at best at the periphery of the debate regarding affirmative action, a debate which is much more about fairness than economics.

The book is thus ambitious in its scope and objectives. The sheer amount of new evidence it brings together, its command of very disparate literatures and debates make it an impressive piece of work and clearly worth reading. I think it would provide useful supplement to any course that focuses on racial discrimination.

Copyright 2004 by the author, Caren G. Dubnoff