public safety

7 Social Equity, Law, and Research

Putting law with social equity research may seem an odd combination. The logic for putting them together traces to the specificity of both law and analysis. Issuesof fairness and equity tend to be specificto particular fields of public policy, issues of fairness and equity in public education, for example, being rather different than issues of fairness and equity in employment, housing, or taxation.The nature of this policyfield specificity i s essentiallythe same in the application of the law to social equity and in the application of analysis and research to social equity. Given the wide range of policy fields and uniqueness and specificity of each field, it is readily evident that the application of social equity to public administra­ tion is a vast and very complex body of informationand knowledge. The same could be said of applications of efficiency and economy to public administration. In a play on the political truism, "all politics is local," it could be said that "applications of law to matters of social equity are policy specific,'' and "applicationsof researchand analysis to social equity are policy specific.'' There are social equity generalizations,of course, but they tend to the abstract and philosophical. Law and research tend to policy specificity.

Both law and research in social equity are highly dynamic, changingas public opinion changes, as policychanges, as the interestsand preferences of research scholars change, and, most important, as events intervene. The legal and research aspects of social equity in public administration hold the promise of yielding influential findings on the subject.

In 1968 a theory of social equity was developed and put forward as the third pillar of public administration, with the same status as economy and efficiency as a value or principle to which public administration should adhere. Con­ siderable progress has been made in social equity in the past years. Theoreti­ cally, the works of Rawls and Rae and associates provide a language and a road map for understanding the complexity of the subject. The courts were especially supportive of principles of social equity in the later years of Chief

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Justice Earl Warren and during the years of Chief Justice Warren Burger. The period marked by the leadership first of Chief Justice William Rehnquist and then Chief Justice John Roberts evidences a significant drawing back from an earlier commitment to equity. The decisions of state courts, based upon state constitutions and the common law, hold considerable promise for advancing social equity principles. Scholarly research demonstrates the belief of the American people in fairness, justice, and equality and their recognition of the complexity of the subject and their ambivalence toward competing claims for equality. Research on public administration finds that bureaucratic decision rules and the processes of policy implementation tend to �avor principles of social equity.

Social Equity and the Law

Marshall Dimock made this dictum famous: “public administration is the law in action” (1980, 3 1). It should b e no surprise, then, that some of the most significant developments in social equity have their genesis in the law and the courts.” “Local, state and national legislators-and their counterparts in the executive branches-too often have ignored, abdicated or traded away their responsibilities. . . . By default, then, if for no other reason, the courts would often have the final say” (Haar and Fessler 1986, 18). The courts are the last resort for those claiming unequal treatment in either the protection of the law or the provision of service. Elected officials-both legislators and executives-are naturally inclined to the views and interests of the majority. Appointed officials-the public administrators-have until recent years been primarily concerned with efficiency and economy, although effectiveness was also an early concern, as noted by Dwight Waldo in The Administrative State (1949).

Employment

The most important legal influences resulting in more equitable government are in the field of employment, both public and nonpublic. The legal (not to mention administrative) questions are: who ought to be entitled to a job, what are the criteria, and how ought they to be applied?

The Civil Rights Act of 1964 as amended and the Equal Employment Act of 1972 were designed to guarantee equal access to public and private employment. This was done by a combination of block equalities (whereby persons in different racial categories could be compared, and if they were found subject to different treatment, a finding of violation of law would be made) and a means-equal opportunities logic (whereby fair measurements

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of talent, skill, and ability would determine who gets jobs). The landmark case was Griggs v. Duke Power Co. (1971), in which the U.S. Supreme Court held that j o b qualifications that were not relevant to a specificjob and that on their face favored whites over blacks were a violation of the law. The Court clearly rejected the idea of prospect equality, but because it upheld the idea of equality by blocks or, to use the words of the law, “protected groups,” a strong social equity signal was sent. Race-consciousness as an affirmative action was to be based upon equality between blacks and whites both in the work cohort and between the work cohort and the labor market-a kmd of double application of equality.

John Nalbandian, in a recent review of case law on affirmative action in employment, observed that cases subsequent to Griggs have systematically limited “affirmative action tightly within the scope of the problem it was supposed to solve” (1989,39). The case law has sought to limit negative ef­ fects, such as unwanted inequality befalling nonminorities as a result of these programs. The University of California Regents v. Bakke (1978) was the most celebrated example of judicial support for block equality to bring blacks up to an enrollment level equal to whites, while at the same time protecting a nonminority claimant who would likely have qualified for admission in the absence of a protected class.

The affirmative action laws, and the Court’s interpretations of them, have had a significanteffect on equalizing employment opportunities, first between minorities and nonminorities and more recently by gender (Ingraham and Rosenbloom 1989). Nalbandian predicts, however, that the values of social equity may decline in a shift toward a new balance in employment practices, giving greater emphasis to efficiency (1989,44).

Contracting

In the 1977 Public Works EmploymentAct, the national government established a minority-business-enterprise 10 percent set-aside, requiring that 10 percent of all public works contracts be reserved for firms owned by minorities. The 10-percent set-aside was tested and affirmed in Fullilove v. Klutznick (1980). U.S. Supreme Court Justice Thurgood Marshall, for the majority, said:

It is indisputable that Congress’ articulated purpose for enacting the set-aside provision was to remedy the present effects of past racial discrimination.. . .

Today, by upholding this race-conscious remedy, the Court accords Congress the authority to undertake the task of moving our society toward a state of meaningful equality of opportunity, not an abstract version of equality in

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which the effects of past discrimination would be forever frozen into our social fabric.

For the minority, Potter Stewart argued:

On its face,the minoritybusinessenterpriseprovisionat issue in this case denies the equal protection of the law. ...The fourteenthAmendmentwas adopted to ensure . . . that the law would honor no preference based on hneage.

Clearly, in this case, Marshall and Stewart use different domains and diverge on the issue of what is to be equal. To Marshall, block equality is essential, while to Stewart, individual equality is required. Finally, as to employment (in this case contracting) opportunities, Marshall prefers it to be prospect equality, while Stewart wants it to be means equality.

In a 1989 affirmation of the 10-percent set-aside provisions of the 1977 Federal Public Works Employment Act, the U.S. Supreme Court struck down a 30-percent set-aside for minority construction firms on contracts with the city of Richmond, Virginia. This was immediately regarded as a significant setback for the affirmative action programs of 33 states and over 200 munici­ palities. The Richmond decision reasoned that the Fourteenth Amendment was violated by the set-aside because it denied whites equal protection of the law (City of Richmond v. J.A. Croson Co. 1989). No doubt the set-aside provision has enhanced social equity. It is clear. however, that the law has used inequality to achieve equality.

Government Services

In 1968Andrew Hawkins, a black handyman living in a neighborhood called the Promised Land, an all-black section of Shaw, Mississippi, gathered sig­ nificant data to show that municipal services such as paved streets, sewers, and gutters were unequally distributed. Because these services were available in the white section of Shaw Hawkins charged that he and his class were deprived of the Fourteenth Amendment guarantee of equal protection of the law. The U.S. district court disagreed, saying that such a distribution had to do with issues of “municipal administration” that were “resolved at the ballot box” (Hawkinsv. Town of Shaw 1969). On appeal, the decision of the district court was overturned by the U.S. court of appeals, in part based on this amicus curiae brief from the Harvard-MIT Joint Center for Urban Studies:

’ . . . invidious discriminationin the qualitative and quantitative rendition of basic governmental services violates an unyielding principle . . . that a

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trial court may not permit a defendant local government to rebut substan­ tial statistical evidence of discrimination on the basis of race by entering a general disclaimer of illicit motive or by a loose and undocumented plea of administrativeconvenience.No such defense can be accepted as an adequate rebuttal of a prima facie case established by uncontroverted statistical evi­ dence of an overwhelming disparity in the level and kind of public services rendered to citizens who differ neither in terms of desire nor need, but only in the color of their skin. (Haar and Fessler 1986, 14)

While the appellate court ruled in Hawkins’s favor, it construed the issue of equal protection so narrowly as to all but preclude significant court inter­ vention in service allocation decisions where intent to discriminate cannot be conclusively demonstrated.

Education

Desegregation of public schools following Brown v. Board of Education has resulted in varied and creative ways to define and achieve equality. Busing, a means of achieving at least the appearance of block equality, has been pri­ marily from the inner city out. Magnet schools are an attempt to equalize the racial mix via busing in the other direction. Building schools at the margins of primarily white and primarily black (or Hispanic) neighborhoods preserves the concept of the neighborhood school while achieving integration. The major problem has been jurisdictional or, to use the language of equality, domain. The familiar inner-city, primarily nonwhite school district surrounded by suburban, primarily white school districts significantly limits the possible equalizing effects of Brown v. Board of Education. This is especially the case when wealth and tax base follow white movement to the suburbs. State courts have in many places interpreted the equality clauses of state constitutions to bring about greater equality. Beginning with Serrano v. Priest in California (1978), state equalization formulas for school funding have in many states required the augmentation of funding in poor districts. Ordinarily this is done on a dollar-per-student basis. This procedure broadens the domain of the issue to the state, and it is also a simple formula for individual equality. It does, of course, bring about this equality by race-based inequality.

From the point of view of competing concepts of equality, the Kansas City Missouri School District desegregation cases may be the most interest­ ing. After Brown v. Board of Education determined that separate but equal schooling was in fact unequal and unconstitutional, two questions remained. Was it sufficient for school districts and state departments of education to stop segregating? Or was it necessary to repair the damage done by a century

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of racially separate school systems? In United States v. Jefferson County Board of Education (1972) the court of appeals declared that school officials “have an affirmative duty under the Fourteenth Amendment to bring about an integrated unitary school system in which there are no Negro schools and no white schools-just schools. . . . In fulfilling this duty it is not enough for school authorities to offer Negro children the opportunity to attend formerly all-white schools. The necessity of overcoming the effects of the dual school system in this circuit requires integration of faculties, facilities and activities as well as students” (Green v. School Board 1968).

In Swann v. Charlotte-Mecklenburg Board of Education (1971), the U.S. Supreme Court stated that “the objective today remains to eliminate from the public schools all vestiges of state imposed segregation.”

Two conditions pertain in Kansas City, Missouri. First is a dual housing market that came about from an interaction between private and governmental parties in the real estate industry, resulting in racially segregated residential areas that are roughly mirrored by racially segregated schools. Originally segregated all-black schools are now schools of mostly black students and teachers. The eleven suburban school districts surrounding Kansas City have almost all white students and teachers.

In Jenkins v, State o j Missouri in 1984, the trial court under Judge Clark found the Kansas City Missouri School District and the state of Missouri li­ able for the unconstitutional segregation of the public schools. The problem, of course, was the remedy. It is one thing to identify inequality; it is another to achieve equality. The school district tried and failed to secure passage of tax levies and bond issues to comply with Judge Clark‘s order.

Following the Liddell case, Judge Clark ordered both tax increases and bond issuances to cover the remedies sought in 1986 (Liddell v. State of Missouri 1984). The court also held that 75 percent of the cost of the plan was allocated to the State of Missouri for funding. The appellate court sustained all of Judge Clark’s remedies with the exception of a 1.5-percent surcharge on incomes earned in Kansas City by nonresidents and instructed the stiitc arid the district to proceed with the remedies (State of Missouri v. Jenkins 1995).

If the majority of the citizens had turned down bond issues and had re­ fused higher taxation to enable the school district to meet its desegregation objectives, how could the judge justify imposing those taxes as a matter of law? He said,

a majority has no right to deny others the constitutionalguarantees to which they are entitled. This court, having found that vestiges of unconstitutional discrimination still exist in the KCMSD is not so callous as to accept the

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proposition that it is helpless to enforce a remedy to correct the past viola­ tions. . . . The court must weigh the constitutional rights of the taxpayers against the constitutional rights of the plaintiff students in this case. The court is of the opinion that the balance is clearly in favor of the students who are helpless without the aid of this court. (Jenkins v. State of Missouri 672 E Supp. 412 1984~).

From an equality point of view, there are several examples of competing concepts of fairness. First, with the individual definition of equality, each vote is equal to each other vote, and the majority wins in a representative democracy. The court here clearly said that a majority cannot vote away the constitutional rights of a minority to equal schooling. Second is the dimen­ sion of time or intergenerational equality.The century of inequality in schools for black children was to be remedied by a period of inequality toward non­ minorities to correct for the past. Third is the question of domain. To what extent should the issue be confined to one school district? Because schools are constitutionally established in the state of Missouri, Judge Clark concluded that the funding solutions for desegregation were ultimately the responsibility of the state. Indeed, Arthur A. Bensen 11, an attorney for the plaintiff, argued persuasively that it was fully within the authority of Judge Clark not only to impose either state- or area wide financing to solve school desegregation but also to reorganize the school districts to eliminate the vestiges of prior discrimination (Bensen 1985).The judge chose not to go that far. Many more examples of equality can be traced to the courts, includingequalizing funding for male and female student athletes in schools and colleges.

An especially interesting and relevant interpretation of the relationship between social equity and law as they have to do with public administration is provided by Charles M. Haar and Daniel W. Fessler. They suggest that the basis for equality in the law is less likely to be found in the U.S. Constitu­ tion and federal statutes and more likely to be found in state constitutions and statutes. “Recognizing the growing practical difficulties in relying on the equal protection clause, we assert the existence-the convincing and determinative presence-of a common law doctrine, the duty to serve, as an avenue of appeal that predates the federal Constitution” (1986, 43). More than 700 years before the Constitution, judge-made law in the England of Henry VI11 held that, “at a fundamental level of social organization, all per­ sons similarly situated in terms of need have an enforceable claim of equal, adequate and nondiscriminatory access to essential services; in addition this doctrine makes such legal access largely a governmentalresponsibility” (21). All monopolies-states, districts, utilities-are in the common law “clothed with a public interest” and obligated to the “doctrine of equal service.” If

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Haar and Fessler are right and if the state-based school funding equalization cases are illustrative, social equity will emerge at the grass roots rather than be imposed by the federal courts.

Social Equity and Analysis

Consequent with the development of theories of distributive justice and the law of equality has been the emergence of policy analysis. Over the past twenty- five years, many of America’s major universities have established schools of public policy that specialize in the interdisciplinary study of policy issues. In addition, many existing schools and departments of public administration have started to emphasize the policy analysis perspective. Virtually every policy field-health care, transportation, law enforcement, fire protection, housing, education, natural resources and the environment, national defense-is now the subject of regular review and analysis. Generalized scholarly journals as well as journals specializing in some policy fields are now available, and virtually every issue has articles dealing with some form of equity.

Both the ideological and methodological perspectives in policy analysis have been dominated by economics. Although governments are not markets, market-model applications are widely used in policy analysis. The logic is simple. If, in economic theory, both individuals and firms maximize their utilities, their citizens and government bureaus do the same. This perspective has been especially compatible with popular contemporary governmental ideas such as deregulation, privatization, school vouchers, public-private partnerships, cut-back management, and the minimalist or so-called night watchman view ofAmerican government. While the economic model has been a powerful influence on policy analysis, it has been tempered, especially in recent years, by use of measures of both general and individual well-being that are more compatible with governmental goals. Long-standing and powerful governmental concepts, such as justice, fairness, individual rights, and equal­ ity, are now being measured and used in analysis. Broad collective measures, the so-called social indicators, such as unemployment and homelessness, are now more often used in policy analysis. Measurements of variations in the distribution of public services by age, race, gender, income, and the like are relatively routine. Social equity concepts are used not only as theory or as legal standards but as measures or variables in research. The problem, of course, in social equity analysis, as in the use of social equity in law or theory, is the compound character of equality.

At the level of the individual, data and findings are now available that map, in a rudimentary way, personal views and preferences regarding equality. Jen­ nifer Hochschield ( 1981) has determined that people have contradictory views

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of equality, which are not determined so much by income level or political ideology as by more subtle distinctions. People have varied opinions about equality depending on what domain of life is being considered and how equal­ ity is being defined. Using three different domains-social (including home, family, school, and community), economic (including jobs, wages, taxes, and wealth), and political (including voting, representation, and law)-and two conceptions of equality-first, equal shares and equal procedures, and second, differentiation (a combination of segmented equality and means-based equal­ ity of opportunity)-Hochschield’s findings are as follows.

In the social domain, people hold strongly to norms of equal shares and equal procedures. Equal treatment of children, one spouse, equal sacrifice for the family, and equal treatment in the neighborhood mark the general views of the poor, the middle class, and the rich. In schools, equal or fair procedures are important to just determination of grades. Families tend to move somewhat away from strict individual equality in schools toward a differentiation based upon investment, such as the handicapped child’s needing more, an example of Rawlsian justice. And there is evidence of a differentiation of investment for the more gifted or those with greater potential. People are not, however, equally happy with the egalitarian character of social life. If they feel they have some control over their fate and are able to act on the principles of equality, they are happier. If not, they are bitter and unhappy.

These same people endorse differentiation or means-based equality i n the economic domain. People, in other words, want an equal chance to become unequal. Productivity should be rewarded; the poor feel this would produce more equal incomes, while the rich believe it would result in less equal incomes. Private property is deeply supported. Accumulated wealth is not generally opposed by poor or rich, and both strongly oppose inheritance taxes. And both partially abandon their different views when it comes to poverty, feeling that “something should be done.”

In the political domain, thesepeople are egalitarian again. Political and civil rights should be distributed equally to all. “They want tax and social welfare policies mainly to rake from the rich and give to the poor and middle classes. Their vision of utopia always includes more equality . . .” (Hochschield 1981, 181). There is deep resentment over perceived unfairness resulting from loop­ holes in the graduated income tax because it treats people unequally. Many people endorse tuition subsidies for the poor, housing subsidies, and even a national health insurance.

Yet, with all of this, Hochschield found ambivalence. People recognize that their views are sometimes inconsistent or that they are confused. And there is some helplessness and anger over whom to blame for inequality or how to make things better.

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As the different domains of people’s lives best explain how they feel about equality, they also generally conform to the compound conception of social equity set out in Chapter 3 . Both in the theoretical model and in people’s outlooks, equality splits into equalities depending on domains, dimensions of time, jurisdictions, abilities, effort, and luck.

Field research on the distribution of local government service is filled with implications for social equity and public administration. Much of this research tests the “underclass hypothesis.” If one accepts that hypothesis, it follows that the distribution of libraries, parks, fire protection, water, sewers, policy protection, and education services follows power, wealth, and racial varia­ tions. The findings of research on municipal services generally indicate that the underclass hypothesis does not hold (Lineberry 1977). Fixed services such as parks and libraries exhibit “unpatterned inequalities” that are not correlated with power, wealth, or race. These inequalities are more a function of the age of the neighborhood and the condition of housing. Mobile services such as police and fire protection tend to be distributed relatively equally, and such variation as can be determined is not associated with race or wealth. On the burden side, evidence indicates that property tax assessments are unequal in the direction of lower proportionate assessments for minorities and the poor and higher proportionate assessments for the rich and the white (Lineberry 1977).

Both interdistrict and intradistrict school funding variations have tended, on the other hand, to confirm the underclass hypothesis. In the past thirty years, primarily as a result of court cases, more than half of the states have undertaken school-finance reforms designed to equalize funding between schools within districts or between districts. When compared to states with­ out school-finance reforms, the reform states now evidence greater equity in per-student funding (Stiefel and Berne 1981).

Why has the underclass hypothesis not been demonstrated in field research, except in the case of schools? Robert Lineberry and others arguc persuasively that urban and state bureaucracies, following patterned decision rules or service delivery rules, have distributed public services in such a way as to ameliorate the effects of poverty and race. The effects of municipal reform, including city managers, merit-based bureaucracies, at-large elections, non­ partisan elections, and the like, have strengthened the public services at the local level. The public services are routinized, patterned, incremental, and predictable, following understood or accepted decision rules or service deliv­ ery rules. Police and fire rules require decentralization and wide discretion in deployment of staff and equipment. Social services tend to respond to stated demands. Each service has some basis for its service delivery rules (Lineberry 1977; Jones, Greenberg, Kaufman, and Drew 1978).

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What is most significant here is that it is bureaucracy, professional public administration, particularly in larger cities, that distributes public services ei­ ther generally equally or in the direction of those especially in need. The point is that public administration understands and practices social equity. Social equity is understood or given, in the same way as efficiency or economy, in general public administration practice.

What explains school funding inequities? School bureaucracies have virtually no control over interdistrict funding levels. What explains Shaw, Mississippi, and other glaring examples of race-based service inequity? Often it is the lack of a genuinely professional public service.

Conclusions

While the more abstract theories of distributive justice were found to be intellectually challenging, the theories that hold the most promise for both empirical verification and practical application to social equity and public ad­ ministration are those that dissect the subject and illuminate the complexity of equality as an idea and a guide. That theory, coupled with the methodological tools of policy analysts, facilitates examination of the distribution of burdens and benefits so as to make informed decisions that are fair. Legally, equality issues probably reached their zenith in the latter stages of the Warren Court. The Burger, Rehnquist, and Roberts courts have narrowed the emphasis on affirmative action, equity in service distribution, and the like.

For social equity to be a standard for policy judgment and public ac­ tion, analysis must move from equality to equalities and equity to equities. A compound theory of social equity that details alternative and sometimes competing forms of equality will serve to better inform the practice of public administration. It will always be the task of public servants to balance the needs for efficiency, economy, and social equity-but there can be no balance if public bervanis undersrand only the complexities of economy and efficiency but cannot plumb the details of fairness and equality.

A nascent theory is presented here. A fully developed compound theory of social equity and public administration is the theoretical and research objec­ tive. Such a theory needs to be parsed by policy field and informed by the effects of federalism. It must define, if not predict, the effects of alternative policies, organizational structures, and management styles on the equity of public programs.

It is a great irony of these times that all of this has occurred during a pe­ riod referred to as the “age of the new individualism” or the “age of narcis­ sism” (Lasch 1978). The dominant political ethos has been pro-business and antigovernment, antitax, antiwelfare, and particularly antibureaucracy. This

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ideological consensus seems to indicate that the majority share this ethos. Yet, under the surface of majoritarian consensus, one sees a significant adjustment of the workforce from primary production to information and service at net lower wages, a sharp increase in two-worker families, a profound discon­ tinuity in income and ability to acquire housing, transportation, and food, an increase in homelessness, and an increase in poverty (Levy 1987). Thus, w h l e social equity has undergone deve!opment as a theory-and while public administrators have, following a social equity ethic, ameliorated the effects of inequality-still inequality has increased as a fact (Wilson 1987).

Most important in these conclusions is the research that indicates that public administration tends to practice social equity, which is no surprise to those who are in public management at the local level. Public administrators solve problems, ameliorate inequalities, exercise judgment in service allocation matters, and use discretion in the application of generalized policy. Fairness and equity have always been common-sense guides for action. Some are con­ cerned that this seems to put bureaucracy in a political role (Hero 1986). No doubt exists that public administration is a form of politics. The issue is, what theories and beliefs guide public administrators’ actions? As it has evolved, social equity has served to order the understanding of public administration and to inform the judgment necessary to be both effective and fair.