PRRAC publishes a Forum on Implicit Bias

The Poverty & Race Research Action Council dedicated its September/October 2011 newsletter to a thoughtful discussion of Implict Bias and its place  in modern anti-discrimination theory and public interest advocacy.  The back and forth among the authors is very helpful to those of us in the field who are struggling to find the best way to understand and incorporate this newly developing branch of cognitive science into our day to day practice of law.

The distinguished authors  include Stanford law professors Ralph Richard Banks and Richard Thompson Ford who posit that the unconscious bias discourse is as likely to subvert the goal of substantive racial justice as it is to open new opportunities for relief.   Their belief is based upon two assumptions.  First, that there is no way of knowing whether the Implicit Association Test  measures implicit bias or conscious but concealed bias.  Second, that a focus on implicit bias as a causal agent in discrimination deflects attention from the structural solutions necessary to address inequity in our society.  This argument echoes some voices from the larger civil rights community who are concerned that the  implicit bias context lets bad actors off the hook for their actions.

john powell, Professor of Law  at the Moritz College of Law at Ohio State University, and Rachel Godsil, the Eleanor Bontecou Professor of Law at Seton Hall Law School  respond to Ford and Banks arguing that the insights of cognitive science offer an important tool to practitioners seeking to … create a political space in which it is possible to first have a constructive dialogue about the continuing salience of race, then generate support for the policies necessary to address the role race continues to play, and …develop implementation measures that will allow these policies to achieve the sought-after outcomes. 

Eva Paterson President of the Equal Justice Society, argues that if we are to reach the goal of racial justice we cannot limit our arguments to the world of conscious bias.  She details the many cases in which the courts have already adopted implicit bias as a basis for its decision and argues that we must continue to assert arguments sounding in implicit bias to effectively address structural racism.

Andrew Grant Thomas , Deputy Director at the Kirwan Institute reviews the significant evidence that implicit bias as measured on the IAT correlates with discriminatory behavior.  Nevertheless, he suggests that we need a deeper understanding of the factors that shape the initial development of implicit bias before we fully understand its effectiveness as an advocacy tool.

Finally, Olatunde Johnson Associate Professor of Law at Columbia Law School offers a more hopeful look at the utility of implicit bias in the law and policy arena.

This issue of the PRRAC newsletter  is a must read for any advocate who wants a better understanding of implicit bias as a tool in public interest practice.