Tagged: Implicit Bias

PRRAC publishes a Forum on Implicit Bias

October 11, 2011 | Bill Kennedy | Tags: ,

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.

 

 

Research Grant Approvals- Evidence of Implicit Bias?

August 29, 2011 | rrabovsky | Tags: ,

According to a recent study, a research grant application from an African-American scientist to the National Institutes of Health is significantly less likely to win approval than one from a white scientist.  The study, led by Donna K. Ginther, a professor of economics at the University of Kansas, found that an African-American scientist was one-third less likely than a white scientist to get a research project financed.  The study also found that members of other races and ethnic groups generally do not face the same predicament.

A New York Times article discussing the findings notes that the cause of this disparity is probably implicit bias, as opposed to overt racism, as the grant reviewers are “ likely to give the benefit of the doubt to someone they are familiar with, and with black researchers tending to keep a low profile in the scientific world.”   The study, which was recently published in the journal Science, is a telling example of how implicit bias hurts African-Americans trying to enter a potentially lucrative field from which they have been historically shut out.

Implicit Bias Resources from the Equal Justice Society

May 5, 2011 | Maya Roy | Tags: , ,

The Equal Justice Society has compiled a packet of resources to make implicit bias literature more accessible to practitioners.  I highly recommend reading through it, as it provides incredible insight into how we as advocates can integrate implicit bias research into our discrimination cases to circumvent the intent requirement announced in Washington v. Davis.

For more information, here is the description of the materials from the Equal Justice Society’s website:

The Equal Justice Society compiled a packet designed to provide scholars and practitioners a starting point in understanding and engaging the evolving scholarship and jurisprudence around implicit bias and the Intent Doctrine. The information in the packet serves as a point of departure from current anti-discrimination jurisprudence, which largely fails to address contemporary manifestations of discrimination and exclusion.

Modern forms of racial and other discrimination are frequently expressed through biases that are unconscious or ?implied? through stereotypes and cognitive reactions. Extensive empirical and theoretical research confirms that implicit bias substantially motivates disproportionate outcomes even absent an express intent to discriminate. The Equal Justice Society seeks to update anti-discrimination law so that it more accurately accounts for and remedies contemporary discrimination.

Our hope is that this packet will be a starting point of engagement for you, the reader. It contains publications authored by EJS and other scholars and advocates who are experts in their respective fields. We are happy to furnish you with further, and more detailed, information upon request, and/or connect you with experts in the field.

The Impact of Ashcroft v. Iqbal on Race Discrimination Cases

April 4, 2011 | Maya Roy | Tags: ,

In “Beyond Common Sense: A Social-Psychological Study of Iqbal’s Effect on Claims of Race Discrimination”, Victor D. Quintanilla, a staff law clerk for the Seventh Circuit Court of Appeals, evaluates the impact of the Supreme Court’s decision in Ashcroft v. Iqbal on cases alleging race discrimination.  The paper, forthcoming in the Michigan Journal of Race and Law, evaluates the role bias plays in judicial decision making when judges determine whether or not claims are plausible under the Iqbal standard.  The article provides evidence from social science which undermines some of the premises of Iqbal relating to judicial decision making.

The article’s Abstract provides more detailed information:

This article examines the U.S. Supreme Court’s decision Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) from a social-psychological perspective, and empirically studies Iqbal’s disparate effect on claims of race discrimination.

In Twombly and then Iqbal, the Court recast Rule 8 into a plausibility standard. Under Iqbal, federal judges must evaluate whether each complaint contains sufficient factual matter “to state a claim to relief that is plausible on its face.” When doing so, Iqbal requires judges to draw on their “judicial experience and common sense.” Courts apply Iqbal at the pleading stage, before evidence has been presented, when judging the plausibility of all claims, including claims of discrimination by members of stereotyped groups.

Decades of social-psychological research suggest that, when judges deliberate on the plausibility of discrimination claims without evidence based on “common sense,” intuitions, stereotypes and implicit associations will likely affect their judgment. This article draws on this science and performs an empirical study showing that Iqbal has significantly increased the dismissal rate of Black plaintiffs’ claims of race discrimination in the workplace.

A statistical analysis of 212 cases examined judicial decision making at the pleading stage for Black plaintiffs’ claims of race discrimination in the workplace. Three studies demonstrate that the underpinnings of Iqbal are unsound. Study 1 shows that the dismissal rate increased from 20.0% pre-Twombly to 54.6% under Iqbal for these claims. Study 2 shows that the dismissal rate increased from 32.0% to 67.35% under Iqbal for these claims when Black plaintiffs were pro se. And finally, Study 3 shows that White and Black judges are applying Iqbal differently. White judges dismiss these claims at a higher rate (57.4%) than Black judges (28.6%). Study 3 suggests that it is 2.0 times more likely that a White judge, compared to a Black judge, will dismiss these claims.

In short, Iqbal rests on an inaccurate theory of judgment and decision making. As Roscoe Pound once observed there are, “distinctions between law in the books and law in action, . . . between legal theory and judicial administration. . .” It is hoped that by introducing the science behind judgment and decision making, stereotypes, and implicit associations, and by studying human nature in law, we will broaden our knowledge of how Iqbal has affected claims of discrimination by members of stereotyped groups.

Psychologist says implicit bias will lead to racial profiling under AZ immigration law

June 29, 2010 | Mona Tawatao | Tags: , ,

In an interview last month with the American Psychological Association, Yale social psychologist John Dovidio concludes that SB 1070, Arizona’s new immigration law permitting law enforcement officers to question people about their immigration status if there is reason to suspect they are in the country illegally “will lead to systematic and racially/ethnically biased profiling” due to implicit bias. Dovidio defines implicit biases as “beliefs (stereotypes) and feelings (prejudice) that are activated without intent, control, and often conscious awareness[,]” and explains that they are held by most people. Such biases affect decisions more significantly when people feel pressured or threatened, a common experience for police officers, says Dovidio. He further concludes that, “training by itself cannot eliminate the systemic forces of implicit bias that operate unintentionally[.]”

Understanding and surfacing implicit bias is a central tool in the Race Equity Project’s toolkit for addressing and challenging racial disparities in institutions used by low-income people.