By Shanti Brien • February 28, 2017•Careers, Other Career Issues, Law School, Other Law School Issues, Issues, Sexism, Sexual Harassment, and Other Forms of Discrimination
Two white men and two black men walk into a courtroom….This is not the beginning of a bad joke but rather the start of a true story about implicit bias. I was honored to be judging in the final tournament of a national mock-trial competition. In the mock-trial the plaintiff and the defendant each had two attorneys: one white attorney and one black attorney. As each spoke, I judged them on pre-set criteria like use of case law, presentation, questions to the witnesses, and handling the judges questions.
At the end, I ranked the attorneys. Relying on my general impressions of each attorney and my “gut feelings,” I ranked them in this order: Plaintiff’s attorney (white), defendant’s attorney (white), plaintiff’s attorney (black), and defendant’s attorney (black). Being deeply involved in implicit bias training, I knew to reflect back on my rankings to see if bias could have been involved. To my horror, my rankings appeared extremely biased. The blonde, white student I ranked as the best, and the two black students I ranked as the worst. How could I let this happen? I teach people about reducing bias!
Science teaches us that if you are human you are biased. Even people with avowed commitments to impartiality such as judges have been shown to have bias. Implicit biases are the attitudes or stereotypes we all hold about groups of people (based on gender, race, ethnicity, age, or appearance, for example) that affect our understanding, actions, and decisions in an unconscious manner.
Implicit or unconscious biases are thought processes rooted deep within the brain formed from a lifetime of exposure to media, family, and stereotypes. They occur because we have to process so much information: 11 millions bits of information per second. To function in that crazy jumble of information the brain must create shortcuts, also called heuristics. When you see a stranger on the street, within milliseconds, your brain uses the shortcuts to categorize and assign attributes to the person. These functions help us but at a cost: the shortcuts can cause us to miss information, misinterpret a situation, or misjudge a person.
Luckily, biases have been shown to be malleable; they can be gradually unlearned through a variety of debiasing techniques. But first they must be recognized. Biases are often hidden from our view; that why they are called “implicit” or “unconscious.”
To uncover my biases I could look back over all the papers I have graded in my five years of teaching. I try to be fair and grade the papers on the content. I use a pre-established grading metric rather just reading the paper and giving an overall grade that feels fairs. I believe I grade on objective factors like analysis, research, argument and citations. However, unless I use a blind grading system, it is possible my biases could inadvertently take hold: If I were to match the assigned grades to the identity of the students, I may find certain patterns. What if my white students on average did better than my students of color? Perhaps I gave male students higher grades that females? I swear this could not be true; but then again, biases are pervasive and hidden.
This type of unequal treatment would also contradict my avowed commitment to egalitarianism and my decades-long work for equality. Still, research shows that bias do not necessarily align with our declared beliefs. In fact, people with very strong commitments to being unbiased might be the most at risk because of lack of introspection on the subject. I watched a great TED talk on implicit bias by a diversity trainer, Verna Myers. She told this story:
I was on a plane and I heard the voice of a woman pilot coming over the P.A. system, and I was just so excited, so thrilled. I was like, "Yes, women, we are rocking it. We are now in the stratosphere." It was all good, and then it started getting turbulent and bumpy, and I was like, "I hope she can drive!"
I added some emphasis there so that you could hear the fear in her voice; Verna Myers is an African American woman, successful business person and diversity and inclusion specialist and she got scared about having a woman pilot. That is how embedded, how instantaneous, and how contradictory our biased can be expressed.
Implicit biases tend to favor our “ingroups.” By ingroups we mean the cultural groups that we belong to. For instance, I identify with and feel comfortable in these groups: women, lawyers, mothers, criminal justice advocates. Although people can disfavor their ingroups (Verna Myers showed bias against women); some studies suggest that favoring ingroups may be more to blame for the inequities we see in society that the disfavoring of our outgroups. Consider the Brock Turner case, where the judge shared many in-groups with the defendant: both white males, both athletes, both went to Stanford. Ingroups matter.
Bias against an outgroup or in favor of an ingroup is much more likely to be expressed when certain factors are present. We call these your “risk factors”: 1. ambiguity (where there is uncertainty, our brains tend to fill in information based on bias); 2. stress and time-pressure (you know what that is!); 3. charged emotional states like anger and frustration; and 4. non-accountability (when you have discretion to make a decision without providing reasons or without being accountable to another).
I think the mock-trial presented me with the problem of ambiguity. All of the young “attorneys” were articulate, well-prepared, knew the law, and argued better than many real attorneys--they had made it to the national finals, after all. Ranking the four asked me to choose between the best and the best, a difficult choice that can be tipped by a slight preference for one’s style or by hidden associations between race and accomplishment. Luckily, I was accountable for my rankings. I knew someone would review the scores of the pre-set criteria. The criteria also made my decision more deliberate, more mindful, and less based on my “gut.” I admit that the scores on the pre-set criteria could have also been impacted by bias - but they were all I had.
After consulting those scores I changed the second and third place rankings. Upon deliberate articulation of the essential elements of their trial work, I could see the plaintiffs presentations were slightly better. The plaintiff attorneys, both white and black, deserved the higher rankings. I took self-awareness and humility on my part to admit my initial mistake and make the change. But ultimately I am human--in addition to being a lawyer--I acknowledge my biases and I am working on it.
 Rachlinski, Jeffrey J.; Johnson, Sheri; Wistrich, Andrew J.; and Guthrie, Chris, "Does Unconscious Racial Bias Affect Trial Judges?" (2009). Cornell Law Faculty Publications. Paper 786, located at http://scholarship.law.cornell.edu/facpub/786
 Staats, Cheryl, et al. “State of the Science: Implicit Bias Review” The Kirwin Institute (2016), located at Biashttp://kirwaninstitute.osu.edu/wp-content/uploads/2016/07/implicit-bias-2016.pdf
 Disalvo, David “Your Brain Sees Even When You Don’t,” Forbes (Jun. 22, 2013).
 See, e.g., Kahneman, Daniel, Thinking, Fast and Slow, New York, 2011.
 See fn. 2, supra.
 See Cynthia M. Frantz et al, “A Threat in the Computer: The Race Implicit Association Test as a Stereotype Threat Experience,” 30 PERSONALITY & SOC. PSYCHOL. BULL. 1611, 1611-22 (2004).
 Myers, Verna “How to Overcome our Biases? Walk Bolding Toward Them,” TEDxBeaconStreet (Nov. 2014) located at https://www.ted.com/talks/verna_myers_how_to_overcome_our_biases_walk_boldly_toward_them
 Staats, Cheryl, et al. “State of the Science: Implicit Bias Review” The Kirwin Institute (2013), http://kirwaninstitute.osu.edu/docs/SOTS-Implicit_Bias.pdf
 Greenwald, Anthony G.; Pettigrew, Thomas F.“With malice toward none and charity for some: Ingroup favoritism enables discrimination.” American Psychologist, Vol 69(7), Oct 2014, 669-684. http://dx.doi.org/10.1037/a0036056
 See Stack, Liam “Judge Aaron Persky Under Fire for Sentencing in Stanford Rape Case” The New York Times (June 7, 2016).