Your Brain, Law School, and Law Practice:  Implicit Biases Come Out in the Open

Implicit bias is in the news and that is good news.  The recent publicity surrounding police shootings has brought that term into more conversations.  In this election season, candidates are even tossing the phrase into their debates. Let’s take a look at what it means and why it is especially important for law students and lawyers to understand it. 

Here are some iconic pictures.  Attorney General Nicholas Katzenbach (serving under President Kennedy) is confronting Governor George Wallace on the steps of the University of Alabama in 1963.  Wallace was refusing to allow the entry of African-American students, specifically Vivian Malone pictured here, into the school because he supported racial segregation.  At the time, Wallace’s racial grandstanding was scoring political points with his constituency. 

For the most part, such explicit racial bias is condemned in our country today and there are a number of laws that make intentional racial or gender biased conduct actionable.   High profile persons who make explicitly racist statements are usually condemned.  Think of Donald Sterling, the former owner of the Los Angeles Clippers basketball team.  And most people consider race or gender bias that way- as something bad/racists/sexist people do, and good/non-racist/non-sexist people don’t do.  (We have more work to do in the area of explicit bias with regard to sexual orientation and gender identity, but that is another post.) 

The laws, and some people, often seem to assume that explicit bias is the only bias that we need to confront.  Bias, however, is a much more complicated beast.  Implicit biases can arise from unconscious associations and attitudes, can affect us without our knowledge or intention, and therefore can affect people who honestly disavow bias and stereotyping.   Yes, that means you and me and probably everyone else on the planet, including clients, jurors, judges, police, litigants, and witnesses.  Moreover, implicit bias can have the same pernicious results as explicit bias but implicit bias operates under the radar, making it more difficult to handle.  But once again, knowing how the brain operates can help you prepare for these challenges.

Understanding Implicit Bias

Researchers are exploring the gap between conscious and unconscious bias. Project Implicit for example is one ongoing study of people’s attitudes. A lot of psychological studies, when you look at them closely, may consist of findings based on maybe a hundred undergraduate sophomores participating because they are required to as part of psych 101.  This study is different in its size and scope. Visitors have completed millions of demonstration tests since 1998. So they have quite a large sample size, although it is self-selected.  You can go to the site and take the actual tests yourself for a better idea.

The general concept underlying the test is based on the timing of various word associations.  For example, if I play a word association game and use the words “day,” you might immediately think “night,” and if I say “salt,” you might quickly respond “pepper.”  Your brain makes these associations quickly.  Your brain is a categorizing machine and learns the associations in your environment quickly and efficiently.  Less common associations will take your brain longer to make.  You could think of a relation between thunder and bison, but it would take longer than the association between thunder and lightning. 

Take the Stroop Test

Here’s an example of the general concept (developed in 1935 and known as the Stroop Effect).  Don't read these words -just say the colors they're printed in, and do this aloud as fast as you can.

If you're like most people, your first inclination is to read the words, 'red, yellow, green...,' rather than the colors they're printed in, 'blue, black, purple...'The words themselves have a very strong influence over your ability to say the color. Your brain is dealing with interference - what the words say is different from the color of the words.   When the colors are congruent, it is very easy to do.  When they are not congruent, it takes longer. That is the basic idea behind the implicit bias test – measuring what concepts are congruent and which ones take our brains longer to match.  So, for example, if it takes you longer to match science words with females, or liberal arts words with males, the test is measuring your brain's bias towards females and science. 

The reason test takers may find it difficult to match females with science words, the researchers believe, is the same reason it is harder to associate saying the word "red" when reading it in blue print. Connecting concepts that the mind perceives as incompatible takes extra time. In the Stroop task using colors, the task would be possible if you slowed down – in fact with enough time your performance in the easy and hard conditions would not be detected.

What does it mean?

What does this preliminary research tell us about our brains and prejudice?

The first finding is that implicit biases are pervasive in testing. They appear as statistically "large" effects in the results. Large groups of test takers prefer white over black, young over old, abled over disabled.

Second, and perhaps more disturbing, people are often unaware of their implicit biases. Ordinary people, including the researchers who direct the project, are found to harbor negative associations in relation to various social groups (i.e., implicit biases) even while honestly (the researchers believe) reporting that they regard themselves as lacking these biases.   So the conscious brain does not believe it holds these prejudices, while the unconscious brain is quite efficiently employing them. 

Consider, for example, what appears to be an unconscious association of “American” with “white.” One study found that college students, in 2008, many of whom supported President Obama, unconsciously treated Obama as more foreign than Tony Blair, the former British prime minister. The “birther” movement fed into this implicit bias. 

Third, and the focus of the current conversation, there are findings that these biases may have real consequences.  For example, one study found that police arrested blacks at almost 4 times the rate as whites for marijuana use, despite surveys showing roughly similar rates of use for both groups.  Another example is given here.   

So what can we do? 

First, knowledge of implicit biases is important.  Knowing that even “good” people hold implicit biases helps us understand that the problem is not that people are like Gov. George Wallace.  It is more complicated and saying there was no explicit intent should not end the conversation about bias. 

Second, people can try to consciously override their biases.  Research is not extensive, but there is some indication that, once we are conscious of our implicit biases, we might be able to work to overcome them.  For example, exposure to counter stereotypes helps reduce bias in some studies by priming our brain with images that counteract the biases. Learn and practice how to switch your own perspective to that of other people. How does it feel to be in someone else’s shoes?  This approach is particularly important for an attorney who has to be persuasive to persons who may hold contrary views or have different experiences. 

Third, eliminating hostile environments that prime for discriminatory attitudes is important but creating more diverse environments may help more.    In the words of the researchers “familiarity breeds liking."

Finally, we need to take implicit biases into account in the law.  When proposals are made to increase, for example, stop and frisk programs, we can take into account that there will be increased scrutiny based on appearance and ambiguous behavior may be interpreted through the lens of implicit racial bias.  Such a program will probably lead to disparate treatment based on race.  Let’s focus on that practical and deeply troubling consequence in evaluating the proposal.  As to the police shootings that are commanding our attention, implicit bias needs to be an explicit part of the conversation about police training methods and tactics.

Marybeth Herald is a law professor at Thomas Jefferson School of Law and author of Your Brain and Law School.

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