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4.2 Implicit Bias
Implicit Bias
Everyone holds unexamined stereotypes and prejudices that are beyond their conscious awareness, typically called “implicit bias”.
This concept arose in the field of cognitive psychology, a field which examines all internal functioning of the brain. Implicit bias explores the conscious and unconscious attitudes, beliefs and responses held by human beings. There is now a wealth of materials on explicit and implicit bias, including strategies to address implicit bias. Some are outlined here.
Examining implicit bias is a core component of reflective practice. Implicit bias impacts relationships with clients, colleagues, the bench, and all others in a placement context. As discussed below, implicit bias can also be made explicit through the adoption of implicit bias into policy. Deepening one’s critical reflection skills will support good advocacy on both individual and systemic levels.
Professor Jerry Kang’s “Immaculate Perception” video, below, also examines implicit and explicit bias.
What is the Difference between Explicit Bias and Implicit Bias?
Human beings often operate using schemas that categories experience in order to make it understandable, and to learn from that experience. These schemas can operate to categorize human beings in both helpful and unhelpful ways. Explicit bias is most often associated with overt discriminatory statements. Implicit bias are often associated with unexamined views that have biased outcomes but without animus. While the line between implicit and explicit views seems clear, an implicit bias can become explicit relatively easily.
Through reflective practice, one’s implicit and explicit biases can be better examined. Dushaw Hockett, founder and Director of Safe Places for the Advancement of Community and Equity (SPACEs), talks about addressing implicit bias and aligning explicitly held beliefs with implicitly held beliefs.
As Hockett notes, with practice we can begin noticing bias and then begin addressing it. This relies on skills of self-reflection.
This PBS video featuring Professor Dolly Chugh demonstrates how implicit bias can impact who professors respond to regarding admission to a PhD program. Professor Chugh suggests the Harvard Implicit Bias test (below) and a “self audit” as useful ways to start combating one’s own implicit bias.
One of the most common and accessible methods to test one’s implicit bias is through the Harvard Implicit Association Test (IAT), mentioned in the video above, is often used as a starting point to discuss implicit bias. Over the past 15 years, the data gathered from the IAT has been used to demonstrate both expected and unexpected data about people’s implicit biases, including biases held about members in one’s own identity group(s). Try a few of the implicit bias tests. Note that any data collected for the project is anonymous.
Despite their proven utility to begin unpacking bias, implicit bias tests and training have also been criticized for ignoring systemic racism. For example, see Janice Gassam Asare, “Your Unconscious Bias Trainings Keep Failing Because You’re Not Addressing Systemic Bias”, Forbes (29 December 2019). There are also serious questions about the degree to which simply completing a test goes far enough in actually combating bias. Chalking up prejudice to “unconscious bias” can lead people to excuse their prejudice. It is therefore essential to connect unconscious bias training to conscious action, awareness of systemic bias, and action.
There are also fascinating interplays between public policy and law in reducing implicit and explicit bias. For example, Eugene Ofuso et al found convincing empirical evidence that when same-sex marriage was legalized, implicit and explicit antigay bias was reduced in the United States. (see Eugene K. Ofuso, Michelle K. Chambers, Jacqueline M. Chen and Eric Hehman, “Same-sex marriage legalization associated with reduced implicit and explicit antigay bias” (PNAS April 30, 2019, online: https://www.pnas.org/content/pnas/116/18/8846.full.pdf).
Exercises
“Chitling Test of Intelligence”: Developed by Adrian Dove, this test challenges traditional notions of “knowledge” and “intelligence”. Try the short 15 question quiz here: http://www.wilderdom.com/personality/intelligenceChitlingTestShort.html. Be sure to check your response against the answer key in the top right corner.
“Stroop Test”: This test was designed to understand our “directed attention”, which is a cognitive mechanism used to manage our thoughts by inhibiting one response over another. The Implicit Bias test uses this same notion. The Stroop Test is available online with five levels of difficulty. http://s3.mirror.co.uk/click-the-colour-and-not-the-word/index.html
“Dys4ia” Video Game: this video game can be played for free using the arrows on your key board. Anna Anthropy developed this game based on her personal experiences as a trans woman beginning hormone replacement therapy. Follow the link to learn about Anna’s journey: http://www.newgrounds.com/portal/view/591565/. Note:This game features low-rez pixel nudity and frank discussion of personal issues of sexuality. The purpose and effect is in no way titillation, but it is still a game for mature audiences. Also, the gameplay shifts quickly enough, that those with epilepsy should take care when playing.
“Spent”: This interactive game challenges you to live as though you were an unemployed single parent in Durham living off of $1000/month. Take this challenge and try to connect to the experiences of your potential client. http://playspent.org/
Further Readings
Muneer I. Ahmad, Susan J. Bryant, & Jean Koh Peters, American Association of Law Schools Clinical Conference Plenary Session, “Teaching Our Students to Challenge Assumptions: Six Practices for Surfacing and Exploring Assumptions, and Designing Action,” New Orleans, LA (May 2007).
Susan Bryant, “The Five Habits: Building Cross-Cultural Competence in Lawyers” (2001) 8:33 Clinical Law Review 33.
Andrea A. Curcio, Teresa M. Ward & Nisha Dogra, “Educating Culturally Sensible Lawyers: A Study of Student Attitudes About The Role Culture Plays in the Lawyering Process” (2012) 16 University of Western Sydney Law Review 100.
Justice Michael B. Hyman “Implicit Bias in the Courts” (2014) 102 Illinois Bar Journal Magazine 40.
Jerry Kang, “Trojan Horses of Race” (2009) 118:5 Harvard Law Review 1489.Ascanio Piomelli (2006) “Cross-Cultural Lawyering by the Book: The Latest Clinical Texts and a Sketch of a Future Agenda” 4 Hastings Race & Poverty Law Journal 131.
Leonard L. Riskin, “Knowing Yourself: Mindfulness” in The Negotiator’s Fieldbook (American Bar Association, 2006) 239, available at: http://ssrn.com/abstract=1465190
Rose Voyvodic, “Advancing the Justice Ethic Through Cultural Competence”, Paper delivered for the Chief Justice of Ontario’s 4th Colloquium on the Legal Profession, available at: http://www.lsuc.on.ca/media/fourthcolloquiumvoyvodic.pdf
Gerald Lopez, Rebellious Lawyering: One Chicano’s vision of Progressive Law Practice, 1st ed (Westview Press, 1992).
Christine Zuni Cruz, “[On the] Road Back In: Community Lawyering in Indigenous Communities” 24 American Indian Law Review 1
Reflection Questions
Take a few of the IAT tests of your choosing. Were any of the results surprising to you? If so, what steps might you take to begin dismantling these unconscious biases?
Consider policies, laws, or pieces of legislation that make implicit bias explicit. Identify how the policy, law or piece of legislation might be amended. What process might be employed to minimize the reintroduction of implicit bias in both process and substance?
What instances of implicit bias have you noticed in reading cases or legislation during law school?