A Playbook For Combating Implicit Bias

Recognizing implicit bias, while only one step, leads to the later steps of deconstructing stereotypes and rebuilding their subjects.

unhappy black female lawyerEd. note: This column is part of Law School Transparency’s podcast mini-series about women in the law. This week’s theme is solutions. Learn more here.

For six weeks, my organization, Law School Transparency, has published a podcast mini-series about women in the law on ATL and other partner websites.

We’ve highlighted how implicit bias affects success in the workplace. We looked at popular culture, including an interview with the award-winning lead writer for How to Get Away With Murder, about what goes into writing a female lawyer character. We spent two weeks on the leaky pipeline, first examining the underlying metaphor and then looking at the actual impact. We unveiled new research that shows that, although women now make up a majority of law students, they are less likely to attend prestigious schools — and that this was not the case just a few years ago. We also told two stories that demonstrate the added challenges for lawyers with multiple, traditionally-disadvantaged social identities. One delved into what it’s like to transition from male to female while practicing law in South Florida. The other engaged a Muslim Biglaw attorney in D.C. who wears a hijab.

In this last week, we wanted to focus on solutions. Choosing what to highlight proved to be quite a challenge, however. Many brilliant efforts are underway, with countless other ideas still to be tried. (Diversity Lab’s Women in Law Hackathon includes some promising ideas, for instance.)

Given our organizational mission, we ended up spending two-thirds of the solutions episode on law schools and implicit bias.

For better or worse, law schools function as a bottleneck for lawyers. Virtually everyone who practices law in the United States attended an ABA-approved law school. With just over 200 law schools, this makes law school curricula excellent targets for cultural sea change within the profession.

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The first program we highlighted was Professor Paula Monopoli’s at the University of Maryland Francis King Carey School of Law. The Women, Leadership, and Equality Program, which she founded more than a decade ago, includes one seminar and one applied workshop. Using a large body of empirical research, she probed the ways women are disadvantaged within the profession, from lower representation in the upper ranks of the profession to the impact of implicit bias on career development and well-being. Each year, she guides no more than a dozen students through rigorous skills development to address those disadvantages (which they first study in the seminar) as best she can.

There will always be a place for this great work. Program alumnae we talked to loved it. But if the goal is to cause a cultural sea change — i.e., making the legal profession genuinely diverse and inclusive, where anyone can succeed — we need to move beyond echo chambers to help the uninitiated appreciate that we all need to manage our implicit biases. As hard as Professor Monopoli tries to recruit men into the program, where more men might recognize when they’re unintentionally but negatively affecting their colleagues, she just hasn’t had much success. And even with more diverse participation, the program does not scale.

Every law school in the country has required doctrinal courses. The exact configuration varies, but what matters is that every school funnels every student through this core curriculum. Each course is a cross-section of the entire class — as diverse as the school itself.

Recognizing this, Professor Maritza Reyes (Florida A&M College of Law) integrated what I’ve termed “gender modules” into two required courses, evidence and professional responsibility.

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Her approach in evidence is particularly novel. Here’s Professor Reyes on the podcast:

I think it would be unfair to make my class a gender class because they did not sign up for that. That said, there are times when issues of gender are important in evidentiary analysis, are important in the court room dynamic. It’s important for me to impart that knowledge to students who might otherwise be disadvantaged because they are not aware of these gender biases that could play a role in the development of a theory of a case, or in how they present themselves to a judge or a jury. I think that it is better received than if I came in there and just independently had a lecture on gender.

One gender module she naturally introduces as part of her evidence course involves video clips from the Casey Anthony prosecution and George Zimmerman prosecution. In one case the judge was a man (Casey Anthony), and in other the judge was a woman (George Zimmerman). The primary purpose is for the students to analyze the evidentiary issue, but there’s an underlying issue of gender for students to grapple with too because the attorneys treat the judges quite differently.

The lesson is subtle, but impactful. And it’s reaching a diverse block of students each time.

What’s most promising is that this is replicable across the country without additional funding. Teach evidence? Use these clips. Have other ideas? Share with other evidence professors. Unsure of what works? Talk to your colleagues and figure it out.

It’s not just in evidence where professors can replicate these gender modules. And neither is this modular technique exclusive to implicit gender bias. Racial prejudice, as just one example, permeates our legal system. The Journal of Legal Education, for instance, recently published an issue with a collection of articles about how to teach racism and criminal justice in the wake of Ferguson and other contemporary law enforcement events. Given the fact that the laws of our nation (and of other nations) are often written and executed by people who attend law school, helping students come to grips with the prejudice in all of us could be the greatest lesson they’re taught in your class.

(And as Elie Mystal points out, yes, Mike Pence, black people can have implicit bias against other black people too.)

Whether it’s the Society of American Law Teachers, several sections of the Association of American Law Schools, or just a collection of concerned professors, it only takes a few people at each law school, not a voting majority of faculty.

Recognizing implicit bias, while only one step, leads to the later steps of deconstructing stereotypes and rebuilding their subjects. My hope is that doctrinal faculty will see the role they can play right now, for no cost. It may not change the rest of the legal profession right now, but it builds towards sea change for the not-so-distant future.


Kyle McEntee is the executive director of Law School Transparency, a 501(c)(3) nonprofit with a mission to make entry to the legal profession more transparent, affordable, and fair. LST publishes the LST Reports and produces I Am The Law, a podcast about law jobs. You can follow him on Twitter @kpmcentee and @LSTupdates.