Unconscious Bias Remains Silent But Deadly For Legal Diversity
How can we best address the substantive inequalities in the legal profession?
“We ain’t going nowhere, but we got suits and cases.” — Kanye
On Monday, the Supreme Court held that jury deliberations are not entitled to secrecy if evidence emerges that those discussions were marred by racial or ethnic bias. As highlighted by the New York Times, Justice Anthony M. Kennedy wrote for the majority in the 5-to-3 decision and stated, “Racial bias implicates unique historical, constitutional and institutional concerns.”
Rarely will we encounter such overt bias in our legal careers, but unconscious bias is one that pervades every profession. A clear statement based on racial stereotypes or animus may have been common in earlier decades, but that is not the systemic problem many of us in the legal profession face today.
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As I have previously mentioned, implicit or unconscious bias is a mental shortcut “that fills in gaps in our knowledge with similar data from past experiences and cultural norms.” It is a normal part of how we make decisions, and it is not always a bad thing.
Unconscious bias based on race pervades our law, education, and politics — and it often tends to be negative. Here is what FBI Director James Comey had to say on the subject in 2015, as noted by the New York Times:
Previous F.B.I. directors had limited their public comments about race to civil rights investigations, like murders committed by the Ku Klux Klan and the bureau’s wiretapping of the Rev. Dr. Martin Luther King Jr. But Mr. Comey tried to dissect the issue layer by layer. He started by acknowledging that law enforcement had a troubled legacy when it came to race.
“All of us in law enforcement must be honest enough to acknowledge that much of our history is not pretty. At many points in American history, law enforcement enforced the status quo, a status quo that was often brutally unfair to disfavored groups.”
Mr. Comey said there was significant research showing that all people have unconscious racial biases. Law enforcement officers, he said, need ‘to design systems and processes to overcome that very human part of us all…. Although the research may be unsettling, what we do next is what matters most.’
During the recent political campaign season, some candidates claimed it was unfair to “to use a broad brush to accuse law enforcement of — of implicit bias or institutional racism.” The truth is that implicit or unconscious bias should not be deemed an insult. In fact, these biases are part of a reality that we all suffer from. In other words, justice is not blind. Unconscious racial bias can lead to racial inequality.
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It is important to be conscious of our hidden biases, but as Richard Banks and Richard Thompson Ford of Stanford Law School point out, “The goal of racial justice efforts should be the alleviation of substantive inequalities, not the eradication of unconscious bias.”
The percentage of minorities in the legal profession has barely budged since 2000. In 2000, 88.8 percent of lawyers were white. In 2010, 88.1 percent of lawyers were white.
Currently, 92 percent of law partners are white.
How can we best address these substantive inequalities in the legal profession? In the words of Comey, I believe we all need “to design systems and processes to overcome that very human part of us all…. Although the research may be unsettling, what we do next is what matters most.”
In her book Going ‘All-In’ on Diversity and Inclusion: The Law Firm Leader’s Playbook, Kathleen Nalty points out an interesting paradox: “research demonstrates that organizations that view themselves as highly meritocratic tend to have members with more bias than organizations that do not. People who believe the firm is meritocratic tend to perceive themselves as unbiased and fair, which causes them to succumb more easily to unconscious biases.”
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To Nalty’s point, I invite you to analyze your own biases through Harvard’s Project Implicit, which offers various implicit association tests. Specifically, I found the Race Implicit Association Test to be quite revealing. I’m sure many of you will be surprised by your results.
You should also check out the book Blindspot: Hidden Biases of Good People (affiliate link), in which Mahzarin R. Banaji and Anthony G. Greenwald highlight the “hidden biases we all carry from a lifetime of exposure to cultural attitudes about age, gender, race, ethnicity, religion, social class, sexuality, disability status, and nationality.”
For those interested in learning more about unconscious bias, be sure to mark down your calendars for the ABA Webinar, Combating Bias and Increasing Inclusion in the Legal Profession, which will be moderated by Danielle R. Holley-Walker, Dean of Howard University School of Law, on Tuesday, March 28 at 1:00 p.m.
Renwei Chung is the Diversity Columnist at Above the Law. You can contact Renwei by email at [email protected], follow him on Twitter (@renweichung), or connect with him on LinkedIn.
