The past few years have witnessed a vibrant discussion about Social Cognition and Mind Science and its theoretical implications for the practice of law. The science is fascinating but many busy advocates overwhelmed with demand are left wondering, “what is its relevance to the day to day practice of law?”

What is this science and why should be care?

Social Cognition examines the ways in which the brain perceives, sorts, associates and recalls information using mental schemas (or shortcuts). The process affects the way we analyze information and our approach to problem solving. Our schemas color our attitudes and beliefs, both conscious and unconscious, and guide our behavior. See Jon Hanson & David Yosifon, The Situation: An Introduction to the Situational Character, Critical Realism, Power Economics, and Deep Capture, 152 U. Pa. L. Rev. 129, 149-77 (2003); Gary Blasi & John T. Jost, System Justification Theory and Research: Implications for Law, Legal Advocacy, and Social Justice, 94 Cal. L. Rev. 1119 (2006).

Social Cognition science establishes that all of us have cognitive bias that influences how we perceive and make decisions about other people. Categorization is a basic tool the mind employs for interpreting perceptions, encoding those perceptions into memory and making both conscious and sub conscious decisions based upon those perceptions and memories. People continually use cognitive shortcuts, exaggerations, over-simplifications, and generalizations to allow them to prioritize and make sense of the overload of incoming information.

We also learn from social cognition scientists that we make most of our decisions at the unconscious level. It could not be any other way considering the conscious mind is very slow compared to the blinding speed of unconscious calculations. Imagine trying to drive to work if you had to be conscious of all of the minute speed and steering alterations necessary to drive. You would probably go mad or at least crash your car. Driving to work each day no longer becomes a matter of conscious thought, but is the result of decisions once made consciously that are so routine they are moved below the conscious level.

Racial stereotyping is one method that people employ almost automatically in order to understand their surroundings. Current law ignores much of what we now understand about how the mind works. The courts are bound by science that has long ago been discredited. When our civil rights laws were first interpreted, social scientists believed that prejudice operated largely in conscious, explicit, deliberate modes. Now it is generally viewed by social scientists as also operating in a less conscious, implicit, spontaneous, mode, below the level of conscious thought. At the same time it was believed that all discrimination contained an element of antipathy or animus. Social scientists no longer believe that this is a necessary element. Finally, social scientists once believed that discriminatory actions were an aberration in civil society so that removing bad actors would return society to a natural state of racial harmony. It would be hard to find a social scientist today that holds this position today.

Social cognition science has powerful implications in matters of race. First, it undermines the central assumption of society’s dominant frame, the “colorblind paradigm” that tells us that that racial discrimination, if it exists, must be the result of a conscious act. To affect a remedy there must be a perpetrator with conscious intent and a victim. Outside of that analytical framework the law assumes that discrimination does not exist. It directly challenges the psychological assumptions that are the underpinning for the “Intent Doctrine” announced by the Supreme Court in Washington v. Davis that effectively closed the door on equal protection claims more than 30 years ago. The social scientists have given us a new frame for understanding intent by de-linking intent with consciousness.

This impressive body of research has confirmed that much of society’s racism is not a series of unconnected, intentional acts, but is a collective, historically influenced institutionalized, structural and often sub conscious process. The implicit association test is but one measure of social cognition as it applies to race. We have learned that awareness of the brain’s natural tendency to sort everything and everyone, which otherwise causes both helpful and harmful unconscious bias, actually helps to mitigate discriminatory conduct. Social Cognition/Mind Science and its application to a poverty law practice. One Advocates Perspective. See Christine Jolls and Cass R. Sunstein, Debiasing through Law (2005); see generally Jerry Kang, Trojan Horses of Race, 118 Harv. L. Rev. 1489, 1508 (2005). We also learn that the brain is malleable and conscious consideration of desired outcomes can lead to an adjustment of our brain’s schemas in a way that leads to better results.

So, How does this apply to the practice of law?

A. An understanding of Social Cognition can make our work more conscious and purposeful

We have learned from Social Cognition science that our daily routine often becomes “second hand”. These second hand habits can continue long after the environment in which they were developed has changed. It is necessary then, to raise matters of importance to the conscious level to examine whether our shortcuts achieve the goals we seek. If we don’t raise the important matters of race to a conscious level it can compromise how we might be assessing a client’s statements and claims.

So the first practical lesson from Social Cognition is that you must bring an analysis of the outcomes of your claims to the fore and be conscious of them in one’s evaluation of cases. All race-based claims are not the same and a similar claim brought 5 years ago may not yield the same result if it were brought today. It is important that we internalize the lessons of social cognition to make conscious race as a matter of ultimate concern.

It is likewise important that these lessons of mind science be shared with those with whom we work to insure that unconscious bias does not unfairly filter out race-based claims. Using powerful audiovisual presentations that allow one to experience the limitations of our perceptions and our own bias, Legal Services of Northern California trained staff at all levels in this important new science. In the 5 years since the training began, staff have become acutely aware of the vast chasms that separate people from opportunity along racial lines and actively set out to find remedies, once thought too difficult to address.

Since the training, advocates handling Medicaid cases are now questioning why the programs pays out benefits to white people at twice the rate of people of color. Disability advocates are uncovering a well-established bias against the granting of disability benefits based upon posttraumatic stress disorders to Southeast Asian Immigrants. Frontline staff are examining how strict enforcement of public housing rules against unauthorized guests prevent young African American fathers from visiting their children. We witness new examples every week as advocates consciously evaluate cases through the lens of race.

The new evaluation was made possible through an understanding of social cognition science.

B. Using cognitive science to frame our advocacy before decision-making bodies.

When advocates approach a decision maker in court or in a legislative/regulatory body, an understanding of social cognition science helps to frame our advocacy. The science teaches us that it is absolutely essential that we put the issue of race back on the table in our advocacy specifically articulating the impact of decisions along racial lines. Employing racial impact statements forces a decision maker to consciously consider the disparate impact of seemingly race neutral policies.

In recent inclusionary housing advocacy, an advocate’s study demonstrated that the historical market based “colorblind” policies would insure that all new growth areas would create housing affordable only to that part of the population that was overwhelmingly white. Advocates argued that only the adoption of an inclusionary housing policy would address the structural inequity that leads to segregated communities by providing a racial impact analysis that measured the proposed policies performance on people by economic strata and race. By making the issue of race a conscious consideration, decision makers would have to ratify the inequities in the structure or engage in a discussion of remedies.

In a courageous piece of advocacy the Homeless Action Center of Alameda County challenged cuts in the County General Assistance program with a Race Impact Statement (RIS) that showed how African American were unfairly targeted in the cuts. Employing a structural racism analysis, the RIS revealed that African American were unfairly classified as employable and not eligible for services while at the same time being segregated into neighborhoods without transportation or jobs. It is reported that framing the cuts in the context of their racial impact caused two members of the board to question the proposal and this may lead to its defeat.

In a “colorblind” world, decision makers are given the luxury of not considering the impact of their decision on racial minorities. Social Cognition science confirms that bowing to the colorblind paradigm is destructive to the interests of racial equity by allowing unstated unconscious bias to go unchallenged.

C. In the long term social cognition science may reopen the courts to equal protection claims.

Ultimately it must be an advocates’ goal to see that the law catches up to the science. We must begin to incorporate the science into case law. The long-term goal would be to recast the intent doctrine in Washington v. Davis to allow a showing of implicit bias and/or unconscious intent. This alone would re open the doors to the courthouse to equal protection claims. Without more field-testing of social cognition and implicit bias that goal may be a decade away.

We are more likely to have success in the near future by planting the seeds of change in cases outside of employment or housing. Land use and health care may offer fertile soil for advocates to use race impact statements to expose structural defects in society that lead to an inequitable distribution of essential services and resources. In these cases, decided at a local level race impact statement have the greatest promise.

We must also encourage the writing of scholarly articles that employ social cognition science to re frame discrimination in American society outside the context of perpetrator and victim and in the context of structural racism. Reframing our litigation in these terms may support our efforts to expand the interests of race equity.

This article was authored by William Kennedy, Managing Attorney and Acting Deputy Director, Legal Services of Northern. California