In the current Jan.-Feb. 2010 issue of the Clearinghouse Review, you’ll find a new article written by LSNC managing attorney Bill Kennedy, staff attorney Colin Bailey, and former staff attorney Emily Fisher about communications framing, entitled “Framing in Race-Conscious, Antipoverty Advocacy: A Science-Based Guide to Delivering Your Most Persuasive Message”.  It is a comprehensive article that provides both the scientific background of communications framing, as well as how legal advocates can harness it to the benefit of their clients.  I encourage all REP blog readers to read the piece and give us feedback about your efforts to implement communications framing in your practice.

In an article published yesterday on SCOTUSblog.com, Professor Michael J. Klarman, from Harvard Law School, outlines the Supreme Court’s impact on race relations for the last fifty years, from Brown vs. Board of Education to Parents Involved.  It is an interesting historical account and well worth the read.

Professor Klarman reminds readers of the current conservative majority’s common ideology:  “That ideology embraces a narrow, formalist conception of what counts as race discrimination; abhors the use of racial preferences, whether benignly motivated or not; and deems this nation’s ugly history of white supremacy as something more to be repudiated than remedied.”  This is important for us, as advocates to remember.  By using the tools the Race Equity Project endorses, such as social cognition and framing, we can push back against this conservative ideology, to prevent further racially regressive results in our communities.

Listen to the NPR Story

From NPR.org, published January 25, 2010:

After making a silly mistake, it’s not uncommon for a person to say, “Oops — I was on autopilot.” In his new book, The Hidden Brain, science writer Shankar Vedantam explains how there’s actually a lot of truth to that.

Our brains have two modes, he tells NPR’s Steve Inkseep — conscious and unconscious, pilot and autopilot — and we are constantly switching back and forth between the two.

“The problem arises when we [switch] without our awareness,” Vedantam says, “and the autopilot ends up flying the plane, when we should be flying the plane.”

The autopilot mode can be useful when we’re multitasking, but it can also lead us to make unsupported snap judgments about people in the world around us. Vedantam says that when we interact with people from different backgrounds in high-pressure situations, it’s easy to rely — unconsciously — on heuristics.

Read An Excerpt

3-Year-Old Bigots?

Racial categorization begins at an extremely early age. Vedantam cites research from a day-care center in Montreal that found that children as young as 3 linked white faces with positive attributes and black faces with negative attributes.

“Now, these were children who are 3 years old,” Vedantam says. “It is especially hard to call them bigots, or to suggest that they are explicitly racially biased or have animosity in their hearts.”

Vedantam says the mind is hard-wired to “form associations between people and concepts.” But he thinks that the links the children made between particular groups and particular concepts were not biologically based — those judgments came from culture and upbringing.

“We tend to think of the conscious messages that we give children as being the most powerful education that we can give them,” Vedantam says — but the unconscious messages are actually far more influential.

He says that for every 50 times a year a teacher talks about tolerance, there are many hundreds of implicit messages of racial bias that children absorb through culture — whether it’s television, books or the attitudes of the adults and kids around them.

“And it’s these hidden associations that essentially determine what happens in the unconscious minds of these children,” Vedantam says.

‘Take Back The Controls’

In American society, colorblindness is often held up as the ideal. And though it’s a worthy aspiration, Vedantam says it’s a goal that isn’t rooted in psychological reality.

“Our hidden brains will always recognize people’s races, and they will do so from a very, very young age,” Vedantam says. “The far better approach is to put race on the table, to ask [children] to unpack the associations that they are learning, to help us shape those associations in more effective ways.”

Here is an interesting NY Times Op-Ed piece titled the “Shades of Prejudice” which highlights many of the Race Equity Project’s topics of unconscious bias and framing.  The writer starts off with the recent controversial comments by Senate majority leader Harry Reid,  that President Obama had an edge over other Black politicians because he is of a lighter skin tone and does not have a distinct “negro dialect” and leads the reader to the idea that this is an example of an unconscious prejudice towards blackness itself.

“This isn’t racism, per se: it’s colorism, an unconscious prejudice that isn’t focused on a single group like blacks so much as on blackness itself. Our brains, shaped by culture and history, create intricate caste hierarchies that privilege those who are physically and culturally whiter and punish those who are darker.”

A 1988 essay, “White Privilege: Unpacking the Invisible Knapsack,” by Peggy McIntosh of the Wellesley College Center for Research on Women, is worth revisiting 20+ years later as ‘colorblindness’ theories of race continue to threaten meaningful efforts to achieve racial equity. As other writers have pointed out, the myth of colorblindness is itself a species or byproduct of white privilege:

While the idea of colour-blindness may seem altruistic to some, it’s really a byproduct of white privilege. The ability to see race as a “card” to be “played” is also a byproduct of white privilege. –Mike Barber, race-talk.org

McIntosh’s landmark essay begins from a women’s studies perspective, describing the difficulty she had in getting men to recognize their privileged status even while they were willing to acknowledge the disadvantaged status of women. Starting from the phenomenon of unrecognized male privilege, she considers the ‘interlocking’ phenomenon of unrecognized white privilege – her ‘invisible knapsack.’  She then undertakes a personal inventory of the knapsack’s contents – the generally unseen ‘daily effects of white privilege’ she experiences.  While many of the points may be familiar, reading her 50-item list is unsettling – a little like suddenly seeing that woman with the umbrella walk through the basketball game.

Carlton Waterhouse, Abandon All Hope Ye That Enter?  Equal Protection, Title VI, and the Divine Comedy of Environmental Justice, 20 Fordham Envtl. L. Rev. 51 (2009).

• Summary: “This article explores the attempts to use civil rights law as a means of addressing racial bias, perceived and otherwise, in environmental decision making. Its primary contribution is its development and use of an “environmental racism” rubric to explain why civil rights based challenges to pollution permits and waste facility siting decisions have uniformly failed in the federal courts. Pending congressional legislation, the article concludes, offers little assistance to community members concerned about the effects of additional pollution sources in their neighborhoods. If congress intends to aide communities facing racially discriminatory and adverse effects from polluting facilities the article maintains that comprehensive legislative action is needed. At a minimum, the article contends, Congress should legislatively overturn Alexander v. Sandoval in the environmental context and allow private citizens to enforce EPA’s Title VI regulations.“

Chris Guthrie,  Sheri Lynn Johnson, Jeffrey J. Rachlinski, Hon. Andrew J. Wistrich, Does Unconscious Racial Bias Affect Judges?, 84 Notre Dame L. Rev. 1195 (2009).

• Summary: This Article “report[s] the results of the first study of implicit racial bias among judges. [It]  set[s] out to explore whether judges hold implicit biases to the same extent the general population and to determine whether those biases correlate with their decisionmaking in court. [The] results are both alarming and heartening: (1) Judges hold implicit racial biases; (2) These biases can influence their judgment; (3) Judges can, at least in some instances, compensate for their implicit biases.”

The Sacramento Bee posted two articles today, Dan Walters: Stanford study of exit exam shows fallacy and Some graduation rates worse with high school exit exam, on how the California High School Exit Exam instituted in 2006 has a disproportionate effect on graduation rates of minorities and young women. These findings are based on a study by the Institute for Research on Education Policy & Practice at Stanford University (IREPP) , “the Stanford study looked at graduation rates for students who stayed in school all four years – both before and after California initiated the exit exam. Since the test became a requirement, the study found, a disproportionate number of those who didn’t graduate because of the test are minorities and girls.” Interestingly, the study attributes these findings to what the IREPP researches call the “stereotype threat.” Essentially, this threat is defined as the extra stress on nonwhite and female students to do well on these exams, so as not to confirm negative stereotypes about their group.

This month’s issue of Wired includes an interesting article on how magicians exploit cognitive processes to create their magic tricks. “Our brains don’t see everything—the world is too big, too full of stimuli. So the brain takes shortcuts, constructing a picture of reality with relatively simple algorithms for what things are supposed to look like. Magicians capitalize on those rules. “Every time you perform a magic trick, you’re engaging in experimental psychology,” Teller says. “If the audience asks, ‘How the hell did he do that?’ then the experiment was successful. I’ve exploited the efficiencies of your mind.” Interestingly and as the article points out, even when the audience knows how a trick is done, they are still fooled due to how the human brian is wired. Take a look at Pen and Teller’s infamous Cup and Balls trick using clear cups.

The REP has been training advocates to educate their organizations and clients on the REP tools (Social Cognition and Mind Science, Framing, Community Lawyering, the Intent Doctrine, GIS and Mapping, and Structural and Institutional Discrimination) for the last several years. We’ve decided to share some of the slides we use to train trainers on social cognition and mind science. The  training trainers course introduces future trainers to the core concepts of social cognition and mind science. The training trainers course and the slides displayed below are more technical in nature then the slides used to introduce advocates and community members to social cognition and mind science.

Clicking on the slide show image below will take you to the REP’s Presentation page where you can view this presentation.

If you have questions about these slides please contact us.

Dr. john a. powell of Ohio State University’s Kirwan Institute for the Study of Race and Ethnicity has hypothesized that the structural inequities we observe around us in everyday American life play a large role the development of our unconscious biases, which, in turn, contribute to the perpetuation of those structural (and material) inequities.  If true, while daunting, there may be a way out of this insidious cycle one step at a time.

In a pre-Inauguration, Washington Post article, then-President-Elect Obama was quoted as saying:

“There is an entire generation that will grow up taking for granted that the highest office in the land is filled by an African American… I mean, that’s a radical thing. It changes how black children look at themselves. It also changes how white children look at black children.”

Some researchers have described this possible change in an entire nation’s implicit racial attitudes as “the Obama effect” and suggest President Obama may be right about his ability, through his high-profile status, to “lift” unconsciously-held stereotypes.  As Sam Dillon’s New York Times article recounts, university social psychologists have conducted an experiment that suggests that the inspiring role model that Obama projects may help African-American test-takers overcome implicit associations between their own race and stereotypes about their ability to test well, which had been shown to negatively affect test-taking performance in earlier research, and actually improve test-taking performance.

We will be watching closely to see whether researchers can replicate these findings and in what other areas of life a similar positive “stereotype lifting” effect may manifest.

In response to a study published in this month’s issue of the journal Science, the Associate Press asks: Think you wouldn’t tolerate a racist act?  Think again, says a surprising experiment that exposed some college students to overt racism and found indifference at best.

In a recent post entitled, Misdirecting Our Reactions to Racism, The Situationist reports that this Canadian-led study demonstrated that, in real-life, people do not respond to openly racist remarks made in their presence in the ways they think they will.  Racist remarks created little to no emotional or behavioral change in research subjects despite their thinking they would react somehow openly with indignation or avoid the offending racist.  This finding demonstrates, as have many decades of psychology experiments, that people are just not good at anticipating what they will actually do in socially sensitive scenarios.  And, as reported by CNN , “many people unconsciously harbor racist attitudes, even though they see themselves as tolerant and egalitarian.”

In an attempt to explain why research subjects would fail to show any emotional response or change their behavior in response to overtly racist remarks (in this instance made against blacks), the lead author, Professor Kawakami , hypothesized that the situation may have been so threatening that participants suppressed all emotions.  On the other hand, while people may self-report that they are not prejudiced, they may harbor unconscious, negative associations with blacks:

“You’re not going to react negatively towards that person because they’re saying things that you wouldn’t say but that you still might somehow – at least on a non-conscious level – think are true.”

The Canadian Press reports that a commentary on the study by Professor Smith and Professor Mackie suggests that the study’s findings may be a result of the way in which situational cues, such as a particular environment or thing someone says, can trigger emotions which, in turn, unconsciously trigger one’s identity as a member of a social group, such as a woman who feels pride if another woman gets a promotion.

As advocates, it is important to be aware of the types of unconscious biases that we and others may hold towards our clients and client communities, the situational cues that may be embedded in the environment in which we engage in our advocacy that may shift the sense of identity and group affiliation, especially that of the decision-makers, and consciously use language to trigger the identities most advantageous to our clients’ interests in the face of racist actions or outcomes.  E.g., racism is an offense against all Americans because it undermines the deeply held American value of equality.

In the Fall of 2007, the Connecticut Law Review hosted a symposium that celebrated the twentieth anniversary of Professor Lawrence’s article The Id, The Ego, and Equal Protection: Reckoning with Unconscious Racism. Symposium panelists included, amongst others, Professor Charles Lawrence, Professor Samuel Bagenstos and Ms. Eva Paterson.

The Symposium included the following discussions (available as mp3s):

• Keynote Address By Professor Charles R. Lawrence
• Panel: Evolution of The Id, the Ego, and Equal Protection
• Panel: The Intersection of Law and Psychology
• Luncheon Keynote Address By Professor Amy Wax
• Panel: Applying Unconscious Discrimination

The Connecticut Law Review recently published several articles written by symposium panelists on topics related to unconscious discrimination and Professor Lawrence’s seminal article:

Charles Lawrence III, Unconscious Racism Revisited: Reflections On The Impact And Origins Of “The Id, The Ego, And Equal Protection, 40 Conn. L. Rev. 931 (2008).

• Summary: This essay “seeks to understand and articulate the injury that racism or white supremacy and its reiteration in the law does to African Americans, to other people of color, and ultimately to us all.”

Amy L. Wax, The Discriminating Mind: Define it, Prove It, 40 Conn. L. Rev. 979 (2008).

• Summary: This article addresses “the question of how unconscious discrimination claims-and discrimination claims generally-are substantiated.”

Honorable Janet Bond Arterton, Unconscious Bias And The Impartial Jury, 40 Conn. L. Rev. 1023 (2008).

• Summary: This article “examines the relationship between the scholarly research into unconscious bias and the judiciary’s role in addressing the phenomenon in courtroom practice.”

Mari J. Matsuda, Are We Dead Yet? The Lies We Tell To Keep Moving Forward Without Feeling, 40 Conn. L. Rev. 1035 (2008).

Gowri Ramachandran, Antisubordination, Rights, And Radicalism, 40 Conn. L. Rev 1045 (2008).

• Summary: “This Article seeks to shift the top-down emphasis of recent scholars seeking greater justice and equality through professional psychologists, human resource officials, and other policymakers. [The author] question[s] the temptation to direct too much trust and optimism toward those who are well adjusted, and [the author] call[s] on us to redirect some of that attention to those Martin Luther King, Jr. calls the maladjusted. Instead of thinking of what legal constructs would and could facilitate change by those who are well adjusted, perhaps we can think of what legal constructs would and could facilitate change by those who are maladjusted.”

Catherine Smith, Unconscious Bias And “Outsider” Interest Convergence, 40 Conn. L. Rev. 1077 (2008).

• Summary: “This Article explores biases within and among subordinated groups in an attempt to offer some clarity on how subordinated groups may build coalitions and uncover how their subordinations are interrelated and dependent upon one another to uphold the power and privilege.”

Avital Mentovich, John T. Jost, The Ideological “Id”? System Justification And The Unconscious Perpetuation Of Inequality, 40 Conn. L. Rev. 1095 (2008).

• Summary: This article “expound[s] on several major themes that spring from Lawrence’s masterful (and prescient) incorporation of social psychological theory with research concerning unconscious (or implicit) cognition and motivation.”

Natasha T. Martin, Immunity For Hire: How The Same-Actor Doctrine Sustains Discrimination In The Contemporary Workplace, 40 Conn. L. Rev. 1117 (2008).

• Summary: This article “provides a doctrinal critique of an employment discrimination principle recognized by the courts-the same-actor inference-based on its incongruence with both cognitive psychological research and the social dynamics of the workplace.”

Eva Paterson, Kimberly Thomas Rapp, Sara Jackson, The Id, The Ego, And Equal Protection In The 21st Century: Building Upon Charles Lawrence’s Vision To Mount A Contemporary Challenge To The Intent Doctrine, 40 Conn. L. Rev. 1175 (2008).

• Summary: This article “posits that in order to more effectively acknowledge and remediate racial discrimination, considerations of race must be on the table and kept there, at least until we dismantle the psychological and structural sources of racial inequality.” The article ” 1) provides an overview of Washington v. Davis and the Intent Doctrine; 2) discusses contemporary examples of unconscious bias and structural racism in a variety of social spheres; 3) highlights areas to date where the courts have been particularly receptive to unconscious bias; and 4) posits that, in light of what modern science tells us about discrimination, requiring “proof of intent” is both outdated and largely ineffective in supporting our efforts to advance racial equality and remedy the continuing harms caused by racism.”

John Tehranian, Selective Racialization: Middle-Eastern American Identity And The Faustian Pact With Whiteness, 40 Conn. L. Rev. 1201 (2008).

• Summary: “Drawing on Charles Lawrence’s insights on the power of unconscious racism, John Tehranian examines the social mechanisms that have fueled discrimination against Middle-Eastern Americans and exacerbated their relative invisibility in the body politic and the civil rights movement.”

Welcome to the seventh iteration of our quarterly e-newsletter! We’re going to explore the implication of social cognition, implicit bias, and situationalism to race equity work and there application to a race-based poverty law practice.
The three contributors to this e-newsletter each bring a unique perspective on the application of the mind sciences and situationalism to legal services work. We hope that you will find their articles informative and inspiring. Enjoy!

The Situation of IDEA for Families with Limited English Proficiency, Jith Meganathan, Staff Attorney, Central California Legal Services.

Reversing the Trend in Antidiscrimination Jurisprudence, Kimberly Thomas Rapp, Director of Law and Public Policy, Equal Justice Society.

Connecting Poverty Practice and Mind Science, William Kennedy, Managing Attorney and Acting Deputy Director, Legal Services of Northern California.

Do you have an idea for a future e-newsletter? Would you like to share the race-based work that you are doing with other interested in achieving race equity? Drop us an email. We would love to hear from you!

Introduction

The Individuals with Disabilities Education Act (“IDEA”) is meant to ensure that schools provide disabled students with the services they need to progress educationally. IDEA is rightfully hailed for providing comprehensive educational rights to millions of children previously neglected by the public education system. But from the perspective of situationism, IDEA is a disaster, particularly in addressing the needs of low-income, minority children from limited English proficiency (“LEP”) homes.

Situationism seeks to base law and policymaking on realist models of human action. To achieve this end, it draws on cognitive psychology, social psychology, behavioral neuroscience, evolutionary biology, and related fields. Situationism stands in opposition to non-realist models of human action, particularly dispositionist models, such as the rational actor so beloved by law and economics. The key situationist insight is that while it may appear that our dispositions (personality, attitude, preferences, character, free choices) determine our actions, in truth, our actions are ruled largely by our situations (environmental factors and sub-conscious mental & physical processes).

The Situation of IDEA

Education advocates know well the typical trajectory for LEP kids under IDEA. These children are generally identified as eligible for special education services later than children from English-proficient homes, for schools do not rigorously distinguish academic deficiencies due to disabilities from deficiencies due to limited English proficiency. Once LEP children are identified, their parents consent to limited assessments, simplistic goals, and inexpensive services because of their trust in school personnel. Only after years pass, as the children fall further and further behind their peers, do their parents seek out an advocate for help.

The situation established by IDEA virtually guarantees this outcome for the following reasons:

• IDEA requires schools to provide children the services they need in order to achieve “educational benefit” – generally speaking, progress towards individualized educational program (“IEP”) goals – without adequately reimbursing the schools for those services. Administrators and staff at cash-strapped schools may be dispositionally inclined to help disabled children, but absent funding, they have little situational incentive to properly assess children’s needs, to set challenging goals, or to seek out and provide the services they would need to meet such goals.

• IDEA posits a uniform “parent” able to take advantage of a broad array of rights under the law. In reality, LEP parents are subject to a wide variety of situational forces that diminish their ability to take advantage of these rights:

• Those who are illegal immigrants are, as a situational matter, terrified of invoking legal rights and procedures for fear of drawing attention to themselves and thereby increasing their risk of deportation.

• LEP parents are unable to meaningfully participate in IEP meetings in which school staff provide spoken translation. Staffers will generally translate the group’s conclusions, but not the side discussion that often occurs between team members. Moreover, while parents have the legal right to written translations of IEPs and assessment results, schools are under no legal obligation to inform parents of this right.

• In single-parent homes or in homes with two working parents, it is difficult to make time to learn about children’s rights, or to network with other parents or with disability rights organizations.

• Parents with limited education often trust those with more education and who present themselves as authority figures. Tragically, as system justification theory shows, members of disadvantaged groups regularly internalize perceptions of themselves as social inferiors, are reluctant to challenge the social order, and patiently accept inadequate outcomes. All of these tendencies lead to years of inadequate special education.

• School personnel who participate in IEP teams fall victim to groupthink: they seek consensus rather than airing objections and doubts, they fail to consider outside information and opinions that might contradict the group consensus, and they come to consider loyalty to the group and its consensus as the moral course of action. As Irving Janis, the psychologist who pioneered the study of groupthink, wrote, “Each member is likely to become more dependent than ever on the in-group for maintaining his self-image as a decent human being and will therefore be more strongly motivated to maintain group unity.” For a staffer to admit that a child is not progressing or to consult outside experts for assessments or services is to act immorally and betray the group, all at cost to his or her self-image.

• IDEA is a highly procedural law, exacting in its specification of what must be done to develop an IEP, who must participate, and the timeframes in which each step must be taken. An IEP developed according to these procedures gains procedural legitimacy: because the IEP is the outcome of these rigorous procedures, schools (not to mention administrative hearing officers and judges) presume it to be fair, even in the face of evidence that the child is not progressing. Moreover, much research shows that people view the fairness of procedures as trumping the fairness of outcomes.

• While IDEA gives parents rights to an independent educational evaluation and to a due process hearing, schools often view parents who asserts these rights as dispositionally selfish (i.e., as rational actors freely choosing to privilege their children’s needs over those of the school) rather than as situationally motivated (i.e., as human animals subject to a genetic compulsion to protect their offspring). The IEP team may also view these rights as procedurally illegitimate: invoking them brings in outside opinions and thereby calls into question the morality of group consensus, and also privileges outcomes over procedures. Just as schools view parents who assert their rights as selfish, parents come to view school staff as incompetent, uncaring, or even malicious (rather than as humans seeking procedural legitimacy and subject to economic constraints and groupthink). In taking these stances, both sides make what social psychologists describe as the fundamental attribution error: the human tendency to attribute others’ behavior to their dispositions rather their situations.

What is to be Done?

An obvious solution to this problem would be for federal and state governments (i) to prescribe rigorous assessment for disabilities of all children entering the school system, (ii) to specify exactly what services each disability merits, and (iii) to fully reimburse school districts for the costs of these assessments and services. Such a system would remove nearly all of the situational barriers to children receiving effective services in early childhood, when they are most effective.

Until that day comes, advocates for LEP children are advised to adopt a situationist perspective:

• Attempt to level the linguistic playing field. First, have someone from your office translate for the parent at IEP meetings. Even if you are bilingual, it is ideal to bring someone else so that you can be free to negotiate on behalf of the parent, and save precious time. Request that all written documents produced by the IEP team be translated into the parent’s native language.

• Encourage parents to assert their rights under IDEA (i.e., fight parents’ tendency towards system justification) and discourage them from expressing unwarranted anger or hostility towards school personnel (i.e., remind parents not to make the fundamental attribution error). It will take years for even the perfect IEP to be implemented if the school hates the family and is determined to stonewall on delivery of services.

• In your dealings with the school (and if need be, with administrative hearing officers and the courts), stress the procedural legitimacy of seeking an independent educational evaluation and a due process hearing.

• Resign yourself to groupthink, but use independent educational evaluations and due process as means to route around it. An IEP team will likely never admit that it has spent years signing off on inadequate IEPs; do what is necessary to stop the hearing officer from identifying with the IEP team so that she or she will look at the child’s circumstances with fresh eyes.

This article was authored by Jith Meganathan, Staff Attorney, Central California Legal Services.

Who has found (or is even looking for) the “racist” at the center of the foreclosure crisis? Granted, diverse and voluminous people have been harmed by the crisis across America; but growing data demonstrate brown and black renters and homeowners have been disproportionately impacted by the sub-prime mortgage meltdown. Searching for relief using our traditional model of discrimination would lead us down a trail for a single cause or single actor, an individual perpetrator with “intent” to discriminate, who is responsible for the present uprooting of families and utter demise of entire neighborhoods inhabited by people of color.

While there may be no shortage of people, institutions and other places to begin assigning blame, the ultimate root of the foreclosure problem is, in large part, the unfettered capitalist driven interests of financial institutions, mortgage brokers, securities dealers and investors. Certainly, that is not to suggest that people of color and limited income have not been the targets of irresponsible low- and no-money down adjustable rate lending options—which certainly is true in some cases. Rather, the point here is to bring front and center an illustrative example of how a constricted single actor with intent approach will hardly adequately rectify this and other complex systemic problems harming members of our society and impeding the achievement of racial equality in housing, health, employment, education, and other social and economic necessities.

Since Washington v. Davis, 426 U.S. 229 (1976), the disregard of harm experienced by members of society and focus on the intent of decision-makers and institutional actors has placed confounding limitations on constitutional interpretation and the availability of remedies for victims of varying forms of discrimination. Specifically, this Supreme Court case gutted the protections of the equal protection clause of the Fourteenth Amendment to the U.S. Constitution by setting a standard that places the burden on plaintiffs bringing discrimination claims to establish the intent of the alleged perpetrator to discriminate. Under this intent doctrine, the plaintiff alleging an equal protection violation must prove that the discriminating actor or agency “selected or reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable [racial] group,” Personnel Administrator of Massachusetts v. Fenney, 442 U.S. 256, 279 (1979). More generally, this intent standard and its proliferation in antidiscrimination jurisprudence unjustly shifts the focus of our protective laws away from shielding members of our society and away from reaching restorative outcomes that begin to address institutional structures, practices and social norms that facilitate the kinds of sub-prime lending abuses and other racial inequities evident today.

Modern science explains why always seeking to finger a racist, or an individual with intent to discriminate, is an outdated approach to combating discrimination. Cognitive and social science research shows we all, at some level, have subconscious or implicit beliefs, attitudes and expectations about people based on our exposure to the race, gender, age or other groups to which such individuals belong. These implicit biases often influence our decisions and interactions with others even though we may not possess any explicit prejudice, ill will, or animus. By now, most of us have heard of the Implicit Association Test (IAT) that measures our subconscious biases or read about research studies looking at the implications of these biases in myriad sectors of society.

For example, the Washington Post ran an article about the reflection of the implicit attitudes of physicians in disparities in their medical judgments and treatment recommendations. (“The Color of Health Care: Diagnosing Bias in Doctors,” Washington Post, Aug. 13, 2007.) The New York Times covered a study on the National Basketball Association (N.B.A.) concluding that “players who were similar in all ways except skin color drew foul calls at a rate difference of up to 4 ½ percent depending on the racial composition of an N.B.A. game’s three-person referee crew.” (“Study of N.B.A. Sees Racial Bias in Calling Fouls,” New York Times, May 2, 2007.) The USA Today discussed a study about immigrant skin tone and U.S. earning potential that found “[o]n average, being one shade lighter has about the same effect as having an additional year of education.” (“Study Says Skin Tone Affects Earnings,” USA Today, Jan. 26, 2007.) Ascribe Newswire reported that the risk of housing discrimination begins when prospective tenants simply send email inquiries signed with names commonly affiliated with particular racial or ethnic backgrounds. (“Name is Enough When it Comes to Discrimination,” AScribe Newswire, May 23, 2006.)

Additionally, examples of subconscious biases becoming institutionalized or built into the fabric of institutional structures, practices and norms have made their way into mainstream media. Fortune magazine highlighted the Dukes v. Wal-Mart, 474 F.3d 1214 (9th Cir. 2007), case as an example of the increasing prevalence of social science testimony on implicit bias in discrimination lawsuits. (“The War Over Unconscious Bias,” Fortune, Oct. 15, 2007.) Testimony in the early stages of that case suggested that managers involved in promotion and pay decisions unknowingly engaged in “‘spontaneous,’ and ‘automatic’ stereotyping and ‘in-group favoritism’” that systematically resulted in the most favorable jobs being filled by men, and the company’s historic and overly discretionary promotion and pay procedures allowed managers to unintentionally reinforce structural barriers to women’s advancement. Today, startling statistics of persisting disparities in the number of women and people of color represented in the upper ranks of corporate, academic, legal and other institutions often have little to do with overt gender and racial discrimination, but more to do with “locked-in” or “unquestioned” norms and habits and our country’s history of denying equal opportunities to certain groups in avenues fundamental to social and economic advancement.

As the Wal-Mart case illustrates, our courts have begun to acknowledge the existence and grapple with the implications of implicit and institutional bias. In some areas of law, the presence of implicit bias has provided a basis for judicial findings of discrimination. Courts have long recognized that unconscious biases can shape juror selection and jurors’ perception of plaintiffs and defendants. In the Supreme Court case Miller-El v. Dretke, 545 U.S. 231 (2005), which involved a prosecutor who peremptorily struck ten of eleven prospective black jurors, the existence of unconscious racial bias supported the Court’s ultimate conclusion that the prosecutor’s use of peremptory challenges constituted purposeful discrimination. In the immigration context, an officer’s unconscious bias proved sufficient to constitute a constitutional violation when a deportee was stopped solely on the basis of his Hispanic appearance, as the court noted, “…Border Patrol officers may use racial stereotypes as a proxy for illegal conduct without being subjectively aware of doing so.” Gonzalez-Rivera v. INS, 22 F.3d 1441 (9th Cir. 1994). In EEOC v. Inland Marine, 729 F.2d 1129 (9th Cir. 1984), the court ruled that African American employees alleging racial discrimination based upon a disparate wage structure proved intentional discrimination even though “[t]he company did not consciously set out to establish a two-tiered wage structure, and hence did not act maliciously.”

These cases and social examples briefly discussed here illustrate some of the progress advocates, litigators, scientists and other members of our society have made toward updating our understanding of discrimination and reversing the trend to always identify a racist in order to provide relief for racially disparate outcomes. Legal services and other civil rights advocates are uniquely positioned to continue identifying instances where race may be a factor and urge our courts to understand modern discrimination. Our courts must be encouraged to grapple with persisting racial disparities in areas such as housing, education and employment, and provide a remedy where a “racist” decision-maker may be nonexistent because subconscious and institutional biases may be causing the harm. Our combined efforts can avoid leaving individuals with evidence of discrimination without remedy.

This article was authored by Kimberly Thomas Rapp. Kimberly Thomas Rapp is the director of law and public policy at the Equal Justice Society, a national organization strategically advancing racial justice through law and public policy, communications and the arts, and alliance building.

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.

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

We have spent much time exploring the many ways in which advocates can use mapping to highlight the social isolation and segregation from opportunity of their client communities, among other things, and advocate for positive change. (See REP Blog mapping archives.) However, mapping is tool available to everyone and, as this story may suggest to you, can have its downside, especially when applied to groups racialized as prone to radicalism and violence.

According to the NY Times in Protest Greets Police Plan Map Muslim Angelinos, the Los Angeles Police Department (LAPD) plans to map the location of southern California Muslims under the auspices of the “Violent Radicalization and Homegrown Terrorism” Act. The “Violent Radicalization and Homegrown Terrorism” Act defines “ideologically based violence” as “the use, planned use, or threatened use of force or violence by a group or individual to promote the group or individual’s political, religious, or social beliefs.” That’s the place from which LAPD’s assumptions about Muslims run wantonly in the direction of implicit bias. As many are aware, the law of implicit bias is unsettled.

Though not listed among the LAPD’s official maps, the department never officially withdrew its proposal to map SoCal Muslims. Here’s what others had to say about the proposal.

Peter Bibring, a lawyer with the A.C.L.U. of Southern California, expressed the alarm many felt at hearing that the “starting point for a police investigation is ‘let’s look at all Muslims.’”

Mike German, policy counsel for the ACLU, called the plan “wrongheaded” because the bill calls for heightened scrutiny of people who believe, or might come to believe, in a violent ideology, which, the In These Times article notes, is perfectly legal.

Hussam Ayloush, executive director of the Greater Los Angeles Area chapter of the Council on American-Islamic Relations (CAIR-LA), debates an LAPD proposal to “map” Southern California Muslim communities on “NBC Nightly News.” See the video interview here. The video questions whether racial profiling can be good policing. For an historical view of the process of official state mapping of minority communities and racial profiling policy, see the LA Times article, “Community Profiling’s Long, Sad History” by Professor Richard Marcus of Cal State Long Beach.

Pr. Marcus points out that, under the Bush Administration:

The U.S. Department of Justice banned racial profiling, calling it unconstitutional. Under this definition, former Atty. Gen. John Ashcroft followed in February 2002, saying that using race “as a proxy for potential criminal behavior is unconstitutional, and it undermines law enforcement by undermining the confidence that people can have in law enforcement.” I guess the LAPD missed the memo.