Linda Loubert, Discrimination in Education Funding2005 The Rev. of Black Pol. Econ.,available at http://www.radicalmath.org/docs/DiscriminationEdFunding.pdf.
Looks at unconscious thread that continues to perpetrate/penetrate people's belief system, such that as a society, policies are made that deny/prevent equal education and funding for black students. Shows that today, the evidence of discrimination can be seen in the contrast of run-down, rodent and insect infested school buildings provided for poor black inner city students to the clean, modern buildings provided for white suburban students. It can be found in the contrast of tenure of teachers for each group, or even the amount of money a district provides to the school for books, playgrounds, and/or academic programs.
American Association of Colleges and University, Diversity & Inclusive Excellence Resources, http://www.aacu.org/resources/diversity/index.cfm (last visited Apr. 26, 2011).
Lists resources such as articles, publications, and upcoming forums for discussing improving inclusiveness in education.
Melanie Killen & Adam Rutland, Children and Social Exclusion: Morality, Prejudice and Group Identity (Wiley Blackwell 2011).
This book discusses children’s social behavior and how children will create in and out groups who they either identify with or exclude and how this creates prejudice.
Anthony G. Greenwald, T.Andrew Poehlman, Eric Uhlmann, & Mahzarin Banaji,Understanding and using the Implicit Association Test: III. Meta-analysis of predictive validity, 97 No. 1 J. of Personality and Soc. Psychol. 17(2009), available at http://faculty.washington.edu/agg/pdf/GPU&B.meta-analysis.JPSP.2009.pdf
This article discusses implicit bias and its relationship with biased correlation. It summarizes research conducted to evaluate the validity of the IAT measures. The article concludes that the validity of IAT measures is improved when taken with implicit measure tests.
John M. Darley & Paget H. Gross, A Hypothesis-Confirming Bias in Labeling Effects, 44 J. Personality & Soc. Psychol. 20 (1983).
This Article discusses the way our expectations influence our perceptions and conclusions. The research involved showing participants a video of a 4th-grade female student, Hannah, in two settings, one urban and poor, one suburban and rich appearing and measuring the observers’ expectations as to Hannah’s academic ability. Some participants were also shown a second video where Hannah answered achievement-test type questions. The study showed that when participants did not feel they had much information (just the first video), their expectations as to Hannah’s abilities remained limited, and they preferred not to make judgments. But when they had more information to couple with their first set of expectations (the second video), then their first expectations played out. That is, “a marked expectancy-confirmation effect was evident for those perceivers who evaluated the child after witnessing an ability-relevant performance. Those who believed the child came from a high socioeconomic class reported that her performance indicated a high ability level, whereas those who believed the child came from a low socioeconomic class reported that the identical performance indicated a substantially lower level of ability.”
Christopher L. Aberson, Carl Shoemaker & Christina Tomolillo, Implicit Bias and Contact: the Role of Interethnic Friendships, 144 Humboldt J. of Soc. Psychol. 335 (2004), available at http://www.humboldt.edu/psychology/fs/aberson/jsp%202004.pdf
This Article points to two studies regarding the role of interethnic friendship with African Americans or Latinos in predicting implicit and explicit biases against these groups. White participants completed the Implicit Association Test, several self-report bias measures, and a friendship questionnaire. Overall participants with close friends who were members of the target group exhibited less implicit prejudice than participants without close friends from the target group. Friendship influenced only 2 of the 7 explicit measures, a result that likely stems from social desirability bias rather than truly nonprejudiced attitudes. Results support the importance of contact, particularly interethnic friendship, in improving intergroup attitudes.
Willhem Hoffman, Bertram Gawronski, Tobias Gschwender, Huy Le, Manfred Schmitt, A Meta-Analysis on the Correlation Between the Implicit Association Test and Explicit Self-Report Measures, 31 The Personality and Soc. Psychol. Bulletin (2005) available at, http://faculty.washington.edu/agg/IATmaterials/PDFs/Hofmann%20&%20al%20(PSPB,2005).pdf.
This Article explains that there is a low correlation between the IAT and explicit measures for implicit bias. It explains some reasons for this, such as motivational bias which expresses itself in self-reporting of the explicit tests.
Bertram Gawronski, Etienne P. Lebel and Kurt R. Peters, What Do Implicit Measures Tell Us? Scrutinizing the Validity of Three Common Assumptions,2 Perspectives on Psychol. Sci.181 (2007), available at http://www.psych.utoronto.ca/users/spa/news/data/files/Gawronski_implicit_perspectives_paper.pdf.
The Article addresses the validity of three widespread assumptions in implicit bias research and concludes that the validity of all three assumptions is equivocal and that theoretical interpretations should be adjusted accordingly. The Article provides an alternative conceptualization.
John F. Dovidio, Kerry Kawakami, Craig Johnson, Brenda Johnson and Adiah Howard,On the Nature of Prejudice: Automatic and Controlled Processes,33 J. of Experimental Soc. Psychol., 510 (1997), available at http://www.psych.yorku.ca/kawakami/documents/Onthenatureofprejudice_000.pdf
This Article describes the existence of negative implicit attitudes of Whites toward Blacks. The article investigates the relationship between explicit measures of racial prejudice and implicit measures of racial attitudes, and explores the relationship of explicit and implicit attitudes to race-related responses and behavior by conducting three tests. The article concludes by stating that those aware of their own implicitly biased reactions will be able to control or have a controlled rather than automatic process response to race related stimuli and that participants who find out they have implicit attitudes which are inconsistent with their more egalitarian explicit attitudes are motivated to act against their implicit bias.
Oliver R. Goodenough & Kristin Prehn, A Neuroscientific Approach to Normative Judgment in Law and Justice, 359 Philosophical Transactions: Biological Sciences 1709 (2004), available at http://0-www.jstor.org.cardcatalog.law.unh.edu/stable/4142156.
Exploring questions about normative judgment with explanations rooted in neurobiology.
Sheri Levy & Melanie Killen (ed.), Intergroup Attitudes and Relations in Childhood through Adulthood (Oxford University Press 2008).
This book discusses people’s minority/majority and sex based prejudices through different levels of cognitive development.
Terry A. Maroney, Law and Emotion: A Proposed Taxonomy of an Emerging Field 30 Law and Human Behavior 119 (2006), available at http://0-www.jstor.org.cardcatalog.law.unh.edu/stable/4499465
This Article pronounces that law and emotion intersect. The Article defines and discusses this intersection by creating a taxonomy for different law/emotion based phenomena. The author uses this to determine which of these phenomena it takes to focus legal decision making and understand when implicit emotions are taking over
Laurie A. Rudman, Sources of Implicit Attitudes13 Current Directions in Psychol. Sci.79, (2004), available at http://0-www.jstor.org.cardcatalog.law.unh.edu/stable/20182915.
This Article covers theoretical explanations for why implicit attitudes often differ from explicit or self-reported attitudes. The article also propounds that implicit attitudes which come from four major sources are stronger than the explicit attitudes people consciously hold. Early experience, affective experiences, cultural bias, and cognitive consistency principles all affect implicit attitudes. The article propounds that implicit attitudes are stronger than the explicit attitudes people hold and that wide held cultural “appraisals can bias people’s automatic evaluations irrespective of their personal beliefs.”
Bertram Gawronski & Keith Payne, eds., Handbook of Implicit Social Cognition: Measurement, Theory, and Applications (Guilford Press 2010).
The publisher summarizes the book: “Virtually every question in social psychology is currently being shaped by the concepts and methods of implicit social cognition. This tightly edited volume provides the first comprehensive overview of the field. Foremost authorities synthesize the latest findings on how automatic, implicit, and unconscious cognitive processes influence social judgments and behavior. Cutting-edge theories and data are presented in such crucial areas as attitudes, prejudice and stereotyping, self-esteem, self-concepts, close relationships, and morality. Describing state-of-the-art measurement procedures and research designs, the book discusses promising applications in clinical, forensic, and other real-world contexts. Each chapter both sums up what is known and identifies key directions for future research. This book will be useful to researchers and graduate students in social and cognitive psychology; also of interest to readers in applied contexts, including health, clinical, forensic, consumer, and political psychology. It will also serve as a supplemental text in graduate-level courses in social cognition and psychology research methods.”
Jerry Kang & Kristine Lane, Seeing Through Colorblindness: Implicit Bias and the Law, 58 UCLA L. Rev. 465 (2010).
This Article summarizes the empirical evidence that rejects claims of perceptual, cognitive, and behavioral colorblindness. It then calls on the law to take a "behavioral realist" account of these findings and maps systematically how it might do so in evidence-based ways. The Article also discusses three major objections made against the theory of implicit bias, including objections that the science of implicit bias is “junk Science,” objections asserting that we are too “hardwired” to fight bias and last what the article terms as the “rational” objection. The rational objection contends that the implicit biases actually reflect reality and therefore, it is rational to act based on them.
Anthony Greenwald, Professor of Psychology at the University of Washington, Lecture at the Allen Edwards Psychology Lecture Series at the University of Washington, The Psychology of Blink - Part 1 of 2:Understanding How Our Minds Work Unconsciously (Dec. 1, 2008), available at, http://www.youtube.com/watch?v=xRUs9Ni3Bv8
This lecture on video describes explicit bias as Second level thinking and the IAT as a window into our second level or automatic thoughts.
Lisa Cooper, Washington University, Lecture at the Allen Edwards Psychology Lecture Series at the University of Washington, The Psychology of Blink - Part2 of 2:Understanding How Our Minds Work Unconsciously Lecture at the Allen Edwards Psychology Lecture Series at the University of Washington (Dec. 1, 2008), available at http://www.youtube.com/watch?v=Vx3h332Sd90
Second lecture to go with A. Greenwald’s part 1.
Tim Wise, Color Blind: The Rise of Post-Racial Politics and the Retreat from Racial Equity (City Lights Open Media 2010).
This book focuses on disparities in employment, housing, education, and health care. Wise advocates that the best way toward equality in society is to become more and not less conscious of race and how it affects us.
Cass Sunstein, Behavioral Law and Economics , (Cambridge University Press 2000).
This book presents new findings in cognitive psychology and behavioral economics, which show that people are frequently both unselfish and over-optimistic; that people have limited willpower and limited self-control; and that people are "boundedly" rational, in the sense that they have limited information-processing powers, and frequently rely on mental short-cuts and rules of thumb. Understanding this kind of human behavior has large-scale implications for the analysis of law. Behavioral Law and Economics offers many new insights into these fields and suggestions for legal reform. Available in the UNH School of Law Library.
Robert Post, Anthony Appiah, Prejudicial Appearances: The Logic of American Anti-discrimination Law (Duke University Press 2001).
This book focuses on disparities shaped by stereotypes and how this shapes law.
Justin D. Levinson, Media, Race and the Complicitous Mind, 58 DePaul L. Rev. 599 (2009).
This Article discusses how implicit social cognition impacts death penalty cases and develops two preliminary hypotheses that apply social cognition theory to the capital context: (1) Death Penalty Priming Hypothesis, which posits that the supposedly race-neutral death qualification of jurors unintentionally and automatically elicits implicit racial bias in the final jury panel, and (2) Racial Bias Masking Hypothesis, which proposes that complex empirical studies examining race and the death penalty may unintentionally cover up racial bias because they rely on racially biased case facts.
Chris Guthrie & Jeffrey J. Rachlinski, Insurers, Illusions of Judgment & Litigation, 59 Vand. L. Rev. 2017(2006).
This Article explains that psychological research on litigants' decision-making supports the intuition that most litigants fail to evaluate their options in a cool, clear fashion or to select those options that promise the greatest return. This research reveals that litigants are susceptible to anchoring effects and self serving bias.
The Article explains that both lawyers and judges have been shown to suffer from some of the same kinds of cognitive errors that affect litigants while insurers (who are involved in almost all liability litigation) are less susceptible to these errors. The Article’s data suggest that insurers might have developed cognitive skills that enable them to avoid many common errors in judgment that appear to plague other actors during the litigation process.This may provide some ways to lessen bias by creating the same situations that enable insurers to make more rational decisions.
Justin D. Levinson, Huajian Cai and Danielle Young, Guilty by Implicit Racial Bias: The Guilty/Not Guilty Implicit Association Test, 8 Ohio St. J. Crim L. 187 (2010).
This Article provides an overview of IAT tests and finds that implicit associations affect legal decision making. Unequivocally the answer was yes. Some studies showed that participants held implicit associations between Black and Guilty compared to White and Guilty, and that these associations predicted mock-juror evaluations of ambiguous evidence.
Elizabeth Neeley, Racial and Ethnic Bias in the Courts: Impressions for Public Hearings, 40. Am. Judges Ass’n Court Rev 26 (2004), available at: http://ppc.nebraska.edu/userfiles/file/Documents/projects/IndigencyScreenerProject/RacialEthnicBiasintheCourts.pdf
This Article provides useful data on the perspectives of some minority groups about the courts as reported by minorities at a public hearing.
Solangel Maldonado, Discouraging Racial Preferences in Adoption, 39 U. C. Davis L. Rev. 1415(2006).
This Article discusses how implicit bias impacts adoption preferences and draws on cognitive bias literature in discussing and debunking myths about domestic and international adoptions. This Articles focus is geared at reaching people involved in adoption and adoption law professionals; however, it also provides another insight into another aspect of society impacted by implicit bias.
Anthony G. Greenwald & Linda Hamilton Krieger, Symposium on Behavior Realism: Implicit Bias: Scientific Foundations94 Cal. L. Rev. 945 (2006).
This Article debunks the assumption that human behavior is largely under conscious control and discusses theories of implicit bias. It also explains that understanding implicit bias measures is significantly better in predicting discriminatory behavior than understanding explicit bias factors.
Linda Hamilton Krieger, The Content of Our Categories: A Cognitive Bias Approach to Discrimination and Equal Employment Opportunity,47 Stan. L. Rev. 1161 (1995).
In this Article, Krieger argues that the way in which Title VII jurisprudence constructs discrimination is inadequate to address the subtle and most prevalent discrimination, that is, unconscious forms of bias. She examines cognitive bias in four parts. First, the analytical structure of Title VII’s disparate treatment model and the rhetoric courts employ in analyzing disparate treatment cases. Second, explores empirical and theoretical research in cognitive social psychology. Third, she examines the consequences of what the research reveals, that the assumptions used to create the Title VII jurisprudence are no longer true. Last she searches for solutions to this problem.
Nancy Levit, Confronting Conventional Thinking: The Heuristics Problem in Feminist Legal Theory, 28 Cardozo L. Rev. 391 (2006).
Christine Jolls & Cass R. Sunstein, The Law of Implicit Bias, 94 Cal. L. Rev. 909,969-82 (2006).
Recognizing the findings regarding unconscious bias and that at least some of the time, decisionmakers act in accord with their biases, the Article focuses on ways that current law can operate to control against implicit bias and might be expanded to a strategy of “debiasing through law.” In particular the Article discusses antidiscrimination laws, prohibitions against hostile environments, actions of employers seeking to avoid vicarious liability by displaying positive exemplars, and affirmative action policy in this context. Antidiscrimination laws are themselves reviewed as an example; by increasing diversity in various environments (through application of antidiscrimination laws), one can expect a reduction in implicit bias in those places, assuming that bias was based on an error in fact rather than an accurate perception.
Jerry Kang, Trojan Horses of Race, 118 Harv. L. Rev. 1489 (2005).
This Article starts with illustrations from current research and paints this image: “implicit racial meanings have simply attached like barnacles since our infancy.” Kang discusses various consequences of these perceptions. He reviews implicit bias research and law and sets an “intellectual agenda” to explore this information further. The Article also offers a focus on the implications of the Federal Communications Commission order regarding broadcast ownership to increase local news, news which the author observes includes violent crimes “prominently featuring racial minorities” and which “the social cognition research suggests, exacerbates our implicit biases.” This is where the title of the Article lies: watching the local news is seen as the equivalent of downloading a Trojan horse virus that then increases implicit bias.
Jerry Kang, Implicit Bias: A Primer for Courts (National Center for State Courts August 2009), available at http://aja.ncsc.dni.us/conferences/2010Annual/SpeakerMaterials/17%20-%20Lowenbach%20and%20Gardner%20ImplicitBiasPrimer%20-%20Kang.pdf.
This piece is part of the National Campaign to Ensure the Racial and Ethnic Fairness of America's State Courts and, as its name suggests, offers a short informational primer on terminology and issues of implicit bias: 1) Schemas and Implicit Cognitions (or “mental shortcuts”) or as author describes it "thoughts about people you didn’t know you had”); Stereotypes and attitudes; implicit bias as including implicit stereotypes and attitudes; and implicit bias measuring devices. Kang comments on the pervasiveness of implicit bias that “it ain’t no accident,” that bias is everywhere but varied. Article ends with a discussion on research of real-world consequences, i.e. why we should care. [This is Part of materials developed/tested by National Council of State Judges in their toolbox for judiciary on bias.]
Jerry Kang & Mahzarin R. Banaji, Fair Measures: A Behavioral Realist Revision of Affirmative Action, 94 Calif. L. Rev. 1063 (2006).
This excerpt from the Article explains its title and offers an overview: “[E]vidence from hundreds of thousands of individuals across the globe shows that (1) the magnitude of implicit bias toward members of outgroups or disadvantaged groups is large, (2) implicit bias often conflicts with conscious attitudes, endorsed beliefs, and intentional behavior, (3) implicit bias influences evaluations of and behavior toward those who are the subject of the bias, and (4) self, situational, or broader cultural interventions can correct systematic and consensually shared implicit bias. Specifically, the science of implicit social cognition (ISC) can help us revise the very meaning of certain affirmative action prescriptions by updating our understanding of human nature and its social development. Second, and closely connected, we update the scientific case for the mismeasurement of merit ISC suggests experimenting with debiasing mechanisms different from the traditionally recommended peer-to-peer social contact; potential techniques include self-propelled attitude makeovers, mental "contact" through imagery, and exposure to debiasing agents. A nomenclature clarification: although we use the term ‘affirmative action,’ we find it too freighted to be analytically useful. As we make specific recommendations based on our analysis of ISC, we employ where possible a different term, ‘fair measures. (1083-84)
Russell K. Robinson, Perceptual Segregation, 108 Colum. L. Rev. 1093, 1134 (2008).
This Article discusses not only perception of “other” race, but of how race influences perception. Robinson describes “pervasive racial differences in perceiving” allegations of discriminatory behavior: “A reasonable outsider might perceive discrimination based on facts that would not persuade a reasonable insider.” That is, “White employees may feel that the employer has created a racially diverse workforce so long as there are a handful of visible people of color. Blacks, by contrast, might view the few people of color as tokens …”
Hon. Mark W. Bennett, Unraveling the Gordian Knot of Implicit Bias in Jury Selection: The Problems of Judge-Dominated Voir Dire, the Failed Promise of Batson, and Proposed Solutions, 4 Harv. L. & Pol’y Rev. 149 (2010).
This Article begins with a startling story the Reverend Jesse Jackson once told an audience, "'There is nothing more painful to me at this stage in my life than to walk down the street and hear footsteps and start thinking about robbery . . . . Then look around and see somebody white and feel relieved.'“ The Article discusses Jackson's observation which reflects an unfortunate but often held belief, one that even a famous and deeply committed national civil rights leader cannot escape, implicit bias. The Article explains what implicit bias is and how this affects the justice system during jury selection and in judicial bias situations. The Article also suggests that training and cognitive correction can help empower a person to refuse to act upon implicit bias.
Legal. General. Antidiscrimination & Strategy
Charles R. Lawrence III, The Id, the Ego, and Equal Protection: Reckoning with unconscious Racism, 39 Stan. L. Rev. 317, 324-25 (1987).
The summary of this classic article provides: “Traditional notions of intent do not reflect the fact that decisions about racial matters are influenced in large part by factors that can be characterized as neither intentional -- in the sense that certain outcomes are self-consciously sought -- nor unintentional -- in the sense that the outcomes are random, fortuitous, and uninfluenced by the decisionmaker's beliefs, desires, and wishes. Americans share a common historical and cultural heritage in which racism has played and still plays a dominant role. Because of this shared experience, we also inevitably share many ideas, attitudes, and beliefs that attach significance to an individual's race and induce negative feelings and opinions about nonwhites. To the extent that this cultural belief system has influenced all of us, we are all racists. At the same time, most of us are unaware of our racism. We do not recognize the ways in which our cultural experience has influenced our beliefs about race or the occasions on which those beliefs affect our actions. In other words, a large part of the behavior that produces racial discrimination is influenced by unconscious racial motivation. By insisting that a blameworthy perpetrator be found before the existence of racial discrimination can be acknowledged, the Court creates an imaginary world where discrimination does not exist unless it was consciously intended."
Eugene Sadler Smith, Inside Intuition (Routledge 2008).
This book calls implicit cognition intuition. It describes it as our “gut feelings” and describes the social and cognitive science beyond gut reactions or decision-making, the book aims at showing the reader how to maximize their gut feelings to make better use of intuition and harness it for decision making.
Objection to Def. Motion for Services Other than Counsel Expert on Unconscious Racial Bias, State of New Hampshire v. Addison, No 07-S-0254 (Hillsborough N. D. Jan. 30, 2008), available at http://www.courts.state.nh.us/caseinfo/pdf/addison/2008/jan/013008AddisonStsObjMoServicesExprtRaclBias.pdf
Eva Paterson, Kimberly T. 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).
The Article discusses unconscious bias and institutionalized discrimination in the context of developing a theory and strategy to change intent requirements to address this kind of bias successfully using Equal Protection doctrine.