Brown v. Board of Education is a landmark U.S. Supreme Court case from May 17, 1954, taught across the country. Known for ending the "separate but equal" doctrine of Plessy v. Ferguson, it began the long process of desegregation in our nation's public schools. This case has undoubtedly helped to eliminate some of the overt racial discrimination in our country.
But what if the historic ruling—rightfully lauded for terminating much of the overt discrimination of segregation—also had negative racial implications? What if, for example, integrating student populations of public schools also negatively impacted the racial makeup of the teacher workforce, the effects of which are still being felt in the 63 years since that ruling? According to best-selling author Malcolm Gladwell, critical examination of the impact of the Brown ruling and its aftereffect reveal a striking example of implicit bias, disproportionately affecting black schoolchildren in all aspects of their public education, including discipline, disabilities, and gifted program opportunities.
What Is Implicit Bias?
Implicit bias, also known as implicit social cognition, is influenced by attitudes and stereotypes that we all hold based on our experiences. Implicit bias influences how we act in a subconscious way, even if we renounce prejudices or stereotypes in our daily lives. The Kirwan Institute for the Study of Race and Ethnicity at Ohio State University explains that these biases are favorable and unfavorable assessments deep in our subconscious, and we tend to favor our own ingroup—the social group to which we psychologically identify as belonging—though some research indicates that we can disfavor our own ingroup instead.
Evelyn Carter, a social psychologist at the University of California, Los Angeles, describes bias as follows: "Bias is woven through culture like a silver cord woven through cloth. In some lights, it's brightly visible. In others, it's hard to distinguish. And your position relative to that glinting thread determines whether you see it at all." Jessica Nordell, "Is This How Discrimination Ends?," Atlantic (May 7, 2017).
There are many ways to test your implicit bias as it relates to race, gender, disability, or sexual preference. The Implicit Association Test (IAT) is a common tool that is available on Harvard University's website, created by Project Implicit. There are many different tests available on the website to assist you in determining what implicit biases you hold.
The problem does not lie in the fact that we all have implicit biases. Rather, as Jessica Nordell explains in an article in the Atlantic, the struggle lies in how one overcomes and prevents discrimination or discriminatory practices. Nordell cites Patricia Devine, psychology professor and director of Prejudice Lab:
Trying to ignore these differences, Devine says, makes discrimination worse. Humans see age and gender and skin color: That's vision. Humans have associations about these categories: That's culture. And humans use these associations to make judgments: That, Devine believes, is habit—something you can engage in without knowing it, the way a person might nibble fingernails down to the bloody quick before realizing they are even doing so.
How Does Implicit Bias Impact Our Schoolchildren?
The term "school-to-prison pipeline" is a key issue facing many school districts, and implicit bias plays a large role.
In an episode of Gladwell's Revisionist History podcast, "Miss Buchanan's Period of Adjustment," he explores the implications of Brown v. Board of Education. Gladwell suggests that while Brown's decision was significant in terms of starting the long process of desegregation in public schools and, arguably, setting off the civil rights movement, there was a major unintended consequence that has largely remained underexplored. As student populations merged, the teaching workforce did as well. When administrators were tasked with staffing the newly integrated schools from a newly integrated workforce, white teachers were routinely kept on at the expense of African American teachers. As such, nearly an entire workforce of black teachers who had previously staffed the segregated black schools lost their jobs in large part due to discriminatory reasons.
Rosemarie Allen, lecturer of Early Childhood Education at the Metropolitan State University of Denver, explains that many black educators were discriminated against as a result of white parents voicing concern over black educators teaching their children in the newly desegregated schools. Black educators were largely replaced by white, middle-class educators who did not necessarily understand the students of color in the classroom. As a result, Allen theorizes that this has caused the current trends we see now, where black schoolchildren are disproportionately impacted negatively in the education system. Bryan Dewan, "New Research Shows Connection Between Race and Early Childhood Suspensions," ThinkProgress (Mar. 24, 2016).
Not only has the ripple effect of black educators leaving impacted school discipline, as Allen's dissertation "Preschool-to-Prison Pipeline" suggests, but it also has impacted other areas of education. It has negatively impacted black schoolchildren receiving assistance or services for disabilities as well as getting screened for or referred to gifted programs.
Discipline. In March 2014, the U.S. Department of Education Office for Civil Rights published data and statistics about school discipline, based on information collected from the 2011–2012 academic year of public schools across the nation. Here is a snapshot of some of the most startling statistics:
Black children represent 18 percent of preschool enrollment but 48 percent receive more than one out-of-school suspension, while white students represent 43 percent of preschool enrollment and only 26 percent of out-of-school suspensions.
Black students are suspended and expelled three times more than white students.
Students with disabilities are more than twice as likely to receive an out-of-school suspension at 13 percent versus students without disabilities at 6 percent.
Black students represent 16 percent of student enrollment but account for 27 percent referred to law enforcement and 31 percent subjected to a school-related arrest.
In 2014, the Kirwan Institute evaluated disparities in discipline in Ohio's public schools by analyzing data from 2005–2013. One of the findings is that there is a predominantly white teacher workforce that does not match the more diverse schoolchildren population. As a result, implicit bias is activated, impacting differences in discipline being applied to schoolchildren. It is worth noting here that while many studies and data show that white teachers more harshly discipline black students, studies are beginning to look at whether black teachers sometimes disfavor their own ingroup. While that research is still new, there is at least one recent study from the Yale Child Study Center that evaluated black and white preschool teachers and found that black teachers also have implicit biases that influence administering discipline.
Many schools developed zero-tolerance policies after a spike in juvenile crime in the 1990s. These zero-tolerance policies began adding law enforcement in schools on a daily basis and ended up doubling suspensions and expulsions. Black schoolchildren are disproportionately affected as they are three times as likely as their white counterparts to be suspended or expelled from school for the same infractions. Karen Dolan, "How the Assault at Spring Valley High Brutally Demonstrates the 'School-to-Prison Pipeline,'" Alternet (Oct. 29, 2015). Additionally, over 70 percent of schoolchildren referred to law enforcement agencies for school-related incidents are black or Latino.
The impact that school discipline has on schoolchildren is devastating. A single suspension in the first year of high school doubles the dropout chance for that child. Children who are expelled are three times more likely to end up in the juvenile justice system. Once caught within the juvenile justice system, the psychological and economic consequences can have a lasting and burdensome impact on children while simultaneously decreasing their educational and financial opportunities, and increasing the chances of reincarceration. Incarcerated youth are nearly 70 percent more likely to be in jail again by age 25 than youth who were not referred to juvenile detention. Dolan, supra.
Disabilities. The U.S. Department of Education Office for Civil Rights 2014 snapshot regarding students with disabilities summarizes its findings:
The [Civil Rights Data Collection] reveals that students with disabilities are subject to physical and mechanical restraint and seclusion at rates that far exceed that of other students, and black students with disabilities are subject to mechanical restraints at even higher rates than other students with disabilities. Mechanical restraint is the use of any device or equipment to restrict a student's freedom of movement. Physical restraint is a personal restriction that immobilizes or reduces the ability of a student to move his or her torso, arms, legs, or head freely. Seclusion is the involuntary confinement of a student alone in a room or area that the student is physically prevented from leaving.
This snapshot shows that black students represent 19 percent of students with disabilities served by the Individuals with Disabilities Education Act, but 36 percent of these students who are subject to mechanical restraint.
Gifted programs. An article published in January 2016 in the American Educational Research Association's AERA Open journal evaluated voluminous data from the National Center for Educational Statistics showing that black and Latino schoolchildren are less likely to be screened for gifted programs in public schools than white and Asian schoolchildren. The study suggests that the race of the teacher could be impacting the racial composition of students in gifted programs, mainly because teachers can identify students to be screened for the gifted program. For black schoolchildren, they are three times more likely to be assigned to gifted services if they have a black teacher.
The study acknowledges that there could be many different factors impacting the referral of a child to a gifted program. These factors include students behaving or performing differently depending on whether their teacher is their own race; students/parents actively engaging with the gifted process depending on whether the teacher is their own race or not; and teacher implicit bias impacting their subjective decisions to refer students for screenings for gifted programs.
The researchers conclude that all or none of these could be factors that explain why black schoolchildren are not referred to gifted programs; however, having a teacher of their same race clearly has the most positive impact on referrals to gifted programs. This is particularly concerning because 80 percent of black elementary schoolchildren are taught by teachers who are not their same race.
How Do We, as Advocates, Help Children Overcome Implicit Bias They Face?
The American Bar Association has been doing its part to combat implicit bias across all facets of the legal profession. There have been CLEs and materials published in recent years discussing implicit bias and its wide-ranging impacts on our profession. The trainings and materials assist lawyers in identifying implicit bias not only in hiring practices, retention, and advancement, but also in how we practice and represent our clients. Among these many materials, there are some key points that can be employed in our own advocacy.
The first step in overcoming implicit bias is to identify and acknowledge the bias. The next step is to stop the bias while it is occurring. The third step is taking action to change the bias. Studies have shown that we all have implicit bias as it is part of our subconscious and everyday life. We need to acknowledge that bias in ourselves through self-awareness. Next, we need to question ourselves when one of our own stereotypes manifests itself and replace it by asking ourselves to look at the situational circumstances that could have impacted a person's behavior rather than our stereotype that we hold. We need to change our prejudiced habits by asking questions and engaging with others who are different from us.
Practically speaking, when representing children, it is important to remember these tips:
Listen to understand.
Ask questions.
Show empathy.
Recognize your own bias, and question your assumptions.
The overwhelming data shows that black schoolchildren are disproportionately impacted in schools. As we represent schoolchildren, we should all be mindful that their race and the race of their teachers could be impacting what is happening to them in school—whether they are getting a severe punishment for a seemingly innocuous infraction, being screened appropriately as disabled entitled to services, or being screened for gifted programs.
Regardless of the reason why the client came to you for services, attorneys should keep in mind that implicit bias may have impacted why the client seeks counsel in the first place. The attorney should conduct a thorough and complete investigation into the client's school experience to determine whether the child has been impacted negatively in any aspects of his or her schooling. Effective advocacy at the school level with the client's teachers and school personnel can have positive impacts on the client's schooling going forward. That advocacy can include being sure to humanize the client to the school staff to ensure they are truly seeing the child before them clearly, rather than through their own biases.
We have come a long way in the 63 years since Brown v. Board of Education was decided. Yet a critical examination reveals a bittersweet legacy. There is still much work to be done to achieve equality. One place to start is to make an explicit effort to confront implicit bias.