Implicit Bias Task Force

Affiliations

Many organizations and individual researchers are working on issues of implicit bias; and many of them are associated with various aspects of the legal system. Listed here are three major actors in this arena, whose work has been primary and inspirational.

A. National Center for State Courts

The National Conference for State Courts (NCSC) has an ongoing project to help courts address implicit bias. In Phase I of this project the NCSC resulted in a national listserv of contacts in 49 states and 3 territories to exchange and cumulate information on the topic as well as a compilation of promising practices to achieve “racial and ethnic fairness” in the judicial workforce, in courtroom behaviors, in disparities in cases such as those involving crime or family issues, in availability of access for those with limited English capabilities, and in securing diverse juries.  

B. Equal Justice Society

The Equal Justice Society is working “to redefine discrimination and promote equal opportunity through legal, legislative, and policy advocacy and also through developing the next generation of legal advocates.” Related to implicit bias, they describe their work and strategy, in part, as follows:

As a result of the 1976 Supreme Court decision, Washington v. Davis, U.S. Supreme Court jurisprudence requires plaintiffs to prove a perpetrator’s discriminatory “intent” in order to prove an anti-discrimination claim. However, because contemporary discrimination is frequently structural in nature, unconscious, and/or hidden behind pretexts (despite the fact that a tangible harm has resulted from their actions), the showing of “intent” becomes a near impossible burden for plaintiffs to prove.

To address this problem, EJS has successfully facilitated the incorporation of the cognitive science theory of “implicit bias” (also known as “unconscious bias”) into both litigation and public policy discourse surrounding discrimination law. “Implicit bias” challenges the common perception and legal fallacy that discrimination solely results from intentionally malicious attitudes and actions – instead postulating that all of us, regardless of gender, race, or background have cognitive biases that can influence our perceptions and decisions relative to others around us.

To see Reggie Shuford, EJS Director of Law and Policy talking about the EJS approach and strategy, you can review his lecture on Implicit Bias and the Law at Berkeley Law’s Ruth Chance Mondays at http://www.equaljusticesociety.org/2010/10/reggie-shuford-talks-about-implicit-bias-and-the-law-at-berkeley-laws-ruth-chance-mondays/.

C. ABA Building Community Trust: Improving Cross-Cultural Communications in the Criminal Justice System

This is a resource developed by the American Bar Association Criminal Justice Section and cosponsored by the ABA Section of Individual Rights and Responsibilities and the ABA Council on Racial and Ethnic Justice. This resource was funded by the American Bar Association Board of Governors Enterprise Fund. The Building Community Trust materials were developed to “attempt to shed light upon and equip actors in the criminal justice field to address the disparate racial impact of the system.” As the materials themselves note, they do not claim to treat the topic exhaustively, but rather were developed for education and training. The Section of Litigation Toolbox has incorporated some of the Building Community Trust materials and expresses its enormous respect and gratitude for the extensive work of its sister sections on this important topics.