February 17, 2020

CROWN Act, more: Untangling implicit bias, one strand at a time

Kimberly Norwood, the Henry H. Oberschelp Professor of Law at the Washington University School of Law in St. Louis, remembers getting her hair straightened as a child. Using sound effects to describe the hot metal comb gliding through her strands, she called the process debilitating because children often couldn’t play outside afterward, fearing that humidity, sweat or water would revert their hair to an afro or natural curl pattern.

Norwood was among a panel of lawyers at the ABA Midyear Meeting in Austin, Texas, that discussed implicit bias within employment, educational, criminal justice and social structures.

“Implicit Bias: Governmental Complicity,” part of the Defending Liberty Pursuing Justice Summit primarily focused on the new CROWN Act, which calls for the end of black hair discrimination. CROWN – which stands for Creating a Respectful and Open World for Natural Hair – is the law in California, New York and New Jersey. Another 22 states have introduced the legislation.

Norwood was optimistic about states implementing the new law. “Three states down, 47 to go,” she said.

Norwood said people are being fired, not hired, and suspended and expelled from school because their hair grows out of their scalp in a tightly curled pattern.

She shared examples of African-American children who were not allowed to attend school and adults whose jobs were jeopardized because of their hairstyle. Among them is Texas student Deandre Arnold, who was suspended for having locks and told he would have to cut them before being allowed to attend prom or graduate. Recently, he attended the Academy Awards with filmmaker Matthew Cherry, who won an Oscar for his animated short, “Hair Love,” which sheds light on an African-American father learning how to care for his daughter’s hair.

Norwood encouraged attendees to find out the status of the CROWN Act in their state, sign the petition and write their representatives about it. She said everyone should do what they can to “stop this strand of race discrimination.”

Sharing a picture of how the hair grows out of the scalp of an African American, Norwood noted, “The hair grows out of the scalp, not down,” she said, emphasizing the word, “out.” She added, “This is important because some policies say you have to wear your hair down. That’s a problem. That means you have to do something to make it lay down.

“In order to comply with many of your employer and school policies, a change in hair texture is going to have to occur,” Norwood said.

Hair biases thrive because they require subjectivity, she said. Norwood provided numerous examples of children around the country who have been suspended or expelled because of hair policy violations, some of which said children would need to straighten their hair before returning to school.

Norwood explained that straightening of African-American hair requires using a chemical. “Lye is in Drano,” she said. “Let’s just be real about this.” Hair straightening is also expensive and causes hair loss.

Panelist Sarah E. Redfield, professor emerita at the University of New Hampshire School of Law, surveyed the audience and found most had taken a bias test before. One of the most popular tests is the Harvard Implicit Bias Test. “Everybody is surprised by the results,” Redfield said, adding, “Once you become aware, then it’s time to start thinking about small and large things you can do about it.”

Rhonda Hunter, a trial lawyer in Dallas, shared what she’s experienced in the courts regarding implicit bias.

“Implicit bias manifests itself through those people who are in positions of authority,” she said.

Everyone has unconscious biases that originated from the environments in which they grew up, which includes the influence of marketing and the media, Hunter said.

“We’re bombarded with images that perpetuate lies,” Hunter said. “They’re what I call micro messages that we might not be conscious that we’re internalizing.”

She homed in on this point by sharing headlines and the pictures that accompanied two news stories. She pointed to one on the left about white students, with the headline, “Three University of Iowa wrestlers arrested; burglary charges pending.” Another story on the right about four African-American young men read, “Coralville Police Arrest Four in Burglary Investigation.”

“Virtually the same headline, but look at the message,” Hunter said. “On the left, you’ve got the school yearbook pictures; on the right, you’ve got their mug shots. The images are completely divergent, and we have these images reflected over and over and over and over again, and if we’re not conscious of what we’re seeing and the effect it may have on us, then we may not realize that we may be acting unconsciously because of the messaging that we get.”

Disproportionalities exist in the government from the child welfare system to housing to Social Security, Hunter said. “Face it, it’s throughout the government,” she said. “So, we presume that decision makers are not malicious in their actions, but they are allowing their unconscious biases to affect their decisions, like an automatic reflex,” Hunter added.

Those who work in government should be aware that they have been receiving messages their whole lives, she warned. “That may be leading to unconscious decisions … that perpetuate the disproportionality in the government.”

Hunter encouraged people to work on their biases and not to let them “creep” into their decision-making.

C. Elisia Frazier, managing deputy city attorney for the City of Atlanta Department of Law, moderated the program, which was sponsored by the ABA Section of State and Local Government Law.