Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Sunday, March 14, 2021

Revisiting – and Reconsidering – Implicit Bias

Many academic institutions, professional organizations, and private corporations have embraced implicit bias training as a method by which to combat discrimination. The concept of implicit bias states that all individuals harbor unconscious biases that lead to, among other things, discrimination and the unequal treatment of individuals based on race. Although certainly well-intentioned (eradicating discrimination is a moral imperative), empirical studies suggest that: (1) the Implicit Association Test (IAT), which is used to detect individuals’ implicit biases, is flawed; (2) there is a weak correlation between implicit biases and biased behavior; and (3) few, if any, attempts have been made to quantify the degree to which implicit bias, particularly in light of explicit biases, impacts behavior.

 1.    The Implicit Association Test is Flawed

Some scholars and commentators have relied on the Implicit Association Test (IAT) to diagnose an individual’s implicit biases. The problem is that the IAT is flawed in many respects.

To begin with, the IAT sets arbitrary cutoff scores to determine whether an individual’s responses reveal implicit biases, yet fails to provide any assessments of the differences, if any, between the many individuals who score above or below those cutoffs.[1] Additionally, IAT scores are arguably context-dependent, as the IAT produces different results for individuals when they complete the test multiple times.[2] Furthermore, the IAT fails to meaningfully distinguish between implicit and explicit bias. As one scholar explains, “the IAT provides little insight into who will discriminate against whom, and provides no more insight than explicit measures of bias.”[3] One commentator states as follows:

The IAT is impacted by explicit attitudes, not just implicit attitudes … It is impacted by people’s ability to process information quickly on a general level. It is impacted by desires to want to create a good impression. It is impacted by the mood people are in. If the measure is an amalgamation of many things (one of which is purportedly implicit bias), how can we know which of those things is responsible for a (weak) correlation with behavior?[4]

To be sure, one scholar acknowledged that “what we don’t know is whether the IAT and measures like the IAT can predict behavior over and above corresponding questionnaires of what we could call explicit measures or explicit attitudes.[5]

2.    Neither the Implicit Association Test Nor The Presence of Implicit Bias Reliably Predicts Biased Behavior

Empirical studies suggest that implicit biases do not predict biased behavior. Indeed, one researcher acknowledged that the IAT “cannot predict behavior at the level of an individual.”[6]  In fact, the evidence shows precisely the opposite:

Researchers from the University of Wisconsin at Madison, Harvard, and the University of Virginia examined 499 studies over 20 years involving 80,859 participants that used the IAT and other, similar measures. They discovered two things: One is that the correlation between implicit bias and discriminatory behavior appears weaker than previously thought. They also conclude that there is very little evidence that changes in implicit bias have anything to do with changes in a person’s behavior. These findings, they write, "produce a challenge for this area of research.[7]

Additionally, researchers recently “examined 63 studies that explicitly considered a link between changes in bias and changes in actions … [but] they found no evidence of a causal relationship."[8] Put simply, very few, if any, sociological or psychological studies have established with any degree of reliability that implicit bias directly or proximately caused biased, or discriminatory, behavior. As one social psychologist explains:

Almost everything about implicit bias is controversial in scientific circles. It is not clear, for instance, what most implicit bias methods actually measure; their ability to predict discrimination is modest at best; their reliability is low; early claims about their power and immutability have proven unjustified.[9]

This is not to say, of course, that implicit bias does not exist, or that it does not have a material impact on biased behavior. It is to say, however, that the IAT – and evidence supporting a connection between implicit bias and biased behavior – is, at best, premature and, at worst, untenable. As two prominent scholars explain:

[M]uch murkiness surrounds (a) the proper causal explanation for alleged IAT effects, (b) the psychological meaning of IAT scores, (c) the statistical generality and potency of alleged relations between IAT scores and actual behavior, and (d) boundary conditions on alleged IAT effects.[10]

What’s more, even where researchers have claimed to reduce implicit biases, they found no concomitant reduction in biased behavior. That fact alone should cause scholars who have championed implicit bias to think that, just maybe, they have jumped the proverbial gun.

3.    Few, If Any, Attempts Have Been Made to Quantify Implicit Bias’s Impact on Biased Behavior

Assuming arguendo that implicit bias impacts biased behavior, scholars have made little, if any, attempt to quantify implicit bias’s impact on biased behavior. For example, is implicit bias responsible for 5%, 10%, 20%, or 50% (or more) of biased behaviors? This is particularly problematic given that the presence of other factors, such as explicit biases and prejudices, directly impact biased decision-making. This flaw should not be surprising. After all, if implicit bias is the product of unconscious – and thus involuntary – actions, it would appear difficult for researchers to credibly claim that they possess the ability to reliably measure and quantify a phenomenon that resides outside of their conscious awareness. But without attempting to do so, reliance on implicit bias as a predictor of biased conduct raises more questions than answers.

The research cited above is merely a sample of the articles that have cast doubt on the nexus between implicit bias and biased behavior. To be sure, the point of this article is not to say that implicit bias bears no relationship to biased behavior. It is to say, however, that the evidence for such a relationship is inconclusive, contested, and, quite frankly unpersuasive. As such, the adoption of programs in universities and corporations that strive to educate students and employees on the allegedly negative effects of implicit bias is, at best, premature and, at worst, misguided. What’s more, relevant research has produced “little evidence that implicit bias can be changed long term, and even less evidence that such changes lead to changes in behavior.”[11]

Ultimately, eradicating discrimination, addressing inequality, and ensuring equal opportunity are moral imperatives. The question, however, is how best to do that.

 

[1] See Azar, B. (2008). IAT: Fad or Fabulous. American Psychological Association. Retrieved from: https://www.apa.org/monitor/2008/07-08/psychometric.

[2] See id.

[3] Bartlett, T. (2017). Can We Really Measure Implicit Bias? Maybe Not. Retrieved from: https://www.chronicle.com/article/Can-We-Really-Measure-Implicit/238807.

[4] Lopez, G. (2017). For Years This Popular Test Measured Anyone’s Racial Bias. But It Might Not Work After All. Retrieved from: https://www.vox.com/identities/2017/3/7/14637626/implicit-association-test- racism.

[5] Id.

[6] Lee Jussim, Mandatory Implicit Bias Training is a Bad Idea (2017), available at: https://www.psychologytoday.com/us/blog/rabble-rouser/201712/mandatory-implicit-bias-training-is-bad-idea.

[7] Bartlett, supra note 3, retrieved from: https://www.chronicle.com/article/Can-We-Really-Measure-Implicit/238807.

[8] Brandie Jefferson, Change the Bias, Change the Behavior? Maybe Bot (Aug. 2019), available at: https://source.wustl.edu/2019/08/change-the-bias-change-the-behavior-maybe-not/

[9] Jussim, supra note 6, available at:  https://www.psychologytoday.com/us/blog/rabble-rouser/201712/mandatory-implicit-bias-training-is-bad-idea.

[10] Gregory Mitchell & Philip Tetlock, Antidiscrimination Law and the Perils of Mindreading. 67 Ohio St. L. J. 1023- 1121 (2006).

[11] University of Arkansas, Research Questions Link Between Unconscious Bias and Behavior (July 2019), available at: https://www.sciencedaily.com/releases/2019/07/190701144324.htm.

March 14, 2021 in Current Affairs, Law School, Legal Ethics, Legal Profession, Science | Permalink | Comments (0)

Saturday, December 7, 2019

Implicit Bias: Does It Have Any Relationship to Biased Behavior?

In recent years, social scientists have demonstrated that all individuals likely harbor implicit, or unconscious, biases. Additionally, based on empirical research, some scholars contend that laws or policies that disparately impact marginalized groups result, at least in part, from implicit biases. Other studies suggest that certain behaviors, such as statements reflecting subtle prejudice against marginalized groups (e.g., microaggressions) result from implicit biases. As a result, many organizations in the public and private sector have instituted training programs that focus on implicit bias, its allegedly deleterious effects, and the methods by which to alleviate such bias in, for example, the hiring and promotion of employees or admission of applicants to universities throughout the United States. And researchers at Harvard University have developed the Implicit Association Test (IAT), which purportedly measures the degree to which an individual harbors implicit biases in a variety of contexts, including those affecting traditionally marginalized groups.

Certainly, striving to eradicate biases that produce discriminatory or disparate impacts on individuals or groups is a moral and legal imperative; discrimination in any form is intolerable and contravenes the guarantee that citizens of all backgrounds enjoy liberty, equality, and due process of law.

But does implicit bias actually – and directly – correlate with biased behavior?

Recent research in the social sciences suggests that the answer to this question remains elusive and that the effect of implicit bias on biased behavior may not be as significant as previously believed.

To begin with, there is a general consensus among scholars that implicit bias exists. Put simply, all individuals, regardless of background, arguably harbor implicit biases or prejudices. Importantly, however, the distinction between implicit and explicit bias is difficult to ascertain and operationalize. In other words, how can researchers claim with any degree of confidence that discriminatory behaviors or policies that, for example, disparately impact marginalized groups are the product of implicit rather than explicit bias? Currently, there exists no reliable and objective criteria to make this distinction.

Furthermore, if, as some researchers contend, implicit bias resides outside of consciousness, it would seem difficult, if not impossible, to remedy the effects of such bias. After all, if we cannot be aware of these biases, how can we regulate their manifestation in particular contexts? Also, how can researchers reliably claim that implicit bias predicts biased behavior if not a single person, including researchers, can be aware of its presence and influence? This is not to say, of course, that individuals are unable to develop an increased awareness of the explicit biases that they harbor and take steps to minimize the effect of such biases on their behaviors. It is to say, though, that the relationship between implicit bias and biased behavior remains uncertain, and that there is no method by which to quantify the effect of implicit bias on biased behavior given the presence of other relevant factors (e.g., explicit bias).

Moreover, recent research suggests that the correlation between implicit bias and biased behavior is dubious:

Researchers from the University of Wisconsin at Madison, Harvard, and the University of Virginia examined 499 studies over 20 years involving 80,859 participants that used the IAT and other, similar measures. They discovered two things: One is that the correlation between implicit bias and discriminatory behavior appears weaker than previously thought. They also conclude that there is very little evidence that changes in implicit bias have anything to do with changes in a person’s behavior.[1]

These findings, the researchers state, “produce a challenge for this area of research.”[2]

Additionally, the IAT, which is a popular assessment of implicit bias, has faced significant criticism concerning its methodology and practical value. For example, the IAT sets arbitrary cutoff scores to determine whether an individual’s responses reveal implicit biases, yet fails to provide any assessments of the differences, if any, between the many individuals who score above or below those cutoffs.[3] Also, scores on the IAT are arguably context-dependent and thus produce different results for individuals who take the test multiple times.[4] Consequently, although results on the IAT are “not as malleable as mood,” they are “not as reliable as a personality trait.”[5] Likewise, it is difficult to assess whether the IAT is measuring unconscious attitudes of mere associations that result from environmental influences.[6]

In fact, researchers have conceded that the IAT is flawed, stating that, although the IAT “can predict things in the aggregate … it cannot predict behavior at the level of an individual.”[7] In fact, one of the IAT’s creators acknowledged that the IAT is only effective “for predicting individual behavior in the aggregate, and the correlations are small.”[8] Perhaps most surprisingly, one researcher explained that “what we don’t know is whether the IAT and measures like the IAT can predict behavior over and above corresponding questionnaires of what we could call explicit measures or explicit attitudes.”[9] As a social psychologist explains:

Almost everything about implicit bias is controversial in scientific circles. It is not clear, for instance, what most implicit bias methods actually measure; their ability to predict discrimination is modest at best; their reliability is low; early claims about their power and immutability have proven unjustified.[10]

Of course, this does not mean that implicit bias bears no relationship to biased behavior. It simply means that more research is necessary to determine whether, and to what extent, implicit bias predicts biased behavior. After all, given that eradicating all forms of discrimination is a moral imperative, researchers and policymakers should ensure that society is using the most effective measures to do so. This includes assessing whether implicit bias is a credible predictor of biased behavior.

[1] Bartlett, T. (2017). Can We Really Measure Implicit Bias? Maybe Not. Retrieved from: https://www.chronicle.com/article/Can-We-Really-Measure-Implicit/238807 (emphasis added).

[2] Id.

[3] Azar, B. (2008). IAT: Fad or Fabulous? American Psychological Association. Retrieved from: https://www.apa.org/monitor/2008/07-08/psychometric.

[4] Id.

[5] Id.

[6] Id.

[7] German Lopez, For Years, This Popular Test Measured Anyone’s Racial Bias. But It Might Not Work After All. (March 7, 2017), available at: https://www.vox.com/identities/2017/3/7/14637626/implicit-association-test-racism; see also Heather MacDonald, The False Science of Implicit Bias, (Oct. 9, 2017), available at: https://www.wsj.com/articles/the-false-science-of-implicit-bias-1507590908.

[8] Id.

[9] Id. (emphasis added).

[10] Lee Jussim, Mandatory Implicit Bias Training Is a Bad Idea (Dec. 2, 2017), available at: https://www.psychologytoday.com/us/blog/rabble-rouser/201712/mandatory-implicit-bias-training-is-bad-idea.

December 7, 2019 in Current Affairs, Law School, Legal Ethics, Legal Profession, Science | Permalink | Comments (0)

Wednesday, March 6, 2019

Science & oral argument

Like a lot of advocacy professors, I'm an avid consumer of social-science literature on persuasion, decision-making, and pedagogy. And I'm a fan of efforts by law professors to apply this literature to what advocates do. Sure, we've got to be humble and cautious: I and many of the law professors with interest in this area aren't trained scientists or statisticians, and stuff like the Social Sciences Replication Project and the hubbub over power posing offer healthy reminders that it's possible (even easy, sometimes) for folks trained in the right disciplines to get out over their skies. As Ted Becker points out, we in the persuasion business don't really know much about what really persuades judges. But much of the good, humble, cautious work helps us at least start down the path of sorting out techniques that work from techniques that we adopt just because they're the way we do things. There is a wealth of interesting work being done in this area related to persuasive writing and legal reasoning: Kathy Stanchi's body of work on psychology and persuasion is remarkable; Lucy Jewel's piece on old-school rhetoric and new-school cognitive science is a revelation; Steven Winter's work broke fascinating ground in knitting together cognitive science and legal reasoning. I could mention dozens of other scholars here: exciting things are happening.

We don't have a similar volume, as yet, of scholarship linking social science to oral advocacy. Still: I'd like to devote a few posts to highlighting a couple of pieces that I find particularly useful in refining the advice I give to advocates and in polishing my own performances.

I think it's fair to call the first a classic in the field: Michael Higdon's Oral Argument and Impression Management: Harnessing the Power of Nonverbal Persuasion for a Judicial Audience, published in the Kansas Law Review in 2009. Professor Higdon offers a rich, comprehensive overview of research into the seven basic codes of nonverbal communication: (1) kinesics (i.e., what speakers do with their bodies); (2) physical appearance (i.e., what speakers look like); (3) vocalics (i.e., what speakers sound like); (4) haptics (i.e., how speakers physically touch an audience member); (5) proxemics (i.e., how speakers use physical space); (6) environment and artifacts (i.e., how speakers use instruments and their environment); and (7) chronemics (i.e., how speakers manages time). And he thoughtfully applies that research to what lawyers do in appellate oral argument.

I find Higdon's piece particularly useful in sorting out advice on things like the use of gestures. Quite often, beginning appellate advocates will do stuff with their hands that distracts judges. So they'll get categorical advice: don't talk with your hands. And they take that advice ... and promptly get told by the next set of judges not to be so stiff and nervous. Higdon's piece details research spanning several decades that makes it clear that any "don't use your hands" advice is flatly wrong: gestures are essential to effective in-person communication generally, and they're especially vital to persuasion. But there's a catch: only those gestures that are "synchronized with and supportive of the vocal/verbal stream" enhance comprehension and persuasion. The lesson that emerges: advocates should use purposeful gestures that match and support the points they make verbally, but avoid gestures that simply accompany the verbal stream. So use the hands to help you make a point, but don't let your hands flap around randomly to accompany your talk.

Higdon's points on speed of delivery (somewhat fast is actually good, so long as it doesn't flatten out a speaker's pitch and tone) and on managing the judges' dominance are similarly illuminating. If it is read as widely as it should be, the generations of appellate advocates will tilt their heads eight degrees to the right (see p. 643). And win.

 

March 6, 2019 in Appellate Advocacy, Moot Court, Oral Argument, Science | Permalink | Comments (1)