Clinical Law Prof Blog

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Friday, October 3, 2014

Implicit Bias, A Listserv Discussion & Compilation of Resources

By Tanya Asim Cooper

Updated on October 29, 2014

This past spring, Amna Akbar kicked off a rich discussion on the LawClinic listserv on how to name and talk about race and cross-cultural lawyering in the clinic, and asked whether other clinicians have had their students take a Harvard implicit bias quiz (or another) and, if so, how it went. 

With their permission, I have compiled in this post all the responses, resources, activities, links, attachments and ideas that our wonderful community contributed (hyperlinks to each contributor’s email).  From Amna’s initial set of questions, two related threads (“Is it racist to talk about race?” and “Is this covered with incoming or large segments of law students?”) emerged and are also included here. 

I found these discussions so helpful that I am retooling my class on cross-cultural lawyering, and I hope that you will also find this post helpful and continue the discussion through the blog comment feature, or please email me and I will add your suggestions and any experiences you would like to share. 

How to name and talk about race in the clinic

Amna Akbar suggested The Five Habits of Cross Cultural Lawyering by Sue Bryant and Jean Koh Peters (chapter; website), and has used an in-class activity and debrief using one of the habits in students’ casework.  

Karen Yau: “I currently volunteer at NYC's EEOC as a pro bono mediator.  Yesterday Jerry Kang from UCLA, visiting at NYU, gave a lecture to some 30 EEOC personnel about implicit bias and as a tool to discuss race, racism, and inequality.  I suggest that you look up his and his colleagues’ work ( see, e.g., Rachel Godsil). For many years, I was a workers' rights lawyer at the New York State Attorney General's Office. Before then, I was teaching and spent a year at the Syracuse University College of Law as the director of civil litigation clinic.  I remember giving a class seminar on cross-cultural lawyering and asking students to read Lucie White's Mrs. G and Sunday Shoes” (Lucie E. White, Subordination, Rhetorical Survival Skills, and Sunday Shoes: Notes on the Hearing of Mrs. G, 33 Buff. L. Rev. 1 (1990); online version) and asking them to both identify things about Mrs. G's life that were the same and different from their own.  I remember it as a successful class.”  Karen also recommended these resources: the Harvard Implicit Bias Tests; the Perception Institute; Jerry Kang, Trojan Horses of Race, 118 Harv. L. Rev. 1489 (2005).

Stephen Ellman: “Perhaps a way to capture students’ attention would be to discuss the recent study of faculty members’ greater likelihood of responding, and of responding positively, to otherwise-identical student e-mails expressing admiration for their work and asking to meet with the faculty member – depending on whether the name of the student appeared to be a white male’s name or the name of a woman or minority. It was discussed in various media outlets a few weeks ago, including on NPR.”

Gillian Dutton: “I teach in the Externship Program at Seattle University and regularly cover this topic in the externship seminars (criminal, judicial, civil, and international). I used to raise it when I taught a Refugee and Immigrant Advocacy Clinic but there is so much new material (both law review and research) that it has become a subject that can easily be covered in many different ways. I do have students take the implicit bias test and have an in-class exercise for discussion of the results. I emphasize how being able to discuss bias is crucial to being an effective advocate in both negotiation and litigation, as for example in conducting voir dire. I have also adapted an exercise from SPLC Speak Up! series as a way to help students address micro-aggressions with colleagues in the work place.  In addition to teaching these issues in class, I have been presenting on the topic to advocates, client groups and legal services advocates and find people are hungry for ways to start the discussion. As a white woman, I know that this is an area where I have much to learn but I am happy to share with you the materials I have found so far.”

Kelly Browe Olson: “I use these (Harvard Implicit Bias) tests in my mediation clinic course every semester.  I ask the students to take three tests of their choosing.  We also have reading on biases and I have the students watch the movie Crash. While I used to have the students bring in notes on their results, several of them shared in their journals that they were concerned about what their classmates would think of their results. I focus now on their reaction to the results and their concerns about how they might be perceived based on the results. Students who wish may discuss their results. I start by sharing my surprise at the results I had when I took several of the tests. While all the discussions are different I find that the students enjoy relating the tests and movie to issues of perception, point of view and bias that we have previously touched on in class.”

Natalie Chin: “Here is another resource: Written in Black & White: Exploring Confirmation Bias in Racialized Perceptions of Writing Skills. This is a recent study that demonstrates ‘confirmation bias.’  Law firm partners were given the exact same legal memo but told that one was written by a Black associate and the other by a White associate. The findings showed that the law firm partners, at a much greater rate, commented negatively on the memo they thought was written by a Black associate.”

From the study: “This memo was then distributed to 60 different partners (who had previously agreed to participate in a 'writing analysis study' from 22 different law firms of whom 23 were women, 37 were men, 21 were racial/ethnic minorities, and 39 were Caucasian. While all of the partners received the same memo, half the partners received a memo that stated the associate was African American while the other half received a memo that stated the associate was Caucasian: The exact same memo, averaged a 3.2/5.0 rating under our hypothetical 'African American' Thomas Meyer and a 4.1/5.0 rating under hypothetical 'Caucasian' Thomas Meyer. The qualitative comments on memos, consistently, were also more positive for the 'Caucasian' Thomas Meyer than our 'African American' Thomas Meyer.”

Emily Benfer: “Thank you for posing the question about implicit bias. (I am making detailed notes about the helpful replies to improve our approach!) I wanted to add a few resources to the list. These are largely inspired by the work of Tirien Steinbach and Jeff Selbin.  Essentially, we have found that students participate more freely in discussions and remain more aware of implicit bias if we complement the discussion with techniques to address it and heighten their own awareness. 

We ask the students to take two implicit bias tests and complete readings on implicit bias and mindfulness prior to class.” (Emily’s lesson plan – download 1 below).  “In class, we discuss the background of implicit bias (where it comes from; how common it is; why it is important; and the effect on interviewing, client relationships, court systems, judiciary, etc.) and the results of the tests. The past few semesters, students have also shared their own experiences with bias (their own or someone else's bias towards the student). The students always agree that we should try to overcome implicit bias in our own practice to be effective, to be good attorneys and for the sake of society. Once we have obtained agreement, we turn to strategies for ensuring implicit bias does not affect the students’ judgment--namely, mindfulness and confronting assumptions. Each student practices the various strategies throughout the semester and reflects on the outcome and their usefulness. In the semesters that we did not include the mindfulness strategies (the response to the problem), the students often left feeling a sense of despair about the role of implicit bias in society and their contribution to it. They withdrew instead of bonding together with a sense of purpose. 

In future semesters, we are going to dedicate the first 10 minutes of class to a mindfulness exercise (something we learned about at the last clinical conference from the University of Miami presenters). The benefits seem to span into every area of practice. 

Here are a few of the resources we have used to prepare ourselves or students for class:

Russell G. Pearce: I think you (and others) might find of interest my article, White Lawyering: Rethinking Race, Lawyer Identity, and Rule of Law, 73 Fordham L. Rev. 2081 (2005).  The article challenges the normalization of whiteness in law practice and discusses (with at least one clinical example) how normalizing whiteness undermines excellent lawyering.  Always happy to chat.”

Jamie Baker Roskie: “Really interesting that you should bring this up, as some colleagues and I were talking about this issue earlier this month. When I ran the Land Use Clinic at UGA we did environmental justice work, and I sometimes got pushback from students about discussing race as an underlying factor of EJ problems.  And, with even the Supreme Court pushing the idea that we should just get past addressing inequities tied to race, it can be difficult to create a good container for the conversation.

I wasn't aware of the implicit bias test when I was teaching, but I did sometimes use Bryant & Koh, and sometimes the "Sunday Shoes" piece (online version), along with my EJ materials, with varying level of success. Eventually I also brought the issue into a larger, semester-long discussion I had with the students about identifying value sets.   I gave a talk about this, and the related paper: Values as part of the Clinical Experience, 2 Pace Envtl. L. Rev. 160 (2011). 

Also did some mindfulness work with the students, generally around listening, using Norman Fischer's book Taking Our Places: The Buddhist Path to Truly Growing Up.

I think it makes sense to come at the issue from various levels throughout the semester.  Also, hearing the voices of peers helps, so if you can create safe space for students - particularly students of color - to talk about their experiences with bias it can make the conversation richer.”

Elliott Milstein: “We think that you will find helpful the two new chapters that Sue Bryant and Jean Koh Peters wrote on this topic.  Chapter 15 of our new book, Bryant, Milstein & Shalleck, Transforming the Education of Lawyers:  The Theory and Practice of Clinical Pedagogy (Carolina Academic Press 2014),  is entitled “Reflecting on the Habits:  Teaching about Identity, Culture, Language, and Difference;” in it Sue and Jean refine and revise their earlier work on cross-cultural lawyering.  Chapter 16, entitled “Talking About Race,” goes beyond the cross-cultural paradigm to get at the particular complexities of addressing questions of race.  It contains many ideas about how to help students understand the role of race in society and in their work and how to talk with them about it.” 

Amna Akbar: Thanks for the outpouring of support, advice, and solidarity. This community is so generous and committed, and for that I could not be more grateful. Thank you.

In further reflecting, I realize there are many struggles embedded within, including that in taking this on we are taking on a larger void in most law school curriculums--not to mention a willful ignorance in law itself, as Jamie Roskie pointed out. A big part of what I struggle with is that in trying to make “cross-cultural lawyering” palatable I water it down so much that we lose all focus on power and privilege, and students who would rather not talk or think about their race, gender, and class privilege or power get away with doing so too easily. How do we create space for students to enter these hard realities and wade through, rather than run away? It seems there's an important role here for courage, for modeling, and for naming, and for persistence (across semesters but also within the semester--learning is iterative!). We have to give the students a language so they can be self-aware, so they can self-construct the knowledge in some sense. 

Many of you sent useful guidance on how to use the implicit bias tests to create a larger discussion. I appreciate the input because it's not obvious how to use the tests as a source for discussion.  Here I think and hope the new chapter by Sue and Jean will help.  Also, FWIW, for others of you thinking about this, there are at least two prior recent chains on LawClinic that deal with these questions: one entitled “Dealing with student's experience of racism in court” by Joshua Tepfer from 2013, and a posting of a bibliography of resources by Laurie Barron in 2012 (download 2 below). If you have exercises or class plans for teaching implicit bias/race/gender/class, I'd love to see them and they would help me work through this, so please send my way.”

Mary Lynch: “I got a requested early glimpse of the chapters Elliott references and I was and am thrilled to have these thoughtful reflections available to our community. I found them to be very helpful in thinking about how to design student learning experiences focused on these issues. 

The next Best Practices book . . .‘Beyond Best Practices’ . . . will have a chapter devoted to intercultural and multicultural lawyering/sensibilities.  We are cognizant of the importance of the concepts of privilege, whiteness, oppression, etc.  as we talk about other cross-cultural learning, ideas and concepts in the context of the U.S. Legal system and law.  As lead wrangler on the chapter, I hope that we can contribute by identifying and assessing student learning objectives as well as focusing on teaching and learning activities in clinic and in classroom settings.  The evolution of even the nomenclature on this topic has made writing this chapter a challenge.  So many separate concepts are often contained in conclusive adjectives such as ‘cross-cultural,’ ‘diversity,’ ‘multi-cultural’ or ‘intercultural’ as well as the terms ‘competence,’ ‘lawyering,’ ‘effectiveness,’ or ‘sensibilities.’ 

Andi Curcio came out with a piece on assessment of intercultural sensibilities which I think will be both helpful and provocative and is based on interdisciplinary work she did: Andrea Anne Curcio et al., A Survey Instrument to Develop, Tailor, and Help Measure Law Student Cultural Diversity Education Learning Outcomes, 38 Nova L. Rev. 1 (2014).” 

Laurie Barron: “Lexi Freeman, from Denver, did a terrific presentation on this at Externships 7 entitled:  Homeland, The Wire, Friday Night Lights and Helping Externship Students Understand Privilege and Navigate Difference. She used terrific video clips which are available here (scroll down to the last concurrent session slot) and demonstrated the Privilege Walk for all of us. The session was incredibly inspirational and informative and I tried everything in my class right after the conference.  Thank you Lexi!!”

Jennifer Sperling: “Amna, your call for persistence and modeling resonated with me, and I thought you (and others) might enjoy this article, published in Slate yesterday, which discusses the results of a (limited, but interesting) MTV survey on millennials and race, which indicate that 18-24 year-olds have trouble talking explicitly about race, in part because they seem to have connected with a narrative of formal equality that makes any race-conscious dialogue challenging.  Overwhelmingly though, those surveyed said they would want to know if they had implicit biases, and want to have tools (and language) to address bias in themselves and their communities, which I read as encouraging, and empowering.  Thanks for raising this on the list – I took away a lot of thoughtful resources from this thread.”

Leonard Sandler: “I have truly enjoyed the conversations and materials about implicit individual and institutional bias and disparities based on race, gender, disability and other characteristics. For the past two years, we have partnered with community organizations to identify, document and try to resolve racial disparities in law enforcement, education, transportation and jobs. The clinical law students and I attended several workshops on implicit bias that were facilitated by people with great experience, savvy and teaching skills. I have attached some of the materials and homework we were assigned (Downloads 3-10 below)– joined by staff, faculty, students and administrators from several departments. I think that implicit association tests should be accompanied by workshops or structured discussions to help us unpack the subtleties and nuances of the instruments and the issues.

By the way, our Law and Policy in Action clinical team completed the first phase of a project with the City of Iowa City to evaluate and recommend corrective measures to improve the city’s outreach and recruitment effort. It was the first step in the aftermath of a report on Racial Equity report released by one of our community organization clients. I have enclosed the presentation slides (Download 11 below) we used during our meeting with the City Attorney, Assistant City Manager, Equity Director/Human Rights Coordinator and the Human Resource Administrator.

I’d be interested in knowing of other clinical law projects that are addressing similar issues.”

Ascanio Piomelli: “To add to the list of materials on the IAT and cross-cultural interaction, I hope that some of you may find something of value in my essay, Cross-Cultural Lawyering by the Book: The Latest Clinical Texts and a Sketch of a Future Agenda, 4 Hastings Race & Poverty L. J. 131, 166-79 (2006).”

Bob Seibel: “Thanks for sparking a great discussion.  Your post puts the issue in the broader context of power dynamics and that can be a useful and less threatening starting point, especially since students are probably acutely aware of the power imbalances in supervisor/student relations and faculty/student relations.  In the externship world we have found that it is often useful to address power issues so that students who are reticent to assert their learning agendas at a placement become more acquainted with techniques to do so and of the impact of their feelings of being powerless in the situation.  In house clinics have some of the same issues arise, but fortunately most clinic supervisors are aware of the power dynamics and we try to minimize the negative effects. Students may have an easier time moving to race, gender and other biases when they start with some aspect of power issue that they personally relate to.

Similarly, many students have a concern that clinic clients won't take them seriously as professionals because of their young age and you can use this bias issue to open up discussion to other bias occurrences that may be more subtle.

What a great and rich discussion--also a reminder of how difficult it is for us to fully explore with students all the issues that need to be, or at least could be fruitfully addressed in our teaching environment.   I wish more first year teachers would have discussions like this to incorporate these issues, not just as abstract principles but as everyday lawyering realities, and help prepare the students better for our clinic experiences.”

Nekima Levy Pounds: I thought this short blog post might be of interest: White Privilege: The Elephant in Minnesota’s Living Room, Star Tribune, May 20, 2014. It's been making the rounds on social media here.

Mary M. Zulack: “There was some pathbreaking work back in the 1980's by Peggy McIntosh, whom I believe may have coined the term White Privilege.  Here is a recent New Yorker article about her and her SEED program. Perhaps others have gone through the SEED program and can comment on it.  Here is the older article: White Privilege: Unpacking the Invisible Knapsack.  And here you can see the old typed manuscript: White Privilege and Male Privilege: A Personal Account of Coming to See Correspondences Through Work in Women’s Studies (Wellesley College, College for Research on Women, Working Paper No. 189, 1988).”

Steven Drizin: “For those who teach in juvenile justice clinics and who are working towards juvenile justice reform, there are a variety of essential studies and articles worth reading, starting with Perry Moriearty’s wonderful article below which cites many of the other essential sources.  The recent APA article here was mind-blowing to me because it documented what I have always suspected when I worked in the juvenile courts -- the notion that ‘childhood’ takes on a new meaning depending upon the race of the child and that black children are perceived to be ‘older’ and thus more responsible for their crimes than similar-situated white children.  Ask yourself: How many times have you heard prosecutors argue that ‘he may be young or have a low IQ but he has ‘street smarts.’ And then ask yourself, how many times you've heard this argument in a case involving white clients. . .’”

Jane Spinak: “To Steven's list above, you can add Matthew I. Fraidin, Decision-Making in Dependency Court: Heuristics, Cognitive Biases, and Accountability, 60 Clev. St. L. Rev. 913 (2013).”

Shoba Wadhia: “I look forward to a continuing conversation. I am including here a PPT and resources in connection with a talk by Derald Wing Sue, professor of psychology and education at Columbia University delivered at Penn State last September titled ‘Microaggressions and Marginality: Manifestation, Dynamics, and Impact.’  

Beyond the classroom, I would be interested in hearing about how you address implicit bias in your faculty committee work and during faculty meetings.”   

Carol Izumi: “I’m attaching a copy of my article on 'Implicit Bias and the Illusion of Mediator Neutrality' (download 12) which identifies efforts I’ve incorporated in my Mediation Clinic.  I presented on this in a plenary at the clinical conference in LA a couple years back.”

Justin Steil: “I thought I might add one more—a blog post by Jerry Kang, with responses from Richard Ford, Robert Smith, and Cheryl Staats.  I hope it can be useful!”

Is it racist to talk about race?

Jamie Baker Roskie: “What I would love to see is a principled answer to the student who says, essentially, that it's racist to talk about race, or that by talking about race we are accusing him/her of racism.  I always struggled to find common ground with some students around those issues.”

Kimberly O’Leary: “If your students are in a mental place where they feel like it is racist to talk about race, you might try one of the alike/different exercises mentioned earlier on this thread. Where I teach now, it is very diverse and students do not feel that way about race discussions.  But when I taught at a different place that was virtually all white, students felt very threatened by race discussions.  I had a set of videos (produced by Mary Wolf many years ago for a clinic conference) where the client was young, white, male, very religious, poor and had some unusual personality traits; the student lawyer was African-American, a little older, kind of conservative politically, middle class; the supervisor was female, politically leftist, about the same age as the student, etc.  The students would watch the video of the client and I would have them list ways they were similar to and different from the client.  Then they would watch the video of the student lawyer and they would list how the client and student lawyer were the same and different from each other.  This then led to a discussion of how similarities/differences affect representation, empathy, etc.  Race was one factor, but not the only factor.  I think it also helped that the African-American person was the student, not the client.”  

Russell Pearce: “I believe your concern about students saying “it’s racist to talk about race” and Jennifer’s concern about millennials embracing formal equality are connected.  The dominant elite (and legal) culture assumes that we are autonomous individuals who should aspire to, and could actually, relate in a color-blind way.  Under these assumptions, race consciousness is wrong because it denies that all individuals are autonomous.  The contrary view is that our selves are constructed through our relationships.  In a society, where race is relevant and where white people are privileged, then competent lawyering and the values of equity and inclusion inevitably require consciousness of how race influences those relationships.  There is a terrific business school literature on this, including a Harvard Business School study comparing bank branches that used a color blind model with those that used a racial learning model.  The racial learning bank branches performed better than the color blind branches on every measure of success, from job satisfaction to profitability.  See White Lawyering: Rethinking Race, Lawyer Identity, and Rule of Law, 73 Fordham L. Rev. 2081, at 2093-95 (2005).

My sense is that unless we provide students with frameworks that undermine the assumption that we all exist, or have the capacity to exist, autonomously, then they will default to a color blind perspective hostile to conversations regarding race, especially white people like myself who benefit from normalizing whiteness and find it uncomfortable to consider how our racial identity influences how we perceive others and how others perceive us.”

Jamie Baker Roskie: “That's such an interesting perspective, and it rings true.  I had so much trouble establishing common ground with one student who was very resistant, because as I kept reaching for common ground she kept isolating herself.  I tried calling to what I considered a shared professionalism value - our ‘duty’ to provide legal assistance to those who cannot afford it - and she also rejected that. She said (something like - this is several years ago) – ‘I don't believe in that - I just want to be a tax attorney and to be left alone.’  Left alone.

That's why I ended up moving my Values class to the beginning of the semester - I found that if I gave the students the opportunity to surface and discuss their own value sets, and then discuss values vis-à-vis our work in the clinic, they felt heard, and we then had some common language to refer to when we got to the tougher stuff - like race.”

Sue Bryant: “One resource that might be helpful is the report published by the national conferences on the state courts based on the research of Kang and others that find that when explicit recognition of difference is ignored implicit bias is more likely to occur. Thus the report recommends that judges explicitly pay attention to difference as one of several strategies to manage bias.  A resource that comes with a Court credibility can be a helpful starting place (National Center for State Courts, Helping courts address implicit bias: Resources for education).

If by racist your students mean you are accusing them of intent to discriminate -- they are not racist.  But a failure to attend to implicit bias, creates situations that enable unintentional discrimination.  I think it is important to make those distinctions.  Also important to recognize that we have varying levels of bias about different groups.  Students with a lower bias score on the Implicit Bias tests can overcome biased thinking especially when they are prompted to pay attention.”

Stephen Ellman: “My New York Law School colleague Deborah Archer has been thinking about similar concerns, and I want to recommend her recent article on them, “There Is No Santa Claus: The Challenge Of Teaching The Next Generation Of Civil Rights Lawyers In A "Post-Racial" Society," 4 Columbia J.  Race & L. 55 (2013).”

Implicit Bias: Has anyone covered this with an entire incoming class or large segment of students . . . effectively (or at all)?

Larry Krieger: “This is so important and such an illuminating conversation, I did not see any reference to an attempt to cover in large group (entire 1L or other class?) meeting(s).  Any class-wide or school-wide efforts, or thoughts about planning such a thing?  It may be entirely unworkable, or maybe not.  I like to remember that “the perfect is the enemy of the good” – if a broader session might allow a small number of outliers to sit back and not expose their unwillingness to engage, that might well be preferable to not raising it with any, or the majority of students at the school.  Just thinking . . .”

Russell G. Pearce: That’s a great idea.  In the early 1990s, Penn required all first years to participate in a 3-4 hour program on race, gender, and identity in lawyering as part of the Ethics and Professional module.  Here’s the quick summary of the exercise Penn used:  White Lawyering: Rethinking Race, Lawyer Identity, and Rule of Law, 73 Fordham L. Rev. 2081, at 2085-86.  I have no idea whether Penn continues to do this.

Leonard Sandler: “We introduce the concepts at a diversity orientation session for 1Ls and are planning presentations for other classes throughout the year. University diversity personnel are going to facilitate a workshop for administrators and staff about cultural competence in customer service. We are also working on having our chief diversity officer host a workshop for faculty on implicit bias, teaching and issues in the classroom (to follow up the lecture presented this year by visiting faculty about implicit bias).”

Kelly Terry: “Mike Schwartz and I plan to include these topics as part of a new one-unit course we are developing for first-year students called ‘Professionalism and the Work of Lawyers.’  The course is an elective that we will offer for the first time this fall, so we don’t know yet what the enrollment will be.  If anyone wants to check back with us at the end of the fall semester, we’ll be happy to report on how things went.  Thanks so much for all of the suggestions offered in this discussion; we’ll take a look at the wonderful resources you all have identified.”   

Downloads: 1. Download Implicit Bias and Confronting Assumptions S2014 (2) 2. Download Laurie Barron's Cross Cultural Competence Resource List August 2012 3. Download Glossary 4. Download IAT-Homework Directions (2) 5. Download Interventions-EvidenceBased-11-22-13 6.  Download ImplicitBias-SessionOne-10-30-13 7. Download WISELI-AdviceMinimize 8.  Download Part 2 - Environmental Audit 9. Download Part Two-Draft 10.  Download Resource List-Implicit Bias-2013 11. Download May 6 Race Equity Presentation for Iowa CityLS 12. Download IMPLICIT BIAS AND THE ILLUSION OF MEDIATOR NEUTRALITY

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