Legal Skills Prof Blog

Notice and Comment on ABA Proposed Racism Training Requirement.

The ABA Council has asked for comments on its proposed racism requirement, which I earlier discussed here.  You can find the Notice here.  You can send comments to [email protected].

Here is the proposal:

Standard 303:

c) A law school shall provide training and education to law students on bias, cross-cultural competency, and racism: (1) at the start of the program of legal education, and (2) at least once again before graduation. For students engaged in law clinics or field placements, the second occasion for training and education will take place before or concurrent with their enrollment in clinical or field placement courses.

Interpretation 303-6: With respect to 303(a)(1), the importance of cross-cultural competency to professionally responsible representation and the obligation of lawyers to promote a justice system that provides equal access and eliminates bias, discrimination, and racism in the law should be among the values and responsibilities of the legal profession to which students are introduced.

Interpretation 303-7: Standard 303(c) may be satisfied by: (1) Orientation sessions for incoming students on bias, cross-cultural competency, and racism; (2) Guest lectures or trainings by experts in the areas of bias, cross-cultural competency, and racism; (3) Courses on racism and bias in the law; or (4) Other educational experiences that train students in cross-cultural competency. While law schools need not add a required upper-division course to satisfy this requirement, law schools must demonstrate that all law students are required to participate in a substantial activity designed to reinforce the skill of cultural competency and their obligation as future lawyers to work to eliminate racism in the legal profession.

(Scott Fruehwald)

Revised Proposal for Professional Identity Training

The ABA Council of the Section of Legal Education and Admissions to the Bar met on May 14 to consider a proposal to add professional identity training to the law school curriculum.  The Council decided to resubmit the proposal for notice and comment because of suggested changes to the language of the proposal by commenters.  (here)

Here is the revised proposal:

(b) A law school shall provide substantial opportunities to students for:

(1) law clinics or field placement(s);

(2) student participation in pro bono legal services, including law-related public service activities.; and

(3) the development of a professional identity.

Interpretation 303-5

Professional identity focuses on what it means to be a lawyer and the special obligations lawyers have to their clients and society. The development of professional identity should involve an intentional exploration of the values, guiding principles, and well-being practices considered foundational to successful legal practice. Because developing a professional identity requires reflection and growth over time, students should have frequent opportunities during each year of law school and in a variety of courses and co-curricular and professional development activities.

I expect that the revised proposal will be sent out for notice and comment later this week or next week.  I will post again when it is.

(Scott Fruehwald)

Update: The Council has put out a call for Notice and Comment on the revised language.  You can find it here.

 

ABA Pushes Forward With Racism Training Requirement for Law Schools

News from last Friday's Council meeting:

ABA Pushes Forward With Racism Training Requirement for Law Schools by Karen Sloan.

"A requirement that law schools train students in 'bias, racism and cross-cultural competency' is among a slate of changes to the law school accreditation standards that the American Bar Association is weighing.'"

"Should law schools be required to train students in bias, racism, and cross-cultural competency? The American Bar Association is asking legal educators and the public to weigh in."

"The ABA’s Council of the Section of Legal Education and Admission to the Bar on May 14 advanced a slate of proposed changes to its law school accreditation standards, including a mandate that law students receive training on racism and bias at least twice during their legal studies."

"Under the revised standard, law schools would have to provide training on bias, racism and cross-cultural competency at the beginning of their law school careers, and at least one other time after that. That requirement could be fulfilled during orientation, guest lectures, courses on racism and bias in the law, and other 'educational experiences,' according to the proposed standard. Students would have to complete both trainings before starting clinics or field placements."

"But it remains to be seen how a bias and racism training requirement for law students will be received beyond the legal educators who have been lobbying for the change. The Council voted to put the proposed new requirements out for public notice and comment without any discussion or debate during the public portion of its meeting. It’s on track to take up the matter again when it next meets in August, after the public has had the opportunity to submit feedback. If the Council adopts the changes in August, it would then go before the ABA’s House of Delegates in February. If the House votes in favor, then new standards would be in place for the fall of 2022."

(Scott Fruehwald)

Here is the proposed language:

Standard 303:

c) A law school shall provide training and education to law students on bias, cross-cultural competency, and racism: (1) at the start of the program of legal education, and (2) at least once again before graduation. For students engaged in law clinics or field placements, the second occasion for training and education will take place before or concurrent with their enrollment in clinical or field placement courses.

Interpretation 303-6: With respect to 303(a)(1), the importance of cross-cultural competency to professionally responsible representation and the obligation of lawyers to promote a justice system that provides equal access and eliminates bias, discrimination, and racism in the law should be among the values and responsibilities of the legal profession to which students are introduced.

Interpretation 303-7: Standard 303(c) may be satisfied by: (1) Orientation sessions for incoming students on bias, cross-cultural competency, and racism; (2) Guest lectures or trainings by experts in the areas of bias, cross-cultural competency, and racism; (3) Courses on racism and bias in the law; or (4) Other educational experiences that train students in cross-cultural competency. While law schools need not add a required upper-division course to satisfy this requirement, law schools must demonstrate that all law students are required to participate in a substantial activity designed to reinforce the skill of cultural competency and their obligation as future lawyers to work to eliminate racism in the legal profession.

 

 

 

 

Cognitive Biases, Implicit Biases, and Student Feedback

I have stressed the importance of cognitive (or unconscious) bias training as a part of law students' professional identity development.  (See Understanding and Overcoming Cognitive Biases For Lawyers And Law Students: Becoming a Better Lawyer Through Cognitive Science (2018))  I think it is important for law students to understand that all humans--lawyers, clients, judges, and themselves--are susceptible to cognitive errors caused by how their brains evolved.

Cognitive biases (thinking or brain biases) are “a systematic error in thinking that affects the decisions and judgments that people make.”  (Kendra Cherry, What is a Cognitive Bias? Definitions and Examples, VeryWell (May 26, 2016). https://
www.verywell.com/what-is-a-cognitive-bias-2794963)  Overcoming cognitive biases can produce amazing results. For example, “Atul Gawande, an accomplished medical professional, recounts the results of an initiative at a major U.S. hospital, in which a test run showed that doctors skipped at least one of only 5 steps in 1/3 of certain surgery cases, after which nurses were given the authority and responsibility to catch doctors missing any steps in a simple checklist aimed at reducing central line infections. In the subsequent 15-month period, infection rates went from 11% to 0%, 8 deaths were avoided and some $2 million in avoidable costs were saved.”  (Wikipedia: Cognitive Bias Mitigation, https://en.wikipedia.org/wiki/Cognitive_bias_mitigation)

Anne Gordon has written an amazing article (with one major flaw) on biases and effective and fair student feedback. 

Better Than Our Biases: Using Psychological Research to Inform our Approach to Inclusive, Effective Feedback.  First, the abstract:

"As teaching faculty, we are obligated to create an inclusive learning environment for all students. When we fail to be thoughtful about our own bias, our teaching suffers – and students from under-represented backgrounds are left behind. This paper draws on legal, pedagogical, and psychological research to create a practical guide for clinical teaching faculty in understanding, examining, and mitigating our own biases, so that we may better teach and support our students. First, I discuss two kinds of bias that interfere with our decision-making and behavior: cognitive biases (such as confirmation bias, primacy and recency effects, and the halo effect) and implicit biases (stereotype and attitude-based), that arise from living in our culture. Second, I explain how our biases negatively affect our students:  both through the stereotype threat that students experience when interacting with biased teachers, and by our own failure to evaluate and give feedback appropriately, which in turn interferes with our students’ learning and future opportunities. The final section of this paper details practical steps for reducing our bias, including engaging in long-term debiasing, reducing the conditions that make us prone to bias (such as times of cognitive fatigue), and adopting processes that will keep us from falling back on our biases, (such as the use of rubrics). Acknowledging and mitigating our biases is possible, but we must make a concerted effort to do so in order to live up to our obligations to our students and our profession."

This article is thoroughly researched (with one exception), and the author applies critical thinking to her arguments (with the same exception).  Not only does she identify the problems, she offers several practical solutions to overcome cognitive biases in feedback and grading.

The one problem is her use of  "implicit bias" in her argument.  She defines cognitive biases as "errors of intuitive thought - shortcuts to decision-making that actually lead us to the wrong conclusion."  The cognitive biases she lists in her article include the Anchoring Bias, the Regency Effect, the Conformation Bias, the Halo Effect, the Bandwagon Effect, the Attractiveness Effect, the In-Group Bias, the Bias Blindspot, and the Objectivity Illusion.  These biases are well-supported by scientific studies, and Professor Gordon presents a detailed discussion of the biases.

She defines "implicit bias" as "a combination of attitude and stereotype biases, and "cognitive bias" as all other cognitive biases.  It is key that she recognizes this distinction because cognitive (unconscious, brain biases) and implicit bias because these two categories have distinct research lines.  In other words, researchers on cognitive biases do not generally study implicit biases.

As I said above, cognitive biases are strongly supported by rigorous, scientific studies.  The same is not true of implicit biases.  Scientists strongly disagree about the basis of implied bias theory.  

Adam Lamparello has written an excellent article on the problems with implicit biases: The Flaws of Implicit Bias -- and the Need for Empirical Research in Legal Scholarship and in Legal Education.  Here is the abstract:

"Nowhere is the necessity of using empirical research methods and statistics in formulating legal arguments more obvious than in recent legal scholarship concerning implicit bias.

By way of background, the concept of implicit, or unconscious, bias has recently enjoyed its ‘fifteen minutes of fame,’ garnering substantial support from many scholars, including some law professors, who contend that implicit biases cause discriminatory behavior, including behaviors that disparately impact traditionally marginalized groups. Indeed, scholars have advocated for programs and policies that instruct incoming law students and faculty regarding the existence of its implicit bias and its alleged role in perpetuating overt and subtle racism.

But there is a problem – a very big problem – that plagues legal scholarship in this area and that casts doubt on these policies.

Specifically, recent empirical studies by social psychologists strongly suggest that implicit bias is not predictive of biased behavior. In fact, the science regarding implicit bias’s connection to biased behavior is so flawed that social psychologists doubt its validity and question the utility of policies that attempt to link implicit bias to biased behavior. You wouldn’t know this from reading the many law review articles concerning implicit bias, or from the orientation sessions where law students are taught to believe that implicit bias is the sine qua non of biased behavior."

More specifically, first, "researchers have failed to delineate any meaningful distinction or definition distinguishing explicit (i.e., conscious) bias from implicit bias, and thus cannot explain why implicit, rather than explicit bias is the primary cause of overt and subtle discriminatory conduct. Put simply, the conclusion that implicit bias underlies certain types of discriminatory behavior is predicated on an inference –and nothing more."  "Additionally,and relatedly, such studies are based substantially on the theory of disparate impact, which asserts that, where marginalized groups are disproportionately affected by a policy or practice, that impact is likely due to discrimination (and implicit bias). If, for example, an employer hires more Caucasians than African-Americans, such conduct is often attributed to implicit bias, despite the fact that bias or non-discriminatory factors, such as interview performance, `fit' with an organization, and other intangible factors could be responsible for this disparity. In other words, quantifying the impact of implicit bias on discriminatory behaviors has proven elusive, thus rendering conclusions regarding its effect tenuous."

Second, "What's more, the extant measures of implicit bias are flawed and thus provide no reliable method by which to quantify the effects of implicit bias on biased behavior. For example, the most common measure of implicit bias is the Implicit Association Test (IAT), which purports to measure the strength of associations between concepts (e.g., African-American, Hispanic, or Muslim persons), valuations (e.g., good, bad), and stereotypes (e.g., smart, dumb). (Based on the results of this test, researchers assess the degree to which an individual harbors implicit biases toward particular groups. But recent research has revealed that the IAT is flawed. 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."  "Furthermore, IAT scores are arguably context-dependent, as the IAT produces different results for individuals when they complete the test multiple times. In essence, although results on the IAT are 'not as malleable as mood,' they are not as reliable as a personality trait."  Moreover, it is difficult to assess whether the IAT is measuring unconscious attitudes that reflect associations resulting from environmental influences. Finally, and as stated above, 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.'"

Finally,  "the IAT, and implicit bias generally, is weakly correlated to discriminatory behaviors."  "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.'"

In sum, "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."  Consequently, "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."

Why have so many scholars uncritically advocated implicit biases and implicit bias tests? Cognitive Biases--the Confirmation Bias, the Semmelweis Reflex, and the Bandwagon Effect.  Professor Gordon defines the confirmation bias as "the tendency to selectively search for information that confirms prior beliefs, hypotheses, or judgments." So, those who support implicit bias theory only look for evidence that supports their theory.  The Semmelweis reflex is "The tendency to reject new evidence that contradicts a paradigm."  (Wikipedia: List of Cognitive Biases)  This is the most important reason that the shaky implicit bias theory is so widely accepted.  Scholars who support the implicit bias theory simply ignore all contradictory evidence due to this cognitive bias.  Finally Gordon defines the bandwagon effect as "our tendency to have our attitudes and beliefs shaped by others, due to our innate desire for social harmony." To paraphrase Gordon: If one clinician has an opinion about a [theory], the other may be unconsciously swayed by that person's opinion and therefore less likely to speak up [about the flaws in the theory], even if her opinion differs."

In sum, one foundation of Gordon's article, cognitive bias theory, has firm scientific support, while the other, implicit bias theory, does not.   What does this mean for Gordon's suggestions and conclusions?  Not much.  Gordon's ideas for avoiding unfairness in feedback and grading are fully supported by cognitive bias theory.  She does not need implicit bias theory to support her conclusions.  For example, awareness of the primacy effect and the confirmation bias tells us that we shouldn't just evaluate a student on what she does at the beginning of the semester, but be prepared to change our opinion of that student as the semester progresses.  Similarly, awareness of the in-group bias tells us that we should be careful that we treat those who are not in our group as fairly as in-group members.

Professor Gordon has written an amazing article.  When we eliminate the one flaw in her article, we can follow her suggestions and give students fairer and more effective feedback.

(Scott Fruehwald)

Other sources criticizing implicit bias theory:

The Problem with Explicit Bias Training, Scientific American.

The False Science of Implicit Bias, WSJ.

Fred Oswald and Phillip E. Tetlock and colleagues, Predicting Ethnic and Racial Discrimination, Journal of Personality and Social Psychology, 2013.