Tuesday, June 22, 2021
Legal education scholar, Professor Adam Lamparello, has submitted a comment to the ABA Council concerning proposed standard 303(c). Here Like the previous substantive comments, Professor Lamparello opposes the proposal.
"I am writing to comment regarding the proposed changes to Standard 303(c). For the reasons that follow, the proposed changes should be categorically rejected. They are not based on credible science. They will not have a beneficial impact on students. They are vague and provide insufficient guidance to law schools, particularly concerning how to discuss the relevant topics in a balanced manner that welcomes diverse perspectives. As such, the proposed changes should be rejected."
"Empirical studies regarding implicit bias suggest that there is no credible relationship between implicit bias and biased behavior. Additionally, these studies reveal that the Implicit Association Test (IAT) is flawed and not predictive of biased behavior."
"[O]ne study summarizes concisely implicit bias's flaws:
'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.'
Indeed, these researchers 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." Put simply, implicit bias's relationship to biased behavior is, at best, tenuous and, at worst, non-existent."
"Racism in any form is deplorable. Discrimination in any form, whether on the basis of, for example, race, sex, religion, sexual orientation, or gender identity, is likewise deplorable. The answer, however, is not to mandate anti-racism and implicit bias training."
"First, the evidence suggests that this training is ineffective and, in fact, may do more harm than good: '[W]hile implicit bias trainings are multiplying, few rigorous evaluations of these programs exist.'"
"Second, such training would likely involve a discussion of highly controversial concepts that are not based on science and that are the subject of substantial disagreement. For example, some universities and law schools have emphasized the deleterious effects of microaggressions, which are broadly defined as subtle comments that unintentionally reveal prejudice toward members of marginalized groups. However, as Edward Cantu and Lee Jussim explain in their article titled Microaggressions, Questionable Science, and Free Speech, there is substantial disagreement about precisely what constitutes a microaggression. . ."
"Notwithstanding, at some law schools, you can be sure that, as a part of bias and racism training, microaggressions, along with controversial concepts such as implicit bias, white privilege, institutional racism, and white supremacy, will be discussed. How does this proposal ensure that these difficult discussions will be conducted in a manner that is consistent with science and that welcomes diverse perspectives? It doesn't. And that places students, including the most vulnerable, at risk for being stereotyped and marginalized simply because they are members of a certain race - under the guise of ensuring diversity and inclusion." [Here, Professor Lamparello gives several moving examples.]
"Third, and relatedly, this training would likely be deeply divisive because it would alienate and marginalize students who want to be judged based on the content of their character, not the color of their skin."
"The language of the proposed changes is too vague and provides insufficient guidance to law schools, particularly regarding how to discuss these topics in a balanced manner that welcomes diverse perspectives. After all, does the proposal provide any checks on law schools to ensure that whatever training, orientation session, or course they adopt will be consistent with science, not reflect ideology, and welcome diverse perspectives? No."
"Thus, if those responsible for implementing bias and racism training lack ideological diversity, how can you expect that the training itself will reflect diverse viewpoints? It won’t."
"The Council should consider a different approach to increasing diversity in the legal profession and enhancing the voices of marginalized communities. Specifically, it should focus on the professional outcomesof minority students (and all students) at ABA-accredited law schools. It does no good to admit students, regardless of race, only to see such students struggle in law school, fail the bar exam, or obtain jobs that cannot possibly pay for the crushing and non-dischargeable debt that they often incur. As such, the Council should focus on the professional outcomes of graduates at ABA-accredited law schools to assess whether their stated goal of diversifying the profession is more than mere lip service. As they say, the proof is in the pudding."
"Ultimately, in a climate where misinformation, inflammatory rhetoric, and uncivil discourse characterizes public policy discussions, the Council would set an outstanding example by basing its decision on facts and evidence. Here, the facts and the evidence overwhelmingly demonstrate that this proposal should be rejected categorically."
In sum, Professor Lamparello has written a very convincing criticism of the proposed standard 303(c).