- National Center for Youth Law - https://youthlaw.org -

A Different Kind of Racism

Implicit Bias pervades society, but legal standards reflect an outdated understanding of how racial discrimination operates

By Thera Naiman

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One of these children is likely to face harsher school discipline than the others.

In any campaign season, political enthusiasts look to the polls as a way to monitor candidates’ relative success. When a candidate pulls ahead by a few percentage points, speculation abounds: could it be due to a boost in the economy? A US Supreme Court decision? An effective new campaign ad?

When President Obama’s lead over Republican challenger Mitt Romney waned in a recent poll of Virginian voters, state Senator Louise Lucas had another explanation for the results: race. Lucas, who is African-American, suggested that some voters support Romney simply because they “do not want to see anybody but a white person in a leadership position.” She continued: “I absolutely believe it’s all about race, and for the first time in my life I’ve been able to convince my children, finally, that racism is alive and well.”1

The second part of Lucas’ quote illuminates a peculiar truth about people’s perspective on race in the United States. Why did she have to convince her children of the persistence of racism in U.S. society? Because of our country’s sordid history of race relations, many think of discrimination only as the blatant acts of hate committed by extremist groups like the Ku Klux Klan, whose racist intent is clear.

This belief is reflected in our legal system, which primarily uses an intent standard that requires a plaintiff to prove a policy or action was intended to produce racially discriminatory results in order to show it is unconstitutional. A growing body of scientific research on implicit bias—the collection of unconscious mental processes that cause people to unknowingly act with racial bias – has shown that this emphasis on intent is flawed. Contrary to what Lucas’ children thought, implicit bias can have the same pernicious results as explicit racism.

Many groups say that the research on implicit bias should help push the United States legal system to use a legal standard that focuses on effect rather than intent in deciding cases involving racial discrimination. Such a standard already exists: it is known as the disparate impact standard, and national advocacy groups like the American Civil Liberties Union (ACLU), the National Association for the Advancement of Colored People (NAACP), and the Equal Justice Society (EJS) are lobbying on its behalf. Under this standard, practices that have an adverse effect on a minority group are discriminatory (and thus illegal), even if the practices in question are facially neutral. A disparate impact standard would enable victims of institutional discrimination to demand compensation for their injuries and would more accurately reflect the reality of how racial discrimination operates in our society.

Implicit bias: a scientific reality

Twenty-five years ago, Stanford professor Charles R. Lawrence III published a groundbreaking article2 criticizing the intent standard established by Washington v. Davis3 for its failure to address unconscious racism. Lawrence’s argument was (and remains) powerful, but his evidence rested largely upon Freudian notions of the Id and the Ego. Since 1987, the scientific research supporting Lawrence’s thesis has become much more sophisticated.

As neuroscience advances by leaps and bounds, scientists now have a better understanding of the mental processes that underlie implicit racism. Every day, our senses are bombarded with an overwhelming amount of information. It would take an extraordinary amount of mental energy for our brains to process each new stimulus individually. Instead, the mind uses neural shortcuts, known as “schemas”, to sort stimuli into more general categories. This enables us to bring a cup of water up to our lips without first taking the time to consciously identify the object that we’re holding.4

Implicit associations are crucial to our regular functioning—but unfortunately, these associations can produce skewed outcomes when they involve people rather than things. We live in a society that is deeply permeated by racism. As we grow up, we absorb cultural stereotypes and hierarchies through what professor Lawrence describes as “tacit understanding,” and these assumptions play a role in structuring our thinking.5 Implicit biases, as measured by tests like the famous Implicit Association Test (IAT) (see insert), are overwhelmingly hierarchy-driven. The results of these reaction-time tests reveal the extent to which we internalize the norms and biases of U.S. culture: people’s preferences for socially privileged groups often trump in-group favoritism, the tendency to favor members of one’s social group over outsiders.6

Cultural stereotypes are so pervasive that they can alter the chemistry of the brain. In a recent study, psychologists at the University of Southern California presented white participants with photographs of unfamiliar black and white faces while monitoring participants’ brain activity via functional magnetic resonance imaging (fMRI). The results showed that the participants experienced significantly greater activity in the amygdala—the part of the brain responsible for the fear response—when reacting to an image of a black stranger as opposed to a white one.7 Such a result corresponds with the cultural stereotype of the “violent black man” that is reinforced through constant repetition by television shows, movies, and the local news.8

Implicit Association Test

The Implicit Association Test (IAT) is a computer-based measure that reveals people’s implicit associations. The IAT asks participants to rapidly pair two given concepts (e.g., white and good, or black and good) as they flash across the computer screen. Based on the premise that easier tasks take a shorter time to complete, the test measures reaction times in order to gage the level of mental association between the two concepts. Project Implicit [2], an educational resource and research website, offers IATs that address a number of topics, including weight, race, age, and sexuality. The tests are available in dozens of different languages, including Flemish, Bulgarian, and Thai.


Implicit bias persists despite the election of an African-American president

Four years ago, Barack Obama’s election to the presidency sparked a flurry of speculation about whether the United States had finally become a post-racial society. The answer, according to research by Brian Nosek of Project Implicit (an educational outreach and research organization), is a resounding “no.” Using variants of the Implicit Association Test, Nosek and his colleagues measured little to no systematic change in implicit and explicit racial attitudes over the two and a half years before, during, and after the 2008 election season.9 The scientists concluded that the dream of post-racial America remained just that—a dream. In a summary of their research, they warned that malleability of racial attitudes depends on more than the mere presence of high-status public figures who do not conform to racial stereotypes.10 In other words, the election of an African-American president cannot undo the implicit (and explicit) biases that operate in millions of minds due to centuries of structural inequalities.

In fact, elections themselves may be influenced by implicit bias. The scientists at Project Implicit are currently conducting research that could confirm Louise Lucas’s suspicions about racial bias among voters. Project Implicit has unveiled a new IAT called “Decision 2012” that measures participants’ reaction times as they categorize “good” and “bad” words and “American” and “foreign” images with the candidates’ names. As the scientists remind us, “this and future research will clarify the way we understand thought, judgment, and action.”

Implicit bias pervades systems affecting youth

The education and juvenile justice systems have well documented and often dramatic racial disparities. However, the intent standard makes it difficult for advocates to mount legal challenges to racial disparities; even when discriminatory effects are well proven.

The data on school discipline reflects the fact that implicit racial bias is most likely to rear its ugly head in decisions involving high levels of discretion.11 Youth of color are at much greater risk than their white peers of being punished for discretionary violations—that is, actions for which the school can choose whether or not to punish the student, as contrasted to offenses that must be met with specific punishments. African-American students in their first year of high school are 31 percent more likely to receive a discretionary school disciplinary action than white students with similar academic profiles.12 These discretionary actions include offenses like “disorderly conduct,” an ambiguous term that can be applied to a broad range of behaviors.

School discipline is generally meted out by teachers—a population that is primarily middle-class and more than 80 percent white.13 While most teachers, regardless of race, are genuinely committed to supporting their students, educators are not immune to the hazards of implicit racial bias. In an ethnographic study of a school in a primarily African-American neighborhood, Rutgers University Professor Nora Hyland found that even the most well-intentioned teachers were often guilty of “unwittingly perpetuat[ing] a racist status quo.”14 Although they believed their teaching styles to be race neutral, Professor Hyland’s research showed that many of the teachers studied held low expectations of their black students and showed a distinct lack of faith in their family structures. Teachers often described their students’ families as “dysfunctional”—an adjective that Hyland identifies as belonging among the “racially codified language that [affirms] Whiteness as the norm.”15 These teachers’ intentions were good, but their actions produced racially disparate results.

One young, idealistic teacher—a self-described activist committed to democratic ideals and intellectually curious about matters of race and racism—recalled an instance in which she believed implicit racial bias had motivated her own actions in the classroom. She had sent a new student to the principal’s office for rolling his eyes—a discretionary punishment that she chose to make on this particular occasion in order to discourage him from misbehaving in the future. The school principal gently asked the teacher whether she would have made the same decision had the child been a girl. The teacher reflected on her reaction: “I appreciate her [the principal] telling me what she wanted to say without getting really confrontational about it. And I think she probably was also thinking, ‘Would you have done that if your new student was White?’ And I thought about that and I don’t think I would have. So I know that there are things that I wouldn’t have even thought about.’”16 This teacher did not consciously act in a racially discriminatory manner, yet her disciplinary decision had that effect.

Research also shows that youth of color face implicit bias in the juvenile justice system, including during the sentencing process. In a study published earlier this year, Stanford University psychologists asked participants (all of whom were white, to reflect the fact that whites are statistically overrepresented on juries) to read about a young male who had committed a violent crime. In half of the stories, the young man was black; in the other half, he was white. Afterwards, the participants were asked to report their views on a variety of juvenile justice issues. The Stanford team found that the participants who had read about a black juvenile offender were more likely to favor harsh punishments—such as life imprisonment without parole – for all juvenile offenders.17 The implicit bias revealed by this study may help explain why a staggering 84 percent of the youth who received sentences of life without parole as of 2009 were African-American.18 Racial disparities exist across the juvenile justice system: youth of color are more likely than whites to be placed in detention, transferred to adult court, and receive severe prison sentences.19 Under the current intent standard for proving racial discrimination, it would be incredibly difficult to prove that this stark disproportionality is unconstitutional. However, a disparate impact standard that allowed for consideration of the research on implicit bias could provide some hope for addressing these racial disparities through legal challenges.

Washington v. Davis

In 1976, the Supreme Court ruled against two African American men who claimed that the hiring practices of the Washington, DC police department were racially discriminatory. The department required applicants to take a verbal skills test that blacks failed at a higher rate than whites. The respondents, who had not been hired, argued that the test violated the equal protection clause because it disproportionately disqualified blacks for police service. The Court ruled against the two men, thereby establishing the rule that under the 14th Amendment, “a law or other official act […will not be] unconstitutional solely because it has a racially disproportionate impact.” This rule is known as the intent standard, and it places the burden of evidence on the plaintiff, who must provide proof of discriminatory intent on the part of the state. Proving that discriminatory intent exists is a difficult task—especially in the case of institutional racism, when policies and actions may be motivated by unconscious bias.

The current legal standard for proving racial discrimination ignores the existence of implicit bias and must be changed

The persistence of unconscious bias proves that the logic behind the intent standard is faulty. Discrimination often operates without malicious motives, but unfair results ensue nonetheless. For this reason, it is imperative that the intent standard be abandoned. This is no small task. A long-standing United States Supreme Court case, Washington v. Davis, established the intent standard and specifically says that proof of disparate impact is not sufficient to prove racial discrimination (see insert). The United States Supreme Court would have to overturn this decision in order to change the legal standard for proving racial discrimination to a disparate impact standard that takes into account the reality of implicit bias.

In recent years, the movement to end the use of the intent standard has gained momentum. Awareness about unconscious bias and structural discrimination has steadily grown, thanks to coalition-building efforts among members of the academic, legal, and scientific communities. Alison Elgart of the Equal Justice Society (EJS), a national legal organization dedicated to fighting institutional racism, says that the fight against the intent doctrine has shown “noticeable improvement” in recent years. Within the past 12 months alone, two well-known law professors published a book on the subject20 and 11 state Attorney Generals submitted an amicus brief addressing implicit bias in a case involving the validity of disparate impact claims under the Fair Housing Act.21 This June, hundreds of lawyers, scholars, judges, and community advocates gathered at a conference in Boston to discuss legal and political strategies for mitigating the effects of implicit racial bias. These advocates support use of an alternative legal standard that focuses on disparate impact rather than intent.

The disparate impact standard is hardly revolutionary: the United Nations’ International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) defines discrimination as “any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.” (emphasis added)22 The emphasis on effect is important: ICERD does not require proof of discriminatory intent, which makes the convention’s definition of discrimination consistent with scientific research on implicit bias.

The United States refused to sign the convention for almost 30 years. Since 1994, when it finally ratified ICERD, American policies have often run afoul of the convention. The international committee responsible for monitoring states’ compliance with ICERD has expressed multiple concerns about stark racial disparities within the U.S. criminal justice system, citing the “disproportionate impact [of] persistent systemic inadequacies.”23 It has also criticized the American policies of racial profiling, the death penalty, and juvenile life without parole for generating racial disparities that “may be regarded as factual indicators of racial discrimination.”24

The Politics of Welfare

Without explicitly mentioning race, many politicians manipulate constituents’ implicit racial associations in order to win votes. Welfare has been a racialized topic since Ronald Reagan painted a scathing picture of the so-called “Welfare Queen” during his 1976 presidential campaign. His description of a morally unscrupulous woman who drove a pink Cadillac and spent her welfare checks on liquor made no outright mention of race, but it did “fit a narrative that many white, working-class Americans had about inner-city blacks,” says history professor John Hinshaw.27 In the 2012 election, Republican candidate Mitt Romney – who is courting white voters – has accused President Obama of seeking to create a “nation of government dependency” by making it easier for Americans to receive welfare benefits. The actual demographics of welfare recipients are more nuanced than the political rhetoric surrounding the topic. According to Temporary Assistance for Needy Families (TANF) data from 2008, more African Americans than whites did receive welfare benefits – but given that 25.8 percent of blacks live below the poverty as opposed to only 9.4 percent of whites, whites benefit disproportionately from this type of federal funding.28

Shortly after President Obama’s inauguration in 2009, he received a letter from the ICERD committee urging him to ramp up the fight against racial discrimination in the U.S. The letter’s sentiments were echoed by human rights groups across the country. Jamil Dakwar, Director of the American Civil Liberties Union Human Rights Program, warned that in order to have a successful presidency, “the Obama administration must change gears and prioritize human rights at home.”25

The Obama administration seems to have taken these suggestions to heart. According to Alison Elgart of EJS, the administration has “demonstrated a commitment to pursuing cases regarding important civil rights issues, including voting rights, marriage equality, housing rights, and immigration.” One such issue was the Department of Justice’s decision in 2011 to end the legal defense of the Defense of Marriage Act against challenges by same-sex couples married under state law. In the context of disability rights, the Obama administration has also acknowledged the existence of institutional bias; a statement released by the White House affirms the President’s commitment to “ending institutional bias [by] rigorously enforcing the Supreme Court’s Olmstead decision, which affirmed that unjustifiable institutionalization of a person with a disability who, with proper support, can live in the community is discrimination.”26 The President’s acknowledgement of institutional bias is significant, as is his willingness to identify non-malicious actions as discrimination. The Obama administration’s record on these issues has convinced many equal protection groups, including the Equal Justice Society, that the administration is committed to fighting personal and structural discrimination alike.

It remains to be seen how the battle over intent vs. effect in American jurisprudence will be resolved. In the meantime, research on implicit bias and its pervasiveness in U.S. society should continue to bolster the fight for a legal standard that reflects the realities of racial discrimination. Indeed, existing knowledge about the subconscious has only begun to scratch the surface of the enigma that is the human brain. For now, we should fight for a disparate impact standard and stay mindful of the ways that our implicit biases influence our actions.

Thera Naiman was a 2012 Communications Intern at NCYL. She is a junior at Swarthmore College, majoring in History.

  1. Laura Vozzella, Va. State senator blames racism for Romney gains, Washington Post Blog – Virginia Politics, July 24, 2012, http://www.washingtonpost.com/blogs/virginia-politics/post/vastate-senator-blames-racism-for-romney-gains/2012/07/24/gJQAArsQ7W_blog.html
  2. Charles R. Lawrence III, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 Stan. L. Rev. 2 (1987).
  3. Washington v. Davis, 426 U.S. 229 (1976).
  4. Robert J. Smith & G. Ben Cohen, Choosing Life or Death (Implicitly), in Implicit Bias Across the Law (Justin D. Levinson, Ed., 2012).
  5. Lawrence, supra, at 323.
  6. Jerry Kang & Kristin Lane, Seeing Through Colorblindness: Implicit Bias and the Law, 58 UCLA L. Rev. 465, 476 (2010).
  7. Jaclyn Ronquillo, et al, The effects of skin tone on race-related amygdala activity: an fMRI investigation, Social Cognitive and Affective Neuroscience, 2(1): 39-44 (March 2007).
  8. Eileen E. S. Bjornstrom, et al, Race and Ethnic Representations of Lawbreakers and Victims in Crime News: A National Study of Television Coverage, Social Problems, Vol. 57, No. 2, pp. 269-293 (May 2010).
  9. K. Schmidt & B. A. Nosek, Implicit (and explicit) racial attitudes barely changed during the campaign and early presidency of Barack Obama, Journal of Experimental Social Psychology (2010).
  10. Id.
  11. Smith & Cohen, supra.
  12. Tony Fabelo, et al, Breaking Schools’ Rules: A Statewide Study of How School Discipline Relates to Students’ Success and Juvenile Justice Involvement, (Council of State Governments Justice Center and The Public Policy Research Institute, Texas A&M University) July 2011.
  13. National Center for Education Statistics, http://nces.ed.gov/programs/coe/indicator_tsp.asp [4]
  14. Nora E. Hyland, Being a Good Teacher of Black Students? White Teachers and Unintentional Racism, Curriculum Inquiry, Vol. 35, No. 4, p. 430 (Winter 2005).
  15. Id. at 445.
  16. Id. at 453.
  17. Aneeta Rattan et. al, Race and the Fragility of the Legal Distinction between Juveniles and Adults, PLoS ONE (2012).
  18. Paolo Annino, et al, Juvenile Life Without Parole for Non-Homicide Offenses: Florida Compared to Nation, FSU College of Law, Public Law Research Paper No. 399 (2009).
  19. Non-Judicial Drivers into the Juvenile Justice System for Youth of Color, Report, (W. Haywood Burns Institute, San Francisco, CA) 2012.
  20. Justin D. Levinson & Robert J. Smith, ed. Implicit Racial Bias Across the Law (2012).
  21. Magner v. Gallagher, 132 S. Ct. 1306 (2012), cert. dismissed.
  22. International Convention on the Elimination of All Forms of Racial Discrimination (1969), http://www2.ohchr.org/english/law/cerd.htm [5]
  23. Id., at n. 107.
  24. CERD, Consideration of Reports Submitted by State Parties under Article 9 of the Convention: Concluding Observations, United States of America 2 CERD/C/USA/CO/6 (2008), www2.ohchr.org/english/bodies/cerd/docs/ [6] co/CERD-C-USA-CO-6.pdf.
  25. Press Release, ACLU, Committee on the Elimination of Racial Discrimination Finds Progress Lacking and Calls for Legislation (Oct. 8, 2009), http://www.aclu.org/human-rights_racial-justice/un-human-rights-body-issues-decisive-observations-racial-discrimination- [7]
  26. http://www.whitehouse.gov/issues/disabilities [8]
  27. John Blake, Return of the ‘Welfare Queen,’ CNN, Jan. 23, 2012, http://www.cnn.com/2012/01/23/politics/weflare-queen/index.html [9]
  28. National Poverty Center (University of Michigan, Gerald R. Ford School of Public Policy).