The Beast Within
Do our hidden personal prejudices affect justice? College of Law researchers explore and confront the often unexamined legal issue of subconscious bias.
written by Charles McNair
The second-year law school students watched in amazement.
A woman gave testimony in a domestic violence hearing in Cobb County Superior Court. Instead of the subdued, tearful, intimidated stereotype of a domestic abuse victim, the woman seethed with fury, crying out.
She blew student preconceptions apart like a bomb.
After the hearing, Tiffany Roberts (J.D. ’08), adjunct professor and deputy director of the National Institute for Teaching Ethics and Professionalism (NIFTEP), debriefed the Fundamentals of Law class, which she co-teaches with Clark D. Cunningham, the W. Lee Burge Chair in Law and Ethics and director of NIFTEP.
Roberts asked a pointed question to the students, who had been watching the court proceedings as part of the class.
“This woman wasn’t the meek stereotype most people expect to find in a case of domestic abuse,” she said. “Did her defiance and anger make you think — even for an instant — that she may have caused, or even deserved, her domestic abuse?”
Roberts then asked an even tougher question.
“Could there possibly be internal bias at work in your judgment about her?”
In that moment, Roberts forced her class to stare into a deep, truthful mirror and confront an important and too often unexamined issue of the legal system: subconscious bias.
Professor Andrea Curcio, Roberts’ colleague, makes the sensitive subject of personal bias a focus of her academic work.
“Understanding subconscious biases,” Curcio said, “their pervasiveness and their impact on perceptions, interactions and analyses, helps prepare lawyers to represent people from cultural and racial backgrounds different from their own and to address both individual and institutional injustice.”
The bias blind spot
On close examination, a widespread and fundamental assumption of American life — that our justice system is truly just — threatens to fall apart. Bias runs like a jagged scar through the legal decision-making of the United States, from the nation’s beginnings to present day.
Curcio and fellow researchers have conducted two surveys to examine subconscious bias among law students. One canvassed 125 incoming law students and 13 upper-level clinic students. A second was administered to 591 incoming and upper-level students at two separate schools. Curcio’s paper discussing the survey results (“Addressing Barriers to Cultural Sensibility Learning: Lessons from Social Cognition Theory”) appeared in the Nevada Law Journal in 2015.
“The survey results suggest many students believe lawyers are less susceptible than clients to having, or acting upon, stereotypes or biases,” Curcio said.
Curcio’s work powerfully suggests that some law students do not understand the pervasiveness of bias in themselves or in other well-meaning people.
“Some students don’t recognize that legal analytical training is unlikely to trump a lifetime of subconscious cognitive processes,” Curcio said. “And because they believe that they already understand and can recognize their biases, students may resist education aimed at helping them recognize how personal biases affect their interactions with clients and the legal system.”
Stereotypes start early
Stereotypes form in the human consciousness at a very young age. Infants and toddlers begin to categorize people based on easily observable characteristics such as skin color, gender, age, etc.
Racial stereotypes can be embedded before children enter kindergarten. The social experiences that create those stereotypes “influence how people perceive and assess facts, attitudes, legal problems and legal processes,” Curcio said.
Roberts and Curcio contend that no one — lawyer, tinker, tailor, spy, whoever — breezes through the world free of personal bias. Even well-meaning people can be shockingly biased in the ways subconscious prejudices color their perceptions and decisions.
Curcio’s Nevada Law Journal paper gives a telling example.
It cites an experiment in which five partners from different law firms deliberately inserted grammatical, factual and analytical errors into a legal research memo about trade secrets in Internet start-ups. Then, 53 different law firm partners were asked to participate in a study on writing competencies of young attorneys and asked to edit the memo for errors and rate its overall quality. The partners received exactly the same memo. A cover page instructed that the memo was drafted by a male third-year associate who graduated from New York University School of Law. Half the partners editing the memo were told the associate was Caucasian. The other half were told the associate was African-American.
The identical memo averaged statistically significant lower overall ratings for the fictional African-American associate than the Caucasian. Partners found more errors and made more negative qualitative comments in the purportedly African-American memo for exactly the same work.
When bias becomes personal
Roberts, a black woman, knows firsthand what happens when subconscious bias, or worse, enters the legal system.
Roberts’ background commands respect. She has been teaching Fundamentals of Law, which integrates a clinical component letting students represent victims of domestic violence in protective order proceedings, at Georgia State since fall 2011. She started her professional career as a public defender in the Atlanta Judicial Circuit.
As a private attorney, Roberts handles tough felony and civil rights cases. Atlanta Mayor Kasim Reed appointed her to represent a community organization on a panel that screened applicants for the chief of police for the city. She does community organizing on policing issues, and she represents many clients from poor neighborhoods and bad situations.
So, what sometimes happens when this accomplished attorney shows up to represent a client?
“I’ve been to courtrooms in jurisdictions just outside of Atlanta where it’s not assumed that I’m an attorney,” Roberts said. “They assume I’m the defendant’s girlfriend, and I’m told to ‘go sit over there.’ I’ve never seen that happen to a white person with a briefcase. It takes a different level of patience to deal with that on a consistent basis.”
Roberts and Curcio share an understanding that as long as humans are imperfect, the legal system will be imperfect, too.
But they also strongly believe the one acceptable bias in law should be a bias toward better justice.
This is an edited version of a story originally published in Georgia State Law’s Implicit Bias Issue.