As part of the School’s ongoing diversity initiatives, Fordham Law held a lunchtime lecture on August 30 to educate the entering 1L class about the idea of implicit bias and its relevance to the legal profession. Professor Tanya K. Hernández, who delivered the talk, framed her comments around Blind Spot, a book written by two prominent psychologists that explores unconscious mental processes that may subtly influence judgments made about individuals based on their race, gender, ethnicity, sexuality, and other social-group status.
While the book makes no explicit reference to the law or legal professionals, Hernández, who serves as associate director of the Center on Race, Law and Justice, said the subject “has everything to do about lawyers.”
“Being a good lawyer is more than just learning the content and the rules,” she said. “As guardians of the law, we are required to adhere to codes of professional conduct, or risk losing our license to practice law.”
Among those codes of conduct are those promulgated by the New York State Bar Association, which prohibits unlawful discrimination in the practice of law, including in the hiring, promoting, and determining condition of employment. These particular rules of misconduct relate directly to implicit bias because these biases engender unconscious discrimination.
“Implicit biases predict behavior,” Hernández said. “Those who are higher in implicit bias have been shown to display greater discrimination in their actions.”
Hernández cited a number of studies that support the claim. In one example specific to the legal profession, 60 partners from 22 law firms of various sizes were given a memo written by two hypothetical third-year associates. Both associates were named Thomas Meyer. For half of the partners, Meyer was identified as black. The other half was informed that Meyer was white. The white associate received higher ratings overall than the black associate, even though the memos were identical.
The first step in ameliorating the discriminatory effects of implicit bias is recognizing that the bias in fact exists. A consortium of social psychologists and researchers called Project Implicit administers an implicit-association test (IAT) to measure automatic associations between individuals and ideas. According to the results of over a decade of testing from more than 6 million participants in the IAT, the majority of Americans have some form of implicit bias.
“With respect to race, the IAT testing reveals lingering suspicion of African Americans,” Hernández said. “Seventy-five percent of whites, Latinos, and Asians all show an unintentional bias for whites over blacks. Even blacks themselves have shown this preference for whites. We are all influenced by our social and cultural training and cues.”
To respond to implicit bias, the law ideally would identify and isolate the operation of implicit bias, according to Hernández. She gave an example from the world of classical music, where orchestral companies have taken to putting up a screen between hopeful musicians and their potential employers so that the latter cannot see whether the candidate is male or female.
1L Deanna Cohen poses a question about implicit bias.
During a Q&A following the presentation, students asked about implicit bias in various legal settings, including in courtrooms, police line-ups, and even closer to home—at Fordham Law School.
“What initiatives is Fordham University taking to progress or make this a better situation for African Americans and for all disparaged groups?” asked 1L Jeanine Botwe.
Hernández replied with steps the Law School is taking with regard to its admissions, the diversity-related projects of its centers and institutes, and awareness events similar to the very one she was speaking at.
“We’re not waiting until you graduate and take a continuing legal education course…to learn about implicit bias,” Hernández said. “We want you to know from the moment you walk in the building.”
