By Olati Johnson (Click here to view the entire P&R issue)
Professors Banks and Ford are correct to highlight the dangers of the current preoccupation with implicit bias among academics and civil rights advocates. The central problem is not an empirical ambiguity in the Implicit Association Test (IAT). And, notwithstanding the Court’s recent decision in Walmart v. Dukes questioning expert testimony that relied in part on the science of implicit bias, I am more hopeful than Professors Banks and Ford about the utility of implicit bias research for law and policy. Yet I agree with their essential observation that implicit bias is too thin an account of the forces that maintain contemporary racial inequality.
Of course, I understand the appeal of the implicit bias research. The findings of the IAT and other research on unconscious bias appear to provide an empirical account for continuing racial inequality, potentially countering narratives that focus on individual attributes. Also, the unconscious bias account centers not on historic discrimination, but on contemporary discrimination in which we are all complicit. But in presenting implicit bias as universal, something that we all harbor and experience, this account obscures the extent and multiplicity of barriers facing the most disadvantaged groups in our society. Moreover, an emphasis on individual-level behavior—whether covert or explicit —fails to show how individual processes are reinforced or produced by private and public institutions. In short, it omits what we have typically called the “structural” aspects of inequality.
In my view, our challenge as scholars and advocates concerned about inequality should be to provide rich empirical accounts of the contemporary forces that sustain inequality. Just terming these inequalities “structural” will not go far enough. The term conjures up racial discrimination that is too pervasive and amorphous to be quantified or remedied. Instead, to capture the appeal of empirical accounts of bias, we need to similarly document how the structural aspects of racial inequality are maintained today—for instance, by showing how racialized geographic spaces operate to limit economic and social advancement or how race-specific networks and poor social capital contribute to racial disparities in employment. In addition, rather than simply concentrating on the individual, we need to show the symbiotic relationship that exists between individual-level bias and the macro-level forces that sustain inequality.
Rich accounts are manifest in research showing how race-neutral policies interact with individual-level bias to produce racial disparities in juvenile justice confinement; in Deidre Royster’s account of how segregated job networks exclude African Americans from blue-collar jobs; and Devah Pager’s work showing how employer attitudes, discrimination and the racialized consequences of mass incarceration affect labor market outcomes for African Americans. Lawyers and advocates should build on this research to promote a better understanding of contemporary racial inequality, and to alter the policies and institutional practices that produce it.
At the end of their piece, Professors Banks and Ford argue that the contemporary problems of racial inequality are better addressed by “policy,” not law. Their suggestion is that law is best suited to eradicating bias, and has little purchase in addressing more systemic barriers. Here I would disagree. Law, after all, is about litigation and regulation, advocacy and problem-solving, about legislatures and policymaking bodies. I see promise in litigation and policy advocacy that promotes spatial integration and regional equity in housing, challenges disparities in the criminal and juvenile justice system, furthers transportation equity, and battles occupational segregation and pay inequities in low-wage jobs. These efforts combat not just discrimination, but what Glenn Loury calls “development bias”—the policies and practices that lead to “unequal chances to realize one’s productive potential.” These interventions understand that civil rights lawyering is more than anti-discrimination practice, it is challenging the multitude, complex and enduring forces that sustain racial inequality.
Olati Johnson a PRRAC Board member, is Associate Professor at Columbia Law School. johnsonolati@yahoo.com
