By Ralph Richard Banks & Richard Thompson Ford (Click here to view the entire P&R issue)
During the past several years, psychological research on unconscious racial bias has grabbed headlines, as well as the attention of legal scholars. The most well-known test of unconscious bias is the Implicit Association Test (IAT), a sophisticated and methodologically rigorous computer-administered measure that has been taken by millions of people and featured in major media. Its proponents contend that the IAT reveals widespread unconscious bias against African Americans, even among individuals who believe themselves to be free of racial bias.
A computer-administered test available over the Internet, the IAT is a compelling interactive experience that has been taken by millions of people and featured in print and broadcast media. The IAT measures the strength of the association between social categories (e.g., blacks or whites) and positive and negative attributes (e.g., “joy” and “love” versus “agony” and “evil”). Akin to a computer game for grownups, the IAT requires momentary immersion into the interactive medium. In a series of trials, the participant categorizes images or words that appear on the computer screen by pressing particular computer keyboard keys as quickly as possible. At the end of the exercise, the computer calculates a score that reflects the nature and magnitude of one’s implicit bias. Most participants are found to have an implicit bias against African Americans. The overt racism of the Jim Crow era, the psychological research suggests, has given way to racial bias that is predominantly unconscious.
In fact, the findings of the IAT are ambiguous. The characterization of the IAT as a measure of implicit bias depends on being able to distinguish implicit bias from conscious bias. Yet it is extraordinarily difficult to disentangle the two because, since the disavowal of racism during the civil rights era, research participants have become increasingly unwilling to openly express views that may be condemned as racist. Thus, the IAT could defensibly be viewed as a subtle measure of conscious psychological processes, of attitudes and beliefs that are known to oneself yet intentionally concealed from researchers. This empirical ambiguity has been practically eclipsed by the unconscious bias account. Why?
Scholars may focus on unconscious bias because they think it poses unique challenges for anti-discrimination doctrine. This explanation for the ascendance of the unconscious bias discourse is intuitively appealing and widely embraced. But it is wrong. Anti-discrimination law grapples as well, or as poorly, with unconscious bias as with covert bias. Neither statutory nor constitutional anti-discrimination law turns on the distinction between the two. While the research cannot distinguish between conscious and unconscious bias, the law (fortunately) does not require courts to do so.
The better explanation for the prominence of the unconscious bias discourse relates to the comforting narrative it offers about our nation’s progress in overcoming its racist history. Assertions of widespread unconscious bias are more palatable than parallel claims about covert bias. The invocation of unconscious bias levels neither accusation nor blame so much as it identifies a quasi-medical problem buried deep within us all, an ailment that distorts our thinking and behavior. People may be willing to accept that unconscious bias influences their behavior, even if they would vigorously deny harboring conscious bias. Assertions of conscious bias would open a constellation of vexing issues—for example, whether racial disparities reflect discrimination or group differences, whether discrimination may be rational, and if so whether it should be prohibited. The discussion of such matters would be uncomfortable for many and, in any event, would be unlikely to yield any quick consensus. The unconscious bias discourse promotes a (superficial) consensus that the race problem persists precisely by bypassing potential sources of disagreement.
Despite its ostensible political benefits, the unconscious bias discourse may disserve the cause of racial justice. Just as it misdescribes the IAT by eclipsing the ambiguity of its findings, the unconscious bias approach prompts people to acknowledge the persistence of the race problem by misdescribing it. The unconscious bias approach not only discounts the persistence of knowing discrimination, it elides the substantive inequalities that fuel conscious and unconscious bias alike. While we do not doubt the existence of unconscious bias, we do doubt that contemporary racial bias accounts for all, or even most, of the racial injustice that bedevils our society. The racial injustices that most trouble us are substantive—educational failure, large-scale incarceration, segregated and impoverished communities—and stem from a complex interplay of economic, historical, political and social influences. While historical bias has certainly played a role in producing these inequalities, it is fanciful to attribute their persistence to contemporary bias, unconscious or otherwise. The goal of racial justice efforts should be the alleviation of substantive inequalities, not the eradication of unconscious bias.
The unconscious bias discourse is as likely to subvert as to further the goal of substantive racial justice. A narrow focus on the IAT may fail as its empirical claims receive greater scrutiny, which would make it difficult for scholars who have linked their policy positions to the IAT to maintain the impartiality that is the hallmark of the scholar’s commitment to truth. But even emphasizing unconscious bias more generally would be a mistake.
The most fundamental problems with the unconscious bias discourse are that it reinforces a misguided preoccupation with mental state, and perpetuates an obsession with anti-discrimination law, rather than policy reform, as a means of realizing racial justice goals. If the goal is to eliminate substantive inequalities, then the task of racial justice advocates should be to say why those inequalities are objectionable and how to address them. Not every claim for racial justice needs to be addressed to a court applying anti-discrimination doctrine. The best political approach, over the long term, is to straightforwardly define and defend policy goals, and then figure out how to achieve them.
Ralph Richard Banks is Jackson Eli Reynolds Professor of Law. rbanks@law.stanford.edu
Richard Thompson Ford is George E. Osborne Professor Law, both at Stanford Law School. rford@stanford.edu
Banks is author of Is Marriage for White People? How the African American Marriage Decline Affects Everyone. Ford is author of Rights Gone Wrong: How Law Corrupts the Struggle for Equality, out from Farrar, Strauss & Giroux in October.
This article is adapted from the authors’ article, “(How) Does Unconscious Bias Matter?: Law, Politics, And Racial Inequality,” 58 Emory L.J. 1053 (2009).
