CBA Record January-February 2020

group of otherwise unobjectionable black and multi-racial adults and children were celebrating one of the children’s birthdays. They were asked to leave when a white family of “regular customers” expressed displeasure that the manager had allowed this. Naperville has since initiated bias training to calm the long-time integrated community, and the restaurant chain was forced to fire staff and permanently ban the white family from its premises. These and many other instances are examples of group dynamics, what is some- times called affinity bias. Its genesis lies in our need to categorize. Our brains use cat- egories or schema to organize information. We need to categorize to survive, and we do. We have schema for items and events; we also have schema for people. Without direct thought, we categorize people into groups based on obvious factors such as race or age or gender. Such group identities are one of our major categorization mecha- nisms and once categorized, we tend to prefer our own and respond differently and more positively to those in our in-group as compared those who are not. Of course, such quick categorization is not always cor- rect; categories are often stereotypes where we fall prey to “the general inclination to place a person in categories according to some easily and quickly identifiable char- acteristic such as age, sex, ethnic member- ship, nationality, or occupation, and then to attribute to him qualities’ believed to be typical of members of that category.” Such tendencies suggest a need to be more mindful and to individuate. Confirmation Bias Perhaps the most significant bias for those of us working in legal settings is confirma- tion bias: We see what we expect to see. What we expect is more accessible to our brains than what we don’t expect. We tend to seek, value, and remember information that supports our beliefs while ignoring or devaluing other information. It is easy to see how this bias helps maintain our stereotypes. Dr. Arin Reeves, a highly respected Chi- cagoan, conducted what is now an iconic study on this point. In Written in Black & White: Exploring Confirmation Bias in Racialized Perceptions of Writing Skills , Dr. Reeves shows the confirmation bias that

an experiment where participants who were asked to view and rate an ambigu- ous “shove” rated the behavior as “more violent when it was performed by a black than when the same act was perpetrated by a white. That is, the concept of violence was more accessible when viewing a black than when viewing a white committing the same act.” Without more direct informa- tion, interpretation of the same (ambigu- ous) actions differed by how accessible stereotypes—here including stereotypes of aggression associated with blacks—were to the perceiver. In the legal profession, where we are told as students to “revel in ambiguity,” this tendency for ambiguity to devolve into stereotype suggests we need perhaps revel less and get specific informa- tion more. Discretion The opportunity to exercise discretion, without sufficient information (or with ambiguous information) or without limits on that discretion, is also common for implicitly biased responses to occur. Of course, in the legal system, much like ambiguity, the exercise of discretion is virtually omnipresent; it even has a spe- cial name when prosecutors are involved. A straightforward example is a raise or starting salary where the employer has discretion to offer compensation within a set range. For another example, data shows that the severity of one’s prison sentence relates to one’s skin color. To reiterate what we said above, If one does not believe, as we do not believe, that the judges who are imposing these sentences are racists or some other kind of *ists, then we need look elsewhere—in part to implicit bias—for explanations and ways to interrupt misuse of discretion. Groups/Affinity Bias Most people are familiar with the stereo- typing of customers in a Philadelphia Star- bucks where staff called police expressing concerns about trespassing by black busi- nessmen who were waiting for colleagues to join them at a meeting. The incident garnered national attention and protest, such that Starbucks felt compelled to shut its stores nationwide to train employees on bias. In Illinois, a similar incident occurred at a Naperville Wild Wings restaurant. A

if the proper stimulus is applied, it comes to the front, and more often than not one is deceived in believ- ing that it is justice speaking to him; when in fact it is prejudice, blinding him to all justice and fairness. Ms. Smith won a new trial for Hay- ward, who was eventually freed, though not on these grounds. Looking back, we might rephrase Smith’s argument today: the jurors may well have conscientiously and explicitly held to their express avowal of being able to decide the case without racial prejudice, but Smith suggests that race and related stereotypes came into their decisions implicitly. Specific Bias-Prone Situations Translating Hayward and the more recent research to today reveals that these implicit biases are particularly likely to be in play where the information we have is ambiguous, where discretion is too broad, where there is not a critical mass of diverse decision-makers, and where other stressors are high. In these situations, we see what we expect to see, find what we expect to find. Some might say that, without more direct thinking, we overgeneralize and fall into our stereotypes. While there are many contexts and categories of bias, we discuss a selected few bias-prone situations here: the contexts of ambiguity and discretion, and the bias examples of group dynamics, confirmation bias, and, lastly our own tendency to be blind to our own biases. Ambiguity Implicit bias often goes to the perceiver or the decision-maker’s point of view. Consider workers crowding to get into an elevator to get to work on a busy morn- ing. Knowing that the door will close soon, a rider reaches out touching riders in front, urging them to get in quickly; or perhaps that first rider is more aggressively touching others to get them out of the way. If someone were filming this, when the film is shown, the person doing the pushing is a person of color, the audience likely perceives the action as a shove, but if the person who reaches out is not an individual of color, the audience perhaps chuckles, believing it is an act of fervent encouragement. This common morning scenario mimics

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