Implicit Bias and Stereotype Threat:Risks in the Law School Setting

Rachel D. GodsilEleanor Bontecou Professor of LawSeton Hall University Law School

All Powerful

Harvard Study (2004)

•A male student was 50% more likely to speak voluntarily at least once during a class meeting than was a female student.•Compared with female students, men were 64% more likely to speak three or more times in a class, and 144% more likely to volunteer three or more comments.

•Male respondents were much more likely than females to assess themselves as being in the top quintile of their class in legal analysis (33% v. 15%) and quantitative reasoning (40% v. 11%).•Women’s results were better than they anticipated: 31% of the grades for men were A- or better, compared with 25% of women’s grades.

Gender in Law Schools

Yale Gender Study 2012

• In 2012, men accounted for 58% of responses in class compared to 42% from women. The disparity was largely eliminated by cold-calling.

• In 2010, men received 58.5% of Court of Appeals clerkships while women received 41.5%. In 2009, the numbers were less equal: 64.3% to men, 33.7% to women.

• “I think, across the YLS population, men seem more confident and worry less about the reception their comments will receive.”

• “Women are more likely to think their good work in class will produce professional success and thus to discount the value of faculty relationships and advocacy.”

Gender in Law Schools 2

Race in Law Schools

Almost everyone – White or Black, middle-class or poor – finds law school hard and soul crushing. What made my experience different, and what I share with the Black first-year School of Law Students today, was added stress, anxiety and hostility due to my race. Gregory Davis, http://newsone.com/2942975/ucla-school-of-law-student-addresses-backlash-to-diversity-video/

Race – the numbers

• Black and Latino students comprise approximately 7% of incoming law students.

• Often, the numbers are lower in any particular school.

• The LSAT likely underestimates student of color capacities by at least 3 points.

• Yet it over-predicts the success of Black and Latino students.

Are law professors sexist and racist?

• Not necessarily.

• The vast majority of lawyers and law professors undoubtedly want to be fair.

• Why are the outcomes not reflecting the aspirations?

• What challenges do you face?

Name the colors of the text below.

Name the colors of the text below

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How is this relevant to gender or race?

• The effect of our society’s gender and race stereotypes on how our brains operate…

• We want to be egalitarian, but our brains’ automatic functions may make that more difficult than it seems.

What schemas do for us

Our brains automatically translate information into schemas

Schemas

Categorizing People Stereotypes, Preferences, and Traits

1)Schemas that Categorize People , e.g. child, elder, man, woman, White, Black, Catholic. Associations that are generalized about those schemas = Stereotypes

2)Positive Associations With Stereotypes = Preferences

3)Negative Associations With Stereotypes = Prejudices

• We make automatic assumptions about people based upon the stereotypes we ascribe to them and we tend to view their actions through that lens.

Schemas and People

Categorizing People

Stereotypes

• Schemas about people are referred to as “stereotypes” and we use them all the time.

• Should we/can we try never to use stereotypes?

Always a problem?

How do we measure bias?• Implicit Association

Test (found at Project Implicit)

• Measures time differences between “schema consistent pairings” and “scheme inconsistent pairings”

• Most people perform second task more slowly.

The default in a given category

What does this person look like?

• A Swiss newspaper reports: “An American was accused of tax laundering and held for questioning.”

Translation of the Implicit Association Test

Male Female

• Leader• Work• Mathematical• Scientific• (Tax Defrauder)

• Analytic

• Nurturer• Family• Literary• Artistic• (Pays Taxes)

• Emotional

The Gender Default

Who is your lawyer

05/03/23

Tom Meyer (White) Tom Meyer (Black)

“generally good writer but needs to work on”

“has potential”

“good analytic skills”

2.9/7 spelling grammar errors were found

4.1/6 technical writing errors found

“needs lots of work”

“can’t believe he went to NYU”

“average at best”

5.8/7 spelling grammar errors found

4.9/6 technical writing errors found

The Race Effect (2014 Nextions study)

05/03/23

What we should know . . .• Along with or instead

of negative associations toward an out-group, most people tend to hold favorable attitudes toward in-groups.

• “In-group” preference explains how people can legitimately feel “non-racist” or free from gender stereotypes.

• “Attributional ambiguity” – wondering whether someone is reacting to your identity – is exhausting.

• “Malleability of merit” – people frequently alter their criterion depending upon whether fits in-group member.o Police chief finalisto Construction manager

Book smart v. street wise Education v. experience

What else should we know?• Social judgeability

theory:o Interpreting

information in a “schema consistent” way.

o Is Hannah smart? Only told low-

income or rich. Then watch Hannah

in the classroom for 12 minutes.

• Confirmation bias:o If acts are consistent

with a stereotype or schema, the acts will “confirm” the truth of the stereotype.

o If acts are inconsistent, they are often seen as outliers or exceptions so the stereotype’s validity stays intact.

What Should Institutions Do? Create “identity

blind” evaluation mechanisms: during the early phases, associates’ work should be evaluated “blind” so that gender or racial stereotypes don’t determine who is a “star.”

Avoid Ambiguity: when criteria for decisions are vague, risk is stereotypes and associations will come into play.

Institutionalize mentoring opportunities: informal mentoring tends to favor those comfortable self-promoting and in-group overlap. (caveat)

Failure to track: if we are keeping data about racial, ethnic, or gender outcomes, we are both more likely to be vigilant and can identify problems.

Derived in part from (National Center for State Courts, 2013)

The power of presumption Create a team

Recognizing both that most people want to be egalitarian and that implicit associations can nonetheless affect their behavior can be very powerful.

We can guide people to walk the walk. (humor helps)

• Allies can help identify land-mines and clarify when our identity is implicated.

• Your team is a respite when needed and a sounding board.

If applied to us?

Create a Team

Anticipation and detachment (Defoe, 2013)

Joining the network

•We are not homogenous – and will experience our identities – gender, race, ethnicity, class -differently.•If and when experience stereotyping behavior, work to develop a sense of objectivity (it’s them, not me).

• Networks are crucial – find one in which you can be most yourself.

• Pursue mentors – who are or have been where you want to go, and who you actually like.

• Identify your style.

Strategies

Stereotype threat• The apprehension arising from a negative

stereotype in a situation where stereotype or identity is relevant, and thus confirmable.

• Everybody experiences this at some point – but for some identities more systematic than others.

Evidence of Stereotype Threat

Steele & Aronson (1995)

“White” Stereotype Threat

People engaged in cross-race interactions experiencing racial anxiety can be as problematic as those who possess high implicit bias.Whites afraid of seeming racist can act awkward and nervous.As with implicit bias, their body language can be avoidant and fail to inspire trust.

Failure to Warn (Cronin et al, 2006)

Unwarranted Praise (Harber, 2012)

Calculus and Chemistry ◦ Best subjects history and

biology/worst is math◦ Tutoring?◦ Time for other activities?◦ How difficult?

Too hard? For White students but not

for Black students (if the peer advisor is worried about seeming racist)

Poorly written essay – what kind of feedback◦ Praise and little criticism to

Black and Latino students.◦ Critiques for White students.◦ Except if teacher feels

supported by principal – then Black and White students treated the same.

◦ Latino students still overly praised.

Consequences of “kindness”

Institutional Interventions•Contextual cues: ensure that the working environment does not have race or gender-based triggers.•Individuate: encourage associates to recognize their unique characteristics.•Affirm important values: when people focus on values outside of themselves, identities are not as salient.

•Create an “in-group” identity: that includes men and women of every race and ethnicity.•Allow for different identity characteristics: Recognize color-blindness doesn’t work. •Convey high expectations and belief in capacity to meet them.•http://www.reducingstereotypethreat.org/reduce.html

Task Motivation

Bias Ratings

In the meantime . . . •Recognize that anxiety can be result of causes other than identity characteristic: if we remind ourselves that tests or work assignments are stressful for reasons other than identity, lessens identity anxiety.•Focus on identity similar role models – either in working environment or from other sources: even reading about people like us who have succeeded can reduce stereotype threat.

•Anxiety can be a benefit to performance: recognizing that being anxious can enhance our performance can actually enhance our performance.•Adopt a “growth mindset”: Understand – truly – that intelligence/capacity can be developed with practice. Falsely believing in “entity theory” – that capacity is fixed - undermines our performance.•http://www.reducingstereotypethreat.org/reduce.html