Dissenting Opinions

Taking The Easy Way Out

Episode Summary

In episode 3 of Deep Dive into Critical Race Theory, Will and Khiara zero in on “implicit bias.” They discuss criticisms of anti-racism trainings, legal definitions of racism, the use of social science, and start to preview health disparities and environmental racism, which they will return to a few episodes later.

Episode Transcription

[Dissenting Opinions theme]

Will: Welcome to Season 2 of Dissenting Opinions, a podcast by the Constitutional Law Institute at the University of Chicago Law School. I'm your host, Will Baude, and you're listening to a special series we're calling Deep Dive, where a guest and I will take a deep dive into a legal topic. This series will be me and Berkeley Law Professor, Khiara Bridges, talking about critical race theory. Without further ado, let's deep dive into critical race theory.

Can we transition to cover more topics while we-- [crosstalk]

Khiara: Mm-hmm, absolutely.

Will: Great. Another phrase I hear about a lot, maybe a little, a little less, actually recently, but I read about a lot is implicit bias, which again, I take it is supposed to be different from bigotry. It's not explicit bias or it's not self-conscious racism, but it's also bad. It's omnipresent, it's something for us to fight. Is this a part of critical race theory, is this another one of the discourses, and what is this, and how does it work?

Khiara: Yeah, thank you for that question. I tend to say, in addition to structural racism, critical race theorists to come up with the term structural racism or the concept of it even, I think that folks-- I think Stokely Carmichael wrote an essay in the 1960s where he talked about structural racism and how that is killing a lot of people of color. It's not the bigots. But what critical race theory did do was take that concept and identify its locations in the law, identify how the law either takes a hands-off approach to structural racism, especially judiciary. 

Will: Yeah.

Khiara: The judiciary is like, “Oh, we're unelected. [chuckles] Go to your elected. The political branches, they are the ones who is supposed to handle these." So, critical race theory is interested in looking at how structural racism is protected by the law, and when and how the law has worked to dismantle structural racism. Same thing with implicit bias. Implicit bias has its origins outside of law schools. They're concepts. 

Will: Right. [crosstalk] psychology. Yeah.

Khiara: I would imagine, it was something like a psychology department, somebody who worked there was the first person to articulate the notion of implicit bias. It seems to be a real thing [laughs] that people have associations and aversions. They're not consciously aware of them. In fact, they disavow them consciously. However, under intense time constraints, act on them, those associations and aversions reveal themselves and then they're real consequences. Experiments have shown that people who score certain ways on the implicit association test, which measures the extensive of your implicit bias, they act in certain ways. They're more likely to shoot an unarmed person of color. They're less likely to shoot an armed white person. I love that experiment that shows that. A range of experiments have shown that implicit biases are that people act on them. It's not just something that you can measure, but people don't actually act on them.

What does that mean? Critical race theory spent a lot of time looking at how the law, the antidiscrimination laws are woefully-- or had made themselves woefully incapable of addressing the very real fact of implicit bias. We can start with the 14th Amendment, and we can start with Washington v. Davis, with the Supreme Court saying, “No, in order for there to be a racial classification in a law where we're going to use strict scrutiny, we need discriminatory intent. Showing a disparate impact is not enough. We need discriminatory intent.” And then further defining it later, what discriminatory intent is and Personnel Administrator v. Finney as saying like, “No, we're really talking about animus really. You did something that in spite of, but because of the adverse consequences that it will have on a group." And so, if the Supreme Court is defining essentially racism or the racism that is a constitutional problem-

Will: Right. Legal racism.

Khiara: Right, legal racism. If you're defining it in a particular way that doesn't match up with what the social sciences are saying, then of course, the law is going to miss a whole lot of the behaviors that work to produce the racial stratification that we think is a problem. Critical race theory spent a lot of time investigating the disjuncture between what social science was saying about implicit bias and what the court was saying about what racism is in both the 14th Amendment as well as Title VII, in the Title VI, and the other antidiscrimination laws. 

But note the tension there as well. Critical race theory also spent a lot of time talking about, "Stop worrying about bigots. Everybody's worrying about bigots, everybody's looking for individual bad actors. We need to start looking at these structural processes. We need to look at the institutions. We need to look at these systems." And so, there is a tension there with some critical race theorists spinning all of their times and their careers investigating implicit bias, which is located in individuals and other critical race theorists being like, “Oh, you're missing the forest for the trees. Look at the systems that individuals are embedded in." That's a tension in critical race theory. I think it's productive. I like tension because it's productive tension, but it's definitely a tension. [chuckles] 

Will: I think all law professors like that. 

Khiara: [laughs] 

Will: It seems like a fork. Okay, we start with the same origin of saying, “Well, the problem is not just the explicit bigots. We're missing something. What are we missing? And then, I guess, it could be both. One fork could say, "Yeah, the problem was too focused on people, and we've got to move up from people to structures." The other is, "No, no, we were right to focus on people. It's just we were looking at the wrong thing. We were looking at conscious expressed views and we need to get behind that." It could be both. But yeah, it seems there is a tension -- [crosstalk] 

Khiara: Yeah. It's probably all, right? It's all of the above. Check the boxes, right?

Will: Right.

Khiara: We need to be on the lookout for bigots, as well as just people who have implicit biases, as well as would be critical of the institutions that are they are in. [chuckles] 

Will: Right. But in a world of tradeoffs or in a world where you're asked how to reform the school system, or the police department, or whatever it is, you do something very different if you're chasing after implicit bias than if you-- [crosstalk] 

Khiara: Exactly. 

Will: Yeah.

Khiara: In the interest of full disclosure, I am definitely one of those who are like, “Oh, we keep talking about implicit bias.” It's exhausting. I'm wondering how much payoff we're getting from talking about it, because I think that implicit bias has colonized our attention. When police departments attempt to do something about racism, when hospitals attempt to do something about racism, when school districts attempt to do something about racism, they bring in the implicit bias trainer, they administer them implicit association tests. Everybody walks away like, “Oh, my God, I have this unconscious association that's negative between people of color and this thing,” and then they go about their business [laughs] like nothing ever happened beyond the implicit bias training.

You said in a world of tradeoffs, I would be much more interested in investigating the processes as opposed to just bringing in the implicit bias trainer. You know what I mean? I think doing the implicit bias training is easy and that's why so many institutions do it and then they can go back to doing what they were doing before. Whereas actually changing some of the decisions that have made institutions either racial exclusionary or produce certain outcomes, those are the harder ones to change, but I think we'll get more bang for our buck if we do that. [chuckles] 

Will: Yeah, so, okay. Now, I'll put on my cynical hat, again. Imagine you run an institution, and you're either for your own reasons or for political pressure, you got to do some anti-racism training. You could find some systemic racism training that's going to come in and tell you what's wrong with the whole system that you're running.

Khiara: [laughs] Right.

Will: You are currently the management system. So, it's probably not-- [laughs] 

Khiara: [laughs] Right. Fire me first, get rid of me. [laughs] 

Will: Right. Replace the hierarchical top-down structure-

Khiara: [laughs]

Will: -with a bottom-up collaborative structure of thinking whatever, whoever-- [crosstalk] 

Khiara: Right. 

Will: Eliminate my institution, tell me to disband my school district, to unite with the neighboring school district. Okay.

Khiara: Right. 

Will: Or I could get the same political cover or whatever it is I'm accomplishing, a feeling of righteousness by bringing in somebody is going to tell me that a bunch of the people who work for me are actually worse than they think. 

Khiara: [laughs] 

Will: [laughs] They are the problem.

Khiara: Right.

Will: It's not surprising that there'd be much more demand of management who are not predisposed to blame management. I'm not saying the cynical model's the way the world works exactly, but sometimes-- [crosstalk] 

Khiara: Yeah. No, but I do think it does a lot of the explaining. 

Will: Right.

Khiara: I think it explains some portion of why we see so many implicit bias trainings and not more critical workshops on how the institution might be implicated in the system, and what the institution might do in light of that implication. It's funny that the example you gave, it reminded me of a critique that I think critical race theorists made against themselves. [laughs]

Will: Okay.

Khiara: We are going to dig everybody. Nobody is off limits. But it was like, well perhaps our-- Critical race theorists, 99-- well, at least anyway, a lot of them are law professors. You know, well, being a law professor is a pretty good job. We get summers off, we get pretty good health benefits, and so on, and so for. And so, the question is, are law professors in a good position to critique the law? We're benefiting from the way things are. We have jobs, we have tenure. We have so many privileges that come from the status quo, the way things are organized. Are we in a good position to critique the way things are organized? So, it relates to the example that you give, because the manager or the superintendent, they are probably not best positioned to bring in some sort of training or propose some sort of intervention that will destabilize a system that is working for them right now.

Will: Yeah. The law professor critique, it seems right. It is right that law professors are not well positioned to really speak truth to power. It's the funny thing with the law, of course, the law listens to claims against the justice of the law. But at the same time, you see this too, I'm sure, with your students who come to law school with radical visions of what law school is going to help them accomplish, when they come out of law school ready to file complaints that comply with the federal civil procedure.

Khiara: [laughs] Exactly. And they're going to get them in by 5 PM, because that's when they're due. No, it's funny, not funny. I was so dissatisfied with law school when I was in law school. I was like, “Why are we learning torts? What is a tort?”


Will: Yeah.

Khiara: “Why are we learning property?” I was so critical of the entire 1L curriculum. And now that I'm in a law school, I'm like, “Well, I understand it.” [chuckles] I understand why we start off with civil procedure and I understand-- Yeah, I think that there's a certain quieting of more rebellious energies by just the fact that we are in certain positions. I think that is actually a great way to acknowledge that critique-- We were talking about the relationship between critical race theory and activism, and I think that, especially now, critical race theorists, self-identified, are very attuned to what's happening in the streets, like what's happening outside of law schools, because that's where the most creative energy might be, like, “I'm not going to come up with some brilliant. I might, but it's unlikely for me to come up with some brilliant idea while sitting in my very comfortable office at Berkeley." If necessity is the mother of invention, the most creativity is outside of Berkeley, outside of the entire city. It's in Oakland. It's in the most dispossessed parts of the nation. And so, critical race theorists are very attuned to what's happening out there in terms of activism and protest.

I will also say that explains why you're starting to see law reviews published articles about abolition, police and prison abolition. It wasn't because some law professor was like, "Ooh, you know what's cute? If I propose abolishing prisons." Instead, some law professor was paying attention to what is happening out there and hearing the community say, "There's got to be another way to deal with our social problems, to deal with people who hurt other people. Imprisoning them can't be the answer." And now, law professors are starting to figure out what that means in terms of law. 

Will: Yeah. This ties back to something-- There's this whole world of institutions that feel there's some problem with what they're doing and then their solution is to try to find somebody to do a training and that's [unintelligible [00:15:23].

Khiara: [laughs] 

Will: Maybe, training is a really weird framework, maybe a wrong framework for even just thinking about this. I don't know. There are things where you have a skill or something, you need to learn the skills, you get trained in the skill, I get that. But this doesn't seem it's like that. It doesn't seem like the problems of confronting systemic racism are a thing could be trained in an hour.

Khiara: Right. Yeah, agreed. Absolutely. Yeah, and also, if it's a training-- Christopher Ruffo popped up in my head, [laughs] because [crosstalk]

Will: He’s still here. 

Khiara: He's still everywhere. It sounds like we're teaching you something, we're going to train you in something, and then you're going to go out, and use those skills to do what we've trained you to do.

Will: Right. Like a soldier. 

Khiara: Ah, right. Like a properly indoctrinated person. I don't think that's-- it's certainly not what critical race theory is. I would say that maybe we can brainstorm better words like workshops, and talks, and lenses. We're going to provide you with a lens. I don't know. 

Will: Yeah.

Khiara: But I would hope that when-- I do give talks outside of academic spaces, hospitals, and especially OB-GYN departments, because I do reproductive rights as well. I would hope that people walk away from my talks that were like, “Oh, no, I have some skills that I'm going to apply later today.” But rather, I hope they just were, “I didn't think of it that way. That's amazing.”

Will: Yeah.

Khiara: And hopefully, some people were like, “Well, that's garbage, because- [crosstalk]

Will: [laughs] 

Khiara: "--And I reject what she just said.” Others are like, “That resonates with me and I'm going to see how I can think more about it.” [laughs] 

Will: Yeah, well, that sounds a lot better. I guess, on the flip side, now I'm trying to be sympathetic, at least implicit bias seems it's actionable or tractable. How am I supposed to deal with this? Ah, we've got a flaw that many of us have, but we can like-- I don't know, it's almost like a very Christian way to think about it. All right, we're all sinners. Many of us have this inner implicit bias. But now, by working harder to be righteous, we can fight against it somehow. 

Khiara: Yeah, we can do something. Again, I understand though the attention that has been paid to implicit bias, because implicit bias is like we can do something today. It doesn't involve uniting the school districts, it doesn't involve raising or changing the way that we fund public school. It's just like, today, we can bring this person in, we can do this implicit association test, people will know that they have these unconscious aversions and associations, and then maybe they'll act on it. Definitely, sympathetic to it. It's actionable, but of course, what if that's not all, what if that's not the entirety of the problem, then we would just pat ourselves on the back like, “Yeah, we did something,” and then we would go home and sleep well that night.

I was mentioning that I give talks in hospitals and doctors especially, just like you don't become a cop, most people don't become a cop, because they want to brutalize people, most people don't become doctors, because they're like, “I want to give inferior care to people of color while giving superior care to white people.” They want to make sure when they have a clinical encounter, that whatever biases they have that does not impact the quality of care that they give. So, implicit bias makes you feel better, but it is also something you can do, because when the heavy lifting, when it comes to people of color having poor health outcomes, when that's environmental racism and residential segregation, and two-tiered healthcare system, when that's what's causing the problem, then you start to feel impotent, you can feel you don't have really any-- There's nothing you can really do about it. So, it’s hugely sympathetic, but also want to encourage us to do the harder interventions as opposed to the easier ones.

Will: Yeah. I want to do a longer thing later with you on the healthcare-- how to think about this in the healthcare context, but just as a taste, what is the non-implicit bias way? What's the Khiara Bridges way to think about racism and healthcare?

Khiara: [laughs] Yeah, no. Oh, my God, I think that the problem is before healthcare, I think it'd be great if we had an affirmative right to healthcare, but I think more important is that we have an affirmative right to health. If we started with health before healthcare, then we wouldn't need so much healthcare. We are making people sick. I live in Oakland. I live in a very gentrified part of Oakland, but a little ways down the highway, there's a part of Oakland, where a whole bunch of people of color live and it's just like highways, and 18 wheelers, and industrial uses of the land and landfills. That's why people have asthma, that's why COVID hit those communities particularly hard. 

So, yes, when they get sick, they need to be able to go to the doctor and get some good healthcare. But before they get sick, what can we do to make sure that people aren't compromised in the first instance? That's the Khiara Bridges approach. [laughs] 

Will: [laughs] Yeah, it's a lot harder [crosstalk] bias training.

Khiara: Yeah. Training more doctors, building more hospitals, perhaps get a little Medicaid involved, we can do that. It's hard. It's hard to do that, but that is something that, I don't know, creates more jobs? I don't know, but I also think that it is so possible for us to not create communities inside of toxic spaces. I think that's also possible.

Will: Yeah, there's something just about procedural familiarity. Even if building more hospitals, hire more doctors is super expensive than hard, it's like, “I know where to go to do that, we've done that before, I know what we'd have to do to do it.” And in the same way that you hire a lawyer, what are they going to do? They want to file a federal lawsuit. 

Khiara: [laughs] 

Will: They are like, “Look, some lawsuits are so easy, some lawsuits are hard, but I understand. I can do that.” 

Khiara: Right. Yeah.

Will: You told me that it's not something you can solve with a lawsuit, then you need a different, more creative lawyer or somebody's who's not a lawyer, and it just doesn't have the forms that we're used to handle it. 

Khiara: Yeah, absolutely. But notice well that, that is not an evitable that we can address some of these problems through a lawsuit and that's critical race theory. Critical race theory tracks how it came to be that these problems became something that the law is like, “We can't do anything, especially in the courts. The courts can't do anything about that.” And so, critical race theory being like this series of questions. It's like, "How was it that when we say West Oakland is polluted?", we know that the answer is not like, “Oh, if it's polluted, then you sue these actors," because the law has been defanged. What would the country look like? What would West Oakland look like? What laws have to be changed if lawsuits became a way of addressing environmental injustice? Yeah, series of questions. Would it be bad or would it be worse, right?

Will: [laughs] Sure, right. Yeah. What's the next step in the game or what's the next move?


Will: Thanks, Khiara. For updates on future episodes, follow us on Twitter @uchicagoconlaw. Make sure to subscribe, rate, and comment wherever you get your podcasts. This Deep Dive into Critical Race Theory was recorded in one big session. So, if the conversation jumps quickly, that's why. Stay tuned for new episodes out every Monday and Thursday.


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