In 2003, the U.S. Supreme Court heard Grutter v. Bollinger, a case brought by a law school applicant who was denied admission at the University of Michigan. The student, who was Caucasian, believed she had been wrongfully denied admission because of the law school’s admissions criteria, a composite of many academic and achievement-oriented variables. In addition, the school had a goal to achieve diversity within the student population. While the school did not set quotas for minority students, it sought to enroll what it termed a “critical mass” of under-represented or minority students. The law school claimed that to eradicate race as an admissions factor would cause the school to lose its diversity because many fewer minorities would be admitted. Barbara Grutter, the plaintiff in this case, believed that her 14th Amendment rights had been violated because the law school’s use of racial preferences in student admissions violated the Equal Protection Clause.
In response to this case, many organizations drafted amicus curiae briefs responding to both sides of the issue, including the American Psychological Association (APA). The APA explained that, unfortunately, prejudice and discrimination still persist and related institutional inequalities that linger require purposeful corrective action. The brief continued that minorities are under-represented in many fields where there is not a focus on increasing and maintaining diversity.
In its argument, the APA discussed how modern-day bias has shifted to a more implicit level – attitudes that are held outside of conscious awareness, affecting the way one perceives others and subsequently makes decisions about or behaves toward others. Categorizing the people, things and events around us is automatic. For example, once we learn how to read, we cannot unlearn it.
We can do it automatically without effort. In fact, we even perceive the meaning of words presented subliminally, far outside our conscious awareness. Implicit biases can affect an individual’s behaviors and decisions to different degrees depending on the strength of the bias, the person’s own experiences, and the stature of his or her own social group, among other mediating factors.
Non-conscious biases can impact behavior and judgments in meaningful ways because non-conscious processes typically have an automatic and unavoidable impact on perception and action. The APA’s amicus brief to the Supreme Court cited a 2001 peer-reviewed research article by Dr. Allen McConnell and Dr. Jill Leibold that found people’s explicit attitudes (i.e., those that are consciously accessible and can be explicitly reported) toward African Americans and Caucasian Americans were not correlated to implicit attitudes. Importantly, participants’ implicit attitudes toward both racial groups were tested, and their non-verbal behaviors toward a Black and a White experimenter were recorded. Those participants with the strongest implicit bias against African Americans revealed more negative non-verbal behaviors toward the Black experimenter than toward the White one. This indicated that while their actions may not have been deliberate, their implicit attitudes impacted how they treated a member of a social group about whom they held negative attitudes.
The Supreme Court upheld the law school’s admissions policies so that it could gain a “critical mass” of minority students and meet its diversity goals. This case acknowledged that racial bias is still an issue in higher education and helped pave the way for the legal community to learn more about, and understand the effects of, implicit bias in other arenas, such as the courtroom.
Litigation Insights keeps abreast of new research and findings related to implicit bias and its effects on jurors’ decision-making and attorneys’ impressions of jurors during the jury deselection process.
By: Jill M. Leibold, Ph.D., Director – Jury Research