Sunday, December 06, 2020

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Excerpted From: Charles R. Lawrence III, Implicit Bias in the Age of Trump: Biased: Uncovering the Hidden Prejudice That Shapes What We See, Think, and Do. By Jennifer L. Eberhardt. New York, N.y.: Viking. 2019. Pp. 340. $28.00, 133 Harvard Law Review 2304 (May, 2020) (Book Review) (224 Footnotes) (Full Document)

 

[. . .]

CharlesRLawrenceProfessor Jennifer Eberhardt opens her book, Biased, with a story. She is walking into an auditorium filled with Oakland police officers. As the chair of a federal oversight team charged with investigating extensive civil rights violations by members of the Oakland Police Department, she has come to share the team's findings with the department's officers. This is a much smaller audience than the one that gathered to hear President Trump, and she knows that they have not come to cheer her. She knows she is facing a hostile crowd, and she writes: “I wanted to help the officers to understand the insidious ways in which implicit bias could act on human decision making”.

Eberhardt's purpose here is very different from the President's. Rather than seeking to arouse and exploit her audience's racism, she seeks to help them acknowledge their racism and to understand it. She wants to show them how the brain works-- the way that it works outside of our consciousness--to cause racist thoughts and behavior “despite ... noble intentions and deliberate efforts”. But her usual academic consultant's repertoire is getting nowhere with this crowd.

Instead, she decides to tell a personal story. She and her five-year-old son are on an airplane, and her son sees a Black man and remarks, “Hey, that guy looks like Daddy”. But the guy doesn't look like Daddy at all, no resemblance in height, skin color, or facial features. The man wore dreadlocks, and Eberhardt's son's father, her husband, was bald. Then, her son blurts out, “I hope that man doesn't rob the plane”. “Why would you say that?” she asks him. “You know Daddy wouldn't rob a plane”. And finally her son replies, “I don't know why I said that. I don't know why I was thinking that”.

Eberhardt continues, sharing her thoughts as she completes her story:

I took a deep breath, and when I looked back out at the crowd in the auditorium, I saw that the expressions had changed. We were parents, unable to protect our children from a world that is often bewildering and frightening, a world that influences them so profoundly, so insidiously, and so unconsciously that they--and we--don't know why we think the way we do.

This scene feels familiar to me as well, although this time the familiarity I experience does not come from the historical echoes of threat, violence, and disparagement of my personhood that the Trump rally evoked. The familiarity I feel here comes directly from the etymological root of the word “familiar.” Jennifer Eberhardt feels like family to me. I feel as if I am standing in her shoes as she looks out at this audience. I have lived the story she tells here. I have been the Black professor from the prestigious academic institution invited to speak about my field of professional and scholarly expertise and also to speak about race and racism. Because I am Black in a world that is not colorblind, I know that I also inevitably speak about myself. Jennifer Eberhardt knows this too. She knows that this is especially so when we are invited to talk about race and racism. I know from the family stories she tells in this book that she was raised by people, like my own parents and grandparents, who reminded her always, with explicit lessons and by the example of their own lives, that she “represented the race.” She needed to be nicer, be smarter, work harder, be more well-spoken than her white classmates and colleagues, because that's what it took to succeed while Black, while America's founding, and still vital, narrative of white supremacy told a story that imagined her as the opposite of all of those virtues. This was not just a story about her. Rather, it was a story about us. Each time she stands before an audience, she represents all of us, and she must tell a story that speaks back to and challenges white supremacy's defamatory story of our inferiority.

Eberhardt does not include these thoughts, or the feelings that accompany them, when she tells the story of her presentation to the Oakland police. Surely there is some resistance to the messenger, as in: “Who is this Black woman who thinks she can come and tell us we are racists?” Eberhardt will soon tell us that her research shows these officers have been conditioned by racial images to perceive the Black man on the street as a dangerous threat. She must also know that a different but related set of images has conditioned them to think of a Black woman as anything but a highly trained and authoritative scientist, much less one who is objective and unbiased on the subject of race. Maybe she was not thinking consciously of how racialized and gendered implicit biases were evident in this scene, of how it might have influenced the way she told her story or whether her audience heard her. As I read the story, I thought: Is there something to be learned from asking why those of us whom white supremacy's narrative deprives of personal authority as full human beings choose to tell stories that, like those from science and the law, have an authority of their own?

I begin with these two scenes, of Trump and Eberhardt and their audiences, because each is a story, a narrative. Each scene provides a text that we may interpret, as evidence of who we are, of “our world,” our nomos. We can also read each scene as an adversarial, creative text. The story is told to create meaning and community, to shape our nomos, to make a moral argument for whom we should be or an aspirational argument for whom we might be. Professor Robert Cover instructs us that we cannot understand law apart from the stories we tell one another about who we are and who we should or might be. Ultimately our stories make the law.

When the Harvard Law Review asked me to write a review of a book whose title and subject is uncovering hidden prejudice, I was puzzled. Why choose a book about hidden bias when the active threat is self-proclaimed racists marching in the streets? It seemed a strange time to worry about hidden racism when the President of the country was holding rallies and building walls to proclaim himself the protector of a white nation. As I contemplated what I might write, if I accepted this invitation, I realized that I could regard the puzzlement I was experiencing--“You must be kidding. You want me to talk about hidden bias when they're burning a cross on my lawn?”--as my theme. I admit this was my first impulse. Alternatively, I could treat my question as a real question, posed without irony, as a serious challenge.

This Review chooses the latter of those two roads, although the reader will discover I am not completely cured of my initial, “are you kidding?” impulse. These two texts-- Eberhardt's book on the lived experience and science of implicit bias, and the ascendancy of overt racism--appear contemporaneously. I have argued often before that the interpretation of cultural texts is essential to making law and justice. This Review takes seriously the questions of why these texts appear at the same time, how they relate to one another, and what work they do to both manifest and shape our nomos. Of course, as Cover reminds us, there is a third storyteller here, a third text--the law. And, I will add a fourth text that I will call the abolitionist or movement story. I give this name to what Professor Mari Matsuda has called stories from the bottom. Movement stories speak directly to our collective values. They ask us to confront our country's racism. They ask a descriptive and interpretive question: “Who are we?” And they ask moral questions: “Who should we be? How should we constitute ourselves?”

Eberhardt has written an insightful, thoughtful, and eminently readable book about racism and implicit bias. Eberhardt is a scientist, scholar, sought-after consultant, and, as she shows in this book, a master science teacher. With clear explanation, real-world examples, and complex context, the book introduces the vital and pioneering research she and her colleagues have done to explore the architecture and workings of the brain and the psychological mechanisms that cause racial bias, distort our perceptions, shape our behavior, and influence the decisions we make each day. But Eberhardt clearly intends that this book do more than serve as a primer for the uninitiated. She is drawn to this research by her desire to change the culture of racism she has experienced in her own life as a Black woman. She writes to engage in the project of racial justice, and she invites us to join her in that enterprise. To that end she surrounds her science lessons with stories from her life, stories in which she hopes we will see ourselves and recognize a shared humanity with her and enlist in her justice project.

Early in the book, she tells us how she believes her work as a scientist is essential to her justice project:

Confronting implicit bias requires us to look in the mirror. To understand the influence of implicit racial bias requires us to stare into our own eyes ... to face how readily stereotypes and unconscious associations can shape our reality. By acknowledging the distorting lens of fear and bias, we move one step closer to clearly seeing each other. And we move one step closer to clearly seeing the social harms--the devastation--that bias can leave in its wake.

This Review takes up Eberhardt's call for us to “look in the mirror.” Rather than ask the narrow question of whether the book helps us better understand how our brains work to hide our biases from view, I treat the book, and the larger narrative of science of which it is a part, as social text. I ask what stories are told in this book, and I ask how those stories, when read or heard in conversation with other stories, shape our collective beliefs about what is right and wrong, and ultimately our laws.

Part I of this Review introduces Biased. I ask why Eberhardt tells her story, what theory of social change informs that story, and why she believes this story will make a difference. The answers to those questions comprise what I call the “Science Story.” Part I also introduces the legal literature and the work done by legal scholars, lawyers, and a small group of judges to apply insights from the science of implicit bias to the law. I argue that the legal reform project that these lawyers have taken on adopts the same theory, vision, and approach to social change as does Eberhardt's book, so I include this work in my discussion of the science story.

Part II describes the “Law's Story.” I consider a series of cases from Plessy v. Ferguson to Washington v. Davis to demonstrate that Supreme Court jurisprudence tells a story that denies our collective embrace of racism and white supremacy. This story of denial plays a central role in our failure to achieve the purpose of the Fourteenth Amendment and to heal the sickness of a country and Constitution established and built on plunder and enslavement and on the ideology that justified both. This Part reprises an argument I have made before: that the Court should look to the cultural meaning of legal and social texts to recognize and redress the continuing presence of racism in our democracy. The Court's opinions do not turn on the failure of legal advocates to support their legal claims with scientific evidence. Rather, the Court makes a conscious choice to deny the clear presence of racism. A central premise in this story of denial is the law's claim that racism causes no injury where there is no proof of individual fault and causation. This makes inevitable the story's concluding chapter, in which we learn that we have no collective responsibility for the injury racism does and that societal discrimination is something our Constitution will not see.

Part III introduces the “Abolitionist Story.” I use stories from literature, popular culture, and social movements. I argue that these stories, in contrast to the stories told by the law and science, confront us with the truth of our racism. They speak to all of us rather than identifying blameworthy perpetrators so that the rest of us may avoid culpability for the continued existence of racism's ideology, institutions, and structures. Movement stories demand that we take responsibility for our nomos. They speak directly to our constitutive and constitutional values, challenging us to commit to the values of antiracism and human liberty and to the affirmative disestablishment of our pre-Reconstruction constitutional premises of slavery and white supremacy. I argue that abolitionist stories are essential to the justice project, to healing the injury racism has inflicted upon my Black and brown sisters and brothers, upon my white sisters and brothers who share our history, and upon our democracy. These are the only stories that will save us.

[. . .]

I close this Review where I began, at President Trump's rally watching his ecstatic ritual of call-and-response with the crowd: “SEND HER BACK! SEND HER BACK!” What I see in this cultural text is a country made sick by the disease of racism. What I hear in the crowd's response to President Trump's call to make America great again by sending a Black woman back to the uncivilized place and people she came from is that American freedom requires the unfreedom of Black people. Their call for the expulsion of a Black woman from the country is not primarily about punishing her, or even punishing all Black people or all immigrants. Rather, they require her expulsion to make them more American, more human, more free. Our country's establishment and Constitution committed the nation to slavery as its economic means of freedom from British rule. American freedom, meaning white freedom, relied on the unfreedom of Blacks. This meaning of American freedom is the legacy, the material, and the psychological residue of a history that shaped this country's character and identity. This race-baiting rally is evidence of a country's illness, of a mass psychosis that causes people to believe that their freedom requires dehumanization of others, that makes them vulnerable to President Trump's specious promise that their personhood and prosperity will come from locking children in cages and building walls to keep brown people out.

When I first wrote of unconscious racism and called for the law to think of racism as both a disease and a crime, I was referring to this mass psychosis, to a disease that infects and lives within the nation. This is not a disease that is understood by examining the way that each of our brains functions to sort data into categories that make sense. It is an illness that arises out of the injury and trauma of the Middle Passage, the slave plantation, the Black Codes, lynching, and segregation. It is a malignancy expressed in the genocide of indigenous Americans, the incarceration of Japanese Americans, in President Trump's Muslim ban and border wall. Collective trauma manifests intergenerationally when human beings do horrible things to one another. America's racism is an illness of the mind and spirit that afflicts all who have been party to these horrors and trauma, although the persons whom the law would call perpetrator and victim are injured in distinct and different ways. When the horror is a horror of massive proportions participated in and witnessed by an entire nation, the illness is collective.

What drew me to Freud's theory of the unconscious when I first considered law's role in the propagation of the disease of racism was Freud's insight that one cannot heal traumatic psychological injury that is hidden by repression and denial until one uncovers the origins in trauma, until one admits the injury has happened. This is the lesson that guided the work of the Truth and Reconciliation Commission in South Africa and all reparations movements. We must know and confront our collective history because that history shapes our present circumstances. Our history shapes the material and structural racism of separate and unequal schools, of segregated ghettos, of employment discrimination, of mass incarceration, police killings, border walls, and brown children held in cages. Our history also shapes our continued infection with the ideology of white supremacy. It shapes the Trump crowd's belief that their freedom requires the nonfreedom of nonwhite Americans. This is the snake oil that President Trump sells.

The law tells a story that erases this history, that denies its legacy, that hides the trauma of the horrors we have done and still do to our fellow human beings. The law, like Baldwin's mirror, reflects only the mask that hides us from judgment, declares our innocence, and tells us that our history of horrors lives no longer. The behavioralists have done well to uncover the mechanics of how the brain processes the truths of our culture's racism. It is the content of those racist truths that causes the injury, not the miscalculations of our brains. When we hear and know the truth of the abolition story, we will know that our freedom does not require the nonfreedom of another. When we know that none will heal until all are healed, and that there is no such thing as “too much justice,” we will heal our nation and make this wounded world whole.


Professor of Law Emeritus, William S. Richardson School of Law; Centennial Professor Emeritus, University of Hawai'i at Mnoa. B.A., Haverford College, 1965; J.D., Yale Law School, 1969.


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