Thank you to all the participants in the conference - it was a great success! Transcripts of most panels will be available soon.

About the Conference

The Context

A. The Need

Repairing the frayed and sometimes broken relationships between racial and ethnic groups is an imperative for the 21st Century.  The history of racism in American law and culture has left undeniable scars on racial communities and on society’s moral fabric.  Healing deep wounds is integral to healthy present-day racial interactions. [2]  

Race and racism, however, are topics often difficult to discuss.  How do we develop the concepts and language we need to deal with historical and ongoing discrimination and healing “in ways that build, rather than destroy, relationships?” [3]  

One component of racial healing is justice under law.  Justice is difficult to achieve when the law fails to reflect the actual experiences and perceptions of communities who have seen and felt discrimination. [4]   The constricted “intent doctrine” that permeates antidiscrimination law, for example, deprives many of redress for discrimination.  The doctrine requires plaintiffs to prove the near-impossible: a decisionmaker’s specific intent to discriminate.  If a plaintiff cannot overcome this hurdle, the law will not recognize the discrimination he or she has experienced, even though some form of discrimination has come into play.   For more information on the “intent” requirement, see Washington v. Davis.

The “intent” standard is ineffective to remedy continuing racial inequality and disparity because it fails to reflect how a large part of discrimination actually occurs.  The doctrine views discrimination as an isolated, individual phenomenon resulting from the specific and identifiable “intent” or bias of a sole actor or set of actors.  But what about decisionmaker actions that do not involve “intent” to discriminate, but involve subconscious bias?  In such cases, would the intent requirement undermine a viable discrimination claim? 

B. A New Way to Redefine How Discrimination Occurs

Substantial empirical and theoretical work in cognitive social psychology and critical sociology offers new progressive formulations for antidiscrimination law.  This impressive body of research has confirmed that much of society’s racism is not a series of unconnected, intentional acts, but is a collective, historically-influenced, institutionalized and and often subconscious process.   According to these studies, all of us have cognitive biases that influence how we perceive and make decisions about other people.[5]  In other words, the behavior of human beings is often guided by racial and other stereotypes of which we are completely unaware. [6]  

The human mind relies on categorization as a basic tool for interpreting perceptions, encoding those perceptions into memory, and making both conscious and subconscious decisions based on those perceptions and memories.  “[P]eople continually use cognitive shortcuts—exaggerations, oversimplifications, generalizations—to allow them to prioritize and, in some gross way, make sense of the overload of incoming information. Racial stereotyping is one method that people employ almost automatically in order to understand their surroundings.” [7]    To take an Implicit Association Test, which measures unconscious bias, go to https://implicit.harvard.edu/implicit/demo/.

This extensive empirical and theoretical work shows that the current law ignores much of what we understand about how the human mind works.  The “intentionalist” view of discrimination and the law linked to it thus misunderstand the actual cognitive dynamics of discrimination.   Many of these powerful studies and theories, however, are not being fully utilized on the front lines of the political debate or in courtrooms by civil rights advocates.  

C. Implications for Racial Healing and Justice Under Law

The sociological studies on subconscious bias can be used in the public discourse to talk about and address racial healing.  In general, on a conscious level, people want to be free of racism, but our “cognitive shortcuts often will override even volitional good will.” [8]   Most people can and do act in a reasonably nonprejudiced way when they are thinking that they might do so, but demonstrate remarkably deep-seated stereotyping in the thousands of other circumstances that happen every day. [9]

Talking about race in terms of healing rather than blame provides an opportunity to talk about race and racism in ways that build, rather than destroy, relationships. [10]   Part of this healing process involves educating each other about the ways in which subconscious bias affects how all of us make judgments and decisions.  Indeed, the research “shows that unconscious bias may be reversed for subjects holding conscious egalitarian views once the unconscious bias is brought to the subject's attention.” [11]  

These studies also provide the tools to begin to redefine antidiscrimination law.  The research can be used to craft practical and incremental steps to introduce a new understanding of discrimination into the law using existing case language, but in a fashion that fits closely with psychological and sociological work on how discrimination actually operates.  A long-term incremental transformation of “intent” will entail blending innovative legal strategies and argument, scholarship, media, and public education efforts.

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