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A law professor worries that racial justice has been seduced by science

Race on the Brain: What Implicit Bias Gets Wrong About the Struggle for Racial Justice

Jonathan Kahn
Columbia University Press
2017
303 pp.
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Social cognitions are mental associations between a social group (e.g., Asian American) and some characteristic. They can be overall impressions or  associations with a specific quality (e.g., “technocratic”). Some social cognitions are implicit; we can’t tell that we have them simply by asking ourselves. Instead, they must be measured through some indirect instrument. Over the past two decades, science has demonstrated that implicit social cognitions exist, are pervasive, are predictably biased, and alter judgments that produce discriminatory decisions (1).

The findings are humbling. Although we seek to be impartial, implicit biases nudge our behavior in ways contrary to our values. Various psychological and legal scholars known as “behavioral realists” have argued that the law should account for these discoveries. After all, when we get more accurate descriptions of behavior—including how we imperfectly judge others—shouldn’t our systems update accordingly?

Not surprisingly, this research threatens many on the right because it provides an evidence-based challenge to the myth of color blindness. What is surprising is the anxiety this has provoked on the left, as exemplified by Jonathan Kahn’s Race on the Brain.

Kahn, a legal scholar, makes two general criticisms. First, he rejects privileging science in the struggle for racial justice. For him, science is too reductionist and omits intricacies of power, history, and culture. Accordingly, he believes that behavioral realists, seduced by science, mislocate racism inside neurons instead of larger social structures. They then recommend an individual-focused, technocratic solution that “not only elevates scientific authority over legal authority but also elevates unaccountable experts over officers and citizen[s] of a democratic polity.”

Second, Kahn complains that behavioral realists embrace the politically conservative frames embedded in current constitutional doctrine: merit over distributive justice; individual rights over group rights; a showing of conscious, intentional discrimination over evidence of disparate impact. By accepting these conservative values—even for argument’s sake—he contends that behavioral realists abandon the fight for better law and higher moral ground.

Kahn’s thoughtful criticisms are important to keep in mind. He is surely right to caution against scientific imperialism. Suppose some physicists claimed that fluid dynamics could solve all climate change problems. Not only would chemists, biologists, and environmental scientists rightly scoff at such disciplinary arrogance, so would engineers, transportation experts, urban planners, geographers, economists, tax scholars, sociologists, and historians. The same reaction is appropriate whenever implicit bias is offered as a panacea for all problems racial. Kahn also rightly warns of opportunity costs—that attention to implicit bias and working within existing legal constraints might drain “attention and resources away from other approaches to framing and addressing racism.”

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Situating racism in the brain, instead of placing it in larger social contexts, is a mistake, argues Kahn.

Unfortunately, in raising these concerns, Kahn erects numerous strawpersons. For instance, behavioral realists aren’t as rigid, reductionist, and algorithmic as Kahn claims. The field’s two leading scientists have publicly characterized implicit bias as a cultural filter or the “thumbprint of the culture on our minds,” the latter quotation provided by Kahn himself (emphasis added).

Indeed, the first major legal analysis of implicit bias focused on mass media policy (2). Specifying how mass media culture manifests cognitively is not to ignore culture but to document carefully its invisible reach.

Kahn also engages in guilt by association by intertwining behavioral realism with Washington v. Davis, the Supreme Court case that held that self-conscious intent to harm minorities and not mere disparate impact is necessary to establish an equal protection violation. He also argues that implicit bias is used to further the “milquetoast goal of diversity” favored by diversity management consultants.

What’s odd is that behavioral realists have persistently criticized Washington v. Davis for insisting on self-conscious intent, which is behaviorally unrealistic. As for diversity discourses used in the private sector, implicit bias emphasizes discrimination taking place right now in firms; it does not try to persuade them of any self-interested “business case” for diversity.

More substantively, Kahn’s fundamental error is to set up a contest between science and nonscience in the pursuit of racial justice. By doing so, he obscures that multiple bases of knowledge, and multiple strategies, are necessary to effect social change.

Greater clarity comes from seeing the debate as being between facts and values. Trying to change society’s values, to care more deeply about racial disparities, will undoubtedly move some people. But those who believe that disparities are caused by differences in merit and not by discrimination will not be persuaded. Thus, the complementary strategy would be to update society’s understanding of facts—to show that we are not so impartial, that discrimination is occurring right now (not in some ancient past) and in our own minds (not only in “bad apples” elsewhere).

Between facts and values, Kahn bets on the venerable strategy of changing values. He exclaims that science cannot lead the way. “Rather, its proponents must content themselves with a humbler role for their technology as a helpmeet to the broader, democratically based interpretive enterprise of reshaping the common sense of racism—of making sure that people come to fully understand that indeed black lives do matter.” His desire is admirable and heroic.

By contrast, behavioral realists bet more on the facts. They simply ask society to account for the emerging factual consensus that we are not yet who we claim or aspire to be. Of course, inconvenient truths never guarantee reform. But for behavioral realists, mobilizing facts is an important antiracist strategy, which is complementary to—not mutually exclusive of—a much older conversation about values. This is not to be seduced by science; it is merely to be pragmatic and unafraid of it.

Note: The author acknowledges that his own work is referenced extensively throughout the book. He has nonetheless strived to provide a fair and balanced review.

References

  1. M. R. Banaji, A. G. Greenwald, Blindspot: Hidden Biases of Good People (Delacorte Press, New York, 2013)

  2. J. Kang, Harvard Law Rev. 118, 1489 (2005)

About the author

The reviewer is at the UCLA School of Law, University of California, Los Angeles, Los Angeles, CA 90095, USA.

  • Anne Fausto Sterling

    The author of this review is heavily critiqued in the book. Surely Science could have found an impartial reviewer rather than staging a battlefield/

  • Jon Marks

    This review represents an egregious conflict of interests and sends a terrible message about the irrelevance of ethical behavior in science. For shame!