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| Jason Wu |
In fact, a new report commissioned by the New York state courts found pervasive and deeply entrenched racism throughout the state court system. The report focuses on incidents of explicit and implicit racial bias; for example, one white court officer reportedly posted an illustration on social media of former President Barack Obama with a noose, and Black attorneys have been mistaken for criminal defendants in courtrooms.[1]
While the New York report's findings are not necessarily surprising, they are still significant nonetheless. By officially documenting racial bias in the courts, we have an opportunity to confront the truth many of us, especially people of color, already know and have been saying: Racism persists.
In recent years, the research on implicit bias has become mainstream. Many courts have begun offering implicit bias trainings to judges and court staff. Some jurisdictions, like New York, even require attorneys to take continuing legal education courses on diversity, inclusion and elimination of bias to maintain bar admission.[2]
The courts should take seriously the report's recommendations to address racial bias through anti-bias trainings and fleshed out discrimination complaint protocols, but we must all be clear that such efforts only scratch the surface of systemic racism in the law and in our society.
Combating racism and bias should not end at trainings. Learning about racism must be more than an intellectual exercise. It requires action. And those actions must extend beyond ending interpersonal bias, offensive words or racist attitudes of individuals. Racism is systemic and it operates across institutions, like the courts and criminal legal system. It is embedded in our laws and in our culture.
The New York report gestures to some of the institutional dimensions of racism in the courts, but ultimately it does not go much deeper. Specifically, the report acknowledges how underresourced and overburdened the courts are, "especially in the housing, family, civil and criminal courts in New York City — whose litigants are disproportionately people of color." The report uses words like "dehumanizing" and "second-class system of justice" to describe the experience for litigants of color in court, leaving racial justice attorneys like myself wanting more.
To be fair, the report acknowledges its analysis of racial bias was limited in scope. The report was commissioned by New York State Chief Judge Janet DiFiore, who wanted this particular report to focus "on operational issues that lie within the power of the court system to implement administratively and unilaterally." As a result, the report did not make or evaluate recommendations that would "require legislative or constitutional change."
As lawyers, we know that sometimes what is left out of a story, is just as important as what was left in. The report's caveats regarding its scope and recommendations should not be glossed over. The body of legal scholarship known as critical race theory is particularly instructive here. Racism operates in the court system because of the pervasive and systemic nature of racism in our society at large — the two are mutually constitutive.
Law professor Jerry Kang at UCLA School of Law and founding faculty member of the school's critical race studies program published groundbreaking research on implicit bias and the law.
For example, his work titled "Are Ideal Litigators White? Measuring the Myth of Colorblindness" demonstrates how explicit and implicit bias impacts Asian American litigators.[3] It builds on a vast body of empirical research that shows performance and merit is colored by racial bias, such as résumé name bias[4] and how applicants with Black-sounding names are evaluated less favorably than applicants with white-sounding names with the same exact credentials.
These studies of bias permeate the criminal legal system — from policing to prosecution to sentencing, these systems demonstrate disparate treatment of the same conduct on the basis of race. Most deadly of all is shooter bias,[5] a reality that Black America knows all too well and has spurred Black uprisings throughout this year.[6]
The legal and policy implications of Kang's implicit bias research support the need for race-based affirmative action programs, which remain under attack. In the groundbreaking Harvard Law Review article "Whiteness as Property," critical race scholar Cheryl Harris explains how "affirmative action calls for equalizing treatment by redistributing power and resources in order to rectify inequities and to achieve real equality." Harris writes that "affirmative action is more than a program: it is a principle, internationally recognized, based on a theory of rights and equality."
Historically, we have seen affirmative action programs emerge from the civil rights era in public employment, higher education and government contracts. Affirmative action could be used by public and private actors to remediate systemic and generational racism across industries and institutions. However, following the civil rights movement, a number of legal challenges chipped away at affirmative action programs, under the guise of colorblind equality.
But if we understand that merit and the allocation of opportunities is already shaped by bias, then it also follows that such bias must be affirmatively countered through affirmative action, or what Kang aptly calls "fair measures."[7] In addition to promoting diversity and many other societal benefits, affirmative action is a corrective tool to address past and present racial harms.
The extensive body of research on implicit bias also raises serious questions regarding the intent doctrine in equal protection jurisprudence.[8] The intent doctrine makes access to the courts and redress for discrimination nearly impossible. According to the Equal Justice Society, the intent doctrine "requires plaintiffs to prove an almost impossible burden: a decision-maker's conscious intent to discriminate." Anti-discrimination and civil rights laws should match our lived reality — it should recognize discrimination whether they are a function of explicit or implicit bias.
While the New York report does not talk about affirmative action or the intent doctrine, it does name racism as a problem in the court system. This is a powerful starting point, and it presents an opportunity for racial justice lawyers to build upon it. It is our collective responsibility to shift public discourse on racism and the law, and to advocate for bold change.
No one report or set of trainings will do all the work that is needed. Fortunately, the work of critical race scholars, racial justice lawyers, activists and organizers are part and parcel of a broader movement to dismantle systemic racism in the courts and beyond.
Jason Wu is a staff attorney at the Legal Aid Society and a trustee for the Association of Legal Aid Attorneys.
"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the organization, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] http://www.nycourts.gov/whatsnew/pdf/SpecialAdviserEqualJusticeReport.pdf.
[2] http://ww2.nycourts.gov/sites/default/files/document/files/2018-03/12m%20-%20New%20Category%20of%20Credit%2022%20NYCRR%201500.2%28c%29-%28g%29%20-%20redlined.pdf.
[3] http://jerrykang.net/research/2010-are-ideal-litigators-white/.
[4] https://newsroom.ucla.edu/releases/ucla-study-suggests-researchers-look-more-closely-at-connections-between-names-and-race.
[5] https://www.motherjones.com/politics/2015/09/study-shows-racial-bias-shootings/.
[6] https://newrepublic.com/article/158725/fear-black-uprising-confronting-racist-policing.
[7] https://dash.harvard.edu/bitstream/handle/1/12220342/SSRN-id873907.pdf?sequence=1#:~:text=Fair%20Measures%3A%20A%20Behavioral%20Realist%20Revision%20of%20%22Affirmative,the%20country%27s%20law%20and%20practice.%20%E2%80%94%20Justice%20Ginsburg%2C.
[8] https://equaljusticesociety.org/law/intent/.