The shifting perception of bias: Unveiling explicit and implicit distinctions

A while back, I noticed something very "interesting" about how the definition of bias seemingly changed once it was broken down into those that are explicit and those that are implicit.

Consider, for example, the following excerpt on Unconscious Bias Training from the Office of Diversity and Outreach from the University of California San Francisco:

"Bias is a prejudice in favor of or against one thing, person, or group compared with another usually in a way that's considered to be unfair.... There are types of biases 1. Conscious bias (also known as explicit bias) and 2. Unconscious bias (also known as implicit bias)

"It is important to note that biases, conscious or unconscious, are not limited to ethnicity and race. Though racial bias and discrimination are well documented, biases may exist toward any social group. One's age, gender, gender identity, physical abilities, religion, sexual orientation, weight, and many other characteristics are subject to bias.

"Unconscious biases are social stereotypes about certain groups of people that individuals form outside of their own conscious awareness." (italics added)

Did you notice the erasure?

What happened to biases pertaining to "things"? If biases are broken down to those that are conscious and those that are unconscious and if biases can and do pertain to "things," how is it that once broken down into conscious and unconscious biases, "things" disappeared from the definition? "Things" involve all biases other than those pertaining to a person or group. Thus, the vast majority of biases have been erased.

This erasure is by no means specific to the Office of Diversity and Outreach from the University of California San Francisco. The American Psychological Association's definition of implicit bias is similar, as is Harvard University's Project Implicit, the Perception Institute, and most other definitions I can find.

The State Bar of California amended Rule 2.72 to include implicit bias, and to require one hour of mandatory continuing legal education on implicit bias in addition to the one hour previously required for "the elimination of bias," effective with the Jan. 31, 2023 compliance period. Rule 2.72 was amended in accordance with AB 242 that was enacted by the California legislature, which defined implicit biases as follows:

"All persons possess implicit biases, defined as positive or negative associations that affect their beliefs, attitudes, and actions towards other people."

The legislation discusses the importance of becoming aware of one's biases and keeping them in check. Its intent in enacting the legislation was "to ameliorate bias-based injustice in the courtroom." Among other things, the legislature addressed the issues as follows:

"Section 6060.5 is added to the Business and Professions Code, to read: 6070.5 (a) The State Bar shall adopt regulations to require, as of January 1, 2022, that the mandatory continuing legal education (MCLE) curriculum for all licensees under this chapter includes training on implicit bias and the promotion of bias-reducing strategies to address how unintended biases regarding race, ethnicity, gender identity, sexual orientation, socioeconomic status, or other characteristics undermine confidence in the legal system. A licensee shall meet the requirements of this section for each MCLE compliance period ending after January 31, 2023."

The State Bar of California did exactly as it was required to do under California law.

Apparently, by eliminating biases pertaining to "things" from the definition of bias, the California legislature, and the State Bar of California plan on ameliorating "bias-based injustice."

Research clearly shows that people who receive lopsided information will be biased accordingly and make decisions in accordance with such bias. In 1996, twenty-seven years ago, an article by Lyle A. Brenner, Derek J. Koehler, and Amos Tversky from Stanford University titled "On the Evaluation of One-sided Evidence" was published in the Journal of Behavioral Decision Making. It states, in pertinent part, as follows:

"People do not compensate sufficiently for missing information even when it is painfully obvious that the information available to them is incomplete."

In other words, even if it is "painfully obvious" to people that conscious and unconscious biases can and do relate to "things," they will not "compensate sufficiently" for that missing information when the definitions of explicit and implicit biases are incomplete in that they do not include biases pertaining to "things."

So, while attempting to "ameliorate bias-based injustice" both in and out of the courtroom, bias has been redefined by limiting it to that which pertains to a person or group. This has occurred even though it has been long established that "people do not compensate sufficiently for missing information." This is why I keep saying that we are biasing people about bias and approach bias the way I do in my articles, commentary, and programs. Unfortunately, though, I am fighting a losing battle because of how biases are created, how they work, and their impact. People's biases can and do impact public policy and public policy then influences people's biases.

In my June 1, 2023 column, I mentioned that after my article "The Amplification of Bias in Family Law and Its Impact" was published in the Journal of the American Academy of Matrimonial Lawyers, Certified Family Law Specialists I know in California told me that they disagree about that which I consider bias. Of course they do, considering how bias has been redefined to eliminate "things."

Several attorneys I know have made similar comments to the following that a family law colleague posted on my personal Facebook page on Jan. 15, 2023:

"I was surprised when I haven't seen you on rosters for now mandatory implicit bias training. You have every right to be insulted."

It's no surprise that I have not been seen on rosters for such training, considering that I try to de-bias people who have now been biased about bias, and what I address is not limited to or even focused on biases pertaining to people and groups of people. I am not sharing this because I want to be considered for such things at this point because I am no longer interested; rather, I am sharing it to make a point.

For two consecutive semesters, I was on a panel with two other lawyer colleagues teaching the following to students enrolled in Introduction to Negotiations at Loyola Law School:

"Negotiator Identity and Negotiation Context: The Effects of Gender, Race, and National Culture."

I was then advised that the professors wanted to take a different approach. They asked me to teach that subject on my own and they now refer to it as follows:

"'Negotiator Identity and Negotiation Context: The Effects of Gender, Race, and National Culture' through the lens of bias and its effects."

Nov. 20, 2023 will be the fifth consecutive semester I will have taught that subject to the students enrolled in that course. The topic can be taught without biasing people about bias by erasing anything from the definition of bias, and both professors agreed that it is a "good idea" having me teach the subject to their students the way that I teach it.

Along those lines and "interestingly enough," even though my article "The Amplification of Bias in Family Law and Its Impact" never mentioned the words "race" or "racism," before the article was cited in a dissenting opinion by the Kansas Supreme Court as the first authority on judicial bias and parenting choices ("things"), before at least three Law Review articles citing it (on biases pertaining to "things"), and before it was cited in the 2023 edition of Family Law (Aspen Casebook Series) by Leslie Joan Harris, June R. Carbone, and Rachel Rebouche - a textbook used to teach family law to law students (pertaining to biases regarding "things") - it was shared in the Jan. 8, 2021 edition of the "Race, Racism and the Law" newsletter founded and edited by Vernellia R. Randall, Professor Emerita of Law, The University of Dayton School of Law. Professor Randall's University of Dayton profile starts as follows:

"A professor at the School of Law since 1990, Vernellia Randall writes extensively on and speaks internationally about race, women, and health care. She is the recipient of the Ohio Commission on Minority Health Chairman's Award, and she was named one of the 'Top 10 Most Influential African-Americans' on the 2001 Black Equal Opportunity Employment Journal list."

Left unchecked, biases cause people to constrict and distort the information they are able and willing to receive, try to understand, and consider in a fair manner. If erasing "things" from the definition of explicit and implicit bias is not constricting information, I do not know what is.

Also, bias is defined as "an unfair personal opinion that influences one's judgment." If it is only "usually in a way that's considered to be unfair," I am curious when "an unfair personal opinion that influences one's judgment" is considered fair. Furthermore, biases cannot be eliminated; rather, they can be reduced and otherwise kept in check to the extent possible.

The title of this column, Balanced Scale, refers to the scale of justice, which is described on the Supreme Court's website as "symbolizing the impartial deliberation, or 'weighing' of two sides in a legal dispute." Some synonyms for "impartial" are fair, just, objective, and unbiased.