Discrimination and Implicit Bias in the Courtroom - College of Law
Legal Clinics

Discrimination and Implicit Bias in the Courtroom

Shawnee Arrington and William Woolston Terry West Civil Legal Clinic

I. INTRODUCTION

Courts across the country are adopting non-discrimination measures. Texas courts, for example, have required implicit bias training for judges since 2001 and are considering adding an annual training. A 2020 ABA resolution urged states to adopt mandatory implicit bias training for lawyers, judges, commissioners, referees, probation officers, and court personnel.1 A February 2022 resolution expanded this training to law students, requiring law schools to provide education on bias, cross-cultural competency, and racism.2 Such anti-discrimination measures not only reduce discrete instances of discrimination within the courts, but also help build trust with communities who may be more skeptical of the fairness of our judicial system.

Court and judicial staff in Oklahoma’s justice system could similarly benefit from anti-discrimination measures, including implicit bias training. Below is a snapshot of the ways in which implicit bias leads to discrimination in Oklahoma’s courts. They include bias based on minority status, culture, socioeconomic status, mental health, and appearance, as well as failures to comply with laws protecting marginalized groups. The examples below are taken from court observations and interviews with lawyers who work in multiple jurisdictions across the state.

II. EXAMPLES OF DISCRIMINATION IN OKLAHOMA’S JUDICIAL SYSTEM

A. Experiences of Attorneys from Minority Communities

Attorneys of color were repeatedly questioned about their identity and role at the court:

  • Court personnel assumed they were defendants.
  • They were forced to show bar licenses to enter the courthouse and courtroom while white attorneys were not.
  • They were forced to empty their bags and allow officers to search their person after going through security.
  • Attorneys wearing culturally representative attire were assumed to be parties in the case.
  • They received comments about how they carry themselves or are dressed.
  • They were threatened with contempt for seeking to enforce the Indian Child Welfare Act.
  • They were questioned about sitting in the front row of the courtroom, a section reserved for attorneys.

1American Bar Association, Resolution 116G, August 2020, https://www.americanbar.org/content/dam/aba/directories/policy/annual-2020/116g-annual-2020.pdf.

2American Bar Association, Resolution 300, February 2022, https://www.americanbar.org/content/dam/aba/directories/policy/midyear-2022/300-midyear-2022.pdf.

Specific reported or observed examples of bias against attorneys from minority communities include:

  • An attorney reported being stopped at the doors of the courtroom and forced to show their bar license, empty out their bag, and allow the officer to search their person, despite having already gone through security.
  • A Native American attorney who works on civil cases is routinely assumed to be a Tribal or U.S. Bureau of Indian Affairs (BIA) representative.
  • An African American attorney was assumed to be a public interest attorney. The judge did not believe he worked for a prestigious private firm and insisted on confirming his identity from the Entry of Appearance.

B. Experiences of Litigants from Marginalized Communities

The following examples are based on interviews and court observations:

  • Litigants from marginalized communities are assumed to be defendants.
  • Litigants who are not dressed “nice” are treated as defendants.
  • Litigants from marginalized groups are not allowed to speak in their hearing or stay in the courtroom.
  • Litigants from marginalized groups are the last allowed in the courtroom and are all grouped together.
  • Litigants are prevented from raising issues of bias or prejudice as a defense.
  • Poor litigants experienced bias based on their socioeconomic status, including being identified as the losing party before a hearing and being told they were not entitled to complain because they were on government assistance.
  • Litigants with mental health issues are discriminated against and denied access to legal protections. In one case, a mental health claim was dismissed even though federal law provided protection on this basis in the case.
  • Parties are not allowed to rely on their own interpreters even when court-approved interpreters are not present.

Specific reported or observed examples of bias against litigants from marginalized communities include:

  • A court staff member fat-shamed a woman for being unable to make it up the courthouse stairs quickly enough. When the woman attempted to report this to the judge, the judge responded by participating in the fat-shaming.
  • A woman was yelled at to remove her hijab and ended up leaving the courtroom instead.
  • A woman of color and her attorney were in the courtroom awaiting their trial. The judge sent them out of the courtroom and a few minutes later issued a default judgment.
  • A court official categorized a person of color as “just another one of those upset because we’re all white.”
  • An individual experiencing a mental health incident was removed from the courtroom and then had a default judgment issued against them.

III. MEASURES TO COMBAT DISCRIMINATION

These examples point to the need for concrete anti-discrimination measures.

Lawyers and judges, even those with the best intentions, are not immune to implicit bias. The first step in reducing discrimination is implicit bias training, which includes training that explains the insidious nature of implicit bias, as well as giving actionable steps to help reduce its effects on the day-to-day processes within our courts. There are various in person and remote implicit bias trainings. We have provided a short list of available resources on the following page.

RESOURCES

ABA Judicial Division – Fighting Implicit Bias
https://www.americanbar.org/groups/judicial/committees/fighting_implicit_bias/

The Joint Committee on Fighting Implicit Bias in the Justice System, with representatives from the ABA Judicial Division, Section on Litigation, and Criminal Justice Section works on promoting fairness and improving the administration of justice by bringing judges, courts, lawyers, academia, and community groups together on a national scale to advance citizen understanding and support for the justice system on the one hand and better administration of justice for all on the other.

ABA Implicit Bias Initiative Toolbox
https://www.americanbar.org/groups/litigation/initiatives/task-force-implicit-bias/

The ABA Section on Litigation has developed this Toolbox for use in exploring implicit bias and approaches to “debiasing.”

Building Community Trust Model Curriculum and Instruction Manual
http://docplayer.net/1688200-Building-community-trust-improving-cross-cultural.communication-in-the-criminal-justice-system.html

Developed as a Joint Project of the ABA Criminal Justice Section, Section of Individual Rights and Responsibilities, and Council on Racial and Ethnic Justice.

National Center for State Courts Toolbox
https://www.ncsc.org/information-and-resources/ibeducation

NCSC prepared an updated resource for the court community to summarize the current state of the continually maturing science on implicit bias as of March 2021. This report replaces NCSC’s 2012 report, Helping Courts Address Implicit Bias: Resources for Education.

Association of American Law Students (AALS) Law Deans Antiracist Clearinghouse Project
https://www.aals.org/about/publications/antiracist-clearinghouse/

The Association of American Law Schools has a variety of resources available including articles, books, studies, videos, and trainings.

A variety of commercial trainings and private consultants are also available.