The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Yesterday, I wrote about faculty and students being required to take pledges to support certain values, such as diversity and inclusion. These pledges do not define what actions have to be taken to support these values. There are great risks to sign.
Today, I learned that 150 law school deans (including my own) asked the American Bar Association to require "every law school provide training and education around bias, cultural competence, and anti-racism." The letter does not define what "anti-racism" training would consist of.
I suspect many schools will consider requiring students, and perhaps faculty, to take the Harvard University Implicit Bias Test, known as IAT. (The American Bar Association Section on Litigation already promotes the test.)
These tests do not accurately predict racism. The results cannot be replicated on multiple administrations. And there is a very weak correlation between test results and actual behavior. I encourage you to read a lengthy review in Vox (no right-wing rag) about the implicit bias test. Here is an excerpt:
Only the IAT doesn't predict subconscious racial biases, at least based on one test. So one time with the IAT might not tell you much, if anything, about your actual individual views and behavior.
As Lai told me, it's not clear if the test even predicts biased behavior better than explicit measures: "What we don't know is … whether or not the IAT and measures like the IAT can predict behavior over and above corresponding questionnaires of what we would call explicit measures or explicit attitudes."
The big problem with the test is it doesn't only pick up subconscious biases.
"The IAT is impacted by explicit attitudes, not just implicit attitudes," James Jaccard, a New York University researcher who's criticized the IAT, told me. "It is impacted by people's ability to process information quickly on a general level. It is impacted by desires to want to create a good impression. It is impacted by the mood people are in. If the measure is an amalgamation of many things (one of which is purportedly implicit bias), how can we know which of those things is responsible for a (weak) correlation with behavior?
Professor Brian Leiter (Chicago), whom I tend to disagree with on many things, pithily described the problem with IAT:
[The IAT] doesn't measure implicit bias, and what it does measure doesn't correlate with discriminatory behavior.
Law schools should not impose such a flawed test on their students and faculty.
In the abstract, I don't have any objections to mandatory training I disagree with. For example, we are all required to take Title IX training. I think various aspects of the Title IX regime violate federal law, and other aspects violate the Due Process and Equal Protection Clauses. But I don't have an issue with clicking through an online presentation, and certifying my attendance.
But implicit-bias training is very different. It does not merely seek to convey information. It is designed to extract information, and use that information to force a person reconsider his or her own approach to society. And, students and faculty will not merely need to certify their completion of the course. I fear the reports of these tests may provide basis for further counseling, remediation, and re-education.
If a law school asks you to take a test, and simply certify that you completed the test, the harm is minimal. But if a school demands to know the results of your test, you should decline to take the test. That information can and will be used against you. And challenging the results will provide dispositive proof of bigotry, racism, and fragility. Again, there is no possible dissent from this new orthodoxy.
Our society is moving very, very quickly now. A few years ago, it was considered unthinkable for professional athletes to kneel during the national anthem. Now the handful of players who deign to stand have to explain themselves. Norms that were once well-entrenched are being unsettled rapidly. I understand the desire of law schools to take proactive steps to address pressing racial issues. But we should be very, very careful before we impose loyalty pledges and flawed social science testing on faculty and students. These measures are unlikely to succeed in changing hearts and minds, and are far more likely to backfire, and impede forward progress.