Implicit Bias in the Courtroom

Situationist Contributor Jerry Kang and his numerous co-authors, Mark Bennett, Devon Carbado, Pamela Casey, Nilanjana Dasgupta, David Faigman, Rachel Godsil, Anthony Greenwald, Justin Levinson, and Jennifer Mnookin, have just posted their important paper, “Implicit Bias in the Courtroom” (forthcoming UCLA Law Review, Vol. 59, No. 5, 2012) on SSRN.  Here’s the abstract:

Given the substantial and growing scientific literature on implicit bias, the time has now come to confront a critical question: What, if anything, should we do about implicit bias in the courtroom? The author team comprises legal academics, scientists, researchers, and even a sitting federal judge who seek to answer this question in accordance with “behavioral realism.” The Article first provides a succinct scientific introduction to implicit bias, with some important theoretical clarifications that distinguish between explicit, implicit, and structural forms of bias. Next, the article applies the science to two trajectories of bias relevant to the courtroom. One story follows a criminal defendant path; the other story follows a civil employment discrimination path. This application involves not only a focused scientific review but also a step-by-step examination of how criminal and civil trials proceed. Finally, the Article examines various concrete intervention strategies to counter implicit biases for key players in the justice system, such as the judge and jury.

Download paper for free.

Related Situationist posts:

• Implicit Bias Symposium (with links to videos)
• The Situation of ‘Common Sense’
• Pushback from the Left
• Why Race May Influence Us Even When We “Know” It Doesn’t
• Perceptions of Racial Divide
• Black History is Now
• Jennifer Eberhardt’s “Policing Racial Bias” – Video
• The Situation of Litigators
• Tierney’s Skepticism at the New York Times
• Measuring Implicit Attitudes
• What Are the Legal Implications of Implicit Biases?
• Confronting the Backlash against Implicit Bias
• Legal Academic Backlash – Abstract
• Naïve Cynicism in Election 2008: Dispositionism v. Situationism?
• Implicit Bias and Strawmen
• The Situation of Situation in Employment Discrimination Law – Abstract.”

Implicit Gender Bias in Legal Profession

Justin Levinson and Danielle Young posted their excellent article, “Implicit Gender Bias in the Legal Profession: An Empirical Study” (Duke Journal of Gender Law & Policy, Vol. 18, No. 1, 2010) on SSRN.  Here’s the abstract.

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In order to test the hypothesis that implicit gender bias drives the continued subordination of women in the legal profession, we designed and conducted an empirical study. The study tested whether law students hold implicit gender biases related to women in the legal profession, and further tested whether these implicit biases predict discriminatory decision-making. The results of the study were both concerning and hopeful. As predicted, we found that implicit biases were pervasive; a diverse group of both male and female law students implicitly associated judges with men, not women, and also associated women with the home and family. Yet the results of the remaining portions of the study offered hope. Participants were frequently able to resist their implicit biases and make decisions in gender neutral ways. Taken together, the results of the study highlight two conflicting sides of the ongoing gender debate: first, that the power of implicit gender biases persists, even in the next generation of lawyers; and second, that the emergence of a new generation of egalitarian law students may offer some hope for the future.

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Download article for free.

Related Situationist posts:

• Unequal Juries
• What Are the Legal Implications of Implicit Biases?
• The Gendered Situation of Math, Humanities, and Romance
• Not Just Whistling Vivaldi
• “Women’s Situational Bind,”
• “The Nerdy, Gendered Situation of Computer Science.”
• “Social Psychologists Discuss Stereotype Threat,”
• “The Gendered Situation of Chess,”
• “The Situation of Gender-Science Stereotypes,”
• “The Situation of Gender and Science,”
• “Stereotype Threat and Performance,”
• “The Gendered Situation of Science & Math,”
• “Gender-Imbalanced Situation of Math, Science, and Engineering,”
• “Sex Differences in Math and Science,”
• “You Shouldn’t Stereotype Stereotypes,”
• “Women’s Situation in Economics,”
• “Your Group is Bad at Math,” and
• “Belonging.”

Anthony Greenwald on The Psychology of Blink

From ResearchChannel:

[Situationist friend] Dr. Anthony Greenwald, professor of psychology at the University of Washington, describes his research developing the method (described in Malcolm Gladwell’s Blink) that reveals unconscious thought patterns that most people would rather not possess. Learn about these mental contents, as Dr. Greenwald demonstrates the method and describes how these patterns affect our behavior.

From ResearchChannel:

In this program from the University of Washington psychology department, MacArthur awardee Dr. Lisa Cooper, professor at John Hopkins University School of Medicine, describes her research on how patient race influences patient-physician communication and physician clinical decision making. She also includes her efforts to design interventions to negate these undesired racial and ethnic health care disparities.

Related Situationist posts:

• The Implicit Situation of Love
• Implicit Associations on Oprah
• “The Interior Situation of Undecided Voters,”
• “Confronting the Backlash against Implicit Bias,”
• “The Interior Situation of Suicide,”
• “Implicit Associations on Oprah,”
• “MSNBC Report on Implicit Associations,”
• “Measuring Implicit Attitudes,”
• “Mispredicting Our Reactions to Racism,”
• “Banaji & Greenwald on Edge – Part IV,” and
• “Do You Implicitly Prefer Markets or Regulation?”

David Eagleman on the Brain and the Law

From theRSAorg:

Dr David Eagleman considers some questions relating to law and neuroscience, challenging long-held assumptions in criminality and punishment and predicting a radical new future for the legal system.

[Eagleman’s examples in the first 15 minutes will  strike long-term readers of The Situationist as non-novel.  For others, that portion of the video may be a useful primer to neurolaw.]

Related Situationist Posts:

• Dan Dennett at Harvard Law on “Free Will, Responsibility, and the Brain”
• “Interview with Professor Joshua Greene,”
• “Daniel Dennett on the Situation of our Brain,”
• “Dan Dennett on our Interior Situation,”
• “Bargh and Baumeister and the Free Will Debate,”
• “Bargh and Baumeister and the Free Will Debate – Part II,”
• “The Death of Free Will and the Rise of Cheating,”
• “Clarence Darrow on the Situation of Crime and Criminals,”
• “Person X Situation X System Dynamics,” “Situation” Trumps “Disposition” – Part I & Part II,”
• “The (Unconscious) Situation of our Consciousness – Part I, Part II, Part III, & Part IV” and
• “Coalition of the Will-less.”

 

 

Pushback from the Left

Situationist Contributor Jerry Kang recently posted his thoughtful essay, “Implicit Bias and the Pushback from the Left” (St. Louis University Law Journal, Vol. 54, p. 1139, 2010) on SSRN.  Here’s the abstrct.

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Over the past three decades, the mind sciences have provided remarkable insights about how our brains process social categories. For example, scientists have discovered that implicit biases – in the form of stereotypes and attitudes that we are unaware of, do not consciously intend, and might reject upon conscious self-reflection – exist and have wide-ranging behavioral consequences. Such findings destabilize our self-serving self-conceptions as bias-free. Not surprisingly, there has been backlash from the political Right. This Article examines some aspects of the more surprising pushback from the Left.

Part I briefly explains how new findings in the mind sciences, especially Implicit Social Cognition, are incorporated into the law, legal scholarship, and legal institutions, under the banner of “behavioral realism.” Part II describes the pushback from the Left. Part III responds by suggesting that our deepest understanding of social hierarchy and discrimination requires analysis at multiple layers of knowledge. Instead of trading off knowledge, for example, at the cognitive layer for the sociological layer (or vice versa), we should seek understanding at each layer, and then interpenetrate the entire stack.

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Download the essay for free here.  For a sample of related Situationist posts, see

The Implicit Situation of Love

Earlier this month, Anthony Greenwald, one of the pioneers in IAT research, posted on Scientific American.  Here is how his piece, titled “I Love Him, I Love Him Not” began.

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Over a decade ago, I devised a test for detecting attitudes and biases operating below the level of a person’s awareness.

Known as the Implicit Association Test, or IAT, it is presently the most widely used of the measures of implicit attitudes that have been developed by social psychologists over the past 25 years. It has been self-administered online by millions, many of whom have been surprised—sometimes unpleasantly—by evidence of their own unconscious attitudes and stereotypes regarding race, age, gender, ethnicity, religion, or sexual orientation.

Now it is my turn to be surprised—pleasantly. The test has been used for a purpose that I long imagined as possible, but never dared attempt, knowing that it needed the attention of psychologists who focus on romantic relationships.  The results suggest that the IAT is effective in predicting which romantic relationships will last.

The report, just published in the journal Psychological Science, is provocatively titled “Assessing the Seeds of Relationship Decay.” In it, three psychologists at the University of Rochester — Soonhee Lee, Ronald Rogge, and Harry Reis—describe their research predicting relationship breakup. They recruited participants by many means, including referrals by psychology faculty and various Internet sources. The mostly female participants were married, engaged, or otherwise in exclusive, committed relationships.

The research started with the collection of several measures—not only the IAT, but also some established questionnaire measures of relationship quality—all of which might be useful predictors of breakup.  Of the 222 participants who started, 116 were successfully re-contacted to obtain reports on the status of their relationships at various times up to 12 months later.

Nineteen (16%) of the re-contacted participants reported that a breakup had occurred.  Remarkably, the IAT measure of a subject’s attitude toward her partner did a better job of predicting the breakup than did several questionnaire measures of relationship quality.

The authors concluded that the questionnaire measures might have been ineffective either because participants were unaware of negative attitudes toward their partners or perhaps because they knew about them but were unwilling to report them. If that’s correct, the IAT worked because it depends on neither awareness of the attitude nor willingness to report it.

What exactly is the IAT, and how does it tap into mental processes that can operate outside of awareness?

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You can read the entire post here.

For a sample of related Situationist posts, see “Cupid’s Situation,” “The Situation of Love,” “Some Situational Signals of a Suicidal Disposition,” “The Interior Situation of Undecided Voters,” “The Interior Situation of Suicide,” “Implicit Associations on Oprah,” “MSNBC Report on Implicit Associations,”“Measuring Implicit Attitudes,” “Mispredicting Our Reactions to Racism,” “Banaji & Greenwald on Edge – Part IV,” and “Do You Implicitly Prefer Markets or Regulation?,”

Shirley Sherrod and the Situation of Racial Discourse

Situationist friend Charles Ogletree and Johanna Wald had a terrific editorial this Sunday, titled “After Shirley Sherrod, We all Need To Slow Down and Listen,” in which, among other things, they discuss the relevance of research by Situationist Contributors Mahzarin Banaji and Jerry Kang.  Here are some excerpts.

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President Obama has called and chatted with Shirley Sherrod. Tom Vilsack and Ben Jealous have issued heartfelt apologies. There is talk of a “Chardonnay summit” in the Rose Garden. The subtext to all this? Let’s wrap up this incident quickly so we can all go on our vacations guilt-free, secure in the knowledge that our “post-racial society” remains intact.

Once again, in the midst of the cacophony, calls abound for a national “dialogue” on race. Yet our nation cannot muster the patience or stamina to sustain such a discussion beyond a single news cycle. In some ways, Sherrod’s tale is a metaphor for this country’s aborted efforts to address race. In its entirety, her deeply moving story was about transformation and reconciliation between blacks and whites. It contained the seeds of progress and healing. She spoke of blacks and whites working together to save farms and to end poverty and suffering. But Sherrod, and those listening to her story, could get to her hopeful conclusion only by first wading through painful admissions of racial bias and struggle.

Unfortunately, our news and political cycles make it impossible for any of us to stay in a room long enough to reach that transformative moment. At the barest suggestion of race, we line up at opposite corners and start hurling accusations. Attorney General Eric Holder was widely criticized last year for suggesting that we are a “nation of cowards” when it comes to such discussions. The reaction to his comments is a reminder that we cannot continue to ignore this challenge. Yet Americans refuse to acknowledge that, in today’s society, racial attitudes are often complicated, multi-layered and conflicted.

Racial inequality is perpetuated less by individuals than by structural racism and implicit bias. Evidence of structural inequality is everywhere: in the grossly disproportionate numbers of young black men and women in prison; in the color of students shunted into remedial and special education tracks; in the stubborn segregation of our neighborhoods and schools; in the lack of recreational and academic opportunities for children of color in poor communities; in the inferior medical treatment that people of color receive; and in the still appallingly small numbers of men and women of color in law firms, corporations and government. It is evident, too, in the history of blatant discrimination against black farmers practiced by the Agricultural Department.

But that does not make doctors, nurses, police officers, judges, teachers, lawyers, city planners, admission officers or others prejudiced. Most are well-intentioned professionals who believe themselves to be free of racial bias. From their perspective, it is not easy to connect individual actions and decisions to broader structural conditions and environments built up over decades and even centuries.

Implicit bias is a reality we must confront far more openly. A growing mass of compelling research reveals the unconscious racial stereotypes many of us harbor that affect our decisions. Such attitudes do not make us prejudiced; they make us human. Those who take the Implicit Association Test often express shock when results show that their unconscious biases conflict with their explicit egalitarian values and ideals. Nonetheless, white and black test-takers match black faces more quickly than white ones with words representing violent concepts and are more likely to mistake a harmless object for a gun when it is carried by a black person. One study found that the more stereotypically black the features of a criminal defendant, the harsher the sentence he or she is likely to receive. Implicit bias has been shown to factor into hiring decisions and into the quality of health care that individuals receive. Mazharin Banaji and Jerry Kang, leading scholars on implicit bias, have noted: “As disturbing as this evidence is, there is too much of it to be ignored.”

The good news is that structures can be dismantled and replaced and unconscious biases can be transformed, as happened to Shirley Sherrod and the family she helped, the Spooners. First, though, they must be acknowledged. We and others researching race and justice are committed to untangling the web of structures, conditions and policies that lead to unequal opportunities. Our nation has to stop denying the complexity of our racial attitudes, history and progress. Let’s tone down the rhetoric on all sides, slow down and commit to listening with less judgment and more compassion. If Americans did so, we might find that we share more common ground than we could have imagined.

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For a sample or related Situationist posts, see “The Situation of ‘Common Sense’,” “Why Race May Influence Us Even When We “Know” It Doesn’t,” “Perceptions of Racial Divide,” “Black History is Now,” “Jennifer Eberhardt’s “Policing Racial Bias” – Video,” “Measuring Implicit Attitudes,” “What Are the Legal Implications of Implicit Biases?,” “Confronting the Backlash against Implicit Bias,” and “Implicit Bias and Strawmen.”

Some Situational Signals of a Suicidal Disposition

From Physorg:

Following the suicide of a relative or close friend, surviving family members and friends are left with a number of painful questions: “What made them do it?,” “Why didn’t they get help?”  The most troublesome question is often, “Is there anything I could have done to prevent this?” People who are contemplating suicide tend to conceal their behavior, or deny they are having suicidal thoughts, so it can be difficult to identify warning signs. Even experienced clinicians sometimes do not catch any warning signs and suicide experts have been searching for a clear behavioral marker of suicide risk.

Psychological scientist Matthew Nock of Harvard University, along with colleagues from Harvard University and Massachusetts General Hospital, adapted the Implicit Association Test (IAT)  to measure associations between life and death/suicide and examined if it could be effective in predicting suicide risk.

The IAT is a widely used test that measures automatic associations people hold about various topics ó participants are shown pairs of words and how quickly they respond indicates if they unconsciously associate those words together. In the IAT version used in this study, participants classified words related to “life” (e.g., breathing) and “death” (e.g., dead) and “me” (e.g., mine) and “not me” (e.g., them). Faster responses to “death”/”me” stimuli than “life”/”me” stimuli would suggest a stronger association between death and self.

People seeking treatment at a psychiatric emergency room participated in this study. They completed the IAT and various mental health assessments. In addition, their medical records were examined six months later to see if they had attempted suicide within that time.

The results, reported in Psychological Science, a journal of the Association for Psychological Science, revealed that participants presenting to the emergency room after a suicide attempt had a stronger implicit association between death/suicide and self than did participants presenting with other psychiatric emergencies. In addition, participants with strong associations between death/suicide and self were significantly more likely to make a suicide attempt within the next six months than were those who had stronger associations between life and self. These results suggest that an implicit association between death/suicide and self may be a behavioral marker for suicide attempt. These findings also indicate that measures of implicit cognition may be useful for identifying and predicting clinical behaviors that tend not be reported.

As Nock explains, “these results are really exciting because they address a long-standing scientific and clinical dilemma by identifying a method of measuring how people are thinking about death and suicide that does not rely on their self-report.”  He adds, “we are hopeful that this line of research ultimately will provide scientists and clinicians with new tools for measuring how people think about sensitive clinical behaviors that they may be unwilling or unable to report on verbally.”

[Situationist Contributor] Mahzarin Banaji, also of Harvard University and a co-author of this study, adds that this work presents a strong argument for the importance of funding basic behavioral research.  “These results are an example of basic research helping to solving a troubling and devastating problem in every society. The method we used was designed to understand the mind, but it turned into a technique that can predict disorders of a variety of sorts. One wonders why funding agencies that should know better about the value of basic research seem so naive when it comes to decisions about what is in the public’s interest,” Banaji explains.

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For a sample of related Situationist posts, see “Race and Implicit American-ness,” and “The Interior Situation of Undecided Voters,” “The Interior Situation of Suicide,” and “The Disturbing Mental Health Situation of Returning Soldiers.”

Race and Implicit American-ness

In case you missed it, here is a worthwhile CNN International interview of Thierry Devos and Debbie Ma about their study, titled “Is Barack Obama American Enough to Be the Next President?: The Role of Ethnicity and National Identity in American Politics” (pdf  here).  The study’s introduction is as follows.

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Recent research has demonstrated a tenacious propensity to more readily ascribe the American identity to Whites than to ethnic minorities . . . . Interest in this American = White effect is timely given that a front runner in the 2008 presidential election is African American. The aim of the present research was to determine the role of ethnicity and national identity in the perception of political candidates, as well as identify correlates (behavioral, attitudinal, individual differences) of the American = White effect.

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Roughly, the study found, among other things, that a black candidate may be implicitly conceived of as less American than a white candidate and that the more American a candidate is construed as being the more support that candidate receives.   Here’s the video.

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To read a sample of related Situationist posts, see “Racial Attitudes in the Presidential Race,” “The Situation of Being ‘(un)American’,” “The Racial Situation of Voting,” “Why Race May Influence Us Even When We “Know” It Doesn’t,”“On Being a Mindful Voter,” “Your Brain on Politics,” “Implicit Associations in the 2008 Presidential Election,” “The Situation of Political Animals,” “Political Psychology in 2008,” “Perceptions of Racial Divide,The Psychology of Barack Obama as the Antichrist,” and “The Interior Situation of Undecided Voters.”

Take our Policy IAT here.

Implicit Associations on Oprah

Oprah, Malcolm Gladwell, and Dr. Anthony Greenwald discuss the race-based Implicit Association Test and why some people show an unconscious bias in favor of White people over Black people.

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For a sample of related Situationist posts, see “Measuring Implicit Attitudes,” “What Are the Legal Implications of Implicit Biases?,” “Confronting the Backlash against Implicit Bias,” “Do You Implicitly Prefer Markets or Regulation?,” “Legal Academic Backlash – Abstract,” “Naïve Cynicism in Election 2008: Dispositionism v. Situationism?,”  “Implicit Bias and Strawmen.”and “The Situation of Situation in Employment Discrimination Law – Abstract.”

To take the Policy IAT, click here.  For a list of Situationist posts discussing the research on implicit bias and the IAT, click here.

Take the Policy IAT

If you haven’t already (or even if you have), we invite you to take, the “Policy IAT.”  We urge  individuals of all political and ideological orientations to participate in the on-line test designed to examine whether and to what extent people have implicit preferences for certain types of policy options.  Please encourage your friends (and, to those of you who are bloggers, your readers) to participate as well.

To learn more or to take the Policy IAT (a roughly 15-minute task), click here.

Measuring Implicit Attitudes

From University of Washington News

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Study supports validity of test that indicates widespread unconscious bias

In the decade since the Implicit Association Test was introduced, its most surprising and controversial finding is its indication that about 70 percent of those who took a version of the test that measures racial attitudes have an unconscious, or implicit, preference for white people compared to blacks. This contrasts with figures generally under 20 percent for self report, or survey, measures of race bias.

A new study (pdf here) validates those findings, showing that the Implicit Association Test, a psychological tool, has validity in predicting behavior and, in particular, that it has significantly greater validity than self-reports in the socially sensitive topics of race, gender, ethnicity, sexual orientation and age.

The research, published in the Journal of Personality and Social Psychology, is an overview and analysis of 122 published and unpublished reports of 184 different research studies. In this analysis, 85 percent of the studies also included self-reporting measures of the type generally used in surveys. This allowed the researchers, headed by University of Washington psychology Professor Anthony Greenwald, to compare the test’s success in predicting social behavior and judgment with the success of self-reports.

“In socially sensitive areas, especially black-white interracial behavior, the test had significantly greater predictive value than self-reports. This finding establishes the Implicit Association Test’s value in research to understand the roots of race and other discrimination,” said Greenwald. “What was especially surprising was how ineffective standard self-report measurers were in the areas in which the test measures have been of greatest interest – predicting interracial behavior.”

Greenwald created the Implicit Association Test in 1998 and he and [Situationist Contributor] Mahzarin Banaji, a Harvard psychology professor, and [Situationist Contributor] Brian Nosek, a University of Virginia associate professor of psychology, further developed it. Since then the test has been used in more than 1,000 research studies around the world. More than 10 million versions of the test have been completed at an Internet site where they are available as a self-administer demonstration.

The research looked at studies covering nine different areas – consumer preference, black-white interracial behavior, personality differences, clinical phenomena, alcohol and drug use, non-racial intergroup behavior, gender and sexual orientation, close relationships and political preferences.

Findings also showed that:

• Across all nine of these areas, measures of the test were useful in predicting social behavior.
• Both the test, which is implicit, and self-reports, which are explicit, had predictive validity independent of each other. This suggests the desirability of using both types of measure in surveys and applied research studies.
• In consumer and political preferences both measures effectively predicted behavior, but self-reports had significantly greater predictive validity.

Studies in the research came from a number of countries including Germany, the Netherlands, Italy, the United Kingdom, Australia, Canada, Poland and the United States. They looked at such topics as attitudes of undecided voters one-month prior to an Italian election; treatment recommendations by physicians for black and white heart attack victims; and reactions to spiders before and after treatment for arachnophobia, or spider phobia.

“The Implicit Association Test is controversial because many people believe that racial bias is largely a thing of the past. The test’s finding of a widespread, automatic form of race preference violates people’s image of tolerance and is hard for them to accept. When you are unaware of attitudes or stereotypes, they can unintentionally affect your behavior. Awareness can help to overcome this unwanted influence,” said Greenwald.

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To visit the Project Implicit website and find out more about implicit associations, click here.

For a sample of related Situationist posts, see “What Are the Legal Implications of Implicit Biases?,” “Confronting the Backlash against Implicit Bias,” “Do You Implicitly Prefer Markets or Regulation?,” “Legal Academic Backlash – Abstract,” “Naïve Cynicism in Election 2008: Dispositionism v. Situationism?,”  “Implicit Bias and Strawmen.”and “The Situation of Situation in Employment Discrimination Law – Abstract.”  For a list of Situationist posts discussing the research on implicit bias and the IAT, click here.

The Situation of Litigators

Situationist Contributor Jerry Kang, Nilanjana Dasgupta, Kumar Yogeeswaran, and Gary Blasi, recently posted their terrific new paper “Are Ideal Litigators White? Measuring the Myth of Colorblindness” on SSRN.  Here’s the abstract.

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This study examined whether explicit and implicit biases in favor of Whites and against Asian Americans would alter mock jurors’ evaluation of a litigator’s deposition. We found evidence of both explicit bias as measured by self-reports, and implicit bias as measured by two Implicit Association Tests. In particular, explicit stereotypes that the ideal litigator was White predicted worse evaluation of the Asian American litigator (outgroup derogation); by contrast, implicit stereotypes predicted preferential evaluation of the White litigator (ingroup favoritism). In sum, participants were not colorblind, at least implicitly, towards even a “model minority,” and these biases produced racial discrimination. This study provides further evidence of the predictive and ecological validity of the Implicit Association Test.

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To download the paper for free, click here. To review all of the previous Situationist posts discussing implicit associations click on the “Implicit Associations” category in the right margin, or, for a list of such posts, click here.

MSNBC Report on Implicit Associations

Here’s a ten-minute MSNBC segment on IAT test, in which Tony Greenwald attempts to shed light on the test results of two commentators on MSNBC’s Morning Meeting.

Vodpod videos no longer available.

To read a sample of related Situationist posts, see “Mispredicting Our Reactions to Racism,” “Banaji & Greenwald on Edge – Part IV,” “Mahzarin Banaji’s Situation,” “The Situation of  Situationist – Mahzarin Banaji.”

To review the full collextion of previous Situationist posts discussing implicit associations click on the “Implicit Associations” category in the right margin or, for a list of such posts, click here. Go to Project Implicit to take the IAT discussed in this report here.  Take the Policy IAT here.

What Are the Legal Implications of Implicit Biases?

A federal judge and regular reader of The Situationist recently sent me a thoughtful e-mail containing the following paragraph.  The judge is asking for input regarding the practical legal consequences of IAT research for employment law.

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A thought about the IAT and employment law from a practicing judge–even if the law as it now stands does not effectively address some instances of bias, where do we go with that insight? I see no practical, effective way to utilize the IAT in actual employment cases.  Moreover, by far the biggest problem in employment law that any one studying our actual cases would discern is the surfeit of meritless cases.  The ease with which many weak cases get by summary judgment and the likelihood of substantial litigation expense lead to settlement of  hundreds, and perhaps thousands, of  cases throughout the country each year brought by plaintiffs you or almost any one else reasonably objective (if I can still use that word) would have fired, not promoted, chosen for layoff, etc.  A statutory approach designed to help people get a foot in the door–when that door had
for so long been unfairly closed–is now almost exclusively used by plaintiffs who got the job, got the opportunity. The sense that employment litigation has become something of a settlement racket has led to cynicism in the work place, among the bar, and to some extent even on the bench. I think this is tragic, and a disgrace to the legacy of those who suffered to advance the cause of equality under law.  I am conscious of my own general frustration, and I really do try to be open-minded and fair in dealing with each individual case-  and there are still  meritorious ones that come my way. While I am not a spokesman for the judiciary in even the slightest way, I do think most judges see the area of law as I do, and most, despite concern or frustration, also try very hard to remain open-minded in approaching each individual case. I wonder, do scholars writing about implicit bias and employment law generally have any sense of what the actual cases are like?  Any thoughts?

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Situationist friend and legal scholar Tamara Piety responds as follows:

The judge’s comments raise important issues. But I think these issues have more to do with the problems of the structure of litigation, the cost of litigation and how the presence of financial incentives create a particular sort of (predictable) distortion in outcomes insofar as they depart from what an observer might conclude is the “truth” about the facts. Litigation is binary.

With some qualifications about the way in which the amount of damages can be used as a sort of Solomonic device to split the difference and not clearly find for either party, litigation is binary and you either win or you lose. Moreover, it costs something. So in every civil case that involves a business entity (the purpose of which is to make money not to reform social policy), the persons making decisions on behalf of the entity weight the relative costs of pursuing or defending an action against the financial benefits likely to accrue rather than on the “principle” at issue.

This is true of personal injury lawsuits, intellectual property disputes, contract disputes, in short, disputes of all kinds. So if it is the case that such a racket exists, it is arguably as much due to the financial incentives for defendants to settle as it is the evidence or legal standards, or at least they are inextricably intertwined. Should we blame defendants for “frivolously” settling and thus contributing to the situation of which the judge complains? Probably not, as it would seem awfully burdensome to say that defendants must continue to defend cases where the defense is meritorious, no matter the cost to themselves not to mention economically unsound. The same may not be true of fired, dismissed or non-promoted defendants whose livelihoods are at stake and who *may* (in some circumstances) have few options beyond suing. For these individuals (and for unions) bringing the lawsuit may not be solely about the financial benefit but about dignity, setting and example for others, self-defense, etc.

I am also struck by many aspects of the judge’s comments that draw a picture that contains many implicit assumptions. It is not self-evident to me that the existing employment laws that grant such broad and virtually unreviewable discretion to employers to discharge employees at will is a good thing that any reasonably objective person would agree strikes the appropriate balance of power between employee and employers so that anyone would agree that a particular person should not have been retained or promoted.

Maybe it does, but I am not sure about that. And what if a part of the explanation for the poor performance is a hostile environment that exacerbated the employee’s deficiencies? Moreover, the comment seems to assume that damages are a sufficient incentive to bring such a suit, even though the fact of having filed a lawsuit against a previous employer may make an employee virtually unemployable in their chosen profession. Given the seriousness of the consequences for at least some plaintiffs, I wouldn’t be as apt to conclude that cases without merit were brought frequently (although clearly the judge is in a far better position to judge the current situation in the courts than I).

And, just as it is possible to behave in a discriminatory manner while not intending to do so, that is with a pure heart, I think it might be possible to file a law suit as a plaintiff in the sincere belief that you have been discriminated against even if you have not been.

I also don’t think it is entirely accurate to say that the laws against discrimination were intended “solely” to allow people to get a “foot in the door.” It is of little merit to give someone an opportunity if that opportunity is not a real one because you will be applying standards that the employee cannot meet. I think we have perhaps entered the stage in the country’s development where some of the biggest problems of racial, gender and other bias are not in problems of overt and intentional discrimination, but in trying to ferret out the ways in which we may not be applying standards or rules as even-handedly as we imagine we are, or indeed as we want to do in order to ensure equality of opportunity for all.

The IAT information speaks to that issue. As someone who teaches Evidence I would respond that the place for the IAT evidence is as one piece of evidence that may be offered by a plaintiff – not determinative or conclusive evidence, perhaps not sufficient evidence, but evidence nonetheless. The judge seems frustrated that these cases don’t reach the truth of discrimination and create bad will and hostility to the goals of equality through the promotion of frivolous lawsuits.

I understand that frustration since I experienced that frustration when I practiced law. But it seems to me to be an observation that could be made about litigation generally – contract disputes, shareholder suits, trademark disputes, property disputes, etc. and is not the special province of discrimination suits and certainly no reason to exclude important, relevant evidence from consideration.

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Please post your responses or thoughts as comments.   To read some recent, related Situationist posts, see “Confronting the Backlash against Implicit Bias,” and “The Situation of Situation in Employment Discrimination Law – Abstract.”  For a list of Situationist posts discussing the research on implicit bias and the IAT, click here.

The Situation of Situation in Employment Discrimination Law – Abstract

Melissa Hart and Paul Secunda have posted their excellent paper, “A Matter of Context: Social Framework Evidence in Employment Discrimination Class Actions” (forthcoming 78 Fordham Law Review (2009)) on SSRN.  Here is the abstract.

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In litigation disputes over the certification of employment discrimination class actions, social scientists have come to play a central, yet controversial, role. Organizational behavioralists and social psychologists regularly testify for the plaintiffs, offering what is commonly referred to as social framework testimony. These experts explain the general social science research on the operation of stereotyping and bias in decisionmaking and examine the policies and practices operating in a challenged workplace to identify those that research has shown will tend to increase and those that will tend to limit the likely impact of these factors. Defendants fight hard against the admission of social framework experts, and some courts have agreed that the testimony should not be allowed. Because of the importance of this testimony to ferreting out large-scale discrimination in the workplace, the stakes in the debate over its admissibility are considerable.

The debate has moved recently from the courtroom to the pages of law reviews. In an essay published last fall, three academics argued that social framework testimony as it is commonly accepted by district courts should be categorically disallowed. The arguments for the exclusion of social framework testimony as it is currently presented in employment discrimination class action litigation are fundamentally flawed. A blanket exclusion of this evidence is inconsistent with the Federal Rules of Evidence and Supreme Court precedent on the district courts’ responsibility for assessing the admissibility of expert testimony more generally.

This article puts the debate over social framework expert testimony in context, explaining what the testimony is and the role it has played in employment discrimination litigation, with a particular focus on the way the testimony has been offered in class action suits like Dukes v. Wal-Mart. It explains how the normal rules of evidence law should apply to social framework expert testimony, and under the flexible and permissive standards of the Federal Rules of Evidence, framework testimony offered by a qualified expert should be admissible in many employment class actions. The argument that this kind of evidence should always be excluded is driven as much by a particular view of employment discrimination law as by the governing evidentiary rules. Ultimately, the arguments for blanket exclusion of social framework testimony in these cases can best be understood as part of a political debate and a litigation strategy.

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You can download the paper for free here.  For a sample of related Situationist posts, see “Litigating Unconscious Discrimination – Abstract” and “Implicit Bias and Strawmen.”

The Situational Effect of Groups

In his Guardian article, “Hands up if you’re an individual,” Stuart Jeffries offers a brief summary of some social psychology classics.  Below, we have included excerpts.  After reviewing Milgram’s famous experiments on obedience, Jeffries writes:

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This was one of the classic experiments of group psychology, though not all have involved duping volunteers into believing they had electrocuted victims. Group psychology has often involved experiments to explain how individuals’ behaviours, thoughts and feelings are changed by group pressures.

It is generally thought to have originated in 1898 when Indiana University psychologist Norman Triplett asked children to spin a fishing reel as fast as they could. He found that when the children were doing the task together they did so much faster than when alone. Triplett found a similar result when studying cyclists – they tended to record faster times when riding in groups rather than alone, a fact that he explained because the “bodily presence of another contestant participating simultaneously in the race serves to liberate latent energy not ordinarily available”.

More than a century later, social psychology explores how other people make us what we are; how unconscious, sometimes ugly, impulses make us compliant and irrational. Why, for example, do I smoke even though I know it could be fatal? How can there be such a gap between my self-image and my behaviour (this is known as cognitive dissonance)?

Why do high-level committees of supposed experts make disastrous decisions (for example, when a Nasa committee dismissed technical staff warnings that the space shuttle Challenger should not be launched, arguing that technical staff were just the kind of people to make such warnings – this is seen as a classic case of so-called “groupthink”)?

Why do we unconsciously obey others even when this undermines our self-images (this is known as social influence)? What makes us into apathetic bystanders when we see someone attacked in the street – and what makes us have-a-go-heroes? What makes peaceful crowds turn into rioting mobs?

Group psychological studies can have disturbing ramifications. Recently, Harvard psychologist [and Situationist contributor] Mahzarin Banaji used the so-called implicit association test to demonstrate how unconscious beliefs inform our behaviour. [Sh]e concluded from [her] research that the vast majority of white, and many black respondents recognised negative words such as “angry”, “criminal” or “poor” more quickly after briefly seeing a black face than a white one. . . .

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The nature of conformism has obsessed social psychologists for decades. In 1951, psychologist Solomon Asch did an experiment in which volunteers were asked to judge the correct length of a line by comparing it with three sample lines. The experiment was set up so that there was an obviously correct answer. But Asch had riddled a group with a majority of stooges who deliberately chose the wrong answer. The pressure of the majority told on Asch’s volunteers. He found that 74% conformed with the wrong answer at least once, and 32% did so all the time.

What impulses were behind such conformism? Social psychologists have long considered that we construct our identities on the basis of others’ attitudes towards us. Erving Goffman, in The Presentation of Self in Everyday Life (1959), analysed social encounters as if each person was engaged in a dramatic performance, and suggested that each such actor was a creation of its audience.

Through such performances of self we internalise role expectations and gain positive self-esteem. We cast other individuals and groups in certain roles. Such behaviour may make some of us unconscious racists, but it also lubricates the wheels of social life.

French psychologist Serge Moscovici developed what is called social representation theory, arguing that shared beliefs and explanations held by a group of society help people to communicate effectively with one another. He explored the notion of anchoring, whereby new ideas or events in social life are given comforting redescriptions (or social representations). For example, a group of protesters against a motorway might be described demeaningly by the road lobby as a “rent-a-mob,” while the protesters themselves might anchor themselves more falteringly as “eco-warriors”.

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Social psychologists have also been long-obsessed by the psychology of crowds. In 1895, French social psychologist Gustave le Bon described crowds as mobs in which individuals lost their personal consciences. His book, The Crowd: A Study of the Popular Mind, influenced Hitler and led many later psychologists to take a dim view of crowds.

After the war, German critical theorist Theodor Adorno wrote of the destructive nature of “group psychology.” Even as late as 1969, Stanford psychologist [and Situationist contributor] Philip Zimbardo argued that a process of deindividuation makes participants in crowds less rational.

Most recent crowd psychology has not been content to brand crowds necessarily irrational. Instead, it has divided into contagion theory (whereby crowds cause people to act in a certain way), convergence theory (where crowds amount to a convergence of already like-minded individuals) and emergent norm theory (where crowd behaviour reflects the desires of participants, but it is also guided by norms that emerge as the situation unfolds). . . .

In the age of MySpace, Facebook and online dating, group psychologists are now trying to find out what goes on when we present ourselves to the world online, how we are judged for doing so and how groups are formed online. Other social psychology touches on such voguish areas of research as social physics (which contends that physical laws might explain group behaviour) and neuroeconomics (which looks at the role of the brain when we evaluate decisions and interact with each other), but the age-old concerns remain part of our zeitgeist.

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You can read the entire article here.   For a sample of Situationist posts examining the interaction of individuals and groups, see “The Situational Benefits of Outsiders,” “Racism Meets Groupism and Teamism,” “Racism Meets Groupism and Teamism,” “‘Us’ and ‘Them,’” “The Maverickiness Paradox,” “Four Failures of Deliberating Groups – Abstract,” “Team-Interested Decision Making,” “History of Groupthink,” “Some (Interior) Situational Sources War – Part I,” and “March Madness,” To read some of the previous Situationist posts describing or discussing classic experiments from soical psychology and related fields, click here.

The Stereotype Tax

The last issue of The Economist includes an interesting article, titled “The Price of Prejudice,” summarizing IAT research and two other studies employing conjoint analysis to measure the difference between what we would do as compared to what we would say we would do.  Here’s an excerpt.

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Nobody likes to admit an uncomfortable truth about himself, especially when charged issues such as race, sex, age and even supersized waistlines come into play. That makes the task of the behavioural scientist a difficult one. Not only may participants in a study be lying to those running a test, but they may also, fundamentally, be lying to themselves.

Prising the lid off human assumptions and hidden biases thus requires clever tools. One of the most widely deployed, known as the implicit-association test, measures how quickly people associate words describing facial characteristics with different types of faces that display those characteristics. When such characteristics are favourable—“laughter” or “joy”, for example—it often takes someone longer to match them with faces that they may, unconsciously, view unfavourably (old, if the participant is young, or non-white if he is white). This procedure thus picks up biases that the participants say they are not aware of having.

Whether these small differences in what are essentially artificial tasks really reflect day-to-day actions and choices was, until recently, untested. But that has changed. In a paper to be published next month in Social Cognition, a group of researchers led by Eugene Caruso of the University of Chicago report their use of a technique called conjoint analysis, which they have adopted from the field of market research and adapted to study implicit biases in more realistic situations.

Conjoint analysis, they think, lets them quantify what has been dubbed the “stereotype tax”—the price that the person doing the stereotyping pays for his preconceived notions. In two studies, they turn their new tool loose on questions of the perception of weight and sex.

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Conjoint analysis asks participants to evaluate a series of products that vary in several important attributes, such as televisions of various screen sizes, brands and prices. By varying these attributes in a systematic way market researchers can measure with reasonable precision how much each trait is worth. They can then calculate how big a premium people are willing to pay in one attribute (price) to get what they want in another (a larger screen).

In their first study, Dr Caruso and his team recruited 101 students and asked them to imagine they were taking part in a team trivia game with a cash prize. Each student was presented with profiles of potential team-mates and asked to rate them on their desirability.

The putative team-mates varied in several ways. Three of these were meant to correlate with success at trivia: educational level, IQ and previous experience with the game. In addition, each profile had a photo which showed whether the team-mate was slim or fat. After rating the profiles, the participants were asked to say how important they thought each attribute was in their decisions.

Not surprisingly, they reported that weight was the least important factor in their choice. However, their actual decisions revealed that no other attribute counted more heavily. In fact, they were willing to sacrifice quite a bit to have a thin team-mate. They would trade 11 IQ points—about 50% of the range of IQs available—for a colleague who was suitably slender.

In a second study the team asked another group, this time of students who were about to graduate, to consider hypothetical job opportunities at consulting firms. The positions varied in starting salary, location, holiday time and the sex of the potential boss.

When it came to salary, location and holiday, the students’ decisions matched their stated preferences. However, the boss’s sex turned out to be far more important than they said it was (this was true whether a student was male or female). In effect, they were willing to pay a 22% tax on their starting salary to have a male boss.

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To read the entire article, including discussion of another fascinating experiment involving race, click here.

To read a related Situationist posts, see “Mispredicting Our Reactions to Racism,” “The Situation of Body Image,” “Prejudice Against the Obese and Some of its Situational Sources,” “Hey Dove! Talk to YOUR parent!,” “Shades of Fairness and the Marketing of Prejudice,” “Fitting in and Sizing up,” “The Cognitive Costs of Interracial Interactions,” “Guilt and Racial Prejudice,” “Perceptions of Racial Divide,” and “Banaji & Greenwald on Edge – Part IV.”

Implicit Associations – Podcast

From the Science Podcast: Robert Frederick interviews Bertram Gawronski on how automatic mental associations predict future choices.

“Bertram Gawronski and colleagues report that they could predict the decision of 70% of those who indicated they were undecided about a controversial political issue. The prediction was based on testing people’s automatic mental associations, or how quickly people responded to and correctly categorized images and words. The results indicate that decision makers often already have made up their mind at an unconscious level, even when they consciously report they are still undecided.”

Open the file here or link to Science Podcast page here.

Mahzarin Banaji’s Situation

From the Harvard Crimson, by Weiqi Zhang, here is a fascinating article titled “A Chance Road to Harvard” about the remarkable journey of Situationist contributor Mahzarin Banaji.

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Fifteen-year-old Mahzarin R. Banaji says she dreamed of living the adventurous life of a secretary upon graduating from high school because she believed that further academic pursuit was useless and was thirsting for an independent life away from her home in Secunderabad, India.

But a little less than a decade later—after a series of self-described “fortuitous” events—Banaji found herself a student at Ohio State University, studying for a Ph.D. in social psychology. And in 2002 she became a Harvard professor at the invitation of University President Drew G. Faust, then-dean of the newly-founded Radcliffe Institute of Advanced Studies.

Today Banaji is the Richard Clarke Cabot Professor of Social Ethics in the psychology department, where she has pioneered the study of unconscious prejudice. “Professor Banaji is one of the most celebrated, most cited, and most influential social psychologists of her generation for good reason—her work on unconscious bias has revolutionized how we think about the topic,” Psychology professor Daniel T. Gilbert wrote in an e-mail.

In his best-selling book “Blink,” Malcolm Gladwell devoted 12 pages to Banaji’s research on the Implicit Association Test, a methodology created by Banaji’s dissertation advisor, Anthony G. Greenwald, in 1994. The test is designed to measure the strength of automatic association and is an important tool in social psychology today.

“Individuals are created and shaped by social circumstances far more than they or their observers are able to recognize,” Banaji wrote in an unpublished biography for the Guggenheim Foundation. “Mainly in retrospect, I see my career as a textbook case of how fortuitous circumstances and responsive bystanders eased the path for my growth.”

THE ROAD TO THE IVORY TOWER

After a few late-night talks with her mother, who never attended college herself, Banaji suspended her plans to enter the typing pool and agreed to give college a try for one semester, after which the two agreed that Banaji would be free to choose her own path. That one semester proved to be worthwhile for Banaji. Initially attracted to Nizam College for its co-educational system and proximity to the largest cricket stadium in Hyderabad, Banaji says she found the cosmopolitan social and academic environment a liberating experience. Her ambition of becoming a secretary aborted, she went on to pursue an M.Phil/Ph.D. in general psychology at Jawaharlal Nehru University in New Delhi.

Mind-opening as JNU would prove to be, Banaji never finished her study there. “There are few occasions in one’s life when a course of action presents itself with such clarity that there is nothing to do but pursue it,” she wrote in her Guggenheim biography. While she was on the train home from New Delhi for the holidays, Banaji purchased five volumes of the Handbook of Social Psychology edited by Lindzey and Aronson, for five dollars, lured not so much by the books’ content as by their low price. By the time she arrived home 24 hours later, she had already devoured an entire volume. She says the combination of a focus on social process with an experimental approach presented by the book particularly appealed to her.

A year later, Banaji boarded a plane to Columbus, Ohio, leaving the psychophysics and Marxist sociology she had been studying in India behind. After receiving her Ph.D. from Ohio State in social psychology, Banaji traveled around the country as research assistant, instructor, and post-doc fellow in several different institutes, before she finally settled at Yale to study unconscious bias.

When the Radcliffe Institute of Advanced Studies was founded in 2001, Banaji accepted the invitation to teach at Harvard, becoming a professor in the Department of Psychology and the Carol K. Pforzheimer Professor at Radcliffe.

‘THE MADONNA OF OUR FIELD’

Reflecting on her unusual career path, Banaji says she is reluctant to use her own life as a model for students. But she says she is a strong advocate for women in science careers.

Her implicit association experiments have shown that even female scientists can unconsciously associate men with terms like “astronomy” and “chemistry” and women with “music” and “history.”

Former University President Lawrence H. Summers once quoted Banaji on unconscious prejudice against women in science, recommending people to visit the Web site for the Implicit Association Test, which is maintained by Banaji and her former student Brian A. Nosek, now a psychology professor at the University of Virginia. Just months before, Summers had made his now-infamous comments that attributed the dearth of women in top science careers to “issues of intrinsic aptitude.”

Knowing this prejudice well, Banaji says she always goes out of her way to support aspiring female students in science.

“For younger women whose identity as women in science is not fully formed, I need to keep an eye out,” Banaji says. “If somebody like that comes along and asks, ‘I wanna give up mathematics for social studies,’ [I would suggest to her] ‘well, hold on, maybe you should go. But maybe you shouldn’t.’”

“As a young woman, I cannot tell you how she has influenced the generations after her,” Dana R. Carney, a former post-doctoral student of Banaji’s, wrote in an e-mail. “She is like the Madonna of our field: masculine, feminine, fierce, warm, irreverent, creative, inspiring.” Carney is now an assistant professor at Columbia University’s Graduate School of Business. She says she still remembers listening to Banaji’s “mesmerizing” speech as a first year graduate student, five years before she became her post-doc student. “I remember going up to her…and I shook her hand, and I told her that it’s so rare as a young woman you’ve got to model yourself after those people that sort of defy gender stereotype,” Carney recalls. “She is just a scientist. She is not a woman. She is not a man. She is just so inspiring.”

CRITICAL, BUT CARING

In 2006, Banaji journeyed to Philadelphia to pay tribute to her Ph.D. adviser Greenwald, who was receiving the Distinguished Scientist Award, a prestigious prize given by the Society of Experimental Social Psychology. Banaji delivered an address recounting her memory of Greenwald. “It made the entire room of five or six hundred people cry,” Carney says, referring to Banaji’s speech. “It was just mind blowing.”

“Tony Greenwald changed my life,” Banaji says. “He didn’t care what I knew, or how little I knew, or how poor a writer I was…he just wouldn’t let go. If I wrote a draft and I gave it to him he would mark it again, but the 13th draft he would still mark it. Every draft, I saved them all.”

Banaji attributes her pedagogical skill in part to Greenwald, saying that he has had an important impact on how she interacts with her students. Greenwald, however, says he disagrees.

“As a teacher, she has abilities that I barely comprehend,” he wrote in an e-mail. “I have no idea how she acquired her skill, other than to be sure that she didn’t get it from me.”

Greenwald does say that both he and Banaji require their advisees to learn how to thrive while receiving more criticism than praise, as they share the belief that perseverance in the face of criticism is a trait shared by almost all successful scientists.

“She just really had a unique combination of being incredibly rigorous and demanding, but at the same time you knew she supported you and that her heart was with you,” said Curtis D. Hardin, Banaji’s first Ph.D. student and now a professor at Brooklyn College. “For one thing, any paper, from paper in the class to thesis, was met with just incredibly detailed line by line comments, suggestions, questions…this is probably the biggest sign of love because it takes a lot to do that.”

Hardin adds that Banaji and her husband always open their home to graduate students. “She taught me how to cook simple Indian dishes, and we watched elections together. Their company was just so good,” Hardin says. “They knew what it was like to be a starting graduate student.”

Banaji is deeply involved in the undergraduate experience at Harvard, too. As Head Tutor for the Psychology Department, she leads a committee on undergraduate instruction and oversees all students writing theses. She also has three freshman advisees.

“Even though she’s my academic advisor she would talk to me like my old-time friend, and she really cares about how I am doing and my emotional state,” says Nam Hee Kim ’12, one of her advisees.

Looking back, Banaji says that her teaching experience in India at the age of five might have shaped how she communicates with students today. After Banaji and her sister were born, their mother, a school teacher, became unhappy that she had to stay at home and could not teach anymore. She had a carpenter make three small tables and very little chairs, and opened a school in the house.

“I would be home, so I had to deal with all the kids. So my mother would say, ‘you are five years old, you teach this four-year old how to write letters. Every year I was teaching somebody one year younger than I,” Banaji says. “By the time I was eight, I had three years of teaching experience.”

“Now teaching graduate students, you know, is my life,” she adds.

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For a closely related Situationist post, see “The Situation of a Situationist – Mahzarin Banaji.”  Go to Project Implicit here.  Take the Policy IAT here.

To review all of the previous Situationist posts discussing implicit associations click on the “Implicit Associations” category in the right margin, or, for a list of such posts, click here.

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