I write to provide critical comment on Emily Connor and Bianca Black’s article, “The what, why and how of addressing workplace implicit bias,” (Indiana Lawyer, March 18). The authors posit that implicit bias is: (1) a scientific fact affecting humanity’s biologically “ingrained prejudgments” on which our brains supposedly “rely” in making choices; (2) an impediment to the delivery of diversity in the workplace; and (3) from a social justice standpoint, a real problem with adverse financial consequences. As solutions for this presumptive state of affairs, the authors propose employee “training” and post-training “messaging” to implement unstated “principles” to effect undisclosed “real change” in employer’s systems of “hiring, evaluations, promotions and discipline.”
First of all, the authors cite only the “Implicit Association Test” (IAT) to support their conclusions. The IAT is a response time study, which judges a participant’s bias through millisecond measurements of the time differential in associations of “good” and “bad” words with the depictions of black and white faces. It is too quirky to describe further in this context. A reliable description of the IAT, its subsequent acceptance among academia and Democratic politicians and its connection to the school of “behavioral realism,” as well as an in-depth critique of the IAT, can be found in Heather Mac Donald’s New York Times bestseller, “The Diversity Delusion.” The test and its conclusions have been called into question in peer-reviewed studies. While it is evident from the IAT and from common sense that we all have our preferences, neither the IAT nor any other study offers any basis for the conclusion that those preferences are predictive of discriminatory conduct.
Before Regents of the University of California v. Bakke, 438 U.S. 265 (1978), we had racial preferences based upon racial quotas. Thereafter, various indirect preference programs have been tried, including the current dogma of “diversity, inclusion and wellness.” The laudable purpose of all these suspect efforts was to achieve equality of results for blacks and, later, other minorities. Unfortunately, and for reasons more complex than we as a society are willing to acknowledge, inequality of results in academics and achievement persist. The “implicit bias” notion is yet another blind alley, leading nowhere. Its ineluctable conclusion is that all hiring decisions are illegitimate. But we can all take solace from the “Flynn effect,” the underlying theory of which is that mankind is experiencing a multi-generational improvement in its collective and individual intelligences, which eventually will level the playing field among all.
As stated by Anthony Kronman, Yale University’s Sterling professor of law, in a Wall Street Journal article published last summer, diversity “is a dogma repeated with uniform piety in the official pronouncements of nearly every college and university.” At Yale, “a large bureaucracy exists to insure that … diversity is rigorously enforced – in student admissions, faculty hiring and curricular design.” The same is true across the board in all businesses, professions and government agencies. See “General counsel call law firms to action on diversity,” (Indiana Lawyer, May 15, 2019). To maintain that blacks and other minorities face implicit bias against them ignores the juggernaut of the explicit biases in their favor based upon all ubiquitous affirmative action programs.
Indoctrination of and “messaging” to “straight white men,” as suggested by the authors, as well as by the author of “DTCI: Diversity in firm life – Make room for me and let me eat” in a January Indiana Lawyer article, will never provide an answer. It is ironic that, as a young, white associate attorney and later partner of the law firm of Bamberger & Feibleman in the 1970s, one of my mentors was Harvard-educated Willard “Mike” Ransom. I benefited greatly from the now-deceased Mr. Ransom’s experience, legal skills and philosophical wisdom. I required no indoctrination from him, and he provided none to me. Mr. Ransom’s only concern was to make me into a competent lawyer and a better man. For those who might not know, Mr. Ransom was black.
Thomas Norbert Eckerle