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Seeing Through Colorblindness: Implicit Bias and the Law

56 Pages Posted: 1 Jul 2010 Last revised: 5 Jan 2011

Jerry Kang

University of California, Los Angeles (UCLA) - School of Law

Kristin Lane

Bard College Program in Psychology

Date Written: June 30, 2010

Abstract

Once upon a time, the central civil rights questions were indisputably normative. What did “equal justice under law” require? Did it, for example, permit segregation, or was separate never equal? This is no longer the case. Today, the central civil rights questions of our time turn also on the underlying empirics. In a post-civil rights era, in what some people exuberantly embrace as post-racial, many assume that we already live in a colorblind society. Is this in fact the case? Recent findings about implicit bias from mind scientists sharply suggest other-wise. This Article summarizes the empirical evidence that rejects facile claims of perceptual, cognitive, and behavioral colorblindness. It then calls on the law to take a “behaviorally realist” account of these findings, and maps systematically how it might do so in sensible, non-hysterical, and evidence-based ways. Recognizing that this call may be politically naive, the Article examines and answers three objections, sounding in “junk science” backlash, “hard-wired” resignation, and “rational” justification.

Keywords: implicit bias, behavioral realism, implicit association test, IAT, backlash, colorblindness, social cognition, discrimination, affirmative action, profiling, determinism

Suggested Citation

Kang, Jerry and Lane, Kristin, Seeing Through Colorblindness: Implicit Bias and the Law (June 30, 2010). UCLA Law Review, Vol. 58, p. 465, 2010; UCLA School of Law Research Paper No. 10-22. Available at SSRN: https://ssrn.com/abstract=1633071

Jerry Kang (Contact Author)

University of California, Los Angeles (UCLA) - School of Law ( email )

385 Charles E. Young Dr. East
Room 1242
Los Angeles, CA 90095-1476
United States
310-206-7298 (Phone)
310-206-7010 (Fax)

Kristin Lane

Bard College Program in Psychology ( email )

Annandale-on-Hudson, NY 12504-5000
United States

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