Justice Kennedy acknowledges implicit bias

In his opinion on the Texas Department of Housing and Community Affairs vs. Inclusive Communities Project — which interpreted “disparate impact” (i.e., discrimination without intent) as a legitimate cause of discrimination — Justice Anthony Kennedy writes, “recognition of disparate-impact liability under the FHA also plays a role in uncovering discriminatory intent: It permits plaintiffs to counteract the unconscious prejudices and disguised animus that escape easy classification as disparate treatment.”  It’s terrific to see the Supreme Court seeming to recognizing implicit bias as contributing to discrimination.  Also, as this Slate article points out, it also raises interesting questions about moral responsibility and implicit bias.

3 thoughts on “Justice Kennedy acknowledges implicit bias

  1. Very interesting to see this unfold on such a grand stage. Aside from its potential practical significance, I was wondering what you thought about the philosophical or psychological credentials of this use of implicit bias. In particular, I was wondering what you thought about an inference from *implicit bias* to *intent* (with the relevant content).

    There could be weaker or stronger versions of this inference, and I’ll just list a few contrasting ways it could be elaborated. Among the strongest versions would be to classify bias as a type of intention. Among the weaker versions would be to treat bias as sufficiently often accompanied by intention, such that detecting the former could be a way to “uncover” the latter. Intermediate versions might treat intent as a component of bias, guaranteeing accompaniment without accepting the genus-species relation.

    At first blush, the strongest versions don’t seem promising because bias and intent seem to have different structures. Having a bias doesn’t seem to automatically bring with it a goal in the way that having an intent does. If that’s right, it is arguably also a problem for intermediate views. The weaker versions completely avoid that potential problem and definitely seem worth considering, but it’s ultimately an empirical question how strong the correlation is (and, of course, a separate legal question how strong it would have to be).

  2. Hi John,

    Thanks for your comment. When I first read the article, I was puzzled by the seeming inference from implicit bias to discriminatory intent. I’m not very familiar with the relevant legal concepts, but I suspect that they’re relevant here, at least in the sense in which the article makes the claim. In particular, I’d like to understand the Alito interpretation to which to article alludes.

    Psychologically speaking, I don’t think it makes much sense to take implicit bias as a sign of discriminatory intent, on either the weaker or the stronger versions of the argument, as you’ve described them. I agree with your concern about the stronger argument; biases don’t attach to goals like intentions do. Nor are (implicit) biases responsive in the right ways to reasoning, patterns of inference, etc. I’d think the same problems would obtain on the weaker version(s) too, although maybe there is a modified concept of “intent” that would change the picture.

    I think implicit biases are somewhat like person-level states, and I think there’s a substantive sense in which we’re responsible for them. But I don’t think this is because they signal or represent our intentions. Rather, I think it’s because of the way in which implicit biases reflect our character, and manifest in our behavioral dispositions, and also because they aren’t truly unconscious or outside of our control.

  3. Hi Michael,

    Thanks for your further thoughts. I really like the comparison to “person-level states” and agree that we’re responsible for them (or, at least, for their consequences) without “intent” (in anything like it’s ordinary sense) necessarily being involved.

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