Reducing and Disrupting Automatic and Biased Actions

1. Reducing and Disrupting Automatic and Biased Actions Sue Bryant, CUNY School of Law Jean Koh Peters, Yale Law School Disproportionate Minority Representation in 2014: Continuing the Conversation March 14, 2014 (with revisions for website in 2018)

2. Goals • Develop Greater Accuracy In Decision Making and Advocacy by Controlling Implicit Biases and Ethnocentric Thinking • Identify Concrete Ways to Improve Both Being Fair And Also Appearing Fair

3. Road Map • General Principles and Concepts – implicit bias, ethnocentric thinking, micro-aggression, procedural justice. • Three Techniques designed to disrupt automatic thinking. • Specific Issues: Terminology, Microaggression, Counter narratives

4. Three Concepts Implicit Bias Microagressions Ethnocentricism

5. Three Effects • Inaccurate Findings • Viewed as Unfair • Compliance Decreases

6. The Three Dynamics of the Habits • NONJUDGMENT of self & other --focus on fact, delay judgment • ISOMORPHIC ATTRIBUTION --seek the actor/speaker’s meaning • DAILY HABIT AND LEARNABLE SKILL --improve with steady practice

7. The Three Principles • All Lawyering/Judging is Cross-Cultural • Remain Present with This Client/Litigant Ever Respecting Her Dignity, Voice, and Story • Know Oneself as a Cultural Being

8. The Three Techniques For Disrupting Automatic Processing and Refining Decision Making • Doubting and Believing • Parallel Universe Thinking • Except When/Especially When

9. 3 Techniques For Disrupting Automatic Processing and Refining Decision Making • Doubting and Believing --Measuring Actual Doubt and Belief on a Scale • At Rest • In Flux --Methodological Doubt and Belief • Parallel Universe Thinking • Except When/Especially When • Sources: Peter Elbow; Mark Weisberg and Jean Koh Peters; Sue Bryant and Jean Koh Peters

10. I. Doubting and Believing Locating yourself on the Spectrum Tracking your Actual Doubt and Belief: The Lineup Methodological Doubt, Methodological Belief

11. A. The Doubting/Believing Scale Pure Belief Pure Doubt 100__________________________________0

12. Real-Life Experiences of Pure Doubt and Pure Belief

13. Alexandra would be safe at home with her parents. Draw the Doubting and Believing Scale on your notes. Identify a persona—yourself, another person you know, or another realistic, noncaricatured person—who you will portray as the judge in this situation. After reading the first page only of the fact pattern, place your persona on the scale, by marking an X0 on the scale.

14. A. The Doubting/Believing Scale Pure Belief Pure Doubt 100__________________________________0

15. B. Doubting/Believing Spectrum:Tracking Actual Doubt and Belief in Flux Source: Sue Bryant and Jean Koh Peters

16. Must Alexa be removed from her home to ensure her safety? Today’s date is October 19, 2018.

17. Must Alexa be removed from her home to ensure her safety? You are a judge in the Superior Court for Juvenile Matters in Hartford, CT. On today’s docket is a contested hearing regarding a 1-month old baby, Alexa Davis, whom the Department of Children and Families (DCF) took into custody two weeks ago and obtained an ex parte Order of Temporary Custody (OTC) from one of the other judges in your courthouse. A week ago, the parents, Alexander Davis and Tonya Lewis were assigned separate attorneys who each demanded the current hearing to request Alexa’s immediate return to their care.

18. Must Alexa be removed from her home to ensure her safety? DCF’s opening statement: In light of the parents’ young ages, their history of substance abuse, their history of domestic violence, the mother’s suicidal ideation, the father’s limited mental capacities, their residence with a maternal aunt who has an extensive history with DCF, their residence in a home where many adults are seen coming and going, lack of other appropriate family resources, and the mother’s failure to comply with in-home services, the child would be in imminent danger from her surroundings if left with her parents.

19. Must Alexa be removed from her home to ensure her safety? • Alexa was born on September 26, 2018, after a normal labor, and was described by nursing staff as a healthy, robust baby. • Until a week ago, Alexa lived with her mother, Tonya Lewis (age 19), and her father, Alexander Davis (age 19), at the home of her maternal aunt, Juanita Rivera, in downtown Hartford. • Ms. Rivera supports the family and works as a certified nurse assistant at a nursing home in downtown Hartford. Alexa’s parents, her maternal great-aunt, and her relatives are all African-American. .

20. Must Alexa be removed from her home to ensure her safety? • Both parents use recreational marijuana and have tested positive for its use. Ms. Lewis stated that she used marijuana twice a month. Mr. Davis said he used it once a week. • Shortly before the birth, Ms. Lewis appeared to the hospital staff to be very depressed and behaving erratically, and she stated that she “didn’t know if life was worth living.” She said that she had felt this way twice before in the past year. A nurse noted in the hospital files that she appeared to show signs of possible manic depression. Ms. Lewis was provided a referral to a local mental health provider for an appointment a week later, but she did not keep the appointment.

21. Must Alexa be removed from her home to ensure her safety? • Immediately following Alexa’s birth, baby Alexa thrived during their brief hospital stay. Ms. Lewis seemed in good spirits. Mr. Davis was present at the hospital and was reported to be excited about Alexa’s birth. • On September 28, 2018, Ms. Lewis, Mr. Davis, and Alexa went home to live at Ms. Rivera’s home in downtown Hartford. Ms. Rivera’s three adult children, in addition to two of Ms. Lewis’s younger siblings, live there as well. • Ms. Rivera took care of Ms. Lewis and her siblings when they were younger. Ms. Rivera had past open cases with DCF for more than five years, on neglect grounds. At one point, the children she cared for stayed in foster care for several months. DCF closed its neglect case against Ms. Rivera in early 2007.

22. Must Alexa be removed from her home to ensure her safety? • At DCF’s insistence, a family preservation service called IFP was assigned to Alexa’s family. They visited the house three times per week, to discuss parenting and substance abuse issues with Ms. Lewis.  • A DCF worker reported that, on first meeting, Mr. Davis seemed “limited.” He has collected SSI since birth. He graduated from high school in Virginia last year, and moved to Hartford to live with extended family. He has known Ms. Lewis for about a year. During Alexa’s stay at home, DCF workers noted that he often cared for the baby; one stated that Mr. Davis appeared to have “no limitations.”

23. Must Alexa be removed from her home to ensure her safety? • On October 6, 2018, the IFP caseworker reported to DCF staff that the parents had had a “very loud” argument. Ms. Lewis ordered Mr. Davis to leave the house and he left that same day. He returned to Ms. Rivera’s residence the next day. • On October 8, 2018, Ms. Lewis went to the Emergency Room, telling the reception desk that she felt very depressed and was thinking of hurting herself. Alexandra remained at home with her great-aunt and father. The ER gave Ms. Lewis an appointment for a community psychiatric clinic on October 9, 2018.

24. Must Alexa be removed from her home to ensure her safety? • On October 6, 2018, the IFP caseworker reported to DCF staff The IFP caseworkers reported to DCF that Ms. Lewis was generally cooperative. They reported that Alexandra was happy and appeared to be well-cared for. They also noted that there were many adults, family and non-relatives, coming in and out of the home at all hours of the day. On at least one occasion, one worker observed “three or more unidentified African American males loitering in a bedroom.” • On October 15, 2018, the IFP worker asked Ms. Rivera if marijuana was being used in the house. Ms. Rivera asked the worker to leave and not to return.

25. Must Alexa be removed from her home to ensure her safety? • On October 16, 2018, the IFP worker asked Ms. Lewis over the phone if she would work with them in places other than Ms. Rivera’s home. Ms. Lewis said that she would think about it, and meet the IFP worker in-person tomorrow to discuss. • On October 17, 2018, Ms. Lewis did not appear at the pre-arranged time and place.

26. Must Alexa be removed from her home to ensure her safety? • On October 18, 2018, DCF took Alexa into its custody on a 96-hour hold. Then, three days later, DCF requested ex parte and was granted an Order of Temporary Custody for Alexa.

27. C. Methodological Doubt and Belief KEY: undertake pure doubt and pure belief: • consciously • systematically • explicitly • with discipline Source: Methodological Doubting and Believing: Contraries in Inquiry, in Peter Elbow, EMBRACING CONTRARIES: EXPLORATIONS IN LEARNING AND TEACHING 258(1986)

28. Paired Exercise: Methodological Belief (RIGHT SIDE OF ROOM) Consider the evidence and • believe everything, • no matter how unlikely or repellent it might seem • to find virtues or strengths we might otherwise miss.

29. Paired Exercise: Methodological Doubt(LEFT SIDE OF ROOM) Consider the evidence and • doubt everything, • no matter how compelling it might seem • to find flaws or contradictions we might otherwise miss.

30. Alexandra would be safe at home with her parents.

31. 4 Observations about Methodological Doubt and Belief • Disciplines you to be wary of acting BEFORE you have subjected your action plan to both methodological doubt and belief. • Offers those who naturally gravitate to one pole or the other a way to check themselves. • Creates a practice for deeply exploring closely, passionately held views. • Balances out the widely held misconception that rigorous thinking requires doubt alone.

32. 3 Techniques For Disrupting Automatic Processing and Refining Decision Making • Doubting and Believing Scale/ Methodological Doubt and Belief • Parallel Universe Thinking • Except When/Especially When

33. II. Parallel Universe Thinking: Generate multiple explanations for the same facts GOALS: • Suspending conclusions & judgments • Enlarging & refracting understandings of how the world works • Suggesting inquiries for future understanding “Entering the cultural imagination of the other” --Raymonde Carroll “Down the rabbit hole” --Lewis Carroll Source: Bryant and Peters, Five Habits of Cross Cultural Lawyering

34. Parallel Universe Thinking Brainstorm as many alternative explanations as you can think of explaining 1)“3 unidentified black males in a bedroom” AND/OR 2) Ms Lewis Did Not Appear at the Arranged Time and Place

35. When in your daily work would Parallel Universe Thinking be useful?

36. 3 Techniques For Disrupting Automatic Processing and Refining Decision Making • Doubting and Believing --Measuring Actual Doubt and Belief on a Scale • At Rest • In Flux --Methodological Doubt and Belief • Parallel Universe Thinking • Except When/Especially When • Sources: Peter Elbow; Mark Weisberg and Jean Koh Peters; Sue Bryant and Jean Koh Peters

37. III. Except When/Especially When Goal: identify, articulate and test generalizations to explore their validity How to do it: Test a generalization in three stages: 1) Articulate your generalization precisely; 2) Add “except when” and brainstorm as many different circumstances as you can; 3) Add “especially when” and brainstorm as many different circumstances as you can. Source: Binder and Bergman, Fact Investigation; Adapted by Muneer Ahmad, Sue Bryant and Jean Koh Peters

38. Applying “Except When/Especially When” to Fact Pattern Generalization: Teenagers these days cannot raise a child safely Evidence: Parents are under 20 and have a new baby Conclusion: Baby is at imminent risk to safety Especially When… Except When…

39. GENERALIZATION: Teenagers these days cannot raise a child safely ESPECIALLY WHEN… (RIGHT SIDE OF ROOM) EXCEPT WHEN: (LEFT SIDE OF ROOM) 1. They have no family support. 1. They are complying with excellent services.

40. Benefits of Except When/Especially When thinking • “Except When” reveals exceptions and limits to the generalization: • If few exceptions are apparent, the generalization is likely accurate. • The more reasonable exceptions, the weaker the generalization • Consider narrowing your generalization. • “Especially When” analysis can narrow, refine and strengthen an overbroad generalization. It can also show what evidence would support such a finding.

41. Final Questions about the Three Techniques • Doubting and Believing Scale • Measuring Actual Doubt and Belief on a Scale • At Rest • In Flux • Methodological Doubt and Belief • Parallel Universe Thinking • Except When/Especially When

42. Normalizing the Question “How does Race Matter?” If we accept that Implicit Bias and Ethnocentrism exists, we need to be open to asking how are these processes working in a specific case?

43. How Can We Talk About Race in the context of this fact pattern? In the context of a case on trial? Left Side In a settlement conference? Middle In the ACS office? Right Side

44. Growing The Conversation: Three Principles PRINCIPLE ONE: Embrace Tension and Difficulty as an Inevitable and Constructive Part of Learning PRINCIPLE TWO: Employ Nonjudgment & Isomorphic Attribution, Giving Everyone an Opportunity to be Heard. Principle Three: Choose Direction and Amplify The Voices That Most Further Racial Justice; Take Responsibility For Your Choice.

45. Techniques: an Example Doubt and Believe Think of Parallel Universes Try “Especially When/ Except When” Restate Each Other’s Positions to Each Other’s Satisfaction Take Time Out to Write Ask a Clear Question Reflect Agree to Discuss Some More

46. National Court Approaches For Addressing Implicit Bias Consciously Acknowledge Group & Individual Differences — Habit 1 Routinely Check Thought Processes —Habits 3 & 2 Gather Data & Focus on Environment —Habit 5 Avoid Scripts and Promote Communication — Habit 4

47. #1 Consciously Acknowledge Group & Individual Differences Color-blind Approach Does Not Eliminate Bias Acknowledge Differences Individualize Those Within a Group Habit One

48. Individualize Litigants What Individual Characteristics Do We Know About the Young Women in the Hypo? What Approaches Do You Use to Remind Yourself that the Person in Front of You is Not the Last Person You Saw. Or the “typical” xxx

49. # 2 Routinely Check Thought Processes Use Guidelines, Criteria Explore Criteria For Cultural & Racial Bias Take Perspective of Another Note-taking, Checklists, Writing Down Reasons For Decision

50. # 2 Routinely Check Thought Processes Imagine The Person Is from a Non-stigmatized Group Think Counter – Stereotypic Thoughts Be Open to Broadening Your Understanding of the Litigants’s World Habits 2 and 3