“Litigating Implicit Bias,” an article by EJS President Eva Paterson, appears in the latest issue of Poverty & Race, a bi-monthly newsletter by the Poverty & Race Research Action Council. PRRAC is an organization that connects advocates with social scientists working on race and poverty issues and promotes a research-based advocacy strategy on structural inequality issues.
The article outlines the urgent need for our courts to depart from an archaic disposition towards racism, which requires plaintiffs alleging discrimination to prove the intent to discriminate – not just that discrimination actually occurred. This standard of jurisprudence ignores the fact that racial bias in modern society is often not overt.
“Requiring proof of discriminatory intent essentially closes the courthouse doors to victims of racial bias,” writes Eva. “If there has ever been a law worth the struggle to change in modern society, this is it.” The article provides a wide-ranging overview of what led to the “Intent Standard” set by Washington v. Davis, and what we can do to overturn that decision and restore our constitutional safeguards against discrimination.
In many ways, the article is a manifesto of our work at the Equal Justice Society. Fabián Rentería, Abby Bar-Lev, Jihan Spearman and I all worked with Eva on the article.
The publication of this article fittingly coincides with the beginning of my time at EJS and the beginning of the next phase of our litigation and advocacy strategy. Before starting at EJS, I had the opportunity to visit Montgomery, Ala., for a meeting with death penalty litigators and activists.
Being in Montgomery was an eye-opening experience. We learned about prosecutors and judges (and even defense counsel) who did not want to address issues of race, or people who were never afforded the opportunity to serve on juries in their hometowns because of their race.
We talked about the disproportionate impact of the criminal justice system on people of color, both in terms of facing the death penalty and in charging and sentencing for crimes. We also explored downtown Montgomery and saw where slaves were led down Commerce Street (though there are no markers to commemorate this, or to show the auction block where they were taken).
On the way home from the trip, I was able to reflect on my time in Alabama, which had reinforced for me the fact that racism is alive and well, in both explicit and implicit forms.
But while it was discouraging to realize there is so much to be done to raise society’s consciousness about racism, it was also inspiring to stand in the spot where Rosa Parks stood as she boarded the bus, or to see the church where Dr. Martin Luther King, Jr., preached and where the Montgomery bus boycott was planned, and to know that the work EJS and our allies do to fight racism in all forms is crucial, and to keep hope alive that things will change.
Allison Elgart joined the Equal Justice Society as Supervising Attorney on October 4, 2011. She was formerly an associate in the San Francisco office of Lieff Cabraser Heimann & Bernstein, LLP, and previously clerked for the Hon. Robert P. Patterson, Jr., United States District Court, Southern District of New York. Allison is a 2005 graduate of Harvard Law School, where she was the Editor-in-Chief of the Harvard Civil Rights-Civil Liberties Law Review and worked as a student attorney at the Harvard Legal Aid Bureau.