EJS 20th Anniversary – Reflecting on 2008 and Educating the Judiciary on Implicit Bias

2020 is the 20th anniversary of the Equal Justice Society. Every week leading up to our 20th anniversary celebration on September 17, we will highlight one year in our history. This week we remember 2008 and in particular a pivotal law review article we published that year.

Among our many activities and initiatives in 2008:

EJS organized the convening, “Progressive Litigation Strategies” at Duke University in partnership with Erwin Chemerinsky to discuss the intent doctrine and strategies for civil rights enforcement in the U.S. Department of Justice.

Sara Jackson, then an EJS staff attorney, helped coordinate national opposition to Ward Connerly’s “civil rights initiatives” in Arizona, Colorado, Missouri, Ohio and Nebraska.

We also organized the conference “Building a Win-Win Immigration Platform & Creating Multiracial Alliances” to discuss the relationship between immigrants’ rights struggles and those of native-born communities of color.

Another critical highlight of 2008 was the publication of “The Id, the Ego, and Equal Protection in the 21st Century: Building upon Charles Lawrence’s Vision to Mount a Contemporary Challenge to the Intent Doctrine” in the May 2008 issue of the Connecticut Law Review (40 Conn. L. Rev. 1175).

The article – authored by Eva Paterson, Kimberly Thomas Rapp, and Sara Jackson – in part explained how racism can be the result of implicit bias, the unintentional function of our minds rather than a moral decision.

The Washington State Supreme Court in 2013 cited this article in its August 1, 2013, decision in Washington v. Saintcalle, in which the Court asserted that the Batson procedures for challenging race discrimination in jury selection were not “robust enough,” since “a growing body of evidence shows that racial discrimination remains rampant in jury selection.”

The Batson procedures come from Batson v. Kentucky, a U.S. Supreme Court case that established what evidence is required for a trial judge to be able to draw an inference that discrimination has occurred in jury selection procedures.

This citation of our law review article in a state Supreme Court opinion marked another important step in our efforts to educate the judiciary about implicit bias. Courts began to acknowledge the significant and harmful role implicit bias plays in our criminal justice system.

While the Court did not create a new standard because the issue was not raised, briefed, or argued by the parties, the court did assert that “racism is often unintentional, institutional, or unconscious” and called for stronger Batson procedures to recognize these more prevalent forms of discrimination.

This affirmed the work EJS is doing to raise awareness and understanding about implicit bias, and we advocated for more attorneys raising these issues in their cases so the courts will ultimately recognize the need for anti-discrimination laws that account for implicit and structural biases.

We welcome sponsorships to our 20th anniversary celebration on September 17, 2020, at Herbst Theatre in San Francisco. The evening will include an oratorio by Marcus inspired by the courage of Harriet Tubman and by the two decades of EJS. Please contact Ginger Johnson at gjohnson@equaljusticesociety.org for more information. Thank you!