Covert vs. Implicit Bias and the Persistent Appeal of Donald Trump

Since the 1950s, there has been a tremendous drop in self-reported prejudices by White people in America. There are three (arguably, more like 2.5) main explanations for this drop:

1) Self-reported prejudices have dropped because the level of prejudice has diminished. Straight-forward enough.

2) Self-reported prejudices have dropped because White people have learned to lie about their prejudices. They know racism has become unacceptable so they don't admit to it, but actual underlying attitudes haven't changed that much.

3) Self-reported prejudices have dropped because conscious prejudice has diminished, but it has been replaced or overtaken by subconscious or implicit biases which now exist in tension with conscious (and sincerely-held) egalitarian beliefs.

(I say this might be 2.5 explanations because #1 and #3 are consistent with each other).

The reason that the face-value "racist self-identification has fallen because racism is diminishing" argument can't be accepted uncritically is that there is ample evidence that some form of racially biased behavior is still rampant in our society. So alternatives two and three explain that behavior by either saying "White people are doing what they've always done and thinking what they've always thought, they've just gotten craftier in hiding the ball" (explanation #2) or "there's been an actual change in White attitudes, but the continued presence of racially biased patterns of behavior can be explained by the operation of subconscious biases" (explanation #3). We can characterize this split as between covert biases (known and internally acknowledged by the holder, but hidden) and implicit biases (unknown and internally rejected by the holder, but nonetheless still operating subconsciously).

One way of distinguishing between the covert versus implicit bias explanations is that they have different predictions about when prejudice will reveal itself. Covert bias suggests that people conceal their biases because it is socially unacceptable to reveal them; hence, such biases will emerge in social contexts where it is considered okay to express prejudiced views. Implicit bias, by contrast, suggests that people are trying to harmonize conscious egalitarian commitments with their subconscious prejudices; hence, bias operates in cases where the discriminatory behavior can plausibly be justified as being consistent with an egalitarian ethos (for example, one could favor a white job applicant against a black competitor in situations where they were roughly equally qualified by relying on "intangible" differences that are hard to measure; but one couldn't reject a black candidate with obviously superior qualifications because that would be self-evidently discriminatory).

Most of the work I've done in the discrimination context has essentially assumed we mostly live in the implicit bias box. I believe that in general people today honestly and sincerely buy into egalitarianism, but that this commitment coexists with subconscious prejudice. There's some evidence to support this hypothesis (Gaertner and Dovidio's "aversive racism" work being the most influential on me), and as a historical matter it can be derived from Gunnar Myrdal's description of the "American Dilemma". But there was always evidence that supported the covert bias hypothesis: for example, "bogus pipeline" studies (roughly, ones where researchers informed subjects that "we'll know if you're lying because we're scientists with fancy machines") have erased much of the drop in self-reported prejudices. That supports the covert bias hypothesis over the implicit bias one, because in general on the former the bias is known to the test subject (who then tells the truth because "the jig is up"), whereas someone with implicit biases may not even be aware he holds them and thus would be unaffected.

So which is it? Are there really significant portions of Americans who quietly harbor nakedly, unabashedly prejudiced views -- only keeping them quiet because they know that's what society demands?

Enter Donald Trump.

Donald Trump's continued appeal even after a string of outrageous comments -- ranging from Obama birtherism to Megyn Kelly "blood flowing from her wherever" to Mexican immigrants all being rapists to most recently nodding along to a supporter who wants to "get rid of" the Muslims -- has perplexed legal commentators who expect Republican primary voters to eventually recoil against such obvious forms of prejudice. That expectation is very much consistent with the implicit bias hypothesis: as it becomes increasingly difficult to square Trump's statements with egalitarianism, people should start to reject it.

But things are different from the covert bias position. When Donald Trump implies Obama is a Kenyan-born Muslim, when he suggests that Latinos are all violent criminals, when he legitimizes mass expulsion (or worse) of American Muslims -- maybe he's saying out loud what many people secretly believe but felt constrained in saying. Isn't this the root of the "anti-PC" backlash? "I used to be able to openly degrade women for having a menstrual cycle, but thanks to liberal elites and Feminazis I can't say that anymore! What happened to freedom in America?" The complaint of the anti-PC crowd is precisely that they have to keep quiet that which they'd rather broadcast (and once could broadcast, before we had to actually start listening to the desires of pesky minorities).

Most people can't say such things anymore, or at least they're constrained in their ability to do so. There are members of traditional outgroups in their workforce (maybe even their boss), or as powerful constituents, or major donors, or simply well-connected citizens. Saying such things comes with real costs, sometimes prohibitive costs. It can lose you your job, or your friends, or your reputation, or your candidacy. And some people resent that deeply even as they quietly stew and keep their true beliefs private.

But Donald Trump is different. He can say these things. He can't destroy his reputation -- he's his own brand. He can't be driven out of the race by outraged donors -- he doesn't need them. He can't lose his job -- he runs his own company. He doesn't have to defer to outraged outgroups -- what can they do to him? For someone with implicit biases, this may not matter -- he's so obviously over-the-top that his positions can't be reconciled with any sort of egalitarian commitment. But for the covertly-biased, he offers up a tantalizing vision where one can say all of those open, overt, explicitly biased things they genuinely believe and it's okay. They don't have to cover it up anymore. After all, someone with covert biases only keeps them covert because of social conventions which demand it. And social conventions can change -- most obviously, if the President of the United States, or even a mainstream presidential campaign with significant support and staying power, busts the taboo.

Bernard-Henri Levy once referred to the reemergence of anti-Semitism in terms of people who "feel once again the desire and, above all, the right to burn all the synagogues they want, to attack boys wearing yarmulkes, to harass large numbers of rabbis, to kill not just one but many Ilan Halimis...." This is what the Holocaust took away from the world, especially the European world: the ability to hate Jews and feel justified and righteous in doing so. And under this view, anti-Semitism never went away, it just was forced underground, and what people thirst for is for something to return what they see as their God-given (often literally) right to openly hate Jews without losing social status (many consider the flourishing of anti-Zionist ideology to be related exactly to this desire). And likewise we can say that the civil rights movement, the laying bare of Jim Crow and American apartheid, and the rise in the power and influence of former outgroups have all taken away the previously-enjoyed rights of straight White male Christian Americans to feel and express their superiority.

The incredulity over Donald Trump's continued appeal relies on the assumption that his supporters can't really buy into his extreme statements or his openly bigoted views. It follows, then, that if his following does continue to stay true, then maybe its not a case of people overlooking, or minimizing, or downplaying those views. Donald Trump is popular because of, not in spite of, his decision and ability to be avowedly prejudiced and not be drummed out of the mainstream.

The Insular Cases

I just read an interesting empirical study on Jewish feelings of outsiderness in the United States.* The good news is that most Jews don't feel like outsiders in the United States. So yay for that! But the interesting part of the study, to me, was what accounted for the sentiment. In general, Jews who lived in areas with many other Jews and who had many Jewish friends and acquaintances were far more likely to say they felt included as Americans. By contrast, Jews who were more isolated from other Jews and had fewer Jewish contacts were more likely to feel that they were outsiders in America. Since most Jews live in areas with relatively large Jewish populations, that means most Jews feel relatively included in America.

To me, this finding is quite intuitive. But it does clash with a narrative some forward, that insularity and particularism amongst minority group "ghettoizes" them and prevents their integration into the American mainstream. It turns out that story seems to be wrong. Rather, when a member of a minority group has surrounding structures demonstrating the normalcy of their peers (that they're average, non-exceptional members of the community), it is likely to reinforce the message that there is no conflict between being a member of the minority group and being an American.

The upshot is pluralist. If what we're going for is a polity in which people of all backgrounds feel welcome and included as Americans, the right strategy isn't to try and breakdown particularistic group affiliations. Rather, these groups are essential to the mainstreaming process, because they promote feelings of normalcy and non-exceptionalism amongst the minority group, which in turn renders the surrounding culture less alienating.

* Becka A. Alper & Daniel V.A. Olson, Do Jews Feel Like Outsiders in America?: The Impact of Anti-Semitism, Friendships, and Religious Geography 50 J. Sci. Stud. Religion 822 (2011).

More Hairy Situations

A controversy in rural Texas is brewing over a Native American child who, in accordance with his religious beliefs, wishes to wear his hair long. The local school district refuses to allow males to wear their hair below the collar, and is refusing an exemption. The family is digging in its heels as well:

Meanwhile, Betenbaugh said she is ready to fight the Needville rule and has not considered moving to another school district with a less stringent hair code.

"It would just teach our son that it is easier to roll over and do what you're told and not stand up for your rights," she said.

As I've expressed in other posts, the application of these rules strikes me as simply mean-spirited, and I think a renewed focus on what a just policy would like, rather than arrogant assertions of what a school board has a "right" to do, would improve things all around.

Amazingly, this will be my third post on hair as an element of discrimination law and minority rights. But the incongruity of it, I suspect, stems from the fact that hair just isn't that important to the identity of White Christians -- or perhaps, that to the extent we do care about our hair, any regulations that are passed comfortably encompass the type of stylings White people care about (which helps explain why the hair length restriction applies only to boys, not girls).

Sticky Slopes

Blogging on California's ruling striking down bans on same-sex marriage, Eugene Volokh argues that the case proves true the fears by gay marriage opponents that the extension of legislative protections for gay couples acts as a "slippery slope" towards eventually legalizing the unions. The ultimate effect of enacting policy reforms to equalize the status of minority groups is, I suspect, complex. They can encourage further reforms via the bandwagon effect, increasing morale amongst activists, or showing that the sky isn't falling. But they also can smother political action by convincing the majority that they've "addressed the problem" and that further demands are pushiness or requests for "special rights." But Volokh's argument is that, as a a legal matter, these policies often end up appearing in later court opinions which push us to the bottom of the slope. He notes that in both California and Massachusetts, the high courts used these policies as evidence of liberalizing attitudes with regards to gay couples -- crucial components to their decision.

I don't disagree with Professor Volokh's documentation of this phenomenon per se. But oddly enough, it seems to cut both ways. When Maryland's high court upheld our state's prohibition of gay marriage, it also relied on the increasing legislative protection for gay couples -- but to the opposite effect. It claimed that these policies proved that homosexuals did not need additional protections by the courts -- that they were now fully capable of participating equally in the democratic arena (Conaway v. Deane, 401 Md. 219, 286-90 (Md. Ct. App. 2007)). The enactment of policy protections for gay couples, in this case, served as a barrier to further reform. It made the slope "stickier." Justice Scalia has made similar (albeit unsuccessful) arguments in his own dissents in gay rights cases, using the legislative accomplishments of the gay rights lobby to undermine the case for legal intervention.

The problem seems to be adequately encapsulated by Jack Balkin in his wonderful article, "What Brown Teaches us about Constitutional Theory":

In general, courts will protect minorities only after minorities have shown a fair degree of clout in the political process. If they are truly politically powerless, courts may not even recognize their grievances; and if they have just enough influence to get on the political radar screen, courts will usually dismiss their claims with a wave of the hand. Conversely, as a reform movement for minority rights gains prominence through political protest and legislative lobbying, courts will increasingly pay attention to minority rights and take their claims more seriously." [Jack Balkin, What Brown Teaches us about Constitutional Theory, 90 Va. L. Rev. 1531, 1552 (2004)]

As Massachusetts and California appear to demonstrate, some demonstration of political power -- showing that attitudes towards homosexuals have "liberalized", in this case -- appears to be necessary in order to "grease the slope" towards gay marriage. But, as Maryland demonstrates, this is a move fraught with peril: courts can just as easily use legislative gains as an excuse to hamper or delay pleas for judicial reform -- to make the slope "stickier."

There is irony to this, of course: disempowered groups shouldn't have to demonstrate political power in order to see their rights vindicated (though, it should be said, this is precisely what Critical Legal Theorists predict we should see in such cases). If limiting marriage to heterosexual couples is a violation of gay rights, it is just as much so when they are a totally marginalized class as it is when they are only somewhat reviled. But if we are going to demand political clout as a precondition for rights, it's perverse to turn around and use their new-found (limited) influence in legislatures as an excuse to deny them those same rights. Once again, either the marriage equality is a right or it isn't. If it is, then the fact that they can't secure it legislatively is proof that -- regardless of how successful they are on other priorities -- they hold insufficient political power to vindicate all of their rights in that arena. If it isn't, then courts should say so and explain why.

But what we're seeing right now is absurd. At best, it appears that there is a very narrow "band" of relative political inclusion upon which minority groups can launch claims for judicial protection: too little inclusion and the courts won't pay attention, too much and they'll claim their intervention is unnecessary. At worse, it appears that the rules of the game change so as to permanently preclude meaningful judicial protection for minority groups -- any amount of political power (lots, some, none) can be used as a reason to reject their claims.

Ultimately, as in most cases where the facts lead to indeterminate legal outcomes, my suspicion is that the amount of power possessed by a given minority group will likely be interpreted in a way that is most amenable to judicial policy preferences. Judges who want to increase protections of gays and lesbians will use their increased influence as proof that discrimination against them is archaic, while judges who oppose such reform will use that same evidence as an argument against viewing gays and lesbians as marginalized at all.

Cause for Anger

Andrew Sullivan:

Sometimes I wonder if some white Republicans actually believe that black people in this country have no reason to feel any anger or alienation at times. I'm not talking about letting it consume you - just feeling it, dealing with it, managing it.

He then follows up with a moving account of how his own experience as a gay man makes it easier for him to understand Black anger and alienation -- along with the admission that, had he not been gay, he might have blindly adopted the same position as his Republican peers.

Social Condemnation as a Legal Substitute

Out in New Mexico, there is a burgeoning controversy about a photography company who refused, on religious grounds, to photograph a gay commitment ceremony. The couple complained to the state's human rights commission, which found the company in violation of the state's anti-discrimination policy and ordered her to pay attorney's fees in the amount of over $6,000. Eugene Volokh, by contrast, argues that photography is a speech act, and the Commission's ruling violates the first amendment by compelling someone to engage in expression they find distasteful (akin to, say, forced salute of the flag in West Virginia v. Barnette).

The legal merits aren't what I want to focus on. Rather, it flows out of a sub-issue that sprang out of a commenter alleging that very few people "would (dare to) take the photographer's side here if she refused to photograph a mixed-race couple." Volokh responds:

I should hope that virtually all of those who support Elaine Huguenin's Free Speech Clause rights would support that hypothetical photographer's constitutional rights, too. I certainly would, just as I support the constitutional rights of many people whose views I condemn.

When someone is discriminated against, the harms of that act are twofold. First, they are denied whatever benefit or opportunity that was being putatively offered -- in this case, having this photographer take pictures of a wedding. Second, they are faced with the stark and bald assertion that they are -- from the perspective of the discriminator -- a second-class citizen, one whom is particularly unworthy of her association or services.

Both of these harms can be remedied by law or by society. Law remedies the first by mandating the performance of the service. It remedies the second by sending the message the political community does not acquiesce to the assertion of inferiority. Both of these roles are important functions of anti-discrimination law.

Of course, sometimes it is not appropriate for law to intervene. Perhaps (as might be the case in the New Mexico controversy), the discrimination is intimately connected to another important right or principle, which the state must also be respectful of. In that case, society can also provide a remedy for both of the harms of discrimination. For the first, the couple can simply find another photographer. And for the second, society's expression of outrage and dismay can also send the message that the discriminated-against party really is to be included on full and equal terms, and it is the discriminator who is the outlier.

Often times, this expression of outrage occurs in tandem with the assertion of a lack of legal jurisdiction. "I condemn what you say, but defend your right to say it," as the saying goes. Volokh also makes note of this, condemning the hypothetical racist photographer while still asserting he would defend it. The availability of this sort of social sanction is, I feel, one of the ways we rationalize the withholding of legal remedy to many victims of discrimination.

But, this assumes that social sanction is, in fact, available. And for many gay and lesbian Americans, it is not. They are in a position of extreme vulnerability compared to, say, mixed-race couples, who can count on public outrage if they are discriminated against. Hence, they are even more reliant on legal remedy than many other groups. But of course, the fact that they are relatively more marginalized (that the question of their public equality is more controversial) makes it far less likely that law actually will protect them.

I've already noted the existence of this double-bind -- that law only protects minority groups who have displayed some measure of political power -- in the context of gay Americans before. In a sense, it merely states the obvious: it sucks to be marginalized, and the more marginal you are, the suckier it is. But it is important to note the extra layer of vulnerability that certain groups face when they can't count on extra-legal statements of support and affirmation in the face of discrimination. When the response to discrimination is not "I condemn but I defend", but "I defend and they're damn right to do it, too," the harms of exclusion are amplified dramatically.

The Internal Critic and Intersectionality: Who's Looking Out For the Minority Right?

Ampersand's latest post argues that there is a material difference between blacks accusing other blacks of being a "race traitor," and whites doing it. Specifically, he argues:

I don't find Blacks using the term "race traitor" objectionable the way I'd find the same term used by whites (liberal or not) objectionable. It's a little like when Chris Rock uses the word "nigger." I don't think it's acceptable for whites to say "nigger," by and large. But at the same time, it's not my place, as a white guy, to police the language Blacks use when having debates about Black identity politics within the Black community. That's none of my business. [...] Context - that is, what race the speaker is - does matter. It's clear that when blacks use the word "nigger" or its derivatives, they're not using it in the anti-black way it's typically been used by white racists. Similarly, the analogy between right-wing racists who have used "race traitor" (for whites who favored civil rights), and anti-racist Blacks who use the same term, doesn't hold much water.

Before I begin, I'd like to note that I was way too casual in the whole "race traitor" deal. It was a heated statement, and I regret it. More embarrassingly, from my perspective, is that the "book by two Georgetown Law Professors" is one I've actually been meaning to read, and both the authors (Mari J. Matsuda and Charles Lawrence III) are writers I admire and consider myself to be heavily influenced be. Also, I agree that context matters, and that there is a qualitative difference between white racists using phrases like "race traitor" and the same sort of claim being made by black leftists to other blacks. My argument thus should not be construed that both are equally objectionable, just that both are, indeed objectionable at all. That being said, I disagree with Ampersand that blacks calling other blacks "race traitor" is akin to the use of the n-word by blacks. The reason is simple--and it has everything to do with the context of use. Like Amp, I may find the use of this word by anyone distasteful. However, black people don't use it in a context designed to degrade or isolate the subject of its use (whereas any white usage necessarily carries with it the baggage of past racism). By contrast, "race traitor" is an epithet designed to intimidate, the purpose is to assault minorities who aren't displaying the proper "solidarity" and the intent is to strip them of their blackness--if you're not with me, you're not black. I briefly overviewed the theory of intersectionality in a previous post, but it's worth running through again:

[Intersectionality argues] that the experience of a double minority is different than the sum of the two minority groups she belongs. For example, the status of a Black Woman is not merely Woman + Black. Similarly, the status of a female minority conservative is not just Female + Minority + Conservative. The simplest reason why this is so is because whereas becoming a conservative by itself means joining a relatively popular and broad group, becoming a minority conservative means being subjected to endless taunts of being an "Uncle Tom" or traitor, accusations (and occasionally, true moments) of being "used" by majority peers, and other hardships. In other words, while my (White) life would not be significantly changed by switching my political affiliation, for a minority, this switch comes with a lot of baggage. Because the tropes associated with "conservative" are contingent upon one's other identities, one can't simply atomize conservatism (or any other identity) and examine independently of the rest.

Ampersand views this entire spat as intramural, blacks arguing amongst themselves about what it means to oppose racism. To me, this obscures the divisions in power relations that exist within the black community. Since the black left is far more powerful than the black right, the effect of them using this term is to leverage the influence they have over anti-racism discourse to suppress views they don't like. This is akin to when minorities began to criticize the fact that civil rights scholarship was nearly all-white (and didn't cite to any emerging minority writers). See Richard Delgado, The Imperial Scholar: Reflections on Civil Rights Literature, 132 U. Pa. L. Rev. 561 (1984). The terminology used by black leftists is not neutral debate, it is a deliberate attempt to link black conservatives to an ideology inherently opposed to black people. It's like a Jew calling another Jew a Nazi--irrespective of the validity of the criticism itself, the term is offensive because of the particular tropes and tenors it carries in the Jewish experience. Acting as if this was just folks debating ("free speech"?) blinds us to the realities of power and forces us to pretend that Blacks do all agree on the terms and conditions regarding opposition to racism--and moreover, we have to play that role by accepting the very controversy that is under dispute--that black leftists are "right" in how they frame the racism debate and the conservatives are "wrong." This does not address the second part of Ampersand's critique--that even if we (white liberals) think that the term is wrong, it's none of our business. As I wrote in my last post, my Jewish background places me deeply opposed to the "it's not our problem" school of thought. The history of genocide is replete with examples of tyrants who knew that if they just kept their actions an internal affair, they could escape international notice and condemnation of even the most brutal of crimes. Within this paradigm, Hitler's crime was not that he slaughtered millions of Jews, it's that he invaded Poland (which of course made it "everybody's problem"). Had he just concentrated on the Jews in his own border (like Turkey with Armenians, Rwanda, Cambodia, Sudan, etc.), he'd have been home free. I reject this logic. Obviously there is value to letting groups solve their own problems, just as there is value in respecting national sovereignty. But this is predicated on the notion that all members of the group in question stand on roughly equal footing, and that the object under consideration is not whether or not to expel a disempowered sub-sect. Because I believe the position of black conservatives does not meet either condition, and because I believe that outsiders have obligations, when possible, to rectify even injustices that aren't within their own community, I register my disagreement with Ampersand.