Vernellia Randall and Tshaka Randall, Cutting Across the Bias: Teaching Implicit Bias in a Healthcare Law Course, 61 Saint Louis University Law Journal 511 - 528 (Spring, 2017)(85 Footnotes)(Full Document)











Law faculty train students to believe that the law is objective in development, adoption, and application. Law faculty tend to teach discrimination in the law as either a historical oddity or very infrequent occurrence. When the law deals with discrimination, it does so narrowly, focusing on discrimination driven by intent, explicit stereotypes, prejudices, and biases. As a consequence, the law and lawyers struggle to deal with discrimination that is measured by impact and not intent. The legal system does not adequately address discrimination driven by implicit stereotypes, prejudices, and biases. For more than twenty-five years we have made diversity an important part of our pedagogy to combat these realities, and in the last fifteen years we have been teaching about implicit bias for the same reasons. To train lawyers for the twenty-first century, it is imperative that faculty train students on implicit bias. This article discusses our process for including a conversation about implicit bias in a health care law course. In this article we focus almost exclusively on how we integrate the discussion of implicit bias. While this integration depends heavily on the substantive law discussed each week in class, because of the limited scope of this article we will only spend a little of our time discussing the substantive law and save a broader discussion for another forum.

Measuring the impact of implicit bias as an input is difficult. It is easier to see the impact of implicit bias in the disparate outcomes they create. However, relying solely on this approach is costly because it allows the discrimination we hope to avoid, to continue unabated. One approach to addressing implicit biases as an input is to treat them as a given (biases exist and have an impact on our behavior, and on the behaviors of others) and then to talk about how to address their existence and prevention.

A health care law course that addresses implicit bias is designed to help students recognize how implicit biases may impact health care law and policy, to recognize their own implicit biases and those of others, and to begin to talk about how to prevent the influence of those biases on the law and policy.

When we teach implicit bias, the goal is to make the students active participants in a dialog. Instead of just providing texts and materials about implicit bias and testing their understanding of the material, we ask students to explore their own biases and the biases of their colleagues, faculty, and the legal system. Many students and faculty are often heavily resistant to this discussion, but the resistance is based on a fundamental misunderstanding of what implicit biases are and the relationship between implicit biases and discrimination.