Gender and Racial Fairness

Resource Guide

While instances of discrimination towards individuals of various backgrounds have dwindled, discrimination continues to threaten equality within the judicial system. Instances of bias include, but are not limited to, bias towards an individual’s gender, race and ethnicity, and sexual orientation. Through the creation of task forces, states have made strides toward eliminating bias in their court system through accomplishments such as increased access to justice, improvement in jury pool representation, promoting diversity in court appointments, providing adequate interpreter services, conducting educational programs, encouraging diversity in law enforcement, and promoting the availability of legal representation for the poor.

Links to related online resources are listed below. Non-digitized publications may be borrowed from the NCSC Library; call numbers are provided.


Featured Links

Kate Berry. Building a Diverse Bench: A Guide for Judicial Nominating Commissioners. (2016).

The Brennan Center for Justice's new resource for judicial nominating commissioners recommending concrete steps to help increase diversity in our state courts.

The Gavel Gap. (2016).

Who Sits in Judgement on State Courts? This full report, authored by Tracey E. George and Albert H. Yoon from The Gavel Gap, analyzes data on the demographics of state court judges in all 50 states.  They found troubling differences between the race and gender composition of the courts and the communities they serve.

Gender Fairness in the Courts

Resnik, Judith. Asking about Gender in the Courts. (Summer 1996). Signs 21: 952 This article examines recent trends in gender bias research among courts, with special attention to the task force movement.
Gender Bias: Guidelines for Judicial Officers -- Avoiding the Appearance of Bias. (August 1996). California Judicial Council, Judicial Advisory Committee on Access and Fairness, with the assistance of the Orange County Bar Association Gender Equality Committee. This article identifies gender bias through presenting common examples of the practice, while also rationalizing the necessity in ceasing its practice.
Lynn Hecht Schafran and Norma Juliet Wikler Gender Fairness in the Courts: Action in the New Millennium. (2001). National Judicial Education Program, A project of NOW Legal Defense and Education Fund in cooperation with the National Association of Women Judges This implementation strategy manual discusses: key components to achieve and secure gender fairness in the courts, strengthening gender bias task forces and implementation standing committees as vehicles for reform, and integrating gender fairness concerns into court planning and reform initiatives.
Guidelines for Gender Neutral Courtroom Procedures. (2004). The Texas Center for Legal Ethics and Professionalism Contains information on recognizing gender bias, how gender bias is manifested in the courtroom, suggested ways to avoid gender bias, and responsibility for eliminating gender bias in the courtroom (see page 9).
Handbook on Gender Equality in the Courts: A Guide for All New Mexico Courts. (October 2000). State Bar of New Mexico Committee on Women in the Legal Profession and the New Mexico Supreme Court The combined work of the NM Committee and Supreme Court has produced this guidebook which provides information on identifying gender bias in the courtroom, examples of such prejudice, and suggestions for improving conditions in gender conditions in courtrooms.
Achieving Fairness through Bias Free Behavior. (May 2009). Pennsylvania Interbranch Commission for Gender, Race, and Ethnic Fairness. An informational pocket guide for the courts on promoting non-prejudiced language and behavior by encouraging readers to  recognize bias, take important steps to avoid bias, use bias-free language and deal with bias in courtrooms properly and professionally.
Norma Juliet Wikler and Lynn Hecht Schafran. Learning From The New Jersey Supreme Court Task Force On Women In The Courts: Evaluation, Recommendations And Implications For Other States. (1991). Women`s Rights Law Reporter 12, no. 4: 313 This article presents the findings of the NJ task force on subject areas including courtroom interactions, substantive areas of the law, bar associations, and creating public awareness.
Moore, Marla S. Ten Years Later, Did We Make a Difference?: A Review of Gender and Justice in the Courts: A Report to the Supreme Court of Georgia. (2000).

This Court Executive Development Program report looks at the recommendations which have been implemented by the 1989 Supreme Court Commission on Gender Bias in the Judicial System.

Lynn Hecht Schafran and Norma Juliet Wikler Operating a Task Force on Gender Bias in the Courts: A Manual for Actions. (1986). Washington, DC: The Foundation for Women Judges This manual presents a format for other women's organizations to operate their own task force on state and local court systems, including information on the start-up process, data collection, formulating findings after results are tabulated, and implementing reforms.
Lynn Hecht Schafran. Planning for Evaluation: Guidelines for Task Forces on Gender Bias in the Courts. (1989). Women Judges` Fund for Justice Article explains the individual aspects of gender bias task force evaluation, making appropriate recommendations concerning the evaluation, and evaluating action taken following the recommendations of the task force.
Shafran, Lynn Hecht, Norma J. Wickler and Jill Crawford. The Gender Fairness Strategies Project: Implementation Resources Directory. (1998). National Judicial Education Program, A project of NOW Legal Defense and Education Fund in cooperation with the National Association of Women Judges A complete guide to implement gender fairness strategies with information concerning available resources, useful substantive law areas, and successful collaboration with other legal professionals.
Video: Women and the Judiciary. (March 2010). C-SPAN At the 2010 midyear meeting of the National Association of Women Judges (NAWJ),  United States Supreme Court Justices Ginsburg and Sotomayor, and Lady Hale of Richmond were honored.  The honorees spoke about their experiences as judges, the role women have assumed in the legal profession, and the operation of the high court in Britain and the U.S. 

Racial Bias

Clifton, Grandy. A New Paradigm for Fairness: The First National Conference on Eliminating Racial and Ethnic Bias in the Courts . (1995).

A New Paradigm for Fairness: The First National Conference on Eliminating Racial and Ethnic Bias in the Courts.

 

Richardson, John. Bias in the Court: Focusing on the Behavior of Judges, Lawyers and Court Staff in Court Interactions. (1997).

This report highlights topics discussed at the 1995 First National Conference on Eliminating Racial and Ethnic Bias in the Courts such as staying vigilant against bias through continuous self-examination of court operation, fairness and equal access to justice for non-English speakers, protecting rights of American Indians, and mentoring persons of color to judicial service on the bench.

COSCA Position Paper on Racial and Ethnic Fairness. (December 2001). In December of 2001, the Conference of State Court Administrators (COSCA) issued a position paper on the State Courts’ responsibility to address issues of racial and ethnic fairness. The COSCA position paper outlines strategies and goals for the judiciary to confront the issue of race and ethnic bias.  The sub-topics of this resource guide reflect most of the priority areas outlined in the COSCA position paper. 
Eliminating the Barriers and Opening the Doors. (January 2001). Michigan Bar Journal This article explains the actions of the State Bar of Michigan in conjunction with the Michigan Supreme Court Citizen's Commission to Improve the Courts to decrease the racial discrimination and bias found in the state's judicial system.
Handy, Edna et al. Establishing and Operating a Task Force or Commission on Racial and Ethnic Bias in the Courts. (1995). National Consortium of Task Forces and Commissions on Racial and Ethnic Bias in the Courts edited by NCSC. This manual provides step-by-step guidelines for establishing a task force or commission to study racial fairness in the courts. Appendix A addresses the Relationship Between Gender and Racial/Ethnic Task Forces in the Investigation of Bias in the Courts.
Guide to Bias Free Behavior in the Courts. (1994). Michigan State Court Administrative Office This Web site provides information for the Michigan State Court on the history of bias in the courts, helpful suggestions for improvements, rights and responsibilities of court employees, and recent complaints about the legal system.
Kang, Jerry. Implicit Bias: A Primer for Courts. (2012).

This primer was produced as part of the National Campaign to Ensure the Racial and Ethnic Fairness of America’s State Courts.

Martin, William E. and Thompson, Peter M. Judicial Toleration of Racial Bias: Introduction. (Winter 2002). University of Dayton School of Law website Excerpts taken from “Judicial Tolerance of Racial Bias in the Minnesota Justice System.” 25 Hamline Law Review, Winter 2002. Website contains information concerning race, racism and the law.  Includes links to other sites containing similar information.
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Diversity in the Courts

Jawando, Michele L. and Billy Corriher More Money, More Problems Fleeting Victories for Diversity on the Bench. (October 2015).

Center for American Progress. This report examined contested state supreme court elections from 2000-2015, finding that while white judges are re-elected 90 percent of the time, black and Latino judges are re-elected at rate of just 80 and 67 percent, respectively.

Affirmative Action Plan of the Massachusetts Trial Court. (July 1998). Administrative Office of the Massachusetts Trial Court Some of the topics covered in this resource include a statement of the affirmative action policy of the Massachusetts Trial Court, implementation guidance, hiring procedures, and relevant statutes and regulations.
Answering the Call for a More Diverse Judiciary. (June 2005). Lawyers Committee for Civil Rights Under Law Provides a review of state judicial selection models and their impact on diversity.
Willert, Sheryl J., Antoinette M. Davis Building a Diverse Court: A Guide to Recruitment and Retention. (September 2002). Washington Supreme Court, Washington State Minority and Justice Commission This guide includes a discussion of why diversity in the court system is a worthwhile goal, how to assess the diversity in your own court, and how to implement initiatives that have proven effective in increasing diversity.
Colorado Judicial Branch Equal Opportunity and Diversity Plan 2002. (February 2002). Colorado Supreme Court This plan spells out methods of Colorado's Judicial Branch for providing diversity and equal employment opportunity, including the statement of policy, duties and responsibilities of members, communication of the judicial branch equal employment program, and program components.
Diversifying the Bench Guidebook: How to Become a Judicial Officer.. (March 2011). The Washington State Minority and Justice Commission.

This guidebook is intended for attorneys contemplating a judicial career. It contains information on qualifications, rules and regulations, and the processes involved in seeking an appointment and in running for election to a judicial position. The guidebook also contains insight gathered from a number of judges addressing questions attorneys considering a judicial career often ask.

Diversity Best Practices Guide. (March 2006). National Association for Legal Career Professionals The NALP has created this guide to assist legal employers to implement diversity strategies and initiatives.  The Guide is organized into four topics: (1) leadership, (2) retention, culture and inclusion, (3) professional development, and (4) recruitment.
Equal Employment Opportunity/Affirmative Action Master Plan. (May 2014). Judiciary of the State of New Jersey This comprehensive guide includes information on the equal opportunity and affirmative action plan of the New Jersey Courts.
Torres-Spelliscy, Ciara, Monique Chase, and Emma Greenman Improving Judicial Diversity. (2010). New York, NY: Brennan Center for Justice at New York University School of Law This study looks at a sample of ten states and examines the success of states with an appointment system of judicial selection and presents a picture of diversity in state courts.  Also featured in the study are responses from interviews with members of state judicial nominating commissions regarding how diversity is taken into consideration during the judicial nomination process.
Resolution Six of the CCJ Access to and Fairness in the Courts Committee. (January 2009). The Access to Justice Committee of the Conference of Chief Justices adopted resolution six on January 28, 2009.  Its purpose is to foster racial and ethnic diversity among law clerks in the state and federal courts.  Judges may use a free video conferencing system called " Law School Connect " to interview candidates for judicial clerkships.  Law School Connect is available at a number of law schools around the country .

Implicit Bias

Helping Courts Address Implicit Bias: Resources for Education.

Casey, Pamela M., et al. (2012.) NCSC, with funding from the Open Society Institute, documented the development and implementation of pilot educational programs on the topic of implicit racial bias in three participating states between 2009-2012. These materials are no longer current, and NCSC is exploring new funding to provide updated educational materials to the court community.

Immaculate perception.

Professor Jerry Kang, TEDxSanDiego. (2013.) Professor Kang discusses how our assumption of "immaculate perception" is disproved by a number of tests measuring implicit bias.
http://jerrykang.net/talk/implicit-bias-talks/

Unconscious Bias and Judicial Decisionmaking.

Professor Vivian Hamilton, William & Mary Law School. (2017.) Professor Hamilton reviews existing studies of implicit bias in judicial decisions.

Emotional Judges and Unlucky Juveniles.

Ozkan Eren and Naci Mocan (2016). The authors analyzed juvenile court decisions between 1996 and 2012 and compared them to the effects of emotional shocks associated with unexpected outcomes of football games played by a prominent college team in the state. The study found unexpected losses increased disposition lengths. 

Jury System Diversity

Houser, Mark. A Jury of Peers?. (July 2014). Pittsburgh Tribune Review This article delves into the actions of Allegheny County judicial system's attempts to improve the lack of diversity in jury selections, through the discussion of the issue of blacks missing from panels, problems with the system, potential of abandoning "randomness," and examines juries and society.
County to Address Jury Diversity. (February 2003). Pittsburgh Post-Gazette This article explains the plans of the Allegheny County justice system to start new programs which will improve the involvement and participation of minorities, largely underrepresented in the current system, in area's judicial process.
Gender Bias in Jury Selection. (2001). Pennsylvania Supreme Court The Final Report of the Pennsylvania Supreme Court Committee on Racial and Gender Bias in the Justice System includes a Chapter on gender bias in jury selection; See Chapter 3.  The text presents the Committee's investigation into the barriers faced by residents of Pennsylvania, specifically women, when serving on juries in the state; these barriers include access to appropriate childcare, travel accommodations, economic impacts, and the psychological effects of a jury experience.
Holdeman, Rosa. Hispanic Representation in Jury Panels of the Superior Court of California, County of Orange is Unknown. (2009).

This report aimed to verify the representation of Hispanics in Superior Court of Orange County jury panels. The results support the recommendation that the court should consider changing its current practice of not tracking the race and ethnicity of summoned jurors.

Racial and Ethnic Bias in Jury Selection. (2001). Pennsylvania Unified Judicial System Chapter 2 of this report examines racial and ethnic bias in jury selection.
Ronald Randall, James A. Wood, and Robert G. Martin. Racial Representativeness of Juries: An Analysis of Source List and Administrative Effects on the Jury Pool.

The Justice System Journal, Vol. 29, No. 1. In response to the concerns of the Lucas County, Ohio, Court of Common Pleas that juries underrepresent African- Americans, this study evaluates the racial and Hispanic representativeness of the list of registered voters, licensed drivers and various lists derived from the original source list that leads to the list of potential jurors. The authors find that the list is more representative for African-Americans but less representative for Hispanics.

McNulty, Jennifer. Sociologist Testifies About How to Overcome Racial Bias in Jury Selection. (March 1997). University of California Santa Cruz Currents This article explains Hiroshi Fukurai's experience in testifying about the under representation of minorities in California juries, where he advocated the use of affirmative action in jury selection.

Education and Training

Herman, Madelynn. Achieving Fairness Through Bias Free Behavior: A Pocket Guide for the Courts. (April 2005).

This pocket guide provides information on recognizing bias, how bias is manifested in the courtroom, eliminating bias, ensuring bias-free communication and behavior, demonstrating respect, neutrality and fairness, institutionalizing fairness, codes of conduct and bias, court or disciplinary cases involving bias, and resources.

Richardson, John. Bias in the Court! Focusing on the Behavior of Judges, Lawyers and Court Staff in Court Interactions. (1997).

This educational curriculum aims to reduce the effects of racial and ethnic bias in the courts.