1. Top of page
  2. Abstract
  3. Contemporary Forms of Racism and Discrimination
  4. The Role of Subtle Bias Research in Antidiscrimination Law: Lessons Learned and Their Relevance to Arizona Immigration Law
  5. Conclusion
  6. References
  7. Biographies

Arizona Senate Bill 1070 requires law-enforcement officers to verify the citizenship of individuals they stop when they have a “reasonable suspicion” that someone may be unlawfully present in the United States. Critics of the law fear it will encourage racial profiling. Defenders of the law point out that the statute explicitly forbids most forms of racial profiling. By drawing on the lessons learned in the domain of antidiscrimination law, we discuss how social psychological research can inform this debate and illuminate challenges associated with fair enforcement of the statute. We conclude that the Arizona law, paired with a lack of comprehensive training and ineffective testing procedures for detecting discrimination, will likely result in many Latinos being illegally targeted on the basis of their race. While certain actions, such as effective training and oversight, may help mitigate discrimination, these safeguards are not likely to completely eliminate biased outcomes.

Arizona Senate Bill 1070 (SB 1070), enacted into law in April 2010, has ignited debate across the country.1 The most controversial provision of statute requires law-enforcement officers to verify the citizenship of individuals they stop lawfully (for some reason independent of immigration status), so long as they have a “reasonable suspicion” that the individual may be unlawfully present in the United States. Specifically, the law states:

For any lawful stop, detention, or arrest made by a law-enforcement official or a law-enforcement agency of this state or a law-enforcement official or a law-enforcement agency of a county, city, town, or other political subdivision of this state in the enforcement of any other law or ordinance of a county, city or town, or this state where reasonable suspicion exists that the person is an alien and is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person, except if the determination may hinder or obstruct an investigation. Any person who is arrested shall have the person's immigration status determined before the person is released (pp. 3–4; State of Arizona House of Representatives, 2010).

Regardless of what one may think of the intent of the Arizona statute, and regardless of whether the law ultimately has its origins in racial animosity or a desire to simply enforce existing law, what will be the statute's effect on those who are legal residents of the United States? Some observers have expressed concern over what will constitute a “reasonable suspicion” under the law and fear that Latino-Americans2 in particular will be targeted on the basis of their ethnicity or race, regardless of whether they are legal residents or not (e.g., Schwartz & Archibold, 2010, April 27). Furthermore, although the law will likely have its greatest impact on Latinos, other groups, such as Arab or Middle Eastern-looking individuals, may also be affected. Thus, the issues raised by the law are broader than its impact on a particular group; the issues involve general civil liberties for the nation as a whole. Anticipating such concerns, the statute also presumably forbids racial profiling by stating that law-enforcement officials may not consider “race, color, or national origin” in the enforcement of the law, except under circumstances allowed under the United States and Arizona constitutions. Defenders of the law, therefore, argue that fears of racial profiling are baseless.3

In this debate, we see clear parallels between the Arizona statute and existing antidiscrimination laws. We find these parallels somewhat ironic, given that the intent of immigration law is to exclude, while civil-rights laws generally promote inclusion. Nonetheless, we believe that some of the same challenges that have emerged with the enforcement of antidiscrimination law are also likely to arise with the enforcement of the Arizona statute, despite the disparate purposes of these laws. Consequently, it appears that some of the difficult lessons learned from the enforcement of antidiscrimination law are clearly relevant to the debate over the Arizona law. In the current article, we discuss some of these lessons and examine how they may apply to the implementation of the controversial Arizona immigration statute.

Contemporary Forms of Racism and Discrimination

  1. Top of page
  2. Abstract
  3. Contemporary Forms of Racism and Discrimination
  4. The Role of Subtle Bias Research in Antidiscrimination Law: Lessons Learned and Their Relevance to Arizona Immigration Law
  5. Conclusion
  6. References
  7. Biographies

Decades of public-opinion research indicates that an increasingly large number of White Americans no longer openly endorse an explicitly racist ideology (Schuman, Steeh, Bobo, & Krysan, 1997). This is promising news to be sure, and we do not mean to downplay the significance of these genuine steps toward social justice in the United States. However, despite this shift toward egalitarianism, subtle forms of bias, often directed at people of color, continue to exist. These more subtle forms of bias, which have been empirically documented since at least the 1970s (Dovidio & Gaertner, 2004; Gaertner, 1973; Gaertner & Dovidio, 1977), indicate that many White Americans discriminate in ways that are difficult for them, or others, to detect.

One example of subtle racism is the “private racist.” These are individuals who privately endorse at least some aspects of a blatantly racist ideology (Schuman, Steeh, Bobo, & Krysan, 1997), such as stereotypes about the criminality of members of minority groups, yet are unwilling to publicly admit such beliefs. These individuals presumably hold racial animus but realize that many people find such beliefs objectionable, and as a result, they have become skilled at concealing their beliefs throughout the course of their everyday interactions. Their motivation to hide their controversial belief system is likely to be especially high in workplace settings, where racially discriminatory conduct is illegal. Thus, their hidden belief system, and the discriminatory behavior that may result from their ideology, is likely to go undetected while they are on the job.

Implicit bias represents another form of subtle bias that is difficult to detect. This form of racial bias occurs automatically, with little deliberate or conscious control, and may also occur despite well-intentioned efforts to think and act in a nonracist manner. For example, the sight of a dark-skinned person may trigger beliefs among Whites involving aggressiveness or criminality, which act as filters through which this person's actions are interpreted. There is a significant amount of research that indicates that implicit bias, though subtle, is linked to discriminatory behavior inside the laboratory (Dasgupta, 2004) as well as in everyday situations (Rooth, 2010). Moreover, like the case of the private racist, discriminatory behavior that emerges out of implicit bias is likely to be difficult to detect during the course of everyday interactions.

While much of the research examining subtle bias has focused on Black Americans, a growing literature examining bias toward Latino-Americans suggests a number of similarities between the types of biases faced by Blacks and Latinos. The general public seems to be quite aware of biases toward Latinos; a recent nationally representative survey indicates that Latinos have passed Black Americans as the racial group most likely to be perceived as facing “a lot” of discrimination (Pew Research Center, 2010). Yet at the same time, just as is the case with Black Americans, personal expressions of overt bias toward Latinos have significantly decreased in recent decades (Wilson, 1996).

Nevertheless, there is continued evidence of systematic discrimination against Latinos. Archival evidence often implicates discrimination against Latinos, for instance, in earnings of Latino-owned firms (Carvajal, 2004) and in capital sentencing (Lee, 2007). Experimental research has revealed discrimination against Latinos in simulated jury decision-making contexts (Bottoms, Davis, & Epstein, 2004) and when applying for low-wage jobs (Pager, 2007). Subtle forms of bias, in particular, persist. For example, the performance of Whites on the Implicit Association Test indicates that many Whites have an implicit evaluative preference for Whites over Latinos (Aberson, Shoemaker, & Tomolillo, 2004). Many Whites also demonstrate a “shooter bias,” such that accurate judgments in simulated shoot/no shoot decisions are made more quickly for White targets relative to Latino targets (Sadler, Correll, Park, & Judd, 2011). A number of different studies suggest that bias toward Latinos is more likely to occur when it is easily masked, a pattern of bias consistent with the aversive racism perspective (Dovidio, Gaertner, Anastasio, & Sanitioso, 1992), and that negative attitudes and beliefs about Latinos are often expressed indirectly and symbolically (Ramirez, 1988).

In addition, besides subtle negative feelings toward Latinos, people tend to view Latinos as less “American” than Whites (and Blacks), and spontaneously question the legality of their presence in the United States (Dovidio, Gluszek, John, Ditlmann, & Lagunes, 2010). One consequence is that store clerks are more likely to ask for formal identification when a Latino shopper pays for a purchase with a check than when a comparable White shopper does (Dovidio et al., 2010). Thus, research in social psychology suggests that racial and ethnic discrimination continues to exist, and that Latino Americans are one likely target of such biases.

The Role of Subtle Bias Research in Antidiscrimination Law: Lessons Learned and Their Relevance to Arizona Immigration Law

  1. Top of page
  2. Abstract
  3. Contemporary Forms of Racism and Discrimination
  4. The Role of Subtle Bias Research in Antidiscrimination Law: Lessons Learned and Their Relevance to Arizona Immigration Law
  5. Conclusion
  6. References
  7. Biographies

In recent years, a growing number legal scholars and social psychologists, including ourselves (Nier, Nier, Gaertner, & Dovidio, 2007), have explored the manner in which research on implicit bias may help inform the enforcement of antidiscrimination laws in the United States, most notably Title VII of the 1964 Civil Rights Act. This law, and many similar state antidiscrimination statutes, presumably forbids racial discrimination in many contexts, such as employment and housing. Despite the large and growing body of literature examining this topic, finding the appropriate linkages between psychological research and legal practice has proven to be quite challenging for a variety of different reasons. For example, the majority of antidiscrimination law is structured to combat overt bias and focuses on curbing intentional discrimination, whereas research has emphasized that some forms of discrimination can occur without conscious intent (Krieger & Fiske, 2006). Also, some have questioned whether the relevant psychological research is sufficiently well developed to inform legal practice (for a recent discussion of these debates, see Jost et al., 2009; Tetlock & Mitchell, 2009).

While a large number of psychologists and legal scholars have been examining the significance of subtle bias for antidiscrimination law, there has been less focus on the intersection between immigration law and psychological research. Based on a review of the existing literature examining antidiscrimination law and subtle bias, we see at least four important insights that are relevant to the debate over the potential racial profiling that may occur as a result of the Arizona law. These insights suggest a number of challenges that are likely to be associated with the fair enforcement of the statue, and that policy changes are likely to be necessary in order to minimize the impact of subtle racial bias.

Decisions Made Under Time Pressure Foster Subtle Bias

In general, the social psychological literature indicates that when people have ample time to process information, they are more likely to rely on controlled processing of information. They deliberately and carefully consider the information that is available to them and then make a decision based on this information (Devine & Sharp, 2009). This type of decision-making process can, under certain conditions, be somewhat resistant to the influence of subtle biases, particularly for those individuals who wish to behave in a genuinely egalitarian manner (Dasgupta, 2009). However, as time pressures on decision makers increase, they become increasingly likely to rely on automatic processing of information (Fazio & Towles-Schwen, 1999), which can bypass the available information that otherwise would be fully and fairly considered. While automatic processing of information is efficient, in the sense that it allows people to reach decisions quickly, automatic processes are notoriously susceptible to implicit racial biases (e.g., Payne, 2001); as reliance upon automatic processing increases, so too does the likelihood of subtle racial bias. Unfortunately, law enforcement officers must often make decisions quickly under stressful conditions. In such a fast-paced and chaotic environment, the potential exists for subtle biases to influence decisions to an even greater degree. Relatedly, decision makers under conditions of “cognitive load,” as a consequence of time pressure, are also likely to rely on automatic decision processes that consequently increase the influence of subtle bias. In sum, law-enforcement officials must often make rapid judgments in an unpredictable environment. This is precisely the circumstance in which the impact of subtle bias is strengthened.

Ambiguity Promotes Subtle Bias

Social perception involves subjective processes; two individuals viewing the same person may perceive that person in different ways due to differing preconceptions, beliefs, and stereotypes. In the workplace, negative implicit attitudes and stereotypes may result in racially biased evaluations, as suggested by a significant body of literature (e.g., Dovidio & Gaertner, 2000; Hodson, Dovido, & Gaertner, 2002). This literature also indicates that negative attitudes and stereotypes are more likely to influence judgments when the information at hand is ambiguous or unstructured. Similarly, racial bias is more likely to occur when the standards for evaluating employees (or prospective employees) are ambiguous and subjective: the more subjective the procedures by which employees are evaluated, the greater the likelihood that subtle bias may result in biased employment decisions. Moreover, the potentially discriminatory nature of subjective employee evaluations has been acknowledged by the courts in a number of previous legal decisions (see Cook v. Billington, 1992; Grano v. Department of Dev, 1983; O'Connor v. Peru State College, 1986; Thornton v. Coffey, 1980).

We believe that SB 1070 will require law-enforcement officers to make judgments using ambiguous information as well as ambiguous standards, and as a result, the likelihood of racially biased enforcement of the statute will increase. In particular, Arizona law-enforcement officers have not yet been given clear guidance about what will constitute a “reasonable suspicion” of unlawful presence in the United States. This is not entirely surprising, because the standard itself—reasonable suspicion—is ambiguous. The instructional materials that law-enforcement officers have received, which have been issued by the Arizona Peace Officer Standards and Training (POST) Board, do indeed repeatedly caution against racial profiling, yet provide only ambiguous guidance as to what information will constitute a reasonable suspicion (Arizona Peace Office Training and Standards Board, 2010a).

Specifically, current instructional materials indicate that, under SB 1070, law-enforcement officers will be required to engage in a series of judgments when they encounter individuals. First, law-enforcement officers must make a judgment of “reasonable suspicion” of criminal activity in order to make a lawful stop, which was the case prior to the enactment of SB 1070. Following this judgment, which itself is likely vulnerable to the influence of subtle bias, a second layer of judgments must be made by law-enforcement officers; they must now also determine whether they have a reasonable suspicion that the individual is in the country illegally.

The instructional materials issued by the Arizona POST Board offer only limited guidance about how this judgment should be made (Arizona Peace Officer Standards and Training Board, 2010b). The instructional materials suggest that officers should first ask the individual for documentation (e.g., driver's license) that indicates the person is in the country legally. (This was already common practice prior to the enactment of SB 1070.) If the individual cannot produce such documentation, then any number of factors may be used to make a determination about whether the person is in the country illegally. For example, instructional materials indicate that “dress” can be considered a factor when making a determination of reasonable suspicion of being in the county illegally. Yet, the type of dress that constitutes a “reasonable suspicion” is not clearly specified, and the manner in which this factor should be considered relative to other factors, such as “demeanor” and “location,” is not clearly delineated. Instead, officers are asked to make this judgment based on the “totality of circumstances” (Arizona Peace Officer Standards and Training Board, 2010c), which is an ambiguous standard. In the absence of a more concrete standard, the judgments made by law-enforcement officials are likely to be quite subjective. This ambiguity in the specific information that should be sought and how this information should be used in making a determination of reasonable suspicion will likely result in greater reliance on implicit attitudes and stereotypes.

Detecting Subtle Discrimination Is Extraordinarily Difficult

The experimental method is the primary tool used by social psychologists to establish the presence of subtle racial discrimination, both in the laboratory and in the field (Dasgupta, 2004; Pager, 2007). Only through systematic, controlled experiments can subtle discrimination be directly substantiated.4 In the domain of employment discrimination, field studies of this type—often referred to as “audit” or “testing” studies—are conducted by having a team of trained personnel (including members of different races with matched qualifications) contact prospective employers while posing as job applicants, or by submitting similar resumes with different race-type names to prospective employers. Then, the experimenters record whether the applicant receives any interest from the prospective employers, as measured by a job offer or a “call back.”

These studies typically reveal a pattern of racial bias in the hiring process (Pager, 2007), with White applicants receiving job offers or call backs more frequently than Blacks or Latinos. Yet, when the field notes of the testers are examined, they often reveal little, if any, evidence of overt differential treatment (Pager, Western, & Bonikowski, 2009), that is, even testers who were discriminated against often report that they were treated fairly by their prospective employers. Only when the results of many testers are aggregated does a pattern of bias emerge. Thus, at the individual level, racial bias in screening and interviewing prospective employees can be hidden from the applicants. Similarly, the subtle processes by which biased decisions are made can also be hidden from the offending employers.

We suggest that a similar pattern of discrimination may occur as a result of the Arizona statute. It will be difficult for individual Latinos who are stopped by police to determine whether racial bias played a role in their encounter with law-enforcement officers. Indeed, law-enforcement officers themselves may also have difficulty in determining whether their judgments of reasonable suspicion are truly unbiased. While one possible outcome of the highly publicized debate over the new law will be heightened awareness and sensitivity about the potential for racial profiling, it will likely be difficult for individuals (both Latinos who are stopped and law-enforcement officers themselves) to accurately determine which particular stops were due to subtle racial bias and which stops were unbiased.

An Ounce of Prevention Is Worth a Pound of Cure

Thus, the findings from subtle bias research conducted in laboratory contexts, as well as the results of field experiments of discrimination, suggest that hidden racial profiling is likely to occur under the Arizona law. At the same time, research also indicates that this discrimination is typically too subtle to be easily detected in the course of everyday interactions. The subtle and hidden nature of this form of bias makes it extraordinarily difficult to recognize or litigate such discrimination, that is, many of those who are targets of subtle discrimination are unlikely to have sufficient evidence to pursue a legally actionable claim of discrimination. Consequently, subtle bias research has not had a widespread effect on the litigation of employment discrimination complaints. While there have been some successful applications of the subtle bias research in litigation (Price Waterhouse v. Hopkins, 1989), these cases still remain the exception rather than the rule.

As a result, Kang (2011) has suggested that focusing exclusively on the litigation of discrimination complaints may not be the most productive approach to minimizing discrimination. He argues that the lessons of subtle bias research are more easily applied to the prevention of discriminatory conduct in employment decisions, rather than redressing the damage already done by such behavior. Again, we see a clear parallel with the Arizona statute. As with many who are the unknowing targets of unlawful treatment in employment contexts, Latinos who are targets of racial profiling will have extraordinary difficultly establishing that their treatment was racially biased, since the likely sources of the bias (either private racism or implicit bias) are, by their very nature, easily masked. While some of these potential litigants may be successful, it may prove more useful to establish policies and procedures that discourage racial profiling before it occurs.

We suggest several preventative measures. First, law-enforcement officials should receive training that increases their awareness of the subtle nature of contemporary racial bias. Simply raising individuals’ awareness of subtle forms of racial discrimination may be effective in reducing discriminatory conduct and may be useful in limiting racial profiling. While the governor of Arizona, Jan Brewer, did issue a statement indicating that some training would be implemented (State of Arizona Office of the Governor, 2010), the resulting training materials released by the Arizona POST Board (2010b) do not squarely address the possibility of subtle bias resulting in discriminatory behavior. The materials do indeed speak strongly against making judgments based on race and state flatly that “racial profiling is police misconduct.” However, the materials also imply that racial bias is not likely to be a widespread problem. For example, at one point, the Executive Director for the Arizona Police Association states, “I urge you not to use race, not to be baited by the questions that may be posed to you by individuals whose purpose is to find Arizona Police Officers discriminatory in nature. I know you're not. You know you're not. Don't allow them to make you that” (Arizona Peace Officer Standards and Training Board, 2010c). Moreover, another law-enforcement official, the Chief of the Tucson Police Department, argues that while profiling has occurred in the past, it has been the result of “a few bad apples that have spoiled it and have had their actions racially motivated” (Arizona Peace Officer Standards and Training Board, 2010c).

These characterizations do not accurately reflect the empirical reality of contemporary discrimination. By failing to acknowledge that officers may have unintentional biases, and that they should be on guard against these biases, the materials demonstrate a lack of awareness of the subtle nature of covert and implicit racism. The materials are, in our view, inadequate because (1) unintentional biases can likely influence the judgments made by law-enforcement officers, and (2) the instructional materials do not clearly acknowledge this possibility.

Second, we propose that that training programs be rigorously studied in order to evaluate whether they actually have a meaningful impact on subtle bias and discriminatory conduct. While training programs for addressing racial profiling exist throughout the United States, usually offered through POST organizations, little is known about their efficacy. Their effectiveness is not typically subject to the scrutiny of rigorous independent review. Nonetheless, studying the impact of training is crucial to understanding what aspects of training seem to be effective and which elements are ineffective. For example, even if information about subtle bias were included in the training of police officers, it might not be sufficient to reduce discriminatory behavior toward Latinos or members of other groups. Moreover, in private industry, programs designed primarily to increase awareness of bias have only limited impact on producing equity within organizations (Kalev, Dobbins, & Kelly, 2006).

There are at least two reasons why training to reduce profiling of Latinos, stemming from SB 1070, may be limited in its effectiveness. One reason training may be limited in effectiveness is that awareness of subtle bias is not sufficient, by itself, to inhibit its operation. As noted earlier, implicit bias operates more strongly when people are under time pressure or have other cognitive demands on them, limiting their capacity to cognitively inhibit the influence of implicit bias. In addition, the effects of implicit bias are manifested subtly, in ways which people often have difficulty recognizing and, thus, controlling such bias. Therefore, we suggest that a component of training be directed at combating implicit bias directly. Specific and intensive training can undermine the association between a particular group and stereotypic characteristics (Kawakami, Dovidio, Moll, Hermsen, & Russin, 2000), reducing the activation of implicit biases that often motivate subtle discrimination (Son Hing, Chung-Yan, Hamilton, & Zanna, 2008). Plant and colleagues found, for example, that police officers (Plant & Peruche, 2005) and college students (Plant, Peruche, & Butz, 2005) displayed a systematic “shooter bias” in a computer simulation task in which they tended more often to erroneously “shoot” an unarmed Black suspect than a White suspect. However, with intensive training to inhibit this bias and to undermine stereotypic associations, this bias on the laboratory-based shooter task was significantly reduced for college students and eliminated among police officers.

Another reason why simply increasing awareness of subtle and implicit bias research may be limited in effectiveness is that it will likely have little influence on those with more blatant biases—those who knowingly harbor and endorse racial or ethnic bias. Thus, even some who receive training may nonetheless deliberately target Latinos. While this form of discrimination may be rarer than implicit bias (Wilson, 1996), there is evidence that people who aspire to be police officers tend to be higher than people in other professions in Social Dominance Orientation (Sidanius, Liu, Shaw, & Pratto, 1994), an ideological orientation that is related to overt, intentional bias against a range of minority groups (Sidanius & Pratto, 1999).

As a third preventative measure, we propose that robust mechanisms be instituted for investigating whether racial profiling is occurring in the field. Indeed, the executive director of training programs has indicated that procedures to detect discriminatory conduct will be in place (Arizona Police Officer Standards and Training Board, 2010b). This is certainly a promising sign, but the quality of discrimination “testing” programs varies widely, and given the great difficulty in detecting racial profiling in the course of everyday interactions between citizens and law-enforcement officers, this testing program must have the methodological rigor of other proven testing programs (Bendick & Nunes, 2011), and be deployed widely throughout the state in order for it to be effective. A haphazard testing program, or a more rigorous one that is not widely employed, will do little to curtail racial profiling and will not be an effective deterrent against discriminatory behavior. An effective and widely implemented monitoring system, particularly one that is independent of the police force, would also enhance the public's confidence in the fairness of the police force, which would increase their cooperation with the police and ultimately increase the effectiveness of policing (Tyler & Huo, 2002).

We propose that a truly effective testing program would be composed of two elements. First, the State of Arizona should continue to improve its analysis of traffic stop data in order to detect whether profiling appears to be occurring at the aggregate (e.g., county or state) level. In other words, after statistically controlling for other relevant variables (e.g., time and location of the stop), are Latinos more likely to be subject to a request of verification of being in the country legally, relative to Whites or other groups? Previous analyses of Arizona traffic stops have indeed found evidence of racial disparities. For example, Latinos, as well as Blacks and Native Americans, are more likely than Whites to be searched after being stopped by Arizona Department of Safety Officers, even after controlling for a number of other relevant variables (Engel, Cherkauska, Smith, Lytle, & Moore, 2009). These types of data need to be collected and analyzed on a consistent basis, since statistical analyses of traffic stop data can reveal the circumstances under which racial disparities are likely to be greatest. These results could then help inform the types of training that are appropriate and show where the need for training to minimize racial bias is greatest.

Second, Latino and White testers could be sent into the field in order to detect whether they face a racially biased pattern of traffic stops. Using procedures similar to those used in the domain of employment and housing discrimination, testers could be trained to present themselves to law enforcement officers in a similar fashion, in terms of behavior and appearance. Would Latino testers evoke “reasonable suspicion” among police officers with greater frequency than White testers, even when all other variables are tightly controlled? If so, then it could be determined that race, per se, seems to influence the likelihood that Latino-Americans are subject to a verification of their legal presence in the United States under SB 1070.

Who might administer such a monitoring system? Civilian oversight organizations represent one possibility. These organizations act as liaisons between police departments and the local community. However, they typically exist only in larger towns and municipalities (e.g., Phoenix, Tucson, and Tempe). Therefore, in order to ensure an effective statewide monitoring system, it seems that only a statewide organization would prove effective. The Arizona Office of the Attorney General, being the organization responsible for the enforcement of the state's laws, would seem to be the logical organization to oversee such a program. However, this is potentially problematic since this office is also required to rigorously enforce SB 1070. The Office of Attorney General would find itself in a position in which it must advocate for robust enforcement of the SB 1070 on the one hand, while being vigilant for evidence of racial profiling on the other hand. Given these competing concerns, it is not clear that the Office of Attorney General would be sufficiently independent of law enforcement to provide effective independent oversight of the enforcement of SB 1070.

A system that monitors the discrimination that may occur as SB 1070 is implemented could also help officers engage in corrective action as they perform their ongoing duties. In other words, the results of discrimination “testing” programs could be integrated with training programs, in order to increase the effectiveness of training. For example, people are generally less likely to detect bias in their own behavior (and the behavior of others) when decisions are made sequentially. That is, bias often remains hidden when information about cases is presented one at a time, rather than on the basis of aggregated information that a monitoring system (e.g., a review board) could provide (Crosby, Clayton, Alksnis, & Hemker, 1986). Moreover, when people with egalitarian values become aware of systematic deviations from their personal standards, they become motivated to engage in corrective action (Monteith & Flynn, 2010). With practice, they could better recognize and inhibit subtle bias in their behavior. In addition, a review procedure that presumes the possible operation of bias in ambiguous situations could help bring the issue to consciousness and provide a structure for addressing ambiguity. The opportunity to deliberate and reflect on decision-making processes increases the extent to which egalitarian social norms and personal values guide these processes, and thereby reduces the influence of implicit biases (Crosby & Dovidio, 2008).


  1. Top of page
  2. Abstract
  3. Contemporary Forms of Racism and Discrimination
  4. The Role of Subtle Bias Research in Antidiscrimination Law: Lessons Learned and Their Relevance to Arizona Immigration Law
  5. Conclusion
  6. References
  7. Biographies

Can racial profiling be avoided under SB 1070? The short answer is—not likely. The research that we have described above paints an alarming picture. While the Arizona statute does indeed explicitly forbid most racial profiling, covert and unintentional biases are nonetheless likely to occur on a significant scale, particularly if insufficient measures are taken to ensure fair treatment of Latino-Americans. Moreover, the current structure of antidiscrimination law will make it extraordinarily difficult for those targeted on the basis of race to legally establish that racial bias actually played a role in their treatment by law-enforcement officers. Similarly, because racial discrimination is often the result of automatic, subtle processes, many of these same law-enforcement officers may not realize that they discriminated against an individual.

The current statute, paired with a lack of thorough training and ineffective testing procedures for detecting discrimination, will likely result in many Latinos being illegally targeted on the basis of their race. Certain actions, such as more effective training and monitoring, can realistically be expected to help mitigate discrimination. However, there is little evidence that sufficient safeguards will be in place. Moreover, these safeguards, while helpful, are not likely to completely eliminate biased outcomes. Therefore, the statute, as currently implemented, will all but ensure profiling of Latino-Americans, whether it is intended or not. It is our hope that Arizona officials will work to improve the implementation of SB 1070 along the lines we have suggested, and that legislators in others states who are considering similar laws (Florida, Nebraska, Georgia, Oklahoma, Tennessee, and Pennsylvania; Aguilera, 2011) will take these conclusions into account as they consider such measures.

  1. 1

    1 Although most media outlets have referred to Senate Bill 1070, the final version signed into law is Arizona House Bill 2162, a modified version of the Senate Bill. In this paper, we will be describing the House Bill adopted on April 30, 2010.

  2. 2

    2 We use the term “Latino” throughout this paper. We recognize that this term represents many different ethnic groups, and that Latino is a masculine, rather than feminine, noun. Nonetheless, we use “Latino” simply for the sake of brevity. We also recognize that some use the term “Latino” to refer to ethnicity rather than race. For the purposes of this paper, we will use terms referring to race and ethnicity interchangeably.

  3. 3

    3 The law states that law enforcement officials “may not consider race, color or national origin in implementing the requirements of this subsection except to the extent permitted by the United States or Arizona Constitution.” This language is problematic according to Chin, Hessick, Massaro, & Miller (in press), because the U.S. Supreme Court and the Arizona Supreme Court have previously ruled that race may sometimes be considered a factor in making a determination of reasonable suspicion. For example, in United States v. Brignoni-Ponce (1975), the court held that “The likelihood that any given person of Mexican ancestry is an alien is high enough to make Mexican appearance a relevant factor.” Subsequent rulings from the Arizona Supreme Court have supported this position. In State of Arizona v. Gonzalez-Gutierrez (1996), the court ruled that “Mexican ancestry alone, that is, Hispanic appearance, is not enough to establish reasonable cause, but if the occupants’ dress or hair style are associated with people currently living in Mexico, such characteristics may be sufficient.” Thus, according to Chin et al. (in press), racial profiling is not banned under the U.S. and Arizona constitutions, and that the current wording of SB 1070 creates a loophole that allows racial profiling. This wording in the statute makes it possible, according to Chin et al. (in press), that law enforcement officials who rely-on race as a criterion in their decision-making process will be in compliance with SB 1070.

  4. 4

     Statistical modeling is another promising technique that allows for the detection of racial bias, particularly in the case of potentially biased traffic stops (e.g., Hernández-Murillo & Knowles, 2004). Despite the potential value of this technique, it does not allow for the tight control of a number of extraneous variables that may play a role in traffic stops.


  1. Top of page
  2. Abstract
  3. Contemporary Forms of Racism and Discrimination
  4. The Role of Subtle Bias Research in Antidiscrimination Law: Lessons Learned and Their Relevance to Arizona Immigration Law
  5. Conclusion
  6. References
  7. Biographies
  • Aberson, C. L., Shoemaker, C, & Tomolillo, C. (2004). Implicit bias and contact: The role of interethnic friendships. The Journal of Social Psychology, 144, 335347.
  • Aguilera, E. (2011, January 15). States expected to push more confrontational immigration legislation. San Diego Tribune Union. Retrieved January, 23, 2011 from
  • Arizona Peace Officer Standards and Training Board. (2010a). Implementation of the 2010 Arizona Immigration Laws Statutory Provisions for Peace Officers. Retrieved September 10, 2010 from
  • Arizona Peace Officer Standards and Training Board. (2010b). SB1070 Public Information Center. Retrieved September 10, 2010 from
  • Arizona Peace Officer Standards and Training Board. (2010c). Support Law Enforcement and Safe Neighborhood Act Training Course. Retrieved September 10, 2010 from
  • Bendick, M., & Nunes, A. P. (2011). Developing the research basis for controlling bias in hiring. Manuscript to appear in J. Nier & S. Gaertner (Eds.), Journal of Social Issues.
  • Bottoms, B. L., Davis, S. L., & Epstein, M. A. (2004). Effects of victim and defendant race on jurors’ decision in child sexual abuse cases. Journal of Applied Social Psychology, 34, 133.
  • Carvajal, M. J. (2004). Measuring economic discrimination of Hispanic-owned architecture and engineering firms in South Florida. Hispanic Journal of Behavioral Sciences, 26, 79101.
  • Chin, G. J., Hessick, C. B., Massaro, T. M., & Miller, M. L. (in press). A legal labyrinth: Issues raised by Arizona Senate Bill 1070. Georgetown Immigration Law Journal.
  • Cook v. Billington, 59 FEP 1010, 1013 D.D.C. (1992).
  • Crosby, F., Clayton, S., Alksnis, O., & Hemker, K. (1986). Cognitive biases in the perception of discrimination: The importance of format. Sex Roles, 14, 637646.
  • Crosby, F. J., & Dovidio, J. F. (2008). Discrimination in America and legal strategies for reducing it. In E. Borgida & S. T. Fiske (Eds.), Beyond common sense: Psychological science in the courtroom: Beyond common knowledge (pp. 2344). Mahwah, NJ: Erlbaum.
  • Devine, P. G., & Sharp, L. B. (2009). Automaticity and control in stereotyping and prejudice. In T. Nelson (Ed.), Handbook of prejudice, stereotyping, and discrimination (pp. 267284). New York: Psychology Press.
  • Dasgupta, N. (2004). Implicit ingroup favoritism, outgroup favoritism, and their behavioral manifestations. Social Justice Research, 17, 143169.
  • Dasgupta, N. (2009). Mechanisms underlying the malleability of implicit prejudice and stereotypes: The role of automaticity and cognitive control. In T. Nelson (Ed.), Handbook of prejudice, stereotyping, and discrimination (pp. 267284). New York: Psychology Press.
  • Dovidio, J. F., Gaertner, S. L., Anastasio, P. A., & Sanitioso, R. (1992). Cognitive and motivational bases of bias: The implications of aversive racism for attitudes toward Hispanics. In S. Knouse, P. Rosenfeld, & A. Culbertson (Eds.), Hispanics in the workplace (pp. 75106). Newbury Park, CA: Sage.
  • Dovidio, J. F., & Gaertner, S. L. (2000). Aversive racism and selection decisions: 1989 and 1999. Psychological Science, 11, 319323.
    Direct Link:
  • Dovidio, J. F., & Gaertner, S. L. (2004). Aversive racism. In M. P. Zanna (Ed.), Advances in experimental social psychology (Vol. 36, pp. 152). San Diego, CA: Academic Press.
  • Dovidio, J. F., Gluszek, A., John, M-S, Ditlmann, R., & Lagunes, P. (2010). Understanding bias toward Latinos: Discrimination, dimensions of difference, and experience of exclusion. Journal of Social Issues, 66, 5978.
  • Engel, R. S., Cherkauska, J. C., Smith. M. R., Lytle, D., & Moore, K. (2009). Traffic Stop Data Analysis Study: Year 3 Final Report. Retrieved on February 9, 2011 from
  • Fazio, R. H., & Towles-Schwen, T. (1999). The MODE model of attitude-behavior processes. In S. Chaiken & Y. Trope (Eds.), Dual process theories in social psychology (pp. 97116). New York: Guilford.
  • Gaertner, S. L. (1973). Helping behavior and racial discrimination among liberals and conservatives. Journal of Personality and Social Psychology, 25, 335341.
  • Gaertner, S. L., & Dovidio, J. F. (1977). The subtlety of white racism, arousal, and helping behavior. Journal of Personality and Social Psychology, 35, 691707.
  • Grano v. Department of Dev., 699 F.2d 836, 837 6th Cir. (1983).
  • Hernández-Murillo, R., & Knowles, J. (2004). Racial profiling of racist policing? Bounds tests in aggregate data. International Economic Review, 45, 959989.
  • Hodson, G., Dovidio, J. F., & Gaertner, S. L. (2002). Processes in racial discrimination: Differential weighting of conflicting information. Personality and Social Psychology Bulletin, 28, 460471.
  • Jost, J. T., Rudman, L., Blair, I. V., Carney, D. R., Dasgupta, N., Glaser, J., & Hardin, C. (2009). The existence of implicit bias is beyond reasonable doubt: A refutation of ideological and methodological objections and executive summary of ten studies that no manager should ignore. Research in Organizational Behavior, 29, 3969.
  • Kalev, A., Dobbin, F., & Kelly, E. (2006). Best practices or best guesses? Assessing the efficacy of corporate affirmative action and diversity policies. American Sociological Review, 71, 589617.
  • Kang, J. (2011). The missing quadrants of anti-discrimination: Going beyond the “Prejudice Polygraph.” Manuscript to appear in J. Nier & S. Gaertner (Eds.), Journal of Social Issues.
  • Kawakami, K., Dovidio, J. F., Moll, J., Hermsen, S., & Russin, A. (2000). Just say no (to stereotyping): Effects of training in the negation of stereotypic associations on stereotype activation. Journal of Personality and Social Psychology, 78, 871888.
  • Krieger, L. H., & Fiske, S. T. (2006). Behavioral realism in employment discrimination law: Implicit bias and disparate treatment. California Law Review, 9, 9971062.
  • Lee., C. (2007). Hispanics and the death penalty: Discriminatory charging practices in San Joaquin County, California. Journal of Criminal Justice, 35, 1727.
  • Monteith, M. J. & Flynn, S. M. (2010). Self-regulation and bias. In J. F. Dovidio, M. Hewstone, P. Glick, & V. M. Esses (Eds.), Handbook of prejudice, stereotyping, and discrimination (pp. 493507). London: Sage.
  • Nier, J. A., Nier, C. L., Gaertner, S. L. & Dovidio, J. F. (2007). The nature of contemporary discrimination and civil rights law enforcement. Journal of Intergroup Relations, 33, 7696.
  • O'Connor v. Peru State College, 781 F.2d 632, 637–38 8th Cir. (1986).
  • Pager, D. (2007). The use of field experiments for studies of employment discrimination: Contributions, critiques, and directions for the future. Annals of the American Academy of Political and Social Science, 609, 104133.
  • Pager, D., Western, B., & Bonikowski, B. (2009). Discrimination in a low wage labor market: A field experiment. American Sociological Review, 74, 777799.
  • Payne, K. (2001). Prejudice and perception: The role of automatic and controlled processes in misperceiving a weapon. Journal of Personality and Social Psychology, 81, 181192.
  • Pew Research Center. (2010). A Year After Obama's Election Blacks Upbeat about Black Progress, Prospects. Retrieved on 7, September 2010 from Pew Social Trends website at:
  • Plant, E. A., & Peruche, B. M. (2005). The consequences of race for police officers’ responses to criminal suspects. Psychological Science, 16, 180183.
    Direct Link:
  • Plant, E. A., Peruche, B. M., & Butz, D. A. (2005). Eliminating automatic racial bias: Making race non-diagnostic for responses to criminal suspects. Journal of Experimental Social Psychology, 41, 141156.
  • Price Waterhouse v. Hopkins, 109 S. Ct. 1775 (1989).
  • Ramirez, A. (1988). Racism towards Hispanics: A culturally monolithic society. In P. Katz & D. Taylor (Eds.), Towards the elimination of racism: Profiles in controversy (pp. 137157). New York: Plenum.
  • Rooth, D. (2010). Automatic associations and discrimination in hiring: Real world evidence. Labour Economics, 17, 523534.
  • Sadler, M. S., Correll, J, Park, B., & Judd, C. M. (2011). The world is not Black and White: Racial bias in the decision to shoot in a multiethnic context. Manuscript to appear in J. Nier & S. Gaertner (Eds.), Journal of Social Issues.
  • Schuman, H., Steeh, C., Bobo, L., & Krysan, M. (1997). Racial attitudes in America: Trends and interpretations. Cambridge, MA: Harvard University Press.
  • Schwartz, J., & Archibold, R. C. (2010, April 27). A law facing a tough road through the courts. New York Times. Retrieved September 19, 2010 from
  • Sidanius, J., Liu. J. H., Shaw, J., & Pratto, F. (1994). Social dominance orientation, hierarchy attenuators and hierarchy enhancers: Social dominance theory and the criminal justice system. Journal of Applied Social Psychology, 24, 338366.
  • Sidanius, J. & Pratto, F. (1999). Social dominance: An intergroup theory of social hierarchy and oppression. New York: Cambridge University Press.
  • Son Hing, L. S., Chung-Yan, G. A., Hamilton, L. K., & Zanna, M. P. (2008). A two-dimensional model that employs explicit and implicit attitudes to characterize prejudice. Journal of Personality and Social Psychology, 94, 771987.
  • State of Arizona v. Gonzalez-Gutierrez, 187 Ariz. 116, 118, 927 P.2d 776, 778 (1996).
  • State of Arizona House of Representatives. (2010, April 30). House Bill 2162. Retrieved 3 September, 2010 from the Arizona House of Representative Web site:
  • State of Arizona Office of the Governor. (2010, April 23). Statement By Governor Jan Brewer on Senate Bill 1070. Retrieved Sept 13, 2010 from
  • Tetlock, P. E., & Mitchell, G. (2009). Implicit bias and accountability systems: What must organizations do to prevent discrimination? Research in Organizational Behavior, 29, 338.
  • Tyler, T. R., & Huo, Y. J. (2002). Trust in the law: Encouraging public cooperation with the police and the law. New York: Russell Sage.
  • Thornton v. Coffey, 618 F.2d 686, 691 10th Cir. (1980).
  • United States v. Brignoni-Ponce, 422 U.S. 873 (1975).
  • Wilson, T. C. (1996). Cohort and prejudice: Whites’ attitudes toward Blacks, Hispanics, Jews and Asians. Public Opinion Quarterly, 60, 253274.


  1. Top of page
  2. Abstract
  3. Contemporary Forms of Racism and Discrimination
  4. The Role of Subtle Bias Research in Antidiscrimination Law: Lessons Learned and Their Relevance to Arizona Immigration Law
  5. Conclusion
  6. References
  7. Biographies
  • JASON A. NIER is an Associate Professor of Psychology at Connecticut College in New London, Connecticut. Dr. Nier is a social psychologist who specializes in the study of intergroup relations. His research has focused primarily on the measurement of intergroup attitudes, the development of techniques to detect subtle bias in applied settings, and the study of interventions that reduce bias and conflict between groups. He has authored or coauthored numerous articles and book chapters, which have appeared in journals such as the Journal of Personality and Social Psychology, Personality and Social Psychology Bulletin, and Group Processes and Intergroup Relations. Nier also coauthored a book chapter, with Samuel Gaertner and John Dovidio, that won the Gordon Allport Intergroup Relations Prize, awarded annually to the best paper in the field of intergroup relations.

  • SAMUEL L. GAERTNER is Professor of Psychology at the University of Delaware. His research interests focus on understanding and reducing prejudice, discrimination, and racism. He has served on the editorial boards of the Journal of Personality and Social Psychology, Personality and Social Psychology Bulletin, and Group Processes and Intergroup Relations. Also, Professor Gaertner and Rupert Brown are the incoming coeditors of Social Issues and Policy Review. Professor Gaertner's research has been supported by grants from the Office of Naval Research, the National Institutes of Mental Health and, currently, the National Science Foundation. Together with John Dovidio, he shared the Gordon Allport Intergroup Relations Prize as well as the Kurt Lewin Memorial Award from the Society for the Psychological Study of Social Issues, Division 9 of the American Psychological Association.

  • CHARLES L. NIER is Assistant Chief Counsel for the Pennsylvania Human Relations Commission, Philadelphia, PA. He has received a B.A. from Ohio University, a J.D. from Penn State Dickinson School of Law, an L.L.M. from The Georgetown University Law Center, and an M.A. from Temple University. Note that this author is responsible for the statements and interpretations contained in this article and they do not represent the official position or policies of the Commonwealth of Pennsylvania.

  • JOHN F. DOVIDIO, who is currently Professor of Psychology at Yale University, previously taught at Colgate University and at the University of Connecticut. His research interests are in stereotyping, prejudice, and discrimination; social power and nonverbal communication; and altruism and helping. He has been president of the Society for Personality and Social Psychology, the Society for the Psychological Study of Social Issues, and the Society for Experimental Social Psychology. Dr. Dovidio has been the recipient of several awards, including the Kurt Lewin Award, the Raymond A. Fowler Mentor Award, and the Award for Distinguished Service to Psychological Science. He recently coedited the Handbook of Prejudice, Stereotyping, and Discrimination, and he is coeditor of the journal Social Issues and Policy Review.