Despite persistent bias, Trial Court chief says she is committed to change

The festering racial animus that had been an open secret in the Massachusetts Trial Court burst into public view four years ago.

For years, black judges, in particular, had complained that they were viewed as less capable than their white peers. On regular evaluations — in which attorneys assess the judges they practice before — they were viewed far more negatively than their white counterparts. Judges who received unsatisfactory scores were subject to remedial measures.

Independent evaluators who had been brought in to review the situation found clear evidence of racial bias against black judges. If those findings were validating for black judges in some sense, they were enraging as well.

Now a deeper look at the evaluations of the trial court judges has just been completed. Once again, it found evidence of bias: Judges of color fared substantially worse than white judges in the eyes of these attorneys — most of whom are white. Female judges did worse than white men, as well, though not as badly as people of color.

The report, released to the public on Friday, summarizes more than 13,000 comments by attorneys on 335 judges over the past several years. It is blunt in its assessments of racism and sexism.

“Racial and ethnic minority judges were the most likely to have their intelligence questioned,” said the report from an independent group, Market Decisions Research. “They were also more likely to be perceived as being too emotional, to be the subject of biased comments, and to receive negative comments about their legal ability.”

As for female judges, the report recounts a litany of sexism. “Female judges are more likely to be the subject of biased comments, receive comments about their physical appearance, have their intelligence questioned, or to receive negative comments about their communication skills, legal ability, administrative capacity, their integrity and impartiality, and their professionalism and temperament.”

The court system hired the independent group to analyze the data.

The way judges are treated and looked upon by lawyers in the system is a window into the larger issue of how people of color are treated in courthouses. As such, the findings touch on every aspect of the administration of justice.

Paula Carey, the chief justice of the Trial Court, freely admits that she was a bit defensive about the findings of the initial report, which was conducted in 2013. At the time, she raised questions of the validity of the survey.

But now, she says, no more.

“I think our thinking has kind of evolved since 2013,’’ she told me last week. “Even for myself, if someone had said to me in 2013 that I was biased, I think I would have probably gotten my back up and said, ‘I’m not biased.’ We’ve done a lot of work in the trial court since then. We know now that everybody has got some level of implicit bias.”

Carey said that she believes the 2013 study was a turning point for the court system in terms of addressing bias in the ranks and that such bias touches every aspect of the system, from attorney-judge relationships to the way the public is treated by court employees in routine interactions at the counter in, say, Probate Court.

After that first study, the court system vowed to review the whole process, starting with the evaluation form itself. A commission on racial bias was revived. The remedial measures for low-scoring judges were suspended.

“We embraced the fact that the evaluations were eliciting biased responses,” Carey said.

The court system has embarked on a number of training programs to address bias in its ranks, Carey said. They have ranged from implicit bias training for judges and high-ranking staff to “Cultural Appreciation Days” to encourage staff to view the areas they serve with greater sensitivity. Due to the constraints of a perpetually cash-strapped system, even the most promising of those programs have reached fewer employees than Carey would have liked. The next challenge, she suggested, is to “scale” the initiatives.

But maybe it isn’t that simple. No program for court employees is going to reach attorneys, for instance — a group that continues to test high for bias.

“It’s not a thing that you can address in a year or two,” said Superior Court Judge Shannon Frison, a past president of the Massachusetts Black Judges Conference. “This will require a cultural shift among the entire bar. We can’t claim to be progressive in Massachusetts if that’s not what our statistics and experiences bear out.”

Frison said she has seen little substantive change in the past four years. She noted that she is one of just two African-American judges in Superior Court. The country, she noted wearily, isn’t exactly moving forward when it comes to racial bias.

“We’re going through the same things the rest of the country is going through,” Frison said. “I don’t necessarily see a lot of change yet, but I do see a lot of conversation, and that’s the start of change.”

Rahsaan D. Hall, head of the Racial Justice Program at the American Civil Liberties Union of Massachusetts, said he worries that an emphasis on inherent implicit bias can become a way of avoiding the hard work of addressing racist behavior.

“Talking about implicit bias and diversity and inclusion isn’t going to get to the heart of the issue,” Hall said. “It isn’t enough to be aware of implicit bias. It’s about deconstructing white supremacy.”

Carey, who was recently appointed to a second five-year term, understands some are skeptical that bias in the courts is diminishing. But she said this is the issue on which she is passionately committed to improve in her time as chief justice.

“We’re not there yet, but we’ve made significant progress,” Carey said. “I think it does feel different. I think it feels like there’s a commitment to doing this work.”

Read the report