Racial Bias Harms Regardless of Intent

“Too often we forget that these are real people with real lives,” says recent graduate Aaron Yared, ’22, a former UW Graduate and Professional Student Senate (GPSS) president.

He’s talking about Tyler Bagby, an undergraduate attending Washington State University, who was charged and convicted of assault, among other things, following a fraternity party. After his trial, Bagby appealed, arguing that the prosecutor committed misconduct by evoking implicit racial bias. Last month, the Washington Supreme Court agreed and vacated his conviction 9-0.

Yared knows the case well, having been a student in Professor Kimberly Ambrose’s Race and Justice Clinic, focused on direct representation and advocacy to disrupt the systemic over-representation of youth of color in the juvenile and adult criminal legal systems. During the winter of 2022, he and other students worked on an amicus brief in support of Bagby’s appeal on behalf of the Black Law Students Association at both the University of Washington and Gonzaga University.

The appeal cited how the prosecutors continually referred to Bagby’s “nationality,” described white witnesses as “good Samaritans,” conspicuously leaving out the lone Black witness, and evoked a negative stereotype of Black men and their dogs. “The amicus brief put together the history of what implicit bias is, recommendations of what the court should do, in addition to the exhibits of student testimonies,” says Ambrose. “The court listened to what students had to say about being ‘othered’ in this situation, and it had a lot of impact.”

While the outcome is cause for celebration, students also see it as a small step among many needed changes. “This case is significant, but there’s some pessimism with this. We’ve seen these things happen over and over and over again,” says Metta Girma, 3L and Gates Scholar. “It was both straight-forward and a long shot. Moving forward as a society, we need an objective standard, not what a prosecutor intended.”

Experience versus Theory

The Race and Justice Clinic is a sought-after class because it offers real-world experiences with real-world impacts. “So much of law school is theoretical,” says Yared. “With experience, you see the human side.”

Gabryelle Matz-Carter, 2L, is a Foreign Language and Area Studies (FLAS) fellow and president of the Black Law Students Association (BLSA). She hopes to participate in the Race and Justice Clinic next year. “That experiential piece is huge," she says. “Having real clients, real stories, real issues — it’s why we’ve come to law school, to make real change.”

Using the power of experience to strengthen the amicus brief, students in the Race and Justice Clinic, including Girma and Yared along with other student leaders like Matz-Carter, organized a voluntary town hall meeting with members from the Black Law Students Association at Gonzaga and the UW in order to gather testimonials of law students’ personal experiences with implicit racial bias. Arguing for the ruling to move beyond the precedent of State v. Monday, which focuses on an intent-based standard, the students wanted to make it clearer that racial stereotypes and attitudes do not have to be overt or intentional to be harmful.

One student shared the story of entering the law school and being stopped by a security guard asking if they were supposed to be there. Another described being a Resident Advisor and responding to an incident only to be mistaken for a suspect and detained by the police. Others told of being put on the spot during class discussions that touched on racism. While, in many cases, the racial bias was seemingly unintentional, the students still experienced harm. Many also described unsatisfactory results when they tried to address these all-too-common occurrences. In a similar way, the act of sharing these racialized experiences has both benefits and costs.

“Having a town hall of all Black students — young Black future lawyers — is powerful. Despite it all, we’ve still made it here,” says Matz-Carter. “At the same time, with so few of us making up the student population, it’s a lot of pressure.” The way she sees that changing is to have a much more representative student body.

What Happens Next

With more representation in law schools, there will be more representation within the legal system and the potential for change to happen faster, as evidenced by one aspect of the Washington Supreme Court's ruling. “The decision they made is a step forward, but you can also see that around certain things, some of them are still not quite ready to accept the realities of racial bias,” says Yared. “If you look at the opinions on the questioning about the dog, they were divided along racial lines. Justices of color saw it as also racist, while the white justices didn’t. That lived experience makes all the difference in the world.”

Even so, the effects of the ruling are immediate. “What it means for us in this state is that prosecutors will have to change their behavior,” says Ambrose. “It’s on us as we are training lawyers to educate them about what will and won’t be tolerated in the courtroom. Law school graduates are going to be held to a different standard.” The case also highlights the need to increase awareness and training throughout the judicial system on implicit racial bias.

The ruling also impacts pending cases. Whereas objections previously had to be made in the moment, it is now recognized as unrealistic to expect in-the-moment responses concerning the complex biases at play, especially in cases like Bagby’s, where he and a single witness were the only Black people among a room of white lawyers, judges and members of the jury. The ruling makes it possible to look back at pending appealed cases to see where implicit bias may have been a factor.

Above all, changes like this impact real people with real lives. “We’ve heard from Tyler’s lawyer that the appeal decision means a lot to him,” says Ambrose. “He recently finished graduate school and is working in the tech industry.”