C. The Weekly Discussion Assignment

Each week, in addition to their substantive reading, students are assigned materials related to implicit bias, asked to complete one of Harvard's IATs, and write a reflection about the content and/or their experiences related to the material covered. Students are asked to reflect the relationship between the substantive discussion of the week and the impact of implicit biases and stereotypes on that area of the law being studied.

We require students to write a minimum of 150-200 words. The minimum is set to assure that students do a significant reflection. Many students write significantly more than the minimum. We do not usually put a maximum but have on occasion had to ask students to limit their comments to 500 words. However, we do not tell them that unless a problem develops. Students are placed in groups of six. This is one place where your choice of learning management system will be important. We like to use Moodle because not only does it enable us to randomize groups on a weekly basis, but it also makes it possible to restrict access to reading other students' posts to those students who have first submitted their own post. Unlike traditional Socratic method in an in-person classroom, this makes it possible to assure that every student participates in original critical thinking.

We then task students with reading all the posts in their small group and responding to at least three. The responses have a fifty-word minimum to avoid “me too” and “I agree” responses. As in the original postings, many students far exceed this requirement.

In the beginning, students frequently want to say there is no way implicit bias can have an impact. We overcome this by discussing how implicit biases might affect the law. The key to effectively identifying areas in the law where implicit bias might have an impact is to determine where discretion can be exercised. All actors (legislators, administrators, judges, attorneys, clients, staff, witnesses) potentially have discretion, and the existence of discretion allows for the introduction of bias. Each week we ask students to think about the actors involved, look at what discretion they have, what stereotypes exist, and how those stereotypes might be translated into bias.

We have to keep reminding students that when they argue that bias cannot play a role in a particular area of the law, they are necessarily making an argument that no one in that area of law has any discretion. Students may also argue that while discretion might exist, it cannot be exercised in a way influenced by the actor's bias. When a student raises this argument we ask for the student to provide examples; that allows us to again discuss the nature of decision-making, discretion, and the relationship between discretion and bias. Finally, some students may argue that while discretion may exist, the substantive law we are discussing that week cannot be impacted by the stereotypes or the discretion of the actors. This argument usually represents a fundamental misunderstanding of the reading, either on our part or the students. We recommend that the student revisit the reading, and we do so ourselves. We have yet to discover that we have so fundamentally misunderstood the reading, while the student can at that point find a way in which stereotypes might lead to decisions influenced by implicit bias in that week's particular reading. Every class has some students who are so opposed to the idea of the impact of implicit bias on law and policy that they will make all three arguments over the course of the semester, often repeatedly and sometimes in the same post.

As an important note, we do not respond to students' postings until after all the students have responded. It is our experience that other students will raise the appropriate points. Waiting increases the opportunity for students to take responsibility for their own learning and growth. We have also found that comments from other students can often resonate more than comments from the professor. And, finally, waiting allows us to learn from the students' unique experiences and perspectives.

Students are expected to read everyone's posting in their assigned group. We assign a randomized group of six. The platform that we use (Moodle) does that automatically. Students cannot read other students' responses until they post their own (again, a feature in Moodle). This forces every single student to do their analysis and not just play off someone's postings.

Students have to write an initial posting of at least 150 words. Typically, most students do a good job, and many students write significantly more. A student who writes only 150 words is actually writing the bare minimum. If a student wrote the bare minimum and made a good faith effort, we graded them sixteen out of twenty points. The more they write and the more thorough their analysis, the higher the grade.

Initial postings are due at the beginning of the week, generally Monday mornings at 9:00 a.m. without regard to when class meets. We do this so that we can space the various components of the assignment. Having a required written assignment every week before we meet has resulted in students who are generally better prepared for class.

Students are required to read the postings of everyone in their group. Students are expected to write a response to three different postings. Their response has to be at least fifty words. We make this minimum because we do not want, “Me too,” and “I agree,” responses. By requiring minimum words for the response to students, the responses tend to be more thoughtful and analytical. The responses to the initial postings are due by Wednesday at 11:30 p.m. Students are encouraged to continue the conversation at least until Friday at 11:30 p.m. when the discussion forum for the week closes.

Many faculty might want to start slowly, that is, start by not doing every single class or topic but beginning to identify areas where faculty can have a straightforward discussion about implicit bias and only have that discussion four or five times during the semester. For instance, faculty can have an easier discussion about implicit bias in the area of medical error, access to health care, quality control, distributive justice, quarantine and isolation, regulation of health care professionals, professional-patient relationship, informed consent, the liability of health care professionals, liability of health care institutions, regulation of health care institutions, health disparities, health care disparities, discrimination, and the discussion of bioethical issues, such as reproduction and birth, death and dying and genetics, abortion, regulation and research involving human subjects, and cultural competency.

The discussion of implicit bias may be somewhat harder for students to identify in the areas of antitrust, Medicaid, Medicare, insurance, the structure of the healthcare industry, Indian Health Services, and Medicare fraud and abuse. Consequently, placing these topics toward the end of the course helps, as students will have had several weeks of practice.