EJS Brief in Yu v. Idaho State University Argues Implicit Bias is Probative of Intentional Discrimination Under Title VI

The Ninth Circuit Court of Appeals accepted an amicus brief (https://bit.ly/3wLmnwS) by the Equal Justice Society (EJS) and Strindberg & Scholnick, LLC filed in Yu v. Idaho State University.

The brief supports a former doctoral psychology candidate’s national origin discrimination suit arguing that implicit bias is probative and may be used as evidence of intentional discrimination under Title VI of the Civil Rights Act of 1964.

The hearing on the appeal was on June 7, 2021, and oral argument can be viewed at  https://youtu.be/S697mwwedHU?t=4380.

The brief was filed by Kass Harstad and Erika Birch of Strindberg & Scholnick, LLC, and Eva Paterson, Mona Tawatao and Christina Alvernaz, of the Equal Justice Society on behalf of institutional amici Legal Aid at Work, the National Employment Lawyers Association, and Public Rights Project.

Jun Yu was a Chinese international student and doctoral candidate in clinical psychology at Idaho State University. Despite Mr. Yu’s successful dissertation defense and good academic standing, he was dismissed from the program in 2013.

Mr. Yu’s dismissal came down without warning or opportunity for formal remediation, inconsistent with ISU’s regular practice of providing students at risk of dismissal with a warning and formal remediation. Instead, ISU pointed to Mr. Yu’s accented spoken English as a reason for his dismissal, citing concerns about his ability to provide effective client support.

Mr. Yu had plans to return to China to pursue his psychology career, an intention of which the school was aware. The trial court nevertheless ruled in favor of ISU, stating that the implicit bias expert testimony “apparently would suggest that even the most egalitarian individuals, of whatever race, can be unaware of their unconscious bias . . . but still be intentionally racist. That simply makes no sense.”

“The trial court’s view is contrary to Supreme Court precedent, which has held that mal-intent or deliberate and overt racism are not necessary components of an intentional discrimination claim,” stated the amici. Instead, the brief argues that intentional discrimination is a question of whether an employee was treated less favorably because of their protected class, and that implicit bias is often used as evidence of how unfavorable treatment is discriminatory, from the Ninth Circuit to the Supreme Court.

The institutional amici: Legal Aid at Work; the National Employment Lawyers Association; and Public Rights Project. 

The brief was filed by Kass Harstad and Erika Birch of Strindberg & Scholnick, LLC; and Eva Paterson, Mona Tawatao and Christina Alvernaz, of the Equal Justice Society.

Public Justice Center authored another amicus brief (https://bit.ly/3vK9AuD) on their own behalf, along with amici the Fred T. Korematsu Center for Law and Equality, Chinese American Progressive Action, Dr. Russell Jeung, LatinoJustice, and Chinese for Affirmative Action. This brief provided a history of discrimination against people of Asian descent and the role of anti-Asian stereotyping, focusing on accent bias as a form of linguistic discrimination in employment. The brief also describes and analyzes implicit bias in higher education and in the legal system, and identifies language in the district court’s own decision as being influenced by accent bias.