Ninth Circuit Decision Affirms Role of Implicit Bias Evidence

On August 31, 2021, the Ninth Circuit Court of Appeals clarified in a published decision that evidence of implicit (or unconscious) bias against a member of a protected class can be probative of whether an entity has engaged in intentional discrimination in violation of Title VI of the Civil Rights Act of 1964. Title VI prohibits any entity that receives federal financial assistance from discriminating on the basis of race, color, or national origin.

While the decision affirmed the underlying district court judgment against appellant Jun Yu, who brought a discrimination action under Title VI against Idaho State University (ISU), the three-judge panel confirmed that plaintiffs in such actions may rely on implicit bias evidence, among other factors, to prove discrimination. The decision cites the amicus brief filed by the Equal Justice Society (EJS) and Strindberg Scholnick Birch Hallam Harstad Thorne in support of Mr. Yu (on behalf of amici Legal Aid at Work, The National Employment Lawyers Association, and Public Rights Project).

Mr. Yu, a Chinese international doctoral candidate at ISU in clinical psychology, was dismissed from his program in 2013 despite a successful dissertation defense and good academic standing. Mr. Yu alleged that the university’s reasons for his dismissal–that his accented English was unsatisfactory for communicating with clients in his internship–constituted intentional discrimination against him based on his race and/or national origin. At trial, Mr. Yu offered and relied in part on expert testimony that he was a victim of “aversive racism,” also commonly referred to as implicit bias.

Agreeing with the First and Fourth Circuits, the Ninth Circuit stated that “[n]ot only are race-based stereotypes relevant to the discrimination inquiry, but such stereotypes need not be overt or even fully conscious to constitute intentional discrimination.” The court further clarified that this question is factual, and ultimately held that in Mr. Yu’s case, the district court permissibly found that ISU did not intentionally discriminate against Mr. Yu.

While this decision importantly affirms the role of implicit bias evidence in establishing Title VI discrimination liability, it also serves as a reminder that there is much more work to be done to secure protections against language and accent bias, both in higher education and more broadly.

Read the Ninth Circuit’s decision here.

Read our amicus brief here.

Read Public Justice Center’s amicus brief that focuses on accent bias here.