Updated: Ninth Circuit Decision in Yu v. Idaho State and the Role of Implicit Bias Evidence

Nov. 15, 2021, Update

Following the Ninth Circuit’s October amended opinion, Appellant Mr. Jun Yu filed a petition for panel rehearing on November 14, supported by an amicus brief filed by EJS and Strindberg Scholnick Birch Hallam Harstad Thorne.

Amici are Berkeley Center on Comparative Equality and Anti-Discrimination Law, Chinese for Affirmative Action, Legal Aid at Work, National Employment Lawyers Association, and Public Justice Center.

Amici’s brief focused on the internal inconsistency between the majority’s ruling and the concurrence. In the October amended opinion, the majority ruled that the issue of whether implicit bias may be probative of intentional discrimination was not necessary to Mr. Yu’s appeal and therefore needed no discussion. Consequently, the October opinion excised the multi-page discussion from the original August opinion that confirmed that implicit bias evidence may, in many cases, have such probative value. However, the concurrence, written by Judge Eric D. Miller and left intact in the amended opinion, discusses the value of implicit bias evidence at length, even opining that such evidence should “rarely, if ever” be admissible. In the August opinion, it was clear that the discussion in the concurrence was a response to the majority’s own lengthy discussion on the value of implicit bias evidence. But in the October opinion, this connection is no longer evident. Because of this, amici contend, the new opinion has the unfortunate potential to cause confusion for future litigants and advocates.

The amicus brief therefore requested a rehearing and offered that there were three things that could mitigate any confusion the October opinion may cause: either 1) reinstating the previously published August opinion, 2) removing the concurrence or otherwise address its inconsistency with the amended opinion, or 3) de-publishing the October amended opinion.

Unfortunately, the Ninth Circuit denied Mr. Yu’s petition for rehearing on November 15. Nevertheless, the state of the law in the Ninth Circuit remains that implicit bias evidence may be probative of intentional discrimination in Title VI disparate treatment cases, among other factors.

Read our amicus brief here.

Oct. 20, 2021, Update

The Ninth Circuit issued and published an amended opinion that now omits the discussion of the probative value of implicit bias evidence in section III.C. The omitted language has been replaced with the following:

We decline to address whether implicit bias may be probative or used as evidence of intentional discrimination under Title VI because resolution of this issue is not necessary to the disposition of this appeal, and we see no benefit that would be served by commenting on it.

The footnote that follows this language reads: “The Court nevertheless appreciates the work of all amici.”

See the amended opinion here.

Originally posted on September 2, 2021

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.

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