Jun Yu v. Idaho State University ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JUN YU, No. 20-35582
Plaintiff-Appellant,
D.C. No.
v. 4:15-cv-00430-REB
IDAHO STATE UNIVERSITY,
Defendant-Appellee. ORDER AND
OPINION
Appeal from the United States District Court
for the District of Idaho
Ronald E. Bush, Magistrate Judge, Presiding
Argued and Submitted June 7, 2021
Seattle, Washington
Filed October 20, 2021
Before: Ronald M. Gould, Richard R. Clifton, and
Eric D. Miller, Circuit Judges.
Order;
Opinion by Judge Gould;
Concurrence by Judge Miller
2 YU V. IDAHO STATE UNIVERSITY
SUMMARY *
Title VI
The panel filed: (1) an order withdrawing the opinion
filed on August 31, 2021, and replacing it with a superseding
opinion; and (2) a superseding opinion affirming the district
court’s judgment after a bench trial in favor of Idaho State
University in an action brought under Title VI by Jun Yu.
Yu, a Chinese international student, alleged that the
university intentionally discriminated against him based on
his race or national origin when it dismissed him from a
doctoral program in clinical psychology. At trial, Yu relied
in part on expert testimony that he was a victim of aversive
racism, a theory of prejudice that the parties, the district
court, and the expert compared to unconscious or implicit
racial bias.
The panel held that the district court did not clearly err
in finding that Yu failed to show that the university
intentionally discriminated against him. The panel declined
to address whether implicit bias may be probative or used as
evidence of intentional discrimination under Title VI
because resolution of this issue was not necessary to the
disposition of this appeal.
Concurring, Judge Miller wrote that he joined the
opinion in full. He wrote separately to note several reasons
why testimony of the kind offered in this case will rarely, if
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
YU V. IDAHO STATE UNIVERSITY 3
ever, be admissible. First, expert testimony is not admissible
simply to cast doubt on the credibility of other witnesses, but
that is essentially what the expert did here. Second, before
allowing scientific evidence to be presented to a jury, the
district court must assess whether it rests on tested scientific
principles. Here, though, the expert’s claimed ability to
identify aversive racism did not appear to rest on the kind of
scientific principles that the Supreme Court has demanded.
Third, the expert relied on the use of race-neutral
explanations as evidence of unconscious bias. The
defendant in a Title VI case, however, is required to present
a race-neutral explanation for its action once the plaintiff has
presented a prima facie case of discrimination.
COUNSEL
Ronaldo A. Coulter (argued), Idaho Employment Law
Solutions, Eagle, Idaho, for Plaintiff-Appellant.
Michael E. Kelly (argued), Special Deputy Attorney
General; Shannon M. Graham, Attorney; Kelly Law PLLC,
Garden City, Idaho, for Defendant-Appellee.
Olivia N. Sedwick, Murnaghan Appellate Advocacy Fellow,
Public Justice Center, Baltimore, Maryland, for Amici
Curiae Public Justice Center, Reed T. Korematsu Center for
Law and Equality, Chinese American Progressive Action,
Dr. Russell Jeung, LatinoJustice, and Chinese for
Affirmative Action.
Lisa Hogan and Martha L. Fitzgerald, Brownstein Hyatt
Farber Schreck LLP, Denver, Colorado, for Amici Curiae
National Latinx Psychology Association, Society of Indian
4 YU V. IDAHO STATE UNIVERSITY
Psychologists, Association of Black Psychologists, and
Asian-American Psychological Association.
Eva Paterson, Rau Mona Tawatao, and Christina Alvernaz,
Equal Justice Society, Oakland, California; Kass Harstad
and Erika Birch, Strindberg & Scholnick LLC, Boise, Idaho;
for Amici Curiae Equal Justice Society, Legal Aid at Work,
National Employment Lawyers Association, and Public
Rights Project.
ORDER
The Opinion filed on August 31, 2021, is
WITHDRAWN and replaced with a superseding Opinion
filed concurrently with this Order. Future petitions for
rehearing will be permitted under the deadlines outlined in
Federal Rules of Appellate Procedure 35(c) and 40(a)(1).
IT IS SO ORDERED.
OPINION
GOULD, Circuit Judge:
Jun Yu, a Chinese international student, enrolled in
Idaho State University’s (“ISU”) Doctoral Program in
Clinical Psychology (the “Program”) in 2008. He completed
the requisite four years of instruction and wrote and
successfully defended his dissertation. However, he failed
to complete the last requirement of the Program, satisfactory
completion of a professional internship consisting of 2,000
clinical hours over the course of 11 months. After Yu was
dismissed from the internship, ISU dismissed Yu from the
Program altogether.
YU V. IDAHO STATE UNIVERSITY 5
Yu filed the present suit, alleging that ISU violated
Title VI because it intentionally discriminated against him
based on his race or national origin. At trial, Yu relied in
part on the expert testimony of Dr. Leslie Wade Zorwick.
Dr. Zorwick opined that Yu was a victim of “aversive
racism,” a theory of prejudice that the district court, the
parties, and Dr. Zorwick compare to “unconscious” or
“implicit” bias. After a bench trial, the district court found
that Yu had failed to show that ISU intentionally
discriminated against him. Yu appealed the verdict. We
have jurisdiction pursuant to 28 U.S.C. § 1291, and we
affirm judgment in favor of ISU. The evidence in the record
shows that the district court permissibly found that ISU did
not intentionally discriminate against Yu.
I. FACTUAL AND PROCEDURAL BACKGROUND
Yu began taking courses in the Program in fall 2008.
Although Yu’s academic progress was consistently
evaluated as “satisfactory,” his professional progress
dropped to “unsatisfactory” in his fall 2011 evaluation. A
number of Yu’s supervisors commented on his limited
English language fluency throughout his time at ISU.
Supervisors also commented, in what can only be
characterized as repeated criticisms, that Yu had trouble
“form[ing] alliances” with clients and patients, “need[ed]
more practice counseling patients,” and possessed limited
“ability to adjust treatment.” In light of these comments, the
Clinical Training Committee (the “Committee”), which was
tasked with evaluating the training progress of Yu, expressed
that it could only support Yu applying to professional
internship sites where “his Chinese language is a strength,
rather than a liability.”
During the fall 2011 semester, Dr. John Landers
supervised Yu’s off-site clinical externship. Again, the
6 YU V. IDAHO STATE UNIVERSITY
results of that supervision were not favorable for Yu.
Dr. Landers dismissed Yu from his externship before the
externship was scheduled to end, testifying that Yu was
never able “to grasp the communication nuances that are
required” in a position at his site. Dr. Landers concluded
that, based on the vulnerability of Dr. Landers’s patients,
who were particularly high risk, Dr. Landers could not
“afford to remediate or experiment and try to teach someone
how to do things that they should know how to do with these
particular patients.”
Before he was dismissed from the externship, Yu had
applied for a professional internship through APPIC. 1
Unlike the externship, which can be completed during the
first four years of study in the Program, the professional
internship is completed during the fifth and final year. The
professional internship requires 2,000 hours of clinical work
over the course of eleven months, during which time
students are expected to work independently with clients.
After he was dismissed from the externship with
Dr. Landers, Yu was informed that he had not been matched
with any internships. In Yu’s spring 2012 evaluation, the
Committee set out “[t]hree different internship paths” Yu
could take. First, he could reapply the next November, but
he would need to disclose in his applications that he had been
dismissed from his externship. Second, Yu could propose
his own, comparable internship subject to approval by the
department. Third, he could pursue an internship in China,
the option that the Committee recommended considering his
language difficulties and his intent to return to China after
completing the Program. Yu chose the second option: he
1
APPIC, the Association of Psychology Postdoctoral and Internship
Centers, facilitates “matching” clinical psychologist doctoral students
with internship placement sites.
YU V. IDAHO STATE UNIVERSITY 7
proposed working offsite at the Cleveland Clinic under the
supervision of Dr. Leslie Speer and Dr. Thomas Frazier,
and—separately—Dr. Cheryl Chase.
After only a few days, Dr. Speer told an ISU faculty
member that Yu was not performing at the expected
competency levels for a clinical psychology intern. At the
faculty member’s request, Dr. Speer provided a formal
evaluation, including a “joint written remedial plan” noting
that Yu’s competency would be reevaluated in two months.
Dr. Frazier concluded early in the internship that Yu was not
prepared for the internship and ceased working with him.2
Dr. Speer then completed a second evaluation form on April
1, 2013, explaining that Yu “ha[d] not made progress” and
expressing concerns that he “is unaware of [his] own
limitations [and the] [c]ombination of [the] above factors put
[him] at risk for causing harm to patients.” Yu was
dismissed from the internship on April 3, 2013.
Yu was not then given the opportunity to pursue one of
the other internship options originally presented to him,
although he had already taken steps to arrange an internship
in China. Instead, the Graduate Faculty of the Psychology
Department voted to dismiss Yu from the Program as shown
by its letter dated May 3, 2013. Drawing on the negative
comments that it had received from the several clinical
supervisors noted above and from ISU faculty members, the
Committee concluded that Yu lacked “sufficient
perspective-taking skills and conceptual abilities to become
a clinical psychologist.” When the Graduate Faculty of the
Psychology Department unanimously upheld its decision on
2
The record does not indicate that Dr. Frazier gave Yu notice,
feedback, or a remedial plan.
8 YU V. IDAHO STATE UNIVERSITY
appeal, it expressed that Yu may pose a risk to clients and
patients, even if he were to return to China.
After exhausting his administrative appeals, Yu filed a
complaint against ISU in the United States District Court for
the District of Idaho in September 2015. The district court
denied ISU’s motion for summary judgment on Yu’s Title
VI disparate treatment claim, and held a four-day bench trial.
During this trial, Dr. Zorwick testified as an expert
witness regarding aversive racism. Dr. Zorwick described
aversive racism as the “dominant theory” of modern race-
based prejudice. According to Dr. Zorwick, the theory of
aversive racism rests on the assumption that modern
prejudice no longer manifests through explicit and overt
expressions. Rather, Dr. Zorwick explained that individuals
may simultaneously hold a generalized belief in
egalitarianism while being profoundly influenced by
negative racial stereotypes that they have absorbed through
their socialization. The result of Dr. Zorwick’s aversive
racism theory is that even people who expressly profess to
be egalitarian may treat someone differently because of their
race.
Dr. Zorwick testified that there are five characteristic
hallmarks of aversive racism: (1) “the presence of . . .
ambiguity surrounding decision-making,” (2) “race neutral
explanations after the fact,” (3) “the expression of
microaggressions,” which are small events “that
communicate who is and [is not] valued,” (4) “challenging
interracial interactions and relationships,” and (5) “the use
of post hoc justification.” After reviewing the documents in
this case, Dr. Zorwick purported to identify examples of all
five hallmarks in the interactions between Yu and ISU.
Dr. Zorwick stressed that ISU imposed ambiguous English
fluency standards on Yu, “that [ISU] faculty framed [Yu’s]
YU V. IDAHO STATE UNIVERSITY 9
multilingualism as primarily a liability,” that ISU showed no
“awareness of the structural barriers that . . . Asian
international students face,” and that after ISU decided to
dismiss Yu, it focused only on the negative evaluations he
received. Dr. Zorwick opined that Yu’s race and
international status impacted the way he was treated by the
ISU faculty through a pattern of intentional, repeated choices
made by ISU faculty.
The district court did not dismiss the theories of
Dr. Zorwick summarily or with light treatment. Instead, the
district court, in nearly 20 pages of thoughtful analysis,
concluded that Dr. Zorwick’s testimony did not demonstrate
that Yu was the victim of intentional discrimination.
Similarly, the district court found the remaining testimony in
favor of Yu to be unpersuasive. The district court
determined that Yu did not show that (1) he was qualified to
continue in the Program, or that (2) ISU engaged in “actions
or inactions intended to discriminate against Yu on the basis
of race or national origin.” The district court concluded that
ISU was entitled to judgment in its favor. This appeal
followed.
While this appeal was pending, three amicus briefs were
filed in support of Yu, including a brief submitted
collectively by The Equal Justice Society, Legal Aid at
Work, The National Employment Lawyers Association, and
Public Rights Project (“EJS”), contending that implicit bias
may be probative or used as evidence of intentional
discrimination under Title VI.
II. STANDARD OF REVIEW
“Following a bench trial, the judge’s findings of facts are
reviewed for clear error.” Lentini v. Cal. Ctr. for the Arts,
370 F.3d 837, 843 (9th Cir. 2004) (citation omitted). Federal
10 YU V. IDAHO STATE UNIVERSITY
Rule of Civil Procedure 52(a), which governs our review,
states: “Findings of fact . . . must not be set aside unless
clearly erroneous, and the reviewing court must give due
regard to the trial court’s opportunity to judge the witnesses’
credibility.” Fed. R. Civ. P. 52(a)(6). Under this
“significantly deferential” standard, “we will accept the
lower court’s findings of fact unless we are left with the
definite and firm conviction that a mistake has been
committed.” N. Queen Inc. v. Kinnear, 298 F.3d 1090, 1095
(9th Cir. 2002) (quoting Allen v. Iranon, 283 F.3d 1070,
1076 (9th Cir. 2002)). We will “reverse only if the district
court’s findings are clearly erroneous to the point of being
illogical, implausible, or without support in inferences from
the record.” Oakland Bulk & Oversized Terminal, LLC v.
City of Oakland, 960 F.3d 603, 613 (9th Cir. 2020). “The
district court’s conclusions of law following a bench trial are
reviewed de novo.” Lentini, 370 F.3d at 843 (citing Brown
v. United States, 329 F.3d 664, 671 (9th Cir. 2003)).
The United States Supreme Court has held that “a
finding of intentional discrimination is a finding of fact.”
See Anderson v. Bessemer City, 470 U.S. 564, 573 (1985).
However, “misunderstanding or applying an erroneous
definition of intentional discrimination” may constitute legal
error. See Pullman-Standard v. Swint, 456 U.S. 273, 287–
88 (1982).
Because the issue whether there was intentional
discrimination is a factual one, the clear error standard is
relevant to our appellate review. “[I]n ruling on a motion for
summary judgment, ‘[t]he evidence of the nonmovant is to
be believed, and all justifiable inferences are to be drawn in
his favor.’” Tolan v. Cotton, 572 U.S. 650, 651 (2014) (per
curiam) (citation omitted). But once there has been a trial,
as in this case, the avenues for further review are narrowed.
YU V. IDAHO STATE UNIVERSITY 11
On appeal of a bench trial finding no intentional
discrimination, we have said that “[t]he only issue before us
. . . is whether we can definitely and firmly say that the trial
court clearly erred in finding that [the appellant] failed to
prove discrimination.” Casillas v. U.S. Navy, 735 F.2d 338,
343 (9th Cir. 1984). As the Supreme Court has expressed,
“[t]his standard plainly does not entitle a reviewing court to
reverse the finding of the trier of fact simply because it is
convinced that it would have decided the case differently.”
Anderson, 470 U.S. at 573.
III. DISCUSSION
A.
To prove Title VI discrimination, a plaintiff must
demonstrate that he was “subjected to discrimination” due to
“race, color, or national origin,” by a “program or activity
receiving Federal financial assistance.” 42 U.S.C. § 2000d.
Private parties seeking judicial enforcement of Title VI’s
nondiscrimination protections must prove intentional
discrimination. Alexander v. Sandoval, 532 U.S. 275, 280–
81 (2001). In other words, “Title VI . . . proscribe[s] only
those racial classifications that would violate the Equal
Protection Clause or the Fifth Amendment.” Grutter v.
Bollinger, 539 U.S. 306, 343 (2003) (quoting Regents of
Univ. of Cal. v. Bakke, 438 U.S. 265, 287 (1978) (opinion of
Powell, J.)).
At the trial stage, “the ultimate factual issue in the case”
is “whether the defendant intentionally discriminated against
the plaintiff.” U.S. Postal Serv. Bd. of Governors v. Aikens,
460 U.S. 711, 715 (1983) (citation omitted). The finder of
fact should “consider all the evidence,” id. at 714 n.3, and
look to the “totality of the relevant facts” to determine
whether the defendant has engaged in intentional
12 YU V. IDAHO STATE UNIVERSITY
discrimination, see Washington v. Davis, 426 U.S. 229, 242
(1976).
B.
On appeal, Yu and EJS challenge the following language
employed by the district court: “Dr. Zorwick apparently
would suggest that even the most egalitarian individuals, of
whatever race, can be unaware of their unconscious bias (as
the name describes) but still be intentionally racist. That
simply makes no sense.” But, regardless of what the district
court said regarding unconscious bias, it committed no legal
error even under Yu’s view of the law because it admitted
the testimony of Dr. Zorwick, deemed her qualified on the
topic of aversive racism, and considered her testimony at
great length in its decision. The district court offered
alternative reasoning to give only limited weight to
Dr. Zorwick’s testimony and to support the district court’s
ultimate factual finding that ISU did not intentionally
discriminate against Yu. Cf. Swint, 456 U.S. at 287 (noting
that a district court’s findings of fact “may be set aside” if
they “rest on an erroneous view of the law”) (emphasis
added); see also Gonzales v. Police Dep’t, City of San Jose,
901 F.2d 758, 759 (9th Cir. 1990) (concluding that the
combined effect of two “material legal errors” was
“sufficiently serious to warrant a remand”).
After dedicating nearly 20 pages of its findings of fact to
analyzing Dr. Zorwick’s testimony, the district court found
that—contrary to Dr. Zorwick’s conclusion—Yu was not a
victim of aversive racism. 3 The district court found that the
3
Yu and EJS both contend that the district court erred in failing to
consider Dr. Zorwick’s testimony as probative on the issue of intentional
discrimination. Although we have held that failure to consider highly
YU V. IDAHO STATE UNIVERSITY 13
circumstances of the instant case did not exhibit all the
hallmarks of aversive racism that Dr. Zorwick set out in her
testimony. According to the district court, Dr. Zorwick’s
“testimony about supposed specific examples of [the]
‘hallmarks’ [of aversive racism] simply are not persuasive
against the testimony of those who were involved in the
events and within the context of a doctoral program in
clinical psychology.” The district court was well within its
discretion to disagree with Dr. Zorwick’s conclusions as
they applied to the specific facts of this case. See Martin v.
F.E. Moran, Inc., No. 13 C 3526, 2018 WL 1565597, at *29
(N.D. Ill. Mar. 30, 2018) (considering testimony on implicit
bias at a bench trial but determining that “Plaintiffs failed to
tie [the expert’s] opinions regarding implicit bias to the
individual circumstances surrounding their employment . . .
as required to prove intentional discrimination actually
occurred”). The district court was simply not persuaded by
Dr. Zorwick’s testimony, and that decision was not
“illogical, implausible, or without support in inferences that
may be drawn from the record.” United States v. Hinkson,
585 F.3d 1247, 1263 (9th Cir. 2009) (en banc).
In view of the “totality of the relevant facts,”
Washington, 426 U.S. at 242, we hold that the district court
did not clearly err in finding that Yu failed to show that ISU
intentionally discriminated against him. In other words, the
district court’s finding that ISU did not intentionally
discriminate against Yu is “plausible in light of the record
probative evidence of intentional discrimination may constitute
reversible legal error, we conclude that the district court did consider
Dr. Zorwick’s testimony. See Gonzales, 901 F.2d at 761 (finding legal
error where “there [wa]s no mention of the extensive testimony on the
[defendant]’s violation of the San Jose Affirmative Action Plan”
although such evidence was “highly relevant and probative”).
14 YU V. IDAHO STATE UNIVERSITY
viewed in its entirety.” Husain v. Olympic Airways,
316 F.3d 829, 835 (9th Cir. 2002), aff’d, 540 U.S. 644(2004). Relying on the well-documented feedback from
outside supervisors and from ISU faculty stating that Yu’s
professional progress was unsatisfactory, Yu’s testimony
and general affect in trial, 4 and the credibility of ISU faculty
and supervisors who testified at trial, the district court found
that “[t]he evidence presented in this case failed to persuade
that Yu was dismissed for any reason other than his inability
to gain, or to demonstrate, the degree of clinical competence
expected of a fifth-year clinical psychology doctoral
student.” When substantial testimony or other evidence
supports the factual determination, as it does here with
substantial evidence of supervisor criticism and adverse
faculty evaluation, we cannot reverse the court’s judgment
based on that factual determination in the absence of some
supervening legal error or clear error. See Oakland Bulk,
960 F.3d at 613. On appeal, Yu points to no evidence in the
record that would render this finding clearly erroneous.
In support of his discrimination claim, Yu emphasizes
supervisors’ comments on his English fluency. He contends
that such comments constitute direct evidence of linguistic
discrimination, which is a proxy for unlawful national origin
discrimination. See, e.g., In re Rodriguez, 487 F.3d 1001,
1008–09 (6th Cir. 2007). But the district court found that
“[e]ach reference to [Yu’s] spoken English related in some
manner, either expressly or implicitly, to his difficulties
demonstrating clinical competence, including a difficulty in
establishing rapport and forming therapeutic relationships
with English-speaking clients.” Yu offers—and the record
4
The district court found that “Yu said nothing at trial to suggest he
held himself accountable in any way for his well-documented poor
clinical performance and numerous negative reviews.”
YU V. IDAHO STATE UNIVERSITY 15
reveals—no evidence or argument that leaves us with a
“definite and firm conviction that a mistake has been
committed.” See Easley v. Cromartie, 532 U.S. 234, 242
(2001) (quoting United States v. U.S. Gypsum Co., 333 U.S.
364, 395 (1948)). We stress that, in the field of clinical
psychology, the ability to communicate effectively is
imperative, as reflected in standard criteria under which Yu
and his classmates were evaluated, including being sensitive
to subtle patient signals, building rapport, and forming
alliances with patients.
Yu also challenges the district court’s finding that he did
not meet ISU’s legitimate educational expectations. Again,
we see no reason to disturb the district court’s factual
finding. Yu asserts that he would have successfully
graduated had ISU (1) complied with ethical norms, 5
(2) complied with cultural competence standards, and (3) not
engaged in aversive racism. But Yu only summarizes the
evidence and arguments presented to the district court at
trial, perhaps seeking an opportunity to re-try his case before
this court on appeal. Given the highly deferential standard
afforded to a district court’s factual findings at a bench trial,
5
Yu contends that ISU “substantial[l]y depart[ed] from accepted
academic norms,” a standard employed in due process jurisprudence.
See Regents of Univ. of Mich. v. Ewing, 474 U.S. 214, 225 (1985). The
district court dismissed Yu’s due process claims on summary judgment,
holding that the Eleventh Amendment precluded jurisdiction over them.
The district court assumed, without deciding, that the standard was
relevant and determined that ISU did not substantially depart from
academic norms, and we discern no clear error in that determination. We
thus decline to reach the legal question of whether the “substantially
departed” due process standard is relevant to Title VI intentional
discrimination.
16 YU V. IDAHO STATE UNIVERSITY
we decline to extend such an opportunity. See Anderson,
470 U.S. at 573.
C.
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. 6
AFFIRMED.
MILLER, Circuit Judge, concurring:
This case turns on a factual question of a kind that is
common in discrimination cases: Did Idaho State University
dismiss Jun Yu from its doctoral program in clinical
psychology because of his poor performance (as ISU
maintained) or because of his race or national origin (as Yu
alleged)? The district court held a four-day bench trial during
which it examined documentary evidence and heard live
testimony, including from ISU decision makers, Yu himself,
and various expert witnesses. One of those experts was
Dr. Leslie Wade Zorwick, a psychologist who opined that
ISU’s decision making was affected by what she called
“aversive racism”—that is, “unconscious” or “implicit”
racial bias. After hearing all of the evidence, the district court
found that ISU had not discriminated against Yu because of
his race or national origin.
6
The Court nevertheless appreciates the work of all amici.
YU V. IDAHO STATE UNIVERSITY 17
The court affirms the district court’s judgment, and I join
its opinion in full. I write separately to note several reasons
why expert testimony of the kind offered in this case will
rarely, if ever, be admissible.
First, to be admissible, expert testimony must be helpful
to the trier of fact. Fed. R. Evid. 702(a). Because it is the role
of the trier of fact to assess credibility, expert testimony is
not admissible simply to tell the jury that one party’s
witnesses should be believed and the other party’s should
not. See, e.g., United States v. Dorsey, 45 F.3d 809, 815 (4th
Cir. 1995) (“[E]xpert testimony can be properly excluded if
it is introduced merely to cast doubt on the credibility of
other eyewitnesses, since the evaluation of a witness’s
credibility is a determination usually within the jury’s
exclusive purview.”); see also United States v. Hill, 749 F.3d
1250, 1263 (10th Cir. 2014); United States v. Rincon,
28 F.3d 921, 926 (9th Cir. 1994).
That is essentially what Dr. Zorwick did here. She
explained that because of modern “social norms” against
“the explicit and overt expression of prejudice,” people may
“know negative stereotypes and be profoundly influenced by
those negative stereotypes they’ve learned about race”
without admitting it. She added that people “tend to come up
with an explanation for our motives that makes us look
good,” and that “that’s a reason why . . . we really need to
pay attention to behaviors to decide if those motives that are
explicitly expressed are maybe a little bit suspect.” In other
contexts, we have held that an expert’s observations on a
psychological phenomenon explaining a class of behavior
can be admitted to assist the jury. See, e.g., United States v.
Halamek, 5 F.4th 1081, 1087–89 (9th Cir. 2021); United
States v. Vallejo, 237 F.3d 1008, 1020 (9th Cir. 2001);
United States v. Bighead, 128 F.3d 1329, 1330–31 (9th Cir.
18 YU V. IDAHO STATE UNIVERSITY
1997) (per curiam); United States v. Antone, 981 F.2d 1059,
1062 (9th Cir. 1992). Testimony about aversive racism or
unconscious bias could, in principle, serve a similar
function—at least to the extent that it tells the jury something
beyond the obvious, commonsense fact that people’s stated
motives are not always their true motives. See United States
v. Fuentes-Cariaga, 209 F.3d 1140, 1142 n.3 (9th Cir. 2000)
(district court may exclude expert testimony “about an issue
within the ken of the jury’s knowledge”).
But Dr. Zorwick did not stop there. She went on to opine
that an observer can identify behavior that is influenced by
unacknowledged stereotypes—or “aversive racism”—by
looking for the “five characteristic hallmarks that tend to be
present if aversive racism is at play”: (1) “the presence of a
lot of ambiguity surrounding decision-making,” (2) “the use
of race neutral explanations after the fact,” (3) “the
expression[] of microaggressions,” (4) “really challenging
interracial interactions and relationships,” and (5) “the use
of post hoc justification.” Because “each of these hallmarks”
was present in this case, Dr. Zorwick concluded that “Yu’s
race and international status impacted the way he was treated
by the faculty in the Idaho State University Clinical
Psychology Program,” or, in other words, that the claims of
ISU’s witnesses that they acted for race-neutral reasons
should not be believed.
That testimony is similar to purported expert
assessments of credibility that courts routinely exclude. For
example, in Nichols v. American National Insurance Co.,
154 F.3d 875 (8th Cir. 1998), the Eighth Circuit held that a
district court erred in allowing a psychiatric expert to testify
about the concepts of “psychiatric credibility, malingering,
recall bias, and secondary gain” and to use those concepts
“to indicate that [the plaintiff’s] version of the facts was
YU V. IDAHO STATE UNIVERSITY 19
inconsistent and changed over time and that it was tainted by
bias and desire for financial gain.” Id. at 883–84. The court
explained that those “were inferences for the jury to draw
from the admissible evidence before it,” and that the expert
had “impermissibly instructed the jury on how to weigh that
evidence.” Id. at 884. Similarly, we have held that a district
court erred in permitting a psychological expert to testify
“that the complaining witnesses were able to distinguish
reality from fantasy and truth from falsehood” because the
effect of the testimony was “to usurp the jury’s fact-finding
function.” United States v. Binder, 769 F.2d 595, 602 (9th
Cir. 1985), overruled on other grounds by United States v.
Morales, 108 F.3d 1031, 1035 n.1 (9th Cir. 1997) (en banc);
accord Nimely v. City of New York, 414 F.3d 381, 398 (2d
Cir. 2005) (holding that the district court erred in admitting
testimony of an expert who “stated that he ‘rejected’ the
possibility that [law-enforcement witnesses] had lied, and
explained various reasons why police officers have no
incentive to give false statements in excessive force cases”).
Second, Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579 (1993), requires that before allowing scientific
evidence to be presented to a jury, the district court must
assess “the scientific validity . . . of the principles that
underlie a proposed submission.” Id. at 594–95. “[A] key
question to be answered in determining whether a theory or
technique is scientific knowledge that will assist the trier of
fact will be whether it can be (and has been) tested.” Id.
at 593. “Additionally, in the case of a particular scientific
technique, the court ordinarily should consider the known or
potential rate of error.” Id. at 594. The same framework also
applies in evaluating the reliability of “technical” and “other
specialized knowledge.” Kumho Tire Co. v. Carmichael,
526 U.S. 137, 147 (1999) (quoting Fed. R. Evid. 702(a)).
20 YU V. IDAHO STATE UNIVERSITY
Dr. Zorwick’s claimed ability to identify aversive racism
does not appear to rest on the kind of tested scientific
principles that the Supreme Court has demanded.
Dr. Zorwick’s only explanation of the basis for her
methodology was the vague assertion that “[r]esearch finds
that there are five characteristic hallmarks that tend to be
present if aversive racism is at play.” She did not say what
empirical testing had been conducted to demonstrate that
applying those five factors allows for the accurate
identification of aversive racism in a particular case.
Dr. Zorwick noted that other scholars of aversive racism
“sometimes use[] the language of race-based attitudes as
being unconscious or implicit.” There is an extensive
literature on implicit associations related to race, but studies
of the phenomenon have yielded little evidence that such
associations can be measured in a way that is useful for
predicting biased behavior in individual cases. See, e.g.,
Frederick L. Oswald et al., Predicting Ethnic and Racial
Discrimination: A Meta-Analysis of IAT Criterion Studies,
105 J. Personality & Soc. Psych. 171 (2013); Michael R.
Andreychik & Michael J. Gill, Do Negative Implicit
Associations Indicate Negative Attitudes?, 48 J.
Experimental Soc. Psych. 1082 (2012). Indeed, even the
leading advocates of implicit-association testing concede
that “attempts to diagnostically use such measures for
individuals risk undesirably high rates of erroneous
classifications.” Anthony G. Greenwald et al., Statistically
Small Effects of the Implicit Association Test Can Have
Societally Large Effects, 108 J. Personality & Soc. Psych.
553, 557 (2015). But Dr. Zorwick did not say anything about
what testing had shown the potential rate of error of her
approach to be. Instead, she refused to acknowledge any
possibility of error: When asked “how certain are you of
your conclusion?,” she answered simply, “I am certain.”
YU V. IDAHO STATE UNIVERSITY 21
Third, the testimony offered here is objectionable
because two of the factors set out by Dr. Zorwick in her five-
factor test were “the use of race neutral explanations after
the fact” and “the use of post hoc justification.” The district
court correctly noted that those two factors are duplicative,
but there is a more serious problem. Once a plaintiff has
presented a prima facie case of discrimination, the defendant
is required to present a race-neutral explanation for its
action; if it fails to do so, it will effectively concede liability.
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–03
(1973). It cannot be that a defendant’s effort to defend itself
in litigation should be considered as evidence of its liability.
Treating it as such would redefine the governing legal
standard under the guise of an expert opinion.
Although Dr. Zorwick’s testimony on this point was not
entirely clear, it is possible that she meant to refer only to
pretextual—that is, false—explanations: “people pointing to
things that, ‘Oh, that’s why we did it,’ but it’s not how they
felt at the time.” But if that is what Dr. Zorwick meant, then
her test is question-begging. Obviously, the fact that a
defendant’s explanation is pretextual constitutes
circumstantial evidence supporting an inference that the true
reason was a discriminatory one. Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 147 (2000). The point
of the trial was to determine whether ISU’s proffered race-
neutral reason for Yu’s dismissal was or was not pretextual.
An expert should not be permitted to opine on that question
using a methodology that requires her to assume its answer.
Stephens v. Union Pac. R.R. Co., 935 F.3d 852, 856–57 (9th
Cir. 2019).
All that said, I do not fault the district court for admitting
Dr. Zorwick’s testimony in this case. ISU did not object to
the testimony, no doubt because “the Daubert gatekeeping
22 YU V. IDAHO STATE UNIVERSITY
obligation is less pressing in connection with a bench trial,”
where the potential for prejudice or confusion is reduced.
Volk v. United States, 57 F. Supp. 2d 888, 896 n.5 (N.D. Cal.
1999). And the district court correctly recognized that the
testimony had minimal persuasive value. But when the
opposing party objects, a court should not permit testimony
of this kind to be presented to a jury.