Jun Yu v. Idaho State University

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.