declining to address the plaintiffs’ Title VI claim because it was unnecessary given the resolution of the identical claim under Title VII and therefore, anything written about the Title VI claim would constitute “an advisory opinion”
How later courts described this case
- declining to address the plaintiffs’ Title VI claim because it was unnecessary given the resolution of the identical claim under Title VII and therefore, anything written about the Title VI claim would constitute “an advisory opinion”
- ruling on whether Title VI and VII apply even though the issues were unnecessary to the disposition of the case
- noting approval of cases “refusing to award costs to a prevailing party” on the basis of “the losing party’s limited financial resources”
- “[D]ivesting district courts of discretion to limit or to refuse such overwhelming costs in important, close, but ultimately unsuccessful civil rights cases like this one might have the regrettable effect of discouraging poten- tial plaintiffs from bringing such cases at all.”
Written by the judges who cited it.
The opinion
TASHIMA, Circuit Judge,
dissenting:
Among the issues raised by plaintiffs on appeal are the procedural errors (“procedural ] taint[ ]”) which “resulted in] the unreported influence of Dr. Klein.” Plaintiffs explain their contention as follows:
We do not know the extent of Dr. Klein’s ex parte communications with the court, nor the influence these communications had with the court, nor the extent to which [his] views and unfamiliarity with employment testing standards could have been tempered by the heat of cross-examination. We know none of this because the district court did not require any report of the “advice” he received from Dr. Klein and, most importantly, denied Plaintiffs their right to cross-examine the court’s expert.
Appellants’ Opening Brief at 51. Because I cannot agree with the majority’s cursory and mistaken treatment of the technical advisor issue in Part III, I respectfully dissent.
I.
Courts and jurists have long recognized that the “law should in some way effectively use expert knowledge wherever it will aid in settling disputes.” Learned Hand, Historical and Practical Considerations Regarding Expert Testimony, 15 Harv. L'.Rev. 40 (1901). “The only question is as to how it can do so best.” Id. I agree with the majority that the district court retains the inherent authority to appoint a technical advisor in especially complex cases. Maj. op. at 591. As Justice Brandéis, speaking for the Court, noted more than 80 years ago:
Courts have (at least in the absence of legislation to the contrary) inherent power to provide themselves with appropriate instruments required for the performance of their duties. This power includes authority to appoint persons unconnected with the court to aid judges in the performance of specific judicial duties, as they may. arise in the progress of a cause.
Ex Parte Peterson, 253 U.S. 300 , 40 S.Ct. 543 , 64 L.Ed. 919 (1920) (approving appointment of an auditor and report to be made by him). In exercising that power, however, the district court must observe certain, minimal, procedural safeguards in order to insure that the advisor is unbiased and impartial, and that his participation is properly confined. Here, at the district court’s invitation, a question of the advisor’s bias and partiality was raised, but not resolved. The record is also completely devoid of any evidence of what role Dr. Klein played in the proceedings, the scope and basis of his influence, what materials or knowledge he may have called on in bringing that influence to bear, and what part his knowledge, expertise, and advice played in the district court’s ultimate finding that CBEST is a valid test under Title VIL I would therefore vacate the judgment and remand to the district court for it to make findings on the bias and partiality issue, and to explain Dr. Klein’s role, in accordance with the guidelines set forth below.
Even though we have never held explicitly that district courts may appoint technical advisors outside the confines of Federal Rule of Evidence 706, 1 courts and com *610 mentators agree that a trial court’s inherent authority to appoint a technical advisor has not been displaced by the federal rules. See Reilly v. United States, 863 F.2d 149, 158 (1st Cir.1988); Note, Improving Judicial Gatekeeping: Technical Advisors and Scientific Evidence, 110 Harv. L.Rev. 941, 949-50 (1997) (hereinafter “Technical Advisors ”); cf. Hall v. Baxter Healthcare Corp., 947 F.Supp. 1387 , 1392 & n. 8 (D.Or.1996) (appointing technical advisor under “inherent authority” of Fed.R.Evid. 104). Although the use of a technical advisor should be “the exception and not the rule,” expert advice can be quite useful in a trial that involves unusually complex issues in fields “beyond the regular questions of fact and law with which judges must routinely grapple.” Reilly, 863 F.2d at 156-57 . Moreover, because the district court is in a better position to decide if the appointment of a technical advisor is warranted, we should defer to its discretion with respect to whether or not to appoint one. See id. (reviewing appointment of technical advis- or for an abuse of discretion).
The majority correctly concludes that this is one of those “rare cases” in which the appointment of a technical advisor under the inherent authority of the court is justified. Maj. op. at 590; see Reilly, 863 F.2d at 156 . As the original panel opinion pointed out, this case “involves the highly technical field of psychometrics, and presents problems of unusual complexity beyond the normal questions ... with which judges routinely grapple.” Association of Mexican-American Educators v. California, 195 F.3d 465 , 492-93 (9th Cir.1999), reh’g en banc granted, 208 F.3d 786 (9th Cir.2000).
II.
After three years of discovery, the district court found that it needed guidance on a host of complex, factual issues. As the district court noted in its order appointing technical advisor, “the Court comes face to face with many prickly problems requiring expertise in the esoteric fields of education and psychometrics including knowledge of theories about educational measurement and testing, cognitive psychology, statistics, and other fields pertaining to the CBEST and other cases.” It then appointed Dr. Stephen P. Klein, a highly-respected test validation expert, as its “Technical Advisor.” Although I agree with the majority that the district court did not abuse its discretion in deciding to appoint a technical advisor, that is only the beginning of our inquiry, and not its end, as the majority seems to think.
The order appointing the technical ad-visor provides that he is to review all of the “direct testimony of the experts heretofore furnished to the Court,” 2 briefs, selected pleadings, and depositions. Dr. Klein was also to be present in court during expert testimony, “take such notes as he deems proper and confer ex parte with the Court from time to time.” It also noted that “[h]is role will be similar to that of a judicial clerk and, therefore, he will not be available for communication with or questioning by the parties.” The order nowhere stated, however, what Dr. Klein was to do with all of this evidence and other information he was directed to absorb, except to “confer ex parte with the Court from time to time.”
The use of a technical advisor is not without risks. First, whenever a court appoints a technical advisor, there is a danger that the court will rely too heavily on the expert’s advice, thus compromising its role as an independent decisionmaker *611 and the requirement that its findings be based only on evidence in the record. This risk is especially salient if the contents of the communications between the trial judge and the advisor is hidden from the parties (and appellate review), and where the parties have no opportunity to respond to the advisor’s statements. See Technical Advisors, 110 Harv. L.Rev. at 957. Second, experts in the relevant field, particularly if it is a narrow and highly-specialized one, may be aligned with one of the parties; therefore, the district court must make every effort to ensure the technical advisor’s neutrality, lest the advisor develop into, or give the appearance of being, an advocate for one side. Without some safeguards, the parties’ confidence in the fairness of the trial will erode.
Thus, once the district court has appointed a technical advisor, its discretion concerning the advisor’s role in the trial should not be unfettered. We have never had occasion to give definitive guidance to district courts on the use of technical ad-visors and this case clearly demonstrates why we should. 3 Simply put, we are utterly unable, on this record, to review the propriety of Dr. Klein’s advice to the district court because we have no idea what role he played in the district court’s fact-finding process. As indicated above, the district court laid out Dr. Klein’s evidence-gathering duties in its appointing order, but that order does not state what Dr. Klein was to do with that store of knowledge. There is no evidence in the record that would provide any hint about the nature, scope, or substance of Dr. Klein’s advice. We therefore do not know whether and, if so, to what extent, Dr. Klein may have impermissibly influenced the court’s ultimate finding that CBEST is a valid test under Title VII: Did he draw upon his own expertise and knowledge of test validation to discount or contradict the opinion of a testifying expert on either side? Did he explain to the court why CBEST was valid, based either on his own opinion and/or on information (such as the scientific literature in the field, including his own writings) not in the record? Or was he asked only to review the court’s proposed findings for technical accuracy? Moreover, plaintiffs have alleged that Dr. Klein was biased in favor of defendants and the district court did little to allay plaintiffs’ concerns.
III.
Although we need not require strict adherence to any specific procedures, I would hold that a district court minimally must: (1) utilize a fair and open procedure for appointing a neutral technical advisor; (2) address any allegations of bias, partiality, or lack of qualification; (3) clearly define and limit the technical advisor’s duties; 4 (4) make clear to the technical advisor that any advice he gives to the court cannot be based on any extra-record information; and (5) make explicit, either through an expert’s report or a record of ex parte communications, the nature and content of the technical advisor’s advice. By adopting these minimal safeguards, the parties can be assured that the technical advisor appointment process is fair and that the technical advisor does not exercise undue influence on the district court. These procedures will also enable meaningful appellate review.
A. Neutrality of the Technical Advis- or
The district court, of course, should have wide latitude when choosing a technical advisor, who, after all, is retained to aid the court’s understanding of the difficult and complex technical issues presented in the case. The parties, however, should be given an opportunity to object to any pro *612 posed appointment based on bias, partiality, or lack of qualification. See Reilly, 863 F.2d at 159 ; Technical Advisors, 110 Harv. L.Rev. at 954-55; cf. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 , 592 & n. 10, 113 S.Ct. 2786 , 125 L.Ed.2d 469 (1993) (noting that, with respect to proffered scientific evidence, the trial judge must determine “the qualification of a person to be a witness”) (quoting Fed. R.Evid. 104(a)). While the district court is not required to reject the appointment of a technical advisor merely because one side or the other objects, it must adequately address any concerns of bias, partiality, or lack of qualification that the parties raise.
Here, the district court properly allowed both sides an opportunity to review Dr. Klein’s curriculum vitae and to submit written interrogatories to him concerning his experience and background. 5 Plaintiffs objected to Dr. Klein’s appointment on the grounds that: (1) he had worked closely with the California Commission on Teacher Credentialing, one of the defendants in this case; (2) his private practice focuses on supporting certification exams; (3) he has taken positions on issues raised in the case; and (4) he had worked closely with one of defendants’ key experts, Dr. Meh-rens.
We are unable to discern from the record whether any of these allegations are well-founded, but it is clear that the district court did not adequately address these objections. After plaintiffs objected to the appointment, the district court overruled the objection, stating that plaintiffs would have the “opportunity to examine him fully with respect to any views that he may have.” This response to the objection might have been adequate, had the district court actually given plaintiffs the promised opportunity. As it turned out, however, the court’s response to plaintiffs concerns was wholly inadequate because the district court later decided that it would not have Dr. Klein testify. There is nothing in the record to indicate that the district court seriously considered plaintiffs’ objections, 6 or that it took any other measure to insure Dr. Klein’s neutrality, such as making its own independent inquiry. This omission is all the more troubling because the objections, if well-founded, might well provide valid bases for disqualifying Dr. Klein from serving as a neutral technical advisor.
To avoid this situation in the future, I would require, absent mutual agreement by the parties on an acceptable technical advisor, that the district court meaningfully address, on the record, any colorable objection to the appointment of a specific technical advisor. Because the district court failed adequately to address plaintiffs’ objections to Dr. Klein’s appointment, I would remand to the district court for this determination to be made on the record.
B. The Technical Advisor’s Role
The role of a technical advisor also should be carefully defined and limited to reduce the risk that the advisor will usurp the role of the court as factfinder, see Technical Advisors, 110 Harv. L.Rev. at 955, or of even giving that appearance. To this end, the district court should lay out the specific duties of the technical advisor, keeping in mind that the advisor’s role should be that of “sounding board” and tutor who aids the court in understanding the “jargon and theory” relevant to the technical aspects of the evidence. Reilly, 863 F.2d at 158 ; see Technical Advisors, 110 Harv. L.Rev. at 955-56. This “job description” should make explicit that the technical advisor is not to contribute evi- *613 denee (unless called as a witness) or to be an advocate on behalf of either party. Id., 110 Harv. L.Rev. at 955; see Reilly, 863 F.2d at 157 . If the parties, the court, and the advisor all are clear on the advisor’s role, there will be less likelihood that the advisor will overstep his bounds or that the parties may be led to believe that he has. Moreover, a “job description” that highlights those areas in which the district court needs aid or clarification may help to focus the parties’ attention on issues that are important to the court and, therefore, aid the parties in addressing those concerns directly. See Technical Advisors, 110 Harv. L.Rev. at 955.
When the district court appointed Dr. Klein, as noted above, it ordered that he was “to review all the direct testimony of the experts, ... the parties’ briefs and proposed findings of fact and conclusions of law, and other such documents ... as seems appropriate.” It also explained that Dr. Klein should listen to the expert testimony, take notes, and confer with the court ex parte when necessary. The district court, however, failed to complete the list of Dr. Klein’s critical duties. It did not describe the nature or scope of its consultations with Dr. Klein, e.g., whether his role was limited to reviewing the court’s proposed findings for technical accuracy, whether he was to evaluate the opinions of the testifying experts, or whether he was to give the court his own, independent, expert opinion.
In the future, district courts should be more specific concerning the technical ad-visor’s precise role. For example, the court could explain which technical concepts it finds troubling, and limit the expert’s role to helping it comprehend those technical issues. See Hall v. Baxter Healthcare Corp., 947 F.Supp. at 1393-94 (listing specific questions submitted to the technical advisors). The district court may even find it helpful to invite the parties to participate in defining the expert’s duties to reduce the risk of perceived unfairness and to help focus the issues. See Technical Advisors, 110 Harv. L.Rev. at 955.
C. Making a Record
Finally, the nature and scope of the advice provided to the district court by the technical advisor should be recorded in some manner. While I would not prescribe a mandatory procedure for making that record, such as a reporter’s transcript of all ex parte conferences between the court and the technical advisor, obviously, some documentation is required — such as a report by the advisor, a summary of the advice given, or the court’s statement on the record — of the court’s interaction with the technical advisor. 7
The district court, as well as other courts, likened the duties of a technical advisor to those of a law clerk and, thus, reasoned that the communications between the court and advisor may be kept confidential, i.e., concealed from the parties and the appellate court. See Reilly, 863 F.2d at 158 . While there are some similarities between a law clerk and a technical advis- or, that analogy is limited. 8
In some important respects, a technical advisor is quite unlike a law clerk. A law clerk’s function is to aid the judge in researching legal issues in cases pending before the court. Because the judge is an expert in the law and fully understands *614 legal theory and analyses, it is unlikely, to say the least, that a law clerk will imper-missibly usurp the judicial function. On the other hand, a technical advisor is brought in precisely because the judge is not familiar with the complex, technical issues presented in the case. See id. at 157 (“appointment of a technical advisor must arise out of some cognizable judicial need for specialized skills”). There is therefore an understandable concern that the technical advisor’s opinion will carry undue weight with the judge. Cf. Daubert, 509 U.S. at 595 , 113 S.Ct. 2786 (noting that “[ejxpert evidence can be both powerful and quite misleading because of the difficulty in evaluating it”) (internal quotations and citation omitted). In short, a judge can filter out “bad” legal advice or research from a law clerk; he or she is ill-equipped, however, to do the same with “bad” technical advice. Moreover, resolution of legal issues is committed to the judge qua judge and is subject to de novo review. On the other hand, factual issues, no matter how technical, are committed to the factfinder and, to be reviewed properly, must be based on the record made in the trial court.
Whatever method the court employs in making a record of the technical advisor’s advice and counsel, there is no reason why a neutral technical advisor’s advice should be shrouded in absolute secrecy. Concealing the nature of that expert advice can only erode confidence in the court’s role as a neutral and independent decisionmaker.
IV.
These procedural safeguards are not especially burdensome and should not be difficult to apply. They are, however, essential in order to insure that the parties have confidence that the technical advisor is unbiased, impartial, and qualified, and that he has not unduly influenced the proceedings. Such minimal procedural safeguards are also required so that any challenge to the appointment of a technical advisor or to the degree of his participation in the case can meaningfully be reviewed on appeal. Here, other than a short order appointing Dr. Klein, the district court provided no explanation of his role. It also failed adequately to address the parties’ written objections to Dr. Klein’s neutrality. 9
For the foregoing reasons, I would vacate the judgment and remand this case to the district court for its resolution of these *615 issues and for such further proceedings as may thereafter be necessary. 10
. I agree with the majority that Rule 706(a) has no application here because that provision only applies to testifying expert witnesses, and the district court did not call Dr. Klein to testify. The shortcoming in regard to Rule 706 was in the court's leading the par *610 ties to believe right up to the end of the trial that Dr. Klein would be called and then not calling him. The errors that the court did commit might well have been remedied had Dr. Klein been called as a witness and subjected to cross-examination.
. As is not uncommon in bench trials, the district court required the direct testimony of expert witnesses to be submitted in written form and furnished to the court before the commencement of trial.
. It is thus unfortunate that the majority gives the issue such cursory treatment.
. To slate conclusorily that the technical ad-visor's "role will be similar to that of a judicial law clerk” is insufficient. See discussion in Part III.C, infra.
. Although it struck some of plaintiffs' interrogatories and refused to require Dr. Klein to respond to others designed to probe Dr. Klein’s partiality.
. Interestingly, defendants also expressed some concern that Dr. Klein’s writings indicated a “strong predisposition for teacher assessment alternatives which are neither economically viable nor realistically feasible in California.” There is also no indication that the district court addressed this concern.
. In Reilly , the court suggested that a technical advisor should file an affidavit attesting to his compliance with the job description after his services have been rendered. See 863 F.2d at 159-60 . This is one of a number of ways that a district court could ensure that the technical advisor does not exert any inappropriate influence on the outcome of the trial. See also Hall v. Baxter Healthcare Corp., 947 F.Supp. at 1393-94 (setting forth in detail the technical advisors’ participation in the case, including the specific questions they were asked to answer); id. at 1394 & n. 17, 1435-76 (setting forth as appendices the technical advisors’ reports to the court).
. I do agree that the unique role played by a technical advisor justifies ex parte communications between the judge and the advisor, subject to the limitations explained above.
. The majority acknowledges that there is a "relative paucity of information in the record about Dr. Klein’s interaction with the district court." Maj. op. at 591. In spite of this deficiency in the record, it is willing to "assume that the district court did its job properly when we lack evidence to the contrary.” Id. at 591. That is not the law. The law is that we require a sufficient record and findings so that we can conduct a meaningful review. When the record is incomplete through no fault of the appellant, as is the case here, we should remand to permit a record and findings to be made so that we are able properly to review the issue. See, e.g., Morris v. Woodford, 229 F.3d 775, 781 (9th Cir.2000) ("We also emphasize that a more developed factual record with regard to those claims is necessary for meaningful appellate review.”) (Graber, J.); Merrill v. Apfel, 224 F.3d 1083, 1086 (9th Cir.2000) (remanding to the Commissioner of Social Security where record lacked finding on whether claimant met disability requirement); United States v. Parrilla, 114 F.3d 124, 125 (9th Cir.1997) ("because the district court ... made no specific factual findings regarding the evidence of sentencing entrapment, we vacate the defendant's sentence and remand for further proceedings”); United States v. Del Muro, 87 F.3d 1078, 1082 (9th Cir.1996) (vacating and remanding to make findings under Fed.R.Crim.P. 32(c)(3)(D)); United States v. Robinson, 63 F.3d 889, 891-92 (9th Cir.1995) (noting need for "more complete and specific findings”); United States v. Naranjo, 52 F.3d 245, 251 (9th Cir.1995) (vacating and remanding because "[i]n the absence of specific findings on the record, we are uncertain as to what findings the district court relied on”); Carter v. Smith Food King, 765 F.2d 916, 924 (9th Cir.1985) (remanding for the district court to address question "[t]he district court did not consider”).
. This remand does not, contrary to the majority’s assumption, "undo this entire trial.” Maj. op. at 591. Whether that result eventually follows depends entirely on what develops on the limited remand that I propose. If it develops on remand that the technical ad-visor was partial and unduly influenced the court, why would that not amount to an abuse of discretion requiring a new trial? The majority avoids answering this question.'
I would not, at this time, reach any of the other issues tendered on appeal on which I express no opinion. The en banc court should, however, retain initial jurisdiction over any further appeals after proceedings on remand have been completed in the district court to address any remaining issues.