Jun Yu v. Idaho State Univ.
| Citation | 11 F.4th 1065 |
| Decision Date | 31 August 2021 |
| Docket Number | No. 20-35582,20-35582 |
| Parties | Jun YU, Plaintiff-Appellant, v. IDAHO STATE UNIVERSITY, Defendant-Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
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 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.
Before: Ronald M. Gould, Richard R. Clifton, and Eric D. Miller, Circuit Judges.
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 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. In so holding, we take this opportunity to clarify that evidence of unconscious bias against a protected class in an appropriate case may be probative of whether an entity has intentionally discriminated in a Title VI case. But this question is factual, and here the evidence in the record shows that the district court permissibly found that ISU did not intentionally discriminate against Yu.
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 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 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 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.
Relevant to this case, and to our discussion on this appeal, was the testimony of Dr. Zorwick, who testified as an expert witness regarding aversive racism. Dr. Zorwick described aversive racism as the "dominant theory" of modern race-based prejudice. The theory of aversive racism rests on the assumption that modern prejudice no longer manifests through explicit and overt expressions. Rather, 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 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] 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 ...
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