In its initial ruling in Yu v. Idaho State University on August 31, a Ninth Circuit panel devoted around five pages (pp. 12-16) “to clarify that evidence of unconscious bias may be probative of the factual question of intentional discrimination in a Title VI disparate treatment case.” The panel’s dictum won the applause of the Equal Justice Society, which had submitted an amicus brief on the issue (as had two other amici).
In a superseding opinion filed today, the panel deleted those five pages, presumably on the ground that they were dicta irrelevant to the panel’s ruling against the plaintiff. (The panel also deleted the footnote in its background section in which it had stated that it “appreciates the work of all amici.”)
It seems reasonable to surmise that some other judges on the Ninth Circuit objected to the dicta.
In both versions of the opinion, Judge Eric Miller explains in a concurring opinion why supposed “expert” testimony on unconscious bias “will rarely, if ever, be admissible”:
First, to be admissible, expert testimony must be helpful to the trier of fact. 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.
That is essentially what Dr. Zorwick did here.… She … opine[d] 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.
Second, Daubert v. Merrell Dow Pharmaceuticals, Inc. (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.” … 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…. 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.
(Some citations omitted or simplified.)