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Amicus brief illuminates the harms accent bias causes, impact of implicit bias in higher education and the courts

February 18, 2021

Jun Yu was a doctoral candidate in the clinical psychology program at Idaho State University. After graduating, he planned to return home to China to work as a clinical psychologist. But as he completed the degree requirements, the university repeatedly stonewalled Mr. Yu, saying that he could not adequately communicate with patients in English and ultimately terminated him from the program. The university’s supposed concerns didn’t make sense, though. Mr. Yu had demonstrated his ability to speak English with high scores on the Test of English as a Foreign Language (TOEFL) exam, completed all of the academic requirements, and successfully defended his dissertation verbally in English. Furthermore, his future Chinese-speaking clients wouldn’t need him to speak English anyway.

Mr. Yu sued the university in the United States District Court for the District of Idaho for discriminating against him based on accent bias, but the court sided with the university. In a recent amicus brief filed with the U.S. Court of Appeals for the Ninth Circuit, the Public Justice Center, the Fred T. Korematsu Center for Law and Equality, Chinese American Progressive Action, Dr. Russell M. Jeung, LatinoJustice PRLDEF, and Chinese for Affirmative Action called on the Court to recognize that implicit bias exists in higher education and in the courts because of the pervasiveness of implicit bias in our society. Written by the PJC’s Murnaghan Fellow, Olivia Sedwick, the brief urges the Court to recognize how implicit bias negatively impacts non-standard, accented English speakers.

The brief initially describes the pervasive nature of implicit bias. Defined as “entrenched attitudes or stereotypes that affect an individual’s understanding, actions, and decisions in an unconscious manner”, implicit bias “explains why the behavior of those who mean well can still create unintended, negative consequences for those in marginalized communities.” Implicit bias results in people acting in ways that perpetuates a racial hierarchy privileging white people over people of color.

The brief continues by providing historical context for the development of implicit bias and discrimination against people with Asian ancestry in the United States. Beginning in the 1850s with the arrival of Chinese, and then Japanese immigrants, white people created negative stereotypes about Asians to validate their fears of losing their jobs. These biases fueled racist rhetoric and policies and continue to show up in discrimination against people with Asian ancestry today.

One way that implicit bias shows up is in the form of language and accent bias, which is often a proxy for discrimination based on race or national origin. The brief describes how so-called “standard” English is seen as the norm in American society. The media, schools, courts, and other institutions commonly use standard, non-accented English, and people who speak it benefit from its perception as a marker of elevated socio-economic status and professional competence. Studies show that these assumptions affect how teachers, interviewers, judges, and others evaluate people who speak non-standard, accented English, viewing them as less intelligent, less confident, and unrelatable. Such non-substantive judgments are not a reflection of the speakers, however, but are rather a result of the listeners’ implicit biases and lack of effort to understand. People who speak standard, non-accented English consequently have both the biases and the power to engage in gatekeeping, excluding speakers of non-standard, accented English from institutions and communities. The brief argues that Idaho State University engaged in gatekeeping by using accent bias to prevent Mr. Yu from joining the clinical psychology profession despite his academic success.

The brief concludes by explaining that implicit bias is present in the courts, despite the judicial system’s stated value of impartiality. Judges have biases like everyone else, yet often believe they do not, which ultimately affects how they decide cases. Indeed, the district court’s ruling in Yu v. Idaho State University displays a lack of understanding of how implicit bias operates in society. Its focus on Mr. Yu’s accent as being “difficult to understand” mirrors the way the university perceived and treated him.

We hope that this brief will not only help secure justice for Mr. Yu, but also help courts understand how implicit bias affects decision-making in higher education and the courts and specifically harms speakers of non-standard, accented English.

Thanks to PJC’s Murnaghan Fellow, Olivia Sedwick, for writing this powerful brief. Thanks also to paralegal Lena Yeakey for producing the brief.