Metropolitan News-Enterprise


Thursday, February 13, 2003


Page 1


Sharply Divided Court Denies En Banc Hearing in Race Bias Case


By KENNETH OFGANG, Staff Writer/Appellate Courts


A sharply divided Ninth U.S. Circuit Court of Appeals yesterday denied en banc review to a former California State University, Hayward professor whose $622,000 racial discrimination award was overturned by a panel of the court last August.

Eleven of the court’s 24 active judges dissented from the denial of further review to Mohamed Osman Elsayed Mukhtar. A three-judge panel ruled that U.S. District Judge Claudia Wilken of the Northern District of California erred in allowing the plaintiff’s expert witness on racial discrimination to testify without first explicitly finding that the evidence would be reliable.

Judge Stephen Reinhardt authored the dissent, which was joined by colleagues Harry Pregerson, Michael Daly Hawkins, A. Wallace Tashima, Sidney Thomas, M. Margaret McKeown, Kim M. Wardlaw, William Fletcher, Raymond C. Fisher, Richard A. Paez, and Marsha Berzon.

‘Wholly Unprecedented’

Reinhardt said the panel made a “wholly unprecedented” decision to mandate a new trial rather than send the case back to the district judge for a determination of whether the testimony was in fact reliable.

“As a result, the parties and the court will be forced to undergo a cumbersome and wholly unnecessary second trial, to the great disadvantage of a civil rights litigant,” the judge said.

The plaintiff, a Muslim of Sudanese origin who moved to Morocco after losing his position at Hayward, in 1990 became the first black tenure-track professor ever hired by the Mass Communications Department of the university. He claims he was denied tenure because of his race, religion, and national origin, while the university says it was his lack of academic achievement, in particular a lack of published scholarship, that resulted in the decision.

The major dispute on appeal concerned the testimony of Dr. David Wellman, who has done a great deal of research in how racism persists without open bigotry. Wellman, a UC sociology professor testifying in court for the first time in his long career, told jurors that “decoding” the behavior of the university president and other white officials who decided to deny tenure led to the conclusion that they acted on the basis of race.

Expert’s Opinion

Wellman cited inconsistent application of tenure criteria, to the disadvantage of blacks; statistical evidence of disparate treatment; the trivializing of the professor’s qualifications and accomplishments; and the lack of procedures for reducing racial inequality.

But Judge Diarmuid F. O’Scannlain, writing for the panel, said Wilken failed to perform her “gatekeeper” function under Rule 702 of the Federal Rules of Evidence, as interpreted in Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).

Daubert held that Rule 702 had displaced the traditional Frye analysis, under which scientific or technical expert opinion is admissible if the methodology used is accepted in the relevant professional community, with a “flexible” rule permitting the trial judge to allow evidence that was both relevant and reliable.

O’Scannlain concluded that while Wilken reviewed Daubert briefs that she ordered the parties to file, and concluded that the testimony was admissible provided that Wellman did not testify to a legal conclusion, the district judge committed reversible error in not making a specific finding that the evidence was reliable.

Judge Richard Tallman and Senior District Judge Samuel P. King of Hawaii, sitting by designation, concurred in the opinion.

No Prejudice

But Reinhardt said the ruling was wrong because there could be no prejudice, and thus no reversal, unless the testimony was inadmissible. And the testimony was only inadmissible, he said, if it was unreliable, which was never determined.

What the panel should have done, he wrote, was treat the district judge’s admission of the evidence as an implied finding of reliability, reviewable only for abuse of discretion, or remanded to allow Wilken to make explicit findings or reconsider the decision to allow the evidence in.

“Here, the panel did not even deign to inquire whether the testimony was admissible under Daubert, and thus the only error it found—the alleged procedural error by the district judge—cannot justify a reversal,” Reinhardt wrote.

But O’Scannlain, in a footnote to an amended panel opinion also filed yesterday, criticized Reinhardt’s approach.

“To remand for an evidentiary hearing post-jury verdict undermines Daubert’s requirement that some reliability determination must be made by the trial court before the jury is permitted to hear the evidence,” O’Scannlain wrote. “Otherwise, instead of fulfilling its mandatory role as a gatekeeper, the district court clouds its duty to ensure that only reliable evidence is presented with impunity. A postverdict analysis does not protect the purity of the trial, but instead creates an undue risk of post-hoc rationalization. This is hardly the gatekeeping role the Court envisioned in Daubert and its progeny.”

The case is Mukhtar v. California State University, Hayward, 01-15565.


Copyright 2003, Metropolitan News Company