Harvey Silverglate is one of the founders of the indispensable Foundation for Individual Rights in Education (F.I.R.E.) and co-author, with Penn Professor Alan Kors, of THE SHADOW UNIVERSITY. His piece on jury selection in OpinionJournal yesterday is in keeping with those contributions. Very much worth reading.
Silverglate fears that we can see a bit of our future in the London trial last month of Abdullah el-Faisal of inciting race hatred, especially against Hindus and Jews, where the judge excluded all Hindus, Jews, and their spouses from the jury.
In our system, the Supreme Court has held in a still somewhat controversial 1986 case, Batson v. Kentucky, 476 U.S. 104, that jurors could not be peremtorily challenged because of their race. Such challenges could only be justified on the assumption that all blacks think alike, a baseless and insulting stereotype. Not long afterward, however, the demand was heard — and it has only gotten louder in recent years — that, on the contrary, race must be “taken into account” in order to provide a fair trial.
This all sounds distressingly familiar, and Silverglate nails the issue:
The court has tread the awkward line between avoiding discrimination on the one hand, and making the assumption that racially balanced juries are socially desirable–perhaps even constitutionally required because people of a particular race think in a particular way. What, precisely, do we mean by “a jury of one’s peers” anyway? In our era, obsessed with notions of racial parity, the boundary between the prevention of discrimination and its institutionalization is dangerously porous.
Indeed, since the diversity arguments depends on the assumption that representatives (?!) of selected minority races and ethnic groups bring something distinctive to the academic mix precisely because of their race and ethnicity, it would be quite useful for the Supremes to review their prior decisions on the role of stereotypes in jury selection and also in women’s rights as they weigh the arguments in the Michigan cases.
Here are two snipets on those topics taken from consecutive footnotes in Melissa L. Saunders, “Equal Protection, Class Legislation, and Colorblindness,” MICHIGAN LAW REVIEW 96 n2 (November 1997), 245-337:
(294.) See, e.g., Roberts v. United States Jaycees, 468 U.S. 609, 625 (1984) (noting that a state may not justify gender discrimination by reference to “archaic and overbroad assumptions about the relative needs and capacities of the sexes”); Lehr v. Robertson, 463 U.S. 248, 266 n.24 (1983) (noting that a state may not justify gender discrimination based on “an invidious and indefensible stereotype”); Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 725 (1982) (disallowing a state’s justification of gender discrimination based on “archaic and stereotypic notions” about the proper roles of the sexes); Caban v. Mohammed, 441 U.S. 380, 398 (1979) (Stewart, J., dissenting) (arguing that a state may not defend gender discrimination based on “stereotyped assumptions about the proper roles and the relative capabilities of men and women,” even when “the generalizations they reflect may be true of the majority of the members of the class”).
(295.) See, e.g., J.E.B. v. Alabama, 511 U.S. 127, 128 (1994) (“[P]otential jurors … have an equal protection right to jury selection procedures that are free from state-sponsored group stereotypes rooted in, and reflective of, historical prejudice.”); Metro Broad., Inc. v. FCC, 497 U.S. 547, 602 (1990) (O’Connor, J., dissenting) (“At the heart of the Constitution’s guarantee of equal protection lies the simple command that the government must treat citizens as individuals, not as simply components of a racial, religious, sexual, or national class.” (internal quotation marks omitted)); 497 U.S. at 604 (O’Connor, J., dissenting) (arguing that the equal protection component of the Fifth Amendment’s Due Process Clause forbids the Government to “embody stereotypes that treat individuals as the product of their race, evaluating their thoughts and efforts — their very worth as citizens — according to [that] criterion”); 497 U.S. at 609 (O’Connor, J., dissenting) (“The right to equal protection … secur[es] to each individual an immunity from treatment predicated simply on membership in a particular racial or ethnic group.”); City of Richmond v. J.A. Croson Co., 488 U.S. 469, 514-15 (1989) (Stevens, J., concurring in part and concurring in the judgment) (stating that the “hallmark” of an equal protection violation is “stereotypical analysis”); Batson v. Kentucky, 476 U.S. 79, 104 (1986) (Marshall, J., concurring) (“[T]he Equal Protection Clause prohibits a State from taking any actions based on crude, inaccurate racial stereotypes ….”
If diversity turns out to be compelling in college, won’t it be compelling on juries and elsewhere as well?
