Unacceptable Race Stereotypes

June 18, 1991

A black man was injured on the job. He sued his employer for damages. The employer's lawyers used peremptory challenges, which do not have to be justified, to keep two blacks off the jury. This apparently was because they believed black jurors would not be impartial with a black plaintiff. The injured party, after getting a disappointing award, sued on the grounds that the Constitution requires courtroom activities to be "race-neutral." He pointed out that the Supreme Court had previously ruled that in criminal trials prosecutors could not use peremptory challenges for racial purposes. He said this should apply in civil trials.

This month the Supreme Court properly agreed. In a 6-3 decision, the court said, in an opinion by Justice Anthony Kennedy, that the peremptory challenges by private lawyers were in effect state actions since they were created by law, exercised in a courtroom and affected the composition of the jury, which was empowered to act for the state. Thus such challenges cannot be allowed. "Racial bias mars the integrity of the judicial system and prevents the idea of democratic government from becoming a reality," Justice Kennedy said.

Many argue that the civil jury system enjoys wide respect precisely because private litigants -- not the government -- choose the jurors. But Justice Kennedy has a reply to that: "If race stereotypes are the price of acceptance of a jury panel as fair, the price is too high to meet the standards of the Constitution. Other means exist for litigants to satisfy themselves of a jury's impartiality without using skin color as a test. If our society is to continue to progress as a multiracial democracy, it must recognize that the automatic invocation of race stereotypes retards that progress and causes continued hurt and injury."

We have been disappointed with some of this court's decisions in the field of civil rights. This opinion's result and language serve as a reminder that the court is in its own way and by its own lights still committed to fighting discrimination against minorities. Justice Antonin Scalia, who thought the decision wrong, labeled it "a magnificent demonstration of this institution's uncompromising hostility to race-based judgments."

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