Abstract

Excerpted From: Avital Fried, Equal Standards for Equal Protection: Revisiting Race Discrimination in Jury Selection after SFFA, 134 Yale Law Journal Forum 709 (February 27, 2025) (117 Footnotes) (Full Document)

Racial disparities pervade the U.S. criminal legal system. State actors disproportionately target and harm Black Americans at every stage of the criminal process: police stop Black Americans at higher rates, prosecutors charge Black Americans with more serious crimes, and judges sentence Black Americans to longer prison terms.

Scholars have observed that jury selection is one of the many processes often infected by race discrimination. In April 2024, a federal judge ordered a district attorney in California to review thirty-five death-penalty sentences after evidence emerged that the office had intentionally excluded Black and Jewish prospective jurors from sitting on juries in capital cases in the 1990s, a practice that violated the U.S. Supreme Court's landmark ruling in Batson v. Kentucky. Just one month later, the Court of Criminal Appeals of Alabama restricted courts' ability to review claims about race discrimination during jury selection, likely reacting to the frequency of such claims. Scholars have repeatedly found that prosecutors strike Black prospective jurors at disproportionately high rates and that white jurors are significantly more likely to impose a death sentence when the defendant is Black. Excluding Black prospective jurors from criminal trials violates the Fourteenth Amendment rights of both the excluded jurors and the people on trial.

In Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (SFFA), the Supreme Court appeared to take a novel approach to what constitutes a Fourteenth Amendment violation, opening a new avenue for challenging racially biased jury selection. In SFFA, the Court found that the “race-conscious” college-admissions processes used by Harvard and the University of North Carolina (UNC) violated the Equal Protection Clause of the Fourteenth Amendment. Many scholars have rightly criticized the Court's reasoning in SFFA. Some have identified ways in which SFFA appears to be at odds with standard conservative views about race that the Court has articulated in the past. Such critiques are crucial to understanding and challenging the Roberts Court's view of equality in education.

In another area of law, however, SFFA might present an unexpected opportunity. A careful examination of the reasoning in SFFA demonstrates that the Court put forward a substantively new understanding of what can constitute a Fourteenth Amendment violation--the use of race as a factor in a selection process, no matter how minor. Though there are many ways in which college admissions and criminal cases are disanalogous, in both contexts the Court has relied on the Fourteenth Amendment's Equal Protection Clause to regulate the use of race in a selection process, whether for a spot at an elite university or for a spot on a jury. Since SFFA purports to reflect the current Court's view of the Equal Protection Clause, perhaps it can be put to good use to challenge race discrimination in other arenas.

In this Essay, I argue that SFFA's new standard for equal-protection violations should be applied to race discrimination in jury selection. In Part I, I describe how the Court's argument in SFFA about the use of race as a ““negative” reveals a significant departure from traditional equal-protection doctrine, one that ultimately establishes a more searching standard. In Part II, I explain how the standard for what constitutes race discrimination in jury selection has evolved from the Court's 1986 Batson decision to the present. Finally, in Part III, I contend that the Court's more protective rule in SFFA should be applied to claims of race discrimination in jury selection. I end by exploring the implications of these arguments for assessing future Batson claims.

[. . .]

In SFFA, the Court rejected the use of an applicant's race as a factor in college admissions, even as a minor consideration. In doing so, the Court adopted a significantly more searching standard for equal-protection violations in the college-admissions context than in the jury-selection context--taking a dramatically different approach to the role of race when a spot at an elite university, as opposed to a person's life or liberty, is on the line.

In addition to the Court's argument in SFFA about the extent to which race is considered, a variety of smaller comments and inferences embedded throughout the majority opinion and concurrences appear incongruous with the Court's stance on race discrimination in jury selection. For instance, Justice Thomas stated that “it is error for a court to defer to the views of an alleged discriminator while assessing claims of racial discrimination.” Thomas strongly warned against taking Harvard and UNC at their word vis-à-vis the intentions and goals of their admissions teams. If Thomas's skepticism about deferring to an “alleged discriminator” applies beyond college admissions, then courts should stop relying heavily on the word of prosecutors--the alleged discriminators--to determine whether there has been a Batson violation.

Moreover, in SFFA, Justice Thomas suggested that “the university respondents' histories hardly recommend them as trustworthy arbiters of whether racial discrimination is necessary to achieve educational goals.” If Thomas's skepticism is not reserved exclusively for elite universities, then one would expect him to be similarly wary of prosecutors, like the one in Flowers, who have extensive records of discriminatory jury-selection practices. Yet, in Flowers, Thomas in dissent wrote that “the Court almost entirely ignores--and certainly does not refute--the race-neutral reasons given by the State,” admonishing the Court for not putting more weight on the word of an alleged discriminator with a history of racial bias.

In one sense, this Essay's comparison of SFFA and Batson sheds light on the Court's thinly veiled hypocrisy. But viewed through a more optimistic lens, SFFA might signal that the Court has lowered the bar for prevailing on equal-protection claims. If advocates can use the Roberts Court's equal-protection jurisprudence to challenge race discrimination in our criminal system, perhaps some good can come of SFFA.

Author Biographical Information & Acknowledgments: Yale Law School, J.D. expected 2026; University of Oxford, D.Phil. 2023; Princeton University, A.B 2020.