A “Colorable” Claim of Discrimination

Posted & filed under Blog.

by Vinay Harpalani

On December 22, 2016, the New York Court of Appeals issued a landmark civil rights ruling.  In People v. Bridgeforth, the Court of Appeals held that skin color discrimination is cognizable for Batson challenges to juror exclusion.  Defendant Bridgeforth, who is a dark-skinned African American, was convicted of robbery at trial.  The prosecutor had employed peremptory strikes to exclude a number of dark-skinned women from his jury pool.  One of these prospective jurors was South Asian American, and the prosecutor did not offer any explanation for striking her.

It was the exclusion of this juror that was the basis of the appeal in Bridgeforth.  What made the case unique was that Bridgeforth did not argue that the South Asian American woman was stricken because of her race.  Rather, he contended that she was excluded as part of a group of dark-skinned jurors.  Thus, while race and color are usually considered together, with race taking the primary role, Bridgeforth’s theory of discrimination separated the two and focused directly on skin color.

Mr. Bridgeforth was represented by Tammy Linn of Appellate Advocates Inc.  The Fred T. Korematsu Center for Law and Equality filed an amicus brief in support of Mr. Bridgeforth, assisted by pro bono counsel from Akin Gump Strauss Hauer & Feld.  Thirty-two individual law professors joined the brief, as did the Society of American Law Teachers (SALT).  Additionally, 20 civil rights organizations joined, including NAACP Legal Defense & Education Fund, Inc. and Anti-Defamation League (ADL).  Among these organizations were many Asian and South Asian American bar associations—who recognized that Bridgeforth was important not only for addressing skin color discrimination broadly, but also for confronting discrimination against South Asian Americans.

The trial and intermediate appeals courts in New York both upheld the prosecutor’s peremptory strike.  However, the Court of Appeals reversed unanimously and ordered a new trial for Mr. Bridgeforth.  Six of the seven judges held that skin color is a cognizable category under Batson v. Kentucky (1986).  The majority opinion cited various social science studies and law review articles to show that skin color discrimination is a prominent phenomenon in the U.S.  Moreover, the majority noted that New York’s Constitution and civil rights laws cover discrimination based on color.  Many sections of the Civil Rights Act of 1964 contain language about color, with most actual cases brought under Title VII’s prohibition of discrimination in employment.  Skin color discrimination has also been recognized under the Fair Housing Act.

Additionally, the U.S. Constitution provides grounds for addressing discrimination based on color.  The Fifteenth Amendment explicitly states that the right “to vote shall not be denied or abridged … on account of race, color, or previous condition of servitude.”  The Civil Rights Act of 1866, upon which the Fourteenth Amendment was based, included language precluding color discrimination.  In the late 19th century, several U.S. Supreme Court opinions involving the Fourteenth Amendment noted that African Americans faced discrimination based on “race” and “color”—sometimes demarcating them separately.  During the 20th century, however, Supreme Court opinions in major cases began using only the language of “race”—and the Court has never held that “race” and “color” are separate for equal protection purposes.

Nevertheless, in Bridgeforth, for the first time, a court ruled that the Equal Protection Clause applies specifically to color discrimination—at least in the context of Batson challenges.  The case is binding only in New York, but it does open the door for wider acknowledgment of skin color biases.  The Court of Appeals correctly recognized that while colorism is often subsumed under racism, it can also be an independent phenomenon that the law should address directly.

Vinay Harpalani is Associate Professor of Law at Savannah Law School, where he teaches constitutional law, civil procedure, and employment discrimination.  He served as of counsel on the Korematsu Center’s amicus brief.