Exclusion from Jury Because of Ethnicity or Nationality

It is more than settled that exclusion from jury service because of ethnicity or nationality violates the Equal Protection Clause. See Hernandez v. Texas, 347 U.S. 475, 477-78, 98 L. Ed. 866, 74 S. Ct. 667 (1954)(in case involving exclusion of venirepersons of Mexican descent, Court rejected State's argument that only two classes, "white and Negro," were within contemplation of Fourteenth Amendment and stated that "exclusion of otherwise eligible persons from jury service solely because of their ancestry or national origin is discrimination prohibited by the Fourteenth Amendment"); United States v. Chalan, 812 F.2d 1302, 1314 (10th Cir. 1987)(recognizing striking of American Indians on account of race would violate Batson and Equal Protection Clause), cert. denied, 488 U.S. 983, 102 L. Ed. 2d 565, 109 S. Ct. 534 (1988); State v. Rigual, 256 Conn. 1, 771 A.2d 939, No. SC 16026 slip op. at 15 (Conn. May 8, 2001)("discrimination on the basis of ancestry or national origin violates the Equal Protection clause of the federal constitution [and] consequently, Batson, which was decided on the basis of the Equal Protection clause, must be applied to protect venirepersons from being excused from juries because of their ancestry or national origin"); State v. Alen, 616 So. 2d 452 (Fla. 1993)(recognizing Hispanics as a protected class under Equal Protection Clause, and exclusion of Hispanic venireperson for reason that was not race-neutral violated Batson); State v. Rambersed, 170 Misc. 2d 923, 649 N.Y.S.2d 640, 642 (N.Y. Sup. Ct. 1996)(Italian-Americans are cognizable group under Batson and Equal Protection Clause); see also Hernandez v. New York, 500 U.S. 352, 355, 114 L. Ed. 2d 395, 111 S. Ct. 1859 (1991)(recognizing that exclusion of Latinos from jury based on ethnic origin would violate Equal Protection Clause); see also United States v. Martinez-Salazar, 528 U.S. 304, 315, 145 L. Ed. 2d 792, 120 S. Ct. 774 (2000)(stating that "under the Equal Protection Clause, a defendant may not exercise a peremptory challenge to remove a potential juror solely on the basis of the juror's gender, ethnic origin, or race"); Castaneda v. Partida, 430 U.S. 482, 97 S. Ct. 1272, 51 L. Ed. 2d 498 (1977) (holding Mexican Americans cognizable racial group for purposes of Equal Protection analysis under Swain v. Alabama). Indeed, ethnicity and nationality are probably more precisely what is meant by the term "race" for purposes of the Equal Protection Clause. In Saint Francis College v. Al-Khazraji, 481 U.S. 604, 95 L. Ed. 2d 582, 107 S. Ct. 2022 (1987), the United States Supreme Court equated race discrimination with discrimination based on ethnic origin, holding them essentially interchangeable for purposes of an action under 42 U.S.C. 1981. 5 Section 1981 provides: All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to the punishment, pains, penalties, taxes, licenses, and exactions of very kind, and to no other. Although 1981 does not refer to the term "race," the Supreme Court has construed it to prohibit all "racial discrimination" in the making of private and public contracts. Runyon v. McCrary, 427 U.S. 160, 166, 49 L. Ed. 2d 415, 96 S. Ct. 2586 (1976). Respondent in that case, a United States citizen born in Iraq, was denied tenure by Saint Francis College. Respondent sued the college under 42 U.S.C. 1981, alleging discrimination based on national origin, religion and/or race. The Supreme Court granted certiorari to decide whether "a person of Arabian ancestry was protected from racial discrimination under 1981." Id. at 607. Section 1981 had previously been construed by the Court as prohibiting "racial discrimination" in the making of contracts. the issue in Saint Francis College was whether the respondent had alleged racial discrimination within the meaning of 1981.