Intentional Discrimination Cases

The Supreme Court has emphasized that a person's ethnicity or ancestry does not equate with the country where he was born. In the second to last sentence of its opinion in Saint Francis College, the Court stated: "If respondent on remand can prove that he was subjected to intentional discrimination based on the fact that he was born an Arab, rather than solely on the place or nation of his origin, or his religion, he will have made out a case under 1981." Saint Francis College, 481 U.S. at 613. Thus, the Court distinguished between discrimination based solely on the country where one was born, which would not be viewed as race discrimination, and discrimination based on one's ancestral line or ethnicity, which would constitute race discrimination. In a concurring opinion, Justice Brennan pointed out that "the line between discrimination based on 'ancestry or ethnic characteristics' . . . and discrimination based on 'place or nation of . . . origin,' . . . is not a bright one": It is true that one's ancestry - the ethnic group from which an individual and his or her ancestors are descended - is not necessarily the same as one's national origin - the country "where a person was born, or, more broadly, the country from which his or her ancestors came." Often, however, the two are identical as a factual matter: one was born in the nation whose primary stock is one's own ethnic group. Moreover, national origin claims have been treated as ancestry or ethnicity claims in some circumstances. For example, in the Title VII context, the terms overlap as a legal matter. See 29 CFR 1606.1 (1986) (emphasis added) (national origin discrimination "includes, but is not limited to, the denial of equal employment opportunity because of an individual's, or his or her ancestor's, place or origin; or because an individual has the physical, cultural, or linguistic characteristics of a national origin group"); Espinoza, supra, at 89 (the deletion of the word ancestry from the finial version of 703 of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e-2(e), "was not intended as a material change, . . . suggesting that the terms 'national origin' and 'ancestry' were considered synonymous"). I therefore read the Court's opinion to state only that discrimination based on birthplace alone is insufficient to state a claim under 1981. Saint Francis College, 481 U.S. at 614 (Brennan, J., concurring). Justice Brennan was exactly right in pointing out that ethnicity and national origin or, more specifically, the country where one was born, are often not necessarily the same. See Alen, 616 So. 2d at 455 ("National origin is an important, but not a decisive, factor in determining a person's ethnicity"). This is increasingly true in today's rapidly expanding global society. a person of any ethnic background and/or color may be born in any country of the world without necessarily inheriting that country's predominate ethnicity. Ethnicity is based more on ancestral lineage than the country where one was born, which may or may not be the country of one's ancestors. Thus, the country of one's birth, standing alone, is race-neutral. While it may be an indication of ethnicity, more would be needed. We hold that the party alleging discrimination based on nationality or ethnicity under Batson will not adequately establish the venireperson's ethnicity and cognizable racial group by showing only the country of their birth, and such party will likewise fail to meet its burden of persuasion of race discrimination by showing that the peremptory strike was based only on the country of the venireperson's birth. See Purkett v. Elem, 514 U.S. 765, 767-68, 131 L. Ed. 2d 834, 115 S. Ct. 1769 (1995)("ultimate burden of persuasion rests with, and never shifts from, the opponent of the strike"); Ford v. State, 1 S.W.3d 691, 693 (Tex. Crim. App. 1999)(". . . Texas jurisprudence holds that once the State proffers race-neutral explanations for its peremptory strikes, the burden is on the defendant to convince the trial court that the prosecution's reasons were not race-neutral. Thus, the burden of production shifts from the defendant in step one to the State in step two, but the burden of persuasion never shifts from the defendant").