Batson for Judges, Police Officers & Teachers: Lessons in Democracy From the Jury Box

Stacy L. Hawkins June, 2018

In our representative democracy we guarantee equal participation for all, but we fall short of this promise in so many domains of our civic life. From the schoolhouse, to the jailhouse, to the courthouse, racial minorities are underrepresented among key public decision-makers, such as judges, police officers, and teachers. This gap between our aspirations for representative democracy and the reality that our judges, police officers, and teachers are often woefully under-representative of the racially diverse communities they serve leaves many citizens of color wanting for the democratic guarantee of equal participation. This critical failure of our democracy threatens to undermine the legitimacy of these important civic institutions. It deepens mistrust between minority communities and the justice system and exacerbates the failures of a public education system already lacking accountability to minority students.

But there is hope for rebuilding the trust, accountability and legitimacy of

these civic institutions on behalf of minority citizens. There is one place where we have demonstrated a deeper commitment to our guarantee of democratic equality on behalf of minority citizens and exerted greater effort to that end than perhaps in any other domain of our civic life—the jury box. This paper recounts this important history and explores the political theory underlying the equal protection jurisprudence of jury selection. It then applies these lessons gleaned from the jury context to the constitutional defense of efforts to achieve greater racial diversity within the judiciary, law enforcement, and public education, all of which are as important to the legitimacy of our democracy today as the jury has been throughout American history.

B. Representative Bureaucracy as a Theory of Procedural

“[I]f liberty and equality . . . are [ ] to be found in democracy, they will be best attained when all persons alike share in the government to the utmost.”

– Aristotle¹

I swear to the Lord, I still can’t see, Why Democracy means, Everybody but me.

Langston Hughes²

Introduction

The stark contrast in voice reflected in the above quotes echoes the contrasting sentiments they embody. On the one hand, we guarantee that all persons are equal and, therefore, ought to have an equal share in the process of democratic self-government. That is the formal expression of our aspirational ideal for democratic equality. On the other hand, the lived experience for many racial minorities is one of exclusion from participation in our democracy.³ Historically that exclusion was total, but even today people of color experience far from equal participation in the many institutions that comprise our democracy.⁴ Although we continue to fall short in realizing the promise of democratic equality, there is one democratic domain where we have fared better, and more importantly, tried harder, in realizing our aspirations for democratic equality than most others—the jury box.⁵

This paper draws on lessons from the jury context to suggest how we ought to do democracy more broadly. Specifically, the focus here is on applying these jury insights to demands for increasing racial diversity among judges, police officers, and teachers as key democratic decisionmakers not wholly unlike jurors in the extent to which they too ought to adequately reflect the communities they serve. Although there is a fairly wide legal literature calling for greater racial diversity among judges in particular, and to some lesser extent among police officers and teachers, this contribution to that literature is unique insofar as it draws an analogy between these contemporary calls for greater racial diversity among judges, police officers, and teachers as key democratic decision-makers, and a long history and tradition of pursuing increased racial diversity among a different set of key democratic decision-makers – jurors.⁶ This paper bridges the gap in the existing literature by first recounting the deep history and tradition of guaranteeing democratic equality in jury selection through efforts to ensure racial diversity among jurors,⁷ and then applying those jury insights to judges, police officers, and teachers.⁸

The jury literature is extensive.⁹ Many scholars have extolled the democratic virtues of increased racial diversity among juries made possible by, among other things, doctrinal developments in the equal protection jurisprudence of jury selection.¹⁰ The jury selection system is by no means perfect,¹¹ but it has improved dramatically over time to expand the racial diversity of jurors.¹² A likely reason for this exceptional approach in the jury context is that the jury is held up as emblematic of our highest ideals for democratic self-government.¹³ Underlying these efforts is an acknowledgment that the failure to ensure racial diversity among jurors betrays our fundamental commitment to democratic equality.¹⁴

Despite this long history and tradition of valuing racial diversity in jury selection and service, and the concerns for democratic equality informing this tradition, we have largely failed to appreciate parallel concerns for democratic equality that might animate similar calls for greater racial diversity among judges, police officers, and teachers. The jury may be a unique feature of our democracy, but there are many other democratic institutions that serve as equally important sites of civic participation in our democracy. In a democracy “of the people, by the people, and for the people,” these institutions should similarly reflect a commitment to racial diversity as a guarantee of democratic equality.¹⁵ This paper suggests that how we treat jury selection, and in particular, our deliberate efforts to promote racial diversity in jury service, ought to be instructive for how we pursue racial diversity and approach selection for civic participation in these other democratic domains.¹⁶

This paper is divided into three parts. Part I explains the democratic significance of juries and traces the deep, historic intersection between juries and race in America. Synthesizing political theory, social science research and the equal protection jurisprudence of jury selection, this Part first identifies why the jury is an exemplar of our democratic ambitions for self-government and then reveals why racial diversity in jury selection and service is critical to the realization of those democratic ambitions.

Borrowing from the theory of representative bureaucracy in the public administration literature, Part II extends the democratic lessons of the jury to the judiciary, law enforcement and public education. By demonstrating that each of these other civic domains also has great significance in our democracy and poses equal challenges to our aspirations for democratic equality when public decision-makers in these domains fail to adequately reflect the diversity of the citizens they serve, this Part suggests some basis for analogizing these domains with the jury. Part II offers both theoretical and empirical support for the claim that the lack of racial diversity among judges, police officers, and teachers not only betrays our commitment to democratic equality, but also undermines the legitimacy of our democracy.

Finally, Part III offers some preliminary ideas for how we might address the democratic dilemma posed by the existing lack of racial diversity among judges, police officers, and teachers without violating the constitutional proscription on government uses of race. Borrowing lessons from the equal protection jurisprudence of jury selection, this Part suggests that we can similarly engage in deliberate, race-conscious efforts to promote greater diversity among judges, police officers, and teachers in constitutionally permissible ways. The equal protection jurisprudence of jury selection reveals that the democratic legitimacy attained when public decision-makers reflect the diversity of the communities they serve is undoubtedly a compelling government interest. By structuring these raceconscious efforts to mirror those that have been undertaken in the jury context, they can be narrowly tailored in ways that promote meaningful racial diversity within the judiciary, law enforcement, and public education while also ensuring their constitutionality.

I. Juries, Democratic Equality,and Racial Diversity

A. Juries and Democracy

Juries occupy a special place of significance as a civic institution in our democracy.¹⁷ Virtually every scholarly work on juries recognizes trial by jury as the quintessential and most revered feature of our unique democratic republic.¹⁸ In a system of representative democracy, where few of the governed actually get to govern, juries offer the opportunity for direct democratic participation.¹⁹ Juries, in other words, signify democracy in action.²⁰

The most venerable feature of the jury is its ability to promote three critical democratic values— trust, accountability, and legitimacy . Juries foster both the trust in government and accountability to the people necessary to legitimize our representative democracy in the eyes of the citizenry.²¹ As the only unelected branch of our federal government, the judicial branch is considered more reliant on the trust reposed in it by the people than are the elected branches of government, which are thought to replenish their goodwill with each new election cycle.²² The judicial branch, therefore, is more dependent on the appearance of legitimacy than are the executive or legislative branches.²³

The jury is the democratic capstone of our judicial system, most prized for its unique ability to legitimize the otherwise politically unaccountable decision-making of judges.²⁴ Juries satisfy this need for democratic accountability by allowing ordinary citizens “the opportunity to participate in making the justice of the community.”²⁵ According to jury scholar Jeffery Abramson, it is precisely this function of promoting democratic accountability to all constituent groups in the community that makes racial diversity in particular a salient feature of the jury.²⁶

Juries not only generate democratic accountability on behalf of the people, they also foster needed trust in the judicial system.²⁷ This trust is indispensable to the effective functioning of our democracy. Contrary to some popular conceptions of democracy as government by consensus, political philosopher Danielle Allen explains that loss is inevitable in democracy.²⁸ The real project of democracy, therefore, is not to find consensus. It is instead to first ensure that no group suffers continual losses, and then to find a mechanism for individuals and groups to negotiate the loss of selfinterest that is inevitable in democracy.²⁹ Allen suggests the best mechanism for accomplishing these ends is to engender trust both among citizens and between citizens and government.³⁰ Trust between citizens guards against the prospect of any group suffering continual losses by fostering “a willingness to sacrifice some of one’s own power for the sake of common agreement,”³¹ while trust between citizens and the government allows for acceptance of the temporal losses that are inevitable in democracy.³² Nowhere is the prospect of loss more inevitable than in the judicial system.³³ When juries are representative of the communities they serve, they help foster the trust necessary to legitimize our judicial system by securing the consent of those governed by it.³⁴

B. The Theory of Procedural Justice

The theory of procedural justice explains how representative juries foster trust in the judicial system. The theory posits that public perceptions of the legitimacy of our justice system turn less on the substance of discrete decisions than on the perceived fairness of the procedural processes employed in reaching those decisions.³⁵ This hypothesis – that fair procedures trump fair outcomes in shaping citizens’ perceptions of institutional legitimacy – coincides with Allen’s thesis that if citizens trust the government, they are more willing to accept the losses that are an inevitable feature of democracy.³⁶ The theory of procedural justice has been confirmed through a variety of empirical studies.³⁷

In one revealing study, participants were shown video footage of police misconduct and told to evaluate the appropriateness of punitive action against the police based on the conduct observed using a scale of 1-3, with 1 being conduct least deserving of punishment and 3 being conduct most deserving of punishment.³⁸ The researchers found that regardless of the lawfulness of the police conduct, the desire to punish was a full point higher when respondents perceived the conduct as procedurally unfair than when they perceived the conduct as procedurally fair.³⁹ In fact, the difference barely registered on the scale of 1-3 when looking at the lawfulness of the police conduct.⁴⁰ Participants were no more likely to want to punish unlawful conduct than to punish lawful conduct, but they were much more likely to want to punish procedurally unfair conduct than they were to punish procedurally fair conduct.⁴¹ In other words, people disapproved of bad processes far more than they disapproved of bad outcomes.

Studies show that fair processes not only increase faith in the legitimacy of judicial decision-making, they also increase citizens’ willingness to accept the decisions of courts, to cooperate with them, and to otherwise abide by the rule of law.⁴² In a 2002 study of 1,656 respondents who had interactions with the justice system through either police officers or courts, respondents’ perceptions of the fairness of the procedures employed by these public decision-makers were more determinative of respondents’ willingness to accept the decision than was the favorability of the decision itself.⁴³

Tom Tyler and Tracey Meares explain that there are two key measures of procedural justice: (1) the quality of treatment of citizens by public decision-makers, and (2) the quality of the decision-making itself.⁴⁴ These two measures can be seen as rough proxies for gauging trust and accountability respectively. A key determinant of the quality of treatment of citizens is the extent to which citizens trust public decision-makers.⁴⁵ Trust in this regard is defined as a belief that the decision-maker is sincere and cares about the effects of his or her conduct on citizens rather than acts out of prejudice or disregard for citizens.⁴⁶ One way to foster the trust in public decision-makers that promotes a sense of procedural justice, particularly on behalf of minority citizens, is to ensure that decision-makers themselves are racially diverse in ways that reflect the communities they serve.⁴⁷

C. The Importance of Racially Diverse Juries

Race has always figured prominently in our conception and construction of the American jury system, which is often perceived as treating minorities unfairly relative to Whites.⁴⁸ For example, one study found that a quarter of White respondents (25%) and more than three-quarters of Black respondents (78%) said they believe the justice system treats Blacks unfairly.⁴⁹ Similarly, nearly half of White respondents (45%) and more than four-fifths of Black respondents (84%) said they think the justice system favors Whites over Blacks.⁵⁰ This explains why, in the aftermath of the now infamous 1992 trial of the White police officers caught on videotape brutally beating Rodney King (a Black motorist), nearly half of all Black respondents (45%) described the acquittal of the White police officers by an all-White jury as “racist.”⁵¹

According to the theory of procedural justice, if we can foster trust in the decision-maker (here the jury), and thereby improve perceptions of fair treatment in the judicial process, we can also improve perceptions of judicial legitimacy—notwithstanding the outcome in individual cases.⁵² One way that we foster trust in the jury and improve perceptions of fair treatment in the judicial process is by improving the racial diversity of juries.⁵³ Studies show that perceptions of procedural fairness are significantly higher when verdicts are rendered by racially diverse juries than when verdicts are rendered by single-race juries.⁵⁴ As one judge observed about juror diversity, “[y]ou want . . . for this thing to not only be fair, but look fair. Th[e] Court depends on people believing that you get a fair shake.”⁵⁵ Increasing the racial diversity of jurors improves perceptions of the fairness, and consequently the legitimacy, of the judicial system.⁵⁶

In addition to fostering trust in the jury as the judicial decisionmaker, which is the first key measure of procedural justice, research shows that ensuring racial diversity among jurors also improves the quality of decision-making in jury deliberations.⁵⁷ Thomas and Meares identify this as the second key measure of procedural justice.⁵⁸ Abramson offers an account of how increased racial diversity among jurors improves jury deliberations.⁵⁹

Abramson describes the task of the jury in discharging its democratic function fully and competently to “represent accurately the diversity of views held in a heterogeneous society such as the United States.”⁶⁰ He argues that racially diverse juries, unlike racially homogenous ones, promote three different democratic ideals: (1) epistemic diversity : a populist claim about the collective wisdom of the people; (2) deliberative diversity : a claim that many minds outsmart the few brightest minds; and (3) representative diversity : a claim that diversity of representation matters in a democracy.⁶¹ Representative diversity fosters needed trust in the jury as judicial decision-maker, but it is the epistemic and deliberative features of racially diverse juries that improve the quality of decision-making, which also promote procedural justice.⁶²

The accountability hypothesis helps explain how the deliberative and epistemic features of diverse juries improve the quality of jury deliberations.⁶³ The accountability hypothesis posits that when working groups are composed of diverse members, participants have to justify their ideas to a wider range of people and therefore must display more thought and care in their consideration.⁶⁴ Recent jury studies by psychologist Samuel Sommers confirm the accountability hypothesis, finding that racially diverse juries do a better job than racially homogenous ones of keeping racial prejudices in check in particular, and also of deliberating generally.⁶⁵ Sommers finds that the more mixed the racial composition of the jury: (1) the less likely White jurors are to express guilty preferences in advance of jury deliberations, and (2) the greater the information exchange among jurors during deliberations.⁶⁶ According to Sommers, relative to racially homogenous juries, racially diverse juries:⁶⁷

• deliberated longer (50.67 minutes vs. 38.49 minutes) • discussed more case facts (30.48 vs. 25.93), • committed less factual inaccuracies (4.14 vs. 7.28), • left fewer inaccurate statements uncorrected (1.36 vs. 2.49), • cited to more pieces of evidence they considered missing

(1.87 vs. 1.07),

• raised a greater number of race-related issues (3.79 vs. 2.07), • made more mentions of racism (1.35 vs. 0.93), • had fewer objections when racism was mentioned as relevant (22% of the time vs. 100% of the time).

In other words, racially diverse juries displayed more care and less prejudice in their deliberations. This means that not only is the deliberative process itself improved when juries are more racially diverse, but this enhanced deliberation reinforces precisely the qualities that, according to the theory of procedural justice, engender trust in the decision-maker.⁶⁸

Abramson’s claim about the jury embodying principles of democratic equality by ensuring that all groups are effectively represented in the deliberative process actually has historic roots dating back to colonial England.⁶⁹ The jury “de medietate linguae,” which translates to “jury of the half tongue,” was first used in twelfth century England in cases involving Jews, but evolved to accommodate cases involving any foreign party.⁷⁰ The jury “de medietate linguae” required that half of all jurors represent the minority interest in any litigation involving the adjudication of minority rights.⁷¹ The jury “de medietate linguae” was an acknowledgment that “prejudice existed against the minority group and that an ordinary jury would not necessarily produce a fair result.”⁷² As with so many other aspects of English common law, this practice was eventually adopted in the early American jury system in cases involving a minority party interest.⁷³

By 1968, the Jury Selection & Service Act codified this commitment to democratic equality in jury selection and service, including, specifically, a commitment to racial diversity among jurors, by expressly identifying the purpose of jury selection as “achieving proportionate representation on the jury rolls for all ‘distinct’ or ‘cognizable’ groups in the community,” defined to include (among other things) proportionate representation of racial minorities.⁷⁴ The Jury Selection and Service Act, and the fair crosssection requirement it established, have become the constitutional baseline for the guarantee of equal protection in jury selection and service in both federal and state courts.⁷⁵ As a result, numerous federal, state, and local courts have adopted efforts deliberately designed to improve racial diversity in jury selection and service.⁷⁶

Hennepin County, MN, for instance, employs a race-conscious selection system for grand juries that requires the composition of the 23- member grand jury to mirror the racial composition of the County as determined by the most recent census.⁷⁷ The system provides detailed procedures for calling successive jurors from the jury pool until the required racial composition is reached among grand jurors.⁷⁸ There are also a number of State and Local Court Commissions and Task Forces charged with developing procedures for ensuring that jury selection and service appropriately reflect the racial diversity of the communities from which jurors are drawn.⁷⁹ The federal judiciary has adopted similar efforts.⁸⁰

In addition to these more formal processes,, individual judges have also taken steps to promote jury diversity. For example, in the Northern District of Illinois, which encompasses Chicago, Judge Milton Shadur adjourned a trial until a multi-racial jury appropriately representative of the community could be summoned.⁸¹ The Third Circuit affirmed similar efforts by Judge Ramseur of the Federal District Court in New Jersey to ensure that the jury reflected a cross-section of the community.⁸² These race-conscious efforts by judges, jury commissioners, and others affirm the importance of ensuring diversity in jury selection and service as a function of our constitutional commitment to democratic equality.⁸³

D. The Equal Protection Jurisprudence of Jury Selection

The Equal Protection Clause is the provision of our Constitution that guarantees all citizens equal treatment under the law.⁸⁴ It has been the constitutional provision most responsible for redressing racial discrimination throughout our nation’s history.⁸⁵ For nearly a century after the Equal Protection Clause was ratified, however, it did little to protect people of color (particularly the newly emancipated slaves) from racial discrimination as intended, with one notable exception—the jury box.⁸⁶ Because of their unique ability to help legitimize our democracy by fostering trust and accountability on behalf of the judicial branch, juries have received special consideration in our constitutional equal protection jurisprudence.⁸⁷ Cases adjudicating equal protection challenges in jury selection and service have acknowledged the intersecting principles of representative democracy and equal protection embodied by the jury.⁸⁸ Indeed the very first successful challenge under the newly ratified Equal Protection Clause was a challenge to racial exclusion in jury selection.⁸⁹

In Strauder v. West Virginia , a Black criminal defendant challenged a West Virginia statute excluding Black persons from jury service.⁹⁰ The Supreme Court declared that the statutory exclusion from jury service on the basis of race evinced precisely the kind of racial prejudice the newly ratified Equal Protection Clause was designed to redress.⁹¹ More troubling than the overt racial exclusion, the Court observed, was the fact that it occurred in the jury context, which by its very design is intended to secure the individual liberty emblematic of our representative democracy through its composition of “the peers or equals of the person whose rights it is selected or summoned to determine.”⁹² The Court expressly held that “compelling a colored man to submit to a trial for his life by a jury drawn from a panel from which the State has expressly excluded every man of his race,” is undoubtedly a violation of the Equal Protection Clause.⁹³

After Strauder , jury cases became unique in the Court’s equal protection jurisprudence.⁹⁴ During a time when the “separate but equal” doctrine prevailed to authorize racial segregation in almost every domain of public life, the jury was a notable exception.⁹⁵ The Court continued to enforce the guarantee of equal protection in jury service in ways that diverged from the Court’s more general equal protection jurisprudence, thereby signaling the unique importance of racial equality in jury service.⁹⁶ Unlike the jury “de medietate linguae,” the Court did not mandate that Blacks be seated on juries involving Black defendants as a matter of equal protection law,⁹⁷ but in Norris v. Alabama , the Court extended the protection from “total statutory exclusion” as recognized in Strauder, to “systematic and arbitrary exclusion” in the selection of persons called for jury service.⁹⁸ Further, rather than requiring direct evidence of discriminatory intent, the Court accepted “statistical disparities between Blacks eligible to serve and those actually called” as proof of unlawful discrimination under the equal protection clause.⁹⁹ This particular line of jury discrimination cases culminated in Smith v. Texas ,¹⁰⁰ in which the Court first acknowledged the “need to make the jury a ‘body truly representative of the community.’ ”¹⁰¹ This acknowledgement expressed a requirement for racial diversity among jurors in principle, but the selection of jurors for trial continued to reflect racialized exclusion in practice.¹⁰²

Then, in Batson v. Kentucky , the Court went beyond scrutinizing rules designed to include Blacks on juries in principle to address the pernicious and discriminatory effects of more covert practices intended to exclude Blacks from jury service in practice.¹⁰³ In Batson , a Black criminal defendant challenged the prosecutor’s use of peremptory strikes to remove all of the Black prospective jurors from the jury venire, resulting in the defendant’s conviction by an all-White petit jury.¹⁰⁴ Batson argued these race-based peremptory strikes violated the Equal Protection Clause.¹⁰⁵ Addressing the ways in which both principles of equal protection and representative democracy were implicated in the case, the Batson Court observed:

The very idea of a jury is a body . . . composed of the peers or equals of the person whose rights it is selected or summoned to determine; that is, of his neighbors, fellows, associates, persons having the same legal status in society as that which he holds . . .The harm from discriminatory jury selection extends beyond that inflicted on the defendant and the excluded juror to touch the entire community.¹⁰⁶

The Court specifically referenced judicial reliance on the public trust reposed in the court for its legitimacy , and the way in which the racial exclusion of jurors undermined that public trust. Echoing the theory of procedural justice and its emphasis on fair process, the Court reasoned:

Selection procedures that purposefully exclude Black persons from juries undermine public confidence in the fairness of our system of justice . . . Discrimination within the judicial system is most pernicious because it is ‘a stimulant to that race prejudice which is an impediment to securing to [Black citizens] that equal justice which the law aims to secure to all others.¹⁰⁷

In finding for the Black defendant and prohibiting a prosecutor’s use of peremptory strikes to remove jurors from the jury venire on the basis of their race, the Batson Court explained how its decision legitimized the justice system and even the rule of law itself:

By requiring trial courts to be sensitive to the racially discriminatory use of peremptory challenges, our decision enforces the mandate of equal protection and furthers the ends of justice. In view of the heterogeneous population of our Nation, public respect for our criminal justice system and the rule of law will be strengthened if we ensure that no citizen is disqualified from jury service because of his race.¹⁰⁸

The Supreme Court in Batson declared the covert efforts to exclude Blacks from jury service through the use of peremptory strikes just as incompatible with the equal protection guarantee of racial non-discrimination in jury selection as the overt exclusion in Strauder .¹⁰⁹ Moreover, the Court in Batson ruled that the prosecution could no longer rely on the presumption of non-discrimination that had prevailed in these cases, but instead required the prosecution to “articulate a neutral explanation related to the particular case to be tried” for peremptorily striking each potential juror.¹¹⁰ The Court specifically cautioned trial judges to be aware of and sensitive to the potential for peremptory strikes to mask discriminatory treatment when evaluating whether purposeful discrimination had occurred.¹¹¹

This line of cases, with Batson at its center, provided unparalleled substantive and procedural protections against racial discrimination in the jury context.¹¹² For this reason, the decision in Batson is considered a cornerstone of the Supreme Court’s equal protection jurisprudence surrounding jury selection.¹¹³ The treatment of Batson in the scholarly literature is extensive and cannot be fully summarized here, but there is general consensus about the import of Batson for both equal protection doctrine and democratic theory.¹¹⁴ This acknowledgment was made more explicit in Powers v. Ohio , where the Court went further still in emphasizing the point that racial equality in jury service is about protecting the right of democratic participation by jurors themselves and preserving the legitimacy of the judicial process.¹¹⁵ Relying on the holding of Batson , the Court in Powers held that it is not only a violation of the defendant’s equal protection rights to exclude jurors on the basis of their race, but a violation of the excluded juror’s constitutional rights not to be removed from the jury on the basis of her race.¹¹⁶ Reiterating the importance of jury diversity to judicial legitimacy, the Court expressly reasoned that denying individuals participation in jury service on the basis of race “casts doubt on the integrity of the judicial process” itself.¹¹⁷

Even today, the Supreme Court is still scrutinizing claims of racial discrimination in jury selection and service with great concern for considerations of procedural justice.¹¹⁸ The Court’s emphasis in these cases, not just on equal protection but also on preserving public respect for both the judicial system and the rule of law, can be understood as expressing concern for fostering the trust and ensuring the accountability to the citizenry that are necessary to preserve the legitimacy of the judicial system.¹¹⁹

The Supreme Court’s opinions in Batson and its progeny, as well as the scholarly literature analyzing Batson, identify two key reasons why this case, and the goal of racial diversity in jury service that it promotes, are considered so significant in our constitutional equal protection canon. The first is the unique role that juries occupy in our system of representative democracy, serving as a means to foster both trust and accountability on behalf of the judiciary as the least democratic branch of government.¹²⁰ The second is the overriding importance of racial diversity to the effective democratic functioning of the jury itself.¹²¹ If we wager so much on juries precisely because they epitomize our ideals for democratic equality, then how we think about and treat juries ought to inform how we manage other aspects of our judicial system, as well as civic institutions more broadly.

II. Ensuring Democratic Equality in the Judiciary, Law Enforcement, and Public Education

If the jury is considered an exemplar of our representative democracy, it follows that how we conceive of and administer the jury system should inform our approach to other key sites of civic participation in our representative democracy.¹²² In other words, Batson is grounded in a doctrine of racial equality and principles of participatory democracy that transcend the jury context.¹²³ The most obvious extension of Batson is to the bench, where judges perform a civic function equivalent to juries in our judicial system.¹²⁴ But there is no reason to limit application of the democratizing principles embodied in Batson to the judiciary.

There are other equally significant domains of our representative democracy where the key insights of procedural justice theory ought to similarly apply and where key public decision-makers ought to equally reflect the racial diversity of the communities they serve.¹²⁵ The two additional domains suggested here are law enforcement and public education. These domains are suggested not because they are the only other domains of our civic life that lend themselves to application of these doctrinal and democratic principles, but because, for several reasons, they have unique significance for the enhanced democratic legitimacy that will accrue if public decision-makers in these domains better reflect the diversity of the communities they serve.¹²⁶

First, these are domains where we are presently experiencing a crisis of democratic legitimacy, particularly on behalf of minority citizens, as acutely reflected in the “school to prison pipeline” phenomenon.¹²⁷ Second, and perhaps because of these dire circumstances, these domains have been the subject of extensive research and study and so lend themselves to greater empirical analysis of the effects of increased diversity on these domains.¹²⁸ Finally, each is a domain where scholars have already made calls for increased racial diversity, and so there is precedent for the race-conscious approach advocated for here.¹²⁹ However, the focus here on these three domains should not suggest any limitation on future attempts to expand the scope of the democratic equality principles embodied in Batson even further.¹³⁰

Political philosopher Elizabeth Anderson has similarly called for extension of the principle of democratic equality from the jury to democracy more broadly.¹³¹ She suggests that, much like racially homogenous juries, our present system of democracy, with its long history of racial exclusion and segregation, lacks the requisite accountability to racial minorities needed to foster democratic legitimacy.¹³² This history has resulted in public decision-makers who are overwhelmingly White and who lack effective accountability to minority citizens.¹³³ Such a lack of political accountability is inherently incompatible with the idea of representative democracy that informs our commitment to democratic equality.¹³⁴ According to Anderson, if we are to enforce our aspirational norms of democratic equality, as well as ensure trust and foster accountability in our democratic institutions, we must seek greater racial diversity among public decision-makers across all relevant domains of our civic life.¹³⁵ If we understand our aspirations for democracy as a form of “collective self-determination whereby those subject to the laws are also in a relevant sense the authors of the law,” then the imperative of racial diversity within the key sites of our democracy and in particular among key public decision-makers is made evident.¹³⁶ Although Anderson cautions that the pursuit of representative democracy should not devolve into identity politics, she does advocate for greater racial diversity among our civic leaders.¹³⁷

Anderson emphasizes the importance of racial diversity among elected officials, but the public decision-making that implicates the need for fostering democratic trust and accountability is not confined to electoral politics.¹³⁸ Public deliberations occur across a broad range of civic institutions and by a host of different public decision-makers, which Allen describes as “the parochialness of law and representation” in our democracy.¹³⁹ Accordingly, participation in each public domain of our civic life, as well as all decision-making by public servants, ought to equally reflect this commitment to fostering democratic trust and accountability.¹⁴⁰ In broadly conceiving of the opportunities for our representative democracy to live up to its commitment to democratic equality, most notably embodied in our constitutional jury jurisprudence as signified by Batson , I turn now to these other domains of our political life as models for Batson ’s ready application.

A. Judging, Policing, and Teaching as Key Sites of Civic Participation

Legal scholars have in part acknowledged application of the democratic equality principles embodied in Batson to judges.¹⁴¹ Sylvia Lazos Vargas, for instance, makes the case for racial diversity among judges by drawing on John Hart Ely’s famous representation reinforcement theory.¹⁴² Vargas explains how equal protection law operates to both guarantee equal participation and reinforce notions of democratic representation on behalf of racial minorities.¹⁴³ Like Allen, Vargas argues that the trust generated on behalf of minority citizens when judges reflect the racial diversity of the citizenry legitimizes and stabilizes our democracy by diffusing racial tensions.¹⁴⁴

Acknowledgments of the democratic equality benefits of greater racial diversity among police officers and teachers also exist in the social science literature.¹⁴⁵ Relying on studies demonstrating the material benefits that accrue to communities of color from greater racial diversity among law enforcement (and conversely the harms that can occur when an all- White force polices minority communities), scholars have called for increased racial diversity among police officers.¹⁴⁶ Law enforcement itself has long defended efforts to increase racial diversity within their own ranks on the ground that such racial diversity is vital to their ability to engender trust with minority communities and ultimately to legitimize law enforcement in the eyes of minority citizens.¹⁴⁷ Similar calls for increased racial diversity among teachers can be found both in the educational literature¹⁴⁸ and among school districts themselves.¹⁴⁹

Although scholars have sometimes defended calls for greater racial diversity among judges, police officers, and teachers on the basis of increased perceptions of institutional legitimacy, they have not generally grounded their observations or arguments in the equal protection principles expressed in Batson and its progeny.¹⁵⁰ Thus, the literature has not fully explored the underlying theories of democratic equality and procedural justice that inform the need for greater racial diversity in the judicial, law enforcement or educational domains. Filling this gap in the extant literature, this section will offer greater doctrinal and theoretical grounding for these claims by demonstrating how the call for greater racial diversity among judges, police officers, and teachers is consistent with the democratic equality principles of Batson and how realizing this aim in each of these domains will help legitimize these democratic institutions by increasing perceptions of procedural fairness.¹⁵¹

B. Representative Bureaucracy as a Theory of Procedural Justice

The theory of procedural justice, with its focus on perceptions of the justice system as a whole, can explain why increased racial diversity will improve perceptions of legitimacy on behalf of judges, in addition to juries.¹⁵² It even has some application to police officers, who serve as frontline decision-makers in our justice system.¹⁵³ But it does not explain the importance of racial diversity in the domain of public education generally, or among teachers specifically. A related concept, representative bureaucracy, bridges the gap between the theory of procedural justice and the domain of public education as a key site of civic participation, and between judicial actors and teachers as key public decision-makers in our democracy.¹⁵⁴ Additionally, the theory of representative bureaucracy reinforces the importance of racial diversity among judges and police officers as key public decision-makers in the judicial and law enforcement domains.

The premise of “representative bureaucracy” theory is that racial congruence between bureaucrats and the citizens they serve influences how minority citizens benefit from public decision-making by the bureaucrat.¹⁵⁵ In other words, representative bureaucracy posits that minority citizens will experience greater civic benefit from bureaucrats who share their racial background.¹⁵⁶ The underlying reasons are much like the accountability hypothesis in the jury context and involve an accrual of the deliberative and representative benefits of diversity.¹⁵⁷ Representative bureaucracy theorizes that differences in social identity translate into different social experiences.¹⁵⁸ These experiences, in turn, contribute to differences in political attitudes, which are strongly correlated with political behaviors.¹⁵⁹ Just as the accountability hypothesis in the jury context predicts that racial diversity among jurors improves deliberations, particularly in cases where minority interests are involved, representative bureaucracy theorizes that racial congruence between bureaucrats and citizens improves policy outputs on behalf of minority citizens, particularly on issues of high racial salience.¹⁶⁰

Several examples in the relevant domains of policing and teaching illustrate the point. Studies have found that Black and Latino police officers treat Black and Latino motorists less punitively than White police officers by, for instance, issuing fewer citations.¹⁶¹ Similarly, a study showed that Black teachers treat Black students more favorably by assigning them to gifted classes three times more often than do White teachers.¹⁶² Another study of teachers found less punitive treatment of Black students, as measured by formal discipline, based on student/teacher racial congruence.¹⁶³ If we consider police officers and teachers as bureaucrats and their actions as policy outputs, these findings suggest that positive benefits do accrue to minority citizens from having bureaucrats who share their racial identity.

Representative bureaucracy theory is even reinforced in the judicial domain. Judicial behavioralism is the branch of political science that applies empirical methods to determine the relationship, if any, between the personal attributes of judges and their rulings.¹⁶⁴ This is like studying the policy outputs of judges as bureaucrats. Judicial behavioralism offers findings and conclusions regarding the racially congruent effects of judicial decision-making that are consistent with the findings of representative bureaucracy for police officers and teachers, namely that racial congruence between judges and litigants matters for how judges decide individual cases.¹⁶⁵

In one study, researchers found that plaintiffs in racial harassment cases had higher success rates when their cases were decided by African American judges (45.8%), than when their cases were decided by either White judges (20.6%) or Hispanic judges (19%).¹⁶⁶ Notably, critics often claim that it is not this descriptive representation (or racial congruence) that matters among key public decision-makers, but that instead, it is substantive representation (or interest congruence) that matters most.¹⁶⁷ These critics argue that it matters less whether public decision-makers look like you than whether they share your political commitments.¹⁶⁸ But this study of judicial decisions in racial harassment cases found that the statistical disparity in outcomes by race held even after controlling for judges’ political affiliation.¹⁶⁹ African American judges who were both Democrat (47%) and Republican (43%) ruled in favor of Black plaintiffs significantly more often than either White Democrats (27.1%) or White Republicans (16.6%).¹⁷⁰

Another study similarly found that African American judges were more than twice as likely to rule in favor of Voting Rights Act plaintiffs than their White counterparts.¹⁷¹ Moreover, consistent with the accountability hypothesis on the deliberative diversity benefits of racially heterogeneous decision-makers from the jury context, this study also found that on appeal, White judges were significantly more likely to find a violation of the Voting Rights Act when they sat on a panel with an African-American judge than when they sat on an all-White judicial panel.¹⁷² These empirical findings confirm the importance of racial diversity among judges for the same reasons that representative bureaucracy theory promotes racial diversity among police officers and teachers—it increases democratic accountability on behalf of minority citizens, which in turn promotes democratic legitimacy.¹⁷³

Despite clear evidence of the benefits that accrue for minority citizens from increased racial diversity among judges, police officers and teachers, Nancy Sherer suggests that opposition to these efforts will persist unless proponents are able to convince Whites that they too benefit from this increased diversity.¹⁷⁴ This acknowledgment that minorities will not achieve equality in the absence of the convergence of their interests with the interest of Whites is not new.¹⁷⁵ Responding to this concern for “interest convergence,” following is an analysis of the broader implications of this failure to achieve greater racial diversity among judges, police officers, and teachers.

C. The Consequences of Failing to Achieve Democratic Equality

The reasons we should strive to improve the racial diversity of our judges, police officers, and teachers are not limited to the idea that principles of democratic equality demand it as a theoretical or doctrinal matter, or because it will benefit minority citizens specifically. Allen observes that democracy is marked by the inevitability of loss, but she cautions that when any group suffers continual losses the stability of democracy is threatened.¹⁷⁶ Examples from each of these domains demonstrate the devastating practical consequences for our democracy and the real losses that accrue for all citizens when public decision-makers fail to reflect the diversity of the communities they serve and, consequently, are incapable of ensuring accountability , engendering trust, or promoting legitimacy on behalf of these democratic institutions.

The examples below are merely illustrative of the types of harms, both to our democracy and to our citizenry, that arise from our failure to ensure that judges, police officers and teachers reflect the racial diversity of the communities they serve. Using the “school to prison pipeline” phenomenon to frame this problem,¹⁷⁷ the following demonstrates how public decision-makers, i.e. , teachers, police officers and judges, at each successive point in this pipeline lack accountability to minority citizens and contribute to negative outcomes that have the potential to erode trust in these institutions, undermine their legitimacy and ultimately, as Allen suggests, may threaten the long-term stability of our democracy.

1. When Teachers Lack Accountability Minority Students Suffer

We have long recognized that public education provides the foundation for good citizenship and the best opportunity for children to flourish as engaged citizens and as productive individuals.¹⁷⁸ Despite this recognition, public schools have failed to educate all citizens equally. There has been a stubborn racial achievement gap in American education dating back decades.¹⁷⁹ Black and Hispanic students are underrepresented among high academic achievers.¹⁸⁰ At the same time, they are overrepresented in remedial education classes and among school disciplinary cases.¹⁸¹ The reasons for this achievement gap are complex and some are unknown, but recent research reveals that academic achievement for Black students in particular is positively correlated with teacher/student racial congruence.¹⁸² This research suggests that we could narrow the existing racial achievement gap , increase the number of Black students in gifted classes, reduce the number in remedial education classes, and lower the rate of discipline for Black students simply by increasing the number of Black teachers and improving the rate of student/teacher racial congruence.¹⁸³

Existing racial disparities between public school students and their teachers suggest there is significant room for improvement.¹⁸⁴ Half (50%) of all public school students are racial minorities, the vast majority of whom are Black and Hispanic, but less than one-fifth (18%) of public school teachers are racial minorities.¹⁸⁵ These racial disparities are expected to get worse as the population of public school students gets more diverse over time.¹⁸⁶ Although there are various reasons why public school teachers are less racially diverse than their students, one of the reasons is that minority teachers are hired at lower rates than their White peers.¹⁸⁷ This is a troubling trend that public schools ought to try more deliberately to redress if we are to ensure that all children have an equal opportunity to become productive citizens.¹⁸⁸

2. When Communities Mistrust Police Lives Are Lost

Even more troubling perhaps than this lack of academic accountability to minority students are the fatal consequences that have resulted from the erosion of trust between law enforcement and minority communities. Recent news reports have chronicled the strained relations and growing mistrust between law enforcement and minority communities across the country.¹⁸⁹ The issue has garnered so much national attention that both the Democratic and Republican candidates addressed it as a primary pillar of their campaigns during the 2016 presidential election.¹⁹⁰ Although there is much disagreement from all sides of the debate on the solutions to this problem, there is one point of consensus—trust between minority communities and the police is dangerously low, and the consequence has been deadly.¹⁹¹

According to recent data, Black citizens are more than twice as likely to be shot by police than either White or Hispanic citizens, and are six times more likely to be shot by police than Asian citizens.¹⁹² Blacks represent less than thirteen percent of the U.S. population, but roughly one quarter of unarmed persons killed by police.¹⁹³ Even when the consequence of policing in minority communities is not deadly, it is often devastating. The Department of Justice, for instance, has concluded that some local law enforcement agencies have engaged in patterns of discriminatory policing in minority communities that have resulted in unlawful arrests and the use of non-lethal, excessive force.¹⁹⁴ Responding to these concerns, the Department of Justice has acknowledged that rebuilding trust must be at the heart of any efforts to repair relations between minority communities and law enforcement.¹⁹⁵

And it is not just Black deaths at the hands of police officers that have deepened the mistrust between law enforcement and minority communities. It is also the police response to Black deaths at the hands of other citizens. From the killing of unarmed teenager Trayvon Martin in 2012 by White neighborhood watchman George Zimmerman, to the more recent killing of professional football player Joe McKnight by a White motorist during a “road rage” incident, minority communities have expressed mounting frustration with police officers for the perceived reluctance of law enforcement to arrest and/or seek prosecution of White perpetrators when the victim is Black.¹⁹⁶ This frustration is in stark contrast with what is often perceived as over-policing by law enforcement in minority communities when they are instead the perpetrators of crime, sometimes with fatal consequences.¹⁹⁷

The deaths of unarmed Blacks in particular at the hands of police have spurred protest movements across the country by citizens beleaguered with the state of police/minority relations.¹⁹⁸ And the death toll is adding up on both sides. During a recent protest of police shootings in Dallas, Texas, five police officers were fatally shot.¹⁹⁹ This growing mistrust between law enforcement and minority communities is not simply a matter of democratic legitimacy; it is a matter of life and death.

Given the low numbers of minority police officers currently, at least some calls for police reform emphasize the importance of improving the racial diversity of law enforcement in communities of color.²⁰⁰ According to one recent report surveying 269 local jurisdictions, racial minorities are underrepresented among law enforcement by an average of twenty-four percentage points relative to census population estimates of the racial composition of the communities served.²⁰¹ In thirty-five of the eighty-five jurisdictions in which racial minorities are in the majority, the racial disparity between citizens and the police was more than fifty percent.²⁰² If the theories of procedural justice and representative bureaucracy are correct, increasing the racial diversity of police officers in these communities will not only improve trust between law enforcement and these communities, it will also increase accountability to minority citizens.²⁰³ Rebuilding trust and fostering greater accountability to minority communities may be the best safeguard against the continued threats to the democratic legitimacy of law enforcement posed by ongoing police shootings and the resulting minority protests.

3. When Judges Lack Legitimacy the Judicial System is Undermined

Finally, at the last stage of this pipeline, we must ensure the legitimacy of the rule of law by ensuring that judicial decision-making is procedurally fair, starting with increasing the racial diversity of judges.²⁰⁴ First, increased racial diversity among judges may help ameliorate some of the lingering concerns with the administration of Batson challenges in the jury context based on empirical evidence of minority judges’ greater willingness to credit claims of racial discrimination.²⁰⁵ Second, and perhaps more important, when the bench lacks sufficient diversity, judges themselves can decide cases in ways that compromise the appearance of procedural fairness and undermine the legitimacy of the justice system.

Aaron Persky is a White judge of the Superior Court in Santa Clara County, CA. A recent case over which Judge Persky presided demonstrates the threat to judicial legitimacy posed by judges whose decisionmaking is perceived as procedurally unfair. Judge Persky garnered national attention in June 2016, when he presided over a case in which Brock Turner, a White Stanford alum and an accomplished student athlete, had been convicted of three counts of felony sexual assault of a fellow Stanford student.²⁰⁶ Under California law, Turner’s conviction carried a minimum penalty of two years on each count of sexual assault.²⁰⁷ Despite the prosecutor’s recommendation for a longer sentence, Judge Persky sentenced Turner to a mere six months in the county jail.²⁰⁸

Judge Persky elicited immediate objections from those who questioned the Judge’s lenient sentencing of Turner in view of his crimes.²⁰⁹ But things grew worse still for Judge Persky when it soon came to light that there was another rape case over which Judge Persky presided where the defendant, Raul Ramirez, a thirty-two year old immigrant from El Salvador, was also charged with sexually assaulting his female roommate in a case that news reports described as having striking similarities to the case involving Brock Turner.²¹⁰ Suspicions regarding the propriety of Judge Persky’s sentencing in the Turner case only grew after news reports highlighted substantial differences in Judge Persky’s treatment of Ramirez, despite factual similarities in the two cases.²¹¹ Perhaps most notable was Persky’s alleged agreement with the prosecutor that Ramirez should receive a state prison sentence of three years even though Ramirez had no criminal history. In stark contrast, Persky had observed on the record in the Turner case that “[a] prison sentence would have a severe impact on him” and, therefore, his lack of criminal history justified a light sentence.²¹²

Speculation arose that Judge Persky’s sentencing of Turner and Ramirez was based more on race than on the merits of the cases.²¹³ Not surprisingly, the citizens of Santa Clara County perceived Judge Persky’s sentencing in the Brock Turner case as procedurally unfair.²¹⁴ As a result public trust in the judicial system was undermined.²¹⁵ There was a public campaign to have Judge Persky recalled, and citizens refused to serve on juries in Judge Persky’s courtroom.²¹⁶ At least one prosecutor filed a motion to recuse Judge Persky from another sexual assault case, expressing a lack of confidence in his ability to render an impartial judgment in that case.²¹⁷

Santa Clara County is not the only place where citizens lack confidence in courts where largely White judges preside over what appears to be a system of racialized justice.²¹⁸ When judges lack legitimacy, the judicial system is incapable of performing its primary function of meting out justice in a manner that wins the people’s consent.²¹⁹ This failure has the potential to erode the trust in the judiciary that is critical to the effective functioning of our justice system.²²⁰

III. Lessons from Batson:Diversifying the Judiciary, Law Enforcement, and Public Schools

According to the theories of procedural justice and representative bureaucracy, achieving racial diversity among judges, police officers, and teachers is necessary to ensure the democratic legitimacy of the judiciary, law enforcement, and public schools as institutions of government.²²¹ Achieving greater racial diversity among the key public decision-makers in each of these domains will also avoid the kinds of losses currently experienced by minority citizens as described above that may inflame racial tensions and that Danielle Allen suggests may threaten the long-term stability of our democracy.²²² To forestall this possibility, we ought to consciously pursue racial diversity in each of these domains in the same way and for the same reasons we engage in race-conscious jury selection.²²³ The raceconscious efforts undertaken by jury commissioners and judges to ensure diversity in jury selection as a means of promoting trust and accountability to minority citizens and ensuring the democratic legitimacy of the judicial system offer vital insights and critical lessons for how we ought to similarly pursue racial diversity in each of these other important democratic domains.

Equal protection doctrine requires that all government uses of race satisfy the highest standard of judicial review, known as strict scrutiny.²²⁴ Strict scrutiny demands that any use of race be: (1) justified by a compelling government interest, and (2) narrowly tailored to meet the asserted interest.²²⁵ Relying on the principles of democratic equality embodied in Batson , as well as the social science research on procedural justice and representative bureaucracy, this strict scrutiny standard can be satisfied to support similar race-conscious efforts to achieve greater racial diversity among judges, police officers, and teachers.²²⁶

A. Racial Diversity as a Compelling Interest

Theories of procedural justice and representative bureaucracy demonstrate that racial diversity promotes the trust and accountability necessary to legitimize democratic institutions generally and specifically to legitimize the individual decision-making of judges, police officers, and teachers as public bureaucrats vis-a`-vis minority citizens.²²⁷ Achieving the democratic legitimacy that accrues from this racial diversity is undoubtedly a compelling government interest.²²⁸ The previously highlighted research demonstrates that minorities have lower levels of trust in the judicial system overall and that White judges are less accountable to minority litigants.²²⁹ Law enforcement and public schools also suffer from a crisis of legitimacy among minority citizens who view these institutions as both untrustworthy and/or insufficiently accountable to their interests, particularly the interests of Black and Hispanic citizens.²³⁰ Thus the need to ensure democratic legitimacy in these domains by fostering trust and promoting accountability on behalf of minority citizens is as pressing as it is in the judicial domain.²³¹

Nevertheless, the claim that racial diversity can be a constitutionally compelling interest often generates a variety of objections. First, the diversity interest is often criticized in the scholarly literature for its presumptive failure to align with the social justice goals underlying equal protection doctrine.²³² According to this critique, the focus on pragmatic ends, such as educational or commercial benefits, makes the diversity interest incompatible with equal protection doctrine.²³³ Anderson herself expresses this concern, noting that despite the ways in which the diversity interest might be otherwise superior to the more traditional remedial interest associated with equal protection doctrine,²³⁴ it suffers from the flaw of being “divorced from the aims of social justice.”²³⁵ This critique, however, ignores the fact that social justice is itself one of the instrumental aims pursued by the diversity interest.²³⁶

In the words of Justice O’Connor, writing for the majority in Grutter v. Bollinger, ²³⁷ where the Court first recognized the diversity interest as constitutionally compelling, one of the instrumental ends sought by the diversity interest is to ensure “[e]ffective participation by members of all racial and ethnic groups in the civic life of our Nation” and thereby to realize “the dream of one Nation, indivisible.”²³⁸ Thus, social justice is not divorced from the instrumental goal of diversity; it is one of several instrumental goals of the diversity interest.²³⁹ This instrumental diversity interest has already been recognized as constitutionally compelling and, therefore, capable of justifying affirmative, race-conscious efforts to ensure meaningful participation by racial minorities in the various civic institutions that comprise our democracy.²⁴⁰

The second objection that often surfaces both in the literature and in the jurisprudence on affirmative, race-conscious efforts in pursuit of diversity is that if the interest is in “epistemic diversity,” then race-conscious selection is not necessary to achieve this goal.²⁴¹ Rather, we ought to utilize race-neutral methods to select directly for this epistemic diversity without relying on race as a proxy for it.²⁴² This objection is misplaced for several reasons. First, this argument misapprehends the dual interests served by ensuring effective minority participation in our democracy. Recall that Allen and Anderson identify both trust and accountability as the critical values fostered by effective minority participation in our democracy.²⁴³ As the theory of procedural justice demonstrates, racial diversity engenders trust when minority citizens see themselves represented in the institutions of government, regardless of whether or how the presence of those minority representatives influence substantive outcomes in the democratic decision-making process.²⁴⁴ Thus race-conscious selection is necessary for achieving the descriptive representation that fosters trust in public decision-makers.²⁴⁵

Accountability, on the other hand, does depend on the assumption of some epistemic diversity that allows minority representatives to increase responsiveness to minority interests in democratic deliberations.²⁴⁶ However, there is an erroneous assumption underlying this critique of raceconscious efforts in pursuit of epistemic diversity.²⁴⁷ Anderson explains that the diversity interest does not rely on race as a proxy for presumed cultural difference, as this objection assumes, but as a proxy for “personal knowledge.”²⁴⁸ Guaranteeing meaningful civic participation by racial minorities ensures that democracy realizes the epistemic benefits of its diverse citizens who are “asymmetrically affected by various social problems and policy responses to those problems.”²⁴⁹ In other words, minority citizens necessarily have different “personal knowledge” about social problems than non-minority citizens.²⁵⁰ Consequently, race is not only necessary to the descriptive representation that increases democratic trust, it is also the best proxy for achieving the desired epistemic diversity necessary for democratic accountability to minority citizens.²⁵¹

The final objection to affirmative race-conscious efforts in pursuit of the diversity interest is that these efforts cause more harm than they are worth by inflaming racial tensions and fueling racial discord.²⁵² This, according to critics, produces feelings of resentment against minorities on behalf of those non-minorities who may be displaced by these race-conscious efforts.²⁵³ Allen helps us understand why the attention to ensuring minority participation in the various civic institutions comprising our democracy, and the race-conscious means used to achieve this end, ought not arouse resentment on behalf of those non-minorities who may be displaced.²⁵⁴ She explains that between 1954 and 1964, during the apex of the Court’s equal protection jurisprudence and the height of the Civil Rights Movement, “the United States was reconstituted . . . with a promise of equality for all persons regardless of race, ethnicity or color.”²⁵⁵ This began a process of redistribution of political power away from total control by the racial majority in an attempt to realize the guarantee of equality under law through shared political power for minority citizens.²⁵⁶ Allen is very clear to acknowledge that this reconstitution remains incomplete, but also to remind us that the loss occasioned by the majority’s displacement as a part of the redistribution of power is the inevitable consequence of democracy.²⁵⁷ The key to democracy, as Allen explains, is not in avoiding loss but ensuring that there are no permanent losers.²⁵⁸

It is, therefore, not this temporal loss by majority citizens that betrays the commitment to democratic equality, but rather our long-standing historic practice of relegating racial minorities to perpetual losers in our democracy generally and in our judicial, law enforcement, and public education systems specifically that betrays the commitment to democratic equality.²⁵⁹ Affirmative, race-conscious efforts to ensure meaningful participation by racial minorities in the “civic life of our nation” generally, and in each of these key public domains specifically, are an attempt to engender the trust that Allen tells us is necessary to ensure that minority citizens do not feel like permanent losers.²⁶⁰ At the same time, they allow for the epistemic diversity that Anderson says makes democratic institutions more accountable to the interests of minority citizens so they are less likely to actually suffer continual political losses in the future.²⁶¹ As demonstrated by the foregoing analysis, the analogies to the jury context and the compelling interest in fostering democratic legitimacy through increased diversity are significant, and it is at least arguable that this shared interest justifies comparable race-conscious efforts in these other domains.

B. Narrowly Tailoring Efforts to Increase Racial Diversity Among Judges,

Police Offices, and Teachers

In addition to ensuring that race-conscious diversity efforts are justified by a compelling government interest, strict scrutiny requires that such efforts be narrowly tailored to meet the asserted interest in diversity.²⁶² Here too efforts to ensure racial diversity in jury selection and service are instructive.²⁶³ Theories of procedural justice and representative bureaucracy demonstrate that the compelling interest in promoting democratic legitimacy through increased racial diversity applies with equal force in the domains of judging, policing, and teaching as it does in the jury domain. So strict scrutiny analysis should embrace as narrowly tailored in the judging, policing, and teaching domains the same types of efforts undertaken in pursuit of this common interest in the jury domain. This is not to ignore the constitutional mandate that “context matters” when assessing strict scrutiny.²⁶⁴ There are important differences in context between juries and the other domains addressed here.²⁶⁵ Nevertheless, the analogies to the jury context are significant insofar as the compelling interest in fostering democratic legitimacy through increased diversity in each of these other domains, and it is at least arguable that this shared interest justifies comparable race-conscious efforts.

1. Race-Conscious Selection

Taking Batson as the centerpiece of the Supreme Court’s equal protection jurisprudence of jury selection, Batson reflects a constitutional commitment to democratic equality in jury service that seeks to legitimize our judicial system by ensuring that racial minorities are adequately represented on juries, particularly when minority interests are being adjudicated.²⁶⁶ One key insight from Batson is the recognition that we should not accord racial disparities in jury selection a presumption of non-discrimination.²⁶⁷ Instead we should interrogate such racial disparities for any evidence of discriminatory treatment.²⁶⁸ The same willingness to interrogate disparities in jury selection should be applied to the selection of judges, police officers, and teachers.²⁶⁹

Batson also revealed that a necessary precondition for increasing racial diversity among jurors is generating sufficient racial diversity among jury pools.²⁷⁰ Jury commissioners and judges across the country have adopted an array of race-conscious methods for selecting citizens for jury duty generally and jury service specifically to address this problem.²⁷¹ These practices range from jury commissioners thoughtfully selecting juror source lists with an eye towards increasing the number of racial minorities called for jury service, to judges carefully managing jury selection to ensure racial diversity among those seated on the petit jury.²⁷² In some cases these efforts go so far as adopting formal rules mandating racial proportionality between seated jurors in individual cases and the local population census.²⁷³ These efforts can be traced in part to enactment of the 1968 Jury Selection and Service Act, which abandoned the former system of elite juror selection that prized only “men of recognized probity and intelligence” in favor of a selection system that values jurors who reflect a fair cross-section of the community.²⁷⁴ The Jury Selection and Service Act expressly recognizes racial diversity as indispensable to the guarantee of democratic equality in jury selection and service.²⁷⁵

The Civil Service Reform Act of 1978 is analogous to the Jury Selection and Service Act of 1968. The express goal of the Civil Service Reform Act is not “merely ending discrimination” in federal employment but “taking proactive steps to increase the representation of . . . people of color in the civil service” until the government “looks like America.”²⁷⁶ Its purpose is to diversify the federal civil service in the same way that the Jury Selection and Service Act has promoted increased racial diversity among jurors.²⁷⁷ And just as the race-conscious methods identified above have replaced more elitist selection methods as the primary source of juror selection, attention to principles of representative bureaucracy have supplemented the merit selection system to broaden the scope of hiring for the federal civil service.²⁷⁸ If the Jury Selection and Service Act is the constitutional baseline for both federal and state jury selection, so too the Civil Service Reform Act ought to be viewed as the constitutional baseline for both federal and state civil service selection for judges, police officers, and teachers.²⁷⁹

Race-conscious selection processes that are targeted and deliberate in their attention to improving racial diversity among judges, police officers, and teachers ought to be constitutionally permissible if they are pursued in the same way such efforts have been pursued in the jury context.²⁸⁰ These efforts ought to include targeted outreach and recruitment of diverse applicants as well as race-conscious selection strategies designed to improve the diversity yield among judicial appointments, as well as law enforcement and teacher hires.²⁸¹ Some of these efforts are already being pursued at the federal, state and local levels to increase racial diversity among judges.²⁸² Similar efforts ought to be adopted in the recruitment and hiring of police officers and public school teachers.²⁸³ Such race-conscious efforts are a critical tool for achieving and maintaining diversity among these key public decision-makers, thereby fostering the trust and accountability necessary to legitimize the judiciary, law enforcement, and public education as key democratic institutions.²⁸⁴

At the very least, diversity must be expressly identified as a goal in the selection of judges, police officers, and teachers.²⁸⁵ Data show, for instance, that state judicial appointment systems that include diversity as an express goal have more diverse benches than those without an express commitment to diversity.²⁸⁶ But to have maximum effect, just as jury commissioners have undertaken race-conscious efforts to ensure jury pools are as diverse as possible, so too should race-conscious efforts in the selection of judges, police officers, and teachers be focused on expanding the diversity of the applicant pool.²⁸⁷ These targeted recruitment efforts are likely to both enhance the diversity of the candidates who are ultimately selected for these positions, as well as reduce liability under prevailing equal protection law by focusing race-conscious efforts on recruitment rather than selection.²⁸⁸

2. Measuring Diversity by the Fair-Cross Section Standard

Continuing the jury analogy, efforts to increase racial diversity among judges, police officers, and teachers should focus on achieving a “fair cross-section” of diversity within each of these domains.²⁸⁹ Notably, the fair cross-section jury requirement is a guarantee only that the jury venire, from which the petit jury in any individual case is ultimately drawn, is representative of the community.²⁹⁰ It is not a guarantee that every petit jury serving in any individual case will be representative of a fair cross-section of the community.²⁹¹ So too the requirement for a faircross section of judges, police officers, and teachers should ensure that the overall demographic composition of these professions at the local level appropriately reflects the racial diversity of the communities they will be called upon to serve.²⁹²

For instance, the diversity of judges sitting in a particular district or circuit in the federal judiciary, or serving a particular county or other judicial subdivision in the state should be reflective of the diversity of that district, circuit, county or judicial subdivision.²⁹³ Similarly, police officers and teachers ought to reflect the racial and ethnic composition of the local communities they serve.²⁹⁴ This is particularly important where the impairments to trust and accountability suffered by these communities are not equally distributed across racial groups. For instance, in the context of policing and public education, the data show that there is much greater distrust between Black communities and law enforcement than for instance Asian communities and law enforcement.²⁹⁵ Similarly, our public schools are failing Black and Hispanic students at a far higher rate than it currently fails Asian American or white students.²⁹⁶ For these reasons, it is important to incorporate the lesson of representative bureaucracy theory into the selection and hiring of judges, police officers, and teachers by realizing that racial congruence between citizens and these key public decision-makers is necessary for generating the accountability and trust needed to legitimize the judicial system, law enforcement, and public education as key sites of civic participation in the eyes of our increasingly diverse citizenry.²⁹⁷

But, consistent with the fair cross-section standard, this requirement would not guarantee that all judges assigned to individual cases, police officers assigned to neighborhood beats, or teachers in every school are proportionally representative of the litigants, residents, or students in each of these discrete contexts. Inevitably, however, as we have seen with efforts to increase racial diversity in jury service, efforts to ensure that judges, police officers, and teachers represent a fair cross-section of the communities they serve in the aggregate will likely translate into improvements in the racial and ethnic diversity of judges presiding in individual cases involving minority litigants, police officers patrolling minority neighborhoods, and teachers serving minority students.²⁹⁸ These increases in the racial diversity of judges, police officers, and teachers will promote greater democratic legitimacy by fostering trust and ensuring accountability on behalf of minority citizens.²⁹⁹

Conclusion

The jury is rightly revered in America for reflecting our highest aspirations for representative democracy, and in particular for striving to realize the guarantee of democratic equality on behalf of minority citizens. Procedural justice theory helps explain why issues of race, and in particular attention to guaranteeing racial diversity, has always figured so prominently in our constitutional jury jurisprudence. Racially diverse juries foster the trust and accountability necessary to legitimize our judicial system in the eyes of a diverse citizenry. But these principles ought not be confined to the jury context. The jury is merely instructive for how we ought to do democracy more broadly. Representative bureaucracy theory helps extend the claim for racial diversity as a guarantee of democratic equality from the jury to other equally important sites of civic participation in our democracy. The research on representative bureaucracy demonstrates that racial diversity among judges, police officers, and teachers is equally critical to fostering trust and promoting accountability to minority citizens in the judicial, law enforcement, and public education domains.

Borrowing from the Supreme Court’s jury jurisprudence, as embodied in Batson and its progeny, we can identify principles and strategies for achieving racial diversity that can be applied in these other domains. By adopting race-conscious efforts designed to achieve a fair cross-section of racial diversity among judges, police officers, and teachers, we can ensure “[e]ffective participation by members of all racial groups in the civic life of our Nation,” and prevent the kinds of harms that political philosopher Denise Allen cautions would threaten the stability of our democracy and subvert our aspirations for government of the people, by the people, and for the people.³⁰⁰