The People, Respondent,v.Joseph Bridgeforth, Appellant.

Brief

N.Y.November 17, 2016

APL-2015-00099 Queens County Indictment No. 2014/11 Appellate Division, Second Department Docket No. 2012-07683 dl01trt nf J\pp.eals STATE OF NEW YORK .... THE PEOPLE, Respondent, -against- JOSEPH BRIDGEFORTH, Appellant. BRIEF FOR AMICI CURIAE FRED T. KOREMATSU CENTER FOR LAW AND EQUALITY, ANTI-DEFAMATION LEAGUE, ASIAN AMERICANS ADVANCING JUSTICE, ASIAN AMERICAN BAR ASSOCIATION OF NEW YORK, ASIAN AMERICAN LEGAL DEFENSE AND EDUCATION FUND, HISPANIC NATIONAL BAR ASSOCIATION, LATINOJUSTICE PRLDEF, INC., METROPOLITAN BLACK BAR ASSOCIATION, NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC., NATIONALASIAN PACIFIC AMERICAN BAR ASSOCIATION, NATIONAL ASIAN PACIFIC AMERICAN WOMEN'S FORUM, NATIONAL BAR ASSOCIATION, NATIONAL NATIVE AMERICAN BAR ASSOCIATION, SOCIETY OF AMERICAN LAW TEACHERS, INC., SOUTH ASIAN BAR ASSOCIATION OF NEW YORK, SOUTH ASIAN BAR ASSOCIATION OF NORTH AMERICA, AND LAW PROFESSORS IN SUPPORT OF DEFENDANT-APPELLANT Of Counsel: VINAY HARPALANI Associate Professor of Law Savannah Law School October 6, 2016 ALICE Hsu JOSEPH L. SORKIN STAN CHIUEH SOFIE SYED AKIN GUMP STRAUSS HAUER & FELD LLP One Bryant Park New York, New York 10036 Telephone: (212) 872-1000 Facsimile: (212) 872-1002 Attorneys for Amici Curiae i TABLE OF CONTENTS CORPORATE DISCLOSURE STATEMENT ......................................................... 1 INTEREST OF AMICI CURIAE ............................................................................... 2 PRELIMINARY STATEMENT AND SUMMARY OF ARGUMENT ................ 13 ARGUMENT ........................................................................................................... 15 I. Batson and Its Progeny Seek to Prevent Prosecutors from Striking Potential Jurors Based on Invidious Stereotypes........................................... 15 II. Color Discrimination Presents Precisely the Harms that Batson and its Progeny Aim to Prevent ................................................................................. 18 A. Darker-Skinned Individuals Have Continuously Been Stereotyped as Less Qualified Than Lighter-Skinned Individuals Solely Based on Skin Color ................................................................................................. 19 B. Darker-Skinned Individuals Are Regularly Deprived of Benefits, Rights, Privileges, and Opportunities Afforded to Lighter-Skinned Individuals ................................................................................................ 22 1. Employment ........................................................................................ 23 2. Education ............................................................................................. 26 3. Politics ................................................................................................. 28 4. Dating, Marriage, and Adoption ......................................................... 31 5. Pop Culture .......................................................................................... 32 III. The People’s Administrability Concerns Lack Merit .................................... 34 A. Courts Are Well-Equipped to Identify Discrimination on the Basis of Skin Color ............................................................................................ 35 1. 1866 Civil Rights Act .......................................................................... 36 2. 1964 Civil Rights Act .......................................................................... 37 3. Section 1982 and the Fair Housing Act .............................................. 39 ii B. Color Is No Less Administrable a Category Than Race Under Batson ... 40 C. Any Administrability Concern Has Minimal Impact Given That the Prosecutor Can Simply Provide a Race-Neutral Explanation for the Strike. ........................................................................................................ 42 CONCLUSION ........................................................................................................ 44 iii TABLE OF AUTHORITIES Cases Alexander v. Louisiana, 405 U.S. 625 (1972) .............................................................................................. 7 Arrocha v. City Univ. of New York, 2004 WL 594981 (E.D.N.Y. Feb. 9, 2004). ....................................................... 38 Batson v. Kentucky, 476 U.S. 79 (1986) .......................................................................................passim Bryant v. Bell Atl. Maryland, Inc., 288 F.3d 124 (4th Cir. 2002) .............................................................................. 39 Carter v. Jury Commission, 396 U.S. 320 (1970) .............................................................................................. 7 Castaneda v. Partida, 430 U.S. 482 (1977) ............................................................................................ 18 Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991) .............................................................................................. 7 Felix v. Marquez, 1980 WL 242 (D.D.C. Sept. 11, 1980) ............................................................... 38 Felix v. Marquez, 1981 WL 275 (D.D.C. Mar. 26, 1981) ............................................................... 39 Foster v. Chatman, 136 S. Ct. 1737 (2016) ........................................................................................ 18 Georgia v. McCollum, 505 U.S. 42 (1992) .......................................................................................... 7, 15 Gill v. Bank of Am. Corp., 2015 WL 4349935 (M.D. Fla. July 14, 2015) .................................................... 39 Ham v. South Carolina, 409 U.S. 524 (1973) .............................................................................................. 7 iv Hernandez v. New York, 500 U.S. 352 (1991) ............................................................................................ 18 Hunter v. Texas Energy Servs. LP, 14-cv-142, 2014 WL 5426454 (S.D. Tex. Oct. 23, 2014) .................................. 39 J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994) ...................................................................................... 16, 18 Jatoi v. Hurst-Euless-Bedford Hosp. Auth., 807 F.2d 1214 (5th Cir. 1987) ............................................................................ 41 Johnson v. California, 543 U.S. 499 (2005) .............................................................................................. 7 Johnson v. California, 545 U.S. 162 (2005) ............................................................................................ 17 Jordan v. Wheelan Security, 30 F. Supp. 3d 746 (N.D. Ill. 2014) .................................................................... 36 McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273 (1976) ............................................................................................ 37 Miller-El v. Cockrell, 537 U.S. 322 (2003) .............................................................................................. 7 Miller-El v. Dretke, 545 U.S. 231 (2005) ..................................................................................... 17, 43 Ozawa v. United States, 260 U.S. 178 (1922) ............................................................................................ 41 People v. Allen, 86 N.Y.2d 101 (1995) ................................................................................... 17, 44 People v. Bridgeforth, 119 A.D.3d 600 (2014) ......................................................................................... 2 People v. Childress, 81 N.Y.2d 263 (1993) ......................................................................................... 18 v People v. Hecker, 15 N.Y.3d 625 (2010) ......................................................................................... 17 People v. Kern, 75 N.Y.2d 638 (1990) ......................................................................................... 18 Pourghoraishi v. Flying J, Inc., 449 F.3d 751 (7th Cir. 2006) .............................................................................. 41 Powers v. Ohio, 499 U.S. 400 (1991) ................................................................................ 14, 16, 34 Purkett v. Elem, 514 U.S. 765 (1995) ............................................................................................ 17 Rico v. Leftridge-Byrd, 340 F.3d 178 (3d Cir. 2003) ......................................................................... 41, 42 Rodriguez v. Gattuso, 795 F. Supp. 860 (N.D. Ill. 1992) ....................................................................... 39 Saint Francis College v. Al- Khazarijia, 481 U.S. 603 (1987). ..................................................................................... 36, 41 Shaw v. Reno, 509 U.S. 630 (1993) ............................................................................................ 23 Snyder v. Louisiana, 552 U.S. 472 (2008) ............................................................................................ 43 Strauder v. West Virginia, 100 U.S. 303 (1880) ............................................................................................ 16 Swain v. Alabama, 380 U.S. 202 (1965) .............................................................................................. 7 Thiel v. Southern Pacific Co., 328 U.S. 217 (1946) ............................................................................................ 16 Turner v. Fouche, 396 U.S. 346 (1970) .............................................................................................. 7 vi United States v. Brown, 352 F.3d 654 (2d Cir. 2003) ............................................................................... 18 United States v. Cruikshank, 92 U.S. 542 (1875) .............................................................................................. 36 United States v. Dolla, 177 F. 101 (5th Cir. 1910) .................................................................................. 22 United States v. Thind, 261 U.S. 204 (1923) ...................................................................................... 40, 41 Vigil v. The City of Denver, 1977 WL 41 (D. Colo. May 23, 1977). .............................................................. 36 Vill. of Freeport v. Barrella, 814 F.3d 594 (2d Cir. 2016) ......................................................................... 40, 41 Walker v. IRS, 713 F. Supp. 403 (N.D. Ga. 1989). ..................................................................... 38 Williams v. Wendler, 530 F.3d 584 (7th Cir. 2008) .............................................................................. 39 Statutes 42 U.S.C. § 1982 ...................................................................................................... 39 42 U.S.C. § 2000e-2 ................................................................................................. 37 1866 Civil Rights Act Section §1981 ................................................................ 35, 37 N.Y. Const., Art. I, § 11 ........................................................................................... 16 Other Authorities Arthur H. Goldsmith, Darrick Hamilton & William Darity Jr., From Dark to Light, J. Hum. Res. 701 (2007) ............................................................. 25 Bandana Purkayasatha, Negotiating Ethnicity: Second-Generation South Asian Americans Traverse A Transnational World (Rutgers Univ. Press 2005) ................................................................................................ 30 vii Christina Gomez, The Continual Significance of Skin Color: An Exploratory Study of Latinos in the Northeast,22 Hisp. J. Behav. Sci. 94 (2000) ............................................................................................... 25, 27 Cong. Globe, 39th Cong., 1st Sess., 211 (1866) ........................................................ 37 Cynthia E. Nance, Colorable Claims: The Continuing Significance of Color Under Title VII Forty Years After Its Passage, 26 Berkeley J. Empl. & Labor L. 435 (2005) .......................................... 19, 20, 21, 24, 25, 35 Federal Glass Ceiling Commission, Good for Business: Making Full Use of the Nation’s Human Capital (1995) ........................................................ 24 Francis J. Vaas, Title VII: Legislative History, 7 B.C.L. Rev. 431 (1966) .................................................................................................................. 37 Igor Ryabov, Colorism and Educational Outcomes of Asian Americans: Evidence from the National Longitudinal Study of Adolescent Health, 19 Soc. Psychol. Educ. 303 (June 2016) ....................... 27, 28 Igor Ryabov & Franklin W. Goza, Phenotyping and Adolescence-to- Adulthood Transitions Among Latinos, 6 Race Soc. Probs. 342 (2014) .................................................................................................................. 27 Jennifer Hochschild & Vesla Weaver, The Skin Color Paradox and the American Racial Order, 86 Soc. Forces 1 (Univ. of N.C. Press Dec. 2007) ...................................................................................19, 20, 28, 29, 32 Jennifer L. Eberhardt, Paul G. Davies, Valerie J. Purdie-Vaughns & Sheri Lynn Johnson, Looking Deathworthy: Perceived Stereotypicality of Black Defendants Predicts Capital-Sentencing Outcomes, 17 Psychol. Sci. 383 (2006) .............................................................. 20 Keith Maddox & Stephanie Gray, Cognitive Representations of Black Americans: Reexploring the Role of Skin Tone, 28 Personality & Soc. Psychol. Bull. 250 (2002) ........................................................................... 20 Kim D. Chanbonpin, Between Black and White: The Coloring of Asian Americans, 14 Wash. U. Global Stud. L. Rev. 637 (2015) .......... 23, 26, 31 Kimberly Jade Norwood, “If You Is White, You’s Alright….”14 Wash. U. Global Stud. L. Rev. 585 (2015) ........................................................ 27, 31, 33 viii Lance Hannon, White Colorism, 2 Soc. Currents 13 (2015) ....................... 20, 21, 27 Leonard M. Baynes, If It’s Not Just Black and White Anymore, Why Does Darkness Cast a Longer Discriminatory Shadow than Lightness? An Investigation and Analysis of the Color Hierarchy, 75 Denv. U.L. Rev. 131 (1997) .......................................................................... 23 Margaret Hunter, The Persistent Problem of Colorism: Skin Tone, Status, and Inequality, Sociology Compass 237 (2007) ..............................passim Michael Hughes & Bradley Hertel, The Significance of Color Remains: A Study of Life Chances, Mate Selection, and Ethnic Consciousness Among Black Americans, 68 Soc. Forces 1105 (Univ. of N.C. Press June 1990) ............................................................. 19, 21, 24 Nancy Leong, Multiracial Identity and Affirmative Action, 12 UCLA Asian Pac. Am. L.J. 1 (2007) .............................................................................. 35 Nayda Terkildson, When White Voters Evaluate Black Candidates: The Processing Implications of Candidate Skin Color, Prejudice, and Self-Monitoring, 37 Am. J. Pol. Sci. 1032 (1993) ....................................... 28 Neha Mishra, India and Colorism: The Finer Nuances, 14 Wash. U. Global Stud. L. Rev. 725 (2015) ......................................................................... 32 Peter Holley, Abby Phillip & Abby Ohlheiser, Alabama Police Officer Arrested after Indian Grandfather Left Partially Paralyzed, Wash. Post (Feb. 12, 2015) ................................................................................. 20 Richard N. Goodwin, President Lyndon Johnson: The War Within, N.Y. Times (Aug. 21, 1988) ............................................................................... 30 Rodolfo Espino & Michael M. Franz, Latino Phenotypic Discrimination Revisited: The Impact of Skin Color on Occupational Status, 83 Soc. Sci. Q. 612 (2002) ............................................................................................... 25 Susan Koshy, Category Crisis: South Asian Americans and Questions of Race and Ethnicity, 7 Diaspora: J. Transnatl. Stud. 285 (1998) .................... 41 Ta-Nehisi Coates, The Appropriation of Nina Simone, The Atlantic (Mar. 17, 2016) ................................................................................................... 32 ix Tanzina Vega, Stir Builds Over Actress to Portray Nina Simone, N.Y. Times (Sept. 12, 2012) ........................................................................................ 32 Taunya Lovell Banks, Colorism: A Darker Shade of Pale, 47 UCLA L. Rev. 1705 (2000) ...................................................................................... 24, 32 Taunya Lovell Banks, Colorism Among South Asians: Title VII and Skin Tone Discrimination, 14 Wash. U. Global Stud. L. Rev. 665 (2015) ............................................................................................................ 21, 32 The Un-American Senator, L.A. Times (Aug. 21, 2006) ........................................ 31 Tim Craig & Michael D. Shear, Allen Quip Provokes Outrage, Apology, Wash. Post (Aug. 15, 2006) ................................................................ 30 Trina Jones, Intra-Group Preferencing: Proving Skin Color and Identity Performance Discrimination, 34 N.Y.U. Rev. L. & Soc. Change 657 (2010) .............................................................................................. 29 Trina Jones, Shades of Brown: The Law of Skin Color, 49 Duke L.J. 1487 (2000) ............................................................................passim Trina Jones, The Significance of Skin Color in Asian and Asian- American Communities: Initial Reflections, 3 U.C. Irv. L. Rev. 1105 (2013) ......................................................................................................... 32 U.S. Equal Emp’t Opportunity Comm’n, Facts About Race/Color Discrimination (2008), https://www.eeoc.gov/facts/fs-race.html ...................... 37 U.S. Equal Emp’t Opportunity Comm’n, Questions and Answers About Race and Color Discrimination in Employment (2006), https://www.eeoc.gov/policy/docs/qanda_race_color.html ................................ 41 Vinay Harpalani, To Be White, Black, or Brown? South Asian Americans and the Race-Color Distinction, 14 Wash. U. Global Stud. L. Rev. 609 (2015)............................................................................... 29, 41 Walter Allen, Edward Telles & Margaret Hunter, Skin Color, Income and Education: A Comparison of African Americans and Mexican Americans,12 Nat’l. J. Soc. 130 (2000) ........................................................ 20, 26 1 CORPORATE DISCLOSURE STATEMENT Pursuant to the Rules of the Court of Appeals, 22 N.Y.C.R.R. § 500.l(f), Amici Curiae make the following disclosure: The Fred T. Korematsu Center for Law and Equality, the Anti-Defamation League, Asian Americans Advancing Justice, the Asian American Bar Association of New York, the Asian American Legal Defense and Education Fund, the Hispanic National Bar Association, LatinoJustice PRLDEF, Inc., the Metropolitan Black Bar Association, the NAACP Legal Defense & Educational Fund, Inc., the National Asian Pacific American Bar Association, the National Bar Association, the Society of American Law Teachers, Inc., and the South Asian Bar Association of North America are not-for-profit organizations with no parents, subsidiaries, or affiliates. The National Native American Bar Association has an affiliate 501(c)(3) not-for- profit charitable arm, the National Native American Bar Association Foundation, but has no other parents, subsidiaries, or affiliates. The National Asian Pacific American Woman’s Forum is fiscally sponsored by the Tides Center. The South Asian Bar Association of New York has an affiliate 501(c)(3) not-for-profit charitable arm, the South Asian Bar Association of New York Fund, Inc., but has no other parents, subsidiaries, or affiliates. 2 INTEREST OF AMICI CURIAE Amici curiae—bar associations, advocacy organizations, and professors of law specializing in American legal history, constitutional law, criminal law and procedure, civil rights, capital punishment, and race, gender and discrimination— submit this brief in support of Defendant Joseph Bridgeforth’s appeal from the Second Department, which held that Defendant failed to establish a prima facie violation under Batson v. Kentucky when he asserted that the prosecutor struck a prospective juror based on her dark skin color. 119 A.D.3d 600, 601. Drawing from their collective experiences, amici recognize that color discrimination inflicts lasting harms both on our justice system and on society as a whole. Accordingly, amici have a strong interest in ensuring that courts eradicate color discrimination from the prosecutor’s use of peremptory strikes, and, where an inference of such discrimination exists, that courts require the prosecutor to provide a neutral explanation for the strike. The Fred T. Korematsu Center for Law and Equality (“Korematsu Center”) is a non-profit organization based at the Seattle University School of Law. The Korematsu Center works to advance justice through research, advocacy, and education. Inspired by the legacy of Fred Korematsu, who defied military orders during World War II that ultimately led to the unlawful incarceration of 110,000 Japanese Americans, the Korematsu Center works to advance social justice for all. 3 It has a special interest in promoting fairness in the courts of our country. That interest includes ensuring that effective remedies exist to address implicit and explicit bias in the courtroom. The Korematsu Center also works to understand and remedy the race and color-based inequality that plagues our criminal justice system, including during jury selection. The Korematsu Center does not, in this brief or otherwise, represent the official views of Seattle University. The Anti-Defamation League (“ADL”) was founded in 1913 to combat anti- Semitism and all forms of bigotry, to defend democratic ideals, and to secure justice and fair treatment to all. ADL is vitally interested in protecting the civil rights of all persons and ensuring that each individual receives equal treatment under the law regardless of race, color, ethnicity, religion, sex, sexual orientation, or gender identity. Consistent with its mission, ADL is committed to working to eliminate bias in the criminal justice system. Asian Americans Advancing Justice (“Advancing Justice”) is a national affiliation of five independent nonprofit, nonpartisan organizations: Asian Americans Advancing Justice | AAJC, Asian Americans Advancing Justice | Asian Law Caucus, Asian Americans Advancing Justice | Chicago, Asian Americans Advancing Justice | Los Angeles, and Asian Americans Advancing Justice | Atlanta. Through litigation, direct legal services, policy advocacy, community outreach and education, and organizing, Advancing Justice seeks to promote a fair and equitable 4 society for all by working for civil and human rights and empowering Asian Americans and Pacific Islanders and other underserved communities. Members of Advancing Justice strongly believe that our legal institutions including our jury system cannot operate legitimately unless we are vigilant in ensuring that they are free from all forms of discrimination and reflect the racial and ethnic diversity in our larger society. The Asian American Bar Association of New York (“AABANY”) was formed in 1989 as a not-for-profit corporation to represent the interests of New York Asian-American attorneys, judges, law professors, legal professionals, legal assistants, paralegals, and law students. The mission of AABANY is to improve the study and practice of law, and the fair administration of justice for all by ensuring the meaningful participation of Asian Americans in the legal profession. The Asian American Legal Defense and Education Fund (“AALDEF”), headquartered in New York City and founded in 1974, is a national organization that protects and promotes the civil rights of Asian Americans. By combining litigation, advocacy, education, and organizing, AALDEF works with Asian American communities across the country to secure human rights for all. Discrimination based on “color” in a Batson challenge is no different from the parallel challenges based on race and national origin; all of these categories are 5 unlawful under the equal protection clause. Asian Americans have suffered and continue to suffer because of discrimination based on color. The membership of amicus curiae the Hispanic National Bar Association (“HNBA”) comprises thousands of Latino lawyers, law professors, law students, legal professionals, state and federal judges, legislators, and bar affiliates across the country. The HNBA supports Hispanic legal professionals and is committed to advocacy on issues of importance to the 53 million people of Hispanic heritage living in the United States. The HNBA regularly petitions Congress and the Executive on behalf of all members of the communities it represents. LatinoJustice PRLDEF, Inc. (“LatinoJustice”) is a national not-for-profit civil rights organization that has defended the constitutional rights and equal protection of all Latinos under the law. LatinoJustice’s continuing mission is to promote the civic participation of the greater pan-Latino community in the United States, to cultivate Latino community leaders, and to engage in and support law reform litigation across the country addressing criminal justice, education, employment, fair housing, immigrants’ rights, language rights, redistricting, and voting rights. During its 44-year history, LatinoJustice has litigated numerous cases in both state and federal courts challenging multiple forms of racial discrimination including discriminatory policing and law enforcement practices. LatinoJustice supports greater transparency and fairness in our justice system, and 6 judicial recognition that skin color-based racial discrimination is a constitutionally cognizable group for Batson purposes. The purpose of the Metropolitan Black Bar Association (“MBBA”) is to provide a forum to advance diversity and inclusion in the legal community and address legal issues affecting the citywide community. Specifically, MBBA advances the progress and enhancement of lawyers, with a focus on Black lawyers and lawyers of color, and building the pipeline of talent for future lawyers; develops jurisprudence and promotes the ethical practice of law; partners with legal societies, governmental agencies, lawyers of other nations, and the public in general to advance its purpose; commits its time, talent, and resources to the community; and will do any and all things necessary and proper for the accomplishment of these purposes, to the same extent, and in the same manner as permitted by law. Undergirding MBBA’s mission and activities is a fundamental commitment to equality. The current state of the law does not promote equality of treatment. The NAACP Legal Defense & Educational Fund, Inc. (“LDF”) is the nation’s first and foremost civil rights law organization. Through litigation, advocacy, public education, and outreach, LDF strives to secure equal justice under the law for all Americans, and to break down barriers that prevent African Americans from realizing their basic civil and human rights. LDF has long been 7 concerned about the influence of race on the administration of the criminal justice system in particular and with laws, policies, and practices that have a disproportionate negative impact on communities of color, especially African Americans. For example, LDF served as counsel of record in cases challenging racial bias in the criminal justice system, including the racial make-up of juries, Swain v. Alabama, 380 U.S. 202 (1965), Alexander v. Louisiana, 405 U.S. 625 (1972), and Ham v. South Carolina, 409 U.S. 524 (1973); pioneered the affirmative use of civil actions to end jury discrimination in Carter v. Jury Commission, 396 U.S. 320 (1970), and Turner v. Fouche, 396 U.S. 346 (1970); and appeared as amicus curiae in cases involving the use of race in peremptory challenges in Johnson v. California, 543 U.S. 499 (2005), Miller-El v. Cockrell, 537 U.S. 322 (2003), Georgia v. McCollum, 505 U.S. 42 (1992), Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991), and Batson v. Kentucky, 476 U.S. 79 (1986) (overruling Swain). The National Asian Pacific American Bar Association (“NAPABA”) is the national association of Asian Pacific-American attorneys, judges, law professors, and law students, representing the interests of nearly seventy-five state and local Asian Pacific-American bar associations and nearly 50,000 attorneys who work in solo practices, large firms, corporations, legal services organizations, nonprofit organizations, law schools, and government agencies. Since its inception in 1988, 8 NAPABA has served as the national voice for Asian Pacific Americans in the legal profession and has promoted justice, equity, and opportunity for Asian Pacific Americans. In furtherance of its mission, NAPABA promotes a diverse and inclusive legal system free of discrimination. The National Asian Pacific American Women’s Forum (“NAPAWF”) is the only national, multi-issue Asian and Pacific Islander (AAPI) women’s organization in the country. NAPAWF’s mission is to build a movement to advance social justice and human rights for AAPI women and girls. Jury participation is a privilege and responsibility extended to all citizens of the United States. Any exclusion of AAPI individuals from juries sends the message to the AAPI women and girls NAPAWF serves that they are not included nor represented in our system of justice, and would have an adverse impact on the inclusion of AAPI women in civic engagement. The National Bar Association (“NBA”) is the largest and oldest association of predominantly African-American attorneys and judges in the United States. The NBA was founded in 1925 when there were only 1,000 African-American attorneys in the entire country and when other national bar associations, such as the American Bar Association, did not admit African-American attorneys. Throughout its history, the NBA consistently has advocated on behalf of African Americans and other minority populations regarding issues affecting the legal profession. The 9 NBA represents approximately 66,000 lawyers, judges, law professors, and law students, and it has over eighty affiliate chapters throughout the world. The National Native American Bar Association (“NNABA”) is the oldest and largest association of predominantly Native American attorneys in the United States. Founded in 1973 when the first group of Native American attorneys was entering the legal profession, NNABA represents the interests of approximately 2,700 Native American attorneys. NNABA’s core mission since its inception has been to promote the development of Native American attorneys who share the communal responsibility of advancing justice for Native Americans. The Society of American Law Teachers, Inc. (“SALT”), founded in 1973, is the largest independent membership organization of legal academics in the United States. SALT’s membership includes law professors, deans, librarians, and administrators from law schools across the country. Virtually all active SALT members hold full-time positions in legal education. The South Asian Bar Association of New York (“SABANY”) is an organization dedicated to the needs, concerns and interests of lawyers of South Asian heritage and the South Asian community in the greater New York City area. The South Asian Bar Association of North America (“SABA North America”) is a voluntary bar organization that serves as an umbrella organization to 26 chapters in the United States and Canada representing over 6,000 lawyers, 10 judges, and law students. SABA North America is a recognized forum for the professional growth and advancement for South Asian lawyers in North America and seeks to safeguard the civil rights and liberties of the South Asian community across the continent. The amici professors of law are as follows: • Deborah Ahrens is an Associate Professor of Law at Seattle University School of Law. • Deborah N. Archer is a Professor of Law, Co-Director of the Impact Center for Public Interest Law, and Director of the Racial Justice Project at New York Law School. • John H. Blume is the Samuel F. Leibowitz Professor of Trial Techniques, Director of Clinical, Advocacy and Skills Programs, and Director of the Death Penalty Project at Cornell Law School. • Paulette M. Caldwell is a Professor of Law at New York University School of Law. • Gilbert Paul Carrasco is a Professor of Law at Willamette University College of Law. • Meera E. Deo, Ph.D., J.D., is an Associate Professor of Law at Thomas Jefferson Law School. 11 • Pamela Edwards is a Professor of Law and Director of the Center for Diversity in the Legal Profession at CUNY School of Law. • Neil Gotanda is a Professor of Law at Western State College of Law. • Vinay Harpalani is an Associate Professor of Law at Savannah Law School. • Keith M. Harrison is a Visiting Professor of Law and Acting Associate Dean at Savannah Law School. • Stacy Hawkins is an Associate Professor of Law at Rutgers Law School. • Tanya Hernandez is a Professor of Law and Associate Director of the Center on Race, Law and Justice at Fordham University School of Law. • Lisa C. Ikemoto is the Martin Luther King, Jr. Professor of Law at University of California-Davis School of Law. • Donna H. Lee is a Senior Associate Dean of Clinical Programs and a Professor of Law at CUNY School of Law. • Robin A. Lenhardt is a Professor of Law and Director of the Center on Race, Law and Justice at Fordham University School of Law. • Tayyab Mahmud, Ph.D, J.D., is a Professor of Law and Director of the Center for Global Justice at Seattle University School of Law. • Kevin Maillard is a Professor of Law at Syracuse University College of Law. • Maya Manian is a Professor of Law at University of San Francisco School of Law. 12 • Goldburn P. Maynard, Jr. is an Assistant Professor of Law at University of Louisville Brandeis School of Law. • M. Isabel Medina is the Ferris Family Distinguished Professor of Law at Loyola University College of Law. • Kimberly Norwood is the Henry H. Oberschelp Professor of Law and Professor of African and African American Studies at Washington University School of Law. • Christopher Ogolla is an Associate Professor of Law at Savannah Law School. • Gary Peller is a Professor of Law at Georgetown University Law Center. • Shakira D. Pleasant is an Associate Professor of Law at Savannah Law School. • Marc Roark is a Professor of Law at Savannah Law School. • Darren Rosenblum is a Professor of Law at the Elizabeth Haub School of Law at Pace University. • Professor Leila N. Sadat is the James Carr Professor of International Criminal Law and Director of the Whitney R. Harris World Law Institute at Washington University School of Law. • Andrew Siegel is an Associate Professor of Law and Associate Dean for Planning and Strategic Initiatives at Seattle University School of Law. 13 • Kendall Thomas is the Nash Professor of Law at Columbia Law School. • Daniel A. Warshawsky is a Professor of Law and member of the Racial Justice Project at New York Law School. • Andrew McCanse Wright is an Associate Professor of Law at Savannah Law School. • Steven Zeidman is a Professor of Law and Director of the Criminal Defense Clinic at CUNY School of Law. PRELIMINARY STATEMENT AND SUMMARY OF ARGUMENT Excluding an individual from jury service based on the color of her skin violates the Equal Protection Clause of the Federal and New York Constitutions. As set forth in Batson v. Kentucky, a prosecutor who has exercised a peremptory strike potentially motivated by racial discrimination must provide, at a minimum, a race-neutral explanation for the strike. 476 U.S. 79, 97 (1986). Here, the prosecutor failed to provide such an explanation when Defendant challenged the prosecutor’s peremptory strike of a dark-skinned Indian woman from the jury.1 Notwithstanding this failure, the People argue that the strike was appropriate because skin color, unlike race, is not a protected characteristic under the federal and state Equal Protection Clauses, and because permitting Batson 1 The material facts underlying Defendant’s Batson challenge, including the color of the stricken juror’s skin and the prosecutor’s failure to provide any explanation for striking this juror, are not in dispute here. See generally A313-319. 14 challenges based on skin color would be too difficult to administer. People’s Br. 8- 10. Neither point is correct. Indeed, there is no question that Batson protects against discrimination on the basis of both race and skin color. Moreover, given the relatively low burden Batson places on a prosecutor, and the importance of preventing the “stigma or dishonor” that accompanies a prosecutor’s use of the “raw fact of skin color” to “determine the objectivity or qualifications of a juror,” Powers v. Ohio, 499 U.S. 400, 410 (1991), Defendant was entitled to raise a Batson challenge on the basis of skin color discrimination here. This brief proceeds in three parts. First, the brief reiterates Batson’s purpose in protecting against discriminatory peremptory strikes arising out of stereotypes based on characteristics like race, gender, religion, or skin color. Importantly, once a defendant has made a prima facie showing supporting an inference of discrimination, the burden falls on the prosecutor to provide a neutral explanation for the strike. Second, the brief identifies substantial empirical research outlining the historical and continued effects of color discrimination in society. The People’s first argument—at its core, that Defendant overstates the reality of color-based discrimination—is undercut by numerous academic studies documenting both the stereotypes attached to darker skin and the resulting discrimination that darker- 15 skinned individuals face in all facets of society. These harms are precisely those that Batson seeks to guard against with respect to jury selection. Finally, the brief addresses the People’s administrability concerns. The People’s brief fails to acknowledge decades of precedent showing that courts have been capable of analyzing color discrimination in the context of, inter alia, employment, housing, and federal financial assistance. The People also overlook the fact that race-based discrimination, which is undisputedly a Batson-protected group, is itself difficult to define and carries similar administrability problems. Indeed, the People’s entire administrability argument appears to mirror a similar argument raised by the dissent in Batson itself, which the Batson Court flatly rejected. See Batson, 476 U.S. at 129-30 & n.10. In any event, any administrability concern can simply be addressed by a neutral explanation for the strike. That the prosecutor failed to do so here does not mean, as the People would have it, that the Court should tolerate color discrimination in jury selection altogether. ARGUMENT I. Batson and Its Progeny Seek to Prevent Prosecutors from Striking Potential Jurors Based on Invidious Stereotypes a. Batson held that a peremptory challenge “based on either the race of the juror or the racial stereotypes held by the” prosecutor violates the Equal Protection Clause of the Fourteenth Amendment. Georgia v. McCollum, 505 U.S. 42, 59 16 (1992); see also Batson, 476 U.S. at 89.2 In so holding, the Supreme Court reaffirmed the long-recognized principle that “[a] person’s race simply ‘is unrelated to his fitness as a juror.’” Batson, 476 U.S. at 87 (quoting Thiel v. Southern Pacific Co., 328 U.S. 217, 223-24 (1946)). Rather, a juror’s competence to serve “ultimately depends on an assessment of individual qualifications and ability impartially to consider evidence presented at a trial.” Id. The Supreme Court has also recognized that excluding prospective jurors based on such stereotypes both demeans the individual juror’s dignity and decreases public faith in the justice system as a whole. It has squarely rejected the suggestion that “no particular stigma or dishonor results if a prosecutor uses the raw fact of skin color to determine the objectivity or qualifications of a juror.” Powers, 499 U.S. at 410 (emphasis added). To the contrary, “[s]triking individual jurors on the assumption that they hold particular views simply because of” their race or sex “is ‘practically a brand upon them, affixed by the law, an assertion of their inferiority.’” J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 142 (1994) (quoting Strauder v. West Virginia, 100 U.S. 303, 308 (1880)). 2 See also N.Y. Const., Art. I, § 11 (“No person shall, because of race, color, creed, or religion, be subjected to any discrimination in his or her civil rights[.]”). 17 b. Batson’s familiar three-step inquiry provides a framework to root out peremptory strikes based on such protected characteristics.3 Under Batson, “once the opponent of a peremptory challenge has made out a prima facie case of *** discrimination (step one), the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step two).” Purkett v. Elem, 514 U.S. 765, 767 (1995). If no explanation is tendered, the strike is impermissible. People v. Allen, 86 N.Y.2d 101, 109 (1995). “If a race-neutral explanation is tendered, the trial court must then decide (step three) whether the opponent of the strike has proved purposeful *** discrimination.” Purkett, 514 U.S. at 767. Making out a prima facie case “is not intended to be onerous[.]” People v. Hecker, 15 N.Y.3d 625, 651 (2010). A party objecting to a strike need only “produc[e] evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred,” rather than proving it more likely than not that a strike was made with discriminatory intent. Johnson v. California, 545 U.S. 162, 170 (2005). Moreover, once a challenge has been raised, the burden imposed on the prosecution by moving from Step 1 (prima facie case) to Step 2 (explanation) is 3 In light of the inescapable tension between peremptory challenges and a commitment to eradicating discrimination in jury selection, several members of the judiciary have called for peremptory challenges to be abandoned, or at least reconsidered. See, e.g., Miller-El v. Dretke, 545 U.S. 231, 272 (2005) (Breyer, J., concurring) (collecting citations). Batson did not go that far, whether or not it should have. 18 minimal. When asked to explain a strike, “the reason offered by the prosecutor *** need not rise to the level of a challenge for cause ***.” Hernandez v. New York, 500 U.S. 352, 362–63 (1991). But that is all the more reason why a non- discriminatory explanation must be provided. II. Color Discrimination Presents Precisely the Harms that Batson and its Progeny Aim to Prevent Courts have extended Batson’s protections to discrimination based on sex, ethnicity, and religion. See J.E.B., 511 U.S. 127 (sex); Hernandez, 500 U.S. 352 (ethnicity); United States v. Brown, 352 F.3d 654, 668 (2d Cir. 2003) (religion). They have found similar protections rooted in state law. E.g., People v. Kern, 75 N.Y.2d 638, 650 (1990). And they have stressed, as did Batson, that even a single discriminatory strike is intolerable. E.g., Foster v. Chatman, 136 S. Ct. 1737, 1747 (2016); People v. Childress, 81 N.Y.2d 263, 267 (1993) (“[T]he exclusion of even one member of a group for racial reasons is abhorrent to a fair system of justice.”). In each of these cases, as in Batson, a court held that an individual that was part of a group “capable of being singled out for differential treatment” was entitled, at a minimum, to a non-discriminatory explanation for a peremptory strike under the Equal Protection Clause. Batson, 476 U.S. at 94 (citing Castaneda v. Partida, 430 U.S. 482, 494 (1977)). The simple question presented by this case is whether a challenge on the basis of skin color is entitled to the same explanation under Batson Step 1. As seen below, given the pervasive discrimination on the 19 basis of skin color that continues to affect every facet of society, the answer must be “yes.” A. Darker-Skinned Individuals Have Continuously Been Stereotyped as Less Qualified Than Lighter-Skinned Individuals Solely Based on Skin Color Ample research shows that American society makes “assumptions about a person’s race, socioeconomic class, intelligence, and physical attractiveness” based solely on that person’s skin color.4 These assumptions fall along a well-established hierarchy: lighter skin is associated with positive traits, and darker skin is tied to negative ones. As a result, lighter-skinned individuals are “treated by others as though they are more competent than” darker-skinned individuals “though there is no information conveyed by the status itself indicating competency.”5 This, of course, is exactly what Batson was intended to prevent in the jury selection process. For decades, researchers have found that lighter-colored skin—across races—is associated with “good” characteristics like “attractiveness,”6 4 Trina Jones, Shades of Brown: The Law of Skin Color, 49 Duke L.J. 1487, 1499-1500 (2000). 5 Michael Hughes & Bradley Hertel, The Significance of Color Remains: A Study of Life Chances, Mate Selection, and Ethnic Consciousness Among Black Americans, 68 Soc. Forces 1105, 1116 (Univ. of N.C. Press June 1990). 6 Jennifer Hochschild & Vesla Weaver, The Skin Color Paradox and the American Racial Order, 86 Soc. Forces 1, 1 (Univ. of N.C. Press Dec. 2007); Cynthia E. Nance, Colorable Claims: The Continuing Significance of Color Under Title VII Forty Years After Its Passage, 26 20 “intelligence,”7 “prosperity,”8 “refinement,”9 “civility,”10 “virtue,”11 “personal charm,”12 “social mobility,”13 and “emotional stability.”14 Darker-colored skin, by contrast, calls to mind “bad” characteristics: “toughness,”15 “meanness,”16 “indigence,”17 “criminality,”18 and “failings in moral character, intellectual capacity and achievement drive.”19 One psychological study found, for example, that “[d]ark skin evokes fears of criminality or sharper memories of a purportedly criminal face.”20 And a real-world example of this unconscious association took Berkeley J. Empl. & Labor L. 435, 446-459 (2005); Margaret Hunter, The Persistent Problem of Colorism: Skin Tone, Status, and Inequality, Sociology Compass 237, 243 (2007). 7 Jones, supra note 4, at 1527; Nance, supra note 6, at 446-459; Lance Hannon, White Colorism, 2 Soc. Currents 13, 17 (2015). 8 Jones, supra note 4, at 1527. 9 Id. 10 Hunter, supra note 6, at 243. 11 Id. 12 Nance, supra note 6, at 446-459. 13 Id. 14 Id. at 446 n.59 (citing Keith Maddox & Stephanie Gray, Cognitive Representations of Black Americans: Reexploring the Role of Skin Tone, 28 Personality & Soc. Psychol. Bull. 250, 255 (2002)). 15 Id. at 1527. 16 Id. 17 Id. 18 Id. 19 Walter Allen, Edward Telles & Margaret Hunter, Skin Color, Income and Education: A Comparison of African Americans and Mexican Americans, 12 Nat’l. J. Soc. 130, 132 (2000). 20 Hochschild & Weaver, supra note 6, at 5 (internal citations omitted). In one study, researchers found that Black defendants with darker skin and other, more “stereotypically Black” physical traits were more than twice as likely to be sentenced to death as lighter-skinned or less stereotypically Black defendants. Jennifer L. Eberhardt, Paul G. Davies, Valerie J. Purdie- Vaughns & Sheri Lynn Johnson, Looking Deathworthy: Perceived Stereotypicality of Black Defendants Predicts Capital-Sentencing Outcomes, 17 Psychol. Sci. 383, 385 (2006). 21 place in 2015, when police officers in Madison, Alabama severely beat and injured a fifty-seven-year-old Indian immigrant after a suspicious caller reported him to be a “skinny Black guy.”21 This incident obviously raises other intertwined issues of policing and racial profiling, but aptly illustrates the lumping of dark-colored individuals into a single class of “suspect” individuals based simply on their skin color. Studies have identified similar color-based stereotypes—lighter skin “better”, darker skin “worse”—in Black,22 Latino,23 and Asian24 communities. Indeed, even as late as 1990, scholars were still testing—and debunking—the theory that “the relationship between light skin and high socioeconomic status” is because “those with light skin have more white ancestry and therefore more native ability.”25 Researchers have also traced this persistent view—that a “fair complexion” confers “a decided advantage” in society—across the course of American history.26 21 Peter Holley, Abby Phillip & Abby Ohlheiser, Alabama Police Officer Arrested after Indian Grandfather Left Partially Paralyzed, Wash. Post (Feb. 12, 2015), http://www.washingtonpost.com/news/morning-mix/wp/2015/02/11/alabama-cops-leave-a- grandfather-partially-paralyzed-after-frisk-goes-awry/. 22 Jones, supra note 4, at 1551; Nance, supra note 6, at 446-459. 23 Hannon, supra note 7, at 17. 24 Taunya Lovell Banks, Colorism Among South Asians: Title VII and Skin Tone Discrimination, 14 Wash. U. Global Stud. L. Rev. 665, 671-674 (2015). 25 Hughes & Hertel, supra note 5, at 1115 (emphasis added). 26 Nance, supra note 6, at 441. 22 In the post-Civil War era, for example, lighter-skinned Blacks created “separate communities in which skin color served as the key to access.”27 These included “color-conscious congregation[s],” where membership was determined by whether an individual’s skin color was lighter than a brown paper bag.28 These also included social clubs like the “Blue Vein Society of Nashville,” where entry was determined on whether the “applicant’s skin color was light enough for the veins in the wrist to be visible.”29 Similar skin-color litmus tests have been historically used to determine the rights and privileges of individuals of other races and ethnicities as well. To take one case, in United States v. Dolla, a South Asian immigrant was granted citizenship, a privilege then-reserved for only “White” immigrants, primarily on the ground that the “skin of his arm” was “sufficiently transparent for the blue color of the veins to show very clearly.” 177 F. 101, 102 (5th Cir. 1910). B. Darker-Skinned Individuals Are Regularly Deprived of Benefits, Rights, Privileges, and Opportunities Afforded to Lighter-Skinned Individuals Overt skin-color litmus tests, of course, are barred by the state and federal Equal Protection Clauses. Nevertheless, negative attitudes and stereotypes against darker-skinned individuals continue to manifest themselves as tangible harms 27 Jones, supra note 4, at 1515. 28 Id. at 1516. 29 Id. at 1515. 23 across all aspects of society. One survey of African Americans found that “darker- skinned African Americans are twice as likely to report that they have been victims of discrimination than those with lighter-skinned complexions.”30 Likewise, “darker, more Indian-looking Mexican Americans also reported a significantly greater amount of discrimination” than “lighter, more European-looking Mexican Americans.”31 Scholars have further observed that “[d]arker-skinned Asian groups are widely considered to be at the bottom of the Asian American social hierarchy.”32 Below, amici outline just a few examples of the societal harms imposed upon dark-skinned individuals by virtue of their skin color.33 1. Employment The United States government has itself acknowledged that darker-skinned individuals are generally denied access to more prestigious and better-paying jobs 30 Leonard M. Baynes, If It’s Not Just Black and White Anymore, Why Does Darkness Cast a Longer Discriminatory Shadow than Lightness? An Investigation and Analysis of the Color Hierarchy, 75 Denv. U.L. Rev. 131, 133-134 (1997). 31 Id. at 134. 32 Kim D. Chanbonpin, Between Black and White: The Coloring of Asian Americans, 14 Wash. U. Global Stud. L. Rev. 637, 644 (2015). 33 Batson does not require proof that a struck venireperson belongs to a “group” with a “common thread of attitudes, ideas or experiences.” Contra People Br. 33. Indeed, it makes no sense to hold that Batson—a doctrine aimed at eliminating the role of invidious stereotypes in jury selection—only applies if an objector can stereotype a “cognizable group” as having “common” attitudes, ideas or experiences. Cf. Shaw v. Reno, 509 U.S. 630, 647 (1993) (rejecting perception “that members of the same racial group *** think alike” as an “impermissible racial stereotype[]”). But to the extent that the People’s argument is premised on a belief that some threshold shared experience of discrimination is required, this section should be answer enough. 24 based on their skin color. In 1995, the Federal Glass Ceiling Commission (“FGCC”) conducted a study of “opportunities for, and artificial barriers to, the advancement of minority men and all women into management and decisionmaking positions” in American businesses.34 Among other things, the study concluded that “our society has developed an extremely sophisticated, and often denied, acceptability index based on gradations in skin color.”35 The FGCC’s findings have been borne out by numerous empirical studies. Lighter-skinned Blacks, for example, are paid more, hold more desirable jobs, and generally have a “higher socioeconomic status” than darker-skinned Blacks.36 Even after controlling for socioeconomic backgrounds at birth, studies find that individuals with lighter skin have “greater education, occupational prestige, personal income, and family income than those with darker skin.”37 As a result, lighter-skinned Blacks were “more likely to be employed as professional and technical workers” than darker-skinned Blacks, who “were more likely to be employed as laborers.”38 Indeed, one study, in trying to quantify the additional value society awards to lighter-colored skin, found that dark-skinned Blacks earned 34 Federal Glass Ceiling Commission, Good for Business: Making Full Use of the Nation’s Human Capital, 3 (1995). 35 Id. at 29 (emphasis added). 36 Nance, supra note 6, at 443. 37 Hughes & Hertel, supra note 5, at 1109 (emphasis added). 38 Taunya Lovell Banks, Colorism: A Darker Shade of Pale, 47 UCLA L. Rev. 1705, 1719 (2000). 25 “seventy cents for every dollar earned by a light-skinned black.”39 Another study concluded that, although Blacks as a whole earned lower mean hourly wages than Whites, light-skinned Blacks earned 8.6% less; dark-skinned Blacks, by contrast, earned 26.4% less.40 Similar studies show that darker-skinned Latinos—generally those with mixed African or Native American ancestry—have “lower socioeconomic status,” “lower earnings,” and “less schooling” than “their lighter skinned, European- looking counterparts.”41 A 2003 study, for example, found that “[w]hite Latinos *** had lower unemployment rates and lower poverty rates than black Latinos.”42 Other studies have found that darker-skinned Hispanics and Latinos receive “significantly lower earnings”43 and “significantly lower occupational prestige scores”44 than their lighter-skinned counterparts. Studies of Asian Americans reach similar conclusions. In Hawai’i, “light- skinned East Asian groups” are “overrepresented in white-collar industries,” while “[d]ark-skinned Asian Americans, including Pacific Islanders, are overrepresented 39 Nance, supra note 6, at 443. 40 Arthur H. Goldsmith, Darrick Hamilton & William Darity Jr., From Dark to Light, 42 J. Hum. Res. 701, 717 (2007). 41 Christina Gomez, The Continual Significance of Skin Color: An Exploratory Study of Latinos in the Northeast, 22 Hisp. J. Behav. Sci. 94, 95 (2000). 42 Id. 43 Id.; see also Hunter, supra note 6, at 243 (2007). 44 Rodolfo Espino & Michael M. Franz, Latino Phenotypic Discrimination Revisited: The Impact of Skin Color on Occupational Status, 83 Soc. Sci. Q. 612, 612 (2002). 26 in low-wage blue-collar industries.”45 More generally, researchers have found that society associates “lighter-skinned” Asian Americans—e.g., those with Chinese, Japanese, or Korean ancestry—with “socioeconomically privileged groups,” and “darker-skinned” Asian Americans—e.g., those with Hmong, Cambodian or Laotian ancestry—with “socioeconomically disadvantaged groups.”46 2. Education Darker-skinned individuals are also deprived of educational opportunities based on their skin color, such as where they go to school, how long they go to school, and how they are treated once at school. Multiple studies have demonstrated this “learning and earnings penalty” imposed on those with darker skin.47 Researchers have determined, for example, that the “education gap between light-skinned blacks and dark-skinned blacks” is “nearly identical” to the “education gap between whites and blacks.”48 “Darker skinned children,” in addition, “are much more likely to be disciplined” than their lighter-skinned 45 Chanbonpin, supra note 32, at 645. 46 Id. at 655. 47 Allen, Telles & Hunter, supra note 19, at 168. Discrimination on the basis of skin color further affects “housing access, ownership, and segregation,” all factors that contribute towards the quality of education received. See, e.g., Hunter, supra note 6, at 242. 48 Id. at 243. 27 classmates.49 In one study, darker-skinned Black female students were found to be “about three times more likely to be suspended at school than their light-skinned counterparts.”50 Similarly, “Latinos with dark skin are significantly less likely to graduate from high school and go to college than those with light skin.”51 Researchers found in one analysis that “lighter-skinned Mexican Americans complete more years of schooling than darker-skinned Mexican Americans even when their family backgrounds are similar.”52 In another, light-skinned Mexican Americans were found to have had about 1.5 more years of schooling than darker-skinned Chicanos.53 In a third line of studies, researchers have found that “lighter complexion among Asian American young adults of both sexes is associated with higher educational attainment.”54 Asian-American men with white skin “are approximately 2.4 times likely to hold a Bachelor’s degree than those with light 49 Kimberly Jade Norwood, “If You Is White, You’s Alright….” Stories About Colorism in America, 14 Wash. U. Global Stud. L. Rev. 585, 593 (2015). 50 Hannon, supra note 7, at 15. 51 Igor Ryabov & Franklin W. Goza, Phenotyping and Adolescence-to-Adulthood Transitions Among Latinos, 6 Race Soc. Probs. 342, 353 (2014). 52 Hunter, supra note 6, at 243. 53 Gomez, supra note 41, at 96. 54 Igor Ryabov, Colorism and Educational Outcomes of Asian Americans: Evidence from the National Longitudinal Study of Adolescent Health, 19 Soc. Psychol. Educ. 303, 321 (June 2016). 28 brown skin.”55 And despite the prevalence of the “model minority myth” of Asian Americans as universally well-educated high achievers, high school graduation rates of darker-skinned Southeast Asians “approximate those of Hispanics, the lowest among the US major minority groups.”56 3. Politics In the political arena, lighter-skinned individuals also enjoy advantages over darker-skinned individuals as well. For example, in an analysis of all African- American officials elected to the House of Representatives, Senate or a governor’s office since 1865, one study found that “light-skinned blacks have always been considerably overrepresented and dark-skinned blacks dramatically underrepresented as elected officials.”57 Similarly, in an experimental study to assess the effect of skin color on voting preferences, a hypothetical darker-skinned Black candidate “was evaluated much more harshly than his lighter-skinned peer” by prospective voters.58 Even when all other objective qualifications had been kept equal, after the hypothetical vote was tallied, the researcher found that the lighter- 55 Id. at 316. 56 Id. at 307. 57 Hochschild & Weaver, supra note 6, at 8; Nor is this data skewed by historical preferences. Another study noted that “since the 1960s, most Blacks elected or appointed to prominent governmental positions have had light skin.” Jones, supra note 4, at 1520. 58 Nayda Terkildson, When White Voters Evaluate Black Candidates: The Processing Implications of Candidate Skin Color, Prejudice, and Self-Monitoring, 37 Am. J. Pol. Sci. 1032, 1048 (1993). 29 skinned candidate had “prevailed over his darker opponent by an astonishing 18 percentage points.”59 Real-world examples of this preference for lighter skin can easily be found. During the 2008 Presidential election, for example, Senator Harry Reid was reported to have privately stated his belief that the United States was ready to embrace a black presidential candidate like then-Senator Barack Obama—“a light- skinned” African American “with no Negro dialect, unless he wanted to have one.”60 The benefits conferred by lighter skin color, too, were at the center of a controversy involving then-Governor of Louisiana Bobby Jindal, who is Indian- American, when he displayed a commissioned portrait of himself with a lightened skin tone in the Louisiana State Capitol, as well as a controversy involving South Carolina Governor Nikki Haley, another Indian-American, concerning her self- identification as “White” on her 2001 voter registration.61 Darker-skinned individuals, by contrast, continue to face outright discrimination in politics, including by being attacked with the same epithets 59 Hochschild & Weaver, supra note 6, at 10 (emphasis added). 60 Trina Jones, Intra-Group Preferencing: Proving Skin Color and Identity Performance Discrimination, 34 N.Y.U. Rev. L. & Soc. Change 657, 657 (2010) (internal citation omitted). 61 Vinay Harpalani, To Be White, Black, or Brown? South Asian Americans and the Race-Color Distinction, 14 Wash. U. Global Stud. L. Rev. 609, 623-24 (2015). 30 historically used against Blacks.62 For example, in 1965, Indian Prime Minister Lal Bahadur Shastri and Pakistani President Mohammed Ayub Khan were scheduled to visit the United States. However, after both leaders expressed opposition to the Vietnam War, President Lyndon Johnson cancelled their visits, remarking: “[a]fter all, what would Jim Eastland [the conservative Senator from Mississippi] say if I brought those two n****** over here.”63 To this day, Professor Bandana Purkayastha notes that this epithet continues to be directed at South Asian Americans. Another, more-recent incident occurred in 2006, during the campaign of former Virginia Senator George Allen. S.R. Sidarth, a twenty-year old campaign volunteer for Allen’s Democratic opponent, Jim Webb, was assigned to track and videotape Allen’s rallies across the state of Virginia. At one rally, Allen referred to Sidarth, who is a relatively dark-skinned Indian-American, by stating: “Let’s give a welcome to Macaca, here. Welcome to America and the real world of Virginia.”64 Sidarth was the only non-White person at the rally and caught the incident on videotape. Videotape of this incident spread quickly and widely on 62 See, e.g., Bandana Purkayasatha, Negotiating Ethnicity: Second-Generation South Asian Americans Traverse A Transnational World, 29 (Rutgers Univ. Press 2005) (discussing the experience of a South Asian medical student who was called the n-word as a child). 63 Richard N. Goodwin, President Lyndon Johnson: The War Within, N.Y. Times (Aug. 21, 1988), http://www.nytimes.com/1988/08/21/magazine/president-lyndon-johnson-the-war- within.html?pagewanted=all (brackets in original, epithet removed). 64 Tim Craig & Michael D. Shear, Allen Quip Provokes Outrage, Apology, Wash. Post (Aug. 15, 2006). 31 YouTube, and media soon reported that “macaca” referred to macaques—a species of monkey—and was considered an anti-Black racial epithet in French-speaking countries.65 4. Dating, Marriage, and Adoption Color bias also affects the realm of personal choice. Research has demonstrated that preferences in dating, marriage, and adoption largely skew in favor of lighter-skinned over darker-skinned individuals across all races. These preferences cut across all communities; “[g]iven the opportunity, many people will . . . choose to marry a lighter-skinned woman rather than a darker-skinned woman.”66 In Asian-American communities in particular, “differences in skin color frequently determine social standing and marriageability.”67 For many in these communities, “[d]ark skin tone is *** associated with poverty and ‘backwardness.’”68 And when families seek to adopt children, “the data suggest there is a preference for light skin and biracial children over dark-skinned children.”69 One of the more dramatic effects of these shared preferences for lighter- skinned romantic partners is the prevalent practice of “skin bleaching,” i.e., the use 65 The Un-American Senator, L.A. Times (Aug. 21, 2006). 66 Hunter, supra note 6, at 238. 67 Chanbonpin, supra note 32, at 642-643. 68 Hunter, supra note 6, at 239. 69 Norwood, supra note 49, at 595. 32 of chemical products to physically lighten one’s own skin color. This practice has been traced to communities all over the world, from East Asia to India to the Middle East to Africa to Europe and to Canada.70 And this practice is found here in the United States as well, as researchers have noted the popularity of “[a]dvertisements for skin bleach or fade crème” that continue to appear in numerous “national magazines aimed at black readers.”71 5. Pop Culture Finally, the practice of privileging lighter-skinned over darker-skinned individuals of a particular race is most visible in—and is likely reinforced by— popular culture. Across races, “[i]nstitutions ranging from advertising agencies to filmmakers to adoption agencies reinforce the dominant view that lighter is better.”72 For example, “[b]lack women who play romantic leads in major Hollywood films tend to have lighter skin and longer hair.”73 To take a specific example of this type of color discrimination, earlier this year, controversy erupted over the 70 Banks, supra note 24, at 672; Banks, supra note 38, at 1737; Neha Mishra, India and Colorism: The Finer Nuances, 14 Wash. U. Global Stud. L. Rev. 725, 743 (2015); Trina Jones, The Significance of Skin Color in Asian and Asian-American Communities: Initial Reflections, 3 U.C. Irv. L. Rev. 1105, 1117 (2013). 71 Banks, supra note 38, at 1737. The existence of products designed to change skin color does not suggest that skin color is so mutable as to undermine the application of Batson. For example, Batson applies to claims of sex discrimination in jury selection, even though it is possible to change one’s sex through reassignment surgery. 72 Hochschild & Weaver, supra note 6, at 7. 73 Jones, supra note 4, at 1514. 33 casting of a lighter-skinned African-American actor, Zoe Saldana, to play a darker- skinned African American, Nina Simone, with many critics focused on whether Ms. Saldana was cast because “she, unlike Simone, is light skinned and therefore a more palatable choice for the Hollywood film than a darker skinned actress.”74 Further controversy arose when it was announced that Ms. Saldana would “don[] make-up to appear darker for the film.”75 As The Atlantic’s Ta-Nehisi Coates noted, “Why do this if color is irrelevant? It is not any critic nor interlocutor who is asserting that Zoe Saldana isn’t ‘black enough.’ It is the film-makers who made that determination and then—in the most literal and crudest sense—decided to make Saldana blacker.”76 Lighter-skinned Blacks are also more likely to be found on television “as news anchors, as cast members in television shows, as dancers and love interests in music videos and as models in commercials.”77 Indeed, “even today, it is rare to find a dark-skinned woman in a positive leading role or as a love interest.”78 In Latin-American telenovelas, too, “almost all of the actors look white, unless they 74 Tanzina Vega, Stir Builds Over Actress to Portray Nina Simone, N.Y. Times (Sept. 12, 2012), http://www.nytimes.com/2012/09/13/movies/should-zoe-saldana-play-nina-simone-some- say-no.html?_r=1. 75 Ta-Nehisi Coates, The Appropriation of Nina Simone, The Atlantic (Mar. 17, 2016), http://www.theatlantic.com/notes/2016/03/the-appropriation-of-nina-simone/474186/. 76 Id. 77 Norwood, supra note 49, at 594. 78 Id. 34 are the maids and are then light brown.”79 Similarly, “[l]ighter-skinned women . . . predominate among successful Black contestants in beauty pageants and in music videos. They are also more likely than darker Blacks to be selected to endorse mainstream commercial products.”80 * * * In sum, darker-skinned individuals, both within and across races, continue to experience discrimination in all facets of society based solely on the “raw fact of skin color.” See Powers, 499 U.S. at 410. Thus, in carrying out Batson’s promise to protect against invidious discrimination against groups “capable of being singled out for differential treatment,” this Court should require, at a minimum, a non- discriminatory explanation from the prosecutor as to why he struck a dark-skinned individual from jury service. III. The People’s Administrability Concerns Lack Merit The People further argue—remarkably—that Defendant’s Batson challenge should be rejected because claims of color discrimination would be too difficult to be administered by a court. But, the People are wrong. Administrability concerns do not and cannot override the guarantees of equal protection in jury selection that Batson promised. Even if they could, these concerns are meritless for at least 79 Hunter, supra note 6, at 240. 80 Jones, supra note 4, at 1514. 35 three reasons. First, courts are perfectly well suited to analyze color-based discrimination claims, having done so under statutes recognizing such claims since the 1800s. Second, the administrability of color is no more difficult than the administrability of race, which is indisputably a Batson “cognizable group.” And third, to the extent any legitimate concern about administrability actually exists, the impact is minimal; as discussed in Section I above, all a successful prima facie case of color discrimination does is require the prosecutor to provide some non- discriminatory rationale for the peremptory strike. A. Courts Are Well-Equipped to Identify Discrimination on the Basis of Skin Color Courts have reviewed and recognized claims of color discrimination based on statutory regimes from as far back as the 1800s, including, among others, the 1866 Civil Rights Act, the 1964 Civil Rights Act, and the Fair Housing Act.81 As such, there is no reason to believe—and the People offer none—that a court is somehow ill-equipped to do the same under a Batson challenge. Indeed, a trial court’s job in administering a claim of color discrimination in a Batson challenge is far easier than in the cases cited below, since in a Batson challenge, the court can 81 Nance, supra note 6, at 462-63 (noting the increase in color-based discrimination charges received by EEOC as awareness grows that color is an independent ground for discrimination); Nancy Leong, Multiracial Identity and Affirmative Action, 12 UCLA Asian Pac. Am. L.J. 1, 5 (2007) (“the dramatic increase in racial mixing in American society indicates that the issue of multiracial classification will become increasingly prominent over the next several decades”). 36 immediately see for itself whether the prosecutor has preferred lighter-skinned individuals to darker-skinned ones, instead of relying on a plaintiff’s allegations and the witnesses that are available for trial. 1. 1866 Civil Rights Act Section 1981 of the 1866 Civil Rights Act was intended to prohibit “discrimination on account of race, color, or previous condition of servitude.” United States v. Cruikshank, 92 U.S. 542, 555 (1875) (emphasis added). Courts, accordingly, have repeatedly held that Section 1981 encompasses claims of color discrimination. For example: • In Vigil v. City of Denver, the court held that a Mexican-American could assert a Section 1981 claim of color discrimination against his employer, holding that “Mexican-Americans are subject to color-based discrimination, and are within the coverage of § 1981.” No. 77-F-197, 1977 WL 41, at *2 (D. Colo. May 23, 1977). • Likewise, in Jordan v. Whelan Security of Illinois, Inc., the court, holding that the Supreme Court’s decision in Saint Francis College v. Al–Khazraji82 “compels the conclusion that § 1981 encompasses 82 In Al-Khazraji, the Supreme Court held that allegations that a white employer discriminated against an Iraqi-American employee constituted racial discrimination, though Arabs were classified as white, because § 1981 protected against discrimination based on “ancestry or ethnic characteristics.” 481 U.S. 603, 613 (1987). 37 claims of color discrimination,” recognized an African-American’s Section 1981 claim of color discrimination against her employer. 30 F. Supp. 3d 746, 753 (N.D. Ill. 2014) (emphasis added). 2. 1964 Civil Rights Act Title VII of the 1964 Civil Rights Act also forbids employers from discriminating on the basis of an individual’s “race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2 (emphasis added). The legislative history of the section confirms what the text makes clear: Congress intended to eradicate both race and color discrimination.83 The Equal Employment Opportunity Commission’s interpretation of the statute likewise states that “[e]ven though race and color overlap, they are not synonymous. *** Although Title VII does not define ‘color,’ the courts and the Commission read ‘color’ to have its commonly understood meaning – pigmentation, complexion, or skin shade or tone.”84 Here, too, courts have adjudicated numerous claims of color discrimination: 83 Jones, supra note 4, at 1533. Jones notes that, the legislative history of Title VII’s enactment further supported the conclusion that the word “color” did not merely mean race, but the “shade of color” as well. Id. n.194. Similarly, the legislative history of the 1866 Civil Rights Act and the text of later civil rights laws treated race and color as two separate categories as well. See McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 287 (1976) (quoting Senator Trumbull introducing the 1866 bill as “applying to ‘every race and color’”) (citing Cong. Globe, 39th Cong., 1st Sess., 211 (1866)); Francis J. Vaas, Title VII: Legislative History, 7 B.C.L. Rev. 431, 431-32 (1966) (referencing H.R. 3994, H.R. 7142, and the Civil Rights Acts of 1957 and 1960). 84 See U.S. Equal Emp’t Opportunity Comm’n, Facts About Race/Color Discrimination (2008), https://www.eeoc.gov/facts/fs-race.html. 38 • In Walker v. IRS, the court recognized a claim for color discrimination under Title VII between an African-American employee and African- American employer, holding that “‘race’ is to mean ‘race,’ and ‘color’ is to mean ‘color.’” 713 F. Supp. 403, 406 (N.D. Ga. 1989). • In Felix v. Marquez, the court recognized a claim for color discrimination under Title VII filed by a mixed-race Puerto Rican woman, and noted that, “considering the mixture of races and ancestral national origins in Puerto Rico, color may be the most practical claim to present.” No. 78-2314, 1980 WL 242, at *1 (D.D.C. Sept. 11, 1980) (emphasis added). • In Arrocha v. City University of New York, the court held that a Mexican plaintiff’s allegation “that light-skinned Hispanics were favored over dark-skinned Hispanics” in hiring asserted a prima facie claim of color discrimination under Title VII. No. CV021868, 2004 WL 594981, at *6 (E.D.N.Y. Feb. 9, 2004). • And in numerous cases, courts have dismissed claims for color discrimination on the ground that, by solely asserting an administrative claim on the basis of race, and not on the basis of color, the plaintiff failed to exhaust his or her administrative remedies, because race and color comprise two distinct claims under Title VII. See, e.g., Bryant v. 39 Bell Atl. Maryland, Inc., 288 F.3d 124, 133 n.5 (4th Cir. 2002); Gill v. Bank of Am. Corp., 15-cv-319, 2015 WL 4349935, at *4 (M.D. Fla. July 14, 2015); Hunter v. Texas Energy Servs. LP, 14-cv-142, 2014 WL 5426454, at *3 (S.D. Tex. Oct. 23, 2014). Other sections of the 1964 Civil Rights Act also recognize independent claims of color discrimination, and courts are responsible for administering these claims as well. See, e.g., Williams v. Wendler, 530 F.3d 584, 587 (7th Cir. 2008) (“Title VI, like Title VII, forbids discrimination on the basis of ‘color’ as well as on the basis of ‘race.’”); Felix v. Marquez, No. 78-2314, 1981 WL 275, at *11 (D.D.C. Mar. 26, 1981) (“Discrimination on account of color is expressly forbidden by the 1964 Civil Rights Act, not only in Title VII (employment), but also in Titles II (public accommodations), III (public facilities), IV (public education), VI (federally assisted programs), VIII (voting) and IX (community relations services)”) (emphasis added). 3. Section 1982 and the Fair Housing Act In Rodriguez v. Gattuso, the court awarded damages to a Latino couple consisting of a dark-skinned husband and a light-skinned wife on their color discrimination claim under 42 U.S.C. § 1982 and the Fair Housing Act. 795 F. Supp. 860 (N.D. Ill. 1992). There, a prospective landlord separately rejected the husband but permitted the wife to view an apartment. Id. at 865. In ruling for the 40 plaintiffs, the court held, “someone who is of the same race *** but who is treated differently because of his dark skin has been discriminated against because of his color.” Id. (emphasis in original). * * * In light of all the other legal contexts in which courts already analyze color discrimination, the People’s administrability concerns should be rejected on this ground alone. B. Color Is No Less Administrable a Category Than Race Under Batson The People’s administrability concerns should further be rejected given that race—which the People do not dispute is a Batson-protected classification— presents just as many administrability challenges as does skin color. Neither the Fourteenth Amendment, nor Batson, nor any of the statutes referenced above provides an authoritative definition of “race” for guidance. In grappling with the “enduring confusion” of defining and administering racial categories, see Vill. of Freeport v. Barrella, 814 F.3d 594, 603 (2d Cir. 2016), courts over the years have tried out a broad range of proxies for race without settling on a single consensus definition,85 including ethnicity,86 ancestry,87 national origin,88 distinctive 85 Contra People’s Br. at 64. The challenges in administering race can be vividly seen in the classification of South Asians. In United States v. Thind, the Supreme Court, in denying citizenship to a South Asian man, held that the “brown Hindu” was Caucasian but not “White,” even though just a few months earlier, the same Court, in denying citizenship of a Japanese man, 41 “physiognomy,”89 cultural characteristics,90 and common perception.91 Indeed, the People’s argument that race is administrable but color would be too hard to administer ironically echoes the argument raised by Chief Justice Burger’s dissent in Batson itself, which raised the concern that making a record of jurors’ races would prove difficult. See Batson, 476 U.S. at 129-30 & n.10. Despite Chief Justice Burger’s concerns, and the challenges raised above, courts continue to apply the three-step Batson framework to race-based challenges to prosecutors’ peremptory strikes. E.g., Rico v. Leftridge-Byrd, 340 F.3d 178, 183 (3d Cir. 2003) (Applying Batson in a race-based challenge even while asking, “[H]ow does one define the ‘cognizable racial group’ to which Batson itself referred? And how does one define ‘race’ when the understanding of ‘race’ itself had held that “Caucasian” and “White” were synonymous terms. 261 U.S. 204 (1923). Compare Thind, 261 U.S. at 209 with Ozawa v. United States, 260 U.S. 178, 198 (1922). Then, in the 1970s, the U.S. Census again abruptly designated South Asians as “White,” precluding South Asians from receiving the protections of civil rights legislation passed during the 1960s. Susan Koshy, Category Crisis: South Asian Americans and Questions of Race and Ethnicity, 7 Diaspora: J. Transnatl. Stud. 285, 294 (1998); see also Harpalani, supra note 62, at 616-22 (detailing the changing racial classifications applied to South Asians through the late-nineteenth and twentieth centuries). 86 E.g., Vill. of Freeport, 814 F.3d at 607. 87 E.g., Pourghoraishi v. Flying J, Inc., 449 F.3d 751, 757 (7th Cir. 2006). 88 Vill. of Freeport, 814 F.3d at 606. 89 Al-Khazraji, 481 U.S. at 613; see also U.S. Equal Emp’t Opportunity Comm’n, Questions and Answers About Race and Color Discrimination in Employment (2006), https://www.eeoc.gov/policy/docs/qanda_race_color.html (identifying, among other characteristics, “skin color, hair texture or styles, or certain facial features”). 90 Id. 91 Jatoi v. Hurst-Euless-Bedford Hosp. Auth., 807 F.2d 1214, 1218 (5th Cir. 1987). 42 has changed over the centuries?”). There is no reason why color-based challenges cannot be similarly addressed as well. C. Any Administrability Concern Has Minimal Impact Given That the Prosecutor Can Simply Provide a Race-Neutral Explanation for the Strike. In short, the People’s administrability concerns do not, and cannot, trump the constitutional imperative of eradicating invidious color-based discrimination in jury selection. But even assuming arguendo that some unique administrability concern exists with respect to a color-discrimination claim that interferes with an appellate court’s ability to later review the record, any such concern should be minimized by Batson’s three-step inquiry. See supra Section I. Again, all that is needed, upon the making of a prima facie case, is a simple non-discriminatory explanation from the prosecutor. Cf. Rico, 340 F.3d at 183–84 (“Most trial courts, it appears, fairly quickly learned to avoid having to determine the extraordinarily difficult question of when and where to draw the line. Rather, most courts simply assumed without deciding that Batson [applies] and then went on to dispose of the Batson issue, most often by finding that the prosecutor had (or had not) offered a race-neutral explanation for a strike sufficient to rebut a defendant’s prima facie case.”). Given this minimal burden on the People, the solution to any such administrative or record-building difficulty is not to tolerate peremptory strikes 43 based on race, sex, ethnicity, religion, or color. It is to review “a trial court’s ruling on the issue of discriminatory intent” with deference, Snyder v. Louisiana, 552 U.S. 472, 477 (2008), and abide by the principle that the burden of making a record falls to the appellant. Of course, if “meaningful appellate review” proves “impossible” in a particular case (People’s Br. 68), the decision below will be affirmed, or the case remanded for further factual development. But where the claim of discrimination can be understood—because, for example, there is no dispute that certain venirepersons have darker skin than others—nothing more should be required, and appellate review should occur. Cf. Miller-El, 545 U.S. at 247 (“None of our cases announces a rule that no comparison is probative unless the situation of the individuals compared is identical in all respects, and there is no reason to accept one.”). Review is possible here. Below, defense counsel clearly explained that “[t]he district attorney has now preempted all the female black women,” including “[t]he black or dark-colored” potential jurors. A313 (emphasis added). The prosecution’s response was not, “which women?” or “I don’t think these women were all dark-colored”; it was, “can’t do black or skin color, Judge. But I have reasons for everybody.” A313. Before this Court, the People concede that the prosecutor “never gave a reason” for striking the venireperson at issue in this appeal (People’s Br. 2), and do not dispute that “if the prosecutor offers no 44 explanation [at Step 2], the defendant has succeeded in meeting the ultimate burden of establishing an equal protection violation.” Allen, 86 N.Y.2d at 109. This case thus squarely presents the question whether a claim of discrimination based on skin color can ever shift the Batson inquiry from Step 1 (prima facie case) to Step 2. The Court is perfectly well-equipped to answer that legal question. CONCLUSION For the foregoing reasons, and in light of the prosecutor’s failure to provide any reason for the peremptory strike of the juror in question, the Court should hold that the principles of Equal Protection under Batson were violated and order a new trial. Dated: October 6, 2016 New York, New York Respectfully Submitted, ;;;;s ;/ . /l Alice Hsu Joseph L. Sorkin Stan Chiueh Sofie Syed AKIN GUMP STRAUSS HAUER & FELD LLP One Bryant Park New York, NY 10036 Telephone: (212) 872-1000 Fascimile: (212) 872-1002 Attorneys for Amici Curiae Vinay Harpalani Associate Professor of Law Savannah Law School Of Counsel 45