The word “diversity” continues to haunt us. Not only is it affecting our discourse when it comes to education and the workplace, but now the Colorado Supreme Court has announced it will decide whether a criminal defendant’s conviction can be upheld, given the fact that the trial court declined to strike a potential juror who said he wasn’t in favor of “diversity.”
The ambiguous concept of “diversity” is so embedded into our culture it has now taken hold in courts to the point where questioning the orthodoxy of racial “diversity” can have the effect of making one ineligible for jury service. Of course, many individuals may be happy not to have to serve on a jury. Yet that doesn’t answer the fundamental question: is simple opposition to “diversity” grounds for dismissing a juror?
Consider the case before the Colorado Supreme Court. In 2017, Reginald Keith Clark was arrested after kidnapping and sexually assaulting a woman to whom he offered a ride in Denver. After a trial and guilty verdict, Clark was sentenced to 30 years in prison.
Clark has appealed his conviction. He says that the trial was tainted because one of the potential jurors in his juror pool was a white man who, during the selection of jury members prior to the case being tried, expressed opposition to diversity. The man added that he disagreed with the notion that diversity “makes us all stronger,” based on his personal observations in life.
When Clark’s lawyer asked the judge to toss out the juror, the judge refused.
This put Clark’s lawyer in a spot. During jury selection, the opposing attorneys are allowed to disqualify a potential juror for their own reasons, no explanation needed. But there’s a limit to the number of potential jurors they can dismiss this way.
Clark’s lawyer decided it was worth spending one of his peremptory challenges on having the man removed. This is the heart of Clark’s appeal. He claims that because the judge refused to have the court itself toss out the potential juror, the judge forced his lawyer to spend a valuable disqualification card, undermining his lawyer’s attempt to select a fair jury for his trial.
It’s one thing to have bona fide racial bias toward a defendant. No one disputes that such bias is cause to be removed — by the court — from the jury pool. But consider the fact that promoting “diversity” is itself often code for engaging in active race discrimination. Whether in schools, the workplace, or government benefits, institutions have used the term “diversity” as an all-purpose excuse to engage in treating people differently based on their skin color.
Indeed, Harvard College and the University of North Carolina are presently before the U.S. Supreme Court, attempting to justify their discrimination against Asian American college applicants based on the need for racial “diversity” in their student body. As Justice Clarence Thomas noted at oral argument in the cases, the word diversity itself lacks content, and can theoretically “mean everything for everyone.”
Setting aside the negative connotations associated with the word “diversity,” we should also consider the implications for free speech and free thought. We need jurors for nearly all criminal trials, and the point of a jury is to have a cross-section of the local public pass judgment on the criminal defendant. But if Colorado plans to impose an ideological test on jurors in all criminal trials — that all beliefs about diversity must be positive ones, or else it is evidence of racial bias — that will undermine the very purpose of the jury.
Will any juror who questions the value of imposing diversity be excluded from service on a jury? Will criminal defendants truly have a jury that represents the local community, given that a significant portion — perhaps a majority — of citizens oppose institutional efforts to discriminate based on race, in the name of “diversity?”
One of the great things about the United States is that our Constitution protects us from being forced to speak and think specific things. That of course includes welcoming supporters of racial diversity into the marketplace of ideas, but it also includes acknowledging opposition to diversity.
The Colorado Supreme Court will now decide whether opposition to diversity is enough, without more, to exhibit racial animus, and thus prevent someone from sitting on a jury. Put simply, the Colorado Supreme Court should reject the effort.
William E. Trachman, of Denver, is general counsel of Mountain States Legal Foundation, a non-profit dedicated to preserving and expanding constitutional rights. He is a former deputy assistant secretary for civil rights in the U.S. Department of Education.
