Edmonson v. Leesville Concrete Co. , 111 S. Ct. 2077 ( 1991 )

Justice Kennedy

delivered the opinion of the Court.

We must decide in the case before us whether a private litigant in a civil case may use peremptory challenges to exclude jurors on account of their race. Recognizing the impropriety of racial bias in the courtroom, we hold the race-based exclusion violates the equal protection rights of the challenged jurors. This civil case originated in a United States District Court, and we apply the equal protection component of the Fifth Amendment’s Due Process Clause. See Bolling v. Sharpe, 347 U. S. 497 (1954).

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Thaddeus Donald Edmonson, a construction worker, was injured in a jobsite accident at Fort Polk, Louisiana, a federal enclave. Edmonson sued Leesville Concrete Company for negligence in the United States District Court for the Western District of Louisiana, claiming that a Leesville employee permitted one of the company’s trucks to roll backward and pin him against some construction equipment. Edmonson invoked his Seventh Amendment right to a trial by jury.

During voir dire, Leesville used two of its three peremptory challenges authorized by statute to remove black persons from the prospective jury. Citing our decision in Batson v. Kentucky, 476 U. S. 79 (1986), Edmonson, who is himself black, requested that the District Court require Leesville to articulate a race-neutral explanation for striking the two jurors. The District Court denied the request on the ground that Batson does not apply in civil proceedings. As empaneled, the jury included 11 white persons and 1 black person. The jury rendered a verdict for Edmonson, assessing his total damages at $90,000. It also attributed 80% of the fault to Edmonson’s contributory negligence, however, and awarded him the sum of $18,000.

Edmonson appealed, and a divided panel of the Court of Appeals for the Fifth Circuit reversed, holding that our opinion in Batson applies to a private attorney representing a private litigant and that peremptory challenges may not be used in a civil trial for the purpose of excluding jurors on the basis of race. 860 F. 2d 1308 (1989). The Court of Appeals panel held that private parties become state actors when they exercise peremptory challenges and that to limit Batson to criminal cases “would betray Batson’s fundamental principle [that] the state’s use, toleration, and approval of peremptory challenges based on race violates the equal protection clause.” Id., at 1314. The panel remanded to the trial court to consider whether Edmonson had established a prima facie case of racial discrimination under Batson.

The full court then ordered rehearing en banc. A divided en banc panel affirmed the judgment of the District Court, holding that a private litigant in a civil case can exercise peremptory challenges without accountability for alleged racial classifications. 895 F. 2d 218 (1990). The court concluded that the use of peremptories by private litigants does not constitute state action and, as a result, does not implicate constitutional guarantees. The dissent reiterated the arguments of the vacated panel opinion. The Courts of Appeals have divided on the issue. See Dunham v. Frank’s Nursery & Crafts, Inc., 919 F. 2d 1281 (CA7 1990) (private litigant may not use peremptory challenges to exclude venirepersons on account of race); Fludd v. Dykes, 863 F. 2d 822 (CA11 1989) (same). Cf. Dias v. Sky Chefs, Inc., 919 F. 2d 1370 (CA9 1990) (corporation may not raise a Batson-type objection in a civil trial); United States v. De Gross, 913 F. 2d 1417 (CA9 1990) (government may raise a Batson-type objection in a criminal case), rehearing en banc granted, 930 F. 2d 695 (1991); Reynolds v. Little Rock, 893 F. 2d 1004 (CA8 1990) (when government is involved in civil litigation, it may not use its peremptory challenges in a racially discriminatory manner). We granted certiorari, 498 U. S. 809 (1990), and now reverse the Court of Appeals.

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In Powers v. Ohio, 499 U. S. 400 (1991), we held that a criminal defendant, regardless of his or her race, may object to a prosecutor’s race-based exclusion of persons from the petit jury. Our conclusion rested on a two-part analysis. First, following our opinions in Batson and in Carter v. Jury Commission of Greene County, 396 U. S. 320 (1970), we made clear that a prosecutor’s race-based peremptory challenge violates the equal protection rights of those excluded from jury service. 499 U. S., at 407-409. Second, we relied on well-established rules of third-party standing to hold that a defendant may raise the excluded jurors’ equal protection rights. Id., at 410-415.

Powers relied upon over a century of jurisprudence dedicated to the elimination of race prejudice within the jury selection process. See, e. g., Batson, supra, at 84; Swain v. Alabama, 380 U. S. 202, 203-204 (1965); Carter, supra, at 329-330; Neal v. Delaware, 103 U. S. 370, 386 (1881); Strauder v. West Virginia, 100 U. S. 303 (1880). While these decisions were for the most part directed at discrimination by a prosecutor or other government officials in the context of criminal proceedings, we have not intimated that race discrimination is permissible in civil proceedings. See Thiel v. Southern Pacific Co., 328 U. S. 217, 220-221 (1946). Indeed, discrimination on the basis of race in selecting a jury in a civil proceeding harms the excluded juror no less than discrimination in a criminal trial. See id., at 220. In either case, race is the sole reason for denying the excluded venire-person the honor and privilege of participating in our system of justice.

That an act violates the Constitution when committed by a government official, however, does not answer the question whether the same act offends constitutional guarantees if committed by a private litigant or his attorney. The Constitution’s protections of individual liberty and equal protection apply in general only to action by the government. National Collegiate Athletic Assn. v. Tarkanian, 488 U. S. 179, 191 (1988). Racial discrimination, though invidious in all contexts, violates the Constitution only when it may be attributed to state action. Moose Lodge No. 107 v. Irvis, 407 U. S. 163, 172 (1972). Thus, the legality of the exclusion at issue here turns on the extent to which a litigant in a civil case may be subject to the Constitution’s restrictions.

The Constitution structures the National Government, confines its actions, and, in regard to certain individual liberties and other specified matters, confines the actions of the States. With a few exceptions, such as the provisions of the Thirteenth Amendment, constitutional guarantees of individual liberty and equal protection do not apply to the actions of private entities. Tarkanian, supra, at 191; Flagg Bros., Inc. v. Brooks, 436 U. S. 149, 156 (1978). This fundamental limitation on the scope of constitutional guarantees “preserves an area of individual freedom by limiting the reach of federal law” and “avoids imposing on the State, its agencies or officials, responsibility for conduct for which they cannot fairly be blamed.” Lugar v. Edmondson Oil Co., 457 U. S. 922, 936-937 (1982). One great object of the Constitution is to permit citizens to structure their private relations as they choose subject only to the constraints of statutory or deci-sional law.

To implement these principles, courts must consider from time to time where the governmental sphere ends and the private sphere begins. Although the conduct of private parties lies beyond the Constitution’s scope in most instances, governmental authority may dominate an activity to such an extent that its participants must be deemed to act with the authority of the government and, as a result, be subject to constitutional constraints. This is the jurisprudence of state action, which explores the “essential dichotomy” between the private sphere and the public sphere, with all its attendant constitutional obligations. Moose Lodge, supra, at 172.

We begin our discussion within the framework for state-action analysis set forth in Lugar, supra, at 937. There we considered the state-action question in the context of a due process challenge to a State’s procedure allowing private parties to obtain prejudgment attachments. We asked first whether the claimed constitutional deprivation resulted from the exercise of a right or privilege having its source in state authority, 457 U. S., at 939-941; and second, whether the private party charged with the deprivation could be described in all fairness as a state actor, id., at 941-942.

There can be no question that the first part of the Lugar inquiry is satisfied here. By their very nature, peremptory challenges have no significance outside a court of law. Their sole purpose is to permit litigants to assist the government in the selection of an impartial trier of fact. While we have recognized the value of peremptory challenges in this regard, particularly in the criminal context, see Batson, 476 U. S., at 98-99, there is no constitutional obligation to allow them. Ross v. Oklahoma, 487 U. S. 81, 88 (1988); Stilson v. United States, 250 U. S. 583, 586 (1919). Peremptory challenges are permitted only when the government, by statute or deci-sional law, deems it appropriate to allow parties to exclude a given number of persons who otherwise would satisfy the requirements for service on the petit jury.

Legislative authorizations, as well as limitations, for the use of peremptory challenges date as far back as the founding of the Republic; and the common-law origins of peremptories predate that. See Holland v. Illinois, 493 U. S. 474, 481 (1990); Swain, 380 U. S., at 212-217. Today in most jurisdictions, statutes or rules make a limited number of peremptory challenges available to parties in both civil and criminal proceedings. In the case before us, the challenges were exercised under a federal statute that provides, inter alia:

“In civil cases, each party shall be entitled to three peremptory challenges. Several defendants or several plaintiffs may be considered as a single party for the purposes of making challenges, or the court may allow additional peremptory challenges and permit them to be exercised separately or jointly.” 28 U. S. C. §1870.

Without this authorization, granted by an Act of Congress itself, Leesville would not have been able to engage in the alleged discriminatory acts.

Given that the statutory authorization for the challenges exercised in this case is clear, the remainder of our state-action analysis centers around the second part of the Lugar test, whether a private litigant in all fairness must be deemed a government actor in the use of peremptory challenges. Although we have recognized that this aspect of the analysis is often a factbound inquiry, see Lagar, supra, at 939, our cases disclose certain principles of general application. Our precedents establish that, in determining whether a particular action or course of conduct is governmental in character, it is relevant to examine the following: the extent to which the actor relies on governmental assistance and benefits, see Tulsa Professional Collection Services, Inc. v. Pope, 485 U. S. 478 (1988); Burton v. Wilmington Parking Authority, 365 U. S. 715 (1961); whether the actor is performing a traditional governmental function, see Terry v. Adams, 345 U. S. 461 (1953); Marsh v. Alabama, 326 U. S. 501 (1946); cf. San Francisco Arts & Athletics, Inc. v. United States Olympic Comm., 483 U. S. 522, 544-545 (1987); and whether the injury caused is aggravated in a unique way by the incidents of governmental authority, see Shelley v. Kraemer, 334 U. S. 1 (1948). Based on our application of these three principles to the circumstances here, we hold that the exercise of peremptory challenges by the defendant in the District Court was pursuant to a course of state action.

Although private use of state-sanctioned private remedies or procedures does not rise, by itself, to the level of state action, Tulsa Professional, 485 U. S., at 485, our cases have found state action when private parties make extensive use of state procedures with “the overt, significant assistance of state officials.” Id., at 486; see Lugar v. Edmondson Oil Co., 457 U. S. 922 (1982); Sniadach v. Family Finance Corp. of Bay View, 395 U. S. 337 (1969). It cannot be disputed that, without the overt, significant participation of the government, the peremptory challenge system, as well as the jury trial system of which it is a part, simply could not exist. As discussed above, peremptory challenges have no utility outside the jury system, a system which the government alone administers. In the federal system, Congress has established the qualifications for jury service, see 28 U. S. C. § 1865, and has outlined the procedures by which jurors are selected. To this end, each district court in the federal system must adopt a plan for locating and summoning to the court eligible prospective jurors. 28 U. S. C. § 1863; see, e. g., Jury Plan for the United States District Court for the Western District of Louisiana (on file with Administrative Office of United States Courts). This plan, as with all other trial court procedures, must implement statutory policies of random juror selection from a fair cross section of the community, 28 U. S. C. § 1861, and nonexclusion on account of race, color, religion, sex, national origin, or economic status, 18 U. S. C. §243; 28 U. S. C. §1862. Statutes prescribe many of the details of the jury plan, 28 U. S. C. § 1863, defining the jury wheel, § 1863(b)(4), voter lists, §§ 1863(b)(2), 1869(c), and jury Commissions, § 1863(b)(1). A statute also authorizes the establishment of procedures for assignment to grand and petit juries, § 1863(b)(8), and for lawful excuse from jury service, §§ 1863(b)(5), (6).

At the outset of the selection process, prospective jurors must complete jury qualification forms as prescribed by the Administrative Office of the United States Courts. See 28 U. S. C. § 1864. Failure to do so may result in fines and imprisonment, as might a willful misrepresentation of a material fact in answering a question on the form. Ibid. In a typical case, counsel receive these forms and rely on them when exercising their peremptory strikes. See G. Bermant, Jury Selection Procedures in United States District Courts 7-8 (Federal Judicial Center 1982). The clerk of the United States district court, a federal official, summons potential jurors from their employment or other pursuits. They are required to travel to a United States courthouse, where they must report to juror lounges, assembly rooms, and courtrooms at the direction of the court and its officers. Whether or not they are selected for a jury panel, summoned jurors receive a per diem fixed by statute for their service. 28 U. S. C. § 1871.

The trial judge exercises substantial control over voir dire in the federal system. See Fed. Rule Civ. Proc. 47. The judge determines the range of information that may be discovered about a prospective juror, and so affects the exercise of both challenges for cause and peremptory challenges. In some cases, judges may even conduct the entire voir dire by themselves, a common practice in the District Court where the instant case was tried. See Louisiana Rules of Court, Local Rule 13.02 (WD La. 1990). The judge oversees the exclusion of jurors for cause, in this way determining which jurors remain eligible for the exercise of peremptory strikes. In cases involving multiple parties, the trial judge decides how peremptory challenges shall be allocated among them. 28 U. S. C. § 1870. When a lawyer exercises a peremptory challenge, the judge advises the juror he or she has been excused.

As we have outlined here, a private party could not exercise its peremptory challenges absent the overt, significant assistance of the court. The government summons jurors, constrains their freedom of movement, and subjects them to public scrutiny and examination. The party who exercises a challenge invokes the formal authority of the court, which must discharge the prospective juror, thus effecting the “final and practical denial” of the excluded individual’s opportunity to serve on the petit jury. Virginia v. Rives, 100 U. S. 313, 322 (1880). Without the direct and indispensable participation of the judge, who beyond all question is a state actor, the peremptory challenge system would serve no purpose. By enforcing a discriminatory peremptory challenge, the court “has not only made itself a party to the [biased act], but has elected to place its power, property and prestige behind the [alleged] discrimination.” Burton v. Wilmington Parking Authority, 365 U. S., at 725. In so doing, the government has “create[d] the legal framework governing the [challenged] conduct,” National Collegiate Athletic Assn., 488 U. S., at 192, and in a significant way has involved itself with invidious discrimination.

In determining Leesville’s state-actor status, we next consider whether the action in question involves the performance of a traditional function of the government. A traditional function of government is evident here. The peremptory challenge is used in selecting an entity that is a quintessential governmental body, having no attributes of a private actor. The jury exercises the power of the court and of the government that confers the court’s jurisdiction. As we noted in Powers, the jury system performs the critical governmental functions of guarding the rights of litigants and “ensuring] continued acceptance of the laws by all of the people.” 499 U. S., at 407. In the federal system, the Constitution itself commits the trial of facts in a civil cause to the jury. Should either party to a cause invoke its Seventh Amendment right, the jury becomes the principal factfinder, charged with weighing the evidence, judging the credibility of witnesses, and reaching a verdict. The jury’s factual determinations as a general rule are final. Basham v. Pennsylvania R. Co., 372 U. S. 699 (1963). In some civil cases, as we noted earlier this Term, the jury can weigh the gravity of a wrong and determine the degree of the government’s interest in punishing and deterring willful misconduct. See Pacific Mut. Life Ins. Co. v. Haslip, 499 U. S. 1 (1991). A judgment based upon a civil verdict may be preclusive of issues in a later case, even where some of the parties differ. See Allen v. McCurry, 449 U. S. 90 (1980). And in all jurisdictions a true verdict will be incorporated in a judgment enforceable by the court. These are traditional functions of government, not of a select, private group beyond the reach of the Constitution.

If a government confers on a private body the power to choose the government’s employees or officials, the private body will be bound by the constitutional mandate of race neutrality. Cf. Tarkanian, 488 U. S., at 192-193; Rendell-Baker v. Kohn, 457 U. S. 830 (1982). At least a plurality of the Court recognized this principle in Terry v. Adams, 345 U. S. 461 (1953). There we found state action in a scheme in which a private organization known as the Jaybird Democratic Association conducted whites-only elections to select candidates to run in the Democratic primary elections in Ford Bend County, Texas. The Jaybird candidate was certain to win the Democratic primary and the Democratic candidate was certain to win the general election. Justice Clark’s concurring opinion drew from Smith v. Allwright, 321 U. S. 649, 664 (1944), the principle that “any ‘part of the machinery for choosing officials’ becomes subject to the Constitution’s constraints.” Terry, supra, at 481. The concurring opinion concluded:

“[W]hen a state structures its electoral apparatus in a form which devolves upon a political organization the uncontested choice of public officials, that organization itself, in whatever disguise, takes on those attributes of government which draw the Constitution’s safeguards into play.” 345 U. S., at 484.

The principle that the selection of state officials, other than through election by all qualified voters, may constitute state action applies with even greater force in the context of jury selection through the use of peremptory challenges. Though the motive of a peremptory challenge may be to protect a private interest, the objective of jury selection proceedings is to determine representation on a governmental body. Were it not for peremptory challenges, there would be no question that the entire process of determining who will serve on the jury constitutes state action. The fact that the government delegates some portion of this power to private litigants does not change the governmental character of the power exercised. The delegation of authority that in Terry occurred without the aid of legislation occurs here through explicit statutory authorization.

We find respondent’s reliance on Polk County v. Dodson, 454 U. S. 312 (1981), unavailing. In that case, we held that a public defender is not a state actor in his general representation of a criminal defendant, even though he may be in his performance of other official duties. See id., at 325; Branti v. Finkel, 445 U. S. 507, 519 (1980). While recognizing the employment relation between the public defender and the government, we noted that the relation is otherwise adversarial in nature. 454 U. S., at 323, n. 13. “[A] defense lawyer is not, and by the nature of his function cannot be, the servant of an administrative superior. Held to the same standards of competence and integrity as a private lawyer, ... a public defender works under canons of professional responsibility that mandate his exercise of independent judgment on behalf of the client.” Id., at 321.

In the ordinary context of civil litigation in which the government is not a party, an adversarial relation does not exist between the government and a private litigant. In the jury selection process, the government and private litigants work for the same end. Just as a government employee was deemed a private actor because of his purpose and functions in Dodson, so here a private entity becomes a government actor for the limited purpose of using peremptories during jury selection. The selection of jurors represents a unique governmental function delegated to private litigants by the government and attributable to the government for purposes of invoking constitutional protections against discrimination by reason of race.

Our decision in West v. Atkins, 487 U. S. 42 (1988), provides a further illustration. We held there that a private physician who contracted with a state prison to attend to the inmates’ medical needs was a state actor. He was not on a regular state payroll, but we held his “functions] within the state system, not the precise terms of his employment, [determined] whether his actions can fairly be attributed to the State.” Id., at 55-56. We noted:

“Under state law, the only medical care West could receive for his injury was that provided by the State. If Doctor Atkins misused his power by demonstrating deliberate indifference to West’s serious medical needs, the resultant deprivation was caused, in the sense relevant for state-action inquiry, by the State’s exercise of its right to punish West by incarceration and to deny him a venue independent of the State to obtain needed medical care.” Id., at 55.

In the case before us, the parties do not act pursuant to any contractual relation with the government. Here, as in most civil cases, the initial decision whether to sue at all, the selection of counsel, and any number of ensuing tactical choices in the course of discovery and trial may be without the requisite governmental character to be deemed state action. That cannot be said of the exercise of peremptory challenges, however; when private litigants participate in the selection of jurors, they serve an important function within the government and act with its substantial assistance. If peremptory challenges based on race were permitted, persons could be required by summons to be put at risk of open and public discrimination as a condition of their participation in the justice system. The injury to excluded jurors would be the direct result of governmental delegation and participation.

Finally, we note that the injury caused by the discrimination is made more severe because the government permits it to occur within the courthouse itself. Few places are a more real expression of the constitutional authority of the government than a courtroom, where the law itself unfolds. Within the courtroom, the government invokes its laws to determine the rights of those who stand before it. In full view of the public, litigants press their cases, witnesses give testimony, juries render verdicts, and judges act with the utmost care to ensure that justice is done.

Race discrimination within the courtroom raises serious questions as to the fairness of the proceedings conducted there. Racial bias mars the integrity of the judicial system and prevents the idea of democratic government from becoming a reality. Rose v. Mitchell, 443 U. S. 545, 556 (1979); Smith v. Texas, 311 U. S. 128, 130 (1940). In the many times we have addressed the problem of racial bias in our system of justice, we have not “questioned the premise that racial discrimination in the qualification or selection of jurors offends the dignity of persons and the integrity of the courts.” Powers, 499 U. S., at 402. To permit racial exclusion in this official forum compounds the racial insult inherent in judging a citizen by the color of his or her skin.

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Having held that in a civil trial exclusion on account of race violates a prospective juror’s equal protection rights, we consider whether an opposing litigant may raise the excluded person’s rights on his or her behalf. As we noted in Powers: “In the ordinary course, a litigant must assert his or her own legal rights and interests, and cannot rest a claim to relief on the legal rights or interests of third parties.” Id., at 410. We also noted, however, that this fundamental restriction on judicial authority admits of “certain, limited exceptions,” ibid., and that a litigant may raise a claim on behalf of a third party if the litigant can demonstrate that he or she has suffered a concrete, redressable injury, that he or she has a close relation with the third party, and that there exists some hindrance to the third party’s ability to protect his or her own interests. All three of these requirements for third-party standing were held satisfied in the criminal context, and they are satisfied in the civil context as well.

Our conclusion in Powers that persons excluded from jury service will be unable to protect their own rights applies with equal force in a civil trial. While individual jurors subjected to peremptory racial exclusion have the right to bring suit on their own behalf, “[t]he barriers to a suit by an excluded juror are daunting.” Id., at 414. We have no reason to believe these barriers would be any less imposing simply because a person was excluded from jury service in a civil proceeding. Likewise, we find the relation between the excluded venireperson and the litigant challenging the exclusion to be just as close in the civil context as in a criminal trial. Whether in a civil or criminal proceeding, “[vjoir dire permits a party to establish a relation, if not a bond of trust, with the jurors,” a relation that “continues throughout the entire trial.” Id., at 413. Exclusion of a juror on the basis of race severs that relation in an invidious way.

We believe the only issue that warrants further consideration in this case is whether a civil litigant can demonstrate a sufficient interest in challenging the exclusion of jurors on account of race. In Powers, we held:

“The discriminatory use of peremptory challenges by the prosecution causes a criminal defendant cognizable injury, and the defendant has a concrete interest in challenging the practice. See Allen v. Hardy, 478 U. S. [255,] 259 [(1986)] (recognizing a defendant’s interest in ‘neutral jury selection procedures’). This is not because the individual jurors dismissed by the prosecution may have been predisposed to favor the defendant; if that were true, the jurors might have been excused for cause. Rather, it is because racial discrimination in the selection of jurors ‘casts doubt on the integrity of the judicial process,’ Rose v. Mitchell, [supra, at 556], and places the fairness of a criminal proceeding in doubt.” Id., at 411.

The harms we recognized in Powers are not limited to the criminal sphere. A civil proceeding often implicates significant rights and interests. Civil juries, no less than their criminal counterparts, must follow the law and act as impartial factfinders. And, as we have observed, their verdicts, no less than those of their criminal counterparts, become binding judgments of the court. Racial discrimination has no place in the courtroom, whether the proceeding is civil or criminal. See Thiel v. Southern Pacific Co., 328 U. S., at 220. Congress has so mandated by prohibiting various discriminatory acts in the context of both civil and criminal trials. See 18 U. S. C. §243; 28 U. S. C. §§1861, 1862. The Constitution demands nothing less. We conclude that courts must entertain a challenge to a private litigant’s racially discriminatory use of peremptory challenges in a civil trial.

It may be true that the role of litigants in determining the jury’s composition provides one reason for wide acceptance of the jury system and of its verdicts. But if race stereotypes are the price for acceptance of a jury panel as fair, the price is too high to meet the standard of the Constitution. Other means exist for litigants to satisfy themselves of a jury’s impartiality without using skin color as a test. If our society is to continue to progress as a multiracial democracy, it must recognize that the automatic invocation of race stereotypes retards that progress and causes continued hurt and injury. By the dispassionate análysis which is its special distinction, the law dispels fears and preconceptions respecting racial attitudes. The quiet rationality of the courtroom makes it an appropriate place to confront race-based fears or hostility by means other than the use of offensive stereotypes. Whether the race generality employed by litigants to challenge a potential juror derives from open hostility or from some hidden and unarticulated fear, neither motive entitles the litigant to cause injury to the excused juror. And if a litigant believes that the prospective juror harbors the same biases or instincts, the issue can be explored in a rational way that consists with respect for the dignity of persons, without the use of classifications based on ancestry or skin color.

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It remains to consider whether a prima facie case of racial discrimination has been established in the case before us, requiring Leesville to offer race-neutral explanations for its peremptory challenges. In Batson, we held that determining whether a prima facie case has been established requires consideration of all relevant circumstances, including whether there has been a pattern of strikes against members of a particular race. 476 U. S., at 96-97. The same approach applies in the civil context, and we leave it to the trial courts in the first instance to develop evidentiary rules for implementing our decision.

The judgment is reversed, and the case is remanded for further proceedings consistent with our opinion.

It is so ordered.