The opinion of the court was delivered by: WEXLER
WEXLER, District Judge: --
In this action plaintiffs, both of whom are black, contend that they have been subjected to racial discrimination in employment by Nassau Community College, a public college, in violation of 42 U.S.C. Section 2000e et seq., 42 U.S.C. Sections 1981-1983, and the Fourteenth Amendment. The defendants are the County of Nassau, Nassau Community College, and the President, Chairman of the Board of Trustees, and Board of Trustees of the College. Plaintiffs seek damages and other relief. This memorandum concerns an appeal by plaintiffs from a ruling of United States Magistrate David F. Jordan, who sustained defendant's peremptory challenge of two black prospective jurors, and overruled plaintiffs' objection that the said challenges constituted illegal racial discrimination. We have affirmed Magistrate Jordan's ruling.
On January 27, 1984, jury selection in this case took place in Uniondale, New York, United States Magistrate David F. Jordan presiding. Magistrate Jordan's procedure for selecting prospective jurors are selected at random. The sixteen are then questioned by the Magistrate. The attorneys are then given an opportunity to make challenges for cause, on which the Magistrate rules. Any prospective juror successfully challenged for cause is replaced by another prospective juror selected at random, who is in turn questioned by the Magistrate and then liable to challenge for cause. When there are no more challenges for cause, the two sides exercise peremptory challenges alternatively, starting with plaintiffs, until eight prospective jurors remain. The six prospective jurors having the lowest numbered seating positions in the jury box become the jurors, and the two prospective jurors having the highest numbered seating positions in the jury box become alternatives.
At the conclusion of all challenges for cause, the jury box contained fourteen whites and two blacks. The two blacks were prospective jurors number 1 and 12.
Peremptory challenges then began. First, plaintiffs challenged a white prospective juror. Next, defendants challenged a black prospective juror, number 1. Plaintiffs moved that defendants be required to demonstrate that this challenge was not based upon racial discrimination. Magistrate Jordan denied this motion. Plaintiff then challenged a white prospective juror. Defendants then challenged the remaining black prospective juror, number 12. Plaintiffs once again moved that defendants be required to demonstrate that the challenge was not based on racial discrimination. Magistrate Jordan ruled that, in light of the fact that defendants had challenged both of the black prospective jurors, defendants should present an explanation. All of the aforementioned discussion concerning alleged racial discrimination took place out of the hearing of the prospective jurors during conferences at the bench.
A hearing was then held in Magistrate Jordan's chambers. Defendants' attorney, Edward O'Brien, raised a number of points. The case had originally been tried in Brooklyn and a hung jury could not return a verdict. At that time virtually all juries in the Eastern District of New York sat in Brooklyn and were drawn from the entire district (comprising Brooklyn, Queens, Staten Island, Nassau and Shufolk). Today, cases such as this, arising in Nassau, are generally tried by a jury sitting in Uniondale and drawn solely from Nassau and Suffolk counties, areas in which blacks constitute a far smaller percentage of the population than in the district as a whole. Mr. O'Brien stated that "[o]ur investigation disclosed from documentation which I received from jurors in the case that of the six jurors that deliberated, two of them were black and the black jurors declined to vote for any reason with the white majority group and held out for several days resulting in the hung jury." Mr. O'Brien further stated:
The black jurors that are sitting on this panel, I had the opportunity to observe, in the array for about fifteen minutes prior to the time the court conducted the voir dire. During that time I observed that both of these jurors sat in close proximity to themselves, communicated not with themselves or with any others, while all of the other jurors in the panel had a mutality of exchange throughout the entire courtroom, verbal exchange. There was laughter heard, there were a number of remarks heard.
The black jurors, both of them, I observed were removed physically, emotionally, from the white jurors in the case and presented, to my view, an inability to really objectively deliberate with other jurors in the case should they be selected as such.
They were reticent, they were distant, they were -- I was troubled by them as I was by several of the white jurors who I have yet to challenge and will challenge as my opportunity allows.
When the two jurors, the black jurors, number one and number twelve, were asked questions by the court, they responded to the court, they did so in a manner that I found was less than open, less than communicative and that had they been black or white I would have challenged them for that reason alone.
I think both of us want to have an objective jury that is not going to be clouded by racial prejudice which sometimes evidences itself with a greater vitriolic approach by some people of certain ethnic backgrounds than of others.
[Juror Number 1] . . . lives in a black community. He evidences to my view as a person who cannot sit on a jury in this kind of case without overemphasizing the ethnic factors.
Magistrate Jordan ruled that defendants' challenges to the two black prospective jurors were valid. Magistrate Jordan took note of the recent decision in McCray v. Abrams, 576 F. Supp. 1244 (E.D.N.Y. 1983), in which Judge Nickerson held that a prosecutor's exercise of peremptory challenges to exclude blacks solely on the basis of race would violate a black defendant's rights under the Equal Protection Clause of the Fourteenth Amendment and his Sixth Amendment right to trial by a fair and impartial jury in criminal cases (made applicable to the states by the Due Process Clause of the Fourteenth Amendment). Magistrate Jordan made the following statement:
After listening to the arguments of both counsel I believe defendants' counsel has stated a valid nondiscriminatory reason for exercising the challenges which he has.
The decision of Judge Nickerson carried to its logical conclusion, in effect, largely destroys ...