Amicus Curiae Brief — Shaare Tefila Congregation v. Cobb

No. 85-2156

IN THE

Supreme Court of the United States

OCTOBER TERM, 1985

SHAARE TEFILA CONGREGATION. et al..

Petitioners,

0.

JOHN WILLIAM Coss, et al.,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Fourth Circuit

MOTION FOR LEAVE :< FILE AND BRIEF OF THE

ANTI-DEFAMATION LEAGUE OF B’NAI B’RITH, THE NAACP

LEGAL DEFENSE AND EDUCATIONAL FUND, INC.,

THE INTERNATIONAL NETWORK OF CHILDREN OF

JEWISH HOLOCAUST SURVIVORS, AND THE AMERICAN

GATHERING AND FEDERATION OF JEWISH HOLOCAUST

SURVIVORS AS AMICI CURIAE SUPPORTING THE PETITION FOR

WRIT OF CERTIORARI

GREGG H. LEvy*

MITCHELL F. DOLIN

NANCY FREDMAN KRENT

COVINGTON & BURLING

1201 Pennsylvania Avenue, N.W

Post Office Box 7566

Washington, D.C. 20044

(202) 662-6000

Of Counsel:

MEYER EISENBERG ]. LEVONNE CHAMBERS

MICHAEL SCHULTZ ERIC SCHNAPPER

EDWARD N. LEAVY NAACP LEGAL DEFENSE AND

STEVEN M. FREEMAN EDUCATIONAL FUND, IN¢

ANTI-DEFAMATION LEAGUE 99 Hudson Street

OF BNAI BRITH New York, New York 10013

823 United Nations Plaza (212) 219-1900

New York, New York 10017 _s . -

(212) 190-2525 MEN ACHEM ROSENS AFI

ond INTERNATION AL NETWORK OF

1640 Rhode Island Avenue, N.W, CHILDREN OF JEWISH

Washington, D.C. 20036 HOLOCAUST SURVIVORS

(9()2) 857-6660 425 Park Avenue

ee New York, New York 10022

*Counsel of Record (212) 407-5000

ee RENE RE ON AI RO RN RHR wR

PACKAR) PRESS / LEGAL DIVISION, 1730 RHODE ISLAND AVE., NW, WASH., D.C. 20036 (202) 783-0420

xy

ee Te ere

IN THE

Supreme Court of the United States

OCTOBER TERM, 1985

No. 85-2156

SHAARE TEFILA CONGREGATION, et al.,

Petitioners,

oD.

JOHN WILLIAM Copp, et al.,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Fourth Circuit

MOTION OF THE ANTI-DEFAMATION LEAGUE OF B'NAI B’RITH,

THE NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC.,

THE INTERNATIONAL NETWORK OF CHILDREN OF JEWISH

HOLOCAUST SURVIVORS, AND THE AMERICAN GATHERING AND

FEDERATION OF JEWISH HOLOCAUST SURVIVORS FOR LEAVE

TO FILE A BRIEF AMICI CURIAE

The Anti-Defamation League of B'nai B'rith, the NAACP

Legal Defense and Educational Fund, Inc., the International

Network of Children of Jewish Holocaust Survivors, and the

American Gathering and Federation of Jewish Holocaust Survi-

vors, pursuant to Rule 36.1, hereby move for leave to file the

attached brief amici curiae supporting the petition for writ of

certiorari. Consent to file the brief has been obtained from all of

the petitioners and from the only two respondents who entered

appearances in the court of appeals; letters expressing such con-

sent have been lodged with the Clerk of this Court. Because the

amici have been unable to obtain consent from the remaining

respondents, most of whom could not be located, this motion is

necessary.

The background and concerns of the amici are fully set forth

in the Interest of Amici Curiae section of the attached brief. In

sum, the Anti-Defamation League and the NAACP Legal De-

fense Fund have sought for several decades to promote mutual

understanding among all Americans and to combat racial and

religious preiudice in the United States. During that period,

each organization has appeared frequently before this Court as

amicus curiae to advance constructions of the Constitution and

federal civil rights laws that would ensure appropriate federal

remedies for victims of racial, religious, and other forms of dis-

crimination. The International Network and the American Gath-

ering are organizations of Jewish survivors of the Nazi holocaust

and their children.

The amici believe that the decision of the court below im-

properly deprives Jews and other minority group members of

the protections afforded by section 1 of the Civil Rights Act of

1866, 42 U.S.C. §§ 1981 & 1982, and further compounds the

confusion among the lower federal courts as to the proper scope

of that statute. The amici organizations and their members bring

to the issues raised in this case perspectives and experiences that

are broader than and different from those of the petitioners. Ac-

cordingly, the amici respectfully seek the Court's leave to file the

attached brief supporting the petition for certiorari.

Respectfully submitted,

GREGG H. LEVY*

MITCHELL F. DOLIN

NANCY FREDMAN KRENT

COVINGTON & BURLING

1201 Pennsylvania Avenue, N.W.

Post Office Box 7566

Washington, D.C. 20044

(202) 662-6000

**

Of Counsel:

MEYER EISENBERG J. LEVONNE CHAMBERS

MICHAEL SCHULTZ ERIC SCHNAPPER

EDWARD N. LEAVY NAACP LEGAL DEFENSE AND

STEVEN M. FREEMAN EDUCATIONAL FUND, INC.

ANTI-DEFAMATION LEAGUE 99 Hudson Street

OF B’NAI B’RITH New York, New York 10013

823 United Nations Plaza (212) 219-1900

New York, New York 10017

(212) 490-2525 MENACHEM ROSENSAFT

ol INTERNATIONAL NETWORK OF

1640 Rhode Island Avenue, N.W. CHILDREN OF JEWISH

Washington, D.C. 20036 HOLOCAUST SURVIVORS

(202) 857-6660 425 Park Avenue

New York, New York 10022

(212) 407-8000

*Counsel of Record

September 5, 1986

ill

QUESTION PRESENTED

_ Whether Jews and other minority group members who do

not belong to distinct “non-white races” but who are the victims

of racially-motivated discrimination are entitled to seek relief un-

der section 1 of the Civil Rights Act of 1866, 42 U.S.C. §§ 1981

& 1982.

iv

TABLE OF CONTENTS

Page

MOTION OF THE ANTI-DEFAMATION LEAGUE OF

B’NAI B’RITH, THE NAACP LEGAL DEFENSE

AND EDUCATIONAL FUND, INC., THE INTER-

NATIONAL NETWORK OF CHILDREN OF JEW-

ISH HOLOCAUST SURVIVORS, AND THE

AMERCIAN GATHERING AND FEDERATION

OF JEWISH HOLOCAUST SURVIVORS FOR

LEAVE TO FILE A BRIEF AMICI CURIAE...... i

IIE 6 pov scecctdcnvacecccsvcess iv

as kcntoncedeccnceqscesucsse Vv

pr Bt er Tere eer ETT Tree vi

INTEREST OF AMICI CURIAE..................... ]

REASONS FOR GRANTING THE WRIT............. 3

I. The Decision Below Conflicts With Numerous Deci-

sions of the Circuit and District Courts Regarding

Whether the Civil Rights Act of 1866 Protects Various

Minority and Ethnic Group’ Victims of

Racially-Motivated Discrimination ................ 4

II. The Decision Below is Inconsistent With This Court's

Holding in McDonald v. Santa Fe Trail ........... Yy

III. The Question Presented was Incorrectly Resolved by

EN ee 11

A. The Legislative History Contradicts the Unduly

Narrow Statutory Interpretation Adopted by the

SING oo sais 5 hd webbie cee dance os ll

B. Federal Remedies for Racially-Discriminatory

Conduct Should not be Limited by Narrow and

Arbitrary Definitions of “Race” ............... 14

FO EE Ra rt Sere eee eT eee 18

TABLE OF AUTHORITIES

CASES: Page

Al-Khazraji v. Saint Francis College, 784 F.2d 505 (3d Cir.

1986), petition for cert. filed, 55 U.S.L.W. 3017 (U.S.

July 2, 1986) (No. 85-2169)............... 4, 6, 7, 8, 18

Bob Jones University v. United States, 461 U.S. 574

EE, Sete, es au e dl ods dt epeenkaes<« 2

Brown v. Board of Education, 347 U.S. 483 (1954)...... 2

City of Greenwood v. Peacock, 384 U.S. 808 (1966) ..... 10

City of Memphis v. Greene, 451 U.S. 100 (1981)........ ll

Erebia v. Chrysler Plastic Products Corp., 772 F.2d 1250

(6th Cir. 1985), cert. denied, 106 S. Ct. 1197 (1986). 8

Frank v. Mangum, 237 U.S. 309 (1915)................ 2

Georgia v. Rachel, 384 U.S. 780 (1966).............. 10, 11

Hirabayashi v. United States, 320 U.S. 81 (1943) ....... 16

In re Mohan Singh, 257 F. 209 (S.D. Cal. 1919)........ 17

Jones v. Alfred H. Mayer Co., 392 U.S. 409

rr reer rere ar ry 2, 10, 11, 14

McDonald v. Santa Fe Trail Transportation Co., 427 U.S.

EN 6 64 bid eke ee S Caled obbesaceeuces 2, 5, 9, 10

Manzanares v. Safeway Stores, Inc., 593 F.2d 968 (10th

SE ME cetAnd ness th hoe bes Sana biuneso< 6, 8, 9, 14

Marlowe v. Fisher Body, 4 Fair Empl. Prac. Cas. (BNA)

1160 (E.D. Mich. 1972), later app. on other grounds,

489 F.2d 1057 (6th Cir. 1973), after remand, 11 Fair

Empl. Prac. Cas. (BNA) 1357 (E.D. Mich. 1975).... 9

Near v. Minnesota, 283 U.S. 697 (1931) ............... 16

Ortiz v. Bank of America, 547 F. Supp. 550 (E.D. Cal.

Ea er as Pet eee ere 5, 8, 9, 15, 16

Runyon v. McCrary, 427 U.S. 160 (1976).............. 5

vi

TABLE OF AUTHORITIES—Continued

CASES—Continued: Page

Shelley v. Kraemer, 334 U.S. 1 (1948)................. 2

Sullivan v. Little Hunting Park, Inc., 396 U.S. 229

Pi GUsi see cetie suc giud su hie wnee ae 66% 064 2, 11

Tillman v. Wheaton-Haven Recreation Association, 410

SE oe Se ee ae eas or ae ed al 5

United States v. Price, 383 U.S. 787 (1966)............. ll

United States v. Bhagat Singh Thind, 261 U.S. 204

I ere ere errs Ste eer ere 13, 16, 17

Wald v. International Brotherhood of Teamsters, 25 Empl.

Prac. Dec. (CCH) 4 31,497 (C.D. Cal. 1980) ....... )

Weiss v. Willow Tree Civic Association, 467 F. Supp. 803

8 ke er ee ee ee ee eee g

STATUTES AND LEGISLATIVE MATERIALS:

Civil Rights Act of 1866

Sins cease wodc cok vases «Oa ss passim

ik od aed aka skwdenbena des passim

Cong. Globe, 39th Cong., Ist Sess. (1866)........ 11, 12, 13

MISCELLANEOUS:

J. Barzun, Race: A Study in Superstition (1965)......... 16

I. Berlin, Against the Current: Essays in the History of

EE aa Tne ogi) ee Ave iy Ay eS 16

2 J. Cook & J. Sobieski, Civil Rights Actions (1985) ..... 5

T. Gossett, Race: The History of An Idea in America

eae ota lee Coun ce owes ead cis cae ek buds 4 15

L. Hand, The Spirit of Liberty (3d ed. 1974) ........... 16

B. Lewis, Semites and Anti-Semites (1986) ............. 15

S. Molnar, Races, Types, and Ethnic Groups (1975)... .. 16

A. Montagu (ed.), The Concept of Race (1964). ....... 14, 16

Vii

TABLE OF AUTHORITIES—Continued

MISCELLANEOUS—Continued: Page

A. Montagu, Man’s Most Dangerous Myth: The Fallacy of

I ED kc aceds Geen ainnwkseehend> be 16

Note, Legal Definition of Race, 3 Race Rel. L. Rep. 571

I ih ti oS a ie Clie Ee ait Willa 6 wee 17

Note. National Origin Discrimination Under Section 1981,

51 Fordham L. Rev. 919 (1983).................4. 5

N. Webster, An American Dictionary of the English Lan-

guage (C. Goodrich rev. Springfield, Mass. 1860) . 13, 16

Webster's Third New International Dictionary (1981).... 16

Vili

IN THE

Supreme Court of the United States

OCTOBER TERM, 1985

No. 85-2156

SHAARE TEFILA CONGREGATION, et al.,

Petitioners,

vo.

JOHN WILLIAM Copp, et al.,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Fourth Circuit

BRIEF OF THE ANTI-DEFAMATION LEAGUE OF B’NAI B’RITH,

THE NAACP LEGAL DEFENSE AND EDUCATIONAL FUND,

INC., THE INTERNATIONAL NETWORK OF CHILDREN OF

JEWISH HOLOCAUST SURVIVORS, AND THE AMERICAN

GATHERING AND FEDERATION OF JEWISH HOLOCAUST

SURVIVORS AS AMICI CURIAE SUPPORTING THE PETITION FOR

WRIT OF CERTIORARI

This brief is submitted on behalf of the Anti-Defamation

League of B’nai B'rith, the NAACP Legal Defense and Educa-

tional Fund, Inc., the International Network of Children of Jew-

ish Holocaust Survivors, and the American Gathering and

Federation of Jewish Holocaust Survivors in support of the pe-

tition for writ of certiorari.

INTEREST OF AMICI CURIAE

B’nai B'rith, which was founded in 1843, is the oldest civic

service organization of Jews in this country. The Anti-Def-

amation League of B’nai B'rith was formed in 1913, partially in

response to the virulent anti-Semitism surrounding the Atlanta

2

trial of Leo Frank, see Frank v. Mangum, 237 U.S. 309, 349-50

(1915) (Holmes & Hughes, J.J., dissenting). Throughout its his-

tory, the Anti-Defamation League has pursued the objective set

forth in its charter: “to secure justice and fair treatment to all

citizens alike and to put an end forever to unjust and unfair dis-

crimination against a..d ridicule of any sect or body of citizens.”

The Anti-Defamation League remains vitally interested in pro-

tecting the civil rights of all persons and in assuring that every

individual receives equal treatment under the law regardless of

his or her race, religion, or ethnic origin. One of the

Anti-Defamation League’s particular goals has been to combat

and to remedy acts of anti-Semitic hatred and violence.

In support of its various objectives, the Anti-Defamation

League has for several decades filed amicus curiae briefs in this

and other courts. These briefs, including several dealing with the

statute at issue in this case, have, as appropriate, urged the un-

constitutionality or illegality of racially-discriminatory laws and

practices and the provision of appropriate federal remedies to

victims of such discrimination. See, e.g., Bob Jones University v.

United States, 461 U.S. 574 (1983); McDonald v. Santa Fe Trail

Transportation Co., 427 U.S. 273 (1976); Sullivan v. Little Hunt-

ing Park, Inc., 396 U.S. 229 (1969); Jones v. Alfred H. Mayer

Co., 392 U.S. 409 (1968); Brown v. Board of Education, 347

U.S. 483 (1954): Shelley v. Kraemer, 334 U.S. 1 (1948).

The Anti-Defamation League’s interest in this case arises

both from its general goals of promoting and securing tolerance

and equal justice and from its history of fighting anti-Semitism.

The decision of the court below, if ieft standing, would deprive

victims of anti-Semitic conduct of an important federal civil

rights remedy and add to the widespread confusion in the lower

courts as to the availability of such a remedy to members of cther

minority or ethnic groups. Accordingly, the Anti-Defamation

League appears as amicus curiae to urge this Court to grant the

writ and reverse the decision of the court below.

3

The NAACP Legal Defense and Educational Fund, Inc. is

a non-profit corporation established to assist black persons to se-

cure their constitutional and civil rights. The Fund believes that

Congress intended section 1 of the Civil Rights Act of 1866, 42

U.S.C. §§ 1981 & 1982, to protect any group which a defendant

regards as different from and inferior to “white citizens.” The

bigotry and hatred that characterize anti-Semitism are indistin-

guishable in this regard from prejudice against blacks. The stat-

ute was enacted not to put the federal courts in the business of

deciding which groups are and are not “white,” but to condemn

the very idea that there are legally cognizable differences be-

tween “whites” and other ‘dividuals. If, as the court of appeals

below believed, an act v. uiscrimination can be defended by

proof that the victim was “really white,” the fedeval courts will

inevitably be required to determine the “race” of individuals of

mixed parentage. Such government classifications may have

been made by the Slave Codes and the Nuremberg Laws, but

they are anathema under the first, fifth, and fourteenth amend-

ments to the United States Constitution.

The International Network of Children of Jewish Holocaust

Survivors, through affiliat~d groups in the United States, Can-

ada, Israel, and Europe, represents five thousand sons and

daughters of European Jews who survived the Nazi holocaust.

Founded in 1981, the International Network is committed to

fight against anti-Semitism and all other manifestations of racial,

ethnic, and religious hatred and prejudice, and to prevent the

recurrence of the holocaust in any form. The American Gather-

ing and Federation of Jewish Holocaust Survivors, formally es-

tablished in 1985, is an umbrella organization representing the

interests of tens of thousands of survivors of the holocaust living

in the United States. Among its principal purposes are the re-

membrance of the holocaust and the preservation of the culture

of European Jewry.

REASONS FOR GRANTING THE WRIT

This case presents a square conflict among the circuits on a

significant issue of federal statutory interpretation. The Fourth

4

Circuit panel below, over a vigorous dissent by Judge Wilkinson,

held that section 1 of the Civil Rights Act of 1866, 42 U.S.C.

§$ 1981 & 1982, only addresses acts of color-based discrimina-

tion and can never be invoked by Jewish plaintiffs because they

are not members of a distinct “non-white race.” Pet. App. A, at

7a. During the same week, the Third Circuit expressly rejected

such a narrow construction of the statute and held that Caucasian

victims of racially-motivated discrimination who are members of

definable minority or ethnic groups are proper plaintiffs under

the statute. Al-Khazraji v. Saint Francis College,784 F.2d 505,

516-17 (3d Cir. 1986), petition for cert. filed, 55 U.S.L.W. 3017

(U.S. July 2, 1986) (No. 85-2169). Starkly reflecting the extensive

conflict among these and other circuit and district courts, the two

recent decisions generated five separate opinions, each advanc-

ing a different legal theory. That fact alone confirms the need for

Supreme Court guidance in this area.

The issue of statutory construction affected by this conflict

is of considerable importance. Although relatively few incidents

of discrimination of the type raised in this case may be affected

by the circuits’ differing views on the scope of the statute, each

such incident has a devastating impact on its victims, their civil

rights, and their communities. Even in the absence of a conflict

among the circuits, that impact, which puts in jeopardy the fun-

damental values that Congress sought to protect in the statute,

would be sufficiently important to warrant this Court's review for

the purpose of correcting the decision below, which is inconsis-

tent with prior decisions of this Court and with the statute's leg-

islative history. Given the disarray among the lower federal

courts on this subject, the grounds for granting review are com-

pelling.

I. The Decision Below Conflicts With Numerous Decisions of

Circuit and District Courts Regarding Whether the Civil

Rights Act of 1866 Protects Various Minority and Ethnic

Group Victims of Racially-Motivated Discrimination.

The decision below is one of dozens in recent years that

have grappled with the question of whether various minority and

5

ethnic group members are protected by section 1 of the Civil

Rights Act of 1866, 42 U.S.C. §§ 1981 & 1982.! The relevant

statutory language addressed in these decisions extends to “all

persons’ various enumerated rights on the same terms as those

rights are “enjoyed by white citizens.”? Ten years ago, this Court

held unambiguously that one need not be “non-white” to invoke

the statute. McDonald v. Santa Fe Trail Transportation Co., 427

U.S. 273, 287 (1976). Prompted however by McDonald's dictum

that the statute deals with discrimination that is racial in char-

acter, id., the lower federal courts, in the intervening years,

have devised numerous and conflicting tests by which the

statute's coverage is withheld from or extended to various groups

that may not technically qualify as distinct “non-white races.” As

a consequence of this disarray, the ability of minority and ethnic

group members to obtain relief under the statute often depends

principally on the jurisdiction in which they file suit.

The conflict among the circuits is plain and has been ac-

knowledged by courts and commentators alike.? The existence

‘Petitioners’ complaint sought relief under sections 1981 and 1982. Pre-

sumably because their section 1981 claim was dismissed on aiternative

grounds, including the one at issue here, petitioners have sought review only

of the lower courts’ disposition of their section 1982 claim. Recognizing the

congruence of the statutory language, legislative history, and decided cases for

purposes of resolving the question presented, this brief does not distinguish

between the two sections. Sections 1981 and 1982 both originated in section |

of the Civil Rights Act of 1866. Where, as here, the relevant language is the

same in both statutes, there is “no reason to construe these sections

differently.” Tillman v. Wheaton-Haven Recreation Ass'n, 410 U.S. 431, 440

(1973); accord, Runyon v. McCrary, 427 U.S. 160, 171 (1976).

*The “enjoyed by whit zens’ language is common to sections 1981 and

1982. The phrase “all persons appears in section 1981; section 1982 speaks of

“all citizens.”

See Ortiz v. Bank of America, 547 F. Supp. 550, 559-64 (E.D. Cal. 1982)

(referring to “profound disarray,” citing dozens of cases, and describing three

different and widely-used judicial approaches); Note, National Origin Discrim-

ination Under Section 1981, 51 Fordham L. Rev. 919, 923-28 (1983) (pointing

to “inconsistent approaches” among the lower federal courts and concluding

that three different tests are being used); see also 2 J. Cook & J. Sobieski, Civil

Rights Actions 4 5.09 (1985) (reviewing the contending lines of authority).

; 6

and scope of that conflict are amply illustrated by the majority

and dissenting opinions of the Fourth Circuit panei below, Pet.

App. A, the majority and concurring opinions of the Third Cir-

cuit in Al-Khazraji v. Saint Francis College, 784 F.2d 505 (3d

Cir. 1986), petition for cert. filed, 55 U.S.L.W. 3017 (U.S. July

2, 1986) (No. 85-2169), and the Tenth Circuit's decision in

Manzanares v. Safeway Stores, Inc., 593 F.2d 968 (10th Cir.

1979). As further explained below, these opinions confirm that if

petitioners’ lawsuit had been filed in either the Third or. the

Tenth Circuit, the result urged by the dissenting member of the

Fourth Circuit panel would have obtained.

The panel below confronted a claim by petitioners that the

desecration of their synagogue was racially motivated and thus

actionable under sections 1981 and 1982. Petitioners’ allegations

of respondents’ racial motivations were supported by

uncontradicted admissions that respondents viewed Jews as ra-

cially distinct and inferior to white persons.* Nonetheless, a di-

vided Fourth Circuit affirmed the district court's dismissal of the

lawsuit and held that “discrimination against Jews is not racial

discrimination” because Jews are not members of a “racially dis-

tinct group” that is “commonly considered to be non-white] ].”

Pet. App. A, at 6a-7a. In short, the panel held that Jews are not

entitled to invoke sections 1981 and 1982 because they are not

members of a distinct “non-white race” and hence cannot be the

victims of “racial discrimination” by other whites.

Judge Wilkinson in dissent rejected the majority's view that

a plaintiff must establish membership in a “non-white race.” In-

stead, he concluded that the statute was designed to remedy the

‘Because this case was decided on respondents’ motion to dismiss, such

allegations must be treated as true. Moreover, these factual allegations were

substantiated by deposition testimony, affidavits, and other evidence placed in

the district court record by petitioners. For purposes of the appeal in the

Fourth Circuit, respondents conceded the accuracy of petitioners’ “factual ar-

gument that the [respondents] perceived Jews as racially inferior.” Brief for

Appellees at 5, Shaare Tefila Congregation v. Cobb (4th Cir. 1986). Petitioners

did not contend in their complaint that Jews constitute a separate race, instead,

they focused on the racial motivations of respondents.

-

effects of conduct motivated by “racially discriminatory animus.”

Pet. App A, at 13a; see id. at 12a, 14a. He would have held that

petitioners were entitled to invoke the statute because they

could demonstrate that the synagogue desecration was racially

motivated. Id. at 14a-16a. Judge Wilkinson also would have al-

lowed petitioners to proceed because there is a common per-

ception among many that Jews constitute a separate race. Id. at

16a-17a, 20a. Judge Wilkinson relied heavily on Supreme Court

precedent and the legislative history of the statute in concluding

that the racial or racist character and motivation of the conduct,

instead of the “non-white race” of the plaintiff, should be con-

trolling. Id. at 13a-14a. In determining that racial motivation

rather than racial identity should govern, he also noted the ab-

sence of a definitive, non-arbitrary concept of race by which to

identify “appropriate” plaintiffs. Id. at 18a-19a.

At least two circuits, the Third and the Tcath, as weil as

many district courts, agree with Judge Wilkinson that a minority

or ethnic group member need not establish his membership in

a “non-white race’ to invoke the statute. For example, the Third

Circuit's recent opinion in Al-Khazraji v. Saint Francis College,

supra, is squarely in conflict with the panel opinion below. In

Saint Francis College, the plaintiff was an Arab who concededly

belonged to the Caucasian race. 784 F.2d at 507, 514. The court

nonetheless held that, even though he was “white,” he was en-

titled under the Civil Rights Act to prove that he had been sub-

jected to “racially-based prejudice.” Id. at 517. Recognizing that

race is an a. orphous concept and that prejudice is often based

on mistaken concepts of race, id., the panel concluded, after

examining the legislative history, that “race” was not used by

members of the 39th Congress in a “crabbed fashion” and did not

refer to narrow scientific categories of race. Id. at 516; see also id.

at 520 (Adams, J., concurring). In sum, the Third Circuit de-

parted from the Fourth Circuit's analysis both in holding that

8

Congress did not intend to limit the statute's protection to mem-

bers of distinct “non-white races” and in emphasizing racial mc

tivation rather than “scientific” racial identity. Under eith

approach, petitioners’ claims undoubtedly would have survi_—-

a motion to dismiss in the Third Circuit.

Even more favorable to petitioners’ position is the deci on

of the Tenth Circuit in Manzanares v. Safeway Stores, supra.

There, Judge Seth ruled that the statute requires only that the

plaintiff belong to an identifiable group subject to prejudice by

the majority and that he allege discrimination because of his

membership in that group. 593 F.2d at 970. The court criticized

reliance on the plaintiff's racial identity, observed that the

statutue does not even mention “race,” and concluded that the

statute could not be limited to racial discrimination in a technical

or narrow sense. Id. at 970-71. The court held — without ruling

that they are a racial group, that they are non-white in color, or

that they are subject to racially-motivated prejudice — that “per-

sons with Spanish surnames” form an identifiable group entitled

to invoke section 1981. Id. at 970-72. Petitioners here obviously

would have satisfied this test because of their membership in an

identifiable minority group subject to discrimination.

As the discussion above indicates, the panel below em-

ployed a restrictive analysis at odds with at least two other cir-

cuits.> While the Manzanares and Saint Francis College cases do

not specifically deal with Jewish plaintiffs,® the factual and legal

°A recent Sixth Circuit decision cited Manzanares with approval and al-

lowed a section 1981 claim to proceed where it was shown that the defendant,

who had used racist epithets, was racially motivated. Erebia v. Chrysler Plastic

Prod. Corp., 772 F.2d 1250, 1253-54 (6th Cir. 1985), cert. denied, 106 S. Ct.

1197 (1986). Although it does not precisely apply Judge Seth's rationale, the

Sixth Circuit does not require proof of membership in a “non-white race.” After

an exhaustive review of the case law and a closely-reasoned analysis of the issue.

the district court in Ortiz v. Bank of America, 547 F. Supp. 550, 564 (E.D. Cal.

1982), expressly determined to follow the Manzanares approach. Numerous

other decisions rejecting the position taken by the panel below are cited in

Ortiz

“Other than the lower court decisions in this case, there are few reported

cases that directly confront the afplicability of sections 1981 and 1982 to Jewish

9

analyses of those opinions clearly demonstrate that petitioners’:

claims would not have been dismissed in a jurisdiction applying

those precedents. Such a conflict among the federal courts

should not be permitted to persist, particularly where the at-

tendant uncertainty inhibits the vindication of important federal

civil rights. The writ should be granted to resolve this conflict.

Il. The Decision Below is Inconsistent With This Court’s Hold-

ing in McDonald v. Santa Fe Trail.

The court below affirmed the dismissal of petitioners’ claims

because Jews are not 1 «embers of a “racially distinct group” that

is “commonly considered to be non-white|].” Pet. App. A, at 7a.

This Court has held, however, that one need not be “non-white”

to state a claim under the statute. McDonald v. Santa Fe Trail

Transportation Co., 427 U.S. 273, 287 (1976). Accordingly, the

decision below cannot be squared with this Court’s holding in

McDonald.

plaintiffs; none deals with the issue in a context where, as here, the racial

animus of the defendant is conceded. In Marlowe v. Fisher Body, 4 Fair Empl.

Prac. Cas. (BNA) 1160 (E.D. Mich. 1972), later app. on other grounds, 489

F.2d 1057 (6th Cir. 1973), the district court held that the Jewish plaintiff could

invoke section 1981. The court noted that prejudice against Jews is not purely

religious in character, but is racial as well. 4 Fair Empl. Prac. Cas. (BNA) at

1161. After trial, however, which proceeded on the agreed-upon theory that

any discrimination was solely religious, the district court dismissed the section

1981 claim. 11 Fair Empl. Prac. Cas. (BNA) 1357, at 136] (E.D. Mich. 1975).

One district court decision in California, explicitly rejecting Manzanares, dis-

missed a Jewish plaintiff's section 1981 claim on the ground that Jews are not

a race. Wald v. International Brotherhood of Teamsters, 25 Empl. Prac. Dec.

(CCH) © 31,497, at 18,993 (C.D. Cal. 1980). A more recent California district

court decision embraced Manzanares and observed that discrimination against

Jews is motivated by “racial prejudice” and that Jewish victims of discrimina-

tion should be allowed to invoke the statute. Ortiz v. Bank of America, 547 F.

Supp. 550, 567 & n.25(E.D. Cal. 1982). A final case barring Hasidic Jews from

invoking the statute is distinguishable because the overwhelming majority of

the defendants were themselves Jewish and the apparent motivation for the

alleged discrimination was based on Hasidic dress and lifestyle. Weiss v. Wil-

low Tree Civic Assn, 467 F. Supp. 803, 816 & n.48 (S.D.N.Y. 1979).

10

In McDonald, the Court emphasized that “the statute ex-

plicitly applies to ‘all persons’ (emphasis added), including white

persons.” Id. (emphasis and parenthetical in original). The

statute's qualifying phrase, “as is enjoyed by v. site citizens,” is

designed not to limit the statute's applicability to non-whites,

but rather “to emphasize the racial character of the rights being

protected.” Georgia v. Rachel, 384 U.S. 780, 791 (1966), quoted

in McDonald, supra at 287. Rachel and its companion case, City

of Greenwood vy. Peacock, 384 U.S. 808 (1966), decided under

the removal provisions of the 1866 Civil Rights Act, involved

state criminal prosecutions of groups of black and white civil

rights workers. It was the nature of the criminal offense, not the

race of the criminal defendant, that the Court considered rele-

vant in determining the availability of the federal remedy.

The same construction — one stressing the character of the

rights being protected, rather than the “race” of the plaintiff —

was also advanced in Jones v. Alfred H . Mayer Co., 392 U.S. 409

(1968), where the Court pointed out that “all racially motivated

deprivations of the rights enumerated in the statute” are pro-

tected. Id. at 426 (emphasis in original). Indeed, once one ac-

cepts McDonald's holding that whites and non-whites alike can

invoke the statute, racial status should become largely irrelevant

and racial motivation and character should become the central

issues. In the present case, the complaint alleged that the attack

on the synagogue was racially motivated — that it occurred be-

cause of respondents’ racial views. Thus, under controlling Su-

preme Court precedent, a claim for relief had been stated.

The panel below disregarded the holdings of this Court and

refused to consider the racial character of the conduct and rights

involved. Instead, looking solely to the race of the plaintiffs, it

held that, since Jews are not “non-whites,” no cause of action

could be stated. That holding is directly contrary to the decisions

of this Court in McDonald and the cases upon which the

McDonald Court relied. It also conflicts with this Court's in-

junction that she statute be generously applied and that ~ ‘ingen-

ious analytical instruments’ . . . [not be employed] to carve . . .

11

exception({s]” from the statute.’ For these reasons, certiorari .

should be granted and the decision below corrected.

Ill. The Question Presented was Incorrectly Resolved by the

Court Below.

Although this Court held twenty years ago in Georgia v.

Rachel, 384 U.S. 780, 791 (1966), that section 1 of the Civil

Rights Act of 1866 protects certain rights against infringement on

account of thier “racial character,” it has not yet had occasion

precisely to define that term. The color-based definition chosen

by the Fourth Circuit, “non-white,” is plainly wrong. It contra-

dicts both the legislative history of the Act and commonly ac-

cepted notions abc ut race and racial discrimination.

A. The Legislative History Contradicts the Unduly Narrow

Statutory Interpretation Adopted by the Court of Ap-

peals.

In determining the “racial character” of the rights Congress

intended to protect under sections 1981] and 1982, one must look

first to the Act’s legislative history. That history makes clear that

the concept of “race” as understood and used by the 39th Con-

gress was meant to encompass a far broader range of groups than

just the “non-whites” protected by the court below.

In introducing the Civil Rights Act of 1866, Senator

Trumbull described it as a bill designed “to protect all persons in

the United States in their civil rights” and emphasized that it

applied to “every race and color.” Cong. Giobe, 39th Cong., Ist

Sess. 211] (1866). Representative Wilson, Chairman of the House

Judiciary Committee and the bill's floor manager in the House,

stressed that the measure would “protect our citizens, from the

highest to the lowest, from the whitest to the blackest, in the

"Jones v. Alfred H. Mayer Co., 392 U.S. 409, 437 (1968) (quoting United

States v. Price, 383 U.S. 787, 801 (1966)); see also City of Memphis v. Greene,

451 U.S. 100, 120 (1981) (statute's language to be “broadly construed’),

Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 237 (1969) (“narrow con-

struction of the language . . . would be quite inconsistent with the broad and

sweeping nature of the protection meant to be afforded”),

12

enjoyment of the great fundamental rights which belong to all

men.” Id. at 1118.

While there can be no doubt that the Act was intended pri-

marily to protect the rights of blacks, it is likewise clear that

Congress did not intend to limit “race” by a color-based defini-

tion. In overriding President Johnson's veto of the Act, Congress

reaffirmed that:

“This bill, in that broad and comprehensive philanthropy

which regards all men in their civil rights as equal before the

law, is not made for any class or creed, or race or color, but

in the great future that awaits us will, if it become a law,

protect every citizen, including the millions of people of for-

eign birth who will flock to our shores to become ciiizens

and to find here a land of liberty and law.”

Id.,at 1833 (emphasis supplied). As this passage demonstrates,

sections 1981 and 1982 were never intended by Congress to ap-

ply solely to non-whites, but rather, as the statute provides, to

“all per ons’ and “all citizens.”

The term “race,” as used in the debates, was meant to be

given a broad meaning so that it would encompass every “class

or creed, or race or color.” Id. This broad meaning is evident in

Representative Shallabarger’s statement that:

“Who will say that Ohio can pass a law enacting that no man

of the German race, and whom the United States has made

a citizen of the United States, shall ever own any property

in Ohio . . . . If Ohio may pass such a law, and exclude a

German citizen. . . because he is of the German nationality

or race, then .. . you have the spectacle of an American

citizen admitted to all its high privileges and entitled to the

protection of his Government. . . and yet that citizen is not

entitled to either contract, inherit, own property, work, or

live upon a single spot of the Republic, nor to breathe its

air.

13

Id. at 1294; see also id. at 1757 (noting President Johnson's ob-

jection that the bill would make citizens of “Chinese and

Gypsies ).

In addition, the more generalized comments in the legisla-

tive history about members of different “races” must be read in

light of the common understanding of that term at the time.* A

leading contemporary dictionary defined “race” as follows: “A

race is the series of descendants indefinitely. Thus all mankind

are called the race of Adam; the Israelites are of the race of

Abraham and Jacob.” N. Webster, An American Dictionary of

the English Language 903 (C. Goodrich rev. Springfield, Mass.

1860) (emphasis in original). In addressing the meaning of racial

terminology in another context, this Court has noted:

“It is in the popular sense of the word, therefore, that we

employ it as an aid to the construction of the statute, for it

would be obviously illogical to convert words of common

speech used in a statute into words of scientific terminology

when neither the latter nor the science for whose purposes

they were coined was within the contemplation of the fram-

ers of the statute or of the people for whom it was framed.

The words of the statute are to be interpreted in accordance

with the understanding of the common man from whose vo-

cabulary they were taken.”

United States v. Bhagat Singh Thind, 261 U.S. 204, 209 (1923).

Against this background, the legislative history confirms that the

Fourth Circuit's “scientific” limitation of the Act to “non-white

races’ is ill-founded and should be reviewed and reversed by this

Court.

So San . . P

Conceptual and definitional problems associated with race are discussed

more fully in Part II1.B, infra.

14

B. Federal Remedies for Racially-Discriminatory Conduct

Should not be Limited by Narrow and Arbitrary Defini-

tions of “Race.”

Respondents’ desecration of petitioners’ synagogue was ra-

cially motivated; it was prompted by respondents’ belief that

Jews are members of a distinct and inferior non-white race. See

p. 6, n. 4, supra. Despite the uncontradicted evidence of the

racist nature of the desecration, the panel below dismissed

petitioners claims because Jews in fact do not belong to a distinct

non-white race. Pet. App. A, at 7a. The panel was correct in

rejecting the notion that Jews are members of a scientifically

distinct “race.” However, the panel was plainly wrong in con-

cluding that its enlightened notions of racial identity should be

applied to restrict the availability of sections 1981 and 1982. Such

a narrow interpretation of the statute's coverage ignores both the

true character of racism and the inappropriateness of restrictive

judicial definitions of race.°

Judge Seth has aptly observed that racists are “poor anthro-

pologists” and that racial “|p]rejudice . . . . is based on all the

mistaken concepts of ‘race. ” Manzanares v. Safeway Stores,

Inc., 593 F.2d 968, 971 (10th Cir. 1979); see also Pet. App. A, at

lla (Wilkinson, J., dissenting); S. Washburn, The Study of Race,

in The Concept of Race 243, 254 (A. Montagu ed. 1964). This

connection between misbegotten notions of race and racial prej-

udice is acommonplace. But such misbegotten notions must not

be ignored if the statute is to apply to “all racially motivated

deprivations of . . . rights,” Jones v. Alfred H. Mayer Co., 392

U.S. 409, 426 (1965) (emphasis in original).

The panel below refused to permit petitioners to invoke the

statute on the theory that respondents’ “subjective, irrational

perceptions that Jews are a race should not be controlling. Pet.

App. A, at 7a. This holding not only clashes with this Court's

extension of the statute to “all racially motivated” conduct, it also

"The amici reject the notion that Jews should be classified as members of

a distinct “race,” but, as is made clear throughout this brief. believe that the

statute must be construed to cover acts of racism directed towards Jews.

15

ignores the fact that anti-Semitism has long been the product of

racial misperceptions. The racist motivations of respondents are

similar to the motivations that have animated anti-Semitic con-

duct for centuries.

A recent study of the character of anti-Semitism observed

that:

“In medieval times hostility to the Jew, whatever its un-

derlying social or psychological motivations, was defined

primarily in religious terms. From the fifteenth century on-

ward this was no longer true, and Jew hatred was redefined,

becoming at first partly, and then, at least in theory, wholly

racial.”

B. Lewis, Semites and Anti-Semites 81 (1986). The racist content

of anti-Semitism, from at least the time of the Spanish Inquisition

through Nazi Germany to present-day America, is a matier of

historical record. See id. at 26-33, 81-100; T. Gossett, Race: The

History of an Idea in America 9-12, 292-93, 371-72, 449 (1963):

see also Pet. App. A, at 16a-17a (Wilkinson, J., dissenting); Ortiz

v. Bank of America, 547 F. Supp. 550, 567 (E.D. Cal. 1982). Six

million Jews did not die in the holocaust as a result of differences

in religious doctrine; they were the victims of an avowedly racist

Nazi ideology that measured Jewishness by blood rather than

belief. The panel below was mistaken in concluding that appli-

cation of the statute to Jews would require it to indulge the iso-

lated racist idiosyncracies of the individual respondents. The

history of anti-Semitism amply, if not tragically, demonstrates its

pervasive racist character.

Having refused to consider the racist motivations of respon-

dents, the panel determined that since Jews are not a separate

“non-white race’ or not commonly thought of as one they are not

entitled to invoke the statute. The test applied was explicitly

based on skin color. In adopting such a racial test, the panel

ignored the fact that “race” is not necessarily such a narrow con-

cept and that for purposes of this statute a restrictive judicial

“race test” is inappropriate.

16

There is no definitional consensus in the scientific or aca-

demic community about “race.” See generally A. Montagu (ed. ),

The Concept of Race (1964) (collecting various scholarly essays

on topic); see also United States v. Bhagat Singh Thind, 261 U.S.

204, 212 (1923); J. Barzun, Race: A Study in Superstition 203-07

(1965). Indeed, to the extent that there is agreement, it is on the

proposition that the purpose of any racial classification dictates

its scope and content. See Ortiz v. Bank of America, 547 F.

Supp. 550, 565-67 (E.D. Cal. 1982); S. Molnar, Races, Types,

and Ethnic Groups 13 (1975). In the lay community, “race” re-

mains an extraordinarily open-ended concept; it is defined as

broadly in today’s leading dictionaries as it was over 100 years

ago, when the Civil Rights Act was passed. !°

Despite the fact that Jews should not be classified as a sci-

entifically distinct “race,” it is nonetheless also true that Jews are

considered by many to constitute a “race.” The mistaken belief

that Jews belong to a separate “race” is not only held by anti-

Semites; many with benign attitudes towards Jews often refer to

them as a “race.”!! Indeed , a standard dictionary in America still

illustrates its definitions of “race” with unfortunate references to

the “Hebrew race” and the “Jewish race.” Webster's Third New

International Dictionary 1870 (1981).

"Compare Webster's Third New International Dictionary 1870 (1981)

(“descendants of a common ancestor” or “a class or kind of individuals with

common characteristics, interests, appearance, or habits”) with N. Webster,

An American Dictionary of the English Language 903 (C. Goodrich rev.

Springfield, Mass. 1860) (“the series of descendants indefinitely’).

''A. Montagu, Man’s Most Dangerous Myth: The Fallacy of Race 353 (5th

ed. 1974); see, e.g., Hirabayashi v. United States, 320 U.S. 81, 111 (1943)

(Murphy, J., concurring) (wartime treatment of Japanese Americans “bears a

melancholy resemblance to the treatment accorded to members of the Jewish

race in Germany and in other parts of Europe.”); Near v. Minnesota, 283 U.S.

697, 703 (1931) (Hughes, C.J.) (“Jewish Race”); 1. Berlin, Against the Current:

Essays in the History of Ideas 274-75 (1980) (describing Disraeli’s theory of the

“Jewish race”); Letter from Learned Hand to Charles H. Grandgent (Nov. 14,

1922), reprinted in L. Hand, The Spirit of Liberty 21 (3d ed. 1974) (urging that

Harvard College not impose a “limitation based upon race” to restrict admis-

sion of Jews).

17

The panel below erred in dismissing out of hand the notion

that Jews — because of the widespread, though mistaken, belief

that they belong to a “race — should be entitled to invoke the

statute. It held in essence that victims of racial discrimination

may invoke the statute only if the defendant's views on their

racial identity coincide with those of society's most enlightened

members. This holding ignores the contemporary and lay mean-

ings of the term “race” and the express purpose of the statute.

And such an abstract and restrictive reading of the statute would

leave countless victims of discrimination plainly racist in char-

acter without any effective remedy. !2

By refusing to consider the racial motivations of respondents

or to accept the broader understanding of “race prevalent at the

time of the Act or in modern lay usage, the panel below left itself

the task of devising a modern “scientific” definition of “race” and

assumec the role of arbiter of racial classifications. In light of the

absence of a scientific or academic consensus on either the pro-

priety or the application of racial definitions, such a judicial role

is inappropriate and will inevitably lead to arbitrary and restric-

tive classifications. It will likely result in unseemly inquiries into

the racial background of litigants and the formulation of artificial

and technical racial distinctions.'* The breadth of the statute,

however, renders such a definitional role unnecessary because of

its sweeping prohibition of all racially-motivated discrimination.

This Court therefore should reject the color-based test of the

panel below and make it clear that a plaintiff need not “prove his

"The racial animus displayed by respondents’ conduct brings it within the

terms of the statute in question and distinguishes it from situations involving

religious discrimination in employment, housing, and public accommodations,

which are in any event covered by other federal civil rights legislation specit-

ically proscribing discrimination based on religion.

See Note, Legal Definition of Race, 3 Race Rel. L. Rep. 571 (1958) (re-

viewing statutory definitions of racial groups and judicial interpretations

thereof); compare United States v. Bhagat Singh Thind, 261 U.S. 204, 209-15

(1923) (high caste Hindu not a “free white person” for naturalization purposes)

with in re Mohan Singh, 257 F. 209 (S.D. Cal. 1919) (reaching opposite result

apparently undermined by the Thind case).

18

[racial] pedigree,” Al-Khazraji v. Saint Francis College, supra,

784 F.2d at 517, before he is permitted to invoke a statute which

by its terms protects “all persons.”

CONCLUSION

For the foregoing reasons, the amici respectfully urge the

Court to grant the writ.

Respectfully submitted,

GREGG H. LEVY*

MITCHELL F. DOLIN

NANCY FREDMAN KRENT

COVINGTON & BURLING

1201 Pennsylvania Avenue, N.W.

Post Office Box 7566

Washington, D.C. 20044

(202) 662-6000

Of Counsel:

MEYER EISENBERG J]. LEVONNE CHAMBERS

MICHAEL SCHULTZ ERIC SCHNAPPER

EDWARD N. LEAVY NAACP LEGAL DEFENSE AND

STEVEN M. FREEMAN EDUCATIONAL FUND, INC.

ANTI-DEFAMATION LEAGUE 99 Hudson Street

OF B’'NAI BRITH New York, New York 10013

823 United Nations Plaza (212) 219-1900

New York, New York 10017

(212) 490-2525 MENACHEM ROSENSAFT

and INTERNATIONAL NETWORK

1640 Rhode Island Avenue, N.W. OF CHILDREN OF JEWISH

Washington, D.C. 20036 HOLOCAUST SURVIVORS

(202) 857-6660 425 Park Avenue ;

New York, New York 10022

(212) 407-8000

*Counsel of Record

September 1986