Amicus Curiae Brief — Saint Francis College v. Al-Khazraji

Supreme Court, U.S.

No. 85-216

JOSEPH F. SPANIOL, JR.

In THe ongene

Supreme Court of the United States

Ocroser Term, 1986

SAINT FRANCIS COLLEGE, et al,

Petitioners,

v.

MAJID GHAIDAN AL-KHAZRAJI,

a/k/a MAJID AL-KHAZRAJI ALLAN,

Respondent.

On Writ Of Certiorari To The United States

Court Of Appeals “or The Third Circuit

BRIEF OF MEXICAN AMERICAN LEGAL DEFENSE

AND EDUCATIONAL FUND AND PUERTO RICAN

LEGAL DEFENSE & EDUCATION FUND AS

AMICI CURIAE IN SUPPORT OF RESPONDENT

ANTONIA HERNANDEZ BARRY SULLIVAN

E. RICHARD LARSON Counsel of Record

THERESA BUSTILLOS WILLIAM D. SNAPP

MEXICAN AMERICAN LEGAL C. STEVEN TOMASHEFSKY

DEFENSE AND MARK DUPONT

EDUCATIONAL FUND JENNER & BLOCK

634 South Spring Street One IBM Plaza

Los Angeles, Calif 90014 Chicago, Illinois 60611

(213) 629-2512 (312) 222-9350

LINDA FLORES

KENNETH KIMERLING

PUERTO RICAN LEGAL

DEFENSE & EDUCATION

FUND, INC.

99 Hudson Street

New York, New York 10013

(212) 219-3360

Attorneys for Amici Curia

Midwest Law-Printing Co., Chicago 60611, (312) 32

TABLE OF CONTENTS

PAGE

TABLE OF AUTHORITIES ................. lil

INTEREST OF AMiCI CURIAE ............ ]

SUMMARY OF ARGUMENT ................ 2

ARGUMENT:

I.

THE LEGISLATIVE HISTORY OF SECTION

1981 DEMONSTRATES THAT CONGRESS IN-

TENDED TO PROHIBIT DISCRIMINATION

BASED ON ETHNIC AND ANCESTRAL

SP. EE AeGasecaiensckuunueedecs< 4

A. The Thirty-Ninth Congress Understood

The Term “Race” To Include Ethnic And

Amoestral Groups .....ccccccccccccces 4

1. “Race” As Including Ancestral Group-

ee ee eee ae 10

2. “Latins” As A Distinct “Race” ... 12

3. ““White Race’ As ‘Anglo-Saxon

ME avikciek sad eacadbsanedareiecs 13

4. Act Applicable To All Such Groups .. 14

B. In Just The Same Manner As The Thirty

Ninth Congress, This Court Regularly

Used The Term “Race” To Include Eth-

nicity During The Nineteenth And Early

Twentieth Centuries ................. 17

il

II.

A CONSTRUCTION OF SECTION 1981 WHICH

INCLUDES NATIONAL ORIGIN OR ETHNIC

GROUP DISCRIMINATION IS MANDATED BY

CONGRESS’S PURPOSE IN REENACTING

ee 20

A. The 1866 Act, As Recast In The 1870

Act, Was Intended To Embody A Four-

teenth Amendment Equal Protection

re 21

B. This Court’s Equal Protection Cases

Show That There Is No Legally Signifi-

cant Distinction Between Discrimination

Based On Race And Discrimination Based

On National Origin Or Ethnicity ..... 23

Ee 26

iil

TABLE OF AUTHORITIES

Cases PAGE

Castaneda v. Partida, 430 U.S. 482 (1977) . 25

The Civil Rights Cases, 109 U.S. 3 (1883) ..... 8

Espinoza v. Farah Manufacturing Co., 414 U.S.

ET eee ee ed aeeeenneeen 23

Frontiero v. Richardson, 411 U.S. 677 (1973) .. 23, 24

Fullilove v. Klutznick, 448 U.S. 448 (1980) .... 24

General Building Contractors Association v. Penn-

sylvania, 458 U.S. 375 (1982) ...... 8,9, 15, 21, 22

Georgia v. Rachel, 384 U.S. 780 (1966) ........ 8

Graham v. Richardson, 403 U.S. 365 (1971) ... 4,24

Hernandez v. Texas, 347 U.S. 475 (1954) ...... 25

Hirabayashi v. United States, 320 U.S. 81 (1943) . 24

Hodges v. United States, 203 U.S. 1 (1906) .... 18

Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968) . ®

Lockhart v. McCree, 106 S. Ct. 1758 (1986) .. 23

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

i EE cccckcecebeucs beuspudeceeee 25

Massachusetts Board of Retirement v. Murgia, 427

ie incase Shen ea ee> 24

McDonald v. Santa Fe Trail Transportation Co.,

es I er 6, 8, 15

Merrill Lynch, Pierce, Fenner & Smith, Inc. v.

Curran, 456 U.S. 353 (1982) ............... 20

IV

Morrison v. California, 291 U.S. 82 (1934) .... 18

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

[SUE anisbibnsnsdensdcen ebeecaninecs 19

Panama Railroad Company v. Rock, 266 U.S. 209

DOE 64460 hb esKdcctClctuekendenudncic ies 18

Park ’N Fly, Inc. v. Dollar Park and Fly, Inc.,

GED UR. TED GOOD occ ccscccccccccscceces 5

Perrin v. United States, 444 U.S. 37 (1979) ... 6

Runyon v. McCrary, 427 U.S. 160 (1976) ..... 8

Shaare Tefila Congregation v. Cobb, No. 85-2156

Ses SY ds dha Weeevuusucesnsccedecbnoeds 7

The Slaughter-House Cases, 83 U.S. (16 Wall.) 36

SE S6606assndindccundecdnuneeeetoes 17

Strauder v. West Virginia, 100 U.S. 303 (1880) .. 4, 24

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

EE 6040 hasuidawn veedeiencen.cadacne: 8

Towne v. Eisner, 245 U.S. 418 (1918) ......... 5

United States v. Louisiana, 225 F. Supp. 353 (E.D.

La. 1963) (three-judge court), affd, 380 U.S. 145

EE he bak 05% datideavenedaneuee eit eka xs 16

United States v. Thind, 261 U.S. 204 (1923) ... 6

White v. United States, 68 U.S. (1 Wall.) 660 (1864) . 17

Yick Wo v. Hopkins, 118 U.S. 356 (1886) ..... 21

Statutes

Sy ee. UD ©6500 cb sadbbueeccsdaceieceds passim

Me Ws WUE evs Sevicn danced icccededecbcd. 7, 8, 22

Act of July 14, 1870, 16 Stat. 254 ............ 12

V

Enforcement Act of 1870, 16 Stat. 140 ...... passim

Civil Rights Act of 1866, 14 Stat. 27 ........ passim

Act of March 26, 1790, 1 Stat. 108 ........... 12

Other Material

Bickel, The Original Understanding and the Seg-

regation Decision, 69 Harv. L. Rev. 1 (1955) .. 10, 12

The Concept of Race (A. Montagu ed. 1964) ... 19

Congressional Globe, 41st Cong., 2d Sess. (1870) .

TTT TCT TTT TTT CTT TTT ET TTT TTS passim

Congressional Globe, 39th Cong., Ist Sess. (1866)

pPEWOOEEO OEE 0546565 0655640600 6 6b EOC DONS passim

S. Feldstein and L. Costello, The Ordeal of As-

EY SED oi iecvcededaceseecweuaeds 18

R. Hofstadter, Social Darwinism in American

<a Owe bus ksavkdwsdeuseces wees 19

Lowell, The Colonial Expansion of the United

States, 83 Atlantic Monthly 145 (1899) ..... 19

Webster’s Third New International Dictionary

SD 00 neseaeasecadesscousdnesyubeciueds 6

— see ee ee Cet eC See ee SS

No. 85-2169

In Tue

Supreme Court of the United States

Ocroser Term, 1986

SAINT FRANCIS COLLEGE, et al.

Petitioners,

Vv.

MAJID GHAIDAN AL-KHAZRAJI,

a/k/a MAJID AL-KHAZRAJI ALLAN,

Respondent.

On Writ Of Certiorari To The United States

Court Of Appeals For The Third Circuit

BRIEF OF MEXICAN AMERICAN LEGAL DEFENSE

AND EDUCATIONAL FUND AND EFUERTO RICAN

LEGAL DEFENSE & EDUCATION FUND AS

AMICI CURIAE IN SUPPORT OF RESPONDENT

INTEREST OF AMICI CURIAE

The Mexican American Legal Defense and Educational

Fund is a national civil rights organization established in

1967. Its principal object is to secure, through litigation

and education, the civil rights of Hispanics living in the

United States. The Puerto Rican Legal Defense & Educa-

tion Fund is also a national civil rights organization.

Founded in 1972, its principal object is to secure, through

litigation and education, the civil rights of Puerto Ricans

and other Hispanics living in the United States.

= =

Section 1981 of Title 42, United States Code, has long

been an important means of redress for Hispanics victim-

ized by discrimination. In the case at ‘ar, petitioners ask

that this Court adopt an extremely narrow view of the

discrimination prohibited by Section 1981. If petitioners

were to prevail in this case, some doubt might well be

cast on the continued availability of Section 1981 as a

means of combatting invidious discrimination against His-

panic Americans. For that reason, both of the amici

curiae have a substantial interest in this case.

The parties have consented to the filing of this brief,

which is therefore submitted pursuant to Supreme Court

Rule 36.2.

SUMMARY OF ARGUMENT

This brief amicus curiae is respectfully submitted in

support of the judgment of the United States Court of

Appeals for the Third Circuit, and we specifically adopt

the arguments urged in respondent’s brief. The focus of

this brief, however, is limited to showing that the judg-

ment below is mandated by the intent of Congress, as

manifested in the legislative history of Section 1981.

1. This case presents an important question of stat-

utory construction: the precise scope of the class which

Congress intended to protect against private discrimi-

nation under 42 U.S.C. § 1981. The answer to this question

can be found in the debates of the Thirty-Ninth Con-

gress, which enacted the Civil Rights Act of 1866, includ-

ing the original version of Section 1981, and several ad-

ditional statutory provisions concerned with issues. of

—3—

“race.” These debates establish that the Thirty-Ninth Con-

gress intended to prohibit discrimination based on racial

groupings, not in the narrow or technical sense in which

that concept is sometimes used today, but in a broader

sense that includes what we now call ethnic and ancestral

groupings. The debates of the Thirty-Ninth Congress in-

clude frequent references to “race,” but the context of

those references manifests a Nineteenth Century usage of

the term, a usage which is inconsistent with any neatly

defined concept of scientifically distinct “races.” Thus, the

ethnic groups to which Members of Congress specifically

referred as “races” include the “Anglo-Saxon,” “Celtic,”

“German,” “Gypsy,” “Hindu,” “Irish.” “Jewish,” “Latin,”

“Scandinavian,” and “Spanish” ancestral groups. More-

over, proponents of the 1866 Act specifically emphasized

that this legislation was intended to protect the rights

of all such groups.

In other words, the legislative history unequivocally es-

tablishes that the Thirty-Ninth Congress intended to pro-

hibit discrimination of a “racial” character. The legislative

history also shows that the Thirty-Ninth Congress under-

stood and used that term in an inclusive sense, which en-

compasses discrimination based on membership in ethnic

and ancestral groups, which the Thirty-Ninth Congress

did not significantly distinguish from groupings based on

color or distinctive physiognomy.

2. The intent of the Thirty-Ninth Congress was subse-

quently reaffirmed when, following ratification of the Four-

teenth Amendment, the Forty-First Congress partially re-

stated and wholly reenacted the 1866 Act as part of the

Enforcement Act of 1870. The 1870 Act originated as a

simple voting rights bill aimed at enforcing the provisions

of the Fifteenth Amendment. As the bill passed through

Congress, however, it evolved into a more comprehensive

a

enactment, which also incorporated the equal protection

principles embodied in the Fourteenth Amendment. As

this Court has long recognized, the concept of equal pro-

tection draws no legally significant distinction between

“race” and “national origin.’’ See, e.g., Graham v. Richard-

son, 403 U.S. 365 (1971); Strauder v. West Virginia, 100

U.S. 303 (1880). Thus, the Forty-First Congress’s explicit

incorporation of equal protection principles in Section 1981

underscores the Thirty-Ninth Congress’s original intention

of prohibiting private discrimination based on ethnicity or

ancestry.

ARGUMENT

THE LEGISLATIVE HISTORY OF SECTION 1981

DEMONSTRATES THAT CONGRESS INTENDED TO PRO-

HIBIT DISCRIMINATION BASED ON ETHNIC AND AN-

CESTRAL GROUP STATUS.

A. The Thirty-Ninth Congress Understood The Term

““Race’’ To Include Ethnic And Ancestral Groups.

When the Thirty-Ninth Congress enacted Section 1981

in its original form, Congress intended to protect the

rights of a certain class of people to be free from private

discrimination in certain contexts. Although the lower fed-

eral courts have divided with respect to the proper defini-

tion of that class, that conflict in authority is wholly un-

necessary because it is based on the courts’ failure to con-

sider exactly what Congress said and meant when it enacted

the statute.

The debates of the Thirty-Ninth Congress show that

Congress intended to legislate protection for a class de-

=

scribed in “racial” terms. Moreover, when the statutory

language is viewed in concert with the legislative history

of Section 1981 and the related bills that were debated

in 1866, it is manifest that the Thirty-Ninth Congress com-

monly used the word “race” to encompass the concepts

of ethnicity and ancestry, and that Congress intended, in

prohibiting discrimination of a “racial’’ character, to pro-

hibit discrimination based on ethnicity and ancestry, as

well as discrimination based on color. In other words, the

legislative history shows that Congress did not intend to

limit the application of Section 1981 to discrimination

based on differences of color or physiognomy. Congress

recognized that differences in language, cultural traditions,

and ancestry may stimulate invidious discrimination based

on “race.” It was the intention of the Thirty-Ninth Con-

gress to prohibit all such invidious discrimination.

As this Court recently observed, “{s]tatutory construc-

tion must begin with the language employed by Congress

and the assumption that the ordinary meaning of that lan-

guage accurately expresses the legislative purpose.”’

Park’N Fly, Inc. v. Dollar Park And Fly, Inc., 469 U.S.

189, 194 (1985). But common usage changes over time, as

Justice Holmes noted in Towne v. Eisner, 245 U.S. 418,

425 (1918):

A word is not a crystal, transparent and unchanged,

it is the skin of a living thought and may vary great-

ly in color and content according to the circumstances

and the time in which it is used.

Thus, in construing a statute that was first enacted almost

a century and one quarter ago, this Court must strive

to understand the words that Congress used in the precise

sense in which those words were then commonly under-

stood; modern significations must not be allowed to ob-

scure Congress’s true meaning and intent. In other words,

~

if Congress’s intent is to be ascertained, a statute must

be interpreted in light of popular usage contemporary with

the statute’s enactment, and not in the false light of

popular usage prevailing at the time the statute is con-

strued. Perrin v. United States, 444 U.S. 37, 42 (1979);

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

In terms, Section 1981 guarantees that “{aJll persons .. .

shall have the same right . . . to make and enforce con-

tracts ... as is enjoyed by white citizens ....” 42

U.S.C. § 1981. On its face, Section 1981 therefore appears

to create a right in favor of an undefined class of “non-

white” persons.

This Court has already held that the statutory phrase

“the same right . . . as is enjoyed by white citizens” sig-

nifies only the “racial character” of the rights which the

statute protects, and does not foreclose white citizens from

stating a Section 1981 claim for racial discrimination.

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

273, 293 (1976). As the legislative history shows, the im-

port of this phrase is to manifest Congress’s intention not

to reach discrimination based on grounds other than “race”

1 For p ses of this brief, we assume that the common under-

standing of the term “race” has narrowed somewhat since 1866.

This change is doubtless due to the rise of modern anthropological

science and its influence upon our society. At the same time,

however, it is important to recognize that modern lexico phy

still defines the term in the broader way that it was used y the

Thirty-Ninth Congress. For example, Webster’s defines “race” to

mean “the descendants of a common ancestor: a family, tribe, peo-

ple, or nation belonging to the same stock” or “a class or kind

of individuals with common characteristics, interests, appearance,

or habits as if derived from a common ancestor.” Webster’s Third

New International Dictionary at 1870 (1961). As examples of

proper usage, Webster’s notes the expressions “the Anglo-Saxon

race” and “the Jewish race.” Id.; see also page 18, note 10, infra.

=~ =

(as Congress understood that term), such as sex and age.

Id. Representative Shellabarger, one of the sponsors of

the bill, made that point with abundant clarity during the

1866 debates (Cong. Globe, 39th Cong., 1st Sess. 1293

(1866)?):

Your State may deprive women of the right to sue

or contract or testify, and children from doing the

same. But if you do so, or do not do so as to one

race, you shall treat the other likewise.

Plainly, the legislative history contains many references

to discrimination on account of “race.” But the definitional

distinction sometimes drawn today, between “race” and

“national origin” discrimination, simply did not exist in

1866. To the Thirty-Ninth Congress—and to the American

public for many years before and after 1866—the concept

of “race” included what we now commonly call “ethnic

groupings,” and the term was therefore used, not only

to distinguish blacks of African descent and the various

peoples of Asia from persons of European ancestry, but

also to distinguish among the several ancestral groups of

European peoples and the various peoples of Latin or His-

panic ancestry. The legislative history of Section 1981 re-

flects that Nineteenth Century usage of the term “race.”

The language of Section 1981 and its companion, 42

U.S.C. § 1982 (“Section 1982’’)® originated in § 1 of the

2 The abbreviation “Cong. Globe” will be used in this brief to

refer to Cong. Globe, 39th Cong., 1st Sess. (1866).

* Section 1982 grants to “{aJll citizens . . . the same right...

as is en} yed by white citizens... to... hold. . . real and per-

sonal property.” 42 U.S.C. § 1982.

The proper definition of the class protected under Section 1982

is the question presented in Shaare Tefila Congregation v. Cobb,

No. 85-2156, which has been consolidated with this case for argu-

ment. Because of the common genesis of Sections 1981 and 1982,

(Footnote continued on following page)

—~3—

Civil Rights Act of 1866, 14 Stat. 27 (the “1866 Act’’).

General Building Contractors Association v. Pennsyl-

vania, 458 U.S. 375, 383-84 (1982); see also McDonald,

427 U.S. at 286 (Section 1981); Jones v. Alfred H. Mayer

Co., 392 U.S. 409, 422-23 (1968) (Section 1982). This Court

traditionally has looked to the 1866 debates as the primary

source of legislative history for both Sections, because it

was during the 1866 debates that the Statutory language

was most comprehensively discussed. See, e.g., General

Building Contractors, 458 U.S. at 386-88; McDonald, 427

U.S. at 287-96; Runyon v. McCrary, 427 U.S. 160, 173

(1976); Sullivan v. Little Hunting Park, Inc., 396 U.S.

229, 237 (1969); Jones, 392 U.S. at 422-37; Georgia v.

Rachel, 384 U.S. 780, 791 (1966).4

In ascertaining the true sense in which the Thirty-

Ninth Congress used the term “race,” the debates con-

cerning the 1866 Act itself provide only part of the story.

3 continued

the same principles must govern in both cases. See General Build-

ing Contractors Ass’n v. Pennsylvania, 458 U.S. 375, 384 (1982)

(both ony 1981 and Section 1982 originated in the Civil Rights

Act of 1866).

* The 1866 Act was enacted to enforce the provisions of the Thir-

teenth Amendment. The Civil Rights Cases, 109 U.S. 3, 22 (1883).

After ratification of the Fourteenth Amendment, Congress re-

enacted the 1866 Act in toto as § 18 of the Enforcement Act of

1870, 16 Stat. 140 (the “1870 Act”). General Building Contrac-

tors, 458 U.S. at 385 n.11; Jones, 392 U.S. at 436 n.71. However,

§ 16 of the 1870 Act also contained, “with minor changes,” that

ei of the 1866 Act which is now codified as Section 1981.

unyon, 427 U.S. at 168-69 n.8; Jones, 392 U.S. at 436. See Cong.

Globe, 41st Cong., 2d Sess. at 3689 (1870). Thus, this Court has

held that Section 1981 traces its lineage to both the 1866 Act and

the 1870 Act (Runyon, 427 U.S. at 169 n.8), and therefore reflects

the principles embodied in both the Thirteenth and Fourteenth

Amendments. General Building Contractors, 458 U.S. at 386. The

— of the 1870 Act is discussed below. See pages 21-23,

infra.

- =

During the first half of 1866, Congress debated four other

measures in which issues of “race” were both central and

the subject of repeated discussion. Among those measures

was the joint resolution that was eventually ratified as

the Fourteenth Amendment. See General Building Con-

tractors, 458 U.S. at 384, 391. In addition, Congress

debated the expanded Freedman’s Bureau bill (S. 60),

which covered much the same ground as the 1866 Act.

Jones, 392 U.S. at 423 n.30, 428 n.39. Also under con-

sideration were H.R. 1, a bill to expand the right of suf-

frage in the District of Columbia (see, e.g., Cong. Globe

at 216, 255, 311), and S.R. 11, a resolution concerning

“provisional governments in rebel states” (see, e.g., id.

at 291). In all of the debates concerning these various

measures, the word “race” was repeatedly used, not

simply to signify groups identifiable by color or physi-

ognomy, but also to describe the various national or ethnic

groupings that were commonly recognized then and still

are recognized today.

Congress’s use of language during the 1866 debates ex-

hibited three marked characteristics. First, the term “race”

was used as a means of distinguishing among various

groups, which we now commonly call “ethnic” or “ances-

tral’”’ groups, including the various ancestral groups of

European peoples. Congress’s use of the term “race” does

not evidence a definition based solely on distinctions of

color or physiognomy. Rather, it reflects a broader defini-

tion encompassing discernible, commonly recognized ethnic

traits. Second, Hispanics or Latins were expressly men-

tioned as a “race” separate and apart from whites. Third,

the term “white” was often used in a very narrow sense

to describe persons whose ancestors had emigrated to this

country from England. In addition, the legislative history

shows that Congress clearly intended the 1866 Act to af-

= SS

ford protection against private discrimination to all such

“racial’”’ groups.

1. *‘Race’”’ As Including Ancestral Groupings

Speeches referring to a variety of “races,” each cor-

responding to what we would now call an “ethnic” group,

were common. For example, Senator McDougall, speak-

ing against the expanded Freedman’s Bureau bill, stated

(Cong. Globe at 401, emphasis added):

I believe something in that Scandinavian race that

came from the frozen North .... I believe something

in the Saxon and the Celt. But the Numidian. . .

and the Carthaginian, not of northern, but of high

eastern blood, went down, and so did India, and so

did the East, and so did Italy, even before the north-

ern barbarians.

* * *

[NJever, while I am able to express myself either by

word or action, will I commit the great legacy of our

fathers, our Constitution . . . to any who are inferior

to the properly understood white races.

Speaking against a subsequently rejected version of the

Fourteenth Amendment resolution, Representative Shella-

barger, a proponent of the Civil Rights bill that was even-

tually enacted as the 1866 Act, stated that the resolution

would (id. at 405):

authorize[ ] the States to wholly disfranchise entire

races of its people, and that, too, whether that race

be white or black, Saxon, Celtic, or Caucasian... .

° This version of the Fourteenth Amendment resolution would

have permitted each state to disfranchise any group of persons,

but would have reduced that state’s congressional representation

accordingly. See Bickel, The Original Understanding and the

Segregation Decision, 69 Harv. L. Rev. 1, 30-31 (1955).

—

Speaking against the Civil Rights bill itself, Senator

Cowan observed that the early American colonists granted

equal political privileges (id. at 499):

to men of their own race from Europe. They opened

[the door] to the Irishman, they opened it to the

German, they opened it to the Scandinavian races of

the North.

Similarly, Senator Cowan also asked (id.):

I should like the honorable Senator from Illinois

{Senator Trumbull] or any other Senator to tell me

what is meant by the word “race,” and where it is

settled that there are two races of men, and if it is

settled that there are two or more, how many. Where

is the line to be drawn?

No one responded to Senator Cowan’s question. But that

question, coupled with Senator Cowan’s own earlier use

of the term “Scandinavian races,” indicates that “race”

had no narrow or technical meaning for him. For Senator

Cowan, as for virtually all of the Members who spoke,

“race’”” was simply a colloquial equivalent for “ethnic

group,” “nationality,” or “people.”

Representative Shellabarger explained the coverage of

the Civil Rights bill most explicitly in ethnic “race” terms

(id. at 1294):

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, or shall ever make

a contract in Ohio . . .? If Ohio may pass such a law,

and exclude a German citizen, not because he is a

bad man ... but because he is of the German nation-

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

American citizen admitted to all its high privileges

. . and yet that citizen is not entitled to either con-

tract, inherit, own property, work, or live upon a

single spot of the Republic, nor to breathe its air.

=~ =

Similarly, Representative Lawrence stated that the Civil

Rights bill would protect groups of ‘naturalized citizens”

against state hostility. Jd. at 1833.6

Still other ethnic groups that were described as “races”

were Gypsies (id. at 498, remarks of Sen. Cowan; id. at

1857-58, President Johnson’s veto message”), Jews (id. at

542, remarks of Rep. Dawson), and “Hindoos” (id. at 523,

remarks of Sen. Davis).

2. ‘“‘Latins’’ As A Distinct ‘‘Race’’

Another common usage is reflected in various Members’

discussions of their perception that the Latin or Spanish

“race,” unlike the Anglo-Saxon or white “race,” had failed

to establish stable governments in the Western Hemi-

sphere. Representative Kasson argued (id. at 238):

Why, sir, look at those countries where mixed bloods

have controlled the Government by universal suffrage.

Look at Mexico and the South American republics. . . .

Look at the Latin races of the world, and where have

they ever succeeded in establishing a permanent and

reliable republican Government . . .?

° Representative Lawrence’s comments concerning the protection

afforded to “naturalized citizens” necessarily referred to members

of various white ethnic groups, rather than to blacks or Orientals.

because only “free white person{s]” were entitled to naturalization

until 1870. See Act of March 26, 1790, 1 Stat. 103; see also Act of

July 14, 1870, 16 Stat. 254 (extending the right of naturalization to

“aliens of African nativity and to sarees of African descent”). In

1866, therefore, any protection envisioned for “naturalized citizens”

necessarily meant protection for members of white ethnic groups—

the very groups that would be excluded from protection under Section

1981 if petitioners’ construction were adopted.

7 President Johnson vetoed the Civil Rights bill, but both Houses

_— wy — the President’s veto. See Bickel, 69 Harv.

. Rev. at 28-29.

- =

Speaking of Mexico and Peru, Senator Morrill stated (id.

at 251):

The dominance of these colonists of the Spanish race

. . . was lost only when the gangrene of miscegena-

tion had wasted the energies . . . of that portion of

the people... .

This decay of national virtue and prowess was most

striking in the Spanish-American countries where

there was the greatest admixture of the races; hence

Mexico was conspicuous in that respect.

Similarly, Representative Kelley suggested that the men

who discovered America were not “what we call white

men,” but were ‘‘what are generally known as Basque.”

Id. at 306. Finally, Representative Dawson claimed (id.

at 542):

It is impossible that two distinct races should exist

harmoniously in the same country, on the same foot-

ing of equality by the law. The result must be a dis-

gusting and deteriorating admixture of races, such

as is presented in the Spanish States of America by

the crossing of the Castilian with the Aztee and the

negro.

Thus, Mexicans, either by virtue of their “Latin” blood

or because of their intermarriages, were perceived as a

‘race’ separate and apart from whites and blacks, as

Representative Johnson’s remarks also indicate (id. at

306):

What is it that has torn Mexico all to pieces? The

negro blood that runs through the race.

3. ‘‘White Race’’ As ‘“‘Anglo-Saxon Race”’

Finally, far from identifying themselves simply as “white,”

many Members of Congress specifically advanced the image

of an “Anglo-Saxon race,” excluding from their member-

ship many persons considered “white” today. Thus, the

atin.

term ‘‘white race’ itself appears to have been afforded

an ethnic signification which excluded those whose ances-

tors had not emigrated to this country from England.

Speaking against the District of Columbia Suffrage bill,

Representative Kasson stated (id. at 238):

No one denies, as I understand it, that the Latin

race, that the mixed races of Indian and Latin, or

the mixed race of blacks and whites, or any other

races, have developed, as the Anglo-Saxon race has

done, the power to govern itself... .

Senator Nesmith, speaking on the question of provisional

governments in Southern states, observed (id. at 291):

I still believe that this is a white man’s Government,

framed by white men... . [T]he hardy, persevering,

industrious, brave, and intelligent Anglo-Saxon race

and their descendants, who brought civilization and

a Pn into the New World. . . are not to be over-

ridden ....

And, on the same topic, Senator Stewart stated (id. at

298):

I believe the Anglo-Saxon race can govern this coun-

try.... I believe it because it is the only race that

has ever founded such institutions as ours.

Indeed, Representative Dawson’s comments on the ex-

panded Freedman’s Bureau bill explicitly show that he

saw himself and the other Members of Congress as members

of an Anglo-Saxon “race” (id. at 542, emphasis added):

Negro suffrage will, in its tendency, force down the

Anglo-Saxon to the negro level, and result inevitably

in amalgamation and deterioration of owr race.

4. Act Applicable To All Such Groups

The foregoing survey demonstrates that the Thirty-

Ninth Congress attributed no anthropologically fixed mean-

—15—

ing to the word “race,’”’ but used that term in a broad

sense to describe national or ethnic groups which had at-

tained an historically distinct identity. Although not every

Member of the Thirty-Ninth Congress spoke in that manner,

no one protested that the many who did so were guilty

of distorting the common language of the day.®

To be sure, the most immediate problem faced by the

Thirty-Ninth Congress was protection of recently freed

slaves. General Building Contractors, 458 U.S. at 388.

But it is equally true that the Thirty-Ninth Congress in-

tended to legislate more generally, as this Court has noted

(McDonald, 427 U.S. at 296):

[T}he statutory structure and legislative history per-

suade us that the 39th Congress was intent upon es-

tablishing in the federal law a broader principle than

would have been necessary simply to meet the par-

ticular and immediate plight of the newly freed Negro

slaves.

The scope of that principle can be understood both from

the inclusive construction which the Thirty-Ninth Congress

gave to the word “race,” and from Congress’s narrow under-

standing of the term “white,” which focused on Anglo-

Saxon ancestry, to the exclusion of Gypsy, Hindu, Jewish,

and Latin groups, all of which would generally be consid-

ered “Caucasian” in today’s racial terminology.

That is not to say that Congress included ethnic or na-

tional origin groups within the class to be protected by

Section 1981 simply because the available vocabulary made

8 Only one member of the Thirty-Ninth Congress dwelt at an

length on what might be considered an anthropological approac

to race. See Cong. Globe at 246-47 (remarks of Sen. Morrill)

However, nothing in the legislative record suggests that Congress

had any interest in Senator Morrill’s analysis.

—16—

their exclusion impossible. On the contrary, the Thirty-

Ninth Congress, with a remarkably prescient understand-

ing that this Nation would soon be transformed into a

Nation of Immigrants, affirmatively intended that discrimi-

nation against ethnic groups should be addressed on the

same terms as discrimination against blacks. As Represen-

tative Lawrence explained (Cong. Globe at 1833):

This bill, in that broad and comprehensive philan-

thropy which regards all men ir tteir 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 citi-

zen, including the millions of people of foreign birth

who will flock to our shores to become citizens and

to find here a land of liberty and law.

Moreover, the proponents of the 1866 Act emphasized its

application to all such groups. See id. at 1294 (remarks

of Rep. Shellabarger); id. at 1833 (remarks of Rep.

Lawrence).

If Congress’s only purpose had been to address the

special problems of newly freed slaves, it could have cast

the 1866 Act in terms of “previous condition of servitude.”

Or, if Congress’s purpose had been to grant rights only

to blacks, it could have done so using the common terms

“blacks,” “Negroes,” or “Africans,” which would have af-

forded protection to all blacks, without regard to whether

they were newly emancipated. Cf. United States v. Loui-

siana, 225 F. Supp. 353, 363-64 n. 9 (E.D. La. 1963) (three-

judge court) (Wisdom, J.), aff'd, 380 U.S. 145 (1965). But,

by providing that “all persons” should have “the same

right ... as is enjoyed by white citizens,” Congress

necessarily, and intentionally, opened up the field beyond

= =

discrimination against blacks.® The logical conclusion—com-

pelled by the language used in the debates—is that by

opening up the class beyond newly freed blacks, the 1866

Act was meant to prohibit discrimination against all ethnic

groups.

B. In Just The Same Manner As The Thirty-Ninth Con-

gress, This Court Regularly Used The Term ‘‘Race”’ To

Include Ethnicity During The Nineteenth And Early

Twentieth Centuries.

The Thirty-Ninth Congress’s own pronouncements well

demonstrate the sense in which it understood and em-

ployed the term “race.” In addition, contemporaneous

decisions of this Court establish that Congress’s under-

standing of the term was not idiosyncratic, but fully con-

formed to then-current usage.

Only two years before Congress enacted Section 1981,

this Court had occasion to use the term “race” in the

same sense in which the Thirty-Ninth Congress used it,

that is, in the sense of “ethnic group.” In White v. United

States, 68 U.S. (1 Wail.) 660, 680-81 (1864), the Court

observed: “The Mexicans of the Spanish race, like their

progenitors, were a forma! people . . . .” Nearly a decade

later, in The Slaughter-House Cases, 83 U.S. (16 Wall.)

36, 72 (1873), this Court observed that the Thirteenth

Amendment would prohibit slavery ‘“‘of the Mexican or

Chinese race.”

® As a matter of pure logic, it might be argued that the Thirty-

Ninth Congress cast the 1866 Act in broader terms only because

Congress intended to prohibit invidious discrimination against

Orientals and American Indians (but no other groups), in addition

to blacks. That theoretical possibility is unconvincing because the

a debates evidence no special solicitude for Orientals and American

ndians.

—

That expansive sense of the word “race” persisted well

into the Twentieth Century. In Hodges v. United States,

203 U.S. 1, 17 (1906), the Court said that the Thirteenth

Amendment

reaches every race and every individual, and if in any

respect it commits one race to the Nation it commits

every race and every individual thereof. Slavery or

involuntary servitude of the Chinese, of the Italian,

of the Anglo-Saxon are as much within its compass

as slavery or involuntary servitude of the African.

Similarly, in Panama Railroad Company v. Rock, 266

U.S. 209, 212 (1924), this Court described Chile and Panama

as being “predominantly Spanish [as distinct from French]

in race.” Even as late as 1934, Justice Cardozo questioned

whether Mexicans were “white persons” entitled to be

naturalized. Morrison v. California, 291 U.S. 82, 95 n.5

(1934). Indeed, Justice Cardozo went on to note that Mex-

ican migration to California had resulted in “racial prob-

lems.” Id.

It should not be assumed that the eminent authors

of these opinions were simply careless or imprecise in

their use of language. See page 6, note 1, infra. The point

is not whether they were “correct,” as a matter of

modern anthropological science, in referring to Anglo-Saxon,

Chinese, French, Italian, Mexican, and Spanish ethnic

groups as “races.” The point is that they did so,!° and

10 Indeed, the Court’s diction was far from idiosyncratic, but fully

agreed with then-current usage. For example, an 1868 account of

Irish immigration, which is quoted in S. Feldstein and L. Costello,

The Ordeal of Assimilation 27 (1974), stated that “10,000 of the

Irish race” died in quarantine after arrival here. Similarly, in a

1917 article, which is also quoted by Feldstein and Costello (id.

at 54), an Ellis Island physician observed that:

(Footnote continued on following page)

= =

their usage of the term “‘race’’ is persuasive evidencc of

the common understanding of the times.!!

The words of the Thirty-Ninth Congress must be con-

strued as its Members used them. Those Members did

not omit “national origin” as a basis for discrimination

when they spoke of “race’’ (Ortiz v. Bank of America,

547 F. Supp. 550, 555 (E.D. Cal. 1982)), and no such omis-

sion was then inherent in common language usage.

It is therefore proper to say that the legislative history

shows that Congress intended to address discrimination

10 continued

Those who have inspected immigrants know that almost every

race has its own type of reaction during the line inspection.

On the line if an Englishman reacts to questions in the manner

of an Irishman, his lack of mental balance would be suspected.

The converse is also true. If the Italian responded to ques-

tions as the Russian Finn responds, the former would in all

probability be suffering with a depressive psychosis.

In an 1899 article, President Lowell of Harvard argued that New

Mexico was not ready for statehood because “a large part of the

inhabitants [were] of Spanish race, and not sufficiently trained in

habits of self-government.” Lowell, The Colonial Expansion of the

United States, 83 Atlantic Monthly 145, 149 (1899). By contrast,

Lowell observed, the “English-speaking race” had “ litical good

sense.” Id. at 150. See also R. Hofstadter, Social Darwinism in

American Thought, 171-72 (1955) (quoting contemporary sources

justifying military campaigns against Mexico through the alleged

superiority of the “Anglo-Saxon race’’).

11 Although the dictionary definition of the term “race” may not

have changed significantly in the last 120 years (see page 6, note

1, supra), there is little doubt that the term describes an evolv-

ing concept of social science. See generally The Concept of Race

(A. Montagu ed. 1964). If this Court were to ignore the intent of

the Thirty-Ninth Congress and hold that a present-day definition

of “race” defined the scope of the statute, the courts’ approach

to defining races would necessarily change as social and scientific

attitudes changed. Under such an apprcach, the meaning of the

statute would always be in flux.

—20—

of a “racial character.”’ But properly seen in its contem-

porary linguistic context, that intent comprehends discrim-

ination against all persons based on their connection to

commonly recognized national or ethnic groups, as well

as discrimination based on color.

This Court’s function in cases of statutory construction

is to give effect to Congress’s intent. Merrill Lynch,

Pierce, Fenner & Smith, Inc. v. Curran, 456 U.S. 353,

377-78 (1982). In this case, the Court must adhere to the

original and manifest intent of the Thirty-Ninth Congress,

and the Court must therefore hold that discrimination

based on Arab ancestry—as well as discrimination based

on Jewish, Hispanic, Spanish, or other ethnic ancestry—

is prohibited by Section 1981, notwithstanding any inter-

vening change in the common usage of the words “‘race”’

or “‘white.”’

A CONSTRUCTION OF SECTION 1981 WHICH INCLUDES

NATIONAL ORIGIN OR ETHNIC GROUP DISCRIMINA-

TION IS MANDATED BY CONGRESS’S PURPOSE IN RE-

ENACTING THE STATUTE IN 1870.

Congress’s 1866 language usage clearly establishes the

intended inclusion of ethnic groups within the class to be

protected by the 1866 Act. In addition, Congress’s 1870

restatement and reenactment of the 1866 Act confirms

that intention. Framed against the equal protection back-

ground of the Fourteenth Amendment, the 1870 Act was

intended to remedy the same kind of class-based discrimi-

nation already prohibited to the states under the Equal

Protection Clause.

- =

A. The 1866 Act, As Recast In The 1870 Act, Was Intended

To Embody A Fourteenth Amendment Equal Protection

Standard.

As this Court has observed, the 1866 Act was “an ini-

tial blueprint of the Fourteenth Amendment, which Con-

gress proposed in part as a means of ‘incorporat{ing] the

guaranties of the Civil Rights Act of 1866 in the organic

law of the land.’ ” General Building Contractors, 458 U.S.

at 389 (citation omitted). The 1870 Act ‘‘was enacted as a

means of enforcing the recently ratified Fourteenth Amend-

ment.” Jd. Thus, this Court noted a century ago that the

Due Process and Equal Protection Clauses of the Four-

teenth Amendment applied to “all persons . . . without

regard to any differences of race, of color, or of national-

ity” and that § 1977 of the Revised Statutes (which was

§ 16 of the 1870 Act and is now Section 1981) was enacted

to enforce those clauses “‘accordingly.’”’ Yick Wo v.

Hopkins, 118 U.S. 356, 369 (1886).

The proponents of the 1870 Act expressly embraced a

Fourteenth Amendment equal protection approach to the

statute. Both the House and Senate bills originally were

narrowly drafted as voting rights bills to enforce the Fif-

teenth Amendment. See Cong. Globe, 41st Cong., 2d Sess.

2755 (House); id. at 3479-80 (Senate). But Senator Stewart,

one of the sponsors, moved to amend the Senate bill by

including several sections “to secure to all persons the

equal protection of the laws.” Jd. at 3480. Senator

Stewart’s amendment contained three sections, the first

of which became § 16 of the 1870 Act (cuntaining the basic

provisions now found in Section 1981), and the third of

which provided (id.):

That the act to protect all persons in the United

States in their civil rights, and furnish the means of

their vindication, passed April 9, 1866, is hereby re-

- =

énacted; and said act, except the first and second sec-

tions thereof, is hereby referred to and made a part

of this act... .%

By framing a new civil rights provision (§ 16), and by

reenacting the 1866 Act in light of changed circumstances

(the incorporation of equal protection principles into the

organic law through the Fourteenth Amendment), Con-

gress explicitly embraced the view that Section 1981 and

Section 1982 go beyond “race discrimination” (as that

term is commonly used today), thus making the statutory

provision an equal protection analogue.

This Court already has held that Congress, in enacting

Section 1981, intended to incorporate the underlying equal

protection principles. In General Building Contractors,

12 As originally drafted, the third section of the Stewart amend-

ment apparently excluded § 1 of the 1866 Act—from which, as we

have already noted (see pages 7-8, supra), the operative language of

both Section 1981 and Section 1982 was derived. See General Build-

ing Contractors, 458 U.S. at 385 n.11. Thus, the net result of

Senator Stewart’s amendment would have been to extend the

rights of entering into contracts and bringing suit—restated from

the 1866 Act in § 16 of the 1870 Act—on the same terms as pro-

vided in the Equal Protection Clause, while eliminating entirely

the rights to hold real and personal property embodied in § 1 of

the 1866 Act but not restated in the 1870 bill.

That oversight was corrected, and § 18 of the 1870 Act as passed

by the Senate provided (Cong. Globe, 41st Cong., 2d Sess. at 3689

(1870):

That the act to protect all persons in the United States in

their civil rights, and furnish the means of their vindication,

passed April 9, 1866, is hereby reénacted ....

Thus, the Senate version of the 1870 bill not only contained a spe-

cific provision to protect the right to contract (§ 16), but also re-

enacted the whole 1866 Act, including the provisions now found

in Section 1982. And it did so expressly, as Senator Stewart said,

“to —" to all persons the equal protection of the laws” (id.

at .

= =

this Court looked to the historical linkage between the

Fourteenth Amendment and Section 1981 to hold that the

purposeful discrimination standard applicable to equal pro-

tection cases applies to private discrimination under Sec-

tion 1981. The Court stated (458 U.S. at 389-90):

The 1870 Act, which contained the language that now

appears in § 1981, was enacted as a means of enforc-

ing the recently ratified Fourteenth Amendment. In

light of the close connection between these Acts and

the Amendment, it would be incongruous to construe

the principal object of their successor, § 1981, in a

manner markedly different from that of the Amend-

ment itself.

Congress’s parallel consideration of the 1866 Act and

the Joint Resolution, followed not long after by the

passage of the 1870 Act (with its specific equal protec-

tion underpinnings), shows that Congress neither knew

any distinction between “race”’ and ethnicity or ancestry

nor intended to draw any such distinction. Interpreting

Section 1981 to include ethnicity or ancestry discrimina-

tion in an equal protection analysis is concordant with con-

gressional intent in both 1866 and 1870.

B. This Court’s Equal Protection Cases Show That There

Is No Legally Significant Distinction Between Discrimi-

nation Based On Race And Discrimination Based On

National Origin Or Ethnicity.

“National origin” means “ancestry.” Espinoza v. Farah

Manufacturing Co., 414 U.S. 86, 89 (1973). Like race,

ancestry (or ethnic background) is an “immutable char-

acteristic.”” Lockhart v. McCree, 106 S. Ct. 1758, 1766

(1986). Both are “‘determined solely by the accident of

birth.”” Frontiero v. Richardson, 411 U.S. 677, 686 (1973)

(plurality opinion).

—24—

In addition, both race and national origin may involve

distinctive physical characteristics that tend to distinguish

a person and therefore invite disparate treatment by those

who would practice discrimination. As a result, not only

the differences themselves, but ‘“‘stereotyped charac-

teristics not truly indicative of their abilities” have pro-

moted discrimination against members of both racial and

ethnic groups. Massachusetts Board of Retirement v.

Murgia, 427 U.S. 307, 313 (1976).

For these reasons, this Court has long treated race and

national origin alike under the Equal Protection Clause.

Graham v. Richardson, 403 U.S. 365, 371-72 (1971). As

Justice Stewart noted in Fullilove v. Klutznick, 448 U.S.

448, 525 (1980) (Stewart, J., dissenting):

The color of a person’s skin and the country of his

origin are immutable facts that bear no relation to

ability, disadvantage, moral culpability, or any other

characteristics of constitutionally permissible interest

to government. “Distinctions between citizens sole-

ly because of their ancestry are by their very nature

odious to a free people whose institutions are founded

upon the doctrine of equality.” Hirabayasni v. United

States, 320 U.S. 81, 100 [(1943)].

See also Frontiero, 411 U.S. at 686 (plurality opinion);

Strauder v. West Virginia, 100 U.S. 303, 308 (1880) (“Nor

if a law should be passed excluding all naturalized Celtic

Irishmen, would there be any doubt of its inconsistency

with the spirit of the [Fourteenth] amendment.”’).

Because the 1870 Act was framed in equal protection

terms, the equivalence of race and national origin discrimi-

nation under the Equal Protection Clause was intended

to be carried over to the prohibition of private discrimina-

tion under Section 1981. The irrelevance and unfairness

of basing governmental classifications on race and ancestry

=

is something this Court has long recognized. Private dis-

crimination on those grounds is no less irrelevant and un-

fair. That is what Congress recognized when it enacted

§§ 16 and 18 of the 1870 Act.%%

The concepts of “race’’ and ancestry are closely related.

The same rationale that condemns discrimination on the

one basis necessarily condemns discrimination on the

other. It would be contrary to Congress’s manifest intent

in enacting Section 1981 to separate the two concepts.

This Court should reaffirm Congress’s original intent to

provide protection against discrimination based on ancestry,

ethnicity, and national origin.

13 Moreover, this Court has long recognized that race and color

differences “have defined easily identifiable groups which have at

times required the aid of the courts in securin ual treatment

under the laws.” Hernandez v. Texas, 347 U.S. 475, 478 (1954).

Ancestry and ethnicity are also recognized bases for defining

groups in our society. Whether by appearance, by language, by

— traditions, by gon ey ~J y aes = |

ethnic groups are easily ized an too uently targete

for twvidleus discrimination. As this Court said in Castaneda v.

Partida, 430 U.S. 482, 495 (1977), “it is no longer open to doubt

that Mexican-Americans are a clearly identifiable class” for equal

protection purposes. See also Manzanares v. Safeway Stores, Inc.,

593 F.2d , 970 (10th Cir. 1979) (group identity of Mexican-

Americans is “perfectly clear and well understood’ for Section

1981 analysis).

—26—

CONCLUSION

The judgment of the United States Court of Appeals

for the Third Circuit should be affirmed.

Respectfully submitted,

ANTONIA HERNANDEZ BARRY SULLIVAN

E. RICHARD LARSON Counsel of Record

THERESA BUSTILLOS WILLIAM D. SNAPP

MEXICAN AMERICAN LEGAL C. STEVEN TOMASHEFSKY

DEFENSE AND MARK DUPONT

EDUCATIONAL FUND JENNER & BLOCK

634 South Spring Street One IBM Plaza

Los Angeles, California 90014 Chicago, Illinois 60611

(213) 629-2512 (312) 222-9350

LINDA FLORES

KENNETH KIMERLING

PUERTO RICAN LEGAL

DEFENSE & EDUCATION

FUND, INC.

99 Hudson Street

New York, New York 10013

(212) 219-3360

Attorneys for Amici Curiae

January 22, 1987

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